lative authority and interests would be the most likely to suffer, and be distegarded. To say nothing of the stronger impulses of gallantry, which would be so likely to lead the colonel to the field where glory was to be won, the contest would be a very unequal one. The enforcing penalties greatly differ. The House would but fine the absentee, or at most censure him for contempt of its authority; a court-martial might order him to be shot Here was a difficulty not to be possibly reconciled upon any supposition that the two offices-the two services, military and civil-are at all compatible. But Mr. S. had said he would not argue the disqualification of Colonel Yell to hold his seat at this time. He would be glad if that question, as well as the right of Mr. Newton to take the seat, could at once be settled by a direct vote of the House. It was a question which involved the independence of Congress-its independence of executive encroachment or intrusion. He was sorry that the Committee of Elections. to which his resolution, suggested by Colonel Baker's case, had referred the inquiry, had not yet found time to report. He had hoped they would do so before this case from Arkansas, which was also anticipated at the time of offering that resolution, had come up. He hoped they would yet report. But let all that pass now. The immediate question to be resolved is, the right of Mr. Newton to take his seat at this time, upon the credentials which he has presented. He thought there could be no reasonable doubt of that right-certainly none, if respect was to be paid to the uniform practice of the House in all time heretofore. Mr. S. agreed with the honorable gentleman from South Carolina, [Mr. Woodward,] that while this house was the exclusive judge, under the Constitution, of "the election returns and qualifications" of its own members, there was a difference between that and the judgment as to the existence of a vacancy. In this instance there was no question either as to the election, the return, or the qualifications of Mr. Newton. Those points were all undisputed. But was there a vacancy in the representation of his State to be filled! Now, he could not agree with the gentleman from South Carolina, that this house had no judgment at all in that matter to be exercised. There seemed to him (Mr. S.) to be a concurrent power of deciding that point in the State authorities and in the House. He thought that while the authorities of a State were to determine upon ordering an election to fill a vacancy in their representation here, and thus must necessarily judge as to the existence of that vacancy, this house also was, to some extent, to judge whether there was a vacant seat to be filled. Resignations were seldom, if ever, announced to the House, but were made to the governors of the States; and so it was most likely to be, whenever vacancies occurred from any other cause. The House never certified vacancies to the States in whose representation here they occurred. It was not necessary, any more than it was usual, to do so. And it was never surely intended, or to be apprehended, that upon such failure to certify the State or district should go unrepresented. If that were so, it would be in the power of a member, by leaving the country, or possibly by expatriating himself, swearing allegiance to a foreign government, or otherwise disqualifying himself, neglecting or refusing to resign, or to even give notice to the House or its Speaker, to deprive his constituents of all benetit of representation. The States, and State authorities, and people, must be expected to look after their own right of representation, and keep it full. For this purpose they must look to vacancies when they should happen in that representation, and hold elections to supply them. They might be trusted, they always had been trusted to do this. And yet the House must exercise, to some extent, a judgment also in the matter. In this view he saw no difficulty in the objection which troubled some gentlemen, that if left so far to the States or State authorities to judge, two members or more might be sent to fill the same seat. Not so; or if such a case did arise, it could present no practical difficulty. Take the instance now in hand, to illustrate. The State of Arkansas constitutes cne congressional district. Mr. Yell (now Colonel Yell) was elected and sent here to represent the people of that State at the commencement of this Congress last session. Suppose he were here in his seat yet, instead of that seat being empty, as it is, and Mr. Newton were to come with his certificate from the governor of Arkansas, accrediting him as a successor to fill the unexpired term of Mr. Yell. The seat being occupied, the House would take notice of that fact. Here, then, would be two gentlemen, each with credentials from the proper authority, each of the certificates good upon its face, and containing prima facie evidence of the right to the seat. The House must determine between these proofs. The presumption would clearly be in favor of the sitting member-the occupying claimant-and the oldest title; the titlepapers being otherwise the same and of equal validity. It was upon such superior presumption that the House was continually acting. The first intimation-at least, the first official intimation-the first information upon the record which this house generally had of a vacancy, was the appearance of a successor to fill the unexpired term of the former incumbent. It was so always in case of a death of a member during the recess. Take the case occasioned in this Congress by the death of a member from Alabama, [Mr. McConnell.] His successor [Mr. Bowdon] appeared here, at the first of this session, with credentials just like those of Mr. Newton, and was permitted, as he should have been, and as a matter of course, to take his seat; and some days afterward, according to usual custom and courtesy, that gentleman made the first official announcement of the death of his predecessor, which had made the vacancy for him to fill. Another honorable gentleman from Alabama, [Mr. Cottrell, ] he thought, had been peculiarly unfortunate in putting himse award as an objector to Mr. Newton's admission. That gentleman [Mr. Cottrell] CONTESTED ELECTION CASES IN CONGRESS. had made as able and ingenious an argument against the right of the member elect as the case was capable of; but did it not occur to him that his own case was an instance directly against him? He [Mr. Cottrell] had been elected to fill a vacancy occurring in this very Congress by the resignation of Mr. Yancey; and the first official notice of that resignation, and the only notice, was contained in the certificate from the governor of his State, which the gentleman himself presented, and upon which, without a question, he had been allowed to fill the vacant seat. But the gentleman, [Mr. Cottrell, ] upon his (Mr. S.) suggesting this to him while he was speaking, saw that the authority of his own case was clearly against him, and sought to get rid of it by replying, that if he was improperly admitted, it was no reason why Mr. Newton should be. Two wrongs," he said, "could never make a right." But (said Mr. S.) though two wrongs nor any number of wrongs can ever make a right, yet surely a great many right decisions, uniformly made and concurred in through a long succession of yearsindeed, ever since the organization of the government and Congress-ought to be considered as settling the practice and the law, if ever any question could be settled. Such was the action of the House in at least two other instances at this very session of Congress. He alluded to the cases of Colonel Price, of Missouri, and Colonel Davis, of Mississippi, whose successors had been admitted to their seats here without question, and only upon the proof of vacancy contained in the fact of their own election, and in the credentials which they had produced. Cases might be multiplied without end. The prima facie case in such instances had always been considered sufficient and conclusive as to the right to take the seat, whatever might follow afterwards upon the question as to whether a vacancy had existed to be filled or not. The State determines that for itself, and sends the successor, and the House acts upon the weight of presumption which then arises in favor of the member elect. The Now, what were the presumptions in this case? Here was Mr. Newton, presenting himself with proper and authentic credentials, in due form, reciting the vacancy which he was elected to fill. It was all the proof we wanted-all the case he needed to make out. proof and presumption of vacancy was all in his favor; and there was no sufficient preBut that was all. The sumption to oppose against that certificate and his right derived under it. It was true the House knew that the seat had formerly been held by Mr. Yell. House now knew that the seat was in fact empty; that Mr. Yell had left his place in fact before the end of last session, some time in June or July, perhaps, and had never occupied the seat since. It happened to be notorious, also, whether we had or had not yet official knowledge of the fact, that he had become a colonel in the service of the government, and was now with the army in Mexico. Moreover, it was also the fact, he believed, in the case of Colonel Price, that he had settled with the Sergeant-at-arms for his pay as a member of Congress up to the day of his leaving here last session, and had never claimed a dollar since. He had not, like some other gentleman, in like case, continued to draw his pay as a member after the time of his leaving Washington. But it was unnecessary to multiply these In the absence of Colonel Yell, the certificate of the presumptions in favor of the vacancy. governor of Arkansas, presented by Mr. Newton, was enough, and was to be taken as evidence of the fact. These other circumstances were only cumulative proof for the House to consider, if necessary, corroborating the fact established by the production of these last credentials. Mr. S. concluded by expressing a hope that the House would not, by refusing Mr. Newton his seat, or to be admitted to be sworn in immediately, do anything that might look like a disposition to disturb a wholesome, reasonable, clear, and long-settled practice of this house. [It now appeared by an official statement, made in reply to a call of the House by the Adjutant General, of the names of members of Congress who had received commissions and been mustered into the service of the United States, that Archibald Yell was among the number. As soon as this document was read, members withdrew all opposition.] The previous question was moved by Mr. Norris and seconded. The main question was ordered. The amendment of Mr. Thomasson was agreed to; and thus amended, the resolution was adopted. Mr. Newton was then qualified and took his seat. L. B. CHASE, Tennessee. N. BOYDEN, North Carolina. In the second session Mr. INGE, of Alabama, and Mr. WILLIAMS, of Maine were added to the above. H. Mis. Doc. 57-7 MONROE US. JACKSON, of New York. Where paupers voted for the sitting member, they having been admitted to the almshouse from another congressional district, the committee held that the previous residence of such paupers was their legal residence. IN THE HOUSE OF REPRESENTATIVES, MARCH 25, 1848. The Committee of Elections submitted a report to the House, from which the main facts are quoted below. The following facts are admitted by the parties in this case, to wit: First. That the sixth congressional district of the State of New York is composed of the following wards in the city of New York, divided, respectively, into election districts, to wit: The eleventh ward divided into six districts. Second. That an election for representative in Congress for said district was held on the 3d day of November, 1846, at which the sitting member, David S Jekson, and the contestant, James Monroe, were opposing candidates. Third. That at said election, and from the returns of the several election districts of the several wards, David S. Jackson received a majority of votes over James Monroe of one hundred and forty-three. Fourth. That the number of votes returned from the third election district of the eighteenth ward was as follows: For the sitting member, four hundred and sixteen, and for the contestant, one hundred and eighty-one. Fifth. That the sitting member was, at the time of such election, president of the board of aldermen of the city of New York, and that the officers and keepers of the almshouse and city prison are appointed by the authorities of said city. Sixth. That David S. Jackson was, at such election, the regular candidate of the democratic party, and James Monroe the regular candidate of the whig party. Seventh. That Norman B. Smith was also a candidate of the same party that nominated David S. Jackson for a seat in the assembly of the State o New York, and was also an officer in the almshouse of the city. Eighth. That Moses S. Jackson, a brother of the sitting member, was, at the time of such election, an assistant alderman of the said eighteenth ward. These are the material admissions of the parties, which become important in a subsequent part of this case. In addition, the contestant alleges: First. That one hundred and sixty-three paupers, and upwards, from the almshouse and hospital, in the eighteenth ward in the city of New York, voted at the third election district of said eighteenth ward for the sitting member, which paupers had not been admitted to said almshouse from the said third district of said eighteenth ward. This is denied by the sitting member, who alleges that he is informed, and believes, that about one hundred electors, then "residing and having their actual residence" in said third district of the eighteenth ward, did vote at said election in said district and ward; but that he does not know for whom they voted. He has been informed, and believes, that a portion of them did vote for himself and a portion for the contestant. He does not know the ward or district from which they were admitted to the almshouse, but believes that they resided in said district and ward before they became inmates of the almshouse, and had been in the habit of voting there. The contestant also alleges: Second. That nine persons, who were paupers in said almshouse on and previous to said election, voted in the second election district of the twelfth ward for the sitting member; and that none of said paupers resided in said district before they were admitted to said almshouse. This is also denied by the sitting member, who alleges that some persons, originally from the said almshouse, and who had gone thence, in the spring of the year 1846, to a farm on Randall's island, in said second district of said twelfth ward, where they were then engaged in tilling said farm under the direction of Moses G. Leonard, almshouse commissioner of the State of New York, did vote at said second election district of said twelfth ward, at said election. He does not know for whom they voted. He insists that they were residents of said twelfth ward; that they were challenged at the time of offering their votes, and were only admitted to vote after having taken the preliminary oath required by the laws of New York, having answered all questions put to them by the inspectors, and having taken the final oath required by the constitution of the State of New York. The contestant also alleges: Third. That from twelve to twenty four persons who were, at the time of said election, convicts, undergoing punishment at the city prison on Blackwell's island, voted in the second election district of the twelfth ward for the sitting member. The sitting member denies that said number or any other number of persons were brought from the prison on Blackwell's island and voted for him at said election. The contestant also alleges: Fourth. That on the night previous to the said election between three and tour hundred persons were taken from Blackwell's island on board of a sloop and located principally in the eleventh ward, with a view to their voting; and that all or many of them did vote at said election for the sitting member, when none of them were entitled to vote in said congressional district. This is expressly denied by the sitting member. The contestant also alleges: Fifth. That eight or more foreigners, who were not entitled to vote, voted at the first election district of the twelfth ward for the sitting member. This is denied by the sitting member. The contestant also alleges: Sixth. That fire or more foreigners, who were not entitled to vote, voted for the sitting member at the second election district of the twelfth ward. This is denied by the sitting member. The contestant also alleges: Seventh. That eight or more persons, not residents of the sixth congressional district of New York, voted in the twelfth or some other ward of the said district for the sitting member. This is denied by the sitting member. The contestant also alleges: Eighth. That five or more illegal votes were cast for the sitting member in the sixteenth ward, of a district not specified. This is denied by the sitting member. The contestant also alleges: Ninth. That one of the inspectors of the fifth election district of the sixteenth ward was absent during a great portion of the day of election; and that many persons who were brought to said poll to vote were challenged, and refused to take the oath prescribed by law as to their right to vote; and that when the inspector referred to was away from the polls said persons were illegally admitted to vote by the remaining inspectors. The sitting member alleges that he has no knowledge or information in relation to this charge, but admits that he has heard that (for a few minutes during the day) one of the inspectors in said district was necessarily absent, and insists that this should not invalidate the election in that district. He denies that any persons who had been challenged and refused to take the necessary oath were afterwards admitted to vote in said district. The contestant also alleges: Tenth. That an inspector of the first election district of the twelfth ward declared, after the election, that he "got two votes for Jackson; one by letting a ballot drop in the box when the vote was challenged, knowing him not to be a voter; another in canvassing the votes, when Jackson's name was evidently erased, and said it was only blurred." The sitting member declares that he has no knowledge or information in relation to this charge. The contestant also alleges: Eleventh. That the sitting member was, at the time of said election, president of the board of aldermen of the city of New York, and that the officers and keepers of the almshouse and city prison are appointed by the authorities of said city. The sitting member admits that he was the president of the said board of aldermen at the time of said election, but says that the said officers and keepers had chiefly, if not in every instance, been appointed previous to his election as president of the board. The contestant also alleges: Twelfth. That Norman B. Smith was, at the time of said election, a candidate for the assembly of New York, and also an officer in said almshouse; and that he was the candidate of the party which nominated the sitting member. This is admitted by the sitting member. The contestant also alleges: Thirteenth. That one of the inspectors of elections of the third district of the eighteenth ward was appointed and qualified after the board of inspectors had organized and the balloting had commenced, and before the paupers had voted. That said appointment was made by the alderman or assistant alderman alone, who was a brother of the sitting member. The sitting member denies that the appointment was made under the circumstances here charged. He admits that his brother was an alderman in said ward, and insists that if the appointment was made as charged, the election would still be valid, as there were two other competent inspectors. The contestant also alleges: Fourteenth. That the inspectors of election of said third district of the eighteenth ward, or a majority of them, admitted the paupers from the almshouse to vote because the said paupers "considered the almshouse their residence.” The sitting member denies that any decision was made by the inspectors in said district in regard to the right of the paupers generally to vote, but insists that when each one offered his vote it was refused, unless it appeared that he was then an actual resident in said ward. The report continues: The first question to which the committee think it necessary to turn their attention is that which arises under the law of New York, as to the right of the inmates of hospitals and almshouses to vote. That law provides that "no. person shall be deemed to have lost or acquired a residence by being a student |