their right to the seats; this was set forth fully in the exposition of facts which they submitted to the committee at an early stage of the proceedings. The House cannot fail to observe how admirably the rule of negative proof is fitted to embarrass one side of this controversy, and to fortify the position of the other side; but, nevertheless, it is the duty of the party thus embarrassed to submit to the evil, if the rule itself be founded in law. But we insist that it is not so founded. No precedent can he found of the application of such a rule to such a case. The party having the affirmative of the issue takes the burden of proof. A foreigner comes to the polls and votes: you can prove that he is such, but how can you prove that he has not been naturalized? Perhaps he may be willing to testify, and then you may prove the fact by his own oath. But suppose he is dead, or has removed away, or chooses to stand mute; he cannot be put to the question he cannot be compelled to criminate himself. The rule imposes on the party objecting the necessity of searching all the records in the Union, and of getting the testimony of every record-keeper to prove the fact. This is manifestly impossible. No man in his senses can believe that any such rule exists. It is a principle of the law of evidence "that the affirmative of the issue must be proved; and he who makes an assertion is the person who is expected to support it, before he calls on his opponent for an answer." And again: "the burden of proof lies on the person who has to support his case, by proving a fact of which he is believed to be cognizant." (Vide Rogers's Law and Practice of Elections, pages 114-117.)

To suppose any member of the committee to be ignorant of a rule of law so old and universal, and founded in so much good sense, would be to justify his integrity, and maintain his impartiality, at the expense of his judgment, and of every qualification required for the proper discharge of the duties of a committee on elections. We disclaim all design of charging the course adopted by the majority to corrupt intentions, but we are very reluctant to embrace the other branch of the alternative; and conclude, therefore, that some strange prejudice must have taken possession of the mind, and led the judgment captive at will. But not only did the committee adopt a very extraordinary rule, but they applied it to the case in a very extraordinary manner; and they essentially aggravated the evil which that rule was adapted to inflict. For they held votes to be lawful on account of the absence of proof of non-naturalization in cases where

1. The election officers decided that aliens had a right to vote according to law, and avowedly admitted them to vote on that ground.

2. Where aliens were summoned before the magistrates who took the evidence, and where they refused to attend, or, if they attended, stood mute as to their right.

3. Where the two circumstances above indicated were combined, as they were in many of the cases submitted to the committee.

4. Where aliens produced at the polls, as evidence of naturalization, a declaration of an intent to become naturalized at a future period; which we all know is a mere preliminary step to, but is not naturalization itself.

In many cases the committee held votes to be lawful where all the above circumstances were united against the voter; and we should be wanting in duty to the contesting parties, to the people of New Jersey, and of the whole country, if we did not bring the conduct of the majority, in this particular, distinctly to the notice of the House.

The House adopted the report of the committee without debate-yeas 101, nays 22; just a quorum, a large number of the members declining to vote. The minority report claimed that three only of the "whig contestants" were entitled to seats, but did not recommend any specific action to the House.

NOTE.-The debates and reports in this celebrated case are so voluminous that no attempt has been made to extract from the former, or to give the latter in full. The reports and evidence will be found in full in Reports of Committees, 1st session 26th Congress, vol. 2, p. 506; vol. 3, p. 541.

The debate lasted from December 2, 1839, to July 17, 1840-the first fortnight without intermission of a day. No speeches were made upon the main report. The entire debate will be found in volume 8 of the Congressional Globe, 1st session of the 26th Congress.

TWENTY-SIXTH CONGRESS, FIRST SESSION.

INGERSOLL vs. NAYLOR, of Pennsylvania.

Where extensive frauds were alleged the committee refused to receive hearsay evidence. A political census taken was considered too vague and uncertain upon which to base a judicial decision.

IN THE HOUSE OF REPRESENTATIVES.

JULY 17, 1840.

Mr. FILLMORE, from the Committee of Elections, made the following report: That the respective parties to the contest, at the request of the committee, stated in writing the grounds on which they relied, and were then authorized by the committee to take their evidence by deposition. The testimony thus taken, together with numerous records from the prothonotary's office, was laid before the committee, and the argument upon the same closed on the 29th day of May, 1840; when Mr. Medill moved that the depositions in the case be printed. Mr. Fillmore moved, as a substitute, that the committee would then proceed to decide the case; and the question being taken on Mr. Fillmore's substitute, it was lost by a tie vote-Mr. Botts being absent; and consequently there being but eight members present. The motion of Mr. Medill was then adopted by a vote of five to three.

The committee then proceeded to an investigation of the New Jersey case, in which they were engaged every day until late on Saturday night of the 11th instant. On the Monday following this case was again taken up; and on Tuesday, the 14th, the committee, on motion of Mr. Botts, by a vote of five to three, adopted the following preamble and resolution :

Whereas, in the opinion of this committee, no evidence of fraud or illegality has been exhibited sufficient to justify a recommendation to the House of Representatives to set aside the election held for the third congressional district of the State of Pennsylvania, in the year 1838:

Resolved, therefore, (as the opinion of this committee,) That Charles Naylor, esq., was duly elected a member of the 26th Congress of the United States; and that the chairman of the committee be instructed to prepare a report to that effect, to be presented to the House of Representatives.

At the request of the chairman, who was at that time engaged in preparing a report on the New Jersey case, Mr. Fillmore consented to act in his place, and has prepared the report which is now presented to the consideration of the House.

The testimony in this case is very voluminous, comprising five hundred and forty-two printed pages, besides large bundles of manuscripts, which the committee deemed it unnecessary to print. The late day at which the committee came to this decision, with the press of business incident to the close of a proH. Mis. Doc. 57- -3

tracted session, precludes the idea of entering into and analyzing this undigested mass, the material portions of which are now ready to be laid before the House. Without dwelling longer upon this subject, the committee proceed to make a few remarks upon the merits of the controversy. Mr. Ingersoll having the affirmative, limited the grounds of his complaint to the election district of Spring Garden, and to five of the seven wards of the incorporated district of the Northern Liberties. As to the five wards of the Northern Liberties, he alleged, in substance, that by a conspiracy among the election officers to carry the election by fraud, many hundred names were illegally and fraudulently added to the registries of voters, being the names of persons having either no existence or no right to vote, whose votes, or pretended votes, were nevertheless counted and allowed to Mr. Naylor.

A large amount of hearsay evidence was brought forward to sustain this among other allegations; but it was of that character that the committee do not deem it worthy of any consideration or credit; and the most material parts of it were fully contradicted by competent and unimpeached testimony on the other side. The rule upon which the committee reject all this hearsay evidence they conceive too well settled and too clear and just to require any argument. If all experience has shown that in the administration of justice in the most petty and trifling matters between man and man there is no security for truth without the sanction of an oath, every one must admit that in a controversy which enlists the strongest passions of our nature, often stimulated by ambition and partisan prejudice and animosity, we cannot safely dispense with this great security. If evidence of this character were received, it might be manufactured with impunity to any amount, and no representative could be secure of his seat for a single day.

Mr. Naylor's majority is 775. No attempt was made by direct evidence to purge the polls; nor has the petitioner shown, or attempted to show, that a single illegal vote was received by the officers of election, or a single fictitious one allowed to the sitting member. Though the addition of a large number of names to the register in one of the wards in Spring Garden, by the officers whose duty it was to prepare it, was a suspicious circumstance, requiring careful scrutiny; yet, as the error, if any, was corrected before the election commenced, and as there is no proof of any illegal vote having been given in that ward at that election, the committee do not see how this fact can possibly be invoked to affect the result.

The attempted political census, had it been otherwise competent, was clearly too vague and uncertain to lay the foundation for any judicial decision; all the material facts in it come under the general denomination of hearsay evidence of the most loose and unsatisfactory kind; and, besides, when contrasted with the other authentic evidence, it becomes utterly worthless. The inductive evidence attempted to be drawn from the registry, as to the number of persons who voted, and of their qualifications, is little more satisfactory. There is no necessary and legal connexion between the names and number of persons who voted and the checks on the registry. The window-list is the true record to determine, not only the names of those who voted, but more especially the number. This is well illustrated by the attempt to show, by calculation, that there were 1,076 persons who voted that were not registered; whereas, by a comparison of the names on the window-lists with those on the registers, the result was shown to be utterly fallacious, and that there was not a single person who voted that was not registered. Surely, arithmetical calculations founded upon such uncertain and unsatisfactory bases are wholly unworthy of credit.

The petitioner also charges a number of small irregularities in conducting the election and counting the votes, consisting mainly in slight deviations from the strict requirements of the law. There is no proof that any injustice was done

or fraud intended; and, as there was manifestly a substantial compliance with the law, the committee do not conceive that it could be for the advancement of substantial justice to entertain objections of this kind. Our election laws must necessarily be administered by men who are not familiar with the construction of statutes; and all that we have a right to expect are good faith in their acts, and a substantial compliance with the requirements of the law. The evidence clearly justifies the committee in coming to this conclusion. It seems there was no essential difference, in this respect, as to the manner in which the election was conducted in these districts, and in those of which no complaint is made but it is in proof, by an officer who had long officiated in these elections, that it was conducted as the elections in that county had been conducted for the last thirty years.

;

As to the district of Spring Garden, the chief allegation made by the petitioner is, that the officers of that election, in order that they might carry the election for Mr. Naylor, were not sworn; and that therefore it should be set aside.

The chief witness (and indeed the only one) by whom this allegation is attempted to be sustained, is William G. Conrow, one of the officers of the election, and the return judge of the district. As this is almost the only evidence introduced on the part of the petitioner that comes directly to the point in issue, the committee deem it worthy of a brief examination.

It appears from the depositions that, on the 27th day of March last, Mr. Ingersoll called Mr. Conrow as a witness, who was then "duly affirmed." He was then interrogated, on behalf of Mr. Ingersoll, to know whether the election officers of Spring Garden were sworn or affirmed; and declined answering, for the alleged reason that "no persons had a right to answer questions to criminate themselves, or make them appear notorious."

On the 30th of the same month he was re-examined by Mr. Ingersoll on the same affirmation, but said nothing as to the qualification of the officers at Spring Garden. Subsequently the following named officers of that election, namely, John Stout, jr., Daniel R. Erdman, John Sloan, David Woelpper, John Ď. Ninesteel, Joseph T. Rowand, Jesse Williamson, and Daniel J. Weaver, were called and examined as witnesses on behalf of Mr. Naylor, and testified, in substance, in the most direct and unqualified manner, that all the election officers of Spring Garden, including themselves and Mr. Conrow, were duly sworn or affirmed, according to law; that they, respectively, signed in duplicate the oath or affirmation which they had taken; and that the election had been, in all respects, legally and fairly conducted.

Nicholas Esling, esq., the justice of the peace who qualified them, also testified that he administered the oaths and affirmations to "all the officers in that district, according to law, before the opening of the polls; and that after the oaths and affirmations had been signed by the respective officers to whom they were administered, he certified them according to law."

It was also proved that Mr. Conrow had stated that he filed the oaths and affirmations in the court of common pleas; and James Hanna, another witness, stated that he was confident that he had seen them. But it is said that the oaths and affirmations required by law are not now to be found in the office of the prothonotary of the court of common pleas. This would be a circumstance of some importance, did it not also appear that the papers in this case had been taken before a committee of the Senate, at Harrisburg; and that they were so negligently and carelessly kept by the prothonotary, that they were permitted to be carried out of the office by different persons. Indeed, it appears from the testimony of the present prothonotary, that when he came into office some of these election papers were out, and remained out for some months; and he seems to be a little uncertain where they were, or who returned them. The

fact that any of these papers are missing under such circumstances is certainly very slight evidence to show that they were never there.

After the examination of the above-named witnesses, Mr. Conrow was again called by Mr. Ingersoll, and testified that the other election officers of Spring Garden, besides himself, were either sworn or affirmed "to do justice to their party this [that] day;" that this mock-oath was administered by Nicholas Esling, esq., "either on a Philadelphia Directory, or the Narrative of the Sufferings of some shipwrecked mariner."

This statement, with some others, it appears by the cross-examination, was read by the witness from a paper which he held in his hand and taken down by the commissioner. Mr. Naylor's counsel asked to see this paper, that he might ascertain in whose handwriting it was, and annex it to his deposition. This the witness declined, and said: "I can't let it go, sir. I write two different ways. 1 sometimes give my writing the wrong position. Every word of it is written by myself; every word and letter of it made upon my desk." He was asked the following question: Before you were examined the first time, you were solemnly affirmed to tell the truth, the whole truth, and nothing but the truth; why did you not, under that solemn obligation, at your two first examinations, disclose what you have here, at your third examination to-day, related the first time?"

To which he replied, "I thought it might be necessary to hold back some things AS REBUTTING TESTIMONY. I wished to say as little as possible on this subject."

He denies all knowledge of any fraud or unfairness in the election. From all this, it is contended (and with much truth, in the opinion of the committee) that the testimony of this witness, independent of the contradictory evidence, is open to suspicion. It is fair to be inferred, from his first examination, that there was some unkind feeling between him and Mr. Naylor. His refusal to testify to these facts when first called, and holding them back when under solemn affirmation to tell the whole truth, for the avowed purpose of using them as rebutting testimony;" his reading his testimony from a paper, which he refused to show, and which there is reason to suspect was not in his usual handwriting; and his solemn affirmation (as may be seen by the evidence) that no regular district return, under the hands of the officers, was made out, whereas this original return, under his own hand and seal, has been produced to the committee; and, finally, his own participation in the act; we say that all these circumstances very properly throw a strong shade of doubt over the credibility of this witness. But when, in addition to that, he stands directly confronted and contradicted by a large number of unimpeached witnesses, the committee would do violence to all the known rules of judicial investigation if they did not pronounce his evidence as wholly unworthy of credit. The story itself is extremely improbable. That so many men, thought worthy of official trust by their fellow-citizens, should, in the presence of each other, unblushingly submit to such a profane degradation as that mock-oath implied, and that such an oath should be administered and taken, and yet no fraud perpetrated or attempted, is (to say the least of it) approaching to the marvellous. Why was a profane book used for an iniquitous oath? Really, it seems to us to require better proof than this, even without contradiction, that twenty gentlemen, (that being the number of officers,) who had hitherto sustained good characters for probity and honor, should voluntarily become the actors in a scene so blasphemously immoral. But it is a relief to the mind to feel that the contradictory evidence is so ample that no doubt remains.

The committee would be happy to touch upon other points in the testimony did time permit-not so much because they deem them important, as to show that they had not been overlooked in coming to this conclusion.