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depositions were to be used and read as evidence before the House of Representatives of the United States in the case in which he contested his election. Various other similar notices were subsequently served on the sitting member for taking depositions at other times and places, and similar notices were also served on the petitioner by the sitting member for taking depositions in his behalf. At the times and places thus notified the parties or their agents respectively met, and the depositions thus taken have been sent on to the Speaker of the House, and have been delivered over to the committee.

The petitioner and sitting member appeared before the committee on the 15th day of December last, and an objection having been made by the sitting member to the said depositions as inadmissible evidence of the facts stated in them, that question was taken up and considered by the committee, after hearing the arguments of the sitting member and the petitioner thereon. The committee was of opinion that the depositions had been taken conformably to the laws of North Carolina upon the subject of contested elections; and there being no law of Congress on the subject, and the usage being well established to allow depositions to be read which had been taken and sworn to according to the laws of the State where the election had been held, and it appearing reasonable that depositions thus taken on similar notices from both parties, and in the presence (with one exception) of both parties or their agents, ought to be held sufficient, decided that they should be received.

This decision of the committee was made known to the parties in the controversy on the 14th day of January last, and on the day following the sitting member made an application to be allowed further time, to the last day of February then next, to take additional testimony on his part. See papers marked J. G. This was objected to by the petitioner, on the grounds stated in the paper, dated 15th January, marked D. N.

The committee, after hearing the arguments of the sitting member and the petitioner, rejected this application. They could find no precedent in which an application of a similar kind, even if made at an earlier period, had been granted, but several in which, notwithstanding the existence of more favorable circumstances, such applications had been rejected, both by Committees of Election and by the House. Without very strong reasons to show the necessity of further proof, (which the committee did not see in this case,) they considered that the right of contesting a seat in Congress would be useless and nugatory, if such postponements and protracted appointments for taking additional evidence after the meeting of Congress should be allowed, when the parties had already had the same time to take their depositions, and, as appeared to the committee, a sufficient time. After this determination, the committee proceeded to examine the testimony, to hear the objections and statements of the petitioner and sitting member, and to determine from the evidence what votes should be taken from or added to their polls, as returned respectively. Several legal questions, as to the competency of certain parts of the evidence, arose in this investigation.

The sitting member objected to a number of the petitioner's depositions which contained declarations proved by the witnesses to have been inade after the election by the voters therein named, of their having voted at the same election for the sitting member. He contended that these, being the declarations of persons not on oath, were inadmissible. It was contended by the petitioner that, as the law of North Carolina (Revised Code, 922, 1800, ch. 557) requires voting by ballot, and enacts that the voters shall not be compellable to give evidence for whom they voted, there could be no better evidence, and no other evidence in most cases, than the voter's declarations; that the voter's testimony being excluded, he ought to be allowed to produce the next best evidence in his power. The petitioner claimed, under this species of evidence, to deduct from the poll

the sitting member thirty-five votes which were thus proved to have

been given for him, and which he contended the depositions showed were illegal votes, the voters not possessing the requisite qualifications. The committee, however, deemed this species of evidence inadmissible, and did not, therefore, investigate the votes of the sitting member objected to under this head. This decision confined the inquiry to cases of bad or illegal votes alleged to be found on the polls of the parties respectively, as proved by other evidence than the declarations of the voters. After a careful examination of the proofs on both sides, the committee find nineteen votes (see list marked A) which they consider bad, and which are sufficiently proved to have been given for the sitting member. That number, therefore, ought to be deducted from his poll. They also find eight bad votes, proved by the same sort of evidence, to have been given for the petitioner, and which are to be taken from his poll; leaving the difference eleven, and exceeding the sitting member's majority of seven, as returned, by four votes. To these the committee have thought proper to add three votes as given for the petitioner at Henderson precinct, in Buncombe county, and stricken from his poll by the judges at Asheville on comparing the polls the day after the election.

The law of North Carolina gives no power to the judges at one place of election to strike off votes or in any manner alter the return of the judges of any other place of election; nor could the judges at the Henderson precinct, after taking the votes as legal, decide themselves, or authorize the judges at Asheville to decide, that they were illegal. Having been received at the time of the election, the petitioner is entitled to them, unless they are proven to be bad; no such proof was presented. This makes the petitioner's majority seven. To this the committee have added five votes, (see list A,) as having been legally offered for the petitioner, and illegally refused; thus making his majority twelve. The committee return also herewith a list of the votes contended by the petitioner to have been illegally given to the sitting member, under that species of evidence rejected by the committee, of declarations proved to have been made by the voters, (marked B.) so that the House, if they should deem such evidence improperly rejected by the committee, may, by resorting to the depositions, ascertain the sufficiency of the proof. They also return, filed herewith, papers marked C and D, showing the objections of petitioner, and the votes claimed by him; said papers, and paper B, being presented by him. It appears from the evidence, that at Franklin, in Macon county, some ballots for members of Congress were put by mistake in the boxes for receiving votes for the State legislature, and some ballots for members of the State legislature into the box for members of Congress; the election for both the State legislature and Congress being held at the same time and place, the boxes being in the same room for receiving the ballots, and about seven or eight feet apart.

The testimony of Robert Hall, one of the judges, is, that he and the other judges, hearing of votes being put in the wrong boxes-that is, some in the legislative boxes that were intended for members of Congress, and vice versa― had them changed. He does not state how many ballots were thus changed, nor who they were for. Another witness, James W. Killian, says he saw the exchange of tickets at the close of the election, and that five or six for Newland were taken from the legislative box, and perhaps some for Graham, he does not recollect; and some were taken from the Congress box, in like manner, and transferred to the legislative box. It appears, then, that the judges of election corrected what they were all satisfied was a mistake, by transferring the ballots into the right boxes from those in which they had been by mistake deposited. Robert Hall further states, that it is customary to correct such mistakes; and it is easy to conceive that such mistakes might, under such circumstances, be committed, which the judges, before counting the ballots, might correct. There is no positive proof to show how many ballots were thus exchanged, nor who they were all for. Killian says there were five or six for Newland, and perhaps

some for Graham, he does not recollect. It would therefore be difficult, in the opinion of the committee, if not impossible, from the testimony, to determine accurately how many of the five or six proven to have been for the petitioner should be taken from his poll, if it should be thought that any should be deducted, as it is left quite uncertain whether there were not some for the sitting member. The judges no doubt acted in good faith; the mistake appears to have been corrected by them on the spot, and with every means of ascertaining the fact of the mistake, and without objection, and in a manner usual, as stated by Hall, on such occasions. If the House should think it right, under these circumstances, to interfere with their decision in correcting this mistake, the five or six votes thus given by the judges to petitioner can be deducted from the amount of his majority before mentioned. The committee found, on referring to the case of Washburn and Ripley, (Contested Elections, page 679,) that the House had refused to interfere with a decision of the judges of election in that case, who declined correcting the mistakes made in that election, by depositing the ballots in the wrong boxes. The judges of this election in Maine, it seems from this case, did not consider it to be in their power to correct such a mistake. They may have considered that they had no means of ascertaining whether it was a mistake or not. It appears, from that case, that the ballots are put into the boxes by the voters themselves; and it would seem, from several of the depositions in this case, that the ballots were usually handed to one of the judges or inspectors of the election, and by him deposited in the ballot-box, as the law of North Carolina requires. In this case, then, the mistake having been made by one of the judges, and not by the voter, who had done everything in his power towards the fair exercise of his privilege, the judges have considered it their duty to correct their own mistake, and give the voter his vote; and as they have considered that they had the means of fairly correcting the mistake, they proceeded to do so openly, and without objections of the friends of either of the candidates. Under such circumstances, the committee leave it to the House to say whether their proceeding should not be respected, and their return allowed to stand as they have placed it. Several objections were made by each of the parties to certain alleged irregularities in the proceedings of the officers by whom the elections were held at several places of voting in the said district. As, however, the committee entertain no doubt as to the fairness of the elections, and the integrity and impartiality of the officers, and as no objection appears to have been made at the time to the particular proceeding or formality which is now objected to, they have considered it unnecessary to say anything further as to those objections, than that the proceeding complained of might be deemed to have been waived or assented to, and are not, in the judgment of the committee, sufficient to affect the validity of the election, or to change the result to which the committee have arrived. On the whole, the committee submit the following resolutions : 1. That James Graham is not entitled to a seat in this house.

2. That David Newland is entitled to a seat in this house.

In the House a motion was made to give the sitting member further time to take testimony; but it was lost.

Mr. RENCHER, of North Carolina, moved the subjoined resolutions:

1. Resolved, That the depositions which have been communicated to the House by the Speaker, and laid on the table since the report of the Committee of Elections was made, whenever taken upon due notice, will be received by the House as testimony in this case. 2. Resolved, That the five votes taken from the commons box at the Franklin precinct, in Buncombe county, and counted for the petitioner, ought not to be counted.

3. Resolved, That the three votes which were stricken from the petitioner's roll by the judges at Asheville, in Buncombe county, because it appeared by the return of the judges from the Henderson precinct that those of the votes given the petitioner were given by voters living

in Yancey county, and which have now been added to his poll by the committee, ought not to be allowed.

4. Resolved, That two votes (to wit, Robert Lankford and George Barkley) stricken from the roll of the sitting member by the committee, on the ground that they voted out of their proper county, ought to be restored, because there is no proof that they lived out of the county in which they voted.

5. Resolved, That two votes (to wit, Moses Pace and Andrew Morrison) which were proven by parol testimony to have been given for James Graham, out of the county in which they reside, and on that account have been stricken from his poll by the committee, ought to be restored, because it does not appear from the poll-books themselves that either of these men voted at the election.

6. Resolved, That William H. Milton ought to be stricken from the poll of the petitioner, because it appears that he had not paid a public tax.

7. Resolved, That the five votes found on page 6 of the report, which have been counted for the petitioner, but which were not given in at the polls, ought not to be counted.

8. Resolved, That there is no evidence that these men were qualified to vote, not having lived in the county where they offered to vote twelve months immediately preceding the day of election, as required by the constitution of North Carolina, or that they tendered their votes as required by the law of that State.

They were decided by the Speaker to be out of order, and the House was brought to a direct vote upon the first resolution of the committee-that Mr Graham, the sitting member, was not entitled to his seat. The vote stood, yeas 114, nays 87. Upon the second resolution, that Mr. Newland was entitled to the seat, the vote stood, yeas 99, nays 100. The seat was then declared vacant.

NOTE. The debate upon this case covered a period of several months, and was, for the most part, upon preliminary questions. Mr. Newland's speech will be found on page 240, volume 3, Congressional Globe; Mr. Graham's on pages 240 and 241. The running debate upon the case occupies from page 240 to 272, volume 3, Congressional Globe.

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Messrs. RIVES, of Virginia, and SWEARINGEN, of Ohio, in place of KILGORE and PENNYBACKER.

Messrs. GHOLSON and CLAIBORNE, of Mississippi.

The President having called an extra session of Congress before the regular congressional election in Mississippi, the governor of that State issued his proclamation for a special election of members for the called session only. The committee and the House held that the members elected-Messrs. Gholson and Claiborne-were entitled to seats during the entire 25th Congress.

At the second session two contestants appeared with credentials, showing that they were elected at the regular November election in Mississippi. The House rescinded its action during the first session, and vacated the seats.

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