been given for him, and which he contended the depositions showed were illegal votes, the voters not possessing the requisite qualifications. The committee, however, deemed this species of evidence inadmissible, and did not, therefore, investigate the votes of the sitting member objected to under this head. This decision confined the inquiry to cases of bad or illegal votes alleged to be found on the polls of the parties respectively, as proved by other evidence than the declarations of the voters. After a careful examination of the proofs on both sides, the committee find nineteen votes (see list marked A) which they consider bad, and which are sufficiently proved to have been given for the sitting member. That number, therefore, ought to be deducted from his poll. They also find eight bad votes, proved by the same sort of evidence, to have been given for the petitioner, and which are to be taken from his poll; leaving the difference eleven, and exceeding the sitting member's majority of seven, as returned, by four votes. To these the committee have thought proper to add three votes as given for the petitioner at Henderson precinct, in Buncombe county, and stricken from his poll by the judges at Asheville on comparing the polls the day after

the election.

The law of North Carolina gives no power to the judges at one place of election to strike off votes or in any manner alter the return of the judges of any other place of election; nor could the judges at the Henderson precinct, after taking the votes as legal, decide themselves, or authorize the judges at Asheville to decide, that they were illegal. Having been received at the time of the election, the petitioner is entitled to them, unless they are proven to be bad; no such proof was presented. This makes the petitioner's majority seven. To this the committee have added five votes, (see list A,) as having been legally offered for the petitioner, and illegally refused; thus making his majority twelve. The committee return also herewith a list of the votes contended by the petitioner to have been illegally given to the sitting member, under that species of evidence rejected by the committee, of declarations proved to have been made by the voters, (marked B,) so that the House, if they should deem such evidence improperly rejected by the committee, may, by resorting to the depositions, ascertain the sufficiency of the proof. They also return, filed herewith, papers marked C and D, showing the objections of petitioner, and the votes claimed by him; said papers, and paper B, being presented by him. It appears from the evidence, that at Franklin, in Macon county, some ballots for members of Congress were put by mistake in the boxes for receiving votes for the State legislature, and some ballots for members of the State legislature into the box for members of Congress; the election for both the State legislature and Congress being held at the same time and place, the boxes being in the same room for receiving the ballots, and about seven or eight feet apart.

The testimony of Robert Hall, one of the judges, is, that he and the other judges, hearing of votes being put in the wrong boxes-that is, some in the legislative boxes that were intended for members of Congress, and vice versa― had them changed. He does not state how many ballots were thus changed, nor who they were for. Another witness, James W. Killian, says he saw the exchange of tickets at the close of the election, and that five or six for Newland were taken from the legislative box, and perhaps some for Graham, he does not recollect; and some were taken from the Congress box, in like manner, and transferred to the legislative box. It appears, then, that the judges of election corrected what they were all satisfied was a mistake, by transferring the ballots into the right boxes from those in which they had been by mistake deposited. Robert Hall further states, that it is customary to correct such mistakes; and it is easy to conceive that such mistakes might, under such circumstances, be committed, which the judges, before counting the ballots, might correct. There is no positive proof to show how many ballots were thus exchanged, nor who they were all for. Killian says there were five or six for Newland, and perhaps

some for Graham, he does not recollect. It would therefore be difficult, in the opinion of the committee, if not impossible, from the testimony, to determine accurately how many of the five or six proven to have been for the petitioner should be taken from his poll, if it should be thought that any should be deducted, as it is left quite uncertain whether there were not some for the sitting member. The judges no doubt acted in good faith; the mistake appears to have been corrected by them on the spot, and with every means of ascertaining the fact of the mistake, and without objection, and in a manner usual, as stated by Hall, on such occasions. If the House should think it right, under these circumstances, to interfere with their decision in correcting this mistake, the five or six votes thus given by the judges to petitioner can be deducted from the amount of his majority before mentioned. The committee found, on referring to the case of Washburn and Ripley, (Contested Elections, page 679,) that the House had refused to interfere with a decision of the judges of election in that case, who declined correcting the mistakes made in that election, by depositing the ballots in the wrong boxes. The judges of this election in Maine, it seems from this case, did not consider it to be in their power to correct such a mistake. They may have considered that they had no means of ascertaining whether it was a mistake or not. It appears, from that case, that the ballots are put into the boxes by the voters themselves; and it would seem, from several of the depositions in this case, that the ballots were usually handed to one of the judges or inspectors of the election, and by him deposited in the ballot-box, as the law of North Carolina requires. In this case, then, the mistake having been made by one of the judges, and not by the voter, who had done everything in his power towards the fair exercise of his privilege, the judges have considered it their duty to correct their own mistake, and give the voter his vote; and as they have considered that they had the means of fairly correcting the mistake, they proceeded to do so openly, and without objections of the friends of either of the candidates. Under such circumstances, the committee leave it to the House to say whether their proceeding should not be respected, and their return allowed to stand as they have placed it. Several objections were made by each of the parties to certain alleged irregularities in the proceedings of the officers by whom the elections were held at several places of voting in the said district. As, however, the committee entertain no doubt as to the fairness of the elections, and the integrity and impartiality of the officers, and as no objection appears to have been made at the time to the particular proceeding or formality which is now objected to, they have considered it unnecessary to say anything further as to those objections, than that the proceeding complained of might be deemed to have been waived or assented to, and are not, in the judgment of the committee, sufficient to affect the validity of the election, or to change the result to which the committee have arrived. On the whole, the committee submit the following resolutions :

1. That James Graham is not entitled to a seat in this house.

2. That David Newland is entitled to a seat in this house.

In the House a motion was made to give the sitting member further time to take testimony; but it was lost.

Mr. RENCHER, of North Carolina, moved the subjoined resolutions:

1. Resolved, That the depositions which have been communicated to the House by the Speaker, and laid on the table since the report of the Committee of Elections was made, whenever taken upon due notice, will be received by the House as testimony in this case. 2. Resolved, That the five votes taken from the commons box at the Franklin precinct, in Buncombe county, and counted for the petitioner, ought not to be counted.

3. Resolved, That the three votes which were stricken from the petitioner's roll by the judges at Asheville, in Buncombe county, because it appeared by the return of the judges from the Henderson precinct that those of the votes given the petitioner were given by voters living

in Yancey county, and which have now been added to his poll by the committee, ought not to be allowed.

4. Resolved, That two votes (to wit, Robert Lankford and George Barkley) stricken from the roll of the sitting member by the committee, on the ground that they voted out of their proper county, ought to be restored, because there is no proof that they lived out of the county in which they voted.

5. Resolved, That two votes (to wit, Moses Pace and Andrew Morrison) which were proven by parol testimony to have been given for James Graham, out of the county in which they reside, and on that account have been stricken from his poll by the committee, ought to be restored, because it does not appear from the poll-books themselves that either of these

men voted at the election.

6. Resolved, That William H. Milton ought to be stricken from the poll of the petitioner, because it appears that he had not paid a public tax.

7. Resolved, That the five votes found on page 6 of the report, which have been counted for the petitioner, but which were not given in at the polls, ought not to be counted.

8. Resolved, That there is no evidence that these men were qualified to vote, not having lived in the county where they offered to vote twelve months immediately preceding the day of election, as required by the constitution of North Carolina, or that they tendered their votes as required by the law of that State.

They were decided by the Speaker to be out of order, and the House was brought to a direct vote upon the first resolution of the committee-that Mr Graham, the sitting member, was not entitled to his seat. The vote stood, yeas 114, nays 87. Upon the second resolution, that Mr. Newland was entitled to the seat, the vote stood, yeas 99, nays 100. The seat was then declared vacant.

NOTE.-The debate upon this case covered a period of several months, and was, for the most part, upon preliminary questions. Mr. Newland's speech will be found on page 240, volume 3, Congressional Globe; Mr. Graham's on pages 240 and 241. The running debate upon the case occupies from page 240 to 272, volume 3, Congressional Globe.

TWENTY-FIFTH CONGRESS, FIRST SESSION.

Committee of Elections.

Mr. A. BUCHANAN, Pennsylvania. Mr. TowNES, Georgia.

GRIFFIN, South Carolina.

HAWKINS, North Carolina.

KILGORE, Ohio.

MAURY, Tennessee.

BRONSON, New York.

PENNYBACKER, Virginia.
HASTINGS, Massachusetts.

THIRD SESSION.

Messrs. RIVES, of Virginia, and SWEARINGEN, of Ohio, in place of KILGORE and PENNYBACKER.

Messrs. GHOLSON and CLAIBORNE, of Mississippi.

The President having called an extra session of Congress before the regular congressional election in Mississippi, the governor of that State issued his proclamation for a special election of members for the called session only. The committee and the House held that the members elected-Messrs. Gholson and Claiborne-were entitled to seats during the entire 25th Congress.

At the second session two contestants appeared with credentials, showing that they were elected at the regular November election in Mississippi. The House rescinded its action during the first session, and vacated the seats.

The facts in this case are simple. The President of the United States called Congress to meet in extra session in September. The State of Mississippi was without representation in the House of Representatives, not having held its regular congressional election. The governor of the State issued a proclamation fixing a day for an election of members for the extra session. The election was held, and Messrs. Gholson and Claiborne were returned. When their names were called at the organization of the House, objection was made, but it was overruled, and the subject was referred to the Committee of Elections. Their report was as follows:

IN THE HOUSE OF REPRESENTATIVES.

SEPTEMBER 25, 1837.

Mr. BUCHANAN, from the Committee of Elections, to whom the subject had been referred, made the following report:

They find a clause in the Constitution of the United States as follows: "When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." They also find that, by the same instrument, "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof."

They also find certain sections extracted from a law of the State of Mississippi, in the following words:

AN ACT to regulate elections in this State. Approved March 2, 1833.

SEC. 1. Be it enacted by the legislature of the State of Mississippi, That all elections for representatives to the legislature shall be held at the court-houses or places of holding courts in the several counties of this State, unless otherwise specially provided for by law. And the times of holding such election shall be the first Monday and day following in November biennially. And all elections for senators in the legislature, for governor, representatives to Congress, sheriffs, coroners, and all other State and county officers directed by the Constitution to be biennially elected, shall be held at the same places and on the same days of the year in which they are respectively chosen, as are therein directed in the case of representatives to the legislature.

SEC. 2. The sheriff of each county in this State shall, at least thirty days previously to the time for holding any election in his county, by advertisement, set up at the door of the court-house and three other public places in his county, notify the inhabitants of the time and place or places of such elections, and what offices are to be filled by such election; and the sheriff, on the days of election, shall open the poll at ten o'clock in the morning and continue the same open until four o'clook in the evening of each day, and no longer. In case a vacancy happen, and a writ of election shall be issued to the sheriff, the sheriff shall advertise the said election, and give a time as near the thirty days as the period of elections will allow, provided it be not less, in any case, than ten days.

SEC. 7. The representatives to Congress from this State shall be elected by the qualified electors, at the time of choosing representatives to the legislature, once in every two years, to be computed from the first Monday in November, in the year 1833; and the returning officer in each county shall, within fifteen days after each election, certify under his hand and seal to the secretary of state the whole number of votes given in his county to each candidate for Congress; and it shall be the duty of the secretary of state to sum up the whole number of votes thus returned, and declare the candidates elect, who may have the greatest number of votes, by publication in some newspaper published at or nearest to the seat of government. It shall be the duty of the governor to deliver to the persons duly elected proper credentials, under his hand and the great seal of the State, which shall entitle them to a seat in the body of which they are elected members.

SEC. 10. All elections for governor, representatives to Congress, sheriffs, and other county officers, shall be held and conducted in the same manner; provided, that the returns for every election for governor shall be made in the manner prescribed in the Constitution.

The committee further find that the governor of the State of Mississippi issued writs of election in form as follows, viz:

By Charles Lynch, governor of the State of Mississippi.-To the sheriff of

greeting:

county,

Whereas the President of the United States has convoked Congress to meet on the first Monday of September next; and whereas a vacancy has occurred in the representation of the State of Mississippi in the House of Representatives of the Congress of the United States, by the expiration of the term of service for which Messrs. Claiborne and Gholson were elected:

I do therefore issue this writ, authorizing and requiring you to hold an election in your county on the third Monday and day following in July next, for two representatives to Congress, to fill said vacancy, until superseded by the members to be elected at the next regular election on the first Monday and day following in November next; and I do moreover enjoin you to conduct the same, in all respects, conformably to law, and make due return thereof to the secretary of state.

In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of State, at the town of Jackson, this 13th day of June, 1837.

It appears by a certificate of the secretary of state, that elections were held in fifty of the counties of the State of Mississippi, the result of which was, that the sitting members were elected by large majorities.

From a consideration of the foregoing documents and circumstances, it would seem as if the people of Mississippi had a fair and full opportunity of expressing themselves as to who should represent them in the twenty-fifth Congress. No objection is made from any quarter to the right of the gentlemen elect to their seats, only by and through themselves: on account of the peculiar circumstances under which the election was held, their own delicacy and sense of propriety have prompted them to invite a scrutiny into their right to seats in this House. In the course of the scrutiny and investigation, the attention of the committee has been called to two points, which are supposed to comprehend the only possible objections to the retention of their seats by the sitting members. The first point is that clause of the writ issued by the governor, wherein the election is directed to be held for two representatives in Congress, to fill the vacancy until superseded by the members to be elected at the next regular election, on the first Monday and day following in November next. The committee are (with one exception) of opinion that in attempting to restrict the term of service of the members to be elected at the special election ordered as before stated, till the next regular election in November next, the governor transcended his powers. The gentlemen elected are members for the whole unexpired term of the twenty-fifth Congress, or they are not members at all. The question then recurs-Did that illegal and restricting clause in the writ invalidate the election? The committee were almost unanimous in the opinion that inasmuch as the writ was perfect in itself without that clause, its being there does not invalidate the election held under it, but may fairly be rejected as surplusage: reject this as surplusage, then the writ is good, and the objection amounts to nothing.

But the second objection, which would seem to be more formidable, involves the question whether, in the purview and meaning of the Constitution, such vacancy in the representation of the State had happened as would justify the governor in authorizing a special election to fill it. On this question the committee were divided. A majority of them were of opinion that a vacancy existed, and such a vacancy as was pregnant with all the evils which could arise from a vacancy happening in any other manner; and as the words of the Constitution are broad enough to embrace the existing case, there is no good reason why, in giving them a practical construction, they should not be considered applicable as affording a remedy in this case as well as those arising from death or resignation. It is evident that all the evils arising from vacancies by death or resignation would exist in a vacancy produced by the expiration of the term of members prior to the election of their successors; and as the words used by the framers of the Constitution will fairly admit of the construction contended for,