| PREVIOUS | NEXT | NEW SEARCH |
A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journal of the Confederate Congress --TWENTY-NINTH DAY--SATURDAY, March 22, 1862.
OPEN SESSION.
The House met pursuant to adjournment, and was opened with prayer by the Rev. Dr. Doggett.
Mr. Smith of North Carolina, from the Committee on Elections, reported and recommended the passage of the following resolutions; which were read, made the special order for Wednesday next, and ordered to be printed, to wit:
The Committee on Elections, to whom was referred the petition of J.P. Johnson, praying to be allowed to contest the seat of A. H. Garland, and claiming the right thereto, as Representative from the Third Congressional district of Arkansas, with the other papers pertaining to the case, have had the same under consideration, and ask leave to make a report.
The report heretofore made, presented to the House the question of a further extension of time to enable the parties to come to distinct and specific issues, and to collect the evidence either might deem material thereto.
The refusal of the House to proceed and the recommittal of the whole matter, if not to be taken as instructions, are, nevertheless, deemed clear indications of an intention that your committee report the facts of the case and the points and merits of the controversy arising upon them in its present aspects; the duty thus imposed they now undertake to discharge.
Your committee find that according to the returns from the several counties of the Third Congressional district of Arkansas sent to the office of secretary of state as required by law, and published in the proclamation of the governor on the 10th day of December, 1861, the sitting member, A. H. Garland, received 2,157 votes, and the contestant, J. P. Johnson, received 2,125 votes, while four other candidates received a less number each. Upon this declared statement of the vote, the sitting member has a plurality of 32 votes over contestant, and was awarded the certificate of election. In arriving at these aggregates, the vote cast in Arkansas County, which alone is drawn in question before the committee, is reported from that county by the returning officers in the following words:
"A. H. Garland received one hundred seventy-five votes."
"J. P. Johnson received seventy-three votes."
And there are other votes reported for other candidates, which it is not necessary for a proper understanding of the case, to set out.
The vote of the county is evidenced by what purports to be
"An abstract, of the returns of the election held in Arkansas County, State of Arkansas, on Wednesday, the 6th day of November, 1861, for a Representative to the Congress of the Confederate States of America for the Third Congressional district as appears from returns made to this" (the county court clerk's) "office," and the "abstract" is certified by a deputy county court clerk, in the name and on behalf of his principal, Joseph H. Maxwell, in an official attestation and by two other persons, Lewis Thompson, a justice of the peace, and A. H. McDonald, a householder, to be a true statement of the "polls of the election held in said county on the 6th day of November, 1861," "according to the poll books returned and filed" in his office. The certificate bears date, the 13th day of November, the seventh day after the election.
A second return dated December 7, and bearing the official attestation of the clerk alone, was prepared by him and deposited with the secretary of state; which upon its face also purports to be "A list of votes given on the 6th day of November, 1861, in Arkansas County, Ark., for Congress," and gives in detail the separate vote at the election precincts of the county. This return is declared to have been made after examination of the poll books and to be "A full and correct list" of the votes, and gives the sitting member 186 votes, and the contestant 98 votes. A certified copy of this return from the office of the secretary of state was placed in the hands of the committee by the sitting member.
A third return, unexceptionable in form, certified officially by the clerk and the same persons who certify the first, was prepared on the 10th of December, three days after the second, and transmitted to the secretary of state, containing a tabular and specific statement of the vote of Arkansas County, as cast at the several precincts. The certificate declares that on examining the poll books it is ascertained that "A. H. Garland received 195 votes and J.P. Johnson 135 votes," and that this "is a true and correct abstract of the vote as returned from the several precincts in said county."
Page 134 | Page image
The evidence of these returns consists in authenticated transcripts of papers on file in the office of the secretary of state. Two such transcripts were before the committee. One of them was filed by contestant with his petition and referred, containing the first and third returns only. The other was offered before the committee by the sitting member and contained the first and second returns.
By the first return A. H. Garland is elected by a plurality of 32 votes; by the second he is elected by a plurality of 18 votes; and by the last return J. P. Johnson is elected by a plurality of 8 votes. Accompanying the transcripts and certified by the same authority was a copy of an explanatory letter or statement from the clerk, of the date of the last return, which as an unsworn declaration, and not of the kind required to be officially made, and thus become a record, your committee did not consider themselves at liberty to regard as evidence.
According to the laws of Arkansas regulating elections, and which may be found in Gould's Digest, chapter 62, two poll books of electron are kept by the judges at each place of balloting, one of which they retain in their own hands for public inspection, and the other is deposited within three days with the county court clerk. On the fifth day after an election, and sooner if the returns from the precincts are all in, these poll books are to be compared and an abstract thereof made out and sent by mail to the secretary of state. If the returns have not been sent in, the clerk is required to dispatch a messenger after such as are missing, and in this case seven days are allowed for comparing the polls. The duty of comparing the polls and preparing the abstract is to be performed by the clerk and two justices of the peace, and if the latter can not be conveniently had, two sworn householders, in place of the justices, and this abstract, with the certificate of at least two of the number attached, must be transmitted as already stated.
The statute directs the secretary of state, if he fail to receive the abstracts for the two next succeeding mails after they are due, to send for such as are wanting, and when all have been received, or within thirty days if they have not, to cast up the votes from the different counties, in presence of the governor, and ascertain the result. And the governor is directed immediately thereupon, by proclamation, to announce the same and award his certificate.
The ballots themselves, cast at the several places of voting, are also required to be deposited by the judges with the county court clerk.
The attention of the committee has been called to the act of the Congress of the United States of February 19, 1851. in reference to contested elections and its bearing upon the case. This act requires a contestant to give notice of his intention to contest to the party declared to be elected, within thirty days thereafter, and therein to specify particularly the grounds upon which he proposes to contest the right of the latter to his seat.
It requires the party thus notified, within thirty days thereafter, to deliver to the contestant a copy of his answer, which must admit or deny the allegations made in the notice.
The other provisions of the statute relate mostly to the methods of taking proofs, and limit the evidence to the matters put in issue.
Various questions are presented upon tiffs statement of the case, to which the attention of your committee has been directed, and which they believe are disposed of in the conclusions to which they have come and which they will proceed briefly to announce.
THE NOTICE.
The committee is of opinion that the notice given to Mr. Garland, on the 23d of December, as admitted by him, although less specific in its terms than it might have been made, conforms, nevertheless, substantially to the requirements of the act, and is sufficient. It distinctly assigns error in the returns from Arkansas County, the correction of which by the poll books would make a relative change of 40 votes, and reversing the result, elect contestant by a plurality of 8 votes.
The election of Mr. Garland is impeached on this ground and the notice directs his attention to it.
Your committee can not allow to the failure of the sitting member to answer the allegations in the notice, the effect, without other proofs, of dispossessing him of his seat, and still less of admitting contestant in his place. Analogies drawn from rules of pleading and practice, adopted in legal tribunals in the investigation of personal controversies and which affect individual interests only, are entirely inapplicable to questions involving the privileges of the House and the political rights of constituencies and States. Nor is there anything in the act of Congress which gives countenance to the argument based upon them. In the judgment of your committee the range of their inquiries must be more comprehensive, and they are to ascertain
Page 135 | Page image
who is elected and entitled to the disputed seat. If the evidence require, they may refuse the seat to beth contestants and award it to a party not before them.
Your committee will not stop to point out all the difficulties of a proposition which requires them to take as conclusive the unanswered averments of a notice. They will present but a single one. Suppose there were two contestants, neither of whose notice is answered, to whom shall the seat be given? Or can the party in possession of the certificate, by answering one and refusing to answer the other, at his own pleasure transfer the seat to the one he may prefer? And might not a person ineligible under the Constitution by this means become a member of the House? Your committee could not then properly arrest the inquiries they are charged to make as to the right to the contested seat, but proceeded to examine such evidence as was produced before them in order to determine upon its sufficiency to warrant them in reversing the decision of the governor of the State.
It is to be observed that there are three distinct, independent, and essentially conflicting abstracts, each certified by the officer having in custody the original, as true and made up from the one set of poll books in his office. Of these, the first only is within the extreme limit allowed by law, and is accepted and acted on by the governor. It is certified by a deputy clerk, authorized by law, a justice of the peace, and a householder, and in form complies with the requisitions of law. It does not appear that McDonald, the householder, was sworn, and if the averment of his being sworn is deemed necessary to the validity of his act, which the committee are not prepared to admit, still the attestation of the other two is good and sufficient under the statute. It might be further suggested, if parol proof were inadmissible to show that he was sworn (and of this there seems to be no just grounds of doubt), whether the governor must not be assumed to have had evidence of whatever was material to the validity of the return when he acted upon it. The second return is the act of but a single officer and was prepared more than a month after the election. The third return is unobjectionable in form, but was made up still later, and could not have reached the secretary of state until the count required of him had been made and the result of the election ascertained and declared. This must be apparent from the fact that, the return and proclamation bear the same date.
But the committee are not restricted as was the governor, and whether he should have considered the last return or not, they are to ascertain the true state of the vote. Upon the proofs before them, they are unable to report the vote of Arkansas County as differing from that declared in the proclamation. They know no principle upon which preponderance is to be given to the last of the conflicting returns over the first. Whether the discrepancy is the consequence of clerical error or results from alterations made in the books during the interval--or because one is partial and the other full--or from some other cause, your committee will not undertake to infer, in the absence of any just principle of evidence upon which such inference can be made. Official papers returned within time ought to be invalidated by others not so returned only upon clear and satisfactory proof of error. Such proof has not been given to your committee.
It is obvious that the only means of arriving at the true vote of Arkansas County would be the production of the poll books themselves, of which there should be double sets, or authenticated copies direct from the office in which they are kept. This evidence would reveal the correct vote, while conflicting abstracts or copies successively sent to another office and thence certified to us never can. Or parol evidence might be produced in support of the correct return if either be correct, and of the actual vote if none are. The preservation of the ballots would facilitate the inquiry. Neither party has resorted to this original and primary source of evidence, in its nature decisive of the facts.
The sitting member holds his place upon the floor by the adjudication of the House in his prima facie title under the governor's certificate. Your committee can not upon the facts before them deprive him of the advantages he thus holds and undertake to reverse the action of the executive authority of Arkansas.
After the committee had proceeded thus far in their investigations and conclusions upon the evidence before them, an application was made by contestant, supported by affidavit, for time to take other and further testimony as to the vote of the county of Arkansas. The committee understood the sitting member to ask that the privilege should be granted to him to take further evidence generally, provided any time is granted for the purpose asked by contestant. Your committee admit that the evidence submitted by contestant, though insufficient for the purpose of ousting the sitting member, for reasons already stated, is yet of such force as to entitle the application for further time to respectful consideration. And as this is the first contested election case under our Government, as its decision and the rules established by it will be for manifest reasons entitled hereafter to much weight as a precedent, and as several of your committee seriously doubt whether the act of the Congress of the
Page 136 | Page image
United States in such cases is of binding force, and certainly was not observed by either party thus far, your committee, seeing that no damage could result to either the contestant or sitting member or their constituency, resolved, as far as possible and justice would admit, to seek to establish such a rule as would be a guide in future cases.
Your committee propose to act upon the case as if it had just arisen, and to suggest a reasonable time wherein a contestant must give notice of his purpose to contest, the time in which a sitting member must reply to such notice, and the time and rules, etc., in which and under which evidence shall be taken. They propose that this House shall formally adopt the rules prescribed by the act of the Congress of the United States, and thus add to whatever force they may now have the solemn sanction of the House in the first contested election case that comes before it.
They therefore report the following resolutions:
W. N. H. SMITH, Chairman, etc.
Mr. Jones, by the consent of the House, offered
A joint resolution to aid our prisoners in the hands of the enemy; which was read the first and second times.
The rules were suspended, and the resolution was taken up, and having been read as follows, viz:
That the Secretary of War be authorized to apply out of the contingent fund of the War Department such sum of money from time to time as in his judgment may be necessary for the aid of prisoners of war in the hands of the enemy,
Mr. Foote moved to amend by adding thereto the words
the same to be deducted from whatever may be now due or may hereafter become due to them by the Government for military services.
Mr. Jones called for the previous question; which being seconded, the amendment of Mr. Foote was rejected.
The resolution was then engrossed, read a third time, and passed.
On motion of Mr. Pryor, the House took up for consideration the report of the Judiciary Committee in relation to what legislation is necessary to enable officers of the Army to hold seats on the floor of Congress.
Mr. Kenan [of Georgia], by consent, moved the adoption of the following resolution:
Resolved, That the members of this House who hold offices in the Confederate Army are not, under the Constitution, entitled to hold both offices.
Mr. Elliott, from the Committee on Enrolled Bills, reported as correctly enrolled
A bill to regulate the compensation of members of Congress;
And the Speaker signed the same.
Mr. Holt moved to amend the resolution of Mr. Kenan by substituting therefor the following, to wit:
Resolved, That officers of the Confederate Army mustered into the Confederate service, irrespective of the fact whether commissioned by State or Confederate
Page 137 | Page image
authority, are not entitled to seats on this floor, unless they resign their commissions in the Army, and that any such officers now members of this House shall be entitled to retain their seats upon such resignation.
Mr. Swan moved to amend the amendment of Mr. Holt by substituting therefor the following, to wit:
Whereas it appears that Roger A. Pryor, William Smith, John B. Baldwin, of Virginia, and Julian Hartridge, of Georgia, have respectively been commissioned by the governors of the States above mentioned, the first three named as colonels commanding regiments, and the last as lieutenant of artillery of volunteers, which commissions they have not resigned: and
Whereas it further appears that the regiments, with the colonels commanding, and the company commanded by Lieutenant Hartridge have been mustered into the service of the Confederate States; and
Whereas it further appears that the persons above named are occupying seats upon the floor of this House: Be it therefore
Resolved, That the Committee on Elections inquire and report whether the said Roger A. Pryor, William Smith, John B. Baldwin, and Julian Hartridge are entitled to places on this floor as members of this House.
Pending which,
A message was received from the Senate, by their Secretary, Mr. Nash; which is as follows:
Mr. Speaker: The Senate have passed, without amendment, a joint resolution of this House of the following title, viz:
Joint resolution for the relief of Mrs. Julia Tyler, executrix of Hon. John Tyler.
On motion of Mr. Boyce,
The House then adjourned until Monday at 12 o'clock.
PREVIOUS SECTION .. NEXT SECTION .. NAVIGATOR
| PREVIOUS | NEXT | NEW SEARCH |