much as in a subsequent section they require ten days' notice of the names of the witnesses who are to be examined, together with their place of residence. (See section 6th.) We differ from this opinion, however, because, in our judg ment, the words "specify particularly," when applied to charges, mean all that we have contended. Such is their established legal signification; State prac tice and national precedent have so defined them. It would be a species of legal tautology, therefore, for Congress to have defined a particular specification, as embracing time, place, number, names, and disqualifications, when the words "specify particularly" clearly mean all these; constituting as they do the substance matter, the very essence of a specification.

The service of notice, required in the sixth section, of the names of the witnesses to be examined, and their place of residence, is another and entirely different matter. This formality would not have been required without positive enactment, and the object manifestly was, to notify the parties more particularly who they were to meet, while it was the design of the first section to inform them what they were to meet. The first section puts the parties, on full and fair inquiry, into the truth of the charges preferred; the sixth section puts them on their inquiry into th echaracter, feelings, and means of knowledge of the witnesses who are to be examined.

In addition to the exceptions taken by the sitting member to the specifications complaining of illegal voting, it was further objected that those charging illegalities were insufficient, inasmuch as they do not state by what persons committed, or in what respect the election was affected thereby. Upon full and deliberate inquiry, we are of opinion that the objections made by the sitting member are well founded.

Certainly if illegalities are complained of, the party complaining is bound to state who have violated the law, as well as in what that illegality consists. No man should be exposed to the expense and annoyance of a harassing investigation, without full opportunity to ascertain if the charges made be correct. How can he be put fully and fairly on his inquiry, unless he is informed against whom the complaint is made? The right to notice of charge, or demand, lies at the foundation at the administration of all human justice. The object of the law of 1851, requiring notice and particular specification, was manifested to give legal precision and form to proceedings of this character; facilitating, on the one hand, investigation of substantial and meritorious averments, but avoiding, on the other, those loose and scrambling contests which have heretofore prevailed.

We are of opinion, therefore, that it is the duty of a party complaining of an election to set forth such a state of facts, plainly and particularly, as would, if proved, render it the duty of Congress either to vacate the election, or declare that another person, and not the party returned, was duly elected to the office in dispute. And this, in our judgment, the party contestant in this case has failed to do. 2d. That the proof of illegal voting was insufficient.

3d. That the conduct of the officers conducting the election was not sufficiently irregular to justify the House in vacating the seat. It is contended that the conduct of William Kitchen, the judge of the Danville election, was illegal, on the ground that during a portion of the day he was discharging the duties of an inspector, to wit: standing at the window receiving tickets from the voters, and handing them to the inspectors for distribution. It is gravely argued that this is a gross departure from duty, because the oath taken by the judge carries with it no further obligations than that of an umpire, to act only in case of disagreement of the inspectors; that the oaths taken by the judge and inspectors being entirely different in tenor and character, the judge, while engaged in the reception and distribution of tickets, is also usurping the duties of an inspector, and pro hac vice, is an unsworn officer.

To show how far the majority are sustained in their view of this part of the case, we submit the following true copies of the oaths taken by the judges and inspectors, respectively:

Oath of the judge.-"I do swear that I will, as judge, duly attend to the ensuing election during the continuance thereof, and faithfully assist the inspectors in carrying on the same; that I will not give my consent that any vote or ticket shall be received from any person other than such as I firmly believe to be, according to the provisions of the constitution and laws of this commonwealth, entitled to vote at such election, without requiring such evidence of the right to vote as is directed by law; and that I will use my best endeavors to prevent any fraud, deceit, or abuse in carrying on the same, by citizens qualified to vote, or others; and that I will make a true and perfect return of said election, and will in all things truly, impartially, and faithfully perform my duty respecting the same, to the best of my judgment and abilities; that I am not, directly or indirectly, interested in any bet or wager on the result of this election."

Oath of the inspector.-"I do swear that I will duly attend to the ensuing election, during the continuance thereof, as an inspector; and that I will not receive any ticket or vote from any person other than such as I shall firmly believe to be, according to the provisions of the constitution and laws of this commonwealth, entitled to vote at such election, without requiring such evidence of the right to vote as is directed by law; nor will I vexatiously delay or refuse to receive any vote from any person whom I shall believe to be entitled to vote as aforesaid; but that I will in all things truly, impartially, and faithfully perform my duty therein, to the best of my judgment and abilities; and that I am not, directly or indirectly, interested in any bet or wager on the result of the election."

These oaths are prescribed and made part of the election laws of Pennsylvania. What is the judge sworn to do? Why, to assist the inspectors in con ducting the election. Assist in what? Clearly, in the discharge of any of the duties imposed on the iuspectors, whenever and wherever his assistance may be required; and in addition thereto, he is invested, under the law, with the higher and more extraordinary power of determining upon the qualifications of voters themselves.

The minority reported a resolution that Mr. Fuller was entitled to the seat held by him. Mr. Davis, of Massachusetts, agreed as follows in support of the minority report:

The majority of the committee dwell much upon certain alleged informalities in the mode of conducting the election. They claim that the judge of the election illegally aided in receiving the votes; that the sworn clerks illegally received the aid of unsworn assistants; that foreigners voted without due inquiry as to their right to vote; that the proper record of the reasons why certain persons were permitted to vote was not duly made, &c., &c. One general view, it seems to me, disposes of these objections. They do not go far enough, or to the root of the matter. If the mere informalities and neglects of returning officers were allowed to vitiate an election in the face of regular returns, half the seats in this house would be vacated on scrutiny. If any one thing is more clearly settled than another, as the general result of these election cases, it is, that neither in the courts of Pennsylvania, or of any of the other States, nor in Congress, is a strict observance of directory statutes by officers of elections held indispensable to the validity of such elections. I might cite numerous illustrations of this rule, which are undoubtedly familiar to the gentlemen of this house.

It was decided in a case from Virginia, where the clerks had not been sworn until the whole election was over, though the law especially prescribed the oath to be taken in advance, that such election was good. In another case, where the law required the clerks to record the names of voters in a particular manner, so as to enable the polls to be accurately purged, and the true legal votes ascertained, the clerks omitting to perform the duty as the law directed, the House would not for that cause set the election aside. The House in that case had to ascertain the genuine voters as well as they could, by other means. In various cases where voters have been returned after the time prescribed, those votes were received and counted by this house. In a case from Indiana, it was decided the election should stand, though the sheriff had neglected to hold any election at two places, at the legal time and place of voting. The House decided it should not be in the power of those conducting elections to defeat them by their own neglect of duty. On page twelve of the report made by the minority of the committee, is cited Skerret's case, Parsons's Select Equity Cases, vol. ii, page 515, where complaint was made that the inspectors had neglected to call the names of the voters; that they did not inscribe the letter V on the alphabetical list opposite the names of voters; that they did not note the production of certificates of naturalization, and of such other things as are required by the 70th section of the act of assembly. The answer of the court to these complaints is this: "These may be disposed of at once by the fact that they are but directory

to the officers of the election, and that, although the officers wilfully violating them may subject themselves to censure and punishment, the omissions of such officers cannot nullify the election."

On the second day of July, 1852, the House laid the whole subject upon the table-ayes, 87; nays, 74. This left Mr. Fuller in his seat.

NOTE. The debate upon this case will be found in vol. 24, part 2, Cong. Globe, and in

vol. 25.

For report: Mr. Ashe, page 1613, part 2, vol. 24; also, page 769, vol. 25; Mr. Wright, page 755, vol. 25; Mr. Hamilton, page 761, vol. 25; Mr. McRoss, page 764, vol. 25; against: Mr. Fuller, page 751, vol. 25; Mr. Davis, page 758, vol. 25.

LANE vs. GALLEGOS, of New Mexico Territory.

Where very great irregularity in the returns was admitted, owing to the recent organization of a Territory, and the ignorance of a part of the people respecting the forms of an election, it was held by the committee that a degree of allowance should be made.

Indians organizing an election not in accordance with law were denied the right to vote.

IN THE HOUSE OF REPRESENTATIVES,
FEBRUARY 24, 1854.

Mr. R. H. STANTON, from the Committee of Elections, made the following report:

That the said contestant urges, as the ground of his right to the seat, that “in conducting the election illegal practices were allowed in some of the counties, and gross frauds committed, by which means a majority of votes was obtained" for his opponent; and also that "after the returns had been made to the office of the secretary of said Territory according to law, the legal votes were miscounted by admitting votes for his opponent which ought to have been rejected, and by rejecting votes for him which ought to have been received, thereby giving a majority to his opponent which ought to have been assigned to him." These are substantially the grounds upon which the contestant rests his claim. He maintains that when the returns are properly purged of all illegal votes the result will be as follows:

In the county of Taos an offer was made to vote some 60 Indian votes, and refused by the judges, which the contestant claims were legal and should be added to the foregoing enumeration. He also maintains that 113 Mexican citizens cast their votes for Señor Gallegos in Rio Ariba county, and 29 in Santa Fé county, which, deducted from the aggregate above, leaves the majority of the contestant 726.

The committee have with very great care examined all the poll-books, duplicate copies of which were furnished by the secretary of the Territory, and such testimony of witnesses as was furnished by the parties, but have not been able to concur with the contestant in the correctness of the result to which he arrives. That there was very great irregularity in the returns is fully admitted; but not more so than might be reasonably expected under all the circumstances. The government of the Territory of New Mexico has been but recently organized; the people are not accustomed to the precision and accuracy of our election forms; they do not understand our language or our system of laws. Allowance may, therefore, very properly be made for the want of strict compliance, in every minute particular, with the complex requirements of the territorial election forms, especially in the absence of all proof that the election was fraudulently conducted, or that the returns were not made in the most perfect good faith. It does not appear, from any part of the proof exhibited, that in any single instance fraud was committed or attempted, or that any single return from any one of the numerous precincts was corruptly made. With the exception of the 60 Indian votes, which the contestant alleges were improperly refused in the county of Taos, the claim of the contestant rests upon the exclusion of votes in several of the counties, for want of due form in the returns; not, in the unanimous opinion of the committee, affecting in the least the substantial requirements of the law. The Indian voters claimed by the contestant were very properly, in the opinion of the committee, denied the right to vote. They are excluded by the laws of the Territory; they retain their tribal characteristics, form a distinct community from the whites, make their own local and separate laws, are governed by their own chiefs, and do not differ essentially from other savage tribes. For the same reason 202 Indian votes, cast by the Pueblos at Laguna precinct, in the county of Valencia, and enumerated in the vote of the contestant above, were rejected by the committee and deemed illegal. These Indians, at their own pueblo, without authority from the probate judge, as provided by law in all other cases, organized the election, appointed their own chiefs to conduct it, and made the returns to the secretary. All the votes cast were for the contestant. The law of the Territory makes it the duty of the probate judge of the county, eight days before the election, to select the place of holding it, and appoint three judges to preside. In this instance the judge performed no such duty, and, no doubt, for the reason that the Indians were regarded by him as not being entitled, under the law, to the right of suffrage.

The proof, in the opinion of the committee, does not sufficiently establish the fact that Mexican citizens were allowed to vote at any of the precincts; and, should the whole number of votes of that character alleged by the contestant to have been cast be excluded, it would not change the result.

From several of the precincts of San Miguel county, the judge of probate, whose duty it is to make returns to the secretary of the Territory, sent to that officer the abstract of the votes polled, as required by law, but omitted at that time to furnish the poll-books. Subsequently, and within the time limited by law, lists of voters in the said precincts were furnished to the secretary, and certified by him to have been received from the "judge of probate of the county of San Miguel." The abstract was properly authenticated, and sufficiently showed the number of votes cast for each individual; and the list of voters had opposite to each name the number as required by law, so that by reference to the tickets kept in the office of the probate judge, the person for whom each

man voted could be readily ascertained. These returns, the contestant maintains, should all be rejected, because, as he supposes, the returns were not made according to law, the probate judge having no authority to correct his error, after having returned the abstract, by supplying the list of voters. If the abstract and list of voters had been returned at the same time, and authenticated in the same manner as they were, there would have been no departure from the strict provisions of the law. But provision is made in the 29th section of the territorial law regulating elections for the failure of the secretary" to receive any return within fifteen days after the election," by requiring him "to send a special messenger to the county failing to make the returns with orders to bring them." The presumption is, that the secretary acted in obedience to this requirement of the law; and as the additional returns were received within the time allowed for correcting the votes, the committee can see no valid objection to considering them in their calculation of the result.

Neither in these precincts of San Miguel, nor in those of any other county from which the returns are alleged by the contestant to be informal and contrary to law, have the committee been able to perceive so substantial a defect as to justify their total exclusion. In the absence of all attempt at fraud on the part of the voters, it would be manifestly unjust to deprive them of the effect of their suffrages for a slight failure upon the part of the officers conducting the election fully to comply with all the forms of law when enough is clearly shown to determine the wishes of the people.

Excluding only the vote of Laguna precinct, in the county of Valencia, which was entirely given by the Pueblo Indians, and the parties are rightfully entitled to the following votes:

The committee, therefore, after a full examination of all the facts, are unanimously of the opinion that the Hon. José Manuel Gallegos is rightfully entitled to his seat as delegate from the Territory of New Mexico, and report the following resolution :

Resolved, That the Hon. José Manuel Gallegos is entitled to the seat as delegate from the Territory of New Mexico for the 33d Congress.

The House adopted the above resolution without debate, and without a call of the yeas and nays, February 24, 1854.