contestant, having received an expression of their choice from the largest number of legal voters, ought to be admitted.

The minority (minority report not given in 1 Bart.) held that the House had no power to inquire into the validity of the election and organization of the legislature of Kansas. The laws passed by that legislature must be held to be valid unless they were in conflict with the organic law of the Territory or the Constitution of the United States. The contestee having received an undisputed majority of the votes cast at the election held under the law, even after the elimination of all illegal votes, he was entitled to retain the seat. The only evidence elicited by the investigating committee throwing any light on the question of the validity of the legislature was a private admission of contestant that it was legally organized. The testimony did not show the condition of violence and intimidation claimed. Every citizen of Kansas was free to vote as he pleased, and if it was true that many nonresident votes were cast, their number was not sufficient to affect the result of the election.

As to the proposition of the committee to unseat the contestee because he was not elected under a valid law, and then seat the contestant, who did not claim to have been elected under any law, the minority said that they could look upon it "as nothing short of an open outrage upon both law and right, and if it be sanctioned by the House, an act without a parallel in the annals of parliamentary history." The resolution declaring that contestee was not elected was agreed to after a prolonged debate by a vote of 110 to 92. The resolution giving the seat to the contestant was rejected by a vote of 88 to 113. The seat thus being vacated, a new election was held, which gave rise to a second contest (see page 149).

[1 Bart., 185-204, and Report No. 275, first session Thirty-fourth Congress (part 2, minority report, not given in 1 Bartlett).]

(6) BENNET vs. CHAPMAN.

Irregularities. Majority report for contestant; minority report for contestee. Contestee retained the seat.

Majority report by Mr. Watson; minority report by Mr. Stephens. Counting all the votes cast in the Territory, contestant had a majority of 13 votes. But the governor and Territorial canvassers had rejected the returns of about half the counties in the Territory for various irregularities, and contestee claimed that these returns, or enough of them to give him the majority, were properly rejected.

Some of the returns were rejected on the ground that the poll books containing the precinct returns were forwarded by the county register to the office of the secretary of the Territory. The law required them to be kept in the office of the county register, there to be canvassed by the probate judge and three householders, and the canvass to be forwarded to the secretary of the Territory. But the committee held. that the law was merely directory, and that the irregularity was not such as to justify the rejection of the votes. The probate judge and three householders had no power in their canvass except to count the votes returned to them. The original precinct returns were better evidence of the vote than any canvass of them could be, and the only

irregularity was that the Territorial canvassers had better evidence before them than the law required them to have.

In one county the clerk certified a county abstract in due form, and also certified abstracts of the precinct votes. On these latter abstracts he certified that no poll books had been returned to him from certain of the precincts. The committee held that if this was a fact, the clerk's certificate was not evidence of it. In one of the precincts there was affirmative proof that a poll book was kept, and even if it were admitted that it was not transmitted to the county clerk with the abstract of votes, this ought not to invalidate the return.

Two counties had been rejected because of illegal votes and because the county canvassers had refused to certify to the election of a county officer voted for at the same election. It was claimed that if this rejection was not sustained, at least those votes cast on the "half-breed tract" should be rejected. But the committee found no evidence that they had ever been counted. The certificates on the returns indicated that they had not been counted, and while these certificates might not be evidence of the fact, they were certainly not evidence to the contrary. Even if they were counted, the committee were of the opinion that the voters had a right to vote. They were citizens of the United States, the territory on which they lived was different from ordinary Indian reservations, and even if they were trespassers on it, the trespass should not disfranchise them. The other objections to their votes were not sustained by evidence.

The contestant having received a majority of all the votes, the committee reported resolutions declaring him elected.

Mr. Stephens presented a minority report, holding that contestee was legally elected. The omission of the county canvass of votes he held to be a fatal irregularity. The election officers were appointed by the probate judge, and unless their returns were canvassed by him there was no evidence that the persons making returns were the election officers. The poll books, or lists of voters, were the only means of detecting illegal votes, and the returns not accompanied by them were properly rejected. But if all these votes, and all votes except those cast on the "half-breed land" were counted, contestee would still have a majority. The officers who held the election in the "half-breed land" acted without legal appointment and were not sworn. The persons on this land were outside of the civil jurisdiction of the Territory, refused to pay taxes or perform the duties of citizens, and were clearly not entitled to vote.

After a brief debate the House confirmed the right of the sitting member to his seat by a vote of 69 to 63.

[1 Bart., 204-214.]

(7) CLARK vs. HALL.

Contestee retained the seat.

Irregularities. Report for contestee.
Report by Mr. Bingham.

The committee reported that some of the county abstracts were informal, but in accordance with their decision in the previous case (Bennet vs. Chapman) they did not reject them. It also appeared that some of the abstracts did not contain all the votes cast, but as the changes required by the evidence would not overcome the returned

majority of the contestee they reported a resolution declaring him The House agreed to the resolution without debate or

elected.

division.

[1 Bart., 215.]

(8) REEDER VS. WHITFIELD (second case).

Same issues as first case; and also right of governor of Kansas to order special election. Majority report to declare seat vacant; minority report for sitting Delegate. `Resolution laid on the table, leaving contestée in his seat.

Majority report by Mr. Washburn; minority report by Mr. Oliver. The House having declared the seat of the Delegate from Kansas vacant, the governor issued a proclamation fixing a time for a new election. At this election Mr. Whitfield received all the votes cast. He was admitted to the House pending the contest, after a long debate. The committee found that the election was held by officers and according to laws deriving their authority from the legislature of Kansas, which had already been decided by the House to be an illegal body and incapable of passing valid laws. But if its legality were conceded, there was no law under which this special election could have been held. The organic law of the Territory empowered the governor to fix the time for holding the first election, but subsequent elections were to be held at times fixed by the legislature. Among the provisions of the laws passed by the legislature was no provision for a special election like this. If, however, it had appeared that the sitting member was the choice of a majority of the citizens of Kansas, the committee would be inclined to waive these considerations and recommend that the House exercise its discretionary power to admit him. But this did not appear, and the contrary seemed probable. The election was held under a law passed by, and by officers indirectly appointed by, the usurping legislature. These officers might be trusted to carry out the law according to the evident intent of the legislature. The law was an extraordinary one. It prescribed no period of residence as a qualification for voting, but only actual inhabitancy in the Territory at the moment of voting. The election officers might at their discretion receive evidence concerning the qualification of voters, or examine the voters themselves; in the latter case no other evidence was to be received to contradict the voter's oath. All the voters were required to take a test oath to support the fugitive-slave law and the Kansas-Nebraska act. The laws thus permitted any citizen of Missouri to vote who would swear that he was at the time of the election an inhabitant of Kansas, while disfranchising all of the citizens of Kansas who could not subscribe to a test oath committing themselves to the principles of the party in power. A large proportion of the citizens of Kansas did not vote at the election, both because they were disfranchised by the test oath and because they believed the election to be held without authority of law.

The committee recommended that the seat be declared vacant.

The minority held that the charges that the legislature of Kansas was elected by fraud and usurpation were unfounded. While there might have been individual instances of violence, the majority of the legislature were elected by a majority of the bona fide citizens of Kansas.

The spirit of the organic act of the Territory justified the governor in fixing the date for the special election, and it was still more clearly made his duty by the spirit of the act of 1817. The objection to the election on this score was technical, and not of the sort that ought to be addressed to a tribunal like the House of Representatives.

The House, by a vote of 96 to 85, tabled the resolution reported by the committee, which left Mr. Whitfield in his seat. The only debate on this case was upon the swearing in of the Delegate when he first appeared.

[1 Bart., 215-222.]

THIRTY-FIFTH CONGRESS, 1857-1859.

Committee on Elections.

Mr. HARRIS, Illinois,

BOYCE, South Carolina,
WASHBURN, Maine,
STEVENSON, Kentucky,

Mr. PHILLIPS, Pennsylvania,
GILMER, North Carolina,
LAMAR, Mississippi,

WILSON, Indiana,

Mr. CLARK, Connecticut.

In the second session, Messrs. WRIGHT, of Tennessee, and CAVANAUGH, of Minnesota, in place of Messrs. PHILLIPS and HARRIS.

Cases.

(1) Clement L. Vallandigham vs. Lewis D. Campbell, Ohio.
(2) Henry P. Brooks vs. Henry Winter Davis, Maryland.
(3) W. W. Phelps and James M. Cavanaugh, Minnesota.

(4) Alpheus G. Fuller vs. W. W. Kingsbury, Minnesota Territory.
(5) Wm. Pinkney Whyte vs. J. Morrison Harris, Maryland.
(6) Bird B. Chapman vs. Fenner Ferguson, Nebraska.

(1) VALLANDIGHAM vs. CAMPBELL.

Application for further time to take testimony refused. Illegal votes. No majority report. First minority report for contestant; second minority report for contestee; third minority report to vacate seat. Contestant seated.

Majority report on preliminary question by Mr. Harris; minority report by Mr. Wilson.

First report on main case by Mr. Lamar; second report by Mr. Gilmer; third report by Mr. Harris.

Contestee applied to the committee to recommend that time be given to take further testimony. The committee reported that the main grounds on which the application was based seemed to be that contestee, having been a member of the previous House, had been unable to attend at the taking of testimony, and that contestant had occupied the whole of the sixty days, leaving no time for contestee. The committee found that the first ground furnished no valid excuse, as the law plainly contemplated that the parties might be represented by agents. The second ground was also insufficient, for, while the law prevented either party from taking testimony in two places at once, it did not prevent both parties from taking testimony at the same time.

The minority recommended that the extension be granted. The contestant had occupied the whole time, in some cases taking testimony in two places at once, so that he had utilized seventy-five days within the sixty days, while contestee had only been able to use ten days. At the close of the sixty days contestee had proposed that both parties continue to take testimony, waiving the objections of time, but contestant had refused, and no course was left to contestee but to make application to the House when in session.

The House, by a vote of 114 to 101, refused to extend the time.