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meet him, and General Hurlburt issued a military order postponing the (Shep to some future day. Between the Union and the rebel armies every part district was either under the armed occupation of contending armies, or in sav.) a state of commotion that freedom of election became an impossibility.

Where the military order of General Hurlburt postponing the election did t reach, attempts were made to vote. A battle was fought on the very day a which the election was to be held, and in sight of the polls. One sheriff was seized by the rebels, his writs of election taken from him and destroyed, and he compelled to give bond not to bold an election at all, and to destroy any returns which were sent to him. Mr. Hawkins himself was driven from the district and State, and only returned after the day of the election at the greatest peril. On his return he gathered up himself, as well as he was able, such returns as are here presented, and procured from the general commanding at that post (General Sullivan) "special order No. 29," which accompanies this report as a certificate.

Too much praise cannot be awarded the Union men of that district for their constant and unwavering devotion to the cause of their country through suffering and peril which none but heroes would endure without complaint; and in all the qualities for which this people command our admiration, Mr. Hawkins has shown himself to be their fit representative.

The committee have struggled to find some way to give effect to this effort to secure representation; but they have not been able to bring it within any of the rules adopted by the House in determining the election cases which are analogous to this. How far the election was conducted at the polls in conformity to the law of Tennessee it has been impossible to ascertain. No one would expect to find or should require rigid conformity under the peculiarly trying circumstances under which this attempt was made. But the evidence of any votes at all will be seen, by a reference to the accompanying papers, to be of the most vague, uncertain, and unsatisfactory character. The committee have but to call attention to one or two of these papers. An unofficial person, A. G. Shrewsbury, certifies that he has seen the return of votes in Henderson county, and that "there were over seven hundred votes polled in that county, over seven hundred of which were for Alvin Hawkins, and the balance, numbering some twenty or thirty, were scattering, and for other persons." This comes, so far as appears, from a private citizen, and has not even the sanction of an affidavit. In no sense can it be taken as evidence. Of a similar character is what purports to be a return from Chestnut Bluff, a precinct in Dyer county, to which the committee call attention. These papers are the bases of the certificate of General Sullivan. The law requires all the returns to be made to the governor, and he is to make the certificate. It was impossible for this to be done, and Governor Johnson has furnished nothing. The committee are of opinion that it would be a very unsafe precedent, sure to be fruitful of mischief, to take, as evidence of an election, the papers here presented. Mr. Hawkins himself was driven from the district and has no personal knowledge of the facts. He has letters from highly respectable citizens corroborating, to some extent, these papers; and while, as matter of fact, the House may not doubt that these transactions have taken place, yet it would be most dangerous to take, as legal proof of an election, the papers here presented.

Although the evidence, as far as it goes, tends to show that 1,900 votes were cast, nearly all for Mr. Hawkins, yet it also appears that a very small part of the district participated in this election. Some parts had already voted on the 13th; some had postponed still further the day of election, under the military order of General Hurlburt, but more was at the very moment under the control and occupation of contending armies in battle array, in which an election was an impossibility. Under these circumstances, if it be taken as satisfactorily shown that 1,900 votes were polled, that fact must be taken along with the

nat they were polled in a very small part of the district, and that much greater portion of it, for the reasons stated, had no part or lot in the matter. The district at the last election for representative cast 18,000 votes.

The committee are again compelled to come to the same conclusion they have reluctantly arrived at in other cases, adverse to the right of Mr. Hawkins to a seat in this house upon the state of facts presented to them, and which they herewith report. They accordingly recommend the adoption of the accompanying resolution:

Resolved, That Alvin Hawkins is not entitled to a seat in this house as a representative from the ninth district in Tennessee.

The resolution was agreed to March 3, 1863, without debate or division.

A large part of the district not participating in the election, it being at least partially within the military control of rebels, the election was not recognized as valid.

IN THE HOUSE OF REPRESENTATIVES,

FEBRUARY 8, 1864.

Mr. DAWES, from the Committee of Elections, made the following report:

That they have had said credentials and memorial under consideration, and have examined proofs and heard the statements and arguments of both the gentlemen claiming to have been duly elected as the representative from this district, and find the facts to be as follows:

The memorial of Mr. McKenzie is in Miscellaneous Document No. 12, and Mr. Kitchen's credentials are annexed to this report. These gentlemen claim to have been elected on the fourth Thursday of May last, the day prescribed by law for holding elections for State officers and representatives in Congress. The State was divided into districts for the election of representatives in Congress, in conformity to the act of Congress upon that subject, by the legislature of Virginia, on the 30th day of January, 1863, and by that act this district was composed of the counties of Alexandria, Berkeley, Frederick, Shenandoah, Jefferson, Clark, Warren, Loudon, Fauquier, Fairfax, and Prince William. The following is the result of that election, as far as known :

SEVENTH CONGRESSIONAL DISTRICT.

For Lewis McKenzie.-Alexandria, 252; Fairfax, 175; Prince William, 49; Loudon, 205; Jefferson, (Harper's Ferry,) 33; Berkeley, 2. Total, 716. For B. M. Kitchen.-Alexandria, 61; Fairfax, 120; Jefferson, (Shepherdstown,) 51; Berkeley, 730. Total, 962.

1

For Upton.-Alexandria, 40; Fairfax, 55; Loudon, 8; Jefferson, (Shep herdstown,) 1; Berkeley, 7. Total, 111.

For Gallagher.-Alexandria, 11; Loudon, 2; Jefferson, (Harper's Ferry,) 252; Berkeley, 3. Total, 268.

For Minor.-Alexandria, 1. Total, 1.

For Massey-Alexandria, f. Total, 1.

From this result it appears that if all the votes thus cast were taken into the account as duly cast for representatives in Congress for this district, Mr. Kitchen received a plurality of two hundred and forty-six votes over Mr. McKenzie, and if there were no other objections, would be entitled to the seat. But the claimant, McKenzie, by his notice of contest, (Miscellaneous Document No. 12,) contends that Berkeley county, where Kitchen received a large vote, and without which he would be in a small minority, was, on the day of election, no part of the seventh congressional district of Virginia, but was at that time a part of West Virginia. and consequently not entitled to vote for a representative in this district. This claim is founded on the following legislation, viz:

An act of the legislature of Virginia passed May 13, 1862, giving consent of that State to the formation of a new State within the jurisdiction of the State of Virginia, the second section of which provided" that the consent of the legislature of Virginia be, and the same is hereby given, that the counties of Berkeley, Jefferson, and Frederick shall be included in and form a part of the State of West Virginia, whenever the voters of said counties shall ratify and assent to the said constitution at an election held for that purpose at such time and under such regulations as the commissioners named in said schedule may prescribe;" an act of Congress passed December 31, 1862, admitting West Virginia into the Union; an act of the legislature of Virginia passed January 31, 1863, giving further consent of that State to the admission of Berkeley county into the State of West Virginia; and an act passed by West Virginia August 5, 1863, admitting the county of Berkeley, and making it a part of that State.

Under the first of these acts of the State of Virginia it does not appear that anything was done by the voters of Berkeley, Jefferson, and Frederick, to "ratify and assent to the said constitution" of West Virginia, as provided in that act; and if not, of course the act had no effect in transferring the county of Berkeley to West Virginia. If they did proceed to "ratify and assent" as therein required, still neither of these counties is embraced in the act of Congress admitting West Virginia, passed December 31, 1862. The second act of the State of Virginia, giving further assent to the admission of Berkeley alone into the State of West Virginia, passed January 31, 1863, was dependent for its effect upon two conditions precedent contained in the act itself: First, that on the fourth Thursday of May, 1863, a majority of the voters of Berkeley should so decide. And secondly, that the legislature of West Virginia, after this result is certified to it by the governor of Virginia, shall admit the same into the State of West Virginia. The language of the statute is as follows: "If a majority given at the polls opened and held pursuant to this act be in favor of the said county of Berkeley becoming a part of the State of West Virginia, then shall the said county become a part of the State of West Vir ginia when admitted into the same with the consent of the legislature thereof." Now, the consent of the legislature of West Virginia to the admission of the county of Berkeley into that State was not given until August 5, 1863; (see act of the legislature of West Virginia of that date.) Until that day, therefore, it was no part of the new State. By no construction, then, can it be held that on the 28th day of May, when this election was held, Berkeley was a part of West Virginia. But there is a further objection to this claim of Mr. McKenzie, The act of Congress admitting West Virginia into the Union enumerates the counties of the old State which shall compose the new one-and Berkeley is not one of them. Congress has never consented to the transfer of the county of Berke

ley from the one State to the other, and without that consent it cannot be done. Berkeley county is, therefore, still a part of the old State of Virginia. The vote of Berkeley county must consequently be counted in the result, unless there be some other and valid objection to it.

In his notice of contest, given by Mr. McKenzie to Mr. Kitchen, he further contests the votes of Berkeley county on account of alleged informality in the conducting of the election and making the returns. The only irregularity shown consisted in the fact that the commissioners of election in Berkeley county certified the result directly to the clerk of Alexandria county, instead of certifying it to the clerk of Berkeley county, who is required by law to record it in a book and send a certified copy of it to the clerk of Alexandria county. The commissioners of Berkeley certified the result as follows-appending to the certificate the reason for so doing-the truth of which was not disputed:

MARTINSBURG, BERKELEY COUNTY, VIRGINIA, May 30, 1863. We, George Sharer, Elias M. Pitzer, and John W. Pitzer, commissioners at the courthouse of said county, do certify that we caused an election to be held in said county, on the 28th day of May, 1863, for governor, lieutenant governor, attorney general, State senator, two delegates in the general assembly, and a member of Congress for the seventh congressional district, and that the following is a true return of the votes cast at said election, to wit:

For Governor.-F. H. Pierpoint, six hundred and ninety-five votes.

For Lieutenant Governor.-Gilbert S. Miner, five hundred and fourteen votes; Philip C. Pendleton, one hundred and thirty-five votes.

For Attorney General.-S. F. Beach, two hundred and fifty-eight votes; Thomas R. Bowden, three hundred and forty-eight votes.

For State Senator.-Joseph A. Chapline, six hundred and fifty-eight votes.

For Congress of the United States.-B. M. Kitchen, seven hundred and thirty votes; Lewis McKenzie, two votes; Charles H. Upton, seven votes; John S. Gallagher, three

votes.

For House of Delegates.-Robert Lamon, one hundred and eighty-two votes; John W. Daily, one hundred and seventy-one votes.

Given under our hands this 30th day of May, 1863.

GEORGE SHARER,

ELIAS M. PITZER,

JOHN W. PITZER.

Commissioners.

To the CLERK of Alexandria County Court, or to

L. A. HAGANS, Secretary of the Commonwealth of Virginia.

:

MAY 30, 1863.

The undersigned, commissioners, named in the foregoing certificate, hereby state that there is no clerk of the county court of Berkeley county, the county officers, including said clerk, elected last year, having failed to qualify that the records of the office have been removed; that the office and court-house are occupied by the United States military; and that it is impossible, therefore, to certify to the "clerk" of the said county court of Berkeley the result of the election, and consequently the law cannot be literally complied with, which requires said "clerk" to record said return in a book in his office, and to transmit a fied" copy of such result to the clerk of "the county first named in the law."

"certi

GEORGE SHARER,
ELIAS M. PITZER,
JOHN W. PITZER.

It was not contended that any fraud was committed, or that the true result in Berkeley was not here certified, and therefore the committee were of opinion that the votes should be counted. This determines the result as to Mr. McKenzie. If these votes were counted he did not receive a plurality, and would not, in any event, be entitled to the seat.

The question then recurs, has Mr. Kitchen, who received a plurality of all the votes cast, been elected? According to the precedents heretofore established in similar cases, and already adopted by this committee in the case of

Joseph Segar, the answer to that question will depend upon the condition of those parts of the district in which no election was held, and the relative proportion which those parts bear in population to that part of the district in which the polls were opened and elections held. A recurrence to the returns will show that an election was held in Alexandria, Fairfax, Loudon, and Berkeley, and polls were opened at two places in Jefferson, and one in Prince William; while there was no election in Frederick, Shenandoah, Clark, Warren, Fauquier, and the other precincts of Jefferson and Prince William. The population in 1860 of Alexandria, Fairfax, Loudon, and Berkeley, where there was a general election, was 58,785; while that of Frederick, Shenandoah, Clark, Warren, aud Fauquier, where there were no polls opened at all, was 65,736. If the population of the two counties-Prince William, where one poll only was opened, and Jefferson, where two only were opened-be divided equally between the represented and unrepresented portions of the district, the result would be that the aggregate population in the former would be 70,341; in the latter, 77,292. A division of the entire free population by the same lines will show, in that portion in which elections were held, a free population of 55,530; in that where no election was held, 55,561. Of free white males, there were in the former 25,568, and in the latter 26,161.

All are familiar with the condition of this district since the breaking out of the rebellion. It is the district immediately opposite the District of Columbia, on the south side of the Potomac. It has been more than any other district the theatre of the war, and has been ravaged and devastated by contending armies, till its condition is deplorable. Even that part of it now within the federal lines is constantly exposed to raids from the enemy, and its inhabitants pillaged and taken prisoners, or driven from their homes to seek shelter under the guns of our forts, or within the District of Columbia. While this case was being heard by the committee, the house of Mr. Kitchen, one of the claimants in Berkeley, was surrounded in the night-time by guerillas and sacked, while he, escaping in the darkness, is here a fugitive. On the day of this election, more than one-half of this district, in territory and in population, was in the armed occupation of the enemy; and much more was disputed ground, sometimes in the possession of one, and sometimes in that of the other side. And the question presented by the case is, whether in a district so situated the House can treat as the choice of the district, duly elected, the person receiving a plurality. of the votes cast, under the circumstances which existed there.

The committee found some difficulty in coming to a decision upon this question; but the conclusion to which they have arrived, after a careful consideration, they now submit to the House.

The case comes so near to what seems to be the dividing line, as established by the precedents of the last House in similar cases, and the judgment of this committee in the case of Joseph Segar, heretofore reported to the House, that the difficulty lies in determining upon which side of that line it falls.

It will be seen that between that part of the district where polls could be and were opened, and the part held by the enemy, there is very nearly an equal division, whether it be divided by territorial limits, by the aggregate of population, the entire free population, or the white male population. In each division the part within the occupation and control of the enemy is a trifle the greatest, but it may be treated practically as about an equal division of the district between the rebels and the Union forces. But it should not be overlooked, that while that portion under rebel control is held so by force of arms and the presence of rebel bayonets, it is equally true that the remainder of the district is, as yet, within our lines, and under our sway, only by a like force of arms and presence of loyal troops. If the Union forces were withdrawn from any portion of the district, it would be immediately overrun by rebel armies. Practically, the seventh congressional district of Virginia, the scene of some of