Mr. Botts asks to have the majority given for Mr. Jones in the county of Chesterfield (amounting to three hundred and fifteen votes) wholly rejected, upon the ground that the election was not legally held, and is therefore null and void. The objection made to the election in this county is, that only one poll-book was kept by one writer, or poll-keeper, of the votes for a member of Congress-it being insisted by Mr. Botts that the law of Virginia, regulating the elections of members of Congress, requires more than one. That law is as

follows:

The person authorized by law to hold elections for members of the general assembly in each county, city, and borough shall conduct the said election, at which no determination shall be had by view; but each person qualified to vote shall fairly and publicly poll, and the name of the voter shall be duly entered under the name of the person voted for, in proper poll-books, to be provided by the officer conducting the election; for which purpose he shall appoint so many writers as he shall think fit, who shall respectively take an oath, to be administered by him, or make solemn affirmation, that they will take the poll fairly and impartially; he shall deliver a poll-book to each writer, who shall enter in distinct columns, under the name of the person voted for, the name of each elector voting for such person. Like proclamation and proceedings shall be had for conducting, continuing, and closing the poll in each county of a district, as is prescribed by law in the election of members of the general assembly.

Subsequent laws provide that the election for senators, delegates, and mem bers of Congress shall be holden at the same time and place in each county or city, and by the same officers; and a direction similar to that above copied is given for the appointment of writers or poll-keepers.

The person conducting the election at the time of the passing of the above act in 1813, in the counties, was the sheriff. By the provisions of acts since passed, superintendents or commissioners are required to be appointed; any two or more of whom hold the elections, appoint the writers, and decide upon the qualifications of the voters-the sheriff having no voice in the matter, and his presence not being necessary. From the testimony submitted to us, it appears that three writers were appointed and sworn-one of whom kept the pollbook of the votes for member of Congress, one kept the book of the votes for senator, and another the book of the votes for delegate to the Virginia legislature, who were all voted for at the same election. The superintendents did, in point of fact, appoint and qualify more than one writer, who assisted in conducting this election, and whose respective duties were distributed to them, as the circumstances of the case required. In the opinion of the committee, however, the laws above referred to do not require the officers to appoint more than one writer, or provide more than one poll-book, unless they think fit. The authority given to appoint so many as they think fit, is an authority to appoint only one, if, in their judgment, one is sufficient. Should the true construction of the laws be considered to require the superintendents to appoint more than one writer to keep the poll of each officer voted for, still the committee do not think that the omission to do so is such an irregularity as to render the election null and void, and thus deprive the people of their votes, or put them to the trouble and expense of a new election. No fraud or unfairness is complained of, nor is it shown that any mistakes were made by the writer

employed. The memorialist was himself present during a considerable part of the day, saw how the election was conducted, and made no objection to it. No decision of this House, so far as the committee are informed, has ever sanctioned such a result. The case of Easton vs. Scott (Contested Election Cases, page 276) referred to by Mr. Botts in his memorial is altogether different from this. That was the case of an election held in 1816, in the then Territory of Missouri, where the law expressly required that there should be three judges and two clerks, and that the electors should vote by ballot. It was stated to be proved that in one township the judges put on the list the names of persons who did not vote, and were not in the township; and that one person refused to vote, but was compelled to do so by the judges, who sent a paper to bring him before them. The committee decided to reject the votes in that township, as they state, "for a variety of causes, among which are the following: 1st. The election was held viva voce. 2d. But two persons acted as judges, and neither of them was sworn. 3d. But one person acted as clerk, and he was not sworn. 4th. The votes were rejected by the justices whom the clerk took to his assistance in making out the abstracts to be forwarded to the governor; they were sent to the governor in an irregular manner; and the paper called a 'return' appeared, upon its face, defective in many important particulars." These causes, combined with the other facts of the case, were amply sufficient to justify that decision; and whenever they shall exist in another case, will render it proper to conform to it. In the case before us, the committee have decided, and submit to the House, that there is no sufficient reason for setting aside the election held in the county of Chesterfield; and that the votes given there, after rejecting those specially objected to and not proven to be legal, ought to be counted.

Objection is made by Mr. Botts to the votes given at Poor's precinct, in the county of Goochland, where Mr. Jones had a majority of thirty-six votes. If these votes should be rejected, it will be perceived that the result will not be affected. But the committee are not of opinion that they ought to be rejected. The law of Virginia respecting contested elections, before recited, and under the provisions of which the parties acted and prepared their case, requires a regular notice to be served of any objections to the legality of the election, as well as of objections against particular voters. Notice was given by Mr. Botts of objections to several voters who voted at this precinct, and testimony has been taken touching their legality. But it is not shown that any notice whatever of an objection to the legality of this election was at any time served on Mr. Jones, or on any attorney authorized by him to receive notices of objections. Mr. Jones admitted before the committee, that a few days before he left home to attend the meeting of Congress he received information from his attorney, who was authorized to give and receive notices of the time and place of taking depositions to be used in support of votes objected to in Goochland county, that he had been notified that such an objection would be taken; and it was further stated by Mr. Jones, that he answered his attorney by informing him that no notice respecting such alleged illegality had been served on him, and that he need not give himself any trouble about it. The attorney, however, had his own deposition taken on this subject on the 29th day of November, 1843. On the 15th of January last, Mr. Botts had depositions taken, and the witnesses were cross-examined by Mr. Jones's counsel, after entering his protest against the legality of the proceeding. The committee think that depositions thus taken in support of an alleged illegality, of which no notice was given, and after notice had been given of objections to particular votes, pursuant to the law of Virginia, ought not to be received. These depositions were not taken. in pursuance of any authority given by this House, or by the committee; and, if offered as taken in pursuance of the law of Virginia, it should appear that that law was complied with.

If these depositions are received, and this objection considered, it becomes necessary to inquire whether the facts proved are such as to require the election at that precinct to be considered null and void. The sheriff, it appears, did not take the oath prescribed by the act of 1831 respecting elections, although he was sworn to fulfil the duties of his office, when appointed. By that act it was made the duty of the sheriff to hold the elections, in certain cases, himself, and to decide upon the legality of votes; and an oath was prescribed applicable to his then duties. Now, all the elections are required to be conducted by superintendents, who alone decide upon the votes, and who are authorized to proceed without the presence of the sheriff; so that the oath prescribed has become inapplicable to the duties to be performed by the sheriff, if he thinks proper to attend, as it is still his duty to do. Two superintendents, it appears, did conduct the election all the time at this precinct; but it would seem that one of those who acted during a part of a day was not sworn. This was undoubtedly irregular and illegal; but the committee are not prepared, on that account, to set aside the election as wholly null and void, in a case where it appears to have been fairly conducted; where the name of every voter and his vote is recorded, so that if either party objects to him, the other is required to prove him legally qualified to vote; and where such objections have been actually made, and the votes rejected unless duly proven to be good. None of the cases cited by Mr. Botts, in his memorial, on this point, are like the case now before us. The committee recommend the following resolution:

Resolved, That John W. Jones is entitled to his seat in this House, as a representative from the sixth congressional district of the State of Virginia. When the case came into the House a very brief debate ensued.

Mr. SCHENCK moved that the further consideration of the reports of the majority and of the minority of the Committee of Elections in this case be postponed until Thursday next. Mr. S. proceeded to remark that, in order to get a full understanding of the grounds upon which the minority of the committee had come to the conclusion to which they had arrived, it seemed to him it was absolutely necessary that gentlemen should have an opportunity of examining the evidence. The minority, it was true, had concurred with the decision of the majority in its final result; but there remained a question regarding the qualification of votes, the decision of which would affect the legality of the election in many of the States. He had concurred in excluding the class of votes excluded by the majority, because the admission of such votes (under the qualifications prescribed by the States) would be rendering nugatory the power granted to the Congress of the United States-the States being permitted to admit to citizenship those who were not recognized as citizens in every respect, and particularly under the laws of the United States. It was true, it would cut off thousands of voters in Michigan and other States; and he would say to his New England friends that it would cut off the votes of all colored persons. If the kind of votes to which he had referred were allowed, Mr. Botts would have a majority of three or four votes, and consequently be entitled to the seat; but being excluded, Mr. Jones had a majority.

The vote was taken June 6.

Mr. ELMER said, as some explanation of the action of the committee might perhaps be expected from him, he would trouble the House with a very few brief remarks. He trusted the House would be as unanimous in its decision of this question as the committee had been. He argued that the committee could not have come to any other conclusion than they did, even if they had followed the requirements of the contesting candidate [Mr. Botts] himself, in regard to the allowance or rejection of votes. And he said, further, that it was a case which ought never to have come before the House, for there was no good ground on which the seat of Mr. Jones could be contested. He went into an explanation of the case at some length, and also of the action of the committee thereon.

Mr. NEWTON said both the majority and the minority of the committee had arrived at the same result respecting the right of the sitting member; but he went on to show that the contest on the part of Mr. Botts was not vexatious, nor frivolous.

Mr. HAMLIN also addressed the House, and complained of the course pursued by the minority of the Election Committee. He concluded by moving the previous question; which was seconded by the House, and the main question ordered to be put.

Mr. HAMMET called for the yeas and nays on the adoption of the resolution from the majority of the Committee of Elections, declaratory of the right of Mr. Jones to his seat, and they were ordered; and being taken, resulted thus: yeas 150, nays none.

Where votes given to a representative in Congress are required by State law to be returned within a specified time-held that the law is simply directory, and that votes returned after the time specified may be counted.

IN THE HOUSE OF REPRESENTATIVES.
JANUARY 7, 1846.

Mr. HAMLIN, from the Committee of Elections, made the following report: The memorial of Mr. Brockenbrough claims that he was entitled to the commission of the governor at the time it was given to Mr. Cabell, upon the ground that of the votes then legally returned a majority was for him; and further, that of all the votes legally given at the election, a majority was also in his favor. Said memorial is as follows, addressed to the House of Representatives :

The memorial and petition of William H. Brockenbrough, representative elect from the State of Florida in the 29th Congress, respectfully shows

That he claims the right to a seat in the House of Representatives, and to represent the people of Florida in the 29th Congress, and exhibits herewith the certificate of the secretary of state of Florida, under the great seal of the State, as conclusive evidence that at the time required by law for counting the votes returned to the office of the secretary of state, the majority of votes, by the lawful returns, was in favor of your memorialist.

Your memorialist further protests against and contests the right of Edward C. Cabell to a seat in the House of Representatives, or to represent the people of Florida in the 29th Congress of the United States-

First. Because he denies and contests the election of the said Edward C. Cabell upon the following grounds, to wit:

Because, at the election held in the State of Florida according to law, on the 6th day of October, A. D. 1845, for representative of the people of Florida in the 29th Congress, the greatest number of votes of the legally qualified voters of the State of Florida was cast in favor of your memorialist, and not in favor of the said Edward C. Cabell.

Secondly. This memorialist protests against and contests the right of the said Edward C. Cabell to a seat in the House of Representatives, or to represent the people of Florida in the House of Representatives of the 29th Congress-

Because he contests and denies the force, effect, and validity of the return of the said Edward C. Cabell, and claims that the same shall be wholly set aside and held for naught, as illegal, irregular, informal, and invalid, on the following grounds, to wit:

Because, at the expiration of thirty days after the election for representative in the 29th Congress, at which time the law required the returns in his office to be counted by the secretary of state, the greatest number of votes, by the lawful returns then in the office of the secretary of state, was in favor of this memorialist, and not in favor of the said Edward C. Cabell, as is shown by the certificate of said secretary, hereinbefore referred to. And the certificate which was given in favor of said Cabell, by the said secretary, upon which the commission of the governor was granted, was unlawful, erroneous, and wholly null and void, and did not represent to the governor the true state of facts; because the said secretary counted as in favor of the said Edward C. Cabell certain supposed votes of which there was no legal return in his office. Of all which said Cabell has had notice, a copy of which is herewith presented; and all of which is herewith presented and respectfully submitted by your memorialist.

W. H. BROCKENBROUGH,

Representative elect of the people of Florida in the 29th Congress of the United States.

There is no law of the United States regulating the mode and manner of proceedings in cases of contested elections. The law of the State where the parties reside is therefore resorted to, so far as it may be applicable, as the rule by which your committee is directed. By the law of Florida, it is provided that any candidate who shall contest the election of any person to the senate or house of representatives of that State shall give notice thereof, in writing, to the person whose election he contests, within ten days after the canvass of county clerks, and within thirty days after the canvass of the secretary of state. It was made the duty of county clerks to canvass the votes given for officers in their several counties, and the secretary of state to canvass the votes for officers who were elected by the whole State; and it was competent for Mr. Brockenbrough to give the notice required by law within thirty days after the canvass of the secretary of state.

On the 19th day of November, A. D. 1845, Mr. Cabell was notified by Mr. Brockenbrough, agreeably to the requirements of law, the canvassing of said votes having taken place on the 6th of said November by the secretary of state, and was by him certified to the governor. A copy of said notice is annexed, marked A. The notice was objected to as insufficient by Mr. Cabell, but your committee were of a different opinion.

66

The law of Florida, approved July 26, 1845, "prescribed the time, place, and manner of electing representatives to Congress," &c. Chapter 16, section 2, provides that the returns of said election for representative in Congress shall be made to the secretary of state of this State, who shall count the same at the expiration of thirty days after the election, and certify the result to the governor of the State, who shall commission the person receiving the greatest number

of votes."

At the expiration of said time the secretary of state did so count said votes, and certify the same to the governor of Florida, accompanied by a tabular statement of the return of votes then made to him. The governor, upon the certificate and accompanying tabular statement of votes made to him by the secretary of state, on the 6th day of November issued his commission to Edward C. Cabell. A copy of that commission is annexed, marked B.

Mr. Brockenbrough presented to the committee a copy, duly attested, and under the seal of the State, of the tabular statement of the votes, certified by the secretary of state to the governor, in the manner before named. That paper was admitted as evidence by the committee, and without objection from any A copy of that paper is annexed, marked No. 1.

one.

He also offered certified copies of returns from the counties of Santa Rosa, Washington, Hillsboro', and Columbia, made to the office of the secretary of state, by judges of probate, after the expiration of thirty days, and after the secretary of state had made his certificate to the governor. Copies of these papers are annexed, and marked Nos. 2 and 6. They were admitted as evidence by the committee.

He further offered to the committee certified copies of the returns made by inspectors of elections to the secretary of state, after thirty days from the precincts of Key West and Tortugas, in the county of Monroe, and Brandy Branch, in the county of Nassau. These papers were received in evidence by the committee, and copies are annexed, marked Nos. 3, 4, and 5. But the committee refused to count or allow the votes returned in said papers. Mr. Brockenbrough also presented a paper marked 2; but it was not considered as evidence by your

committee.

To understand the evidence contained in the foregoing papers, it becomes necessary to examine the laws of Florida for the purpose of ascertaining who are the officers created and directed to make the returns of votes given at an election for representative in Congress. Tabular statement No. 1 presents the evidence of returns made by three classes of persons, to wit: judges of probate, county