[Hinds' Precedents, Volume 1]
[Chapter 26 - General Election Cases, 1840 to 1850]
[From the U.S. Government Publishing Office, www.gpo.gov]

                 GENERAL ELECTION CASES, 1840 TO 1850.


   1. The ``Broad seal case'' in the Twenty-sixth Congress. 
     Sections 791-802.
   2. Cases from the Twenty-sixth to the Thirty-first Congresses. 
     Sections 803-820.\1\


  791. The election case of the New Jersey Members in the Twenty-sixth 
Congress, called the ``Broad seal case.''
  An instance wherein the House, at the time of organization, declined 
to give prima facie effect to credentials in due form, but impeached by 
documents relating to the fact of election.
  The House having historic knowledge of an election contest, referred 
the subject to the committee with instructions, although neither party 
was petitioning.
  The House having, of its own motion, decided to examine an election, 
a copy of the resolution was served on the parties.
  On December 2, 1839, when the House met to organize for the Twenty-
sixth Congress, a question arose as to the right to seats of five 
persons claiming seats from New Jersey by virtue of the certificate 
which each bore from the governor of the State. These credentials were 
in due form and under the seal of the State, whence arose the 
designation of the resulting proceedings as the ``Broad seal case.'' In 
opposition to the claim of the duly certified claimants there appeared 
five other claimants, with documents tending to show their actual 
election. After a long struggle, in the course of which the five 
certified claimants were not permitted to vote for Speaker, the House 
was organized \2\ and proceeded to business, five of the New Jersey 
seats remaining vacant, and there being ten claimants thereto.
  \1\ Additional cases in this period, classified in different 
chapters, are:
  Twenty-eighth Congress, cases of New Hampshire, Georgia, Mississippi, 
and Missouri Members. Section 309.
  Twenty-ninth Congress, Newton, Arkansas. Sections 489, 572.
  Twenty-ninth Congress, Baker and Yell. Sections 488, 572.
  Thirtieth Congress, Sibley, Wisconsin. Section 404.
  Thirty-first Congress, Gilbert and Wright, California. Section 520.
  Thirty-first Congress, Babbitt, Deseret, Section 407.
  Thirty-first Congress, Smith and Meservey, New Mexico. Section 405.
  Thirty-first Congress, Perkins and Morrison, New Hampshire. Section 
  \2\ See section 103 of this work for a more detailed account of the 
proceedings in organization.
Sec. 791
  On January 7, 1840,\1\ Mr. John Campbell, of South Carolina, who was 
chairman of the Committee on Elections, offered under suspension of the 
rules the following 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 [naming the ten 
claimants], all citizens of New Jersey, 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.

  The rules being suspended and the resolution admitted for 
consideration, Mr. John Bell, of Tennessee, proposed a substitute 
amendment as follows:

  That Philemon Dickerson, Peter D. Vroom, William R. Cooper, Daniel B. 
Ryall, and Joseph Kille, who are in attendance claiming to be admitted 
to sit and vote in this House as Representatives from the State of New 
Jersey, are not, and can not be, legally and constitutionally, Members 
of this body, until the regular returns or certificates of election 
granted to five other duly qualified persons by the governor and 
council of said State, in the exercise of the authority vested in them 
by the laws of said State, passed in conformity with the Constitution 
of the United States, shall have been set aside, or adjudged void, upon 
due investigation had, in the form and manner prescribed by the usages 
of the House.
  Resolved, That the House having decided that John B. Aycrigg, William 
Halsted, John P. B. Maxwell, Charles C. Stratton, and Thomas Jones 
Yorke, the persons having the regular and legal certificates of 
election, shall not be admitted to sit in this House and vote as other 
Members until it shall have been established, by sufficient proof, that 
there was no fraud, mistake of the law, or other error, made or 
committed by the governor and council of New Jersey in the returns or 
certificates of election granted as aforesaid; and said decision being 
contrary to the usual practice of the House in such cases, the Speaker 
be directed to notify the governor and council of New Jersey that the 
commissions issued by him, according to the laws of said State, to John 
B. Aycrigg, John P.B. Maxwell, William Halsted, Charles C. Stratton, 
and Thomas Jones Yorke have not been deemed sufficient by the House to 
authorize those holding the same to be sworn in as Members of this 
House; also the proceedings of the House in the premises, to the end 
that the people of said State may be duly informed of the causes which 
have for the present deprived them of the services of five of the 
Representatives to which they are entitled by the law and Constitution.
  Resolved, That the returns and all other papers or testimony in 
possession of the House relating to the five vacant seats in the New 
Jersey delegation be referred to the Committee of Elections; that said 
committee proceed to examine the returns and all other testimony which 
may be submitted to them, according to the rules and orders of the 
House, and that said committee first decide and report to the House who 
are entitled to sit and vote as Members by the returns.

  The resolution and proposed substitute were debated at length.\2\ Mr. 
Campbell, in presenting his resolution \3\ stated that it was usual for 
gentlemen contesting seats to bring their claims before the House by 
petition or memorial. But as they had waited from day to day without 
any movement from either of the parties he conceived it his duty as 
chairman of the Committee on Elections to bring the matter before the 
  Some objection was made to this view. Mr. Isaac Fletcher, of Vermont, 
thought no question could arise until the claimants should present 
themselves to be sworn, meaning evidently the five not having 
certificates, as those having certificates had demanded to be sworn and 
had been refused. Mr. John Quincy Adams, of
  \1\ First session Twenty-sixth Congress, Journal, pp. 185, 187; 
Globe, pp. 105, 106.
  \2\ Globe, pp. 105, 108, 109, 113, 118, 119.
  \3\ Globe, p. 105.
                                                             Sec. 792
  Massachusetts, thought there was no objection to the resolution, but 
conceived that first the Speaker should be directed to inform the 
executive of New Jersey that his commissions had been rejected. Mr. 
Millard Fillmore, of New York, raised a question as to whether or not 
there was any evidence in possession of the House. He did not think 
there could be any unless it had been referred to it. Furthermore, was 
the whole question to be referred, or only the question as to who in 
the first instance were to be regarded as sitting Members.
  Mr. Campbell stated that the credentials were already in possession 
of the House, and that the Committee on Elections would expect to 
decide not only as to final right, but also as to who were entitled to 
the returns.
  On January 13 \1\ the House, without division, ordered the previous 
question, thereby, according to the practice of that date, removing 
from before the House the amendment proposed by Mr. Bell. Thereupon the 
House--by a vote of yeas 110, nays 68--agreed to the resolutions 
proposed by Mr. Campbell.
  792. The ``Broad seal case,'' continued.
  The Elections Committee, at the outset of an investigation, called on 
the claimants to state in writing the grounds of their respective 
  Position of the claimants relating to prima facie right in the 
``Broad seal case.''
  The Committee on Elections met on January 14, 1840.\2\ It was 
constituted as follows: Messrs. John Campbell, of South Carolina; 
Millard Fillmore, of New York; Francis E. Rives, of Virginia; William 
Medill, of Ohio; George W. Crabb, of Alabama; Aaron V. Brown, of 
Tennessee; Charles Fisher, of North Carolina; Truman Smith, of 
Connecticut, and John M. Botts, of Virginia.
  This committee at the outset received from the Clerk of the House 
certain papers: (1) The credentials by the governor; (2) remonstrance 
of J. B. Aycrigg et al. (3) proceedings of the governor and privy 
council of New Jersey; (4) depositions; (5) returns, tabular 
statements, certificate of the secretary of state of New Jersey, etc.
  It was ordered by the committee that the various claimants be 
notified of the organization of the committee, and at a later session 
it was.

  Resolved, That the claimants to the vacant seats from New Jersey be 
requested to lay before the committee, in writing, the grounds of their 
respective claims to said seats, and that they be confined to a 
statement of such facts as they propose to prove by testimony before 
the committee, together with any legal points they may choose to 

  In these statements of grounds the fundamental questions involved in 
the case were set forth.\3\ The claimants who bore the regular 
credentials urged--

  The undersigned, Representatives of the State of New Jersey in the 
Twenty-sixth Congress, protesting, in behalf of the State and 
themselves, against all acts of the other Members of the House of 
Representatives, as well since as before the election of a Speaker, in 
derogation of the rights of said State and of her Representatives, and 
disclaiming, now and ever, all acquiescence therein; and also 
respectfully protesting against so much of the resolution adopted by 
the Committee of Elections on the 15th instant as implies that the 
seats of the Representatives of New Jersey are vacant, and designates 
the undersigned as claimants-in compliance with the request in said 
resolution, lay before the committee the following as the grounds upon 
which they are Members of the House of Representatives, and claim to be 
recognized as such:
  \1\ Journal, pp. 195, 196.
  \2\ House Report No. 506.
  \3\ Report No. 506, pp. 3, 6, 8, 9.
Sec. 792
  That the undersigned have received, and now produce, the commissions 
of the State of New Jersey, under the great seal and signed by the 
governor, constituting them Representatives of said State in the 
Twenty-sixth Congress; which commissions, thus duly authenticated in 
the manner prescribed by the laws of the State, are the only return and 
evidence of membership recognized by said laws.
  That the said commissions were given, in conformity with said laws, 
to the persons whom the governor and privy council, after casting up 
the whole number of votes from the several counties, determined to have 
the greatest number of votes from the whole State.
  That these commissions, by the Constitution of the United States, by 
the laws of New Jersey, by the uniform and unvarying practice of 
Congress since the origin of the Government, by the usage of all 
similar bodies, and by the very principles upon which representative 
governments are organized, are sufficient and conclusive evidence of 
right, until set aside by the House of Representatives in the exercise 
of its constitutional powers.
  That they have never been set aside by any competent authority and 
have never yet been impeached by any legal evidence whatever.
  The undersigned have received notice from Messrs. Philemon Dickerson, 
Peter D. Vroom, Daniel B. Ryall, William R. Cooper, and Joseph Kille 
that they intend to contest the right of the undersigned to seats as 
Members of the Twenty-sixth Congress; and are also informed (though 
without notice from them) that the ground of their claim is that the 
votes of the townships of Millville, in Cumberland, and of South Amboy, 
in Middlesex County, which were not legally returned, should be 
counted; and that these votes, added to those legally returned, would 
give them a majority. The undersigned, therefore, apprise the committee 
that, in any investigation respecting the election beyond the 
credentials by which they appear here as Members, they will claim the 
right to prove that they were duly elected Members of the House of 
Representatives by a majority of all the legal votes at said election, 
as well as by a majority of the votes legally returned.

  The claimants who had not received credentials presented their claim 
in part as follows:

  We claim those seats, and we now propose to prove that at the 
election holden in New Jersey on the 9th and 10th days of October, A.D. 
1838, we received the greatest number of votes from the whole State. 
We, having the majority of votes, respectfully insist that, by the 
returns of the several election officers then made, we were entitled to 
the commissions from the governor, and we are now entitled to occupy 
the seats as Members of this House.
  As there appears to be some difference of opinion as to the meaning 
of the terms elections and returns, as used in the Constitution of the 
United States, it is proper for us at this time to express our views 
upon the subject, in order that we may not be misunderstood.
  We consider that the elections are made by the people, and the 
returns by their agents. The election ceases when the ballot box 
closes; the people have then done their duty and made their election. 
It then becomes the duty of their agents, appointed by law for that 
purpose, to make the returns; and the whole object of those returns is 
to communicate to this House the true result of such election. A 
contest of election involves an inquiry into the legality and 
regularity of the proceedings up to the time of the close of the ballot 
box; and a contest of the returns involves an inquiry into the legality 
and regularity of the proceedings of the different officers, in 
communicating the result of such election to this House. By the laws of 
New Jersey the election officers of each township make their returns to 
the county clerks of the several counties; and they make their lists, 
or returns, to the governor; and upon these he issues his commission.
  For the purpose of establishing the fact that at the election held 
for Members of the Twenty-sixth Congress we received the greatest 
number of votes from the whole State, we offer the certificate of the 
secretary of state of the State of New Jersey, under his seal of 
office, showing that upon an examination of the returns in his office, 
including the returns of the townships of South Amboy, in Middlesex, 
and Millville, in Cumberland County, we had a majority of all the votes 
in the State; and as the foundation of that certificate we also offer a 
certified copy of the statement of votes upon which the governor and 
his council made their determination, embracing the votes of all the 
State except those of South Amboy and Millville; and also copies of the 
returns from those two townships, as filed in
                                                             Sec. 793
the office of the secretary of state, and referred to by him in his 
general certificate; and as further evidence of the returns of those 
two townships we offer copies of the returns made by the officers of 
the elections of those townships to the clerks of the said counties, 
and by those clerks duly certified under their respective hands and 
seals of office.
  These papers were laid before the Clerk of this House before the 
meeting of Congress; and are now offered as legal evidence of the fact 
that we received the greatest number of votes from the whole State.
* * * * * * *

  In further support of our claim, and for the purpose of making its 
truth and justice more manifest, we offer to the committee, for their 
consideration, a sworn copy of the minutes of the proceedings of the 
governor and his privy council upon this case, by which it appears that 
the returns from South Amboy and Millville were laid before the council 
by the governor himself, and were referred to a committee, with the 
other returns from the State; that they were rejected because they were 
not transmitted by the clerks of the said counties of Cumberland and 
Middlesex, and for no other reason; and that they proceeded to count up 
the votes of the State, excluding those from the said townships of 
South Amboy and Millville, and determined that Mr. Aycrigg and his 
associates were duly elected Members of the Twenty-sixth Congress, 
although it appeared from the returns before them that the votes of 
said townships, if counted, would have changed the result.
* * * * * * *

  By the laws of New Jersey the governor and his privy council shall 
``determine the six persons who have the greatest number of votes from 
the whole State;'' ``which six persons the governor shall forthwith 
commission under the great seal of the State.'' Such are the words of 
the act. The governor in his opinion to his privy council uses the 
following language: ``What does the law direct the governor to lay 
before the privy council? The said lists, referring manifestly to the 
lists transmitted by the county clerks, which have been mentioned 
immediately before. What are the governor and privy council to do with 
the lists thus laid before them? They are to cast up the votes. When 
this is done, what are they to determine? Who are entitled, under all 
the circumstances, to seats in Congress? No; but they are to determine 
the six persons who have the greatest number of votes. No language can 
be plainer. Was it ever intended by our laws to make the governor and 
his privy council the arbiters of an election? There is no power 
conferred on us to examine a single witness, to send for persons or 
papers, or to take one step toward a judicial investigation. If we may 
go behind the return of the county clerks to those of the township 
officers, why should we stop there? We may by the same authority and 
with equal reason undertake to examine the proceedings of those 
township officers at the polls. Who has ever dreamed of the governor 
and privy council of New Jersey setting themselves up to decide on any 
of these matters? They always have been and, from the very words of the 
act, must be confined to the clerk's returns and to the duty of casting 
up the votes.'' Here we have the law and the governor's opinion on that 
law; from both of which it is most manifest that the duty of the 
governor and council was to determine, in the first place, the six 
persons who had the greatest number of votes from the whole State. It 
is upon that determination that the governor is authorized to issue his 
commission; and yet, upon looking into their own record, it appears 
that they did not determine the six persons who had the greatest number 
of votes from the whole State, but, in the teeth of the governor's 
opinion and of the law, they determined who, ``under all the 
circumstances, were entitled to seats in Congress,'' and made their 
adjudication in the following words: ``We do determine that John B. 
Aycrigg, John P. B. Maxwell, William Halsted, Joseph F. Randolph, 
Charles C. Stratton, and Thomas Jones Yorke are duly elected Members of 
the Twenty-sixth Congress of the United States,'' when they knew, and 
their own record shows, that those gentlemen had not the greatest 
number of votes and that they were not duly elected Members of the 
Twenty-sixth Congress of the United States. We may at this time with 
great propriety repeat the words of the governor: ``Who ever dreamed of 
a governor and privy council in New Jersey setting themselves up to 
decide any of these matters?''

  793. The ``Broad seal case,'' continued.
  In the ``Broad seal case,'' the Elections Committee, while admitting 
the prima facie effect of regular credentials, at first decided to 
investigate only final right.
Sec. 793
  In the examination incident to the ``Broad seal case'' the Elections 
Committee held votes received by authorized officers acting legally as 
prima facie good.
  Instance wherein testimony in an election case was, in the absence of 
law or rule, taken by direction of the committee.
  The committee, after the statements of the parties had been filed, 
proceeded to determine the scope of the inquiry. The minority views, 
filed later and signed by Messrs. Fillmore, Botts, Crabb, and Smith, 
give a resume \1\ of these proceedings:

  These statements were not completed and laid before the committee 
until the 23d day of January, and it was obvious from an examination of 
them and of the resolution of the House referring the matter that the 
committee must pursue one of two courses--that they must either make a 
preliminary report awarding the vacant seats to one set of claimants 
until the whole subject could be investigated and the final right 
determined, or proceed to a full and thorough investigation of the 
subject and decide upon the merits of the whole case at once.
  Eight members of the committee out of nine were in favor of 
submitting a preliminary report by which the vacant seats would have 
been filled, but they differed as to the basis on which the report 
should be founded. We entertained the opinion that it should be based 
on the legal returns of the only authority recognized by the laws of 
New Jersey as authorized to grant the return, that being the highest 
prima facie evidence of an election that could be presented, and which 
it has ever been the practice of Congress and of all other legislative 
assemblies to treat as conclusive in the first instance; and 
accordingly one of our members submitted the following proposition:
  ``Resolved, That this committee will now proceed to ascertain and 
determine who have the returns, according to the Constitution of the 
United States and the laws of New Jersey, which will authorize them to 
occupy the contested seats from that State until the question of 
ultimate right can be determined.''
  Other gentlemen of the committee, differing with us in opinion, 
thought that the executive commissions should be entirely overlooked, 
and that it was the duty of the committee to proceed at once to 
ascertain which party had received a majority of all votes, good and 
bad, given at the polls, and were therefore entitled to the returns, 
and submitted amendments to that effect.
  This view of the subject we deem utterly fallacious, but time will 
not permit us to enter into the argument. The consequences resulting 
from this novel doctrine are well illustrated by the scenes of disorder 
and confusion which resulted from its application at the present 
session--scenes in a high degree discreditable to the House and 
endangering the peace of the country and which must greatly impair the 
confidence of all right-thinking people in the perpetuity of our free 
  Upon a careful examination of the laws of New Jersey we ascertained 
that the governor and privy council were mere ministerial officers, 
charged with a certain specified duty, plainly set forth, viz, to 
ascertain and determine which six of the persons voted for received the 
greater number of votes according to the returns made by the clerks of 
the several counties of the State. That the individuals who were 
commissioned by the governor of New Jersey as the Representatives of 
that State had received the greatest number of votes thus returned 
according to law was a fact not disputed or denied.
  Finding this difference of opinion, however, to exist in the 
committee as to the basis of a report, the mover of the original 
proposition modified the same with the view of reaching the sense of 
the committee, and merely proposed, in general terms, that a 
preliminary report should be made designating the individuals who 
should occupy the vacant seats until the question of ultimate right 
could be determined, thus manifesting a disposition to have the seats 
filled as the committee and the House might determine according to 
their sense of justice and propriety. But, from an apprehension, as we 
presume, that they could not succeed in the untenable ground they had 
taken, that the report should be made favorable to those who barely 
obtained a majority of all the votes, legal and illegal, given at the 
election, the modified resolution was likewise resisted and a 
substitute offered which proposed to inquire who were entitled to be 
returned as Members-elect, evidently on the ground of good and bad 
votes, for when it was proposed to insert an amendment which would make 
the case turn on the majority
  \1\ Report No. 506, p. 274.
                                                             Sec. 793
of legal votes such amendment was strenuously resisted and carried only 
by the casting vote of the chairman. This resolution, as ultimately 
adopted, was as follows:
  ``Resolved, That this committee will now proceed to ascertain which 
five of the ten individuals claiming the five vacant seats from New 
Jersey received a majority of legal votes, and therefore are duly 
elected Members of the Twenty-sixth Congress from that State, according 
to the Constitution of the United States and the laws of New Jersey.''
  Thus it will be perceived that the committee came to an early 
determination to investigate the ballot boxes and ascertain who were 
entitled to the seats on the ground of having received a majority of 
legal votes, in which decision we acquiesced.

  The minority then go on to describe how the committee made decisions 
that the certificates of the governor of New Jersey were prima facie 
evidence that the holders were entitled to the seats; but, after 
reconsidering a former action, finally agreed on the following:

  Resolved, That the credentials of the governor of New Jersey are 
prima facie evidence that they who hold them are entitled to seats, 
but, being questioned on the ground that all the votes polled were not 
counted, this committee will now proceed to inquire and ascertain who 
of the ten claimants for the five contested seats received the greatest 
number of votes polled in conformity with the laws of New Jersey, at 
the late election for Members of Congress in that State.
  Resolved, That all votes received by authorized officers acting in 
conformity with the laws are prima facie legal; but it being alleged 
and offered to be sustained by evidence that pluralities were obtained 
by means of illegal votes and frauds perpetrated on the ballot box, 
this committee will admit evidence as to the truth of these 
allegations, and inquire who of the claimants received the greatest 
number of legal votes, in conformity with the Constitution of the 
United States and the laws of New Jersey, and therefore are entitled to 
occupy, as Members of the Twenty-sixth Congress, the five contested 
seats from that State.
  Resolved, That the adoption of the above resolutions does not 
preclude this committee from reporting the facts and testimony, with 
its opinion thereon, for the consideration of the House, at any stage 
of its proceedings that it may deem it expedient to do so.
  Resolved, That a copy of the foregoing resolutions be communicated to 
each of the claimants to the vacant seats from New Jersey, and that 
they be informed that the committee has reconsidered and indefinitely 
postponed the resolutions furnished them on the 28th instant, and that 
this committee will hear them at their committee room on Saturday, the 
1st of February, proximo, at 10 o'clock in the forenoon, on the subject 
of the measures which should be adopted to obtain the evidence 
applicable to the inquiry before the committee.
  The parties accordingly met again in the committee room, and, after 
they were severally heard, the committee adopted the following 
  Resolved, That we will now take up the testimony which has been 
referred to this committee in the New Jersey case, and if, during the 
investigation of the subject, it shall be desired by either party to 
furnish additional testimony, that then the parties be allowed such 
reasonable time as may be determined by the committee, to take such 
additional testimony, in the manner prescribed by the laws of New 
Jersey relating to contested elections, unless the parties agree upon 
some other mode which may be sanctioned by the committee.
  Thus, it will be perceived, that before a paper purporting to be 
testimony in this case was opened by the committee, it was resolved to 
decide upon its competency alone; and it was further resolved that time 
should be allowed either party requiring it, to take additional 
testimony, with a view, as we supposed, of ascertaining the whole truth 
touching the merits of the election.

  The minority views describe briefly how the committee took up and 
decided on the admissibility of evidence, rejecting much as ex parte. 
Then, at the suggestion of the parties, the committee agreed to the 

  Whereas the people of the State of New Jersey are at present deprived 
of five-sixths of their representation in the House of Representatives, 
and it being highly expedient that a decision of the question between 
the several claimants to the five contested seats in the House 
aforesaid be made as speedily
Sec. 794
as practicable consistent with due investigation and deliberation, and 
the contestors having alleged that, if the committee go into an 
investigation of the question of who received the plurality of legal 
votes they desire time also to take testimony; and J. B. Aycrigg, 
William Halsted, and others, having made application to the committee 
for time to take further evidence to maintain their right to seats in 
said House: Therefore
  Resolved, That the chairman be requested to notify the several 
claimants aforesaid that this committee will not proceed to a final 
decision upon the question of ultimate right depending before them 
until the second Monday in April next, at which time the committee will 
expect the proofs to be closed and will not receive any testimony taken 
by either of the parties after that time, but nothing in this 
resolution shall prevent this committee at any time before that day 
from taking up and deciding said case, if the parties shall declare 
themselves ready with all their testimony.

  The minority views then proceed:

  In justice to the chairman of the committee it should be stated that 
he indicated to the committee an anxious wish that the time allowed for 
the completion of the proofs should be abbreviated, with a view to 
bring the case, upon its merits, before the House at as early a day as 
practicable; and three of the undersigned, in deference to the opinions 
and feelings of the chairman, cooperated with him in an effort to 
procure a reconsideration of the above resolution, which was defeated 
by the votes of the other members of the committee.
  Nothing now remained to be done but to carry out the original plan as 
exhibited in the said resolutions, and accordingly the following 
resolution was offered by one of the undersigned and adopted by the 
  ``Resolved, That the parties to the contested election from the State 
of New Jersey be, and they are hereby, authorized to take the testimony 
of such witnesses as either of them may desire to examine, by 
depositions in conformity with the laws of that State in force at the 
time of taking any such testimony, on the subject of contested 
elections in similar cases: Provided, That the parties may, by any 
agreement under their hands, regulate the mode of giving notice and 
other matters of form at their discretion.''
  Soon after the adoption of these resolutions the commissioned Members 
left the city for the State of New Jersey to finish taking their 
evidence, where they still remain. We did not anticipate, nor had we an 
intimation from any quarter, that further proceedings in the case were 
contemplated, either in the committee or the House, until the 
expiration of the time allowed the parties to complete their evidence.

  794. The ``Broad seal case,'' continued.
  Instance wherein the House ordered its committee to report on prima 
facie right before ascertaining final right.
  Instance wherein the House, disregarding the certificate of the 
governor, ascertained prima facie right on the returns of the local 
  The Elections Committee, in determining prima facie right, declined 
to open evidence relating to final right.
  The Elections Committee declined to consider ex parte evidence in 
determining prima facie right.
  Overruling the Speaker, the House, in 1840, decided to receive as a 
matter of privilege a report in an election case. (Footnote.)
  At this point in the proceedings action by the House intervened. On 
February 14 \1\ Mr. Campbell reported from the Committee on Elections 
this resolution:

  Resolved, That the Committee of Elections be authorized to have such 
papers printed, under its direction, as may be thought necessary to 
facilitate its investigations into the subjects referred to its 
  \1\ Journal of House, p. 409.
                                                             Sec. 794
  Mr. Cave Johnson, of Tennessee, proposed an amendment so that the 
resolution should read as follows:

  Resolved, That the Committee of Elections be authorized to report to 
this House such papers and such other proceedings as they may desire to 
have printed by order of the House; and that they be instructed also to 
report forthwith which five of the ten individuals claiming seats from 
the State of New Jersey receiving the greatest number of [lawful] votes 
from the whole State for Representatives in Congress of the United 
States at the election of 1838 in said State, with all the evidence of 
that fact in their possession: Provided, 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.

  On February 28,\1\ after long consideration, the word ``[lawful]'' 
was inserted on motion of Mr. Fillmore by a vote of yeas 97, nays 96, 
and then the resolution as amended was agreed to, yeas 103, nays 90.
  These instructions, when received in the Committee on Elections, were 
a subject of disagreement. The majority of the committee in their 
report say: \2\

  When the proposition to instruct was originally introduced as an 
amendment to the application with which the committee had come before 
the House, its intent was clear that a report should be immediately 
made of the names of those who had received the greatest number of 
votes at the late Congressional election in New Jersey. If anything 
more was wanting to explain the meaning of this proposition, it is to 
be found in the proviso which was added, and which clearly indicated 
that the action which the House was moved to demand did not contemplate 
an interference with the course adopted by the committee for the 
``taking of testimony and deciding the case upon the merits of the 
  Under these circumstances, if the proposition to strike out the word 
``forthwith'' and insert the word ``lawful'' had fully succeeded there 
would still have remained that prominent clause of proviso, and it 
might well have been understood that, notwithstanding the omission of 
the word ``forthwith,'' the House desired an immediate report, and 
that, notwithstanding the insertion of the word ``lawful,'' the House 
contemplated that the report should be independent of testimony now in 
the process of being obtained for the purpose of deciding the election 
upon its merits.
  Upon what basis, then, could such a report be constructed? Manifestly 
not upon the partial, inconclusive, and incompetent testimony as to the 
legality of votes now in the possession of the committee. The House can 
not have contemplated a report involving an investigation of the ballot 
boxes without allowing time or opportunity for that investigation to be 

  The majority finally conclude that the House meant that a report be 
made on ``the prima facie case upon the returns of the local officers 
of the several polls.''
  The minority contended that the insertion of the word ``lawful'' had 
so modified the resolution that the committee would be justified in 
reporting as to the final right, the word ``forthwith'' meaning only 
that it should be done without unnecessary delay.
  The minority also contended that before reporting certain testimony 
described in the following proposition should be examined:

  That inasmuch as the depositions offered to this committee to prove 
that the poll of South Amboy was not held in conformity to law were 
rejected by this committee on account of a defect of notice in taking 
said depositions; and Mr. Smith, a member of this committee, has this 
morning presented a sealed package, directed. to the Speaker of the 
House of Representatives of the United States, to the care of the Hon. 
J. Campbell, chairman of the committee, purporting to be depositions 
taken in the case of the New Jersey election, under a resolution of 
this committee postponing the examination into the ultimate right of 
the claimants until the second Monday in April next; and which the said 
Mr. Smith asserts, on the authority of a letter received from Mr. 
Halsted, relates to the manner of conducting the election at South 
Amboy, and the validity of the poll there holden: Therefore,
  \1\ Journal, pp. 465, 469.
  \2\ Report, No. 506, p. 256.
Sec. 794
  Ordered, That the said sealed package be sent forthwith to the 
Speaker, to the end that it may be opened; and that this committee will 
proceed to examine said new depositions and to determine whether said 
poll was held in conformity with law.

  But the committee declined by a vote of 5 to 2 to agree to the order.
  The majority of the committee say that on the inconclusive testimony 
in their possession it would be unsatisfactory and unjust to look 
beyond the face of the poll, and continue:

  It is proper, however, to state that should all the votes proved to 
be illegal by competent testimony be deducted from those who received 
the greatest number at the polls which appear to have been held in 
conformity with law the result would not affect the right of any 
candidate to a seat.
  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 
  Upon this branch of the case the claimants holding the governor's 
commissions claim--
  First. 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 elections, 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.
  Second. 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 election, duly chosen, was unlawfully prevented 
from acting, and another substituted in his place, who acted, and 
signed the list, etc.; 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. 
(See Doc. E.)
  Third. 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 township, 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. (See Document F.)
  It is also claimed that the polls held at the townships of Newton, 
Hardenton, 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.

  The majority of the committee then proceeded to ascertain the result 
on the face of the polls, adding the votes of Millville and South Amboy 
to the returns on which the governor's certificates had been issued, 
and found:

  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 ``five 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.''
                                                             Sec. 795
  The minority of the committee say:

  The majority, without considering the proofs admitted to be 
competent, the tendency of which was to show that unlawful votes had 
been polled for noncommissioned claimants, settled ``forthwith'' the 
principles upon which the report should be made, and peremptorily 
instructed the chairman to add the votes of Millville and South Amboy 
to those counted by the governor in privy council, thus resolving the 
duties of the committee into the solution of an arithmetical problem of 
the most simple character.
  But there is an additional and most imposing fact which we desire to 
present for the consideration of the House before they decide this 
important question.
  At the moment the committee had the report under consideration, and 
before any vote was taken thereon, the chairman had in possession a 
sealed package of depositions, addressed to the Speaker of the House, 
to the care of the chairman, and indorsed ``depositions in the New 
Jersey case,'' forwarded by the commissioned claimants, and which the 
majority of the committee refused to send to the Speaker, to the end 
that the same might be opened and taken into consideration in the 
decision of the question then pending in committee. On examination we 
find that the said depositions establish and prove illegal votes cast 
for the noncommissioned claimants, which added to other unlawful votes 
already proven are sufficient to give one of the commissioned claimants 
[Mr. Stratton] his seat, on the ground of receiving a majority of 
lawful votes cast at the polls.
  The following table will show how many illegal votes the commissioned 
Members must prove (if the votes of Millville and South Amboy be added) 
to establish their right over their opponents to the vacant seats, viz:

  Mr. Stratton over Mr. Kille                                   31
  Mr. Maxwell over Mr. Ryall                                    59
  Mr. Halsted over Mr. Dickerson                               117
  Mr. York over Mr. Cooper                                     135
  Mr. Aycrigg over Mr. Vroom                                   199

  The proofs laid in the first instance before the committee would have 
established both Messrs. Stratton and Maxwell in their seats had the 
same been in all respects competent.
  The injustice of refusing to examine the new depositions is the more 
apparent from the facts that they were taken as substitutes for other 
depositions on the same subject, which had been rejected under 
circumstances hereinbefore detailed. Their weight and effect are 
greatly enhanced by the fact that the contesting party was present and 
cross-examined the witnesses.

  Therefore the minority recommended that the report be recommitted.
  On March 5 \1\ Mr. Campbell submitted the report of the committee.\2\ 
On March 10 \3\ the House, by a vote of yeas 111, nays 82, agreed to a 
resolution declaring that the five claimants recommended by the 
majority of the Committee on Elections

are entitled to take their seats in the House of Representatives, as 
Members of the Twenty-sixth Congress; and that the Speaker of the 
House, on their presenting themselves, qualify them as such: Provided, 
That nothing herein contained shall prevent the investigation into said 
election from being continued in the manner heretofore authorized by a 
majority of the Committee on Elections on the application of the five 
claimants of said State.

  At various times thereafter the gentlemen thus seated appeared and 
took their seats.
  795. The ``Broad seal case,'' continued.
  An early instance where partisan bias was charged against the 
Elections Committee.
  Instance wherein, in the decision of an election case, each vote was 
treated as a distinct controversy.
  \1\ House Journal, p. 520; Report, No. 506: Journal, p. 1284.
  \2\ Journal, pp. 569-578; Globe, p. 256.
  \3\ House Report No. 541, pp. 693, 733.
Sec. 795
  In the ``Broad seal case'' the Elections Committee delegated the 
arrangement of testimony to the parties.
  Where poll lists were not preserved as a record parol proof was 
resorted to for showing that the vote was actually cast.
  Hearsay evidence rejected in an inquiry as to whether votes were 
actually cast at the polls.
  The Committee on Elections continued the investigation, and on July 
16, 1840,\1\ Mr. Campbell submitted the report of the majority of the 
committee on the question of final right, and at the same time Mr. 
Smith presented the minority views, signed by himself and Messrs. 
Fillmore, Botts, and Randall. The minority views especially show much 
partisan feeling, especially in the portion where it is declared that 
``the conclusions and judgment of the majority of the committee are 
wholly unworthy of the sanction of this House, and of the confidence of 
the country.'' \2\ The investigation of the committee related to nearly 
600 distinct cases of votes alleged either to have been cast unlawfully 
or to have been refused unlawfully. The most minute and tedious course 
was adopted, the case of each individual vote being treated as a 
distinct controversy, testimony being admitted and arguments made as to 
it. 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.
  The report says, as to the sifting of evidence:

  In the hope that the grounds of the controversy might be more 
strictly defined and narrowed, and that the testimony scattered through 
so many separate 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 arrangement of the parties, delivered into their hands, and the 
committee continued the investigation of other cases pending before 
  Although, from this arrangement, much greater delay ensued than the 
committee anticipated, the subsequent investigation proved that, 
without the assistance 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 
from many different witnesses, but at various and distant times and 
places, to which no clew would else have been furnished.
  Nevertheless, impatient of delay, the committee passed resolutions 
calling on the parties on the 13th and 20th of May, and, finally, on 
the 2d of June.
  The committee having previously, under the power granted by the 
House, ordered the papers to be printed, the final investigation was 
commenced on the 3d of June, with a volume of evidence of nearly 700 
printed pages.

  The majority further say as to the rule adopted for arriving at a 

  As applied to alleged unlawful votes, it presents two affirmative 
propositions: First, that the vote in question was not a lawful vote; 
and, second, 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 parole 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 declarations of the alleged voter, as to 
the fact of his having voted, have been uniformly rejected.
  \1\ Mr. Campbell claimed the right to make this report as a matter of 
privilege. Mr. Speaker Hunter ruled against this contention; but on 
appeal the House overruled the decision, yeas 124, nays 39. So the 
report was made as a matter of privilege. (Journal, pp. 1281, 1284.)
  \2\ See also Section 785 for a similar charge.
                                                             Sec. 796
  796. The ``Broad seal case,'' continued.
  An admitted ballot is prima facie good, and the burden of proof is on 
the party objecting that the voter is an alien.
  A vote being received as sound, the mere fact that the voter is alien 
born does not compel the party claiming it to prove naturalization.
  Distinction between a controversy at the polls as to a vote and a 
controversy before the Elections Committee where the voter is not a 
  In a controversy as to votes objected to because the voter is an 
alien, the party attacking the qualification may be required to prove a 
  The inquiry naturally divided itself into several branches:
  1. The lawfulness of the votes, with respect to the qualifications of 
the persons casting them or claiming the right to cast them, involving 
inquiries as to--
  (a) The nature of the proof as to aliens.
  The majority say on this point:

  A minority of the committee were of opinion that it was sufficient 
for the party objecting 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 evidence 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 of record having common-law 
jurisdiction, a clerk, and seal, in the Union, could possibly 
  Without minutely criticising the argument, it is deemed proper to 
inquire to what practical consequences the rule would lead, if it be 
fully admitted; for the proposition is to be taken, not as a mere 
abstract annunciation 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 
displaced, 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, something like the judgment of a court of competent 
jurisdiction has been pronounced 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 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, p. 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 that the voter, whose vote has been received by the 
officers of the election, to be of the disqualified or the qualified 
class? 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 can not 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 report continues:

  But it may be asked, Does not the presumption originally arising from 
the fact of foreign birth acquire additional strength, and may it not 
overturn the decision at the polls, when neither the voter
Sec. 796
nor the party claiming the benefit of his vote before the committee 
adduces here any evidence of his naturalization? If the voter refuses 
to testify to his own disqualification (as he legally may) how can the 
party impeaching his vote proceed 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 naturalization 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 
conclusion; 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 committee or the House. If it were, the mere reference 
of 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 would be required to come forward and submit 
themselves to another challenge, and a new affirmation of their 
  Again, if the voter is, to all intents and purposes, a party to the 
proceeding 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 halfway. 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 3d Douglas, 219.)
  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 
  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 naturalization 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.

  The minority in their views discuss this question thus:

  To enable the House to appreciate the action of the committee on the 
cases to which we are about to refer, we would remark that it was 
conceded by all the Members that the reception of a vote by the 
election officers raised a presumption in favor of the legality of such 
vote. Early in our deliberations we adopted a resolution declaratory of 
this principle, the justice and propriety of which must be
                                                             Sec. 796
apparent to all, but very soon after we commenced scrutinizing the 
votes we perceived that there was a radical difference of opinion in 
the committee touching the use which should be made of this 
  The undersigned are persuaded that the only effect which can be given 
to the reception of a vote at the polls is to throw the burden of proof 
on the party objecting to its legality. But the majority seemed 
disposed to carry the principle much further and to convert the 
presumption into a ``swift witness'' in favor of the opposite party. If 
a credible witness was adduced, who proved the fact of illegality by 
his positive oath, the majority would confront such witness with the 
presumption and would give it all the efficacy appertaining to 
testimony under oath; and thus, balancing the oath of the living 
witness against the presumption, they would come to the conclusion that 
nothing was proved. Nay, more. The majority, strange as it may seem, 
held that the presumption was so strong that it imposed on the party 
excepting to a vote the burden of proving a negative. When Messrs. 
Aycrigg and others objected to a vote on the ground of alienage, they 
were required to prove, not merely that the voter was an alien born, 
but that he had not been naturalized--a task which, in many cases, is 
wholly impracticable.
  The undersigned can not omit noticing one curious circumstance, and 
that is, that this presumption seldom visited the committee room except 
when one of these parties was endeavoring to establish the illegality 
of votes.
  If it appeared at all when the other party was making the same 
effort, the undersigned must say they were scarcely conscious of its 
* * * * * * *

  Any general rule, the effect of which, though administered with 
impartiality, should be to increase the embarrassment would obviously 
operate in their favor; and we ask what rule could be better adapted to 
the end suggested than that of giving an inordinate effect to the 
reception of a disputed vote at the polls? 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 absurdity that the party 
objecting on the ground of alienage must, under all circumstances, 
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 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 can not 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 submit to 
the evil if the rule itself be founded in law. But we insist that it is 
not so founded. No precedent can be 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 can not be put to the 
question, He can not 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 manifestly 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 Practice of Elections, p. 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 committee on elections. We disclaim all 
design of charging the course adopted by the majority to corrupt 
intentions, but we 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 aggravated the evil which that rule was adapted
Sec. 797
to inflict, for they held votes to be lawful on account of the absence 
of proof of nonnaturalization 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, naturalization itself.
  In many cases the committee held votes to be lawful where all the 
above circumstances were united against the voter.

  797. The ``Broad seal case,'' continued.
  Although the State law did not disqualify a person non compos mentis 
as a voter, the Elections Committee examined.
  (b) As to nonresidents.
  The report cites the law of New Jersey and states that in settling 
the various questions they endeavored ``to apply the well-settled 
principles of law.''
  (c) As to persons non compos mentis.
  The report says:

  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 the most distinct and indubitable proof, and 
none such being adduced, his vote was not disturbed.

  798. The ``Broad seal case,'' continued.
  Where a State law made payment of tax evidence of property 
qualifications, the House did not count the ballot of a voter whose tax 
another paid.
  (d) As to the qualifications of voters as taxpayers.
  The fundamental law of New Jersey required the voter to be ``worth 
$50 proclamation money, clear estate, within the colony.'' And by 
statute it was further provided that--

  Sec. 5. Every person who shall, in other respects, be entitled to a 
vote, and who 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 conducting 
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, who has not either 
paid a tax, or whose name is not enrolled on the duplicate, as 
aforesaid, except in case of persons removing from one township, 
wherein they have paid a tax, to another township in the same county, 
or of persons who have been inadvertently overlooked by the assessor; 
in either of which cases, such persons claiming a vote, and being in 
other respects qualified, shall be admitted; and in the case of persons 
who have been inadvertently overlooked by the assessor, as aforesaid, 
their names shall be immediately entered on the tax list.

  The report continues:

  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
                                                             Sec. 799
tax, the committee have not considered him a ``qualified voter in 
respect 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 taxpayer, and his vote was deducted.

  The minority say:

  The undersigned have felt much embarrassment in giving a construction 
to these sections, and they can not but feel much surprised that the 
good people of New Jersey should have suffered the invaluable right of 
suffrage to be involved in all the perplexity and doubt of absurd and 
contradictory phraseology; but, on full consideration, they are 
disposed to give these sections a construction conforming to what they 
understand to be the practice of the State; and to hold that, if a 
person has either paid a tax, or has had his name enrolled on any 
duplicate list of the last State or county tax, he is entitled to the 
elective franchise, as he is also in the excepted cases specified in 
the last section.
  It is usual, in New Jersey, for a person whose name has not been 
enrolled, and who desires to exercise the elective franchise, to appear 
at the polls and to demand the enrollment of his name; which is always 
done, under the idea that it has been ``inadvertently overlooked'' by 
the assessor; and thus (by the payment of a trifling tax) the elective 
franchise is put within the reach of every citizen of New Jersey. But 
it would obviously be improper to enroll a pauper; it can not be 
supposed that the name of such a person was ``inadvertently 
overlooked,'' and it would be absurd to call on a man to pay taxes who 
can not do so; and, if he could, to whom the money would be forthwith 
returned for his support. Hence, we deem it settled that paupers can 
not vote in New Jersey. This brief exposition of the laws of that State 
will enable us to contrast some of the cases under this head; and the 
House can judge whether the committee were any more successful in 
administering ``equal and exact justice'' to the parties in this than 
they were in the other branches of this inquiry.
  799. The ``Broad seal case,'' continued.
  The voter not being compelled to testify for whom he voted, proof of 
general reputation as to political character and party preferences was 
accepted to determine the vote.
  Votes improperly rejected were, in absence of direct testimony, 
counted on proof of the general political action of the voter.
  2. The deduction of unlawful votes from the poll, and the 
determination as to votes improperly rejected.
  The majority say:

  It being satisfactorily ascertained that an unlawful vote was counted 
at that 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, voluntarily 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 complexion 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 
circumstances of such declarations being considered as connecting 
themselves with the questions of credibility and sufficiency. In every 
instance where the proof, under all the circumstances, was not 
sufficient to produce conviction, the vote has been left 
  The same principles have governed the committee in regard to the 
votes decided to have been improperly rejected at the polls.
  The undersigned would observe, that, early in the investigation, a 
question arose as to the character of the proof which should be 
received and deemed sufficient to enable them to appropriate such of 
the votes as they might determine to have been unlawful. In New Jersey 
the vote by ballot obtains, as in most of the States of the Union. If 
an unlawful vote be cast, how are we to ascertain who had the
Sec. 800
benefit of such vote? It is obvious that in many cases it will be 
impracticable to obtain positive proof. In some cases, the voter may be 
willing to appear and disclose the fact under oath; in other cases, it 
may be in the power of the party to produce a witness who can swear to 
the character of the vote given; but in many more, no evidence of that 
description can be obtained to ascertain the fact in controversy. It 
seems to the undersigned to be indispensable to receive secondary 
evidence to this point, such as the declaration of the voter, either at 
the election or soon after; and also proof of his political character, 
which, when well defined, will be a sufficient guide to the truth. But 
we ought to be very careful not to receive and act upon evidence of an 
equivocal character, which may have been created or manufactured for 
the occasions. In adopting these views, there was a good degree of 
unanimity in the committee; but the majority have been by no means 
consistent in carrying them out.

  800. The ``Broad seal case,'' continued.
  The charge that an election officer was not legally chosen not being 
fully established, the committee declined to reject the poll.
  Failure to transmit to a county clerk certificate of the choice of an 
election officer is not a reason for rejecting the poll.
  3. As to the conduct, qualifications, and competency of election 
  (a) The majority say:

  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 election 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 disqualified, 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 
  ``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 election in said township according to law.''
  After having heard and considered the testimony in support of the 
above allegations, 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 election; 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 10 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.''

  One inspector at South Amboy being disqualified, three persons were 
placed in nomination for the vacancy. As to whether or not James M. 
Warne, one of these, was elected substantially in conformity with law, 
there was a conflict of testimony. After weighing the evidence the 
majority conclude that the contestants failed to establish their 
allegations that the South Amboy election ``was held by officers not 
chosen according to law.''
                                                             Sec. 801
  The minority say as to this point:

  In the township of South Amboy, a whig inspector was duly elected by 
the majority of the people present at the time prescribed bylaw, but 
was not permitted to act. The moderator of the town meeting, after such 
choice, took it upon himself to proclaim a new election; and he kept 
the same open until a sufficient number of his political friends were 
assembled to secure the election of the administration candidate. This 
of itself would seem to us to be sufficient to render the election, so 
far as this township is concerned, irregular and void.

  (b) The majority further say:

  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 prescribed by law,'' although proved, is 
believed by the committee to be entirely inadequate to affect the 
validity of an election legally held. Surely, it can not be that one of 
the dearest rights of Jerseymen--a right which, more than any other, 
distinguishes the citizen of a representative Government from the 
subject 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 reputable freeholders, transmitted to the clerk of 
common pleas of the county of Middlesex 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 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 common pleas, either before or during the 
election; and the omission to do so afterwards, can not 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 coexistent with the 

  801. The ``Broad seal case,'' continued.
  An election being honestly conducted, the reception of illegal votes 
does not vitiate the poll.
  No fraud being shown, a poll is not rejected because the ballot box 
does not contain as many votes as are proved by oath of voters.
  (c) The majority further say:

  The fourth and fifth allegations are, in substance, that the judges 
of the election 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 election was fairly, honestly, and legally 
conducted; and the proof is insufficient to establish the fact that a 
single illegal vote was knowingly received.

  (d) The majority further say:

  Mr. Halsted and associates also claim to set aside the poll held at 
the township of Saddle River, in the county of Bergen, because eight 
votes, at least, given for them by persons legally entitled to vote, 
were fraudulently 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.
Sec. 802
  On the part of Messrs. Vroom and his associates it was contended that 
the election was fairly and legally conducted, and that the ballot box 
was so secured that its violation was impossible. They also offered 
explanations to cover nearly the whole discrepancy. The majority of the 
committee say that they--

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 
election as the best evidence produced, and to sustain the legality of 
the Saddle River poll.

  The minority say as to this poll:

  It appears, from proof which we deem quite satisfactory, that 32 
votes were deposited in the ballot box at Saddle River for the 
opposition candidates; the voters themselves swear to it in positive 
terms; and yet, from some cause, when the votes came to be counted off, 
the number appeared to be only 24. We do not intend to cast an 
imputation upon the inspectors of the election; they are, doubtless, 
respectable men; but the House can hardly fail to be impressed with the 
fact, that evidence is adduced as to the good character of the 
inspectors, but none at all as to that of the clerk; and as he had 
charge of the ballot box, he can, doubtless, explain the rule of 
reduction which seems to have operated so mysteriously in Saddle River 

  802. The ``Broad seal case,'' continued.
  Discussion as to duties of returning officers with reference to 
technical requirements of law.
  4. As to the conduct of certain returning officers.
  The majority in their report say:

  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 unqualified disapprobation of 
the honest and intelligent of every party.

  The minority say:

  Much censure has been cast upon the clerks of Cumberland and 
Middlesex, because the return of votes from the townships of Millville 
and South Amboy were not included in their general lists forwarded to 
the governor. With how little justice, the following facts will show. 
The Millville return was made to the clerk on the 13th of October, 
``between the hours of 10 and 11 in the afternoon;'' and as the law of 
New Jersey is positive that the return shall be made to the clerk 
``before 5 o'clock of that day,'' and he is then, at 5 o'clock, to make 
his ``general list,'' to be transmitted to the governor, of course he 
could include in that general list no returns except such as were 
received ``before 5 o'clock.'' The clerk had no discretion; he 
proceeded according to law, and is in no way censurable; the blame, if 
any, belongs to the election officers.
  The return from South Amboy was made by a judge and inspector, and by 
James M. Warn, representing, himself as an inspector; his name, 
however, as such, does not appear in the list of town officers, nor was 
there any certificate or other evidence of his election as inspector 
filed with the clerk, as the law requires. If he had been duly elected 
to supply a vacancy (which we insist he was not), the law requires the 
certificate of such election to be filed with the clerk within three 
days. None such was ever filed. The certificate was presented to the 
clerk ten days after the election, and after the general list had been
                                                             Sec. 803
made out and sent to the governor. Of course, as the return was not 
made according to law, the clerk could not receive it; especially in a 
case like South Amboy, where the election of this very inspector was 
disputed as illegal and fraudulent, and where he and those who acted 
with him decided to receive alien votes, and actually did receive a 
number of such. The evidence adduced to sustain the charge of fraud 
against the clerk of Middlesex very clearly disproves the whole charge; 
and his conduct, like that of the clerk of Cumberland, was strictly in 
accordance with the law, and in nowise censurable, unless the refusal 
to violate the law, in order to receive an illegal return, including a 
number of alien and illegal votes, be censurable.

  The majority of the committee, as a result of their application of 
the enunciated principles, recommended 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 admitted the election of Messrs. Vroom and Cooper, but 
contended that the contestants were elected to the remaining three 
  On July 16,\1\ under the operation of the previous question, the 
resolution proposed by the majority was agreed to, yeas 102, nays 22. 
Many members declined to vote, apparently with the intention of 
breaking a quorum.
  803. The Pennsylvania election case of Ingersoll v. Naylor, in the 
Twenty-sixth Congress.
  Two claimants appearing with conflicting credentials at the time of 
organization, the Members-elect examined and determined which should 
  Instance wherein citizens of a district, by memorial, participated in 
an election contest.
  Before the enactment of a law, the Elections Committee, having power 
to compel testimony, delegated the duty of taking depositions.
  Before the enactment of the law, the Elections Committee directed 
testimony to be sealed and transmitted to its chairman.
  When the House met for organization on December 2, 1839, and the 
clerk of the last House began the call of the roll of Members-elect, 
which at that time was made up in pursuance of usage and not in 
accordance with law, a question arose when the State of New Jersey was 
reached. This question caused a prolonged controversy, during which the 
assembled Members-elect chose Mr. John Quincy Adams, a Member-elect 
from Massachusetts, chairman. As the proceedings went on it appeared 
that there were participating in the proceedings Messrs. Charles Naylor 
and Charles J. Ingersoll, claimants from the same district in 
Pennsylvania. Each had what purported to be credentials, and on 
December 10 and 11,\2\ a question came as to which of the two should be 
allowed to participate. After examination of the credentials and law of 
Pennsylvania the assemblage decided that Mr. Naylor should be permitted 
to vote and that Mr. Ingersoll should not vote.
  On December 17,\3\ when the House had finally elected a Speaker, the 
oath was administered to Mr. Naylor with the other Pennsylvania 
  \1\ Journal, p. 1297.
  \2\ First session Twenty-sixth Congress, Journal, pp. 11-14, 20; 
Globe, pp. 38-40.
  \3\ Journal, p. 84.
Sec. 804
  On January 24, 1840,\1\ Mr. George M. Keim, of Pennsylvania, 
presented the petition of Mr. Ingersoll setting forth that he was 
elected to Congress from the Third district of Pennsylvania; that Mr. 
Naylor was not elected, and praying an investigation. Mr. William S. 
Ramsay, of Pennsylvania, also presented a petition of citizens and 
electors of the said district complaining of fraud and illegality in 
the election of Charles Naylor, and praying for an investigation.
  These petitions were referred to the Committee on Elections.
  On February 24 \2\ the House, by resolution, authorized the Committee 
on Elections in this case ``to send for persons and papers.''
  On February 26 \3\ the Elections Committee, in accordance with the 
usage at that time, and in the absence of any law prescribing the 
manner of conducting election contests, adopted a resolution 
authorizing the parties to take testimony ``before Boys Newcomb and 
William Grennell, esqs., commissioners,'' or such persons as they might 
appoint, providing for notice between the parties, etc., and also 
containing the following further provisions:

  And that, if any witness or witnesses shall refuse to attend, upon a 
subpoena for that purpose being served upon him or them, by order of 
the commissioners or commissioner, or, attending, shall refuse to 
testify, the name or names of such witness or witnesses shall be 
reported forthwith to this committee, by the commissioners or 
commissioner, for such further proceeding as this committee shall 
  And that all testimony taken by virtue of this resolution shall be 
certified, sealed up, and transmitted by the commissioners or 
commissioner to the chairman of this committee on or before the 3d day 
of April next.

  804. The case of Ingersoll v. Naylor, continued.
  Hearsay evidence is rejected in considering an election contest.
  No illegal vote being shown, the poll was not rejected because of 
presumptions created by a census and arithmetical calculations.
  An election may not be impeached by comparison with the result at 
another election in the same constituency.
  In the absence of fraud or injustice irregular action by election 
officers does not vitiate the poll.
  On July 17,\4\ Mr. Millard Fillmore, of New York, submitted the 
report of a majority of the committee, five of the nine Members 
concurring in it. Three members of the committee signed minority views, 
and one member of the committee did not act in the case and concurred 
neither in the report nor the views.
  The majority reported a resolution confirming the title of Mr. Naylor 
to the seat, while the minority proposed that the seat be declared 
  Two questions were involved in the case.
  1. Mr. Ingersoll alleged that in Spring Garden and in five wards of 
an incorporated district called the Northern Liberties there were 
frauds and irregularities, and 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.
  \1\ Journal, p. 228.
  \2\ Journal, p. 429.
  \3\ Report No. 588, p. 1.
  \4\ Journal, p. 1300; Globe, p. 537; Report No. 588, pp. 545, 551.
                                                             Sec. 804
  The majority say that a large amount of hearsay evidence was brought 
in to sustain this allegation, but the committee rejected it, saying 

  The rule upon which the committee reject all this hearsay evidence 
they conceive too well settled and too clear and just to require any 

  Mr. Naylor's majority was 775. The majority say:

  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, requiring 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 came under the general 
denomination of heresay evidence, of the most loose and unsatisfactory 
kind; and besides when contrasted with the other authentic evidence it 
becomes utterly worthless.

  The report also condemns ``arithmetical calculations'' founded on 
``uncertain and unsatisfactory bases'' as unworthy of credit.
  The report continues:

  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 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 

  The minority, taking the ground that the seat should be declared 
vacant because of the ``imputed frauds and irregularities of the 
election of 1838,'' which had caused much excitement in the State of 
Pennsylvania, say:

  At that election the majority returned for Mr. Naylor was 775 votes 
yet at the succeeding election of 1839 the majority against his party 
in the same district was about three times that number of votes, which 
extraordinary change is believed by the undersigned to be ascribable 
solely to an alteration of the law so as to prevent, in 1839, the 
frauds and irregularities which are supposed to have taken place in 

  The minority further contend that the irregularities on the part of 
the election officers were very great; that they permitted the count to 
be made and the returns to be drawn up by unauthorized persons, and 
that these irregularities were in pursuance of a conspiracy.
  2. It was alleged that at Spring Garden the election officers were 
not sworn in order that they might carry the election of Mr. Naylor. It 
was alleged that a mock oath was taken, ``either on a Philadelphia 
directory'' or ``The Narrative of the Sufferings of Some Shipwrecked 
Marines,'' to ``do justice to their party this day.'' The majority of 
the committee, after an examination of the testimony, decided to give 
no credit to the charge.
  The report was, when presented to the House, laid on the table.\1\
  \1\ Journal p. 1300.
Sec. 805
  On January 15, 1841,\1\ after arguments by the contestant and sitting 
Member, the report of the majority of the committee was agreed to by 
the House, yeas 117, nays 85.
  A proposition to secure certain evidence was proposed, but not 
  805. The Virginia election case of Smith v. Banks, in the Twenty-
seventh Congress.
  Instance wherein, pending decision on an election case, the sitting 
Member resigned for a new appeal to the people.
  Instance wherein an election contest abated by resignation of sitting 
Member for a new appeal to the people.
  Early instance wherein compensation was voted to a contestant.
  On June 8, 1841,\2\ Mr. Thomas W. Gilmer, of Virginia, presented the 
memorial of William Smith, claiming to be duly elected a Member of the 
House from the Thirteenth district of Virginia, instead of Ann Banks, 
who had been returned and was the sitting Member. This memorial was 
referred to the Committee on Elections. Thereafter at various times \3\ 
during the session testimony relating to this contest was presented and 
referred to the committee.
  It appears indirectly from the Journal that about September 4,\4\ at 
the instance of the sitting Member, the decision of this case was 
postponed until the next session of Congress.
  On December 8, 1841,\5\ at the next session, Mr. Smith appeared with 
credentials showing that he had been ``elected to supply the vacancy 
occasioned by the resignation of Linn Banks.'' Mr. Smith was seated 
without objection.
  On August 31\6\ Mr. Smith, in explaining a resolution to give to 
himself pay for the time he was a contestant, made a statement of the 
case, which was corroborated on the floor by the chairman of the 
Committee on Elections. Mr. Smith stated that at the first session he 
conducted his case before the Elections Committee until he overcame the 
sitting Member's majority. It was then, he said, upon the application 
of his competitor, and against his own earnest remonstrance, that the 
case was postponed. Then he and Mr. Banks agreed to refer the matter to 
the people. The people decided the case in Mr. Smith's favor. He 
believed that in the first instance he had been fairly elected, and 
therefore considered himself entitled to the compensation. The House 
voted the compensation.
  806. The Maine election case of Joshua A. Lowell, in the Twenty-
seventh Congress.
  Instance of an election contest instituted by the remonstrance of 
citizens and electors of the district.
  The House did not make critical examination in an election case 
wherein the petitioners were indifferent.
  \1\ Second session Twenty-sixth Congress, Journal, pp. 173, 189; 
Globe, pp. 98, 104.
  \2\ First session Twenty-seventh Congress, Journal, p. 52.
  \3\ Journal, pp. 76, 282, 335, 350.
  \4\ Journal, p. 465.
  \5\ Second session Twenty-seventh Congress, Journal, p. 27.
  \6\ Globe, p. 979.
                                                             Sec. 807
  On January 13, 1842,\1\ the Speaker laid before the House testimony 
in the election case relating to the seat occupied by Mr. Joshua A. 
Lowell, of Maine. It does not appear that any other papers were 
presented to the House or referred in this case, except a protest 
presented to the House on June 11, 1841.\2\ The sitting Member, in his 
statement to the Committee on Elections, states that as to this protest 
or remonstrance, which was signed by George Hobbs and 17 other citizens 
and legal voters of the district, that it was not ``addressed to the 
House,'' was not ``presented by the Speaker or by a Member in his 
place,'' and ``a brief statement of the contents thereof'' was not made 
verbally by the introducer, and therefore should not have been 
received. It appears, however, that the Speaker did present it on June 
  The committee considered the case, and on March 9 \3\ reported on the 
``remonstrance and evidence,'' but gave no discussion of the case, 
presenting simply a resolution confirming the title of Mr. Lowell to 
the seat.
  On March 16,\4\ after a brief debate, the resolution was agreed to. 
From this debate, taken in connection with the remonstrance and sitting 
Member's answer, it is possible to arrive at an understanding of the 
leading issues of the case.
  The remonstrants had specified three objections which, if sustained, 
would have shown that Mr. Lowell was not elected. A majority of the 
votes was required at this time for an election of Representative to 
Congress from Maine, and the remonstrants merely asked that the seat be 
declared vacant, it not being claimed that any other candidate was 
  Mr. Lowell in his statement to the committee answered the objections 
made, and adduced charges as to other irregularities, which, if 
investigated, would lead to corrections which would increase his 
  The committee do not state the grounds of their decision.
  It is worth noticing, however, that the sitting Member made this 

  The laws of the United States do not provide for taking testimony to 
be used in cases of contested Congressional elections; and the laws of 
Maine, while they provide for taking testimony 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 
gave to the committee, at their session on the first instant, that I 
shall object to all evidence heretofore 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.

  The committee, however, appear to have examined the evidence and also 
to have examined evidence on the other side. It was stated that the 
remonstrants did not take great interest in the case, since the 
unseating of Mr. Lowell would require a new election, and the people of 
the district were content to have Mr. Lowell represent them for the 
remainder of the term.
  807. The Virginia election case of Goggin v. Gilmer, in the Twenty-
eighth Congress.
  The acts of proper officers, acting within the sphere of their 
duties, are presumed correct unless shown to be otherwise.
  \1\ Second session Twenty-seventh Congress, Journal, p. 173; Globe, 
p. 130.
  \2\ First session Twenty-seventh Congress, Journal, p. 83.
  \3\ Journal, p. 514; Globe, p. 301.
  \4\ Journal, pp. 545, 546; Globe, p. 323; 1 Bartlett, p. 37.
Sec. 807
  In the absence of fraud the failure of election officers to be sworn 
should not vitiate a poll.
  Discussion of directory and mandatory laws as related to 
irregularities in conduct of elections.
  A minority argument that a poll should be rejected for failure of an 
election officer to be sworn.
  The House did not endorse a proposition to declare a seat vacant 
because of irregularities on the part of election officers not shown to 
be corrupt.
  A Member being appointed to an incompatible office, a contestant not 
found to be elected was not admitted to fill the vacancy.
  On December 7, 1843,\1\ Mr. Willoughby Newton, of Virginia, presented 
a memorial of William L. Goggin, contesting the seat of Thomas W. 
Gilmer, of Virginia. This memorial was referred to the Committee on 
  On January 25, 1844,\2\ Mr. Lucius Q. C. Elmer, of New Jersey, 
presented the report of the committee. At a later time Mr. Robert C. 
Schenck, of Ohio, on the part of himself, and Messrs. Garrett Davis, of 
Kentucky, and Willoughby Newton, of Virginia, filed minority views.
  Mr. Gilmer was returned by a majority of 20 votes over Mr. Goggin. 
The validity of this majority was attacked on several grounds, which 
are discussed as follows:
  1. The law of Virginia had at that time the following provision:

  If the electors, who appear to be so numerous that they can not all 
be polled before sun setting, 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 separate 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 day to day for three days (Sundays excluded), giving notice 
thereof at the door of the court-house.

  In two counties polls were continued by reason of rains, and it was 
from the votes cast at these postponed elections that all of the 
sitting Member's majority was obtained. On the poll of the regular 
first day Mr. Goggin had a majority of 74 votes.
  The majority and minority differed in their interpretation of this 
law and as to whether or not the acts of the elections officers were in 
accordance with its provisions. The majority say:

  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 incumbent 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 
has failed to do.

  The minority say:

  While the undersigned believe, therefore, and admit that much should 
be allowed to the discretion of the officers, and that the first 
presumption should always be in favor of a sound and rightful exercise 
of that discretion, yet there is no reason why, in a proper case, there 
should not be an inquiry
  \1\ First session Twenty-eighth Congress, Journal, p. 30.
  \2\ Journal, pp. 291, 312; Globe, pp. 192, 193, 205; House Report No. 
76, pp. 1 and 129.
                                                             Sec. 807
into the sufficiency of the cause assumed by them for their action. The 
undersigned are of opinion, also, that such judgment of the officers 
conducting the election, so far as they may have acted in reference to 
that which the law in any way leaves to their discretion, ought not to 
be disturbed or set aside, except in a case of clear and flagrant error 
or wrong.

  2. The petitioner alleged that certain election officers were not 
  The majority report says:

  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 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 facie 
proof that the superintendents conducting the elections * * * were not 

  The majority examine this evidence. The minority, while not agreeing 
entirely, say:

  Great looseness and negligence appear to have prevailed at almost 
every precinct in the district. * * * The undersigned, however, have 
been always satisfied with anything approaching to a substantial 
compliance with what the law prescribes. They believe that whenever a 
failure of obedience to these directory provisions does not necessarily 
involve the probability of a wrong or tend to make a dangerous 
precedent by taking away some of the substantial safeguards which are 
to secure the purity of elections, such failure ought not to be treated 
as sufficient to make void the apparent returns. Every regulation in 
relation to elections--of time, place, manner, form of vote, officers 
who are to conduct them, poll books, returns, and whatever else 
pertains to the exercise of that invaluable franchise of the citizen--
is, in fact, directory; but there are some of these regulations more 
substantive and important in their use and character than others; and 
somewhere it is necessary to draw the line, distinguishing between that 
which is proper, but not essential, and that which so enters into the 
essential character of a good election that a failure in it should be 
held a fatal defect. Of this latter class the undersigned believe to be 
the requirement of an oath from the election officers.

  The minority refer to the cases of McFarland v. Purviance, McFarland 
v. Culpepper, Porterfield v. McCoy, Easton v. Scott, and Draper v. 
  As a result of their examination the majority of the committee found 
the sitting Member elected by at least a majority of 4 votes, even 
allowing contentions which they did not admit. Therefore they reported 
a resolution confirming the title of Mr. Gilmer to the seat.
  The minority found as the result of their examination that Mr. Goggin 
had a majority of 30 votes. They say:

  They are clearly satisfied that Mr. Gilmer, the sitting Member, has 
not obtained a majority of the votes legally taken in the district 
entitling him to retain his place as a Representative in this body. But 
such result being produced (in part at least) by the failure or duty or 
misconduct of officers, whose action should not be permitted to 
interfere with an opportunity afforded to the electors of the district 
to express clearly and with certainty their will, by a properly 
ascertained majority, the undersigned do not agree that the seat, if 
thus vacated, ought to be given to Mr. Goggin. They recommend, 
therefore, the passage of the following resolution:
  Resolved, That the seat now held by Thomas W. Gilmer, as 
Representative from the Fifth district of Virginia in this House, is 
hereby declared vacant, and that a communication be sent to the 
governor of that State to inform him of that fact that an election may 
be made by the people of that district to fill the vacancy.

  On February 15,\1\ before the report was acted on, a message of 
President Tyler
  \1\ Senate Executive Sourrial, 1841-1845, pp. 235, 236.
Sec. 808
was received in the Senate, nominating Mr. Gilmer as Secretary of the 
Navy, and on the same day the nomination was confirmed.
  On February 16 \1\ Mr. Willoughby Newton, of Virginia, proposed the 

  Ordered, That William L. Goggin have leave to withdraw his memorial 
contesting the right of Thomas W. Gilmer to a seat as a Member of the 
House of Representatives.

  Mr. Newton stated that Mr. Goggin did not concede that Mr. Gilmer had 
been elected, but as the latter had sent his resignation to the 
governor of Virginia the object of the contestant, which was to procure 
another trial before the people, had been attained.
  The House agreed to the order without division.
  On February 17 \2\ Mr. Gilmer's resignation was announced in the 
  On May 10 \3\ Mr. Goggin, with credentials showing his election to 
fill the vacancy caused by Mr. Gilmer's resignation, appeared and took 
his seat.
  808. The Massachusetts election case of Osmyn Baker, in the Twenty-
eighth Congress.
  Instance of an election contest instituted by a memorial from 
citizens of the district.
  The parties complaining of an undue election failing to present 
evidence, the House did not pursue the inquiry.
  On February 5, 1840,\4\ Mr. William Parmenter, of Massachusetts, 
presented, a memorial of citizens and legal voters of the Sixth 
Congressional district of Massachusetts, remonstrating against the 
return of Osmyn Baker, by the governor and council of that State as a 
Member of the House, and praying that his seat may be vacated for the 
reason that he did not receive a majority of the votes given by the 
legal voters.
  This memorial was referred to the Committee on Elections.
  On March 19 \5\ a further representation and memorial in this case 
was presented and referred.
  On February 24 \6\ the Committee on Elections was authorized to send 
for persons and papers in reference to this case.
  On July 17 \7\ Mr. John Campbell, of South Carolina, from the 
Committee on Elections, reported this resolution, which was agreed to:

  Resolved, That the Committee on Elections be discharged from the 
further consideration of the petitions of certain electors of the Sixth 
Congressional district of the State of Massachusetts, alleging that 
Osmyn Baker, the sitting Member from that district, was not duly 
elected a Member of the House of Representatives, there being no 
evidence produced to the committee in support of the allegations of the 
petitioners, and the time limited by agreement of parties and the 
authority of the committee for completing the taking of the same having 
expired on the fourth Monday of May last.
  \1\ House Journal, p. 414; Globe, p. 289.
  \2\ Journal, p. 416; Globe, p. 291.
  \3\ Journal, p. 890.
  \4\ First session Twenty-sixth Congress, Journal, p. 278; Globe, p. 
  \5\ Journal, p. 638; Globe, pp. 278, 279.
  \6\ Journal, pp. 429-433.
  \7\ Journal, p. 1300.
                                                             Sec. 809
  809. The Virginia election case of Botts v. Jones, the Speaker, in 
the Twenty-eighth Congress.
  The seat of the Speaker being contested, he vacated the chair on 
every question relating to the contest.
  The Speaker's seat being contested, the House directed that the 
Elections Committee be appointed by the Speaker pro tempore.
  On December 4, 1843,\1\ the House elected John W. Jones, of Virginia, 
Speaker On December 7,\2\ Mr. John Quincy Adams, of Massachusetts, 
indicated his purpose to present the memorial of John M. Botts 
contesting the seat of John W. Jones, of Virginia. The Speaker 
thereupon called Mr. Samuel Beardsley,\3\ of New York, to the chair. 
Then Mr. Adams presented the memorial, which was ordered to be referred 
to the Committee on Elections when appointed. Later in the same day \4\ 
the Speaker, by general consent, stated that it seemed proper for him 
to ask the House that he be relieved of the appointment of the standing 
Committee on Elections in view of the fact that his own seat was 
contested. The Speaker again called Mr. Beardsley to the chair, and 
after debate, by a vote of 98 to 48, the House decided that Mr. 
Beardsley should appoint the committee.
  Mr. Beardsley thereupon appointed the committee, Mr. William W. 
Payne, of Alabama, being chairman.
  On December 13 \5\ the Speaker again left the chair, calling Mr. Linn 
Boyd, of Kentucky, as Speaker pro tempore.
  Then it was ordered, on motion of Mr. L. Q. C. Elmer, of New Jersey, 
a member of the Committee on Elections, that all documents in 
possession of the clerk in the case of Botts v. Jones be referred to 
the Committee on Elections.
  On May 21, 1844,\6\ the Speaker called Mr. John B. Weller, of Ohio, 
to the chair, and thereupon Mr. Elmer submitted the report of the 
majority of the Committee on Elections. Again, on May 31,\7\ the 
Speaker called Mr. Weller to the chair, and Mr. Willoughby Newton, of 
Virginia, submitted the views of the minority.
  810. The case of Botts v. Jones, continued.
  A person whose vote has been received by the officers of election is 
presumed to be qualified.
  Instance wherein by agreement of parties evidence in an election case 
was taken under a State law.
  A poll fairly conducted should not be set aside because an election 
officer had not been sworn.
  The issues in the case were as follows:
  The testimony in the contest had been taken by agreement of the 
parties according to the Virginia law regulating contests before the 
State legislature, and acting in accordance with that practice each 
party considered himself bound to establish the right of the voter 
challenged by the other party. The committee
  \1\ First session Twenty-eighth Congress, Journal, p. 8.
  \2\ Journal, p. 30; Globe, p. 18.
  \3\ Mr. Beardsley belonged to the majority party in the House.
  \4\ Journal, p. 40; Globe, p. 21.
  \5\ Journal, p. 50.
  \6\ Journal, p. 948; Report H. of R., No. 492.
  \7\ Journal, p. 989; Report H. of R., No. 520.
Sec. 811
expressed the opinion 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 as the parties had 
proceeded on the contrary principle, the committee conformed its 
examination to the Virginia practice.
  At one precinct there was evidence showing that the sheriff and one 
of the superintendents were not sworn, as required by law. The majority 
of the committee considered this evidence taken without the notice 
required by the Virginia law, and were therefore not disposed to give 
it full effect. The minority held that, there being no law of any kind 
expressly governing the taking of testimony, the rules of convenience 
and propriety prescribed by the courts should hold, and that the 
evidence had been properly taken. The majority considered that at this 
time the functions formerly exercised by a sheriff at Virginia 
elections had so far ceased as to render the objection as to the oath 
immaterial. The minority, while conceding that he could no longer admit 
or reject a vote, found that he was still custodian of the polls and 
had important duties to perform. Also one of the two superintendents 
was not sworn, and the majority admit that this was ``irregular and 
illegal,'' but do not think the poll should be set aside as wholly null 
and void where it appears to have been fairly conducted. The minority 
insisted that the votes of this precinct should be thrown out, ``not 
being disposed to regard these oaths, solemnly prescribed by the wisdom 
of the law-making power, as mere idle forms.'' Had these votes been 
thrown out it would have made no difference in the result.
  811. The case of Botts v. Jones, continued.
  The House rejected votes cast by persons not naturalized citizens of 
the United States, although entitled to vote under the statutes of a 
  No fraud or injury being shown, the proper acts of an unqualified or 
unauthorized election officer do not vitiate the poll.
  A contestant admitted to be heard in an election case is governed by 
the hour rule of debate.
  The minority, in their views, also state the following:

  A number of votes were stricken from the poll of Mr. Botts upon the 
ground that, although the voters, who were by birth foreigners, had 
taken the oath of fidelity to the Commonwealth, under the statutes of 
Virginia they were not strictly citizens of the United States. A large 
majority of the committee being of opinion that, as the power of the 
Federal Government ``to enact uniform laws upon the subject of 
naturalization'' is, when exercised, exclusive, the statutes of 
Virginia prescribing an oath of fidelity to the Commonwealth and 
declaring the mode in which persons shall become citizens of Virginia, 
are merely void; and that such persons, although treated by the laws of 
Virginia as citizens, can not exercise the right of suffrage for 
Members of the House of Representatives, which right is guaranteed by 
the Constitution to all ``free white male citizens of the 
Commonwealth'' possessing other prescribed qualifications. From this 
opinion one of the undersigned dissents; and, whether such persons are 
technically citizens or not, thinks they ought to come within the 
description of persons upon whom the right of suffrage is conferred by 
the constitution of the State; and being permitted, under its 
provisions, ``to vote for members of the most numerous branch of the 
State legislature,'' ought not to be denied the privilege of voting for 
Members of the House of Representatives.\1\

  In the House Mr. Robert C. Schenck, of Ohio, called attention to the 
importance of this question.\2\
  \1\ This minority report is signed by Messrs. Willoughby Newton, of 
Virginia, Robert C. Schenck, of Ohio, and Garrett Davis, of Kentucky.
  \2\ See discussion below.
                                                             Sec. 811
  A question as to the appointment of writers at the polls involved a 
construction of the Virginia laws as to the number of these officials 
required. There was disagreement as to the meaning of this law, but the 
majority say:

  Should the true construction 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 committee 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 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 v. Scott, referred to by Mr. Botts in his memorial, is entirely 
different from this.

  The minority views also expressed the opinion that Mr. Botts's 
contention on this point was untenable.
  As a result of their conclusions the majority recommended this 

  Resolved, That John W. Jones is entitled to his seat in this House as 
a Representative from the Sixth Congressional district of the State of 

  The minority did not dissent from the conclusions embodied in this 
  On May 31,\1\ in the House, Mr. Robert C. Schenck, of Ohio, called 
attention to the fact that the decision of the committee had turned on 
the qualifications of voters, and that if voters admitted to 
citizenship in the State without being citizens in every respect had 
not been held to be disqualified, Mr. Botts would have had a majority 
of several votes. Mr. Schenck said that he had concurred in excluding 
the class of voters excluded by the majority because the admission of 
such votes (under the qualifications prescribed by the States) would be 
rendering nugatory the power granted to the Congress of the United 
States, the States being permitted 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.'' To this Mr. Stephen A. Douglas, of Illinois, a 
member of the Committee on Elections, replied that he did not 
understand the decision of the committee as involving the question as 
to whether that class of voters in other States should be admitted or 
excluded. He held that any State of the Union had a right to prescribe 
the qualifications of voters within the State, and that this House had 
not the power to reject a Member elected by such voters.
  On May 31 \2\ leave was granted to Mr. Botts to be heard in person at 
the bar of the House.
  On June 6 \3\ the case came up in the House, the Speaker calling Mr. 
John B. Weller, of Ohio, to the chair.
  On motion of Mr. George W. Hopkins, of Virginia, it was--

  Ordered, That the Speaker of this House, whose right to a seat as a 
Member of the House is contested, have leave to speak upon this 
resolution, notwithstanding that clause of the Manual which restrains 
the Speaker from addressing the House except upon questions of order.
  \1\ Globe, p. 634.
  \2\ Journal, p. 990.
  \3\ Journal, pp. 1011-1014; Globe, pp. 648, 649.
Sec. 812
  Mr. Garrett Davis, of Kentucky, having raised a question as to 
whether the petitioner would be limited by the hour rule, the Speaker 
pro tempore held that he would be, and on appeal the decision was 
sustained, yeas 102, nays 76.
  Thereupon Mr. Botts addressed the House, and was followed by Mr. 
Jones. the Speaker.
  Then, on the question of agreeing to the resolution reported by the 
Committee on Elections, there appeared, yeas 150, nays 0.
  812. The Florida election case of Brockenbrough v. Cabell, in the 
Twenty-ninth Congress.
  A State law requiring returns to be made to the secretary of state 
within a given time was held to be directory merely and not to prevent 
the House from counting the votes.
  A certificate of a State officer with belated returns from election 
inspectors (whose authority to make such returns was doubtful) was 
admitted although procured ex parte.
  The House declined to recommit an election case in order to count 
votes in precincts whence no votes had been returned or proven.
  The petition of a contestant was admitted although defective in its 
specification of particulars.
  There being no law of Congress to regulate election contests, 
proceedings taken according to State law were approved.
  Instance wherein questionable prima facie right was not disturbed 
pending decision as to final right.
  In 1846 \1\ the Committee of Elections reported in the case of 
Brockenbrough v. Cabell, from Florida.
  The contestant objected that, from the lawful returns, he was 
entitled to the credentials that had been given to the sitting Member 
by the governor, and that the greatest number of votes of the legally 
qualified voters were cast in his favor and not in favor of the sitting 
  Objection was made by the sitting Member that the petition of the 
contestant should specify the particulars of the illegalities 
complained of as to the return; but the committee deemed the petition--
which was somewhat more definite than given above, but did not go into 
particulars--sufficient and determined to proceed with the inquiry.
  The point on which the case turned was the construction of the laws 
of Florida in regard to the returns. The contestant contended that 
under the law the judges of probate were the returning officers, and 
the majority of the committee concurred in this view. The sitting 
Member contended that the inspectors of precincts were the returning 
officers, and the minority of the committee concurred in this view. The 
committee was as nearly evenly divided in the case as possible. It is 
also to be noted that a large portion of the total vote was returned by 
election inspectors, the remainder being by judges of probate or legal 
substitute--the county clerk.
  \1\ First session Twenty-ninth Congress, House Report No. 35; 1 
Bartlett, p. 79; Rowell's Digest, p. 123. The report was submitted by 
Mr. Hannibal Hamlin, of Maine; the minority views by Mr. Erastus D. 
Culver, of New York.
                                                             Sec. 812
This indicates a division of opinion in the State as to who were the 
proper returning officers.
  The law of the State further provided indisputably that the secretary 
of state should count the returns at the expiration of thirty days 
after the election and certify the result to the governor, who should 
issue the commission.
  At the expiration of thirty days the secretary of state had received 
returns from judges of probate in fourteen counties, from a county 
clerk in one county where there was no judge of probate, and from 
precinct inspectors in eight counties. The fifteen counties returned by 
judges of probate and the county clerk showed a majority for Mr. 
Brockenbrough, but with the eight counties returned by inspectors 
added, the majority was for Mr. Cabell. The secretary of state 
certified this result to the governor, who issued his certificate to 
Mr. Cabell, who had the majority of inspectors' returns and also of all 
the returns. The contestant objected that only the returns from the 
judges of probate (and the county clerk where there was no judge) were 
lawful returns, and therefore that the certificate should have been 
issued to him instead of to Mr. Cabell.
  After the expiration of the thirty days returns were received from 
judges of probate in three counties, from two of which inspectors' 
returns had been counted by the secretary of state.
  Also after the expiration of thirty days inspectors' returns were 
received from Monroe County, the same being the only returns of any 
kind from that county.
  If only the belated returns by judges of probate were added to the 
tabulation of the secretary of state, Mr. Cabell would still be 
  But if the Monroe County returns also should be added, Mr. 
Brockenbrough would be elected.
  Thus it appeared that if only returns of judges of probate were to be 
admitted as lawful--the question as to time of return being waived--Mr. 
Brockenbrough was elected.
  And if--the time limit being waived--all the votes returned from all 
the counties should be counted, still Mr. Brockenbrough was elected.
  The committee did not question the prima facie right of Mr. Cabell to 
the seat.
  As to the final right, the decision was complicated by a curious 
condition of rule as to evidence.
  The contestant offered the certificate of the secretary of state as 
to the belated judge of probate returns from the three counties. The 
sitting Member objected, that he had not been notified of an intention 
to procure this evidence; that the returns were received after the 
expiration of thirty days, and that, as judges of probate were not 
proper returning officers, their certificates and that of the secretary 
were extra-official. These objections were overruled, and the principle 
seemed to be thereby established that the judges of probate and not the 
inspectors were the returning officers.
  Next the contestant offered the certificate of the secretary of state 
with extract of returns of inspectors of Monroe County. This was 
objected to on the ground that sitting Member had not been notified of 
the procuring or production of it; that it was not a legal return, and 
that it was inadmissible under the decision just made
Sec. 812
that the judges of probate were the returning officers. The majority of 
the committee decided the last objection well taken and rejected the 
  This decision left the majority for the sitting Member, and it was 
originally the intention of the larger portion of the committee to so 
report. The argument was very strong that such ex parte depositions as 
those relating to Monroe County should not be admitted. Spaulding v. 
Mead was quoted in support of this principle.
  The minority contended that these returns might not be admitted on 
the plea that the other inspectors' returns had been admitted, because 
evidence as to the other inspectors' returns was offered by the 
contestant as part of a document tending to prove his right to a seat, 
and therefore that he could not ask that the part of the paper which 
favored his adversary should be disregarded after the committee had 
received it. It was like the case of an admission proved by a party; he 
must take the whole of it, that against him as well as that for him. 
After proving a state of facts by his own evidence, the contestant 
might not disavow part of the evidence and seek to avail himself of the 
remainder. Nor could it be used subsequently as a pretext for the 
introduction of confessedly illegal ex parte evidence.
  The majority of the committee concluded that the law requiring the 
returns to be made to the secretary of state to be directory merely, 
and that to throw out votes returned after that time would lead to bad 
results and tend to defeat the will of the people.
  For the same reason, as expressed by Mr. Hannibal Hamlin, of Maine, 
chairman of the committee, in the debate, the committee decided not to 
confine itself to its narrow construction that the legal returns were 
those returned by the judges of probate.
  And following this principle further, the majority decided that, as 
the inspectors' returns of the eight counties counted by the secretary 
of state were admitted, so also the inspectors' returns of Monroe 
County should be admitted.
  This conclusion as to Monroe showed the election of Mr. 
Brockenbrough, and the committee reported that Mr. Cabell was not 
entitled to the seat and that Mr. Brockenbrough was entitled to it.
  In course of consideration of this case the committee overruled the 
objection of the sitting Member that contestant's notice of contest had 
not been seasonably given. The committee found that the proceedings had 
been taken in accordance with the requirements of a State law relating 
to contests before the State legislature only; but held by the 
committee to be proper as a rule in this case.
  As a result of their conclusions the majority of the committee 
reported the following resolutions:

  Resolved, That E. Carrington Cabell, returned to this House as a 
Member thereof from the State of Florida, is not entitled to his seat.
  Resolved, That William H. Brockenbrough is entitled to a seat in this 
House as a Representative from the State of Florida.

  The minority recommended the following:

  Resolved, That William H. Brockenbrough has not supported his 
petition, and that Edward C. Cabell is entitled to his seat in this 

  The report was debated on January 20, 21, 22, 23, and 24.\1\ It 
appeared from the debate that from a few precincts in the district no 
returns had been made.
  \1\ Globe, pp. 222, 230, 236, 238.
                                                             Sec. 813
Indeed, in one of them there was doubt as to whether or not an election 
had been held. There was no evidence to show what had been done at 
these precincts, and therefore during the debate Mr. Alexander D. Sims, 
of South Carolina, proposed\1\ a motion reciting this lack of certain 
returns, and providing that the report in this case be recommitted to 
enable further testimony to be taken. Mr. Hamlin admitted that there 
were precincts from which no returns had been received; but by informal 
statements made before the committee by the contestant, and apparently 
not disputed by the sitting Member, the committee had understood that 
the votes of such precincts were in favor of contestant. In one county 
there was nothing to show whether an election had been held or not.
  The motion of Aft. Sims, under the practice prevailing at that time, 
was thrust aside by the ordering of the previous question. Then the 
first resolution, unseating Mr. Cabell, was agreed to,\2\ yeas, 105; 
nays, 80. The resolution seating Mr. Brockenbrough was agreed to, yeas 
100, nays 85.
  Mr. Jacob Thompson, of Mississippi, then moved \3\ to reconsider this 
vote in order that the case might be delayed until testimony might be 
produced as to the votes of the missing precincts. He based this 
proposition on the statement of the sitting Member to the House that 
there were precincts from which no returns had been made, and also the 
further statement of sitting Member that the counting of the votes of 
those precincts would give him a majority of the votes in the district.
  Mr. Thompson's motion to reconsider was disagreed to, yeas 87, nays 
  Mr. Brockenbrough then appeared and took the oath.
  813. The New Jersey election case of Farlee v. Runk in the Twenty-
ninth Congress.
  Discussion of the meaning of the word ``residence'' as related to the 
qualifications of a voter.
  The House, by a close vote, sustained the contention that certain 
students were residents in the place wherein they attended college
  In 1846,\4\ in the contested election case of Farlee v. Runk, from 
New Jersey, the returns showed that--

Mr. Runk received                                                 8,942
Mr. Farlee received                                               8,926
  Majority for Mr. Runk                                              16

  Mr. Farlee represented to the House by his memorial that this 
majority was obtained by the illegal votes of 36 students in the 
college and seminary at Princeton.
  The committee divided on the question of the right of the students to 
vote, the majority finding that 19 of them were entitled, and the 
minority finding that none were entitled under the law and constitution 
of New Jersey.
  \1\ Journal, p. 281; Globe, p. 230.
  \2\ Journal, pp. 293, 294, 295.
  \3\ Journal, p. 296; Globe, p. 238.
  \4\ First session Twenty-ninth Congress, House Report No. 310; 1 
Bartlett, p. 87; Rowell's Digest, p. 124. The majority report was by 
Mr. James C. Dobbin, of North Carolina; the minority views by Mr. 
Lucien B. Chase, of Tennessee.
Sec. 813
  As the voting in New Jersey was by ballot, both minority and majority 
experienced difficulty in determining what the actual effect of the 
students' votes had been. The 19 whom the majority considered entitled 
to vote had made depositions in which 4 acknowledged that they voted 
for Mr. Runk and 1 that he voted for Mr. Farlee. The other 14 availed 
themselves of their privilege not to answer and declined to declare how 
they voted. The majority of the committee did not attempt to ascertain 
for whom the 14 voted, since it was not necessary under their 
contention that the votes of the students were legal, and recommended a 
resolution that Mr. Farlee was not entitled to the seat.
  The minority, following the example in the Now Jersey case of 1840, 
contended that secondary evidence should be admitted, and from the 
deposition of a person who testified that 16 of the students whose 
votes were not known were Whigs, concluded that those 16 voted for Mr. 
Runk, the Whig candidate. With the 5 who acknowledged their votes, the 
minority arrived at a deduction of 20 votes from Mr. Runk and 1 from 
Mr. Farlee. This left a majority of 3 for Mr. Farlee, and the minority 
reported the conclusion that he was entitled to the seat.
  The argument on the question as to whether or not the students were 
qualified to vote involved the question of residence. The then recently 
adopted constitution of New Jersey defined voters as ``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.'' There was, 
moreover, a law passed in 1844 expressly declaring that students so 
circumstanced as those in question should not vote in New Jersey. The 
majority, however, held that this law, which had been passed under the 
old constitution, was of no effect under the new constitution. The 
minority, while not relying on this law to support their contention, 
yet denied that it had become inoperative.
  The main issue, therefore, was joined on the meaning of the word 
``resident'' in the constitution. The majority admitted that most of 
the students at Princeton would be incapable of voting, since they had 
left their homes for a temporary purpose, meaning to return. But they 
conceived that the few who had voted were entitled to do so, on the 
showing made in their depositions, ``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--undertermined in their minds as to the adoption of any 
particular residence should they choose to abandon Princeton.'' The 
supreme court of New Jersey, in the case of Cadwallader v. Howell and 
Moore, decided in November, 1840, had declared:

  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 the opinion further went on--

  The place where a man is cormorant 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 residence 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 continues in law, notwithstanding the temporary 
absence of himself and family.
                                                             Sec. 813
  The minority contended that residence was defined by Judge Story, who 
said in his Conflict of Laws that ``domicile, in a legal sense, is 
where the person has his true, fixed, and permanent home and principal 
establishment, and to which, whenever he is absent, he has the 
intention of returning.'' All of the students testified that they went 
to Princeton for purposes of study. Some of them stated that after they 
had accomplished their objects they intended to leave Princeton; others 
that they should go ``wherever the providence of God may call them.'' 
There was no proof whatever that they intended to make Princeton their 
``true, fixed, and permanent home;'' no evidence that they intended to 
remain at Princeton an ``unlimited time.'' The minority call attention 
to the fact that several of the students who voted had already left 
Princeton and the committee had been unable to procure their testimony. 
These students were entered on the college catalogue as residing in 
other places; several in other States. This had undoubtedly been done 
on the authority of the students themselves. Although the students may 
have left their homes animo non revertendi, yet there was neither 
positive nor presumptive proof that they came to Princeton animo 
manendi. The evidence showed the contrary. The court in the case above 
quoted had held--

  It is for the reason that the students of our colleges, the inmates 
of our law schools and medical universities, and hundreds of others who 
are scattered on land and sea, engaged for the time being in the 
prosecution of some transient object, are considered in law as residing 
in their original homes, although in point of fact they may be living 
for the time being elsewhere.

  The majority had reported a resolution as follows:

  Resolved, That Isaac G. Farlee is not entitled to a seat in this 
House as a Representative from the State of New Jersey.

  The minority recommended the following:

  Resolved, That John Runk is not entitled to a seat upon this floor.
  Resolved, That Isaac G. Farlee, having received a majority of the 
legal votes of the legally qualified voters of the Third Congressional 
district of New Jersey, is entitled to his seat upon this floor.

  Mr. Hannibal Hamlin, of Maine, on March 3,\1\ when the report was 
considered, moved to strike out all after the word ``resolved'' in the 
resolution of the majority, and insert the text of the two minority 
  This motion was decided in the negative, yeas 76, nays 112.
  Thereupon the House, by a vote of yeas 119, nays 66, agreed to the 
resolution of the majority of the committee, declaring petitioner not 
entitled to the seat.
  Thereupon Mr. Hamlin, as a question of privilege, offered the 

  Resolved, That John Runk is not entitled to a seat in this House.

  A motion that the resolution lie on the table was disagreed to, yeas 
93, nays 99.
  Then, on agreeing to the resolution, there appeared yeas 96, nays 96.
  ``The House being equally divided,'' says the Journal, ``the Speaker 
voted with the nays, and so the House refused to agree to the said 
resolution; and Mr. Runk, the sitting Member, retains his seat.''
  \1\ Journal, pp. 431, 477-483; Globe, pp. 448, 454, 456.
Sec. 814
  814. The New York election case of Monroe v. Jackson, in the 
Thirtieth Congress.
  Discussion of the qualifications of voters in respect to residence of 
paupers in an almshouse.
  Discussion of the evidence required to establish for whom a voter has 
cast his ballot.
  Form of resolution by which the House, in 1848, provided for taking 
testimony in an election case.
  The earlier regulations for taking testimony in an election case 
provided that the depositions should be forwarded to the Speaker.
  On March 25, 1848,\1\ the Committee on Elections reported in the case 
of Monroe v. Jackson, from New York. This was a case wherein the 
contestant charged fraud sufficient to account for the majority of 143 
votes returned for the sitting Member. The majority of the committee 
satisfied itself of the truth of the charges and reported in favor of 
the contestant. The minority contended that there was not positive 
proof sufficient to set aside the result certified to by the governor 
of the State, and recommended resolutions confirming the sitting Member 
in his seat.
  The House, on April 19,\2\ by a vote of 160 to 13, declined to agree 
to a proposition that, as it did not satisfactorily appear that either 
was elected, the seat should be declared vacant. Then the propositions 
of the minority, that Mr. Jackson was entitled to the seat and Mr. 
Monroe was not entitled to it, were disagreed to--yeas 102, nays 93.
  The question recurring on the first proposition of the majority, that 
Mr. Jackson was not entitled to the seat, it was decided in the 
affirmative--yeas 103, nays 93.
  On the second proposition of the majority, that Mr. Monroe was 
entitled to the seat, there appeared 91 yeas and 104 nays.
  So the seat was left vacant.
  While a large number of frauds and irregularities were alleged, and 
attempt was made to sustain them by evidence of varying degrees of 
strength, the principal and most tangible issue in the case arose over 
the charge that 163 paupers from an almshouse had cast their ballots 
for the sitting Member, and that to these his apparent majority was 
due. The law of New York provided that no person should ``be deemed to 
have lost or acquired a residence by living in any poorhouse, 
almshouse, hospital, or asylum, in which he shall be maintained at 
public expense.'' The right of the paupers to vote in the election 
district where their legal residence was could not be questioned, but 
neither majority nor minority contended that they might vote on their 
almshouse residence.
  The issue was as to the sufficiency of proof. The majority satisfied 
themselves that the paupers were not qualified voters in respect to 
residence by the testimony of officers of the almshouse as to names on 
its books. The minority contended that the voters themselves should 
have been called to testify as to residence, and
  \1\ First session Thirtieth Congress, I Bartlett, p. 98; Rowell's 
Digest, p. 126; House Report No. 403. The majority report was made by 
Mr. Joseph Mullin, of New York; the minority views by Mr. Timothy 
Jenkins, of New York.
  \2\ Globe, p. 643; Journal, pp. 705-709.
                                                             Sec. 815
that the secondary evidence adduced was not conclusive. Not even the 
almshouse books were put in evidence.
  Elections in New York being by ballot, it also became necessary to 
show for whom the alleged illegal votes were thrown. Again, the voters 
were not interrogated, but the majority of the committee satisfied 
themselves that the illegal votes were for the sitting Member because 
tickets of his party were distributed at the almshouse, because 
officers of that institution and those who conveyed the paupers to the 
polls were of his party, and because witnesses noticed the ballots when 
cast and professed to distinguish and recognize them by texture of the 
paper. The minority combated this evidence as too indefinite and 
  The majority, on the strength of the evidence which they allowed, 
found for the contestant a majority of 14 votes. The minority denied 
this conclusion.
  The testimony in this case was taken in accordance with this 

  Resolved, That the parties * * * be, and they hereby are, authorized 
to take the testimony of such witnesses as either of them may require, 
by depositions, in conformity to the laws of the State of New York, in 
force at the time of taking such testimony, on the subject of contested 
elections in that State: Provided, That the parties may, by agreement 
under their hands, regulate the mode of giving notice and other matters 
of form, at their discretion; but if no such agreement shall be made, 
then each party shall give to the other such notice of the time and 
place of taking such depositions as are prescribed in the aforesaid 
laws of New York: Provided, also, That when such depositions are taken 
they shall, together with the agreements or notices aforesaid, be 
sealed up by the officer taking the same and directed to the Speaker of 
the House.

  815. The Iowa election case of Miller v. Thompson, in the Thirty-
first Congress.
  In earlier times the taking of testimony is an election case was 
governed by a resolution of the House.
  Testimony in an election case, under the earlier practice, was sent 
to the Speaker and referred by the House.
  In 1849 election contests were instituted by memorial.
  On December 31, 1849,\2\ Mr. Edward D. Baker, of Illinois, presented 
the memorial of Daniel F. Miller, claiming election from the First 
Congressional district of Iowa, and praying to be admitted to the seat 
occupied by William Thompson. This memorial was referred to the 
Committee on Elections.
  On January 23, 1850,\3\ the House agreed to a resolution providing 
for the taking of testimony in accordance with the provisions of the 
laws of Iowa, and also making certain stipulations not provided for by 
those laws. It was provided that this testimony should be forwarded to 
the Speaker, and on March 19 \4\ the Speaker laid before the House 
certain depositions forwarded to him under the resolution.
  On June 18, Mr. William Strong,\5\ of Pennsylvania, presented the 
report of the majority of the committee and Mr. John Van Dyke, of New 
Jersey, presented the views of the minority.
  \1\ Journal, p. 174.
  \2\ First session Thirty-first Congress, Journal, p. 190.
  \3\ Journal, p. 394.
  \4\ Journal, p. 684.
  \5\ Journal, p. 1029; House Report No. 400.
Sec. 816
  The sitting Member, William Thompson, had been returned by an 
official majority of 386 votes.
  The contestant alleged two main objections which, if sustained, would 
have destroyed this majority. The board of canvassers rejected the vote 
of Kanesville, which had given Miller, the contestant, 493 votes, and 
Thompson, the sitting Member, 30. Contestant claimed that this 
rejection was illegal. The contestant further objected that the 
canvassers had counted illegally the votes of Boone Township, in Polk 
County, which were 42 for Thompson and 6 for contestant.
  Therefore the questions relating to Kanesville and Boone in Polk 
County were of prime importance in the consideration of the case. But 
other questions were involved, and the subject naturally divides itself 
as follows:
  816. The election case of Miller v. Thompson, continued.
  Being satisfied as to the intention of the voter, the Elections 
Committee counted ballots from which the middle initial of candidate's 
name was lacking.
  Votes apparently intended for Congressional candidates, but returned 
as for a State office, were counted without further inquiry.
  1. As to ballots lacking the middle initial of contestant's name.
  The contestant claimed that he should be allowed 7 additional votes 
of Marion County which were given for ``Daniel Miller'' and were 
rejected by the canvassers on account of the omission of the initial of 
the middle name, though the Christian and surnames were correctly 
described. The committee were unanimously of the opinion that the 7 
votes should be counted for contestant. The minority views state:

  The committee, therefore, are satisfied that the said 7 votes were 
honestly intended for the contestant and allow them accordingly.

  2. As to certain irregularities in the conduct of an election.
  The majority and minority of the committee united in crediting to 
sitting Member 11 votes and to contestant 3 votes in the town of Wells, 
in Appanoose County. The minority views state the case as to this 

  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,'' William 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.
  The vote of the committee on counting these votes was ayes 8, noes 1.

  817. The election case of Miller v. Thompson, continued.
  In determining the residence of a voter, the intention to remain is 
held consistent with an intention to change the abode at a future 
indefinite day.
  Instance wherein a committee reported its proceedings, which thereby 
became a proper subject of debate. (Footnote.)
                                                             Sec. 817
  Residence in a county being a qualification of voters, the votes of 
nonresidents were rejected.
  3. As to the qualifications of certain voters whose residence was 
  This question concerned certain voters at Kanesville, but is not to 
be confounded with the different and more important question to be 
considered later in relation to that place.
  Mr. Joseph E. McDonald, of Indiana, in the course of the debate \1\ 
stated that the people of Kanesville were certain Mormons, who had from 
necessity settled there temporarily on their way to the valley of Salt 
Lake. They had gathered from all parts of the United States and from 
foreign countries. Kanesville was only a stopping place for them; they 
did not regard it as their permanent home. This was shown by the 
testimony. He thought the law of Iowa conferred the right of suffrage 
not for domicile merely, but for a residence and interest in the place. 
``If a citizen of the United States goes abroad,'' said Mr. McDonald, 
``and chooses to wander through foreign countries, when he returns home 
he is not treated as an alien, but resumes the rights he had 
temporarily laid down. But if an alien comes here to settle and does 
not become a citizen of the United States in due form of law, he is not 
entitled to participate in the franchise which belongs to a citizen.''
  The report of the majority says:

  The committee dismiss the * * * objections urged by the sitting 
Member * * * with the single remark that they are not sustained by the 
evidence which has been presented. The qualifications of voters in the 
State of Iowa, as defined in her constitution, are six months' 
residence in the State of any white male citizen of the United States 
and twenty days' residence in the county in which the vote is claimed 
next preceding the election. It is doubtless true that to constitute 
residence within the constitutional meaning of the term there must be 
the ``intention to remain;'' but this intention is entirely consistent 
with a purpose to change the place of abode at some future and 
indefinite day. Actual abode is prima facie residence, and we are 
unable to perceive anything in the evidence submitted which removes the 
presumption of qualification arising from the actual abode of the 
Kanesville voters within the State.

  The vote in the committee on receiving the Kanesville vote was ayes 
5, noes 4,\2\ but it seems evident that the principal issue on the vote 
was not the question herein set forth, but another question, which is 
considered later.
  4. The sitting Member objected to 56 votes cast for contestant in 
Dallas County at Boone Township on the ground that the voters were 
nonresidents of the county. The issue involved on this point was 
largely one of fact. The majority of the committee, by a vote of 6 to 
3, decided to reject from the poll for contestant 38 of these votes. 
The minority say:

  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.

  Therefore the minority, in the absence of what they considered 
conclusive proof from the sitting Member, held that the votes should 
  \1\ Globe, p. 1295.
  \2\ The report of the committee presents the record of the yea and 
nay votes on the various questions arising in the committee, and 
therefore the action of the committee became a legitimate subject of 
discussion on the floor. (Report No. 400, p. 12; Globe, pp. 1295, 
Sec. 818
  818. The election case of Miller v. Thompson, continued.
  Votes cast by voters having all qualifications except the required 
residence within the county were rejected by a divided committee.
  5. The principal question as to the Kanesville votes.
  This precinct cast 493 votes for contestant and 30 for the sitting 
  The minority views say:

  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 Member. 
It is not pretended that any fraud, injustice, or unfairness was 
practiced by either the voters or the election officers toward anyone, 
but everything seems to have been done honestly, fairly, and in good 
faith, and that the persons voting were legal voters in the district.

  The voting precinct of Kanesville, for the election in question, was 
organized by the authorities of Monroe County under peculiar provisions 
of the Iowa laws, which provided that sparsely settled communities not 
within organized counties should be attached for certain purposes to 
adjacent counties. The minority views claim that at the time of the 
election in question no one doubted that Kanesville precinct should 
vote with Monroe County; but that by a survey made after the election 
it was shown that Kanesville was in fact so situated that it belonged 
under the technical terms of law with Marion or Mahaska County. The 
majority report also claimed that even supposing the territory of 
Kanesville to be properly within the limits assigned to the 
jurisdiction, yet the laws of Iowa, properly construed, did not give 
the commissioners of Monroe County the authority to appoint the 
election officers as they had done; but that the law appointed a 
different, way for the appointment of such officers. The majority say 
in their report:

  By the Constitution of the United States, the times, places, and 
manner of holding elections, and the qualifications of voters, are left 
to the control of the States. The elective franchise is a political, 
not a natural, right, and can only be exercised in the way, at the 
time, and at the place which may be designated by law. If, by the 
constitution and laws of Iowa, therefore, it is required that electors 
should vote only in the counties in which they resided, and at 
designated places within those counties, it can not be doubted that 
votes given in other counties, or at other than the designated places, 
must be treated as nullities. To deny this is to deny to the State the 
power expressly reserved in the Constitution to prescribe the place and 
manner of holding the elections--a power essential to the preservation 
of the purity of elections. Assuming, then, that those who voted at 
Kanesville were qualified voters, it remains to be considered whether 
they voted at the place prescribed by law.

  The majority conclude that they did not, and continue:

  In many of the States the right to vote is confined by law to voting 
in the ward or township in which the elector resides; and, even under 
this more stringent provision, votes in other wards or townships have, 
it is believed, been uniformly adjudged illegal.

  The majority further answer another objection:

  Nor is their the voters' belief that they were rightly voting at 
Kanesville 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 

  The minority call attention to the fact that the entire board of 
commissioners of Monroe County and a majority of the election officers 
at Kanesville were the political friends of the sitting Member. No 
question was raised against the cor-
                                                             Sec. 819
rectness of the procedure until after the election. After commenting on 
the purely technical objections to the votes, the minority conclude 
that they should not be sustained, ``in view of the great principle in 
our institutions which seeks to afford to all the citizens of the Union 
the right of suffrage.''
  In the committee, 5 members voted to receive the votes of Kanesville 
and 4 voted against the reception.
  This question was debated at considerable length on June 26, 27, and 
28,\1\ when the report was before the House.
  819. The election case of Miller v. Thompson, continued.
  A question as to counting the votes of persons whose position in 
relation to the boundaries of the district was in doubt.
  Instance wherein the majority of a committee agreed on a report, but 
disagreed on the facts necessary to sustain the report.
  An Elections Committee being curiously confused as to its majority 
and minority conclusions, the House disregarded both.
  The report of the Elections Committtee not leading to a certain 
conclusion, the House declared the seat vacant.
  The House having negatived a declaration that sitting Member was 
entitled to the seat, it was then declared by resolution that the seat 
was vacant.
  Instance wherein the minority of an Elections Committee recommended 
declarations as to the question in issue.
  6. The contestant claimed that the votes of Boone Township, in Boone 
County, which were cast, 42 for Thompson and 6 for Miller, should be 
rejected because Boone Township was not in the First Congressional 
district, but in the adjoining district, the Second. The minority views 
claim that all the persons who voted in Boone Township actually resided 
at that time in the Second Congressional district, saying:

  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 * * * and in pursuance of this act of Congress, the State of 
Iowa, on the 22d of February, 1847, divided herself into two 
Congressional districts. * * * Now it seems impossible that Congress * 
* * 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?

  Therefore the minority favored the exclusion of the votes of Boone.
  The majority of the committee, after showing how Boone Township was 
for judicial and election purposes added to Polk County, says:

  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.
  \1\ Globe, pp. 1293, 1301, 1310,
Sec. 819
But, unless the vote of Boone Township be received and counted as part 
of Polk County, this constitutional 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 
constitution 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.

  Therefore the majority report concludes that the Boone returns should 
be counted.
  It appears that in the committee, on the question of rejecting the 
Boone returns, there were six ayes and three noes, Mr. Strong, who drew 
the majority report, being among the noes. So it is evident that while 
the majority report favors counting the Boone votes, the majority of 
the committee voted that they should not be counted.
  The majority report concluded that the sitting Member had a majority 
of 15 votes, and recommended this 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.

  The minority found that, as a result of their conclusions, the 
contestant had a majority and was entitled to the seat; but instead of 
reporting a resolution declaratory of his rights, reported a series of 
resolutions in form as follows:

  Resolved, That the 7 votes cast at Pleasant Grove with the middle 
letter of the contestant's name omitted be counted.
  Resolved, That the vote cast at Kanesville be allowed and counted as 
a legal vote.

  And in five other resolutions the remaining points in the case were 
  In the debate in the House on June 27 \1\ Mr. E. W. McGaughey, of 
Indiana, a member of the Committee on Elections, commented on the 
curious state of the report. A majority of the committee had concluded 
that the sittmg, Member was elected, but the Members who composed that 
majority did not all agree on the reception of certain votes needed to 
elect the sitting Member. Mr. McGaughey said:

  Mr. Ashe votes with the majority in favor of the admission of the 
votes at Kanesville, and with the minority against the rejection of 
Boone Township, in the Second district, and as it requires the 
admission of the first and the rejection of the other to decide the 
case in favor of Mr. Miller, it follows that Mr. Ashe comes to the 
final result by his individual computation that Mr. Thomas is elected, 
while, on the other hand, Mr. Harris, of Alabama, and Mr. Harris, of 
Tennessee, voted in committee with the minority against the admission 
of Kanesville, and with the majority in favor of the rejection of Boone 
Township, in the Second district; but as they are in the minority 
against the Kanesville vote, although in the majority in regard to the 
other question, they can by their computation arrive at the final 
conclusion that Mr. Thompson is elected. This presents the singular 
anomaly of men agreeing in a result,
  \1\ Globe, p. 1299.
                                                             Sec. 820
and disagreeing about the very facts necessary to produce that result. 
Now, sir, I maintain, that inasmuch as a majority of the committee 
agree upon a state of facts which shows conclusively that the 
contestant has received a majority of the legal votes, that it follows 
as a necessary consequence that the honorable chairman had no right to 
make a report which denies the right to a seat of the person thus 
decided to have received a majority of the votes, and that his report, 
submitted under such circumstances, should not and can not be regarded 
as the majority report.

  The report was debated on June 26 to 28,\1\ and on the latter date 
the resolutions of the minority, with an added resolution declaring 
Daniel F. Miller, the contestant, entitled to the seat, was offered as 
a substitute for the resolution reported by the majority, confirming 
the title of the sitting Member.
  On the substitute there appeared, yeas 95, nays 94. Thereupon, the 
Speaker voted with the nays, making a tie vote, and so the amendment 
  The question recurring on the resolution of the majority declaring 
William Thompson, the sitting Member, entitled to the seat, there 
appeared, yeas 94, nays 102. So the House declined to affirm that the 
sitting Member was ``entitled to the seat.''
  Some question arose as to the effect of this vote, and whether or not 
it produced a vacancy such as would authorize the Speaker to notify the 
executive of Iowa. After debate \2\ Mr. McGaughey, offered this 
resolution, which was ruled by the Speaker \3\ to present a question of 

  Resolved, That there is now a vacancy in this House in the 
representation from the First Congressional district of the State of 
Iowa, and that the fact of vacancy be notified to the executive of the 
State of Iowa by the Speaker of this House.

  This resolution was agreed to, yeas 108, nays, 84.
  820. The Pennsylvania election case of Littell v. Robbins, Jr., in 
the Thirty-first Congress.
  In 1850 election contests were yet instituted by memorial and 
conducted by rule laid down by the House.
  The records and returns of election officers are presumed to be 
correct and are to be set aside only on conclusive proof.
  Discussion of degree and kind of evidence required to rebut the 
presumption in favor of the acts of election officers.
  On February 4, 1850,\4\ Mr. Joseph R. Chandler, of Pennsylvania, 
presented the memorial of John S. Littell representing that he was duly 
elected a Representative from the Fourth Congressional district of 
Pennsylvania, and praying an opportunity to establish his right to the 
seat occupied by John Robbons, Jr. This memorial was referred to the 
Committee on Elections.
  On January 29,\5\ there being no law at that time regulating the 
conduct of contested elections, the House agreed to a resolution 
governing the taking of testimony and the forwarding of the 
  On August 19,\6\ Mr. William Strong, of Pennsylvania, presented the 
report of
  \1\ Globe, pp. 1292, 1299, 1305, 1315; Journal, pp. 1057-1066.
  \2\ Globe, pp. 1316, 1317; Journal, p. 1065.
  \3\ Howell Cobb, of Georgia, Speaker.
  \4\ First session Thirty-first Congress, Journal, p. 223.
  \5\ Journal, p. 426.
  \6\ Journal, p. 1275; House Report, No. 488.
Sec. 820
the majority of the committee in favor of sitting Member; and Mr. John 
Van Dyke, of New Jersey, minority views in favor of declaring the seat 
  The official majority for Mr. Robbins was 410. In the Penn election 
district of Philadelphia, 924 votes were returned for Mr. Robbins and 
169 for Mr. Littell. The latter alleged frauds which diminished his 
actual vote in the district from 263 to 169, and increased the actual 
vote of the sitting Member from 445 to 924.
  The sitting Member presented no testimony. The testimony relied upon 
by the contestant principally was that given by a committee of citizens 
who stood by the window through which the votes were passed to the 
election officers. In one precinct of the Penn district the list of the 
committee showed 269 less voters than were returned by the officers 
within--all of whom were of the same party as the sitting Member. At 
the other precinct--where the election board was also partisan--the 
committee counted 167 voters less than were recorded by the official 
returns. It further appeared that the return of the election showed the 
names of more persons than were on the registration lists provided by 
law; and it also appeared that an effort to find voters recorded by the 
election officers, but not recorded by the committees who watched the 
voting, failed, although the contestant caused officers with subpoenas 
to search for them.
  It was asserted by the majority of the committee, and admitted by the 
minority, that the contestant had not proven conclusively that any 
votes given for him had been counted for the sitting Member. It was 
also evident that the evidence of the committees of citizens who stood 
by the polling places, even if admitted to be conclusive, did not show 
a sufficient number of fraudulent returns to overcome the majority of 
the sitting Member; but the minority urged that the fraud proven was 
sufficient to justify the throwing out of the whole vote of the Penn 
division. The elimination of that vote would give the seat to the 
contestant; but the minority merely recommended that the seat be 
declared vacant.
  The majority of the committee, however, did not give to the evidence 
of the committees of citizens the importance that the minority 
attributed to them. The majority considered that--

in the absence of anything to rebut it, the presumption must be in 
favor of the correctness of the record kept by the officers of the 
election and their return.'' Fraud is not to be presumed'' is a maxim 
not only of law but of common justice. The means of knowledge, the 
facilities for accuracy, the impossibility of inattention, and the 
responsibilities connected with the failure to discharge their duty, 
all unite to secure a credence to the acts of the officers, which can 
not be justly accorded to the acts of others, especially if those 
others be mere partisans.

  The committee further go on to state that the laws of Pennsylvania 
tended to guard against the perpetration of the frauds alleged. 
Therefore the committee held that the prima facie presumption had not 
been overturned, and reported a resolution declaring the sitting Member 
entitled to his seat.
  On September 11 \1\ the minority moved to substitute for the majority 
resolution a declaration that the seat should be declared vacant. This 
was decided in the negative, yeas 56, nays 110. Then the resolution of 
the majority, declaring Mr. Robbins entitled to the seat, was agreed to 
without division.
  \1\ Journal, pp. 1444-1446.