Nobody would for an instant allow a witness to swear that there was a certificate in the secretary's office showing that so many votes were cast for either party; but the production of the certificate would be insisted on, and it is equally absurd to allow a witness to come and swear that any one voted without producing the record of his voting. Taking the case in the foregoing unanswerable points of view, we conceive the whole case ends in favor of the sitting member. [The report concludes with the subjoined resolution. The summing up of votes cast is omitted.] Resolved, That the Hon. Lewis D. Campbell is entitled to retain his seat as a member from the third congressional district in the State of Ohio to this Congress. ISRAEL WASHBURN, JR. JAMES WILSON. MAY 13, 1858. The following extracts are taken from the debate in the House upon this case: Mr. WILSON. The House had refused to allow the sitting member to return to Ohio, and take additional testimony. The committee, therefore, were to determine the case upon that already taken. At this meeting, to which I have referred, the following resolution was unanimously adopted. If I am wrong, I can be corrected : "Whereas the House has declined to give the parties leave to take further testimony"Resolved, That the committee proceed to make up the result of the election on the testimony filed, regularly taken within the sixty days, except where the parties agreed that testimony otherwise taken may be read." Here, then, all agree, the Committee of Electious agree, all political parties agree, that the case should be decided upon the evidence taken within sixty days, under the law of 1851, and that all other evidence should be excluded from consideration. This course was followed by the committee in the adoption of the resolution just read. The contestant had his evidence before the committee. The sitting member had his evidence only partially before the committee, and we were to make out our decisions upon that evidence as presented, and none other. But, sir, when the committee came to make up that decision, there was not a single particle of evidence, and there is not now, in all the evidence, one witness who testifies as to any majority of the sitting member. There is no evidence on the part of the contestant showing what the vote was on either side. There is no evidence as to the majority of the sitting member. It is said that Campbell's majority was nineteen. Where is the evidence of the fact? There was none before the committee; there is none before this house; and I have just as much right to assume that the majority was nineteen hundred as the contestant or his friends have to assume that it was nineteen. Here is the evidence of perhaps one hundred witnesses, and not one has testified as to the vote given either for Mr. Campbell or Mr. Vallandigham in the third congressional district of Ohio. Not one witness testifies as to what the majority of the sitting member was, or whether he had a majority of thousands. Early in the month of December last an abstract was brought into this house, and referred to the Committee of Elections, which purports to be an abstract of the votes returned in the third congressional district to the secretary of State of Ohio. It has been offered in evidence in this case. But is it evidence, either under the law of 1851 or the resolution of the committee? When was it filed? Was it filed within the sixty days? Is it a part of the testimony of Mr. Vallandigham? Is it a part of the testimony of Mr. Campbell? By no meansof neither; for how can this be considered as evidence proper in the case, when it was received and filed, as is the fact, more than one hundred days after the time required by the vote of this house and the resolution of the Committee of Elections under the law of 1851, and more than nine months after the election took place? I ask you, again, how that assumed abstract came here? Who brought it? By what right is it here to-day? By what authority was it filed with the clerk of the House? What legal officer sent it here? None whatever. No legal officer ever presented any abstract to this house of that character, or filed any such with the clerk. Who, then, ordered it to be sent to the Committee of Elections? Who has made that a paper which shall govern and determine this case? There is no legal mode by which such testimony, in such form, could have been brought before the Committee of Elections. I say the legal mode has not been adopted in this case. Now, sir, twenty days after the assembling of Congress, and nine months after the election H. Mis. Doc. 57-16 had been held, this manufacture for evidence was presented, upon which we are called to determine which party is entitled to sit in this house as the representative from the third congressional district of the State of Ohio, notwithstanding the imperative rule, which was deliberately adopted, that all testimony produced after sixty days should be rejected. Now, if you are prepared to make this rule, as a Procrustean bed to be extended or contracted, let it so be understood, and then it will be known that laws and resolutions here made may be enforced or disregarded as shall best subserve party ends and party purposes. * * * # I wish now to call the attention of the House to another point, and that is as to the notice and the grounds of the contest in this case. I wish to call the attention of the members of the opposite side of the House to the fact that, with the exception of two specifications, the whole notice of contest on the part of the contestant is vague, indefinite, and uncertain, and does not even require an answer on the part of the sitting member. In regard to that I am not confined to my own statement. I will bring testimony which should be recognized at least on the other side of the House. I refer to the case of Archer and Allen in the last Congress. The contestant said in reference to that case that the minority did not seem to look at the authorities. That, at least, was not complimentary to the honorable gentleman from Illinois, [Mr Harris,] and the honorable gentleman from Georgia, [Mr. Stephens, ] and those who were of that minority. Let us look at the notice. Here are nineteen specifications. I say that each and every one of them, except two, is vague, indefinite, and uncertain. I will read one or two of them: "2. That, in counting out, sundry ballots were counted by the judges of election for you which should have been rejected. 66 "3. That sundry persons were permitted to vote for you in townships and wards of which they were not legal residents." What persons? Sundry" persons. Where do they live? Have they "a local habitation and a name"? Are they John Doe and Richard Roe? Who are these parties—these sundry persons? From what townships in the third congressional district of Ohio do they hail? Was it in Montgomery, Butler, or Preble that they voted? You will see that the law of 1851 provides as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act, whenever any person shall intend to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly, the grounds upon which he relies in the contest," Now, sir, permit me, for one moment, to read the statement made by the minority of the committee, in the case of Archer and Allen referred to, which is directly in point. Mr. Harris, of Illinois, says: "It is true that a notice that the sitting member's seat would be contested was served upon him within the time required by law; but it is equally true that the notice did not contain any of the specifications which the law requires. It is also true that the contestant, when he gave that notice, did not know how he was to contest it, or upon what particular grounds; or, if he did, he was guilty of disingenuousness in not specifying them, as the law, as every sense of fairness, required him to do But, from the testimony, we are left without a doubt that when he gave the notice he did not know how, or upon what points, he was to make the contest. In his notice, therefore, he dealt only in generalities. He constructed a dragnet notice, by which he could include everything which chance or circumstances might reveal.' Here is another drag-net, identical with that in the case of Archer and Allen. I have here, also, what was said by the honorable gentleman from Georgia, [Mr. Stephens, ] and I would like to know from him, now and here, whether he will stand by his own report, made in that case of Archer and Allen, or not? Mr. STANTON. Mr. Speaker, I do not propose to go into the discussion of this contested election at length; but I desire, on behalf of the State of Ohio, and as one of her representatives, to enter my careat against what seems to have been recognized as a proper construetion of her constitution, and the rights of voters under it. It seems to have been granted on all hands, that, under the authority of the Dred Scott decision, no person having any African blood in his veins is a voter under the constitution of Ohio. Now, sir, I do not admit any such construction of our constitution. I do not propose any discussion of the Dred Scott decision. Everybody knows that I do not subscribe to it. But I say, that consistently with that decision, persons having more than one-half white blood, and less than one-half African blood, are legal voters under the constitution and laws of Ohio. Now, sir, for the purpose of the argument, I am willing to concede that any person having any African blood in his veins is held by the Supreme Court of the United States not to be a citizen of the United States so far as to entitle him to sue in the courts of the United States or to entitle him to any of the rights of citizenship under the laws of the United States, because, under those laws, the federal authorities are supreme and sovereign. But, sir, Í do hold that the courts and constituted authorities of the State of Ohio have a right, in the last resort, to put a construction on their own constitution, and on their own laws; and what ever is held by the Ohio courts to be a sound construction of an Ohio law, or an Ohio constitution, is its true construction everywhere, and wherever it may be called in question; and the United States Supreme Court is bound to follow it. Mr. LAMAR. I did not expect to participate in this discussion. nor can I do so now with any justice to myself, laboring, as I am, under a severe indisposition. But, sir, the attack which has been made upon the report of that portion of the minority of the committee with whom I am acting upon this subject-an attack partaking more of ingenuity, I will say, with all due respect, than of fairness-leaves me no alternative but to come forward and defend the positions taken, and the general conclusion arrived at in that report. Before I come to the consideration of the points which it presents, I desire, if I can, to fix the attention of members upon one point alluded to by the gentleman from Indiana, [Mr. Wilson;] a point which, though entirely unnoticed, and constituting no part of the contestant's case as made out in the report, is nevertheless, to my mind, absolutely conclusive as to the right of the sitting member. Reflection upon the subject, and an examination of the authorities, have convinced me that the election in the second ward of Dayton, excepted to by the contestant, and which resulted in a majority of ninety-two for the sitting member, was illegal and void. I hold that the entire returns of that ward ought to be rejected, upon the ground that the person who undertook to preside as judge over that election had no authority to act as such, being appointed, not in accordance with the law, but in direct violation of its provisions. By the law of Ohio regulating elections, the councilmen of each ward are constituted, ex officio, judges of the elections in their respective wards; and in the absence of either of those councilmen, or if either of them shall be a candidate at any election, the law provides that it shall be the duty of the electors of said ward, or the electors present, to choose a person to act as judge at said election. * Congress has, in repeated instances, where the conduct of the returning officers was irregular, or the returns of the election informally made out, waived the irregularities and informalities, provided the election itself was fairly and legally conducted; but these precedents are all based upon the broad and obvious distinction existing between the returns of an election and the election itself. The election is the choosing of their representative by the people, in accordance with the law; whilst the returns are the mere evidence of the result, as furnished by the officers, consisting of certificates of boards and commissions. The election is the great fact, of which the returns are the mere legal evidence. Now, these returns may be informal; the acts of the officers may be irregular; Congress may set them aside, or waive them, without affecting the validity of the election itself. The fact of the election still exists, although Congress may ascertain its existence by evidence other than the returns. But, sir, when you come to inquire into the election, it is quite different. The times, places, and modes of holding, and the qualifications of its officers, as prescribed by law, enter into the very essence of an election; are indispensable to its validity; and the fact of the election does not exist unless these are substantially carried out. And hence, whilst Congress has been very liberal in waiving the mistakes or neglect of returning officers-the officers duly appointed-it has ever been jealously rigid in enforcing the law in relation to the election. I will refer gentlemen to a case which occurred in the fourth Congress, of which many of the framers of the Constitution were members, and among them James Madison. In that case the very principle is laid down which I contend for; it is almost a parallel with the case under consideration. I refer to the case of Jackson vs. Wayne, (Contested Elections, page 47.) In that case it was held that "where the law required the election to be held by three magistrates, an election held by three persons, two of whom were not magistrates, should be set aside." In another case it was decided that "where the selectinen are returning officers, an election is conducted by persons who are not duly elected selectmen, the proceedings of the persons thus assuming to act will be void." There are many other cases directly in point, which I have not time to refer to. The case quoted by the gentleman from Indiana to show that the acts of an officer de facto are valid as to third persons, is wholly inapplicable. It was a case of quo warranto in a court of common law; and the language of the judge demonstrates, more clearly than any thing I can say, the utter inapplicability of the decision to the case of an ordinary contested election: "The result of an election, when controverted in court, is like a judgment sued upon. We have no power to reverse it for errors in conducting it, and thus give those concerned in it a retrial." Is this true of a contested election in Congress? Why, sir, nothing is more common than for this house to review the proceedings of those who conduct the elections, and to reverse their judgments. Analogies drawn there from the practice of common law courts of limited jurisdiction are hardly applicable to a body like ours, made by the Constitution judges of the election, returns, and qualifications of its own members. The words of the Constitution re broad and comprehensive, and embrace within their scope every subject and question * connected with membership. We are judges not of the returns and qualifications merely, but of the election of members. We can go behind the returns and inquire into the elections and into the qualifications of the officers, and set aside their acts if they be not duly qualified. Mr. HARRIS. Nearly all the cases referred to in the contested elections in England refer to the qualifications of the voters alone. The votes there are given rica voce; and the register lists and poll-books show the names and residences of the voters, and the names of those for whom the votes are cast; leaving the question of qualification as the only one that can ordinarily arise in contests for seats in the House of Conimons. Those who are entitled to vote in the counties in England are "freeholders having land or tenements to the value of forty shillings a year above all charges, &c. Copyholders, or of any other tenure than freehold, whether of inheritance or for life, to the value of ten pounds, above rents and charges, &c. Lessees or assignees for a term originally created for sixty years or more, value ten pounds; for twenty years or more, value fifty pounds above rents and charges," &c. In the boroughs, including cities and towns, the qualifications are different; but in all, the possession of certain property interests are requisite; and in questions that have arisen in England as to the qualifications of voters, in most cases it has directly related to their existing interest in property. And proceeding upon the presumption that a man will not make a confession or declaration against his pecuniary interest, it is true that many cases are reported in the English books when the statements of the voter against his interest have been received to exclude his vote. There are also decisions there against the admissibility of such statements, but the general current is in favor of their reception. But it will be clearly seen that the statement of a person against his possession, or right of possession, of a tangible, existing, valuable interest or estate, and by which his possession or right of possession may be lost, is a very different matter from the loose and often foolish talk of persons who may not be even aware of the import or consequences of what they say, or may mean the reverse of the construction placed upon their words by the hearer. Then the hearer himself may have lost, misapprehended, or forgotten some of the words used, and inferences may be drawn from them wholly erroneous. You once establish such a rule, and every illegal voter can, by making a false statement in the presence of a witness, make it appear that he voted directly the reverse of the fact; and while he in truth voted for A, you will deduct his vote from B. In this country, where almost every one has a voice at the polls, it is doing, in my judgment, violence to reason, to hold that admissions and declarations here, as to the qualifications of voters, more especially those made before and after voting, are to be placed upon the same footing as in England, where the admissions and declarations are against the pecuniary interest of the party making them, or where, relating to the question of bribery, they go to the effect of attaching to him who makes them the severest disgrace-a disqualification for ever from voting and extreme penal consequences. There is no similarity or analogy in the condition of things that ought to make the decisions there authority here. Declarations or admissions made at the polls, when the act of voting is performed, may often, with the greatest propriety, be admitted as a part of the res gesta. There is but one case which I have found in the English decisions where the statements of a party as to whom he had voted for were ever received in evidence, and that is the Windsor case; but that was received because neither party objected, and cannot be cited as a precedent. The cases cited in Ph. Ev. Con. and H., note 322, are taken from 3 McCord R., note 233, and they in turn from the English cases cited, which I have attempted to show have no analogy to our condition of things here. So much for these authorities and precedents. On the 25th of May, 1858, the House, by a vote of yeas 107, nays 100, declared that the contestant, Mr. Vallandigham, was entitled to the seat. NOTE. The debate on the preliminary question will be found in vol. 36, part 1. In favor of report: Mr. Harris, page 559; Mr. Stevenson, page 560; Mr. Boyce, page 562; Mr. Phillips, page 564; Mr. Stephens, of Georgia, page 558. Against report: Mr. Gilmer, page 559; Mr. Washburne, page 561; Mr. Wilson, page 563; Mr. Marshall, page 585. The debate upon the main contest is in vol. 36, part 3. For sitting member: Mr. Wilson, page 2321; Mr. Gilmer, page 2324; Mr. Bingham, page 2327; Mr. Billinghurst, page 2324. For contestant: Mr. Vallandigham, page 2317; Mr. Stevenson, page 2329; Mr. Lamar, page 2331; Mr. Harlan, page 2334. For vacating the seat: Mr. Harris, page 2336. THIRTY-FIFTH CONGRESS, FIRST SESSION. BROOKS VS. DAVIS, of Maryland. Where the contestant memorialized the House to make a special investigation of his allegations, examining the witnesses at its bar, held that contestant must take his evidence under the act of 1851. IN THE HOUSE OF REPRESENTATIVES, FEBRUARY 12, 1858. Mr. BOYCE, from the Committee of Elections, made the following report: The question for the decision of the House will be developed by a brief statement: The memorialist (Mr. Henry P. Brooks) and Henry Winter Davis were the only candidates for Congress in the fourth district of Maryland at the election which took place on the 4th day of November, A. D. 1857. By the returns of that election Mr. Davis appeared to be elected by a very large majority. The memorialist, however, gave notice, under the act of 1851, of intention to contest the right of Mr. Davis to his seat, on the ground that there was no real expression of the popular will, but that the election was carried by fraud, intimidation, and violence. In this stage of the case Mr. Brooks has memorialized the House to appoint a committee with adequate powers-to wit, in Washington or Baltimore-to investigate the facts connected with said election. The memorial of Mr. Brooks is in the following words: To the House of Representatives of the United States : Your memorialist respectfully represents to your honorable body that he and the honorable Henry Winter Davis were the only candidates for Congress in the fourth congressional district of Maryland at the election which took place on the fourth day of November, 1857. By the returns of that election the said Davis appears to have been elected, and has taken his seat in this body; but your memorialist believes and charges that fraud and violence characterized and controlled the whole proceedings at the said election on the 4th day of November, 1857, so as to prevent the free exercise of the right of suffrage, and produce a different result from what would have been the case had a fair election been held; and he has therefore determined to bring the matter before your honorable body, in order that justice may be done. To this end your memorialist gave the notice required by the act of Congress of 1851 in reference to contested elections. The said notice was given on the 26th of November, 1857, and has not yet been replied to. It contains, specifically, the charges which your memorialist makes against the character of the said election, and which he expects to prove. The said notice is appended hereto, marked A, and is prayed to be taken as part of this memorial. Your memorialist, however, respectfully submits to this house and urges upon its attention some reasons why he ought not to be required to proceed under the said act of Con gress. He believes that the said act would prove insufficient and unsatisfactory in such a case as this, and he therefore respectfully asks that a committee with adequate powers, may either here or in Baltimore, investigate the affair in a full and ample manner. The reasons suggesting the necessity for this course are as follows: 1st. That the disgraceful proceedings charged by your memorialist implicate the authorities of Baltimore as being either unwilling or unable to preserve the public peace; and it is upon those authorities that reliance is to be placed for inspiring the witnesses with that sense of personal security indispensable to the proper investigation of this case, for insuring their personal safety, and for preserving order during the examination. 2d. That but sixty days are allowed for evidence to be taken, with the right of the contestee to cross-question and examine the witnesses; and the extensive nature of the conspiracy charged would prevent as full investigation as should be had, unless conducted by a power competent to prevent delays, which could not be as effectually done by any judge or inagistrate as by a committee of this house with extraordinary powers. 31. Ten days' notice is required, under the act of Congress, to be given to the contestee of the names and residences of witnesses, and your memorialist believes that many persons whose testimony is important would be intimidated and prevented from appearing. 4th. The disposition and character of the witnesses, so readily ascertained from their manner by those present at an examination, will be totally lost in its effect if the evidence be in the nature of depositions. Your memorialist, therefore, respectfully asks your honorable body, after being satisfied, by evidence summoned to the presence of the House, of the truth of the facts charged by the contestant against the character of the said election, or upon full investigation by a committee with adequate powers, to vacate the seat of the Hon. H. W. Davis, and order a new election to be held. And your memorialist will ever pray, &c., &c. HENRY P. BROOKS. |