Upon the question of security, whether these ballot-boxes, when opened and recounted before the magistrates, were in the same condition as when sealed up by the election officers and delivered to the alderman on the night of the election, there was much conflicting testimony and much doubt.

THIRD DIVISION ELEVENTH WARD.

The box of this division was received by Alderman Williams on the night of the election, and placed by him in the vestibule of his office, over the door, upon a shelf with the other boxes, so high up as to require the use of a chair to reach it. There he thinks it remained undisturbed till the 8th of January— the day it was taken to the magistrate's office to be opened, a period of three months. He took it himself, with other boxes, on that day to the office of the magistrate for that purpose, having the assistance of one Samuel L. McKinney, the constable of the ward, in carrying and bringing back the boxes. The box was not opened on that day as was expected, and was taken again to the office in like manner and for a like purpose on the next day. Yet, although Alderman Williams believed the box when opened to be in the same condition as when it was received by him-the office where it was deposited was a place of frequent resort, especially by the constable McKinney, and by another alderman; and McKinney testifies that, on the day before the box was taken the first time from the office to the magistrate to be opened, in the absence of Alderman Williams, a person, a stranger to him, came to the office, representing to him that he had come after this box to take to the magistrate; that, believing his story, he helped him get it from the vestibule and take it away; that it was carried away in a basket, covered up with a cloth and kept from 10 till 3 o'clock in the afternoon, when it was returned by the same man who took it, and that Alderman Williams did not return to his office till 7 o'clock in the evening, and then not entirely sober. The character of McKinney was attacked, and it appeared that he had been convicted of "extortion," or obtaining money by fraud, and had been pardoned by the governor and since elected constable of the ward. Alderman Williams testified that he would not believe him under oath. If his character is as bad as claimed by the contestant, the committee believe him to be a very unsafe person to keep the company of ballot boxes for three months, or be intrusted with them, as he was by Alderman Williams, to carry to the magistrate's office, and would be a very suitable person to do or connive at the very thing he testifies was done.

The committee could, however, place no confidence in the integrity of a ballotbox which had been in such company and keeping for three months, and when opened was found not to agree with the sworn returns received at the time of the election. By this recount the contestant gained seventeen votes. As the entire recount gives him but eight majority, it is obvious that, without this correction, the result cannot be changed. The committee think it would be most unsafe to contest the returns by such testimony.

THIRD DIVISION, SIXTEENTH WARD.

This box was received on the night of the election by Alderman Mecke, of the sixteenth ward, and by him kept under the desk in his office till the 6th of December following, when it was removed by him with the boxes to his new house, and placed with them in a boarded cellar till the examination before the magistrate of the 25th January following. This alderman was one of the magistrates who took the testimony for the contestant, and when his own deposition was taken, another magistrate was substituted in his place. The box was brought by him to the magistrate's office two days before it was opened, aud left there by Alderman Mecke in an unfastened closet in charge of no one

There it remained from Thursday until Saturday, when it was opened. Alderman Mecke, previously to the opening of the box, became very much alarmed and impressed with the idea that it had been tampered with, though he could assign no very definite reason for his suspicions. His testimony on this point was, " I believe the condition of the box has been changed; it has been tampered with." He at first believed that the wax with which it was sealed was too fresh in appearance, and went into the cellar to examine the wax upon the other boxes to satisfy himself upon this point. While there Alderman Remick, in whose office the box had been left by him from Thursday till Saturday, came into the cellar, and Alderman Mecke spoke to him of his uneasiness, as follows: I believe I told him that I was unnerved. I had not slept for two nights, and I was fairly trembling then, which was shown by the fluid lamp which I held in my hand. Question. Did Alderman Remick make any reply in the presence of Mr. Verree? If so, state what it was. Give, as nearly as you can, his own words.

[Question objected to.]

Answer. I believe he laughed at me, and said I was a damned fool; that is as near as I can recollect.

The opening and recount of this ballot-box is described in detail on pages 90 and 91 of Mis Doc. 6 of the last session. The full tickets were found in bundles of ten twisted together, and the scratched or broken tickets were found by themselves in bundles. Exact copies of the tally-lists used at this division were before the committee, and the full bundles of tens were found to coincide with the XX's, indicating tens on the tally-lists, and the scratched tickets found in bundles by themselves corresponded with the tallies for odd tickets on the tally-list, and altogether agreed with the original return. But on opening the twisted bundles which had been counted as full tens for the sitting member, there were found in those bundles "stickers" for contestant upon the tickets over the name of the sitting member, sometimes one, sometimes two, and sometimes three in a bundle. And the claim of the contestant was that by mistake these ballots with "stickers” had been counted as full ballots, the "stickers" being overlooked. This ballotbox was produced before the committee, the bundles of ballots having, at the request of the sitting member, been by the magistrates restored to it and the box sealed up again, and forwarded to the Clerk of the House. On breaking the seal and opening the bundles of tens, the committee found the "stickers" to be of yellow paper upon a white ballot, making a most striking contrast, visible as far as the ballot could be seen. No one but a blind man could make the mistake of overlooking these "stickers," for none other could fail to see them. There were other peculiarities noticed by the committee upon taking out from the bundles the ballots found in them with "stickers" upon them. In very many instances the "sticker" was a smooth piece of paper pasted over a fold in the ballot, with no corresponding fold in the "sticker," showing that the " sticker” had been placed upon the ballot at some time after it had been folded. So in some instances the twist in the ballot caused by twisting it in the bundle was not discoverable on the "sticker" which had been pasted on its face.

With all the proof before them touching this ballot-box, that it had been out of the custody of the law, in an unfastened closet, for two days, just before it was opened, when temptation was the strongest to tamper with it, the strange conduct of the alderman who had it in custody, his own conviction and assertion that it had been tampered with, the cool, comforting assurance of the other alderman in whose office it had been so carelessly left, and the condition of the ballots themselves when opened, the committee could not give to a recount thus made the effect of controlling the tally-list and sworn return made at the time, especially so when it is claimed, as in this instance, that a mistake of thirty votes was made in counting three hundred and fifty-four, by innocently overlooking yellow pasters on white ballots.

FIRST DIVISION, NINETEENTH WARD.

The ballot-box in this division was received from the inspectors on the night of the election by Alderman Stuart Field, and by him kept till produced before the magistrates opened, on the 21st day of January following. When the box was produced it was not found to be closed tightly, but it was so imperfectly tied with the tape that, at that time, the lid could be opened the space of three-eighths of an inch-wide enough to introduce single ballots; but whether bundles of tens could be introduced, the alderman himself had some doubt. Loose ballots were plainly visible through the aperture, which was large enough not only to insert but to abstract ballots. When the box was opened, a quantity of single tickets was found loose in the box, next to the opening, some for sitting member, some for contestant, and others for other individuals. The judge of the election testified that the scratched tickets were put back into the box loosely, after the bundles of tens had been placed in the box; but one of the inspectors testified that the scratched tickets were twisted together and laid on top, adding, "I helped do it myself."

It is apparent that this box had never been sealed according to law, or had been subsequently tampered with, and in either event no recount of it in the condition found before the magistrate could be taken as against the return made on the night of the election. But as the contestant gained but seven votes by a recount of this box, without the aid of the recounts of the third division of the eleventh ward, and the third division of the sixteenth ward, by which fortyseven votes were gained to contestant, and which have been already rejected, the recount of this division, if allowed, would be of no avail to him, and becomes, therefore, comparatively unimportant.

The committee are therefore unanimously of opinion, that, according to the contestant, all the corrections claimed by him in the other divisions, he is nevertheless not entitled to the fifty-four votes claimed by him to have been by mistake omitted from his count in the third division of the eleventh, the third division of the sixteenth, and the first division of the nineteenth wards, and is consequently not elected. They therefore recommend the adoption of the following resolutions:

Resolved, That John Kline is not entitled to a seat in this house as a representative in the 37th Congress from the third congressional district in Pennsylvania.

Resolved, That John P. Verree is entitled to the seat now occupied by him as a representative in the 37th Congress from the third congressional district in Pennsylvania.

The debate in the House was brief, and had reference principally to disputed facts rather than legal principles. The subjoined extracts are taken from it: Mr. DAWES. # I suppose the House will recollect, from the discussion which was had in the case of the contestant, Butler, from the first congressional district of Pennsylvania, precisely what the law is in reference to the preparation and counting of these ballots, the returns to be made, and the preservation of the ballot-boxes. There are judges and other officers appointed to attend upon elections, to count the ballots in the manner prescribed by the statute, and to make a sworn return upon the night of the election, and that is to be taken on the Friday following to a board of officers composed of the return judges, and they are to certify the result of the polls of the district to the governor, and the governor is to issue his proclamation. All this was done in this case. But it is claimed that, as to twelve of these districts, there was carelessness or mistake in the count on the night of the election, and that the returns so made were false in fact. There is no allegation and no claim that they were intentionally false on the part of the return judges. It is the duty of these judges, after having so counted the votes, to put them all back in the same ballot-boxes, tying up the ballot-boxes in a particular manner with tape, to put a seal upon it, and carry it to the magistrate residing nearest to the precinct, and it is his duty to keep the ballot-box. There is no provision of law as to how long he shall keep it, or in what particular manner; but it is to be kept for the purpose of being subject to be opened by any tribunal authorized to examine into the election.

These ballot-boxes were all so returned. There was in this case no difficulty in the mind of the committee as to identifying the ballot-boxes of these twelve divisions. On that point

each of the aldermen who received the ballot-boxes testifies to the fact that the particular ballot-box was the one that it claimed to be. In all of these cases about which there was contest in this election, the boxes were labelled when received.

The election was held on the second Tuesday of October, 1860. This contest was commenced immediately on the governor's giving his certificate of election to the sitting member. The notice of contest was then served by the contestant, and an answer was made in due season by the sitting member. Testimony was taken on the part of both contestant and sitting member, but the ballot-boxes were not approached until the 8th of January following. From the 8th to the 26th all these ballot-boxes were opened in the presence of the magistrates taking the testimony. They were therefore in the custody of the magistrates from the second Tuesday in October until about the second Tuesday in January-a period of three months. They were therefore in the custody of the law, although the law itself provided very inadequately for their security, and has since seen its defect and remedied it by additional legislation.

In a former case of contested election in this house, a majority of the committee were of opinion that the ballot-boxes, being in the custody of the law, being kept as prescribed in the law, although insecure, were to be presumed, in the absence of testimony that they were tampered with, as having been kept safely, and were of opinion that these boxes should be recounted. It was in the absence of any direct testimony that the majority of the committee came to that conclusion. However, the House differed with that majority, and established what the committee might have treated as a precedent; that is, that if the boxes were kept in an insecure place, although it was the place prescribed by law, it was not safe, even if there was no testimony as to their being tampered with, to allow a recount of them to control the sworn return made on the night of the election. The committee might well consider itself bound by that precedent. It was a conclusion which had great force upon its judgment. But the case is not that. This case has all the elements of that case, and something more. The ballot-boxes were in that case, as in this, in the custody of the law for a period of three or more months. They were in just such a custody; in a custody which the committee felt, in this case as in the other, to have been insecure; in a place where they were exposed, and where there might have been tampering with them. I do not say that the committee would have reversed its decision if that were all. But, touching three of these boxes, there was positive testimony which shook all faith that the committee might otherwise have had in the integrity of the boxes, and especially when arrayed against sworn returns. The committee did not feel at liberty to control the returns by these boxes. Conceding to the contestant all of the recount which he has obtained, he is elected by only a majority of eight. In three of these boxes he has claimed to have gained fifty-four votes. It would be necessary for him to avail himself of these three boxes entirely in order to change the result. Accordingly both the sitting member and contestant directed the attention of the committee especially to these three boxes; the contestant to what he claimed to be evidence of the security of these boxes, and the sitting member to what he claims to be proof that the boxes had been tampered with. I propose simply to call the attention of the House to these three boxes, and then, on the conclusions which the House shall feel bound to come to touching them, will be decided the whole case.

Mr. JOHNSON. In the case of Butler vs. Lehman, decided at the present session, the gains shown were large gains-some two hundred votes; and I am free to say that where there have been opportunities to perpetrate frauds upon the ballot-boxes, and, upon a re-examination and recount, the gains are large and altogether upon one side, and that upon the side of the parties who have had the custody of the boxes, it is a suspicious circumstance, to say the least of it; but that is not this case. Here the gains and losses are trifling and alternate. The large gains are made by a single transposition of the figures, as I have stated.

Now, sir, the committee seek to overthrow these ballots by showing that their custody has not been such as to entitle them to that respect which the legislature of Pennsylvania intended to be given to them when they provided that they should be deposited with the aldermen and justices of the peace, and kept sealed up by them in their offices for further purposes of investigation and counting. They say they have no doubt that the boxes opened and counted were the identical boxes deposited with the aldermen, but they have doubts whether the custody of the boxes was such as completely to preclude the possibility of their being tampered with; and, strange to say, they have thrown doubt upon the ballot-boxes, because the contestant has not been able to prove a negative, to wit: that from the time the boxes were left in the offices of the aldermen up to the time when they were opened and examined they had not been tampered with. They say:

'Upon the question of security, whether these ballot-boxes, when opened and recounted before the magistrates, were in the same condition as when sealed up by the election officers and delivered to the aldermen on the night of the election, there was much conflicting testimony and much doubt."

Now, sir, the law of Pennsylvania is, that every intendment must be made in favor of the faithful discharge by every officer of his official duty, and it is not a mere matter of presumption. We have no right to say that we fear he has not done his duty, and therefore we will disregard his acts. The law of Pennsylvania gives to every man intrusted with official

duties the presumption of law that he discharges his duty faithfully; but here a presumption is set up against the aldermen-not against any one alderman in particular, but against the whole community-that because. forsooth, there is a majority for John Kline of eight votes, out of some eighteen thousand cast at the election, somebody must have tampered with the ballot-boxes; that some fraud must have been perpetrated a presumption that the parties have been guilty of a crime which, by the act of the legislature of Pennsylvania, sends them to the penitentiary for not less than a year.

The House adopted the resolutions reported by the committee, March 4, 1862-yeas 105, nays 13.

NOTE. The debate in this case is reported in volume 47 Congressional Globe. For the report: Mr. Dawes, page 1054; Mr. Kelley, page 1061. Against the report: Mr. Johnson, page 1056; Mr. Wright, page 1058.

THIRTY-SEVENTH CONGRESS, SECOND SESSION.

BEACH, of Virginia.

A State legislature and a constitutional convention being in existence at the same time, the convention cannot assume legislative functions in the presence of the legislature and fix the time and place for a congressional election.

The provisions of the law of Virginia not having been complied with, and a majority of the voters in the district having had no opportunity to participate in the election, it was treated as a nullity.

IN THE HOUSE OF REPRESENTATIVES,
MARCH 3, 1862.

Mr. DAWES, from the Committee of Elections, made the following report: That they have had the subject-matter of said memorial under consideration, and find the following facts: This district is composed of the counties of Spottsylvania, Alexandria, Fairfax, Fauquier, Prince William, Rappahannock, Culpeper, Stafford, and King George, and the election, under which Mr. Beach claims the seat, was held on the 24th of October last, in pursuance of a proclamation of Governor Pierpoint of October 12, 1861. The memorial may be found in Mis. Doc. No. 26, of the present session, and the following is a copy of the credentials of the memorialist:

The undersigned, conductor and commissioners of election, having been duly appointed and sworn, do hereby certify that they acted as such conductor and commissioners of election; that said election was held on the 24th day of October, 1861, at the court-house in Alexandria county, in the seventh congressional district of Virginia, pursuant to law, and that the following is a true statement of the vote as exhibited by the poll-book, viz: For member of Congress, Samuel Ferguson Beach received one hundred and thirty-eight votes, and Charles B. Shirley, for the same office, received eleven votes; and we further certify that there were no other polls of election held at any other precinct in said county of Alexandria, nor in any other of the counties of this congressional district, as far as we can learn and believe, and that all the other counties of this congressional district are and were, at the time of said election, included within the lines of the rebel army; and we, therefore, further certify that said Samuel Ferguson Beach was, by a majority of all the votes polled in this congressional district, duly elected a member of Congress of the United States. Given under our hands this first day of November, 1861.

His Excellency FRANCIS H. PIERPOINT,

Governor of the State of Virginia

WALTER L. PENN,

Conductor.

JAMES VANSANT,
T. A. STOUTENBURGH,

Commissioners.