The Committee of Elections, to whom was referred the memorial of William E. Dodge, contesting the right of Hon. James Brooks to a seat in this House as a representative from the eighth district in the State of New York, with the accompanying papers, have considered the same and submit the following report:

The eighth district of New York is composed of the Eighteenth, Twentieth, and Twenty-first wards of the city of New York, and the election here contested was held on the eighth day of November, 1864. The official canvass showed

the following result:

For Mr. Brooks ...... 8,583

For Mr. Dodge ...... 8,435

For Mr. Thomas J. Bar ...... 4,544

Giving a plurality (which elects) to Mr. Brooks of 148 votes.

The notice of contest and proofs, submitted by Mr. Dodge, are contained in Miscellaneous Documents, No. 7, of the present session. The answer and proofs of the sitting member are contained in same document, part 2d. The pleadings and proofs are very voluminous—those of Mr. Dodge filling 541 pages, and those of Mr. Brooks 330 pages, of printed matter. The allegations of contest, pp. 1-4, (Dodge,) are long, and some of them very vague and uncertain, conforming in no sense to the provisions of the statute requiring a contestant to "specify particularly the grounds upon which he relies in the contest." The answer of the sitting member, pp. 1-5, (Brooks,) is quite as vague and uncertain, and abounds in irrelevant matter. If each were stripped of everything but that which could properly be called a "particular specification of the grounds upon which the party relies in the contest," very little would be left in either. The contestant, however, confined his proofs to the allegations affecting four precincts only, viz: 13th district of the 18th ward, 15th district of the 18th ward, 3d district of the 21st ward, and the 7th district of the 21st ward. And the sitting member confined his own proof to a reply to that offered by the contestant in relation to these precincts. It therefore became unnecessary for the committee to examine further the other allegations on the one side and the other.

In the opinion of the committee, there is contained in the several allegations of the contestant respecting these four precincts a distinct allegation of fraud in the election, and error in the return, sufficiently specific to require an answer from the sitting member, and to form the basis of a fair trial of the facts involved in the issues thus made up. Upon these issues the committee have heard the parties attentively and at great length during more than three weeks of daily sittings, and now, after careful deliberation upon all that has been offered of proof and argument, they submit to the House the following conclusions in respect to each of these four precincts, and upon the whole matter referred to them.

The law of New York under which this election was held required a previous register of all the votes in each precinct, and, with one exception, based on particular and specific proof, no one could lawfully vote whose name was not found when he came to the polls upon the register, together with his street and number, if he had any. (Statutes of 1859.) To effect this register the statute required the appointment annually, in each election district, by the board of supervisors, of "three inspectors, to be known as the board of registry for the election districts in which they are appointed; such inspectors to hold their offices for one year, and to be residents and voters in the district in which they are so appointed." These inspectors are required to meet annually, "at the place designated for holding the poll of said election," on Tuesday, three weeks preceding the general election, and organize themselves as a board for the purpose of registering the names of the legal voters of such district; choose one of their number as chairman; swear each other into office; appoint a clerk, if necessary, who shall take the oath required by law of clerks of the polls or of elections; and shall have power to continue in session, for the purposes of this meeting, viz: the making of said list, for two days, if at the annual election next prior to said meeting the number of voters in the district of which they are inspectors exceed four hundred. This board is at this meeting to make a list of all persons qualified and entitled to vote at the ensuing election in the election district of which they are inspectors, which, when completed, shall constitute and be known as the registry of electors in said district. The list is to contain the names, alphabetically arranged in one column; "the residence by number of the dwelling, if there be any number; and the name of the street or other location of the dwelling-place of each person." It is made out, in the first place, by putting upon it the names of all persons residing in their election districts whose names appear on the poll-list kept in said district at the last preceding general election, taken from the copy of that list required by law to be deposited after such election with the county clerk. In case of the formation of a new election district since the last election, the list is to be made up by taking from the said poll-list of the old district, of which the new one formed a part the names of those on the same, entitled to vote in the new district. The list is to be completed, as far as practicable, on the day of meeting; four copies are to be made and certified to be, as far as known to them, a true list of the voters in said district. Within two days the original from which the four copies are taken, together with the old list taken from the county clerk's office, shall be placed by said inspectors in said office. One of the certified copies shall be, immediately after its completion, posted in some conspicuous place in the room in which said meeting shall be held; that is, in the room designated for holding the election, accessible to any elector who may desire to examine or copy the same. The other three copies are to be kept for future use by the three inspectors. This closes the first duty of the board of registers. A further duty is also required of them by law, and that is to meet again on the Tuesday week preceding the day of general election in their respective election districts, "at the place designated for holding the polls of election, for the purpose of revising, correcting and completing said list," at 8 o'clock in the morning, and remain in session till 9 o'clock in the evening of that day and the day following, in open session, where every legal voter in said district shall be entitled to be heard by said inspectors in relation to corrections or additions to said register. One of said copies is to be used by the registers in making the corrections and additions.

The inspectors are thus constituted a judicial tribunal to pass upon the qualification of voters, and are required to then and there erase from the list, prepared as aforesaid, (a copy of which is required by law to have been posted up in some conspicuous place in the room designated for holding the election since their last meeting, and where their court is then required to be held,) the name of any person who shall be proved by the oaths of two legal voters of said district to be a non-resident of said district, or otherwise not entitled to vote at the next ensuing election. Any person can procure his name to be entered upon the register, if not originally there, by appearing before said board at this meeting, giving his residence, street, and number, and subject to the pains and penalties of perjury for false answers to any inquiries touching his qualifications as a voter, and subject to challenge by any inspector or other voter, and taking the oath that would entitle him to vote at an election. This completes the corrected register which is to be used at the polls on election day. Four copies are to be made within three days after the close of this meeting, which must end in two days—one to be filed in the county clerk's office, and one to be kept for use by each of the inspectors at the election, and the name of each voter is to be checked as he votes upon one of these lists by one of the inspectors, or one of the clerks designated for that purpose. No person can vote at the election if his name is not upon the register thus prepared, unless he shall furnish to the board of inspectors his affidavit giving his reasons for not appearing on the day for correcting the alphabetical list, and also prove by the oath of a householder of the district that he knows such person to be an inhabitant of the district, giving his residence within the district. Any person whose name is on the register may be challenged, and an examination into his qualifications shall then and there be had, such examination being conducted in a manner prescribed by law, but which need not here be set out.

The house cannot fail to observe that the chief safeguard to an honest vote is the fair and honest preparation of this registry in conformity with the provisions of law. The responsibility for the purity of the election is thus made largely to rest upon the board of registry. They are judges in the strictest sense, and there is provided no appeal from their decision. To the end that there shall be other security than their personal integrity, that every safeguard against mistake honestly fallen into may be thrown around them, it is wisely provided, among other things, that they shall be "residents and voters in the district in which they are so appointed." They thus bring to the discharge of their duty a greater personal knowledge of the district, and the voters residing in it, than they otherwise could. Fraud could be much more readily detected and prevented by such men than by strangers. It is further provided that their meetings shall be public, and in a public place known to all voters in the district, viz: the place designated for holding the election, upon days publicly fixed in the statute, so that every voter in the district shall know beforehand that on given days, and at a given place fixed by statute, this tribunal will hold sessions for purposes as specifically defined in the same statute, and those purposes none other than to pass upon his right to vote. The law also requires that the duties of this board at these meetings shall be discharged by two at least of their number; that whoever acts as their clerk shall be appointed by them, and shall take a prescribed oath to secure his personal fidelity. With these preliminary remarks, the committee call attention to the subjoined facts:

FIFTEENTH DISTRICT OF THE EIGHTEENTH WARD.

The direct allegations of the contestant touching this district are as follows:

"That the fifteenth district was not legally created and established; that it was not known to bona fide residents of the district; that the inspectors of election themselves ascertained the same only by persistent inquiry on the morning of election day; that the register was fraudulently and irregularly filled with the names of your partisans, most of whom do not reside in the district; that the majority of the names therein were copied from lists handed in by a bar-keeper on the premises, an ardent democrat; that the clerk who acted for the board of registry was neither sworn nor appointed; that the district, only a portion of the original twelfth district from which it was separated, gave more votes than the whole of the twelfth district at the election last year; that the population of the district had not during the twelvemonth increased materially; that of these votes then cast for you one-third and upwards were given by parties not qualified to vote."

And the general allegation is in these words:

"That other irregularities, defects, and illegalities were permitted or occurred in conducting said election, whereby my rights as a candidate were prejudiced."

The return from this district was as follows:

For Mr. Brooks ...... 221

For Mr. Barr ...... 168

For Mr. Dodge ...... 57

This district had been a part of the twelfth district in this ward till the July previous to this election, when it was by city ordinance set off into a new district by itself, and numbered fifteen; it borders upon the East river, and there are many vacant lots and tenement houses and factories in it. It is commonly known as "Mackerelville," and had a bad reputation in connexion with the July riots. The place for holding the polls was first designated November third, eighteen hundred and sixty-four, and was first published November seventh, the day before the election; it was designated at "James Thompson's, No. 252 avenue B."

The places for holding the polls in all the other precincts in the city were published in the public papers, by order of the city authorities, from October twenty-fourth, until the day of the election. In each of which publications was inserted, "fifteenth district, Eighteenth ward not designated," except on the last day of publication, the day previous to the election, when, for the first time, notice was given of the place where the polls would be open in this district.

The Board of Registers consisted of W. H. Hall, of one hundred and sixty-s [sic] East Twenty-sixth street; T. G. Cowen, of one hundred and eighty-one East Seventeenth street, and J. Dougherty, of one hundred and sixty-seven East Twenty-fifth street; neither of them, as the law requires, voters, or even residents in the district. They met and organized on Tuesday, the eighteenth of October, appointing one Daniel Brady their clerk, who took the required oath of office, but who, being desirous of furnishing employment for a brother of his by the name of Andrew Brady, substituted his brother in his place, who, without appointment or qualification, performed the labor and received the compensation of clerk. The law requires the board to meet "at the place designated for holding the poll of said election," but no place for holding this election had as yet been designated, and no notice had been given to the electors of the district of the place where the Board of Registry would meet. They selected their own place of meeting, but gave no notice to the electors of where they might be heard. They met at the liquor store of James Thompson, the place subsequently designated, on the third of November, after their meetings had been by law closed, as the place for holding the election. At their meeting on the first day, no further business was done except the organization of the board. Dougherty then left, and was not present at any further meetings of the board. Hall came the next day, and remained till ten o'clock, and then left till four when he returned, spending several hours in the evening. He did the same on the third day, though the law allowed but two days for this meeting. Cowen, the remaining register, was some times present when Hall was there, and sometimes not; he also left on several occasions in Hall's absence, thus leaving the entire duty of the board to be discharged by the self constituted clerk, Andrew Brady. The names were entered upon the registry; some taken from the poll-book of the old twelfth district; others, to the number of two hundred or more, were taken from time to time by James Thompson, the keeper of the liquor store, and by him entered upon an old account book as persons called at his store. This list of names upon the account book was furnished by him to the registers, and the names transcribed by Brady upon the registry; others were entered, some by Hall when alone, some by Cowen when alone, and some by Brady, in the absence of both, and some by Thompson, the keeper of the shop.

Persons came into the liquor shop, and, in the absence of the board, entered their own and such other names as they pleased upon the registry. One of the registers accused this Brady of entering names purposely with wrong residences, and otherwise erroneously. In this manner was made up what was called and used as the registry of voters at this precinct. From the evidence it appeared that scarcely a quarter of those whose names were upon this register appeared personally before the board, and very few of the names entered upon the registry were entered in the presence or by order of more than one of the so-called registers.

The law requires a certified copy of the registry to be posted up in some conspicuous place in the room designated for holding the election. No place had been designated for holding this election; but such copy of this register was posted up in this liquor shop, but not in the place where the election was subsequently held.

Most of the business transacted by this board at its first meeting was transacted on the twentieth of October, the day after the first meeting of the board was by law closed. The Board of Registry is required to meet again, at the place designated for holding the election, on the Tuesday week before the day of the election. The place for holding the election not having as yet been designated, two of this board met at James Thompson's liquor store, as before, for the purpose of correcting the register, prepared as before stated, but without any public notice of the place where they contemplated meeting. Two days after this meeting, James Thompson's liquor store was designated by the city authorities as the place for holding this election, but no notice of this designation was given until the seventh, the day before the election took place.

The election was actually held, not at the place designated, but in a stable on the rear of the lot, "somewhere near his property." The place of voting was found with difficulty by many voters, and even the inspectors of election themselves were delayed by this difficulty in reaching the polls. The registry thus prepared became the guide of the inspectors of election, and none other was used, and parties answering to the names found upon it were allowed to cast their votes without further question or challenge. The result was a poll for member of Congress of four hundred and forty-six votes, though the largest vote cast in the whole twelfth district, including this district, the year before, was only four hundred and ninety-six, and the remaining portion of district number twelve cast also at this election for member of Congress three hundred and sixty-five votes. Thus it will be seen that the old twelfth, when divided, and by the help of this new registry, was enabled to cast at this election eight hundred and eleven votes, against four hundred and ninety-six, the largest vote the year before; and yet not a single dwelling-house had been erected in this district during the year, but, on the contrary, one tenement house had been pulled down. There had been apparently no accession of new residents in the district; no appearance of new families; no strange faces. No witness was able to account for this large accession of votes, and one of the inspectors of election, called by the sitting member, testified (page 123) that at the close of the polls, at sunset, between two and three hundred more were shut out from voting for want of time. If these latter were legal voters, as this inspector seemed to think, the large number of legal voters of the district that failed to vote must materially shake confidence in the honesty of the great vote actually cast.

The registry law requires the residence, street, and number, if he has any, to be placed upon the registry, and upon the poll-list when he votes, against each man's name. It is, therefore, only a question of time in ascertaining the residence of every voter in the district.

The contestant, for the purpose of tracing each voter who cast his vote at this precinct, and finding his residence, if he had any, as designated upon the registry and poll-list, employed a responsible person, by the name of Dean, canvasser for the City Directory, to visit each place designated as the residence of the voter. The deposition of this Dean was presented to the committee by the contestant, and objected to by the sitting member; the ground of the objection was, that when the deposition was taken, among the others constituting the proofs of contestant, the ten days' notice required by law for the taking of this deposition had not been given. And it appears that in giving the notice the name of this witness was by clerical mistake left out of the list served upon the sitting member, and the mistake was not discovered until the day the depositions were taken, when it was too late to renew the notice. It also appears that the deposition of said Dean, offered in evidence, was taken in presence of the sitting member and his counsel, and the deponent was tendered to them for cross-examination, but they declined to cross-examine him for the reasons already stated. The committee were of the opinion that the sitting member was entitled, if he insisted upon it, to the ten days' notice, and that therefore the deposition could not be received.

The contestant then sought to prove the same thing by another witness who had obtained his knowledge of the facts from Dean himself. This was objected to by the sitting member as hearsay testimony, and the objection was sustained by the committee.

The committee therefore were without the benefit of the results of the investigations so made by Dean, however satisfactory they might be in testing the accuracy of the registry and poll-list, and ultimately the honesty of the vote. The sitting member, however, in an effort to sustain this register and identify the voters named upon it, introduced the deposition of one Brennan, (p. 309,) long a resident of the district, an official in the Catholic church near this voting place, and believed to have special knowledge of the residents. His testimony corroborates the other testimony as to the fraudulent character and inaccuracy of this register. Of a list shown him, taken from it, twenty-six, at least, with all his intimate knowledge of the district, he is unable to trace; and many more rely for identification solely on his opinion that they are names mistaken for others in which the imagined similarity is so farfetched as to become ridiculous. The sitting member further introduced the testimony of a German resident of the district by the name of Jung, most familiar with the German names on the register, who had proceeded in his testimony as far as twenty names on the list shown him, recognizing only four of the twenty as voters, when his further examination in respect to it was suspended and not resumed, The committee regard this testimony of these two witnesses, offered by the sitting member himself, as in no degree weakening, but to some extent sustaining, the charges of the contestant against this poll.

The question raised by the whole testimony submitted in reference to this precinct is, whether there was any legal election held at all in this district, or, otherwise stated, whether the return of an election so conducted can, with any propriety, be said to contain a true account of legal votes cast at this precinct.

The committee are of the opinion that there was no registry at this district; that neither of the persons appointed as registers was competent to hold the office; that the man acting as clerk acted without authority; that the mode of making up the registry itself was a fraud upon the registry law, and in no manner a compliance with its provisions; that the use of such registry at the polls as a guide to the inspectors of election contributed directly to the polling of fraudulent votes, and that the large and unaccounted-for increase of votes at this poll is directly attributed to these departures from, and violations of, plain provisions of law, and that to accept the result of such poll so taken and so counted as the true account of legal votes only, is to sanction most inexcusable violations of important provisions of law, essential to the purity of the ballot-box. The committee are therefore of the opinion that this return falls within the principle found in cases heretofore adjudicated and which was laid down in the case of Washburn v. Voorhees, lately sanctioned by this House, namely: "Where an election return is so tainted with fraud that the truth cannot be deduced therefrom, the same must be set aside."

The committee are, however, of the opinion that it was competent for either contestant or sitting member to prove the casting of legal votes at this poll, even without a register; but, in such case, the voter must make special proof of his qualification to vote in a manner particularly pointed out in the statute; and that it would have been the duty of the committee to have counted all votes so proven, but that no presumption of the legality of any vote would arise from any of the proceedings or returns founded upon so illegal and fraudulent transactions as have been here shown to exist. No proof of any such votes was offered by either contestant or sitting member; nor was it claimed by either that this provision of law was complied with; but, on the other hand, it was totally disregarded. The statute of New York is express, that no vote shall be received except after a compliance with these provisions. For the committee to count votes thus cast would be for them to set up a poll in defiance of the statute provisions of the State, as well as in disregard of well-established precedents in this House. On the other hand, in conformity with those statutes and precedents, they have set aside this return altogether as fraudulent and false, as well as in conflict with express provisions of law.

SEVENTH DISTRICT OF THE TWENTY-FIRST WARD.

In this district the contestant charges that "sundry persons voted for the fitting member who were not legal voters or residents of the district—to wit, one hundred and upwards."

The official result in this district was, for Brooks, 160; Barr, 158; Dodge, 71—in all 388. There were given for presidential electors 400 votes. The largest vote given in 1863, the year before, was 202; in 1862, 234; an increase of one hundred per cent. over the vote of the previous year. This is an increase which in a small district attracts attention, and would seem to require explanation. The district is peculiar in its character, consisting principally of a stony elevation on the East river, called Dutch Hill, covered with shanties of a temporary character, not laid out into streets as occupied, nor numbered. While it does not cover any great extent of territory, its peculiarity in this respect furnishes great facilities for the commission of the frauds alleged, and, at the same time, opposes great obstacles to their detection. The people occupying these shanties, which were shown to be of the cheapest and frailest character, built on other people's land, and selling, as personal property, for $10 or $15 each, are not of the permanent population of the city, but are constantly coming and going, ever shifting and changing, crowding and huddling, if not hiding away from observation. The registry of voters, if honestly prepared in conformity to the requirements of law already alluded to, would with difficulty furnish direct evidence of the residence of the voter, and therefore temptation to fraud, which impunity of detection always begets, becomes strong. Into such a district, however, no great number of new families could come, bringing bona fide voters, without increase of habitations. Yet it was testified by a resident of the ward for the last fourteen or fifteen years, and superintendent of some seven election districts on the day of election, that there was not only no increase in the number of these shanties, but that "a great many of them had been torn away." Where, then, could this increase of voters have resided? An old resident of the district, by the name of Geoghegan, the keeper of two liquor shops in it at the time, and formerly a member of the Board of Registry in it, at whose liquor shop the election was held, testified to the manner in which this large vote was polled.

The testimony of this witness is so full and striking that the committee call especial attention of the House to it.—Pp. 442-479, Mis. Doc. No. 7. It is too long for insertion in this report, and a perusal of it can only convey a clear understanding of the method resorted to for the purpose of swelling the vote in this district. He, and a comrade by the name of Tracy, had managed the political affairs of the entire district for many years, and, in the interest of political friends, exercised almost unlimited control over the registry, the ballot-box, and the canvass. Disagreeing with some of his political associates after this election, touching the adjustment of some matters pertaining to it, Geoghegan disclosed to the contestant the means by which this large vote was polled, as detailed in the deposition referred to. The testimony discloses that the registry was taken bodily from that of the previous year, and had been from year to year; keeping on it the names of all who deceased or removed, and adding, from time to time, not only the names of all new-comers, but those of reliable friends, without regard to their residence. On election day men come from all parts, not only of the ward and city, but from the country, and in some instances from other States, and were brought up to the polls by men who understood themselves and their business, and, answering to the names thus entered upon the registry, voted as requested by those directing the affair. Voting by substitute was the appropriate name given to this proceeding. As soon as they voted they disappeared, and returned to their residences. As no one but those under whose auspices these men voted knew of their whereabouts, or even their names, they were comparatively safe from detection.

Of the many schemes devised for defrauding the ballot-box which have come under the cognizance of the committee this is one of the most dangerous. It can be carried to almost any extent, and seems to have hardly any other limit but the capacity and disposition of those who adopt it. Geoghegan himself testifies to having procured thirty votes for the sitting member in this way, and testified to other names on the register and poll-list of men either dead, removed from, or had never lived in the district at all, but on whose names "substitutes" had voted. As to many of these names he was able to remember who personated and voted each, though he was very careful to give no clue to the present whereabouts of any, if he knew. In addition to the thirty whom he led up to vote for the sitting member, Geoghegan also pointed out thirty-five others who were simply names upon the list personated by others, having no right to vote at all, thus making, within the knowledge of this witness alone, a fraudulent vote of at least sixty-five. In relation to several others there was less distinctness and some doubt about the testimony; but from the whole testimony, there appears little doubt, if this witness is to be believed, that sixty-five fraudulent votes are thus shown to have been cast at this poll. But the testimony of this witness was attacked by the sitting member because, by his own showing, he participated in the frauds he exposes, and is thus a particeps criminis, and not entitled to the full credit of an unimpeached witness. This is a sound rule of law, from which the committee have no inclination to depart.

The contestant also offered the testimony of one Russell Myers, which will be found in Mis. Doc. No. 7, at page 365, and to which the committee invite the attention of the House. This witness was a deputy United States marshal, and had been an officer serving with credit in the war, and had occupied for many years positions of responsibility. He had taken the register and poll-list of this district, and spent six weeks in searching for the voters enrolled in the manner already stated. The result of his researches is contained in the deposition before the committee, to which the attention of the House has already been called. After what appeared to the committee to be a very faithful and diligent research, commenced within six weeks of the election, he was unable to find any person to answer to any one of one hundred and nine of the names so enrolled. In this testimony he agrees with Geoghegan as to twenty-three of these names, and to this extent corroborates him. Evidence was introduced by the sitting member to meet this testimony of Myers; and in some instances the witness produced by the sitting member for that purpose was able to find a voter residing in the district and claimed by the sitting member to answer to the same name on the voting list which Myers was unable to find. Some of these were found at a different place from that indicated as their residence on the poll-list, but most of them he claimed to have identified as bearing names more or less similar in sound or orthography with those enrolled. Giving the sitting member the benefit of all thus claimed to be identified, however unsatisfactory the testimony as to some of them may be, and also deducting from the list testified to by Myers the same names included in the list of Geoghegan, in which he corroborates that witness, and which are counted in the sixty-five illegal votes testified to by him, there are still left fifty-one names on the list of Myers about which there can be no question that neither he nor any witness produced by the sitting member could find their residence, or that they had ever lived in the district.

Much of the evidence relied on by the sitting member to correct the list presented by Myers comes from the testimony of Tracy, a witness he himself called, and the associate of Geoghegan in the management of the district, as already stated, and a participant in the fraudulent voting by substitutes, as testified by Geoghegan, if Geoghegan testified truly. He knew whether the testimony of Geoghegan was true or false. His testimony is found in Mis. Doc. No. 7, Part 2, p. 234. He testified that he had resided in the ward twenty-five years; knew all about the district, and was present and heard the testimony of Geoghegan, yet he is not even asked to deny it, and is silent upon all the essential matters contained in Geoghegan's testimony, differing with him as to the residence and qualification of a single voter, or two at most. It is difficult to account for his silence if the testimony of Geoghegan, in respect to substitute voting, is false; but if that testimony was true, the silence is explained.

The committee are, therefore, of opinion that the testimony of Geoghegan stands corroborated by both Myers and Tracy; and that, from the testimony of the three, all reasonable doubt is removed, and their finding is that, at this poll, at least one hundred and sixteen illegal votes were polled. This number is left after striking from the list every name about which there can be any reasonable doubt. A careful reading of all the evidence would leave much room for difference of opinion as to many more. But the committee base their conclusions solely upon those about which they cannot themselves entertain any reasonable doubt. It will be observed that the whole poll for member of Congress in this district was only three hundred and eighty-nine, and of this number the committee are of opinion that one hundred and sixteen, at least, are fraudulent. There are no means of determining for whom these fraudulent votes are cast, beyond the thirty which is the number one of the witnesses testified that he was certain he succeeded himself in getting to vote for the sitting member, and beyond the farther fact that one, at least, of the parties most actively engaged in the affair, at whose shop the election was held, and who had the greatest facility for carrying it out, testified that he was laboring in the interest of the sitting member; still, eighty-six of these fraudulent voters cannot by any safe evidence be charged to the count for either of the three candidates. They are, however, in the count, as well as thirty traced to the sitting member, and must have been counted for one of the three. What is the duty of the committee and the House with such a return? It must stand as it is, or be set aside altogether, for the means are not at hand by which the return can be purged of the fraud, Thirty might be taken from the count for the sitting member, but, eighty-six as fraudulent would still be left, and the return thus corrected would contain in it one vote in every four a fraudulent one.

The committee see no alternative but to accept the return and thus sanction the fraud, or set it aside altogether. They cannot doubt that the latter course comes within the precedents of former Congresses and of this committee and of the present House, and they therefore reject the return altogether.

THIRTEENTH DISTRICT OF THE EIGHTEENTH WARD.

The allegations of the contestant, in respect to this district, are as follows:

"That in the thirteenth district of the Eighteenth ward the voting was of such a grossly fraudulent character as to involve all concerned in it, either in participation or passive permission, and to render it impossible to sift and purge the poll; that one of the inspectors, already a partisan of yours, was bribed to break every law intended to preserve the purity of the ballot-box to accomplish your election; that this said inspector exchanged places with another partisan of yours who, unsworn, acted as inspector; that another partisan of yours, unsworn and unappointed, acted as poll-clerk; that one of the inspectors snatched republican ballots from the hands of his associates, and changed them to democratic, amid the applause of disorderly sympathizers in the polling-room; that he refused to receive divers votes intended for me, and all soldier votes, menacing with oaths and imprecations those who offered them, so that his threats and those of his sympathizers prevented, after a certain hour of the day, any citizen from offering soldiers' votes; that during the day persistent attempts were made to bribe to infidelity to his trust one of the republican inspectors; that the same inspector was, on the evening at the close of election-day, for his fidelity assaulted, struck down, and grievously injured; that in canvassing the votes the greatest frauds were perpetrated, partisans of yours unsworn acted as canvassers, double votes were counted as two each for you, incorrect ballots were counted as correct, and when neither poll-list, tally, nor ballots agreed, two or more of your partisans rushed within the enclosing, and with pen and pencil labored successfully to conceal and correct the same after the republican canvassers had, under their threats, withdrawn; that in this same district sundry persons were permitted to vote once for you, and others were permitted to vote twice, who were not qualified voters, to wit, two hundred and upwards."

This was a river district, like the 15th of the same ward, already considered, containing but six blocks of houses, and casting for Brooks, 313; Barr, 138; Dodge, 36—in all, 487. The largest vote the year previous was 347, showing an increrse [sic] of nearly 50 per cent. The vote for presidential electors was still larger, being 512. The contestant offered in support of his allegations, in respect to this district, the testimony of E. H. Jenny and of John R. Hargin, at pp. 162 and 186 of document No. 7, both of them inspectors of the election, and one of them, Hargin, a canvasser after the polls were closed. A man by the name of Connolly was the other inspector of the election, and was also a canvasser. Jenny testified that Connolly, one of his associate inspectors, by threatening him and using violent language towards him, compelled him to permit ballots to be taken frequently with such rapidity that the safeguards of checking the poll-list and examination of voters could not be availed of; threatening even to eject him from his position if he interposed any delay. The witness replied that "he might do as he pleased; that it was a good place to die in defence of the sacredness of the ballot-box." The crowd about the polls encouraged and applauded Connolly; that soldiers' votes were in some instances excluded by means of the interference of Connolly and the acquiescence of the other inspectors; that one Jim Irving appeared and called out Mr. Hargin, one of the inspectors.

In the absence of Hargin, an attempt was made to put the bar-keeper of the liquor shop where the election was held, in his place as inspector, without any appointment, and that it was only prevented by the witness threatening to send for General Butler; that Connolly snatched in one instance a vote for presidential electors from the hand of the witness and substituted another; and that Connolly constantly indulged in the most violent, threatening, and obscene language towards him, in an attempt to bend him to his purposes, threatening to knock him down and thrust him out of the voting place. Hargin testified that while he was acting as inspector of the election he witnessed the disturbances, and heard the violent and threatening language of his colleague, Connolly, towards Jenny, as testified to by Jenny, and much more than was testified to by him— some of it language too obscene to be repeated; and that at the time Irving called him out, the interview as related by him was as follows:

"I can't remember the exact language; the nature of it was, he had asked me in to have a drink; I told him I hadn't time; he told me I was not so busy that I could't go in and take a drink with him. He said, 'Oh, hell! come in; I will want to see you to-morrow.' Says I, 'Well, you can see me any time.' I said he could see me up there, and he said he had something for me. He came up there on the morning of the election, I presume, in accordance with his promise. After I went out he brought me to one side, and he said, 'Here, put that in your pocket,' handing me some money. I asked him, 'What is that for?' 'What a damned fool you must be!' he said, 'put that in your pocket; take all you get and say nothing." I put the money in my pocket; there were several gentlemen present, and I didn't hide it a bit; they saw it. As I was about going in, says he, 'Now, I want to talk to you.' Says he, 'When votes is on the boxes, don't you trouble yourself much about that registry.' Says he, 'Let your word be "down."' After I came inside I told Jenny what had occurred; he shrugged his shoulders a little bit, and didn't pay any attention to it, apparently. Mr. Irving came a little back, and says, 'Don't forget, now.' He sung out, 'Down with it,' several times himself."

"Question. What did he mean by saying 'Down?'

"Answer. That is, down with the vote.

"Question. Were you checking the registers?

"Answer. I was, sir; and that was the understanding I had of the expression.

"Question. What made you take this money?

"Answer. I thought I might as well take it, and see how far Mr. Irving was going to go."

The witness further testified in reference to the snatching of ballots:

"Question. Did you notice any changing ballots that took place there during the day?

"Answer. There was one time Mr. Jenny told me to keep my eye on a ballot he had just passed to Mr. Connolly, and I did watch it.

"Question. Am I to understand you as saying that a ballot was offered to Mr. Jenny, and that he handed it to Mr. Connolly, and then called your attention to the fact?

"Answer. The manner of receiving that ballot was this: At the time of this occurrence Mr. Connolly had passed his book over to Assistant District Attorney Hutchings for the purpose of finding the names quicker than he could: he couldn't seemingly attend to his business of putting the votes in and finding the names quick enough, and Hutchings took the book and would sing out that they were all right. At that time, when I found that going on, I thought it was not right. I always showed the name upon my registry to Mr. Jenny, so that he might decide whether it was right; Mr. Jenny had his ballot, and Connolly says, 'You damned old fool,' says he, 'let me have that, I will distribute that,' snatching the ticket out of his hand. Mr. Jenny told me to take cognizance of that, and I kept my eye on him, and didn't think his action was all right; yet I wouldn’t be positive that he did change the ballots."

And as to the threats used by Connolly towards Jenny, as follows;

"He buttoned up his coat and said he was bound to have order; Connolly put his finger to his nose, like that, (illustrating,) and said, 'Do you think, you old fogy'—using similar language to that which he used before—'that you are going to come that over me? You can't do it,' he says. He made an attempt to take hold of Jenny, and Jenny buttoned up his coat and said, 'I might as well die in defence of the ballot-box as anywhere else; it is a good place to die,' he says."

The witness, though not a resident of the district, was appointed by the other canvassers to act with them, and did without further appointment or qualification. His account of the manner of his appointment is as follows:

"The person who was appointed to act as canvasser did not appear, and in half an hour after the closing of the polls the crowd was impatient, cheering and shouting for McClellan Brooks, and hooting and calling me a blind son of a bitch, and all such language as that; that I was trying to get away myself, and Mr. Jenny was determined to stand by the boxes until the board of canvassers took charge of them. Lynch finally suggested that I should be appointed to fill the vacancy.

"Question. Who composed your board as finally constituted?

"Answer. John Connolly, John Lyst, and myself."

He then testifies that in the canvass he found two votes, one wrapped inside of the other, in some cases, and thinks they were for the sitting member; and in attempting to tear one of them up, he was interfered with by Connolly, who told him, "I am chairman of the board of canvassers; all you have got to do is to stand by and look on." That he did, however, tear up one, but Connolly afterwards put the parts together, and counted the ballot with the rest; and as to other disorderly proceedings he testified as follows:

"They took the pile of tickets I had two or three times, and said they would relieve me of all labor—would not allow me to handle them at all, and Mr. Connolly counted them; Mr. Connolly told me to go out and get same oysters for them. Once I told him I didn't think it was right, although I was in the minority; he finally got a little more friendly. Once in a while, when I got a pile of tickets I wanted to look over prior to handing them to him; Lyst would put out his hand and take them from me, doing it in a half pleasant way, but a little ugly at the same time.

"Question. In the presidential tickets were there any irregularities?

"Answer. Yes; this written ticket was counted the same as one of the others. I spoke of the objection made during the day by Mr. Jenny; he said that the canvassers wouldn't allow that. It was counted the same as the others.

"Question. Did the canvassers sign the tally-books?

"Answer. The tally-books were signed before the counts were made out.

"Question. How did that happen?

"Answer. About 4 o'clock in the morning all the votes were counted, and there was some little feeling that they were not altogether right; when all the papers were collected there were some—if I remember right—I am quite sure—I will treat on it—we had twenty-three ballots that came from soldiers; we had those, as we had to send those to the supervisors—counting up those ballots, and looking over our papers after we had signed the book—allowing the clerks to make up the list, we each of us took a copy of the votes counted, and it was understood—Mr. Connolly proposed—that the clerks would take the tallies home and make out the books from that. After we had had some words upon it, there came in Mr. Beard, Mr. Cowen, Mr. Owens, and I believe a man named Kelly, and asked us how we got along. This was after we had decided that our business was done. We had signed the books in blank and left them to the poll-clerks to fill out; and they came in to ask how it was. They wanted to know if our tallies and other counts balanced. They did not balance, for the reason that the poll-list and the soldiers' votes, and the returns for the different candidates, all didn't make the proper total, and Mr. Beard, who took a pencil and some paper and commenced to show them how to finish up the books by the poll-list; and the books were passed freely around the room, so that a number of persons could examine them. I was all alone—not a single person there with me. The police did not interfere so long as no person had been struck. They said they could not, so long as there was no breach of the peace. I asked the chairman to excuse me—I would not be a party to anything of the kind—and requested officer Feagan to accompany me home from the station-house. The captain ordered him to see me home. I was told the next morning that it was half-past six in the morning when they got through, and that they regulated all the books; and on looking over the poll-list afterwards, I see they did regulate.

"Question. Do you swear that at the time you left on account of the interference of these strangers, your tally did not correspond with the poll-list?

"Answer. No, sir; none of the poll-lists corresponded—not one of the tallies held by the two clerks. They didn't foot up the same. The poll-list and other papers didn't foot up the same, for the reason that there were twenty-three soldiers votes; the poll-list only shows six at present."

In reply to this testimony the sitting member produced the depositions of Connolly and of the other canvasser, Lyst. Their testimony will be found in Mis. Doc. No. 7, Part 2, at pages 107 and 151, and the attention of the House is called particularly to this testimony. They contradict the two witnesses offered by the contestant as to all the essential matters relied on in their testimony, and both are particular in their contradiction of Hargin as to what transpired during the canvass.

The conclusion from this testimony will depend, in the mind of each member, upon the credibility given to the testimony of the witnesses on the one side and the other.

The committee are not satisfied by proof, beyond any reasonable and fair doubt, that any actual fraud was committed upon the ballot-box during the day of election, and that the conduct of the officers of election and men about the polls, testified to, should subject them to indictment for misdemeanor, rather than the box itself to rejection. The fraud upon the canvass during the night after election, as testified to by Hargin, if fully substantiated by reliable testimony would require that the return made by such officers and in such manner should be set aside; but the testimony of Hargin, upon which this charge mainly rests, is so shaken by his own appearance as a witness, and the direct contradiction of Connolly and Lyst, that it would be altogether unsafe to base any judgment upon it. The committee, therefore, find that the allegations against this district by the contestant have not been sustained.

THIRD DISTRICT OF THE TWENTY-FIRST WARD.

Against this district the contestant alleges:

"That in the third district of the Twenty-first ward one hundred and eighty-eight votes were cast for me, one hundred and thirty-seven for you, and two hundred and six for Thomas J. Barr; but that, through the fraud or negligence of the canvassers, the votes correctly counted were incorrectly credited and entered upon one of the returns; that the other correct return was lost from the office of the county clerk; that under threats and intimidations on the part of your agents, and a writ of mandamus issued on motion of your attorney, after the board of county canvassers had been already a week in session, the board of canvassers for the district were forced to sign, and file a return with the county clerk, the duplicate copy of that in the hands of the supervisors of the county."

The committee were of opinion that this allegation permitted only of proof that there was error in the return, and that under it the contestant could only show that he received more or the sitting member received less votes than had been returned for either. The whole vote in the district was as follows: Barr, 206; Brooks, 188; Dodge, 137. The vote for presidential electors upon the same ticket with Mr. Dodge, was 164; and the contestant called the attention of the committee to the fact that, while he run ahead of his ticket in every other district in the ward, fourteen in number, he was returned as receiving behind his ticket in this district 27 votes; and that, while he had large interests and influential friends among his political opponents, which led him to expect an opposite result. Several witnesses testified that he drew to his support in this district large accessions from his political opponents.

The polls were held at the liquor shop of one Fitz Simmons, whose character was represented by many of the witnesses to be that of a violent and unscrupulous partisan, a fighter, engaged in the notorious July riots, violently interfering with the polls during the day, and the canvass at night, selling and distributing liquor in his shop, where the election and canvass were held, in violation of law, and boasting the next day of substituting votes from his pocket for votes in the ballot-box. In consequence of the free use of liquor one of the inspectors, who was also a canvasser, became drugged, and fell asleep before the canvass was completed. The tallies kept by the canvassers were lost. Under these circumstances the contestant canvassed the district, and produced a large number of witnesses who testified that they voted for him. He claimed before the committee that he had so proved one hundred and fifty-nine votes, while only one hundred and thirty-seven had been returned for him. It was further contended that the committee could properly infer that a larger number than this even had voted for contestant, from the obvious impossibility of finding, in a district situate in the heart of a city like New York, four months after an election, every voter who had cast his vote for a given candidate. But however probable such an inference, it could not be safely made the basis of a judgment which should rest upon evidence, not probability. From a careful examination of the testimony offered to prove for whom voters cast their votes, it appears that several of the one hundred and fifty-nine claimed by the contestant to be proved to have cast their votes for him, thirteen at least are so proved only by proving the statements of the voter made to third persons, not at the time he cast his vote, but about the time the deposition was taken, which was four months after the election. The committee are of opinion that no precedent can be found for receiving such testimony, and they decline to recommend one. This reduces the discrepancy between the return and the number proved nine votes, admitting that there can be no doubt as to the proof in relation to the vote of each one of the remaining one hundred and forty-six. The committee do not deem it safe under all the circumstances of this case, including the uncertain character of some of the testimony offered, and the liability to mistake after so long a time had transpired since the election before taking the testimony, to disturb the return by adding these nine votes.

As has already been stated, the testimony was confined to the four precincts which have been considered in the order treated in this report. The committee therefore submit the result of the whole case as follows:

The official return for Mr. Brooks was ...... 8,583

Deduct illegal return from 15th district, 18th ward ...... 221

Deduct illegal return from 7th district, 21st ward ...... 160

381

Whole number of legal votes cast for Mr. Brooks ...... 8,202

The official return for Mr. Dodge was ...... 8,435

Deduct illegal return from 15th district, 18th ward ...... 57

Deduct illegal return from 7th district, 21st ward ...... 71

128

8,307

Majority for Mr. Dodge ...... 105

If, however, it shall be deemed by the House a safer precedent, and more in accordance with justice, to reject from the return from the seventh district, in the twenty-first ward, only the thirty illegal votes proven to have been cast for the sitting member, leaving the return otherwise as it was made, notwithstanding the presence in it of eighty-six votes believed to be fraudulent, though for whom cast it is not known, the result would still show a majority for Mr. Dodge, as follows:

The official return for Mr. Brooks ...... 8,583

Deduct illegal return from 15th district, 18th ward ...... 221

Deduct illegal votes cast for him in 7th district, 21st ward ...... 30

251

8,332

Official return for Mr. Dodge ...... 8,435

Deduct illegal return from 15th district, 18th ward ...... 57

8,378

Majority for Dodge ...... 46

Even if the return from the seventh district, twenty-first ward, be retained altogether, notwithstanding the accumulated evidence of the fraudulent votes it contains, still the conclusion would not be changed, but the result would be as follows:

Official return for Mr. Brooks ...... 8,583

Deduct illegal return from 15th district, 18th ward ...... 221

8,362

Official return for Mr. Dodge ...... 8,435

Deduct illegal return from 15th district, 18th ward ...... 57

8,378

Majority for Dodge ...... 16

The committee entertain no doubt, therefore, that the majority of all the legal votes cast in the district were cast for Mr. Dodge, and in this finding they have deducted from his poll every vote about which, in their judgment, there was reasonable ground for doubt, giving the sitting member, who holds the certificate, the benefit of all the doubts that rested upon their minds after the most patient and careful examination and deliberation. In accordance with this judgment, they recommend the adoption of the following resolutions:

Resolved, That the Hon. James Brooks is not entitled to a seat in this house as a representative in the thirty-ninth Congress from the eighth district in New York.

Resolved, That William E. Dodge is entitled to a seat in this house as a representative in the thirty-ninth Congress from the eighth district in New York.

• Report on the Contested Election of Dodge vs. Brooks (introduced on 1866-03-25 00:00:00 - CREATE - e680435) [This document] [view current proposal at this moment]
  • None (introduced on 1866-03-25 00:00:00 - REPORT_PROPOSAL - e680436) [view current proposal at this moment]