And under the allegation in this case, 1,990 may have been excluded at one ward, and one at each of the other wards; and this is relied on to avoid the whole election at all twelve of the wards.

It is therefore apparent that there is no case stated to avoid either the whole election or any part of it. It is not stated that the combination anywhere arrested the election, nor anywhere made such a display of force as ought to have intimidated men of ordinary firmness; still less is either of these material facts alleged to have occurred at all, or at a majority of the wards, nor is it stated that so many as a dozen men in the whole district approached the polls and offered to vote and were repelled, or attempted to approach, and were repelled. [The report closes as follows:]

Such a case, supported by such testimony, discredited by such circumstances, and failing in every material allegation, conducted by a political association in the name of the contestant, and inspired in great measure by personal malice against the sitting member, manifested by the libellous allegations of the petition, disproved by the testimony taken to support them, ought to be treated as a vexatious prosecution, and rebuked by the judgment of the House. The committee, therefore, report the following resolution:

Resolved, That the sitting member, Hon. H. Winter Davis, is entitled to his seat in this Congress.

The case was not taken up for consideration in the House.

THIRTY-SIXTH CONGRESS, SECOND SESSION.

PRESTON VS. HARRIS, of Maryland.

In this case there were sweeping allegations of fraud, but the evidence was held to be insufficient.

IN THE HOUSE OF REPRESENTATIVES,
FERRUARY 27, 1861.

Mr. MCKNIGHT, from the Committee of Elections, made the following report:

The allegations of the contestant are sweeping in their character, vague, general, and unsustained by the evidence in the case. Many of them are insufficient in law, even if supported by proof; and such of them as might be held valid in law are not shown to be true by the testimony. The case of the contestant, both upon the law and the testimony, fails to affect the right of the sitting member to his seat, which the committee unanimously decide him to be entitled to hold.

For greater facility of review, the notice of the contestant to the sitting member, setting forth these allegations, is subjoined:

PLEASANT PLAINS, Baltimore COUNTY, MD.,
November 30, 1859.

SIR: You are hereby notified that I intend to contest your election as a representative in Congress from the third congressional district of Maryland to the 36th Congress of the United States.

In said contest I shall rely upon the following grounds:

First. That the election alleged to have been held for a representative in Congress, on the first Wednesday of November, 1859, in that part of the city of Baltimore which constitutes a portion of the third congressional district of Maryland, is null and void, because the judges of election who professed to hold the same were not legally qualified to act, nor was said election held pursuant or according to the laws of the land.

Second. That if said election in said portion of said congressional district was held by judges legally qualified to act and hold the same, said election in the first, second, third,

fourth, fifth, sixth, and seventh wards of said city of Baltimore was illegally and improperly conducted; that within said seven wards and on said day, by reason of violence, and with the aid and use of fire-arms, deadly weapons, and instruments of torture, illegal combination, fraud, conspiracy, collusion, obstruction, intimidation, breach of the peace, bloodshed, and murder, a large number of legally qualified voters who desired to vote and would have voted for me were prevented from exercising the right of suffrage, while other persons not legally qualified to vote were permitted to vote and did vote for you; each or many of said last-mentioned persons voting for you in the same ward, or in different wards of the said seven wards, several times on said day.

Third. That many persons legally qualified to vote, and who, if left to the free and legal exercise of their rights, would have voted for me, were unlawfully seized, confined, and forcibly carried to the polls within the said seven wards, and there, under terror of death or great bodily harm, compelled, against their wills and conscientious sense of right, to vote, and did so vote for you.

Fourth. That for the purpose of carrying into effect, within the said seven wards, the outrages hereinbefore mentioned, tickets with your name thereon, peculiarly shaped and particularly marked, were prepared and used, thereby violating the spirit of the election laws, and utterly destroying the privilege of secret ballot.

Fifth. That in the portion of the third congressional district composed of the eighth ward of the city of Baltimore, and the eighth, ninth, tenth, eleventh, and twelfth election districts of Baltimore county, wherein, upon said first Wednesday of November, 1859, said election was conducted fairly, properly, and legally, I received of the whole of the votes cast for the place of representative in Congress a majority of one thousand four hundred and thirteen votes, in virtue of which majority I claim to represent the third congressional district of Maryland in the 36th Congress of the United States.

Sixth. That upon the said first Wednesday of November, 1859, I did receive within the third congressional district of Maryland a majority, or the largest number, of the whole of the legal votes cast for the place of representative in Congress from said district, and therefore claim to represent said district in the 36th Congress of the United States.

I am, sir, very respectfully, your obedient servant,

Hon. J. MORRISON HARRIS.

WM. P. PRESTON.

The first allegation, that the judges who conducted the election in that portion of the city forming part of the congressional district, and in which the great mass of the whole vote was polled, were not legally qualified to act, has no force whatever outside of its mere statement by the contestant in his notice of contest; for not only is it absolutely contradicted by the sitting member, but the contestant has not even attempted to sustain it by the production of a particle of proof. So also fails the subsequent allegation that the election was not held pursuant to the laws of the State.

Upon the allegation that such a condition of lawlessness and riot prevailed in the seven city wards that gave heavy majorities for the sitting member, the committee believe that while there is some conflict of testimony as to individual cases of violence and obstruction of voters, no such condition of things is anywhere shown to have existed as to justify the rejection of any of the sitting member's majorities in any of the specified wards, or at all to bring the case within the recognized ruling of the law of elections as to riots. It is proper to remark, in this connexion, that in the argument before the committee, while the sitting member expressed his great regret that anything objectionable should have marked the conduct of the election anywhere in his district, the contestant frankly and in the fullest manner exonerated Mr. Harris from any suspicion of encouragement or knowledge of any matters complained of.

The committee refer here to the law upon the subject of election riots, that the testimony in the case may be compared therewith. The only cases in which elections have been set aside for this cause are where there was riot at the polls, or such tumult as interfered with the election, and prevented an ascertainment of the result.

This rule is laid down in 2d Hayward on County Elections, pp. 580, 581, 582, 584. This was a case where a riot occurred at the polls, that led to the assault of the high sheriff in the execution of his duty, and was of such a character as led to the closing of the poll, and the election was set aside un this ground and the illegal conduct of the high sheriff.

Another case will be found in 1 Rowe on Elections, p. 334, where there was uch riot and tumult as to interrupt the election.

And another case, in Sheppard on Elections, pp. 105, 106, where it was held that if riots are carried to a great extent, accompanied with personal intimidation, so as to exclude the possibility of a fair exercise of the franchise, they will avoid the election; as where, in this case, the returning officer, being alarmed by the mob, offered to return whoever the sitting member chose to name; and he indicating himself, the sheriff returned him.

And it is further laid down in 4 Selden, pp. 93 and 94, that, "should a gang of rowdies gain possession of the ballot-box before or after the canvass of the votes, and destroy the whole or a portion of the ballots, or introduce others into the box surreptitiously, so as to render it impossible to ascertain the number of genuine ballots, the whole should be rejected."

Also, in 1 Peckwell, p. 77, which was a case of "the most enormous and unexampled riots;" and it was proved that the mayor was applied to to bring in the military to quell them, and the poll was stopped, and not resumed until quiet was restored. The same law is laid down in Heywood on Elections, pp. 580, 581, 582, 584; also in Rowe on Elections, p. 334; also in Sheppard on Elections, pp. 105 and 106; also in the celebrated Westminster cases and the Pontefract case.

Now, it is very clear, from the evidence, that no such condition of things existed in the case under consideration. At every one of the polling places in the district of the sitting member the election was uninterrupted; the votes were all quietly canvassed; the judges signed the returns; they were transmitted, as the law requires, to the governor of the State; the governor made proclamation of the result, and transmitted to the sitting member a certificate of his due election. He is, therefore, in his seat under all the observed solemnities of the laws of Maryland.

The proof as to the facts of the case is contained in the testimony of twentythree witnesses, thirteen of whom were produced on the part of the contestant, and ten on the part of the sitting member. The testimony of the contestant is very general and sweeping, instancing individual cases of assault and violence, but breaking down upon cross-examination. In the points most material to have been established by the contestant, viz: the exclusion, by violence, of a sufficient number of his friends shown to have been competent voters, and the deposit and counting, for the sitting member, of votes established to be illegal, the case fails utterly. An analysis of the whole testimony of the contestant does not show the exclusion of twenty legal voters who made reasonable efforts to vote; and not one dozen illegal votes are shown to have been cast and counted by the judges of election for the sitting member. Indeed, upon the point of illegal voting, the case is established in favor of the sitting member, not only by the inability of the contestant's own witnesses to prove the fact, and the general testimony against such an allegation by the witnesses of the sitting member, but by the direct testimony of the judges of election of both political parties.

*

The claim made by the contestant, that the returns from all the precincts in which the sitting member received majorities shall be rejected, and those alone held valid from the single city wards and three county precincts in which the contestant had a majority, would be a simple but not a justifiable mode of reaching a result. In fine, the committee do not find anything in the testimony or the law of the case to justify any other conclusion than that the sitting member was duly elected and properly holds his seat, which result they reach without difficulty.

The case was not reached in the House.

The constitution of Oregon has fixed beyond the control of its legislature the time for holding an election of representative in Congress. The contestant having been elected on the day fixed by the constitution, the committee held that he was entitled to the seat. House adopted the report.

IN THE HOUSE OF REPRESENTATIVES,

JULY 26, 1861.

The

Mr. DAWES, from the Committee of Elections, made the following report:

The questions raised before the committee by both contestant and sitting member, and, after a full discussion, submitted by each for their determination, have been entirely matters of law and not of fact.

The contestant rests his claim to the seat upon an election held in Oregon for representative in the 37th Congress on the first Monday in June, 1860, at which election it is admitted that he had a majority of all the votes cast.

The sitting member rests his claim to the seat upon two grounds: 1st. That there is no law in Oregon providing for the election of a representative in the present Congress, and, consequently, that the election on the first Monday of June, 1860, being without law, was void. 2d. That the right of the people of Oregon to representation in Congress is a constitutional right, of which they cannot be deprived by the neglect or refusal of the legislature of the State to provide by law for an election; and that the legal voters of the State, in the exercise of that right, did assemble on the sixth day of November last, the day of the presidential election, and cast their votes for him as their representative, and that he now holds his seat by virtue of said election.

It is very evident that whether the last position taken by the sitting member be correct or not, if he is mistaken in the first, there was in November last no opportunity for the exercise of that constitutional right on the part of the people of Oregon. If the election held on the first Monday of June, 1860, at which the contestant received a majority of the votes, was held in pursuance of law, then the door was closed, and he is entitled to the seat.

The committee are of opinion that the election held for representative in Congress on the first Monday in June, 1860, was held in pursuance of, and in conformity with, the constitution and laws of Oregon, and that, consequently, the contestant is entitled to the seat.

The people of the Territory of Oregon, on November 9, 1857, adopted a constitution and applied for admission into the Union. They were admitted as a State, under that constitution, on February 14, 1859. In that constitution it is provided, article 2, section 14, that "general elections shall be held on the first Monday of June, biennially;" and in article 18, the schedule, section 6:

"If this constitution shall be ratified, an election shall be held on the first Monday in June, 1858, for the election of members of the legislative assembly, a representative in Congress, and State and county officers; and the legislative assembly shall convene at the capital on the first Monday in July, 1858, and proceed to elect two senators in Congress, and make such further provisions as may be necessary to the complete organization of a State government."

The constitution having been, as before stated, adopted by the people in November, 1857, in pursuance of the foregoing provision, an election was held on the first Monday of June, 1858, at which a representative in Congress, the honorable Mr. Grover, was elected, and a legislative assembly, which met at the capital on the first Monday in July, 1858, and chose two United States senators, Messrs. Lane and Smith. On the admission of the State into the Union, February 14, 1859, Mr. Grover took his seat in the House of Representatives, and Messrs. Lane and Smith theirs in the Senate, by virtue of these elections. Mr. Grover's term of office expired on the 4th of March following.

By another provision of the same schedule, section 7, it is provided that “all laws in force in the Territory of Oregon when the constitution takes effect, and consistent therewith, shall continue in force until altered or repealed." It was enacted by the territorial legislature in 1845 that "a general election shall be held in the several election precincts in this Territory on the first Monday of June in each year, at which there shall be chosen so many of the following officers as are by law to be elected in each year; that is to say, a delegate to Congress, members of the territorial council and house of representatives, judges of probate, district attorneys," &c.

The committee are of opinion that the "general election" provided for in the constitution, to be held once in two vears, on the first Monday in June, was designed to embrace at least all such officers as were to be voted for by the people of the whole State, including a representative in Congress; and that, inasmuch as the same constitution provided for the first of those elections, including by name a representative in Congress, on the first Monday in June, 1858, an election should be held at the next general election in 1860 for a representative to the Congress next to be held after said election, that is, to the present Congress; and that the contestant, having at that time received a majority of the votes cast, is duly elected.

The committee would have had no difficulty in coming to this conclusion had it not been for the action of the legislature of Oregon upon this subject. Not withstanding this constitutional provision that general elections shall be held on the first Monday of June biennially, the legislature of Oregon seems to have believed that it had power to fix another time for the election of representative in Congress. On the 1st day of June, 1859, a law was enacted providing for the election of a representative in Congress on the 27th day of June, 1859. By virtue of an election on that day, the honorable Mr. Stout received a certificate of election to the 36th Congress, and served during the term as such. At the session of the legislature in September last both branches acted upon the idea that notwithstanding this provision in the constitution of Oregon, the legislature had the power to fix another day for the election of a representative in Congress. A bill passed each branch fixing the day of the presidential election for an election of a representative in Congress once in four years, and for such election at the general election in the alternate years. But the two branches of the legisla ture differed upon the question whether it should apply to the election of a representative to the present Congress, and so the bill never became a law. Various reasons have been given for this action of the legislature, about which the contestant and sitting member widely differ. The committee have not deemed it necessary to determine what those reasons are, for, with all due respect to the opinions of the gentlemen composing that legislature, they are of opinion that this house must nevertheless be the final judge of the meaning of this clause