precedent, as other territorial governments have been formed, and became entitled under their organic law to legislative assemblies, Congress has uniformly provided by law for the election of a delegate with similar privileges. In some instances the law has provided that the delegate should be elected by the territorial legislature, and in others by the people included under the government. But in every case the delegate admitted has been chosen under laws previously enacted by Congress, and from a government subordinate to and emanating from the Constitution and laws of the United Sta ts. So uniform has been this usage, and so well understood, that by the act of Congress () March 3, A. D. 1817, the term of office and the privileges of such delegates were expressly defined. That act, however, speaks only of delegates from temporary governments then established, or which might thereafter be created, and which were or might be thereafter authorized by act of Congress to send delegates. No provision was made for any other. It was not contemplated that there could be any other. It may, therefore, safely be averred that the basis upon which rests the admission of a territorial delegate, if not constitutional, is fundamental. There have been political organizations in parts of the unorganized territory of the United States, but none such have been permitted to enjoy representation here. The case of Almon W. Babbitt, who claimed to be admitted as a delegate from Deseret during the last session of this Congress, is in most respects similar to this. In that case a State government had been formed, and Mr. Babbitt had been elected by the legislature, but this house refused to admit him to a seat. The case of Hugh N. Smith, already mentioned, affords another instance of the adherence of the House to the unbroken usage of past years. If it be regarded as a question of expediency, both his case and Mr. Babbitt's in many aspects presented stronger claims than the one now under consideration. The one was elected by a convention-the other by the people in mass. In both these cases, appealing strongly, as they did, to the discretion of the House, no departure was permitted from former practice. Precedents so numerous, usage so unbroken, extending through all our past history, should have controlling influence. in the exercise of the discretion of the House. Unlike all who have been admitted as territorial delegates, Mr. Messervy founds his application upon neither the Constitution nor laws of the United States. His election was not subordinate to, but in disregard of them-in hostility even to the territorial government subsequently formed by Congress.

The argument in favor of the applicant is, that the resident population of New Mexico should be represented. As already observed, it is neither the theory nor the practice of our government that any individuals living under no political organization should enjoy either complete or partial representation. The admission of such a principle would be eminently dangerous. Your committee, however, do not propose to discuss the evils which would inevitably follow the establishment of such a precedent. They have already done this in a report heretofore submitted to the House, which received its sanction. It should, however, be remembered that the supposed necessity which was averred to exist in the case of Mr. Babbitt and Mr. Smith has no existence in this case. Provision has already been made by law for a territorial delegate. The act of Congress of September 9, A. D. 1850, provided for the establishment of a territorial government over New Mexico. The fourteenth section of that act authorized the election of a territorial delegate, and provided that the first election should be held at such time and places, and be conducted in such manner, as the territorial governor should appoint and direct, and that at all subsequent elections the times, manner, and places should be prescribed by law. True, the provisions of that act were suspended until the boundary between the United States and the State of Texas should be adjusted; but that boundary having been determined, the act is now in force. There is, therefore, at this day provision made by law for territorial representation of New Mexico. It necessa

rily negatives both the legality and expediency of any other. Mr. Messervy has no pretensions to having been elected under this organic law; but, on the contrary, his credentials are in antagonism to it. Were he admitted to the seat which he claims, there would be no legal impediment to the admission of another delegate from the Territory of New Mexico. It may be, indeed, that no such delegate will appear during this Congress; and should such be the case, your committee are unable to perceive that any serious evils would result either to New Mexico or to the country at large. Certainly no such overruling necessity is shown to exist as should induce the House to disregard a uniform usage of more than sixty years, and establish a precedent which may lead to unending confusion in the future.

Your committee unanimously recommend the adoption of the following resolution :

Resolved, That William S. Messervy, esq., be not admitted to a seat in the House as a delegate from the Territory of New Mexico.

The case was not acted upon in the House.

THIRTY-SECOND CONGRESS, FIRST SESSION.

Mr. DISNEY, Ohio.

ASHE, North Carolina.
WILLIAMS, Tennessee.
HAMILTON, Maryland.

Committee of Elections.

SCHERMERHORN, New York.

Mr. CASKIE, Virginia.
EWING, Kentucky.
DAVIS, Massachusetts.
GAMBLE, Pennsylvania.

WRIGHT 8. FULLER, of Pennsylvania.

The intent of the law, requiring notice to be given specifying the particular grounds of the contest, was to prevent any surprise being practiced upon the sitting member, and to put him upon a proper defence. It is not necessary to furnish the incumbent with a list of alleged illegal voters.

A contestant can take evidence touching the qualifications, duties and acts, and conduct of officers conducting an election.

The House is compelled, when adjudicating in any matter affecting the elections, returns, or qualifications of any of its members, to make the law of the respective States, from which such members may be returned, its rule of action.

A judge of an election cannot usurp the duties of an inspector.

The House laid the whole subject upon the table.

IN HOUSE OF REPRESENTATIVES,

APRIL 22, 1852.

Mr. ASHE, from the Committee of Elections, made the following report : The petition of the contestant, with all of the accompanying papers, was referred to the committee on the 10th of December last, since which time the committee have been most assiduously employed in the examination of the testimony taken in this case under the provisions of the act of last Congress, regulating the mode and manner of taking evidence in contested elections, and in hearing arguments from both parties on the merits of the case. The sitting member produced before the committee regularly authenticated returns from the different election precincts composing the 11th district, which, summed up, give

he sitting member 6,216, and the contestant 6,157, leaving in favor of the sitting member a majority of 59 votes. The contestant, considering himself aggrieved by the mode and manner in which the election in the Danville precincts, in the county of Montour, was conducted, (the returns of which are 32 for contestant and 659 for sitting member,) served, within the time prescribed by law, a notice on the sitting member of his intention to contest his seat. The sitting member admitted the service of the notice, and, as empowered by the last clause of 1st section of the above act, gave due information to the contestant" of the other ground upon which he rested the validity of his election." As the sitting member raised before the committee an objection that the contestant's notice was insufficient-not being in compliance with the requirement of the act of Congress-the committee have thought it but proper to transcribe the notice in full, so that the House might be enabled to determine what weight should be given to the objection :

To Henry M. Fuller, esq., returned as member elect to the thirty-second Congress of the United
States, from the eleventh congressional district of the State of Pennsylvania:

SIR: You are hereby notified that it is my intention to contest the election by which you are returned as the member from the eleventh congressional district in Pennsylvania to the House of Representatives of the United States for the thirty-second Congress; the said election having been held on the second Tuesday of October, (the 8th day,) 1850.

I shall proceed under the provisions of an act of Congress of the United States, entitled "An act to prescribe the mode of obtaining evidence in cases of contested elections," passed during the thirty-first Congress, of which you will take notice.

The following are the grounds upon which I rely in the said contest, to wit:

1. That the election at the Danville borough poll and the Mahoning poll, within the present county of Montour, and both within the said congressional district, were irregularly and illegally conducted:

First. In the reception of votes, by the officers of both election boards, from persons who were not, at the time, qualified electors within the meaning of the statutes of Pennsylvania-the said persons being, at the time, either under the age of twenty-one years, non-residents, foreigners not naturalized, or persons not regularly assessed or returned; neither of which classes of persons are, by the laws of Pennsylvania, entitled to the elective franchise, so as to be legally qualified to vote for a candidate for the office of member of the House of Representatives of the United States.

Second. That the officers of the said Danville borough election board allowed and permitted persons to introduce and deposit ballots in the box for representative aforesaid, who were not members nor officers of the said board.

Third. That the officers of the said Danville borough election board also allowed and permitted persons who were not members of the said board, and not duly qualified to act as such, to handle and take tickets out of the box deposited there for representative as aforesaid; and also permitted and allowed such disqualified persons to sum up and count such votes, so deposited as aforesaid, as well as to keep tallies of them, in violation of the laws of Pennsylvania.

Fourth. That certain of the ballots deposited in the box for representative as aforesaid, at the said Danville borough election poll, for the undersigned, contestant, were rejected, thrown out, and not counted by the said board; and that in fact, and as the undersigned verily believes, a large number of votes deposited for him for representative, as aforesaid, were not allowed him by the said election board, in violation of the law governing such election.

Fifth. That the ballots deposited in the box for representative, as aforesaid, at the said Danville borough poll, do not correspond in number with the list of the names of voters, nor with the tally lists kept by the proper officers in conducting said election.

Sixth. That at the said Danville borough poll persons were permitted to vote for representative, as aforesaid, whose names were not on the list of taxables furnished by the county commissioners, and that the reasons of such votes were not inserted by the inspectors of said election opposite the names of said voters in the said list, nor by the clerks of said election in the list of voters kept by them at such election.

Seventh. That two of the officers of the said Danville borough poll were ineligible and not competent, according to law, to hold and conduct the said election.

2. The returns of the election for representative aforesaid, in and for the several districts composing the present county of Montour, were irregular and illegal, because the statutes of Pennsylvania require one of the lists of voters, tally-papers and certificates, duly sealed, to be returned into the office of the prothonotary of the proper county within three days after any general election; and the said election papers and returns of the said several districts of now Montour county were not made into the office of the prothonotary of any county for more than one month after the said election, and were never returned or filed in the office of the

prothonotary of Columbia county, as they should have been, the said county of Montour not being a county created and organized at that time, but being still a part of the county of Columbia within the Pennsylvania apportionment act for representatives in Congress, passed the 25th day of March, 1843.

3. A return judge of Montour county should not have been permitted to take a seat at the meeting of judges assembled for the summing up of the votes cast for representative in Congress. in the several counties composing the eleventh congressional district, Montour not being a county at the time, or a separate election district, so as to entitle her to send a return judge agreeably to the statute of Pennsylvania. The ninth section of the statute erecting Montour county, passed 3d May, 1850, provides that "the citizens of the counties of Columbia and Montour shall, until the next apportionment by the legislature, elect members of the House of Representatives, Senate and Congress, as if this act had not been passed," (Pamphlet Laws of 1850, page 660;) and no new congressional apportionment has since the passage of said act been made.

4. That persons were permitted and allowed to vote at the election polls in Pittston, and the borough of White Haven, in the county of Luzerne, and at the election polls at Bloom and Briar creek, in the county of Columbia, and at the election polls at Braintrim, in the county of Wyoming, the same election polls being within the eleventh congressional district, for representative aforesaid, who were not entitled respectively to vote at such election polls.

5. That one of the clerks of the borough of Wilkesbarre poll, in the said county of Luzerne, was incompetent by law to act as an officer of the board, at the said election for representative aforesaid, he being at the time the chief clerk and agent of the postmaster at the said borough of Wilkesbarre, having the charge of the post office at that place.

6. The certificate of the return judges does not on its face present a case under the laws of the United States, and of the State of Pennsylvania, as to entitle the person to take his seat by virtue of it.

And so the said contestant avers, and verily believes, that at the several polls above named and particularly specified there were illegal votes enough polled and counted to have changed the result of the said election, and that if the said illegal votes had not been received and enumerated, the undersigned would have had a majority of all the votes cast in the said eleventh congressional district for representative as aforesaid; and that the several illegal acts committed by the said several election boards, together with the informalities of law thereto pertaining, are sufficient in law and fact to entitle the undersigned, contestant, to a seat in the thirty-second Congress from the said eleventh congressional district of Pennsylvania. HENDRICK B. WRIGHT.

WILKESBARRE, Pa., February 27, 1851.

A majority of the committee deeming this notice sufficiently certain and definite to apprise the sitting member of the reasons of the grounds" on which his election was contested, overruled this objection. The first section of the law which directs the contestant to give notice to the sitting member reads in conclusion thus: "And in such notice shall specify particularly the grounds upon which he relies in the contest." What are the "grounds," the reasons on which the seat is to be contested? The notice furnishes us with the answer: The gross and flagrant misconduct and irregularities of the officers constituting the election board, and also the reception of such a number of illegal votes as changed the result of the election. The intention of the law requiring this notice to be given was to prevent any surprise being practiced, to put the sitting member upon a proper defence. As no surprise has been alleged-no want of due information protested-the committee could but conclude that the notice, within the purview of the law, was all-sufficient. If, as the sitting member contends, the act required that the names of the illegal voters should have been particularly specified in the notice, we would certainly have the fact set forth and declared in the sixth section, which provides that the "names of the witnesses to be examined, and their places of residence, should be given, by leav ing a copy with the person to be notified, at his usual place of abode, at least ten days before the examination." The furnishing of a list of names of the illegal voters might possibly have put the sitting member in a stronger position to rebut the contestant's proof; but that the contestant was required to furnish such a list is not within the letter nor demanded by the spirit of the statute. What are we to understand by a specific statement of the contestant's case? Most certainly the grounds upon which he relies in the contest, and not an enumeration of the names of the illegal voters. Such a construction would at

year

times render it impracticable to detect and expose the most flagrant abuses on the elective franchise, and this law, which was intended to facilitate such detection and exposure, would have the opposite effect. The circumstances attending this case afford the strongest exemplification of this fact. From the unusual large vote polled at this election in the Danville precinct (being near two hundred more than usual) the contestant was induced to suspect the receiving of fraudulent and illegal votes. The vote in the Danville precinct the October following the election of members of the thirty-second Congress was five hundred and fifty-five; being one hundred and seventy-six less than the year before. At this election (1851) there was a candidate for governor of the State, as also candidates for the supreme and district courts, voted for, from which it is fair to presume that every vote was polled. The discrepancy of the vote of the immediately preceding the election contested is still more glaring; the number falling short by two hundred and sixty-eight compared with the vote of 1850. An examination satisfied him of the truth of his suspicions. He served the notice, cited above, on the sitting member, and had subpoenas issued by a United States commissioner, demanding the attendance of some one hundred and eighty witnesses, whom he had reason to believe were of the class of illegal voters, or whose testimony might assist him in ferreting out the abuses complained of. Of this number so subpoenaed, only some sixty-three appeared in pursuance of the summons. The remaining number putting the process at defiance, obstinately and contemptuously refused to appear. Ignorance of the laws may be pleaded in their justification, (a large proportion of the voting population being foreigners, engaged in different sorts of manufactories, and possessing few or no opportunities of legal information,) but their employers and advisers cannot claim the benefit of any such extenuation. They are presumed to have known the law, and their conduct in advising and counselling their ignorant dependents to a contemptuous disregard of the process of a United States commissioner, and that done manifestly with the design of suppressing investigation into alleged corruptions, cannot be too severely reprobated by the House. It may be inquired Why did not the commissioner coerce the attendance of these witnesses by process of attachment? The answer is found in the fact that no such power is given in the act of Congress, and he was deterred from using a doubtful power by the threats of a severe prosecution--threats made by the counsel of the contestant in his presence, and in the presence of the commissioner at the time of performing his official duty. The committee do not mention these circumstances to prejudice the right of the sitting member, for it affords us pleasure to state that we have no evidence of any participation by him in this highly criminal conduct of his attorney and friends; but to show that in such a community-30 excited, so ignorant, so badly counselled-it was impossible for the contestant to give the names of the illegal voters in his notice.

But besides all this, if it should be assumed that in the mere canvassing of voters to test their legality, without at all intending to reflect upon the officers of the election board in the discharge of their duties, the names of the supposed illegal voters are required by the laws to be specified in the notice, yet there is another point upon which a majority of your committee cannot doubt the sufficiency of the notice to sustain the conclusions of this report.

It is alleged in the notice that the election at Danville was illegally and irregularly conducted, and in what manner is particularly specified, by reason of which the result of the election of the sitting member was effected and secured.

Here is a full, replete, and grave charge. It involves the conduct of the officers, and alleges the results of that conduct. Under the specifications of the notice, the majority of the committee fully concur that contestant could take evidence touching the qualifications, the duties, the acts, and conduct of the officers; and upon this view, independent of the other, we hold the notice to be good and sufficient, and in compliance with the laws.