wallader D. Colden, and ought to have been so returned and allowed by the officers of the State of New York, at the general canvass of the State; and that, being allowed these votes, it will make the whole number of votes given for Cad-wallader D. Colden amount to 3,954, being 585 more than were given for Peter Sharpe.

1821. 17thCONGRESS,

1st SESSION.

offi-

"The committee will forbear from exhibiting arguments to Votes fairly gi prove that votes thus fairly and honestly given ought not to ven ought not to be set aside, be lost or set aside for any omission or mistake of any of or lost, through the returning officers. It is conceived to be entirely unne- mistakes of recessary to prove that what has been the uniform decision of turning the House of Representatives ever since the formation of cers.. the Government, in such cases, has been correct. It is to be presumed that Mr. Sharpe has obtained from the proper authority of the State of New York a certificate of his election. There is testimony that Mr. Colden has notified him that he intended to contest his right to a seat, but Mr. Sharpe has produced no testimony whatever, nor signified any intention to resist the claim of Mr. Colden. The committee submit the following resolutions:

"Resolved, That Peter Sharpe is not entitled to a seat in this House.

"Resolved, That Cadwallader D. Colden is entitled to a seat in this House."

These resolutions were committed to the Committee of the Whole House, and on the 12th of December Mr. NELSON, from said committee, reported them to the House without amendment; and on the question, "Will the House concur with the Committee of the Whole in said resolutions?" it passed in the affirmative; whereupon, the said Cadwallader D. Colden appeared, and took his seat.

Petitioner declared entitled to his seat.

1821. 17thCONGRESS, 1st SESSION.

Report of the

Elections.

CASE XLVIII.

MATTHEW LYON US. JAMES W. BATES, of Arkansas
Territory.

[The petitioner's allegations (of facts sufficient, if proved, to vitiate the election) being unsustained by evidence, were considered insufficient, and he had leave to withdraw his memorial.]

DECEMBER 10, 1821.

On the 19th of December, 1821, the Committee of Elections, to which the petitioner's memorial in this case had been referred, reported:

"That, by the official proclamation of the acting Governor Committee of of the said Territory, it appears that, at the election for a Delegate for the said Territory, James Woodson Bates and Matthew Lyon were candidates, and that, from the returns made by the sheriffs of the several counties, it appears, upon adding the votes given for each candidate, that James Woodson Bates had 1,081 votes, and Matthew Lyon had 1,020 votes, being a majority in favor of said Bates of 61 votes, who was therefore declared to be duly elected. The petitioner states that this proclamation was founded on improper and illegal returns from several counties, which he has named in his memorial; and that, in many other counties, a large number of illegal votes were given for Mr. Bates, and that in justice the petitioner is entitled to the seat as Delegate from the Territory of Arkansas. He further states that he has made application to the acting Governor and Secretary of the Territory for permission to inspect the return of the election as made by the sheriff of each county, or to be furnished with a copy of such returns, but that both these requests have been positively refused; and that, inasmuch as there is no law existing in the said Territory, whereby he can compel the attendance of witnesses to testify in the case, he is induced to waive what he considers his just right, and prays that a new election may take place.

Petitioner's

"The petitioner having produced no testimony whatever memorial being in support of the allegations set forth in his memorial, the unsupported committee submit the following resolution: by evidence, rejected.

"Resolved, That the Committee of Elections be disSee case of M. charged from the further consideration of the memorial and Leib, ante, P. documents of Matthew Lyon, and that he have leave to withdraw his memorial;" which resolution was concurred in by the House.

165.

PARMENIO ADAMS US. ISAAC WILSON, of New York.

[Whether a ballot, having a mark of erasure upon it, though it is still legible, be intended as a blank vote, is a question which ought to be left to the inspectors of the election.

Duplicate or folded ballots, being prohibited by law, are to be wholly rejected, and are not entitled to be counted as single ballots.

Where an election has been conducted with fairness on the part of the inspectors, though they may have erred in making their returns, yet their evidence is "competent, and ought to be received, to correct any mistakes that may have occurred in returning the votes given at such election."]

DECEMBER 8, 1823.

Petition presented, and referred to the Committee of Elections.

On the 30th of December, 1823, the committee made the following report:

Elections.

That, by the laws of the State of New York, "for regu- Report of the lating elections," all elections are by ballot, and are directed Committee of to be held by towns in each county within the State, and the supervisor, assessors, and town clerk of the several towns, or a majority of them, are to constitute a board of inspectors, whose duty it is to superintend the elections in their respective towns, and, after making a canvass of the votes given at any election, to cause the same to be recorded in the town books, and transmit to the office of the county clerk a true return of the votes so canvassed, when the same shall be examined by a board of county canvassers. After the whole number of votes given in the county is ascertained, and an entry thereof made by the clerk on the records of the county, he shall immediately make out three certified copies thereof; one of which he shall forward to the Governor of the State, one to the Comptroller, and one to the Secretary of State, to be laid before the State canvassers. The State is divided into districts for the election of Representatives to Congress, and the county of Genesee forms the twenty-ninth district. The election for Repre

* See Reed vs. Cosden, ante, p. 353.

1st SESSION.

Elections.

1823. sentatives in the present Congress was held on the first 18th CONGRESS, Monday of November, 1822, and the two succeeding days. It appears that, at that election, Isaac Wilson and Parmenio Report of the Adams were candidates in opposition; and, by the official Committee of certificate of the clerk of Genesee county, it appears that Isaac Wilson, by the returns from the several towns, had 2,093 votes, and that, by the same returns, Parmenio Adams had 2,077 votes. The petitioner rests his claim to a seat solely on the ground that, in the town of China, in said county, the board of inspectors made a mistake, by returning for the sitting member 67 votes, when, in fact, the true number given for him was only 45 votes, and ought to have been so returned. The sitting member relies on three points to support his right to retain his seat. 1st. That in the town of Attica a mistake took place, similar in its nature to the one which occurred in China, by which mistake the petitioner had 98 votes returned for him by the board of inspectors of the election in Attica, when the true number given was but 93 votes, and that so it ought to have been returned. 2d. That, in the town of Middlebury, the board of inspectors rejected one vote which ought to have been counted for him, because, it being a printed ballot with his name thereon, but partially erased with the stroke of a pen, was considered as a blank vote; and, 3d. That, in the towns of Stafford and Byron, six ballots were improperly destroyed by the boards of inspectors in those towns, and not included in the canvass, which he contends were given for him, and ought to have been taken into the general estimate of those towns. In support of the different allegations of the parties, a number of affidavits are produced, taken in the presence of both. No attempt is made to impeach the character or veracity of any of the witnesses. They are principally officers of the election, chosen by the citizens of their respective towns, and presumed to be gentlemen of respectability. The committee have carefully examined the testimony, and consider it as entitled to full credit. They are clearly of opinion that the testimony respecting the return from the town of China establishes the fact that 22 votes were returned for the sitting member more than the number he actually received; and they are equally satisfied that, in the town of Attica, 5 votes were returned for the petitioner more than were given for him by the electors of said town. With respect to the vote which the sitting member claims in the town of Middlebury, the committee are of opinion that he has failed to produce proof sufficient to warrant the conclusion that the board of inspectors acted improperly in considering it a blank ballot. This ballot, it appears, was a printed one, and the name of the sitting member was impressed thereon, but "was excluded from the canvass and estimate, because" it was defaced "by one stroke of a pen drawn over the

1st SESSION.

Elections.

name, but that every letter was distinct and legible." All 1823. the inspectors of election agree in the opinion that, from the 18thCONGRESS, manner in which this ballot was defaced, it must have been the intention of the elector who presented it, to have it con- Report of the sidered as blank. It will be observed that these inspectors, Committee of from the nature of the trust confided to them, and from the obligations they would necessarily feel to discharge their duty with fidelity, together with the superior advantage which their situation afforded them of judging more correctly than any spectator or by-stander could do, must be presumed to be more competent to decide this question than any other persons could be. With the decision of the board of inspectors in this case, the committee are not disposed to interfere. They consider it a question on which it would be impossible to come to any deliberate conclusion, without being possessed of the same opportunity and advantages which were afforded to the board of inspectors. No person can undertake, with safety, to determine, from any description of a ballot of this sort, what decision he might be disposed to make from an actual inspection of the ballot itself. By the law of the State, the board were constituted the judges. They performed their duty, and are still convinced that their judgment was correct; and the committee are not disposed to question their decision. The claim of the sitting member to have certain votes, which are stated to have been given for him in the towns of Stafford and Byron, counted in his favor, is not considered to be sufficiently established by the testimony. All the inspectors agree that the ballots were folded together, and a reference to the poll lists confirmed the fact that more ballots were received than were names on those lists. The suggestion of some of the witnesses, that these ballots might have been innocently delivered by the electors, without any intention of committing fraud, will not avail in a case of this kind.* By the law of the State, every elector who conducts in that way forfeits his right of suffrage on that occasion. The law on the subject is positive. It provides 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." Upon a full view of the whole case, the committee are of opinion that the election was conducted with fair and honest intention on the part of the board of inspectors of the several towns to which their inquiries have extended; and that their testimony is competent, and ought to be received, to correct any mistakes which may have occurred in returning the votes given at said election. That justice, in this case, requires that there be deducted from the aggregate number of 2,093 votes returned for the sitting member, the 22 votes

In a subsequent case, the committee allowed a ballot containing three names to be counted as one. [See Washburn vs. Ripley, first session, twenty-first Congress.]