The undersigned, having examined carefully the evidence in this case, have arrived at the conclusion that the Hon. Daniel W. Voorhees was duly elected a representative to the thirty-ninth Congress, and is entitled to retain the seat he now holds. Before going into the merits of the case, we will very briefly notice a preliminary question. Mr. Voorhees insists that there is no legal evidence in behalf of the contestant in the case, or before the House; that Albert Lange, as mayor of the city of Terre Haute, had no authority in law to go out of his city and county, and take the depositions of witnesses outside of his city; that, having no authority there to swear witnesses, the witnesses were not, in fact, sworn at all, and consequently there is no legal evidence whatever in the case. We believe that the law in this matter is with the sitting member. The only authority that said mayor has by the laws of Indiana to administer oaths is derived from section 1 of the act of March 9, 1861, which provides "that justices of the peace in their respective counties, notaries public judges of courts in their respective jurisdictions, mayors of towns and cities is their respective towns and cities, * * * be hereby authorized to administer oaths generally, pertaining to all matters wherein an oath is required." (2 Gavin and Hord's Indiana Statutes, p. 577.) And there is no act of the legislature and no law of Congress conferring upon the mayor of a town or city power to administer oaths outside of the limits of his town or city. No one can doubt that an oath administered by a person without authority is a void act. It imposes no legal obligation on the person swearing to state the truth, nor is it punishable under any law for swearing falsely in such a case. It is admitted that the legislature of a State, as well as Congress, may authorize any person by name, or by their official designation, to administer oaths in all cases required under the laws of their respective governments. But in this case no such power is given, and the witnesses are, in fact, not sworn at all. We, however, merely state the point, and leave it for the consideration of House. We cannot now enter into the argument on the subject.

Admitting that the evidence in the case was taken by an officer authorized by law to swear the witnesses, and to receive and certify the evidence, (which, however, we deny,) we are wholly unable to comprehend upon what possible ground the majority of the committee have come to the conclusion that Mr. Washburn, the contestant, was duly elected and is now entitled to the seat he claims in this House. Mr. Voorhees, the sitting member, was, by the proper canvassers, declared duly elected by a majority of five hundred and thirty-four votes. The returns upon which this result was declared were all made by the duly authorized and sworn officers of the law. And these solemn returns, and solemnly authenticated evidence, cannot be set aside or over thrown by mere clamor and suspicions unworthy to be called judicial evidence, sufficient to establish fraud, unless we are prepared to disregard all the precedents of the past, and establish one now which will weaken, if not utterly destroy, every guaranty by which a member of a minority party holds his seat in this House. Majorities should not in the day of their triumph and their pride break down those barriers and weaken those guaranties by which minorities are enabled under the Constitution to defend and protect themselves and their rights, lest the flood of error and wrong thus introduced shall sweep away in its resistless torrent every vestige of republican and representative government.

To overcome the large majority by which Mr. Voorhees was declared elected, the contestant charges that in four townships in their congressional district, to wit: Riley township, in Vigo county, Hamilton and Jefferson townships, in Sullivan county, and Cloverdale township, in Putnam county, and said district, great frauds were perpetrated, as follows: First, that large numbers of illegal and fraudulent voters in said townships cast their votes at said election for the sitting member, D. W. Voorhees.

Second, that large numbers of ballots lawfully cast by legal voters at said election, in said townships, for the said contestant, were illegally and fraudulently taken out of the ballot-boxes and destroyed, and were never counted or returned for Mr. Washburn, the contestant.

Third, that large numbers of ballots with the name of Mr. Voorhees thereon, that had never been voted, were illegally and fraudulently put into the ballot-boxes, and substituted for those for Mr. Washburn that had been destroyed; and that such fraudulently substituted votes were, by the judges and inspectors, counted and returned for Mr. Voorhees, and aided in making up the majority by which he was returned as elected.

Fourth, that the election in all these townships was so illegally and fraudulently conducted, and is so tainted with fraud that the election in said precincts were and are wholly void.

I give the substance and gist of the specifications and charges, and confine them to the townships above named for the reason that there is no attempt to prove any fraud or irregularity in any other township in the district.

Of the truth of the larger part of the charges above set forth there is not even a shadow of evidence; there is not a particle of proof, or an attempt to prove that a single person in the whole district who cast his vote for Mr. Voorhees was not a legal voter and entitled to vote in the township where his ballot was deposited. There is not a particle of proof, or a shadow of proof, that a single ballot for Mr. Voorhees that was not voted was by fraud or otherwise put into the ballot-box and counted for him.

There is no proof that ought to be considered for one moment as sufficient to overturn and destroy the solemnly declared returns of an election, that any one of the judges, inspectors, or officers of election in said townships, were guilty of fraud or malversation in the discharge of the duties of their offices.

And it is only by inference, without sufficient evidence, that it can be argued that ballots cast in said townships for the contestant, were in any manner taken from the ballot-boxes, before they were counted and the returns made.

There is a great deal of evidence taken for the purpose of proving that a considerable number of votes were cast in each of the above named townships for Mr. Washburn that were not counted or returned for him. This evidence is offered for a twofold purpose. First. As tending to prove fraud in the election, and thereby to render the election in said townships utterly null and void. And secondly, to increase the vote of the contestant over the vote returned for him. We will therefore consider briefly the evidence relied upon to prove that more votes were cast for the contestant than were counted and returned for him by the judges and inspectors of the election.

In Hamilton township, Sullivan county, Mr. Vorhees, received four hundred and ninety-eight votes, and Mr. Washburn received one hundred and forty-three votes, as returned by the inspector and judges of said township. Mr. Washburn has examined a great many witnesses to show that he received at that township more votes than were thus returned for him. And giving a very liberal construction to this evidence we find that there is testimony tending to prove that he received at the poll in said township one hundred and sixty votes, being seventeen votes more than were returned for him by the inspector and judges. But to make up this additional seventeen votes we have to count the votes of twenty men who swear that they voted for Mr. Washburn, but who themselves cannot write their names, but merely make their mark, to wit: Christopher K. Boone, John Gilkerson, Solomon Walls, Luke Lucas, William B. Patten, Thomas Johnson, Peter Moore, Champion Shelburn, Christian Canary, Thomas Phipps, Pleasant Boles, William Canary, Robert Canary, Alfred Frinkle, Jacob B. Miller, William R. Gardner, Isaac Hildebrand, Vineyard Stark, Absalom Gentry and John A. Watson; and also of one person (Hanson Keen) who was not produced or sworn, but whose vote was sworn to by another person. When it is remembered that the votes were given by ballot, and how easily any one may be deceived as to how those around him vote, and how easily the voter who cannot read or write may himself be deceived in regard to the character of his ballot, it must be conceded that this evidence is of a very weak and unsatisfactory character, and that we cannot feel at all certain that a single vote was cast at that poll for Mr. Washburn more than were actually counted and returned for him by the inspector and judges.

In Cloverdale township, Putnam county, there were cast for Mr. Voorhees (226) two hundred and twenty-six votes, and for Mr. Washburn (58) fifty-eight votes. The contestant has produced evidence tending to prove that at said poll he received 89, eighty-nine votes, being (31) thirty-one more than were returned for him by the inspector and judges. But to make up this number we have to count the votes of ten (10) persons, to wit: George W. Dicks, Francis Mullinix, Job Allee, William Leonard, Abraham H. Snodgrass, Andrew Finley, Elisha I. Baldwin, William Minet, William Day, and C. W. Dicks, who testify that they voted for Mr. Washburn, but who cannot themselves write their names; and of twelve (12) others, to wit.: Elza Thompson, David Thompson, Payton Albin, Harrison Young, John A. Cross, James H. McCoy, John G. Dyer, Hugh Thompson, William B. Ferguson, David W. Dunkin, Israel Jenkins, and John Dicks, junior, who were not produced or sworn, but whose votes were testified to by other persons; this being clearly secondary evidence, of a very weak and unsatisfactory character.

In Jefferson township, Sullivan county, Mr. Voorhees received two hundred and thirty-one (231) votes, and Mr. Washburn twenty-four (24) votes, as returned by the inspector and judges of election. Evidence is offered tending to show that Mr. Washburn, in fact, received at said poll thirty-two (32) votes, being eight (8) more than were returned for him. But to make up this number we have to count the votes of eight (8) persons, (to wit, Lewis R. Mathes, James H Beck. Lacy Wood, Pleasant Posey, Abraham Briant, Andrew Geariner, Jacob W. Beck, and James Jowett,) who testify that they voted for Mr. Washburn, but who cannot themselves write their names; and of three others, (to wit, Lewis Solomon, Philip Solomon, and Frederick Hinkle,) who were not produced or sworn, but whose votes were testified to by others.

In Riley township, Vigo county, Mr. Voorhees received one hundred and seventy-three (173) votes, and Mr. Washburn eighty-eight (88) votes, as returned by the inspector and judges. The contestant has offered evidence tending to that he in fact received one hundred and seven (107) votes at said poll, nineteen (19) votes more than were returned for him. But to make up this additional nineteen (19) votes we have to count the votes of sixteen (16) to wit, Levi Creach, Solomon Brown, William Fair, James H. Gilcrease, John Haney, John Taylor, Ezra M. Lowe, George Brown, Alexander Green, William Salamon, William Henry, John B. Creech, Hase Lynn, J. W. Smith, Isaac Lowe, and Abraham Latta, who swear that they voted for Mr. Washburn, but who cannot themselves write their names; and of twelve (12) others, to wit, Hugh May Hard, David Joslin, James Franklin, George Bobo, Robert Leak, Timothy Higgins, Alonzo Ash, John Bowers, David Ward, Henry Lee, James M. Pearce, and Amos Hickson, who were not sworn or examined, but whose votes were testified to by others.

It appears then from this analysis of the evidence, that in the four townships named, there were returned for Mr. Washburn three hundred and thirteen (313) votes, and that taking everything that has the semblance of legal evidence on the part of the contestant, it tends to prove that in those four townships he received three hundred and eighty-eight (388) votes, being seventy-five (75) more than what were returned for him. But that to make up this additional seventy-five (75) votes, we have to count the votes of fifty-four (54) men, who, while they swear that they voted for the contestant, show, by making their marks to their signatures, that they cannot write their names; and twenty-eight (28) others who are not produced or sworn, but whose votes are testified to by others.

It certainly cannot be necessary to remark further upon the very weak and unsatisfactory character of this evidence. How easy is it for an unlettered man to be mistaken or deceived in regard to the character of the ballot that he delivers in at the polls? How easy for any man to be mistaken in regard to the vote cast by another, although standing near him when his ballot is deposited? How many are there, as we know from observation, who will receive from a friend or acquaintance a ballot, and profess to vote it, when in fact, they substitute for it another and different ballot, more congenial to their own views or feelings? Both classes of evidence, by which it is attempted to prove this 82 votes, when analyzed amount to nothing on earth but hearsay evidence. An unlettered man voting by ballot has no means of knowing for whom he himself votes, except by relying upon the unsworn statement of other parties, who furnish him his ballot and explain to him its character. And a man standing by or near the polls has no means of knowing how another votes, except by relying upon the unsworn statement of the person voting. For although the witness may have furnished a ballot to the voter and followed him to the polls it is so easy to substitute one ballot for another before delivering it to the inspector or judge of election, that our knowledge of how another votes who has not been sworn is based at last upon our confidence in his integrity and truthfulness, in other words, in his unsworn statement. It amounts simply to hearsay evidence and nothing else, which, however we may rely and act upon it in the ordinary transactions of life, is not permitted to have any weight in any judicial tribunal on earth that has regard for the principles of the common law.

We have thus far not noticed the fact that Mr. Voorhees was not able to attend at the examination of any of the witnesses, and have examined the evidence, such as it is, on the hypothesis that all the witnesses examined were of the most umblemished character. And, indeed, the sitting member has taken no testimony, and none of the witnesses sworn are attacked or impeached. But it should not be forgotten that this is an attempt to set aside and destroy the sworn return of the regularly authorized officers of the law, and that in times of great party excitement it is unfortunately, in many cases, but too easy to find witnesses who are more anxious to achieve a party victory than to weigh and consider carefully and conscientiously the testimony which they give.

But admitting that these seventy-five (75) additional votes have been sufficiently proven to justify their allowance to Mr. Washburn, and adding that number to the vote returned for him from those townships, it but reduces Mr. Voorhees's majority that much, and still leaves him the duly elected member by a majority of four hundred and fifty-nine (459) votes.

Before leaving this branch of the subject it is proper to add that, of all the votes proven for Mr. Washburn, there is no evidence that the name of one of them was on the tally-lists, or poll-books, or that any one of them was a legal voter in the township or district in which it is claimed that he voted.

But it is claimed that there is fraudulent conduct proved against the inspectors, judges, and others, having control of the ballot-boxes in said townships, sufficient to taint and corrupt the entire proceedings at said polls, and to make the whole election in said townships utterly null and void. In considering these charges, and the evidence thereon, we should not fail to remember—

1st. That it is not claimed that either one of said townships was otherwise than democratic, or that Mr. Washburn had a majority of friends and supporters in any one of them.

2d. That it was admitted before the committee that Mr. Washburn received, and had returned for him in said district, a larger number of votes than were cast at the presidential election, one month later, for Mr. Lincoln, which fact certainly tends to prove that he could not have been defrauded out of many votes.

3d. That fraud, when charged, must be proved; and that it never can legally be presumed from mere suspicious circumstances, however strong they may be deemed, that a mere discrepancy between the number of votes returned and the tally lists, or the number that may afterwards be proved to have been cast, has never, in any judicial or legislative inquiry, been considered as evidence of fraud at all tending to affect the validity of the election; and that if it should be held to have that effect, no election could be sustained, and every one in the United States could be defeated and destroyed; for there is, probably, scarcely a precinct in the whole country where discrepancies of this character may not be found or proved to exist. The class of men who must be taken for judges and clerks of election, in all rural districts, and the hurry, bustle, and noise around the polls when the election is taking place, makes such discrepancies a matter of course, and their entire absence would be a more suspicious circumstance than their presence.

Keeping these considerations in view, then, what is the character of evidence upon which it is attempted to vitiate and wholly destroy the elections in these townships, declare them null and void, and thereby give a seat in this house to a gentleman, whom it is no exaggeration to say no sane man, after looking over the record, can say ever received a majority of the legal or, indeed, other votes of his district.

FRAUD IN THE ELECTION.

The whole of the evidence upon which fraud is charged, and upon which the contestant relies to taint the election in these townships, and thereby declare null and void, is here given. That which applies to Hamilton township

is as follows:

HAMILTON TOWNSHIP.

Daniel Langdon, a witness for contestant, being duly sworn, deposes as follows:

Question. State if you know what persons constituted the election board at Hamilton precinct township, Sullivan county, Indiana, at the general election in October, 1864.

Answer. William C. Griffin was the inspector, James A. Baird and Porter Burks were the judges. Benjamin F. Havens and myself were the clerks.

Question. State what you know in relation to any interference with the ballot-box at said election; give any circumstances you may have observed on that point.

Answer. I know nothing positively; all I know is from circumstances. All the circumstances that came under my observation are the following: When the board adjourned for supper there were about fifteen or twenty tickets counted out and strung on a string. The string tickets were placed in the ballot-box, on top of the unstrung tickets, the tally-papers poll-book were placed in the box, on top, and the box closed. I don't know whether the box was sealed up or not, nor could I state to whom the key was given. When we met after supper the ballot-box was placed on the table, and James A. Beard tried to unlock the box with a key he had, but could not unlock it. The inspector then took the key and tried to unlock it, but failed: he then got another key and unlocked the box. The poll-books and tally-papers were taken out, but the counted tickets could not be seen, but were finally found, covered up with uncounted tickets.

Question. Could those counted tickets which were strung have got where they were found unless the box had been opened in your absence?

Answer. I think not.

Question. What time did the board adjourn for supper; and how long were they at supper?

Answer. They adjourned about dusk, and were gone about an hour; the ballot-box was left in the library room, where the votes were received, at the court-house.

Question. Where did the inspector get the key with which he unlocked the box?

Answer. I don’t know; he had several keys at the time; I think he got it in his pocket.

Question. For whom did you vote for Congress?

Answer. For D. W. Voorhees.

Question. What were the politics of the rest of the board?

Answer. They were all democrats.

Question. Was there any political friend of Colonel Washburn on the board?

Answer. There was none.

Question. Was there any effort made by Mr. Washburn's political friends to put any of his political friends on the board; or to divide the board between democrats and republicans?

Answer. There was an effort made to that effect in the morning before the board was organized.

Question. Was that effort opposed; and if so, by whom?

Answer. It was opposed by several of the democratic party. Mr. Hansill appeared to take the lead.

Question. Is that the same Mr. Hansill who appears for Mr. Voorhees in this case?

Answer. Yes.

Question. Did you touch the ballot-box while the board were adjourned?

Answer. I did not.

Cross-examined:

Question. How were the judges elected?

Answer. By the bystanders, a majority of whom were democrats.

Question. Where many republicans present when the election of judges by the bystanders took place?

Answer. There were several present; a good many.

Question. Did the republicans nominate any person for judge; and whom did they nominate?

Answer. They proposed the names of J. F. Martin and James W. Hinkle, but there was no vote taken upon it.

Question. Is Mr. Martin not an officer under President Lincoln? If so, what office does he hold?

Answer. He is postmaster at the town of Sullivan, in Sullivan county, Indiana.

Question. Is Mr. Hinkle not considered as a very warm republican?

Answer. He is firm in his principles, but not an active partisan; rather conservative.

Question. Was, at the October election, 1864, Mr. Hinkle a candidate for office; and if so, what office?

Answer. He was a candidate for county commissioner at said election.

Question. What was the political character of the judges elected by the bystanders?

Answer. They were firm democrats, but not active partisans.

Question. Who appointed the clerks?

Answer. I do not know positively; but it is my impression that the inspector and judges appointed them.

Question. State whether Mr. Havens, one of the clerks, is an active partisan?

Answer. I cannot say positively; I think he is not.

Direct-examination resumed:

Question. Look at Exhibit XX, herewith presented to you, and state whether it is a correct copy of a paper signed by you and the rest of the board of election?

(Question and answer objected to.)

Answer. It is.

DANIEL LANGDON.

EXHIBIT XX.

A CARD.

We, the undersigned, judges and clerks of the election held at the court-house in Sullivan on the 11th day of October, 1864, in view of the frauds alleged to have been perpetrated, and injustice to ourselves, avail ourselves of this the first opportunity offered to make the following statement:

Of the frauds charged we know nothing. We saw no act of impropriety by any member of the board while in session; but that we are satisfied in our own minds that such charges are not without foundation, and we have such opinion upon the following circumstance, to which we are willing at any and all times to be qualified: At the adjournment of the board for supper, which was about dusk, we had counted out between fifteen and twenty tickets, which were strung on a string prepared for that purpose. The string of tickets was placed in the ballot-box on top of the uncounted tickets. The poll-books and tally-papers were then placed on top of the tickets, the box locked and set on a table in one corner of the room.

When the board met, after supper, the ballot-box was unlocked in our presence by the inspector, the tally-papers and poll-books taken out, but the string of counted tickets could not be seen. The inspector turned to the table in the corner of the room to search for it, and while thus engaged we found the string of tickets in the bottom of the ballot-box, completely covered by uncounted tickets. We are satisfied that the string of tickets could not have got to the bottom of the ballot-box without the same being opened in our absence and the tickets bundled.

Respectfully submitted,

PORTER BERKS,

JAMES A. BEARD,

Judges.

DANIEL LANGDON,

BENJAMIN HAVENS,

Clerks.

I hereby certify that I believe the above statement to be correct. When the box was opened after supper I took out the poll-books and tally-papers, but could not find the string of tickets. Supposing they had been left out, I turned to look for them; mean time they were found in the box. It is evident that they were moved while the board was adjourned for supper.

Respectfully,

W C. GRIFFITH, Inspector.

October 19, 1864.

James A. Beard, being sworn, deposes as follows:

Question. State whether you were one of the judges of the election held at Hamilton township, Sullivan county, Indiana, in October, 1864; and if so, state all the facts and circumstance you may have observed in relation to any interference with the ballot-box at said election.

Answer. I acted as one of the judges at said election. I saw nothing wrong until we returned after supper. Before adjourning for supper the polls had been closed, and we had counted about fifteen or seventeen tickets; when we adjourned the string with the counted tickets was placed in the ballot-box, on top of the uncounted tickets; when we met after supper, and the box was opened, the string with the counted tickets could not be seen; I looked in for it, turned over the tickets, and found the string with the counted tickets at or near the bottom of the ballot-box.

Question. Could the counted tickets on the string have got where you found them unless the box had been opened in your absence?

Answer. I do not think they could, unless the box had been shaken.

Question. Were inspector, judges, and clerks, all together during adjournment?

Answer. They separated; I went home to supper.

Question. Was the box locked when you adjourned?

Answer. I think it was; I did not lock it myself; I think Major Griffith locked it; he handed me a key; I kept the key, and handed it back to Major Griffith when the board met at the room where the election was held.

Question. Where was the box left when you adjourned?

Answer. In the voting room in the court-house.

Question. Did you, or any one of the board, to your knowledge, touch or open the box during adjournment?

Answer. I did not, and the others did not, to my knowledge.

Question. Did the key which you had (I mean the key which Major Griffith gave you) unlock the box when you came back?

Answer. I cannot say positively. Major Griffith gave me the key at the adjournments for dinner and supper, both, and at one of these occasions upon my return the key which I had would not unlock the box.

Question. Who did you vote for?

Answer. For D. W. Voorhees for representative in Congress.

JAMES A. BEARD.

William C. Griffith, being duly sworn, deposes as follows:

Question. State whether or not you were the inspector of the election held in Hamilton township, Sullivan county, Indiana, on the second Tuesday in October, 1864; and if so, state what you know, if anything, in relation to any interference with the ballot-box at said election; state any circumstances you may have observed.

Answer. Yes; I was inspector of the election referred to; saw nothing to create any suspicion that the ballot-box was tampered with, as the ballots and names of voters balanced. Some few days after the election the judges and clerks of said election called my attention to the fears entertained by them of fraud being practiced. Their grounds of alarm were, as stated by them, that Mr. Beard found the strung tickets under the unstrung tickets. My knowledge of the case is this; we adjourned for supper about or after sunset; when we returned the tally-papers and poll-books were taken out by myself, but could not find the strung tickets. I turned to the table, remarking to the judges that they had failed to place them in the box, but before I was through looking for them Mr. Beard found them under the unstrung tickets, as above stated. This circumstance satisfied me the box had been tampered with; but on reflection, the strung tickets might have been turned under the unstrung tickets while I was searching for a bunch of tickets, not thinking at the time that there were only fifteen or twenty tickets strung.

Question. Did you, or any one, to your knowledge, open the box during adjournment?

Answer. I did not, and don't know of any one else.

Question. Where was the box left during your adjournments?

Answer. It was left in the library-room, in the court-house.

Question. Did you give the key to James A. Beard when the board adjourned?

Answer. I did. Upon the reassembling of the board the key which I had given to Beard, and which he returned to me, would not unlock the box, and I thereupon took another key from my pocket, with which I unlocked it. I don't remember whether this happened after dinner or after supper. Before giving the key to Mr. Beard I had it in my pocket, with two or three keys of the same size.

WM. C. GRIFFITH.

Porter Burks, being duly sworn, deposes and says as follows:

Question. State whether you were one of the judges of an election held in Hamilton township, Sullivan county, Indiana, in October, 1864; and if so, state all the facts and circumstances you may have observed in relation to any interference with the ballot-box at said election.

Answer. I was one of the judges of said election. When we went to supper we had some fifteen or twenty tickets counted out which I had strung on the string, and I placed, when we left, these strung tickets on the uncounted tickets in the box. When we came back from supper and had the box opened, the strung tickets were not on top of the uncounted tickets; they were subsequently found further down in the box, and pulled out.

Question. Did you, or any of the board, handle the box after you had adjourned for supper, and before you returned?

Answer. I did not; and if others did, I do not know it.

PORTER BURKS.

Sewell Coulson, a witness produced on the part of the contestant, being duly sworn, deposes, and says:

Question. Do you know of any persons voting at Hamilton township, Sullivan county, Indiana, at the election in October, 1864, who are now absent?

Answer. John Kelley, now absent with the 43d regiment voted.

Question. Do you know for whom he voted for representative in Congress?

Answer. Yes; for Colonel Washburn; I saw his ticket, and saw him vote it.

Question. State whether or not you were present at the election of the judges of said election.

Answer. I was present.

Question. State how it was conducted, and what was said by Samuel R Hansill, the present attorney for D. W. Vorheees.

Answer. When the inspector of the election, Major Griffith, announced to the persons collected there that he was ready to receive nominations for judges, Mr. Hansill nominated James A. Beard; my brother, Uriah Wilson, nominated Joseph Martin, postmaster of the town of Sullivan; and Thomas McIntosh nominated Peter Burks. Beard and Burk were democrats; Martin is a republican. Before the vote was taken for the election of the judges considerable discussion was going on about having a mixed board, in which the inspector, Mr. Samuel R. Hansill, James W. Hinkle, and myself, participated. The inspector seemed to think that each party should be represented on the board. Mr. Hinkle and myself insisted on it as a matter of right; we asked it as a matter of favor to let us have one member of the board, to settle all disputes in regard to the fairness of the election. Mr. Hansill got up on a store-box (I think) and spoke in very violent language against Martin serving on the board. I then proposed to put Mr. Hinkle or some other of our friends on the board. Mr. Hansill replied that he would not trust Mr. Martin, Hinkle, or any other black abolitionist, on the board. At this time somebody to my left said that he withdrew the nomination of Porter Burks. Mr. Hansill urged that the vote on Beard be taken, and he was the first man elected. Mr. Hansill then insisted that the vote be taken on Porter Burks; his name was put to vote, and no vote was taken upon the nomination of Martin, or any other republican.

Cross-examined:

Question. Did not the inspector read the statue law, to the effect that the bystanders had the right to elect the judges.

Answer. Yes, he read it.

Question. Were not a majority of the bystanders democrats?

Answer. I cannot say that.

Direct examination resumed:

Question. State where the election of judges was held.

Answer. Outside the court-house, in the court-house yard.

Cross-examined again:

Question. Was not the election of judges held within a few feet of the window where the election was held and the votes taken in on said election day?

Answer. The crowd of people extended from the window where the votes were taken in, some ten or fifteen yards.

Question. How far did the inspector stand from that window?

Answer. About four or five feet.

SEWELL COULSON.

Now where is the evidence of fraud in all this[?] You may say that it is sufficient to excite some suspicion, but you cannot go beyond that. Upon whom, upon which one of the judge's inspectors or clerks of election have you fixed fraud? Can you say that the ballot box was opened or improperly tampered with at all? Is it not manifest that the ballot-box might have been shaken in some way, or by some one, without being opened at all, and the strung tickets thereby turned under the others? Can you say upon any satisfactory evidence that Mr. Washburn lost a single vote that was cast for him at this precinct?

CLOVERDALE.

The evidence relied upon to establish fraud in this township is as follows:

A. B. Baird, being heretofore sworn, deposes as follows:

Question. State what conversation you had or heard, if any, soon after the October election, 1864, between or with James A. Scott and others in regard to the election in Cloverdale township.

Answer. I heard Mr. Scott say, a few nights after the October election in 1864, that, after the poll was counted out at Greencastle, he and a friend came to Cloverdale; found the ballot-box at Mr. Akers's, near Cloverdale; that they arranged the box, as they had reports from all the townships in the county, by which they knew they were beaten unless they could save the election at Cloverdale; and that he afterwards returned to Greencastle and told his friends to double their bets. This conversation occurred at Ricketts's hotel in Greencastle.

Question. State, if you know, what the politics of Mr. Scott are.

Answer. He is a democrat or butternut and a supporter of D. W. Voorhees, and is a leader of the democrats in Putnam county. I don’t think that he knew, when he made the above remarks, that I was in the room. He was talking to other democrats, being several of them—perhaps ten or fifteen—in the room. I was the only Union man there. Austin Puett, Pat. Haney, and Sol. Akers were there, and are leading democrats—Puett being representative from Putnam county to the legislature, to which he claimed to be elected at the October election, 1864.

A. B. BAIRD.

Solomon Akers, being duly sworn, deposes as follows:

Question. State where you live.

Answer. About half a mile from Cloverdale.

Question. State whether or not any person other than your own family stayed all night with you on the night of the October election, 1864; and if so, who?

Answer. Arabiam Davis, the inspector of the election, stayed at my house that night.

Question. Did Davis have the ballot-box with him that night?

Answer. He had it with him.

Question. State whether or not any other person or persons were at your house that after bedtime; and if so, who were they?

Answer. James A. Scott was there after bedtime.

Question. What hour of the night did he come to your house?

Answer. I think it must have been after ten o'clock. I had gone to bed when he came, and was asleep.

Question. What are your politics, and for whom did you vote for Congress at the October election, 1864?

Answer. I am a democrat, and voted for D. W. Voorhees.

SOLOMON AKERS.

Reubin McGinnis, being heretofore sworn, deposes as follows:

Question. State who constituted the election board in Cloverdale township, Putnam county, Indiana, at the October election in 1864.

Answer. Arabiam Davis was inspector, James McCoy and myself were the judges, and William Broadstreet and William Hood were the clerks.

Question. At what time did the board adjourn on the day of said election, and at whose instance?

Answer. After the polls were closed and the box sealed up, Mr. Davis said we would adjourn till to-morrow morning. There were no votes counted when we adjourned. Mr. Davis took the ballot-box with him when we adjourned.

Question Was the box locked and sealed when you adjourned?

Answer. The box was locked and the hole in which the tickets were put was sealed; the keyhole was not sealed. McCoy, one of the judges, proposed to seal the keyhole, and Davis said it was not necessary.

Question. What time did the board meet next day?

Answer. I think it was near nine o'clock until they all came together.

Question. Did you see the ballot-box from the time you adjourned in the evening until you met next morning?

Answer. I did not see it. Mr. Davis took it, and brought it back next morning at nine o'clock.

Question. What are Mr. Davis's politics?

Answer. He is a democrat and a supporter of Mr. Voorhees, and a strong partisan.

Question. Where did Mr. Davis live at that time?

Answer. About three miles southwest of Cloverdale.

Question. Do you know where Davis stayed the night after the election?

Answer. I only know what he told me; he said he stayed at Sol. Akers's. Sol. Akers lives about three-quarters of a mile southeast of Cloverdale.

Question. Are you acquainted with James A. Scott; and if so, where did he live on the day of the October election, 1864?

Answer. I know him; he lived at that time at Greencastle, the county seat of Putnam county, ten miles from Cloverdale.

Question. State whether there was a ticket counted out at that election with the name of Joseph Sellers on it for assessor?

Answer. I examined every ticket; there was no such ticket counted out.

REUBEN MCGINNIS.

Now, where is the evidence of fraud here? No lawyer, I imagine, will insist that what Baird states about what one James A. Scott should have said at Greencastle is evidence. If we are going to disregard and set aside all the rules of evidence we can very easily prove anything on earth, no matter how improbable it may be. Mr. Baird states that he heard Mr. Scott say that he and a friend arranged the ballot-box; and it is proved that Mr. Davis, the inspector, staid the night after the election at the house of Sol. Akers, and had the ballot-box with him; that Scott was at the house of Akers that night; and that Scott and Davis were both democrats, or butternuts. And this is the character of evidence upon which you are called upon to turn out of this house a gentleman who holds his seat by a majority of five hundred and thirty-four votes, as shown by the official returns, and to give his place to his competitor!

JEFFERSON TOWNSHIP.

The evidence of fraud in Jefferson township is the following:

F. A. Harvey, a witness of lawful age, produced by contestant, being duly sworn according to law by me, deposes as follows in response to questions propounded by the contestant:

Question. State whether or not you voted at the general election held in the State of Indiana on the 11th day of October, 1864; and if so, at what precinct did you vote, and for whom did you vote, for representative in Congress for the seventh congressional district of the State of Indiana?

Answer. I voted at said election in Jefferson township, Sullivan county, Indiana, for Colonel Washburn for representative in Congress.

Question. Do you know who constituted the board of election in said township at said election?

Answer. I know Elias Newkirk was inspector; D. W. Alsom and Elijah Mayfield were the judges, and Samuel Enoch and Thomas Bedwell were the clerks.

Question. What was the political character of the board?

Answer. By general reputation they were democrats.

Question. Had Colonel Washburn any political friend on that board?

Answer. None, to mv knowledge.

F. A. HARVEY.

Wonderful indeed! The persons constituting the board of election had the general reputation of being democrats! Ergo! the election was a fraud, and Mr. Washburn ought to have the seat which Mr. Voorhees now unjustly with-holds from him. Well has it been said that—

"Trifles light as air

Are to the jealous confirmation strong

As proofs of Holy writ."

RILEY TOWNSHIP.

The evidence relied upon to establish fraud in Riley township is as follows:

C. A. Ray, living heretofore sworn, deposes and says:

Question. State, if you know, who constituted the election board for Riley township, county, Indiana, at the October election, 1864.

Answer. Wilson Foster and Henry Christy were the judges, L. A. Ray and Linus Moyer were clerks, and G. W. Hickson was inspector of election.

Question. State whether or not the board adjourned for dinner; and if so, at what time of day; and where did you go to dinner?

Answer. The board adjourned for dinner about 12 o'clock m., and all members of the board took their dinner at Dr. Hickson's, who was inspector of election.

Question. State where the ballot-box was during the time you eat dinner.

Answer. In the front bedroom at Dr. Hickson's.

Question. State how long you eat dinner.

Answer. As near as I can judge, one hour.

Question. State how the front bedroom is situated in Dr. Hickson's house.

Answer. The two bedrooms communicate by a door between them.

Question. State whether any member of the board was in the bedroom while you were eating dinner at Dr. Hickson's.

Answer. After we had eaten dinner, Dr. Hickson went into the bedroom where the ballot-box was, and shut the door after him. He remained in the bedroom, as near as I can tell, from ten to fifteen minutes. While he was in there, the other members of the board were in the sitting room examining some outline maps.

Question. State how the number of votes counted out of the ballot-box accorded with the poll-books?

Answer. The tally-papers did not show as large a number of votes as the poll-books by four or five, if I remember rightly. There were some loose votes picked up on the table at which the board sat, and these tickets were counted to supply the deficiency in the number of votes as shown by the poll-book. How these votes got on the table I cannot tell—whether came from the string of votes in the hands of one of the judges. They did not come out of the box. After the deficiency was discovered, no more votes were taken from the box, because there were no more in the box. I know not where those votes came from. After adding those, they were still one vote short.

Question. What is Dr. Hickson's politics? and who was he supporting for Congress?

Answer. He is known as a democrat and a strong partisan, and as a supporter of Voorhees for Congress.

Question. Do you know whether there were any Union men who voted at Riley township, Vigo county, Indiana, at the October election, 1864, whose depositions have not been to-day?

Answer. I do know of the following: James Franklin, Joseph Joslin, George Compton, J. Ferrill, John B. K ester, and William Jordan, and probably others whom I don't recollect.

C. A. RAY.

Mary Lowe, a witness produced for the contestant, being duly sworn, deposes as follows:

Question. State where did you live on the 11th and 12th of October, 1864, and at the the October State election.

Answer. I lived at that time at Dr. Hickson's, in Kiley township.

Question. State whether any person other than Hickson's family eat dinner at Hickson's on the day of said election; and if so, who?

Answer. Mr. Moyer, Mr. Christie, Mr. Ray, Mr. Foster, and the two Misses Lee did eat dinner there on that day.

Question. State what you observed in Dr. Hickson's bedroom a day or two after the election; state all you saw.

Answer. Next morning after said election, in Dr. Hickson's back bedroom, I found a lot of republican tickets under the carpet behind the door; I don't know how many tickets there were; one tack of the carpet was taken out and the tickets put under the carpet; I pushed the door back, and it would not go back entirely' on looking behind to see what was the matter, I found the tickets under the carpet.

MARY LOWE. + her mark

Attest: NATHANIEL LEE.

I repeat the question asked in regard to evidence of alleged irregularities and frauds in the other townships. Where is the evidence of fraud here, to justify throwing out the poll and declaring the election void, much less to give the seat to the contestant? Dr. Hickson was the sworn inspector of the election, having the right by law to have the custody and care of the ballot-box during the adjournments of the board. He invites the other members of the board to his house for dinner, places the ballot-box in his private bed-room. While they are all at his house he has occasion to visit his room and absents himself from his company for ten or fifteen minutes, for what purpose we are not informed. Whether to change his clothes, read letters he had received, write a letter, or whatever it might have been we do not know, and have not one particle of evidence on the subject. But was his going to the room where the ballot-box was even a suspicious circumstance? Unless men's visions are jaundiced they cannot so consider it. If Dr. Hickson left his company it was his duty to go to where the ballot-box was or to take it with him. He was its lawful and sworn custodian. If the board had separated for dinner, and the others not gone home with Dr. Hickson, some one of them must have taken charge of the ballot-box and kept it in his custody during the entire time of the adjournment. If Dr. Hickson had had no company with him to dinner, and had taken the ballot-box home with him, and kept it away from all other persons during the one or two hours of the adjournment, would that have been a suspicious circumstance? On the contrary, it would have been precisely what the law required him to do. And if he had contemplated or purposed fraud, would he have invited company to dinner at all? And yet, incredible as it in fact may seem, this is the evidence upon which it is asked of this House to exclude the return and declare the election in this township void.

But we have also the testimony of Mary Lowe, a servant girl, who cannot write her name, and who testifies that on the next morning after the election she found some "republican tickets" under the carpet behind the door in Dr. Hickson's room. How many tickets were there? We don't know. How did she know that they were republican tickets? Could she read them? We are not informed. Whose names were on them? Was Mr. Washburn's? Were they tickets prepared for that or for some former election? for that or some other State or district? Had they ever been in a ballot-box anywhere, or in the hands of a voter of the district, or of any elector anywhere? We are not informed. No witness undertakes or attempts to give us such information. If a clamor had not been raised could we conscientiously say that this evidence raises even a shadow of suspicion against any one? And upon such evidence we are asked by the mere force of numbers to vote Mr. Voorhees out and Mr. Washburn into Congress contrary, as we confidently assert, to the clearly and legally expressed will of the electors of the district.

After this discussion and presentation of the evidence, we do not deem it necessary to enter into the law bearing upon this case. The statute of the State of Indiana, under which this election was held, sets forth the general principle governing contested elections fully and accurately, and is in perfect accord with the decisions of this House upon the same question from the organization of the government to the present time. That statute provides as follows, to wit:

"No irregularity or malconduct of any member or officer of a board of judges or canvassers shall set aside the election of any person, unless such irregularity or misconduct was such as to cause the contestee to be declared elected when he had not received the highest number of legal votes; nor shall any election be set aside for illegal votes, unless the number thereof given to the contestee, if taken from him, would reduce the number of his legal votes below the number of legal votes given to some other person for the same office." (1 Gavin and Hord's Statutes of Indiana, p. 318, sec. 15)

As this section sets forth the law fully and accurately on the subject, and furnishes a consistent and intelligible rule for our guidance, I will not trouble the House with other references.

We can hardly deem it necessary to urge upon the consideration of the House the fact that Mr. Voorhees is the duly and regularly returned representative of his district; that he is returned as elected by a large majority; that such return is under all the solemnity and with all the sanctions of the law; and that, to meet this, the burden of proof is on Mr. Washburn, to meet and overcome, with competent and perfectly satisfactory evidence, all those presumptions which the law for the safety, security, and stability of society has thrown around the action and official conduct of its sworn officers. That Mr. Washburn has not furnished such evidence we think we have clearly shown. And now, in conclusion, we will add with all due respect that, while the history of legislative bodies furnishes many examples of partiality, wrong, and inconsiderateness in determining contested election cases, discreditable in the highest degree to the majority in those bodies, we believe, if Mr. Voorhees is deprived of his seat and the constant given a place in this House which the electors of the district never conferred upon him, that the case of Washburn vs. Voorhees will deserve to stand out in history solitary and alone, and occupy a place to itself, and above all others, on the grand roll of partisan outrage and injustice. We therefore offer, as a substitute for the resolutions offered by the majority of the committee, the following:

Resolved, That the Hon. Daniel W. Voorhees was duly elected a representative in the thirty-ninth Congress, and is entitled to hold and retain his seat in this House.

SAMUEL S. MARSHALL.

W. RADFORD.

• Minority Report on the Contested Election of Washburn vs. Voorhees (introduced on 1866-02-19 00:00:00 - CREATE - e680374) [This document] [view current proposal at this moment]
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