two years for which members of the House of Representatives of the United States are elected; and in that house each of the said delegates shall have a seat, with a right of debating, but not voting.

Mark the words of the act: "Now hath, or hereafter shall have, the right to send a delegate to Congress."

There having been "a temporary government established" in Kansas Territory, under the act of Congress of 1817, as just quoted from, the governor, in the opinion of the undersigned, not only had authority to issue his proclamation ordering the election, which was held on the said first Monday of October, 1856, for a delegate to Congress, but, being charged with the execution of all laws applicable to the said Territory, it was his indispensable duty to have done so.

The law just quoted, the undersigned maintain, has an important bearing, and is now, and has been from the time of the taking effect of the act of Congress organizing the said Territory, in full force therein. In support of this proposition they beg to refer to the thirty-second section of the said organic act, or so much thereof as bears upon the point in hand. The provision relied on in this regard is as follows:

That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Kansas as elsewhere within the United States, except the 8th section of the act preparatory to the admission of Missouri, &c., &c.

In view of all this, the undersigned cannot allow themselves to doubt for a moment that the governor of the Territory of Kansas, in issuing his proclamation for an election of a delegate to Congress, to fill the vacancy occasioned by the expulsion of the sitting delegate from this house, during the last session of Congress, as before more particularly referred to, and that, consequently, the election held in said Territory in pursuance of the governor's proclamation, on the first Monday in October, 1856, was fully authorized, and but carrying out the organic act in its true spirit and import. And, indeed, in doing so, the governor was but executing faithfully the laws applicable to the Territory of Kansas in relation to the election of delegates to Congress, and evidently with the view of carrying out, in all good faith, to their legitimate ends, the great objects of the organization of that Territory. As the chief executive officer, the governor could not, in the opinion of the undersigned, have done less, without being guilty of an inexcusable dereliction of duty to the Territory of which he was governor, and, indeed, they think they may add, to the whole country.

When the vacancy was occasioned, in the manner before referred to, the undersigned do not believe that many, if any, members fancied even that they were voting to create a vacancy by the expulsion of Whitfield, which could not be filled without an amendment of the organic act or the election laws, enacted as heretofore stated, by the legislature of Kansas. But, doubtless, they believed that they were but referring the matter back to the people of the Territory, to be passed upon by them at the ballot-box, as they have done, and send a delegate here to fill the vacancy so created as aforesaid.

And, finally, in consideration of the premises, the undersigned are clearly of the opinion that John W. Whitfield is entitled to a seat in this house as the delegate from the said Territory of Kansas; and that, therefore, the resolution reported by the majority of the committee should not be adopted by the House. All of which is respectfully submitted:

M. OLIVER.
W. R. SMITH.

The House (February 21, 1857) tabled the resolution reported by the committee-yeas 96, nays 85. This left Mr. Whitfield in the seat.

NOTE.-There was no debate upon this case in the House except upon the swearing in of he delegate, which will be found on page 2, vol. 34.

In the second session Messrs. Wright, of Tennessee, and Cavanaugh, of Minnesota, in place of Messrs. Phillips and Harris.

VALLANDIGHAM vs. CAMPBELL, of Ohio.

The preliminary contest was upon an application for further time (on the part of the sitting member) to take supplemental testimony.

Held by the committee that the fact that the sitting member was a member of the previous Congress and attended to his duties as such during a part of the time when by law the testimony should be taken furnishes no reason why further time should be granted.

Also, that the fact that the contestant occupied, or proposed to occupy, the entire sixty days after the answer of the sitting member to the notice of the contest served, does not entitle the sitting member to an extension of time.

On the second and main contest there is not, in the ordinary signification of the word, a report. The committee could not agree. One of the minority reports is signed by Messrs. Lamar, Phillips, Boyce, and Stevenson. Its concluding resolutions were adopted by the House, and its prominent legal points will be stated here:

It is not necessary in a notice to give the names of illegal voters objected to.

Abstracts of votes returned to the office of secretary of state, though not obtained within the sixty days fixed for taking testimony, can be used as documentary evidence.

Poll-lists are not sufficient evidence that a person voted; parol evidence of identity is necessary. A resort to parol proof, where the poll-lists are not required to be kept by law as records, is admissible.

Evidence consisting of the declarations of voters as to any matter concerning their own voting is admissible.

Persons having a visible admixture of African blood are not white within the meaning of the Constitution, and could not vote under the laws of Ohio.

IN THE HOUSE OF REPRESENTATIVES,
JANUARY 27, 1858.

Mr. T. L. HARRIS, from the Committee of Elections, made the following report: That they have considered an application made by the sitting member to them to ask of the House, in his behalf, leave to allow further testimony to be taken, pursuant to the proviso contained in the 9th section of the act of February 19, 1851. This being an application amounting to a continuance of the case until a future day, it was deemed proper to settle it before deciding upon the merits of the case as presented in the issues and proofs of the parties.

Mr. Campbell, in support of his application, read and filed with the committee an argument, with several other papers connected therewith, which are submitted with this report. Mr. Vallandigham resisted the application, and read and filed with the committee an argument, with several other papers. connected therewith, which are also submitted with this report. The reasons for allowing supplementary testimony to be taken in this case are so fully stated in the argument of the sitting member, and the objections to the same are so amply discussed by the contestant, that your committee deem it quite unnecessary to restate them.

The grounds upon which the sitting member seems to rest his application for leave to take supplemental testimony seem to reduce themselves to two, viz:

1. That the sitting member, having been a member of the last Congress during a part of the time, when by law the testimony should have been taken, and having been attending to his duties as such member, he should be exempted from the operation of the law so far as to allow him time for taking supplemental testimony.

2. That the contestant, by notices served upon the sitting member, occupied, or proposed to occupy, the entire sixty days after the answer of the sitting member to the notice of contest was served, and that he is therefore entitled to a period of time outside of the sixty days to complete his taking of testimony.

Upon the first point, your committee are clear that the fact of one of the parties being a member of Congress for the time being can in nowise affect his obligations to comply with the law. In all the relations of life, both private and public, circumstances are constantly occurring which are quite as imperative in their operation as those connected with a seat in Congress; and were this to be deemed a sufficient reason for a non-compliance with the law, it would at once take from its operation one-half the cases which arise. The fact that the law expressly provides for taking testimony by the parties or "their agents" excludes the construction that it was intended to apply only when the parties could attend in person.

Upon the second ground your committee are equally clear, that however extensive the time covered by one party in proposing to take testimony, it in nowise precludes the opposite party from proceeding at the same time to take it in his own behalf. There is no limitation to this power by the act of 1851, except "that neither party shall give notice of taking testimony in different places at the same time, or without allowing an interval of at least five days between the close of taking testimony at one place and its commencement at another." Under this provision, your committee believe full power is given to each one of the contesting parties to proceed with taking testimony, but limits each to one place at a time.

Your committee are of opinion that if either party to a case of contested eleetion should desire. further time, and Congress should not be then in session, he should give notice to the opposite party and proceed in taking testimony, and present the same and ask that it be received, and, upon good reason being shown, it doubtless would be allowed; but it seems too much to grant, in this case, for either of the reasons stated. It is now upwards of fifteen months since the election, and nearly one-half of the term of service has elapsed, and it is due to every interest concerned that the rights in dispute should be settled.

Your committee are therefore of opinion that no further time should be allowed to take supplemental testimony in the case. At the request, however, of the sitting member, that the question may be presented to the House, your committee report the following resolution:

Resolved, That it is inexpedient to allow further time to take testimony in this case, as asked for by the sitting member.

MINORITY REPORT.

The undersigned, members of the Committee of Elections, being a minority, and not agreeing with the majority in their report on the application of Lewis D. Campbell, the sitting member, for an order of the House to allow supplementary evidence to be taken on the memorial of Clement L. Vallandigham, contesting the seat of the said Lewis D. Campbell from the third congressional district in the State of Ohio, ask leave to submit the following report: From the record in this case, (Mis. Doc. No. 4,) it appears that the contestant commenced taking testimony, at the city of Hamilton, Butler county, on the 2d day of February, 1857, and kept this commission open until the 13th day

of March of that year, (pp. 94 to 130.) It also appears that whilst the above commission was open and unclosed, the contestant (notwithstanding the express provisions of the act of Congress of February 19, 1851, in relation to contested elections, that neither party shall give notice of taking testimony at two different places at one and the same time) did give notice, and did proceed in pursuance of the same to take testimony, at the city of Dayton, on the 2d day of March, 1857, and continued the commission under the same open until the 18th day of March of that year.-(Mis. Doc., pp. 8 to 15.)

From this it is clear that contestant availed himself, and made the best possible and double use, of the time allowed by law for taking testimony in cases of contested elections. And it also further appears that contestant gave notice and commenced taking testimony, at the city of Dayton, on the 20th day of March, 1857, and closed the same on the 28th of the same month-the last day allowed by law for taking testimony.-(Mis. Doc. No. 4, pp. 22 to 90.)

It is therefore evident that the contestant actually consumed, and in fact employed, (if we count the time covered by open commissions at the different places,) the full period of sixty-six days; to which if we add the five days' interval required by law between the closing of the commission at one place and the opening at another or different place, it would make seventy-one days covered by the contestant by his commissions; whilst the sitting member, from the construction, in which, however, we do not concur, which it is clear to us both the parties gave to the law, was only able to take testimony from the 17th to the 27th March, 1857, and that, at the time the sitting member's notice to take his testimony as aforesaid was served, the contestant refused to attend, and claimed that he had already covered this time with his notices, and which latter statement is not denied by contestant.

And, in addition to all the above reasons, it is alleged and admitted that the sitting member, a short time after the time limited by law for taking testimony in such cases, proposed to contestant that each party should be at liberty to proceed and take such further and other testimony as either of said parties might desire, so as thereby to have a full, fair, and impartial investigation of the whole matter, but all of which was declined by the contestant.

Under such circumstances the sitting member had no other alternative but to wait until the matter came before Congress, and then avail himself of his legal and equitable right to take further evidence in the cause, which he did by his application to the House through the committee for leave to take testimony.

It is true, the contestant denies, upon the first notification from the chairman of the Committee of Elections of the pendency of his case, most of the statements in the application for the time; but as his denial only raises a question of veracity between himself and those who have given the sitting member the information of the facts set forth by affidavit in his application, the request for further time is clearly well founded.

The act of 1851 (Stat. at Large, p. 570) provides "that the House (not the committee) may, at their discretion, allow supplementary evidence to be taken after the expiration of said sixty days." The undersigned, therefore, for the reasons set forth in the application, recommend the adoption of the following

resolution :

Resolved, That Lewis D. Campbell and Clement L. Vallandigham be, and they are hereby, allowed the further time of forty days from the passage of this order to take supplementary evidence touching the matters set forth in the memorial of Clement L. Vallandigham, contesting the right of Lewis D. Campbell as the representative from the third congressional district of Ohio in the 35th Congress of the United States. Respectfully submitted:

H. Mis. Doc. 57-15

JAS. WILSON.
EZRA CLARK, JR.
I. WASHBURN, JR.
JOHN A. GILMER.

The subjoined extracts will show the drift of the debate upon the preliminary question in this case:

Mr. STEVENSON. I do not think the gentleman from North Carolina who has just taken bis seat has placed the issue upon the proper grounds between the majority, with which I concur, and the minority. Nobody on the Committee of Elections, as I understand, denies or questions the power of the House to extend the time for taking testimony under the elec tion law of 1837. It is not a question of power, but it is a question which addresses itself to the discretion of the House, whether it will exercise a power which everybody admits is granted under that act.

Now, sir, the majority of the committee thought that Mr. Campbell, the sitting member, did not bring himself within the rule under which further time ought to be granted in which to take further proof in his case. I shall not detain the House long in stating the grounds on which the committee arrived at that conclusion. It will never do to place such a construction upon this act of 1851 as is now claimed by the gentleman from North Carolina, [Mr. Gilmer.] If such a construction is placed upon the act, then the act itself becomes a monstrous wrong. It gives safety to the sitting member, but it absolutely denies everything like justice to the contestant for a seat in this house. Why, sir, it is claimed here that the gentleman from Ohio, in consequence of his duties here in Congress, had no time to attend to the taking of that testimony which, by the act of 1851, is required to be taken within sixty days.

Gentlemen are well aware that in nearly all the free States the elections are held the year preceding the Congress in which the members elected are entitled to take their seats. This election took place nearly two years ago, just preceding the last session of the last Congress. Under the law of 1851 this testimony was to be taken in sixty days. Did the framers of this act contemplate the returned member to be present in person to take testimony, or could be present by an attorney? If present in person, he had to be there within the sixty days: and in this case that sixty days was necessarily during the second session of the thirtyfourth Congress. But, sir, the act clearly contemplated that if he was to be there in person he had the right to leave his seat in Congress for that purpose. He could either do that or he could be represented in the taking of testimony by an agent. Mr. Campbell was represented by an agent in taking proof: and yet now, eighteen months after, he comes here and asks that the time may be extended, in consequence of his having been engaged here at the time as a member of the House.

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Will the law of 1851 bear such a construction as that? I put it to the legal acumen of the gentleman from North Carolina. Is it consistent with justice, or propriety, that such a construction should be placed upon it? Sir, under that construction, every gentleman who is returned from the free States will be engaged in Congress during the time when testimony must be taken under the law, if his seat is contested. He is presumed to be here; and if that will give him the right to have time allowed to take supplemental testimony, members from the free States, whose seats are contested, will always have that right. Mr. WASHBURN, of Maine. Sir, I do not believe in the binding authority of the law of 1851 upon this house in all cases. I believe, sir, that it is directory, and not absolutely binding. I do not believe that the Senate of the United States, in conjunction with the House of Representatives in one Congress, can make a law which is to bind future Houses of Representatives. Not so. By the Constitution of the United States, each house is made the judge of the returns, qualifications, and elections of its own members, and each house can and must judge for itself upon those questions. The law of Congress of 1851 is nothing but the advice or suggestion of reasonable and intelligent and just men, as to the proper course to be taken-advice given when no particular case was before them, and which may be presumed to be good and sound advice and counsel in reference to the matter. It is nothing more. The law is not binding upon us; and if in any case it is oppressive, and there is reason for stepping outside of it, I hold that we have a right to do it. I hold that the law was intended to be a shield and not a sword. It was intended to say to gentlemen claiming seats here, that at a certain time and in a certain way they might take testimony, which should be received; but not to say that a member or his constituency should lose their rights upon this floor through any neglect, or inadvertence, or misinformation. No, sir; I will not consent to admit any gentleman claiming a seat upon this floor unless I believe that he has a right to it; that he has been elected; that he was the choice of a majority of the people voting in the district. I am willing to look beyond forms and technicalities, and to ascertain the sense of the people, and who has been rightfully and truly elected and will represent the people.

Mr. MARSHALL, of Kentucky. Mr. Speaker, in the determination of the question which is brought by the Committee of Elections before the House, propriety demands that we should lose sight entirely of everything like partisan feeling. It is a question of practice, and in treating it the House acts as a court as well as a parliamentary body.

The precedents under the act of 1851 stand in bold contrast with the course recommended by the committee. The resolution passed by the committee adopts a rule more stringent than it is usual to observe in courts of justice.