Vroom, 27,990; Danial B. Ryall, 27,939; William R. Cooper. 27,954; Joseph Kille, 27,924. For John B. Ayerigg, 28,150; John B. P. Maxwell, 28,239; William Halsted, 28,192; Charles C. Stratton, 28,252; Thomas Jones Yorke, 28,177. For Philemon Dickinson, 3. For John B. Acrigg, 1.

[The report then goes on to declare that this statement does not include the votes received at the townships of Millville and South Amboy. The vote of the two sets of claimants in these townships the report alleges was as follows: For Messrs. Dickerson, 502; Vroom, 502; Ryall, 502; Cooper, 501; Kille, 502. For Messrs. Ayerigg, 144; Maxwell, 144; Halsted, 145; Stratton, 144; Yorke, 144. The report closes as follows:]

Thus it appears that prima facie upon the evidence in the possession of the committee, Philemon Dickerson, Peter D. Vroom, Daniel B. Ryall, William R. Cooper, and Joseph Kille, are the "five of the ten 'individuals claiming seats from the State of New Jersey" who "received the greatest number of lawful votes from the whole State for representatives in the Congress of the United States at the election of 1838 in said State."

The minority report sets out with the subjoined statement of the case:

"The commissioned members claimed the vacant seats under and by virtue of the commissions issued by the executive of New Jersey; and insisted that if the committee should determine to go back of those commissions, and to inquire into the merits of the election, they had a majority of the legal votes polled, and also a majority of the votes lawfully certified to the governor.

"The non-commissioned claimants admitted the authenticity of the commissions, but alleged that they received the greatest number of votes polled; that the governor and privy council unlawfully refused to count the votes from the townships of Millville and South Amboy, for the reason that they were not included in the certificates of the clerk of the counties of Middlesex and Cumberland; and that, had the votes of these townships been counted, the result would have been a majority in their favor. That the commissions being thus erroneously and unlawfully issued, were void.

"The commissioned members alleged numerous frauds and illegalities in the election; some of which they insisted ought to set aside the polls; and others invalidate the votes; such as excluding duly elected persons from officiating as judges of election; the determination of electing officers to receive alien votes, and, in fact, receiving such votes, knowing that they were illegal; disregarding all challenges of illegal votes, and permitting persons, attempting to challenge, to be driven away by threats and violence; and fraudulently abstracting votes given for them, and substituting others for their opponents, and rejecting legal votes offered for them, and admitting illegal votes on the other side; and they also submitted to the committee a list showing about 230 illegal votes given and counted for the non-commissioned claimants, and three or four legal votes offered for the commissioned members and rejected. They also alleged that they expected to prove an extensive conspiracy among the friends of the opposite set of claimants, to perpetrate these frauds and obtain these illegal votes; that they had taken some evidence to establish said fact, but had been prevented from completing the proofs, because there was no law regulating the mode in which the same should be obtained, or giving compulsory process to compel the attendance of witnesses; and also because the friends of the noncommissioned claimants had persuaded witnesses not to attend for examination, and had prevented officers from taking depositions by intimidation and threats of public prosecution for so doing; and they asked further time, and the authority and direction of the committee, to enable them to compel the taking of their testimony.

"The non-commissioned claimants denied all knowledge of the alleged frauds and illegal votes, but stated that they had heard of some alien votes having been given at Millville, and admitted the fact; and also presumed that alien votes were given in other parts of the State; but believed that there were as many on the one side as on the other."

[The minority of the committee objected strenuously to the making of a report while the parties concerned were still taking testimony, and the committee had not completed its investigation. They say:]

"A majority of the committee, paying no regard to absolute instructions of the House, to report the LAWFUL votes, decided that the introduction of the word lawful' did not affect the original meaning of the proposition, and that the resistance it had encountered in the House from four of their own members had no object in it but a perverse and obstinate determination on their part to oppose a perfectly harmless amendment; and they proceeded at once, without deigning to go into an examination of the testimony before them, to make a report on the whole number of votes given at the polls, lawful and unlawful, the men and the boys, the aliens and the citizens, without discrimination, and without stopping to inquire whether the elections were held in the manner prescribed by law, when they knew that allegations had been made and partially established; that all these matters would be proven, and many of them, perhaps enough, already proven by the testimony then before them to change the result, at least in part, if they would have opened and examined it. But this, the committee conclude, and labor throughout their report to prove, they were not authorized to do, because they were directed to report forthwith on the lawful votes, and that the effect of that omnipotent and pungent word forthwith' neutralized and nullified the word lawful, and rendered it perfectly nugatory; and that being required to report forthwith the lawful votes, they were of necessity compelled to regard all unlawful votes as lawful votes, and that that was what the House intended when, by a vote of 97 to 96, they determined to insert it."

On the 16th of March, by a vote of 111 to 80, the House declared that Messrs. Dickerson, Vroom, Kille, Ryall, and Cooper, were entitled to seats from New Jersey as members of the twenty-sixth Congress, but that this decision shall not affect the rights of the other claimants to continue the investigation or

contest.

On July 8, 1840, the Committee of Elections submitted a final report, which is as follows:

The Committee of Elections, to whom was referred the case of the contested election from the State of New Jersey, report:

That at the opening of the House of Representatives of the present Congress, Joseph F. Randolph, John B. Ayerigg, John P. B. Maxwell, William Halsted, Charles C. Stratton, and Thomas Jones Yorke, presented themselves with the usual credentials from the executive authority of New Jersey, and claimed to be the lawful representatives of the people of that State.

To the right of Joseph F. Randolph there was no opposition, and he was admitted to a seat. But, simultaneously with the appearance of Messrs. Aycrigg, Maxwell, Halsted, Stratton, and Yorke, five other gentlemen, to wit, Peter D. Vroom, Philemon Dickerson, Joseph Kille, William R. Cooper, and Daniel B. Ryall, presented themselves, and offered evidence to show that they had received the greatest number of votes from the whole State, and were entitled to the returns.

The House of Representatives refused to admit either party of these ten claimants in its organization, and on the 13th of January adopted the following resolutions:

On motion of Mr. Campbell, of South Carolina,

Resolved, That all papers, or other testimony, in possession of or within the control of this House, in relation to the late election in New Jersey for representatives in the 26th Congress of the United States, be referred to the Committee of Elections, with instructions to inquire and report who are entitled to occupy, as members of this House, the five contested seats from that State; and that the committee have power to send for persons and papers.

Resolved, That a copy of this resolution be served on John B. Aycrigg, John P. B. Maxwell, William Halsted, Charles C. Stratton, Thomas Jones Yorke, Peter D. Vroom, Philemon Dickerson, William R. Cooper, Daniel B. Ryall, and Joseph Kille, all citizens of New Jersey, claiming to be representatives from that State.

On the next day, the 14th January, the committee assembled; and for its proceedings from that time to the 3d of March, reference is made to the printed journal, in report No. 506 of the present session.

By that report it appears that the credentials held by J. B. Aycrigg, J. P. B. Maxwell, William Halsted, Charles C. Stratton, and Thomas Jones Yorke, were based on an imperfect canvass, not embracing the whole number of votes received in the State, but that the votes of two townships, to wit, Millville and South Amboy, had not been included in such canvass.

By the adoption of that report, the House made substantially a correction of the returns, and awarded the seats to Peter D. Vroom, Philemon Dickerson, Daniel B. Ryall, Joseph Kille, and William R. Cooper, with a proviso that nothing contained in the resolution should be so construed as to prevent the investigation into the election from being continued in the manner heretofore authorized by the committee, on the application of the claimants.

Thug it is evident that, notwithstanding the admission of the five claimants last named to seats, the proceedings of the committee, and of the parties, in regard to the ultimate merits of the election, were not affected; and on the 16th day of April the parties reappeared before the committee with a mass of testimony, the result of a canvass extending over the whole State. This testimony, taken under the agreement of the parties (see Exhibit N) and the law, relates to nearly six hundred distinct cases of votes polled for one party or the other, alleged to be unlawful, and of votes alleged to have been improperly refused at the polls. Besides these cases, there were also involved the question of legality of the poll holden at South Amboy, and the allegation of fraudulent practices by the officers of the election at Saddle river.

In the hope that the grounds of the controversy might be more strictly defined and narrowed, and that the testimony scattered through so many separate depositions bearing on the same points, might be so arranged and collected as to facilitate the labors of the committee, while it should insure the ends of justice, the testimony in the possession of the committee was, on the 16th day of April, by the mutual agreement of the parties, delivered into their hands, and the committee continued the investigation of other cases pending before them.

Although, from this arrangement, much greater delay ensued than the committee anticipated, the subsequent investigation proved that, without the assistance of the parties, the difficulties of the investigation would have been almost insurmountable; testimony in relation to the same vote being often found to have been taken not only from many different witnesses, but at various and distant times and places, to which no clue would else have been furnished.

Nevertheless, impatient of delay, the committee passed resolutions calling on the parties on the 13th and 20th May, and, finally, on the 2d June.

The committee having previously, under the power granted by the House,

ordered the papers to be printed, the final investigation was commenced on the 3d June, with a volume of evidence of nearly 700 printed pages.

From that day until this, the journal of the committee, herewith reported, will evince the magnitude of the task to which they have been devoted.

The most minute and tedious course has been adopted. The case of every individual vote has been treated as a distinct controversy. The testimony relating to it having been first read, arguments upon the facts or law, or both, were heard from parties, frequently followed by elaborate discussion in the committee itself. The question was then put upon a formal resolution, devised with reference to the prima facie legality of the proceeding at the polls and the burden of proof; which resolution, as applied to each case, with the yeas and nays thereupon, will be found in the journal. As applied to alleged unlawful votes, it presents two affirmative propositions: 1st, that the vote in question was not a lawful vote; and, 2d, that it be deducted from the votes of one or the other of the parties. The first proposition involved the inquiry whether the vote was actually cast at the polls; and, for the ascertainment of this point, the committee necessarily resorted to parol proof, as the best evidence which the nature of the case would admit of; the laws of New Jersey not requiring the poll-lists to be preserved as a record of the actual voters. Mere hearsay declarations of the alleged voter, as to the fact of his having voted, have been uniformly rejected.

The fact of the voting being ascertained, the alleged disqualification, as a question of law and fact, was considered. With reference to their disqualification, the impeached voters may be divided into divers classes, to wit: aliens, non-residents of the county, non-residents, minors, men of color, persons non compos mentis, and persons not possessed of the requisite property qualification.

In examining the various alleged grounds of disqualification, the principal differences of opinion in the committee arose from the constantly varying facts of each case, (which operated variously upon the minds of different members,) and upon the sufficiency of the evidence to establish the result.

The most serious of these differences of opinion arose in the consideration of the first-named class of impeached voters, to wit, aliens. A minority of the committee were of opinion that it was sufficient for the party objecting to the vote to prove that the voter was alien born; and that the burden of proof was thereby thrown upon the party for whom the vote had been rendered at the poll, to prove that the voter had been naturalized. And it was urged, with great earnestness, that to adopt any other rule of evidence would be to depart from the plainest principles of law and reasonto impose upon the party objecting to a vote the proof of a negative; and a negative, too, which nothing short of searching of every court of record having common-law jurisdiction, a clerk, and seal, in the Union, could possibly establish.

Without minutely criticising the argument, it is deemed proper to inquire to what practical consequences the rule would lead, if it be fully admitted; for the proposition is to be taken, not as a mere abstract annunciation of the order of proof, but as practically applicable to the decision of cases of contested election in the House of Representatives.

The committee, as the organ of the House, have a positive affirmative proposition to adjudge and declare, before a sitting member can be displaced, or a single vote received for him at the polls can be ejected from the ballot-box. Before a member is admitted to a seat in the House, something like the judgment of a court of competent jurisdiction has been pronounced upon the right of each voter whose vote has been received; and in order to overturn this judgment, it must be ascertained affirmatively that the judgment was erroneous. Prima facie, it is to be taken that none

but the votes of qualified voters have been received by officers whose sworn duty it was to reject all others. This principle will be found to have been solemnly and unanimously declared by the committee as a basis of future action soon after entering upon the investigation of this case. (See report No. 506, page 46.)

It is not sufficient that there should exist a doubt as to whether the vote is lawful or not; but conviction of its illegality should be reached, to the exclusion of all reasonable doubt, before the committee are authorized to deduct it from the party for whom it was received at the polls.

Will the mere naked fact that a voter was alien born, in the absence of all other proof, produce such conviction on any candid mind! Is it not already answered, or, rather, is not even a presumption from that fact alone precluded, by the judgment at the polls All foreigners from birth are not disqualified from voting, but only a certain class. Are we to presume the voter, whose vote has been received by the officers of the election, to be of the disqualified or the qualified class? The question is answered by the unanimous resolution of the committee already referred to, as well as by the reason and analogy of the case.

The committee cannot believe that the House of Representatives would eject a member from his seat upon the mere proof that every man of his constituents was alien born. It is not apprehended that, after an election has been regularly held, the House would even consider an investigation necessary upon a petition which alleged no other fact.

The history and statistics of the country preclude the principle insisted on by the minority of the committee as a rule of evidence applicable to cases of contested election. Our institutions acknowledge no difference between the native-born and naturalized citizen in the enjoyment of the elective franchise. While the spirit of our laws continues to receive, with such enlarged and gracious beneficence, the stranger and exile from every clime; while the Genius of Liberty stands, with wide-spread arms, attending the term of their short and easy novitiate, to absolve them from all alien bonds, and to administer the sacred rights of their political regeneration; surely the fact of foreign birth alone cannot suffice to annul a right which has been affirmed by a tribunal having the amplest power and means to test it, and exercising that power under the requirements of law and the solemn sanctions of an oath.

But it may be asked, Does not the presumption originally arising from the fact of foreign birth acquire additional strength; and may it not overturn the decision at the polls, when neither the voter, nor the party claiming the benefit of his vote before the committee, adduces here any evidence of his naturalization? If the voter refuses to testify to his own disqualification, (as he legally may,) how can the party impeaching his vote proceed further in the proof of his allegation? Shall he be put to the proof of a negative? Is not the voter a party to the proceeding; and is not his neglect to rebut the proof of his birth by the evidence of his naturalization conclusive against him?

Undoubtedly, if the voter be, to all intents and purposes, a party to this proceeding, claiming to exercise a right here, such would be the conclusion; and, unless he should make out his right affirmatively, he must fail to establish it. So it was at the election; and so it would be here, if the committee were holding a poll. But such is not the vocation of the committee or the House. If it were, the mere reference of the petition, the mere creation of a controversy, would annul all that has been done at the election. Then, indeed, things would be taken up and treated de novo; voters, who had once maintained their right, and exercised it at the polls,