On motion of Mr. Munsell, The resolution proposing an investigation into the proceedings of the Board of Canal Commissioners, was taken up for consideration; and On motion of Mr. Hardin, The resolutions were amended by striking out all of the first resolution that relates to the appointment of a joint select committee of the two branches of the Legislature, to the word "Legislature" in the 4th line, and insert the following: "That the committee on Canals and Canal Lands be instructed to report a bill to this House, authorizing the Governor to appoint a board of three auditors, who shall proceed to Lockport, &c." And add to the end of first resolution the following: "and make report of the result of their investigation to the Governor, which shall be published in the paper of the public printer." Also by adding the following additional resolution: "Resolved, That said committee also insert in said bill, that the said board of Auditors, audit, settle and adjust the accounts of said Canal Commissioners and Treasurer of said Board, as well of those heretofore in office as those now in office, and that in case any one of said officers is indebted to the State, that they require suit to be brought against such person on their official bonds; which resolution as amended was then agreed to; when, The House adjourned, FRIDAY, DECEMBER 4, 1840. The House met pursuant to adjournment. Mr. Murphy of Cook, from the committee on Banks and other Corporations, to which was referred the communication from the State Bank of Illinois, reported the same back to the House, and recommended the printing of 150 copies thereof; which report was concurred in. Mr. Peck, from the select committee appointed to investigate the claims of N. H. Purple to a seat in this House as a Representative from the county of Peoria, reported as follows, viz: The Select Committee, to which was referred the Petition of Norman H. Purple, contesting the right of William J. Phelps to sit and vote as a member of the House of Representatives, report: That an examination under the law of this State which points out the manner of contesting elections, having been gone into by the respective parties, they agreed that their rights to a seat in the House should be decided by the depositions taken under the law in the county of Peoria, and such other written documents as are reported herewith. A majority of the committee did not feel it their duty, in weighing the evidence before them, to confine themselves alone to those rigid rules which control the opinions of our judicial tribunals in the decision of pecuniary civil rights. Legal technicalities often carry with them important results, but the majority of your coinmittee did not feel bound to make justice bend to nice distinctions, nor to sacrifice the rights of a majority because some unwielding formality has not been strictly complied with. The evidence produced is in some respects loose, if the acumen of lawyers is alone to be consulted; but in their deliberations the committee were governed by the mandates of justice, and applied those larger and more sensible influences to the decision of a question which involves rights more important than any which the respective claimants can present, if their individual interests are alone to be consulted. It is not to be supposed that in a contested election, where the evidence is obtained upon the very theatre of dispute, that the clearest and most indisputable of all evidence can be furnished. Individuals cannot be compelled to disclose any facts which will render them amenable to the laws enacted to prevent improper voting. Party influences are made active, and self-preservation stimulates the guilty by every artifice to avoid detection. Hence it becomes exceedingly difficult to square decisions in a case like the present by the unbending rules of evidence, furnished by a Starkie, a Phillips, or a Peake. Mr. Purple notified Mr. Phelps, on the 31st of August last, of his intention to contest the right of the latter to a seat in this House; which notice was carried out by an examination before three justices of the peace in Peoria county, pursuant to law in that behalf. The result of that examination is reported herewith. It appears that the sitting member, at the election in August, had a majority of seven votes over the claimant. In the scrutiny adopted by the committee, it appears that there were twenty-three illegal votes cast. Of these fifteen were for Mr. Phelps, and eight for Mr. Purple. There were two other votes, about the rejection of which the committee were equally divided. Two individuals, Enos Rowland and Lewis Lecroy, came to the polls in Peoria precinct, took the oath prescribed by the law, and wished to have their votes recorded for Mr. Purple. Two of the judges of election, making a majority of the board, rejected these two voters of their mere motion, without any evidence impugning the right of the individuals claiming the franchise. A majority of the committee are of opinion that these votes should be counted for Mr. Purple. Without enlarging upon the reasons for this opinion, your committee would only suggest that it would be unwise and dangerous, to permit judges of election from mere caprice, or any worse reason to reject votes, as by such means it would be in their power to control all elections of the people. It was agreed between Messrs. Purple and Phelps, that each should vote for the other. Mr. Purple carried his part of the agreement into ef fect; but Mr. Phelps, from illness, was unable to attend the polls, and consequently could not vote for Mr. Purple. It is proposed now, that the vote of Mr. Purple should not be counted for Mr. Phelps, and although the latter gentleman assents to this proposition, your committee do not feel authorized to reject the vote of Mr. Purple, his legal right to cast the vote not being questioned. Majority of votes on the poll books for Mr. Phelps, seven. Number of illegal votes cast for Mr. Phelps, Illegal votes cast for Mr. Purple, Two votes for Purple improperly rejected by the judges, Majority of Mr. Purple over Mr. Phelps, two, not including the two votes about which the committee are equally divided. A majority of your committee recommend, that William J. Phelps be not considered as having a right to sit and vote in this House, and that Norman H. Purple be declared to be the representative elect from the county of Peoria, and that he take his seat in the House in lieu and stead of the said William J. Phelps, and recommend the adoption of the following resolution: Resolved, That Norman H. Purple, having received a majority of all the legal votes in the county of Peoria, at the late August election, for Representative, be declared the sitting member in this House from said county. Which was read. Mr. Henderson demanded a call of the House, which having proceeded for some time, was, On motion of Mr. Lincoln, Dispensed with. Mr. Hardin, from the select committee appointed to investigate the claims of N. H. Purple to a seat in the House as a Representative from the county of Peoria, made a minority report, as follows, viz: The undersigned, being a minority of the Select Committee, to which was referred the petition of N. H. Purple contesting the right of W. J. Phelps to hold a seat in this house, as a Representative from the county of Peoria, beg leave to report: That they have given the subject a most careful and thorough consid eration, and regret that, in deciding upon the qualifications of persons to vote, as well as in the conclusions adopted by the majority of the committee, they are constrained wholly to differ with them. The only testimony which has been submitted to the committee is a bundle of depositions, which we feel constrained to say, are of the most imperfect, loose and unsatisfactory description; and far the largest portion of the depositions are such as would be whol.y rejected as evidence in any court of Justice. According to the understanding of the testimony, entertained by the minority, there are but about eleven votes proved to be illegal, by primary and positive evidence, (by which we mean, the best evidence which could be produced to prove the fact desired.) Of these eleven votes, five voted for Phelps, and six for Purple. Thus, if we are governed by the same rules of law which prevail in courts of justice, the right of Phelps to retain his seat cannot, in our opinion for a moment, be questiened. The remaining testimony, which is by far the largest portion, consists of hearsay or secondary evidence, being statements which witnesses say they heard made since, and in many instances, weeks, months and years previous to the August election, by the voters themselves, or their fa thers, brothers, and brothers-in-law; and also, recollections of family records. And this hearsay testimony is presented in a still more questionable position from the facts which appear in many of the depositions that the voters themselves, or their fathers, brothers, brothers-in-law and the family records were in Peoria county, and of course could have been brought before the persons taking the depositions, and thus enabled the parties to have presented the best evidence to prove the facts desired. Evidence of this description is not received in courts where the testimony of the person who made the statement can be had, and we think it could not be received in this case, for the same reasons which have induced courts to reject it. If this character of testimony is admitted, it will lead to the greatest uncertainty in the investigation, and will open a door for frauds of the most startling description. If such testimony is to be admitted, the seat of no member in this body will be secure, although in truth he may be fairly and honestly elected. And in contested elections, the effort will be, not to prove the largest number of illegal votes by positive testimony, but to hunt up the greatest number of rumors, as it is generally easier to prove five men to be illegal voters by hearsay, than one man by positive proof. These objections exist to the testimony taken on both sides, and in our opinion should induce the House to reject every deposition when it appears that better evidence to prove the desired fact, could be obtained than that which is given. But the minority of the committee are of the opinion, that if the whole testimony is taken together, and the same rule of construction equally applied, that it will clearly show that the sitting member, Mr. Phelps, is entitled to his seat. We will briefly advert to the facts which have led us to this conclusion: Taking the whole testimony together, the committee came to the conclusion that the votes of the following named persons were good, some of whom voted on either side, and we presume their right to vote will not be again disputed, as there was no diversity of opinion, as it respects them in the committee, to wit: John Hogg, Jr., Isaac Underhill, William C. Terry, Isaac Clayton, Michael R. Hughes, Charles B. Benson, David G. Lisk, The following named persons who voted for Phelps were decided to be illegal voters by at least seven of the committee, whose right to vote, if hearsay and secondary evidence is admitted, will most probably not be contended for, to wit: Theodore Adams, Quincy A. Jordan, R. Burlingame, Benjamin H. Bauvard, George Hillman, Myron M. Lisk, Hiram Robinson, Dexter Hood, Allen Cromlet, Matthew Ellis. The following named persons, who voted for Mr. Purple were decided by at least seven of the committee, to be illegal voters, taking all the testimony together, and it is presumed it will not be alleged that they are legal voters if all the testimony is admitted, to wit: George Almarode, Peter Decker, John Davis, Samuel Carroll, William Young, Thomas Richardson, James Murden, William Whiting, John Hillhouse,or Hillis, The right of the following named persons to vote, (who voted for Phelps) could not be agreed on in the committee, to wit: Noble M. Farrington, William Adkins, George Winkler, Christopher Winkler, Horace Adams, Harris Whitaker, Robert Smith, John Martin, The right of the following named persons to vote, (who voted for Purple) could not be agreed on in the committee, to wit: James Temple, William H. Fessenden, George W. Patton, The committee could not agree whether Enos Rowland, and Lewis Lecroy, whose votes were rejected by the judges of the election, were legal voters, and who would have voted for Purple, if they had been permitted to vote. It is in reference to these two last lists of voters' names, that the attention of the House should be particularly directed, as the contest to the seat inust be decided with reference to these voters. It appears from the poll books, which were admitted to be evidence by consent, that at the August election, W. J. Phelps received 724 votes, and N. H. Purple received 717 votes, leaving Phelps a majority of seven. The number of illegal votes admitted to be proved by taking hearsay and positive proof, is ten for Phelps and nine for Purple, which still leaves Phelps a majority of six. In the columns of disputed votes, the House must find illegal votes enough for Phelps, and legal votes for Purple to change this result. A few suggestions will be offered with reference to the votes of some of the persons who are declared to be illegal voters by a majority of the committee: Two persons voted for Phelps, whose votes were thus rejected, are George and Christopher Winkler. It is proved they have lived in the State more than three years, and there is no dispute as to their age. One of them resided, as is proved, for five months previous to the August election in Peoria county, and the other for two or three months previous to that election, and they were residing there at the election, and at the time of taking the depositions; yet, because it was proved that they had formerly resided with their father in Tazewell county, and each owned a lot of land there, the majority of the committee come to the sage conclusion that they had no right to vote in Peoria county. It is a principle of law, as well as of justice and common sense, that every man's vote on the poll book is to be considered to be good until the contrary appears from evidence. Apply this principle to the case of Noble M. Farrington, who was likewise decided to be an illegal voter for Phelps by the majority of the committee. Waller Stuart, the only witness who speaks of Farrington, says that he came on board the steamboat Tennessee, at St. Louis, in March last, and came up the Illinois river to Peoria; and Farrington told witness that it was the first trip he had ever made up said river. Witness does not know where Farrington resided before he came on board at St. Louis; and it is not shown but that he had resided in Peoria several years, and had come to the State by land. This being the whole testimony, the majority of the committee decided that he was an illegal voter. The grounds upon which they arrived at that conclusion must have been, that to entitle a man to vote he |