duties the presumption of law that he discharges his duty faithfully; but here a presumption is set up against the aldermen-not against any one alderman in particular, but against the whole community-that because. forsooth, there is a majority for John Kline of eight votes, out of some eighteen thousand cast at the election, somebody must have tampered with the ballot-boxes; that some fraud must have been perpetrated—a presumption that the parties have been guilty of a crime which, by the act of the legislature of Pennsylvania, sends them to the penitentiary for not less than a year.

The House adopted the resolutions reported by the committee, March 4, 1862-yeas 105, nays 13.

NOTE. The debate in this case is reported in volume 47 Congressional Globe. For the report: Mr. Dawes, page 1054; Mr. Kelley, page 1061. Against the report: Mr. Johnson, page 1056; Mr. Wright, page 1058.

THIRTY-SEVENTH CONGRESS, SECOND SESSION.

BEACH, of Virginia.

A State legislature and a constitutional convention being in existence at the same time, the convention cannot assume legislative functions in the presence of the legislature and fix the time and place for a congressional election.

The provisions of the law of Virginia not having been complied with, and a majority of the voters in the district having had no opportunity to participate in the election, it was treated as a nullity.

IN THE HOUSE OF REPRESENTATIVES,
MARCH 3, 1862.

Mr. DAWES, from the Committee of Elections, made the following report: That they have had the subject-matter of said memorial under consideration, and find the following facts: This district is composed of the counties of Spottsylvania, Alexandria, Fairfax, Fauquier, Prince William, Rappahannock, Culpeper, Stafford, and King George, and the election, under which Mr. Beach claims the seat, was held on the 24th of October last, in pursuance of a proclamation of Governor Pierpoint of October 12, 1861. The memorial may be found in Mis. Doc. No. 26, of the present session, and the following is a copy of the credentials of the memorialist:

The undersigned, conductor and commissioners of election, having been duly appointed and sworn, do hereby certify that they acted as such conductor and commissioners of election; that said election was held on the 24th day of October, 1861, at the court-house in Alexandria county, in the seventh congressional district of Virginia, pursuant to law, and that the following is a true statement of the vote as exhibited by the poll-book, viz: For member of Congress, Samuel Ferguson Beach received one hundred and thirty-eight votes, and Charles B. Shirley, for the same office, received eleven votes; and we further certify that there were no other polls of election held at any other precinct in said county of Alexandria, nor in any other of the counties of this congressional district, as far as we can learn and believe, and that all the other counties of this congressional district are and were, at the time of said election, included within the lines of the rebel army; and we, therefore, further certify that said Samuel Ferguson Beach was, by a majority of all the votes polled in this congressional district, duly elected a member of Congress of the United States. Given under our hands this first day of November, 1861.

His Excellency FRANCIS H. PIERPOINT,

Governor of the State of Virginia

WALTER L. PENN,

Conductor.

JAMES VANSANT,
T. A. STOUTENBURGH,

Commissioners.

This election is based upon the same authority and was conducted in the same manner as that of Joseph Segar, who claimed a seat in this house as the representative from the first district in Virginia. The views and conclusions of the committee in that case having been submitted to the House, (Report No. 12 of the present session,) and received its sanction, form a precedent in this case, and will therefore be embodied in this report as far as applicable.

A convention assembled at Wheeling, in the State of Virginia, on the 11th of June last, in which were represented, it is believed, thirty-nine counties of the State, situate in what is known as Western Virginia. This convention

adopted on the 19th of June "an ordinance for the reorganization of the State government," after having declared that, because of the treasonable practices and purposes of the State convention lately held in Richmond, and of the executive of the State in connexion therewith, "the offices of all who adhere to the said convention and executive, whether legislative, executive, or judicial, are vacated." By the same ordinance a legislature, or general assembly, for the State of Virginia was created, and required to "assemble in the city of Wheeling on the first day of July, and proceed to organize themselves as prescribed by existing laws in their respective branches." Said convention subsequently elected a governor for the State of Virginia, who still holds the office thus conferred upon him.

The legislature thus created assembled as required, and passed many enactments for the whole State of Virginia, elected two United States senators, who were admitted to seats in the Senate, and assumed all the functions of the general assembly of Virginia under its pre-existing constitution and laws. The convention which created and set in motion this new government did not, however, dissolve itself upon the assumption of the several functions of government by the executive officers and general assembly which, in the exercise of provisional powers, it had itself brought into being, but continued to hold its meetings after the assembling of the legislature, and to share with it in ordinary legislation for the whole State. The legislature was in session till the 24th of July, and how much longer the committee are not informed. The convention was in session on the 20th of August, and on that day passed an ordinance providing for the election of representatives in Congress in each district where, from any cause, such election was not held on the fourth Thursday in May last, the day provided by law for such election, and also "in the eleventh district, where a vacancy now exists, an election for such representative shall be held on the fourth Tuesday in October next, which shall be conducted, and the result ascertained, declared, and certified in the manner directed in the second edition of the Code of Virginia." The governor thereupon, on the 12th day of October, issued the following proclamation:

THE COMMONWEALTH OF VIRGINIA.

EXECUTIVE DEPARTMENT,
Wheeling, October 12, 1861.

To the people of Virginia:

Whereas several of the congressional districts of this State are unrepresented in the House of Representatives in the Congress of the United States, by reason of failure to elect on the fourth Thursday in May last, caused by armed men in rebellion against the Constitution and laws of the United States and of this State; and it being the right of the loyal inhabitants in each district to be represented in said House by a representative of their own appointing, the convention of Virginia, on the 20th day of August, 1861, passed an ordinance directing an election to be held on the fourth Thursday in October instant, (24th,) in every district of the State so unrepresented and where vacancies exist. It is further made the law, by virtue of the ordinance aforesaid, that any person who is prevented from attending such election, by reason of the occupation of his own county by armed men in hostility to the government, hat such voter may vote anywhere in his congressional district. It is further ordained that

the election shall be conducted, and the result ascertained, declared, and certified, in the manner directed in the Code of Virginia of the edition of 1860. By the 11th section of chapter 7th of that code any two freeholders may hold an election directed by law at any place of voting, if no commissioner to superintend the same appears and is willing to act, or if no commissioners have been appointed to hold the election.

Now, therefore, in consideration of the premises, I, Francis H. Pierpoint, governor of the Commonwealth of Virginia, do hereby entreat the loyal voters of this State to hold elections in their several districts on the day above mentioned, to the end that the people may be represented, the principle of representative government sustained, and the State have her due weight in the national legislature.

F. H. PIERPOINT.

This proclamation applies in terms to districts unrepresented "by reason of failure to elect on the fourth Thursday of May last." There was, however, at the time this election was held, a gentleman, Hon. C. H. Upton, representing this district in the present Congress under an alleged election upon said fourth Thursday of May last. But as the House has since declared Mr. Upton not entitled to the seat, it may, with propriety, be held to come within the terms of the proclamation.

It is not claimed by the memorialist that any poll was opened at any other precinct or voting place in the whole district, except in the city of Alexandria ; but he asserts that the ballot-box knows no quorum, and that the number of votes cast is not a legitimate inquiry beyond the necessity of ascertaining for whom a majority was given. If the votes are cast according to law, and legal votes, then it matters not whether they be few or many. The committee have been led to apply the rule, thus set up by the claimant, as the only test. Were the votes cast at this election so cast in conformity to the existing laws of the State of Virginia?

The whole authority for this election is the ordinance of the Wheeling convention passed August 20. Assuming that the proceedings of that convention, and of the legislature and executive created by it, have ripened into a State government, legal in all respects, still the question arises, was it one of the functions of that convention to provide for the time, place, and manner of electing representatives in Congress, especially after the legislature had assembled? The purpose of that convention was the creation of a new State government. The only basis upon which it rests is necessity.

A new government must begin somewhere, and there must be somebody to make it. As necessity was the foundation, so also it was the limit of the power called into being for the sole purpose of inaugurating a new government. It could do anything necessary to carry out that purpose, and when that was done it could do no more. Its functions ceased the moment the new government took on form and life. The two cannot, in the nature of things, exist and move pari passu. Now, long before this ordinance had passed the convention, there was in existence a governor and a legislature, having all the powers that a governor and legislature could have in Virginia-that is, all the powers which the constitution of Virginia clothes a governor and legislature with, not in conflict with the Constitution of the United States.

Now, this latter instrument provides (art. 1, sec. 4) that "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislatures thereof." It is a legislative act. It is a law. If the time had been fixed in the constitution of the State, recognized and acquiesced in by the legislature, it may be said to be the act of the lawmaking power-a legislative act. But this time and manner were not fixed in the organic act, nor by the legislature, but by the convention assuming legislative functions in the presence of the legislature itself.

Again: the ordinance itself proposes to conform this election to the code of Virginia. It shall be conducted, and the result ascertained, declared, and certified in the manner directed in the second edition of the Code of Virginia."

Has the election under consideration been conducted in all respects according to the requirements of the Virginia code? Title 3, chapter 7, section 14 of thai code provides for elections to fill vacancies in Congress, and enacts that they "shall be superintended and held by the same officers, under the same penalties, and subject to the same regulations as are prescribed for the general elections." Section 16 of the same chapter provides that "a writ of election shall be directed to the sheriff or sergeant of the county or corporation for which the election is to be held; or if the election is to be held for an election district, or to fill a vacancy in the senate or in Congress, to the several sheriffs and sergeants of the counties and corporations which, or any parts of which, are included in the district. It shall prescribe the day of election, (to be the same throughout the district,) and may fix a day on which the officers conducting the election are to meet to make returns, not later than that fixed by law in the case of a regular election."

Now in the present case there is nothing which answers to a writ of election. The only paper originating this election is the proclamation of the governor of October 12, already copied into this report. This proclamation can be considered in no sense a writ of election. It commands nobody-no authorized officer to hold an election. It only "entreats the loyal voters" to hold an election, and is addressed not "to sheriffs," &c., but "to the people of Virginia." This is no technical defect. The 17th section of the same chapter of the Code provides something for the several officers to whom the writ is directed to do before the election can be held. That section is in these words:

Each officer to whom a writ of election is directed shall at least ten days before such election give notice thereof, and of the time of the election, by advertisement at each place of voting in his county or corporation.

The reason of this enactment is manifest. The law, which all are presumed to know, fixes the time of a general election, but does not fix the time of holding a special election. It is done by the governor in his "writ of election," directed to the sheriff. This provision of law is necessary to insure notoriety, and it is made the duty of the sheriff, to whom the writ is directed, to do it in a particular manner. Now, this proclamation, if a writ, is directed to no sheriff. It commands nobody to give the notice or to open the polls required by law. It only "entreats the loyal voters of this State to hold elections in their several districts on the day above mentioned."

Not only was there no poll opened in any precinct in the district, except in the city of Alexandria, but no notice of this election was ever given, by advertisement or otherwise, at any other precinct. Indeed, all attempt at giving notice or opening a poll at any other precinct was an impossibility. The whole district was in the possession of armed men, with the exception of the city of Alexandria and a very small portion of the district in the immediate vicinity of the Potomac. All the rest of the district was in the armed occupation of the rebels, and all lawful authority subverted. To advertise or open a poll would have surely secured an arrest for treason by the rebels, and an attempt to cast a vote would have incurred the same penalty. That small portion of the district not in possession of the rebels at that time was occupied by our own troops and subject to the law of the camp alone. Outside of the city of Alexandria there was not a single officer of the law to discharge any of the functions of his office. There was, then, a total failure to comply with these essential provisions of the law of Virginia. The same Code requires (title 3, chapter 8, section 3) the officers conducting this election to meet at the court-house, in the county of Alexandria, on the fifteenth day thereafter, to compare the returns and declare elected the person having the greatest number of votes in the whole district. This has never been done, and of what was done in the whole district the committee have no official evidence, and only know there were no other votes by knowing that voting elsewhere was an impossibility. By the eleventh section of the same chapter

return is to be made to the governor, and he is to make proclamation of the person elected within sixty days. There has been no such proclamation in this case. It is apparent, from what has been already said, that if the claim of the memorialist rests exclusively upon a strict conformity with all the provisions of law, it cannot be maintained.

But the committee do not desire to rest their conclusions upon so narrow a basis. If the Union voters of the district had had an opportunity to choose a representative-if there had been no armed occupation of the district by rebels, so that polls could have been opened at the various voting places in the district, and all who desired could have deposited their ballots, and had done so in conformity with the provisions of law, so far as the disturbed and abnormal condition of things would permit, the committee would have sought some way to give effect to such election. But enough of the facts surrounding this election have already been stated to show that such is not the case. There was but one single poll in the whole district opened, and but one hundred and forty-nine votes cast. The reason why there were no other polls opened or more votes cast cannot be better expressed than by the three freeholders themselves who certify to this election. This is their language:

And we further certify that there were no other polls of election held at any other precinct in said county of Alexandria, nor in any other of the counties of this congressional district, as far as we can learn and believe; and that all the other counties of this congressional district are, and were at the time of said election, included within the lines of the rebel army.

This state of things is no fault of the memorialist or the Union voters of the district; but it did exist on the day of this election. How can it be made to appear, then, that the memorialist is the choice of the district, or that if an opportunity had existed an overwhelming majority of votes would not have been cast against him? In what sense can it be said that those who did not vote are to be presumed to acquiesce, when they neither had the opportunity to vote, nor the knowledge that voting was going on? Acquiescence presumes liberty to protest. In this instance that liberty did not exist.

In conclusion, the committee are, for the foregoing reasons, of opinion that the memorialist was not, by virtue of the votes cast for him in the city of Alexandria on the 24th of October last, elected a representative to this Congress from the seventh district in Virginia, and they accordingly recommend the adoption of the following resolution:

Resolved, That S. Ferguson Beach is not entitled to a seat in this house as a representative in the 37th Congress from the seventh congressional district in Virginia. Agreed to without debate or division.

THIRTY-SEVENTH CONGRESS, SECOND SESSION.

BYINGTON vs. VANDEVER, of Iowa.

Where a member of Congress entered the military service of the government as a colonel of volunteers, held by the committee that he was not entitled to a seat in the House after he was mustered into the service.

IN THE HOUSE OF REPRESENTATIVES,

APRIL 11, 1862.

Mr. G. H. BROWNE, from the Committee of Elections, made the following

report:

Mr. Vandever claimed to be a member of this Congress by virtue of an election held in his district on the day of the presidential election A. D. 1860, and was admitted under that claim.