1796.

1st SESSION.

tion to recommit.

deprived of their suffrages, without manifest marks of cor4th CONGRESS, ruption. I heard, with pain, a gentleman from the back parts of Pennsylvania strive to explain away what I think Debate on mo- the natural rights of the citizens. He says that if those people did not vote, it was their own fault. Could they not have gone into the neighboring town and voted? What a flimsy napkin is here thrown over the people's rights! They are seen through it. What a trifling consideration to justify the violation of justice! Does not the law of Vermont contemplate that the election should be carried into the bosom of each town? Hath not long usage entitled the people to expect an interference of this kind in their favor? Will they depart from their law and usage? Good conscience calls for the investigation of the House as to this fact. In short, if we establish the principle contended for, I fear it will stare us in the face on some future occasion, when we shall wish to have it obliterated.

Motion to re

On the motion for recommiting, there appeared 47 in commit nega-favor of it, and 49 against it.

tived.

Report recommitted.

Second report

Mr. GILBERT then moved to postpone the consideration of the report to the 29th day of March. This was agreed to, 49 to 44.

FEBRUARY 17, 1796.

Mr. WILLIAM LYMAN moved for a reconsideration of the order of the House for postponing the case to the 29th March. This was agreed to without any opposition.

The question was then to rescind the above order. This was also carried in the affirmative.

Mr. SMITH then moved that the House should agree to the report of the Committee of Elections. This was suspended by a motion to recommit the report; which was agreed to.

The report (which had been twice under consideration, but no conclusion come to upon it) was in the following words, viz.

"That it appears, by the deposition of the town clerk of of the commit- Hancock, that there were 17 persons in said town who were entitled to vote, 12 of whom are stated to have been admitted in that town, and 5 in other towns.

tee.

"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.

"That it does not appear that the warrants were withheld from the said towns by the sheriff, from any fraudulent intention, but that the failure was accidental as to the town of Kingston, and that the warrant was not sent to the town of Hancock, because the sheriff believed they had not voted at the first meeting."

And when the report was first under consideration, it was amended by adding a resolution, to the following effect:

1796.

"That as there appears to have been a sufficient number of qualified voters in the towns of Hancock and Kingston 4th CONGRESS, to have changed the state of the election, Resolved, That Israel Smith was not duly elected, and is not entitled to his seat in this House."

of the commit

tee.

This report occasioned considerable debate. It was de- Debate on the fended by Messrs. HARPER, SITGREAVES, W. SMITH, and second report N. SMITH, principally on there being votes sufficient in the above two towns to have changed the election, if they had voted for the petitioner, and on the necessity of establishing it as a principle in elections that every town should have notice of an election.

It was opposed by Messrs. VENABLE, (the chairman of the Committee of Elections,) GALLATIN, NICHOLAS, GILES, W. LYMAN, and FINDLEY. They admitted the possibility, but denied the probability, that 36 votes in these two towns would have changed the fate of the election. They said there was every reason to believe the contrary: that Mr. Smith had a majority of twenty-one votes: that fifteen of the voters in Hancock and Kingston had voted for Mr. Smith at the former election: that Mr. Lyon, with all his endeavors to procure them, had only brought forward a pe- · tition from twenty of these persons, who declared they would have voted for him; which, if they had done, and none had voted for Mr. Smith, he still would have had a majority of one vote; but there were affidavits from seven of these voters, declaring they would have voted for the sitting member: seven others refused to take any part in the dispute, and two of the voters were absent at the time of the election, and could not have voted either way.

The vote was at length taken on the motion of Mr. WILLIAM SMITH, by yeas and nays, as follows:

YEAS.-Messrs. Bourne, Coit, Dent, Earl, A. Foster, D. Foster, Gilbert, Glum, Goodrich, Griswold, Harper, Hindman, Kitchell, Locke, S. Lyman, Read, Sitgreaves, Jeremiah Smith, N. Smith, Isaac Smith, W. Smith, Swift, Thatcher, Thompson, Thomas, Tracey, Van Allen, Wadsworth-28.

NAYS.-Messrs. Bailey, Baldwin, Baird, Benton, Blount, Bryan, Burgess, Christie, Claiborne, Coles, Findley, Gallatin, Giles, Gillespie, Gilman, Greenup, Hampton, Hancock, Hathorn, Havens, Heath, Hiester, Holland, Jackson, W. Lyman, Maclay, Macon, Madison, Milledge, Moore, Muhlenberg, New, Preston, Richards, Rutherford, R. Sprigg, jr., T. Sprigg, Swanwick, Tatem, Van Courtland, Venable -41.

The question being thus decided in favor of the sitting member, Mr. W. LYMAN proposed the following resolution; which was adopted.

"Resolved, That ISRAEL SMITH is entitled to a seat in this Sitting member House as one of the Representatives from the State of declared enti Vermont."

tled to his seat.

1796. 4th CONGRESS,

1st SESSION.

JohnSwanwick

CASE XIII.

JOHN SWANWICK, of Pennsylvania.

The petition of sundry citizens and electors, of Philadelof Pa. contest- phia, was presented, complaining of the undue election of ed by sundry John Swanwick.

citizens.

17 Dec. 1795.

Allegations abandoned.

The journal and recorded documents do not exhibit the nature of the allegations, but the result of the case rendered a knowledge of them very immaterial.

The report of the committee, which was concurred in by the House, was in the following words: "That the petitioners have entirely failed to support the allegations contained in their petition, and that they have, in a formal manner, relinquished the same. Your committee are therefore of opinion that John Swanwick is entitled to a seat in this House."

CASE XIV.

JOSEPH B. VARNUM, of Massachusetts.

[The allegation that votes were given by proxy, that is, from persons not present at the polls, but from those who pretended to act for them, is sufficiently certain, without setting forth the names of such persons.

The allegation that votes were given by persons not qualified to vote, is defective, unless it show the names of such persons.]

The memorial of sundry citizens of Massachusetts was presented, contesting the right of Joseph B. Varnum to his seat.

MARCH 15, 1796.

The committee reported that they had proceeded to examine the petitions, and the documents which accompany them. They have also received from Aaron Brown, a petitioner, a paper purporting to be a specification of the facts relied on to support the charge, and praying for a general power to take evidence in support thereof, which is as follows: A statement of facts to be proved by the petitioners. "1st. That one hundred and eighty-five votes were rethe sitting mem- turned by the selectmen of Dracut, and counted by the Governor and Council.

Charges against

ber.

"2d. That, of those, sixty were illegal and bad, fifty-five 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 five

:

votes were received and certified by the said presiding 1796. officers, which were given by persons by law not qualified 4th CONGRESS, to vote at said meeting.

"3d. 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."

AARON BROWN,

for the petitioners.

1st SESSION.

intended to be

To this statement was appended the following, also signed by him as an explanation of the above specification: "The petitioners expect to prove that the above sixty Notice of proof illegal votes were received by the selectmen, by showing offered. that the whole number of legal voters was not more than two hundred and twenty-five; of which number one hundred did not attend the meeting on the twenty-third day of March last; and a part of those that did attend and vote, were not legally qualified to vote." Also the objections of Objections to the sitting member, and a requisition that the petitioners be the petition, held to a specification of the names of the persons objected by the sitting to, and the objection to each, a notification thereof to the sitting member before he should be compelled to take evidence concerning the matters alleged, or make any answer thereto.

member.

from the House.

"Upon all which, as well from the difficulty of the case, as The committee from a desire to have uniformity in proceedings of this kind, ask instructions your committee have been induced to pray the instructions of this House as to the kind of specification that shall be demanded of the petitioners, and the manner in which the evidence shall be taken."

This report was committed to a Committee of the Whole House, and, after several days' discussion, the following resolutions were reported, and agreed to by the House:

"Resolved, That the allegation of Aaron Brown, agent for Instructions by the petitioners, as to fifty-five votes given by proxy, is suffi- the House. ciently certain.

"Resolved, That the allegation of the 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 the testimony."

Mr. SEDGWICK offered the following resolution, to wit: "Resolved, That the Committee of Elections be instructed to prescribe an efficient mode whereby evidence may be taken relative to the facts set forth in the said petitions and specifications of Aaron Brown, agent for said petitioners."

This resolution was amply debated. The principal arguments used in support of it, were, that the facts stated in

1796. the petition and documents were sufficiently explicit; that 4th CONGRESS, the facts, if proved, were material: for, as Mr. Varnum had 1st SESSION. only a majority of eleven votes, if twenty-three out of the Debate on the sixty votes charged to be illegal were proved really to be mode of proof to be adopted. So, they would invalidate the election. The possibility of proving the facts, was shown in a variety of ways, and the mode of conducting elections in the State of Massachusetts explained; that when facts were alleged sufficient to set aside an election, if proved, it was the duty of the House to prescribe the modes of taking evidence to substantiate them. Several instances were mentioned, in which the modes of taking evidence had been prescribed; that the names of illegal voters could not be obtained, no list being kept of persons entitled to vote for Representatives; that the town clerk of Dracut had refused to give a certified copy of the records, and none of the inhabitants of that town, from their attachment to Mr. Varnum, would give any information respecting the election.. The necessity of guarding the purity of elections was insisted on, and that petitions against undue returns should by no means be discouraged. It had been said that because petitions had a tendency to make members uneasy in their seats, they should not be encouraged; but to this it was answered that it was an ill-founded doctrine, and Mr. Varnum was advised to come forward and challenge investigation, rather than appear to wish to stifle it.

The arguments against the resolution were, that the facts stated were not sufficiently explicit to warrant any proceedings of the House on them; that if the votes stated to be bad were really so, their names might be obtained; that it was improper to harass electors, or give uneasiness to a sitting member, upon slight grounds, as, if that were the case, it would be in the power of any man, from pique, or any other cause, to put a member to great trouble and expense, and might prevent a man of moderate fortune from holding a seat in that House, because he was not able to bear the expense of meeting vexatious attempts to displace him. The manner of bringing forward the case was objected to. It was said that A. Brown, the agent, had signed the petition after he came to this city; that there was no evidence of his being employed as an agent; nobody was seen in the business but that single man, (the people of Dracut being so satisfied as not to give him any information on the business,) and he having left the city, the case ought to have been rejected; that petitioners ought to have all due attention paid to them, but that the sitting member ought not to be forgotten; that the House should be cautious of going into matters of this sort, as it was making themselves a party; that they ought not to volunteer in search of evidence; that to grant the power required, would be to grant an inquisitorial power to swear every man in Dracut,