Mr. GANSON, from the minority of the Committee of Elections, submitted the

following

MINORITY REPORT.

The undersigned, being a minority of the Committee of Elections, and differing from the conclusions to which a majority of said committee have arrived in the case of Francis P. Blair, jr., whose seat is contested by Samuel Knox, beg leave to submit their views in the form of a minority report:

They have carefully considered the questions of law and fact involved in the contest, and have come to the conclusion that Mr. Blair was duly elected.

The questions presented by contestant arise on his first specification, charging that illegal votes were received at the Abbey precinct; and on his 2d and 10th, charging that such votes were also cast for the sitting member in various army organizations.

The questions presented by the sitting member arise on charges, six in number, of similar voting for contestant in what is known as the Osterhaus brigade, and in his 10th specification charging that the canvassing officers improperly rejected certain returns of army votes in his favor.

We shall follow the committee in its order of treating these subjects, and shall first consider the questions connected with the

ABBEY PRECINCT.

We contend that the poll-book of the Abbey precinct should not be rejected from the count:

1st. Because the contestant makes no charge of fraud against the officers conducting the election at this precinct, and does not claim the rejection of the poll in his notice of contest.

2d. Because, if it was allowable to present new grounds of contest at the hearing before the committee and the House, the charges now presented, if admitted to be true, would not warrant such rejection.

3d. Because the charges are not sustained by the proofs.

The 1st section of the act of 1851 (9th Statutes, p. 568) requires that the grounds of contest shall be specified particularly in the notice of contest.

This is but the re-enactment of the parliamentary rule; and the practice has been uniform under this to restrict the contest to the points presented in the notice; and the 9th section of the act declares all evidence illegal which does not bear on the specifications of the notice, by restricting the evidence to be taken to the specifications made in the notice. The only ground presented by the contestant, in connexion with this precinct, is contained in his first specification, which is in the following words:

“1st. That at least 400 illegal votes were cast for you at a precinct known as the Abbey precinct, in said district. That the persons voting had not been citizens or inhabitants of the State of Missouri for one year previous to said election; nor had they been residents of said district for three months previous to said election. Many of said voters were minors under the age of twenty-one years. A list of the voters whose votes are contested is annexed to and made a part of the notice.”

It will not be pretended that this notice declaring the intention of the contestant to contend meant merely that the individuals named were not qualified voters, for one or the other of the reasons mentioned contains, either in form or substance, notice that it would be “contended by the contestant that the voting at this precinct 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 ”—which the committee report to be the present ground taken by the contestant.

It is unnecessary to argue this proposition. It is so plainly an attempt to substitute an entirely new and different ground of contest from that specified in the notice, that the unfairness and illegality of the proceeding is self-evident. It is unnecessary, also, because this course is subsequently recognized by the committee itself to be illegal, even whilst declaring their purpose to allow it to be done.

They say: “The House will not fail to notice the extraordinary character of many of the allegations of both contestant and sitting member, as well in the matter as in the manner of their presentation. For vagueness, uncertainty, and generality, they arc, in the opinion of the committee, without example, and seem to have been drawn in studious disregard both of the act of Congress and of all precedent. But as neither contestant nor sitting member was in a situation to take exception to the substance or mode of the other’s pleading, the committee were not called upon for a decision upon this point, but present the case as they find it upon the record. They do not feel at liberty, however, to permit these pleadings to pass into a precedent without recording the opinion that many of the allegations on both sides are bad, both in substance and form.”—Report, page 2.

Our position with reference to the insufficiency of the first specification or allegation to enable the contestant to claim the rejection of the Abbey poll will not be controverted, we believe, by the committee; nor will they deny that the language just quoted was intended to justify them in overlooking the defect of this allegation in form and substance for the object sought under it. Here, then, is an acknowledged defect, which leaves the contestant without a case; for without the rejection of this poll he is defeated by nearly four bundled votes. And the committee avow themselves “not called upon for a decision upon this point,” but assume to have exhibited impartiality by overlooking like defects, which, they say, are to be found in the pleadings of the sitting member. Having told the House that the parties have drawn their pleadings “in studious disregard both of the act of Congress and of all precedent,” they then inform that body that they themselves have imitated the parties, and have also disregarded the rules of law in conducting the inquiry referred to them.

Is it an admissible principle that, instead of considering what is alleged, and whether the allegations made arc proved in their proper order, the committee should enlarge the scope of the allegations of the parties at their discretion? Even if it were possible to be perfectly impartial in such relaxations of legal principles, it would not be possible to adjust the scale of indulgence evenly between the parties even in ordinary circumstances, and certainly not in the exasperated state of feeling which surrounds this case. How, for example, can the committee assume the position of being just towards Mr. Blair, when they permit Mr. Knox to make a new allegation, under which he is enabled to throw out some four hundred votes as spurious, whilst, under the allegation which accompanied his notice, he could affect but about seventy votes at the utmost? They certainly have not struck off four hundred votes from Mr. Knox’s poll, which would be the practical test of fairness; and if it be said that, in part requital, they have added one hundred and eighty-five votes to Mr. Blair’s poll which the canvassers disallowed, the reply is: they have done so under the strictest and most technical charge; that the action of the canvassers was, with respect to the returns in question, erroneous.—See 10th specification, page 304.

In dealing with this case, the committee expressly declare, in the passage we have quoted, that their action in it is not to be taken as a precedent. We hope not; we trust, indeed, that the House will take care that it shall not be a precedent.

2. Nor would the circumstances recited by the committee, if admitted to be true, support the allegation made for the first time in the committee-room, viz: that “the voting at this precinct was of such grossly fraudulent character as to involve all concerned in it,” and make it proper to reject the whole poll; nor were the polls rejected in the case of Blair vs. Barrett, cited as a precedent for this case, rejected upon the grounds stated in the report before us.

Something more is wanting to convict duly selected officers, acting under oath, of perpetrating a fraud, than merely showing, first, that fifty-six paroled prisoners and thirty-two cavalry men, and possibly others, succeeded in getting their votes taken when they should not have been received. Second. That at various times during the day crowds of persons were seen about the polls, and probably voting, who were unknown to two of the neighbors. Third. That one of the judges did not act, during the whole day, in his official capacity, but only during part of the day. Fourth. That a single friend of the sitting member was disorderly in the neighborhood of the polls; and, fifth, that it is not proved affirmatively that the judges administered the oaths required in cases of persons voting at other than their own precincts. These arc the statements or charges made in this case. We have but to compare them with the charges made in the case of Blair vs. Barrett to see how entirely different, in all respects, the cases are.

In that case the tenth charge was, that, at the western precinct of the ninth ward, Barrett dealt out liquor freely in a house near the polls, contrary to law; that by this means he induced many persons to cast illegal votes, and his partisans were stimulated to commit violence on the judges, actually having struck one of them; that by such means the judges were intimidated and made to receive many hundreds of illegal votes. The eleventh charge was that the election at the Gravois coal mines was conducted in gross fraud; that the judges refused to administer the oaths required by law, allowed great numbers of votes to be cast that they knew to be illegal, threatened to commit violence upon those who challenged the fraudulent votes; that Barrett was present and countenanced these frauds; that one of the judges could not read, another judge and one of the clerks had been convicted of felony, and that neither of the judges or of the clerks were sworn.

The twelfth charged the judges of the eastern precinct of the ninth ward with fraudulently refusing to allow challengers; refusing to administer the oaths required by law and to question fraudulent voters when challenged.

The thirteenth charged the same facts against the judges of the eastern precinct of the eighth ward.

The nineteenth charged that the judges and clerks at the eastern precincts of the fifth, sixth, seventh, and eighth wards, at the Gravois coal mines, at George Sappington’s house, and at the Harlem house, were not sworn.

The tenth, eleventh, twelfth, and thirteenth charges were sustained; and so much of the nineteenth as charged that the officers of elections at the Gravois coal mines, at George Sappington’s, and at the Harlem house, were not sworn; and they were excluded by the committee and the House in that case; and these last named were the only polls excluded in that case at all.

The polls of the eastern precincts of the eighth and ninth wards, and the western precinct of the ninth ward, although tainted with fraud by the intimidation of the judges, by their refusal, not mere neglect, to put the oaths required by law, by their threats against challengers, by their allowance of multitudes of illegal votes, as shown not only by the enormous and unexplained increase of the vote, but by the positive proof of illegality in about two hundred individual cases, and all the other circumstances charged by the contestant and declared to be proved by the committee, were not thrown out of the count at all, as stated in the report before us. This is an unaccountable mistake of the fact into which the committee have fallen. It is true that the language quoted from the report in that case, tending to justify the exclusion of polls tainted by fraud, is correctly quoted; but the argument was used only in aid of the legal point that the judges had not been sworn, which brought the case within the recognized congressional precedents. No polls were excluded save those at which the officers were not sworn; and all of these were excluded, although, at some of them, no actual fraud was alleged or proved; and it was upon this point, as presented not only by the report of the committee, but by the leading members of the House, (see particularly the speech of the Hon. Mr. Stevens, of Pennsylvania,) that the House gave Mr. Blair his seat in the thirty-sixth Congress.

The House cannot sanction the report of the committee in this case when nothing is alleged in the notice of contest but the reception of illegal votes; and nothing more than that, in substance, is alleged or proved before the committee without establishing a most dangerous precedent. We mean not to be understood as saying that a fraud is not alleged in general terms in the report; but we mean to say no specifications are alleged or proved which imply fraud.

3. In what has been said it has been assumed that the statements on which the committee predicate their judgment were sustained by proof; and we argued that no presumption of fraud would attach to the judges even on the assumption that every fact charged was true. Let us now consider the proof in the case, and inquire, first, what individual votes are shown by any proof whatever to be illegal.

It is said by the committee, that there is positive testimony that “eighty¬eight of the voters, whose names are given, fraudulently cast their votes in a body, without question or precaution on the part of the judges, and the proof is little less conclusive as to many more.”

The eighty-eight persons who are here said to have cast their votes in a body, &c., are the fifty-six paroled prisoners and the thirty-two cavalry soldiers, whose names are supposed to be found in the poll; and the identity of the persons is assumed to be established by the identity of their names. This is not the law. (See 2 Phillips on Evidence, p. 214.) But we waive that point, and proceed to call attention to the recklessness of statement exhibited in this passage.

Here it is said that these eighty-eight men voted in a body, without question, &c., when there is not a syllable of evidence given by any witness as to the manner of their voting, whether consecutively or not, or who makes any statement at all as to whether these, or any other voters, were questioned or not; and the only evidence of their having voted at all is the poll-book itself, which contradicts, in the most striking manner, this aspersion on the judges, by showing that the men did not rote in a body. The voters are numbered in the order of their votes, and the names in question range from No. 29 to No. 476, (see all the numbers in the appendix,) showing that the votes were scattered throughout the day, and that not more than half a dozen of those voting did so, consecutively, at any time.

The committee are mistaken, also, as to the number of those whom they suppose to be affected by what they call positive testimony. But twelve names are found on the poll-book which would be claimed to represent the cavalry men of company C, and but two of company E. (See names in appendix.) So that, instead of eighty-eight, there are but seventy which any one could claim as illegal voters.

Another important error of the committee, the bearing of which will appear further on, appears in this statement that Captain Constable had charge of the paroled prisoners. This was not the fact. They were commanded by their own officers, some of whom testify, in the case, for contestant. Captain Constable was merely a quartermaster, and had supervision only of the laborers, mechanics, teamsters, ostlers, &c., in and about Benton barrack and the corral.

But let us consider the charges made by the contestant, in the order stated by the committee, and in their own language.

They are, first, that “they,” the judges, “admitted illegal voters to cast their ballots in a body, without any evidence that they even administered to a single one the oath required, by law, of non-residents.”

What is here said of allowing illegal votes to be cast in a body has already been sufficiently noticed; and we quote the passage, to remark on the admission which it contains, that the committee made this charge against the judges of allowing non-residents to vote without being sworn without having any evidence whatever before them of the truth of it, but based altogether on the extraordinary propositions that it contains; that it devolved on the sitting member to show affirmatively that the proper oaths were administered, and that in the absence of such showing they were authorized to assume that the oaths were not duly administered. The reasoning of the committee appears to be, that as they were satisfied that eighty-eight illegal votes were cast, they were authorized to assume that the judges connived at this abuse, unless the sitting member showed the contrary by affirmative evidence; and hence that they are authorized to assume that the judges did not administer the oaths without having any proof on the subject being before them. Unquestionably, the presumption of law is the other way, and in favor of the judges having done their duty until the contrary is clearly shown, and when it appears from the poll-book that the contestant had friends on the ground all the time, and that he actually examined two witnesses, who were present, for four hours on the morning when the heaviest vote was cast for Mr. Blair, and no such failure is attempted to be proved by them, or by any other witness. No one who reads over the record of the examination, and observes the temper manifested by the contestant throughout the whole of it to expose every irregularity, can believe that if the judges had been open to this charge, it would not have been distinctly and affirmatively proved by him; the presumption of law in favor of the judges is thus confirmed by a circumstance which, independently, would be conclusive of the fact.

The next charge made by the contestant against the judges is, that they “acted as partisans of the sitting member, and, against law, exchanged places with other partisans not authorized to act as judges.”

The evidence on which this charge is made is found in the testimony of John M. Reuter. His 6th answer is: “ The judges appointed by the county court were Mr. Price, B. Hammersly, and Mr. Carpenter.”

“Question 7th. Were they not all partisans of Mr. Blair?

“ Answer. They were. There were only two, I have heard, electioneering in his favor, and these were Messrs. Price and Hammersly; the third, I understood, was a partisan of Mr. Blair’s.

“Question 8th. Did these three men above named act as judges during the election day ?

“ Answer 8th. Not during the time I was there.

“Question 9th. Who acted in the place of either of them ?

“Answer 9th. Jerry Millspaugh acted in the place of Carpenter.

“Question 10th. Who did he support for Congress?

“ Answer 10th. He electioneered, in the afternoon, for Frank P. Blair.

“Question 11th. Who was judge in his place while he was electioneering ?

“Answer 11th. Mr. Carpenter.

“Question 17th. How long were you at the Abbey precinct polls, that day, altogether ?

“Answer 17th. About two hours—from about seven until nine o’clock.”

There is not the slightest warrant in this evidence, taken in its most forcible meaning, for the charge that these men, whilst they were judges, acted as partisans of the sitting member. Contestant did not, in his question 7th, charge that they acted as partisans whilst acting as judges; and the witness responds by saying that he had heard two of them electioneering in favor of Mr. Blair, but he does not say, or mean to be understood as saying, that they did so on election day.

As respects the charge that Millspaugh exchanged with Carpenter, whilst the witness does say that he did, his own testimony, just quoted, shows that the witness could not be cognizant of the fact he swears to, for he swears he was only present from 7 to 9 in the morning, and that Carpenter did not act whilst he was there, and there is no proof in the record that he ever acted at all, or was qualified at all.

The next charge is that they “surrendered the voting place to a violent partisan of the sitting member.”

The only support for this charge is found in the testimony of the witness just quoted. He says Mr. Elleard destroyed the tickets of Mr. Blair’s opponents, and said, “ Damn it, we don’t want any such tickets round here; we have it our own way here to-day.” He also says, page 71, answer 5: “I saw one man put out of the room because he would not vote for Blair.”

“Question 6. What is his name?

“Answer 6. I do not know it; he was an old man.

“ Question 7. Who put him out ?

“Answer 7. Charles Elleard.

“Question 8. Did you see the commencement of the controversy between Elleard and the man put out ?

“ Answer 8. No, sir; I did not.

“Question 9 Do you mean to swear that he was put out because he would not vote for Blair ?

“Answer 9. I do not know for whom he wanted to vote. I can’t say that he was put out because he did not want to vote for Mr. Blair, but because he wanted to vote different.

“Question 10. Was not his vote rejected because he was not legally entitled to vote by the judges ?

“Answer 10. I do not know.

“Question 11. Do you know of your own knowledge whether he was a legal voter or not?

“Answer 11. I do not; but he was an old man and an American.

“ Question 12. Had you ever seen him before?

“Answer 12. I could not swear that I had; I might have seen him or I might not.

“Question 13. Have you ever seen him since ?

“Answer 13. I think not.”

This second example of Reuter’s testimony is precisely like the first just quoted, in which it appeared by his statements made in response to the interrogations of the contestant, that he swore to what he did not know, saying that Carpenter acted as judge in the evening, whilst he testifies that he was not there after 9 a. m., and all the time he was there Messrs. Millspaugh, Price, and Hammersly were judges. So on the point now under consideration, he first testifies positively that Mr. Elleard put a man out of the house because he would not vote for Blair; then says he did not know for whom he wanted to vote, or whether his vote had not been rejected because illegal by the judges, and, therefore, removed from the stand by their direction, or indeed anything whatever about the occasion of his removal.

The destruction of the tickets and the profanity of Elleard, to which the committee attach so much importance as to quote his language, if true, are made too much of altogether, as it seems to us. The destruction of the tickets of opponents when scattered about carelessly on tables, as those in question seem to have been, is a common incident of elections, and for that reason the friends of the various candidates commonly retain possession of them, especially at precincts where they are greatly in the minority. That this charge is a mere afterthought of the contestant’s is conclusively shown by the fact that he did not allege in his notice that his friends were prevented from voting at this precinct, and by the number of votes actually cast for him—as many, he would pretend now, as he was entitled to receive at the precinct.

This Mr. Elleard, for the purpose of impressing the House with the terrors of his presence at the polls, is described as a race course keeper, when the proof shows that though he owned the place that had once been a race-course, it was not a race-course at the time in question, and, for aught that appears, had not been since he owned it. It was then a pasture for the horses of the government, and one of the witnesses of contestant, Mr. Bobb, who attended the polls for two hours in the morning and again in the evening, says Mr. Elleard was not at the polls whilst he was there, but was occupied attending to the horses in the neighboring pasture. It would not be difficult to find two or three persons who had refrained from voting at any contested election for fear of being rudely spoken to.

The next and last charge made against the judges is that they “achieved the astonishing result of getting near four times as many votes as were ever before or since polled at this precinct from voters, all strangers to long residents of the district.”

The report says, page 5: “In reply to this evidence, (the contestant’s,) the committee do not find in the whole record that the sitting member has taken any testimony to support the legality or fairness of the voting at that precinct, except the testimony of Captain Constable, the same person to whom the watch before referred to was presented, taken in this city after the hearing was commenced, and excluded from the consideration of the committee by a vote of the House.

“The sitting member has contented himself with relying upon such testimony as to the validity of this vote as could be extracted from the witnesses offered by the contestant by cross-examination, which consisted in statements that there were teamsters and others in the employ of Captain Constable, and others not soldiers, and also employes of the United States at a government corral, a short distance from this voting precinct, who sometimes wear soldiers’ clothes, and who were believed to be citizens of St. Louis, and who might have cast this great vote. That they did so no one has testified; but the name of each one of these illegal voters was furnished the sitting member in the notice of contest, and he had sixty days after his answer to take any testimony he pleased as to their right to vote. A record of all the teamsters and employes of the government at Benton barracks, and at the government corral, not soldiers, existed at those places. It could have been compared with the poll-list, and if found there the men themselves were at hand to name their residences in some one of the wards of the district, or others could have testified to the fact if it existed. If these votes came from the sources suggested, the proof of it was so easy that its absence adds weight to the testimony against their legality.”

This, in substance, declares that it was only necessary for the contestant to say that all the votes cast at the Abbey precinct were illegal; nay, more; for when it is proved by Pasquier, one of the contestant’s own witnesses—and not on cross-examination either, as the committee say, but in reply to questions put by contestant himself—that the large vote complained of was cast by three hundred to three hundred and fifty persons, known to him to be residents in the district, but who were temporarily employed near the poll by the quartermaster —(see extract from the testimony in appendix)—the committee say that will not do. Mr. Blair had notice that these men were all illegal voters; and though Mr. Knox’s own witness swears to the contrary, Mr. Blair should have had testimony of his own, and should have verified what Mr. Knox’s witness said as to the civilian character of the great mass of these voters by showing their names as such on the rolls of the quartermaster. The proof, they say, was so easy, in regard to this statement, that its absence adds weight to the testimony given against their legality. It is difficult to believe that such reasoning could be adopted by any one not having a foregone conclusion. The committee seem to forget that it is Mr. Knox who has to prove these votes to be illegal, and that his work was not ended when he charged that four hundred illegal votes had been cast for Mr. Blair at this poll, and furnished him with four hundred and eighty names, (the whole poll,) forty-one of whom voted for Mr. Knox himself, “as the names of each one of these alleged illegal voters ”—See specification 1 and list appended.

On what principle of law or common sense is it that Mr. Blair is required to fortify the double presumption of the legality of the votes cast, arising from, first, their names being on the poll-list, and, second, from the testimony of Pasquier, a witness for contestant, proving them to be qualified voters—testimony which should be decisive for Mr. Blair with every fair-minded man, not only because it is given by a witness of his opponent, who is manifestly candid and truthful, but because the contestant himself could, and unquestionably would have contradicted it by the rolls of the quartermaster referred to by the committee, if the statement had not been true?

The diligence he has shown in comparing this poll-book with the rolls of paroled prisoners and other organizations, far and near, leaves no room to doubt that he would have produced the quartermaster’s roll also if it had not made against him. The theory of the contestant, which the committee adopt, is, that the vote at the Abbey precinct was swelled by the vote of paroled prisoners.

To countenance this theory, they most unceremoniously allowed Mr. Knox to supersede their officers, and put Captain Constable, a friend of Mr. Blair, in command; and they stuck to the theory, although the contestant, having searched the rolls of the fifteen hundred paroled prisoners, could find but about fifty names to correspond with any at the Abbey poll, and in defiance, too, of the testimony of contestant’s own witnesses, pointing out the true and legal source from which the increased vote came, and when it is absolutely certain that the contestant would have confuted his witnesses’ statement, if it had not been true, by the rolls of the quartermaster, to which the committee refer.

We have thus considered every ground upon which it is contended that this poll should be excluded, stating them in the language of the committee and quoting the language of the witnesses called to support them, and we believe that no fair mind can read what we have written without being convinced that there is no just ground for excluding the poll from the count. It is apparent, indeed, that the idea of excluding this poll was but an after-thought of the contestant himself, resorted to only when it was manifest to himself that he could not identify a sufficient number of the voters with the paroled prisoners and soldiers, whom he bad erroneously supposed had cast the vote, to deprive Mr. Blair of his seat.

The second specification charges that Mr. Blair received seventy-eight votes from companies B and K, 32d regiment, which were illegal, because the voters had not resided in the district three months; and in support of this allegation, the contestant offered in evidence the muster-rolls of these companies. The sitting member objected, first, to the authenticity of the rolls offered, and, second, to the competency of the evidence on the question of residence, which was the only question raised by the specification under consideration.

The committee overruled the first objection, but sustained the second, and say (page 8) “that the muster-roll is not evidence of the residence before enlistment of the soldiers whose names it bears. It is not of the slightest consequence to the recruiting service to know the residence of the recruit. The law does not require it to be ascertained, nor does the muster-roll purport to give it, but only the place where the recruit joined for duty or was enrolled.”

It might be supposed from this that, as non-residence was the only ground upon which the votes of the companies B and K were questioned, and that as the muster-rolls which constituted the only evidence offered to establish it were declared to be incompetent for that purpose, there was an end to the controversy respecting those votes. Not at all. The contestant claimed the right to impeach them for infancy, and not being members of the companies at the time they voted as such, and offered the rolls as evidence on these points. Mr. Blair objected not only because of the unfairness of making use of testimony in the record to support charges not presented there, even if competent to prove the charges had they been duly presented—it being impracticable for him to get testimony at that stage of the proceedings to meet it—but also because the muster-rolls were not, by law, evidence of the ages of the soldiers, no entry being required by law to be made in them on the subject, as shown by many of the rolls in the record before the committee. (For example see ex. 26, 27, and 28, and a majority of those of the Osterhaus brigade.)

The act of 1862 (12th Statutes, page 502) merely estopped soldiers from pleading non-age by requiring that every enlisted man should be deemed and taken by the courts to be at least eighteen years old, whatever the real truth might be. It required no questions to be asked or oath to be taken from a recruit on the subject of his age when mustered into the service, and no entry to be made on the muster-roll.

Nevertheless, Mr. Blair said if the committee dealt with the subject as Mr. Knox proposed, by striking off the polls the names of such voters as appeared by the muster-rolls to be under age, or whose names were not on the muster-rolls, the result would be to strike off three hundred and four for Knox, whilst if all the voters challenged by name for any reason as having voted illegally for him were stricken off, the number was but two hundred and fifty-eight.

The committee held that all the muster-rolls should be received as evidence on the question of age, but only those dated in 1862 (six in number) should be admissible to prove who belonged to the companies. This, in effect, declares that the muster-rolls shall be evidence for Mr. Knox, but not against him, for the rolls of his voters were dated in 1861, and, for the most part, contained, as already noted, no entry of age, whilst the rolls of Mr. Blair’s voters were dated in 1862, and all purported to give the ages of the soldiers. The illegality and unfairness of this decision seems obvious enough without argument.

It cannot require argument, first, to show the House that it is illegal and unfair for a contestant who challenges the legality of some seventy-eight voters on the ground of non-residence to be allowed to have some of their names stricken off the polls, on proof that they are minors, and others on proof that they did not belong to the companies with which they voted; second, that it is illegal to make the muster-rolls evidence of age, when entries purporting to give it happen to be found on them which neither the law, regulations, nor customs require to be made; or, third, that it is arbitrary and unjust to make some half a dozen rolls which happen to be dated in 1862, and which tell against the sitting member, evidence of membership, whilst those dated in 1861, which tell against contestant, are ruled out.

It may be true, as the committee say, that the greater proximity of date of Mr. Blair’s rolls make them, in some measure, better evidence of membership at the date of the election than the rolls of an earlier date which contain the names of Mr. Knox’s voters. But this is merely a speculative opinion, and is debatable, as will presently be shown.

The ground on which the committee discriminate in favor of the genuineness of the vote of the Osterhaus brigade on this point (whilst they arc obliged to allow that great frauds have been committed in it in other respects than in any other organization which voted at this election) is, that as more time elapsed between the muster and the vote, and during that time the recruiting was going on, it is more probable that the names not found on their rolls were recruits than with Blair’s missing voters.

This, however, is but one aspect of the subject. The committee do not consider at all the circumstance which probably accounts for the absence of the large number of Mr. Blair’s voters, which occur in companies mustered in six weeks after the election, to wit: that the members at the date of the election they had been rejected at the muster or had obtained substitutes.

Charges from such causes every one familiar with the subject knows to be numerous at such a period in these organizations. To assume now that men did not belong to a company on the 4th of November, when a sworn officer of the law, who took their votes on that day, certify that they did, in the act of certifying the polls—this, too, without any notice to Mr. Blair that these voters were challenged on that ground at all, merely because some other officers do not report them as mustered into the service six weeks afterwards—seems to us to be most unsatisfactory reasoning. The position of the committee on this point is, in our judgment, indefensible. The muster-rolls are either evidence or not evidence on the point in question; and it is impossible for a mind which holds to legal or logical principles to be satisfied with a decision which makes these rolls evidence against Blair and not against Knox, grounded merely on the differences in the dates of the rolls. There is no difficulty with the subject on legal principles. The returns of sworn officers must be accepted as prima facia evidence on an election question, just as the muster-roll would be on any question connected with military matters; and if, as in the present case, the law authorized certain officers to take a vote of the members of a military organization for civil purposes, the return would be prima facia evidence of the qualification of the voters, just as in other cases. That evidence would not be rebutted by a muster-roll, if even the same date, for both might be true; and whilst, as in the present case, none of the muster-rolls purport to give the rolls of the companies on the day of election, the discrepancies between them cannot create the least doubt as to the verity of either. Three votes are stricken from Blair’s poll as not found on the rolls of companies R and K, 32d regiment. Joseph P. Newsham was adjutant of the regiment, and for that reason his name does not appear on the roll of his company, K; John Dambach and Charles Suchee, who voted in company K, were members of company B, in November, when mustered.

Under the 10th specification, charging non-residence on all and minority on some, with respect to the votes of twenty-six companies, the committee, in the manner above considered, compared the poll-books with the muster-rolls of these companies, and after throwing off from Mr. Blair’s poll seventeen names as minors and not members, strike off the names of thirty-two persons returned as “river men”—“which means,” say the committee, “as the committee are informed, that the men live upon the river, and kindred employments, without claiming or having a residence in this district.”

This information, thus acted on, obtained outside the record, was contradicted by the record itself; for the act of voting showed conclusively that these men claimed to reside in the first district; and we are informed that the whole landing of the city, and all the boarding-houses where they lay up, when the boating season is over, are in this district; and that the right of the “river men” to vote in it has never been questioned before, and we certainly think such question comes with an ill grace from a candidate who it appears, on his own testimony, (page 366,) lays up every summer, and between times, in Massachusetts, where his family have resided for the last seventeen years, after the courts close in St. Louis. It seems unjust to us, too, to deny the right of suffrage to the hardy men upon whose toil, more than upon that of any other class, is built up the commerce of the city, out of which the contestant derives his livelihood in his occasional visits to the place.

The evidence we have been considering the committee allows to be the only testimony which affects a vote cast for Mr. Blair; but before passing to the consideration of his reply and counter charges, they make some comments on the course of Mr. Eads in this election, giving some countenance to the charges of the contestant which are sweeping, and therefore meaningless, when made by him, but coming from the committee are better calculated to impress many minds than anything they have said professedly based on testimony. It is upon the testimony of Mr. Hume, the editor of the Missouri Democrat, whose malignant falsehood towards Mr. Blair was developed before to the House, in connexion with the charges of the Hon. Mr. McClurg, that the committee assume that Mr. Eads induced his men to cast many fraudulent votes for Mr. Blair, which could not be traced, and could not therefore be deducted from his poll. We will show upon what trivial grounds the committee make this grave charge. Hume says, page 57, he came up in the cars from Carondelet, where Eads’s boat yard is situated, in the forenoon. There was a crowd of gunboat men around the polls at Carondelet, out of whom the cars were filled. Saw a man distributing tickets in the cars among men whom he took to be gunboat men. Heard nothing particular, except one man told him they were all for Blow and Blair, and “that they had succeeded in getting in a good many votes at Carondelet for Blair before the old judge asked them too closely about their residence, how long they had been there, &c., but that he had got too particular, and some of them could not vote at that poll.”

“Question 16. Where did he say the men principally came from?”

“Answer 16. From Cincinnati and Louisville, and that they had not been in the State for over three or four months.”

It is upon such testimony, and from a most violent partisan, that the committee gravely state as a fact established before them that a large number of men were sent up to the city by Mr. Eads to cast fraudulent votes for Mr. Blair, and this is asserted, too, when by the testimony of Mr. Mann, page 38—a witness for contestant, and not a friend of Mr. Blair—it is shown that many of Eads’s men lived in the eighteenth district; that not one-twentieth of them were really from other cities, and where, if a fraudulent design must be attributed to Mr. Eads in sending the men to St. Louis, it was far more probable that it was to aid Mr. Blow, in whose behalf he had spoken at the Soulard market, to which place it appeared he had previously paid the fare of his men to hear him. But Mr. Mann testifies positively that Eads connived at no illegal voting and exercised no undue influence. He endeavored by his public speeches to persuade the men to go for Blair and Blow, but paid the fare of all to the polls, and paid them all wages for the day, whether they voted as he wished them to or not.

It is to be regretted that upon no other grounds that the report of a conversation made by a partisan of the temper of Mr. Hume with some unknown person, the committee should have made such comments upon Mr. Eads’s course. The testimony before them shows him to be a most liberal and fairminded gentleman, utterly incapable of defrauding any one; and the whole country knows that to his genius, almost as much as to the valor of Grant and Porter and the men serving under them, we owe the opening of the Mississippi, for those gunboats, so effective in the capture of Forts Henry, Donelson, Vicksburg, Grand Gulf, &c., and in keeping open the river since the capture of those places, are the products of his genius, in a region of country where previously naval armaments were unknown.

Mr. Blair's specifications.

We premise our review of this part of the case by remarking that we cannot agree to the statement of the committee, that the specifications of Mr. Knox and Mr. Blair are alike defective. On the contrary, we assert that Mr. Blair offered no proof not covered by his specifications in the strictest construction, and that he neither asked nor was allowed any latitude. Mr. Blair alone has not been allowed to challenge any voter before the committee not named in his notice, and the ground upon which the vote was charged to be illegal assigned in the most certain and unequivocal manner.

Mr. Knox, on the other hand, has been allowed to challenge a whole poll on the ground of fraud without a hint of such a purpose in his notice, and numerous individual votes have also been stricken off Mr Blair’s poll on the ground of non-membership of the company with which they voted, without a suggestion anywhere that a vote was to be impeached on that ground. Many names have been stricken off his poll for minority, with no other specification than that a portion of certain named persons were minors. For example, he charges that many of the voters registered in some twenty-six poll-books, to which he refers, were minors.

The first six specifications of Mr. Blair’s relate to the companies of the Osterhaus brigade, composed of the seventeenth, twelfth, and third regiments Missouri infantry, and third and fourth cavalry. From company K, seventeenth infantry, the committee deduct but twenty of the twenty-one votes claimed by Mr. Blair. Mr. Blair claims to have proved one non-resident voter in company I, of the seventeenth regiment. The witness, in reply to the question, “Do you know where any of the members of company I came from?” says, (page 328,) “I know H. Heller (the man referred to) came from Cincinnati.”

“Question. How do you know that?”

“Answer. I know it from what he told me.”

“Question. When was it he told you so?”

“Answer. It was in October, ’61.”

The committee say they “are of opinion that this was not competent evidence to prove in this case that the voter was not at the time of the election a resident of the district.” The testimony is distinct that the man said he came from Cincinnati to enlist. This decision means that it is incompetent to prove a man’s residence by his declaration, made at a time when it is not a point in issue. This is erroneous. (See 1 Hill & Cowan, notes on Phillips on Evidence, p. 224.)

Mr. Blair claims to deduct twenty-three, the whole vote of company F. The committee allow but one. Three witnesses were examined touching this company, Julius Scher, page 328, Charles Zimmer, page 330, Hugo Golmar, page 331. The first swears that two of the company, Steamburg and Schaub, came from Cincinnati ; that he knew them both there, and that Clemens Graf and Paul Schernman lived in Philadelphia when enlisted, as they told witness. Zimmer, first lieutenent of the company, who resided in first district, and voted for Knox, testifies that he didn’t know where any of the company came from, save three, one of whom was Schaub. The captain also knew but three of his company as coming from St. Louis. He mustered forty men for the regiment in Cincinnati, but could not tell the names of one of them. The committee, however, rejected none but Stearnburg’s vote, disregarding here again the proof of the declarations of Graf and Schernman, and the strong probabilities against the residence of all save three of the voters of this company, arising from the fact that neither the captain nor lieutenant knew them to be residents. We think three are clearly proved to be non-residents.

From company A Mr. Blair claims ten deductions. The committee report but nine. The tenth man, Sergeant Rothe, we suppose, is not rejected by the committee, because one of the witnesses says he came to St. Louis, and was there a short time before enlisting. The other, however, swears that he claimed Cincinnati to be his home.

From company 1, 12th regiment, Mr. Blair claims the deduction of forty-six names. Gustavus Benthe (page 360) testifies that he helped to raise the regiment, and gives numerous details respecting the composition of this and other companies, showing a minute acquaintance with them, and his testimony is confirmed in every point by undisputed proof in the case. He says that every man in company D came from either the first, second, or third wards—all outside the first district. But the captain of the company states (page 332) that his headquarters, or recruiting station, was on Second street, between Spruce and Myrtle streets, and for that reason alone regards the captain’s testimony as conflicting with Benthe’s testimony, and therefore reject Benthe’s altogether. But the captain, so far from contradicting Benthe’s testimony, confirms it; for, although he says he did little of the recruiting himself, and knew the residence of but three of his men, he says they all came from outside the district, and the committee actually reject these three, although recruited within the district, so that the committee did not really think the only reason they assign for rejecting the forty-three other votes challenged a valid one. How can the House accept and act with confidence upon a report characterized by such facts? Captain Sauer testifies (page 333) that Henry Borno lived in the second ward.

From company C Mr. Blair claims a deduction of twenty-three votes. The captain, first lieutenant, and orderly sergeant, all testify that but few of the company came from St. Louis. The captain and orderly sergeant, on being shown the poll-list, identify Huffman, Schwartz, Heiner, Betzinger, and Frost (five) as from Illinois; Feldman, Jagler, Lutzer, and Hushkamp (four) as from Camp Cole, near Sedalia. The sergeant testifies further, that Straubbe and Husr were from the southern part of the city; that is, from the second district, and that eleven voters—Nos. 11, 12, 13, 15, 25, 26, 27, 28, 29, 30, and 35—were not members of the company on the 4th of November. The committee reject the first eleven, but miscount and call them ten. They retain the last eleven, notwithstanding the sergeant testifies positively (page 361) that no such names were on the rolls, or had joined the company, fourteen days after the election, when he returned to his company, because, he says, the first lieutenant had been absent since August recruiting, and the committee seize upon the idea that the lieutenant might have had these men with him, forgetting that they had to be with the company to vote; and yet the committee strike every vote from the poll of Mr. Blair not found on the roll of the company made out six weeks after the election. Strike off three of these votes, and the forty-three of company D, all retained by the committee against their own reasoning, and Mr. Blair is elected, even on their own counts.

From the 5th regiment Mr. Blair claims to have thirty-four votes deducted. He fails, as the committee think, and as we argue, to identify that part of the regiment which voted as company G, recruited in Wisconsin; but the witness does prove that John H. Bottorp was a non-resident. Bottorp’s vote should be rejected, and so should those of Henry Hosli and Frank Waters, both of whom are returned as from Bonhomme township. The committee refuse to reject Bottorp’s vote, saying, the witness only knew of his non-residence by his telling him. The witness did think that conclusive; but he does not say that this was his only reason for the statement.

The committee ruled out the testimony as to the 3d regiment of the Osterhaus brigade, and properly, we think. They sustain the allegation of Mr. Blair’s 10th specification, that the irregularity upon which the canvassing officers rejected the returns from certain companies enumerated by him was not such as to vitiate the returns. This applies to nine of said companies. There was, in fact, no defect whatever, and the only pretence for not counting the votes was, that the returning officers had not cast them up.

Recapitulation.

The following is the count of the committee :

The official canvass gives to the sitting member and contestant the following vote:

..................................................Blair.

Official........................................4,741

To be added from rejected polls..... 181

................................................... 4,922

To be deducted, rejected by committee:

At Abbey precinct........................................................................................424

Company B, 32d regiment, (5 members, 10 not members)..............................15

Company K, 32d regiment, (9 members, 16 not members, 1 nonresident)........26

Company C, 10th regiment, (2 members, 6 not members, 25 river men)..........33

Unassigned, 10th regiment, (river men)..........................................................7

Company C, 7th regiment, (minors)................................................................2

Company E, 7th regiment, (minors)................................................................4

Company G, 6th regiment, (minors)............................................................... 3

...................................................................................................................514

...................................................................................................................... 4,408

..................................................................................................................... Knox.

Official...........................................................................................................4,588

To be added from rejected polls..........................................................................35

..................................................................................................................... 4,623

To be deducted, rejected by committee:

At Abbey precinct.........................................................................41

Company B, 32d regiment, (minor).................................................1

Company B, 7th regiment, (non-resident)........................................1

Osterhaus’s brigade, company K, 17th regiment, (minors)................12

Osterhaus’s brigade, company K, 17th regiment, (non-residents)......20

Osterhaus’s brigade, company B, 17th regiment, (non-residents).......29

Osterhaus’s brigade, company F, 17th regiment,( non-resident)..........1

Osterhaus’s brigade, company A, 17th regiment, (non-residents)........9

Osterhaus’s brigade, company H, 17th regiment, (non-residents)........2

Osterhaus’s brigade, company D, 12th regiment, (non residents)........3

Osterhaus’s brigade, company C, 12th regiment, (non-residents).......10

Osterhaus’s brigade, company I, 12th regiment, (non-residents).......26

Osterhaus’s brigade, company K, 12th regiment, (non-residents).......11

......................................................................................................*166

......................................................................................................4,457

Plurality for Mr. Knox, 49 votes.

We count thus:

...................................................................................................Blair

Official......................................................................................... 4,741

Added from rejected polls, including 6 minors deducted from company

F, 7th regiment................................................................................187

Total vote for Blair .......................................................................... 4,928

........................................................................................................ Knox

Official ............................................................................................. 4,588

Added from rejected polls .................................................................. 35

.......................................................................................................... 4,623

.......................................................................................................... Difference with the committee.

Deduct from company B, 7th regiment, (non-resident) .............. 1 ..........––

Deduct also from vote in 5th regiment.......................................3..............3

Deduct from Osterhaus’s brigade:

Company K, 17th regiment infantry, (non-residents)..................20............––

Company B. 17th regiment infantry, (non-residents)..................29............––

Company F, 17th regiment infantry, (non-residents)...................3.............2

Company A, 17th regiment infantry, (non-residents)..................10............1

Company I, 17th regiment infantry, (non-residents)....................1.............1

Company II, 17th regiment infantry, (non-residents)...................2.............––

Company I), 12th regiment infantry, non residents)....................46............43

Company C, 12th regiment infantry, (non-residents)...................22............12

Company I, 12th regiment infantry, (non-residents)...................26.............—

Company K, 12th regiment infantry, (non-residents)..................11......Total dif. 62

Total deductions............................. ............................. ........................... 164

Leaving total vote for Knox.............................. ............................. ............. 4,459

Which, deducted from Mr. Blair’s vote, leaves 469 majority for Mr. Blair; or allowing that identity of name proves identity of person, and deducting all the votes from Blair which have any resemblance to those of the paroled prisoners, &c., 70 in number, and still Mr. Blair will have a majority of 399.

NOTE.—If the votes of Newsham, Dambach, and Sachse be added to Blair’s poll, to which we presume the committee will not object, (see our remarks relative to companies B and K, 32d regiment,) this will reduce Knox’s majority to 46. Three of the votes we deduct from Mr. Knox’s poll the committee retain from oversight, to wit: those of Hosle and Waters, of the 5th regiment, and Henry Boone, of company D, 12th regiment. Another vote is gained for Knox in company C, 12th regiment by miscount. This would leave him but 42 majority. If we deduct the 5 non-residents, proved so by their own declarations, to wit: 1 in 5th regiment, 2 in company F, 1 in company A, and 1 in company I, 17th regiment, Knox would have but 37 majority, which would be overcome by allowing the remaining 42 of company D, or the 11 in company C with the 32 “river men,” or the remainder of the 32 rejected from companies B and K, 32d regiment, and C, 10th regiment, because not found on the muster-rolls; or these 62 last named would suffice.

Conclusion.

The contestant fails, therefore, if the House should refuse to sanction the confessedly erroneous procedure of allowing the contestant to make a charge of fraud against the officers of the Abbey precinct at the hearing not made in his notice; or, allowing the charges against the judges, as they are presented by the committee, to be presented nunc pro tunc, if the House adheres to precedents; or, third, if the House decide that the fraud is not proved; or if the House dissents from the ruling of the committee making the muster-rolls evidence of age and membership of companies, and excluding the votes of the “river men;” or if the House rejects the votes which are clearly shown to have been illegally cast by the Osterhaus brigade.

JOHN GANSON.

JAMES S. BROWN.

D. W. VOHERES

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