A3, i i Cornell University Law Library , The Moak Collection 5* PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 in riEnoRY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 4977.A2 1865 Cases of contested elections in Congress 3 1924 019 947 617 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 994761 7 , 38th Congress, ) HOUSE OP REPRESENTATIVES. ( Miss. Doc. ' L 2d Session. ) r\ _vw \ No. 57. K' CASES CONTESTED ELECTIONS IN CONGRESS, PROM 1834 TO 1865, INCLUSIVE COMPILED BY D. W. BARTLETT, CLERK TO THE COMMITTEE OP ELECTIONS. WASHINGTON: GOVERNMENT PRINTING OFFICE. I6P PREFACE. In compiling a new volume of " Contested Elections," as a continuation of the volume published in 1834, it has been found necessary to eliminate all ir- relevant matter, and adhere closely to the facts and the law. When the first vol- time was published, the debates in Congress as reported were exceedingly brief. To publish all the speeches made in Congress upon contested election cases since 1834 would require several volumes ; hence only brief extracts have been taken, which seemed to be necessary for the full explanation of the law and the facts in the case. A reference is made in each case to the debate so that it can be readily found. The majority report is always given, and the minority report whenever the resolutions reported by the majority were overruled ; as well as in some of th e more important cases. The chief points in each case are stated by way of pre- fix, and its history in Congress is appended to the report. The index will enable the reader to readily find not only every case, but every point raised and discussed in it. The references to documentary evidence in the reports have not been omitted, (following the example of the Massachusetts election reports and similar works,) though that evidence is not published herewith. The references may be convenient in some cases. The Senate cases were generally debated at great length, and, with two or three exceptions, no extracts have been made from the arguments. Where the reports failed to give a clear statement of the law and the facts, however, they have been extracted from the Senate debates. In the House of Representatives, February 11, 1865. On motion of Mr. Dawes, from the Committee of Elections, Resolved, That there be printed, for the use of the members of the House, the usual number of copies of the Digest of Election Laws made, under the order of the House, by the clerk of the Committee of Elections, together with a full index to the same, to be prepared by the said clerk, for which, and for the necessary revision and superintendence connected there- with, he shall be paid by the Clerk of the House a per diem for the days actually employed herein, not exceeding that paid to clerks of committees during the session of Congress. February 17, 1865. On motion of Mr. A. W. Clark, from the Committee on Printing, Resolved, That there be printed one thousand extra copies of the Digest of Election cases, including the cases which have occurred during the present Congress, for the use of this House. OASES CONTESTED ELECTIONS IN CONGRESS. TWENTY-FOURTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Claiborne, Virginia. Mr. Kilgorb, Ohio. Griffin, South Carolina. A* Buchanan, Pennsylvania. Hawkins, North Carolina. Maury, Tennessee. Hard, New York. Boyd, Kentucky. Burns, New Hampshire. Newland vs. Graham, of North Carolina. Whore testimony not given under oath was offered — Held, that it was inadmissible. The judges of elections having ascertained that certain votes had been, by mistake, put into the "legislative box," when they were intended for members of Congress, transferred the votes to the " congressional" box. The committee left it to the House to decide whether the vote should stand. The seat was vacated. IN t'he house of representatives, February 24, 1836. Mr. Boyd, from the Committee of Elections, to whom the subject had been re- ferred, submitted the following report : That the late election for a member of the House of Representatives of the United States, for the 12th congressional district of the State of North Carolina, took place on the 13th day of August last. That the law of North Carolina, in cases of contested elections, requires thirty days' notice previous to the meet- ing of the general assembly of an intention to dispute the election, with the ground on which the'same will be disputed, to be given by the person objecting to the individual declared elected ; and that the same notice of time and place now required in taking depositions at law shall also be required and proven on such investigation. — (2 vol. Revised Code, 827, chap. 466, 1796.) That notice was served on the sitting member on the second day of October last by the petitioner that he intended to contest his election, on the ground that illegal and unqualified votes had been given for him, and that legal and qualified votes offered for the petitioner had been rejected ; that a notice was afterwards served on the sitting member, on the 18th day of October last, by the petitioner, stating that on the 29 th day of October thereafter he should pro- ceed to take the deDositions of Jas. D. Justice and others at Asheville, which 6 CONTESTED ELECTION CASES IN CONGRESS. depositions were to be used and read as evidence before the House of Represent- atives of the United States in the case in which he contested his election. Various other similar notices were subsequently served on the sitting member for taking depositions at other times and places, and similar notices were also served on the petitioner by the sitting member for taking depositions in his behalf. At the times and places thus notified the parties or their agents respectively met, and the depositions thus taken have been sent on to the Speaker of the House, and have been delivered over to the committee. The petitioner and sitting member appeared before the committee on the 15th day of December last, and an objection having been made by the sitting member to the said depositions as inadmissible evidence of the facts stated in them, that question was taken up and considered by the committee, after hearing the argu- ments of the sitting member and the petitioner thereon. The committee was of opinion that the depositions had been taken conformably to the laws of North Carolina upon the subject of contested elections ; and there being no law of Congress on the subject, and the usage being well established to allow deposi- tions to be read which had been taken and sworn to according to the laws of the State where the election had been held, and it appearing reasonable that depositions thus taken on similar notices from both parties, and in the presence (with one exception) of both parties or their agents, ought to be held sufficient, decided that they should be received. This decision of the committee was made known to the parties in the contro- versy on the 14th day of January last, and on the day following the sitting member made an application to be allowed further time, to the last day of Feb- ruary thennext, to. take additional testimony on his part. See papers marked J. G. This was objected to by the petitioner, on the grounds stated in the paper, dated 15th January, marked D. N. The committee, after hearing the arguments of the sitting member and the petitioner, rejected this application. They could find no precedent in which an application of a similar kind, even if made at an earlier period, had been granted, but several in which, notwithstanding the existence of more favorable circumstances, such applications had been rejected, both by Committees of Election and by the House. Without very strong reasons to show the necessity of further proof, (which the committee did not see in this case,) they considered that the right of contesting a seat in Congress would be useless and nugatory, if such postponements and protracted appointments for, taking additional evi- dence after the meeting of Congress should be allowed, when the parties had already had the same time to take their depositions, and, as appeared to the committee, a sufficient time. After this determination, the committee proceeded to examine the testimony, to hear the objections and statements of the petitioner and sitting member, and to determine from the evidence what votes should be taken from or added to their polls, as returned respectively. Several legal questions, as to the competency of certain parts of the evidence, arose in this investigation. The sitting member objected to a number of the petitioner's depositions which contained declarations proved by the witnesses to have been made after the- election by the voters therein named, of their having voted at the same election for the sitting member. He contended that these, being the declarations of persons not on oath, were inadmissible. It was contended by the petitioner that, as the law of North Carolina (Revised Code, 922, 1800, ch. 557) requires voting by ballot, and enacts that the voters shall not be compellable to give evidence for whom they voted, there could be no better evidence, and no other- evidence in most cases, than the voter's declarations ; that the voter's testimony being excluded, he ought to be allowed to produce the next best evidence in his power. The petitioner claimed, under this species of evidence, to deduct from the poll of the sitting member thirty- five votes which were thus proved to have* CONTESTED ELECTION CASES IN CONGRESS. 7 been given for him, and which he contended the depositions showed were illegal votes, the voters not possessing the requisite qualifications. The committee, however, deemed this species of evidence inadmissible, and did not, therefore, investigate the votes, of the sitting member objected to under this head. This decision confined the inquiry to cases of bad or illegal votes alleged to be found on the polls of the parties respectively, as proved by other evidence than the declarations of the voters. After a careful examination of the proofs on both sides, the committee find nineteen votes (see list marked A) which they consider bad, and which are sufficiently proved to have been given for the sitting mem- ber. That number, therefore, ought to be deducted from his poll. They also find eight bad votes, proved by the same sort of evidence, to have been given for the petitioner, and which are to be taken from his poll ; leaving the difference- eleven, and exceeding the sitting member's majority of seven, as returned, by four votes. To these the committee have thought proper to add three- votes as given for the petitioner at Henderson precinct, in Buncombe county, and strickew from his poll by the judges at Asheville on comparing the polls the day after the election. The law of North Carolina gives no power to the judges at one place of elec- tion to strike off votes or in any manner alter the return of the judges of any other place of election ; nor could the judges at the Henderson precinct, after taking the votes as legal, decide themselves, or authorize the judges at Ashe- ville to decide, that they were illegal. Having been received at the time of the election, the petitioner is entitled to them, unless they are proven to be bad ; no such proof was presented. This makes the petitioner's majority seven. To this the committee have added five votes, (see list A,) as having been legally offered for the petitioner, and illegally refused ; thus making his majority twelve. The committee return also herewith a list of the votes contended by the petitioner to have been illegally given to the sitting member, under that species of evidence rejected by the committee, of declarations proved to have been made by the voters, (marked B,) so that the House, if they should deem such evidence improperly rejected by the committee, may, by resorting to the depositions, ascertain the sufiiciency of the proof. They also return, filed here- with, papers marked C and D, showing the objections of petitioner, and the votes claimed by him ; said papers, and paper B, being presented by him. It appears from the evidence, that at Franklin, in Macon county, some ballots for members of Congress were put by mistake in the boxes for receiving votes for the State legislature, and some ballots for members of the State legislature into the box for members of Congress ; the election for both the State legislature and Congress being held at the same time and place, the boxes being in the same room for receiving the ballots, and about seven or eight feet apart. The testimony of Robert Hall, one of the judges, is, that he and the other judges, hearing of votes being put in the wrong boxes — that is, some in the legislative boxes that were intended for members of Congress, and vice versa — had them changed. He does not state how many ballots were thus changed, nor who they were for. Another witness, James W. Killian, says he saw the exchange of tickets at the close of the election, and that five or six for Newland were taken from the legislative box, and perhaps some for Graham, he does not recollect ; and some were taken from the Congress box, in like manner, and transferred to the legislative box. It appears, then, that the judges of election corrected what they were all satisfied was a mistake, by transferring the ballots into the right boxes from those in which they had been by mistake deposited. Robert Hall further states, that it is customary to correct such mistakes ; and it is easy to conceive that such mistakes might, under such circumstances, be committed, which the judges, before counting the ballots, might correct. There is no positive proof to show how many ballots were thus exchanged, nor who they were all for. Killian says there were five or six for Newland, and perhaps 8 CONTESTED ELECTION CASES IN CONGKESS. some for Graham, he does not recollect. It would therefore be difficult, in the opinion of the committee, if not impossible, from the testimony, to determine accurately how many of the five or six proven to have been for the petitioner should be taken from his poll, if it should be thought that any should be deducted, as it is left quite uncertain whether there were not some for the sitting member. The judges no doubt acted in good faith ; the mistake appears to have been corrected by them on the spot, and with every means of ascertaining the fact of the mistake, and without objection, and in a manner usual, as stated by Hall, on such occasions. If the House should think it right, under these circumstances, to interfere with their decision in correcting this mistake, the five or six votes thus given by the judges to petitioner can be deducted from the amount of his majority before mentioned. The committee found, on refer- ring to the case of Washburn and Kipley, (Contested Elections, page 679,) that the House had refused to interfere with a decision of the judges of election in that case, who declined correcting the mistakes made in that election, by depositing the ballots in the wrong boxes. The judges of this election in Maine, it seems from this case, did not consider it to be in their power to correct such a mistake. They may have considered that they had no means of ascer- taining whether it was a mistake or not. It appears, from that case, that tha ballots are put into the boxes by the voters themselves ; and it would seem, from several of the depositions in this case, that the ballots were usually handed to one of the judges or inspectors of the election, and by him deposited in the ballot-box, as the law of North Carolina requires. In this case, then, the mis- take having been made by one of the judges, and not by the voter, who had done everything in his power towards the fair exercise of his privilege, the judges have considered it their duty to correct their own mistake, and give the voter his vote ; and as they have considered that they had the" means of fairly correcting the mistake, they proceeded to do so openly, and without objections of the friends of either of the candidates. Under such circumstances, the com- mittee leave it to the House to say whether their proceeding should not be respected, and their return allowed to stand as they have placed it. Several objections were made by each of the parties to certain alleged irregularities in the proceedings of the officers by whom the elections were held at several places of voting in the said district. As, however, the committee entertain no doubt as to the fairness of the elections, and the integrity and impartiality of the offi- cers, and as no objection appears to have been made at the time to the particular proceeding or formality which is now objected to, they have considered it unnecessary to say anything further as to those objections, than that the pro- ceeding complained of might be deemed to have been waived or assented to, and are not, in the judgment of the committee, sufficient to affect the validity of the election, or to change the result to which the committee have arrived. On the whole, the committee submit the following resolutions : 1. That James Graham is not entitled to a seat in this house. 2. That David Newland is entitled to a seat in this house. In the House a motion was made to give the sitting member further time to take testimony ; but it was lost. Mr. Rencher, of North Carolina, moved the subjoined resolutions: 1. Resolved, That the depositions which have been communicated to the House by the Speaker, and laid on the table since the report of the Committee of Elections was made, whenever taken upon due notice, will be received by the House as testimony in this case. 2. Resolved, That the fire votes taken from the commons box at the Franklin precinct, in Buncombe county, and counted for the petitioner, ought not to be counted. 3. Resolved, That the three votes which were stricken from the petitioner's roll by the judges at Asheville, in Buncombe county, because it appeared by the return of the judges from the Henderson precinct that those of the votes given the petitioner were given by voters living CONTESTED ELECTION CASES IN CONGRESS. -9 in Yancey county, and which have now been added to his poll by the committee, ought not to be allowed. > 4. Resolved, That two votes (to wit, Robert Lankford and George Barkley) stricken from the roll of the sitting member by the committee, on the ground that they voted out of their proper county, ought to be restored, because there is no proof that they lived out of the county in which they voted. 5. Resolved, That two votes (to wit, Moses Pace and Andrew Morrison) which were proven by parol testimony to have been given for James Graham, out of the county in which they reside, and on that account have been stricken from his poll by the committee, ought to be restored, because it does not appear from the poll-books themselves that either of these men voted at the election. 6. Resolved, That William H. Milton ought to be stricken from the poll of the petitioner, because it appears that he had not paid a public tax. 7. Resolved, That the five votes found on page 6 of the report, which have been counted for the petitioner, but wljich were not given in at the polls, ought not to be counted. 8. Resolved, That there is no evidence that these men were qualified to vote, not having lived in the county where they offered to vote twelve months immediately preceding the day of election, as required by the constitution of North Carolina, or that they tendered their votes as required by the law of that State. They were decided by the Speaker to be out of order, and the House was brought to a direct vote upon the first resolution of the committee — that Mr Graham, the sitting member, was not entitled to his seat. The vote stood, yeas 114, nays 87. Upon the second resolution, that Mr. Newland was entitled to the seat, the vote stood, yeas 99, nays 100. The seat was then declared vacant. Note. — The debate upon this case covered a period of several months, and was, for the most part, upon preliminary questions. Mr. Newland's speech will be found on page 240, volume 3, Congressional Globe; Mr. Graham's on pages 240 and 241. The running debate upon the case occupies from page 240 to 272, volume 3, Congressional Globe. TWENTY-FIFTH CONGRESS, FIRST SE&SION. Committee of Elections. Mr.. A. Buchanan, Pennsylvania. Mr. Townes, Georgia. Griffin, South Carolina. Bkonson, New York. Hawkins, North Carolina. Pennybacker, Virginia. Kilgore, Ohio. Hastings, Massachusetts. Maurv, Tennessee. THIRD SESSION. Messrs. Rives, of Virginia, and Swearingen, of Ohio, in place of Kil- gore and Pennybacker. Messrs. Gholson and Claiborne, of Mississippi. The President having called an extra session of Congress before the regular congressional election in Mississippi, the governor of that State issued his proclamation for a special elec- tion of members for the called session only. The committee and the House held that the members elected — Messrs. Gholson and Claiborne — were entitled to seats during the entire 25th Congress. At the second session two contestants appeared with credentials, showing that they were elected at the regular November election in Mississippi. The House rescinded its action dur- ing the first session, and vacated the seats. 10 CONTESTED ELECTION CASES IN CONGRESS. The facts in this case are simple. The President of the United States called Congress to meet in extra session in September. The State of Mississippi wa s without representation in the House of Eepresentatives, not having held itq regular congressional election. The governor of the State issued a proclama" tion fixing a day for an election of members for the extra session. The election was held, and Messrs. Grholson and Claiborne were returned. When their names were called at the organization of the House, objection was made, but it was overruled, and the subject was referred to the Committee of Elections. Their report was as follows : IN THE HOUSE OF REPRESENTATIVES. September 25, 1837. Mr. Buchanan, from the Committee of Elections, to whom the subject had been referred, made the following report : They find a clause in the Constitution of the United States as follows: " When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such- vacancies." They also find that, by the same instrument, " the times, places, and manner of hold- ing elections for senators and representatives shall be prescribed in each State by the legislature thereof." They also find certain sections extracted from a law of the State of Missis- sippi, in the following words : AN ACT to regulate elections in this State. Approved March 2, 1833. Sec. 1. Be it enacted by the legislature of the State of Mississippi, That all elections for representatives to the legislature shall be held at the court-houses or places of holding courts in the several counties of this State, unless otherwise specially provided for by law. And the times of holding such election shall be the first Monday ana day following in November biennially. And all elections for senators in the legislature, for governor, representatives to Congress, sheriffs, coroners, and all other State and county officers directed by the Consti- tution to be biennially elected, shall be held at the same places and on the same days of the year in which they are respectively chosen, as are therein directed in the case of representa- tives to the legislature. Sec. 2. The sheriff of each county in this State shall, at least thirty days previously to the time for holding any election in his county, by advertisement, set up at the door of the court-house and three other public places in his county, notify the inhabitants of the time and place or places of such elections, and what offices are to be filled by such election ; and the sheriff, on the days of election, shall open the poll at ten o'clock in the morning and continue the same open until four o'clook in the evening of each day, and no longer. In case a va- cancy happen, and a writ of election shall be issued to the sheriff, the sheriff shall advertise the said election, and give a time as near the thirty days as the period of elections will allow, provided it be not less, in any case, than ten days. Sec. 7. The representatives to Congress from this State shall be elected by the qualified electors, at the time of choosing representatives to the legislature, once in every two years, to be computed from the first Monday in November, in the year 1833 ; and the returning officer in each county shall, within fifteen days after each election, certify under his hand and seal to the secretary of state the whole number of votes given in his county to each candidate for Congress ; and it shall be the duty of the secretary of state to sum up the whole number of votes thus returned, and declare the candidates elect, who may have the greatest number of votes, by publication in some newspaper published at or nearest to the seat of government. It shall be the duty of the governor to deliver to the persons duly elected proper credentials, under his hand and the great seal of the State, which shall entitle them to a seat in the body of which they are elected members. Sec. 10. All elections for governor, representatives to Congress, sheriffs, and other county officers, shall be held and conducted in the same manner ; provided, that the returns for every election for governor shall be made in the manner prescribed in the Constitution. The committee further find that the governor of the State of Mississippi issued writs of election in form as follows, viz : CONTESTED ELECTION CASES IN CONGRESS. 11 By Charles Lynch, governor of the State of Mississippi. — To the sheriff of county, greeting : Whereas the President of the United States has convoked Congress to meet on the first Monday of September next ; and whereas a vacancy has occurred in the representation of the State of Mississippi in the House of Representatives of the Congress of the Uniled States, by the expiration of the term of service for which Messrs. Claiborne and Gholson were elected : I do therefore issue this writ, authorizing and requiring you to hold an election in your county on the third Monday and day following in July next, for two representatives to Con- gress, to fill said vacancy, until superseded by the members to be elected at the ifext regular election on the first Monday and day following in November next ; and I do moreover enjoin you to conduct the same, in all respects, conformably to law, and make due return thereof to the secretary of state. In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of State, at the town of Jackson, this 13th day of June, 1837. It appears by a certificate of the secretary of state, that elections were held in fifty of the counties of the State of Mississippi, the result of which was, that the sitting members were elected by large majorities. From a consideration of the foregoing documents and circumstances, it would seem as if the people of Mississippi had a fair and full opportunity of express- ing themselves as to who should represent them in the twenty-fifth Congress. No objection is made from any quarter to the right of the gentlemen elect to their seats, only by and through themselves : on account of the peculiar circum- stances under which the election was held, their own delicacy and sense of pro- priety have prompted them to invite a scrutiny into their right to seats in this House. In the course of the scrutiny and investigation, the attention of the committee has been called to two points, which are supposed to comprehend the only possible objections to the retention of their seats by the sitting members. The first point is that clause of the writ issued by the governor, wherein the election is directed to be held for two representatives in Congress, to fill the vacancy until superseded by the members to be elected at the next regular election, on the first Monday and day following in November next. The com- mittee are (with one exception) of opinion that in attempting to restrict the term of service of the members to be elected at the special election ordered as before stated, till the next regular election in November next, the governor transcended his powers. The gentlemen elected are members for the whole unexpired term of the twenty-fifth Congress, or they are not members at all. The question then recurs — Did that illegal and restricting clause in the writ invalidate the election 1 The committee were almost unanimous in the opinion that inasmuch as the writ was perfect in itself without that clause, its being thSre does not in- validate the election held under it, but may fairly be rejected as surplusage: reject this as surplusage, then the writ is good, and the objection amounts to nothing. But the second objection, which would seem to be more formidable, involves the question whether, in the purview and meaning of the Constitution, such vacancy in the representation of the State had happened as would justify the governor in authorizing a special election to fill it. On this question the committee were divided. A majority of them were of opinion that a vacancy existed, and such a vacancy as was pregnant with all the evils which could arise from a vacancy happening in any other manner ; and as the words of the Con- stitution are broad enough to embrace the existing case, there is no good reason why, in giving them a practical construction, they should not be considered ap- plicable as affording a remedy in this case as well as those arising from death or resignation. It is evident that all the evils arising from vacancies by death or resignation would exist in a vacancy produced by the expiration of the term of members prior to the election of their successors ; and as the words used by the framers of the Constitution will fairly admit of the construction contended for, 12 CONTESTED ELECTION CASES IN CONGRESS. we are not at liberty to say the remedy prescribed was not intended for this case. On the contrary, the committee are of opinion the Constitution authorizes the executive power of the States respectively to order the filling of all vacan- cies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expira- tion of the term of members previous to the election of their successors. The word "happen," made use of in the Constitution, is not necessarily confined to fortuitous or unforeseen events, but is equally applicable to all events which by any means occur or come to pass, whether foreseen or not ; and as in this case confessedly the vacancy existed, it may properly be said to have happened, although the means or circumstances by which it was brought about may have been foreseen. With these views, fortified by many others which might be ad- vanced, a majority of the committee have agreed on the following resolution, and instructed their chairman to report the same to the House : Resolved, That Samuel J. Gholson and John F. H. Claiborne are duly elected members of the 25th Congress, and, as such, are entitled to their seats. The House debated the case at length. The subjoined extracts indicate it character : Mr. Pennybacker gave the reasons at some length which had operated upon his mind, as well as that of the majority of the committee, in coming to the conclusion he did. The facts of this case had been set specially by the committee in their report, and they were briefly and simply these. Messrs. Claiborne and Gholson were members of the 24th Congress. Their term of office expired with that Congress, which was on the 3d of March last. By the election laws of the State of Mississippi, it was provided that the general election for mem- bers of Congress, as well as other "public functionaries, should take place at the times and places, and in the mode therein specified. The time fixed by that law for the election of re- presentatives to the Congress of the United States was the first Monday in November bien- nially. Then the first Monday in the coming November would be the day it would have taken place, if it had not been for a state of things which was entirely unexpected. There would have been no necessity whatever for an extraordinary election to have taken place, had not the President deemed it proper to issue his proclamation convening Congress on the first Monday in September. The governor, seeing that the State of Mississippi would not be represented in the extra session of Congress, in virtue of the power he conceived conferred upon him, authorized an election to be held at an early day. The election was held in the month of July ; but the governor, in issuing his proclamation and writs of election, limited the period for which these gentlemen were to be elected to the first Monday in November ; and this question would come up as to how far he was authorized to do so. The governor had claimed this authority under that clause of the Constitution of the United States which had been referred to by the gentleman from Tennessee, which was, that ' ' when vacancies happen in the representation of any State, the executive shall issue writs of election to fill such vacancies." Mr. P. contended that this was the plain and simple construction of the Constitution, and that it must be so construed. We must take the plain and simple mean- ing of words, and not place forced constructions upon them. In the very nature of things, all language must be defective ; therefore we must endeavor to ascertain what was meant by those who made use of this language. It seemed to him, from the state of the facts given, and the literal meaning of words, that it was self-evident that such a vacancy had happened in this case as was contemplated by the Constitution. The office of representative was created by the Constitution of the United States, and was as much an office, and as much one created by the Constitution, as the office of judge of the Supreme Court, President or Vice-President of the United States, or any other office created under the Constitution. The tenure of that office was two years, and it expired on the third day of March, and conse- quently the office became vacant on the fourth day of March, and remained so until it was filled. Mr. Legare, who was entitled to the floor, contended that if Messrs. Gholson and Clai- borne were elected at all, they were elected members for the ensuing two years. This was clear, beyond all controversy. The election had been held and conducted throughout in the strictest conformity with the laws of the State of Mississippi. The writ had been issued in due time, the proclamation of the governor had been made precisely at the time it ought to have been ; and the whole election was carried on throughout accordiug to law. The whole people of the State of Mississippi had been deeply interested in the contest : they attended the polls in fall numbers, and decided the election of the gentlemen present by a very large majority. The question then was, whether this election, which was complete in all its parts, CONTESTED ELECTION CASES IN CONGRESS. 13 exact in all its forms, and decisive beyond all controversy, was to be set aside as a mere nothing, the voice of a whole State stifled, and their representatives sent back. Mr. L. then quoted largely from "Binney on the Kentucky Election," and entered into a long argument to show that the election was strictly legal, and not at variance with the spirit and letter of the Constitution. Mr. Underwood said that in reference to this particular election he could suggest a plausible reason why the present members should retain-their seats— a reason which had not as yet been urged, and to which he confessed he'shbuld be puzzled to find an objection. It was this: The House of Representatives was composed of members chosen every second year, and the Constitution said that the States should regulate the manner and time of choosing them, unless Congress should interfere. The State of Mississippi had acted in ac- cordance with this provision, and had elected her representatives to serve for the ensuing two years. The time of their election had not yet expired ; and if they had been permitted to retain their seats to this period, in that view of the case, he would confess that if the ob- jection were urged, he should be puzzled to set it aside. Under the letter of the Constitution there was nothing to prohibit it. _ Mr. Mason, of Ohio, thought that if the governor of the State of Mississippi, with all his legal knowledge, both of the State law and that of the Constitution, was of opinion that the terms of election would expire with the present session, (and that was his opinion, he having inserted a clause in the writ to that effect, ) then it would be a fair inference to sup- pose that the people of the State of Mississippi had a similar impression. Mr. Adams said the question was not as to whether or not the vacancy had been filled, but whether it had been filled for the whole term of the present Congress. The law of the State of Mississippi made it clear, that although the governor had a right to issue his writ to fill the vacancy, it was only until superseded by the general election in November. He had no right to issue his writ for an election for the whole term, as was evident from the words, "until superseded," &c, which were added to the writ. These words had been inserted in conformity with the laws of that State, and had they been omitted, the governor would vir- tually have repealed the State law. But it might be taken for granted that a large portion of the people at the polls believed they were electing members for the whole term. Mr. A. went on to show that the present members could not retain their seats, unless re-elected the 1st of November, in conformity with the law of their State : but as they were here, he wished them to remain until the expiration of the present session, and then return home, when there would be no doubt of their being again chosen by the people. The House voted, (October 3,) 118 yeas to 101 nays, that Messrs. Gholson and Claiborne were duly elected members of the 25th Congress, and entitled to their seats. This, however, was not the end of the case. A congressional elec- tion was held in Mississippi in November, and Messrs. Prentiss and Word were returned to Congress, and they presented themselves with the usual creden- tials. Their memorial was referred to the Committee of Elections. They submitted a second report as follows : IN THE HOUSE OF REPRESENTATIVES. January 12, 1838. Mr. Buchanan, from the Committee of Elections, to whom the subject had been referred, made the following report : The Committee of Elections, to whom was referred the communication of S. 8. Prentiss and Thomas J. Word, claiming seats in this house as representa- tives from the State of Mississippi, report : That, by the order of the House, they believe a special duty merely was im- posed on them, to wit, to report the facts of the case ; and therefore submit the following statement without comment or inference : At the opening of the first session of the 25th Congress, on the 4th day of September, 1837, Messrs. Gholson and Claiborne appeared, were sworn, and took their seats in the House as members from the State of Mississippi. Before they were sworn, however, and before the House proceeded to an electioh of Speaker and Clerk, Mr. Mercer offered the following resolution, viz : "Resolved, 14 CONTESTED ELECTION CASES IN CONGRESS. That sufficient evidence has not been afforded to this house that John F. H. Claiborne and Samuel J. Gholson are lawfully entitled to seats therein ;" which resolution, after some debate thereon, was laid upon the table, on motion of Mr. Bynum. On the 11th of September it was voted by the House that the action of the several standing committees, on all matters not embraced in the message of the President of the United States to the two houses of Congress, communicated on the second day of that session, be suspended until the commencement of the annual session in December. On the 13th of September, on motion of Mr. Gholson, the foregoing order was suspended, so far as it relates to the action of the Committee of Elections. On the 18th of September, in the House, on motion of Mr. Gholson, it was Resolved, That the Committee of Elections be instructed to report upon the certificate of election of Massrs. Claiborne and Gholson, the members elect from Mississippi, whether they are members of the 25th Congress or not ; and that said committee take into their con- sideration the proclamation of his excellency Charles Lynch, governor of said State, and the writ of election issued in accordance with said proclamation, on the 13th day of June, 1837 ; and also the act of the legislature of Mississippi, entitled 'An act to regulate elections,' ap- proved March 2, 1833. The only evidence or documents exhibited to the committee under the above resolution consisted of the law of Mississippi ; the writ of election issued by the governor,.requiring an election to be held in July last, for members of Con- gress for a limited term ; (all of which are set forth in the report of the com- mittee of last session, being document No. 2 of that session, to which the com- mittee refer as part of their report ;) and a certified statement of the votes given at that election, marked A. Upon this evidence Messrs. Claiborne and Gholson, by a written argument submitted to the committee, and subsequently furnished to the members of the House, claimed to hold their seats in this house during the 25th Congress ; and a majority of the committee thereupon made a report to the House, which con- cluded with the following resolution, viz : Resolved, That Samuel J. Gholson and John F. II. Claiborne are duly elected members of the 25th Congress, and, as such, are entitled to their seats. Which resolution, on the 3d day of October, was adopted by the House. The proclamation of the secretary of the State of Mississippi, declaring the number of votes at the July electiona, and that Messrs. Claiborne and Gholson were elected to " the called session of Congress," marked B ; and the credentials, as required by the law of Mississippi, under the hand of the governor and the great seal of the State, declaring that Messrs. Gholson and Claiborne were duly elected to be' members of Congress until the regular election should be had under the law of the State, in November next thereafter, although issued and in existence, were not presented to the committee at the last session, nor relied upon by Messrs. Gholson and Claiborne as any part of their evidence ; nor con- sidered by the committee in reaching the result to which they came in the reso- lution presented to the House. Inquiries, however, were made by a member or members in relation thereto. Answers were given ; but by whom given, and of what import, are not now remembered with sufficient distinctness and unanimity to be incorporated with this report. The committee would add, however, that, differing as they did, essentially, in their views of the case, the production of the papers in question would not have changed the opinions which they formed on its merits. The committee further report, that an election was held in Mississippi according to the forms of law, on the first Monday and day following in No- vember last, which resulted as per statement marked C. They further report the credentials of Messrs. Prentiss and Word, as contained in document marked D. CONTESTED ELECTION CASES IN CONGRESS. 15 The committee report document marked "E, as the constitution of Mississippi. The " statement marked C," shows that the contestants received several thousand majority in the November election. Their credentials were in the usual form. The facts in the case were correctly stated by Mr. Martin, in the House debate. They are as follows : During the past summer, it was considered necessary by the President of the United States that the twenty-fifth Congress should convene its first session on the first Monday in September last, and for that purpose, by his proclamation, ordered Congress to meet upon that day. By the laws of Mississippi, the time fixed for the election of her members to the present Congress was the first Monday and day following in November last. The governor of that State, by his proclamation, ordered an election to be held in July, for the election of members to serve until superseded by those to be elected in November, the time fixed by law for holding the regular election. At the election in July, the sitting members were candi- dates, and were opposed by one of the applicants (Mr. Prentiss) and another gentleman, the result of which was their return by a large majority of all the votes cast. At the meeting of the session thus called, the sitting members presented themselves, and having participated in the election of Speaker, as is usual in such cases by all the members returned, were duly sworn and took their seats. Some question being made by the honorable gentleman from Virginia, (Mr. Mercer,) as to their right to seats as members, one of the sitting members (Mr. Gholson) called upon the House to institute an inquiry upon the subject, alleging, as his reason for doing so, that he wished the question settled in time for him to return to Mis- sissippi, if he should be adjudged not entitled, before the time for holding the regular election in November, that the people might be informed, and hold another election. The House complied with that request, by the adoption of the resolution offered by tjiat gentleman, referring the inquiry to the Committee of Elections, who, after examination, made their report, accompanied by a resolution declaring the sitting members duly elected members of the twenty-fitth Congress ; which resolution, so declaring, was, after full examination and discussion, adopted by this House. In addition to the legal presumption that the adoption of this resolution was known to the people of Mississippi, that fact was made known to them through the newspapers, and other channels of communication, by the sitting members, so that before the election in No- vember, the electors of that State were fully informed of the decision of the House, and of the determination of the sitting members to rely upon that decision. These facts are admitted on all sides of the House. The applicants alone were candidates at the November election, ob- taining a majority of the votes cast for Congress, but less than half of the whole vote polled at that election ; and that, too, after a general canvass through the counties of the State by the applicants, as stated by Mr. Prentiss. These, I believe, sir, are most of the important facts and circumstances upon which this application is founded. There are certainly no others that I have heard which tend in the slightest degree to strengthen the claims of the appli- eants. Mr. Gholson also stated that — His colleague and himself were not before the people at the November election, and they distinctly stated to the people, in a printed circular addressed to them, that they were not candidates upon that occasion. That cifcularwas published, and it was announced, at least in all the democratic papers of the State, that they were not candidates. Mr. G. also wrote at least a hundred letters to his friends in different parts of the State, declaring that, in con- sequence of that decision, he was not a candidate. Mr. G. further stated that, in twenty counties, where no votes were given for himself and his colleague in the November election, they received about five thousand votes at that of July ; thus showing, conclusively, that there was no general turn-out of the people at the November election, induced, as he firmly believed, not to vote by the decision of the House. That was the main fact he wished to state. The House, by its vote, had said the elec- tion of July was void. Mr. G. was as well satisfied with that decision as any one else, but he wished them to vote, at least, with a knowledge of the facts. In addition, Mr. G. had good grounds to know that the election in many other counties was partial, from the fact of his colleague and himself not being before the people, and there- fore, by no kind of calculation, was the strength of parties tested in November. The people had been misled by the decision of the House. After a somewhat lengthy debate, the House, (on January 31,) passed the following resolution — yeas 119, nays 112 : Resolved, That the resolution of this House of the 3d of October last, declaring that Sam- uel J. Gholson and John F. H. Claiborne were duly elected members of the 25th Con- gress, be rescinded, and r 'iat Messrs. Gholson and Claiborne are not duly elected members of the 25th Congress. 6 CONTESTED ELECTION CASES IN CONGRESS. On the 3d of February the House voted, 118 to 116, that Messrs. Prentiss and Word, the contestants, were not entitled to seats in the House, and the governor of Mississippi was notified that the seats were vacant. Note. — The case will be found in proceedings and debates as follows : Vol. 5, Congress- ional Globe, pages 80, 8-i, 85, 86, 98 ; Appendix, pages 85, 91, 223, 130 ; Vol. 6, pages od, 104, 119, 145, 146, 148, 150, 155, 158, and Appendix, pages 68, 93, 124, 127. TWENTY-FIFTH CONGRESS, THIRD SESSION. Doty vs. Jones, of Wisconsin Territory. The sitting member was elected delegate in the fall of 1836, and claimed the right to rep resent the Territory in Congress till the 4th of March, 1839, upon the ground that his term did not commence till the,4th of March, 1837, although he took his seat in 1836. In 1838 Mr. Jones was elected delegate to represent the Territory. The committee held that Mr. Doty was entitled to the seat, and the House sustained the decision. The report in this case is as follows: That, by the order of the House as submitted to them, the only question which presented itself was, whether or not the Territory was entitled to a rep- resentation by a delegate ? In deciding this question the committee could have no difficulty, and might have absolved itself from further trouble by reporting an affirmative resolution. But believing the intention of the House, in making the order, to have been that the committee should examine the whole ground, and not only report as to the right of representation, but also designate the per- son who was the rightful representative, they proceeded to perform that duty, and report the following as the result of their investigation : By the act of 20th of April, 1836, which act was to take effect the 4th of July following, the Ter- ritory of Wisconsin was organized and the territorial government established ; and by the 14th section of that act it was declared "that a delegate to the House of Representatives of the United States, to serve for the term of two years, may be elected by the voters qualified to elect members of the legislative assembly, who shall be entitled to the same rights and privileges as have been granted to the delegates of the several Territories of the United States to the said House of Representatives ; the first election shall be held at such time and place or places, and be conducted in the same manner, as the governor shall ap point and direct; the person having the greatest number of votes shall be de- clared by the governor to be duly elected, and a certificate thereof shall be given to the person so elected." By virtue and in pursuane'e of the said act of Con- gress, Henry Dodge, the governor of said Territory, (duly appointed,) issued a proclamation, dated the 9th of September, 1836, wherein, among other things, he orders and directs that the first election for members of the House of Representatives and council shall be held on the second Monday of October then next ensuing ; and did also " direct and appoint that, at the same time and place specified for electing the members of said legislature, there shall be elected, by the voters of the several counties, one delegate to the Congress of the United States for the term of two years, agreeable to the 14th section of the act of Congress." In pursuance of said proclamation an election for a del- egate in Congress was held, and George W. Jones was duly elected, as appears by the certificate of the governor, herewith reported, and marked A. It appears by the journal of the House of Representatives, that on the 5th day of December, 1836, Mr. Jones appeared, was qualified, and took his seat in the House as a delegate from Wisconsin Territory. From further evidence before the committee, it appears an election for a del- egate to Congress for the Territory of Wisconsin was held on the 10th day f September, 1838, in conformity with the act of Congress an d the laws of t.lio CONTESTED ELECTION CASES IN CONGRESS. 17 Territory, which resulted in the election of James Duane Doty, as appears by the certificate of the governor, herewith reported, and marked B. No doubt exists as to the due election of Mr. Doty to serve as a delegate for ■a term of two years ; but the question presented to the committee is this : When does his term of service commence 1 Oh the one side, it is contended that it commences with his election, or at least with the date of the governor's certifi- cate of his election ; on the other side, it is contended that the term for which Mr. Jones was eledted in the fall of 1836 does not expire until the 4th of March, 1839; and in support of this view of the case, reference is made to the act of Congress of 3d March, 1817, the first and only section of which now in force is in the words following : " 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 13th July, 1787, 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 two years, for which members of the House of Representatives of the United States are elected." Reference is also made to the act of 16th February, 1819, in which it is provided that the citi- zens of Michigan Territory be, and are thereby, authorized to elect one delegate to the Congress of the United States ; that the person who shall receive the greatest number of votes at such election shall be furnished by the governor of said Territory with a certificate, setting forth that he is duly elected the dele- gate for the term of two years from the date of said certificate. Under the act of 1819 Mr. Jones was elected a delegate for Michigan Terri- tory, in October, 1835, and took his seat at the ensuing session, in December, 1835. By the act of June 15, 1836, the constitution and State government which the people of Michigan had formed for themselves was accepted, ratified, and confirmed, and she was declared to be one of the United States of America, and was admitted into the Union according to the boundaries therein prescribed, on condition that the boundaries so prescribed and established should receive the assent of a convention of delegates elected by the people of said State, for the sole purpose of giving the assent required ; and as soon as said assent was given, the President of the United States was to announce the same by procla- mation; and thereupon, and without any further proceeding on the part of Con- gress, the admission of said State into the Union shall be considered as com- plete. A convention of delegates, elected for the purpose expressed in the said act, was held, and gave their assent to the boundaries therein described, on the 15th of December, 1836. The committee are of opinion that although in October, 1835, Mr. Jones was elected a delegate for Michigan Territory, to serve two years, yet, in the nature of the case, his term of service could not survive the existence of the corpora- tion he was elected to serve. If the corporation of the Territory of Michigan was dissolved before the expiration of the two years for which he was elected, his office, as well as that of all other territorial officers, expired with it. It would seem to the committee that the Territory of Michigan, as a political cor- poration, was no more after the passage of the act of 15th June, 1836, organi- zing and erecting Michigan into a State; for, although there was a condition in that act, on compliance with which only she was to be admitted into the Union, yet that did not derogate from her character as a State, or prevent her from exercising all the powers of a State. Her being a State, and, as such, being admitted into the Union, are two different things. She might be a State, and was a State, exercising all the powers of a State under her own constitution, before she was admitted into the Union, and before the election in Wisconsin in October, 1836. At the time Mr. Jones was elected a delegate for Wisconsin Territory, in October, 1836, he was not a delegate for Michigan Territory, for the plain reason that no such Territory was in existence. In December, 1836, FT Mia TW. S7 9 18 CONTESTED ELECTION CASES IN CONGRESS. lie took his seat, and was sworn, as a delegate from Wisconsin, since which he- has served two years — the full period allowed him by law. But it is alleged by Mr. Jones that under the act of 1817 a delegate must be elected only for one Congress, and not for parts of two congressional terms ; that his term as a delegate from Wisconsin did not commence until the 4th of March, 1837, and consequently will not expire until the 4th of March, 1839. In this the com- mittee do not concur with him, because it would have been leaving Wisconsin unrepresented for one whole session, contrary to the intention of the people as- expressed in electing a delegate in October, 1836, in conformity with the privi- lege granted them for that purpose by the act of Congress of April, 1836 ; and because it does not follow, from the act of 1817, that a delegate from a Territory must be elected for and serve the same two years for which members from 'the States are elected ; but (although this construction is not given with entire con- fidence in its correctness) the committee would construe the law to mean that delegates should be elected for the same length of time as representatives from the States. This construction is fortified by the fact, that previous to that law delegates were elected annually. Such construction will not clash with any provision of the Constitution, as delegates are so far the mere creatures of law that their term of service may be long or short, and may commence and termi- nate at such periods as Congress, in their wisdom, may direct. But if in this- construction of the act of 1817 the committee should be in error, still their opin- ion would induce them to give Mr. Doty the seat, because, as the committee believe, that act has nothing to do with the present contest. It is nothing but an act of Congress, and, of course, subject to the control of subsequent legisla- tion. It was controlled (if Mr. Jones's construction of it be right) by the act of 1819, which directed that the delegate of Michigan should serve two years from the date of the certificate of the governor, without regard to the commencement of his term, whether at the beginning or in the middle of a term of Congress. So would it be controlled by the act of 20th April, 1836, organizing the Terri- tory of Wisconsin, which gives the power to its citizens to elect a delegate to ' represent them in Congress, without fixing any time for the commencement of his services ; consequently, according to common construction in all such cases, where an obligation is imposed, or a duty to be performed, and no time fixed for discharging the obligation or performing the duty, it is to be done forthwith - T and therefore the inference is, that Mr. Jones's duties as a delegate from Wis- consin commenced with his "election in October, 1836, and terminated with Mr. Doty's election in 1838. The act of April, 1836, organizing the Territory, needs the aid of no other; it is perfect iu itself, and would seem to be independ- ent of all other acts. On the whole, after all the consideration which the committee have been able to bestow on the subject, they have no hesitation in saying that considerable difficulty exists in reconciling the provisions of the different acts which may be supposed to have a bearing on the matter; yet they feel a great degree of con- fidence in two positions : first, that it was the intention of Congress, by the act of April, 1836, organizing the Territory, to afford the people of the Territory the privilege of an immediate representation in Congress by a delegate to be elected by themselves; and, second, that the people of the Territory acted with a view to the enjoyment of that privilege in electing a delegate in October, 1836. The conclusion would then seem to be, that Mr. Jones has served out the term for which he was elected in October, 1836, and that Mr. Doty is entitled to the seat under his election in 1838. The committee submit the following resolution : Resolved, That James Duane Doty is entitled to a seat in this house as a delegate from Wisconsin Territory, and that George W. Jones is not so entitled. After a very brief discussion of the case, the House, by yeas 165, nays 25, agreed to the report of the committee. CONTESTED ELECTION CASES IN CONGRESS 19 TWENTY-SIXTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Campbell, South Carolina. Mr. Brown, Tennessee. Kives, Virginia. Fishek, North Carolina. Fillmore, New York. Smith, Connecticut. Medill, Ohio. Botts, Virginia. Orabbe, Alabama. THE NEW JERSEY CASE. In this well-known case the House, before it was organized, refused to admit claimants to seats who brought the governor's certificate of election. After organization the rival dele- gation was admitted to seats during the contest. Held by the committee, that hearsay decla- rations of the voter should be rejected. That ■prima facie it is to be taken that none but qualified votes have been received, and it is not sufficient that a doubt of their legality exists. Where it was alleged that the voter had not been naturalized, held that contestant must prove the allegation, even where the fact that the voter was alien-born was admitted. The disqualification of an officer, to affect the legality of an election, must be co-existent with the election. The consideration of this case occupied a large portion of the first session of the twenty-sixth Congress. The organization of the House was delayed by it for two weeks. Two delegations presented themselves from five congressional districts in New Jersey — there being no controversy respecting one of the members. Messrs. Stratton, Maxwell, Halsted, Yorke, and Aycrigg offered the usual evidence of election — the certificate of the governor . of New Jersey. Messrs. Kille, Kyall, Dickerson, Cooper, and Vroom presented themselves with the certificate of the secretary of state of New Jersey that they had received a majority of the votes cast in their respective districts. After a debate covering nearly two weeks the House (still unorganized) refused to permit either set of delegates to be recognized by the clerk as members. On the 13th of January the House, on motion of Mr. Campbell, of South Carolina, chairman of the Committee of Elections, agreed to the subjoined resolutions : Resolved, That all papers or other testimony in possession of or within the control of this House, in relation to the late election in New Jersey for representatives in the twenty-sixth Congress of the United States, be referred to the Committee of Elections, with instructions to inquire and report who are entitled to occupy, as members of this house, the five contested seats from that State. Resolved, That a copy of this resolution be served on John B. Aycrigg, John P. B. Max- well, William Halsted, Charles C. Stratton, Thomas Jones Yorke, Peter D. Vroom, Philemon Dickerson, William R. Cooper, Daniel B. Ryall, and Joseph Kille, all citizens of New Jer- sey, claiming to be representatives from that State in this Congress, and that the service be made upon each gentleman personally, or by leaving a copy at his usual residence ; and that said committee be authorized to send for persons and papers. On the 28th of February, (1840,) the House instructed the committee " to report forthwith which five of the ten individuals claiming seats from the State of New Jersey received the greatest number of lawful votes from the whole State for representatives in the Congress of the United States at the election of 1838, in said State, with all the evidence of that fact in their possession : Pro- vided, That nothing herein contained shall be so construed as to prevent or delay the action of said committee in taking testimony and deciding the said case upon the merits of the election." 20 CONTESTED ELECTION CASES IN CONGRESS. The first report of the committee was submitted to the House March 5, 1840 After discussing the resolution of the House instructing the committee in refer- ence to this case at considerable length, the committee proceed as follows : With this explanation, which they have considered due to the House and to themselves, the committee will now proceed to examine the allegations against the validity of certain township elections, as far as such an examination can be made upon the testimony in their possession. Upon this branch of the case the claimants holding the governor's commis- sions claim — 1st. That, apart from, their not being received. in time to be counted according to law, the votes of Millville should be set aside for the fraudulent and illegal conduct of the officers of election, in proclaiming their intention to receive, the votes of aliens, and in receiving a large number of such knowingly, and in violation of the laws of the State. Without inquiring into the effect of these charges, if they were substantiated by competent and satisfactory testimony, it is sufficient to state that they are unsupported by any testimony in the possession of the committee. 2d. They allege that, apart from all defects and irregularities in the return, the votes of South Amboy should be set aside, because one of the officers of elec- tion duly chosen was unlawfully prevented from acting, and another substituted in his place, who acted and, signed the list, 8fc; and because the board, thus unlawfully constituted, received a large number of alien votes contrary to law. In support of these allegations, numerous depositions have been produced, but without expressing an opinion, whether, if satisfactorily proved, they would constitute sufficient evidence of fraud to set aside the votes of this township, it is only necessary to state that the evidence was taken ex parte, without sufficient notice, and has been rejected by the committee as incompetent to be considered in this case. 3d. It is further claimed, that the poll held at Saddle River, in Bergen county, should be set aside : because at least eight votes given for them were fraudulently abstracted from the ballot-box, and as many for their opponents fraudulently substituted : because, in making out the list of votes in said town- ship at least eight votes less than were given for them were counted in their favor, and at least as many were counted for their opponents, more than they received ; and because the list of votes in said township bears upon its face evidence of mistake or fraud. In support of these charges, the depositions of numerous voters have been submitted ; but, being taken ex parte, and without sufficient notice, they have been rejected by the committee as incompetent testimony. It is also claimed that the polls held at the townships of Newton, Harderton, and Vernon, in Sussex county, should be set aside, for reasons that will more fully appear by reference to the document marked A, accompanying this report. But there is no competent evidence before the committee in support of these allegations. Having thus disposed, for the present, of the various objections to the validity of the elections held at the several townships claimed to be set aside, the com- mittee will now proceed to ascertain " which five of the ten claimants received the greatest number of lawful votes" at the late congressional election in New Jersey, according to the several returns purporting upon their face to be made by officers duly authorized to act. The committee take as the basis of their calculation the statement upon which the governor and privy council of New Jersey made their decision, and which is found in the minutes of the proceedings of the governor and privy council. From this statement it appears that the total of votes for each of the ten claimants was as follows : For Philemon Dickerson, 27,951 ; Peter D. CONTESTED ELECTION CASES IN CONGRESS. 21 Vroom, 27,990 ; Danial B. Ryall, 27,939 ; William R. Cooper, 27,954 ; Joseph Kille, 27,924. For John B. Aycrigg, 28,150; John B. P. Maxwell, 28,239; William Halsted, 28,192; Charles C. Stratton, 2S,252; Thomas Jones Yorke, 28,177. For Philemon Dickinson, 3. For John B. Acrigg, 1. [The report then goes on to declare that this statement does not include the votes received at the townships of Millville and South Amboy. The vote of the two sets of claimants in these t6wnships the report alleges was as follows : For Messrs. Dickerson, 502 ; Vroom, 502 ; Ryall, 502 ; Cooper, 501 ; Kille, 502. For Messrs. Aycrigg, 144 ; Maxwell, 144 ; Halsted, 145 ; Stratton, 144 ; Yorke, 144. The report closes as follows :] Thus it appears that prima facie upon the evidence in the possession of the committee, Philemon Dickerson, Peter D. Vroom, Daniel B. Ryall, William R. Cooper, and Joseph Kille, are the "Jive of the ten individuals claiming seats from the State of New Jersey" who "received the greatest number of lawful votes from the whole State for representatives in the Congress of the United States at the election of 1838 in said State." The minority report sets out with the subjoined statement of the case : " The commissioned members claimed the vacant seats under and by virtue of the commissions issued by the executive of New Jersey ; and insisted that if the committee should determine to go back of those commissions, and to inquire into the merits of the election, they had a majority of the legal votes polled, and also a majority of the votes lawfully certified to the governor. ".The non-commissioned claimants admitted the authenticity of the commis- sions, but alleged that they received the greatest number of votes polled ; that the governor and privy council unlawfully refused to count the votes from the townships of Millville and South Amboy, for the reason that they were not included in the certificates of the clerk of the counties of Middlesex and Cum- berland ; and that, had the votes of these townships been counted, the result would have been a majority in their favor. That the commissions being thus erroneously and unlawfully issued, were void. • " The commissioned members alleged numerous frauds and illegalities in the election ; some of which they insisted ought to set aside the polls ; and others invalidate the votes ; such as excluding duly elected persons from officiating as judges of election ; the determination of electing officers to receive alien votes, and, in fact, receiving such votes, knowing that they were illegal ; disregarding all challenges of illegal votes, and permitting persons, attempting to challenge, to be driven away .by threats and violence ; and fraudulently abstracting votes given for them, and substituting others for their opponents, and rejecting legal votes offered for them, and admitting illegal votes on the other side ; and they also submitted to the committee a list showing about 230 illegal votes given and counted for the non-commissioned claimants, and three or four legal votes offered for the commissioned members and rejected. They also alleged that they expected to prove an extensive conspiracy among the friends of the oppo- site set of claimants, to perpetrate these frauds and obtain these illegal votes ; that they had taken some evidence to establish said fact, but had been pre- vented from completing the proofs, because there was no law regulating the mode in which the same should be obtained, or giving compulsory process to compel the attendance of witnesses ; and also because the friends of the non- commissioned claimants had persuaded witnesses not to attend for examination, and had prevented officers from taking depositions by intimidation and threats of public prosecution for so doing ; and they asked further time, and the au- thority and direction of the committee, to enable them to compel the taking of their testimony. 22 CONTESTED ELECTION CASES IN CONGRESS. # "The non-commissioned claimants denied allknowledge of the alleged frauds and illegal votes, but stated that they had heard of some alien votes having been given at Millville, and admitted the fact ; and also presumed that alien votes were given in other parts of the State ; but believed that there were as many on the one side as on the other." [The minority of the committee objected strenuously to the making of a report while the parties concerned were still taking testimony, and the committee had not completed its investigation. They say :] "A majority of the committee, paying no regard to absolute instructions of the House, to report the lawful votes, decided that the introduction of the word ' lawful' did not affect the original meaning of the proposition, and that the resistance it had encountered in the House from four of their own members had no object in it but a perverse and obstinate determination on their part to oppose a perfectly harmless amendment ; and they proceeded at once, without deigning to go into an examination of the testimony before them, to make a report on the whole , number of votes given at the polls, lawful and unlawful, the men and the boys, the aliens and the citizens, without discrimination, and without stopping to inquire whether the elections were held in the manner pre- scribed by law, when they knew that allegations had been made and partially established; that all these matters would be proven, and many of them, perhaps enough, already proven by the testimony then before them to change the result, at least in part, if they would have opened and examined it. But this, the committee conclude, and labor throughout their report to prove, they were not authorized to do, because they were directed to report forthwith on the lawful votes, and that the effect of that omnipotent and pungent word 'forthwith' neutralized and nullified the word lawful, and rendered it perfectly nugatory ; and that being required to report forthwith the lawful votes, they were of neces- sity compelled to regard all unlawful votes as lawful votes, and that that was what the House intended when, by a vote of 97 to 96, they determined to insert it." On the 16th of March, by a vote of 111 to 80, the House declared that Messrs. Dickerson, Vroom, Kille, Ryall, and Cooper, were entitled to seats from New Jersey as members of the twenty-sixth Congress, but that this decision shall not affect the rights of the other claimants to continue the investigation or contest. On July 8, 1S40, the Committee of Elections submitted a final report, which is as follows : The Committee of Elections, to whom was referred the case of the' contested election from the State of New Jersey, report : That at the opening of the House of Representatives of the present Congress, Joseph F. Randolph, John B. Aycrigg, John P. B. Maxwell, William Halsted, Charles C. Stratton, and Thomas Jones Yorke, presented themselves with the usual credentials from the executive authority of New Jersey, and claimed to be the lawful representatives of the people of that State. To the right of Joseph F, Randolph there was no opposition, and he was admitted to a seat. But, simultaneously with the appearance of Messrs. Ay- crigg, Maxwell, Halsted, Stratton, and Yorke, five other gentlemen, to wit, Peter D. Vroom, Philemon Dickerson, Joseph Kille, William R. Cooper, and Daniel B. Ryall, presented themselves, and offered evidence to show that they had received the greatest number of votes from the whole State, and were entitled to the returns. CONTESTED ELECTION CASES IN CONGRESS. 23 The House of Representatives refused to admit either party of these ten claimants in its organization, and on the 13th of January adopted the following resolutions : On motion of Mr. Campbell, of South Carolina, ' Resolved, That all papers, or other testimony, in possession of or within the control of this House, in relation to the late election in New Jersey for representatives in the 26th Congress of theflnited States, be referred to the Committee of Elections, with instructions to inquire and report who are entitled to occupy, as members of this House, the fivocontested seats from that State ; and that the committee have power to send for persons and papers. Resolved, That a copy of this resolution be served on John B. Aycrigg, John P. B. Max- well, William Halsted, Charles C. Stratton, Thomas Jones Yorke, Peter D. Vroom, Phile- mon Dickerson, William E. Cooper, Daniel B. Ryall, and Joseph Kille, all citizens of New Jersey, claiming to be representatives from that State. On the next day, the 14th January, the committee assembled; and for its proceedings from that time tor the 3d of March, reference is made to the printed journal, in report No. 506 of the present session. By that report it appears that the credentials held by J. B. Aycrigg, J. P. B. Maxwell, William Halsted, Charles C. Stratton, and Thomas Jones Yorke, were based on an imperfect canvass, not embracing the whole number of votes received in the State, but that the votes of two townships, to wit, Millville and South Amboy, had not been included in such canvass. By the adoption of that report, the House made substantially a correction of the returns, and awarded the seats to Peter D. Vroom, Philemon Dickerson, Daniel B. Ryall, Joseph Kille, and William R. Cooper, with a proviso that nothing contained in the resolution should be so construed as to prevent the investigation into the election from being continued in the manner heretofore authorized by the committee, on the application of the claimantg. Thug it is evident that, notwithstanding the admission of the five claimants last named to seats, the proceedings of the committee, and of the parties, in regard to the ultimate merits of the election, were not affected ; and on the 16th day of April the parties reappeared before the committee with a mass of testi- mony, the result of a canvass extending over the whole State. This testimony, taken under, the agreement of the parties (see Exhibit N) and the law, relates to nearly six hundred distinct cases of votes polled for one party or the other, alleged to be unlawful, and of votes alleged to have been improperly refused at the polls. Besides these cases, there were also involved the question of legality of the poll holden at South Amboy, and the allegation of fraudulent practices by the officers of the election at Saddle river. In the hope that the grounds of the controversy might be more strictly defined and narrowed, and that the testimony scattered through so 'many sepa- rate depositions bearing on the same points, might be so arranged and collected as to facilitate the labors of the committee, while it should insure the ends of justice, the'testimony in the possession of the committee was, on the 16th day of April, by the mutual agreement of the parties, delivered into their hands, and the committee continued the investigation of other cases pending before them. Although, from this arrangement, much greater delay ensued than the com- mittee anticipated, the subsequent investigation proved that, without the assist- ance of the parties, the difficulties of the investigation would have been almost insurmountable ; testimony in relation to the same vote being often found to have been taken not only froift many different witnesses, but at various and distant times and places, to which no clue would else have been furnished. Nevertheless, impatient of delay, the committee passed resolutions calling on the parties on the 13th and 20th May, and, finally, on the 2d June. The committee having previously, under the power granted by the House, 24 CONTESTED ELECTION CASES IN CONGRESS. ordered the papers to be printed, the final investigation was commenced on the 3d June, with a volume of evidence of nearly 700 printed pages. From that day until this, the journal of the committee, herewith reported, will evince the magnitude of the task to which they have been devoted. The most minute and tedious course has been adopted. The case of every individual vote has been treated as a distinct controversy. The testimony re- lating to it having been first read, arguments upon the facts or law, oipboth, were heard from parties, frequently followed by elaborate discussion in the com- mittee itself. The question was then put upon a formal resolution, devised with reference to the prima facie legality of the proceeding at the polls and the burden of proof; which resolution, as applied to each case, with the yeas and nays thereupon, will be found in the journal. As applied to alleged unlawful votes, it presents two affirmative propositions : 1st, that the vote in question was not a lawful vote ; and, 2d, that it be deducted from the votes of one or the other of the parties. The first proposition involved the inquiry whether the vote was actually cast at the polls ; and, for the ascertainment of this point, the committee necessarily resorted to parol proof, as the best evidence which the nature of the case would admit of; the laws of New Jersey not requiring the poll-lists to be preserved as a record of the actual voters. Mere hearsay decla- rations of the alleged voter, as to the fact of his having voted, have been uni- formly rejected. The fact of the voting being ascertained, the alleged disqualification, as a question of law and fact, was considered. With reference to their disquali- fication, the impeached voters may be divided into divers classes, to wit r aliens, non-residents of the county, non-residents, minors, men of color, per- sons non compos mentis, and persons not possessed of the requisite property qualification. In examining the various alleged grounds of . disqualification, the princi- pal differences of opinion in the committee arose from the constantly vary- ing facts of each case, (which operated variously upon the minds of different members,) and upon the sufficiency of the evidence to establish the result. The most serious of these differences of opinion arose in the considera- tion of the first-named class of impeached voters, to wit, aliens. A minor- ity of the committee 'were of opinion that it was sufficient for the party ob- jecting to the vote to prove that the voter was alien born; and that the burden of proof was thereby thrown upon the party for whom the vote had been rendered at the poll, to prove that the voter had been naturalized. And it was urged, with great earnestness, that to adopt any other rule of evi- dence would be to depart from the plainest principles of law and reason — to impose upon the party objecting to a vote the proof of a negative ; and a negative, too, which nothing short of searching of every court qf record hav- ing common-law jurisdiction, a clerk, and seal, in the Union, could possi- bly establish. Without minutely criticising the argument, it is deemed proper to in- quire to what practical consequences the rule would lead, if it be fully ad- mitted; for the proposition is to be taken, not as a mere abstract annuncia- tion of the order of proof, but as practically applicable to the decision of cases of contested election in the House of Representatives. The committee, as the organ of the House, have a positive affirmative proposition to adjudge and declare, before a sitting member can be dis- ' placed, or a single vote received for him at the polls can be ejected from the ballot-box. Before a member is admitted to a seat in the House, some- thing like the judgment of a court of competent jurisdiction has been pro- nounced upon the right of each voter whose vote has been received ; and in order to overturn this judgment, it must be ascertained affirmatively that the judgment was erroneous. Prima facie, it is to be taken that none CONTESTED ELECTION CASES IN CONGRESS. 25 but the votes of qualified voters have been received by officers whose sworn duty it was to reject all others. This principle will be found to have been solemnly and unanimously declared by the committee as a basis of future action soon after entering upon the investigation of this case. (See report No. 506, page 46.) It is not sufficient that there should exist a doubt as to whether the vote is lawful or not ; but conviction of its illegality should be reached, to the exclusion of all reasonable doubt, before the committee are authorized to deduct it from the party for whom it was received at the polls. Will the mere naked fact that a voter was alien born, in the absence of all other proof, produce such conviction on any candid mind ? Is it not already answered, or, rather, is not even a presumption from that fact alone precluded, by the judgment at the polls '( All foreigners from birth are not disqualified from voting, but only a certain class. Are we to presume the voter, whose vote has been received by the officers of the election, to be of the disqualified or the qualified class 1 The question is answered by the unanimous resolution of the committee already referred to, as well as by the reason and analogy of the case. The committee cannot believe that the House of Representatives would eject a member from his seat upon the mere proof that every man of his constituents was alien born. It is not apprehended that, after an election has been regularly held, the House would even consider an investigation necessary upon a petition which alleged no other fact. The history and statistics of the country preclude the principle insist- ed on by the minority of the committee as a rule of evidence applicable to cases of contested election. Our institutions acknowledge no difference between the native-born and naturalized citizen in the enjoyment of the elective franchise. While the spirit of our laws continues to receive, with such enlarged and gracious beneficence, the stranger and exile from every clime ; while the Genius of Liberty stands, with wide-spread arms, attend- ing the term of their short and easy novitiate, to absolve them from all alien bonds, and to administer the sacred rights of their political regenera- tion ; surely the fact of foreign birth alone cannot suffice to annul a right which has been affirmed by a tribunal having the amplest power and means to test it, and exercising that power under the requirements of law and the solemn sanctions of an oath. But it may be asked, Does not the presumption originally arising from the fact of foreign birth acquire additional strength; and may it not over- turn the decision at the polls, when neither the voter, nor the party claim- ing the benefit of his vote before the committee, adduces here any evidence of his naturalization ? If the voter refuses to testify to his own disquali' fication, (as he legally may,) how can the party impeaching his vote pro- ceed further in the proof of his allegation? Shall he be put to the proof of a negative ? Is not the voter a party to the proceeding ; and is not his neglect to rebut the proof of his birth by the evidence of his naturaliza- tion conclusive against him ] Undoubtedly, if the voter be, to all intents and purposes, a party to this proceeding, claiming to exercise a right here, such would be the conclu- sion ; and, unless he should make out his right affirmatively, he must fail to establish it. So it was at the election; and so it would be here, if the committee were holding a» poll. But such is not the vocation of the com- mittee or the House. If it were, the mere reference pf the petition, the mere creation of a controversy, would annul all that has been done at the election. Then, indeed, things would be taken up and treated de novo ; voters, who had once maintained their right, and exercised it at the polls, 26 CONTESTED ELECTION CASES IN CONGRESS. would be required to come forward and submit themselves to another challenge, and a new affirmation of their franchise. Again : if the voter is, to all intents and purposes, a party to the pro- ceeding before the House or its committee, how is it that he is admitted to testify as a witness? Why are not all his declarations or admissions, wheresoever and howsoever made, in relation to the subject-matter of the controversy, the best evidence when proved by a competent witness. The distinction between the controversy at the polls and that before the committee is manifest. At the polls, the voter is a party. When the polls are closed, and an election is made, the right of the party elected is complete. He is entitled to the returns ; and when he is admitted to his seat, there is no known principle by which he can be ejected, except upon the affirmative proof of a defect in his title. Whoever seeks to oust him, must accomplish it by proving a case. The difficulties in his path can form no possible reason why the committee should meet him half way. The rule of reason requires that he should fully make out his case, even though it involve the proof of a negative ; and such is also the rule of Parliament in analogous cases. (See Sd Douglas, 219.) i In Rogers's Law and Practice of Election Committees, page 116, it is said : " So in cases of petitions against candidates on the ground of want of sufficient qualification : although a negative is to be proved, it is the usage of Parliament that the party attacking the qualification is bound to disprove it. " It may be added, that this rule has been applied by the committee, without controversy, to every other species of alleged disqualification. In the cases of aliens alone was a different rule contended for. Adhering to the rule, the committee have uniformly required something more than the mere affirmative . proof of foreign birth; the disqualification not being foreign birth, but the actual state of alienage at the time of voting. The great number of cases in which the disqualification has been fully made out, and the votes deducted from the one party or the other, sufficiently answer the objection which has been supposed to arise from the alleged impossibility of proving the negative. In none of these instances were the parties put to the necessity of searching every "court of record having common-law jurisdiction, and a clerk, and seal, in the Union.." In some cases the voters themselves have declared, under oath, that they were never naturalized ; in others, while asserting their naturalization, they have stated circumstances inconsistent with it. In short, an infinite variety of circumstances, which will be found in the evidence, joined with the fact of foreign birth, have completely proven the disqualification in a great number of cases. On the other hand, the hardship of requiring the sitting member, upon the mere proof of foreign birth, to produce before the committee evidence of the nat- uralization of hundreds or thousands of persons over whom he has no control, and who, by withholding that proof, may vacate his election, must readily be admitted. The proper season to demand such proof is at the polls. There the voter is the actor; he comes forward claiming to exercise a right, and there he should prove his qualification. Where the case assumes the form of a contested election between other parties, the disqualification must be made out by the party seeking to overthrow the right of the sitting member thus acquired at the polls. «, But it is not upon the sitting members alone, in this case, that the rule con- tended for would have hardly operated. Had it been adopted and applied, it must have led inevitably, in particular instances, to the virtual disqualification of men who had lived long enough among us to'have seen several generations spring into existence, and who had well and faithfully served the State in war and in peace, Many of these principles being equally applicable to the other grounds of dis_ CONTESTED ELECTION CASES IN CONGKESS. 27 qualification, it will not be necessary to do more than briefly notice the remaining classes. 2. Non-residents. The law of New Jersey (act June, 1820, sec. 4, 1 Laws New Jersey, 74l) requires that the voter should have " resided in the county where he claims a vote, for at least one year immediately preceding the election ;" and (ib., sec. 7) that lie shall not "be permitted to vote" "only in the township where he usually resides." No term of residence in the township is prescribed ; and all that has been required by the committee is, that the voter should have an actual bona fide residence in the township where his vote was received. Upon these questions of residence, both in county and township, the commit- tee have endeavored to apply the well-settled principles of law ; and the differences of opinion have rarely, if ever, extended beyond the question of the effect of the various facts as proving or disproving the coincidence of fact and intention. As to minors, nothing need be said, further than to cite the law. (Act June, 1820, sec. 4.) Of men of color, there were two voters whose votes were deducted ; (act June, 1820, sec. 4;) one on each side. Persons non compos mentis are not expressly disqualified by the terms of the law; but the committee entertained the allegation in a single instance, from the general reason and nature of the case. Questions of sanity, however, being of the most delicate and difficult which arise in the courts, the committee could not consent to disqualify a voter on this ground, except upon thejaos^ dis- tinct and indubitable proof; and none such being adduced, his vote was not dis- turbed. The remaining ground of disqualification seems to demand more particular notice. The fundamental law, or quasi constitution, of the State of New Jersey, passed in Provincial Gdngress of New Jersey, July 2, 1776, (1 Laws N. J., p. 4,) re- quires, among other things, (sec. 4,) that the voter shall be "worth <=£50 proc- lamation money, clear estate, within the colony." By the 4th section of the act of June, 1820, (1 Laws N. J., 741,) the same property qualification is expressly re-enacted. By the 5th and 6th sections of the same law, it is enacted as follows : Sec. 5. That every person who shall in other respects be entitled to a vote, and wh o shall have paid a tax for the use of the county or the State, and whose name shall be enrolled on any duplicate list of the last State or county tax, shall be adjudged by the officers con- ducting the election to be worth £50, money aforesaid, clear estate. Sec. 6. That no person shall hereafter be deemed by the officers conducting the election to be a qualified voter, in respect of estate, who has not either paid a tax, or whose name is not enrolled on the duplicate as aforesaid, except in the cases of persons who may have arrived at the age of twenty-one years since, &c. Without attempting, in this place, to criticise minutely the respective provisions of these laws, it may be sufficient to state, that they seem at least to confine the right of suffrage, in all cases, to bona fide taxable citizens, in other respects duly qualified. When, therefore, it has appeared that previous to and at the time of voting the voter has received support from the town as a pauper, and has not paid a tax, the committee have not considered him a '• qualified voter in re- spect of estate." So, also, where a person of that class was brought to the polls, and a tax there paid for him by another, on condition that he should vote a certain ticket, the committee did not consider the former a bona fide tax-payer, and his vote was deducted. With these general remarks as to the several classes of disqualified voters, and the course of the committee in the ascertainment of the disqualification, it may be sufficient to pass to the subject of the appropriation of the votes. It being satisfactorily ascertained that an unlawful vote was counted at that 28 CONTESTED ELECTION CASES IN CONGRESS. election, the next inquiry which arose was as to the party for whom it was cast at the polls. The elections in New Jersey are by ballot ; and it will readily be perceived that this inquiry was not without serious difficulties. Although, in numerous instances, the voter, being examined as a witness, vol- untarily disclosed the character of his vote, yet, in many cases, he either did not appear, or, appearing, chose to avail himself of his legal right to refuse an answer on that point. In such cases the proof of general reputation as to the political character of the voter, and as to the party to which he belonged at the time of the election, has been considered sufficiently demonstrative of the com- plexion of his vote. Where no such proof was adduced on either side, proof of the declarations of the voter has been received ; the date and all the circum- stances of such declarations being considered as connecting themselves with the questions of credibility and sufficiency. In every instance where the proof, un- der all the circumstances, was not sufficient to produce conviction, the vote has been left unappropriated. The same principles have governed the committee in regard to the votes de- cided to have been improperly rejected at the polls. Whatever doubt might have existed as to the propriety of adding these votes to the respective polls, the addition in this case was, as is recited in the preamble to the resolution adopted by the committee on the 11th instant, with the concurrence of parties on both sides in attendance, as to the propriety of so doing. Of these votes, sixteen were added to the votes for P. D. Vroom and his associates, and six to the votes for the opposite party. It only remains to notice the objections made to the validity of the election at South Amboy, and the allegation of fraudulent practices by the officers of the election at Saddle river. The objections to the election in those two townships will be considered in the order in which they are named. For himself and associates, " Mr. Halsted objects to the election held in the township of South Amboy, in the county of Middlesex, because the said elec- tion was held by judges who were not chosen according to law ; "And because John B. Appelget, who had been duly chosen inspector of said election, according to law, to supply the place of Clarkson Brown, who was dis- qualified, was not permitted to act as inspector at said election in said township ; " And because James M. Warne acted as inspector of said election in said township, without having been duly elected inspector according to law ; "And because there was no certificate of the election of the said James M. Warne, inspector, signed by three reputable freeholders, transmitted to the clerk of the common pleas of the county of Middlesex within the time prescribed by law ; "And because the judge of the election in said township of South Amboy knowingly received illegal votes ; "And because the said judges of said election did not conduct the said elec- tion in said township according to law." After having heard and considered the testimony in support of the above alle- gations, the committee unanimously resolved "that there did not 'appear any sufficient reason for setting aside the election in South Amboy." In New Jersey the election is conducted in each township by a judge, and the assessor and collector of the township, who are ex officio inspectors of elec- tion ; and the law prescribes that " if the judge, assessor, and collector, or either of them, shall not be present at the time and place of holding the election, or shall be disqualified to hold the same, then, at the hour of ten o'clock, the people present entitled to vote shall proceed to choose a person or persons to serve in the place of him or them so absent or disqualified." — (See Revised Laws of New Jersey, page 274.) CONTESTED ELECTION CASES IN CONGRESS. 29 i It appears, by the testimony upon this subject, that one of the inspectors of the election at South Amboy became disqualified to act, by reason of being a candidate for the State legislature; and that, to supply this vacancy, three per- sons were placed in nomination, to wit: John B. Appelget, James M. Warne, and J. V. Gordon. If the testimony of Timothy Wood and Phineas Mundy, the tellers appointed to count the votes ; of Nathaniel Hillyer, the judge of the election, who an- nounced the result ; and of several other witnessesr who had the best opportu- nity of knowing what actually took place, is to be believed, there cannot be a doubt that the election of James M. Warne as inspector was substantially in conformity with law. (See printed testimony accompanying this report, from page 500 to 514, both inclusive.) If, on the contrary, the testimony of Charles Fish, of Thomas Appelget, of John Seward, of Jacob Herbert, and of John B. Appelget, stood uncontradicted, the conclusion would be irresistible that great irregularity had prevailed in the election of inspector. (See pages 543, 544, 545, 549, 62], 622, of this report.) To contrast this testimony, however, with that of those previously referred to, among whom were all the officers of the election, whose official duty it was to know what had actually taken place, it is impossible, without imputing de- liberate perjury to one set of deponents or the other, to come to any other con- clusion than that the last-aamed witnesses spoke from mistaken impressions, not unlikely to occur in the tumult and confusion of an excited popular election, conducted neither viva voce nor by ballot, but by the friends of the respective parties dividing in different directions, as indicated by the various points of the compass. * If the positive testimony upon this subject left any doubt, circumstantial evi- dence, derived from the disproportion between the parties, might be resorted to in corroboration of the conclusion to which the committee have come. In the election for Congress, held immediately after the election for inspector, the highest number of votes received by any gentleman of Mr. Appelget's party was but 45 ; while the lowest number received for any candidate of the party of which Mr. Warne was a member was 295. The last-named witnesses rep- resent Appelget to have been elected inspector by a majority of about three to one. If they are not mistaken, the extraordinary circumstance has occurred, that, at a period of great party excitement, the candidate of a party, bearing the relative proportion of less than one to six to the other, has been elected, over the combined strength of his opponents, by a majority of about three to one. The committee, however, feel no necessity for resorting to circumstantial evidence in support of their opinion " that the contestants have failed to estab- lish their first allegation," to wit: " That the election at Souik Amboy, in the county of Middlesex, was held by officers not chosen according to laic." The second allegation necessarily falls with the first. The third allegation, to wit : " That there was no certificate of the election of James M. Warne, inspector, signed by three reputable freeholders, transmitted to the clerk of the common pleas of the county of Middlesex within the time pre- scribed by law," although proved, is believed, by the committee to be entirely inadequate to affect the validity of an election legally held. Surely it cannot be that one of the dearest rights of Jerseymen — a right which, more than any other, distinguishes the citizens of a representative government from the sub- jects of a despot — is to be trampled in the dust, because, forsooth, there was no certificate of the election of James M. Warne, inspector, signed by three repu- table freeholders, transmitted to the clerk of common pleas of the county of Mid- dlesex within three days thereafter ! Whatever pretext such an omission may have afforded to the clerk of the county of Middlesex for the perpetration of a daring outrage upon the rights of his fellow-citizens, in suppressing the votes polled at South Amboy, in the return transmitted by him to the governor, it can- 30 CONTESTED ELECTION CASES IN CONGRESS,. not affect the legality of the election. It was not necessary that a certificate of the election of the inspector should have been transmitted to the clerk of com- mon pleas, either before or during the election ; and the omission to do so afterwards cannot have a retrospective effect to defeat the will of the people, expressed in conformity with law. The disqualification of an officer, to affect the legality of an election, must evidently be co-existent with the election. The fourth and fifth allegations are, in substance, that the judges of the elec- tion knowingly received illegal votes, and did not conduct the election according to law. Illegal votes were proved before the committee to have been received for both parties at South Amboy, of which the poll has been purged by the committee ; but, so far as intention was concerned, it appears, by the evidence, that the elec- tion was fairly, honestly, and legally conducted ; and the proof is insufficient to establish the fact that a single illegal vote was knowingly received. Mr. Halsted and associates also claim to set aside the poll held at the town- ship of Saddle river, in the county of Bergen, because eight votes, at least, given for tliem by persons legally entitled to vote,werefraudulently abstracted from the ballot-box, and at least as many for their opponents substituted in their place ; because, in making out the list of votes in said township, at least eight votes less than were actually given for them were counted in their favor, and at least as many were counted for their opponents more than they actually received ; and because the list of votes of said township shows upon its face evidence of mistake or fraud. In support of these allegations, the depositions of 31 voters are produced, each one of whom swears that he voted the whig ticket ; and, by the deposition of the clerk of the election, it appears that one other, who was not sworn in person, voted the same ticket; making, in all, 32 votes. (See testimony accompanying this report, from page 424 to 446, inclusive.) They also show that the officers of the election at Saddle river returned but 24 votes for them, leaving 8 votes to be accounted for; and that 127 votes in all were returned, when it appears that there should have been but 126. On the part of Messrs. Vroom and associates, it is contended that the election at Saddle river was fairly and legally conducted; that the ballot-box was so secured that it was impossible for it to have been violated without discovery ; or for tickets to be put into or taken out of it without the knowledge of the officers of the election. (See pages 443, 446, 447, and 448, of this report.) They endeavor to account for eight votes less being enumerated for Messrs. Aycrigg and associates than it is alleged they have received, by showing that a double whig ticket, folded together, was rejected from the count by the officers, as the law requires ; that the name of one of the deponents, who swears that he voted the whig ticket, by the testimony of the clerk of the election does not appear on the poll-list. They also show, by positive proof, that another of these deponents voted the democratic ticket; aud, from circumstantial evidence, endeavor to show that five others of them voted the same ; leaving the discrep- ancy between the number of votes received by both parties, and the whole num- ber of votes as returned, unaccounted for, except by supposing that the clerk of the election may have omitted to have recorded the name of one of the voters on the poll-list, or that two votes may have been thrown in by one person, in such a way as to conceal the act. (See testimony accompanying this report, pages 432, 433, 437, 441, 443, 461, 464, 467, and 468.) Although the testimony above referred to is by no means conclusive as to every vote attempted to be accounted for, the committee are so well convinced, from the evidence, that the election was fairly and legally conducted, and that no fraud was perpetrated on the ballot-box, that they have determined to take the return of the officers of the election as the best evidence produced, and to, sustain the legality of the Saddle river poll. CONTESTED ELECTION CASES IN CONGRESS. 31 [The report here sums up the legal votes cast, giving to each sitting niembe r a clear majority. It continues :] The committee do not think it necessary to comment upon the extraordinary transactions which occurred in New Jersey shortly after the closing of the polls, and from which, it is believed, all the difficulties of this case originated, further than to say, that, in suppressing the votes of Millville and South Amboy, the clerks of Middlesex and Cumberland were guilty of a gross violation of the elective franchise, calculated virtually to deprive the people of one of their dearest rights, and to keep from this house a knowledge of those facts by which alone it can judge of the election of its members. The duties of those clerks as returning officers were strictly ministerial; and when, instead of making a faithful record of the people's will, as expressed at the polls, and transmitting those records to the governor, or person administering the laws of the State, they undertook to decide upon the legality of the polls, and to act in accordance with those decisions, they exercised an unauthorized power, which, for more than three months, silenced the voices of five out of the six members to , which New Jersey was entitled in the House of Representatives ; and for which their conduct, whether proceeding from ignorance or design, must meet with the unqual- ified disapprobation of the honest and intelligent of every party. And concludes : Thus it appears that the result of this investigation has been to increase the majority of the five claimants who received the greatest number of votes from the whole State ; and the committee recommend the adoption of the following resolution : Resolved, That Peter D. Vroom, Philemon Dickerson, William R. Cooper, "Daniel B. Ryall, and Joseph Kille are entitled to occupy, as members of the House of Representatives, the five contested seats from the State of New Jersey. The minority report recommended no specific action, though it claimed that three of the contestants received a majority of the legal votes cast. The mi- nority argue as follows upon one contested point : But we now desire to call the particular attention of the House to the all-con- trolling principle which pervaded the deliberations of the committee, and which was ingeniously adapted to favor the " foregone conclusion " that the opposi- tion claimants are not entitled to the contested seats. The House will recollect the position of the controversy at the time we commenced the inquiry into the facts. The majority of the committee had previously reported to the House that the administration claimants had received at the poll a majority of votes of from thirty to one hundred and ninety-eight; hence it will be perceived that the party having such majority were interested to make the proof of illegal votes as difficult as possible. Any general rule, the effect of which, though ad- ministered with impartiality, should be to increase the embarrassment, would obviously operate in their favor ; and, we ask, what rule could be better adapt- ed to the end suggested, than that of giving an inordinate effect to the recep- tion of a disputed vote at the polls 1 This idea was a prolific source of difficulty to the committee, and, what is of more consequence, of flagrant injustice to one of the parties. One of the many progeny of this suggestion was, the legal ab- surdity that the party objecting on the ground of alienage must, under all cir- cumstances, prove not only that the voter was an alien born, but, in addition, that he never had been naturalized. The committee knew, at the outset, that Messrs. Aycrigg and others expected to prove many alien votes to establish 32 CONTESTED ELECTION CASES IN CONGRESS. their right to the seats ; this was set forth fully in the exposition of facts which they submitted to the committee at an early stage of the proceedings. The House cannot fail to observe how admirably the rule of' negative proof is fitted to embarrass one side of this controversy, and to fortify the position of the other side ; but, nevertheless, it is the duty of the party thus embarrassed to sub- mit to the evil, if the rule jtself be founded in law. But we insist that it is not so founded. No precedent can he found of the application of such a rule to such a case. The party having the affirmative of the issue takes the burden of proof. A foreigner comes to the polls and votes : you can prove that he is such, but how can you prove that he has not been naturalized ? Perhaps he may be willing to testify, and then you may prove the fact by his own oath. But suppose he is dead, or has removed away, or chooses to stand mute ; he cannot be put to the question — he cannot be compelled to criminate himself. The rule imposes on the party objecting the necessity of searching all the records in the Union, and of getting the testimony of every record-keeper to prove the fact. This is mani- festly impossible. No man in his senses can believe that any such rule exists. It is a principle of the law of evidence " that the affirmative of the issue must be proved ; and he who makes an assertion is the person who is expected to support it, before he calls on his opponent for an answer." And again: "the burden of proof lies on the person who has to support his case, by proving a fact of which he is believed to be cognizant." ( Vide Rogers's Law and Prac- tice of Elections, pages 114-117.) To suppose any member of the committee to be ignorant of a rule of law so old and universal, and founded in so much good sense, would be to justify his integrity, and maintain his impartiality, at the expense of his judgment, and of every qualification required for the proper discharge of the duties of a commit- tee on elections. We disclaim all design of charging the course adopted by the majority to corrupt intentions, but we are very reluctant to embrace the other branch of the alternative ; and conclude, therefore, that some strange prejudice must have taken possession of the mind, and led the judgment captive at will. But not only did the committee adopt a very extraordinary rule, but they applied it to the case in a very extraordinary manner ; and they essentially ag- gravated the evil which that rule was adapted to inflict. For they held votes to be lawful on account of the absence of proof of non-naturalization in cases where — 1. The election officers decided that aliens had a right to vote according to law, and avowedly admitted them to vote on that ground. 2. Where aliens were summoned before the magistrates who took the evidence, and where they refused to attend, or, if they attended, stood mute as to their right. 3. Where the two circumstances above indicated were combined, as they were in many of the cases submitted to the committee. 4. Where aliens produced at the polls, as evidence of naturalization, a declaration of an intent to become naturalized at a future period ; which we all know is a mere preliminary step to, but is not uaturalizatio* itself. In many cases the committee held votes to be lawful where all the above circumstances were united against the voter; and we should be wanting in duty to the contesting parties, to the people of New Jersey, and of the whole coun- try, if we did not bring the conduct of the majority, in this particular, distinctly to the notice of the House. The House adopted the report of the committee without debate — yeas 101, nays 22 ; just a quorum, a large number of the members declining to vote. The minority report claimed that three only of the " whig contestants " were entitled to seats, but did not recommend any specific action to the House. CONTESTED ELECTION CASES IN CONGRESS. 33 NOTE. — The debates and reports in this celebrated case are so voluminous that no attempt has been made to extract from the former, or to give the latter in full. The reports and evidence will be found in full in Reports of Committees, 1st session 26th Congress, vol. 2, p. 506; vol. 3, p. 541. The debate lasted from December 2, 1839, to July 17, 1840— the first fortnight without intermission of a day. No speeches were made upon the main report. The entire debate will be found in volume 8 of the Congressional Globe, 1st session of the 26th Congress. TWENTY-SIXTH CONGRESS, FIRST SESSION. Ingersoll vs. Naylor, of Pennsylvania. Where* extensive frauds were alleged the committee refused to receive hearsay evidence. A political census taken was considered too vague and uncertain upon which to base a judi- cial decision. IN THE HOUSE OF REPRESENTATIVES. July 17, 1840. Mr. Fillmore, from the Committee of Elections, made the following report : That the respective parties to the contest, at the request of the committee, stated in writing the grounds on whish they relied, and were- then authorized by the committee to take their evidence by deposition. The testimony thus taken, together with numerous Tecords from the prothonotary's office, was laid be- fore the committee, and the argument upon the same closed on the 29th day of May, 1840 ; when Mr. Medill moved that the depositions in the case be printed. Mr. Fillmore moved, as a substitute, that the committee would then proceed to decide the case; and the question being taken on Mr. Fillmore's substitute, it was lost by a tie vote — Mr. Botts being absent ; and consequently there being but eight members present. The motion of Mr. Medill was then adopted by a vote of five to three. The committee then proceeded to an investigation of the New Jersey case, in which they were engaged every day until late on Saturday night of the 11th instant. On the Monday fullowing this case was again taken up ;■ and on Tuesday, the 14th, the committee, on motion of Mr. Botts, by a vote of five to three, adopted the following preamble and resolution : Whereas, in the opinion of this committee, no evidence of fraud or illegality has been ex- hibited sufficient to justify a recommendation to the House of Representatives to set aside the election held for the third congressional district of the State of Pennsylvania, in the year 1838: Resolved, therefore, (as the opinion of this committee,) That Charles Naylor, esq., was duly elected a member of the 26th Congress of the United States ; and that the chairman of the committee be instructed to prepare a report to that effect, to be presented to the House of Representatives. At the request of the chairman, who was at that time engaged in preparing a report on the New Jersey case, Mr. Fillmore consented to act in his place, and has prepared the report which is now presented to the consideration of the House. The testimony in this case is very voluminous, comprising five hundred and forty-two printed pages, besides large bundles of manuscripts, which the com- mittee deemed it unnecessary to print. The late day at which the committee came to this decision, with the press of business incident to the close of a pro- H. Mis. Doc. 57 3 34 CONTESTED ELECTION CASES IN CONGRESS. tracted session, precludes the idea of entering into and analyzing this undigested mass, the material portions of which are now ready to be laid before the House. Without dwelling longer upon this subject, the committee proceed to make a. few remarks upon the merits of the controversy. Mr. Ingereoll having the affirmative, limited the grounds of his complaint to the election district of Spring Garden, and to five of the seven wards of the incorporated district of the North- ern Liberties. As to the five wards of the Northern Liberties, he alleged, in substance, that by a conspiracy among the election officers to carry the election by fraud, many hundred names were illegally and fraudulently added to the registries of voters, being the names of persons having either no existence or no right to vote, whose votes, or pretended votes, were nevertheless counted and allowed to Mr. Naylor. A large amount of hearsay evidence was brought forward to sustain, this among other allegations ; but it was of that character that the committee do not deem it worthy of any consideration or credit ; and the most material parts of it were fully contradicted by competent and unimpeached testimony on the other side. The rule upon which the committee reject all this hearsay evidence they conceive too well settled and too clear and just to require any argument. If all experience has shown that in the administration of justice in the most petty and trifling matters between man and man there is no security for truth without the sanction of an oath, every one must admit that in a controversy which enlists the strongest passions of our nature, often stimulated by ambition and partisan prejudice and animosity, we cannot safely dispense with this great security. If evidence of this character were received, it might be manufactured with impunity to any amount, and no representative could be secure ofhis seat for a single day. Mr. Naylor's majority is 775. No attempt was made by direct evidence to purge the polls; nor has the petitioner shown, or attempted to show, that a single illegal vote was received by the officers of election, or a single fictitious one allowed to the sitting member. Though the addition of a large number of names to the register in one of the wards in Spring Garden, by the officers whose duty it was to prepare it, was a suspicious circumstance, re- quiring careful scrutiny ; yet, as the error, if any, was corrected before the election commenced, and as there is no proof of any illegal vote having been given in that ward at that election, the committee do not see how this fact can possibly be invoked to affect the result. The attempted political census, had it been otherwise competent, was clearly too vague and uncertain to lay the foundation for any judicial decision ; all the material facts in it come under the general denomination of hearsay evidence of the most loose and unsatisfactory kind ; and, besides, when contrasted with the other authentic evidence, it becomes utterly worthless. The inductive evidence attempted to be drawn from the registry, as to the number of persons who voted, and of their qualifications, is little more satisfactory. There is no necessary and legal connexion between the names and number of persons who voted and the checks on the registry. The window-list is the true record to determine, not only the names of those who voted, but more especially the number. This is well illustrated by the attempt to show, by calculation, that there were 1,076 persons who voted that were not registered; whereas, by a comparison of the names on the window-lists with those on the registers, the result was shown to be utterly fallacious, and that there was not a single person who voted that was not registered. Surely, arithmetical calculations founded upon such uncertain and unsatisfactory bases are wholly unworthy of credit. The petitioner also charges a number of small irregularities in conducting the election and counting the votes, consisting mainly in slight deviations from the strict requirements of the law. There is no proof that any injustice was done CONTESTED ELECTION CASES IN CONGRESS. 35 or fraud intended ; and,- as there was manifestly a substantial compliance with the law, the committee do not conceive that it could be for the advancement of substantial justice to entertain objections of this kind. Our election laws must . necessarily be administered by men who are not familiar with the construction of statutes ; and all that we have a right to expect are good faith in their acts, and a substantial compliance with the requirements of the law. The evidence clearly justifies the committee in coming to this conclusion. It seems there was no essential difference, in this respect, as to the manner in which the election was conducted in these districts, and in those of which no complaint is made ; but it is in proof, by an officer who had long officiated in these elections, that it was conducted as the elections in that county had been conducted for the last thirty years. As to the district of Spring Garden, the chief allegation made by the peti- tioner is, that the officers of that election, in order that they might carry the election for Mr. Naylor, were not sworn 5 and that therefore it should be set aside. The chief witness (and indeed the only one) by whom this allegation is attempted to be sustained, is William G. Conrow, one of the officers of the election, and the return judge of the district. As this is almost the only evi- dence introduced on the part of the petitioner that comes directly to the point in issue, the committee deem it worthy of a brief examination. It appears from the depositions that, on the 27th day of March last, Mr. Ingersoll called Mr. Conrow as a witness, who was then " duly affirmed." He was then interrogated, on behalf of Mr. Ingersoll, to know whether the election officers of Spring Garden were sworn or affirmed ; and declined answering, for the alleged reason that " no persons had a right to answer questions to criminate themselves, or make them appear notorious." On the 3.0th of the same month he was re-examined by Mr. Ingersoll on the same affirmation, but said nothing as to the qualification of the officers at SpriDg Garden. Subsequently the following named officers of that election, namely, John Stout, jr., Daniel R. Erdman,. John Sloan, David Woelpper, John D. Ninesteel, Joseph T. Rowand, Jesse Williamson, and Daniel J. Weaver, were called and examined as witnesses on behalf of Mr. Naylor, and testified, in substance, in the most direct and unqualified manner, that all the election offi- cers of Spring Garden, including themselves and Mr. Conrow, were duly sworn or affirmed, according to law ; that they, respectively, signed in duplicate the oath or affirmation which they had taken; and that the election had been, in all respects, legally and fairly conducted. Nicholas Esling, esq., the justice of the peace who qualified them, also testi- fied that he administered the oaths and affirmations to " all the officers in that district, according to law, before the opening of the polls ; and that after the oaths and affirmations had been signed by the respective officers to whom they were administered, he certified them according to law." It was also proved that Mr. .Conrow had stated that he filed the oaths and affirmations in the court of common pleas ; and James Hanna, another witness, stated that he was confident that he had seen them. But it is said that the oaths and affirmations required by law are not now to be found in the office of the prothonotary of the court of common pleas. This would be a circumstance of some importance, did it not also appear that the papers in this case had been taken before a committee of the Senate, at Harrisburg ; and that they were so> negligently and carelessly kept by the prothonotary, that they were permitted to be carried out of the office by different persons.. Indeed, it appears from the testimony of the present prothonotary, that when he came into office some of these election papers were out, and remained' out for some months ; and he seems to be a little uncertain where they were, or who returned them. The 36 CONTESTED ELECTION CASES IN CONGRESS. fact that any of these papers are missing under such circumstances is certainly very slight evidence to show that they were never there. After the examination of the above-named witnesses, Mr. Conrow was again called by Mr. Ingersoll, and testified that the other election officers of Spring Garden, besides himself, were either sworn or affirmed " to do justice to their party this [that] day ;" that this mock-oath was administered by Nicholas Esling, esq., " either on a Philadelphia Directory, or the Narrative of the Suffer- ings of some shipwrecked mariner." This statement, with some others, it appears by the cross-examination, was read by the witness from a paper which he held in his hand and taken down by the commissioner. Mr. Naylor's counsel asked to see this paper, that he might ascertain in whose handwriting it was, and annex it to his deposition. This the witness declined, and said : " I can't let it go, sir. I write two differ- ent ways. 1 sometimes give my writing the wrong position. Every word of it is written by myself; every word and letter of it made upon my desk:" He was asked the following question : " Before you were examined the first time, you were solemnly affirmed to tell the truth, the whole truth, and nothing but the truth; why did you not, under that solemn obligation, at your two first examinations, disclose what you have here, at your third examination to-day, related the first time 1" To which he replied, " / thought it might be necessary to hold bach some things as rebutting testimony. I wished to say as little as possible on this subject." He denies all knowledge of any fraud or unfairness in the election. From all this, it is contended (and with much truth, in the opinion of the committee) that the testimony of this witness, independent of the contradictory evidence, is open to suspicion. It is fair to be inferred, from his first examination, that there was some unkind feeling between him and Mr. Naylor. His refusal to testify to these facts when first called, and holding them back when under solemn affirmation to tell the whole truth, for the avowed purpose of using them " as rebutting testimony ;" his reading his testimony from a paper, which he refused to show, and which there is reason to suspect was not in his usual handwriting; and his solemn affirmation (as may be seen by the evidence) that no regular district return, under the hands of the officers, was made out, whereas this original return, under his own hand and seal, has been produced to the committee ; and, finally, his own participation in the act ; — we say that all these circumstances very properly throw a strong shade of doubt over the credibility of this witness. But when, in addition to that, he stands directly confronted and contradicted by a large number of unimpeached witnesses, the committee would do violence to all the known rules of judicial investigation if they did not pronounce his evidence as wholly unworthy of credit. The story itself is extremely improbable. That so many men, thought worthy of official trust by their fellow-citizens, should, in the presence of each other, unblush- ingly submit to such a profane degradation as that mock-oath implied, and that such an oath should be administered and taken, and yet no fraud perpetrated or attempted, is (to say the least of it) approaching to the marvellous. Why was a profane book used for an iniquitous oath ? Beally, it seems to us to require better proof than this, even without contradiction, that twenty gentle- men, (that being the number of officers,) who had hitherto sustained good characters for probity and honor, should voluntarily become the actors in a scene so blasphemously immoral. But it is a relief to the mind to feel that the contradictory evidence is so ample that no doubt remains. The committee would be happy to touch upon other points in the testimony did time permit — not so much because they deem them important, as to show that they had not been overlooked in coming to this conclusion. CONTESTED ELECTION CASES IN CONGRESS. 37 In conclusion, it is thought due to Mr. Naylor to say that there is no evidence to raise a suspicion that, if any fraud or illegality was meditated, it was with his knowledge or consent. No witness has testified to a single dis- honest or dishonorable act on his part. The committee submit to the House the following resolution : Resolved, That Charles Naylor was duly elected a member of the House of Representatives for the twenty-sixth Congress, from the third congressional district in Pennsylvania. In the House Mr. Rives offered the subjoined resolution when the case came up for consideration : Resolved, That the Speaker of this house be requested to issue a subpoena duces tecum to Samuel Hart, esq., prothonotary of the court of common pleas for the city and county of Philadelphia, directing the said Samuel Hart, esq., to appear personally, or by deputy, before this house, at 1 o'clock p. m. on Monday, the l&th instant, with the election returns and other papers on file in his office, relating to the congressional election in the third congres- sional district in the State of Pennsylvania in 1838, there to be examined in evidence in the case of contested election now pending between C. J. Ingersoll.and Charles Naylor, from the said congressional district. Objection was made, and the majority report was adopted by the House, after listening to the arguments of the contestant and the Bitting member, January 15, 1841. TWENTY-SEVENTH CONGRESS, FIRST SESSION. * Committee of Elections. Mr. Ha-lsted, New Jersey. Mr! Gamble, Georgia. Blair, New York. A. V. Brown, Tennessee. Cravens, Indiana. Medill, Ohio. Borden, Massachusetts. J. W. Williams, Maryland. Summers, Virginia. SECOND SESSION. Mr. Halsted, New Jersey. Mr. Barton, Virginia. Blair, New York. Tdrney, Tennessee. Cravens, Indiana. Houston, Alabama. Borden, Massachusetts. Reynolds, Illinois. Randall, Maine. Joshua A. Lowell, of Maine. No report was made in this case, but the facts are set forth in the memorial subjoined : The undersigned, citizens and legal voters in the eighth congressional representative district in the State of Maine, ask leave to represent : That on the 15th day of October, in the year of our Lord eighteen hundred and forty, the governor of Maine issued his warrant to the selectmen of the several towns of the counties of Hancock and Washington,- and which compose said district, to notify the legal voters of said towns to assemble on Monday, the 2d day of November then next, to give in their votes to them for a representative to the Congress of the United States, and to make due return of the votes so received to the secretary of state. That, on the 26th day of December last, a report in council was made, declaring that, in that election, the whole number of votes from said district was ten thousand three hundred and eighty-four ; necessary for a choice, five thousand one hundred and ninety-three ; that Joshua A. Lowell had five thousand one hundred and ninety-four, and was elected ; where- upon the governor caused a certificate of such election, under the broad seal of the State, to be delivered to the said Joshua A. Lowell. 38 CONTESTED ELECTION CASES IN CONGEESS. That it appears by the return from the town of Charlotte, in the county. of Washington,:now in the office of the secretary of state, and by said reportin council, that Joshua A. Lowell had sixty-three votes, and that votes for no other person were returned or counted ; but that it can be made to appear, by the testimony of the electors of said town, that many votes were given in for Joseph C. Noyes ; and that by the records of said town it appears that the number of votes given in for said Noyes were twenty-nine, and those for Lowell were sixty-two ; and that, if those votes had been returned and counted, said Lowell "would not have been declared elected. That the governor's warrant was directed to all of the towns in said district, and, by law, it ought to have been seasonably delivered to the selectmen of every town ; yet it can be made to appear that said warrant was not seasonably delivered to the selectmen of the town of Dedham, in the county of Hancock, by reason whereof the inhabitants of that town were not required to, and did not, give in their votes for a representative on that day, which was contrary to the constitution and laws of the State of Maine. That twelve votes, returned by the selectmen of Springfield as given by inhabitants of said district for Joseph C. Noyes, were improperly rejected by the council, and that votes for Joshua A. Lowell were received and returned by the assessors of Presqu'isle plantation from persons living out of the said district, and which were improperly counted in said re- port. Wherefore, we respectfully request that inquiry may be made into the matters set forth'in this remonstrance ; and if it shall appear that Mr. Lowell did not receive a majority of all the legal votes given, or that all of the legal voters in said district were not duly notified to give in their votes at that election, that he may not be permitted to hold his seat in said House under said certificate, but that a vacancy be declared in this district. The sitting member submitted the following reply to the memorial : To the honorable Committee of Elections of the House of Representatives of the United States: Gentlemen : The remonstrance of George Hobbs, Ichabod E. Chadboume, and sixteen others, against my right to a seat in said House, as representative from the district of Han- cock and Washington, in the State of Maine — which remonstrance is not ' ' addressed to the House," was not "presented by the Speaker, or by a member in his place," and "abrief statement of the contents thereof made verbally by the introducer," and which, therefore, should not have been received and referred — is founded upon three grounds, namely : First. An alleged error in the return of votes given in the town of Charlotte, in the county of Washington, of thirty votes. Second. That twelve votes, given in the town of Springfield, by persons living within said district, for Joseph C. Noyes, were rejected by the governor and council, and the votes of persons residing without said district were received and counted at Presqu'isle plantation. Third. That the warrant or precept from the governor, for the meeting to elect a member of Congress for said district, was never received by the inhabitants of the town of Dedham, in the county of Hancock, and no meeting of the inhabitants was called for the choice of representative, whereby the inhabitants of said town of Dedham were wholly disfranchised, contrary to the constitution and laws of the State. The remonstrance of B. W. Hinkley, Thomas Eobinson, and fifty-one others, is the same in substance as the first ; and, in answering the allegations contained in the former, I shall necessarily answer those contained in the latter. Before making a definite and formal answer to the allegations in said remonstrance, it may not be improper for me to state that the laws of Maine regulating the election of members of Congress require a majority of all the votes given by qualified electors, at the time, places, and in the manner therein prescribed, and returned, according to law, by the proper officers to the office of the secretary of state within thirty days next succeeding the election. Itismadethedutyof thesecretary of state to lay the returns so made before the governor and council, and it is the duty of the governor, "in case of an election for any district by a ma- jority of votes returned from such district, forthwith to transmit to the person or persons so chosen a CERTIFICATE- OP SUCH CHOICE, signed by the governor and countersigned by the secretary." At the meeting on the second Monday in September, 1840, three candidates were voted for and no election was effected. In pursuance of law the governor ordered- a second trial on the first Monday in November, then next and now past, being the time of the presidential election, and precepts were duly issued to the several towns and plantations in the district for that purpose, and the sheriffs of the respective counties seasonably transmitted the same to the selectmen of the several towns and the assessors of the several plantations within the district, according to law. At the second trial there were also three candidates, namely: Hon. Jos. C. Noyes, Samuel Wheeler, esq., and myself. The whole number of votes returned, as given in said district, was ten thousand three hundred and eighty-four, of which number I received five thousand one hundred and ninety- our, Mr. Noyes five thousand and fifty-one, Mr. Wheeler one hundred and thirty-three, and there were six scattering votes ; by which it will be seen that I had a majority of four votes CONTESTED ELECTION CASES IN CONGRESS. 39 over all others. The returns were laid before the governor and council, and, there being an election, the governor, in accordance with the requisition of the law, transmitted to me a cer- tificate of such choice, under the great seal of the State, signed by himself and counter- signed by the secretary, which certificate I herewith submit and make a part of the case. It is not contended that such certificate is conclusive evidence of the right of a member to a seat in the House, although it is prima facie evidence of that right. It may be rebutted and invalidated by legal and satisfactory proof that it was founded either upon fraud or error. But the burden of proof is upon those who contest the seat ; and they ought to be required to produce clear, strong, and convincing evidence that the person holding under such certificate was not duly elected. To the allegation that there was an erroneous or false return from the town of Charlotte, in the county of Washington, I answer, that I do not know, of my own knowledge, whether said allegation be true or untrue. The selectmen and clerk of said town, with whom I am not personally acquainted, sustain a fair reputation in the community, and are regarded as gentlemen of unimpeachable characters'. . That they committed an error or fraud of the kind alleged, in making the returns of votes, although possible, is highly improbable, and contrary to the natural and legal presumption ; and I therefore deny the statement made by the re- monstrants in relation to said pretended error or fraud in the returns of votes from said town. But if said alleged error were proved clearly and conclusively, I should still be entitled to the seat by a correction of the erroneous returns made against me, by a rejection of all the illegal votes given at the election, and an allowance of all the legal votes tendered by qualified electors, and rejected by the presiding officers. Should the committee determine to go behind the certificate of election for the purpose of correcting errors made in my favor, it is presumed that they will also give me a fair and reasonable opportunity to prove the existence of errors made against me ; that illegal votes were received and allowed agaiost me, and legal votes tendered for me and rejected ; and that they will cause a commission or some legal authority to be issued, to take depositions to prove these facts, and allow a sufficient length of time to procure the testimony. In which case, I believe that I can prove that the paper purporting to be a return of votes from Long Island plantation, in the county of Hancock, stating that a legal meeting was held in said planta- tion on said second day'of November, and that Joseph C. Noyes received 23 votes, and making no mention of there being any votes for any other person, was not only illegal upon its face, the number of votes being mfigures, and not written in words at length, as required by law, but was wholly untrue and erroneous in point of fact ; that no such plantation was organized according to law, or had any legal existence ; that no limits of such plantation were returned by the assessors to the secretary of state, and by him recorded, as required by law ; that no names of the voters were returned, as required by law ; and no assessors and clerk chosen and sworn, as required by law ; but that the meeting, if any such were held, was called without law, by persons having no authority ; and that said votes, if any such were given, were given by persons who were not qualified electors. Also, that the meeting at a place called Plantation Number Thirty-three, in said county of Hancock, from which there was a return made of six votes for Joseph C. Noyes, and one vote for myself, was wholly illegal, the same having been held two hours before the time at which it was notified to be held, the votes having been received and the people dispersed before the time arrived for opening said meeting; and that the votes were not received, sorted, counted, declared, and sealed up, in open plantation meeting, as required by law. Also, that the town meeting in Macbias Port, in the county of Washington, from which there were returned seventy-four votes for Joseph C. Noyes, one vote for Peter Talbot, and sixty-seven votes for myself, was wholly illegal, the same not having been notified or warned according to law, or in the manner legally agreed upon by the inhabitants of said town ; one if not both of the notifications for said meeting, required by law and long established usage to be posted up, containing an article for a meeting to choose electors of President and Vice President, but none for the choice of a representative in Congress, whereby many qualified electors and legal voters, who would have attended said meeting and voted for me, if they had known of the same, were wholly disfranchised. I believe I can also prove, if a reasonable time be allowed for that purpose, that a large number of persons, not qualified electors in said district, were permitted to vote in said elec- tion ; and that their votes were received, counted, and allowed against me, to wit : the votes of aliens, being citizens of the British provinces : the votes of citizens of Massachusetts, of Connecticut,- of New York, and other States ; the votes of minors, under the age of twenty- one years ; of paupers, and persons under guardianship, and of non-residents, or persons who had not had their residence established, as required by the constitution of Maine, in the town or plantation where they were permitted to vote, for the three months next preceding the day of election. I have not yet been able to ascertain the precise number of persons so disqualified who voted against me at said election ; but, from the best information I could obtain, prior to my leaving nome in May last, I am of the opinion that there were more than one hundred illegal votes received, counted, and allowed against me, at said election. The laws of the United States do not provide for taking testimony to be used in cases ot contested congressional elections ; and the laws of Maine, while they provide for taking tes- 40 CONTESTED ELECTION CASES IN CONGRESS. timony to be used in cases of contested elections in the State legislature, are silent on the subject of contested elections in Congress. Testimony to be used in contested elections to Congress can therefore be taken in Maine only by the consent of parties, or by virtue of some power to be given to commissioners by the House itself. And I here repeat the notice which I fave to the committee, at their session on the first instant, that I shall object to all evidence eretofore taken, which has been or may be offered against my right to a seat in the House, as taken ex parte, without law and against law. Should the committee consider it proper and expedient to make any examination beyond the certificate of election, I desire that capable, discreet, and judicious men may be appointed, in different parts of the district, with power to send for persons and papers, take depositions, and compel the attendance of witnesses before them for that purpose ; and that a reasonable time be allowed for taking and returning said testimony. To the allegation that twelve votes were given for Joseph C. Noyes in the town of Spring- field, and rejected by the governor and council, I answer: That the town of Springfield is not within said congressional district, and never was within said district, but is within the county of Penobscot, in the congressional district of Penobscot and Somerset — a fact which is not mentioned in either of said remonstrances. It does not appear that said votes were given by qualified electors, and, in point of fact, they were not given by qualified electors. 1st. The persons giving the votes did not reside in an incorporated town, or organized plan- tation, or in an unincorporated place adjacent to an incorporated town within the district. They were not, therefore, qualified electors to vote for representative in Congress in any place. 2d. If they were qualified electors within the district, there is no law by which they could vote out of or beyond the limits of the district. 3d. There is no law authorizing the selectmen of Springfield, or any other officers of any city, town, or plantation, beyond the limits of the Hancock and Washington congressional district, to call meetings, to receive, sort, count, declare, seal up, and return votes for a representative in Congress to represent said district. 4th. No vacancy existed in the Penobscot and Somerset district, within which said town of Springfield lies. 5th. No precept was issued to the selectmen of Springfield, or any other town in said Penobscot and Somerset district, by the governor. 6th. No warrant was issued by the selectmen of Springfield for notifying a meeting to elect a member of Congress. 7th. No notice was given of a meeting in said town to electa member of Congress. 8th. The meeting in said town was called for the choice of electors of President and Vice President, and for no other purpose. 9th. The whole proceeding on tho part of the selectmen of Spring- field was extra official and without law ; and their certificate of votes for a member of Congress in another congressional district was entitled to no other consideration than a similar certifi- cate from the same number of private individuals. Finally, there is no view of the subject in which said certificate could be regarded as competent evidence, and no principle on which votes so given could be received, counted, and allowed as legal. To the allegation that " the votes of persons residing without said district were received and counted at Presqu'isle plantation," I answer, that I believe the same to be untrue. If such votes were given, they should be rejected, and deducted from the votes of the candidate to whom they were given. The names of the persons who voted for member of Congress in said plantation were duly returned, and are now on file in the office of the secretary of state. If any person who did not reside within the district voted for member of Congress in said plantation, and voted for me, it can be easily shown by those who make the allegation. By the return of votes from said plantation, it appears that there were one hundred and nine votes given for electors of President and Vice President, and but one hundred and four votes given for member of Congress. The natural presumption is, therefore, .that persons residing in the plantation, but not within the district, voted for electors of President and Vice Presi- dent, as they could rightfully by law, but did not vote for member of Congress. The remaining allegation, viz : that the warrant or precept for the town meeting on the second day of November was never received by the inhabitants of the town of Dedham, in the county of Hancock, and no meeting was held in said town for the choice of a represent- ative in Congress, may or may not be true; but, if true, would not invalidate the election. A precept was duly issued by the governor, addressed to the selectmen of that town, which was received by the sheriff of the county, a gentleman of the highest integrity and of great purity of character, and was, according to law, transmitted seasonably, in the usual way, by him, to said selectmen ; and I believe the same was duly received by said selectmen. If, however, they did not receive it in season to notify a meeting, it was probably in consequence of some accident or mistake on the part of the selectmen or other inhabitants of said town ; and it is respectfully submitted, that no congressional election has ever been set aside, and ought never to be set aside, for an accidental omission in a single town, especially where the votes of such town would not change the result. In conclusion, I remark that, from all the information I have been able to obtain in rela- tion to the election, / do not entertain a doubt that I received a majority of the legal votes given by qualified electors in the district; that 1 had a majority of the votes legally returned to the office of the secretary of state ; that I was entitled to the certificate of election, and am now the legal representative of said district in the Congress of the United States. J. A. LOWELL. House of Representatives, July 6, 1841. CONTESTED ELECTION CASES IN CONGRESS. 41 The Committee of Elections submitted the following resolution to the House : Resolved, That the Hon. Joshua A. Lowell is entitled to his seat as a member of the 27th Congress from the State of Maine. The House agreed to the resolution without a division. Note. — The only speech on this case was made by Mr. Randall, of Maine, and will be found in vol. 11, part 1, Cong. Globe. TWENTY-SEVENTH CONGRESS, SECOND SESSION. David Levy, of Florida Territory. In this case it was alleged that the delegate (from Florida) was not a citizen of the United States. Although the evidence was not conclusive, the committee was of opinion that the spirit of the naturalization policy of the country had been fully satisfied. It was also' held that the domicile oi the father is the domicile of the son during the minority of the son, if the son be under the control and direction of the father. Daring the first session the committer reported against Mr. Levy, but upon a more thorough examination of the case, at a subse- quent session, that decision was reversed. The final report only is given. IN THE HOUSE OF REPRESENTATIVES, March 15, 1842. Mr. Barton, from the Committee on Elections, to which the subject had been referred, submitted the following report : That the objection made to the right of the delegate rests solely upon the allegation that he is not a citizen of the United States. His election by a due majority of the legal voters of Florida has not been disputed. They have examined the question raised with that care and scrutiny, and at the same time with that liberality, which was due to the interesting and important consequences involved, both as respects the delegate whose political relations with this country are brought into question, and the character of the nation and of this House for justice, and for the observance of that good faith in its national policy which is at once the duty and the ornament of civilized governments. For it will be perceived, in the course of the report, that the degree of credit which should be given to the hitherto recognized acts of certain public officers of the government, evidenced by their authenticated certificates, constitutes an import- ant feature in the inquiry which has been committed to them ; and though, in this particular instance, the satisfactory proof which has been made, by extrinsic evidence, of the fact intended to be certified to by those officers, has rendered a consideration of the effect of their acts by no means essential, yet it cannot escape observation that very important and delicate interests of a portion of the population of Florida may, at some time, become involved in litigation by the decision of the H°use. After a mature consideration of the additional evidence that has been pre- sented to them, taken in connexion with the testimony reported at a former session, the committee have been led to a conclusion the reverse of that to which they arrived upon that occasion. In reporting this result, it is due to themselves to say that the merits of the case were not so fully exhibited in the testimony laid before the committee at that time, and that if the facts had been as fully understood then as now, the necessity of a review of the subject at this session might have been spared. It is admitted by the delegate that he is not a native-born citizen of the United States. But it is in proof that he has lived in the United States from the early age of eight or uine years, has grown up in the belief that he was a 42 CONTESTED ELECTION CASES IN CONGRESS. citizen, and has exercised the rights and performed the duties of citizenship from the time of his maturity. His right rests upon the 6th article of the treaty between Spain and the United States, of the 22d February, 1819, by virtue of which he claims that his father became a citizen from the day of the cession of •Florida to the United States. His father has been a resident of the United States for more than twenty years, has twice taken the oaths of abjuration and allegiance, and is still resident in the country. It is evident, then, that thp spirit of the naturalization policy of this country has been fully satisfied ; and that if the delegate is evicted of the right of which he has been up to this time in the enjoyment, it must be upon purely technical grounds, and must operate ■with great harshness and severity upon him. No principle has been more repeatedly announced by the judicial tribunals of the country, and more constantly aeted upon, than that the leaning, in questions of citizenship, should always be in favor of the claimant of it. And it is a prin- ciple so entirely accordant with the policy and spirit of our institutions that its propriety cannot fail to meet with ready and general acknowledgment. In the interpretation, too, which such a stipulation as that contained in the 6th article of the Florida treaty should receive, the utmost liberality is dictated, as well by reason and a just policy, as by the rules laid down by writers upon public law, and adopted in the practice of all civilized nations. It was a stipulation in behalf of the subject, in favor of liberty and the security of individual rights — it was a stipulation favorable to population — it was a munificent benefit conceded by the government to those the protection of whose persons and property it was about to assume ; and for all these reasons is entitled to a liberal and extensive application. No higher evidence could be required of the beneficent purposes of our government towards those who were connected with the Territories, the dominion of which it was about to acquire, than is afforded by the terms of the article referred to ; and it would ill become the representatives of the nation to restrict by nice and over-scrupulous distinctions the benefits designed to be conferred. It is not, then, with a narrow and contracted spirit that the question involved in this case should be examined or decided. The first point to which the committee have directed their attention is, as to the fact of the inhabitancy of Moses E. Levy (the father of the sitting delegate) in Florida at the time of its transfer to the United States. It is proper, in the first place, to fix with precision the day from which the transfer of Florida date's. It is matter of historical record that the transfer of the ceded country, under the treaty with Spain, commenced at St. Augustine on the 10th July, 1821, and was completed at Pensacola on the 17th day of the same month. Upon the same day Governor Jackson issued his proclamation, according to a form furnished to him from the State Department for the purpose, announcing that the government theretofore exercised over the provinces of the Floridas, under the authority of Spain, had ceased, and that that of the United States of America was established over the same. This proclamation, together with the several commissions under which Gov- ernor Jackson acted, will be found annexed to this report, marked No. 2. It was on the 17th day of July, 1821, then, that the sovereignty of the 'United States over the Floridas was proclaimed', and this day appears to have been universally adopted as the day of the transfer — the point of time from which the cession dates, without reference to the different days upon which 'the flags were exchanged at St. Augustine and Pensacola. It was so adopted in the legislation of Governor Jackson, while administering the government in Florida, and acquiesced in by the executive department of the United States government. It was so expressly adopted afterwards in the legislation of Con- gress, in an instance of striking applicability, to wit, the act of Congress of 26th May, 1822, " granting donations of land to certain actual settlers in the Terri- CONTESTED ELECTION CASES IN CONGRESS. 43 tory of Florida," (Laws of U. S., vol. 7, p. 294 ;) in which act the land com- missioners are directed " to receive claims to land founded on habitation and cultivation commenced between the 22d February, 1819, and the 17th July, 1821, when Florida was surrendered to the United Slates." This act applied to every part of Florida. The same direct and specific designation of that day as the day of transfer, and applicable to the whole of the ceded Territories, without distinction, is found throughout the local legislation of Florida; for repeated instances of which, see 1st volume of Florida Laws, pp. 11, 94, 154, et passim. The committee will now proceed to the inquiry, whether Moses E. Levy was an inhabitant of Florida on the 17th day of July, A. D. 1821. The question of domicile has been a fruitful source of difficulty to courts. It is because no fixed or universal rule can be adopted for its test. The animus manendi is the principal point looked to in the ascertainment of domicile. If the intention to establish a permanent residence be ascertained, the recency of the establishment, though it may have been for a day only, is immaterial. The intent is, in each case, the real subject of inquiry ; " and the circumstances requisite to establish the domicile are flexible, and easily accommodated to the real truth and equity of the case." — (1 Kent's Oomm., 76.) The proof as to the inhabitancy of Moses E. Levy on that day, as exhibited to the committee, consists— 1st. Of the certificates of Forbes and Worthington, in 1822, as to his inhab- itancy. 2d. Of general testimony as to the date and character of hfe settlement in Florida. 1st. As to the proceedings of Worthington and Forbes, it appears that a few days after the cession of Florida an ordnance was proclaimed by Governor Jackson, the purpose of which was to provide a mode of ascertaining the fact of the inhabitancy of those who claimed the benefit of the 6th article of the treaty. The ordinance will be found at large, annexed hereto, marked No. 3. It directs that the mayor should " open a register, and cause to be inscribed the names, age, and occupation of every free male inhabitant, who may be desirous to profit by the provisions of the 6th article of the treaty, provided the person or inhabitant who may thus desire to have his name inscribed shall first satisfy the mayor, or such other person as may be appointed to open registers, that he was really an inhabitant of the ceded territory on the 17th day of July, 1821 ; and provided, also, that he will, of hie own free will and accord, abjure all foreign allegiance, and take the oath of allegiance prescribed by the laws of the United States. The ordinance afterwards provides for the issue, to each person so registered, of certificates of inhabitancy from the register's office, and of citizenship from the secretary of the Territory, based upon such certificates of inhabitancy. The reasons which operated with Governor Jackson in the enact- ment of this ordinance are explained in his communication of July 30, 182.1, to the Secretary of State, an extract from which is presented herewith, marked No. 4. Under this ordinance Moses E. Levy was registered on the 4th March, 1S22, as an inhabitant, took the oaths of abjuration and allegiance, and received a cer- tificate of inhabitancy from the mayor, and a certificate of citizenship from the acting governor and secretary, "Worthington. These proceedings will be found herewith, marked No. 7. A copy of the ordinance under which these proceed- ings occurred was transmitted to the State Department, with his communication of the 30th July, 1821, " for the approval of the President ;" and on the ■ 28th August, 1821, Secretary Worthington communicated to the Department of State a copy of his letter of same date to Governor Jackson, reporting his trans- actions at St. Augustine, and announces his having opened the registry required by the ordinance, in a manner calculated to attract attention. He says : 44 CONTESTED ELECTION CASES IN CONGRESS. "Accordingly, under the waving flag of the Union, on the 25th, the civil officers assembled, with a large concourse of people. Some officers of the navy and army were present, and forty-odd Indians who had just come in. I opened the ceremony by a short address, confined to the occasion, then administered the oath to Judge Fitch, who successively swore in Colonel Forbes, the new mayor, and the other officers ; and the registry for naturalization was openedat the same, time." The subject of this ordinance was thus fully brought to the notice of the executive department of this government at an early period, and appears to have received its acquiescence. At the ensuing session of Congress the letter of Governor Jackson, of the 30th July, 1821, together with the copies of this and other ordinances, were communicated to the House of Representa- tives, and appear to have been acquiesced in by Congress ; for, by the 13th ".section of the act of 30th March, 1822, for the establishment of a territorial government in Florida, the laws then in fotce in Florida (of which this ordi- nance was one) were continued in force. At a subsequent period, to wit, by the act of 7th May, 1822, " to relieve the people of Florida from the operation of certain ordinances," this ordinance was, among others, repealed — the repeal to take effect the succeeding June. On the 21st May, 1822, Acting Governor Worthington transmitted to the Department of State the register of inhabitants who had presented them- selves under> the ordinance, and received certificates, calling attention to the case of Moses E. Levy, which was described as a special one. No objection appears to have been made at any time by the department to those proceed- ings. The letter of Governor "Worthington, with the register, &c, are printed at large with the former report, and may be found at pages 121 et seq. of this report — No. 10 of last session. (See Appendix.) The reasons for the enactment of that ordinance, the effect and operation of the proceedings under it, and his own opinion of the degree of faith to which they are entitled, are set forth in a letter of Hon. H. M. Brackenridge, which was presented to the committee by the delegate. Although this letter cannot be received as evidence in the case, yet the high standing of the writer, his rep- utation as a jurist, particularly in the civil law practice, (which was at that date the system still in force in Florida,) and the excellent opportunity which he had of forming an opinion upon this subject during his long judicial service in Florida, so far entitle it to respect and consideration that the committee have thought proper to append it to the report, marked A. The delegate brought to the notice of the committee the instances in which the proceedings under the ordinance were recognized in the transactions of the custom-house, both in his father's case and those of others whose names appear upon the register. See items Nos. 10, 11, and 12, of the evidence. He also called our attention to the item marked No. 13, which was presented to show to what an extent titles to property would be disturbed by the repudiation of the proceedings under the ordinance. The item consists of a list of convey- ances to which persons contained upon the register transmitted by Worthington are parties, taken from the records of a single county. He also referred the attention of the committee to item No. 6, showing the adoption of a similar pro- ceeding in Louisiana, by Governor Claiborne, with the approval of Mr. Madison, then Secretary of State. Not deeming it nec'essary in this case to discuss the extent to which the United States is bound to recognize and adopt the proceedings under this ordi- nance, the committee abstain from a decision which, if possible, involving, as it does, right of property to such an extent, should be left to the judicial depart- ment of this government. They feel free, however, to say that certain it is, Moses E. Levy could never, after that proceeding, have screened himself from responsibility as a citizen of the United States by disputing the fact of his hav- ing been an inhabitant of Florida, within the meaning and operation of the treaty, at the date of the cession. CONTESTED ELECTION CASES IN CONGRESS. 45 [The report quotes at length from the evidence, and concludes as follows :] It appears, by the testimony, that David Levy, the delegate, arrived at Nor- folk, in the State of Virginia, from the island of St. Thomas, in the West Indies, in the year 1819, (being then eight or nine years of age,) and was there put to school. That, in 1827, he left Virginia and went to Florida, to his paternal home, and has continued a resident of Florida to the present time, being a period of fifteen years' residence in Florida and twenty-three within the juris- diction of the United States. That he has always exercised and enjoyed the" rights of a citizen of the United States ; that he has held repeated trusts in Florida, by election of the people, for which citizenship of the United States constituted an express qualification. It further appears, by the testimony of his father, that he was never informed of there being any doubt, error, or misunderstanding in the s'atement of facts, as presented in the memorial of his said father to Governor Worthington ; and that, at the time of the renewal of the oath of allegiance made by Moses E. Levy, at St. Augustine, in 1831, the delegate was living in Alachua county, which is an interior county of East Florida, engaged in the direction of his father's plantation, (see depositions of Dell and Price,) and there is no evidence that he knew anything of his father's doubts, or of the steps he had adopted to satisfy his mind. On the contrary, from his age and pursuits at the time, it is most probable that he did not. The good faith, then, in which the delegate has relied upon the indisputableness of his citizenship cannot be questioned. It appears, further, that there have been repeated trials of his right within the past two years. 1st. Before a grand jury of St. John's county, sitting in St. Augustine, James Pellicer says : " I never heard his citizenship called into question until lately. It was brought before the grand jury about a year ago. Upon this grand jury there were many of the old inhabitants or natives of Florida, and the opinion of the jury was that David Levy was a citizen. The question before the grand jury was, whether the inspectors of an election had acted correctly in receiving Mr. Levy's vote. Some of his enemies brought it up before the grand jury. It was presented by David R. Dunham." This David R.Dunham is the same individual who heads the remonstrance in this case, and whose deposition, as a witness, has been heretofore noticed. 2d. By the'Executive department of the United States. The letter of the delegate to the Secretary of State, dated July 25, 1840, will show that, in making application for a passport, he referred the attention of the department distinctly to the proceedings on file there, in evidence of tke inhabitancy of his father. The letter is herewith published, (marked No. 27.) 3d. By the highest judicial tribunal of Florida, the court of appeals of that Territory. This court consists of the judges of the several districts, who hold their commissions and receive their salaries from the United States ; and writs of error and appeals lie directly from that tribunal to the Supreme Court of the United States in the same manner as from the United States circuit courts. It appears to have been decided by that court, the judges unanimously concurring, after full argument, " that said David Levy, esq., became and was a citizen of the United State3 of America from the time of the definitive ratification and con- summation of the treaty of amity, settlement, and limits, between the United States of America and the King of Spain, by which the Floridas were ceded to the former, by force and effect of the 6th article of said treaty, and hath been ever since, and now is, such citizen of the United States of America." This decree was rendered on the 13th day of February, 1841, and bears every mark of deliberation, for the rule under which the question came up had been issued on the 27th January preceding, and required cause to be shown on the follow- ing Friday, so that full time occurred to admit of mature consideration. 46 CONTESTED ELECTION CASES IN CONGRESS. 4th. By the popular tribunal; for it appears that the question has been raised before the people of St. Augustine, where the facts are best known, and that their voice has been decisive in his favor. It is further manifest that the general sentiment at St. Augustine has been that his father and himself were in the same category with the old inhabitants generally, and their descendants. Juan Andres, an old inhabitant, says : " Have always considered David Levy |in American citizen, the same as the other young men of the place, who are sons of the old inhabitants of Florida." James M. Gould says : " I have always been on intimate terms with the old inhabitants of St. Augustine, especially the Spanish portion, and the most prominent, and among them have never heard the citizenship of David Levy doubted. They are truly American people, who adopted the American laws after the cession, and have watched, with a jealous eye, any infringement of them, and who do more towards sustaining them than many native-born Amer- icans. They have generally supported David Levy at the elections, and con- sidered him as much a citizen as themselves." Joseph Manucy, another old inhabitant, says : " I never heard that any one doubted that he was a citizen until the question was started by Peter Sken Smith. David Levy was always much beloved by the Floridians, because he behaved himself as a gentleman. I have always considered him as much a citizen as myself." Antonio J. Triay, another old inhabitant, says : " I never heard, until lately, that any one doubted that he was entitled to the right of a citizen. I have considered him as much a citizen as myself I always considered him the same as any of the boys who have been raised here ; and, so far as my knowledge goes, such has been the opinion of the old native inhabitants of the place. So far as I know my friends, they would never have voted for a person whom they supposed to be an alien." James Pellicer, another old inhabitant, says : '' Since the question of David Levy's citizenship has been before the public, the old inhabitants of the place have often discussed it ; and, from what they remembered of the arrival of Moses E. Levy and of David Levy, tbey have always decided that David Levy was a citizen by the same right as themselves." Pedro Benet, another old inhabitant, says : " I have always considered him a citizen, by the right of his father ; and such, as far as I know, has been the general opinion of the native inhabitants of Florida who were here before the change of flags." The 4th section of the act of Congress of 14th April, 1802, secures to the infant children of persons naturalized the benefit of their parents' naturalization, provided such children were at the time living in the United States. It matters . nothing whether the naturalization be effected by act of Congress, by treaty, or by the admission of new States, the provision is alike applicable. The condi- tion of the parent is impressed upon the child. This provision, however, of the law is not necessary in the case of the delegate ; for the principle is perfectly settled and universally admitted that a minor cannot acquire a domicile, but that the domicile of the parent is the domicile of the child during minority— more espe- cially if he be under the control and direction of the parent. The committee do not deem it necessary to discuss further the various points, growing out of the facts above presented, in respect to the delegate's right. They have regarded the strong case made out in respect to the inhabitancy of his father — the repeated decisions which have been made directly upon the question, by a jury, by the judicial tribunals, by the executive departments of the general government, and by the people of Florida — the general sentiment upon the subject at St. Augustine, which could not have arisen and remained so long undisturbed without substantial ground — the evident good faith in CONTESTED ELECTION CASES IN CONGRESS. 47 which the delegate has been so long enjoying the rights and performing the duties of a citizen — as affording a cumulative mass of evidence in favor of the rightfulness of his claim which the committee cannot otherwise than yield to. At all events, it would certainly require a more clear case than is made out by the jarring and contradictory testimony of the witnesses against him, moat of whom are themselves remonstrants, to overcome the violent presumption in favor of his right which is raised by the various evidences above referred to, and the force of which but few impartial minds can fail to admit. They therefore report, as expressive of their opinion, the following resolu- tion, which they recommend for the adoption of fhe House : Resolved, That David Levy, the present delegate from Florida, is now, and was at the time of his election, a citizen of the United States, residing in Florida, and is entitled to his seat in Congress as a delegate from said Territory. The following resolutions have also been adopted in committee, at different stages of its proceedings : Resolved, That, from the evidence taken since the last session of Congress, and received by the committee, together with that which wa< then on file, the committee are of opinion that Moses E. Levy, the father of David Levy, was an inhabitant of Florida on the day of the transfer of that Territory to the United States. Resolved further, That the domicile of the father is the domicile of the son during the minor- ity of the son, if the son be under the control and direction of the father. A vote upon this case was never reached in the House. An attempt was made to continue the investigation, upon fresh evidence submitted, but it failed. Mr. Levy retained his seat to the close of the Congress. TWENTY-EIGHTH CONGEESS, FIEST SESSION. Committee of Elections. Mr. Elmer, New Jersey. Mr. Douglas, Illinois. Chapman, Alabama. Davis, Kentucky. Newton, Virginia. Schenok, Ohio. Hamlin, Maine. A. V. Brown, Tennessee. Ellis, New York. THE CASE OF THE REPRESENTATIVES FROM NEW HAMPSHIRE, GEORGIA, MIS- SISSIPPI, AND MISSOURI. The principles involved in this celebrated contest are clearly set forth in the majority and minority reports which follow. The House adopted neither report, but it refused to unseat any representative elected by general ticket in the four States mentioned, IN THE HOUSE OF EEPEESENTATIVES, March 15, 1842. Mr. Douglas, from the Committee on Elections, made the following report : The Committee of Elections, having had 'under consideration the subjects em- braced in the following resolution of the House : "Resolved, That the Committee of Elections be directed to examine and report upon the certificates of election or other credentials of the members returned to serve in this house , and that they inquire and report whether the several members of this house have been elected in conformity with the Constitution and laws," submit the following report : The second section of the first article of the Constitution- provides that the representatives shall be apportioned among the several States according to their 48 CONTESTED ELECTION CASES IN CONGRESS. respective numbers ; and that an actual enumeration shall be made at' regular periods of ten years, in such manner as Congress shall by law direct. The first section of "An act for the apportionment of representatives among the several States, according to the Bixth census," approved June 25, 1842, makes the apportionment directed by the Constitution. It is a full and complete exercise of the power, and exhausts the entire authority vested in Congress by the Con- stitution in regard to the apportionment of representatives among the several States. The second section of the act claims to derive its validity from another portion of the Constitution relating to a different subject, and having no appro- priate and legitimate connexion with the apportionment of representation. Whilst the first section is the execution of the power to apportion the repre- sentatives among the States, the second is supposed to be a partial execution of the power to prescribe the times, places, and manner of holding elections. Not- withstanding the different and distinct character of the two subjects, Congress deemed it advisable, for purposes of convenience, to embrace both in separate sections of the same act. No principle is better settled than that one portion of an enactment may be constitutional and valid, and the residue unconstitutional and void. To the constitutionality and validity of the first section of the act under consideration no objections have been made. The second section is in the words following : And he it further enacted. That, in each case where a State is entitled to more than one repre- sentative, the number to which each State shall be entitled, under this apportionment, shall be elected by districts composed of contiguous territory, equal in number to the number of representatives to which said State shall be entitled — no one district electing more than one representative. The legislatures of Maine, Massachusetts, Rhode Island, Connecticut, Ver- mont, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Alabama, Louisiana, Tennessee, Kentucky, Ohio, Indiana, Illinois, and Michigan, divided their respective States into as many districts as they were entitled to representatives, and made provisions for the election of one member of Congress in each district ; the States of Delaware and Arkansas were entitled to but one representative each, and, of course, constituted districts of themselves, without further legislation. In each of the States enumerated, the elections were held in conformity with the State laws, and the members now occupying seats upon this floor have presented satisfactory credentials, in the usual form, of their elections respectively. No question arises, therefore, as to the legality and validity of their elections, except the two contested cases from Virginia, in each of which a special report will be made in due time. In the State of Maryland, no elections for representatives to Congress have been held. The four remaining States present entirely a different case, which requires the most anxious and deliberate consideration. The legislatures of New Hampshire, Georgia, Mississippi, and Missouri, many years ago, provided for the election of as many members of Congress as they should be entitled to, respectively, by general ticket, and have continued that plan until the present time. Consider- ing themselves under no constitutional obligation to alter their election laws, the constitutionality and validity of which having so often been recognized and sanctioned by Congress and the country, and never questioned, they deemed it unwise and injudicious to change a system which was adapted to their condi- tion and convenience, and had so long received the approbation of their people. Indeed, some of these States could not have conformed to the second section of the apportionment act without incurring the expense and trouble of special ses- sions of their legislatures ; for the reason that, by virtue of their constitutions, no regular sessions of their legislatures could be held between the time of the passage of the apportionment act and the period provided by the existing laws for holding their congressional elections. All the members from those States have been elected in strict compliance with the laws of their respective States, CONTESTED ELECTION CASES IN CONGRESS. 49 and according to the mode adopted in many of the States for the election of representatives to the first Congress which assembled under the Constitution, and which has prevailed in the election of members from some of the States in every succeeding Congress, including the present. It is apparent, therefore, that the second section of the apportionment act is an attempt, by the introduction of a new principle, to subvert the entire system of legislation adopted by several States of the Union, and to compel them to conform to certain rules established by Congress for their government. This new principle has produced a conflict between the laws under which the elec- tions have been held in these four States, and the second section of the appor- tionment act. The conflict is so clear, so palpable, so direct, that both cannot stand; one or the other must yield. Either the State laws and all the pro- ceedings under them are void, or the second section of the apportionment act is invalid and inoperative. The determination of a question so delicate, so grave and momentous in its consequences, imposes upon the committee and the House a high responsibility. The principles involved, and the force of the precedent o be established, give the subject an importance which elevates it far above the ordinary considerations affecting the right of twenty members to hold seats in this house. There is not only a conflict of law, but a conflict of right, of power, of sovereignty, between the federal government and four of the inde- pendent States of this Union. Surely these considerations will be sufficient to insure a fair and impartial decision of this question upon the true principles of the Constitution, preserving alike the just powers of the States and of the general government. The sixth article of the Constitution provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supjjeme law of the land, anything in the constitution or laws of any State to the con- trary notwithstanding. This brings us directly to the point at issue. Is the second section of the apportionment act a law, which has been made in pursu- ance of the Constitution of the United States, valid, operative, and binding upon the States i If the affirmative of this proposition can be successfully main- tained, the State laws must yield to the paramount authority, and the elections under them be declared void. But a position which annuls the laws of fo ur States of this Union, destroys their elections, and deprives them of their repre- sentation in the national councils, must not be assumed until its correctness be incontrovertibly established. The authority for adopting that section is sup- posed by its advocates to be derived from the fourth •section of the first article' of the Constitution of the United States, which is in these words : The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. It will be observed that the two clauses of this section differ materially in the tone in which they address the different governments. The one is commanded, and the other is permitted to act- The State legislatures shall prescribe the times, places, and manner of holding the elections ; Congress may make or alter such regulations. An imperative duty rests upon the legislatures, whilst a mere privilege is granted to Congress. In the performance of this duty, the legislatures are clothed with a wide discretion, upon which the Constitution im- poses no restraints. They may provide for elections by general ticket, or in districts ; for voting by ballot or viva voce ; for opening the polls at one place and on one day, or at different places and on different days. These, and all things pertaining to the times, places, and manner of holding elections, are con- fided to the wisdom and discretion of the several legislatures, to be performed in such manner as they shall deem most favorable to popular rights and just representation. The privilege allowed Congress of altering State regulations, or of making new ones, if not in terms, is certainly in spirit and design, depend- H. Mis. Doc. 57—4 50 CONTESTED ELECTION CASES IN CONGRESS. ent and contingent. If the legislatures of the States fail or refuse to act in the premises, or act in such a manner as will be subversive of the rights of the people and the principles of the Constitution, then this conservative power interposes, and, upon the principle of self-preservation, authorizes Congress to- do that which the State legislatures ought to have done. The history of the Constitution, and especially the section in question, shows conclusively that these were the considerations which induced the adoption of. that provision. When General Pinckney proposed in the convention which formed the Con- stitution that the representatives " should be elected in such manner as the legislatures of each State should direct," he urged, among other reasons in sup- port of his plan, "that this liberty would give more satisfaction, as the legisla- ture could then accommodate the mode to the convenience and opinions of the peojJle." After the substance of this provision had been fully and ably discussed, maturely considered, and unanimously adopted, the latter clause of the section conferring upon Congress the power to make regulations, or to alter those pre- scribed by the States, was agreed to, with an explanation at the time that "this was meant to give to the national legislature a power not only to alter the pro- visions of the States, but to make regulations in case the States should Jail or refuse altogether." In vindicating this provision, whilst urging upon the people of the United States the ratification of the Constitution, General Hamilton, in one of the numbers of the Federalist, placed its defence upon the same principle : " Its propriety rests upon the evidence of this plain proposition, that every govern- ment ought to contain in itself the means of its own preservation." Notwith- standing the imperative provision that the States shall prescribe the laws of election, and the mere permissive clause that Congress may make or alter them, and the construction placed upon this section at the time, by its authors, limiting and restricting, its exercise to the principle of self-preservation, yet this very clause created a more violent and formidable opposition to the adoption of the Constitution than all other portions of that instrument, and greatly haz- arded its final ratification by the requisite number of States. The conventions of the States of Virginia, Massachusetts, New Hampshire, New York, Rhode Island, and South Carolina, accompanied their ratifications with a solemn protest against the power of Congress over the elections. They proposed amendments to the Constitution, changing the obnoxious provision, and recorded on their journals perpetual instructions to their representatives in Congress to urge earnestly and zealously the adoption of those amendments, and to refrain from the exercise of any power inconsistent with the principles of the proposed amendments. The amendment and instructions of the people of Vir- ginia relating to this subject are as follows : The Congress shall not alter, modify, or interfere in the times, places, or manner of hold- ing elections for senators and representatives, or either of them, except when the legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same; and the convention do, in the name and behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provis- ions in the manner provided by the fifth article of the said Constitution ; and in all congress- ional laws to be passed in the mean time, to conform to the spirit of these amendments as far as the said Constitution will admit. The amendment and the instructions adopted by the convention of Massa- chusetts are as follows : The convention do, therefore, recommend that the following alterations and provisions be introduced into the said Constitution : That Congress do not exercise the powers vested in them by the fourth section of the first article, but in cases where a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the CONTESTED ELECTION CASES IN CONGRESS. 51 rights of the people to a free and equal representation in Congress, agreeably to the Consti- tution. And the convention do, in the name and in behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid shall have been considered agreeably to the fifth article of the Constitu- tion, to exert all their influence, and use all reasonable and legal methods, to obtain a ratifi- cation of the said alterations and provisions, in such manner as is provided in the said article. It is unnecessary to quote the instructions and amendments proposed by the ratifying conventions of the other States, as they are all of similar import. The State of North Carolina refused to ratify the Constitution, unless certain amend- ments proposed by her convention should be adopted ; one of which was as follows : That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legis latureof any State shall neglect, refuse, or be disabled by invasion or rebellion, to prescribe the same. Thus we find that seven of the thirteen States then composing the Union, being the majority of the whole number, solemnly protested against the au- thority of Congress to establish regulations concerning the mode of election, or to alter those prescribed by the States ; and that the Constitution was adopted with the understanding (and probably never would have been adopted but for the understanding) that it was never to be exerted except in the few specified cases. From this brief review of the history and contemporaneous exposition of this portion of the Constitution, it is evident that the convention which formed and the people who ratified that great charter of our liberties intended that the regulation of the times, places, and manner of holding the elections should' be left exclusively to the legislatures of the several States, subject to the condition, only, that Congress might alter the State regulations, or make new ones, in the event that the States should refuse to act in the premises, or should legislate in such a manner as would subvert the rights of the people to a free and fair rep- resentation. The question now to be determined, however, is one of power, and not the propriety of its exercise. Reference has been made to the proceedings of the forming and ratifying conventions, for the purpose of showing the reasons which induced the adoption of this clause, and the cases to which it was intended to be applied, rather than to negative the ultimate power of Congress to legislate upon the subject. If the power should be conceded to be' plenary and supreme, to prescribe the times, places, and mode; to establish the general ticket or district system; to adopt the viva voce or Ballot form of voting; and, in short, to make all such regulations as should be deemed necessary and proper to the full enjoyment of the elective franchise, still the question arises, whether the second section of the apportionment act is an exercise of this power in a manner contemplated by the Constitution, and binding upon the States. That act does not district the Slates, nor provide for an election by general ticket ; does not prescribe the mode of voting ; does not fix the times, places, or manner of holding elections ; does not make such alterations in the State laws, or enact new ones, which would enable the people to elect their represent- atives. It is entirely nugatory and inoperative without the aid of State legis- lation ; and even with that aid, it has no other force or virtue than that which they impart to it. True, it says that the elections shall be by districts, and that but one representative shall be elected in each district ; but how, when, and where the elections are to be held are not provided. These things are all left to the legislatures of the different States ; and if those legislatures had not passed the necessary and appropriate laws, no elections could have taken place. All the elections which have occurred since the passage of this act have been held under the authority and in pursuance of the provisions of the State laws. 52 CONTESTED ELECTION CASES IN CONGRESS Every member on this floor is here by virtue of an election held under the authority of the laws of his own State, or he has no legal warrant to aseat in this house. No elections have been held, and none could be held, by virtue of the second section of the apportionment act ; for it prescribes no times, places, or mode of holding the elections. It may be said — and, indeed, has been strenuously urged — that by apportioning the representatives among the several States, and declaring that they shall be elected in districts, Congress has vir- tually instructed the State legislatures to carry its mandates into effect, and to enact laws regulating elections in pursuance thereof. But whence does Uon- gress derive its authority to instruct the State legislatures in respect to the man- ner in which they shall perform the duties imposed upon them by the Consti- tution ? We have_ searched the Constitution in vain for such a power. The fourth section of the first article certainly does not confer it. That section only vests the power of legislation on this subject primarily in the several legisla- tures, and ultimately in Congress. The power of the States, in this respect, is as absolute and supreme as that of Congress, subject to the proviso that Con- gress may change or suspend their action, by substituting its own in lieu thereof. The right to change State laws, or to enact others which shall suspend them, does not imply the right to compel the State legislatures to make such changes or new enactments. Whatever power the legislatures possess over elections, they derive fr«m the Constitution, and not from the laws of the United States. Congress has no more authority to direct the form of State legislation than the States have to dictate to Congress- its rule of action. Each is supreme within the sphere of its own peculiar duties ; clothed with the power of legislation, and a discretion as to the manner in which it shall be exercised, with which the , other cannot interfere by ordering it to be exercised in a different manner. The Constitution contains no grant of power to Congress to superintend and control and direct the legislation of the States. This is not among the enumerated powers, nor can it be implied as necessary and proper to carry them into effect. Congress is invested with authority, coextensive with its power of legislation, to make provision for the execution of its own laws, in its own way, without calling upon the States to come to its aid. Hence there can be no pretext, founded on necessity and propriety, for deriving, by vague implication from some unknown source, this extraordinary power of commanding the States what they shall and what they shall not do. This assumption, if permitted by gen- eral acquiescence to ripen into the force of constitutional right, and become engrafted upon the settled policy of the government, would practically subvert the principles of the Constitution, and revive those of the old confederation. The great radical evil in the articles of confederation, which led to the adop- tion of the present Constitution, was the constant collisions between the federal and State governments, produced by the laws of the former operating upon the latter in their corporate and sovereign capacities, instead of binding the people individually. The consequence was, that, whenever Congress passed laws requiring the States to furnish their quotas of men, munitions of war, or revenue, or to perform any other act necessary to the defence of the country or the ex- istence of the government, those laws could not be executed — were inoperative — a mere dead letter upon the statute-book, until the several legislatures assembled and gave theni life by enacting State laws to carry them into effect. If the laws of the confederation were supposed to be unjust to a particular portion of country, or to operate unequally and oppressively upon particular States, such States refused to make provision for their execution, and thus suspended their operation. Upon such refusal, there was no more power to coerce obedience than there is in the case now under consideration ; and the government found itself in the humiliating condition of being without the ability or means of enforcing its own enactments. In this connexion we invite the attention to the following passage in the Federalist, illustrating the practical evils of this ex- CONTESTED ELECTION CASES IN CONGRESS. . 53 ploded theory, which is proposed to be resuscitated in the second section of the apportionment act : In our case the concurrence of thirteen distinct sovereign wills is requisite, under the con- federation, to complete the execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed ;_ the delinquencies of the States have, step by step, matured themselves to an ex- treme, which has at length arrested all the wheels oi the national government, and brought them to an awful stand. Congress at this time scarcely possesses means of keeping up the forms of administration till the States can have time to agree upon a more substantial lubsti- tute for the present shadow of a federal government. To remedy these perilous evils, and to give force, vigor, and vitality to the government, the whole system was changed in the formation of the Constitu- tion by distinctly separating the powers of the federal and State governments — making each supreme in its appropriate sphere, and giving the former as well as the latter the power of executing its own laws, by making them operate upon the people directly and individually without the intervention of State legisla- tures. Other valuable improvements were incorporated into the new system, calculated to make it more harmonious , and perfect in its operation ; but all resting upon that grand fundamental principle, in the absence of which experience has shown that the forms of the government could not be maintained, nor the Union pre- served. There are cases provided for in the Constitution in which the power of legisla- tion is, to some extent, concurrent, or where the laws of the States may be superseded by those of the Union. But we apprehend no instance can be found in which either may direct the legislative discretion of the other, and require enactments to be made in servile obedience to certain prescribed forms. Congress possesses the power under the Constitution " to establish uniform laws on the subject of bankruptcies throughout the United States," and may exercise it, or not, in its discretion. The Supreme Court of the United States has repeatedly decided, however, that this power is so far concurrent that, in the absence of any legislation upon the subject by Congress, the States may enact bankrupt laws, in such form and with such provisions as they shall deem just and proper, subject to the constitutional restrictions that they shall not im- pair the obligation of contracts. Notwithstanding the right of the States to legislate upon this subject, it is clear and undoubted that Congress may at any time resume its authority, and suspend the operation of the State laws by the enactment of a general bankrupt law which shall be uniform throughout the Union in pursuance to the Constitution. Numerous other cases may be cited, in which a similar concurrent power is vested in the two governments, with a resulting authority in Congress to supersede the State legislation by the substi- tution of its own. But will it be seriously contended for a moment that because the general government may suspend the State laws in these cases, it may there- fore order the legislatures to enact laws upon the subject of bankruptcies in accordance with certain arbitrary rules established by Congress ? The sound- ness of this principle may be tested by supposing that Congress, instead of passing the late bankrupt law, had contented itself with a simple declaration similar to the second- section of the apportionment act — that all laws upon the subject of bankruptcies should be uniform in each State of the Union; that persons might be discharged from the payment of their just debts, upon their own application, without the consent of their creditors, upon the surrender of all their property, except so much as the court should be pleased to allow them to retain, not exceeding three hundred dollars ; and that no man should be released from his obligations under any law which did not conform to these abstract principles. Would these rules be valid, and impose upon the States the duty of changing their local legislation so as to conform to the abstractions established 54 CONTESTED ELECTION CASES IN CONGRESS. by Congress ? .Can Congress refuse to exercise a concurrent power conferred by the Constitution, and, in the very act of refusal, prescribe the form of its exercise by the State legislatures 1 If this cannot be done in a case of bank- ruptcy, upon what principle is it that Congress may direct the legislative discre- tion of the States in regard to elections 1 But let us further test this assumed right by illustrations drawn from the same clause of the Constitution upon which the assumption is founded. That section vests the power of prescribing the timeg and places as well as the manner of holding the elections, primarily in the State legislatures, and ultimately in Congress. It is the duty of the former to act, and it is the privilege of the latter to suspend or alter their action. Con- gress has the same control over the time that it has over the manner, and we do not question its right to prescribe either or both under the Constitution. But suppose that Congress had inserted a section in the apportionment^act, de- claring that the elections of representatives should be held in all the States of the Union on one and the same day without naming the day. The same power which would authorize the Congress to declare that the members should be elected by districts, without forming or specifying the districts, would authorize the provision that they should be elected on the same day without designating the day. If the provision would be valid, and operative, and binding in the one case, it would be equally so in the other; and if the elections held in pur- suance of State laws, but in opposition to such a provision, would be void in the one case as they would also be void in the other. The two cases involve the same principle — the right of Congress to refuse to enact laws making provision for elections, and at the same time to establish rules by which the States shall be governed in their legislation. It is apparent that in regard to the time of holding elections such a rule would be inoperative and impracticable, if not ab- surd. All the States could never agree upon the same day ; one would fix one time, and others different times, each to suit their own convenience, and insist that all the others should conform to the time it had established. The members would be elected on as many different days as the States, in their discretion, should prescribe, each for itself; and, like all the members of the present Con- gress, would demand their seats by virtue of elections held in pursuance of the only laws which prescribe the times, places, and manner of holding the elections. In that case the members from one State would be elected in conformity to the rule established by Congress, and from all the other States in derogation of it. How would the House determine which State had fixed the right, and which the wrong day ; and whose representatives had been elected in pursu- ance of, and whose in opposition to, the uniform rule prescribed by Congress for the government of the State legislatures 1 What would be the decision of the House when that case arose? It could not reject all; for the members from some one State (nobody knows which) would have been elected in compliance with the rule. Still, all must be admitted or all rejected from the necessity of the case. A similar rule in regard to the places of holding elections, the mode of voting, or the form of making returns, would inevitably lead to the same prac- tical results. Hence we are brought irresistibly to the conclusion that a fair interpretation of this clause of the Constitution requires that Congress shall either designate the time, specify the places, and prescribe the manner, by law, or leave it to the wisdom and discretion of the several State legislatures. But it does not necessarily follow from this construction that Congress is compelled to exert all the power conferred in that section, or to refrain from the exercise of every portion of it. We insist upon no such principle. Congress may prescribe the times, the places, the manner, or either of them in its discre- tion. But if it attempts to control the time, it must designate the day by law ; and so with each other branch of the subject. We concede to Congress the right to provide by law for the election of mem CONTESTED ELECTION CASES IN CONGEESS. 55 bers of Congress in each State of the Union on a certain day, to be named in the act, without prescribing the places or manner of election. The power to designate the places or the manner without specifying the time is equally clear ; but whenever Congress assumes the power over one branch of the subject, its legislation must be complete to that extent, so as to execute itself without the intervention of the State legislatures, and the residue must be, left to the States to be exercised according to their discretion under the Constitution. So much of the power as shall not be embraced in the legislation of Congress, the Con- stitution makes it the imperative duty of the States to carry into effect, and constitutes them the sole and exclusive judges of the mode and means best adapted to the end without the interference or control of Congress. This view of the subject is strengthened and confirmed by the uniform prac- tice of the government from the time of the adoption of the Constitution to the passage of the act under consideration, a little more than a year ago. If the doctrine contended for in the second section of that act be correct, it is a remarkable fact that, during the whole period of our constitutional history, Congress has never exercised, or claimed the right to exercise, the power of directing the form of State legislation. It is said that, in the exercise of doubtful powers under the Constitution, the safest rule of construction is to be found in the practical exposition of the government itself, in all its various branches and departments where the practice has been uniform, and the acquiescence of the people general. Indeed, it has been judicially determined by the highest tribunal in the land that in such a case the practice establishes the construction so firmly and inflexibly that the court will not consider the question open for discussion or inquiry. If this rule should be deemed sound and incontroverti- ble, with what irresistible force does it apply to a case where the practice of the two governments has been uniform — : the one affirming, the other conceding, by every act of legislation, the correctness of this principle ; and where the people have yielded a universal acquiescence, without a murmur or remonstrance, and have sanctioned it at the polls ,as often as the period of election has re- curred. The resolution of the House, in obedience to which we are now acting, does not authorize or permit us to go into an examination of the expediency, pro- priety, or relative merits of the general ticket or district systems, or the policy of any other matter connected with the regulation of the times, places, and manner of holding elections. The Constitution provides that " each house shall be the judge of the elections, returns, and qualifications of its own mem- bers;" and the instructions of the House confine our inquiries within these limits. We therefore submit the following resolutions, and recommend their adoption, by the House : Resolved, That the second section of "An act for the apportionment of representatives among the several States, according to the sixth census," approved June 25, 1842, is not a law made in pursuance of the Constitution of the United States, and valid, operative, and bind- ing upon the States. Resolved, That all the members of this House (excepting the two contested cases from Virginia, upon which no opinion is herebj expressed) have been elected in conformity with the Constitution and laws, and are entitled to their seats in this House. January 24, 1844. Mr. GrARKETT Davis, from the minority of the Committee of Elections, made the following report : The Committee of Elections having been ordered by the House " to examine and report upon the certificates of election, or other credentials, of the members returned to serve in this House, and to inquire and report whether the several 56 CONTESTED ELECTION CASES IN CONGRESS. members of this House have been elected in conformity with the Constitution and law," have examined and considered the matter with which they were charged. The undersigned, as a minority of said committee, ask leave to report for themselves : That they concur in so much of the report of the majority as represents the elections and returns of the members of the House from the States of Maine, Massachusetts, Rhode Island, Connecticut, Vermont, New York, New Jersey, Pennsylvania, Delaware, Virginia, (except two contested seats,) North Carolina, South Carolina, Kentucky, Tennessee, Ohio, Louisiana, In- diana, Illinois, Alabama, and Arkansas, to be constitutional and legal ; but the elections in the States of New Hampshire, Georgia, Mississippi, and Missouri, in the judgment of the undersigned, are illegal and void, and the members of the House of Representatives returned from those States are not entitled to hold their seats. We will proceed to give some of the reasons which have brought us to this conclusion. The 2d section of " An act for the apportionment of representatives among the several States according to the sixth census," provides " that in every case where a State is entitled to more than one representative, the number to which each State shall be entitled under this apportionment shall ;be elected by dis- tricts composed of contiguous territory, equal in number to the number of repre- sentatives to which said State may be entitled — no one district electing more than one representative." The authority under which Congress made this provision is in the 4th section of article 1 of the Constitution, in these words : " The times, places, and manner of holding elections for senators and repre- sentatives shall be prescribed in each State by the legislature thereof ; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators." The second clause of article C reads : " This Constitution, and the laws of the United States which shall be made in pur- suance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." When the law of Congress passed, New Hampshire, New Jersey, Alabama, Georgia, Mississippi, and Missouri had election laws requiring their representatives respectively to be elected by general ticket. New Jersey and Alabama conformed to the law of Congress by modifying their laws, and electing their representatives by single districts ; but the other States have adhered to the general ticket, and held their elections in opposition to the law of Congress. The elections of New Hampshire, Georgia, Mississippi, and Missouri must consequently be void, unless the law of Con- gress is unconstitutional, or from some other cause is inoperative. The Constitution of the United States forms a government complete in itself. It derives none of its powers from the State governments, but it emanates wholly from a higher source — the people of the United States acting by States ; and to conduct its operations, its founders instituted its own agents. The legis- latures and governors of the States are invested with a few of its powers ; but, in the execution of such powers, those State functionaries are as much the agents of the general government as Congress and the President are in the fulfilment of their appropriate duties. No branch or officer of the State governments can perform any act whatever in the administration of the government of the United States but by virtue of, and in strict conformity to, some express provision of its Constitution. The power of the State legislatures to pass laws to regulate the election of senators and representatives in Congress, and of the governors -of the States to fill pro tempore vacancies in the Senate, is derived primarily, wholly, and exclusively from the federal Constitution ; and, considered simply in the performance of those acts, they are not agents of the State governments, but are organs of the government of the United States. In depositing these powers, they are referred to as legislatures and governors of the States, not to CONTESTED ELECTION CASES IN CONGKESS. 57 obtain any necessary or additional authority to the acts which the Constitution requires them to perform, but only to verify the persons with whom it intrusts certain powers, which could as well have been conferred upon any other officers, State or federal, with precisely the same sanctions in their execution. In testing the validity of any laws of the States relating to the election of repre- sentatives in Congress, and those elections also, we are to look only to the Constitution of the United States. Among the fundamental provisions of that instrument are : " The House of Representatives shall be composed of members elected every second year by the people of the several States," &c; and " The Senate of the United States shall be composed of two senators from each State, chosen by the legislatures thereof for six years," &c. It has been lately assumed that the clause relating to the House of Representatives establishes the general ticket as the mode by which its members are to be elected ; and this strange position it has been attempted to enforce by a more strange argument, deduced from the one con- cerning senators. The plain object of these two provisions is to establish the body of electors of the two houses, and not to prescribe the manner of choosing their members. But the argument is this : that the members of the State legis- latures cannot be divided into two classes, and the election of a senator be assigned to each ; and as the people of the States are to elect their representa- tives, they cannot be divided into districts, and those residing in a district be restricted to vote for a single representative* but all have the right to vote for all the representatives of the State. If such reasoning be entitled to a serious answer, it may be said that senators are not to be chosen by the members of the State legislatures, but by the legislatures ; and the body of the two houses must be convened and organized in general assembly to constitute a legislature. On the other hand, representatives are to be elected, not by the States, but by the people of the States ; and these phrases are to be received as they were universally understood when the Constitution was formed ; and the right created by them may be exercised in the form in which ever since, until the present time, it has been recognized to exist by all. The people of the States, respectively, then elected, as they now do, the most numerous branch of th'eir legislatures ; yet the whole people never voted for all the members of which it consisted, nor, indeed, for as many candidates. The position that the House of Representatives must be chosen by all the people of the several States, would prove too much for the purposes of its advocates. If the mode of electing representatives is to be deduced from this clause of the Constitution, it estab- lishes one much beyond the general ticket — it results, inevitably, that all the people of a State must not only vote for as many persons as it may be entitled to have representatives, but each representative must be chosen by the whole people. A majority, barely more numerous than the minority, voting by general ticket for as many persons as the number of representatives of a State, would not be all the people of such State voting for, much less choosing all her repre- sentatives. The absurdity of the argument would not stop here. All the people of every State would have the right — yea, would be bound — to choose "the House of Representatives ; that is, the entire aggregate of representatives from all the States ; and a constitutional house could not be differently formed. There would yet be other difficulties, some of which could not be surmounted. Every voter would be required to distribute his suffrage among the States to as many individuals of each as they would be entitled severally to representa- tives. That every man voting in any State would be bound to vote for every State, is the necessary sequence of this argument, notwithstanding the same clause of the Constitution provides further, " the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature;" and these qualifications, by the different State constitutions, are made various and conflicting. But the single office of this provision of the 58 CONTESTED ELECTION CASES IN CONGRESS. Constitution is to ordain and to describe the body of electors by which the House of Eepresentatives is to be chosen ; and a law distributing representa- tion among the people of the States, by single districts, would not infringe their constitutional right of suffrage. This position is made immovable by precedent and authority. Six of the original States established single districts for the election of their representatives to the first Congress ; a few years after, we see the same equitable rule governing the elections of three-fourths ; and about the same proportion have ever since adhered to it. No member of the convention which formed the Constitution, no cotemporary exposition of it, ever even inti- mated an opinion that the general ticket was the only constitutional mode of electing representatives. That is one of the new-born dogmas of the day, which cannot abide the test of either reason or authority. The 4th section, before quoted, in these words, "The times, places, and man- ner of holding elections s for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators," is the only provision in the Constitution which expressly establishes and invests any authority to legislate upon the subject of the election of representatives and senators ; and if it do not confer the power to determine whether the members of this House shall be elected by districts or by general ticket, then the State legislatures have no jurisdiction over that part of the matter; and they have continuously, from the origin of the government, but without question, usurped it. But the language employed is comprehensive, and does give, as was intend- ed, both to the State legislatures and Congress, ample authority over this sub- ject. If it were true, as has been contended, that the power to regulate "the manner of holding elections " does not comprehend that of establishing that they shall take place by districts, or general ticket, how have the State legislatures, at their pleasure, set up the one mode or the other? The Constitution will be searched in vain for any other warrant to them. It will not be seriously con- tended that the States have an implied power to conduct this or any other oper- ation of the general government. The implied powers result from the express ; and the State legislatures are invested with no express power, from which this im- portant implied one will inure to them. It is strictly of a legislative character. The Constitution provides that "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution " the powers expressly enumerated and conferred upon it, "and all other powers vested by it in the govern- ment of the United States, or in any officer or department thereof." If this first clause of the 4th section of article 1 does not give, sub modo, both to the State legislatures and to Congress the authority to direct that the members of this Housb shall be elected by districts, or by general ticket, then that regulation belongs to Congress exclusively, as an implied power. In giving this Construction of the constitution, we but conform to that from which there was no dissent when it was formed and adopted by the States. Mr. Madison, in his speech in convention, when this clause was under consideration, says: " This view of the question seems to decide that the legislatures of the States ought not to have the uncontrolled right of regulating the times, places, and manner or holding elections. These were words of great latitude. It was impossible to foresee all the abuse that might be made of the discretionary power. Whether the elections should be by ballot or viva voce; whether the elec- tors should assemble at this place or at that place ; should be divided into dis- tricts, or all meet at one place; should all vote for all the representatives, or all in a district vote for a member allotted to that district ; — these, and many other points, would depend upon the legislature, and might materially affect the appoint- ments." "It seems to be as improper in principle, though it might be less inconvenient in 'practice, to give to the State legislatures this great authority over CONTESTED ELECTION CASES IN CONGRESS. 59 the elections of the people in the general legislature, as it would be to give to the latter a like power over the election of their representatives in the State le- gislatures." Mr. Hamilton devoted three numbers of the Federalist to this provision of the Constitution; and in his luminous exposition of it are found these passages : " They have submitted the regulations of elections of the federal government, in the first, instance, to the local administrations ; which in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory. But they have reserved to the national authority a right to interpose whenever extraordinary circumstances might render that interposition necessary to its safety." "If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election." "But there remains a positive advantage which will accrue from this disposition, and which could not as well have been obtained from any other ; I allude to*the circumstance of uniformity in the time of elections for the federal House of Representatives." Mr. Hamilton, in the convention of the State of New York, also, which adopted the Constitution, held this strong and precise language : " The natural and proper mode of holding elections will be to divide the States into districts, in proportion to the number to be elected. This State will, consequently, at first be divided into six ; one man from each district will probably possess all the knowledge gentlemen can desire." Patrick Henry had the same understanding of the nature and scope of this power. In a speech in the convention of Virginia, he said : " Congress is to have a discretionary control over the time, place, and manner of holding elections. The representatives are to be elected, consequently, when and where they please. As to time and place, gentlemen have attempted to obviate the ob- jection, by saying that the time is to happen once in two years, and that the place is to be within a particular district, or in the respective counties. But how will they obviate the danger of referring the manner of election to Con- gress V " The power over the manner admits the most dangerous latitude ; they may modify it as they please." This clause attracted much attention, and received deliberate consideration in most of the conventions of the States ; and the matured and collective action of a majority of them, embracing then all the largest members of the confederacy, resulted in their severally recommending a modification of the power with which it invested Congress, to be adopted as part of the Constitution. That proposed by Bhode Island is in these words : " That Congress shall not alter, modify, • or interfere in the times, places, and manner of holding elections for senators and representatives, or either of them, except when the legislature of any State shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same ; or in case when the provision made by the State is so imperfect as that no consequent election is had, and then only until the legislature of such State shall make provision in the premises." Massachusetts recommended an amendment in these words : " That Congress do not exercise the powers vested in them by the fourth section of the first arti- cle, but in cases when a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the peo- ple to a free and equal representation in Congress, agreeably to the Constitution." Pennsylvania presented her modification of this provision thus : " That Congress shall not have power to make or alter regulations concerning the time, place, and manner of electing senators and representatives, except in case of neglect or refusal by the States to make regulations for the purpose; and then only for such time as such neglect or refusal shall continue." 60 CONTESTED ELECTION CASES IN CONGKESS. The States of Virginia and North Carolina each proposed to modify this clause as follows : " That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislatures of any State shall neglect, refuse, or be disabled by invasion or rebellion, to prescribe the same." The amendment proposed by New Hampshire reads : " That Congress do not exercise the powers vested in them by the fourth section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation to Congress ; nor shall Congress in any case make regulations contrary to a free and equal representation." South Carolina, also, presented a modification in these terms : " And whereas it is essential to the preservation of the rights reserved to the several States, and the freedom of the people, under the operations of a general government, that the right of prescribing the manner, time, and places of holding the elections to the federal legislature should be forever inseparably annexed to the sov- ereignty of the several States, tfiis convention doth declare that the same ought to remain, to all posterity, a perpetual and fundamental right in the local, exclu- sive of the interference of the general government, except in cases where the legislatures of the States shall refuse or neglect to perform and fulfil the same, according to the tenor of the said Constitution." None of these proposed amendments were incorporated into the Constitution ; and this fourth section was permitted to continue just as the members of the con- vention formed it, and as Madison, Hamilton, and Henry expounded it. All the power which it bestowed upon Congress remains ; the jealous apprehensions with which the State conventions regard it are gone with the other illusions of the day. But the unambiguous language in which it is expressed; the concurring understanding of its nature and extent, by all the great men who composed the conventions which framed and adopted the Constitution, and the restrictions to., which seven of those conventions proposed to subject it, give a key for its clear and full analysis. It confers all necessary authority over the subject, by the terms " to regulate the times, places, and manner of holding elections of senators and representatives." It gives to the legislatures of the States and to Congress, both, the power to make these regulations; and to Congress, also, the further dis- tinct and important power to alter at any time such regulations as the States may make. It commands the legislatures of the States to execute the power with which they are invested ; but it confides to Congress the discretion to exercise, or not, either of the powers intrusted to it, at all times. No legislation of the States can prevent Congress from acting on this subject, either in the form of making these regulations, or altering those of the State legislatures ; nor can the States qualify or circumscribe that action in the one mode or the other, what-" ever it may be. But Congress, by executing its power to make these regulations, may exclude, and wholly put an end to, the jurisdiction of the State legislatures ; or, in exercising its other power, to alter the State regulations to any extent, it may allow that jurisdiction to operate within as large or small limits as it may adjudge to be proper ; or it may leave to these legislatures the exercise of all power over the subject, by itself abstaining from all legislation relating to it. But when Congress does legislate, either to make these regulations, or to alter such as the State legislatures may have prescribed, just so far as it does act, its authority is absolute, paramount, and exclusive. This character would be im- parted to its action by the 2d clause of the 6th article, before introduced : " This Constitution, and all laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land," &c. In addition, the discretionary power with which Congress is invested to make these regulations, or to supervise and alter those of the State legislatures at all times, stamps its legislation in the premises with an overruling supremacy. CONTESTED ELECTION CASES IN CONGRESS. 61 But, the main question in deciding the right of the representatives from New Hampshire, Georgia, Mississippi, and Missouri, results from the power of Con- gress to alter these election regulations of the State legislatures ; and that ques- tion is : Does the law under consideration alter those regulations ? " To alter" is a term of large meaning, and, in its application to this subject, will include any variation in substance whatever. It imports a greater power than any- other term, except " to make" or its synonyme. Whatever the change — whether by adding to, striking from, or modifying — it is an alteration. The State legis- latures have an implied power to alter their election regulations, but the Con- stitution gives to Congress the express power to alter those same State regula- tions ; and as the express power of Congress is as extensive as the implied power of the State legislatures, any alterations which they can make in their regulations, whether of time, or place, or manner, Congress may at any time make with precisely the same effect ; for it would be preposterous to assume that an alteration made by the State legislatures would be valid and operative, but being made by Congress, though in the same terms, is futile and void. Some of the States have passed laws regulating their election of senators ; others have not; and yet the constitutionality of the regulations of the latter States for holding their election of representatives has not been, and cannot be questioned. Such States as have no regulations by law for their senatorial elections may make them also : so Congress could pass a law regulating the election of senators generally ; for that would be an alteration of the election regulations of some of the States, by adding to them. Congress could thus estab- lish uniformity in the mode of electing senators, by enacting a law requiring both branches of the State legislatures to choose by their aggregate vote, and might confine its action to that, or any other particular regulation for the election of senators. That principle has generally prevailed in senatorial elections ; and, in consequence of different parties having frequently the ascendency in the two ^houses of many of the State legislatures, and the difficulty and delay in choos- ing senators, it may become necessary for Congress to embody this principle into the election regulations, to secure the uninterrupted representation of the States in the Senate. The State legislatures might alter their existing regulations relating to time, or place, or manner, confining their action to either one ; and leaving intact, and in full force and effect, all relating to the other two ; and a similar alteration, made by a law of Congress, would have the identical same operation. The State of Kentucky elects her representatives on the first Monday in every August before the first session of each Congress, as now fixed by law ; and she has all needful regulations of place and manner. If her legislature, now in session, were to pass a law with the single provision that, hereafter, her elections should take place the first Monday in October next before the beginning of each term of Congress, it would surely make an alteration in her election regulations in point of time ; and her subsequent elections, as of course, would be held accord- ingly. All the States have their complete regulations of time, place, and man- ner ; but in many of the States the time is variant. If Congress were now to pass a law providing merely that the election of representatives in all the States should be held on the first Monday in every August before the beginning of each congressional term, it would alter the laws of every State whose time was in conflict ; and elections would take place on the day named by Congi ess, but in all other respects in pursuance of the regulations made by the State legisla- tures. In the case put, it is true every State would have all needful election regula- tions, with the residue of which, after changing time where it might clash, or any other feature whatever for which it might provide, the law of Congress would be incorporated, and make a harmonious and operative system. But the fact that the election regulations of the States had been so constructed that such 62 CONTESTED ELECTION CASES IN CONGRESS. a law of Congress could produce a corresponding change, and then amalgamate with them and form a complete and practicable system, could neither give nor add to the validity of the law ; nor would the absence of such a state of case render it less constitutional, or its obligation less perfect. If the converse proposition were true, the obligatory force of the laws of Congress upon this subject would not only depend upon the nature of their own provisions, but upon the contingency of the particular forms of the State regulations. This argument may be further enforced by illustration. Suppose Iowa should^ be admitted into the Union as a State during this Congress ; previous to which, Congress should pass a law establishing uniformity in the time of holding the' election of the members of the House. She, not then existing as a State, could have no regulations of time, or jlace, or manner, with which the law of Con- gress could commingle ; but who can doubt its potential force, and that it would operate upon her when she should come into being? Who will not admit that, if her legislature were to prescribe a different time, this particular regulation would be void, because of its conflict with the law of Congress ? But the young State, loyal to the Constitution, would, doubtless, respect the law of Congress, by omitting any regulation of time, and would prescribe all of place and manner that might be necessary, and then quietly elect her representatives on the same , day with every other State of the Union. The constitutionality of all laws depends upon their own provisions, and their own intrinsic effect ; and to decide that point, it is only 'necessary to compare the law with the Constitution. A law not in opposition to the Constitution, it is difficult to conceive to be an un- constitutional law, and yet, the act of Congress requiring elections of represent- atives to be made by single districts is resisted a3 au unconstitutional law, though admitted, at the same time, that it is not repugnant to, or inconsistent with, the Constitution. On the contrary, it is expressly conceded that Congress has the undoubted power to provide for the whole manner of holding such elec- tions ; and that if it had proceeded toarrange all the States into districts, and* to make all other necessary regulations of manner, the entire law to that extent would have been constitutional, binding, and operative. The objection is, not that Congress has exercised an unconstitutional power ; but that it has defect- ively executed a constitutional power, by not having done enough. The law cannot be disregarded, therefore, as unconstitutional; but whether it can be con- sidered as a nullity, and therefore having no obligation upon the State legisla- tures, is a different, but the true and only question. The opponents of the law prove that, of itself, it is inoperative — unavailable — cannot be executed without auxiliary State legislation, which Congress has no power to command their le- gislatures to furnish ; and argue, therefore, that the law is unconstitutional — is a nullity. This conclusion by no means follows from the premises ; and the assailants of the law artfully seek to try it by a spurious test — its own capa- bility of being executed. Whether proprio vigore it can be put into practical operation, is not the principle by which its obligation upon the State legislatures is to be determined ; it may want that property, and yet by no means be a nullity. The only touchstone by which this law of Congress can be tried is, whether it amounts to an alteration of the regulations of the manner of holding elections of representatives that have been prescribed by the State legislatures ; aud the affirmative of this proposition is so plainly true, that any denial of it would almost seem to be a subterfuge. This second section of the last appor- tionment act is to be considered precisely as though it had been passed by all the State legislatures themselves ; as any alteration of their own laws on this subject which they can make, Congress may at all times make. The State of Mississippi elects by general ticket. Were her legislature at its next session to pass a law with the single, provision, that for the future her elections of repre- sentatives should be by districts, each district electing but one representative, such a law would unquestionably alter, repeal her general ticket system, CONTESTED ELECTION CASES IN CONGRESS. 63 although it omitted, whether from wilfulness or inadvertence, to constitute the proper districts. , An election by general ticket would be against her existing law, and she would continue without representatives in Congress until her legis- lature should again convene, and remedy its defective legislation. Suppose, after passing the law, the house of representatives of Mississippi should pass a law dividing the State into single congressional districts, in which the senate should not concur, and it was to fail by disagreement of the two houses ; that state of things would not abstract anything from the effect of the first law, and the abrogation of the general ticket would still be complete. The law of Con- gress has just the same effect in all the States where the general ticket pre- vailed, as the law of Mississippi would have in that State. But let us present the argument, that this second section, providing for districts, not being in a form to be executed, is therefore a nullity, and of no effect, in another point of view. The 4th section of the Constitution — " The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof ; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators" — cannot be executed or put into practical operation without extensive legislation, State or national ; and nobody will contend that it is a nullity. Suppose the convention had extended this provision of the Constitution by adding these words : " but, for the election of representatives, each State entitled to more than one representative shall be divided into districts, and each district shall elect but one representative ;" would such a clause be a nullity, and not be obli- gatory on the State legislature 1 As a part of the Constitution, this second section would have to be conformed to by the State legislatures, all will admit ; and yet there it could of itself be no more executed than as a provision in a law of Congress. In both positions, it would require legislation either &n the part of the States, or of Congress, to give it practical effect. Because such a regula- tion standing alone could not be executed, does not, then, prove it to be a nullity. Why would the State legislatures be bound by it, and observe it as a clause in the Constitution ? Because it would be a part of the supreme law of the land, and haVe a paramount obligation. But it is a law of Congress, admitted by everybody to be made m pursuance of the Constitution, which declares that such laws also shall be the supreme law of the land ; and its obligation is paramount to all State authority and all State laws, and their legislatures are therefore bound to conform to it. The 1st section of the last apportionment act provides, " That from and after' the 3d day of March, 1843, the House of representatives shall be composed of members elected agreeably to a ratio of one representative for every seventy thousand six hundred and eighty persons in every State, and one additional representative for each having a fraction greater than one moiety of the said ratio, computed according to the rule prescribed by the Constitution of the United States ;" and the same section then proceeds to declare, by names and numbers, how many representatives each State shall elect. No person has impugned the constitutionality, validity, or obligation of this part of the law ; and yet, of itself, it is equally incapable of being executed as the second section. Both were framed with a view to, and both require, auxiliary State legislation to give them effect; and the one is just as mandatory upon the State legisla- tures as the other. Both are equally restrictive upon the discretion of those legislatures ; and they are under the same constitutional obligation to conform their legislation to the terms and provisions of each. Similar laws of Congress in relation to the House of representatives, and also to electors of the President, have been respected by the States for more than fifty years, and were never demurred to as being either a nullity, or in the nature of a mandamus upon their legislatures. All the State legislatures have co-operated in making effect- ive the first section of the law, by exactly squaring their legislation with it, 64 CONTESTED ELECTION CASES IN CONGEESS. even to the sanction of its novel principle of giving a representative to the frac- tion of a ratio. But the force of this analogy is attempted to be evaded, by assuming that all the authority of Congress over the ratio of representation is exhaused by this first section, and that it is a case of complete execution of constitutional power. The constitutionality of the previous laws of Congress apportioning representa- tion has never been doubted; but be that as it may, the wildest opponent of this law will not contend that it was competent for the State legislatures to refuse to pass laws necessary to carry into execution those apportionment acts, on the ground of their unconstitutionality. Nevertheless, when each of those laws passed, there were several States which had a fraction of population greater than one-half of the ratio ; and yet, until the last apportionment, no State was ever allowed a representative for such fraction. The power of Congress, then, over the ratio and representation in the House, was never before fully executed. The State legislatures cannot, therefore, take the ground that Congress has but partially executed its power in the passage of a law, to justify them in their refusal to perform a constitutional duty. But, besides, the argument of a partial or defective execution of power has * no application to the present case. The Constitution gives to Congress alter- native powers, and it is not required to execute either of them ; but whether it will exercise either, and the extent of its exercise of its power to alter the reg- ulations of the States, and the time when it will exercise the one or the other, are all confided by the Constitution to its sound discretion. At one session, Congress might alter the State laws as to the times of holding elections ; at another, it might in the same way regulate the places ; and at another the man- ner ; and all would be constitutional and obligatory. So Congress might now pass a law that, in all elections of representatives, the candidates receiving a plurality of votes cast should be duly elected ; the next Congress might declare that votes should be given by secret ballot, or viva voce ; and a succeeding Congress might regulate all the remaining particulars of manner ; and these laws would each be constitutional and valid. It is not necessary, then, to make a law constitutional, that the ^power of Congress be exhausted. The argument against this law, that it is a mandamus upon the State legislatures, which they are not bound to obey, and therefore it is inoperative, and consequently a nullity, would seem to result from an indistinct and confused perception both of the nature of the power of Congress, and the duty of the State legislatures in connexion with this subject. It is said with emphasis, but most untruly, that Congress cannot limit the discretion of the State legislatures, or prescribe the form of their legislation. Congress may, at any time, make all these regula- tions of time, place and manner, and thus exclude the State legislatures from all authority over the subject. It may at any time regulate place, and in that way limit the discretion of the legislatures, and prescribe the forms of their legislation to the time and manner. It may regulate time, or manner only ; or under the head of manner, it may declare the way in which votes shall be given ; or it may change, where it prevails, the majority principle to that of the plurality. In these, and other modes, Congress might restrict the discretion of the State legislatures, and hedge in the forms of their legislation, and its enact- ments would be constitutional and binding ; they would not be in the nature of mandamus, and the obligation of the State legislatures to prescribe all other necessary regulations would be imperative. • This power of Congress to alter the laws of the States is isolated. It is confined to their regulations of the times, places, and manner of holding con- gressional elections, and extends to no other class of their legislation ; but the authority of the States over this complex matter the Constitution makes subject at all times to the freest exercise on the part of Congress of its power to alter these State laws. When Congress acts, there are not two distinct and inde- CONTESTED ELECTION CASES IN CONGRESS. 65 pendent systems of legislation ; but, by the force of the Constitution, it becomes one both of blended jurisdiction and legislation; and any alteration it may make of the State laws has the identical effect it would have if made by the State legislature. The State legislatures, then, holding their power subordinate to this untrammelled authority to alter on the part of Congress, they must submit not only to the literal naked alteration itself, but to all legitimate consequences. When Congress makes any alteration whatever, the duty to be performed by each State legislature is the same it would haye been had the alteration been made by itself. The system is simple and harmonious. If Congress pass a law which, either in terms or effect, amounts to an alteration of the State regu- lations to its full extent, the latter, by operation of the Constitution, gives place, and the law of Congress is substituted. If this process leaves the mixed regu- lations complete and practicable, they go into operation and control future elec tions; but if others be necessary, it is the constitutional duty of the State legislatures to prescribe them. The law of Congress abolishes the general ticket wherever it had existence. The States, in the fulfilment of the general and absolute injunction of the Constitution upon them to prescribe all these regulations, subject to any and every alteration Congress may from time to time make, are bound to make such other regulations as they would if the act of Congress were the first section of their own law. The Constitution of the United States, (which every member of the State legislatures swears to support before he enters upon his duties,) and not the law of Congress, is the man- damus which, in silent but impressive language, perpetually holds all to the performance of this important duty. It is true the State legislatures may fold their arms and refuse to pass laws in aid of this provision of the law of Con- gress — as they may refuse to establish any regulations of time, or place, or manner ; but, because they may determine thus to disregard the Constitution, it surely forms no jurisdiction for their greater outrage of attempting to nullify a law of Congress. Another objection to tbjs law, and one much relied upon, is its vagueness. It is a principle of sound sense and universal application that a law so vague as to have no meaning, or to leave its meaning altogether doubtful, will have no obligatory force; and if this law of Congress be of that character it certainly is a nullity. We concede it must be so precise and intelligible as to inform the State legislatures what is its meaning, and thus enable them, by looking to the law alone, to perform their duty under it. This is all that reason would require; and to demand any more would be to qualify and to limit the power- of Congress to alter the regulations of the States when it is conferred in its utmost latitude; and if the legislatures have the right to shackle it with this qualification, they may with any others. The only and the very plain duty of the legislatures under this law is to .divide their States into single districts. The purpose of Congress to exclude the general ticket system, and to introduce in its stead the single district principle, is spoken in distinct language. If this section were a clause in the Constitution, it would be intelligible enough; it is less comprehensible, because it is a provision of the law of Congress. Were Congress to pass a law merely declaring that all elections of representatives should be held on the same day, it would want the requisite certainty; because the State legislatures, looking. to the law only, would not know what day to designate and in what form to pass their laws. The- same objection would exist to a law of Congress attempting to fix places without naming them. The vagueness and uncertainty in these laws, instead of producing uniformity, would cause only confusion and discrepancy in the legislation of twenty-six States of independent legislatures. But this much-mooted section is invulnera- ble to all such objections. < It is further objected to the exercise of this power that it has never before been attempted. Fractions of population below the ratio were never allowed a H. Miss. Doc. 57 5 66 CONTESTED ELECTION CASES IN CONGRESS. ■v representative until last Congress. Time nor place of holding elections has never been regulated by Congress ; but all concede that they may be. The party opposed to this law has presented to the consideration of this Congress a till to regulate the time of electing both representatives and electors of Presi- dent ; and yet this argument of forfeiture for non user would deprive Congress of all power over the time, place, and manner of congressional elections, and the time of choosing electors, as it has heretofore left the whole to exclusive State legislation. This argument is not entitled to be reasoned. Among the great variety of grounds upon which this law has been resisted, it is urged that in some of the States there was no session of the legislatures intervening its passage and the times of holding their elections at which the State could be districted. We cannot conceive how that matter can be brought to bear on the validity of the law. Its constitutionality and obligation are in no way connected with State laws on the subject, much less with the times of holding their elections ; and the law is to have its effect independent of all such considerations. But as an argument of inconvenience it has very little force. About half the States hold their elections during the year preceding the be- ginning of the congressional term ; the other States during the previous year. Congress could not at any time pass such a law, without causing some incon- venience to some of the States ; but the least amount would be produced by passing it at the first session. This law was enacted during the first session of the last Congress ; and between its passage and. the commencement of the present session, it is believed, there was not a State legislature which did not hold a session. It would then, in truth, have caused no inconvenience or additional expense to any of the States to have formed the proper districts ; the only con- sequence would have been, throwing their election of representatives from one year to the succeeding one. But if an extra session of the legislatures of two or three States had been rendered necessary, it is no more than what has often occurred in giving effect to the laws for apportioning representation. It is true that this section does not name the la\fe of any of the States, or in terms alter any of their provisions ; nor is it necessary for any effect that it should. Besides, this form is more respectful to the State authorities. The legislatures of some of the States incorporate into their laws regulating the election of representatives a general principle. Congress, possessing the same power as the legislatures to alter such laws, enacts that a different and incom- patible principle shall prevail ; and the constitutional provision immediately applies, and gives the latter an exclusive, overruling, and paramount authority. The alteration of the State law is as completely effected as if Congress had provided for it in express and precise terms — as if the State legislature itself had made the alteration. This is a common form of legislation. A law is in ex- istence, and another is passed with conflicting provisions ; it is a maxim "of universal law, that, so far as they are repugnant, the latter supersedes, repeals the former. A large proportion of the laws of all the United States are modified, amended, and repealed iu this manner ; the American people are taught it every day, both by legislative example and judicial recognition. The pending bill, before adverted to, to establish uniformity of time in the election of representatives and presidential electors, is properly enough in this same form ; but it cannot be executed of itself, if it shouM become a law, without auxiliary State legislation ; yet it would not be a nullity. It restricts the discretion of the State legislatures, and prescribes the form of, their laws, by excluding time ; and still it would not be in the nature of a mandamus. It, like the law providing for single districts, wojild be constitutional ; and the force of the Constitution, aided by the virtue and patriotism of the American people, would compel the requisite State legislation to make both effective. The wisdom and practical good sense with which the Constitution is so replete stand forth conspicuously from this section. The power to make these election CONTESTED ELECTION CASES IN CONGRESS. 67 regulations was conferred upon Congress, to provide for the exigence of any of the States refusing, or being unable, from any cause, to prescribe them ; and thus a security was established against the government coming to an end, for the want of a Congress constitutionally elected. But the State legislatures might (as many of them have) abuse this power. The general ticket has often been resorted to ; districts to elect two, three, and four members have been frequently formed ; and even the constituent parts of a single district have been changed — and all to give an undue advantage to the dominant faction in the different le- gislatures. The regulations of the States have ever been discordant, and some of them operating with flagrant injustice. This will be strongly exemplified by an existing case. Pennsylvania has elected by single district ; New Hamp- shire by general ticket. Pennsylvania, being the second largest State in the Union, has twenty-four representatives ; New Hampshire, being one of the small States, has but /four. The rule that prevails in Pennsylvania has divided, or nearly divided, her representation politically ; whilst that of New Hampshire has elected her entire delegation of the same party. The consequence is, that on nearly all the great political questions which divide the opinion of this nation, New Hampshire, probably, has four times, certainly two-fold, as much power, in the present House, as Pennsylvania. Such contrariety of State legislation upon this subject (disturbing the fundamental principle of equal representation) has existed from the adoption of the Constitution. Many States of diversified find antagonist interests and politics, and each having an independent legislature, would have always, in a greater or less degree, discrepant and unjust election regulations. The establishment of important principles (just, wise, and appli- cable to all of them, and securing the rights of all) is the character of the super- vision which Congress oughtto exercise over this State legislation. The minor features and the details should be left to the more accurate local information of the State legislatures. This complex power, thus to be distributed, would, doubt- less, secure its more convenient and acceptable, as well as its more just and proper execution, than if it' were given up wholly, either to the State legislatures or to Congress. That the convention expected it to be thus exercised, is proved by the authority of Mr. Madison. When the Constitution was before the con- vention of Virginia for its adoption, Mr. Monroe interrogated him concerning this clause thus : "He wished to know why Congress had ultimate control over the time, place, and manner of the election of representatives," &c. Mr. Madi- son responded upon this point : " It was thought that the regulations of time, place, and manner of electing representatives should be uniform throughout the continent. Some States might regulate the elections upon principles of equality, and others might regulate them otherwise." " It was found impossible to fix time, place, and manner of the election of representatives in the Constitu- tion. It was fouad necessary to leave the regulations of these, in the first place, to the State governments, as being the best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity, and to prevent its dissolution. And, considering the State governments and the general government as distinct bodies, acting in different and independent capacities for the people, it was thought that particular regu- lations should be submitted to the former, and the general regulations to the latter," &c. The undersigned think that the following propositions are clearly made out : That this law is not unconstitutional, because there is nothing in 1 it in opposi- tion to the Constitution ; that it is not void, in consequence of not being a full execution of the power of Congress, because the Constitution permits Congress to exercise so much of this power at all times as it may think proper; that it is not a nullity, because it is a clear, intelligible, and substantive alteration of the State laws, which Congress had the right to make ; and it plainly and distinctly, by its provisions, informs the State legislatures what they are to do to give it 68 CONTESTED ELECTION CASES IN CONGRESS. practical effect ; that the State legislatures are commanded by the Constitution, and bound by their oath to support it, to divide their States respectively into districts, or to prescribe any other needful regulations to give this law its effect ; and that the general-ticket regulation of New Hampshire, Georgia, Mississippi, and Missouri, and the election of their representatives, being in opposition to this law of Congress, which is a part of the supreme law of the land, are void and of no effect. , This law has received the. sanction of both houses of Congress, and 1 been approved by the Executive. In the forms of its enactment, as well as in its provisions, the Constitution has been strictly regarded. The question now is, not whether it should have passed, but, being a part of " the supreme law of the land," whether a branch of the power which made it will uphold it, or lend itself to aid certain States in its summary and unconstitutional overthrow. If the law were unwise — nay, mischievous — it would still be the stern duty of the House to do its part to enforce it ; and the only remedy would be its repeal. But, were its policy now in issue, it could be triumphantly maintained — yea, that the passage of such a law has been too long delayed. It is obvious that it is about as much as Congress should do in relation to manner ; and that the formation of districts, the appointment of officers, and other particular regula- tions of manner, were properly left to the State legislatures. It could be demon- strated that the election of representatives by single districts would secure a larger and more diffusive representation of the people than is attainable in any* other mode ; that, by the general ticket, six of the largest States would elect 119 members; and seven of the free States, 113 members of the present House — and thus but little more than one-half of their voters, forming about one-fourth of the freemen of the United States — would wield the popular branch of the government ; that the general ticket would give the selection of candidates, and thus the election in fact, into the hands of a few active, forward, and bold spirits, and the people would only have the privilege of ratifying their caucus decrees ; that this mode, in truth, does not give a representation of the people, but only of State majorities, and silences wholly the voice of all minorities, though in numbers barely distinguishable from the dominant majority ; that it would practically change the government, though its form and theory might continue, by making the popular branch, like the Senate, a representation of the States — unlike the Senate, too, as the States would not here have equal power, but in proportion to numbers, whereby a mere majority of the people 'of the State of New York would have more positive power than Delaware, Rhode Island, New Hampshire, Connecticut, Michigan, Arkansas, Louisiana, Missis- sippi, and Missouri, though in the last House her representation was so divided as to give her no mdre than Rhode Island on all political questions ; that, under the next ratio, six of the free States — Massachusetts, New York, Pennsylvania, Ohio, Indiana, and Illinois — forming a perfect cordon, in perpetual and increas- ing conflict with some of the institutions of the southern States, would unques- tionably have a majority of the House of Representatives ; and they might at any time dissolve the government by seceding from the House ; that the safety of the small and slaveholding States is in the prevalence of the single district principle, which would so distribute the representation of the large States among contending parties as practically and materially to reduce their strength ; and that the example of one or two of the large States, in adopting the general ticket, would certainly and speedily allure all the others from the division and weakness of districts, to the adoption of a system which would preserve. their indivisibility and strength — such a change having already taken place in the election of presidential electors. These great, manifold, and dangerous abuses, are not merely ideal. Some of them have occurred ; the others are in the course of events, without measures of vigorous precaution. This law of Congress, nflexibly executed, would be a measure of decided, if not complete efficiency. CONTESTED ELECTION CASES IN CONGEESS. 69 It is wiser, too, and inconceivably less difficult to prevent, than it is to correct great political evils. There has been seldom presented for the decision of any branch of the government a question of equal magnitude, or more abiding and permanent interest ; and it may be said, without exaggeration, that the nation is anxiously awaiting the decision. We could not contemplate the House of Representatives assaulting and declaMng a law of Congress to be void and of no effect without the most gloomy forebodings. The Case which would authorize such an interposition must be flagitious indeed ; but the American people might readily believe that the nulli- fication of this law by the present House may be portentous of many such assumed cases. If this great, wise, just, and sanitary measure is thus to be struck down, what power can stay the same arm, when, in the course of the successive rise and fall of parties, it may aim blows at other laws equally obnoxious to a daring, dominant, and unscrupulous faction of a day ? It is true the House is not the tribunal which is to pass on the validity of many laws ; but, with all the elements of opposition and resistance that perpetually exist to those the most wholesome, none can have their proper moral force, and all may be defied, when the popular branch of the law-making power desecrates itself by joining a league for their subversion. What a fearful opening would such a state of things make for able and reckless demagogues — for profligate and desperate factions 1 How distinctly would it mark the corruptions of poli- tics, the decay of national morals, and the impending dissolution of our institu- tions ! Our abiding trust is that the people will arouse, throw their betrayers from them as " the lion shakes the dew-drops from his mane," and snatch the government and country from this hopeless abyss. The minority of the committee offer the following resolutions as a substitute for that recommended by the majority of the committee : Resolved, That Messrs. Edmund Burke, John P. Hale, Moses Norris, jr., and John E. Eeding, sitting members of the House of Eepresentatives from the State of New Hampshire ; Messrs. Edward J. Black, Absalom H. Chappell, Howell Cobb, Hugh A. Haralson, John H. Lumpkin, Alexander H. Stephens, and William H. Stiles, sitting members from the State of Georgia ; Messrs. William H. Hammett, Eobert W. Eoberts, Jacob Thompson, and Tilghman M. Tucker, sitting members from the State of Mississippi ; and Messrs. Gustavus M. Bower, James B. Bowlin, James M. Hughes, John Jameson, and James H. Eelfe, sitting members from the State of Missouri, in the present Congress, not having been elected in pursuance of the Constitution and law, their seats, severally, are hereby declared to be vacant. Resolved, That the Speaker of this house transmit to the chief executive officer of the States of New Hampshire, Georgia, Mississippi, and Missouri, respectively, a copy of the preceding resolution. GAEEETT DAVIS. WILLOUGHBY NEWTON. EOBEET C. SCHENCK. The debate on this subject occupied a large part of the session. The report of the committee was not formally agreed to, but it was voted, by a decided majority, that each member elected by general ticket was entitled to his seat. The principles involved are fairly stated in the reports given, and it is unneces- sary to quote from the arguments made in the House. A full index to the entire debate will be found on page 16 of vol. 1, part 13, and page 3, part 2, vol. 13. Volume 13, parts 1 and 2, contains the entire debate. The votes upon the right of each member (elected under the general ticket system) will be found on pages 278, 279, 280, and 283, vol. 13, part 1. 70 CONTESTED ELECTION CASES IN CONFRESS, TWENTY-EIGHTH CONGRESS, FIRST SESSION. Goggi\ vs. Gilmer. The acts of proper officers acting within the sphere of their duties must be presumed to be correct unless shown- to be otherwise. There was no contest in the House upon this case. IN THE HOUSE OF REPRESENTATIVES. * , January 26, 1844. Mr. Elmer, from the Committee of Elections, made the following report : That the fifth congressional district of Virginia consists of the counties of Bedford, Amherst, Nelson, Albemarle, Orange, Madison, and Greene. The polls, it appears, were closed on the 27th day of April last (the day fixed by law for holding the election) at all the places of voting in the aforesaid counties, except at the court-house and Eobinson's precinct, two of the places of voting in'the county of Madison, and at Greene court-house, the only place of voting in the county of Greene, where the polls were kept open two days longer. At the close of the polls on the first day, it is now agreed by both parties that the state of the vote was as follows, viz : Gilmer. Goggin. Bedford 377 733 Amherst 383 350 Nelson 219 320 Albemarle 5S9 649 Orange 178 162 Madison 372 47. Greene 123 .54 2, 241 2, 315 The votes given on the second and third days of voting were j as follows, viz : Madison 84 8 Greene 36 18 2, 361 2, 341 Mr. Gilmer's majority of the votes polled was, therefore, twenty. Neither party complains that any illegal votes were received, except the votes of two persons who voted for Mr. Goggin in two different counties, and whose votes, therefore, should ority be counted once, leaving the majority of legal votes in favor of Mr. Gilmer to be twenty-two. It is insisted by Mr. Goggin, in his memorial presented to the House and referred to the committee, that the votes polled on the two last days of voting, in the counties of Madison and Greene, should not be counted, on the ground that there was no sufficient cause for the adjournment; and if there was, that there was no request made to adjourn by any candidate or his agent, and there- fore the adjournment was illegal. The law of Virginia on the subject of adjournment is as follows, viz': "If the electors who appear be so numerous that they cannot all be polled before sunsetting, or if, by rain, or rise of water-courses, many of the electors may have been hindered from attending, the sheriff, under-sheriff, or other officer conducting the election at the court-house, and the superintendents of any sepa- rate poll, if such cause shall exist at any separate poll for the adjournment thereof, may, and shall, by the request of any one or more of the candidates, or their agents, adjourn the proceedings on the poll until the next day, and from CONTESTED ELECTION CASES IN CONGKESS. 71 day to day for three days, (Sundays excluded,) giving public notice thereof at the door of the court-house," &c. This law, it will be perceived, declares that, if the specified causes of adjournment exist, the officer "may" adjourn; and that if a candidate or his agent request it, he "shall" adjourn. It appears that on the first day of the election it rained at the two places of voting before named in the county of Madison, and at the court-house in the county of Greene ; and that, many voters being absent, a majority of the super- intendents decided that there was sufficient cause for an adjournment, and did, accordingly, adjourn the polls, and keep them open two days longer. In doing so, they exercised, under the responsibility of their -oaths of office, a discretion confided to them by law. They made this decision, not upon the testimony of witnesses, or upon the opinions of others, but upon the evidence of their own senses. The law prescribes no particular quantity of rain, nor any specified number of absent voters, as necessary to authorize an adjournment. If it rained, and many voters were absent, the officers, from the very nature of the case, were compelled to determine whether the rain hindered them from attending, merely from appearances. Had it now clearly appeared that they were mistaken in this judgment, the committee do not think that their proceedings should be declared illegal and void, in the absence of all proof and of all complaint that they acted fraudulently. The adjournment produced no injury to any one, unless it be deemed an injury that persons legally entitled to vote were thereby afforded greater facilities for doing so. In the opinion of the committee, however, it is not. shown that the superintendents acted injudiciously; they did no more than was done by other superintendents, of different politics, in an adjoining county of another district. * As to the complaint that the adjournment was illegal, because not requested by Mr. Gilmer or his agent, the cotnmittee are of the ppinion that this proceeds upon a mistaken interpretation of the law. If, however, it should be admitted that a request was necessary, the result would be the same. It being a clear principle, that the acts of the proper officers, acting within the sphere of their duties, must be presumed to be correct unless shown to be otherwise, it is incum- bent on Mr. Goggin to prove, by competent evidence, that the adjournments were, in point of fact, made without the request of any candidate or his agent. This he failed to do. It does not appear who requested the adjournments in Madison county; and, although it is true that Mr. Gilmer stated that he did not, yet, for aught that appears, the candidate for the Virginia legislature, or his agents, may have made the request; in which case, the election being adjourned for him, would be duly open for the member of Congress. Nor can the com- mittee perceive any reason why any friend of Mr. Gilmer, present at the polls, might not take upon himself a voluntary agency in this matter, without a formal appointment as such. In regard to Greene county, it is immaterial whether the poll was properly adjourned there oi> not; because if Mr. Gilmer's majority during the two last days of voting there be discarded, still he will have a majority of the votes of the district. In a written argument, presented by Mr. Goggin to the committee, he earn- estly insisted that, the polls were not legally adjourned at the Madison and Greene court-houses, because the adjournments were made by the superin- tendents, and not by the sheriff or his deputy. According to the law of 1831; quoted by him, it was the duty of the sheriffs to adjourn the polls at the court- houses, because then there were no -superintendents at those places. But, by acts passed in 1834 and 1842, five superintendents are to be appointed at the. court-houses, who are " to perform the same duties that are required of the persons appointed to superintend the taking of the separate polls." Those duties include the duty of adjourning the poll, it being expressly provided " that, in adjourning the proceedings on the poll, he (the sheriff) shall be governed not by his own judgment, but by the decision of the superintendents." And it 72 CONTESTED ELECTION CASES IN CONGRESS. is also provided, by the act of 1831, that, if the sheriff or his deputy does not attend the election, he is subject to a fine; but the election may be held by any two of the superintendents, or, if they are absent, by two magistrates. j Mr. Goggin further insisted in his written argument that the officers con- ducting the election in the counties of Madison, Greene, and Amherst were not sworn ; and that, for this defect, the votes in these counties should be wholly rejected. Admitting the correct principle to be that they should be presumed to be sworn unless the contrary is proved, he contended that he had produced at least prima facie evidence that they were not sworn sufficient to make it necessary for Mr. Gilmer to show that they were. Without stopping to inquire whether the votes taken in a county or district ought to be rejected, and the voters be thus disfranchised, or the people put to the expense and trouble of a new election on account of the officers neglecting a part of their duty, even in so important a matter as that of being sworn, in a case where there is no allegation that the omission produced any practical evil, the committee are of opinion that the evidence produced does not amount to even prima.Ja.cie proof that the superintendents conducting the elections in the counties above named were not sworn. The neglect of the sheriff or his deputy to take the oath prescribed by the law of 1831, which was applicable to his duties when he alone conducted the election at the court-house without the aid of superintendents, cannot be material now ; since superintendents are appointed for all the polls, and those superintendents alone, decide upon the legality of votes — the sheriff having no voice in the matter, and his presence not being essential to the validity of the election. The evidence produced in regard to Madison county is a certificate of the clerk, which states that the sheriffs and superintendents were sworn. In regard to Greene, the deposition of Mr. Pritchett, the clerk of the county, was produced; who, being asked, in behalf of Mr. Goggin, if there was any record in his office of the oaths administered to the commissioners, sheriffs, &c, answered, "I can find none." Subsequently Mr. Pritchett certifies-that he does find on file in his office certificates that the commissioners and the sheriffs were sworn ; and he sends copies of the certificates. Oliver Finks, one of the superintendents, (or commissioners, as they are commonly called,) was examined •for Mr. Goggin ; and on his cross-examination being referred to the oath pre- scribed by law, and asked if that was the oath under which the commissioners for Greene county acted at the last election, he answered, " It is." As to the county of Amherst, the only evidence produced to show that some of the officers were not sworn consists of two certificates from the clerk of that county. The first states that it appears, from an examination of the poll-books in his office, that the officers, at some of the places of voting in that county, (there being five in all,) which he names, were not sworn; and at some; which he names, they were sworn ; and, in regard to one, where, there was a majority for Mr. Goggin, he does not state how it appears. The second certificate gives what are stated to be true copies of all the certificates, affidavits, and memo- randums, in writing, which were returned with the polls taken in the county on the 27th day of April, 1843, for a member of Congress. These two certificates are materially variant in their statements, and, in the opinion of the committee, are not entitled to be received as even prima facie evidence to disprove the* swearing of the superintendents. The law requires the magistrates adminis- tering the oaths to return them to the clerk, to be by him filed and preserved. But the clerk's mere certificate is not competent evidence of facts in his own knowledge, or derived from an examination of the records in his office, although such certificate is competent to authenticate copies of documents regularly on file. He should have been examined on oath to prove facts, or to negative the existence of documents. The importance of this distinction is made obvious by the discrepancies in the different certificates produced in this case. If, how- CONTESTED ELECTION CASES IN CONGRESS. 73 * ever, the certificates of the clerk of Amherst are received as evidence, they show that the superintendents were, .in point of fact, sworn at all the places of voting, except at Dillard's store, where, so far as appears, they only made oath how the votes stood at the close -of the election. Mr. Gilmer's majority at this poll wa3 eighteen votes ; so that, if they be rejected, he has still a majority in the district of four votes. The committee, therefore, submit the following resolution : Resolved, Thomas W. Gilmer is entitled to his seat in this house as one of the representa- tives from the State of Virginia. "On the 16th of February, 1844, Mr. Newton asked leave to withdraw the memorial of Mr. Goggin, contesting the seat of the Hon. Thomas W. Gilmer. Mr. Newton observed that, in withdrawing his memorial, Mr. Goggin did not f concede that Mr. Gilmer had been duly elected; but, inasmuch as he had been appointed to a high office, and had sent his letter of resignation to the governor of Virginia, the object Mr. Goggin and his friends had in view was accom- plished, so as to allow him a fair opportunity of coming before the people again as a candidate for election to Congress. For these reasons he asked leave to withdraw his memorial." TWENTY-EIGHTH CONGRESS, FIRST SESSION. Botts vs. Jones, of Virginia. The practice in Virginia in contesting votes for members of the legislature was for each party to establish the right of the voter challenged. Held by the committee that every voter admitted by the regular officers authorized to decide the question at the polls shall be con- sidered legally qualified, unless the contrary be shown. But as the- parties proceeded under the laws and practices of Virginia, and not by virtue of authority granted by the House of Representatives, the case was decided in accordance with such laws and practices. Authority given to a sheriff to appoint as many writers arid to open as many poll-books as he sees fit is authority to appoint but one and open but one book. IN THE HOUSE OF REPRESENTATIVES. May 21, 1844. Mr. Elmer, from the Committee of Elections,- submitted the' following report : That the sixth congressional district of Virginia consists of the counties of Chesterfield, Powhatan, Goochland, Louisa, Hanover, Henrico, and Richmond city. It appears, by certified lists of the votes taken therein at the election held pursuant to law on the fourth Thursday of April, 1843, that the candidates received the following number o*f votes, viz : Jones. Botts. Chesterfield 583 268 "Powhatan 211 210 Goochland 221 114 Louisa 372 224 Hanover 422 452 Henrico 331 387 Richmond city 228 679 2, 368 2, 334 2,334 Majority for Jones 34 74 CONTESTED ELECTION CASES IN CONGRESS. It is. insisted by Mr. Botts, in his memorial, that he received a majority of the votes of the legally qualified voters of the district, given at the polls ; and for the purpose of sustaining and disproving this allegation, the testimony of many witnesses, taken by the respective parties, and numerous wills, deeds, „ and other documents, produced by them, have been read and considered bythe committee in the course of a most laborious and protracted examination of the case. There being no law prescribing the mode of contesting elections for members of this house, the parties prepared their cases, in most respects, in conformity with the provisions of the law of Virginia regulating the mode of contesting elections for the State legislature. Those laws require the person intending to contest the election of a senator or delegate, within twenty-five days after the election in the case of a senator, within fifteen days in the case of a delegate for a county or city, and within twenty days in the case of a del- egate for an election district, to give the person whose seat is contested notice thereof in writing, and to deliver to him a list of those persons to whose votes he hath objection, stating the objection, and where he hath any other objection to the legality of the election, or eligibility of the person whose election is con- tested, distinguishing his particular objections. The opposite party may, within twenty days after receiving such notice, deliver the like lists on his part. To the notice of votes that are to be contested the party is required to append an oath, that he has reason to believe the persons whose names are mentioned are not legally qualified to vote. Notices being thus served, the parties are au- thorized to take depositions before a justice of the peace, upon reasonable notice of the time and place, beginning within one month after the delivery of the notice and finishing the taking at least thirty days preceding the commencement of the ensuing session of the general assembly. Mr. Botts, on his part, gave notices to Mr. Jones of his objections against two hundred and eighty-four voters, who gave their votes for Mr. Jones, and whose names are contained in the copies of the lists of votes kept, at the several places of voting, submitted to the committee, and against three persons whose names do not appear on those lists. The notice of the objections to twenty of the said voters was delivered fifty-five days after the election; but Mr. Jones not making this an objection, although he did not waive his right to do so, the notice was considered as if delivered in due time. Mr. Jones, on his part, gave notice in due time of his objections against four hundred and forty voters, who gave their votes for Mr. Botts, and whose names (except a few, which have been counted as good votes, because not properly objected to) are contained in the copies of the poll-books submitted to the com- mittee. Upon commencing the examination of the testimony and documents produced by the parties, it appeared that, according to the practice in contesting votes for members of the legislature of Virginia, each P art 7 considered himself bound to establish the right of the voter challenged, and in many cases where the vote was known to be unquestionably illegal; he therefore took no evidence respecting it, nor did the other party undertake to show it to be bad. The committee are of opinion that the true principle is, that every voter admitted by the regular officers authorized to decide the question at the polls ought to be considered legally qualified, unless the contrary be shown. But inasmuch as the parties had proceeded under the laws and practice of Virginia, and all their evidence was taken professedly under the authority of those laws, and not by virtue of any authority given by the House of Kepresentatives or by the com- mittee; and inasmuch as, from the manner of taking the testimony, justice could not have been done to the parties, by proceeding upon what the committee suppose is the true principle, it was determined to decide the case according to the laws and practice in contesting seats in the legislature of Virginia, volun- tarily adopted by the parties. CONTESTED ELECTION CASES IN CONGRESS. 75 The right of more than six hundred voters was decided by the committee, upon the evidence produced in each case ; and those that were proved to have the qualifications prescribed by the constitution and laws of Virginia for electors of delegates to the general assembly of that State were adjudged to be good voters ; and all those cases in which the testimony proved that the voter was not qualified, or in which the testimony failed to establish the voter's right, were taken to be illegal, and were rejected. Those voters whose votes were objected to, respecting which no testimony was produced, were also considered as thereby admitted to be illegal, and were also rejected. The committee have not deemed it expedient to swell this report with the names of the voters de- cided to be good, or disallowed as bad ; but a list of them has been made and is reported with the testimony, and may be examined if it be found necessary. The result may be stated as follows : Number of voters for Mr. Jones objected to by Mr. Botts ; number decided, to be good, and number rejected. Number objected. Good. B ad Chesterfield 101 Not on poll 2 99 69 30 Powhatan - 10 2 , 8 Goochland 12 10 2 Louisa 29 16. 13 Hanover 59 Not on poll 1 58 34 24 •Henrico 27 16 11 .Richmond r .49 20 29 Total rejected, not being shown to be good 117 * = Number of voters for Mr. Botts objected to by Mr. Jones ; number decided, to be good, and number rejected. Number objected. Good. Bad. Chesterfield 48 18 30 Powhatan 20 3 17 Goochland ■- 23 10 13 Louisa ' 45 25 20 Hanover 64 N 33 31 Henrico - 63 25 38 Richmond 177 88 89 Total rejected, not being shown to be good .. K 238 Two voters were allowed to Mr. Botts in this count who were rejected by the superintendents, but shown to be good voters; and several were also counted as good, because not rightly named in Mr. Jones's notice. 76 CONTESTED ELECTION CASES IN CONGRESS. RECAPITULATION. Number of voters for Mr. Botts rejected - 238 Number of voters for Mr. Jones rejected 117 Mr. Botts's excess of bad votes . . 121 Add Mr. Jones's original majority 34 Majority of legal votes for Mr. Jones 155 Mr. Botts asks to have the majority given for Mr. Jones in the county of Chesterfield (amounting to three hundred and fifteen votes) wholly rejected, upon the ground that the election was not legally held, and is therefore null and void. The objection made to the election in this county is, that only one poll-book was kept by one writer, or poll-keeper, of the votes for a member of Congress — it being insisted by Mr. Bo|tts that the law of Virginia, regulating the elections of members of Congress/ requires more than one. That law is as follows : The person authorized by law to hold elections for members of the general assembly in each county, city, and borough shall conduct the said election, at which no determination shall be had by view ; but each person qualified to vote shall fairly and publicly poll, and the name of the voter shall be duly entered under the name of the person voted for, in proper poll-books, to be provided by the officer conducting the election ; for which purpose he shall appoint so many writers as he shall think fit, who shall respectively take an oath, to be ad- ministered by him, or make solemn affirmation, that they will take the poll fairly and impar- - tially ; he shall deliver a poll-book to each writer, who shall enter in distinct columns, under the name of the person voted for, the name of each elector voting for such person. Like pro- clamation and proceedings shall be had for conducting, continuing, and closing the poll in each county of a district, as is prescribed by law in the election of members of the general assembly. Subsequent laws provide that the election for senators, delegates, and mem bers of Congress shall be holden at the same time and place in each county or city, and by the same officers ; and a direction similar to that above copied is given for the appointment of writers or poll-keepeii. The person conducting the election at the time of the passing of the above act in 1813, in the counties, was the sheriff. By the provisions of acts since passed, superintendents or commissioners are required to be appointed ; any two or more of whom hold the elections, appoint the writers, and decide upon the qualifications of the voters — the sheriff having no voice in the matter, and his presence not being necessary. From the testimony submitted to us, it ap- pears that three writers were appointed and sworn — one of whom kept the poll- book of the votes for member of Congress, one kept the book of the votes for senator, and another the book of the votes for delegate to the Virginia legisla- ture, who were all voted for at the same election. The superintendents did, in point of fact, appoint and qualify more than one writer, who assisted in con- ducting this election, and whose respective duties were distributed to them, as the circumstances of the case required. In the opinion of the committee, however, the laws above referred to do not require the officers to appoint more than one writer, or provide more than one poll-book, unless they think fit. The authority given to appoint so many as they think fit, is an authority to appoint only one, if, in their judgment, one is sufficient. Should the true con- struction of the laws be considered to require the superintendents to appoint more than one writer to keep the poll of each officer voted for, still the com- mittee do not think that the omission- to do so is such an irregularity as to render the election null and void, and thus deprive the people of their votes, or put them to the trouble and expense of a new election. No fraud or unfairness is complained of, nor is it shown that any mistakes were made by the writer CONTESTED ELECTION CASES IN CONGRESS. 77 employed. The memorialist was himself present during a considerable part of the day, saw how the election was conducted, and made no objection to it. No decision of this House, so far as the committee are informed, has ever sanctioned such a result. The case of Easton vs. Scott (Contested Election Cases, page 276) referred to by Mr. Botts in his memorial is altogether difierent from this. That was the case of an election held in 1816, in the then Territory of Missouri, where the law expressly required that there should be three judges and two clerks, and that the electors should vote by ballot. It was stated to be proved that in one township the judges put on the list the names of persons who did not vote, and were not in the township; and that one person refused to vote, but was compelled to do so .by the judges, who sent a paper to bring him before them. The committee decided to reject the votes in that township, as they state, " for a variety of causes, among which are the following : 1st. The elec- tion was held viva voce. Sid. But two persons acted as judges, and neither of "them was sworn. 3d. But one person acted as "clerk, and he was not sworn. 4th. The votes were rejected by the justices whom the clerk took to his assist- ance in making out the abstracts to be forwarded to the governor; they were sent to the governor in an irregular manner ; and the paper called a ' return' appeared, upon its face, defective in many important particulars." These causes, combined with the other facts of the case, were amply sufficient to justify that decision; and whenever they shall exist in another case, will render it proper to conform to it. In the case before us, the committee have decided, and submit to the House, that there is no sufficient reason for setting aside the elec- tion held in the county of Chesterfield; and that the, votes given there, after rejecting those specially objected to and not proven to be legal, ought to be counted. Objection is made by Mr. Botts to the votes given at Poor's precinct, in the county of Goochland, where Mr. Jones had a majority of thirty-six votes. If these votes should be rejected, it will be perceived that, the result will not be affected. But the committee are not of opinion that they ought to be rejected. The law of Virginia respecting contested elections, before recited, and under the provisions of which the parties acted and prepared their case, reqiiires a regular notice to be served of any objections to the legality of the election, as well as of objections against particular voters. Notice was given by Mr. Botts of objections to several voters who voted at this precinct, and testimony has been taken touching their legality. But it is not shown that any notice whatever of an objection to the legality of this election was at any time served on Mr. Jones, or on any attorney authorized by him .to receive notices of objections. Mr. Jones admitted before the committee, that a few days befdre he left home to attend the meeting of Congress he received information from his attorney, who was authorized to give and receive notices of the time and place of taking depositions to be used in support of votes objected to in Goochland county, that he had been notified that such an objection would be taken; and it was further stated by Mr. Jones, that he answered his attorney by informing him that no notice respecting such alleged illegality had been served on him, and that he need not give himself any tirouble about it. The attorney, however, had his own deposition taken on this subject on the 29th day of November, 1843. On the 15th of January last, Mr. Botts had depositions taken, and the witnesses were cross-examined by Mr. Jones's counsel, after entering his protest against the legality of the proceeding. The committee think that depositions thus taken in support of an alleged illegality, of which no notice was given, and after notice had been given of objections to particular votes, pursuant to the law of Virginia, ought not to be received. These depositions were not taken in pursuance of any authority given by this House, or by the committee ; and, if offered as taken in pursuance of the law of Virginia, it should appear ^hat that law was complied with. 78 CONTESTED ELECTION CASES IN CONGRESS. If these depositions are received, and this objection considered, it becomes necessary to inquire whether the facts proved are such as to require the election at that precinct to be considered null and void. The sheriff, it appears, did not take the oath prescribed by the act of 1831 respecting elections, although he was sworn to fulfil the duties of his office, when appointed. By that act it was made the duty of the sheriff to hold the elections, in certain cases, himself, and to decide upon the legality of votes; and an oath was prescribed applicable to his then duties! Now, all the elections are required to be conducted by superintendents, who alone decide upon the votes, ' and who are authorized to proceed without the presence of the sheriff; so that the oath prescribed has become inapplicable to the duties to be performed by the sheriff, if he thinks proper to attend, as it is still his duty to do. Two superintendents, it appears, did conduct the election all the time at this precinct; but it would seem that one of those who acted during a part of a day was not sworn. This was undoubtedly irregular and illegal ; but the committee are not prepared, on that account, to set aside the election as wholly null and void, in a case where it appears to have been fairly conducted ; where the name of every voter and his vote is recorded, so that if either party objects to him, the other is required to prove him legally qualified to vote; and where such objections have been actually made, and the votes rejected unless duly proven to be good. None of the cases cited by Mr. Botts, in his memorial, on this point, are like the case now before us. The committee recommend the following resolution : Resolved, That John W. Jones is entitled to his seat irurihis House, as a representative from the sixth congressional district of the State) of Virginia. , When the case came into the House a very brief debate ensued. Mr. Schenck moved that the further consideration of the reports of the majority and ol the minority of the Committee of Elections in this case be postponed until Thursday next. Mr. S. proceeded to remark that, in order to get a full understanding of the grounds upon which the Minority of the committee had come to the conclusion to which they had arrived, it seemed to him it was absolutely necessary that gentlemen should have an opportunity of- examining the evidence. The minority, it was true, had concurred with the decision* of the majority in its final result ; but there remained a question regarding the qualification of votes, the decision of which would affect the legality of the election in many of the States. He had concurred in excluding the class of votes excluded by the majority, because the admission of such votes (under the qualifications prescribed by the States) would be render- ing nugatory the power granted to the Congress of the United States — the States being per- mitted to admit to citizenship those who were not recognized as citizens in every respect, and particularly under the laws of the United States. It was true, it would cut off thousands of voters in Michigan and other States ; and he would say to his New England friends that it would cut off the votes of all colored persons. If the kind of votes to which he had referred were allowed, Mr. Botts would have a majority of three or four votes, and consequently be entitled to the seat ; but being excluded, Mr. Jones had a majority. * The vote was taken June 6. Mr. Elmer said, as some explanation of the action of the committee might perhaps be expected from him, he would trouble the House with a very few brief remarks. He trusted the House would be as unanimous in its decision of this question as the committee had been. He argued that the committee could not have come to any other conclusion than they did, even if they had followed the requirements of the contesting candidate [Mr. Botts] himself, in regard to the allowance or rejection of votes. And he»said, further, that it was a case which ought never to have come before the House, for there was no good ground on which the seat of Mr. Jones could be contested. He went into an explanation of the case at some length, and also of the action of the committee thereon. Mr. Newton said both the majority and the minority of the committee had arrived at the » same result respecting the right of the sitting member ;. but he went on to show that the con- test on the part of Mr. Botts was not vexatious, nor frivolous. Mr. Hamlin also addressed the House, and complained of the course pursued by the minority of the Election Committee. He concluded by moving the previous question ; which was seconded by the House, and the main,question ordered to be put. Mr. Hammet called for the yeas and nays on the adoption of the resolution from the majority of the Committee of Elections, declaratory of the right of Mr. Jones to his seat, and they were ordered ; and being taken, resulted thus : yeas 150, nays nojne. CONTESTED ELECTION CASES IN CONGRESS. 79 TWENTY-NINTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Hamlin, Maine. Mr. Ellsworth, New York. A. A. Chapman, Virginia. McGaughey, Indiana. Harper, Ohio. Culver, New Jersey. Chase, Tennessee. Chipman, Michigan. Dobbin, North Carolina. BROCKENBROUGH VS. CABELL, OF FLORIDA. Where votes given to a representative in Congress are required by State law to be returned within a. specified time — held that the law is simply directory, and .that votes returned after the time specified may be counted. IN THE HOUSE OF REPRESENTATIVES. January 7, 1846. Mr. Hamlin, from the Committee of Elections, made the following report : The memorial of Mr. Brockenbrough claims that he was entitled to the com- mission of the governor at the time it was given to Mr. Cabell, upon the ground that of the votes then legally returned a majority was for him ; and further, that of all the votes legally given at the election, a majority was also in his favor. * Said memorial is as follows, addressed to the House of Representatives : The memorial and petition of William H. Brockenbrough, representative eleot from the State of Florida in the 29th Congress, respectfully shows — J|k That he claims the right to a seat in the House of Representatives, and to represent the people of Florida in the 29th Congress, and exhibits herewith the certificate of the secretary of state of Florida, under the great seal of the State, as conclusive evidence that at the time required by law for counting the votes returned to the office of the. secretary of state, the majority of votes, by the lawful returns, was in favor of your memorialist. Your memorialist further protests against and contests the right of Edward C. Cabell to a seat in the House of Representatives, or to represent the people of Florida in the 29th Con- gress of the United States — First. Because he denies and contests the election of the said Edward C. Cabell upon the following grounds, to wit : Because, at the election held in the State of Florida according to law, on the 6th day of October, A. D. 1845, for representative of the people of Florida in the 29th Congress, the greatest number of votes of the legally qualified voters of the State of Florida was cast in favor cf your memorialist,%nd not in favor of the said Edward C. Cabell. Secondly. This memorialist protests against and contests the right of the said Edward C. Cabell to a seat in the House of Representatives, or to represent the people of Florida in the House of Representatives of the 29th Congress — Because he contests and denies the force, effect, and validity of the return of the said Edward C. Cabell, and claims that the same shall be wholly set aside and held for naught, as illegal, irregular, informal, and invalid, on the following grounds, to wit: Because, ai the expiration of thirty days after the election for representative in the 29th Congress, at which time the law required the returns in his office to be counted by the secre- tary of state, the greatest number of votes, by the lawful returns then in the office of the secretary of state, was in favor of this memorialist, and not in favor of the said Edward C. Cabell, as is shown by the certificate of said secretary, hereinbefore referred to. And the certificate which was given in favor of said Cabell, by thersaid secretary, upon which the commission of the governor was granted, was unlawful, erroneous, and wholly null and void, and did not represent to the governor the true state of facts ; because the said secretary counted as in favor of- the said Edward C. Cabell certain supposed votes of which there was no legal return in his office. Of all which said Cabell has had notice, a copy of which is herewith presented ; and all of which is herewith presented and respectfully submitted by your memorialist. W. H. BROCKENBROUGH, Representative elect of the people of Florida in the «9tA Congress of the United States. 80 CONTESTED ELECTION CASES IN CONGRESS. There is no law of the United States regulating the mode and manner of proceedings in cases of contested elections. The law. of the State where the parties reside is therefore resorted to, so far as it may be applicable, as the rule by which your committee is directed. By the law of Florida, it is provided ' that any candidate who shall contest the election of any person to the^ senate or house of representatives of that State shall give notice thereof, in writing, to the person whose election he contests, within ten days after the canvass of county clerks, and within thirty days after the canvass of the secretary of State. It was made the duty of county clerks to canvass the votes given for officers in their several counties, and the secretary of state to canvass the votes for officers who were elected by the whole State ; and it was competent for Mr. Brocken- brough to give the notice required by law within thirty days after the canvass of the secretary of state. On the 19th day of November, A. D. 1845, Mr. Cabell was notified by Mr. Brockenbrough, agreeably to the requirements of law, the canvassing of said votes having taken place on the 6th of said November by the secretary of state, and was by him certified to the governor. A copy of said notice is annexed, marked A. The notice was objected to as insufficient by Mr. Cabell, but your committee were of a different opinion. The law of Florida, approved July 26, 1845, " prescribed the time, place, • and manner of electing representatives to Congress," &c. Chapter 16, section 2, provides " that the returns of said election for representative in Congress shall be made to the secretary of state of this State, who shall count the same at the expiration of thirty days after the election, and certify the result to the gover- , nor of the State, who shall commission 'the person receiving the greatest number of votes." At the expiration of said time the secretary of state did so count said votes, and certify the same to the governor of Florida, accompanied by a tabular state- ment of tire return of votes then made to him. The governor, upon the certificate and accompanying tabular statement of votes made to him by the secretary of state, on the 6th 'day of November issued his commission to Edward C. Cabell. A copy of that commission is annexed, marked B. Mr. Brockenbrough presented to the committee a copy, duly attested, and under the seal of the State, of the tabular statement of the votes, certified by the secretary of state to the governor, in the manner before named. That paper was admitted 'as evidence by the committee, and without objection from any one. A copy of that paper is annexed, marked No. 1. He also offered certified copies of returns from the counties of Santa Rosa, Washington, Hillsboro', and Columbia, made to the office of the secretary of state, by judges of probate, after the expiration of thirty days, and after the , secretary of state had made his certificate to the governor. Copies of these papers are annexed, and marked Nos. 2 and 6. They were admitted as evidence by the committee. He further offered to the committee certified copies of the returns made by inspectors of elections to the secretary of state, after thirty days from the pre- cincts of Key West and Tortugas, in the county of Monroe, and Brandy Branch, in the county of Nassau. These papers were received in evidence by the com- mittee, and copies are annexed, marked Nos. 3, 4, and 5. But the committee refused to count or allow the votes returned in said papers. Mr. Brockenbrough alsoprenented a paper marked 2; but it was not considered as evidence by your committee. To understand the evidence contained in the foregoing papers, it becomes ne-. cessary to examine the laws of Florida for the purpose of ascertaining who are the officers created and directed to make the returns of "votes given at an election for representative in Congress. Tabular statement No. 1 presents the evidence of returns made by three classes of persons, to wit : judges of probate, county CONTESTED ELECTION CASES IN CONGRESS. 81 clerk, and by other persons supposed to be inspectors of elections ; and the evi- dence offered by Mr. Brockenbrough consists of two kinds of returns — one made by judges of probate, and the other by inspectors.. What officers, then, by law were created and directed to make returns of said election ? and what votes returned by the various officers should be counted and allowed ? The following extract from the laws of Florida, approved March 15, A. D. 1S43, define the manner of holding elections, and who shall make return of votes ; which law, in the opinion of your committee, together with another law, (being chapter 16,) already referred to, constitutes the law governing elections and re- turn of votes. The constitution provides that all laws and parts of laws now in force, or which may be hereafter passed, while Florida was a Territory, not re- pugnant to the constitution, shall continue in force until, by operation of their provisions or limitations, the same shall cease to be in force, or until the general assembly of the State of Florida shall alter or repeal the same. Sections of the law of Florida, passed March 15, 1843, providing for the elec- tion of officers, are applicable to this case. *T" *T* *!» *t* *t* T* The territorial law of 1843 is clear and explicitin its terms. It empowers county clerks to order elections for county officers, to appoint inspectors to hold elections, and make returns of said elections to the county clerk ; and for the clerk to cer- tify the votes so returned to him to the secretary. It contains, in fact, all the necessary provisions for ordering, holding, and perfecting elections of county officers. The law of July, 1845, providing for the election of representative in Con- gress, directs that representatives in Congress shall be elected in the same way as county officers ; and the 6th section of the act transfers to judges of probate the same powers and duties, in relation to the ordering, holding, and perfecting elections, that were conferred upon county clerks. There can, then, be no doubt that judges of probate were the officers legally authorized and directed to order this election, appoint inspectors, and make re- turns of the same, unless the provisions of the foregoing law are changed or modified by some other act. There is no law altering or changing the same, unless it be an act passed by the Territory of Florida, March 11, 1845," to facilitate the organization of Florida." There was a territorial law, approved March 11, A. D. 1845, entitled " An act to facilitate the organization of Florida" That law, in the opinion of your committee, does not change the laws before referred to. It was a special law, designed for a special purpose ; that purpose having been effected, the law ceases to have any further force or effect. It provided only for the election of certain State officers, on the admission of Florida into the Union, and also for a repre- sentative in Congress. That representative was so elected, and resigned his seat. The legislature elected under the operations of that law passed the act of July 26, A. D. 1845, chap. 16, under which this election was held. It will be borne in mind that said law did not provide for the election of any county officers. It repealed all laws inconsistent with it ; but that repealing clause could not apply to a law regulating county officers, for it contained no provision in relation to, or providiug for, the election of county officers. It was a law to facilitate the organization of Florida, and directed county clerks to appoint in- spectors of election to elect certain officers therein named. The law of July 26, 1845, subsequently passed by the legislature of the State of Florida, and under which this election was held, provides that representatives in Congress shall be elected in the same way as county officers — and could not, therefore, refer to the said law of March 11, but to the law of 1843, providing for the election of county officers. The territorial act of 1845 (March 11) does not conflict with the law of 1843, H. Mis. Doc. 57 6 82 CONTESTED ELECTION CASES IN CONGRESS. except to adapt the latter to the provisions of the constitution ; and the law of 1843 is only repealed so far as it so conflicts. So far from repealing the law of 1843, it specially invokes its aid in many passages, and in general terms in the 8th section. The law of 1845 requires additional duties of the returning officers, but it repeals none of the former duties. It is an act to organize the government of Florida, and cannot be used after it is organized. It requires the clerks (section 1) to perform their duties, not by general law, but by a proclamation of the governor, setting forth certain facts and laws. It requires, in that particular case, that the names of the persons appointed inspectors shall be transmitted by county clerks to the secretary of the Terri- tory, and also to the committee of the constitution convention at Tallahassee. The same act also requires inspectors in that case to send their returns to said constitutional committee, to the secretary of the Territory, and to the county clerks. The secretary is then to report to the constitutional committee ; and the certificate of said committee, (section 15,) and not of the secretary, is to be the evidence of election. This constitutes almost the whole difference between the acts of 1845 and 1843. If the act of 1843 is repealed, and that of 1845 substituted, the constitutional committee is a permanent body, and their certifi- cate is requisite, for the secretary is bound to report to them, and the com- mittee gives the certificate. If the law of 1845 is the law, there is no provision for the election of county officers whatever. That law was to organize the State, by electing governor, legislature, and representatives in Congress ; and county officers were to be elected after the State was organized ; and they have been elected, and yet there has been no new provision. They were elected under the law of 1843, or without law. The State act (July 26, 1845) for the election of representatives in Congress, and prescribing time, place, and manner, only prescribes them by reference to the county officers, of clerks, &c. ; and as there is no provision for them in the territorial act of 1845, or elsewhere, except the act of 1843, it follows that the latter is referred to and adopted by the State act. The same act fulfils the requisition of the State constitution, as to returns being made to the secretary of state, in manner to be prescribed by law, (constitution, article 1, section 16,) by giving the judges of probate the same powers and duties as were given to the county clerks, and authorizing them in the same way to order county or general elections. The clerks had no power to order county or general elections by the terri- torial act of 1845. They were required by proclamation to order a single State election for special purposes, and not county elections. But, by the act of 1843, they had powers to order county and general elec- tions. Thus the act of 1S45 does not repeal or intend to repeal the act of 1843, but to adopt it for that special occasion, and to leave it as the general election law of the State; and the general assembly, by their act, could not have referred to the act of 1845, but to the act of 1843, because their act is consistent with the latter and not the former. As additional evidence that the territorial legislature of 1845 did not intend to repeal the law of 1843, it amended the very law of 1843, and the amendment immediately follows the law, which, it is contended, was the repealing law. Arriving, therefore, at the conclusion that the law of 1843, and the law of July, 1845, are the laws which govern this election, your committee can come to no other conclusion than that the judges of probate are the officers directed to appoint inspectors of elections ; that the inspectors should return the votes of their several precincts to said judges, and the judges to the secretary of state. If, however, no judges of probate had been appointed, commissioned, and quali- fied at the time of this election, it would have been the duty of the county clerk to have performed the same services, as the constitution provides " that CONTESTED ELECTION CASES IN CONGRESS. 83 all officers, civil and military, now holding their offices and appointments in the Territory under the authority of the United States, or under the authority of the Territory, shall continue to hold and exercise their respective offices and appointments until superseded under the constitution." By the law of 1S43, county clerks were the officers to order elections, appoint inspectors, receive their returns, and certify them to the secretary of the Territory. The law of July, 1845, imposes the same duties upon judges of probate ; but county clerks, under the foregoing provision of the constitution, would continue to discharge their duties until judges of probate were appointed, commissioned, and qualified. Under the foregoing view of this case, and examination of the evidence, the following facts appear : the whole number of votes certified by the secretary of state to the governor, at the end of thirty days after the election, as per tabular statement No. 1, was 5,013 — For E. C. Cabell 2,523 For W. H. Brockenbrough 2,472 Majority for Mr. Cabell 51 The returns made in said tabular statement by judges of probate, within thirty days, to the secretary of state, were from the counties of Jackson, Franklin, Gadsden, Leon, Wakula, Jefferson, Madison, Hamilton, Alachua, Marion, Benton, Orange, Duval, and St. John's — For Mr. Brockenbrough. For Mr. Cabell. Giving 1,827 1,816 Add returns made by the county clerk of Nassau 79 26 1,956 1,842 Majority for Mr. Brockenbrough, 114. Add to the foregoing returns em- braced in papers marked 2 and 6, be- ing returns made by judges of probate after the expiration of 30 days, to wit : Santa Rosa county 35 137 Washington county 85 13 Hillsboro' county 61 33 Columbia county 229 172 2,366 2,197 Majority for Mr. Brockenbrough 169 It will be observed that the counties of Santa Eosa, Washington, and Co- lumbia were not returned to the secretary of state at the expiration of thirty days by judges of probate, but were partially returned by other persons, who were undoubtedly inspectors. But said returns were made by judges of probate after the expiration of thirty days. There are, then, remaining in the tabular statement No. 1 the following counties not returned by judges of probate or county clerks, supposed to be by inspectors : CONGRESS. For Mr. B. For Mr. 88 152 55 178 30 20 6 10 14 11 193 371 84 CONTESTED ELECTION CASES IN C. Escambia county Walton county . . Calhoun county. Levy county .... Dade county .... If these votes m-e counted and allowed, it makes . . 2,559 2,568 Majority for Mr. Cabell, 9. If, however, these votes are allowed, it would seem equally clear that the returns from Key West and Tortugas, in Monroe county, made by inspectors, and marked Nos. 3 and 4, should be also counted. If the returns made by judges of probate alone are to be counted, then Mr. Brockenbrough is elected. But if the votes in the tabular statement No. 1, made by inspectors, or other persons than judges of probate or county clerks, be counted, the same rule, it would seem, should include the votes of Monroe county, which were also returned by inspectors after thirty days, and contained in papers marked Nos. 3 and 4. Of the whole number of votes returned to the secretary of state as before stated, by judges of probate and county clerks, Mr. B. has 2,366 C. 2,197 Majority for Mr. B., 169. Add the returns in statement No. 1, made by other persons supposed to be inspectors — for Mr. B 193 C. 371 Add also returns made by inspectors of Monroe county, as per papers Nos. 3 and 4 110 C. 64 2,669 2,632 Majority for Mr. B., 37. The result then presented is, that Mr. Brockenbrough has a majority of 169 of the votes returned by judges of probate and one county clerk ; and if the votes in the tabular statement not made by judges of probate or county clerks be also included, together with those made by inspectors from Monroe county to the secretary of state after thirty days, then Mr. Brockenbrough will have a majority of 37, and is, by either computation, elected to his seat. While there is a difference of opinion of the committee whether any votes should be counted excepting those returned by judges of probate, yet they are of opinion that the returns made by inspectors from Monroe county should stand precisely as the returns do in the tabular statement No. 1, not made by judges of probate or county clerks. The law of Florida requires that the return of votes given for a representa- tive in Congress shall be returned to the secretary of state within thirty days next after the election. Tour committee deem the provisions of the law only as directory, and are of the opinion that the votes returned after the thirty days should be counted, as well as those returned within that time. A different con- struction might lead to bad results, and tend to defeat the will of the people ; a different construction would permit a corrupt officer to defeat the voice of a majority, by his refusing to make his return; it would subject the will of that majority to be defeated by the accidental loss of returns. What is the will of a majority legally expressed at the polls, has been the rule of the committee, and such the settled rule of the House in a great number of cases. CONTESTED ELECTION CASES IN CONGRESS. 85- Your committee, therefore, submit the following resolutions : Resolved, That Edward C. Cabell, returned to this house as a member thereof, from the- State of Florida, is not entitled to his seat. Resolved, That William H. Broekenbrough is entitled to a seat in this house as a repre- sentative from the State of Florida. In the debate in the House, Mr. Hamlix, of Maine, said : The law of 1845, passed after Florida became a Stafe, changed the duty of the county clerks. It provided that judges of probate should perform the same duties in the State of Florida that were originally performed in the Territory by the county clerks. If the matter had been left there, and there had been no other law, the case would be perfectly clear. No question could be raised, because the law of the State imposed upon the judges of probate, when appointed, the same duties that had been performed by the county clerks. They were to order elections. The law declared that a representative in Congress should be elected in the same way and manner as the county officers. If, therefore, these were the only two- laws, there could be no doubt that the judges of probate in 1845 were the same officers who,, under the law of 1843, were to discharge the duties of county clerk. But in the month of May, 1845, the legislature of Florida (before she became a State) passed another law — a law " to facilitate the admission of Florida into the Union." The committee were of opinion that it was a law designed expressly for that purpose, and none other ; and that, after that event had taken place, it ceased to have any legal vitality. In- deed, it must be so, because the law passed in July, 1845, did not refer to the territorial law of May, 1845, for there was no provision in that territorial law to regulate the mode and manner of electing county officers. The law itself, in every form, by its caption and its pre- amble, was a special law, designed for the sole purpose of facilitating the admission of the Territory as a State into the Union, and of electing a representative in Congress at that time. Under that law a representative was elected. He ' resigned. The legislature met and adopted the law of July, prescribing the mode and manner oi electing members of Congress ; that was to say, in the same way as county officers ; and the judges of probate were to exer- cise the same powers and duties that county clerks originally had exercised. Hence the only conclusion to be drawn was, that judges of probate were now to appoint inspectors and to receive returns, and to make these returns to the secretary of state. The secretary of state, in turn, was to certify the aggregate of votes received at his office, within thirty days, to the governor ; and on that certificate the governor was to issue his commission. Such was the opinion of the committee ; and it was believed that, on a careful examina- tion of the matter, gentlemen on all sides could come to no other conclusion. Once having arrived at the conclusion that the judges of probate were the legal returning officers, that they were the officers pointed out by law, through whom the votes shall reach the office of the secretary of state, we might settle down upon a strict legal- principle, that the number of votes received at his office within thirty days would be the only strict legal mode of ascer- taining who was entitled, at the expiration of that thirty days, to the commission of the governor. And if this rule was taken as the basis of action, if we stopped there, then Mr. Broekenbrough was elected by a majority of one hundred and fourteen votes ; that was to say, votes returned within thirty days by judges ofprobate and one county clerk would give him that majority. County clerks, gentlemen would bear in mind, stood precisely in the same condition as judges of probate, because they originally performed that duty ; and the constitution provided that they should continue to discharge their duties till judges ofprobate should be appointed. But, sir, as-an individual member of that committee, I could not consent to fetter down aud infringe upon the rights of the people of Florida by the provisions of any law simply directory. It must necessarily result in this, that the officers appointed to do certain duties, iu making returns, are, in fact, made electing officers ; it is no longer an election of the peo- ple of the State, but an election of the returning officers. What is the true state of the votes given at the polls by the legal voters of the State, is the true question before the House, on the decision of which, I trust, they will make the decision of this question depend. I care, not through what channel the votes thus legally cast reach the secretary of state, or reach us here ; that question would not have the weight of a single feather with me ; it has not the power to be galvanized into life by all the eloquence and all the ingenuity which gentlemen can bring to bear upon it ; for the moment you depart from this rule, for which I contend, you make the result of the election depend, not on the elector but upon the corrupt officer, upon accidental loss, and upon every other incidental circumstance which may come in to defeat the will of the peoj>le ; and I have learned the lesson, which I shall not soon forget, that it is the true expression of the legal voters of this country which is to be heard. * * * The first paper was a statement, certified by the secretary of state as being an exact copy of that statement which he had sent to the governor within the thirty days required by law after the election, and on which statement the governor had issued his com- mission to the sitting member. This paper presented returns from three classes of officers. It was true the law of Florida provides by what class of officers the returns shall be made. A portion of these returns were made by judges of probate ; the majority of the committee 86 CONTESTED ELECTION CASES IN CONGRESS. say they are legal returns ; another portion were made by county clerks ; the majority of the committee said they were legal; and another portion giving- to the sitting member [Mr. Cabell] 370-odd votes, and to the contesting member [Mr. Brockenbrough] some 180 votes, which were made by inspectors directly to the secretary of state. He was for receiv- ing and counting every vote of all these returns, no matter what was the result which was arrived at thereby. There were additional returns made by judges of probate to the secre- tary's office after the thirty days ; the contesting member presented certified copies of them, and they were allowed by the committee. The contesting member also presented returns made by inspectors of elections in Monroe county. These were made directly to the secre- tary of state, but after the thirty days, and were by the secretary certified to this house j and as one of the committee, arriving at the conclusion of the secretary of state, he (Mr. H. ) went for counting these votes, and for' his life he could see no distinction between counting the same class returned to the governor within the thirty days, or those which were returned after the thirty days. * * * Again, the secretary of state was bound to certify all papers coming legally into his possession. The constitution did not provide that they should be legal papers in his possession ; but that any , paper legally in the possession of the secretary of state may be certified, and the paper thus certified have all the power of the original paper. He (Mr. H.) would have taken these returns from Monroe if they had never gone to the secretary of state ; he would have traced back to that county and ascertained what were the returns made by the inspectors of the votes legally cast, and he would have received them in evidence. The strictly legal channel would have been for them to have gone through the judge of probate ; but, nevertheless, they had been received, and legally received, by the secretary of state, and when certified by him they had all the effect of original papers. They were papers relating to the election of that State ; they had gone to the secretary of state in a legal man- ner, and were certified to by him. Why, then, should not these votes, certified to in this evidence, be taken equally with the same class certified by the same officer to the governor, on which the commission had issued, and which had been received by the minority of the committee. y Mr. Ohipman, a member of the committee, argued against the report. He said : " The first paper offered was the paper No. 1, to which the honorable chairman of the com- mittee alluded. And here he begged leave to state that, on an inspection of that paper, it would be found that there were no returns in it, as certified by the secretary of state, except returns made by probate judges. That might, perhaps, seem a broad assertion after the declaration of the chairman of the committee ; but he should attempt to substantiate it. There was one return, purporting to have been made by a county clerk, which the secretary of state had expressly excepted and rejected. He wished the House, then, to bear in mind this fact, that there was no return in statement No. 1 , on which the commission was issued, except returns by judges of probate. The committee had determined that the proper returns were those legally placed in the office of the secretary of state, and to which his certificate would give the force of evidence ; that these were to be received as good returns, and these alone ; and hence that inspectors' returns were not admissible. The question arose whether these inspectors, under their official oaths, could make these returns, and give them, when backed by the certificate of the secretary, the force and effect of legal evidence. The majority of the committee decided that they were illegal ; that the inspectors had no right to send up such returns to the secretary .of state, and, to use the language of the constitu- tion, that they were not papers legally in the possession of the secretary of state, and, there- fore, that his certificate could not give them the force of evidence. Under this rule of pro- ceeding the decision would have given the election to the sitting member upon the evidence before the committee : and so it was declared, not by the now minority of the committee, but by the then majority of the committee." Mr. Culver (of the minority of the committee) addressed the House at some length in reply to Mr. Hamlin, and in explanation and defence of the positions of the minority report. That report, (he stated at the outset of his remarks,) which seemed to have been made .the target for the shots of gentlemen who had participated in the debate, was originally drawn up by himself under the order of the committee as a majority report ; but on the change of positions of gentlemen, members of that committee, which had been frequently alluded to, it was only necessary to alter the title and it became the minority report. Hence, it was due to the gentleman from Michigan, [Mr. Chipman, ] who was one of the gentlemen whose signature was attached to it, to state that when it was announced that the chairman of the committee [Mr. Hamlin] intended to bring in his report as the majority report, the gentle- man had not time to look oyer the minority report, but agreeing to its premises and its con- clusions, he had concurred in it. Mr. Culver argued that there had uot been received sufficient evidence to counterbalance the prima facie evidence of the commission of Mr. Cabell ; that the evidence of the returns, subsequent to those made to the secretary of state within the thirty days required by law, brought forward by Mr. Brockenbrough, was to be considered as ex parte and inadmis- CONTESTED ELECTION CASES IN CONGRESS. 87. sible — specific notice not having been given to Mr. Cabell; and that Mr. Broekenbrough had failed to substantiate the position he had taken, that he had received a majority of all the legal v^tes cast, all the returns not having been received up to this time. He adverted to the importance of arriving at a correct conclusion, not only as regarded the case itself, but in view of the precedent which its decision would establish, and maintained the propriety of postponing action until further proof could be brought forward. If it should then appear that Mr. Broekenbrough was entitled to the seat, he should be as ready as any gentleman to yield it to him. Mr. C. yielded in the course of his remarks for purposes of explanation to Messrs. Hamlin* and Seaborn Jones ; and having concluded — Mr. Hamlin made further explanation of certain details of the action of the committee alluded to by Mr. Culver. Mr. Dobbin (of the majority of the committee) defended the action of the committee, and the claim of Mr. Broekenbrough to the seat, on the ground that he had alike received a majority of the votes returned to the office of the secretary of state, according to the strict requirements of the law, within the thirty days, and of all the votes, including those subse- quently returned. He sustained the propriety of the division of the question of returns and of election, maintaining that Mr. B. should have received the commission — the true prima facie evidence being in his favor — and that the House should now give him the seat, as, under that state of the case, they could do without disrespect to the great seal of the State. The present sitting member would then become the contestant, in case the matter were further prosecuted ; and if he succeeded in establishing the fact of his election, Mr. D. would cheer- fully unite with gentlemen in the vindication of his right to the seat. The report was adopted, ayes 100, noes 84. Note. — Mr. Brockenbrough's speech will be found in vol. 15 Cong. Globe, page 235 and Mr. Cabell's, same vol. and page. TWENTY-NINTH CONGRESS, FIRST SESSION. "Farlee vs. Eunk, of New Jersey. Where the contestant alleged that the sitting member received the votes of certain college students while absent from their permanent homes. Held by the committee that inasmuch as the students made oaththat they left their last residence animo non revertendi, and adopted their college residence not certain of its duration, and undetermined as to the adoption of any other residence, they were legally entitled to vote. IN THE HOUSE OF REPRESENTATIVES. February 19, 1846. Mr. Dobbin, from the Committee of Elections, made the following report : The proper authorities in the State of New Jersey declared that John Runk, esq., was duly elected on the 5th and 6th,days of November, 1844, by a majority of sixteen votes, to represent the third congressional district of New Jersey in the twenty-ninth Congress of the United States, and gave hjm a certificate of his election, by which he now occupies a seat in the House of Representatives. The memorialist, Isaac G. Farlee, " represents that Mr. Runk's nominal and apparent majority of, the votes of said district was obtained by his receiving the votes of thirty-six individuals, specified in his memorial, who were, at the time of said election, students of the theological seminary at Princeton, New Jersey, and of five who were students in the college of New Jersey, at Princeton, and all in the third congressional district, which were unlawful votes, and ought to be rejected, because, although the above named students were living at Prince- ton for the time being, merely for the purpose of obtaining their education, they were not residents of the district, and could not legally vote at said election ; and also other unlawful votes." From a reference to the memorial of the con- testant, and the depositions introduced by both parties, it will appear that the controversy will be decided by settling two questions : 88 CONTESTED ELECTION CASES IN CONGRESS. 1st. Were the individuals specified in the memorial legal voters 1 2d. If they were not legal voters, for whom did they vote, the contestant or the sitting member 1 Your committee, from a careful examination of the testimony, and the laws and constitution of New Jersey, bearing on the points involved in the case, having arrived at the conclusion that the following individuals, whose deposi- tions were taken by the contestant himself, to wit, E. H. Richardson, W. W. Scudder, E. S. Goodman, J. H. Lorance, A. P. Silliman, R. F. Dennis, W. S. Garthwait, A. Vandewater, D. S. Anderson, A. H. Seely, P. D. Young, E. L. Anderson, Morse Eowell, J. -M. Buchanan, J. S. Heacock; S. Mattoon, G. A. Bowman, James Park, jr., and David Mills, were entitled to vote, submit the following statement to enable the House fully to understand the case. The people of New Jersey held a convention in'June, 1844, and adopted a new con- stitution, which went into operation on the 2d day of September of the same year. (See 1st section, article II.) The following is the article in the new constitution prescribing the qualification of voters : Article II. — Eight of suffrage. 1. Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are, or hereafter may be, elective by the people : Provided, That no person in the military, naval, or marine service of the United States shall be considered a resident in this State by being stationed in any garrison, barrack, or military or naval place or station within this State ; and no pauper, idiot, insane person, or person convicted of a crime which now excludes him from being a witness, unless pardoned or restored by law to the right of suf- frage, shall enjoy the right of an elector. The following is an extract from the proclamation of the governor of New Jersey in reference to the new constitution and certain State elections to take place in October ensuing the date of the proclamation : Now, , therefore, I, Daniel Haines, governor of the said State, in pursuance of the directions of the said act, do hereby declare that the said constitution has been adopted by a majority of the votes of the people of this State ; and that the said constitution will take effect and go into operation on the second day of September next, at and after which all persons will be required to demean themselves according to the provisions thereof. And further, I do hereby direct that an election for such officers as may be required to be elected under and by virtue of the said constitution, be held on the eighth and ninth days of October next, at the places and in the manner now provided by law ; and that at such elec- tion the qualifications of the electors and of the said officers be such as are specified in the said constitution. Given under -my hand and privy seal at the city of Trenton, the twenty -ninth day of August, in the year of our Lord one thousand eight hundred and forty-four. DANIEL HAINES. August 29, 1844. The congressional election took place on the 5th and 6th days of Novembei after the adoption of the constitution, which went into operation in the month of September previous. In order to ascertain whether the individuals mentioned in the memorial oi Mr. Farlee had a right to vote at said election, your committee are of opinior that it is only necessary to inquire if they possessed the qualifications prescribed in the constitution, to wit : Were they white male citizens of the United States'! Had they been residents of the State one year, and of the county in which they claimed to vote five months, next before the election 1 Did they come within tht proviso which refers to persons in the military, naval, or marine service, paupers idiots, insane persons, or persons convicted of crime, and not pardoned ant restored to credit ? It is not pretended that any came within the proviso referred to. It is not pretended that any of them were not citizens of the United States with the exception of William W. Scudder, and the committee decided unani mously that he was a citizen under the act of Congress declaring " that th< CONTESTED ELECTION CASES IN CONGRESS. 89 children of persons who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered citizens." But it is contended by Mr. Farlee, the contestant, that they were not residents as contemplated by the constitution, but students, merely living at Princeton, for the purpose of obtaining an education. The depositions of nineteen persons, students of the college and theological seminary, appended to this report and marked D, taken at the instance of Mr. Farlee, the contestant, have been examined, and your committee are of opinion that they were legal voters. They swear that they were more than twenty- one years of age ; nearly every one swears that he came to Princeton without any intention <3f returning to the place he came from, and with the intention of remaining there until he accomplished the purpose for which he came, either to the college or the theological seminary, and then of going wherever he could find occupation, if he did not find it in Princeton, or wherever he felt it his duty to go. It will be observed, on reading the depositions, that these individuals had all been in Princeton more than one year, and most of them had been there several years before the election ; and that although they were in pursuit of an educa- tion, either in the college or theological seminary, they had many of.them been of age and enjoying the privileges of freemen many years. Reuben S. Good- man says in his deposition, that he is twenty-seven years old ; that he paid his tax in Princeton; that after graduating at the university in the city of New York, he taught school in Rensselaer county ; that he came to Princeton with no intention of returning where he came, from, and that he has resided there since August, 1843. James H, Lorance deposes that he is twenty-four years old, and " has resided in Princeton since May, 1841." A. P. Silliman deposes that he is about twenty-seven years old, entered fhe college in 1842, and has ever since resided in Princeton, and came there without intending to return to the place he came from. Morse Rowell deposes that he resided at New Utrecht previous to coming to Princeton, in 1842, where he had been teaching school between two and three years ; that his parents are dead, and that he is prosecuting his studies and preaching. Joseph S. Heacock deposes that he is twenty-seven years old. Stephen Mattoon deposes that he is twenty-nine years old ; that his parents have been long residing in Michigan ; that he has never been there himself, and came from Kingsbury, New York, where he had been teaching school, with no intention of returning there. George A. Bowman deposes that he is twenty- four years old, and David Mills that he is twenty-seven. The individuals above named were more advanced in years than the other witnesses, the youngest of whom saying in his deposition that he was twenty-two, and are only specified on that account. But in order to do justice to both parties, and to understand the merits of the case, your committee suggest that it is necessary to read all the depositions of each witness. It is alleged by the contestant that the following persons voted whose depo- sitions have not been taken, to wit : Charles Beach, Robert Hammill, Samuel McCulloch, Oscar Park, J. A. Reily, Darwin Cook, A. D. White, D. C. Lvon, T. H. Clelland, N. P. Chamberlain, and J. G. Moore. The depositions of other persons are appended to this report, offered by Mr. Farlee, to prove that the above named persons were students ; that they were of the " whig" party, and that either all or most of them have since left Prince- ton. But no member of the committee expressed the opinion that there was sufficient evidence offered to sustain the memorial of the contestant as to them ; and your committee, without any dissent, have confined themselves to the cases of the students whose depositions were taken. 90 CONTESTED ELECTION CASES IN CONGRESS. But it is further alleged by Mr. Farlee that, on the 13th day of March, 1844, the legislature of New Jersey passed an act in these words : Sue. 7. And be it enacted, That in all cases where any person or persons have left, or shall leave hereafter, their home or place where they reside, to attend any academy, college, theological seminary, or other literary institution, -in any township, borough, or city of this State, for the purpose of obtaining an education or instruction, that absence for such purpose, while so attending such academy, college, or theological seminary, or other literary institution, shall "not constitute a change of the place of residence of such person or persons, so as to make him or them liable to be taxed, or to entitle him or them to vote at any election in such township, borough or city, where such college, academy, theological seminary, or other literary institution is situated. Under this statute, the memorialist alleges that the students were expressly prohibited from voting at said election. Your committee entertain a decided opinion to the contrary; for in the first place, all doubt is at once removed by the conclusive circumstance that the said act was passed the 13th day of March, 1844, stndthe new constitution under which this election was held went into operation in September, 1844; the elec- tion talcing place in November, 1844. The new constitution (the fundamental law) was adopted after that act, and the election was held after the adoption of the new constitution — a constitution, in many respects, more liberal than the old one. In the " schedule," article 10, section 1, of said constitution, is found the following : " The common law, and statute laws, now in force, not repugnant to this constitution, shall remain in force until they expire," &c. Is not the statute excluding students from voting " repugnant to this constitution" which says that * any white male citizen of the United States, of the age of twenty- one years, who shall have been a resident of the State one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote," except certain persons therein enumerated — students not being excepted 1 But a newspaper was exhibited by Mr. Runk, purporting to contain a report of the proceedings of said convention, in which it appears that a member of the convention moved an amendment to the article of this new con- stitution in regard to the " right of suffrage," so as to exclude " students who had taken up a transient residence for the purposes of education ;" and after some discussion, generally denouncing the proposition, the motion was withdrawn. It is proper to state that the reporter of these proceedings was not employed by the convention, and merely reported for the paper in which he was interested ; but that his deposition accompanies the paper, in which he swears that the report is substantially correct ; that his paper was placed on the desks of the members, and that he never heard any complaint against it. The extract of the entire debate relative to this subject is appended to this report and marked C, and will aid in properly construing the new constitution. Tour committee would also remark, that the old constitution of New Jersey required voters to be" inhabitants" of the State, and to have "resided," also, a certain time in the State. The new constitution is different ; and the proceedings of the late convention show that the word "inhabitant" was used in the com- mittee's report, but finally stricken out, and the word "resident" substituted. It was suggested by the contestant that the legislature which sat in 1845 re- pealed that act, and that, therefore, it must have been considered as in force in the fall of 1844. But even that slight circumstance is deprived of any weight when the manner of the repeal is considered. There was no special act passed in 1845, directed particularly to the repeal of that 1th section. But in the act that was passed in 1845 to regulate elections under the new constitution, amongst other acts that were repealed was an act passed in March, 1844, containing nine sections, the seventh section being the one relating to students. Many of the sections were probably " not repugnant" to the " new consti- CONTESTED ELECTION CASES IN CONGEESS. 91 tution," and had to be repealed, and the act that was passed repealed the whole act of nine sections, in general terms, without specifying any particular section. That section of the act was, in the opinion of your committee, clearly repugnant to the new constitution, and, of course, not in force. But even if that statute were still in force, from the depositions of those students in regard to their resi- dence at Princeton — most of them swearing that they left the place they came from animo non revertendi, and that they consider Princeton their residence, and pay taxes there — your committee are not prepared to say that they would be excluded from the right of voting ; for surely the legislature of New Jersey could never have been so unfriendly to the cause of learning as to have meant to exclude students from voting, merely because they were students, whether they were residents or not. The contestant, in his memorial, refers to a decision of the supreme court of New Jersey, and relies on that case as authority on the question of residence. It was the case of Cadwallader vs. Howell and Moore, decided in November, 1840, prior to the adoption of the new constitution. Your committee have examined the report of the case, and read with care the opinion of the learned judge, and are not disposed to question its correctness. The following is the abstract of the case, as made by the reporter : " The residence required in the laws of this State to entitle a person to vote at an election means his fixed domicile, or permanent home, and is not changed or altered by his occasional absence, with or without his family, if it be animo revertendi. A residence in law, once obtained, continues without intermission until a new one is gained." But although the learned judge, in delivering his opinion, says that students of our colleges, and hundreds of others scattered on land and sea, engaged, for the time being, in the prosecution of some transient object, are considered in law as residing at their original homes, he also lays down this to be the law: " The place where a man is commorant may, perhaps, be properly considered as -prima facie the place of his legal residence ; this presumption, however, may be easily overcome by proof of facts to the contrary. If a person leave his original resi- dence animo non revertendi, and adopt another, (for a space of time, however brief,) if it be done animo manendi, his first residence is lost. But if, in leaving his original residence, he does so animo revertendi, such original residence con- tinues in law, notwithstanding the temporary absence of himself and family." From a consideration of the law thus expounded, and of the depositions of the persons who voted, your committee are of opinion that they had a right to vote ; for they swear that they left their last residence animo non revertendi, and adopt Princeton as their residence for a space of time — not very brief, not certain as to its duration — undetermined in their minds as to the adoption of any other particular residence should they choose to abandon Princeton. Your committee suggest that the remarks of the learned judge, in reference to students, may well apply in the cases of, perhaps, a large majority of the young men at Princeton, who went there for a temporary purpose, meaning to return home when that purpose was accomplished. But of the one or two hundred students, the few who voted were, in the opinion of your committee, exceptions, and without the rule, and were permitted to vote by the judges of the election, after a consideration of the objections raised in many of the cases. It may not have been discreet in students .to venture at all into the arena of politics, and it may not have been the most creditable conduct, particularly for students of theology, to refuse to disclose for whom they voted ; but the inquiry of the committee was solely confined to ascertaining whether they had a right to vote. But if the House should be of opinion that they were not legal voters, it will then become necessary to ascertain jfor whom they cast their votes. Messrs. Richardson, Scudder, Goodman, and Lorance acknowledged in their depositions that they voted for Mr. Runk, and Mr. Garthwait that he voted for Mr. 92 CONTESTED ELECTION CASES IN CONGRESS. Farlee ; so that, of the nineteen students who voted, and whose depositions were taken, four acknowledge under oath that they voted for Mr. Runk, and one that he voted for Mr Farlee — leaving the votes of the other fourteen to be ascertained, if possible, by a resort to other testimony. And if it be decided, from the depo- sitions hereunto appended and marked D, that these fourteen also voted for Mr. Runk, it would elect Mr. Farlee by a majority of two votes. The arguments of Mr: Farlee and Mr. Runk, submitted to the committee, are appended to this report, and marked E and F. Your committee, having decided that the votes were legal, resolved to report the case to the House, accompanied with all the depositions taken relative to the political character of the voters, in order that, in the event of a decision by the House that the votes were illegal, its judgment may be at once pronounced on the sufficiency or insufficiency of the proof as to the character of the votes cast. Your committee recommend the adoption of the following resolution : Resolved, That Isaac G. Farlee is not entitled to a seat in this- house as a representative from the State of New Jersey. After a very brief debate the House voted that the contestant was not enti tied to the seat, 119 to 66. Mr. Hamlin, of Maine, then offered a resolution that Mr. Runk, the sitting member, was not entitled to the seat. The vote stood, ayes 96, noes 96. The Speaker, voted no, which left Mr. Runk in his seat. Note.— See vol. 35 Cong. Globe, pages 437, 438, 448, 454, and 456. TWENTY-NINTH CONGRESS, SECOND SESSION. Baker, of Illinois — Yell, of Arkansas. Holding ,an office in the army of the United States is incompatible with holding a seat in Congress. IN THE HOUSE OF REPRESENTATIVES, February 26, 1847. Mr. McGaughev, as a question of privilege, from the Committee of Elections, of whom Hon. Hannibal Hamlin was chairman, to whom was referred, by the resolution of the House, the question of Edward D. Baker's right to a seat as a representative from the State of Illinois in the twenty-ninth Congress, and also the right of Thomas W. Newton to a seat as the representative from the State of Arkansas, in place of Archibald Yell, made the following report : The Committee of Elections, to whom were" referred two resolutions of the House — the first of which was adopted on the 2d [5th] January, 1847, and required the committee to inquire and report whether Hon. Edward D. Baker, a representative from the State of Illinois, having accepted a commission as colonel of volunteers in the army of the United States, and being in the service of and receiving compensation from the government of the United States as such army officer, has been entitled, since the acceptance and exercise of said mili- tary appointment, to a seat as a member of the House of Representatives ; the second, adopted on the 6th day of the present month, by which Thomas W. Newton was admitted to a seat and sworn into office as a member of this Con- gress, and his credentials of election referred to this committee — report : That, under the second resolution, they have inquired into and ascertained the following to be the facts : that Archibald Yell was regularly elected as a CONTESTED ELECTION CASES IN CONGRESS. 93 member of the twenty-ninth Congress from the State of Arkansas ; that some time in the month of July, 1S46, he accepted a commission as colonel of volun- teers raised in the State of Arkansas under an act of Congress approved May 13, 1846 ; that the commission thus accepted was made out by the State authorities, but that Colonel Yell and the volunteers under his command were, in said month of July, mustered into the service of the United States ; that he yet continues in the service of the United States as a colonel, and receives his pay from the government of the United States. And that Thomas W. Newton was, on the 14th of December, 1846, elected a representative in the twenty- ninth Congress from the State of Arkansas. To use the language of his certifi- cate of election, he was elected " to fill the unexpired term of Archibald Yell." The committee have no legal evidence before them that Archibald Yell, at any time before the election of Mr. Newton, resigned his seat as a member of Con- gress. The committee are of opinion that the facts above enumerated present precisely the same question for their consideration, under the second resolution, as is presented by the House in the first resolution ; and therefore it is that the committee have thought it proper to make a joint report upon both resolutions. The committee are of opinion that under the fifth section of the first article of the Constitution of the United States the House has the right to ascertain and decide upon all questions of law and of fact necessary to be ascertained and decided in order to enable it to de'termine upon the right of each individual who may claim to be one of its members. And hence the committee instituted an inquiry into the facts of the case referred to them by the second resolution, for the purpose of ascertaining whether such a vacancy existed, as entitled the people of Arkansas to elect a successor to Mr. Yell. The committee are of opinion that the Hon. Edward D. Baker has not been entitled to a seat as a member of the twenty-ninth Congress since the accept- ance and exercise of the military appointment referred to in the resolution of the House ; and that at the time of the election of Thomas W. Newton there existed, a vacancy from the State of Arkansas, occasioned, by the acceptance by Archibald Yell of a commission to serve as a colonel of volunteers in the army of the United States. The sixth section of the first article of the Constitution of the United States provides that " no person holding any office under the United States shall be a member of either house during his continuance in office." The question then arises, are the offices which have been accepted by these gentlemen offices under the United States, within the meaning of the Constitution? We think they are. If it be urged that the commission is derived from the State authorities, the answer is, that a commission does not confer the office ; it is only the evidence of the right to exercise its functions. The commissions of members of Congress, or, in other words, their certificates of election, are derived from the State authorities. Like the Solonels, whose cases are now under consideration, then- services are rendered to the United States, and they are paid by the United States, but their commissions are derived from the State authorities. It seems to the committee that the question whether the office is held under the United States or under a State, does not depend upon the question who gave the com- mission, made the election, or conferred the appointment, but upon the question, what are the duties to be performed, the government for whom they are to be performed, and to what government is the office responsible for a failure to per- form 1 Testing the offices in question by this standard, and there can remain but very little doubt. These colonels perform like services with those of the regular army. They are responsible to the laws of the United States for the manner in which they discharge the duties of their offices. The committee believe that to hold an office in the army of the United States is incompatible with the office of a member of Congress, and that, therefore, the two offices cannot be held at the same time by the same individual ; that it 94 CONTESTED ELECTION CASES IN CONGRESS.' ■is against the whole theory and spirit of our form of government. The Consti- tution intended that the President should have no power to control the action of Congress in any respect ; that it should be perfectly independent. Now, suppose that every member of Congress were a colonel in the army in the ser- vice of the United States, and the President, who is by the Constitution the commander-in-chief of that army, should come into the halls of Congress and order each individual member to retire immediately, under the penalties inflicted for disobedience of orders, to his post in the army, what would become of Con- gress ? Or suppose, while Colonel Baker was making his speech here this session, as a member, the President had come into this hall and commanded him to be silent, or to retire to his regiment in Mexico ; suppose that in that speech Colonel Baker had spoken disrespectfully of his superior officer, the President, could he not be held responsible before a court-martial 1 To enlarge upon this argument is useless. To allow the two offices to be held by the same person would utterly destroy the independence of Congress, and convert the country into a military despotism. Resolved, That Edward D. Baker lias not been entitled to a seat as a member of the House of Representatives since the acceptance and exercise by him of the military appointment of colonel of volunteers from the State of Illinois, in the service of the United States. Resolved further. That Thomas W. Newton is entitled to a seat as a member of this House from the State of Arkansas. The House did not vote upon the resolutions, as Colonel Baker had, at the previous session, resigned his seat at the commencement of the controversy ; and Mr. Newton was, at the same session, declared to be entitled to the seat previously occupied by Colonel Yell. The House-referred the two cases to the Committee of Elections for a report. The subjoined extracts are from speeches made (February 5, 1847) in the House upon the proposition to refer the cases to the committee : Mr. Cottrell said that the termination of the twenty-eighth Congress vacated every seat in the House of Representatives. At the commencement of the present (the twenty- ninth) Congress, Archibald Yell appeared from the State of Arkansas, which is entitled to only one member in this branch of Congress, was qualified and took his seat. It is not now pretended that Mr. Yell was not properly admitted, and therefore entitled to serve during the whole of the twenty-ninth Congress. These being the facts, a gentleman (Mr. Newton) now comes here and claims to be entitled to a seat — not by contesting or questioning Mr. Yell's election, or his rightful admission here as a member at the time, but on the ground that Mr. Yell is disqualified by his having accepted the office of colonel in a regiment of volunteers now in the service of the United States. This presents the question whether there is a vacancy? For if there be no vacancy, the present applicant, it is clear, cannot be admitted, as there can be no election unless there is a vacancy ; and, also, who is to determine the fact of a vacancy ? Upon each of these questftns he proposed to offer a few remarks. Now, sir, said Mr. Cottrell, on reference to the Constitution of the United States, {article 1, section 2, first clause,) it will be perceived that the tenure of a member of this house is two years. Governor Yell, then, being "qualified" when elected and admitted a member of this house at the commencement of the present Congress, is yet a member, unless he has vacated the office by his death, resignation, or committing some act of disqualification. It is not pretended he is dead, or that he has resigned. The grounds upon which it is con- tended a vacancy has been created are, that Governor Yell has accepted the appointment of colonel in a regiment of volunteers in the service of the United States. Is this an act of disqualification ? and if so, who is to declare the vacancy 1 Who is to find the facts and pronounce the judgment 1 Mr. C. said he agreed that the office alluded to was one of disqualification. There are those, sir, who hold that an officer of volunteers of this grade, though in the service of the United States, was not an officer of the United States in the meaning of the Constitution, but an officer of the State under whose laws he was appointed, and from whose executive he received his commission. These gentlemeu look to the authority whence the appointment and commission emanates to determine the character of the officer — I to the service. It is the service that determines whose officer he is. If in the- United States service, he is subject to the rules and articles of war — to all laws we may enact including" CONTESTED ELECTION CASES IN CONGRESS. 95 them ; this determines the officer to be ours, the officer of the United States pro hdc vice. A State militia officer, mustered into the United States service, ipso facto becomes an officer of the United States, and so continues until discharged from that service. If an officer of the United States, it is clear he is not qualified to hold a seat on this floor. — (Con. V. S., art. 1, sec. 7, clause 2.) Who is to determine this fact ? If Governor Yell is not now a member, it is because he has disqualified himself since his election and admission here to a seat. The gentleman from South Carolina [Mr. Woodward] contends, that as the Constitution declares, in case of vacancy, that the executive authority of the State in which the vacancy occurs shall issue the writ of election, that, therefore, the executives of the States are to determine the fact of vacancy, and that in this instance the executive of the State of Arkansas has deter- mined the matter by ordering an election and giving a certificate to the present applicant. I apprehend, sir, this is a matter of "qualification;" and on turning to the Constitution, (art. 1, sec. 5, clause 1,) I find that "each house shall be the judge of the election returns and qualifications of its own members." If there be a, vacancy, it is because of disqualifi- cation — the commission of some act of disqualification by Mr. Yell. If there be any such commission, the gentleman being a member of this honse, this house must judge of such act, pass upon it, and if they find the fact, declare the vacancy. Mr. C. said, from what he had said it would be understood, that if Mr. Yell has occupied the office referred to, he was prepared to vote it one of disqualification, and the office vacant, and admit the present applicant to his seat upon the executive certificate. But as we have not been officially informed that the facts exist as stated, Mr. C. desired and hoped the matter would go to the Committee of Elections, to ascertain and report the facts to the House, that they might act understandingly. Mr. Schenck said there were two questions which might arise for the consideration of the House not necessarily connected or involved in each other, however, and only one of which they were now called upon to decide. The one was the right of Mr. Newton, the member elect, to take his seat ; the other might or might not afterwards arise whether he would be entitled to hold it, either as against Colonel Yell or any other contestant who might hereafter appear. It was not necessary, perhaps, at this time, to anticipate a decision upon the latter inquiry. On that point, though, his own mind was fully made up. He believed that the former member, by the acceptance of his commission as colonel, and entering the army and service of the government in that capacity, was " holding an office under the United States, " and had disqualified himself from retaining his seat. This had been distinctly decided even in the case of a major of militia, in the instance of John P. Van Ness, of New York, cited by the gentleman from North Carolina, [Mr. Graham.] If true in such a case, how much more forcibly would both the letter and the reason of the constitutional prohibition apply to an officer of volunteers ! This corps of volunteers was an anomalous sort of force in its character ; and there might be doubt yet whether it was allied most nearly to the militia or to the regular army, or identified with either of them. But these are facts. The militia is organized under the laws and institutions and authority of the several States, and when called into service, is called with its complete organization upon it into the employment of the general government. It is created as a part of the military force of the country by State legislation only. And yet, as we have seen, a militia officer, when in the service of the national government, was unanimously held by the House of Eepresentatives, in a former Congress, to have forfeited his right to sit as a, member. But the volunteer force owes its very existence and has its very beginning in the legislation of Congress. The act of last ses- sion originated and created that part of the present existing army. They are employed, pro- vided, and paid by the federal government ; and, by the very terms of that act, they are not only made " subject to the rules and articles of war," but it is declared that they " shall be in all respects, except as to clothing and pay, placed on the same footing with similar corps of the United States army." The honorable gentleman from Illinois [Mr. Douglas] has clearly stated and argued this view of the subject, and I will not follow it up. The House will remember that I presented the same views, and made the argument somewhat more at large, some weeks ago, when I took occasion to offer a resolution of reference and inquiry in the case of Colonel Baker. Neither will I now insist, as might.be done if that branch of the question were necessarily under consideration, upon the utter incompatibility of the two offices — military and legisla- tive. Only take one illustration of the manner in which they might conflict. Suppose, at the same time, the gentleman formerly here from Arkansas should be claimed as a member of this house and as a colonel of volunteers. There might be a call of the House which would require and enforce his appearance here ; while, by his superior in command in the army, he should be ordered to anarch to the storming of Monterey or San Luis. Whom should he obey ? The duties could not be both performed. If he disobeyed us, we should have him in the custody of the Sergeant-at-arms ; if he disobeyed General Taylor, he would be marched under arrest, in charge of a file or platoon of soldiers ! There would be a pretty strife and controversy ! The Sergeant-at-arms would hold on to the truant member; the soldiers would insist upon their forcible possession and control of the person of the deserting colonel ! It would be more than a case where "doctors disagree." It is pretty certain that our legis- 96 CONTESTED ELECTION CASES IN CONGRESS. lative authority and interests would be the most likely to suffer, and be disregarded. To say nothing of the stronger impulses of gallantry, which would be so likely to lead the colonel to the field where glory was to be won, the contest would be a very unequal one. The enforcing penalties greatly differ. The House would but fine the absentee, or at most censure him for contempt of its authority ; a court-martial might order him to be shot. Here was a difficulty not to be possibly reconciled upon any supposition- that the two offices — the two services, military and civil — are at all compatible. But Mr. S. had said he would not argue the dis- qualification of Colonel Yell to hold his seat at this time. He would be glad if that question, as well as the right of Mr. Newton to take the seat, could at once be settled by a direct vote of the House. It was a question which involved the independence of Congress — its independ- ence of executive encroachment or intrusion. He was sorry that the Committee of Elections, to which his resolution, suggested by Colonel Baker's case, had referred the inquiry, had not yet found time to report. He had hoped they would do so before this case from Arkansas, which was also anticipated at the time of offering that resolution, had come up. He hoped they would yet report. But let all that pass now. The immediate question to be resolved is, the right of Mr. New- ton to take his seat at this time, upon the credentials which he has presented. He thought there could be no reasonable doubt of that right — certainly none, if respect was to be paid to the uniform practice of the House in all time heretofore. Mr. S. agreed with the honorable gentleman from South Carolina, [Mr. Woodward,] that while this house was the exclusive judge, under the Constitution, of "the election returns and qualifications" of its own members, there was a difference between that and the judg- ment as to the existence of a vacancy. In this instance there was no question eithei as to the election, the return, or the qualifications of Mr. Newton. Those points were all undis- puted. But was there a vacancy in the representation of his State to be filled? Now, he could not agree with the gentleman from South Carolina, that this house had no judgment at all in that matter to be exercised. There seemed to him (Mr. S. ) to be a concurrent power of deciding that point in the State authorities and in the House. He thought that while the authorities of a State were to determine upon ordering an election to fill a vacancy in their representation here, and thus must necessarily judge as to the existence of that vacancy, this house also was, to some extent, to judge whether there was a vacant seat to be filled. Re- signations were seldom, if ever, announced to the House, but were made to the governors of the States ; and so it was most likely to be, whenever vacancies- occurred from any other cause. The House never certified vacancies to the States in whose representation here they occurred. It was not necessary, any more than it was usual, to do so. And it was never surely intended, or to be apprehended, that upon such failure to certify the State or district should go unrepresented. If that were so, it would be in the power of a member, by leaving the country, or possibly by expatriating himself, swearing allegiance to a foreign govern- ment, or otherwise disqualifying himself, neglecting or refusing to resign, or to even give notice to the House or its Speaker, to deprive his constituents of all benefit of representation. The States, and State authorities, and people, must be expected to look after their own right of representation, and keep it full. For this purpose they must look to vacancies when they should happen in that representation, and hold elections to supply them. They might be trusted,, they always had been trusted to do this. And yet the House must exercise, to some extent, a judgment also in the matter. In this view he saw no difficulty in the objection which troubled some gentlemen, that if left so far to the States or State authorities to judge, two members or more might be sent to fill the same seat. Not so ; or if such a case did arise, it could present no practical difficulty. Take the instance now in hand, to illustrate. The State of Arkansas constitutes one con- gressional district. Mr. Yell (now Colonel Yell) was elected and sent here to represent the people of that State at the commencement of this Congress last session. Suppose he were here in his seat yet, instead of that seat being empty, as it is, and Mr. Newton were to come with his certificate from the governor of Arkansas, accrediting him as a successor to fill the unexpired term of Mr. Yell. The seat being occupied, the House would take notice of that fact. Here, then, would be two gentlemen, each with credentials from the proper authority, each of the certificates good upon its face, and containing prima facie evidence of the right to the seat. The House must determine between these proofs. The presumption would clearly be in favor of the sitting member — the occupying claimant — and the oldest title; the title- papers being otherwise the same and of equal validity. It was upon such superior presumption that the House was continually acting. The first intimation — at least, the first official intimation — the first information upon the record which this house generally had of a vacancy, was the appearance of a successor to fill the unex- pired term of the former incumbent. It was so always in case of a death of a member during the recess. Take the case occasioned in this Congress by the death of a member from Ala- bama, [Mr. McConnell.]_ His successor [Mr. Bowdon] appeared here, at the first of this session, with credentials just like those of Mr. Newton, and was permitted, as he should, have been, and as a matter of course, to take his seat ; and some days afterward, according to usual custom and courtesy, that gentleman made the first official announcement of the death of his predecessor, which had made the vacancy for him to fill. Another honorable gentle- man from Alabama, [Mr. Cottrell, ] he thought, had been peculiarly unfortunate in putting himself forward as an objector to Mr. Newton's admission. That gentleman [Mr. Cottrell] CONTESTED ELECTION CASES IN CONGRESS. 97 had made as able and ingenious an argument against the right of the member elect as the case was capable of; but did it not occur to .him that his own case was an instance directly against him 1 He [Mr. Cottrell] had been elected to fill a vacancy occurring in this very Congress by the resignation of Mr. Yancey ; and the first official notice of that resignation, and the only notice, was contained in the certificate from the governor of his State, which the gentleman himself presented, and upon which, without a question, he had been allowed - to fill the vacant seat. But the gentleman, [Mr. Cottrell,] upon his (Mr. S.) suggesting this to him while he was. speaking, saw that the authority of his own case was clearly against him, and sought to get rid of it by replying, that if he was improperly admitted, it was no reason why Mr. Newton should be. "Two wrongs," he said, "could never make a right." But (said Mr. S.) though two wrongs nor any number of wrongs can ever make a right, yet surely a great many right decisions, uniformly made and concurred in through a long succession of years — indeed, ever since the organization of the government and Congress — ought to be considered as settling the practice and the law, if ever any question could be settled. Such was the action of the House in at least two other instances at this very session of Congress. He alluded to the cases of Colonel Price, of Missouri, and Colonel Davis, of Mississippi, whose successors had been admitted to their seats here without question, and only upon the proof of vacancy contained in the fact of their own election, and in the credentials which they had produced. Cases might be multiplied without end. The prima facie case in such instances had always been considered sufficient and conclusive as to the right to take the seat, what- ever might follow afterwards upon the question as to whether a vacancy had existed to be filled or not. The State determines that for itself, and sends the successor, and the House acts upon the weight of presumption which then arises in favor of the member elect. Now, what were the presumptions in this case ? Here was Mr. Newton, presenting him- self with proper and authentic credentials, in due form, reciting the vacancy which he was elected to fill. It was all the proof we wanted — all the case he needed to make out. The proof and presumption of vacancy was all in his favor ; and there was no sufficient pre- sumption to oppose against that certificate and his right derived under it. It was true the House knew that the seat had formerly been held by Mr. Yell. But that was all. -The House now knew that the seat was in fact empty ; that Mr. Yell had left his place in fact before the end of last session, some time in June or J.uly, perhaps, and had never oecupied the seat since. It happened to be notorious, also, whether we had or had not yet official knowledge of the fact, that he had become a colonel in the service of the government, and was now with the army in Mexico. Moreover, it was also the fact, he believed, in the case of Colonel Price, that he had settled with the Sergeant-at-arms for his pay as a member of Congress up to the day of his leaving here last session, and had never claimed a dollar since. He had not, like some other gentleman, in like case, continued to draw his pay as a mem- ber after the time of his leaving Washington. But it was unnecessary to multiply these presumptions in favor of the vacancy. In the absence of Colonel Yell, the certificate of the governor of Arkansas, presented by Mr. Newton, was enough, and was to be taken as evidence of the fact. These other circumstances were only cumulative proof for the House to consider, if necessary, corroborating the fact established by the production of these last credentials. Mr. S. concluded by expressing a hope that the House would not, by refusing Mr. Newton his seat, or to be admitted to be sworn in immediately, do anything that might look like a disposition to disturb a wholesome, reasonable, clear, and long-settled practice of this house. [It now appeared by an official statement, made in reply to a call of the House by the Adju- tant General, of the names of members of Congress who had received commissions and been mustered into the service of the United States, that Archibald Yell was among the number. As soon as this document was read, members withdrew all opposition.] The previous question was moved by Mr. Norris and seconded. The main question was ordered. The amendment of Mr. Thomasson was agreed to ; and thus amended, the resolu- tion was adopted. Mr. Newton was then qualified and took his seat. THIRTIETH CONGRESS, FIRST SESSION. Committee of Elections. Mr. R. W. Thompson, Indiana. Mr. Jenkins, New York. J. Mullin, New York. Van Dyke, New Jersey. L. B: Chase, Tennessee. Roman, Maryland. N. Boyden, North Carolina. In the second session Mr. Inge, of Alabama, and Mr. Williams, of Maine were added to the above. H. Mis. Doc. 57 7 98 CONTESTED ELECTION CASES IN CONGRESS. Monroe vs. Jackson, of New York. Where paupers voted for the sitting member, they having been admitted to the almshouse from another congressional district, the committee held that the previous residence of such paupers was their legal residence. IN THE HOUSE OF REPRESENTATIVES, March 25, 1848. The Committee of Elections submitted a report to the House, from which the main facta are quoted below. The following facts are admitted by the parties in this case, to wit: First. That the sixth congressional district of the State of New York is composed of the following wards in the city of New York, divided, respectively, into election districts, to wit : The eleventh ward divided into six districts. The twelfth ward divided into two districts. The fifteenth ward divided into four districts. The sixteenth ward divided into five districts. The seventeenth ward divided into five districts. The eighteenth ward divided into three districts. Second. That an election for representative in Congress for said district was held on the 3d day of November, 1846, at which the sitting member, David S Jckson, and the contestant, James Monroe, were opposing candidates. Third. That at said election, and from the returns of the several election districts of the several wards, David S. Jackson received a majority of votes over James Monroe of one hundred and forty-three. Fourth. That the number of votes returned from the third election district of the eighteenth ward was as follows : For the sitting member, four hundred and sixteen, and for the contestant, one hundred and eighty-one. Fifth. Tbat the sitting member was, at the time of such election, president of the board of aldermen of the city of New York, and that the officers and keepers of the almshouse and city prison are appointed by the authorities of said city. Sixth. That David S. Jackson was, at such election, the regular candidate of the democratic party, and James Monroe the regular candidate of the whig party. Seventh. That Norman B. Smith was also a candidate of the same party that nominated David S. Jackson for a seat in the assembly of the State o New York, and was also an officer in the almshouse of the city. Eighth. That Moses S. Jackson, a brother of the sitting member, was, at the time of such election, an assistant alderman of the said eighteenth ward. These are the material admissions of the parties, which become important in a subsequent part of this case. In addition, the contestant alleges : First. That one hundred and sixty-three paupers, and upwards, from the almshouse and hospital, in the eighteenth ward in the city of New York, voted at the third election district of said eighteenth ward for the sitting member, which paupers had not been admitted to said almshouse from the said third district of said eighteenth ward. This is denied by the sitting member, who alleges that he is informed, and believes, that about one hundred electors, then ''residing and having their actual residence" in said third district of the eighteenth ward, did vote at said election in said district and ward ; but that he does not know for whom they voted. He has been informed, and believes, that a portion of them did vote CONTESTED ELECTION CASES IN CONGRESS. 99 for himself and a portion for the contestant. He does not know the ward or district from which they were admitted to the almshouse, but believes that they resided in said district and ward before they became inmates of the almshouse, and had been in the habit of voting there. The contestant also alleges : Second. That nine persons, who were paupers in said almshouse on and previous to said election, voted in the second election district of the twelfth ward for the sitting member ; and that none of said paupers resided in said district before they were admitted to said almshouse. This is also denied by the sitting member, who alleges that some persons, originally from the said almshouse, and who had gone thence, in the spring of the year 1846, to a farm on Randall's island, in said second district of said twelfth ward, where they were then engaged in tilling said farm under the direction of Moses G-. Leonard, almshouse commissioner of the State of New York, did vote at said second election district of said twelfth ward, at said election. He does not know for whom they voted. He insists that they were residents of said twelfth ward ; that they were challenged at the time of, offer- ing their votes, and were only admitted to vote after having taken the prelimi- nary oath required by the laws of New York, having answered all questions put to them -by the inspectors, and having taken the final oath required by the constitution of the State of New York. The contestant also alleges : Third. That from twelve to twenty-four persons who were, at the time of said election, convicts, undergoing punishment at the city prison on Blackwell's island, voted in the second election district of the twelfth ward for the sitting member. The sitting member denies that said number or any other number of persons were brought from the prison on Blackwell's island and voted for him at said election. The contestant also alleges : Fourth. That on the night previous to the said election between three and lour hundred persons were taken from Blackwell's island on board of a sloop and located principally in the eleventh ward, with a view to their voting ; and that all or many of them did vote at said election for the sitting member, when none of them were entitled to vote in said congressional district. This is expressly denied by the sitting member. The contestant also alleges : Fifth. That eight or more foreigners, who were not entitled to vote, voted at the first election district of the twelfth ward for the sitting member. This is denied by the sitting member. The contestant also alleges : Sixth. That five or more foreigners, who were not entitled to vote, voted for the sitting member at the second election district of the twelfth ward. This is denied by the sitting member. The contestant also alleges : Seventh. That eight or more persons, not residents of the sixth congressional district of New York, voted in the twelfth or some other ward of the said dis- trict for the sitting member. This is denied by the sitting member. The contestant also alleges : Eighth. That five or more illegal votes were cast for the sitting member in the sixteenth ward, of a district not specified. This is denied by the sitting member. The contestant also alleges : Ninth. That one of the inspectors of the fifth election district of the sixteenth ward was absent during a great portion of the day of election ; and that many 100 CONTESTED ELECTION CASES IN CONGRESS. persons who were brought to said poll to vote were challenged, and refused to take the oath prescribed by law as to their right to vote ; and that when the inspector referred to was away from the polls said persons were illegally admit- ted to vote by the remaining inspectors. The sitting member alleges that he has no knowledge or information in rela- tion to this charge, but admits that he has heard that (for a few minutes during the day) one of the inspectors in said district was necessarily absent, and insists that this should not invalidate the election in that district. He denies that any persons who had been challenged and refused to take the necessary oath were afterwards admitted to vote in said district. The contestant also alleges : Tenth. That an inspector of the first election district of the twelfth ward de- clared, after the election, that he " got two votes for Jackson ; one by letting a ballot drop in the box when the vote was challenged, knowing him not to be a voter ; another in canvassing the votes, when Jackson's name was evidently erased, and said it was only blurred." The sitting member declares that he has no knowledge or information in re- lation to this charge. The contestant also alleges : Eleventh. That the sitting member was, at the time of said election, president of the board of aldermen of the city of New York, and that the officers and keepers of the almshouse and city prison are appointed by the authorities of said city. The sitting member admits that he was the president of the said board of aldermen at the time of said election, but says that the said officers and keepers had chiefly, if not in every instance, been appointed previous to his election as president of the board. The contestant also alleges : Twelfth. That Norman B. Smith was, at the time of said election, a candidate for the assembly of New York, and also an officer in said almshouse ; and that he was the candidate of the party which nominated the sitting member. This is admitted by the sitting member. The contestant also alleges : Thirteenth. That one of the inspectors of elections of the third district of the eighteenth ward was appointed and qualified after the board of inspectors had organized and the balloting had commenced, and before the paupers had voted. That said appointment was made by the alderman or assistant alderman alone, . who was a brother of the sitting member. The sitting member denies that the appointment was made under the circum- stances here charged. He admits that his brother was an alderman in said ward, and insists that if the appointment was made as charged, the election would still be valid, as there were two other competent inspectors. The contestant also alleges : Fourteenth. That the inspectors of election of said third district of the eigh- teenth ward, or a majority of them, admitted the paupers from the almshouse to vote because the said paupers " considered the almshouse their residence." The sitting member denies that any decision was made by the inspectors in said district in regard to the right of the paupers generally .to vote, but insists that when each one offered his vote it was refused, unless it appeared that he was then an actual resident in said ward. The report continues : The first question to which the committee think it necessary to turn their attention is that which arises under the law of New York, as to the right of the inmates of hospitals and almshouses to vote. That law provides that "no person shall be deemed to have lost or acquired a residence by being a student CONTESTED ELECTION CASES IN CONGRESS. 101 in a college, academy, or any seminary of learning; nor by living in a poor- house, almshouse, hospital, or asylum, in which he shall be maintained at the public expense," &c. The plain meaning of this language is this : That the inmate of an almshouse, hospital, &c, neither loses the residence he had before he went there, nor acquires a new one by going there. He votes, therefore, upon his former residence — that is, in the district or ward where he lived before he became an inmate of the almshouse or hospital. He can under no circum- stances be permitted to vote upon his almshouse or hospital residence. The' committee are not aware that this position is seriously questioned. Independent of all legislation, these persons were not voters in the district in which the almshouse and hospital were located by reason of their residence therein. By the common law, living in an almshouse, or other place of public charity, for any length of time, would not create a residence, or give the pauper the rights of a resident in the town, ward, or city in which such charity is situated. The committee reported the subjoined resolutions : • Resolved, That David S. Jackson is not entitled to his seat in this house, as a represent- ative from the sixth congressional district of the State of New York. Resolved, That James Monroe is entitled to the seat now occupied in this house by David S. Jackson, as a representative from the sixth congressional district of the State of New The Congressional Globe gives the following report of the debate upon the report : Mr. Thompson, chairman of the committee, proceeded to state the facts of the case, and the reasons why a majority of the committee had reported in favor of the contestant, James Monroe, and against the sitting member, David S. Jackson. The contestant's case was principally based on an allegation that upwards of one hundred and forty-three paupers, from the almshouse and hospital in the eighteenth ward of the city of New York, voted at the third election district of that ward, from which they had not been admitted to those institutions, and where, it was argued, they consequently were not resi- dents, and not entitled to vote ; and that these, together with several convicts from Black- well's island, and some other illegal votes, counterbalanced the majority of one hundred and forty-three votes, which the returns showed the sitting member to have received, leaving Mr. Monroe a majority of fourteen. The minority of the Committee of Elections reported in favor of the right of Mr. Jackson. The right of paupers to vote was examined and maintained, n view of the laws and consti- tution of the State of New York ; and the facts and the testimony on which the contestant maintained his claim were reviewed, and deemed insufficient to unseat the sitting member. Mr. Murphy said, the conclusions to which he had arrived, after a most careful examina- tion of the case and the evidence, were so different from those of the majority of the commit- tee reporting, and so conclusive to his own mind, that he would venture to lay them before the House. He might add another reason why he should trespass on the time of the House. It was because he had observed the most studious efforts made to prejudge this case — he Would not say in this house, but through the public prints. These efforts had been made in every direction. From this source we have heard it repeated over and over again that immense frauds were perpetrated in the congressional district, the right of whose, representa- tive to a seat on this floor is now contested. It had been charged that -even convicts were taken'from the State prison and permitted to vote in this district. Not only had the con- testant himself indulged in making this charge, but the majority of the committee, in their report, (notwithstanding the protestations of its chairman, Mr. E. W. Thompson, ) have even gone out of their way to say that frauds of this kind .have been perpetrated. He asserted that there was no case of fact in the evidence to warrant such a charge, either on the part of the contestant or the committee. But, on the contrary, there was ample proof that no such frauds were perpetrated at all, much less in the district at the election under consideration. To sustain this affirmation, he quoted from the report and printed evidence a number of extracts, all going to show, from an investigation before the grand jury of the city of New York, (where these alleged election frauds were made a subject of presentment immediately after the election, ) that there was not a particle of proof to sustain the charge ; but that, on the contrary, the fraud that was attempted was detected and prevented ; and no such illegal voting as was charged did actually take place. He felt it his duty to say thus much, not only in justice to the sitting member, but to his State,- where, though there were unprincipled men, as elsewhere, who might meditate an outrage on the ballot-box, there were also vigilant officers and citizens enough to prevent the successful perpetration of such frauds. Mr. M. then went into an examination of the general facts of the case, stating first, par- ticularly, that he disagreed with the majority of the committee both as to the law and the facts ; and adding, that, as he understood the renort. the chairman of the committee was 102 CONTESTED ELECTION CASES IN CONGRESS. incorrect in his statement that the minority of the committee agreed with him as to the con- struction of the law. He then read the suffrage qualifications . by the constitution of the State of New York, which provides also where the elector shall vote. The qualifications of a voter are that he must he a free white male citizen, twenty-one years of age, a resident of the State one year and of the county six months. With these qualifications he has a right to vote, and he must vote in the town or ward in which he actually resides, and not elsewhere. This provision of the constitution speaks of the residence of the voter in the State and county, and makes a distinction between this and the place where he actually resides. The former was his resi- dence in legal intendment, the latter the place where he happened to be at the time of the election. The latter was not a qualification for voting, but a direction where a qualified voter should vote. Mr. M. then proceeded to deny the power of the State legislature, to change, a constitu- tional provision, and to show that the law of New York of 1842, which provides that no person shall be deemed to have acquired or lost his residence by remaining at school, con- signment to an almshouse, or service in the army or navy, &c, was, in case it was construed to prevent a pauper in the almshouse from voting in the district where the almshouse was situated, who had been an inhabitant of the State for one year and a resident of the county six months, in conflict with. the New York State constitution — giving several cases by way of illustration — and was therefore pro tanto void. It was not contended by the minority that these paupers acquired a legal residence by being in the almshouse. They contended only that the almshouse was their actual residence. The constitution of New York intended to give all free white men, rich or poor, the right to vote ; and a free black may vote if he possesses a freehold of the value of §250. He then proceeded to show that even if the paupers were not entitled to vote, the sitting member still held a just claim to his seat. Because of an error in the figures of the majority report, he showed that the result should have been stated at 152 pauper votes for Jackson, instead of 157. The committee had charged Jackson, the sitting member, in the first place, with 162 pauper votes ; they then admitted that five of these had voted for Monroe, the con- testant. They deducted five from the 162 and charged Jackson with 157, but neglected to charge Monroe with five, or, what is the same, to charge Jackson with a net pauper vote of 152. This left Monroe's majority only nine, according to the figures of the committee. Having taken off these five pauper votes, he proceeded to look at the balance, and showed how the 152 pauper votes were made up, making copious reference to the printed evidence, and criticising Mr. Eell's testimony in relation to these pauper voters designated in schedule C of the printed testimony. He showed that John McGowan, (or McGovern, ) William Har- rison, James Morrill, George Carr, and Daniel Moran — five names proved beyond question to be charged against the sitting member — were not in the almshouse at the time of the elec- tion, but had been discharged several weeks before the election. He mentioned also other seven names of this schedule, charged against the sitting member, who were never in the almshouse at all. He proposed to throw three of these out of the question, in consequence of imperfections in the almshouse register. Others were charged against the sitting member who were not admitted to the almshouse till after the election, and thus he added two names which he proposed to throw out of the question. He proceeded in these examinations to the close of the hour, showing in the total twenty votes thus improperly charged against the sit- ting member, which result would still leave him a majority of votes, the legality of which must be admitted by all. The House sent the case back to the people, giving the seat neither to the sitting member nor the contestant. The vote stood 104 to 91. Note. — See vol. 18, p. 643, Congressional Globe. THIRTIETH CONGRESS, SECOND SESSION. H. H. Sibley, of Wisconsin Territory. The territorial government of Wisconsin was not merged in the State government, after- wards formed, but continued to have a legal existence over that Territory not embraced within the limits of the State after the admission of the State into the Union. IN THE HOUSE OF REPRESENTATIVES, January 2, 1849. Mr. Eichard W. Thompson, from the Committee of Elections, made the fol- lowing report : The act providing for the original organization of the Territory of Wisconsin was passed on the 20th April, 1836, and under this organization the Territory extended beyond the Mississippi river, and included the m-esent State nf Inwa. CONTESTED ELECTION CASES IN CONGRESS. 103 The Territory of Iowa was formed by an act passed June 12, 1838, out of all that part of the Territory of Wisconsin west of the Mississippi river. By an act passed August 6, 1846, the people of the Territory of Wisconsin were authorized to form a constitution and State government, with a view to admission into the Union. This act fixed the following boundaries for the State of Wisconsin, to wit : " Beginning at the northeast corner of the State of Illi- nois, that is to say, at a point in the centre of Lake Michigan where the line of forty-two degrees and thirty minutes of north latitude crosses the same ; thence, running with the boundary line of the, State of Michigan, through Lake Michi- gan, Green Bay, to the mouth of the Menomonie river ; thence up the channel of said river to the Brul6 river ; thence along the southern shore of Lake Brule, in a direct line to the centre of the channel between Middle and South islands, in the lake of the Desert ; thence in a direct line to the headwaters of the Montreal river, as marked upon the survey made by Captain Oramm ; thence down the main channel of the Montreal river to the middle of Lake Superior ; thence through the centre of Lake Superior to the mouth of the St. Louis river; thence up the main channel of said river to the first rapids in the same, above the Indian village, according to Nicollet's map ; thence due south to the main branch of the river St. Croix ; thence down the main channel of said river to the Mississippi ; thence down the centre of the main channel of that river to the northwest corner of the State of Illinois ; thence due east with the northern boundary of the State of Illinois to the place of beginning, as established by 'An act to enable the people of the Illinois Territory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States,' approved April eighteen, eighteen hun- dred and eighteen." Pursuant to the provisions of the aforesaid act of August 6, 1846, the people of Wisconsin formed a State constitution, in the first article of which provision was made for a change of boundary, with the consent of Congress. This con- sent was given by the act of March 3, 1847, which fixed the boundary as fol- lows, to wit: "Leaving the boundary line prescribed in the act of Congress entitled 'An act to enable the people of Wisconsin Territory to form a consti- tution and State- government, and for the admission of such State into the Union,' at the first rapids in the river St. Louis ; thence in a direct line south- wardly to a point fifteen miles east of the most easterly point in Lake St. Croix ; ■thence due south to the main channel of the Mississippi river or Lake Pepin ; thence down the said main channel, as prescribed in said act." The Territory of Wisconsin remained with these boundaries, and under the organization provided in the act of April 20, 1836, until the passage of the act ef May 29, 1848, entitled "An act for the admission of Wisconsin into the Union." This act changed the boundary as consented to by Congress in the act of March 3, 1847, and admitted the State of Wisconsin into the Union, with the boundaries prescribed by the act of August 6, 1846. Thus the northern boundary of the State is the St. Croix river. By the adoption by Congress of the St. Croix river as the boundary, a por- tion of the inhabitants who had enjoyed the advantages of the territorial government of Wisconsin were left out of the State of Wisconsin. This num- ber is represented as about four thousand, embraced within the limits of a judi- cial circuit and a complete county organization. They had participated in the election of a delegate to Congress, under the act organizing the Territory, and were, at the passage of the act of May 29, 1848, represented in Congress by the Hon. John II. Tweedy, who was, at that time, the delegate from the whole Territory. This gentleman — to remove any doubts that might exist as to the tenure of his office — resigned his seat as delegate on September 18, 1848. On the 9th day of June, 1848, the regularly elected representatives from the State of Wisconsin took their seats as members of the House of Representatives. It 104 CONTESTED ELECTION CASES IN CONGRESS. will be seen, therefore, that the inhabitants who reside beyond and north and west of the St. Croix river were left without representation in Congress. They have supposed themselves entitled to and have ever since enjoyed the. benefits of the organic law provided for the government of the Territory of Wisconsin. That portion of country is now known as the Territory of Wis- consin. It could not be otherwise known, for that name having been originally given to it by act of Congress, it can assume no other. Before the admission of the State into the Union, the Hon. Henry Dodge was the governor of the Territory, and the Hon. John Catlin secretary. By the act of April 20, 1826, it was provided that, upon the death, removal, resig- nation, or necessary absence of the governor, the secretary shall perform the duties of that office. Upon the election of Governor Dodge, therefore, to the Senate of the United States, Governor Catlin became the acting governor for the Territory. He accordingly fixed his residence at Stillwater, which is situated within the Territory not embraced in the State, and beyond the St. Croix river. Deeming it his duty to do so, and the people of the Territory thinking themselves entilled to a delegate in Congress, he issued his proclama- tion, as secretary and acting governor, from Stillwater, on the 9th day of Octo- ber, 1848, ordering a special election on the 30th October to fill the vacancy occasioned by the resignation of the Hon. John H. Tweedy. The authority to order this election was given to the governor of the Territory by an act of the territorial legislature, approved Maich 7, 1839. Pursuant to this proclamation, an election was held at Stillwater on the day appointed, which resulted in the election of Henry H. Sibley, esq., who now claims to be the delegate from that Territory. He has presented to the House, and the House has referred to this committee, the certificate of his election under the hand of Governor Catlin, with the seal of the " Territory of Wisconsin" attached. The question presented by this state of facts, and referred by the House to the committee, is as to the right of Mr. Sibley to his seat ; and to this question the committee have directed their investigations. There is no provision made in the Constitution of the United StateB_for the election of delegates from any of the Territories of the United States, or for giving the right of representation to any but the States. It has, however, been the invariable practice of the government to grant to the people of the' Territo- ries this privilege, and no territorial or temporary government has been estab- lished without it. It is a custom so well established as to have assumed almost the force of law. So far, therefore, as the mere question of right is involved the committee perceive no good reason why the people of the present Territory of Wisconsin are not as much entitled 1o it as those of any other Territory have been or can be, unless there should be found to be something in the acts of Congress taking it from them. That it was conferred upon them, in common with the other inhabitants of the then Territory of Wisconsin, by the act organ- izing that Territory, is perfectly clear. Having been once conferred and enjoyed, the House of Representatives will scarcely consent to take it away, unless the enjoyment of it now shall operate against the public interest, or shall conflict with some existing provision of law. The committee can well conceive hnw any portion of ihe citizens of the United States may deprive themselves of the right of representation in Congress, by voluntarily going beyond the limits within which Congress has said that this right may be enjoyed ; but they can scarcely suppose it to be possible that these limits, when once formed and fixed, would be narrowed so as to exclude any portion of those embraced in them. The people of the present Territory of Wisconsin once enjoyed the right of representation in Congress. This right was conferred by act of Congress. They aided in the election of a delegate, in making laws for the whole Territory, and in the formation of a constitution for the present State of Wisconsin. They CONTESTED ELECTION CASES IN CONGRESS. 105 did all this under the belief that they were thereby preparing themselves for the full enjoyment of a State government under the constitution of the United States. But Congress, by the act of May 29, 1848, deprived them of these advantages, and placed them beyond the limits of the State. There was, how- ever, no attempt to take from them any of the rights to which they were enti- tled as citizens of the Territory of Wisconsin, which they unquestionably were after the admission of the State of Wisconsin. The act of May 29, 1848, repealed no part of the existing organic law of the Territory. That law, there- fore, was left in force over all that part of the Territory not embraced within the State, unless by the mere fact of organizing the State it was abrogated and annulled. The committee do not think that such could have possibly been its effect, and they will briefly state their reasons for this conclusion. The ordinance of July 13, 1787, "for the government of the Territory of the United States northwest of the river Ohio," secured to the citizens of that Ter- ritory, and to those who should thereafter become citizens, all the forms of civil government, the perpetual enjoyment of " the benefits of the writ of habeas corpus, and of the trial by jury ; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law." Under this compact between the original States, and the people and States in the said Territory," which Congress declared should " forever remain unalterable, unless by common consent," it is not perceived how it is possible that any portion of the inhabitants of said Territory should be deprived of any of these rights, without their consent, after they have been once acquired. Thus, to deprive them would be to dissolve their society into its original ele- ments, and to substitute anarchy and disorder for a government of laws. Nothing can be further than this from both the purpose and policy of our gov- ernment. The abrogation of a law is by the enactment of some other law in conflict with it. It is alone by this antagonism that it is made a nullity, unless it be so declared by positive repeal. Here then was no repeal — the act admitting Wis- consin as a State leaving the remaining inhabitants of the Territory to enjoy all their legal rights then existing. Nor is there any conflict between the State government of Wisconsin and the government of the Territory of Wisconsin. The two governments operate upon different people — people who were once the same, but who have become different by the act of creating the two govern- • ments. Each exists within a sphere wholly separate and distinct. The juris- diction of one does not, in any degree, interfere with the jurisdiction of the other. The committee, therefore, are of opinion that the provisions of law for the organization of the original Territory of Wisconsin were left in force beyond the St. Croix river, by the act admitting the State of Wisconsin into the Union, and that the inhabitants there are entitled to all the benefits conferred by that act. If they doubted about the law of the case, their conclusion would be the same ifthey were left to derive it from the intention of Congress. Looking at the sev- eral acts fixing the boundaries of Wisconsin, and that admitting the State into the Union, it will be readily concluded that Congress must have known that there were inhabitants of the Territory beyond the St. Croix river. Could it have been possible that, knowing this, a government already existing over them would have been destroyed 1 Congress could not so have intended, even had they the power to do so underthe ordinance of 1787. The omission of Congress to take any action on the subject of a new territorial government, for the people inhabiting the residuum of the Territory, and the absence of a repealing or modi- fying clause in the act for the admission of the State, are conclusive proofs that t was not the intention of Congress to make the organic law inoperative in the egion not comprised within the limits of the State. And such has been the construction put upon it, as the committee learn, by the executive department 106 CONTESTED ELECTION CASES IN CONGRESS. of the government. The committee have had laid before them the opinion, upon this subject, of the distinguished gentleman at the head of the State Department, and find that he concurs with that which they have expressed. Acting upon the authority of this opinion, the officers of the present Territory have regarded themselves as entitled to hold their offices under their original appointment, made before the State of Wisconsin was formed. Such has been the uniform practice of the government when similar questions have arisen. When, by the act of June. 12, 1838, the Territory of Wisconsin was divided, and that of Iowa formed out of the portion lying west of the Mississippi, a judge who had resided west of that river removed and fixed his residence east of it. He continued afterwards to act as judge in the Territory of Wisconsin, to which he had removed, with- out further appointment or qualification, and was regarded by the President of the United States, Mr. Van JBuren, as legitimately entitled to do so. These opinions of the executive department of the government show that the division of a Territory has at no time been regarded by the government as a destruction of its component parts. The residence of the officer, before he assumes his territorial duties, does not in any way affect the question. A citizen of any State may be appointed to office in a Territory, without any previous residence there. All that the Con- stitution of the United States requires is that he shall be a citizen of the United States. Governor Oatlin and the other officers of the Territory of Wisconsin, before the admission of the State, had the legal right to remove beyond the St. Croix river, and to hold their offices there as officers of the new Territory. Of this the committee do not entertain any doubt. An opposite conclusion would not only disfranchise those inhabitants beyond the St. Croix, but deprive them entirely of the benefits of the government which Congress had already provided for them. This the committee do not suppose that Congress had the power or wish to do. Although it is not a case in all respects like the one now before the committee, yet the case of Paul Fearing, which was settled by the House of Representatives, at the 2d session of the 7th Congress, is somewhat analogous to it. That case was as follows : Ohio was admitted into the Union as a State, by act of Congress passed May 1, 1802. On the 6th December, 1802, Paul Fearing took his seat in the House of Representatives as a delegate from the Northwestern Territory, elected before the passage of the act authorizing the admission of the State into the Union. Subsequent to this time, on the 24th January, 1803, a resolution was introduced, declaring that Mr. Fearing was not entitled to hold his seat, inasmuch as he had been elected a delegate by the inhabitants of the Territory of which Ohio constituted a part. This resolution was referred to the Committee of Elections, by whom a report was made in favor of Mr. Fearing's right to his seat. The report of the committee was not brought to a final vote, but being laid on the table, Mr. Fearing retained his seat ; the House thereby affirming the principle that '' the erection of a Territory into a State does not necessarily vacate the seat of the delegate. Had Mr. Tweedy chosen to retain his seat as a delegate from the Territory of Wisconsin, his case would have been a parallel one with that of Mr. Fearing ; and the committee suppose that the House, recog- nizing the principle then settled, would have permitted him to retain his seat until the close of the present Congress, as the representative of those who have elected the present claimant. The right of Mr. Sibley is precisely the same, ex- cept so far as it may involve the authority of Governor Catlin to order, and of the other officers' of the present Territory to conduct the election. That they had such right, the committee have already shown. The committee are not informed whether or no there had been an election of representatives from the State of Ohio at the time of the settlement of the ques- tion in Fearing's case. They apprehend, however, that if there had been, they CONTESTED ELECTION CASES IN CONGRESS. 107 would have been permitted to take their seats, and that this would not have deprived Fearing of his right, inasmuch as the right had been acquired before the State was formed. The representative from the State, and the delegate from the Territory, might each have held his seat without any conflict. The prin- ciple upon which such a case rests is the impracticability of destroying the right of the people to representation after it has been conferred by act of Con- gress. Besides the views thus submitted to the House, there are high considerations of policy favoring the admission of the delegate from this Territory. Within a few months the government has invited settlers to emigrate into this new region of country, by opening an office for the sale of lands. Thousands of acres have been sold, and the population is rapidly increasing. It is not, therefore, to be supposed that the government will now withdraw from them the protection of law. Indeed, the committee think that it is bound by every obligation of good faith to give them the blessings of a continued and regular government. Entertaining these views, the committee report to the House, for its adoption, the following resolution : Resolved, That Henry H. Sibley be admitted to a seat on the floor of the House of Repre- sentatives as a delegate from the Territory of Wisconsin. The House on January 15, 1849, adopted the resolution reported by the com- mittee without debate — yeas, 124, nays 62. THIRTY-FIRST CONGRESS, FIRST SESSION. Committee of Elections. Mr. Strong, Penn. Mr. Harris, of Tenn. Harris, of Ala. McGaughey, Ind. Van Dyke, N. J. Ash, N. C. Disney, Ohio. Andrews, N. Y. Thompson, Ky. Hugh N. Smith, of New Mexico. Mr. Smith presented himself as the choice of the people of New Mexico for delegate in Congress. The committee, upon the ground that no territorial government had been estab- lished over New Mexico — that the State of Texas claimed a part of this Territory — and finally that at the time of his election Mr. Smith was a citizen of Santa Fe\ held that New Mexico was not entitled to a delegate in Congress, and recommended that Mr. Smith be not admitted. The House laid the whole subject on the table, and Mr. Smith was not admitted. IN THE HOUSE OF REPRESENTATIVES, April 4, 1850. Mr. Strong, from the Committee of Elections, made the following report : The facts which are necessary to a just consideration of the case presented may be briefly stated as follows : The province or department of ~N$w Mexico is a part of that territory recently ceded, to the United States by the treaty of Guadalupe Hidalgo, and before the cession was a department known to the Mexican constitution, and entitled to representation in the Mexican Congress. It had also its departmental legislature. In the Mexican federal constitution of 1824 it was recognized as one of the territories of the republic, with known boundaries, and in the subsequent Mexican constitutions of 1836 and 1843 it 108 CONTESTED ELECTION CASES IN CONGRESS. was made one of the departments of the republic, and as such sent one repre- sentative to the national Congress, and was subordinately governed by its own legislature. The department was subdivided into seven districts or counties, five of them embracing territory both upon the east and west sides of the Eio Grande, and two of them being wholly upon the east side of that river. At the date of the cession, therefore, New Mexico had a complete, political organi- zation. It is not claimed, and certainly it could not justly be, that this organ- ization continued after the cession of the territory to the United States. New Mexico was acquired, not as a political division, not as a State or a Territory, but as a part of a large tract of country, the title to the sovereignty of which, and to the unappropriated lands, was by the treaty transferred from Mexico to the United States. Upon that transfer all political laws, all governmental or- ganizations, ceased to have any legal existence. These facts are, therefore, only stated because an argument is deduced from them in favor of the admission of the memorialist. Your committee have found difficulty in ascertaining the extent of territory and the number of inhabitants embraced within the limits of New Mexico. Before the Texan revolution, the area of the department was about two hundred thousand square miles, of which about one-third was west of the river Eio Grande, and the remaining two-thirds were upon the eastern side. The population of the whole is variously estimated at from eighty to one hundred thousand, of which more than two-thirds are residents of the eastern bank of the river. It is, however, well known that the State of Texas claims as within her limits all the territory east of the Rio Grande, and the validity or invalidity of this claim has never been definitely settled. After the cession of the territory to the United States, New Mexico, or at least part of it not em- braced within the limits of Texas, was, and continues to be, without any form of civil government. Lieutenant Colonel Washington was stationed there as a military commandant, but no political organization known to our laws, and none even in fact, had any existence. On the 21st day of August, A. D. 1849, in accordance with public notice previously given, a considerable number of the citizens of Santa Fe county (one of the counties lying wholly on the east bank of the Rio Grande) assembled in the city of Santa F6, to consult upon the propriety of organizing a suitable territorial government. At this meeting various resolutions were adopted ex- pressive of their sense of the evils resulting from a continuance of the half-civil and half-military government under which they were then living. A resolution was also adopted requesting Lieutenant Colonel B. L. Beall, then the acting military commandant at Santa Fe, in the absence of Colonel Washington, to recommend to the citizens of the several counties of New Mexico to assemble in mass meetings, and elect delegates to a general convention to be held in the city of Santa ¥6 on the 24th day of September then next ensuing, "to concert such plans and adopt such measures as might be most effectual for the attain- ment of good civil government. In compliance with this request, Lieutenant Colonel Beall issued a proclamation to the citizens of New Mexico, recommend- ing to them to assemble in mass meetings, in the different counties, and at des- ignated places, on the 10th day of September, A. D. 1849, for the purpose of electing delegates to a general convention to convene in Santa Fe on the 24th day of September then next ensuing. It was also recommended that the rate of representation be " regulated by the organic laws of the Territory adopted by General Kearny." The proclamation stated the object of the convention to he " the concert of such plans and the adoption of such measures as might be most effectual to the attainment of a good civil government, and the appointment of a delegate to go to Washington to enforce its suggestions and projects, and to urge the early action of Congress in its behalf." In conformity with the rec- ommendations of this proclamation, elections were held, and the delegates elected met in convention at Sauta Fe on the 24th day of September, A. D. CONTESTED ELECTION CASES IN CONGRESS. 109 1849, nineteen in number, and organized by the election of Rev. Cuva. Antonio Josth of February, A. D. 1844, the country west of Mahaska county was attached to it, for election, judicial, and revenue purposes, by an act of the legislature. The northern boundary of Ma- haska is the line dividing townships 77 and 78 north, which is also the southern /boundary of Dallas county. On the 16th of February, 1847, an act of the legis- lature attached to Dallas county, for election and other purposes, the country west of it. Thus it appears that only the country directly west of each of these counties was attached to and made a part of it, for election purposes. Any other construction of these acts would involve the absurdity of considering the unor- ganized territory as contemporaneously attached to two or more different coun- ties. It may admit of doubt whether the Pottawatomie country, in which Kanes- ville was situated, was intended to be attached either to Monroe or to Mahaska county by the acts of June 11, 1845, or February 5, 1844. At those times the country belonged to the Pottawatomie Indians, whose title was not extin- guished until by the treaty of 1846. During the continuance of that title the jurisdiction of Iowa did not extend over the country. In the case of Worcester against the State of Georgia, (6 Peters, 515,) the Supreme Court decided that the Cherokee nation was a distinct community, occupying its own territory, with boundaries accurately defined, in which the laws of Georgia could have no force, and which the citizens of Georgia had no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress. The principle upon which that decision rests seems to be equally applicable to the Pottawatomies. But, without discussing this question further, we proceed to inquire how the elective franchise of those resident in this attached county could be exercised. Under the constitution and laws, they could vote at any place of holding an election within the county proper to which they were attached. But what power had the commissioners of the organized counties to provide places for holding elections within the country thus attached 1 By an act of the legislature of Iowa passed January 21, 1847, it was enacted " that the board of commis- 122 CONTESTED ELECTION CASES IN CONOEESS. sioners of each county which shall not be divided into townships when this act takes effect, and of any county to which any county or counties not so divided shall at that time be attached, for election or judicial purposes, shall, at any regular or called session, as early as practicable, divide such attached county or counties into townships of size and shape most convenient to the inhabitants, giving to each such name as the inhabitants thereof may prefer, and shall ap- point a central and convenient place in each township for holding the first town- ship election ; and the clerk of the board shall record the name of each town- ship, with a particular description of its boundaries ; and every county after- wards established or organized shall be divided into townships, in like manner, at any regular or called session of the board of commissioners thereof, or of the county to which the 3ame may be attached." Presuming, probably, that under this act they had sufficient authority, the board of commissioners of Monroe county, on the 3d day of July, 1848, made the following order : Ordered by the board of commissioners of Monroe county, and State of Iowa, that that portion of country called Pottawatomie county, which lies directly west of Monroe county, be organized into a township, and that Kanesville be a precinct for election purposes in said township ; and that the election be held at the council-house in said village ; and that Charles Bird, Henry Miller, and William Huntington be appointed judges of said election ; and that the boundaries of said township extend east as far as the east Nishnabotna. Acting under this order, Charles Bird, Henry Miller, and William Hunting- ton opened a poll at the council-house in Kanesville, at the general election on the 7th of August, 1848, at which 493 votes were given for Daniel F.Miller for a representative from the first congressional district, and thirty votes for Wil- liam Thompson. A certified copy of the poll-book was forwarded to the clerk of the board of commissioners of Monroe county, in the manner and within the time prescribed by the statutes of the State for election returns ; but the clerk refused to receive it and submit it to the board of canvassers, as required by law. The poll-book was then taken from the clerk's office, and retained by some persons not entitled to its custody until after this investigation was in progress. Your committee would not be understood as justifying the conduct of the clerk of the board of commissioners of Monroe county, or of those who abstracted the poll-book and subsequently detained it ; on the contrary, we think it merits the severest censure. The clerk had, under the law, no authority to refuse to receive that which purported to be a return from an election district. It was his duty to receive the return and lay it before the legally constituted board of canvassers, of which he was a member. But his act, censurable though it be, does not affect the decision of the question whether the board of commis- sioners of Monroe county acted with or without legal authority in organizing a township, appointing judges of the election, and directing a poll to be opened at Kanesville, and whether the votes there received can be legally counted in ascertaining the result of the election in that congressional district. Waiving, for the present, the consideration that Kanesville was not in any country attached to Monroe county, and that a majority of those who voted there were residents of the territory attached to Mahaska county, we proceed to inquire, 1st, whether the order made by the board of commissioners was author- ized by law ; and 2d, whether, even if it was, it authorized opening a poll at the August election. We think they had authority to establish townships in any country attached to Monroe. The country attached was a part of the county. The constitution of the State declares that " any country attached to any county for judicial purposes shall, unless otherwise provided for, be con- sidered as forming a part of such county for election purposes ;" and, by an act of the legislature of July 28, 1840, it was provided as follows : " All the country that is at present, or may be hereafter, attached for revenue, election, or judicial purposes, and the inhabitants thereof, shall be entitled to and enjoy all the rights and privileges of the county or counties to which they are attached CONTESTED ELECTION CASES IN CONGRESS. 123 that they would bo entitled to were they citizens proper of some organized eounty." Township divisions are, in part, for " election purposes ;" and the act last cited gives every right and privilege which the citizens of Monroe county proper had. It would seem to follow, then, that the act of January 21, 1847, gave to the commissioners of Monroe the power to establish townships in the country attached to it. But the power to erect a township there was limited to fixing its boundaries, giving it a name, and appointing a central place within it for holding the first township election. They had no authority to appoint judges ; and any persons appointed by them to act as judges would act, if they acted at all, without any legal sanction. In all cases of townships, the first section of the act of June 5, 1845, requires that the electors present shall, at their first meeting, elect, by ballot, three persons to act as judges of the election, and, at all subsequent elections, the third section of the same act directs that the township trustees shall be the judges. In this view of the case, the order of the board of commissioners of Monroe county was entirely unauthorized, and in contravention of the plain provisions of the law. It is argued, however, that the power to appoint judges was vested in the commissioners by the 3d section of " an act providing for and regulating general elections," passed in 1843. The third section of that act provides " that the county commissioners shall, respectively, at their regular annual session in July preceding the general election, where the counties are not organized into townships, appoint three capable and discreet persons, possessing the qualifications of electors, to act as judges of the elections at any election precinct, and for each of the polls of the election, as provided for in the act setting off towns or districts," &c. The same section provides that, " in all organized townships, the trustees of said townships shall act as judges of all elections held under the provisions of this act." It is obvious, however, that the appointment of judges for which pro- vision was made in this act could only be for election precincts, as distinguished from townships ; and this conclusion is rendered inevitable by reference to the act of June 5, 1845, already cited, which devolves upon the electors in each township the duty of electing judges at their first election. It is true that the act of January 21, 1847, directs the commissioners of counties to which unor- ganized counties are attached to lay out townships in these attached counties. If unorganized country is not intended, if that is not to be considered as part of the county proper and subject to municipal division, then the commissioners of Monroe could not establish a township in the attached country, and the right to create election precincts .there and appoint judges was vested in them, under the act of 1843. We have already submitted our reasons for the belief that the act of January 21, 1847, embraced all attached country. So the board of com- missioners of Monroe understood it. Their order purported to create a town- ship, fixed it5 boundaries, and designated Kanesville as the place of holding the election. They acted, therefore, under the law of 1847, and not under that of 1843. "We repeat, therefore, that the appointment of judges of the election in that township was unauthorized by law, and that judges thus appointed could not legally act. But if this were not so, neither the act of January 21, 1847, nor the order of the commissioners, warranted any other than a township election, as contradistinguished from a general election. The duties of the commissioners are declared in the act to be preliminary to the "'first township election." By the laws of the State, all township elections are to be held on the first Monday of April in each year ; and therefore any election in this new township, thus established, was entirely unwarranted until the first Monday of April, 1849. A more serious objection to the reception of the vote at Kanesville still remains. The evidence which has been submitted conclusively establishes the position that Kanesville, the place designated in the order of the commissioners, is at least six miles north of any part of Monroe county, and in a district which 124 CONTESTED ELECTION CASES IN CONGRESS. never was attached to Monroe for election or any other purposes. This is shown beyond doubt by the statement of Charles Mason, (page 55,) admitted by the contestant as evidence, (pages 55 and 56 ;) by the testimony of John W. Webber (pages 58 and 59) and Jonathan P. Strattan, (pages 112 and 113.) It is also admitted by the contestant (page 35) that a majority of those who voted' at Kanesville in August, 1818, resided north of a line running due east from the Missouri river, five miles south of Kanesville. Consequently, they resided north of the north line of Monroe county. Of course, they had been attached to Mahaska county, and, under the constitution of the State, they could vote only in Mahaska county. How, then, can it be asserted that their votes could be legally counted, except in violation of the constitutional provision expressly restricting the right to vote to voting in that county in which the elector was resident? It is not pretended that Kanesville was an election district of Mahaska. The votes are claimed as belonging to Monroe. In many of the States the right to vote is confined by law to voting in the ward or township in which the N elector resides ; and, even under this more stringent provision, votes in other wards or townships have, it is believed, been uniformly adjudged illegal. And again, Kanesville being proved to have been in a county which was neither a part of nor attached to Monroe, it is perfectly obvious that the board of commissioners of that county had no more authority to establish an election district there than they had to establish one in Mahaska county proper. The board was a court of limited jurisdiction. Beyond the prescribed limits of its jurisdiction its acts were, of course, nullities, and neither gave nor took away any right. Nor can it be said that by these views the voters at Kanesville are disfranchised. The act of the Monroe commissioners did not affect them. They might have voted, as before, in any election district of Mahaska to which they were attached. Nor is their belief that they were rightly voting at Kanes- ville at all material, though it may have been their misfortune. Their right to vote was a political right restricted by their actual residence, and not by what they may have supposed it to be. The opposite doctrine would convert the constitutional provision into a declaration that the voter should vote in the county in which he supposes he resides, and make his franchise dependent upon his own conjecture. The vote at Kanesville was therefore unwarranted and illegal, and cannot properly be counted. The next question presented in the case is whether the vote of Boone town- ship, Polk county, should be rejected, as is claimed by the contestant. The vote of this township was : forty-two for William Thompson, and six for Daniel F. Miller. The contestant claims that these votes should be rejected, because, as he alleges, Boone township was in the second and not in the first con- gressional district. By the act of the legislature of Iowa of February 22, 1847, the State was divided into two congressional districts ; and the first district was declared to embrace " the counties of Lee, Van Buren, Jefferson, Wapello, Davis, Appa- noose, Henry, Mahaska, Monroe, Marion, Jasper, Polk, Keokuk, and all of the country, south of a line from the northwest corner of the county of Polk running west to the Missouri river." The second district was declared to embrace the " counties of Clayton, Dubuque, Delaware, Jackson, Clinton, Jones, Linn, Poweshiek, Benton, Iowa, Johnson, Cedar, Scott, Muscatine, Washington, Louisa, Des Moines, and all the country north of a line from the northtoest corner of the county of Polk running west to the Missouri river. By an act of the legislature of January 13, 1846, section 8, the boundaries of Boone county were established, and the south line was declared to be the division line between townships 81 and 82 — it being an extension of the north line of Polk county. Prior to the congressional election in August, 1848, although its boundaries had been thus established, it had never been organized ; and by an act of January CONTESTED ELECTION CASES IN CONGRESS. 125 17, 1846, "the counties of Story, Boone, and Dallas, (afterwards organized,) and the territory of' country north and west of said counties," was " attached to the county of Polk for revenue, election, and judicial purposes." In pursu- ance of this legislative provision, the commissioners of Polk county in 1847 established a township in this attached country, embracing the whole of it, and called the township of Boone. In 1848 they divided this township, calling the southern half Jefferson and the northern half Boone. This division could not, however, take effect until the township elections, which were fixed by law in the spring of 1849. The electors resident in this Boone township voted at the congressional election, and their votes were returned and counted in Polk county, to which the township had been thus attached. For all election pur- poses — for all the purposes of this investigation — Boone county or Boone town- ship was as much a part of Polk county as was any township within the county proper. The constitution of Iowa declares that any country attached to any county for judicial purposes shall, unless otherwise provided for, be considered as forming a part of said county for election purposes. But, unless the vote of Boone township be received and counted as a part of Polk county, this con- stitutional provision becomes a nullity, and the voters of Boone are entirely disfranchised. Their vote could be received and counted at no other place. No provision was ever made for their voting in any other county than Polk. The electors at Kanesville could have voted, had they chosen to do so, in the county lying east of them, to which they had been attached ; but these voters could have had no voice in the choice of a representative unless their votes had been received as a portion of the vote of the first district, of which Polk county was declared to be a part. It is, however, objected that the con- stitution also contains the following provision : " No county shall be divided in forming a congressional, senatorial, or representative district." It is urged that if Boone is to be considered as forming a part of Polk county, then a county has. been divided in forming a congressional district, and therefore the districting act must be considered as repealing the antecedent act attaching Boone to Polk. To this it may be answered that if, within the meaning of the constitution, the districting act did divide Polk county by separating Boone township from it, the act itself is unconstitutional and inoperative so far as it aims to sever Boone from the county of which, under the constitution and law, it forms a part. Nor does there appear to be the least reason for asserting that it repealed the act attaching Boone to Polk. It does not purport to repeal any law ; and it might with equal force be contended, had it run the line dividing the two districts directly through the centre of Polk county proper, that it repealed the law by which the boundaries of Polk were established. But such is not the true mean- ing of the constitutional provision. Unquestionably its design was to guard against the division of the votes of the inhabitants of any county — to provide that all the votes of the electors of each county should be counted together, and certified as an entirety, not in fragments. The commissioners of each county are required by law to certify an abstract of the vote of each county to the secretary of state. The abstract thus certified is a record of the entire vote of the county, including all which is appurtenant to it. That abstract may not be divided ; and the design of the constitutional provision would ill be answered by severing from the remainder the votes of a constituent part of Polk county, though only an adjunct. There seems, therefore, to be no satisfactory reason why the vote of Boone township should not be counted in Polk, and in the first congressional district. It remains to consider the third and only other question which has been contested in the case : Should the fifty-six which were received and counted in Boone township, Dallas county, be rejected from the' aggregate, as officially reported 1 The facts in regard to this question may be briefly stated as fol- lows : From the official return of the election held in that township, (pages 92 126 CONTESTED ELECTION CASES IN CONGRESS. and 93,) seventy-two votes appear to have been received. Of these, fifty-six whose names are given are alleged to have lived out of the county, and to have had no right to vote there. The testimony of Eeuben Oaks (page 31) and Hiram Oaks (page 35) proves that they and more than fifty others went, im- mediately before the August election of 1848, from Pottawatomie county (a distance of one hundred and forty miles, and more than sixteen days' journey) to Dallas county, and voted there. The persons went from the Mormon settle- ments west of the Nishnabotna. Nor is this all. The exact place of residence of most of these persons is shown ; and they are the persons whom the poll- books show to have voted at Boone, in Dallas county. One is proved to have resided in the neighborhood of Kanesville ; nine are proved to have resided at Honey Creek settlement, fifteen miles northward from Kanesville ; ten at Bybe settlement, two miles east of Honey Creek ; six at Big Pigeon, ten miles east of north from Kanesville ; two at Key Creek, fifteen miles northeast of Kanesville ; two at Drun's Mill, eleven miles northeast of Kanesville ; and seven at Harris Grove, a place said by Eeuben Oaks to be near forty miles east of northeast from Kanesville. The place of residence of the others who went in this company is not proved, though five others are recognized by Eeuben Oaks, Hiram Oaks, and E. M. Greene as having been in the party. The House is left to infer the place of residence of the others from ■ the fact that all went in a body from Pottawatomie county ; and it is but a fair pre- sumption that they all resided in the same neighborhood. Of all the places named at which these persons resided, Harris Grove seems to have been most distant from Kanesville, and most northward. But the testimony satisfactorily shows that Harris Grove was at least two miles south of the south line of Dallas county, and, therefore, that alike Harris Grove and all the other places at which these persons resided were south of any portion of country which had been attached to Dallas for election purposes. The records of the land office, and the testimony of James M. Marsh, (page 53,) as well as that of Charles Mason (page 54) and John W. Webber, show that, under authority of the United States, and in prosecution of the public surveys, a correction line was run to the Missouri river in the fall of 1848, between townships 78 and 79 north, and west of the fifth principal meridian. It is also agreed by the con- testant (page 78) that Harris Grove is " eight miles south of the correction line run through to the Missouri river by the United States surveys in the fall of 1849." It will be observed that this agreement speaks of a correction line run in 1849, while that between townships 78 and 79 was run in the year 1848. It cannot be doubted, however, that reference is made to the same line. The records of the land office show no other correction line run in that vicinity than that run by Mr. Marsh in the fall of 1848; and it would be extraordinary if there were, for it is of unfrequent occurrence, and useless in prosecuting the public surveys, to run correction lines within less than about sixty miles from each other. It being admitted, then, that Harris Grove lies eight miles south of this correction line dividing townships 78 and 79, it necessarily follows that it is south of the south line of Dallas county, and consequently that all the persons referred to in the depositions of Eeuben Oaks, Hiram Oaks, and E. M. Greene could not legally vote in Dallas county. The act of the legisla- ture of Iowa, approved January 17, 1846, defines the boundaries of Dallas county as follows : "Beginning at the northwest corner of Polk county; thence west on the line dividing townships 81 and 82 to the northwest corner of township 81 north, of range 29 west; thence south to the southwest corner of township 78 north, of range 29 west ; thence east to the southeast corner of township 78 north, of range 26 west ; and thence north to the place of begin- ning." Prom this it appears that the south line of Dallas county is the line dividing townships 77 and 78. As the townships are all six miles square, the correction line, being between townships 78 and 79, is only six miles north of CONTESTED ELECTION CASES IN CONGRESS. 127 the southern boundary of the county. Harris Grove, therefore, was not within the country attached to Dallas for election purposes, but was attached to Mahaska, a county in the next range south ; and in Mahaska only could the persons referred to by Oaks and Greene vote. Why they attempted to vote in Dallas, it is not very material to inquire. It is worthy of observation that they went from the vicinity of Kanesville, and, therefore, must have known either that that place was not west of Monroe, or that their places of residence were not west of Dallas. But how many of these votes should be discarded ? More than fifty went in the company. Only forty-two, however, have been recognized by Reuben Oaks, Hiram Oaks, and E. M. Greene. These, it is agreed by the contestant, with the exception of four, voted for him, (page 92.) It follows that he received at least thirty- eight illegal votes ; and we are of opinion that that number should be deducted from the number returned as having voted for him. Your committee have thus presented all the questions the consideration of which is necessary to the adjudication of the case. Much testimony has been introduced by both the parties which, in our estimation, has no relevancy to the actual merits of the controversy. The conduct of the friends of the parties, or even of the parties themselves — the facts that electors acted under an honest though mistaken impression as to their rights ; that the commissioners of Mon- roe were the political friends of one of the litigants ; that the canvass was con- ducted by the friends of the candidates as if the election at Kanesville was regular and legal ; or even that a majority of the legal voters resident within the district, in some mode and at some place, expressed their preference for one of the candidates — are matters entirely foreign from a legitimate considera- tion of the question, Who is entitled to the seat? The House, in judging of elections, has no discretion to exercise. It acts in a judicial character; and the only thing to be adjudicated is this : Who has received a majority of the votes of the electors in the district, polled at the time, in the manner, and at the places prescribed by law ? Upon reviewing the conclusion thus submitted, the correct statement of the votes received by the sitting member and the contestant is as. follows : For William Thompson. Votes. Official abstract as returned 6, 477 White Oak, Mahaska county 53 Chariton, Appanoose county 16 Wells, Appanoose county 11 Total vote received by William Thompson 6, 557 For Daniel F. Miller. Votes. Official abstract as returned 6, 091 Rejected votes in Marion 7 White Oak, Mahaska county - 16 Wells, Appanoose county - 3 6,117 Deduct illegal votes in Dallas given to contestant 38 Total vote received by Daniel F. Miller 6, 079 Majority for William Thompson 478 128 CONTESTED ELECTION CASES IN CONGRESS. It is apparent, therefore, that, even if the vote at Kanesville be received and counted, the result remains unchanged. The Kanesville vote was : 493 for Daniel F. Miller, and 30 for William Thompson. If this vote be added to the aggregate above stated, it stands : For William Thompson. Votes. Aggregate as above 6, 557 Add Kanesville votes 30 Total 6, 587 For Daniel F. Miller. Votes. Aggregate as above ' U, 07& Add Kanesville votes 493 Total 6, 572 — ! iv Majority for William Thompson 15 In every aspect, therefore, in which the case can be justly considered, your" committee are of opinion that William Thompson received a majority of the ' votes which were legally polled, and was duly elected a representative to the thirty-first Congress from the first congressional district of Iowa. They submit the following resolution: Resolved, That William Thompson is entitled to the seat in this house which he now holds as the representative from the first congressional district of Iowa. Mr. Van Dyke, from the minority of the Committee of Elections, made the following leport : That the whole number of votes which were counted by the congressional canvassers for the State of Iowa for the said contestant and for the said sitting ■ , member, in the said first congressional district, was 12,568, of which number the contestant had 6,091, and the said sitting member 6,477 — giving to the said sitting member a majority of 386. It appears, however, by the statements and admissions of the parties, and the evidence taken in the case, that the votes cast in a number of the election precincts in said district were not counted by the election officers, and did not in any way contribute to the result above stated. It further satisfactorily u appears by the evidence, that, of all the votes cast in the said district by per- sons residing therein at the time, and who, for aught that appears, had an undoubted right to vote in the said district, the contestant has a majority of 59. It is insisted by the contestant that the sitting member received and had counted for him certain votes given by persons not then residing in the said first district, * and who had no right to vote therein ; and that a large number of legal votes were cast within the said district for the said contestant which were not in any way counted for him in the said district by .the said congressional canvassers, * although they were counted and allowed by the officers holding the elections. On the other hand, it is insisted by the sitting member that the said contestant had counted and allowed to him, in the said first district, a number of votes ;i which were illegally cast, and which, for that reason, should have been rejected by the said canvassers ; and also that a number of lawful votes were cast for.*? the said sittingtoember, in the said first district, which should Lave been counted -i CONTESTED ELECTION CASES IN CONGRESS. 129 and allowed to him, but which were rejected and not counted by the said can- vassers. The only questions of difficulty which present themselves are the proper admission or rejection of the votes thus placed in controversy and dispute ; and although the committee has not been unanimous on many of the points present- ed for its consideration and decision, yet on each of the points thus presented there has been such a decision by a majority of the committee as to give to the contestant the seat which he claims. In the first place, the contestant insists that seven votes which were cast for Daniel F. Miller in Pleasant Grove township, in the county of Marion, omitting the middle letter in the name of the contestant, and which were not counted by the said canvassers, should be counted and allowed to him. If these votes were really cast for the contestant, and the omission of the middle letter arose from a want o"f knowledge of the use of such letter on the part of the voters, it would be extremely technical and harsh to disallow such votes ; but it appears by the admission of the sitting member, through his counsel, that the only candidates nominated for representative were Daniel F. Miller — sometimes called Dan Miller or Daniel Miller — William Thompson and Mr. Howe. The committee, therefore, are satisfied that the said seven votes were honestly intended for the contestant, and allow them accordingly — increasing the number of votes to be counted for the contestant to 6,098. These votes were allowed him by the officers holding the election, but not by the canvassers. It is insisted, secondly, by the contestant, that the votes given at Kanesville, an election precinct near the Missouri river, established as such by the board of commissioners of the county of Monroe, and supposed to be attached to that county for election purposes, and which votes, although allowed by the officers holding the election there, were illegally suppressed and never allowed to reach the said congressional canvassers, should now be counted and adjudged to be a part of the legal vote of the said first congressional district. The whole num- ber of votes cast at the Kanesville precinct was 523 ; of this number 493 were cast for the contestant, and 30 for the sitting member. This is a question of much importance. It is not a matter of a few illegal votes, but it is one of the admission or destruction of the vote of an entire township or precinct, and that one of the largest in the State. It is fully established, as well as admitted, that the persons voting at this precinct had a perfect right to vote in the first congressional district, and to vote for either the contestant or the sitting mem- ber. It is not pretended that any fraud, injustice, or. unfairness was practiced by either the voters or the election officers towards any one, but everything Seems to have been done honestly, fairly, and in good faith, and that the per- sons voting were legal voters in the district; while the whole proceedings touching the election were assented to and participated in by all men and all parties there, and were objected to by none. And in view of these facts, and in view of the great principle in our institutions which seeks to afford to all the citizens of the Union the right of suffrage, the committee believe that the reasons for wholly setting aside the election in this precinct should be exceedingly strong. These reasons are steictly and purely technical in their nature ; and, although they are entitled to a proper consideration, yet they ought not, in the opinion of the committee, in the absence of all improper conduct, to be allowed to destroy the votes of so large a portion of the citizens of Iowa, whose right to vote in the first district, and for either of the two candidates, is, since the taking of the testimony,, unquestioned. The State of Iowa lies between the Mississippi and Missouri rivers. The counties in the eastern part of the State were first organized, and, as the organ- ization of counties proceeded, there always remained unorganized country lying westward of them of from one hundred to two hundred miles in extent. By a number of acts of the legislature of the Territory, as well as of the State of Iowa, H. Mia. Dor. .<57 Q 130 CONTESTED ELECTION CASES IN CONGRESS. all the country lying west of certain organized counties was attached to such counties, for " election, revenue, and judicial purposes ;" and the inhabitants of such attached country were " entitled to enjoy all the rights and privileges of the counties to which .they were attached that they would be entitled to were they citizens proper of some organized county." And in accordance with this practice, the legislature of Iowa, on the 11th day of June, 1845, passed an act organizing the county of Kishkekosh, and attached to it the territory west of said county, " for election, revenue, and judicial purposes." On the 19th day of June, 1846, the legislature of said State, by an act for that purpose, changed the name of this county from Kishkekosh to Monroe. By an act of the legislature of Iowa approved February 15, 1843, a board of county commissioners was required to be organized in each of the counties " for transacting county business." This board was made a body " corporate and politic" by the act. And by another act of February 17, 1842, " for the organi- zation of townships," these boards are authorized to "divide counties into townships," " and appoint the place where the first meeting of the electors shall be holden." But by another act of the legislature, entitled " An act providing f r and regulating general elections," which went into operation July 1, 1843, these boards of county commissioners are required, " at their regular sessionsdn July preceding the general election, where the counties are not organized into townships, to appoint three capable and discreet persons to act as judges of the election at any election precinct." And under this authority these boards of commissioners have always been in the practice and habit, in the unorganized country, of appointing not only the judges of election, but of fixing also the precinct or place where the election should, be held wherever they supposed the convenience of voters required it. And accordingly we find by the evidence that, at the term of July of these boards of commissioners immediately preced- ing the general election in 1848, a number of election precincts in unorganized territory were created, and a number of townships in organized territory were organized, and judges of election appointed for them all, respectively. Among the number of election precincts created at the said July term of the said boards of commissioners was the one at Kanesville, which was established, and the judges of election appointed, by the board of commissioners of the county of Monroe. Kanesville was some 125 miles from the western limit of Monroe proper, and was in a wild and unsurveyed country ; but everybody, it seems, both in Monroe county proper and at Kanesville, and elsewhere, sup- posed and believed that it was within the country attached to the county of Monroe for election, revenue, and judicial purposes. There had not at that time been any lines run fixing the boundaries of counties in that part of the country, and no one could possibly tell the precise place of such boundaries. It turns out, however, by surveys made since the election of 1848, that Kanesville lies some five or six miles north of the northerly line of Monroe county, as run due west from the northwest corner thereof; and the question is, whether this fact should be permitted to annul the whole election, when all the persons voting had a perfect right to vote for either of the two candidates on one side or the other of the line: If it were a question of conflicting juris- diction between two adjacent counties, it might be entitled to more weight ; but no such question arises here. Nor can the sitting member complain thatjthis. mode of voting does him any injustice ; for if these votes had been cast on different sides of the line, as he insists they should have been, they would with still more certainty have defeated his election, if that election depends upon these votes. But, although there was at the time no governmental line run between the county of Monroe and the county lying north of it, yet there was an understood line, a claimed line, an admitted line. That line ran north of Kanesville, and according to that line the authorities of Monroe claimed and exercised jurisdie* • '• ".1 CONTESTED ELECTION CASES IN CONGRESS. 131 tion over Kanesville as a part of that county. This jurisdiction was assented to by the people of Kanesville, and has never been resisted by the county of . Marion, in which Kanesville is now alleged to be situated ; and, although it is now said by persons who have recently run a line, that a course due west from the north line of Monroe will place Kanesville north of that line, yet there has never, up to, this time, been any such settlement or adjudication of the question as to this line as to overturn or shake the jurisdiction which Monroe county ex- ercised over Kanesville. It is a well-known historical and judicial fact, that, as between the State of Iowa and the State of Missouri, the latter claimed and exercised jurisdiction for a long time over territory to which she had in fact no legal right, and which, in truth, formed a part of Iowa. Yet the State of Mis- souri, like the county of Monroe, assumed that the line between her and Iowa ran north of certain inhabitants there residing, and accordingly extended her laws over them, and brought them within her jurisdiction for all purposes. This claim was resisted by Iowa ; and, upon an after investigation of the facts and law of the case before the Supreme Court of the United States, it was decided by that tribunal that the line did notj-un where Missouri claimed it to be, but miles south of it ; and such decision must also have determined that Mis- souri neVer had any legal right to exercise jurisdiction over the disputed terri- tory or its inhabitants, at the time she exercised it. But does this decision and determination of the Supreme Court necessarily annul and destroy all the acts of jurisdiction which the State of Missouri exercised over the territory while she' adversely held it in actual possession ? Are all the taxes she collected of those people now to be returned to them ? Has every punishment of an offender now become a crime against the public functionaries who inflicted it? Is the service of every process by a sheriff or constable now become a trespass on the part of such officer, and the service good for nothing ? Certainly not. The jurisdiction of Missouri over the part in dispute is at an end ; but the legislative, judicial, and executive acts which she exercised over it while in her custody, so far as all citizens are concerned, are as valid as any other of her acts. So with the county of Monroe. She assumes that the line between her and Marion runs north of Kanesville, and extends her jurisdiction accordingly over the people, and enforces her laws among them. This assumption is unresisted ; and, ad- mitting it to be altogether wrong in law and in fact, yet, if it is continued, and never determined to be otherwise, can it be contended with truth that all such exercise of jurisdiction is absolutely void — and that, too, when the question is raised, not directly, but in a collateral way, and before the most equitable and least technical of all tribunals, the House of Representatives % The committee think not. > Nor do the committee see that either the contestant or any of his friends can be charged with any unfairness in this matter. The entire board of commis- sioners of the county of Monroe were the political friends of the sitting member. A majority of the election officers at Kanesville were also his political friends. A number of other influential friends of his went a long distance to Kanesville prior to the election on an electioneering campaign in his behalf; while the actual sheriff of Monroe county, a political friend of his, did the same thing, and was at Kanesville and voted there on the day of election. The contestant, it seems, had political friends at Kanesville ; but it does not appear that either he or any of his friends from a distance ever visited Kanesville at or before the election for political 'purposes. No question was raised at any time by any one against the correctness of the proceeding, until after the election. The balloting seems to have been conducted, and the poll-book kept, with more than usual- care and regularity. The poll-book in this case was duly made up and delivered by the proper officer to the clerk of the board of commissioners of the county of Monroe, as the law requires, whose duty it was to receive it, and at the proper time, with 132 CONTESTED ELECTION CASES IN CONGRESS. the assistance of two justices of the peace, to open it, and make an abstract of the votes of that and other precincts, and transmit them to the secretary of state, to be counted and canvassed by the board of canvassers. But the clerk of the board of commissioners of Monroe county, without calling to his aid the two justices of the peace, as the law requires, but under the advice of J. C. Hall, esq., one of the attorneys of the sitting member, (and who travelled a hundred miles to give such advice,) refused to receive or take care of the Kanes- ville poll-book ; and it was actually carried away by some one, but no one knows who or how, except that through some unknown agency it was found in the carpet-bag of Mr. J. 0. Hall before he got home, as he now tells us in his evidence. Mr. J. C. Hall gave the poll-book to the sitting member in the spring of 1849, who, in the winter of that year, disputed the existence of such a poll-book before the committee ; but, on the 19th day of February last, Judge Mason, another of the attorneys of the sitting member, in attempting to serve, at his own office, a notice on the contestant to take testimony in the case, acci- dentally, as is supposed, served on him the original poll-book of the KaneSville precinct ! — which the contestant, after duly examining it in the presence of several other persons, returned. This poll-book was, of course, never before the congressional canvassers ; but the committee think that, under all the circum- stances of the case, the vote of this precinct should be received and counted, which will increase the number of votes given to the contestant to 6,591, and 'the number given to the sitting member to 6,507. It is also insisted by the contestant, that the vote cast in the township of Boone, in the county of Boone, but counted in and added to the vote of the county of Polk, was improperly counted and allowed by the board of canvass- ers, and should now be deducted from the general result or aggregate of votes counted in and for the first district. The votes given in this township were: for the contestant six, and for the sitting member forty-two. This township of Boone, and the county of Boone, in which it is situated, are, in fact, not in the first but in the second congressional district of Iowa, and all the persons who voted in this township of Boone actually resided in the second congressional district at the time they voted. About this there is no dispute, as the districting line of Iowa places the whole of Polk county in the first district, and the whole of Boone county in the second district ; and the only ground on which it is claimed that these votes given in Boone were correctly counted in Polk county is, that, by an act of the legislature of Iowa approved January 17, 1846, Boone county was attached to Polk county, for election, revenue and judicial purposes, and that the constitution of that State prohibits the division of counties in making congressional districts. But, by an act of Congress approved June 25, 1842, every State that is entitled to more than one representative is required to vote by district — each district is to elect one representative, and no more; and in pursuance of this act of Congress, the State of" Iowa, on the 22d of February, 1847, divided herself into two congressional districts, denominated the first and second districts. Now, it seems impossible that Congress, when it passed this districting act, confining each district to one representative, could have intended that, for congressional purposes, the inhabitants and residents of one district' could lawfully vote in another. And can it be supposed that the State of Iowa, when, subsequently to all these other laws, she ran a line across her territory, dividing it into two districts, meant to say, that after all, that line meant nothing; and that the inhabitants living in one district, when voting "for representatives in Congress, might still vote in the other district 1 Such supposition, the com- mittee believe, cannot be admitted. If this principle be once allowed ts prevail, where is it to end 1 Will it not entirely destroy the whole district system 1 And further: If the construction insisted on by the sitting member! be cor- rect, it will carry the votes of one-half of the second district into the first ; ffor the same act and the same section which attaches Boone to Polk county, for CONTESTED ELECTION CASES IN CONGRESS. 133 election purposes, also attaches, for the same purposes, the counties of Story and Dallas, and likewise all the country lying north and west of the said three counties of Story, Boone, and Dallas, which, according to the map of the State, will take in nearly if not quite half of the territory of the second district ; and the voters in all that section of the second district thus included within the first had the same right to have their votes counted in the first district as those living and voting in the township of Boone. Such a principle, if allowed, would at any time enable a strong district that had votes to spare to turn the scale in a neighboring district that needed aid. But such, the committee believe, is not the law of the land, nor its intention ; and, as the voters in Boone township did not reside at the time in the first district at all, but in the second district, in which, if anywhere, they had a right to vote for a representative in Congress, and as, in consequence, they certainly had no right to vote for either the con- testant or the sitting member at any place, the committee think that this vote of Boone township should be excluded, which being done will reduce the num- ber of votes given to the contestant to 6,585, and the number given to the Bitting member to 6,465. On the other hand, the sitting member claims that in the township of White Oak, in .the county of Mahaska, 69 votes were polled at the election in August, 1848 ; that 53 of these votes were given for the sitting member, and 16 for the contestant ; that these votes were rejected on the ground that it did not appear that the judges of election had been sworn. A copy of the poll-book is before' the committee, and it satisfactorily appears by the evidence taken that the judges were in fact sworn ; and the committee are unanimous that the votes should be received and counted, which being done will increase the number of votes given to the contestant to 6,601, and the number given to the sitting member to 6,518. A claim precisely similar is made by the sitting member to 16 votes cast for him in the township of Chariton, in the county of Appanoose, which were rejected for the same reason as those in White Oak. It is also proved that the judges of election were, in fact, sworn ; and the committee think the votes should be received and counted, which being done increases the number of votes given to the sitting member to 6,534. It is also insisted by the sitting member that he should be allowed 11 votes, and the contestant three .votes, cast in the township of Wells, in the county of Appanoose. It appears that these votes were rejected for informality. It does not appear by the election proceedings that the officers of election were sworn, nor is it at all proved in any other way. And although it appears that W. Thompson and D. F. Miller were voted for for Congress, yet it does not appear how many votes either of them received ; and the only mode of inferring that either of them received any votes at all is that the poll-book states that, "for " superintendent of public instruction," W. M. Thompson received 11 votes, and that for the same office D. F. Miller received 3 votes. No proof is brought to bear on this case to prove anything whatever about it ; and if ever irregularity or illegality should set aside an entire poll, it should be such as this. But the committee,, from a very strong indisposition to deprive the citizen of his right to vote in consequence of the errors and blunders of others, nevertheless allow this vote to be counted, which increases the number of votes cast for the sitting member to 6,542, and those of the contestant to 6,604. It is further and lastly insisted by the sitting member that 52 votes were illegally cast for the contestant in the county of Dallas, and that they should now be deducted. If this whole number were deducted from the votes hereto- fore allowed to the contestant by the decisions of the committee, he would still have the largest number of votes, and would consequently be entitled to the seat. The whole number of voteB given at this poll is : for the contestant 62, and for the sitting member 10. The county of Dallas, like other counties, had 134 Contested election cases in congress. the country lying west of it attached to it for election and other purposes ; and it appears that a number of persons not living within the limita of Dallas county proper, ; but living westwardly thereof, voted in a precinct in that county. It is contended by the sitting member that the persons living south of the southerly line of Dallas were not legal voters in that county, and so a majority of the committee have determined. Two questions present themselves for con- sideration : first, how many of these persons voted for the contestant ? and secondly, on which side of the southerly line of Dallas county did they reside? The only evidence as to whom they voted for is found in the admission of the contestant. He admits that the persons recognized by Oaks and Green in their testimony voted 'in Dallas and for him, except four. The whole number of persons recognized by Oaks and Green, jointly and severally, amounts to 40. Of these, the votes of three are unknown, and one did not vote, reducing the number of those who voted for the contestant, as proved or admitted, to 36. These votes were all received as legal votes by the judges of election, who are presumed to have made all due inquiry and to have decided correctly, and must also be presumed to have had as much knowledge of the southerly line of Dallas as any of us, acting as we do without any evidence on the subject. These votes were also counted and allowed by the board of congressional can- vassers of the State of Iowa, and every presumption must be in favor of their legality until the contrary be fully established. The sitting member contends that these votes are illegal, because the voters resided on the south side of the southerly line of Dallas. In attempting to establish this the burden of proof rests entirely on him. In undertaking to overthrow the decisions and adjudica- tions of Iowa, he must not leave us to guess that those decisions may be wrong, but he is bound to prove it beyond all reasonable doubt. Among the persons recognized by Oaks and Green are five whose places of residence at the time of election no one who has testified knows ; and as their votes were duly received and presumed to be legal, and as no one locates them out of Dallas county, or in any way shows why they are illegal, they must be considered as legal votes ; and, being so considered, it will reduce the number of those alleged to be illegal to thirty-one, (31.) Of the remaining thirty-one voters, the residence of each in his particular settlement is given ; and it was quite as easy for the sitting member, who objects to these votes, to have shown, by survey or otherwise, on which side of the southerly line of Dallas these settlements were, as it was to show on which side of the northerly line of Monroe Kanesville is situated. But he has done no such thing, and has not even attempted it ; nor had there been at that time, nor has there been since, any line run through that section of country where these voters resided showing the southerly line of Dallas. These voters all resided either in the country attached to Dallas county or in the country attached to Marion county — that being the county immediately south of Dallas, and lying between it and Monroe county. They had a right to vote in one county or the other beyond doubt ; and, according- to the testi- mony of all the witnesses that have been examined on this part of the case, these voters all thought that their places of residence were in Dallas county, and that they were lawful voters there, and accordingly went there and deposited their votes. They might have done so quite as well and as easily in Marion county ; but they were satisfied that their voting-place was in Dallas, and they went there accordingly. So far, therefore, as the persons living in that region of country were competent to prove the line between the counties, these wit- nesses prove it to have been south of those settlements. Of the 31 voters last named, it appears from the testimony that ten of them resided within ten or twelve miles of Kanesville ; and, under the evidence in relation to that precinct, it may not be unreasonable to suppose that these ten voters resided south of the line in question. CONTESTED ELECTION CASES IN CONGRESS. 135 With regard to the remaining 21 voters, 14 of them, it is proved, resided at Honey Creek and Bybe settlements — called fifteen miles north of Kanesville. Now, if Marion county be twenty miles wide from north to south, then these voters all resided, in fact, in Dallas. If Kanesville has been properly located by the sitting member, and if Monroe be more than twenty miles wide, of which we have no certain evidence, then these voters are brought so near the line as to render it impossible for the committee to determine that they certainly lived south of the line; while the remaining seven voters resided at Harris Grove, forty miles from Kanesville, in a direction east of northeast therefrom. Now, : it is perfectly certain that a line running east of northeast from Kanesville, and continued for forty miles, will bring you into the country attached to Dallas county for election and other purposes, so that there are but ten of the votes given for the contestant in Dallas county that can, with any kind of propriety, be pronounced illegal ; and if these be deducted from the number given to the contestant, his number will be 6,594, and the number of the sitting member 6,542. And if we now leave in or re-add to the general result the votes cast in the township of Boone, in the county of Polk, in the second district, the con- testant will still have the largest number of legal votes in the district. The committee, therefore, recommend the adoption of the following resolutions : 1. Resolved, That the seven votes cast at Pleasant Grove, with the middle letter of the contestant's name omitted, be allowed and counted for him. 2. Resolved, That the vote cast at Kanesville be allowed and counted as a legal vote. ' 3. Resolved, That the vote cast at White Oak be counted and allowed as a legal vote. 4. Resolved, That the vote cast at Chariton be allowed and counted as a legal Vote. 5. Resolved, That the vote cast in Wells township be allowed and counted as a legal vote. 6. Resolved, That the vote cast in the township of Boone, in the county of Polk, in the second district, be disallowed and deducted from the votes counted for the first district! 7. Resolved, That the votes cast in the county of Dallas by persons proved to have been residing at the time south of the southerly line of Dallas be rejected and disallowed. The subjoined extracts from the debate in the House will give a fair idea of the arguments presented for and against the report : Mr. Strong, of Pennsylvania. In the first place, it was claimed that the White Oak county vote should be rejected, on the ground that the judges of election had not been sworn. This was a matter which did not pertain to the manner Of voting, but which had relation j merely to the manner of counting the votes. It was perfectly within the power of the House to waive any informality in regard to the return of the votes, although it was not in their power to do so in regard to the manner of voting, without an infringement of the constitu- tional right of the State of Iowa. The judges of election in that county were not, in point of fact, sworn ; and this was the only difficulty. They had returned the number of votes that were given and for whom they were given ; hut they had not made the return under oath. This, he contended, was a matter which it was perfectly competent for this 'body to weigh and determine at their discretion, because it was not among the reserved rights of the State, and the practice of this House had always been to count such votes where it appeared that the officers had actually been sworn, although there was no certificate that they had been sworn. The votes of this county were, however, rejected by the committee. In regard to Wells county, he observed that the minority in their report claimed considerable credit for allowing the vote of that county, although an objection existed on the ground ofinformality. Respecting the vote of the county of Chariton, the same might be said. 'The fourth point that was raised in the case was, that seven votes given in Marion county were given for Daniel Miller, instead of Daniel P. Miller. In regard to the propriety of admitting them, however, there was no difference of opinion. There was sufficient to designate for whom the ■votes were cast. And it was a well-settled principle of law that the middle letter was no part of a man's name. In a court of law he might be sued as Daniel Miller. Three questions then remained for the committee to determine — and they were questions upon which the decision of this ease must rest. The first was upon an allegation by the contestant that the votes given in Kanesville must be deerned as part of the votes of Mon- roe county. Now these were the facts that were shown, and they were not denied ; Kanes- ville was no part of Monroe county proper; it was from one hundred and twenty -five to one hundred and fifty miles from any part of Monroe county. As the eastern portion of the State had been first settled, it had been the practice to attach to the organized counties the few scattering inhabitants residing on lands lying west of such counties for election, reve- 136 CONTESTED ELECTION CASES IN CONGRESS. nue, and judicial purposes. , Monroe county was one of the border counties, and by act of • the legislature the country lying west of it was attached to that county for the purposes he had mentioned. But Kanesville, the place where the majority of the voters lived, was not • west of Monroe county, and was never attached to it for any purpose whatever; yet it was ' claimed that these votes shSuld be counted as a part of the votes of Monroe county. Mr. S. referred to and read from the testimony taken by the committee, to show that Kanesville did not constitute a part of Monroe county, but that if it belonged to any, it belonged 'to Ma- haska, county ; and contended that these voters ought to have voted in some precinct of the latter county. It being established beyond a doubt that Kanesville, and the country where these voters lived, had never been attached to Monroe county, he asked how it could be claimed that these votes should be counted as part of the votes of Monroe county? The constitution of Iowa required that the votes should be counted only in the county in which the voters resided. These votes therefore, could not be counted with those of Monroe county. He contended further, that the judges of election at Kanesville were not appointed by legal : ' authority, and that the election was held at that place without authority, and being without '• authority, the commissioners had no power to administer oaths to the jijdges of election; ' that the oaths thus administered were extra judicial, and that perjury could not be assigned upon them. The election, then, was not held in the manner prescribed by the State ; and unless the constitutional provision upon this point were to be disregarded these votes must be rejected. He was aware that he should not be able, in the course of the time allotted to him, to discuss these various questions as folly as he would be glad to do; he would pass, therefore, -from ; this question, about which he thought the House could scarcely entertain a doubt, viz., fltbt ' those persons living at Kanesville had no right to vote in Monroe county or to have their' votfes counted with those of Monroe county at all, inasmuch as they had never been attached '', to that county. It was perfectly immaterial whether these voters supposed they had a right to vote in Monroe county or not ; the law required that they should vote in the county in which they resided, or to which they were attached. Their right to vote was governed by actual residence, and not by what their supposition might be. But it was said that these persons all resided within the congressional district, and that it was unimportant therefore in what county their votes were counted. This amounted to the very thing against which he was contending. It was an assertion of the power of this house to disregard entirely a constitu- tional restriction. They could not come to such conclusion without denying virtually to the State of Iowa the power which the Constitution conferred upon her, to fix the place at which*" the votes should be given. A man who resided at A could not go and vote at B, although . it might be within the same congressional district, because it was under a constitutional privilege that he voted at all, and it was important that the provisions of State authority should, in such cases, be carefully observed, for they were the best preservatives against frauds. If a man had a right to vote, his right was known at the place where he resided,™ but if he might go abroad and vote elsewhere, ar;d among strangers, there would be no meanB of detecting illegal votes — of discovering whether a man had voted two or three times at the same election, or whether he had voted but once. But he did not rest his argument upon considerations of policy. He maintained that no man had a right to vote at any other place than in the county* in which he resided at the time of the election ; and if so, then clearly they could have ho right to count his vote any- ; where else, no matter whether he voted under a mistake, or whether he voted in the same congressional district or not. Mr. Evans, of Maryland, considered nearly all that had been said by Mr. Leffler ex- traneous, not being based upon the evidence, but upon his own knowledge, the statements of the Burlington "Hawkeye" and "Gazette," and other such authority. The gentleman had seen fit to travel but of his way to make a violent attack upon the Mormons, and had declared that they had temporarily stopped in Iowa while upon their way to California. He (Mr. E. preferred to the testimony showing that that people had opened farms, built houses, mills, &c, and had plainly manifested by their actions the animus manendi, thus entitling them to vote. He remarked at some length upon the bitterness of feeling exhibited by Mr. Leffler agains.t the Mormons, and intimated that it arose from the fact that their votes were at that election cast for the candidate of the whig party, whereas when in Missouri,, where they had voted with the democrats, they had been courted by fihe gentleman's party. He read a-letter of Judge Mason, of Iowa, and referred to other evidences to sustain his ex- planation of the "reasons for the course of that gentleman, and for the course, conformable thereto, of a portion of the democratic party in that State. He proceeded to consider the question of the admissibility of the voters of Kanesville, and took the ground that the evidence was full, entire, conclusive, that they were legal voters in Kanesville, and that they were entitled to vote in Monroe county. He said the report of, the gentleman from Pennsylvania [Mr. Strong] based the argument for the rejection of the Kanesville votes on the ground that Kanesville was not due west from Monroe county, and therefore not entitled to be counted. He referred to the evidenco to show that it was the common understanding of that entire county, both whigs and democrats, both residents at Kanesville and in Monroe county, thatKanesville was attacked to Monroe county j -that both democrats and whigs did vote there as the lawful place ; and he argued that, such CONTESTED ELECTION CASES IN CONGRESS. 137 being the case, their votes were legally entitled to be received and canvassed in Monroe county, even if subsequent developments proved that Kanesville was not due west of Mon- roe. But he contended that there was no evidence that Kanesville was north of west of Monroe — the only evidence relied upon being a survey which the sitting member had caused to be run, and which, having given no notice to the contestant, *he (Mr. E.) said could not be received as evidence. He intimated, moreover, that the line was loosely and unscientifi- ■ cally ran, and discarded it as in all respects unworthy to be received as evidence. He referred also to the conceded point, that the people of Appanoose county had taken jurisdiction and in- dicted Gheen for a murder committed at Traders' Point, (which was but eight miles south of' Kanesville, ) from which judicial determination it necessarily resulted that Kanesville be- longed to Monroe county. He contended that one hundred miles of wilderness intervening between Monroe county and Kanesville, the legislature of Iowa could not have intended, nor could it be reasonable, to construe the law with the same strictness with which it would be applied in an old settled county where metes and bounds are fully established, especially when by such technicality they would exclude a large number of citizens from the privilege of the elective franchise. He maintained the validity of the law which divided Polk county from Boone county on the ground that it was not a separation of a county, and held, as a'consequence, that the votes of Boone township, Boone county, should be disallowed in the canvass of Polk county. Excluding the votes, then, of Boone township, Boone county, from the official canvass, and adding thereto those of Kanesville, White Oak, Chariton, and Wells, the result he ar- rived at exhibited a majority for the contestant of 59 votes. Mr. Toombs said that all the objections were founded on the presumption that the action of this House is to be controlled by the action of the States. He insisted, however, that all persons qualified to vote for members of the legislature of a State had a constitutional right to vote for representatives in Congress. There was another point which seemed to lie at the bottom of this whole question. By a law of the State it was provided that a county should embrace within her limits for reve- nue, election, and judicial purposes all the unorganized country lying west of it. But when, under this law, a line is drawn due west, it had been contended that the citizens lying above or below that line are excluded from the exercise of their elective franchise. He contended that the law merely directed the manner in which the elections should be conducted, but did not destroy the right of the citizen to vote. If the people did not vote inexact conformity to this law their votes were not to be considered at lost. Destroy the vote on this ground and you violate the great republican principle for the sake of a mere technical quibble. He was opposed to the rejection of the vote of any citizen because the voter did not deposit his vote under or over a given line. Those citizens who reside outside of any regularly organized county have a right to vote in the district, and they may exercise that right anywhere within the district. There may be precincts scattered about throughout the district, and the voter may select to which of those he may be willing to go, and fie may cast his' vote in any county lying within the district. A State law may prespribe that he shall vote at some particular point, and that he shall vote nowhere else; but these provisions are merely to be regarded as precautions to prevent abuses — they were never intended to destroy votes. They were precautions, and wise pre- cautions, against fraud, but they were never enacted to disturb or abridge the sanctity of the ballot-box. It was not in the power of any law of the State of Iowa to take away the fran- chise of a citizen of the United States. The resolution of the committee was rejected, 102 to 94. The resolutions of the minority of the committee, with an additional one giving the seat to the contestant, were rejected by the casting vote of the Speaker. The Speaker was then directed to notify the Governor of Iowa that a vacancy existed in the first congressional district of that State. Note.— The debate will be found in vol. 21 of the Cong. Globe. The subjoined speeches were — For the report. ' Against the report. Mr. Strong pages 1222—1310 McDonald 1294 Harris 1301 Leoffler 1301 Thompson, of Pa... 1306 Mr. Thompson, of Kentucky page 1294 McGaughey ,. 1299 Evans 1302 Ashe 1303 Toombs ' 1307 VanDyke 1308 138 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-FIRST CONGRESS, FIRST SESSION. Littell vs. Bobbins, of Pennsylvania. • The legal presumption is always against the existence of fraud. Nothing but the most ■anequivocal evidence can destroy the credit of official returns. IN THE HOUSE OF REPRESENTATIVES, August 19, 1850. Mr. Strong, from the Committee of Elections, made the following report: The fourth congressional district of Pennsylvania is composed of a part of the county of Philadelphia, and embraces within its limits a municipal division called Penn district. The vote of the entire congressional district at the gene- ral election in October, A. D. 1848, as officially returned, was as follows : For John Bobbins, jr ' 6, 661 For John S. Littell 6,251 Official majority for John Eobbins, jr 410 In the official returns thus made no errors are alleged to have existed, except in Penn district. That district was divided by law into two precincts, denomi- nated east and west. The votes of these two precincts, as returned by the canvassing officers, were — For John Eobbins, jr 924 For John S. Littell.. .169 Majority for Mr. Eobbins 755 , This return of the votes given in Penn district is alleged,' by Mr. Littell, to be erroneous in the following particulars : 1st. He charges that at the east precinct, in said district, the names of two hundred and sixty-nine persons, who did not vote at all, were fraudulently placed upon the official list, and returned as having voted. 2d. He charges ,|hat at the west precinct, in said district, the names of one hundred and sixty-seven persons, who did not vote, were similarly interpolated, and returned as having voted. > i 3d. He alleges that fifty-one persons voted whose names do not appear on the official lists. 4th. He deduces from the foregoing, that, by deducting the interpolated names mentioned in the first and second specifications, and adding those men- tioned in the third, the aggregate vote in Penn district was seven hundred and eight, instead of one thousand and ninety-three, as officially reported. 5th. Of these seven hundred and eight votes, Mr. Littell claims to have received at the east precinct one hundred and ninety-six, and at the west sixty-seven — making in all two hundred and sixty-three, instead of one hundred and sixty-nine, as officially returned ; while he alleges Mr. Eobbins's vote to have been only four hundred and forty-five, instead of nine hundred and twenty- four, the number shown by the official returns to have been received by Mm. It will be perceived, from the above, that the contestant not only claims that there should be deducted from the votes returned as having been given to the sitting member, all those whom he charges to have been interpolated, but also CONTESTED ELECTION CASES IN CONGRESS. 139 ninety-four other votes, which he claims were given to him instead of Mr. Robbins. The foregoing are all the specifications of errors which the contestant has submitted. There are, however, three charges of fraud in the officers who con- ducted the election in Penn district, which are the following : 6th. The contestant avers that after votes had been polled for him, the offi- cersof the election took from the ballot-box the votes thus polled, and from the official lists of voters an equal number of names, and substituted other votes for the sitting member. 7th. The contestant. avers that the officers who conducted the election returned more persons as having voted than the whole number of electors resident within Penn district. 8th. The contestant avers that the official list of those who voted contains the names of some who were non-residents of the district at the time ; of some who lived in other districts, counties, and States ; and of some deceased. All these specifications and charges of fraud are traversed by the sitting member. How far the general allegations of fraud in the officers who conducted the election are sustained by the evidence submitted, we will inquire hereafter. Under a commission issued from the House, numerous witnesses have been examined in support of all the charges of the contestant. Voluminous exhibits have also been made, all which, together with the testimony, is already before the House. No testimony has been submitted on the part of the sitting member. Prelimi- nary to the examination of the evidence, however, there is an aspect in which this case may be viewed, deserving, we think, of consideration. Mr. Littell avers in his first, second, third, and fourth specifications, that the number of votes cast in Penn district was only seven hundred and eight, while the officers of the election certify that one thousand and ninety-three persons voted. If this averment be admitted as true, the result is that three hundred and eighty- five votes (the difference between 708 and 1,093) were illegally counted and certified. Now, if it be further conceded that all these alleged spurious or illegal votes were counted for Mr. Robbins, and the entire number, three hundred and eighty-five, be deducted from his aggregate, the declared result of the election is not changed. It has already been shown that the official majority of Mr. Robbins was four hundred and ten. If from thi3 be deducted the three hundred and eighty-five votes alleged to be spurious, there still remains a majority of twenty-five. This result is inevitable, unless the allegation of the contestant in his fifth specification — to wit, that he received more votes than were counted to him — he well founded. It is clearly incumbent upon him to show, not only that three hundred and' eighty -five more votes were counted than were actually received, and that they were counted -for the sitting member, but also to establish that other votes were given for him than those officially returned, before the right of Mr. Robbins to his seat can be impaired. Of this* however, there is no evi- dence in the case. Not only is there an utter absence of proof that Mr. Littell received more than the one hundred and sixty-nine votes, returned for him in Penn district, but no attempt has been made to support that asiertion. But we proceed to examine the evidence submitted, and inquire how far it sustains any of the allegations of the contestant. It has already been stated that no testimony was taken by the sitting member. That furnished by the contestant reveals the following state of facts: At a " Rough-and-Ready" meeting of the citizens of Penn district, a window committee was appointed to attend the polls at the election in October, 1848. That committee undertook to keep a list of the persons voting at the east precinct. That list was kept on the outside of the window at which the electors voted, while the officers who 140 CONTESTED ELECTION CASES IN CONGEESS. conducted the election were stationed within. At the east precinct there wer in the hands of this committee two printed lists of those who were registered as voters in the district, and an attempt was made to keep an account he " ticking," or marking with a lead pencil, the name of each person, as his vote was received. These lists were duplicates, though the evidence shows that no attempt was made to keep both lists during the entire day. At times the marking was made upon 'both, at other times upon one, and at still other times on the other list. Five different persons seem to have been employed at inter- vals in keeping these lists., After the close of the polls, the marked names were counted, and they were found to be, at that precinct, two hundred : and sixty-nine less in number than the number which the official lists, kept by the officers of the election, Bhowed to have voted. At the west precinct a similar* course was pursued, with these differences — that the lists were kept alternately by two persons ; that they had no printed list of voters, but endeavored to write the name of the elector as he deposited his vote, and kept their account in part upon separate pieces of paper, which were subsequently attached to each other. By a count of the names thus written, after the close of the polls it was ascertained that these two outside observers had upon their list one hundred and sixty-seven names less than were entered upon the record kept by the officers of the election. Such (with the exception of the testimony of a single witness hereafter to be noticed) is the evidence upon which the con- testant relies to sustain his allegations that more votes were counted and certi*- fied than were actually received. It is obvious that the credit to be attached to this testimony is entirely dependent upon the accuracy with which these outside lists were kept. In the absence of anything to rebut it, the presump- tion must be in favor of the correctness of the record kept by the officers of the election, and of their return. " Fraud is not to be presumed," is a maxim not only of law but of common justice. The means of knowledge, the facili- ties for accuracy, the impossibility of inattention, and the responsibilities con- nected with the. failure to discharge their duty, all unite" to secure a credence to the acts of the officers, which cannot be justly accorded to the acts of others, especially if those others be mere partisans. But, in addition to this, the laws of Pennsylvania are such as to guard most effectually against the perpetration of such frauds as are charged in the memorial of the contestant. They are such, indeed, as to render fraud impossible, unless with the connivance of all the officers whose duty it is to conduct the election. The statutes of that? State require at each poll the presence of one judge, two inspectors, two clerks, and one assessor, to receive the votes, to record the names of the voters, to ascertain and to certify the result. These officers are required to bei sworn, before entering upon their duties, faithfully to conduct the election, to' guard against fraud, and to make true returns. During the progress of the election, the judge has only to decide upon the qualifications of persons offering to vote in those cases in which the inspectors disagree. Both the inspectors receive the vote from the elector as he presents himself, calling his name aloud to the clerks, who each records it. The assessor is required to be present withi the lists of registered voters, that reference may be made to them if the in- spectors doubt the qualification of any person who offers to vote. Other sections of the same statute impose severe penalties upon any officer who may be guilty of fraud, or any delinquency in the discharge of his official duty^. When the election is closed, the boxes in which the ballots have been depositee! J are opened in the presence of all the officers, each ticket is read aloud by each of the inspectors, and entered by both clerks on the tally list. When the counting is completed, the result is publicly proclaimed, and a certificate made out and signed by the judge and the inspectors. It is obvious, therefore, that ,.j| fraud is imppssible, except there be a corrupt combination of all the officers of the election ; and mistake is hardly practicable. We have referred to these CONTESTED ELECTION CASES IN CONGRESS. 141 provisions of the statutes of Pennsylvania for the double purpose of rendering more intelligible to thoBe who are not familiar with the mode of conducting elections in that State the testimony submitted, and of calling attention to the fact that at the two precincts in Penn district the election was conducted and the returns made under the sanction of the oaths of the officers of the election. Two judges, four inspectors, and four clerks — ten officers in all — conducted the election in these precincts, made out the returns, and certified them as correct, under the obligation of an oath. Not only the legal presumption, therefore, which is ever against the existence of fraud, and in support of the acts of pub- lic functionaries, but that stronger presumption which arises from the oaths of public agents acting in view of the most stringent obligations, must be con- sidered as supporting the return of the officers in Penn district. It would be both unjust and* dangerous in the extreme to permit anything less than the most credible, positive, and unequivocal evidence to destroy the credit of official returns thus made. It is not sufficient to cast suspicion upon them ; they must be proved fraudulent. We have found no evidence of such a character in that which has been sub- mitted to us. Tr^e witnesses respecting the conduct at the election at the east precinct, with a single exception, (to be noticed hereafter,) were all active partisans, who attended the election and attempted to keep lists of the voters, acting under no other obligation than that which results from fidelity to party ; and even their testimony proves the lists kept by them to be inaccurate and incomplete. The report examines at length the evidence, coming to the conclusion that there was no testimony " destroying the presumption both of law and fact that the votes given in the east precinct of Penn district were as officially returned." The specific allegations of the contestant, they believe, were not sustained. The report concludes as follows : We have only to add, that a large part of the testimony and exhibits offered by the contestant, and submitted with this report, is in our opinion entirely irrelevant and inadmissible. It relates exclusively to the conduct • of the presidential election held in November, A. D. 1848, and not to the October election, when the representative to this house was chosen. We are unable to perceive that it sheds any light upon the question here to be adjudicated. Nor can we regard those exhibits, which are the mere results of comparisons made by the witnesses, legitimate evidence. They would be inadmissible in any court of law, and are, in our opinion, entitled to no weight here. They have, however, been returned by the commissioner, and have been printed with the testimony. It is for the House to distinguish that which is legal from that which is not. We submit the following resolution : Resolved, That the Hon. John Robbins, jr., is entitled to the seat which he holds in this house as the representative from the fourth congressional district of Pennsylvania. The House (September 11, 1850) agreed to the report without a division. Note. — The speech of Mr. Strong in support of the report will be found in Con- gressional Globe, vol. 21, part 2, page 1795 ; that of Mr. Van Dyke, against report, same volume, page 1779. 142 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-FIRST CONGRESS, SECOND SESSION. Jar ed Perkins, of New Hampshire. The delegation in the House from New Hampshire was elected under an act of the legis- lature districting the State in 1846. In July, 1850, the State was again districted. Shortly after a special election was held to fill a vacancy in the third district, and George W. Mor- rison was elected under the new districting act, though the other members of the delegation held their seats under the previous act. The committee held that the election was properly held in the towns denominated the " third district," under the act of July, 1850. in the house of representatives. December 16, 1850. ' . jit Mr. Strong, from the Committee of Elections, made the following report:,™- In this caBe no facts are in dispute ; those which are material to the correct adjudication of the question are admitted alike by the contestant and the sit- ting member. They are the following : By the act of Congress of June 25, 1842, it was enacted that, from and after the third day of March, A. D. 1843, the House of Representatives should be composed of members elected agreeably to a ratio of one representative for each seventy thousand six hundred and eighty persons in each State, and of one additional representative for each State having a fraction greater than one moiety of the said ratio, computed according to the rule prescribed by the Constitution of the United States. According to this ratio, the people of the State of New Hampshire are entitled to four repre- sentatives. The second section of the same act of Congress provides " that in every case where a State is entitled to more than one representative, the number to which each State is entitled under this apportionment shall be elected by districts composed of contiguous territory, equal in number to the number of representatives to which said State may be entitled, no one district electing more than one representative." In pursuance of this apportionment, and in compliance with the provisions of this act of Congress, the legislature of the State of New Hampshire, by their act, approved on the second day of July, A. D. 1846, divided the State into four congressional districts, and enacted that the counties of Rockingham and Strafford should constitute the first district ; the counties of Merrimack, Belknap, and Carrol should constitute the second; the counties of Hillsborough and Cheshire should constitute the third ; and the counties of Sullivan, Grafton, and Coos should constitute the fourth district. The same act prescribed, in subsequent sections, the time and manner of hold- ing congressional elections, of making returns of the votes, and of ascertaining the result. On the second Tuesday of March, A. D. 1849, elections were held in the four districts into which the State had been divided, and the Hon. Charles H. Peaslee was duly elected in the second district, and the Hon. James Wilson was elected in the third district, then composed of the counties of Hillsborough and Cheshire ; and each of those gentlemen took a seat in the House of, Representatives of the 31st Congress. ■ i On the eleventh day of July, A. D. 1850, the legislature of New Hampshire^ by their act approved on that day, redistricted the State for congressional elec- tions, and enacted that the counties of Rockingham and Strafford, and the towns of Wakefield, Brookfield, Wolfborough, and Tuftonborough, in the county«f Carrol, should constitute the first district ; the county of Merrimack, (except- ing the towns of Bow, Dunbarton, Hopkinton, and Henniker,) the county of a Belknap, the remaining towns in the county of Carrol, and the towns of HilM Bristol, Br idgewater, and Holderness, in the county of Grafton, should constitute the second district ; the counties of Hillsborough and Cheshire, and the towns of CONTESTED ELECTION CASES IN CONGRESS 143 Bow, Dunbarton, Hopkintcn and Henniker, in the county of Merrimack, should constitute the third district ; and the counties of Sullivan and Coos, and the remaining towns in the county of Grafton, should constitute the fourth district. The second section of the act repealed so much of the act of the legislature of July 2, 1846, as was inconsistent with the provisions of this act, and declared that the act of July 11, 1850, should go into effect from its passage. On the ninth day of September last, (1850,) the Hon. James Wilson, who had been elected on the second Tuesday of March, A. D. 1849, by the third district as then constituted, resigned his seat in the House of Eepresentatives. A vacancy having thus occurred, the governor of New Hampshire issued a precept for an election to be held on the 8th day of October, 1850, to fill the vacancy that had thus been made. This precept was directed to the district as constituted by the act of the legislature of the State, of July 11, 1850. In accordance with the precept thus issued, an election was held, and George W. Morrison received a majority of sixty-three votes over the contestant and all others. If, however, the votes given in the four towns of Merrimack county, (Bow, Dumbarton, Hopkinton, and Henniker,) which, by the act of July 11, 1850, were made a part of the third district, be rejected, then the contestant received a majority of two hundred and forty-seven votes. The memorialist contends that the votes given in those four towns cannot properly be counted, and that only the electors resident in the district as constituted by the act of July 2, 1846, could legally and constitutionally vote at the special election. This position is controverted by the sitting member, and thus is presented the only issue in the case. In view of the facts thus exhibited, your committee are of opinion that the claim of the contestant is invalid, and that he is not entitled to the seat which he contests. By the Constitution of the United States, the right to prescribe the times, places, and manner of holding elections for representatives in each State is declared to be in the legislature thereof, subject to the superior power of Con- gress to make or alter such regulations by law. That power, however, Con- gress has never exercised, unless it was partially exerted by the second section of the act of June 25, 1842, to which reference has already been made. Limited only, therefore, by the provisions of that section, the legislature of New Hamp- shire had plenary power to prescribe by what districts the elections should be made, and to change the boundaries of those districts at its pleasure, and at any time. No constitutional provision, no law of Congress, restrains this right originally to form, or subsequently to alter, the limits of congressional districts, at the discretion of the State legislature. It is conceded that Congress could by law have exclusively determined the extent of each district, and enacted that it should remain unchanged, under the apportionment, during the entire period of ten years. But this has not been done. The act of June 25, 1842, only enacted that the elections (alike general and special) should be by districts of contiguous territory ; and, under the law, the limits of each district must be as they were before its passage — such as the legislature of the State may from time to time prescribe. The act of Congress is merely commendatory. It was not possible to delegate to the State legislature the legislative power vested by the Constitution in Congress. It follows, of course, that the districting acts are the untrammelled action of the legislative assembly of New Hampshire, and con- sequently that the power to change the boundaries of a district remains unlim- ited in the same legislature. Your committee are not informed that this position has hitherto ever been seriously controverted. Such appears to have been the common understanding. The legislatures of several of the States, after having formed congressional districts in conformity with the recommendation of the act of Congress of June 25, 1842, have subsequently redistricted the States, or made changes in the boundaries of the districts previously formed. North 144 CONTESTED ELECTION CASES IN CONGKESS. Carolina, Georgia, Ohio, and Pennsylvania are among the number. Represen- tatives elected from the districts thus reorganized have been admitted to seats in the House without objection. More than twenty representatives elected by these remodelled districts sit unchallenged in the present Congress. But it is urged, on behalf of the contestant, that if the power be conceded to the legislature of New Hampshire to redistrict the State, the districting act of July 11, 1850, does not extend to an election to fill vacancies in the 31st Con- gress. In terms, however, it unquestionably does. It took effect from its pas- sage. It repealed so much of the former act as was inconsistent with its provis- ions. Immediately- on its passage, therefore there were no congressional dis- tricts in New Hampshire, other than those limited by this later act. An election to fill the vacancy occasioned by the resignation of Mr. Wilson could, therefore, have been held in no other manner than that in which the sitting member was elected. The third district, by which Mr. Wilson was elected, was a creature of the act of July 2, 1846 ; it was sustained by it and ceased with it. When, therefore, an election was ordered to be held on the Sth of October, 1850, no political division, no congressional district, embracing exclusively the counties of Hillsborough and Cheshire, had any legal existence. It had given place to the third district, as limited by the second districting act. The governor of the State coud issue his precept to none other than an existing district. Had the precept been sent to the counties of Hillsborough and Cheshire alone, it would have been sent to a political nonentity. But the contestant denies the power of the legislature to extend the provisions of the second districting act to. the supply of a vacancy in the representation in the 31st Congress. What limited their power? If they did not possess it, some provision of the Constitution or act of Congress must have denied its exist- ence or restrained its exercise. . No such provision is shown, and none is known to your committee. As has already been remarked, the division of a State into congressional districts is but a regulation of the manner in which elections shall be held. This power to prescribe the manner is distinctly declared in the Con- stitution of the United States to belong to the State legislatures, subject to the control of Congress; No clause in that Constitution declares the power to be exhausted when once exercised. No case is excluded from its operation. It expends alike to general and to special elections. Its exercise may be repealed at the discretion of the State legislature. Let it be supposed that all the members of the New Hampshire delegation had resigned contemporaneously with Mr. Wilson. Can it be asserted that elec- tions to fill the vacancies must have been held in the districts as constituted by ! the second districting act? If it be conced that they must have been so made, then the power of the legislature to extend the provisions of the act to the supply of a vacancy is admitted, and also the fact that the provisions did thus extend. It is important to distinguish between the existence of the power and the propreity of its exercise. The policy of changing the boundaries of congres- sional districts after they have once been united may well be questioned. But the House, in judging of the elections of its members, has only to inquire what the law is — not what, in their opinion, it should be. No judicial tribunal may go behind the law. In adjudicating upon any case of a contested election, the House can only determine whether such election has been held in accordance with existing legal provisions ; whether the qualifications of the person elected are such as the Constitution requires, and whether the returns have been legally made. If the legislature of New Hampshire had power to rearrange the conges- sional districts in that State at the time when they passed the act of July 11, 1850, if no constitutional obstacle existed to the passage of that act, then this House can look no further. It would transcend its legitimate province if it at- CONTESTED ELECTION CASES IN CONGRESS. 14'5 tempted to inquire whether the action of the New Hampshire legislature had been just or discreet. The argument of the contestant is based almost entirely upon the supposed injustice and inequality of the second districting act of the State; He rests his claim not upon any provision of the Constitution or law, but upon the alleged anomaly that because the electors resident in the towns of Bow, Dunbarton, Hopkinton and Henniker were in the second district at the time when the hon- orable Charles H. Peaslee was elected, if they be permitted to vote in the third district at the special election, they will be doubly represented and have two representatives in the thirty-first Congress. Waiving the consideration that this is wholly immaterial to the inquiry as to what the law is, and of course to the proper adjudication of the question, it may be observed that the instant these four towns were severed from the second district and united to the third, the in- habitants ceased to be represented by Mr. Peaslee, even in the sense in which the phrase is used by the contestant, and were represented by Mr. Wilson. But the argument of the contestant is founded upon an erroneous view of the theory of constitutional representation. The extent of the trust is not measured by the number of those who were the agents in the selection of the representative. The Constitution uniformly speaks of the members of the House as representa- tives chosen by the people of the several States. No matter how or by whom elected, no matter how limited may be the elective franchise, each is the repre- sentative of the entire people of a State, and not the less so because only a part of the people participated immediately in his election. True, they are elected by districts, but the division of a State into districts is a regulation of the manner of the election, and not of the extent of representation. The district is a poli- tical division, formed solely for the purpose of election; it is aterritorial division. While its limits remain fixed, its inhabitants may change. That electors who voted in the second district in March, 1849, voted also in the third in October, 1840, is no unusual occurrence. Had the second districting act never been passed, the same thing might have happened by the removal of electors from one district to the other. In that case, as now, they would have voted for two members of the same Congress. So it may occur, and often does, that an elector, after having voted in onp State fora representative to this house, removes to another, acquires citizenship, and votes for a second representative in the same Congress. In the State of Virginia, freeholders in two congressional districts may-vote, upon the same day, for a representative in each district. If this objection urged against receiving the votes given in the four towns made part of the third district by the act of July 11, 1850, be valied, it is equally available against the reception of votes from electors who have changed their residence, and those in Virginia who have already voted in one district. There is, however, no constitutional or legal pro- vision which prohibits such voting, and your committee are not informed that even its propriety has ever been assailed. This has properly been left to the discretion of the people of the several States. It certainly should not influence the House while sitting as a judicial tribunal. In the discussion of this case before your committee, one other and only one other argument was submitted by the contestant. It was, that if the legisla- . ture of New Hampshire could change the boundaries of the district, they might have so divided it as to render it impossible to determine to which district the governor's precept should have been sent. This may be admitted, but it does not disprove the existence of the power. It is certainly illogical to argue that because a power may be abused, therefore it does not exist. A deed or a will may be so uncertain in its provisions as to be void ; but who would argue from this that the grantor or testator had not the power to make a deed or a will 1 In this case no such uncertainty exists. As already observed, the election H. Mis. Doc. 57 10 » 146 CONTESTED ELECTION CASES IN CONGRESS. must have been held as it was, or there could have been no supply of the vacancy. Upon a review of the whole case, therefore, your committee recommend the adoption of the following resolution : Resolved, That George W. Morrison is entitled to the seat which he holds as a representa- tive from the third congressional district of New Hampshire. January 3, 1851. Mr. McGaughey, on the part of the minority of the Committee of Elections made the following report : The material facts in this case have been agreed upon by the parties, and are so fully set forth in the report referred to that a restatement of them at length is deemed to be unnecessary. If the people inhabiting the territorial limits of the district represented by Hon. James "Wilson have the right to fill the vacancy occasioned by his resigna- tion, then the memorialist, Jared Perkins, is entitled to the seat which he claims, having received a majority of 243 votes over all other candidates at the ltae election, within those limits. But if the people inhabiting the territorial limits of the district called number three by the act of July 11, 1850, are entitled to fill the vacancy, then George W. Morrison is entitled to the seat which he occupies, having received 63 votes over all others within those limits at the late election. It is the opinion of the undersigned that the vacancy occasioned by General Wilson's resignation can be filled only by the people of the territory he repre-, sented; all other people of New Hampshire continued to be represented after his resignation as before, and were affected by his resignation in no other way than the people of another State might be; consequently they can justly claim neither to fill the place which he occupied, nor to cast in their votes with the votes of the people of that district so as to decide who shall represent them. The act of June, 1846, districting the State of New Hampshire, was the first compliance by that State with the law of Congress of 1842, requiring representatives to be chosen by districts. General Wilson was, on the second Tuesday of March, 1849, elected by the third district thus constituted, as a member of the 31st Congress. The act of 1846 was repealed by the act of July 11, 1850, so far as the same was inconsistent with tbe provisions' of this last act, making new districts. We do not believe that a just construction of the act of July4dSf*will show that act to be in conflict with the claim of the memorialist. It does not purport to provide for any method of filling vacancies that might occur in future, and beyond all question it was understood as providing only for the election of members of future Congresses. Such are the terms of the act, and such must also be its spirit. A vacancy in the House of Eepresentatives is the occurrence of an event by which a portion of tbe people are left unrepresented, and the filling of that vacancy is directed by the Constitution in such explicit language as requires no aid from State enactments to perfect the right. The second section of the first article in the Constitution contains the following provision : When vacancies occur in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. This is the only provision of law on the subject of vacancies, and it is ample and sufficient. No act of the legislature of New Hampshire purports to interfer&jg in the matter, and tbe act of July ought not, in our belief, to be understood as" requiring the vacancy occasioned by General Wilson's resignation to be filled by any other people than those whose representative he was. CONTESTED ELECTION CASES IN CONGRESS. 147 Had such been the purpose of the act, we believe it was incompetent for the law-making power of that State to accomplish the object, while this house hold the right to judge of the elections of its members. It would not be a preservation of the purity of the elective franchise, nor would it be a just guardianship of the republican principle, that all have a right to be represented, to admit the power of a State legislature to provide that a portion of the people should have two representatives in Congress, while another portion should have none, or not be represented by the man of their choice. If the sitting member is allowed to hold his seat, it is by virtue of the votes of Bow, Dunbarton, Henniker, and Hopkinton, which decide the election in his favor, against the contestant, who had a majority of votes in the remainder of the district — being the district which elected General Wilson. The people of these towns participated in the election of the Hon. C. H. Peaslee, whose repre- sentative he now is, upon the floor of this house ; and to permit them to turn the scale by their votes in favor of the sitting member, is to admit a double representation, which is unreasonable and unjust. It is, besides, in disregard of the law of Congress of June, 1 842, which declares that no one district shall he entitled to two representatives. If the people who choose a representative are not entitled to fill the vacancy happening by his resignation, it is impossible to tell what portion of the popula- tion may most properly exercise this privilege. It seems to be assumed in this case that the new district made by the act of July 11, 1850, and numbered three, has the right to send a representative in place of General Wilson, because the number corresponds with that which General Wilson represented. But the order of numbering is an unimportant circumstance, and the first or the fourth district might have been as properly called the third as any other ; yet it would be a strange assertion, that on this account such district would be authorized to have two representatives during the remainder of the 31st Congress. But if it be said that General Wilson's old district ought to make a part of the new, in order to give the new district, numbered three, the right to send his successor, it may be asked which half of his district would be authorized to partake in the choice, suppose the old district had been divided into two nearly equal parts by the new division, and neither of the parts been in the district numbered three. Several of the subscribers believe that when a State has once complied with the act of Congress of 1842,' directing the choice of members by districts, it is not competent for the States to redistrict till after another census. Although we are not unanimous in this opinion, we agree in recommending the adoption of the following resolution: Resolved, That Jared Perkins is entitled to the seat claimed by him, as the representative to fill the vacancy occasioned by the resignation of James Wilson. JOHN VAN DYKE. J. B. THOMPSON. G. R. ANDREWS. E. W. McGAUGHEY. The House adopted the report of the committee, 98 to 90, and Mr. Morrison retained his seat. The debate was confined to the points argued in the reports. Note. — In the debate the following gentlemen spoke: In support of .the report: Mr. Strong — vol. 23, Cong. Globe, page 183; Mr. Woodward, page 189 ; Mr. Disney, page 193 ; Mr. Hibbard, page 194 ; Mr. MeLane, page 199 ; Mr. Harris, page 201; against: Mr. Thompson, of Ky., page 185; Mr. Van Dyke, page 197; Mr. Schenck, page 205. 148 CONTESTED ELECTION CASES IN CONGEESS. THIETY-FIEST CONGEESS, SECOND SESSION. W. 8. Messervy, of New Mexico. The claimant was sent to Washington by certain inhabitants of New Mexico to represent them in Congress before the Territory was organized. Held by the committee that his claim should be rejected. The case was not acted on in the House. IN THE HOUSE OF EEPEESENTATIVES, February 6, 1851. Mr. Strong, from the Committee of Elections, made the following report: By the treaty of Guadalupe Hidalgo, which transferred to the United States the sovereignty of the country now known as the Territory of New Mexico, the political organization which had previously existed there was extinguished, and the inhabitants were left without any form of government recognized by our Constitution and laws. It was, doubtless, supposed that Congress would) without delay, organize there a territorial government, of a similar character with those which- have heretofore been formed for other portions of our unorganized territory. Owing to causes to which it is unnecessary now to refer, this expected action of Congress was long delayed, and the resident population of the country were left to suffer all the evils and embarrassments which attend a disorganized state of society and the absence of a regular government. Tired of waiting for the unsolicited action of Congress, and with a view to remedy these evils, a large number of the citizens assembled at Santa F6, on the 21st day of August, A. D. 1849, to consult upon the propriety of organizing a suit- able territorial government. At this meeting it was resolved to recommend to the inhabitants of the country the election of delegates to a general convention, the object of which should be " to concert such plans and adopt such measures as might be most effectual for the attainment of good civil government." In furtherance of this resolution, (as has heretofore been stated by your committee in a former report,) Lieutenant Colonel B. L. Beall, then the acting military commandant at Santa Fd, issued a proclamation to the citizens of New Mexico, recommending to them to assemble in mass meetings in their different counties, and at designated places, on the 10th day of September, 1849, for the purpose of electing delegates to a general convention to be held at Santa F6 on the 24th day of September then next ensuing. The proclamation averred the object of the convention to be " the concert of such plans and the adoption of such measures as might be most effectual to the attainment of a good civil govern- ment, and the appointment of a delegate to go to Washington to enforce its suggestions and to urge the early action of Congress in its behalf." In con- formity with the recommendations of this proclamation, elections were held, and the persons elected met in convention at Santa Fe" on the 24th day of Septem- ber, A. D. 1849, and on the same day elected Hugh N. Smith, esq., to be a delegate to represent the interests of the Territory of New Mexico in the Con- gress of the United States. The convention then proceeded to prepare a plan to be submitted to Congress, as the basis upon which they desired the civil government of New Mexico to be formed, and forwarded the same by Mr. Smith, with instructions to urge upon Congress to give to the country a terri- torial government, embracing the provisions contained in the plan by them recommended. Mr. Smith received a commission as a delegate, signed by the president of the convention, and attested by its secretary. Thus elected and instructed, and with this commission, Mr. Smith presented himself at the first session of this Congress, and asked to be admitted to a seat as a delegate!) CONTESTED ELECTION CASES IN CONGRESS 149 The House, however, on the 19th day of July, A. D. 1850, refused to accord- to him the seat which he claimed. While these proceedings were pending, and long before any decision upon the application of Mr. Smith had been made, on the 25th day of May, A. D. 1850, another convention was assembled at Santa Fd. This convention formed a constitution for a State government. The preamble of the constitution declares that the people of New Mexico did " ordain and establish the following constitution," and did mutually agree with each other to form themselves into a free and independent State, named New Mexico. The tenth section of the schedule attached to this constitution pro- vided that the military and civil governor of the Territory should be requested, immediately on the adjournment of the convention, to issue writs of election to the prefects of the several counties, requiring them to cause an election to be held on the 20th day of June, A. D. 1850 ; the electors to vote for or against this constitution, for a governor and lieutenant governor, a representative in the Congress of the United States, and senators and representatives to the legisla- ture. The same section of the schedule made provision for the manner in which the votes should be counted, and directed that the returns should be forwarded to the secretary of the Territory, who should transmit them to the legislature on the first day of their session. The eleventh section of the schedule directed that the governor elect, or the lieutenant governor acting as such, should certify the returns of votes for or against the adoption of the constitution, and should send them to the Secretary of State of the United States within thirty days from the day of election. The twelfth section is as follows : It shall be, and is hereby made, the duty of the governor, or lieutenant governor acting as such, if it appears from the returns of the votes for and against this constitution that it has been adopted by the people, immediately to cause a fair copy of the same, together with a fair digest of the votes given for and against the constitution, to be forwarded to the Presi- dent of the United States, to be laid before the Congress of the United States. On the 28th day of May, A. D, 1850, John Munroe, styling himself " civil and military governor of the Territory of New Mexico," issued his proclama- tion, (a copy of which is appended to this report,) reciting the proceedings of the convention and directing an election to be held in accordance with the pro- visions of the tenth section of the schedule of the constitution, on the 20th day of June, A. D. 1850. The proclamation contained the following proviso : " It being provided and understood that the election of all officers in this election can only be valid by the adoption of the constitution by the people, and other- wise null and void ; and that all action of the governor, lieutenant governor, and of the legislature, shall remain inoperative until New Mexico be admitted as a State under said constitution, except such acts as may be necessary for the primary steps of organization and the presentation of said constitution properly before the Congress of the United States. The present government shall remain in full force until by the action of Congress another shall be substituted." An election was accordingly held, and six thousand seven hundred and seventy-one votes were given in favor of, and thirty-nine votes against, the adoption of the constitution. At the same time Henry Connelly was elected governor, Manuel Alvarez lieutenant governor, and William S. Messervy a representative in Congress, he having received four thousand nine hundred and thirty-four votes, and Hugh N. Smith three thousand four hundred and seventy- four votes, for that office. The legislature met and elected two persons to represent the State in the Senate of the United States. Thus elected, Mr. Messervy claims to be admitted to a seat in the House of Representatives, as a delegate from the Territory of New Mexico, on the same footing with the delegates from the Territories heretofore organized under the laws of the United States. He presents the following as his credentials : 150 CONTESTED ELECTION CASES IN CONGRESS. United Statbs op America, State of New Mexico. I, Manuel Alvarez, governor of the State of New Mexico, do hereby certify that William S. Messervy was, on the 20th day of June, A. D. eighteen hundred and fifty, duly elected by the qualified voters of the State of New Mexico to represent said State in the thirty-first Congress of the United States. In testimony whereof, I have hereunto set my hand, and affixed my private seal, there being no seal for the State. Done in the city of Santa Fe, this ninth day of July, [L. s.] A. D. eighteen hundred and fifty. MANUEL ALVAREZ. By the governor : LEWIS D. SHEETZ, Secretary of State. A similar certificate is also presented, signed by a certain Donaciano Vigil who calls himself secretary of the Territory of New Mexico. The foregoing are all the facts which relate to the application of Mr. Mes- servy, and in the opinion of your committee they show not merely that he has no rightful claim to the seat which he asks, but that it would be highly inexpe- dient to admit him. It may be observed that the application for admission as a territorial dele- gate is directly in conflict with Mr. Messervy's credentials. It is an attempt to change the character in which he was sent. The constituency which elected him sought to obtain a State, not a territorial form of government. In trans- mitting their constitution they sought for the admission of New Mexico into the Union as a State, and for the reception of Mr. Messervy as the constitutional representative of the people of a State in the Union. By no action of theirs did. they authorize him to act in an inferior or any other capacity than as such a representative. Nothing which they have done can be construed into the expression of a desire that the person whom they sent should sit on the floor of the House until the admission of New Mexico into the Union. On the contrary, it may fairly be inferred that the choice which they made of a State form of government negatives the wish to have merely a territorial delegate here. It is not easy to perceive how the House can with any propriety aid the appli- cant thus to throw off the authority conferred upon him by the people who sent him, and assume another with which he was never invested. But leaving this consideration, and conceding for the present that he was elected and sent to act as a territorial delegate, your committee are of opinion that his admission would be impolitic, and a dangerous precedent. It would be a departure from all the established usages of the government It need not be said that the House of Representatives is now and ever has been composed exclusively of members elected under the Constitution and laws of the United States, and in accordance with the provisions of that Constitution and those laws. During its entire existence of more than sixty years no person elected in any other mode, or sent from any constituency unknown to the Constitution and laws, has been admitted to a seat. Territorial delegates have indeed been admitted, and it is true that they are not mentioned in the Constitution. But they have in every instance been admitted under an unvarying rule. In every case the delegate has been chosen under laws enacted by Congress, and from a Territorial government subordinate to and emanating from the Constitution and laws of the United States. The celebrated ordinance of July 13, 1787, made the first provision for the election and admission of a territorial delegate. It provided that the legislature of the Territory northwest of the Ohio might elect by joint ballot a delegate to Congress, who should have a seat in the House" of Representatives during the existence of the territorial government, with the privilege of debating, though not of voting. That ordinance was contempora- neous in its passage with the formation of the federal Constitution, and was recognized by it. It was also affirmed by an act of the first Congress, and a delegate thus elected was permitted to hold his seat. In accordance with this CONTESTED ELECTION CASES IN CONGRESS. 151 precedent, as other territorial governments have been formed, and became enti- tled under their organic law to legislative assemblies, Congress has uniformly provided by law for the election of a delegate with similar privileges. In some instances the law has provided that the delegate should be elected by the ter- ritorial legislature, and in others by the people included under the government. But in every case the delegate admitted has been chosen under laws previously enacted by Congress, and from a government subordinate to and emanating from the Constitution and laws of the United Sta ts. So uniform has been this usage, and so well understood, that by the act of Congress <» March 3, A. D. 1817, the term of office and the privileges of such delegates were expressly defined. That act, however, speaks only of delegates from temporary govern- ments then established, or which might thereafter be created, and which were or might be thereafter authorized by act of Congress to send delegates. No pro- vision was made for any other. It was not contemplated that there could be any other. It may, therefore, safely be averred that the basis upon which rests the admission of a territorial delegate, if not constitutional, is fundamental. There have been political organizations in parts of the unorganized territory of the United States, but none such have been permitted to enjoy representation here. The case of Almon W. Babbitt, who claimed to be admitted as a delegate from Deseret during the last session of this Congress, is in most respects similar to this. In that case a State government had been formed, and Mr. Babbitt had been elected by the legislature, but this house refused to admit him to a seat. The case of Hugh N. Smith, already mentioned, affords another instance of the adherence of the House to the unbroken usage of past years. If it be regarded as a question of expediency, both his ease and Mr. Babbitt's in many aspects presented stronger claims than the one now under consideration. The one was elected by a convention — the other by the people in mass. In both these cases, appealing strongly, as they did, to the discretion of the House, no departure was permitted from former practice. Precedents so numerous, usage so unbro- ken, extending through all our past history, should have controlling influence in the exercise of the discretion of the House. Unlike all who have been admitted as territorial delegates, Mr. Messervy founds his application upon neither the Constitution nor laws of the United States. His election was not subordinate to, but in disregard of them — in hostility even to the territorial government subsequently formed by Congress. The argument in favor of the applicant is, that the resident population of New Mexico should be represented. As already observed, it is neither the theory nor the practice of our government that any individuals living under no political organization should enjoy either complete or partial representation. The admission of such a principle would be eminently dangerous. Your com- mittee, however, do not propose to discuss the evils which would inevitably follow the establishment of such a precedent. They have already done this in a report heretofore submitted to the House, which received its sanction. It should, however, be remembered that the supposed necessity which was averred to exist in the case of Mr. Babbitt and Mr. Smith has no existence in this case. Provision has already been made by law for a territorial delegate. The act of Congress of September 9, A. D. 1850, provided for the establishment of a ter- ritorial government over New Mexico. The fourteenth section of that act authorized the election of a territorial delegate, and provided that the first elec- tion should be held at such time and places, and be conducted in such manner, as the territorial governor should appoint and direct, and that at all subsequent elections the times, manner, and places should be prescribed by law. True, the provisions of that act were suspended until the boundary between the United States and the State of Texas should be adjusted ; but that boundary having been determined, the act is now in force. There is, therefore, at this day pro- vision made by law for territorial representation of New Mexico. It necessa- 152 CONTESTED ELECTION CASES IN CONGRESS. rily negatives both the legality and expediency of any other. Mr. Messervy has no pretensions to having been elected under this organic law ; but, on the contrary, his credentials are in antagonism to it. Were he admitted to the seat which he claims, there would be no legal impediment to the admission of another delegate from the Territory of New Mexico. It may be, indeed, that no such delegate will appear during this Congress ; and should such be the case, your committee are unable to perceive that any serious evils would result either to New Mexico or to the country at large. Certainly no such overruling necessity is shown to exist as should induce the House to disregard a uniform usage of more than sixty years, and establish a precedent which may lead to unending confusion in the future. Your committee unanimously recommend the adoption of the following reso- lution : Resolved, That William S. Messervy, esq. , be not admitted to a seat in the House as a delegate from the Territory of New Mexico. The case was not acted upon in the House. THIRTY-SECOND CONGRESS, FIRST SESSION. Committee of Elections. Mr. Disney, Ohio. Mr. CaskibS, Virginia. Ashe, North Carolina. Evving, Kentucky. Williams, Tennessee. Davis, Massachusetts. Hamilton, Maryland. Gamble, Pennsylvania. Sohermerhorn, New York. Wright vs. Fuller, of 'Pennsylvania. The intent of the law, requiring notice to be given specifying the particular grounds of the contest, was to prevent any surprise being practiced upon the sitting member, and to put him upon a proper defence. It is not necessary to furnish the incumbent with a list of alleged illegal voters. A contestant can take evidence touching the qualifications, duties and acts, and conduct of officers conducting an election. The House is compelled, when adjudicating in any matter affecting the elections, returns, or qualifications of any of its members, to make the law of the respective States, from which such members may be returned, its rule of action. A judge of an election cannot usurp the duties of an inspector. The House laid the whole subject upon the table. IN HOUSE -OF REPRESENTATIVES, April 22, 1852. Mr. Ashe, from the Committee of Elections, made the following report : The petition of the contestant, with all of the accompanying papers, was referred to the committee on the 10th of December last, since which time the committee have been most assiduously employed in the examination of the testimony taken in this case under the provisions of the act of last Congress, regulating the mode and manner of taking evidence in contested elections, and in 'hearing arguments from both parties on the merits of the case. The sitting member produced before the committee regularly authenticated returns from the different election precincts composing the 11th district, which, summed up, give CONTESTED ELECTION CASES IN CONGRESS. 153 he sitting member 6,216, and the contestant 6,157, leaving in favor of the sitting member a majority of 59 votes. The contestant, considering himself aggrieved by the mode and manner in which the election in the Danville pre- cincts, in the county of Montour, was conducted, (the returns of which are 32 for contestant and 659 for sitting member,) served, within the tifne prescribed by law, a notice on the sitting member of his intention to contest his seat. The sitting member admitted the service of the notice, and, as empowered by the last clause of 1st section of the above act, gave due information to the con- testant " of the other ground upon which he rested the validity of bis election." As the sitting .member raised before the committee an objection that the con- testant's notice was insufficient — not being in compliance with the requirement of the act of Congress — the committee have thought it but proper to transcribe the notice in full, so that the House might be enabled to determine what weight should be given to the objection : To Henry M. Fuller, esq., returned as member elect to the thirty-second Congress of the United States, from the eleventh congressional district of the State of Pennsylvania: Sik : You are hereby notified that it is my intention to contest the election by which you are returned as the member from the eleventh congressional district in Pennsylvania to the House of Representatives of the United States for the thirty-second Congress ; the said elec- tion having been held on the second Tuesday of October, (the 8th day, ) 1850. I shall proceed under the provisions of an act of Congress of the United States, entitled "An act to prescribe the mode of obtaining evidence in cases of contested elections," passed during the thirty-first Congress,' of which you will take notice. The following are the grounds upon which I rely in the said contest, to wit : 1. That the election at the Danville borough poll and' the Mahoning poll, within the present county of Montour, and both within the said congressional district, were irregularly and illegally conducted: First. In the reception of votes, by the officers of both election boards, from persons who were not, at the time, qualified electors within the meaning of the statutes of Pennsylvania — the said persons being, at the time, either under the age of twenty-one years, non-residents, foreigners not naturalized, or persons not regularly assessed or returned ; neither of which classes of persons are, by the laws of Pennsylvania, entitled to the elective franchise, so as to be legally qualified to vote for a candidate for the office of member of the House of Eepre- sentatives of the United States. Second. That the officers of the said Danville borough election board allowed and permitted ' persons to introduce and deposit ballots in the box for representative aforesaid, who were not members nor officers of the said board. Third. That the officers of the said Danville borough election board ajso allowed and permit- ted persons who were not members of the said board, and not duly qualified to act as such, to handle and take tickets out of the box deposited there for representative as aforesaid ; and also permitted and allowed such disqualified persons to sum up and count such votes, so deposited as aforesaid, as well as to keep tallies of them, in violation of the laws of Pennsylvania. Fourth. That certain of the ballots deposited in the box for representative as aforesaid, at the said Danville borough election poll, for the undersigned, contestant, were rejected, thrown out, and not counted by the said board ; and that in fact, and as the undersigned verily be- lieves, a large number of votes deposited for him for representative, as aforesaid, were not allowed him by the said election board, in violation of the law governing such election. Fifth. That the ballots deposited in the box for representative, as aforesaid, at the said Danville borough poll, do not correspond in number with the list of the names of voters, nor with the tally lists kept by the proper officers in conducting said election. Sixth. That at the said Danville borough poll persons werepermitted to vote for representa- tive, as aforesaid, whose names were not on the list of taxables furnished by the county com- missioners, and that the reasons of such votes were not inserted by the inspectors of said elec- tion opposite the names of said voters in the said list, nor by the clerks of said election in the list of voters kept by them at such election. Seventh. That two of the officers of the said Danville borough poll were ineligible and not competent, according to law, to hold and conduct the said election. 2. The returns of the election for 1 representative aforesaid, in and for the several districts composing the present county of Montour, were irregular and illegal, because the statutes of Pennsylvania require one of the lists of voters, tally-papers and certificates, duly sealed, to be returned into the office of the prothonotary of the proper county within three days after any general election ; and the said election papers and returns of the said several districts of now Montour county were not made into the office of the prothonotary of any county for more than one month after the said election, and were never returned or filed in the office of the 154 CONTESTED ELECTION CASES IN CONGRESS. prothonotary of Columbia county, as they should have been, the said county of Montour not being a county created and organized at that time, but being still a part of the county of Columbia within the Pennsylvania apportionment act for representatives in Congress, passed the 25th day of March, 1843. 3. A return judge of Montour county should not have been permitted to take a seat at the meeting of judges assembled for the summing up of the votes cast for representative in Con- gress, in the several counties composing the eleventh congressional district, Montour not be- ing a county at the time, or a separate election district, so as to entitle her to send a return judge agreeably to the statute of Pennsylvania. The ninth section of the statute erecting Montour county, passed 3d May, 1850, provides that "the citizens of the counties of Colum- bia and Montour shall, until the next apportionment by the legislature, elect members of the House of Representatives, Senate and Congress, as if this act had not been passed, " (Pamphlet Laws of 1850, page 660 ;) and no new congressional apportionment has since the passage of said act been made. , 4. That persons were permitted and allowed to vote at the election polls in Pittston, and the borough of White Haven, in the county of Luzerne, and at the election polls at Bloom and Briar creek, in the county of Columbia, and at the election polls at Braintrim, in the county of Wyoming, the same election polls being within the eleventh congressional district, for repre- sentative aforesaid, who were not entitled respectively to vote at such election polls. 5. That one of the clerks of the borough of Wilkesbarrepoll, in the said county of Luzerne, was incompetent by law to act as an officer of the board, at the said election for representative aforesaid, he being at the time the chief clerk and agent of the postmaster at the said borough of Wilkesbarre, having the charge of the post office at that place. 6. The certificate of the return judges does not on its face present a case under the laws of the United States, and of the State of Pennsylvania, as to entitle the person to take his seat by virtue of it.. And so the said contestant avers, and verily believes, that at the several polls above named and particularly specified there were illegal votes enough polled and counted to have changed the result of the said election, and that if the said illegal votes had not been received and enumerated, the undersigned would have had a majority of all the votes cast in the said eleventh congressional district for representative as aforesaid; and that the several illegal acts committed by the said several election boards, together with the informalities of law thereto pertaining, are sufficient in law and fact to entitle the undersigned, contestant, to a seat in the thirty-second Congress from the said eleventh congressional district of Pennsylvania. HENDRICK B. WRIGHT. Wilkesbarre, Pa., February 27, 1851. A majority of the committee deeming this notice sufficiently certain and definite to apprise the sitting member of the reasons •'. of the grounds" on which his election was contested, overruled this objection. The first section of the law which directs the contestant to give notice to the sitting member reads in conclusion thus : " And in such notice shall specify particularly the grounds upon which he relies in the contest." What are the " grounds," the reasons on which the seat is to be contested ? The notice furnishes us with the answer : The gross and flagrant misconduct and irregularities of the officers constituting the election board, and also the reception of such a number of illegal votes as changed the result of the election. The intention of the law requiring this notice to be given was to prevent any surprise being practiced, to put the sitting member upon a proper defence. As no surprise has been alleged — no want of due information protested — the committee could but conclude that the notice, within the purview of the law,, was all-sufficient. If, as the sitting member contends, the act required that the names of the illegal voters should have been particularly specified in the notice, we would certainly have the fact set forth and declared in the sixth section, which provides that the " names of the wit- nesses to be examined, and their places of residence, should be given, by leav- ing a copy with the person to be notified, at his usual place of abode, at least ten days before the examination." The furnishing of a list of names of the illegal voters might possibly have put the sitting member in a stronger position to rebut the contestant's proof; but that the contestant was required to furnish such a list is not within the letter nor demanded by the spirit of the statute. What are we to understand by a specific statement of the contestant's case 1 Most certainly the grounds upon which he relies in the contest, and not an enumeration of the names of the illegal voters. Such a construction would at CONTESTED ELECTION CASES IN CONGRESS. 155 times render it impracticable to detect and expose the most flagrant abuses on the elective franchise, and this law, which was intended to facilitate such detec- tion and exposure, would have the opposite effect. The circumstances attend- ing this case afford the strongest exemplification of this fact. From the unusual large vote polled at this election in the Danville precinct (being near two hundred more than usual) the contestant was induced to suspect the receiving of fraudulent and illegal votes. The vote in the Danville precinct the October following the election of members of the thirty-second Congress was five hundred and fifty-five ; being one hundred and seventy- six less than the year before. At this election (1851) there was a candidate for governor of the State, as also candidates for the supreme and district courts, voted for, from which it is fair to presume that every vote was polled. The discrepancy of the vote of the year immediately preceding the election contested is still more glaring ; the number falling short by two hundred and sixty-eight compared with the vote of 1850. An examination satisfied him of the truth of his suspicions. He served the notice, cited above, on the sitting member, and had subpoenas issued by a United States commissioner, demanding the attendance of some one hundred and eighty witnesses, whom he had reason to believe were of the class of illegal voters, or whose testimony might assist him in ferreting out the abuses complained of. Of this number so subpoenaed, only some sixty-three appeared in pursuance of the summons. The remaining number putting the process at defiance, obsti- nately and contemptuously refused to appear. Ignorance of the laws may be pleaded in their justification, (a large proportion of the voting population being foreigners, engaged in different sorts of manufactories, and possessing few or no opportunities of legal information,) but their employers and advisers cannot claim the benefit of any such extenuation. They are presumed to have known the law, and their conduct in advising and counselling their ignorant dependents to a contemptuous disregard of the process of a United States commissioner, and that done manifestly with the design of suppressing investigation into alleged corruptions, cannot be too severely reprobated by the House. It may be inquired Why did not the commissioner coerce the attendance of these wit- nesses by process of attachment i The answer is found in the fact that no such power is given in the act of Congress, and he was deterred from using a doubt- ful power by the threats of a severe prosecution — threats made by the counsel of the contestant in his presence, and in the presence of the commissioner at the time of performing his official duty. The committee do not mention these cir- cumstances to prejudice the right of the sitting member, for it affords us pleasure to state that we have no evidence of any participation by him in this highly criminal conduct of his attorney and friends ; but to show that in such a com- munity — so excited, so ignorant, so badly counselled — it was impossible for the contestant to give the names of the illegal voters in his notice. But besides all this, if it should be assumed that in the mere canvassing of voters to test their legality, without at all intending to reflect upon the oflicers of the election board in the discharge of their duties, the names of the supposed illegal voters are required by the laws to be specified in the notice, yet there is another point upon which a majority of your committee cannot doubt the suffi- ciency of the notice to sustain the conclusions of this report. It is alleged in the notice that the election at Danville was illegally and irregularly conducted, and in what manner is particularly specified, by reason of which the result of the election of the sitting member was effected and secured. Here is a full, replete, and grave charge. It involves the conduct of the officers, and alleges the results of that conduct. Under the specifications of the notice, the majority of the committee fully concur that contestant could take evidence touching the qualifications, the duties, the acts, and conduct of the officers ; and upon this view, independent of the other, we hold the notice to be good and flllffifl PTlt. qnfl in prtTTmllQnoo Trrifli 4-Ttq Inn" 156 CONTESTED ..ELECTION CASES IN CONGRESS. Having disposed of this preliminary point, the committee proceeded to the examination of the law and testimony involved in this case. In discharging the last duty, the committee considered that, although the House of Represen- tatives, by virtue of the fifth section of the first article of the federal Constitu- tion, are made the judges of the election returns and qualifications of its members, yet this power is not plenary, but is subordinate to the second and fourth sec- tions of the same article — the first of these sections providing that the electors of the members shall have the qualifications requisite for the most numerous branch of the State legislature ; the fourth section empowering and authorizing the legislature in each State to prescribe the places, times, and manner of hold- ing elections for senators and representatives— such regulations being subject to alterations made by the Congress. By force of these provisions, the House is compelled, when adjudicating in any matter affecting the elections, returns, or qualifications of any of its mem- bers, to make the law of the respective States from which such members may be returned its rule of action. As suggested above, the contestant confined his objection before the commit- tee to two specifications contained in his notice, viz : the misconduct of the election board at the Danville precinct, and the illegality of votes received at that precinct. The committee, believing that a knowledge of the Pennsylvana election laws is absolutely necessary to enable the House to form a correct judgment on the merit of these objections so made by contestant, have extracted the following clear and intelligible analysis of these laws, as prepared by Judge King in the contested election case of Kneass, reported in Parsons's Equity Select Cases. JUDGE KING'S OPINION. But another class of applicants to vote may present themselves, viz : persons who are not to be found on the official or alphabetical list of the white freemen and qualified electors in the possession of the inspectors. What is required of the inspectors under such circum- stances ? The answer to this inquiry is found in the 66th section of the act of assembly regulating elections. This section declares that " in all cases where the name of the person claiming to vote is not found on the list furnished by the commissioners, or his right to vote, whether found thereon or not, is objeeted to by any qualified citizen, it shall be the duty of the inspectors to examine such person, on oath, as to his qualifications ; and if he claims to have resided within the State for one year or more, his oath shall be sufficient proof thereof; but he shall make proof by at least one competent witness, who shall be a qualified elector, that he has resided in the district for more than ten days next immediately preceding said election, and shall also himself swear that his bona fide residence, in pursuance of his lawful calling, is within the district, and that he did not move into said district for the purpose of voting therein." The language of this law is so clear, and the policy of it so obvious, that it admits of no construction qualifying its letter as respects persons not found in the official list. It is from votes offered by this class of persons that the great danger of election frauds arises. If election officers should receive votes from such persons without the inquiry as to residence required by the act, the consequence may be easily divined. Whoever could procure the greatest number of reckless men, ready to offer votes in districts where they were not entitled to vote, would be certain of triumph ; for such men could operate not merely at one poll, but in all others where vote§ should be received with the same facility. It is true that this might be to some extent arrested by citizens challenging such voters. But that would afford too uncertain a security against an act of so mischievous and dangerous a character. The legislature has, therefore, most wisely provided an efficient remedy in' the case, and that consists in making it the duty of the inspectors to examine every person offer- ing to vote whose name is not found on the alphabetical list, whether he is challenged or not, as to his qualifications to vote, and to demand other testimony than his own of his actual residence in the district ten days before the election. A rigid and faithful execution of this part of the election law is absolutely indispensable to a fair election. Neglect or evasion of this duty is one of the grossest irregularities, if nothing worse, that election officers could commit. The manner of receiving and recording votes is also prescribed, and the procedure in this respect, demanded by the law, is most important to the prevention of fraud. Whenever an inspector receives the ticket of an elector he is required to call out the name of such elector, which shall be entered by the clerks on separate lists; and the name is to be repeated by each of them, and the inspectors are to insert the letter V in the margin of the alphabetical CONTESTED ELECTION CASES IN CONGRESS. 157 list, opposite the name of such elector. This provision is obviously intended to prevent im- posters voting' in the name of true electors, who have already voted ; which might be permitted through inadvertency if the inspector did not mark the vote according to law. If evidence of the naturalization of a voter has been produced, the inspector is also required to note the facts in the margin of the list ; and where proof of residence has been made he is also required to note the name of the person making such proof. The name of the person admitted to vote not on the list is to be inserted by the inspectors, and a note made opposite thereto by writing the word 'tax,' if he shall be admitted to vote by reason of having paid a tax, and 'age,' if he shall be admitted to vote on account of age; and in either case the reason of such vote shall be called out to the clerks, who shall make the like notes on the list of voters kept by them. All these provisions are of great practical value. But that which requires the inspectors to insert the name of a voter not on the list, whose vote has been received in consequence of having given proof of residence in the district, and also the name of the person proving such residence, is the- most important. The obligation of the inspectors to perform this duty is a perpetual admonition to them of the necessity of requiring such proof before receiving a vote not on the list, and serves to prevent the reception of such votes otherwise than accord- ing to law, whether from fraud, indolence, or carelessness. As the witness proving residence is required to be a qualified elector, it serves to furnish the means of inquiring into the true history of such a vote, in the event of a contest of the election. And the fact that a party proving such residence not only is required to swear to the fact, but be placed on record of the election as having, made such oath, must make men cautious how they swear to what they do not certainly know. This direction is among the vital provisions of the law, which no inspector, disposed faithfully to execute his duties, ought to omit, and the absence of which must tend to make the conduct of the election suspicious, if not absolutely illegal." Adopting and making this analytical construction of the Pennsylvania elec- tion law our rule of action, let us proceed to the inquiry : 1st, whether the election board was guilty of such impropriety of conduct as charged ; 2d, whether such a number of illegal votes were received as to change the result of the election. The evidence furnished the committee proves that the judge, Mr. Kitchen, elected by the people to officiate in the particular capacity of judge, did, for a great portion of the time while the election was going on, neglect his peculiar business, and was engaged in discharging the duty of inspec- tor. Not only the oath but the duties of these officers are entirely different. The two inspectors are required to stand at the window to receive votes, and whenever they may disagree respecting the qualifications of a voter, the judge is to decide between them. His duty is strictly that of an umpire. His oath carries no further obligation with it. Usurping the duties of an inspector, he was, pro Jiac vice, an unsworn officer. If this irregularity of conduct of the judge could be considered as resulting from ignorance or casual carelessness, it might not demand the serious attention of the House; but this was not the case. The duties of both Mettler and McAllister, which were to receive the tickets, were assumed by the judge, and they assigned exclusively to other duties. The testimony of the judge himself forbids this extenuation; for when asked, "Was, or was not, the election fairly and honorably conducted?" he answered, "After the tickets came in it was all fairly and honestly conducted, as far as I know." There is here no unqualified affirmance that the election was fairly and hon- estly conducted ; but an apparent evasion, if not a miserable quibbling. The committee is not disposed to attach much importance to any out-door declarations made in familiar, jocose moments ; but the declarations made by the witness Mettler, when acting as inspector at the ensuing special election, are not of this description. At this time we. find this inspector rejecting votes as illegal which had been received at the previous election, and when some disappointed applicant observed that he voted in the fall, Mettler replies, " Yes, but I am here now myself, and you must produce your papers or you do not vote." This was neither an idle, foolish, nor jocose remark, but was made in sober response to an illegal application to vote, and should go far towards satis- fying us that the exchange of official positions made by the judge and myself at the fall election was intended to cloak a fraud on the ballot-box. The House 158 CONTESTED ELECTION CASES IN CONGRESS. should bear in mind that these officers act under the obligation of oaths entirely- different in tenor and character, and any attempt to exchange their relative duties, with a view of shuffling off from one to the other their legal responsi- bilities, must be a violation of the law requiring them to be sworn, and a strong indication of a fraudulent purpose. Each inspector is required to select one clerk, whose duties, as prescribed by law, are to keep the list of voters as voting, and to record the reasons of persons voting on age, or such as are not found on the alphabetical list, and as admitted by the inspectors, and who are bound by the obligations of an oath. E. W. Concklin and B. Brown were selected to act in this capacity. Do we find them more regardful of duty — more faithfully observant of the requirements of the law ] The evidence is strong that one of them, Concklin, while he delegated to another individual, an unsworn officer, a right to discharge his duties, assumed for a portion of the time the office of inspector. It is proven that Concklin was engaged in taking and counting out votes from the boxes — a duty which is imposed by the law exclusively upon the judge and inspectors. When thus engaged, the only guarantee we have of his honesty and faithfulness is to be found in his ex- emption from partisan feelings ; the testimony of himself, as well as of that of others, shows him to have been a bitter, violent partisan in this controversy, and unworthy of any such confidence. But independent of these gross impro- prieties on the part of the regularly appointed officers of the election board, there were others, not indeed so flagrant, but which demand the reprobation of the House. The committee refer to the employing of additional clerks, whose appointment was not authorized by law, and who were not sworn to discharge their assumed duties justly and faithfully. The assessor of the district, whose duty is fixed by the statute " to be present at the holding of the election during the whole time it is kept open, for the purpose of giving information to the inspectors and judge, when called upon, in relation to the right of any person assessed by him to vote at such election, or such other matters in relation to the assessment of voters as the inspectors, or judge, or either of them, shall, from time to time, require," lays aside his register, and is appointed by the election . board " to distribute tickets," and acted in that capacity, as he swears, for a period of " four or five hours." In the place, then, of having an election board, as directed to be formed and constituted by the statute of Pennsylvania, of one judge, two inspectors, and two clerks, there were acting at the Danville' poll, in the, capacity of an election board, four persons as judges or inspectors, and four clerks, and at times other persons intermeddling with and discharging duties which only pertained to sworn officers appointed by the law of the State ; an instance of delegated judicial authority repugnant to law and reason. On ordinary occasions, when there was no fraud or unlawful misconduct preferred, this impropriety might be overlooked ; but in this case, when such a charge has been directly made and the evidence of its truth is overwhelming, to overlook it would be to throw wide open the door to any and every abuse of the elective franchise. The committee are sustained in the opinion passed on the conduct of these different officers by the decision of Judge King, in the case of Boileau, 503 Parsons's Select Cases. This was a petition presented under the act of the Pennsylvania Assembly of 1839, to set aside the election of Boileau as alderman in the third ward of the Kensington district ; the grounds of the petition were, that two individuals were employed as clerks in addition to the regular number, and were not sworn. One of these supernumeraries was called to act as substitute in the place of one of the regular clerks, who had become incapacitated by intoxication to discharge his official duties, and his assistance was therefore indispensable. The judge refused the prayer of the petitioner, on the ground that there was no fraudulent impropriety in the mem- bers of the board complained of; no pretence set up or alleged that either of the assistants contributed to an improper return ; but the judge at the same time CONTESTED ELECTION CASES IN CONGRESS. 159 says, " Under different circumstances, in a case in which it is shown that in making preparatory arrangements for holding an election, a reckless disregard of, or a criminal carelessness as to the directions of the law, has been committed, such an election would be pronounced undue and illegal, and under appropriate circumstances the omission to swear the officers would be sufficient cause for pronouncing the election void." The circumstances must be such as to indi- cate the practicing of any fraud or contrivance to affect the result of the poll ; and in the conclusion of the opinion, the learned judge does not hesitate to say, " While he would refuse to exercise his ingenuity to find out a cause for such an adjudication, yet the court would not hesitate to set aside an election where they were convinced in conducting it the laws were infracted." The commit- tee think and believe that in this case the evidence is ample of " such a disregard of, or criminal carelessness as to the direction of the law," as to bring it under the ban of the judge's condemnation. In ordinary cases occurring under the legislation of the different States, it might be preferable, instead of setting an election aside for official misconduct, to rely upon the punishment of offenders as a preventive of such offences ; but as Congress is not possessed of power to punish State officers, the only remedy left in its hands to protect the electoral rights of the citizens is to set aside the election held under such circumstances as null and void. As might be expected from such gross and flagrant improprieties of conduct of the election board, the committee find that, out of the number of seven hundred and thirty-one votes polled at this district, one out of every five was illegal, or polled contrary to the laws of Pennsylvania. [The report here quotes from the election laws of Pennsylvania.] • # • * '• * * These different provisions exclude from the list of legal votes foreigners not naturalized, non-residents, persons no.t regularly assessed or returned. In all these cases, excepting when the votes are given on age, the electors are required to hare paid a county or State tax within two years. In order to facilitate and expedite the election, the assessor is required to be present with his list of assessment, ready for examination, when the votes are offered. The contestant proved, by the production of exemplified copies of records, that forty-one foreigners voted at Danville that day who had filed their declaration within two years previous to the election, or had taken out their paperB of naturaliza- tion subsequent to that event ; twenty-three of these were assessed, but the act of assessment could not confer the right of suffrage. When we reflect that one or two witnesses testify that not half a dozen naturalization papers were pro- duced on that day, we must impute the reception of these votes to the flagrant irregularity complained of in the conduct of the board. The contestant made an effort to have these voters examined before the commissioners ; but as they almost unanimously refused to obey the subpoena, he was foiled in his attempt. The names of these voters will be found in the papers marked A and B, here- unto attached. The committee, on a careful examination of the poll-list with the assessment, find a discrepancy of ninety- four persons, whose names not being found on the assessor's list, and no reason appearing on the record for the votes, their votes should be pronounced illegal. In making the calculation, the com- mittee, desirous of extending every indulgence to the election officers, have erased from their calculation all such persons in the enunciation of whose names by the inspectors the clerks may have been deceived. The names of those non-assessed voters will be found in the papers marked B and 0. The com- mittee will remark, in the language of the learned judge from whom we have so frequently quoted, " It is from votes offered by this class of persons the great danger of election frauds arises. If election officers should receive votes from such persons without the inquiry as to residence required by the act, the conse- 16.0 CONTESTED ELECTION CASES IN CONGRESS. quence may be easily divined. Whoever could procure the greatest number of reckless men, 'ready to offer votes in districts where they were not entitled to vote, would be certain of triumph ; for such men could operate, not merely at one poll, but in all others where such votes should be received, with the same facility. It is true that this might be, to some extent, arrested by citizens chal- lenging such voters ; but that would afford too uncertain a security against an act of so mischievous and dangerous a character. Tha legislature has, there- fore, most wisely provided an efficient remedy in the case ; and that consists in making it the duty of the inspectors to examine every person offering to vote, whose name is not found on the alphabetical list, whether he is challenged or not, as to his qualifications to vote, and to demand other testimony than his own of his actual residence in the district ten days before the election. A rigid and faithful execution of this part of the election law is absolutely indispensable to a fair election. Neglect or evasion of this duty is one of the grossest irregu- larities, if nothing worse, that election officers could commit." There is another class of electors recognized by the laws of Pennsylvania : Persons claiming to vote by reason of being between the ages of twenty-one and twenty- two years, although non-assessed. A person so circumstanced is required to depose, on oath or affirmation, that he has resided in the State at least one year before his application, and to make such proof of residence in the district as required in the act, and that he does verily believe, from the accounts given him, that he is of the age aforesaid, and give such other evidence as is required by this act ; whereupon the name of the person so admitted to vote shall be inserted in the alphabetical list by the inspectors, and a note made opposite thereto, by writing the word " tax," if he shall be admitted to vote by reason of having paid a tax, or the word ''age," if he shall be admitted to vote on account of his age; and, in either case, the reason of such vote shall be called out to the clerks, who shall make the like notes in the list of the voters kept by them. Were these necessary requisites demanded by the inspectors ] The proof is to the contrary. The poll-list shows that thirty-nine electors voted on age ; there should have been thirty -nine oaths administered, and a record made of the same. This was not done ; and we have the evidence of Judge Kitchen that not ten oaths were administered on that day to all classes of voters. The non-observance of those laws, on the part of the election officers, affords a ready solution for the existence of an anomalous fact regarding the population of Dan- ville. The greatest number of votes polled on that day was seven hundred and thirty-one. Deduct from this number one hundred and twenty-six, com- prising foreigners, non-assessed and transient votes, and six hundred and five will remain on the poll-list. Of this number thirty-nine appear to have been between the ages of twenty-one and twenty-two years, or one out of every twelve. This is a most astonishing disproportion; an anomaly which our common observation and reason forbid us to believe to have really existed. If the election board had performed their duties faithfully and properly, such a case would never have appeared on the record. In addition to the preceding lists of illegal voters, we annex a list, marked D, of aliens and nen-residents, consisting of nine, who, though assessed, are expressly proven to have been illegal voters. There are many other facts, developed by the testimony before the commissioner, which are calculated to confirm and establish the truth of the two specifications contained in the con- testant's notice. But the committee, believing that what has been stated must tfe sufficient to satisfy every unprejudiced mind of the truth of the allegations made, consider it would be a waste of the time of the House to protract the report. A majority of the committee, not being satisfied in their minds how many of these illegal votes the sitting member received, and more particularly as the sitting member gave evidence of the reception, at other precincts in the district, of thirteen illegal votes in favor of the contestant, have determined to report a resolution merely to vacate the seat. This course is recommended by the consideration, CONTESTED ELECTION CASES IN CONGRESS. 161 that while it serves as an admonition to the electors of this district, that this house will so far respect the purity of its own organization as to refuse a seat to any representative returned by foul and fraudulent means, it will not ostracize honest electors. It will afford the honest portion of the community a fair opportunity of obtaining a just and legal representation. Resolved, That the election at the Danville precinct, county of Montour, eleventh con- gressional district, in the State of Pennsylvania, was illegally and irregularly conducted, and the seat of the member from that district is vacant ; and that the Speaker inform the governor of that State of the decision of this house, that a new election may he ordered. The minority report from the committee agreed, first, that the contestant's specifications were not sufficient. The first section of the act of Congress of 19th Febuary, 1851, requires that whenever any person shall intend to contest the election of any member of the House of Representatives of the United States, he shall, within thirty days after said election, give notice' in writing to the member whose seat he intends to contest, and in such notice shall specify particularly the grounds on which he relies in said contest. Now what do the words "specify particularly," in this connexion, mean? In our opinion they mean a clear, precise, definite, and full statement of the facts on which an election is proposed to be contested. The charges must be positive, tangible, direct, and particular. If a party complain of illegal voting, therefore, inasmuch as illegal voting is susceptible of particular specification, he must state where it was done, when it was done, the number of illegal votes, and by whom given, and the disqualification. Clearly nothing less would be "a particular specification," and the absence of any of these requisites must render such specification vague, indefinite, and therefore insufficient. The notice of the contestant in this case does not state the number or the names of any who voted illegally, and is, therefore, in our judgment, insufficient. It should state thepum- ber, because any number less than the returned member's majority would not, of course, defeat his election; and an investigation of any less number would, there- fore, be unnecessary. A general allegation of illegal votes may mean five, or ten, or twenty, or five hundred; it is uncertain, and not particular. Nor would a subsequent averment that the illegal votes received, and the illegalities complained of, had changed the result,be sufficient. This point was expressly ruled in case of Lelar, sheriff of Philadelphia, in 1846. The courts say they will require of the party complaining of illegal votes to state the number, for instance, thus: Twenty voted under age ; fifteen voted who were unnaturalized foreigners ; ten who were non-residents, &c. This particularity the courts of Pennsylvania say they will require, because otherwise they would be converted into a mere elec- tion board, for the purpose of counting disputed ballots. It is true, that in this case they did not require the names, but Oongress, in the case of Joseph B. Var- num, of Massachusetts, (see Contested Elections, -page 112,) expressly ruled that the allegation that persons vote who were not qualified to vote is not sufficiently certain, and that the names of the persons objected to for want of sufficient qualification must be set forth prior to the taking of the testimony. Again, in the case of Easton vs. Scott, from Missouri, (see Contested Elections, page 272,) it was decided that the party complaining of illegal votes must state the names and the particular disqualifications. This was also required in the case of Littell against Robbins, at the last Congress. It has always been required in the English House of Commons. Such, we believe, is the usual and correct practice in all cases of contested elections; and surely if Congress, in the absence of any law prescribing the mode of taking testimony in such cases, has required parties to be thus particular, how can we be less so when Congress by positive law declares they shall "specify particularly"? It is argued, on the other hand, that if Congress had intended the party complaining should be thus particular, they would have said so ; especially inas- H. Mia rw «■» 162 CONTESTED ELECTION CASES IN CONGEESS. much as in a subsequent section they require ten clays' notice of the names o the witnesses who are to be examined, together with their place of residence (8ee section 6th.) "We differ from this opinion, however, because, in our judg ment,the words "specify particularly," when applied to charges, mean all tha we have contended. Such is their established legal signification ; State prac tice and national precedent have so defined them. It would be a species of lega tautology, therefore, for Congress to have defined a particular specification, ai embracing time, place, number, names, and disqualifications, when the words " spe cify particularly " clearly mean all these ; constituting as they do the substancf matter, the veiy essence of a specification. The service of notice,required in the sixth section, of the names of the wit- nesses to be examined, and their place of residence, is another and entirely differ- ent matter. This formality would not have been required without positive enact- ment, and the object manifestly was, to notify the parties more particularly whi they were to meet, while it was the design of the first section to inform them what they were to meet. The first section puts the parties, on full and fail inquiry, into the truth of the charges preferred; the sixth section puts them on their inquiry into th echaracter, feelings, and means of knowledge of the witnesses who are to be examined. In addition to the exceptions taken by the sitting member to the specifi- cations complaining of illegal voting, it was further objected that those charging illegalities were insufficient, inasmuch as they do not state by what persons committed, or in what respect the election was affected thereby. Upon full and deliberate inquiry, we are of opinion that the objections made by the sitting member are well founded. Certainly if illegalities are complained of, the party complaining is bound to state who have violated the law, as well as in what that illegality consists. No man Bhould be exposed to the expense and annoyance of a harassing investi- gation, without full opportunity to ascertain if the charges made be correct. How can he be put fully and fairly on his inquiry, unless he is informed against whom the complaint is made ? The right to notice of charge, or demand, lies at the foundation at the administration of all human justice. The object of the law of 1851, requiring notice and particular specification, was manifested to give legal precision and form to proceedings of this character ; facilitating, on the one hand, investigation of substantial and meritorious averments, but avoiding, on the other, those loose and scrambling contests which have heretofore prevailed. We are of opinion, therefore, that it is the duty of a party complaining of an election to set forth such a state of facts, plainly and particularly, as would, if proved, render it the duty of Congress either to vacate the election, or declare that another person, and not the party returned, was duly elected to the office in dispute. And this, in our judgment, the party contestant in this case has failed to do. 2d. That the proof of illegal voting was insufficient. 3d. That the conduct of the officers conducting the election was not sufficiently irregular to justify the House in vacating the seat. It is contended that the conduct of William Kitchen, the judge of the Danville election, was illegal, on the ground that during a portion of the day he was discharging the duties of an inspector, to wit : standing at the window receiving tickets from the voters, and handing them to the inspectors for distribution. It is gravely argued that this is a gross departure from duty, because the oath taken by the judge carries with it no further obligations than that of an umpire, to act only in case of disagree- ment of the inspectors ; that the oaths taken by the judge and inspectors being entirely different in tenor and character, the judge, while engaged in the recep- tion and distribution of tickets, is also usurping the duties of an inspector, and fro hac vice, is an unsworn officer. CONTESTED ELECTION CASES IN CONGKESS. 163 To show how far the majority are sustained in their view of this part of the case, we submit the following true copies of the oaths taken by the judges and inspectors, respectively : Oath of the, judge. — "I do swear that I will, a8 judge, duly attend to the ensuing election during the continuance thereof, and faithfully assist the inspectors in carrying on the same; that I will not give ray consent that any vote or ticket shall be received from any person other than such as I firmly believe to be, according to the provisions of the constitution and laws of this commonwealth, entitled to vote at such election, without requiring' such evidence of the right to vote as is directed by law ; and that I will use my best endeavors to prevent any fraud, deceit, or abuse in carrying on the same, by citizens qualified to vote, or others ; and that I will make a true and perfect return of said election, and will in all things truly, impartially, and faithfully perform my duty respecting the same, to the best of my judgment ana abilities ; that I am not, directly or indirectly, interested in any bet or wager on the re- sult of this election." Oath of the inspector. — "I do swear that I will duly attend to the ensuing election, during the continuance thereof, as an inspector ; and that I will not receive any ticket or vote from any person other than such as I shall firmly believe to be, according to the provisions of the constitution and laws of this commonwealth, entitled to vote at such election, without requir- ing such evidence of the right to vote as is directed by law ; nor will I vexatiously delay or refuse to receive any vote from any person whom I shall believe to be entitled to vote as afore- said ; but that I will in all things truly, impartially, and faithfully perform my duty therein, to the best of my judgment and abilities ; and that I am not, directly or indirectly, interested in any bet or wager on the result of the election." These oaths are prescribed and made part of the election laws of Pennsyl- vania. What is the judge sworn to do? Why, to assist the inspectors in con ducting the election. Assist in what? Clearly, in the discharge of any of the duties impotsed on the inspectors, whenever and wherever his assistance may be required ; and in addition thereto, he is invested, under the law, with the higher and more extraordinary power of determining upon the qualifications of voters themselves. The minority reported a resolution that Mr. Fuller was entitled to the seat held by him. Mr. Davis, of Massachusetts, agreed as follows in support of the minority report : The majority of the committee dwell much upon certain alleged informalities in the mode of conducting the election. They claim that the judge of the election illegally aided in re- ceiving the votes ; that the sworn clerks illegally received the aid of unsworn assistants ; that foreigners voted without due inquiry as to their right to vote ; that the proper record of the reasons why certain persons were permitted to vote was not duly made, &c, &c. One general view, it seems to me, disposes of these objections. They do not go far enough, or to the root of the matter. If the mere informalities and neglects of returning officers were allowed to vitiate an election in the face of regular returns, half the seats in this house would be vacated on scrutiny. If any one thing is more clearly settled than another, as the general result of these election cases, it is, that neither in the courts of Pennsylvania, or of any of the other States, nor in Congress, is a strict observance of directory statutes by officers of elections held indispensable to the validity of such elections^ I might cite numerous illus- trations of this rule, which are undoubtedly familiar to the gentlemen of this house. It was decided in a case from Virginia, where the clerks hadnotbeen sworn until tbewhole election was over, though the law especially prescribed the oath to be taken in advance, that such election was. good. In another case, "where .the. law required the clerks to record the names of voters in a particular manner, so as to enable the polls to be accurately purged, and the true legal votes" ascertained, the clerks omitting' to perform the duty as the law directed, the House-weuld not for that cause set the Election aside. The" House in that case had to ascertain. the.genuine voters as well as they could, by other means.- -In various cases where voters have been returned after the time prescribed, those votes were received and counted by this house*. In a case from Indiana, it was decided the election should stand, though the sheriff had neglected to hold any election at two places, at the legal time and place of voting. The House decided it should not be in the power of those conducting elections to defeat them by their own neglect of duty. On page twelve of the report made by the minority of the committee, is cited Skerret's case, Parsons's Select .Equity Cases, vol. ii, page 515, where complaint was made that the inspectors had. neglected to call the names of the voters ; that they did not inscribe the letter V on the alphabetical list opposite the names of voters ; that they did not note the production of certificates of naturalization, and of such other things as are required by the 70th section of the act of assembly. The answer of the court to these complaints is this : "These may be disposed of at once by the fact that they are but directory 164 CONTESTED ELECTION CASES IN CONGRESS. to the officers of the election, and that, although the officers imlfully violating them may su ject themselves to censure and punishment, the omissions of such officers cannot nullify t election." On the second day of July, 1852, the House laid the whole subject upon tl table — ayes, 87 ; nays, 74. This left Mr. Fuller in his seat. Note. — The debate upon this ease will be found-in vol. 24, part a,. Cong. Globe, and vol. 25. For report : Mr. Ashe, page 1613, part 2, vol. 24 ; also, page 769, vol. 25 ; Mr. Wrigl page 755, vol. 25 ; Mr. Hamilton, page 761, vol. 25 ; Mr. McRoss, page 764, vol. 25 ; agains Mr. Fuller, page 751, vol. 25 ; Mr. Davis, page 758, vol. 25. THIRTY-THIRD CONGRESS, FIRST SESSION. Committee of Elections. Mr. Stanton, Kentucky. Mr. Steatton, New Jersey. Gamble, Pennsylvania. Dickinson, Massachusetts. Ewing, Kentucky. Bliss, Ohio. Seward, Georgia. Clark. Michigan. Madison, New York. Lane vs. Gallegos, of New Mexico Territory. Where very great irregularity in the returns was admitted, owing to the recent organizatio: of a Territory, and the ignorance of a part of the people respecting the forms of an election, i was held by the committee that a degree of allowance should be made. Indians organizing an election not in accordance with law were denied the right to vote. IN THE HOUSE OF REPRESENTATIVES, February 24, 1854. Mr. R. H. Stanton, from the Committee of Elections, made the following report : That the said contestant urges, as the ground of his right to the seat, that " ii conducting the election illegal practices were allowed in some of the counties and gross frauds committed, by which means a majority of votes was obtained' for his opponent ; and also that " after the returns had been made to the offict of the secretary of said Territory according to law, the legal votes were mis counted by admitting votes for his opponent which ought to have been rejected and by rejecting votes for him which ought to have been received, thereby giv ing a majority to his opponent which ought to have been assigned to him.' These are substantially the grounds upon which the contestant rests his claim He maintains that when the returns are properly purged of all illegal votes the result will be as follows : County of Santa FtS, Gallegos 380 Lane 25S San Miguel. -do 476 do 64 Rio Ariba...do 496 do 126 Taos do 634 do 88£ Bernalillo do 751 do 95c Valencia do 422 do 931 Socorro '.do 270 do 98t Santa Ana ... do 278 do 14£ Dona Ana. . . do do 286 3, 7lV 4, 23J 3,71' Mninritv for Lane 51C CONTESTED ELECTION CASES IN CONGRESS. 165 In the county of Taos an offer was made to vote some 60 Indian votes, and refused by the judges, which the- contestant claims were legal and,.should be added to the foregoing enumeration. He also maintains that 113 Mexican citizens cast their votes for Seiior G-allegos in Rio Ariba county, and 29 in Santa Fe" county, which, deducted from the aggregate above, leaves the majority of the contestant 726. The committee have with very great care examined all the poll-books, dupli- cate copies of which were furnished by the secretary of the Territory, and such testimony of witnesses as was furnished by the parties, but have not been able to concur with the contestant in the correctness of the result to which he arrives. That there was very great irregularity in the returns is fully admitted ; but not more so than might be reasonably expected under all the circumstances. The government of the Territory of New Mexico has been but recently organized; the people are not accustomed to the precision and accuracy of our election forms ; they do not understand our language or our system of laws. Allowance may, therefore, very properly be made for the want of strict compliance, in every minute particular, with the complex requirements of the territorial election forms, especially in the absence of all proof that the election was fraudulently conducted, or that the returns were not made in the most perfect good faith. It does not appear, from any part of the proof exhibited, that in any single instance fraud was committed or attempted, or that any single return from any one of the numerous precincts was corruptly made. With the exception of the 60 Indian votes, which the contestant alleges were improperly refused in the county of Taos, the claim of the contestant rests upon the exclusion of votes in several of the counties, for want of due form in the returns ; not, in the unani- mous opinion of the committee, affecting in the least the substantial requirements of the law. The Indian voters claimed by the contestant were very properly, in the opinion of the committee, denied the right to vote. They are excluded by the laws of the Territory ; they retain their tribal characteristics, form a distinct community from the whites, make their own local and separate laws, are governed by their own chiefs, and do not differ essentially from other savage tribes. For the same reason 202 Indian votes, cast by the Pueblos at Laguna precinct, in the county of Valencia, and enumerated in the vote of the con- testant above, were rejected by the committee and deemed illegal. These Indians, at their own pueblo, without authority from the probate judge, as pro- vided by law in all other cases, organized the election, appointed their own chiefs to conduct it, and made the returns to the secretary. All the votes cast were for the contestant. The law of the Territory makes it the duty of the probate judge of the county, eight days before the election, to select the place of holding it, and appoint three judges to preside. In this instance the judge performed no such duty, and, no doubt, for the reason that the Indians were regarded by him as not being entitled, under the law, to the right of suffrage. The proof, in the opinion of the committee, does not sufficiently establish the fact that Mexican citizens were allowed to vote at any of the precincts ; and, should the whole number of votes of that character alleged by the contestant to have been cast be excluded, it would not change the result. From several of the precincts of San Miguel county, the judge of probate, whose duty it is to make returns to the secretary of the Territory, sent to that officer the abstract of the votes polled, as required by law, but omitted at that time to furnish the poll-books. Subsequently, and within the time limited by law, lists of voters in the said' precincts were furnished to the secretary, and certified by him to have been received from the "judge of probate of the county of San Miguel." The abstract was properly authenticated, and sufficiently showed the number of votes cast for each individual ; and the list of voters had opposite to each name the number as required by law, so that by reference to the tickets kept in the office of the probate judge, the person for whom each 166 CONTESTED ELECTION CASES IN CONGRESS. man voted could be readily ascertained. These returns, the contestant main- tains, should all be rejected, because, as he supposes, the returns were not made according to law, the probate judge having no authority to correct his error, after having returned the abstract, by supplying the list of voters. If the abstract and list of voters had been returned at the same time, and authenticated in the same manner as they were, there would have been no departure from the strict provisions of the law. But provision is made in the 29th section of the territorial law regulating elections for the failure of the secretary " to receive any return within fifteen days after the election," by requiring him " to send a special messenger to the county failing to make the returns with orders to bring them." The presumption is, that the secretary acted in obedience to this requirement of the law ; and as the additional returns were received within the time allowed for correcting the votes, the committee can see no valid objection to considering them in their calculation of the result. Neither in these precincts of San Miguel, nor in those of any other county from which the returns are alleged by the contestant to be informal and contrary to law, have the committee been able to perceive so substantial a defect as to justify their total exclusion. In the absence of all attempt at fraud on the part of the voters, it would he manifestly unjust to deprive them of the effect of their suffrages for a slight failure upon the part of the officers conducting the election fully to comply with all the forms of law when enough is clearly shown to de- termine the wishes of the people. Excluding only the vote of Laguna precinct, in the county of Valencia, which was entirely given by the Pueblo Indians, and the parties are rightfully entitled to the following votes : County of Santa Fe\ Gallegos 382 Dona Ana ... do Bernalillo ... do 751 San Miguel, -do .' 1,397 Taos do 634 Socorro do 270 Bio Ariba ... do 826 Santa. Ana . . do 531 Valencia do 452 251 do , 288 do 952 do 262 do 886 do 586 do 128 do ... , 401 do 780 5, 243 4, 535 4,535 Majority for Gallegos 708 The committee, therefore, after a full examination of all the facts, are unani- mously of the opinion that the Hon. Jose' Manuel Gallegos is rightfully entitled to-his seat as delegate from the Territory of New Mexico, and report the follow- ing resolution : Resolved, That the Hon. Jos6 Manuel Gallegos is entitled to the seat as delegate from the Territory of New Mexico for the 33d Congress. The House adopted the above resolution without debate, and without a call of the yeas and nays, February 24, 1854. THIRTY-FOURTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Israel Waskburne. Mr. Hickman, Pennsylvania. Stephens, Georgia. Colfax, Indiana. Watson, Ohio. Smith, Alabama. Spinner, New York. Bingham, Ohio. Oliver, Missouri. CONTESTED ELECTION CASES IN CONGRESS. 167 ' In the second session, Mr. Savage, of Tennessee, in place of Mr. Oliver. In the third session, Mr. Oliver in place of Mr. Savage. Turney vs. Marshall, of Illinois. Fouke vs. Trumbull, of Illinois. The State legislature cannot add to the qualifications prescribed to the representative to Congress by the Constitution of the United States. IN THE HOUSE OP EEPEESENTATIVES, June 24, 1856. Mr. Bingham, from the Committee of Elections, made the following report: The facts in these cases are as follows : In the ninth congressional district of the State of Illinois, at the election held on the 7th of November, 1854, the whole number of votes cast was 12,685 : of which Mr. Marshall received 8,497 ; the contestant, 2,912 ; and Mr. Barbour, 1,276. And in the eighth congressional district of said State, at the election held on the same day, the whole number of votes cast was 13,647 : of which Mr. Trumbull received 7,917 ; the memorialist, Mr. Fouke, 5,306 ; and Mr. Buskmaster, 424. Mr. Marshall was, on the 10th of March, 1851, elected a judge of the circuit court of the State of Illinois for the' twelfth judicial circuit, for the term of four years and three months, was duly commissioned and qualified as such judge, and afterwards resigned said office ; which resignation took effect the 10th of August, 1854. Mr. Trumbull was, on the 7th of June, 1852, elected a judge of the supreme court of the State, of Illinois for the term of nine years, and was, on the 29th day of June, 1852, duly commissioned and qualified as such judge ; and in the month of August, 1853, more than one year before said election, said Trumbull resigned said office of judge. The 10th section of the 5th article of the constitution of the State of Illinois, which was adopted on the 6th day of March, 1848, is in the words following : "The judges of the supreme and circuit courts shall not be eligible to any other office or public trust of profit in this State, or the United States, during the term for which they are elected, nor for one year thereafter. All votes for either of them, for any elective office (except that of judge of the supreme or- circuit court) given by the general assembly or the people,, shall be void." Each of the memorialists claims the right to a seat in the 34th Congress, solely upon the ground that the votes cast for said Marshall and Trumbull, respectively, "were null and void ;" not because of any disqualification in the electors who thus voted, but because the said Marshall had been elected a circuit judge, and the said Trumbull a supreme judge, within said State, for a term of years, and which term had not expired at the time of said election. This presents the question whether a State may superadd to the qualifica- tions prescribed to the representative in Congress by the Constitution of the United States? Mr. Chancellor Kent says that " the objections to the existence of any such power appear to me too palpable and weighty to admit of any discussion." — Kent's Commentaries, vol. i, page 228, note. 168 CONTESTED ELECTION CASES IN CONGEESS. And Mr. Justice Story, upon the same question, says that "the States can exercise no powers whatsoever, which exclusively spring put of the existence of the national government, which the Constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative as they have for a President. Each is an officer of the Union, deriving his powers and qualifications from the Constitution, and neither created by, dependent upon, nor controllable by the States. It is no original prerogative of State power to appoint a representative, or senator, or President for the Union." — Story's Commentaries, voL ii, page 101. The second section of the first article of the Constitution of the United States provides that the people op the several States shall choose their representatives in Congress every second year, and prescribes the qualifications both of the electors and the representatives. The qualification of electors is as follows : " The electors in each State" (who shall choose representatives in Congress) " shall have the qualifications requisite for electors of the most numerous branch of the State legislature." The qualifications of a representative, under the Constitution, are, that he shall have attained the age of twenty-five years, shall have been seven years a citizen of the United States, and, when elected, an inhabitant of the State in which he shall be chosen. It is a fair presumption that, when the Constitution prescribes these qualifications as necessary to a representative in Congress, it was meant to exclude all others. And to your committee it is equally clear that a State of the Union has not the power to superadd qualifications to those pre- scribed by the Constitution for representatives, to take away from •' the people of the several States" the right given them by the Constitution to choose, "every second year," as their representative in Congress, any person who has the required age, citizenship, and residence. To admit such a power in any State is to admit the power of the States, by a legislative enactment, or a constitu- tional provision, to prevent altogether the choice of a representative by the peo- ple. The assertion of such a power by a State is inconsistent with the supre- macy of the Constitution of the United States, and makes void the provision that that Constitution "shall be the supreme law of the land," anything in the constitution or laws of any State to the contrary notwithstanding. Your committee submit that the position assumed by those who claim for the States this power, that its exercise in nowise conflicts with the Constitution, or the right of the people under it to choose any person having the qualifications therein prescribed, has no foundation in fact. By the Constitution the people have a right to choose as representative any person having only the qualifications therein mentioned, without superadding thereto any additional qualifications whatever. A power to add new qualifica- tions is certainly equivalent to a power to vary or change them. An additional qualification imposed by State authority would necessarily disqualify any person who had only the qualifications prescribed by the federal Constitution. Your committee cannot assent to the averment of the memorialist, Mr. Fouke, that "the question presented is not one of qualification of a member of Con- gress, arising under the Constitution of the United States, but a question of election, arising under the constitution and laws of the State of Illinois." It is not intimated either by the memorialist, or any one else, that the per- sons who voted at said election in said several districts were not qualified elec- tors, and legally entitled to vote ; nor is it intimated that said election was not conducted in all respects as required by law. In short, the only point made by the memorialist is that Mr. Marshall, who received a large majority of all the votes cast in said ninth district, and Mr. Trumbull, who received a large majority of all the votes cast in the said eighth district, were each of them ineligible to a seat in Congress, not because either of them lacked any qualifica- CONTESTED ELECTION CASES IN CONGRESS. 169 tion prescribed by the Constitution of the United States, but because each of them was disqualified by operation of the provisions of the constitution of the State of Illinois. If the respective terms for which those two gentlemen had been elected judges of the said State had expired more than one year before the 7th of November, 1854, we would have had no intimation that the votes cast for each of them were in contemplation of law no votes;" their election would, under these circumstances, have been conceded, because they would have been acknowledged as not disqualified to hold the office under and by virtue of the constitution of the State of Illinois. If the State of Illinois may thus disqualify any class of persons possessing all the qualifications required by the federal Constitution for a representative in Congress for a period of ten years, and another class for a period of five years, what is there to restrain that State from imposing like disabilities upon all citizens of the United States residing within her territory, and thus take away from the people the right to choose repre- sentatives in Congress every second year, declaring in effect that only every fifth or tenth year shall the people choose their representatives? It is no answer to say that these disabilities are self-imposed by the majority of the people of the State. The majority of the people within the several States have not the power to impair the rights of the minority guaranteed by the Constitu- tion of the United States, and exercised under its authority. By the plain letter of the Constitution Congress may prescribe the time, place, and manner of holding elections for representatives ; and at such time and place, and in the manner thus prescribed, every second year, the people of each State may choose as representative in Congress any person having the qualifications enumerated in that Constitution. .The power attempted to be asserted by the State of Illinois in the cases before us is in direct contravention of the letter, as also of the spirit, true intent, and meaning of these provisions of the federal Constitution, and absolutely subversive of the rights of the people under that Constitution. Your committee, therefore, conclude that the said 10th sec- tion of the 5th article of the constitution of the State of Illinois is inoperative in the premises ; that the said Trumbull and Marshall were each eligible to the office of representative in Congress at the time of said election, it being con- ceded that on that day they possessed all the qualifications for that office required under the Constitution of the United States ; and that the votes given to each of them were not void, as alleged, because they were given by electors having the qualifications prescribed by the Constitution of the United States, and at the time and place and in the manner prescribed by law. The House sustained the report of the committee, 125 to 5. Note. — A brief debate took place in the House upon the report of the committee, but the decision of the House hinged entirely upon the point presented in Mr. Bingham's report. The speeches will be found in vol. 32, part 2. For report: Mr. Bingham, 830 j Mr. Jones, 830; Mr. Norton, 830; against: Mr. Allen, 830; Harris, 865. THIRTY-FOURTH CONGRESS, FIRST SESSION. Archer vs. Allen, of Illinois. Where the judges of an election had a recount of the votes, after the election, and discov- ered a mistake, the committee held that the supplementary return was entitled to be received. The presumption in such a case is that the ballot boxes had not been interfered with. The House vacated the seat, but did not give it to the contestant. In this case there was a preliminary report m-dered by the House, the com- mittee having extended the time for taking depositions without asking the authority of the House. The resolution agreed upon is as follows : 170 CONTESTED ELECTION CASES IN CONGRESS. Resolved, That the chairman be directed to inform the parties in the case of the seat from Illinois, contested between Mr. Allen and Mr. Archer, that they will be permitted to take further depositions, to be returned within forty days, notice of the time and place of taking depositions to be given by each party to the other, of not less than ten days, except where it may be otherwise agreed between the parties. The committee say : In adopting this resolution, the committee followed many precedents of pre- vious committees, and they believed that it was due to the parties and to the House that an opportunity should be given to take testimony to be used in the case, when 'both parties may be present, and the whole truth elicited and dis- closed ; and they came the more readily to this decision, because they under- stood it to be in accordance with the wishes of the sitting member, as the case appeared before the committee, and assented to by the contestant. The final report states the facts in the case as follows : The Committee of Elections, to whom was referred the memorial of William B. Archer, contesting the seat of James C. Allen, as representative from the seventh congressional district in Illinois, having examined and considered the same, together with the evidence presented therewith, submit the following report : It appears from the official canvass of the votes for representative to Congress from said district, at the election held on the seventh day of November, A. D. 1854, that the sitting member received 8,452 votes, and the cqntestant 8,451 votes. On the fifteenth day of December of the same year the contestant notified the sitting member that he should contest his right to a seat in this house, and that he claimed to have been himself duly elected thereto, on the following grounds : That the returns made by the returning officers, as officially announced, are incorrect, and that the poll-books of the several counties in this district show that I received a majority of the legal votes polled in the said district for the said office, and am entitled to the certificate of election therefrom. The sitting member, on the third day of January, 1855, replied to this notice, denying the claim of the contestant, and asserting his own right. And he now objects that the allegations in the notice were too general, uncertain, and indefi- nite to require any answer from him, or to lay the foundation for any proceed- ings on the part of the contestant. Waiving the consideration of the question, whether it is not too late, after the answer which has been referred to, to make this objection, your committee are clearly of opinion that the first specification is sufficiently certain and definite to authorize an investigation of the correct- ness of the returns made by the returning officers of any precinct in the district. The notice embraced all the precincts in general terms, and was as good a com- pliance with the law of 1851, and as serviceable to the sitting member, as if every precinct in the district had been specifically named. The law was sub- stantially complied with. Besides, it does not appear, and it has not been sug- gested, that injury or inconvenience has resulted to the sitting member from any want of certainty in the notice. In the view which, the committee have taken of the case, it becomes unnecessary to inquire into the sufficiency of the second specification in the notice. The contestant having given notice, as will appear hereafter, proceeded to take depositions in support of his claim, which, with other papers, he .presented to the House with his memorial at the commencement of the session. Among these papers was an official copy of a supplementary return (so called) made under oath by the judges and one of the clerks of the election of the Livingston precinct, in the county of Clark, to the clerk of the county court in and for said county, of which the following is a copy : CONTESTED ELECTION CASES IN CONGRESS. 171 State of Illinois, Clark county : We, the undersigned, judges and clerk of the general election in said county of Clark, and of Livingston precinct, east of Marshall, on the 7th day of November last past, 1854, do hereby certify, that, on a review and count of the ballots this day made with care and to our satisfaction, the ballots being on the said 7th day of November put into a box, locked and kept in the hands of one of the judges, to wit, H. H. Hutehinson, as required by law ; that in the return made to the clerk of county court, we gave a certificate that William B. Archer had one hundred votes, and that James C. Allen had forty-seven votes, the said Archer and Allen being the only candidates running to represent the seventh congressional district in said State of Illinois in the Congress of the United States ; that we find an error was made in said count and return, and that it clearly appears that at said election said Archer truly received one hundred and two votes, and said Allen got forty-six votes, (46,) which error we now correct under our oaths taken as judges and clerk, the other clerk, Mr Hollingshead, not being present this day, one hundred and two (102) to said Archer, and forty-six (46) to James C. Allen; all of which we hereby certify under our oaths taken and our hands and seals. March 2, 1855. HENRY H. HUTCHINSON, [seal.] DAVID WYRICK. [seal.; [seal.' J. J. BIRCH. [seal. : ElzaM. Hanks, Clerk, [seal.] These facts are distinctly stated by the judges and clerk, who made the above certificate, in their depositions take"n on the 9th day of March, 1855. H. H. Hutchinson says, that after the votes were counted on the day of election, " the ballot-box, with the ballots deposited therein, was locked up by me and kept in my possession until the second day of March, 1855," when a recount was made ; that upon the recount there were in the ballot-box " forty- six (46) votes for Mr. Allen, and one hundred and two (102) votes for Mr. Archer, which is the correct and true vote to which they are entitled in said J. J. Birch confirms the statements of Hutchinson, and says, "the ballots were put into the ballot-box, locked up and carefully kept;" and that on the re-examination, which, he avers, was " carefully made," " we found that Mr. Allen had forty-six, (46,) and no more, and Mr. Archer had one hundred and two, (102) votes, and no more ; that we made a statement in writing at the time, to wit, on the 2d day of March, instant, under our hands and seals, and re- turned the same to the clerk of the county court, correcting the error." David Wyrick states, as do all the witnesses who testify in reference to the election in this precinct, that the number of ballots and number of voters on the poll-list — viz., " 149 ballots and 149 voters " — correspond and agree. He also states that the ballot-box was locked up and carefully kept till the 2d of March, when the re-examination took place, and that at that time they made "the whole number of votes for Mr. Allen forty-six, (46,) and no more, and for Mr. Archer one hundred and two, (102,) and no more." Mr. Hanks, the clerk, "saw the ballots placed safely in the ballot-box and given to Mr. Hutchinson, one of the judges of the election, for safe-keeping.". He details the proceedings at the recount, and says that Mr. Hutchinson opened the ballot-box and proceeded to call over the ballots, and in so calling he came to two ballots which, on his first impression, he considered spurious ballots, because they were neither voted for Mr. Allen nor Mr. Archer ; they then laid said two votes aside, and proceeded to count the remaining ballots in the box. Then upon consultation they decided that said two votes should be granted to Mr. Archer." Your committee saw no reason to doubt that the ballots which were taken from the box and counted on the 2d of March were the same ballots, in every respect, which were actually cast and counted on the 7th of November, 1854. The testimony upon this point is as full, clear, and satisfactory as from the nature of the case could be expected or required. In no rule or principle of 172 CONTESTED ELECTION CASES IN CONGRESS. evidence, or for the weighing of evidence, of which the committee were aware, could they find authority to say that they were not satisfied heyond a reasonable doubt that the ballots had been safely and truly kept. There was no room for such a doubt as should condemn the ballots. To have assumed and acted upon the possibility of an alteration in them would have been an arbitrary and wanton course of procedure, unwarranted by the facts and legal presumptions in the case. It is to be noticed that the officers of election make no question whatever as to the identity and genuineness of the ballots ; a doubt, even, upon this point does not seem to have occurred to any one of them. The sitting member, in his argument read to the committee in March last, raised no issue upon the identity of the ballots, nor did he suggest that any change or alteration had been made in them. The suggestion of such change or alteration unfavor- able to the sitting member becomes wholly improbable, when it is remembered that the ballots were all the time in the keeping of his political friend, Mr. Hutchinson. Assuming, then, as your committee submit they were bound to assume, that the ballots counted on the 2d of March, 1855, were the same as were counted on the 7th of November, 1854, and that in the mean time the box had not been opened or tampered with, the inference is unavoidable that in the hurry and con- fusion of the count upon the evening of the election there were mistakes made by the judges or clerks which were discovered and corrected upon the re-examina- tion. It is certain that upon the recount 149 ballots were found in the box, that the names of 149 voters were found on the poll-book, and that the name of the sitting member was upon 46 only of these ballots. It is not suggested or pretended by any of the officers of election that there was any doubt what- ever in regard to this statement. On a careful examination it was plain and clear to all that the name of the sitting member was on "forty-six ballots and no more." The judges and the clerk (Hanks) all certify, and all testify, that in the num- ber of votes returned on the day of election for the sitting member they made a mistake, and they inform the House how they know it, and why they know it. How the error occurred will be examined hereafter. That there was an error, as every member of the board declares there was, in allowing to the sitting member one vote more than he actually received, your committee can have no doubt. It further appears from the return and depositions of the officers of election, that upon the re-examination it was discovered that the contestant received two votes more than were counted and returned for him in November. The votes were "carefully examined," and the decision and deliberate judgment of the board was, that the contestant received in truth and in fact 102 votes, which ought to have been counted and returned for him. The officers of the election informed the committee that there was an error in their doings on the 7th of November; that they had discovered, and, so far as they could, had corrected it. To this information they gave the sanction of their oaths. It was the duty of the committee to examine the evidence and give it the weight to which it was legally and justly entitled, and, doing so, there was, as they think will be ap* parent to the House, but one result to which they could arrive, namely, that the error was proved, and that it ought to be corrected. ( 'Thus stood the case as it was originally presented to your committee. The sitting member, however, objected that the depositions by which the foregoing facts were established were taken without the notice being given to him which was required by the act of Congress of 1851. The notice citing the sitting member to attend to the taking of depositions on the 9th day of March, 1855, was dated February 20, 1855, and was imme- diately forwarded to Washington, where the sitting member then was, for service. It was seasonably received by the gentleman to whom it was sent — a colleague of the sitting member in the 33d Congress ; but, through some acci- CONTESTED ELECTION CASES IN CONGKESS. 173 dent or inadvertence, as the committee are informed by a member of tbe late House of Representatives and of this, and who was cognizant of the facts, the service was not made until the 28th of February. Construing the act of 1851 by the equity and spirit, if the committee may so say, of the well-established rule of law, that, in the computation of time, the day upon which an act was done, or a notice given, is to be excluded or included, as may be necessary, to prevent an estoppel, or save a forfeiture, the notice may be regarded as sufficient within the terms of the law. But the act itself was directory and cumulative. Its object was to protect, and not to defeat, the rights of contesting parties and of the people. It was to be an aid, and not an obstruction. To reject testimony taken under such circumstances as this was, and for the reasons urged by the sitting member, and thus to deprive a contestant, though guiltless of laches, of his clear and indisputable rights, and to deprive the people of a congressional district of theirs, would be unreasonable and unjust, in violation of the spirit, if not of the letter, of the law of Congress, and an abdication by the House of its constitutional duties and functions. In addition to what has been said, it may be observed that the facts stated in the depositions objected to appear in the copy of record to which reference has been made, and which, if properly admissible, furnishes plenary evidence of the facts relied upon by the contestant. The sitting member stated to the committee that, in point of fact, he had no opportunity to be present, either in person or by counsel, at the taking of the depositions ; and further, that if he could have been present, and had an oppor- tunity to examine the witnesses, he would have made no objection to the suffi- ciency of the notice. In the same spirit by which your committee were con- trolled in their decision to receive the depositions introduced by the contestant, and solicitous only that the whole truth should be made known, and such deter- mination of the case had as would do exact and perfect justice to the parties, they did not hesitate to adopt a resolution, under which ample opportunity would be afforded the sitting member and the contestant to examine the wit- nesses whose depositions were before the committee, as well as others, and thus giving to the sitting member opportunity to cross-examine the witnesses whose testimony he objected to solely for the want of such opportunity. And the committee the more readily adopted the resolution, so just and equitable to the parties, from the fact that they understood that such action was in accordance with the wishes of both. The contestant had, in conversation with the com- mittee, expressed himself to that purpose ; and the sitting member, in his written argument, before referred to, made use of the following language : It is no answer to these objections to say that these judges and clerks, in their depositions taken on the 9th of March, testify that the examination which took place on the 2d was in all things properly conducted, and that the ballots had been carefully preserved, &c. ; for those depositions were taken without that notice to me which is required by the 9th section of the act. It is true that the contestant attempted to give me notice, but it reached me within the ten days required by law, and too late for me to attend in person or by agent. And while I do not conceive that the depositions contain in themselves anything that could war- rant the committee in setting aside the official returns, and annulling my commission under the great seal of the State, / respectfully but earnestly urge the committee, if they should re- gard it differently, not to do so upon testimony taken without such notice as would be required in a matter where a few dollars, or even cents, was in controversy. Upon the 14th day of April last, in pursuance of the aforesaid resolution of the committee, the contestant, having given due notice to the sitting member, proceeded to take the depositions of Hutchinson and others, who had testified before, and also of the clerk, Hollingshead, who was not present at the recount in March, 1855. These depositions state more in detail than the former what took place on the day of election, and at tbe re-examination in March, and ex- plain very satisfactorily how the error on the first count occurred. They also con- tain a particular statement of athird counting of the ballots (which had been care- 174 CONTESTED ELECTION CASES IN CONGRESS. fully preserved) on the 14th day of April last, and upon which they came to the same result as on the second, Among the depositions recently taken are those of all the judges and clerks for the Livingston precinct, of whom three, to wit, Messrs. Hutchinson, Wyrick, and Hanks, are political friends of the sitting memher, and two, Messrs. Birch and Hollingshead, are political friends of the contestant. The evidence in the case is here presented. The committee conclude : Tour committee have, upon this testimony, arrived without difficulty at these results : Firstly. That one more vote was returned for the sitting memher than he ac- tually received at the polls. Secondly. That the ballots were kept safely and without alteration until the 2d of March, 1855, when they were counted again by the officers of election. Thirdly. That upon this examination it appeared that two votes probably, and one certainly, were thrown for the contestant more than were counted and returned for him on the day of the election ; and hence, Fourthly. That the contestant was elected by a majority of one or two voted. So, whether the question is to be determined upon the evidence first in- troduced, and excluding that subsequently taken, or upon the latter alone, or upon all that has been presented, your committee are satisfied that the contestant was legally and truly elected. The committee reported the subjoined resolutions : Resolved, That James C. Allen was not elected, and is not entitled to a seat in this house. Resolved, That William B. Archer was elected, and is entitled to a seat in this house. The minority of the committee in their report object to the alteration in the original return from the Livingston precinct. First, as to the admissibility of the testimony produced, by which the alter- ation is sought to be made; and, secondly, the effect of the testimony even if received. And on the first head they would say, in the first place, no allusion to any such error in the count at the Livingston precinct is made in the original notice given by Mr. Archer, the contestant, to Mr. Allen, the sitting member, of his intention to contest the seat under the act of 1851. This will be seen by reference to exhibit A. The only specification in that notice is in these words : " That the returns made by the returning officers, as officially announced, are incorrect, and the poll-books of the several counties of this district show that I received a majority of the legal votes polled in the said district," &c. This notice is without any particular specification. It is almost, if not quite, as general as it could possibly be made. But by the law of Congress, passed February 19, 1851, under which these proceedings were instituted, and by which it seems to us the investigation should be governed, it is provided in section 1, "That from and after the passage of this act, whenever any person shall intend to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been deter- mined by tbe officer or board of canvassers authorized by law to determine the same, give notice in writing to the member whose seat he designs to contest of his intention to contest the same, and in such notice shall specify particularly the ground upon which he relies in the contest." The notice of the contestant was within the time required by law, but contained no reference whatever to this particular ground now insisted upon. It was almost as vague and indefinite as if it had simply notified the sitting member that the contestant intended to claim the seat upon the grounds that he was duly elected and the sitting member was not. If he had at that time intended to insist upon a recount of the ballots at the Lexington precinct, was he not bound, under the law, to make the particular CONTESTED ELECTION CASES IN CONGKESS. 175 specification 1 Thirty days were allowed him to prepare all his grounds. This Lex- ington precinct affair seems to have been an afterthought. It was not alluded to in the notice, and if we are to be governed by the law of Congress the inves- tigation shoixld be confined to the grounds particularly set forth in the original notice. The law of Congress we do not regard as merely directory or cumu- lative, but as peremptory and binding in its import and intention, as any other law regulating any other judicial proceeding. The House, in judging of the election returns of its members, sits as a court. Their proceedings are judicial in their character, and why is it not as competent for Congress by law to regu- late the proceedings in this court as in any other 1 And if such regulations are made, why are they not as binding 1 ? This is an important point; and the under- signed insist upon the propriety of its observance by the House, not so much in consideration of any bearing it may have on the merits of this case, as on ac- count of the consequences which will naturally follow the precedent which a dis- regard of it would establish. It would amount, in their opinion, to nothing short of a practical repeal of the statute in'this particular. Nor do we think the force of this point is at all weakened by any act of the sitting member in his answer to the general notice given him. In that answer he simply joins issue on the grounds presented, as they stood stated under the law, and on that issue he still stands. . Another reason why the testimony touching this recount should not be allowed, in the opinion of the undersigned, is, that it was taken without due or legal notice to the sitting member. This will be seen from exhibit D. The law of Congress required at least ten days' notice ; but the notice was served on the sitting member in the city of Washington on the 28th of February, 1855; and the time for taking the testimony designated the 9th day of March thereafter, and the place, the State of Illinois. The time was but nine days, and the dis- tance so great that he could neither be present in person nor by attorney ; the proceedings, therefore, were entirely ex parte. Besides this, there is still another reason. The testimony relates to a recount of the votes in the ballot-box, which was made on the 2d of March, 1855, nearly four months after the election), without any notice at all to the sitting member, without his having any knowl- edge whatever of such recount being intended ; and the recount itself was made without any authority of law whatever. For these reasons, the undersigned are of the opinion that all the evidence relating to this recount should be rejected, and the poll at the Livingston precinct left as it originally stood. But, secondly, as to the effect of the testimony, in case it be received: The undersigned are not of opinion that it authorizes the correction now sought to be made. In the first place, on this view the evidence is not such as to preclude all reasonable doubt that the ballot-box might have been improperly interfered with, and the ballots in some way altered or changed, from the 7th November, the day of election, to 2d of March, the day of the'recount. There was.no law of the State authorizing or requiring it to be kept safely with the ballots in it, or requiring the preservation of the ballots- in any way; and although the witnesses state that after the count on the evening of the election on the 7th of November, 1854, the ballots were all put back into the box, and the box locked, and put in charge of one of the judges of election, who swears that it was not opened from then until the 2d of March, to the best of his knowledge ; yet the testimony taken altogether is not sufficient to show that the box might not, in the interval, have been opened ; and on a very material point in it — that is, the possession, of the key — the testimony, so far from being "consistent" and con- clusive, as the majority deem it is, the undersigned consider it not only unsatis- factory, but essentially conflicting, if not directly contradictory. For Mr. Hutch- inson, the judge who took charge of the box, in answer to a question about the possession of the box and key from the 7th of November, 1854, until the recounting on the 2d of March, 1855, says : " They were both in my possession. The key was my own private property; and after the box was locked, the other 176 CONTESTED ELECTION CASES IN CONGEESS., judges had left the house where the election was held. The key that belonged to the ballot-box was lost." While Mr. Birch, another one of the judges, says : " We put the ballots into the ballot-box and locked it up. I' do not remember who took the box. I took the key and put it away, and never have seen it since; but think that H. H. Hutchinson took the ballot-box." From this it would seem clear that there were at least two keys that would unlock the box. Now, why may not the key taken by Mr. Birch, and which he has never seen since, have been used in perpetrating a fraud on the ballot-box without any privity or knowledge either on his part or that of Mr. Hutchinson ? Does not the evidence show clearly the possibility of such a result? Is it of such a nature as to preclude such a possibility? We think not. And, upon principle, believing it would be dangerous and utterly destructive to the sacredness and sanctity of the elective franchise, and those guards by which it is to be legally protected, to establish a precedent of allowing alterations in original returns to be made upon testimony of this kind and nature, we think the correction now sought to be made upon the evidence produced should not be allowed ; the testi- mony, if received, is not of such a character as to warrant such a conclusion. But again, and apart from these considerations, the undersigned are clearly of opinion that if all these irregularities be passed over, and the recount be allowed by the testimony adduced, the result is different from that claimed by the majority. If there were really and in truth three tickets rejected at the first count on election day upon the grounds that the names of both the con- testant and sitting member were erased from them, and consequently were not counted for either; and if the three tickets or ballots appended to the testimony, marked exhibit P, be in truth and in fact the' same identical ballots so originally rejected, the undersigned are clearly of opinion that the action of the board in rejecting all three of them on the day of election was right, and that neither of them should now be counted either for the contestant or the sitting member. The majority of the committee think that two of them ought to be counted for the contestant, making his poll at the Livingston precinct 102 instead of 100, as it originally stood. This is a matter, if the House goes into the inquiry, to be settled by inspection. The House voted that Mr. Allen, the sitting member, was not entitled to the seat — 94 to 90 ; but rejected the second resolution declaring Mr. Archer elected — yeas 89, nays 91. The Speaker was directed to inform the governor of Illinois that a vacancy existed in the seventh Congressional district of that State. Note. — The debate in the House was confined to the points stated in the reports. The speeches upon the case will be found in volume 33. For the report: Mr. Archer, page 933; Mr. Washburne, page 923, 954; Mr. Norton, page 1022. Against: Mr. Allen, page 924; Mr. Harris, page 929; Mr. Millson, page 931; Mr. Stephens, page 932. THIBTY-FOUETH CONGEESS, FIEST SESSION. Millikbn vs. Fuller, of Maine. Where it was alleged that municipal officers conducting an election were not elected in strict compliance with the law of the State — held, that as no fraud was alleged, the persons officiating were officers de facto, and the election was valid. IN THE HOUSE OF EEPEESENTATIVES, April 10, 1856. Mr. Spinner, from the Committee of Elections, made the following report : That they have passed over and have not decided upon the claims of either CONTESTED ELECTION CASES IN CONGRESS. 177 party to be allowed the votes given, or returned to have been given, for •). D. Fuller and for Thomas Puller for the sitting member, and the votes returned for James Milliken for the contestant; for the reason that, whether so allowed or not, the result would not thereby be changed, unless — First. That votes from " plantations organized for election purposes only," from which lists of the voters were not returned to the office of the Secretary of State, as is contended the law required as a condition to being allowed, be re- jected; or, Second. That the votes of Hancock plantation be rejected, because the offi- cers who held the election were chosen at a meeting held in the month of April, when, as the contestant contends, the law of the State required that it should have been held in the month of March. There is no controversy about the facts in either case, and, although there was difference of opinion in the committee, whether the election of municipal officers in the Hancock plantation was held at a time permitted by the law of the State, yet the committee is unanimously of the opinion that the persons officiating were officers de facto, acting in good faith ; and, as no fraud is alleged, the votes from the district were rightfully counted for the sitting member. In regard to the returns from " plantations organized for election purposes only," the members of the committee were, as were the governor and council of the State of Maine before them, divided in opinion, and are not prepared to say what conclusion they would have come to in the case, had this been an original question ; but, inasmuch as contemporaneous constructions by the State canvassers have recognized the returns from these plantations, and that they have received and counted them as valid, notwithstanding the list of voters was not returned with the number of votes cast; therefore, under the circumstances, the committee do not feel authorized, whatever the opinion of some of its mem- bers may be of the effect of a non-compliance on the part of the plantation offi- cers with the plain requirements of the law, to exclude the votes of these plan- tations. The committee are unanimous in the opinion that Mr. Milliken had good and sufficient cause to contest Mr. Fuller's seat, and that deference to the opinions of large numbers of persons in his district required him to undertake and prose- cute the contest ; and that he should therefore receive compensation from the day on which his memorial was presented to the House. In accordance with these conclusions, the committee unanimously report the following resolutions : Resolved, That Thomas J. D. Puller is elected to, and rightfully entitled to| his seat in the 34th Congress. Resolved, That James A. Milliken, the contestant, be paid the usual mileage and daily- compensation from the 3d day of March last to this day. The House, without debate or division, adopted the first resolution. THIRTY-FOURTH CONGRESS, FIRST SESSION. Otero vs. Gallegos, of New Mexico Territory. Where Mexican citizens elected to retain their Mexican citizenship, though inhabitants of United States territory — held, that they could not vote for a delegate to Congress. Where a probate judge annulled a precinct election — held, that it was not necosnary to inquire into his powers, as the House of Representatives has the power to revise his action. Where the vote is by ballot the election judges cannot deprive the elector of his right of secrecy ; and when it is done it tends to vitiate an election. H. Mis. Doc. 57 12 178 CONTESTED ELECTION CASES IN CONGRESS. IN THE HOUSE OF REPRESENTATIVES, May 10, 1856. Mr. W. R. Smith, from the Committee of Elections, made the following report : The contestant, Miguel A. Otero, claims the seat now occupied by the Hon. Jose M. Gallegos, upon eleven specifications as set forth in his memorial to Congress ; the most important of which your committee have examined in con- nexion with the testimony. The first question is presented in the following words by the contestant : 1. Under the eighth article of the treaty of peace between the United States and the repub- lic of Mexico, proclaimed July 4, 1848, among other things it was provided that " those Mexican citizens who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States, but they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty ; and those who shall remain in the said territories after the expiration of the year without having declared their intention to retain the character of Mexican citizens shall be considered to have elected to become citizens of the United States." The said contestant avers that, In the county of Santa F6, in precincts numbers one, two, three, four, five, six, seven, and eight, eight hundred voters who had elected as aforesaid, under said treaty, to retain the title and rights of Mexican citizens within one year from the ratification of said treaty, and who were not American citizens, and who had no right to vote, and who were disqualified from voting by the decision of the supreme court of New Mexico — which decision is unre- versed and unappealed from — and who were also disqualified by the thirty-eighth section of the election law of said Territory, did, at said election, on the third day of September, 1855, in said precincts in said county, cast for you illegal votes to the number of eight hundred, which votes should be rejected, and not counted in your favor, but were counted for you as legal votes. i. In the county of Rio Arriba, in precincts numbers one, two, three, four, five, six, seven, and eight, six hundred illegal votes of Mexican citizens having no right to vote were polled and counted for you when they should have been rejected. 8. In precincts numbers one, two, three, four, five, six, seven and eight, in Santa Fe county, minors and Mexican citizens, and persons not entitled to vote, to the number of five hundred, illegally voted for you, and said votes were counted for you, and they should have been rejected. In referring to the treaty of peace between Mexico and the United States, your committee find the 8th article of said treaty to be in the words as above set forth by the contestant. (U. S. Statutes at Large, vol. 9, page 929.) The organic law of the Territory (U. S. Statutes at Large, vol. 9, page 449) provides that " the right of suffrage shall be exercised only by citizens of the United States, including those recognized as citizens by the treaty." The elec- tion law of the Territory, in sections 19, 21, and 28, expressly confines the right of suffrage to citizens of the United States, and declares heavy penalties against " any Mexican citizen" who shall vote. But it is contended by the sitting delegate, through his counsel, " that it is a conclusive answer to this that no notice was given of the particular voters intended to be impeached on this ground." your committee think that the notice was quite sufficient to authorize the taking of the testimony. No such objection was made by the sitting member or his counsel at the time of taking the depositions. On the contrary, he appeared and cross-examined the witnesses without any objection whatever; ana if he had had no notice at all, but had appeared and cross-examined, he would have been estopped from setting up the want of notice. But the sitting delegate, through his counsel, says, further, in substance, that the manner in which the said Mexican citizens elected to remain Mexican citi- zens, under the 8th article of the treaty above referred to, was not sufficient in law to make them illegal voters ; that it required an act of Congress to consti- lute the tribunal to receive the declaration and to prescribe the mode of making it. CONTESTED ELECTION CASES IN CONGRESS. 179 No act of Congress has ever been passed prescribing the mode of making the " election to remain as Mexican citizens." Your committee, for many reasons, think that no act of Congress was necessary. If an act had been necessary, the neglect of Congress to pass such an act would amount to an abrogation of that clause of the treaty, because the time of making the declaration is limited to " one year from the date of the exchange of the ratifications of this treaty." The treaty, in the 8th article, conferred upon Mexican citizens the right to retain that citizenship by making a declaration to that effect, but required them to do it within one year ; and it will not be seriously contended that the failure of Congress to provide a particular mode of making that declaration would deprive the citizens of so important a right, secured to them in so solemn a form as a treaty stipulation. It will be remembered that citizens of this Territory were, at the time, citizens of Mexico, and the treaty did not intend to make them American citizens without their own consent. It would be a mere mock- ery to say that they had the right to retain the character of Mexican citizens, and yet could not do so, because no mode of doing it had been prescribed by law. As this is an important point in this case, your committee deem it due to the House to show the precise manner in which the " declaration" was made. The military governor of the Territory, Colonel Washington, in pursuance of the eighth article in the treaty, issued a proclamation in the Spanish language, of which the following is a translation : " To the people of New Mexico. "Whereas, by the eighth article of the late treaty of peace, friendship, and limits between the United States of America and the United Mexican States, the inhabitants of the terri- tories ceded to the United States are required to declare their intentions to remain citizens of the Mexican republic within one year, reckoned from the date of the ratification of the treaty; and those who remain in the said territories after the lapse of one year, without having declared their intentions to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States ; and whereas the year, reckoned from the ratification of the treaty, will expire on the thirtieth of next May ; and as it is desirable, for the unembarrassed action of the government, that it should be publicly known who, at that time, shall have become entitled to the rights and privileges, and shall have made themselves subject to the duties of citizens of the United States — "Therefore, I, John M. Washington, governor of the Territory of New Mexico, do hereby direct that there shall be immediately opened in the prefectures of the several counties of ine Territory, by the clerks of the courts of the prefectures, registers of enrolment as follows : ' We elect to retain the character of Mexican citizens.' " And those who in each county shall elect to do so, may personally register their names ; and those who do not appear and sign said declaration on or before the thirtieth of next May shall be, in accordance with the treaty, considered citizens of the United States. / " Within six days after the thirtieth of May the registers shall be sent with the/certificates of the clerks of the prefectures of the several counties to the secretary of the /Territory, in order that they may be by him published and distributed to the several tribunals of justice in the Territory. / L " Given under my hand and seal at Santa F6, the twenty-first of A^ril, eighteen hundred and forty-nine. "J, VS.. WASHINGTON." Under this proclamation many Mexican citizens made the declaration, and retained their " Mexican citizenship," according to the aforesaid eighth article of the treaty. / Your committee are of opinion that, in the absence of any congressional en- actment, the governor of the Territory was the / proper person to designate the tribunal and to prescribe the mode of making the declaration ; and that any declaration made in good faith, under the foregoing proclamation, is legally valid in all essential respects. Colonel Washington was the agent of the gov- ernment, and his proclamation was a public act, which Congress will notice without formal proof of its issuance, although it is shown by the witnesses, [see printed testimony in this case, page 22,] that the Mexican citizens acted in pursuance of Governor Washington's Droclamatinn 180 CONTESTED ELECTION CASES IN CONGRESS. Accompanying tie depositions is the original book opened and kept by the clerk of the prefect court of the county of Santa JFe, identified and marked as an exhibit, upon which appear the names of many of the persons who are alleged as having illegally voted for Jose' M. Gallegos. At the commencement of this book is a declaration, in both English and Spanish, as follows : " We elect to retain the character of Mexican citizens." "Nostras elejimos retener el caractar de ciudadanos Mexicanos." Following the list of signatures to this declaration is the following certificate: " Territory of New Mexico, " County of Santa F6: ' ' I, James M. Giddings, clerk of the prefect court, do hereby certify that the foregoing is a correct list of all who have elected in said county to retain the character of Mexican citizens. " Given under my hand and seal this 1st day of June, 1849. rT _ -, "JAMES M. GIDDINGS, Clerk. LL- SJ "By T. B. GIDDINGS, D. C." This proceeding was a substantial compliance with the provisions of the treaty, and a literal execution of its terms. The men who subscribed that declaration, or who authorized their names to be subscribed, declined to acquire the rights of American citizens, and cannot now acquire that citizenship except by the process of naturalization under the laws of the United States. They had the option ; and having made their choice, they must submit to the conse- quences. Your committee are of opinion that all such persons as elected under the treaty to retain the " character of Mexican citizens" are, and were at the time, unnaturalized foreigners, and as such, having no right to vote, their votes ought to be rejected. The evidence of the making of the declaration, and that some of the declar- ants voted for the sitting delegate, is not conclusive ; but it is quite sufficient, in the opinion of your committee, to throw the onus probcmdi upon the sitting delegate. The report proceeds to cite portions of the evidence in the case going to show that 143 votes were given in Sante F6 county by persons who had signed the declaration, and that all these votes were given for the sitting delegate. The report proceeds : The next point relied on by the contestants is found in the following specifi- cation : 9. In precinct number , at Mesilla, in the county of Dona Ana, votes to the num- ber of three hundred and twenty-nine, which were illegal, fraudulent, and void, were counted for you by the secretary of the Territory of New Mexico, when they should have been re- jected, for the following reasons : First, because the poll-books for said precinct, by the pro- bate judge of said county, were not used at said election, by the unlawful interference of the priest at Mesilla ; second, because there was but one poll-book kept at said precinct ; third, because votes to the number of one hundred were Illegally received for you after six o'clock on said day ; fourth, because one hundred and ninety-six votes, placed in the ballot-box of said precinct for me, and which should have been counted for me, were not counted for me, but remained in said ballot-box uncounted ; fifth, because the judges of said election at said precinct, appointed according to law, were not permitted to serve, and others, without being sworn according to law, or entitled to act as judges, did act as judges of said election at said precinct ; sixth, because at the time of counting the votes of said county before the probate judge of Dona Ana county, William Claude Jones, a citizen having the right to question the legality or illegality of said votes, did then and there question, before the probate judge of said county, the legality of all the votes polled at said precinct, and the said votes, num- bering four hundred and one, of which you received the number of three hundred and twenty- nine votes, were adjudged illegal, fraudulent, and void, by the said probate judge of said county, and sliould not have been counted for you by the secretary of the Territory of New Mexico, but were illegally counted for you by him. CONTESTED. ELECTION CASES IN CONGRESS. 181 This specification gives rise to the necessity of examining the acts of the ter- ritorial legislature of -New Mexico on the subject of elections; and the follow- ing clauses of said acts are deemed important in elucidating the facts : Sec. 10. The probate judges shall cause two poll-hooks to he made for each precinct in the manner prescribed in the following section, and shall forward them to the judges of the election on the day they are notified of their appointment. Sec. 11. It shall be sufficient for the poll-books to contain, in substance, as follows: Poll-book of the election held on the day of , 18—, in the precinct of , in the county of — ■ , for the election of . This certifies that the judges appointed were sworn according to law ; signatures of the persons taking the oath ; names of voters ; names of persons voted for. The polls being closed, the number of votes received by each candidate shall be added up at the toot of each column. CERTIFICATE. We, the undersigned, judges and clerks of elections held on the day of Septem- ber, 1851, in the precinct of , in the county of , certifythat, having counted the votes polled for the respective candidates in said election, the result is as follows : A received votes for the office of . Mr. B received votes for the office of . Mr. C received votes for the office of . O., &c. Here the names of the judges who signed ; and here sign the clerks, Z. O. , who are H. Y. Sec. 12. The judges of the election, before entering upon the discharge of their duties, shall take an oath for [before] any judicial authority, or shall swear each other mutually in the fol- lowing manner : I, : — , swear impartially to discharge the duties of judge of the present election according to law and to the best of my knowledge : so help me God. Sec. 13. Said judges shall appoint two clerks, who, before entering upon the discharge of their duties, shall take an oath before one of the judges of the election, faithfully to record the names of all the voters, and impartially discharge their duties as clerks of the election. Sec. 15. If any probate judge should fail to appoint the judges provided by this act, or if from any cause they shall fail to attend at their respective precincts on the day of the elec- tion, it shall be lawful for a majority of the qualified voters in the precinct where said va- cancy occurs to appoint judges, who shall conduct said election in the same manner and to the same effect as if they had been appointed by the judge of probate, as provided in this act. Sec. 16. The polls shall be open from nine o'clock a. m. until six o'clock p. m., without adjourning, unless by consent of the people. After closing the polls the votes shall be counted in public by the judges, with the assistance of the clerks, one of whom shall take one of the poll-books, without delay, to the probate judge, in whose office one of the poll-books shall re- main for the public inspection of any person whatsoever. Sec. 17. _ Within six days after the election, the probate judge shall call to his assistance one of the justices of the peace of the county, and publicly examine and count the votes polled for each candidate, giving notice thereof two days previous, which notice shall be Eosted up at the court-house for the information of the people, where the examination is to be eld, and any citizen shall have the right to question the legality or illegality of any vote. Sec. 22. All votes shall be by ballot, each voter being required to deliver his own vote in person. Each ticket shall be numbered and the number placed opposite the name of the voter ; said tickets shall in no case be examined, unless the election be contested, but shall be delivered by the judges of the election to the probate judge of the county, who shall retain them until the expiration of the time allowed for the contesting of the election, and they shall then be destroyed. As connected with these laws, we will examine the facts. The judges of election were not sworn, as required by section 12, above quoted. The proof of this fact is found in the deposition of Richard Campbell, pro- bate judge of the county of Dona Ana, (page 40 of the printed testimony,) where he says " two sheets of one of the poll-books were returned to me with the oath and certificate not signed. At page 42 of the printed testimony will be found a transcript of the judi- cial action of the probate judge, annulling the election at this precinct, for the reason stated, as well as for other reasons. It is not necessary to inquire into the powers of the judge of probate in annulling the vote at this precinct, for the House of Representatives has undoubtedly the right to revise this act of the probate judge; and hence we must look to facts as we find them in the testi- mony, in order to determine whether or not this vote should be rejected. The only use we have for the decree of the probate court is to inquire into it as evi- dence, as far as it goes. This judgment, which will be found on page 42 of the printed testimony, is as follows : 182 CONTESTED ELECTION CASES IN CONGRESS. Exhibit A. Friday, September 7, 1855. Court met pursuant to adjournment. In pursuance of the order of the probate court, dated Tuesday, the 4th instant, this day was set apart for the examination of the votes polled at the election held on the 3d instant. Having called in the assistance of Thomas J. Bull, justice of the peace for Las Cruces pre- cinct, the court now proceeds to examine and count the votes, commencing with the precinct of La Mesilla ; and it appearing that there was but one poll-book made out by the judges and clerks of election precinct, w. C. Jones files a motion to reject and annul the election of said precinct ; and it appearing, upon further examination, that there were one hundred and ninety-five votes within the ballot-box which were not numbered and not down on the poll- books, which number of votes appearing to be all on one side, gives it greatly the appear- ance of fraud ; and further, that the certificate showing that the judges appointed were sworn according to law, was not signed as the law directs ; and further, that they refused to use the poll-books furnished and made out in proper form according to law ; that they made out others which were not in form as required by law ; therefore it is hereby ordered and decreed by this court, that the returns from said precinct of Mesilla be, and the same are hereby, re- jected and annulled on account of illegality of same, and evident fraud on the part of judges, clerks, or other persons having to do at the polls of said election. E. CAMPBELL, Probate Judge. The 11th section of the election laws, herein above referred to, gives the form of certificate which shall be at the head of the poll-books and signed by the judges ; and this form includes a certificate that the judges were sworn. This certificate signed would be legal evidence of the fact that the judges took the requisite oath ; but in the present case it is absolutely wanting. It is not insisted that no other proof could be admitted to establish the fact that the judges were sworn; but in the absence of the proper legal certificate, and of all other evidence of the fact, it must be admitted, that this essential requisite of the law has not been complied with. In the case of Draper vs. Johnston, (see Contested Elections, page 710,) the following rule was laid down : When such oath is required it will be presumed to have been taken, unless the contrary appears, and the onus probandi will be thrown upon him who alleges the omission of it ; but, as the law of Virginia requires a record of the oath to be made in the clerk's office, a certificate from the clerk that it has not been filed may be sufficient to shift the burden of proof upon the other party. Instead of the certificate of the clerk that the oath is not recorded, we have in this case the testimony of the jndge of probate that the certificate was not signed ; and we also have his judicial decree annulling the election at that pre- cinct, containing as one of the reasons that the certificate and oath of the judges was not signed. If the judges of the election at Mesilla precinct had taken the requisite oath, the fact could have been proved by the judges themselves. The neglect to prove this on the part of the sitting delegate strengthens the supposition that they were not sworn. The action of the probate judge was public, and the legality of the election at that precinct was openly impeached by W. 0. Jones, under the 17th section of the territorial law ; and. the neglect of the judges.of election to be sworn is especially referred to in the notice. Your committee are not satisfied that the judges were sworn, and they refer the House to the uniform rule, as heretofore acted upon by the House. In McFarland vs. Culpepper, (Contested Elections, page 221,) it was decided that " the neglect of returning officers to be sworn when the law requires them to act under oath will vitiate all returns made by them." In Draper vsi Johnston, (Contested Elections, page 702,) it was decided that " the neglect of the election officers to take the oath required by law will vitiate the poll for the county or precinct in which such officer acts." In Easton vs. Scott, (Contested Elections, page 272,) it was decided that CONTESTED ELECTION CASES IN CONGRESS. 183 " when an election is required to be held hy three who are to be sworn, and it is held by two who are not sworn, their proceedings are irregular, and the votes taken by them are to be rejected." The other irregularities and illegalities at this precinct were very great. The probate judge, as required by law, furnished the poll-books for this pre- cinct in due and proper form, as will be seen from his deposition, on page 39 of the printed testimony. They were rejected by the judges of election, and others substituted which did not contain the requisite certificates, either in form or in essential substance. The law requires two poll-books to be kept — one to be sent to the secretary of the Territory, and the other to be retained by the probate judge. In this case only one was kept, and that was deficient in form and substance, and was upon loose sheets of paper, which gave every opportunity for fraud and unfairness. Two clerks are to be appointed and sworn ; and it may well be presumed that they are expected to act as a check, the one upon the other. At the Mesilla precinct this important function was not performed. There were two clerks ; but it does not appear that they were sworn, and they did not pretend to keep more than one poll-book, and that upon loose sheets of paper, which might be abstracted or altered. By section 22 of the election law herein above quoted it is enacted that " all votes shall be by ballot, each voter being required to deliver his own vote in person. Each ticket shall be numbered, and the number placed opposite the name of the voter ; said ticket shall in no case be examined, unless the election be contested." It is apparent that the law intended to give the voters the ad- vantage of secrecy in depositing their suffrages, with a positive prohibition against violating this secrecy, except in case of a contest between the rival can- didates. The voter was by iaw entitled to the protection of the ballot, and the judges had no right whatever to deprive him of that protection by crying out his vote as it was deposited in the box. In the case of Eaton vs. Scott (Contested Elections, page 272) the following ruls were acted upon : When votes are given by ballot, an elector cannot be compelled to disclose the name of the candidate for whom he voted. If votes are required by law to be given by ballot, viva voce votes ought not to be received. In the case before us, Bartolo Madrid (printed testimony, page 56) testifies as follows : Sixth question. As the tickets were handed in by the voters, were they opened and "cried out," and then registered, or were they put into the box and afterwards taken out, " cried out," and registered? Answer. As the tickets were handed in, the president of the election took them and opened them, and "cried them out;" the number and registry was then made, the ticket again doubled and put into the box by the president, and were not taken out and counted by the judges and clerks. Tour committee are of opinion that this irregularity violated the sacred right of secrecy belonging to the voter. The arrogance of an election president or judge, in assuming and exercising the right to open and proclaim a ballot in presence of the elector as he handed in his vote, is equal to compelling the elector to disclose the name of the candidate for whom he votes. It seems to your committee that, if the testimony of Madrid is to be credited, this proceed- ing amounted to a viva voce election. The report further states : " Your committee have found, in examining this testimony, the following among other important facts : " That the secrecy of the ballot was violated by the act of the judge, in cry- ing out the votes in the presence of the voters as they handed in their tickets. " That the officers of the election were not sworn. 184 CONTESTED ELECTION CASES IN CONGRESS. " That a bystander, one Escarate, who was neither a judge nor a clerk, was allowed to take the tickets, as handed in by the voters, and write upon them, and then hand them to the judges. " That the poll-books, as furnished by the judge of probate, according to law, were rejected by the judges and others, on loose sheets of paper, substituted and used. " That 192 ballots were found in the box not numbered or registered, and it is alleged that one of the judges connived at and assisted in this fraud. " The election at the Mesilla precinct is so surrounded with fraud, irregu- larity, illegality, and mystery, that a majority of your committee recommend that the votes in that precinct be rejected. " Your committee having thus concluded that the seat ought to be given to the contestant, feel it due to themselves to state that they have examined all the points of defence as presented by the sitting delegate, and they find nothing to change their conclusion." In the precinct of Ohamisal the sitting delegate charged that 160 legal votes were fraudulently abstracted from the ballot-box, and the same number of illegal votes put in for the contestant. The committee refused to receive the evidence of this fraud, as notice was given that it would be taken before the chief justice of the Territory, whereas it was taken before a judge of probate. The report concludes : But it may well be questioned whether such testimony as this ought to be received to invalidate an election. It would be productive of unending frauds and perjuries to permit parties to come forward, after an election by ballot, and swear that they voted differently from what the ballots themselves exhibit. Especially must this principle apply under the system adopted in New Mexico, where every ticket is numbered, and the number also recorded in the poll-books opposite to the name of the voter. The only proof which ought to be admitted to establish a fraud such as that charged in this case, would be to show, by affirmative testimony, that the judges, clerks, or some other persons actually withdrew the tickets given by the voters and substituted others for them. Until this shall be shown, the oath of the voters should not be received to con- tradict the record and the ballots themselves. The very nature of the ballot renders this principle a necessity ; otherwise, every election might be tried over a second time by the oath of the voters instead of the ballots deposited in the boxes in the presence of the officers and of the public. In the case of Van Rensselaer vs. Van Allen, (Contested Elections, page 76,) your committee find the following remarks, setting forth the principles which seem to have been acted on in that case : " The petition stated that numbers of persons had sworn that they had voted for the petitioner, whose votes, by the returns, it does not appear were counted. On this it was observed that the committee did not consider this allegation of a nature proper to engage their attention. It was presumed that the House of Eepresentatives would never institute an inquiry into such a species of evidence. It was extremely difficult for a man to swear that he had positively voted by ballot for a particular candidate, since it is well known that persons had, on such occasions, frequently put in a ballot for the person they bad not intended to vote for. In the hurry and confusion which often take place the ballots get shifted, and one is put in in lieu of the other." Even then admitting, for the sake of argument, that the testimony had been properly taken according to the notice, your committee would hesitate long before recommending the House to attach any importance to it, or to admit so dangerous a precedent. CONTESTED ELECTION CASES IN CONGRESS. 185 It appears that Gallegos's majority, upon which his certificate was awarded, was 99 votes. Your committee find of Mexican votes cast for Gallegos, which they think ought to be rejected 131 This gives Otero a majority of 32 Of the votes counted for Otero at the Mesilla precinct there were 72. Of the votes counted for Gallegos at the Mesilla precinct there were. 330 Deduct 72 Leaves 258 32 This vote being rejected, leaves Otero's majority 290 Upon this state of facts your committee recommend the adoption of the fol- lowing resolutions: Resolved, That Jose' M. Gallegos is not entitled to a seat in this body as delegate from the Territory of New Mexico. Resolved, That Miguel A. Otero is entitled to a seat in this body as such delegate. The House agreed to the resolution of the committee without a division. Note. — The only arguments in this case in the House were made by the sitting member and the contestant upon the points made in the report. THIRTY-FOURTH CONGRESS, FIRST SESSION. Reeder vs. Whitfield, of Kansas. There were two contests in the House upon this case. The preliminary one was upon the question of authorizing the Committee of Elections to send to Kansas for persons and papers. The contestant denied the validity of the election law under which the incumbent obtained his certificate, on the ground that the legislature which passed it was imposed upon the people of Kansas by a foreign invading force. The incumbent denied the facts, and contended, even if they were true, that the contestant was estopped from pleading them, because he, as governor of Kansas Territory, gave the certificates to the members of the legislature. The committee and the House held that full power should be given to send for persons and papers. The second contest was for vacating the seat. The committee and the House held that the election laws of Kansas were nullities, and that Mr. Whitfield was elected without authority of law. A preliminary report was made in this important case. It is given in full below : IN THE HOUSE OF REPRESENTATIVES, March 5, 1856. Mr. Hickman, from the Committee of Elections, made the following report : The relative position of the contesting parties, and the disputed questions of fact, appear in the memorial of the contestant, who denies the entire validity of the election law under which the sitting delegate obtained the certificate of the governor of the Territory. This denial is based on the alleged fact that the legislature which passed it was imposed upon the people by a foreign invading force, who marched into the Territory at the election, and seized upon 186 CONTESTED ELECTION CASES IN CONGRESS. the powers of government which Congress had provided for the actual inhabit- ants; which powers, it is said, have been held and exercised ever since by these strangers to the soil, under no other title than that of a strong hand and superior numbers, and to the entire subjugation of the people of the Territory. Two other reasons are assigned for the invalidity of the same statute, but they are questions of law rather than of fact. The contestant also states that, at the election for delegate, held under said law, and at which the sitting delegate claims to have been elected, many hundred illegal votes of non-residents were polled, and the rules for conducting it, prescribed by the statute, disregarded. We understand the sitting delegate to deny these asserted facts, and also to contend that, as the contestant was governor of the Territory when the first election for members of the legislature occurred, and gave certificates of elec- tion to the persons pretending to be elected, he is estopped from setting up now that they were not legally elected, whatever the state of facts may be ; and that, therefore, the evidence indicating those facts cannot be heard, or the alleged wrongs investigated. Thus the case stands before us now, as to the right of the Hon. J. W. Whitfield to a seat. The Hon. A. H. Reeder, the contestant, bases his right to the seat on an election held at a different time — a right to which our attention has not as yet been directed, inasmuch as we understand no process for witnesses in relation to it is asked by either party. The questions, then, to be considered are — 1. The importance and necessity of having a full investigation of the facts thus in dispute. 2. The effect of the alleged fact that the contestant, in his capacity of governor of the Territory, issued certificates of election to a portion of the first legisla- ture. 3. Whether the evidence to establish the facts can be had satisfactorily and efficiently in any other mode than that suggested by the committee. Upon the first point, we would urge the well known and admitted truth, that the case in hand has excited, throughout the length and breadth of the land, an intense and prevailing interest, far beyond that of an ordinary contested seat, and which cannot spring from a mere personal interest in the two gentlemen who are parties to it. The actual state of affairs in the Territory of Kansas for some time past, and which it now becomes necessary to know in deciding the present case, has, undoubtedly, arrested the attention and excited the feel- ings of [the whole people of the Union, to an extent unparalleled, except in the case of hostilities with a foreign power. It furnishes the leading topics of con- versation ; the subject of newspaper controversies, of numberless public meet- ings, harangues, lectures, and associations ; and the theme, also, of a special message to Congress, as well as a Presidential proclamation, in which the employment of the army forces is contemplated as a probable necessity. It is, however, still more alarming that sovereign States, in different sections of the Union, have deemed it their duty to consider the propriety of a direct inter- ference, by men and arms, with the current of events there. The allegation made— whether true or not, your committee cannot now decide — in substance is, that in this great republic, in this age of enlightened views, a part of the people of a sovereign State, with the apparent acquiescence of that State, have levied forces, which, duly organized, armed, aud equipped, have been marched upon an infant territorial settlement under the care and protection of the United States government, and by force of military power, and superior numbers and resources, bearing down and silencing all opposition, have seized upon the government which Congress committed to the inhabitants, and reduced them to a state of subjugation and vassalage, without the power of making a single law, or electing a single officer for themselves. It cannot be considered a matter of surprise that such a charge, rung like a trumpet- CONTESTED ELECTION CASES IN CONGRESS. 187 blast throughout the land, starting men to their feet in dismay and indignation, and arresting the attention, not only of the people, but of sovereign States, of Congress, and the President. The scene of this impending civil war is remote from the Atlantic States, and events are heard of only after they have folly transpired. We must expect that different statements and versions of these most important occurrences will be made and circulated, and that fact and falsehood will be mingled. And more especially so, as the vague and uncertain means of information afford, on the one hand, every opportunity for denying the truth altogether, or, on the other hand, of coloring and exaggerating it. "We must also expect that, true to the infirmities of humanity, men and legislators will, to some extent, adopt those statements which conform to their wishes, and commend or exculpate their friends. And thus it is, that upon a great and momentous question, involving the right, the very existence of self-government, the supremacy of the laws, the lives and liberties of thousands of our fellow- citizens, and the peace, perhaps the perpetuity of the Union, not only the people of the States, but the legislators of the nation, are at variance — not upon principles or inferences so much as upon the simple facts necessary to under- stand the case. "We may safely declare that there is no undisputed history. It would, indeed, present a singular spectacle if Congress Bhould go on to discuss these questions ; each senator and member in debate asserting his own facts and denying those of his opponents ; failing to reach any satisfactory results, or arriving at results only by groping among allegations and denials, when they possess the most ample power to spread upon the record and before the country well-authenticated truths. It cannot be denied that the public expect from Congress an investigation which will separate truth from falsehood, and furnish a narrative in which full confidence may be placed. Nor can your committee doubt, that when this point shall be reached, united and tranquillizing action will commence. "When the wrong, now defended by denial of its existence, is clearly proven, or shown to be imaginary, it cannot be that Congress or the public will find much difficulty in pronouncing upon the case a righteous judg- ment. But if we should avoid or smother investigation in a matter of Buch general interest and importance, and especially for reasons which might be considered by the public mind trivial or insufficient, we would but expose our- selves to the charge of wilfully shunning a plain duty, and seeking to leave the question in doubt and uncertainty. In the opinion of your committee, no reasons ought even to be considered, much less urged, against an entire and thorough investigation, unless those reasons are clear, substantial, and con- vincing. Tour committee have required the contestant to state, among other things, in writing, and with reasonable detail, the facts he proposes to establish before us by the witnesses and papers he asks to have procured; and he has submitted a paper, from which we make the following extracts : That immediately before the 30th day of March last, being the day fixed for the election of a legislature for the Territory of Kansas, large bodies of men, without pretensions to resi- dence in the Territory, came over from the neighboring counties of the State of Missouri, armed and organized into companies with their proper leaders, and supplied with provisions, fodder, accommodations for camping, ammunition, and, in one case at least, with artillery. That they marched into the Territory with banners and martial music, and encamped in parties in the vicinity of different election polls, shortly before the said election, for the pur- pose of preventing the people of the Territory from electing members of the legislative as- sembly, as provided by the act of Congress, of taking the power into their own hands, and, by intimidation or violence, taking possession of the polls, and themselves going through the form of electing members of the legislature, some of whom thus elected were non-residents of the Territory. That the country having been so recently settled, and the people as yet few and sparse, and comparatively unknown to each other, unorganized and unprovided with resources of any kind, were of course compelled to submit. That in the first election district there were from six hundred to one thousand of these invaders on the ground, who declared that they came to vote, and would vote at all hazards of life and property, and ac- cordingly did vote, outnumbering the .inhabitants, and by their violent conduct detejsing 188 CONTESTED ELECTION CASES IN CONGRESS. them from voting. That in the second election district, a party of several hundred of these persons, on heing refused leave to vote without testifying to their residence, made an effort to demolish the house in which the election was held ; and, finally, by threats and violence drove the judges from the ground, and substituted others from their own body, whilst the actual residents of the district generally retired to their homes and declined voting. That in the third election district, several hundred of them took possession of the polls with similar manifestations of violence and intimidation, substituted election officers from among them- selves, and took the entire control of the election, the inhabitants retiring from the ground. In the fourth, fifth, sixth, and seventh election districts, similar bodies of men appeared at the polls, with more or less of military organization, and more or less of intimidation and vi- olence, in each case voting for members of the legislature as though they resided in the Ter- ritory, and producing a result different from that which would have happened if the elections had been controlled by the qualified voters of the district. That in the sixteenth election dis- trict the election was controlled by a large number of non-residents, some of whom had come in organized and armed a day or two before the election, and established themselves in camps near the polls, and who returned to their homes, in the State of Missouri, immediately after the election ; and some of whom had come from Platte county, Missouri, by steamboat, in the forenoon, voted, and returned home by the same boat in the evening ; and thus over eleven hundred votes were polled, of which not over three hundred were cast by actual in- habitants of the Territory. In the thirteenth election district, very few, if any, of the actual inhabitants participated, in consequence of the presence of a large body of strangers, who took the control of the election, and polled nearly the entire vote. In the eighteenth, (a small district of some twenty or thirty voters,) a well-armed body of strangers appeared on the election ground to the number of about sixty, who voted, and immediately after took up their line of march out of the district, and towards Missouri, their leader being the Hon. Da- vid E. Atchison. In the eleventh, fourteenth, and fifteenth election districts, the under- signed will endeavor to prove, and believes he can proove, similar illegal voting. On the day fixed for passing upon the returns of these elections, to wit, he fifth day of April, complaints were made to the governor from some of the districts, setting forth these facts, and there appeared to be defects in some of the returns. Seven of the said districts were set aside, and in the remaining cases, the returns being in form, and no complaint being made of illegal votes, as provided in the proclamation, certificates of election were granted according to them. The fact in regard to the uncontested districts have come to the knowl- edge of the undersigned since that time, and he has also learned that the reason why the same were not contested was, that the inhabitants were prevented by intimidation and fear of injury to life or property from doing so, considering it unsafe to assume the position of contestants. One gentleman, who was active in getting up a contest in the sixteenth district and who made affidavit to the complaint, was, after much denunciation, forcibly seized by a party of men, carried off into the State of Missouri, and there lynched with gross indignity and brutal violence. An election having been ordered for the 22d of May, 1855, to fill the vacancies created by setting aside certain of the districts, persons were then elected ; and in the sixteenth district, as your memorialist has since learned, the election was again carried for the same candidates, and by the same means as it had been on the 30th of March ; but no complaint was then made. In the other districts, the actual inhabitants were unmolested, and elected other representatives, who, as well as those of the sixteenth district, received their certificates from the executive. All the members thus elected on the 22d of May, however, excepting those from the sixteenth district, (elected by a body of strangers,) were rejected, and their places filled by those whose election had been set aside, and who had not the certificate of the gov- ernor, as required by the organic act, although the legislature had not the power, usually conferred upon legislative bodies, to judge of the qualifications of their own members. The undersigned also desires to prove that, notwithstanding Congress, by the organic act, fixed a certain place as the temporary seat of government of the Territory, and in the same act forbade the legislature to exercise any power inconsistent with the provisions of said act, yet the legislature, in disregard of said congressional prohibition, assumed to change the temporary seat of government to a place entirely different from that which had been desig- nated by Congress, and at that place, so selected by themselves, enacted all their laws, with two exceptions. The undersigned also desires to prove, by said witnesses and papers, that, at the election in October last, at which the sitting delegate (J. W. Whitfield) claims to have been elected, he received many hundreds of illegal votes, principally non-residents, and that the said elec- tion was not conducted according to law. These toe startling allegations ; and when the contestant offers to prove their truth, your committee shrink from the deep and solemn responsibility of declin- ing to allow him the opportunity to do so, or of casting the least obstacle in his way. When facts are proclaimed to exist, striking at the very root of our insti- tutions, and tending to the total subversion of republicanism, it is no time to be dredging among technicalities or abstractions for the material out of which to CONTESTED ELECTION CASES IN CONGRESS. 189 construct equivocal objections. "We conceive that the rights of the contestant personally, the rights of the citizens of the Territory whom he claims to repre- sent, and upon whose behalf he appears here, the right of this house to know whether the people under their tutelage and protection have been despoiled of that self-government which Congress conferred upon them, and the duty which the House owes to their constituents and the country, all concur to demand the proposed investigation ; and that, too, in the most thorough and effectual mode that can be devised. The objection to this investigation, on the ground that the contestant is estopped from denying the legality of the territorial legislature, seems to your committee to be entirely too narrow and untenable. The doctrine of estoppel is pronounced by all judges and lawyers to be an odious one, even in courts of justice, bound down by strict rules of law, which they cannot transgress, and is never treated with favor. In this house, which is bound by no rule but its own sense of right and conscientious discretion, it would be most singular, at least, to select one of the most obnoxiouB dogmas of the common law — one not binding upon us, and which we can adopt or reject at pleasure — one which the courts have desired to get rid of — and make it, unnecessarily and gratuitously, the means of shutting out the light from ourselves and our people, and of effect- ually smothering an inveBtigai.ion of facts which have convulsed the country. But, again: if we concede the doctrine of estoppel, which we are thus asked to adopt, the next question to be met will be, whether this doctrine applies at all to public official acts ; and whether a person acting in an official capacity can estop himself from the performance of any duty which he may afterwards owe to the public as a private citizen, or in another and different official capacity. Tour committee consider it perfectly clear that he could not. The doctrine of estoppel is applicable only to matters of private right, and all attempts to apply it to public official acts and political questions can effect nothing more than the raising of an issue of personal consistency, with which this house has nothing to do. But we go further still, and say, that even if all the objections already stated are abandoned, and, for argument's sake, the estoppel be held good against Governor Reeder, the case is not, in the least degree, affected by it. The people of the Territory, of course, are not estopped ; and although this is admitted, as we understand it, yet it is replied that none of them are contestants. The con- testing delegate appears before this house as the representative of the people of Kansas ; he speaks for them, and in their behalf; he states that they, through him, deny the validity of the legislature, or that it was ever elected by them. All this he sets forth in his memorial, and the House has recognized his right to do so by receiving that memorial without objection, and referring it to your committee. It is too late now to deny his right to speak for the people of Kansas. He came before the House as the mouthpiece and agent of that people, professing to have the right to speak for them, and in that capacity the House has granted him a hearing. There is no more familiar principle of law than that, when a petition is entertained, the capacity in which the petitioner claims to appear is admitted. If the House would deny the contestant's right to speak for citizens of Kansas, they should have rejected his memorial in the shape it was offered. Not having done so, to adopt the argument of the ob- jectors they are themselves estopped. But this is not all. This house needs no parties in court, or names on the record, to guard its own rights and privileges; nor any extrinsic action to quicken it in the exercise of the exclusive power to judge of the " election re- turns, and qualifications " of those who claim seats on this floor ; and they may institute, and often have instituted, investigations of the right of members to seats, without any contestant at all. It is not only their right, but their duty, to see that no one shall occupy a seat on this floor whose title is imperfect, and 190 CONTESTED ELECTION CASES IN CONGRESS. to investigate, of their own motion, whenever there is a reasonable doubt cast upon the case. It has been faintly urged that the book of acts and the journal prove the existence of a legal legislature. This* your committee suppose, will scarcely be pressed. They cannot understand how the issuing of a journal and a book of acts is referrible to a legally elected, any more than an illegally elected legis- lature; nor how the existence and production of these books can throw any the least light upon the subject,' when both parties admit there was a body of men professing to be a legislature, and differing only, in that most material question, as to its legal title to the office. The remaining question to be examined is, whether the evidence can be had satisfactorily and efficiently in any other mode than that suggested by the com- mittee ; and your committee would here report the following extracts from the paper submitted by the contestant: The undersigned states that the papers which he desires are among the executive minutes and executive files of said Territory, and that he made frequent efforts to procure certified copies from the same, by calling upon and sending to the secretary of the Territory ; that the said secretary, having made one of the copies desired by the undersigned, promised to make out the others, but delayed doing so until the undersigned had left the Territory ; after which he for some time evaded the requests Of messengers and letters, and at last positively refused to furnish them. The undersigned, knowing that Congress had by the organic act required the secretary to forward to the President of the United States semi-annually full copies of said minutes, expected to supply from the said semi-annual returns what the secretary had refused. In this reasonable expectation, however, he has been disappointed, as he has ascer- tained that the said returns, due on the 1st of July, 1855, and the 1st of January, 1856, have been withheld, in direct violation of the act of Congress. The undersigned also states that he did, in the month of October last, endeavor to super- sede the necessity of bringing witnesses before the committee, by an arrangement which he supposed was well matured, to take depositions in the Territory, and caused notice of various times and places to be served on his opponent in this proceeding. One of these places was in the State of Missouri, where he had engaged a resident of the place, and also a lawyer, to attend to the taking of them, for compensation. Why they were not taken at that place the undersigned has never learned, and does not know. In the Territory they were taken at some places ; but there being no person within fifty miles to administer an oath, and not even a justice of the peace under the disputed laws, they were sworn before private individ- uals. In other places they were not taken, because it was considered impracticable. The only judicial officer in the Territory whose power to administer oaths is undisputed is the chief justice ; and it could not be expected that he would, to the neglect of his official duties, and without the right to receive any compensation, spend three or four weeks in a trip of sev- eral hundred miles, amidst the discomforts of the Territory, merely for the purpose of admin- istering oaths. The two seats of associate justices are in dispute between four gentlemen, all claiming that they hold commissions from the President, which are still in force. The jus- tices of the peace appointed under the act of Congress have gone out of office by expiration of their commissions. Those who are to succeed them, by the territorial laws, are to be ap- pointed by the boards of county commissioners, and their appointments, as well as the laws under which they were created, the great mass of the people of the Territory refuse to ac- knowledge as binding, and would not voluntarily recognize the authority of such a justice by going before him to take an oath. As the want of legality and binding force of those laws is a part of the position assumed by myself and the people of the Territory in this case, it would be grossly inconsistent to invoke tfhe authority of these officers to our aid in assailing that authority ; and upon this point, it would seem from the answer of my opponent, both par- ties agree. In addition, it may be stated that the said county boards, either because they doubted their own authority, or because they considered justices of the peace unnecessary, or for some other reason satisfactory to themselves, have exercised their power in very rare cases. And although the undersigned is willing to admit that there may be justices who are un- known to him ; and although the executive minutes, the only certain source of information, have been closed against him, yet he has some knowledge of the Territory, and is aware of only three justices of the peace in it. Other reasons still might be adduced for the failure of the attempt to take depositions, drawn from the fact that the settlements of the country were not more than sixteen or eighteen months old ; and that there was an absence not only of officers, but also of facilities for bringing and keeping witnesses together, and transacting business at the different points where depositions should be taken. But upon these reasons it is unne- cessary to dwell. The undersigned did not ask for a commission to take testimony in the Territory, for a number of reasons. It would be liable to all the objections stated heretofore in regard to CONTESTED ELECTION CASES IN CONGRESS. 191 depositions, except the absence of an officer to administer the oath. The difficulties to be encountered by the commissioner, in the want of business accommodations and travelling facilities, would cause great and serious delay. There would be difficulty in keeping together and accommodating a number of witnesses at the requisite number of places, especially in the winter ; and, above all, the state of society is such, that the depositions could not, in all probability, be taken satisfactorily. The public annunciation of a time and place for taking them would attract attention and create excitement. Others than the witnesses would gatheT, and a strong interest would be felt and manifested in the result. The will of men has been already almost entirely substituted for the administration of justice, and, as I have shown, there seems to be no disposition on the part of those who have seized upon the legislative power to put in motion any system of law in the administration of justice. Trespasses, assaults, and murders are openly committed, and no one thinks of appeal for redress to the law, because from that source no redress can be had. "Witnesses would probably be intimi- dated, and made to testify under serious apprehensions ; and, in many cases, their evidence, if truthfully and boldly given, would undoubtedly produce exasperation, and perhaps con- flict. The present intelligence from the Territory brings strong and portentous indications of a renewal and continuance of lawless violence, such as has but recently converted its plains into encampments, and suspended all the peaceful pursuits of life, by making the rifle and the strong hand the only arbiters of men's lives and destinies ; and in the mean time, whilst the one party are satisfied that the slightest thing will be made the pretext for precipitating a hostile force into the Territory, the other are availing themselves of this apprehension to en- croach upon and destroy the few rights which have survived to the people of the Territory from the unheard-of tyranny and oppression under which they have lived for the past year. In a word, menace, intimidation, and improper influences are rife in the Territory, espe- cially along the border ; men's rights are held in no regard ; official authority commands no respect, and seems to have no restraining tendency or power ; and the peace of the country hangs by a thread. These are the principal reasons why the undersigned did not ask for a commission to be sent into the midst of these extraordinary scenes. The names of witnesses have been already submitted. By going over that list carefully and critically, it is believed that the number can be reduced. The reasons assigned for the failure of the attempt to take depositions have appeared to your committee satisfactory and sufficient ; and we may add that, had there even been the most undoubted neglect in that particular, your com- mittee would have deemed it their duty to obtain evidence of the facts, not so much for the sake of the Contestant, as for the grave issues made up before the House and the whole country. The severe allegation made by the contestant , of a most extraordinary and deliberate attempt on the part of a high officer of the government — the secretary of the Territory — to withhold all copies of papers in his office, and even those required to be forwarded semi-annually under the organic act, and thus to hide the truth and embarrass the action of Congress, would seem to be almost incredible, did not the contestant deliberately aver the fact, and his readiness to prove it. Tour committee have no further remark to make upon this subject, until the fact shall be established, and they shall have heard what is to be said in explanation or justification of the conduct of the secretary. It is sufficent now to say, that the allegation referred to is a sufficient excuse for the non -production of the papers. Your committee cannot consent that their action shall be baffled and thwarted in this manner, and are of opinion that these papers must be had. Tour committee are further informed, by the statement of the contestant, that the testimony cannot be otherwise procured ; that, in truth.there are such obsta. cles to encounter as to prevent the taking of it in any other way than that con- templated by them. This, we are convinced, is entitled to credit. The Presi- dent of the United States has issued his proclamation, and sent his orders to the military officers of the United States, looking to the employment of their forces in hostile conflicts throughout the very country where the witnesses must be collected and the testimony taken. If we are to judge from the general tone of the public press, and opinions found in messages and debates of the governors and legislatures of several of the States of the Union, it would seem that parties there are actuated by a bitterness of feeling unparalleled in our history, and that there is imminent danger of a serious collision. We cannot perceive the propriety 192 CONTESTED ELECTION CASES IN CONGRESS. of sending a commission to take testimony in the midst of a scene of strife, or impending strife, and particularly when the execution of the commission would necessarily bring adverse elements in contact, increase excitement, and present a constant point of conflict ; where commissioners would be powerless in the midst of masses of armed men, and where every circumstance would be unfavorable to eliciting truth. It would also appear, if the recited statement of the contestant be correct, that not only has this infant settlement been disfranchised and deprived of all civil rights and civil liberty — not only has it been deprived of the privilege of making its own laws and electing its own officers, but that they have been denied the ordinary privileges accorded to an enslaved people — of living under a system of government which shall, at least, secure them peace and tranquillity in their sub- jugated condition. Despotisms usually pride themselves upon preserving peace and good order within their limits, and endeavoring to commend to their subjects the state of vassalage under which they labor by a careful provision of all the tribunals necessary to preserve all the rights which remain. In this case, how- ever, it is contended that the functions of government have been usurped, not to be exercised and carried out in the usurpation, but principally to be neutralized and extinguished ; that the people are left without the protection of law, because they are without official agents, system of police, or administration of justice, to vindicate its remedies or enforce its penalties ; and thus, under a pretence and form of law, the country is surrendered a prey to violence, anarchy, and blood- shed. Your committee do not undertake to assert that these things are true, but they allude to the fact of their being alleged as tending strongly to prove the necessity of a thorough investigation. It has been objected that the cost of this investigation will be large. But the objection, we doubt not, derives most of its force from the exaggerated esti- mates of those who make it. The expense of the proceeding should certainly be looked to, but not to the exclusion of all other and higher considerations. Those charged with the administration of the government have not been in the habit of estimating cost so closely as it seems to be calculated in this cause. It has not been long since some thirty thousand dollars of the national treasure were expended for the purpose of reclaiming a single fugitive from service. This was done in a controversy about property, and the amount of that property insigni- ficant. This reference is not made for the purpose of casting censure upon Ex- ecutive action, but simply to show that, in sustaining the law, the expense to be incurred is measured by the dignity of the law itself, and not by individual rights which may be affected by the proceeding. In the case now before us, matters are involved which cannot be estimated by dollars and cents. We have to deal with a community professedly governed by Congress, over whom we claim the right to appoint the entire executive and judicial departments, and to whom we have guaranteed the right to elect the dominant portion of their legis- lature, and through them, to a limited extent, to make their own laws and their own officers. The general government insists on the right thus to govern and control them, and to chastise them with her army unless they submit quietly to such government. The duty of protection follows the governing power in all cases, political and domestic, as the shadow follows the substance. This is a principle of which no tyro is ignorant. When it is urged, then, that this weak and infant settlement is assailed by strangers, and deprived of the very rights which we have provided for them, and that, too, at the very moment when we are* exacting from it the most implicit obedience to our authority, it becomes a solemn duty on our part to protect as well as to govern, and that without regard to cost. If we should turn coldly and selfishly away from an ascertainment and a vindication of the rights of the assailed, we would prove ourselves false — utterly false — to our duty, our dignity, and our honor. CONTESTED ELECTION CASES IN CONGRESS. 193 Your committee do not hesitate to say, however, that they have determined, should the power asked for be granted, that they will exercise every reasonable precaution, not only to limit the number of witnesses, bat also the time for pro- ducing and examining them. In short, their effort would be to promote economy of time and money, so far as it would be consistent with a discovery of the whole truth. The details of this process must, of course, be left to the committee, who alone could arrange them accurately and satisfactorily by means of informal consultations between themselves and the parties to the contest, and who must be supposed desirous of incurring no expense which should not be actually ne- cessary. For the reasons stated, your committee respectfully recommend the adoption of the following resolution : Resolved, That the Committee Of Elections, in the contested election case from the Terri- tory of Kansas, be, and are hereby, empowered to send for personsiand papers, and to examine witnesses upon oath or affirmation. MINORITY REPORT. The undersigned, members of the Committee of Elections, not agreeing with the majority in their report on the reasons and grounds upon which they ask for the power to send for persons and papers in the Kansas election, beg leave to submit briefly their views of the question. Without entering inLo the uncertain region of vague rumor, and its undefined, indistinct, and contradictory statements, whether of individual or popular as- semblages, they prefer to submit to the House the facts of the case as they now stand before the committee. The memorial of Hon. A. H. Reeder to this body ; his notice to Hon. John W. Whitfield, the sitting delegate, informing him of his intention to contest his seat upon this floor ; the reply of the sitting delegate to that notice, under the act of Congress of the 19th February, 1851 ; the certificate of the sitting dele- gate's election, duly made out and signed by the governor of the Territory ; a written statement filed by the memorialist, setting forth certain allegations, which he wishes to be permitted to establish by proof; and a written reply by the sitting delegate to that statement, embrace all the papers and evidence now before the committee. And that the House may understand fully the nature and character of these papers, all of them will be appended to this report. These papers, with their references, make up the whole case as it now stands before the committee. And from the whole it appears abundantly evident to the minority that the memorialist looks to no object but to vacate the seat occu- pied by the sitting delegate, upon the assumption, which he wishes to be allowed to attempt to maintain by the testimony of witnesses to be brought from Kansas and elsewhere, that there is no legally-constituted government in Kansas Terri- tory. This is the object of the present application to send for persons and papers. It is true the memorialist alleges that several hundred illegal votes were cast for the sitting delegate at his election. That, however, does not make a case sufficient to displace him, unless it also be shown that the memorialist, or some other person, at the same election, received more legal votes than he did. This we consider a well-settled principle, by repeated decisions in this house. It is not enough to vacate the seat of a member to show that he received illegal votes ; but it must be made to appear, further, that some one else received a greater number of legal votes than he whose seat is contested. If the polls, for in- stance, in this case showed, as it is said, twenty-nine hundred votes for the sit- ting delegate, and if it be true, as asserted, that several hundred, or even twenty - H. Mis. Doc. 57 13 194 CONTESTED ELECTION CASES IN CONGEESS. eight hundred of them, were illegal, yet he would still have one hundred legal votes to go upon, and to hold his seat upon, unless it be shown that some other person received more than one hundred equally legal votes. But this is not pretended in this case. It is not even alleged. The memorialist sets up his claim by the denial of the legal authority under which the election of the sit- ting delegate was held, and by virtue of an election held at a different time, by promiscuous gatherings of the people, without even the forms of law, and in- deed, in open opposition to the only recognised laws of the territory. Nor has he produced or tendered any certificate, or evidence of any kind whatever, from any quarter, of his election, even in this irregular, disorderly, and confessedly illegal manner; so that his sole object, and that of the present application, seems to be to devolve upon the committee and the House an inquiry into the validity of the territorial law under which the sitting delegate was elected and returned, and mainly upon the grounds that the members composing the terri- torial legislature that passed the law were not themselves properly elected and returned. It is to establish this position that he wishes to have the committee empowered to send for persons and papers to Kansas. If it is the judgment of the House that we should enter into such an investigation, and take jurisdiction of that question — making ourselves the judges of the qualifications and election returns^ not only of our own members, but also of the territorial and State legislatures, which follows as a matter of course, then the conclusion to which the majority of the committee have come is right; but it will be assuming a jurisdiction which we do not believe properly belongs to us, and will be estab- lishing for the first time in our history a principle and a precedent of most dan- gerous tendency. If the House, however, should be of opinion that the inves- tigation now sought, for the objects stated, should be gone into at all, and that testimony should be taken on the allegations made, we submit to the House that the ends desired could be much better attained by sending out a commisiion to Kansas to take and collect such testimony as may be deemed pertinent, relevant, and competent for a full and impartial disclosure of the whole matter, than it can be by imposing this onerous duty upon the committee, to say nothing of, the delay, inconvenience, trouble, and almost utter impossibility of bring- ing all the witnesses that may be necessary to establish many important fact! and matters that may arise in such a norel, intricate, comprehensive, and un- heard-of proceeding. As the minority concur, in the main, in the general views of this case presented by the sitting delegate in the paper before alluded to which was submitted by him to the consideration of the committee, they deeir it proper, not only in justice to him and the people of Kansas, but for the bettei understanding of the whole matter, to submit it to the consideration of th( House also ; and they accordingly incorporate it as a part of their report. All of which is respectfully submitted. ALEXANDER H. STEPHENS. W. R. SMITH. M. OLIVER. Paper filed with the committee by J. W. Whitfield, and made part of minority report. To the Committee of Elections : The undersigned, having presented his certificate of election, duly made and signed b the governor of Kansas, and the oath of office having been administered to him as the deh gate of Kansas, desires to present to the committee the following statement, in reply to thi made by Governor Eeeder some days ago, a copy of which has been kindly furnished tr. undersigned by a member of the committee. In the first place, he respectfully submits 1 the committee that Governor Eeeder, by his own showing, has no right to be heard befoi the House of Eepresentatives in the contest he is now prosecuting for the seat occupied h the undersigned. He was not a candidate at the election at which the undersigned w; elected. This he does not allege or pretend. . Indeed, he was not a candidate at ai CONTESTED ELECTION CASES IN CONGRESS. 195 election authorized by any law. The extent of his claim to represent Kansas rests solely upon pretended votes cast for him at illegal gatherings of the people, acting in open hostility to the regularly constituted authorities of the Territory under their organic law. Nor does he even present any certificate or evidence of his having been chosen delegate by these revo- lutionary assemblages, who are attempting to set up a government in opposition to that established by Congress, so far as the undersigned is informed. A contest for a seat upon the floor of Congress, either for the place of senator, member, or delegate, can only be in- itiated and conducted by some person who, by his own showing, makes a case in which, if successful in removing a sitting member, he would be entitled to take and hold the seat thus vacated. The act of Congress of February 19, 1851, prescribing the mode of obtain- ing evidence in cases of contested elections, was passed to protect the House of Represent- atives against improper contests, and its provisions show that none should be entertained except such as we instituted by those who are in a condition to demand prima facie, at least, that they be admitted to the contested seat. The idea of contesting an election can have no other meaning than that the party contesting must have some legal claim of right to what he seeks to obtain. Governor Reeder having none, in this case, under any existing law, can- not, therefore, in any proper sense of the term, be recognized as a contestant before the House of Representatives. His position is somewhat analogous to that of any one who might choose .to petition the House to refuse the admission of a member who presents himself with a certificate without any claim that the petitioner is entitled to the seat. In all such cases, the undersigned submits, the House should unquestionably refuse to act npon the pe- tition or memorial either to refuse admission or to remove a member, unless the petition pre- sented some question affecting the constitutional qualifications of members — such as that the party against whom the movement was instituted had not the requisite qualifications of age, residence, or citizenship. Under such circumstances, the House doubtless would and ought to entertain the memorial, and, after investigation of the facts, act on it accordingly. But this would not be a contested election, in the proper sense of the term. To receive and investigate such a memorial would be merely the exercise of the power given to the Houao to judge of the qualifications of its members. This power is fully admitted by the under- signed. Nor does he deny the right of any person to raise such questions touching the con- stitutional qualifications of members, either by memorial or otherwise. The House itself, without any petition or memorial, might properly raise the question themselves touching the constitutional right of any member to hold his seat upon the floor. But Governor Reeder raises no such question touching the constitutional qualifications of the undersigned. His allegations are, that the law under which the undersigned was elected, and certified to by the governor as the duly chosen delegate for Kansas, was invalid and void ; because, as he affirms, the legislature that passed it were not properly elected themselves, and did not legis- late at a proper place. These allegations raise questions relating not to the qualifications of the undersigned under the Constitution, or the returns of his election to this House, but re- lating to the qualifications and returns of the election of the members of the legislature of the Territory of Kansas, as well as the legality of their proceedings. These are questions which the undersigned, in the second place, respectfully submits to the committee cannot properly be considered and decided by the House. Under the Constitu- tion of the United States, each house of Congress is made the sole judge of the qualification and election returns of its own members. So in the several State legislatures and territo- rial legislatures, each house is the sole and absolute ultimate judge on these matters in their respective organiaations. The law of the Territory under which the undersigned was elected he submits to the committee. It will be found on page 330 of the volume of the laws of Kansas published by authority. It was passed by the legislature organized in pursuance of an act of Congress, with which the committee and the country must be familiar. It bears upon its face the same verity, and has the same sanction of the regularly-constituted author- ities, as the public laws of any of the States, or any of the other Territories. The under- signed, therefore, insists that the House cannot properly inquire into the validity of this law, upon the ground that the legislature which passed it was not properly elected. That is a ques- tion which another tribunal has the sole power absolutely to determine. The judgments of all courts of competent jurisdiction are conclusive upon all matters embraced in them, and are binding upon all parties. -Their validity or invalidity cannot be inquired into by other courts. Every legislative body, in determining upon the qualifications and election returns of its members, acts in a judicial capacity." On such questions they sit as a court ; and as their jurisdiction is full and complete over the subject-matter, so their decision must bo final and conclusive. Otherwise the validity of any law of Congress might be assailed and in- . quiredlnto in any of our courts, upon the ground that some or all of the members consti- tuting one or the other branch of the law-making power were not properly elected. The House of Representatives, then, sitting as a court upon this matter now before them, can inquire into such facts relating to the validity of the laws of the Territory of Kansas, and such only, as any other court or judicial tribunal could inquire into upon the same point. As in determining upon the validity or constitutionality of a State law, they could not in- quire into the qualifications and election returns of the members composing the legislature that passed it, so they cannot do it in this instance. The undersigned, therefore, submits, that the testimony proposed to be taken by Governor Reeder is not competent to prove the statements made by him. 196 CONTESTED ELECTION CASES W CONGRESS. But, in the third place, the undersjgned does not wish, in what he has submitted, to bi understood as admitting, in the slightest degree, the correctness of the statements jof Gov- ernor feeder. On the contrary, fte most unequivocally and positively denies those state- ments touching the elections on the 30th of March of last year for members of the legislature of Kansas ; and he can but express his surprise and astonishment at the recklessness with which these broad, general, indefinite, unsupported, and utterly unfounded assertions haw been made. The committee need not be reminded that the memorialist in this case was at that time the governor of Kansas, appointed by the President of the United States undei the law organizing that government. The election of the 30th of March was held in pursu- ance of his own proclamation. It was conducted by persons appointed by himself. All the election districts were formed and laid but by himself. At each, three superintendents or judges were appointed by him to hold the election. The judges were each required, under oath prescribed by him, to swear that they would allow no one to vote whom they t id not honestly believe to be a qualified voter under the law of Congress. The oath was even more stringent than that; it contained these words: "We will reject the votes of all and every non-resident whom we believe to have come into the Territory for the purpose of voting ; that, in all cases where we are ignorant of the voter's right, we will require legal evidence thereof, by his own oath or otherwise ; that we will make a true and faithful return of the votes which shall be polled to the governor of said Territory." The returns of the election so ordered, and held under such stringent regulations, pre- scribed and imposed on the judges appointed by himself, were made to Trim as directed. For some reasons, the returns for nine members out of the twenty-six composing the house oi representatives, and three of the council out of the thirteen composing that body, were set aside, and new elections were ordered to take place in May. But all the others — ten of the thirteen members of the council, and seventeen of th« twentyrsix members of the house oi representatives — were, upon the returns of his own officers of the election in March, pro- nounced by himself to be duly elected, and received certificates from him as governor accord- ingly. A ver y l ar g e majority, therefore, of both branches of the legislature took their seats by virtue of his own commission, as duly returned and qualified members, chosen at the March election, without contest, cavil, or complaint from him or anybody else. Now, shall this man, who then, as governor of the Territory, certified to the proper election of these members, be permitted at this late day to deny the validity of his own solemn official act? To begin with his list of complaints : Shall he be permitted to say that the member elected from the first district was improperly returned, in consequence of 600 or 1,000 men from a neighboring State having voted illegally for him, in the face of his own official certificate to the contrary ? The undersigned refers the committee to the published journal of the house of representatives, which he submits to them, where it will be seen, on pages 1 and 19, that the member from the first district was commissioned by the governor himself as duly elected on the 30th of March. The same may be said of various other districts, set forth by him in the paper now under review. Suffice it, on this point, barely to add, that out of twenty-six members returned to the house at the election in March, he set aside the returns of but nine ; and out of the thirteen members of the council, he set aside the returns of but three. The places of these nine and three were filled by new elections in May. These facts Governor Eeeder cannot deny or gainsay. And the further fact that the house and council, in judging of the qualifications, and returns of their own members, respectively awarded the seats to those who had been rejected by him at the first election, cannot vary or change the merits oi the question. How, then, in the face of these facts, can it now be asserted that Kansas, on the 3()th of March, was overrun by non-residents — literally invaded by armed men who, by thousands, marched through the country with "martial music," and "artillery, at least in one instance," and taking possession of the polls, carried the election in almost every dis- trict against the will and in terror of the inhabitants and qualified voters ? If this were the case, where was Governor Eeeder that he did not call upon the President for assistance to drive back the invaders ? When he was setting aside the election of nine of the members oi the house and three of the council, for some failure in the officers to comply strictly with hit regulations in making the returns, why did he not set the whole of them aside for these un- heard-of outrages which he now proclaims to the country ? The undersigned submits thai the excuse which is now lamely presented for this gross dereliction of duty, if his statement be true, is nothing but a pretext upon which to ground an after-thought. That excuse is, that these facts were not known to him at the time he gave his certificate of election, on the 5th of April. . But how was it in July? The legislature, as the committee will see from tht journal, were not convened by him until then — three months aud upwards after the election. Is it probable, or even possible, that Kansas could have been overrun by a military force, and literally subjugated in March, without the governor's having heard of it by the 2d oi July? That was .the day on which the legislature. met. The houses organized as usual. Committees were appointed by each to wait upon and notify the governor as usual. And ir a reply, as will be seen on page 12 of the journal, the governor sent them a message coin- n encing in these words; CONTESTED ELECTION CASES IN CONGEESS. 197 " To the honorable the Council and House of Representatives of the Territory of Kansas : "Having been duly notified that your respective bodies have organized for the performance of your official functions, I herewith submit to you the usual executive communication rela- tive to the subjects of legislation, which universal and long-continued usage in analogous cases would seem to demand, although no express requirement of it is to be found in the act of Congress which has brought us into official existence and prescribed our several duties. The position which we occupy, and the solemn trust that is confided to us for organizing the laws and institutions and moulding the destinies of a new republic," &c. This is certainly quite sufficient to show that Governor Eeeder, on the 3d of July, did not consider the bodies of men he was then addressing as a set of border ruffians holding the im- portant and "solemn trust confided" to them as legislators for "the destinies of a new re- public," by no better right than that of seizing the polls by violence, and carrying an election by force, intimidation, fraud, and corruption. And who can believe, if what he now says was true touching the March election, that he would not by that time have known it ; and, knowing it, who believes he would have recognized them as a properly constituted legis- lative body? In this very message, as will bo seen, he invited the special attention of the legislature, constituted as it was, and he knowing all about its organization, to several mat- ters of legislation. Among other things, he said to them : ' ' The provisions for county courts and the officers connected with them, and the other officers of the Territory, which you may consider necessary ; the laws for regulating and holding elections ; the qualifications of voters," &c. — these were matters submitted to them for their appropriate action upon. But now, strange to say, the very law regulating elections, &c, under which the undersigned was elected to his present seat, passed by that very body, according to the special recommenda- tion of Governor Eeeder himself, is at this time alleged by him to be invalid and void, be- cause he says these same men whom he commissioned to sit as legislators, who were recog- nized as such by him, and who were urged by him to pass some law of the kind, were not properly elected, and had no proper authority to pass such a law. Is not Governor Eeeder estopped from these, his own official acts, from disputing the authority of the Kansas legis- lature to pass the law under which the undersigned was elected 7 But again : On the 6th July Governor Eeeder returned to the house in which it originated a bill moving the place of the sitting of the legislature for that session from Pawnee City to Shawnee Mission, with his veto. This will be seen on page 29 of the journal. This veto or disapproval of their action on that bill was not founded in the slightest degree upon any fact or matter upon the organiza- tion of the houses, or either of them ; he withheld his approval solely upon the ground of the want of power in the legislature, under the organic law, in his opinion, to change the place of holding the session. But both houses, however, passed the bill with more than a two-thirds vote, and it was accordingly carried over the veto. One other act~6f Governor Eeeder the undersigned wishes to call the attention of the com- mittee to. After the legislature had adjourned from Pawnee City to Shawnee Mission, as late as July 21 , he again addressed them in a communication, vetoing two other bills. This second veto message is important to be noted, in this : Up to that time, the 21st of July, nearly four months after the March election, the governor makes no mention or complaint of the election of the members of tho legislature, nor does he say anything against the pro- priety of the action of either the council or the house in the matter of the district elections set aside by him. This was all done before that message ; but he places his veto of the 21 st of July solely upon the ground, that the legislature had, in his opinion, no power to adjourn from Pawnee City to Shawnee Mission. Up to that time, let it be noted, then, not a word was heard from Governor Eeeder about the military invasion on the 30th of March before. Now, as Governor Eeeder had the absolute control of the election of the legislature, so far as the arrangement of the districts was concerned, and fixing the times and places for voting, the appointment of all the judges of election, and establishing the rules and regulations for the re- turns to be made to him ; and as he judged himself of the returns in each case, and commis- sioned as duly elected every member of both houses who took a seat in the organization, and recognized both branches as properly elected and organized by repeated messages ; and as his sole reason for vetoing their official andjegislative acts was his disagreement withthem as to their power to change the place of their sessions, the undersigned most respectfully again asks: Is he not estopped 7 and ought he not to be held to be estopped from resorting to this afterthought of setting up the pretext which he is now attempting, that the members of that legislature were not properly elected ? The whole merits of the case presented by Governor Eeeder against the validity of the law under which the undersigned was elected, according to his position on the 21st of July last, rests solely upon the fact of the adjourn- ment of the legislature from one place to another, as before stated, and as will be clearly per- ceived in his message of that date referred to. That point the undersigned will not argue before the committee. He refers them to the opinion of the supreme court of the Territory, to be found in the journal, page 1 of the appendix. The opinion there given the undersigned deems conclusive upon the poiut. Governor Eeeder himself must have become satisfied of the weakness of the position then assumed, and hence his attempt now made to reopen the closed question of the election returns of the members of the legislature. 198 CONTESTED ELECTION CASES IN CONGRESS. The undersigned, in this communication, does not wish to indulge in any comments upon the motives of Governor Eeeder, and his official misconduct which led to his removal. If he did, a reason might be assigned for the veto of the act moving the legislature from Pawnee City to Shawnee Mission stronger than that to be found in the logic of the argument. But the undersigned cannot permit what is said in the paper he is replying to, about the general character of the people of Kansas, to pass unnoticed. It is said by this man, who would he forced upon them by a vote of the House as their representative on the floor, though upon trial he was found to be unfit to be their governor, " that menace, intimidation, and improper influences are rife in the Territory, especially on the border. Men's rights are held in no re- gard, official authority commands no respect, and seems to have no restraining tendency or power, and the peace of the country hangs on a thread." "Trespasses, assaults, and mur- ders are openly committed, and no one thinks of appeal for redress to the law, because from that source no redress can be had." To whatever extent this statement may be true, Governor Eeeder ought best to know why it is so. Who but himself and those deluded victims who have linked their fortunes with his since his removal from office, setting themselves up against all law and order in the Terri- tory, have produced this state of things 1 Who but those under his influence — not bona fide settlers in Kansas, but emissaries of mischief sent by his co-laborers elsewhere for purposes of civil strife — are now engaged in insurrectionary movements, with a view to overthrow the constituted authorities of the Territory, and to break down the only government and system of laws to which the people can look for the protection of life, liberty, and property ? The actual residents of Kansas have a just appreciation of good government and a reverence fos law. If they have lately been unduly excited by matters originating more with others than themselves, they are not to be censured therefor, and particularly by those wicked projectors of the evils by which they are molested. No society or community can be altogether quiei when treason against its very existence is plotted in its bosom. Late information from Kansas, however, represents the state of the public mind there ae much less excited than it has been, and warrants the indulgence in the hope that the threat- ened conflict between the revolutionists and those who stand by the laws of the land will nol take place. Of one thing the undersigned feels confident — that nothing could do more tc leopard the peace of that Territory, and with it, perhaps, the peace of the whole Union, thar for the open and avowed opposers of the laws there — those who have declared an intentior to set up a system of their own in opposition to the government instituted under their organic law, of whom Governor Eeeder may be considered the chief — to receive aid and countenanc* in their fell purpose by men in position and authority elsewhere. JOHN W. WHITFIELD. March 4, 1856. Memorial of A. H. Reeder, contesting the seat of J. W. Whitfield, delegate from Kansas Territory. , To the honorable the House of Representatives of the United States: The memorial of the undersigned, on behalf of the qualified voters of the Territory o Kansas, and in his capacity of representative of said voters, as hereinafter stated, respectfull; represents : That he claims to be entitled to represent the said Territory in the thirty-fourth Congress as congressional delegate, to the exclusion and in lieu of Hon. J. W. Whitfield, the sittin] delegate, upon the following state of facts : The said J. W. Whitfield, as your memorialist is informed, claims to have been elected a a pretended election held on the first day of October last in said Territory, which said pre tended election your memorialist contends and proposes to show was absolutely void, bein without any valid law or the will of the people or qualified voters to authorize or to sup port it. That the law under which said pretended election was held emanated from a legislative as sembly which the people and qualified voters of said Territory protest and declare throug your memorialist were not elected by them, but imposed upon them by the force of superic numbers of non-residents, who could pass no law that would be binding on them, and whos election and action should not be sanctioned or recognized by this house, because they ai utterly inconsistent with the idea of republican government, and destructive of the plaines and most undeniable civil and political rights. That the said supposed election law was entirely nugatory and of no effect, because passe at an illegal and unauthorized place, where no valid legislation could be had ; and was voi in itself, and on its face, as containing provisions directly and materially violative of the ai of Congress to organize the said Territory. That said pretended electiou was not conducted even according to the forms and moc prescribed by the supposed law which purported to authorize it. That many hundreds of illegal votes were polled at said pretended election by non-residen and others. CONTESTED ELECTION CASES IN CONGRESS. 199 AncLyour memorialist excuses himself for the -want of specifications under the two objec- tions last above stated, by reason that he has been unable to obtain from the executive office in said Territory the necessary information, or any copies of the returns of said election ; that after several applications to the secretary of the Territory for certified copies of papers in his office had been neglected and evaded, the said secretary finally gave a positive refusal to furnish the copies demanded ; and for the further reason, that the said secretary of the Ter- ritory has withheld the copies of executive minutes for the year 1855, although the law re- quired him to furnish them semi- annually to the President of the United States ; which said copies, had they been forwarded, might have furnished the necessary information to your memorialist. And your memorialist further states, that he was duly elected by a large majority of the legal voters of the said Territory to the said office of delegate, at an election held on the ninth day of October, which he proposes to show was the only valid election held in the Territory for that purpose. A. H. REEDER, Washington City, February 12, 1856. Upon the preliminary question, when it came up in the House, Mr. Phelps said: It seems to me the committee are seeking to obtain a power from this house which -I think ought not to be exercised upon this occasion. The contestant, Mr. Reeder, who has pre- sented his memorial, claiming a seat upon the floor of this house as the delegate from the Territory of Kansas, alleges in his memorial that he does not claim to be elected by virtue of the laws enacted by the legislature of the Territory he seeks to represent. This position, in disregard of the laws he deliberately informs us he has assumed. By virtue of the act organizing the Territories of Kansas and Nebraska, the first election of a delegate was to be held under the order which might be issued by the governor, prescribing the time, place, and manner of holding such election. So much of that act has Deen executed. At the last session of Congress a gentleman appeared here as a delegate from that Territory, and was admitted as such upon this floor, without objection from any quarter. If it be that the Committee of Elections desire to inquire into the legality of the laws enacted by the territo- rial legislature, I say they are about to do that which was never before done — inquire into the legality of the laws enacted by the territorial legislature of Kansas. By what right, by what authority can they do it ? Those territorial laws were enacted, and they purport to have been enacted by a legislature duly elected in pursuance of a law of Congress, and the validity of those enactments, made in conformity with such law of Congress, cannot be rightfully contested in this house. They cannot be examined here for the purpose of deter- mining whether they were duly enacted or not. Their validity can only be determined by the courts. The requirements of the act of Congress having been complied with, the validity of those territorial laws cannot be impeached by Congress. Then why summon witnesses ? Why bring men two thousand miles in the dead of winter, when their testimony can avail nothing? *********** Mr. Stephens argued as follows: But, Mr. Speaker, when it is notorious that this law was passed by the legislature in Kansas, elected under the superintendency of officers appointed by the governor, of which we are bound to take public notice in all matters arising under it, and when it is proposed to invalidate this law, or any other such law, by oral testimony, should not this house require that the precise character of the testimony proposed to be adduced should be specially set forth, before we consent to give the power to a committee? The memorial of Governor Reeder barely states that this act was illegal and void, and the election under it void. • This is his case, as I understand iti But why illegal ? why void 1 Was not the legislature duly elected and legally organized ? This, though not stated, we all know is the ground upon which his contest rests. But can he raise that question? I have before me the journal of the Kansas legislature. The memorialist in the case was the governor of the Territory when the legislature that passed that act was elected and organ- ized, as stated by the gentleman from Missouri, [Mr. Phelps ;] and, whether rightly or not, he, the present memorialist, as governor, judged of the election returns, and recognized the legislature as duly and properly elected and organized. He assumed the power to judge of the election returns, and gave certificates of election to a large majority of the council and house of representatives. Many of the people of the Territory disputed his right to do it ; but, as I have said, whether rightly or not, he assumed the power, and exercised it, to judge of the election returns, and certified to the proper election of a large majority both in the house and legislative council. The election of every member, I believe, who took his seat at the organization, was certified to under the governor's own hand or by his direction. 200 CONTESTED ELECTION CASES IN CONGRESS. The organic law of the Territory, sir, gaye the legislature all legislative power, under the Constitution, not inconsistent with that organic law. Well, one of the first functions of legis- lative power is, to determine where the holy will meet. The organic law — the Kansas hill — said that Fort Leavenworth should be the temporary seat of government. The governor himself had changed that before the firs); session of the legislature. Congress afterwards gave them the absolute power to fix the permanent seat of government. The power to fix the permanent place, of course, includes the less power of sitting, until that place should be selected, just where they please, I do not intend to detain this house longer upon the argument of this preliminary question ; but Governor Reeder, in his message to the legislature, vetoing their bill changing the place of sitting, stakes his case of the illegality of the subsequent acts of that body solely upon the fact that they adjourned to a place which did not meet with his approval. He, in the mean fime, was removed. His successor in office, however, sanctioned the proceedings of the legislature at Shawnee Mission ; and there were passed all the laws, I believe, they now have for the protection of life, liberty, and property in Kansas. Mr. Dunn, (interrupting.) I would like to ask the gentleman a question before he takes his seat. I believe that the right of a member or delegate to a seat upon this floor is a right which belongs not to the representative or delegate, but a right which belongs to his con- stituents. Suppose, therefore, that any gentleman upon this floor should absolutely make an affidavit, or do any other act which in a court of justice might be regarded as an estoppel, short of an actual resignation, would that preclude his constituents from insisting upon his services in this hall ? Mr. Stephens. Very well. Suppose I grant it — admit what you say — we have been here two months and upwards, and we have heard no mortal man, except Governor Eeeder, questioning the right ot General Whitfield. When and where have the constituents of Gen- eral Whitfield spoken ? Have you heard a, mortal man of Kansas, except Reeder, complain of the legality and rightfulness of General Whitfield's election ? If you have, when and where 1 Mr. Dunn. The question which I present to the gentleman from Georgia is the question of the power of any man to estop himself of his duty to represent his constituents upon this floor. Mr. Stephens. The question was, whether anything Governor Reeder has done should jeopard the right of the constituents of General Whitfield or the people of the Territory of Kansas ? I say no ; but we are acting upon the memorial of A. H. Reeder, and I say A. H. Reeder is estopped. When General Whitfield's constituents speak, or the people of Kansas speak, and say that he is not their duly elected representative or delegate, I will give not only a respectful hearing to their memorial, but go into an investigation of it. If Governor Reeder has any constituents who . will say that they ought not to be estopped by his act, I will give them a like hearing and investigation. I will take the cases as they come. We are acting now upon the memorial of ex-Governor Reeder, and it is enough for me to show that he is estopped. Now, as I stated before, I do not intend to detain the House. I think that, if the House were in possession of all the facts which have caused this motion, they could vote more understandingly. I therefore move -that this resolution be recommitted to the Committee of Elections, with instructions to report the grounds upon which they make this application for extraordinary power, and the reasons which induce them to do it. Mr. Campbell spoke as follows : * * * I believe that where a statute is founded in fraud, there is no power on earth that can give vitality or validity to it. And for the pur- pose, Mr. Speaker, of showing this house that Congress has committed itself to the principle which I assert — the right to repeal a territorial law tainted with fraud — I need go no further back than to the last session. I will show that this power has been exercised by nearly every member on the opposition side of the chamber. It will be recollected that during last Con- gress a land grant to the Territory of Minnesota, of eight hundred thousand acres, was passed. A committee of investigation was raised. The result of the examination was, that the grant was declared to have been fraudulently procured. Subsequently, there were other frauds exposed to the judiciary branch of the government in relation to this land grant. It then became necessary, in order to defeat the fraud, that a certain charter, which had been granted by the territorial legislature of Minnesota, should be repealed. It was not alleged, I believe, or proven in the course of the examination, that the passage of the act conferring this charter had been fraudulently procured ; but still, with a view to prevent the execution of a fraud incidentally connected with the act of the territorial legislature, a resolution was unanimously reported to this house by the Committee on the Judiciary, at the last session, disapproving and disaffirming the act of the legislative assembly of the Territory of Minne- sota, •entitled "An act to incorporate the Minnesota and Northwestern Railroad Company." On the final vote that was taken on that resolution, one hundred and sixteen members of this house voted to repeal the act of the territorial legislature, and sixteen against it. Nearly all the friends of the Nebraska bill voted for the resolution, thereby asserting the power of Congress to disaffirm and repeal an act of the territorial legislature. The honorable gentle- man from Georgia [Mr. Stephens] did not vote. How he would have voted, had he been in the hall at the time, I do not know. But I refer to this vote for the purpose of showing the CONTESTED ELECTION CASES IN CONGRESS. 201 members on the opposite side of the House that they are committed to the principle which I have affirmed here — namely, the right of this body to repeal any legislative act of the Terri- tory of Kansas, or of any other Territory, if there be proof that the act is founded in fraud. Mr. Bingham argued that the House is to judge of the elections, as well as of the qualifi- cations of its members. If the House had no power to judge of the elections of its members, there might be some ground for the assertion that they could not go behind the fact of the election to inquire into it. But, inasmuch as the validity of the election of the sitting dele- gate depends upon the rightful exercise of the legislative power in the Territory, by the legis- lative assembly, we have as much power to ascertain what that assembly was, by whom chosen, and how it exercised its power, as we have to inquire into the mode and manner in which the election of the first Monday of October last was conducted. The minority of that committee seem to hold the opinion, that the contestant has no color of claim here, because he was chosen at an election not authorized by a territorial statute. Is not this begging the whole question, and an implied concession of the very point in dispute ? If, then, a statute, a legal territorial statute, was essential to this Kansas delegate election, why is it not as com- petent for this house to inquire whether there was a body authorized to enact the statute, as to inquire if the statute had been enacted 1 Both inquiries are necessary to enable the House "to- judge of the election." But we are told the House must take notice of the statutes. Certainly not, when it is denied that they are valid statutes, and it is charged, and in issue, that there was no legally constituted legislative body to enact the statutes. But we are again told that every legislative body is the exclusive judge of the qualifications of its own members, and that its judgment is final. Mr. Davis, of Maryland. It has been argued, with great strength and irresistible authority, that no court could take into consideration the questions which we are now called on to decide by the majority of the Committee of Elections. That is to say, you are called on to investigate the right of Mr. Whitfield to a seat upon this floor, not because of frauds in the election at which he was elected — not because of the violence which was there perpetrated — not because of the illegal votes which were then cast — not because of the honest voters who were driven away from those polls ; but because the law under which that election was held was invalid — invalid beeause the members of the legislature were not properly elected; and that the legislature was not properly elected because of the violence and frauds committed in thai election. The honorable gentleman before me [Mr. Walker] argued with irresistible logic, and it was argued with equal force by the honorable gentleman from Georgia, [Mr. Stephens,] that no court could inquire into the legality of the organization of any legislative body ; and from that they sought to deduce the argument that this House could not inquire into it. Now,Vir, while the principle is undoubtedly true, I may be permitted to doubt whether the consequence must necessarily follow. It has been said that this has been repeatedly decided not to be a judicial question ; and so it undoubtedly is not a judicial question. Courts of justice assume the existence of the legislative body ; they assume the existence of the law. They take the authority of the body that passed the law from some other power in the State. The constitution of the legislature is therefore a thing that never has been, and never can properly be, made a matter of judicial investigation. The laws are taken by the courts as the expressed will of some body holding authority in fact, which they are not at liberty to question ; and the recognition, of the existence of the legislature is made by some other functionary vested with jurisdiction over that subject. The legality of a legis- lative body can never be made a matter of original proof in the court of justice. The court accepts on that point the recognition of the political authority, and does not look beyond the decision into the sufficiency or insufficiency of the grounds for it. All judicial functions proceed upon the assumption that there is a legislature in existence. Its functions only begin when that previous question has been decided. It is for that reason that no court of justice ever has raised — no court of justice ever can raise, the question that is sought to be raised here. But does it follow that this House can decide that question ? There are a great many questions that a judicial tribunal cannot decide, and one of them is that touching the validity of the elections in virtue of which gentlemen around me hold their seats in this house. It cannot be passed upon by any judicial tribunal so as to bind anybody at all upon that question. The reason is, that the election for this house is not and cannot be made a judi- cial question. That is a point behind and beyond the point at which the powers of the judi- ciary start. It lies in the circle of the political functions of tke State. It is one of those questions which must be decided before any question can be decided by the judiciary, before any matter can take its start which is to be decided under the municipal law before the courts. But this house can decide, and does decide, as a first resort and as a last resort, upon the. validity of the election of its own members. It does not follow, therefore, because the courts cannot decide a question, that this house cannot decide it. The House first adopted the resolution reported from the committee ; then reconsidered that vote, and sent it, with an amendment, back to the committee. 202 CONTESTED ELECTION CASES IN CONGRESS. The committee reported again the original resolution, and the House adopted an amendment to it offered by Mr. Dunn, of Indiana, which was as follows : Resolved, That a committee of three of the members of this house, to be appointed by the Speaker, shall proceed to inquire into and collect evidence in regard to the troubles in Kan- sas generally, and particularly in regard to any fraud or force attempted or practiced in reference to any of the elections which have taken place in said Territory, either under the law organizing said Territory, or under any pretended law which may be alleged to have taken effect therein since. That they shall fully investigate and take proof of all violent and tumultuous proceedings in said Territory, at any time since the passage of the Kansas- Nebraska act, whether engaged in by residents of said Territory, or by any person or per- sons from elsewhere going into said Territory, and doing, or encouraging others to do, any act of violence or public disturbance against the laws of the United States, or the rights, peace, and safety of the residents of said Territory ; and for that purpose said committee shall have full power to send for and examine, and take copies of all such papers, public records and proceedings, as in their judgment will be useful in the premises ; and, also, to send for persons, and examine them on oath, or affirmation, as to matters within their knowledge, touching the matters of said investigation ; and said committee, by their chair- man, shall have power to administer all necessary oaths or affirmations connected with their aforesaid duties. Resolved further, That said committee may hold their investigations at such places and times as to them may seem advisable, and that they have leave of absence from the duties of this house until they shall have completed such investigation. That they be authorized to employ one or more clerks, and one or more assistant sergeants-at-arms, to aid them in their investigations ; and may administer to them an oath or affirmation faithfully to perform the duties assigned to them, respectively, and to keep secret all matters which may come to their knowledge touching such investigation as said committee shall direct, until the report of the same shall be submitted to this house ; and said committee may discharge any such clerk, or assistant sergeant-at-arms, for neglect of duty or disregard of instructions in the premises, and employ others under like regulations. Resolved further, That if any person shall in any manner obstruct or hinder said committee, or attempt so to do, in their said investigation, or shall refuse to attend on said committee, and to give evidence when summoned for that purpose, or shall refuse to produce any paper, book, public record, or proceeding in their possession or control, to said committee when so required, or shall make any disturbance where said committee is holding their sittings, said committee may, if they see fit, cause any and every such person to be arrested by said assistant sergeant-at-arms, and brought before this house to be dealt with as for a contempt. Resolved, further, That for the purpose of defraying the expenses of said commission, there be, and hereby is, appropriated the sum of $10,000, to be paid out of the contingent fund of this house. Resolved further, That the President of the United States be, and is hereby, requested to furnish to said committee, should they be met with any serious opposition by bodies of law less men, in the discharge of their duties aforesaid, such aid from any military force as may at the time be convenient to them, as may be necessary to remove such opposition, and enable said committee without molestation to proceed with their labors. * Resolved further, That when said committee shall have completed said investigation, they report all the evidence so collected to this house. The vote on the adoption of the report was, ayes 101, noes 93. Messrs. Sherman, Howard, and Oliver were appointed a special committee, under the above resolutions. They proceeded to Kansas and conducted the investigation under the order of the House, submitting a report, which was re- ferred to the Committee of Elections. The committee then made a second and final report upon the case, which follows : Your committee believe that all the conclusions as to matters of fact arrived at by the said special committee are clearly and incontrovertibly established by the testimony in the case. Among those conclusions, applicable to the question of the seat in controversy between J. W. Whitfield and A. H. Eeeder, are the following : That each election in the Territory, held under the organic or alleged territorial law, 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 the alleged territorial legislature was an illegally constituted body, and had no power to pass valid laws, and their enactments are, therefore, null and void. ■CONTESTED ELECTION CASES IN CONGRESS. 203 That the election under which the sitting delegate, John W. Whitfield, holds his seat was not held in pursuance of any valid law, and that it should be regarded, only as the expression of the choice of those resident citizens who voted for him. That the election under which the contesting delegate, Andrew H. Reeder, claims his seat was not held in pursuance of law, and that it should be regarded only as the expression of the resident citizens who voted for him. \ That Andrew H. Reeder received a greater number of votes of resident citizens than John W. Whitfield, for delegate. 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. In view of these conclusions, that the election of J. W. Whitfield was without any authority of law, and that he comes here as the choice of only a minority of the resident citizens of Kansas, your committee decide that he is not entitled to the seat which he holds as delegate from the Territory of Kansas. The election under which A. H. Reeder claims was equally without authority of law ; hut, inasmuch as he comes here as the choice of a much larger number of the resident citizens of Kansas than the number of those who voted for J. W. Whitfield, your committee recommend that he be admitted to a seat as dele- gate from the Territory of Kansas. The office of a delegate from a Territory is not created by the Constitution. Such delegates are not members of the House, and have no votes in its delibe- rations. They are received as a matter of favor — as organs through whom may be communicated the opinions and wishes of the people of the Territories. It is competent for the House — and this power has been often exercised — to admit private parties to be beard before it by counsel. It must be equally competent for the House, at its discretion, to admit any person to speak in behalf of the people of the Territories. It may, if it sees fit, admit more than one such person from each Territory. Under ordinary circumstances, no case calling for the exercise of this discretionary power will arise. In all the laws creating Territories provision is made for the election of delegates to Congress - r and the people of the Territories, having the opportunity to be heard through such delegates, and by memorial and petition under the general provisions of the Constitution, could not ask to be heard through any other agency. In the present case, however, the people of the Territory of Kansas have been deprived of the power to make a strictly legal election of a delegate by an invasion from Missouri, which subverted their territorial government, and annihilated its legislative power. To deny to Kansas the right to be hear'd through the choice of its resident citizens, merely because that choice was manifested outside of legal forms, and necessarily so, because the law-making power was destroyed by foreign violence, is to deny to Kansas the right to be heard at all on the floor of the House. Your committee cannot recommend to the House to declare that the seat of the delegate from Kansas is vacant, and to order that a new election be held. The objections to such a recommendation are obvious 'and insuperable. No law exists in Kansas for the election of a delegate to Congress, the provision on that subject in the organic law having reference only to the first election ; and no territorial law for such an election can be enacted, for the plain reason that the law-making power of that Territory has been subverted by usurpation. To send this case back to the people of Kansas for a new election is merely to invite a repetition of the scenes of last October ; and it is quite certain that, at the next session of Congress, some person would again appear, claiming a new election under territorial laws which your committee regard as nullities ; while some other person would again appear, claiming a new election, as the choice, outside of the laws, of a majority of the people. It is undoubtedly competent for the Congress of the United States to enact a law under which a legal election of a delegate from Kansas could be effected. 204 CONTES'tED ELECTION CASES IN CONGRESS. Should such a law be enacted, and should a delegate elected under it appear here, your committee cannot doubt that he should be, and would be, admitted to a seat. But, in the' mean time, arid until such an election is ordered and held, your committee are of opinion that Kansas is entitled to be heard on the floor of the House by the agent chosen by a majority of its citizens. Your committee, therefore, recommend the adoption of the following resolu- tions : Resolved, That John W. Whitfield is not entitled to a seat in this House as a delegate from the Territory of Kansas. Resolved, That Andrew H. Eeeder be admitted to a seat on this floor as a delegate from the Territory of Kansas. The course of the argument against the final report is fairly stated by Mr. Whitfield in an opening paragraph of his speech : I have presented myself here, under the authority of the Territory of Kansas, sustained by all the sovereignty she possesses under the law of her organization. Her territorial seal is the witness of my rights ; and she has employed it by virtue of the power conferred upon her by the Congress of the United States. I do not claim for that seal the unquestionable validity that belongs to those employed by the States of the Union, but I do claim for it that character and dignity that shall secure it against contempt, and against being trampled upon by the reckless violence of party. It represents the authority of a people who, by an existing law passed pursuant to all the forms of the Constitution, have been made sovereign over their own domestic affairs ; and I have a right to demand that it shall not be spurned with indignity, and that they shall not be repulsed without a fair, full, and proper hearing. By virtue of the credentials thus furnished me, I have been admitted to my present position as a delegate upon this floor, and the oath of office has been administered to me. Being, therefore, fully clothed with all the power that belongs to this position, I shall proceed to the task of showing, without further preface, that I have been elected according to the terms of the act of Congress organizing the Territory of Kansas, and the laws of the terri- torial legislature properly and legally passed pursuant to that act, and am entitled to remain where I am during the existence of the present Congress. And, in the progress of this inquiry, I shall insist that there has yet been no proper and legal challenge of my right, arising out of the fact that, as I had no competitor, there is nobody in a condition to chal- lenge it ; that the gentleman who claims to have this right does not legally possess_ it, but that he is here as a volunteer, without any such legal authority as should be recognized by this house. If I shall succeed in showing that I was voted for at an election held pursuant to the territorial law, and that, all the authority he possesses is derived from popular assem- blages of the people held without law, then I shall have placed myself in a position before this house and the country, from which faction, in its utmost madness, will find it hard to drive me. The first resolution, declaring Mr. Whitfield not entitled to the seat, was agreed to by the House, (August 4, 1856,) ayes, 110 ; nays, 92. The second resolution was rejected — ayes, 88; nays, 113. Note. — The debate upon this case was prolonged. It will be found in vols. 32 and 33 Congressional Globe. An index to the speeches is on page 36, vol. 32, and page 5, vol. 33. THIETY-FOUETH CONGRESS, FIRST SESSION. Beivnet vs. Chapman, of Nebraska, The territorial canvassers and governor rejected the votes of certain counties because the county register forwarded the poll-books to the secretary of the Territory, while the law re- quired him to keep them there to be canvassed by the probate judge and three disinterested householders, and an abstract of the votes sent to the office of the secretary of the Territory. The committee held that this informality or illegality shall not cause the votes to be re- jected. The House refused to adopt the conclusions of the committee. The vote of Wash- ington county was rejected by the territorial canvassers because the abstracts from two pre- cincts contained certificates of the clerks that no poll-books were returned to them. The committee held that this did not vitiate the election. The committee held that trespassers on an Indian reservation have the right to vote. The House adopted the resolution submit- ted by the minority of the committee. CONTESTED ELECTION CASES IN CONGRESS. 205 IN THE HOUSE OF REPRESENTATIVES, April 18, 1856. Mr. Watson, from the Committee of Ejections, made the following report : The contestant allege?, as the ground upon which he claims the seat, that he received a majority of all the votes cast at the election, and that the certificate of election was wrongfully withheld from him and given to his opponent by the governor and territorial canvassers. To this the sitting delegate replies, that the certificate was rightfully awarded to him by the governor and canvassers, and that, although the contestant has a nominal majority, yet the legal majority is in favor of the sitting delegate, who is, therefore, entitled to retain the seat. Your committee find, on examination, that a count of all the votes cast at the election gives the contestant a plurality of thirteen votes over the sitting dele- gate. This entitles the contestant to the seat, unless the effort made to im- peach a portion of the vote has been successful. The attempted impeachment is directed against nearly one-half of the vote cast, and quite oneThalf of the counties in the Territory, and, if successful, would set aside the plurality of the contestant and give the sitting delegare a majority over all persons voted for. The territorial canvassers and governor did reject the votes of these counties, and it is necessary to examine them here somewhat in detail. They are — 1st. Otoe. — The vote of this county was set aside for the same reasons tha,t are urged against it here. The poll-books of the precipcts were forwarded by the county register to the office of the Secretary of the Territory. It is claimed that they should have been kept in the office of the county register, there can- vassed by the probate judge and three disinterested householders chosen by him, and an abstract sent to the office of the Secretary of the Territory by the county register. In support of this, sections 14, 15, and 18 of an act of the territorial legislators^ are cited. Section 14 is in these words: At the close of the canvass one of the poll-books, and all of the ballots east, shall be de- livered to one of the judges for safekeeping; and the other poll- book, securely enclosed and sealed, shall be within five days thereafter transmitted to the county clerk. Section 15 is in these words : On the reception of the returns by the clerk, the judge of probate, together with three disinterested householders chosen by him, shall open said returns, and make abstracts of th« votes cast for each several officer at said election. Section 18 contains, among other things, these provisions: The clerk shall transmit by mail or special messenger abstracts of the votes cast for eaph territorial officer, * * * duly certified by said clerk, to the secretary of the Territory, who, together with two territorial officers, shall proceed within ten days after re- ceiving said abstracts * * * to canvass said votes, * * and the per- sons having the highest number of votes for the respective offices, and those duly certified, shall be declared uy the governor duly elected, and he shall proceed to commission the same accordingly. Your committee do not think these provisions of the statute invalidate the vote of Otoe county. To have followed the statute strictly, the clerk would have retained the poll-books from the precincts in his office, and have caused them to be canvassed, and an abstract to have been made by the probate judge and three householders ; and that abstract he would have forwarded by mail or special messenger to the office of the secretary of the Territory. But it will scarcely be claimed that these provisions are anything more than directory. There is nothing in the case impeaching the integrity of the vote, or the genu- ineness of the poll-books. The objection is technical and based on strict law. The poll-books, though tacitly admitted to have been genuine and fairly made 206 CONTESTED ELECTION CASES IN CONGRESS. out, were not deposited in the office of the county clerk. The territorial can- vassers had no abstract but the original poll-books to canvass from. Your committee have not been able to perceive the force of the reasoning based upon these objections. In fact, the territorial canvassers had more certairr evidence before them than an abstract would have furnished. The poll-books were original papers, and abstracts copies, not of their letter, but substance. The poll-books were, there- fore, as much superior to abstracts as originals are superior to copies. It has been strongly urged that the canvassing by the probate judge and householders is an additional attestation to the returns, and for that reason matter of sub- stance. This may be so; but it is not apparent to us. The term "canvass," as used in the statute in question, means nothing more than count. The can- vassers count the votes, as certified to in the poll-books, and embody in a single abstract the vote of the entire county for each candidate. The provision is one simply of convenience. It adds no solemnity, no security to the proceeding. The judge and householders attest nothing but their own count. In that they may be mistaken ; the poll-books cannot be. How, then, can it be claimed that this count has any substantive or separate value ? In the count there can be no revision. The judge and householders have power to reject nothing — to add nothing. They can correct no errors. Their count and abstract are based on what is returned to them through the clerk by the election officers. It seems to us that the objection resolves itself into this : That the territorial canvassers had better evidence before them than the law contemplated, and for that reason the vote must be rejected. We cannot admit the force of the reasoning, and without hesitation admit and count the vote of the county. 2d. Dakota county. — The vote of this county was rejected by the territo- rial canvassers upon the same ground which we have considered insufficient in the case of Otoe county. The conteitant now alleges a different ground of objection, viz : that the return from Dakota county consists of a return from Omaha City precinct, whereas the precinct named in the governor's proclamation is Dakota precinct. It is not necessary to make a decision upon this point, in- asmuch as the contestant appears to have a plurality, even if the majority against him in Dakota county is included. 3d. The vote of Washington county was also rejected. In this county there are three precincts — De Soto, Cuming City, and Fort Calhoun. The register made return to the office of secretary of the Territory of an abstract of the votes cast in the county ; and, accompanying that abstract, he sent what he certified to be abstracts of the votes in the several precincts. Accompanying the abstracts from De Soto and Cuming City were . certificates of the clerks, setting forth the fact that no poll-books were returned to the clerk ; that from Fort Calhoun stating that no poll-book had been returned. These certificates accompanying the pre- cinct abstracts are relied on to establish the proposition that no poll-hooks were returned from the precincts of De Soto and Cuming City. We are asked to follow the example of the territorial canvassers, and reject the whole vote of the county upon this showing. A part of the return made by the clerk — the county ahstract — would have been in strict conformity with the law, and terri- torial canvassers could not have rejected it. Did the clerk's certificates to the precinct abstracts impeach his certified abstract of the county vote 1 We think not. The county abstract, under the law, was made by the probate judge and three disinterested householders ; and all the relation that the clerk bore to it was that of official custodian. He certified it to the office of the secretary of the Territory, because it was a paper belonging to his office. This is all the power conferred upon the clerk by the act regulating elections. He can give copies, and certify them, of such papers as he has the official custody of, but his cer- tificate of a fact is of no value as evidence. In other words, it is not evidence. CONTESTED ELECTION CASES IN CONGRESS. 207' If the preciact officers neglect or refuse to return a poll-book to the county ielerk's office, and return a tally-sheet or abstract, or send up the ballots, it is a fact to be established by some other kind of evidence than a certificate from the clerk of the county. Until the poll-books were sent in, the probate judge might have refused to canvass the precinct votes ; but of that, he, and not the clerk, was the judge. When he did canvass and make his county abstract, it became the duty of the clerk to certify that, and that alone, and transmit it to the sec- retary of the Territory. That being done, his duty was performed, and his power over the subject ceased. His certificates of the non-delivery of the pre- cinct poll-books were outside of his powers, and we reject them. But as the contestant has argued as though the fact of the non-return of poll- books was proved, we will see if that vitiates the election. We think the fact is established sufficiently that a poll-book was kept at De Soto precinct, and deposited with the proper precinct officer. This being done, suppose we admit that nothing more than an abstract of the votes, as canvassed in the precinct, was sent to the clerk's office. The law requires this abstract to be sent there indorsed on the poll-book. The poll-book is nothing more than a list of the persons voting, and the whole omission is to return a list of voters for the precinct. Will it be seriously claimed that an omission by an officer to send a list of voters from a precinct, or from two precincts, as in this case, will disfranchise a whole county ? We think not ; and in conformity with precedents heretofore es- tablished, and in conformity with the principles of our own decision in the case of the contested seat from Maine, we count the vote. 4th. Richardson and Pawnee counties. — The vote of these counties was re- jected by the territorial canvassers, and we are asked to follow their example. The sitting delegate has filed with us copies of two newspapers, for the purpose of showing the reasons which controlled the judgment of the territorial can- vassers. If they express any reasons, they are these": that there were some illegal votes polled in the county, and the county canvassers, the probate judge, and householders, saw fit, for that reason, to refuse to give a candidate for county treasurer a certificate of election. This was regarded as a precedent for rejecting the vote of the county. It is further claimed, that if we will not set aside the whole vote, we must set aside a part of it. It is claimed that some twenty persons voted who were residing on an Indian reservation known as the " Half-breed tract." If the returns from the county show anything, it is that the county canvassers refused to count the votes of settlers on the " Half-breed tract." They so certify, at least ; and al- though we do not express the opinion that their certificate does or can prove anything on that subject, yet it is all the proof we have on the point. The sitting delegate assures us that these votes were counted, because in the return of votes for county officers the canvassers say in a note that " no certificate was given for treasurer, A. Shelley having received the voles on the half-breed land." This, we think, proves nothing on the subject of counting these votes for del- egate to this body. These votes may have been counted, but certainly the ev- idence does not say so. In every instance where the evidence speaks on the subject, it bears testimony against their having been counted. The returns say these votes were deducted from the poll for delegate to Congress ; and again, the returns say that the county canvassers would not recognize the election of a county treasurer because he received them. The canvassers seem to have re- fused to recognize these votes anywhere, and to have expelled them wherever met with. But if we admit the supposition that these votes, which, it is agreed, were cast for the contestant, were counted for him, and are included in and form a part of the aggregate vote for him in the abstract from Richardson county, does it aid the sitting delegate ? We think not. We think the settlers on this res- ervation had a right to vote, and to vote for the contestant. 208 CONTESTED ELECTION CASES IN CONGRESS. It is claimed that the reservation is not in any election precinct, and that by the tenth section of the act regulating elections, voters can exercise the elective franchise in the precinct where they reside, and nowhere else. We will not say that voters can exercise the right of suffrage in any place except the precinct of their residence, but this case certainly does not show this reservation to be outside of any election precinct. It may be that it is not included in any elec- tion precinct, but the fact is not shown. The only evidence bearing on the point is the governor's proclamation. In that, he says that the precincts in Richardson county are Archer and Salem. He does not define their bound- aries, but says they shall be defined in the notices of the probate judges. We are not shown the notices of the judges, and cannot say how they bounded these two precinets. It seems to be an admitted fact, that all this reservation lies in Richardson county. But it is not alluded to in the governor's proclama- tion, and no terms of exclusion are used that apply to it. The next objection is, that under the law of Congress, approved 30th of June, 1834, to regulate trade and intercourse with the Indian tribes, &c, which is in force in the Territory, these settlers could not become inhabitants of the reservation — that they were trespassers upon Indian lands. We will not deny the proposition that they were trespassers, yet they were inhabitants of the Territory, and, for aught that appears, they were citizens of the United States. Holding this relation to the government, they were voters, and did not forfeit their rights as voters by the commission of a trespass. It is said that they were excluded by the governor from the census, aud not allowed to form any part of the basis of the apportionment in his proclamation. We understand this to be true, but no consequences follow the act of exclusion. The governor cannot give to or take from the inhabitants of the Territory the least of all their civil rights. The right of suffrage, with all other civil and political rights, they hold by the law of the land, and not by the grace of any functionary, high or low. We cannot, for this reason, deny to these people the right to vote. In fact, when objection is raised to the exercise of the right of suffrage, we hold the objector bound to show the disability, and we give to the voter the benefit of all presumptions and legal intendments. Another objection, though it seems to be abandoned in argument, was origi- nally taken to these votes. It is, that this reservation forms no part of Nebraska. It was claimed that the law organizing the Territory excluded it. The pro- vision of the act relied on is in these words : That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with any Indian tribe, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any State or Territory. It is only necessary to remark on this point, that the half-breed reservation is not of the character of the Indian reservations provided for by the clause of the act we have quoted. It is a tract of land set apart by the treaty of July 15, 1830, entered into between the United States and certain Indian tribes at Prairie du Ohien. In the tenth article of that treaty the Omahas, Iowas, and Otoes, for themselves, and in behalf of the Yaneton and Santee bands of the Sioux, with the consent and by agreement with the United States, set apart these lands as a provision for their half-breeds, who are to "be suffered to oc- cupy" the same, "holding it in the same manner, and by the same title, that other Indian titles are held." Besides these provisions, the President of the United States had the power conferred on him to assign portions of these lands to any of the individual half-breeds, not exceeding a section to an individual, to be held in fee simple. This is only a grant of the land itself to individuals, and not a grant to them as a band or tribe. There is no grant or acknowledg- ment of sovereignty in the article. There is no stipulation in any part of the CONTESTED ELECTION CASES IN CONGRESS. 209 treaty that these lands shall not be included in a State or Territory. We find in this treaty no foundation for this objection. The next objection raised to counting the vote of these counties for the con- testant is, that the clerk, in the abstract sent to the office of the secretary of the Territory, stated the votes as given to Henri P. Bennet, and not to Hiram P. Bennet, the contestant. This objection would be formidable if that abstract was all the evidence on the point. But it is not. A certified copy is exhibited to us from the election-book of the county, which shows that in the abstract made by the county canvassers and recorded in the election-book, the votes are stated to have been given to H. P. Bennet. In addition to this, the sitting delegate, in his answer, admits the votes to have been given to the contestant. In this state of the case, without referring to the parol evidence taken by the contestant, we find no difficulty in reaching the conclusion that the return sent to the secretary's office was made to read Henri P. Bennet by mistake. We therefore overrule this objection to the return from the counties of Richardson and Pawnee. Your committee, therefore, submit the following resolutions : Resolved, That Bird B. Chapman is not entitled to a seat in this body as delegate from the Territory of Nebraska. Resolved, That Hiram P. Bennet is entitled to a seat in this body as such delegate. MINORITY REPORT. r May 13, 1856. Mr. Stephens, from the Committee of Elections, made the following report: The undersigned, member of the Committee of Elections, not having been pre- sent when the case of Hiram P. Bennet, contesting the seat of Bird B. Chapman, the sitting delegate from the Territory of Nebraska, was acted upon by the committee, and not concurring with them in the conclusions to which they arrived in their report, asks leave to submit, on his part, the following statement of the facts of the case as he understands them : The election in the Territory of Nebraska for a delegate to Congress was held on the 6th day of November, 1855, in pursuance of a proclamation of the governor, under a territorial law. There are in that Territory ten counties, viz : Richardson, Pawnee, Nemaha, Otoe, Cass, Douglas, Washington, Burt, Dakota, and Dodge. In these counties election precincts, or places for voting, were established by a proclamation of the governor issued 15th day of October, 1855, as follows, viz : In the county of Richardson, at Archer and Salem ; in Pawnee, at Pawnee ; in Nemaha, at Brownville ; ' in Otoe, at Nebraska City, Bennet's Ferry, and Wyoming ; in Cass, at Rock Bluff and Plattsmouth ; in Douglas, at La Platte, Belleview, Omaha City, and Florence ; in Washington, at Port Calhoun, De Soto, and Cuming ; in Burt, at Tekamah ; in Dodge, at Fontanelle and Elkhorn City ; in Dakota, at Dakota City. And, in the same proclama- tion, the probate "judges in the several counties," if they had "failed or omitted to discharge the duties required of them by the sixth section of an act regulating elections, approved March 16, 1855, were required forthwith to cause a notice to be posted up in three of the most public places in the several pre- cincts, within their respective counties, clearly defining the boundaries and designating the place of holding the election in each precinct," &c, " and also to do and perform all other acts enjoined by said act regulating elections." H. Mis. Doc. 57 14 210 CONTESTED ELECTION CASES IN CONGRESS. The territorial act of March 16, 1855, contains the following clauses : Sec. 4. The' judges of probate shall respectively, at least forty days before the general election, appoint three judges of election, having the qualification of electors, at each election precinct, and shall cause written notice of said appointment to be given to said judges at least ten days previous to such election. Sec. 5. The said judges shall choose two clerks having similar qualifications as them- selves, who, together with the said judges, shall constitute the hoard of election, and the said board shall hold their offices until their successors are appointed; and in case of any vacancy, the same shall be filled by the remaining members of the.board. Sec. 6. The several judges of probate shall, at least thirty day's previous to any general election, cause three written notices thereof for each election precinct to be posted up in each election precinct, which notice shall contain a list of all the officers to be balloted for at said election, and in case of an especial election the above notice shall be given eight days previous to such election. / On the 23d of November, 1855, the returns for all the counties were opened by the board of territorial canvassers under the law, who made the following report of the state of the polls in the counties named : DELEGATE TO CONGRESS. ■ i' •s /B " PI ■ ^ '& a a 3 County. PQ PM o 1 J 02 PQ M 6B-, 1 3 • pq •a • s a OS i ■a a at o ►•s 1" W to "3 o "3 3 H5 259 57 33 17 123 56 94 4 1 7 4 Burt 14 19 1 u 380 292 7 5 4 i 1 The other counties were rejected for informalities and irregularities which will be noticed hereafter in detail. By the returns above, from which it appears that the sitting delegate has a majority of eighty-eight votes, they reported his election to the governor of the Territory, who thereupon awarded him a certificate of election ; a copy of which is annexed to this report, marked A. Touching the correctness of the decision of the canvassers as to the counties above named, and the returns therein set forth, the undersigned does not under- stand the contestant to raise any objection. The facts in relation to the other rejected counties, viz : Dakota, Washington, Otoe, and Richardson, seem to be these : in Dakota county the polls stood, for Bird B. Chapman, twenty-five votes, and none for any other candidate. These the canvassers rejected. The reasons for their rejection were not assigned by them in their report to the governor. But, from the papers submitted to the committee, it seems they were liable to two objections. In the first place, the only returns from that county were of an election held at Omaha creek, and not at Dakota City, the only place appointed and established in conformity to law for holding elections in that county. And in the second place, no certificate or abstract of the county or probate judge, as required^ by law, accompanied the return. It was sent up by those who acted as clerks of the election. By section 14 of the territorial act of March 16, 1855, regulating elections, it is provided that "at the close of the canvass one of the poll-books and all the CONTESTED ELECTION CASES IN CONGRESS. 211 ballots cast shall be delivered to' one of the judges for safe-keeping, and the other poll-book, securely enclosed and sealed, shall be, within five days there- after, transmitted to the county clerk." And section 15 is in these words : " On the reception of said returns by said clerk, the judge of probate, together with three disinterested householders, chosen by him, shall open said returns, and make abstracts of the votes, cast for each several office at said election." These abstracts are the returns which the several probate judges are to make to the territorial canvassers; but in the county of Dakota there does not seem to have been made any such return as that required by law, and such as the pro- bate judge of the county could canvass or give any abstract or certificate of. The importance of this will appear when it is recollected that by sections 4 and 5 the judges of probate are by law required to appoint the judges of elec- tions at each precinct. A paper, therefore, purporting upon its face to be the return of an election at any precinct without the sanction of the probate judge of the county, wants that authenticity which is essential to its validity. For these reasons the undersigned is of opinion that the territorial canvassers acted rightly in rejecting the return for Dakota county. But if it should be taken into the account the poll would then stand thus : Chapman's majority above ,. 88 Vote in Dakota added - 25 Increasing his majority to 113 Otoe county stands in a similar condition touching the returns. In this county, as before stated, there were three precincts, viz : Nebraska City, Bennet's Ferry, and Wyoming. According to law, the judges of the elections held at these various precincts, who ought to have been appointed by the probate judge of the county, and who, with their clerks, by the said fifth section of the act before cited, constituted the board of election, should have made their return to the county clerk, as required by section 14, to have been there examined, consolidated, and certified to by the probate judge of the county, &c, in accordance with section 15 of the same act. But this was not done. The territorial canvassers had nothing before them but several papers purporting to be returns from the several precinct elections for Otoe county, signed by persons purporting to act as judges of elections and clerks of election. But there was nothing accom- panying the papers showing that they had any authority so to act; that they were the judges legally appointed to hold said several elections. This require- ment of the law, that the probate judges shall canvass and certify to the county returns by his abstract, the undersigned deems of essential importance. It is this which gives authenticity to any return ; and without it he thinks the return from Otoe county was properly rejected by the canvassers. But if it should be counted, the result would then be as follows : For Bennet 176 For Chapman 95 81 Giving Bennet 81 majority, which, deducted from Chapman's previous ma- jority of 113, leaves the poll thus far as follows : Chapman's majority, stated before , 113 Bennet's majority in Otoe deducted , 81 Majority still for Chapman 32 The next of the rejected counties is Washington. In this- county there were three precincts, viz : Fo*t Calhoun, De Soto, and Cuming., In this county the abstract was made out and certified to by the register of deeds of the county, 212 CONTESTED ELECTION CASES IN CONGRESS. and not by the probate judge, as the law required; and the register, in giving the certificate of the abstract, states that no poll-books had been returned from the precincts of Cuming City and De Soto. This the law positively required ; and its importance will be readily seen, when it is recollected that it is by the poll-books mainly that the names of those who vote illegally can be ascertained. The undersigned is of opinion that the unautheriticated returns of this county were properly rejected by the territorial canvassers. The'vote, as returned, stood forBennet 44, and Chapman 39 — giving Bennet 5 majority; so that, if it should be counted, the poll would then stand thus : Chapman's last majority, stated above 32 Bennet's majority in Washington deducted 5 Leaving Chapman still with a majority of 27 In the couniy of Pawnee no election was held. The returns from the county of Richardson are subject to objections of a dif- ferent and a more insuperable character still. Polls, it seems, were opened at three places in this county, viz : at Henry Abrams's, Salem, and Archer. At only one of these precincts, viz : Salem, was the board of election properly con- stituted. At Henry Abrams's the voting was without any authority. • The same was" the case at Archer; though this place was established as a precinct in the governor's proclamation, yet the probate judge of the county, believing it to be situated within the limits of the half-breed Indian lands, refused to give notice of an election there, or to appoint any board of election. This will ap- pear by the deposition of Hon. Joseph L. Sharp, hereto annexed, marked B. But as it was ascertained, shortly before the election, that the town of Archer was in fact not on the half-breed lands, it was determined to hold an election anyhow. Persons assumed to act as judges of election, and clerks were ap- pointed without the requirements of the law. This is quite sufficient of itself, according to well-settled principles, repeatedly established by this house, for the rejection of the entire poll at Archer. In the case of James Jackson vs. An- thony Wayne, of Georgia, 1st session of the 2d Congress, it was decided by this house that when the law regulating the election required that " three magistrates should preside at the election, a return by three persons, two of whom were not magistrates, was defective." In the case now under consideration the law re- quired " three judges of election to be appointed by the county probate judge" But the persons who assumed to act as such at the Archer precinct had no such authority; and the votes taken by them cannot be regarded in any other light than votes received by any other irregular body of men unknown to the law, acting voluntarily without any legal authority. In the case of Easton, contest- ing the seat of Scott, the delegate from the Missouri Territory, at the 2d session of the 14th Congress, it,was decided by this house that where an " election is required by law to be held by three judges who are to be sworn, and it is held, by two not sworn, their proceedings are illegal, and the votes taken by them are to be rejected." These principles the undersigned holds to be sound and correct. And ac- cording to them the territorial canvassers were, as it seems to him, bound to reject the returns for the election held at Henry Abrams's and at Archer, without any reference to other informalities attending them ; and upon the same prin- ciples this house should also reject them. The contestant in this case, in a paper filed with the committee, says that " the right of suffrage under our form of government is a great, sound, and para- mount right, and not to be lost by the errors, omissions, or neglect of subordi- nate officials." The undersigned cannot agree with the contestant in the extent to which he asserts the doctrine in this proposition. The right of suffrage, great and inestimable as it may be, is nevertheless a right regulated and qualified by CONTESTED ELECTION CASES IN CONGRESS. 213 law ; indeed, it can only be properly exercisefl in conformity to the requirements of law. Without these, it would soon cease to be valuable. The polls at the various precincts in Eichardson county stood as follows : ■ Bennet. Chapman. At Henry Abrams's 15 , 9 At Salem 21 21 At Archer 40 6 76 36 . The vote at the only legal election held in the county being equal, the re- jection of the other two precincts leaves the aggregate result of twenty-seven majority for Chapman in the entire Territory, as before stated. But in reference to the poll at Archer, there are graver objections still, at least to a part of the vote entering into the count of forty for Bennet. Of these forty for Bennet, nineteen, as appears from the deposition of Mr. Sharp referred to before, were residents upon the half-breed Indian lands, and not within the civil jurisdiction of the territorial authorities of Nebraska. The letter' of the Commissioner of Indian Affairs, with the treaties and laws referred to by him, the undersigned deems conclusive on this subject. The Commissioner's letter will be found among the papers on file already printed in the report of the majority. But besides the views there presented, it appears from the evidence of Mr. Sharp that these people did not themselves claim to be within the civil juris- diction of the Territory. They refused to pay taxes, or to have their property assessed ; and as great and inestimable as the right of suffrage may be, and is, those who refuse to contribute their quota of the public burdens of the govern- ment certainly cannot complain of being deprived by that government of having a voi6e in its councils. It moreover appears by the proclamation of the governor, on file and printed in the majority report, that the residents upon the half-breed Indian lands were excepted from the civil jurisdiction of the county of Richard- son. They did not come within the limits or proper boundaries of any election precinct organized under the territorial law ; and, according to that law, sec- tion 10, no one, not even a legal voter, is permitted or entitled to vote out of his election precinct. From these considerations the undersigned is clearly of opinion, if all the other returns in all the counties and precincts in the Territory should be received, notwithstanding the irregularities and fatal defects in law attending some of them, that these nineteen votes taken at Archer should be re- jected ; the result then would be — Chapman's majority, as before stated 27 Chapman's vote in Richardson 36 63 Bennet's vote in Richardson 76 Less the 19 illegal votes at Archer 19 — 57 6 Leaving Chapman an unquestionable majority of six- of the legal voters, upon the assumption that none but legal votes were cast at the other polls. But, from the deposition of honorable Joseph L. Sharp, it will be seen that a number of other illegal votes, four certainly, and prima facie seven, were cast for Bennet at the Archer precinct, in Richardson county, besides the nineteen resi- dents on the half-brfced lands. The only six votes cast for Chapman at Archer, 214 CONTESTED ELECTION CASES IN CONGRESS. as appears from his deposition, weif legal votes. The same also appears in the deposition of E. 8. Sharp, hereto appended, marked C. It appears, from the deposition of honorable Joseph L. Sharp, that the nine- teen illegal votes alluded to, whose names are all given in the deposition, were east for Bennet. From the deposition of P. 0. Sullivan, also appended, marked D, it appears that great irregularities attended the election at the De Soto precinct, and that nine illegal votes, whose names are specifically given, were cast at said precinct for Bennet, the contestant. Mr. Sullivan, it appears, was the Speaker of the House of Representatives, and his testimony should be received with great weight. The deposition of P. G. Cooper, marked E, shows also irregularities attending the election at the same precinct ; but Mr. Joseph L. Sharp states also that one of the clerks at this precinct was a non-resident of the Territory, which, of itself, was enough to vitiate the entire return, according to the territorial law, before cited. These facts abundantly show the propriety of the action of the territorial canvassers in rejecting the entire poll of the De Soto precinct. The vote* at that poll stood, 36 for Bennet, and 7 for Chapman. But the result of the whole matter is, if all the votes in the Territory should be counted as claimed by the contestant, with the exception of the nineteen illegal votes cast for him at the Archer precinct, in the county of Richardson, by residents on the Indian reserve, it would still leave Chapman with a clear majority of six, and the vote by counties will stand as follows : Beniiet. Chapman. Others. Douglas county 123 259 Burt county 19 14 1 Dodge county , 17 7 Cass county 94 33 4 Nemaha county c 56 57 4 Washington county 44 39 Dakota county 25 Otoe county 176 95 19 Pawnee county .. r . .... Richardson county 76 — 19=57 36 569 575 35 569 Majority for C na P man - - - - 6 And if the four eertain illegal votes, other than the residents on the half- breed Indian lands, cast for Bennet at Archer, according to the testimony of J. L. Sharp, and the nine certain illegal votes cast for him at De Soto precinct, in the county of Washington, according to the testimony of Mr. Sullivan, be also deducted, as they ought to be, from the evidence, then Chapman's majority of the legal voters of the Territory, as appears from all the testimony and returns in the case, will be nineteen. All of which is respectfully submitted. ALEXANDER H. STEPHENS. On the 22d day of July the House voted, after a brief debate confined strictly to the points stated in the reports, that Mr. Chapman, the sitting dele- gate, was entitled to his seat — 69 to 63. Note. — The speeches upon this case will be found in volume 32, part 3, of the Congres sional Globe. In support of the majority report: Mr. Watson, page 1688. Against: Mr. Jewett, page ;711 j Mr. Foster, page 1713; Mr. Stephens, page 1714. CONTESTED ELECTION CASES IN CONGRESS. 215 THIRTY-FOURTH CONGRESS, THIRD SESSION. Clark vs. Hall, of Iowa. An informality in a county abstract of votes is not sufficient cause for its rejection. IN THE HOUSE OF REPRESENTATIVES, February 4, 1857. Mr. Bingham, from the Committee of Elections, made the following report : It appears from the canvass of the State canvassers of Iowa that the sitting member received one hundred and seventy-seven more votes than the contestant, of the votes which they received and allowed. The State canvassers, by the laws of Iowa, canvass abstracts furnished by certain county officers of the votes thrown in the several counties. Objections are made in this case, both to alleged informalities in these county abstracts and to their alleged want of correspondence with the state of tile votes as actually cast in the voting precincts. In conformity with the principles acted upon by your committee in the case of the contested seat of the delegate from the Territory of Nebraska, your committee would not reject for mere informality a county abstract which truly i presents the aggregates of the votes actually cast in the voting precincts. In this case there is evidence that legal votes actually east both for the con- testant and the sitting member are not embraced in the county abstracts. It does not, however, sufficiently appear that the corrections authorized by the evidence would so far change the result as to give the contestant as many votes as the sitting member received. In view, however, of the many irregularities and errors in the returns of votes, your committee believe that the contestant has prosecuted his elaim to a seat in the House in good faith, and because he felt called upon to do so by a regard for his own rights and the rights of those who had given him their suffrages. The hearing of the case before the committee was suspended on the 6th day of last May, by an agreement of the parties entered into with the view of pro- curing additional testimony. Considering all the facts and circumstances in the case, your committee recommend to the House the adoption of the accompanying resolution : Resolved, That Hon. Augustus Hall was legally and duly elected as the representative of the first congressional district in the State of Iowa for the 34th Congress. The House agreed to the resolution without debate or division. THIRTY-FOURTH CONGRESS, THIRD SESSION.' Eeeder vs. Whitfield, of Kansas. Mr. Whitfield was returned to Congress by the legislature of Kansas, and, after consider able debate, was permitted to be sworn in and take his seat during the contest. The same questions were raised in this contest that were settled in the previous Congress, together with the new one that the governor of Kansas Territory had no legal authority to order a special election. The House rejected the report of the committee, and Mr. Whitfield retained his seat. 216 CONTESTED ELECTION CASES IN CONGRESS. IN THE HOUSE OF REPRESENTATIVES, February 12, 1857. Mr. Israel Washburn, jr., from the Committee of Elections, made the follow- ing report : 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 '.'an act to regulate elections," enacted in 1855, by a body of men claiming to be the legislature of Kansas, and which derived its existence from an election held in that Territory on March 30, 1855. It appears from the report of the special committee, appointed by this house, during its 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 laws, and their enactments are, therefore, null and void." In this conclusion of the special committee, this house has manifested its own concurrence by many {decisions and on' many occasions. It is supported by an array of evidence which has never been successfully assailed, and which constitutes one of the darkest pages in American history. To admit the legality of the so-called territorial legisla- ture of Kansas would be to sanction fraud, violence, and perjury, combined and systematized upon the most gigantic scale, and for the most corrupt objects. It is a fatal objection, therefore, to the claim of the sitting delegate to have been elected in pursuance of law, that he bases it upon an election held under the direction of officers deriving their authority from an usurping legislative body, and regulated by laws emanating from the same vicious source. 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. In the thirty-second section of the act of Congress of 1854, organizing the Territories of Nebraska and Kansas, the following provision was made for the election of delegates to Congress from the Territory of Kansas : The first election shall be held at such time and places, and be conducted in such man- ner, as the . governor shall appoint and direct ; and at all subsequent elections the times, places, and manner of holding the elections shall be prescribed by law. By this provision of the organic act constituting the Territory of Kansas, the power of the governor to prescribe the time of electing a delegate to Congress was limited to the first election, which took place in October, 1854, and it was expressly declared that " at all subsequent elections the times,places, and manner of holding the elections shall be "prescribed by law." It being manifest, therefore, that the governor of Kansas was not authorized by anything in the organic act constituting the Territory of Kansas to issue his proclamation for an election of a delegate to Congress in the month of October last, it remains to be considered whether any such authority has ever been con- ferred upon him by the (so-called) territorial legislature of Kansas. The first section of " An act to regulate elections," enacted in 1855 by the (so-called) territorial legislature of Kansas, embraces all the legislation of that body on that subject, and is in the following words: On the first Monday in October,! in the year one thousand eight hundred and fifty-five> and on the first Monday in October every two years thereafter, an election for delegate to the House of Representatives of the United States shall be held at the respective places of hold- ing elections in the Territory of Kansas. There is neither in this section nor in any other part of the code of laws enacted by the (so-called) territorial legislature of Kansas any provision for the election CONTESTED ELECTION CASES IN CONGRESS. 217 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 considera- tions, 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 "indul- gence and discretion, to retain his seat, if it sufficiently appeared that his elec- tion 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 con- trary, all the circumstances and evidence in the case point irresistibly to an op- posite 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 commis- sioners, 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 previous residence in the Territory, not even one single hour. In connexion with the twentieth Bection 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 discre- tion, 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 " in- habitant" 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 218 CONTESTED ELECTION CASES IN CONGRESS. test oatbs 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 sub- Stance 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 (so- called) 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 ex- ercise of the right of suffrage^ by the test oaths imposed by the pretended elec- tion 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 ballot- box. v The contestant, A. H. Reeder, in his memorial declares : In the month of October, 1855, the said J. W. Whitfield and your petitioner were candi- dates 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 01 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. Whit- field 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. Whit- field 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, CONTESTED ELECTION CASES IN CONGRESS. 219 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 oj>lor 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. t 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 Gommittee of Elections, beg leave to submit the following minority report: The undersigned, after the most careful examination of the whole subject iu 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 elec- tion 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 tesflmony taken before said special committee it will appear most manifestly, to any un- prejudiced mind, that the election of March, 1855, for members of the legis- lature, 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 tendB to show that "fraud, violence, and perjury" were combined and systematized upon the most gigantic scale, and for the most corrupt objects, 220 CONTESTED ELECTION CASES IN CONGEESS. 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 con- nexion 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, 1856, 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 legis- lature, it necessarily follows that the proclamation of the governor, ordering the election held in October, 1856, was unauthorized and void, and that, conse- quently, the election of the sitting delegate was null and void from the begin- ning; but, on the contrary thereof, the undersigned would suggest, for the con- sideration 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 Con- gress, 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 pre- scribed 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 monti* of October, 1 854, in accordance with the provisions of the law just quoted; the second in the month of October, 1855, in accordance with the pro- visions of the laws enacted by the Kansas legislature. At which second elec-? tion 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. Eeeder, the eontestant in this case, and he, Whit- field, 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 accord- ingly. 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 CONTESTED ELECTION CASES IN CONGRESS. 221 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- Buch 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 frpm 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 Terri- tory 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 elec- tions." 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. The construction given to the organic act by the undersigned does not dero- gate from the rights of any ; but, (in its practical operations, secures to the peo- 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 main- tain 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 he, 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 he 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 222 CONTESTED ELECTION CASES IN CONGRESS. two years for which members of the House of Representatives of the United States are elected ; and in that house each of the said delegates shall have a seat, with a right of deba- ting, but not voting. Mark the words of the act : " Now hath, or hereafter shall have, the right to send a delegate to Congress." There having "been "a temporary government established" in Kansas Terri- tory, under the act of Congress of 1817, as just quoted from, the governor, in the opinion of the undersigned, not only had authority to issue his proclama- tion ordering the election, which was held on the said first Monday of October,. 1856, for a delegate to Congress, but, being charged with the execution of all laws applicable to the said Territory, it was his indispensable duty to have done so. The law just quoted, the undersigned maintain, has an important bearing, and is now, and has been from the time of the taking effect of the act of Con- gress organizing the said Territory, in full force therein. In support of this proposition they beg to refer to the thirty-second section of the said organic act, or so much thereof as bears upon the point in hand. The provision relied on in this regard is as follows : That the Constitution, and all laws ofthe United States which are not locally inapplica-. ble, shall have the same force and effect within the said Territory of Kansas as elsewhere within the United States, except the 8th section of the act preparatory to the admission of Missouri, &c, &c. In view of all this, the undersigned cannot allow themselves to doubt for a moment that the governor of the Territory of Kansas, in issuing his proclama- tion for an election of a delegate to Congress, to fill the vacancy occasioned by the expulsion of the sitting delegate from this house, during the last session of Congress, as before more particularly referred to, and that, consequently, the election held in Baid Territory in pursuance of the governor's proclamation, on the first Monday in October, 1856, was fully authorized, and but carrying out the organic act in its true spirit and import. And, indeed, in doing so, the governor was but executing faithfully the . laws applicable to the Territory of Kansas in relation to the election of delegates to Congress, and evidently with the view of carrying out, in all good faith, to their legitimate ends, the great objects of the organization of that Territory. As the chief executive officer, the governor could not, in the opinion of the undersigned, have done less, without being guilty of an inexcusable dereliction of duty to the Territory of which he was governor, and, indeed, they think they may add, to the whole country. When the vacancy was occasioned, in the manner before referred to, the undersigned do not believe that many, if any, members fancied even that they were voting to create a vacancy by the expulsion of Whitfield, which could not be filled without an amendment of the organic act or the election laws, enacted as heretofore stated, by the legislature of Kansas. But, doubtless, they believed that they were but referring the matter back to the people of the Territory, to be passed upon by them at the ballot-box, as they have done, and send a dele- gate here to fill the vacancy so created as aforesaid. And, finally, in consideration of the premises, the undersigned are clearly of the opinion that John W. Whitfield is entitled to a seat in this house as the delegate from the said Territory of Kansas ; and that, therefore, the resolution reported by the majority of the committee should not be adopted by the House. All of which is respectfully submitted : M. OLIVER. W. R. SMITH. The House (February 21, 1857) tabled the resolution reported by the com- mittee — yeas 96, nays 85. This left Mr. Whitfield in the seat. Note. — There was no debate upon this case in the House except upon the swearing in of he delegate, which will be found on page 2, vol. 34. CONTESTED ELECTION CASES IN CONGRESS. 223 THIRTY-FIFTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Harris, Illinois. Mr. Phillips, Pennsylvania. Boyce, South Carolina. Gilmer, North Carolina. Washburn, Maine. Lamar, Mississippi. Stevenson, Kentucky, Wilson, Indiana. Clark, Connecticut. In the second session Messrs. Wright, of Tennessee, and Cavanaugh, of Min- nesota, in place of Messrs. Phillips and Harris. Vallandigham vs. Campbell, of Ohio. The preliminary contest was upon an application for further time (on the part of the sitting member) to take supplemental testimony. Held by the committee that the fact that the sitting member was a member of the previous Congress and attended to his duties as such during a part of the time when by law the testimony should be taken furnishes no reason why further time should be granted. Also, that the fact that the contestant occupied, or proposed to occupy, the entire sixty days after the answer of the sitting member to the notice of the contest served, does not en- title the sitting member to an extension of time. On the second and main contest there is not, in the ordinary signification of the word, a report. The committee could not agree. One of the minority reports is signed by "Messrs. Lamar, Phillips, Boyfte, and Stevenson. Its concluding resolutions were adopted by the House, and its prominent legal points will be stated here : It is not necessary in a notice to give the names of illegal voters objected to. Abstracts of votes returned to the office of secretary of state, though not obtained within the sixty days fixed for taking testimony, can be used as documentary evidence. Poll-lists are not sufficient evidence that a person voted ; parol evidence of identity is necessary. A resort to parol proof, where the poll-lists are not required to be kept by law as records, is admissible. Evidence consisting of the declarations of voters as to any matter concerning their own voting is admissible. Persons having a visible admixture of African blood are not white within the meaning of the Constitution, and could not vote under the laws of Ohio. IN THE HOUSE OF REPRESENTATIVES, January 27, 1858. Mr. T. L. Harris, from the Committee of Elections, made the following report : That they have considered an application made by the sitting member to them to ask of the House, in his behalf, leave to allow further testimony to be -taken, pursuant to the proviso contained in the 9th section of the act of February 19, 1851. This being an application amounting to a continuance of the case until a future day, it was deemed proper to settle it before deciding upon the merits of the case as presented in the issues and proofs of the parties. Mr. Campbell, in support of his application, read and filed with the commit- tee an argument, with several other papers connected therewith, which are sub- mitted with this report. Mr. Vallandigham resisted the application, and read and filed with the committee an argument, with several other papers connected therewith, which are also submitted with this repojrt. The reasons for allowing supplementary testimony to be taken in this case are so fully stated in the argument of the sitting member, and the objections to the same are so amply discussed by the contestant, that your committee deem it quite unnecessary to restate them. 224 CONTESTED ELECTION CASES IN CONGRESS. The grounds upon which the sitting member seems to rest his application for leave to take supplemental testimony seem to reduce themselves to two, viz : 1. That the sitting member, having been a member of the last Congress dur- ing a part of the time, when by law the testimony should have been taken, and having been attending to his duties as such member, he should be exempted from the operation of the law so far as to allow him time for taking supplemental testimony. 2. That the contestant, by notices served upon the sitting member, occupied, or proposed to occupy, the entire sixty days after the answer of the sitting mem- ber tO; the notice of contest was served, and that he is therefore entitled to a period of time outside of the sixty days to complete his taking of testimony. Upon the first point, your committee are clear that the fact of one of the parties being a member of Congress for the time being can in nowise affect his obligations to comply with the law. In all the relations of life, both private and public, circumstances are constantly occurring which are quite as impera- tive in their operation as those connected with a seat in Congress ; and were this to be deemed a sufficient reason for a non-compliance with the law, it would at once take from its operation one-half the cases which arise. The fact that the law expressly provides for taking testimony by the parties or "their agents " excludes the construction that it was intended to apply only when the parties could attend in person. Upon the second ground your committee are equally clear, that however ex- tensive the time covered by one party in proposing to take testimony, it in nowise precludes the opposite party from proceeding at the same time to take it in his own behalf. There is no limitation to this power by the act of 1851, except " that neither party shall give notice of taking testimony in different places at the same time, or without allowing an interval of at least five days between the close of taking testimony at one place and its commencement at another." Under this provision, your committee believe full power is given to each one of the contesting parties to proceed with taking testimony, but limits each to one place at a time. Your committee are of opinion that if either party to a case of contested elee- tion should desire further time, and Congress should not be then in session, he should give notice to the opposite party and proceed in taking testimony, and present the same and ask that it be received, and, upon good reason being shown, it doubtless would be allowed; but it seems too much to grant, in this case, for either of the reasons stated. It is now upwards of fifteen months since the election, and nearly one-half of the term of service has elapsed, and it is due to erery interest concerned that the rights in dispute should be settled. Your committee are therefore of opinion that no further time should be allowed to take supplemental testimony in the case. At the request, however, of the sitting member, that the question may be presented to the House, your com- mittee report the following resolution : Resolved, That it is inexpedient to allow further time to take testimony in this case, as asked for by the sitting member. MINORITY REPORT. The undersigned, members of the Committee of Elections, being a minority, and- not agreeing with the majority in their report on the application of Lewis D. Campbell, the sitting member, for an order of the House to allow supple- mentary evidence to be taken on the memorial of Clement L. Vallandigham, contesting the seat of the said Lewis D. Campbell from the third congres- sional district in the State of Ohio, ask leave to submit the following report : From the record in this case, (Mis. Doc. No. 4,) it appears that the contestant commenced taking testimony, at the city of Hamilton, Butler county, on the 2d day of February, 1857, and kept this commission open until the 13th day CONTESTED ELECTION CASES IN CONGRESS. 225 of March of that year, (pp. 94 to 130.) It also appears that whilst the above commission was open and unclosed, the contestant (notwithstanding the express provisions of the act of Congress of February 19, 1851, in relation to contested elections, that neither party shall give notice of taking testimony at two dif- ferent places at one and the same time) did give notice, and did proceed in pursuance of the same to take testimony, at the city of Dayton, on the 2d day of March, 1857, and continued the commission under the same open until the 18th day of March of that year. — (Mis. Doc, pp. 8 to 15.) From this it is clear that contestant availed himself, and made the best pos- sible and double use, of the time allowed by law for taking testimony ia cases of contested elections. And it also further appears that contestant gave notice and commenced taking testimony, at the city of Dayton, on the 20th day of March, 1857, and closed the same on the 28th of the same month— the last day allowed by law for taking testimony. — (Mis. Doc. No. 4, pp. 22 to 90.) It is therefore evident that the contestant actually consumed, and in fact employed, (if we count the time covered by open commissions at the different places,) the full period of sixty-six days ; to which if we add the five days' interval required by law between the closing of the commission at one place and the opening at another or different place, it would make seventy-one days covered by the contestant by his commissions ; whilst the sitting member, from the construction, in which, however, we do not concur, which it is clear to us both the parties gave to the law, was only able to take testimony from the 17th to the 27th March, 1 857, and that, at the time the sitting member's notice to take his testimony as aforesaid was served, the contestant refused to attend, and claimed that he had already covered this time with his notices, and which latter statement is not denied by contestant. And, in addition to all the above reasons, it is alleged and admitted that the sitting member, a short time after the time limited by law for taking testimony in such cases, proposed to contestant that each party should be at liberty to proceed and take such further and other testimony as either of said parties might desire, so as thereby to have a full, fair, and impartial investigation of the whole matter, but all of which was declined by the contestant. Under such circumstances the sitting member had no other alternative but to wait until the matter came before Congress, and then avail himself of his legal and equitable right to take further evidence in the cause, which he did by his application to the House through the committee for leave to take testimony. If is true, the contestant denies, upon the first notification from the chairman of the Committee of Elections of the pendency of his case, most of the state- ments in the application for the time ; but as his denial only raises a question of veracity between himself and those who have given the sitting member the information of the facts set forth by affidavit in his application, the request for further time is clearly well founded. The act of 1851 (Stat, at Large, p. 570) provides " that the House (not the committee) may, at their discretion, allow supplementary evidence to be taken after the expiration of said sixty days." The undersigned, therefore, for the reasons set forth in the application, recommend the adoption of the following resolution : . Resolved, That Lewis D. Campbell and Clement L. Vallandigham be, and they are hereby, allowed the further time of forty days from the passage of this order to take supplementary evidence touching. the matters set forth in the memorial of Clement L. Vallandigham, con- testing the right of Lewis D. Campbell as the representative from the third congressional district of Ohio in the 35th Congress of the United States. Respectfully submitted: JAS. WILSON. EZRA CLARK, Jr. I. WASHBURN, Jr. JOHN A. GILMER. 226 CONTESTED ELECTION CASES IN CONGRESS. The subjoined extracts will show the drift of the debate upon the preliminary question in this case : Mr. Stevenson. I do not think the gentleman from North Carolina who has just taken bis seat has placed the issue upon the proper grounds between the majority, with which I concur, and the minority. Nobody on the Committee of Elections, as I understand, denies or questions the power of the House to extend the time for taking testimony under the elec- tion law of 1837. It is not a question of power, but it is a question which addresses itself to the discretion of the House, whether it will exercise a power which everybody admits is granted under that act. Now, sir, the majority of the committee thought that Mr. Campbell, the sitting member, did not bring himself within the rule under which further time ought to be granted in which to take further proof in his case. I shall not detain the House long in stating the grounds on which the committee arrived at that conclusion. • It will never do to place such a con- struction upon this act of 1851 as is now claimed by the gentleman from North Carolina, [Mr. Gilmer.] If such a construction is placed upon the act, then the act itself becomes a monstrous wrong. It gives safety to the sitting member, but it absolutely denies everything like justice to the contestant for a seat in this house. Why, sir, it is claimed here that the gentleman from Ohio, in consequence of his duties here in Congress, had no time to attend to the taking of that testimony which, by the act of 1851, is required to be taken within sixty days. Gentlemen are well aware that in nearly all the free States the elections are held the year preceding the Congress in which the members elected are entitled to take their seats. This election took place nearly two years ago, just preceding the last session of the last Congress. Under the law of 1851 this testimony was to be taken in sixty days. Did the framers of this act contemplate the returned member to be present in person to take testimony, or could be present by an attorney 1 If present in person, he had to be there within the sixty days ; and in this case that sixty days was necessarily during the second session of the thirty- fourth Congress. But, sir, the act clearly contemplated that if he was to be there in person he had the right to leave his seat in Congress for that purpose. He could either do that or he could be represented in the taking of testimony by an agent. Mr. Campbell was repre- sented by an agent in taking proof : and yet now, eighteen months after, he comes here and asks that the time may be extended, in consequence of his having been engaged here at the time as a member of the House. Will the law of 1851 beaT such a construction as that ? I put it to the legal acumen of the gentleman from North Carolina. Is it consistent with justice, or propriety, that such a con- struction should be placed upon it ? Sir, under that construction, every gentleman who is returned from the free States will be engaged in Congress during the time when testimony must be taken under the law, if his seat is contested. He is presumed to be here ; and if that will give him the right to have time allowed to take supplemental testimony, members from the free States, whose seats are contested, will always have that right. Mr. Washburn, of Maine. * * * * Sir, I do not believe in the binding authority of the law of 1851 upon this house in all cases. I believe, sir, that it is directory, and not absolutely binding. I do not believe that the Senate of the United States, in con- junction with the House of Representatives in one Congress, can make a law which is to bind future Houses of Eepresentatives. Not so. By the Constitution of the United States, each house is made the judge of the returns, qualifications, and elections of its own members, and each house can and must judge for itself upon those questions. The law of Congress of 1851 is nothing but the advice or suggestion of reasonable and intelligent and just men, as to the proper course to be taken — advice given when no particular case was before them, and which may be presumed to be good and sound advice and counsel in reference to the matter. It is nothing more. The law is not binding upon us ; and if in any case it is op- pressive, and there is reason for stepping outside of it, I hold that we have a right to do it. I hold that the law was intended to be a shield and not a sword. It was intended to say to gentlemen claiming seats here, that at a certain time and in a certain way they might take testimony, which should be received ; but not to say that a member or his constituency should lose their rights upon this floor through any neglect, or inadvertence, or misinforma- tion. No, sir ; I will not consent to admit any gentleman claiming a seat upon this floor unless I believe that he has a right to it ; that he has been elected ; that he was the choice of a majority of the people voting in the district. I am willing to look beyond forms and tech- nicalities, and to ascertain the sense of the people, and who has been rightfully and truly elected and will represent the people. Mr. Marshal*, of Kentucky. Mr. Speaker, in the determination of the question which is brought by the Committee of Elections before the House, propriety demands that we should lose sight entirely pf everything like partisan feeling. It is a question of practice, and in treating it the House acts as a„court as well as a parliamentary body. The precedents under the act of 1851 stand in bold contrast with the course recommended by the committee. The resolution passed by the committee adopts a rule, more stringent than it is usual to observe in courts of justice. CONTESTED ELECTION CASES IN CONGRESS. 227 The application for farther time to take testimony is met hy the declaration that the sitting member in this case declined, directly after the election, to receive a notice from the contest- ant, the object of which was to go into an examination of the proof. What figure should this fact cut in the decision of the principle by this house ? The laws in Ohio require that the election shall be determined by a board of canvassers, consisting of the governor, secretary of state, attorney general, and probably some other public officer of the State. It provides that the county clerks in the several districts in the State shall forward the returns to the seat of government, and, upon the day fixed by the law of the State, the board of canvassers shall open the poll, examine the returns, and declare the result. The notice of the contestant was sent to the sitting member before the declara- tion of that result by the canvassers. The day fixed by law for canvassing the returns of the election was some day in December — the election took place in October — and the no- tice was served on Mr. Campbell in October, before the day fixed by the law of that State for the inspection of the election returns and the declaration of the result had arrived. Mr. Campbell declined to enter upon the examination upon the grounds that the movement was premature. Gentlemen say that in this Mr. Campbell relied upon a technical objection. Not so. As the election was not to be declared until an appointed day in December, it would have been exceedingly indelicate for the member to have received notice of contest, and ac- tually have proceeded to the defence of a seat whieh, by the laws of the State, had not been pronounced to be his. I ask the members of this high court whether any one of them, placed in exactly the same position, would feel himself at liberty to receive notice of a contest, and to go into an examination of the validity of his title to a seat, which title, by the laws of the land, had not been declared in his favor ? Much less, then — if he would not do so — ought he to permit this refusal upon the part of Mr. Campbell to affect prejudicially the ques- tion which is now pending at the bar. I take it for granted that there is no judge in the world who sits upon the bench, disposed to do right, who would prejudice the rights of a party for not doing that, or for not accepting the proposition to do that which he was in no- wise bound by law to do, and was forbidden to do by every consideration of propriety. * * Mr. Wilson. * * * * Now, sir, let us look at the law of 1851, and if the House does not wish to do injustice between these parties claiming the right to a seat upon this floor, let us see how they regarded this statute, and what construction they (the sitting member and the contestant) gave to it. I find in the application of the sitting member for additional time in which to take testimony, filed before the committee, the following language : "I was detained in Washington several days after the adjournment by the sickness of one of my children, and by the subsequent demise of one of my former colleagues, the Hon. David T. Disney. At a meeting of the friends of the deceased from Ohio, then in this city, I was appointed chairman of a committee to accompany his remains to the residence of his family in Cincinnati ; and in the discharge of this melancholy duty, I was unable to reach my home until the 19th of March, a few days prior to the expiration of the ' sixty days.' I then found that my attorney had taken steps to secure testimony in my behalf in one of the counties ' composing the district. He occupied ten days, (pp. 147 to 175.) I am informed by him that when he served notice (p. 138) contestant claimed that he had no right to do so, because his notices previously served covered the residue of the 'sixty days,' and refused to appear and cross-examine witnesses." Now, sir, here is a material fact, as important, perhaps, as any one presented in the case. Yet never once does the contestant, in his reply, deny or even refer to this statement upon the part of the applicant for additional time to take testimony. If it is not true, why did he not deny it in his reply ? This was the construction clearly given to the law not only by the contestant but by the sitting member. Now, then, let us take one step further in this case. What is that? The time allowed by law closed, evidence had been taken upon one side and no evidence scarcely upon the other side. I understood the gentleman upon the other side of the House to say that eighteen months had elapsed, and that it was time this case was determined. Let ufc see what steps the sitting member took to determine this question between him and the contestant. Let us see who has been in "laches." On the 2d of April, 1857, at Hamilton, the sitting mem- ber forwarded to the contestant a letter, it being a part of the papers in this case, in which I find this language : "Desirous that all the material facts shall be fairly presented before Congress, I deem it proper to advise you that I shall hereafter proceed to take testimony in the case, (of which due notice according to law, will be given, ) and to suggest my entire willingness to enter into a mutual agreement with you to waive any technical objection which might be made on the point of time in the taking of testimony on either side. I propose, therefore, a mutual agreement to that effect. This would give to both of us and to our friends a fair opportu- nity to present all the facts bearing upon the issue, and tend to prevent delay in the final de- cision of the matter." Here was the offer made. The sixty days had elapsed. What did the sitting member say ? I will go with you and take evidence notwithstanding ; present that evidence before the House; that shall determine between .us. . What was the answer of the contestant? Here it is: 228 CONTESTED ELECTION CASES IN CONGRESS. "Tour intimation, therefore, that you mean to proceed with your testimony, in spite of' the statute, gives mexth, and seventh wards were located on the boundaries of said wards, far away from the centres, and inconvenient to be approached by the citizens of the said wards, 14. That in the fourth ward of said city the votes received and counted by the judges for you exceed in number, by more than five hundred, the legal voters of lhat ward of both , political parties.- 15. That in the sixth ward of said city sundry minors and women were permitted to vote for you. 16. That, in all the» first seven wards of said city sundry persons were allowed to vote for you who were not legally entitled to vote, and many voted more than once for you. 17. That in the eighth district of Baltimore county, comprised within the third congres- sional district, twenty or more desperate men went from the city of Baltimore to a house near the place of voting in said district, on the night preceding the election day, and next day marched in front of the polls with arms in their hands to intimidate the electors, and did so intimidate them ; and, although not legal residents of the district, voted for you, some voting but once, others oftener, which ballots were counted and reckoned for you. 260 CONTESTED ELECTION CASES IN CONGRESS. 18. That in the twelfth district of Baltimore county, comprised in said third congres- sional district, a body of armed men in an omnibus proceeded from Baltimore city to the place of voting in said district, and there, by threats .and the exhibition of guns and pistols, intimidated and deterred from voting sundry electors duly qualified, who were about to vote for me ; and that said band of men subsequently drove by force many voters from approach- ing the polls, and in one instance attacked and drove back eleven or more voters in a body, who were on their way to the polls intending to vote for me, by which means the majority in that district for me was greatly diminished. 19. That by a general system of threats, violence, and abuse, many voters were intimi- dated so greatly that they dared not approach the polls of said district. ^ Should these allegations be substantiated by proof, as I am sure they will be, then I claim to have been elected by a majority of the sound and legal voters of the third district, and am entitled to a seat in the 35th Congress from the third congressional district of Maryland, or at least to the submission of the question again to the people. I am, very respectfully, your obedient servant, WM. PINKNEY WHYTE. Hon. J. Morrison Harris. To all these charges and specifications the contestee, by his answer of Decem- ber 21, 1857, either makes absolute denial, interposes explanations, or denies knowledge of the allegations; The contestee, after this, proceeds as follows : And I do charge, and expect to sustain by proof,! that in addition to illegal votes polled for you at the polls of all the other wards of said city, that in the eighth ward thereof, also within the congressional district, a large number of illegal votes were received and counted for you, and that the majority shown for you in said ward was swollen by the polling in your favor of at least one thousand illegal and fraudulent votes ; and I further charge, that if, as alleged by you, intimidation of voters and reasonable apprehension of personal vio- lence and danger constitute a cause for vacating an election, that the notorious character of the said ward for violence created, with hundreds of the legal and qualified voters of said ward, who would have voted for me, a reasonable and well-grounded fear that the attempt to exercise their right of suffrage at the said polls would be attended with great personal risk and danger ; and that, in consequence thereof, they refrained from any attempt to vote, thus decreasing ^the vote to which I was entitled in the said ward. And I do further charge, that on the day of said election a large number of legal and qualified voters of the eighth election district of Baltimore county, being within the congres- sional district, were prevented from voting for me by the presence, in the immediate vicinity of the polls, of nearly one hundred armed men of your party; and that a large number of illegal votes were also received and counted for you at said polls. And I do further maintain and insist that, if there existed any necessity for accounting for the largeness of my majority apart from ordinary party strength, it would be largely ex- plained by the fact of the unconstitutional and illegal attempt upon the part of the governor of Maryland to overawe .the elections and control the suffrages of the people of Baltimore, by his attempt to use military force upon the day of said election. For all which reasons I do not doubt the validity of my election as the representative of the third congressional district of Maryland to the thirty-fifth Congress of the United States. I am, respectfully, your obedient servant, J. MORRISON HARRIS. William Pinkney Whyte, Esq." [The majority report proceeds to give the alleged facts of the election, the re- turned majority for the incumbent being 3,318. The majority of the same can- didate two years previous in a congressional election was but 56. The evidence is copiously cited to show that anarchy prevailed in Baltimore during the election.] There is one fact stated by all the witnesses interrogated upon this subject, that the tickets used by the American party were distinguished by a number of ' red perpendicular stripes across them, so as to be readily known as a voter approached the polls; some of these tickets are filed as exhibits. It is clear to ' the committee that such marks upon ballots are in violation of the spirit of the law that provides for a ballot system; one of its great objects, if not its greatest one, is to allow the elector to make his choice by a secret vote. * * * With such evidence before the committee, the next inquiry is, What is to be done? What is the law of elections applicable to such a case ? CONTESTED ELECTION CASES IN CONGRESS. 261 The decisions of contested election cases in England have long since settled the law as to the effect of riots at the polls. Numerous cases have been determined by the Commons, setting aside and making void elections where the violence and tumult were incomparably less than in this case. — See 3 Ed. I, c. 5, where it is enacted, " berause elections ought to be free, the King commandeth, upon great forfeiture, that no man, by force of arms, nor byjnalice, or menacing, shall dis- turb any to make free election." — (2 Inst., 168.) By Stat. 13 Hen. IV, c. 7, it is required that " sheriffs and justices \of the peace shall repress riots with the power of the county." "The Stat. 1 W. & M., sess. 2, c. 2, s. 1, after reciting, as one of the grounds of the abdication of James, ' the violating the freedom of election of members to serve in Parliament,' declares ' that elections of members of Parliament ought to be free,' this being one of the undoubted rights and liberties therein claimed and recognized." "T?he freedom of action thus solemnly confirmed the law will not suffer to be endangered either by seduction and persuasion or by awe and intimidation. Therefore it is that neither practices of" bribery and corruption, nor the interpo- sition of illegal influence, nor the presence of a military force during an election, nor the interruption of the proceedings by riot and disturbance, can in any de- gree be endured, by the Constitution." — (Vide Neale on Elections, 63.) " It only remains to observe, that whenever there has been an interruption of the proceedings by riot and tumult, notwithstanding the returning ofllcer has been able to continue and finish the poll, and to comply with the exigency of the writ, by the return of members, election has been holden totally void." — (Idem, p. 125.) For this cause the elections for Pontefract, 28th May, 1624, were declared void, (1 Jour., 797 ;) Southwark, 10th December, 1702, (14 Jour., 24;) Coventry, 5th February, 1706, (15 Jour., 278;) Westminster, 6th November, 1722, (20 Jour., 53;) Coventry, 20th November, 1722, and 22d March, 1736, (20 Jour., 60, and 22 Jour., 819;) Westminster, 22d December, 1741, (21 Jour., 37;) Pontefract, 24th November, 1768, (32 Jour., 68; Westminster, November 6, 1772, (Chamb. Elec, 607;) Nottingham, in 1803, (1 Peck., 77.) The law of elections is thus well settled iu England, that a riot or tumult, or a display of numerical strength accompanied with threats, even though no actual violence takes place, or conduct of parties engaged being such as to strike terror into the mind of a man of ordinary firmness, and deter him from proceeding to the poll, the election will be held not to be free, and will be declared void. — (Com. Jour., IX, 631; Hey., 546.) "And where the proceedings at an election are interrupted by riots, the election will be held void without reference to the number of votes affected thereby." — (Rog. on Elec, 243.) Yet it seems necessary to the existence of such a riot as will avoid an election that it should be founded on system, or at least upon premeditation ; for a casual affray or an incidental disturbance, without any intention of o'verawiug or intim- idating the electors, cannot be considered as affecting the freedom of elections. — (Rog. on Elec, 242; Trigg vs. Preston, Cont.'Elec, 78.) * It is fortunate and gratifying to know, that since the adoption of the Consti- tution of the United States not a case has been presented to Congress showing the existence of any riot or tumult, at an election for any of its members, going to affect its fairness and freedom, and but two where even allegations of such conduct having been manifested at the polls have been made. — (Trigg vs. Pres- ton, Con. Elec, 78 ; Biddle & Richard vs. Wing, id., 504.) In neither case was there anything amounting to a riot or an obstruction to the polls shown. In both cases the sufficiency of the alleged cause is not questioned, but the proofs do not make out the cases. Indeed, in the latter, the committee indicate that, if the proof showed a state of things incompatible with the purity and fairness of the election, it would be sufficient to determine the question. 262 CONTESTED ELECTION CASES IN CONGRESS. Having, then, no case heretofore presented to this house involving a decision as to what extent violence, intimidation, and riot may prevail at elections to war- rant a vacation of a seat, we can only refer to the numerous precedents which we find settled by other elective bodies, and to the plain teachings which we derive from our Constitution and theory of government. In the judgment of the Committee of Elections, these require the return in this case to be set aside and the seat vacated. It cannot be considered the re- turn of an election made by the legal voters of the third congressional district of Maryland. An election is the free choice by those who have the bight to make it, and who desire and seek to make it, uncompelled, unawed, and unintimidated. The return here was based upon votes alleged to have been east in that congressional district. The proofs show that at the first eight wards of the city of Baltimore, and at the twelfth election district of Baltimore county, (comprising about five-sixths of the returned votes,) in some to a much greater extent than others, but in all to a most culpable extent, violence, tumult, riot, and general lawlessness prevailed. That, as a consequence, the reception i of illegal votes and the rejection of legal votes, the acts of disturbance and assault committed on peaceable citizens, and the intimidation of voters, so pre- dominated as to destroy all confidence in the election as being the expression; of the free voice of the people of that congressional district. The committee are not unmindful of the magnitude of the question they pre- sent to the consideration of the House. On the one hand it involves the vaca- tion, temporarily, of a seat in the House of Representatives ; on the other, it requires an acquiescence in, if not approval of, a wanton and unjustifiable inter- ference with the most sacred of all political rights to a free people. The free- dom of the ballot-box and the purity of the elective franchise are the fountains of our political life; corrupt or choke them in their pure, free flow, and the fair fields of the republic become a desert waste, and the haunts of those political beasts, demagogues and traitors. If the case presented is not one that calls for the interposition of the House, the committee cannot conceive what would; be sufficient. Let this be held a good and valid election, and hereafter no return can be justly questioned. It matters not who may be the returned member, nor what may be his standing or talents. It is the election,, and not the indi- vidual, with which the House has' to deal; and it is proper to remark in this connexion, that there is no proof in the whole mass of evidence that shows that the sitting member had anything to do with, or in any way countenanced, the acts complained of. But this is not enough. Those who seek, by undue' and unlawful means, to place men in public positions in offices of honor or power should be advised that by the use of such means they will assuredly defeat their object. ****** The committee submit in conclusion the following resolution : Resolved, That it appears to this house that there was such tumult, disorder, riot, intimi- dation, and injustice, in the election of a representative to Congress from the third congres- sional district of the State of Maryland, on the third day of November last, in contempt of law and in violation of the freedom of elections, that the said election is void, the seat from the said district is hereby declared vacant, and the Speaker of this house "be and is directed to. notify the governor of said State thereof. The minority of the committee submitted to the House an important report In it they hold that allegations 1st, 2d, 3d, 15th, 17th, 18th, and 19th are too bose and vague to give the sitting member the notice contemplated in the act of Congress. Particularity of specification was required before the passage of the law of 1851, and absolutely necessary since. Not. only are the allegations of this contestant insufficient, in view of the above ( authorities,,^ they do' not even indicate the class of the voters objected to CONTESTED ELECTION CASES IN CONGRESS. 263 as illegal, which was held to be the saving point as to the allegations of con- testant in the case of Vallandigham vs. Campbell, by a portion of the com- mittee in their report upon that case. The allegations which are based upon what the contestant calls " intimida- tion of voters," contain, in our opinion, no grounds upon which the election can be declared void, even if they should be considered sufficiently proved, which we deny is the case. The doctrine is a novel one, and if recognized would lead to infinite embarrassment and injustice in the adjudication of cases of con- tested election. It would, indeed, be almost impossible to limit the application ■ of the rule, if it be applied at all, or to establish a scale of timidity, for as the nervous constitutions of men differ widely, so would the causes of apprehension, and the rule applicable to one man would not meet the case of another. We consider the prin«iple far too dangerous and too loose to justify us for a moment in adopting it ; and we are aware of but one case in which the plea was attempted to be set up, and in that case we think that a fair rule waslaiddown. The question arose in the case of Biddle & Richard vs. Wing, Contested Election Cases, p. 507 ; where the committee held that they were not called upon to inquire into the causes which prevented a candidate from getting votes enough to entitle him to the seat, but that it is only required of them to ascer- tain who had the greatest number of legal votes actually given at the election. .An election, they say, is the act of selecting, on the part of the electors, a per- son for an office of trust. The inspectors of the election are constituted judges of the qualifications of the electors, and exercise, from necessity, a discretionary power; if they err, and reject a legal vote, or an elector, for any cause, fails to present it for their reception, the nature of the case precludes it from entering into the consideration of the general result of the election, unless, indeed, corrup- tion should appear sufficient to destroy all confidence in the purity and fairness of the whole proceeding ; which corruption the whole context shows to be a corruption on the part of the officers conducting the election, which is nowhere charged by the contestant to have existed in his case. It is properly a question between those officers and the injured party ; and the laws of the Territory (as in this case the laws of the State of Maryland) make ample provision for guarding the purity of the election, and for the punishment of offences against the rights of citizens in that respect. In case of the application of a contrary doctrine, the greatest uncertainty would necessarily prevail ; and it would be putting it in the power of a few riotous individuals to defeat any election. " The law appoints a particular time and place for the expression of the public voice; and when that time is passed it is too late to inquire wlio did not vote, or the reason why ; the only question being for whom the greatest number of legal votes was cast." — (P. 507.) In the case we are considering, a large number of names are given of persons who, it is alleged, were " intimidated ;" and we will consider directly the curious and insufficient manner in which their assumed intimidation is sought to be es- tablished, only premising that, except in isolated cases, it is nowhere shown that these men would have voted for the contestant if they had gone to the polls, whether they were really entitled to vote, or what were the causes of their intimidation, so that a judgment could be formed of its reasonableness and force ; nor is it shown that any condition of things at the polls themselves on the day of election was brought to their knowledge, even if anything actually occurred there, reasonably calculated to inspire fear. In the 4th and 5th allegations of his notice, this contestant presents another objection to the validity of this election, which, while it is entirely new, does not require, in our opinion, any extended notice. He claims to have rejected all the ballots cast for the sitting member upon the ground that they were striped on the back with red lines. The constitution of the State of Maryland, article 1st, section 2d, provides that " the vote shall be by ballot ;" and the act 264 CONTESTED ELECTION CASES IN CONGRESS. of assembly regulating elections, 1805, chapter 97, section 12, provides " that upon the ballot shall be written or printed the name or names of the persons voted for, and the purpose for which the vote is given, plainly designated." It is not pretended that this was not done, and we cannot for a moment admit that the marks on the ticket, or the color of the paper on which the name and office are thus plainly designated, have anything to do with the legality of the vote cast, or are to be held as infringing the law of the State. The minority report argues that the allegations referring to the location of the polls are fully met by the law of Maryland; that the 7th allegation was not proved. A long statement of the facts of the case"follows. The report con- tinues : Having thus reviewed the allegations of the contestant, before we proceed to analyze the manner in which he attempts to establish the gravest of his charges against this election, we would state that, it is by hearsay testimony, and that of the lowest grade and the worst sort. It is such testimony as would beheld insufficient to establish a claim in the most- inferior class of civil tribunals, and which, the undersigned think, ought not for a moment to be considered as influ- ential in deciding a case of such magnitude as thereat of a member and the representation of a people. The just rule, in connexion with this class of evi- dence, is well stated in 1 Greenleaf on Evidence, p. 115 : Hearsay evidence is uniformly incompetent to establish any specific fact which in its nature is susceptible of being proved by witnesses who speak from their own knowledge. That it sup- poses something better that might be adduced in the particular cases is not the only ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practiced under its cover, all combine to support the rule that hearsay evidence is wholly inadmissible. {The exceptions to the rule are well known — such as cases of pedigree' inscriptions on tombstones, &c] Chief Justice Marshall, in the case of Minor Queen vs. Hepburn, 7 Oranch, 290, emphasizes this doctrine, in saying that "all questions upon the rule of evidence are of vast importance to all orders and degrees of men — our lives, our liberty, our property, are all concerned in the support of these rules which have been matured by the wisdom of ages. One of them is that hearsay evidence is totally inadmissible." This rule was also strictly applied in an election case in the English Parliament, cited in Rogers's Law and Practice of Elections, p'. 172, where " it was proposed that a witness should be sent for to prove a conversation with one Delande, upon the ground that he (Delande) could not be found to be served with the Speaker's writ; but, on argument, it was refused." A greatly stronger election case than the one now being considered, for it is nowhere pretended that the witnesses, conversations with whom are here attempted to be proved, were not within the reach of a writ, but where, in fact, the contestant discloses his knowledge, of. their names, and, in most cases, of their residence. We cite further upon this proposition, (Davis vs. Wood, 1 Wheaton, p. 6 ; Rex vs. Eviswell, 1 Term Rep., 707,) and refer to the strong condemnatory language held by the minority in their report in the case of Archer vs. Allen, in the 34th Congress. The contestant, in his argument before the committee, having at the outset declared that there was but one issue presented by him, and which he proposed to discuss, namely, his right to the seat, and having urged the committee not to consider the question of a return of the election to the people, and the committee having, without dissent, ruled that he had no claim to the seat, but held by a majority vote that the election should go back, we are now called upon to con- sider the case in a point of view not argued by the parties before us, and in doing so it becomes necessary to analyze, to some extent, the mode by which the contestant sought to prove that by intimidation of voters, and by illegal CONTESTED ELECTION CASES IN CONGRESS. 265 votes, his claim to the seat was made out ; because we must suppose that while the majority of the committee did not consider either the fact or the proof on these points of any value in connexion with that claim, they took them into consideration in deciding that the election should be sent back. We regard the contestant's proof, on both these points, as wholly vicious and inadmissible. Lists are filed by him of names of persons in the different wards who, it is claimed, did not vote because they were " intimidated." These lists are obtained, as the evidence shows, by sending men into the various wards, who, dividing them into different districts, make out. separate lists of such per- sons as they are assumed-to have seen or heard from, stating that the persons whose names they thus return were "intimidated." They do not state, except in comparatively isolated cases, that they knew the persons to be qualified voters, or what was the ground or reason of what they call their intimidation. In a vast number of cases they do not know personally those they see ; many they do not even see personally, but get the information they report from their wives, their children, their neighbors, or their landlords; and then, to add to the absurd insufficiency of such proof, in the case of a number of these lists, they are put in evidence by the person who makes up the general list filed from these separate lists thus handed in to him, and the separate lists, in many cases, are not proved by those who collected the information in them, and many of these persons are not even put upon the stand. The contestant claimed that certain alleged intimidated votes should be added to his poll. He afterwards abandoned that position and claimed to use the evidence as a part of the res gestce of the case. The minority remark upon this: The first position was certainly untenable, and we consider the second to be equally so ; for the doctrine of res gestce is clearly laid down in the books, and we hold the rule to be, that when it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did it, proof of what he said at the time of doing it may be admitted to show its true character.' As in an indictment for rape, what the girl said so recently after the fact as to exclude the possibility of her having been practiced upon, has been held admissible as a part of the transaction. — (East's S. C, 415; 1 Stai-kie's Cases, 241 ; 1 Starkie on Ev., 47.) So have declarations, accompanying a purchase of goods, been held admis- sible to show whether a person sought his liviDg by buying and selling. And, in the leading case on this subject, a conversation was allowed to be given in evidence which had passed on the party's return home, after he had been absent nearly two days. — (1 Phillips on Evidence, 198.) The lists of the contestant, to which he proposes to extend this rule, were filed in the case ; one of them on the 19th of January, 185S, (the election being on the 4th of Noveinber preceding,) and the rest of them are not pro- duced until the close of the testimony, which was on the 24th of February, showing an interval of weeks, and even months, between the thing assumed to have been done by the parties and the evidence sought to be given in explana- tion of their motive in doing it, while we find no proof of the time when the statements of the parties are said to have been made ; and we hold all the declarations of these lists to be wholly outside the rule of law cited by the contestant. • # # # # ^y e come now t consider the alleged violence at the polls ; and in this connexion we desire to say, first, that the only cases in our knowl- edge in which elections have been set aside for this cause, are cases where there was riot at the polls, or such tumult as interfered with the election and prevented an ascertainment of the result. This rule is laid down in 2 Hay ward on County 266 CONTESTED ELECTION CASES IN CONGRESS. / Elections, pp. 580 t 581, 582, 584. This was a case where a riot occurred at the polls, that led to the assault of the high sheriff in the execution of his duty, and was of such a character as led to the closing of the poll, and the election was set aside upon this ground and the illegal conduct of the high sheriff. Another case will be found in 1 Eowe on Elections, p. 334, where there was such riot and tumult as to interrupt the election. And another case, in Sheppard on Elections, pp. 105, 106, where it. was held that, if riots are carried to a great extent, accompanied with personal intimida- tion so as to exclude the possibility of a fair exercise of the franchise, they will avoid the election ; as where, in this case, the returning officer, being alarmed by the mob, offered to return whoever the sitting member chose to name, and he indicating himself, the sheriff returned him. And it is further laid down in 4 Selden, pp. 93 and 94, that, " should a gang of rowdies gain possession of the ballot-box before or after the canvass of the votes, and destroy the whole or a portion of the ballots or introduce others into the box surreptitiously, so as to render it impossible to ascertain the number of genuine ballots, the whole should be rejected.''' Now, it is very clear, from the evidence, that no such condition of things existed in the case under consideration. At every one of the polling places, in the dis- trict of the sitting member, the election was uninterrupted ; the votes were all • quietly canvassed ; the judges signed the returns ; they were transmitted, as the law requires, to the governor of the State ; the governor made proclamation of the result, and transmitted to the sitting member a certificate of his due elec- tion. He is therefore, in his seat under all the observed solemnities of the laws of Maryland; and the sole question remaining for our consideration is how far the violence, which it is urged by the contestant existed at the polls, can be held important, in connexion with the resolution of the majority of the committee to return the election to the people. There is a great deal of evidence adduced by the sitting member as to the general character of the election, while it is clear, from the exhibits filed in the case, that the military intervention of the governor of the State caused, as was to be expected, a deep feeling, especially with the American party of the district, and threw into the contest a new and dangerous element of' excitement. It is shown, by the testimony of some 55 -witnesses, that the election was generally very quiet — more so, some of them testify, than for many years previous; that there was no obstruction of the polls beyond the ordinary pushing, crowding, and confusion incident to elections in the city; and that there were no bodies of men in the neighborhood of the polls preventing legal voters from approaching them. The minority report concludes as follows : The undersigned regret sincerely that all our elections are not conducted With the most absolute order and decorum ; but they cannot lose sight of the fact, that an election in this country means the transfer of political power, else- where achieved by the bayonet, through the struggle of the polls ; and that it must needs happen that these conflicts will be sharp and earnest, and that it is a most dangerous rule for this house to establish, that it is to measure the quan- tum of violence that will deprive a people of their great prerogative of repre- sentation, or that it will regulate the police details of our great cities. Let us once establish the precedent that representatives are to be unseated, and the will of the people, especially when expressed by large majorities, overruled, be- cause of violence at the polls, and, while it will put all our city elections in the power of the riotous and rowdy, it will inaugurate a new rule as to future cases as unsound in principle as it will be bitter in its fruits. CONTESTED ELECTION CASES IN CONGRESS. . 267 In closing, we may state, in connexion with the alleged absence of democra- tic voters from the polls, that it is shown by the contestant's own proof that the democratic party nominated no general ticket at the recent election in Baltimore, (Thomas H. Moore, p. 115 ;) while it is proved, on the part of the sitting mem- ber, that it was a common report among the democrats of his district that the election would be contested ; that there was -a democratic majority in the House, and Mr. Harris would be thrown out ; that bets were offered on this result, and it was assigned by many democrats as a reason why they would not vote, being given by some even at the polls, while admitting at the time there was nothing to prevent them from voting. The official exhibits, filed on pages 668 and 669, show that, at the election in the third district of Maryland, in the eight wards of the city, Mr. Harris re- ceived 7,307 votes ; Mr. Whyte received 4,064 votes. In the five county dis- tricts, Mr. Harris received 1,455 votes ; Mr. Whyte received 1,380 votes. Showing a majority for Mr. Harris, in the wards of the city, of 3,243 votes ; in the county districts, of 75 votes ; so that he has a clear majority outside of the whole city vote. For all which reasons we are decidedly of opinion that the sitting member is properly in his seat, and that no case is presented that would make it proper for the House to order a new election. EZRA CLARK, Jr. JOHN A. GILMER. JAMES WILSON. The undersigned agrees with his coEeagues of the minority in the result at which they have arrived. ISRAEL WASHBURN, Jr. The House tabled the whole subject, December 16, 1858 — yeas 106, nays 97. There was no debate upon the merits of the question. THIRTY-FIFTH CONGRESS, SECOND SESSION. Chapman vs. Ferguson, of Nebraska. Where legal votes were cast in certain precincts for the contestant, hut were not counted by the territorial canvassers, held by the committee that the contestant was entitled to the votes. The sitting member having made oath that he knew nothing of the testimony in the case, having been absent from the Territory, the House granted further time for the taking of tes- timony. , There was a preliminary contest in this case over the application of the sitting delegate for further time to take supplemental testimony. The committee made the subjoined report upon the preliminary question : The Committee of Elections, to whom was referred the memorial of Bird B. Chapman, contesting the right of the Hon. Fenner Ferguson to a seat in the House of Representatives of the 35th Congress as a delegate from the Territory of Nebraska, submit as a special report — That the election out of which this contest arises was held in August last, and the result of the said election was not officially announced until the 3d day of September following ; that the contestant gave notice to the sitting member, on the 16th day of September, of his intention to contest his right to a seat, and the response of the sitting member to said notice, dated October 2, 1857, was served on the 10th day of that month on the contestant. 268 CONTESTED ELECTION CASES IN CONGEESS. No notice of intention to take testimony was given by the contestant until the 13th and 14th days of November, when more than one-half of the time allowed by law to take the same had expired, nor until after the sitting member had left the Territory for this city to enter upon the discharge of his duties. The sitting member has made oath that he knew nothing of the testimony taken in this case until he saw it printed in Miscellaneous Document No. 5, of this House, and that he has had no opportunity to rebut and disprove the same.^ Your committee are of opinion that the sitting member, erred in not leaving an acknowledged attorney in the Territory to look after the contest, of which he had been notified ; and were the contestant and the sitting member alone those who have an interest in its decision, your committee might hesitate before coming to the conclusion to which they have arrived. The question to solve is, not simply what these parties have done or omitted to do, but what was the ex- pressed wish of the people of Nebraska, as between these candidates, at their late election * And what is a reasonable time and indulgence, under the cir- cumstances, to obtain proof of that wish 1 As the contestant permitted more than one-half of the time allowed by law to elapse before commencing his proof, he can have but little cause for com- plaint should the period for taking proofs be extended. And as the election has been so recently held, and the contestee averring that he never had any notice of taking testimony, your committee are of opinion that justice to the contestee, as well as to the people of Nebraska, requires that time be given to take further evidence. They therefore recommend the adoption of the following resolution : Resolved, That the parties, the contestant and contestee, in this case, he allowed the fur- ther time of sixty days from the passage of this resolution to take and return supplemental testimony. The House adopted the resolution. The report upon the main contest fol- lows : IN THE HOUSE OF EEPEESENTATIVES, February 4, 1859. j Mr. Wilson, from the Committee of Elections, made the following report: ; That the whole number of votes which were counted by the territorial can^ vassers for the said contestant and for the said sitting delegate was 3,251, of which number the contestant had 1,597 and the sitting delegate 1,654, giving to the sitting delegate a majority of 57. It appears, however, by the statements and admissions of the parties, and the evidence taken in the case, that the votes cast in a number of the precincts, in said Territory were not counted by the election officers, and did not in any way contribute to the result above stated. ' For instance, five votes returned as having been cast for " Judge Ferguson," instead of "Fenner Ferguson," and rejected for that reason by the board of canvassers, the committee have considered as belonging to the sitting delegate,; and have added the same to his vote, making his total vote 1,659. Again : the contestant proved that votes cast for him at the Bellevue precinct were rejected by the board of election because the ballots read " Bird B. Chap- man for Congress," instead of ''For Congress, Bird B. Chapman." — (See Wm. R. Watson's deposition, Ho. Mis. Doc. 5, page 17, 1st sess. present Congress.) Contestant also proves that ten votes cast for him at the Cuming City pre-j cinct were not counted for him by the territorial canvassers, inasmuch as the judges of the election did not return the poll-books of said precinct to the/ county clerk - within three days after the election, as required by law, by reason of which the county clerk failed to certify the same in his abstract to the gov- ernor.— (See certificate of said county clerk, Ho. Mis. Doc. 28, page 34, present; session.) ♦ CONTESTED ELECTION CASES IN CONGRESS. 269 The votes so excluded had been legally cask No question has been or is now raised as to the voters being actual residents of the precinct, and entitled to vote. The committee, therefore, have, in accordance with the precedents established in Richards's case, Bard's case, Spaulding vs. Mead, also Mallory vs. Merrill, Contested Election Oases, pages 95, 116, 117, 159, and 229, added them to the vote of contestant, making his vote 1,608. This total vote given to contestant the sitting delegate has failed to invalidate or question by any evidence before the committee. In fact, the sitting delegate admits the regularity of this vote. On the other hand, it is shown by contest- ant (see depositions of John Reck, Samuel B. Nichols, and poll-list, House Mis. Doc. 5, pages 10, 11, 24, 25, and 31) that at the Cleveland precinct, which is situated 83 miles in the interior of the Territory, and where there are only five dwellings, and they of a temporary character, there were only six persons residing in said precinct who voted at said election, and yet thirty -five were returned as having voted for the sitting delegate, and one for the contestant. It iB true that the sitting delegate has offered evidence to prove that a larger number of voters resided at said precinct; but your committee are of the opinion that said evidence should be taken with great allowance, as the witnesses are principally those who are charged by the contestant with voting or acting illegally at said precinct, which charges, in the opinion of the committee, seem to be established. It is further shown (see House Mis. Doc. 28, page 33)fthat the officers of the election at said precinct were not sworn by any duly qualified officer of the Territory, or any person having authority to administer an oath in said cases, which, by the precedent established in the contested election cases of McFar- land vs. Culpepper, McFarland vs. Purviance, and Scott vs. Easton, pages 131, 221, 273, vitiates the election. Yet the committee, wishing to deprive no citizen of his vote, if actually and fairly cast, have in this only rejected the clearly illegal votes, to wit, twenty-five. At the Monroe precinct, ninety-three miles in the interior of the Territory, 87 votes were returned as having been cast, 82 of which for the sitting delegate and one for the contestant. The committee are of opinion, as is clearly shown by the testimony of John Reck, Samuel B. Nichols, and the poll-list of said precinct, (see House Mis. Doc. 5, pages 11, 12, 24, 25, 32, and 33,) that the most flagrant illegalities and frauds were perpetrated in said precinct, in receiv- ing the votes of persons known to be foreigners, and others not inhabitants of the precinct entitled to vote, and in puttiug on the poll-list as having voted the names of fictitious persons such as "Oliver Twist" and "Samuel Wetter;" and the committee are further of the opinion that not only are said names ficti- tious, but also that they could not have been placed upon the poll-list except by a corrupt collusion of the judges and clerks of said election; and permitting this, of which there can be no doubt, we feel great doubt in giving credit to any part of the entire poll ; that of the forty-five persons who may have actually voted at said precinct, it appears that over forty of them were Mormons, and two-thirds of them were foreigners ; that at the place of holding the election there were only two dwellings inhabited, and they were temporary sod or log shanties; that the election officers at the precinct did not take the oath required by the laws of Nebraska, neither were they sworn by any officer having authority to administer oaths in said cases. The committee have rejected from this poll forty-two, as clearly illegal, fraud- ulent, or fictitious. At the Florence precinct 401 votes were returned as having been cast, of which 364 were for the sitting delegate and 4 for the contestant. The committee find by reference to the return made to the governor by the county board of canvassers who canvassed the vote, (see House Miscellaneous Document No. 5, pages 67 and 68,) that because the polls in this precinct having been kept open 270 CONTESTED ELECTION CASES IN CONGRESS. until after the hour of six o'clock p. m., the laws of Nebraska providing that the polls shall be opened at nine and be kept open until six o'clock p. m., and be- cause votes were cast between the hours of eight and nine in the evening, it was , unanimously recommended by the said county canvassers that this whole poll should be rejected. This they present as a part of the true history of the case and the opinion of those interested in conducting the election. However, it is shown by the testimony of Edward Oreighton, (House Miscel- laneous Document No. 5, p. 23,) that after the hour of five p. m. the judges of said election announced that there were only 271 votes then polled, and by the testimony of Timothy Donovan, page 19 of Document 5, that between the hours of eight and nine in the evening the judges of the election announced that 373 votes only were then polled ; and by same witness, that during the same evening h<2 saw one person vote four ox five times. Also, by same witness and the testi- mony of Oscar B. Selden, (see pages 13, 14, 15, and 16 of Document 5,) that a large proportion of the residents of Florence precinct were Mormons, and that a large proportion of ftie names found on the Florence poll-list he, though an old resident, did not know. It further appears, by a comparison of said poll-list with the one returned from said precinct for the election held one year afterwards, (for said poll-lists see Document 5, page 37, and Document 28, page 28,) that there was a falling off of the vote in that precinct of nearly two-thirds, and that only seventy-eight names of the four hundred and one returned as having voted at the election for v delegate are found on the list of the subsequent year's election. It-is further shown that the officers of the said election precinct were not sworn before any officer qualified by the laws of Nebraska to administer oaths in such . cases. These numerous evidences of illegalities and frauds practiced at this precinct, in the opinion of the committee, justify the rejection of the whole poll. If, how- ever, it should be considered that the facts above set forth are not sufficient to set aside the entire poll, still the preponderance of the evidence shows that the number of votes cast at said precinct after the hour of six o'clock p. m. for the sitting delegate, and the many other fraudulent and spurious votes there and at other precincts recorded for him, clearly entitle the contestant to the seat. The committee deduct the four votes cast for the contestant at the Florence precinct. They also deduct from the vote counted for the sitting delegate at. said precinct, to wit, 364, which, with the twenty-five rejected from the Cleveland poll, and forty-two from the Monroe poll, gives to the contestant a majority of 376. - The committee therefore recommend the adoption of the following resolution : Resolved, That Bird B. Chapman is the legally elected delegate to the thirty-fifth Congress from the Territory of Nebraska, and is entitled to his seat as such delegate. JOS. WILSON. JOHN A. GILMER. EZRA CLARK, Jr. JAMES M. CAVANAUGH. Without adopting all the arguments of the committee, we agree in the conclu- sion to which they have arrived. L. Q. C. LAMAR. J. W. STEVENSON.. MINORITY REPORT. ' February 4, 1859.' , Mr. BoYCE, from the Committee of Elections, submitted the following views of the minority : The facts of the case sufficiently appear from the report of the majority of CONTESTED ELECTION CASES IN CONGRESS. 271 the committee. We think it only necessary, therefore, to allude to the points of difference between the majority and minority of the committee. Those points of differen'ce are in reference to the Cleveland, the Monroe, and the Florence precincts. In order to a correct understanding of these points of difference a brief analysis of the evidence is proper. In reference to the Cleveland precinct, the contestant introduced the follow- ing evidence : Cleveland precinct. John Reek knows every resident of Cleveland precinct ; six of those on the poll-list were then residents of the precinct ; most of those on the poll-list resided at Florence, in another county. O. B. Selden said eight of the voters at Cleveland precinct lived at Florence. — (Page 16. ) Samuel B. Nichols said: "I first visited the Cleveland precinct; I inquired of every person I could see, of whom I thought I could get any information, aa to the voters in said precinct at that election ; I went to the clerks and one of the judges of election and asked permission to take a copy of the poll-list ; I failed to obtain one ; I made the same inquiries of them as of others relative to the number of voters ; those of whom I inquired made con- tradictory statements as to the number ; the highest number which any one gave as living in the Cleveland settlement on the day of election was sixteen; they claimed that there were a number living on Shell creek, in the precinct ; all that I could find from any reliable in,- formation as residents in the whole precinct, either on the day of election or when I Was there, were ten ; I found living at the Cleveland settlement only four men who claimed to have voted at said election ; there were only seven men living in the whole precinct, and only six of them claimed to have voted ; this number included all who lived on Shell creek ; I went to Shell creek and found all the houses and made inquiries of all the persons I could find as to the number of persons then living on Shell creek, in Monroe county, or who lived there at the time of the election ; the number of adult males then living there was three, and the number living there at the time of the election was four, as stated by all persons of whom I inquired." * Ferguson's testimony. , Kenedy says he voted at Cleveland, "my place pf business, and I considered it my resi- dence. My family temporarily in Florence. The Hotel Company had eighteen hands at work ; with one or two exceptions they were young men who made their homes wherever "they were at work ; one of the married men had made a claim before moving out. They all, I thought, had a right to vote, being, long enough in the county. Acquainted with a majority of voters ; thinks there were from thirty-five to forty legal voters at Cleveland precinct ; full vote not cast." J. M. Mentzer. He said : Went to Monroe county ; settled in a tent near Cleveland ; made a claim in July. Believes none but legal votes polled ; is an editor. ., A, B. Pattison was probate'judge in Platte county; surveyed the town of Cleveland ; • thirty-five inhabitants in Cleveland precinct in August, 1857. There were twenty or twenty- five votes that I know of. .■ G. W. Stevens resided in Cleveland at the election in 1857. Knows of no illegal voting. Well acquainted with the inhabitants of Cleveland precinct ; there were from thirty-five to forty voters in the precinct ; the full vote was not polled at that election. H. H. Hill only voted once. R. W. Steel. A company went out to Cleveland, some to work, and some to settle, about the ]st of July; among these persons who went out at this time, and talked of settling there, were the eight persons objected to by Mr. Selden as not being residents. Kenedy, Weech, Mentzer, and others went to Cleveland to settle permanently. In reference to Moiiroe precinct the evidence for contestant is as follows: John Reck. Of the names on the poll-list about seven persons resided in Monroe settle- ment. Oliver Twist and Sam. Weller voted. One-third Mormon Americans. Samuel Nichols visited the precinct after the election. Says: " I then went to Monroe precinct, about ten miles distant from Cleveland settlement, and stopped at the Monroe settlement. When the election was held for that precinct I asked and obtained permission of one of the judges of election, and of one of the clerks, to take a copy of the poll-list of said election. I found only five of the persons whose names are on the poll-list living in Monroe settlement. There were only two dwellings inhabited then ; one was a sod shanty or house, the other a small log," temporary, shanty. From there I went to the Mormon set- tlement called Beaver, or Genoa, on Beaver creek, in Monroe settlement. I found there the leaders or principal men of the Mormon settlement^ or colony, viz : Messrs. Allen, Henry Peck, Nathan Davis, and Charles Cooper, who was one of the judges of election on the 3d day of August. I read over to them the names on the poll-list, and asked them to tell me each man whom they knew as I read over the names. I counted the number whom they stated that they knew, and the number was forty-five, which all or any of them knew. I 272 CONTESTED ELECTION CASES IN CONGRESS. asked them if they knew every one who lived in their settlement; they said they did... I then read over the names on the poll-list again, and asked them to name each man as I read over the names who lived in their settlement ; they named foity. I counted them. I asked if they knew how many men living in their settlement voted at the last election. They said they did ; that there were just forty. I asked for whom they generally voted. They said they all voted for Judge Ferguson. Kenedy was acquainted with the Mormon settlement; thinks they were 120 voters; no Mormon trains about time of election ; his opportunity of knowing is as good as Mr. Reek's; full vote not polled. G. W. Stevens considerably acquainted in the Mormon precinct ; thinks 100 or more voters., H. T. Hudson, elder in the church of the Latter Day Saints, well acquainted in Monroe precinct ; about 100 voters ; told Chapman the election was not fair ; thought so until he got better information. There was an eccentric individual generally known by the name of Samuel Weller, and I should not wonder if he voted under that name. Charles H. Whaley, probate judge of Monroe, was pretty well acquainted ; thinks there are about 100 voters in Monroe and Genoa; thinks the election fair; did not know of one illegal vote ; voted for Chapman ; challenged some of the voters. W. P. Pierce, manager of election ; pretty well acquainted ; thinks there was no illegal voting. E. P. Kimhal, clerk of election; pretty well acquainted; thinks the election perfectly fair ; thinks there were more than 87 legal voters in the precinct then ; the contest for county seat made each side vigilant in challenging votes. i Florence precinct. — Contestant's evidence. T. Donovant said: " Mormon Tom voted four or five times ; " heard one of the judges of election, between eight and nine o'clock p. m., say that 373 votes were polled. E. Creighton was told by one of the judges of election, "about five o'clock or after," that 271 votes were polled. The poll at Florence, at election in August, 1858, was 159. Ferguson's evidence. E. W. Steele, one of the managers of election, says not over ' ' fifteen votes were polled after 6 o'clock." The negro sworn to by Donovant as voting offered to vote, but was re- jected ; does not believe Mormon Tom voted more than once ; there was no Mormon train near at the time of election, and none such voted; knew all who voted, except those from Saratoga ; there were about thirty of them ; most of them voted for Thayer ; some perhaps for Chapman ; does not think any of them voted for Chapman ; should not believe Dono- vant on oath ; believes he swore falsely in a pre-emption claim ; had that reputation. Florence. Dr. Malcomb. No Mormon train ; all left before ; no persons of such train voted. The vote polled at Florence in the election August 2, 1858, was 159. Dr. Harsh, manager of elections at Florence. Polls closed about 7 ; we waited for some voters to come in from prairie ; "they were legal voters — about 15." To oust the sitting member, it is necessary to throw out the Florence pre- cinct. We have not felt at liberty to do this, for obvious reasons. We have deducted the fifteen votes polled after 6 o'clock. The result at which we ar- rive is, that the sitting member is elected by 34 majority. We reach this by the following process : For Ferguson, as returned by canvassers 1, 654 Add votes not counted 5 1,659 Deduct votes at Florence after 6 15 Deduct Weller and Twist 2 17 1,642 Chapman, as returned by canvassers 1, 597 Add vote not counted 1 Cumming City vote not counted 10 1,608 Majority for Ferguson 34 CONTESTED ELECTION CASES IN CONGRESS. 273 We therefore recommend the adoption of the following resolution, viz : Resolved, That Fenner Ferguson is the legally elected delegate from the Territory of Ne- braska. W. W. BOYCE, I. WASHBUKN, Jk. The subjoined extracts from the brief debate on this case indicate its char- acter : Mr. Washburn, of Maine. The election in Nebraska was held on the 3d of August, 1857. Notice of contest was given within the time prescribed by the law of 1851 . ' The an- swer was filed on the 3d October. The contestant, although the field is open for operation, does not serve his notice of testimony till November ; and he then cites the sitting delegate to appear and take testimony on the 23d and 24th of November — within two weeks of the time when he was to take his seat on this floor, under the certificate that he held from the authorities of the Territory — although there had been forty or fifty days before that in which the testimony could have been taken had the contestant been disposed to give the sitting delegate a fair opportunity of being present and meeting that testimony. But the contestant, after the sitting delegate had left the Territory on a visit to New York, and without an intention of returning until after the close of ike first session of this Congress, caused a notice to be left in the house- where Mr. Ferguson had formerly resided, but where he did not then live. One notice was left in the hands of a party who was there but tran- siently, and whose residence was some ten miles distant. Another notice was subsequently left at the same house, in the hands of the person residing in, and the tenant of, the house ; .but neither of these gentlemen, as appears by the affidavit of Mr. Ferguson, was his agent or attorney. And when one of them did offer to appear — inasmuch as the notice had been left at his house — and to cross-examine witnesses, the magistrate refused to permit him to do so, unless he could show that he had been authorized to appear by the sitting delegate ; and so all cross-examination was precluded. A citizen of the Territory, whose case was on trial — for the people are interested in these election questions — was refused permission to examine the contestant's witnesses. Mr. Clark B. Cochrane. I desire to know whether, before Mr. Ferguson left the Ter- ritory to come to Washington, he received personal notice that his election would be con- tested 1 Mr. Washburn, of Maine. He had received notice of the contest. It is in evidence that while he was in Washington, on his way to New York, he here met the contestant, and told him that he was going to New York, and should not return home until after the first session of Congress. The contestant, therefore, knew that the sitting delegate was not in the Ter- ritory, and that notice left for him there would never reach him. The contestant might then have notified Judge Ferguson, or ascertained where he would have the notice left. Mr. Wilson. I wish to ask the gentleman whether the notice of contest was not served within sixteen days after the election? Mr. Washburn, of Maine. The answer to the notice of contest was dated on the 2d day of October ; and on the 12th day of November, one month and ten days after the party might have proceeded to take testimony, he gave notice that he wo"uld do so on the 23d of Novem- ber, within two weeks of the time when the sitting member was bound to be here. He might have taken that evidence before ; and I submit whether he should not have done it if he desired to give fair play ; for then the sitting member could have been present and had an opportunity of cross-examining witnesses. Mr. Maynard. I wish to ask the gentleman from Maine whether, as .matter of fact, without reference to the formality of the notice served, the testimony shows that the contestee received actual notice or not ? Mr. Washburn, of Maine. It appears from his affidavit that he knew nothing about it ; and it was because of this fact that the House, at the last session, passed a resolution author izing both of these parties to go home and take testimony ; and I supposed, at the time, that the contestant would go home and give notice ; and if he desired to bring this testimony here again, he would cause it to be taken over again, and give the sitting member an opportunity to be present at the caption. Mr. Speaker, not only is all this testimony ex parte, but a great part of it is composed of mere affidavits ; and most of that which was alluded to and commented on by the gentleman from Indiana was in the form of affidavits sworn to before a notary public, who, the gentleman himself says, has no right to administer an oath in the Territory of Nebraska. And, sir, there is not a single fact, upon which he relies for the material points in his case, but what is hearsay. There is not a single fact of importance touching the precincts of Florence and Monroe, but what comes from the declarations of third parties. There is not a scintilla of testimony here which is not of that character ; whereas the rebutting testimony is that of wit- nesses who lived within the precinct, and who were sworn and cross-examined, and state facts within their personal knowledge. The testimony of the contestant is, as I have said, largely composed of mere affidavits ; and such, under the law of iSStl, cannot be received at all as H. Mis. Doc. 57 18 274 CONTESTED ELECTION CASES IN CONGRESS. evidence, and no one has contended more strenuously than the gentleman from Indiana that this kind of testimony cannot safely be received. In the case of Campbell^ and Vallan- digharn last year, it was contended, on the part of Vallandigham, that the testimony of wit- nesses to the declarations of certain parties as to whom they voted for should be received. The majority of the committee, I believe, were of opinion that that testimony might be re- ceived, upon the ground that, the declarations of men at the time they deposited their votes were a part of the res gesta, and must be received from the necessity of the case, as there might be no other way of proving how parties voted. But, sir, there is no such necessity or excuse for it in this case, not even in reference to the allegation made by one of the judges of the election as to how many votes were cast at the Florence precinct before a certain hour of the day, because he was a legal witness, and might have been examined ; in fact he has been, I believe. The statement which he is reported to have made is mere hearsay, and not admissible upon any principle. And the same is true in regard to the declarations of Nichols, and somebody else, who went over from Omaha to Monroe, and made inquiry as to how the vote stood there, and how many votes had been received; and then came back and retailed, in the form of affidavits, the statements of others, upon which we are asked to unseat a mem- ber of this house. I desire to call the attention of the House to the position which the gentleman from Indiana took last session; and bear in mind that this evidence, which he contended should not be re- ceived then, was the admission of a party, made at the time he voted, and was a part of the transaction. Says the gentleman from Indiana, in the case of Vallandigham vs. Campbell : "Such is the evidence produced to prove that twelve negro votes were cast for the sitting member in Oxford township ; such is the evidence on which we are called to decide the rights of a hundred thousand people. It is mere hearsay ; it is no evidence. He does not state, of his own knowledge, any fact, or what means he had of knowing. He merely retails the loose statements of bitter partisans." Mr. Washburn. Again, he says : "Another witness testifies, in regard to a voter, that the father of the voter was a repub- lican; that the family were republican; that the son voted; and of course it followed that his vote was cast for the sitting member. Is this satisfactory evidence to the legal gentle- men on the other side of the House? Is it evidence at all ? Most certainly not." And yet, sir, it is entirely upon evidence of this kind that the sitting member must he unseated, if that shall be the judgment of this house — nay, upon worse evidence ; for the reason for admitting that does not apply in this case at all. Mr. Wilson. I stand now by every word I said then, but the House decided otherwise ; and I presume that at least the other side of the House will be bound by the rule which they established in that case. More than that, there is a difference between that case and this. Here is a declaration made by a judge of the election, at the very time the election was proceeding ; and it is very difficult for me to determine whether this is not part of the res gesta, and not hearsay evi- dence. But still, I put this case upon the broader ground that the fact that the polls were kept open contrary to law, from six until nine o'clock, vitiates the entire election. Mr. Washburn, of Maine. If the gentleman has changed his opinion since last session, I have not. I maintain that hearsay evidence in all cases is unsafe, and ought not to be resorted to or relied upon. The gentleman from Indiana last session recited from the case of Archer vs. Allen, as follows : ' ' There is some testimony that certain persons said that they had heard another man say that he had voted for Mr. Allen, when he had no right to vote. But are we to disfranchise a congressional district of a hundred thousand inhabitants on hearsay testimony that would not be received in a magistrate's court when a shilling was in controversy 1 " — -4pj». to Cong: Globe, 1st sess. 34tA Congress, vol. 33, p. 929. And again, in the same report : "Next, as to Alfred Cowden, the only evidence is that he was heard to say that he had voted at the election ; that he had voted for Allen ; that his vote had elected him, &c; and that he was not of age at the time. This evidence, the undersigned are clearly of opinion, is hearsay evidence of the worst sort. It is no evidence at all. It would not be received as evidence in any court, and it never should be received in cases of contested elections before this house ; for, by the admissibility of such evidence, it would be the easiest matter in the world to set aside any close election, and defeat the will of the majority, by getting persons to say that they had voted illegally for the man whom, perhaps, they had used their greatest efforts to defeat. Falsehoods, where there is no solemnity of an oath, are often resorted to in elections in canvassing before the people against a candidate before an election, as all of us, perhaps, well know ; and who that would tell a lie before an election, would not do the same thing after it, if he could thereby effect the same object ? " So, sir, in a case of this kind, where it is only contended that the testimony must be re- ceived from the necessity of the case, because there is no other way to get at the facts, if the doctrine is sound that the testimony cannot be received, much more is it true that there is no reason for its admission where the declarations, if made, were made in open meeting and must have been heard and known by others. It was a mere casual remark of a judge of election not made under oath. Sir) is it to be admitted here as safe ground for us to proceed CONTESTED ELECTION CASES IN CONGRESS. 275 upon, that a man may be unseated in this house because a judge of elections may have falsely, perhaps corruptly, made a statement during the progress of an election in reference to it ? Is that a ground upon which gentlemen can expect us to vote against the sitting member ? Are our rights dependent on such slippery foundations as this ? Mr. Clark B. Cochrane. For the purpose of deciding my own vote, I would ask the gentleman whether these facts set forth in the report of the majority of the committee, the facts concerning the precincts of Florence, Monroe, and Cleveland, depend entirely upon ex parte evidence ? Mr. Washburn, of Maine. Entirely, and upon testimony taken, as I have stated, under notices left at what was called the last and usual abode of Judge Ferguson, at a house vacated by him before they were thus left and in the possession of another man. Mr. Boyce. In a case of this character, it seems to me that a sitting member should not be dispossessed of his seat upon doubtful testimony. The party contesting ought to make his case out clearly. Questions like this, too, ought to be decided according to justice and their merit, without paying too much attention to mere technicalities. Several technical points have been raised here and strenuously insisted on by the gentleman from Indiana, [Mr. Wilson.] It has been said that the managers of the election were not sworn in by the proper officers. Who swears them in 1 Notaries public. I am not clear that notaries pub- lic had not a good right to swear them in. What does the law say ? That the managers shall be qualified by subscribing to the following oath, ' by any person authorized by law to administer oaths.' The question of notaries public administering oaths was not mooted in the Territory at the time of this election. Since then a decision has been made, in an attach- ment case, that a notary public cannot administer an oath necessary to institute the proceed- ings, and that their power to administer oaths is confined to commercial matters. I see no reason why a notary public could not swear in the managers of the election. It seems to me that any person who had a right to administer oaths could have sworn in these managers. The law required the managers to swear that they " would faithfully discharge the duty of inspectors of elections, according to law, and the best of their ability." On motion of Mr. Cochrane, (February 10, 1859,) the House laid the whole subject upon the table — ayes 99, noes 93. Note. — The debate upon this case will be found in vol. 38, part 1. For the report : Mr. Wilson, page 914; Mr. Gilmer, page 941. Against the report : Mr. Washburn, pages 916, 942; Mr. Boyce, page 919. THIRTY-SIXTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Gilmer, North Carolina. Mr. Stevenson, Kentucky. Dawes, Massachusetts. Gartrell, Georgia. Campbell, Pennsylvania. Stratton, New Jersey. Boyce, South Carolina. McKnight, Pennsylvania. Marston, New Hampshire. Howard vs. Cooper, of Michigan. . The sitting member asked an extension of time to take testimony. The House refused. Upon the main contest, where the law or the custom fixed the .election at a certain place, and it was held at another, two miles distant, the committee rejected the vote. The law requiring that the board of inspectors shall consist of three persons, and but two officiated, the vote was rejected. Under the law of Michigan, to be entitled to vote, a man must have come into the State and township, or ward, with the intention of making it his permanent residence. Gross irregularities and palpable violations of law in conducting, an election in a ward should cause the exclusion of the entire poll. 276 CONTESTED ELECTION CASES IN CONGEESS. IN THE HOUSE OF REPRESENTATIVES, March 15, 1860. Mr. Campbell, from the Committee of Elections, made the following report: That they have considered an application made by the sitting member to them to ask of the House, in his behalf, leave to allow further testimony to be taken, pursuant to the proviso in the 9th section of the act of February 19, 1851. This being an application amounting to a continuance of the cause until a future day, it was deemed proper to settle it before deciding upon the merits of the case as presented in the issues, the allegations, and proofs of the respective parties. Mr. Cooper presented this application on the 5th of March instant, more than sixteen months after the election was held, and more than fourteen months after notice of contest ; more than thirteen months after his answer had been served upon the contestant ; more than eleven months after the time for taking testimony under the law had expired, and after one-half of the time of the service of the Congress had elapsed; he never having previously examined any witness or taken any testimony in his own behalf, or given any notice of his intention or wish to do so. And yet it appears he was present by counsel more than eleven months before he made this application, at the taking of all the testimony in the case, and cross-examined every one of contestant's witnesses, but offered none of his own. If this does not present a clear case of laches on the part of the sitting mem- ber, the committee are at a loss to know what conceivable state of facts would make one. The memorial or application of the sitting member is accompanied by twenty- nine ex parte affidavits, (taken without notice to contestant,) and embraces two distinct requests, urging that one or the other be granted, viz: First. That the affidavits be received as evidence in the cause, and made part of it ; or, if this cannot be done, then — Secondly. That such time be granted as will enable the sitting member to take the necessary steps to secure the testimony of the witnesses embraced in the affidavits. The contestant resisted this application, and read and filed an argument with the committee. The memorial, the said affidavits, and the argu- ments are herewith submitted. In support of the application, the sitting member seems to rely mainly on the fact that the testimony in the cause was taken during the last part of the time allowed by law for examining witnesses. But the act of Congress referred to provides for taking testimony by both parties at the same time, by requiring the notice of contest and answer to state fully the grounds upon which the parties rely, and also that ten days' notice of the time and place of taking testimony, and the names of all witnesses, besides authorizing both parties to appear by agent or in person, as they may see proper. In the case of Vallandigham vs. Campbell the committee said, (and they were sustained by the vote of the House, ) " However extensive the time covered by one party in proposing to take testimony, it in nowise precludes the opposite party from proceeding at the same time to take it in his own behalf." In that case testimony had been taken the very last day by the contestant, and his notices not only covered almost all the time allowed by law, but he had so laid them one upon another as to employ " the full period of sixty-six days." In the case now under consideration only twenty-two days of the sixty allowed by law were consumed by contestant for all his notices and the taking of his testimony. The sitting member could have had the exclusive use of thirty-eight of the sixty days, and he was in no way "precluded" from proceeding to take testimony in his own behalf during the other twenty-two days covered by the CONTESTED ELECTION CASES IN CONGRESS. 277 operations of contestant. The committee regard much that is stated in the sub- joined affidavits as irrelevant and immaterial. If they were legal testimony, they are not aware that they contain any newly discovered evidence, or one single fact that could not, with ordinary diligence, have been as fully and as easily proven in March, 1859, as in March or April, 1860. In the case above referred to of Vallandigham vs. Campbell the committee express the " opinion that if cither party to a case of contested election should desire further time, and Congress should not be then in session, he should give notice to the opposite party, and proceed in talcing testimony, and preserve the same, and ask that it be received, and, upon good reason being shown, it doubtless would be allowed ; but it seems too much to grant in this case, for either of the reasons stated." This report, as already stated, received the sanction of the House. In the case now under consideration there was not only no attempt to take any testi- mony during the time fixed by law, and none after its expiration and before the meeting of Congress, but this application is not made until some weeks after the organization of the House. To grant such postponements and protracted appointments for taking additional testimony, after the meeting of Congress, and after both parties have had equal and sufficient opportunity to present their full case, is practically to nullify the law, to render the right of contesting a seat in Congress useless and nugatory. If such application rests upon no stronger reason than the laches of the party making the same, it should be promptly rejected. To do otherwise is to disregard the rights of parties and constituents, to trifle with the privileges of the House, and to make the labors of your committee interminable and useless. It is due to every interest concerned that the rights in dispute should be settled and parties held to reasonable dili- gence, under the laws of the land, in the prosecution and presentation of their respective claims. Your committee are therefore of opinion that no further time should be allowed to take supplemental testimony in the case. At the request, however, of the sitting member, in order that the question may be presented to the House, your committee report the following resolution : Resolved, That it is inexpedient to allow further time to take testimony in the' case of William A. Howard, contesting the right of Hon. George B. Cooper to represent the first congressional district of Michigan in this house, as asked for by the sitting member. The extracts which follow are from the debate in the House upon the pre- liminary question : Mr. Stevenson. This case presents the point not presented in any of the cases which have hitherto occurred here and are referred to as authority. The application of the sitting member is not to take testimony on the merits of his case. That it was his duty to do within the sixty days. He is willing to stand on this testimony of the contestant if you will expurgate the false testimony or allow time to rebut it. All he asks is an opportunity to show that Edgar and one other witness are unworthy of belief. If you will allow him this privilege he is willing to stand upon the testimony as taken. Where is there a case on record where such a privilege was refused 1 The gentleman from Pennsylvania cites me to the case of Newland vs. Graham, in which Hon. Lynn Boyd presented his report against a similar application. That case occurred before the act of 1851 was passed ; yet the gentle- man based his opening argument upon the fact that these parties had commenced proceedings under the act of 1851, and he is for holding them to it. The logical sequence of his argu- ment is, that as the case cited occurred long before the passage of the act of 1851, it cannot become authority in its construction. Instances of this indulgence asked for here are frequent. Against the precedent I might cite Vallandigham vs. Campbell, the Nebraska case of Chap • man vs. Ferguson, during the same Congress, where time was given for the taking of further testimony upon much slighter grounds than those presented in this application. # * * * * jj as j ne sitting member been guilty of any laches 1 I say that he has not. If any delay has occurred it is attributable to the contestant, who ought not to be permitted to avail himself of his own wrong. I will not impute any improper motives to the contestant 278 CONTESTED ELECTION CASES IN CONGRESS. for the late day fixed for his testimony, but I will say it should Dot work injustice against popular rights. Is it not a remarkable fact that a seat should be desired on this floor upon the testimony of a witness who is proved so clearly by the affidavits in this record to be un- - worthy of belief, under indictment for felony, and his testimony taken at a period so late as not to be rebutted? Is it not still more remarkable that the sitting member, with this evidence of Edgar's character, should be denied the privilege of impeaching by the popular branch of the American Congress ? On yesterday time was given Williamson in his contest with Sickles, although not a requisite had been complied with, and to-day similar indulgence is to be refused because he had not taken testimony which he could not read, and has not pursued a greater diligence than is required by the holder of protested commercial paper. The gentleman from Massa- chusetts [Mr. Dawes] said yesterday, in favor of giving time: ' ' Has he failed to understand that we put this case upon the fact that it was impossible for the contestant to obtain process of court ? Does he not understand, at this late day, that we put this case upon the ground that the contestant understood, and his counsel understood and believed, and lawyers to this day believe, that they could not be brought within that statute?" He could not get legal process ? Neither could Mr. Cooper. If that position was true yesterday, it is equally so to-day. There is another point in this case which the majority of the committee seem to have overlooked. The statute of 1851 requires that subpoenas shall be issued five days before the day fixed for taking testimony, and shall be returned with the depositions. These notices of contestant were served on the 11th and 16th, for the 21st and 26th. If the sitting member had desired to impeach any of this testimony, he could not have coerced the attendance of witnesses, as five days would not have elapsed after the taking of such testimony and the 26th March, when the time expired. Cooper could have gotten out no process to rebut testimony taken on the 22d, 23d, 24th, 25th, or 26th, even if Howard had waived notice. Mr. Wilson. ***** Now, sir, I have said a great deal more upon this subject ' than I intended, but it is only preliminary to a statement of my position upon this case. I would not grant any time for the taking of testimony to a party who stated his own case so vaguely as not to entitle him to an investigation. This, I think, is the case with the con- testant. I will give some of the specifications in his notice : " That at the election in No- vember sundry ballots were cast." Again : " Sundry ballots were counted by the judges." Again : " Sundry persons were permitted." Again : " Sundry persons were refused to vote for him," &c. Now, surely no legislative body should institute an inquiry upon such alle- gations as these. If the names of the voters had been given, it would have been incumbent upon the gentleman from- Michigan, the sitting member, to take testimony to prove that they were legal voters. If the application were now made by the contestant to take further evidence, I certainly would not feel disposed to grant it ; because I should consider that his notice was go vague and indefinite that no evidence ought to be allowed to be taken under it, I do not mean to say that this objection applies to all the specifications in the notice, because four or five of them may have been reasonably certain ; though even in the case where I think there is a reasonable minuteness of specification, the ground of objection to them is that they are insufficient in point of law ; as where he alleges, for instance, that the inspectors of election in some cases were not sworn, which could hardly be a ground for throwing out the votes received by them. I felt myself constrained to vote yesterday against the application of the contestant for the city of New York ; because, admitting the general correctness of everything stated in his notice of contest, I would not have gone into any inquiry at all, because the complaint was altogether too vague and indefinite. It was a charge to which the sitting member might properly have demurred. Now, while I would not and could not grant time to the gentle- man from Michigan to take evidence to contest the seat of the sitting member, the House will readily see that, after such evidence has been taken, after the Committee of Elections has gone on to consider such evidence, and held it proper to be received under the notice of contest, it becomes a question whether the sitting member shall take further evidence, which, if he were the contestant, I would refuse him, but which cannot be refused the sitting mem- ber unless the House is ready to say — and I presume they are not ready to say so — that they would exclude all the evidence taken under this notice. As he has not had an opportunity to furnish such evidence, I say I would vote to give him time ; and that, too, without the slightest inconsistency between my vote yesterday and my vote to-day. I refused to vote for time yesterday to one petitioner. I should refuse to-day to vote for time to the other petitioner. I would not allow a man to take advantage of his own wrong. I would not allow a petitioner to give a vague, indefinite notice of contest, and to make that an occasion for desiring further time to take evidence. Mr. Campbell. Will the gentleman from Virginia allow me a moment? He is laboring under a mistake. The committee has not decided on the testimony submitted by the parties. This is a mere preliminary motion. Whether the evidence will be received or rejected depends on future action. We have not yet decided whether there is any competent evi- dence ; or whether it is all competent. We have had no action yet. CONTESTED ELECTION CASES IN CONGRESS. 279 » Mr. Cooper here made a remark which was inaudible at the reporter's desk. Mr. Millson. It may be true, Mr. Speaker, that the committee has not yet come to any conclusion as to the character of the evidence ; but the very failure of the committee to report back the petition of the contestant, with the request to be discharged from the further con- sideration of the subject, shows that they are entertaining it. Why report this preliminary resolution against taking further evidence ? If they regarded the evidence of the petitioner as insufficient to found a claim upon, why have they not reported that fact to the House, and asked to be discharged from the further consideration of the subject ? I infer, therefore, from the circumstances, that they have made no such report, and have not asked to be discharged ; that they are proceeding to consider this question as a pending question, founded on that notice ; and therefore I will not by my vote deprive the sitting member of the opportunity of collecting such testimony as he may be able to produce in answer to the complaint of the petitioner ; because, although I might not deem it necessary that he should take any evidence at all, yet I have no right to substitute my individual impression as to what should be done, for the deliberate judgment of this whole body. Now, sir, I think there is a very strong case made out for the indulgence asked for. The sitting member states that he desi-res to confute and contradict certain statements made by one witness in particular, whose name has been referred to as a Mr. Edgar ; and it has been asked why he did not impeach that man on the reception of the notice that his evidence would be taken 1 That question was very fully and conclusively answered by the gentleT man from Kentucky, [Mr. Stevenson ;] but 1 desire to make an additional answer. It is, that I never heard of any proceeding to impeach the veracity of a person on the mere recep- tion of a notice from some party to a controversy that that person would be examined as a witness. And I do not think I hazard much, as a lawyer, in saying that any man who should venture to take testimony impugning the character of a citizen as unworthy of credit, in a case in which he had never been sworn as a witness — in a case where, perhaps, the person himself might never choose to be sworn as a witness — would perhaps expose himself to an action for slander or libel, as the calumny may have been oral or written. In this case, Edgar might never have chosen to go forward as a witness. What right had Cooper, the sitting member, to conclude that because the contestant, Mr. Howard, gave him notice that Edgar would be a witness, therefore Edgar would indeed be a witness ; that he would consent to be a witness ; and that, as such witness, he would commit perjury ? It might have been that Edgar, from his own knowledge of his bad reputation, might have refused to subject himself to examination ; and it would he altogether premature in the other party to take evidence to confute the probable or anticipated statements, or to blacken the character of one who was a mere possible witness, and who never had been examined in the course of any judicial investigation. . Mr. Campbell. In the case of Vallandigham vs. Campbell, immediately after the con- testant had closed his evidence on the last day allowed by the act of Congress for taking it, Mr. Campbell gave the gentleman from Ohio notice that he would proceed to take the evi- dence of witnesses to contradict the testimony which the contestant had submitted, and the honorable gentleman denied him that right, refused to pay attention to the notice, and told him that he might go on and indulge himself in that little pleasantry, if he saw proper, but that it would not be competent evidence. The minority of the committee in that case thought that the sitting member had used all diligence ; that immediately, as soon as the evidence of the contestant was brought to his notice, he had shown a desire to go on and take testimony to contradict it, and that he ought to be allowed to take further proofs. But the majority of the committee overruled them, and this house sustained the majority. * * * In summing up the argument upon the one side and the other, let me call the attention of the House to a broad rule which should govern them in all these cases, and which, as long as I am a. member of the Committee of Elections, I hope to recognize for my government before that committee. That rule is this : that wherever a party comes within the plain terms or meaning and spirit of the act of 1851, he should be governed by its pro- visions. He must show a strong case, - indeed, to authorize this house'to take his case out of the wholesome enactments of that law. But where the contestant has not been brought within the provisions of that act, then it is for this house, at its discretion, to grant further time or not, as to the House may seem proper. It was acting upon that rule that the majority of the committee agreed to give Mr. Williamson further time, and it is acting upon that same rule that they have refused to give Mr. Cooper further time, Mr. Williamson's case being outside of the act, and Mr. Cooper's within it, as is admitted by every member upon this floor. But the distinguished gentleman from Virginia [Mr. Millson] makes the point that it was necessary for the contestant to give notice of the names of the witnesses, and that the sitting member could not impeach the veracity of a witness until he knew what that witness would testify to. Mr. Speaker, there is no such rule of law governing any of our courts or any of the tri- bunals of the country. The opposite party, in all proceedings in a court of justice, is not even entitled to know the names of the witnesses subpoenaed on the other side. This is the general practice ; there may be exceptions to it. I have not now in my recollection any court by the rules of which it is necessary to give the opposite party notice of the names of the witnesses to be introduced on the trial ; and I never heard of a rule of practice which 280 CONTESTED ELECTION CASES IN CONGRESS. would enable one party to move for a continuance, to afford an opportunity of impeaching^ the veracity of the witnesses called on the other side. But I wish to refer the gentleman to the act of Congress of 1851 in this particular. The act of Congress provides that ten days' notice shall be given of the names of witnesses whom it is intended to examine in the case. What was that wholesome provision put in that law for 1 Why, to enable the opposite party to bring testimony to impeach the testimony of such witnesses of their veracity ; and, in requiring that notice, the act of 1851 goes, in its equitable spirit, beyond the practice of the courts. I refer the gentleman from Virginia to the fact that the sitting member had notice, ten days previous to the examination of Edgar, that he would be called as a witness in the case, and had ample opportunity to impeach his veracity if he saw proper to do so. The fact that he did not impeach him shows that he considered him at the time a responsible and worthy witness, and one that could not be successfully impeached, or that his testimony was deemed unimportant. But my colleague on the committee, the distinguished gentleman from Ken- tucky, [Mr. Stevenson, ] says, we propose forcing through a case of this kind on the evidence of a, felon. Why, Mr. Speaker, there is not a spark of evidence in this case going to show that this Mr. Edgar is not as worthy and responsible a citizen of Michigan as any witness examined in the case. The gentleman from Kentucky calls my attention to certain ex parte affidavits produced by the sitting member for the consideration of the Committee of Elections, sworn to at the eleventh hour ; ex parte statements taken without notice to Mr. Howard, without notice to the witness Edgar, and without giving him an opportunity to be heard in his own defence ; the interested and biased statements of mere partisans. Sir, there is a principle of law — as salutary in practice as just in theory — that the law presumes every man is innocent until the contrary appears from competent evidence. Does my colleague on the committee suppose that I would strike down the character of any man on a mere ex parte affidavit ? Is my col- league or any man here entitled to brand Edgar as a felon until the crime shall have been proved against him to the satisfaction of a jury of his country ? Does my colleague sup- pose I would brand him with infamy without a hearing? No, sir. I will give the affidavit which is produced just the weight to which it is entitled as an ex parte statement — the weight the law gives it ; and that is no weight at all. If it be true that the evidence of Edgar is unworthy of credence, it was the place of the sitting member to have shown it at the time he was examined, or at least to have used a little more diligence in bringing the matter before the House. The House adopted the resolution reported by the committee declaring it " inexpedient to extend the time," &c, &c, by yeas 89, nays 79. April 19, 1860. Mr. Gilmer, from the Committee of Elections, made the following report : The. first district of Michigan is composed of the four counties of Jackson, Livingston, Washtenaw, and Wayne. The election here contested was held on the 2d day of November, 1858. The whole number of votes cast for represent- ative at this-election.was 26,189; Of which there was returned as given for George B. Cooper, the sitting member 13,123 For William A. Howard, the contestant 13,048 Scattering. 18 26,189 Plurality for sitting member, 75 votes, as appears by the returns made to the office of secretary of state of Michigan. The certificate of election was issued to the sitting member on the 30th of November, 1858. The notice of contest, the answer of sitting member, and the taking of testimony in the case, were in accordance with, and by the authority of, the act of Congress of the 19th of February, 1851. Upon the testimony so taken, the committee proceeded to hear and determine the case ; the amplest opportunity for argument and investigation being allowed to both parties in person, and, so far as they desired, by counsel. CONTESTED ELECTION CASES IN CONGRESS. 281 ' The contestant seeks to overcome and destroy the apparent majority of the sitting member upon several distinct and independent grounds, either of which, if proved, he insists establishes his right to the seat. The returned member interposed a motion to strike out all the testimony- taken by the contestant, for certain alleged informalities and irregularities claimed to appear upon the face of the record. Both parties were fully heard upon this motion, and your committee are of opinion that no part of the record is irregular, and that it should stand and be considered. 1 The undersigned proceed to consider the points insisted upon by the con- testant in this order: First. It is insisted that the votes returned for both parties from the 4th ward in the city of Detroit must be deducted from the whole number of votes re- turned for them, respectively, in the district, for reason of such irregularities and informalities, such clear violations of the statutes of Michigan, and such errors of substance, as to destroy all certainty as to the accuracy of the result, and to make it impossible under the law to give any legal effect to the ballots purporting to have been cast in said ward. Tour committee have carefully considered the evidence upon this branch of the case; and while they would be very unwilling to reject any poll upon mere technicalities, yet, in this case, in the judgment of your committee, the viola- tions of the law were so palpable, and so relate to matters of substance, and produce such uncertainty as to the ballots, (vide Tillman and Wells's testimony,) that your committee, upon due deliberation, have rejected the poll, and de- ducted the votes returned for each of the parties in said ward. Second. It is alleged that the votes returned from the second ward in the city of Detroit should be deducted, for the reason that the polls were in the possession of rioters and prize-fighters throughout the day ; and that the ob- struction and violence were such as to prevent the legal electors from voting, and so facilitated illegal voting, on the part of those who had no right to vote at all, that the whole poll ought to be rejected. It seems to be admitted that the board was legally organized in the morn- ing ; and while it is shown by four witnesses (vide Larned, Jackson, Stebbins, and Hornbeck's testimony) that disorders and obstructions were great, attended by intimidation and violence, it may be difficult to determine what precise amount of disorder, obstruction, and even violence amon^g bystanders adjacent to the polls should be deemed sufficient to vitiate the election. In the present instance, if the view your committee take of the other branches of the case be correct, the discussion of this question may not be very material. Be this as it may, your committee recommend that the poll stand. If the state of facts proved leave it doubtful whether, on the whole, the poll should be retained or rejected, your committee are of opinion that they will best avoid the establish- ment of bad precedents by giving effect to the returns in all cases of doubt. Third. It is insisted by contestant that the vote of the township of " Grrosse Pointe" cannot be counted, for the reason that the polls were opened and the election held at a place two miles distant from the place fixed for holding the election by a vote of the town in town meeting. The election was held at the house of one Charles "Wilson. It is claimed by contestant that it was regularly appointed to be held at the house of one Michael Kline, two miles distant. It seems to be admitted by both parties that if it was so appointed by the competent authority, and changed without com- petent authority, it is fatal, and the vote cannot be counted. Section 508 of the 1st volume of Michigan Compiled Laws requires that "the annual and special township meetings shall severally be held at the place in the township where the last township meeting was held, or at such other place therein as shall have been ordered at a previous meeting." 282 CONTESTED ELECTION CASES IN CONGRESS. It is clearly proved that this election was, at the annual meeting, ordered to he held at the house of " Michael Kline." If this section of the statute ap- plies to this election there is an end of the question, and the vote must be de- ducted. The returned member makes a distinction between the election in question and all " annual and special township meetings," and claims that this section does not apply to this election. In the judgment of your committee it is im- material whether the section apply to this election or not ; for if it do not ap- ply, then the statute is everywhere silent on the subject of determining the place where the November election shall be held. But the proof is clear that it is the general custom in that township for the electors to fix by vote at their an- nual meeting the place of holding the elections in November. The proof is equally clear tbat they did so fix it in this particular case. They having so fixed it in accordance with the custom, it could not be changed by any inferior authority, since neither custom nor law sanction any change by any individual or any board known to the law. The fact is proved that it was fixed at Kline's by the electors by vote in the annual meeting, and in accordance with the gen- eral custom, and in the absence of all law forbidding it, even if the 508th sec- tion does not apply. If the 508th section does apply, then the custom, the fact, and the law concur to make Kline's the legal place. Either way the vote, in the judgment of your committee, must be rejected. Fourth. Your committee have rejected the vote of the township of Van Buren. The law requires that the board of inspectors shall be constituted of three per- sons in number. The proof is clear that there were but two. And as there was no board of inspectors known to the law, your committee see no way by which any legal effect can be given to the returned vote. They have, therefore,, deducted it, although it can in no way affect the decision of this case, whether it be deducted or retained. * Fifth. — Illegal and fraudulent votes. — Your committee have been constrained to deduct a larger number of illegal and fraudulent votes cast for the sitting member than all his returned majority. Under this head they have deducted in all, from the returned vote of the sitting member, one hundred and six (106) votes, as being not only illegal, but many of them grossly fraudulent. Some of them were the result of a deliberate purpose to cheat and defraud. It is, however, due to the sitting member to say that it does not appear that he had personal knowledge of it at the time, or is in any respect personally compro- mised thereby. Of the illegal and fraudulent votes rejected by your committee, there were cast in the 2d ward of the city of Detroit at least fifty-eight (58) votes, and the testimony tends strongly to show that there were sixty-two (62.) In regard to the fifty-eight votes your committee think there is no doubt. These votes were cast in purpose of a deliberate design or conspiracy to defraud. Your committee, therefore, deduct fraudulent votes cast for sitting member as follows, viz : Votes. Second ward, city of Detroit 58 Fifth ward, " " 14 Seventh ward, " " 1 Eighth ward, " " 2 Grosse Pointe township 2 Van Buren township at least four votes, while the proof very strongly inclines to 10 votes 4 To which your committee have added 25 votes for the number of Cana- dians brought into the fifth ward of the city of Detroit by Orvis, Stowell, and Smith. As the number is said to be 25 or 30, your committee de- duct the smallest number stated 25 Whole number 106 CONTESTED ELECTION CASES IN CONGRESS. 283 A detailed statement of the fraudulent votes so deducted by your committee will be found appended to this report. Upon a review and summary of the whole case your committee find the fol- lowing result : The whole number of votes returned for contestant 13,048 Deduct votes returned from 4th^ ward 230 Deduct votes returned from Grosse Pointe 27 Deduct votes returned from Van Buren 104 361 Leaving votes for contestant 12,681 The whole number of votes returned for sitting member 13,123 Deduct votes returned from 4th ward 492 Deduct votes returned from Grosse Pointe 189 Deduct votes returned from Van Buren 163 Illegal and fraudulent votes 106 950 Whole number of votes for sitting member 12,173 Majority for contestant 514 Your committee therefore submit the following resolutions and recommend that the same be adopted by this house : Resolved, That George B. Cooper is not entitled to a seat in the 36th Congress as the rep- resentative from the first congressional district of Michigan. Eesolvtd, That William A. Howard is entitled to a seat in the 36th Congress as the rep- resentative from the first congressional district of Michigan. It is necessary to recur to the debate in the House to gain a clear idea of all the legal questions in dispute. The more important are alluded to in the ap. pended extracts : Mr. Dawes: The resolutions offered by the committee, which are that the contestant is en- titled to the seat now occupied by the sitting member, are based upon four propositions, either of which is sufficient, if found to be correct, to give the seat to the contestant. They are : First, illegal votes. The committee found illegal votes sufficient to more than counterbalance the majority of the official canvass for the sitting member. That is one ground. Another ground is a total departure from the requisitions of the law of the State of Michigan, in the manner of holding the election in one of the wards of the city of Detroit and in one of the, townships. The third ground is, that the election in one of the townships was held in a different place from that in which it was appointed to be held ; and the fourth is, that there were no proper officers in one of the wards in the city of Detroit. In point of fact, there are but three grounds upon which these reports are based ; two of these grounds being properly included in one. I call attention, in the first place, to the first ground of contest upon which these resolu- tions are based — and that is, the challenge of illegal votes. The committee found something over one hundred votes, cast for the sitting member, to have been cast by persons not au- thorized by law to vote at that election. Those one hundred and more votes are divided into four classes ; one class embraces fifty-eight of these votes, another nine, another four, and another twenty-five, and there are some others. The fifty-eight votes all depend upon a single fact. They were cast in the second ward of the city of Detroit. That ward, the one in which the contestant resides, was not large, and the voters of the ward are all known to be inhabitants of the ward. Although there was great disturbance at the polls during the whole of the day, and it is known that many of the political friends of the contestant were kept away from the polls, yet there was found, when the polls closed, to have been a large increase of voters in that ward, something over one hundred more votes, I think, than were ever cast before ; and upon the poll-list there appeared the names of about that number of voters never known to the oldest inhabitants of the ward before. 284 CONTESTED ELECTION CASES IN CONGRESS. From these circumstances the contestant and the committee were led to direct their exami- nation to that ward for the purpose of investigating the character of votes there given. _ It appeared that one Thomas Howrigan, a naturalized Irishman, residing in this ward, just before the election took a contract with the political managers of his party to carry this ward for the Democratic party, in consideration of a price. The ward gave usually twenty-five or thirty majority for the party of the contestant. On this occasion, as I have said, this Thomas Howrigan entered into a contract with those who were to have the pffices to dispose of if the city election should be carried for the Democratic party. In that event he was to have a certain office, provided he carried the second ward for the Democrats. In pursuance of this contract he went to work. The constitution and laws of Michigan required that, in order to be a qualified voter in that State, there must be a residence of three months within the State, and of ten days before the election within the township or ward where the vote is cast. This man Howrigan, in pursuance of his contract, went out and engaged sixty-two persons to come into the ward on the express stipulation that they should board with him for the ten days previous to the elec- tion, and have their board and grog free, on the consideration that they should vote the Democratic ticket when the election came. There were sixty-two of those persons, according to his own testimony. He was instructed, he says in his testimony, in what constituted the qualifications of a voter in that ward. He was instructed, he says, by the constitution of Michigan and the laws of that State, that ten days' residence made a voter. And he decided that if a man resided in the ward for the term of ten days, as he says, that constituted him a legal voter of the ward, and he came to the conclusion that staying in the ward was equi- valent to residing in the ward. But although these sixty-two men were brought into the ward just ten days before the election, yet in reference to some of them there was an interregnum in their ten days' resi- dence before the election took place ; for in staying with him under their contract, and having nothing to do but to eat his bread and drink his grog, they got up a prize fight, and went out into Canada to settle it ; and in settling it, a portion of them got into jail in Canada on the Friday previous to the election, and remained there till Monday, when the political friends of Mr. Howrigan went over there and bailed them out ; so that, I say, there was a a slight interregnum in the ten days' residence of a portion, though not applicable to the whole sixty-two, however. According to the law, even as laid down by this man Howrigan, the right to vote of those who were lodged in jail was somewhat invalidated. The committee came to the conclusion that, in order to be a resident of the second ward of the city of Detroit — such a residence as would entitle a man to cast his vote there — he must come there for some other purpose than that for which these men came ; that, under the law of the State of Michigan, he must have made his home in the second ward ; he must not only have changed his residence to that place, but he must have gone there with the intention of making it his permanent residence, or his residence for an indefinite time ; in the language of the law, "without any present intention of removing." Yet it appears, from the testimony in this case, that these persons came there without bag or baggage, with- out employment, and without any other purpose than to remain there for ten days previous to the election in order to vote, in pursuance of their contract, the Democratic ticket ; and that immediately after the election they left, and have not been seen there since. Fifty- eight votes were rejected from the poll of the sitting member cast for him in this ward by these men. The evidence appeared clear to the committee that these parties, or numbers of them, came from Canada, not being even citizens of the United States, but coming from Canada directly to this second ward, having their board paid by this man Howrigan, in pursuance of their contract, and voting the Democratic ticket. Some of them were picked up in other parts of the city by him, and kept in the ward for ten days, for the purpose of voting ; and having voted the Democratic ticket, left. Mr. Dawes proceeded to argue in reference to the " Grosse Pointe " township vote, concluding as follows : There was one other point. At one of the wards in the city of Detroit the election was not conducted in such a manner as to make it possible to ascertain, after the polls were closed, whether the vote was honestly taken or not. There were two tickets — one for city officers, and the other for the State ticket and representatives in Congress. They were both put into the one box. A voter walked up with two tickets folded up, and put them into the box. There was no poll list so kept that it could be ascertained whether the two tickets which the voter deposited were one for the State officers and one for the city officers, or whether both were not for the State officers or both for the city officers. There was noti ing in the mode of keeping the polls to prevent frauds from being committed in that way ; and when the polls were closed, it appeared that there was some variation in the votes. The committee, therefore, thought that this irregularity was of such a character as to render it impossible to say how many bona fide votes were cast at that ward for representative in Con- gress. In the town of Van Buren, in that county, there were but two inspectors of election, al- though the law requires three. The town clerk is ex officio one of the inspectors of election. CONTESTED ELECTION CASES IN CONGRESS. 285 i In that township the town clerk was not present during any part of the day, except to cast his vote and go away. The law requires that, in the absence of any one of the inspectors appointed, one or more shall be chosen from the bystanders to take his place, who shall con- tinue to act as inspector. The town clerk is also required to be one of the clerks of election to record the votes. The majority cast for the sitting member at that poll was greater than the whole majority returned for him; and therefore, if it be rejected, the resolutions based upon this point alone should be sustained. Mr. G-ARTRELL: Now, Mr. Speaker, what are the points presented here? There are but three. It is first maintained that the election in the fourth ward of the city of Detroit was irregular and illegal, and that the entire poll ought to be excluded. Four reasons are given by the con- testant, and are more specially assigned by the majority of the committee in their report, why this entire poll should be excluded from the canvass. First, because one of the inspectors, by the name of Dudgeon, is said not to have been swom. Secondly, because it is alleged that the poll lists were not sealed up in a box, as the laws of Michigan require. The laws of Michigan require that the poll-box shall be locked and sealed. But, sir, it will be impossible for gentlemen to arrive at a just conclusion upon this branch of the case, which is a controlling one, without reference being had, closely and carefully, not only to the laws of that State and the laws regulating elections, but to the evidence in the case. Let us, then, very briefly — as briefly as the justice of the case will allow — consider this law, and then invite the attention of the House to the evidence, although it may be disagree- able and monotonous. Then I shall expect the gentlemen on the other side, who are the political friends of the contestant, to disprove the facts presented, and refute the testimony in the case, or agree to the resolutions reported by the minority of the committee. What is the law 1 Upon this point I find in the volume before me the law of the State of Michigan applying to this case, as follows: "Sec. 42. At the general election, the supervisor, the justice of the peace, not holding the office of supervisor, whose term of office will first expire, and the township clerk of each township, and the assessor and alderman of tach ward in a city, or if in any city there be not an assessor in every ward, then the two aldermen of each ward shall be inspectors of election, two of whom shall constitute a quorum. "Sec. 43. In case three of such inspectors shall not attend at the opening of the polls, or shall not remain in attendance during the election, the electors present may choose viva voce such number of such electors as, with the inspector or inspectors, shall constitute a board of three in number ; and such electors so chosen shall be inspectors of the election during the continuance thereof." It will be observed that, according to these provisions, there may be three inspectors of election, including the alderman, in each ward in a city; and that in the townships the in- spectors will constitute ex officio inspectors of elections. When present, it was their duty, their privilege, and their right to act in that capacity. It will be further noticed that being absent, or when present and refusing to act, the electors present may choose from their num- ber inspectors to act in their places Two only are necessary to constitute a quorum sufficient to canvass the votes and determine the validity of the election. * * * We come now to the second propositon : to exclude the Grosse Pointe election, a township near the city of Detroit, and in the county of Wayne. At the election in that township, there were polled for George B. Cooper 189 votes, and for William A. How- ard 27 votes. This is another democratic majority, and that fact may account for its being so bitterly attacked. What are the reasons assigned for the exclusion of this entire poll, and the disfranchisement of over two hundred persons 1 When stated, they will be at once dis- covered to be exceedingly significant and remarkable. Say our friends of the majority of the committee, the reason for excluding this poll is because the place of election was held at Wil- son's instead of Kline's ; that it was changed from the regular place to a place two miles distant, and in violation of law ; and that, therefore, no legal election was held. The ma- jority assume that, although the election was held in the township where the law of Michigan provides it shall be held, yet is an illegal election ; and, as it is an easy way of giving the contestant the seat, we will throw out the whole poll, and he will come in, as a matter of course. What are the reasons assigned for this extraordinary assumption of power ? They say that, according to the laws of Michigan regulating township affairs, this election for Grosse Pointe was fixed to be held at Kline's. It is alleged that there was an arrangement between Kline and Wilson, the latter paying the former five dollars, by which the election was to be held at Wilson's tavern. There is no evidence of the fact that there was any such payment. It is upon evidence outside of the record that the majority would seem to proceed — mere heresay, and nothing more. We are told that this man heard another tell, or that he was told, and so on, that some understanding, some agreement, was entered into by Kline and Wilson. 286 CONTESTED ELECTION CASES IN CONGRESS. Now, with regard to the allegation of the majority that the election at Grosse Pointe was in violation of the statutes of Michigan, I desire to remark that it requires but little ingenuity to convince any candid man, whether a lawyer or not, beyond the shadow of a doubt, of its fallacy ; and that no court, nor any twelve sworn men in this country, could fail to conclude that the statutes relied upon by the majority do not apply ; and that the law of Michigan is as clear as the noonday sun that the clerks of the several townships at these general elections should give notice of the time and place of each election, which it is admitted was done in this case. What are these laws ? I have them here before me. At page 228 of the compiled laws of Michigan, under the heading of " township meetings," the following provision is found : " The annual meeting of each township shall be held on the first Monday of April in each year ; and at such meeting there shall be an election for the following officers : one super- visor, one township clerk, one treasurer, one school inspector, two directors of the poor, two assessors, (if the qualified electors present at the openiug of the meeting shall so determine by vote, ) one commissioner of highways, so many justices of the peace as there are by law to be elected in the township, and so many constables as shall be ordered by the meeting, not exceeding four in number," &c. It will be observed that these meetings are to be held annually, on the first Monday of April. The law goes on : "The annual and special township meetings shall severally be held at the place in the township where the last annual township meeting was held, or at such other place therein as shall have been ordered at a previous meeting ; and when there has been no such previous meeting, at such place as shall be directed in the . act or proceedings by which the township was organized, unless it shall in either case become inconvenient to do so," &c. And yet being by the statute of Michigan confined to that particular purpose; being held down to the management of town affairs, the election of their township officers ; being a body corporate, authorized to sue and be sued, to raise money for the support of the poor, we are gravely told, and by legal gentlemen at that, that this statute applies to general elec- tions held throughout the entire State of Michigan. I venture the assertion that such a con- struction and such an assumption were never before presented by a legal mind. I might, Mr. Speaker, stop here, and there would be an end to all that objection ; but I go further, and now propose to show, beyond the shadow of a doubt, that there are general elec- tion laws in the State of Michigan which apply to this case ; and that those laws were, in their letter and spirit, carried out in the change of place of voting from Kline's to Wilson's. If I do that, there is the end of this objection. At page 102, in this same volume, I find the following statute, approved June 27, 1851, to take effect September 27, 1851 : "Sec. 1. The people of the State of Michigan enact that a general election shall be held in the several townships and wards of this State, on the Tuesday succeeding the first Monday of November, in the year 1852, and on the Tuesday succeeding the first Monday of Novem- ber, every second year thereafter," &c. Now, remember that the special town meetings are held under the law annually on the 1st day of April ; but the general elections — the time of holding which the gentleman from Mas- sachusetts [Mr. Dawes] seems to think the township clerk assumes to fix as well as the place — the general elections for governor, members of Congress, and State officers, are held every two years, and the time is expressly fixed by the statute. That is the case in all the States. Now, sir, this law provides further, that it shall be the duty of the secretary of state to give notice to the sheriffs of the several townships of the officers to be elected biennially at these general state elections ; and the sheriffs receiving such notices must serve a copy of them upon the clerks of the several townships, and upon the inspectors of election in the several wards ; and that the township clerks, or inspectors of elections, as the case may be, shall issue their respective notices at least ten days before the time fixed, of the place, and call upon the electors to vote. But, in order that I may not misquote the statute, I will read the sections to which reference is made. They are as follows : "SEC. 35. The secretary of state shall, between the 1st day of July and the 1st day of September preceding a general election, direct and cause to be delivered to the sheriff of each county in this State a notidfe, in writing, that at the next general election there will be chosen as many of the following officers as are to be elected at such general election, namely : a gov- ernor, &c, and a representative in Congress for the district to which each of such counties shall belong. ********* "Sec. 39. The sheriff, onreceiving such notice, shall forthwith cause a notice in writing to be delivered to the township clerk in each township, and to one of the inspectors of election in each ward in any city ot his county, which notice shall contain, in substance, the notices so received by such sheriff.'" Now let us go one step further. We have got down to the sheriff and his duties. He having to discharge his duty, the clerk also has certain duties to discharge ; and, to show that the township clerk discharged his duty according to the law, its letter and its spirit, and that he appointed this election to be held at Wilson's, where it was legally held, and that the law regulating township meetings on the first Monday of April has no application to the general election, section forty-one provides : CONTESTED ELECTION CASES IN CONGRESS. 287 " The township clerk or inspector of elections, receiving either of the notices so described in this act to be delivered to him, shall, by notice in writing, under his hand, give at least ten days' notice to the. electors of the township, or ward, of the time and place at which sucb election is to be held, and the officers to be chosen," &c. The gentleman from Massachusetts objected that the township clerk had no right to fix the place. I say, if the township clerk had no right to fix the place, then the statute law of Michigan is silent upon the subject ; and as there is no other law prohibiting the fixing of the place, he is bound, under this statute, to fix the place. The statute provides that, upon receiving the notices from the sheriff, he shall, under his hand, give notice to the electors' of the time and place. What time 1 The time prescribed by the statute of the State — the Tues- day after the first Monday of November, every second year. What place 1 The place desig- nated by the clerk of the township. That was done. That was the only place where it could be held. It is contended that the place of holding election was changed, without authority of law, from Kline's to Wilson's. I say that these municipal regulations have no reference whatever to the general election, and that it was not only the right of the town clerk, but his duty, to fix the time and to fix the place. Mr. Stratton. * * * * * Most of the gentleman's argument was devoted to that portion of the report made by the majority of the committee in which they come to the conclusion that the poll from the fourth ward of the city of Detroit ought to be deducted. That is one of the points upon which the resolutions of the majority are based. The ground upon which it is claimed that this poll should be deducted from the vote of Cooper is this : upon the morning of the election Alderman Dudgeon, who was, by virtue of his office, ex officio judge of election, refused to act as such judge or inspector. The electors then pres- ent, in accordance with the law of Michigan, elected Mr. Katus to fill the vacancy occasioned by the resignation or declension of Alderman Dudgeon. But there is one significant fact in this case which is not referred to in the report of the minority of the committee, and which seems to have been sedulously kept out of sight by the gentleman from Georgia ; and that fact is, that this Alderman Dudgeon, who declined to discharge the duties of inspector, was himself a candidate upon the democratic ticket for the high office of State senator. Singular •as it may appear, there is no law in Michigan which disqualifies a man from acting as an in- spector in an election at which he is himself soliciting the suffrages of the people ; but from a "proper delicacy, or from some other cause, when the poll opened, Alderman Dudgeon declined to act as inspector, and the electors present, as I have already stated, selected Mr. Katus to fill his place. Mr. Katus was duly qualified, and entered on the discharge of his duties as a judge or inspector of election, and continued so to act until the poll closed, at five o'clock in the afternoon, when, under some strange misapprehension of his duties, he retired from the poll, and Mr. Dudgeon, who had declined to act in the morning — who had taken no oath such as is required by the law of Michigan — and without authority from the electors present, re- sumed the place Which he had voluntarily vacated, and performed the important function of countiag up and canvassing the votes cast at an election in which he was himself a candidate. Now, sir, I call the attention of the House to the fact that the statute of Michigan provides that the inspectors shall" continue to act as such during the continuance of the election. This man, Captain Katus, was chosen as inspector; he entered upon the discharge of his duties^ and continued to receive votes at the polls until the votes were all in and the boxes closed. Did his duty then cease 1 Was the election then over ? I think not. On the contrary, after the polls had been closed, then there remained the very important duty of counting, of can- vassing, and making a return of the number of votes cast. The election was not completed until after the ballots had been counted and the returns made by the inspectors to the proper authorities. Until all this was done there "was a continuance of the election," in the legal meaning of the word ; and Katus was the only person authorized under the law, with his co- inspectors, Tillman and Lacroix, to discharge that important duty which rendered the elec- tion complete. But we find that Dudgeon, who in the morning, on his own motion, had re- tired, at rive o'clock, when the polls had been closed, stepped in again and assumed to act as inspector in completing this important part of the duty of inspector in connexion with an election under the laws of the State of Michigan. Now, Mr Speaker, the committee believed this fact sufficient to justify this house in reject- ing this poll. They believed that there had been a gross and palpable violation of the law ; that this man had no right to act as inspector, having declined so to act in a former part of the day, and another appointed to act in his place. This Katus having been appointed, he was the only person authorized to act, in conjunction with the other inspectors, as inspector. But this man Dudgeon, who was himself a candidate for office, steps in, and, without the sanction or solemnity of an oath, assumes the functions of inspector, and proceeds to canvass and count the votes. * * * In reference to the question of legal residence, I beg leave to call the attention of the House to an authority. The argument made by the honorable gentleman from Georgia [Mr. Gartrell] is, that these men, being there in person on the 2d of November, 1 858, and having been there ten days before the election, no matter for what purpose they came, if only to cast their votes, they were, therefore, under the laws and constitution of Michigan, entitled to vote. I do not so understand it. There must be a bona fide intention 288 CONTESTED ELECTION CASES IN CONGRESS. ■upon their part of making that place their place of residence- and their domicile for some proper and lawful purpose. The mere fact of their going into some election district ten days oj- weeks before an election, simply for the purpose of casting their votes, does not make rheui residents, and therefore does not make them legal voters. This point has been decided by the supreme court of Indiana, in the case of French vs. Lighty, to be found in the ninth volume of Indiana reports. The decision is as follows : 1. To gain a domicile in this State, the citizen of another State must remove, locate, and intend permanently to remain here. Residence without such intention operates no change of. political rights; and such residents cannot vote in this State. Thus, also, a residence in a county for any length of time, on business, on » visit, for pleasure, or for any temporary purpose, with intention to return to a domicile elsewhere, or without intention to remain for an indefinite time at least, is no abandonment of the former domicile, and gives no domicile in the county where such temporary sojourn is made, and consequently no right to vote at such temporary place of residence. * * * * 4. A single man can be no more without a fixed domicile than a man of family ; and though the domicile of the former may be more difficult to find and prove, yet the rules of evidence by which it is ascertained are the same as those applicable in determining the domicile of other persons. That is the rule of the supreme court of Indiana, and I presume it is the acknowledged law of the land everywhere. The House (May 15) adopted the resolutions of the committee — the first declaring that the sitting member, Mr. Cooper, was not entitled to the seat, yeas 97, nays 77; the second that the contestant, Mr. Howard, was entitled to it, yeas 92, nays 71. Note. — The debate upon the preliminary question in this case is in vol. 40 Congressional Globe. For the report: Mr. Campbell, pp. 1308,1317; Mr. Howard, p. 1313; Mr. Stratton.p. 1318. Against the report : Mr. Stevenson, p. 1309 ; Mr. Millson, p. 13] 5 ; Mr. Vallandigham, p. 1317. The debate upon the main contest is in vol. 41 Congressional Globe. For the report : Mr. Dawes, p. 2095 ; Mr. Stratton, p. 2106 ; Mr. Gilmer, p. 2109. Against the report: Mr. Gartrell, p. 2101. THIRTY-SIXTH CONGRESS, FIRST SESSION. Williamson vs. Sickles, of New York. The contested election law of 1851 is not of absolute, binding force upon the House ; it is a wholesome rule not to be departed from without cause. The contestant having in good faith, (according to the belief of the committee,) neglected to take testimony under the law of 1851 after legal advice that there had been no such "de- termination of the result of said election" contemplated in the act as would allow him to serve notice upon the sitting member, the committee recommended the House to grant au- thority to take testimony "after the expiration of the sixty days." IN THE HOUSE OF REPRESENTATIVES, , March 12, 1860. Mr. Dawes, from the Committee of Elections, made the following report : That the contestant has not proceeded in conformity to the directions pre- scribed in the statute of February 19, 1851, which provides that the contestant shall serve notice of contest upon the sitting member within thirty days after the result of said election shall have been determined by the officer or board of canvassers authorized by law to determine the same, and that the sitting mem- ber shall answer the same within thirty days, and all testimony shall be taken within sixty days thereafter, and is now before the committee without legal evi- dence. He alleges, as a reason, that the circumstances of this case are so CONTESTED ELECTION CASES IN CONGKESS. 289 peculiar that the statute has no application to it, and that he was therefore unable to avail himself of its provisions. The facts of this case, so far as they bear upon the preliminary question now submitted to the House, are as follows : The election for representative to Congress in the several districts of the State of New York to this Congress was held on the 2d day of November, 1858. By the laws of that State it is made th,e duty of the inspectors in the several election districts to certify the result of the poll in their respective districts with one ballot of each kind cast attached thereto to the county canvassers, who are required to certify the several results in the entire districts, thus reported to them, to a board of State canvassers at Albany. It is made the duty of the State canvassers, from the certified copies of the statements made by the boards of county canvassers, to proceed to make a statement of the whole number of votes given at such election for representative in Congress. U pon such state- ment they shall then proceed to determine and declare what person has been by the greatest number of votes duly elected to such offije." — (R. S , vol 1, part 1, ch. 4.) It is further made the duty of the secretary of the State of New York, without delay, to transmit a copy, under the seal of his offiee, of such certified determination to each person thereby declared to be elected, and a like copy to the governor, and cause a copy of such certified statements and determinations to be printed in each senate district, and shall also transmit to the House pf Repre- sentatives of the United States, at thsir first meeting, a general certificate of the due election of the persons so chosen representatives in Congress. — (Ch. 5.) The board of county canvassers for the county of New York, in certifying to the State canvassers the votes cast in the several congressional districts in the city of New York, certified them to have been cast for " member of Congress," instead of for "representative in Congress," the office designated in the consti- tution and laws. \ It was admitted before the committee that this was a mistake of the county canvassers, and that they afterwards sent' to the State canvassers a statement that the ballots returned by the inspectors to them were styled lor " representative in Congress," and no claim is made to the seat on account of this mistake. But the State canvassers, inasmuch as the county canvassers had not certified that any votes had been given for " representative iu Congress " in the city of New York, considered themselves precluded from determining and certifying that any person had been elected in the several districts (six in number) in the city of New York. They made, in conformity to law, as to all the other districts in the State, a statement of the whole number of votes given in such districts, and iipon such statements they proceeded to determine and declare who were elected. This statement and determination they published, as required by law. The secretary of state sent to each of the persons so declared to be elected a certified copy of such certified determination, and certified the same to this house in an official certificate addressed to the House of Representatives. A copy of this certificate, forwarded to the other members from New York, is appended to this report. But in respect to the district here contested, and the other districts in the city of New York, they published a statement of the votes, but for the reasons heretofore given they "further certify that inasmuch as said office was not legally designated in the returns of the county canvassers of the said county of New York, made to this board, we cannot certify to the election of any person to the office of representative in Congress in- the said respective districts." A copy of this statement is also appended to this report. They sent no copy of this statement to any person claiming to be elected from the third district of New York,, nor did they address any copy of it to this house ; and the only commission which Mr. Sickles has from the authorities of the State of New York is a certified copy of this statement, which he obtained H. Mi-. Doc. 57 19 290 CONTESTED ELECTION CASES IN CONGRESS. on application and payment of fees for copy, at the secretary's office in Albany, a few days before this session commenced — November 28, 1859. "While the votes were before the State canvassers, and before their action be- came known, Mr. Williamson made preparations to contest the seat in the mode pointed out in the statute of 1851. He employed counsel for that purpose, and prepared, in part, the notice of contest required by that statute. But when those canvassers published their action he was advised by his counsel that there had been no such " determination of the result of said election " as is contem- plated in said act, and that until such determination was made he could not under said law serve notice upon Mr. Sickles more than Mr. Sickles upon him, for both were equally without evidence of his right to the seat from the consti- tuted authorities of New York, and that he could not, by the authority of said act, obtain compulsory process for the attendance of witnesses, or compel them to attend and testify under the pains and penalties of perjury. He therefore abandoned further proceedings tinder said act, and appealed to the House at the earliest practicable moment after the organization, for a commission to take testimony, believing this to be his only mode of obtaining any evidence beyond voluntary testimony. The answer of Mr. Sickles to the petition and to this application to take testimony, and also his brief in its support, are appended Xo this report, as is the brief of the petitioner in reply thereto. The committee do not consider the. law of 1851 as of absolute, binding force upon this house, for by the Constitution "each house shall be the judge of the elections, returns, and qualifications of its own members," and no previous House and Senate can judge for them. The committee, however, consider that act as a wholesome rule, not to be departed from except for cause. But the conclusion to which they have arrived upon this application renders it unneces- sary for them to settle the question whether the action of the State canvassers was such a " determination of the result of said election" as is. contemplated in that statute, so as to bring the case within its provisions. There obviously can arise cases not within the provisions of that act in which the parties must apply to the House itself for authority to take any other than voluntary testimony; and the act of 1851 itself provides for cases which may arise, about which there can be no doubt as to the determination of the result, and that they are in all things within its provisions, and it enacts that the House may, at their discre- tion, "allow supplementary evidence to be taken after the expiration of said .sixty days." Under this provision the House has, on the recommendation of its committee,' ■ on different occasions, allowed further time where the ends or justice seemed to require. it, and that in cases admitted to be in all respects within its provisions-.!) The House can and has extended time under the law, as well as in cases to which it does not apply. The committee believe the contestant has acted in good faith, and has been induced to the course he has taken by the belief, after legal advice, that it was his only mode of proceeding beyond the taking of tes- timony voluntarily given. They do not speak of the merits of the ease, for no .legal evidence has been presented to them, and this is solely an application for pryeess to take testimony. They do not intend, therefore, any prejudice to the '■cape of the sitting member when they bring to the notice of the House the alle- gations of the contestant contained in his petition, and the affidavit of his attor- ney, whieh he has made a part of it. The contestant alleges that frauds of the most serious and gross character ■ desired, and the committee having patiently, I think he will say, listened to all his arguments, they, following all the precedents of Congress upon the subject,' received the certificate of the secretary of the Territory. Here is the certificate of the secretary of Nebraska Territory : "Secretary's Office, Omaha City, January 19, I860. "I certify that the foregoing abstract of votes polled at the general election, held in this Territory on the 11th day of October, A. D. 1859, is a true and correct copy of that abstract, as returned to me by the governor and board of canvassers for the Territory aforesaid. "In testimony whereof, witness my hand and the great seal of the Territory of Nebraska [L. S.] hereunto affixed. Done at Omaba, on this the 19th day of January, A. D. J8b'U. "J. STEELING MORTON, Secretary vf Nebraska." 308 CONTESTED ELECTION CASES IN CONGRESS. By that abstract it appears that the sitting delegate had three hundred majority, and the evidence is incontrovertible that more than that number of votes counted for the sitting delegate were bogus. The sitting delegate stated, as his ground- for asking a continuance, that if he had known that his certificate would be admitted he w'ould have taken testimony to controvert these frauds. He does not controvert the certificate. The House adopted the resolutions of the committee without a division. The brief debate in the House, preceding the vote, will be found in volume 41, pp. 21S0, 2181, 2182. . THIRTY-SIXTH CONGRESS, FIRST SESSION. Blair vs. Barrett. Where judges of election neglected to take the prescribed oath of office and were implicated in frauds in conducting an election, held that the sitting member may be required to prove that they had conformed to law before the vote is counted. Ex parte affidavits taken after the parties had been fully heard on all the points involved in the case were rejected. The statement of a voter himself, in reference to his qualifications, admitted as evidence. The city government of St. Louis having ordered a census to be taken with statistics of na- tionality and naturalization, the committee received the census and the testimony of the census-takers. ' IN THE HOUSE OF REPRESENTATIVES, May 22, I860. Mr. Dawes, from the Committee of Elections, made the following report: The election here contested was held by ballot on the 2d day of August, 1858. The district is composed of the city and county of St. Louis. The official can- vass disclosed the following result of the votes, viz : For J. It. Barrett, 7,057 votes; for F. P. Blair, jr., 6,630 votes; for S. M. Breckinridge, 5,668 votes — showing a plurality for the sitting member over the contestant of 427 votes. But a clerical error in one of the precincts gave to Mr. Blair; 180 votes more than the actual poll in that precinct; so that the actual plurality of Mr. Barrett over Mr. Blair was 607 votes. A plurality elects. The contest has been carried on in conformity with the provisions of the act of Feb- ruary 19, 1851. The proofs are very voluminous, filling 953 pages of printed matter, and are to be found in Miscellaneous Document No. 8. The committee heard both the contestant and the sitting member, by themselves and by coun- ■sel, at great length, though no longer than the magnitude and complication of tne case seemed to require. The briefs submitted on each side have been printed by order of the House, and may be referred to for the legal views which are urged by the respective parties. The notice of contest which accompanies the proof contains nineteen grounds of contest. The answer of sitting member, which may be also found with the proofs, after denying specifically the several grounds of contest contained in the notice, makes, in turn, fifteen distinct charges of the grounds upon which the claim of the contestant is disputed. The manner of voting is peculiar to this district. It is provided by law that " at all elections by ballot it shall be the duty of the judges of election, in re- ceiving the ballots and registering the names and number of the votes, to place the number which shall be recorded opposite the voter's name on the list also on the ballot offered by him before depositing the same into the ballot-box." CONTESTED ELECTION CASES IN CONGRESS. 309 The judges are required, after certifying the result, to transmit the same, together with one of the poll-books, to the clerk of the county court, and pro- vision is made for compensation to them for their services in conducting elections and returning the poll-books and ballots to the county clerk's office. This pecu- liar statute provision, if faithfully executed, renders it an easy matter to ascer- tain with certainty, whenever it is necessary, for whom every voter in the dis- trict cast his ballot. It is properly entitled " An aet to facilitate the detection of fraud in elections," and its title indicates clearly enough the purpose of its enactment. A comparison of the number on each ballot, at any time after the election, with the corresponding number on the poll-book, will, if the poll-books have been honestly kept, disclose against that number the name of the person who deposited that ballot; and when the ground of contest is that the votes are illegal, nothing but the qualification of the voter is left for further inquiry. After the notice of contest was served upon the sitting member, charging that great numbers of illegal voters cast their ballots for him, the contestant made application to the clerk of the county court for liberty to inspect the numbered ballots cast at this election. This application was resisted by the sitting mem- ber, and the county court passed an order restraining the clerk of the county court from allowing any such inspection. Subsequently the judge of the circuit court, to whom the contestant applied to take proofs, under the statute of Feb- ruary 19, 1851, which expressly clothes such judge with power to require of any person, under severe penalties, the production of any " paper or papers in his possession pertaining to said election," peremptorily commanded the pro- duction of these ballots, and they have thus been made a part of the proofs, and are to be found in said document No. 8, before referred to. The statutes regulating the election of members of Congress require that the judges of elec- tion shall, before entering upon the duties of their office, take an oath that they will faithfully perform those duties, and that " a certificate of their qualification shall be- returned with the return of the votes." To be a qualified voter in this district, one must be a free white citizen of the United States, of twenty-one years of age, >u resident of the State of Missouri one year next preceding an election, the last three months of which being in the county or district in which the vote is oifered. A person otherwise, qualified may vote in a township of which he is not a resident on taking an oath that he has not voted and will not vote in any other township during that election. * The evidence discloses a large and wholly unexplained increase of the aggre- gate vote for member of Congress at this election over that cast at a warmly contested and spirited canvass for the same office at the last election, two years before. At that election the aggregate vote was 13,865, while at this it swelled to 19,356 — an increase of 5,491. It further shows that while Mr. Blair, who was a candidate at both elections, and the candidate of the American party, each received the full amount, and a slight increase of the vote cast for them respectively at the last election, nearly the entire amount of this great accession of votes, viz : 4,776 votes, was cast for the sitting member over those cast for the candidate of his party at the last election. The 13,865 votes cast at the last election were divided as follows : For Mr. Blair, the candidate of the " free democracy," 6,035 votes ; for Mr. Kennett, the candidate of the American party, 5,549 votes; for Mr. Beynolds, the candidate of the "national democracy," 2,281 votes. At this election the 19,356 votes were cast as follows : For Mr. Blair, 6,631 votes ; for Mr. Breckinridge, the candidate of the American party, 5,668 votes ; and for Mr. Barrett, who was the candidate of the national democracy, 7,057 votes. Thus it will be seen that while the vote for Mr. Bar- rett over that cast for the candidate of his party at the last election had in- creased 4,776 votes, there had been no corresponding falling off either in the vote of Mr. Blair or in that of» the candidate of the American party. On the 310 CONTESTED ELECTION CAfeES IN CONGRESS. other band, the vote for these two gentlemen had also increased— that of Mr Blair 415 votes, and that of Mr. Breckinridge 119 votes. While a moderate increase of votes is readily accounted for by the natural increase of population and growth of the city, yet so great an increase in two years must, in the opinion of the committee, if honest, be traceable to some known, distinct, and palpable cause which might, if it existed, have been easily pointed out and made apparent during the investigation. It is evident that the large accession of votes to the sitting member over those cast for the candidate of his party at the previous election did not .result from a change of party relations among the voters. If it had been, there would have been a corresponding falling off from the vote for one or the other of the candidates of the other parties, yet they each not only maintained but increased their former vote. If such increase had been attributable to increase of population, it must, have been, under the law requiring a year's residence in the State before voting, from an addition to the population which had arrived in the city a year previous to the day of the election ; if from out of the State or from some other part of the State of Missouri, three months at least before that day. The presence of a new voting population of 5,000, with all the families, and other indications of their existence which move with them wherever they go, and stop with them wherever they abide, could hardly escape notice for a year or even three months. It could hardly be expected, either, that any such actual and bona fide accession to the voting population would have cast its entire strength for the candidate of one party alone. To some extent such increase would natu- rally be expected to distribute itself somewhat among all parties. The commit- tee have not been pointed to any instance elsewhere of so great an increase to the voting population of such a territory in so short a time, without any known cause or source, or special indication of its presence, and all of one political faith, and casting its first vote in a body for one of three different political can- didates all at the same time and place equally active in canvassing for votes. This district is divided into thirty-five election precincts or sub-districts, and any honest increase of votes arising from natural increase of population would generally find itself distributed among them all; yet it is nearly all found in seven or eight out of the thirty-five. These remarkable features of this case, disclosed in the, outset, led the com- mittee early to direct a most scrutinizing inquiry into the manner of voting, the qualification of voters, the conduct of the judges of elections, and of others in these precincts. The evidence shows that great irregularities existed at nearly all of them ; and just in proportion as these irregularities were frequent and glaring, did the increase of vote for the sitting member over the vote cast for the candidate of his party two years before show itself. In many of them it does not appear that the judges took any oath of office before proceeding to open the polls. One judge could neither read nor write, had been convicted by a jury of a conspiracy to cheat; another was deaf; a third threatened with vio* lence those who sought to challenge votes, and, instead of refusing to receive the votes of men who declined to be sworn as to their qualifications, as was his duty, endeavored to persuade them to vote without. Men unknown in the pre- cinct where they offered to vote were permitted to cast their ballots without question, and without first taking oath, as the law requires, that they " had not voted and would not vote in any other precinct in the district." Violent and tumultuous crowds surrounded the polls, and at times had such possession of them, and power over the judges, as to render it almost, if not quite, impossible for any one to approach the polls or cast his vote, unless he carried a ballot for the sitting member. Scenes of violence occurred about the polls ; altercations arose, and blows passed between the judge of the election and the challenger outside. Men, strangers in the precinct, openly proclaimed that they " had come there to make every Irishman vote the Barrett and Hackney ticket," and CONTESTED ELECTION CASES IN CONGRESS. 311 ' were themselves permitted to vote the same ticket without question ; public offi- cers, who were upon the same ticket with the sitting member, thus voted, min- gled with, and countenanced and encouraged these proceedings. One of the judges of the county court, which afterwards passed an order forbidding its clerk to permit the contestant to inspect the ballots thus cast, was upon the same ticket with the sitting member, and received with him the votes thus cast, and then subsequently attempted their concealment. Men temporarily employed upon public works, and having no legal residence in the district, were led by their employer, to the number of twenty-five or thirty, in a body to one poll to vote, and, when challenges and objections prevented more than five or six of them from casting ballots for the sitting member at that precinct, the remainder were taken to another precinct, and, in the language of their employer, " put through." Open and shameless proclamation of a $1 25 for a vote for Barrett was made in the crowd about the polls. Liquor was freely used, and booths for its sale or gratuitous distribution were kept in violation of law in the vicinity of the polls. And when a man in the early part of the day, upon being brought to the polls refused to " swear in " his vote, was taken away and plied with liquor, and again brought up and again refused to swear in his vote, was again taken away, and late in the day was brought up a third time stu- pefied with liquor, and the judges administered the oath to him in that state, and took the vote which he had twice before refused to swear he was qualified to give. Voters were interfered with when in the act of Voting their choice, and the ballot snatched away and one for the sitting member put in its place. As if preparatory for, and in anticipation of, these scenes at the polls, large numbers of men were employed a few days previous to the election upon the county roads, among whom there was the understand- ing that they were expected on the day of election to vote the ticket upon which was the name of the sitting member and of Judge Hackney, who subsequently attempted, by the authority these votes gave him, to' shield with the power of hi3 court these same votes from investigation. The evidence shows that these ' men thus employed were strangers, without residence in, and unknown to those who were residents in, the precinct and best acquainted with its inhabitants. One judge, in the face alike of his duty and the constitution of the State, openly declared in the hearing of' the crowd at the polls, which seemed already suffi- ciently inclined to avail itself of any such suggestion, that "if a man who had worked six months on a railroad in Missouri hadn't a right to vote he didn't know who Had." These laborers and others recently known in Illinois and elsewhere, but not known at the'place of voting, were seen immediately after the election taking leave, with carpet bag in hand, and have disappeared altogether from the vicinity. These irregularities and violent proceedings were shown to exist to a great extent in the following precincts, viz : The 32d precinct — Gravois coal mines. The 11th precinct — Carondelet. The 28th precinct — Eastern poll, ninth ward. The 29th precinct — Western poll, ninth ward. There were the same scenes at other precincts, though perhaps not as glar- ing ae at those just enumerated. An examination of the poll-books and abstract of votes at these precincts, which are a part of the proofs, discloses evidence of these irregularities and the facility they afforded for fraudulent voting. The conviction is forced upon the committee that this facility was eagerly and large- ly availed of, if it were not the cause and temptation to much of the fraudulent voting. In several of these precincts it does not appear that any oath had been taken by the judges of election, which, if nothing else, might be supposed to be some check upon a disposition to disregard or overlook the requirements of law. There is likewise the same omission in some instances of any evidence that the clerks, whose duty it is to keep a record of all the votes cast, had been sworn 312 CONTESTED ELECTION CASES IN CONGRESS. according to law. Poll-books coming without these sanctions from out the tumultuous scenes and angry strife which reigned at the precincts here men- tioned, in which the officers who kept them as well as the outside crowd partici- pated, fail in the outset to command that confidence in their accuracy which ordinarily attaches to the proceedings of public officers. The committee find on inspection, in frequent instances, too many to leave it to be imputed to acci- dent or mistake, ballots with the same number reported upon them which had previously been put upon other ballots and counted in the result. Whenever this is done, it must have been either because the voter cast two votes at once, with the connivance of the judge and clerk, who put his number upon the two ballots at the time they were cast, or some one having access to the ballot-box, and knowing what number had already been voted, puts upon a ballot a number already used, and drops it into the box in the expectation that the ballot will be counted and the repetition overlooked in the general result. Such instances could not arise from mistake of the judge or clerk in honestly putting upon one voter's ballot the number which they had previously used upon another, because the same number thus put upon the ballotmust also be put against the name of the voter upon the poll-books, and there would consequently appear upon the poll-books the names of two or more different voters with the same number pre- . fixed to them, and the mistake would be harmless. It is difficult to explain this consistently with the integrity of all the officers conducting the election. Such was the looseness and irregularity existing at many of the polls, that any one having access to the ballot-box could accomplish it all. Such evidences materially impair that confidence which the committee would gladly have placed in these returns, and were not without their effect in further investigation of the character of votes which were challenged as fraudulent. The poll-books show that the same person cast more than one vote, sometimes more than two, some- times at the same precinct, and sometimes at different ones in the city, multiply- ing in this way his vote manifold in the general result. A comparison of the" vote in these four precincts in 1856 and 1858, the election here contested, will show which candidate profited by the fraudulent voting, if any existed. The following is a table showing the vote for each candidate at both elections in each of these precincts : Comparison of the vote for representative to Congress in 1856 and 1858, in four precincts challenged by the contestant. Gravois precinct. 1856 — Keime.tt, (American, ) 47 ; Reynolds, (democrat,) 4; Blair, 4. 1858— Breckinridge, 24; Barrett, 153; Blair, 7. Carondelet. 1856— Kennett, 114; Reynolds, 44; Blair, 104. ] 858— Breckinridge, 66; Barrett, 286; Blair, 159. East precinct, 9th ward. 1856— Kennett, 240; Reynolds, 47; Blair, 271. 1858— Breckinridge, 234; Barrett, 492; Blair, 196. West precinct, 9th ward. 1856— Kennett, 31; Reynolds, 102; Blair, 267. 1858— Breckinridge, 46; Barrett, 418; Blair, 224. Total— 1856— Kennett, (American,) 432; Reynolds, (democrat,) 197; Blair, 646. 1858— Breckinridge, (American,) 370; Barrett, (democrat,) 1,349; Blair, 586. CONTESTED ELECTION CASES IN CONGEESS. 313 From this table it appears that, while there was no corresponding falling off of the vote of either the American candidate or Mr. Blair, (the one having lost 62 votes, and the other 60 votes only,) there was an increase of votes for the sitting member over that cast for the democratic candidate at the last election, in these four precincts alone, of 1,152 votes — nearly twice his whole majority. There was an absolute increase in these four precincts alone of 1,030 votes in an aggregate vote of only 2,305, all of which were cast for the sitting mem- ber. Had there been a corresponding increase in each of the thirty-five pre- cincts in this district, the whole vote of the -district would have been 26,453 votes against 13,765 at the last election, or a few votes only short of double. The whole vote cast for the sitting member would have been 16,458 against 2,281 votes cast for ihe candidate of his party at the last election-^an increase of more than seven-fold — and the majority for the sitting member would have been 10.984 votes. The committee have sought by this brief summary to present to the House, as clearly as they are able, without reciting in detail the evidence upon which the contestant urged before them that the entire polls in several of the pre- cincts to which that evidence more particularly applied, viz : the two precincts of -the 9th ward, the "Harlem House" precinct, the Carondelet precinct, and the " Gravois coal mine" precinct, should be rejected as so utterly and entirely unreliable that the truth cannot be deduced from them. The precedents of Congress justify the rejection of polls where the judges of election or clerks neglect or refuse to take the prescribed oath of offiqe. — (See McFarland vs. Purviance, Contested Election Cases, page 131 ; same vs. Culpepper, ibid., 221 ; Easton vs. Scott, ibid., 281.) Of the precincts above named, there was no evidence returned with the return of votes, nor before the committee in any shape at the hearing, that the judges of election were sworn in either the Harlem House precinct or the Gravois coal mine precinct ; nor was there any in respect to the G. Sappington precinct. Had it appeared from the evidence that the election had been fairly conducted at these precincts, and there were no traces of fraud, no taint of the ballot-box, the committee would not have been willing to have recommended a rejection of these polls. The honest electors should not be disfranchised and their voice stifled from a mere omission of the officers of election to take the oath of office ; but where, as in the case of the election districts now under consideration, gross frauds are made to appear, some of them of such a character as necessarily to complicate the officers of the election themselves; where the whole ballot-box becomes so tainted as to be wholly unreliable, and it is next to impossible to ascertain what portion of the poll returned is an honest vote ;. when one judge has been convicted by a jury of a conspiracy to cheat, another can neither read nor write, a third is so deaf as to be incompetent from physical infirmity to act ; where one mingles in the fights of the crowd, encourages illegal voting, forgets the obligations of his position in the zeal and passion of the partisan, it is believed by the committee that they could not do less than require of the sit- ting member to prove that these officers had conformed to the law before the votes they had (under these circumstances) returned should be counted. In this connexion they cite a late case of contested election in a court of law, the case of Mann vs. Cassidy, for the office of district attorney in the city of Philadelphia, at an election held October 14, 1856, contested in the court of quarter sessions in that city. * The facts in that case, as summed up by the presiding judge, are so parallel with those disclosed in this case that the com- mittee take the liberty to append them to this report in an appendix, marked A, and solicit the attention of the House thereto. A reading of the evidence, as thus summed up, and as contained in the proofs in this case, would almost lead to the conclusion that the one had been taken as the pattern of the other. After summing up the testimony at length, the judge concludes : " As the case 314 CONTESTED ELECTION CASES IN CONGRESS. now stands before us we should be derelict in our duty did we not unhesi- tatingly express our conviction that the acts of the officers in the election divisions to which we have referred, in the receipt and recording of votes, are so utterly and entirely unreliable that the truth cannqt be deduced from any records or returns made by them in relation thereto." And he adds : " Had we not erased from the petition the specifications alleging gross frauds and irregularities on the part of the election officers in the divisions referred to, a different course would certainly have been adopted. The entire proceedings were so tarnished by the fraudulent conduct of the officers charged with the performance of the most solemn and responsible duties that we would not only have been abundantly justified, but it would have been our plain duty to throw out the returns of every division to which we have referred." This language should not be applied indiscriminately to all the election officers in the precincts under consideration ; there were honorable exceptions ; but the election at these several places was so far under the control of men to whom this language is fitly applied, that the polls justly come under this con- demnation. The committee are aware that it is sometimes held that public ' officers are presumed to be qualified, and to have taken such oaths of office aa the law requires, and must be taken and deemed to have done so, in the absence of proof to the contrary; but in this case the law of Missouri expressly requires 4hat " a certificate of their qualification shall be returned with the return of the votes." It was .expressly charged as a ground of contest that they had not been sworn, (see 19th charge.) It would have been a matter of the greatest ease to have proved the fact, if it had been a fact, by summoning any one of these officers as a witness ; yet the sitting member, though he called many other witnesses to other points, at no time examined either of the fifteen men officiating at these precincts, or any other person, as to this fact. More than a month after the hearing before the committee had closed, just forty days after the parties had been fully heard upon all the points involved in the case, the sitting member presented to the committee two ex parte affi- davits, which, if true, would show that the judges of election at one of the precincts of the fifth ward, and at the Harlem House, were actually sworn, and asked the committee to either receive them as evidence or grant a delay and authority to put the evidence in the form of depositions. But it appeared strange to the committee that when the disqualification of judges had been made a special ground of contest nearly two years before, and a thousand pages of evidence had been taken, and the person who, by these affidavits, adminis- tered the oath of office had been a witness for the sitting member, and had never been asked the question, and the parties had been heard before the com- mittee at great length and 'to their content — it appeared strange that forty days after all this had been suffered to elapse before the existence of any such evi- dence had been suggested. The committee declined to receive the ex fyarte affidavits, and saw no reason for granting further delay. It will be seen, by the conclusion at which the committee arrived, that the result would.have been the same, whether the affidavits were admitted or not. As to the precinct at the court-house in the fifth ward, there was no allegation in the notice of con- test that the judges were not qualified, and the poll is not rejected by the com-; mittee ; and whether the Harlem House precinct be rejected or not, the result would be the same. But the offer of these affidavits to show that the judges at a precinct not contested on this ground, and another small one not affecting the general result, were qualified ; and |he omission of any such offer as to those precincts which would control the result, and were made a special ground of contest because of this omission to qualify, has forced the conclusion upon the committee that no evidence could be produced to show that the judges of election at the Gravois coal mine precinct, and of the G. Sappington precinct, CONTESTED ELECTION CASES IN CONGRESS. 315 were ever qualified, and that the omission to return a certificate was not accidental. Yet, had it been made to appe'ar that everything else had been regular Immediately after this election, the city authorities passed an ordinance requiring the cen- sus of the city to be taken. The city was divided into ten distinct divisions or districts, and the census takers, in addition to the enumeration of the inhabitants, were instructed to collect certain statistics, and, among others, in reference to the nationality, residence, and age of the inhabitants. These census returns were objected to by the sitting member, first, on the ground that the evidence was not competent, in any shape, and, second, that the manner of i producing it before the committee was not legal. That it was competent, in some shape, ap- peared to the committee apparent, from the tact, in respect to the greater portion of it, that the census taker himself came forward and testified to his own report ; that he found, at such a number, on such a street, A B, who told him he was not naturalized ; and at such a place or such a residence, C D, who told him he had not been in the city a year. At another place he found another, perhaps, who told him that he was a minor. From the memoranda which he made at the time he ascertained that the facts which appeared in his report betore him were correct, and he swore to them. Mr. Speaker, I find my time has nearly expired. I desire merely to say further in this matter, that, according to the rules of law and evidence, the census report which was pro- duced before the committee, as examined by the census takers themselves, and sworn to as correct, is competent evidence. , Now, sir, this I know : that this whole testimony, voluminous as it is, contains a great deal of chaff; a great deal of hearsay evidence, which has nothing to do with this case. My friends of the minority of the committee have shown great industry in collecting together as much as they could Of this hearsay evidence, and claiming — iu which the majority of this committee entirely concur— that it is not legal testimony on which a case can properly he made out. I have to say that the majority of the committee joined the minority in rejecting this hearsay testimony, and have applied it to no case in judging of the qualifications of voters, except to this extent: that the statement of a voter himself, in reference to his quali- fications, was admitted. They thought, with the minority of the committee, that, jn con- formity to precedent, that could be received as legitimate evidence in deciding upon the quali- fications of voters. The subjoined extracts are from Mr. Gilmer's argument against the report : Now, Lcall attention to the general terms in which the majority of the committee dispose of this matter of the 663 illegal votes. They say that many of these votes are shown to have been illegal by the oath' of the census taker and by the testimony of the voters themselves. But why did they not tell the House how many of these 663 votes were thus shown to be il- legal ? If it had struck them as important, they should, in furnishing information to the House, have staled how many of these 663 votes were shown to be illegal by witnesses hav- ing knowledge oi the fact. That showing, correctly made, would 'have put an end to all this controversy. But because some of these 663 votes aie shown to have been illegal, and to have been counted for Mr. Barrett, they come to the conclusion that the whole 663 votes were illegal, and were counted for Mr. Barrett. The evidence as to their illegality only goes- to some Ml or 30 of them— certainly not to half the remaining majority— and yet they apply that evidence to the whole. Then, again, what right had this census taker, in taking the enumeration of the city, to say anything about the nativity, age, birth, or length of residence of tho citizens 1 There was no law to authorize any such a thing. The gentlemen on the other side have not pretended that there was any such law ; at least, they have not been kind enough to furnish us with it. They do show the authority of the court to appoint a census taker, whose duty it is to make a correct enumeration of the inhabitants ; and when he has done that, I conceive he has dis- charged all the duty the law requires of him— all that he could legally or authoritatively do. CONTESTED ELECTION CASES IN CONGRESS. 323 If, however, a witness had voluntarily-gone around the city — I care not whether according to law- or contrary to law — and taken the statements as to these voters themselves, as to their length of residence, as to their not being of age, or as to their not being naturalized, and, this being done, Mr. Blair had notified the sitting member that he would take evidence as to the truth of these unauthorized notes or memoranda on the census list, before a com- missioner, that would have altered the case considerably, especially if the census taker, or other witness, had proved these notes- or memoranda were true. The proof shows ille- gality extending to "27 or 30 votes ; certainly not to the extent of half the remaining ma- jority. The statement of the census taker proves nothing, any more than would a letter from a respectable citizen, stating what he had found out in his travels among the people, not otherwise in the usual and established way proved to be true. Now, the majority have furnished us here with the law under which this census was taken, and I will call the attention of the House to it : ' ' AN ORDINANCE providing for taking the census of the city of St. Louis. "Sec. 1. Be it ordained by the city council of the city of St. Louis, That the mayor shall appoint ten competent persons, who shall act in conjunction with the city assessors, whose duty it shall be to proceed immediately to take the census of the city of St. Louis, in con- formity with existing ordinances. "Sec. 2. So much of ordinances Nos. 3,433 and 3,573 as conflict with section one of this ordinance are hereby repealed. "Approved August 13, 1858." There is no ordinance authorizing any such census, to the extent as is claimed by the con- testant was taken, to be taken. There is no law of Missouri, I repeat, authorizing any such census as that to be taken. If there is any such law, or any such ordinance, it has not been shown to the committee ; and, in accordance with all reasonable rules,- it devolves upon the majority of the committee to show that there was such legal authority. I take it for granted, then, that this census taker had no more right, when he went round to take this census, to attach to the names of the persons upon his list any memoranda in re- lation to their qualifications to vote, either as to residence, age, nativity, naturalization, or an> thing else, than any one else ; and if he performed such a work without the authoiity or sanction of law, I submit that it only amounts to the same thing as if it had been done- by anybody else, and is entitled to no more consideration at our hands. Why, in this case Mr. Blair did not have the census taker examined upon the whole list returned by him. Accord- ing to the evidence, he did not go to the houses and examine the parties whose names he put upon his list, but he inquired of their neighbors, their wives, their children, and he sets down on his list notes according to such suggestions as he could get from others, we know not from whom. He then attaches to their names these thus obtained facts about age, naturalization, and residence. Now, sir, as to the fact that the sitting member had these witnesses withiu his reach, and did not prove these notes or memoranda of the census taker to be true, there is no legal affirmative proof upon the subject of these notes. When my friend comes to con- clude this debate, as he will have at least twenty-four hours for preparation, then I want him to show the House, by any witnesses who testify from actual knowledge, that these 663 votes were illegal ; if not all, how many. When he shall have done that correctly and fairly, as he will doubtless if he attempts it, we will have important and material light before us. I am ready to admit that when a census is taken in conformity to law, and becomes a record, or quasi record, it may amount to something in the shape of evidence for some pur- poses ; but unless it has been taken according to or by an authority of law, and then, unless a certified transcript or a sworn copy of it be produced, it cannot be received as evidence in the case ; just as the return of a sheriff on an execution, a fiat of a judge,, or any other judi- cial act that is required or authorized by law, either State or federal. Is that the law ? To ascertain that fact, all the House will have to do will be to turn their attention to the mode by which this proof is brought here. They will find that the number orjthese illegal voters, footing up 663, is not proved by any admissible evidence. You may take the Vallandigham case, or any other case that has ever been adjudicated in this house, as your standard for ad- mitting evidence, and you will never get these 663 votes proved illegal, by many, many figures. We have to arrive at that point, or the conclusion of the majority report cannot be sustained. When we look at the testimony, according to my recollection of it, in one case else." „ ,. , Now, Mr. Speaker, I ask the members of this house to read this evidence. You will not be put to much trouble about it. If you will take the minority report, it will direct you to the evidence upon these points ; and when you have gone through it, you will be able to judge for yourselves the number of these 663 votes that are proved to be illegal. If you re- ject every vote about which there is any sort of.evidence, you will still have some three hun- dred or more remaining. I speak in round numbers. 324 CONTESTED ELECTION CASES IN CONGRESS. Now, this is the point in this whole case. It will so appear to every lawyer, and to every member of this body. It not only appeals to our sense and to our judgment, according to the rules of law arriving at truth, but to our consciences enlightened, " to do to others as we would that others should do to us.'' In a matter of such importance as this I will not per- mit myself to believe that members will decide upon it from feeling and party prejudice, or without giving the case, its due consideration in relation to the law applicable to the case, and the facts proved according to reasonable and established rules and usages. As to this matter of qualifying the judges, I respectfully call the attention of the House to the authorities referred to in the report of the minority. Mr. Blair, at the Beginning, acted on these authorities. When he started, he seems to have been a better lawyer than when he closed the case. He seems to have been aware, himself, that judges in a court, or at an elec- tion, if they discharge the duty assigned to them by the law, their judgments are considered regular until the contrary is shown. They are presumed to act under the oath which the law requires they should take before they do anything. If a party undertakes to traverse the legality of the judgment of the judge of election on his return, it devolves upon him to show the alleged illegality. The contestant in this case stated that he was going to take tes- timony to show that these judges of the election were not sworn, but he has failed to do so. It was his duty to have furnished proof on that subject. This he fails, to do. And what does he then do ? In their report the majority of the committee, in substance, say for him : ' ' Inasmuch as I gave you notice that I was going to prove that fact, and inasmuch as that is one of the grounds of my contest, and you did not disprove it, therefore it must be taken as I have alleged it to be, although I have taken no proof, as I said that I would." How would it be with a court ? Suppose you give notice that you impeach its judgment, upon the ground that" the officer who adjudged or certified to it was not sworn ; when the trial comes on, you have taken no proof on that'point ; can you be heard and say that you gave notice, hut have taken no proof, yet inasmuch as the adversary has not disproved the' fact, it must be taken as proved that the officer was not sworn ? Throw out the three precincts referred to by our friends ; admit their showing to be right ; and throw out all improper and illegal votes proved, and there are left hundreds for Barrett's majority, and he is proved to be entitled to his seat. There cannot be, as I humbly submit, any difference of opinion among the legal profession of the House on this point, whieh is the material one in the case — I mean as to the character of proof necessary to 'make out these 600 illegal votes. These votes have not been shown — I mean the much larger portion of them — to be illegal by any rules established in any court ; by any rule of practice to be found in any book regulating the practice of any court, State or federal; or by any rule upon which any legislative body has acted in similar cases. Under the census decree, or ordinance, there was no power to take anything but an enumeration of the citizens. The census taker, under the ordinance, had no authority to inquire in reference to the qualifica- tion of the voters. He was not instructed by this ordinance to do any such thing. J ask who instructed him to do this ? In all fairness, I submit that it is not insisting on too much to say that the memoranda which tlie census taker made as to the qualification of voters were nothing more than if made by anybody else. It would be carrying hearsay a long way to give any effect and force to them. Upon the census report, Mr. Stevenson argued as follows : I am thus particular, because the authority to take this census, in its limitation upon the census takers as to the subject-matter of inquiry in making this enumeration, is the pregnant and beginning point in this discussion. The ordinance which I have read confines the per- , sons charged with the duty of its execution to a simple enumeration of the inhabitants of the city. _ Their inquiries by law stopped there. I was, therefore, astounded by a statement in the majority report, that the census takers were instructed, in addition to an enumeration of inhabitants, to ascertain and report various other matters of statistical information. I deny that any such instructions were given, or that any authority existed for making them. This statement of the majority is gratuitous — unsupported by evidence, and unfounded in fact. In order that I may do the majority of the committee no injustice, I read from theii report on this point : "On the 13th day of August, 1858, the city council of St. Louis passed an ordinance tc take the census of the city provided by its charter and previous ordinance^. A copy of this ordinance will be annexed to this report. For this purpose the city was divided into districts, and census takers were appointed for each census district. They were instructed, in add! tion to an enumeration of the inhabitants, to ascertain and report various other matters o: statistical information ; among which was the nationality of the inhabitants found withir their respective precincts, and, whether naturalized or not, if foreign-born ; how long, resi dent," the illegality is the same. The allegation would be equally valid if asserted of the State of New York as of the half of the city of Baltimore. It might well be true that there were associated at every poll in the State to exclude by violence or intimidation the opposite party, and that they did exclude thousands. Yet 2,000 out of 500,000 would satisfy the allegation, and the exclusion of one or two persons at each precinct would make up the number. 346 CONTESTED ELECTION CASES IN CONGRESS. And under the allegation in this case, 1,990 may have been excluded at one ward, and one at each of the other wards ; and this is relied on to avoid the wlioli election at all twelve of the wards. It is therefore apparent that there is no case stated to avoid either the whole election or any part of it. It is not stated that the combination anywhere ar- rested the election, nor anywhere made such a display of force as ought to have intimidated men of ordinary firmness ; still less is either of these material facts alleged to have occurred at all, or at. a majority of the wards, nor is it stated that so many as a dozen men in the whole district approached the polls and offered to vote and were repelled, or attempted to approach, and were repelled. [The report closes as follows :] Such a case, supported by such testimony, discredited by such circum- stances, and failing in every material allegation, conducted by a political asso- ciation in the name of the contestant, and inspired in great measure by personal malice against the sitting member, manifested by the libellous allegations of the petition, disproved by the testimony taken to support them, ought to be treated as a vexatious prosecution, and rebuked by the judgment of the Housed The committee, therefore, report the following resolution : Resolved, That the sitting member, Hon. H. Winter Davis, is entitled to his seat in this Congress. The case was nbt taken up for consideration in the House. THIRTY-SIXTH CONGRESS, SECOND SESSION. ' Preston vs. Harris, of Maryland. In this ease there were sweeping allegations of fraud, but the evidence was held to be in- sufficient. - IN THE HOUSE OF REPRESENTATIVES, Fbrruary 27, 1861. Mr. McKnight, from the Committee of Elections, made the following report : The allegations of the contestant are sweeping in their character, vague, gen- eral, and unsustained by the evidence in the case. Many of them are insuffi- cient in law, even if supported by proof; and such of them as might be held valid in law are not shown to be true by the testimony. The case of the con- testant, both upon the law and the testimony, fails to affect the right of the sit- ting member to his seat, which the committee unanimously decide him to be entitled to hold. For greater facility of review, the notice of the contestant to the sitting mem- ber, setting forth these allegations, is subjoined : Pleasant Plains, Baltimore County, Md., November 30, 1859. Sir : You are hereby notified that I intend to contest your election as a representative in Congress from the third congressional district of Maryland to the 36th Congress of the United States. In 6aid contest I shall rely upon the following grounds : First. That the election alleged to have been held for a representative in Congress, on the first Wednesday of November, 1859, in that part of the city of Baltimore which constitutes a portion of. the third congressional district of Maryland, is null and void, because the judges of election who professed to hold the same were not legally qualified to act, nor was said election held pursuant or according to the laws of the land. Second. That if said election in said portion of said congressional district was held by judges legally. qualified to act and hold the same, said election in the first, second, -third, CONTESTED ELECTION CASES IN CONGRESS. 347 fourth, fifth, sixth, and seventh wards of said city of Baltimore was illegally and improperly conducted; that within said seven wards and on said day, by reason of violence, and with the aid and use of fire-arms, deadly weapons, and instruments of torture, illegal combina- tion, fraud, conspiracy, collusion, obstruction, intimidation, breach of the peace, bloodshed, and murder, a large number of legally qualified voters who desired to vote and would have voted for me were prevented; from exercising the right of suffrage, whDe other persons not legally qualified to vote were permitted to vote and did vote for you ; each or many of said last-mentioned persons voting for you in the same ward, or in different wards of the said seven wards, several times on said day. . Third. That many persons legally qualified to vote, and who, if left to the free and legal exercise of their rights, would have~ voted for me, were unlawfully seized, confined, and for- cibly carried to the polls within the said seven wards, and there, under terror of death or great bodily harm, compelled, against their wills and conscientious sense of right, to vote, and did so vote for you. Fourth. That for the purpose of carrying into effect, within the said seven wards, the out- rages hereinbefore mentioned, tickets with your name thereon, peculiarly shaped and par- ticularly marked, were prepared and used, thereby violating the spirit of the election laws, and utterly destroying the privilege of secret ballot. ' Fifth. That in the portion of the third congressional district composed of the eighth ward of the city of Baltimore, and the eighth, ninth, tenth, eleventh, and twelfth election districts of Baltimore county, wherein, upon said first Wednesday of November, 1859, said 1 election was conducted fairly, properly, and legally, I received of the whole of the votes cast for the place of representative in Congress a majority of one thousand four hundred and thirteen votes, in virtue of which majority I claim to represent the third congressional district of Maryland in the 36th Congress of th8 United States. Sixth. That upon the said first Wednesday of November, 1859, I did receive within the third congressional district of Maryland a majority, or the largest number, of the whole of the legal votes cast for the place of representative in Congress from said district, and there- fore claim to represent said district in the 36th Congress of the United States. I am, sir, very respectfully, your obedient servant, WM. P. PRESTON. Hon. J. Morrison Harris. The first allegation, that the judges who conducted the election in that por- tion of the city forming part of the congressional distiict, and in which the great mass of the whole vote was polled, were not legally qualified to act, has no force whatever outside of its mere statement by the contestant in his notice of contest ; for not only is it absolutely contradicted by the sitting member, but the contestant has not even attempted to sustain it by the production of a par- ticle of proof. So also fails the subsequent allegation that the election was not held pursuant to the laws of the State. Upon the allegation that such a condition of lawlessness and riot prevailed in the seven city wards that gave heavy majorities for the sitting member, the committee believe that while there is some conflict of testimony as to, individual cases of violence and obstruction of voters, no such condition of things is any- . where shown to have existed as to justify the rejection of any of the sitting member's majorities in any of the specified wards, or at all' to bring the case within the recognized ruling of the law of elections as to riots. It is proper to remark, in this connexion, that in the argument before the committee, while the sitting member expressed his great regret that anything objectionable should have marked the conduct of the election anywhere in his district, the contestant frankly and in the fullest manner exonerated Mr. Harris from any suspicion of encouragement or knowledge of any matters complained of. The committee refer here to the law upon the subject of election riots, that the -testimony in the case may be compared therewith. The only cases in which elections have been set aside for this cause are where there was riot at the polls, or such tumult as interfered with the election, and prevented an ascer- tainment of the result. This rule is laid down in 2d Hayward on County Elections, pp. 580, 581, 582, 584. This was a case where a riot occurred at the polls, that led to the assault of the high sheriff in the execution of his duty, and was of such a character as led- to the closing of the poll, and the election was set aside upon t-hia pro nnd and the illep-al ennflnnt nf tJin high sheriff. 348 CONTESTED ELECTION CASES IN CONGRESS. Another case will be found in 1 Kowe on Elections, p. 334, where there was uch ribt and tumult as to interrupt the election. And another case, in Sheppard on Elections, pp. 105, 106, where it was held that if riots are carried to a great extent, accompanied with personal intimi- dation, so as to exclude the possibility of a fair exercise of the franchise, they will avoid the election; as where, in this case, the returning officer, being alarmed, by the mob, offered to return whoever the sitting member chose to name; and he indicating himself, the sheriff returned him. And it is further laid down in 4 Selden, pp. 93 and 94, that, "should a gang • of rowdies gain possession of the ballot-box before or after the canvass of the votes, and destroy' the "whole or a portion of the ballots, or introduce others into the box surreptitiously, so as to render it impossible to ascertain the number of genuine ballots, the whole should be rejected." Also, in 1 Peckwell, p. 77, which was a case of ''the most enormous and unexampled riots;" and it was proved that the mayor was applied to to bring in the military to quell them, and the poll was stopped, and not resumed until quiet was restored. The same law is laid down in Heywood on Elections, pp. 580, 581, 582, 5S4; also in Kowe on Elections, p. 334; also in Sheppard on • Elections, pp. 105 and 106'; also in the celebrated Westminster cases and the Pontefract case. Now, it is very clear, from the evidence, that no such condition of things existed in the case under consideration. At every one of the polling places in the district of the, sitting member the election was uninterrupted; the votes were all quietly canvassed ; the judges ' signed the returns ; they were trans- mitted, as the law requifes, to the governor of the State; the governor made proclamation of the result, and transmitted to the sitting member a certificate of his due election. He is, therefore, in his seat under all the observed solem- nities of the laws of Maryland. The proof as to the facts of the case is contained in the testimony of twenty- three witnesses, thirteen of wjiom were produced on the part of the contestant, and ten on the part of the sitting member. The testimony of the contestant is very general and sweeping, instancing individual cases of assault and violence, but breaking down upon cross-examination. In the points most material to have been established by the contestant, viz : the exclusion, by violence, of a sufficient number of his friends Bhown to have been competent voters, and the deposit and counting, for the sitting member, of votes established to be illegal, the case fails utterly. An analysis of the whole testimony of the contestant does not show the exclusion of twenty legal voters who made reasonable efforts to vote; and not one dozen illegal votes are shown to have been cast and counted by the judges of election for the sitting member. Indeed, upon the point of illegal voting, the case is established in favor of the sitting member, not only by the inability of the contestant's own witnesses to prove the fact, and the general testimony against such an allegation by the witnesses of the sitting member, but by the direct testimony of the judges of election of both political parties. ******* The claim made by the contestant, that the returns from all the precincts. in which the sitting member received majorities shall be rejected, and those alone held valid from the single city wards and three county precincts in which the contestant had a majority, would be a simple but not a justifiable mode of reaching a result. In fine, the committee do not find anything in the testimony or the law of the case to justify any other conclusion than that the sitting member was duly elected and properly holds his seat, which result they reach without difficulty. The case was not reached in the House. CONTESTED ELECTION CASES IN CONGRESS. *349 THIRTY-SEVENTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Dawes, Massachusetts. Mr. Worcester, Ohio. Voorhees, Indiana. Brown, Ehode Island. McKean, New York. Menzies, Kentucky. Loomis, Connecticut. Patton, Pennsylvania. Baxter, Vermont. Shiel vs. Thayer, of Oregon. » The constitution of Oregon has fixed beyond the control of its legislature the time for holding an election of representative in Congress. The contestant having been elected on the day fixed by the constitution, the committee held that he was entitled to the seat. The House adopted the report. IN THE HOUSE OF REPRESENTATIVES, July 26, 1861. Mr. Dawes, from the Committee of Elections, made the following report : The questions raised before the committee by both contestant and sitting member, and, after a full discussion, submitted by each for their determination, have been entirely matters of , law and not of fact. The contestant rests i his claim to the seat' upon an election held in Oregon for representative in the 37th Congress on the first Monday in June, 1860, at which election it is admitted that he had a majority of all the votes cast. The sitting member rests his claim to the seat upon two grounds : 1st. That there is no law in Oregon providing for the election of a representative in the present Congress, and, consequently, that the election on the first Monday of June, 1860, being without law, was void. 2d. That the right of the people of Oregon to representation in Congress is a constitutional right, of which they ' cannot be deprived by the neglect or refusal of the legislature of the State to provide by law for an election ; and that the legal voters of the State, in the exercise of that right, did assemble on the sixth day of November last, the day of the presidential election, and cast their votes for him as their representative, and that he now holds his seat by virtue of said election. It is very evident that whether the last position taken by the sitting mem- ber be correct or not, if he is mistaken in the first, there was in November last no opportunity for the exercise of that constitutional right on the part of the people of Oregon. If the election held on the first Monday of June, 1860, at which the contestant received a majority of the votes, was held in pursuance of law, then the door was closed,- and he is entitled to the seat. The committee are of opinion that the election held for representative in Congress on the first Monday in June, 1860, was held in pursuance of, and in conformity with, the constitution and laws of Oregon, and that, consequently, the contestant is entitled to the seat. The people of the Territory of Oregon, on November 9, 1857, adopted a constitution and applied for admission into the Union. They were admitted as a State, under that constitution, on February 14, 1859. In that constitution it is provided, article 2, section 14, that "general elections shall be held on the first Monday of June, biennially;" and in article 18, the schedule, section 6: 350* CONTESTED ELECTION CASES IN CONGRESS. " If this constitution shall be ratified, an election shall be held on the first Monday in June, 1858, for the election of members of the legislative assembly, a representative in Congress, and State and county officers; and the legislative assembly shall convene at the capital on the first Monday in July, 1858, and proceed to elect two senators in Congress, and make such further provisions as may be necessary to the complete organization of a State government." The constitution having been, as before stated, adopted by the people in Novernber, 1857, in pursuance of the foregoing provision, an election was held on the. first Monday of June, 1858, at which a representative in Congress, the honorable Mr. Grover, was elected, and a legislative assembly, which met at the capital on the first Monday in July, 1858, and chose two United States senators, Messrs. Lane and Smith. On the admission of the State into the Union, February 14, 1859, Mr. Grover took his seat in the .House of Repre- sentatives, and Messrs. Lane and Smith their* in the Senate, by virtue of these elections. Mr. Grover's term of office expired on the 4th of March following. By another provision of the same schedule, section 7, it is provided that " all laws in force in the Territory of Oregon when the constitution takes effect, and consistent therewith, shall continue in force until altered or repealed." It was enacted by the territorial legislature in 1845 that "a general election shall be held in the several election precincts in this Territory on the first Monday of June in each year, at which there shall be chosen so many of the following officers as are by law to be elected in each year ; that is to say, a delegate to Congress, members of the territorial council and house of representatives, judges of probate, district attorneys," &c. The committee are of opinion that the "general election" provided for in the constitution, to be held once in two vears, on the first Monday in June, was designed to embrace at least all such officers as were to be voted for by the people of the whole State, including a representative in Congress ; and that, for- asmuch as the same constitution' provided for the' first of those elections, inclu- ding by name a representative in Congress, on the first Monday in June, 1858, an election should be held at the next general election in 1860 for a*fepresenta- tive to the Congress next to be held after said election, that is, to the present Congress; and that the contestant, having at that time received a majority of the votes cast, is duly elected. The committee would have had no difficulty in coming to this conclusion had it not been for the action of the legislature of Oregon upon this subject. Not- withstanding this constitutional provision that general elections shall be held on the first Monday of June biennially, the legislature of Oregon seems to have believed that it had power to fix another time for the election of representative in Congress. On the 1st day of June, 1859, a law was enacted providing for the election of a representative in Congress on the 27th day of June, 1859. By virtue of an election on that day, the honorable Mr. Stout received a certificate of election to the 36th Congress, and served during the term as such. At the session of the legislature in September last both branches acted upon the idea that notwithstanding this provision in the constitution of Oregon, the legislature had the power to fix another day for the election of a representative in Congress. A bill passed each branch fixing the day of the presidential election for an elec- tion of a representative in Congress once in four years, and for such election at the general election in the alternate years. But the two branches of the legisla- ture differed upon the question whether it should apply to the election of a rep- resentative to the present Congress, and so the bill never became a law. Various reasons have been^given for this action of the legislature, about which the con- testant and sitting member widely differ. The committee have not deemed it necessary to determine what those reasons are, for, with all due respect to the opinions of the gentlemen composing that legislature, they are of opinion that this house must nevertheless be the final judge of the meaning of this clause CONTESTED ELECTION CASES IN CONGRESS. 351 of the constitution of Oregon, so far as it touches the question under considera- tion. And for the reasons stated, the committee have no doubt that the consti- tution of the State has fixed, beyond the control of the legislature, the time for holding an election of representative in Congress at the general election to be held biennially, and that at such election so held in pursuance of the constitu- tion the contestant was duly elected to the thirty-seventh Congress. They therefore report the following resolutions : Resolved, That the Hon. A. J. Thayer is not entitled to hold the seat now occupied by him in this house as a representative from the State of Oregon. Resolved, That George K. Shiel has been duly elected as a representative from the State of Oregon to the thirty-seventh Congress, and is entitled to a seat in this house as such. The following extracts are from the debate in the House upon {he case : Mr. Stevens. Mr. Speaker, I am not going to take part with either of these gentlemen, the sitting member or the contestant, for I think that neither of them has any business here, and I shall vote in accordance with that opinion. I offer the following as a substitute for the resolutions reported by the Committee of Elections : "Resolved, That neither A. J. Thayer nor George R. Shiel is entitled to a seat in this Con- gress as representative from Oregon, and that the seat be declared vacant." , Now, sir, I will detain the House but a moment. I admit that the constitution of a State, when it is framed, may fix the time for the first election, because there is no other power to fix it, and that has been the practice ; but I maintain that the constitution of a State cannot fix the day for any future election of representative in Congress. I unde/stand one of these gentlemen to claim the seat by virtue of having been elected upon the day which he says was fixed by the constitution of Oregon — not the first election under that constitution. The legis- lature had not acted ; and upon that ground he claims that the action of the constitution was good. Sir, if the constitutional provision was good, it would prohibit the legislature from acting in the matter through all time to come. The legislature would have their hands tied, and would not be able to fix the times and places of holding elections in that State. But the Constitution of the United States comes in and prevents any such action of the con- vention of that State, for it expressly provides who shall fix the times and places of holding elections for members of Congress. Here is the language of the Constitution: "The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof." Now, sir, I hold that no other power in a State has a right to prescribe it ; and if the State legislature fails to fix the times and places, there is another provision of the Constitution by which Congress has the right to fix it, and I wish they would fix it, and fix it uniform through- out the United States. But I deny that the convention to frame the constitution of a State can fix the times and places for electing members of Congress, notwithstanding the provision of the Constitution which I have read. I have brought the question briefly before the House, and I suppose everybody understands it and is ready to vote. I understand that the gentlemen interested have exhausted their de- sire to speak, and as the chairman of the committee will be entitled to be heard after the main question shall have been ordered, I now move the previous questiqn. Mr. McClernand. I hope the gentleman will withdraw the demand for the previous question for a moment, until 1 can have an opportunity to reply to the position he has taken. I will do it in five minutes. Mr. Stevens. I am afraid we shall not dispose of this matter to-day, and as I desire to get.to other business, I will insist on the demand for the previous question. The previous question was seconded, and the main question ordered. Mr. Dawes. Mr. Speaker, I understand that the ground upon which the amendment is offered is simply this : that, in the absence of legislation in Oregon by its legislature, the constitution of Oregon having fixed the day upon which this election should take place, the House of Representatives is to say that the people of Oregon, acting through their constitu- tion — the highest and the organic law of the State — cannot fix the time and place for holding an election. If there were a conflict between the action of the legislature of Oregon ana its constitution, there might be some ground for the position which is assumed by the gentle- man from Pennsylvania. But the organic law, that which rises above and swallows up all legislative action, having determined that this election should be held on a particular day and in a specific manner, and the legislature of Oregon having acquiesced in that by pass- ing no law in conflict with it, it is assumed by the gentleman from Pennsylvania that it is proper for this house to say that the people.of Oregon shall not, in that way and in that manner, declare how and when and where^ their representative shall be elected. It occurs to me, sir, that that provision of the Constitution of the United States which says that the time and place shall be specified by the legislature of each State, meant simply that they should be fixed by the constituted authority of the State until Congress itself should fix a time for the election in all the States. As Congress has not fixed that time, it has said to every State, "you may, by your constituted authorities, through whom you choose to speak 352 CONTESTED ELECTION CASES IN CONGRESS. in your law, fix the time." Now, the legislature of the State of Oregon has acquiesced, if nothing more, in the time fixed by the constitution, the organic law of Oregon. _ ' Mr. Stevens. The organic law of Oregon is not definite. It fixes the first election, but not a word about any subsequent one. Mr. Dawes., The organic law of the State says that all these general elections shall be held on the first Monday of June, biennially, and specifies what officers shall be elected on that day. Among them is a member of Congress. If, therefore, it is in the power of the State of Oregon, through its constitution, to say when this election shall be held, it has so said, it seems to me, as plainly as it could say it. Mr. McClernand. I understand that the gentleman from Pennsylvania concedes the proposition that the convention was competent to invest the legislature with power to fix the time for holding the first election. Mr. Stevens. No, I did not state that. I say I believe it has been done. I doubt the authority altogether. Mr. McClernand. That is a very different position altogether. Mr. Stevens. They had a right to fix the time for their general elections. I admit that. Mr. McClernand. Then your position is that the convention was not competent to fix the time for an election. Mr. Stevens. It was competent to fix the time for general elections, but not for the elec- tion of a member of Congress. Mr. Dawes. I was about to remark that the position of the gentleman from Pennsylva- nia is in the face of all the precedents of this house — precedents followed when Oregon her- self was admitted into the Union; for the House then acknowledged, as a representative legally elected, a man chosen at a time and place not specified by the legislature of Oregon, but by the constitutional convention — in. the same instrument that specified that his successor should be elected two years from that time. The House of Representatives, in admitting my friend from the state of Kansas [Mr. Con- way] as a representative on this floor, adopted this same construction of the powers of a State — that it could fix the time of election, either by their constitutional convention in their organic law, or by their legislature. My friend came here not by virtue of any election held at any time and place fixed ,by the legislature of the State of Kansas ; and such is the history of all these new States. It seems to me that there can be no ground for the House adopting the amendment to the report of the committee, offered by the gentleman from Pennsylvania. The sitting member does not claim to have been elected in pursuance of any law, or of any constitutional pro- vision whatever, but on the general right to representation which the people have. The con- testant is here by virtue of an election, at a time and place fixed in the constitution of Oregon itself; in compliance with which the legislature has forborne to this day to fix any other time and place. Mr. Thomas, of Massachusetts. Is it competent for the legislature of Oregon to fix the time and place of an election, in violation of the State constitution ? Mr. Dawes. If it is not competent for the legislature, in consequence of the constitu- tional provision, to fix a time, then the constitutional provision overrides the legislature of Oregon, and therefore it has performed this act itself. Mr. Thomas, of Massachusetts. If it overrides the legislature, does it also override the provision of the Constitution of the United States, by which the legislature is to fix the time of the election of members? Mr. Dawes. Both of my colleague's propositions cannot, of course, be true. It cannot be true that the legislature of Oregon cannot fix the time of election because of the Slate constitution, and be also true that the constitution of Oregon cannot override the legisla- ture, by reason of the Constitution of the United States. The two propositions cannot be true. Either the legislature of Oregon can, notwithstanding the provisions of the State con- stitution, fix the time of the election of members, because of the Constitution of the United States, or else the people of Oregon can do it through their constitution as well as through their legislature. , Now, the House may be prepared to depart from all its precedents. There may be other considerations. Of course, the Committee of Elections can have no feeling on the subject. They simply desire that the action of the House touching the graVe and serious question of the right of members to their seats in this house shall be adjudicated solely on' the law, with- out reference to any outside, considerations. Moved solely by that consideration, the com- mittee have unanimously come to the conclusion that there is a Jaw in Oregon — that which has the highest sanction of law — fixing the time and place for the election of members of Congress, and that the contestant, in pursuance of that law, was elected to this house. Mr. Stevens's amendment was rejected — yeas 37, nays 77. The House adopted the resolution reported by the committee without a di-' vision. Note. — The debate will be found in the Congressional Globe, vol. 45. For the report : Mr. Dawes, pp. 352, 357; Mr. Shiel, p. 354. Against the report: Mr. Thayer, p. 353; Mr. Stevens, p. 356. CONTESTED ELECTION CASES IN CONGRESS. 353 , THIRTY-SEVENTH CONGRESS, SECOND SESSION. Butler vs. Lehman, of Pennsylvania. Where the board of return judges certified to the election of a representative, and it was afterwards proved that one of the returns was a forgery, the governor of Pennsylvania took notice of the fact, and by proclamation declared the opposing candidate duly elected. The House sustained the action of the governor. Where a recount of boxes sustained allegations of mistakes in the original count, the com- mittee reported in favor of the contestant. The minority of the committee dissented, upon the ground that the identity of the ballot-boxes was not established, and that they had not been so kept as to rebut a reasonable presumption that they had been tampered with. The House refused to sustain the majority report. IN THE HOUSE OF REPRESENTATIVES, January 7, 1862. Mr. Loomis, from the Committee of Elections, made the following report: The first district of Pennsylvania is composed of the first, second, third, fourth, and seventh wards, and of the 1st, 2d, and 3d divisions of the fifth ward in the city of Philadelphia. Said wards are by law divided into election divi- sions or precincts for voting. There are fifty-one such divisions within said congressional district. The election at each of said divisipns is conducted by one judge and two in- spectors, who are chosen annually; and in order to guard the rights of the minority, and to give to each of the two larger parties an inspector, the law of Pennsylvania wisely provides that each voter shall vote for but one inspector, and that the two persons receiving the highest number of votes shall be declared elected to that office. But in wards or divisions where one political party can give a majority larger than the entire vote of the other party, it has been the ' practice in said first district for the dominant party to divide their votes so as to elect both of the inspectors, thus evading the spirit and object of the law. The law of Pennsylvania further provides that each inspector shall appoint one clerk to assist at the election, and upon application of twenty citizens the court of common pleas can appoint three watchers to be present at each pre- cinct. It is made the duty of the judge in every election division on the night of the election to make out and subscribe a certificate of the votes there given, and on the next day to file the same with the prpthpnotary of the court of com- mon pleas, and to return a duplicate of the same to a meeting of all the judges and inspectors from the several divisions of the ward, who are required to ascer- tain the vote of the ward, and return the same by one of their number, duly elected by them as _of Congress, and filed the same in the office of the prothonotary, in the court of common pleas ; and that said officers falsely and fraudulently counted and certified divers votes (a particular number being specified in each case) in favor of the sitting member, that had been fairly and legally cast and voted for CONTESTED ELECTION CASES IN CONGRESS. 355 the contestant; and to sustain the allegations thus made- the contestant gave due notice that he should claim and ask to have a count of the ballots in the several ballot-boxes of the aforesaid divisions and wards. The committee are of opinion that where the ballots themselves cast at any election are preserved, they will furnish the best evidence of the number of votes which each candidate received. And it seems that the laws of Pennsylvania contemplate that in case the division returns are disputed, the ballots themselves shall finally settle the question. The law of Pennsylvania on this subject may be found" in Purdon's Digest, section 55, page 287, and is as follows : As soon as the election shall he finished, the tickets, list of taxables, one of the lists of voters, the tally papers, and one of the certificates of the oath or affirmation taken and subscribed by the inspectors, judges, and clerks, shall all be carefully collected and de- posited in one or move of the ballot-boxes, and such box or boxes, being closely bound round with tape, shall be sealed by the inspectors and the judge of the election, and, to- gether with tbe remainingjballot-boxes, shall, within one day thereafter, be delivered, by one of the inspectors, to the nearest justice of the peace, who shall keep such boxes con- taining the tickets and other documents to answer the call of any person or tribunal au- thorized to try the merits of such eleetion. The contestant, in pursuance of this statute and of the notice served by him upon the sitting member, caused the ballot-boxes in eleven divisions, hereinafter named, to be opened and the ballots deposited therein to be recounted before the recorder of the city of Philadelphia, and in presence of both parties to this contest, and their counsel, the result of which is exhibited in the following ta- bular statement : FIRST WARD. Butler. Lehman. King. Eighth division, official vote 160 214 31 Eighth division, recount 156 209 31 Butler's gain, 1 vote. SECOND WARD. Second division, official vote 229 134 39 Second division, recount 252 122 26 Butler's gain, 35 votes. THIRD WARD. Second division, official vote 112 117 59 Second division, recount 157 92 33 Butler's gain, 70 voteB. * Third division, recount agrees with official. Sixth division, recount agrees with official. Seventh division, official vote 128- 311 22 Seventh division, recount 129. 309 20 Butler's gain, 3 votes. SEVENTH WARD. Eighth division, official vote 165- 238 12 Eighth division, recount 175/ 228 12 Butler's gain, 20 votes. FOURTH WARD. Sixth division, official vote . . .. . 61 222 5 Sixth division, recount .......... 64; 248 6 Butler's gain, 7 votes. 265 41 260 40 230 5 218 7 104 14 109 10 356 CONTESTED ELECTION CASES IN CONGRESS. Eighth division, official vote 119 Eighth division, recount ., 123 John Butler 1 Butler's gain, 10 votes. Seventh division, official vote 44 Seventh division, recount 53 Butler's gain, 21 votes. * Ninth division, official vote 176 .Ninth division, recount 176 Butler's gain, 5 votes. RECAPITULATION. First ward, eighth division ; gain for Butler 1 Second ward, second division ; gain for Butler 35 Third ward, second division ; gain for Butler 70 Third ward, seventh division ; gain for Butler 3 Seventh ward, eighth division; gain for Butler 20 Fourth ward, sixth division ; gain for Butler. .\ . 7 Fourth ward, eighth division ; gain for Butler 10 Fourth ward, seventh division ; gain for Butler 21 Fourth ward, ninth division ; gain for Butler 5 Total gain for Butler 172 But the ninth division, fourth ward, is not contained in the specifications of the - contestant. The box was opened by mistake for the seventh division, fourth ward ; but after counting the ballots the respondent claimed it to be the box of the ninth division, which the contestant admits. Here is a gain of five votes which justly belongs to the contestant, but as he omitted to specify this division the committee have deducted them, and there- fore find the, gain for Butler to be 167 votes. The whole plurality for Lehman, on all the division returns, is 132 votes, leaving a clear plurality for John M. Butler (the contestant) of 35 votes. If this recount of the ballots is to be relied upon, it necessarily follows that the contestant is entitled to his seat. It is conceded that the recount was correctly made, being done in the pres- ence of both parties to this contest. But the respondent makes two objections to the recount which deserve consideration : 1st. That the ballot-boxes were not sufficiently identified as belonging to the divisions alleged. 2d. That the boxes had been opened and contents changed hefore the recount took place. Before considering these objections it should be remarked that they are con- fined to the ballot-boxes in three divisions only, viz : the 2d division of the third ward, where the recount made a gain for Butler of 70 votes ; the 2d divi- sion of the second ward, where the gain for Butler was 35 votes ; and the 7th division of the fourth ward, where the gain was 21 votes. 1 . Are these three boxes sufficiently identified 1 The testimony shows that there was much difficulty in determining to what particular divisions the boxes belonged before they were opened, as the boxes generally were without labels or external marks of identification. But it is not essential that the boxes should be. identified before being opened. After any box had been opened there was little danger of mistake in determining to what election and to what division it belon — J CONTESTED ELECTION CASES IN CONGRESS. 357 In every division they had a large box in which the affidavits of the election officers, a list of voters, taxables, and other papers pertaining to the election, were deposited, and a smaller box in which were deposited the ballots. These boxes were sealed up and carried together to the nearest alderman, and left in his custody. Upon opening these larger boxes and examining the papers, the particular division would be certainly known, and it would be known also that the accom- panying ballot-box for the same division must be found in the same custody ; and upon opening one of the smaller boxes, the ballots themselves would indi- cate in what election they were used. If the names of the contestant and respondent, as candidates for Congress, were found on the tickets, it would be certain that the ballots were cast at the election in question, as those gentlemen were never opposing candidates at any other time. The number of ballots in the box will generally afford a safe test of the divi- sion to which it belongs, by comparing the number with other divisions, with the official returns, number of voters, &c. In the three disputed boxes under consideration the aggregate number of ballots, as recounted, was, in one box, but one less ; in another, two less ; and in the other only six loss than the official returns ; and there were no other divi- sions with which they would compare as well. But there is still more conclusive evidence of the identity of the boxes in question. Two of the boxes were left with Alderman Carter, and the other with Alder- man McMullen. The former received, in all, the boxes of three divisions only, viz : 2d division third ward, 2d division second ward, and 3d division of the third ward ; and all these boxes were produced, and examined. The 3d division of the third ward is admitted to have been identified, the recount agreeing per- fectly with the official return. The box of the 2d division, second ward, was marked by one of the judges of election, and by him positively identified. — (See the testimony of Merritt Gibson, printed evidence, page 81.) So that it follows that the remaining box must belong to the 2d division of the third ward. Alderman McMullen received and produced for examination the boxes of four divisions, which were all he received, viz : 7th division of the fourth ward, (the disputed box,) and the 6th, 8th, and 9th divisions of the fourth ward, and here the three divisions last named are admitted to have been identified ; the other box therefore must be the 7th division of the fourth ward. . The committee therefore consider the identification of the boxes complete and "satisfactory. 2. The other claim of the respondent is that the boxes had been tampered with before the recount took place. The contestant produced these boxes from their legal and rightful custodians, sealed up, and in the same apparent condition they were in when left with the alderman. Under these circumstances the burden of proving them to have been tampered with properly rests on the respondent ; but no proof upon this point was submitted, except some testimony showing that some of the boxes were left in such a situation that it was possible for some unauthorized person to have meddled with them. But there is no proof to render it probable that such was the case. The respondent attempts to rebut the evidence afforded by the recount of the ballots, by calling the election officers who made the division returns to testify that those returns were correct; but in the opinion of the committee this testi- mony neither impairs the case of the contestant nor strengthens that of the respondent. Officers who had declared upon their official oaths that returns made by them were true, would not be likely to come into court afterwards and swear that they were false. a 358 CONTESTED ELECTION CASES IN CONGRESS. The committee have not deemed it necessary to determine whether the errors in the division returns, before mentioned, were the result of deliberate fraud or mistake on the part of the election officers, for the motive which actuated them is immaterial. It is enough that the returns in the divisions specified were false in fact, and that the contestant was thereby deprived of votes fairly and legally cast for him, enough to have elected him ; of this the committee are fully con- vinced. They consider the case of the contestant clearly proved, and that he is entitled to the, seat now occupied by William E. Lehman, and therefore they submit the following resolutions, -and recommend that the same be adopted by this house : ; Resolved, That William E. Lehman is not entitled to a seat in the 37th Congress, as the representative from the first congressional district in the State of Pennsylvania. Resolved, That John M. Butler is entitled to a seat in the 37th Congress, as the representa" tive from the first congressional district in the State of Pennsylvania. The minority of the committee in their report argue as follows : It is well settled that the primary returns of votes made under State authority, such as these division returns, are prima facie evidence of their legality, of the number of votes cast, and the rights of the respective candidates. — (See Spaulding vs. Mead, Cong. Con. Elec, p. 159; Bassett vs. Bailey, Cong. Con.- Elec, p. 254; Eead vs. Kneass, 2 Parsons, selected cases, p. 573.) The inquiry now presents itself whether the testimony of the contestant' is sufficient to overcome the legal effect of these division returns and the other testi- mony of the sitting member. In order to determine this question satisfactorily, the undersigned regard it sufficient to review that portion of the testimony taken by the parties, relating to the recount of the contents of the ballot-boxes, claimed by the contestant to have been used in three only of the election divisions — those of the 2d division of the 2d ward, the 2d division of the 3d ward, and the 1th division of the Mh ward. The ballot-box of the division last mentioned was found in the possession of Alderman McMullen, and those of the other two divisions in that of Alder- man Carter; these aldermen being the magistrates nearest the place of holding the election. The testimony of the election officers in these three divisions was taken by the sitting member/showing the manner in which the election was conducted, the votes counted, tallied, and certified; but no testimony in respect to the like matters was taken by either party in respect to the election in any other district. The gain claimed in the 7th division of 4th ward is 21, The gain claimed in the 2d division of 2d ward is 35 The gain claimed in the 2d division of 3d ward is 70 Making the gains in these three divisions 126 The gain claimed in the other eight divisions is 46 Making the aggregate gains claimed, as above stated 172 If the 46 votes above mentioned should be allowed the contestant, it would still require 87 of the remaining 126 to elect him; so that if the 70 votes above specified as gained in the 2d division of the 3d ward, or those gained in the 2d division of the 2d ward and the 7th division of the 4th ward, should be rejected, in either case the sitting member would still have the majority. In order to command confidence in the recount of any of these ballots, it is necessary for the contestant, first, to establish the identity of the ballot-boxes ; and, secondly, to show that those boxes had been so kept as to rebut any reasona- ble presumption that they had been tampered with. The testimony of the con- testant was mainly directed to these two points ; but there was much difficulty in each Case, with one Or tWO exceptions in fis taKlishing this idfint.itv. CONTESTED ELECTION CASES IN CONGRESS. , 359 These boxes are provided by the city officers; and those used in the different election districts are described by the witnesses as being of the same size and color, had been used at many previous elections, tied round with tape in the same way, and sealed by dropping upon the tape melted sealingwax, ordinarily without an impression of a seal of any kind, or without labels or other indicia to denote when or in what election districts they had been before used. Twenty or more of these boxes were found with the several aldermen called on to pro- duce them. These boxes had been used at the several fall and spring elections in the years 1859 and 1860 ; those used at different elections being indiscriminately mixed together, and apparently kept in places to suit the convenience of the al- derman and his family, rather than in such as were adapted to the safe-keeping of their contents. The testimony of Alderman McMullen well illustrates the difficulty under which the witnesses labored in their efforts to identify these boxes. Those of four divisions of the fourth ward appear to have been left with this witness, though at first he seems to have been confident he had those of only three, belonging to the 6th, 7th, and 8th divisions, but after some days he supposed, from its contents, that he had discovered that of the 9th. He was first called on to produce the box containing the election documents of the 8th division, made at the October election. He first produced a box with the label of that division upon it, which, upon being opened, was found to contain the election documents of the presidential election, held in November. In the same manner, while in pursuit of the box in question, three other boxes, produced by this witness, were opened before the one sought for was identified, and then identified only by its contents. The election officers, whose testimony, as to the ques- tion of identity, would have been the best in the case, were not called at all by the contestant; and afterwards, when called by the sitting member to testify to other matters, were unable, except in a single instance, to identify these boxes, and, in respect to each box opened, they testified that, if the boxes were the same, the votes taken from them on the recount were not those put in them by the officers on the night of the election. The most satisfactory evidence as to this pointof identity was the result of the recount. If it coincided .with the of- ficial return of the judges and tally-list, as was the fact in two cases, the proof on this point was sufficiently conclusive. If the difference between the recount and the return were small, as it was in most cases, varying from one to ten, the proof of identity from the contents would be less conclusive; but conceding the identity of the box, and also that the difference referred to was occasioned by the election officers, its smallness, in the judgment of the undersigned, would be much stronger evidence of mistake on their part than of the criminal fraud with which they are charged. In cases in which the disparity between the recount and the return was very considerable, the evidence of identity from the contents was far less strong, and the presumption upon this point becomes slight in proportion to the increase of this disparity. In instances in which this disparity was very large, (if admitted that it was occasioned by the election officers,) it would, unexplained, afford stronger presumption of fraud ; but should this presumption be rebutted by satisfactory proof, it would then furnish still stronger evidence that the boxes had been tampered with, it being at the same time shown that what the law denominates means and opportunity existed for such tampering. So far as facility of access to these boxes is concerned, they were much in the condition, as appears from the above testimony, they would have been if kept similarly exposed in the office of a country magistrate, or in a county court room, though the latter may not be " always open" like the offices of these aldermen. 360 , CONTESTED ELECTION CASES IN CONGRESS. If they were not tampered with during the long interval they were so kept, it was not for the lack of the means and opportunity. That the motive, for such tampering existed among some portion of the people in that community would hardly he denied by the contestant, in view of the very grave charges of fraud he has made against so many of its public officers. This tampering might as well have been done by the hand of one person as more. * # " # # # # " It is a presumplio juris, running through the whole law, that no person shall, in the absence of criminative proof, be supposed to have committed any violation of the criminal law, whether malum in se or malum prohibitum. And this presumption is not limited to proceedings instituted wilh the view of pun- ishing the supposed offence, but holds in all civil and other proceedings for whatever purpose originated, and whether the guilt of the party comes in question directly or collaterally." — (Best's Presumptive Evidence, p. 56.) It seems, then, as we understand the law, that the contestant might be justly and properly held to prove the truth of his charges against the election officers, not merely by the weight of evidence, as in civil cases, but beyond a reason- able doubt. The only testimony, as we have seen, that tends to establish their guilt is the recount of the ballots. Taking into view the difficulty of identify- ing the boxes* the manner in which they were kept, the time that had elapsed before they were opened, had those officers been on trial under an indictment for the offence, with no other testimony against them, it is a matter of grave doubt if this evidence, standing unsupported as it does, would have been sufficient to have put them upon their defence. The testimony is circumstantial, and „oi>ly one circumstance, unsupported in any way. It may be well questioned whether this circumstance, standing as it does alone, can justly be regarded as affording evidence of higher nature than what is technically known as " a slight presumption of guilt," which, it is said, " may excite suspicion, but is not proof; nor does it change the burden of proof." In order to a successful prosecution of those persons in the case supposed, the testimony against them should not only be such as to countervail the presumption of innocence, which the law itself makes evidence for the accused in all prosecutions for crime, but also the still stronger presumption with which it fortifies and guards the official doings of its own officers. It is not enough, in such cases, that the testimony tends even strongly to establish the guilt of the accused, but that guilt must be shown to be inconsistent with any reasonable supposition of innocence. In this connexion we invite attention- to some matters and incidents that are disclosed in this case, negatively as well as affirmatively, and to some other in- ferences' deducible from the facts proved. There is no testimony tending to show that any prejudice* interest, or other motive existed on the part of these election officers that should induce them to injure either of the parties to this contest. The result of the election at each poll was publicly announced on the night of the election. Nothing appears in the case to show that this result, as then announced, was not at the time acquiesced in by the candidates, voters, and all interested ; nor is there any intimation of any contemporaneous rumor or sus- picion of fraud. The contestant's theory of his right to a seat from the recount of the ballots is predicated on the "ypothesis that the judges of election returned to the ballot-box the same number of votes in the aggregate, and the same number for each candidate cast by the voters, and that these identical votes, no more nor less, were found in the ballot-boxes on the recount. Yet it will be found, on comparison, that the aggregate number of votes taken from these three boxes, severally, on the. recount was less than the aggregate number in the official return or tally-list. How has this disparity been occasioned % Has it the hue of fraud in the judges or of tampering with the boxes V CONTESTED ELECTION CASES IN CONGRESS. 361 Again : it will be apparent that the contestant can be entitled to the votes found in his favor upon the recount only upon the hypothesis that the judges returned to the boxes the same votes taken out of them. This hypothesis in- volves the additional assumption that these fifteen election officers, while in the act of perpetrating their crime, knowingly sealed, up and preserved for the use of the prosecuting officers the best and only evidence that could convict them. What police justice ever found so strange and grotesque a combination of knavery, folly, and stupidity united in the same culprits ? There is nothing to indicate that the contestant himself supposed that he had reason to suspect these election officers till after the governor refused to issue a proclamation in his favor so as to enable him to avail himself of the fraud of Byerly, nor that he had reason to believe that proof of fraud would be revealed by unsealing the ballot-boxes till more than eight weeks after the votes had been returned to them. Nor does it appear at what time or in what way the revelation was made to him that this eighteen upon which this tower of Siloam fell were any more worthy of condemnation than the residue of the ballot-boxes, in the city of Philadelphia. # # * * * # This case, as it now stands before the committee and the House, in some of its important features, is of a new type, and, as the undersigned believe, without precedent in contested elections in Congress or elsewhere The ballot-boxes opened in behalf of the contestant, as we have seen, were provided, used, and kept under the statute law of Pennsylvania, and to be so kept, in the language of the law, " to answer the call of any person or tribunal authorized to try the validity of the election." In that State, to obtain an order of that sort it is necessary to make application to the court for it, and the application must be supported by such sworn testimony as will satisfy the court that the granting of the order would promote the ends of justice. In that State we find several reported decisions referred to in which an order for this purpose was applied for and denied, but none in which it has been granted. In the present case these boxes were opened, against the protest of the sitting member, by the order of the magistrate who took the testimony, and upon the demand of the con testant, without an order of any court or of this house or its committee, and without any proof, by oath or otherwise, that these boxes contained testimony pertinent to the issues in the case. In our judgment the magistrate was not a person nor a tribunal, authorized to try the merits of this election, and had no authority under the law of Pennsylvania or of Congress to order those boxes to be broken open. In the opinion of the undersigned, the objection of the sitting member to the opening of these boxes was well taken; and if that objection had not been waived at the hearing, the testimony as to the recount should have been over- ruled. If a practice of this sort should be sanctioned, as it will be if this case should he made a precedent, the Committee of Elections of this house, in the future, will have no occasion to be idle for the want of a docket. What candidate for Congress in the future, whether counted out by the judges of election by a majority of one hundred and thirty-two or more or less than that number, would be so destitute of public enterprise as not to claim a second trial before "a mayor or recorder of any city or town in the United States," or a constabulary court of two justices of the peace, with a profert and rummage of the ballot-boxes, especially when it could be done without putting his purse in jeopardy by giving bail for cost, or filing his conscience by the cheap and easy ex parte oath of a litigant in court ? And to what extent may we not ex- pect to see efforts and enterprises of this sort quickened into life and intensified in earnestness when we consider that the guerdon of success, on the one hand, is a seat in this house, and that the pain and disappointment of defeat, on the 362 CONTESTED ELECTION CASES IN CONGRESS. other, are soothed and mitigated, if not, in fact, wholly cured, by pro rata pay and congressional mileage 1 The views of the undersigned in respect to this appeal to the reopening of the ballot-boxes, and of the mischiefs, abuses, and evil consequences to which it must lead, unless restrained by stringent and well-understood rules and safe- guards, are so well expressed in the opinion of the court in the case of Kneass vs. Eeed, upon a motion for opening the boxes for a recount, that we take the liberty to quote briefly from that decision : The authority given us by law (say the court) is to inquire into the undue election and false returns of certain election officers. The returns of such election, made by the officers charged by law with conducting them, are to be received as true till the contrary is shown. Every fair presumption is to be made in their favor. These are fundamental principles, applicable to all sworn officers. Is it too much to require of a party who seeks to assail such returns a precise statement, authenticated by oath, of the grounds of fact upon which he impeaches the doings of hundreds of sworn officers 1 * * * * Ought not he who desires to search into a ballot-box to give other reasons therefor than his mere wish to do so, in the hope of finding something that may inure to his own advantage? Surely the answers to these propositions must present themselves to a calm and unbiased mind the moment they are stated. And must not the answers be, that the sworn returns are the official expression of the doings of each and every election poll, and that the contents of every ballot-box must be presurned to be truly expressed by the returns theieof ? * * # * * # * The long period which must necessarily elapse between the holding the election and the arrival of the time for contesting its results would afford a terrible opportunity to deal with the thousand of ballot-boxes scattered, over the State. * * * No more ingenious way could be devised to invite fraud than such looseness of procedure ; and once established, a flood of evil would inevitably rush in, which those having the most acute foresight could hardly estimate the amount of. All this to some extent could be avoided by simply requiring that he who desires to scrutinize the contents of the ballot-boxes should first say, on oath, what he expects to find in each of them incompatible with the returns predicated upon them. Whether in the face of the foregoing facts, considerations, and suggestions, apart from the direct testimony of the sworn witnesses, the contestant may be regarded as having established his claim to a seat in this house, either by the weight, of evidence or beyond a reasonable doubt, the exigencies of the case do not require the undersigned or the HouBe to determine. But when to the fore- going attending circumstances and incidents of the case, such as appear nega- tively as well as positively, there is added to the same scale the direct, explicit, and uncontradicted testimony of the election officers, the undersigned cannot doubt or hesitate in respect to the conclusion to which they should come. It has been the aim of the undersigned to investigate, collate, and present the facts and testimony in this case in such way as they might be readily under- stood and appreciated, and so as to serve the ends of right and justice between the parties most immediately interested ; and in the discharge of this duty they have come to the unhesitating conclusion that the testimony submitted by the parties to the Committee of Elections does not show that the contestant is entitled to a seat in this house ; but that it does show that the sitting member is entitled to retain the seat heretofore awarded to him. In accordance with the foregoing conclusions, the undersigned submit the following resolutions : Resolved, That John M. Butler is not entitled to a seat in this house. Resolved, That William E. Lehman is entitled to a seat in this house. SAM'L T. WORCESTER. J. W. MENZIES. G. H. BROWNE. The following are extracts from the debate in the House : Mr. Worcester. * * . * * * The contestant, it will be seen, claims a seat in this house by undertaking to show that the election officers in these ten election divisions have been guilty of a violation of law ; and in order to substantiate this right, and make out his " case in accordance with the ordinary rules of evidence, it is necessary for him to prove his charges, not merely by the weight of testimony as in civil cases, but establish them, as in criminal prosecutions, beyond a reasonable doubt. And to show that such is the law, I refer to page 56 of Best's Presumptive Evidence : CONTESTED ELECTION CASES IN CONGRESS. 363 " It is a presumptio juris, running through the whole law, that no person shall, in the absence of criminative proof, he supposed to nave committed any violation of the criminal law, whether malum in se or malum prohibitum. And this presumption is not limited to pro- ceedings instituted with the view of punishing the supposed offence, hut holds in all civil and other proceedings for whatever purpose originated, and whether the guilt of the party comes in question" directly or collaterally." But the sitting member does not claim, and the minority of the committee do not insist upon, the benefit of any technicalities of this sort. So far as the rights of the parties are concerned, the minority of the committee are disposed to have the matter submitted to the House on the weight of the testimony. The only evidence that has been introduced by the contestant is the recount of the votes in the ballot-boxes ; and it has been well said, that in order to give confidence to that recount, and to justify the majority of the committee in their report in favor of the contestant, in was necessary that, in the first place, these boxes should be identified. This appeared to be a matter of very considerable difficulty on the part of the contestant. These boxes had no marks upon them, no indications to show when they were used, or at what election precincts. They were all of the same size and color, and had, as appears from the testimony, evidence of" having been often used. When witnesses were called upon for the purpose of identifying them, and determining at what particular division they had been used, they were in many instances wholly unable to do so. Alderman McMul- len, one of the witnesses who was first called upon, was requested to produce a box which belonged to the seventh division of the fourth ward. He produced a box which he said he believed to have belonged to that division. On opening it, it was found to have been used at the presidential instead of the State election. And so he went on from box to box, guess- ing at the right one, till he opened four before he found the one he was in search of. This, gentlemen, is but a fair example of the persistent efforts made to discover these boxes. The principal evidence which is claimed as showing their identity is that which results from their contents. If the contents agreed with the official return as made by the election officers, their identity was regarded as established. If it came near it, it was regarded as good proof of identity, yet not absolutely conclusive. If the discrepancy was very considerable, it was a proof against identity, and the identity had to be established in some other way. It seems to me that the fact of the difference being small is very unsatisfactory evidence of identity, and that where the difference was large, the box being identified, it was either evidence of fraud on the part of the election officers or of some one else ;. and then the question to deter- mine would he whether it was the fraud of the election officers or some one else. Mr. Harrison. I desire to ask my colleague a question. I have not had an opportunity of examining the testimony in this case, and therefore I would inquire of him whether there was any evidence before the Committee of Elections tending to explain why three months elapsed from the time the ballot-boxes were placed in the possession of the aldermen before the recount took place ? Mr. Worcester. There is no explanation in the testimony upon that point. The testi- mony shows that the boxes remained in the same custody, or rather, I should say, in the possession or on the premises, of the men by whom they were taken immediately after the election. Mr. Dawes. Perhaps my colleague upon the committee has overlooked this fact, that the election was held on the second Tuesday in October, and that up to, I believe, the 9th day of November, the contestant was declared the sitting member, and of course had no occasion to move in the matter. On the 9th day of November, the governor, by his procla- mation, very properly, as I think, declared that the sitting member was entitled to the certificate. The law requires that the man who contests with him who holds the certificate shall file his allegation in a given time. He has thirty days to do it in. The respondent then has thirty days to file his answer, before testimony can be taken. That length of time did not elapse, however, because these parties did not avail themselves of all the time allowed ; but a whole month elapsed before any certificate was granted to anybody, before either of them knew which of them was to file the allegation. On the 6th of December, which was another month, the last of the specifications was filed by the contestant. To that the sitting member responded without any unreasonable delay. But two months elapsed, necessarily, before the pleadings were in such a shape as to call upon the sitting member for his final answer. He had some time — I do not remember exactly how much time — to file his answer, and then it was, in the early part of January, that they commenced the taking of testimony. Per- haps that is some explanation. Mr. Worcester. My recollection is, that the original specifications were filed on the 9th of November, and in those specifications there was no notice of any intention on the part of the contestant to resort to these ballot-boxes. Afterwards, on the 6th day of December, additional specifications were filed, and appended to those specifications was a notice given to the sitting member that the contestant would resort to the ballot-boxes for a recount, but there- is nothing in the testimony before the committee which goes to show that any steps or measures were taken to add security in any way to the ballot-boxes or their contents. Mr. Dawes. Perhaps my friend can state to the House what it was that the contestant could do to add to the security of ballot-boxes which were in the custody of the law and not within his reach. 364 CONTESTED ELECTION CASES IN CONGRESS. Mr. "Worcester. I suppose there are means of preserving and perpetuating testimony in the State of Pennsylvania. I believe there are in most of our States, and I hope the laws of Pennsylvania are not defective on that point. Mr. Dawes. There are no means in the State of Pennsylvania for preserving testimony in contested election cases before this house, except those prescribed by an act of Congress, and that act I have stated. Mr. Worcester. I cannot answer the gentleman on that point. As I have said, this is the first case of the kind that has occurred here. I know of no other like it in the history of contested elections. I believe it to be without precedent, and it is for the House now to de- termine, by its action in the case, what practice is to be inaugurated in respect to cases of this character. If a party who is defeated in a contest at the ballot-box for a seat upon this floor can, without any showing at all, without giving security in any manner, upon his own mere motion, go to the magistrates, or to the trustees of a township, or to the aldermen of a eity, and claim from them, by giving notice of contest, that the ballot-boxes shall be reopened and the ballots recounted, it is time that this house knew that such is the state of the law. As I said, the case is without precedent ; and I will say, further, that in the State of Penn- sylvania, under whose laws these ballot-boxes are provided and kept, though there are quite a number of precedents reported in their books where parties have attempted to resort to the ballot-boxes for a recount, in every reported case the motion has been denied by their courts. Such a motion, when made before their courts, has been made upon the oath of the party, that the ballot-boxes contain evidence that would be pertinent to the issue to be tried. And mot only that, sir, but it is necessary, under their laws* that that notice shall be given within a very short time after the election takes place, and relief can be granted in such cases only upon a showing under oath and upon the order of the court. In this case it was done by the act of the party himself; and if this case is to be drawn into a precedent, then I may well ask which of us is safe in our seats here ? There is not a member of this house in whose case the ballot-boxes may not be opened and a. recount demanded, under similar circum- stances. Mr. Riddle. Mr. Speaker, feeling constrained to differ from the conclusion at which the majority of the committee have arrived, without any purpose whatever to detain the House by any extended remarks, I beg leave to refer to one or two of the principal points in this case. By the action of the House at the extra session, as it is called, the sitting member acquires what lawyers call &.prima facie right to his seat. That is opposed by the contestant by what he says is proof that overcomes it, and settles the merits of the controversy. That proof con- sists entirely and exclusively in a recount of the ballots which he says were cast at that elec- tion. Now, everything depends completely and entirely on the fact on which this proof can alone be predicated — the identity of the ballots counted with those that were cast at that election. If there is a failure in the proof to .establish that identity, then the proof neces- sarily fails, and, so far as it is made to depend on them, it leaves the case entirely uncom- promised. Now, I do not propose to examine the question of legal custody. I do not propose to say a word about the proof of the identity of these ballots, except as to that which is drawn from a single and most peculiar source. On page 6 of the majority report you find just exactly the kind of proof of identity on which the committee predicated their report in favor of the contestant. It is this : "The testimony shows that there was much difficulty in determining to what particular divisions the boxes belonged before they were opened, as the boxes generally were without labels or external marks of identification ; but it is not essential that the boxes should be identified before being opened. After any box had been opened, there was little danger of mistake in determining to what election and to what division it belonged. * * * "If the names of the contestant and respondent, as candidates for Congress, were found, on the tickets, it would be certain that the ballots were cast at the election in question, as those gentlemen were never opposing candidates at any other time." Now, sir, this case is met with a proposition to give in evidence the contents of certain papers. What is the first question 1 You must not only establish the identity of the papers, but you must also establish their execution. How do you establish the identity of the papers 1 It is sought to be done here by showing the custody from which they were taken. How es- tablish that 1 The committee themselves say that these papers— the ballots that have been used — can be witnesses in the case to establish the identity. Mr. Dawes. The paper that the committee speak of as one of the papers sealed up in a particular box is theoath taken by three men as judges, to which paper their names are at- tached, and the certificate of the magistrate. Three men bearing those names were judges in a particular district. There are no such names of men as judges in any other district. The law requires that the boxes shall be sealed up, with the certificate of their qualification in it. Now, I wish to know from my friend what more is necessary, when you open a box containing that certificate and these names, to trace it right to that division ? That is the identity. Mr. RrDDLE. It so happens, Mr. Speaker, that the ballots are not laid in the box with the certificate, but are in a box by themselves. I know th at they are found within the same box. CONTESTED ELECTION CASES IN CONGRESS. 365 but they are just as effectually cut off from each other as if they were a thousand miles apart. Does the gentleman claim to identify these ballots by the other papers to which he refers ? These papers contradict his ballots. Mr. Dawes. I do not see the gentleman's point, or he does not see mine. I understood him to say, which induced me to rise, that the papers that were found were no evidence, for the reason that we did not prove their execution. There is no such thing as proving the exe- cution of a ballot. The papers found in one of the two boxes have the names, in their own handwriting, of the men who acted as judges in a particular precinct ; and when you open the box and find in it the paper with these names, I do not doubt that the box belongs to the division where these men were judges. Mr. Riddle. I was unquestionably very unfortunate in the expression that I used. I did not say a word about this certificate or any of the accompanying papers. With them I have nothing to do. I was speaking of the ballots alone that are shown by the proof to have been contained in a box exclusively by themselves. Mr. Dawes. Now will my friend tell us what he means by proving the execution of ballots 1 Mr. Riddle. Certainly I will. I was remarking on the general proposition that a paper offered for proof is, first, not only to be identified, but proof of the execution is to be given. In the instance of a ballot, the same proof that identifies it does prove its execution. So that it comes back here to a question of identity. Before it can be used at all for the purpose of evidence its identity must be established. You established it, tho gentleman says, by estab- lishing the identity of the place where it is found. How do you establish that identity 1 By the contents of the paper itself? Why, by the rules of evidence, the paper can utter no story for any purpose. Before you can read the paper at all you must settle the 'question of identity. And yet the committee read the paper, and the paper alone, to establish that iden- tity. Am I understood here ? If so, sir, there is not one shadow of proof that amounts to that grade of certainty which the judicial or legal mind tolerates as proper, on which to predi- cate any conclusion, however slight in its gravity, to sustain the identity of these ballot-boxes. But here they refer to these ballots to establish their own identity before the identity of the boxes is established. Then, sir, meeting this question at the very threshold, I say there is no proof on which any recount can be predicated, because they have failed to establish the identity of the ballots cast with the ballots found. It could not be done, because the proof on which gentlemen rely they are estopped from using. • Mr. Campbell. * * *. Now, this act of the legislature ordering a recount in cases of a contested election means something, or it means nothing. If it is a dead letter upon the statute-book, then it amounts to nothing. But it is a vital statute, and was intended to meet a case like this, where from alleged fraud or mistake it cannot be determined who received the highest number of votes without resorting to a recount. In just such a case as this our courts of law would order a recount of the ballots, and then take such action as they saw proper, or submit the whole case fairly to a jury, as in this case the evidence is submitted to the House of Representatives. Now, sir, we come to the point — and it is the only point in the case — were the boxes opened after they were sealed up by the election officers and before, they were reopened by the com- . missioner who took the testimony ? To hold that they have been opened after they were sealed up, in the face of certain facts I will demonstrate, is perfectly preposterous. In the first place, to have reopened those eleven boxes, and deposited fraudulent ballots in them, would have involved the fraud of some five aldermen, with whom different boxes had been deposited, and the fraud of the parties who were aiding and abetting in depositing the addi- tional votes. More than that, it involves the fact that you could not detect where any one of those eleven boxes had been opened, from any change of tape, or any change of or injury to the seals. But it goes still further than that, and becomes perfectly ridiculous. Tell me, would men contemplating a -fraud upon the elective franchise to the extent of 130 votes deposit in one box only one vote out of the 130, as occurred in one case out of the eleven ; or, as in another case, would they get five aldermen, and other parties to the fraud, to break the seals and tape, to put in a ballot-box three additional ballots out of 130? I hold it is a monstrous supposition. Parties to a fraud like that would have deposited a certain number of ballots, enough to change the result in one, two, or three of those boxes.' They would have taken into their confidence one or two aldermen, not eleven, nor five, besides sundry other parties, to join with them in putting into one box a siDgle vote, in another three, in another five, and in another seven. Sir, I reject this hypothesis. I look to the more rational explanation ; and that is, that these election officers, on the night of the election, in their haste, and in the manner in which they counted the votes, committed these errors by mistake, and not by fraud.' I do not sup- pose that all, or, it may be, that any of these election officers were guilty of fraud in counting votes for the contestant which belonged to the sitting member, and vice versa. I take it that they counted them in haste on the night of the election ; and.thatiin counting the votes by tens, in violation of law, and not singly, they committed the mistake of one in one instance, two in another, seven in another, and so on to the highest number referred to by the testimony. Why, they were not counting the votes as the law of Pennsylvania requires ; they were 366 CONTESTED ELECTION CASES IN CONGEESS. counting them in violation of law, for, instead pf taking up each ballot separately and call- ing out the name and directing the clerks to mark it down for the candidate for whom it was cast, they selected them by tens and counted them by tens. I hold that the whole case goes to show that there was a mistake. I am charitable enough to suppose that it was so, and this is the mildest form in which I can place it for the officers. I insist that the case comes before the House without any proof that the ballots had been tampered with. And it appears that it has not been attempted to prove a fraud so extensive as to embrace five aldermen in different divisions or wards, of different characters and dispositions, and of different political associations and views, and all for the paltry purpose of adding an additional vote or two to a ballot-box. The whole weight of evidence in this case is on the side of the contestant. Mr. Thomas, of Massachusetts. I wish to know of the gentleman from Pennsylvania what the law of Pennsylvania is in relation to the opening of these boxes 1 Mr. Campbell. The law in reference to opening ballot-boxes in cases of contested elec- tions is this — that the court will, upon the allegation of either party based upon fraud or mistake, supported by affidavit, in the exercise of a sound discretion, order the boxes to be brought into court and a recount to be had. That was done by the commissioners in this case. Now, Mr. Speaker, I understand that these boxes were opened under the order of the commissioner, taking testimony in the presence of both the parties. It is enough for me to get at the truth of the case ; I care but little about its technicalities. But it is asked what evidence there is to show that the original ballots and papers were deposited in these boxes by the election officers. I reply, that it is made the sworn duty of these officers to do that very thing ; and there is no evidence to show that they did not do it. The law presumes that an officer discharges his duty ; and in the absence of proof to show that he did not discharge it, the presumption of law is conclusive that he faithfully complied with the law. It was their sworn duty to make the deposit, and I suppose they did it, of course, in the absence of proof to the contrary. But the gentleman from Ohio [Mr. Piddle] said there is -no proof of the identity of the papers — the tally lists, thd list of voters, &c. — contained in these boxes. Mr. Speaker, they were opened in the presence of the parties themselves, and of the judges of election and the witnesses, before that commissioner; and I have looked in vain through the reports of the majority and of the minority to find that any such point was made before the committee, or that either party required proof of the identity of the signatures to the papers contained in these boxes before the commissioner. . The point raised by the legal acumen of the gentle- man was not made a point in the case, and does not seem to be relied upon by either of the parties ; and I hold that it was unnecessary to furnish proof of the identity of the hand- writing, unless the parties required it, or objection was made. The House adopted the resolutions reported by the minority, declaring Mr Lehman, the sitting member, entitled to a seat — Yeas 77, nays 67. Note. — Speeches in the House, for and against the majority report, will be found in vol. 46 Congressional Globe For the report : Mr. Loomis, page 365 ; Mr. Campbell, page 373. Against the report : Mr. Worcester, page 368 ; Mr. Menzies, page 374. THIETY-SEVENTH CONGEESS, SECOND SESSION. Clements, of Tennessee. Tennessee being in rebellion against the general government, an election was ordered to choose delegates to the rebel Congress, the day fixed being the one named in the constitution and laws of the State for the election of representatives to the Congress of the United States. The loyal voters of the fourth district cast their votes for Mr. Clements to represent them in the Congress of the United States. The election was held to be valid. The refusal of a governor to grant a certificate does" not prejudice the right of the claimant to a seat. IN THE HOUSE OF EEPEESENTATIVES, January 13, 1862. Mr. Dawes, from the Committee of Elections, made the following report : That they have had the matter of said memorial under consideration, and fiiid x the following facts : By the constitution and laws of Tennessee, the time fixed for the election of representatives to the present Congress was the first Thursday CONTESTED ELECTION CASES IN CONGRESS. 367 of August last. Previous to that date, viz : in May last, the legislature of Ten- nessee, in special session, sought, by the adoption of an ordinance or declaration of independence, to declare the State independent of the United States. The State, also, in the same month, by commissioners appointed for that purpose, formed a league, offensive and defensive, with the southern confederacy. This transaction, together with an ordinance for the adoption of the constitution of the provisional government of the Confederate States, was submitted to the people for their ratification on the 8th day of June last. In this ordinance it was also enacted that if said constitution should be adopted by the people, it ghould then be the duty of the governor forthwith to issue writs of election for delegates to represent the State of Tennessee in Said provisional government, of whom they were to have the same number, to be elected from the same districts, as they were entitled to representatives in this Congress. The governor of the State, on the 24th of June, by proclamation, declared that these proceedings had been ratified "by an overwhelming majority." He thereupon issued another proclamation, ordering an election of delegates to the provisional con- gress of the confederacy on the first Thursday in August, the day fixed in the constitution and laws of the State for the election of representatives to the Congress of the United States. The Union electors in four of the ten congressional districts, regarding these proceedings as without warrant in the constitution, and plainly in violation of its most positive injunctions, and therefore entirely void, heroically disregarding them all, cast their votes upon that day for representatives to the Congress of the United States, in conformity with the requirements of the constitution and laws of Tennessee. The number of voters who thus resisted rebellion, and discharged their duty as citizens in these several districts, cannot be exactly determined, for the law requires the sheriffs of the several counties to certify those votes to the governor, and him to make proclamation of the result. Such sheriffs as were disloyal refused to make the certificates required by law, and all that were made were suppressed by the governor, himself actively engaged in the attempt to overthrow the government. But there exists no doubt that a very large vote was cast in several of these districts for representatives to this Congress, in the face of the governor's proclamation and of a fierce and bitter spirit of denunciation and threatened violence. Too great praise cannot be awarded to the fearless voters who braved this tempest. But two gentlemen, however, have appeared here, claiming to have been chosen at that election — the honorable Horace Maynard, as the representative from the second district, for whom it is believed that nearly ten thousand votes were cast, and who now occupies a seat upon this floor by virtue of said election, and the memorialist, who claims to have been elected at the same time in the fourth district. He brings no certificate from the governor of Tennessee; but the refusal of the governor of Tennessee to grant a certificate of election to one entitled to it can- not prejudice his right to it. — (Eichards's case, Hall & Clark, 95.) It may ancl has put him to the trouble of substantiating the fact of his election by other evidence before he can take his seat. The memorialist has presented the proper certificate of the sheriff of one county (Macon county) that he received in that county four hundred and thirty-three votes. The sheriffs of the other counties in the district failed or refused to make returns of the votes cast for him in their respective counties, being themselves either open rebels or in sympathy with the rebellion. But the statutes of Tennessee themselves, as well as the prece- dents of Congress, have provided for this emergency by enacting that "if the judges fail to return the poll-books or list of votes, or copies of them certified as aforesaid, the same may be proved by other creditable testimony, and received as evidence in any case arising out of said election." — (Code of Tenn., sec. 870.) In accordance with this provision, the memorialist presented evidence before the committee to satisfy them that he had received, in addition to the four hundred 368 CONTESTED ELECTION CASES IN CONGRESS. and thirty-three returned by the sheriff of Macon county, votes in each of the; other counties comprising the district, except Warren, amounting in the aggre- gate to more than fifteen hundred votes; making in all about two thousand votes. The proof 6f this has been exceedingly difficult, because of the fact that the indignation of the secessionists against the memorialist for permitting him- self to be a candidate rose to such a pitch immediately after the election that he was obliged to flee from the State to escape assassination, and has not been able to return to it since. But he has furnished from the volunteers, now in the' service of their country in Kentucky, who were his constituents and voted for him in Tennessee before leaving their State for the war, and from other testi- mony, evidence which has satisfied the committee of the fact. The committee are also satisfied that on the day of election there was an armed rebel force present in the district preventing or restraining the voters from the exercise of the elective franchise, and that though a violent and bitter public sentiment • existed, calculated to overawe and intimidate, yet the rebel forces had not, up, to that time, so taken possession of the district as to prevent such voters as 1 chose so to do to deposit their votes for a representative in this Congress. The ordinary vote of the district is about six thousand ; and then there were at the same time two candidates running for the confederate congress, but no other' candidate except the memorialist for the Congress of the United States. In conclusion, the committee, upon the whole evidence, find that on the day of election no armed force prevented any considerable number of voters in any part of the district from going to the polls, and that on that day, in conformity with the forms of law, two thousand votes at least were cast for the memorialist!. as a representative to this Congress, and none, so far as the committee know, for any other person. They therefore report the following resolution, and recommend its adoption: Resolved, That Andrew J. Clements is entitled to a seat in this house as a representative, in the thirty-seventh Congress from the fourth district in Tennessee. • •' The House agreed to the resolution without debate. THIRTY-SEVENTH CONGRESS, SECOND SESSION. Charles H. Upton, of Virginia. The election laws of the State of Virginia not having been complied with — the incumbent not producing satisfactory evidence that any votes were legally cast for him, the committee held that the election was not valid. IN THE HOUSE OF REPRESENTATIVES, , January 30, 1S62. Mr. Worcester, from the Committee of Elections, made the following report: ; That they have had the claim of the said Upton to a seat in this, house as a representative from the district aforesaid under consideration; that they have examined the testimony taken in the case, and considered the legal propositions and arguments submitted to them in support of said claim. It will be seen that the resolution of the House referred to the Committee of Elections involves the determination of two questions : first, that of the eligi- bility of the incumbent; and, secondly, if eligible, whether the conditions and circumstances attending his election were such as to entitle him to retain his seat. The Constitution of the United States requires that a representative in Con- gress shall, "when elected, be an inhabitant of the State in which he is chosen. The only question made or doubt suggested in respect to the eligibility of the CONTESTED ELECTION CASES IN CONGRESS. 369 incumbent was, whether on the 23d day of May last, the day heretofore fixed by law for the congressional election in Virginia, he was an inhabitant of that State. It appears from the facts admitted in the case, and the testimony submitted sto the committee, that the incumbent for the last twenty -five years has been a freeholder in the State of Virginia, having himself for the most of that time been a resident and inhabitant of the 'county of Fairfax, where he and his family were domiciled. Tor some time prior to the month of November, 1860, the incumbent himself had lived at Zanesville, in the State of Ohio, where he owned an interest in and had been engaged in conducting a daily newspaper, and it was shown that he voted at that place at the annual State election in October, and again at the presidential election in November of the same year. Under the law of Ohio in force at that time, the legal right to vote at either of .those elections would necessarily imply a previous residence in that State of one year at least. But the evidence adduced upon this point satisfied the com- mittee that in the month of November, soon after the presidential election, he returned to his previous residence in the county of Fairfax, where his family had. remained and then was. From that time to the month of June last he continued to be a resident and inhabitant of the State of Virginia, and conse- quently not ineligible, on account of the objection in question, as a candidate for Congress from that State at the date above referred to. The seventh congressional district of Virginia comprises the counties of Alex- andria, Spotsylvania, Fairfax, Fauquier, Prince William, Rappahannock, Cul- peper, Stafford, Orange, and King George, situate in the northeastern part of the State. The examination into the regularity of the election of the incum- bent, with which the committee is charged, renders it proper, in their judgment, to advert briefly to the political condition of that portion of Virginia embracing the seventh congressional district on and for a short time prior to the 23d of May. In doing this to the extent deemed necessary to our purpose, we' shall take occasion to refer to but very few facts except such as are set forth or im- plied in the memorial of the incumbent. The ordinance of secession, as it was called, passed by the convention of Virginia, was adopted on the 17th of April, then and for some time previous in session at Richmond. This proceeding was entitled "An ordinance to repeal the ratification of the Constitution of the United States by the State of Vir- ginia, and to resume all the rights and powers granted under said authorities." On the same day with the passage of this ordinance the governor of Virginia issued his proclamation acknowledging the independence of the Confederate States, and requiring all the military forces of the State to hold themselves in readiness for immediate orders. These proceedings inaugurated the rebellion against the government of the United States now existing in the whole of the eastern part of the State, and set on foot a revolutionary government. Since then the people and the government de facto have been in - open and avowed hostility, and in armed resistance to the authority of the general government. On the 22d of April General Robert E. Lee, on the nomination of the gover- nor, was appointed by the convention commander of the military and naval forces of the State. On the 24th of the same month the convention, claiming to be invested with supreme authority in the State, passed the following ordi- nance : The election for members of Congress for this State to the House«of Representatives of the Congress of the United States, required by law to be held on the 4th Thursday of May next, is hereby suspended and prohibited until otherwise ordained by this convention. On the 25th of the same month the acting authorities in Virginia entered into a convention or compact with the rebel government of the Confederate States, whereby the whole military force and military operations of the State H. Mis. Doc. 57 24 370 CONTESTED ELECTION CASES IN CONGRESS. in its impending conflict with the United States were placed under the direction and control of the Confederate States. On the 4th of May the governor issued his proclamation, authorizing the commanding general to call out and muster, into service such additional numbers of volunteers as he might deem necessary to repel the threatened invasion of Virginia by the troops of the United States. On the 14th of May the State was formally admitted as a member of the south- ern confederacy. • Although all of these proceedings of the governor, the convention, and the other acting authorities of Virginia, were usurpations upon the rights of her people, both as citizens of the State and of the United States, and in their nature revolutionary, yet it appears that if not universally approved, they were generally acquiesced in by a very large majority of the people in the whole of the eastern part of the State. That such was the fact throughout the seventh congressional district is very , conclusively shown by the memorial of the incumbent. For the purpose of showing the state of public sentiment in this district in respect to these revolu- tionary proceedings of the authorities de facto, and his own position and action as a candidate for Congress, the incumbent has thought proper to cite in his memorial extracts from several newspapers of the day, all published within a few miles of his own residence ; not doubting that these extracts exhibit the common sentiment of the people of the district fairly, as it was manifested at the time, we have embodied some of them in this report : [From the Alexandria Gazette of May 17.] Mr. Charles H. Upton, of Fairfax county, has authorized an announcement that he is a candidate to represent the seventh congressional district in the next Congress of the United States, "upon the basis of the maintenance of the Union," and asking the Union men to furnish him with the evidence of their wishes. As the convention of Virginia has, by ordir nance, declared that no election for members of Congress shall be held in this State at the ensuing election — as that ordinance is the law of the State — as an attempt to resist or con- travene the ordinance would be highly illegal and improper, we trust that no one will coun- tenance this proceeding by taking a vote or holding a poll ; and we have no doubt that those who are not in favor of secession will themselves condemn most pointedly that which -can only promise mischief, and bring trouble upon parties persisting in being concerned in it. However, it is probable that all will, upon reflection, see the good sense of dropping the whole matter at once. [From the Fairfax County News of May 17.] Election of Congressmen. — The convention of Virginia, representing the sovereignty of the people of the Commonwealth, and therefore speaking with supreme authority, passed the following on the 24th ultimo : "The election for members of Congress ror this State to the House of Representatives of the Congress of the United States, required by law to be held on the fourth Thursday in May next, is nereby suspended and prohibited until otherwise ordained by this convention." The obedience of every citizen of the State is not only due to the above, as the sovereign act of the Commonwealth, but is enforced by the pains and penalties of the law against treason. [From the National Intelligencer of May 20.] Freedom of Opinion. — The Alexandria correspondent of the Richmond Examiner has the following paragraph in one of his late letters : "There is some talk here of an attempt to vote for a representative to the Congress of the United States from this district. While I am strongly opposed to lynch or mob law, I think a case might arise when it would be necessary to inflict some kind of a summary punishment, and an attempt of the kind alluded to would seem to be a case where the forms of law might be dispensed with." It appears, then, from the facts that we have cited from the history of the times, and from the foregoing evidence, that the authorities which had usurped and then had control of the civil government and military forces of the. State had, for the time being, set at defiance and annulled the lawful autho, ity of the United States, and deposed or driven off its officers, practically severed the ties and abrogated and repealed all laws that bound the State to the general gov- ernment of the United States. All this was done, for aught that is shown to CONTESTED ELECTION CASES IN CONGRESS. 371 the contrary, with the approval and concurrence of a very large majority of the- people, and without the effective opposition of any of them. The law of the State providing for the election of members of Congress on the 23d of May was regarded and treated by the governor, sheriffs, commissioners, and other officers- charged with the duty of seeing it carried into effect, with the exception at most of those of a single .election precinct, as suspended, and for the time being as- practically repealed. This course of the election officers appears to have been adopted and pursued without remonstrance or objection from any considerable number of the people of the 7th congressional district. The great body of the people in the district seem to have acted upon the belief that on the 23d of May there was no law in force in the State which would enable them, if so dis- posed, to elect a member of Congress, nor was there any evidence before the committee that any very considerable number, if they had had the power, would . have had the inclination to exercise it. Such being the state of the district, it is a question well worthy of grave consideration whether its political condition was such that any election for a member of Congress at that time should be held legally valid either under the law of Virginia, or of the United States, even were the evidence of such election clothed with all the ordinary forms of law. This state of public sentiment in the district and its political condition appear to have been fully understood and appreciated by the incumbent. He seems, notwithstanding, to have been very unwilling that the benefit of representation in 'Congress should be abandoned, without at least an effort on his part to save it. His personal solicitations to other gentlemen to become candidates, the repulses he met with from them, the mode in which his own name was brought before the people, the difficulties he encountered, his persistent efforts, and the unusual, not to say abnormal, manner of conducting the election he recom- mended, are, we have no reason to doubt, as truly as graphically stated in his memorial and address to the people of the district, from which we quote as follows : Immediately after the adjournment of the Richmond convention I went to Alexandria and called upon Hon. George W. Brent, who was a member of that body, (and elected by a very large majority as a Union candidate,) and requested him to announce himself as a candidate for Congress. He peremptorily refused. I then called upon Lewis McKenzie, esq., to take this position. He also declined. I then wrote a card announcing myself as » candidate, and again visited Alexandria with a view to its publication in the Gazette, a paper of large circulation in the seventh district, then published in that city. The editor of the Gazette promised to publish the announcement until the day of election, but failed to redeem his promise. Having waited for the fulfilment of the promise a reasonable time, I announced myself a candidate in two papers of this city — the Republican and Star — and also issued a. circular addressed to the people, of which the following is a copy : "ADDRESS. "Falls Church, Fairfax Couxty, May 15, 1861. "On Friday last I visited Alexandria,- and placed the subjoined announcement in the hands of the editor of the Gazette, who promised to publish the same if I would omit the portion contained in brackets. I consented to this -change, but the promise has not been kept: '"To the voters of the 7th congressional district : " 'I hereby offer myself as a candidate for election to represent you in the next (37th) Congress of the United States, upon the basis of the maintenance of the Union. [The recent convention at Richmond, called without authority, and usurping all authority, has under- taken to set aside the supreme law of the land in reference to elections to Congress. — Acts 1852-'53, ch. 3, $ 7, p. 4. ] As, therefore, in most of the precincts throughout the district no poll will be opened for members of Congress, I call upon Union men to open side polls, and preserve the evidence of the wishes of the people, a copy of which may be transmitted to me, at Falls Church, Fairfax county, or to Hon. John W. Forney, clerk of the House of Representatives, at Washington. '"CHARLES H. UPTON.'" 372 CONTESTED ELECTION CASES IN CONGRESS. It was claimed by the incumbent that, in pursuance of his recommendation, "side polls" were opened for those wishing to vote for him at five different voting precincts in the district, at which he received in the aggregate ninety- five votes. Certain documents were submitted to the committee, containing lists of the names of the'persons said to have so voted, as evidence of his claim to have the benefit of these votes. These documents were, merely the lists of names of certain persons subscribed to written statements reciting or referring to the fact that no regular polls had been opened for member of Congress; that they had been deprived of the opportunity to vote or been deterred by threats, and they therefore voted for the incumbent. It was very evident to the com- mittee that the votes claimed to have been so cast at these "side polls" were not cast in conformity with any law at that time or heretofore in force in Vir- ginia for the election of candidates to Congress ; they were not given at the place of voting in the precinct, nor received by any election officer, nor certified or authenticated by any magistrate, or commissioner, or conductor of an election, nor proved by the oath of any witness. The incumbent himself did not seem to insist with very much confidence upon his right to have the benefit of the votes above referred to, but appeared to rely, for the proof of the legality oi his election, mainly upon certain votes supposed to have been cast for him at an election precinct called Ball's Crossroads, in the county of Alexandria. The time for the election of members of the 37th Congress was fixed on the; 4th Thursday of May last, by an act of the legislature of Virginia passed in the year 1853. An election was held on the same day throughout the State for senators and delegates to the State legislature. The committee subjoin below a complete copy of the document submitted to them as the poll-hook kept at Ball's Crossroads, and which, as has been before stated, was mainly relied on by the incumbent as proof of his claim: Poll for delegates to the house of delegates, and other officers, Thursday, May 23, 1861. NAMES OF CANDIDATES AND OFFICES. State Senate. House of delegates. Members' of Congress. Names of voters. i s o H i a a w. QJ o s 3 O Hi 6 s> o a N c3 o 6 i a o a .2 *S a 'B o 1 a w a 60 o a a o p< w fl i" 1 • ' 1 1 1 John "W Veitch 1 1 1 1 T. B. J. Fryj ■Rfl Tjrtil p H S Wimder 1 1 1 1 l 1 1 ■■ CONTESTED ELECTION CASES IN CONGEESS. 373 Toll for delegates to the house of delegates. Sfc. — Continued. State Senate. House of delegates. Members of Congress. Names of voters. to s a o & t? a W 0) a M o a iO O Hi c3 % g N 53 U 6 a u ■i-s d o a w a m '3 a- 02 K 1 fcD Si O that Jeff. Davis or any of his cabinet has ever claimed in any period of this controversy. I ask this Congress to pause before they establish this doctrine of the committee. I ask them to reflect before they give effect to the ordinance of a rebel State, which undertakes to nullify the laws under which members of Congress hold their seats. I ask if loyal citizens have not rights, and whether they shall not have encouragement and support, in their resistance to treasonable measures, by this Congress ; and whether, in addition to the pains and penalties which are threatened by rev- olutionary governments in their own States, you will disfranchise every loyal inhabitant of the State of Virginia? Their own State pronounces them traitors, and you say that the same act shall have such force and effect with you as will disfranchise them. I say this is an important question, and if the principle is true, it should shut out all members elected under that law in May last in the State of Virginia. It is not too late. These men all stand upon the same foundation. You have admitted members from several districts in Vir- ginia, claiming no other and no better title to a seat than the gentleman now on trial before you. They have all taken th'eir oaths as members of this house; and now this committee have labored through several pages of their report, to establish the doctrine that the treason- able convention of Virginia abrogated jts laws, and therefore that thgse menhaveno shadow of a foundation for their claims as members of this Congress. In that view of the case, thisi is a most important question for the House to decide. And now, gentlemen, I am disposed to leave this matter to the judgment of the House. It is claimed, and the members of the committee in debate upon this floor have claimed, that we should register its edict, because the Committee of Elections were unanimous in recom- mending that this person shall not be admitted to his seat. This is dangerous ground. I say the members of this house should be independent in their judgment upon questions of this importance, without being influenced by the decision of any committee. Why, this doctrine that the committee are infallible and cannot err, would have kept the arch traitor Bright in Ms seat in the Senate, because the Judiciary Committee of the Senate unanimously agreed that he was entitled to retain his place. [A Voice. There was one dissenting voice. ] One dissenting voice, a gentleman says. I say that men should rely upon their own judgments, their own sense of right and propriety ; and they should say whether, in their own judgments* this district in Virginia, represented here now by a loyal and true man, as all his opponents admit, should be disfranchised, and be driven in disgrace from this house Because the com- mittee are unanimous in their decision upon it ; and whether his constituents shall be unrep- resented here because, by violence and fraud, by the action of a traitorous convention and a traitor governor, he has been deprived of the ordinary proofs of his election, to which, in peace- ful times, he would have been entitled. Upon these grounds I shall vote that the gentleman from the seventh congressional district of Virginia is entitled to retain his seat as a member of this house. In closing the debate Mr. Dawks spoke at length. The following extracts are from his speech : I said I desired to discuss this question stripped of technicalities, and to look at the naked facts. Now, sir, the naked facts are, I doubt not, that ten men, on the 23d of May, legal voters of the seventh congressional district of Virginia, did deposit their ballots in a ballot- box for this incumbent. I admit that ; I believe it to be true. But, Mr. Speaker, the gentle- men who have advocated his claim to his seat upon this ground have all sot out with the assertion that his claim rested entirely upon ten legal votes. I ask what is meant by ten legal votes ? Do gentlemen desire to stand upon that proposition, or do they desire, as every one has done, the moment after making the assertion to depart from it, and say the condition of things was such in the district that they could not comply with the law ? Which is the pro- position gentlemen desire to stand upon ? I propose, as a member of this house, to discuss both propositions. I believe eveiy gentle- man who has advocated the claim of the incumbent, with the exception of my friend from Ohio, [Mr. Harrison,] has started out with the proposition that he has ten legal votes, and then immediately departed from his adherence to that proposition, and undertaken to say that, in the condition of things in that district, a strict compliance with the law was impossible, and that it should not be required of the incumbent. Now, I understand ten legal votes to mean not only that the votes were cast on a legal day — because if that is not done anybody may be elected — but something more is necessary than that they should have been cast on the legal day to make them legal votes. It is not enough to say that they were legal voters ; for, if that is all that is necessary, they could express their opinions in any way or manner whatever, and the forms of law would be of no avail. Legal votes I understand to be votes cast by legal voters in conformity to law ; that is, in the form and manner required by law. That I understand to be legal voting. . But I am not going to stop with saying that if this man has not ten legal votes he ought not to retain his seat. I am starting out with the proposition assumed by all who have ad- vocated the claims of the incumbent, that he has ten legal votes, and asking the House to 380 CONTESTED ELECTION CASES IN CONGRESS look into the facts. I agree with all parties that it is our duty sometimes to look beyond the question whether a man's vote has been cast in conformity with law or not, but I want first to settle the question whether these ten votes were legal votes or not. Now, let my friends look into these papers, and they will see that ten men, on the legal day— if I may use the expression — deposited thejr votes for the incumbent in a ballot-box, I am ready to presume that they were legal voters, and therefore I state the proposition as I admit it, that ten legal voters, on the day by law required, deposited their votes for Mr. Upton in, a ballot-box. Mr. Upton. The gentleman from Massachusetts has several times repeated, and I did npj like to interrupt him, that those votes were deposited in a ballot-box. That is not the method. of voting in Virginia. They keep a poll-book, and record the names of the voters. Mr. Dawes. I stand corrected. I believe that is the law, although the first time the gentleman has informed me of the fact is at this moment. Ten men then, viva voce, cast their votes for this man, and so far it is in conformity to law. But yet it is not in conformity to law, for there was no poll opened to begin with, according to law. There was no sworn judge or inspector to receive these votes, and therefore it is precisely the same if the voters rose up in the presence of the Speaker of this house and gave their votes, or if they rose up in the presence of the gentleman from Virginia himself, or anybody else. There was no poll opened for member of Congress, according to the provisions of law ; 'no man sworn to receive votes for member of Congress, according to the provisions of law'; it was precisely this, and no more, that ten men, bejare an irresponsible person, not required by law, not authorized by law, gave their votes viva voce for this man. The law of Virginia is just as plain upon this point as any other ; it requires that it shall be done before sworn inspectors and judges — .sworn to receive votes for member of Congress, in a particular manner, with the oath set out in words;- in the statute. i : , , That was departed from. Then the law requires that these men who take these votes,, being sworn officers, shall certify to them— certify the number and the persons for whom the votes were given. If you will look to the 19th page of this document you will see that there is not a particle of evidence that the law was complied with in this respect. These men acting as judges and inspectors of this election took the oath to receive votes for other officers, but not for members of Congress. That is what they say. They did not vote themselves, and they took care, in view of the pains and penalties of treason that hung over them, not to put their necks into such a halter. They did not vote themselves, and -they did not certify that anybody else voted. There is no record to be found, ' ' under heaven or among men, / that a sin- gle man cast his 'vote there. Two of those men have been sworn upon the stand as witnesses, and they have sworn to about everything else that could come into the heads of the contestant or the incumbent, but they have not testified that even a single vote was cast for member of Congress there. Why is it, let me ask in all respect, that members of this house start out and say that ten legal votes were cast for this man, when the papers show conclusively that^ not one legal vote was cast for him — not a vote ? That, sir, is a fact that nobody controv%rts the moment he attempts to argue the case. With the exception of my friend from Ohio, [Mr. Harrison,] there has not been an argu- ment for the claims of the incumbent that has not, the moment it commenced, admitted that the law has not been complied with. Then should we depart from the law 1 Do we ever depart from the law and give seats to members upon this floor ? Certainly we do. Certainly it is our bounden duty on occasions to disregard the fact that forms of law have not been complied with by voters, so that — and this is the essence of it — the voice of the voters of the district maybe heard; so that the voice of the voters of the district shall have effect; so that if the electors of the district have striven to give effect to their voices they shall not be, thwarted in that purpose by mere shells of forms which do not contain the real substance. Is that the fact here? 1 That is the pertinent inquiry. Our first duty is to see whether this election conforms to law. Having seen that it does not conform to the law, and no one claims that it does conform to law, our next duty is to inquire into the circumstances of the case, and see whether we can find in those circumstances any arguments which will justify us in putting aside the requirements of the law ; and if we do, it is our duty to give effect to such an election. There is no difficulty in finding abstract principles which ought to govern these cases. It is their application in extreme cases that makes the task difficult. Now, sir, we find in looking into this case that there were but ten men who voted for the incumbent. Not being bound by law, and not having the form of law in their selection, we search for reasons to give effect to the voice of those voters. We look into the nature and circumstances of the election to see whether it is of such a character as will justify us in laying aside the forms of law. The House agreed to the resolution without a division. The vote upon a.n amendment deciding Mr. Upton entitled to the seat was — Yeas 50, nays 73. Note.— The debate in this case occurs in vol. 47 Congressional Globe. For the report: Mr. Worcester, p. 975 ; Mr. Sheffield, p. 982 ; Mr. Loomis, p. 1006 ; Mr. Dawes, p. 1007. Against the report: Mr. Riddle, p. 978; Mr. Fessenden, p. 980; Mr. Sedgwick, p. 983-, Mr. Delano, p. 1001 ; Mr. Harrison, p. 1004. CONTESTED ELECTION CASES IN CONGRESS. 381 THIRTY-SEVENTH CONGRESS, SECOND SESSION. Kline vs. Verree, of Pennsylvania. * Where the contestant failed to specify with particularity the grounds of the contest, held that the requirements of the statute were not complied with, but contestant was permitted to specify orally the grounds upon which he based his contest. Where it was alleged that there was a mistake. in the original count, and upon reopening the boxes the allegation was apparently substantiated, as the boxes had been for three months in an insecure position, where they might have been tampered with, it was held that the recount should not overturn the original sworn returns. IN THE HOUSE OF REPRESENTATIVES, February 27, 1S62. Mr. Dawes, from the Committee of Elections, made the following report: The third district of Pennsylvania is composed of the 11th, 12th, 16th, 17th, 18th, and part of the 19th wards of Philadelphia. The election here contested was held on the second Tuesday of October, 1860, which was the general election for State officers. The whole number of votes returned as cast at that election for representative in Congress was 18,204, of which there were returned for Mr. Verree 8,931 votes, for Mr. Kline 8,909 votes, and for Mr. G. J. Hamilton 359 votes, Mr. W. Morgan 5 votes, making Mr. Verree's returned majority over Mr. Kline 22 votes, r The several wards constituting this congressional district are subdivided into divisions or election precincts, at which the polls are opened and ballots received. The election at each of said divisions is conducted by one judge and two inspectors, who are chosen annually ; and for the protection of minorities the law of the State of Pennsylvania provides that at the election of such inspectors each voter shall vote for but one, and that the two persons receiving the highest number of votes shall be declared elected inspectors. It .sometimes happens, however, where one political party can give a majority larger than the entire vote of the other, a division of its vote can be so adjusted as to secure the election of both inspectors against the spirit and object of . the law. Each inspector appoints one clerk to assist at the election, and upon the amplication of twenty citizens this court of common pleas can appoint three watchers to be present at each precinct. It is made the duty of the judge in every election division on the night of the election to make out and subscribe a certificate of the votes there given, and on the next day to file the same with the prothonotary of the court of com- mon pleas, and to return a duplicate of the same to a meeting of all the judges and inspectors from the several divisions of the ward, who are required to ascertain the vote of the ward, and return the same by one of their number, less and unsatisfactory discussions. The committee were, however, induced, from a desire that no injustice might by any possibility be done the contestant, to permit him to orally " specify" and "particularize" the grounds upon which, under the last clause of the 10'th specification, this contest is based. And they are, that in the 3d division of the 11th ward the division inspectors made a mistake in counting the votes for each of the candidates, to wit, that they counted for the sitting member ten more votes than he was entitled to, and the contestant seven less; and that by; a like mistake in the 3d division of the 16th ward they counted for the sitting member sixteen more votes than he was entitled to, and for the contestant four- . teen less. In the 4th division of the same ward, by a like mistake, they counted for the sitting member twenty-two less than he was entitled to, and for the contestant four more than he was entitled to. In the 1st division of the 18th ward, by a like mistake, they counted for the sitting member one less, and the contestant one more than each was entitled to. In the 3d division of the same ward, by a like mistake, one more vote was counted for the sitting member than he was entitled to. In the 4th and 6 th divisions of the same ward, a like mistake was made of one vote in favor of contestant in each. In the 7th division of the same ward, by a like mistake, two votes less for sitting member and two more for contestant were counted than each were entitled to. In the 1st division of the 19th ward, by a like mistake, seven votes were counted for sitting member more than he was entitled to. In the 2d division of the same ward, by a like mistake, two votes for sitting member and one for contestant were counted more than each was entitled to. In the 4th division of the same ward, by the same mistake, three votes for sitting member and four for contest- ant were counted more than each was entitled to. And in the 11th division of the same ward, by a similar mistake, two for sitting member and one for con- testant were counted more than was the true vote for each. The whole claim of contestant may be stated in tabular form, as follows : ' Third Division : Official Eleventh Ward. Verree. 151 141 Kline. Hamilton. 141 2 148 4 Kline's gain, 17 votes CONTESTED ELECTION CASKS IN CONGRESS. 385 Sixteenth Ward. Verree. Kline. Hamilton Third Division : Official / 182 166 ( Recount 166 180 ( Kline's gain, 30 votes. Fourth Division : Official 201 158 Recount 223 162 Verree's gain, 18 votes. Eighteenth Ward. First Division : Official 236 121 Eecount 237 120 Verree's gain, 2 votes. Third Division : Official 214 150 Recount 213 150 Kline's gain, 1 vote. Fourth Division : Official 231 136 Recount 231 135 Verree's gain, 1 vote. Sixth Division : Official 286 134 Recount 286 133 Verree's gain, 1 vote. Seventh Division : Official 271 187 Recount 273 185 Verree's gain, 4 votes. Nineteenth Ward. First Division : Official 321 222 Recount 314 222 Kline's gain, 7 votes. Second Division : Official 201 201 Recount 199 200 Kline's gain, 1 Vote. Fourth Division : Official 311, 251 Recount 308 247 Verree's gain, 1 vote. Eleventh Division : Official 210 166 Recount 208 165 Kline's gain, 1 vote. H. MiBi Doc. 57 25 27 27 10 10 8 11 15 15 386 CONTESTED ELECTION CASES IN CONGRESS. . Recapitulation. Verree's gains. Kline's gains. Eleventh ward . . 17 Sixteenth ward . . 12 Nineteenth ward . . 8 — 37 Eighteenth ward 7 Verree's returned majority was 22, making . . 29 Kline's actual majority as claimed 8 In support and denial of this allegation, as thus reduced to form, proof was adduced on the one side and the other before the committee, and able arguments of counsel submitted for their consideration. The evidence maybe found in Mis. Doc. of last session, No. — , and of this session, No. 27. The law of Pennsylvania contained at the time of this election a peculiar provision for the preservation of the ballot-boxes after any election, and the use to be made of them afterwards. It may be found in Purdon's Digest, section 55, page 287, and is as follows ; "As soon* as the election shall be finished, the tickets, list of taxables, one of the lists of voters, the tally papers, and one of the certificates of the oath or aflirmation taken and subscribed by the inspectors, judges, and clerks, shall all be carefully collected and deposited in one or more of the ballot-boxes, and such box or boxes, being closely bound round with tape, shall be sealed by the inspectors and the judge of the election, and, together with the remaining ballot- boxes, shall, within one day thereafter, be delivered, by one of the inspectors, to the nearest justice of the peace, who shall keep such boxes containing the tickets and other documents to answer the call of any person or tribunal authorized to try the merits of such elections." This allegation embraces the recount of twelve ballot-boxes, yet no change of result could be obtained without that produced by the recount of the ballot- boxes in the three following divisions, viz : the third division of the eleventh ward, the third division of the sixteenth ward, and the first division of the nineteenth ward. In these three divisions it is claimed that there were mistakes in the original count against the contestant amounting in the aggregate to fifty- four votes. The attention of the committee was accordingly directed by both parties especially to these divisions. The claim of the contestant that the vote returned for members of Congress from these three divisions should be corrected to conform to the number of votes found in the ballot-boxes recounted, as of those divisions involves the settling of two other preliminary questions. Were the ballot-boxes produced the ones actually used at these precincts at the elec- tion contested? And did they contain untouched the ballots so cast? Indeed, it must be apparent to every one that unless the committee could be satisfied of both identity and security they could not control and correct the sworn return by any subsequent count. Upon the question of identity the committee have had little or no difficulty. It was testified in, respect to each of the boxes under consideration by the • alderman of the ward, who resided nearest the precinct, that he received the box from the election officers of that precinct on the night of the election as and for the ballot-box used at that precinct, and each was so labelled when received. There was other evidence tending to strengthen this. And the committee were left without doubt that the boxes produced were those actually used at these precincts. CONTESTED ELECTION CASES IN CONGRESS. 387 Upon the question of security, whether these ballot-boxes, when opened and recounted before the magistrates, were in the same condition as when sealed up by the election officers and delivered to the alderman on the night of the elec- tion, there was much conflicting testimony and much doubt. THIRD DIVISION ELEVENTH WARD. The box of this division was received by Alderman Williams on the night of the election, and placed by him in the vestibule of his office, over the door, upon a shelf with the other boxes, so high up as to require the use of a chair to reach it. There he thinks it remained undisturbed till the 8th of J anuary — the day it was taken to the magistrate's office to be opened, a period of three months. He took it himself, with other boxes, on that day to the office of the magistrate for that purpose, having the assistance of one Samuel L. McKinney, the constable of the ward, in carrying and bringing back the boxes. The box was not opened on that day as was expected, and was taken again to the office in like manner and for a like purpose on the next day. Yet, although Alder-, man Williams believed the box when opened to be in the same condition as when it ,was received by him — the office where it was deposited was a place of frequent resort, especially by the constable McKinney, and by another alder- man; and McKinney testifies that, on the day before the box was taken the first time from the office to the m igistrate to be opened, in the absence of Alderman Williams, a person, a stranger to him, came to the office, representing to him that he had come after this box to take to the magistrate ; that, believ- ing his story, he helped him get it from the vestibule and take it away ; that it was carried away in a basket, covered up with a cloth and kept from 10 till 3 o'clock in the afternoon, when it was returned by the same man who took it, and that Alderman Williams did not return to his office till 7 o'clock in the evening, and then not entirely sober. The character of McKinney was attacked, and it appeared that he had been convicted of " extortion," or obtaining money by fraud, and had been pardoned by the governor and since elected constable of the ward. Alderman Williams testified that he would not believe him under oath. If his character is as bad as claimed by the contestant, the committee believe him to be a very unsafe person to keep the company of ballot-boxes for three months, or be intrusted with them, as he was by Alderman Williams, to carry to the magistrate's office, and would be a very suitable person to do or connive at the very thing he testifies was done. The committee could, however, place no confidence in the integrity of a ballot- box which had been' in such company and keeping for three months, and when opened was found not to agree with the sworn returns received at the time of the election. By this recount the contestant gained seventeen votes. As the entire recount gives him but eight majority, it is obvious that, without this cor- rection, the result cannot be changed. The committee think it would be most unsafe to contest the returns by such testimony. THIRD DIVISION, SIXTEENTH WARD. This box was received on the night of the election by Alderman Mecke, of the sixteenth ward, and by him kept under the desk in his office till the 6th of December following, when it was removed by him with the boxes to his new house, and placed with them in a boarded cellar till the examination before the magistrate of the 25th January following. This alderman was one of the magistrates who touk the testimony for the contestant, and when his own depo- sition was taken, another magistrate' was substituted in his place. The box was brought by him to the magistrate's office two days before it was opened, and left there by Alderman Mecke in an unfastened closet in charge of no one_ 388 CONTESTED ELECTION CASES IN CONGRESS. There it remained from Thursday until Saturday, when it was opened. Alder- man Mecke, previously to the opening of the box, became very much alarmed and impressed with the idea that it had been tampered with, though he could assign no very definite reason for his suspicions. His testimony on this point was, " I believe the condition of the box has been changed ; it has been tam- pered with." He at first believed that the wax with which it was sealed was too fresh in appearance, and went into the cellar to examine the wax upon the other boxes to satisfy himself upon this point. While there Alderman Remick, in whose ofiice the box had been left by him from Thursday till Saturday, came into the cellar, and Alderman Mecke spoke to him of his uneasiness, as follows : I believe I told him that I was unnerved. I had not slept for two nights, and I was fairly trembling then, which was shown by the fluid lamp which I held in my hand. Question. Did Alderman Remick make any reply in the presence of Mr. Verree 1 If so, state what it was. Give, as nearly as you can, his own words. [Question objected to.] Answer. I believe he laughed at me, and said I was a damned fool ; that is as near as I can recollect. The opening and recount of this ballot-box is described in detail on pages 90 and 91 of Mis Doc. 6 of the last session. The full tickets were foundin bundles of ten twisted together, and the scratched or broken tickets were found by them- selves in bundles. Exact copies of the tally-lists used at this division were be- fore the committee, and the full bundles of tens were found to coincide with the XX's, indicating tens on the tally-lists, and the scratched tickets found in bundles by themselves corresponded with the tallies for odd tickets on the tally-list, and altogether agreed with the original return. But on opening the twisted bundles which had been counted as full tens for the sitting member, there were found in those bundles " stickers" for contestant upon the tickets over the name of the sitting member, sometimes one, sometimes two, and sometimes three in a bundle. And the claim of the contestant was that by mistake these ballots with " stickers" had been counted as full ballots, the " stickers" being overlooked. This ballot- box was produced before the committee, the bundles of ballots having, at the re- quest of the sitting member, been by the magistrates restored to it and the box sealed up again, and forwarded to the Clerk of the House. On breaking the seal and opening the bundles of tens, the committee found the " stickers" to be of yellow paper upon a white ballot, making a most striking contrast, visible as far* as the ballot could be seen. No one but a blind man could make the mistake of overlooking these "stickers," for none other could fail to see them. There were other peculiarities noticed by the committee upon taking out from the bundles the ballots found in them with " stickers" upon them. In very many in- stances the " sticker" was a smooth piece of paper pasted over afold in the ballot, with no corresponding fold in the '' sticker," showing that the " sticker" had been placed upon the ballot at some time after it had been folded. So in some in- stances the twist in the ballot caused by twisting it in the bundle was not dis- coverable on the " sticker" which had been pasted on its face. With all the proof before them touching this ballot-box, that it had been out of the custody of the law, in an unfastened closet, for two days, just before it was opened, when temptation was the strongest to tamper with it, the strange conduct of the alderman who had it in custody, his own conviction and assertion that it had been tampered with, the cool, comforting assurance of the other alderman in whose ofiice it had been so carelessly left, and the condition of the ballots themselves when opened, the committee could not give to a recount thus made the effect of controlling the tally-list and sworn return made at the time, especially so when it is claimed, as in this instance, that a mistake of thirty votes was made in counting three hundred aud fifty-four, by innocently over- looking yellow pasters on white ballots. CONTESTED ELECTION CASES IN CONGRESS. 3^9 FIRST DIVISION, NINETEENTH WARD. The ballot-box in this division was received from the inspectors on the night of the election by Alderman Stuart Field, and by him kept till produced before the magistrates opened, on the 21st day of January following. When the box was produced it was not found to be closed tightly, but it was so imper- fectly tied with the tape that, at that time, the lid could be opened the space of three-eighths of an inch — wide enough to introduce single ballots; but whether bundles of tens could be introduced, the alderman himself had some doubt. Loose ballots were plainly visible through the aperture, which was large enough not only to insert but to abstract ballots. When the box was opened, a quantity of single tickets was found loose in the box, next to the opening, some for sit- ting member, some for contestant, and others for other individuals. The judge of the election testified that the scratched tickets were put back into the box loosely, after the bundles of tens had been placed in the box ; but one of the in- spectors testified that the scratched tickets were twisted tngether and laid on top, adding, " I helped do it myself." It is apparent that this box had never been sealed according to law, or had been subsequently tampered with, and in either event no recount of it in the con- dition found before the magistrate could be taken as against the return made on the night of the election. But as the contestant gained but seven votes by a recount of this box, without the aid of the recounts of the third division of the eleventh ward, and the third division of the sixteenth ward, by which forty- seven votes were gained to contestant, and which have been already rejected, the recount of, this division, if allowed, would be of no avail to him, and becoires, therefore, comparatively unimportant. The committee are therefore unanimously of opinion, that, according to the contestant, all the corrections claimed by him in the other divisions, he is never- theless not entitled to the fifty-four votes claimed by him to have been by mis- take omitted from his count in the third division of the eleventh, the third di- vision of the sixteenth, and the first division of , the nineteenth wards, and is con- sequently not elected. They therefore recommend the adoption of the following resolutions : Resolved, That John Kline is not entitled to a seat in this house as a representative in the 37th Congress from the third congressional district in Pennsylvania. Resolved, That John P. Verree is entitled to the seat now occupied hy him as a representa- tive in the 37th Congress from the third congressional district in Pennsylvania. The debate in the House was brief, and had reference principally to disputed facts rather than legal principles. The subjoined extracts are taken from it : Mr. Dawes. * * * * I suppose the House will recollect, from the discussion which was had in the case of the contestant, Butler, from the first congressional district of Penn- sylvania, precisely what the law is in reference to the preparation and counting of these ballots, the returns to be made, and the preservation of the ballot-boxes. There are judges and other officers appointed to attend upon elections, to count the ballots in the manner pre- scribed by the statute, and to make a sworn return upon the night of the election, aud that is to be taken on the Friday following' to a board of officers composed of the return judges, and they are to certify the result of the polls of the district to the governor, and the governor is to issue his proclamation. All this was done in this case. But it is claimed that, as to twelve of these districts, there was carelessness or mistake in the count on the night of the election, and that the returns so made were false in fact. There is no allegation and no claim that they were intentionally false on the part of the return judges. It is the duty of these judges, after having so counted the votes, to put them all back in the same ballot-boxes, tying up the ballot-boxes in a particular manner with tape, to put a seal upon it, aud carry it to the magistrate Tesiding nearest to the precinct, and it is his duty to keep the ballot-box. There is no provision of law as to how long he shall keep it, or in what particular manner ; but it is to be kept for the purpose of being subject to be opened by any tribunal authorized to examine into the election. These ballot-boxes were all so returned. There -Was in this case no difficulty in the mind of the committee as to identifying the ballot-boxes of these twelve divisions. On that point 390 CONTESTED ELECTION CASES IN CONGRESS each of the aldermen who received the ballot-boxes testifies to the fact that the particular ballot-box was the one that it claimed to be. In all of these cases about which there was contest in this election, the boxes were labelled when received. The election was held on-the second Tuesday of October, 1860. This contest was com- menced immediately on the governor's giving his certificate of election to the sitting member. The notice of contest was then served by the contestant, and an answer was made in due season by the sitting member. Testimony was taken on the part of both contestant anoj , sitting member, but the ballot-boxes were not approached until the 8th of January following. From the 8th to the 26th all these ballot-boxes were opened in the presence of the magis- trates taking the testimony. They were therefore in the custody of the magistrates from the second Tuesday in October until about the second Tuesday in January — a period of three months. They were therefoie in the custody of the law, although the law itself provided very inadequately for their security, and has since seen its defect and remedied it by addi- tional legislation. In a tormer case of contested election in this house, a majority of the committee were of opinion that the ballot-boxes, being in the custody of the law, being kept as prescribed in the law, although insecure, were to be presumed, in the absence of testimony that they were tampered with, as having been kept safely, and were of opinion that these boxes should be recounted. It was in the absence of any direct testimony that the majority of the committee came to that conclusion. However, the House differed with that majority, and established what the committee might have treated as a precedent ; that is, that if the boxes were kept in an insecure place, although it was the place prescribed by law, it was not safe, even if there was no testimony as to their being tampered with, to allow a recount of them to con- trol the sworn return made on the night of the election. The committee might well consider itself bound by that precedent. It was a conclusion which had great force upon its judgment. But the case is not that. This case has all the elements of that case, and something more. The ballot-boxes were in that case, as in this, in the custody of the law for a period of three or more months. They were in just such a custody ; in a custody which the committee felt, in this case as in the other, to have been insecure ; in a place where they were exposed, and where there might have been tampering with them. I do not say that the committee would have reversed its decision if that were all. But, touching three of these boxes, there was positive testimony which shook all faith that the committee might otherwise have had in the integrity of the boxes, and especially when arrayed against sworn returns. The committee did not feel at liberty to control the returns by these boxes. Conceding to the contestant all of the recount which he has obtained, he is elected by only a majority of eight. In three of these boxes he has claimed to have gained fifty-four votes. It would be necessary for him to avail himself of these three boxes entirely in order to change the result. Accordingly both the sitting member and contestant directed the attention of the committee especially to these three boxes ; the contestant to what he claimed to be evidence of the security of these boxes, and the sitting member to what he claims to be proof that the boxes had been tampered with. I propose simply to call the attention of the House to these three boxes, and then, on the conclusions which the House shall feel bound to come to touching them, will be decided the whole case. Mr. Johnson. In the case of Butler vs. Lehman, decided' at the present session, the gains shown were large gains — some two hundred votes ; and I am free to say that where there have been opportunities to perpetrate frauds upon the ballot-boxes, and, upon a re-ex- amination and recount, the gains are large and altogether upon one side, and that upon the side of the parties who have had the custody of the boxes, it is a suspicious circumstance, to say the least of it ; but that is not this case. Here the gains and losses are trifling and alternate. The large gains are made by a single transposition of the figures, as I have stated. Now, sir, the committee seek to overthrow these ballots by showing that their custody has not been such as to entitle them to that respect which the legislature of Pennsylvania in- tended to be given to them when they provided that they should be deposited with the alder- men and justices of the peace, and kept sealed up' by them in their offices for further pur- poses of investigation and counting. They say they have no .doubt that the boxes opened and counted were the identical boxes deposited with the aldermen, but they have doubts whether the custody of the boxes was such as completely to preclude the possibility of their being tampered with ; and, strange to say, they have thrown doubt upon the ballot-boxes, because the contestant has not been able to prove a negative, to wit-: that from the time the boxes were left in the offices of the aldermen up to the time when they were opened and examined they had not been tampered with. They say : ''Upon the question of security, whether these ballot-boxes, when opened and recounted before the magistrates, were in the same condition as when sealed up by the election officers and delivered to the aldermen on the night of the election, there was much conflicting testi- mony and much doubt." Now, sir, the law of Pennsylvania is, that every intendment must be made in favor of the faithful discharge by every officer of his official duty, and it is not a mere matter'of presump- tion. We have no right to say that we fear he has not done his duty, and therefore we will disregard his acts. The law of Pennsylvania gives to every man intrusted with official CONTESTED ELECTION CASES IN CONGEES?. 391 duties the presumption of law that he discharges his duty faithfully ; but here a presump- tion is set up against the aldermen — not against any one alderman in particular, but against the whole community — that because, forsooth, there is a majority for John Kline of eight votes, out of some eighteen thousand cast at the election, somebody must have tampered with the ballot-boxes ; that some fraud must have been perpetrated — a presumption that the parties have been guilty of a crime which, by the act of the legislature of Pennsylvania, sends them to the penitentiary for not less than a year. The House adopted the resolutions reported bj the committee, March 4, 1862 — yeas 105, nays 13. \ Note. — The debate in this case is reported in volume 47 Congressional Globe. For the report: Mr. Dawes, page 1054; Mr. Kelley, page 1061. Against the report : Mr. Johnson, page 1056 ; Mr. Wright, page 1058. THIRTY-SEVENTH CONGEESS, SECOND SESSION. , Beach, of Virginia. A State legislature and a constitutional convention being in existence at the same time, the convention cannot assume legislative functions in the presence of the legislature and fix the time and place for a congressional election. The provisions of the law of Virginia not having been complied with, and a majority of the voters in the district having had no opportunity to participate in the election, it was treated as a nullity. IN THE HOUSE OF EEPEESENTATIVES, March 3, 1862. Mr. Dawes, from the Committee of Elections, made the following report : That they have had the subject-matter of said memorial under consideration, and find the following facts : This district is composed of the counties of Spott- sylvania, Alexandria, Fairfax, Fauquier, Prince William, Rappahannock, Cul- peper, Stafford, and King George, and the election, under which Mr. Beach claims the seat, was held on the 24th of October last, in pursuance 6i a procla- mation of Governor Pierpoint of October 12, 1861. The memorial may be found in Mis. Doc. No. 26, of the present session, and the following is a copy of the credentials of the memorialist: The undersigned, conductor and commissioners of election, having been duly appointed and sworn, do hereby certify that they acted as such conductor and commissioners of election ; that said election was held on the 24th day of October, 1861, at the court-house in Alexandria county, in the seventh congressional district of Virginia, pursuant to law, arid that the follow- ing is a true statement of the vote as exhibited by the poll-book, viz : For member of Con- gress, Samuel Ferguson Beach received one hundred and thirty-eight votes, and Charles B. Shirley, for the same office, received eleven votes; and we further certify that there were no other polls of election held at any other precinct in said county of Alexandria, nor in any other of the counties of this congressional district, as far as we can learn and believe, and that all the other counties of this congressional district are and were, at the time of said election, included within the lines of the rebel army; and we, therefore, further certify that said Samuel Ferguson Beach was, by a majority of all the votes polled in this congressional district, >duly elected a member of Congress of the United States. Given under our hands this first day of November, 1861. WALTER L. PENN, Conductor. JAMES VANSANT, T. A. STOUTENBUEGH, Commissioners. His Excellency Francis H. Pierpoint, Governor of the State of Virginia 392 CONTESTED ELECTION CASES IN CONGEESS. This election is based upon the same authority and was conducted in the same manner as that of Joseph Segar, who claimed a seat in this house as the repre- sentative from the first district in Virginia. The views and conclusions of the committee in that case having been submitted to the House, (Report No. 12 of the present session,) and received its sanction, form a precedent in this case, and will therefore be embodied in this report as far as applicable. A convention assembled at Wheeling, in the State of Virginia, on the 11th of June last, in which were represented, it is believed, thirty-nine counties of the State, situate in what is known as "Western Virginia. This convention adopted on the 19th of June " an ordinance for the reorganization of the State government," after having declared that, because of the treasonable practices and purposes of the State convention lately held in Richmond, and of the execu- tive of the State in connexion therewith, " the offices of all who adhere to the said convention and executive; whether legislative, executive, or judicial, are vacated." By the same ordinance a legislature, or general assembly, for the State of Virginia was created, and required to " assemble in the city of Wheel- ing on the first day of July, and proceed to organize themselves as prescribed by existing laws in their respective branches." Said convention subsequently elected a governor for the State of Virginia, who still holds the office thus con- ferred upon him. The legislature thus created assembled as required, and passed many enact- ments for the whole State of Virginia, elected two United States senators, who were admitted to seats in the Senate, and assumed all the functions of the general assembly of Virginia under its pre-existing constitution and laws. The convention which created and set in motion this new government did not, how- ever, dissolve itself upon the assumption of the several functions of government by the executive officers and general assembly which, in the exercise of pro- visional powers, it had itself brought into being, but continued to hold its meetings after the assembling of the legislature, and to share with it in ordinary legislation for the whole State. The legislature was in session till the 24th of July, and how much longer the committee are not informed. The convention was in session on the 20th of August, and on that day passed an ordinance providing for the election of representatives in Congress in each district where, from any cause, such election was not held on the fourth Thursday in May last, the day provided by law for such election, and also "in the eleventh district,' where a vacancy now exists, an election for such representative shall be held on the fourth Tuesday in October next, which shall be conducted, and the result ascertained, declared, and certified in the manner directed in the second edition of the Code of Virginia." The governor thereupon, on the 12th day of October, issued the following proclamation : THE COMMONWEALTH OF VIRGINIA. Executive Department, Wheeling, October 12, 1861. To the people of Virginia : Whereas several of the congressional districts of this State are unrepresented in the House of Representatives in the Congress of the United States, by reason of failure to elect on the fourth Thursday in May last, caused by armed men in rebellion against the Constitution and laws of the United States and of this State ; and it being the right of the loyal inhabitants in each district to be represented in said House by a representative of their own appointing, the convention of Virginia, on the 20th day of August, 1861, passed an ordinance directing an election to be held on the fourth Thursday in October instant, (24th,) in every district of the State so unrepresented and where vacancies exist. It is further made the law, by virtue of the ordinance aforesaid, that any person who is prevented from attending such election, by reason of the occupation of bis own county by armed men in hostility to the government, hat such voter may vote anywhere in his congressional district. It is further ordained that CONTESTED ELECTION CASES IN CONGRESS. 393 the election shall be conducted, and the result ascertained, declared, and certified, in the manner directed in the Code of Virginia of the edition of 1860. By the 1 1th section of chap- ter 7th of that code any two freeholders may hold an election directed by law at any place of voting, if no commissioner to superintend the same appears and is willing to act, or if no commissioners have been appointed to hold the election. f Now, therefore, in consideration of the promises, I, Francis H. Pierpoint, governor of the Commonwealth of Virginia, do hereby entreat the loyal voters of this State to hold elections in their several districts on the day above mentioned, to the end that the people may be rep- resented, the principle of representative government sustained, and the State have her due weight in the national legislature. F. H. PIERPOINT. This proclamation applies in terms to districts unrepresented " by reason of failure to elect on the fourth Thursday of May last." There was, however, at the time this election was held, a gentleman, Hon. 0. H. Upton, representing this district in the present Congress under an alleged election upon said fourth Thursday of May last. - But as the House has /since declared Mr. Upton not entitled to the seat, it may, "with propriety, be held to come within the terms of the proclamation. It is not claimed by the memorialist that any poll was opened at any other precinct or voting place in the whole district, except in the city of Alexandria ; but he asserts that the ballot-box knows no quorum, and that the numher of votes cast is not a legitimate inquiry beyond the necessity of ascertaining for whom a majority was given. If the votes are cast according to law, and legal votes, then it matters not whether they be few or many. The commit'ee have been led to apply the rule, thus set up by the claimant, as the only test. Were the votes cast at this election so cast in conformity to the existing laws of the State of Virginia ? The whole authority for this election is the ordinance of the Wheeling con- vention passed August 20. Assuming that the proceedings of that convention, and of the legislature and executive created by it, have ripened into a State government, legal in all respects, still the question arises, was it one of the func- tions of that convention to provide for the time, place, and manner of electing representatives in Congress, especially after- the legislature had assembled ? The purpose of that convention was the creation of a new State government. The only basis upon which it rests is necessity. A new government must begin somewhere, and there must be somebody to make it. As necessity was the foundation, so also it was the limit of the power called into being for the sole purpose of inaugurating a new government. It could do anything necessary to carry out that purpose, and when that was done it could do no more. Its functions ceased the moment the new government took on form and life. The two cannot, in the nature of things, exist and move pari passu. Now, long before this ordinance had passed the convention, there was in existence a governor and a legislature, having all the powers that a gov- ernor and legislature could have in Virginia — that is, all the powers which the constitution of Virginia clothes a governor and legislature with, not in conflict with the Constitution of the United States. Now, this latter instrument provides (art. 1, sec. 4) that "the times, places, and manner of holding elections for senators and representatives shall be pre- scribed in each, State by the legislatures thereof." It is a legislative act. It is a law. If the time had been fixed in the constitution of the State, recognized and acquiesced in by the legislature, it may be said to be the act of the law- making power — a legislative act. But this time and manner were not fixed in the organic act, nor by the legislature, but by the convention assuming legisla- tive functions in the presence of the legislature itself. Again : the ordinance itself proposes to conform this election to the code of Virginia. It " shall be, conducted, and the result ascertained, declared, and cer- tified in the manner directed in the second edition of the Code of Virginia." 394 CONTESTED ELECTION CASES IN CONGRESS. Has the election under consideration been conducted in all respects according to the requirements of the Virginia code ? Title 3, chapter 7, section 14 of tha^ code provides for elections to fill vacancies in Congress, and enacts that they "shall.be superintended and held by the same officers, under the same penal- ties, and subject to the same regulations as are prescribed for the general elec- tions." Section 16 of the same chapter provides that "a writ of election shall be directed to the sheriff or sergeant of the county or corporation for which the election is to be held ; or if the election,is to be held for an election district, or to fill a vacancy in the senate or in Congress, to the several sheriffs and ser- geants of the counties and corporations which, or any parts of which, are in- cluded in the district. It shall prescribe the day of election, (to be the same throughout the district,) and may fix a day on which the officers conducting the election are to meet to make returns, not later than that .fixed bylaw in the case of a regular election." Now in the present case there is nothing which answers to a writ of election. The only paper originating this election is the proclamation of the governor of October 12, already copied into this report. This proclamation can be considered in no sense a writ of election. It commands nobody— no authorized officer to hold an election. It only "entreats the loyal voters" to hold an election, and is addressed not "to sheriffs," &c, but " to the people of Virginia." This is no technical defect. The 17th section of the same chapter of the Code provides something for the several officers to whom the writ is directed to do before the election can be held. That section is in these words : Each officer to whom a writ of election is directed shall at least ten days before such election give notice thereof, and of the time of the election, by advertisement at each place' of voting in his county or corporation. The reason of this enactment is manifest. The law, which all are presumed to know, fixes the time of a general election, but does not fix the time of holding a special election. It is done by the governor in his "writ of election," directed to the sheriff. This provision of law is necessary to insure notoriety, and it is made the duty of the sheriff, to whom the writ is directed, to do it in a particular manner. Now, this proclamation, if a writ, is directed to no sheriff. It com- mands nobody to give the notice or to open the polls required bylaw. It only " entreats the loyal voters of this State to hold elections in their several districts on the day above mentioned." Not only was there no poll opened in any precinct in the district, except in the city of Alexandria, but no notice of thi3 election was ever given, by adver- tisement or otherwise, at any other precinct. Indeed, all attempt at giving notice or opening a poll at any other precinct was an impossibility. The whole district was in the possession of armed men, with the exception of the city of Alexandria and a very small portion of the district in the immediate vicinity of the Potomac. All the rest of the district was in the armed occupation of the rebels, and all lawful authority subverted. To advertise or open a poll would have surely secured an arrest for treason by the rebels, and an attempt to cast a vote would ha,ve incurred the same penalty. That small portion of the district not in pos- session of the rebels at that time was occupied by our own troops and subject to the law of the camp alone. Outside of the city of Alexandria there was not a single officer of the law to discharge any of the functions of his office. There was, then, a total failure to comply with these essential provisions of the law of Virginia. The same Code requires (title 3, chapter 8, section 3) the officers con- ducting this election to meet at the court-house, in the county of Alexandria, on the fifteenth day thereafter, to compare the returns and declare elected the person having the greatest number of votes in the whole district. This has never been done, and of what was done in the whole district the committee have no official evidence, and only know there were no other votes by knowing that voting elsewhere was an impossibility. By the eleventh section of the same chapter CONTESTED ELECTION CASES IN CONGRESS, 3b5 return is to be made to the governor, and he is to make proclamation of the person elected within sixty days. There has been no such proclamation in this case. It is apparent, from what has been already said, that if the claim of the me- morialist rests exclusively upon a strict conformity with all the provisions of law, it cannot be maintained. But the committee do not desire to rest their conclusions upon so narrow a basis. If the Union voters of the district had had an opportunity to choose a representative — if there had been no armed occupation of the district by rebels, so that polls could have been opened at the various voting places in the district, and all who desired could have deposited their ballots, and had done so in con- formity with the provisions of law, so far as the disturbed and abnormal condition of things would permit, the committee would have sought some way to give effect to such election. But enough of the facts surrounding this election have already been stated to show that such is not the case. There was but one single poll in the whole district opened, and but one hundred and forty-nine votes cast. The reason why there were no other polls opened or more votes cast cannot be better expressed than by the three freeholders themselves who^ certify to this election. This is their language : And we further certify that there were no other polls of election held at any other pre- cinct in said county of Alexandria, nor in any other of the counties of this congressional dis- trict, as far as we can learn and believe ; and that all the other counties of this congressional district are, and were at the time of said election, included within the lines of the rebel army. This state of things is no fault of the memorialist or the Union voters of the district ; but it did exist on the day of this election. How can it be made to appear, then, that the memorialist is the choice of the district, or that if an op- portunity had existed an overwhelming majority of votes would not have been cast against him ? In what sense can it be said that those who did not vote are to be presumed to acquiesce, when they neither had the opportunity to vote, nor the knowledge that voting was going on 1 Acquiescence presumes liberty to protest. In this instance that liberty did not exist. In conclusion, the committee are, for the foregoing reasons, of opinion that the memorialist was not, by virtue of the votes cast for him in the city of Alexan- dria on the 24th of October last, elected a representative to this Congress from the seventh district in Virginia, and they accordingly recommend the adoption of the following resolution : Resolved, That S. Ferguson Beach is not entitled to a seat in this house as a representative in the 37th Congress from the seventh congressional district in Virginia. Agreed to without debate or division. ■ THIETY-SEVENTH CONGRESS, SECOND SESSION. Byington vs. Vandever, of Iowa. Where a member of Congress entered the military service of the government as a colonel of volunteers, held by the committee that he was not entitled to a seat in the House after he was mustered into the service. IN THE HOUSE OF REPRESENTATIVES, April 11, 1862. MrT G. H. Browne, from the Committee of Elections, made the following report : Mr. Vandever claimed to be a member of this Congress by virtue of an elec- tion held in his district on the day of the presidential election A. D. 1860, and Was nAmittpA iiiidoi- +U«* «i-- — 396 CONTESTED ELECTION CASES IN CONGRESS. It was contended, however, that the day of the presidential election A. D. 1860 was not the day prescribed by the laws of Iowa for the election of mem- bers of Congress, and that, therefore, Mr. Vandever's election was void. The law of Iowa, section 239, page 43, of the Code of 1851, provides that members of Congress shall be chosen at a " general election ;" and section 237, page 42, defines a "general election" to be that at which the members of the general assembly are regularly chosen; and the constitution of Iowa of A. D. 1858 provides that members of the general assembly shall be chosen on the day of the presidential election in the years when there is one, and that they hold their office for two years. These provisions, in the opinion of your committee, fix the days of presidential election as a 'legal time for the election of members of Congress in Iowa, and hence they are of the opinion that Mr. Vandever was duly elected and rightfully admitted to a seat in this Congress as a representa- tive from the second district of Iowa. But after that election Mr. Vandever made to the President an offer to furnish from the second congressional district of Iowa a regiment of volunteer infantry for the service of the country during the war, which offer the President, on the 23d day of July, A. D. 1861, by virtue of the act " To authorize the employ- ment of volunteers to aid in enforcing the laws and protecting public property," accepted, and directed Mr. Vandever to have his proposed regiment ready for marching orders as soon as practicable. Mr. Vandever, with a patriotism wor- thy of all praise, proceeded to enlist and " haVe ready for marchiog orders" the force he had tendered, (acting under directions of the War Department,) and on the 30th day of August, A. D. 1861, was appointed colonel of the ninth regiment Iowa volunteer infantry, and on the 24th day of the following Septem- ber was mustered into and has ever since been in the actual service of the United States, receiving the pay belonging to his rank, and subject, of course, to the commands of his superior officers. A commission, a copy whereof is herewith submitted, was issued to him by the governor of Iowa. In terms it commissions him as->colonel of the ninth in- fantry regiment of the militia of Iowa. The committee are not aware that any other formal military commission ever issued to Colonel Vandever, either from the President or from the governor of Iowa. The letters of the adjutant gen- eral of Iowa, (House Mis. Doc. No. 10, page 1,) and,from Colonel Vandever to the committee, as well as all the other established facts of the case, however, show conclusively that Mr. Vandever was really appointed and is actually serv- ing as colonel of the ninth regiment Iowa volunteer infantry, and that the com mission is inaccurate in the use of the term militia. Colonel Vandever, under the facts, claims, however, that he is simply an offi- cer of the State of Iowa, b cause, (as his letter would seem to imply,) in his opinion, the volunteer force he enlisted and commands is simply a part of the militia of Iowa. But whether Colonel Vandever is to be regarded as an officer in the army proper of the United States, or as an officer of the militia of Iowa, is, in the opinion of the committee, of little importance. If he was actually mustered into the service of the United States, he was, by that act, placed in an office totally incompatible with that of representative in Congress. He has no right as representative to absent himself from the House without leave ; and if he does, is liable to be arrested by the officer of the House, and returned and punished. But he is also bound as an officer of th6 army to be with his regiment, (perhaps a thousand miles distant,) ready to execute the com- mands of his superior officer ; and for his default, is liable to punishment — it may be with death. Or his military superior may take him by force from his seat and duties in the House to his post in- the army. That such a physical impossibility as is thus created, to execute the duties of both offices, renders them incompatible, would seeinto be'beyoud a doubt. ' CONTESTED ELECTION CASES IN CONGRESS 397 But there is also that in the nature of the powers incident to the two posi- tions which renders them incompatible. As representative he may by his vote repeal the law or army regulation creating a duty or imposing a penalty which, as officer of the army, he has neglected or incurred. Or in the exercise of his right, (and perhaps duty,) as representative, to speak of the conduct of his superior military officers, he might utter words for which, as an officer of the army, the superior would have an equal right to cause him to be tried by court-mar- tial and punished. These instances of conflicting irreconcilable duties and powers are sufficient to illustrate the incompatibility of the two offices ; and that the acceptance by the same person of an office incompatible with another held by him, is a vir- tual resignation or forfeiture of the office first held, is too plain a proposition to need illustration. It results from the presumption that no man can intend, as well as from the policy that no man shall be permitted, to hold a trust the du- ties of which he has disqualified himself from performing. All the authorities agree in this principle. And again admitting, for the sake of the argument, that Colonel Vandever was originally simply an officer of the militia of Iowa, still your committee are of the opinion that the act of mustering him into the military service of the United States made him an officer of the United States. The authority which an officer is bound to obey and to which he is responsible, and whose pay he receives, determines under what government he acts, and whose officer he really is. But your committee are of the opinion that Colonel Vandever was really and truly appointed colonel, not of Iowa militia, but of the ninth regiment of Iowa volunteer infantry, and that the latter force is in no sense of the term a militia force, but is a force raised solely by the authority of the federal government, and hence that its officers (Colon°l Vandever among the rest) hold their offices under the United States. The commission, it is true, styles him colonel of the ninth infantry of the militia of the State of Iowa. But a commission does not confer the office. It is, at most, but evidence of an appointment. An error in the commission can- not confer a right to an office to which the person holding the commission has not been appointed, neither can it take away his right to exercise the powers and receive the emoluments of one to which he has been appointed. There are numerous officers which the President commissions that are appointed by others. Suppose there should be ajn error in the commission he confers : certainly it would not take away the office. The appointment itself, and the entrance upon and actual discharge of the duties of an office (by the appointee,) under a claim of right, are the real requisites constituting a person an officer, and decisive of the office to which he is appointed. Neither does the fact that he was commissioned by the governor of Iowa militate against the position that Colonel Vandever is an officer of the United States. The act of Congress under which the force Colonel Vandever com- mands was raised authorizes the governors of the States where the force is raised to commission certain of the officers. The governor acts only by virtue of that law. He is the mere agent of the United States for the purposes indi- cated in the act. The appointment and commissidn would have Jseen just as valid had any other agent been selected to have made and issued them. But the force Colonel Vandever really was appointed to command, and with which he has ever since been in service as commander, was enlisted by direc- tion of the President under the authority of the act of Congress entitled " An act to authorize the employment of volunteers to aid in enforcing the Jaws and protecting public property," which act could have been passed only under that clause of the eighth section of the Constitution which provides that Congress shall have power to raise and support armies. It was not enro'led by the 398 CONTESTED ELECTION CASES IN CONGRESS. State authorities, and then draftpd by virtue of the subsequent clause of the section above cited, which authorizes Congress to provide for organizing, arm- ing, and disciplining the militia. Under this latter clause there is no power to raise forces, but only to organize and arm and discipline those raised or enrolled by the State*. If it had been raised under the latter clause the governor of Iowa would have had the sole undoubted right, under the Constitution, to have commissioned and appointed all its officers ; whereas his only authority now ac- crues to him from the act itself, and is limited to colonels and officers of inferior rank. These considerations seem decisive' of the character of this volunteer force, viz : that it is not a militia force, but a part of the army proper of the federal government. That it was this volunteer force that Colonel Vandever was really appointed to command appears from the letter of the chief clerk of the War Department to the Hon. Wm. Vandever, (House Mis. Doc. No. 40, p. 3;) the letter of the ad- jutant general, of Iowa, (House Mis. Doc. No. 16, p. 1 ;) Colonel Vandfver's let- ter to the committee, hereto annexed ; the letter of the paymaster general of the United States, (House Mis. Doc. No. 40, p. 6 ;) and every other well-established fact in the case. That he accepted said office, and has since been in the actual service of the United States, receiving his pay as colonel of the ninth regiment of Iowa volunteer infantry, is beyond a doubt; indeed, his own letters to the committee so declare. The committee are, therefore, clearly of the opinion that in whatever light Colonel Vandever is regarded, whether as an officer of the militia of Iowa, ac- tually mustered into the service of the United States, or as an officer of the army proper of the United States, his position is not only incompatible with that of representative in Congress, but also that his case falls clearly within the last clause of the 6th section of art. 1 of the Constitution of jthe United States, which provides that no person holding an office under the United States shall be a member of either house (of Congress) during his continuance in office. If any decision of this house, construing, so plain a provision of the Consti~ tution, were necessary to support the opinion which the committee have reluc- tantly felt themselves compelled to adopt, they submit that it is found in the cases of John P. Van Ness, reported in Contested Elections, p. 122, and of Colonel Yell, in the 2d session of the 29th Congress. — (See vol. 17 Congres- sional Globe and Appendix, p. 341.) The case of Colonel Yell is believed to be perfectly decisive of the question now presented to the House. The loyalty, patriotism, and valor which prompted Colonel Vandever to leave the comparative ease of this hall and take upon himself the labors, vexations, hardships, and. dangers of the recruiting service, the camp, and the battle-field, impressed \he committee with the warmest admiration of his character, and ex- cited in them a strong desire to find some valid reason for reporting in favor of his retaining his seat. This they have been unable to do; and the great im- portance of the principles which govern the case, as well as the quasi judicial character imposed in these investigations upon the committee, forbid them to allow prepossessions or favor to affect their decision. That no member of this house shall be allowed to hold, at the same time, an incompatible office, and that no other department of this government shall be allowed to exercise any influence over its members, by distinctions and emolu- ments conferred, or any control by virtue of superior authority, are principles that involve the existence, integrity, and rights of the House, and the just dis- tribution of the powers of the government. They were deemed of such vital importance as to demand a place as an express provision of the Constitution, inserted after the fullest debate and consideration. In view of the necessity of maintaining these principles in their full-extent, the committee could not allow any extraneous circumstances to influence them. However much they might honor Colonel Vandever for his noble conduct, they. CONTESTED ELECTION CASES IN CONGRESS. 399 must judge his rights by the same law that is applicable to the most undeserv- ing mt'mber of the House. They have therefore felt compelled to report and ask the House to adopt the following resolution : Resolved, That William Vandever has not been entitled to a seat as a member of this house since he was mustered into the military service of the United States as colonel of the ninth regiment of Iowa volunteer infantry, to wit, since the 24th day of Septomber, A. D. 1861. The debate in the House was confined principally to a statement of the case by Mr. Dawes, of the Committee of Elections, extracts from which follow: The resolution, reported unanimously by the Committee of Elections, declares that Wil- liam Vandever vacated the seat which he held in this house by accepting the positiou of col- onel in the volunteer forces of the United States. The question presented by the commHtee is divided into two parts: the first js, whether the office which he accepted was in itself of such a nature as to be incompatible with the duties incumbent upon him as a member of this house? The second is, whether it be so or not, does not the Constitution of the United States require that he who holds a seat in this house, and accepts such an office as this, shall vacate it? In other words, is he not by the Constitution disqualified from holding a seat in this house by the acceptance of the office of colonel of the volunteer forces ? The question thus divides itself into two branches, and to these two I desire to call the attention of the House for a single moment, reciting simply so much of the report as finds that Mr. Vandever, after having been duly elected — which the committee find, although the ques- tion was raised whether he was ever elected — but, after having been duly* elected to a seat here, tendered his services to the President of the United States under the law organizing a volunteer force for the suppression of the rebellion, and, accepting the position of colonel of the ninth regiment of Iowa volunteers, mustered into the service of the United States as such colonel, and has served up to this time in that capacity, having drawn his pay both as a col- onel of Iowa volunteers in the United States service and as a member of this house. Now, are these two positions compatible with each other ? Are the duties of a member of this house and the duties of an officer of the volunteer forces of the United States of such a char- acter that they can both be discharged by one and the same person? It is very evident that they .cannot be discharged at the same time by one and the same person, because they are to be discharged upon different theatres. ■ The duties of a representative are here in this hall : the duties of an officer are in the field ; and, therefore, these duties cannot be discharged at the same time, because no man possesses the power of occupying two places at one and the same time. They are of such a character that they cannot be properly discharged, if at all, by the same person, because the representative upon the floor passes upon his own acts as an officer in the field. While in the military service, and under the command of the commander-in-chief, he cannot act in- dependently here, for he may, by the order of his superior officer, be taken from his seat here at any moment; he may be ordered out of his seat here when he is upon the very point of casting his vote either upon the conduct of his superior officer, or upon the question of pre- scribing rules and duties and imposing obligations not only upon his superior officer but upon himself. He may be required, in the discharge of his duties as a representative here upon this floor, to pass upon the conduct of his superior officer, the commander-in-chief. He may arraign him here for impeachment, and he maybe, according to the rules and articles of war, immediately arrested therefor and tried by 'court-martial and shot, if it may please the court-martial to so order. He may be called upon here to vote upon the longer contin- uance m force of rules and articles of war which he may himself have violated, and that, too, while he himself is being tried by court-martial for the very offence. He may come in here and vote to annul the very article of war under which he is being tried. He may come in here and vote to declare that to be no longer an offence against the articles of war which he himself has committed. The President of the United States may, as commander-in-chief, have measures which he is desirous of obtaining the sanction of law for, and he may order those who are under his command as his inferior officers to march into this hall and cast their votes for or against any measure, and if they violate his orders he may further order them to be court-martialled and to be tried for insubordination. Measures may be pending in this hall touching upon the manner in which the war is to be conducted. They may be peuding by a very close vote, and that vote be determined by the very few men that are, even at this day, officers under hiru in the volunteer corps ; and if need be, he may at any rate multiply those officers until he may command a majority under any and all circumstances in this'house. The very nature of the duties of a military man and the nature and duties of a member of this house are so incompatible that, by the rules of law, if there were no constitutional provis- ions whatever on the subject, it will appear beyond a. doubt to every legal mind impossible for a man to discharge the duties of an officer of the volunteer corps ot the United States and at the same time consistently discharge .the duties of an independent representative of the people upon this floor. But, sir, the Constitution has not left us even to depend upon the established rules of law, under which any court having jurisdiction of such a case would 400 CONTESTED ELECTION CASES IN CONGRESS. rule that by the acceptance of one office a man would necessarily vacate the other office, in- compatible, as I have stated, previously held by him. The Constitution, however, expressly declares that — "No person holding any office under the United States shall be a member of either house during his continuance in office." Whatever may be the character of the office, whether it be of such a nature that its duties are incompatible or not, no person may hold the two offices. The solicitude of the framers of the Constitution that every member occupying a seat here should be not only theoretically but practically and entirely independent of the executive, induced them not only to extend the rule to a matter of incompatibility in the duties of the two offices, but to prohibit absolutely any man holding an office under the United States to hold a seat in this body. So that, whether we look at the nature of the office itself and the duties that follow upon its acceptance, or whether we look at the plain provisions of the Constitution of the United States, there does not seem to the committee a doubt as to how this case must be decided. The committee, appreciating as they do the patriotic motives which induced not only Colonel Vandever, but all others similarly situated in this house, to forego their positions here for the more arduous, difficult, and dangerous position in the field, were solicitous to find some way of escape from the conclusion to which they have arrived ; but they have been utterly unable to arrive at any other conclusion. However reluctant they may have been in adopting the course they have felt themselves compelled to pursue, they do not see by what means they can escape from the result that Colonel Vandever, by accepting the office of colonel of vol- unteers, and being mustered into the service of the United States, vacated his seat in this house. Mr. Sheixabarger. I wish to ask this question of the chairman of the Committee of Elections. I agree with him in the substance of what he has said, and in the conclusion to which he has come ; but I wish to know if Colonel Vandever was not, in fact, a member of this house duly elected, and that he afterwards accepted an office under the government of the United States ? If that be the fact, I then wish to know whether this affects the vacation of his seat as a member of the House, or whether, on the other hand, the offiee that he sub- sequently took is one that he could not take, and that his commission to the second office is therefore void: The provision of the Constitution immediately preceding that quoted byjhe gentleman from Massachusetts seems to favor the latter construction : "No senator or representative shall, during the time for which he was elected, be ap- pointed to any civil office under the authority of the United States." Mr. Dawes. In reply to the gentleman I will state that which of the offices a man vacates when he accepts a second office, the duties of which are incompatible with those of the one he before held, whether we look into the provision of the Constitution or to the set- tled decisions of the courts, cannot, for a moment, be a matter of doubt. It has always been held in the courts of the United States, and, so far as I know, in the courts of the States, whenever the question has been raised, that by accepting an office the, duties of which are incompatible with those of the office he before held, he necessarily vacates the first office. A case precisely in point is quoted in the very last Massachusetts reports ; a similar case occurs in the Rhode Island reports ; and like cases occur in those pf other States, and they all are uniform upon this point. It could not well be otherwise. He is free to elect which of the offices he will discharge the duties of. Both being conferred upon him, he is at liberty to determine which he will accept ; or, having accepted one, he is at liberty to resign it and accept the other. But being so at liberty, and the duties of the two, as I have said; being incompatible, the legal effect of accepting the second office is the election of that office and consequently the vacation of the other, whether by formal resignation or not. I believe the authorities are all clear and concurrent upon that point. In accordance with that decision, I repeat, the moment a man holding a seat upon this floor as a member of the House accepts and enters upon the duties of another office, the duties of which are incompatible with those of a representative, that moment his seat as a member of this house becomes vacant, whether by formal resignation or not. The moment a member of this house accepts a commission in the military service of the United States, and qualifies under it, he is bound by the articles of war, and those articles of war are as incompatible with the exercise of the duties of a member here as slavery is incompatible with freedom. The articles of war are, and from their nature must be, to some extent, a tyrannical code that holds him to the strictest discipline. No one of the duties it imposes can be discharged while he sits in his seat and discharges the duties of a representative here. Therefore, while the nature of the two offices was such as to impel the committee irresisti- bly to the conclusion to which they have come, the express provision of the Constitution held them there likewise. They also find that the precedents in point are clear and equally con- clusive. There is no departure in the report we have submitted from the precedents. There are precedents as precisely like this as two cases can be like each other. The House adopted the resolution without a divisio 1. The case, so far as the rights of the contestant, Mr. Byington, were affected, was brought ip again. CONTESTED ELECTION CASES IN CONGRESS. 401 February 5, 1863, the subjoined debate occurred in the House : Mr. Dawes. Mr. Speaker, I rise to a question of privilege. After the action of the House a few days since on the resolution reported by the Committee of Elections in reference to the right of Mr. Vandever to a seat in this house, it became necessary for the Committee of Elections to report back the papers submitted by Mr. Byington, the contestant, and to ask to be discharged from their further consideration. I am instructed to make that report at such time as the House will consent to let Mr. Byington be heard on a point not presented to the House, and on which there has been no consideration in the House : that is, on the point whether Mr. Vandever ever was elected to this house. It was claimed by him, and was made the ground for contest to some extent, that Mr. Vandever never was elected to this house at all, and that therefore he had no right to a seat upon this floor. On that point, the committee not agreeing with him, when the case was submitted to the House 1 made no comment at all. It is customary in all cases to permit the contestant to be heard, if he de- sires it. At the time the case was up before the House the House did not seem to'be in a temper to permit discussion to any great length ; and it was owing to what I supposed to be the temper of the House at that time that I did not give him an opportunity to be heard. Mr. Bingham. I ask the gentleman from Massachusetts whether the proceedings of the contest by Mr. Byington of the seat of Mr. Vandever in the thirty-seventh Congress were instituted under the law of Congress ? Mr. Dawes. I merely ask in behalf of the contestant that he may have the usual courtesy extended to him that has been extended to every contestant to argue that point. I will answer the inquiry of my friend from Ohio, [Mr. Bingham.] He asks whether this contest has been instituted by this contestant under the provision's of the statute of the United States. I answer that it has not, for a plain reason. This house has utterly refused, on one or two occasions, when, the Committee of Elections attempted to hold it to the provisions of that statute*; and the House has refused to hold the contestants to the provisions of that statute. In this particular case it was utterly impossible to conform to the provisions of that statute. The first is,.'that notice of cohtest shall be served thirty days after the certificate was granted to Mr. Vandever. This contestant was not in such a position as to give that notice for under a year. Mr. Bingham. Why? Mr. Dawes. For this reason: be does not claim that he was elected; but that nobody was elected when Mr. Vandever received this certificate, because, as the contestant claims, no election could be held during that year ; but that it was properly held the next year, when he was elected. Therefore the law of Congress could not apply to the case. I only ask that Mr. Byington shall be heard. I now make the report from the Committee of Elections, that it be discharged from the further consideration of the papers of the con- testant in this case ; and I ask that the contestant he heard by the House on this matter. Mr. Cox. I have a resolution that I think will bring the case before the House, so that Mr. Byington may be heard. Mr. Dawes. Whatever may be the report on the case, I hope that the contestant will not be refused an opportunity to be heard; It has never before been done. Gentlemen need not be alarmed, for 1 do not propose to go into a general discussion of the case. The Speaker. There is a rule of the House allowing contestants to be heard in their own cases. Mi'. Dawes. But this contestant has not had that courtesy extended to him. Mr. Lovejoy. How long does he want? Mr. Dawes. Not very long. Mr. Stevens. I am willing to bring the subject before the House on the resolution of the gentleman from Ohio ; but I ask that its consideration be postponed for three or four days, in order that we may finish the appropriation bills and send them to the Senate.. It would be a convenience to the public business to postpone it. Mr. Dawes. I do not propose to press it against the public business. Mr. Cox. I ask the gentleman to yield to me for the purpose of moving my resolution. Mr. Dawes. I yield for that purpose. Mr. Cox. I offer the following resolution : Resolved, That William Vandever was not duly elected as a member of Congress for the second district of the State of Iowa. Mr. Bingham. I object to that resolution; and I rise to a point of order: that the reso- lution reported from the Committee of Elections on this case has been postponed to a day certain. This is the converse of that resolution, and I hold that the question cannot be brought up in that way. Mr. Daw us. The resolution postponed to a day certain was on a different point. This does not conflict with it at all. The resolution postponed to a day certain was not that Mr. Vandever was not elected to this house, but that after having, been elected he had vacated his seat. This is a resolution that Mr. Vandever was not elected, and that therefore he is not entitled to a seat upon this floor. I reported from the Committee of Elections the papers H. Mis. Doc. 57 26 402 CONTESTED ELECTION CASES IN CONGRESS. of Mr. Byington, in which he contests Mr. Vandever's right to a seat upon this floor. I am willing that the subject shall be postponed to a day certain, when the contestant might be heard. Mr. Stevens. Let it be postponed to Monday next. Mr. Cox. I offer this additional resolution : Resolved, That Legrand Byington was duly elected a member of this house from the sec- ond district of the State of Iowa. That will bring the matter before the House. Mr. Bingham. I make the point of order that the gentleman from Ohio cannot offer two resolutions at the same time. Mr. Cox. I will put them both in one resolution for the sake of obviating the gentleman's objection. The Speaker. The Chair knows nothing in the rules which prevents the gentleman from offering a series of resolutions. Mr. Bingham. They are upon different subjects. ' The Speaker. They both pertain to a seat from a particular district in Iowa. Mr. Dawes. After making the further remark that the Committee of Elections have dis- charged their duty by bringing this subject before the House, I do not intend to occupy the time of the House at all, but, at' the suggestion of the chairman of the Committee of Ways and Means, move to postpone the consideration of this subject until two o'clock on Tuesday next. The further consideration of the case was postponed to the 14th of February when Mr. Byington was permitted to argue his own case, which he proceeded to do; after which Mr. Cox's resolutions were rejected— yeas 84, nays 28 — and the report of the committee was agreed' to without division. Note. — Mr. Byington's speech will be found in vol. 47 of Congressional Globe, p. 964. THIETY- SEVENTH CONGRESS, SECOND SESSION. Morton vs. Daily, of Nebraska. The governor of Nebraska Territory gave the certificate to Mr. Morton, but upon the ground of discovered fraud revoked it, and gave a second to Mr. Daily. The House de- cided that Mr. Daily should occupy the seat during the* pendency of the contest. The entile vote of a precinct was rejected because of fraud. Votes cast from Pawnee Indian reservation were rejected because of their illegality under the act of Congress organizing the Territory. The Indian reservation is no part of the Ter- ritory. A county is not organized until it has elected officers under the territorial laws. IN THE HOUSE OF EEPEESENTATIVES. April 14, 1862. Mr. Dawes, from the Committee of Elections, made the following report : That, in conformity with the instructions of the House embodied in a resolu- tion adopted at the last session, in the following words : Resolved, That the papers in the case of the contested seat for delegate from the Territory of Nebraska be referred to the Committee of Elections, and that they be authorized to inves- tigate and report on the same without regard to notice; and that all other cases of contests for seats in this house be also referred to that committeee forinvestigation'and report — they have examined and considered all the evidence referred to the committee and contained in Mis. Doc. No. 4, of the last session, which was taken by either party on notice to the other. The election out of which this contest has arisen was held on the 9th of October, 1860, and the official canvass by the territorial board of canvassers showed the following result : For Mr. Morton 2, 9S9 For Mr. Daily, 2, 945 Majority for Morton 14 CONTESTED ELECTION CASES IN CONGRESS. 403 Mr. Morton accordingly received the certificate of election, and Mr. Daily took the position of contestants Subsequently the governor of the Territory gave Mr. Daily a certificate of election ou the ground of alleged fraud in the vote counted for Morton, revoking in said certificate, as far as he was able, the certificate before given to Mr. Morton. Between these two certificates, aa~prima facie evidence of an election, entitling the holder to be sworn, in the first in- stance, and occupy the seat pending the contest, the House decided at the last session in favor of that held by Mr. Daily, and he has accordingly occupied the seat, and Mr. Morton has been contestant during the pendency of the contest. But the notice of contest and answer, and all the testimony, was taken, as ap- pears by Mis. Doc. No. 4 of the last session, while Daily occupied the position of contestant. But the committee were, in the hearing, relieved from all embarrassment from this cause by the resolution adopted by the House and already quoted. The allegations and answers of the parties, in support and refutation of which the eviden'ce was taken, are found on pages one to six, inclusive, of the doc- ument already referred to. Constituting a part of the 2,957 votes, counted by the canvassers for Mr. Morton, were 122 votes returned as polled in the northern precinct of L'eau-qui- Court county, 18 votes returned from the Monroe precinct in Platte county, 3& votes returned as polled in the county of Buffilo, and 20 votes returned at the Rulu precinct in Richardson county — in all 199 votes. The sitting delegate, in his specification, challenges all these votes for different reasons, applicable to different precincts. The committee call attention to the evidence having a bearing upon the votes cast at each of these precincts : Northern precinct of L'eau-qui- Court. — The specification of the sitting del- egate is, that no election was, in fact, held in said precinct; that if any part of said votes were, in fact, cast anywhere, it was at some place not within the pre- cinct or the county of L'eau-qui-Oonrt, and by persons not- resident within the said county, nor within the Territory, and that the said precinct consists of lands to which the Indian title has not been extinguished. The place where this alleged election was hald was at the house of one A. B. Smith, at a point on the Missouri river about forty miles above the county seat of L'eau-qui- Court county, nearly opposite to the Tancton Sioux agency in Dakota Territory. A witness by the name of Westerman, (page 7,) who was a resident of the county for more than four years, testifies that he was at this Smith's house less than two months before the election, and found in all that region only two log cabins and five men, three of whom he knew had left before the time of the election, and that when the precinct was established there he was appointed to be one of the judges of the election, and went there for. the purpose of ascertaining how many votes could be polled by actual residents, and found only five men. He visited this place, also, shortly after the election, and could only find two men. Jacob Hack, William W. Warford, and James Cox, three other witnesses, -testified that they were at the election and voted, and all live in Dakota Territory. Warford was one of the judges of the election. They all three agree in their testimony that, notwithstanding there were polled 122 votes, there were not during the whole day over forty persons in all present at the poll ; and Cox, whose testimony is on page 31, estimates the number at only from 20 to 25. They agree in this, that of this number five or six were half-blood Indians, and eight or ten full-blood Indians ; that Indians, half-breeds, and whites all voted, and a portion of them voted a number of times, sometimes by changing their names and clothes, and sometimes by a sort of proxy, calling the name of some absent friend, and depositing a ballot for him. Of those who thus voted, many lived in different and distant parts of the country ; some in the State of Iowa, some at Fort Randall, some in dif- 404 . CONTESTED ELECTION CASES IN CONGRESS. /erent parts of Dakota Territory, and one at St. Louis. Cox examined the poll-book, which is in evidence, and testified that he knew forty-seven per- sons whose names appear on the list, and that all of them were non-residents of Nebraska except A. B. Smith, at whosehouse the election was held, and John L. Tierman, who lived at the same place. John Brazo, one of the names on the list, is an old negro fiddler, who lives at Sioux City, Iowa, one hundred and fifty miles distant. The committee make the following extracts from the tes- timony of Cox, commencing on the 32d page : Question. Did you see any persons vote, and how many more than once 1 Answer. I saw six persons vote more than once. I saw one man vote four times, another three times, another twice, and another I do not remember how many times, not less than twenty. His name was Peas. And the rest I cannot say how many times they did vote. But, from the answer of the same witness to the fourth question, on page 36 of the evidence, it appears that they continued voting in this manner until ' they had supposed they had accomplished their purpose. . 3d question. State whether or no on the day of the election of which you have spoken you heard any observation to the effect that there were votes enough now to elect Morton, or to the like effect ; and if so, by whom the observation was made, and at about what hour, of the day. [Objected to by attorney for Mr. Morton, for the reason that it calls for the declaration of persons not parties to this contest, which is not competent evidence. ] Answer. I heard such an observation made by Charles Booge between the hours of four and five o'clock. 4th. Mention the exact words he used, as nearly as you can recollect them, and to whom they were addressed. Answer. He said, " I think we have about enough votes to elect Mr. Morton." He was then speaking to the judges and clerks of the election and Captain Todd. 5th question. Who is Charles Booge ? Where does he live, and how was he occupied during that day at the poll 1 • Answer. He is sutler for the Indians, lives on the Tancton reserve, and occupied that day in urging men to vote for Mr. Morton. 6th question. Did you see ' at the poll any printed ballots containing the name of Mr. Morton, as delegate, and did you see any containing the name of Mr. Daily 1 Answer. I saw some containing the name of Mr. Morton, but none for Daily. There were seventy-three votes cast at this election .at other known and es- tablished precincts in the county of L'eau-qui-Court, where residents known then and since to be bona fide inhabitants can be easily found by any one. The census of 1860, which, by law, was completed on the first of November, 1860, twenty-two days after this supposed election was held, shows a popula- tion in the whole county of only one hundred and fifty-two persons, men, women, and children, establishing a fair proportion between the seventy-three bona fide voters who cast their votes at the established precincts and the whole number of inhabitants in the county, as the ratio usually obtained in all newly settled counties. But if to these seventy-three undisputed votes at old estab- lished precincts there be added the one hundred and twenty-two alleged to have been cast at this new and hitherto unheard-of settlement, the whole number cast in the county would be one hundred and ninety-five votes, forty-three more than the whole number of inhabitants in the county, men, women, and children, all told. To meet this testimony, on the part of Mr. Daily, if this had been a bona fide settlement of sufficient number to justify a poll of 122 votes, it would have been the easiest thing possible for Mr. Morton to have produced the testi- mony of living witnesses of such weight and number, from the very settlement itself, to put the matter beyond all possible doubt, and to expose the falsity of the evidence here produced ; but Mr. Morton, instead of resorting to this more satisfactory method of establishing the real truth, has contented himself with attempting to shape the credibility of two or three of the witnesses offered by Mr. Daily, by attempting to show, as to two of them, that money paid them for coming in the winter several hundred miles to Omaha to testify to these CONTESTED ELECTION CASES IN CONGRESS. 405 facts before the authorized magistrate living there, had been paid them for the character of the testimony itself, and that thus they were bribed witnesses ; and, as to one other witness, that he was one of the judges of this electiqn, and that he is now swearing against his own return as a sworn judge of election. As to the witnesses paid for coming to Omaha, the committee are of opinion that Mr. Morton has wholly failed in his attempt to ahow that they were bribed. As to the witness swearing against his previous return, the committee are of opinion that that fact does affect his credibility, and that if his testimony stood alone and uncorroborated it must be taken with great caution and allowance ; but when corroborated, as it is in all essential parts by the other witnesses, and especially by the testimony of Cox, about whom nothing has been ever said by Mr. Morton to impair his credibility, the committee have no hesitation in expressing their conviction that this entire vote, alleged to have been cast, at the northern precinct of L'eau-qui-Court county, is fraudulent, and should be ^ejected. It was all cast for Mr. Morton, and therefore 122 votes, under this allegation, must be deducted from his poll. Monroe precinct, Platte county. — The' allegation of Mr. Daily touching this vote is — That of the persons who voted in the Monroe precinct, in the county of Platte, five were not residents of the last-mentioned precinct or county, and the rest were inhabitants and then residents of the Pawnee Indian reservation. The testimony in support of this allegation is from Charles H. Whaley, (page 50.) He is a resident of the precinct, and has been a representative in the legislature of the Territory, and his testimony is of such a character that he cannot be mistaken. His reliability has not been questioned. The com- mittee therefore give his testimony entire. Charles H. Whaley, of lawful age, being first duly sworn according to law, makes the following answers to the questions proposed, to wit : 1st question. What is your age, occupation, and place of residence ? Answer. Age, thirty-three years ; occupation, attorney and farmer ; residence, Monroe, Platte county, Nebraska Territory. 2d question. In what precinct in Platte county do you reside ? Answer. It is called the Monroe precinct. 3d question. Were you there on the day of the general election held on the 9th of October last 1 Answer. I was. 4th question. State what you know about non-residents of said precinct voting at said election ; how manj' in all ; for whom the votes were given ; and the grounds of your knowledge. Answer. I am acquainted with all the residents of that precinct who voted at that elec- tion ; they were twenty-eight in number. The non-residents were twenty-one. I believe, of the non-resident voters, there were eighteen for Mr. Morton and three for Mr. Daily. There were two kinds of tickets, voted. The tickets with Mr. Daily's name on were written, and those with Mr. Morton's name on were printed. The written tickets I distributed myself to the persons voting them, and saw them put in the ballot-box by persons who were residents of that precinct. I saw the votes canvassed, and there were fifteen of these written tickets, containing Mr. Daily's name and the names of our county and precinct candidates — I mean the republican candidates. 5th question. State, if you know, where the non-residents, eighteen of whom you say voted for Mr. Morton, resided at that time. Answer. The following persons, to wit, J. L. Gillis, R. B. Gillis, D. A. Elliott, Charles Zealer, G. W. Hollins, Lewis G. Boyer, Joseph McFadden, and Charles Cooper, resided on the Pawnee Indian reservation. The following named persons, Frederick Koup, P. E. Bogert, Francis Grauer, and James C. Crawford, resided in Cuming county, but were at work at that time on the brio-k-yaj'd on the said reservation. The following persons. M. P. Cook, Isaac Moore, Edwin R. Capran, and Israel D. Ward, were surveyors, and said their homes were in Nebraska City. L. B. Gorham resided in Omaha city ; Moses Hotelling was driving a team for Gorham, and I do not know his place of residence. 6th question. State where the three that you say voted for Mr. Daily resided, and how yqm know that there were just three and no more. Answer. I believe they resided in Cuming county. They were at work, at the time on the brick-yard before mentioned. The fifteen votes that I have spoken of before included Mr. Daily's name and the candidates for fe>untv_ofncers. The remaining three votes con- 406 CONTESTED ELECTION CASES IN CONGRESS. tained only Mr. Daily's name. I saw the fifteen resident voters for Mr. Daily deposit their votes. I know that there were three other votes cast for Mr. Daily, but who cast them, and where they resided, I only know from what they told me. 7th question. State whether or not you were present during the entire canvassing of the. votes given at that precinct on that day, and whether you saw each and all of the ballots counted. Answer. I was present all the time, from the opening to the closing of the poll. I saw all the/ ballots counted, and heard the result declared by the judges. 8tb question. State whether you are sojourning in this place at present, and in what character. Answer. I am here at present as a member of the legislature. Cross-examined. 1st question. At elections held prior to the late election for delegate, in Monroe precinct has it, or has it not, been the practice for residents on the Pawnee Indian reservation to vote ? [Objected to by attorneys for Mr. Daily, on the ground of immateriality^] Answer. Since the reservation has been set apart, they have not voted at the Monroe precinct. 2d question. Do you know of any residents of the Pawnee Indian reservation voting at any election prior to the election held in October last ? [Objected to by attorneys for Mr. Daily, on the same grounds.] Answer. I do not, since the Indians were removed to the reservation, which was a year " ago some time in the fall. " s 3d question. State whether the twenty-one non-resident voters, when presenting their votes at said election, were challenged. * [Objected to by attorneys for Mr. Daily, on the ground of immateriality-.] Answer. I believe a majority of them were. 4th question. State whether those challenged swore in their votes. Answer. I suppose I must answer yes ; but in my opinion it was not an oath that many of them took. The oath was read over to those persons on the reserve who were challenged, and they qualified it by saying they would take the oath provided that the Pawnee Indian reservation was a part of Flatte county. 5th question. State whether that portion of the Pawnee Indian reservation in which, they reside is included in the defined limits of Platte county. Answer. No, sir ; it is not. By an act of the legislature, ■ attaching a part of Monroe county to Platte county, only so much of Monroe county as is not included in the Pawnee Indian reserve was attached to Platte county : I mean to say that Monroe county was incor- porated into Platte county, with the exception of what was included within the boundaries of the Pawnee reserve. 6th question. The persons whom you have spoken of as residing in Cuming county, do you know that, at the date of the election, they had been living on the reserve less than twenty days ? Answer. No, sir ; I am not positive as to the time they had been there. 7th question. How long had the surveyors been there of whom you have spoken? Answer. They came there that day, and went away the next. 8th question. What is your politics? Answer. Republican. Re-examined. 1st question. You have said that those persons whom you designated as non-residents, and who were challenged, expressed their willingness to take the oath upon its being read to them, provided the Pawnee Indian reservation was a part of the county of Platte. What answer, if any, was made by the judges to this observation 1 Answer. I cannot express the answer in the words used. They assented to that, and took the ballots. 2d question. What is the name of the agent for the Pawnee Indians ; whether or no he voted, and whether or no he qualified his oath in the manner you have mentioned ? Answer. His name is J. L, Gillis. He voted, &nd qualified his vote in that manner. 3* question. State whether or no he was the first of the residents on that Indian reserva- tion who offered to vote. Answer. I believe that he was. CHAS. H. WHALEY. Recalled. * 1st question.' State whether the Monroe precinct comprises any part of the Pawnee Indian reservation ; and if not, how far was the poll held from the nearest line of that reservation? Answer. It does not comprise any part of the reservation. The poll was held about three miles from the nearest line of the- said reservation. CONTESTED ELECTION CASES IN CONGRESS. 407 Cross-examined. 1st question. How far is the line of said reservation nearest to the place of voting in said Monroe precinct from the nearest line of the precinct 1 Answer. I have understood from the commissioners who formed the precinct that the west- ern line of the precinct is the same as the eastern line of the reservation. 2d question. Do you, of your own knowledge, know where the western boundary of the precinct is 1 Answer. No more than what I have stated. The treaty makes the eastern boundary line of the reservation, running north and south from the point where the Beaver creek enters into the Loup fork, and that line I understand to be the line of the precinct. 3d question. Do you know that N. P. Cook, Isaac Moore, Edwin E. Capran, and Israel D. Ward, (whom you have spoken of as surveyors, ) had not at the date of said election been in the county of Platte the necessary time to make them legal voters? Answer. The first I saw of them was, I think, about four or five days before the election. At that time I saw them cross the ferry at Columbus from the south to the north side of the Loup fork of the Platte river. They said they had been surveying south of the river. The next I saw of them was on the day of the' election. ' 4th question. Might they not have been in the county and you not have known it ? Answer. Of course they might. Re-examined. 1st question. You say you saw them crossing the ferry at Columbus. They told you they had been surveying ? outh of the river. Is that section of country where they said they had been surveying in Platte county ? Answer. A part of it is and a part of it is not, I suppose. I understood them to say they had been running township lines from the Platte river to the Loup fork. Platte county does not extend west of the sixth principal meridian to the Platte river. Re-cross-examined. 1 st question. Might they not have been surveying south of the river and still been alto- gether in Platte county 1 Answer. That would depend how far they ran their lines. They might have been running lines east and west, and still be in Platte county. i Recalled. 1st question. You say you learned from them that they were running township lines : how long, in your opinion, would it take them to run all the township lines south oi the river in Platte county 1 Answer. I don't know that I am well enough acquainted with surveying to enable me to judge correctly; but I think the township lines south of the Loup fork could be easily sur- veyed in ten days, as I think there would be but one tier of townships in that portion of the county. f Re-cross-examined. 1st question. In running township lines, what is an ordinary day's work ? Answer. I do not know. 2d question. Are you a surveyor ? Answer. I am not. * 3d question. Will you or will you not say, upon your oath, that the surveying party was not also engaged in sectionizing and subdividing ? Answer. I know of my own knowledge that they were not on the north side of the river, ' and Captain Cook told me they had not been. Captain Cook is the one previously referred to as M. P. Cook, and had command of the surveying p»rty. CHAS. H. WHALEY. From this testimony it appears that nearly all of these voters were at the .time residents upon the Pawnee Indian reservation, outside of the precinct ; that when challenged they took the oath, with the condition attached, " provided the Pawnee Indian reservation was considered a part of Platte county." Stat- utes of Nebraska, laws 1855-'56, page 49, require as a qualification of a voter that he reside in the Territory forty days, in the county twenty days next preceding the election, and at the precinct in which he votes at the time of the election. From this testimony it appears that the Pawnee Indian reservation was not within this precinct, and that the poll was about three miles from the 408 CONTESTED ELECTION CASES IN CONGRESS. nearest line of the reservation. But the committee are of the opinion that for another reason the votes cast at this precinct by persons resident upon the Pawnee Indian reservation -were illegal. The act of Congress organizing the Territory of Nebraska in the first section says : Provided further, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or, to include any territory which, by treaty with any Indian tribe, is not, without the con- sent of said tribe, to be included within the territorial limits or jurisdiction of any State or Territory ; but all such territory shall be excepted out of the boundaries and constitute no part of the Territory of Nebraska, until said tribe shall signify their assent to the President of the United States to be included within said Territory of Nebraska. ' It was not claimed before the committee, nor do the committee understand it to be true in fact, that the Pawnees j»ave ever made any such stipulation in their treaty as is here mentioned, or that they have ever signified their assent to the President of the United States to have their reserves included within the boundaries or constitute a part of the Territory of Nebraska. It follows, there- fore, that persons residing upon this reserve are residents upon " no p&rt of the Territory of Nebraska," and are not entitled to vote therein. These votes were twenty-one in number, eighteen for Mr. Morton and three for Mr. Daily, and must be deducted from their poll accordingly. Buffalo county. — The specification of Mr. Daily challenging this vote is as follows : That the county of Buffalo was then and yet remains unorganized ; and that the poll held therein was, moreover, open, and votes were cast thereat on the day next succeeding the day of election ; and that several of the votes thence returned were cast by non-residents of the said county. It was agreed by the parties (page 63 of the testimony) that the evidence of Governor Black, given in the contested election case of Daily and Esterbrook, in the 36th Congress, touching the organization of this county, should be taken and used as his evidence upon the same point in the present case. Upon a review of that testimony, reprinted, (commencing on page 63,) the committee have arrived at the same conclusion as was arrived at by the Committee of Elections of the last House, and which conclusion was sustairied by vote of the House itself. Your committee cannot better state that conclusion than in the words of that committee : By an act of the legislature of Nebraska Territory, March 14, 1855, provision was made for the organization of this county. This is its language : "That all that part of the Terri- . tory included in the following limits is hereby declared organized into a county to be called Buffalo: Commencing at a point in the centre of the Platte river, ten miles east from the mouth of Wood river ; running thence westward up the southern channel of the Platte to the mouth of Buffalo creek ; thence north thirty miles ; thence east to a point directly north of the place of beginning ; thence south to the place of beginning. The seat of justice is - hereby located at Nebraska Centre." No steps were taken, under the laws of the Territory, for the organization of this county by the election of officers; and it is the opinion of the committee that without such election there could be no organization. The act of the legislature does not organize a county ; it merely provides for and authorizes an organization — that is, it authorizes an election to be . held for county officers, under the general law regulating elections. If no such election is held, the county, notwithstanding the act of the legislature, cannot exercise any of the powers of an organized county, and cannot legally vote either for territorial officers or dele- gate to Congress. The legislature of the Territory of Nebraska has provided, by an act irl relation to new counties, " that whenever the citizens of any unorganized county desire to have the same organized, they may make application by petition, in writing, signed by a majority of the legal voters of said county, to the judge of probate of the county to which such unorganized county is attached; whereupon said judge of piobate shall order an election for county officers in such unorganized county." It then provides for a notice of the election, and a return of the votes "to the organized county," the execution of the necessary bonds by the officers elected, and the entire mode of consummating the organization. And it further provides that until this is done, "all unorganized counties shall be attached to the nearest organized county directly east of them for election, judicial, and revenue purposes." CONTESTED ELECTION CASES IN CONGRESS. 409 The committee do not suppose that the legislature intended to dispense with this mode of organization by the simple use of the word "organize" in the act creating a county. To suppose that they did would be to assume that they designed to prevent an election by the people of the necessary county officers. They know of no possible mode of legally or- ganizing a county except by the election of officers by the people — a rule which must meet with universal assent under a popular form of government. It is not pretended that Buffalo county was attached "to the nearest organized county directly east of it for election purposes, for the vote is reported from Buffalo county di- rectly ; and hence the only question to be inquired into is, whether or not it was so organized as that a vote could be legally polled within it ? It appears from the evidence that, in May preceding the election, the governor of the Ter* ritory was solicited " to appoint the county officers for Buffalo county," but that finding himself possessed of " no such power, " he declined to do it. The> governor was clearly right in this determination. He had do power to appoint officers ; not even to fill a vacancy. He had once possessed this latter power, but the legislature had taken it away, and had pro- vided that the vacancies should be only filled by election. But he was as clearly wrong in the other conclusion to which he came. He says that he considered " that Buffalo county was fully organized by the act of the territorial legislature." How it was organized without officers he does not say, and the committee have already stated that, in their opinion, such a thing is impossible. But, acting upon this strange assumption, he says he advised the course which he considered necessary to be taken. This was, that application should be made to the county commissioners of the nearest county on the east to have the initiatory steps taken for the election of county officers. It is not material to inquire whether he was right or wrong in this, because it does not appear that any such steps were ever taken. On the contrary, it is in proof that a few persons met together, without any notice, and, after the manner of a public meeting for political or other purposes, elected a president and secre- tary, and, upon mere motion and vote, chose all the county office s ! The proceedings of the meeting were signed by the president and secretary, and forwarded to the governor, who, upon the strength of it, commissioned the officers so chosen, although there is no laiy authorizing him to issue commissions to county officers. And these are the officers who must have conducted the pretended election in Buffalo county, and who returned the 292 votes sent from that county for the sitting delegate, [then Mr. Esterbrook. ] The committee consider the whole of these proceedings irregular and void in law. The committee cannot omit further comment upon this extraordinary proceeding ; for, to your committee, extraordinary it seems, in every sense of the term. The meeting was held on the 25th of June, 1852, at the place designated in the act of the legislature as the county seat, and where, according to the proof, there is " one dwelling-house, one storehouse, one barn or stable, and one warehouse," and where but "three persons" constituted the population. The object of the meeting was avowed to be the "recommending suitable persons to fill the several offices of Buffalo county." And this object was carried out by the simple adoption of the several motions put to the meeting. For example: Mr. Charles A. Henry moved that Henry Peck be chosen probate judge, Charles T. Lutz sheriff, Joseph Huff commis- sioner of one of the precincts, Patrick Care* justice of the peace, and John Evans constable, and they were all so chosen by the adoption of the motion. And so of all the rest. And then it was resolved "that Dr. Henry, with men living in the eastern precinct, do have them recommend suitable persons to fill the offices of justice of the peace and constable" in a precinct not supplied with officers at this meeting. And the whole proceedings closed with a resolution to the effect that the meeting "recommend the above-named gentlemen to hold the several offices to which they have been nominated by this meeting, and request the gov- ernor of this Territory to commission them for said offices. " It will be seen that this meeting merely "nominated" these officers, and recommended them to be commissioned by the governor ; or, in other words, that it designed that the * governor should appoint them. It has been already stated that the governor had no such power — that he could have nothing to do with the selection or commissioning of officers. Yet, notwithstanding this want of power, he did both appoint and commission the persons recommended and nominated by this meeting, and several others who were not recommended. It needs no argument to prove that no authority to hold an election or to transact any county business was conferred upon these persons by his act, and that all their proceedings are absolutely void. It is of no consequence to inquire what power he considered himself as possessing, since the fact that he did appoint them appears in proof. In a letter dated July 26, 1859, and written from the "executive chamber," to one of the persons nominated to him, he says : " I have this day appointed the following officers," &c, going on to enumerate those •who were nominated by the meeting. All these proceedings were in clear violation of law. The foregoing facts in relation to the pretended organization of Buffalo county being made by the contestant, [then Mr. Daily,] and the sitting delegate [then Mr. Esterbrook] having offered no evidence of any other organization, it is necessarily to be inferred that there was no other; since, if there had been, he would have had no difficulty in showing it. Indeed, he has left it to be inferred from his mode of cross-examining the governor, whose testimony has been taken, that he did not rely upon any organization, but upon the legality of that made by the governor. The committee, therefore, conclude that there was no other, and have no difficulty in deciding that to be clearly in violation of law. 410 CONTESTED ELECTION CASES IN CONGRESS. This committee agreeing with that committee that Buffalo county had not been organized, the thirty-nine votes counted by the canvassers for Mr. Morton, as cast for him in this county, must be deducted from him in this poll. It was also claimed by Mr. Daily, under his specifications, that 108 votes counted for Mr. Morton as from Kearney and Shorter counties should be thrown out for want of sufficient notice of the election. The only testimony upon this point is from a single witness, Henry W. Depuy, (page 75.) His testimony was to the effect tbat he was at Kearney City the day before and the day of the election, and that on the morning of the day before the election he saw notice of the election being posted up, and on the evening before the elertioahe saw the clerk of Kearney county start with election notices to the judges of election at Cottonwood Springs, in Shorter county, ninety miles distant from Kearney City, where a precinct had been organized. This evidence, however strong in its tendency to produce the conviction that no other notices had been given of the election at these precincts before that day, nevertheless lacks the essential proof that these notices were the first thus put up, and there being no evidence of fraud connected with this poll, the committee do not recommend that these votes be rejected. It was also claimed by Mr. Daily that all the votes polled for Mr. Morton at the precincts of Rulu, Arago, and St. Stephens, in Richardson county, about 140 in all, should not be allowed him, first, because these precincts are included in what is called the half-breed Indian reservation. The committee are of opinion, from the express and unequivocal organic act of the Territory, already quoted, that an Indian reservation constitutes no part of the Territory of Nebraska unless by consent of the Indians themselves, made known in the manner specified in the act ; but this half-breed reservation differs in some respects from an ordinary Indian reservation. It was stated to the committee, and not denied, that these lands had been divided, or partitioned off, to the half-breeds in severalty, and the government has given them patents. Whether this would change the character of the reservation, so as to take it out of the exception in the organic act, the committee do not think it necessary to determine, since the result arrived at by them does not depend upon such deci- sion. The vote at Rulu, on this reserve, is further objected to by Mr. Daily, because two of the judges of the election were residents of the precinct, and twenty-four non-residents of the precinct voted therein. The law clearly pro- vides that the voter must reside within the precinct where he casts his vote. The laws of the Territory (1855-'56, page 50) provide — Every free white male citizen of the United States who has attained the age of twenty-one years, and who shall declare on oath their intention to become such, and shall have taken an oath to support the Constitution of the United States, and the provisions of the organic act, of this Territory, shall be entitled to vote in the precinct where he resides at all elections, provided he has been an inhabitant of the Territory forty days, and of the county twenty days, next preceding the election. While the committee have been at all times disposed, so far as they can, consistently with the provisions of law, to give effect to the will of the voter, expressed in good faith, they do not see how they can count the vote of a non- resident of a precinct any more than they could a non-reiident of the county or Territory. The provision of law that a man must vote in the precinct where . he resides seems to the committee to be a wise one to prevent double voting, and they know of no way to enforce that wise provision except to insist upon its observance. Prom the evidence of Dundy (page 40) it appears that twenty- four non-residents of Ruhr precinct and five half-breed Indians voted at that precinct. Mr. Morton contented himself in this case, also, with an attack upon the credibility of the witness, E. S. Dundy, and called several witnesses who swear they would not believe him under oath. But these witnesses do not live in the same town or neighborhood with Mr. Dundy, who resides at Falls City, but in or near the town of Rulu, nine miles distant from Falls City, and it was CONTESTED ELECTION • CASES IN CONGRESS. 411 \ made to appear that a titter feud existed between the people in these two towns. There were called in reply twenty-one witnesses, the immediate neighbors of Mr. Dundy, who sustained his character for truth and veracity, and the com- mittee have given full credit to bis testimony. It appears that twenty-four non-resident whites and five half-breed, Indians voted at this precinct, but it is uncertain for whom they all voted ; but as Mr. Daily received but nine votes in all at this precinct, twenty of them at least must have voted for Mr. Morton. The committee therefore reject that number from the count of Mr. Morton. In answer to these allegations on the part of Mr. Daily, and in support of his own claim to the seat, Mr. Morton served upon Mr. Daily his answer, con- taining twenty-three specifications, (page 3 of the testimony.) In support of many of these specifications he offered no testimony. Those in support of which he did offer testimony the committee now proceed to examine. The second, third, and fourth specifications relate to the vote in Falls City, Richard- son county, where Daily received 104 votes and Morton 17 votes The only evidence among the many witnesses which has a tendency to support said alle- gations is from one James Buchanan, (page 134 of the testimony,) one of the • judges of the election. The evidence of this witness, in its character improba- ble, is contradicted by that of his own brother, who was a clerk of the election, by one of the other judges, and by his own statement on the night after the election, as testified to by one Coleman, (page 152.) Buchanan is also success- fully impeached by twenty-one witnesses, testifying from intimate knowledge of his character for truth and veracity in the community in which he lives. .Several of these witnesses say, in addition, that he has the character of a noto- rious ballot-box stuffier. The committee refer in this connexion particularly to the testimony of David Dorrington, (page 151 of the testimony.) It also appears that the aggregate vote at Falls City was no larger, if as large, at this election, and that the vote of Mr. Morton, as canvassed, was quite as large as that of the other candidates of his party. The committee see no reason, therefore, for rejecting the vote at Falls City. The fifth specification alleges that the county of Pawnee was no! organized according to law, and no election could be legally held therein. By the statutes of Nebraska, " whenever the citizens of any unorganized county desire to have the same organized, they make app^cation by petition, in writing, signed by a majority of the legal voters of said county to the judge of probate of the county to which said un- organized county is attached, whereupon said judge of probate shall order an election for county officers in such unorganized comity." Notice is. to be given of the election, and a return of the votes to be made to the organized county. All unorganized counties are attached to the nearest organized county directly east of them for election, judicial, and revenue purposes. The only evidence adduced by Mr. Morton to* show that this county is unorganized is a certified copy of the proceedings on file in the clerk's office of Pawnee county, (page 121 of the testimony,) which certified copy he claims contains no evidence of the preliminary proceedings necessary to be had before an election of county officers. This county was attached to Richardson 6ounty before its organiza- tion, that being "the nearest organized county directly east;" and the law requires a return to be made " to the organized county." Mr. Morton should have looked, therefore, among the records of Richardson, not Pawnee county, for these preliminary papers, where, for aught that appears to the contrary, they may be found. He has produced from Pawnee the record of the election of county officers for Pawnee and the certificate of the proper officer of Richardson county, that these several officers of Pawnee had " filed their oath of office ac- cording to law, in such case made and provided." And the certificate from Pawnee county itself declares these officers to have been " duly elected and qualified." So far as Mr. Morton has produced any records of this organization they appeared to be in conformity with law. He" has produced no evidence from the proper custodian of the preliminary papers that they do not also con- 412 CONTESTED ELECTION CASES IN CONGRESS. form to the law. This county has also been recognized by the legislature of the Territory as an organized county. At the session of 1857-'58 it was by ' act of the legislature made a separate and distinct representative district, and authorized to elect one member to the lower branch of the legislature, and has exercised this right ever since by the election of such representatives, whose right to a seat by virtue of such election has been admitted by the legislature. This county, with Eichardson, has been constituted a council district, and the two counties have been in like manner authorized to elect one councilman. The committee are therefore of opinion that it is quite too late now, after such legis- lative recognition, to question the original organization of the county, espe- cially upon so frail evidence as that referred to the committee. After the hearing and argument before the committee was closed, Mr. Morton pro- duced a certified copy of an act of tlie Nebraska legislature passed pending this contest, entitled "An act legalizing the first organization of Pawnee county." The committee think that if there had ever been in such organization any ir- regularities, they had been quite as effectually legalized by previous legislation as by this act. The third objection made by Mr. Morton to the vote of Pawnee county is, that " in the fourth precinct, in said county, where said Daily received 1 3 votes, and this respondent 7 votes, there was no legally constituted election board ; those acting as judges were neither sworn nor qualified, as required by law ; therefore the votes of said precinct ought to be rejected." The only evidence in support of this allegation is that of Newcomb, (page 157,) from which it appears that while the county commissioners appointed three persons to serve as judges of election in each of the two precincts of "Wyoming and Otoe, the returns from each of those precincts were signed by only one of the persons thus appointed, with two other persons associated with him in each case, and that there is no record on file in the clerk's office of the appointment of these two persons at each precinct to act as judges of the elec- tion. The committee understand the law of Nebraska to authorize the appointment and qualification of persons to act as judges of election in the absence of those regularly appointed beforehand by the county commis- ' sioners. Mr. Morton does not show that these men thus acting were not duly qualified. He only shows that there is no record of such qualification in the county clerk's office, nor has he shown that the law requires any record thereof to be kept there. Jn the absence of any certificate of such qualification, it is always a matter of proof by parole whether such judges were qualified or not. The committee do not assume that they were not qualified. The only evidence offered by Mr. Morton in support of his nineteenth allegation was a joint affi- davit, (page 113 of the testimony,) signed by three persons, Johnson, Wagner, and Barnard, and sworn to on the day of the election, without notice to Mr. Daily, and before the votes were canvassed, or any notice of contest whatever. The committee for this reason rejected this testimony ; but it appeared from the cross-examination of one Hedde, (page 59,) a witness produced by Mr. Daily, that no legal notice of this election was given at that precinct, although the vote seems to have been fairly cast ; yet the committee deem the notice pre- scribed by law essential, and do not feel at liberty to say, in the absence of such notice, that all persons had an opportunity to vote. The committee are* aware that the time of this election was fixed by law, and that all are presnmed to know the law ; but in a new country like this, in precincts newly opened and counties sparsely settled, they deem actual notice a safer rule, and therefore reject the 29 votes cast for Mr. Daily at the precinct of Grand Island, in Hall ouhty. Under the twenty-third specification Mr. Morton claimed that the votes in the counties of Olay, Dodge, Oass, Hall, Johnston, Lancaster, Nemaha, Pawnee, and Washington, although counted by the board of canvassers, should all be rejected for defect in the form of return. It was not claimed by Mr. Morton that these returns were false in fact, but that the law required that CONTESTED ELECTION CASES' IN CONGRESS. 413 "abstracts" of the vote of each county should be returned to the board of territorial canvassers, when in truth the return from each of the above-named counties was the aggregate of the vote for each of the respective candidates for office in that county. Admitting that Mr. Morton has made the true distinction, and that an aggregate of the votes thus cast for each candidate in any given county is not an abstract of such votes, is it the duty of the committee to re- ject the votes thus returned for that reason 1 If there had been no return at all of the votes cast in these counties, it would have been plainly the duty of the committee to have ascertained by other testimony, if possible, the actual vote cast in these counties. Now, as it is not denied that the returns from these counties state the actual aggregate vote cast in those counties, the com- mittee take them as evidence of such votes, and count the votes So returned and counted by the territorial canvassers. Mr. Morton offered no evidence in support of his other allegations. During the hearing before the committee Mr. Morton charged that the certificate upon which Mr. Daily was admitted to occupy the seat during the contest was a * forgery, made by Samuel W. Black, late governor of the Territory, afteiyhe had ceased to be such governor, although he did not charge Mr. Daily with any participation in that fraud. At the close of the argument Mr. Morton offered an affidavit, taken since the hearing was commenced, and desired to examine the witness before the committee. To this Mr. Daily, denying the forgery of the certificate, nevertheless consented that the witness might be examined be- fore the committee, provided that he also had an opportunity to produce other witnesses to repel the charge, and also to prove that the certificate held by Mr. Morton was obtained, by bribery. To this Mr. Morton would not consent, because, as he alleged, it would protract the hearing to an unreasonable length. But the committee were of opinion that they had, in this hearing, nothing to do with the certificates ; that the House had considered these certificates in de- ciding who should be the sitting delegate pending the contest, and that nothing was left to the committee at this hearing but to go behind- all certificates, and ascertain who had a majority of the legal votes. Mr. Morton also offered to the committee several other affidavits, taken without notice to Mr. Daily, and some of them taken by other parties in other controversies, with which neither Morton nor Daily were connected, and also reports of the testimony of witnesses, given in the hearing of other matters, having no connexion with this case, none of which papers had been referred to the committee of the House, and all of which were rejected by them. In conclusion, the committee state the result of this examination as follows : Whole number of votes counted by territorial canvassers for Morton. . 2, 957 Deduct vote of northern precinct of L'Eau-qui-Court county 122 Also the vote in Monroe precinct, Platte county 18 Also the vote in Buffalo county 39 Also Rulu precinct, Richardson county 20 199 Total for Morton 2, 758 Whole number of votes county for Daily 2, 943 Deduct votes cast for him in Buffalo county 3 Deduct votes cast for him in Monroe precinct, Platte county 3 , Deduct votes cast for him in Grand Island precinct, Hall county . 29 — 35 Total for Daily 2, 908 Majority for Daily 150 414 CONTESTED ELECTION CASES IN CONGRESS The committee therefore recommend the adoption of the following resolutions : Resolved, That J. Sterling Morton is not entitled to a seat in this house as a delegate from the Territory of Nebraska in the 37th Congress. Resolved, That Samuel 6. Daily is entitled to a seat in this house as a delegate from the Territory of Nebraska in the 37th Congress. • In opening the debate in the House Mr. Dawes alluded to the contestant's objection to the "abstracts" of votes from several counties : A technical objection was made by the contestant to the returns from several counties, and that was that they were not "abstracts" of the votes. The law requires that the returning officers of the several counties shall send abstracts of the votes to the board of territorial can- vassers. The canvassers of several counties sent the entire votes,' the aggregate, and the con- testant says that that was not a compliance with the statute; that they should have sent an abstract ot the votes. Now, without stopping to inquire whether that is a proper and legal distinction, the ques- ' tion arose in the committee, what was their duty 7 Supposing the returning officers had failed properly to return the votes, it was the duty of the Committee of Elections to find out what the vote was. It is not pretended that the returns made are not in point of fact true, or that they did not give the actual votes cast in the counties ; but it is claimed by the contestant that they did not give abstracts, but gave the whole votes in aggregate. Mr. Pendleton remarked : Now, the first point made by the Committee of Elections is as to the northern precinct of L'Eau-qui-Court county, which returned a majority of 122 for Mr. Morton. The allegations , made by the sitting member in regard to this pi'ecinet are four. They are recited in the re-. port of the committee. They are these : first, that no election was. held in the precinct at all ; second, that the votes were cast by non-residents ; third, that the place of casting the votes- was outside the precinct ; and lastly, that the Indian title to a great portion of the land in that precinct had not been extinguished. The Committee of Elections threw out the Whole vote. Now, I desire to call their attention to a rule of law which applies as well to cases of elec- tions under the law of 1851, as under the general law on that subject. It is, that the allegata and the probata must correspond. There is not a scintilla of evidence that any of these, al- legations were true, except that some of the Votes were cast by non-residents. That is all that is pretended or claimed by anybody, and I desire to say to the committee that the proof of non-residence of some voters at a particular precinct would, upon no principle, justify the committee or the House in throwing out the whole vote. * *# a * # * # * # # # * * # The county of Buffalo comes next, according to the report of the committee, and what are the facts in reference to that county ? In 1859 the county of Buffalo was organized. It is said that it was organized by the appointment of officers by a county meeting, an¬ by a regular election. Grant it. I make no question abuut that. Suppose it was so organized, will not a mistake ofthat kind ever be cured 1 The officers then appointed have passed away, and others have been appointed. Elections have been held, and the organization of the county has been kept up. Is the fact that originally the officers were appointed by a county meet- ing and not regularly elected to vitiate through all time the organization of that county 1 It is only necessary to state the proposition in order to establish the validity of the organization;' Would gentlemen have the whole county organization disbanded ? Would they have the officers who are now administering the affairs of the county turned out of office in order that you may go back to correct the original mistake, if there was a mistake, in the appointment of "officers ? The debate in the House was almost entirely confined to the discussion of facts. The whole subject was laid upon the table — yeas 69, nays 48 — leaving the sitting member, Mr. Daily, in the contested seat. Note. — The debate is in vol. 48. For the report : Mr. Dawes, p. 1973 ; Mr. Worcester, •,„ p. 1997 ; Mr. Dailey, p. 2005. Against the report: Mr. Richardson, p. 1995 ; Mr. Voorhees, p. 1976 ; Mr. Norton, 2001. THIRTY-SEVENTH CONGRESS, SECOND SESSION. Joseph Segar again. Mr. Segar was again elected to Congress at a special election. The facts are succinctly stated in the report. The committee came to no conclusion, except to ask the House' to be discharged from the further consideration of the subject. The House admitted Mr. Segar to the seat. ' CONTESTED ELECTION CASES IN CONGRESS. 415 IN THE HOUSE OF REPRESENTATIVES, April 14, 1862. Mr. Dawes, from the Committee of Elections, made the following report : That those credentials, a copy of which is annexed, consist of a certificate signed by "William Mears, conductor at the court-house at Northampton," "Michael H. Higgins, conductor at the court-house of Accomac," and "John O. Evans, conductor at the court-house of Elizabeth City," dated the 22d day of March last, certifying that at an election held on the 15th day of said March in the several couuties composing said district the claimant was duly elected to represent the same in the Congress of the United States. Mr. Segar also pre- sented to the committee during the hearing a proclamation by Governor Pier- point to the same effect, of date the 26th day of March last, a copy of which is also annexed. The first congressional district is composed of seventeen counties, viz : Middlesex, Westmoreland, Richmond, Essex, Northumberland, King and Queen, Lancaster, Gloucester, James City, the City of Williamsburg, New Kent, York, Warwick, Northampton, Accomac, and Elizabeth City. Gov- ernor Pierpoint issued writs of election in due form of law on the 24th day of February, 1862, directed to the sheriffs of the several counties composing this district, requiring them to hold an election for representative to this Congress on said fifteenth day of March. The claimant stated to the committee that he himself took these writs of election to the sheriffs of the counties of Accomac, Northampton, and Elizabeth City, and that iu one of these counties he saw the sheriff post up notice of the election at the several election precincts more than ten days before the day of the election, and in the others he saw the notices after they were put up, but whether" they were up the time required by law he does not know. But no writs of election reached the sheriffs in the other four- teen, counties, nor was any notice of election given, or any election held, at any precinct in any of the other fourteen counties in the district, for the reason that all the other counties were at the time of the election, and had been for a long time, in possession of the rebel army, and the rebel authorities had proclaimed martial law over them. For the same reason no election was held in Elizabeth City county, except at one precinct, Hampton. Notice to the sheriffs of these counties, to the people thereof, the opening of a poll or the casting of a vote at any precinct in any one of them, were all impossibilities. There were cast at this election in the several voting precincts of Accomac and Northampton, and at Hampton, in Elizabeth City counties, as appears by the several annexed certificates from commissioners in said counties, in all 1,0 18 votes, as follows : In Accomac — For Joseph Segar 229 votes. For Arthur Watson. - 406 " In Northampton — For Joseph Segay 65 " For Arthur Watson 32 " For Joseph Yerby , 4 " For James Justice 6 " For William H. B. Custis 7 " For Edward P. Pitts 4 " In Elizabeth City county — For Joseph Segar '■ 265 " Total 1, 018 " » 416 CONTESTED ELECTION CASES IN CONGRESS. Of these, Jos»ph Segar had ' 559 " Arthur Watson 438 " All others 21 " The vote of the whole district for governor at the May election, 1859, was — For Goggin 4, 404 For Letcher 3, 582 7,986 The population of the whole district in 1860 was as follows, with the excep- tion of one small county, which contained about 700 inhabitants : Census of 1860. Accomac 18,586 Elizabeth City . .' J 5,798 Essex 10,469 Gloucester 10,956 James City ., 5,798 King and Queen 10,331 Lancaster 5,151 Matthews 7,071 Middlesex 4,364 Mew Kent 5,584 Northampton 7,832 Northumberland 7,630 Richmond county 6,856 Westmoreland 1 8,282 York '. 4,949 Warwick ." : . , 1,740 Total 121,317 Add to this for county not given 700 Total 122,017 In the counties where this election was held, including all the inhabitants of Elizabeth City county, though there was but one poll opened in that county, there are 32,216 inhabitants. In the counties occupied by the rebel army .at the time this election was held, and under martial law, there were 89,001 inhab- itants. The committee have no means of knowing, other than may be inferred from the foregoing figures, what portion of the 7,986 electors, who cast their votes in that district for governor, reside in the three counties where this election was held, or how many of them resided at the time in the fourteen counties where it was impossible to hold any election. Upon these facts the committee were unable to agree upon any recommenda- tion to the House. They therefore ask to be discharged from further considera- tion of the subject, and report the following, resolution : Resolved, That the Committee of Elections, to whom were referred the credentials of Joseph Segar, claiming a seat in this house'as a representative from the first district in Vir- ginia, be discharged from the further consideration of the subject. The debate in the House was very brief. Mr. Dawes said: * * * * After the proceedings in the House on the first application of the memorialist for a seat in this house, Governor Pierpoint, of Virginia, issued his writ, I believe, following the provisions of the statute of Virginia, calling for an election in this district, and, I think, he also followed the recommendation of the report of the Committee of Elections made to CONTESTED ELECTION CASES IN CONGRESS. 417 this house in the previous ease. The condition of things at the time this election was held was such in that district that, of the seventeen counties, only three were not in the armed occupation of the rebels, and, in one of those counties, Hampton was the only precinct which was entirely clear of the rebels. The writ of election reached the sheriffs in those three counties, and, so far as we know, they gave the notice and the polls were opened in all the precincts of Northampton and Accomac, and at Hampton, in the county of Elizabeth City. One thousand and eighteen votes were cast, of which Joseph Segar received 559, or a majority of the votes cast in those precincts. At the last gubernatorial election 7,986 votes were cast, and at this election 1,018, or about one-eighth of the whole number, and of that one-eighth Mr. Segar had a little more than one-half. The difficulty which the Committee of Elections encountered was thi3 : they have laid down a principle heretofore, and the House has acted upon it in several cases which have been brought before the House, that if the voters of a district had an opportunity to vote, if there was no restraint upon them so that they could vote, he who had the highest numDer of votes is' entitled to a seat, whether the votes be few or whether they be many ; and the question is whether this case came within that rule. Here were only three counties out of seventeen, and although they are large conn- ties, they contain a little over thirty thousand out of the one hundred and twenty-two thousand of all the inhabitants, and there were polled only one-eighth of all the votes. Whether it could be said that in the other fourteen counties, which were in the occupation of the rebel armies, the voters could not go to the polls and express their opinion at all, or not, or whether it could be said that the voters of these three counties, numbering about one thousand, expressed the wish or desire of the voters in the other counties, so nearly and so fairly that under the present state of things in Virginia, it is right or proper to actmit this man to a seat is a question which the committee felt disposed to bring before the House to let them pas3 upon it. * * * * It is the desire of the committee, which I represent upon this occasion, that just at the moment when this district and every other can come so near that deliverance that the House can say in good faith and fairly that he who presents himself at our door as a, representative does represent the Union sentiment of this district, he shall be admitted here to do it. I have stated the facts as they existed at the time of the selection of this individual. If they appear to this house, to constitute such a state of things as I have described, then the committee will be sustained. If it appears to the House that the facts constitute such a state of things that they cannot say that the Union voters of the district have had an opportunity to express their opinion, and he shall be bid to await until these great and stirring events shall nave had their consummation, then, too, the committee will have been sustained. It will be difficult for the House to pass upon this question in any way which shall he against the committee. Mr. Thomas, of Massachusetts. Allow me to state that the applicant brings here the regular certificate ef the governor of Virginia*. The political departments of the government have recognized F. H. Pierpoint as the regular governor of Virginia. All the departments of the government have recognized this as the existing legal government of Virginia. Bringing that certificate, having exactly the same force as that of any other repre- sentatives upon this floor from any State of tbis Union, it is referred to the Committee of Elections. That constitutes prima facie evidence, and the Committee of Elections have reported nothing that controls that certificate. Mr. Dawes. When this matter was referred to the committee there was no such certifi- cate. The certificate has been obtained since. In point of fact, the certificate was issued before the law authorized its issue ; but I do not know that that makes any difference. * * * Mr. Noell. I was remarking that we are not called upon to scrutinize these facts which have been referred to by the chairman of the Committee of Elections, but wo are called upon to determine whether we shall discriminate against one gentleman, or extend that kind of courtesy to him that we extend to all other persons who apply here under similar circumstances. I do not propose to test the right of Mr. Segar to a seat upon this floor upon the merits of the case, which have been referred to by the gentleman from Massachusetts. My proposition is that he be now admitted to his seat and sworn in as a member of this house, as he should have been, in my judgment, in the first instance, precisely as all the rest of the members of the House have been sworn in upon similar credentials. The gentleman and the House will remember that when this case was under consideration before, under a former election, there were no writs of election issued. It was so reported by the committee to the House, and the main point in the objection taken to his being entitled to a seat «pon this floor was that the governor of the State of Virginia had issued no writs of election, in conformity with that provision of the Constitution which requires it to be done in the case of vacancies. But now it is frankly admitted by the chairman of the committee that all the forms and requisitions of law have been complied with, and, so far as we are permitted to look into the case as it is now presented to us, we have no inquiry to make in regard to those facts that go behind and beyond that election, but we are to take th^ H. Mis. Doc. 57 97 418 CONTESTED ELECTION CASES IN CONGRESS. credentials, which the applicant has presented here for our consideration, and determine upon those credentials whethpr he has a prima facie case upon which he should be admitted to a seat upon this floor. As 1 remarked, I do not propose to discuss the question raised in regard to the position of a portion of the territory in this district ; but I would ask the attention of the gentleman to this condition of things ; suppose that his idea should be carried out, what kind of position would this Congress be in to-day ? If a fraction of a congressional district has not the power and capacity to elect a representative upon this floor, has a fraction of the Congress of the United States power to make laws ? Has a fraction of this confederacy a right to elect a President of the United States 1 If this thing of fractions is to be excluded in determining whether an individual holds public office by virtue of an election held in a congressional district, or throughout the nation, I ask the gentleman from Massachusetts by what condition of things do we find onrselves now surrounded ? Sir, if a presidential election was to take place to-moirow there are nine or ten States of this Union in which no election could be held. It matters not that these men are rebels, and that they have made war upon this government. The principle appealed to by the gentleman from Massachusetts applies with equal force to States in a presidential election as to counties in a congressional election. Sir, we have got to go hack to that first elementary principle -in all free republican governments, that the ma- jority of the people who have the ability to get to the polls and vote at an election, who arc loyal to the government and exercise the elective franchise, must determine that election. So long as States remain in the Union as members of the confederacy, we are obliged by the principles involved in our Constitution to treat them in that form. But, sir, I do not propose to discuss that question. "Sufficient unto the day is the evil thereof." I do not ask any gentleman on this floor to commit himself upon that question. We have enough of troubles on our hands now, without anticipating others. I only ask that Mr. Segar, who is the colleague of gentlemen who have been admitted to seats upon this floor under similar circumstances, and under the provisional government of Virginia, which has been recognized by every department of the federal government, shall be treated as those gentlemen have heretofore heen treated — admitted to a seat upon this floor ; and if the House, in its wisdom, thinks it worth while to enter into a future investigation of the merits of his case, it can he done. I will not detain the House longer, and I do not suppose any gentle- man is disposed to discuss the question at length. I offer the following as an amendment to the resolution reported by the Committee of Elections : Resolved, That Joseph Segar be admitted to a seat in this house as a representative from' the first congressional district of Virginia, and that he be now sworn in as such. As I understand that the gentleman from Massachusetts does not desire to be heard, further upon this question, I demand the previous question. The previous question was seconded, and the main question ordered. Mr. Bingham demanded the yeas and nays on the amendment. The yeas and nays were ordered. The question was taken, and it was decided in the affirmative — yeas 71, nays 47. THIRTY-SEVENTH CONGRESS, SECOND SESSION. F. F. Lowe, of California. California elected three representatives in 1861, when a special provision of statute provided that she should be entitled to tioo till a new apportionment should take effect. Claiming that the apportionment under the eighth census took effect at once, Mr. Lowe was returned to Con- gress as a third and additional representative. The committee held that the apportionment would not take effect till on and after the 3d day of March, 1863. IN THE HOUSE OP REPRESENTATIVES, Apkil 14, 1862. Mr. Dawes, from the Committee of Elections, made the following report : .The memorial is based upon the alleged right of California to three represen- tatives in the present Congress. By the apportionment under the eighth census California is entitled to three representatives, and it is claimed by the, memo- rialist that that apportionment applies to the present or thirty seventh Congress. By special provision of statute, enacted July 30, 1852, it was provided that California should have two representatives till a new apportionment should take effect. But that State, believing that the apportionment based on the eighth CONTESTED ELECTION CASES IN CONGRESS. 419' census had already taken effect, did, at its general election, held on the first Wednesday of September last, elect by general ticket three persons to repre- sent her in the present Congress. Two of these persons were admitted to seats and qualified as members on the second day of the'present term. The certifi- cate of the third, the memorialist, was presented on the same day and referred to this committee, as was also his memorial on a subsequent day of the session. These documents are printed in Miscellaneous Documents, the certificate in No. 4, the memorial in No. 19. The Constitution provides that representatives " shall be apportioned among the several States which shall be included within this Union according to their respective numbers ;" and that "the actual enumeration shall be made within three years after the first meeting of Congress, and within every subsequent ten years in such manner as they shall by law direct." The census and ap- portionment thus connected together in the Constitution have been connected together in all subsequent legislation by Congress. It has been the course of legislation, up to the year 1850 and the taking of the seventh census, to provide for the taking of each census by special act, and immediately upon its comple- tion by a like special act to determine the number of representatives, and ap- portion the same among the several States according to such census. But in providing for the taking of the seventh census in ISpQ. Congress undertook to establish a permanent system, both for the taking of all %|ttp censuses and for all future apportionments. — (Statutes at Large, vol. 9, bmS§^28.) That statute requires that the census shall be taken and returned to r '^he Secretary of the In- terior on or before the first day of November next ensuing the twenty-third day of May, 1850, the date of the act. The statute then provides, section 23, " If no other law shall be passed providing for the taking of the eighth or any sub- sequent census of the United States on or before the first day of January of N any year, when, by the Constitution of the United States, any future enumera- « tion of the inhabitants thereof is required to be taken, such census shall in all things be taken and completed according to the provisions of this act." No other provision for the eighth census has been made. The statute then proceeds to provide, before the census is taken, for the then next apportionment to be based upon the census not yet taken, and for all fur- ther apportionments, as follows : Sec. 25. From and after the third day of March, 1853, the House of Representatives shall be composed of two hundred and thirty-three' members, to be apportioned among the several States in the manner directed in the next section of this act. Sec. 26. So soon as the next and each subsequent enumeration of the inhabitants of the several States, directed by the Constitution of the United States to be taken, shall be com- pleted and returned to the office of the Department of the Interior, it shall be the duty of the Secretary of the Interior to ascertain the aggregate representative population of 'the United States, by adding to the whole number of free persons in all the States, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons ; which aggregate population he shall divide by the number, two hundred and thirty- three, and the product of such division, rejecting any fraction of a unit, if any such happen to remain, shall be the ratio or rule of apportionment of representatives among the several States under such enumeration ; and the said Secretary of the Department of the Interior shall then proceed in the same manner to ascertain the representative population of each State, and to divide the whole number of the representative,population of each State by the ratio already determined by him as above directed ; and the product of this last division shall be the number of representatives apportioned to such State under the then last enumeration : Provided, That the loss in the number of members caused by the fractions remaining in the several States, oil the division of the population thereof, shall be compensated for by assign- ing to so many States, having the largest fractions, one additional member each for its frac- tion as may bo necessary to make the whole number of representatives two hundred and thirty-three : And provided also, That if, after the apportionment of the representatives under the next or any subsequent census, a new State or States shall be admitted into the Union, the representative or representatives assigned to such new State or States shall be iu addition to the number of representatives herein above limited ; which excess of representa- tives over two hundred and thirty-three shall only continue until the next succeeding appor- tionment of representatives under the next succeeding census. 420 CONTESTED ELECTION CASES IN CONGRESS. Sec. 27. When the Department of the Interior shall have apportioned the representatives in the manner above directed among the several States under the next or any subsequent enu- meration of the inhabitants of the United States, he shall, as soon as practicable, make out and transmit, under the seal of his office, to the House of Representatives a certificate of the number of members apportioned to each State under the then last enumeration; and shall likewise make out and transmit, without delay, to the executive of each State a certificate, under his seal of office, of the number of members apportioned to such State under such last enumeration. The claim of the memorialist is, that though the statute provides, "section twenty-fifth," that the apportionment based upon the census then about to be taken should take effect from and after the 3d day of March, 18o3.it makes no provision that the next apportionment thereafter shall take effect in ten years from that date, viz: from and after the 3d March, 1863, or with the commence- ment of the thirty-eighth Congress; but having based it upon the census which, it provides shall be completed and returned to the Secretary on or before the 1st day of November, 1860, and having also provided that "as soon as" that census has been so returned, the secretary shall, by a given rule of arithmetic, appor- tion the members among the several States, and shall, "as soon as practicable," transmit a certificate thereof to the House of Representatives, and shall transmit, "without delay," a like certificate to the executive of each State, it follows, as a necessary conclusion of law, that all this is to be done before the 4th of March, 1861, when the thirty-seventh or present Congress commenced; or whether the certificates to the House of Representatives and the several executives were actually made out before the fourth of March following or not. The right of representation based upon that census depends not upon the certificate, but upon the fact of enumeration, which the law provides shall be completed by the firsi of November preceding the commencement of the present Congress. And there- fore it is that the memorialist claims that California has a right to elect three representatives to this Congress, that being the number which said enumeration shows she is entitled to, and that he is consequently entitled to the seat. The claim of the memorialist is based upon a strict and, as it appears to the committee to be, a too narrow construction of the act of 1850. It was the in- tention of that act to establish a system for the taking of the census, and the consequent apportionment of representatives not only for the decade covered by the seventh census and apportionment, but for the eighth and each subsequent one. And the perusal of the statute, as a whole, cannot fail to leave the con- viction that each subsequent census and apportionment should be made precisely as was provided in that statute for those then about to be made. The statute provides, first, that the eighth and any subsequent "census shall, in all things, he taken and completed according to the provisions of this act." It then pro- vides that "so soon as the next (1S50) and each subsequent enumeration of the inhabitants of the United States, directed by the Constitution of the United States to be taken, shall be completed and returned to the office of the Depart- ment of the Interior, it shall be the duty of the Secretary of the Interior " to make the apportionment by the rule already quoted. It is plain, therefore, that the eame law is to apply to the future as to the then present census and apportionment. Now, it was fixed in the twenty-fifth section of the act that the apportionment founded upon the seventh census should take effect "from and after the third day of March, 1853." If, therefore, all future enumerations and apportionments were to be taken and made according to the provisions of that act, it would seem to follow very clearly that the time the apportionment after the eighth census should take effect must correspond to that fixed for the seventh, viz: from and after the third of March, 1863, as that had been fixed to take effect "from and after the third of March, 1853." It is to be observed that there is no time expressly provided in the statute when the eighth census shall be commenced or completed. The statute pro- vides, (section 23,) as has already been quoted:. "If no other law be passed CONTESTED ELECTION CASES IN CONGRESS. 421 providing for the taking of the eighth or any subsequent census of the United States, on or before the first day of January of any year, when, by the Consti- tution of the United States, any future enumeration of the inhabitants thereof is required to be taken, such census shall, in all things, be taken according to the provisions of this act." Now, the memorialist and all others say rightly that, by virtue of this provision, the eighth census was to be taken, commencing on the first day of June and ending on the first day of November, 1860. But they do not find those dates fixed in the statute under examination, or any other. They find in this statute that the seventh census shall be taken, commencing on the first day of June and ending on the first day of November, 18/50 ; and they properly infer that the statute applies to the next census, mutatis mutandis. That is, if the eighth census is to be taken in 1860, the first of June, 1850, and •the first of November, 1850, in the act must be read the first of June and No- vember, 1860, the corresponding time as applied to the next census. It is by no other rule of construction that the memorialist can say that the statute of 1850 requires the census of 1860 to be completed by the first of November of that year. By the same rule will the apportionment based upon this census be found to take effect from and after the third day of March, 1863. Section 25 provides that "from and after the third day of March, 1853, the House of Rep- resentatives shall be composed of 233 members, to be apportioned among the several States in the manner directed in the next section of this act." The next section provides as follows : " So soon as the next and any subsequent enume- ration of the inhabitants of the several States directed by the Constitution of the United States to be taken shall be completed and returned into the office of the Department of the Interior, it shall be the duty of the Secretary of the In- terior to ascertain," &c. It is from the clause "and any subsequent enumera- tion," alone, that the present apportionment has been made. Now, by Applying the rule just stated, if the apportionment based upon the census of 1850 was to take effect in 1853, by virtue of the same provision for apportionment, or that which provides an apportionment based upon the census of 1860, then, mutatis mutandis, the latter must take effect in 1863. Without this rule of construction the apportionment, as well as the census of 1860, upon which it is based, would be without any time fixed for it to go into operation. There seems to be no reason for two different rules. So far as the committee have been able to ascertain from the cotemporaneous history, or the discussions in either house on its passage, or any subsequent criticism of it, till the present case has arisen, the idea never occurred to any one that it provided, in this regard, one rule for the census of 1850 and consequent apportionment, and a different one for any subsequent census and apportionment. ■ On the other hand, there is much reason, if not constitutional obligation, that the rule should be the same for all, and that the last apportionment having been fixed to take effect " from and after the third day of March, 1853," the next should not take effect till ten years thereafter, or from and after the third day of March, 1863. The apportionment must follow and be based upon the census. The Constitution says representatives shall be apportioned- among the several States " according to their respective numbers ;" and to ascertain these numbers the same section provides that " the actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subse- quent term of ten years, in such manner as they shall by law direct." The Constitution evidently contemplated a census only once in ten years, and con- sequently a new apportionment based upon such census only once in ten years. The time when the first census should be taken was not fixed, only it must be " within three years after the first meeting of the Congress of the United States." Now, Congress did provide for taking the first census in 1790, the next in 1800, and in 1810, and in 1820, 1830, 1840, and 1850. So Congress ha9 also pro- vided by legislation, once in everv tp.n vo^, that the apportionment, based 422 CONTESTED ELECTION CASES IN CONGRESS. upon each one of these enumerations, respectively, shall take effect "from and -after the third day of March, 1793," " from and after the 3d day of March, 1803," and from and after the same day in 1813, 1823, .1833, 1843, and 1853. In the absence of express enactment to the contrary, the committee cannot doubt that it was likewise the intention of Congress,, in providing for the eighth census, to provide that it shall be taken in 1860, and that the apportionment based upon it, like all that had preceded it, should take effect in the corresponding year, viz : from and after the 3d of March, 1863. If it be held that apportionments of representatives cannot be made oftener than a federal census is taken, and that the Constitution requires that that shall be taken only once in ten years, then it follows that the apportionment based upon the census of 1860 cannot take effect till, the 4th of March, 1863 ; else the period between the last two ap- portionments would be eight instead of ten years, while the period between all the rest would be ten years. All construction of the constitutional obligation upon Congress to provide by law for the several " enumerations," and the apportionments based upon them, is uniform, and the course of legislation is without any conflict, all uniting in forcing upon the committee the construction they put upon this statute, that its intendment is that the apportionment based upon the census of 1860 shall take effect from and after the 3d of March, 1863. The construction contended for by the memorialist, that this apportionment took effect from and after the 3d of March, 1861, requires that, between the 1st of November, 1860, when the census was by law to be completed and returned to the Secretary of the Interior, and the 3d of March following, the entire work of the Census bureau should be so far completed as to furnish the aggregate of free and slave population in each State, the ascertainment of the ratio and the actual apportionment of the number of representatives to each State, the notifi cation by the Secretary of the Interior of the House of Representatives and the several State executives of the number each State is entitled to, the meeting of the legislatures of each State, and the dividing each State into districts, and the holding of elections for representatives in those several districts. All this must have been done before the 4th of March, 1861, or there could have been no Congress in existence on that day for the President to have called together in extra session, whatever may have been the public exigency. The committee do not say that all this is impossible ; but it must be borne in mind that the legis- latures of many of the States hold no regular sessions between the 1st of No- vember and the 1st of March, and that the time for the election of representa- tives in Congress is fixed previous to the 1st day of November, and in some by the State constitution itself. In point of fact, in several of the States, in accord- ance with their laws and constitutions of long standing, representatives had been elected to the present Congress before the 1st of November, 1860, and, of course, according to the apportionment which took effect " from and after the 3d of March, 1853," eight years only of which had expired on the 3d of March, 1861. In view of all this, which the construction of the statute claimed in behalf of the memorialist requires to be done between the 1st of November and the 4th of March following, this overturning of all the usages of the government from its foundation, the committee ask the question if the makers of this statute intended that this apportionmenfshould take effect from and after the 3d day of March, 1861, would they have failed to have so expressly enacted 1 Would so radical a change have escaped notice in passing its various stages in each house 1 Would it have failed to have provoked opposition from those States upon which it imposed the necessity of calling special sessions of their legislatures, altering .their constitutions and laws ? Or would its authors and advocates have omitted commendation of this new feature in the legislation of the country ? What if, by negligence or accident, the returns which the law requires to be made on the CONTESTED ELECTION CASES IN CONGRESS. 423 first day of November do not, in fact, reach the Secretary of the Interior before the 4th of March following? What will be the condition of things then, if the construction contended for be the true one 1 The nation would be without a Congress, and the States without the power to elect one. It will be seen by a letter from the Secretary of the Interior, which accompanies this report, that the final returns were not received at his department till the 16th day of March, 1861. Can it be held, except on express enactment, that Congress overlooked such a contingency 1 If it be said that the requirements of the statute that the census shall be returned on the "first day of 'November" and that the Secretary shall make the apportionment " so soon as" the census is returned, and shall make out the certificate thereof to the House " as soon as practicable," and to the State executives "without delay," are all express enactments, showing that the apportionment is to take effect on the 4th of March following, rather than two years thereafter, the answer is, that these same enactments apply equally to the apportionment based upon the census of 1850, which, by the express terms of the statute, was not to take effect on the 4th of March following, but two years thereafter, on the 4th of March, 1853. But this Congress has, by positive enactment, declared when, in its opinion, the apportionment based upon the census of 1860 shall take effect. In an act passed only the last month, to modify that apportionment and give to several States therein named a greater number of representatives than the apportion- ment under the statute of 1850 had given them, Congress has expressly enacted that the act shall take effect from and after the third day of March, 1863. The following is a copy of the act : AN ACT fixing the number of the -House of Representatives from and after the third of March, 1863. Be it enacted, Sfc., That from and after the third day of March, eighteen hundred and sixty-three, the number of members of the House of Representatives of the Congress of the United States shall be two hundred and forty-one ; and the eight additional members shall be assigned one each to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Ver- mont, and Rhode Island. This act passed both houses iu its present form without a division, and is therefore a unanimous declaration of the law-making power that the apportion- ment based upon the census of 1860 docs not take effect till "from and after the 3d of March, 1863." There is one consequence of giving effect to the claim of California to be rep- resented in the present Congress according to the apportionment based upon the census of 1860 to which it is proper that attention should be called. If California is entitled to representation in accordance with that apportionment, every other State has the same right. There can be no such thing as one State represented according to one apportionment and under one census, and another State according to some other apportionment based on another census. The whole number of representatives and the number for each State are both fixed by law and by the same law. There cannot be one law for one State and another for another. If, therefore, Californiahas a right to one more representa- tive in this Congress under the new apportionment, Illinois has a right to five more, Iowa to four more, Wisconsin to three- more, some other States to two, and others to one more, and a corresponding number must be retired from other States. Two members now serving in this house from Ohio, one from Ken- tucky, one from Massachusetts, and others from other States, must retire to make room for these new members. Which two of the twenty-one members from Ohio must retire ? No particular two are less elected than their nineteen colleagues. Ohio elected twenty -one, when she was by the new apportionment entitled to but nineteen ; but which two she would have repudiated she has not indicated. The whole twenty-one must therefore retire, and she must elect nineteen anew. So of all other States now represented here in excess of their 424 CONTESTED EJECTION CASES EST CONGRESS. number under the new apportionment. Such an operation would work a disso lution of the present house preparatory to its reorganization under the new ap- portionment, to which California has alone conformed. A construction of the statute which would lead to so serious a result should not be arrived at hastily. California has been misled in this matter by nobody but herself. By a copy of the certificate to her governor, made out by the Secretary of the Interior, and which is annexed to this report, it will be observed that the Secretary notifies her governor that he has apportioned to that State three representatives for the 38th Congress. Although this did not alter her legal rights, it nevertheless furnished her in advance with the construction of the statute by the only person authorized in the first instance to construe it, and which the committee believe to be the only true construction of it. The memorialist urged upon the committee other considerations, for the pur- pose of showing that California was in equity entitled to a third representative, even under thfe apportionment based upon the census of 1850. It never could be ascertained by that census what was the actual number of inhabitants in that State in 1850. A portion of the census papers were accidently burned in the great fire of that year in San Francisco, and were never returned to the Secre- tary of the Interior. Large settlements were omitted altogether from the enu- meration, under the mistaken belief that they fell within the Territory of Ore- gon. The vast extent of territory sparsely settled, in some parts by miners almost hidden among the mountains, and the small remuneration to the mar- shals for this service, were thought very much to corroborate the statement of the marshal and others, that the number returned fell Bhort of the true number by from thirty to fifty per cent. The apportionment based upon the returns actually made gave California but one representative with a fraction. Con- gress, in 1852, before the apportionment took effect, injustice to California, un- dertook to remedy this defect by an act reciting these considerations just stated, and providing that the State should be entitled to two representatives till the next enumeration. The memorialist urged upon the committee that full justice was not done California at that time, and that she was actually entitled to three. The whole vote of the State at the presidential election in 1852 was 74,736. Adopting any ratio between voters and population, or even a much smaller one than is adopted in the older States, and there would have been population enough for three representatives. The State census of 1854, which was only approximate, gave 264,435 — only 14,000 less than enough for three repre- sentatives. The vote of California in 1861 was 118,840, giving evidence of a much larger population than by either apportionment is represented in Con- gress. But all these considerations, though deserving of much weight, if it were the province of the committee to fix an apportionment act, cannot be taken into account by a Committee of Elections seeking to determine who has been actually elected according to the' laws as they exist. The committee recom- mend the adoption of the following resolution : Resolved, That F. F. Lowe is not entitled to a seat in this house as a representative from the State of California in the thirty-seventh Congress. The House agi-eed to the resolution without division. An amendment de- claring Mr. Lowe entitled to the'seat was rejected — ayes 49, nays 69. Note. — Mr. Dawes presented the case to the House, and the report was controverted by- one member, viz., Mr. Phelps, of California. The speeches of Mr. Dawes and Mr. Phelps are in vol. 487 Congressional Globe, pages 19G7 and 1969. THIRTY-SEVENTH CONGRESS, SECOND SESSION.* Foster, of North Carolina. Where there was a total lack of conformity to law, and no pretence of a general participa- tion of the voting population in the election, it was treated as a nullity. CONTESTED ELECTION CASES IN CONGRESS. 425 IN THE HOUSE OF REPRESENTATIVES, June 16, 1862. Mr. Dawes, from the Committee of Elections, made the following report : That they have had the subject-matter of said memorial under consideration, and have fully heard Mr. Foster in support of his claim. No one of the me- morialists has appeared before the committee. As all the evidence in support of this claim consists of the aforesaid memorial, which is printed in Mis. Doc. No. 53 ; a copy of what purported to be a memorial of thirty citizens of Carte- ret county, " ratifying and approving" the election of the claimant ; a copy of a resolve in favor of the same claim, purporting to have been adopted by citi- zens of Craven county, which latter papers accompany this report, and what was said by Mr. Foster himself in support of his own claim, the committee deemed it best that the House should have the benefit of the latter also. They therefore employed a stenographer ; and all that Mr. Foster offered to the com- mittee in support of his claim accompanies this report. Therefore the entire claim rests upon what may be found in said Mis. Doc. No. 53, and the papers accompanying this report. It appeared so plain to the committee that the me- morialists and Mr. Foster himself had failed to show the slightest foundation for this claim that nothing more than a brief statement of it is deemed neces- sary. This is the fourth time that Mr. Foster has claimed to have been elected a representative to the thirty-seventh Congress from the State of North Caro- lina — twice from the first and twice from the second district. On the eigh- teenth day of December last the House adopted without division the following resolution : Resolved, That Charles Henry Foster is not entitled to a seat in this house as a repre- sentative in the thirty-seventh Congress, either from the first or from the second district of North Carolina. The present claim is based entirely upon proceedings which have transpired since that date. Those proceedings consist of what purports to be a poll-list of eighty-one votes cast for Mr. Foster at Chickamacomico precinct on the 16th February last, supported by a cojby of a paper purporting to be signed by thirty citizens of Carteret county, " ratifying and approving" said election, and a copy of a resolution of like purport, supposed to have been adopted by some citizens — how many it is not known — of Craven county. The other voting presented to the committee were proceedings upon which a former election was claimed, which claim was unanimously rejected by the House. • The second district of North Carolina is composed of the counties of Wayne, Edgecomb, Green, Pitt, Lenoir, Jones, Onslow, Carteret, Craven, Beaufort, and Hyde, and usually casts about nine thousand votes. The regular day of elec- tion was the first Thursday in August, 1861. There was no election for mem- bers of Congress held on that day, because the whole State was at that time in the armed occupation of rebels. Since then some portions of it have been re- claimed and the authority of the government asserted therein. The single voting place of Chickamacomico, where alone was any evidence of voting at this election, is in that part of Hyde county which is called Hatteras Banks. The claimant admits that voting in any other precinct in the district would be impossible, because every other precinct was either in the armed occupation of the rebels or under the control of our own army, whose commanding general had forbidden political meetings altogether. And even there the claimant knew of none who would have voted if an opportunity had offered. This voting at Chickamacomico was without the slightest authority of law. No election had been called. No writ of election had been issued. There was no governor of the State, provisional, military, or of any other character, but the rebel gov- ernor, to issue one. 426 CONTESTED ELECTION CASES IN CONGRESS. * The memorial of thirty names, purporting to be of citizens of Carteret county ratifying and approving of such an election, was of an anomalous character. The paper presented to the House was a copy. The committee called for the original, and when produced it was found to be, except the names, in the hand- writing of the claimant himself, to be without date, and the names themselves to be written, many of them, in one handwriting, though not that of the claim- ant. His account of this paper was, that it was prepared by him for, and handed to the man whose name was first upon it ; that it was returned to him some time in May of the present year by the editor of the Newbern Progress, who appeared to have been a Massachusetts volunteer, detailed from the 25th regiment of that State to edit a paper at Newbern'. In what manner the names were obtained upon it the claimant did not know. The original of the resolve, purporting to have come from citizens of Craven county, the committee have never seen, and they are entirely ignorant of the number, character, or resi- dence of the persons who adopted it. This is the whole of the case. It is difficult to understand how any one can, seriously and in good faith, claim this to be an election of a representative to the thirty-seventh Congress. The committee have not deemed it necessary to add argument to a simple statement of the facts. They unanimously recom- mend the adoption of the following resolution : Resolved, That Charles Henry Foster is not entitled to a seat in this house as a repre- sentative from the second district in North Carolina. The House adopted the reselution without division or debate. THIRTY-SEVENTH CONGRESS, SECOND SESSION. Joseph Segar, of Virginia. The Wheeling convention having provided for an election to Congress while the legislature was in session held that its functions ceased the moment that it had inaugurated the new government, and that it was the province of the legislature to provide for the election, the constitution not fixing the day. "Where there was a want of conformity to law in conducting the election, and a large por- tion of the district was in armed occupation by the rebels so that but one poll was open, held that the election was not valid. # IN THE HOUSE OF REPRESENTATIVES, January 20, 1862. Mr. Dawes, from the Committee of Elections, made the following report : That they have had the subject-matter of said memorial under consideration, and have considered such testimony and such views in its support as the memo- rialists desired to offer. An argument addressed to the committee, through its chairman, may be found, printed by order of theHouse, in Mis. Doc. No. 29, of the present session. The committee find the following facts : A ^convention assem- bled at Wheeling, in the State of Virginia, on the 11th of June last, in which were represented, it is believed, thirty-nine counties of the State, situate in what is known as Western Virginia. This convention adopted on the 19th of June "an ordinance for the reorganization of the State government," after having declared that, because of the treasonable practices and purposes of the State con- vention lately held in Eichmond, and of the executive of the State in connexion therewith, " the offices of all who adhere to the said convention and executive, whether legislative, executive, or judicial, are vacated." By the same ordinance a legislature, or general assembly, for the State of Virginia was created, and .required to " assemble in the city of Wheeling on the first day of July, and CONTESTED ELECTION CASES IN CONGEESS. 427 proceed to organize themselves as prescribed by existing laws iu their respective branches." Said convention subsequently elected a governor for the State of "Virginia, who still holds the office thus conferred .upon him. The legislature thus created assembled as required, and passed many enact- ments for the whole State of Virginia, elected two United States senators, who were admitted to seats in the Senate, and assumed all the functions of the general assembly of Virginia under its pre-existing constitution and laws. The convention which created and set in motion this new government did not, however, dissolve itself upon the assumption of the several functions of govern- ment by the executive officers and general assembly which, in the exercise of provisional powers, it had itself brought into being, but continued to hold its meeting after the assembling of the legislature, and to share with it in ordinary legislation for the whole State. The legislature was in session till the 24th of July, and how much longer the committee are not informed. The convention Was in session on the 20th of August, and on that da]^ passed an ordinance provid- ing for the election of representatives in Congress in each district where, from any cause, such election was not held on the fourth Thursday in May last, the day provided by law for such election, and also " in the eleventh district, where a vacancy now exists, an election for such representative shall be held on the fourth Tuesday in October next, which shall be conducted, and the result ascer- tained, declared, and certified, in the manner directed in the second edition of the Code of Virginia." The governor thereupon, on the 12th day of October, issued the following proclamation : THE COMMONWEALTH OF VIRGINIA. Executive Department, Wheeling, October 12, 1861. To the people of Virginia : Whereas several of the congressional districts of this State are unrepresented in the House of Representatives in the Congress of the United States, by reason of failure to elect on the fourth Thursday in May last, caused by armed men in rebellion against the Constitution and laws of the United States and of this State ; and it being the right of the loyal inhab- itants in each district to be represented in said House by a representative of their own appoint- ing, the convention of Virginia, on the 20th day of August, 1861, passed an ordinance directing an election to be held on the fourth Thursday in October instant, (24th,) in every district of the State so unrepresented and where vacancies exist. It is further made the law, by virtue of the ordinance aforesaid, that any person who is prevented from attending such election, by reason of the occupation of his own county by armed men in hostility to the government, that such voter may vote anywhere in his congressional district. It is further ordained that the election shall be conducted, and the result ascertained, declared, and certi- fied, in the manner directed in the Code of Virginia of the edition of 1860. By the 11th section of chapter 7th of that code any two freeholders may hold an election directed by law at any place of voting, if no commissioner to superintend the same appears and is willing to act, or if no commissioner have been appointed to hold the election. Now, therefore, in consideration of the premises, I, Francis H. Pierpoint, governor of the Commonwealth of Virginia, hereby entreat the loyal voters of this State to hold elections in their several districts on the day above mentioned, to the end that the people may be represented, the principle of representative government sustained, and the State have her due weight in the national legislature. F. H. PIERPOINT. It is by virtue of an alleged election held in conformity with this proclama- tion that the memorialist claims the seat. The only evidence of his election, presented by the memorialist on the first day of the present session when he applied for admission, was the following certificate : In conformity with the proclamation of Francis H. Pierpoint, governor of Virginia, a copy of which is herewith attached, an election was duly held for a representative in the first congressional district at Hampton, Elizabeth City county, State of Virginia, on Thursday, the 24th day of October, 1861. The following is a duplicate copy of the return of the votes cast at said election : 428 CONTESTED ELECTION CASES IN CONGRESS. Poll opened at Hampton, Elizabeth City county, Virginia, for the election of member of Congress from the first congressional district of Virginia, October 24, 1831. Candidates. Names of voters. Candidates. Segar. Jacobs. Segar. Jacobs. J. S. Moody K. Whiting Harvey Bobbins William* Stacey 1 1 1 1 1 1 '"' 1 1 1 1 1 1 1 .4 Jacob Miller James E. Howell.. S. Kelly 1 1 1 1 3 1 1 1 1 ] 1 3 Willis Wilson William Bartlett... Solomon D. Mystei Samuel Watson. .. John MeCunn Theodore Tennis . . . Thomas Dobbins. . . Henry House Henry Whitaker John Sho ward Milton E. Muzy I certify that the above is a correct register of the votes polled at Hampton, Virginia, this twenty fourth (24th) dav of October, 1863. ALEX. WOEEALL, Clerk. We, the undersigned, freeholders of Elizabeth City county, State of Virginia, do hereby certify that the above election was conducted agreeably to the call of F. H. Pierpoint, governor of the State of Virginia, by proclamation issued the twelfth (12th) day of October, A. D. 1861. THOMAS DOBBINS. T. S. TENNIS. I hereby certify that the above Thomas Dobbins and Theodore S. Tennis were duly sworn by me as judges of election, held at Hampton, Elizabeth City county, State of Virginia, this twenty-fourth (24th) day of October, 1861. CAPT. N. M. BUELEIGH, Provost Marshal at Camp Hamilton. Witness : William Bartlett, Teller. Upon a subsequent day of the session the memorialist presented the follow- ing proclamation of the governor, declaring him elected : BY THE GOVEENOE.— A PEOCLAMATION. Whereas the people' of Virginia, in convention assembled at Wheeling, on the 20th day of August, 1861, did ordain "that in every congressional district where, from any cause, an election of representative in the Congress of the United States was not held on the fourth Thursday in May last, an election for such representative shall be held on the fourth Thurs- day in October next, which shall be conducted, and the result ascertained, and certified, in the manner directed in the second edition of the Code of Virginia : " And whereas, in pursuance of said ordinance, an election was hold in the first congres- sional district of Virginia, composed of the counties of Middlesex, Westmoreland, Eichmond, Essex, Northumberland, King and Queen, Lancaster, Gloucester, Matthews, James City, the City of Williamsburg, New Kent, York, Warwick, Northampton, Accomac, and Eliza- beth City, on the twenty-fourth day of October, 1861, at which a majority of the votes cast were given for Joseph Segar, esq.: Now, therefore, I, Francis H. Pierpoint, governor of the Commonwealth of Virginia, do declare, by this my proclamation, the said Joseph Segar, esq., duly elected to represent the first congressional district of Virginia in the thirty-seventh Congress of the United States of America. CONTESTED ELECTION CASES IN CONGRESS. 429 Given under my hand and the great seal of the Commonwealth, at Wheeling, this 20th day of December, in the year of our Lord one thousand eight hundred and sixty-one, fL. S.] and in the eighty-sixth year of the Commonwealth. FRANCIS H. PIERPOINT. By the governor : L. A. Hagans, Secretary of the Cammonteealllt. He also, at the same time, presented the proceedings of a meeting held in Chincoteague Island, in said district, on the 10th of December, in which one hundred and thirty-six citizens expressed their preference for him as a repre- sentative in Congress by formally voting for him on that day. For this last proceeding, however, he claimed only the force of an expression of opinion. These last-mentioned papers were also referred to the committee. The memo- rialist bases his claim entirely upon the twenty-five votes cast for him at Hamp- ton on the 24th day of October, according to the certificate of the freeholders already quoted. He asserts his claim to be a strictly legal one. That the votes cast for him were cast by legal voters in all respects in conformity with law ; and that the only inquiry open to the committee or the House, beyond this conformity with the law, is, did the memorialist receive more votes than any other person? And it is not to be. inquired how many votes were cast except to settle the question of a majority, for that all who do not vote are. pre- sumed to assent. The committee have been led to investigate this claim of legality. The whole authority for this election is the ordinance of the Wheeling convention passed August 20. Assuming that the proceedings of that convention, and of the legislature and executive created by it, have ripened into a State government, legal in all respects, still the question arises, was it one of the functions of that convention to provide for the tijne, place, and manner of electing representatives in Congress, especially after the legislature had assembled ] The purpose of that convention was the creation of a new State government. The only basis ■upon which it rests is necessity. A new government must begin somewhere, and there must be somebody to make it. As necessity was the foundation, so also it was the limit of the power called into being for the sole purpose of inaugurating a new government. It could do anything necessary to carry out that purpose, and when that was done it could do no more. Its functions ceased the moment the new govern- ment took on form and life. The two cannot, in the nature of things, exist and move pari passu. Now, long before this ordinance had passed the convention, there was in existence a governor and a legislature having all the powers that a governor and legislature could have in Virginia — that is, all the powers which the constitution of Virginia clothes a governor and legislature with, not in con- flict with the Constitution of the United States. Now, this latter instrument provides (art. 1, sec. 4) that "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each -State by the legis- lature thereof." It is a legislative act. It is a late. And the constitution of Virginia provides (art. 3, sec. 10) that "all laws shall originate in the house of delegates, to be approved or rejected by the senate, or to be amended with the consent of the house of delegates." Whatever necessity may require when there is no house of delegates, when there is one, all laws shall originate in it. They cannot originate anywhere else. If the time had been fixed in the con- stitution of the State, recognized and acquiesced in by the legislature, it may be said to be the act of the law-making power — a legislative act. But this time and manner were not fixed in the organic act, nor by the legislature, but by the convention assuming legislative functions in the presence of the legislature itself. Again : the ordinance itself proposes to conform this election to the Code of Virginia. It "shall be conducted, and the result ascertained, declared, and 430 CONTESTED ELECTION CASES IN CONGRESS. certified in the manner directed in the second edition of the Code of Virginia." Has the election under consideration been conducted in all respects according to the requirements of the Virginia code? Title 3, chapter 7, section 11, of that code provides for elections to fill vacancies in Congress, and enacts that they "shall be superintended and held by the same officers, under the same penalties, and subject to the same regulations as are prescribed for the general elections." Section 12 of the same chapter provides that "a writ of election shall be directed to the sheriff or sergeant, of the county or corporation for which the election is to be held ; or if the election is to be held for an election district, or to fill a vacancy in the Senate or in Congress, to the several sheriffs and sergeants of the counties and corporations which, or any parts of which, are included in the district. It shall prescribe the day of election, (to be the same throughout the district,) and may fix a day on which the officers conduct- ing the election are to meet to make returns, not later than that fixed by law in the case of a regular election." Now, in the present case there is nothing which answers to a writ of election. The only paper originating this election is the proclamation of the governor, of October 12, already copied into this report. This proclamation can be con- sidered in no sense a writ of election. It commands nobody — no authorized officer — to hold an election. It only "entreats the loyal voters" to hold an election, and is addressed, not to sheriffs, &c, but "to the people of Virginia." This is no technical defect. The 13th section of the same chapter of the code provides something for. the several officers to whom the writ is directed to do before the election can be held. That section is in these words : Each officer to whom a writ of election is directed shall give notice thereof, and of the time of the election, by advertisement at four of the most suitable places in his county or corpo- ration. , The reason of this enactment is manifest. The law, which all are presumed to know, does not fix the time of holding a special election. It is done by the governor in his "writ of election," directed. to the sheriff. This provision of law is necessary to insure notoriety, and it is made the duty of the sheriff, to whom the writ is directed, to do it in a particular manner. Now, this procla- mation, if a writ, is directed to no sheriff. The memorialist stated to the committee with great frankness that there was no election held at any other precinct, in the district, except Hampton, for the reason that all other parts of the district were at the time in possession of the rebel forces, and that notice, even of the election, could not pass beyond the enemy's lines to a single precinct in the district. He stated, further, that he understood that the notice reached Hampton through the agency of a gentle- man, then stopping in this city, who at one time contemplated being a candidate, and who, observing the proclamation published in the National Intelligencer, communicated it by letter to some gentleman in Hampton. These statements, taken to be facts by the committee, show conclusively a failure to comply with the provisions of that section of the Virginia code touching notice to the electors of the district, to which attention has already been called. There are other provisions of the Code of Virginia, respecting the returns of votes and duties of certifying officers, which have been wholly neglected in this case. — (See title 3, ch. 8, sections 3 and 4.) But these latter are matters of form merely, to which the committee give very little weight in the conclusions to which they have arrived. It is apparent, from what has been already said, that, if the claim of the me- morialist rests exclusively upon a strict conformity with all the provisions of law,, it cannot be maintained. But the committee do not desire to rest their conclusions upon so narrow a basis. If the Union voters of the district had had an opportunity to choose a representative— if there had been no armed occupation of the district by rebels, CONTESTED ELECTION CASES IN CONGRESS. 431 so that polls could have been opened at the various voting places in the district, and all who desired could have deposited their ballots, and had done so in con- formity with the provisions of law, so far as the disturbed and abnormal condition of things would permit, the committee would have sought some way to give effect to such election. But enough of the factd surrounding this election have already been stated to show that such is not the case. There was but one sin- gle poll in the whole district opened, and but twenty-five votes cast. The reason why there were no other polls opened or more votes cast cannot be better expressed than by the three freeholders themselves who certify to this election. This is their language : And we dd further certify that there was no poll opened at any other precinct in said county ; and that so far as we can learn and confidently believe, there was no poll opened or election held for member of Congress in any other county or city or town of said first con- gressional district, owing to the fact that all the other counties and election precincts of said congressional district were, on the 24th day of October last, within the lines and under the influence and control of the seceding and rebel States. This state of things is no fault of the memorialist or the Union voters of the district ; but it did exist on the day of this election. How can it be made to appear, then, that the memorialist is the choice of the district, or that if an op- portunity had existed an overwhelming majority of votes would not have been cast against him 1 In what sense can it be said that those who did not vote are to be presumed to acquiesce, when they neither had the opportunity to vote, nor the knowledge that voting was going on ? Acquiescence presumes liberty to protest. In this instance that liberty did not exist. The memorialist laid before the committee much gratifying evidence of the esteem in which he is held in the district, and the testimonials of patriotic gentlemen to his great sacrifices in behalf of the Union cause, and to the belief that be would be most acceptable to the Union voters of the district as their representative ; but this testimony, however valuable to the memorialist personally, is not evidence of an election, and was not offered as such, but rather at the request of the committee itself. In conclusion, the committee are, for the foregoing reasons, of opinion that the memorialist was not, by virtue of the votes cast for him at Hampton on the 24th of October last, elected a representative to this Congress from the first dis- trict in Virginia, and they accordingly recommend the passage of the following resolution : Resolved, That Joseph Segar is not entitled to a seat in this house as a representative in the 37th Congress from the first district in Virginia. Mr. Dawks opened the debate in the House with the subjoined correction of the report : Mr. Dawes. Mr. Speaker, I desire to make two corrections in the report. At the hear- ing before the committee, the gentleman claiming the seat was unable to furnish the committee with the latest edition of the Code of Virginia, and the committee were at that time unable to possess themselves of it. It was his belief that the election laws of Virginia had not been materially changed from the code of 1849. In the belief that the election laws of Virginia conformed to the code of 1849, the committee have recited them as there found in the report. Since the report was made, however, the committee have been enabled to possess themselves of the edition of the laws of Virginia published in i860, and find that there are two slight inaccuracies in the' report in consequence of using the other edition. They do not, however, materially affect the conclusion to which the committee came ; but for the sake of perfect accuracy they ought to be mentioned. The committee incidentally remark in their report that the constitution of Virginia pro- vides that all bills shall originate in the lower house of the legislature. That anomalous provision of the constitution of Virginia has since been changed, and now bills may originate in either house. Further, the committee, in reciting a section of the statute of Virginia re- quiring notices to voters in cases of all special elections, recited the section which they found in the old statute, which requires that the sheriff or sergeant, on receiving the writ of election from the governor, shall give four days' notice thereof to the voters of his precinct and throughout the district. It has been further, and with more care, provided in subsequent legislation that not only shall the sheriff or sergeant give four days' notice, but that he shall 432 CONTESTED ELECTION CASES IN CONGRESS. give ten days' notice of election in the holding of every special election for member of Con- gress, and that he shall not only give that notice in four places, as was originally provided, but that he shall give it at every precinct throughout the district. I will read the law as it now stands : , "Each officer to whom a writ of election is directed shall, at least ten days before such election, give notice thereof, and of the time of the election, by advertisement, at each place of voting in his county or corporation. " In point of fact, as is stated in the report, there was no notice of this election at any other point in the whole district, except at this place, where this one poll was opened ; and it is stated as a reason, that notice was impossible at any other precinct in the district, be- cause every other precinct in the district was in the armed occupation of the rebels. Mr. Segar argued his own case at length. The subjoined extracts are from his speech : There was, a little more than half a year ago, an extra session of Congress held at the Capitol. A Mr. Thayer had been returned from the State of Oregon, and was admitted as a member of this house. Mr. Shiel, my friend, who now occupies a seat here as the mem- ber from that State, contested the seat of the sitting member. Mr. Thayer came hither elected at an election called by the ordinary legislature of Oregon. Mr. Shiel contested under an election ordered by the convention of Oregon. It was decided by both the committee and the House that Mr. Shiel was legally entitled to the seat ; that the previous election under the act of the convention of Oregon superseded the election under the act of the legislature of Oregon. Mr. Shiel's case is identically the same as my own. I come here, as Mr. Shiel did, under an election ordered not by the ordinary legislature of Virginia, but by the highest legislative authority recognized in the land — by the people in convention assembled. I claim a seat from the high gift of the people of Virginia, who were acting in their sovereign capacity, under a convention of the people, which is superior in character to all other legislatures ever held or that could be held within her limits. Sir, that is my case precisely. My case and the case of Mr. Shiel are as parallel as mathematical parallel lines. I challenge my friend from Massachusetts [Mr. Dawes] to show the slightest, the faintest, the least want of anal- ogy between the two cases. But I know very well how the legal ingenuity of the gentleman from Massachusetts will essay to get over this difficulty in his way. He will say that the time and place for holding the election in the case of Mr. Shiel were fixed by the constitution of Oregon ; that in that case it was a constitutional provision. In reply, I have this to say : if the power of a con- vention is so great that it can absolutely fix the time and place of election for all time, I wish to know whether it may not, at least, exercise the power of ordering at least a single elec- tion, as was done in my case. I submit this point for the gentleman's especial consideration. Agar n: I come now, Mr. Speaker, to another point in this case. I brought with me here prima facie evidence of my title to this seat, and that prima facie evidence has not been disproved. Now, I admit the right of the House to judge of the qualifications and returns of its members ; but I presume that it will not be contended by the gentleman from Massachusetts [Mr. Dawes] that this power can be arbitrarily exercised. This house has itself a code of parliamentary law upon the subject, which is binding on this house itself and upon its committees. The House has fixed the whole law of election from 1794 down to the present time, and among the principles settled in that election code is this: that every man who comes here claiming a seat upon this floor, and presenting prima facie evidence of title to that seat, must be sworn in ; and on this principle I ought to have been sworn in the very first day of the session. I presume that law will not be questioned. I will read to the House a simple extract from a celebrated case, which settles the principle I have named. I read from the case of Bassett »s. Bayley, which will be found on page 5J55 of the volume of Contested Election Cases : "It is urged, on the other hand, by the sitting member, that, until disproved, the officers' return who conducted the election ought to be respected as prima facie evidence of the le- gality of the proceedings, and the committee are unanimously of this opinion." There is a law laid down, "as plain as a pike-staff," as they say in my country, that every man who comes here with prima facie evidence of title is entitled to his seat until the re- turn of the State officers is controverted and disproved ; and if the chairman of the Com- mittee of Elections can cite me to one solitary case in which a gentleman coming here and presenting the return of the returning officers of his State has not been allowed to take the oath and his seat, I will give the question up. There is no such case. The question, then, comes up : Have I the return of the returning officers of my State ? I will state to the House that the officers in Virginia authorized by law to make the returns in elections, and deliver to the candidate the evidence of his election, are the commissioners who conduct the election at the courthouses. This is not disputed. Sir, I have that certificate ; I have the return prescribed by the laws of Virginia, and recognized in the proclamation of Governor Pierpoint ; I have the return of the two freeholders who acted as commissioners j no commissioners ap- CONTESTED ELECTION CASES IN CONGRESS. 433 E earing to open the polls, the law provides that any two freeholders may open the p6lls and old an election. These two freeholders did open a poll ; they took the poll according to law, and they certify the result according to law. I have here that return. My friend from Mas- sachusetts has not done me the service to put that return in his report. I know that no in- justice was intended, hut it is a little singular that in his report he does not emhrace the re- turn, which is the gist of the whole thing. Its omission throws a doubt and darkness over the case, which will be utterly dispelled when the members of the House come to examine the return. I will read the conclusion of it only. The officers of the election, after stating the facts of the case, which are set forth in the report of the committee, among others, that the rest of the district was occupied by the army of the rebels, and therefore no election could be" held elsewhere than at Hampton, concludo their certificate in these words : ' ' And we do further certify that at the election held in pursuance of the proclamation afore- said, at Hampton, on this 24th of October, 1861, in the said county of Elizabeth City, which is one of the counties composing the first congressional district of the State of Virginia, Joseph Segar, esq., having received all the votes polled, was duly elected to represent the said first district in the Congress of the United States. "Given under our hands and seals this 29th day of .October, 18G1. "ALEXANDER WORRALL. [seal.] " THOMAS DOBBINS. [seal.] "T. S. TENNIS. [seal.]" This return is in^the very words prescribed by the act of assembly. Mr. Noell said: * * * * A convention of the people of a State having authority not only to make rules of action which are binding upon the people of a State, but also authority to de- stroy or build up the ordinary legislative power of a State, is, within the meaning of the Constitution, and according to the construction I give it, a legislature in the strict sense of the term, both in the letter and spirit of that instrument. It will be remarked that the Constitution of the United States does not undertake to define what shall be the character of the law-making powers of the States. Nowhere in the Con- stitution can a letter or word be found by which that instrument undertakes to limit or pre- scribe to the State governments the character and forms of their legal legislation. When a convention, selected by the people of the State, meets, they have the right to make not only organic law£ which shall control the action of the legislature created by the instrument, which we call a constitution, but they have the right to make laws directly bearing upon in- dividuals ; and if the people of a State choose to do so, they could dispense entirely with the ordinary legislature, and this original, elementary convention has the power and right to make all laws governing them in their social and public and private relations. Considering the clause of the Constitution in this light — and I think that is the proper con- struction to be given to it — the men who framed that instrument intended, as-it was said in the report of the. committee in the Oregon contested election case, to intrust to any regularly constituted law-making power, whether a convention of the people, or the ordinary legisla- ture, the right to prescribe the tirne and place of holding^ congressional elections. The mis- apprehension upon that point arises from the failure to consider this clause of the Constitu- tion, with reference to the elementary proposition- that the Constitution does not undertake to say that the general assembly of Virginia shall prescribe the time and place of holding elec- tions; that it does not undertake to say that the Senate and House of Representatives of Virginia shall perforin that duty, but only declares that the legislature of Virginia shall do this thing. And what is the legislature of Virginia is the only question we are called upon, to inquire into. The convention of the people, then; held at Wheeling, having the power to prescribe rules of action — having the right not only to make laws, but to create and destroy the ordinary legislative power of a State, undertook to make an -original provision fixing the time and place of holding this congressional election ; and, according to the construction I give to this clause of the Constitution, that law is valid and binding upon the people of Virginia and upon this Congress. The next inquiry to which we are to address ourselves, then, is this : have the people of that congressional district, and the authorities of ths provisional government of Virginia, as established by the Wheeling convention, complied with the requirements of that ordinance ? It is necessary for us to examine the phraseology of that ordinance ; and I shall call the at- tention of the House to the peculiar language used in it with reference to the election now under consideration, and to another flection ordered by the same ordinance. The first section of that ordinance is as follows :_ "In every congressional district of the State where, from any cause, an election of a rep- resentative in the Congress of the United States was not held on the fourth Thursday in May last, (and in the eleventh district where a verdict now exists,) an election for such represen- tative shall be held on the fourth Thursday in October next, which shall be conducted, and the result ascertained, declared, and certified in the manner directed in the second edition of the Code of Virginia." 434 CONTESTED ELECTION CASES IN CONGRESS. What is the meaning of that ordinance? It declares that in each congressional district in that State where an election has not been held at the time previously fixed by the laws of Virginia, and in the eleventh district where a vacancy exists, the election shall be held at a certain time and place. Mark the distinction which the convention itself makes between the election jn the congressional district where a vacancy existed by the election of Mr. Carlile to the Senate, and the other congressional districts in the States where the election was to take place as an original election. Mr. Worcester. I would ask the.f entlemanif the people of the first congressional district of Virginia were ever represented in the Wheeling convention at all ? Mr. Noell. I am not informed on that point ; but I do not consider it material whether fhey were or were not. , Mr. Worcester. I understand that they were not. Mr. Noell. It was their misfortune, perhaps, and not their fault. Now, sir, this ordi- nance was adopted in the month of August, and in conformity with that ordinance the governor of the provisional government of Virginia — already recognized as a valid constitu- tional government by this house, by the Senate, and by eveiy department of the govern- ment — issued his proclamation for the holding of an election at the time and places indicated in this ordinance. An objection has been made here that no writ of election was issued, and that no notice was given of the time and place of election. Now, I wish particularly to direct the attention of the House to the principle involved in that matter. The clause of the statute of Virginia which has been read to the distinguished chairman of (he Committee of Elections refers only to special elections to fill vacancies. The times and places of holding such elections are to be fixed by the governor, and consequently, the times and places not being fixed by any law, notice is required, in order that the people may be informed that such an election is to occur, and at that time. What is the principle involved ? Every man in the State is presumed to know and to have notice of all the public laws of that State ; but when you come to hold a special election at a time not fixed- by any public law, the presumption does not exist, and hence the State of Virginia, and all other States, have required that, in such cases, the executive of the State shall issue his writ of election, and that these ministerial officers shall give these notices for the reason that there is nothing in the public laws of the State to notify the people that they will be called upon to exercise the privilege of voting at the time of the election. When we come to consider the statute in this light, the whole objection falls to the ground. What is the necessity of giving the people notice of a fact of which they, in the contemplation of law, have already notice ? The proclamation of the governor was notice to all the world within the limits where his jurisdiction extended. The ordinance of convention adopted at Wheeling in August became a part of the public organic law of the State, and was notice to every man within the State. But, sir, the citizens of my State have had some experience in these matters!. I presume gentlemen from the northern States do not so well understand the necessity that devolves upon the loyal citizens of some of the border States to reach ends by means such as were resorted to in this case ; but we who come from Missouri have had some experience in this matter. An attempt was made by ai secessionist legislature and traitorous governor to take our State out of the Union, and a convention was called for that express purpose. That con- vention met in the spring of the year, considered the question, and decided to remain loyal to the Union. The same secession legislature, called together by the traitorous governor, made an attempt to carry the State out of the Union, in spite of the action of the convention. They passed a bill, known as Caleb Jackson's military bill, by which they provided that persons in the military service of the State should not take the oath to suppoit the Constitu- tion of the United States, and made other provisions that would enable the governor to use the whole military power of the State against the authority of the United States. Our con- vention was still in existence, though not in session. It was convened by its president, and met in the month of July. When the convention met, it deposed the traitor governor, it deposed that legislature, and it replaced the military bill, ana other odious measures that had been adopted by the secession legislature. Now, when the legislature was thus deposed, there was no other constitutional legislative body existing in the State of Missouri except the convention ; and the convention went on to pass laws precisely like an ordinary legislature. It repealed the military bill. Why ? Because that bill was an obstacle in their way in accomplishing the object for which they had assembled, and that was to retain Missouri in the Union as one of the States of the Union. They set aside the traitorous governor and legislature of the State; they set aside that treasonable work, and went to work to put Missouri in her proper and true position. It is to that policy on the part of her convention that we are indebted to the loyal position of Missouri this day. So, when the convention met at Wheeling, they found that public men at Richmond had inaugurated the same system, had voted the State of Virginia out of the Union, and were endeavoring to carry it out at the point of the bayonet. It was necessary for the convention to organize some provisional government loyal to the Union, and that would remain in connexion with this government, and carry out the purposes for which the State became part of this great confederacy. What did they do ? They were not, as the CONTESTED ELECTION CASES IN CONGRESS. 435 gentleman from Massachusetts says in his report, called together there for the sole purpose of organizing a provisional government. A State exists only because it is a member of the Union, and not outside of the Union. They were there for another and a higher purpose, and that was to organize a provisional government, and keep up the connexion between the State of Virginia and this general government of ours. That was the object ; and one of the instrumentalities necessary to effect that object was to bring about a connexion between the federal government and that provisional government by being represented in this house and in the Senate. They adopted proper and legitimate means to accomplish that purpose. They provided, by an ordinance, for the election of members of Congress. Something is said in the report with regard to the omission of the legislature, though still in existence, to provide for an election ot members of Congress. The provisional legislature did not pro- vide for it. The convention, finding this omission,' went on and provided for it ; and through that provision the members now upon this floor from Virginia obtained their seats here. The next point in the case, Mr. Speaker, is the fact that most of the counties in this con- gressional district were occupied by hostile forces, and in consequence thereof the great body of the people had no opportunity to get to the polls. Now, I agree with the distin- guished chairman of the Committee of Elections that a great principle is involved in this question, and I agree with him that it is important that we should decide it rightly, because it will be meeting us hereafter. The principle involved here lies at the foundation of our government ; it is the principle upon which our government originated ; the right to repre- sentation where men were taxed was the principle upon which our Revolution was fought. The colonies were taxed by the British Parliament, and were denied the privilege of being represented in that Parliament, and upon that great fundamental principle our government started out, and it has been conducted upon that principle ever since; and, sir, when you deny to the loyal men of a congressional district in any State in this Union — be they few or many— the privilege of having a voice upon this floor to be heard upon public measures, and particularly upon the tax bills which are to operate upon them, as well as upon all the rest of the citizens of the United States, you strike down the great fundamental principle for which our fathers fought in the Revolution. I say you undertake to deny them the privilege of being heard on this floor, and do so on the ground that, a portion of their terri- tory being occupied by hostile forces, they were unable to go to the polls and hold an elec- tion, you strike down- that great fundamental principle. *#**# ### Mr. Crittenden. Mr. Speaker, I do not rise for the purpose of indulging in any general debate upon this subject, but merely for the purpose of making a suggestion in reference to one point of law presented in the report of the Committee of Elections as to the power of a convention to prescribe the times, places, and manner of holding elections for members of Congress. The point was made that this election was held under the order of a convention which was then held, and that the election was therefore irregular and void. Mr. Speaker, this, at least, is a very nice distinction. The power with which a convention is clothed is the sovereign power of the people. The extent to which it may go, and the limits that divide it from the ordinary legislative power, is a very nice and uncertain one. Why cannot a convention consider the election of members of Congress as of importance enough to be regulated by the fundamental law of the land, and give to it a place in the con- stitution? And will not that, in a liberal and just sense, be a compliance with the pro- visions of the Constitution of the United States which requires that the rules and regulations for holding such an election in » State shall be prescribed by the legislature thereof? It is in the highest sense of the term, if we will not allow ourselves to be embarrassedby the names "convention" and "legislature" — it is, in the highest possible sense, the legislative power of the people. But what was the object in putting this provision into the Constitution of the United States ? • It was to give to the States the power of regulating and conducting those elections. The use of the term "legislature," in that connexion, should, I think, be taken in the most broad and general sense. There ought to be no difficulty in a time like this in recognizing the authority of a convention in a matter of this description. It is a question which it seems to me should be decided by the proper authority of the State. In the Supreme Court of the United States the rule laid down and invariably followed is to go with the decisions of the State courts in theconstruction of State law. Else infinite difficulty will arise from the laws of the State being construed one way by the supreme court of that State, and another way by the Supreme Court of the United States. The Supreme Court of the United States have, in their wisdom, therefore, adopted the State construction of a State law. Well, sir, in determining the question whether the act of the convention in _this_ instance complies with the action of Congress and with the requirements of the constitution in regard to this election, it seems to me our construction of the law in this respect should follow the same principle. The judges of the courts are ordinarily the construers of law ; but there are laws that require executive construction. The governor of a State is the authority in ' whom is vested the right of saying whether an election was legal and valid. If the election be held upon improper authority, or upon no authority, it is the duty of the governor to give no certificate. But the governor in this instance gave a certificate that this gentleman was legally elected. Now, shall we differ with him upon the question of a Virginia understand- 436 CONTESTED ELECTION CASES IN CONGRESS. ing of a Virginia law as to what was a compliance with the requirements of the Constitution of the United States, as to whether a convention in a fair and liberal sense of the constitu- tion was a legislature ? Shall we undertake to overrule the decision upon a matter com- mitted to him, after lie has given, in accordance with the forms of law, under the broad seal of the State, a certificate under bis authority that this gentleman was regularly and legally elected ? Mr. Dawes. * * * * * I have felt the importance of the case to be, perhaps, more than I supposed yesterday it would he in the power of the Committee of Elections, or of any one, to impress upon the House. Not, sir, because it involves the representation of a single district upon this floor, hut because I have felt that it involves the representation of many districts upon this floor, and involves, perhaps, to some extent, a change ^n the nature and fundamental character of the House itself. I am gratified to fee), from the debate which has taken place, that the House is fully awake to the importance of the principle involved, and I have to regret, sir, that it has fallen to my lot, as the mouthpiece of the committee, to say what little is to be said in support of the conclusion of the committee, and to say it at the close of so long a debate as this, and after the House has necessarily become weary and tired of the case. I hope, however, that, as a matter of duty, if nothing more, the House will be patient with me, and, as far as they can, give me their attention 'while, as well as I can, I give such reasons as controlled the committee, and as still control me in the vote I shall be obliged to give upon this question. As no one has spoken representing the conclusions of the committee, and as all the debate has been in behalf of the memorialist, it necessarily will be that whatever I shall say will be confined merely to a reply to such considerations as have been offered in his behalf. I hope to confine myself as closely as possible to these considerations ; and if the House be not too much wearied I hope it will give me time enough to go through with them all. A few of them, standing at the threshold of the case, have been offered just at the heel of the debate. "Without regard to the order in which they have been presented, I feel' bound to consider one or two offered in this case just at the close of the debate. The first was that offered by the gentleman from Tennessee, [Mr. Maynard, ] that the House was bound to admit, this man to his seat because he comes here with the certificate of the governor of Virginia, under the broad seal of the /State. That same consideration was also urged by the distin- guished gentleman from Kentucky, [Mr. Crittenden.] Now, I. am afraid, Mr. Speaker, from what I have heard from the speakers on behalf of the claimant, that members of the House do not understand the facts of this case. How can my friend from Tennessee or the distinguished gentleman from Kentucky say that we were bound to admit this man to a seat because he came here with the certificate of the governor under the broad seal of the State, when he came here with no such thing ? I hold in my hand everything which 0ie brought here when he asked to be admitted to a seat in this house, and when, instead of admitting him as we did those who came here with a certificate under the broad seal of the governor, the House referred his case to the Committee of Elections, with instructions to inquire into the merits of his election. I say, Mr. Speaker, that the only paper this gentleman presented here, on the strength of which he asked to be sworn in and to take his seat, and on the strength of which the House referred the case to the Committee of Elections, was simply the paper which I hold in my hand. It is a certificate in these words : " I certify that the above is a correct register of the votes polled at Hampton, Virginia, this 24th day of October, 1861. "ALEX. WORRAL, Clerk." "We, the undersigned, fi eeholde.rs of Elizabeth City county, State of Virginia, do hereby certify that the above election was conducted agreeably to the call of F. H. Pierpoint, gov- ernor of the State of Virginia, by proclamation issued the 12th day of October,' A. D. 1S6J. "THOMAS DOBBINS. "T. S. TENNIS." j "I hereby certify that the above Thomas Dobbins and Theodore S. Tennis were duly sworn by me as judges of election held at Hampton, Elizabeth City county, State of Virginia, this 24th day of October, 1861. "CAPTAIN N. M. BURLEIGH, " Provost Marshal at Camp Hamilton. "Witness: "William Bartlett, Teller." The two men who held the election at Hampton, the place of residence of the memorialist, where he keeps a hotel, and where there were gathered together twenty-five votes for him in a box, certify to the fact that twenty-five votes were cast for him then and there. He took that certificate, brought it here, and asked to be sworn in. Tlie House, in its wisdom, re- ferred him and the certificate to the Committee of Elections, to inquire into the merits of that CONTESTED ELECTION CASES IN CONGRESS. 437 election. The committee proceeded to discharge that duty. The claimant submitted to the committee the evidence on which he claimed his seat. He subsequently obtained from these men a codicil to their certificate. That codicil I will read to the House : "And we do further certify that there was no poll opened at any other precinct in said county, and that so far as we can learn and confidently believe, there was no poll opened or election held for member of Congress in any other county or city or town of said first con- gressional district, owing to the tact that all the other counties and election precincts of said congressional district were, on the 24th day of October last, within the lines and under the influence and control of the seceding and rebel States ; and we do further certify that at the election held in pursuance of the proclamation aforesaid, at Hampton, on the 24th day of October, 1861, in the said county of Elizabeth City, which is one of the counties composing the first coDgressionul district of the State of Virginia, Joseph Segar, esq., having received all the votes polled, was duly elected to represent the said first district in the Congress of the United States. " Given under our hands and seals this 29th day of October, 1861. "ALEXANDER WORRALL. [seal.] "THOMAS DOBBINS. [seal.] "T. S. TENNIS. [seal.]" Having procured this certificate and this declaration on the part of these three men that he had been elected, Mr. Segar takes it to the governor after he had had a hearing before the committee. The governor, on the strength of it, issued a paper, which is by the gentleman from Tennessee [Mr. Maynard] and by the gentleman from Kentucky [Mr. Crittenden] pronounced conclusive on this house. Mr. Crittenden. I did not hold that it was conclusive, but that there should be reasons shown why it should not be held as conclusive. Mr. Dawes. With all due respect to my friend from Kentucky, I ask what are we doing now, if not seeing whether there is any reason why this certificate should not prevail? I trust that my friend does not apprehend that I would treat the governor of Virginia with anything but respect, or Tvould not give all due weight to his certificate. But I propose now to look behind that certificate. The governor of Virginia has relieved me of all trouble, for he has recited that on which he, bases his certificate. The claimant in this case has gone further, and has laid before the Committee of Elections the entire evidence on which the cer- tificate is based. * -* # 7* # # # Now, a new government has got to begin somewhere, and it might as well begin in a con- vention as anywhere else, and we have, so far as we we're concerned, sanctioned this conven- tion as the%;ommencement of the new government of Virginia. But the government it sets in motion takes the place of the convention from the moment it is put in' operation, ex neces- sitate rei. It is from the necessity of the case. It is limited by that necessity, and it has no authority to go one inch beyond it. Now, this convention set in motion a new government in Virginia. It elected a governor, and I consider him the governor of Virginia to all intents and purposes. It created a legislature. In other words, it overstepped the old legislature and provided for filling up the vacancies. . Then it put this legislature — and I ask my friend from Kentucky [Mr. Mallory] to listen for a moment in hcec verba. — and this government under the constitution of Virginia. It set them going and put them under the constitution of Virginia, and henceforth, if they were not false to their creation, they were to go along under that constitution ; to do what the legislature assembled in Richmond did, and to do no- thing more and nothing less ; to do what the constitution of Virginia prescribes, and to refrain from doing what that constitution said should not be done. The legislature assembled, took upon themselves the form of law, and proceeded in the work of legislation. "What occasion, then, in the necessity of the. case, was there for the further existence of this convention 1 My friend from Kentucky said that the convention went along side by side with the. legislature, and what the legislature did not do the convention would do, and what the con- vention did the legislature would not do. He said that if the legislature had passed a law for the election of members of Congress, the convention would not then have had any authority to do it ; and if the convention had done it, the legislature could not do anything in the matter. Here, then, are two separate co-existent supreme governments in the same State, and running at the same time, if I may be allowed the expression, neck and neck. Now I submit, that the moment the legislature was called into existence, and everything properly belonging to it provided, there being no authority in the constitution for any other body of men "to °do the legislation, that legislature alone was the body of men to do it. Further than that, the Constitution of the United States provides that the legislature shall do it. The House agreed to the resolution reported by the committee without a division. Note. — The debate will be found in the Congressional Globe, vol. 46. For the report: Mr. Dawes, p. 756. Against the report: Mr. Segar, p. 729; Mr. Noell, p. 733 ; Mr. Maynard, p. 751 ; Mr. Crittenden, p. 753 ; Mr. Brown, p. 754 ; Mr. Mallory, p. 755 ; Mr. Knight, p. 755. 438 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-SEVENTH CONGRESS, THIRD SESSION. Flanders and Hahn, of Louisiana. A disregard of a mere directory- provision of the law cannot annul an election carried on with all the essentials' of an election and with perfect fairness. The fact that a military governor fixed the day of an election is not sufficient cause for withholding representation in Congress to the people of a State. IN THE HOUSE OF REPRESENTATIVES, February 3, 1S63. Mr. Dawes, from the Committee of Elections, made the following report : That nearly all the facts upon which the claim of each is founded are common to hoth, and the conclusions of the committee being the same in each, one report will suffice for both cases. The election was held on the third day of December, 1862. The first dis- trict in Louisiana is composed of the parishes of Plaquemines, St. Bernard, and that portion of the parish of Orleans which lies on the right bank of the Missis- sippi, and the said parish on the left bank below Canal street, in the city of New Orleans, including said city below said street. The second district is composed of the upper portion of the city of New Or- leans, commencing at Canal street, and Jefferson, St. Charles, St. John, St. James, Ascension, Assumption, Lafourche, Terrebonne, St. Martin, and St. Mary parishes. At this election the vote cast in the first district was — For Mr. Flanders 2, 370 For all others 273 Total x - 2, 643 In the second district there were four candidates, and 5,117 votes cast, of which — Mr. Hahn had , 2, 799 All others 2, 318 Total 5, 117 Upon this vote Messrs. Flanders and Hahn claim to be elected and entitled to a seat in this house as representatives from their respective districts. Copies of their credentials accompany this report. All question as to the validity of this claim grows out of the anomalous con- dition of things in Louisiana consequent upon the rebellion. The provisions of law upon the statute book of Louisiana, so far as they pertain to this case, as well as a brief recital of the principal events in the rebellion, which have de- prived these districts' of representation hitherto in this Congress, are necessary to a full understanding of the subject. By an act of the legislature of Louisiana, entitled " An act relative to eleo tions," approved March 15, 1855, page 408 of the sessions acts, it is provided " that elections for representatives in the general assembly shall be held on the first Monday of November, one thousand eight hundred and fifty-five, and every two years thereafter," &c, and the same act contains the following sections rel- ative to elections for representatives in Congress : , CONTESTED ELECTION CASES IN CONGRESS. 439 Section 3J. Be it further enacted, S(c., That all general elections for members of Con- gress shall be held at the same time and conducted in the same manner as is provided for the election of representatives to the general assembly. ^ Section 32. Be it farther enacted, Sfc. That as soon as possible after the expiration of the time of making the returns of election for representatives in Congress, the governor, jointly with a secretary of state and a judge of one of the district courts of the State, shall proceed to ascertain from the returns the person duly elected, a certificate of which shall be entered on record by the secretary of state, and signed by the governor, and a copy thereof, subscribed as aforesaid, shall be delivered to the person so elected, and another copy transmitted to the House of Representatives of the United States, directed to the Speaker thereof. Section 33. Be it further enacted, Sfd, That in case of vacancy by death or otherwise in the said office of representative, between the general elections, it shall be the duty of the governor, by proclamation, to cause an election to be held according to law to fill the vacancy. A regular election for members of the thirty-seventh Congress should have taken place on the first Monday of November, 1861 ; but at that time the State of Louisiana had been invaded and overrun by the rebel armies, and the gov- ernor (who had become a rebel) neglected and refused to order the election for members of Congress according to law. Hence, no such election was held, and Louisiana was for the time deprived of her right of representation in the House of Representatives. On the 25th of April, 1862, the federal fleet under Commodore Farragut, after having passed Forts Jackson and St. Philip, and triumphed over all other re- sistance and obstructions in and along the Mississippi river, appeared off the city of New Orleans, and on the first of May the federal army had possession of the city, and General Butler published his first proclamation as commander of the " department of the Gulf," of which the following is the first paragraph : The city of New Orleans and its environs, with all its interior and exterior defences, hav- ing been surrendered to the combined naval and land forces of the United States, and having been evacuated by the rebel forces, in whose possession they lately were, and being now in occupation of the forces of the United States who have come to restore order, maintain pub- lic tranquillity, enforce peace and quiet under the laws and Constitution of the United States, the major general commanding the forces of the United States in the department of the Gulf hereby makes known and proclaims the object and purposes of the government of the United States in thus taking possession of the city of New Orleans and the State of Louisiana, and the rules and regulations by which the laws of the United States will be, for the present and during a state of war, enforced and maintained for the plain guidance of all good citizens of the United States as well as others who may heretofore have been in rebellion against their authority. The proclamation, among other things, invited "all persons well disposed towards the government of the United States" to " renew their oath of alle- giance," and promised to such the protection of the armies of the United States. This invitation was accepted by the people to such an extent that on the 24th of September, 1862, in the parish of Orleans and the adjoining parish of Jeffer- son thirty-three thousand four hundred and fifty-three (33,453) citizens had taken the oath of allegiance. On the 21st of October following, twenty-seven thousand nine hundred and twenty-nine (27,929) more citizens had taken the same oath, as appears from the report of the provost marshal general of Louisi- ana. Brigadier General George F. Shepley was appointed military governor of the State. Subsequently, as the rebel army retired from other portions of the State, and the federal army advanced and extended its lines to include that portion of the State generally known as the " Lafourche country," the citizens of this district also promptly came forward and renewed their allegiance to the government and the Union. About four thousand white soldiers enlisted in the Union army in the city of New Orleans, and many of the citizens formed themselves into companies of home guards to assist the federal authorities in case of any attack by the rebels. As fast as new parishes were brought into the federal lines, and the people in sufficiently large numbers renewed their allegiance and recognized the authority of the United States, the military governor of the State appointed judges, 440 CONTESTED ELECTION CASES IN CONGRESS. justices of, the peace, clerks of courts, sheriffs, constables, and other civil officers, and performed all the acts which legally and constitutionally devolve upon the governor of Louisiana. In all of which her loyal citizens acquiesced and ren- ■ dered an unquestioned obedience. Soon the people of the first and second congressional districts (which districts were entirely within the federal lines, with the exception of the parish of St. Martin and a portion of St. Mary) demanded the right of representation in Congress, of which they had for some time been deprived, through the treason of Governor Moore and the rebel invasion of the State. On the 14th of November, 1862, George F. Shepley, military governor of the State of Louisiana, issued a proclamation ordering an election for members of Congress in the first and second congressional districts, as follows : A PROCLAMATION. By Brigadier General George F. Shepley, military governtir of the State of Louisiana. Whereas the State of Louisiana is now and has been without any representatives in the thirty-seventh Congress of the United States of America ; and whereas a very large majority of the citizens of the first and second congressional districts in this State, 1 by taking the oath of allegiance, have given evidence of their loyalty and obedience to the Constitution and laws of the United States : Now, therefore, I, George F. Shepley, military governor of the State of Louisiana, for the purpose of "securing to the loyal electors in the parishes composing these two congressional districts their appropriate and lawful representation in the House of Representatives of the United States of America, and of enabling them to avail themselves of the benefits secured by the proclamation of the President of the United States to the people of any State, or part of a State, who shall on the first day of February next be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State have participated, have seen fit to issue this my proclama- tion, appointing an election to be held on Wednesday, the third day of December next, to fill said vacancies in the thirty-seventh Congress of the United States of America, in the fol- lowing districts, namely : The first congressional district, composed of that part of the city of New Orleans heretofore known as municipality number one and municipality number three, and now designated as districts numbered two and three, and Suburb Trerhe, that portion of the parish of Orleans lying on the right bank of the Mississippi, and the parishes of St. Bernard and Plaquemines. The second congressional district in the State of Louisiana, composed of that part of the city of New Orleans above Canal street, known as the first district, and district number four, formerly the city of Lafayette, and of the parishes of Jefferson, St. Charles, St. John the Baptist, St. James, Ascension, Assumption, Lafourche, Terrebonne, St. Maiy, and St. Martin. . S Writs of election will be issued, as required, and the election held at the places designated by law. The proceedings will be conducted and returns thereof made in accordance with law. No person will be considered as an elector qualified to vote who, in addition to the other qualifications of an elector, does not exhibit to the register of voters, if his residence be in the city of New Orleans, or to the commissioners of election, if his residence be in any other place in said districts, the evidence of his having taken the oath of allegiance to the United States. Given under my hand and the seal of the State of Louisiana, at the city of New Orleans, this fourteenth day of November, A. D. 18fi2, and of the. independence of the United States of America the eighty-seventh. , GEORGE F. SHEPLEY, , Military Governor of Louisiana. By the Governor : , James F. Miller, Acting Secretary of State. 1 In accordance with this proclamation the sheriffs and other officers gave public notice of the holding of the election, and all due and usual steps were taken to hold the same according to law. The sheriff of the parish of Orleans, on the 16th of November, 1862, issued the following notices in French and English : CONTESTED ELECTION CASES IN CONGRESS. 441 NOTICE OF ELECTION. Pursuant to a writ of election bearing date November 13, 1862, and to me directed by his excellency George F. Sbepley, military governor of the State of Louisiana, the qualified voters of the parish of Orleans are hereby notified that an election will be held on Wednesday, the 3d day of December, 1862, to fill the vacancy, being the unexpired term now existing in the representation, for one representative of the State of Louisiana to the thirty-seventh Congress of the United States from the first congressional district in the State of Louisiana, composed of that part of the city of New Orleans heretofore known as municipality No. 1 and munici- pality No. 3, and now designated as Suburb Treme, that portion of the parish of Orleans lying on the right bank of the Mississippi river, and the parishes of St. Bernard and Plaque- mines. The polls will be opened in each election precinct from the hour of 8 o'clock a. m. till 4 o'clock p. m. on the day aboye mentioned, to wit, the 3d day of December, 1862, for the purpose of receiving the votes of the qualified voters of the parish of Orleans, under the su- perintendence of the commissioners and clerks to be appointed by the authorities designated by law ; the election to be conducted, and triplicate returns made to the undersigned, return- ing officer, according to law. JAS. E. DUNHAM, Sheriff. NOTICE- OF ELECTION. Pursuant to a writ of election Bearing date November 13, 1862, and to me directed by his excellency George F. Sheploy, military governor of the State of Louisiana, the qualified voters of the parish of Orleans are hereby notified that an election will be hold on Wednesday, the third day of. December, 1862, to fill the vacancy, being the unexpired term now existing in the representation, for one representative of the State of Louisiana to the thirty-seventh Con- gress of the United States from the second congressional district in the State of Louisiana, composed of that part of the city of New Orleans above Canal street, known as the first dis- trict, and district number four, (formerly the city of Lafayette,) of the parishes of Jefferson, St. Charles, St. John the Baptist, St. James, Ascension, Assumption, Lafourche, Terre- bonne, St. Mary, and St. Martin. The polls will be opened in each election precinct from the hours of 8 o'clock a. m. till 4 o'clock p. m. on the day before mentioned, fo wit, the third day of December, 1862, for the purpose of receiving the votes of the qualified voters of the parish of Orleans, under the su- perintendence of the commissioners and clerks to be appointed by the authorities designated by law ; the election to be conducted, and triplicate returns made to the undersigned, return- ing officer, according to law.. JAMES E. DUNHAM, Sheriff. The 11th article of the constitution of Louisiana, of 1852, reads thus : The legislature shall provide by law that the names and residences of all quaMcd electors of the city of New Orleans shall be registered, in order to entitle them to vote ; but the reg- istry shall be free of cost to the elector. Notwithstanding this directory provision of the constitution, the legislature neglected to pass a bona fide registry law for the city of New Orleans until 1856. — (See Session Acts, page 131.) The registry law of 1856 provides for the appointment by the governor of a register of voters, " whose duty it shall be to register the names of all the qualified electors of said city in a well-bound book, which shall be kept for that purpose, to be called the ' original registry of voters,' in which he shall register, day by day, as they appear, the names and residences of all the qualifier! electors of the city of New Orleans," &c. Section 5th provides that he " shall issue to every citizen, when his name is registered, an original certificate corresponding in name, residence, number, and date, with the original registry, and the presentation of such certificate, if re- quired by the commissioner of election, shall be full proof of the facts contained therein and of the elector's right to vote," &c. Section 12th reads as follows: Be it further enacted, Sjc., That the register shall, on the morning of any general election, at the opening of the poll at each precinct in the city, deliver in person or by deputy to the commissioner of election a duly certified copy, written in a fair handwriting, of the precinct registry of all the names and residences of qualified electors as they appear on the registry, alphabetically arranged for the respective precincts of the city, with one-inch margin on the lei't hand side ; and it shall be the duty of the commissioner of elections, whenever an elector 442 CONTESTED ELECTION CASES IN CONGRESS. shall have voted, to mark on said margin, opposite his name, the word "voted," in a fair and legible hand. Should the register fail in this duty, or any other duty required by any of the provisions of this act, he shall forfeit his salary or fees of office, or so much thereof, according to the gravity of his act of commission or omission, as shall be decided in a suit or suits to be brought against him in either of the courts of the parish of Orleans, by the attorney general of the State, in the name of the State of Louisiana ; but said register shall have the right of appeal to the supreme court of the State, and in the mean time the governor may suspend him from his functions and appoint a substitute, who shall thereby assume all the powers and incur all the responsibilities of the suspended register. And section 15th is in these words : Be it further enacted, Sfc., That the possession of the certificate of registry issued to the le- gally registered elector shall be the evidence of his legal registry, and shall be conclusive evi- dence of that fact, and any mistake or omission of the register to place his name on the certified lists of registry, to be furnislicd to the commissioners of the different precincts, shall in no man- ner affect such elector's right to vote so far as the fact of legal registry is in question, and the com- missioners shall not have any power or discretion to refuse to receive his vote on the ground of or for the reason that his name has been omitted in the lists so furnished by the register; and the com- missioner or commissioners so refusing shall in solido be fined in a sum of not more than one thou- sand dollars, and imprisonment for not more than one year, after conviction on trial before the first district court of New Orleans, on indictment or information, and shall moreover be answer- able to the rejected elector, on suit brought by him before any court of the parish of Orleans, in such sum as the jury may in verdict award to him, and he shall not be required to prove any special damages further than his being, by the act of the defendant, deprived of his legal right of suffrage. # This law went into operation on the first Monday of October, 1856, but in 1861 a rebel legislature passed an act (page 17 of the Session Acts) the first section of which reads thus : Be it enacted, !fc, That the original registry of voters of the city of New Orleans now existing be, and the same is hereby, cancelled and annulled, and the register of voters in said city be, and is hereby, authorized and required to open a new book to be called the original registry of voters, to be kept in the same manner as the registry of voters cancelled by this act has been heretofore kept. And the 2d section provides that no elector shall be registered unless he takes an oath to support the constitution of the State and of the Confederate States. This act of 1861 was, of course, unconstitutional; and when the authority of the United States was again enforced the registry of disloyal electors to which it had given birth was done away with, and the original and only constitutional law on the subject — the act of 1856 — was revived, and, as the " original registry of voters" had been cancelled and annulled, it became necessary to appoint a new and loyal register of voters, and to begin again a registry under the act of 1856, which was done. The judges or commissioners of election in the parish of Orleans are appointed by a " central board of commissioners," composed of the" mayor of the city, the register of voters, the attorney general of the State, "and two citizens of New Orleans, who have resided in the State at least five years, to be appointed by the governor." — (See act of 1857, page 289, section 6.) This board performed its duties by appointing the judges of the election, and officially publishing their names, precincts, &c, in French and English, previous to the election. As it was found impossible, for want of time, to register the names, &c, of all the voters before the day of election, the military governor ordered that those who were unable to have themselves registered in time should nevertheless be allowed to vote in the parish of Orleans in the same manner as is allowed in the country — by satisfying the commissioners of their right to vote. His procla- mation to that effect is herewith submitted. On the day of the election the registry of voters, as far as made, was at every poll ; but persons whose names were not on it were, by the commissioners of their respective precincts, allowed to vote by proof of the requisite qualifications, which was mostly done by the production of the certificates mentioned in section 15 of the act of 1856. CONTESTED ELECTION CASES IN CONGRESS. 443 Some might suppose this a departure from the law ; but when the language of section 15 of the act of 1856 is considered and applied to the facts, it is difficult to see how the spirit of that act has been disregarded ; and had its pro- visions been ignored in this particular it would clearly have been only a dis- regard of a mere directory provision of the law. The principal and only aim of the law is to secure fair elections, and the non-observance of directory provisions cannot annul an election carried on with all the essentials of an election and with perfect fairness. This principle of law, with regard to directory provisions, has been repeatedly and clearly laid down by the supreme court of Louisiana and the supreme courts of other States, as well as by the Supreme Court of the United States, and is too well understood by every legal mind to need any elucidation here. And it is expressly' enacted that no elector shall be deprived of his vote by any omission to give him a certificate of his election. It may be well to remark that under no possible view can this question be of any practical importance in this case, as the result would be the same with regard to the successful candidates even if the whole vote of New Orleans would be thrown out, for they both obtained majorities in the country parishes of the respective districts where there are no registry laws. The election took place on the 3d of December, and the following statement shows the result in detail : First congressional district, State of Louisiana. CANDIDATES. t> S3 Parishes. TS .SP 3 fee to pq to w ■Js "as o pq *-5 .02 Sri 2.146 136 16 2,298 43 n 54 ' 141 10 151 Total 2,330 157 16 2,403 444 CONTESTED ELECTION CASES IN CONGRESS. Second congressional district, State of Louisiana. CANDIDATES. Parishes. w R W H s M ■8 o It 1-5 CO s o CD H W Scattering. "3 "o H 1,411 133 856 51 265 46 178 179 3 2,713 409 St. Charles 11 382 8 38 112 22 '7 49 17 27 20 33 89 157 218 461 330 18 1 114 589 243 28 554 462 Total 2,799 1,458 453 357 50 5,117 In the parishes of St. -Mary and St. Martin's, the only other parishes of the second congressional district, there was no election, in consequence of the pres- ence of rehel guerilla bands in portions of those parishes. The committee have found little difficulty in coming to a conclusion that the . claimants should be admitted to their seats, except in doubts as to the power of the military governor to fix the day of this election. In all things else there has been strict conformity to law. The districts were entirely free from a rebel, force to restrain or overawe the loyal votes. The old voting precincts and voting places were all restored, and votes polled at every one of them, except in one inconsiderable parish, and part of another in one district into which guerillas sometimes made incursions. There was a very fall vote given — a re- markably full one when compared with the vote at former congressional elec- tions, if allowance be made for the usual proportion of voters among the soldiers absent in the "Union and rebel armies. Two thousand men had been recruited by General Butler into his own regiments, and two full regiments of Louisiana troops had been organized by him from these two congressional districts, while more had gone into the rebel army, though many of these had returned to the city and their allegiance. Deducting the proper proportion of voters from these, and there can be no doubt of a full vote when the result is compared with that in former years. At the last election for representative in the first district, in 1859, the whole number of votes was 4,970; at the present election 2,643; dif- ference, 2,327. In the second district, in 1859, the whole number was 10,367; at the present election the whole number was 5,1 17; difference, 5,250. The election appears to have been preceded by as earnest a canvass, by different candidates, as is usual. Public meetings were held in the city hall and other parts of the city. Conventions were held, candidates brought for- ward, their merits canvassed, and some withdrawn, while others and all who wished, and had not disqualified themselves under the act of Congress by their connexion with the rebellion, tried their chances of an election. The public ' papers, immediately after the election, testified to the quiet and good order which distinguished the day ; and one of them, published by a defeated candi- date, speaks the next morning after the election of the manner in which it was conducted as follows : CONTESTED ELECTION GASES IN CONGRESS. 445 From the National Advocate, owned and published by Mr. Jacob Barker, one of the defeated candidates. The election yesterday, in the second congressional district, so far as the city is con- cerned, resulted in giving Mr. Hahn a majority. It was the most orderlp and well-conducted election ever witnessed in this city. So far as Mr. Barker was personally concerned, he is well pleased with the privilege of remaining at home. His wish, often put forth in this paper, was that every olector should vote for the man he considered best qualified for the work to be done. The New Orleans Delta, which supported Mr. E. H. Durell in the second congressional district, on the morning after the election uses the following lan- guage : We should have been gratified to announce the election of Mr. Durell. He is an able man and would have done the State service. But we are satisfied with the result, since so able a man and true a patriot as Mr. Hahn. has won the prize. It further says : The election yesterday, for two members of Congress to represent the first and second congressional districts of Louisiana, passed off very quietly. There was no disturbance of any kind, so far as we have heard ; and in this particular we have to congratulate the in- habitants of this city on the favorable change that has taken place in the manners of the people since the advent of the new rSgime. There were, to be sure, some noisy demonstra- tions on the part of the partisans of Mr. Jacob Barker, but he was defeated — getting fewer votes than any other candidate. The New Orleans True Delta, a paper which supported Mr. Hahn in the second district, hut not Mr. Flanders in the first, two days after the election commences an editorial as follows : Now that the smoke of battle of Wednesday's election has cleared away it may not be considered inappropriate if we refer, in a few words, to that important event. The election for Congress in the first congressional district seems to have gone by default, Mr. Flanders having been almost unanimously elected. The contest in the second congressional district, always considered one of the most im- portant districts in the State, was an exciting one, &c. Major General B. F. Butler, in his farewell address to his army, dated December 15, 1862, pointing with pride to the peaceful fruits of the restoration of order and law in the rear of its triumphal march, thus speaks to it at different and distant posts of duty : I take leave of you by this final order, it being impossible to visit your scattered out- posts, covering hundreds of miles of the frontier of a larger territory than some of the king- doms of Europe. In enumerating the benefits conferred on Louisiana by the entrance and con- duct of the federal army, he says : You have fed the starving poor, the wives and children of your enemies ; so converting enemies into friends, that they have sent their representatives to your Congress by a vote greater than your entire number from districts in which, when you entered, you were taunt- ingly told that there was no one to raise your flag. And in his farewell address to the citizens of New Orleans, dated December 24, 1862, General Butler says : " I have given you freedom of elections greater than you ever enjoyed before." Indeed, one of the most cheering omens of restoration and peace which has been discovered in the whole progress of the war is the alacrity with which the electors of these two congressional districts responded to this call for an election of representatives to the United States House of Representatives, and the orderly manner in which they exercised the elective franchise. It remains to be considered, finally, whether this election, thus conducted, in which all the loyal voters in such numbers participated in conformity with all the provisions of law, shall be set aside by this house and the representation ' denied, because the time for holding it was fixed by the military governor in the absence of any other governor. The exact powers of a military governor cannot be easily defined. They have their origin in, and are probably limited 446 CONTESTED ELECTION CASES IN CONGRESS. by, necessity. They are to some extent civil as well as military, and the authority for his civil functions is no less clear than for his military. The Supreme Court and Congress have recognized both. The former, in the case of Cross iis. Harrison, (16 Howard, 1.64,) recognized as valid the imposition and collection of duties by a military governor, even after the port at which they . were imposed and collected had been by statute included in a collection district and a collector appointed, but who had not entered upon the duties of his office. And Congress admitted California into the Union with a State government formed and set in motion, even to the election of senators and representatives in Congress, exclusively under the auspices of a military governor. The consti- tutionally elected governor of Louisiana had turned traitor, and refused to dis- charge his constitutional obligations in this regard. What were the loyal voters to do? Were they to turn traitors also or be disfranchised 1 The Constitution imposes upon the United States this obligation, (art. iv, sec. 4 :) The United States shall guarantee to every State in this Union a republican form of gov- ernment, and shall protect each of them from invasion j and on application of the legislature, or of the executive, (when the legislature cannot he convened, ) against domestic violence. Eepresentation is one of the very essentials of a republican form of govern- ment, and no one doubts that- the United States cannot fulfil this obligation without guaranteeing that representation here. It was in fulfilment of this obligation that the army of the Union entered New Orleans, drove out the rebel usurpation, and restored to the discharge of its appropriate functions the civil authority there. Its work is not ended till there is representation here. It cannot secure that representation through the aid of a rebel governor. Hence the necessity for a military governor to discharge such functions, both military and civil, which necessity imposes in the interim between the absolute reign of rebellion and the complete restoration of law. Suppose Governor Moore to be the only traitor in Louisiana. One of two things must take place. The people must remain unrepresented, or some one must, assume to fix a time to hold these elections. Which alternative approaches nearest to republicanism — nearest to the fulfilment of our obligations — to guarantee a republican form of government to that people, closing the door of representation, or recognizing as valid the time fixed by the military governor ? Are this people to wait for representation here till their rebel governor returns to his loyalty and appoints a day for an election, or is the government to guarantee that representation as best it may ? The committee cannot distinguish between this act of the military governor and the many civil functions he is performing every day, acquiesced in by every- body. To pronounce this illegal, and refuse to recognize it, is to pronounce his whole administration void and a usurpation. But necessity put him there and keeps him there. Again : this George F. Shepley assumes to act as governor of Louisiana, discharging the civil functions of such governor. This is one of them. All loyal men in the State acquiesce in these acts. There is no other man dis- charging them or seeking to discharge them. This act of fixing the time of an election comes in conflict with no time fixed by any other man. This is to be governor de facto. This house has no jurisdiction to determine who is right- fully in the office of governor of Louisiana. Thus, if this act be taken as the act of a governor de facto, it must be recognized as valid. The present house has already recognized and pronounced as valid this very act of a governor de facto in fixing the time for holding an election in the case of two members of the house from Virginia. The committee are therefore constrained, as well by the precedents which this house has already laid down for its guide as by the other considerations herein submitted, to recognize the day thus fixed for this election. In a case heretofore submitted to this committee, that of the honorable Andrew J. Clements, of Tennessee, after a careful consideration of the whole subject, CONTESTED ELECTION CASES IN CONGEESS. 447 they submitted a resolution, which was unanimously adopted by the House, in favor of his right to the seat he claimed, based upon the following conclusion : In conclusion, the committee, upon the whole evidence, find that on the day of election no armed force prevented any considerable number of voters in any part of the district from going to the polls ; and that on that day, in conformity with the forms of law, two thousand votes at least were cast for the memorialist as a representative to this Congress, and- none, so far as the committee know, for any other person. They therefore report the following resolution, and recommend its adoption. In the Louisiana cases, here presented, all the essentials of this case are fully found, and all that is essential to an election abundantly proved. The com- mittee, therefore, report the following resolutions : Resolved, That Benjamin P. Flanders is entitled to a seat in this house as a represent- ative from the first congressional district in Louisiana. Resolved, That Michael Hahn is entitled to a seat in this house as a representative from the second district in Louisiana. The debate upon this case was very lengthy, covering many points not in- volved in the legal principles decided by the committee. The extracts given below will show the course of the argument for and against the report : Mr. Dawes. * * * * ^ n ^[ jhg committee were led to inquire what were the powers of a military governor, and how far the civil functions which he exercises are to be held valid, or at least be recognized by this house. The committee sought, as the House well knows, to obtain from the President what sort of a commission he clothed this military gov- ernor with — without success, however. The office of military governor is not very clearly defined. I suppose it has its origin in necessity. There is an absolute necessity for some person, under the circumstances in which we found ourselves in New Orleans, to discharge precisely the functions discharged by this governor. He must of course take his authority not from the constitution of Louisiana or the laws of the State, for neither the constitution of Louisiana nor the laws of that State contemplated such an exigency as was upon the people there; nor have the laws of the United States. They have, never contemplated that the governor of Louisiana should turn traitor and abdicate the office of governor under the con- stitution and laws of the State. What, then, of the acts of this military governor are to be recognized ? That he has dis- charged every day there civil as well as military functions cannot be denied. A military governor is not entirely unknown to the law, even in this country. The Supreme Court of the United States has recognized not only the power of the President of the United States to appoint a military governor, but has recognized both his military and civil functions as binding in law. They have not undertaken, it is true, to say how far, as a military man, he may discharge the functions of the civil governor. So far as they have had occasion to pass, they have limited them as near as may be to the line of necessity. They have, however, given full force and effect to the acts of a military governor, when acting in a civil capacity. When a military governor was appointed for the Territory of California, before it was ad-, mitted as a State into the Union, he was obliged, from that same necessity, constantly to discharge the civil functions, and civil functions of a variety of character, for which we have no authority except that of necessity. These have come under the cognizance of the Supreme Court of the United States, and they have pronounced them valid even to the extent of im- posing duties and collecting revenue by a collector of a port appointed by the military gov- ernor, and who continued in the discbarge of his functions, imposing duties and collecting revenue, even after that port had been embraced within a collection district, and a collector had been appointed in accordance with the requirements of the statute. So that, to some extent, certainly we have the highest authority for the validity of the civil functions of a military government. The question comes, what is the limit; or, rather, the practical question is at this moment whether these particular functions, exercised under these circumstances, are of such a char- acter as to deserve to be recognized by this house at this time? Those who believe that he cannot exercise civil functions of course strike at all of his acts, and upturn all that he has done during the exercise of his power in New Orleans. They pronounce invalid all of his acts, even to the judgments of the courts and the executions of those judgments, the enforcing •of police regulations and the collection of debts; in other words, they revolutionize anew and break up the order of things established there,and create anew chaos, I suppose to show with what skill they can restore again from chaos law and order. The question arises how we can from chaos draw anew law and order except on the assumption at same point of the power by some person. Inasmuch as the constitution of Louisiana, or the laws or the Constitution of the United States, inasmuch as they have all failed to provide for such a contingency, one of the two things must be : the chaos must ■obtain forever in that State ; we mast wait fm- t-ho return of the traitor governor of Louisiana 448 CONTESTED ELECTION CASES IN CONGRESS. to loyalty and to the discharge of the functions of his office; or somebody must assume at some point authority to set the wheels of the government again in motion. It has always been the practice of the House in the absence, from any cause whatever, of the civil govern- ment, to set it in motion, and to recognize as being necessary and assuming to be lawful that which some man may assume to perform. The committee did not see any good reason for making that assumption at one point or at another ; but wherever it may have sprung up, provided that the loyal people acquiesce in it and regard it as legal, and provided that it . confined itself to the necessities of the case, to set the law and the Constitution itself m motion at the earliest possible period of time. The people must be satisfied with it. It did not seem to us that it made a difference whether they recognized it at one point or another. So this house has often set the example that it is a matter of indifference at what point the assumption is made: Mr. MAYNARD. I ask the gentleman from Massachusetts to allow me a few moments on this question at this point, if it is his intention to call for the previous question when he ha3 closed his remarks. Mr. Dawes. I do not intend to call for the previous question. Mr. Harm desires also to speak on the report of the Committee of Elections. Ml-. Speaker, I was saying, when interrupted, that Congress itself had set the example of recognizing as legal the war-exercising authority in different stages of this rebellion in the different States, provided that they could be satisfied that these acts resulted from necessity, and were acquiesced in by the people. The Senate, in recognizing the case of a new legis- lature of Virginia, started, improvised— I will not say that that is the opinion, although I entertain the opinion-r-it improvised in Western Virginia a legislature which sent two sena- tors, bringing with them the seal of the State and the name of a new government almost not an hour old. They refused to inquire into the legality of the proceedings and the authority under which this government acted, falling back on the question whether it was not a bona fide government ; whether wisely or not it is quite too late for us to say now, for following that up, the House recognized the authority of that very government. We recognized the authority of the governor to hold elections. He made his proclamation, issued his writs of election, and elections were held under them ; and, sir, the members elected at those elections are now sitting in this house. The right to their seats is traced directly to that point. Mr. Wickliffe. Was not that governor elected by the people? Mr. Dawes. Not Until long after the transactions I have alluded to. Mr. Wickliffe. Then how was he made governor ? Mr. Dawes. He was appointed governor by a convention. Mr. Wicklifpe. Convention of the people? Mr. Dawes. A general convention, who claimed to represent the people. Mr. Wickliffe. Yes, sir; they represented the people. there. Mr. Dawes. Precisely as I have said before, that in what form and in what manner that assumption of power is obtained, it has no authority of constitutional law behind it. It is ordinarily done through the machinery of a convention ; but there is no constitutional law, no law of any kind, that clothes such a convention with any more authority than a mass meeting of New Orleans, where the whole body of voters assembled. Mr. Koscoe Conkli.\g. Isjiot the distinction, that in. the case he speaks of, the govern-' • ment was a provisional government of the people and purely a civil government ? Mr. Dawes. I do not know what my friend calls a provisional government. It was a provisional government that provided for the necessities of the case. In that sense it was a provisional government. It was born of a mass meeting. The man who came from that body is governor of Virginia. He is clothed with powers as commander-in-chief as well as with those of civil governor. Mr. Roscoe Cokkling. Still he was a civil governor. Mr. Wickliffe. Oblige me with the law that confers 'the authority on these military governors. Who confers that power? Who creates the jurisdiction? And what are the limitations of the powers of a military governor? Mr. Dawes. The gentleman has not done me the honor to listen to what I have said, or else I have failed to make myself understood. Mr. Wickliffe. I beg the gentleman's pardon. Mr. Harrison. If there had been an acting civil governor of the State of Louisiana at the time these elections were ordered, would he have been authorized by the laws of the State of Louisiana to have issued a proclamation directing such elections to be held in those dis- tricts at the time the elections iu question were held ? Mr. Dawes. There is no doubt about that. If the gentleman will read the report, he will find the authority to the governor of the State. Mr. Harrison. 1 find that section thirty-three of the election law of Louisiana provides — ' ' That in case of vacancy by death or otherwise in the said office of representative between the general elections, it shall be the duty of the governor, by proclamation, to cause an election to be held according to law to fill the vacancy." I understand the fact in this case to be that these elections were ordered to be held to fill vacancies alleged to have arisen by reason of the failure to elect members of Congress in CONTESTED ELECTION CASES IN CONGRESS. 449 November, 1861, that being the time prescribed by the laws of Louisiana for the regular election of members of Congress. Does the section of the law which I have quoted provide for the precise case we have here ? Mr. Dawes. The law is as it has been read. That is, if during the two years for which the representative in Congress is elected the vacancy shall occur from any cause whatever, then it is the duty of the governor, by proclamation, to call an election to fill that vacancy. Where the time prescribed by the regular law for the election of a representative to Con- gress passes, for any reason whatever, and there is nobody in office, there is a vacancy which the governor of a State is required to fill. I think the office is quite as empty with nobody in it as if somebody had been in it a part of the term and then died. The House has passed upon that question heretofore. The question was up for discussion in this hall in one of the Virginia cases, and the point was taken by the claimant in the House that there could not be a vacancy unless the office had been once filled ; but the House thought otherwise, and I think the House was right. Sir, this man was discharging all the duties of governor of Louisiana which it became necessary to discharge. We are not authorized to pass upon the question whether or not he rightfully discharges those duties ; that is to say, we are not authorized to pass upon the question who is governor and who is not for the State of Louisiana. So far as we are con- : cemed we have the power to reject or admit a member for any reason we please. Discharg- ing all those duties ; holding himself out to the public as governor of Louisiana to this extent ; everybody acquiescing ; no one act of his, so far as our information is concerned, con- flicting with any other act of anybody else assuming to be governor — it is fair, I say, that we may to this extent treat him as governor of Louisiana de facto. I know very well that according to the strictest old common-law definition of a governor de facto it may be diffi- cult to sustain entirely his position as such. I do not put my position upon that ground. I say that that ground has been deemed, in this house and in the other branch of Congress, to have been a sufficient ground upon which to rest in recognizing the acts of a man assuming to be the governor of a State, when, in point of fact, he had no legal authority for those acts. But, sir, another more serious question is presented, after all : how are these districts and this State ever to be represented again in this Congress, except by some means entirely analogous to this case ? I do not mean by means exactly like this ; but I do not see how there can ever exist any means in the world for' these districts ever again to be represented in this Congress except by means analogous to this, and having no more authority or sanc- tion of law than this has. The authority of law may originate through a different machine- ry ; it may start from another point ; it may go back to mass conventions in the district of State ; it may arise from usurpation of authority, in which all the people may acquiesce; yet it still starts somewhere by itself, and without constitutional authority or authority or law. Therefore it is that the committee do not see that it matters at all whether it starts at this point or any other, provided it has the all-important and all-essential element of securing to the people of these districts the free and untrammelled and unawed exercise of the elective franchise. That they are entitled to representation here, no man who acknowledges his obligations to the Constitution can doubt for a moment. That we have something to do as a government here in Washington in securing to them that representation, I do not see how anybody can doubt for a moment. What we shall do, or what are the particular means or methods by which we shall secure that, may depend upon the circumstances of each particu- lar case ; but if we acknowledge the obligations of the Constitution upon us to guarantee to them a representation here, we have got to do our part towards securing it. And when a ease is presented like this, where there has been such freedom and such a full and hearty expression of the choice at the ballot-box ; where the forms of law have been complied with with such scrupulous regard ; and where the election lacks only the constitu- tional sanction of a governor, who has fled the country and refused to discharge the duties devolved upon him by the Constitution, shall we shut the door against such a representation as this, and ask ourselves whether any other method better, any other method safer or more in conformity with republican institutions and the requirements of the Constitution, can be adopted there with any hope of success ? I am not an advocate of the authority of military governor/5. The presence of that au- thority one inch beyond where it is necessary does not meet my approval. I would circum- scribe it to the narrowest possible limits. I would give to this act of authority precisely the same force and effect here to-day as if it originated in the appointment of him by a mass meeting of all the electors of these two congressional districts assembled in the City Hall at New Orleans, because I believe in setting in motion the wheels of government in these States at the earliest possible moment. I believe, as I have often stated here, and tired the ear of the House by repeating, that it is the only hope of the restoration and of the continuance of this government in the form and under the sanction of the Constitution ; and no better method, no healthier method, to my mind, is open to us than that which, reorganizing the spontaneous voice of these elec- tors, gives it a place here, around which the Union sentiment of Louisiana may cluster, and cling, and twine itself, and grow and bear fruit. TT TV/Ho T»~» c ™ 450 CONTESTED ELECTION CASES IN CONGRESS. Now, one word as to this matter of registry. My friend from Maryland [Mr. Crisfield] claims that this was an utterly illegal election, because of a want of the registry of the votes. The gentleman claims that such registry is essential to the qualification of the voter, rather than to the evidence of that qualification ; and that the qualification of a voter to the exercise of the elective franchise depends upon what another man shall do to secure to him the evi- dences of that right. That is altogether a mistake. The right of voters to exercise the elective franchise does not depend upon the question whether other men do their duty. Nor did the statute of Louisiana ever contemplate sucn a thing. The statute of Louisiana ap- pointed this man to make a registry, and it imposed a very heavy penalty upon him if he did not register a man, and did not furnish him with a certificate of evidence that he was a citizen. And then, in order that ee man might not be deprived of his right to vote if he failed to get the certificate, it further provided in terms : "Be it further enacted, $?c.. That the possession of the certificate of registry issued to the legally registered elector shall be the evidence of his legal registry, and shall be conclusive evidence of that fact, and any mistake or omission of the register to place his name on the certified lists of registry, to be furnished to the commissioners of the different precincts, shall in no manner affect such elector's right to vote, so far as the f^ct of legal registry is in ques- tion, and the commissioners shall not have any power or discretion to refuse to receive his vote on the ground of or for the reason that his name has been omitted in the lists so fur- nished by the register." Thus it expressly provided, out of abundant caution, that the right of an elector to the exercise of the elective franchise shall never be extinguished by the folly and madness of any man whose duty it is to furnish him with evidence of his right. But, sir, all those voters had been registered once. The rebel legislature had destroyed one old registry that had their names upon it. The law nowhere required them to be regis- tered twice. Does the gentleman claim that the rebel legislature, by destroying this registry, had forever disfranchised all the citizens of New Orleans, and that by an act admitted to be unconstitutional ? Has the distinction between directory acts and others occurred to the mind of the gentleman 7 Does he not know that there are many, especially in matters of election, mere directory laws, a failure to observe which will not vitiate the election? The court of appeals of New York (People vs. Cook, 8 New York Reports, 256) thus states it : ' ' The provisions of the statute, as to the manner of holding elections, canvassing votes, and making certificates of canvass, are in many respects directory, and neglect to comply does not always vitiate the election." It was decided in that case that an election conducted by inspectors de facto is valid, and will not be avoided except for fraud. A case was decided by the court of appeals, the court of last resort in New York, in 1856, so strikingly analogous to the one before the House that I beg leave to call attention to it. Judges of the supreme court of that State are elected by the people. Vacancies are filled by executive appointment. The statutes provide that on the I5th October preceding each gen- eral election in November notice shall be given of all officers to be voted for at that election. After this notice had been given, and a few days before the election, a judge died. It was too late to give any notice according to law, and none was given. The people took notice of the vacancy, and of their own mere motion voted for a successor. The governor, believ- ing that the "next election" meant the one "next" after a legal notice could be given, ap- pointed a man to fill the vacancy. In a quo warranto (Davis vs. Cowles, 13 New York Re- ports, 350) this is the decision : "When the office of a justice of the supreme court becomes vacant before the expiration of his term of office, the vacancy is to be supplied by the electors of the judicial district in which it exists at the next general election of judges, although tlie vacancy occurs at so late a day that no notice is or can be given by the secretary of state, or other officer, pursuant to the statute, that a justice is to be elected at such election to fill the vacancy." Mr. Voorhees. * * * * Again, sir, I come back to the very foundation of this whole proceeding. I deny that George F. Shepley, as brigadier general and military gov- ernor of Louisiana, or in any other capacity, unless the people of Louisiana had of their free, untrammelled choice, made him their governor under the constitution and laws of that State, had any right at all to the power which he has exercised. I care not if he ha"d exercised this power in accordance with the forms and precedents of the constitution and laws of Louisiana. The question would still arise as to his right to be in that capacity at all. The constitution of Louisiana knows him not. The Constitution of the United States knows not this man, George F. Shepley, as the governor of a State, military or civil. He is known to nothing except the appointing power that rests in the commander-in-chief of the army, the Pres- ident of the United States, to make him a general. Do you know what powers appertain to a brigadier general of the United States army? If you do, you know what powers reside with George F. Shepley ; and he can properly exercise no others. Outside ot them he is a dead man officially, and his acts have no validity with me. You may argue questions of expediency; you may argue questions of the restoration of the Union ; I shall argue first my oath, my conscience, and my duty to civil liberty. You may reflect your wishes, your hopes, and your fears in your arguments here, but nothing CONTESTED ELECTION CASES IN CONGRESS. 451 can change a principle or escape the power of truth. No ingenuity can reason away the fact that in this proclamation George F. Shepleywas a usurper. It is of a piece, too, with a wide-spread system of executive encroachment, which, unless trampled under foot by the representatives of a free people, will speedily trample us to death under its feet. Give to this system vitality here in this hall, and if your armies move on and take possession of States, the representatives, not of the people, but of the one-man power enthroned at the west end of this capital, will be seen here outnumbering and defeating the representatives of all the loyal States in this Union. In vain then will popular elections take place ; in vain will popular measures be inaugurated ; your President can defy them all. If you enter upon the course which the recommendation of the Committee of Elections invites us to pursue, this day you place the liberties of the people in the hands of the Pres- ident. A majority in this house may adopt this resolution, but that majority no longer expresses the will of a majority of the people. No, sir ; the people of the country are list- ening with joyful anxiety for the sound of the retiring footsteps of the majority of this house as they go out to return no more to these halls. I declare before the country that within the last twenty months the thirty-seventh Congress has sanctioned greater strides towards despotism than has ever been made in any other government professing constitutional limits within a period of two hundred years. And if I had not thought this was a part and parcel of a grand gigantic system of executive domination, I would not have raised my voice to-day. It is not my custom nor my pleasure to mingle much in debate. But I ask the people to watch the proceedings on this question. If the army can go forth and bring representatives with voices equal to ours, with no con- stituents to trammel them at their back, with no one to represent except the President, then we might as well know it at once. Then our seats here become worse than valueless. They will be emblems of our vassalage. I do not say, and do not wish to be understood as saying, that the gentlemen from New Orleans would, in any sense, be the tools and the implements of usurped power here. I know nothing of it. I care to know nothing of it. The prin- ciple, however, is fraught with disaster and absolute overthrow to republican liberty. It is also fraught with the absolute overthrow of the independence of this legislative body. You may sanction it if you please. I wash my hands of it. Mr. Porter. * '* * The gentleman from Massachusetts says that the claimants were elected in pursuance of the provisions of section thirty-three of the act of the legislature of Louisiana, which provides that — " In case of vacancy by death or otherwise in the said office of representative between the general elections, it shall be the duty of the governor, by proclamation, to cause an election to be held according to law to fill the vacancy." Can it be possible that the gentleman maintains that these elections are valid under that provision 1 I think I have shown, by satisfactory historical citation, that the clause in the Constitution touching the time, place, and manner of electing representatives was meant, in part, as a safeguard against the power of the President. Can it be possible that a military agent, a commandant appointed by the President, assuming the title of military governor of Louisiana, but not professing to derive any authority from the constitution of that State or from the people thereof, can be regarded as the executive authority of the State under that section or under the second section of the first article of the federal Constitution ? It is trifling with the good sense of the House to argue such a proposition. Let us see to what it would lead. The federal Constitution does, indeed, provide that when vacancies happen in the repre- sentation from any State, the "executive thereof" shall issue writs of election to fill them. It also provides that when vacancies happen, by resignation or otherwise, in the seats of senators, during the recess of the legislature of any State, the " executive thereof " may make temporary appointments until the next meeting of the legislature. Will it be argued that a military governor appointed by the President as General Shepley was may appoint senators of the United States ? That would, indeed, be allowing a President more ambitious than the present incumbent of the office dangerous powers indeed. That would, indeed, be akin to the power of the king to " add at his will new members Jo its upper house, by creating peers." Sir, the so-called military governor of Louisiana is merely a military commandant, appointed to aid in suppressing domestic insurrection. He cannot, in any proper sense, be called the governor - of the State, because the 'constitution and laws of Louisiana provide how a governor shall be appointed ; namely, by means of a popular election. He may, indeed, as a military officer of the United States, exert some of the powers that the governor of Louisiana was capable of exerting under the State constitution, but that is merely an acci- dent. Mi - . Maynard. "Will the gentleman explain what becomes of the civil rights of the peo- ple of Louisiana ? Mr. Porter. I suppose, from the question now put and one propounded a short time since, and from his speech, that the gentleman from Tennessee means to direct my attention to the clause in the federal Constitution which declares that " the United States shall guarantee to every State in this Union a republican form of government. " Bat that can have no bearing upon the question under discussion. What is the meaning of that provision ? 452 CONTESTED ELECTION CASES IN CONGRESS, Clearly, it relates to States, in connexion merely with their State functions, and not in con- nexion with their relations to the federal government. It leaves the constitutional provision concerning the time, place, and manner of holding elections for representatives in Congress unaffected. The guarantee is to every State. It is the duty of the United States to prohibit the exercise of authority under any other form of government in the State, and to remove all obstructions to the maintenance or restoration of the republican form. In Louisiana the constitution and the laws in existence when the rebellion broke out remain unchanged, but there are no agents to give efficacy to them, those who were invested with official authority having by the act of rebellion, disavowing the government of the United States and claiming to live under another government, abdicated their offices. It is the duty of the United States to remove all impediments in the way of the loyal people which prevent them from enjoying the benefits of their State constitution and laws as they existed before the rebellion. Possibly, to facilitate this, it might exert a limited power to set the machinery of the State government in motion. But it is the policy of the Constitution to allow as little interference by the federal govern- ment with the institutions of a State as is consistent with the maintenance of the federal rela- tion. It might possibly be proper, under particular circumstances, to appoint the subordi- nate officers requisite to call the primary elections and to fix the times for them ; to touch the spring that might set the first wheel going, that the impulse might be communicated from one to another till the whole machinery should be in motion. But it would be mon- strous to maintain that the federal government could appoint all the officers of the State, governor, judges, members of the legislature, &c, because so soon as the incipient ma- chinery of the State should be set in motion, the people could speedily choose these important officers in the way provided by their constitution and laws. Whether this view, however, be right or wrong, is not at all important in the present discussion. The validity of these elections is argued upon another ground, namely, that there was a voluntary assemblage of the people, by common concurrence, to elect representatives in Con- gress ; that they proceeded as nearly as possible according to the requirements of the State laws to make a choice ; and that there has since been a general acquiescence in the selection. If this were strictly true, still the election could not be supported, because " the times, places, and manner of holding elections for representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regula- tions;" provided that " when vacancies happen in the representation from any State, the executive thereof shall issue writs of election to fill them." Expressio unius exclusio alte- rius est. But what evidence is there that there was a free and voluntary election by loyal citizens, anxious to re-establish their former relations with the federal government by selecting repre- sentatives the most acceptable to themselves to the Congress of the United States? I wish I could believe that there had been such an election, evincive of the restoration to loyalty of the city of New Orleans. But independently of what we know concerning the disloyalty of a very great part of the inhabitants, it seems to me that the report of the Committee of Elections exhibits plainly the motive which drew them to the polls, and shows the moral coercion under which they voted. Mr. Bingham. * * * The Committee of Elections have made a report which does honor to their candor. I am constrained to differ with them in the conclusion at which they have arrived. They have had the integrity to say to the House in their report that the legis- lature of the State of Louisiana has by law declared that no person shall be a qualified elector within that State who does not take the oath of allegiance, not only to the State of Louisiana, which was well enough in itself, but the oath of allegiance to that infernal organization known as the confederate States of America. Mr. Dawes. Not quite that. That had reference to New Orleans ; but it may amount to that. Mr. Bingham. I am obliged to the chairman of the Committee of Elections for calling my attention to the language or meaning of the enactment. I never saw it, save in the committee's report, but I have no doubt the committee quote it correctly. I think the chairman is correct in his impression when he says it amounts to that. It unquestionably does amount to that. They have provided, and so the committee have reported, that no electors shall be registered unless they take the oath to support the constitution of the State and the constitution of the confederate States. Mr. Dawes. That was a registry applying to the city of New Orleans, and not to the State. I want to ask the gentleman if he considers that a constitutional and valid act ? Mr. Bingham. No, sir ; not as against the federal government or the loyal citizens of the United States. . Mr. Dawes. I would ask the gentleman, too, whether he is not in the habit of holding an unconstitutional act as of no force at all? Mr. Bingham. I agree that it is of no force as against the federal government or the loyal citizens of the United States. I desire to make this statement, however, about that provision, that so far as the State of Louisiana is concerned, that act repealed the pre-existing law upon the subject of elections and substituted a new law for it, and put into it the pro- vision which I have quoted as to the qualification of electors. CONTESTED ELECTION CASES IN CONGRESS. 453 I desire to say farther of that provision, that it is not directory, as are the provisions of the original act for a registry of voters. I do not see how any man can come to any other con- clusion than that it is a declaration of the legislature of the State of Louisiana that no person shall be registered, and, therefore, no person shall be a qualified elector within the registra- tion districts of that State who does not take an oath to support the confederate States of America ; in other words, who does not take an oath to support the confederation of thieves and traitors who hold their high counsels to-day in Kichmond. Now, I agree with the honorable chairman of the Committee of Elections that this pro- vision of the State law is void, so far as it touches the rights of any loyal citizen under the federal Constitution. Thank God ! such is the wisdom, scope, and effect of the federal Constitution, that though hand joins with hand to overthrow the rights of the loyal minority in any State, the humblest citizen who is true to his fealty is secure in his rights as a citizen of the federal republic under the guarantees of the Constitution, despite the conspiracy against him by the majority in his own State. Does any one, I respectfully inquire, disagree with me in this conclusion ? But how can a loyal minority in an insurgent State, whose local government is disorganized, elect representatives to Congress 1 All must agree that there can be no State organization ; there can be no State government ; there can be no State legislative enactments by which federal representatives may be elected under the federal Constitution save by the act of the people of the State. Who is there here to deny that proposition? Mr. Lovejoy. Does the gentleman mean that it requires the action of all the loyal people of a State to entitle any portion of the loyal people to a representative here ? Mr. Bingham. No, sir ; that is not my proposition. I said no such thing. My proposi- tion is, that there can be no State legislation under which representatives in the federal Con- gress can be chosen, except that State legislation originates with the people resident within the State. I have said already that rebels in arms have no right of representation, but those who resist rebellion in an insurgent State, and are sufficiently numerous to support a consti- tutional State government, and do support it, are entitled to representation in Congress. Mr. Kellogg, of Illinois. Do I understand the gentleman to argue that if the legislature of a State fails to provide the mode and manner of an election for Congress, or if the governor refuses to order an election, the people are disfranchised, and can have no representation here ? Mr. Bingham. No, sir ; I have stated the very contrary of that ; but I have stated that they can have no representation except in pursuance of federal law or State law. That is my position exactly. Mr. Kellogg, of Illinois. Then if both the State legislature and Congress fail to provide the time, manner, and mode of election, the people are disfranchised ? Mr. Bingham. I have already intimated that they are not disfranchised, but cannot exer- cise their right to elect representatives to Congress without a law of their own legislature or of Congress. If those chosen in a State as its representatives prove disloyal, unfaithful to their trust, and turn traitors and engage in conspiracy against the rights of the people of the State and of the whole country, then, in the language of the "Declaration," the power of legislation, incapable of annihilation, returns to the people ; but they must execute it first, assert their power of legislation if they would provide for an election of federal representa- tives in the absence of a law of Congress. Have they done it ? Mr. Lovejoy. Does the gentleman contest the point that this is the action of the loyal people in Louisiana ? Mr. Bingham. No, sir ; I have not contested that point at all, for I know nothing about, nor do I believe that any member of this house knows anything about that. If the people of Louisiana had, under an act of their own legislature, and by duly constituted officers of an existing State government, organized under the federal Constitution, held this election, I could not doubt that such election was the lawful act of the loyal people. But, sir, there is no organized constitutional State government in Louisiana, nor was this election held under the law or by the officers of such government of Louisiana, nor under a law of Congress. I therefore repeat my proposition : representatives can be elected to the federal legislature only in pursuance of an act of the State legislature, or of an act of the federal Congress. I wish to inquire when there has been any decision under the government of the United States, legislative or executive or judicial, to the contrary? Mr. Lovejoy. Well, when this governor was appointed for the very purpose of perform- ing the duties of the governor who ought to have been there, I want to ask the gentleman what objection there is to his setting in operation this State legislation which existed when the State was loyal ? Mr. Bingham. Mr. Speaker, I should like to know of the gentleman from Illinois whence he derived his information that the military governor was appointed for the purpose of exer- cising the legislative functions of the State ? Mr. Lovejoy. I did not say that. I said that he was appointed to discharge the duties of the civil governor. I suppose that is so. He was appointed by the military power, and derives the name of " military governor " simply because thus appointed ; but the object was that he should discharge the duties of the governor regularly elected. Now, why cannot he put in operation the State legislation necessary to secure an election of representatives in Congress ? 454 CONTESTED EJECTION CASES IN CONGRESS. Mr. Stevens. I should like to know from the gentleman under what part of the Consti tution this military governor was appointed to discharge the civil duties of the governor of that State? Mr. Dawes. I would like to know hy what provision of the Constitution a man is appointed guard to a company of rebel prisoners, as they pass up Pennsylvania avenue? Mr. Bingham. I object to being diverted from the subject of inquiry. I have asked the gentleman from Illinois, who has raised this question, whence he derived his information that any military governor has ever been appointed for Louisiana to exercise the powers of legislation? Mr. Lovejoy. I never made any such statement. Mr. Bingham. Then the gentleman's question was aside from my argument, which is that a federal representative can only be elected in an organized State, and pursuant to an act of the legislature of the State or of an act of Congress. Mr. Lovejoy. No, sir. Mr. Bingham. The gentleman will pardon me for saying that his suggestion was entirely aside from my argument. What I undertake to say here to-day is this : that no representa- tive can be elected to the Congress of the United States except in pursuance of the legislation of a State, or of the legislation ot the federal government. And in answer to the gentleman's suggestion, I wish to say further that a State election law, which by its terms requires State officers duly qualified to execute it, cannot be executed by a military governor appointed by the President. Mr. Lovejoy. My point is this: that either State or federal legislation being necessary, and there being no federal legislation, but there being State legislation, only no governor to put it into requisition, why cannot this military governor, who was appointed for that very purpose, put the State legislation in operation ? Mr. Bingham. Now, if my excellent friend had noticed what I said before, he would have had no occasion to ask his question at all, because that State legislation was repealed by the State legislature of Louisiana, and a provision was adopted, to which I have already adverted, requiring every elector in the district of Orleans to take the oath of allegiance to the Confederate States of America; and for the further reason that by the terms neither of the original statute of Louisiana nor of the treasonable statute of that State legislature could the election be held by a federal military governor. Assuming that the original elec- tion law of the legislature was not repealed, it prescribed the manner of its execution ; and while that remains the law of the State it must be followed until altered or repealed, and can only rightfully be repealed or altered by an act of Congress, or by an act of the legislature of Louisiana. The Constitution of the United States settles this. . Its words are: ' ' The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators." Congress did not by law alter either of these election statutes of Louisiana ; and no fed- eral military governor or other executive officer of the United States can alter those statutes. This election was in no respect held in the manner prescribed by either of the Louisiana statutes. Mr. Lovejoy. Mr. Speaker Mr. Bingham. The gentleman must excuse me. I want to make plain the point. Mr. Lovejoy. So do I. Mr. Bingham. Will the gentleman please excuse me? Mr. Lovejoy. I hope the gentleman will let me state r Mr. Bingham. I understand my friend from Illinois perfectly; and I intend to make the matter so plain that he cannot mistake my meaning, however much he may differ with me in conclusions. Mr. Lovejoy. I want to know if that legislation is valid? Mr. Bingham. I have answered the gentleman's question before. As against the rights of federal citizens, the treason enactment is void. As against the federal government it is void. As against the federal Constitution it is void. But I want to know if there is any man here who will stand up in his place and say that the people of a State may not, by law, if not of right, repeal all their laws on the subject of election; and I want to know how they are going to get rid of that repeal ? * * * I wish it understood that from the beginning of this argument to the end of it I have claimed that the loyal inhabitants in any organized State of the Union, even though a majority of its citizens be in insurrection against this government, have a right to their just proportion of representation in Congress. I want it understood, next, that in my judgment they cannot exercise that right of representation in Congress except by sending representa- tives here through the instrumentality of a State law appointing such elections, and in full force at the time, or in pursuance of a federal law. I understand that the legislature and people of Louisiana have not now, and had not when these elections were held, the law and the State officers necessary to hold a valid election for representatives in Congress. I under- stand, further, that Congress has not passed the necessary law. The question, therefore, is, whether there shall be representation without «"v law nnnnJk subject? T clanv thn.t t.hern CONTESTED ELECTION CASES IN CONGRESS. 455 can be ; and I deny it because the Constitution stands in the way, and because the power intrusted to representatives and senators in Congress is the highest power known to the sovereignty of the republic. It is the power of the whole people over the issues of life and death. It is a power, therefore, which should only be exercised as the Constitution has prescribed — under the forms and highest sanctions of law. Judges should receive the votes, should count them, and should certity to the result of the election, under the obligations of an oath, and under the penalties of law duly prescribed for a violation of that oath, in case they should violate it in any substantial particular. The House agreed to the resolutions of the committee (February 17) — yeas 92, nays 44. Note. — The debate will be found in volumes 47 and 48 of Congressional Globe. For the report: Mr. Dawes, vol. 47, page 831; ditto, vol. 48, page 1032; Mr. Maynard, vol. 47, page 855 ; Mr. Noell, vol. 47, page 861 ; Mr. Menzies, vol. 47, page 866 ; ditto, vol" 48, page 1011 ; Mr. Thomas, vol. 48, page 1015; Mr. Hahn, vol. 48, 'page 1030. Against the report : Mr. Voorhees, vol. 47, page 834 ; Mr. Porter, vol. 47, page 858 ; Mr. Eliot, vol. 47, page 860; Mr. Bingham, vol. 47, page 862 ; Mr. Yeaman, vol. 48, page 1012. THIRTY- SEVENTH CONGRESS, THIRD SESSION. , Cloud and Wing, of Virginia. Where there was a gross disregard of the legal requirements in holding an election, and but a small portion of the electors in a district had an opportunity to participate in the elec- tion, the committee and the House held that the election could not be recognized as valid. IN THE HOUSE OP REPRESENTATIVES. February 4, 1863. Mr. Dawes, from the Committee of Elections, made the following report : That the second district in Virginia is composed of the counties of Isle of Wight, Princess Ann, Norfolk county and Norfolk city, Nansemond, Surry, Sussex, Southampton, Greensville, Prince George, and Charles Citv. The election at which these gentlemen claim to have been elected took place on the 22d day of December, 1862, and resulted, according to the returns, in 645 votes for J. B. McCloud, 621 for W. W. Wing, 116. for L. C. P. Cowper, all others 20 votes — in all, 1,402 votes. The constitution of Virginia, article 3, section 4, requires that "in all elec- tions votes shall be given openly, or viva voce, and not by ballot, but dumb persons entitled to suffrage may vote by ballot." The committee have been furnished by General Viele with the following re- turn of election for a member of Congress to represent the second congressional district of Virginia, held on the 22d day of December, 1862, in pursuance of the proclamation of Major General Dix, commanding department of Virginia, and dated 8th day of December, 1862 : 456 CONTESTED ELECTI&N CASES IN CONGRESS. Precincts. a o 1-5 PL, o o 60 Court-house, city of Portsmouth, Norfolk county Capp's Shop precinct, Princess Ann county Kempsville precinct, Princess Ann county Tanner's Creek crossroads, Norfolk county City of Norfolk, Norfolk county Suffolk precinct, Nansemond county St. Bride's Parish precinct, Great bridge, Norfolk county Totals 193 72 25 42 285 1 3 486 2 5 76 81 12 59 12 26 1 14 "3 "i "*2 621 645 116 20 Total number of votes polled, 1, 402. Duplicate. EGBERT J. VIELE, Brigadier General and Military Governor. Headquarters Military Governor, Norfolk, Va., December 25, 1862. It was claimed by Mr. Wing, and admitted by Mr. McCloud, that at the St. Bride Parish precinct, where fifty-nine votes were cast for Mr. McCloud and three for Mr. Wing, the voting was by ballot instead of viva voce ; and that if these votes had been rejected in the count as illegal, being in conflict with the constitution of the State, that the result would have been 618 votes for Mr. Wing, and only 589 for Mr. McCloud, and that consequently Mr. Wing would be entitled to the seat. This is the basis of Mr. Wing's claim. The election is considered by both in all other respects legal and sufficient. But the committee have carried their inquiries further than the decision of this point, and the result is such as to render its decision wholly unnecessary. On the 8th day of December Major General John A. Dix, "commanding department of Virginia," issued the following proclamation calling for an elec- tion of a representative to Congress in this district on the 22d day of Decem- ber : PROCLAMATION. Whereas there is reason to believe that a majority of the legal voters in the counties of Norfolk and Princess Ann, constituting the larger portion of the second congressional dis- trict of Virginia, are, and have always been, at heart loyal to the government of the United States, and obedient to the laws thereof; and whereas, in view of the proclamation of the President of the United States of the 22d of September last, it is desirable that the loyal por- tion of States in rebellion should have the opportunity of being represented in Congress on the first of January next : Now, therefore, I, John A Dix, commanding the department of Virginia, do issue this my proclamation, declaring that an election by ballot shall be held on Monday, the 22d day of December instant, for a representative to fill a vacancy in the thirty-seventh Congress of the United States of America, in the 2d district of Virginia. Writs of election will be duly issued by Brigadier General Viele, military governor of Norfolk, and the elections held in the several precincts designated by law in the counties of Norfolk, Princess Ann, Nanse- mond, and Isle of Wight. The commissioners appointed, when duly notified, will appear and take the prescribed oath before the provost marshal, at the court-house in the city of Norfolk, or before the provost marshal at Suffolk. All white males of the age of twenty-one years and upwards, actual residents of the dis- trict, who shall not have refused, heretofore, to give evidence of their fidelity to the govern- ment, shall be entitled to vote. CONTESTED ELECTION CASES IN CONGRESS. 457 All persons entitled, and declining to vote, and who are not prevented by age, infirmity _' or other valid cause from performing their duty as citizens by voting under this proclama tion, will be regarded as hostile to the government, and subject to all the penalties of disloy alty. Given under my hand, at Fort Monroe, Virginia, this 8th day of December, 1862. JOHN A. DIX, Major General. And on the twelfth day of December Brigadier General Viele, military gov- ernor of Norfolk, issued the following proclamation : Headquarters Military Governor, Norfolk, Virginia, December 12, 1862. In accordance with the foregoing proclamation of Major General John A. Dix, command- ing the department of Virginia, I, Egbert L. Viele, brigadier general and military governor of Norfolk, do appoint the following named persons as commissioners of election at the places named : COUNTY OP NORFOLK. Norfolk City precinct. — William R. Jones, James Simmons, Simon Stone. Portsmouth City precinct. — Thomas W. Godwin, W. H. Lyons, W. F. Parker. St. Bride's Parish precinct. — Richard E. Nash, Washington Hall, LeRoy R. G. Edwards. Elizabeth River Parish precinct. — Peter Dilworth, George C. Cromwell, Hatton Williams. PRINCESS ANN COUNTY. Court-house precinct. — Newton Capps, Jeremiah Lane, Newton Hartley. Kempsville precinct. — James Burroughs, Dr. E. D. Cornick, Dr. James E. Bell. NANSEMOND COUNTY. Suffolk precinct. — G. W. Singleton, Robert M. Darden, E. A. Wingate. ISLE OF WIGHT COUNTY. Smithfield precinct. — Alexander Ashburn, S. G. Darden, Colonel W. Watkin. The commissioners will appear and qualify as above. The returns will be duly authenticated, sealed, and delivered to me at these headquarters within three days subsequent to the election. Given under my hand, at the city of Norfolk, this the 12th day of December, 1862. EGBERT L. VIELE, Brigadier General and Military Governor. Francis H. Pierpoint, governor of the Commonwealth, issued writs of election bearing date December 12, 1862, of which the following is a copy : To the sheriff, or any constable, or to any three freeholders in the county of Isle of Wight, Virginia ; Whereas the voters of the second congressional district of Virginia, composed of the coun- ties of Isle of Wight, Princess Ann, Norfolk county, Norfolk city, Nansemond, Surry, Sus- sex, Southampton, Greensville, Prince George, and Charles city, failed to elect, on the 23d of May, 1861, a representative to the thirty-seventh (37th) Congress of the United States, and that you meet and make return, according to law, the third day thereafter. You are hereby required, having first taken the oath or affirmation prescribed by existing laws, to hold an election to supply the vacancy aforesaid, at the several places of voting in Isle of Wight county, on Monday, the twenty-second day of December, 1862, or such other day as you may appoint, and of which you shall give due notice ; and full authority is hereby conferred on you to do and provide whatever may be necessary for the purpose. r -, Given under my hand and the less seal of the Commonwealth, at the city of LL. S.J wheeling, this twelfth day of December, 1862, and in the eighty-seventh year of the Commonwealth. F. H. PIERPOINT. By the Governor : L. A. Hagans, Secretary of the Commonwealth. 458 CONTESTED ELECTION CASES IN CONGRESS. Only four of these writs could be traced, and these were brought from Wheeling, the governor's residence, by "Adjutant General Samuels," to Nor- folk, on the Saturday preceding the election, which was on Monday, and deliv- ered, as stated to Mr. Wing, on Sunday, and by him delivered to the officers of four voting precincts before midnight of that day. When first issued, the writs called for an election on Saturday, the twenty-seventh of December; but they were afterwards altered by erasure to Monday, the twenty-second day of December. When, and by whom, or by what authority of law, these alter- ations were made is not known to the committee. The returns were made to the office of General Viele, in Norfolk, and the result there declared. It is difficult to imagine a proceeding so entirely in disregard of the require- ments of the law of this State as this election. Whether authority for it be Bought in the proclamation of Major General Dix, "commanding the department of Virginia," or in that of Brigadier General Viele, "military governor of Nor- folk," or in the writs of election issued by Francis H. Pierpoint, governor of the Commonwealth of Virginia, or in all three combined, it is equally in con- flict with the plainest provisions of the law of the State. What territory in Virginia the " department of Virginia " embraces the committee are not informed ; so that they are unable to say that it did or did not embrace the second con- gressional district. The committee are also ignorant of the source from whence General Dix obtained authority to call an election at all. He does not purport to call it as military governor, who is clothed to some extent with civil as well as military powers. The committee are not aware that General Dix assumes to discharge any other civil functions whatever. But the proclamation itself undertakes to prescribe the qualifications which alone would entitle a man to vote at this election, when the Constitution of the United States and of Vir- ginia have fixed the qualification of voters for representative to Congress, and these qualifications cannot be added to or taken from. Article 1, section 2, of the Constitution of the United States is as follows : The House of Representatives shall be composed of members chosen every second year by the people of the several States,, and the electors in each State shall have the qualifica- tions requisite for electors of the most numerous branch of the State legislature. And the constitution of Virginia provides, article 3, section 1 : Every white male citizen of the Commonwealth, of the age of twenty-one years, who has been a resident of the State for two years, and of the county, city, or town where he offers to vote, for twelve months next preceding an election, and no other person, shall be qualified to vote for members of the general assembly. And section 4 provides, as already cited, that "in all elections votes shall be given openly, or viva voce, and not by ballot." A comparison of these several provisions with the proclamation of General Dix will show the departure and conflict without any comment or inquiry into the authority for issuing it. The proclamation of General Viele seems to have been in aid of that of General Dix. It is issued by him as "military governor of Norfolk." The committee have failed to obtain the instructions to General Dix in this matter, and are equally ignorant of the extent of jurisdiction of the military governor of Norfolk. If anything can be learned from his title, it is confined either to the city or county of Norfolk. If that be so, he could hardly interfere in this election with the counties of Princess Ann, Nansemond, or Isle of Wight. But he not only appointed commissioners of election in the county of Norfolk, but also in the other counties already named, and required all from all these counties to make returns to "these headquarters within three days subsequent to the election." The statutes of Virginia require these commissioners to be appointed by the court of each county, and require them to make returns to the clerks of the county courts of their respective counties, and they to the clerk of the county of Isle of Wight, and he declares the result. But it seems that this proclama- CONTESTED ELECTION CASES IN CONGRESS. 459 tion, like that of General Dix, was confined to four out of the eleven counties of this district. There is no authority of law for this selection, and it is sup- posed to have been induced by necessity, the remainder of the district being "within the rebel lines. But whatever the reason, the House cau at once see the danger if it were permitted. If certain counties may be selected in a district, and others omitted in the issue of writs of elections, then the control of the representation must rest with the power of selection. It should be sufficient, however, that the law does not sanction any such selection, and re juires the issue of writs to the proper officers of all the counties. But the writs of Francis H. Pierpoint, governor of the Commonwealth of Virginia, were also issued in this case, as has been already said. There were none of them sent to any county in the district except the four already named, and, therefore, all that has been said touching the same proceeding, under the proclamations of General Dix and General Viele, has equal force here. But these writs, although bearing date the 12th of December, and calling originally for an election upon Saturday, the 27th day of December, were first brought into the district on Saturday, the 20th, and delivered on Sunday, the 21st, to one of the candidates, for distribution, and then by erasions and insertions made at some time — the committee do not know when — they became writs for an election on the next day, that is on Monday, the twenty-second day of Decem- ber, and they were so distributed that day. Now, it is expressly enacted by the statutes of Virginia that " every officer to whom a writ of election is directed shall, at least ten days before such election, give notice thereof, and of the time of the election, by advertisement at each place of voting in his county or cor- poration." With this plain and express provision of law before them the com- mittee are at a loss for any explanation of the reason of delivering these writs on Sunday for an election the next day, except that given to the candidate at the time of their delivery by General Samuels, the messenger who .brought them, as stated to the committee by Mr. Wing himself, viz : " to give a semblance of legality to the election." Whatever may have been the reason for this proceeding, the proceeding itself will have a tendency to invoke the closest scrutiny on the part of the House into the regularity of each successive step in all elections held under the circumstances which attend this. But turning from an examination of the conformity to legal requirements in this election to the question whether the voters of this district, conforming as nearly to law as possible, have, unrestrained and unawed by the presence of any considerable rebel force, had full and fair opportunity to express their choice of a representative, the committee find that but 1,402 votes in all were cast in a district usually polling about 10,000 votes ; that of the eleven counties composing this district polls were opened in only four of them, and not in every precinct in these four, for the reason that they were in the armed occupation of the rebels. No polls could, therefore, be opened, and not a single voter — be the number what it may in this much the greater portion of the district — could cast a vote, or in any way have a voice in the selection of a representative. According to the uniform rule adopted by the committee and sustained by the House this has failed, in any just sense, to be the election of a representative from the second district in Virginia. The committee, therefore, report adversely upon the right of either claimant to the seat, and recommend the adoption of the accompanying resolutions : Resolved, That J. B. MeCloud is not entitled to a seat in this house as a representative from the second congressional district in Virginia. Resolved, That W. W. Wing is not entitled to a seat in this house as a representative from the second congressional district in Virginia. The House agreed to the resolutions of the committee without debate. 460 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-SEVENTH CONGRESS, THIRD SESSION. McKenzie, of Virginia. The statutes of Virginia having been violated in fixing the time of the election, and no election having been held in seven out of nine counties in the district, the committee and the House held that the election was not valid. IN THE HOUSE OF REPRESENTATIVES, February 9, 1863. Mr. Dawes, from the Committee of Elections, made the following report : That said district is composed of the counties of Spottsylvania, Alexandria, Fairfax, Fauquier, Prince William, Rappahannock, Oulpeper, Stafford, and King George. The election at which Mr. McKenzie claims to have been elected was held on the fifteenth day of January of the present year. The committee have been furnished with the following statement of the result, which they have no doubt is correct : Statement of the result of the special election held in the counties composing the seventh congressional district of Virginia, on the fifteenth day of January, in the year one thousand eight hundred and sixty-three, for a representative in the thirty-seventh Congress of the United States, to Jill a vacancy existing therein. Candidates. COUNTIES. Alexandria. Fairfax. Total. Lewis McKenzie . . . Andrew Wylie Charles H. Upton . . Chauncy H. Snow . Gilbert S.Miner... 207 54 36 30 20 161 35 9 2 227 215 71 39 2 Total result. 327 227 554 Total number of votes, five hundred and fifty-four - r 554 Majority for Lewis McKenzie, twelve 12 No returns have been received from eight counties ; presume that no polls were opened in said counties. Teste : JEFFERSON TACEY, Clerk. A copy of a certificate of the result accompanies this report, which constitutes Mr. McKenzie's credentials. The election was held under writs of election issued by Governor Pierpoint, bearing date December 13, 1862, of which the following is a copy : To Thomas J. Edlen, special commissioner for Alexandria county : "Whereas the voters of the seventh (7th) congressional district of Virginia, composed of the counties of Alexandria, Spottsylvania, Fairfax, Fauquier, Prince William, Rappahannock, Culpeper, Stafford, Orange, and King George, failed to elect a representative to the thirty- seventh (37th) Congress of the United States on the 23d of May, 1861 , you are hereby re- quired, having first taken the oath or affirmation prescribed by existing laws, to hold an election to„ supply the vacancy aforesaid, at the several places of voting in Alexandria CONTESTED ELECTION CASES IN CONGRESS. 461 county, on Wednesday, the 31st day of December, 1862, or such other day as you may ap- point, and of which you shall give due notice ; and full authority is hereby confeire.d on you to do and provide whatever may be necessary for the purpose. Given under my .hand and the less seal of the Commonwealth, at the city of [L. S.] Wheeling, this thirteenth day of December, 1862, and in the eighty-seventh year of the Commonwealth. F. H. PIERPOINT. By the Governor : L. A. Hagans, Secretary of the Commonwealth. These writs ordered an election upon the 31st day of December, 1862, " or such other day as you may appoint." They were not delivered in the district till the evening of the 21st of December. The statutes of Virginia (Code, ch. 7, sec. 17) require "each officer to whom a writ of election is directed shall, at least ten days before such election,- give notice thereof, and of the time of the election, by advertisement, at each place of voting in his county or corporation." It became an impossibility to give the required notice for the 31st after the re- ceipt of these writs, on the night of the 21st. Accordingly, the person to whom the writ for Alexandria county was directed, and the person to whom that for Fairfax county was directed, met on a subsequent day, and fixed upon the 1 5th of January for the election, and gave the notices in their respective counties accordingly. The only authorityjor this alteration of the time is in the writ itself, as follows : "or such other day as you may appoint." No authority of law for giving any such power to the commissioners was shown or claimed be- fore the committee ; on the contrary, the statutes of Virginia (Code, ch. 7, sec. 16) expressly declares that the writ " shall prescribe the day of election to be the same throughout the district." The committee are of opinion that this power, thus fixed by law in the governor, cannot be by him delegated to any one else ; and for this reason the election held on the fifteenth of January was without any sanction of law. If it were possible that this power could be del- egated, still'the committee find that the day was agreed upon by the commis- sioner of Alexandria and of Fairfax counties alone, without regard to those in the seven other counties composing the district. The law is imperative that the day shall be the same throughout the district; yet if the commissioners in any two of the counties can fix upon a day, the same may be done by any other two, and the utmost confusion would be certain to enBue. The committee were unable to sanction any such proceeding. On the 23d of January, eight days after this election was held, the legisla- ture of Virginia passed the following act : AN ACT providing for the return of the special election for a representative in the seventh congressional district, held on the 15th day of January, 1863. — Passed January 23, 1863. Be it enacted by the general assembly, That the clerk of the county court, authorized by law to make returns of the elections held on the 15th day of January, 1863, for a represent- ative in Congress for the seventh district, be, and is hereby, authorized and required to ascertain the result, and grant certificates therefor at any time within the thirty days allowed therefor. 2. This act shall be in force from its passage. I, Gibson L. Cranmer, clerk of the house of delegates and keeper of the rolls, do hereby certify that the above is a correct copy of "An act for the return of the special election for a representative in the seventh congressional district, held on the 15th day of January, 1863," as enrolled, and in my possession. Given under my hand this 27th day of January, 1863. GIBSON L. CRANMER, Clerk of the House of Delegates and Keeper of the Rolls. It was claimed by Mr. McKenzie that this legislation ratified and confirmed the action of these two commissioners in fixing upon the 15th of January for holding this election. But the committee were of opinion that the act had reference wholly to the time of making a return, and simply authorized the ascertainment and declaration of the result in less time than thirty days — the 462 CONTESTED ELECTION CASES IN CONGRESS. time required before the passage of the act. And, furthermore, if the legisla- ture had undertaken to ratify or confirm an election held without authority of law, the act would so far have been of no effect; and it .would be just as com- petent for the legislature to now enact by statute that Mr. McKenzie is the lawful representative of the district as to make legal by statute an election for which, when held, there was no authority of law. But the committee went further, and inquired, as in all other cases, into the character of the election itself, and find that, in point of fact, there was no election in seven out of the nine counties composing this district; that an election in nearly all the other counties would have been an impossibility, for they are all, with a trifling exception, in the aimed occupation of our own and the rebel armies, mostly of the rebel army. It appeared that a writ for this election reached the sheriff or other proper officer of Prince William county, who was the next day himself arrested by the rebels, and taken with his writ to Rich- mond, where he is now confined in prison. However loyal the people of these counties may be, they have had no opportunity to testify that loyalty at the ballot-box. While seven-ninths of the district is under duress, the action of the other two-ninths can never be taken as the choice of the district. At the election in 1857 for representatives, this district cast 9,273 votes, and is believed to have been larger in 1859. On this occasion there were cast, in all, only five hundred and fifty -four votes ; of which Mr. McKenzie had only two hundred and twenty-seven. That a large part of the voters are absent from the district is very probable; but until the opportunity can be given those who remain, be they many or few, to vote, there can, in the nature of things, be no election. According to all the precedents laid down by the committee, and adopted by the House, they are compelled to report against the validity of this election. They therefore recommend the adoption of the accompanying resolution : Resolved, That Lewis McKenzie is not entitled to a seat in this house as a representative from the seventh congressional district in Virginia. The resolution was adopted. THIETY-SEVENTH CONGRESS, THIRD SESSION. Eodgers, of Tennessee. IN THE HOUSE OF REPRESENTATIVES, February 9, 1863. Mr. Dawes, from the Committee of Elections, made the following report : That Mr. Eodgers claims to have been elected to this house in November, 1861, from a district in Tennessee, made up in part of the counties embraced in the district now represented by Mr. Maynard, (the 2d,) and in part of counties embraced in the district now represented by Mr. Clements, (the 4th.) These gentlemen were elected in August, 1861, and subsequently to their election, the committee are informed by Mr. Eodgers that the State was redistricted by the rebel legislature for the so-called Confederate Congress, and an election in these new districts was held for the Confederate Congress in November following. It is claimed by Mr. Eodgers that at this election votes were cast for him as a representative to this Congress ; and it is by virtue of these votes that he now claims a seat. All the evidence submitted by Mr. Eodgers in support of hia claim accompanies this report. The committee have found no foundation for CONTESTED ELECTION CASES IN CONGRESS. 463 the claim, and, referring the House to the accompanying papers, do not deem further comment necessary. They accordingly report the following resolution : Resolved, That John B. Rodgers is not entitled to a seat in this house as a representative from the State of Tennessee. The resolution was agreed to without debate or division. THIRTY-SEVENTH CONGRESS, THIRD SESSION. Jennings Pigott, of North Carolina. A majority of the counties of the district were occupied by armed rebels. The election was held to be invalid. To be an inhabitant of a State is, if not to be a resident or citizen, something more than to be a sojourner. IN THE HOUSE OF REPRESENTATIVES, February 14, 1863. Mr. Dawes, from the Committee of Elections, submitted the following report : That they have heard the said Pigott in support of, and the said Foster against, said claim, and have examined all the testimony which has been adduced on either side. It ia claimed by Mr Pigott that he was elected upon the first day of January of the present year, by virtue of a proclamation (Mis. Docs. Nos. 13 and 14) issued by Edward Stanly, military governor of North Carolina, on the tenth day of December last, in the second district of North Carolina, composed of the counties pf Wayne, Edgecomb, Green, Pitt, Lenoir, Jones, Onslow, Carteret, Craven, P»gaufort, and Hyde. The view taken by the committee of all the facts of this case, as they were made to appear, rendered it unnecessary to inquire how nearly in conformity to the forms of law this election had been conducted, or what were the powers of the military governor who issued the proclamation under which it was held. For this reason they do not trouble the House with citations from the North Carolina law of elections, or with arguments upon the powers of a military " governor. The whole number of votes cast was 864; of these Mr. Pigott had 595 votes; all others, 2G9 votes. There was no voting at all in but three of the eleven counties composing the district, and in one of these in but a single precinct. There were many voting places in these three counties where no polls were opened or notice taken of the election. In some of these no suf- ficient reason was shown why they were omitted from participation ; but in most of them in these three counties the presence of armed rebels and incur- sions of guerillas rendered the attempt wholly impossible. The remaining eight counties were almost, if not entirely, in the armed occupation of the rebels. It was frankly admitted by Mr. Pigott that the number of loyal voters in the district who, for this reason, had no opportunity to cast their votes at all, was greater than the number who had any such opportunity. According to the rules adopted by the committee in all similar cases, and steadily adhered to by the House, this puts an end to the case. Mr. Pigott can in no just sense be deemed the choice of the loyal voters of a district in which more than half of them had no opportunity to express that choice. Voters may voluntarily stay away from the polls, and they are thereby taken and deemed to have acquiesced in what was done by those who are present. But no such presumption rests upon those who are under duress ; and it can never be known that they would not have rnade choice of another if the iron grasp of the rebellion had been unloosed. 464 CONTESTED ELECTION CASES IN CONGEESS. It was claimed that Mr. Pigott -was not, at the time of the alleged election, an inhabitant of North Carolina, and therefore not eligible to the office of repre- sentative within the meaning of the second section of the first article of the Constitution of the United States, which provides that " no person shall be a representative who shall not have attained to the age of twenty-five years and been seven years a citizen of the United States, and who shall not when elected be an inhabitant of the State in which he shall be chosen." Mr. Pigott, although a native of North Carolina, had resided in the city of "Washington for the last ten or eleven years, owned real estate here, dwelt with his family in his own house here, and had on more than one occasion voted here for municipal officers. After Mr. Stanly was appointed military governor of North Carolina, Mr. Pigott was appointed his private secretary, and, renting his house in Washington, went to North Carolina in that capacity, and had remained there as such private secretary two or three months when this election took place. He had done nothing since his return to the State to indicate a permanency of abode there beyond what is here stated. The committee are of opinion that to be an inhabitant within the meaning of this section of the Constitution, if it does not mean resident or citizen, certainly means more than sojourner, which is all that can be claimed for Mr. Pigott. In the case of John Bailey, (Contested Election Cases, 411,) who was elected a representative from Massachusetts while a clerk in one of the departments in Washington, where he had been for six years, although a native of Massachusetts, it was decided that he had ceased to be an inhabitant of Massachusetts within the meaning of the Constitution. And the able report of the committee in that case, adopted by the House, defines the word inhabitant, in this connexion, to be " a bona tide member of the State, subject to all the requisitions of its laws and entitled to all the privileges and advantages which they confer." la the opinion of the committee, the sojourn of Mr. Pigott in North Carolina, for the temporary and transient purpose of being private secr%tary to a military governor, was not an inhabitancy within this definition. For these reasons- the committee report against the right of Mr. Pigott to a seat in this house as a representative from North Carolina, and recommend the adoption of the following resolution : Resolved, That Jennings Pigott is not entitled to a seat in this house as a representative from the second congressional district in North Carolina. A very brief debate occurred in the House upon this case, which will he found in vol. 47, Congressional Globe, pages 1210 and 1211. The House agreed to the report without a division. THIETY-SEVENTH CONGEESS, THIED SESSION. Mr. Grafflin, of Virginia. The governor of Virginia must fix the time of an election to fill a vacancy, and cannot delegate that power to another. The election was partial, and not valid. IN THE HOUSE OP EEPEESENTATIVES, February 23, 1863. Mr. Dawes, from the Committee of Elections, submitted the following report That said district is composed of the counties of Frederick, Page, Warren Clarke, Berkeley, Jefferson, Hampshire, Morgan, and Loudon. Writs of election were issued by the governor of the Commonwealth, bearing date the CONTESTED ELECTION CASES IN CONGRESS. 465 13th of December, 1862, ordering an election of representative in this district on the 31st of said December. These writs Were placed in the hands of Mr. O. D. Downey, who was instructed to visit the district and determine, from actual observation, whether the district was in a condition to hold an election at the time fixed in the, writ; and if, from the presence of rebels or other causes connected with the war, he should deem an election at that time impracticable or unsafe, to appoint such other day as, in his judgment, would be, under all the circumstances, most suitable and proper. On the arrival of Mr. Downey in the district he found the condition of the people so unsettled (a strong force of the enemy occupying several of the counties, and in the immediate neighbor- hood of others, threatening those desirous of exercising the elective franchise) that he deemed an election upon the day fixed in the writ wholly impracticable. He accordingly fixed upon the 5th of January, 1863, as the time for holding this election. At that time there were cast in the county of Morgan 158 votes for Mr. Grafilin, and 58 for Joseph S. Wheat; in the county of Berkeley 115 votes for Mr. Grafflin ; and in the county of Hampshire 69 votes for Mr. Graf- flin, and 2 votes for Mr. Wheat ; 342 votes, in all, for Mr. Grafflin, and 60 votes for Mr. Wheat — a total of 402 votes. No votes were cast in any other county, and in but two precincts in Hampshire and one in Berkeley. In the counties of Frederick, Page, Warren, Clarke, Loudon, and Jefferson, six out of the nine composing the district, there were no votes cast. Of some of these counties the rebels had armed occupation, and into others guerilla bands were constantly making incursions, filling the people with terror, and threatening; with imprisonment all who should participate in this election. To open the polls under such circumstances in these counties would have been worse than a farce : it would have been an invitation to the rebels to visit with violence the peaceful and loyal citizens so situated that our forces could not protect them. This case comes within the precedent established in the recent case of Lewis McKenzie claiming a seat as a representative from the seventh district in Vir- ginia by virtue of an election precisely similar to this. The laws of Virginia require the governor to fix in his writ the time for holding an election to £11 a vacancy, and nowhere authorize him to delegate that power to another. The election itself, had the day upon which it was held been authorized by law, like that in the case of McKenzie, already alluded to, was not a general election in the whole district, but only a partial and imperfect one, in which much the largest portion of the voters of the district took no part and had no opportunity to take part. No notices were served and no polls opened ; and if there had been, no voter could, with safety to his property, his liberty, or his life, have voted in much the largest portion of the district. The committee regret that they canuot find any ground for pronouncing this an election in any just sense of that term. After a careful revision of the decision to which they arrived in the case of McKenzie, already stated, which was sustained by the House, they see no occasion to question its correctness, and they therefore report the accompanying resolution, and recommend its adoption : Resolved, That Christopher L. Grafflin is not entitled to a seat in this house as a lepre- sentative from the eighth congressional district of Virginia. The House agreed to the report without a division. H. Mis. Doc. 57 30 466 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-SEVENTH. CONGRESS, THIRD SESSION. Hawkins, of Tennessee. There was nonconformity to law, and a partial election ; it was therefore held not valid. IN THE HOUSE OF REPRESENTATIVES, February 28, 1863. Mr. Dawes, from the Committee of Elections, made the following report : The ninth congressional district in Tennessee is composed of the following counties, viz : Carroll, Dyer, Gibson, Henderson, Henry, Lauderdale, Obion, Tipton, and Weakley, nine in number. This election was held on the 29th of December, 1862, pursuant to writs of election issued by Andrew Johnson, military governor of Tennessee, and the result appears in the several papers y which accompany this report, and which constitute the credentials of Mr. Haw- kins. The statement of Mr. Hawkins himself, in support of his claim, also accompanies this report. The history of the efforts' of the loyal voters in this district to secure repre- sentation in Congress, resulting as appears in these credentials, is peculiar. This history appears in the very fair and candid statement of Mr. Hawkins, made to the committee, which accompanies this report. The first effort was entirely spontaneous, the voters speaking through a convention voluntarily assembling in very respectable numbers, and acting entirely from its own im- pulses, and according to its own regulations. This convention appointed the 13th of December the time for holding this election, "unless the governor, prior to that time, issued writs of election," nominated Mr. Hawkins as its can- didate, and set in motion the machinery of a canvass. The district was at this time comparatively free from armed rebel's, and the people seemed, in all parts of the district, to be moving with alacrity and earnestness to assert this the highest privilege of the citizen. Just before the 13th, however, the proclama- tion of Governor Johnson, and corresponding writs of election, arrived in the district, ordering an election on the 29th instead of the 13th December. The attempt was made to communicate this proclamation and these writs to all the counties in the district before the 13th of December, but in several of the coun- ties it failed, and in these an election was held in accordance with the resolution of the convention. The votes were almost entirely for Mr. Hawkins, but how many were cast it is impossible to ascertain ; and it is equally unnecessary, for it is not upon this election that Mr. Hawkins relies for his right to a seat here, and he has accordingly furnished no evidence of the number of votes cast at tnat time. But from the evidence before the committee it was apparent that had there been no interruption there would have been, at that time, a sponta- :- neous election in that district, so general and full, approaching so nearly to an expression of the whole people, that a new and highly interesting, as well as difficult, question would have presented itself for decision. But on the 29th of December, the time at which the election was ordered by Governor Johnson, quite a different state of things existed in the district. The proclamation of Governor Johnson became known to the rebels, and, in order to prevent the holding of this election, the rebel General Forrest made a raid into this district! just before the 29th, and on the day of the election occupied almost all of it, ' except a small portion from which the returns have Deen presented, and which accompany this report. The Union forces also marched into the district to CONTESTED ELECTION CASES IN CONGRESS. 467 meet him, and General Hurlburt issued a military order postponing the election to some future day. Between the Union and' the rebel armies every part of the district was either under the armed occupation of contending armies, or in such a state of commotion that freedom of election became an impossibility. Where the military order of General Hurlburt postponing the election did not reach, attempts were made to vote. A battle was fought on the very day on which the election was to be held, and in sight of the polls. One sheriff was seized by the rebels, his writs of election taken from him and destroyed:, and he compelled to give bond not to bold an election at all, and to destroy any returns which were sent to him. Mr. Hawkins himself was driven from the district and State, and only returned after the day of the election at the greatest peril. On his return he gathered up himself, as well as he was able, such returns as are here presented, and procured, from the general commanding at that post (General Sullivan) " special order No. 29," which accompanies this report as a certificate. Too much praise cannot be awarded the Union men of that district for their constant and unwavering devotion to the cause of their country through suffer- ing and peril which none but heroes would endure without complaint ; and in all the. qualities for which this people command our admiration, Mr. Hawkins has shown himself to be their fit representative. The committee have struggled to find some way to give effect to this effort to secure representation ; but they have not been able to bring it within any of the rules adopted by the House in determining the election cases which are analo- gous to this. How far the election was conducted at the polls in conformity to the law of Tennessee it has been impossible to ascertain. No one would expect to find or should require rigid conformity under the peculiarly trying circum- stances under which this attempt was made. But the evidence of any votes at all will be seen, by a reference to the accompanying papers, to be of the most vague, uncertain, and unsatisfactory character. The committee have but to call attention to one or two of these papers. An unofficial person, A. G. Shrews- bury, certifies that he has seen the return of votes in Henderson county, and that " there were over seven hundred votes polled in that county, over seven hundred of which were for Alvin Hawkins, and the balance, numbering some twenty or thirty, were scattering, and for other persons." This comes, so far as appears, from a private citizen, and has not even the sanction of an affidavit. In : no sense can it be taken as evidence. Of a similar character is what pur- ports to be a return from Chestnut Bluff, a precinct in Dyer county, to which the committee call attention. These papers are the bases of the certificate of General Sullivan. The law requires all the returns to be made to the governor, and he is to make the certificate. It was impossible for this to be done, and Governor Johnson has furnished nothing. The committee are of opinion that it would be a very unsafe precedent, sure to be fruitful of mischief, to take, as evidence of an election, the papers here presented. Mr. Hawkins himself was driven from the district and has no personal knowledge of the facts. He has letters from highly respectable citizens corroborating, to some -extent, these papers ; and whjle, as matter of fact, the House may not doubt that these trans- actions have taken place, yet it would be most dangerous to take, as legal proof of an election, the papers here presented. Although the evidence, as far as it goes, tends to show that 1,900 votes were cast, nearly all for Mr. Hawkins, yet it also appears that a very small part of the district participated in this election. Some parts had already voted on the 13th ; some had postponed still further the day of election, under the military order of General Hurlburt, but more was at the very moment under the control and occupation of contending armies in battle array, in which an election was an impossibility. Under these circumstances, if it be taken as satisfactorily shown that 1,900 votes were polled, that fact mnat, be taken along with the 468 CONTESTED ELECTION CASES IN CONGRESS. other that they were polled in a very small part of the district, and that much the greater portion of it, for the reasons stated, had no part or lot in the matter. The district at the last election for representative cast 18,000 votes. The committee are again compelled to come to the same conclusion they have reluctantly arrived at in other cases, adverse to the right of Mr. Hawkins to a seat in this house upon the state of facts presented to them, and which they herewith report. They accordingly recommend the adoption of the accompa- nying resolution : Resolved, That Alvin Hawkins is not entitled to a seat in this house as a representative from the ninth district in Tennessee. The resolution was agreed to March 3, 1863, without debate or division. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Committee of Elections. Mr. Dawes, Massachusetts. Mr. Scofibld, Pennsylvania. Voorhees, Indiana. Smithebs, Delaware. Baxter, Vermont. Upson, Michigan. Smith, Kentucky. Brown, Wisconsin. Ganson, N^ew York. McKenzie vs. Kitchen, of Virginia. A large part of the district not participating in the election, it being at least partially within the military control of rebels, the election was not recognized as valid. IN THE HOUSE OF REPRESENTATIVES, February 8, 1864. Mr. Dawes, from the Committee of Elections, made the following report : That they have had said credentials and memorial under consideration, and have examined proofs and heard the statements and arguments of both the gen- tlemen claiming to have been duly elected as the representative from this district, and find the facts to be as follows : The memorial of Mr. McKenzie is in Miscellaneous Document No. 12, and Mr. Kitchen's credentials are annexed to this report. These gentlemen claim to have been elected on the fourth Thursday of May last, the day prescribed by law for holding elections for State ofScers and representatives in Congress. The State was divided into districts for the election of representatives in Congress, in conformity to the act of Congress upon that subject, by the legislature of Vir- ginia, on the 30th day of January, 1863, and by that act this district was com- posed of the counties of Alexandria, Berkeley, Frederick, Shenandoah, Jeffer- son, Clark, Warren, Loudon, Fauquier, Fairfax, and Prince William. The following is the result of that election, as far as known : seventh congressional district. For Lewis McKenzie. — Alexandria, 252; Fairfax, 175; Prince William, 49; Loudon, 205; Jefferson, (Harper's Ferry,) 33; Berkeley, 2. Total, 716. For B. M. Kitchen. — Alexandria, 61 ; Fairfax, 120 ; Jefferson, (Shepherds- town,) 51; Berkeley, 730. Total, 962. CONTESTED ELECTION CASES IN CONGRESS. 469 For Upton. — Alexandria, 40 ; Fairfax, 55 ; Loudon, 8 ; Jefiersan, (Shep herdstown,) 1; Berkeley, 7. Total, 111. For Gallagher. — Alexandria, 11 ; Loudon, 2 ; Jefferson, (Harper's Ferry,) 252 ; Berkeley, 3. Tola], 268. For Minor. — Alexandria, 1. Total, 1. For Massey. — Alexandria, 1. Total, 1. From this result it appears that if all the votes thus caat were taken into the account as duly cast for representatives in Congress for this district, Mr. Kitchen received a plurality of two hundred and forty-six votes over Mr. McKenzie, and if there were no other objections, would be entitled to the seat. But the claimant, McKenzie, by his notice of contest, (Miscellaneous Document No. 12,) contends that Berkeley county, wh.re Kitchen received a large vote, and with- out whieb^he would be in a small minority, was, on the day of election, no part of the seventh congressional district of Virginia, but was at that time a part of West Virginia, and-consequently not entitled to vote for a representative in this district. This claim is founded on the following legislation, viz : An act of the legislature of Virginia passed May 13, 1862, giving consent of that State to the formation of a new State within the jurisdiction of the State of Virginia, the second section of which provided " that the consent of the legis- lature of Virginia be, and the same is hereby given, that the counties of Berkeley, Jefferson, and Frederick shall be included in and form a part of the State of West Virginia, whenever the voters of said counties shall ratify and assent to the said constitution at an election held for that purpose at such time and under such regulations as the commissioners named in said schedule may prescribe ;" an act of Congress passed December 31, 1862, admitting West Virginia into the Union ; an act of the legislature of Virginia passed January 31, 1863, giving further consent of that State to the admission of Berkeley county into the State of West Virginia ; and an act passed by West Virginia August 5, 1863, admitting the county of Berkeley, and making it a part of that State. Under the .first of these acts of the State of Virginia it does not appear that anything was done by the voters of Berkeley, Jefferson, and Frederick, to " ratify and assent to the said constitution" of West Virginia, as provided in that act ; and if not, of course the act had no effect in transferring the county of Berkeley to West Virginia. If they did proceed to " ratify and assent" as therein required, still neither of these counties is embraced in the act of Con- gress admitting West Virginia, passed December 31, 1862. The second act of the State of Virginia, giving further assent to the admission of Berkeley alone into the State of West Virginia, passed January 31, 1863, was dependent for its effect upon two conditions precedent contained in the act itself: First, that on the fourth Thursday of May, 1863, a majority of the voters of Berkeley should so decide. And secondly, that the legislature of West Virginia, after this result is certified to it by the governor of Virginia, shall admit the same into the State of West Virginia. The language of the statute is as follows : " If a majority given at the polls opened and held pursuant to this act be in favor of the said county of Berkeley becoming a part of the State of West Virginia, then shall the said county become a part of the State of West Vir- ginia when admitted into the same with the consent of the legislature thereof." Now, the consent of the legislature of West Virginia to the admission of the county of Berkeley into that State was not given until August 5, 1863 ; (see act of the legislature of West Virginia of that date.) Until that day, therefore, it was no part of the new State. By no construction, then, can it be held that on the 28th day of May, when this election was held, Berkeley was a part of West Virginia. But there is a further objection to this claim of Mr. McKenzie. The act of Congress admitting West Virginia into the Union enumerates the coun- ties of the old State which shall compose the new one — and Berkeley is not one of them. Congress has never consented tn tKo transfer of the county of Berke- 470 CONTESTED ELECTION CASES IN CONGRESS. ley frpra the one State to the other, and without that consent it cannot be done. Berkeley county is, therefore, still a part of the old State of Virginia. The vote of Berkeley county must consequently be counted in the result, unless there be some other and valid objection to it. In his notice of contest, given by Mr. McKenzie to Mr. Kitchen, he further contests the votes of Berkeley county on account of alleged informality in the conducting of the election and making the returns. The only irregularity shown consisted in the fact that the commissioners of election in Berkeley county certified the result directly to the clerk of Alexandria county, instead of certifying it to the clerk of Berkeley county, who is required by law to re- cord it in a book and 'send a certified copy of it to the clerk of Alexandria county. The commissioners of Berkelpy certified the result as follows — ap- pending to the certificate the reason for so doing — the truth of which was not disputed : Martinsburg, Berkeley County, Virginia, May 30, 1863. We; George Sharer, Elias M. Pitzer, and John W. Pitzer, commissioners at the court- house of said county, do certify that we caused an election to be held in said county, on the 28th day of May, 1863, for governor, lieutenant governor, attorney general, State senator, two delegates in the general assembly, and a member of Congress for the seventh congres- sional district, and that the following is a true return of the votes cast at said election, to wit: For Governor. — P. H. Pierpoint, six hundred and ninety-five votes. For Lieutenant Governor. — Gilbert S. Miner, five hundred and fourteen votes ; Philip C. PendletoD , one hundred and thirty-five votes. For Attorney General. — S. P. Beach, two hundred and fifty-eight votes ; Thomas R. Bowden, three hundred and forty-eight votes. For State Senator. — Joseph A. Chapline, six hundred and fifty-eight votes. For Congress of the United States. — B. M. Kitchen, seven hundred and thirty votes ; Lewis McKenzie, two votes ; Charles H. Upton, seven votes ; John S. Gallagher, three votes. For House of Delegates. — Robert Lamon, one hundred and eighty-two votes ; John W. Daily, one hundred and seventy-one votes. Given under our hands this 30th day of May, 1863. GEORGE SHARER, ELIAS M. PITZER, JOHN W. PITZER. Commissioners. To the Clerk of Alexandria County Court, or to L. A. Hagans, Secretary of the, Commonwealth of Virginia. May 30, 1863. The undersigned, commissioners, named in the foregoing certificate, hereby state that there is no clerk of the county court of Berkeley county, the county officers, including said clerk, elected last year, having failed to qualify : that the records of the office have been removed ; that the office and court-house are occupied by the United States military ; and that it is impossible, therefore, to certify to the " clerk" of the said county court of Berkeley" the result of the election, and consequently the law cannot be literally complied with, which requires said "clerk" to record said return in a book in his office, and to transmit a " certi- fied" copy of such result to the clerk of " the county first named in the law." GEORGE SHARER, ELIAS M. PITZER, JOHN W. PITZER. It was not contended that any fraud was committed, or that the true result in Berkeley was not here certified, and therefore the committee were of opinion that the votes should be counted. This determines the resul t as to Mr. McKenzie. If these votes were counted he did not receive a plurality, and would not, in any event, be entitled to the seat. The question then recurs, has Mr. Kitchen, who received a plurality of all the votes cast, been elected 1 According to the precedents heretofore estab- lished in similar cases, and already adoDted bv this committee in the case of CONTESTED ELECTION CASES m CONGRESS. 471 Joseph Segar, the answer to that question will depend upon the condition of those parts of the district in which no election was held, and the relative* pro- portion which those parts bear in population to that part of the district in which the polls were opened and elections held. A recurrence to the returns will show that an election was held in Alexandria, Fairfax, Loudon, and Berkeley, and polls were opened at two places in Jefferson, and one in Prince "William ; while there was no election in Frederick, Shenandoah, Clark, Warren, Fauquier, and the other precincts of Jefferson and Prince William. The population in 1860 of Alexandria, Fairfax, Loudon, and Berkeley, where there was a general election, was 58,785 ; while that of Frederick, Shenandoah, Clark, Warren, and Fauquier, where there were no polls opened at all, was 65,736. Jf the popu- lation of the two counties — Prince William, where one poll only was opened, and Jefferson, where two only were opened — be divided equally between the represented and unrepresented portions of the district, the result would be that the aggregate population in the former would be 70,341 ; in the latter, 77,292. A division of the entire free population by the same lines will show, in that portion in which elections were held, a free population of 55,530 ; in tbat where no election was held, 55,561. Of free white males, there were in the former 25,568, and in the latter 26,161. All are familiar with the condition of this district since the breaking out of the rebellion. It is the district immediately opposite the District of Columbia, on the south side of the Potomac. It has been more than any other district the theatre of the war, and has been ravaged and devastated by contending armies, till its condition is deplorable. Even that part of it now within the federal lines is constantly exposed to raids from the enemy, and its inhabitants pillaged and taken prisoners, or driven from their homes to seek shelter under .the guns of our forts, or within the District of Columbia. While this case was being heard by the committee, the house of Mr. Kitchen, one of the claimants in Berkeley, was surrounded in the night-time by guerilla* and packed, while he, escaping in the darkness, is here a fugitive. On the day of this election, more than one-half of this district, in territory and in population, was in the armed occupation of the enemy ; and much more was disputed ground, some- times in the possession of one, and sometimes in that -of the other side. And the question presented by the case is, whether in a district so situated the House can treat as the choice of the district, duly elected, the person receiving a plurality of the votes cast, under the circumstances which existed there. The committee found some difficulty in coming to a decision upon this question ; but the conclusion to which they have arrived, after a careful consid- eration, they now submit to the House. The case comes so near to what seems to be the dividing line, as established by the precedents of the last House in similar cases, and the judgment of this committee in the case of Joseph Segar, heretofore reported to the House, that the difficulty lies in determining upon which side of that line it falls. It will be seen that between that part of the district where polls could be and were opened, and the part held by the enemy, there is very nearly an equal division, whether it be divided by territorial limits, by the aggregate of population, the entire free population, or the white male population. In each division the part within the occupation and control of the enemy is a trifle the greatest, but it, may be treated practically as about an equal division of the district between the rebels and the Union forces. But it should not be over- looked, that while that portion under rebel control is held so by force of arms and the presence of rebel bayonets, it is equally true that the remainder of the district is, as yet, within our lines, and under our sway, only by a like force of arms and presence of loyal troops. If the Union forces were withdrawn from any portion ~of the district, it would be immediately overrun by rebel armies. Practically, the seventh congressional district of Virginia, the scene of some of 472 CONTESTED ELECTION CASES IN CONGRESS. the fiercest and bloodiest conflicts of arms in the whole war, is still a battle- ground. The present condition of that portion of it within the Union lines little fits it for the free exercise of the elective franchise. Martial law and military dis- cipline, if not incompatible with, are certainly, at best, poor instrumentalities for ascertaining the choice of freemen. Off against this portion of the district thus selected, and thus held, must be set quite as large if not a larger portion in territory, in population, or in voters, which all the time has been held bound in the chains of an armed enemy, overrun with a hostile army, and ground into the dust by the heel of a usurped power. The committee have, in this state of the facts, come to the conclu'sion that this case comes within the precedents of the last Congress, which have been adopted by the committee in the case from the first district of Virginia, already reported to the House. They cannot satisfy themselves that there has been such a freedom of election in this district as to warrant the conclusion that Mr. Kitchen is the choice of the loyal voters of the whole district. However near to a majority of such voters those came who participated in this election, yet it appears to the committee that a greater portion failed to participate in it for the reason that they were held under the power of the rebel army, and there- fore by no method can it be shown that the claimant is the choice of the Union voters of the whole district. It may not be improper to call attention to the fact that while the whole number of votes cast was 2,059, only 962 of these were cast for Mr. Kitchen; and that of those, 730 were cast in the county of Berkeley, where Mr. Kitchen now resides, a county which, on the same day that these votes were cast, voted also unanimously to attach itself to West Virginia, and which has, so far as the legislature of both States can effect it, been made a part of the new State, and separated from this district altogether. Although, for reasons already stated, this can have no legal effect upon the vote to its exclusion, y$ it is a circumstance which, if it can have any effect, cer- tainly will not lead to the conclusion that Mr. Kitchen would have been the choice of the other counties whose voters were not permitted to participate at all in the election. For these reasons, the committee are of opinion that neither Mr. Kitchen nor Mr. McKenzie are entitled to the seat, and recommend the adoption.of the fol- lowing resolutions : Resolved, That Lewis McKenzie is not entitled to a seat in this house as - representative in the 38th Congress from the 7th congressional district in Virginia. Resolved, That B. M. Kitchen is not entitled to a seat in this house as a representative in the 38th Congress from the 7th congressional district in Virginia. The report of the committee was adopted without division April 16, 1864. Note.— The debate occurs in vol. 51, page 1673. THIRTY-EIGHTH CONGRESS. FIEST SESSION. Sleeper vs. Hick. By the first returns the contestant was elected. An amended return was sent in by the ward officers seven days after the election. It was received by the governor and council, and the certificate was given to Mr. Rice. The committee, holding that the State law fully justified the proceeding, declared in favor of the sitting member, and the House agreed to the report. CONTESTED ELECTION CASES IN CONGRESS. 473 IN THE HOUSE OF REPRESENTATIVES, February 17, 1864. Mr. Dawes, from the Committee of Elections, made the following report : The memorial, notice of contest, answer, testimony, documentary evidence, and all papers material to the case, are printed in Mis. Doc. No. 14. Mr. Sleeper has been heard by the committee in support of his claim, and Mr. Rice in reply. After a careful examination of the whole case, and consideration of all that has been submitted to them, the committee find the facts to be as fol- lows : The third congressional district of Massachusetts consists of a portion (six wards) of the city of Boston, the city of Roxbury, and the town of Brook- line. The election was held upon the fourth day of November, 1862, the day of the regular election for State officers. The result, as declared by the gover- nor and council, the official canvassers, was as follows : Votes. For Mr. Rice 5, 045 For Mr. Sleeper 5, 020 25 Making a plurality of twenty-five votes for Mr. Rice. Mr. Sleeper claims that the true result should be as follows : i Votes. For Mr. Sleeper 5, 049 For Mr. Rice ' 5, 017 32 Making a plurality for Mr. Sleeper of thirty -two votes ; and this is the con- test. The notice of contest and answer are voluminous and somewhat compli- cated and involved. But the real contest covers but a single point and raises but a single question. Were the votes cast for representative in Congress, in ward 12 in the city of Boston, correctly counted or not ] Mr. Sleeper claims that the true number of votes cast for representative in Congress, in ward 12, was as follows : Votes. For Mr. Sleeper 890 For Mr. Rice • 805 85 Making a plurality for Mr. Sleeper in that ward of eighty -five votes. Mr. Rice claims that the true vpte in that ward was as follows : Votes For Mr. Sleeper 861 For Mr. Rice , 833 28 Making a plurality in that ward for Mr. Sleeper of only twenty-eight votes. And as the claim of the one or the other of these gentlemen shall prove cor- rect in this respect, it will result that Mr. Rice was elected by a plurality of twenty-five votes, or Mr. Sleeper by a plurality of thirty-two votes. It is necessary to a correct understanding of the merits of this controversy that the method of conducting elections in Massachusetts be known. Polls are opened in cities in each ward, and the election is there conducted by a board of w — L "" *~" ' and five inspectors. The voting is 474 CONTESTED ELECTION CASES IN CONGRESS. by ballot, and every voter's name is found upon a check list. A part of these ward officers has charge of the ballot-boxes, and others the check list. When a voter approaches to vote, his name is first found and checked on the cheek list, and he then casts his ballot in the box. At the close of the poll, the result, after having been ascertained by the ward officers mentioned, is certified in blanks prepared for the purpose by a majority of those officers, publicly de- clared there before the adjournment in open meeting, entered upon the records of the board, and certified copies thereof delivered by him forthwith to the city clerk, who shall immediately enter them upon the city records. Certified copies of this record, after examination and other proceedings, which will be hereafter alluded to, and transmitted in the case of representative in Congress within ten days to the secretary of the commonwealth, and by him laid before the gover- nor and council, who, as a board of canvassers, canvass the returns from the entire district, declare the result, and give a certificate of election to the person appearing to them to be elected. In the present case, the ward officers in ward 12, of the city of Boston, sent on the night of the election to the city clerk a certificate of the result, as follows : CITY OF BOSTON. At a legal meet'ng of the inhabitants of ward No. 12, in the city of Boston, in the county of Suffolk and Commonwealth of Massachusetts, qualified as the law directs, holden in said ward on Tuesday, the fourth day of November, in the year of bur Lord one thousand eight hundred and sixty-two, for the purpose of giving in their votes for one able and discreet person, being an irihabitant of district No. 3, to represent said district in the next Congress of the United States, the whole number of votes given in as aforesaid were sorted, counted, recorded,, and declaration thereof made, as .by. the constitution and law directed, and were for the following persons: For Alexander "H. Rice", of Boston^ eight "hundred arid five (805) votes. For John S. Sleeper, of Roxbury, eight hundred and ninety (890) votes. In testimony whereof, the warden, inspectors of elections, and clerk of said ward, have hereunto set their hands, the fifth day of November, in the year of our Lord one thousand eight hundred and sixty-two. HORATIO N. CRANE, Warden. A. SMITH, Jr., ) FRANCIS W. HILL, } Inspectors. JOSEPH H. TOMBS, ) GEORGE W. BAIL, Clerk. And the mayor and aldermen certified the result in the six wards of the city falling in this district, as follows : ,No. 1. COMMONWEALTH OP MASSACHUSETTS. At a legal meeting of the inhabitants of the city of Boston, in the county of Suffolk and Commonwealth of Massachusetts, qualified by the constitution to vote for civil officers, holden in their several wards on the fourth day of November, being the Tuesday after the first Mon- .day of said month, in the year of our Lord one thousand eight hundred and sixty-two, for "the purpose of giving in their votes for a representative in the congressional district No. 3, of said Commonwealth, it appears from the several returns made to the board of aldermen, and by them examined according to law, that the whole number of votes given in were sorted, counted, recorded, and declaration thereof made, as by the constitution is directed, and were for the following persons: John S. Sleeper, of Roxbury, three thousand six hundred and twenty-nine j Alexander H. Rice, of Boston, three thousand seven hundred and seventeen ; Alexander H. Rice, of Rox- bury, eight ; Lysander Spooner, of Boston, one ; Rice, one ; William Whitney, one ; Henry Crocker, one. SAMUEL R. SPINNEY, THOMAS P. RICH, JOS. L. HENSHAW, JAMES L. HANSON, GEO. W. PARMEXTER, E. T. WILSON, THOMAS C. AMORY, Jr., OTIS NORCROSS, Aldermen of the City of Boston. Attest: SAMUEL F. McCLEARY, CONTESTED ELECTION CASES IN CONGRESS. 475 On the 11th day "of November, seven days following, the ward officers of ward 12 made an amended or additional return to the mayor and aldermen, as follows : A. CITY OF BOSTON. ' At a legal meeting of the inhabitants of ward No. ]2, in the city of Boston, in the county of Suffolk and Commonwealth of Massachusetts, qualified as the law directs, holden in said ward on Tuesday, the fourth day of November, in the year of our Lord one thousand eight hundred and sixty-two, for the purpose of giving in their votes for one able and discreet per- son, being an inhabitant of district No. 3, to represent said district in the next Congress of the United States, the whole number of votes given in as aforesaid was sorted, counted, re- corded, and declaration thereof made, as by the constitution and law is directed, and were for the following persons : To Alexander H. Rice, as per corrected return, eight hundred and thirty-three (833) votes, instead of eight hundred and five, as per original return ; and for John S. Sleeper, as per corrected return, eight hundred and sixty-one (861) votes, instead of eight hundred and ninety, as per original return. HORATIO N. CRANE, Warden. GEORGE W. BAIL, Clerk. In testimony whereof, the warden, inspectors of elections, and clerk of said ward have hereunto set their hands the eleventh day of November, in the year of our Lord one thousand eight hundred and sixty-two. HORATIO N. CRANE, Warden. FRANCIS W. HILL, ALFRED SMITH, Jr., THOMAS JOHNSON, JOSEPH H. TOMBS, C. A. CONNOR, Inspectors. GEORGE W. BAIL, Clerk. Suffolk, ss : City of Boston, November 11, 1862. Then personally appeared the within named persons, to wit, Horatio N. Crane, warden ; Francis W. Hill, Alfred Smith, jr., Thomas Johnson, Joseph H. Tombs, and C. A. Connor, inspectors of elections, and George W. Bail, clerk, who solemnly swore that this corrected return signed by them is true. Before me, HORACE SMITH, Justice of the Peace. And tbe mayor and aldermen forthwith transmitted the same to the secretary of the Commonwealth, with the following certificate : B. Amended certificate. COMMONWEALTH 0,F MASSACHUSETTS. At a legal meeting of the inhabitants of the city of Boston, in the county of Suffolk, quali- fied as by the constitution required, to vote for representatives in the general court, holden on the Tuesday next after the first Monday in November, being the fourth day of said month, in the year one thousand eight hundred and sixty-two, fdr the purpose of giving in their votes for a representative of this Commonwealth, in the thirty-eighth Congress of the United States, for district No. 3, all the ballots given in therefor were sorted, counted, and recorded, and declaration thereof made, as by the constitution is directed, and were for the' following per- sons, namely: John S. Sleeper, of Roxbury, thirty-six hundred; Alexander H. Rice, t of Boston, thirty- seven hundred and forty-five ; Alexander H. Rice, of Roxbury, eight ; Lysander Spooner, pf Boston, one ; Rice, one; William Whitney, one; Henry Crocker, one, if the amended return from ward 12, of which a copy is hereto attached, and marked A, should be received as a true return of the votes cast at said election. THOMAS P. RICH, Chairman of the Board. JAMES L. HANSON, JAMES L. HENSHAW, C. A. RICHARDS, OTIS NORCROSS, THOMAS C. AMORY, Jr., FRANCIS RICHARDS, JOHN F. PRAY, SAMUEL R. SPINNEY, Aldermen of Boston. Attest: SAMUEL F. McCLEARY, City Clerk. 476 CONTESTED ELECTION CASES IN CONGRESS. The governor and council received the amended return and gave the certifi- cate as required by it to Mr. Eice. Upon the legality and truth of this amended return hangs this contest. In respect to it Mr. Sleeper claims, first, that it is illegal, because there is no law authorizing the ward officers to make an amended or additional return of this nature. The law requires the result to be declared in open ward meeting, and this result never has been so declared, and cannot therefore be accepted as the result ; and because the mayor and aldermen have never, as required by law, passed upon this amended or additional return, or determined anything one way or the other based upon it, but only transmitted the same to the governor, and council, with a hypothetical certificate of their own, of no force in law ; and, secondly, that the amended return is not true. Although the last proposition of Mr. Sleeper is the most important of all, lying at the foundation of all investigations of the committee, who entertain no doubt that the seat should be awarded to that candidate for whom the greatest number of legal votes were cast, however officers may have conformed to or disregarded the requirements of law in Massachusetts in declaring, certifying, or canvassing the votes after they have been so cast, yet the committee, before proceeding to a discussion of the evidence bearing upon the question of how many votes were actually cast at that poll, embraced in the second proposition of Mr. Sleeper, stop for a moment to consider the soundness of his first propo- sition. Is there any law authorizing the ward officers to make an amended or additional return of the nature of the one here made 1 The duty of the ward officers, as well as of the mayor and aldermen in the premises, is prescribed in chapter 7, section 16, of the General Statutes of Massachusetts, in these words: The mayor and aldermen and the clerk of each city shall forthwith, after an election, examine the returns made by the returning officers of each ward in such city, and if any error appears therein, they shall forthwith notify said ward officers thereof, who shall forth- with make a new and additional return, under oath, in conformity to truth, which additional return, whether made upon notice or by such officers without notice, shall be received by the mayor and aldermen or city clerk at any time before the expiration of the day preceding that on which by law they are required to make their returns, or to declare the result of the election in said city ; and all original and additiolial returns so made shall be examined by the may or and aldermen, and made part of their returns of the results of such election. In c unting the votes in an election no returns shall be rejected when the votes given for each can- didate can be ascertained. In this clear and comprehensive section is comprised the whole law of Massa- chusetts upon the subject. By it a new or amended return is not only author- ized, but required in certain cases — its language being : " Who shall forthwith make a new and additional return." Of course the new return is to be different from the one already made, or it would be useless. It must, therefore, be dif- ferent from the original declared result, for that is what the law requires, and is , in the first return, excepting always the possible case of a clerical mistake in transcribing a declared result into a certificate, which cannot embrace the whole scope of the section. This disposes of the objection that the result included in the second return has never been declared in open ward meeting, for if it had been so declared there would have been no occasion, except in the one impro- bable case stated, for a new return. The last clause in the statute renders immaterial also any defects of form in the first return, holding it sufficient when the true number of votes can be ascertained from it, and consequently requiring a new return only when the true number of votes had not been declared and certified already. The committee have not overlooked the importance which the law of Massa- chusetts attaches to a " result declared in open town meeting." It is wisely deemed a great safeguard against subsequent tampering with a count of votes or with the ballots themselves in a closely contested election, and should not be set aside except on controlling, evidence. While no person should be deprived of an office awarded him by a result «« iW.larfid in nr mn t.nwn mpfit.inp- at. t.Vi B CONTESTED ELECTION CASES IN CONGRESS. 477 close of the polls on any doubtful or suspicious testimony, it is no less important that he for whom a majority of the votes has been actually cast should not be deprived of the seat by any mistake in counting those votes, however made, simply because that mistaken count has been announced as the true result in open meeting. Massachusetts does not herself treat this " declared result" as conclusive, but provides for a new or additional return conformable to nothing but "the truth," and the committee see no reason for giving it greater sanction than prima facie evidence of what the truth is, controllable, but not to be con- trolled, except upon evidence which leaves no room for reasonable doubt. But two restrictions are placed upon the additional or amended return by the statute. The first is that it be made to the city clerk or mayor and aldermen before the expiration of the ninth day after the election. This was so made .on the seventh day. The second restriction or limitation is that it be made " in conformity to truth ;"" and it is to be made under the oath of the ward officers ; it must, therefore, be in conformity to what they believe to be the truth. The statute requires the mayor and aldermen to examine the returns, and if any error appears therein, to notify the ward officers thereof, who shall thereupon "make a new and additional return." But the statute does not require the ward officers to wait till the error has been discovered by the mayor and alder- men and been notified to them before they can make their new return, for it expressly declares that a new return made "in conformity to truth" by the ward officers, " whether made upon notice or by such officers without notice, shall be received by the mayor and aldermen." Now, a new return made without notice of the error from the mayor and aldermen, in order to "be in conformity to truth," and be sworn to by them, must be the result of an examination on their part to ascertain what the truth is to which they are to make oath. The statute does not limit or prescribe what shall be that examination, and therefore any such which will lead to the " truth," to which their new return must conform, is legitimate and proper. The claim of Mr. Sleeper, that because the law does not expressly provide for the preservation and recount of the ballots, it does not authorize it, is just as valid against any other method of examination for ascer- taining what that " truth" is to which the ward officers are required to make their new return conform, and, if sound, prevents all examination which the law does require. The objection of Mr. Sleeper that the mayor and aldermen have never passed upon the sufficiency of this new return is founded in a mistake of the law. The section already quoted requires the mayor and aldermen not to adjudicate and determine upon the sufficiency of this new return, but to examine and make it a part of their return. They return to the secretary of the Com- monwealth, and he lays this new with all previous returns before the governor and council, who are to canvass the whole vote of the district and award the certificate to the person who appears to them to be elected. The committee are therefore of opinion that the statutes of Massachusetts contain ample provision for the proceedings of the ward officers and mayor and aldermen of Boston, in respect to this new or amended return. The more important consideration remains yet to be disposed of. Did this new return " conform to the truth ?" What was the actual vote Cast in ward 12 for representative in Congress ? Upon this question the committee have bestowed much care and reflection, and they find, in respect to it, the following facts : This was an election for State officers, as well as for representative in Congress, and the voting was by ballot, and the names of candidates for all the offices, seventeen in number, were upon one ballot. It is proper to state that, though there were but two parties in that election, there was a variety of tickets in style and name — all, however, on their face bearing the names of the set of candidates for those seventeen offices, which the political friends of Mr. Eice on the one hand, and of Mr. Sleeper on the other, had presented for support, ex- cepting a ticket which bore the party names of Mr. Sleepei\s political friends 478 CONTESTED ELECTION CASES IN CONGRESS; for all the offices but that of representative in Congress, for which the name 6f Mr. Eice was substituted for that of Mr. Sleeper. This ticket appears to have been cast by a portion of the voters, who, while voting otherwise with Mr, Sleeper's friends, preferred to vote for Mr. Eice for representative in Congress» The original ballots were before the committee, and this ballot does not appear to have simulated any other, but to have been easily distinguishable from all the rest. One of them is reprinted in Mis. Doc. No. 14, page 71, and it is iu respect to these ballots that whatever mistake existed arose. The ward officers, seven in number, were divided politically, four voting for Mr. Eice, including the clerk of the ward, and three for Mr. Sleeper, including the warden, the principal ward officer. These ward officers occupied a position in the ward- room, where the votes were cast, separated from the voters by a railing, and upon a raised platform. As has already been described, a part of the ward officers had charge of the check list and others the ballot-tioxes. The ballots were counted from time to time during the day as they accumulated in the boxes, by the warden and clerk — th'e one a political friend of Mr. Sleeper, the other of Mr. Eice — at a table in the rear of the voting, and the result for governor and representative in Congress, each hour, was stated by the clerk upon a blaek> board in the ward-room, for the information of all who cared to know of the progress of the election. In counting, the tickets were first assorted by the warden and clerk in small packages of different sizes — the straight tickets by themselves, and the split or scratched' tickets by themselves. As they were counted after being thus assorted, the number for the respective candidates for governorand representative in Congress was put down against the name of such candidate on a half sheet of paper, which was styled "rough count throughout the day." This identical paper was before the committee, and a,fac simile of it is annexed to this report, marked I. Photographic copies of it were also fur- nished the committee, which they still have. Prom this paper I the hourly re- sults were placed upon the black-board, When the packages of votes thus assorted were counted and put upon the rough count I, they were tied up sep- arately, with a string, and each package of straight tickets marked in psncil, " all clean," or " all clea.r," with the number of ballots and the word " taken" upon them, with the initials of the person so counting them. The split or scratched tickets were also tied up and marked like the others, except for the words " all clean" or " all clear" was a mark denoting that they were not straight tickets; and they had also the names which had been scratched written on the back, with the number it contained for him put down against it. These packages thus tied up and marked were then recounted and the results for each candidate placed upon another paper. That paper also was before the committee, and a fac simile accompanies this report, marked K. Photographic copies of this paper also are with the committee. The hourly announcement upon the black- board was taken from the " rough count," paper I, while the final result, as an- nounced in open ward meeting and certified iu the first return to the mayor and aldermen, was taken from paper K. At the close of the meeting the clerk of the ward took the several packages of votes heretofore described, put them into one bundle, tied a string around the middle of the bundle, and a paper around the ends of the package, and took it home with him and deposited it in a trunk in a closet, in the attic of his house, where they remained untouched, as far as is known, until the Sunday following. A recurrence to papers I and K will show that the aggregate vote for gov- ernor in the ward was 1,702; for councillor, 1,695; and for senator, 1,692; while the vote on paper I, for representative in Congress, was only 1,633, 69 votes less than the aggregate for governor, 62 votes less than that for councillor, and 59 votes less than that for senator; that while the aggregate vote for gov- ernor, councillor, and senator varied from each other only ten votes from highest to lowest, that for representative fell some sixty^ votes below them all — sixty? CONTESTED ELECTION CASES IN CONGRESS. 479 nine below the highest, and fifty-nine below the lowest. It will also be ob- served that while the count upon I and K for representative in Congress, if correct, should agree with each other, they disagree both as to the number of votes given each candidate, and also as to the aggregate of the votes for both. Mr. Rice has on paper I 770 votes ; on paper K he has 805. Mr. Sleeper has on paper I 863 votes, and on paper K 890 votes. The aggregate of their votes on paper I is 1,633 ; on paper K it is 1,695. The difference of sixty votes between the aggregate of votes for representative to Congress, as announced on the blackboard in the ward-room, and that for governor and other officers, attracted attention, and was the occasion of remark to the clerk and other ward officers generally during the week. And the question was frequently put to them : Were these sixty men in the ward who, while voting fois all other officers, had failed altogether to vote for representative in Congress, and that, too, when the principal interest centred on congressman aud governor 1 No ward officer had seen deposited or in the count any such votes. Under this inquiry the clerk of the ward took, in his own house, by him- self, papers I and K to recast the figures and verify them. He testified that such had been his custom at former elections. By turning to paper I, it will be observed that the figures were made upon it in the following manner : The number of votes for Mr. Rice in the first package counted were 5, and they are -put down against his name. In the next package there were 9 for Mr. Rice, and the 9 is placed over the 5, and the sum 14 carried to the right. In the next package there were 60 for Mr. Rice, and the 60 is placed over the 14, and the sum 74 is again carried to the right, and so on to the end. In the second line of figures, fourth from the left, it will be observed that the aggregate had then come to be "569 ;" three were placed over those figures, making ■' 572 ;" 1 was placed over that sum, making 573 ; 5 were placed over those figures, and the sum carried forward should have been 578 ; instead, however, it was put down " 518," a mistake of 60 votes, and this mistake runs through to the end. An examination of the manner in which the figures 573 were made, as appears oh the original paper, which was before the committee, and on the fac simile ap- pended to this report, will show how easily the 7 joined at the top to the 5 might' be mistaken for a 1. Correcting this mistake, which is perfectly clear, and re- storing to Mr. Rice the 60 votes here lost to him, his vote would be by the " rough count," corrected, 830 votes, which, with the 863 votes given Mr. Sleeper by the "rough count," would make an aggregate of 1,693, one more than the lowest, and nine less than the highest- aggregate given among all the candidates for the other offices. But this does not agree with paper K, which was declared to be the vote on election day, and certified as such to the mayor and aldermen, for, adding this corrected vote for Mr.- Rice, 830, to that put down on paper K for Mr. Sleeper, 890, and it makes an aggregate of 1,7.20, thirty-two votes more than the lowest, and twenty-two votes more than the highest of the other aggregates. On discovering this surplus thus produced, the ward clerk conferred with the former clerk of the ward and other friends, and then returned and examined by himself alone, and unbeknown to any one else, the bundle of votes in his attic. Taking off the paper wrapper, but without untying the string around the middle of the bundle of packages, or removing the packages, he ex- amined the votes in each package, took off the number of votes for representa- tive .in Congress on each of the packages, and then restored them to their former place in the closet. In consequence of the conviction that an error had been committed in counting, which this examination produced on his mind, he then procured a meeting of all the ward officers at his house on the following evening, when the votes were by them there recounted with great care, and the result as thus ascertained was embodied in the new or amended return, signed by all the ward officers, seven in number, four of them voting themselves for Mr. Rice, and three of them for Mr. Sleeper, sworn to by them all, forwarded to the mayor and 480 CONTESTED ELECTION CASES IN CONGRESS. aldermen, and by them transmitted to the governor and council within the time prescribed by law. In counting the votes at this time, the ward officers took each of the small packages upon which the number of votes was marked, recounted it carefully, and checked the corresponding numbers upon paper K. It will be observed that on paper K there are, among the several packages set down to Mr. Sleeper, three packages of twenty-eight votes each, and none of that number for Mi\ Rice. In the recount, after all the votes in the whole bundle for Mr. Sleeper were counted and checked, there had been checked but two packages of twenty-eight votes, and there remained unchecked, to any one, a package of twenty-eight votes, like the one on page 71, Miscellaneous Docu- ment, being a ('people's ticket," or that of Mr. Sleeper's political friends, with the name of Mr. Rice printed in place of Mr. Sleeper's for representative in Congress. This package of votes was marked on the outside, " twenty -eight votes, all alike, taken.— Gr. W. B.," (Gr. W. Bail, clerk of the ward.) This mark had been evidently mistaken for '"all clean" tickets — that is, tickets with Mr. Sleeper's name for Congress upon it with his political associates, and these tickets had been counted for Mr. Sleeper, when they should have been counted for Mr. Rice. Restoring these twetity-eight votes to the count for Mr. Rice, and taking them from that for Mr. Sleeper, with the adjusting in the same way of two or three votes counted for Mr. Rice when they should have been counted for Mr. Sleeper, and as many more which had been counted for Mr. Sleeper when they should have been counted for Mr. Rice, about balancing each other, (see Miscellaneous Document, page 32,) the result was given which is contained in the amended return, signed and sworn to by all the ward officers, viz: for Mr. Rice 833 votes, instead of 805; and for Mr. Sleeper 861 votes, instead of 890 ; making a majority for Mr. Rice in the district of twenty-five votes. That this was the correct count of the ballots on the second count the Monday night after the election, no one disputes, and an examination of the evi- dence, with a sworn return of the seven ward officers, does not leave room for dbubt. If, therefore, the ballots had not in the mean time been tampered with, the proof could not be made stronger that the true result had been reached. Upon this point there is not the slightest evidence calculated to awaken suspi- cion. The clerk of the ward, whose testimony is uncontradicted, and whose character appeared to be above reproach, testifies positively that the bundle re- counted on Monday night contained all the votes cast on the day of election, and none others, in precisely the same condition as when tied up at the close of the polls ; that he took them that night home with him, and put them in a trunk in a closet in his attic; that the trunk shut with a spring lock, the key remaining in the lock; that no person, to his knowledge, knew they were there but himself; that his .own family consisted of a wife, confined all this time to her bed with sickness, an infant child, a nurse, an aunt visiting the family, and himself. He also testifies that the mark " 28 votes, all alike, taken. — Gr. W. B.," written upon the package having Mr. Rice's name in the place of Mr. Sleeper's was written on the back of the ballots by himself on election day, and that the mistake must have arisen in calling off the packages. There is, however, cor- roborative proof found in the papers I and K themselves. By correcting the sixty votes in paper I, as before stated, and restoring to Mr. Rice the twenty- eight votes here spoken of, the aggregate vote for representative to Congress corresponds with those cast for the other officers, as follows : for governor, 1,702 ; for representative in Congress, 1,693; for councillor, 1,695; and for senator, 1,692. Correcting paper I, and the aggregate on paper 1 will be 1,694; but if that correction be applied to paper K, without also counting ( the twenty-eight votes, an aggregate of 1,720 votes will be produced, just twenty-eight votes more than the aggregate given for senator, and twenty-seven more than that given for councillor. The supposition, therefore, that the ballots had been tam- pered with before the last count, in order to produce this result, involves not CONTESTED ELECTION CASES IN CONGEESS. 481 only the perjury of the clerk of the ward, but also requires that papers I and K he both forged and put in their present condition for the same purpose. But the evidence was abundant from all sides that the hourly announcements, put upon the blackboard in the ward-room on election day, corresponded with paper I, and disclosed the precise discrepancy in the aggregate vote found on that paper; and the first return made on the night of the election was made from paper K, and corresponded with it. Besides all this, the very sight of the original papers, now with the committee, shows how preposterous is the pre- tence that they have been altered to produce thiB result. Without the cor- rection in paper I, we must suppose that there were sixty ballots cast with no name upon them for representative in Congress, yet no such ballot has been produced, and no person who cast such a ballot; and with that correction, but without the correction in paper K, we must conclude that twenty men voted for Mr. Sleeper for Congress, but for no one else of the candidates for the sixteen other offices voted for on the same ballot by all others ; yet no such ballot has ever been seen, and no such voter has ever been found. By making the cor- rection in both papers a striking coincidence will be found, not only between the votes for candidates for Congress, but even the aggregate thus produced and the aggregates for other offices. Restoring the sixty votes to Mr. Rice on paper I, and counting for him, instead of for Mr. Sleeper, on paper K, the twenty-eight votes for him found on the " people's ticket," and then Mr. Rice will have on paper I 830 votes, on paper K 833 votes. Mr. Sleeper will have on paper I 8G3 votes, and on paper K 862 votes. The aggregate of vote for Mr. Rice and Mr. Sleeper on paper I would then be 1,693, on paper K 1,695. The aggregate for other officers has been already shown to be, for senator, 1,692 ; for councillor, 1,695; and for governor, 1,702. The committee will only add a statement by the warden who presided at this election, and who himself voted for Mr. Sleeper, published in the public papers a few days after he had re- counted these votes. He says : South Boston, November 12, 1862. In conclusion, there was, and is, to my mind — and all of the inspectors concur with me in this result — an unfortunate, unintentional error on the part of our clerk, in originally giving to Mr. Sleeper these twenty-eight votes, when he should have put them to the credit of Mr. Kice. HOEATIO N. CEANE, Warden of Ward Twelve. The committee, in the absence of a particle of testimony calculated to cast suspicion upon the fairness and truth of this recount, or to control the position and corroborated testimony in its support, are of opinion that the certificate of election was rightly awarded to Mr. Rice, and that he is entitled to the seat. They thereupon recommend the adoption of the following resolutions : Resolved, That John S. Sleeper is not entitled to a seat in this house as a representative in the 38th Congress from the third congressional district in Massachusetts. Resolved, That Alexander H. Eice is entitled to a seat in this house as a representative in the 38th Congress from the third congressional district in Massachusetts. The report was adopted, March 4, 1864, without debate or division. Note. — See vol. 50, page 942. THIETY-EIGHTH CONGEESS, FIEST SESSION. Gallegos vs. Perea, of New Mexico. The contestant asked for an extension of time for taking testimony, he having neglected to comply with the provisions of the law. The House refused. H. Mis. Doc. 57 31 482 CONTESTED ELECTION CASES IN CONGRESS. IN THE HOUSE OF REPRESENTATIVES, April 6, 1864. Mr. Smithers, from the Committee of Elections, made the following report : That an election was held in said Territory on the first Monday of Septem- ber, 1863, for delegate in Congress. That at this election the contestant and sitting delegate were the only candidates, and Francisco Perea appearing to have received a majority of votes, received the certificate of election. The contestant thereupon served notice of his intention to contest, alleging divers matters of law and fact, and also gave notice that he would take the testimony of witnesses before Hon. Kirby Benedict, chief justice of the supreme court of New Mexico, or, in the event of his absence, before Miguel E. Pino, probate judge of the count}' of Santa Fe\ To this notice of contest the sitting delegate replied, and after notice to that effect proceeded to take testimony. The contestant omitted to take any evi- dence in support of his allegations, but in lieu thereof presented his petition to the House praying to be allowed further time to examine witnesses. The reasons assigned in support of this petition are that there are but two judges of the district court in New Mexico; that one of them, Joseph G. Knapp, resides in'the southern part of the Territory, at a considerable distance from thecontest- ant, the road thither being rendered dangerous by hostile Indians, and the other, Kirby Benedict, the chief justice before whom notice was given to take testimony, is a violent political opponent. No reason is alleged why the evi- dence could not have been taken before the probate judge named in the notice. The contestant has failed to appear before the committee either in person or by attorney, and they are ignorant of the facts except as stated in the petition. Under these circumstances the committee see no reason for granting any exten- sion of time as prayed. The committee, however, would suggest that in case the House shall deter- mine to extend the time in favor of the contestant, further time be also allowed to the sitting delegate, the testimony taken by him being informal. The committee therefore recommend the adoption of the following resolutions : Resolved, That the petition of Jos6 M. Gallegos asking further time to take testimony in the matter of his contest of the right of Francisco Perea to a seat in this house as delegate from New Mexico be not granted. Resolved, That the Committee of Elections be discharged from any further consideration of the memorial of contestant. The House agreed to the report without debate or division, April 6, 1864. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Bruce vs. Loan, of Missouri. The grounds of the contest in this case were, interference with the election by the armed militia of the State and improper conduct of the officers of the election at certain polls. The committee held that there was such an amount of intimidation by armed men at the polls, and such a condition of things existing in Missouri, as to require the seat to be vacated. The House refused to adopt the report, and the sitting member retained the seat. The case was particularly important, as there were two others from the same State — Price vs. McClurg and Birch vs. King — in which the same principles were involved. After the House had decided this case, the others were abandoned by the committee. IN THE HOUSE OF REPRESENTATIVES, April 8, 1864. Mr. Ganson, from the Committee of Elections, made the following report : That an election was held in the State of Missouri on the fourth day of •November, 1862, for representatives in the thirtv-eiehth Congress and for' CONTESTED ELECTION CASES IN CONGRESS. 483 State and local officers. This was the first election attempted to be held in the State since the commencement of the rebellion. The administration of the affairs of the State had been conducted by a provisional government since the fore part of August, 1861. A convention of the State was in session in the spring and summer of 1862. On the 10th of June, 1862, an ordinance defining the qualifications of voters and civil officers in the State was adopted by the convention providing, among other things, as follows : AN ORDINANCE defining the qualifications of voters and civil officers in this State. Be it ordained by the people of the State of Missouri in convention asssembled as follows : Section 1. No person shall vote at any election to be hereafter held in this State under or in pursuance of the constitution and laws thereof, whether State, county, township, or municipal, who shall not, in addition to possessing the qualifications already prescribed for electors, previously take an oath in form as follows, namely : "I, ; — , do solemnly swear (or affirm, as the case may be) that I will sup- port, protect, and defend the Constitution of the United States and the constitution 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 indi- rectly, give aid and comfort or countenance to the enemies or opposers thereof, or of the pro- visional government of the State of Missouri, any ordinance, law, or resolution of any State convention or legislature, or any order or organization, secret or otherwise, to the contrary notwithstanding ; and that I do this with a full and honest determination, pledge, and pur- pose, faithfully to keep and perform the same, without any mental' reservation or evasion whatever. And I do further solemnly swear (or affirm) that I have not, since the 17th day of December, A. D. 1861, wilfully taken up arms or levied war against the United States, or against the provisional government of the State of Missouri: So help me God." Sec. 2. Before any person shall be elected or appointed to any civil office within this State under the constitution and the laws thereof, whether State, county, township, muni- cipal, or other civil office, he shall take and subscribe an oath in form as follows : " I, A B, do on oath (or affirmation) declare that I have not, during the present rebellion, wilfully taken up arms or levied war against the United States, nor against the provisional government of the State of Missouri, nor have wilfully adhered to the enemies of either, whether domestic or foreign, by giving them aid and comfort, but have always, in good faith, opposed the same. And, further, that I will support, protect, and defend the Consti- tution of the United States and of the State of Missouri against all enemies and opposers, whether domestic or foreign, any ordinance, law, or resolution of any State convention or legislature, or of any order or organization, secret or otherwise, to the contrary notwith- standing ; and that I do this with an honest purpose, pledge, and determination faithfully to perform the same, without any mental reservation or evasion whatever ; " which oath shall be filed in the office of the secretary of state by all candidates for State offices, and by can- didates for all county and other offices in the office of the clerk of the county court, (or other officer charged with equivalent duties,) in the counties wherein they respectively reside, at least five days before the day of election. And no vote shall be cast up for, or certificate of election granted to, any candidate who fails to file such oath as required by this ordinance. Sec. 3. Any person who shall falsely take, or having taken, shall thereupon wilfully violate any oath prescribed by this ordinance, shall, upon conviction thereof by any court of competent jurisdiction, be adjudged guilty of the crime of perjury,, and shall be punished therefor in accordance with existing laws. And it shall be the duty of the judges of all courts having criminal jurisdiction under the laws of this State especially to charge the grand juries in the counties in which such courts shall be held, respectively, and of all grand juries, in the performance of their duties under the laws of this State, especially to inquire concerning the commission of any act of perjury mentioned or made punishable by this or any other ordinance adopted by this convention. Sec. 5. That judges and clerks of all elections held under the laws of this State shall, in addition to taking the oath required by existing laws, take the further oath that they will not record, nor permit to be recorded, the name of any voter who has not first taken the oath required to be taken by the first section of this ordinance. Sec. 6. The o-eneral assembly of this State may, at any time, repeal this ordinance, or any part thereof" AIKMAN WELCH, Vice-President of Convention. (Pages 57, 58, 59.) Adopted June 10, A. D. 1862. A. LOW, Secretary oj Convention. 484 " CONTESTED ELECTION CASES IN CONGRESS. The constitution of the State of Missouri, at the time the foregoing ordi- nance was adopted, by the 10th section of article three, fixed the qualification of voters as follows : Sec. 10. Every free white male citizen of the United States, who may have attained to the age of twenty-one years, and who shall have resided in this State one year before an election, the last three months whereof shall have been in the county or district in which he offers to vote, shall be deemed a qualified elector of all elective officers. (Page 141.) The civil commotion in Missouri, occasioned by the rebellion, had produced so much contention between those who differed as to some of the questions in- volved in a proposed change of the organic law of the State, and in the policy of the federal government relative to the subject of emancipation, that those in authority in the State apprehended there might be serious disturbance in some of the precincts on the day of election. This apprehension was so fully and firmly entertained, that the adjutant general of the State, on the 23d of October, issued an order, designated as Order No. 45, of which the following is a copy : General Orders, ) Headquarters, State op Missouri, No. 45. 5 Adjutant General's Office, St. Louis, October 23, 1862. I. A general election is to take place throughout the State the first Tuesday in November next. This is the first attempt of the people to choose their officers since the war of the rebellion commenced. It will be an occasion when angry passion, excited by the war, might produce strife, and prevent the full expression of the popular will in the selection of officers. The convention has- provided, by ordinance, that every voter shall, before voting, take a prescribed oath, and that no vote shall be counted in favor of any candidate for a State or county office unless he shall have taken an oath prescribed for candidates. The ordinance of the convention fixes heavy penalties upon those who take the oath falsely. These are the safeguards which the convention judged necessary to keep unfaithful and disloyal persons from exercising power in the State. They are sufficient. No person must be allowed to interfere with the freedom of those qualified to vote under this ordinance. The enrolled militia, being citizens of the State, and very nearly all entitled by age to vote, will doubtless be generally at places of voting. They are a body organized for the purpose of preventing violations of the law of the State, and they all know that it is essential to the maintenance of our government that all qualified voters should be allowed, without molestation of any kind, to cast their votes as they please. II. It is required of all officers and men of the enrolled militia that they keep perfect order at the polls on the day of election, and that they see that no person is either kept from the polls by intimidation, or in any way interfered with in voting at the polls for whatever can- didate he may choose. III. It any officer or private shall either interfere with the rights of voters, or countenance such interference by others, it will be treated as a high military offence, and punished with the utmost rigor. IV. Whenever there is any reason to apprehend any interference with the election on the part of bands of guerillas, the commanding officer of the nearest regiment will detail a suffi- cient force to prevent any such interference, and station it where there is any apprehended danger. V. In case of 'disturbance arising which cannot be arrested by the civil authorities, any commissioned officer present is hereby ordered, at the request of any judge, sheriff, or justice of the peace, to use the necessary military force to suppress it. VI. Commanding officers of the enrolled Missouri militia are hereby directed to see that the foregoing orders are strictly obeyed. By oider of the commander-in-chief. WILLIAM D. WOOD, Acting Adjutant General, Missouri. Official: JOHN B. GRAY, Adjutant General. , On the first of November, 1862, another general order was issued from the headquarters of the seventh military district, which embraced the seventh con- gressional district, calling the attention of the officers and soldiers of the militia in that district to the provisions of General Order No. 45, and warniDg such officers and soldiers against interfering with the freedom of the election. The order is as follows : CONTESTED ELECTION CASES IN CONGRESS. 485 IMPORTANT GENERAL ORDER.— QUALIFICATION OF VOTERS. General Order, ) Headquarters 7th Military District, No". 33. J St. Joseph, Missouri, November 1 , 1862. The attention of all officers and soldiers of the militia of this district is called to General Order No. 45, dated "Headquarters, State of Missouri, adjutant general's office, St. Louis, October 23, 1862," with reference to the election on Tuesday next. The military should bear in mind that thoy are not the judges of the qualifications of voters: That duty is de- volved by law on the judges of the election. If these officers either admit improper persons to vote, or exclude proper persons from voting, the statutes of this State provide an ample remedy, ^he militia will carefully abstain from all acts calculated to interfere with the free- dom of election. All officers who interfere with the rights of voters will be reported to the commander-in-chief, to be dealt with as he may decide. All soldiers guilty of the same offence will be punished as a court-martial shall determine. By order of Brigadier General Willard P. Hall : ELWOOD KIRBY, (Page 141.) Assistant Adjutant General. There were unquestionably sufficient indications, prior to the election, of an intended interference with the electors at the polls, to induce the authorities of the State to issue the foregoing orders. The occurrences on election day show very plainly that the apprehended interference was from the militia itself. This accounts for the peculiar phraseology of Order No. 33. The section of the constitution above cited, and the provisions of the ordinance of June 10, 1862, clearly determined the qualifications of the voters, and every person who possessed such qualifications was, as. the military authorities in- structed the officers and soldiers of the militia, entitled to vote without any molestation. The contestant, Mr. Bruce, insists that the election was neither full, fair, nor free. He claims that many qualified voters were forcibly prevented from voting; others were so much intimidated by the force used, and by the threats made on and prior to the day of the election, that they refrained from attending the polls ; and in numerous instances persons refrained from voting after they reached the place of holding the elections from well-grounded apprehension of personal in- jury. He claims also that, in some cases, the polls were forcibly closed and poll-books were destroyed. The interference complained of came chiefly from a portion of the armed and unarmed militia of the State. The contestee, on the hearing, took exceptions to some of the allegations con- tained in the contestant'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 con- testee's exceptions, as they are entirely satisfied 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 en- title either candidate to a seat in this house. The seventh congressional district of Missouri is composed of the counties of Buchanan, Andrew, Holt, Atchison, Nodaway, Worth, Gentry, Harrison, Mer- cer, Grundy, Putnam, Sullivan, Livings: on, Daviess, and De Kalb. Evidence was produced before the committee relative to interference with voters in the counties of Buchanan, Andrew, Atchison, De Kalb, and Living- ston. It was conceded that the election was fairly conducted in the counties of Worth, Gentry, Harrison, Mercer, Grundy, Putnam, Sullivan, and Daviess. It was claimed by the contestant that there was improper interference with the voters in the counties of Holt and Nodaway. Testimony to show such in- terference in those counties was not taken by the contestant, although he served notices to take testimony there, for the reason, as alleged by him, that he could 486 CONTESTED ELECTION CASES IN CONGRESS. D( t procure persons to examine witnesses in those counties. Sworn statements were produced, and evidence given, strongly tending to show that it would not have been prudent for the contestant, or any one representing him, to go into those counties to examine witnesses in this case. On this subject Washington Jones swears as follows : Statement of Washington Jones, attorney. I was employed as attorney by John P. Bruce to attend to the taking of depositions at Maryville, in Nodaway county, Missouri, on the 2d, 3d, 4th, and 5th days of November, 1863, in pursuance of a notice to that effect, which was handed me at the time, and which is now before me, together with other papers in the case. I was in Maryville on the days appointed for the taking of the depositions ; saw the judge before whom they were to be taken, and some of the witnesses mentioned in the notice ; but became satisfied, from what I saw and heard, that no depositions on behalf of Bruce could be taken at the time and place appointed for the purpose : and such was the opinion of all with whom I conversed on the subject. There was a nigh state of excitement in the town at the time, owing, I think, partly to the fact of the election coming off on the 3d, and partly to other circumstances. What is now known as the radical party seemed to have the entire control of everything of a political character, and it was stated to me that persons belonging to that party, and who were political enemies of Major Bruce, had said that no depositions in his behalf should ever be taken in Maryville. These statements, together with the 'general feeling manifest at the time, satisfied me, as also, I believe, Judge Ellis, that it would not be safe for him, or any other parties connected with the matter, to attempt to take the depositions, or even to let it be known that such a thing was in contemplation. I was prepared to attend to the taking of the depositions, and I think the testimony of several witnesses might have been obtained, but for the facts stated above. As an evidence of the feeling which prevailed at the time, I will state that I heard several persons say, on the day of the election, that they would like to vote for the conservative ticket, but did not think it safe for them to do so. "WASHINGTON JONES. Subscribed and sworn to before me this 14th day of November, 1863, as witness my hand r_ . -, and notarial seal. L J JOHN WILLIAMS, Notary Public. Holt County, Oregon, Missouri, October 9, 1863. Dear Sir : Your letter is now before me, and the contents noted. I would say to you that Judge E. H. Eussell has been ordered to leave in ten days, and I do not believe he will act in your case ; and from the condition matters are in here, I do not believe it would be advisable for you to come up here, and I know it would not do for mo to have anything to do in the matter. Yours truly, R. WILSON. John P. Bruce. (Page 122.) As has been before stated, and as will appear from the evidence hereinafter referred to, the interference complained of in this case came chiefly from a portion of the armed and unarmed militia. The contestee was at the time of the election a brigadier general, and had shortly before the election ceased to be in command of the militia in the seventh congressional district, although he still held such official position elsewhere. Many of the candidates for State offices, associated with him on the ticket, were militia officers then in command. For instance, Colonel John Severance, of the enrolled militia, was running for State senator ; Captain James Brierly, of the enrolled militia, and Major John L. Bittinger, aid to General Hall, were running for the State legislature ; Captain George Lyon, of the enrolled militia, was candidate for county trea- surev 1 . All of these persons were candidates in Buchanan county. .Again: in Andrew county, besides the contestee, the following officers of the enrolled militia were candidates, and associated with him in the election : Colonel William Heren, of the enrolled militia, was a candidate for the State senate; Major John McLain, of the enrolled militia, was a candidate for county court justice; Lieutenants Phineas Edwards and Ralph T. Wilson, of the enrolled militia, were candidates for county clerk. CONTESTED ELECTION CASES IN CONGRESS. 487 Again: in Atchison county, Colonel Heren was candidate for the State senate ; Colonel Pike, then captain of the enrolled militia, was candidate for representative ; A. E. Wyatt, captain of the enrolled militia, ran for the office of sheriff; and A. B. Durfee, who was candidate for the office of county trea- surer, was understood to hold some office connected with the enrolled militia ._ De Kalb county was in the senatorial district of Colonel Severance. Colonel Heren, of the enrolled militia, was colonel of the regiment organized from the counties of Andrew, Holt, Atchison, and Nodaway, which comprised the senatorial district in which he was the senatorial candidate. Colonel Severance, of the enrolled militia, was colonel of the regiment made up from the counties of Buchanan and DeKalb, which are a portion of the senatorial district in which he was the senatorial candidate. Neither the contestant nor any persons associated with him, as candidates in the election, were connected officially with the enrolled militia of the State, and there was not any evidenee before the committee tending to show that he or his friends in any instance interfered, or attempted to interfere, with the freedom of the election. Whatever interference there was, so far as the evidence shows, came solely from the enrolled militia and from those professing to be friends of the contestee. Reference will now be made to some of the evidence to show the character and extent of that interference. INTERFERENCE IN BUCHANAN COUNTY. Samuel Ensworth, the sheriff of Buchanan county, who swore that he was a friend of the contestee, and had intended to vote for him, testified as follows : I was sheriff of the county of Buchanan, Missouri, and was at three different precincts of voting. I was two or three times at the Allen Hotel. The votes were taken in a room with two doors, and the members of the militia guarded each door with bayonets crossed ; and to get the privilege to go to the polls I had to ask the permission of the judges, although it was my duty to attend at the election and superintend the same. I did not then see any other interference. I was at the polls at the market-house, which was after the disturbance commenced. I started up the stairs. At the head of the stairs was person in the uniform of the militia. The old man Langston came up the opposite stairs. Langston had a ticket in his hand, and the person in uniform asked him to see his ticket. Langston handed him his ticket ; he took the ticket and tore it up, and drove Langston down. There was consider- able commotion around the market-house. I went into the room where votes were taken, and the place of voting was surrounded by a crowd of excited persons, and some seemed afraid to present their votes, and so stated to me ; but persons who favored the election of the nominees had no fears, nor seemed to dread any danger from offering to vote. In the excited crowd, and those that intimidated the persons from voting, were Union-clothed sol- diers. I was not at the court-house until after the voting there was discontinued. But when I was at the court-house the place seemed to be under the control of a set of persons who be- longed to the militia, with their arms. About 9 or 10 o'clock in the morning I saw one of those militia have a young man who was reading in my office in custody, marching him off to the guard-house. I wanted to know the reason of his arrest. He said he was ordered to arrest all persons who voted, if they had been enrolled under order 24. I went to the place where he was put under guard; there I saw the officer of the day. He said he was ordered by Colonel Severance to have all such persons arrested. While I was there the orders came and ordered the release of the prisoners, which was done. After dinner, and visiting the precincts at the court-house and market-house, I came to the conclusion that there could not be any full, fair, or free expres- sion of opinion at the polls, and did not look after the election, and did not vote, and ad- vised others that it was useless to vote. ***** I think there were at least one thousand votes that were not taken on account of improper influences brought to bear against the voters. ***** In the morning, or soon after the polls were opened at the market-house, when but few votes were taken, Hugh Louthen ana several others applied there to have their votes en- rolled, and offered to take the conventional oath. One of the judges objected, and said Louthen insisted upon his right to vote; and one of the judges told him that if he voted he would be arrested. He still said he would vote, and did vote, and I think he was arrested. I cannot say that I saw any one turned off, nor any other intimidation there. * * Question. How did you intend to vote between Bruce and Loan? Answer. I should have voted for Mr. Loan. (Pages 1, 12, and 13.) 488 CONTESTED ELECTION CASES IN CONGRESS. Cyras E. Kemp, clerk of election at St. Joseph, in Buchanan county, testifies as follows : I was clerk at the election at the court-house precinct on the 4th of November, 1862, at which Benjamin F. Loan and John P. Bruce were candidates for Congress. The election proceeded pretty quietly until about one o'clock. At that time a band of enrolled militia- men entered the court-house, at which time the voters then present dispersed. The judges left the table. I handed my book to Mr. George Merlatt, one of thejudges of the election. I saw nothing more of the book until it was returned by Captain Hax, officer of the day, and General Willard P. Hall. The poll-book was returned in about one-half hour after it was taken. The polls were then again opened, and new judges appointed by the bystand- ers, under the direction of the sheriff. The election then proceeded quietly for abouj one- half hour. There was a great crowd around the table at that time of persons who had been sworn before voting. Just at this time another company of the enrolled militia, armed, " about twenty in number, came into the room and closed around the table, and forced the voters back and scattered them in all directions. Some of them jumped out of the windows. The judges also immediately left the table, and I could not conceal the poll-book in time to prevent the militiamen from destroying it by tearing it to pieces. The militiamen seized my poll-book while I was yet sitting at the table, and tore it into strips, and threw it on the floor. They had muskets in their hands. The election was broken up for the second time, and the polls were not any more reopened at the court-house. * * * Question. State if you know about how many votes had been taken at that precinct prior to the destruction of the poll-books. Answer. I cannot exactly tell, but think there had been about one hundred votes polled. Question. If you have any knowledge, state how those votes were cast as betweeen John P. Bruce and Benjamin F. Loan, candidates for Congress. Answer. I think about nine-tenths of those votes were cast for Mr. John P. Bruce. * * * On his cross-examination this witness testifies : There were about twenty who had been sworn and ready to vote. I do not know for cer- tain who they were going to vote for, but my impression was that they were going to vote for John P. Bruce. Just at this time the company of enrolled militia entered the room, and the voters all left the table, being crowded away by the militia, and thus prevented from voting. This was at the time the poll-books were torn up. * * * * Question. Did any of these twenty men say to you or the judges of election who they were going to vote for for Congress 1 Answer. They did not. Question. Then why do you state that it was your impression that these twenty men were going to vote for said John P. Bruce 1 Answer. Simply because the votes were all being cast for John P. Bruce at that time, and that is what I based my impression upon ; and I think it was a very correct impression. Question. How do you know that these twenty men you speak of were legally qualified voters ? Answer. I do not know anything about that; but the judges were willing for them to vote, and that they had taken the conventional oath. (Page 16.) James A. Matney, one of the judges of the election at the court-house in St. Joseph, Buchanan county, testifies as follows : About 1 o'clock on the day of the election I came up to the court-house precinct for the purpose of voting. When I came there I found no judges of the election. The clerks were present with their poll-books, also quite a number of persons who seemed to be anxious to vote. After some time spent, the crowd of voters proceeded to elect judges from the bystanders, selecting James B. O'Toole, Robert Clark, and myself as the judges, and were duly qualified by the clerk of the county court to proceed with the election. After five or six votes were taken and entered on the poll-books by the clerks, from fifteen to twenty-five armed men entered, in the dress of the enrolled militia of the State of Missouri, armed with muskets, or such other weapons as the State of Missouri furnished her soldiers, with fixed bayonets. When they entered the room the first word I heard was, " Get away from here, get out from here." I took it that language was addressed to the crowd of voters around the polls, and they so understood it by their actions, as they left as quick as they could get away. As soon as the voters left, and as soon as these armed men could reach the table where the poll- books were lying, they seized the poll-books and tore them to pieces. The crowd of voters being dispersed, there was no further effort made to vote at the court-house precinct that evening. #*#**»» Without any intimidation or threats prior to or on the day of the election, there would have been between eight hundred and one thousand more votes polled at the November elec- tion, 1862, in Buchanan county, in my judgment. (Page 23.) CONTESTED ELECTION CASES IN CONGRESS. 489 P. K. Donnell, another clerk in the court-houae in St. Joseph, Buchanan county, testifies as follows : I was clerk of that election at the court-house precinct. Some time in the afternoon, soon after the polls were opened, a squad of militiamen, of enrolled Missouri militia, came in and violently seized the poll-books and took them off. They were returned in a short time, through interference of the company officers and others, and the election proceeded until again interrupted by a squad of armed men, much more numerous than the last, who again seized the poll-books and tore them into fragments, scattering them around the floor. I do know the names of the persons who did this. At the time this took place there were two pages and a half of the poll-books filled with voters' names and their votes, making the number of voters nearly a hundred, ninety per cent, of which, it is my opinion, were given for John P. Bruce. (Page 37.) John Scott testifies as to the interference at the market-house precinct, in St. Joseph, as follows : I attended the election aforesaid at St. Joseph, in Buchanan county. I voted at the mar- ket-house precinct early after the polls were opened. Some hours afterwards I was told that the military were interfering at that precinct. I immediately went there to see for myself. The soldiers, without arms, except side-arms, were there in considerable numbers, and they were preventing any one from approaching the polls, except such as they were satisfied would vote the ticket called the unconditional Union ticket, on which was the name of Ben- jamin F. Loan for Congress. If men insisted on voting the ticket called the Union ticket, on which the name of John P. Bruce appeared for Congress, he was forcibly ejected from the room by the soldiers, and in some instances I saw them kicked down the stairs, and otherwise abused. In the afternoon I was at the court-house precinct, and while there I saw some fifteen or twenty armed soldiers approach with bayonets fixed. They cleared the ante- room, and marched into the room where the polls were opened, and drove the voters out, and, as I was informed, tore up the poll-books. (Page 39.) A. M. Saxton testifies to disturbance at the court-house and market-house precincts, as follows : I went to the market-house to vote, and took the conventional oath, which was adminis- tered by one of the judges to myself and five or six others at the time. Just as we were in the act of voting several soldiers rushed in and arrested two of the six, and took them to the guard-house. In the confusion I left without voting. About 1 o'clock I went to the court- house, where voting was going on, and again took the oath. • The judges had a printed list of names ; among the names I saw mine. One of the judges, Mr. Fisher, informed me that he had instructions from Colonel Severance to prohibit every man on that list from voting, as they were disloyal. As I was about to leave, about twenty German soldiers came in and took possession of the poll-books. I returned down in the town and met Lieutenant Governor Hall coming towards the court-house, with a crowd following. I followed the crowd to the court-house, and saw the governor return the poll-books The judges that were there at first had all gone. Another set of judges were appointed, I think, by the sheriff and county clerk, and voting com- menced again. About twenty votes were taken, when the same band of men came in and drove every man out of the court-house, most of them jumped out of the windows. The soldier who seemed to be the leader tore up the poll-pooks into small pieces. The soldiers were loud in hurrahing for Loan, and using bitter epithets against those who were for Bruce. Most of the men at the court-house waiting to vote were from the country, and, so far as my acquaintance extended, were Bruce men. After this fuss I saw the country people leaving in some haste for home, without voting, and I returned to my home without casting my vote. (Page 42. ) Benjamin C. Cunningham testifies as to arrests, &c, at the market-house precinct, as follows : I went down to the market-house with the intention of voting for John P. Bruce for Con- gress, but was prevented by persons dressed in the garb of soldiers. I was standing at the . market-house precinct, and I think about three men, dressed in the garb of soldiers, said that the election should stop, and put all the voters and everybody out of the house. I went back the second time to vote, and was arrested and taken to the guard-house ; after a few moments I was released, and I did not attempt to vote any more. Question. What party seemed to be making this disturbance — the friends of B. F. Loan or John P. Bruce ? Answer. I think they were the friends of Mr. Loan. Question. What do you think would have been the difference in the election if it had been conducted fairly ? Answer. I think that John P. Bruce would have gotten eight hundred or one thousand more votes if the election had been conducted fairly. (Page 43.) 490 CONTESTED ELECTION CASES IN CONGRESS. John J. Abell testified as to disurbances at the market-house as follows : I am a resident of St. Joseph, Missouri, and have been for nine years, and am engaged in selling drugs in this city. I attended the election in November, 1862, for congressmen and other officers. Soon after the polls were opened I started to the market-house to vote. I then heard that persons were being arrested for voting. I went to General Hall, who was in command, and told him that they were arresting persons, when he expressed great surprise. I told him that I wanted to vote, but I did not want to be kept in the guard-house or jail. I then went and offered to vote, and there was considerable hesitation with the judges whether they would receive my vote or not ; but they did receive my vote, and as soon as I voted the guard arrested me. I asked him why he arrested me. He then showed me a printed list of between eight and nine hundred names. My name was on that list, and he was ordered to arrest all whose names were on that list. I asked him who gave him such authority. He said by order of Captain Hax, who was officer of the day. I was then taken to the guard- house, where I found eight others ; and myself and the others received a great deal of abuse from a parcel of Germans who were on guard there. When I went to General Hall he told me that if I was arrested to let him know. When I was taken by the guard, I wrote to General Hall that myself and eight others were confined in the guard-house for voting. He sent down and had us released. On leaving the guard-house I picked up one of the lists of those who were to be arrested if they attempted to vote, and have got it yet. It was soon rumored around that I had the list of those who were to be arrested for voting, and persons were calling nearly all day to see if their names were on the list, and if they were they did not attempt to vote, saying that they did not wish to be interrupted. I have no doubt that all those who were on that list were the friends of John P. Bruce, and I think that the most of them would have voted for John P. Bruce if there had been a fair, peaceable election. After I went to General Hall I went and voted. He told me that he wanted to know if they were arresting men for voting, and I wrote to him, as I have already stated. I think that those who created the disturbance were the friends of B. F. Loan. (Page 44.) Thomas Colligan testifies as to the extent of the interference at St. Joseph as follows : I am a citizen of St. Joseph, Missouri, and have been for thirteen years, and am forty-one years old, and am a clerk in a banking-house ; have been a member of the enrolled militia, and served four months. I was present at the election held in November, 1862, for congress- men and other officers in Buchanan county, Missouri ; as I was going to the court-house to vote I met the judges of the election coming from the court-house, and understood from them that the election at that precinct was broken up by the soldiers. I was in the enrolled militia at that time. I had my'ticket filled, and intended to vote for John P. Bruce, for Con- gress, and did not attempt to vote at any other precinct on account of the interference of the militia and others. Those who were the friends of B. F. Loan created the disturbance, and prevented myself and others from voting by intimidation. The intimidation kept a great many from voting, who I believe would have voted for John P. Bruce. In the opinion of many persons, John P. Brace's election would have been effected by eight hundred or a thousand voters who did not come to the polls on account of the intimidation. I saw a good many persons arrested, and understood that they were arrested for attempting to vote. (Page 45.) D. J. Heaton testifies as follows : I have resided in St. Joseph, in Buchanan county, Missouri, about seventeen years ; am fifty-five years of age, and am an undertaker. I attended the congressional election in No- vember, 1862, a greater portion of the day, and became disgusted by the manner in which the election was being conducted, and went home and did not vote at all. I filled out some tick- ets for several men to vote, but they were told that they could not vote that ticket ; that if they did they would be arrested. The tickets that I filled up were generally conservative tickets. Those interfering with the election were members of the enrolled militia, and were the friends of B. F. Loan. (Page 45.) Edward J. Knapp testifies as follows : At the Allen House, in the first ward, I saw an old man, John Cowie, seventy-five years of age, a lawful voter for forty years, and a peaceable, quie't man, went up to the polls, pre- sented his vote to the judges; the judges commenced calling off his vote, and a member of the enrolled militia, a German, with his uniform on, stepped up and took Mr. Cowie by the back of the neck or coat and jerked him over on to the floor, and the first place struck was his head and shoulders, and the blood gushed from his nose from the fall. Mr. Cowie was then voting what was then called here the democratic ticket. In' addition to the foregoing evidence, the record contains other testimony in- tending to show interference with the voters at other precincts in St. Joseph Reference is made to the testimony of 0. M. Loomis, (page 10,) who testifies as follows : CONTESTED ELECTION CASES IN CONGRESS. 491 Directly after I had voted, a Dutchman came up there and told the judges that if they did not take my name off the books he or thty would tear them up. I had voted for John P. Bruce for Congress. It is impossible to determine either the precise extent of the interference com- plained of, or to ascertain definitely the number of legal voters who were pre- vented or deterred, by the violence and threats of the armed militia and others, from voting. The committee have inserted a comparison of the vote cast in Buchanan county at the election immediately preceding and succeeding the one in question. From that it appears that a greatly diminished vote was cast in Buchanan county in 1862, as compared with the vote in that county at the other elections referred to. Figures are given also to show that there was not the same relative difference in that part of the same county where the election was not controlled by the militia. Buchanan county. The vote for President in this county in 1860, (page 148) was 3, 979 The vote for congressman in 1862 in this county (page 147) was 2, 268 Falling off in the vote in 1862 was 1,711 Vote in Washington township, in Buchanan county, where the chief inter- ference was. This township embraces the city of St. Joseph, in which city all of the polls for that township were held. St. Joseph is the county seat of Buchanan county : The vote at St. Joseph for President in 1860 (page 53) was 2, 420 The vote at. St. Joseph for congressman in 1862 (pages 53, 54) was. . . 910 Falling off of vote in township in 1862 was 1, 510 Vote outside of Washington township, embracing the remainder of Buchanan county, where there was comparatively slight interference : The vote for President in I860 outside of Washington township (page 53) was 1, 559 The vote for congressman in 1862 in the same territory was 1, 366 Falling off in that place only, in 1862 193 The legislative vote in 1860 in Buchanan county, when the contestant was a candidate, cast for him, was as follows, compared with his vote in 1862 : Johns P. Bruce received in 1860 1, 585 John P. Bruce, for Congress, in 1862, received 635 Falling off in his vote in 1862 was 950 The decrease in the vote of Mr. Bruce in 1862 from that of 1860 was chiefly in Washington township, as will be seen by the following comparison of the votes in that township between the two years : Vote of John P. Bruce in Washington township in 1860 1, 074 Vote of John P. Bruce for Congress in 1862 158 Falling off 916 492 CONTESTED ELECTION CASES IN CONGRESS. Mis vote in 1860 in Buchanan county, outside of Washington township, was 511 His vote for congressman in the same portion of the county in 1862 was. 477 Showing a falling off in the county outside of "Washington township of only 34 The foregoing statements show that the contestant's diminished vote in 1862, in Buchanan county, as compared with his vote in I860, was confined almost entirely to the township of Washington. The testimony shows that the violence and intimidation used in Buchanan county were confined chiefly to that town- ship, and were directed solely against the contestant and his supporters. The committee are satisfied that such violence and intimidation deterred over nine hundred voters from the polls in that township alone. The committee are strengthened in this view by a comparison of the vote given in Buchanan county in 1862 and in 1863, which is as follows: Comparison between the vote of 1862 and 1863 in Btichanan county. The vote for supreme judges in 1863 was 3, 300 The vote for congressman in 1862 was 2, 268 Showing an increase in the votes in one year of 1, 032 The contestant ran in 1862 on what was called the Union ticket, and it received in the entire county of Buchanan that year 635 votes only. In 1863, the judges who ran on the Union ticket received, in jBuchanan county, 1,564 votes, an increase from 1862 to 1863 in this county of 909 votes. The con- tested in 1862, ran on what was known as the unconditional Union ticket, and he received in the county of Buchanan that year 1,633 votes. In 1863, the judges who ran in opposition to the Union ticket received that year 1,763 votes, being an increase from 1862 to 1863 of only 130 votes. This shows that the violence used produced the desired result ; it diminished the vote of the con- testant, rather than that of the contestee. INTERFERENCE IN ANDREW COUNTY. James R. Watts, who was postmaster at Savannah, and one of the judges of the election, and who voted for the contestee, swears that there was an inter- ference with the voters of the polls where he presided, but it being outside of the window where the votes were received, he could not state from what or whom the interference came. (Page 51.) Hamilton Smith, who voted for the contestee, testifies in regard to the elec- tion at Savannah, as follows : I was at Savannah, the county seat of Andrew county, Missouri, on the day of election referred to. I was frequently at the voting place during the time that I was there ; there was a crowd around the window, keeping up a continual noise and confusion, and saying that they would not allow secessionists to vote. I saw a Mr. Hosford, a qualified voter, go to the window, and while heing sworn an individual of said crowd was stamping on said Hosford's foot, and while feeling for his ticket in his pocket he was crowded back from the window and was not allowed to vote. I saw his ticket : he was going to vote for John P. Bruce for Congress. I saw another individual pushed away from said polls by the crowd aforesaid ; this last named individual was by the name of McCrury. I applied to the judges of said election to maintain order, and I also applied to Lieutenant-Colonel Com- manding Nash, of the enrolled militia, to maintain order; said Nash stated that if called upon by the civil authorities he would do so, if he could, but doubted whether he would be able to maintain law and order on that day. CONTESTED ELECTION CASES IN CONGRESS. 493 Question 3. To whose election to Congress was the crowd who were thus interfering with voters favorable from what you heard them say? Answer 3. So far as I could leam, they were for General Loan. Question 4. How often were you at the polls at Savannah, on the day of the election? Answer 4. Six or eight times. Question 5. Did or did not the crowd alluded to above continue the aforesaid interference with voters at the several times you were at the polls ? Answer 5. They did. Question 6. Did you see any friend of John P. Bruce interfere with any one desiring to vote for B. F. Loan ? Answer 6. I did not. Question 7. Do you know the character of the crowd that was interfering with voters on said day at the polls ? Answer. 7. They were mostly enrolled militia! Question 8. Do you know that there were many voters who came to Savannah on that day to vote who did not vote on account of the interference of said crowds ? Answer 8. I do. Question 9. State, from what you know and saw at the polls, whether or not it was not difficult for a man who wanted to vote for John P. Bruce to do so. Answer 9. So far as I know, it was. Question 10. State, from what you know and saw, whether the enrolled militia around the polls offered any objections to voters voting for Benjamin F. Loan ? Answer 10. They did not. Question 11. Was it not your understanding that the intimidating language, and the re- marks by the crowd that they should not vote, applied to persons who would have voted for John P. Bruce, if they had not thus been deterred from voting? Answer 1 1. As far as I know, it was. Question 12. Do you know of any person who had returned from Price's army, or any other rebel officer's command, offering to vote on the day of said election ? Answer 12. I do not. Question 1 3. Are not many persons of your acquaintance, of the class aljuded to by you as reputed rebel sympathizers, loyal citizens, for the Constitution as it is, and the Union as it was ? Answer 13. My opinion is that a large mass of those who are reputed as rebel sympathiz- ers are loyal, and for the Constitution as it is, and the Union as it was. Question 14. Are not democrats and conservative men in this section very often denomi- nated as rebel sympathizers ? Answer 14. They are. Question 15. Are you personally acquainted with John P. Bruce, the contestant, and have you had an opportunity of learning his politics ; and if so, do you regard him as having been, during these troubles, and being now, a loyal Union man ? Answer 15. I am acquainted with him, and have always considered him loyal. Robert Elliot, who was 74 years of age, and had resided in the county for twenty-four years, testifies as follows : I did attend said election on that day, at Savannah, Andrew county, Missouri. I went up to the polls in the morning to vote at Savannah, and there was considerable crowd around the place of voting. 1 asked Captain Hobson to assist me to the polls, as I had two lame hands ; my shoulder was out of place, and a rising on my other hand. Said Hobson made me no reply. I then left the polls, no one saying anything to me ; I was unable to get to the polls. I returned to the polls again in about an hour, and made another effort to vote ; was met by an individual that I did not know at that time, but have learned his name since ; he is known by the name of Stockweather, I learn. As I advanced to the polls to get a vote, said Stockweather met me and told me that I could not vote there. I advanced as near to the crowd around the polls as I could yet. I was replied to by said Stockweather that if I staid there until sundown, I could not get to vote. I then retired and applied to some of the candidates to see if some order could not be produced, so that I might be able to get to the polls to vote. I then made a third effort to vote, but was met by a friend of mine, who told me that I had better retire, and not be insulted in that way. I told many who had not voted how I had been treated, and I made no further effort to vote, and did not vote at said election. I considered it dangerous lor me to attempt to vote. I think I would have been badly hurt if I had tried any longer to vote. I would have voted tor John P. Bruce. I conversed freely with others who had not voted, and there was a proposition on their part to go to other precincts in the county and vote, as they could not vote here. I had a conver- sation with Judge Castle, and he told me that there was perfect order at the precinct near him, which is about six miles from Savanuah. These persons that I talked with, I am of the opinion that they were generally for John P. Bruce. (Page 79.) George W. Samuel testifies, (page 82, answer 11,) that he was present at the polls, and that there was interference with voters, and a discrimination was made 494 CONTESTED ELECTION CASES IN CONGRESS. by the crowd as to who should vote, and for whom the votes should be cast, and expresses the opinion that the vote for the contestant would . have been four hundred larger in the county had there not been any interference. Jacob Hittibida (on page 85) testifies as follows : I was at said election on said day at Savannah, Andrew county, Missouri. Saw no one interfered with in trying to vote except myself. When I started up to the polls to vote there was considerable crowd about the window. I remained within a few steps of the window until more voters were called. I then started to the window for the porpose of voting. There was a man met me. He was a stranger to me by name. I had seen him frequently before and since. He said to me, Damn you, you cannot vote ; if I attempted to he would knock me down ; and he shook his fist at me, almost touching my face. My reply to him was that he was certainly mistaken in the person. This occurred in the morning of said election, probably between the hours of nine and ten o'clock. I then went to my mill, which is in Sa- vannah, Missouri, the precinct where I attempted to vote. In the evening of that day I sup- posed that the crowd around the polls had dispersed, and that I would try again to get to vote. I went the second time to try to get to vote, and succeeded in getting to the window, the place of voting, and got my hand in the window, and had my ticket in my hand to vote, and just as one of the judges reached his hand to get my ticket there was a stout man came up behind me and whirled me around and gave me a push, and placed himself in the win- dow, the place of voting. Two of the judges of the election observed to this man to go away and let me vote, as I was entitled to a vote, and that he had laid himself liable to a heavy penalty. He observed that he did not care a damn. He remained in the widow during the time I was near the polls. The judges called to me to come and vote ; and I observed to them that I was not willing to risk my life for the sake of voting. I then left, and did no try to vote that day ; it was then sundown, or very near it. Question 3. Whether, to the best of your knowedge, the crowd around the polls causing the disturbance and interference were favorable to the election of Benjamin F. Loan or John P. Bruce ? Answer 3. I think they were favorable to Benjamin F. Loan. .One reason for my thinking so is that there was a young man by the name of Miller, whom I have known ever since he was a child, and he said to me, on the day of the election, at the time I was trying to vote, "Uncle Jake, we do not want any democrats to vote." Question 4. Did you know of any man in the crowd, or around the polls, trying to intimi- date any one who came there to vote for B. F. Loan ? Answer 4. No ; I saw no signs of anything of the kind, for I was there around the polls during that day only about twenty-five or thirty minutes altogether. Joseph B. Nichol (at page 88) testifies as follows : I was at the Savannah precinct, in said county of Andrew, on that day. I saw inter- ference with men who were attempting to vote. I voted about eleven o'clock on that day. Attempts were made to prevent me from voting by challenging my vote, and attempting to push me from the polls. I saw at different other times men attempting to vote pushed back from the polls and prevented from voting. There appeared to be an organization around the polls to prevent certain men from voting. I frequently heard the cry, "Union men to the polls and rebels to their holes, " or " tories to their holes," or " secessionists to their holes." Many of those attempting to vote were held back, kept back, or thrown back, with consid- erable violence, both of words and gestures. Question 3. State whether, to the best of your knowledge, the crowd around the polls causing the disturbance and interference were favorable to the election of Benjamin F. Loan or John P. Bruce. Answer 3. According to the best of my knowledge they were in favor of Loan. Question 4. State, to the best of your knowledge, whether the men thrust from the polls were not supporters of John P. Bruce ; whether they would not have voted for John P. Bruce if permitted to vote. Answer 4. I know that some of them expressed themselves for John P. Bruce, and some I did not hear express themselves at all. Those who expressed themselves for Bruce ex- pressed that they desired to vote for him. Question 5. State, from the complexion of the crowd that took possession of the polls at said election, whether they were militiamen or civilians, and what proportion. Answer 5. My impression is, that the most of them, or a large portion of them, were mili- tiamen. Question 6. State whether they had arms ; and if so, how many ; and whether you do not think, from what you saw and heard on that occasion, that it was hazardous to a man's life to attempt to vote for John P. Bruce after the time you voted. Answer 6. I did not see any arms. I am satisfied that many would have been hurt if they had further attempted to vote after having been once checked. Question 8. State whether or not, on that occasion, the conduct of the crowd around the polls was not boisterous, threatening, and dangerous, and excelled anything in the history CONTESTED ELECTION CASES IN CONGRESS. 495 of voting in said county ; and if you have ever seen men thrust from the polls in this county as on that occasion. Answer 8. It was boisterous, and appeared to he dangerous. It excelled anything I ever saw or heard of in the history of voting in said county. If a full expression of the voters could have been had on that occasion John P. Brace's vote would have been greatly in- creased. I am satisfied in my own mind, and my opinion is, that in the neighborhood of two hundred at the Savannah precinct were prevented from voting, or did not vote on ac- count of seeing others who were prevented from voting. As to the number prevented from voting at other precincts in the county I cannot say. Question 11. State whether or not it is your opinion that all who desired to vote for Loan, at said election, were permitted to do so at said precinct. Answer 11. I think so. On cross-examination by the contestee.'this witness testified : Question, Do you know, or have you heard, that there was any interference with voters at any other precinct in Andrew county, except at Savannah, at said election ? Answer. I have heard that there was such interference at Fillmore, Whitesville, and Ama- zonia. The committee insert the following statements to show the decrease in the vote at Savannah from the year 1860 to 1862, much of which, in their opinion, is attributable to the interference at the polls: Savannah precinct, Andrew county. The vote for President in 1860, at this precinct, was 866 The vote for congressman in 1862, at same place, was 330 Falling off at this precinct alone in 1862 was 536 Fillmore precinct, Andrew county. The vote for President in 1860, at this precinct, was 306 The vote for congressman in 1862, at same precinct, was 142 Falling off at this precinct in 1862 was 164 Rochester precinct, Andrew county. The vote for President in 1860 was 338 The vote for congressman in 1862 was 182 Falling off at this precinct in 1862 was 156 Waterville precinct, Andrew county. The vote for President in 1860 was. 235 The vote for congressman in 1862 was 195 Falling off in 1862 was only 40 Amazonia precinct, Andrew county. The vote for President in 1860 was 85 The vote for congressman in 1862 was 71 Falling off in 1862 was only 14 496 CONTESTED ELECTION CASES IN CONGRESS. A statement of the entire vote of Andrew county in 1860 and 1862. The vote for President in 1860, in entire county 1. 912 The vote for Congress in 1862, in entire county 1, 112 Falling off in 1862, in entire county, is 800 LIVINGSTON COUNTY. Thomas R. Bryan, one of the judges of the election at Chillicothe precinct, in Livingston county, testified as follows, (page 102 :) I attended the election at Chillicothe; was one of the judges of the election. After the ' election had progressed some time, Lieutenant Colonel Jacobson, of the Missouri 27th regi- ment, marched into the court-house where the voting was going on, with some twenty or thirty armed soldiers. When he came up I read to him General Willard P. Hall's order that the judges of the election were to be sole judges of the qualification of voters, and the mili- tary was not to interfere. Lieutenant Colonel Jacobson then said he disregarded the order of General Hall, and I said I would report him. Lieutenant Colonel Jacobson then said to Dr. Hughes, who was standing close by: "Any man you will point out as an illegal voter I will take him out of the house." Afterward the judges swore several men, and out of that number Hughes first pointed out James Hutchinson, and said he was feeding bushwhackers ; and James Hutchinson was the first one of that lot that offered his ticket to vote, which I took. Lieutenant^olonel Jacobson ordered his men to take Hutchinson out of the house, which they did ; then there seemed to be a good deal of confusion in the house. Mr. Berry, one of the judges, said we would not go on with the election until order was restored. Dur- ing the interruption Dr. Hughes made a motion that they organize the election over and elect new judges, and then proceed with the election, and no one sanctioned it. During the time we were waiting for order to be restored the telegraphic operator brought in a despatch to Lieutenant Colonel Jacobson, which I understood was from Governor Gamble. Lieutenant Colonel Jacobson then remarked to the judges that then they might have it their own way, and took his soldiers and left. Question. Did Lieutenant Colonel Jacobson and the soldiers that were with him offer to vote? Answer. They did not. Question. Was Dr. Hughes an officer of the election? Answer. He was not. Question. Who is Dr. Hughes? What was his occupation at the time referred to, and what his politics ? Answer. He was editor of the Chillicothe Constitution at this place, and I regard him as a radical abolitionist. Question. Did any of the voters that were sworn at the same time that James Hutchinson was vote at the time said Hutchinson was taken away from the polls ? Answer. I recollect that Robert Steen, one of the lot sworn at the time referred to, voted during the confusion. He (Steen) called on Lieutenant Colonel Jacobson to make the judges let him vote, and I told him we needed no making, and he handed me his ticket and voted the emancipation ticket. Question. What effect did the aforesaid interference of Lieutenant Colonel Jacobson and his armed soldiers have upon the election and the voters ? Answer. My opinion is, that a great mauy of the country people went home without voting. John Garr, senior, another of the judges, on pages 105 and 106, corroborates the statement of Mr. Bryan, and adds the following, among other things : I attended the election at Chillicothe as one of the judges; we came in 10 open the polls, and expected to have some disturbance, for this reason, that I saw the military going to Spring Hill, in Jackson township, in this county, and I saw a poster near the gate at the en- trance to the court-house yard, and one in the court-house where the polls were opened; they were large, printed posters, with the words on each end : " Special order ! No disloyal person shall be allowed to vote." We had received but few votes, when Dr. A. S. Hughes came in and told us that nodisloyal person shquld be allowed to vote there; the first vote he objected to was John Garr, jr., because he had stated, if he could not vote the ticket he wanted to he would vote for black Bill ; this objection was overruled, and he voted. Hughes objected to two or three or more on the ground that they were disloyal, but they were allowed to vote. About this time Lieutenant Colonel Jacobson, with his military force, appeared at the polls, and he gave us orders that we should not receive the vote of any disloyal person, and Dr. CONTESTED ELECTION CASES IN CONGRESS. 497 Hughes was to point them out, and if they attempted to vote, he ( Jacobson) would take them' out of the house. I told him we would go by the law of the State convention, Governor Gamble's orders, and General Hall's instruction, and to the letter of the law as we understood it; he then went and brought into the court-house a part of his soldiers to take said Hutch- inson out. Captain R. S. -Moore, of the -enrolled militia, ordered Lieutenant Colonel Jacob- son to halt ; said Jacobson pressed Moore aside and said, I will overpower you ; Captain Moore replied, I surrender; the lieutenant colonel (Jacobson) then pushed said Hutchin- son violently towards the military, and they then put him out of the court-house. Dr. Hughes said the election was a farce, and called on the loyal people to sustain him and the country, and to come to him and they would open a poll of their own, which created a considerable row. Then I went to Colonel Shanklin to send a despatch to the governor, which he sent, and received for answer that the said «J7th regiment must leave the court- house and go to their quarters, which they did. * * * * * Question. Are not all men who are for the Constitution as it is, and the Union as it was, j called disloyal in this "section by the class of politicians to which Dr. Hughes belongs 1 (Objected to by A. S. Harris, agent for B. F. Loan.) Answer. That is my understanding ; that they class all such with the secessionists, or as disloyal. Jacob L. Myer"s, (page J 07,) who was the clerk of the election at the Chilli- cothe precinct, testifies as follows : I was chosen by the county judges as clerk of that election at Chillicothe precinct, and acted as such on the morning of the election. Early in the day I saw Dr. Hughes putting up posters, on which was, " that no disloyal person should vote." Fearing that a difficulty would likely originate from this thing, I did not want to act as clerk. The judges insisted I should, and I did. We opened the polls, and some votes were taken, when Dr. Hughes interfered, -challenging votes. -The judges got into a controversy with said Hughes, and wanted to know on what grounds he objected. They told him they had the ordinance of the convention to go by, and the oath therein prescribed to administer to voters, and they had no right to reject any man that would take this oath. Hughes then gave the judges to understand that there would be a squad of men here to see that none but loyal men, such as he claimed to be, should- vote. In a few minutes the squad of men were right in our midst. Lieutenant Colonel Jacobson, of the 27th Missouri regiment, at the head of some twelve or fourteen men, armed and equipped with United States muskets, gave the judges to under- stand that no man, or no set of men, should vote that was disloyal to their government. At that time we were recording James Hutchinson's vote. Said Hughes challenged his vote, and Lieutenant Colonel Jacobson ordered Hutchinson to get out of the house ; that he should not vote. Said Hutchinson called on said Hughes to bring up any charge where he was disloyal. Hughes replied that he (Hutchinson) sympathized with or aided bushwhackers, or was aiding the party opposed to the government. Lieutenant Colonel Jacobson then . ordered his squad to put Hutchinson out of the house, which they did. That being the case, the judges notified Lieutenant Colonel Jacobson that they were the judges, and acting under oath, and protested against his actions, and demanded of him and his squad to retire, or they would adjourn. the election. He would not do it, and the judges postponed the elec- tion for the time being. Colonel Shanklin, of the enrolled militia, requested the judges to hold on ; that he would telegraph to the governor. We waited a space of time. The squad of soldiers remained in the house in a threatening attitude towards the judges and clerks, .and talking of making them take votes. After a while I folded up my poll-book and put it in my pocket. A despatch came from the governor, after a while, requesting Lieutenant Colonel Jacobson and his squad to withdraw. After the said lieutenant colonel read it they retired ; Dr. Hughes became insulted, and left with them — at least, I thought he was in- sulted. After that we opened the polls, and voting commenced. Question. What effect had the aforesaid interference on the voters, from what you saw and knew ? Answer. It created a great excitement, and prevented a great many from voting, through fear. The committee insert the following statement to show the difference in the vote between 1860 and 1862 in some of the precincts, and in the county of Livingston : Chillicothe precinct. The vote for President in 1860 was 619 The vote for congressman in 1862 was 265 The falling off in 1862 in this precinct was 354 H. Mis. Doc. 57 32 498 CONTESTED ELECTION CASES IN CONGRESS. The vote for supreme court judges in this same precinct in 1863 was . . 512' The vote for Congress in 1862 was 265 Increase in vote in 1863 in same precinct 247 County of Livingston vote. The vote for judges of supreme court in 1863 963 The vote for congressmen for 1862 was, in the entire county 683 The difference is in favor of 1863, of 280 From this statement it appears that the increase in the vote of the entire county of Livingston in 1863 over the vote of 1862 was 280, and that 247 of this increase was in the precinct of Chillicothe alone, where the interference with the election is proven to have occurred. The vote for President in 1860 in Livingston county was 1,469 The vote for congressman in 1862 was 683 Falling off in 1862 was, in the county 786 ATCHISON COUNTY. Silas Puryear, an attorney-at-law, who was in the town of Eockport on the day of the election, testifies as follows, (page 115 :) I had .'heard previous to the day of election that there would be interference, and on the morning of election was fully satisfied such would be the case from seeing a number of enrolled .militia in town with arms. Soon after the time for opening the polls, I heard on the street that William Hunter, who was a justice of the county court, John Smelsef, William King, and others, had been prevented from voting. I did not myself go to the court-house, but was near enough to see that the door was guarded by militia, with guns, bayonets, &c. There were a good many men in town who did not attempt to get in to vote after seeing how things were conducted. I did- not myself. I talked with E. L. Clark, one of the militia, and remarked that I supposed it was not worth while for me to attempt to vote. He said it would be useless ; that they were acting under the orders of General Curtis. Question. What did you understand E. L. Clark, one of the militiaj to mean when he said he was acting under the orders of General Curtis, and what did you understand the militia- men were doing with the election 1 Answer. I understood that the militia had construed some order of General Curtis to au- thorize them to superintend and control the election, and to decide, independent of the judges of election, who was and who was not entitled to vote ; and such they did, in fact, do. The voting was in one of the offices, the only door to which was inside the court-house, and the outer door was guarded by militia. Question. What was the character of the representations made to you by parties who had attempted to vote that deterred you from voting 1 Answer. Some of them were very rudely thrust from the door and threatened with violence ; one of them, Sampson Doughty, was pushed down, and I heard, though not from him, that a stone was thrown at him. Question. Who were these voters for that were prevented from voting for congressman? Answer. So far as I know, they were for John P. Bruce. I had heard, previous to the day of election, that voters would not be permitted to vote for Bruce. It is my opinion that from two hundred and fifty to three hundred were prevented from voting tor said Bruce. Most persons whom I heard express an opinion, put the number at three hundred in Atchison county. This witness further testifies that he was employed by the contestant to take evidence in Atchison county for him relative to this contest, and says : Question. State the reasons why you did not take the depositions. Answer.. The reasons are partially given in the letters above referred to. I heard on several occasions that said Bruce would not be allowed to take depositions in said case; that if he came for that purpose, he would be mobbed. These threats, I understood, were by A. B. CONTESTED ELECTION CASES IN CONGRESS. 499 Durfee, esq. I also heard threats of mobbing any one who would act as his counsel. Not- withstanding, I spoke to Jacob Hughes and William Sparks, the two justices of the peace, who promised to attend and take the depositions, but the day before the day for taking said depositions Sparks informed me he would not act; that the militia would not permit the taking ; that when witnesses came they would be spattered with rotten eggs. I then went to see Judge Needles, who promised to attend if well enough. . On my return to Eockport I was informed there was a notice posted up requiring me to leave the county, on pain of being hung if found in the county next day. After reflecting on all the circumstances and threats, I was convinced that the depositions could not be taken, and that to attempt to do so would result in the witnesses being abused, and perhaps endanger their lives. The witnesses were mostly old men and the best men in the county, and I thought it best not to endanger nor expose them to insult, when nothing could be accomplished by so doing. Question. Did you, at any time on the day of said November election in 1862, or after the same, converse with the witnesses whose depositions John P. Bruce desired you to take in regard to the election aforesaid 1 Answer. I conversed with some of said witnesses on the day of election, and with some of them afterwards. Question. State, from what they told you, what you would have been able to prove by those you conversed with. Answer. I expected to prove, by several of them, that they were rudely thrust away from the polls, both at Eockport and at other voting places in the county ; that they saw the polls guarded by bands of military, both at Rockport and at other voting places in said county ; and that a great many legal voters were prevented and deterred from voting by the improper conduct of said militia ; and that, in their opinion, John P. Bruce lost, by such interference, about three hundred votes in said county. This is what I expected to prove from the con- versation I had with the witnesses. Question. State, from conversing with the witnesses and others, if the interference of the militia was not carried on at all the voting places in the county pretty much in the same way it was at Rockport. Answer. I understood that the same kind of interference was carried on at all of the voting places in said Atchison county, except at Irish Grove precinct and at Linden. At Linden I understood the attempt was made, but prevented by Thomas Shrack. Rockport, March 5, 3863. Dear Sir : I have just returned from Judge Needles's. I found him not well, but he promised to come up to-morrow if well enough. I am, more than ever, convinced that we cannot take the testimony. On returning this evening, I was informed that a notice was posted up requiring me to leave the county before to-morrow, threatening me with death if iound iu the county after that time. Under all 'the circumstances, I shall not attempt to take depositions, as to do so would only result in having myself and the witnesses abused Yours truly, S. PURYEAR. John P. Bruce, Esq. Reference is hereby made to the letters above mentioned, which are printed on pages 119, 120, and 121, for further particulars as to inability to procure more testimony in Atchison county. Vote in Atchison county. The vote in Clay township, at Eockport precinct, for President in 1860 was 366 The vote for congressman in 1862, there being interference, was 134 The falling off in 1862 in this precinct was 232 The vote in Clark township for President in 1860 was j». . . . 59 The vote in same township for congressman in 1862, there being no inter- ference, was 59 No falling off. The vote in Benton township for President in 1860 was 40 The vote in same township for congressman in 1862 was 36 Palling off of only 4 500 CONTESTED ELECTION CASES IN CONGRESS. The vote for the entire county of Atchison for President in 1860 was. . 941 The vote for the entire county in 1862 for congressman was 675 Falling off in 1862 was 266 VOTE IN DE KALB COUNTY. John C. Brooks, (page 132,) who was constable of Washington township, and superintended the election, testifies as follows : I attended at Stewartsville, the voting place for Washington township, in De Kalb county, Missouri, at the said election, and was constable, as the law made it my duty to superintend the same. During the time of the election I saw two men driven from the polls by the enrolled militia, to wit, Harrison Boaz and George W. Rose. The soldiers told Har- rison Boaz and Rose that they could not vote, and had to get away from the polls. It being my duty as a civil officer to keep the peace, I made efforts throughout the day to see that every qualified voter had access to the polls. During the whole time I met with opposition from the captain of the company of the enrolled militia, whose efforts were all made in favor- of Loan, and to prevent ail persons from voting the Bruce ticket. I. am satisfied that the captain ordered his men to take one vote from me whilst Wm, Moore was writing his ticket, and afterwards they brought up the same man with a Loan ticket and coerced him to vote different. The man told me to make out his ticket for Bruce, as he wanted to vote for him. This statement was made to me before the soldiers took him away. Question. State your opinion, from all the facts, that came to your knowledge, how many voters were prevented from voting by intimidation or interference by the enrolled militia or others with the polls, and with voters from voting on the 4th day of November, 1862, at the election in De Kalb county, Missouri. Answer. I cannot say exactly how many voters were thus prevented, but I am satisfied that if there had been no interference with the election in 1862, John P. Bruce would have carried De Kalb county by a majority of over one hundred votes for Congress. Andrew J. Gibson testifies as follows, (page 133 :) I attended the election at Stewartsville on the 4th day of November, 1862, and I went down to the polls late in the evening, having been at work all day, with the intention of voting. Just as I got there the enrolled militia were running off from the polls Harrison Boaz, who had a ticket in his hand to vote, and from conversation I had with Boaz it was a Bruce ticket he desired to vote. When I saw this I was afraid to vote, as I had a Bruce ticket and intended to vote for him for Congress, and I thought if they run Boaz off, who was a larger man than me, that there was not much chance for a small man like- me to vote. From what I saw of the conduct of the enrolled militia, who were friends of Benjamin F. Loan, I was satisfied that there was not much chance there for the friends of Bruce to vote. Those who wanted to vote for Loan had no trouble to get to vote. The effect was to pre- vent men from voting for John P. Bruce. The militia had side-arms, and appeared to be boisterous and noisy, and I considered it dangerous to offer to vote for John P. Bruce for Congress. I think if I had had a Loan ticket I could have shot it in mighty nice. Captain McDonald was in command of the company of enrolled militia that day. Duff L. Vaughan testifies as follows, (page 134 :) State what occurred whilst you were at said election. Answer. Whilst I was in town I ascertained that no man could vote without he went the Loan ticket. As I intended to vote for John P. Bruce for Congress, I left town, and did not vote. Quest-ion. How did you understand this Was to be effected ? ' Answer. I understood that the bayonets were guarding the polls ; and 1 saw the enrolled militia with guns on the platform near where they were voting, and I understood from the bystanders and the crowd around that the militia would not let any one vote unless they Voted the Loan ticket. Question. Did you hear of any threats previous to the election that men would not be permitted towote for John P. Bruce? Answer. I heard some of the militia say that nobody would be permitted to vote for John P. Bruce ; that nobody 1 should vote for him at the Stewartsville precinct on the day of the election". " The'ard this some days before the election. Question. If there had been no interference by the enrolled militia, nor no intimidation, what would have been, in your opinion, the result of the race for Congress between John P. Bruce and Benjamin F. Loan at the election in De Kalb county, November 4, 1862? Answer. I believe, from the best of my knowledge, that John P. Bruce would have car- ried the county of De Kalb by a majority of one hundred and fifty votes. Question. Are you pretty well acquainted with the people of De Kalb county? Answer. I am; and have frequently canvassed the county. I do not think there is any man of my age better posted as to the i , """'» +*""» T »■" CONTESTED ELECTION CASES IN CONGRESS. 501 Mr. Harrison Boaz testifies as follows, (page 135 :) I did attend the election at Stewartsville on said day, and had been engaged all day in bedding the cars for cattle to be shipped off on the Hannibal and St. Joseph railroad, and in the evening came in to vote with a ticket with the name of John P. Bruce for Congress on it ; and when I presented myself at the polls John Crowley, a member of Captain McDonald's enrolled militia, said to me, "What are you coming here for?" I replied, "To vote." He said, "God damn you, leave, or I will knock you out," and he drew his fist back to hit me. There were by at the time about ten or twelve men of the enrolled militia; some of them with side-aims. I got away from them as quick as I could, and did not come down into town that evening any more. This was the first time I was ever prevented from voting before, and I said I believed that I never would try to vote any more. I should have voted for John P. Bruce for Congress, if the enrolled militia had not thus interfered. Question. Did you know or hear of any interference'on the part of the friends of John P. Bruce to prevent persons from voting for Loan or Branch for Congress ? Answer. I did not. Question. Do you know of any particular reason why you were prevented from voting ? Answer. None, unless that I was going to vote for John P. Bruce. I had always been as loyal to the Union as any man in the State. James D. Arterbury testifies as follows, (page 136 :) I was at Stewartsville on said election, and was on duty as a member of the enrolled militia in camp ; I was at the polls at one time during the day, when George W. Rose, attorney-at-law, was told, when he offered to vote, that he could not vote ; this was done by members of Captain McDonald's company of enrolled militia ; when they told him this he walked out of the house where they were receiving votes, and did not persist in an attempt to vote. There were a good many of the enrolled militia in the house at this time, and they had side-arms ; they seemed to be determining who should vote, and who for. Question. Who were these enrolled militiamen for, who refused to let George W. Rose vote, as their choice for Congress ? Answer. For Ben. Loan. Question. Were any of the enrolled militia for John P. Bruce for Congress ? Answer. Several of Captain McDonald's company were. Question. Did any of the enrolled militia who were for Bruce for Congress interfere to permit any one from voting for Loan or Branch, or any one else ? Answer. No, sir, not that I know of. Question. Did you or not understand, from what you saw and heard on the day of said election, that the object of the enrolled militia, who were the friends of Loan, that they were there to prevent men from voting for John P. Bruce for Congress, and did so prevent voters from so voting ? Answer. Yes, sir. George W. Rose, an attorney-at-law, testifies as follows : George W. Rose, of lawful age, being produced, sworn, and examined on the part of the contestant, deposeth and says : Question by John P. Bruce : Where do you live, and how long have you resided there, and your age 1 Answer. I have resided in De Kalb county about twenty months, and the State of Mis- souri about seven years ; am about 30 years old. Questipn. W nat ia yo ur profession ? Answer. I am a practicing lawyer. Question. Did you attend the election held on the 4th day of November, 18(32? and if so, state what occurred at the place you attended. Answer. I was at Stewartsville at the said election, and in the evening went towards the voting place with the intention, and a ticket, to vote for John P. Bruce ; before the door of the house where the election was held two membors of the enrolled militia were posted, with sabres and pistols, apparently guarding the door ; they were acquaintances of mine, to wit, Samuel Chenowith and Robert Ellis. So soon as they saw me coming to the door they remarked there comes one of the " Bruce men," and said to me that I could.not vote then at these polls for John P. Brace for Congress. I commenced reasoning with them ; and insisting upon my right to vote, I told them they were acting out of their sphere of duty ; ffiey replied that it was no use to talk about it — I could not vote ; not that they had any objection to me ; that they knew how I was going to vote, and that was enough. I found it was useless to persist, as I was unwilling to force a passage through a guard who had sabres and pistols. I should have xoted for John P. Bruce for Congress if I had been allowed to get to the polls. Question. Did you near of any difficulty, previous to your going to the polls, on the part of those who desired to vote for John P. Bruce, in their getting to vote? Answer. There seemed to be a general understanding that unless a man voted for Loan there would be some trouble in getting to vote. 502 CONTESTED ELECTION CASES IN CONGRESS. Andrew J. Coy testifies as follows, (page 137 :) I attended the election at Stewartsville for Congress in 1862. I was near the polls on the day of election, and intended to vote, tat saw Captain McDonald, of the enrolled militia, and some 15 or 20 of his men engaged in preventing men from voting. I understood Captain McDonald to say that men could not vote there unless they voted the way he wanted them to. Captain McDonald was the commander of the post, and he was for Ben- jamin Loan for Congres, and engaged in preventing men from voting for John P. Bruce for Congress. I intended to vote for Bruce, but from what I saw how others were refused the privilege of voting for John P. Bruce, I concluded it was no use for me to try to vote. Question. Did you vote at the late election for supreme judges in 1863 ? Answer. Yes, sir. Question. How was the election in November, 1863, conducted? . Answer. Very well; .there was no difficulty in voting; the same men that were refused in 1862 voted in 1863 without any trouble or objection. No testimony was produced before the committee relative to any interference in De Kalb county, except the foregoing. There were three candidates for Congress in the seventh congressional dis- trict — John P. Bruce, Harrison B. Branch, and Benjamin F. Loan. The majority of General Loan over Mr. Bruce was 2,028. The following tables are appended to illustrate the relative vote these gen- tlemen received in the counties where there is not alleged to have been any in- terference, as compared with ihose where interference is proved to have occur- red. Exclude the counties where there were interferences proved, (except Livingston, where the interference was all agamst Bruce,) and count only the counties where there was a fair election, and the vote is as follows : Counties. 1862. Bruce. Branch. Loan. 357 , 429 249 481 328 247 503 169 376 190 27 407 687 363 419 303 16 127 454 306 248 208 324 «10 116 Worth 217 179 3,139 2,539 2,092 Bruce 3,139 Loan 2,092 Bruce's majority 1,047 Branch 2,539 Loan 2,092 Branch's majority 447 (See printed testimony, page 147.) CONTESTED ELECTION CASES IN CONGRESS. 503 Exclude the counties where there were interferences pro.ved, (except Living- ston, where the interference was all against Bruce,) and count only the counties where was a fair election, the vote is as follows between Bruce and Loan : 1862. Bruce. Loan. 357 429 249 481 328 247 503 169 376 454 306 248 208 324 40 116 Worth 217 179 3,139 2,092 Bruce's vote 3, 139 Loan's vote 2, 092 Brace's majority ■. 1, 047 (See page 147, printed testimony.) Exclude the counties where there were irregularities proved, and count only the counties where there was a fair election, the vote is as follows : Daviess . Gentry . Grundy . Harrison Mercer . Putnam . Sullivan Worth. . . 1862. Bruce. 2,763 Branch. 357 190 454 429 27 363 249 407 248 481 687 208 328 363 324 247 419 40 503 303 116 169 16 217 2,412 Loan. 1,913 Bruce 2, 763 Loan ,-. 1, 913 Bruce over Loan 850 Branch 2, 412 Loan 1. 913 Branch over Loan 499 504 CONTESTED ELECTION CASES IN CONGRESS. Exclude the counties where there were interferences proved, and count only the counties where there was a fair election, the vote between Loan and Bruce is as follows : , 1862. Bruce. Loan. 357 429 249 481 328 247 503 169 454 306 248 208 324 40 136 Worth 217 ■» 2,763 1,913 Bruce 2, 763 Loan . . .'. '.'. .............. .'. .... . 1, 913 Bruce's majority. 850 The vote for President in 1860 in this district was 21, 938 The vote for congressmen in 1862 in this district was ' 13, 803 A falling off of *. 8, 135 The vote in 1863 in this district was for judges 16, 229 The vote in 1862 was for congressmen , 13, 803 ; An increase in 1863 of 2, 426 There is some evidence tending to show interference at the polls in 1863' (see pages 40 and 35.) Every one who is acquainted with and appreciates the form of our govern- ment will concede that elections should be free from violence and intimidation, and that no one should be vested with the right to determine who are, and who are not, qualified voters, save those who are by law clothed with, and by law made responsible for, the proper performance of that duty. The committee are aware that the right of the elective franchise is intended for and should be extended to those only who are the friends of the government. There must, however, be some legally constituted tribunal to determine who are friendly and who are unfriendly to the government, and some test furnished such tribunal by the law by which such determination can be regularly and properly "made. The moment it is conceded' that any irresponsible body of men have the right to decide who are, and who are not, qualified voters, or are suffered by threats, violence, or intimidation of any kind to deter persons from the polls, that moment an election becomes a mockery. In the case of Mis- souri, although the State in many portions had been the theatre of strife and civil war— although some of its citizens had rebelled against the government, yet good order had been so far restored that the civil authorities had full sway, and the law had been,' by State authority, adapted to the new condition of CONTESTED ELECTION CASES IN CONGRESS. 505 things, so aB to sift by a prescribed and proper oath those who were worthy from those who were unworthy, by their votes of choosing the officers who were to administer the civil government. There was, in reality, nothing which should have prevented a full, free, and fair expression of opinion by every qualified voter. There was, in fact, no necessity, in the seventh congressional district, so far as any disloyal persons are con- cerned, of providing any force to protect or guard the sanctity of the ballot-box. The candidates are conceded to have been loyal persons. The constitution of the State and the oath prescribed by the convention were sufficient of them- selves, when administered by the judges of elections, to preserve the purity of the ballot-box. The only danger that either the civil or military authorities seemed or had any occasion to apprehend was, as the Order No. 45 expresses it, that the election " would be an occasion when angry passion, excited by the war, might produce strife, and prevent the full expression of the popular will in the selection of officers." The order expressly says that the oath prescribed by the convention to be taken by every one as a condition precedent to the , right to vote, and the heavy penalties fixed upon those who might take the oath falsely, were sufficient safeguards by themselves to keep unfaithful and disloyal persons from exercising power in the State. The order stated, further- more, "that no person must be allowed to interfere with the freedom of those qualified to vote under the ordinance." General Order No. 33, issued in pursuance of Order No. 45, in the seventh congressional district, to the officers and soldiers of the militia of that district, expressly said, " the military should bear in mind that they are not the judges of the qualifications of voters ; that duty is devolved by law on the judges of the election. If these officers either admit improper persons to vote, or exclude proper persons from voting, the statutes of the State provide an ample remedy. The militia will carefully abstain from all acts calculated to interfere with the freedom of election." It affords the committee pleasure to be able to say, that the evidence in this case nowhere discloses anything tending to show that any superior officer of either the State or federal government manifested any other than an earnest desire to secure a full expression of the popular will at this election, and that such expression should be freely given without intimidation or molestation. The judges, so far as appears, with one or two exceptions, conducted the elections with entire fairness, and there was nothing on the part of civilians to warrant or justify the interference of the militia. But the evidence does disclose ample proof that a portion of the militia in certain localities disregarded entirely. the injunctions given them in the orders before , mentioned, and in many instances, in violation of their duty as good citizens, and of the commands promulgated prior to the election by those orders to them as soldiers, assumed to determine who should and. who should not vote, and for whom votes should be cast, and by threats, violence, and by various modes of intimidation, so far interfered with the election as, in the opinion of the committee, to render the election a nullity. The minds of the voters in Missouri had not become as quiet as they were prior to the occurrences of the war, and the great agitation it had produced. The fears of the people were more easily excited and their- passions were more readily aroused than prior to the commencement of the rebellion. Violence threatened or force used would, under such circumstances, naturally produce sudden and great excitement, and it would spread speedily through the com- munity. In the civil commotion unwarranted arrests had been made, outrages, committed, personal rights had been violated, and property plundered and de- stroyed, and the grievances of the people could not in such times be effectually redressed. This condition of the popular mind facilitated the spread of the threats made,' and rendered them more effectual than they would have been in times of long peace and quiet. This condition of the people should be borne ; in mind when considering the probable effect the military interference had upon 506 CONTESTED ELECTION CASES IN CONGRESS. the election in question. If due weight be given to these considerations when examining the testimony in this case, the committee have not any doubt they will lead the mind of the House to the same conclusion reached by the com- mittee, after a full and patient hearing of and deliberation upon the allegations of the parties. The committee recommend the passage of the following resolutions : Resolved, That Benjamin F. Loan is not entitled to a seat in this house as a representative from the seventh congressional district of Missouri. Resolved, That John F. Bruce is not entitled to a seat in this house as a representative from the seventh congressional district of Missouri. All of which is respectfully submitted. JOHN GANSON, On behalf of the Committee. MINORITY REPORT. Mr. Upson, from the Committee of Elections, submitted the following views of the minority : The undersigned, a minority of the Committee of Elections, to whom was referred the memorial of John P. Bruce, contesting the right of the Hon. Benja- min F. Loan to a seat in the 38th Congress as a representative from the seventh district of Missouri, having considered the same and the evidence submitted in reference thereto, and finding themselves unable to concur in the conclusions set forth in the report of the majority, beg leave to submit the following report : The seventh district in the State of Missouri is composed of the counties of Buchanan, Andrew, Holt, Atchison, Nodaway, Worth, Gentry, Harrison, Mercer, Grundy, Putnam, Sullivan, Livingston, Daviess, and De Kalb, being in all fifteen counties ; and the election in contest was held on the 4th day of November, A. D. 1862, pursuant to an ordinance of the Missouri State conven- tion, passed June 13, 1862. Most of the evidence and papers in the case will be found in Mis. Doc. No. 13, of the present session, and the ordinance above referred to is on page 57 of the same. The whole number of votes returned as cast at said election was 13,803, of which there were returned for Mr. Loan 6,582, for Mr. Bruce 4,554, for Mr. H. B. Branch 2,665. for Mr. S. A. Richard- son I, and for Mr. R. M. Stewart 1, making Mr. Loan's returned majority over Mr. Bruce 2,028 votes. The grounds of contest, as set forth by contestant in his notice, are as fol- lows, viz : 1st. For interference by portions of the armed militia of the State of Missouri with the polls, and the tearing up of poll-books, and the interference with voters at the polls by your friends, whereby persons desiring to vote for me were prevented and intimidated from voting and rudely driven from the polls ; and by thus preventing persons who would have voted for me I lost, in the counties named below, the number of votes set opposite each county : Buchanan county 800 Andrew county '. 400 Holt county 400 Atchison county 400 Nodaway county * 300 DeKalb county 100 Daviess county ., 200 Livingston county '. 600 Making a total of 3,200 which would have elected me over you, and made my entire vote 7,754. 2d. Improper interference and improper conduct of officers of the election in excluding qualified voters from voting for me in the counties named in reason 1st. 3d. Intimidation on the part of portions of the .militia of the State of Missouri and other armed soldiery, by threats intimidating voters from attending the election, who would have voted for me had they attended. CONTESTED ELECTION CASES IN CONGRESS. 507 4th. Interference of portions of the militia of Missouri by forcibly driving voters from the polls who hud tickets in their hands ready to vote for me. 5th. Interference of portions of the militia of Missouri, in standing at voting places, with muskets in their hands, and demanding the tickets of voters ; and when shown with my name on them, the tickets were torn up by your friends, and the parties told that they could not vote that ticket ; and persons who were legal voters were thus prevented from voting for me. Some other allegations are contained in contestant's notice, but as they are not insisted upon now by him, and as no evidence has been taken iu support of them, it is not necessary to notice them further. The respondent, the sitting member, in his answer, not only denies all these various allegations of the contestant, but also reserves to himself all benefit and advantage of objection to the said notice of the contestant ; and on the hearing before the committee he insisted upon his objection to said notice that it did not specify with sufficient particularity the grounds upon which the contestant relies. The statements contained in the notice of the contestant are very vague and indefinite ; the election precincts, or- the townships where the alleged irregular- ities and improper interferences took place, are not specified ; the names of the persons who were interfered with or prevented from voting, or were intimidated from attending the election and voting, are in no case given ; the military, or persons interfering with or preventing electors from voting, are not pointed out ; and, generally, the statements lack that definiteness and precision essential in pleading, and which are necessary to inform a party what he is called upon to answer, where the alleged irregularities or improper interferences are claimed to have taken place, and what he must be prepared "with evidence to meet and establish or refute. The objection is .also predicated upon the statute of 1851 ; and the law in such cases is ably commented upon, and decisions referred to, in the cafce of Kline vs. Verree, decided during the second session of the last Congress. The undersigned submit that, on this ground, all evidence to support such allegations might properly be rejected, and the case be dismissed without further investigation; and it will also be seen that the respondent has not deemed it necessary, under the circumstances, to take any testimony on hia behalf in this case. But the undersigned, while holding this opinion, have, nevertheless, thought proper to go over the whole ground covered by the contestant in his testimony, and to lay before the House their conclusions on the facts which therein appear, ao far as applicable to this contest. All the evidence taken is that of the contestant, and he has seen fit to offer no testimony as to the election in Daviess, Holt, and Nodaway counties, three of the counties named in his notice ; and there'are also seven other counties in the district which are not named in the notice and concerning the election, in which no testimony has been taken, making ten of the fifteen counties compos- ing the district in which the election is not questioned; and all letters of per- sons, the friends and agents of contestant, in regard to any of those counties which irregularly appear in the printed case hereinbefore referred to, (Mis. Doc. No. 13,) were objected to by the respondent when offered on the hearing, and not being competent testimony, even if they contained anything material to the issue, are not to be considered or received as evidence in the case, as is also the case -with the ex parte deposition of George D. Tolle. The five counties to which the evidence relates are those of Atchison, Livingston, Andrew, De Kalb, and Buchanan, and it has been thought best to consider the evidence applicable to each county separately. But before doing this, it may be well to notice briefly some proceedings having reference to this election which had taken place in this State preparatory to the holding of the same. The condition of Missouri, and the events transpiring there, from the breaking out of the rebellion up to the time of the holding of this election, are now mat- 508 CONTESTED ELECTION CASES IN CONGRESS! ters of history, of which this house will take notice and will consider in examin- ing and weighing the evidence in this case, and in coming to a final conclusion thereon. It is sufficient here to remark, that many of her citizens at the first openly espoused the cause of the rebellion, and for a time the loyal citizens, aided by the federal forces, had to maintain a fierce, bloody, and devastating struggle on her soil with rebels in arms, in order to assert and maintain the supremacy of the Union and the loyal State organization; but at the time of holding this election the Union forces had driven out the rebel armies into the State of Arkansas. The State convention of Missouri, which has been called and chosen for this emergency, recognizing the fact that disloyal men were to be found in the State who were not entitled to the rights and privileges of electors, and that it was necessary and proper to distinguish between loyal and disloyal citizens in the exercise of the elective franchise, prescribed by ordinance, prior to the election, as an additional qualification for an elector, the taking of a certain oath to test his loyalty before he should be permitted to vote, (the form of which oath will»be found in Mis. Doc. No. 13, on page 57,) and with, perhaps, an excess of clemency or liberality in this respect, allowed all citizens who would take said oath, and who would therein swear that they had not since the 17th day of December, 1861, wilfully taken up arms or levied war against the United States or against the provisional government of the State of Missouri, to vote, even though prior to that date they had taken up arms and been engaged in waging war in open rebellion against the national and State governments. By General Order No. 24, issued by General Scho-field August 4, 1862, (page 62, Mis. Doc. No. 13,) all the loyal men of Missouri, subject to military duty, were required to be organized into companies, regiments, and brigades, and all disloyal men and those who had at any time been rebel sympathizers were ordered to report themselves and be enrolled as such and to surrender their arms, and were to be permitted to remain at home so long as they should quietly attend to their ordinary and legitimate business, and not in any way give aid or comfort to the enemy, and were not to be organized into companies nor required or permitted to do duty in the Missouri militia. Also, by Order 45 of the commander-in-chief of the State of Missouri, Governor Gamble, dated at St. Louis, October 23, 1862, (which order was read in evidence before the committee, but is riot printed in the case, but will be found in Mis. Doc. No. 16, page 183,) eertain rules and regulations were prescribed for holding the election and providing for protecting the polls by the military authorities wherever it might be deemed necessary, and the convention oath is referred to therein, and all electors otherwise legally qualified, who would take such oath, were to be permitted to vote, and punishment was provided in case of any improper interference by persons in the military service. Brigadier General • W. P. Hall, commander of the 7th military district, by Order No. 33, issued at St. Joseph, in this district, November 1, 1862, (Mis. Doc. No. 13, page 141,) called special attention to said Order No. 45 of Governor Gamble, in reference to the election and to the necessity and propriety of observing its requirements. Of none of these orders does the contestant complain, but before the committee we understood him to express his entire approval of them. With this brief reference to the actual condition of things in Missouri at the time of holding the election in contest, we will proceed to examine the testimony taken by contestant as to the election in five of the fifteen counties composing the district, and will consider the evidence relating to each county separately. ATCHISON COUNTY. ' The only testimony offered in regard to the election in Atchison county is the deposition of Silas Puryear, and that applies only to one election precinct in said county, which was at Eockport. Thia witness, by his own showing, did not CONTESTED ELECTION CASES IN CONGEESS. 509 attend at the polls o>f any precinct, although he states that he was in Rockport on the day of election, and saw a military guard at the door of the court-house where the. election appears to have been held; but he did not go to the court-house. He says there were a good many men in town who did not attempt to get in to vote, himself among the rest, after seeing how things were conducted, but he does not state how the election was conducted, and it appears he did hot go to see. He has a good deal to say about what he heard others remark, and about what some person told him in regard to the matter, both before and on the day of election, all of which is incompetent and inadmissible as evidence, and is consequently of no importance. We are left to infer that the virtuous indignation of the witness, and that of his fellows, was excited at sight of the military guard stationed at the door of the court-house to protect the polls and to enable the loyal citizens peaceably and quietly to exercise the elective franchise, and hence he and they would not attempt to 4 vote, though no one had offered to interfere with or hinder them in going to the ballot-box and depositing their votes. The sight of a loyal soldier was displeasing in their eyes, and his presence they would not tolerate. Nevertheless, this -witness, at this sight, and on the strength of what he says he heard others say, and of rumors he had heard in circulation, is induced to give it as his opinion that in the county of Atchison there were from 250 to 300 voters who were prevented from voting for the contestant by the interference of the militia at said election ; and this is claimed by the contestant to be competent evidence for him in the case, though the witness never attended the polls on said day at any election precinct in the county, and had no knowledge himself of any interference whatever by the militia at said election. The witness had also been employed by contestant as his counsel to take depositions for him in this very matter. Comment on such testimony is unnecessary, nor is it worthy a moment's serious consideration. Yet contestant in his notice claimed that he lost in this county 400 votes. The evidence wholly fails to support the charge, and is also restricted to one precinct in the county. LIVINGSTON COUNTY. In regard to the election in Livingston county, the deposition of six witnesses is taken. Five, of them testify only as to the election at one of. the precincts in .Chillicothe township, in said county, viz : James Hutchinson, Thomas R. Bryon, John Garr, senior, Jacob L. Myers, and John W. Garr; and the other witness, Robert Bruce, testifies only as to the election at the precinct in Greene township, and thus the whole of the evidence relates only to two election precincts in the county. It appears by the testimony of the witnesses as to one of the precincts in the township of Ohillicothe that a squad of Missouri militia, commanded by a Lieutenant Colonel Jacobson, had some little difficulty or disagreement on the morning of the election with the said witness, Hutchinson, and also with the judges of election, in relation to allowing disloyal, men to vote, it being alleged that he, Hutchinson, was disloyal, and for a short time the judges refused to go on with the election at that precinct, and one of Jacobson's men led Hutchinson out of the house. „ Governor Gamble, however, on being telegraphed to on the matter, sent an order to Jacobson, and he at once withdrew with his soldiers from the place, and voting was resumed again and continued during the day, and, so far as appears, was wholly undisturbed. The whole interruption did not exceed one hour, and only one man, the witness Hutchinson, is shown to have been interfered with, and he testifies that he after- wards voted for the contestant that day at that precinct ; so that, in fact, no person 510 CONTESTED ELECTION CASES IN CONGRESS. is shown to have been prevented .from voting for contestant at that precinct. The disloyal nature of the witnesses is well illustrated in the testimony of John W. Garr, (Mis. Doc. No. 13, page 111,) who was interrogated by respondent's counsel on cross-examination as follows : Question. Have you ever been a member of the militia of this county ; and if not, for what reason ? Answer. I have not. I got a certificate of exemption as a sympathizer with the rebellion. On being re-examined by the contestant to show that the loyalty of the wit- ness was, nevertheless, perfectly sound, he was further questioned, and an- swered as follows, viz : Question. Have you not always been for the Constitution as it is and the Union as it was, and a friend of the government ? Answer. I have always been a constitutional Union man, in favor of the old Constitution. It is thur shown, by sworn testimony taken by contestant in this case, that a sympathizer with the rebellion in the State of Missouri was in one case a " constitutional Union man, in favor of the old Constitution ; " and we may there- fore conclude that this witness considered the rebellion as perfectly constitutional. We are not at all surprised, therefore, to find this witness ingeniously swearing, (on page 110,) in reply to an inquiry by contestant as to how many persons were prevented from voting on the day of election in Livingston county, that "judging from former elections, there must have been some four or five hundred short." This witness only attended at one of the two election precincts at Chillicothe, but is willing to swear thus hypothetically and in round numbers for the whole county, without being able to name a single person in the county who was prevented from voting, much less from voting for contestant. The other witness, Bruce, who testifies in regard to this county, was only at Utica precinct, in Greene township. He testifies to a difficulty or dispute between the judges of election and a squad of soldiers, under Major Howe, who came over in the morning to guard the polls, and that the judges thereupon declined to open the polls and go on with the election, although the major insisted they should. His evidence, however, shows that the polls were finally opened, and the election proceeded with, and that the soldiers did not attempt to interfere with the election after the polls were opened, and that they remained after that only a few moments, having been ordered back to Chillicothe. No one is shown to have been interfered with or prevented from voting at this precinct. No evidence is given in regard to the election at any other precinct in said county, although it appears by the testimony of John W. Garr, aforesaid, (page 110,) that there were some seven election precincts in the county. There is, therefore, no testimony of any interference with the election by the military or other persons in said county of Livingston to invalidate in the least the election, or to change the relative vote of the parties. The contestant, in his notice, claimed a loss of votes in his favor, in this county, of some six hundred. His evidence wholly fails to establish any part of this claim. It is, however, worthy of remark, as shown by the official canvass of votes, on page 147, that in this county of Livingston, where contestant thus attempts to show military interference to his prejudice, his majority is 197 votes, and his aggregate vote is more than twice that received by the respondent, his opponent, which fact is conclusive against the charge of military interference there to the prejudice of the contestant. ANDREW COUNTY. Six witnesses, viz : J. E. Watts, Hamilton Smith, Robert Elliott, G. W. Samuel, Jacob Hittibidal, and Joseph Nickel, testify as to the election in Andrew county ; but they all testify in regard to but one election precinct in said county, which precinct was at Savannah. CONTESTED ELECTION CASE8 IN CONGRESS. 511 As to what took place at all the other election preeincts in the county the ■witnesses know nothing. Watts, who was one of the judges of election there, states, in substance, that all the interference with voters there was with a crowd that,was outside of the window where the votes were received, but that he hearckneither before nor at the election any threats against voters who wanted to vote for contestant, nor did he see any persons endeavoring to prevent men from voting for John P. Bruce ; says that at that precinct it is always the custom, on election days, for large crowds to gather around the place of voting ; he also states that the board decided that every qualified voter who would take the oath prescribed by the convention should be allowed to vote. Smith testifies that there was a crowd around the window keeping up a continual noise and confusion, and saying that they would not allow secessionists to vote. He says that a Mr. Bosford, in trying to get to the window to vote, had some one stamp on his foot, and was crowded away from the polls ; as was also a Mr. McCrury. Hosford was. going to vote for contestant, but the witness did not know what ticket McOrnry had. These were all the persons he saw prevented from voting, and he knew of no person but Hosford who was prevented from voting that day for contestant. He states that all the loyal men in Andrew county, between the proper ages, were enrolled as State militia, and the militiamen whom he saw about the election that day were off duty and acting as citizens. Elliott, an old man of seventy years, says that he was unable to get to the polls on account of the crowd and on account of being lame in his, hand and shoulder; that, on trying the second time, a man named Stockweather met him and told him he could not vote, and that after trying a while ineffectually to get to the polls, he finally left without voting, and that he should have voted for contestant. Says he talked some with others there who made a proposition to go to*other precincts in the county and vote, and that Judge Carth told him that there was perfect order at the precinct near him, which was about six miles from Savannah. He also states that there is generally a crowd around the voting place at Savannah at all general elections, and that he knew of no one besides himself that was prevented from voting at said election for contestant ; nor did he know whether the man Stockweather, who told him he could not vote, was a friend to the election of Bruce or Loan. Samuel states that he was at the election and voted without any difficulty in getting to the polls, except that it was very much crowded around the polls. During the day he says he saw persons prevented from going to the polls who attempted to vote, and it was by men who were crowding around the polls and crowding out persons who came up to vote. The crowd was composed of both citizens and men who belonged to the State militia, as he judged from their caps. Thinks many of those who failed to vote would have voted for contestant from what he heard them say during the day. In reply to a question put to him by contestant, as to his opinion how much larger contestant's vote would have been if there had been no intimidation or interference at said election, and there had been a full vote of all who desired to vote, he coolly states that he thinks it would have been four hundred larger, (referring probably to the county,) but he gives no other data on which that opinion is founded. On cross-examination he admits that it is usual at an election at Savannah for the polls to be crowded both by persons who have and by persons who have not voted, and that often voters are detained for a long time before they can make their way through the crowd, particularly when there is a close or excit- ing race between candidates. Thinks he recognized- two persons, named Murphy and Mason, who failed to vote, and he also thinks two others, but is not certain. Does not know of his own knowledge that any persons were prevented from voting for contestant at 512 CONTESTED ELECTION CASES IN CONGRESS. that election ; nor does he of his own personal knowledge know of any person that did not vote at said election. He, himself, voted for contestant. Hittidibal states that he tried twice to vote, but was threatened and prevented and crowded back by a stranger in the crowd from voting, although the judges tried to have him vote. Says there were some men in the crowd whom, from their dress and uniform, he judged belonged to the State militia; hut admits, on cross-examination, that numbers of the enrolled militia were in the habit of wearing every day, when: not on duty, clothing that had been furnished them as militiamen. , He also admits that he saw no one except himself prevented from voting for contestant. Nickel says that at Savannah precinct he saw interference with men who were attempting to vote ; that he saw at different times men attempting to vote pushed back from the polls and prevented from voting, and that the conduct of the crowd around the polls was boisterous and appeared to be dangerous. On being asked for his opinion, (or guess,) he. answers that, in his opinion, in the neighborhood of two hundred at the Savannah precinct were prevented from voting ; but on his cross-examination, he says he does not know how many would have voted for Bruce. He also states that the militia present at the polls that day were not on duty, but were there as other citizens, and that he has frequently, at the election pre- cinct in Savannah on general election days, seen 'large crowds around the polls of men who had and who had not voted, and of those who did not desire to vote, and has seen considerable difficulty in voters getting up to the polls to vote. He further states it as his understanding that the judges of election at Savanr nah precinct allowed every person to vote who was otherwise qualified, and who agreed to take the oath prescribed by the convention ordinance, and that he has heard some who did not come to the election allege that they would not take an oath unknown to the Constitution and laws of the country, and therefore would not come to the election. This action on the part of disloyal men the undersigned think is a very poor reason for invalidating the election, but a strong one for upholding the action of the loyal men who did vote. This testimony, and also the last question put to this witness on his cross- examination and his answer to the same, illustrates strikingly the kind and class of ,men who sympathized with the contestant, and who complain most bitterly about the result of this election. It is as follows : Question. Does not the class of men who you think did not vote at said election and who, you think would, on a fair election, have voted for John P. Bruce, consist mainly of men who had returned from the rebel army or had been arrested by military authority and imprisoned or put under bonds, or enrolled under order number twenty-four, or were reputed to be secessionists or secession sympathizers ? Answer. The men above referred to consist partly of men who uniformly call themselves democrats, and many of whom had been arrested and imprisoned by the military authorities at some time since 1860 ; partly of men who had at one time been in the State or' confed- erate army, and some of whom are now under military bonds ; and partly of those who are said to be enrolled under order number twenty- four. Of the last there were but few at Savan- nah, comparatively. All three of the above classes are, by the republican party, called rebels ana rebel sympathizers. Without stopping to inquire whether this class of persons is or is not, in the case presented, rightly named, and without further comment on the character or credibility of the witnesses, it is apparent on the face of the testimony that no military guard attended upon or was placed over the polls at Savannah on the day of election, but that the commanding officer of the militia at that place, Lieutenant Colonel Nash, expressed a willingness to protect the polls, if neces- sary, and if called upon to do so ; but it seems that the judges of election did not consider there was, at any time, sufficient disturbance or interruption at the CONTESTED ELECTION CASES IN CONGEESS. 513 polls by the crowd to demand any aid from the military, as no call appears to have been made by them on that officer for any assistance. No interference with the election by the military is shown, or by the officers of the election, or any improper conduct on their part ; and taking the most liberal view of the testimony in favor of the contestant, less than a dozen per- sons are shown to have been prevented or hindered by the crowd or press around the polls from voting for him at Savannah ; and the evidence that any one was actually prevented from voting for contestant by the friends of the respondent, or by any one, is somewhat problematical, and no good cause is shown for in- validating the election at this precinct, much less for invalidating the election throughout the entire county. The claim of the contestant, that he lost 400 votes in this county, or any considerable number, is not supported by his evi- dence. DE KALB COUNTY. The depositions taken in regard to the election in this county relate only to one election precinct in the county, viz., the Stewartsville precinct. These de- positions purport to have been taken before two justices of the peace, but by what authority does not appear, and are taken wholly ex parte, no notice of the taking of the depositions before these magistrates appearing to have been given, and no one appearing for the respondent or cross-examining any of the witnesses.. A notice, however, seems to have been served on respondent to take the testi- mony of these witnesses, at the time and place where taken, before one James McFerren, one of the circuit judges of the State of Missouri; but it is alleged that he did not appear, and the depositions were taken as above stated. It is difficult to see how they can be admitted in evidence in this case, objeo tion being taken to their competency and admissibility by the respondent. The act of Congress of February 19, 1851, which makes provision for the taking of testimony in contested election cases, specifies in the third section thereof, any judge of any court of the United States, or any chancellor, judge, or justice of a court of record of any State, or any mayor, recorder, or intende&fc of any town or city, residing within the congressional district in which the con- tested election was held, as the persons to whom application may be made by the parties, and before whom evidence may be taken on giving the requisite notice ; and the tenth section of said act provides for applying to and taking testimony before any two justices of the peace, when no such judge or magis- trate as is specified in section three is residing within such district, but not otherwise. This fact of non-residence of the magistrate, named in section three of the act, does not appear, but the reverse is apparent from the fact that the only notice given for taking testimony in this county names a judge as the person before whom it is to be taken ; and the other depositions in the cause show that other judges resided in the district and acted in taking con- testant's testimony in other counties of the district, and the only excuse offered by contestant on the hearing for taking the testimony before the two justices of the peace was, that the judge named in the notice was afraid or was unwilling to act in the matter. The depositions are manifestly illegal and inadmissible, and no evidence law- fully appears as to the election in this county. But if the testimony thus taken ex parte were even admitted, it would fail to be of any essential benefit to the contestant. It is confined wholly to the one precinct at Stewartsville, and it does not appear how many votes were polled at this precinct, nor how many voters attended there, or how many votes would have been cast if all qualified voters had voted, even admitting that any were prevented, as claimed by con- testant ; nor does it appear how many votes were cast at this precinct for either of the candidates ; and even if it be admitted that there was some improper in- H. Mis. Doc. 57 33 514 CONTESTED ELECTION CASES IN CONGRESS. terference at this precinct, (though the evidence, if admitted, is far from being satisfactory or conclusive on this point,) all that can be claimed from the evidence for the contestant is the number of votes, if any, actually shown to have been prevented from being cast for him, and not an estimated number predicated on an opinion or guess. The evidence is wholly ex parte, and the witnesses are partisan supporters of the contestant, and give what color they choose to their statements as against the respondent, who has no benefit of any cross-examination to sift their evidence and show their particular bias and secession sympathies. Gibson, Crews, Boaz, and Eose, four of the seven witnesses called, did not go to the polls to vote till in the evening, as they all state; and Atterbury, another of the witnesses, was only at the polls when Rose was there ; and, con- sequently, those five witnesses could not know how the election was conducted during the day. Not a dozen persons are actually shown to have been hindered or prevented from voting on the face of this testimony, and this is the only pre- cinct in the county referred to in the testimony of all the seven witnesses. Buchanan county. All the testimony taken in regard to the election in this county is as to the election in St. Joseph, in Washington township. This township, which includes the city of St. Joseph, had six voting pre- cincts, viz : at Allen house, at Nunning's brewery, at the market-house, at court-house, at Potter house, and at Harness house. No testimony is given as to the manner of conducting the election at the Harness house or the Potter house. Only one witness, O. M. Loomis, (Mis. Doc. No. 13, page 9,) testifies anything about the election at Nunning's brewery, and his testimony only shows that he voted for contestant there, but does not show that any of contestant's friends were prevented from voting there by any one. , E. J. Knapp (page 6) and S. Ensworth (page 12) are the only witnesses who testify about the election at the Allen house, and they do not show that any voters there were prevented from voting for contestant by either violence, threats, or intimidation. Cowie, the person claimed to have been assailed, was assaulted after he had voted, and by an unarmed man, for what reason does not appear ; and it was also in the latter part of the day. McKesson, another person referred to, had not offered to vote ; and the kind of tickets he had does not appear, nor is it shown for whom he was electioneering. The witness Ensworth (page 15) expressly negatives any violence, threats, or intimidation that day, at that precinct, against voters for contestant. At the court-house, the evidence shows the election stopped and poll-books destroyed, after about one hundred votes had been polled. This was done not by the military guard, but by a squad of citizens, some of whom wore uniforms of the State militia, but evidently not soldiers on duty that day, or under the charge of any officers. Whilst this violence is not to be justified, it is proper to notice, in a legal point of view as to the effect of this conduct, that the second board of judges of election, acting at the time, were chosen without authority of law, and that, in fact, neither the first nor second board of judges of election at the court-house, nor the clerks, had taken the oath required by the constitu- tional convention, and therefore they were not legally authorized, to preside at the election, or to receive or count the votes, and no voting was legally had, or could be had, at that precinct, up to the time that voting actually was stopped. Besides, the evidence and the laws of Missouri, which were produced before the committee, showed that voters in the township of Washington (which in- cluded the city of St. Joseph) could and did vote for representative in Congress CONTESTED ELECTION CASES IN CONGRESS. 515 at any of the other precincts they saw fit ; so that, if the polls at the court-house had been unlawfully closed, the voters would not have been prevented from casting their votes for contestant at any of the other election precincts, which all remained o'pen during the day, so far as the evidence shows. At the market-house, the witness (Knapp) testifies he saw only one man (Howard) prevented from voting, whom he knew and could name, although he claimed, on his direct examination, that he saw a number of persons prevented from voting there by the enrolled militia. The time he says he saw Howard prevented from voting was in the afternoon, and he did not know what kind of a ticket he had, nor whether he was a friend to contestant or respondent. 0. M. Loomis testifies that he was taken out of the market-house by three of the enrolled militia, (he does not say soldiers on duty there,) but that he after- wards voted at Nunning's brewery. It appears by his own testimony that, before he was carried out, he got into an altercation at the market-house with a Mr. Arnold and called him a liar, which is probably the explanation of his sudden exodus from the polls there. Samuel Ensworth testifies to seeing a man in uniform, at the head of the stairs at the market-house, ask for, and as it was handed to him take, a ticket from an old man named Langston, tear it up and drive Langston down ; but it does not appear whether Langston was intending to vote, nor for whom he would have voted, nor whose name was on the ticket. He further testifies that he did not hear contestant's name mentioned in the crowd at the market-house, and that he did not see any one turned off at the polls. He also testifies that the mili- tary guard placed there, and at the other precincts, was so placed there by General Hall at the request of contestant. Ensworth, it appears, was also a candidate for sheriff at this election, in opposition to the unconditional Union ticket. John Fox, one of the judges of election, testifies that a crowd came in at the market-house, about 11 o'clock in the morning, saying they meant to stop the voting there, and commenced pushing the people about the room, and some one of the crowd took hold of a Dr. Lamme and pushed him about, and finally they got him out ; but he afterwards says he could not say whether Lamme, after he was seized, was put out, or got out of his own accord. In the confusion the judges stopped the voting about half an hour, and then resumed it. Says that he did not know or hear that any of Bruce or Loan's friends interfered to pre- vent any one from voting, or attempted to stop the election. John Scott, who acted as counsel for contestant, ingeniously testifies that, having voted in the forenoon unmolested, he in the afternoon was informed that the military were interfering at the market-house, and he went there, and says the soldiers, without arms except side-arms, were there in considerable numbers, preventing any one from approaching the polls except such as they were satis- fied would vote the ticket called unconditional Union ticket, on which, he adds,, was the name of Benjamin F. Loan for Congress. He further says, if ,a man insisted on voting the Union ticket on which was the name of contestant for Congress, he was forcibly ejected from the room, and, in some instances, kicked down stairs, and otherwise abused. He specifies no names, nor any number of persons, and his testimony is too indefinite and uncertain to have any material influence in the case, and savors too much of the partisan, and also of an attorney testifying for his client. A. M. Saxton merely testifies that, as he and some five others were about to vote at the market-house, some soldiers arrested two of the six, and he left without voting. He does not say why he so left, nor for whom he or the others intended to vote, nor why the two were arrested. B. C. Cunningham, a witness, by his own evidence and admission a rebel sympathizer, testifies that he went to the market-house to vote for contestant, 516 CONTESTED ELECTION CASES IN CONGRESS. but was prevented by persons dressed in the garb of soldiers ; that lie went back the second time to vote, and was arrested and taken to the guard-house, but was released after a few moments, and after that he did not attempt any more to vote. J. J. Abell testifies that he went to the market-house and voted, and that he was then arrested and taken to the guard-house, but was released by General Hall soon after. He admits that he was enrolled on the disloyal list, under Order No. 24, and that he was a brother-in-law of General M. Jeff. Thompson, of the rebel army. S. S. McGibbon attended at the market-house about an hour and voted, and says that everything went on peaceably while he was there, except the arrest of a number of men who were said to be Order No. 24 men, one of whom he says was not. These men, it is shown, were all soon after discharged that same day, and it does not, for certainty, appear for what they were arrested. Dr. A. Lamme testifies that he was at the market-house, and remained about an hour, unable to vote on account of the crowd, about a dozen others being sworn with him, and that a squad of soldiers came in as he was preparing to vote, and commenced ordering and putting out voters, and stopped, the voting for a time, and that three men in uniform took hold of him and put him out of the house, and that he intended to vote for contestant. To show this man's loyalty, it is suflicient to state that, on his cross-examina- tion, he admits that, in the summer or fall of 1861, at the time the United States flag was raised over the post office building in the city of St. Joseph by federal soldiers, he did propose and give three groans for the man who put up said flag on said building. The contestant, on the re-examination of this witness, to palliate somewhat this conduct, induces the witness to testify that the common council of the city had, prior to this, so far shown the impartiality of their loyalty as to pass an ordinance " against the raising of any flags, United States or secesh," which simply shows that sard common council, in that respect, treated the rebel flag as entitled to equal consideration with the United States flag, and evidences that their loyalty, like that of the witness, was not above suspicion. The only other witness sworn is D. J. Heaton, and he does not state at what precinct he attended. He only speaks of what others told him, and says that he became disgusted at the way the election was conducted, and went home and did not vote, though he was told by the persons at the election that he could vote. By his own statement, no one prevented him, but he voluntarily declined to vote, and of this neither he nor contestant can rightfully complain. The evidence as to the election at the market-house shows that less than a half-dozen men (Howard, Langston, Lamme, Saxton, and Cunningham) were actually prevented from voting, if it indeed shows that any one man was actually so prevented, and several of those who say they did not vote seem to have acted voluntarily in the matter, claiming that they thought it useless to vote, or inconvenient, or hazardous to attempt to vote ; and this opinion, it is apparent from their testimony, was suggested as much or more by a conscious- ness of disloyalty and of guilt. on their part than by any real ground of danger from the military, in quietly exercising the elective franchise. That the mili- tary or the crowd did not prevent the electors from voting at this precinct for contestant is conclusively shown by the fact, that at the market-house precinct the contestant received about one-third of the whole number of votes polled. (See page 51, Mis. Doc. 13.) Disloyal men would readily attribute their defeat at the ballot-box to the presence of a loyal military guard stationed there to protect the polls and to permit the loyal citizens to hold an election, and would eagerly seize upon this pretext to invalidate the election by alleging military interference and intimida- tion. James A. Matney, one of the contestant's w itnesses as to the election at CONTESTED ELECTION CASES IN CONGRESS. 517 St. Joseph, expressly states, as his impression, that of that class of men who were generally denominated returned rebels, and men who had been arrested, taken the oath, and given bond, and those who had returned from Price's army and voluntarily surrendered themselves, and those enrolled under Order No. 24 as rebel sympathizers, a majority of this class that did vote, voted for contestant. (Mis. Doc. No. 13, page 31.) We have, also, heretofore noticed, in referring to the testimony, several of the witnesses identifying themselves as belonging to this class of disloyal citizens. Such men would very naturally complain of the presence of a military guard at the polls, and would gladly invalidate and make void an election where the successful candidate was not the one of their choice, and the binding obligation of the oath, under which they testify, would be as little regarded as are their oaths of allegiance. The military guards that were stationed around the various election precincts in Washington township were so stationed at the request of contestant, and neither he nor his friends have any right to complain of their presence there, nor to question its legality, much less to urge it as a reason for not voting. The sight of a Union soldier guarding the polls would afford no just ground of alarm to a loyal citizen, much less excite his indignation. The State militia was wholly composed of, and formed a part of, the loyal citizens of the State, and had a common interest with him in preserving the purity and freedom of the ballot-box. The undersigned see in the evidence no proof of interference or disturbance at the polls at the market-house sufficient to make void the election ; but if the contestant were allowed the full benefit of all the votes which his witnesses, in estimating or guessing, claim for him in this entire township of Washington, it will be seen that it will be of no avail to him in affecting the result of the election. Only two of his witnesses estimate his losses in this township. Knapp, on pages 7 and 9, puts the number of persons who, in his opinion, were prevented from voting, or did not vote, in Washington township, at about 300. Matney, on page 24, estimates the whole number who were prevented from voting in Washington township at from 150 to 200 voters. The witnesses do not say that all these would have voted for contestant ; but counting them all in his favor, and at the highest number of 300, including those votes destroyed at the court-house, and it gives all the ground covered by the witnesses in Buchanan county, as this is the only township in the county at which any of them attended the polls on the day of election, or of which they had any knowledge in regard .to the manner in which the election was conducted. Speculations or guesses of witnesses as to election precincts which they did not attend, whether in this or in other counties, it will not be seriously urged should be received or considered in determining that contest. The majority for Loan, the sitting member, over the contestant, as shown by official returns, page 147, is 2,028. Deduct from this the aggregate of 300 votes claimed for contestant by his witnesses in Washington township, as above stated, and it still leaves Loan's majority 1,728, which it is impossible for con- testant to overcome by any fair deductions from his evidence, which only relates to five other election precincts in the entire congressional district. It would require over three hundred additional votes for contestant at each of these other five precincts to do away with the majority still remaining to the sitting member — a number in each case to which no political arithmetic can show him to be entitled. In addition to this fact, it may be added that the number of 2,665 votes cast at this same election for Mr. H. B. Branch, another candidate of the radicals in this district, shows pretty conclusively that the contestant is far from being entitled to claim that he is the choice either of a majority or a plurality of the voters in said district. 518 CONTESTED ELECTION CASES IN CONGEESS. In glancing at the testimony it has not been thought necessary or proper to notice, to any considerable extent, hearsay statements, or vague rumors, or irrelevant and immaterial evidence, as against the rights of the sitting member. The inferences, impressions, conclusions, guesses, and opinions of witnesses are often improperly given in the testimony, and many times when the witness has no actual knowledge of the facts concerning which he assumes thus to speak. Such evidence it is unnecessary to comment upon. In weighing the testimony it should be borne in mind that the only witnesses sworn are those selected by the contestant — many of them his partisan supporters, some of them his coun- sel, and quite a number of them confessedly disloyal or in sympathy with rebels. In saying this it is not intended in the least to question the loyalty of the contestant. It should also be borne in mind that at the time this election was held all loyal citizens of Missouri liable to do military duty were in the enrolled militia, and a large portion of them were uniformed, and consequently a large proportion of the voters necessarily belonged to and composed a part of said militia, and more or less of them would be found with other citizens at the polls, clad in the military uniform, as is shown by the testimony. For the same reason, candidates-for the various elective offices would be to a greater or less degree taken from this class of voters. No complaint is made by the contestant, either in his notice or in his evidence, of any military or other interference by federal officers or soldiers, nor of any action or interference on the part of the general government. Neither is any complaint made of the action of the officers of election ; and, so far as appears, they acted in every instance with fairness and impartiality. The whole burden of the contestant's allegations and testimony, so far as relied upon by him, is directed against the action of some of the enrolled militia and their officers and some other persons at and around the polls at the precincts testified about. It was claimed in substance by the contestant before the committee that rumors were in circulation prior to and on the day of the election that if men enrolled under Order No. 24 should vote, they would be arrested, or would be made to serve in the enrolled militia; and he insisted that many men who would otherwise have attended the polls and voted for him were thereby intimi- dated and deterred from so doing. The evidence, even if admissible, (which is questioned,) does not sustain this position, nor is it specified in contestant's notice as a ground of contest; but it may be added that, so far as regards the rumor that the act of voting would be considered by the authorities as an act or acknowledgment of loyalty, which would entitle the voter to be enrolled and to serve in the State militia, as a loyal citizen should, the undersigned can see no just ground of complaint on that account, if such rumor did exist; and the man who would, in consequence of such a rumor, refrain from voting, should be considered as justly disfranchised and as undeserving of sympathy. It may also be suggested that if evidence of the existence of unauthorized rumors is to be received and acted upon in contested election cases, rumors of every kind will not be found wanting in any case where it is desired to defeat an election, and they may easily be originated and circulated for that express purpose. It is also proper to notice that the aggregate vote for Congress in this district was larger than that of any congressional district in the State at this election; and it was alleged by the respondent on the hearing, and not disputed by con- testant, that notwithstanding there were chosen at this same election county officers and members of the State legislature, the seat of none of those officers has ever been contested, and they have all exercised the functions of their respective offices without any question as to the validity of the election. It will also be noticed, as shown by the contestant's own evidence, (page 31,) that at the time the congressional canvass was going on in this district,- and when CONTESTED ELECTION CASES IN CONGRESS. 519 the election was held, the respondent was not within the district, but was absent on official duty in another part of the State, and had nothing whatever to do with any action taken at the polls. It has also been noticed that there are fifteen counties in this district. Allow, as a sufficiently low average, ten election precincts to a county, and it gives 150 precincts in the district. The contestant claims to have offered testimony as to the manner of conducting the election at only eight of those precincts, but he asks the House to presume, without proof, that his allegations are true in regard to the elections at the remaining 142 precincts. The presumption, however, in the absence of that proof, is, that the election in all of those precincts was held according to law, and that the return of votes cast was legally and correctly made. It is not the fault of the loyal citizens of Missouri that their State has been made the theatre of a bloody and devastating civil war, nor that guerillas have at times lurked about in their State, plunder- ing and murdering her citizens ; nor should those loyal men, after having suc- cessfully struggled against, overcome, and driven out traitors and rebels, be disfranchised on account of any disturbed state of society which might naturally result from these things, and from the presence in their midst of a few returned rebels and rebel sympathizers. That lqyal voters should be somewhat excited and indignant at seeing men at the polls who had recently been imbruing their hands in the blood of their neighbors, and in destroying and plundering their property, or had given aid and comfort to those who had been thus engaged, is not surprising, nor that they should have then and there expressed some of their indignation towards and detestation of such men, in language not pleasing to a rebel ear. Patriotism could do no less than this ; and the undersigned not only justify the State authorities and the loyal citizens of Missouri in protecting the polls at .some of the precincts by a guard of the enrolled militia, wherever they deemed 1 1 necessary under the circumstances, but also consider that, on the contestant's °wn showing, they acted on the whole, and with few exceptions, with the most Patient forbearance towards this particular class of men, who on that occasion *hus assumed to exercise the elective franchise. The undersigned, finding the allegations of contestant unsupported by the facts, have not deemed it necessary to refer to precedents ; but they would instance as cases where the facts were much stronger in favor of the positions taken by the contestant than they are in this case, and yet the election was held valid, the case of Trigg vs. Preston, CI. & H., page 78, and the case of Andrew J. Clements, decided during the second session of the 37th Congress. In the case last cited, the Committee of Elections, in their report upholding the election, use the following language : " The committee are also satisfied that t on the day of election there was an armed rebel force present in this district, prevent- ing or restraining the voters from the exercise of the elective franchise, and that though a violent and bitter public sentiment existed, calculated to overawe and intimidate, yet the rebel forces had not, up to that time, so taken possession of the district as to prevent such voters as chose to do so to deposit their votes for a representative in this Congress." Notwithstanding this state of things, the said committee, in their said report, which was approved by the House, came to the conclusion, upon the whole evidence, " that, on the day of election, no armed force prevented any considerable number of voters, in any part of said district, from going to the polls," and thereupon they sustained the validity of the election. The undersigned trust that the presence, in a few of the precincts in this seventh district of Missouri, of a few loyal State troops, acting under the orders of the State authorities in guarding the polls, will not be considered more dan- gerous to the free exercise of the elective franchise than was in Tennessee the presence of rebels in arms. 520 CONTESTED ELECTION CASES IN CONGRESS. Being fully convinced that no good reason is shown in the evidence for inval- idating the election, and it satisfactorily appearing therein that the contestant is not entitled to a seat in this house, but that the sitting member is entitled to retain the seat which he now holds therein, and the contestant himself having, on the hearing before the committee, only insisted that the election in contest should be declared void, and the matter be referred back again to the people for a new election, a claim which is not even set up or alleged in contestant's notice, the undersigned therefore submit the following resolution : Resolved, That Benjamin F. Loan is entitled to retain his seat in this house, as a repre- sentative in Congress from the seventh congressional district of Missouri. CHAS. UPSON. N. B. SMITHEES. G-. CLAY SMITH. G. W. SCOFIELD. The debate in the House upon this case proceeded upon the facts and prin- ciples asserted in the majority and minority reports. On the 10th -of May, 1864, the House rejected the resolution reported by the majority of the com- mittee and adopted the minority resolution. The vote stood — for the majority resolution 59, against it 71. Mr. Loan therefore retained his seat. Note.— The debate will be found in vol. 52, pages 2156, 2157, 2185, 2194, 2196, 3207. Speeches for the report : Mr. Dawes, page 2166 ; Mr. Brown, page 2191 ; Mr. Bruce, page 2207. 'Against the report: Mr. Upson, page 2159; Mr. Smithers, page 2163; Mr. Eliot, page 2185; Mr. H. W. Davis, page 2188; Mr. Myers, page 2196; Mr. Loan, page 2211. THIRTY-EIGHTH CONGEESS, FIRST SESSION. Birch vs. King, of Missouri. Price vs. McOlurg, 'of Missouri. These cases were similar to the case of Bruce vs. Loan, of Missouri. After the House had refused to agree to the report of the committee in that case, the papers in the above-named cases were reported back to the House and laid upon the table. There were no written reports, nor was there a contest in the House. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Chandler, of Virginia. A large majority of the population of the district being within the military control of the rebel authorities, the election was treated as not valid. IN THE HOUSE OF REPRESENTATIVES, April 25, 1864. » Mr. Dawes, from the Committee of Elections, made the following report : That the second district of Virginia is composed of eleven counties, viz : Brunswick, Dinwiddie, Greenville, Isle of Wight, Nansemond, Norfolk, Princess Anne, Prince George, Southampton, Surry, and Sussex. Mr. Chandler claims to have been elected on the fourth Thursday in May, 1863, the day fixed by law in the State of Virginia for the election of repre- sentatives to the present Congress. Polls were opened on that day in nine places in Norfolk county, Portsmouth, and Norfolk, and the whole number of I CONTESTED ELECTION CASES IN CONGRESS. 521 votes cast was 779, of which Mr. Chandler received 778. The committee have not been able to ascertain how many of these votes were cast at each of the several voting places, but have been informed that almost the entire vote was cast at the city of Norfolk. The conclusion to which the committee have arrived does not render it necessary to make certain this fact. No votes were cast or polls opened in any other county -in the district, for the reason that all the other counties composing this district, except that of Norfolk, were either under the entire control and occupation of the rebels, or so nearly so that no man .could go to the polls in safety, if any had been opened for the reception of votes. The following table, taken from the census of 1860, will show the pop- ulation of the whole district at that time : Counties. Total pop- ulation. Whites. White males. Colored population. Brunswick . . . Diuwiddie Greenville Isle of Wight Nansemond .. Norfolk* Princess Anne Prince George Southampton . Surry Total 14, 809 30, 198 6,374 9,977 13,693 36, 227 7,714 8,411 12, 915 6, 133 10, 175 4,992 13, 678 1,974 5,037 5,732 24, 420 4,333 2,899 5,713 2,334 3,118 2, 459 6,837 972 2,510 2,838 12, 091 2,226 1,463 2,790 1,151 1,542 9,817 16, 520 4,400 4,940 17, 961 11,807 3,381 5,512 7,202 3,799 7,057 156,626 74,230 36, 879 82, 396 * In census returnB Norfolk county includes Norfolk city and Portsmouth. From this table can be seen at a glance the proportion which the population of Norfolk county when the election was held bears to that of the whole dis- trict. The committee are of opinion that this case is governed by the principles adopted by them in their report in the case of B. M. Kitchen, from the 7th- dis- trict in this State, No. 14, already sanctioned by a vote of the House, and also in their report No. 9, in the case of Joseph Segar, from the first district in the State, and that in no proper sense can the vote in' one county be treated as the choice of the other ten counties, prevented by the strong arm of the rebellion from expressing any wish at the ballot-box. The committee do not deem it necessary to repeat here the reasons there given for a conclusion founded on a state of facts so similar that they could dis- cover no new principle involved. They therefore refer to the above-named re- ports for a more full exposition of the views of the committee upon claims of this character, and recommend the adoption of the following resolution : Resolved, That Lucius H. Chandler is not entitled to a seat in this house as a representa- tive in the 38th Congress from the second congressional district of Virginia. The report was agreed to without division, May 17, 1864. Note. — The brief debate in this case will be found on page 2311, vol. 52. THIRTY-EIGHTB«CONGRESS, FIRST SESSION. Knox vs. Blair, of Missouri. The allegations of the contestant in this case were, for the most part, so vague as to call forth the condemnation of the committee. They consist mainly of illegal voting by soldiers, who were minors or non-residents. There were also- charges of military interference in behalf of the sitting member. 522 CONTESTED ELECTION CASES IN CONGRESS. The committee rejected an entire poll on the ground that it was so tainted with fraud that the truth could not be deduced from the returns. Sworn copies of muster-rolls of regiments were admitted as evidence of the age of a voter, and when made at the time of the election were considered admissible evidence of the num- ber and the names of men composing the regiment. IN THE HOUSE OF REPRESENTATIVES, May 5, 18C4. * Mr. Dawes, from the Committee of Elections, made the following report : The first district of Missouri consists of the 4th, 5th, 6th, 7th, 8th, 9th, and 10th wards of the city of St. Louis and St. Lonis township, St. Ferdinand and Central townships. The election was held on the 4th of November, 1862, the day provided by ordinance of convention for the regular election of representa- tives in Congress and State officers. The official canvass showed the following result: For Mr. Blair, 4.741 ; for Mr. Knox, 4,588; for Mr. Bogy, 2,536. Of this vote the soldier vote was as follows : For Mr. Blair, 698 ; for Mr. Knox, 964 ; for Mr. Bogy, 54. This result showing a plurality of 153 votes for Mr. Blair, the certificate of election was awarded to him, and he accordingly holds the seat. Within the time prescribed by law Mr. Knox served upon Mr. Blair a notice of contest, contain- ing eighteen specifications, in substance as follows : That at least 400 illegal votes had been cast for him — Blair — at the Abbey precinct ; that 78 illegal votes had been cast for him by companies B and K, 32d regiment Missouri vol- unteers ; that " several hundred illegal votes" had been cast for him by work- men on government gunboats at the city of Carondelet, not residents of the dis- trict ; that more than 100 illegal votes were cast for him by persons temporarily employed at Jefferson Barracks, in the service of the United States, non-residents of the district ; that several hundred soldiers of an Iowa regiment, name not known, non-residents, voted for him; that many soldiers, non-residents, voted for him in the eastern precinct of the 5th ward of St. Louis, and that said soldiers, with others, voted again ,for him at the eastern precinct of the 6th ward, in said city ; that at the various precincts in the district many hundred soldiers, non-residents and minors, voted for him ; that several hundred soldiers voted for him in a manner not in conformity to the requirements of the ordi- nance of convention ; that " hundreds of minors" voted for him ; that there were counted for said Blair votes not cast in conformity to law, of soldiers, some of them minors, all of them non-residents, from the following named com- panies of Missouri volunteers : Company B, 32d regiment ; company K, 32d regiment of infantry ; companies C and E, 10th regiment of cavalry ; unassigned company, 10th regiment of cavalry ; companies A, B, C, and E, 7th regiment of infantry; companies A and G, 30th regiment; company G, 3d regiment; companies B, C, and D, 5th regiment ; company B, 31st regiment ; company A, 22d Ohio, late 13th regiment Missouri volunteers ; companies I and F, 8th regiment ; companies D, F, A, B, K, and G, 6th regiment ; company C, 27th regiment; and company G, 1st regiment of artillery ; that the votes of said companies were neither cast nor returned in aanformity to the laws of Missouri and the ordinances of the State convention ; that " many hundreds of voters" voted in precincts other than those in which they resided, without taking the oath required by the statutes of Missouri of such voters ; that poll-books of 1st Missouri artillery, 16th Missouri volunteers, and poll-books of Missouri regi- ments voting at Corinth, casting "several hundred more votes" for contestant than for sitting member, were never returned to the canvassers or counted ; that CONTESTED ELECTION CASES IN CONGRESS. 523 poll-books upon which the contestant had more votes than the sitting member were illegally rejected, marked " Book 77," " 91," " 44," " 88," " 90," " 76," and " 80 ;" that the 2d and 15th regiments Missouri volunteers, which would have otherwise cast a majority of 500 votes for contestant over sitting member, were, for the purpose of preventing them from so voting, put in motion on the day of the election at sunrise, and marched until sunset ; that more than 200 legal voters of the 2d Missouri artillery, stationed in the forts around St. Louis, who would otherwise have voted for contestant, were not permitted to vote because they would not vote for sitting member ; and that in order to prevent others from voting for contestant they were made to believe that they could vote only in the second district ; that many minors and other persons were induced, by fear and threats of government contractors, combining with other persons in the pay and employment of the government, and by means of the establishment of a newspaper by persons holding office under the government, to vote for contestant ; and that said office-holders and government contractors, by the expenditure of large sums of money, induced a large number of voters to vote for sitting member. The sitting member, also, within the time prescribed by law, served upon the contestant his answer denying each and all the allegations of the contestant, and in turn setting out at large twelve distinct and independent allegations upon which he resists the claim of the contestant, in substance : that 240 votes, counted for contestant, cast by 12th regiment Missouri volunteers, were not cast in con- formity with law — were votes of minors, non-residents of the district, and aliens ; that for like reasons 233 illegal votes were counted for contestant by members of the ]7th regiment Missouri volunteers, 130 illegal votes in the fourth regiment of cavalry, called '' Frdmont hussars," 34 illegal votes by the 5th regiment of cavalry Missouri volunteers, 116 illegal votes by 3d regiment Missouri volunteers, infantry, 16 illegal votes given by an independent battery . of 1st Missouri horse artillery ; that 605 illegal votes were counted for contest- ant in the eastern precinct of the 4th ward of St. Louis, "more than 500 illegal votes" counted for contestant in the various precincts in the first congressional district, and that for the same reasons " votes from various other companies of various other regiments" were counted for contestant " which ought not to have been ;" that 250 votes cast for sitting member of persons whose names are annexed, marked H, were illegally rejected by canvassers for informalities not fatal ; that " the political friends and partisans of the said Samuel Knox, with his privity, consent, and approbation, were and are guilty, of each and every of the several acts of corruption, fraud, and oppression charged in his said notice against the friends and partisans" of the sitting member, " creating disturbances in the vicinity of the polls on the day of election, and' by their boisterous and threatening language, and by the use of violence, detained and kept a great number of peaceable and quiet citizens from the polls ;" that there were counted and allowed, to contestant, in addition to the votes already enumerated, 2,980 votes in the various precincts of the first district, all of which were illegal for the reasons first alleged as to the vote of the 12th regiment Missouri volunteers. The House will not fail to notice the extraordinary character of many of the allegations of both contestant and sitting member, as well in the matter as in the manner of their presentation. For vagueness, uncertainty, and generality, they are, in the opinion of the committee, without example, and seem to have been drawn in studious disregard both of the act of Congress and of all prece- dent. But as neither contestant nor sitting member was in a situation to take exception to the substance or mode of the other's pleading, the committee were not called upon for a decision upon this point, but present the case as they find it upon the record. They do not feel at liberty, however, to permit these plead- ings to pass into a precedent without recording the opinion that many of the allegations on both sides are bad both in substance and form. 524 CONTESTED ELECTION CASES IN CONGRESS. The constitution of Missouri requires as a qualification of voters that they shall be free white male citizens of the United States, twenty-one years of age, a resident of the State one year, and the last three months before election in the district where they vote. To this the convention which provided a pro- visional government for the State at the beginning of the rebellion added the following : AN OEDINANCE defining the qualifications of voters and civil officers in this State. Be it ordered by the people of the State of Missouri, in convention assembled, as follows : Section 1. No person shall vote at any election to be hereafter held in this State, under or in pursuance of the constitution and laws thereof, whether State, county, township or municipal, who shall not, in addition to possessing the qualifications already prescribed for electors, have previously taken an oath in form as follows, namely : " I, , do solemnly swear (or affirm, as the case may he) that I will support, protect, and defend the Constitution of the United States, and the constitution 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 opposers thereof, or of the provisional government of the State of Missouri, any ordinance, law, or resolution of any State conven- tion or legislature, or any order or organization, secret or otherwise, to the contrary, notwith- standing ; and that I do this with a full and honest determination, pledge, and purpose faith- fully to keep and perform the same, without any mental reservation or evasion whatever. And I do further solemnly swear (or affirm) that I have not, since the seventeenth day of December, A. D. 1861, wilfully taken up arms or levied war against the United States, or against the provisional government of the State of Missouri. So help me God." The convention before spoken of passed an ordinance June 12, 1862, enti- tled " An ordinance to enable citizens of this State in the military service of the United' States or the State of Missouri to vote," which carried out the objects indicated by its title, and provided, in detail, the method of conducting such elections. A voter can cast his vote at any other precinct in the district than that of his residence by first taking an oath that he has not, and will not vote at any other precinct at that election. The voting in this district is by ballot, and the name of each voter is recorded and numbered, and the corre- sponding number is placed upon his ballot, which is preserved for a specified period, thus enabling parties interested, at any time, to make it certain for whom each voter cast his ballot. The notice of contestant, and answer, as well as the testimony taken by each party, with the exception of a single deposition, are all contained in Miscellaneous Document No. 15. After the hearing before the committee was commenced, viz., on the 11th of March, 1864, the deposition of Captain N. S. Constable (Miscellaneous Document No. — ) was referred to the committee by the House, with instructions to consider the same, " with other evidence before them taken after the time provided by law : Provided, That this resolution shall refer only to affidavits and depositions, and that all such illegally taken shall not be considered by the committee." The committee were of opinion that these instructions excluded from their consideration the deposi- tion of Captain Constable, taken more than a year after the time for taking testimony in this case had, by law, expired, and also the affidavits of Thomas Slade, (p. J 43,) John B. O'Hara, (p. 195,) and of John M. Boyd and C. C. Fletcher, (p. 199,) of Miscellaneous Document No. 15, offered by contestant; all of which appear to have been taken without notice to sitting member. The first allegation of the contestant is that 400 illegal votes were cast for the sitting member at the Abbey precinct. The names of these alleged illegal voters were attached to the notice of contest, so that the sitting member knew from the start the name of each man thus challenged. The whole vote returned from this precinct was 480, of which there were counted for Mr. Blair 424 votes, for Mr. Knox 41 votes, and for Mr. Bogy 11 votes. It is contended by the con- testant that the voting at this precinct was of such a grossly fraudulent character CONTESTED ELECTION CASES IN CONGRESS. x 525 as to involve all concerned in it, either in participation or passive permission,' and to render it impossible to sift and purge the poll. And he therefore claims that the whole poll should be rejected. The evidence shows that at this pre- cinct, at the congressional election in 1858, only 93 votes were cast ; at the same election, in 1860, only 138 votes in all; and at the judicial election in Novem- ber, 1863, only 140 votes in all were cast ; while in November, 1862, the year before, 480 votes were cast. And this great difference is shown in a precinct where there has been (p. 69) very little, if any, increase or change in the pop- ulation. It also appears that of these 480 who voted in 1862, nineteen only voted in 1858 and 1860, thirteen of them in 1860 alone, and thirty- six of them only in 1863. It was also in evidence (p. 16) that from 1,400 to 1,500 paroled prisoners, nearly all from the States of Illinois, Wisconsin, Missouri, (outside of St. Louis,) Iowa, Kansas, Nebraska, and Arkansas, were at Benton barracks, very near the voting place of the Abbey precinct, on the day of election, and had been there for some time under the charge of Captain N. S. Constable, to whom Mr. Blair had, a few days before election, made a presentation speech on the presenting to him of a watch by some of his friends ; that on the day of the election government wagons, which were under the charge of this Captain Constable, were, to the number of ten or twelve, employed during the day in taking those paroled prisoners to the polls and bringing them back, the soldiers hur- rahing for Frank Blair as they went ; that the names of fifty-six of these paroled prisoners, (p. 19,) all from the seventh congressional district of Missouri, were found by their own adjutant upon the poll-books at the Abbey precinct, voting in a body for Mr. Blair. Companies C and E, 10th regiment of cavalry, were stationed on election day at Camp United States Magazine and United States Powder Magazine, (p. 385,) and there voted, (pp. 108, 404.) These camps are from eight to ten miles south of St. Louis, below Carondelet ; one of them very near Jefferson barracks. Other soldiers were also encamped in that vicin- ity. Soldiers, some from Ohio, Illinois, and other States, as well as Missouri soldiers, to the number of between one and two. hundred, (pp. 17, 18,) were met in wagons and on foot between Carondelet and these camps on election day, going towards St. Louis, stating that they were from the barracks, and saying they were going to St. Louis, to vote, and hurrahing for Blair as they went. And in the evening government wagons, loaded with soldiers, shouting for Blair, (p. 56,) were seen below Carondelet, driving toward the barracks and the camps already mentioned. By a comparison of the poll-book of the Abbey precinct (p. 375) with that of companies C and E, 10th cavalry, (pp. 108, 404,) it will be seen that thirty-two of the members of those companies, who voted in their camps for Mr. Blair, travelled some twelve or fourteen miles to the Abbey precinct in St. Louis, and there again voted for him. Whether the other soldiers from other States, who were also seen going up to St. Louis, avowing a similar purpose, carried that purpose into execution, there is no positive evidence, for the want of a list of their names. If their comrades, who left a record of their names behind at the polls in their camp, found no difficulty in voting a second time at the Abbey, it is not easy to resisL the conclusion that these soldiers also did not fail in the avowed object of their visit to the city. Persons well acquainted with the voters belonging in the Abbey precinct, themselves voters, (pp. 67, 71,) visited the polls at different times in the day, and though hundreds, mostly sol- diers, crowded the place of voting, could see scarcely a person known to them. The judges of the election at this precinct were (p. 69) Mr. Price, B. Hamerler, and Mr. Carpenter. Yet Carpenter, without authority of law, substituted in his place (p. 70) one Jerry Millspaugh during a portion of the day, who acted .as judge while he electioneered for the sitting member, and vice versa. The other two judges also forgot their duty as judges in their zeal for the sitting member, (p. 70.) The polls at this precinct seemed to have been under the con- trol of one Charles Elleard, an active partisan of the sitting member* the owner 526 CONTESTED ELECTION CASES IN CONGRESS. of a race-course near by, who destroyed the tickets for the other candidates, (p. 70,) put one man out of the room because he would not vote for the sitting member, declaring "we have it our own way here to-day," and, as he tore up the tickets, "damn it, we don't want any such tickets around here." (p. 70.) Upon this proof of the manner of voting at the Abbey, the conduct of the judges in admitting illegal voters to cast their ballots in a body, without any evidence that they even administered to a single one the oath required by law of non-residents of the district — themselves acting as partisans of the sitting member, and, against law, exchanging places with other partisans not authorized to act as judges ; surrendering the control of the voting place to a violent par- tisan of the sitting member, and at last achieving the astonishing result of poll- ing nearly four times as many votes as were ever before or since polled at that precinct, from voters all strangers, to long residents of the district — the con- testant claims that the poll itself should be rejected. In reply to this evidence the committee do not find in the whole record that the sitting member has taken any testimony to support the legality or fairness of the voting at this precinct, except the testimony of Captain N. S. Constable, the same person to whom the watch, before referred to, was presented, taken in this city, after the hearing was commenced, and excluded from the consideration of the committee by a vote of the House. The sitting member has contented himself with relying upon such testimony, as to the validity of this vote, as could be extracted from the witnesses offered by the contestant by cross-examination, which consisted in statements that there were teamsters and others in the employ of Captain Constable and others, not soldiers, and also employe's of the United States at a government corral a Bhort distance from this voting precinct, who •sometimes wear soldiers' clothes, and who were believed to be citizens of St. Louis, and who might have cast this great vote. That they did no one has testified. But the name of each one of these alleged illegal voters was furnished the sitting member in the notice of coptest, and he had sixty days after his answer to take any testimony he pleased as to their right to vote. A record of all the team- sters and employe's of the government at Benton barracks and the government corral, not soldiers, existed at those places. It could have been compared with the poll-list, and if found there the men themselves were at hand to prove their residence in Bome one of the wards in this district, or others could have testified to the fact, if it existed. If these votes came from the sources suggested, the proof of it was so easy that its absence adds weight to the testimony given against their legality. There is also positive testimony that eighty-eight of those voters whose names are given fraudulently cast their votes in a body, without question or precaution on the part of the judges, and the proof is little less conclusive as to many more. Indeed, it is difficult to see in the manner in which this election was conducted any limit beyond an exhaustion of the supply of men to the number of votes returned from this precinct. When the result in any precinct has been shown to be " so tainted with fraud that the truth cannot be deducible therefrom," then it should never be permitted to form a part of the canvass. The precedents, as well as the evident require- ments of truth, not only sanction, but call for the rejection of the entire poll when stamped with the characteristics here shown. In the late case of Blair vs Barrett, decided in the 36th Congress, (1st session, Report No. 563,) in a contest in substantially the same district, the entire vote of four precincts was thrown out for reasons so similar to those existing in this case that the com- mittee take the liberty to quote at length from the report in that case, which was adopted by the House, and forms a precedent for our guidance. In speaking of the great increase of the vote of certain precincts over that of previous elections, the committee say : If such increase had been attributable to increase of population, it must have been, unde the law requiring a year's residence in the State before voting, from an addition to the popu- lation which had arrived in the city a year previous to the day of the election ; if from out of CONTESTED ELECTION CASES IN CONGRESS. 527 the State, or from some other part of the State of Missouri, three months at least before that day. The presence of a new voting population of five thousand, with all the families and other indications of their existence which move with them wherever they go, and stop with them whereyer they abide, could hardly escape notice for a year, or even three months. It could hardly be expected, either, that any such actual and bona fide accession to the voting population would have cast its entire strength for the candidate of one party alone. To some extent such increase would naturally be expected to distribute itself somewhat among all parties. The committee have not been pointed to any instance elsewhere of so great an increase to the voting population of such a territory in so short a time without any known cause or source, or special indication of its presence, and all of one political faith, and casting its first vote in a body for one of three different political candidates, all at the same time and place equally active in canvassing for votes. This district is divided into thirty-five election precincts or sub-districts, and any honest increase of votes arising from natural increase of population would generally find itself distributed among them all ; yet it is nearly all found in seven or eight out of the thirty-five. These remarkable features of this case, disclosed in the outset, led the committee early to direct a most scrutinizing inquiry into the manner of voting, the qualification of voters, the conduct of the judges of elections, and of others in these precincts. The evidence shows that great irregularities existed at nearly all of them ; and just in proportion as these irregu- larities were frequent and glaring did the increase of vote for the sitting member over the vote cast for the candidate of his party two years before show itself. * * # * # # * Men unknown in the precinct when they offered to vote were permitted to cast their bal- lots without question, and without first taking oath, as the law requires, that they " had not voted and would not vote in any other precinct in the district." Violent and tumultuous crowds surrounded the polls, and at times had such possession of them, and power over the judges, as to render it almost, if not quite, impossible for any one to approach the polls or cast his vote, unless he carried a ballot for the sitting member. * * * An examination of the poll-books and abstract of votes at these precincts, which are a part of the proofs, discloses evidence of these irregularities and the facility they afforded for fraudulent voting. The conviction is forced upon the committee that this facility was eagerly and largely availed of, if it were not the cause and temptation to much of the fraudulent voting. In several of these precincts it does not appear that any oath had been taken by the judges of election, which, if nothing else, might be supposed to be some check upon a dispo- sition to disregard or overlook the requirements of law. * * * * The poll-books show that the same person cast more than one vote, sometimes more than two — sometimes at the same precinct, and sometimes at different ones in the city — multiply- ing in this way his vote manifold in the general result. * * * * In this connexion they cite a late case of contested election in a court of law, the case of Mann vs. Cassidy, for the office of district attorney in the city of Philadelphia, at an elec- tion held October 14, 1856, contested in the court of quarter sessions in that city. The facts in that case, as summed up by the presiding judge, are so parallel with those disclosed in this case that the committee take the liberty to append them to- this report in an appendix, marked A, and solicit the attention of the House thereto. A reading of the evidence, as thus summed up, and as contained ifcthe proofs in this case, would almost lead to the conclusion that the one had been taken as the pattern of the other. After summing up the testimony at length, the judge concludes: "As the case now stands before us, we should be derelict in our duty did we not unhesitatingly express our conviction that the acts of the officers, in the election divisions to which we have referred, in the receipt and recording of votes, are so utterly and entirely unreliable that the truth cannot be deduced from any records or returns made by them in relation thereto." And he adds: "Had we not erased from the petition the specifications alleging gross frauds and irregularities on the part of the election officers in the divisions referred to, a different course would certainly have been adopted. The en- tire proceedings were so tarnished by the fraudulent conduct of the officers, charged witbj the performance of the most solemn and responsible duties, that we would not only have been abundantly justified, but it would have been our plain duty, to throw out the returns of every division to which we have referred." Following these precedents, based upon facts so similar that either might be taken for the other, and in accordance with their own conviction, that the truth cannot be deduced from the returns furnished by the judges at the Abbey pre- cinct, the committee are of opinion that it should be rejected, and not be made a part of the count of votes in this district. B and K, 32d regiment. — The second specification of contest is, that seventy- eight non-residents of the district voted for the sitting member, in companies B and K, 32d regiment of Missouri volunteers. The former voted in camp, in the 7th ward, and its poll-book (p. 109) returns 17 votes for. Blair, 2 for Knox, 1 for Bogy ; the poll-book of the latter (p. 108) returns 61 votes for Blair, and 528 CONTESTED ELECTION CASES IN CONGRESS. none for the other candidates. The contestant offered what he alleged were copies of the muster-rolls of these companies, (pp. 200-203.) The sitting mem- ber objected to these muster-rolls, and to all others offered by contestant, thirty- seven in all, found between pages 199 and 297, for the following reasons : Be- cause, 1st, they " are neither certified copies nor sworn copies, in any true sense of the word;" that the papers, from which those copies purport to have been taken, were not in the proper place of deposit, nor in the hands of the legal custodian, and that they are, in many instances, copies of copies. The testi- mony shows (p. 90) that the papers are copies of muster-rolls found in the adju- tant general's office of the State of Missouri, made by the witness, and sworn to as true copies by him. The committee are of opinion that, inasmuch as these are muster-rolls of regiments raised by the State of Missouri, and afterwards mustered into the service of the United States, the rule of the military service requiring one copy of these rolls to be deposited with the Adjutant General of the United States at Washington does not make either the copy deposited with the adjutant general of Missouri or that kept with the regiment copies of the one so deposited in Washington any more than that is a copy of either of them, but that either and each of them may be treated as an original, and the muster- roll of the regiment for all purposes for which it is to be consulted as such, and the adjutant general of Missouri a proper custodian thereof. " Sworn copies" of papers are expressly recognized in the act of Congress providing for taking testimony in contested election cases. — (Brightley's Dig., p. 255.) The com- mittee, therefore, deemed these papers as properly authenticated. It was claimed by the contestant that these muster-rolls were evidence of the following facts, viz : who were members of the regiment to which the rolls belonged, and what was the age and residence of the soldier enlisting. While, on the other hand, it was objected by the sitting member that, if properly authenticated, still the rolls would be evidence of nothing except the facts required by law to be recorded in them, and that neither the age nor the residence of the soldier was required to be inserted upon the muster-roll, and could not, therefore, be proved by it. The committee were of opinion that the law requires that the age of a soldier must be made known at the time of his enlistment; that by act of Congress (St. 12, p. 502) the oath of enlistment is conclusive against the soldier as to his age ; and that the record of age made from the oath of enlist- ment upon the muster-roll, by the proper officer at the mustering in, should be taken as prima facie evidence of the age of a recruit by third persons, especially by those who seek to avail themselves of the vote of such soldier. But the committee are of opinion that the muster-roll is not evidence of the residence be- fore enlistment of the soldiers whose names it bears. It is not of the slightest consequence to the recruiting service to know the residence of the recruit. The law does not require it to be ascertained, nor does the muster-roll purport to give it, but only the place where the recruit "joined for duty and was enrolled." But it is known that recruits are constantly going from all parts of a State and from different States to favorite places of rendezvous, and there enlisting, so that the place where a recruit enlisted is no evidence of his residence. While, therefore, the committee admit the muster-rolls as evidence of what men compose a regiment, and of their age, they are still only evidence of those facts at the time the muster-roll is made out. The certificate at the bottom of the muster-roll expresses what, in these particulars, it is evidence of, and is in this form: I certify, on honor, that this muster-roll exhibits the true state of company — , of the regiment Missouri volunteers, for the period herein mentioned ; that each man answers to his own proper name in person; and that the remarks set opposite the name of each officer and soldier are accurate and just. Captain Company , Missouri Vols. CONTESTED ELECTION CASES IN CONGRESS. 529 But the committee are of opinion that a muster-roll made out a long time be- fore the day of election (November 4, 1862) is not evidence of the " true state" of a regiment at that time. Eegiments are constantly changing. With many of them recruiting is all the time going on, and men are every day discharged. It cannot, therefore, be safe to say that because a name is not found on a muster- roll made out in 1861, that that person was not a member of the regiment No- vember 4, 1862, when the election took place. They therefore rejected all the muster-rolls offered as evidence of who did and who did not belong to the respective regiments on the day of election, excepting the following, viz : Company B,32d regiment, (p. 200,) dated December 8, 1862 ; company K, same regiment, .(p. 203,) same date; Naughton's company, 28th regiment, (p. 206,) dated September 12, 1862; company L, 10th cavalry,, (p. 209,) dated October 28, 1862; company B, 31st regiment, (p. 212,) dated August 28, 1862; and Captain Cain's company, 10th cavalry, (p. 292,) dated October 31, 1862. All these muster-rolls, made so near the time of the election, were held by the com- mittee to be prima facie evidence of what persons belonged to the respective regiments enumerated. So that if the name of a voter was not found upon these muster-rolls, it was incumbent upon the party claiming the vote of such a per- son as a member of one of these regiments to show that fact. But all the other muster-rolls, bearing date from one year to a year and a half prior to the day of the election, were not deemed by the committee safe evidence of membership sufficient to be taken as prima facie. But all these muster-rolls show the age of the soldier when he enlisted and the time of enlistment, and therefore of age one is as good evidence as another, and all are admitted as evidence to that extent, leaving each party at liberty to controvert them by other evidence. Applying this rule to the muster-rolls of B and K, 32d regiment, (pp. 200-'l and 203-'4,) it will be found that on muster-roll of B, (p. 200,) compared with poll-book of the same company, (p. 109,) five minors voted for Blair and one for Knox, and ten voted for Blair whose names are not found on the muster- roll as belonging to that regiment. A like comparison of the poll-book and muster-roll of company K, (pp. 108, 203-'4,) will, show that nine minors and sixteen not on the muster-roll voted for Blair, and the testimony (p. 92) shows one other,- a non-resident, so voting. The names of all these persons were given in the notice of contest to the sit- ting member, at the outset, as illegal voters. Every facility existed for meeting this evidence, but nothing was offered to contradict it, and the committee rejected as illegal the foregoing votes from these companies. Tenth specification. The allegation in this specification is that the votes of the several companies therein named were, for reasons therein specified, illegal. The first two com- panies here designated are the companies B and K, 32d regiment Missouri volun- teers, already considered. The next is company C, 10th regiment Missouri volunteers. A comparison of the muster-roll of this regiment (p. 206) with the poll-book (p. 108 ) shows that two minors cast their votes for Blair. Six casting their votes for him are not to be found on the muster-roll, and twenty -five are re- turned as " river men ; " which means, as the committee are informed, that the men live upon the river in boating and kindred employments, without claiming or having a residence in this district. The poll-book of " detached unassigned recruits," 10th Missouri volunteers, (p. 107,) returns also seven " river men," voting for Blair. A comparison of the muster-roll of company C, 7th regiment infantry, (p. 230,) with the poll-book (p. 100) shows the votes of two minors for Mr. Blair. The same comparison of muster-rolls of company E (p. 223) with its poll-book (p. 100) discloses the votes of four minors for Mr. Blair. The poll- book of company B, (p. 101,) same regiment, shows one vote for Knox from a H. Mis. Doc. 57 34 530 CONTESTED ELECTION CASES IN CONGRESS. resident of the second ward, which is not in the district. Three minors voted for Mr. Blair in company Gr, 6th regiment volunteer infantry, (pp. 107, 221,) and these several votes were rejected by the committee. Under the other specifications in the notice of contest the contestant ha& offered, and there will be found, much evidence tending to show that fraudulent voting was extensively practiced at very many of the precincts throughout the 'district. At Carondelet, about ten miles below St. Louis, an active partisan of the sitting member, Captain Eads, was at the time of this election building gun- boats, and having a lajge number of men in his employ. They came from all parts of the country, (p. 39.) Some of them had families in St. Louis, and, boarding at home, went and returned on the cars when they had employment. Mr. Eads took an active part previous to the election for Mr. Blair, and induced his men to go up to St. Louis to attend preliminary meetings, and provided tickets for them upon the cars, (p. 42.) On one occasion tickets were so furnished them to attend a meeting in St. Louis, at which Mr. Eads himself was going to speak, (p. 43.) On the day of election large crowds of these gunboat men took the cars at the voting place in Carondelet for St. Louis, after voting had been going on for some time, late in the forenoon, and a gentleman working as foreman for Mr. Eads passed through the cars and distributed the tickets for Blair, one of the crowd stating as they went that " they were all for Blow and Blair, helping Blow down there in Carondelet, and Blair in the city of St. Louis ;" and " that they had succeeded in getting in a good many votes before the old judge asked them too closely about their residence, how long they had been there, &c, but that he had got too particular, and some of them could not vote at that poll." There were two or three passenger cars filled with these men on that particular train, (pp. 56, 57.) But although these men set out for the avowed purpose of casting fraudulent votes, and were furnished with tickets by the foreman of their employer, and were carried from the poll in one district where the judge had become too particular for dishonest voters into this district under the guidance of the employer of Mr. Eads, who distributed among them votes for Mr. Blair as they went, yet these men are traced to no poll in St. Louis. Their names are not given, so that no examination of the poll-list will enable the committee to detect them. However strong the tendency of this testimony, it lacks this link, and the committee cannot say how many of them voted, nor at what poll they voted, nor for whom. The committee have, therefore, rejected! no votes from any poll on account of gunboat men from Carondelet. For simi- lar reasons, though the evidence had a strong tendency to show much fraudu- lent voting in St. Louis by men from Jefferson Barracks and United States magazine, and also of soldiers going from precinct to precinct in the city, yet the evidence failed either to furnish their names, except the thirty-two at the Abbey, so that the committee could themselves detect them on the poll-book, or to trace the voter himself to any particular poll, and therefore no votes on ac- count of these allegations or proofs have been rejected by the committee. The sitting mejnber, under his specifications, has confined himself almost en- tirely to the alleged illegality of the vote cast by the soldiers composing what was known as the "Osterhaus brigade," composed of the 3d, 12th, and 17th regiments infantry, 3d and 4th cavalry, Missouri volunteers. The allegations of the sitting member against this brigade are, first, that a large number (he claims 302) voted as soldiers in this brigade who did not belong to it; and, second, that a large portion of the others were non-residents of the district, and he insisted that upou the evidence in the record adduced in support of these two allegations, the vote of the whole brigade, 744 votes, should be thrown out. First, the committee call attention to the evidence offered in support of his allegation that 302 votes were cast by men not mem- bers of this brigade. It consists almost entirely of the muster-rolls of the regiments composing this brigade. It is proper, however, to state that the CONTESTED ELECTION CASES IN CONGRESS 531 sitting member contended against the admissibility of muster-rolls for any purpose, and only claimed that they are to be admitted as evidence for him, if for the contestant. The muster-rolls offered by the sitting member are found on pages 242, 245, 248, 251, 254, 257, 260, 263, 264, 267, 270, 272, 274, 276, 278, 280, 288, 290 ; and the poll-books with which they are compared are to be found on pages 306, 307, 308, 309, 3J0, 311. By reference to the muster- rolls it will be observed that none of them purport to show the true state of the company later than December 30, 1861, aud some of them bear date as long ago as August, 1861. They could not, therefore, be taken as showing the true state of the brigade in November, 1862, and would therefore be excluded, when offered for that purpose, by the rule applied by the committee to those offered by the contestant. But it appeared, by direct testimony, that recruiting for these regiments had been going on after these muster-rolls were filed in the office of the adjutant general, and previous to the election one hundred and fourteen were shown to have been added to the 12th regiment in the winter of 1861-'62, (p, 349.) One witness was on recruiting service in St. Louis for the 17th regiment when his deposition was taken, February 10, 1863, (p. 364,) and another testified (p. 341) that there were recruiting officers all over St. Louis city and county, recruiting for the Osterhaus brigade, from August, 1861, down to the time of the taking his deposition, February 13, 1863. The committee are confirmed by this testimony in the correctness of their conclusion tha^ these muster-rolls, showing the state of the brigade so long a time before the election, and before this recruiting had taken place, could not be relied upon as showing who composed the regiments on that day. One other remark is pertinent to the claim of the sitting member, that so large a number of names on the poll- books of this brigade are not to be found on its muster-rolls. The names are nearly all those of Germans, very difficult of pronunciation, and in many instances an American would find it impossible to spell the name correctly on hearing it pronounced. Yet the sitting member seems, in comparing the muster- rolls with the poll-books, as printed, to have pronounced every name on the one as not on the other, if they were not identical in orthography. -The committee, in their comparisons, found over eighty such names, but their conclusion that the muster-rolls did not show the true state of the brigade "on the day of elec- tion renders any comparison of this nature unnecessary. These rolls, however, do disclose the names of twelve minors voting for contestant, and they are rejected. The sitting member also offered the testimony of witnesses to show that these regiments were composed entirely of non-residents, and therefore not legal voters. Attention has already been called to the fact that recruiting officers for some of these regiments had been engaged all over St. Louis city and county since August, 1861. It was also testified that company H, 12th regiment, was entirely recruited in the tenth ward, and several other companies in that part of the city which is in this district, (p. 365.) There was other testimony of a like character as to several other companies, tending to show that they were origin- ally recruited in whole or in part from the first district, besides the recruits they had received from time to time from the same quarter, (pp. 337, 343.) But the sitting member submitted testimony from the record concerning many who had voted in this brigade, who, the committee were satisfied, were non-residents, and they were accordingly rejected by them from the count. The attention of the House will be called to the testimony applicable to each company by itself. Company K, 17 ih regiment. — The entire vote of this company was twenty- one for Knox. A soldier belonging to this company, (p. 372,) on being shown a list of its voters, testifies that all except two were residents of Iowa prior to and at the time of their enlistment ; was at headquarters when transportation was sent up to Guttenburg and Dubuque, Iowa, for them, and when they arrived. Of the two exceptions, he testifies that one resided in Dubuque, bwt 532 CONTESTED ELECTION CASES IN CONGRESS. enlisted in St. Louis ; the other resided in the first district, though but a short time before he enlisted. This testimony is not controverted, and twenty of these votes are rejected by the committee. Company I, same regiment, gave three votes for Knox, and the only testi- mony offered is that of a witness who testifies, (p. 328,) that, from what one of them told him once in 1861, he knew he was from Cincinnati. But the com- mittee were of opinion that this was not competent evidence to prove in this case that the voter was not at the time of the election a resident of the district, and so none of this vote was rejected. Company B, same regiment, gave thirty votes for Knox. A witness testifies (p. 328) that two of them named were intimate friends of his, and were at the time of their enlistment from Cincinnati. Another, a lieutenant, testifies, (pp. 239, 330,) that of the list of voters in this company there were but two citizens of St. Louis, and that the others were recruited by him at Cincinnati and Philadelphia, and of these two, the captain testifies (p. 340) that one was a resident of Illinois and the other of the first district. Twenty-nine of the thirty are therefore rejected by the committee. Company F, same regiment, gave twenty-seven votes for Knox. One witness testifies (p. 328) that he was in Cincinnati two years ago, and knew that Sternberg and Schaub lived there then, and was at headquarters when they came there, and they told him that they lived there at the time of their enlist- ment. But two other witnesses testify (pp. 330, 331) that. one of these men, Schaub, as well as several others named, were from St. Louis. There is no evidence given which shows that any other voter in this company was a non- resident, and the committee reject the one vote of Sternberg only. Company A, same regiment, gave thirty-nine votes for Knox. Tt was testi- fied by two witnesses (pp. 334, 336) that nine of this list were non-residents, and they are rejected accordingly. Company H, same regiment, gave twenty-five votes for Knox, and a witness testifies (p. 337) that two of them were residents of Fond du Lac, Wisconsin, and they are rejected. Company D, 12th regiment, cast forty-six votes for Knox. One witness, a member of the company, testifies (p. 360) that this whole company was recruited in the first, second, and third wards — the second' district. But he is evidently mistaken, for his captain (p. 332) gives the street where his company was recruited in the first district. The same witness (p. 333) testifies that three named by him of this company, Buckholtz, Schmidt, and John Webber, were non-residents. He also testifies that several others told him that they were non-residents, and one that he was a minor ; but the committee rejected the three votes named only. Company C, same regiment, gave thirty-three votes for Knox. Two wit- nesses testify, (pp. 333, 360,) one of them orderly sergeant of the company, that most of it was recruited in Cole Camp ; that ten names shown them were non-residents ; one testifies that eleven of the company did belong to St. Louis, (p. 348.) These witnesses testify that others on the list of voters they did not know as belonging to the company, and one of them, the orderly sergeant named, testifies to returning from recruiting to his regiment at St. Genevieve. Being with it " several times during three or four days," and examining the books, he thinks there could have been no such recruits without his knowing it, but states also that the first lieutenant was also recruiting, and he did not know the recruits recruited by him. The committee therefore rejected from this com- pany only these ten votes of those testified to be non-resident. Company I, same regiment, gave twenty-seven votes for Mr. Knox. The only testimony respecting it is that of two witnesses, members of the regiment, but neither of them of this company. One testifies (p. 347) " the company was raised in Davenport, Iowa, all except four or five, which were obtained in CONTESTED ELECTION CASES IN CONGRESS. 533 St. Louis ;" the other, Benther, who seems to have been relied on for much service as a witness as to many other companies as well as his own, who testifies, (p. 360) " a part came from Iowa under Captain Ahlefield, which was company I." No question is put to either of these witnesses to ascertain their means of information as to the residence of soldiers of a company of which neither was a member, nor was any other evidence introduced to controvert the statement. One of the soldiers who voted was of the " four or five which were obtained in St. Louis," and the committee rejected the other twenty-six. Company K, same regiment, cast thirty votes for Knox, and it is testified by a resident of Bon Homme township, which is not in the district, (p. 350,) that eleven of those named were his neighbors, well known to him to be residents of that township. This evidence does not seem to be controverted, and that num- ber (eleven) is rejected from this poll. The 5th regiment of cavalry voted at Ironton, Missouri, (p. 386,) and gave thirty -four votes for Knox. It is claimed by the sitting member that this entire vote should be rejected for two reasons : First, because notwithstanding the name of the regiment and place of voting are properly designated, yet the com- pany is not designated. But there is no requirement of law that the company should be stated upon the poll-book, and no necessity for it, if but one voted. Yet, if the law required this duty of the officers of election, the omission of it by them would not deprive the legal voter of his voice in the election if he had cast his vote as required by law. The other objection to this vote is this : One witness (p. 339) testifies that company G came from Wisconsin, and that John H. Baltorf was not recruited in St. Louis. Now, the name of John H. Baltorf js found on the poll-book as voting for Knox, and the sitting member, claiming that this witness had testified that Baltorf belonged to company G, insists that this proves that it was company G which voted at Ironton, and that it is also evidence that the whole number of votes here voting were from Wisconsin But a reference to the whole testimony of this witness (pp. 339 and 340) will show that he nowhere testifies that Baltorf belonged to company G. If, there- fore, the conclusion is logical, the premises upon which it is based are not proved, and the whole fails. Besides, all the knowledge the witness has of the residence of Baltorf is what Baltorf himself told him at some time not stated, (p. 340.) The committee have not rejected any votes from this poll. This constitutes all the material evidence submitted from the record by the sitting member to^sustain his allegations against the Osterhaus brigade. The poll-books from several companies were rejected by the official canvassers because of informalities in the returns. The following is a list of the polls thus rejected, with the reason for the rejection of each as certified by the secretary of the board of canvassers : List of rejected poll-books, November election, 1862. H, 7th regiment infantry ; camp near Jackson, Tennessee. Rejected for want of a cer' tificate. F, 7th regiment infantry ; Jackson, Tennessee. Rejected for want of abstract of votes. I, 3d regiment infantry ; Iron county, Missouri. Rejected for same reason. A poll-book. Rejected for want of a designation to show that it was a military vote. N° regiment nor company indicated. I, 30th regiment infantry; Pilot Knob, Missouri. Rejected for want of an abstract of votes. A, 29th regiment infantry ; Jackson, Cape Girardeau, Missouri. Rejected for want of a C 6 T tl fi C fl.t6 H, 30th regiment infantry; Camp Farrar, Pilot Knob, Iron county, Missouri. Rejected, as the voters register their names as living in other counties. A poll-book. Rejected for want of certificates and indication of regiment and company. A poll-book. Rejected for. want of certificates. No regiment or company indicated. F, 29th regiment infantry; Camp Peckham, Cape Girardeau, Missouri. Rejected for want of a certificate. "" D, 2d regiment artillery. No place indicated where election was held, and rejected for want of a certificate. 534 CONTESTED ELECTION CASES IN CONGRESS. D, 30th regiment infantry; Camp Farrar, Pilot Knob, Missouri. No abstract of the votes. K, Colonel Gray's regiment M. S. M. ; South Big River bridge, I. M. R. R., Missouri. Rejected for want of a certificate, the same having been torn off before ihe book came to this office. , 1st Missouri light artillery. No place indicated where election was held, and no certificate. B, 3d regiment infantry ; Pilot Knob, Missouri. Rejected for want of a certificate. A, 1st Missouri light artillery ; camp at Ironton, Missouri. No abstract of votes. Pioneers, 4th regiment infantry ; Moselle bridge, Missouri. No abstract of votes. E, 27th regiment infantry ; Camp Blair, Livingston county, Missouri. No abstract of votes. A poll-book ; Ironton, Iron county, Missouri. Rejected for want of some certificate to indicate that these are soldiers' votes. C, 4th regiment cavalry ; camp near Ironton, Iron county, Missouri. Rejected for the reason that one judge only signed the certificate. A poll-book; Ironton, Iron county, Missouri. Rejected for want of some indication to show that it was the vote of soldiers. D, 10th Missouri cavalry; Camp United States magazine, St. Louis county, Missouri. Rejected for the reason that one judge only signed the certificate. C, 30th regiment infantry; Camp Farrar, Pilot Knob, Iron county, Missouri. No ab- stract of votes. D, 27th regiment infantiy ; Camp Blair, near Chillicothe, Missouri. No abstract of votes. 13th regiment cavalry, M. S. M. ; headquarters Waynesville, Missouri. No abstract of votes. In the opinion of the committee, all of the polls which were rejected for want of " an abstract of votes " were erroneously rejected. The abstract is simply a computation or casting up of the votes, not required by law, and, if erroneously done, to be corrected. The name of each voter and the person for whom he voted is given in each case, and the computation left to be made is not only perfectly easy, but is what is being done all the way through this investigation. The committee have therefore taken into the count all polls rejected for this reason. The following table shows what polls are thus included, and for whom the vote was cast in each case : Knox. Blair. Company F, 7th regiment Missouri volunteer infantry 75 Company 1, 3d regiment Missouri volunteer infantry 8 Company I, 30th regiment Missouri volunteer infanty 1 11 Company D, 30th regiment Missouri volunteer infantry 11 Company A, 1st regiment Missouri light artillery 30 15 Company of pioneers, 4th regiment of infantry 4 3 Company E, 27th regiment Missouri volunteer infantry. .../... 33 Company C, 30th regiment Missouri volunteer infantry 25 Company D, 27th regiment Missouri volunteer infantry 6 35 187 But a comparison of the muster-roll of company F, 7th regiment Missouri volunteer infantry, (p. 236) — the only one of the poll-books of these companies found in the record — with its poll-book (p. 393) discloses six minors voting for Mr. Blair, and the poll of this company is reduced to sixty -nine accordingly. For the reason already stated the other polls cannot be compared with the mus- ter-rolls of the respective companies. The aggregate of the rejected vote, which the committee have thus included, is, therefore : For Mr. Knox, 35 ; for Mr. Blair, 181. The committee have thus, as well as they have been able, considered all the testimony iu this voluminous record which they have deemed material to the issues presented. They have found much that is uncertain and unsatisfactory, and no little that is irrelevant ; they have also found great difficulty in sifting this evidence; and in determining the weight to which it is all entitled. The result from it'all, to which they have arrived, they now submit to the House as follows : CONTESTED ELECTION CASES IN CONGRESS. 535 The official canvass gives to the sitting member and contestant the following Arote: , Blair. Official 4, 741 To be added from rejected polls 181 To be deducted, rejected by committee : At Abbey precinct 424 ■Company B, 32d regiment 15 Company K, 32d regiment 26 •Company C, 10th regiment 33 Unassigned, 10th regiment 7 •Company C, 7th regiment 2 Company E, 7th regiment 4 Company C, 6th regiment 3 To be deducted, rejected by committee: At Abbey precinct 41 Company fi, 32d regiment 1 Company B, 7th regiment 1 Osterhaus's brigade, company K, 17th regiment 12 Osterhaus's brigade, company K, 17th regiment 20 Osterhaus's brigade, company B, 17th regiment 29 Osterhaus's brigade, company F, 17th regiment 1 Osterhaus's brigade, company A, 17th regiment 9 Osterhaus's brigade, company H, 17th regiment 2 •Osterhaus's brigade, company D, 12th regiment 5 •Osterhaus's brigade, company C, 12th regiment 10 Osterhaus's brigade, company I, 12th regiment 26 •Osterhaus's brigade, company K, 12th regiment 11 4,922 5H 4,408 Knox. •Official 4, 588 To be added from rejected polls 35 4,623 166 4,457 Plurality for Mr. Knox, 49 votes. The committee, therefore, submit the folio-wing resolutions : Resolved, That Francis P. Blair, jr., is not entitled to a seat in this house as representa- tive in the 38th Congress from the first congressional district in Missouri. Resolved, That Samuel Knox is entitled to a seat in this house as a representative in the •38th Congress from the first congressional district in Missouri. 53 6 CONTESTED ELECTION CASES IN CONGRESS. MINORITY REPORT. • June 2, 1864. Mr. Ganson, from the minority of the Committee of Elections, submitted the following report : They have carefully considered the questions of law and fact involved in the contest, and have come to the conclusion that Mr. Blair was duly elected. The questions presented by contestant arise on his first specification, charging that illegal votes were received at the Abbey precinct; and on his 2d and 10th r charging that such votes were also cast for the sitting member in various army organizations. The questions presented by the sitting member arise on charges, six in num- ber, of similar voting for contestant in what'is known as the Osterliaus brigade, and in his 10th specification charging that the canvassing officers improperly rejected certain returns of army votes in his favor. *Ve shall follow the committee in its order of treating these subjects, and shall first consider the questions connected with the ABBEY PRECINCT. We contend that the poll-book of the Abbey precinct should not be rejected from the count : 1st. Because the contestant makes no charge of fraud Against the officers con- ducting the election at this precinct, and does not claim the rejection of the poll in his notice of contest. 2d. Because, if it was allowable to present new grounds of contest at the hearing before the committee and the House, the charges now presented, if ad- mitted to be true, would not warrant such rejection. 3d. Because the charges are not sustained by the proofs. The 1st section of the act of 1851 (9th Statutes, p. 568) requires that the grounds of contest shall be specified particularly in the notice of contest. This is but the re-enactment of the parliamentary rule; and the practice has been uniform under this to restrict the contest to the points presented in the notice ; and the 9th section of the act declares all evidence illegal which does not bear on the specifications of the notice, by restricting the evidence to be- taken to the specifications made in the notice. The only ground presented by the contestant, in connexion with this precinct, is contained in his first specifica- tion, which is in the following words : 1st. That at least 400 illegal votes were cast for you at a .precinct known as the Abbey- precinct, in said district. That the persons voting had not been citizens or inhabitants of the State of Missouri for one yaar previous to said election ; nor had they been residents of said district for three months previous to said election. Many of said voters were minors under the age of twenty-one years. A list of the voters whose votes are contested is annexed to and made a part of the notice. It will not be pretended that this notice declaring the intention of the con- testant to contend meant merely that the individuals named were not qualified voters, for one or the other of the reasons mentioned contains, either in form or substance, notice that it would be " contended by the contestant that the voting at this precinct was of such a grossly fraudulent character as to involve all con- cerned in it either in participation or passive permission, and to render it im- possible to sift and purge the poll" — which the committee report to be the present ground taken by the contestant. It is unnecessary to argue this proposition. It is so plainly an attempt to substitute an entirely new and different ground of contest from that specified in CONTESTED ELECTION CASES IN CONGRESS. 537 the notice that the unfairness and illegality of the proceeding is self-evident. It is unnecessary, also, because this course is subsequently recognized by the committee itself to be illegal, even whilst declaring their purpose to allow it to be done. • ' They say : " The House will not fail to notice the extraordinary character of many of the allegations of both, contestant and sitting member, as well in the matter as in the manner of their presentation. For vagueness, uncertainty, and generality, they are, in the opinion of the committee, without example, and seem to have been drawn in studious disregard both of the act of Congress and of all precedent. But as neither contestant nor sitting member was in a situation to take exception to the substance or mode of the other's pleading, the committee were not called upon for a decision upon this point, but present the case as they find it upon the record.. They do not feel at liberty, however, to permit these pleadings to pass into a precedent without recording the opinion that many of the allegations on both sides are bad, both in substance and form." — (Report, page 2.) Our position with reference to the insufficiency of the first specification or allegation to enable the contestant to claim the rejection of the Abbey ppll will hot be controverted, we believe, by the committee ; nor will they deny that the language just quoted was intended to justify them in overlooking the defect of this allegation in form and substance for the object sought under it. Here, then, is an acknowledged defect, which leaves the contestant without a case ; for without the rejection of this poll he is defeated by nearly four hundred votes. And the committee avow themselves " not called upon for a decision upon this point," but assume to have exhibited impartiality by overlooking like defects, which, they say, are to be found in the pleadings of the sitting member. Having told the House that the parties have drawn their pleadings "in studious disre- gard both of the act of Congress and of all precedent," they then inform that body that they themselves have imitated the parties, and have also disregarded the rules of law in conducting the inquiry referred to them. Is it an admissible principle that, instead of considering what is alleged, and whether the allegations made^ire proved in their proper order, the committee should enlarge the scope of the allegations of the parties at their discretion ? Even if it were possible to be perfectly impartial in such relaxations of legal principles, it would not be possible to adjust the scale of indulgence evenly between the parties even in ordinary circumstances, and certainly not in the exasperated state of feeling which surrounds this case. How, for example, can the committee assume the position of being just towards Mr. Blair, when they permit Mr. Knox to make a new allegation, under which he is enabled to throw out some four hundred votes as spurious, whilst, under the allegation which accompanied his notice, he could affect but about seventy votes at the utmost ? They certainly have not struck off four hundred votes from Mr. Knox's poll, which would be the practical test of fairness ; and if it be said that, in part requital, they have added one hundred and eighty-five votes to Mr. Blair's poll which the canvassers disallowed, the reply is : they have done so under the strictest and most technical charge ; that the action of the canvassers was, with respect to the returns in question, erroneous. — (See 10th specification, page 304.) In dealing 1 with this case, the committee expressly declare, in the passage we have quoted, that their action in it is not to be taken as a precedent. We hope not; we trust, indeed, that the House will take care that it shall not be a precedent. 2. Nor would the circumstances recited by the committee, if admitted to be true, support the allegation made for the first time in the committee-room, viz : that " the voting at this precinct was of such grossly fraudulent character as to involve all concerned in it," and make it proper to reject the whole poll ; nor were the polls rejected in the case of Blair vs. Barrett, cited as a precedent for this case, rejected upon the grounds stated in the report before us. 538 CONTESTED ELECTION CASES IN CONGRESS. Something more is wanting to convict duly selected officers, acling under oath, of perpetrating a fraud, than merely showing, first, that fifty-six paroled prisoners and thirty-two cavalry men, and possibly others, succeeded in getting their votes taken when they should not have been received. Second. That at various times during the day crowds of persons were seen about the polls, and probably voting, who were unknown to two of the neighbors. Third. That one of the judges did not act, during the whole day, in his official capacity, bat only during part of the day. Fourth. That a single friend of the sitting member was disorderly in the neighborhood of the polls ; and, fifth, that it is not proved affirmatively that the judges administered the oath required in cases of persons voting at other than their own precincts. These are the statements or charges made in this case. We have but to compare them with the charges made in the case of Blair vs. Barrett to see how entirely different, in all respects, the cases are. In that case the tenth charge was, that, at the western precinct of the ninth ward, Barrett dealt out liquor freely in a house near the polls, contrary to law ; that by this means he induced many persons to cast illegal votes, and his partisans were stimulated to commit violence on the judges, actually having struck one of them ; that by such means the judges were intimidated and made to receive many hundreds t>f illegal votes. The eleventh charge was, that the election at the Gravois coal mines was conducted in gross fraud; that the judges refused to administer the oaths required by law, allowed great numbers of votes to be cast that they knew to be illegal, threatened to commit violence upon those who challenged the fraudulent votes ; that Barrett was present and countenanced these frauds ; that one of the judges could not read, another judge and one of the clerks had been convicted of felony, and that neither of the judges nor of the clerks were sworn. The twelfth charged the judges of the eastern precinct of the ninth ward with fraudulently refusing to allow challengers ; refusing to administer the oaths required by law and to question fraudulent voters when challenged. The thirteenth charged the s,ame facts against the judges of the eastern pre- cinct of the eighth ward. * The nineteenth charged that the judges and clerks at the eastern precincts of the fifth, sixth, seventh, and eighth wards, at the Gravois coal mines, at George Sappington's house, and at the Harlem house, were not sworn. The tenth, eleventh, twelfth, and thirteenth charges were sustained ; and so much of the nineteenth as charged that the officers of elections at the Gravois coal mines, at George Sappington's, and the Harlem house, were not sworn; and they were excluded by the committee and the House in that case; and these last named were the only polls excluded in that case at all. The polls of the eastern precincts of the eighth and ninth wards, and the western precinct of the ninth ward, although tainted with fraud by the intimi- dation of the judges, by their refusal, not mere neglect, to put the oaths required by law, by their threats against challengers, by their allowance of multitudes of illegal votes, as shown not only by the enormous and unexplained increase of the vote, but by the positive proof of illegality in about two hundred indi- vidual cases, and all the other circumstances charged by the contestant and declared to be proved by the committee, were not thrown out of the count at all, as stated in the report before us. This is an unaccountable mistake of the fact into which the committee have fallen. It is true that the language quoted from the report in that case, tending to justify the exclusion of polls tainted by fraud, is correctly quoted ; but the argument was used only in aid of the legal point that the judges had not been sworn, which brought the case within the recognized congressional precedents. No polls were excluded save those at which the officers were not sworn ; and all of these were excluded, although, at some of them, no actual fraud was alleged or proved ; and it was upon this CONTESTED ELECTION CA.SES IN CONGRESS. 539 point, as presented not only by the report of the committee, but by the leading members of the House, (see particularly the speech of the Hon. Mr. Stevens, of Pennsylvania,) that the House gave Mr. Blair his seat in the thirty-sixth Congress. The House cannot sanction the report of the committee in this case, when nothing is alleged in the notice of contest but the reception of illegal votes ; and nothing more than that, in substance, is alleged or proved before the com- mittee without establishing a most dangerous precedent. We mean not to be understood as saying that a fraud is not alleged in general terms in the report; but we mean to say no specifications are alleged or proved which imply fraud. 3. In what has been said it has been assumed that the statements on which the committee predicate their judgment were sustained by proof; and we argued that no presumption of fraud would attach to the judges even on the assumption that every fact charged was true. Let us now consider the proof in the case, and inquire, first, what individual votes are shown by any proof whatever to be illegal. It is said by the committee that there is positive testimony that " eighty- eight of the voters, whose names are given, fraudulently cast their votes in a body, without question or precaution on the part of the judges, and the proof is little less conclusive as to many more." The eighty-eight persons who are here said to have cast their votes in a body, &c, are the fifty-six paroled prisoners and the thirty-two cavalry soldiers, whose names are supposed to be found in the poll ; ■ and the identity of the per- sons is assumed to be established by the identity of their names. This^s not the law. — (See 2 Phillips on Evidence, p. 214.) But we waive that point, and proceed to call attention to the recklessness of statement exhibited in this passage. Here it is said that these eighty-eight men voted in a body, without question, &c, when there is not a syllable of evidence given by any witness as to the manner of their voting, whether consecutively or not, or who makes any state- ment at all as to whether these, or any other voters, were questioned or not ; and the only evidence of their having voted at all is the poll-book itself, which contradicts, in the most striking manner, this aspersion on the judges, by show- ing that the men did not vote in a body. The voters are numbered in the order of their votes, and the names in question range from No. 29 to No. 476, (see all the numbers in the appendix,) showing that the votes were scattered throughout the day, and that not more than half a dozen of those voting did so consecu- tively, at any time. The committee are mistaken, also, as to the number of those whom they sup- pose to be affected by what they call positive testimony. But twelve names are found on the poll-book which would be claimed to represent the cavalry men of company 0, and but two of company E. (See names in appendix.) So that, instead of eighty-eight, there are but seventy which any one could claim as illegal voters. Another important error of the committee, the bearing of which will appear further on, appears in this statement that Captain Constable had charge of the paroled prisoners. This was not the fact. They were commanded by their own officers, some of whom testify in the case for contestant. Captain Constable was merely a quartermaster, and had supervision only of the laborers, mechanics, teamsters, hostlers, &e., in and about Benton barracks and the corral. But let us consider the charges made by the contestant, in the order stated by the committee, and in their own language. They axe, first, that " they," the judges, " admitted illegal voters to cast their ballots in a body, without any evidence that they even administered to a single one the oath required, by law, of non-residents." 540 CONTESTED ELECTION CASES IN CONGRESS. What is here said of allowing illegal votes to be cast in a body has already been sufficiently noticed ; and we quote the passage to remark on the admission which it contains, that the committee made this charge against the judges of allowing non-residents to vote without being sworn without having any evidence whatever before them of the truth of it, but based altogether on the extra- ordinary propositions that it contains ; that it devolved on the sitting member to show affirmatively that the proper oaths were administered, and that in the absence of such showing they were authorized to assume that the oaths were not duly administered. The reasoning of the committee appears to be, that as they were satisfied that eighty-eight illegal votes were cast, they were authorized to assume that the judges connived at this abuse, unless the sitting member showed the contrary by affirmative evidence; and hence that they are authorized to assume that the judges did not administer the oaths without having any proof on the subject being before them. Unquestionably, the presumption of law is the other way, and in favor of the judges having done their duty until the con- trary is clearly shown, and when it appears from the poll-book that the con- testant had friends on the ground all the time, and that he actually examined two witnesses, who were present, for four hours on the morning when the heaviest vote was cast for Mr. Blair, and no such failure is attempted" to be proved by them, or by any other witness. No one who reads over the record of the ex- amination, and observes the temper manifested by the contestant throughout the whole of it to expose every irregularity, can believe that if the judges had been open to this charge, it would not have been distinctly and affirmatively proved by him ; the presumption of law in favor of the judges is thus confirmed by a circumstance which, independently, would be conclusive of the fact. The next charge made by the contestant against the judges is, that they '' acted as partisans of the sitting member, and, against law, exchanged places with other partisans not authorized to act as judges." The evidence on which this charge is made is found in the testimony of John M. Eeuter : His sixth answer is : The judges appointed by the county court were Mr. Price, B. Hammersly, and Mr. Carpenter. Question 7th. Were they not all partisans of Mr. Blair? Answer. They were. There were only two, I have heard, electioneering in his favor, and these were Messrs. Price and Hammersly; the third, I understood, was a partisan of Mr. Blair's. Question 8th. Did these three men above named act as judges during the election day ? Answer 8th. Not during the time I was there. Question 9th. Who acted in the place of either of them? Answer 9th. Jerry Millspaugh acted in the place of Carpenter. Question ]0th. Who did he support for Congress? Answer 10th. He electioneered, in the afternoon, for Frank P. Blair. Question 11th. Who was judge in his place while he was electioneering ? Answer 11th. Mr. Carpenter. Question 17th. How long were you at the Abbey precinct polls, that day, altogether ? Answer 17th. About two hours — from about seven until nine o'clock. There is not the slightest warrant in this evidence, taken in its most forcible meaning, for the charge that these men, whilst they were judges, acted as partisans of the sitting member. Contestant did not, in his question 7, charge that they acted as partisans whilst acting as judges ; and the witness responds by saying that he had heard two of them electioneering in favor of Mr, Blair, but he does not say, or mean to be understood as saying, that they did so on election day. As respects the charge that Millspaugh exchanged with Carpenter, whilst the witness does say that he did, his own testimony, just quoted, shows that the witness could not be cognizant of the fact he swears to, for he swears he was only present from 7 to 9 in the morning, and that Carpenter did not act whilst he was there, and there is no proof in the record that he ever acted at all, or was qualified at all. CONTESTED ELECTION CASES IN CONGRESS. 541 The next charge is that they " surrendered the voting place to a violent par- tisan of the sitting member." The only support for this charge is found in the testimony of the witness just quoted. He says Mr. Elleard destroyed the tickets of Mr. Blair's opponents, and said, " Damn it, we don't want any such tickets round here; we have it our own way here to-day." He also says, page 71, answer 5 : " I saWone man put out of the room because he would not vote for Blair." Question 6. What is his name ? Answer 6. I do not know it ; he is an old man. Question 7. Who put him out ? Answer 7. Charles Elleard. Question 8. Did you see the commencement of the controversy between Elleard and the man put out ? Answer 8. No, sir ; I did not. Question 9. Do you mean to swear that he was put out because he would not vote for Blair ? Answer 9. I do not know for whom he wanted to vote. I can't say that he was put out because he did not want to vote for Mr. Blair, but because he wanted to vote different. Question 10. Was not his vote rejected because he was not legally entitled to vote by the judges ? Answer 10. I do not know. Question 11. Do you know of. your own knowledge whether he was a legal voter or not ? Answer 11. I do not ; but he was an old man and an American. Question 12. Had you ever seen him before 1 Answer 12. I could not swear that I had ; I might have seen him or I might not. Question 13. Have you ever seen him since ? Answer 13. I think not. This second example of Reuter's testimony is precisely like the first just quoted, in which it appeared by his statements, made in response to the inter- rogations of the contestant, that he swore to what he did not know, saying that Carpenter acted as judge in the evening, whilst he testified that he was not there after 9 a. m., and all the time he was there Messrs. Millspaugh, Price, and Hammersly were judges. So on the point now under consideration, he first testifies positively that Mr. Elleard put a man out of the house because he would not vote for Blair; then says he did not know for whom he wanted to vote, or whether his vote had not,been rejected because illegal by the judges, and, there- fore, removed from the stand by their direction, or indeed anything whatever about the occasion of his removal. The destruction of the tickets and the profanity of Elleard, to which the com- mittee attach so much importance as to quote his language, if true, are made too much of altogether, as it seems to us. The destruction of the tickets of oppo- nents when scattered about carelessly on tables, as those in question seem to have been, is a common incident 'of elections, and for that reason the friends of the various candidates commonly retain possession of them, especially at precincts where they are greatly in the minority. That this charge is a mere afterthought of the contestant's is conclusively shown by the fact that he did not allege in his notice that his friends were prevented from voting at this precinct, and by the number of votes actually cast for him — as many, he would pretend now, as he was entitled to receive at the precinct. This Mr. Elleard, for the purpose of impressing the House with the terrors of his presence at the polls, is described as a race-course keeper, when the proof shows that though he owned the place that had once been a race-course, it was not a race-course at the time in question, and, for aught that appears, had not been since he owned it. It was then a pasture for the horses of the govern- ment, and one of the witnesses of contestant, Mr. Bobb, who attended the polls for two hours in the morning and again in the evening, says Mr. Elleard was not at the polls whilst he was there, but was occupied attending to the horses in the neighboring pasture. It would not be difficult to find two or three persons who had refrained from voting at any contested election for fear of being rudely spoken t.n 542 CONTESTED ELECTION CASES IN CONGRESS. The next and last charge made against the judpes is that they "achieved the astonishing result of getting near four times as many votes as were ever before or since polled at this precinct from voters, all strangers to long residents of the district." The report says, page 5 : "In reply to this evidence, (the contestant's,) the committee do not find in the whole record that the sitting member has taken any testimony to support the legality or fairness of the voting at that precinct, except the testimony of Captain Constable, the same person to whom the watch before referred to was presented, taken in this city after the hearing was commenced, and excluded from the consideration of the committee by a vote of the House. The sitting member has contented himself with relying upori such testimony as to the validity of this vote as could be extracted from the witnesses offered by the contestant by cross-examination, which consisted in statements that there were teamsters and others in the employ of Captain Constable, and others not soldiers, and also employes of the United Ejtates at a government corral, a short distance from this voting precinct, who sometimes wear soldiers' clothes, and who were believed to be citizens of St. Louis, and who might h*ave cast this great vote. That they did so no one has testified ; but the name of each one of these illegal voters was furnished the sitting member in the notice of contest, and he had sixty days after his answer to take any testimony he pleased as to their right to vote. A record of all the teamsters and employes of the government at Benton barracks, and at the govern- -ment corral, not soldiers, existed at those places. It could have been compared with the poll-list, and if found there the men themselves were at hand to name their residences in some one of the wards of the district, or others could have testified to the fact if it existed. If these votes came from the sources suggested, the proof it of was so easy that its absence adds weight to the testimony against their legality. This, in substance, declares that it was only necessary for the contestant to say that all the votes cast at the Abbey precinct were illegal; nay, more; for when it is proved by Pasquier, one of the contestant's own witnesses — and not on cross-examination either, as the committee say, but in reply to questions put by contestant himself — that the large vote complained of was cast by three hun- dred to three hundred and fifty persons, known to him to be residents in the district, but who were temporarily employed near the pofrby the quartermaster — (see extract from the testimony in appendix) — the committee say that will not do. Mr. Blair had notice that these men were all illegal voters; and though Mr. Knox's own witness swears to the contrary, Mr. Blair should have had testimony of his own, and shquld have verified what Mr. Knox's witness said as to the civilian character of the great mass of these voters by showing their names as such on the rolls of the quartermaster. The proof, they say, was so easy, in regard to this statement, that its absence adds weight to the testi- mony given against their legality. It is difficult to believe that such reasoning could be adopted by any one not having a foregone conclusion. The committee seem to forget that it is Mr. Knox who has to prove these votes to be illegal, and that his work was not ended when he charged that four hundred illegal votes had been cast for Mr. Blair at this poll, and furnished him with four, hun- dred and eighty names, (the whole poll,) forty-one of whom voted for Mr. Knox himself, "as the names of each one of these alleged illegal voters." — (See specification 1 and list appended.) On what principle of law or common sense is it that Mr. Blair is required to fortify the double presumption of the legality of the votes cast, arising from, first, their names being on the poll-list, and, second, from the testimony of Pas- quier, a witness for contestant, proving them to be qualified voters — testimony which should be decisive for Mr. Blair with every fair-minded man, not only because it is given by a witness of his opponent, who is manifestly candid and truthful, but because the contestant himself could, and unquestionably would, Have fcontradieted it by the rolls of the quartermaster referred to by the-com- mittee, if the statement had not been true ? The diligence he has shown in comparing this poll-book with the rolls of paroled prisoners and other organizations, far and near, leaves no room to doubt that he would have produced the quartermaster's roll also if it had not made CONTESTED ELECTION CASES IN CONGRESS. 543 against him. The theory of the contestant, which the committee adopt, is, that the vote at the Abbey precinct was swelled by the vote of paroled prisoners. To countenance this theory, they most unceremoniously allowed Mr. Knox to supersede their officers, and put Captain Constable, a friend of Mr. Blair, in command; and they stuck to the theory, although the contestant, having searched the rolls of the fifteen hundred paroled prisoners, could find but about fifty names to correspond with any at the Abbey poll, and in defiance, too, of the testimony of contestant's own witnesses, pointing out the true and legal source from which the increased vote came, and when it is absolutely certain that the contestant would have confuted his witnesses' statement, if it had not been true, by the rolls of the quartermaster, to which the committee refer. We have thus considered every ground upon which it is contended that this poll should be excluded, stating them in the language of the committee and quoting the language of the witnesses called to support them, and we believe that no fair mind can read what we have written without being convinced that there is no just ground for excluding the poll from the count. It is apparent, indeed, that the idea of excluding this poll was but an after-thought of the contestant himself, resorted to only when it was manifest to himself that he could not identify a sufficient number of the voters with the paroled prisoners and soldiers, whom he had erroneously supposed had cast the vote, to deprive Mr. Blair of his seat. Second and tenth specifications and series of muster-rolls, tyc. The second specification charges that Mr. Blair received seventy-eight votes from companies B and K, 32d regiment, which were illegal, because the voters had not resided in the district three months ; and in support of this allegation, the contestant offered in evidence the muster-rolls of these companies. The sitting member objected, first, to the authenticity of the rolls offered, and, second, to the competency of the evidence on the question of residence, which was the only question raised by the specification under consideration. The committee overruled the first objection, but sustained the second, and say (page 8) " that the muster-roll is not evidence of the residence before enlist- ment of the soldiers whose names it bears. It is not of the slightest conse- quence to the recruiting service to know the residence of the recruit. The law does not require it to be ascertained, nor does the muster-roll purport to give it, but only the place where the recruit joined for duty or was enrolled." It might be supposed from this that, as non-residence was the only ground upon which the votes of the companies B and K were questioned, and that as the muster-rolls which constituted the only evidence offered to establish it were declared to be incompetent for that purpose, there was an end to the contro- versy respecting those votes. Not at all. The contestant claimed the right to impeach them for infancy, and not being members of the companies at the time they voted as such* and offered the rolls as evidence on these points. Mr. Blah- objected not only because of the unfairness of making use of testimony in the record to suppo'rt charges not presented there, even if competent to prove the charges had they been duly presented — it being impracticable for him to get testimony at that stage of the proceedings to meet it — but also because the muster-rolls were not, by law, evidence of the ages of the soldiers, no entry being required by law to be made in them on the subject, as shown by many of the rolls in the record before the committee. (For example see ex. 26, 27, and 28, and a majority of those of the Osterhaus brigade.) The act of 1862 (12th Statutes, page 502) merely estopped soldiers from plead- ing non-age by requiring that every enlisted man should be deemed and taken by the courts to be at least eighteen years old, whatever the real truth might 544 CONTESTED ELECTION CASES IN CONG-EESS. • be. It required no questions to be asked or oath to be taken from a recruit on the subject of his age when mustered into the service, and no entry to be made on the muster-roll. Nevertheless, Mr. Blair said if 'the committee dealt with the subject as Mr. Knox proposed, by striking off the polls the names of such voters as appeared by the muster-rolls to be under age, or whose names were not on the muster- rolls, the result would be to strike off three hundred and four for Knox, whilst if all the voters challenged by name for any reason as having voted illegally for him were stricken off, the number was but two hundred and fifty-eight. The committee held that all the muster -rolls should be received as evidence on the question of age, but only those dated in 1862 (six in number) should be admissible to prove who belonged to the companies. • This, in effect, declares that the muster-rolls shall be evidence for Mr. Knox, but not against him, for the rolls of his voters were dated in 1861, and, for the most part, contained, as already noted, no entry of age, whilst the rolls of Mr. Blair's voters were dated in 1862, and all. purported to give the ages of the soldiers. The illegality and unfairness of this decision seem obvious enough without argument. It cannot require argument, first, to show the House that it is illegal and un- fair for a contestant who challenges the legality of some seventy-eight voters on the ground of non-residence to be allowed to have some of their names stricken off the polls, on proof that they are minors, and others on proof that they did not belong to the companies with which they voted ; second, that it is illegal to make the muster-rolls evidence of age, when entries purporting to give it happen to be found on them which neither the law, regulations, nor cus- toms require to be made ; or, third, that it is arbitrary and unjust to make some half a dozen rolls which happen to be dated in 1862, and which tell against the sitting member, evidence of membership, whilst those dated in 1861, which tell against contestant, are ruled out. It may^be true, as the committee say, that the greater proximity of date of Mr. Blair's rolls makes them, in some measure, better evidence of membership at the date of the election than the rolls of an earlier date which contain the names of Mr. Knox's voters. But this is merely a speculative opinion, and is debatable, as will presently be shown. The ground on which the committee discriminate in favor of the genuineness of the vote of the Osterhaus brigade on this point (whilst they are obliged to allow that great frauds have been committed in it in other respects than in any other organization which voted at this election) is, that as more time elapsed between the muster and the vote, and during that time the recruiting- was going on, it is more probable that the names not found on their rolls were recruits than with Blair's missing voters. This, however, is but one aspect of the subject. The committee do not con- sider at all the circumstance which probably accounts for the absence of the large number of Mr. Blair's voters, which occurs in companies mustered in six weeks after the election, to wit, that the members at the date of the election had been rejected at the muster or had obtained substitutes. Changes from such causes every one familiar with the subject knows to be numerous at such a period in these organizations. To assume now that men did not belong to a company on the 4th of November, when a sworn officer of the law, who took their votes on that day, certifies that they did, in the act of certifying the polls — this, too, without any notice to Mr. Blair that these voters were challenged on that ground at all, merely because some other i officers do not report them as mustered into the service six weeks afterwards — seems to us to be most unsatisfactory reasoning. The position of the committee on this point is, in our judgment, indefensible. The muster-roils are either evidence or not evidence on the point in question ; and it is impossible for a mind which holds to legal or logical principles to be satisfied with a decision which makes CONTESTED ELECTION CASES IN CONGRESS. 545 these rolls evidence against Blair and not against Knox, grounded merely on the differences in the dates of the rolls. There is no difficulty with the sub- ject on legal principles. The returns of sworn officers must be accepted as prima facie evidence on an election question, just as the muster-roll would le on any question connected with military matters ; and if, as in the present case, the law authorized certain officers to take a vote of the members of a military organization for civil purposes, the return would be prima facie evidence of the qualification of the voters, just as in other cases. That evidence would not be rebutted by a muster-roll, if even the same date, for both might be true ; and whilst, as in the present case, none of the muster-rolls purport to give the rolls of the companies on the day of election, the discrepancies between them cannot create the least doubt as to the verity of either. Three votes are stricken from Blair's poll as not found on the rolls of companies B and K, 32d regiment. Joseph P. Newsham was adjutant of the regiment, and for that reason his name does not appear on the roll of his company, K ; John Dam- bach and Charles Suchee, who voted in company K, were members of com- pany B in November, when mustered. Under the 10th specification, charging non-residence on all and minority on some, with respect to the votes of twenty-six companies, the committee, in the manner above considered, compared the poll- books with the muster-rolls of these companies, and after throwing off from Mr. Blair's poll seventeen names as minors and not members, strike off the names of thirty-two persons re- turned as "river men" — "which means," say the committee, "as the committee are informed, that the men live upon the river, and kindred employments, with- out claiming or having a residence in this district." This information, thus acted on, obtained outside the record, was contradicted by the record itself; for the act of voting showed conclusively that these men claimed to reside in the first district ; and we are informed that the whole land- ing of the city, and all the boarding-houses where they lay up when the boating season is over, are in this district; and that the right of the "river men" to vote in it has never been questioned before, and we certainly think such ques- tion comes with an ill grace from a candidate who it appears, on his own testi- mony, (page 366,) lays up every summer, and between times, in Massachusetts, where his family have resided for {he last seventeen years, after the courts close in St. Louis. It seems unjust to us, too, to deny the right of suffrage to the hardy men upon whose toil, more than upon that of any other class, is built up the commerce of the city, out of which the contestant derives his livelihood in his occasional visits to the place. The evidence we have been considering the committee allows to be the only testimony which affects a vote cast for Mr. Blair ; but before passing to the con- sideration of his reply and counter charges, they make some comments on the course of Mr. Eads in this election, giving some countenance to the charges o^f the contestant, which are sweeping; and therefore meaningless, when made by him, but coming from the committee are better calculated to impress many minds than anything they have said professedly based on testimony. It is upon the testi- mony of Mr. Hume, the editor of the Missouri Democrat, whose malignant false- hood towards Mr. Blair was developed before to the House, in connexion with the charges of the Hon. Mr. McClurg, that the committee assume that Mr. Eads induced his men to cast many fraudulent votes for Mr. Blair, which could not be traced, and could not, therefore, be deducted from his poll. We will show upon what trival grounds the committee make this grave charge. Hume says, page 57, he came up in the cars from Carondelet, where Eads's boat-yard is situated, in the forenoon. There was a crowd of gunboat men around the polls at Carondelet, out of whom the cars were filled. Saw a man distributing tickets in the cars among men whom he took to be gunboat men. Heard nothing par- ticular, except one man told him they were all for Blow and Blair, and "that 546 CONTESTED ELECTION CASES IN CONGRESS. they had succeeded in getting in a good many votes at Oarondelet for Blair before the old judge asked them too closely about their residence, how long they had been there, &c, but that he had got too particular, and some of them could not vote at that poll." Question 16. Where did he say the men principally came from? Answer 16. From Cincinnati and Louisville, and that they had not been in the State for over three or four months. It is upon such testimony, and from a most violent partisan, that the com- mittee gravely state as a fact established before them that a large number of men were sent up to the city by Mr. Eads to cast fraudulent votes for Mr. Blair, and this is asserted, too, when by the testimony of^Mr. Mann, page 38 — a witness for contestant, and not a friend of Mr. Blair — -it is shown that many of Eads's men lived in the eighteenth district ; that not one-twentieth of them were really from other cities, and where, if a fraudulent design must be attributed to Mr. Eads in sending the men to St. Louis, it was far more probable that it was to aid Mr. Blow, in whose behalf he had spoken at the Soulard market, to which place it appeared he had previously paid the fare of his men to hear him. But Mr. Mann testifies positively that Eads connived at no illegal voting, and exercised no undue influence. He endeavored by his public speeches to persuade the men to go for Blair and Blow, but paid the fare of all to the polls, and paid them all wages for the day, whether they voted as he wished them to or not. It is to be regretted that upon no other grounds than the report of a conver- sation made by a partisan of the temper of Mr. Hume with some unknown per- son, the committee should have made such comments upon Mr. Eads's course. The testimony before them shows him to be a most liberal and fairminded gen- tleman,- utterly incapable of defrauding any one; and the whole country knows that to his genius, almost as much as to the valor of Grant and Porter and the men serving under them, we owe the opening of the Mississippi, for those gun- boats, so.effective in the capture of Forts Henry, Donelson, Vicksburg, Grand Gulf, &c, and in keeping open the river since the capture of those places, are the products of his genius, in a region of country where previously naval arma- ments were unknown. Mr. Blair's specifications. We premise our review of this part of the case by remarking that we cannot agree to the statement of the committee, that the specifications of Mr. Knox and Mr. Blair are alike defective. On the contrary, we assert that Mr. Blair offered no proof not covered by his specifications in the strictest construction, and that he neither asked nor was allowed any latitude. Mr. Blair alone has not been allowed to challenge any voter before the committee not named in his notice, and the ground upon which the vote was charged to be illegal assigned in the most Certain and unequivocal manner. Mr. Knox, on the other hand, has been allowed to challenge a whole poll on the ground of fraud without a hint of such a purpose in his notice, and numerous individual votes have also been stricken off Mr. Blair's poll on the ground of nonTmembership of the company with which they voted, without a suggestion anywhere that a vote was to be impeached on that ground. Many names have been -stricken off his poll for minority, with no other specification than that a portion, of .certain named persons were minors. For example, he charges that many of theivoters registered in some twenty-six poll-books, to which he refers, were minors. The first six specifications of Mr. Blair's relate to the companies of the Oster- haus brigade, composed of the seventeenth, twelfth, and third regiments Mis- -i souri infantry, and third and fourth cavalry. From company K, seventeenth « infantry, the committee deduct but twenty of the twenty- one votes claimed by CONTESTED ELECTION CASES IN CONGRESS. 547 I Mr. Blair. Mr. Blair claims to have proved one non-resident voter in company I, of the seventeenth regiment. The witness, ia reply to the question, " Do you know wheie any of the members of company I came from?" says, (page 328,) " I know H. Heller (the man referred to) came from Cincinnati." Question. How do yon know that ? Answer. I know it from, what he told me. Question. When was it he told you so ? Answer. It was in October, '61. The committee say they "are of opinion that this was not competent evidence to prove in this case that the voter was not at the time of the election a resident of the district." The testimony is distinct that the man said "he came from Cincinnati to enlist. This decision means that it is incompetent to prove a man's residence by his declaration, made at a time when it is not a point in issue. This is erroneous. (See 1 Hill & Cowan, notes on Phillips on Evidence, p. 224.) Mr. Blair claims to deduct twenty-three, the whole vote of company F. "The committee allow but' one. Three witnesses were examined touching this com- pany — Julius Scher, page 328, Charles Zimmer, page 330, Hugo Golmar, page 331. The first swears that two of the company, Stearnburg and Schaub, came from Cincinnati; that he knew them both there, and that Clemens Graf and Paul Schernman lived in Philadelphia when enlisted, as they told witness. Zimmer, first lieutenant of the company, who resided in first district, and voted for Knox, testifies that he didn't know where any of the company came from, save three, one of whom was Schaub. The captain also knew but three of his company as coming from St. Louis. He mustered forty men for the regiment in Cincinnati, but could not tell the names of one of them. The committee, however, rejected none but Stearnburg's vote, disregarding here again the proof of the declara- tions of Graf and Schernman, and the strong probabilities against the residence of all save three of the voters of this company, arising from the fact that neither the captain nor lieutenant knew them to be residents. We think three are clearly proved to be non-residents. • From company A Mr. Blair claims ten deductions. The committee report but nine. The tenth man, Sergeant Rothe, we suppose, is not rejected by the com- mittee, because one of the witnesses says he came to St. Louis, and was there a short time before enlisting. The other, however, swears that he claimed Cin- cinnati to be his home. From company D, 12th regiment, Mr. Blair claims the deduction of forty-six names. Gustavus Benthe (page 360) testifies that he helped to raise the regi- ment, and gives numerous details respecting the composition of this and other companies, showing a minute acquaintance with them, and his testimony is con- firmed in every point by undisputed proof in the case. He says that every man in company D came from either the first, second, or third wards — all out- side the first district. But the captain of i the comp'any states (page 332) that his headquarters, or recruiting station, was on Second street, between Spruce and Myrtle streets, and for that reason alone he regards the captain's testimony as conflicting with Benthe's testimony, and therefore rejects Benthe's altogether. But the captain, so far from contradicting Benthe's testimony, confirms it ; for, although he says he did little of the recruiting himself, and knew the residence of but three of his men, he says they all came from outside the district, and the committee actually reject these three, although recruited within the district, so that the committee did not really think the only reason they aasign for re- jecting the forty-three other votes challenged a valid one. How can the House accept and act with confidence upon a report characterized by suoh facts ? Captain Sauer testifies (page 333) that Henry Borno lived in the second ward. From company Mr. Blair claims a deduction of twenty-three votes. The captain, first lieutenant, and orderly sergeant, all testify tliat but few of thecom- pany came from St. Louis. The captain and orderly sergeant, on being shown 548 CONTESTED ELECTION CASES IN CONGRESS. the poll-list, identify Huffman, Schwartz, Heiner, Betzinger, and Frost (five) as from Illinois; Feldmau, Jagler, Lutzer, and Hushkamp (four) as from Camp Cole, near Sedalia. The sergeant testifies further, that Straubbe and Husr were from the southern part of the city — that is, from the second district, and that eleven voters — Nos. 11, 12, 13, 15, 25, 26, 27, 28, 39, 30, and 35 — were not members of the company on the 4th of November. The committee reject the first eleven, but miscount and call them ten. They retain the last eleven, notwithstanding the sergeant testifies positively (page 361) that no such names were on the rolls, or had joined the company, fourteen days after the election, . when he returned to his company, because, he says, the first lieutenant had been absent since August recruiting, and the committee seize upon the idea that the lieutenant might have had these men with him, forgetting that they had to be with the company to vote ; and yet the committee strike every vote from the poll of Mr. Blair not found on the roll of the company made out six weeks after the election. Strike off three of these votes, and the forty -three of com- pany D, all retained by the committee against their own reasoning, and Mr. Blair is elected, even on their own counts. From the 5th regiment Mr. Blair claims to have thirty-four votes deducted. He fails, as the committee think, and as we argue, to identify that part of the regiment which voted as company G, recruited in Wisconsin ; but the witness does prove that John H. Bottorp was a non-resident. Bottorp's vote should be rejected, and so should those of Henry Hosli and Frank Waters, both of whom are returned as from Bonhomme township. The /Committee refuse to reject Bottorp's vote, saying, the witness only knew of his non-residence by his telling him. The witness did think that conclusive; but he does not say that this was his only reason for the statement. The committee ruled out the testimony as to the 3d regiment of the Osterhaus brigade, and properly, we think. They sustain the allegation of Mr. Blair's 10th specification, that the irregularity upon which the canvassing officers rejected the returns from certain companies enumerated by him was not such as .to vitiate the returns. This applies to nine of said companies. There was, in fact, no defect whatever, and the only pretence for not counting the votes was, that the returning officers had not cast them up. Recapitulation. The following is the count of the committee : The official canvass gives to the sitting member and contestant the following vote: Blair. Official 4, 741 To be added from rejected polls 181 4, 922 To be deducted, rejected by committee : At Abbey precinct 424 Company B, 32d regiment, (5 members, 10 not members) ...... 15 Company K, 32d regiment, (9 members, 16 not members, 1 non- resident) ' 26 Company C, 10th regiment, (2 members, 6 not members, 25 river men) 33 Unassigned, 10th regimeut, (river men) 7 Company C, 7th regiment, (minors) 2 Company E, 7th regiment, (minors) 4 Company G, 6th regiment, (minors) 3 514 • 408 CONTESTED ELECTION CASES IN CONGRESS. 549 Knox. Official 4, 588 To be added from rejected polla 35 4,623 To be deducted, rejected by committee : At Abbey precinct 41 Company B, 32d regiment, (minor) ,1 Company B, 7th regiment, (non-resident) 1 Osterhaus's brigade, company K, 17th regiment, (minors) 12 Osterhaus's brigade, company K, 17th regiment, (non-residents) . 20 Osterhaus's brigade, company B, 17th regiment, (non-residents) . 29 Osterhaus's brigade, company F, 17th regiment, (non-residents) . 1 Osterhaus's brigade, company A, 17th regiment, (non-residents^ . 9 Osterhaus's brigade, company H, 17th regiment, (non-residents). 2 Osterhaus's brigade, company D, 12th regiment, (non-residents) . 3 Osterhaus's brigade, company C, 12th regiment, (non-residents). 10 Osterhaus's brigade, company I, 12th regiment, (non-residents). 26 Osterhaus's brigade, company K, 12th regiment, (non-residents) . 11 ' *166 4,457 Plurality for Mr. Knox, 49 votes. We count thus : Blair. Official 4,741 Added from rejected polls, including 6 minors deducted from company F, 7th regiment 187 Total vote for Blair 4, 928 Knox. Official 4, 588 Added from rejected polls 35 4, 623 Difference with the committee. Deduct from company B, 7th regiment, (non-resident) 1 - - Deduct also from vote in 5th regiment 3 3 Deduct from Osterhaus's brigade : Company K, 17th regiment infantry, (non-residents) 20 Company B, 17th regiment infantry, (non-residents) 29 Company F, 17th regiment infantry, (non-residents) 3 2 Company A, J 7th regiment infantry, (non-residents) 10 1 Company I, 17th regiment infantry,(non-residents) 1 1 Company H, 17th regiment infantry, (non-residents) 1 2 Company D, 12th regiment infantry, (non-residents) 46 43 Company C, 12th regiment infantry, (non-residents) 22 12 Company 1, 12th regiment infantry, (non-residents) 26 Company K, 12th regiment infantry, (non-residents) 11 Total dif. 62 Total deductions , ' 164 Leaving total vote for Knox • 4, 459 " ■ " ~ except 54. 550 CONGESTED ELECTION CASES IN CONGRESS. Which, deducted from Mr. Blair's vote, leaves 469 majority for Mr. Blair ; or allowing that identity of name proves identity of person, and deducting all the votes from Blair which have any resemblance to those of the paroled prisoners, &c, 70 in number, and still Mr. Blair will have a majority of 399. Note. — If the votes of Newsham, Dambach, and Sachse be added to Blair's poll, to which we presume the committee will not object, (see our remarks rela- tive to companies B and K, 32a regiment,) this will reduce Knox's majority to 46. Three of the votes we deduct from Mr. Knox's poll the committee retain from oversight, to wit : 'those of Hosle and Waters, of the 5th regiment, and Henry Boone, of company D, 12th regiment. Another vote is gained for Knox in company 0, 12th regiment, by miscount. This would leave him but 42 ma- jority. If we deduct the 5 non-residents, proved so by their own declarations, to wit : 1 in 5th regiment, 2 in company f , 1 in company A, and 1 in company I, 17th regiment, Knox would have but 37 majority, which would be overcome by allowing the remaining 42 of company D, or the 11 in company C with the 32 " river men," or the remainder of the 32 rejected from companies B and K, 32d regiment, and C, 10th regimen);, because not found on the muster-rolls ; or these 62 last named would suffice. Conclusion. The contestant fails, therefore, if the House should refuse to sanction the con- fessedly erroneous procedure of allowing the contestant to make a charge of fraud against the officers of the Abbey precinct at the hearing not made in his notice ; or, allowing the charges against the judges, as they are presented by the committee, to be presented nunc pro tunc if the House adheres to prece- dents ; or, third, if the House decide that the fraud is not proved ; or if the House dissents from the ruling of the committee making the muster-rolls evi- dence of age and membership of companies, and excluding the votes of the " river men ;" or if the House rejects the votes which are clearly shown to have been illegally cast by the Osterhaus brigade. JOHN GANSON. JAMES S. BROWN. D. W. VOQRHEES. The debate on the case in the House was upon the points made in the reports. The House agreed to the majority report (June 10, 1864) — ayes 81, nays 33. Note. — The debate will be found in vol. 52, page 2855. For the report : Mr. Dawes, , pages 2850, 2859. Against the report : Mr. Brown, page 2857. THIRTY-EIGHTH CONGRESS, FIRST SESSION. McHenry vs. Yeaman, of Kentucky. The principal allegation of the contestant was, that the election was cavried by fraud and force, and that test-oaths were introduced unknown to the laws of the State. The majorities for the sitting member were very large, and the committee, holding that occasional irregular- ities should not vitiate an election, reported in favor of the sitting member. The House sus- tained the report. IN THE HOUSE OF REPRESENTATIVES, May 13, 1S64. Mr. Smithers, from the Committee of Elections, made the following report : That an election was held in August, 1863, in said district, for a representa- tive in Congress, at which there were cast 11,398 votes, of which George H. CONTESTED ELECTION CASES IN CONGRESS. 551 Yeaman received 8,311, and John H. McHenry, jr., 3,087, being a majority for the sitting member of 5,224. The said congressional district is composed of twelve counties, viz : Breckin- ridge, Butler, Christian, Daviess, Edmondson, Grayson, Hancock, Henderson, Hopkins, McLean, Muhlenberg, and Ohio, and in each of which counties the sitting member received a majority of the votes cast. On the 22d of September, 1863, the contestant served his notice of contest, specifying the grounds of objection to the validity of the election. These groun ds are, mainly, the issuance of certain military orders by Colonel John W. Foster, Brigadier General Shackelford, and Major General Burnside, in relation to the said election; that the election was carried by fraud and force, and that test-oaths were applied unknown to the laws of Kentucky. It is not the purpose of the committee to enter into any elaborate investiga- tion-of the specific causes alleged, nor to consider whether the military orders thus issued were or were not proper; they were designed to carry out the law of Kentucky, and in no wise to interfere with the freedom of the elective fran- chise. For a clearer understanding of this purpose the committee refer to the said orders and the proclamation of Governor Kobinson, hereunto appended. The only question in this case is, whether there was an election in the second congressional district of Kentucky 1 Either the proceeding is wholly invalid, or the sitting member is entitled to retain his seat. There can be no pretence cf title on the part of the contestant. Was George H. Yeaman the choice of the legal voters of the district 1 The most satisfactory, and, as seems to the committee, the conclusive answer, is furnished by a comparative statement of the votes cast at this election, and of those for several years preceding. The official vote at the presidential election of 1860 was 15,236; in May, 1861, for delegates to the border States con- vention, 13,328; in June, 1861, for representative in Congress, 14,665; for governor in August, 1863, 10,652. It is therefore manifest that Mr. Yeaman received a majority of the whole voting population of the district, measured even by the standard of 1860, the largest vote ever cast; so that, upon the hypothesis that its voting capacity had not been reduced by the events of the rebellion, had every person who did not vote from any cause whatsoever cast their votes for the contestant, he could not possibly have been elected. It will be observed that there is no suggestion by the contestant that illegal votes were cast against him, but only that he was prevented of his election by fraud and intimidation. But it is not true' that the number of votes in the district was as large as it had been at previous elections. It is in evidence by the certificate of Adjutant General Boyle, dated October 9, 1863, that 5,714 men had been contributed by the second congressional district to the army of the United States alone. How many of these men were present at the election is uncertain; but that a considerable number were absent is admitted by the contestant, who specifies as a ground of complaint that soldiers who desired to vote for him were refused furloughs. The committee do not deem it necessary, in view of the foregoing facts, to enter into a minute examination of the evidence. That occasional irregularities occurred is true, but in the main the election was quiet, peaceable, and orderly, and by no possible contingency could the majority actually received by the sitting member have been overcome. They therefore recommend the adoption of the following resolution : Resolved, That George H. Yeaman is entitled to a seat in this house, as the representative from the second congressional district of Kentucky in the 38th Congress. 552 CONGESTED ELECTION CASES IN CONGBESS. OEDEBS, ETC. General Order, ? Headquarters U. S. Forces, No. 12. 5 Henderson, Ky., July 28, 1863. In order that the proclamation of the governor and the laws of the State of Kentucky may be observed and enforced, post commandants and officers of this command will see that the following regulations are strictly complied with at the approaching State election : None but loyal citizens will act as officers of the election. No one will be allowed to offer himself as a candidate for office, or be voted for at said election, who is not in all things loyal to the State and federal governments, and in favor of a vigorous prosecution of the war for the suppression of the rebellion. The judges of election will allow no one to vote at said election unless he is known to them to be an undoubtedly loyal citizen, or unless he shall first take the oath required by the laws of the State of Kentucky. No disloyal man will offer himself as a candidate, or attempt to vote, except for treason- able purposes ; and all such efforts will be summarily suppressed by the military authorities. All necessary protection will be supplied and guaranteed at the polls to Union men Tfry all the military force within this command. By order of JOHN W. FOSTEE, Colonel, Commanding. W. A. Page, Lieutenant and Adjutant. Oath to be taken at the election, I do solemnly swear that I have not been in the service of the so-called Confederate States In either a civil or military capacity, or in the service of the so-called provisional government of Kentucky ; that I have not given any aid, assistance, or comfort to any person in arms against the United States ; and that I have, in all things, demeaned myself as a loyal citizen since the beginning of the present rebellion. So help me God. General Order, \ Headquarters 1st Brigade, 2d Division, 23d Army Corps, No. 23. S Russellville, Ky., July 30, 1863. In order that the proclamation of the governor and the laws of the State of Kentucky may be observed and enforced, post commandants and officers of this command will see that the following regulations are strictly complied with at the approaching State election : None but loyal citizens will act as officers of the election. No one will be allowed to offer himself as a candidate for office, or be voted for at said election, who is not in all things loyal to the State and federal governments, and in favor of a vigorous prosecution of the war for the suppression of the rebellion. The judges of election will allow no one.to vote at said election unless he is known to them to be an undoubtedly loyal citizen, or unless he shall first take the oath required by the laws of the State of Kentucky. No disloyal man will offer himself as a candidate, or attempt to vote, except for treason- able purposes ; and all such efforts will be summarily suppressed by the military authorities. All necessary protection will be supplied and guaranteed at the polls to Union men by all the military force within this command. By order of J. M. SHACKELFOED, Brigadier General, Commanding. J. E. Huffman, Assistant Adjutant General. Oath to be taken at the election. I do solemnly swear that I have not been in the service of the so-called Confederate States in either a civil or military capacity, or in the service of the so-called provisional government of Kentucky; that I have not given any aid, assistance, or comfort to any person in arms against the United States ; and that I have, in all things, demeaned myself as a loyal citizen since the beginning of the present rebellion. So help me God. General Orders, ? Headquarters Department of the Ohio, No. 120. ) Cincinnati, Ohio, July 31, 1863. Whereas the State of Kentucky is invaded by a rebel force, with the avowed intention o' overawing the judges of election, of intimidating the loyal voters, keeping them from the. polls, and forcing the election of disloyal candidates at the election on the 3d of August ; and whereas the military power of the government is the only force that can defeat this CONTESTED ELECTION CASES IN CONGRESS. 553 attempt, the State of Kentucky is hereby declared under martial law, and all military officers are commanded to aid the constituted authorities of the State in support of the laws and the purity of suffrage, as defined in the late proclamation of his excellency Governor Robinson. As it is not the intention of the commanding general to interfere with the proper expression of public opinion, all discretion in the conduct of the election will be, as usual, in the hands of the legally appointed judges at the polls, who will be held strictly responsible that no dis- loyal person be allowed to vote, and to this end the military power is ordered to give them its utmost support. The civil authority, civjl courts, and business will not be suspended by this order. It is for the purpose only of protecting, if necessary, the rights of loyal citizens and the freedom of election. By command of Major General Burnside : LEWIS RICHMOND, Assistant Adjutant General, Official: W. P. ANDERSON, Assistant Adjutant General. [By telegraph.] Cincinnati, August 3, 1863.. Major General H. W. Halleck: The rebel force under Scott, which I reported having crossed the Kentucky river, is now in full retreat in the direction of Somerset, with Colonel Sanders in close pursuit. A great many mules and horses and over three hundred prisoners have been captured, among these Colonel Ashby. . They came into Kentucky to make a diversion in favor of Morgan, and ■ will probably be much damaged before getting out. A. E. BURNSIDE, Major General. Headquarters op the Army, February 15, 1864. Official copy: D. C. WAGER, Assistant Adjutant General. War Department, February 16, 1864. Official copy, respectfully furnished Hon. John H. McHenry, jr., for his information. C. T. CHRISTENSON, Assistant Adjutant General. Proclamation by the governor. Commonwealth op Kentucky, Executive Department. For the information and guidance of all officers at the approaching election, I have caused to be herewith published an act of the legislature of Kentucky, entitled "An act to amend chapter 15 of the Revised Statutes, entitled ' Citizens, expatriation, and aliens.' " The strict observance and enforcement of this and all other laws of this State regulating elections are earnestly enjoined and required, as being alike due to a faithful discharge of duty, to the purity of the elective franchise, and to the sovereign will of the people of Ken- tucky expressed through their legislature. Given under my hand as governor of Kentucky, at Frankfort, this 20th day of July, 1863, and in the seventy-second year of the Commonwealth. ■ J. F. ROBINSON. By the governor : D. C. WlCKLlPFE, Secretary of State. Chapter 509. AN ACT to amend chapter 15 of the Revised Statutes, entitled "Citizens, expatriation, and aliens." SEC. 1. Be it enacted by the general assembly of the Commonwealth of Kentucky, That any citizen of this State who shall enter into the service of the so-called Confederate States in either a civil or military capacity, or into the service of the so-called provisional government of Kentucky in either a civil or military capacity, or, having heretofore entered such service of either the Confederate States or provisional government, shall continue in such service after this act takes effect, or shall take up or continue in arms against the military forces of the United States or the State of Kentucky, or, shall give voluntary aid and assistance to those in arms against said forces, shall fl^ueemed to have expatriated himself, and shall no longer be a citizen of Kentucky, nor shall he again be a citizen, except by permission of the legislature, by a general or special statute. 554 CONTESTED ELECTION CASES IN CONGRESS. Sec. 2. That whenever a person attempts or is called on to exercise any of the constitu- tional or legal rights and privileges belonging only to citizens of Kentucky, he may be required to negative on oath the expatriation provided in the first section of this act, and upon his failure or refusal to do so shall not be permitted to exercise any such right or privilege. Sec. 3. This act to be of foree in thirty days from and after its passage. Passed and became a law, the objections of the governor to the contrary notwithstanding, March 11, 1862. All papers throughout the State will publish this proclamation and accompanying act until the election, and send bills to the secretary of state. Executive Department, Office of Secretary of Slate. I, E. L. Van Winkle, secretary of state for the Commonwealth of Kentucky, and keeper of the archives thereof, do hereby certify that the above printed copy of the proclamation of Governor Eobinson, and an act of the general assembly of Kentucky, is a true copy of the original proclamation and act on file in this office. In testimony whereof, I have hereunto set my hand and caused the seal of the State to |- -, be affixed. Done at Frankfort this 14th day of January, A. D. 1864, and in the *■ "J seventy-second year of the Commonwealth. E. L. VAN WINKLE, Secretary of State. By JAMES E. PAGE, Assistant Secretary. The debate in the House was principally upon the question of the alleged military interference. In the course of an argument upon the subject Mr. Wadsworth, of Kentucky, said : * Now, sir, in common with the colleagues from Kentucky with whom I act on this floor' condemning as I do this illegal and arbitrary exercise of military power in the second con" gressional district of Kentucky, they would not vote, and I should not vote as I expect to vote, in favor of my colleague, the sitting member, if I were satisfied that these orders had influenced the election to such an extent as to give him a majority of the whole vote of the district. We are satisfied that he is the choice of that district ; we are satisfied that the party which nominated him, and to which both the gentleman contesting (Mr. McHenry) and the sitting member belonged, had an indisputable control of the district on any fair test, and that the orders were impertinent and unnecessary. We are satisfied that the sitting member received a majority of all the votes of the district, and that that majority was not due to the moral effect of these orders, nor the disgusting military wrongs perpetrated in portions of the district. We believe that he would have obtained a majority in that election if these orders had never been issued ; I think he would have received a larger majority ; at least I am warranted in coming to that conclusion from my own experience in the same canvass, and belonging, as I do, to -the same political organization, pledged to the same unequivocal- platform of opposition to the radical measures of the administration, of opposi- tion to the republican party, to a war for the negro, but in favor of the war for the Union ; the same platform to which every member of this Congress from Kentucky was pledged, and upon which all of them were elected. The sitting member "stated his view of the Jaw of the case as follows : I desire now to call the attention of the House to some of the principles involved in this case. In a contested election from the Territory of Michigan, Biddle and Eichard vs. Wing, in 1826, this house held — '■ " Au election is the act of selecting on the part of the electors a person for an office of trust." Speaking of referring a case back to the people, it is said : "This, however, ought not to be done when it is possible to ascertain what the true result has been. The elective privilege is a very important one, and ought to be held in the highest estimation." * * * * "No doubts which are capable of being solved ought to be permitted to operate against them. Indeed, nothing short of the impossibility of ascertaining for whom a majority of votes have been given ought to vacate an election." In another case coming from Virginia in 1793 — Trigg vs. Preston — a company of soldiers under the command of Captain Preston, a brother of the sitting member, had a disturbance at the polls ; a magistrate was knocked down, blnnd was spilled, the' poll surrounded, and voters kept away. The sitting member had a majority in the whole district of 10 votes instead of 5,224. The committee on account of the disturbance reported against his right, but after a protracted discussion the House confirmed him in his seat. CONTESTED ELECTION CASES IN CONGRESS. 555 None will doubt General Burnside's naked legal right and power to declare martial law in his department or any portion of it. The propriety of it or the sufficiency of the reasons that moved him are another question. His power as a military comman.der was undoubted. Does, then, martial law per se make void an election not controlled by it, when the result could not have been otherwise, and when the order specified it was to secure the enforcement instead of the suspension of the local law of elections 1 Admitting any given act or order to be illegal,, is tie sitting member to be held responsible for it unless he be .shown to be particeps criminis 1 If any irregularity will make void an election, a candidate seeing his defeat sure might spoil the election by procuring the commission of an irregularity, and thus do by fraud and connivance what he could not do at the ballots. If any order by the military will vitiate an election, no matter what the vote, it is in the power of any adminis- tration to perpetuate itself in power by secretly causing some subordinate to issue some order, and then, though it had no control over the election, though the sitting member got a clear majority of all the votes in the district, he must go out because of this order. So that the question in every case is, Has there been an election ? Have the people spoken, and what have they said 1 And this house is the sole and supreme judge of that without any On May 30, 1864, the House agreed to the report— jyeas 96, nays 26. NOTE.— The debate will be found in vol. 52, pp 2527-2585. In favor of the report : Mr. Smithers, p. 2527 ; Mr. Wadsworth, p. 2535 ; Mr. Smith, p. 2538; Mr. Harding, p. 2579; Mr. Yeaman, p. 2580. Against the report: Mr. McHenry, p. 2528 ; Mr. Voorhees, p. 2534. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Todd vs. Jayne, of Dakota Territory. This case turned upon the question of illegal voting, which was charged on both sides. A deposition, taken after the time prescribed by the statute for closing testimony, was excluded. The notice was served upon the sitting delegate before the result was declared, the law requiring that it shall be served within thirty days after the result of the election has been declared. The committee held that the sitting delegate could waive this defect in the pro- ceedings, and as he did so, he eould not avail liimself of it afterwards. Justices of the peace are competent to take depositions in a Territory. IN THE HOUSE OF REPRESENTATIVES, May 24, 1864. Mr. Dawes, from the Committee of Elections,* made the following report : The election here contested was held at the time provided by the laws of the Territory, upon September 1, 1862, and the board of canvassers, in conformity to law, proclaimed the result to be as follows, (Mis. Doc. No. 27, p. 126 :) Counties. Todd. Jayne. Clay, 1st and 2d precincts 64 66 Tancton 66 ~ 66 Todd 24 13 Dakota cavalry , 9 11 Cole, 1st and 2d precincts 50 18 Brule" precinct 8 63 221 237 Majority for Jayne, 16. The returns from Charles Mix county and Bon Homme county were not included in this canvass, 'but were rejected by the canvassers. There was a 556 CONTESTED ELECTION CASES IN CONGRESS. return received from Kitson county, a few days after the proclamation of the result was made, as follows : St. Joseph, Dakota Territory, , Office of the Register of Deeds, September 5, 1862. At an election held on the first day of September, A. D. 1862, in the county of Kitson and Territory of Dakota, being the seventh council and representative district of said Territory, the following persons received the number of votes annexed to their respective names, to wit : For delegate to Congress, J. B. S. Todd had one hundred and twenty-five votes. For delegate to Congress, William Jayne had nineteen votes. Certified by me. CHARLES MORNEAU, Clerk of the Board of County Commissioners. Sworn to before me this 13th day of September, A. D. 1862. JOHN B. BATTIMAN, Justice of the Peace. The proclamation by the canvassers of the final result was made November 29, 1862. The contestant served upon the sitting delegate his notice of contest, (pp. 1, 2, 3,) November 17, 1S62, charging the casting of illegal votes for the sitting delegate in the counties of Yancton, Cole, Charles Mix, and Bon Homme, and that other legal votes cast for contestant were not counted for him in Bon Homme and Cole counties, and what is called the Pembina district ; that legal voters were prevented from voting for contestant in Charles Mix county by threats and violence, and' that a majority of the legal votes of the Territory were cast for contestant. The sitting delegate answered these allegations (pp. 4, 6, 6) on the 15th December, 1862, with a general denial, and alleging that the return from Charles Mix county should be received and counted, and that illegal votes were cast and counted for the contestant at Big Sioux Point, in Cole county ; that the voting district called Pembina is situated wholly in Indian territory, and was by the organic act, for that reason, out of the political limits of the Territory, and no person residing within it was entitled to vote; that a majority of the legal votes cast at said precinct, if any, was cast for the sitting delegate, and that a very large part of the vote returned from said precinct was fraudu- lent and fictitious, and that a majority of all the legal votes of the district were cast for the sitting delegate. At the commencement of the, session the credentials of both contestant and sitting delegate were referred to the committee, and neither was admitted to the seat. At a subsequent day the committee made a report, (No. 1,) accompanied by the following resolution : Resolved, That William Jayne, having presented a certificate, in due form of law, of his election as delegate from the Territory of Dakota to the 38th Congress, is entitled to take the oath of office and occupy a seat in this house as such delegate, without prejudice to the right of J. B. S. Todd, claiming to be duly elected thereto, to prosecute his contest therefor, according to the rules and usages of this house. This resolution was adopted by the House, and Mr. Jayne thereupon took the oath of office, and has occupied the seat pending the contest. Technical objections were raised at the outset, on both sides, that the proceedings had not conformed to the statute of 1851 concerning contested elections. The con- testant insisted upon the exclusion of the deposition of Joseph L. Buckman, (p. 154,) because taken after the time prescribed by the statute for closing tes- timony. By the statute, sixty days from December 15, 1862, the time of the answer, is allowed for taking depositions, which in this case would be February 15, 1863, and they are to be taken in the Territory by some magistrate named in the statute and resident of the Territory. This deposition was taken March 11, 1863, in the District of Columbia, before one of the judges of the orphans' court of this district. -The law is explicit, that, while the House can authorize CONTESTED ELECTION CASES IN CONGRESS. 557 the taking of depositions after the expiration of the time fixed by statute,' yet without such authority "the evidence must be excluded. The House has hereto- fore, in another case, ,that of Knox vs. Blair, instructed the committee to exclude a deposition — that of N. S. Constable, taken in this city under similar circumstances — and this deposition was therefore excluded. The sitting delegate objected to the proceedings on the part of the contestant, because they also failed to comply with the statute, in this : First, that while the statute requires the contestant to serve his notice of contest upon the sit- ting delegate within thirty days after the result of the election has been de- clared by the board of canvassers, the notice in this case was served upon him before the result was declared. The notice was served November 17, 1862, and the result proclaimed November 29, 1862. The answer of the sitting delegate, which was upon the- merits, and without notice of this objection, was served upon the contestant December 15, 1862. And the committee are of opinion that this was a defect which the sitting delegate could waive, and that by answering after the result had been proclaimed, and within the time when a new notice of contest could have been served, without' availing himself of the objection and proceeding to take the testimony, he had waived the right to object to it at the hearing. The sitting delegate further objected that the testi- mony of contestant was not taken before magistrates authorized by the statute to take testimony. The depositions appear to have been taken before two justices of the .peace, residents of the Territory, who are only authorized to take ■ them when there are none of the other officers mentioned in the statute in the Territory. The statute requires that whoever takes the depositions shall be a resident of the Territory, and the only persons before whom the sitting delegate claims the depositions should have been taken were the chief justice of the Ter- ritory, P. Bliss, and associate justice, J. L. Williams. ' Of their residence in the Territory, the evidence is, (pp. 15, 19, 21, 27, 37, 82,) that their families have never been domiciled in the Territory, but, since their appointment at Sioux City, in Iowa, their post office matter is sent to that city, where they reside, only coming into the Territory to hold their courts, and then returning to their families in Sioux City. .Judge Bliss, who was in the Territory when the notice to take the first deposition was given, which was given to take them before him, " or before some other person duly qualified to take said testimony," on Friday, the sixth day of January, 1863, writes to the attorney a note, (p. 10,) in' which he says, " I will open the examination and remain as long as I can — at least till Friday evening." The committee were of opinion that the two justices of the peace, residents of the Territory, were competent to take the depositions. A voter is to be a white male"citizen of the United States, and a resident of the Territory ninety days. The contestant claims that t-tn non-residents voted for 'sitting delegate in Yancton county, (pp. 14, 16, 17.) Their names are *D\ T. Fessenden, C. Fessenden, A. B. Wood, J. Mellen, Albert Mellen, N. Edmonds, G. W. Lamson, G. N. Propper, Josiah C. Trask, and Sergeant Patrick Conway, of company A, Dakota cavalry. The testimony as to the first five named is, (pp. 14, 16,) that they were surveyors, having contracts to survey land under the surveyor gen- eral of the Territory, occupying tents when so employed, and leaving the Ter- ritory as soon as their work was completed, to their homes in Michigan and Illinois, where their families resided ; that they left the Territory a day or two after the election, and whether they ,ever returned or not depending upon new contracts, not homes, in the Territory. And although it is testified (p. 152) that they were residents of the Territory, yet the character of that residence clearly appears to be as above stated, and the committee did not deem them residents within the meaning of the law, and rejected their votes. It was testified of Propper, (p. 22,) by a person who accompanied him, that he was a resident of Freeborn county, Minnesota, and left there June 16, 1862, for Dakota. He 558 CONTESTED ELECTION CASES IN CONGRESS. could not, therefore, be a voter. It was testified of Trask that he resided ill Kansas, (pp. 27, 29;) was editor of the Kansas State Journal; said he came to the Territory to bring the printed laws of the Territory, and to settle with the secretary for the printing of the same, and returned a short time after the elec- tion, and was killed in the raid upon Lawrence. His vote is rejected. Of Lamson it was testified (pp. 14, 17, 29, 31) that he was a clerk in the surveyor general's office ; his family never lived there, but in Michigan ; he left the Ter- ritory a few days after election for his home in Detroit, and declared he would never bring his family there. His vote was rejected by the committee. There was also testimony of a similar character in respect to Newton Edmonds, but he himself swears (p. 152) that he has resided in the Territory since July, 1861, and he is now there, governor of the Territory, and his vote was not rejected by the committee. Patrick Conway (p. 24) resided, at the time of his enlist- ment, at St. John's, Nebraska, and enlisted there. The committee, therefore, rejected his vote. It was not disputed that these nine persons cast their votes for the sitting delegate, and they must therefore be deducted from his count. BON HOMME COUNTY. The vote of this county was rejected by the canvassers, and it is claimed by the contestant that there should be counted from this county twenty-six votes for him, and thirteen for the sitting delegate. The evidence shows (pp. 33, 58) that the polls were opened at 9 o'clock in the morning, at the house of G-. M. Pinney, United States marshal; Moses Herrick, D. C. Gross, and Jacob Kiel acted as judges. Silas G. Irish was originally appointed by the county com- missioners of the county, as the law requires, to act as one of the judges. He was notified of his appointment by Harvey Hartsough, one of the commissioners, and accepted the appointment. A few days after this same Mr. Hartsough, one of the commissioners, came to him and said to him " that he didn't ' care a damn whether we (referring to the Jayne party) had the majority or not; we would swindle them (the Todd party) out of it anyhow.' I replied to Mr. Hartsough, . that ' You cannot carry any election that way. As a republican, I was dis- gusted with this practice of the democrats in Kansas, and that no fraudulent vote should go into that ballot-box unless it walked first over me.' He turned away from me in seeming disgust at my reply. I heard very shortly after that Mr. Skinner was appointed in my place on the election board." Mr. Skinuer was not permitted to serve, however. On the morning of the election he repaired to, the polls, before 9 o'clock, as the witnesses think, at any rate before any voting was commenced, ' and found Jacob- Kiel, the servant of this same Harvey Hartsough, and kn^wn as the Dutch boy in this county, (p. 38,) installed in his place, and the United States marshal refused to admit Skinner into the room, declaring that Jacob Kiel should act as judge. The voting was done through a window. One witness (Shober) thereupon stationed himself at the window on the outside, and requested the voters to vote open tickets, while he took their names, and those who voted for Todd did so, num- bering twenty -five in all, whose names he gives, (p. 34.) And there were four- teen other votei s, making thirty-nine in all. A recess of an hour was taken for dinner, and during that time Moses Herrick, one of the judges, took the ballot- box and carried it away with him into a room in his own house by himself. The balloting continued in the afternoon, and at the close of the polls, when the counting commended, which is described by the witness as follows, (pp. 35, 36:) The judges proceeded to count the hallots, denying admittance to the electors at the polls- The judges first began the canvass of the votes by taking the tickets from the ballot-box and separating the same into two different piles — the Todd tickets in one pile, and the Jayne tickets in the other. The Jayne tickets were distinguishable from the Todd tickets by their CONTESTED ELECTION CASES IN CONGRESS. 559 blotted surface, the ink showing plainly through the ticket. 1 It became at once apparent that a fraud had been perpetrated, by the substitution of ballots during the hour had for dinner. There were at this time about twenty-five persons around the polls, and much ex- citement ensued. As soon as I saw the excitement, I demanded to be admitted, and to have the canvass made public, which was at that time peremptorily refused by the judges, and by Mr. Pinney, who was their spokesman. During this time Mr. Johnson and myself were standing at the window, directly in front of the judges. Upon this refusal of admission into the room the excitement still increased. The judges thereupon gathered up the tickets and threw them back into the box. I then again demanded admission. After some hesitation, Pinney suggested that myself and Edward Gilford be admitted ; we entered together, and went up to Moses Herrick, one of the judges of election, and asked him to proceed with the canvass, which he refused to do. I then asked him to show me the tickets, whereupon he handed me thirty of the tickets to examine. I looked them over in his presence, and found that I was right in my conclusions. I then asked him to show me the other nine of the tickets, which he refused. I found fifteen tickets, among the number handed me, for Jayne. I then laid them down on the table and remarked to Mr. Herrick that there was prima facie evidence of fraud ; that there had not been fifteen votes cast for Jayne; whereupon the judges and clerks jumped up, under the lead of G. M. Pinney, and left the room, leaving poll-books, ballots, and all papers connected with the election, lying on the table. Great excitement prevailed. The canvass was never completed. The crowd rushed in (p. 159) and took possession of the ballot-box, poll-books, and ballots, and proceeded then to hold a new election. The committee were of opinion tbat the conduct of all parties engaged in this transaction was disgraceful and fraudulent, and that no votes should be counted from that precinct. CHARLES MIX COUNTY. The returns from this county were rejected by the canvassers. The con- testant alleges against this vote (p. 2) that it was wholly illegal, fraudulent, and void, for the reason that one hundred Iowa soldiers and eleven half-breed Indians voted for the sitting delegate, and that violence and threats were used to keep away from the polls the friends of the contestant. The testimony of contestant upon this vote is to be found upon pages 60 to 82 ; that of sitting delegate upon pages 124 to 152. It is admitted by the sitting delegate that the Iowa soldiers were not entitled to vote; but he claims that four of the halt- breeds whose names are found on the poll-book have been made citizens by special act of the territorial legislature, (private laws, 1st session, p. 1,) and were, therefore, entitled to vote. The committee were of opinion that the allegation of threats and violence at the polls was not sustained by the evidence, and they saw no reason, if it could be ascertained by the evidence how many Iowa soldiers and hajf-breeds not legal voters cast their votes at this precinct, why the balance of the vote should not-be counted. From the poll-book of the precinct (p. 1 1 1) it appears that one hundred and forty-five votes were cast : for the sitting delegate one hundred and thirty-eight, and for the contestant seven. Of the Iowa soldiers several were examined as witnesses — some of them voting at the time, and some not. The poll-book was produced, and the names upon it examined by them. Their testimony as to the number of Iowa soldiers who thus voted will be found, (pp. 63, 65, 66, 73, 76, 77, 78, 79,) and is generally concurrent that there were seventy who thus voted. One testifies (p. 63) to the number seventy-eight, two others at seventy, (pages 73, 76;) all others below seventy, (pages 65, 66, 73, 77, 79.) The committee have, therefore, rejected seventy votes of Iowa sol- diers. ' As to the number of half-breeds who voted at that precinct, witnesses testify— one (page 63) that there were sixteen, one (page 67) that he recognized the names of four, and then (page 68) six, and another (page 71) ten. The evidence satisfied the committee that there were ten half-breeds, at least, who voted at that pjecinct, of whom four were made citizens by statute. They re- jected the other six votes. Nothing within the allegation was proved against any other votes. The poll of this county is thus reduced to sixty-nine votes. I * 560 CONTESTED ELECTION CASES IN CONGEESS. It was also testified (page 147) that about sixty persons voted who were not soldiers, and forty-nine of them are named as known to the witness to be voter3, (page 148.) • From fifty to sixty, and fifty-six, are named by another witness as known to him to be legal voters, (pages 148, 149.) The committee are, therefore,, of the opinion that the remaining vote of this county, after de- ducting that of the Iowa soldiers and half-breeds named, should be counted, giving to the sitting delegate sixty-two votes, and to the contestant seven. BRULE CREEK PRECINCT. The contestant, in his notice of contest, alleges (pages 2-4) that the election at this precinct was fraudulent and void, because the polls were opened in the night previous to the election, at a place not provide'd by law, and a large num- ber of votes of persons not qualified to vote there polled, and that subsequently, without opening or examining the box, the polls were again opened at 9 o'clock on the day of the election, without qualification of the judges or clerks, and the votes then received were placed in the box with those received during the night, and all were counted together. The vote returned and counted from this pre- cinct was for the sitting delegate sixty- three votes, for the contestant nine votes. The testimony of contestant to sustain this allegation is found, pages 82-112. The sitting delegate furnishes testimony in reply, (pages 152, 153, 154.) The place fixed according to law for voting was at the bouse of A. K. Phil- lips, one of the judges of the election. But it appears from the testimony (pages 84, 86, 90, 91) that the judges met at the house of one Timothy Andrews, about midnight previous to the day of the election, and there by candlelight re- ceived forty-one votes of persons who had not resided in the Territory ninety days, and some of them unnaturalized foreigners who had been in the country but a short time. All these votes were cast for the sitting delegate. The man at whose house this voting took place, and who had been in the Territory less than two months, (page 84,) was called out of bed to vote, and did vote about two o'clock in the morning. His own son was at the time acting as judge of the election. One man, while he was present, voted for another who was not present, stating his name and absence to the so-called judges. Two or three persons from the adjoining county (p. 91) were present actively engaged in distributing votes for the sitting delegate, and quieting the scruples of those who cast them; and it was openly urged that they " had better vote early, as, when the regular hour for opening the polls should arrive, there would be men present who would challenge voters, and we, who had not been here ninety days, could not vote." One man was seen to vote three times ; . twice under assumed names. Foreigners, who had not been in the country but a few months, were made to believe, by some ceremony there performed, that they thereby became naturalized citizens; and they then voted, (pp. 103, 105.) The following certificate was then given to one of them by a man by the name of Glaze, who was then present urging men to Vote : I, Ole Thompson, do declare upon oath that it is bona fide my intention to become a citi- zen of the United States, and to renounce forever all allegiance to any foreign prince, power, potentate, state, or sovereign whatsoever, and particularly to Carl XV, of whom I was last a subject. OLE THOMPSON. Subscribed and sworn to before me this 28th day of August, A. D. 1862. A. V. ECKLES, Clerk. By JOHN B. GLAZE, ^Deputy. There were forty-two votes polled in this way at the house of Timothy Andrews at dead of night, and before 2 o'clock in the morning, (p. 84.) At 9 o'clock the next morning the same judges proceeded with the same ballot-box to the house of A. R. Phillips, and there, with the same box, with these ballots CONTESTED ELECTION CASES IN CONGRESS. 561 in it, (p. 109,) polled twenty-nine other votes — making the whole number certi- fied eeventy-one. When these twenty-nine votes had been polled, and the names of the voters recorded, one of the judges insisted that the clerk of elec- tion should add the list of names of persons who had not voted while that clerk had been present, but which list was furnished to the clerk by the judges ; but the clerk refused and resigned, and another was put in his place, and the forty- two names of the voters in the night-time were added, (p. 87,) not one of whom was a legal voter. Whether the judges and clerks were sworn or not does not clearly appear. There is a certificate of their qualification appended to this poll, (p. 106 ;) but, although the proceedings from beginning to end are testified to by several eye- witnesses, no one has mentioned the fa,ct of their being sworn ; and one of the judges, when the question is put directly to him, (p. 109,) "Were the judges of election and clerks sworn at said election ?" refuses to answer. The whole tes- timony of this judge of election is so brazen-faced and unblushing that the committee give it entire: My name is Thaddeus Andrews ; I reside at Brute Creek, Cole county, Dakota Territory I was present at the election held at the Brute Creek precinct on the first day of September, 1862. I was one of the judges of election at said precinct. 1st interrogatory. Were the judges of election and clerks sworn at said election 1 (Witness refuses to answer.) The polls were opened at said election at the house of A. R. Phillips, at Brute Creek afore- said. Thay were opened at about 9 o'clock in the morning, on the first day of September, 1862. The judges and clerks were present at said election. One of the judges who was appointed by the commissioners refused to serve, and A. R. Phillips nominated Milton M. Rich, who was elected by the persons present in the house ; I do not recollect the number present. I think there were about forty votes cast during the day, after the polls were opened at 9 o'clock a. m. 2d interrogatory. Was the ballot-box opened and examined before the voting commenced, after the polls were opened at 9 o'clock a. m. on said day ? (Witness refuses to answer.) I should think there were ballots in the ballot-box before the voting commenced after the polls were opened ; there were about thirty ballots in the box when the polls were opened; I cannot tell for whom the ballots were cast, but I suppose that they were cast for William Jayne for delegate to Congress. They were cast for the south half of the northeast quarter of section No. 29, township No. 92 north, for county seat. These ballots were put in the ballot-box by some -person ; I am unable to state by whom. The ballots were put in between Sunday evening anfl 9 o'clock Monday morning ; I think about 3 o'clock Monday morning. I think they were put in at A. R. Phillips's house, but I am not sure that that was the place. I was present at the time they were put in ; there were quite a number around while this was going on. 3d interrogatory. Do you not know that those ballots were put in the ballot-box at the house of Timothy Andrews ? (Witness refuses to answer.) I cannot state whether the ballots that were in the ballot-hox when the voting commenced were all put in by one man or not. The polls were closed about 6 o'clock. After the polls were closed we commenced canvassing the votes publicly. We counted all the ballots in the ballot-box. We found that the number of ballots in the b»x did not agree with the number of names on the poll-lis.t. There were six ballots more in the box than there were names on the poll-list. Six ballots were then picked out from the top of the ballots in the box, which were destroyed ; the remainder of the ballots we then canvassed, and returned them to the office of the clerk of the board of commissioners of Cole county. The names of persons voting during the day were taken down by the clerks of the election. There are names of persons upon the poll-list who did not vote during election day. I think there are about thirty names on the list who did not vote. 4th interrogatory. How came those names on the poll-list ? (Witness refuses to answer.) One of the poll-lists was returned to the clerk of the board of commissioners. The clerks of the election were Mahlon Gore and William C. Betts ; the judges were myself, A. R. Phillips, and Milton M. Rich. THADDEUS ANDREWS. The committee are of opinion that 'it would be a disgrace to receive a return of votes from persons assuming to act as judges and guilty of such practices in H. Mis. Doc. 57 36 562 CONTESTED ELECTION CASES IN CONGRESS. office as the testimony and the foregoing unblushing confession disclose, and sub- mit whether such "judges" have or not added to their other crimes that of per- jury in taking the following v oath, which they have certified that they have taken : We do solemnly swear that we will perform the duties of judges according to law and the best of our ability ; that we will studiously endeavor to prevent fraud and deceit in conduc- ting the same. The committee, therefore, reject the entire vote thus returned from this pre- cinct. KITSON COUNTY. This is the vote commonly known as the Pembina vote. It was received at the secretary's office a few days after the canvass was completed, and was not included in the result. The following is the certificate of the vote : .St. Joseph, Dakota Territory, Office of the Register of Deeds, September 5, 1862. At an election held on the first day of September, A. D. 1 862, in the county of Kitson and Territory of Dakota, being the seventh council and representative district of said Territory, the following persons received the number of votes annexed to their respective names, to wit : For delegate to Congress, J. B. S. Todd had one hundred and twenty-five votes. For delegate to Congress, William Jayne had nineteen votes. Certified by me. CHARLES MORNEAU, Clerk of the Board of County Commissioners. Sworn to before me this 13th day of September, A. D. 1862. JOHN B. BATTIMAN, Justice of the Peace. Dakota Territory, Secretary's Office. I hereby certify that the foregoing is a true and correct copy of the original abstract re- turned to this office and now on file in my office ; and I further certify that Charles Morneau was, at the date of said returns, a register of deeds in and for the county of Kitson, and also that John Battiman was at the said date a justice of the peace in and for said county of Kitson, and that said returns were received. In testimony whereof, I have hereunto subscribed my name, and affixed the great seal of the Territory. Done at Yancton this 12th day of January, 1863. JOHN HUTCHINSON, [seal.] Secretary. The committee were of opinion that the arrival of these returns in the secre- tary's office a few days after the canvass was completed was not of itself sufficient ground for their rejection. The sitting delegate objects to the counting of this return for two reasons. First, that the vote is fraudulent and fictitious. Second, that the territory included in the precinct at which this vote was cast "is situated wholly in the Indian country ; and though within the geographical, it is, by the act of Congress organizing the Territory of Dakota, without the political limits of said Territory," (p. 5.) To sustain the allegation that the vote was fraudulent and fictitious, the sitting delegate offered no other evidence except the deposition of Joseph L. Buckman, (p. 154,) which being taken after the time for taking depositions had expired, was, for the reasons heretofore stated, excluded. The second point rests upon a mistaken construction of the following proviso in the first section of the organic act organizing the Territory : " Provided, That nothing in this act con- tained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which by treaty with any Indian tribe is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction CONTESTED ELECTION CASES IN CONGRESS. 563 of any State or Territory ; but all such territory shall be excepted out of the boundaries and form no part of the Territory of Dakota until said tribe shall signify their assent to the President of the United States to be included within said Territory." Now it is apparent, upon the reading of this proviso, that the territory which it is therein provided shall be set apart for any particular tribe of Indians, and thereby to be excepted out of the limits of the Territory, is that which is so set apart by treaty with any particular tribe, and is so excepted by the treaty itself. It does not apply to any portion of the territory upon which Indians may happen to live, but only such portions as are held by par- ticular tribes under and by virtue of treaties defining boundaries, and stipulating for exclusive jurisdiction to be exercised by the tribes holding them. No such treaty existed covering any portion of the election precinct under consideration, and therefore the vote there cast cannot for this reason be excluded. It only remains to state the result to which these conclusions have led the committee. The official canvass stated the result to be — For William Jayne. For J. B. S. Todd. 237 votes. 221 votes. Add to this Charles Mix county 62 votes. 7 votes. Add to this Kitson county 19 votes. 125 votes. 318 votes. Deduct Tancton non-residents 9 Deduct Brule" precinct 63 — 72 votes. 246 votes. This result gives to the contestant a majority of ninety-nine votes, and the com- mittee accordingly recommend the adoption of the following resolutions : Resolved, That William Jayne is not entitled to a seat in this house as a delegate from the Territory of Dakota in the 38th Congress. Resolved, That J. B. S. Todd is entitled to a seat in this house as a delegate from the Territory of Dakota in the 38th Congress. Subjoined are the views of the minority in this case : That the right to a seat in this case should be settled either upon strictly legal principles, holding each party to the law, or upon the merits, without regard to mere technicalities, and the seat awarded to the person really shown to have received the greatest number of legal votes, would seem /to be a self-evident pro- position. Yet the majority of the committee in their report do neither of these things. They confessedly depart from the requirements of the law in behalf of the contestant, while they hold the sitting delegate strictly to the law. The House at an early day decided " that William Jayne, having presented a certi- ficate, in due form of law, of his election as delegate from the Territory of Dakota to the 38th Congress, is entitled to take the oath of office and occupy a seat," &c. This decision of the House, made the 15th day of January, 1864, settled the right of the sitting member to the seat upon the strictly legal formal returns, and having been admitted, he could only be deprived of the seat by the show- ing of the contestant that the formal returns were incorrect. This he has attempted to do. At the outset the question arises, is there any law prescribing the mode of obtaining evidence in the case of contested elections of delegates from Ter- ritories ? Manifestly not, if the act of February 19, 1851, is to receive a strict construction, for it applies only in terms to the " contest of an election of any 564 CONTESTED ELECTION CASES IN CONGRESS. member of the House of Eepresentatives." That a territorial delegate has no vote, and is not, strictly speaking, a member of the House of Representatives^ is known to all. If, however, the act of February 19, 1851, is by analogy to be held as governing in the contest of a seat by a territorial delegate, the pro- visions must be complied with. That they were not complied with by the contestant in this case is admitted by the majority report, which states, " that while the statute requires the contestant to serve his notice of contest upon the sitting delegate within thirty days after the result of the election has been declared by the board of canvassers, the notice in this case was served before the result was declared." The report, however, proceeds to state that " the committee are of opinion that this was a defect which the sitting delegate could waive, and that by answering after the result had been proclaimed," &c.,' " he had waived the right," &c. Without controverting this position it is difficult to perceive why, if the contestant is to be permitted to avail himself of a notice not strictly in accordance with the statute, the sitting delegate should not have the like liberality extended to him in relation to a deposition taken on notice to the contestant, when the contestant was present listening to the examination and consenting to an adjournment for the purpose of completing it. There is, how- ever, a more serious objection to all the contestant's testimony. It is all ex parte, and taken before justices of the peace. By the 3d section of the act of Oongress> the party wishing to take testimony may apply to " any judge of any court of the United States, or to any chancellor, judge or justice of a court of record of any State, or to any mayor, recorder, or intendant of any town or city in which said officers shall reside, within the congressional district;" and by a subsequent section, the 23d, it is provided that in case no such magistrate as is by the 3d section authorized to take depositions shall reside in the con- gressional district, it shall be lawful to apply to two justices of the peace. In this instance the contestant gave notice of his intention to take testimony before the chief justice of the Territory, but subsequently went before two justices of the peace. The sitting delegate protested against the right of the justices of the peace to take the testimony, and never appeared before them. The contestant seeks to show, by testimony, that Judge Bliss, the chief justice of the Territory, resided at Sioux City, Iowa, and not within the Territory of Dar kota ; but the notice which he gave to take the testimony states : " It is my intention to examine witnesses before. Hon. P. Bliss, chief justice of Dakota Territory, the said chief justice being a resident within and for the congressional district, Territory of Dakota," thereby admitting his presence and competency to act. A copy of said notice is hereto annexed. Besides, the papers show that Judge Bliss, at the instance of contestant, issued subpoenas for witnesses, was present at the time the testimony was about to be taken, and proposed in writing to the contestant to enter upon the examination. The contestant, how- ever, preferred, contrary to law, to proceed before two justices of the peace. That Judge Bliss was in contemplation of law a resident of the Territory is manifest, from the fact that he had been in the Territory holding the courts, and was then present. The fact that his family had not come to the Territory could not make him a non-resident. The organic act required his residence in the Territory, and in accordance with it he had gone to the Territory and held his courts. It was his residence at the very time, in fact, as well as law. Will it be said that the judges of Dakota, when in the Territory, were not sufficiently domiciled there to take depositions, although they might hold courts? If Judge Bliss was not competent to take the depositions in this case by reason of his non-residence, clearly he was not competent to hold court, and all the pro- ceedings of himself and associate justices in holding courts in Dakota are coram nonjudice and void. Will the House make a decision fraught with such con- sequences 1 If not, then clearly, there being a United States judge in the Ter- CONTESTED ELECTION CASES IN CONGEESS. 565 f itory competent to take the testimony, there was no authority to take it before two justices of the peace. Again : even if Judge Bliss was disqualified, still, justices of the peace would not be authorized to act if any of the other officers named in section 3 of the act of Congress were resident in the Territory, and the papers wholly fail to show that there may not have been many such officers. All the contestant attempts to show is that there were no other officers resident of Yancton county ; non constat there may have been, as there were many such in other counties. In the double view, therefore, that Chief Justice Bliss was present, ready and competent to act, and that there may have been and were other officers in the Territory qualified to act, the taking of the testimony by the contestant before justices of the peace was not warranted by law ; and if the law is to be observed, all the testimony of the contestant must be excluded. The return from Kitson county, known as the Pembina vote, and situated wholly within the Indian country, is not a copy of " the abstract of votes given in this county," made by the clerk, with the assistance of two justices of the peace, as required by the territorial laws, ch. 32, sees. 28, 31 and 33, but a mere certificate of the clerk ; and, moreover, it was not received till after the time limited by law when returns could be received, and the canvass had been com- pleted, and, therefore, if the law is to be observed, could not be received ; and this would leave the sitting delegate entitled to his seat as proclaimed by the canvassers. But the majority of the committee admit the Pembina vote, not- withstanding it was not in accordance with law nor received within the time limited by law, and refuse to admit the testimony taken on notice and when the contestant was present, showing the Pembina returns to be fraudulent, because the sitting delegate did not take the testimony before the proper officer and within the proper time. Time is held to be immaterial by the majority, for the purpose of admitting the Pembina returns, and material for the purpose of ex- cluding the testimony to show those returns fraudulent. So the letter of the law is departed from to bring the case of a delegate within the act of Congress, to make valid the notice of contest given before the canvass was declared, to receive the testimony taken without authority before justices of the peace, and the Pembina vote not returned within the time or according to law — all these departures being for the benefit of the contestant ; but when a departure from the strict letter of the law would have admitted the testimony impeaching the Pembina vote, and been for the benefit of the sitting delegate, the letter is in- sisted upon and the testimony excluded. On what principle can such inconsist- ency be sanctioned? Without going over the voluminous ex parte testimony taken by the contestant, it fails to show, according to the majority report, that Todd received more legal votes than Jayne, exclusive of the Kitson county, or Pembina, return. Leaving out that vote which was returned — 125 for Todd, and 19 for Jayne — and making all the corrections allowed by the majority of the committee, Jayne is still elected by seven majority. The right to the seat then depends, according to the majority report, on the Pembina vote. That vote is admitted not to have been returned within the time required by law, nor is there any such return as the law requires. Shall it then be received ? If the.House decide that the arrival of these returns after the canvass was completed, and the time for their reception had by law expired, and when they are not certified as the law requires, is not a sufficient reason for their rejection, will it not also, upon the same principles of equity and justice, decide that the fact that the testimony taken by the sitting delegate to show that vote fraudulent and fictitious at a time and before a dif- ferent judge from the one specified in the law, is not a sufficient reason for its rejection? To be consistent and do justice, such must be the decision. This is a question affecting the rights of the people of Dakota, as well as the persons claiming to represent her, and they haye^right to insist that returns not made 566 CONTESTED ELECTION CASES IN CONGRESS. in accordance with their laws should be rejected, or, if received, that the testi- mony showing their invalidity should be received also. The certificate from Kitson county shows : For Todd 125 votes. ForJayne 19 " * Total 144 " What is the evidence in regard to this vote ? Fhst, the census, taken about a year previous, showing that in the whole Red river country there were of white males but fifty-one, and of these over the age of twenty-one but forty-two. Then the testimony of Joseph L. Buckman, taken March 11, 1863, before Hon. W. F. Purcell, judge of the orphans' court in the District of Columbia, on notice duly given, both parties being present at the examination, the contestant, however, under protest, and objecting to ■ the jurisdiction of Judge Purcell to take the testimony. This testimony (see pages 154, 155, and 156) shows that there were but six white persons, native-born and naturalized, present at the place of voting in Kitson county on election day, who were entitled to vote at the precinct on the day of election. The witness had been an Indian trader and postmaster at Pembina for several years ; was well acquainted, and swears that he does not think more than ten or twelve white persons were present on the day of election, and of those there were but three who were native-born citizens of the United States, and three others who claimed to be naturalized, and none who had made declaration of their intention to become citizens. He says forty-six or forty-eight votes were cast for delegate at the election ; that the excess over the number of legal voters present was cast by illegal voters, mostly half-breeds, and that there was added to the votes cast, after the close of the polls, a little over a hundred votes ; and also that Charles Morneau, who was clerk of the board of county commissioners, and sent his own certificate, and not a copy of the abstract, as required by law, to the secretary of state, was present at this election. The testimony of Buckman is unimpeached, and is corroborated by the fact of the census returns showing only forty-two white males over twenty-one years of age in the whole Red river country a short time previous ; also by the recent action of the territorial legislature of Dakota, abolishing the district as a voting precinct, on account of its being Indian country and almost wholly uninhabited by white persons, who alone, if pos- sessed of the other qualifications, are by law entitled to the right of suffrage. Can it be that the House, adhering to the letter of the law as to the time and officer before whom testimony shall be taken, when the act itself is only de- claratory, and does not forbid the taking of testimony at another time and before another officer, will exclude testimony which exposes this fraudulent and fic- titious Pembina vote, and then admit the contestant to take his seat under it ? Has not every member at all acquainted with the Red river country a general knowledge that there could be no such vote there as has been certified to ? Without this fraudulent vote the contestant has no claim to the seat, as the report of the majority admits, and not only admits this, but shows by the com- putation of the majority, as given therein, that the sitting member is entitled to retain his seat. G. W. SCOFIELD. CHARLES UPSON. In reference to the Pembina vote Mr. Dawes said : The committee also counted the Pembina vote. It was received a few days after the time required by law. This vote, according to the certificate, was 19 for Jayne and 125 for Todd. And it was on the question whether this vote should be received that there was any material difference of opinion, as I understand, among the members of the Committee of Elections. It was the opinion of a majority of the committee that it should be received and counted, and CONTESTED ELECTION CASES IN CONGRESS. 567 of the minority that it should not. The minority gave their reasons why it should not be re- ceived, They gave them in the views which they have reported ; and I have no doubt that they will enforce them. it seems now to be claimed that this vote should not be received because the return was not in conformity to the law, inasmuch as the law requires the certifying officer to certify to an abstract of the vote. Mr. Hubbard, of Iowa. I would inquire of the gentleman from Massachusetts whether there is any evidence of the votes of that county having been canvassed according to law. Mr. Dawes. I will read the certificate : "St. Joseph, Dakota Territory, "Office of the Register of Deeds, "September 5, 1862. "At an election held on the first day of September, A. D. 1862, in the county of Kitson and Territory of Dakota, being the seventh council and representative district of said Terri- tory, the following persons received the number of votes annexed to their respective names, to wit : "For delegate to Congress, J. B. S. Todd had 125 votes. " For delegate to Congress, William Jayne had 19 votes. "Certified by me." " CHARLES MORNEAU, "Clerk of the Board of County Commissioners. "Sworn to before me this 13th day of September, A. D. 1862. " JOHN B. BATTIMAN. "Justice of the Peace." " Dakota Territory, Secretary's Office. "I hereby certify that the foregoing is a true and correct copy of the original abstract re- turned to this office and now on file in my office ; and I further certify that' Charles Morneau was, at the date of said returns, a register of deeds in and for the county of Kitson, and also that John Battiman was at the said date a justice of the peace in and for said county of Kit- son, and that said returns were received. "In testimony whereof, I have hereunto subscribed my name and affixed the great seal of r, _ -| the Territory. '-■."-' " Done at Yancton this 12th day of January, 1863. JOHN HUTCHINSON, Secretary." I was about to say this, that the objection which seems to be raised for the first time is that this certificate does not set forth that this man took with him two justices of the peace to ex- amine these votes, and then to make an abstract of them. It does not say that he took two justices of the peace, but the law presumes that every officer conforms to the law until the contrary is shown. The law does not say that that should be shown in the certificate ; but the law does say that he shall certify an abstract. I think the objection was that instead of certifying the whole of the vote he ought to have certified an abstract of the vote. I think it may be claimed that the two justices of the peace were present, for every man will agree that the law presumes an officer has discharged his -duty until the contrary is shown. The question is whether the full vote is as good as an abstract. The committee have said over and over again, and my learned friends on this committee have joined in the report, that a certificate is as good without an abstract as with it. It seems to me that that decision is founded in good sense. We have the number of votes, which is the fact sought for. It is as good in one form as another, so far as the committee is concerned. I do not propose to go through with a criticism of the whole of the minority report until it has been supported by the gentleman who made it. ' There was another objection in the report of the minority to the reception of this vote; and that was that it was fraudulent. They depend on the testimony of a witness by the name of Buck- man. The majority of the committee rejected the testimony of this man Buckman, as it has ascertained that it was taken in this city some considerable time after the time prescribed by the law for taking testimony in this case. In the Missouri election case passed on this morning the House directed the committee to exclude testimony taken in this city after the time had expired according to the statute for taking testimony. The question was presented to the committee whether they would reject the testimony of Captain Constable in the case of Knox vs. Blair, which the House ordered to be excluded, and receive this deposition taken under precisely the same circumstances. The committee came to the conclusion that they would treat both depositions alike. The gentlemen who have signed the minority report agreed that the deposition of Captain Constable should be excluded, and for the same reason the committee think that this deposition of Mr. Buckman should be excluded. Excepting this, there was nothing before the committee that raised any suspicion of the validity of this certificate, except the suspicion of two or three years ago, when Pembina was in Minnesota, that there was a good deal of fraud there. I always thought there was myself. But the reason that induced the committee to reject the testimony of this witness was the same 568 CONTESTED ELECTION CASES IN CONGBESS. as that which operated to the exclusion of tesf imony taken in precisely the same way in another case, that of Knox vs. Blair. The result of this election is properly stated in the report of the majority of the committee — for Todd, 345 votes ; for Jayne, 246 votes ; making a majority of 99 for Todd. If the deposition of Buckman be received and taken to be true, and if the Pem- bina vote be rejected, Jayne would have received a majority of 7 votes according to that cal- culation of the committee. I think the case is narrowed down to the question whether the deposition of Buckman shall be received or not. Beyond that is the question of credibility, upon which the committee thought the evidence was against the credibility of Buckman. Mr. Upson, of the Committee of Elections, remarked as follows : I believe the chairman of the committee in making his estimates, outside of Kitson county, has proceeded, on the whole, with fairness and impartiality, and I will take up their report only as to the Pembina vote. There appears to me to be an absurdity and inconsistency on the part of the majority of the committee in admitting evidence taken on behalf of the contestant not in accordance with law, and rejecting testimony taken on the part of the sitting member because it was not tech- nically in compliance, as to time, with the law of 1851. The testimony on the part of the' contestant was taken before two justices of the peace, which, as I will show, was in violation of the law of 1851. The gentleman from Wisconsin, [Mr. Brown,] I believe, holds that the law of 1851 is not strictly applicable to the election of delegates from the Territories, and admits that the depositions taken by the contestant are outside of and independent of that law, and in accordance with the practice prior to its adop- tion; but he nevertheless excludes a portion of the evidence of the sitting member by unit- ing in the report of the majority. I have said, however, that this testimony on the part of the contestant was taken before two justices of the peace, and in violation of the provisions of the act of /851. Now, under that law, before evidence can be taken before two justices of the peace, it must first be shown that there are no other officers entitled to take such deposi- tions in the Territory. The law of 1851, in the third section thereof, designates as the proper officers before whom to take depositions, in the first instance, "any chancellor, judge, or jus- tice of any court of record, or any mayor, recorder, or intendant of any town or city." Now, the contestant does not produce a particle of proof that there were none of these officers in the Territory at that time. The law to which I refer, as to justices of the peace, is as follows : " Sec. 10. When no such magistrate as is by the third section of this act authorized to take depositions shall reside in the congressional district from which the election is proposed to be contested, it shall be lawful for either party to make application to any two justices of the peace residing within the said district, who are hereby authorized to receive such appli- cation and jointly to proceed upon it in the manner hereinbefore directed." Making it a preliminary requisite that the party must show non-residence or non-existence in the Territory of the other officers before whom the depositions are first to be taken. This objection was made by the sitting member at the time that these depositions were taken. He appeared in the first instance and insisted on his legal right to have depositions taken before those officers first specified in the law to be called upon, and this objection appears in the record. The whole evidence, also, in this case on the part of the contestant is taken ex parte, without any appearance on the part of the sitting member, except to enter his objection to the whole proceeding as illegal, and is without the cross-examination of a single witness. I ask what may not be proved under such circumstances 1 I am not surprised at some of the evidence that has been brought in here against the sitting delegate, and made the ground of personal assault upon him, because the witnesses were sworn and testified without any cross- examination. The contestant could select his own witnesses, ask his own questions, and take down as much or as little of the answers as he pleased. There is no one to show how much has been taken down and how much omitted. There was no cross-examination to sift the conscience of the witnesses. Further than that, many of the facts contained in these depositions are not referred to in any of the specifications in the contestant's notice. The sitting delegate never had an op- portunity to see these depositions or know what they contained until he saw them in print in the miscellaneous documents in this case, published by order of the House. His own depositions were taken in ignorance of what was contained in the testimony of the contest- ant, and he has Consequently not examined some of the witnesses in reference to some things, which he might and probably would otherwise have done, in order to protect his own reputa- tion against some statements made by contestant's witnesses. On June 13, 1864, the House adopted the first resolution — yeas 91, nays 1. The second resolution was then agreed to — yeas 64, nays 31. NoTE.—The debate will be found in volume 52, pages 2852-2861. For report: Mr. Dawes, page 2861 ; Mr. Farnsworth, page 2882. Against report : Mr. Scofield, pages 2864, 2882; Mr. Upson, page 2886. CONTESTED ELECTION CASES IN CONGRESS. 569 THIRTY-EIGHTH CONGRESS, FIRST SESSION. Lindsay vs. Scott, of Missouri. The contestant's principal allegation in this case was that disloyal men voted for the sitting member in contravention 'of the law of the State. The committee, upon examination of the specific charges, held that the sitting member received a majority of the legal votes cast. The House agreed to the report. IN THE HOUSE OF REPRESENTATIVES, June 20, 1864. Mr. Upson, from the Committee of Elections, made the following report : The election in contest was held on the third day of August, A. D. 1863, under and in pursuance of a proclamation of the governor of Missouri, calling a special election in the third district of Missouri, to fill the vacancy caused by the decease of the Hon. John W. Noell, the representative elect from said district to the 38th Congress. At said election the said contestant, James Lindsay, the sitting member, John Gr. Scott, and one Joseph Bogy were candidates to fill said vacancy, and on the return and canvass of the votes the certificate of election was given to John Gr. Scott, the sitting member. The following certified abstract, taken from page 9 of the printed evidence in the case, (Mis. Doc. No. 43,) shows the several counties composing said dis- trict, and the number of votes polled in each county at said election, and returned to the secretary of state, and included in the final canvass : An abstract of votes polled in the several counties comprising the third congressional district of the State of Missouri, at a special election begun and held in said district on Monday, the 3d day of August, A. D. 1863, for the election of a member of tbe House of Repre- sentatives of the 38th Congress of the United States from said third district, to fill the vacancy caused by the death of the honorable John W. Noell, late a member from said district. Counties. John G. Scott. James Lindsay. Joseph Bogy. Thomas Scott. 32 votes 500 212 561 89 385 38 593 161 197 " 315 3 6 466 " 64 votes 262 119 votes 358 164 " 224 154 Scott . . 5 votes. 103 215 217 519 148 42 99 686 72 27 7 6 8 Dent 18 2 1 United States of America, State of Missouri, ss : I, Mordecai Oliver, secretary of state of the State of Missouri, hereby certify that the above and foregoing is a full, true, and correct statement of the votes cast at the special election held in the several counties composing the thn-d congressional district in this State, for the several candidates for a seat in the 38th Congress of the United States, to fill the 570 CONTESTED ELECTION CASES IN CONGRESS. vacancy caused by the death of the late honorable John W. Noell, on the 3d day of Augusti A. D. 1863, as fully as the same appears from the abstracts of said votes now on file in this office. • , Tseal 1 * u wrtness whereof, I have hereunto set my hand and affixed the seal of office. L " J Done at office, in the city of Jefferson, this 27th day of November, A. D. 1863. M. OLIVER, Secretary of State. The aggregate vote returned according to this abstract is 7,075, of which Scott received 3,559, and Lindsay 3,070, giving Scott a plurality of 489 votes. The grounds of contest specified by the contestant will be found set forth at length in his notice on pages 1, 2. 3 and 4 of the printed case, miscellaneous document No. 43. Among other things, the contestant insists, in substance, that, at various townships and election precincts in the several counties in the district, the voters were not required to take, and did not take, the oath pre- scribed by the convention ordinance of the State ; and that, in numerous /in- stances, neither the judges nor clerks of the election were sworn, as required by said ordinance, before entering upon their duties as such judges or clerks, and therefore that the votes .cast in such townships and at such election precincts were illegal, and should be rejected. With the history of Missouri since the breaking out of the rebellion, and the proceedings of her State convention, called in consequence of the civil troubles and dissensions incident to the same, this house is already familiar ; but for the purpose of illustrating the legal point raised by the contestant, it is proper to lay before the House that part of the convention ordinance which is relied upon by the contestant in support of his position. The sections referred to are as follows : AN ORDINANCE defining the qualifications of voters and civil officers in this State. Me it ordained by the people of the Stale of Missouri in convention assembled, as follows: Section 1. No person shall vote at any election to be hereafter held in this State, under or in pursuance of the constitution and laws thereof, whether State, county, township, or municipal, who shall not, in addition to possessing the qualifications already prescribed for electors, previously take an oath in form as follows, namely : "I, , do solemnly swear (or affirm, as the case may be) that I will support, protect, and defend the Constitution of the United States, and the constitution 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 opposers thereof, or of the provisional government of the State of Missouri, any ordinance, law or resolution of any State conven- tion or. legislature, or any order or organization, secret or otherwise, to the contrary notwith- standing ; 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 whatever. And I do further solemnly swear (or affirm) that I have not, since the 17th day of December, A. D. 1861, wilfully taken up arms or levied war against the United States, or against the provisional government of the State of Missouri. So help me God." Sec. 5. That judges and clerks of all elections held under the laws of this State shall, in addition to taking the oath required by existing laws, take the further oath that they will not record, nor permit to be recorded, the name of any voter who has not first taken the oath required to be taken by the first section of this ordinance. Sec. 6. The general assembly of this State may at any time repeal this ordinance, or any part thereof. . Adopted June 10, A. D. 1862. The "qualifications prescribed for electors," referred to in the first section of said ordinance, and to which the qualifications prescribed in the ordinance were in addition, are as follows : The constitution of the State of Missouri, in Article III, section 10, fixes the qualifications of voters as follows : " Section 10. Every free white male citizen of the United States who may have attained to the age of twenty-one years, and who shall have resided in this State one year before an election, the last three months whereof shall have been in the county or district in which he offers to vote, shall be deemed a qualified elector of all elective officers." CONTESTED ELECTION CASES IN CONGRESS. 571 It is apparent that .the qualifications prescribed by the ordinance of the con- vention were intended to prevent, as far as possible, disloyal men from exer- cising the elective franchise, and to declare them disqualified to vote, and also to' enjoin and enforce greater care and obligation upon judges and clerks of election (who might otherwise, in some cases, be disposed to wink at or silently permit a violation of the provisions of the ordinance in this respect) to see that the ordinance was strictly complied with. While it may be urged, with much plausibility and force, that if a person otherwise qualified to vote, though in fact notoriously disloyal, should voluntarily take the convention oath, and thereupon offer hiB vote, the judges, by the strict letter of the law, could not arbitrarily reject or refuse to receive his vote, yet it is apparent that the true spirit and intent of the ordinance is to disfranchise and prohibit all rebels and rebel sympathizers from voting, and to make their votes, if cast, wholly illegal. No one who did not take the oath truthfully could be legally entitled to the benefits of the ordinance in this respect. Taking the oath formally but fraudu- lently and not truthfully, would not legalize the vote, nor make the affiant a loyal elector. A neglect or refusal to take the oath disqualified the voter by the express language of the ordinance ; and hence, wherever it appears that the election was conducted by the judges without having the oath administered to the voters, or wherever the voters were permitted to vote without having first taken the oath, the committee have felt bound, by the express provisions of the ordi- nance, to reject all such votes as illegal and void, no matter for whom they were cast. The townships or election precincts where voting of this kind appears from the evidence to have been permitted we will now proceed to notice. In Iron county, in the township of Kaolin, the oath prescribed by the con- vention ordinance was neither taken by the voters nor by the judges of election, as is shown by the testimony of William Quisenberry, one of the judges of election, page 12. The vote of this township, as returned and canvassed, is shown in the testimony of David Humphrey, on page 24, to have been, for Lindsay 2, for Scott 59. In Wayne county, at Cedar Creek precinct, the convention oath was neither administered to the voters nor to the clerks of election. — (See testimony of P. B. Short, page 28, who was one of the judges of election.) He says, on page 29, on cross-examination, that he tried to have the voters take the convention oath, but that the other judges thought it was of no use. He states the vote to have been 17 for Lindsay, and 36 for Scott, which is objected to by the incumbent as not the best evidence. In Madison county, Castor township, neither the voters, judges of election, nor clerks took the convention oath. — (See testimony of George Davis, one of the judges, page 100.) The number of votes polled here is shown on page 109, and also copy of poll-book is given on page 111 — 16 votes for Lindsay, 20 for Scott. In Concord township, Washington county, the convention oath was not administered to the voters, judges, or clerks, but an oath fixed up, dictated by one A. K. Eaton. — (See testimony of A. Gr. Bush, page 50, and of A. R. Eaton, pages 162 and 163, showing a form of oath different from the one prescribed in the convention ordinance, and how it was gotten up, and by whom.) The vote is given in testimony of Moses Brooks, on page 58 — 1 for Lindsay, 133 for Scott. In Liberty township, in same county, the ordinance oath was not adminis- tered to voters, judges, or clerks ; but a kind of oath differing from that was prepared there, and administered. — (See testimony of J. B. Johnson, page 53.) The vote is given in testimony of Moses Brooks, on page 58 — 7 for Lindsay, 63 for Scott. 572 CONTESTED ELECTION CASES IN CONGRESS. In Madison county, Polk township, it is shown by the-testimony of Wilson Bonn, pages 105 and 106, that seven persons voted without taking the oath. It is not shown for whom they voted, except in one instance one of them voted for Scott. This should be rejected. The other six were illegal, but it is impos- sible to distinguish them from the other votes cast here. By an act of the general assembly of the State of Missouri, approved March 23, 1863, (Laws of Missouri, 1863, page 17,) certain amendments were made to the laws of that State in regard to elections, and among other things ordering the elections to be by ballot, and to continue for one day only. It also provided that the judges of election should " cause to be placed on each ballot the num- ber corresponding with the number of the voter offering the same," and that "no 'ballot not numbered shall be counted." The contestant, in his notice, alleges that, in several of the townships and election precincts, this provision of the law was wholly disregarded, and therefore that the votes so cast should be rejected. The provisions of the statute in this respect are clear and explicit, and, in the opinion of the committee, expressly prohibit the counting of any such votes by the judges of election. The following townships and precincts appear to be open to this objection : In Benton township, Wayne county, the ballots were not numbered, but were torn up, most of them, and the rest left on the bench where they were voted. — (See testimony of Josephus Moore, pages 30 and 31.) According to his testimony (which is objected to by contestant as not the best evidence of the fact) the vote was for Lindsay, none ; for Scott, 35. In German township, Madison county, the ballots were not numbered. — (See testimony of B. J. Allbright, pages 106 and 107, which also gives the number of votes cast. See also copy of poll-book, on pages 115 and 116 — for Lindsay, 1; Scott, 68.) In Punjaub township, St. Genevieve county, also, the ballots were not num- bered. — (See testimony of Charles C. Rozier, pages 116 and 117, giving also the vote ; and see also, for the number of votes, page 122 — Lindsay, 19 ; Scott, 40.) In Cape Girardeau county the votes of company B and company C, of the 29th regiment of Missouri volunteers, was regularly returned to the office of the county clerk of said county within the twenty days allowed by law, the election being held on the 3d of August, 1863, and said returns having been made on> the 22d day of said August. The clerk certifies (see page 44) that he did not include them in the abstract of votes he certified to the secretary of state, because the vote appeared to have been taken viva voce, and he was uncertain as to the law in that respect ; but he adds that if that mode of voting was according to law,, that then these votes should be counted. It will be seen by section 10 of "An ordinance to enable citizens of this State in the military service of the United States, or of the State of Missouri, to vote," adopted June 12, 1863, by the Missouri State convention, that it provided that " the votes given at such company elections shall be given viva voce, or by tickets handed to the judges," &c. ; and by section 9 of the same ordinance, twenty days after the election are allowed the clerk of the court within which to examine and cast up the votes, and these votes were returned to him before the expiration of that time. The only objection raised to these votes by the sitting member is that they were, as he alleges, returned one day too late, and that the vote was given viva voce. We have seen that the vote is not legally liable to either of these objections, the return having been made in time, and the vote being taken accbrding to law. The vote was 37 for Lindsay and 1 for Scott, and the com- mittee consider that these votes should properly and legally be added to the aggregate vote of the respective parties for whom they were cast. CONTESTED ELECTION CASES IN CONGRESS. 573 In addition to the foregoing townships, the contestant also claims, from the evidence on pages 10, 11, and 12, that the vote of Iron township, in Iron county, was illegal because the ballots were destroyed; but as it is shown that they were regularly numbered and counted, and the vote indorsed on the poll-books before the destruction of the ballots, there seems to be no good* ground for rejecting the votes here cast. The contestant claims that the vote of Belleview (or Caledonia) township was illegal, for the reason that the ordinance oath was not administered to the judges or clerks of the election ; but as the vote of the township is not given in the testimony, it was not thought necessary to consider the objection. The vote of Old Mines (or Union) township is claimed to have been certified without authority. The evidence on this point is very defective, and the sitting member also objects that the vote of this town is not covered by contestant's notice. The evidence is insuflicient to reject the vote under the circum- stances. — (See pages 55 to 58, and 67 to 69.) The vote of Dent station or precinct, in St. Frangois county, is also claimed to be illegal, on the ground that the clerks did not take the oath prescribed by the 5th section of the ordinance. All the evidence is the testimony of William Dent, on pages 69 and 70, and it is too uncertain and indefinite to sustain the objection, even if it were a sufficient ground for rejecting the vote. Contestant also claims that in St. Genevieve county, at the court-house precinct, two of the judges of election were disloyal men ; but the evidence he adduces to support it is insuflicient to justify the committee in taking any action upon it, and the incumbent also objects that there is nothing in the specifications in contestant's notice to which it can apply. Contestant also alleges and insists that in St. Frangois county eighty disloyal persons voted for the sitting member, and also that in Perry county and Missis- sippi county disloyal persons voted for the sitting member. The majority of the committee, considering the evidence furnished by contestant on this point defective'and insuflicient, do not feel authorized by the proofs to reject the votes so objected to in these counties, and therefore allow the returns of votes to stand as made. The sitting member has raised numerous objections to the sufficiency of the allegations in contestant's notice, both as to matters of form and substance, and to the admission of testimony under the specifications, some of which are obviously informal and frivolous, but the committee have not deemed it important to examine or decide the points thus made, or to consider the objections raised by the sitting member to some of the votes cast for contestant, as the conclu- sion to which the committee have come on the case made by the contestant ren- ders it unnecessary. After rejecting all votes illegally cast for either party, so far as contestant's evidence satisfactorily shows, the committee still find a small majority of votes in favor of the sitting member. The following statement will show the votes rejected, but some of the committee are not prepared to reject votes where the ballots were not numbered : Lindsay. Scott. Kaolin 2 59 Cedar Creek 17 36 Benton 35 Castor 16 20 German 1 68 Concord : 1 "3 Liberty - 7 63 Punjaub 19 40 Polk - ° * 63 455 574 CONTESTED ELECTION CASES IN CONGRESS. Vote for Lindsay 3, 070 Deduct * 63 3, 007 Vote of companies B and F for Lindsay 37 Total for Lindsay , 3 > 044 Vote for Scott '-• 3 > 559 Deduct 455 3,104 Vote of companies B and F for Scott 1 Total for Scott 3, 105 Total for Lindsay 3, 044 Majority for Scott ' 61 The committee therefore recommend the adoption of the following resolution : .Resolved, That John G. Scott is entitled to retain his seat in this house as a representative om the third congressional district of Missouri. The House agreed to this report, without debate or division, June 24, 1864. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Kline vs. Myers, of Pennsylvania. The contestant, failing to substantiate his charges, asked for a recount of the ballots. The committee held that such an application must be founded upon proof sufficient to raise a presumption of fraud or irregularity, and should not be granted upon the suggestion of error. The House adopted the report. IN THE HOUSE OF REPRESENTATIVES, June 22, 1864. Mr. Scofield, from the Committee of Elections, made the following report : The contestant, by his own acknowledgment, has failed to substantiate the specifications or charges contained in his notice of contest by any evidence he has been able to lay before the committee, and it is therefore unnecessary to make any statement of the faets in the case. He, however, furnishes satisfactory evi- dence that he had made an unsuccessful /effort to procure a recount of the ballots within the sixty days allowed for the taking of depositions, and before the ofii- cers selected for that purpose. And upon his showing this fact, and upon his further suggestion that the result of a recount might- possibly differ, from the first, he bases an application for an order from this house to send for the boxes and recount the votes. The committee were of opinion that such an application should be founded upon some proof, sufficient, at least, to raise a presumption of mistake, irregu- larity, or fraud in the original count, and ought not to be granted upon the mere suggestion of possible error. The contestant failed to furnish such proof. On CONTESTED ELECTION CASES IN CONGEESS. 575 the contrary, so far as appeared by the evidence presented to the committee, the election was conducted with perfect good order and fairness throughout the day, and at the close the voteB were carefully and accurately counted, the officers par- ticipating therein being nearly equally divided in their political alliances. The list of voters, tally papers and returns, were properly made out and disposed of according to law. There is nowhere in the evidence a reasonable suspicion of wrong. To adopt a rule that the ballot-boxes should be opened upon the mere request of the defeated candidate would occasion more fraud than it could pos- sibly expose. The number of ballot-boxes in each congressional district is seldom less than fifty, and often more than two hundred. They are usually left in the care of a magistrate or some township officer, by whom they are de- posited in no safer place than an upper shelf in a public office. The opportu- nities of tampering with the boxes thus scattered through the district would be abundant ; and if it was known in advance that a second count could be had with- out discrediting the first, the temptation to do so would be strong. It makes no difference in settling the rule ,that in this particular case the votes had been carefully guarded by the mayor and recorder, under a special law for the city of Philadelphia. That fact would only strengthen the confidence in the result of a recount in this case, but does not show the propriety of establishing a general rule authorizing a recount whenever asked. It should be remembered that the fact sought is not what the ballot-boxes contain six months or a year after the election, but what they did contain after the last vote was deposited on the day of election. Certainly an impartial, accurate and public count, then, by the sworn officers of the law, would be better evidence of that fact than any subsequent count not more impartial and not presumed to be more accurate than the first, and after boxes had been long exposed to the tampering of dishonest partisans. The adoption of such a practice would be equivalent to setting aside the first count altogether, and it ought on that principle to be dispensed with, and the ballots sent to this house instead of certificates. The rule adopted by the committee is in accordance with the universal prac- tice of courts of justice, where a new trial or a rehearing is never granted except upon proof of probable error in the first, in accordance with the rulings in sev- eral contested election cases decided in the courts of the State from which this contest comes, and believed not to be in conflict with any precedent of this house. The committee, therefore, recommend the adoption of the following resolu- tions : Resolved, That John Kline is not entitled to a seat in this house as a. representative in the 38th Congress from the third congressional district of Pennsylvania. Resolved, That Leonard Myers is entitled to the seat now occupied by him as a repre- sentative in the 38th Congress from the third congressional district of Pennsylvania. When the report in this case was submitted, Mr. Dawes remarked as follows : Mr. Dawes. I do not concur with the majority of the committee in the ruling by which the contestant in this case was denied process to summon witnesses to prove certain allega- tions in his notice of contest. I am of opinion that when a party has conformed his allega- tions to the statute he is entitled, as of right, to the production of any legal testimony that will tend to prove such allegations ; and that neither the law nor usage of the House requires of him to first show probable cause to believe that his allegation is true before he can have such process as will produce the evidence to prove it so. Whether I should utimately concur with the committee in the final conclusion to which they have arrived would depend, of course, upon the character of such testimony when produced. Mr. Ganson. I desire to say that I concur fully with the chairman of the Committee of Elections in the views he has just expressed, and I hope the House will sustain him when they are called upon to act in this case. The House adopted the resolutions reported by the committee without divis- ion, June 24, 1864. Note. — The debate in this case will be found in vol. 53, pages 3179, 3242. 576 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Cakrigan vs. Thayer. The contestant asked for authority to summon witnesses and the hallot-boxes for exami- nation by the committee, the ground being that these witnesses failed to obey a subpoena duces tecum issued by two justices of the peace. The committee held that as the law was clear that these justices of the peace had no juris- diction* there being resident in the district three judges of the court of common pleas, the contestant was not entitled to the relief asked for, he having taken no legal steps to procure the testimony. The House sustained the report. IN THE HOUSE OF REPRESENTATIVES, June 22, 1864. Mr. Dawes, from the Committee of Elections, made the following report : The notice, answer, and accompanying evidence are contained in Mis. Doe* No. 17. At the hearing, the contestant made application to the committee for authority from the House to summon the mayor and recorder of Philadelphia, the legal custodians of the ballot-boxes of a portion of this district, to bring with them for examination the ballot-boxes of the several precincts of the district, situate in the city of Philadelphia, either before the committee itself or some magistrate authorized to take the testimony. The ground of this application was stated to be the failure of those witnesses to obey a subpoena duces tecum, issued by two justices of the peace, during the time limited by the statute of 1851 for taking testimony in this case, and requiring them to appear before said magistrates at an appointed time, bringing with them for examination; said ballot-boxes. By the statute of 1851, sec. 3, (Brightly's Dig., p. 254,) the officers authorized to issue subpoenas and examine witnesses are named. They are " any judge of any court of the United States, or any chancellor, judge or justice of a court of record of any State, or any mayor, recorder or intendant of any town or city, which said officer shall reside within the congressional district in which said contested election was held." By the ninth section of the same act it is pro- vided that "when no such magistrate as is by the third .section of this act authorized to take depositions shall reside in the congressional district from which the election is proposed to be contested* it shall be lawful for either party to make application to any two justices of the peace residing within the said district, who are hereby authorized to receive such application and jointly to proceed upon it in the manner hereinbefore directed." It will be seen that two justices of the peace have jurisdiction and authority only when there are none of the magistrates mentioned in the third section resident in the district. When any one of those magistrates resides in the dis- trict the two justices can do nothing. Now it appeared that there were resident in this district, during the whole time fixed by the statute for taking testimony in this case, three judges of the court of common pleas of the State of Pennsyl- vania, a court of record. The two justices of the peace had therefore no juris- diction or authority in the premises, and their subpoena was therefore only so much blank paper, which no one was bound to obey. It follows that the contestant had taken no legal steps to procure this testi- mony within the time fixed by law. The contestant showed no good reason for this omission, and while some of the committee were of opinion, for the reasons: stated in the report in the case of Kline vs. Myers; that the contestant was not entitled to this testimony without first showing some ground of suspicion that CONTESTED ELECTION CASES IN CONGRESS. , 577 the return was not correct, all of the committee were of opinion that, for the reason heretofore stated, the contestant having taken no legal steps to procure this testimony, and showing no good reason for the omission, he is not entitled to the relief prayed for. The application was therefore denied. The contestant thereupon, stating that without this testimony he had no evidence sufficient to entitle him to a report in his favor, submitted to an adverse report. The com- mittee accordingly recommend t the adoption of the following resolutions : Resolved, That Charles W. Carrigan is not entitled to a seat in this house as a representa- tive in the 38th Congress from the fifth congressional district in Pennsylvania. Resolved. That M. Russell Thayer is entitled to a seat in this house as a representative in the 38th Congress from the fifth congressional district in Pennsylvania. The House adopted the report without debate or division, June 24, 1864. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Segar, of Virginia. A small part only of the voters of the district participated in the election, and the claim to a seat was denied. IN THE HOUSE OF REPRESENTATIVES, January 25, 1864. Mr. Dawes, from the Committee of Elections, made the following report : That under the new apportionment, the State of Virginia was entitled, pre- vious to the separation of West Virginia, to eleven representatives ; and the legislature of the State assembled at Wheeling, at the session commencing De- cember, 1862, which was also previous to the separation, passed an act approved January 30, 1863, (Session Laws, 1862-3, page 32,) districting the State in conformity to the United States statute, (Statutes at Large, 572.) The first dis- trict, in which Mr. Segar claims to have been elected, is composed of the follow- ing counties, viz: Accomac, Northampton, Northumberland, Westmoreland, Eichmond, Essex, Lancaster, Middlesex, King and Queen, King William, New Kent, Gloucester, Matthews, York, James City, Elizabeth City, Warwick, Charles City, King George, and Caroline. The election was held on the fourth Thursday of May, 1863, and a certificate of election, in substantial conformity with the laws of Virginia as amended by the act of January 31, 1862, (Session Laws, 1861, chapter 44, page 40,) was furnished Mr. Segar by the officer required by that statute to certify an election of representative in Congress. This certificate accompanies this report. Mr. Segar claimed that having presented a certificate in conformity to the laws of Virginia, he is now entitled to be sworn in, and to occupy the seat as a repre- sentative till some one else appears showing a better title to it. But the com- mittee were of opinion that they should inquire into and report the facts con- cerning this election and their conclusion thereon. The following statements, made by Mr. Segar himself to the committee with great candor and frankness, are believed to be substantially correct. The polls were opened on the day of election fixed by law, at all the precincts in Acco- mac, Northampton, and Elizabeth City, and at one precinct in York, at which it is believed that a few, perhaps ten or twelve votes, were cast by residents of Warwick coming over from that county in accordance with a special provision of the laws of Virginia. The exact number of votes cast at these several pre- TT m;= TW hi — or, 578 CONTESTED ELECTION CASES IN CONGEESS. cincts where polls were actually opened, the committee could not ascertain with exact precision. They were, however, nearly as follows — certainly not exceed- ing this number: In Accomac .■ 1> 120 Northampton 305 Elizabeth City and York < 242 Total number of votes : 1, 667 Of these, Mr. Segar received about thirteen hundred votes. There was no election held elsewhere in the district than in the counties above mentioned. All, or nearly all, the remainder of the district was in the armed occupation of the rebels. If any portion of it except the above-named counties was outside of the confederate lines, it was so near the enemy as to practically render the unrestrained exercise of the elective franchise by Union men an impossibility. And therefore the case may be treated as one where, in a district containing twenty counties, polls were opened in four of them, and sixteen of them were under rebel control. The committee sought to ascertain the relative proportion of voters in these four counties. The population of the whole district in 1860 was as follows : Population of the first district, I860. Counties, Accomac Northampton Elizabeth City York Total in the counties voting Northumberland Westmoreland Eichrnond Essex Lancaster Middlesex King and Queen King William New Kent Gloucester „ . . * Matthews James City Warwick Charles City King George Caroline Total in counties not voting Total in the district White males. Total whites. 5,314 1,493 1,755 1,210 9,772 1,873 1,721 1,832 1,626 1,009 969 1,842 1,284 1,093 2,301 ,1,831 1,088 340 931 1,161 3,340 24, 241 34, 013 10,661 2,998 3,180 2,342 19, 181 3,870 3,387 3,570 3,296 1,981 1,863 3,801 2,589 2,146 4,517 3,865 2,167 662 1,806 2,510 6,948 48, 978 68, 159 Blacks. 7,925 4,834 2,618 2,607 17,984 Aggregate. 18,586 7,832 5,798 4,949 37, 165 3,661 4,895 3,286 7,173 3,170 2,501 6,527 5,941 3,738 6,439 3,226 3,631 1,078 3,803 4,061 11,561 74, 691 7,531 8,282 6,856 10, 469 5,151 4,364 10, 328 8,530 5,884 10, 956 7,091 5,798 1,740 5,609 6,571 18, 509 123, 669 92,675 160, 834 There was, of course, no such number of inhabitants in this district at the time of this election as the census of 1860 discloses in this table. Bat it is fair to presume that the diminution of population consequent, upon the rebellion has been about the same in all parts of the district, and that the Union men in* one portion bear about the same ratio to the whole that they do in any other. This table, then, affords the data from which to determine how general has been CONTESTED ELECTION CASES IN CONGRESS. 57S the expression at the polls in this election. From this it appears that a little more than one-fourth (9,772 out of 34,013) of the white male inhabitants oi the district, and a little less than one-fourth of the entire population (37,16S out of 160,834,) and that after deducting from this number two-fifths of the slaves, did not participate at all in this election. Taking the ratio of loyal voters in the counties that did not vote to be the same as in those that did, i< would appear that while about 1,700 (of which Mr. Segar received about 1,300) votes were cast, there were in the district of loyal men who did not vote about 5,100. It is true that the legality of an election does not necessarily depend upon the relative number of loyal voters who attend the polls and of those who stay away. If all are at liberty to vote, those who stay away must always be considered as acquiescing in the action of those who do not. But acquiescence implies liberty to protest. If one stays away because he could not go, it is absurd to say that he stays away because he acquiesces. "When a man is forcibly silent because his mouth is stopped, nothing can be taken against him for not speaking. If, then, 5,000 Union men have been kept from the polls by the arms of the rebels, it cannot be said that they acquiesce in the choice made .by 1,700 who were at liberty to go. It cannot be known, therefore, by the proceedings on election day, that Mr. Segar was the choice of the legal voters of the district. He might have been and he might not have been. The com- mittee have no evidence that, had all been permitted to vote, he would not have been such choice, nor have they that he would. Upon this point if is im- possible to know, for less than one-fourth of the voters were permitted to speak. The question is, upon this state of facts presented, whether, upon any known principle or precedent, Mr. Segar can be admitted to this, seat as the legally chosen representative of this district. All principle seems against it. By no process of reasoning can the committee infer from what was done that Mr. Segar is the choice of the district ; and it is upon no other base that a right to a seat here can at any time rest. And precedent is equally against it. In the reported cases during the last Congress the Committee of Elections and the House had occasion frequently to pass upon this very question. And the prin- ciples there laid down by the committee, and sustained in every instance by the House, both when reporting in favor of a right to the seat, as in the cases of Clements, from Tennessee, and Flanders and Hahn, from Louisiana, and when reporting adversely, as in the cases of Upton, Segar, and McKenzie, from Vir- ginia, and Hawkins, from Tennessee, govern this case. Each of these_ cases was determined upon the facts peculiar to the case. But in them all it was recognized as a rule that where the vote actually polled was such a minority of the .whole vote'that it could not be determined that the person selected by that minority was the choice of the whole district, and the absent majority were not voluntarily staying away from the polls, but were kept away by force, then no such selection thus made could be treated as an election. The committee deem this a wise rule, and adhere to it in the present case. They therefore recommend the adoption of the following resolution : Resolved, That Joseph Segar is not entitled to a seat in this house as a representative in the thirty-eighth Congress from the first district in Virginia. The report was agreed to, (May 17, 1864)— yeas 94, nays 23. Note.— The debate, which was brief, occurs in vol. 52, -p&geJlZJ 1. 580 CONTESTED ELECTION CASES IN CONGRESS. THIRTY-EIGHTH CONGRESS, FIRST SESSION. Field, of Louisiana. The State not having been divided into congressional districts under the existing apportion- ment, and the election not being a free one, owing to military interference, it was held to be invalid. IN THE HOUSE OF REPRESENTATIVES, January 25, 1864. Mr. Dawes, from the Committee of Elections, made the following report: That they have had the same under consideration, and have heard the claim- ant and others in support of his claim, and find the fol'owing facts : Mr. Field claims to have been elected on the 2d day of November, 1863, the day provided by law in Louisiana for the election of representatives to Congress, and from what is termed by him "the first congressional district" in that State, by which, is meant the first congressional district of that State under the apportionment preceding the last. Under that apportionment Louisiana "was entitled to four representatives, and the State was divided into four districts. Under the present apportionment the State is entitled to five representative's, and by a statute passed by Congress July" 14, 1862, (12 Statutes, 572,) these five members were required by law to be elected from "districts composed of contiguous territory equal in number to the number of representatives to which said State may be entitled in the Congress for which said election is held." It was -therefore necessary, before an election could be held in compliance with this law, that the State should be divided into five instead of four districts. By a reference to the credentials of Mr. Field, which are made a part of this report, it will be per- ceived that the credentials of three men are embodied in one, and they certify not only that Mr. Field is elected from the first district and Mr. Cottman from the second district, but also that Joshua Baker is elected from the fifth congres- sional district, composed of the whole State of Louisiana, and that this election was in accordance with the constitution and laws of said State of Louisiana. No law of Louisiana exists authorizing such a proceeding, and it is in direct conflict with the law of the United States already referred to. The State has never been divided into districts under the present apportionment according to the requirements of that act. If, therefore, there was no other difficulty in the way of giving effect to this alleged election, it could not be said that it had been held in conformity with, but in contravention of, law. But if search be made in this case for a constituency behind all forms, there will be found as entire a lack of this essential as of conformity to legal require- ment. The election purports to have been held in the first congressional dis- trict of Louisiana under the old apportionment. That district is composed of the two parishes of Plaquemines and St. Bernard, containing, in 1860, only twelve thousand five hnndred and sixty-six inhabitants, of whom only two thousand five hundred and sixty-three were male whites, and a large portion of the city.of New Orleans, containing, in 1862, when this district was formed, about the bal-| ance of the then apportionment of ninety-three thousand, and in 1860 of course a much larger number. But no election was held on the second day of November in any part of this district but the two parishes of Plaquemines and St. Bernard. The precise number of votes actually cast for Mr. Field in these two parishes, the committee have not been able to ascertain. Mr. Field had before the conv§ mittee returns from two or three precincts in St. Bernard, which were made Us CONTESTED ELECTION CASES IN CONGRESS, 581 a committee appointed to aid in conducting the election, and amounting to one hundred and fifty-six votes, and he believed, though he had no personal knowl- edge of the fact, that about as many more votes were cast for him in Plaque- mines. But in all that part of the district made up of the city of New Orleans, comprising almost the entire district, certainly more than nineteen-twentieths of" the inhabitants, there was no election held, and no opportunity given for an elector to express his choice. The election, so far as the city of New Orleans was concerned, was suppressed by orders emanating directly from the military gov- ernor of the State, Brigadier General Shepley. This suppression was effectual, so that not a vote was cast in the city, and the only constituency Mr. Field has was the small number of votes already stated from the very small fraction of the district situated outside the city limits. Without stopping now to comment upon this order of General Shepley suppressing the election, right or wrong, it was effectual, and in no proper sense can the proceedings be treated as an elec- tion. If the election was to be held in that congressional district, which, as has already been shown, was not according to law, still the voters of the district had no opportunity to make a choice. More than nine-tenths of them were silent, not of their own will, but by force of the military arm. Their mouths were stopped, and they cannot, therefore, be treated as having assented to what was done by the few who did have an opportunity to speak outside the city limits. , However desirous all may be of restoring representation from districts situated as this is at as early a period as possible, the committee can find no ground upon which these proceedings can be treated as an election, and are unanimous in re- porting adversely to the claim of Mr. Field. It is due to him, however, that the committee should add that the testimony before them disclosed abundant evidence of his loyalty to the government, and of his temperate and judicious efforts to restore the State to the discharge of its functions as a member of the Union. The evidence was equally gratifying that the city of New Orleans had in no degree fallen back from that quiet, orderly, and loyal condition in which, under the auspices and with the co-opera- tion of this same military governor, the city one year ago elected two representa- tives to the last Congress, by a very large vote, who served out here what remained of that Congress, on an equal footing with all others. The committee know of no other reason why another election could not have been held on the second day of November, the day provided by law for regular elections, except the failure of Congress to district the State, in conformity with the law already quoted. And had the claimant been able to have removed that difficulty, the interference of the military governor in suppressing an election on the day pro- vided by law for holding it would have been without justification, and would, in the opinion of the committee, have deserved the condemnation of the House. It is to be regretted that any opposition which the military governor felt called upon to make to the peaceful exercise of the elective franchise by legal voters, on the day fixed by law for the election of representatives in Congress — the highest and most sacred privilege guaranteed to the citizen — should not have been based upon the legal and defensible ground above alluded to. It did not appear before the committee whether the military governor acted in this matter in obedience to orders from his superiors or not; but sufficient was disclosed to show that the loj'al men of that State are much divided, and their strength wasted in pursuing and combatting abstract theories, and in nursing factions, ' constantly aiming for the ascendency. And there was too much evidence that government officials have been lending the influence of their official position to the advancement of these schemes. It is time there was an end of such pro- ceedings, and those responsible for this state of things should direct to the restoration of order and government, rather than to the triumph of men or fac- tions or theories, the effjrts of those placed in temporary authority among that distracted people. 582 CONTESTED ELECTION CASES IN CONGRESS. That no undue weight may be given to the credentials of Mr. Field, pur- porting to come from the government of the State, being signed "J. L. Riddell, governor of the State of Louisiana," it is proper that the facts elicited before the committee, bearing upon the authenticity of this certificate, should be laid before the House. ' Mr. Riddell claims to have been elected governor at the same time with the alleged election of Mr. Field. There were but few votes cast for him, five or six hundred, in the parishes about New Orleans, which are joined with that city in the first and second congressional districts under the old apportionment. The whole election, like that of Mr. Field, was under the auspices of a com- mittee, to whom the votes were returned, and he has himself no personal knowledge of the number of votes cast for himself or for' Mr. Field. That he received in all the number of votes already stated is only the best opinion he could form upon the subject. All voting for governor, as well as representative in Congress, in New Orleans, was forbidden by the military governor. The committee express no further opinion here upon the propriety of such conduct 6n his part, but only state the fact. Mr. Riddell claims to have been elected and qualified as governor by taking the oath of office before a justice of the peace in New Orleans. The term of office to which Mr. Riddell claims to have been elected did not, according to the laws of the . State, commence till the first of January, 1864. It is impossible to understand by what process of reasoning this Mr. Riddell has come to the conclusion that he was governor of the State of Louisiana on the twentieth day of November, 1863, the day this certificate bears date. It was also stated by him that the certificate in question was made out in this city upon information received by him from others, which he believed to be true, but of the truth of which he had no personal knowledge. For the foregoing reasons the committee are unanimously of the opinion that Mr. Field is not entitled to the seat he claims, and therefore recommend the adoption of the accompanying resolution : Resolved, That A. P. Field is not entitled to a seat in this house as a representative from the State of Louisiana in the thirty-eighth Congress. State of Louisiana, Executive Department : I, John Leonard Riddell, governor of the State of Louisiana, duly and legally elected by the voters of said State, in pursuance of the provisions of the constitution and laws of- said State, do hereby certify that an election begun and held in said State on the second day of November, eighteen hundred and sixty-three, in accordance with the laws of said State, for the purpose of electing five representatives from said State to the thirty-eighth Congress of the United States, the following named persons were regularly elected to represent said State in said Congress for the term of two years from the fourth of March, eighteen hundred and sixty-three, namely: From the first congressional district, A. P. Field ; from the second con- gressional district, Thomas Cottman ; from the fifth congressional district, composed of the whole State of Louisiana, Joshua Baker ; all of whom were regularly elected in accordance with the constitution and laws of said State of Louisiana. In testimony whereof, I, John Leonard Riddell, governor elected as aforesaid, and duly sworn, do hereby commission said persons so elected as aforesaid to represent said State of Louisiana in the said thirty-eighth Congress of the United States, and do hereby give these credentials in evidence of their legal and regular election as aforesaid ; and I do hereby affix my name and private seal of office, (the public seal thereof being forcibly kept in the pos- session of the public enemies of the State, ) on this twentieth day of November, in the year of our Lord one thousand eight hundred and sixty-three, and the eighty-eighth year of the independence of the United States of America. Tseal 1 J - L - EIEDELL, L J Governor of the State of Louisiana. In the debate in the House, Mr. Dawes made the subjoined statement : I was saying that the committee were unanimous in the conclusion they came to ; that they were unanimous in the resolution they agreed to report. But in reference to the report, no member of the committee, except the gentleman who made the report, is responsible for CONTESTED ELECTION CASES IN CONGRESS. 583 the statements contained in it. The committee were entirely unanimous upon the resolution ; the gentleman from Michigan [Mr. Upson] having one reason therefor, the gentleman from Wisconsin [Mr. Brown] having another, and my distinguished friend from New York [Mr. Ganson] holding perhaps still another reason. But they all agreed that the resolution should be reported, and by no process of reasoning could they come to the conclusion that the gentleman from Louisiana was entitled to a seat upon this floor. This covers the whole merits of the case, and it is quite unnecessary for me, or for any member of the committee, in the full discharge of the duty imposed upon him, to go further than to show that that gentleman is not entitled to a seat here. The reason why the gentleman is not entitled to a seat seems to be briefly this : he has neither, law nor a constituency to sustain him. He has not law to support him for this reason : the Constitution of the United States has provided, in article one, section four, that the Congress pf the United States may prescribe the mode of holding an election for repre- sentatives in Congress. The Congress.of the United States has prescribed the manner of holding- this election. That manner has not been conformed to in any respect in the State of Louisiana, and therefore thus far and to that extent the claimant has no law upon his side. Neither did the election conform to the statute of Louisiana, for the reason that the votes were not cast in conformity to law, nor were they counted or canvassed in conformity to law. So, then, the law, so far as that prescribed the manner,, the method, and the re- quirements of an election, is totally against this gentleman. Now, he had no constituency. By that I mean that there was no election, even in that which the claimant calls his district, which can be considered by any sort of rule a proper and just election— a choice by the Union voters of that district, admitting that the old first congressional district was the proper dis- trict in which the election should have been held. In order to show that this gentleman was the choice of the legal voters of that district, you must show that the legal voters of that district had an opportunity to express their choice. I do not mean to say that a man may not be elected to Congress, under some cir- cumstances, with only one hundred and fifty-six votes, the total number polled for this claimant. But when a man in a congressional distrfct of one hundred and twenty-three thousand inhabitants, and ten thousand legal voters, actually receives only one hundred and fifty-six votes, there are almost ten thousand who have not expressed then: choice. If they choose to stay away from the polls they are taken to acquiesce in what the one hundred and fifty-six men do at the polls. Under such circumstances it is right and proper to take the vote actually cast as the vote of the district. But when nearly ten thousand of the voters are found to have been prevented from appearing at the polls, and you can bring no charge against them that they voluntarily remained away, they cannot be held to have acquiesced in what one hundred and fifty-six men may have done. Their mouths were stopped, and they were not permitted to protest. Without stopping far one moment to discuss the propriety or right of military interference here, I have to say that the evidence was abundant that armed men prevented nine thousand eight hundred and forty-four voters in that district from expressing their choice at the polls. By what process of reasoning, then, can it be said that one hundred and fifty-six men who were permitted in one comer of the district, in the parish of St. Bernard, a fraction of the district, to go to the polls and express their choice, expressed the choice of the remainder of the district, and that that remainder acquiesced in what the one hundred and fifty-six men did? This is the state of the case, and this is all I desire to say. On February 9, 1864, the report was agreed to — yeas 85, nays 48-. Note. — The debate occurs in volume 50, page 543. For report : Mr. Dawes, page 543 ; Mr. Ganson, page 544 ; Mr. Brown, page 546. THIRTY-EIGHTH CONGRESS, SECOND SESSION. M. F. Bonzano, A. P. Field, and W. D. Mann, of Louisiana. These cases were not acted upon in the House. The committee reported in favor of the claimants. IN THE HOUSE OF REPRESENTATIVES, February 11, 1865. Mr. Dawes, from the Committee of Elections, made the following report : The election upon which Mr. Bonzano claims the seat was held on the 5th of September, 1864. The number of votes cast was — For Mr. Bonzano 1> 609 For all others h * 56 Total ...^^ ._^— ~ ~ 3, 065 584 CONTESTED ELECTION CASES IN CONGRESS. This election derives its authority from the constitutional convention which commenced its session in New Orleans, April 6, 1864, which amended essentially and adopted anew the constitution of Louisiana, and, among other things, did, on the 22d of July, 1864, divide the State into five congressional districts, in accordance with the number of representatives assigned to that State in the apportionment under the census of 1860, and ordered an election to be held on the first Monday of September, 1864, to fill the vacancies caused by the failure of the State hitherto to elect representatives to the present Congress. As the election under consideration derives its authority from this convention, a recital of the main facts connected with the origin and action of that convention be- comes necessary to a proper understanding of the subject. From nearly the commencement of the rebellion till the appearance of the' federal fleet under Commodore Farragut before the city of New Orleans in April, 1862, the State had been overrun by the rebel armies, and the governor had traitorously abandoned his duty and post, leaving the people without loyal government, and delivered over to the rebellion. Upon the taking possession of New Orleans by General Butler on the 1st of May following, he issued a proclamation, in which, among other things, he invited " all persons well dis- posed towards the government of the United States" to renew their oath of allegiance, and promised to such the protection of the armies of the United States. Under this proclamation sixty-one thousand three hundred and eighty- two (61,382) citizens took the oath of allegiance before the close of the follow- ing October. Subsequently, as -the rebel army retired from other portions of the State, and the federal army advanced and extended its lines, the citizens of the districts or parishes thus delivered from the restraint of the rebellion also promptly came forward and renewed their allegiance to the government of the Union. Soldiers, white and black, enlisted into the armies of the Union, and in New Orleans many of the citizens formed themselves into home-guards, to assist the federal authorities in case of an attack by the rebels. As fast as new parishes were brought into the federal lines, and the people in sufficiently large numbers renewed their allegiance and recognized the au- thority of the United States, the military governor of the State appointed judges, justices of the peace, clerks of courts, sheriffs, constables, and other civil officers, and performed all the acts which legally and constitutionally de- volve upon the governor of Louisiana. In all of which her loyal citizens ac- quiesced, and rendered an unquestioned obedience. Under a proclamation issued by the then military governor, November 14, 1862, an election was held December 3, 1862, for representatives in the 37th Congress from the first and second congressional districts of the State, under the old apportionment and the law of Louisiana as it existed before the rebellion. In the first 2,643 votes, and in the second 5,117 votes, were cast at this election. And the gentlemen claiming to have been thus duly elected presented their credentials to the last Congress, which, after careful examination and full dis- cussion, admitted them to seats as members. The admission of these .repre- sentatives to seats, and the opportunity which it gave to the loyal sentiment of the State to be heard and make itself manifest, had a most salutary effect upon the people of that State, and from that time the desire for a new State government and a resumption of State functions rapidly increased throughout all that portion of the State within our lines. The major general commanding in the department of the Gulf, yielding to the pressure from all sides that he would give direction to some practical end to the efforts which this desire on the part of the people was prompting to reorganize and re-establish their State government, did, under the direction of the Pre- sident, issue on January 11, 1864, a proclamation which is annexed to this report, inviting the people of Louisiana to participate in an election on the 22d of February of State officers under the constitution and law3 of the State, ex- CONTESTED ELECTION CASES IN CONGRESS. 585 l cept so far as they related to the subject of slavery, which were declared to be to that extent suspended and inoperative. Several orders intended to secure freedom of election and conformity as far as possible to the laws of Louisiana previous to the rebellion were issued by the general commanding, and the evidence is satisfactory to the committee that to the extent of the federal lines this election was general, conducted in good order, free from military or other control, and largely participated in by the people. v It resulted in the election of State officers by a vote of 11,414. At this elec- tion no person voted who was not by the constitution and laws of Louisiana a voter, except soldiers and sailors in the service of the United States who were citizens of Louisiana and in the S,tate at the time of the election, to the number of 808. All who voted took the oath prescribed by the President in his proc- lamation of December 8, 1863. These officers were installed on the 4th of March following at New Orleans, in presence and with the acclaim of a large concourse of people, estimated at 50,000. On the eleventh of the same month the commanding general issued another order, which accompanies this report, calling for an election of delegates to a convention for the revision and amendment of the constitution of the State. The governor by a proclamation joined in this call. All parties were consulted in reference to this election, and differed only as to the time of holding it. This convention commenced its sessions at New Orleans, April 6, 1864, and adjourned on the 25th of July. The entire proceedings, and. debates of this body have been ^tid upon the tables of the members of thi'3 house. The most important changes in the constitution of the State proposed by it were those in relation to slavery. The following were adopted by it, as the first and second articles of the constitution : Title. — Emancipation. Article 1. Slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are hereby forever abolished and prohibited throughout the State. Article 2. The legislature shall make no law recognizing the right of property in man. The proceedings of the convention were, by proclamation of the governor, submitted to the people for ratification or rejection on September 5, 1864, and were ratified without material opposition. The whole number of votes was over 9,000. This constitutional convention, by an ordinance adopted, divided the State into five congressional districts, and directed elections for representatives to the present Congress to be held in them, on the 5th September, 1864. And in ac- cordance with said ordinance, the governor issued his proclamation directing elec- tions to be held in accordance with it. In pursuance of this ordinance of the convention and proclamation of the governor, elections were held in these several districts for representatives in this Congress ; and in the first, M. F. Bonzano received 1,609 votes out of 3,065 cast. The governor gave him, accordingly, a certificate of his election, which has been presented to the House and referred to this committee. The committee have heard Mr. Bonzano in his own behalf, as also Mr. Field, who claims to have been elected at the same time in the second district, General Banks, and others. The information and arguments submitted by them accom- pany this report. This election depends for its validity upon the effect which the House is dis- posed to give to the efforts to reorganize a State government in Louisiana, which have here been briefly recited. The districting of the State for representatives, and the fixing of the time for holding the election, were the acts of the con- 586 CONTESTED ELECTION CASES IN CONGRESS. vention. Indeed, the election of governor and other State officers, as well as the existence of the convention itself, as well as its acts, are all parts of the same movements. It is objected to their validity, that they neither originated in nor followed any pre-existing law of the State or nation. But the answer to this objection lies in the fact that, in the nature of the case, neither a law of the State nor nation to meet the case was a possibility. The State was attempting to rise out of the ruin caused by an armed overthrow of its laws. They had been trampled in the dust ; and there existed no body in the State to make an enabling act. Congress cannot pass an enabling act for a State. It is neither one of the powers granted by the several States to the general government, nor necessary to the carrying out of any of those powers ; and all " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It is preposterous to have expected at the hands of the rebel authorities in Louisiana that, previous to the overthrow of the State government, they should prepare a legal form of pro- ceeding for its restoration. In the absence of any such legal form prepared beforehand in the State, and like absence of power on the part of the general government, under the delegated powers of the Constitution, it follows that the* power to restore a lost State government in Louisiana existed nowhere, or in " the people," the original source of all political power in this country. The people, in the exercise of that power, cannot be required to conform to any particular mode, for that presupposes a power to prescribe outside of themselves, which it has been seen does not exist. The result must be republican ; for the people and the States have surrendered to the United States, to Searcy, Van Buren, and White. These counties by their returns show that in the presidential election in I860 they cast 16,841 votes. Fourteen of these coun- ties, viz : Arkansas, Conway, Crittenden, Fulton, Independence, Izard, Jackson, Lawrence, Monroe, Philips, Prairie, Randolph, and VanBuren, which participated pretty fully in the election of March, cast the aggregate vote of 3,000. These counties in 1860 gave 14,005 votes; the six counties not voting, or voting to only a very limited extent, in the election of March, to wit : Craighead, Greene, Mississippi, Poinsett, Searcy, and St. Francis, gave in 1860 2,836 votes; these, under the ratio of the vote cast in the eleven counties that did vote, should have given about 537 votes at the March election. Of the 3,000 votes cast in this district for member of Congress, T. M. Jacks received all \mt fifteen. In the second district, composed of the counties of Ashley, Bradley, Calhoun, Chicot, Clark, Columbia, Dallas, Desha, Drew, Hempstead, Hot Springs, Jeffer- son, Lafayette, Ouachita, Pulaski, Saline, and Union, your committee have not been able to satisfy themselvesas to the vote cast; the evidence going to show that in this district the vote was respectable as compared to the whole. vote of the State — that some four or five counties did not vote in the election, and that the vote of the counties of Jefferson and Pulaski was relatively large. In the third district, composed of the counties of Benton, Carroll, Crawford, Franklin, Johnson, Madison, Marion, Montgomery, Newton, Perry, Pike, Polk, Pope, Scott, Clark, Sebastian, Sevier, Washington, and Yell, the vote in March was a tolerably full one, all except the county of Perry participating in the ■election. 600 CONTESTED ELECTION CASES IN CONGRESS. In this district the vote for representative in Congress was nearly five thou- sand, of which vote J. M. Johnson received over four thousand. These coun- ties in I860 gave an aggregate vote of 16,932. The position taken by the committee in the case of Mr. Bonzano, of Louis- iana, will apply with equal force to these cases from Arkansas. In the report in that case the committee say : This election depends for its validity upon the effect which the House is disposed to give to the efforts to reorganize a State government in Louisiana, which have here been briefly recited. The districting of the State for representatives, and the fixing of the time for hold- ing the election, were the act of the convention. Indeed, the election of governor and other State officers, as well as the existence of the convention itself, as well as its acts, are all parts of the same movements. . It is objected to their validity, that they neither originated in nor followed any pre-existing law of the State or nation. But the answer to this objection lies in the fact that, m the nature of the case, neither a law of the State nor nation to meet the case was a possibility. The State was attempting to rise out of the ruin caused by an araie'd overthrow of its laws. They had been trampled in the dust ; and there existed no body in the State to make an enabling act. Congress cannot pass an enabling act for a State. It is neither one of the powers granted by the several States to the general government, nor necessary to the carrying out of any of those powers; and all "the powers not delegated to the United States by the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively, or tothepeople." It is preposterous to have expected at the hands of the rebel authorities in Louisiana that, previous to the overthrow ot the State government, they should prepare a legal form of pro- ceeding for its restoration. In the absence of any such legal form prepared beforehand in the State, and like absence of power on the part of the general government, under the dele- gated powers of the Constitution, it fellows' that the power to restore a lost State govern- ment in Louisiana existed nowhere, or in/" the people," the original source of all political power in this country. The people, in the exercise of that power, cannot be required to conform to any particular mode, for ,ihat presupposes a power to prescribe outside of themselves, which it has been seen does not exist. The result must be republican ; for the people and the States have surrendered to the United States, to that extent, the power over thei form of government in this, that "the United States shall guarantee to every State a re- publican form of government." It follows, therefore, that if this work of reorganizing and re-establishing a State govern- ment was the work of the people, it was the legitimate exercise of an inalienable and inhe- rent right, and, if republican in form, is entitled not only to recognition, but to the " guar- anty " of the Constitution. The committee recommend to the House for its adoption the subjoined reso- lutions : Resolved, That T. M. Jacks is entitled to a seat in this house as a representative from the first congressional district in Arkansas, Resolved, That J. M. Johnson is entitled to a seat in this house as a representative from the third congressional district in Arkansas. Washington City, D. C, May 10, J 864. Sir : Permit us to present to you, and through you to the committee of which you are chairman, the accompanying statement, detailing a condensed history of Secession and Reorganization in Arkansas. A majority of the voters of Arkansas were opposed to secession at the.election on the 18tk of February, A. D. 1861, for members to a convention. There were in that election about 11,000 majority of Union votes cast, and about 9, 000 voters did not goto the polls. It may safely be assumed that all who stayed away from the election were Union men. The secessionists mustered their full strength, while Union men, not realizing the threatened danger, were dis- posed to treat this election as rather a farce than as the fearful reality it has since proved to have been. That election, allowing for several secesh conventions between the day of the election and the meeting of the convention, returned thirty-four secessionists and forty Union men. The convention remained thus divided during its boisterous session of the month of March. It finally adjourned subject to the call of its president, having accomplished noth- ing save that it did agree to refer the entire question of Union or secession back to the people, to be voted upon the ensuing August. Soon after the adjournment of the convention Sumter was fired upon ; Mr. Lincoln issued his proclamation calling for 75,000 men ; the president of the adjourned convention, by proclamation, convened said convention early in May; on CONTESTED ELECTION CASES IN CONGKESS. 601 the 6th an ordinance of secession was passed, and immediately thereafter the convention de- spatched its commissioners to Montgomery, Alabama, to ally the State with those forming the new confederacy. This was done without at all consulting the people, and thus was inaugu- rated a reign of desolation, terror, and blood, the like of which the world has seldom if ever seen. Men of little practical worth, and of less mqrals than worth, became the apostles of this new doctrine ; they belabored the people at every town, hamlet, by-place, and country cross-road, or dram-shop. They descanted at large upon the glories, the magnificence, the uncomputed wealth, the surpassing grandeur of a southern confederacy ; the laborer of to-day under the old government was to be a nabob, a moneyed prince of the new confederacy ; he that hesitated, that doubted, that could not realize all that was told him, and more, was a submissionist, a coward, a 'traitor, » fogy, a fool, a fit associate only for the ascetic, cold, plodding, heartless, soulless northerners, whose treachery and crimes were painted darker than Erebus. Such an one should not dare think of mingling in the society of the (slitc, dashing, chivalrous southerner, in whose veins flowed the best blood of all nations, and whose transcendent virtues were plucked direct from the throne of the Eternal. Indeed, the devil never labored half so hard to beguile mother Eve as did secessionists to deceive Union men. Volunteer soldiers were called for to fight the battles, if battle should be needed, of this " golden government." There, however, was to be no fight ; the " vandal hordes" were to quail and flee before southern daring. But fluent declamation and beautiful imagery could not stultify a large portion of the practical, thinking, patriotic Union men of Arkansas ; they would not volunteer into the new service. For their benefit the confederate conscription of May, 1862, was most graciously tendered. By this they were forced into the army or com- pelled to flee their homes to the swamps or mountain fastnesses, there to be hunted down like wild beasts by devils and hounds. By the rigor of the confederate conscription the State was alinolt depopulated of men until the people were relieved by the federal armies. There were several regiments and parts of regiments of Arkansas troops raised prior to General Steele's occupation of Little Rock, details of which can be furnished if needed. In September, 1863, General Steele occupied Little Eock, and General Blunt Fort Smith. A large portion of the State, by those movements, was rescued from the confederate despot- ism ; the swamps, the canebrakes, the mountain gorges gave up their long-hidden treas- ures, and, like the fabled hosts of Attila, men seemed to riseas by magic out of the ground, and flock to the standards of Steele and Blunt. There are now between seven and ten thousand true and tried Arkansians bearing arms in the federal service. Very soon after the federal occupancy of the State the reorganization movement com- menced. Large and enthusiastic reorganization meetings were held all over the liberated portion of the State. In November, the third congressional district, composed of the coun- ties of Marion, Carroll, Madison, Benton, Washington, Newton, Pope, Yell, Perry, John- son, Franklin, Crawford, Sebastian, Scott, Polk, Montgomery, Clark, Pike, and Sevier, elected, by a vote of over 4,0Q0, Colonel J. M. Johnson as a member to the United States Congress. In December, a number of stanch, prominent Union men of the State visited Washington city to see and confer with the President and with Congress, to learn what the State could do or what she ought to do. Early in January, 1864, a convention, composed of delegates from about one-half the counties of the State, assembled in Little Eock. After nearly three weeks' deliberation, they agreed upon a plan of reorganization. They amended, in a few important particulars, the old State constitution, a copy of which, as amended, is herewith forwarded. They appointed a provisional governor, lieutenant governor, and sec- retary of state. They provided for an election, to be held on .the 14th, 15th, and 16th of March, at which election the voters of the State were not only called upon to vote for all State, district, and county officers, but to vote upon the acts of said convention, approving or rejecting the same. While the convention were working at Little Eock, the Arkansas citizens in Washington had not been idle. They had represented to the President the great solicitude of their people at home. The President, not knowing of the action of the con- vention, ordered Major General Steele, commanding, to have an election in the State, to take effect on the 28th of March There was no previously arranged concert between the Ar- kansas citizens in Washington and the members of the convention ; but so great and all- absorbing was the one grand question, that of State reorganization, that there was not the slightest conflict in the results of their proceedings, save a difference of two weeks' time in the day set for holding the election ; and what is still the more remarkable, the day set apart by the President was that first fixed upon by the convention ; but upon mature deliberation it was thought that the people could be as well prepared for the election by the 14th as they could by the 28th, and that Arkansas had no time to lose in so important a measure. The President, after issuing his first order for an election, became advised of the action of the convention and immediately countermanded his first order, and instructed General Steele to "keep the convention on its own way" by holding the election on the 14th, 15th, and 16th of March, as provided by the convention. You will perceive that the election in Arkansas- was held not only in accordance with the promptings of a general uprising of the Union, sentiment of the State, but in obedience to a positive order of the President of the United States. 602 CONTESTED ELECTION CASES IN CONGRESS. That election ratified the constitution and ordinances of the convention by a vote of more than 12,000, elected a governor, a lieutenant governor, a secretary of state, an auditor of public accounts, a State treasurer, an attorney general, three supreme judges, three members to Congress, one from each district, as per apportionment under act January 19, 1861, six cir- cuit judges, seven prosecuting attorneys, twenty-three out of twenty-five State senators, and fifty-nine out of seventy-five representatives to the legislature, all of which will more fully appear from the governor's proclamation of April 11, a copy of which is herewith forwarded. By a reference to dates you will perceive that reorganization in Arkansas commenced sev- eral weeks prior to the issuance of the President's amnesty proclamation of December 8, 1863, which was not generally received in Arkansas till some two or three weeks later. The people, though possibly not approving that proclamation in all its details, laid hold of it as an anchor of hope ; it infused new life and vigor into the reorganization movement through- out the State. The people held their elections buoyant with hope, never doubting for a moment the faith of the government, that if they complied with expressed requiremeuts of that proclamation, their acts should be valid and they entitled to all the benefits therefrom arising. The State gave largely more than twice the number of votes required of her in that proclamation, and the votes given were not confined to one or two small and crowded localities. Arkansas has no large cities. She has fifty-five counties ; by a reference to the governor's proclamation you will perceive that forty-three of these are represented in the lower house of the State legislature. Her Congressmen were elected each in his own district by a vote bearing a fan- ratio to the vote in ] 860, as compared with the whole State vote, now compared to the whole vote of 1860. The first district is composed of the counties of Greene, Mississippi, Craighead, Eandolph, Lawrence, Fulton, Izard, Searcy, Van Buren, Independence, Jackson, Poinsett, Crittenden, Saint Francis, White, Conway, Prairie, Arkansas, Monroe, and Philips. These twenty counties in 1860 had a white population of 112,310 persons ; allowing one'vote for every six persons, the ratio ■of the presidential vote of the State for that year would give this district a voting population at that time of 18,718. In the election of the 14th, 15th, and 16th March it gave a vote of something more than 3,000, fully one-sixth of the vote of I860. In this district six counties, Greene, Craighead, Mississippi, Poinsett, Eandolph, and Searcy, are not represented in the lower house of the State legislature. The people of these counties were deterred from voting by bands of confederate soldiers in the rear of General Steele. T. M. JACKS, MEMBER ELECT. In the counties of the first district not represented in the State legislature there were in 1860 24,681 white persons, representing 4,113 voters, which number subtracted from the whole number, 18,718, leaves no less than 14,605 voters of 1860 represented now in the legis- lature by the vote of the 14th, 15th, and 16th March. A. A. C. ROGERS, MEMBER ELECT. In the second district the counties not represented in the legislature had in 1830 a white population of 24,008, equal to 4,001 voters, which taken from the whole number, 15,096, leaves 11,095 voters of 1860 now represented in the State legislature. J. M. JOHNSON, MEMBER ELECT. In the third district — the county of Perry the only one not represented in the legislature — there were in 1860 2,162 white persons, making 360 voters; these taken from 20,298 leave 19,938 voters of 1860 now represented in the State legislature. The second district is composed of the counties of Pulaski, Saline, Hot Springs, Jefferson, Dallas, Bradley, Drew, Desha, Chicot, Ashley, Calhoun, Union, Ouachita, Columbia, Hemp- stead, and Lafayette. This district in 1860 had a white population of 90,562, giving, for the same time, 15,096 voters; this district returned its member by a vote of more than 2,000. In this district the counties of Ashley, Chicot, Columbia, Desha, and Union have no repre- sentatives in the legislature. The third district, composed of the nineteen counties before mentioned that elected Colonel Johnson to Congress in November, 1863, had in 1860 a white population of 121,788, giving, as per ratio adopted, 20,298 voters at that time. They now give a vote of more than 5,000. All the counties of this district are represented in the legislature, except Perry. Of the voters of 1860, we think we are safe in saying that more than one-half of them have been forced from the State or into the rebel armies. Of those remaining in the State, and not in the confederate armies, we think fully one-half voted ; and of those who have proved their loyalty by voluntarily subscribing the President's amnesty oath, more than four-fifths of them voted. The legislature met in Little Eock on Monday, the 11th of April. The senate organized on Tuesday, with seventeen members present ; the house not till Friday, there not being a CONTESTED ELECTION CASES IN CONGRESS. 603 quorum in attendance until that day. The two -houses have been regularly in session ever since. The latest intelligence we have from them they had chosen one United States senator, and were balloting for the other. The governor, Isaac Murphy, was duly and formally in- augurated on Monday, the 18th April. All the other officers of the State have been qualified and properly inducted into office. County and township officers, such as sheriffs, clerks, county and probate judges, treasurers, coroners, school commissioners, internal improvement commissioners, justices of the peace, and constables, were elected at the late election for most of the counties. Tor those that could not hold their elections in March there is ample provisions made, as you will see by a reference to the schedule appended to the constitution. _ You will thus perceive that the machinery of our State is fully at work; that it is as yet a little rough. That it needs a little "grease," we, as well as any one else, do know ; but that the earnest will and the indomitable energies of the people will make it "go" is not to be questioned by any one cognizant of tho facts, for a moment. In conclusion, permit us to say in behalf of our people, that Union men in Arkansas have suffered what the world may imagine, but can never know ; they have passed through ordeals of sophistry and lies, firo and sword, pestilence and famine, terror and blood, and to-day they stand forth the purified monuments of constancy and patriotism, willing still to make further sacrifices for country and. principle. We present them to you, believing them worthy your most earnest and serious consideration. We present them as true men, not as quasi secessionists ; not as half-reclaimed rebels. They know that by the terrible convulsions of the last three years the pride of their State has been humbled, but they suffer no man to insinuate that their honor has been compromitted or themselves thereby disgraced. They feel but too keenly the pierce of this barb, perhaps unintentionally but too often hurled at them by men whose good fortune it has been to live where loyalty was fashionable — where loyalty was popular. Permit us to say for our people, that none but the southern Union man can ever know the highest cost of loyalty. From our more fortunate brothers we expect all the- rights, franchises, and amenities due American citizens. We ask nothing more; we are willing to receive nothing less. Wo come not as paupers, asking charity, but as equals, claiming justice. Hoping this condensed statement may be of service to your committee in arriving at con- clusions which shall be alike just and generous to the suffering people whom we nave the honor to represent, We subsciibe ourselves, most respectfully, yours, Hon. H. S. Dawes, Chairman Committee of Elections. T. M. JACKS. J. M. JOHNSON. A. A. C. ROGERS. PROCLAMATION- Executive Office, Little Rock, April 11,1864. In accordance with the provisions of the schedule appended to the constitution adopted by the late convention of the State of Arkansas, I, Isaac Murphy, provisional governor of said State, do hereby make proclamation that, at an election held on the 14th, 15th, and 16th days of March, 1864, the constitution and ordinances of said late State convention were ratified within the meaning of the President's proclamation of December 8. 1863, and that the vote for and against the constitution and ordinances was as follows : Constitution and ordinances, ratified, twelve thousand one hundred and seventy-seven votes. Constitution and ordinances, rejected, two hundred and twenty-six votes. And I further certify that the following named persons were elected to the various offices hereinafter named, to wit : Robert J. T. White, secretary of state ; James R. Berry, auditor of public accounts ; E. D. Ayres, treasurer of state ; Charles T. Jordan, attorney general ; C. A. Harper, T. D. W. Yonley, and Elisha Baxter, supreme judges. Elected to Congress. — 1st district, T. M. Jacks ; 2d district, A. A. C. Rogers ; 3d district, J. M. Johnson. Judges of circuit courts elected. — 1st judicial circuit, J. M. Hanks ; 2d judicial circuit, R. A. Whitmore ; 3d judicial circuit, ; 4th judicial eircuit, Thomas W. Pounds ; 5th judicial circuit, W. M. Matheney ; 6th judicial circuit, ; 7th judicial cir- cuit, ; 8th judicial circuit, Elias Harrell ; 9th judicial circuit, A. N. Hargrove. Prosecuting attorneys elected. — 1st judicial circuit, J. T. Moore; 2d judicial circuit, R. V. McCracken; 3d judicial circuit, ; 4th. judicial circuit, Joseph Cravens; 5th judicial circuit, S. W. Williams ; 6th judicial circuit, ; 7th judicial circuit, W. B. Pagett ; 8th judicial circuit, Thomas H. Patton ; 9th judicial circuit, J. R. Steele. 604 CONTESTED ELECTION CASES IN CONGRESS. MEMBERS ELECTED TO THE LEGISLATURE. Senators. — 1st senatorial district, E. I). Ham; 2d senatorial district, Joan McCoy; 3d senatorial district, Jesse M. Gilstrap ; 4th senatorial district, Luther C. White ; 5th senatorial district, Charles Milor ; 6th senatorial district, William Stout ; 7th senatorial district, F. M. Stratton; 8th senatorial district, Thomas Jefferson; 9th senatorial district. King Bradford ; 10th senatorial district, E. D. Rushing; 11 th senatorial district, J. J. Ware; 12th senatorial district, J. M. Lemmons ; 13th senatorial district, A. B. Fryrear; 14th senatorial district, T. . Lamberton ; 15th senatorial district, J. Q. Taylor; 16th senatorial district, Trueman Warner; 17th senatorial district, no returns; 18th senatorial district, I. C. Mills; 19th senatorial district, W. C. Valandigham ; 20th senatorial district, R. H. Stanfield ; 21st sena- torial district, no returns ; 22d senatorial district, W. H. Harper ; 23d senatorial district, E. W. Gilpin; 24th senatorial district, L. D. Cantrell; 25th senatorial district, E. H. Vance. Representatives. — Arkansas county, G. C. Cooper ; Bradley county, W. W. Scarborough ; Washington county, John Pearson, W. H. Nott, M. H. Patton, and Waddle ; Benton county, R. H. Wimpey, Jesse Shortess; Madison county, T. H. Scott, G. W. Seamans; Carroll county, J. W. Plumley, J. F. Seamans; Newton county, James R. Vanderpool; Crawford county, John Austin, J. G. Stephenson ; Franklin county, F. M. Nixon ; Johnson county, John Rogers, A. P. Melson ; Pope county, Robert White ; Marion county, J. W. Orr : Conway county, G. N. Galloway ; Yell county, B. Johnson ; Van Buren county, L. M. Harris ; Izard county, J. B. Brown ; Independence county, J. Clabb, A. Harper ; White county, J. J. Randall ; Jackson county, A. J. McLaren ; Lawrence county, Reed Shell, Ephraim Sharp ; Fultop county, Simpson Mason ; St. Francis county, R. H. Moore, C. S. Stile ; Crittenden county, F. Thursby ; Philips county, J. A. Butler, J. F. Hanks ; Monroe county, E. Wild ; Jefferson county, H. B. Allis, D. C. Hardeman ; Pulaski county, O. P. Snyder, L. S. Holeman ; Prairie ceunty, J. B. Claibourne ; Drew county, Wm. Cox, F. H. Boyd ; Dallas county, James Kennedy ; Ouachita county, J. W. "Neill ; Calhoun county, E. A. Ackerman ; Clark county, J. H. Green ; Montgomery county, J. C. Priddy ; Pike county, M. Stinnette; Hempstead county, Jas. Bowen, L. Worthington; Sevier county, Jno. Gilcoat, N. Musgrove; Lafayette county, J. C. Hale; Saline county, Warren Holle- man; Hot Spring county, Thomas Whitten; Sebastian county, J. R. Smoot, Jacob Snyder; Scott county, Thomas Cauthorn ; Polk county, John Wear. All of which appears of record, according to the poll-books returned and now on file in this office. In testimony whereof, I, Isaac Murphy, provisional governor of the State of Arkansas, have set my hand, (there being no seal of office. ) Done at Little Rock this day and date above written. ISAAC MURPHY, Prov. Governor of Arkansas. Office Secretary of State, Little Rock, Ark., April 23, 1864. The above is a true copy of the proclamation on file in this office. ROBERT J. T. WHITE, Secretary of State. CASES OF CONTESTED ELECTION IN THE SENATE OF THE UNITED STATES. Several cases are inserted in the following pages which are not, strictly speak- ing, cases of " contested election." As important legal points were settled in reference to the rights of senators to their seats, they were included for conve- nience of reference. TWENTY-FOURTH CONGRESS, SECOND SESSION. Mr. Sevier, of Arkansas. Mr. Sevier was elected one of the first senators from Arkansas after the admission of that State into the Union. He was elected in 1836, and according to the rale of the Constitution, and according to practice, he and his colleague had to draw lots to know what class of sen- ators they should be assigned to. In that lottery Mr. Sevier drew the shortest term, which expired on the 4th of March, 1837; so that, having been elected in ]836, he occupied his seat but about a year. After he drew the short term, and before the period arrived at which he would have to retire, the governor of his State, contemplating the vacancy which would happen after the 3d of March, 1837, appointed Mr. Sevier to fill that vacancy. The Senate sanctioned the act of the governor. Mr. Grundy submitted the subjoined report from the Judiciary Committee : At the last session of Congress the State of Arkansas was admitted into the Union, and the legislature of that State, in the month of October, 1836, elected Ambrose H. Sevier and William S. Fulton senators to represent the State in the Senate of the United States. It also appears that, upon the allotment of the said Arkansas senators to their respective classes, as required by the third section of the first article of the Constitution, the said Ambrose H. Sevier was placed in the class of senators whose term of service expired on the 3d day of March, 1837, and that the legislature of Arkansas have had no opportunity of filling the vacancy, not having been in session since the fact that the vacancy would occur could have been known in that State. The governor of the State of Arkansas, on the 17th day of January last, commissioned the said Sevier as senator, to fill the vacancy which would take place on the 3d of March. Upon this state of the case, the question is presented whether the said Ambrose H. Sevier is entitled to his seat under the appointment made by the executive of the State of Arkansas. In looking into the practice of the Senate upon the 606 CONTESTED ELECTION CASES IN CONGRESS. ' subject of executive appointments, no case like the present has been found. Several cases have occurred in which the executives of different States, in anticipation of the expiration of the regular term of service, have appointed senators, (the legislatures not being in session ; ) and in all of these cases the senators thus appointed were admitted to their seats ; until the called session of the Senate in March, 1825, when Mr. Lanman, of Connecticut, whose term of service expired on the 3d of March, 1825, produced his credentials from the governor of Connecticut, and the Senate decided he was not entitled to his seat by a vote of 23 to 18. v The decision seems to have been generally acquiesced in since that time; nor is it intended by the committee to call its correctness in question. The prin- ciple asserted in that case is, that the legislature of a State, by making elections themselves, shall provide for all vacancies which must occur at stated and known periods ; and that the expiration of a regular term of service is not such a contin- gency as is embraced in the second section of the first article of the Constitution. The report was agreed to. SPECIAL SESSION OF THE SENATE, 1849— THIKTY-FIRST CONGRESS. James Shields, of Illinois. Mr. Shields was an alien by birth, and had not been a citizen of the United States the term of years required as a qualification for senator. Hence the election was declared to be void. On March 13, 1849, Mr. Mason, of a select committee, made the subjoined report in the case of Mr. Shields, of Illinois. The secretary read the report and resolution, as follows : The select committee to whom was referred the certificate of election of the Hon. James Shields to a seat in this body, with instructions to inquire into the eligibility of the said James Shields to such seat, report: That, having given due notice to the said- James Shields, he appeared before them, and they took the subject into consideration. They further report that the said certificate of election declares that the said James Shields was chosen a senator of the United States by the legislature of the State of Illinois on the 13th day of January last; that it further appears, and is admitted by the said James Shields, that he is an alien by birth, and the only proof before the committee of the naturalization of the said James Shields in the United States is contained in the copy of a certificate of naturalization in the circuit court of Effingham county, in the said State of Illinois, which is annexed to and made part of this report, by which certificate it appears that the said James Shields was admitted "by said court a citizen of the United States on the 21st day of October, 1840. The committee therefore report the following resolution : Resolved, That the election of James Shields to he a senator of the United States was void, he not having been a citizen of the United States the term of years required as a quali- fication to be a senator of the United States. Mr. Calhoun submitted the subjoined amendment : Resolved, That the election of James Shields to be a senator of the United States was void, he not having been a citizen of the United States the term of yeavs required as a quali- fication to be a senator of the United States at the commencement of the term for which he was elected. CONTESTED ELECTION CASES IN CONGRESS 607 This was agreed to, March 15, 1849. During the contest Mr. Shields ten- dered his resignation. A motion to accept his resignation was voted down — yeas 12, nays 32. The committee's resolution, as amended by Mr. Calhoun, was adopted without division. Note. — The debate in this case, which is extended, will be found on pages 327, 332, vol. 40 Cong. Globe, Special Session, 1849. THIRTY-FIRST CONGRESS, SECOND SESSION. Mr. Winthrop, of Massachusetts. The sitting member, under executive appointment, has the right to occupy his seat until the vacancy is filled -by the State legislature and the credentials of the person so elected are presented to the Senate. In this case Mr. Winthrop, of Massachusetts, was appointed by the governor of the State to fill a vacancy. Mr. Rantoul was elected by the legislature, and Mr. Winthrop occupied the seat for some time, till Mr. Rantoul appeared and presented his credentials. Mr. Winthrop himself offered the following resolu- tion, which was referred to the Committee on the Judiciary : Resolved, That the Committee on the Judiciary inquire and report to the Senate, as early as practicable, at what period the term of service of a senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires. Mr. Butler, from the Committee on the Judiciary, to whom was referred the resolution submitted by Mr. Winthrop, made the following report : The Committee on the Judiciary, to whom was referred a resolution directing said committee to inquire and report at what period the term of service of a senator appointed by the executive of a State during the recess of the legisla- ture thereof rightfully expires, have had the same under consideration, and report : The question presented by the resolution turns mainly upon the construction of the clause of article 1, section 2, of the Constitution of the United States, which provides that " if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make tem- porary appointments until the next meeting of the legislature, which shall fill such vacancies." Your committee are of opinion that the sitting member under executive appointment has a right to occupy his seat until the vacancy shall be filled by the 'legislature of the State of which he is a senator during the next meeting thereof. To fill such vacancy, it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion that such acceptance should appear by the presenta- tion to the Senate of the credentials of the member elect, or other official infor- mation of the fact ; at which time the office of the sitting member terminates. When the member elect is present and ready to qualify, his express acceptance is at once made known ; and when his credentials are presented in his absence, his acceptance may be fairly implied. These general views are sustained by precedents. An early one may be found in the Senate Journal of 1809, page 381, where the question was settled, after debate, by the adoption, on the 6th of June, of the following resolution : 608 CONTESTED ELECTION CASES IN CONGRESS. Resolved, That the Hon. Samuel Smith, a senator appointed by the executive of Mary- land to fill the vacancy which happened in the office of senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the legislature of Maryi land, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month of June, unless said legislature shall fill such vacancy by the appointment of a senator, and this Senate be officially informed thereof. The precedent in this case has been uniformly followed from that time to the present, in the many cases that have arisen involving the same question. The whole subject was laid upon the table. Note.— The debate upon this case will be found on pages 461, 462, 463, and 46-1, Cong. Globe, 31st Cong., 2d session. THIRTY-SECOND CONGRESS, FIRST SESSION. Yulee vs. Mallory, of Florida. The State legislature may choose its own method for the election of a United States senator. On the first ballot Mr. Yulee, the contestant, received 29 votes, and 29 other votes were given to "blank." Mr. Yulee claimed that as he was the " only qualified person voted for" he was duly elected senator. The committee held otherwise. IN THE SENATE, August 21, 1852. Mr. Bright, from the select committee to whom the subject was referred, made the following report : That they have examined the law and the facts connected with this case ; they have heard the contestant by able counsel, and the sitting member in per- son, and after giving to each that consideration which the importance of the questions embraced merits, find that on the 13th day of January, 1851, the general assembly of Florida met in convention of the two houses to choose a senator of the United States to supply a vacancy which would occur before another constitutional session. The president of the senate presided, and upon a call of the roll, a poll viva voce was taken of the members, pursuant to the requirements of the constitution of the State, and twenty-nine responded David L. Yulee, and twenty- nine blank, whereupon the presiding officer declared that no choice had been made; they then proceeded to a second and third vote, with substantially the same result. On the 15th of January they again met in convention for the same purpose, and upon a call of the roll thirty-one members responded R. S. Mallory, and twenty-seven votes for Mr. Yulee and others ; whereupon the President de- clared Mr. Mallory to be duly elected. Neither the record nor any other evidence in the case shows that objection was made to any of those proceedings, or that their legality was questioned in or out of the convention at the time. The certificate of election was granted to Mr. Mallory, and he having been qualified, now holds the seat. Mr. Yulee contests his right to the seat on the ground that he was himself elected at the first vote, because there was a quorum of each house present, as appears by the journals, and he being the only qualified person voted for, had a majority of the legal votes. Those who responded " blank," he contends voted for no qualified person, and waived their electoral rights as effectually as if they had been silent. CONTESTED ELECTION CASES IN CONGEESS. 609 Mr. Mallory opposes to this inference a resolution of the two houses adopted in 1845 by concurrent vote, which has never been rescinded, and is in the fol- lowing words : Resolved, That a majority of all the members elect, composing the two houses of general assembly, shall be necessary to determine all elections devolving upon that body. The whole number of members elect was ^fifty-nine, and Mr. Yulee not having a majority of that number was not elected. From the facts disclosed it is quite apparent that the convention took this view of the matter. In deciding the questions which are raised out of the facts, the Constitution of the United States must, to the extent of its provisions, prevail over all other authority. That instrument gives to each State the right to elect two senators. Article 1, section 4, is in these words: " The times, places, and manner of hold- ing elections for senators and representatives shall be prescribed in each State by the legislatures thereof." The words of the third section in the same article are : " The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years." The first question, then, which arises is, what constitutes the legislature of Florida 1 for that, and that only, has the right to make the choice. The Con- stitution of the United States, article 1, section 1, says : " All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The constitution of Florida declares that " the legislative power of the State shall be vested in two distinct branches, the one to be styled, the senate, the other the house of representa- tives, both together the general assembly." These authorities leave no doubt that the two houses constitute the legislature of Florida, which holds the un- qualified right, under the Constitution of the United States, to elect the sena- tors for the State. Has this body executed the trust confided to it in such a manner as to satisfy the terms of the Constitution? The time, the place, and the manner of holding the election are all to be prescribed by it. To the time and place no objection is made, but the validity of the manner is questioned. No mode of election is prescribed by the Constitution, but this duty is left to the discretion of the several legislatures of the States. In carrying out the power, some elect by a concurrent vote of the two branches, the one having a negative upon the action of the other ; others elect in a convention of the two houses, in which case (as far as your committee are advised) a majority prevails. If numbers be regarded as a material element in such elections, it is manifest that in the same body of men different results may be produced, according as one mode or the other is pursued. There may be in convention a majority in favor of a candidate, making his success by this mode certain, while with the same number in his favor he might be defeated in one of the houses, if a con- current vote is required ; and such cases have occurred. Again, it may be observed that the power given to the legislature to regulate the time, place, and manner applies as well to representatives as to senators;. and here again are other diversities in the manner of exercising it. Some States elect by a plurality of votes ; others by a majority ; and others have re- quired at the first trial a majority, and a plurality afterwards. Some again (until Congress made a law upon the subject) elected by general ticket ; others either by single districts or districts entitled to more than one, according to. convenience. None of those modes of electing senators or representatives have been held unconstitutional, but members have uniformly been admitted to their seats, whether elected in one or other of these modes. These practices have at all times existed, and have uniformly been recog; nized as constitutional, proving clearly that the discretion reposed in the H. Mi.=- TW. Ri so 610 CONTESTED ELECTION CASES IN CONGRESS. legislature of the States may be exercised in a diversity of ways and yet be a sufficient compliance with the requirements of the constitution. The legislature of Florida adopted a course different from any of these, by requiring a majority of all the members elect in convention to make choice of a senator. This rule is as unobjectionable and harmonizes as well with the con- stitution as the modes pursued elsewhere. The right of the State to adopt such a rule has notWn directly questioned, but the legality of the means by which it was executed is denied. This point is the chief ground of controversy be- tween the parties. On the one hand, the validity of the resolution above cited is denied ; on the other, it is alleged that if the resolution Was not in force a usage equivalent to it existed, which was equally obligatory upon the conven- tion. This again is denied. We will first consider the character, force, and effect of the resolution. The first objection to it is, that it contains no evidence on its face that it is a, joint act of the two houses. This is true; but the journals place this matter in the clearest light. While there is an apparent defect in form, there was none in fact. It was passed in one house, sent to the other, and there agreed to by a concurrent vote ; it is a clear, unequivocal expression of the will of each house. No words added to it can make it a stronger or more complete expres- sion of that will. It is also in substance joint, since it is the will of both houses expressed in the same words. Moreover, it is permanent, being designed as a rule of action for both, by the united will of both, and it must stand as such until both concur in repealing or rescinding it. The next objection is, that it has not the forms of law usual in legislation, because it is not signed by the officers of each house, or approved by the governor. It is a sufficient reply to state that the constitution does not require the legislature to regulate the manner of election by law ; it may be by resolu- tion, either joint or several, or in any other method which commands the agree- ment of both houses of the legislature. The form of action being discretionary and the substance right, the objection becomes immaterial. The will of the two houses, when ascertained by vote in their respective chambers, is for this purpose a sufficient law, because they alone are empowered to prescribe the manner of choosing in such mode or by such means as they please. On this point a State constitution can neither control nor modify that of the United States, for the latter is the supreme law. This resolution being joint in fact, though not in the usual form, was a standing order of the two houses, in force until they by concurrent vote should rescind or modify it. It was consequently the rule prescribing the manner of election to the two houses when they met in convention on the 13th of January, 1851, and they were bound to proceed according to its requirements. This being the view which the committee take of the case, there is no neces- sity for pursuing the subject further, since Mr. Yulee did not obtain votes suffi- cient to elect him. It may not, however, be out of place to observe that the facts disclosed render it. evident that the two houses entered the convention with the full belief that no number short of a majority of all the members elect could make a choice of a senator, and conducted their proceeding under the conviction that they were bound to adhere to the established practice. There is also reason for believing that the members of the convention assembled and acted under the conviction that blank votes would be counted, inasmuch as the two houses on a former occasion and in another election had so decided. If blank votes are beyond doubt a nullity; if the resolution is to be regarded of no effect, and we are brought to the question, under these circumstances, whether Mr. Yulee is duly elected, it seems to us difficult to maintain the affirmative of that proposition upon the facts before us. If the members were misled on both of these material points by assuming that their previous doings afforded safe and certain rules of action, then they were misguided by what they CONTESTED ELECTION CASES IN CONGRESS. 611 * had a right to consider as authority, and must have acted under a misconception of right which stood, as they supposed, unquestioned. If this be so, they stand substantially in the condition of an elector who votes for a person disqualified, believing him to be qualified. The vote in such a case, though unavailing, is not rejected from the count. The only remedy which we can see for an election carried on through misap- prehension from such well-founded causes, is to set it wholly aside and open the way to a new choice ; hut in our view of the case there is no occasion to consider what ought to be done upon such a state of facts. The committee ought perhaps to notice one other fact which has been relied upon. Since the adoption of the resolution, the journals show a case in which a person who was declared not to be elected in convention because he had not the number of votes required, was afterwards declared elected by a concurrent resolution of the two houses. All that need be said of this transaction is, that it passed the Senate through the misapprehension of one of its members, as the journal proves, and was manifestly a violation of the resolution. It is equally manifest that the members of both houses did not regard it as affecting in any way the standing order, for its provisions were at all times subsequently ob- served as obligatory in convention. No argument is necessary to prove that sueh an irregular proceeding could have no effect upon the order either to modify or rescind it. With these views the committee recommend the adoption of the following resolution : Resolved, That the Hon. Stephen R. Mallory was duly elected a member of the Senate of the United States from the 3d day of March, 1851. The resolution was adopted without a dissenting vote. Note. — The debate in this case will be found in the Appendix to Cong. Globe, 1st session of 32d Congress, from page 1170 to 1176. THIRTY-SECOND CONGRESS, SECOND SESSION. Mr. Dixon, of Kentucky. There was no report in this case, the Senate refusing to send it to a com- mittee. The facts and the law are succinctly stated by Mr. Busk : The following facts make up the case: On the 17th of December, 1851, Henry Clay was a senator from Kentucky, chosen by the legislature for six years, which would have expired on the 3d of March, 1855. Being so a senator, he resigned by a communication to the legis- lature of Kentucky, declaring that it was to take effect on the first Monday iu September, 1852. The legislature, then in session, received the resignation, and chose Mr. Dixon to fill the vacancy thus to occur, from the first Monday in September, 1852, to the third day of March, 1855. The legislature then adjourned. On the 2i)th day of June, 1852, during the recess of the legislature of Kentucky, Mr. Clay died, and the governor of that State made a "temporary appointment" of Mr. Meriwether as a senator from Kentucky, to hold the seat until the first Monday of September, 1852. Mr. Meriwether immediately took the vacant seat, and held it until Congress adjourned on the last day of August, 1852. On the 6th of De- cember, 1852, the Senate reassembles, Mr. Meriwether does not appear, and Mr. Dixon ap- pears and presents his credentials, and claims the vacant seat. Manifestly, Mr. Dixon is one of two senators " chosen by. the legislature" of Kentucky "for six years," and he was chosen to fill a vacancy which has happened in the term of Mi-. Clay. The whole question turns on the point, How did this vacancy happen ? Mr. Clay resigned, fixing the first Monday of September as the day when he should vacate his seat, and died, nevertheless, a senator before that day arrived. Mr. Dixon was appointed by the legislature when in session, before not only the day which Mr. Clay's resignation fixed for his retire- ment, but also before Mr. Clay's death. 612 CONTESTED ELECTION CASES IN CONGRESS. We who maintain Mr. Dixon's title insist that the vacancy happened.by Mr. Clay's resign nation. On the contrary, those who deny Mr. Dixon's title insist that the vacancy hap- pened by Mr, Clay's death. Four questions arise : First. Can a senator resign ? Second. Can a senator resigning appoint a future day for his retirement from the Senate 1 Third. Can the proper appointing power receive such a resignation, and prospectively fill the vacancy 7 Fourth. If the legislature so prospectively fill the vacancy, can the appointment he defeated by the death of the resigning senator, before the arrival of the day fixed for his retirement from the Senate ? If a senator can resign, and can so resign prospectively, and if the legislature can so fill the vacancy prospectively, and if their action cannot be defeated by the death of the resign- ing senator, then Mr. Dixon's title is good, valid, and complete. The first question is expressly decided by the Constitution, which declares that vacancies may "happen by resignation." The second question is decided by an unbroken succession of precedents from the founda- tion of the government. Mr. Bledsoe so resigned, fixing a future day ; so did Mr. Clay in 1842 ; so did Mr. Berrien in 1852 ; and so did Mr. Foote in 1852. The third question is answered with equal distinctness by precedents. The legislature of Kentucky prospectively filled the vacancy made by Mr. Clay's resignation in 1842; the gov- ernor of Georgia prospectively filled the vacancy of Mr. Berrien in 1852 ; and the governor or legislature of Mississippi prospectively filled the vacancy of Mr. Foote in 1852. The only question remaining is the fourth : Can the death of the resigning senator after the legislature has prospectively filled the vacancy, and before the day fixed for his retire- ment, defeat the appointment of his successor already made? The Senate refused to refer the case to a committee, and declared Mr. Dixon entitled to the seat — yeas 27, nays 16. Note. — The debate in the case occurs on pages 2, 93, 96, Cong. Globe, 32d Congress, 2d session. THIRTY-THIRD CONGRESS, FIRST SESSION. Mr. Williams, of New Hampshire. Mr. Williams having been appointed by the governor of New Hampshire to fill a vacancy, and the State legislature having met and finally adjourned without filling it, it was held by the committee that the right of representation under the appointment had expired. IN THE SENATE, August 2, 1854. Mr. Butleh, from the Committee on the Judiciary, made the following report : Whereas the Hon. Jared W. Williams was appointed by his excellency the governor of New Hampshire, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States, which had happened by the death of the Hon. Charles G-. Atherton, a senator, whose term of service would have continued till the 4th of March, 1859 ; and Whereas it is understood that since that temporary appointment was made the legislature of New Hampshire has been convened at their regular session, and has adjourned to the last Wednesday of May next, without filling such vacancy, and that said State still claims a right of representation under said appointment, which the appointee is not at liberty to surrender by his act without the action of the Senate : at his request, therefore, Resolved, That the subject be referred to the Committee on the Judiciary, to inquire into the facts connected with it, and to make such report as they deem proper to enable the Senate to determine whether the right of representa- tion under said appointment has expired. CONTESTED ELECTION CASES IN CONGRESS. 613 Under this resolution tie committee are required to inquire into the facts connected with the case, and to make such report as they deem, proper, to enable the Senate to determine whether the right of representation under said appoint- ment had expired. .As the question to be determined must depend in a great measure on the proceedings of the legislature and constitution of New Hampshire, the committee submit the following as a part of their report, having a bearing on the case : COMMUNICATION PROM THE GOVERNOR TO THE LEGISLATURE. To the Senate and House of Representatives : I have signed all the bills and resolutions which you have passed the present session and presented for my approval, (except the bills and resolutions which I have returned to the House of Representatives, with ray objection thereto,) and having been informed by a joint committee of both branches of the legislature that you have finished the business before you, and are ready to adjourn, by the authority vested in me I do hereby adjourn the legislature to the last Wednesday of May next. N. B. BAKER. Council Chamber, July 15, 1854. Constitution of New Hampshire. — Page 23. The senate and house shall assemble every year on the first Wednesday of June, and at such other times as they may judge necessary ; and shall dissolve and be dissolved seven days next preceding the said first Wednesday of June, and shall be styled the general court of New Hampshire. . From the language of the governor's communication to the legislature, it seems to have been his judgment that the session had closed ; and from the language of the constitution, it would appear that it will have terminated on the day mentioned, as, by another provision of the constitution, the governor on the same day is required to dissolve the legislature. In this view of the sub- ject, in proprio vigors, the legislature had no power of assembling from the time of its adjournment, as announced by the governor, until the last Wednesday of May next, when its existence terminated. There was a power in the governor, should the general welfare require it, to call the legislature together as an existing body. But when so called together, what would have been the character of such a meeting 1 Would it not have been a distinct session, carrying with its acts and doings all the incidents of a separate session ? Such would seem to be a fair inference. This being con- ceded, then it would follow "that the late legislature did adjourn sine die, in the legal import of the term. If this is a legitimate conclusion, this case cannot, in any particular, be distinguished from that decided by the Senate in the case of the Hon. Samuel S. Phelps, a senator from Vermont, and the committee refer to that case as the authority for their conclusion in the case under consideration. In response to the resolution, the committee are of opinion that " the right of representation under the appointment" has expired. The report was agreed to without division. Note. — The debate will be found in Ccng. Globe, 33d Congress, 1st session, pages 2201, 2208, 2209, 2211. THIRTY-THIRD CONGRESS, FIRST SESSION. Mr. Phelps, of Vermont. Mr. Phelps was appointed to fill a vacancy by the governor of Vermont. The State legis- lature met and adjourned without filling the vacancy. The majority of the committee held Mr. Phelps was entitled to retain his seat. The minority of the committee held to the con- trary, and the Senate adopted the resolution of the minority. 614 CONTESTED ELECTION CASES IN CONGRESS". IN THE SENATE, January 16, 1854. Mr. Pettit, from the Committee on the Judiciary, made the following report : The following is the resolution referred to the committee, to wit : Whereas the honorable Samuel S. Phelps was appointed by his excellency the governo'l of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate o* the United States, which had happened by the death of the honorable William Upham, a senator, whose term of six years would have continued until the fourth of March, eighteen hundred and fifty-five ; and whereas it is understood that, since that temporary appointment was made, the legislature of Vermont has been convened at their regular session, and has adjourned without filling such vacancy: Therefore, Resolved, That the Committee on the Judiciary inquire whether the honorable Samuel S. Phelps is entitled to retain a seat in the Senate of the United States. The clauses of the Con- stitution which bear upon this question may be found in the third section of the first article of that instrument, and reads as follows : "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years ; and each senator shall have one vote. " Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expira- tion of the fourth year, and of the third class at the expiration of the sixth year, so that one- third may be chosen every second year ; and if vacancies happen by resignation or otherwise during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature'which shall then fill such vacancies." The committee do not think that the last clause of article 5 of the Constitu- tion, which provides " that no State, without its consent, shall be deprived of its equal suffrage in the Senate," has any bearing on this question. If a State refuses to appoint two senators by some means known to the Constitution, it does consent to be deprived of its equal suffrage in the Senate. And in such case the Senate cannot supply the deficiency by creating a senator ; but it can determine upon the validity of his appointment, whether it comes from the leg- islature or the executive of the State. There are two modes by which senators may be appointed, and whether ap- pointed by the one or the other mode they possess the same power and exercise the same rights and privileges and receive the same emoluments. These modes may be called primary and contingent. The first rests with the legislature and the second with the executive of the State when a vacancy happens in the re- cess of the legislature. The committee are of opinion that the framers of the Constitution, in pro- viding these two modes by which senators may be appointed, had in view the obvious propriety, if not necessity, of having two senators from each State, at all times in commission and ready for public service. The committee do not think that the language above quoted, " the executive thereof may make tem- porary appointments until the next meeting of the legislature," is very per- spicuous, definite or concise, in its phraseology or meaning, but, on the contrary, it is subject to two constructions. By one of these constructions both the power to appoint and the term of office of the appointee would terminate upon the meeting of the legislature, and thus leave the State for some days, until the legislature could appoint and the new senator reach the seat of government, without an " equal suffrage in the Senate," a condition which the committee think it was the intention of the constitutional convention to avoid. " The executive thereof may make temporary appointments until the next meeting of the legislature." What may be done until the next meeting of the legislature? May appointments be made until that time? Or may the appointee hold his office until that period, and no longer ? Or do both determine on the next meet- ing of the legislature? CONTESTED ELECTION CASES IN CONGEESS. 615 The committee think it is a limitation upon the power of the executive to make appointments in the recess of the legislature, and which cannot he exer- cised after its next meeting ; hut that the force or effect of such appointment, viz : the commission and office continue until superseded by the action of the primary appointing power, or the expiration of the senatorial term. In giving this exposition to this provision of the Constitution, the committee believe they have consulted and given effect to the spirit of that instrument, and have found the true intention and design of its framers, that the Senate should be composed of two senators from each State. On the 6th of June, 1809, the Senate adopted the following resolution : Resolved, That the honorable Samuel Smith, a senator appointed by the executive of Mary- land to fill the vacancy which happened in the office of senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the legislature of Mary- land, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month of June, unless said legislature shall fill such vacancy by the ap- pointment of a senator, and this Senate be officially informed thereof. The Senate, in this instance, after able and full debate, has solemnly deter- mined that the office of a senator, appointed by the executive, does not end on the next meeting of the legislature, but that it may continue during its session. The construction that the office does not terminate on the meeting of the leg- islature has received the uniform approval of the Senate from that time till this ; for, in all instances, (and they are numerous,) the senator appointed by the ex- ecutive has not only held his office until the next meeting of the legislature, but ■until his successor was appointed and made his appearance here to qualify. In the late cases of Mr. Winthrop and Mr. Eantoul, of Massachusetts, and of Mr. Merryweather and Mr. Dixon, of Kentucky, many able senators, to whose opinions great deference is due, expressed their convictions that it was a limita- tion of time, within which the appointment must be made, but that the office continued until superseded by the legislature. If, then, the office does not ter- minate on the meeting of the legislature, when will it terminate ? Can meeting be construed into end, dissolution, or adjournment] Your committee think not. With these adjudications of the Senate, and the exposition in debate by able senators, and in view of the propriety, if not the necessity, of having a full rep- resentation from each State in the Senate before us, and believing the language of the Constitution warrants the interpretation we have given it, your com- mittee have come to the conclusion that the Hon. Samuel S. Phelps is entitled to retain his seat, and offer for adoption the following resolution : Resolved, That the Hon. Samuel S. Phelps is entitled to retain his seat in the Senate of the United States. MINOEITY REPOET. The Committee on the Judiciary, to whom was referred the resolution of the Senate of the 4th instant, which reads as follows : "Resolved, That the Com- mittee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to a seat in the Senate of the United States," have reported thereon. As the undersigned dissent from the conclusions of a majority of their col- leagues, they ask leave to submit the following report of the minority. The facts upon which the resolution was founded are as follows : That the Hon. Samuel S. Phelps was appointed by his excellency the gover- nor of the State of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States, which had occurred by the death of the Hon. William Upham, a senator, whose term of six years would have continued until the 4th March, 1855 ; and that since the temporary appointment by the governor of said State, the legislature of Vermont has been convened at their annual session, and adjourned without filling the vacancy, as prescribed by the Constitution, which reads as follows : 616 CONTESTED ELECTION CASES IN CONGRESS. " And if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appoint- ments untill the next meeting of the legislature, which shall then fill such vacancies." The question presented to the committee by the foregoing resolution may be thus stated : What shall be the operation of an appointment of a senator made by the governor of a State in the recess of its legislature, where the legislature has met and failed to fill the vacancy by an election? The decision of this question depends upon the construction of the above words of the Constitution. If the power to fill the vacancy is devolved exclu- ively upon the legislature at its next meeting, then it would follow that the ap- pointing power of the executive would be exhausted ; and the senator appointed by him could, according to precedent, hold his seat only during the session of the legislature ; or, in other words, his commission would expire at the adjournment of the legislature. The question may be presented in another point of view, which might possibly lead to a different conclusion. If the legislature has merely the potential capacity to fill the vacancy according to its discretion, then a failure to perform this function might leave the executive appointment good to fill a continuing vacancy. This reduces the question to this proposition, viz : Do the words of the Con- stitution impose a limitation upon the office or the appointing power ] Before stating the conclusion of the undersigned, it may be proper to cite the precedents which are applicable to the question under consideration. The first case upon record is as follows : George' Read, a senator from the State of Delaware, resigned his seat upon the 18th day of September, 1793, and during the recess of the legislature of said State. The legislature of the said State met in January, and adjourned in February, 1794. Upon the 19th day of March, and subsequent to the adjournment of the said legislature, Kensey Johns was appointed by the governor of said State to fill the vacancy occa- sioned by the resignation aforesaid. The Senate decided — That Kensey Johns was not entitled to a seat in the Senate of the United States, as a session of the legislature of the said State had intervened between the resignation of the said George Read and the appointment of the said Ken- sey Johns. Mr. Eaton, from the Select Committee to whom was referred, on the 5th instant, the motion " that Mr. Lanman be admitted to take the oath required by the Constitution," together with the credentials of Mr. Lanman, submitted the following report : That Mr. Lanman's term of service in the Senate expired on the 3d of March. On the fourth he presented to the Senate a certificate, regularly and properly authenticated, from Oliver Wolcott, governor of the State of Connecticut, set- ting forth that the President of the United States had desired the Senate to convene on the 4th day of March, and ■ had caused official notice of that fact to be communicated to him. The certificate of appointment is dated the 8th of February, 1825, subse- quent to the time of notification to him by the President. The certificate further recites that, at the time of its execution, the legislature of the State was not in session, and would not be until the month of May. The Senate decided that Mr. Lanman was not entitled to a seat in the Senate of the United States. In May, 1809, the President of the Senate laid before that body a letter from the Hon. Samuel Smith, of Maryland, stating that, being appointed by the executive of that State a senator, in conformity with the Constitution, until the next meeting of the legislature, which will take place on the 5th day of June next, he submits to the determination of the Senate the question, whether an appointment under the executive of Maryland, to represent that State in the CONTESTED ELECTION CASES IN CONGKESS. 617 Senate of the United States, will, or will not, cease on the first day of the meeting of the legislature thereof. The Senate decided that the Hon. Samuel Smith, a senator appointed to fill a vacancy, was entitled to hold his seat in the Senate of the United States during the session of the legislature of Maryland, which, by the proclamation of the governor of said State, was to convene on the 5th day of the present month of June ; unless said legislature shall fill such vacancy by the appointment of a senator, and the Senate be officially informed thereof. The chairman of the Committee on the Judiciary, at the 2d session of the 31st Congress, to whom was referred the resolution of the Senate directing said committee to inquire and report at what period the term of service of a senator appointed by the executive of a State, during the recess of the legisla- ture thereof, rightfully expires, submitted the following report : The question presented by the resolution turns mainly upon the construction of the clause of article 18, section 2, of the Constitution of the United^ States, which provides that, " if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make tem- porary appointment until the next meeting of the legislature, which shall fill such vacancies." Your committee are of the opinion that the sitting member, under executive appointment, has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a senator, during the next meeting thereof. To fill such vacancy, it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion, that such acceptance should appear by the presentation to the Senate of the credentials of the member elect, or other official information of the fact — at which time the office of the sitting member terminates. When the member elect is present, and ready to qualify, his express acceptance is at once made known ; and when his credentials are presented in his absence, his acceptance may be fairly implied. Perhaps it would have been as well if the strict and literal meaning of the words, "uniil the next meeting of the legislature," had been observed on the first occasion in which their construction was brought in question ; that would have had the merit of certainty, but a certainty that might have been too severe for the true and liberal intendment of the framers of the Constitution. They certainly did mean to say that an executive appointment should terminate when legislative jurisdiction shall commence or be exercised. To give this severe construction to the words quoted would in all cases leave a State unrepresented for a time, that depending on legislative action. Rather than lead to that result, the Senate, under the precedents quoted, seem to have regarded the " next meeting of the legislature" as synonymous with the next session of the legis- lature, during which time the member under executive appointment might hold his seat, unless it should be filled by an .election before the termination of a session ; and this was probably in analogy to that provision of the federal Con- stitution by which power is vested in the President " to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." As there was no reference to a committee, and no reported debate in the case of Mr. Smith, of Maryland, which made the precedent, the essential reasons which govern the. judgment of the Senate are not given; the case, however, seems to have been well considered. There are two considerations which seem to have entered into that judgment : first, that the State legislature, after their meeting, should have an opportunity of consultation, in making a choice of senator, and the State, during such term of consultation, should not be deprived of a representative in the Senate. The utmost limit contemplated for the exer- 618 CONTESTED ELECTION CASES IN CONGRESS. cise of this legislative jurisdiction was the term of the sitting of the legislature. The second consideration was a confident assumption that the office would be filled during such term. The idea that a session would pass over without an election was not in the mind of the Senate. The Senate went very far when it gave an interpretation to the words referred to beyond their literal meaning, limiting the tenure of office of the sitting member to the day of the meeting of the legislature. This met with a decided opposition from a respectable minority, and in subsequent cases distinguished senators maintained the same view of the constitution. By the report of the committee, we are required to recognize as authority and to enlarge this liberality of construction. To say that the words, " until the next meeting of the legislature," may be construed to mean not only until and during the session of the next legislature, but beyond the next meeting of tbe legislature — in other terms, that until the next meeting, &c, may operate under the authority of precedent to give the sitting member a right to hold his seat beyond the meeting of the legislature. We cannot agree that by the authority of any precedent these words, "until and beyond," shall have such a meaning as will control the import of the Constitution, both in its spirit and letter. The Senate of the United States is composed of organized constituencies, the State legislatures ; to them belong the power primarily of electing their senators, when they are in session at the happening of the vacancy, and at their first meeting when it happens in their recess, and on them devolves the exclusive jurisdiction of filling such vacancies. Their right and authority to fill or supply vacancies, which have been temporarily filled by executive appointment, are as absolute and exclusive as was their power in an original election. When their power is brought into existence it must supersede all others, with this qualifi- cation, and that according to precedent, that they have a session to make the choice. In our view it does not depend on the actual exertion of the power to elect, but on its existence. A senator under an executive appointment may, or may not, represent the political views of his State ; he may be the mere per- sonal favorite of the governor. The Senate, as far as practicable, should be made to represent its constitutional constituency, and in this respect should preserve the republican feature of our Union. In nothing that is said here would we have it inferred that we regard the sitting member, whose case is before us, as one who may not claim his seat on high grounds and respectable authority. The sanction of a majority of the committee, the opinions of eminent jurists, out of this body, go far to sustain his claim. But from the views of the undersigned, above presented, we do not think the Hon. Samuel S. Phelps is entitled to hold his seat in this body. A. P. BUTLEK. J. A. BAYARD. The vote upon the resolution reported by the committee was — yeas 12; nays 26. So it was rejected. Note.— The debate will tie found on pages 176, 250, 303, 630, 689, and 646 of the Con- gressional Globe, 33d Congress, 1st session. THIRTY-FOURTH CONGRESS, FIRST SESSION. Mr. Trumbull, of Illinois. The State cannot add to the qualifications of a United States senator prescribed in the Constitution of the United States. Whoever possesses those qualifications is eligible. CONTESTED ELECTION CASES IN CONGRESS. 619 IN THE SENATE. February 27, 1856. Mr. Butler, from the Committee on the Judiciary, made the following report : That it has been under consideration and discussion by the committee, and there being such a division of opinion as to render it proper, in their judgment, to refer the subject to the Senate, they ask to be discharged from the further consideration thereof. Certified copy of the resignation of Lyman Trumbull of the office of justice of the supreme cour of the State of Illinois. Alton, May 19, 1853. Snt : I am induced, by considerations of a personal and private character, to resign the office of justice of the supreme court ; but to allow time for the election of a person to suc- ceed me, so that no public inconvenience may result from a vacancy on the bench, I hereby tender my resignation of said office, to take effect on the fourth day of July next. Yours, very respectfully, LYMAN TRUMBULL. His Excellercy JOEL A. Matteson, Governor of Illinois. United States of America, State of Illinois, ss : I, Alexander Starne, secretary of state of the State of Illinois, do hereby certify that the foregoing is a true and correct copy of Lyman Trumbull's resignation, filed in the secretary's office May 20, 1853. And I further certify that "Walter B. Scates was elected to fill said vacancy, and entered upon the discharge of the duties of said office July 13, 1853. In testimony whereof, I have hereunto set my hand and affixed the seal of State this ninth day of November, A. D. 1855. [l. s.] ALEXANDER STARNE, Secretary of State. Certificate of Joel A. Matieson, governor of the State of Illinois, relative to the election of Lyman Trumbull to be a senator of the United States, and also to the office of justice of the supreme court of that State. Executive Department, State of Illinois, November 1, 1855. I, Joel A. Matteson, governor of the State of Illinois, do hereby certify that it appears of record that on the eighth day of February, A. D. 1855, the two houses of the legislature of the State of Illinois met in convention and proceeded to vote for the election of a senator for said State to the Senate of the United States ; that upon the final vote Lyman Trumbull received fifty-one votes, Joel A. Matteson received forty-seven votes, and Archibald Williams received one vote ; and the Speaker of the House of Representatives thereupon declared Lyman Trumbull elected a senator of the United States for the State of Illinois, for six years from the fourth day of March, A. D. 1855. That it further appears from record that the said Lyman Trumbull was elected on the seventh day of June, A. D. 1852, a justice of the supreme court of the Sjate of Illinois for a term of nine years ; that on the 24th day of June, A. D. 1852, he was duly commissioned as justice for the term aforesaid, commencing on the first Monday of June, A. D. 1852, and ending on the first Monday of June, A. D. 1861; that he was sworn and entered upon the discharge of his duties appertaining to said office ; that the constitution of the State of Illinois contains the following provision, to wit : "The judges of the supreme and circuit courts shall not be eligible to any other office of public trust or profit in this State or the United States during the term for which they are elected, nor for one year thereafter ; all votes for either of them, for any elective office, ex- cept that of judge of the supreme or circuit court, given by the general assembly or people, shall be void." All of which, together with the legality of said election, are respectfully submitted to the Senate of the United States. J. A. MATTESON. [l. s.] By the governor : ALEXANDER STARNE, Secretary of State. To the President of the Senate of the United States. 620 CONTESTED ELECTION CASES IN CONGRESS. United States op America, State of Illinois, ss : I, Alexander Stame, secretary of state for the State of Illinois, do hereby certify that Lyman Trumbull was on the seventh day of June, A. D. 1852, elected judge of the supreme court of the State of Illinois, and was duly commissioned as such for the term of nine years, from the 24th day of June, 1852 ; that he took upon himself the oath of office, and entered upon the discharge of the duties of the same ; that said term of office for which he was elected is unexpired, and will not expire until the 27th day of June, 1861. In testimony whereof, I have hereunto set my hand and affixed the seal of said State this 24th day of February, A. D. 1855. [L. s.] ALEXANDER STARNE, Secretary of State. Protest of certain senators and representatives of the legislature of the State of Illinois against, the election of the Hon. Lyman Trumbull as a senator of the United States. To the honorable the Senate of the United States : The undersigned, senators and representatives of the people of the State of Illinois, in the legislature thereof, respectfully represent : That at a meeting of both houses of said legis- lature, in general assembly convened, on the 8th day of February, 18S5, for the purpose of electing a senator for said State to the Senate of the United States, for six years from the 4th of March, 1855, fifty-one votes were cast for Lyman Trumbull, forty-seven votes for Joel A. Matteson, and one vote for Archibald Williams, and that one member of said legis- lature was absent. They further represent that the constitution of the State of Illinois contains the following provision in the tenth section of the fourth article thereof: ' ' The judges of the supreme and circuit courts shall not be eligible to any other office of public trust or profit in this State or the United States during the term for which they are elected, nor for one year thereafter ; all votes for either of them, for any elective office, except that of judge of the supreme or circuit courts, given by the general assembly or the people, shall be void." They further represent that said Lyman Trumbull was, on the 7th day of June, 1852, elected judge of the supreme court of the State of Illinois, and was duly commissioned as such, for the term of nine years from the 24th day of June, 1852 ; that he took upon himself the oath of said office, and entered upon the discharge of the duties of the same ; that his said term of office for which he was elected is unexpired, and will not expire until the 27th day of June, 1861 ; and that in and by virtue of the said provision of the constitution of the said State of Illinois, the votes cast by the members of the general assembly for said Trum- bull,, for senator of said State, as aforesaid, are null and void, and said Trumbull is not legally elected to the Senate of the United States, and is not entitled to his seat in said Senate ; and against said pretended election the undersigned, in behalf of themselves and their constituents, do hereby protest. Senators. — Hugh L. Sutphin, Joseph Morton, James M. Campbell, J. C. Davis, W. H. Carlin, A. J. Kuykendall, M. O. Kean, Ben. Graham, John E. Detrich, Silas L. Bryan, James L. D. Morrison, G. R. Jenngan, and A. P. Corder. Representatives. — F. D. Preston, C. L. Higbee, Tho. P. Richmond, George Walker, T. B. Sauner, Dr. H. A. Browne, S. D. Masters, Saml. H. Martin, William J. Allen, B. P. Hinch, Eli Seehorn, James Bradford, Jonathan Dearborn, D. McClain, Frank M. Rawlings, G. M. Gray, Jona. McDauiel, Wm. R. Morrison, P. E. Hosmer, L. F. McCrillis, George H. Holli- day, J. R. Bennett, S. W. Moulton, W. N. Cline, Presley Funkhouser, James M. Pursley, Hugh Gregg, C. C. Hopkins, and Henry Richmond. Credentials of tlie Hon. Lyman Trumbull, elected a senator by the legislature of the State of Illinois. It is hereby certified that, in pursuance of a joint resolution to that effect adopted, the two houses of the general assembly of the State of Illinois, now in session at Springfield, in said State, did convene in joint session in the hall of the house of representatives on the eighth day of February, in the year of our Lord one thousand eight hundred and fifty-five, for the purpose of electing a senator to the Congress of the United States for the term of six years from the fourth day of March in the year aforesaid, and that Lyman Trumbull was then and there, by said joint session of the legislature of said State, duly elected senator to represent the State of Illinois in the Senate of the United States for six years from the said fourth day of March next. Dated at Springfield the ninth day of February, one thousand eight hundred and fifty-five. Attest : GEORGE T. BROWN, Secretary of the Senate. EDWIN T. BRIDGES, Clerk of the House of Representatives. THOMAS S. TURNER, Speaker of House of Representatives and presiding officer of said joint session. CONTESTED ELECTION CASES IN CONGRESS. 621 United States op America, State of Illinois, ss : I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that the foregoing is a true arid correct copy of a certificate of the election of Lyman Trumbull to the United States Senate, as filed in my office by the clerk of the house of representatives. In testimony whereof, I have hereunto set my hand and affixed the seal of said State this 15th day of February, A. D. 1855. [L. s.] ALEXANDER STARNE, Secretary of State. Mr. Crittenden submitted the following statement of facts in his argument before the Senate : The facts in the case are few and undisputed. Mr. Trumbull was, in point of fact, chosen by the legislature of Illinois as a senator in this body. It is true that some four years before that time he had been elected a judge of one of the circuit courts of that State, but it is also true that he had resigned that office about eighteen months before his election as a senator. The first question, therefore, that presents itself is, whether upon these facts, and a proper construction of the constitution of the State of Illinois, he is entitled to his seat? No ob- jection is made to any qualification required by the Constitution of the United States. The question is, whether there is anything in the constitution of Illinois which can invalidate his election. I will first consider the question as it arises upon the constitution of Illinois, and then as respects the Constitution of the United States. The provision of the constitution of Illinois I desire to read to the Senate. The tenth section of the fifth article of the con- stitution of that State reads in* these words: "The judges of the supreme court shall receive a salary of $1,200 per annum, payable quarterly, and no more. The judges of the circuit courts shall receive a salary of $1,000 per annum, payable quarterly, and no more. The judges of the supreme and circuit courts shall not be eligible to any other office of public trust or profit in this State, or the United States, during the term for which they are elected, nor for one year thereafter. All votes for ' either of them for any elective office, (except that of judge of the supreme or circuit court, ) given by the general assembly, or the people, shall be void." Mr. Trumbull was elected on the 7th of June, 1852, judge of the circuit court for the term of nine years. Having held that office less that one year, he resigned on the 19th of May, 1 853, to take effect on the ensuing 4th of July. He was elected to the Senate of the United States on the 8th of February, 1855, more than eighteen months after his resignation, but before the expiration of the nine years for which he had been originally elected a judge. To these facts we are to apply the constitutional provision which I have read, which de- clares that no judge of the supreme court or circuit court should be eligible to any other office for the term for which he was elected, and for one year thereafter. Does this prohi- bition in the constitution of Illinois apply to such a case as this ? I say that it does not. In order to ascertain the meaning of any instrument, we must endeavor to ascertain the inten- tion of its framers. What was the intention of the framers of this provision ? It was to preserve the independence of their judiciary, and to prevent the possibility of one of the judges of the State using the influence of that office to obtain another. That is'the reason and the sole reason for this prohibition ; and to accomplish this object the constitution of Illinois provides not only for ineligibility during the term of nine years, but for one year thereafter, lest he should, by anticipated contrivances, intrigues, and influence, provide for another office by the use of the influence which his present office affords. One year after the expi- ration of his office was supposed to be sufficient for that purpose. The argument in favor of Mr. Trumbull's right to the seat proceeded upon the ground that the people of Illinois could not add to the qualifications of a senator as prescribed in the Constitution of the United States. Mr. Trumbull was declared entitled to the seat — yeas 35, nays 8. Note. — The debate in this case occurs in vol. 32, part 1, pages 1, 58, 343, 466, 514, 515, 547, 549, 552, 579, 584. THIRTY-FOURTH CONGRESS, THIRD SESSION. Mr. Harlan, of Iowa. The simple facts were reported in this case. There was no memorial. The debate in the Senate shows that the majority held that the legislature ot Iowa did not elect Mr. Harlan senator, the senate not meeting as such in joint convention with the house of representa- tives. 622 CONTESTED ELECTION CASES IN CONGRESS. IN THE SENATE, January 5, 1857. Mr. Butler, from the Committee on the Judiciary, made the following report : The following proceedings were had in the legislature of the State of Iowa in the election of a United States senator: Saturday, December 9, 1854. Resolved, (the senate concurring, ) That- the house of representatives will meet the senate in the hall of the house on Tuesday next, at 2 o'clock p. m., for the purpose of electing a senator of the United States and judges of the supreme court. On motion, The resolution was laid on the table. December 12, 1854. Resolution fixing the time for the election of a United States senator was taken up and amended so as to fix Friday, the 15th instant, as the day for an election. Message from the senate, by Mr. Rankin, their secretary : . Mr. Speaker : I am instructed by the senate to inform the house that the senate has con- curred in the house resolution to go into joint ballot on Friday, the 15th instant, for the pur- pose of electing a United States senator and supreme judges, with the following amendment, viz : to strike out the words Friday, the 15th instant, at 2 o'clock, and insert this : Wednesday evening, at 2J o'clock. Agreed to. Joint convention of the two houses. The president of the senate acting as president of the convention, and the clerk of the house acting as secretary. On motion, the convention proceeded to the election of a United States senator for six years from and after the 4th day of March next. The president appointed Mr. Workman teller on the part of the senate. The speaker ap- pointed Mr. Kinert teller on the part of the house. The convention proceeded to a vote, which resulted in no choice. The convention proceeded to a second ballot, which resulted in no choice. The convention adjourned until to-morrow at 10 o'clock. December 14, 1854. By order of the president the roll of the convention was called. Same tellers as yesterday. Motion to adjourn until Thursday next at 10 o'clock. Motion prevailed. The president announced the convention adjourned until 10 o'clock a. m. Thursday, De- cember 21. Thursday, December 21, 1854. Joint convention of the two houses ; the president of the senate acting as president of the convention, and the clerk of the house acting as secretary. Same tellers acting. The president having announced the purposes of the convention, and directed the roll to be called — The convention proceeded to vote for a United States senator for the term of six yea» from and after the 4th day of March next. After several ballots, without making a choice, the convention adjourned until the 5th day of January, 1855. Friday, January 5, 1855. Convention met. The president announced the purposes of the convention. After several ineffectual ballots, on motion, the- convention adjourned until to-morrow morning 10 o'clock. CONTESTED ELECTION CASES IN CONGRESS. 623 Saturday, January 6, 1855. It being the hour of 10 o'clock a. m., the speaker of the house announced the same, and the special order to be a joint convention of the senate and house of representatives, pursu- ant to adjournment, for the purposes of electing a United States senator and judge of the supreme court. A committee of three was appointed to wait upon the senate and inform that body that the house of representatives was now ready to receive the senate in joint convention, &c. The committee appointed to wait on the senate reported that they had discharged that duty by proceeding to the senate chamber and delivering their message, and informing the secretary of the senate thereof. That the secretary informed the committee that the senate had adjourned over to Monday next. A number of the members of the senate entered the hall of the house without their presi- dent and took their seats. The speaker announced that the joint convention of the senate, and house of representa- tives was now in session, pursuant to adjournment, for the purposes of electing a judge of the supreme court and a United States senator. Mr. Samuels rose to a question of order, to wit : Was the joint convention properly con- vened ? The speaker announced that the convention had now convened. Mr. Samuels appealed from the decision of the speaker, and asked for the yeas and nays, and insisted on his appeal being decided only by the house of representatives. The roll of the joint convention was called, and the following members of the convention answered to their names, being a majority of both branches of the general assembly. [Here follow the names of 57 members.] Those members of the convention and members of the house of representatives, except Mr. Franklin excused, who did not answer to their names, refused to answer, or retired from the hall during the call of the roll. The speaker announced that a majority of the members of the general assembly being present, that there was a quorum of the joint convention now convened, pursuant to adjourn- ment, and that the appeal of Mr. Samuels could not be taken to the members of the house of representatives only. On motion of Senator Anderson, William W. Hamilton, a senator from Dubuque county, was elected president pro tern, of the convention. The president of the senate still being absent, The speaker of the house of representatives in his chair, and the clerk of the house of representatives acting as secretary of the joint convention. The roll of the convention was called, and the following members of the convention did not answer to their names, to wit : [Here follow the names of forty-four members. ] On motion of Mr. Russell, The sergeant-at-arms was directed to notify members of the convention who had not an- swered to their names that the convention was now convened, and to request their attend- ance. Senators Ramsey and Thtirston appeared on the floor of the convention, and desired to be considered as not acting in the convention. The sergeant-at-arms reported that he had performed his duty, as required by the conven- tion; that a few of the members he could not find. On motion of Mr. Conkey, Further proceedings under the call were dispensed with. Mr. Workman, teller on the part of the senate, being absent, Mr. Needham was appointed in his stead. Mr. Kinert acting as teller on the part of the house. The convention proceeded to the election of a second associate judge of the supreme court ; after which the convention proceeded to the election of a United States senator for the State of Iowa, for the term of six years, from and after the 4th of March next. * * - * Mr. Anderson nominated James Harlan, of Henry county. The convention proceeded to vote for a United States senator, being the ninth vote, which resulted as follows : Those voting for James Harlan were — [Here follow the names of fifty-two members.] Messrs. Clark, of Marion, and Neely voted for Bernbart Henn; Mr. McAchran voted for Wm. McKay ; Mr. Witter voted for James Grant. James Harlan having received a major- ity of all the votes cast, and a majority of the whole number of the members of the general assembly, was declared duly elected a senator of the United States, for the State of Iowa, for the term of six years from and after the 4th day of March next. The certificate of election was made out and duly attested in the presence of the conven- tdon,&c. ********* 624 CONTESTED ELECTION CASES IN CONGRESS. Hall op the House of Representatives, January 6, 1855. This will certify that, at an election by the general assembly of the State of Iowa, in joint convention, on Saturday, the 6th day of January, A. .D. 1855, James Harlan was duly elected a senator to represent this State in the Senate of the United States for the term of six years from and after the 4th day of March next. WILLIAM W. HAMILTON, President pro tern. REUBEN NOBLE, Speaker of the House of Representatives. Attest : John R. Needham, \ TU David Kinert, $ On motion of Mr. Hills, the joint convention adjourned sine die, and the members of the senate retired. [Journal of the house of representatives of the State of Iowa. Monday Morning, January 8, 1855. Mr. Coolbaugh offered the following : Whereas it is reported that the journal of the house of representatives, as read this morn- ing in the presence of the house, alleges that a joint convention of the general assembly of . this State was held in the hall of the house on Saturday, the 6th instant ; and whereas it is alleged in said'joumal that said joint convention proceeded to elect one Norman W. Isbell as an associate judge of the supreme court of this State, and one James Harlan as a senator of the United States, for the term of six years from the 4th day of March next : therefore, Resolved, That inasmuch as the senate has no knowledge of any such joint convention, and did not participate in the proceedings, therefore it hereby protests against the action of the so-called joint convention, and declares the same to be void and of no effect. Resolved, That a copy of this preamble and resolution be signed by the president and certified to by the secretary of the senate, be presented to the governor of this State, and also a copy forwarded to the presiding officer of the Senate of the United States, with a request to lay the same before that body. Upon the adoption of which, the yeas and nays being demanded were ordered, and were as follows : yeas 17 ; nays 14. The preamble and resolutions were adopted. — Journal of the senate of the State of Iowa, 1854-'55. AN ACT to provide for the election of United States senators and other officers. SECTION 1 . Beit enacted by the general assembly of the State of Iowa, That at each and every regular session of the general assembly of this State, next preceding the expiration of the constitutional term of service of a United States senator, or at any session when a vacancy shall exist, at an hour to be designated by a resolution of either branch, with the concurrence of the other branch of the general assembly, the members of both houses thereof shall meet in convention in the hall of the house of representatives, for the purpose of electing a senator or senators by joint vote, in pursuance of the Constitution of the United States, to represent this State in the Senate of the United States. Sec. 2. The president of the senate, or, in his absence, the speaker of the house of repre- sentatives, shall preside over the deliberations of the convention; and in the absence of both, a president pro tempore shall be appointed by joint vote. Sec. 3. At any time prior to meeting in convention as aforesaid, after the time for meet- ing has been designated as aforesaid, each branch of the general assembly shall appoint one teller, and the two tellers thus appointed shall act as judges of the election. Sec. 4. The secretary of the senate and the chief clerk of the house of representatives shall each keep a fair and correct record of the proceedings of the convention, which shall be entered upon the journals of each branch of the general assembly. The chief clerk of the house of representatives shall act as secretary to the convention. Sec. 5. The names of the members of the general assembly shall be arranged by the secretary in alphabetical order, and each member shall vote in the order in which his name stands when thus arranged. Sec. 6. When the convention shall be organized as aforesaid, the members present shall proceed to choose viva voce a senator or senators, as the case may be, to represent this State in the Senate of the United States. The name of the person voted for, and of the members voting, shall be entered in writing by the tellers, who shall, after the secretary shall have called the names of the members a second time, and the name of the person for which each member has voted, report to the president of the convention the number of votes given for each candidate. CONTESTED ELECTION CASES IN CONGRESS. 625 Sec. 7. If neither of the candidates shall receive the votes of a majority of the members present, a second poll may be taken ; and so from time to time, until some one of the candi- dates shall receive a majority of the votes of the members present. Sec. 8. If the election shall not be completed at the first meeting, the president shall adjourn the convention whenever, and to such time as a majority of the members then present shall determine ; and so from time to time, until some one of the candidates shall receive a majority as aforesaid. SeC. 9. When any person shall have received a majority of the votes aforesaid, the president of the convention shall declare him to be duly elected a senator to represent this State in the Senate of the United States ; and he shall, in the presence of the members of both houses, sign two certificates of election, attested by the tellers — one of which he shall transmit to the governor, and the remaining one shall be preserved among the records of the convention, and entered at length on the journals of each house of the general assembly. Sec 10. Upon the reception of said certificate, the governor shall cause a credential to be made out, with the great seal of the State affixed thereto, and cause it to be delivered to such senator elect, which credential shall be in form following : [Here follows the form of the credential.] Laws of Ioitia, 1847, pages 92 and 93. The Constitution of the United States contains the following provision in reference to the election of United States senators: Sec. 4. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time> by law, make or alter such regulations, except as to the places of choosing senators. And the clause under which the committee are acting, as to the qualification of the gen- tleman, is as follows : Sec. 5. Each house shall be the judge of the elections, returns, and qualifications of its own members. <* ° ° a ° ° e - o » State op Iowa, to wit : The general assembly of this State, on the sixth day of January, one thousand eight hun- dred and fifty-five, having, in pursuance of the Constitution of the United States of America, chosen James Harlan a senator to represent this State in the Senate of the United States, I, James W. Grimes, governor of the State of Iowa, do by these presents certify the same to the Senate of -the United States. Given under my hand and the great seal of the State of Iowa this twentieth day of January, 1855. _ [i/s.] JAMES W. GRIMES. By the governor : Geo. W. McCleary, Secretary of State. The foregoing statement of facts and recital of clauses of laws and the con- stitution present all the questions involved in the controversy growing out of the contested election under consideration. From the view which a majority of the committee have taken of these questions, they have come to the conclu- sion that the sitting member (Mr. Harlan) has not been duly elected a senator of the United States by the legislature of Iowa. Resolved, That the seat of the aforesaid- gentleman bo declared vacant. Mr. Bayakd, of the Judiciary Committee, made the subjoined statement of the facts of -the.case : The substantial facts of the case I understand to be these : A resolution was passed in the house of representatives of Iowa on the 13th of December, 1854, proposing to the senate of Iowa to meet in joint convention on the 15th of December for the purpose of electing a senator of the United States. The resolution was amended by .the senate by fixing two o'clock, or two and a half o'clock, of the same day for the joint meeting. The house con- curred in the amendment, and the bodies went into joint convention on that day, a quorum of each house being present when they met. They proceeded to ballot, and having balloted ineffectually, they adjourned at various times— on one occasion, I think, from the 14th of December, 1854, to the 5th of January, 1855. On the 5th of January they met, and still H. Mis. Doc. 57 40 626 CONTESTED ELECTION CASES IN CONGRESS. failed to elect a senator. They adjourned to ten o'clock on Saturday morning, the 6th of January. The senate, (as throughout the whole of these proceedings it appears each house did,) after they separated, returned to their own chamber, and adjourned to the same hour on the next day. When the senate met at ten o'clock on the 6th of January, they, without doing any business whatever, adjourned to Monday at nine o'clock. This adjournment was carried by a vota of the majority, on the yeas and nays— 16 to 15— the whole body, con- sisting of thirty-one members, being present. The senate of Iowa was, therefore, not in ■session on Saturday after ten o'clock. The house of representatives met, at what hour I do not know ; but after transacting ap- propriate business as a house of representatives, they proceeded to receive, not the senate of Iowa, which was not in session, but to receive members of the senate of Iowa as members of the joint convention; and when those members were assembled there, together with the members of the house, they constituted a majority of the two branches combined ; that is, a majority of the whole number of persons in the convention. But there was present— I speak now of persons present in the sense of legal presence, as evidenced bj>" the vote— only a majority of the house and a minority of the senate— a quorum of one body and not a quorum of the other. The speaker of the house assumed that the members thus assembled were a regularly organized convention of the legislature, with the power to elect a United States senator. No vote was taken by the convention on that point. An appeal was taken from the decision, and it was contended that the house ought to decide whether it was organized. That appeal the speaker denied, and there, was no vote taken by the convention on that question at all. The roll was called, and as a majority of the members of both branches (not a majority of each branch) answered to their names, the speaker declared that the joint convention was regularly organized according to its adjournment, and they pro- ceeded to vote for a United States senator. After electing first a teller in lieu of the senate teller, who was absent, and also a president pro tempore of the convention, the members proceeded to vote viva voce for a senator of the United States. A majority of the members of the house of representatives voted, but only fifteen senators voted on that occasion. These are the real facts of the case, as they appear from the journals and papers. On the vote to which 1 have just alluded being taken, it was declared that the honorable gentleman who now holds the seat was regularly elected to the. Senate of the United States, and he came here and was admitted. The senate of Iowa met on the Monday morning next after the adjournment of Saturday, and after this alleged election had taken place, and their first act was to protest against it, as done without their authority as a co-ordinate branch of the legislature of Iowa. It will be observed, also, from the facts of this case, that the journals show that on al occasions when the two houses met they met as houses ; a message was sent from one house to the other. The record shows that the senate, preceded by its president, came to the hall of the house of representatives, and the members of the senate had seats assigned them as a co-ordinate branch of the legislature ; and after that was done, at all previous meetings they proceeded to vote. On this occasion there was no senate in session ; but the record shows that several members of the senate, without saying how many, were present. The fact is conceded, I understand, that there were but fifteen members of the senate who voted on that occasion, the whole senate consisting of thirty-one ; and hence, less than a quorum of the senate participated in the election. Mr. Bayard stated the law of the case as follows : On this state of facts the question which I suppose to arise is, whether "the legislature" of a State, under the language of the federal Constitution delegating to the legislature the right to elect senators of the United States, is to be taken to mean the individual members of the legislature, or the body or bodies of which the legislature is composed. I suppose the term, as used in the Constitution, means the bodies of which the legislature is composed. The honorable senator from Georgia, if I appreciate his argument, insists that the power being delegated to the legislature, is vested in the members of the legislature, and that when- ever a majority of the members of the whole legislature under a law, such as that existing in Iowa, vote for a man, he is elected, though one of the co-ordinate branches of that legislature may not vote for him, and may, as a body, refuse to go into an election. Sir., I hold it to be a principle of law, which has, I think, no exception, that where two integral bodies are authorized to do an act, it cannot be done without the consent of those two integral bodies. They must both be present and act in the matter, or there can be no validity in the act done. This is a universal law. I can call to mind no case where a contiary principle prevails, whether relating to legislative action or corporate action. Indeed, in reference to corporations, it has been decided over and over again, that where< there are two integral bodies who must concur in an act, they must both be present and act upon the matter as bodies, not as indi- viduals. The Senate declared Mr. Harlan not entitled to the seat — yeas 28, nays 18. Note. — The debate in this case will he found as follows: on pages 112, 221, 248, 260, 287, 299, Congressional Globe, 34th Congress, 3d session. CONTESTED ELECTION CASES IN CONGRESS. 627 THIRTY-FOURTH CONGRESS, THIRD SESSION. Mr. Cameron, of Pennsylvania. Where there were vague allegations of corruption in the State legislature, it was held by the committee that it was not the duty of the Senate to take cognizance of the charges. IN THE SENATE, March 11, 1857. Mr. Benjamin. I am instructed by the Committee on the Judiciary, to whom was referred the protest of certain members of the senate and house of repre- sentatives of the State of Pennsylvania, alleging certain irregularities and ille- galities in the election of the Hon. Simon Cameron, a senator from said State, to make the following report : The grounds of protest are stated as follows : 1. That there was not a concurrent majority of each house in favor of the candidate de- clared to be elected. 2. That the Senate did not comply with the requirements of the act of 2d July, 1839, by appointing a teller and making a nomination of persons to fill said office, and giving notice of said appointment and nomination at least one day previous to the meeting of said conven- tion. In addition to the two grounds aforesaid, the protest presented by the members of the house of representatives charges — 3. " That the election of the said Simon Cameron was procured, as they are informed and believe, by corrupt and unlawful means, influencing the action and votes of certain mem- bers of the house of representatives of this State ; and they request that an investigation be ordered by your honorable body, not only into the regularity of the said election, but into the charges herein presented, in order that an opportunity may be afforded of submitting the proof upon which they rest." In relation to the first two grounds of protest, the committee are unanimously of opinion that no facts are presented tending in the slightest degree to impair the validity of the election of Mr. Cameron. It is true that the law of Pennsylvania on the subject of the election of sena- tors requires that each branch of the legislature shall appoint one teller, and nominate at least one person to fill such office, and communicate to the other house the names of the persons so appointed and nominated at least one day previous to the joint meeting ; but the same law also provides, that at the hour of twelve, on the second Tuesday in January next preceding the expiration of the constitutional term of a senator, the members of both houses shall meet in convention in the chamber of the house of representatives, and choose a sena- tor viva voce from the persons so nominated as aforesaid ; and also expressly provides that the person who shall receive the votes of a majority of the mem- bers present shall be declared duly elected. From the extracts furnished by the protesting parties, taken from the journals of the two houses, it appears that the two houses did meet in joint convention on the day and at the place appointed by law, and in accordance with resolu- tions passed in each house separately, and that one hundred and thirty-three members, composing the entire legislature of Pennsylvania, were present and voted, and that Simon Cameron received sixty-seven votes, and sixty-six votes were given for all the other candidates ; and that Simon Cameron having thus obtained a majority of the votes of all the members present, was declared duly elected senator. 628 CONTESTED ELECTION CASES IN CONGRESS. It appears from the journal of the Senate that the appointment of a teller and the nomination of candidates, and the communication to the other house of the appointment and nomination so made, all took place on the day, of the election, instead of one day previous to the election, as required by tha law of the State ; but your committee regard this provision of law as purely directory in its na- ture, and are of opinion that a failure to comply with this formality would under no circumstances suffice to vitiate an election otherwise legal and valid ; but where, as in the present case, both houses proceeded without objection from any source to perform their constitutional duty of electing a senator, the neces- sity of complying with any particular forms required by law may fairly be con- sidered as waived by common consent, and it is entirely too late, after the result of the voting has been ascertained, to raise a question as to the mode of proceed- The objection that there was not a concurrent majority of each house in favor of the candidate declared to be elected is equally untenable under the statute of Pennsylvania, and the uniform practical, construction of the federal Constitution for the last half century. The third ground of protest is signed by members of the house of repre- sentatives of Pennsylvania, but not by the members of the senate of that State. It is a general allegation " that the election of the said Simon Cameron was procured, as they are informed and believe, by corrupt and unlawful means, in- fluencing the action and votes of certain members of the house of representa- tives," and the Senate of the United States is asked to investigate the charge. The committee cannot recommend that this prayer be granted. The allega- tion is entirely too vague and indefinite to justify such a recommendation. Not a single fact or circumstance is detailed as a basis for the general charge. Neither the nature of the means alleged to be corrupt and unlawful, nor the time, place,. or manner of using them, is set forth, nor is it even alleged that the sitting member participated in the use of such corrupt means, or, indeed, had any knowledge of their existence. Under no state of facts could your commit- tee deem it consistent with propriety, or with the dignity of this body, to send out a roving commission in search of proofs of fraud in order to deprive one of- its members of a seat to which he is, prima facie, entitled; still less can they recommend such a course when the parties alleging the fraud and corruption are themselves armed with ample powers for investigation. If it be, indeed, true that members of the house of representatives of Pennsylvania have been influ- enced by corrupt considerations or unlawful appliances, the means of investiga- tion and redress are in the power of the very parties who seek the aid of the Senate of the United States. Let their complaint be made to the house of which they are members, and which is the tribuual peculiarly appropriate for conducting the desired investigation. That their complaint will meet the re- spectful consideration of that house your committee are not permitted to doubt. If upon such investigation the facts charged are proven, and if they, in any manner, involve the character, of the recently-elected member of this body from the State of Pennsylvania, the Constitution of the United States has not left the Senate without ample means for protecting itself against the presence of un- worthy members in its midst. In the mean time your committee see no reason for initiating any proceeding on the subject, and submit the following resolution : Resolved, That the Committee on the Judiciary be discharged from the further considera- tion of the subject. The resolution was adopted without a division. Note. — This case will be found in the Congressional Globe, 34th Congress, third session, pages 387-391. CONTESTED ELECTION CASES IN CONGRESS. 629 THIRTY-FOURTH AND THIRTY-FIFTH CONGRESS. Messrs. Brhjht and Fitch, of Indiana. -■ It was claimed iii this case by the memorialists who contested the election of Messrs. Bright and Fitch, that the State senate was not present as an organized body in the joint convention which eleclel those gentlemen. The Senate confirmed their title. to the seats. IN THE SENATE, January 21, 1858. Mr. Bayard, of the Judiciary Committee, submitted a report which gives the preliminary history of this case in the Senate. It is as follows : , The committee find that the protests against the election of the Hon.-Graham N. Fitch as a senator in Congress from the State of Indiana were referred to the Committee on the Judiciary on the 10th of February, 1857, and on the 26th of the same month a resolution was reported by the committee authorizing testimony to be taken both by the protestants and the sitting member. The resolution not being acted upon by the Senate at that session, from the pressure of other busi- ness, the protests were again referred to the committee on the 9 th of March last, at the special session of the Senate, and the same resolution, with a slight amend- ment, reported by the committee on the 13th of the same month, which being taken up on the day it was reported, a debate ensued upon an amendment offered hy the Hon. Mr. Trumbull, of Illinois, and the Senate having on the previous , day resolved to adjourn '< sine die" on the 14th of March, at 1 o'clock, the reso- lution reported by the committee was ordered to lie on the table. The protests against the election of the Hon. Jesse D. Bright, as well as against the, election of the Hon. Graham N. Fitch, having been referred at the present session, and the objections of the protestants and allegations of the sit- ting members being identical in both cases, the committee have adopted and recommend the passage of the resolution reported to the Senate by the commit- tee at the special session on the 13th day of March last, with such variation as is requisite to make it apply to the cases of both the sitting members, as fol- lows : *. Resolved, That in the case of the contested election of the Hon. Graham N. Fitch and the Hon. Jesse D. .Bright, senators returned and admitted to their seats from the State of In- diana, the sitting members, and all persons protesting against their election, or any of them, by themselves, or their agents or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting members touching all matters of fact herein contained, be- fore any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days' notice of the time and place of such proceeding in some public gazette printed at Indianapolis. The Senate adopted the resolution. On the 24th of May Mr. Pugh reported the entire testimony taken, and sub- mitted from the Judiciary Committee the following resolution : Resolved, That Graham N. Fitch and Jesse D. Bright, senators returned and admitted from the State of Indiana, are entitled to the seats which they now hold in the Senate as such senators aforesaid— the former until the 4th of March, 1861, and the latter until the 4th of March, 1863, according to the tenor of their respective credentials. The undisputed facts in the case are thus stated by a minority of the Judi- ciary Committee : The legislature of Indiana, called the general assembly, is composed of a sen- ate of fifty members, and a house of representatives of one hundred members, and 630 CONTESTED ELECTION CASES IN CONGRESS. two-thirds of each house is, by the constitution, required to constitute a quorum thereof. Each house is_ declared to be judge of the election and qualification of its members, and required to keep a journal of its proceedings. No regulation exists by law in Indiana as to the manner in which members of the State senate are to be inducted into office. No law or regulation is there existing providing the time, place, or manner of electing United States senators. It appears by the journal of the senate of Indiana that on the opening of the senate at the meeting of the legislature, January 8, 1857, forty -nine of the sena- tors were present, and that all the newly elected members were duly sworn, took their seats, and continued thereafter to act with the other senators till the close of the session. The only absentee senator took his seat January 13, 1857. Protests were filed contesting the seats of three of the newly elected members, which were afterwards examined and considered by the senate, and they were each found and declared to be entitled to seats, respectively, by majorities more or less numerous, all which is entered upon and appears by the journal of said senate. The State constitution makes it the duty of the speaker of the house of repre- sentatives to open and publish the votes for governor and lieutenant governor in the presence of both housfes of the general assembly. No provision exists by the constitution making such meeting or presence of the two houses a conven- tion, or providing any officers therefor, or authorizing or empowering the same to transact any business whatever, except by joint vote forthwith -to proceed to elect a governor or lieutenant governor in case of a tie vote. Both houses being in session, the speaker notified them that he should pro- ceed to open and publish the votes for governor and lieutenant governor on Mon- day, the 12th day of January, at 2J o'clock p. m., in the hall of the house. Shortly before the hour arrived the president of the senate announced that he would proceed immediately to the hall of the house of representatives ; and thereupon, together with such senators as chose to go, being a minority of the whole number thereof, he repaired to the hall of the house of representatives, and there, in their presence, and in the presence of the members of the house, the votes for governor and lieutenant governor were duly counted and published by the speaker, and A. P. Willard, the then president of the senate, was de- clared duly elected governor, and A. A. Hammon lieutenant governor, of said State. At the close of this business, a senator present, without any vote for that pur- pose/declared the meeting (by him then called a convention) adjourned to the 2d day of February, 1857, at two o'clock. The senate hearing of this proceeding, on the 29th day of January, 1857, as appears by its journal, passed a resolution protesting against the proceedings of said so-called convention, disclaiming all connexion therewith or cognizance thereof, and protesting against any election of United States senators or any other officer thereby. On the 2d of February, 1857, the president of the sen- ate, with a minority of its members, again attended in the hall of the house, and without proceeding to any business, and without any vote, declared the meet- ing (by him called a convention) adjourned until the 4th day of February, 1857, at which time the president of the senate, with twenty-four of its members, went to the hall of the house of representatives, and there they, together with sixty- two members of the house, proceeded to elect two senators of the United States, to wit : Graham N. Fitch and Jesse D. Bright, they each receiving eighty- three votes, and no more, at their respective, elections, twenty-three of which votes were by members of the senate. Against these elections so made, protests by twenty-seven members of the senate of Indiana and thirty-five members of the house of representatives of said State have been duly presented, alleging that, in the absence of any law, joint resolution, or regulation of any kind by the two houses composing the CONTESTED ELECTION CASES IN CONGRESS. 631 # legislature of Indiana providing for holding a joint convention, it is not compe- tent for a minority of the members of the senate, and a majority but less than a quorum of the members of the house of representatives of said State, to as- semble together aud make an election of United States senators. Of the fac^s as herein stated there is no dispute, as we understand. It is now alleged by the sitting senators, respectively, as we understand the- substance of their allegations, in contradiction of the Senate Journal, that the three State senators whose seats were contested were not legally elected and qualified ; that they were without the expressly required credentials, the cer- tificate of the proper and only returning officer, and that they were, notwith- standing, directed to be sworn in by a 1 presiding 'officer chosen for the purpose by the members of the senate designated as republicans, for the clear purpose, illegal and fraudulent, in fact, of defeating an election of senators of the United States. Mr. Pugh, in opening the case in the senate, added somewhat to this state- ment. After the senate had distinctly refused to go into the election of a senator, the speaker made the following announcement from the chair : Gentlemen of the House of Representatives : V The constitution of the State 'of Indiana requires that the speaker shall open and pub- lish the returns of the election for governor and lieutenant governor, in the presence of both houses of the general assembly ; and as the official terms of the governor and lieutenant governor elect commence this day, I have communicated an invitation to the senate to meet the house in this hall, and, in obedience to the constitution, I shall, so soon as the senate appear, proceed to publish the returns for governor and lieutenant governor. Mr. Kerr offered the following preamble and resolutions: Whereas the speaker of this house has' announced his intention to proceed forthwith in this hall to open and publish the election returns for governor and lieutenant governor, in pursuance of the requisitions of the constitution, and has given the senate notice thereof: Resolved, That the house will attend upon the appointment of the speaker in the dis- charge of the duties devolved upon them by the constitution, and that seats be provided for the members of the senate on the right of the speaker's seat. Resolved further, That the senate be informed of the same, and. that the house is now ready to proceed to said business. Which were agreed to. Upon the receipt of this summons from the speaker of the house, Lieutenant Governor Wil- lard announced to the senate that his term of office was about to expire, and required the senators to proceed with him to the hall of the house of representatives, in order to discharge the last duty imposed on him, and one of the most important duties enjoined on them by the constitution of the State. Twenty-six senators followed him ; and a convention of the two houses was thereupon duly organized, the lieutenant governor, as president, in the chair. The speaker of the house proceeded, as appears by the journal, to count the votes for governor. The journal of the house of representatives says: " The speaker of the house of representatives then, in the presence of both houses of the general assembly, proceeded to open the returns of the votes cast for governor and lieutenant governor of the State of Indiana, on the 14th day of October, 1856 ; and, on counting all the votes returned, it appeared therefrom that, for the office of governor Ashbel P. Willard had received 117,981 votes; Oliver P. Morton had received 112,139 votes. "Ashbel P. Willard, having received a majority of all the votes cast, was, T>y the speaker of the house of representatives, in the presence of both houses of the general assembly of the State of Indiana, declared duly elected governor of the State of Indiana, to serve as such for the term of four years from and after the second Monday in January, A. D. 1857." That announcement having been made, Governor Willard resigned the chair of the joint convention to one of the senators, Mr. Tarkington, and thereupon was sworn into office by one of the judges of the supreme court, and delivered his inaugural address. The speaker of the house proceeded further to count the votes for lieutenant governpr, and the journal 'For the office of lieutenant ^governor it appeared, from the returns aforesaid, that Abram A. Hammond had received 116,717; Conrad Baker had received 111,620. "Abram A. Hammond, having received a majority of all the votes cast, was, by the speaker of the house of representatives, in the presence of both houses of the general assembly, declared duly elected lieutenant governor of the State of Indiana for the term of four years from and after the second Monday of January, A. D. 1857. "Abram A. Hammond was then sworn into office by the Hon. Samuel E. Perkins, one of the judges of the supreme oourt." 632 CONTESTED ELECTION CASES IN CONGRESS. The presiding officer of the joint convention, Senator Tarkington, then adjourned the con- vention until the 2d day of February, 1857. In the afternoon Lieutenant Governor Ham- mond, who was thus inducted into office, returned with the twenty-six senators into the senate chamber, and took his seat as president of the body in the presence of all the mem- bers, and delivered his inaugural address. He continued to preside, without dispute as to his title, to the end of the session, and is at present in office. On the 2d of February, 1857, when the time arrived for the adjourned session of the joint convention, Lieutenant Governor Hammond required the senators to repair with him to the hall of the house of representatives pursuant to the adjournment. On this occasion twenty- four senators accompanied him. The convention was then, by the order of its presiding officer, again adjourned until the 4th of February, 1857, at nine o'clock in the morning. When that hour arrived, Lieutenant Governor Hammond required the senate to repair to the house of representatives, in pursuance of the adjournment. But twenty-four senators at- tended on that occasion. Being assembled, I read from the journal of the house : "Wednesday Morning, 9 o'clock, February 4, 1857. " The hour for the meeting of the joint convention of the two houses of the general assembly having arrived, the senate, preceded by the lieutenant governor, appeared within the hall of the house, -where seats were provided for them on the jigh^of the speaker's chair. "Upon calling the convention to order, the president, with the consent of the joint con- vention, appointed Solon Turman secretary thereof, who was duly sworn in as such by the Hon. Samuel Perkins, one of the judges of the supreme court, and entered upon the dis- charge of his duties. " The chairman addressed the convention as follows : " 'Gentlemen: Pursuant to adjournment on Monday, February 2, 1857, we are assem- bled in joint convention, under a provision of the constitution of the State of Indiana, and you will now proceed to choose a United ^tates senator by a viva voce vote, to serve as such until the 4th of March, 1861.' " They proceeded to vote, and it appears that Graham N. Fitch received eighty-three votes> and George G. Dunn two votes. Mr. Fitch was thereupon declared elected by the president of the convention. They then proceeded to choose a senator for the term ending March 4, 1863, and Jesse D. Bright received eighty-three votes, and Richard W. Thompson two votes ; whereupon Mr. Bright was declared elected. The Senate agreed to the resolution reported by the Judiciary Committee — yeas 30, nays 23. In the second session of the thirty-fifth Congress Messrs. Lane and McCarty appeared in the Senate claiming seats as senators from Indiana. All the facts in the case are stated in Mr. Bayard's report from the Judiciary Committee which was made February 3, 1859. It is as follows : The Committee on the Judiciary, to whom was referred the memorial of (he State of Indiana, by her representatives and senators in general convention assembled, representing that it is her wish and desire that the honorable Henry S. Lane and the honorable William Monroe McCarty be admitted to seats in the Senate of the United States, as the only legally elected and con- ■ stitutionally chosen senators of that State, submit the following report : That the honorable Graham N. Fitch, on the 9th day of February, 1857, was admitted by the Senate, on the customary prima facie evidence of his election, as a senator from the State of Indiana, to serve as such until the 4th day of March, A. D. 1861; was qualified, and took his seat as a senator. On the same day resolutions of the senate of Indiana adverse to the legality of his election, and a protest pf certain members of the house of representatives of the same State against the validity of the election, were presented to the Senate ; and the credentials of Mr. Fitch, the resolutions of the senate of Indiana, and the pro- test of the members of the house of representatives against the validity of the election, were referred to the Committee on the Judiciary. The committee, on the 26th of February, reported a resolution authorizing testimony to be taken, both by the sitting members and the protestauts, in rela- CONTESTED ELECTION CASES IN CONGRESS. 633 tion to all matters of fact contained in their respective allegations. This report was ordered to lie upon the table on the 2d of March, 1857 ; and no further ac- tion was had upon the subject during that session. At the called session of the Senate, the papers on file relating to the election of Mr. Fitch were, on the 9th of March, 1857, on motion of Mr. Trumbull, referred to the Committee on the Judiciary^ and on the 14th of March the committee reported a resolution au- thorizing testimony to be taken — slightly variant from the resolution reported at the preceding session. The resolution was on the same day ordered to lie on' the table. The 'credentials of the honorable Jesse D. Bright, elected a senator from the State of Indiana, to serve as such until the 4th day of March, 1863, were presented to the Senate and read on the 2d day of March, 1857 ; and at the called session of the Senate, on the 4th day of March, A. D. 1857, Mr. Bright was qualified and took his seat. At the first session of the present Con- gress, on the 17th of December, 1858, on motion of Mr. Trumbull, the creden- tials of the sitting members from Indiana, together with all papers on file protesting against their right to seats, or relating to their election as senators in Congress by the legislature of Indiana, were referred by the Senate to the Committee on the Judiciary. On the 21st of January, 1858, tlie committee made a report, concluding with a resolution similar to the resolution which had previously been reported in relation to the case of Mr. Fitch, authorizing testi- mony to be taken ; and on the 25th of the same month Mr. Trumbull submitted the views of the minority of the committee. Both the report of the committee and the views of the minority were printed and are appended as part of this report, with a view to the illustration of the questions presented to the Senate, upon which its decision was subsequently made. * On the 16th qf February, 185S, the consideration of the resolution reported by the committee was resumed, and after the rejection of some proposed amend- ments, and the adoption of others, the following resolution was passed by the Senate : Resolved, That in the case of the contested election of the honorable Graham N. Fitch and the honorable Jesse D. Bright, senators returned and admitted to their seats from the State of Indiana, the sitting members and all persons protesting against their election, or any of them, by themselves or their agents or attorneys, be permitted to take testimony on the alle- gations of the protestants and the sitting members, touching all matters of fact therein con- tained, before any judge of the district court.of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days' notice of the time and place of such proceeding in some public gazette printed at Indianapolis : Provided, That the proofs to-be taken shall be returned to the Senate of the United States within ninety days from the passage of this resolution: And provided, That no testimony shall be taken under this resolution in relation to the qualification, election, or return of any member of the Indiana Testimony was subsequently taken by the protestants, which was, together with certain affidavits, presented on behalf of the' sitting members, and docu- mentary evidence referred to the Committee on the Judiciary, and on the 24th of May, 1858, Mr. Pugh, from that committee, reported the following resolution: Resolved, That Graham N. Fitch and Jesse D. Bright, senators returned and admitted from the State of Indiana, are entitled to the seats which they now hold in the Senate, as such senators aforesaid, the former until the 4th of March, 1661, and the latter until the 4th . of March, 1863, according to the tenor of their respective credentials. This resolution and the accompanying documents were on the same day ordered to be printed. The resolution was under consideration in the Senate, and fully debated at several subsequent times, and was finally, after the rejection of several proposed amendments, passed by the Senate without amendment or alteration. In the opinion of the committee, this resolution (no motion having been made to recon- sider it) finally disposed of all questions presented to the Senate involving the 634 CONTESTED ELECTION CASES IN CONGRESS. respective rights of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright to their seats in the Senate as senators from the State of Indiana for the terms stated in the resolution. It appears by the memorial that the legislature of Indiana, at its recent session in December last, assumed the power of revising the final decision thus made by the Senate of the United States, under its un- questioned and undoubted constitutional authority to "be the judge o'f the qualifications of its own members." Under this assumption, it also appears by the journals of the senate and house of representatives of the State of Indiana, the legislature of Indiana, treating the seats of the senator^ from that State as vacant, proceeded, subsequently, by a concurrent vote of the senate and house of representatives^ the State, to elect the Hon. Henry S. Lane as a senator of the United States for the State of Indiana, to serve as such until the 4th of March, 1863, and the Hon. William Monroe McCarty as a senator for the same State, to serve as such until the 4th of March, A. D. 1861. Under this action of the legislature of Indiana those gentlemen now claim their seats in the Sen- ate of the United States. It may be conceded that the election would have been valid, and the claim- ants entitled to their seats, had the legislature of Indiana possessed the authority to revise the decision of the Sedate of the United States that Messrs. Fitch'and Bright had been duly elected senators from Indiana, the former until the 4th of March, 1861, and the latter until the 4th of March, 1863. In the opinion of the committee, liQwever, no such authority existed in the legislature of Indiana. There was no vacancy in the representation of that State in the Senate; and the decision of the Senate, made on the 12th of June, 1858, established finally and (in the absence of a motion to reconsider) irrever- sibly the right of the Hon. Graham N. Fitch as a senator of the State of Indiana until the 4th of March, 1861, and the right of the Hon. Jesse D. Bright as a senator from the same State until the 4th of March, A. D. ,1863. The decision was made by an authority having exclusive jurisdiction of the subject; was judicial in its nature; and, being made on a contest in which all the facts and questions of law involving the validity of the election of Messrs. Fitch and Bright, and their respective rights to their seats, were as fully known and presented to the Senate as they are now in the memorial of the legislature of Indiana, the judgment of the Senate then rendered is final, and precludes further inquiry into the subject to which it relates. There being, by the decision of the Senate, no vacancy from the State of Indiana in the Senate of the United States, the election held by the legislature of that State at its recent session is, in the opinion of the committee, a nullity, and merely void, and confers no rights upon the persons it assumed to elect as senators of the United States. The committee ask to be discharged from the further consideration of the mem6rial of the legislature of Indiana. The following "view« of the minority" set forth the law of the case as urged by the contestants : "February 3, 1S59. Mr. Oollamf.r submitted the following views of the minority: The power of the Senate to judge of the election and qualification of. its own members is unlimited and abiding. It is not exhausted in any particular case by once adjudicating the same, as the power of re-examination and the correc- tion of error or mistake, incident to all judicial tribunals and proceedings, re- mains with the Senate in this respect, as well to do justice to itself as to the States represented, or to the persons claiming or holding seats. Such an abid- ing power must exist, to purge the body from intruders, otherwise any one might retain his seat who had once wrongly procured a decision of the Senate in his favor by' fraud and falsehood, or even by papers forged or fabricated. CONTESTED ELECTION CASES IN CONGRESS. 635 In what cases and at whose application a rehearing will at all times be granted is not now necessary to inquire; but when new parties, with apparently legal claim, apply, and especially when a sovereign State, by its legislature, makes respectful application to be represented by persons in the Senate legally elected, and insists that the sitting members from that State were never legally chosen, we consider that the subject should be fully re-examined, and that neither the State, the legislature, nor the persons now claiming seats, can legally or justly be estopped, or even prejudiced, by any former proceedings of the Senate to which they were not parties. At the first session of the legislature of Indiana, after the present sitting members were declared by the Senate as entitled to their seats, and at the ear- liest time it could take action, it declared their pretended election as inoperative and void, and that the State was in fact unrepresented ; and they proceeded to elect H. S. Lane and William M. McCarty as senators of the United States for said State, according to the Constitution of the United States ; and they send here their memorial, alleging that the present sitting members were never legally elected ; and they show facts, in addition to what was heretofore presented to the Senate, tending, as they consider, to sustain this allegation. The said Lane and McCarty present their certificates and claim their seats. We consider the matters stated in said memorial as true. The said Lane and McOarty have pre- sented their brief sustaining their claim to seats, which is in the words fol- lowing : Brief of W. M. McCarty and Henry S. Lane, submitted to the Judiciary Committee of the Senate. The State is entitled to the office. The legislature is her supreme instrument and donee of the power to elect senators. ' It is the creature of the constitution, which is the chart of its power, vested x>nly in two co-ordinate branches ; a quorum of two-thirds of the members is requisite to give either a legal entity ; each is equivalent in power, with an absolute veto on the power of the other. The legislature is a corporation aggregate, with only such power as its creator has seen fit to endow it with, to be exercised in conformity to the laws of its birth. To the joint wisdom and counsel of these colleges is. the legislative power intrusted. It is not parcelled out to its component elements in integrals, neither is it vested in an amalga- mated body of the two. The one is erected as a barrier to the other. The ordeal of both must be passed. This guaranty against abuse cannot be broken down without destroying one of the safeguards of our government. The sovereign voice is an unit. The power that utters it is an entirety — an invisible, intangible, artificial person. The power is in the organism called "the general assembly," and not in the individual members. It is not the rights or powers of the members, but the delegated trust powers of the State that are wielded in sen- atorial elections or other exercises of legislative powers. Without a quorum of either house it did not exist — without either, the legislature did nbt exist, and without a legislature, no elec- tion would be had. Now, the facts are that a quorum of neither house was present at the pretended election of Messrs. Bright and Pitch, nor even a majority of the senate, nor did either house prescribe the time, place, or manner of electing. It is of the essence of legislative power that its exercise shall be free from all restraint ; each body free to deliberate and act in its duties ; each entitled to its full powers. The facts are that the senate, vpon eight occasions, refused to go into joint convention with the house, and at no time consented. She could not be compelled to merge her individuality, or surrender her veto power, or adopt the joint vote mode of electing senators ; or, in other words, dilute or annihilate her power, upon the mandate of the house, as that would degrade her from an equal to an inferior. On the contrary, she had the right to determine the time, place, and manner, and did do it by resolution, to elect by separate vote, at a proper time, in which the house never concurred. Where diverse duties are imposed, she must determine which are most imperative, and shall have priority. The constitution of Indiana only provides for a joint convention upon the contingency of a tie vote for governor and lieutenant governor. That contingency did not exist ; therefore the convention did not. To say that a duty to form a joint convention creates it is as absurd as to say that the subpoena of a witness works his presence, or the commands of the deca- logue their observance. Failing to get the senate into a joint convention, a false record of that pretended fact was made to be used as evidence, and which has been used as veritable and true, and the abso- lute verity and the unimpeachable quality of a record claimed for the fabrication. 636 CONTESTED ELECTION CASES IN CONGRESS. The resolves of the senate are those of the whole body. The mutinous senators, who usurped the name and power of the senate in said pretended convention, were subjectto arrest by order of that body for absence, and the attempt to nullify the will of the majority by attempting a business at a time, place, and in a manner vetoed by that body, by a resolve, then unvacated and unrescinded. Said convention, if it existed, expired with the duty that called it into life. The president of the senate, when inaugurated governor, his office as president of the senate expired, and with it that of his deputy president. The president not only usurped the power to appoint a clerk — an office not known to the law and void — who only authenticated this pretended election by interpolating it into the journal of the house. This president, whose power expired with that of his creator, arrogated that of adjourning it to a fixed day ; in other words, commanding it to obey his arbitrary rescript ; and, at a sub- sequent one, the more imperious mandate, commanded them to proceed to elect senators, no agreement whatever having been had by the house therefor as to time, place, and manner. We aver that not only did no usage exist in Indiana, but that in no solitary instance was an election had without the consent of both houses, fixing time, place, &c, by law or reso- lution. While said pretended convention was in existence, but adjourned to a fixed day, numerous attempts were made in both houses to create one by the members who voted for Messrs. Bright and Fitch ; thus offering evidence that they did not consider that one had been formed and was in existence. No forced convention could be had. Mutual consent was necessary, and it was never had by a vote, which is the only mode of altering the will o-f a legislative body. The history of joint conventions in Indiana will also show that no other business was ever transacted than that for which it was specially convened. And we insist that the validity of the acts of a joint convention is due to the separate action of the two houses as the general assembly. It is also necessary to the validity of all elections by corporate bodies that notice be given of the time, &c. ; and the journals of neither house show any such notice, or any conventional agreement for the same. Upon the facts and law above no legal election could have been had. To sustain the title of Messrs. Bright and Fitch, the constitution of Indiana, depositing her legislative power in two co-ordinate nouses, must be broken down — that which requires two- thirds of the members to exercise any of her attributes of sovereignty, and that one house cannot coerce the other. Not only is this election in defiance of these injunctions, but in the face of a positive dissent by one branch, armed by the people with an absolute veto. But a presiding officer, who is no part of the legislature, usurped the powers and prerogatives of the legislature ;, all the forms and guarantees with which the people hedged in their legisla- tive servant were disregarded, and it is claimed that the act is as valid as if they had been observed. To sustain Messrs. Bright and Fitch the constitution of Indiana is made a dead letter. Will the Senate, the peculiar guardians of State rights, reared up for that especial .purpose, exclude Indiana from her weight and voice in it by instruments empowered by her 1 Will she be allowed to interpret her own constitution and acts, or will the Senate, under any pre- tence, blot her out of the confederacy, and realize all of those fears portrayed by some of the framers of the Constitution by an absorption of and encroachment upon State rights ? The legislative power enshrines and protects all rights subject to its jurisdiction. Prior to the confederation the several States owed this duty to their citizens. They did not surrender it, but intrusted it to the federal for their better protection, with the right guaranteed them of a voice in the Senate, as a means of enforcing this duty through the federal instrument. We deny that under a constitutional grant of power, with prescribed modes of its exhibi- tion, you can discriminate between elections and laws. The selection of a general, upon whose skill the fate of an army or the country may depend, or of a judge upon whose legal attainments and integrity the lives, liberties, and property of the citizen may depend, is of less moment than some petty law. The same power is as requisite to the creation of the one as the other. But it may be said that this question is res adjiidicata. We deny ,that our rights or title are barred by a decision had before they were created. We deny that the judicial power of the Senate is capable of self-exhaustion. We deny that the political right of the State is capable of annihilation without annihilating the Con- stitution which creates the right. We insist that the right to judge of the election and qualification of members must con- tinue while the term continues. The qualifications are continuing conditions of title. We deny that courts are ever estopped by their own action. We deny that sovereigns are estopped. We deny that Indiana was, prior to this time, a party to the proceedings of the Senate, or had opportunity to allege or elicit the true facts. We deny the power of the Senate, under the power to judge, to create senators for Indiana. We claim for her a superior knowledge of her own acts and grants. We insist that the simple admission of a senator to his seat upon credentials is a decision, and that it was never pretended this precluded his ouster if his title were not good. CONTESTED ELECTION CASES IN CONGRESS. 637 If the Senate have not power to exclude foreign elements at all times, it is not equal to the duties intrusted to its guardianship. And we will not believe that the Senate is the only tribunal on earth whose wrongs, once done, are eternal' and irrevocable. w. m. Mccarty. H. S. LANE. In the case of the State of Mississippi, in the House of Representatives in the 25th Congress, the power to re-examine a decision made on an election of members was fully considered and decided. G-holson and Claiborne were, at a special election held on the proclamation of the governor, chosen representa- tives from that State to a special session of Congress called by the President. At that session exception was taken to them, but after some objection they were aijmjtted to their seats. Their case and papers were referred to the Committee of Elections, who made report, and thereupon, on full and elaborate discussion, it was resolved that they were duly elected members of the 25th Congress, and entitled to their seats. This' was in September. In November following an election was holden in said State, and Prentiss and Ward were elected members of the 25th Congress, who, in December following, presented their credentials and claimed their seats. It was then insisted in that case, as it now is in this, that the decision so before made was conclusive of the right of Claiborne and G-holson to their seats as members of the 25th Congress, and the whole matter was res adjudicata. But on full examination and after full discussion, the former resolution declaring said Claiborne and Gholson as duly elected members of the 25th Congress was resdtnded. We are therefore of opinion that the memorial of the legislature of Indiana should be duly entertained and considered, and the said Lane and McCarty fully heard ; and that if, on full examination and hearing, the Senate find that the present sitting members were not duly elected, the resolution declaring them elected should be reconsidered. And if the Senate find that the said Lane and McCarty were legally elected, they should be admitted to their seats. J. COLLAMEE. L. TRUMBULL. The Senate laid the whole subject upon the table — yeas 31, nays 20 — leaving Messrs. Bright and Pitch in possession of their seats. Note. — The debate in this case will be found as follows : 34th Congress, 3d session, pages 626, 774, 907, 1034, 1040. Special session 35th Congress, pages 385, 392, 396. 35th Con- gress, 1st session, pages 355, 724, 2353, 2981. 35th Congress, 2d session, pages 599, 534, 772, 959. § ' THIRTY-SEVENTH, CONGRESS, FIRST AND SECOND SESSIONS. ( ' Stanton vs. Lane, of Kansas. It was held by the Committee on the Judiciary (unanimously) that Mr. Lane accepted the office of brigadier general, and that by so doing he virtually resigned his seat. Some of these ' facts were disputed in the Senate, and the subject was "indefinitely postponed." IN THE SENATE, August 2, 1861. Mr. Foster, from the Committee on the Judiciary, made the following report : That the contestant and sitting member have appeared before them and sub- mitted, severally, their statements and made their exhibits. The committee find the following facts : That the sitting member, the Hon. James H. Lane, was, by the Executive, appointed a brigadier general in the 638 CONTESTED ELECTION CASES IN CONGRESS. volunteer forces of the United States on the 2Qth of June, 1861; that he accepted said appointment, and was legally qualified to perform its duties. In the opinion of the committee the office of brigadier general under the United States is incompatible with that of member of either house of Congress. By accepting the office of brigadier general, the sitting member, Mr. Lane, vir- tually resigned his seat in the Senate, and it became vacant at that time. On the 8th day of July, 1861, the governor of Kansas gave to the contestant, Mr. Stanton, a commission in due form appointing him a senator of the United States from the State of Kansas to fill the aforesaid vacancy, and by virtue of that commission Mr. Stanton now claims his seat. Your committee recommend the adoption of the following resolutions : 1. Resolved, That James H. Lane is not entitled to a seat in this body. 2. Resolved, That Frederic P. Stanton is entitled to a seat in this body. • The evidence from which your committee find the facts herein set forth is, substantially, the following : War Department, July 15, 1861. Sir : In reply to your inquiry in regard to the appointment of the Hon. James H. Lane as brigadier general, I herewith transmit you documents upon the case : A. Copy of letter to Secretary of War from Adjutant General Thomas. B. Form of appointment, (printed blank.) C. Telegram from Assistant Adjutant General to commanding officer at Fort Leavenworth. D. Letter of acceptance of regiments. The Secretary of War directs mo to state that he himself, after having signed the commis- sion of Hon. James H. Lane, as brigadier general, handed it personally to him in presence of the Adjutant General, at the War department. Kespeetfully, JAMES LESLEY, Jr., Chief Cleric, War Department. Hon. F. P. Stanton. Adjutant General's Office, Washington, July 15, 1861. Sir : In reply to the inquiry of the Hon. F. P. Sfanton of the 13th instant, referred by you to this office, I respectfully state that on the 20th ultimo you directed an appointment as brigadier general of the three-years volunteers to be made for the Hon. James H. Lane, of Kansas. The appointment was made as directed, and handed to you for signature, but was not returned to this office for record. I enclose herewith a blank letter of appointment, similar to the one used in his case. I have the honor to be, sir, very respectfully, your obedient servant, L. THOMAS, Adjutant General. Hon. Simon Cameron, Secretary of Waiu B. War Department, Washington, June 20, 1861. Sir: You are hereby informed that the President of the United States has appointed you _ brigadier general of the volunteer force raised in conformity with the President's proclama- tion of May 3, 1861, in the service of the United States, to rank as such from the 17th day of May, 1861. -Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly. Immediately on receipt hereof, please to communicate to this department, through the Ad- jutant General's office, your acceptance or non-acceptance of said appointment; and, with your letter of acceptance, return to the Adjutant General of the army the oath, herewith enclosed, properly tilled up, subscribed, and attested, reporting at the same time your age, residence, when appointed, and the State in which you- were born. Should you accept, you will at once report by letter for orders to the Secretary of War. Brig. General James H. Lane, United States Volunteers. The original of which this purports to be a copy was not produced before the committee. General Lane stated that it was in the hands of Colonel Weer, at Leavenworth, General Lane also sta t- 1 '^ -w^-ac-assr — — -^—^ -•- p CONTESTED ELECTION CASES IN CONGRESS. 639 respects, between this copy and the original, but no variation was specified which the committee deemed material. C. [By telegraph. J Adjutant General's Office, Washington, D. C, July 10, 1861. Detail an officer to muster in General Lane's brigade. The companies will be mustered when presented, even though less than the standard, and will be filled up afterwards. By order: GEO. D. RUGGLES, Assistant Adjutant General. Commanding Officer, Fort Leavenworth, Kansas, Leavenworth City, Kansas. Official c6py. L. THOMAS, Adjutant General. Adjutant General's Office, July 16, 1861. The above order was given at the request of General Lane. « L. THOMAS, Adjutant General's Office, July 16, 1861. Adjutant General. D. War Department, June 20, 1861. Dear Sir : This department will accept two regiments for three years or during the war, in addition to the three regiments the department has already accepted from the governor of Kansas, to be raised and organized by you in Kansas. Orders will be given to muster the same into service immediately on being ready to be so mustered; and on being mustered, the requisite arms, &c. , will be furnished on the requisition of the mustering officer, who is hereby authorized to make the same. By order of the President : SIMON CAMERON, Secretary of War. General James H. Lane. Official copy. J. LESLEY, Jr., Chief Clerk. I, John D. Clark, justice of the peace in and for Washington county, District of Columbia, do hereby certify that on or about the 20th day of June last General James H. Lane swore to and subscribed the form of the within oath before me, which I duly certified and delivered to him. Given under my hand this 15th July, 1861. JOHN D. CLARK, J. P. By request of Mr. Stanton. I, James H. Lane, appointed a brigadier general in the army of the United States, do solemnly swear, or affirm, that I will bear true allegiance to the United States of America ; and that I will serve them honestly and faithfully against all their enemies or opposers ' whatsoever, and observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles for the govern- ment of the armies of the United States. Swprn to and subscribed before me, at , this day of , 186 . , Justice of the Peace. The following article appeared in the Daily Times, of Leavenworth, on the 26 th of June last: Leavenworth, June 25, 1861. Mr. EDITOR!" On the 20th instant I was duly appointed a brigadier general in the volun- teer force of the Ur,ited States, and thereupon received the following order: 640 CONTESTED ELECTION CASES IN CONGRESS. i War Department June 20, 1861. Dear Sir: This department will accept two regiments for three years or during the war, in addition to the three regiments the department has already accepted from the governor of Kansas, to be raised and organized by you in Kansas. Orders will be given to muster the same into service immediately on being ready to be so mustered; and on being mustered, the requisite arms, &c, will be furnished on the requisition of the mustering officer, who is hereby authorized to make the same. By order of the President : SIMON CAMERON, Secretary of War. General James H. Lane. Fellow-citizens of Kunsas and adjoining States and Territories : The important trust thus confided to me has occurred at a momentous period in our history as a nation. An insurrectionary war, commenced by rebels, in defiance of patriotism and duty, has now approached our border. Treason has raised its bloody hand, almost in our very midst, to strike down our glorious flag, made blessed by the memories of our fathers. The horrors of war are no' longer far removed from us, but have been brought by traitorous hands to our very hearthstones. Impressed with the necessity of prompt and vigorous action in defence of our countiy, its flag, and our homes, the President has authorized the forma- tion of a brigade of five regiments in Kansas. * He has been pleased to place in my hands the honor of leading the gallant sons of the, youngest State of the Union to victory -in defence of that Union of which it has so lately become a part. Treason and rebellion surround us. Loyal American citizens, driven from their homej, are crying to us for protection. The best government in the world is assailed by wicked hands. Men of Kansas and tne surrounding country, in the name of all we hold sacred, and by the authority of our constitutional ruler, I invoke you to rally to the stars and stripes ; come forward and join the regiments accepted from our State. When organized, the watchword of the brigade will be the downfall of treason wherever found, and the upholding of Union men in every State and place. JAMES H. LANE, Brigadier General. General Lane stated to the committee that he wrote the body of the address only, and did not affix his name as brigadier general. The requisitions mentioned in the following letter of General Meigs were read before the committee by General Lane; he stated that he. made them, but did not sign them as brigadier general, nor was that title annexed to his name. The requisitions, not being in possession of the committee, are not inserted in this report. Quartermaster General's Office, Washington City, June 26, 1861. Sirs: I am informed that you are able and willing to supply the regulation uniforms for two regiments, including four companies of cavalry, four companies of mounted artillery, and twelve companies of infantry, subject to regulation, inspection as to work and material, and at the United States prices. ■ ' f This clothing is for two regiments to be raised and commanded by General Lane, of Kan r; sas, and must be delivered in time to reach Port Leavenworth before the 20th July, at which, time the regiment is to take the field. I enclose General Lane's requisitions, three in number, specifying the articles, and indorsed by me for identification. Also a copy of Order No. i3, of November 30, 1859, fixing prices. Be good enough to signify by telegraph yoiir acceptance or rejection of this order, an&ifi rejected return the requisitions by bearer. When ready for inspection a United States inspector will be sent to Boston to look at them. M. C. MEIGS, Quartermaster General. Messrs. Haughton, Sawyer & Co., Boston, Mass. The above is a true copy. M. C. MEIGS, % Quartermaster General. The subject was recommitted to the Judiciary Committee in the second ses- sion, and the resolutions were reported a second time. The Senate postponed the subject " indefinitely." Note. — This case will be found in the Congressional Globe, 37th Congress, second ses- sion, pagijs 185, 222, 291, 336, 359, 363. CONTESTED ELECTION CASES IN CONGRESS. 641 THIRTY-EIGHTH CONGRESS, FIRST SESSION. Wm. M. Fishback and Elisha Baxter, of Arkansas. - In these cases of two claimants to seats in the Senate, the Judiciary Committee held, when the rebellion in a revolted State shall have been so far suppressed that the loyal inhabitants are free to establish their State government upon a republican foundation, and by the aid and not in subordination to the military to maintain the same, it will be entitled to repre- sentation in Congress. Believing that such a state of things did not exist in Arkansas, the committee recommended the Senate not to admit the claimants. The report was adopted tN THE SENATE, June 27, 1864. Mr. Trumbull, from the Committee on the Judiciary, submitted the follow ing report : That the credentials presented are in due form, purporting to be under the seal of the State of Arkansas, and to be signed by Isaac Murphy, governor thereof; and if the right to seats were to be determined by an inspection of the credentials, Messrs. Fishback and Baxter would be entitled to be sworn as members of this body. It is, however, admitted by the persons claiming seats, and known to the country, that, in the spring of 1SG1, the State of Arkansas, through its constituted authorities, undertook to secede from the Union, set up a government in hostility to the United States, and maintain the same by force of arms. Congress, in view of the condition of affairs in Arkansas and some other States similarly situated, passed an act, July 13, 1861, authorizing the President, in case of ah insurrection in any State against the laws of the United States, and when the insurgents claimed to act under the authority of the State, and such claim was not repudiated, nor the insurrection suppressed' by the persons exercising the functions of government in such State, to declare the inhabitants of such State, or part thereof where such insurrection existed, to be in a state of insurrection against the United States; and that, thereupon, all commercial intercourse by and between the same and the citizens, of the United States, except under license and upon certain conditions, should cease and be unlawful so long as such condition of hostility should continue. In pursuance of this act the President, August 16, 1861, issued his proclama- tion declaring the inhabitants of the State of Arkansas, except the inhabitants of such parts thereof as should maintain a loyal adhesion to the Union and the Constitution, or might be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents, to be in a state of insurrection against the United States, and that all commercial intercourse between them and citizens of other States was and would be unlawful, except when carried on under special license, until such insurrection should cease. At the date of this proclamation no part of the State of Arkansas was occupied and controlled by the forces of the United States, nor did the inhabitants of any part of the State, at that time, publicly maintain a loyal adhesion to the Union and the Constitution. Hence, upon the issuing of said proclamation, a state of hostility or civil war existed between the inhabitants of the State of Arkansas and the United States, and there was not at that time any organized authority in Arkansas, loyal to the Constitution, competent to choose or appoint senators of the United States. It is claimed, however, that since that period the State, or the greater portion of it, has been occupied and controlled by the forces of the United States engaged in the dispersion of the insurgents, and that the inhabitants of said State, loyal to the Union and the Constitution, have reorgan- ized their State government, and have the right, through the legislature they have instituted, to choose two senators for said State. H. Mis. Doc. 57 41 642 CONTESTED ELECTION CASES IN CONGRESS. The Constitution declares that " the Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years," and make each house " the judge of the election, returns, and qualification of its own members." In the investigation of the claimants' right to seats, the first question to be determined, is, was the body by whom they were elected clothed with authority to-.elect senators ; in other words, was it, in a constitutional sense, "the legislature of Arkansas?" A question similar to this arose some years since between Bobbins and Pdtter, each claiming to have been elected senator by the legislature of Ehode Island, though by different bodies. In that case the Senate was called upon to decide, and did decide, which of the two bodies, each claiming to be legitimate, was the legislature contemplated by the Constitution. The Supreme Court of the United States, in the case of' Luther vs. Borden, growing out of the political dif- ficulties in Ehode Island in 1841 and 1842, held that "when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority ; and its decision is binding on every other department of the government." The claimants laid before the committee a statement of the circumstances attending the assembling of the body by which they were elected, in which, after detailing the condition of the State while under rebel control, and prior to September, 1863, they say : Upon the advent of the Union army the rebels in the State, guerillas and all, for the most part, left with their armies, leaving about two-thirds of the State comparatively free from guerilla depredationv The Union men came flocking from the mountains, where they had lain for two years, to the federal standard, and nearly every man whom the medical examiners would receive joined the federal army. Those who were rejected, (and their number was enormous, their constitutions having been broken by exposure and their hardships, ) and those whom circumstances prevented from joining the army, found themselves, so far as law was concerned, in a state of chaos. Many of them, living remote from military posts, had not even the protection of military law. Immediately they began to agitate the question of reorganization of their State govern- ment. They first moved in primary meetings, and on the 30th of October, 1863, they held a mass meeting in the city of Fort Smith, in which some twenty counties are said to have been represented, and at which they called upon all the counties in the State to elect delegates (after having elected commissioners of election) to a State, convention, to be held in the city of Little Eock on the 8th day of January, 1864, for the purpose of so amending the constitu- tion as to abolish slavery. Simultaneously with this meeting, meetings were held in a num- ber of other counties. In every single one (in ignorance of the action of others in many instances) they declared for a convention and for the abolition of slavery. Commissioners- of election were first elected, and they held the elections for the delegates. All this was prior to the President's amnesty proclamation. When the convention met forty-five delegates were present, representing about half of the State. (Several of the delegates failed to attend.) They repudiated the rebel debt, State and confederate, abolished slavery, and submitted the constitution to the people for their ratification. They also provided for taking the vote for State and county officers, and mem- bers of the legislature, at the same time with the vote for the ratification of the constitution. The result of those elections was 12,177 for the constitution and 226 against it, an elec- tion of State and county officers, an election of delegates to the lower house of Congress, and a representation in the State legislature from forty-six of the fifty-four counties of the State. The number of persons in Arkansas who voted for President in 1860 was 54,053, less than one-fourth of whom, as appears from the statement of the claimants, took part in the reorganization of the State government. This, how- ever, would not be fatal to the reorganization, if all who were loyal to the Union had an opportunity to participate, and the State was free from military control. Such, however, is understood not to have been the case. The President had not then, nor has he up to this time, recalled his proclamation, which declared the inhabitants of Arkansas in a state of insurrection against the United States, nor was there any evidence before the committee that said insurrection had ceased or been suppressed. At the time when the body which chose the CONTESTED ELECTION CASES IN CONGRESS. 643 claimants was elected, when it assembled, and at this time, the State of Arkan- sas is occupied by hostile armies, which exercise supreme authority within the districts subject to their control. While a portion of Arkansas is at this very time, as the committee are informed, in the actual possession and subject to the control of the enemies of the United States, other parts of the State are only held in subordination to the laws of the Union by the strong arm of military power. While this state of things continues, and the right to exercise armed authority over a large part of the State is claimed and exerted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that republican form of government which the Constitution requires the United States to guarantee to every State in the Union. When the rebellion in Arkansas shall have been so far suppressed that the loyal inhabitants thereof shall be free to re-establish their .State government upon a republican foundation, or to recognize the one already set up, and by the aid and not in subordination to the military to maintain the same, they will then, and not before, in the opinion of your committee, be entitled to a repre- sentation in Congress, and to participate in the administration of the federal government. Believing that such a state of things did not at the time the claimants were elected, and does not now, exist in the State of Arkansas, the committee recommend for adoption the following resolution : Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as sena- tors from the State of Arkansas. On the 29th of June, 1864, the Senate agreed to the reports-yeas 27, nays 6. Note. — The debate in the Senate upon this case will be found in vol. 53, pages 3285 3360, 3368. I THIRTY-EIGHTH CONGRESS, SECOND SESSION. • R. King Cutler and Cha»rles Smith, of Louisiana. Joint action of both houses is necessary before the admission of senators from a State which has been declared in rebellion. The Senate did not act upon the report. IN THE SENATE, February 18, 1865. Mr. Trumbull, from the Committee on the Judiciary, made the following report : The Committee on the Judiciary, to whom were referred, the credentials of R. King Cutler and Charles Smith, claiming seats from the State of Louisiana, ' report: That in the early part of eighteen hundred and sixty-one the constituted authorities of the State of Louisiana undertook to withdraw that State from the Union, and so far succeeded in the attempt as by force of arms to expel from the State for a time the authority of the United States, and set up a gov- ernment in hostility thereto. Since that time the United States, as a necessity to the maintaining of its legitimate authority in Louisiana as one of the States of the Union, has been compelled to take possession thereof by its military forces, and, in the absence of any local organizations or civil magistrates loyal to the Union, temporarily to govern the same by military power. ( 644 CONTESTED ELECTION CASES IN CONGEESS. While a large portion of the State, embracing more than two-thirds of its popula- tion, was thus under the control of the military power, steps were taken, with its sanction, and to* some extent under its direction, for the reorganization of a State government loyal to the government of the United States. The first action had looking to such reorganization was a registration of the loyal persons within the limits of military control entitledto vote under the constitution and laws of Louis- iana at the beginning of the rebellion. The lists thus made up contain the names of between fifteen and eighteen thousand voters, which is represented to be more than half the number of voters in the same parishes previous to the rebellion, and more than two-thirds of the voting population within the same localities at the time the registry was taken. The next step taken in the reorganization of the State government was the election of State officers on the 22d of February; 1864, under the auspices of the military authority acting in conjunction with prominent and influential citizens. At this election 11,414 votes were polled, 80S of which were cast by soldiers and sailors, citizens of Louisiana, who would not have been entitled to vote under the constitution of Louisiana as it existed prior to the rebellion, for the sole reason that they were in the military, service, but who possessed in other respects all the qualifications of voters re- quired by that instrument. The balance, 10,606, were legal voters under the constitution of the State prior to the rebellion. The third step in the reorgani- zation of the State government was to call a convention for the amendment of " the constitution of the State. Delegates to this convention were elected March 28, 1864, under the joint and harmonious direction of the military authorities, and the State officers who had been elected on the 22d February previous. In a paper submitted to the committee by Major Gfeneral Banks he states that dele- gates were apportioned to every election district in the State, both within and beyond the lines, so that if beyond the lines of the army the people of the State had chosen to participate in that election, the delegates might have been received if they had shown themselves loyal' to the government. They were about 150 in number. All elections, subsequent to that for delegates have been ordered and controlled by the representatives of the people. In the organization of the convention it was provided that a majority of the whole number apportioned to the State, if every district within and beyond the lines had been represented, should constitute a quorum for the transaction of business. Every vote in the convention, from a question of order to the ratifi- cation of the constitution, was conducted under this rule, and was approved by a majority of all the delegates apportioned to the State if every district had been represented. The delegates met in convention, in the city of New Orleans, on the 6th day of April, 1864, remained in session till July 23, 1864, and adopted a constitu- tion, lepublican in form, and in entire! harmony with the Constitution of the United States and the great principles of human liberty. This constitution was submitted, by the convention which adopted it, to the people for ratification, on the first Monday of 'September, 1864, and adopted by a vote of 6,836 for, to 1,566 against it. At the same time the vote was taken on the adoption' of the constitution, a legislature was elected, representing all those parishes of the State reclaimed from insurgent control, and embracing about two-thirds of its population.' This legislature assembled at New Orleans on the 3d day of October, 1864, and proceeded to put in operation a State government by providing for levying N and collecting taxes, the establishment of tribunals for the administration of justice, the adoption of a system of education, and such other measures as were necessary to the re-establishment of a State government in harmony with the Constitution and laws of the United States. The State government thus inaugurated has been in successful operation since the period of its establish- ment, and your committee are assumed that if no exterior hostile force is per- CONTESTED ELECTION CASES IN CONGRESS. 645 mitted to enter the State, the local State government is fully equal to the main- taining pf peace and tranquillity throughout the State, in subordination to the Constitution and laws of the United States. The manner in which the new State government was inaugurated is not wholly free from objection. The local State authorities having rebelled against the government, and there being no State or local officers in existence loyal to its authority, in taking the initiatory steps for a reorganization, some irregularities were unavoidable, and the number of voters participating in this reorganization is less than would have been desirable. Yet, when we take into consideration the large number of voters who had. left the State in consequence of the rebel- lion, who had fallen in battle, or were absent at the time of the election, both in the Union and rebel armies, and the difficulties attending the obtaining of a full vote from those remaining, in consequence of the unsettled condition of affairs in the State, and the further fact that the adoption of the amended constitution was not seriously opposed, and therefore the question of its ratification not calculated to call out a full vote, the number of votes cast is perhaps as large as could have been expected, and the State government which has' been reorganized, as your committee believe, fairly represents a majority of the loyal voters of the State. Appended hereto is a copy of "the various orders and proclamations issued in regard to the election of State officers, delegates to the constitutional conven- tion, and members of the legislature, and also a copy of election laws and in- structions relative to the duties of commissioners of elections, issued for the guidance of officers in conducting said election. Messrs. Cutler and Smith, the claimants for seats, were duly elected senators by the legislature which convened on the 3d day of October, 1864, and but for the fact that, in pursuance 'of an act of Congress passed on the 13th day of July, 1861, the inhabitants of the State of Louisiana were declared to be in a' state of insurrection against the United States, and all commercial intercourse . between them and the citizens of other States declared to be unlawful, which condition of things had not ceased at the time of the reorganization of the State government and the election of Messrs. Cutler and Smith, your committee would recommend their immediate admission to seats. . The persons in possession of the local authorities of Louisiana having rebelled against the authority of the United States, and her inhabitants having been declared to be in a state of insurrection in pursuance of a law passed by the two houses of Congress, your committee deem it improper for this body to admit to seats senators from Louisiana, till by some joint action of both houses there shall be some recognition of an existing State government, acting in harmony with the government of the United States, and recognizing its authority. Your committee therefore recommend for adoption, before taking definite action upon the right of the claimants to seats, the accompanying joint resolution : Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States do hereby recognize the government of the State of Louisiana, inaugurated under and by the convention which assembled on the 6th day of ^pril. A, D. 1864, at the city of New Orleans, as the legitimate government of said State, entitled to the guarantee and all other rights of a State government under the Constitution of ihe United States. CONTENTS. ( 1ST THE HOUSE OF REPRESENTATIVES. Page. Twenty-fourth Congress.— NEWLAND vs. GRAHAM 5 Twenty-fifth Congress.— GHOLSON AND CLAIBOENE 9 DOTY vs. JONES •. 16 Twenty-sixth Congress.— NEW JERSEY CASE 19 LNGERSOLL vs. NAYLOR 33 Twenty-seventh Congress. — LOWELL 37 LEVY 41 Twenty-eighth Congress.— MEMBEES ELECTED BY GENERAL TICKET. 47 GOGGIN vs. GILMER 70 BOTTS vs. JONES I 73 T wenty-ninth Congress.— BROCKENBROUGH vs. CABELL 79 FAELEE vs. RUNK.. 87 BAKEE 92 YELL 92 Thirtieth Congress.— MONEOE vs. JACKSON . 98 SIBLEY 102 Thirty-first Congress.— SMITH 107 BABBITT 116 MILLER vs. THOMPSON 118 LITTELL vs. BOBBINS 138 PEEKINS 142 MESSERVEY 148 Thirty-second Congress.— WRIGHT vs. FULLER 152 Thirty-third Congress.— LANE vs. GALLEGOS 164 Thirty-fourth Congress.— TURNEY vs. MARSHALL 167 FOUKE vs. TRUMBULL 167 ARCHER vs. ALLEN 169 MLLLIKEN vs. FULLER 17G OTERO vs. GALLEGOS '».. 177 REEDER vs. WHITFIELD 185 REEDER vs. WHITFIELD :.... 215 BENNET vs. CHAPMAN 204 CLARK vs. SAIL 215 Thirty-fifth Congress.— VALLANDIGHAM vs. CAMPBELL 223 BROOKS vs. DAVIS 244 PHELPS vs. CAVANAUGH 248 FULLER vs. KINGSBURY .' 251 WHYTE vs. HAEEIS :...... 257 CHAPMAN vs. FERGUSON 267 Thirty-sixth Congress.— HOWARD vs. COOPER 275 WILLIAMSON vs. SICKLES ' 288 DAILY vs. ESTABROOK 299 BLAIR vs. BARRETT 308 CHRISMAN vs. ANDERSON - 328 HARRISON vs. DAVIS....: 341 PRESTON vs. HARRIS 346 Thirty-seventh Congress.— SHIEL vs. THAYER 349 BUTLER vs. LEHMAN 353 648 CONTENTS. Page. Thirty-seventh Congress.— CLEMENTS - 366 UPTON - 368 KLINE vs. VEEREE 381 BEACH 391 BYINGTON vs. VANDEVER '. 395 MORTON bs.DAILY 402 SEGAR 414 •SEGAR.^ 436 LOWE 418 FOSTER , 424 flanders and hahn.. - 438 cloud and wing 455 Mckenzie.... « 460 ROGERS 462 PIGGOTT 463 GRAFFLIN 464 HAWKINS 466 Thirty-eighth Congress.— McKENZIE vs. KITCHEN 468 SLEEPER m.RICE 472 GALLEGOS vs. PEREA 481 BRUCE vs. LOAN 482 BIRCH vs. KING ..... 520 PRICE vs. McCLURG 520 CHANDLER 520 KNOX vs. BLAIR. ,.'. 521 Mchenry vs. yeaman 550 TODD vs. JAYNE 555 LLNDSAY vs. SCOTT 569 KLINE vs. MYERS 574 CARRIGAN vs. THAYER 576 SEGAR « 577 FIELD 580 FIELD 583 BONZANO-- 583 MANN 583 JACKS AND JOHNSON 597 IN THE -SEMTE. Twenty-fourth Congress.— Mr. SEVIER 605 Thirty-first Congress.— Mr. SHIELDS 606 Mr. WINTHROP 607 Thirty-second Congress.— YULEE vs. MALLORY 608 Mr. DIXON 611 Thirty-third Congress.— Mr. WILLIAMS 612 Mr. PHELPS 613 Thirty-fourth Congress.— Mr. TRUMBULL 618 Mr. HARLAN ' 621 Mr. CAMERON 627 BRIGHT AND FITCH : 629 Thirty-seventh Congress.— STANTON vs. LANE 637 Thirty-eighth Congress.— FISHBACK AND BAXTER '... 641 CUTLER AND SMIHH 643 INDEX [This Index is frequently more minute than the syllabus in the body of the work. For the sake of economy, and to make the volume a hand-book, the contents have been compressed into a small compass. It contains 32 more cases than are included in " Clark & Hall's " " Contested Elections," and 350 pages less. The reader will find no difficulty, however, in finding a case or any point in it if he will consult the Index. Two or three unimportant errors have been discovered after the body of the work has left the press. The second case of " Segar, of Virginia" precedes the first, and in the syllabus of " Reedcr vs. Whitfield" (pag^e 215) the word "legislature" appears instead of "people."] A. Page. Abstract of votes. — Returned to the office of Secretary of State, though not obtained within the sixty days, can be used as documentary evidence. ( Vallandig- ham vs. Campbell) 229 Adjournment of poll. — See case of Goggin vs. Gilmer 71 Amended return. — An amended return of votes, sent in seven days after the election, was counted, and the certificate given accordingly. House justified the proceeding. (Sleeper vs. Rice) 473 Apportionment act. — When it took effect. See case of Lowe „ 419 Archer vs. Allen, of Illinois. — A ecount of votes by the judges of election gave a majority to contestant. The evidence indicated the same thing. Com- mittee reported in contestant's favor, but the House declared the seat vacant 169 , Arkansas. — Yell . 92 Jacks and Johnson 597 Mr. Sevier 605 Fishback and Baxter 641 B. Babbitt, of Dcseret ■ 1 16 Baker, of Illinois. — Accepted military appointment under the government. Held by the committee that the acceptance vacated, the seat at once 92 Ballot. — The voter (by ballot) cannot be deprived of his right of secresy, and if it is done by judges of election it tends to vitiate the entire proceedings. (Otero vs. Gallegos) - 183,184 Ballot-boxes. — A recount of votes showed a majority in favor of contestant, and the committee reported in his favor. Minority of committee dissented on the ground that the identity of the ballot-boxes was not proved, and that they had not been so kept as to rebut a presumption that they had been tampered with. House adopted conclusions of minority. (Butler vs. Lehman) 353 Eecount of votes not permitted to overturn original sworn returns. (Kline vs. Verree) 386 Application for opening of boxes must be founded on proof sufficient to raise a presumption of fraud or illegality. (Kline vs. Myers) 574 Beach, of Virginia. — Non-compliance with State laws owing to existence of rebellion. Seat not given to claimant *. 391 650 INDEX. Bennet vs. Chapman, of Nebraska. — Allegations of illegalities on both sides. Sitting delegate retained his seat 204 Birch vs. King, of Missouri 520 Blair vs. Barrett, of Missouri. — Charges of fraud and irregularities. Contestant obtained the seat 308 Bonzano, of Louisiana. — Not acted on. Report in his favor 583 Botts vs. Jones, of Virginia. — Contest upon qualification of voters, and illegalities. Mr. Jones retained his seat 73 Bright and Fitch, of Indiana. — (Senate) 629 Brockenbrough vs. Cabell, of Florida, — The validity of the returns not questioned ... 79 Brooks vs. Davis, of Maryland.— Contestant asked the House to make u special investigation, examining witnesses at its bar. Prayer refused 244 Bruce vs. Loan, of Missouri. — Grounds of contest were, interference with the election by the State militia, and improper conduct of officers at certain polls. , Committee recommended that seat be declared vacant. Minority made 1 report in favor of sitting member, and its conclusions were adopted by the House 482 Butler vs. Lehman, of Pennsylvania. — The return judges declared Mr. Butler elected, but one of the returns was subsequently found to be a forgery. The gov- ernor went behind the returns, and by proclamation declared Mr. Lehman elected. Ballot boxes were opened, and report was in favor of contestant. House gave the seat to sitting member 1 353 Byington vs. Vandever, of Iowa. — Sitting member accepted office of colonel of volun- teers, and was sworn into the military service. House vacated the seat.. 395 C. California. — Lowe 418 Cameron, of Pennsylvania. — (Senate) 627 Carrigan vs. Thayer, of Pennsylvania.^Contestant having neglected to take the proper legal steps to procure testimony, asked for special authority. It was refused 576 Census. — A political census too vague for a judicial decision. (Ingersoll vs. Naylor). 34 A municipal census prima facie evidence of facts it contains. {Blair vs. Barrett.) : 316 Chandler, of Virginia. — District within control of rebel authorities. Election re- garded as a nullity 520 Chapman vs. Ferguson, of Nebraska. — Preliminary contest for further time! Main contest upon allegations of fraud and irregularities. Subject laid on table- 267 Chrisman vs. Anderson, of Kentucky. — Contestant alleged that a mistake in the re- turns, discovered after the county boards had sent them in, gave him the majority. Committee went behind the returns and reported in favor of sitting member. House adopted conclusions of committee 328 Citizenship. — (See case of Levy, of Florida Territory) 42 Mexicans, inhabitants of U. S. Territory, under treaty stipulations elected to be Mexican citizens, and afterwards voted for delegate to Congress. The votes were rejected. (Otero ys. Gallegos) 180 Clark vs. Hall, of Iowa. — Allegation of informalities in the county abstract I of votes. Sitting member retained the seat 215 Clements, of Tennessee. — Admitted to seat. Rebellion in Tennessee - . , 366 Cloud and Wing, of Virginia. — The State in rebellion. Claimants not admitted 455 Convention. — A constitutional convention cannot assume legislative functions in pre- sence of the legislature. '(Batch.) 392 INDEX. 651 « .* ' Page. , County.— The act of a legislature does not organize a county. County officers must first be elected. (Daily vs. Estabrook) 299 Credentials.— Refusal of a governor to. grant a certificate does not prejudice right of claimant. (Clements).. 367 Governor of a Territory gave certificate to one candidate, and upon the ground of discovered fraud revoked it and gave, it to another. House approved proceeding. (Morton vs. Daily) J 403 ' B - Daily vs. Estabrook, of Nebraska Territory.— Allegations of fraud and irregularities. Contestant obtained the seat 299 Dacotah Territory. — Todd vs. Jayne 555 Deseret. — Babbitt _ 116 Dixon, of Kentucky.— (Senate) 611 Domicile. — (See Residence.) . Domicile of the father is domicile of the son during his minority, while the son is under the control and direction of the father. (Levy) ......: 47 Doty vs. Jones, of Wisconsin Territory. — Mr. Jones, though elected in 1836, and- taking his seat at that time, claimed that the time did not legally commence till the 4th of March, 1837, and consequently did not end till 1839. The seat was given to the contestant, Mr. Doty 16 E. Election. — (See Judges of Election.) Where the law or custom fixes the election at a particular place, and it is held at another, the vote shall be rejected. (Howard vs. Cooper} 282 A governor cannot delegate to another person the power of fixing the time of an election to fill a vacancy. ( Groffiin) 465 Election officers.— (See Inspectors.) The neglect or refusal to take the oath prescribed by law by election officers is sufficient cause for the rejection of the poll. (Blair vs, Barrett 313 Evidence.— ^(See Testimony.) Abstracts of votes not returned within the sixty days can be used as documentary evidence. ( Vallandigharn vs. Campbell. . 229 Poll lists are not sufficient evidence that a person voted — parol evidence is necessary. A resort to parol proof,*where poll lists are not required to be kept as records, is admissible — ( Vallandigharn vs. Campbell) 229, 230 (New Jersey case) 19 The declaration of a voter as to any matter concerning his own vote is admissible — ( Vallandigharn vs. Campbell.) 230 (Ditto, New Jersey case) 26 (Farlce vs. Runk) 91 (Monroe vs. Jackson) «. .-,, - - 99 ... Hearsay evidence inadmissible — .;> (Wliyte vs. Harris) .--,,.., 264 •i (Ditto, Ingersoll vs. Naylor) f 34 (Blair vs. Barrett) 316 (New Jersey case) 24 Ex parte affidavits, taken after, the case had been fully considered, not admissible. (Blair vs. Barrett) c . 314 652 INDEX. Page- Evidence. — Census returns taken by municipal authorities are prima facie evidence of the facts they contain. (Blair ts. Barrett) 316, 317 Sworn muster-rolls of regiments admitted as evidence of the age of voters, and when made at the time of the election, of the number and names of the men composing the regiment. (Knox vs. Blair) 528, 529 s V. Farlee vs. Bunk, of New Jersey. — The contestant alleged that the sitting member "re- ceived a number of illegal votes, cast by college students. Held that the votes were legal, and Mr. Eunk retained the seat 87 Field, of Louisiana. — Irregularities and a partial election. Claimant did not obtain the seat r 580 Again 583 Fishback and Baxter, of Arkansas. — (Senate) 641 Flanders and Hahn, of Louisiana. — The State was in rebellion, but the claimants re- ceived several thousand votes. There was also a disregard by directory provisions of the law. Committee reported in favor of claimants, and they were admitted 438 Florida Territory. — Levy ... j. 41 Florida. — Brockenbrough vs. Cabell , 79 Yulee vs. Mallory, (Senate) 608 Foster, of North Carolina.— District in rebellion; the election partial, and treated as a nullity . 424 Fouke vs. Trumbull, of Illinois. — The State legislature cannot add to the qualifica- tions prescribed by the Constitution of the United States - . - 167 Fuller vs. Kingsbury, of Minnesota Territory. — Mr. Kingsbury claimed to represent territory «fot within the limits of the State. House denied his claim on the ground that Congress had not established the Territory since the State was admitted-... 251 J G. Gallegos vs. Perea, of New Mexico. — Extension of time asked for and refused 481 General Ticket; — Members elected by general ticket entitled to seats 47 (Ditto, Phelps vs. Cavanaugh) . < 249 Gholson and Claiborne, of Mississippi. — Elected at a special election, under procla- mation of the governor, for an extra session^ Held that they were enti- tled to seats for an entire Congress. At subsequent session two contestants appeared who were chosen at the regular election. They were admitted, the House reversing its first decision „ 91, Goggin vs. Gilmer, of Virginia 70 Grafflin, of Virginia 46' ( H. . Harlan, of Iowa. — (Senate) 621 Harrison vs. Davis, of Maryland. — Allegations of intimidation and violence at the t polls. Also^f frauds and irregularities. Case not reached . . * ' 341 Hawkins, of Tennessee 466 Howard vs. Cooper, of Michigan. — Application for further time — rejected. Main con- test upon allegations of illegal voting, rioting at the polls, &c. Contestant obtained the seat 275 INDEX. 653 I. Illinois. — Baker go Turney vs. Marshall 1@7 Fouke vs. Trumbull ]67 Archer vs. Allen Ig9 Mr. Shields, (Senate) 606 Mr. Trumbull, (Senate) 618 Indiana. — Bright and Fitch .#_ 629 Indian Reservations.— Trespassers on Indian reservations entitled to .vote. House refused to sustain the Committee. (Bennet vs. Chapman) . . 208 Votes on an Indian reservation in Nebraska Territory rejected. {Daily vs. Estabrook) 303 Ditto, (Morton vs. Daily) 408 Informality in a county abstract of votes not sufficient cause for its rejection. (Clark vs. Hall) ...'. 215 Ingersoll vs. Naylor, of Pennsylvania.— Allegations of fraud and irregularities. Un- successful contest 33 Inhabitant. — (See Residence.) To bo an inhabitant of a State is not necessarily to be a resident or citizen. (Piggott) 464 Inspectors of an Election are judges of the qualifications of electors, and if they err ' ' without wrong intent the general result shall not be affected, (Minority Report, in Whyte vs. Harris, which the House adopted) : 263 The law requiring that board of inspectors shall consist of three persons, and but two officiated, the vote was re- jected. (Howard vs. Cooper) , 282 Iowa. — Miller vs. Thompson . 114 Clark vs. Hall ...'. 215 Byhtgton vs. Vandever , 395 Mr. Harlan, (Senate) 621 Irregularities. — Occasional irregularities do not vitiate an election. (McHenry vs. Yea man) 553 J. Jacks and Johnson, of Arkansas. — Eeport in their favor, but riot reached in the House. 597 Judges of Election. — Votes having been .deposited'in the wrong box, by mistake, the judges corrected it. House vacated the seat. (Newlandvs. Graham) 8 A judge of an election cannot usurp the duties of an inspector. (Wright vs. Fuller). 159 Judges of an election, friends of a particular candidate, with- drew at an early hour from the polls. Held that the election ' was not affected thereby. (Harrison vs. Davis) 345 It. ^Kansas Territory. — Reeder vs. Whitfield 185 Do *- 215 ' Kansas.— Stanton vs. Lane, (Senate) 637 Kentucky. — Chrisman vs. Anderson 328 McHenry vs. Yeaman^ 550 Mr. Dixon, (Senate) - 611 654 index. Kline vs. Veree, of Pennsylvania. — Allegations of fraud and illegal voting. Ballot- boxes opened, but the recount was not permitted to overturn the original returns on the ground that they might have been tampered with 38^ Kline vs. Myers, of Pennsylvania. — Contestant failing to substantiate his allegations asked for recount of the ballots. Denied on the ground that such an appli- cation must be founded on proof sufficient to raise a presumption of fraud or illegality 574 Knox vs. Blair, of Missouri. — Allegations of fraud, illegal voting and military inter- ference. Contestant obtained the seat , 521 Li. Lane vs. Gallegos, of New Mexico. — Charges of fraud and illegal practices. Not sustained , , - . . i — 164 Levy, of Florida Territory. — It was alleged that Mr. Levy was no.t a citizen of the United States, but the committee held that the spirit of the naturalization policy of the country had been satisfied ,-•*.- -sv „ 41 Lindsay vs. Scott, of Missouri. — Allegations that disloyal men~voted in contravention of State law. Sitting member retained his seat 569 Little vs. Robbins, of Pennsylvania. — Charges of fraud. Evidence held insufficient- . 138 Louisiana. — Flanders and Hahn 43f. Field 5& ' Field 583 Jjonzano 583 Mann 583 Cutler and Smith, (Senate) .'. 643 Lowe, of California. — The State elected a third representative under a new apportion- ment act, when the previous act limited the number to two. The commit- tee held that the new, or eighth, census did not take effect till March, 1863. House sustained committee '. 1 418 Lowell, of Maine 37 M. Maine. — Lowell 37 Milliken vs. Fuller 176 Mann, of Louisiana ; . . 597 Maryland. — Brooks vs. Davis 244 Whyte vs. Harris ' 257 Harrison vs. Davis 34f r.- Preston vs. Harris 346 Massachusetts. — Sleeper vs. Rice 472-o Mr. Winthrop, (Senate) • 607 McHenry vs. Yeaman, of Kentucky. — Allegations of fraud and military interference. Majorities of sitting member were very large, , and the comtaittee holding, that occasional irregularities should not vitiate an election, reported in his favor. House adopted conclusions of committee 550 McKenzie, of Virginia. — State in rebellion. Election a nullity 460 McKcnzie vs. Kitchen, of Virginia. — Owing to the rebellion election partial and in- valid 468 Messervey, of New Mexico. — Territory not organized, and election a nullity 148 Michigan. t- Howard vs. Cooper 275 Military governor. — Fixed day of election, and members chosen at the time admitted. (Flanders and Hahn) 1 440-446 Military interference. — (See Bruce vs. I,oan) 482. McHenry vs. Yeaman 551 INDEX. 655' Page. Miller vs. Thompson, of Iowa.— Charges of illegal and fraudulent voting on both sides. House vacated the seat. . . ^ 118 Milliken vs. Fuller, of Maine.— Election. Officers irregularly chosen. As no fraud was alleged the election was regarded as valid 176 Minnesota Territory. — Fuller vs. Kingsbury 251 Minnesota. — Phelps vs. Cavanaugh 248 Mississippi. — Gholson and Claiborne 9 Missouri. — Blair vs. Barrett * y 308 Bruce vs. Loan 482 Birch vs. King 520 Price vs. MdClurg w ". 520 Knox vs. Blair 1 521 Lindsey vs. Scott 569 Monroe vs. Jackson, of New York. — Allegations of fraudulent voting on part of pau- pers, convicts, and others. Also of fraudulent conduct on part of election officers. Seat was vacated :..._ 98 Morton vs. Daily, of Nebraska Territory. — Charges of fraud on both sides. Contest unsuccessful 402 If. •aska Territory. — Bennet vs. Chapman 204 *■ Chapman vs. Ferguson - 267 Daily vs. Estabrook 299 Morton vs. Daily -.■ 402 New Hampshire. — Jarert Perkins 142 Mr. Williams, (Senate) - 612 New Jersey. — New Jersey case - 19 Farlee vs. Runk. j 87 New Jersey case. — Members with governor's certificate were not permitted to take part in the organization of the House. After the organization the rival delega- tion was admitted to the seats - 19 Newland vs. Graham, of North Carolina. — The seat was vacated 5 New Mexico. — Smith 107 Messervey , 148 Lane vs. Gallegos * 164 Otero vs. Gallegos - 177 Gallegos vs. Perea 481 * * w York. — Monroe vs. Jackson - '- - 98 Williamson vs. Sickles 288 ' rth Carolina. — Newland vs. Graham - 5 * Foster - - 424 ' Piggot .... - - 463 Notice.— The intent of the law requiring notice to be given specifying the particular grounds of a contest is to prevent any surprise to the sitting member, and to put him on a proper defence. It is not necessary to furnish incumbent with a list of alleged illegal voters. ( Wright vs. Fuller) 154 Ditto. — ( VallandigUam vs. Campbell) - - 229 Ditto.— {Otero vs. Gallegos) --- 177 Two notices may be served upon the sitting member provided both are with- in the time. (Daily vs. Estabrook) 304 Notice served before the result of the election was declared, and the error waived by incumbent. Held that having waived the defect incumbent could not avail himself of it afterwards. ( Todd vs. Jayne) 557 656 INDEX. o. Page. Office. — Holding office in the military service incompatible with occupying a seat in Congress — (Baker) 93 (Yell) 94 (Byington vs. Vandever) 395 Officer. — The disqualification of an officer to effect the legality of an election must be ' co-existent with the election. ■ ( New Jersey case) 30 A contestant can take evidence touching the qualifications, duties, acts, and conduct of officers conducting an election. ( Wright vs. Fuller) 155 Acts of an officer must be presumed -to be correct till proved otherwise. (Goggin vs. Gilmer) 71 Ohio. — Vallandigham vs. Campbell 223 Onus probandi. — Where judges of election neglected to take the oath of office the sitting member must prove that they complied with the terms of the law before the vote can be counted. (Blair vs. Barrett) U15 Oregon. — Sheil vs. Thayer 349 Otero vs. Gallegos, of New Mexico. — Illegalities and irregularities. Seat given to contestant 176 P. Pennsylvania. — Ingersoll vs. Naylor 33 Littell vs. Robbins 138 Wright vs. Fuller '. 152 Butler vs. Lehman 353 K line vs. Verree 381 K lijie vs. Myers 574 Carrigan vs. Thayer 576 Mr. Cameron, (Senate) 627 Perkins vs. Morrison, of New Hampshire. — The legislature redistricted the State, and upon the resignation of a member a new election was held under the new act, the other members of the delegation holding theirseats under the old one. .The new district included town's previously included in another, thus the voters in these towns helped elect two members of the same Congress, exercising their functions at the same time. It was held that the election was valid 142 Phelps and Cavanaugh, of Minnesota. — The election of these gentlemen was prior to the admission of Minnesota into the Union, and was by general ticket. The State constitution provided for the election of three members, though $ but two were returned, in accordance with the act of admission. The claimants were admitted 248 Phelps, of Vermont. — (Senate.) Held a seat under executive appointment. State legislature neglected to fill the vacancy. Senate decided that Mr. Phelps was no longer entitled to the seat 613 Piggott, of North Carolina. — District in possession of the rebels so far as to prevent a fair election 463 Poll-book. — Where poll-books were forwarded to the secretary of the Territory by the county registrar, (the law requiring him to keep them- to be canvassed by the probate judge and three householders, ) held that the election was not void. House did not support committee. (Bennet vs. Chapman).. 205 Poll-book not certified to by any officer of election was rejected. Chris- man vs, Anderson « . 334 iirffflix. 657 , Page. Preston vs. Harris, of Maryland. — Sweeping allegations of fraud. ' Held that they Were not proved .;...... « '. 1.. 346 Price vs. McClwfg, of Missouri .'.:•'.'.' :..'.'.J'..'J....'. 520 «• Qualifications. — Of a member, of Congress as fixed, in the Constitution cannot be ,, changed by the State. :(Turney vs. Marshall). jU.s. 167 .( Trumbull, Senate.). - - . •■. **,.-* . , . - , . , ..-.,.... 618 K. ReederYB. Whitfield, of Kansas. — The contestant denied' the validity of the election on the ground that the legislature which established it was imposed upon the people of Kansas by force. There were tWo contests'; the first upon sending to Kansas for persons and papers, the second upon the merits of ' the question. A Select Committee was sent' to 'Kansas for investigation, and upon its report the seat was declared vacant ....... :" .'...: ..-'; '..'...'. ' 185 Second contest. — Mr. Whitfield' was returned to Congress at a special election, and admitted...-. -----1 '.'.'. ... = .... ..„-'.',.. ,v -' 205 . Representatives. — Elected 'by general ticket for" New Hampshire, 'Georgia, Mississippi, • '. ' and Missouri. The House refused to declare their seats vacant 47 Residence. — Students having made oath that they left their last residence animo non '><■' . . . revertendi, and adopted their college.residence, not certain of its.dura-. ■:■•• tion, were entitled to vote. (Farlee vs. Runk).... ...... ; 91 i!i The legal residence of a pauper is the place from which he entered the almshouse, Monroe vs. Jackson) . ..:,., ,........■.._..., 101 To constitute residence .there must be intention to remain ; but this inten- tion is consistent with a purpose to change the, place of ajjode at some future and indefinite day. . (Miller vs. Thompson) , , . „ » - 120 . If the State law requires that electors shall vote only in counties where they reside, and at designated places*, votes given at oilier places should not be counted. (Miller vs. .Thompson) . * 121 Return of Votes. — (See Supplementary Returns and Ballot-boxes^) . When not, jnade within time specified by law, under certain circumstances, may be counted. (Broofonbrough vs. Cabell) ->. ■„., .... ^ 84 Rogers, of Tennessee. — State in rebellion, Hot admitted...,.., , 462 S- • Segar, of Virginia.— Not a general 'participation in the election of the voting popula- !i ' ; tion. ■Not'admitted....-. 1 -:.! '..:■; ,l.> s.a * 414 "" Second contest. — Facts as in 'the first ease, but claimant 'was admitted.^ 426 Again. — Not admitted l...±.l ,..; 577 Sevier, of Arkansas, (Senate.)— Appointment by the governor of Arkansas to fill a vacancy before it actually occurred .t 605 Sheriff. —Authority -given to a sheriff to appoint writers and open polls; gives him power to appoint but one .writer and open- but one poll. (Botts vs. Jones). 76 Ski'el vs. Thayer, of Oregon. — The State constitution fixed a day for the election of members of Congress. The legislature undertook to fix. a different day. Mr. Thayer claimed his election in November, Mr. Shiel in June, on the day fixed by the constitution, and he was admitted to the seat 349 Shields, of Illinois, (Senate.)— An aliens and not having lived in the country the number of years required by the Constitution: iSeat vacated 606 ■* TT Mis TW A7 /I o 658 INDEX. Page. Sibley, of Wisconsin Territory. — Wisconsin was admitted to the Union as a State, and the people of the Territory not included within the boundaries of the State returned Mr. Sibley as their delegate. He was admitted 102 Sleeper vs. Rice, of Massachusetts. — First' returns elected contestant. An amended return sent in seven days after ihe election changed the result, and Mr. . Eice received the certificate. He retained his seat * 472 Smith, of New Mexico. — Mr. Smith claimed a seat as delegate. As no territorial gov- ernment had been established, he was not admitted * 107 Special Election. — Members elected under proclamation of governor for an extra ses- sion, at a special election, held their seats only till members were chosen at the regular election. ( Gholson and Claiborne) 9 Specifications. — Where particularity was wanting. Held that the statute of 1851 Was not complied with, but contestant was permitted to specify orally the grounds upon which he based the contest. (Kline vs. Veree) 381 State Laws. — The violation of the directory provisions of State laws is not cause for declaring an election null. (Flanders and Hahn ) 443 Stanton vs. Lane, of Kansas. — (Senate) -. . 637 . Supplementary Returns. — Where judges of election discover a mistake after a recount fe ^ their jjjnpplemenfrary retnrnjg entitled to be received. (Archer vs. Allen).. 169 SupplejnemaTitestimony^-Siee Vaaimdtgham vs. Campbell 224 T. Tennesee. — Clements * 366 Rogers 462 Hawkins .*. 466 Territory. — If the corporation of a Territory is dissolved the offices connected there- ' , with expire. (Doty vs. Jones) , 17 A tipntprial government is not merged in the State government, but has a legal existence over the people and Territory outside the'State limits. (Sibley) 105 Territorial government must be established before a delegate is admitted. (Smith) f 109 Ditto. (Babbitt.) — - 116 Ditto. (Messervey. ) i 148 A State having been formed out of a Territory the inhabitants not in- cluded within the State limits are not entitled to send a delegate to Congress. This decision is later than contrary one in case of Sibley. (Fuller vs. Kingsbury) 257 The act admitting a State into the Union relates back and legalizes every act of the territorial authorities exercised in pursuance of the original authority conferred. (Phelps and Cavanaugh.) 249 Testimony. — (See Evidence.) Testimony not given under oath not admissable. (Newland vs. Graham) 7 Testimony violating secrecy of the ballot inadmissable. (Otero vs. Gallegos) 184 Ex parte testimony taken after the sixty days incompetent. (Knox.vs. Blair) 526 (Todd vs. Jayne.) '. 557 Todd vs. Jayne, of Dakota Territory. — Allegations of fraud and illegal voting on both sides. Contestant obtained the seat 555 Trumbull, of Illinois. — (Senate.) The State cannot add to the qualifications of a senator as fixed in the United States Constitution '. . 618 y INDEX. 659 , Page. Turney vs. Marshall, of Illinois.— State cannot .change the qualifications of the repre- sentative as fixed by the Constitntion of the United States 167 * v. ' • Upton, of Virginia 3gg V. Vacancy.— Senator appointed by governor to fill a vacancy cannot retain the seat after the legislature has met and finally adjourned, though it has made no election. (Williams') .*. 612 (Phelps) 613 Senator (by executive appointment) may hold the seat till the elected senator's credentials have been presented. ( Williams) 613 (Winthrop) '. 1 607 Vallandigham vs. Campbell, of Ohio. — The preliminary contest was upon an applica- tion for further time. Decided against application. Main contest upon alleged illegal voting. Contestant obtained the seat 223 Vermont.— Mr. Phelps. (Senate) ... 613 Virginia.— Goggin vs. Gilmer 70 Botts vs. Jones 73 Upton 368 Beach 391 Segar , 414 Segar 426 'Segar 577 Cloud and Wing 455 McKenzie 460 Graffiin • . . 464 McKenzie vs. Kitchen 468 Chandler 520 Voter. — Where it waB alleged that a voter had not been naturalized (though admitted that he was alien born) it was held that the allegation must be proved. (New Jersey case) :... 24 Every voter admitted by the proper officers must be considered legally quali- fied till the contrary is proved. In a particular case, where the State law compelled each candidate to establish the right of challenged voters, this rule was waived. (Botts vs. Jones) 74 a « Votes.— It is not sufficient to doubt the legality of a vote. (New Jersey case) 25 Votes cast in an unorganized county should not be counted. (Daily vs. . Estabrook) 299 W. Whytc vs. Harris, of Maryland. — Allegations of violence at the polls and of numerous irregularities. Minority of the committee held that specifications of the contestant were not sufficiently particular, and that the testimony was for the most part " hearsay.'' The subject was " laid on the table" 257 Williamson vs. Sickles, of New York. — Contestant neglected to take testimony under the law of 1851. Additional sixty days given. No contest upon the merits of the case - - 289 Williams of New Hampshire. — (Senate.) A senator under executive appointment may occupy his seat till the credentials of the person elected to fill the vacancy have been presented to the Senate 613 660 " ' INIJEX. .'.-. ■ ■,, . ; , i| Page- Winthrop, of Massachusetts. — (Senate.) .'.-. .. .'>. 607 Wisconsin Territory.— Doty vs. Jones 1 (.Sibley) 102 , Wright vs. Fuller, of Pennsylvania. — Contestant claimed that sitting member was elected by illegal votes. Committee recommended ibat seat be vacated. ' House laid the subject "on the table'' 152 Yell, of Arkansas. — A member of Congress cannot accept office in the military ser- . .vice without vacating his seat -■. 93 Yulee vs. Mallory, of , Florida ..j.<..> »•- -. ., ,..,. .»>,* 608 KF 4977 A2 I865 Author.. U.S. Congress. House. Vol. Title ...uases or contested election in Congress. Copy Date Bonowct '* Nunc I