asked them if they knew every one who lived in their settlement; they said they did. I then read over the names on the poll-list again, and asked them to name each man as I read over the names who lived in their settlement; they named forty. I counted them. I asked if they knew how many men living in their settlement voted at the last election. They said they did; that there were just forty. I asked for whom they generally voted. They said they all voted for Judge Ferguson.

Kenedy was acquainted with the Mormon settlement; thinks they were 120 voters; no Mormon trains about time of election; his opportunity of knowing is as good as Mr. Reck's; full vote not polled.

G. W. Stevens considerably acquainted in the Mormon precinct; thinks 100 or more voters. H. T. Hudson, elder in the church of the Latter Day Saints, well acquainted in Monroe precinct; about 100 voters; told Chapman the election was not fair; thought so until he got better information. There was an eccentric individual generally known by the name of Samuel Weller, and I should not wonder if he voted under that name.

Charles H. Whaley, probate judge of Monroe, was pretty well acquainted; thinks there are about 100 voters in Monroe and Genoa; thinks the election fair; did not know of one illegal vote; voted for Chapman; challenged some of the voters.

W. F. Pierce, manager of election; pretty well acquainted; thinks there was no illegal voting.

R. P. Kimbal, clerk of election; pretty well acquainted; thinks the election perfectly fair; thinks there were more than 87 legal voters in the precinct then; the contest for county seat made each side vigilant in challenging votes.

Florence precinct.-Contestant's evidence.

T. Donovant said: "Mormon Tom voted four or five times; " heard one of the judges of election, between eight and nine o'clock p. m., say that 373 votes were polled.

E. Creighton was told by one of the judges of election, "about five o'clock or after," that 271 votes were polled.

The poll at Florence, at election in August, 1858, was 159.

Ferguson's evidence.

R. W. Steele, one of the managers of election, says not over "fifteen votes were polled after 6 o'clock. The negro sworn to by Donovant as voting offered to vote, but was rejected; does not believe Mormon Tom voted more than once; there was no Mormon train near at the time of election, and none such voted; knew all who voted, except those from Saratoga; there were about thirty of them; most of them voted for Thayer; some perhaps for Chapman; does not think any of them voted for Chapman; should not believe Donovant on oath; believes he swore falsely in a pre-emption claim; had that reputation.

Florence.

Dr. Malcomb. No Mormon train; all left before; no persons of such train voted.
The vote polled at Florence in the election August 2, 1858, was 159.

Dr. Harsh, manager of elections at Florence. Polls closed about 7; we waited for some voters to come in from prairie; "they were legal voters-about 15."

To oust the sitting member, it is necessary to throw out the Florence precinct. We have not felt at liberty to do this, for obvious reasons. We have deducted the fifteen votes polled after 6 o'clock. The result at which we arrive is, that the sitting member is elected by 34 majority. We reach this by the following process:

For Ferguson, as returned by canvassers.
Add votes not counted...

1, 654
5

We therefore recommend the adoption of the following resolution, viz: Resolved, That Fenner Ferguson is the legally elected delegate from the Territory of Nebraska. W. W. BOYCE,

I. WASHBURN, JR.

The subjoined extracts from the brief debate on this case indicate its char

acter:

Mr. WASHBURN, of Maine. The election in Nebraska was held on the 3d of August, 1857. Notice of contest was given within the time prescribed by the law of 1851. The answer was filed on the 3d October. The contestant, although the field is open for operation, does not serve his notice of testimony till November; and he then cites the sitting delegate to appear and take testimony on the 23d and 24th of November-within two weeks of the time when he was to take his seat on this floor, under the certificate that he held from the authorities of the Territory-although there had been forty or fifty days before that in which the testimony could have been taken had the contestant been disposed to give the sitting delegate a fair opportunity of being present and meeting that testimony.

But the contestant, after the sitting delegate had left the Territory on a visit to New York, and without an intention of returning until after the close of the first session of this Congress, caused a notice to be left in the house where Mr. Ferguson had formerly resided, but where he did not then live. One notice was left in the hands of a party who was there but transiently, and whose residence was some ten miles distant. Another notice was subsequently left at the same house, in the hands of the person residing in, and the tenant of, the house; but neither of these gentlemen, as appears by the affidavit, of Mr. Ferguson, was his agent or attorney. And when one of them did offer to appear-inasmuch as the notice had been left at his house-and to cross-examine witnesses, the magistrate refused to permit him to do so, unless he could show that he had been authorized to appear by the sitting delegate; and so all cross-examination was precluded. A citizen of the Territory, whose case was on trialfor the people are interested in these election questions-was refused permission to examine the contestant's witnesses.

Mr. CLARK B. COCHRANE. I desire to know whether, before Mr. Ferguson left the Territory to come to Washington, he received personal notice that his election would be con

tested?

Mr. WASHBURN, of Maine. He had received notice of the contest. It is in evidence that while he was in Washington, on his way to New York, he here met the contestant, and told him that he was going to New York, and should not return home until after the first session of Congress. The contestant, therefore, knew that the sitting delegate was not in the Territory, and that notice left for him there would never reach him. The contestant might then have notified Judge Ferguson, or ascertained where he would have the notice left.

Mr. WILSON. I wish to ask the gentleman whether the notice of contest was not served within sixteen days after the election?

Mr. WASHBURN, of Maine. The answer to the notice of contest was dated on the 2d day of October; and on the 12th day of November, one month and ten days after the party might have proceeded to take testimony, he gave notice that he would do so on the 23d of November, within two weeks of the time when the sitting member was bound to be here. He might have taken that evidence before; and I submit whether he should not have done it if he desired to give fair play; for then the sitting member could have been present and had an opportunity of cross-examining witnesses.

Mr. MAYNARD. I wish to ask the gentleman from Maine whether, as ratter of fact, without reference to the formality of the notice served, the testimony shows that the contestee received actual notice or not?

Mr. WASHBURN, of Maine. It appears from his affidavit that he knew nothing about it; and it was because of this fact that the House, at the last session, passed a resolution author izing both of these parties to go home and take testimony; and I supposed, at the time, that the contestant would go home and give notice; and if he desired to bring this testimony here again, he would cause it to be taken over again, and give the sitting member an opportunity to be present at the caption.

Mr. Speaker, not only is all this testimony ex parte, but a great part of it is composed of mere affidavits; and most of that which was alluded to and commented on by the gentleman from Indiana was in the form of affidavits sworn to before a notary public, who, the gentleman himself says, has no right to administer an oath in the Territory of Nebraska. And, sir, there is not a single fact, upon which he relies for the material points in his case, but what is hearsay. There is not a single fact of importance touching the precincts of Florence and Monroe, but what comes from the declarations of third parties. There is not a scintilla of testimony here which is not of that character; whereas the rebutting testimony is that of witnesses who lived within the precinct, and who were sworn and cross-examined, and state facts within their personal knowledge. The testimony of the contestant is, as I have said, largely composed of mere affidavits; and such, under the law of 1851, cannot be received at all as H. Mis. Doc. 57-18

evidence, and no one has contended more strenuously than the gentleman from Indiana that this kind of testimony cannot safely be received. In the case of Campbell and Vallandigham last year, it was contended, on the part of Vallandigham, that the testimony of witnesses to the declarations of certain parties as to whom they voted for should be received. The majority of the committee, I believe, were of opinion that that testimony might be received, upon the ground that the declarations of men at the time they deposited their votes were a part of the res gesta, and must be received from the necessity of the case, as there might be no other way of proving how parties voted. But, sir, there is no such necessity or excuse for it in this case, not even in reference to the allegation made by one of the judges of the election as to how many votes were cast at the Florence precinct before a certain hour of the day, because he was a legal witness, and might have been examined; in fact he has been, I believe. The statement which he is reported to have made is mere hearsay, and not admissible upon any principle. And the same is true in regard to the declarations of Nichols, and somebody else, who went over from Omaha to Monroe, and made inquiry as to how the vote stood there, and how many votes had been received; and then came back and retailed, in the form of affidavits, the statements of others, upon which we are asked to unseat a member of this house.

I desire to call the attention of the House to the position which the gentleman from Indiana took last session; and bear in mind that this evidence, which he contended should not be received then, was the admission of a party, made at the time he voted, and was a part of the transaction. Says the gentleman from Indiana, in the case of Vallandigham vs. Campbell: "Such is the evidence produced to prove that twelve negro votes were cast for the sitting member in Oxford township; such is the evidence on which we are called to decide the rights of a hundred thousand people. It is mere hearsay; it is no evidence. He does not state, of his own knowledge, any fact, or what means he had of knowing. He merely retails the loose statements of bitter partisans."

Mr. WASHBURN. Again, he says:

"Another witness testifies, in regard to a voter, that the father of the voter was a republican; that the family were republican; that the son voted; and of course it followed that his vote was cast for the sitting member. Is this satisfactory evidence to the legal gentlemen on the other side of the House? Is it evidence at all? Most certainly not."

And yet, sir, it is entirely upon evidence of this kind that the sitting member must be unseated, if that shall be the judgment of this house--nay, upon worse evidence; for the reason for admitting that does not apply in this case at all.

Mr. WILSON. I stand now by every word I said then, but the House decided otherwise; and I presume that at least the other side of the House will be bound by the rule which they established in that case.

More than that, there is a difference between that case and this. Here is a declaration made by a judge of the election, at the very time the election was proceeding; and it is very difficult for me to determine whether this is not part of the res gesta, and not hearsay evidence. But still, I put this case upon the broader ground that the fact that the polls were kept open contrary to law, from six until nine o'clock, vitiates the entire election.

Mr. WASHBURN, of Maine. If the gentleman has changed his opinion since last session, I have not. I maintain that hearsay evidence in all cases is unsafe, and ought not to be resorted to or relied upon. The gentleman from Indiana last session recited from the case of Archer vs. Allen, as follows:

"There is some testimony that certain persons said that they had heard another man say that he had voted for Mr. Allen, when he had no right to vote. But are we to disfranchise a congressional district of a hundred thousand inhabitants on hearsay testimony that would not be received in a magistrate's court when a shilling was in controversy ?"-App. to Cong. Globe, 1st sess. 34th Congress, vol. 33, p. 929.

And again, in the same report:

"Next, as to Alfred Cowden, the only evidence is that he was heard to say that he had voted at the election; that he had voted for Allen; that his vote had elected him, &c.; and that he was not of age at the time. This evidence, the undersigned are clearly of opinion, is hearsay evidence of the worst sort. It is no evidence at all. It would not be received as evidence in any court, and it never should be received in cases of contested elections before this house; for, by the admissibility of such evidence, it would be the easiest matter in the world to set aside any close election, and defeat the will of the majority, by getting persons to say that they had voted illegally for the man whom, perhaps, they had used their greatest efforts to defeat. Falsehoods, where there is no solemnity of an oath, are often resorted to in elections in canvassing before the people against a candidate before an election, as all of us, perhaps, well know; and who that would tell a lie before an election, would not do the same thing after it, if he could thereby effect the same object?"

So, sir, in a case of this kind, where it is only contended that the testimony must be received from the necessity of the case, because there is no other way to get at the facts, if the doctrine is sound that the testimony cannot be received, much more is it true that there is no reason for its admission where the declarations, if made, were made in open meeting and must have been heard and known by others. It was a mere casual remark of a judge of election not made under oath. Sir, is it to be admitted here as safe ground for us to proceed

upon, that a man may be unseated in this house because a judge of elections may have falsely, perhaps corruptly, made a statement during the progress of an election in reference to it? Is that a ground upon which gentlemen can expect us to vote against the sitting member? Are our rights dependent on such slippery foundations as this?

Mr. CLARK B. COCHRANE. For the purpose of deciding my own vote, I would ask the gentleman whether these facts set forth in the report of the majority of the committee, the facts concerning the precincts of Florence, Monroe, and Cleveland, depend entirely upon ex parte evidence?

Mr. WASHBURN, of Maine. Entirely, and upon testimony taken, as I have stated, under notices left at what was called the last and usual abode of Judge Ferguson, at a house vacated by him before they were thus left and in the possession of another man.

Mr. BOYCE. In a case of this character, it seems to me that a sitting member should not be dispossessed of his seat upon doubtful testimony. The party contesting ought to make his case out clearly. Questions like this, too, ought to be decided according to justice and their merit, without paying too much attention to mere technicalities. Several technical points have been raised here and strenuously insisted on by the gentleman from Indiana, [Mr. Wilson.] It has been said that the managers of the election were not sworn in by the proper officers. Who swears them in? Notaries public. I am not clear that notaries publie had not a good right to swear them in. What does the law say? That the managers shall be qualified by subscribing to the following oath, by any person authorized by law to administer oaths.' The question of notaries public administering oaths was not mooted in the Territory at the time of this election. Since then a decision has been made, in an attachment case, that a notary public cannot administer an oath necessary to institute the proceedings, and that their power to administer oaths is confined to commercial matters. I see no reason why a notary public could not swear in the managers of the election. It seems to me that any person who had a right to administer oaths could have sworn in these managers. The law required the managers to swear that they "would faithfully discharge the duty of inspectors of elections, according to law, and the best of their ability.”

On motion of Mr. Cochrane, (February 10, 1859,) the House laid the whole subject upon the table-ayes 99, noes 93.

NOTE.-The debate upon this case will be found in vol. 38, part 1. For the report: Mr. Wilson, page 914; Mr. Gilmer, page 941. Against the report: Mr. Washburn, pages 916, 942; Mr. Boyce, page 919.

The sitting member asked an extension of time to take testimony. The House refused. Upon the main contest, where the law or the custom fixed the election at a certain place, and it was held at another, two miles distant, the committee rejected the vote.

The law requiring that the board of inspectors shall consist of three persons, and but two officiated, the vote was rejected.

Under the law of Michigan, to be entitled to vote, a man must have come into the State and township, or ward, with the intention of making it his permanent residence.

Gross irregularities and palpable violations of law in conducting an election in a ward should cause the exclusion of the entire poll.

IN THE HOUSE OF REPRESENTATIVES,

MARCH 15, 1860.

Mr. CAMPBELL, from the Committee of Elections, made the following report: That they have considered an application made by the sitting member to them to ask of the House, in his behalf, leave to allow further testimony to be taken, pursuant to the proviso in the 9th section of the act of February 19, 1851. This being an application amounting to a continuance of the cause until a future day, it was deemed proper to settle it before deciding upon the merits of the case as presented in the issues, the allegations, and proofs of the respective parties. Mr. Cooper presented this application on the 5th of March instant, more than sixteen months after the election was held, and more than fourteen months after notice of contest; more than thirteen months after his answer had been served upon the contestant; more than eleven months after the time for taking testimony under the law had expired, and after one-half of the time of the service of the Congress had elapsed; he never having previously examined any witness or taken any testimony in his own behalf, or given any notice of his intention or wish to do so. And yet it appears he was present by counsel more than eleven months before he made this application, at the taking of all the testimony in the case, and cross-examined every one of contestant's witnesses, but offered none of his own.

If this does not present a clear case of laches on the part of the sitting member, the committee are at a loss to know what conceivable state of facts would make one.

The memorial or application of the sitting member is accompanied by twentynine ex parte affidavits, (taken without notice to contestant,) and embraces two distinct requests, urging that one or the other be granted, viz:

First. That the affidavits be received as evidence in the cause, and made part of it; or, if this cannot be done, then

Secondly. That such time be granted as will enable the sitting member to take the necessary steps to secure the testimony of the witnesses embraced in the affidavits. The contestant resisted this application, and read and filed an argument with the committee. The memorial, the said affidavits, and the arguments are herewith submitted.

In support of the application, the sitting member seems to rely mainly on the fact that the testimony in the cause was taken during the last part of the time allowed by law for examining witnesses. But the act of Congress referred to provides for taking testimony by both parties at the same time, by requiring the notice of contest and answer to state fully the grounds upon which the parties rely, and also that ten days' notice of the time and place of taking testimony, and the names of all witnesses, besides authorizing both parties to appear by agent or in person, as they may see proper.

In the case of Vallandigham vs. Campbell the committee said, (and they were sustained by the vote of the House,) "However extensive the time covered by one party in proposing to take testimony, it in nowise precludes the opposite party from proceeding at the same time to take it in his own behalf."

In that case testimony had been taken the very last day by the contestant, and his notices not only covered almost all the time allowed by law, but he had so laid them one upon another as to employ "the full period of sixty-six days." In the case now under consideration only twenty-two days of the sixty allowed by law were consumed by contestant for all his notices and the taking of his testimony. The sitting member could have had the exclusive use of thirty-eight of the sixty days, and he was in no way "precluded" from proceeding to take testimony in his own behalf during the other twenty-two days covered by the