Territory, which resulted in the election of James Duane Doty, as appears by the certificate of the governor, herewith reported, and marked B.

No doubt exists as to the due election of Mr. Doty to serve as a delegate for a term of two years; but the question presented to the committee is this: When does his term of service commence? On the one side, it is contended that it commences with his election, or at least with the date of the governor's certificate of his election; on the other side, it is contended that the term for which Mr. Jones was elected in the fall of 1836 does not expire until the 4th of March, 1839; and in support of this view of the case, reference is made to the act of Congress of 3d March, 1817, the first and only section of which now in force is in the words following: "In every Territory of the United States in which a temporary government has been, or hereafter shall be, established, and which, by virtue of the ordinance of Congress of 13th July, 1787, or of any subsequent act of Congress, passed or to be passed, now hath, or hereafter shall have, the right to send a delegate to Congress, such delegate shall be elected every second year for the same term of two years, for which members of the House of Representatives of the United States are elected." Reference is also made to the act of 16th February, 1819, in which it is provided that the citizens of Michigan Territory be, and are thereby, authorized to elect one delegate to the Congress of the United States; that the person who shall receive the greatest number of votes at such election shall be furnished by the governor of said Territory with a certificate, setting forth that he is duly elected the delegate for the term of two years from the date of said certificate.

Under the act of 1819 Mr. Jones was elected a delegate for Michigan Territory, in October, 1835, and took his seat at the ensuing session, in December, 1835. By the act of June 15, 1836, the constitution and State government which the people of Michigan had formed for themselves was accepted, ratified, and confirmed, and she was declared to be one of the United States of America, and was admitted into the Union according to the boundaries therein prescribed, on condition that the boundaries so prescribed and established should receive the assent of a convention of delegates elected by the people of said State, for the sole purpose of giving the assent required; and as soon as said assent was given, the President of the United States was to announce the same by proclamation; and thereupon, and without any further proceeding on the part of Congress, the admission of said State into the Union shall be considered as complete. A convention of delegates, elected for the purpose expressed in the said act, was held, and gave their assent to the boundaries therein described, on the 15th of December, 1836.

The committee are of opinion that although in October, 1835, Mr. Jones was elected a delegate for Michigan Territory, to serve two years, yet, in the nature of the case, his term of service could not survive the existence of the corporation he was elected to serve. If the corporation of the Territory of Michigan was dissolved before the expiration of the two years for which he was elected, his office, as well as that of all other territorial officers, expired with it. It would seem to the committee that the Territory of Michigan, as a political corporation, was no more after the passage of the act of 15th June, 1836, organizing and erecting Michigan into a State; for, although there was a condition in that act, on compliance with which only she was to be admitted into the Union, yet that did not derogate from her character as a State, or prevent her from exercising all the powers of a State. Her being a State, and, as such, being admitted into the Union, are two different things. She might be a State, and was a State, exercising all the powers of a State under her own constitution, before she was admitted into the Union, and before the election in Wisconsin in October, 1836. At the time Mr. Jones was elected a delegate for Wisconsin Territory, in October, 1836, he was not a delegate for Michigan Territory, for the plain reason that no such Territory was in existence. In December, 1836, H. Mis. Doc. 57- -2

he took his seat, and was sworn, as a delegate from Wisconsin, since which he has served two years-the full period allowed him by law. But it is alleged by Mr. Jones that under the act of 1817 a delegate must be elected only for one Congress, and not for parts of two congressional terms; that his term as a delegate from Wisconsin did not commence until the 4th of March, 1837, and consequently will not expire until the 4th of March, 1839. In this the committee do not concur with him, because it would have been leaving Wisconsin unrepresented for one whole session, contrary to the intention of the people as expressed in electing a delegate in October, 1836, in conformity with the privilege granted them for that purpose by the act of Congress of April, 1836; and because it does not follow, from the act of 1817, that a delegate from a Territory must be elected for and serve the same two years for which members from the States are elected; but (although this construction is not given with entire confidence in its correctness) the committee would construe the law to mean that delegates should be elected for the same length of time as representatives from the States. This construction is fortified by the fact, that previous to that law delegates were elected annually. Such construction will not clash with any provision of the Constitution, as delegates are so far the mere creatures of law that their term of service may be long or short, and may commence and terminate at such periods as Congress, in their wisdom, may direct. But if in this construction of the act of 1817 the committee should be in error, still their opinion would induce them to give Mr. Doty the seat, because, as the committee believe, that act has nothing to do with the present contest. It is nothing but an act of Congress, and, of course, subject to the control of subsequent legislation. It was controlled (if Mr. Jones's construction of it be right) by the act of 1819, which directed that the delegate of Michigan should serve two years from the date of the certificate of the governor, without regard to the commencement of his term, whether at the beginning or in the middle of a term of Congress. So would it be controlled by the act of 20th April, 1836, organizing the Territory of Wisconsin, which gives the power to its citizens to elect a delegate to represent them in Congress, without fixing any time for the commencement of his services; consequently, according to common construction in all such cases, where an obligation is imposed, or a duty to be performed, and no time fixed for discharging the obligation or performing the duty, it is to be done forthwith; and therefore the inference is, that Mr. Jones's duties as a delegate from Wisconsin commenced with his election in October, 1836, and terminated with Mr. Doty's election in 1838. The act of April, 1836, organizing the Territory, needs the aid of no other; it is perfect in itself, and would seem to be independent of all other acts.

On the whole, after all the consideration which the committee have been able to bestow on the subject, they have no hesitation in saying that considerable difficulty exists in reconciling the provisions of the different acts which may be supposed to have a bearing on the matter; yet they feel a great degree of confidence in two positions: first, that it was the intention of Congress, by the act of April, 1836, organizing the Territory, to afford the people of the Territory the privilege of an immediate representation in Congress by a delegate to be elected by themselves; and, second, that the people of the Territory acted with a view to the enjoyment of that privilege in electing a delegate in October, 1836. The conclusion would then seem to be, that Mr. Jones has served out the term for which he was elected in October, 1836, and that Mr. Doty is entitled to the seat under his election in 1838.

The committee submit the following resolution:

Resolved, That James Duane Doty is entitled to a seat in this house as a delegate from Wisconsin Territory, and that George W. Jones is not so entitled.

After a very brief discussion of the case, the House, by yeas 165, nays 25, agreed to the report of the committee.

In this well-known case the House, before it was organized, refused to admit claimants to seats who brought the governor's certificate of election. After organization the rival delegation was admitted to seats during the contest. Held by the committee, that hearsay declarations of the voter should be rejected. That prima facie it is to be taken that none but qualified votes have been received, and it is not sufficient that a doubt of their legality exists. Where it was alleged that the voter had not been naturalized, held that contestant must prove the allegation, even where the fact that the voter was alien-born was admitted. The disqualification of an officer, to affect the legality of an election, must be co-existent with the election.

The consideration of this case occupied a large portion of the first session of the twenty-sixth Congress. The organization of the House was delayed by it for two weeks. Two delegations presented themselves from five congressional districts in New Jersey-there being no controversy respecting one of the members. Messrs. Stratton, Maxwell, Halsted, Yorke, and Aycrigg offered the usual evidence of election-the certificate of the governor of New Jersey. Messrs. Kille, Ryall, Dickerson, Cooper, and Vroom presented themselves with the certificate of the secretary of state of New Jersey that they had received a majority of the votes cast in their respective districts. After a debate covering nearly two weeks the House (still unorganized) refused to permit either set of delegates to be recognized by the clerk as members. On the 13th of January the House, on motion of Mr. Campbell, of South Carolina, chairman of the Committee of Elections, agreed to the subjoined resolutions :

Resolved, That all papers or other testimony in possession of or within the control of this House, in relation to the late election in New Jersey for representatives in the twenty-sixth Congress of the United States, be referred to the Committee of Elections, with instructions to inquire and report who are entitled to occupy, as members of this house, the five contested seats from that State.

Resolved, That a copy of this resolution be served on John B. Aycrigg, John P. B. Maxwell, William Halsted, Charles C. Stratton, Thomas Jones Yorke, Peter D. Vroom, Philemon Dickerson, William R. Cooper, Daniel B. Ryall, and Joseph Kille, all citizens of New Jersey, claiming to be representatives from that State in this Congress, and that the service be made upon each gentleman personally, or by leaving a copy at his usual residence; and that said committee be authorized to send for persons and papers.

On the 28th of February, (1840,) the House instructed the committee "to report forthwith which five of the ten individuals claiming seats from the State of New Jersey received the greatest number of lawful votes from the whole State for representatives in the Congress of the United States at the election of 1838, in said State, with all the evidence of that fact in their possession: Provided, That nothing herein contained shall be so construed as to prevent or delay the action of said committee in taking testimony and deciding the said case upon the merits of the election."

The first report of the committee was submitted to the House March 5, 1840 After discussing the resolution of the House instructing the committee in reference to this case at considerable length, the committee proceed as follows:

With this explanation, which they have considered due to the House and to themselves, the committee will now proceed to examine the allegations against the validity of certain township elections, as far as such an examination can be made upon the testimony in their possession.

Upon this branch of the case the claimants holding the governor's commissions claim

1st. That, apart from their not being received in time to be counted according to law, the votes of Millville should be set aside for the fraudulent and illegal conduct of the officers of election, in proclaiming their intention to receive the votes of aliens, and in receiving a large number of such knowingly, and in violation of the laws of the State.

Without inquiring into the effect of these charges, if they were substantiated by competent and satisfactory testimony, it is sufficient to state that they are unsupported by any testimony in the possession of the committee.

2d. They allege that, apart from all defects and irregularities in the return, the votes of South Amboy should be set aside, because one of the officers of election duly chosen was unlawfully prevented from acting, and another substituted in his place, who acted and signed the list, &c.; and because the board, thus unlawfully constituted, received a large number of alien votes contrary to law.

In support of these allegations, numerous depositions have been produced, but without expressing an opinion, whether, if satisfactorily proved, they would constitute sufficient evidence of fraud to set aside the votes of this township, it is only necessary to state that the evidence was taken ex parte, without sufficient notice, and has been rejected by the committee as incompetent to be considered in this case.

3d. It is further claimed, that the poll held at Saddle River, in Bergen county, should be set aside: because at least eight votes given for them were fraudulently abstracted from the ballot-box, and as many for their opponents fraudulently substituted: because, in making out the list of votes in said township at least eight votes less than were given for them were counted in their favor, and at least as many were counted for their opponents, more than they received; and because the list of votes in said township bears upon its face evidence of mistake or fraud.

In support of these charges, the depositions of numerous voters have been submitted; but, being taken ex parte, and without sufficient notice, they have been rejected by the committee as incompetent testimony.

It is also claimed that the polls held at the townships of Newton, Harderton, and Vernon, in Sussex county, should be set aside, for reasons that will more fully appear by reference to the document marked A, accompanying this report. But there is no competent evidence before the committee in support of these allegations.

Having thus disposed, for the present, of the various objections to the validity of the elections held at the several townships claimed to be set aside, the committee will now proceed to ascertain "which five of the ten claimants received the greatest number of lawful votes" at the late congressional election in New Jersey, according to the several returns purporting upon their face to be made by officers duly authorized to act.

The committee take as the basis of their calculation the statement upon which the governor and privy council of New Jersey made their decision, and which is found in the minutes of the proceedings of the governor and privy council. From this statement it appears that the total of votes for each of the ten claimants was as follows: For Philemon Dickerson, 27,951; Peter D.

Vroom, 27,990; Danial B. Ryall, 27,939; William R. Cooper, 27,954; Joseph Kille, 27,924. For John B. Ayerigg, 28,150; John B. P. Maxwell, 28,239; William Halsted, 28,192; Charles C. Stratton, 28,252; Thomas Jones Yorke, 28,177. For Philemon Dickinson, 3. For John B. Acrigg, 1.

[The report then goes on to declare that this statement does not include the votes received at the townships of Millville and South Amboy. The vote of the two sets of claimants in these townships the report alleges was as follows: For Messrs. Dickerson, 502; Vroom, 502; Ryall, 502; Cooper, 501; Kille, For Messrs. Aycrigg, 144; Maxwell, 144; Halsted, 145; Stratton, 144; Yorke, 144. The report closes as follows:]

Thus it appears that prima facie upon the evidence in the possession of the committee, Philemon Dickerson, Peter D. Vroom, Daniel B. Ryall, William R. Cooper, and Joseph Kille, are the "five of the ten individuals claiming seats from the State of New Jersey" who "received the greatest number of lawful votes from the whole State for representatives in the Congress of the United States at the election of 1838 in said State."

The minority report sets out with the subjoined statement of the case :

"The commissioned members claimed the vacant seats under and by virtue of the commissions issued by the executive of New Jersey; and insisted that if the committee should determine to go back of those commissions, and to inquire into the merits of the election, they had a majority of the legal votes polled, and also a majority of the votes lawfully certified to the governor.

"The non-commissioned claimants admitted the authenticity of the commissions, but alleged that they received the greatest number of votes polled; that the governor and privy council unlawfully refused to count the votes from the townships of Millville and South Amboy, for the reason that they were not included in the certificates of the clerk of the counties of Middlesex and Cumberland; and that, had the votes of these townships been counted, the result would have been a majority in their favor. That the commissions being thus erroneously and unlawfully issued, were void.

"The commissioned members alleged numerous frauds and illegalities in the election; some of which they insisted ought to set aside the polls; and others invalidate the votes; such as excluding duly elected persons from officiating as judges of election; the determination of electing officers to receive alien votes, and, in fact, receiving such votes, knowing that they were illegal; disregarding all challenges of illegal votes, and permitting persons, attempting to challenge, to be driven away by threats and violence; and fraudulently abstracting votes given for them, and substituting others for their opponents, and rejecting legal votes offered for them, and admitting illegal votes on the other side; and they also submitted to the committee a list showing about 230 illegal votes given and counted for the non-commissioned claimants, and three or four legal votes offered for the commissioned members and rejected. They also alleged that they expected to prove an extensive conspiracy among the friends of the opposite set of claimants, to perpetrate these frauds and obtain these illegal votes ; that they had taken some evidence to establish said fact, but had been prevented from completing the proofs, because there was no law regulating the mode in which the same should be obtained, or giving compulsory process to compel the attendance of witnesses; and also because the friends of the noncommissioned claimants had persuaded witnesses not to attend for examination, and had prevented officers from taking depositions by intimidation and threats of public prosecution for so doing; and they asked further time, and the authority and direction of the committee, to enable them to compel the taking of their testimony.