[Hinds' Precedents, Volume 1]
[Chapter 25 - General Election Cases, 1789 to 1840]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1789 TO 1840.
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1. Cases in the First, Third, and Fourth Congresses. Sections
756-764.\1\
2. Cases in the Eighth, Eleventh, Thirteenth, and Fourteenth
Congresses. Sections 765-773.\2\
3. Cases from the Sixteenth to the Nineteenth Congresses.
Sections 774-777.\3\
4. Cases in the Twenty-first, Twenty-second, and Twenty-fourth
Congresses. Sections 778-786.\4\
5. The Senate cases of Smith, Winthrop, Phelps, and Cass.
Sections 787-790.
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756. The election case of the New Jersey Members in the First
Congress.
In the First Congress an inquiry as to an election was instituted on
a memorial of citizens of the State.
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\1\ Additional cases in this period, classified in different
chapters, are:
First Congress: Smith, of South Carolina. (Sec. 420.)
Second Congress: Jackson v. Wayne, Georgia. (Sec. 708.)
Third Congress: White, Southwest Territory. (Sec. 400.)
Third Congress: Duvall, Maryland. (Sec. 565.)
Third Congress: Edwards, Maryland. (Sec. 567.)
Fourth Congress: Morris v. Richards, Pennsylvania. (Sec. 554.)
Seventh Congress: Hunter, Mississippi. (Sec. 401.)
Seventh Congress: Fearing, Northwest Territory. (Sec. 402.)
Seventh Congress: Van Ness. (See. 486.)
\2\ Additional cases:
Eighth Congress: McFarland v. Purviance. (Sec. 320.)
Eighth Congress: Hoge, Pennsylvania. (Sec. 517.)
Ninth Congress: Spaulding v. Mead, Georgia. (Sec. 637.)
Tenth Congress: Key, Maryland. (Secs. 432, 441.)
Tenth Congress: McFarland v. Culpepper. (Sec. 321.)
Tenth Congress: McCreery, Maryland. (Sec. 414.)
Eleventh Congress: Turner v. Baylies, Massachusetts. (See. 646.)
Thirteenth Congress: Williams, jr., v. Bowers, New York. (Sec. 647.)
Thirteenth Congress: Kelly v. Harris, Tennessee. (Sec. 734.)
Fourteenth Congress: Willoughby v. Smith, New York. (Sec. 648.)
Fourteenth Congress: Root v. Adams, New York. (Sec. 650.)
Fifteenth Congress: Mumford, North Carolina. (See. 497.)
Fifteenth Congress: Earle, South Carolina. (See. 498.)
Fifteenth Congress: Hammond v. Herrick, Ohio. (Sec. 499.)
(See page 979 for notes 3 and 4.)
Sec. 756
In the First Congress the House required its Elections Committee to
hear testimony and arguments on both sides of the case, and to report
facts only to the House.
On March 23, April 1 and 13, 1789,\1\ the Members-elect from New
Jersey appeared and took their seats. On April 8 \2\ all the Members of
the House who had so far attended, including all but one of the New
Jersey delegation, took the oath prescribed by a rule which had, with
other rules, been adopted for governing the proceedings of this, the
first House of Representatives.\3\ No objection was made to swearing in
the New Jersey Members-elect.
On April 28 \4\ the Speaker laid before the House a letter from
Matthias Ogden, referring to sundry petitions annexed thereto, from a
number of citizens of New Jersey, complaining of illegality in the late
election of Representatives for that State. Other petitions of a
similar purport were presented at various times. These petitions were
referred on May 14 to the Committee on Elections, with instructions to
examine the matter thereof, and report the same with their opinion
thereupon to the House.
On May 25 \5\ the committee reported ``that it will be proper to
appoint a committee, before whom the petitioners are to appear, and who
shall receive such proofs and allegations as the petitioners shall
judge proper to offer in support of their said petition, and who shall,
in like manner, receive all proofs and allegations from persons who may
be desirous to appear and be heard in opposition to the said petition,
and to report to the House all such facts as shall arise from the
proofs and allegations of the respective parties.''
The House agreed to this report and referred the matter to the
Committee on Elections.
On August 18 \6\ Mr. George Clymer, of Pennsylvania, from the
Committee on Elections, reported six facts which they had ascertained
from the proofs. It
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(See p. 978 for references to notes 3 and 4.)
\3\ Additional cases:
Sixteenth Congress: Guyon, jr., v. Sage, New York. (Sec. 649.)
Seventeenth Congress: Colden v. Sharpe, New York. (Sec. 638.)
Seventeenth Congress: Lyon v. Bates, Arkansas. (Sec. 749.)
Eighteenth Congress: Bailey, Massachusetts. (Sec. 434.)
Eighteenth Congress: Forsyth, Georgia. (Sec. 433.)
Eighteenth Congress: Biddle v. Richard, Michigan. (Sec. 421.)
Nineteenth Congress: Sergeant, Pennsylvania. (Sec. 555.)
\4\ Additional cases:
Twenty-first Congress: Wright, jr., v. Fisher. (Sec. 650.)
Twenty-third Congress: Letcher v. Moore, Kentucky. (Sec. 53.)
Twenty-third Congress: Allen, Ohio. (Sec. 729.)
Twenty-fifth Congress: Doty v. Moore, Wisconsin, as to prima facie
right, section 569; as to final right, section 403.
\1\ First session, First Congress, Journal, pp. 5, 6, 12.
\2\ Journal, p. 11.
\3\ The House adopted rules, chose officers, and participated in the
count of the electoral vote before the Members were sworn, Journal, pp.
6-10.
\4\ Journal, pp 23, 33, 35.
\5\ Journal, p. 41.
\6\ Journal, p. 83.
Sec. 757
appeared from these findings that the returns of the election were
canvassed by the governor and council, a majority of whom decided to
certify the election of the Members-elect already seated. Three members
of the council protested against this act, offering their protest in
writing. The grounds of this protest did not appear in the report, nor
did the Committee on Elections make any recommendation or depart in any
way from a statement of facts.
On July 14 \1\ the committee made a further report stating that
certain allegations in the petitions required the testimony of some
witnesses which the committee did not consider themselves authorized to
collect; and that they requested the direction of the House in the
manner of proceeding with respect to that testimony, and also with
respect to the request of the petitioners that they might be heard by
counsel on the floor of the House.
757. Case of the New Jersey Members, continued.
In the First Congress the House, after a committee had reported the
facts, decided an election case without further hearing on the floor.
In the First Congress the House did not think it necessary to hear
petitioners in an election case on the floor by counsel.
A returned Member, whose seat was contested in the First Congress,
debated the question as a matter of right.
Reference to the force which should be given to the law of Parliament
by the House of Representatives.
On July 15 \2\ the report was argued on the floor of the House. Mr.
Elias Boudinot, one of the sitting Members from New Jersey, taking the
floor without objection as to his right so to do, submitted that the
certificate of the executive of New Jersey was not the best evidence
that the nature of the case required, and that it would be unnecessary
to send a commission to New Jersey to take testimony, which would have
to be ex parte because of the inconvenience of having the opposite
party attend to cross-examine. Furthermore the precedent would be
dangerous because if followed as to more remote States,\3\ like
Georgia, commissions would have to be sent there, and the House would
be precluded from viva voce testimony, which was the most satisfactory.
It seemed that the evidence already before the House, and such as might
be further advanced by the petitioners by viva voce evidence, would be
sufficient for a decision.
Mr. Richard Bland Lee, of Virginia, urged that the report should be
recommitted and that the committee be authorized to send for evidence,
papers, and records, and report a special state of facts. He said it
was the custom of the British House of Commons, upon similar occasions,
to leave the whole business to a committee; and Mr. Lee further
observed \4\ that the experience of so old and experienced a
legislative body could be followed with safety and propriety. On the
other hand, Mr. Samuel Livermore, of New Hampshire, urged that the
committee be discharged and that a day be appointed to hear the
parties.
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\1\ Journal, p. 60; Annals, p. 637.
\2\ Journal, p. 61; Annals, pp. 638-642.
\3\ The Congress at this time was sitting in New York City.
\4\ Annals, p. 641.
Sec. 758
A motion was made that the parties be permitted to be heard by
counsel and was favored generally by those who favored a trial before
the House. Mr. James Madison, of Virginia, favored the admission of
counsel; but the motion was withdrawn without decision.
The report was considered again on September 1 and 2,\1\ and on the
latter day, without having heard counsel or taken other evidence, the
House agreed to this resolution:
Resolved, That it appears to the House, upon full and mature
consideration, that James Schureman, Lambert Cadwalader, Elias
Boudinot, and Thomas Sinnickson were duly elected and returned to serve
as Representatives for the State of New Jersey in the present Congress
of the United States.
758. The Delaware election case of Latimer v. Patton in the Third
Congress.
The State law having prescribed a form of ballot and voting, the
House rejected ballots cast in different form.
The returned Member being unseated by rejection of informal ballots,
the House seated the contestant.
Discussion in 1793 as to propriety of seating a petitioner after the
unseating of the returned Member.
An early election case instituted by petition and tried before the
House.
On December 4,1793,\2\ the petition of Henry Latimer, of the State of
Delaware, was presented to the House and read, complaining of an undue
election and return of John Patton, to serve as a Member of the House
from Delaware. This was later referred to the Committee on Elections.
On December 13 \3\ Mr. Patton appeared and took the oath.
On February 10, 1794,\4\ the committee reported. It appeared from
this report that the law of Delaware provided ``that every person
coming to vote for a Representative, agreeably to the direction of the
said act, shall deliver, in writing, on one ticket, or piece of paper,
the names of two persons, inhabitants of the State, one of whom, at
least, shall not be an inhabitant of the same county with himself, to
be voted for as Representative.''
The returns of the election gave John Patton 2,273 votes and Henry
Latimer 2,243 votes, a majority of 30 votes for Patton.
It appeared from the evidence taken by the committee that in some
voting places double votes were rejected, and in others single votes
were received, which led the committee to this conclusion:
That, agreeably to the election law of Delaware, the 4 votes in Kent
County containing the names of Henry Latimer and George Truit which
were rejected ought to have been received and counted for Henry
Latimer; and the 68 single votes in Sussex County which were received
and counted for the said John Patton ought to have been rejected; that
if the aforesaid 4 votes in Kent County had been received, and the
aforesaid 68 votes in Sussex County had been rejected, as was required
by law, the said Henry
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\1\ Journal, p. 95; Annals, pp. 834, 835.
\2\ First session Third Congress, Journal, p. 9.
\3\ Journal, p. 15.
\4\ Journal, p. 59; Contested Election Cases (Clarke), p. 69.
Sec. 759
Latimer would have had, after deducting the 9 single votes received and
counted for him in Sussex County, a majority of 33 votes. The committee
are, therefore, of opinion that John Patton is not entitled to a seat
in this House; they are also of opinion that Henry Latimer is entitled
to a seat in this House as a Representative of the State of Delaware.
This report, accompanied by certain written observations thereon by
the sitting Member, tending to controvert the reasoning and conclusions
of the report, was referred to the Committee of the Whole House, where
it was considered on February 13,\1\ after which the House agreed to
the following:
Resolved, That the Committee of the Whole House be discharged from
proceeding thereon, and that the hearing on the trial of the said
contested election be now proceeded on in the House, Mr. Speaker in the
chair.
The House then proceeded to hear the depositions and other exhibits,
as well as the written observations of the sitting Member.
On February 14 \2\ the reading of the depositions was concluded, and
the parties retired from the bar.
Thereupon the House agreed to this resolution, apparently without
division:
Resolved, That John Patton is not entitled to a seat in this House.
The following resolution was then proposed:
Resolved, That Henry Latimer is entitled to a seat in this House as
the Representative of the State of Delaware.
Mr. John Page, of Virginia, antagonized this resolution.\3\ He said
that in the case of Jackson v. Wayne, where corruption was shown, he
had favored the seating of the contestant, who had a majority of sound
voters, but the House had decided to keep itself free from partiality
and had declined to admit the petitioner. In this case no corruption
was alleged. If the 68 freemen of Sussex had violated the law, he
nevertheless did not think that the violation was of such a nature as
to deprive them of the right of suffrage. There was no doubt that the
majority voted for Mr. Patton, and he should not vote to force on the
electors a Representative for whom a majority did not vote. Hence he
should oppose the pending resolution.
The resolution was agreed to, yeas 57, nays 31.
Mr. Latimer thereupon appeared and took the oath.
759. The New York election case of Van Rensselaer v. Van Allen in the
Third Congress.
The major part of the votes in a district being honestly given and
duly canvassed, the person having a plurality of such major part was
held to be elected.
An early decision that corruption in a small fraction of the votes
should not vitiate an election.
No fraud being shown, votes were counted, although the box was for a
time irregularly in the custody of sitting Member.
A question as to whether the House should reject votes for
irregularities not sufficient to cause their rejection under State law.
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\1\ Journal, p. 62.
\2\ Journal, p. 63.
\3\ Annals, p. 454.
Sec. 759
The committee in 1793 declined to permit a ballot to be impeached by
the testimony of the voter after the act of voting.
On December 6, 1793,\1\ a petition was presented to the House on the
part of Henry K. Van Rensselaer, complaining of the undue election and
return of John E., Van Allen, as a Member from the State of New York,
and giving the following grounds therefor:
1. That in Stephentown, which is comprehended within the election
district from which the said John E. Van Allen is returned, there were
more votes actually given for the petitioner than appear, from the
return of the committee who were appointed by law to canvass and
estimate the votes, to have been canvassed and counted.
2. That in the town of Hosack, also included in the said district,
the ballot box was not locked agreeably to law, but was only tied with
tape.
3. That, at the time of the election, the said John E. Van Allen, who
was not an inspector of the election, had in his possession the ballot
box of the town of Rensselaerwick, which is also comprehended in the
said district.
On December 9 and 18 \2\ the Committee on Elections reported the
following:
It appears to your committee that the allegations in regard to
Stephentown, viz, ``that the petitioner had a greater number of votes
in the said town than was returned to be estimated and canvassed,''
even if proved, would not, consistently with the law of the State of
New York, be sufficient to set aside the votes given at the election in
the said town; that even should the irregularities complained of with
respect to the elections of the towns of Hosack and Rensselaerwick, be
sufficient to set aside the votes given in the said towns, still it
appears that the said John E. Van Allen has a majority of the remaining
votes of the district composed of the counties of Rensselaer and
Clinton.
On December 20,\3\ Mr. Richard Bland Lee, of Virginia, speaking for
the Elections Committee, stated the following summary of the questions
arising:
1. Whether irregularities not deemed by the law of New York
sufficient to nullify the votes given shall be regarded by the House of
Representatives as having that effect? None of the irregularities were
regarded by the law of New York as sufficient to vitiate the returns of
votes made by the inspectors, who are sworn officers, and subject to
pains and penalties for failure of duty. If the law of New York is to
be observed as a sovereign rule on this occasion, the allegations do
not state any facts so material as to require the interference of the
House of Representatives.
2. Whether, setting aside this first principle, mere irregularities
not alleged to have proceeded from corruption shall nullify the return
of sworn officers; and whether the House of Representatives ought to
countenance and inquire into the mere implications of such serious
crimes as perjury and corruption, or should require such charges to be
expressly and specifically made?
3. Whether it is or not an indispensable requisite to the existence
of a representative government that at every election a choice should
be made?
4. Whether, to insure such choice, it is not necessary that this
principle should be established: That a majority of legal votes,
legally given, should decide the issue of an election?
5. Whether, therefore, partial corruption should be deemed sufficient
to nullify an election, or only sufficient to vitiate the votes given
under such corruption, leaving the election to be decided by the sound
votes, however few?
6. Whether, if partial corruption should [not] be deemed sufficient
to nullify an election, such corruption should not extend to the major
part of the votes given, and if the major part of the votes be deemed
sound, the fate of the election should not depend on the plurality of
votes in such major part?
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\1\ First session Third Congress, Contested Elections in Congress,
from 1789 to 1834, p. 73 Journal, p. 13.
\2\ Journal, pp. 14, 17.
\3\ Annals, p. 146.
Sec. 760
Mr. Lee declared that the last was the opinion of the committee, and
finding a major part of the votes duly given and canvassed, and that
Mr. Van Allen had a plurality of such major part, they had determined
that he was duly returned.
Objection was made that the House possessed the exclusive right to
judge of the elections and returns of its own Members, and that the law
of New York should not operate to exclude from the knowledge of the
House the full amount of the number of votes given. The House should
ascertain with precision the actual state of the polls. If the votes of
citizens could, under any pretext, be suppressed the essential rights
of suffrage were at an end.
On behalf of the committee it was stated that the action of the
returning officers of towns in rejecting some votes given in for
petitioners was in accordance with the law of New York. The petitioner
stated that numbers of persons had sworn that they had voted for
petitioner, although it appeared that their votes were not counted. The
committee did not consider this allegation proper to engage their
attention, and it was presumed that the House of Representatives would
never institute an inquiry into such a species of evidence. It was
extremely difficult for a man to swear that he had positively voted by
ballot for a particular candidate, since it was well known that persons
sometimes became confused and cast the wrong ballot. The law of New
York justifying the rejection of the votes had been passed under the
sanction of the Constitution.
It was also urged against the report that corruption should not be
considered by weight and measure, and that admitted irregularities
should vitiate an election.
The committee felt that, in a district of ten towns, irregularities
in two towns should not vitiate the election, when the voters in those
two towns did not amount to a majority of the whole number of votes in
the district.
With respect to the deposit of a box containing a part of the votes
in the house of sitting Member, the committee did not give it weight,
since it had not been shown that the votes were tampered with, and the
petitioner had not charged that sitting Member was accessory to any
unfair practices.
On December 24,\1\ the House refused to recommit the report, and then
agreed to the following:
Resolved, That the allegations of the petition do not state
corruption nor irregularities of sufficient magnitude, under the law of
New York, to invalidate the election and return of John E. Van Allen to
serve as a Member in this House, and that therefore the said John E.
Van Allen is duly elected.
760. The Virginia election case of Trigg v. Preston in the Third
Congress.
The House, overruling its committee, declined to invalidate a close
election because of an interference, not shown definitely to have been
effective, by a body of United States troops.
The negativing of a resolution declaring a sitting Member not elected
left him undisturbed in his seat.
An early election case instituted by petition and tried before the
House.
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\1\ Journal, p. 20.
Sec. 761
In 1794 \1\ the seat of Francis Preston, of Virginia, was contested
by Abraham Trigg, whose petition was presented December 26, 1793,\2\
and referred to the Committee on Elections.
The committee's examination of the case showed that the sheriff
holding the election in one county had exercised a discretionary power,
given him by the law of Virginia, of closing the poll at any time of
day, after three proclamations and no voters appearing. In another
county the sheriff exercised the same discretionary power, vested in
him by the law of the State, to adjourn the election in consequence of
rain.
These facts, which militated in favor of the sitting Member, were
not, however, the portion of the case most in controversy. In
Montgomery County the election had been disturbed by a body of United
States troops, not shown to have been under arms, but marched about
under command of Capt. William Preston, their officer and brother and
election agent of the sitting Member, and who was armed with sword and
dagger. The committee were unable to ascertain, from the conflicting
testimony, that any voter was actually prevented from voting, yet there
was reasonable ground to believe that some were, and that the election
was unduly biased by the soldiers. As the petitioner lost his election
by only 10 votes, the committee concluded that the result had been
changed, and that Mr. Preston was not entitled to his seat. The
committee stated that the soldiers were not disfranchised of the right
of voting, but that their votes, which were for the sitting Member,
were kept separately and afterwards were rejected by the returning
officers.
After debate the House, without division, decided in the negative
this resolution:
Resolved, That Francis Preston is not duly elected a Member of this
House.
This decision confirmed the sitting Member, no question apparently
being made as to the effect of the vote.\3\
This election case was tried before the House after the forms in the
cases of Jackson v. Wayne and Latimer v. Patton.\4\
761. The Vermont election case of Lyon v. Smith in the Fourth
Congress.
Notices of election having failed to reach two towns in a district,
and no votes being cast in those towns, the House declined to affirm
sitting Member's title without direct evidence as to the numbers of
voters in the towns.
The House declined to reverse a return on the possibility, but not
the probability, that the voters of two towns accidentally not included
in the notice of election might have changed the result had they voted.
On December 8, 1795,\5\ a petition was presented to the House from
Matthew Lyon, complaining of an undue election and return of Israel
Smith, to serve as a
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\1\ First session Third Congress, Contested Elections in Congress,
from 1789 to 1834, p. 78.
\2\ Journal, p. 21.
\3\ Journal, p. 134; Annals, p. 613.
\4\ Journal, pp. 133, 134.
\5\ First session Fourth Congress, Journal, p. 369.
Sec. 761
Member from the State of Vermont. This petition was referred to the
Committee on Elections. On December 25 \1\ the Speaker laid before the
House a letter from Matthew Lyon transmitting further testimony, which
was referred to the Committee on Elections.
On January 27, 1796,\2\ Mr. Abraham Venable, of Virginia, submitted
the report of the committee, which showed that the first election in
the district in question did not result in a choice. Thereupon a new
election was ordered, and warrants were issued for a new election. The
sheriff of the county of Addison failed to deliver the warrants to the
towns of Kingston and Hancock, which in the first election had given
votes as follows: Kingston, 12 for Israel Smith; Hancock, 3 for Matthew
Lyon. At the second election in the district the vote returned was: For
Israel Smith, 1,804; Matthew Lyon, 1,783. Therefore the committee
concluded:
That as it does not appear to the satisfaction of the committee that
there was a sufficient number of freemen in those two towns to have
altered the state of the election, fifteen only having voted on the
first occasion, they are of opinion that Israel Smith is entitled to
take his seat in this House.
On February 4 \3\ Mr. Uriah Tracy, of Connecticut, moved that the
report be recommitted in order that the petitioner might have the
opportunity to bring forward legal testimony. It appeared that all of
petitioner's testimony had been taken ex parte, and therefore had not
been considered by the committee, which had based its conclusions on
the returned votes of the two towns at the preceding election.
On February 11, 12, and 15 \4\ the motion to recommit was debated at
length. It was urged that the petitioner should have sent competent
testimony, and that it was not the business of the House to hunt up
evidence. On the other hand, it was urged that the House had adopted no
regulations concerning the taking of testimony, and the petitioner had
no power to take anything but ex parte testimony. It was also intimated
that the sheriff acted with fraudulent intent. The consideration of the
subject was finally postponed until March 29.
On February 16,\5\ however, Mr. James Hillhouse, of Connecticut,
proposed a rule for taking testimony in election cases, with a view to
its applicability to the pending contest, but the matter was postponed.
On February 17 \6\ the House reconsidered its decision to postpone
the case of the petitioner, and recommitted the report.
On March 29 \7\ the petitions of sundry electors and citizens of the
towns of Kingston and Hancock, stating that they had been deprived of
their right of voting, etc., were received and referred to the
Committee on Elections.
On May 13 \8\ Mr. Venable submitted the second report of the
Committee on Elections. This report was as follows:
That it appears by the deposition of the town clerk of Hancock that
there were 17 persons in the said town who were entitled to vote; 12 of
whom are stated to have been admitted in that town and 5 in other towns
That, by a like deposition of the clerk of Kingston, it appears that
there were in that town 19 persons, 17 of whom had been qualified in
that town, and 2 in other towns.
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\1\ Journal, p. 386.
\2\ Journal, p. 429; Contested Election Cases, Clarke, p. 102.
\3\ Annals, p. 295.
\4\ Annals, pp. 315-328.
\5\ Journal, p. 444; Annals, p. 331.
\6\ Journal, p. 446; Annals, p. 338.
\7\ Journal, p. 486.
\8\ Journal, pp. 555, 597; Annals, p. 1497.
Sec. 762
That it does not appear that the warrants were withheld from the said
towns by the sheriff from any fraudulent intention, but the failure was
accidental as to the town of Kingston, and the warrant was not sent to
the town of Hancock because the sheriff believed they had not voted at
the first meeting.
On May 31 \1\ the following resolution was proposed:
Resolved, That as there appears to have been a sufficient number of
qualified voters in the towns of Kingston and Hancock to have changed
the state of the election, Israel Smith was not duly elected.
This was advocated on the grounds that there were voters enough in
the two towns to have changed the election, and also because the
principle should be established that every town should have notice of
election.
On the other hand, the possibility, but not the probability, that the
36 voters in the two towns would have changed the election, was
admitted. Against his, however, was balanced the vote in the previous
election, and the fact that Mr. Lyon could only bring twenty to declare
that they would vote for him. Had those twenty voted for him, and none
for Mr. Smith, the latter would have a majority of one vote. But seven
had made affidavit that they would have voted for Mr. Smith.
The House disagreed to the resolution, yeas 28, nays 41. Then it was:
Resolved, That Israel Smith is entitled to a seat in this House as
one of the Representatives from the State of Vermont.
762. The Virginia election case of Bassett v. Clopton in the Fourth
Congress.
The House having deducted from the returns the number of votes cast
by disqualified persons, awarded the seat to the candidate receiving
the highest number of votes cast by qualified voters.
On January 18, 1796,\2\ the Committee on Elections reported as
follows in the Virginia contested election case of Bassett v. Clopton,
holding:
That, upon an estimate of all the polls taken at the several
elections, John Clopton had 432 votes, and Burwell Bassett 422.
That, out of the number of persons who voted for John Clopton, 37
were unqualified to vote; and of those who voted for Burwell Bassett,
33 were also unqualified to vote.
Whereupon, your committee are of opinion that John Clopton, who has
the highest number of votes, after deducting the before-mentioned
defective votes from the respective polls, is entitled to a seat in
this House.
In this report the House concurred.
763. The Massachusetts election case of Joseph Bradley Varnum in the
Fourth Congress.
Instance of an election case instituted by memorial from sundry
citizens and electors of the district.
In an election case where it is alleged that votes have been cast by
persons not qualified, the names of such persons should be given in the
notice of contest.
In an election case an allegation that a certain number of votes were
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\1\ Journal, p. 597; Annals, p. 1497.
\2\ First session Fourth Congress, Contested Elections in Congress,
from 1789 to 1834, p. 101.
Sec. 763
cast by proxy was conceded sufficiently certain without specification
of the names.
The House declined to assist sundry petitioners in a district to
collect testimony in proof that the seat of a returned Member should be
declared vacant.
Certain petitioners against the right of a returned Member to his
seat having impugned his personal conduct in the election, the House
rendered a decision thereon.
On February 25 and 26, 1796,\1\ memorials were presented from sundry
citizens and electors of the Second middle district in Massachusetts,
whose names were thereunto subscribed, complaining of an undue election
and return of Joseph Bradley Varnum, returned as a Member of the House
from the said district, and praying, for certain reasons stated in the
memorials, that the seat be declared vacant. These memorials were
referred to the Committee on Elections. On March 9,\2\ Mr. Theodore
Sedgwick, of Massachusetts, presented certain testimony in the case,
which was also referred.
On March 15 \3\ Mr. Abraham Venable, of Virginia, submitted the
report of the committee. The report stated that Aaron Brown, a
petitioner, had filed a paper making the following specifications:
1. That 185 votes were returned by the selectmen of Dracut, and
counted by the governor and council.
2. That, of those, 60 were illegal and bad, 55 ballots or votes being
received and certified by the selectmen or presiding officers, of whom
Joseph Bradley Varnum, esq., was one, which were given by proxy; that
is, from persons who were not present at the meeting, but from other
persons who pretended to act for them; and 5 votes were received and
certified by the said presiding officers, which were given by persons
by law not qualified to vote at said meeting.
3. If Mr. Varnum does propose to examine the proceedings at the
meetings of any other towns in the district, the petitioners wish to
reserve liberty of showing that votes given for Mr. Varnum, in any
other town in the district were illegal.
The petitioners expect to prove that the above 60 illegal votes were
received by the selectmen, by showing that the whole number of legal
voters was not more than 225, of which number 100 did not attend the
meeting on the 23d day of March last; and a part of those who did
attend and vote were not legally qualified to vote.
The committee also reported that there was a requisition of the
sitting Member that the petitioners be held to a specification of the
names of the persons objected to, and the objection to each, and a
notification thereof to the sitting Member before he should be
compelled to take evidence concerning the matters alleged, or make any
answer thereto. Therefore, the committee asked the instructions of the
House as to the kind of specifications to be demanded of the
petitioners, and the manner in which the evidence should be taken.
This report was debated at length in Committee of the Whole. It was
urged that as Mr. Varnum, had a majority of only 11 votes, the election
would be invalidated if 23 of the 60 votes charged to be illegal were
really proven to be so. It had been impossible to get the names of the
illegal voters in Dracut, as the town clerk had
-----------------------------------------------------------------------
\1\ First session Fourth Congress, Journal, pp. 450, 451.
\2\ Journal, p. 468.
\3\ Journal, pp. 471, 472; Contested Election Cases, Clarke, p. 112;
Annals, p. 823.
Sec. 764
refused to give certified copies of his records, and the inhabitants of
the town would not give information against Mr. Varnum.
On the other hand it was argued that to give the power to take
testimony would be to make the House a party to a search for testimony,
a practice which would result in harassment to Members.
Mr. Varnum was heard as a matter of course during the debate.
The Committee of the Whole agreed to and reported the following
resolutions, which were agreed to by the House on that day: \1\
Resolved, That the allegation of Aaron Brown, agent of the
petitioners, as to 55 votes given by proxy is sufficiently certain.
Resolved, That the allegations of said Aaron Brown, as to persons not
qualified to vote, is not sufficiently certain; and that the names of
the persons objected to for want of sufficient qualifications, ought to
be set forth, prior to the taking of testimony.
Mr. Sedgwick had proposed in Committee of the Whole a resolution
providing that the Committee on Elections should prescribe a method of
taking testimony in this case, but it was not acted on.\2\
On January 19, 1797,\3\ at the next session, the committee reported:
That none of the petitioners or their agents have appeared at the
present session to prosecute, nor have they transmitted any evidence to
support their allegations.
That the sitting Member has produced evidence to show that the
election in the town of Dracut, where the irregularities were suggested
to have been committed, was conducted with the utmost fairness and
propriety, especially as it relates to his conduct. That, although some
little irregularity was practiced, it was in other towns, in favor of
another candidate, and chiefly by those persons who have since been the
active agents of the petitioners.
Your committee are therefore of opinion that Joseph Bradley Varnum
was duly elected, and that the attempt to deprive him of his seat was
rather the effect of malevolence than a desire to promote the public
good.
On January 25,\4\ by a vote of yeas 44, nays 28, the last clause of
the last paragraph, characterizing the attempt as the effect of
malevolence, was stricken out and the following inserted:
and that the charges contained in the said petitions against the
sitting Member are wholly unfounded, and that the conduct of the
sitting Member appears to have been fair and unexceptionable throughout
the whole transaction.
On January 26 \5\ the report as amended was agreed to.
764. The Pennsylvania election case of David Bard in the Fourth
Congress.
A failure of the canvassing board to meet within the time required by
law being satisfactorily explained, was held by the House not to affect
the Member's title.
Instance of an inquiry into a Member's title to his seat by the
Elections Committee under authority of general investigations.
In the earlier practice the credentials of Members were passed on by
the Elections Committee (footnote).
-----------------------------------------------------------------------
\1\ Journal, p. 487.
\2\ Annals, p. 823.
\3\ Second session Fourth Congress, Journal, p. 650.
\4\ Journal, pp. 659, 660.
\5\ Journal, p. 661.
Sec. 765
On March 18, 1796,\1\ the Committee on Elections, who had
investigated ex officio the credentials \2\ of David Bard, of
Pennsylvania, found that the Member's title was not invalidated by
reason that the county judges, who were required by State law to meet
November 15 to canvass the vote, had actually not met until May 1
following. This informality was occasioned by the delay of a return of
the soldier votes of one county and by failure of one county judge to
be informed as to a change of the law providing for the meeting of the
judges. The committee sent for and canvassed the county returns on
which the district return had been based, and reported to the House the
result, showing the election of Mr. Bard.
The House agreed to the report, confirming the title of Mr. Bard.
765. The Virginia election case of Moore v. Lewis in the Eighth
Congress.
The House having deducted from the returns the number of votes cast
by disqualified persons, awarded the seat to the candidate receiving
the highest number of votes cast by qualified voters.
The House in 1803 permitted a contestant in an election case to be
heard by counsel at the bar of the House.
On February 24, 1803,\3\ on the subject of the contested election of
Moore v. Lewis, from Virginia, the Committee on Elections made a report
containing the following summary:
That all the persons who voted for Thomas Lewis in the several
counties aforesaid, which compose the western district of the State of
Virginia, were 1,004, and that all the persons who voted for Andrew
Moore in the said counties were 832.
It further appears, on a deliberate scrutiny, that of the above votes
355 persons voted for Thomas Lewis who were unqualified to vote and
that 124 voted for Andrew Moore who were unqualified to vote; and that,
by deducting the unqualified votes from the votes given for each of the
parties at the elections, Thomas Lewis has 649 good votes and Andrew
Moore has 708 good votes, being 59 votes more than Thomas Lewis.
Therefore the committee were of the opinion that Thomas Lewis was not
elected and not entitled to his seat, and that Andrew Moore, who had
the highest number of votes after deducting the unqualified votes, was
duly elected and entitled to the seat.
The House on March 1 confirmed the first proposition of the committee
by a vote of yeas 68, nays 39. The second proposition was also agreed
to; yeas 64, nays 41.
Mr. Moore thereupon took his seat.\4\
-----------------------------------------------------------------------
\1\ First session Fourth Congress, Contested Elections in Congress
from 1789 to 1834, p. 116; Journal, pp. 474, 475.
\2\ The credentials of Members were referred and examined at this
time by the Elections Committee under authority of a resolution usually
adopted at the first of each Congress, and for this Congress in form as
follows:
Resolved, That a standing Committee on Elections be appointed, whose
duty it shall be to examine and report upon the certificates of
election or other credentials of the Members returned to serve in this
House, etc. (First session Fourth Congress, Journal, p. 366.)
\3\ First session Eighth Congress, Contested Elections in Congress
from 1789 to 1834, p. 128.
\4\ Leave was granted to the memorialist and sitting Member to be
heard by counsel at the bar of the House. (Journal, pp. 609, 615.)
Sec. 766
766. The election case of Randolph v. Jennings, from Indiana
Territory, in the Eleventh Congress.
The House, overruling its committee, declined to unseat a returned
Delegate because in calling the election the governor had exercised
doubtful authority.
On January 12, 1810,\1\ the House came to a decision in the contested
election case of Randolph v. Jennings, from the Territory of Indiana.
It was alleged in this case that there were informalities in the
return of the vote, that two districts, by fault of a sheriff, did not
vote, and finally that the authority under which the election was
called by the governor was defective. The committee reported only on
the last objection, which they conceived to be fundamental, and they
found that, by reason of defective legislation of Congress, the
governor did not have full authority to do what he had assumed to do.
The committee state the case thus:
If the governor of the Indiana Territory, instead of exercising the
legislative authority of Congress on what he supposed a liberal
construction of the law, had represented the case to Congress at the
last session the defect would have been supplied and the Territory now
legally represented in Congress. It can not be admitted that the
governor of a Territory may, by his own authority, supply a want or
defect of a law of Congress on his own opinion of a liberal
construction, expediency, or necessity. To sanction such an assumption
of power by a vote of this House would set a dangerous precedent. On
this view of the subject the committee submit the following resolution:
Resolved, That the election held for a Delegate to Congress for the
Indiana Territory, on the 22d of May, 1809, being without authority of
law, is void, and consequently the seat of Jonathan Jennings, as a
Delegate for that Territory, hereby declared to be vacant.
A motion in the House to strike out the words ``being without
authority of law,'' was negatived, 51 to 45.
The House, after debate, nonconcurred in the report of the committee,
by a vote of 83 to 30.
A resolution was then proposed declaring Mr. Jennings entitled to his
seat.
The motion was withdrawn after debate.
Mr. Jennings therefore retained the seat.
767. The first election case of Taliaferro v. Hungerford, from
Virginia, in the Twelfth Congress.
The House, overruling its committee, concluded to decide an election
case as made up without giving sitting Member time for further
investigation.
The House, having corrected the returns by an ascertainment of the
qualifications of certain voters, seated the contestant in accordance
with the findings.
On November 21, 1811,\2\ the Committee on Elections reported on the
Virginia contested election case of Taliaferro v. Hungerford. The
committee found that according to the laws of Virginia the land list of
the year prior to the election was prima facie evidence of all the
freeholders in the county. A correction of the poll in accordance with
the land list was made by the committee, and resulted in such
-----------------------------------------------------------------------
\1\ Second session Eleventh Congress, Contested Elections in Congress
from 1789 to 1834, p. 240; Journal, pp. 171, 172; Annals, p. 1199.
\2\ First session Twelfth Congress, Contested Election Cases in
Congress, from 1789 to 1834, p. 246.
Sec. 768
changes that in the district the majority of six votes for the sitting
Member was changed to a majority of 121 for Mr. Taliaferro.
The committee, however, conceived that a longer time should be given
the sitting Member to investigate the facts, the land-list test not
being considered conclusive. The contestant had filed notice of contest
in ample time; but his purpose to follow up the notice with actual
steps to contest had not, the committee thought, been developed in time
to allow the sitting Member to complete his case.
The House, by a vote of 46 to 65, disagreed to the recommendation of
the committee.
Then, by a vote of 67 to 29, Mr. Hungerford was declared not entitled
to the seat; and by a vote of 66 to 19, Mr. Taliaferro was declared
entitled to the seat. Mr. Taliaferro, thereupon appeared and qualified.
768. The second election case of Taliaferro v. Hungerford, from
Virginia, in the Thirteenth Congress.
The House, overruling its committee, declined to reject returns
because of irregular making up of poll books and returns, no fraud
being charged.
On June 10, 1813,\1\ the Committee on Elections reported in the
second contest of Taliaferro v. Hungerford, from Virginia. The
committee in this report found that the election was illegal and John
P. Hungerford was not entitled to the seat, because of neglect on the
part of certain election officers to comply with the law of Virginia,
which directed that ``the clerks of the polls shall enter in distinct
columns, under the name of the person voted for, the name of each
elector voting for such person.'' The law further directed that ``the
clerks of the polls having first signed the same and made oath to the
truth thereof, a certificate of which oath, under the hand of the
magistrate of the county, shall be subjoined to each poll, shall
deliver the same to the sheriff,'' etc.
The committee found numerous deviations from this law, in one county
the names of the voters being all entered in one column, while figures
were placed under the names of the candidates to show for whom each
person's vote was given. In another county the names of the voters were
entered in the same way, straight marks instead of figures being
carried into the columns under the names of the candidates. In other
counties, four in all, no certificate was found of any oath
administered to the clerks of the polls. In one county the Christian
name of the candidate was not written on the poll, the initial only
being given.
The sitting Member contended that these deviations were sanctioned by
long practice.
The committee, however, were sensible that trivial errors of officers
conducting elections should not deprive any class of citizens of
representation. But ``to preserve the elective franchise pure and
unimpaired, the positive commands and requirements of the law, in
respect to the time, place, and manner of holding elections, ought to
be observed. To enter the names of the voters promiscuously in one
margin of the poll book, when the law positively directs them to be
`entered in distinct columns' and `under the name of the candidate
voted for,' is as manifest a
-----------------------------------------------------------------------
\1\ First session Thirteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 250.
Sec. 769
departure from the law as the selection of another time or another
place than that mentioned in the law. Nor can the committee conceive
that the prefixing the initial only of the Christian name to that of
the family or surname of the voter is a fair compliance with the spirit
and intent of the law.''
The House, by a vote of 78 to 82, refused to agree to the
recommendation of the committee, and on June 16, the report was
recommitted.
On June 28 the committee again reported, in this case their report
dealing with the comparison of the poll with the land list; but the
committee concluded that this land list was not a conclusive test of
the legality of the poll under the Virginia law, and that testimony
might be admitted to impeach it. Therefore they held that in this
respect the petitioner had not sustained his contention.
On July 31, 1813, the case was postponed until the next session of
Congress, when it was again referred to the Committee on Elections. On
January 10, 1814, the committee reported that after mature
consideration they had come to the conclusion--
That this election is void, and ought to be set aside, because it was
conducted in an irregular manner, contrary to the law of Virginia
prescribing the manner of conducting such elections, as is more
particularly set forth in the first report.
The committee therefore proposed that the ``said election was illegal
and ought to be set aside;'' and ``that John P. Hungerford is not
entitled to a seat in this House.''
On February 1, 1814, the Committee of the Whole reported their
disagreement to these propositions, and on February 17 the House
concurred with the Committee of the Whole. So Mr. Hungerford retained
the seat.
769. The Virginia election case of Bassett v. Bayley in the
Thirteenth Congress.
Form of resolution confirming the title of sitting Member to his
seat.
A sheriff having adjourned an election for a reason not specified as
a cause of adjournment, the Elections Committee rejected votes cast
after such adjournment.
On February 11, 1814,\1\ the House, in the contested election case of
Bassett v. Bayley, of Virginia, agreed to the following resolution,
reported from the Committee on Elections on February 2:
Resolved, That the sitting Member is entitled to his seat.
The committee arrived at this result by deducting from the vote as
originally returned those votes illegally given, a process which still
showed a majority for the sitting Member.
The largest deduction was one of 53 votes from the total of the
sitting Member. This deduction represented the votes cast on the second
and third days of the election in Accomac County. The law of Virginia
allowed the continuance of a poll by the officer in charge beyond the
first days in cases where a rain had fallen, where there had been a
rise of the water courses, or where more electors attended than could
vote in one day. The committee found that none of these conditions
-----------------------------------------------------------------------
\1\ First session Thirteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 254.
Sec. 770
prevailed and that the action of the sheriff was illegal. Therefore
they recommended the deduction of the votes cast on the second and
third days. But such deduction was not sufficient to destroy the
majority of the sitting Member.
This case had first been reported June 3, 1813, when a further
examination of evidence was recommended. The House recommitted the
report, with the result that the subject went over to the next session.
770. The Virginia election case of Porterfield v. McCoy in the
Fourteenth Congress.
Having deducted from the poll all the votes illegally given, the
House confirmed the title of sitting Member, who had a majority of
legal votes.
In a report sustained by the House, the Elections Committee declined
to reject testimony not taken according to the practice established by
State laws.
No fraud or injury being alleged, the Elections Committee declined to
reject a poll because of neglect of the election officers to take the
required oath.
The Elections Committee, in a sustained case, declined to reject a
poll because of informalities, in the poll books and return.
On February 19, 1816,\1\ the Committee on Elections, to whom was
referred the Virginia contested election case of Porterfield v. McCoy,
reported that after deducting from the poll on both sides the votes
illegally given, they found that the sitting Member had a majority of
75 over the petitioner.
In the determination of this case the committee made certain rulings,
which they reported to the House.
The sitting Member had objected to the testimony of the petitioner on
the ground that it had not been taken within the period limited for
that purpose in contested elections for members of the Virginia
legislature, and because the petitioner had made the unreasonable delay
of four months in commencing investigation. The committee overruled
these objections and admitted the testimony.
The petitioner objected that the clerks appointed by the sheriff to
keep the poll were not sworn previous to the commencement of the
voting, but on the next day examined and subscribed the poll and made
affidavit to its truth and correctness. The committee overruled this
objection, the testimony showing that the clerks conducted the election
under the impression that they would be sworn at the close, in
accordance with the custom of the county.
The petitioner further objected that the names of the voters were not
written under the names of the candidates, but in a single column, with
the votes carried forward and marked under the names of the candidates.
The committee overruled this on the ground of prevailing custom.
771. The case of Porterfleld v. McCoy, continued.
An agreement of parties, as to the admissibility of votes was
overruled by the Elections Committee on the ground that the elective
franchise might not be qualified by such agreement.
The Elections Committee, in a sustained case, ruled that all votes
-----------------------------------------------------------------------
\1\ First session Fourteenth Congress, Contested Elections (Clarke),
p. 267.
Sec. 772
recorded on the poll lists should be presumed good unless impeached by
evidence.
In a sustained case, the Elections Committee admitted as proof of his
title to vote the voter's properly taken affidavit.
The committee also overruled the request of the sitting Member that
he be allowed to avail himself of an agreement entered into with the
petitioner as to the admissibility of certain votes, the committee
being of opinion that an agreement of parties could not diminish or
enlarge the elective franchise.
The committee further decided--
1. That all votes recorded on the poll lists should be presumed good
unless impeached by evidence.
2. That certified copies of the commissioner's books or land lists
should be read in evidence, and deemed satisfactory as to the
qualification or disqualification of voters, unless corrected by other
evidence; and
3. That the affidavit of the voter taken before competent authority
in pursuance of regular and sufficient notice, should be read in
evidence to prove his title to vote.
The committee reported these rules to the House with the case.
On April 19 the House confirmed Mr. McCoy in his seat.
772. The election case of Easton v. Scott, from the Territory of
Missouri, in the Fourteenth Congress.
The House in 1817 held that it was competent to examine the
qualifications of voters, although they had voted by a secret ballot
and might be compelled to disclose their votes.
The House may investigate a contested election of a Delegate as of a
Member.
The Elections Committee declined to favor giving a petitioner prima
facie title to a seat because a partial investigation showed a majority
for him.
In 1816 and 1817 the House considered at length the contested
election case of Easton v. Scott from the Territory of Missouri, on
which the Committee on Elections reported in favor of seating the
petitioner. The charges of irregularities were numerous, and although
the report of the committee was once recommitted, the House did not
arrive at any conclusion as to the merits of the case as between the
contestant and contestee; but adopted, on January 12, 1817,\1\ a
resolution that the election had been illegally conducted, and that the
seat of the Delegate from the Territory was vacated.
During the examination of the case certain principles of procedure
were discussed and determined, some by the committee alone and some by
the committee and House.
The law of the Territory requiring ``that, in all elections to be
held in pursuance of this act, the electors shall vote by ballot'' the
committee held that a secret ballot was intended, and that there
existed no authority to compel a voter to disclose for whom he voted.
Therefore it would be impossible to inquire into the qualifications of
electors with a view to purge the polls. But on January 3, 1817,\2\
when the
-----------------------------------------------------------------------
\1\ Second session Fourteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 272.
\2\ Annals, pp. 414, 418.
Sec. 773
report was considered in the House, Mr. Daniel Webster made the
criticism that qualifications of the voters had not been considered,
and moved that the report be recommitted to the Committee of Elections
with instructions ``to receive evidence that persons voting for either
candidate were not entitled to vote on the election.'' On this motion a
wide debate took place as to whether or not votes given by ballot, and
of course secretly, could be afterwards ascertained, or the voter be
required to declare for whom he voted. Other points were also touched
on in this debate, which resulted, on January 4, in an affirmative
action on the motion to recommit with the instructions, by a vote of 86
yeas to 50 nays.
On January 4,\1\ also, the question was raised on the floor of the
House that Delegates could not be considered Members of the House, and
therefore, that the House could not be the judge of their election and
return. Mr. Samuel R. Betts, of New York, who raised this point, moved,
therefore, that the subject be indefinitely postponed. In opposition to
this it was argued that in 1809 the House had considered such a case,
and the people of the Territories were authorized under the law to have
Delegates, and therefore had a right to be represented correctly. If
the House could not examine in such a case, the returning officer
became absolute judge; and the returning officer might return two
Delegates. What would the House do then? The motion to postpone
indefinitely was decided in the negative by a large majority.
In their first report the committee rejected the votes in the
township of Cote Sans Dessein for a variety of reasons, including the
fact that the result of the voting was sent to the governor in an
irregular manner. The rejection of this township--which, however, was
only one of many places yet to be examined where irregularities were
charged--left a majority of 7 votes for the petitioner. Therefore Mr.
Easton claimed that the rejection of the irregular return of Cote Saris
Dessein would change the figures on which the governor's return had
been made so as to require, under the law, the issuance of a
certificate to himself instead of Mr. Scott. Thus he claimed that the
decision of the committee showed that the prima facie right to the seat
belonged to him rather than to Mr. Scott; and, citing the parliamentary
law of England in support of his contention, asked that he be made the
sitting Member, and that Mr. Scott be put in the place of contestant.
The committee decided that this request should not be granted, and
proceeded with the investigation.
773. The case of Easton v. Scott, continued.
When the law requires a vote by ballot, an election viva voce is not
permissible and is a reason for rejection of the returns.
Where electors are objected to for want of qualifications, their
names should be set forth in the notice of contest.
A requirement of law that the number of votes given shall be ``set
down in writing'' I on the poll book is fulfilled by the use of
numerals.
There being no time to collect the evidence needed to determine the
right to a seat, the House, on a showing unfavorable to sitting
Delegate, declared the seat vacant.
The seat of a Delegate being declared vacant, the Speaker was
directed to inform the governor of a Territory.
-----------------------------------------------------------------------
\1\ Annals, pp. 415-417.
Sec. 774
The committee, in rejecting the votes of Cote Sans Dessein, did so
for a variety of causes, as: The election was held viva voce, when the
law prescribed ballot; neither the judges (two where three were
required) nor clerk were sworn as required by law.
The committee also ruled that a requirement of the law that ``the
number of votes given to each person shall be set down in writing at
the foot of the poll book'' was sufficiently complied with by the
following entry: ``For Rufus Easton, 16--For John Scott, 1072.''
The committee also established the rule, taking for precedent the
case of Joseph B. Varnum in the Fourth Congress, that the names of the
electors objected to for want of sufficient qualifications ought to be
set forth prior to the taking of testimony. The committee said in
reference to this decision:
If the House concur with the committee in this opinion, it follows
that no evidence has been submitted by either party enabling the
committee to investigate the qualifications of the electors. The
committee are further of opinion that evidence can not be procured in
season to enable the committee to investigate the qualifications of the
electors during the present Congress.
Therefore they asked to be discharged from the consideration of the
subject of qualifications.
On January 12, 1817, the House rejected an amendment declaring Mr.
Easton entitled to the seat; and finally agreed to the following:
Resolved, That the election in the Territory of Missouri has been
illegally conducted and the seat of the Delegate from that Territory is
vacant; that the Speaker inform the governor of that Territory of the
decision of this House, that a new election may be ordered.
774. The Vermont election case of Mallary v. Merrill in the Sixteenth
Congress.
The House is not confined to the conclusions of returns made up in
strict conformity to State law, but may examine the votes and correct
the returns.
No fraud being alleged, the House counted returns transmitted in an
unsealed package, although the State law required the package to be
sealed.
The House counted votes rejected by a State canvassing board because
returned by error for persons not candidates for Congress.
The House counted votes duly certified but not delivered to the State
canvassers because of negligence of a messenger.
On January 5, 1820,\1\ the Committee on Elections, who had been
considering the case of Mallary v. Merrill, of Vermont, reported that
in their opinion Orsamus C. Merrill was not entitled to the seat, and
that Rollin C. Mallary was entitled to it.
Under the law of Vermont the returns of the towns were transmitted to
a canvassing committee chosen by the general assembly, and in
accordance with the findings of that committee the governor of the
State, in accordance with the law, executed credentials to Mr. Merrill.
-----------------------------------------------------------------------
\1\ First session Sixteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 328.
Sec. 774
But the Committee on Elections, going behind the governor's
certificate and the result ascertained by the canvassing committee,
found the following facts:
That the canvassing committee had rejected the legally given votes of
the town of Fairhaven because the election officers of that town had
transmitted the certificate of votes to the canvassing committee in an
unsealed packet, while the law required the packet to be sealed. The
committee, holding that the House of Representatives had not been
accustomed to allow votes legally given to be defeated by the mistake
or negligence of a returning officer, were of the opinion that the
votes of Fairhaven should be allowed to the contestant.
That the canvassing committee had rejected the legally given votes of
the town of Plymouth because the certificate of the presiding officer,
while complete and definite, was not in the exact form prescribed by
the statute of the State. The Committee on Elections were of the
opinion that the prescribed form had been substantially adhered to and
that the votes should be counted.
That the canvassing committee had rejected the return of the town of
Woodbury because the votes actually given for Congressmen had, through
the mistake of the presiding officer, been returned for certain
gentlemen who were candidates for State councilors, and in whose favor
not one vote was given for Representatives in Congress. The record made
in the town clerk's office, in accordance with law, showed the correct
result. The Committee on Elections concluded that this error should be
corrected and the legally given votes be recorded.
That the legally given votes of the town of Goshen were certified in
due form, but the messenger provided by law to deliver the votes to the
canvassing committee failed to do so. The Committee on Elections
considered that this failure should not be allowed to keep from the
poll the votes of the town.
These corrections gave a majority to the petitioner, Mr. Mallary.
The arguments of contestant and sitting Member, which were submitted
in writing to the committee and published as part of the report,
practically assumed the correctness of the committee's deductions, but
joined issue as to the right of the House to go behind the
determination of result arrived at by State authority.
The contestant argued that, as the House was the judge of the
election of its own Members, State authority might not create an
intervening obstacle. It would be unreasonable to say that the House
should be bound by laws never intended to operate on its privileges,
and if intended so to operate must be nugatory. It could not be
inferred, because the canvassing committee were required to receive the
certificate of a town clerk or constable as evidence, the Congress was
to receive no other. The precedents of the House showed that the
qualifications of the electors had been frequently examined by the
House. In the Georgia case of 1804 the House had gone behind the State
return.
The sitting Member contended that the settled order of business
prescribed by the election law of a State was binding on the House
regarding the election of its Members unless ``the Congress, by law,
have altered such regulations.'' If State laws were agreeable to the
Constitution and the requisites of the laws were regarded, the
proceedings of the freemen and the decisions of the State tribunes were
in good faith to be recognized and accredited. While the Congress might
modify a State law on this subject, the House alone could hardly assume
to do so. The pro-
Sec. 775
ceedings in a State, done conformably to law, were of more than prima
facie effect. ``I strenuously and boldly urge,'' he said, ``that the
power of the House of Representatives, and its committee, as judges of
the election, returns, and qualification of its Members are limited to
the law of the State and the Constitution; they are to inquire and
decide whether either have been infringed, and whether all proceedings
have been done in good faith. They are not authorized to step behind a
constitutional statute, except to see whether its provisions have been
regarded. The statute is the act of the freemen and is the expression
of their will, and it is as vitally important to them as the deposit of
their ballots. The House of Representatives, without the cooperation of
the other branch of Congress, can not pass behind the law of Vermont,
to alter or contradict it, without the exercise of unconstitutional and
dangerous power.''
The report of the committee was debated in the House on January 11,
especially with reference to the issue joined in the arguments of the
parties, and on January 13, by a vote of 116 to 47, Mr. Mallary was
declared to be entitled to the seat.
775. The Maryland election case of Reed v. Causden, in the
Seventeenth Congress.
The Constitution requires election of Representatives by the people,
and State authorities may not determine a tie by lot.
The decision of elections officers that ballots were fraudulently
folded was reviewed and reversed by the House.
The House reviewed and reversed the decision of elections officers in
admitting a ballot not conforming to the State law.
Opinions of the Elections Committee as to investigating
qualifications of voters who have voted by secret ballot.
The House, overruling its Speaker, held that a negative decision on a
resolution declaring a contestant not elected was not equivalent to
affirmative affirmation.
The Committee on Elections, on March 11, 1822,\1\ reported in the
contested election case of Reed v. Causden. This case involved both a
question of the constitutionality of the act of the governor and
council of Maryland, and a question of fact as to the votes actually
given.
The returns of the election, as made to the governor and council,
showed that the contestant and sitting Member had an equal number of
votes, and that neither had the ``greatest number of votes'' as by the
constitution of the State was required to constitute an election. In
this situation, the governor and council of Maryland, acting under the
State law of 1790, proceeded by lot to decide between the two
candidates, and decided in favor of Jeremiah Causden. The Committee on
Elections expressed the belief that the law of 1790 had been repealed
by a subsequent law; but dismissed this point as unessential in view of
the constitutional question involved. The Constitution of the United
States provided that ``the House of Representatives shall be composed
of Members chosen every second year by the people of the several
States,'' and that ``each House shall be the judge of the elections,
returns, and
-----------------------------------------------------------------------
\1\ First session Seventeenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 353; House Report No. 64.
Sec. 775
qualifications of its own Members.'' If the people of Maryland failed
to make a choice, no other authority of the State could make good this
defect. If the electors had failed to attend the election it would not
be contended that the State executive authority could appoint a
Representative in Congress for the district.
In relation to the question of fact the committee, after examination
of testimony, concluded that two votes given for the contestant in one
of the districts of Kent County, and rejected because folded together
in contravention of law had been improperly rejected by the judges, and
that a vote allowed to him in Cecil County should be deducted, as being
illegal in form. These additions and the deduction left a majority of
one vote for the contestant.
The law of Maryland provided:
If upon opening any of the said ballots there be found any more names
written or printed on any of them than there ought to be, or if any two
or more of such ballots or papers be deceitfully folded together, or if
the purpose for which the vote is given is not plainly designated as
within directed, such ballots shall be rejected and not counted.
The report of the committee indicated a belief that the two ballots
rejected because folded together were not ``deceitfully folded
together,'' evidence being quoted to show that the footing of the poll
lists indicated this.
The illegal vote in Cecil County contained the name of the
memorialist, together with the names of five other persons, without any
other designation than the words for ``Congress.'' The law of Maryland
provided:
Every voter shall deliver to the judge or judges * * * a ballot, on
which shall be written or printed the name or names of the person or
persons voted for, and the purpose for which the vote is given plainly
designated.
Therefore the committee considered that the sitting Member could not,
under the Constitution, retain his seat, and that the contestant was
elected. The committee embodied their views in these resolutions:
Resolved, That Jeremiah Causden is not entitled to a seat in this
House.
Resolved, That Philip Reed is entitled to a seat in this House.
On March 15 and 19 \1\ the report was considered in Committee of the
Whole and the House.
The resolution that Jeremiah Causden was not entitled to the seat was
agreed.
But over the second resolution there was a contest. The Committee of
the Whole amended it by inserting the word ``not'' so as to provide
that Philip Reed was not entitled to the seat. This amendment was
concurred in by the House by a vote of 73 to 71. A motion to reconsider
failed, as did also a motion to amend by inserting the explanatory
words so the resolution would read:
Resolved, That Jeremiah Causden and Philip Reed having an equal
number of votes, Philip Reed is not entitled to a seat in this House.
The question recurring on agreeing to the second resolution as
amended by inserting ``not,'' there appeared yeas 75, nays 75. So the
resolution was determined in the negative. The Speaker (Mr. Barbour)
was one of those voting in the affirmative.
-----------------------------------------------------------------------
\1\ Journal, pp. 367-371.
Sec. 776
The Speaker \1\ decided \2\ that, as the House had negatived a motion
declaring Philip Reed not entitled to a seat, the converse of the
proposition was affirmed, and that Philip Reed was entitled to a seat.
An appeal having been taken, the House overruled this decision.
Thereupon the following resolution was offered and agreed to--yeas
82, nays 72:
Resolved, That Philip Reed is entitled to a seat in this House as one
of the Representatives from Maryland.
Mr. Reed thereupon qualified and took his seat.
The committee also comment on certain charges that illegal votes were
given by certain named persons. The inference is that the votes were
objected to because of alleged disqualifications of the persons casting
them. ``On the propriety of entering into an investigation of this
kind, when elections are by ballot, the committee entertains serious
doubt.'' The committee refers to the case of Easton and Scott, but
doubts whether it should be viewed as establishing a precedent.
776. The New York election case of Adams v. Wilson in the Eighteenth
Congress.
Instance wherein the House seated a contestant shown to be elected by
a plurality of one vote.
Being unable to inspect a ballot the committee and House accepted the
judgment of the election judges that it was intended for a blank.
The House followed a State law in rejecting ballots folded together;
but considered evidence tending to show fraud before doing so.
On December 30, 1823,\3\ the Committee on Elections reported in the
New York contested election case of Adams v. Wilson, in which the face
of the returns showed the following result: Isaac Wilson had 2,093
votes; Parmenio Adams had 2,077 votes.
The committee found from the testimony that in the town of China 22
more votes were returned for the sitting Member than he actually
received.
They also found that in the town of Attica 5 votes were returned for
the contestant more than he actually received.
These deductions being made the poll stood: For Isaac Wilson, 2,071
votes; for Parmenio Adams, 2,072 votes.
The sitting Member claimed further, however, that in the town of
Middleboro the local inspectors had improperly rejected as a blank
ballot a ballot whereon the name of the sitting Member had been
impressed, but had been defaced by one stroke of a pen over the name
without, however, affecting the distinctness and legibility of the
letters. The committee reported that all the inspectors of election
agreed in the opinion that it had been the intention of the elector who
presented it to have it considered a blank. The Committee on Elections
announce the conclusion that they could not with safety judge of the
ballot from the description of it, and that the judgment of the board
of inspectors--whom the law of the State constituted judges--should not
be questioned.
The committee also disregarded the claim of the sitting Member that
certain votes be counted for him in the town of Stafford. The law of
the State provided
-----------------------------------------------------------------------
\1\ Philip P. Barbour, of Virginia, Speaker.
\2\ Journal, p. 369, Annals, p. 1322.
\3\ First session Eighteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 373.
Sec. 777
that ``if any two or more ballots are found folded or rolled up
together, none of the ballots so folded or rolled shall be estimated.''
The votes in question were folded together, and a reference to the poll
lists showed that more ballots were received than there were names on
the list.
The committee commended the honesty of the inspectors in the district
so far as the inquiries extended, and expressed the opinion that their
testimony was competent and ought to be received to correct any
mistakes in the return.
On January 6, 1824, the House, concurred with the Committee on
Elections, in adopting a resolution declaring Mr. Wilson not entitled
to the seat.
To the other resolution, declaring Mr. Adams entitled to the seat, an
amendment was offered declaring the seat vacant because of the doubt as
to who should have been returned. This amendment was in form as
follows:
It is doubtful, from the evidence, who ought to have been returned
the Member to the present Congress from the Twenty-ninth Congressional
district in the State of New York; and believing that no man ought to
exercise the high and honorable station of Representative of the people
by virtue of a vote short of a clear majority of those given at the
polls; and believing also that the people of that district are
competent and ought of right to judge of and correct the return,
therefore--
Resolved, That the seat of Isaac Wilson, who was returned as the
Member from the Twenty-ninth Congressional district of New York, is
vacant.
Resolved, That a writ of election do forthwith issue to supply the
aforesaid vacancy, occasioned by the improper return of Isaac Wilson to
a seat in this House.
This proposition was decided in the negative, as was also an
amendment to insert the word ``not,'' so as to provide a declaration
that Mr. Adams was not entitled to the seat.
The House then, by a vote of 116 yeas to 85 nays, agreed:
Resolved, That Parmenio Adams is entitled to a seat in this House.
Thereupon Mr. Adams took his seat.
777. The election case of Biddle and Richard v. Wing, from Michigan
Territory, in the Nineteenth Congress.
A board of Territorial canvassers having heard evidence on the
merits, the Elections Committee decided that neither party should be
prejudiced thereby.
The Elections Committee declined to consider intimidation at a poll
unless it seemed to have destroyed the fairness of the whole
proceeding.
Where the election had been by ballot, the Elections Committee
declined to investigate qualifications of voters to the extent of
violating the secrecy of the ballot.
Instance wherein, without violating the secrecy of the ballot, the
Elections Committee by computation rectified a poll.
On February 13, 1826,\1\ the Committee on Elections reported in the
contested election case of Biddle and Richard v. Wing the following
resolution:
Resolved, That Austin E. Wing is entitled to a seat in this House as
a Delegate from the Territory of Michigan.
-----------------------------------------------------------------------
\1\ First session Nineteenth Congress, Contested Elections in
Congress from 1789 to 1834, p. 504; Journal, p. 368.
Sec. 777
On March 20 the report was considered in Committee of the Whole, but
not concluded. It does not appear to have been taken up again, and Mr.
Wing continued in his seat. Therefore the reasoning of the committee
did not receive the positive approval of the House, although a negative
approval may be inferred.
The returns of the local inspectors of the Territory showed the
following summary of results in the various polling places:
Votes.
John Biddle 731
Austin E. Wing 724
Gabriel Richard 710
But the Territorial canvassing board, having met under the law to
ascertain the aggregate of votes and determine the person elected,
decided to hear evidence as to alleged corruption at Sault Ste. Marie,
where the returns showed 3 votes cast for Austin E. Wing and 58 votes
for John Biddle.
As a result of that investigation, and the return made by the
canvassers to the governor, the certificate of election was issued to
Mr. Wing, he having the greatest number of votes as required by the law
for an election.
The committee expressed the opinion that the board of canvassers in
holding this investigation exceeded the authority given them by law,
and that neither party should be prejudiced thereby in an investigation
by the committee of the original and intrinsic merits of the case. An
illegal assumption of power by one description of officers could not
justify an illegal assumption by another description. The testimony
before the canvassers was ex parte, but the committee conceive that, as
ex parte testimony was admitted in rebuttal also, no well-founded
objection could be made by contestant.
Mr. Richard rested his claim on the charge that his vote had been
affected by intimidation practiced by sheriffs at Detroit, but the
committee conceive that they can not enter into an examination of such
charges, especially when the return shows that Mr. Richard's friends
were most numerous at Detroit, except the corruption appears sufficient
to destroy all confidence in the purity and fairness of the whole
proceeding. The inspectors being judges of election, the committee feel
that they were required to do no more than examine who had the greatest
number of legal votes actually given.
Mr. Richard's claim being thus dismissed, by the unanimous opinion of
the committee, the committee proceeded to test the case between Messrs.
Biddle and Wing. In this aspect of the case the committee reached a
conclusion, although not with unanimity.
After examining the inspector's returns, and after adding to Mr.
Wing's poll 4 votes which the committee considered wrongfully rejected,
the poll stood:
Votes.
For John Biddle 732
For Austin E. Wing 728
The committee refer to the fact that when an election turns on the
reception of illegal votes given by ballot much difficulty exists, it
not being proper to discover who threw the ballots by an investigation
which would violate the secrecy of the ballot.
Sec. 778
But in this case it was possible to reach a result, because the
question turned on the poll at Sault de Ste. Marie, where the poll
stood:
Votes.
For Austin E. Wing 3
For John Biddle 58
The committee found the proceedings at Sault de Ste. Marie defective
under the law. Thus, four persons, not qualified electors, presided as
inspectors. Of the 61 votes cast 51 must be considered illegal by
reason of nonpayment of required taxes; in addition to which 12 of the
number were discharged soldiers (not citizens), 3 aliens, and 3
nonresidents. Without setting aside the whole election, the committee
deduct from Mr. Biddle's poll the 12 soldiers, 3 aliens, and 3
nonresidents, 18 in all, leaving him 714 votes. They also deduct all of
Mr. Wing's 3 votes on the supposition that they may have been illegal.
This still left Mr. Wing 11 plurality on the poll.
Thus the committee arrived at their conclusion that Mr. Wing was
elected.
778. The Tennessee election case of Arnold v. Lea in the Twenty-
first Congress.
Although the allegations of the petitioner in an election case were
vague and indefinite, the Elections Committee proceeded to examination.
Form of a petition in an election case deemed too general and
indefinite in its charges.
No fraud being shown, irregularities in the receiving and custody of
ballots were not held sufficient to justify the rejection of the
returns.
Failure of election officers to be sworn, no fraud damaging to the
petitioner being shown, was apparently considered not sufficient to
justify rejection of the returns.
Participation of relatives of a contestant as election officers was
not held fatal to the return, although the State constitution might
seem to imply a prohibition of such participation.
Where the electors comply with the statutes the House should not
reject their votes because returning officers have not been equally
careful.
On December 29, 1829,\1\ the Committee on Elections reported in the
contest of Arnold v. Lea, from Tennessee. The contestant had
petitioned, alleging:
That perjury and subornation of perjury were resorted to; that
bribery, direct and indirect, was resorted to; and, in short, to insure
the defeat of your memorialist, the laws of Tennessee, which prescribe
in a special manner the mode of holding elections, were completely
prostituted and trampled under foot by the official authorities who
conducted the election, and their own partial, prejudiced, and
malignant passions substituted in place of the laws of the land.
Although the general and indefinite character of these allegations
were objected to by the sitting Member, the committee decided to
proceed to an examination.
They found no evidence of perjury or subornation of perjury, or
bribery or corruption, so that part of the petition hardly figures in
the case, except in so far as the proceedings had failed to comply with
the law.
-----------------------------------------------------------------------
\1\ First session Twenty-first Congress, Contested Elections in
Congress from 1789 to 1834, p. 601.
Sec. 778
No return of the votes in the district was made to the committee, the
petitioner showing no evidence to impeach particular votes. The sitting
Member's majority appeared to be 217.
The decision of the case turns on the question whether or not the
conduct of the election was fatally at variance with the following
provisions of the constitution and law of Tennessee:
No judge shall sit in the trial of any cause where the parties shall
be connected with him by affinity or consangunity, except by consent of
parties. (Sec. 8 of constitution.)
That the sheriffs or returning officers shall, on the day and at the
place for holding each respective election, be provided with one box
for receiving the ballots for governor and members of the general
assembly; the returning officer, or his deputy, shall receive the
tickets in presence of the inspectors, and put each into the box, which
box shall be locked, or otherwise well secured, until the election
shall be finished. The returning officer shall, at sunset of the first
day, and in the presence of the inspectors, put his seal on the place
to be made for the reception of the tickets, which shall continue until
the election shall be renewed the succeeding day; and it shall be the
duty of the said inspectors to take charge of the box until the poll is
opened the next day, and shall then be taken off in the presence of the
inspectors.
That the inspectors and clerks of every such election, as aforesaid,
shall, in the court-house, before they proceed to business, swear (or
affirm, as the case may be) faithfully to perform their respective
duties at such election, agreeably to the constitution and laws of this
State.
It appeared from the testimony that at Tazewell the inspectors,
clerks, and sheriff were in favor of the election of Mr. Lea, and that
some of them had made bets on the result; that on the evening of the
first day the sealed ballot box was put in custody of the sheriff and
not kept by the inspectors, as required by law, and under direction of
the sheriff was locked up in a storehouse owned, the petitioner
charged, by an enemy of himself. The friends of the petitioner
complained at this conduct, and on the second day another box was used,
the first remaining sealed until the count. Then it was found that the
box contained the exact number of votes it should contain according to
the poll lists. Petitioner objected that this did not prove that some
tickets cast for himself might not have been abstracted and replaced by
an equal number for sitting Member, the situation of the box rendering
such a fraud practicable. But no proof was adduced to show this, and
the committee decided, although it was in evidence that the sheriff had
been anxious to have the custody of the box, that there was no evidence
to prove fraud, especially as the persons concerned in the conduct of
the election were men of high character.
At Knoxville there was testimony, which the committee consider far
from conclusive, that one man had been bribed to vote for sitting
Member and that another who had voted for the same candidate was a
minor.
At one precinct in Granger County it appeared neither the inspectors
nor the clerks were sworn. One of the three inspectors was a friend of
the petitioner, and the votes returned for petitioner outnumbered those
returned for the sitting Member. Certain illegal votes, not over eight
in number, were deducted at this place, a greater number being taken
from the vote of the sitting Member than from the vote of petitioner.
At one precinct of the county of Jefferson, a cousin of the sitting
Member was one of the inspectors, and with the approval of the other
inspectors, this cousin, with the sheriff, took custody of the ballot
box after the first day's voting.
Sec. 779
At a precinct of Blount County one of the three inspectors was a
justice of the peace, and swore himself, the two other inspectors, and
the clerk. After the first day's election the inspectors delivered the
ballot box to the custody of an uncle of the deputy sheriff. A minor,
whose vote was rejected in this county, loaned a horse of the
petitioner and went to another polling place, where he voted. It
appeared to the committee that the petitioner was privy to this
violation of law.
The committee conclude that these irregularities are not fatal. In
the precinct where the inspectors and clerk were not sworn a deduction
of the votes cast would, if made, increase rather than diminish the
majority of the sitting Member, and even if the whole vote taken should
be given to the petitioner the sitting Member would still have a
majority.
The committee therefore recommended unanimously the following:
Resolved, That Pryor Lea is entitled to retain his seat in the
Twenty-first Congress of the United States as the Representative of the
Second Congressional district of the State of Tennessee.
On January 12, 1830, an amendment declaring the seat vacant was
offered and debated.
In the course of the debate Mr. William W. Ellsworth, of Connecticut,
said:
The merits of the case are involved in two questions, and only two,
viz, how the electors of this Congressional district complied with the
requisitions of the statute law of Tennessee; and if they have, what is
the result of their vote? A close adherence to these questions will
strip this matter of much that is collateral and immaterial. As to the
first question (the difficulty being that the ballot box has not been
taken care of by the supervisors of the election), I observe that the
States may prescribe the time, place, and manner of the election, and
beyond that it is the ultimate province of this House to ascertain the
result of the election. We only want to know what the electors have
said by their votes. There may be some difficulty in ascertaining this
fact where the supervisors of the balloting are irregular as to their
duty; but if the electors have done all the State law requires of them,
and all they can do legally to express their wishes, this is enough for
us, if we can but satisfy ourselves of the result. If we can not, by
reason of the conduct of the supervisors, ascertain what was the true
state of the ballot box when the electors had deposited their votes, we
must pronounce the election to be void. * * * We are to inquire after
the voice of the electors, legally expressed; and if the agents who
take and declare the votes do wrong, let them be prosecuted, but not
punish the electors by rejecting their Representative. * * * The case
stated from Missouri fully illustrates my views (Easton v. Scott).
There the statute required the electors to vote by ballot; they voted,
however, vive voce; but they could not so vote. The electors did not do
their duty; they did not comply with the law as to the manner of
election. So, too, the case of Allen v. Van Rensselaer, from New York,
illustrates the distinction. The law of New York requires the ballot
box to be locked; it was only tied with a string. In this case Congress
decided the election to be good; the electors did all their duty, and
Congress were satisfied as to the contents of the ballot box.
This amendment declaring the seat vacant was, according to the rule
then prevailing, set aside by the previous question. The House then
agreed to the resolution declaring the returned Member entitled to the
seat by a vote of yeas 149, nays 20.\1\
779. The Maine election case of Washburn v. Ripley in the Twenty-
first Congress.
Where a second and effective election was had because of apparent
failure to choose at the first the House declined to be estopped from
investigating the first.
The acceptance after election of a State office which was resigned
-----------------------------------------------------------------------
\1\ Journal, pp. 159-161.
Sec. 779
before the meeting of Congress was held not to destroy whatever rights
a contestant might have.
Where ballots for different offices are cast in different boxes the
intention of the voter is to be ascertained alone from the box in which
the ticket is deposited.
Election officers are justified in refusing to count for a candidate
for Congress ballots cast in a box other than the Congressional box.
Election officers should return all votes cast in the Congressional
box, even though for persons not qualified.
On January 18, 1830,\1\ the Committee on Elections reported in the
contested election case of Washburn v. Ripley from Maine. The facts
appeared as follows:
Under the laws of Maine the election was by ballot, a majority being
required to elect, and the ballots for Congressman were deposited in a
box by themselves at each polling place. The result of the poll was as
follows:
Whole number of votes 4,994
given.
Necessary for an election 2,498
Ruel Washburn had........ 2,495
James W. Ripley had...... 2,180
Eleven men known and 24
admitted to be
candidates for the
legislature at the same
election had in the
Congressional boxes a
total of.
Three men known and 6
admitted to be
candidates for county
treasurers had in the
Congressional boxes a
total of.
Enoch Lincoln, candidate 2
for governor, in the
same way had.
Three candidates for 3
State senator had a
total of.
A single ticket having on 2
it the names of two
candidates for State
senate was found in the
Congressional box and
counted as one vote for
each, making.
Scattering vote.......... 282
The governor and council, acting under the law, found from this
return that a majority of the whole number of votes was not given to
any one candidate, and ordered a new election, which was held December
22, 1828, and at which James W. Ripley received a majority and took his
seat in the House.
The sitting Member made the point that, as the governor and council
had again referred the matter to the people, and as the people had
determined the election on the second ballot, it was not competent for
the House to go beyond the second election. The majority of the
Committee of Elections, however, decided that they might examine the
first election, and did so.
The sitting Member further contended that the said Washburn had
waived whatever right he might have had to a seat in the House by
accepting, after the date of the second election, the State office of
councilor, an office incompatible, as the constitution of Maine
disqualified a Member of Congress from being councilor. A majority of
the committee concluded that the rights of Mr. Washburn, if he acquired
any by the election of September, would not in this way be destroyed.
Mr. Washburn had resigned the councilorship before the time of meeting
of the Congress to which he claimed an election.
The case therefore proceeded to examination on its merits.
-----------------------------------------------------------------------
\1\ First session Twenty-first Congress, Contested Elections in
Congress from 1789 to 1834, p. 679; House Report No. 88.
Sec. 780
It was proven that several of the persons for whom votes were found
in the Congressional box were not residents of the Congressional
district, as required by law; that at least one vote intended for
petitioner was put in the State senatorial box and counted as a vote
for State senator and not for Congressman. It was evident and not
seriously contested that the votes for State officers found in the
Congressional box were deposited there by mistake.
One such ballot cast in the town of Canton contained two names, and
was counted as one vote for each name. The committee found that this
should have been counted as only one vote, and therefore deducted one
from the total.
There was also a question whether or not in the town of Bridgton a
single ballot containing three names had not been counted as three
votes, and the committee, while not considering it proven, also
suggested that two votes be deducted in Bridgton. These deductions, one
in Canton and two in Bridgton, reduced the number necessary to a choice
to 2,496, or one more than the votes received by Mr. Washburn.
It appeared that the voter who cast the double ballot in Canton
discovered his mistake soon after and asked leave to rectify the error,
but was refused by the selectmen. The minority of the committee
believed that two votes should be deducted in Canton and three in
Bridgton--a total of five--which would reduce the number needed for a
choice to 2,495, the exact number received by Mr. Washburn.
The sitting Member professed ability to prove that illegal votes were
given for the contestant; but the committee considered the evidence
before them sufficient to settle the case, in accordance with the
following rule, which they enumerated in their report:
The committee are unanimously of opinion that when the votes are
taken by ballot, and separate boxes used, after they are deposited in
the box it is not competent or proper for the voter or selectmen to
alter or change the ballot as delivered into the boxes, and that the
intention of the voter is to be ascertained alone from the box in which
his ticket is deposited, and that the selectmen conducting the
elections at the places above specified acted correctly in making out
their return to the governor and council of all the ballots they found
in the box which was used for the reception of tickets for a Member of
Congress, and in refusing to count the votes they found in other boxes
with the name of Washburn on it and adding them to his list of votes
given for him as a Member of Congress. The adoption of any other rule
would be fraught with danger to the purity of the elective franchise.
The committee are further of opinion that votes given for persons not
residing within the district of Oxford ought to have been added to the
number of votes given for a Member of Congress, as they were done by
the selectmen.
Therefore the committee recommended the adoption of the following
resolution:
Resolved, That James W. Ripley is entitled to a seat in the Twenty-
first Congress of the United States as the Representative of the Oxford
district in the State of Maine.
On February 2, after a long debate, the House concurred in this
report, yeas 111, nays 79, Mr. Ripley being thus confirmed in the
seat.\1\
780. The Virginia election case of Loyall v. Newton in the Twenty-
first Congress.
The House in an election case received testimony taken before an
informal commission, the individuals of which were competent, and due
notice being given.
-----------------------------------------------------------------------
\1\ Journal, pp. 195, 209, 215, 224, 225, 230, 247, 249.
Sec. 780
Instance of the methods of taking testimony in election cases before
the enactment of the law.
Voting being viva voce, the testimony of the voter was admitted to
prove his qualifications.
All votes recorded on the poll lists are good unless impeached by
evidence.
Reference to rules governing counting of votes where freehold
qualifications prevailed.
Instance wherein the Elections Committee waived the strict rules of
law in receiving testimony.
Form of resolution seating a contestant without in terms unseating
the sitting Member.
On February 19, 1830,\1\ the Committee on Elections reported, in the
contested election case of Loyall v. Newton, from Virginia, the
following resolution:
Resolved, That George Loyall is entitled to a seat in the Twenty-
first Congress of the United States as the Representative from the
district in Virginia composed of the counties of Norfolk, Nansemond,
Elizabeth City, Princess Ann, and the borough of Norfolk.
This case divides itself into three general branches:
1. The admissibility of testimony taken before a commission alleged
to have been appointed without authority of law.
2. The legality of the action of the mayor of Norfolk under the law
of Virginia in adjourning the poll after the first day.
3. The legality of certain votes under the law of Virginia, some cast
for the contestant and some for the sitting Member.
In regard to the first branch, there was no law of the United States
or of Virginia providing for taking testimony in contested election
cases of Members of Congress. In contests for members of the Virginia
legislature the law of that State provided for the appointment by local
judges of commissioners to take testimony. Following this analogy, the
petitioner had appointed by the judge of the Norfolk court
commissioners to take testimony. The sitting Member objected to
depositions so taken for the reason that there was no law authorizing
their appointment or providing the pains of perjury for those swearing
falsely before such commissioners. The committee found, however, that
the commissioners, previous to their appointment as such and during the
time in which the depositions were taken, were justices of the peace or
notaries public, authorized under the laws of Virginia to administer
oaths. So their capability in this respect was not dependent on the
appointment as commissioners, and the committee allowed the testimony
taken before them, as it did also testimony taken before justices of
the peace authorized to administer oaths in behalf of the sitting
Member.
As to the second branch of the inquiry, the legality of the action of
the mayor of Norfolk in adjourning the poll depended on the
construction of the language of the Virginia statute, and the committee
decided that the language gave him such authority; also that the
contingency requiring such adjournment existed.
-----------------------------------------------------------------------
\1\ First session Twenty-first Congress, Contested Elections in
Congress, from 1789 to 1834, p. 520.
Sec. 781
The third branch of the case involved an examination of the
qualifications of electors under the law of Virginia, which provided
various qualifications, especially of property. Under the law of
Virginia voting was viva voce, so the committee admitted the testimony
of the voter himself to prove himself a freeholder in cases where the
land books--also admitted in evidence--did not show the possession of
the freehold. The testimony of other persons was admitted to prove the
qualification of the voters in this respect. To the examination of the
votes the committee applied the following rules, used also in the case
of Porterfield and McCoy:
That all votes recorded on the poll lists should be good unless
impeached by evidence.
That all votes not given in the county where the freehold lies be
rejected.
That the votes of freeholders residing out of the district, but
having competent freehold estates within the district, be held legal.
Acting under these rules and principles the committee found and
reported a majority of 30 votes for George Loyall.
The committee further state that had the parties been confined to the
strict rule of the law in requiring of them the best evidence the
nature of the case admitted and by refusing to receive parol evidence
as to the freehold qualifications of the voters, the majority of George
Loyall would have been greatly increased.
On March 8,\1\ after lengthy debate, a motion was made that ``the
said report be recommitted to the Committee of Elections, with
instructions to report to the House the names of the voters which they
find illegal, with a summary of the evidence upon which they found
their decision.''
This motion was removed from before the House by a motion that the
main question be put. This motion for the previous question was agreed
to without division.
Then the question was taken on the resolution reported from the
committee:
Resolved, That George Loyall is entitled to a seat in the Twenty-
first Congress of the United States as a Representative from the
district in Virginia composed of the counties of Norfolk, etc.
And the resolution was agreed to--yeas 97, nays 84.
On March 9 Mr. Loyall took the oath.
It will be observed that no resolution specifically declaring Thomas
Newton, the returned Member, not entitled to the seat was thought
necessary. Mr. Newton had occupied the seat since the meeting of
Congress.
781. The Virginia election case of Draper v. Johnson in the Twenty-
second Congress.
Where payment of a tax is a qualification of the voter the tax may be
paid by another than the voter.
A vote being given viva voce at an election for Congressman, the
voter may not afterwards change it or vote for additional officers.
An election is not vitiated by failure to observe a directory law
that the ballots shall be returned within a given time.
On April 13, 1832,\2\ the Committee on Elections, through Mr. John A.
Collier,
-----------------------------------------------------------------------
\1\ Journal, pp. 386-388.
\2\ First session Twenty-second Congress, Contested Elections in
Congress, from 1789 to 1834, p. 702; House Report No. 444; House
Journal, pp. 586, 807.
Sec. 782
of New York, reported in the case of Draper v. Johnson, from Virginia.
The contestant alleged that the election had not been conducted
according to certain specified laws of Virginia, and that by reasons of
these departures from the law he was deprived of the election to which
he was entitled by receiving the greater number of votes given by
voters legally qualified. The committee in their consideration of the
case adopted certain principles of action which seem to have been
approved by the whole committee.
The test principles laid down by the committee related in large part
to the construction of the peculiar law of Virginia relating to the
freehold qualifications of the voter. Some, however, of these
principles are of less ephemeral interest, as the following:
That where a revenue tax is duly assessed, and the sheriff has paid
the tax himself, and has not returned the party delinquent, as he has
the right to do if he is insolvent, or the sheriff is not able to
collect the tax, that this is to be deemed a payment by the party, so
as to entitle him to a vote.
That where a voter is first polled, and his vote recorded for one
candidate (the voting being viva voce), he is not at liberty afterwards
to change it and have his vote transferred to another candidate; nor,
if he first votes for the State officers only, has a right to come
forward afterwards to vote for a Representative in Congress.
That the neglect to return the votes to the clerk's office within the
time required after the canvass, the provisions being merely directory,
will not vitiate the election, it appearing that the polls were
afterwards returned and filed.
782. The case of Draper v. Johnson, continued.
The neglect of the officer conducting the poll to take the required
oath is ground for rejecting the poll.
An election officer being presumed to do his duty, is presumed to
have taken a required oath, and the burden of proving otherwise in on
the objecting party.
Failure to file a required certificate that an election officer took
the oath is sufficient to throw the burden of proof on the party
claiming the votes received by the officer.
The law requiring two officers to officiate at a poll, votes taken by
one officer acting in the capacity of the two required, were rejected.
An election officer having acted colore officii, without objection
from any claimant, the Elections Committee declined to inquire if he
had been appointed properly.
Early instance wherein the Elections Committee heard arguments of the
parties on the evidence.
The committee also laid down additional test principles, as follows:
That the neglect of the sheriff or other officer conducting the
election, to take the oath required by law, vitiates the poll for the
particular precinct or county, and the whole votes of such precinct or
county are to be rejected.
That the legal presumption is, that the oath required has been taken,
every officer being presumed to have done his duty, and that the onus
is thrown upon the party taking the objection to show the neglect or
omission; but as the law of Virginia requires that the oath shall be
returned and filed in the clerk's office, a certificate from the clerk
that no such vote is filed will be sufficient prima facie (notice of
the objection being previously served upon the opposite party) to throw
the burden of proof on the party claiming the vote.
Sec. 783
That the sheriff, or other officer conducting the election, and
particularly at the court-house, where no other superintendents are
associated with him, must appoint one or more ``writers'' to take the
polls; and that the sheriff can not act solely, and in the double
capacity of superintendent and clerk; and that the votes recorded by
him, without the presence or aid of such clerk or writer, are to be
rejected.
That the superintendent of a separate election, having been appointed
by a court or other tribunal having the general appointing power for
that purpose, which superintendents act as such, colore officii, no
other person appearing or acting as conflicting claimants for the
office, the committee will not inquire whether they were appointed at
the particular term of the court contemplated by the act, or whether
there was a ``vacancy'' within the meaning of the law.
783. The case of Draper v. Johnson, continued.
Votes cast at an election adjourned beyond the times permitted by law
were rejected.
A vote received by election officers is prima facie good, and the
burden of proof should be on the party objecting thereto.
The House does not permit an agreement of parties that votes are
inadmissible to preclude examination.
An investigation showing for sitting Member a majority, the House
declined to vacate the seat because certain irregularities (not frauds)
suggested that further inquiry might change the result.
Instance in 1832 wherein a minority dissent was voiced in the report
of the majority and not in separate ``views.''
An early instance wherein the House overruled the report of the
majority of the Elections Committee.
The committee also decided that where the law of Virginia permitted
the poll to be continued three days, that a continuance during the
fourth day was not justified by the terms of the law and rejected the
votes cast on the said fourth day, although it does not appear from the
report that the votes given on the fourth day were otherwise than
legal.
The committee note also in their report that they not only examined
the documentary testimony produced, but heard the parties, who
personally appeared before the committee.
A correction of the returns in accordance with the principles laid
down by the committee would give to the sitting Member, Mr. Johnston, a
majority of 123 votes.
But the committee found a further complication, set forth as follows:
As to the qualifications of the voters, the parties, in the outset,
assumed a principle by which they have been governed throughout,
different from what would have been adopted by the committee, and which
has occasioned great trouble and delay. It was assumed that if a vote
was objected to upon the ground that it was not by a person duly
qualified, the party claiming the vote must take the burden of proving,
affirmatively, that the voter possessed the required qualifications.
This erroneous principle, as the committee deem it to be (for they
would have taken a vote received by the board of inspectors as prima
facie good), might and would have been reversed and corrected, were it
not that the parties, acting upon this basis, proceeded to stipulate,
in writing, that the votes thus objected to, and not, therefore, proved
to be good, were to be deemed and considered bad, reserving, however,
in the counties of Wythe and Grayson, the right to the party claiming
the vote to prove it to be given by a person duly qualified; and in the
other counties in the district * * * the written stipulation reserved
no right to prove the votes to be good; but the specified votes were
admitted, unconditionally, to be bad. The committee, however, were of
opinion that, although there was no express reservation in the other
coun-
Sec. 784
ties, ``yet, if affirmative and satisfactory proof should be offered,
showing that the votes objected to were, in point of fact, given by
persons duly qualified to vote, that the parties would have no right to
stipulate that such votes should be disregarded; and that the
stipulations would only be received as prima facie evidence of the want
of the necessary qualifications of the voters.''
Therefore the committee gave additional time to take testimony; but
the new testimony did not cover all the votes, and the report says:
It will be perceived that from the erroneous principle assumed by the
parties in the outset, disranchising by stipulation upward of 600
voters in a closely contested, election, many of whom are now proved to
be duly qualified, and a majority of whom may have been, and by reason
of the technical objections by which 185 votes have been rejected,
exclusive of the votes polled on the fourth day in Washington County,
giving the seat to either of the candidates might be doing injustice to
the electors of the district, for it is impossible to determine which
of the candidates did, in fact, receive a majority of the legal votes.
A majority of the committee have therefore come to the conclusion
that it would be doing better justice to the parties, and to the
electors of the district, to give them another opportunity of
expressing their opinions upon the subject by a new election.
A minority of the committee,\1\ while they are free to confess that,
under the peculiar circumstances of this case, they would not only be
reconciled to, but better satisfied with, such a result, if they could
have felt themselves at liberty to unite in it, are nevertheless of
opinion that the sitting Member, having received a majority of the
legal votes, upon the principles assumed, is entitled to the seat, and
are therefore constrained to dissent from the resolution proposed by
the majority.
The resolution submitted by the majority was as follows:
Resolved, That the seat of Charles C. Johnson, the sitting Member
from, etc. * * * be vacated, for irregularities in the election, and
that the Speaker of the House transmit to the executive of Virginia a
copy of this resolution, to the end that a new election may be ordered.
On May 26, 1832, when the resolution was considered in the House, and
by a vote of 85 to 35,\2\ all after the word resolved was stricken out,
and the following was inserted: ``That Charles C. Johnson, the sitting
Member, is entitled to his seat.'' The amended resolution being agreed
to, the majority of the committee were overruled, and the title of
sitting Member was confirmed.
784. The North Carolina election case of Newland v. Graham in the
Twenty-fourth Congress.
The State law preventing voters from testifying as to the ballots
cast by them, the Elections Committee did not admit declarations as
next best evidence.
A question as to the correction of the mistake when ballots for
Congressmen are deposited in the wrong ballot box.
On February 24, 1836,\3\ the Committee on Elections reported in the
case of Newland v. Graham, from North Carolina. In this case the
sitting Member was returned by a majority of seven votes, and the
contest was based on the charge that illegal and unqualified votes had
been given for the sitting Member, and that legal and qualified votes
offered for the contestant had been rejected.
-----------------------------------------------------------------------
\1\ It is to be observed that the minority dissent is voiced in the
report, and not presented separately as ``minority views.''
\2\ The Journal does not show any division. The figures of the vote
are given on p. 714 of Contested Elections (Clarke).
\3\ First session Twenty-fourth Congress, Contested Elections (1
Bartlett), p. 5; Contested Elections (Rowell), p. 105; House Report No.
378.
Sec. 785
In the first place the committee declined to accept as evidence
declarations not made under oath of certain persons, alleged to be
disqualified for voting, who declared after the election that they had
voted for the sitting Member. The election was by ballot, and the State
law provided that voters should not be compelled to give evidence for
whom they voted. Hence the contestant urged that the declarations were
the best evidence obtainable by him. The committee refused leave to
admit the declarations.
The committee then proceeded to consideration of bad or illegal votes
proven by other evidence than the declaration of voters. In this
rectification of the vote the committee reversed the action of the
election judges at Asheville, who struck from the poll three votes
allowed by the judges at Henderson. The law of the State gave the
judges at one place of election no such power to alter the return of
judges at another place. The committee also passed upon certain votes
legally offered at the election and illegally refused.
The result of the examination by the committee reversed the majority,
and showed the election of the contestant.
The committee furthermore found a condition which they did not
attempt to pass on. There were used separate ballot boxes, and in some
cases ballots intended for the Congressional box were put into the
legislative box, and vice versa. The judges, who seem generally to have
received the ballots from the voters and put them in the boxes,
corrected these errors. The committee did not ascertain the number of
such corrections, and left the question to the House, saying:
The committee found, on reference to the case of Washburn and Ripley,
that the House had refused to interfere with a decision of the judges
of election in that case, who declined correcting the mistakes made in
that election by depositing the ballots in the wrong boxes. The judges
of this election in Maine, it seems from this case, did not consider it
to be in their power to correct such a mistake. They may have
considered that they had no means of ascertaining whether it was a
mistake or not. It appears, from that case, that the ballots were put
into the boxes by the voters themselves, and it would seem, from
several of the depositions in this case, that the ballots were usually
handed to one of the judges or inspectors of the election, and by him
deposited in the ballot box, as the law of North Carolina requires. In
this case, then, the mistake having been made by one of the judges, and
not by the voter, who had done' everything in his power toward the fair
exercise of his privilege, the judges have considered it their duty to
correct their own mistakes and give the voter his vote; and as they
considered that they had the means of fairly correcting the mistake,
they did so openly, and without objection of the friends of either
candidate. Under such circumstances the committee leave it to the House
to say whether their proceedings should not be respected.
The minority views called attention to the fact that after the
correction by the judges the number of votes in the Congressional box
exceeded the names on the poll list by five, and held that,
irrespective of precedent, the five votes should be deducted from
contestant.
785. The case of Newland v. Graham, continued.
Discussion as to the sufficiency of a notice of contest which did not
give particular specifications.
Discussion as to the admissibility of testimony taken when one of the
parties considered himself unable to attend.
A question as to whether the duties of sitting Member to the House
excuse him for neglecting to attend on taking of testimony in an
election case.
Sec. 785
Without very strong reasons showing the necessity, the Elections
Committee does not extend the time of taking testimony.
Under the old practice of the House testimony in election cases was
taken according to State law.
The proceedings in taking testimony were conducted in accordance with
the law of North Carolina, but the sitting Member having objected to
the reception of the depositions, the committee decided that they had
been taken conformably to the laws of North Carolina on the subject,
and the usage being well established to allow depositions to be read
which had been taken and sworn to according to the laws of the State,
and it appearing reasonable that depositions thus taken on similar
notices from both parties, and in the presence (with one exception) of
both parties or their agents, decided that they were sufficient and
should be received.
The minority views, presented by Mr. Nathaniel H. Claiborne, of
Virginia, and signed by three other members of the committee (the
report itself was presented by Mr. Linn Boyd, of Kentucky, and signed
by four other members of the committee) went into this subject rather
more fully. It seems that the sitting Member had at the outset objected
to the reception of the depositions for the reason that the notices to
take them, served on him, did not state the subject-matter about which
the witnesses were to be examined, nor the names or residence either of
the witnesses or of the persons whose votes were to be impeached. And
for the further reason that a sufficient time was not allowed him to
attend in person at the several places where depositions were to be
taken.
In reply to this Mr. Boyd, chairman of the committee, said in debate
\1\ that the majority of the committee had decided in favor of the
sufficiency of the notice. It was not so specific as the law of
Virginia required in such cases, but was as specific as had been
required by the practice of the committee. These were points the
decision of which would affect the competency of all the testimony
having an injurious bearing on the interests of the sitting Member. If
decided in his favor it would obviate the necessity of any farther
action on the subject. The minority further say that the committee,
without deciding as to this objection, ``provisionally adopted the
rules of evidence which obtain in courts of justice. Subjected to these
tests, much the greater portion of the depositions were rejected as
illegal, as coming under the denomination of hearsay testimony.'' * *
*As to the testimony taken in one instance, ``the sitting Member was
not present either in person or by counsel, or, in other words, that
the depositions are ex parte. The sitting Member acknowledges that
notice was served on him, but he alleges that a moral obligation,
growing out of the relations in which he stood to his constituents,
called him to Washington * * * and that a friend on whom he relied to
act * * * for him was unavoidably absent. * * * The consequence of the
nonattendance of his agent was that no cross-examination was had.'' The
minority contend that as it was impossible for the sitting Member to be
both in Washington and at the place of taking evidence, and as the
option of attending in person or by attorney was virtually denied him,
there was no just cause to impute laches to the sitting Member, and
therefore the depositions in question should be rejected. In support of
this view they cite the case of William Allen
-----------------------------------------------------------------------
\1\ Globe, p. 231.
Sec. 786
in the Twenty-third Congress. The minority recommend that if the House
do not concur in this view further time should be permitted the sitting
Member to take testimony.
The House debated at length the question whether or not the sitting
Member could reasonably have been expected to be in attendance in
person or by attorney at this place of taking testimony.\1\
The sitting Member then asked for a longer time to collect evidence.
The committee decided that without very strong reasons to show the
necessity of further proof (which the committee did not see in this
case) they considered that the right of contesting a seat in Congress
would be useless and nugatory, if such postponements and protracted
appointments for taking additional evidence after the meeting of
Congress should be allowed when the parties had already had the same
time, and as it appeared a sufficient time to take testimony. The
committee further say that ``they could find no precedent in which an
application of a similar kind, even if made at an earlier period, had
been granted, but several in which, notwithstanding the existence of
more favorable circumstances, such applications had been rejected, both
by committees of election and by the House.''
786. The case of Newland v. Graham, continued.
Evidence taken after the Committee on Elections had reported was not
formally considered by the House in deciding the contest.
The committee having reported a conclusion in an election case, the
House declined to pass judgment on the propositions leading to the
conclusion.
The sitting Member, after this decision of the committee, went to
North Carolina and took additional testimony. The petitioner, as
appears from the debates, declined to appear and cross-examine. The
depositions so taken were presented to the House after the report of
the committee had been made.
The case coming up for debate in the House, a motion was made by the
sitting Member on March 24 \2\ that these depositions which were on the
Speaker's table be taken into consideration by the House in considering
the report. Much of the debate in the case was on this motion. Mr.
Henry A. Wise, of Virginia, contended that the practice of law and
equity courts showed that this testimony should be considered. On the
other hand, it was pointed out that it was unprecedented to consider
testimony taken after the case was made up. The petitioner stated that
he had declined to cross-examine during the taking of this testimony,
believing the procedure to be unwarranted. Mr. Levi Lincoln, of
Massachusetts, arguing in favor of the motion to consider the
testimony, held that an election case was constitutionally a proceeding
before the House, and that the House and not the committee were the
triers.
The motion to consider the evidence on the table was made as an
amendment to the resolutions reported by the committee, and on March 26
the sitting Member withdrew it.\3\ But immediately Mr. Abraham Rencher
offered the same proposition in connection with other propositions
relating to details of evidence. This proposi-
-----------------------------------------------------------------------
\1\ Globe, pp. 231, 240, etc.
\2\ Globe, pp. 258, 259, 262.
\3\ Journal, p. 566.
Sec. 787
tion of Mr. Rencher was, after further consideration, set aside by the
ordering of the previous question on the resolutions of the
committee.\1\
The committee reported two resolutions:
Resolved, That James Graham is not entitled to a seat in this House.
Resolved, That David Newland is entitled to a seat in this House.
The report was the subject of long debate on questions relating to
the appearance of sitting Member by counsel and a proposition to
consider testimony presented to the House after the report was made;
and then, on March 26,\2\ Mr. Abraham Rencher, of North Carolina, moved
to substitute for the resolutions reported from the committee a series
of resolutions expressing the opinion of the House as to the various
questions involved in the case, leaving the final result to be
determined by the result of the decisions on the minor questions.
It was at once objected \3\ that for the House to attempt to pass on
these details would be to experience the perplexities caused by a
similar procedure in the case of Moore v. Letcher.
On March 29 \4\ the previous question was ordered on the resolutions
reported by the committee, Mr. Rencher's proposition being thereby set
aside according to the practice at that time. The previous question was
ordered by a vote of yeas 111, nays 88.
Then the resolution declaring Mr. Graham not entitled to a seat was
agreed to--yeas 114, nays 87.
The resolution declaring David Newland entitled to a seat was
disagreed to--yeas 99, nays 100.
Thereupon the following resolution was agreed to:
Resolved, That the election held in North Carolina in last August,
for a Representative of the Twelfth Congressional district of that
State in the House of Representatives of the United States, be set
aside; and the seat of such Representative is hereby declared vacant;
and that the Speaker of this House inform the governor of North
Carolina of the fact.
In the course of the debate on this case the charge was made that
party considerations were influencing the decision, as it was charged
that they had in the case of Moore and Letcher.\5\
787. The Senate election cases of Smith, Winthrop, Phelps, and Cass.
The question as to when the term of service of a Senator appointed by
a State executive to fill a vacancy ceases.
Samuel Smith was Senator from Maryland from March 4, 1803, and on the
expiration of his first term, viz, March 3, 1809, the legislature of
Maryland not having elected his successor, and not then being in
session, he was appointed by the governor on March 4 to fill the
vacancy until the next meeting of the legislature, which would take
place on the 5th of June next. Thereupon Mr. Smith addressed a letter
to the Senate, setting forth these facts, and submitting to its
determination the question whether the appointment would or would not
cease on the first day of the meeting of the legislature. It was
determined that he was entitled to hold his
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\1\ Journal, p. 595.
\2\ Journal, p. 566.
\3\ Globe, p. 263.
\4\ Journal, pp. 595-598.
\5\ Globe, p. 262.
Sec. 788
seat in the Senate during the session of the legislature, unless the
legislature should fill such vacancy by the appointment of a Senator,
and the Senate be officially informed thereof. Under these credentials
Air. Smith held his seat during the special session of the Senate March
4-7, 1809, and during the first session of the Eleventh Congress (May
22 to June 28, 1809). On the 16th of November following he was elected
by the legislature, and on December 4, in the next session of Congress,
he produced his credentials of election and the oath was
administered.\1\
788. Robert C. Winthrop was appointed Senator from Massachusetts July
27, 1850, to fill a vacancy happening in the Senate by the resignation
of Daniel Webster. February 1, 1851, Robert Rantoul was elected by the
legislature to fill the unexpired term. February 4, Mr. Rantoul not
having appeared to take the seat, Mr. Winthrop offered a resolution,
which was agreed to, ``that the Committee on the Judiciary inquire and
report to the Senate, as early as practicable, at what period the term
of service of a Senator appointed by the executive of a State during
the recess of the legislature thereof rightfully expires.'' The
committee reported that a person so appointed had a right to the seat
until the legislature, at its next meeting, should elect a person to a
the unexpired term, and the person elected should accept, and his
acceptance appear to the Senate; that presentation of credentials
implied acceptance; that these views were sustained by precedents. The
report was debated, but no action taken, the whole subject being laid
on the table. Mr. Winthrop vacated the seat February 7, 1851, when Mr.
Rantoul's credentials were presented.\2\
789. On May 29, 1848,\3\ Mr. Lewis Cass resigned his seat as a
Senator from Michigan and on June 20, 1848, Mr. Thomas Fitzgerald,
appointed by the governor of Michigan to fill the vacancy, appeared
with his credentials and took his seat. The Michigan Manual \4\ shows
that Lewis Cass was elected Senator from Michigan on January 20, 1849;
but Mr. Fitzgerald continued to serve until March 3, 1849, the last day
of the Congress, as is shown by the fact that on that date he presented
the credentials of Mr. Cass, who thereupon took the oath and his
seat.\5\
790. Samuel S. Phelps,\6\ Senator from Vermont, was appointed by the
governor of Vermont January 17, 1853, during the recess of the
legislature, to fill a vacancy in the Senate happening by the death of
William Upham. His credentials were presented and he took his seat
January 19. The legislature met in October and adjourned in December
without electing a Senator to fill the unexpired term. Aft. Phelps had
held the seat during the remainder of the second session of the Thirty-
second Congress, ending March 3, and during the special session of the
Senate March 4 to April 11. December 29 he again attended. January 4,
1854, the Senate resolved that the Committee on the Judiciary inquire
whether he was entitled to retain his seat. January 16 the committee
reported the resolution, ``that the Hon. Samuel S. Phelps is entitled
to his seat in the Senate of the United States.'' It was
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\1\ First session Eleventh Congress, Annals, pp. 15-25.
\2\ Second session Thirty-first Congress, Globe, pp. 425, 437, 459,
477, 478; Senate Report No. 269.
\3\ First session Thirtieth Congress, Globe, p. 792.
\4\ 1905, p. 218.
\5\ Second session Thirtieth Congress, Globe, p. 681.
\6\ First session Thirty-third Congress, Senate Report No. 34.
Sec. 790
accompanied by a minority report adverse to the right of Mr. Phelps to
a seat. March 16 the resolution reported by the committee was rejected
by a vote of 12 yeas to 26 nays, and it was ``Resolved, That the Hon.
Samuel S. Phelps is not entitled to retain his seat in the Senate of
the United States.'' \1\
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\1\ The power of the executives of States to fill vacancies in the
offices of United States Senators, and the status and terms of service
of Senators thus appointed, has been passed on many times by the
Senate. See cues of Kensey Johns, Uriah Tracy, Samuel Smith, Ambrose H.
Sevier, Robert C. Winthrop, Samuel S. Phelps, Charles H. Bell, Henry W.
Blair, Horace Chilton, Lee Mantle, Ansel C. Beckwith, John B. Allen,
Henry W. Corbett, Andrew T. Wood, John A. Henderson, Matthew S. Quay,
and Martin Maginnis. (Senate Election Cases, special session Fifty-
eighth Congress, Senate Document No. 11, pp. 1, 3, 4, 7, 10, 16, 26,
36, 48, 52, 85, 89, 103, 105, 107.)