SPEECH 
 
 - ' \ I 
 
 HON. .JESSE 0. NORTON, 
 
 ON THE 
 
 ILLINOIS CONTESTED ELECTION. 
 
 DELIVERED 
 
 IN THE HOUSE OF REPRESENTATIVES, JULY 17, 1856. 
 
 WASHINGTON: 
 
 PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
 
 1856 ., 
 
5 2V-1 
 
 tJ 53. V s 
 
 } iX> rt ' 
 
 ILLINOIS CONTESTED ELECTION. 
 
 On the Resolutions reported from the Committee of Elec- i: 
 lions in the Contested-Election Case from I llinois. 
 
 Mr. NORTON said: 
 
 Mr. Speaker: I desire to submit a few obser¬ 
 vations on the matter before us; and I will strictly 
 con %>e myself to the facts presented, after refer¬ 
 ring to one or two of the positions assumed by 
 my colleague, [Mr. Ali.en,] who has just taken i 
 his seat, and by the minority of the Committee i 
 of Elections in their report. It was well said by 
 the chairman of the Committee of Elections in 
 his opening remarks, that this case lies within a 
 very narrow compass. It is a question of fact— 
 of fact only. That question is, whether the sit- jj 
 ting member, or the contestant, has received a 
 majority of the votes of the seventh congressional 
 district? The sitting member claims that he 
 received one vote more than the contestant. The 
 contestant claims that he has received two or three 
 votes more than the sitting member. This is the 
 only issue between the parties. 
 
 Before entering upon the consideration of the 
 facts presented, 1 will say a word in reply to cer¬ 
 tain positions assumed by the sitting member. 
 He complains that the evidence hist taken was 1 
 without proper notice given to him. It is ad¬ 
 mitted that the notice was not given strictly 
 within the time required, unless you include the 
 day on which the notice was given. There would 
 then be ten days, otherwise but nine. Under the 
 strict rules of the common law, before a civil 
 tribunal, I admit that the depositions might be ' 
 ruled out, and the party required to take new 
 evidence. But I submit whether this objection is 
 not altogether too trivial and too technical to base 
 upon it the rejection of the contestant’s claim 
 to a scat upon this floor, and of the rights of the 
 majority of the people of that congressional dis¬ 
 trict to his services here? I care not, however, 1 
 so far as the argument which I propose to sub¬ 
 mit to this House is concerned, whether that 
 evidence be considered or not. The contestant 
 can be shown, by the other testimony taken, to 
 be entitled to the seat. I shall confine myself to f 
 testimony to which this objection does not apply. ! 
 
 The other position of my colleague, and of 
 the minority report, to which I would call atten¬ 
 tion, is, that the contestant’s notice of his inten¬ 
 tion to prosecute his claim to a seat is too general 
 in its terms. The notice is as follows: 
 
 “ That the returns made by the returnin'* officers, as offi¬ 
 cially announced, are incorrect, and that the poll books oi 
 the several counties in this district show that I received a 
 majority of the legal votes polled in the said district for the 
 said office, and am entitled to the certificate of election 
 therefrom.” 
 
 It is assumed that this notifte is not sufficient 
 to call the attention of the sitting member to the 
 intended contestof the returns made by the judges 
 and clerks of election. There are two sets of 
 “ returning officers” under the laws of Illinois. 
 The judges and the clerks of elections arc consti¬ 
 tuted one set. It is made their duty by law to 
 make a return of tin 1 votes cast within four days 
 after tin; canvass. When the county clerk receives 
 the returns, it is his duty to make the returns to 
 the Secretary of State. Both these classes of 
 officers, under the law of Illinois, are returning 
 officers. The notice referred to the “ returning 
 officers” in general terms. It embraced both 
 classes. The contestant was therefore at liberty 
 to extend his investigations to both returns, or to 
 confine it to one. Nothing could be clearer than 
 this. This position of my colleague is therefore 
 clearly untenable, besides being wholly technical. 
 
 1 now go to the question, whether or not the 
 contestant or the silting member is entitled to the 
 scat in contest? The majority of the Committee 
 of Elections present the case in the true way- 
 They present two resolutions: one that the sit¬ 
 ting member is not, and the other that the con¬ 
 testant is, entitled to the seat. I might content, 
 myself with reading the certificate of the judges 
 and clerks of election, made in March, 1855, and 
 to which l shall again allude as conclusive of the 
 whole case. 1 prefer to go into the evidence more 
 indetail; and shall mainly rely on the errorsfound 
 in the returns in the Livingston precinct, though 
 I may refer to some other tacts if my time allow. 
 
 I come, then,in the first place, to the question, 
 Was the sitting member [Mr. Allen] elected? 
 
The evidence, as to errors in the returns of Liv¬ 
 ingston precinct alone, shows conclusively, to 
 my mind, that he is not entitled to a seat on this 
 floor. It shows clearly that he was allowed one 
 more vote than he actually received. He was 
 allowed forty-seven votes. The evidence shows 
 that he actually received but forty-six votes. 
 
 In the first place I call attention to the evidence 
 of Mr. Hutchinson, a political friend of the sitting 
 member, [Mr. Allen.J It is as follows: 
 
 “ We counted the ballots in the ballot-box at the close of 
 said election; we then counted the names on the poll-book 
 of said election, and found the number of ballots to agree j 
 with the number of names of voters on the poll-bOok ; there i 
 were one hundred and forty-nine of each ; there appeared ' 
 to be at that count forty-seven for Mr. Allen, and one hun¬ 
 dred for Mr. Archer; the ballots were counted in the school- 
 house, in the town of Livingston, in said county, at the close 
 of said election, after night; and it was supposed that said 
 counting was correct, and one of the tally-papers and one i 
 poll book were accordingly returned to the clerk of the 
 county court on the next day.” 
 
 In response to another interrogatory, Mr. 
 Hutchinson swore that “ three ballots were 
 thrown aside, and counted neither for Mr. Archer 
 nor for Mr. Allen. ” Yet forty-seven votes were 
 given to Mr. Allen arid one hundred to Mr. 
 Archer—one hundred and fifty votes in all, when 
 there were only one hundred and forty-nine names 
 on the poll-book and one hundred and forty-nine 
 votes in the box. 
 
 David Wyrick, another of the judges, also tes¬ 
 tifies as to the count on the night of the election, 
 as follows: 
 
 “ We found, on counting the ballots, that, there were one 
 .hundred and forty-nine, one hundred of which were for W. 
 B. Archer, and forty-seven were for J. C. Alien; there | j 
 were three ballots that, we considered at that time as blank 
 votes for either candidate ; we found on counting the bal¬ 
 lots that they agreed in number with the voters’ names on 
 the poll-books; during the counting of the votes there was 
 a confusion—the tallies did not correspond, when the votes 
 were partly recounted and corrected, as we then supposed.” 
 
 Then, I ask, can any reasonable mind have any 
 question that there was a mistake committed in 
 the Livingston district of, at least, one vote? 
 There were only one hundred and forty-nine 
 voters’ names on the list, and one hundred and j 
 forty-nine ballots in the box; forty-seven votes 
 were allowed to Allen,undone hundred to Archer; j 
 and three were not counted at all—making one 
 hundred and fifty. The other witnesses testify to 
 the same effect. 
 
 The judges and the clerks were all agreed as to 
 the number of votes actually polled, as to the 
 number of voters’ names upon the poll-books, as 
 to the number of votes in the ballot-box, as to the 
 number of votes allowed to each party, and that 
 there were three votes not counted. Let us see, 
 then, in whose favor the error was made. 
 Hutchinson says: 
 
 “At the second counting, there was a correction made of | 
 the tally at the first counting, by which it appeared that the 
 clerks had made a mistake in the tally-list of one vote in 
 favor of Allen, which said vote made one more vote appear 
 than was actually given.” 
 
 Mr. Wyrick says, in Ins testimony: “There 
 had been, on the first count, one more vote tallied 
 for Mr. Allen than he actually received.” 
 
 Mr. Birch, another of the judges, testifies as 
 follows: 
 
 “Mr. Hutchinson, one of the judges, Mr. Hanks, one of 
 the clerks, Samuel It. Brown, who acted as clerk pro tempore \ \ 
 in the absence of Mr. Hollingsliead, an absent clerk, and \ 
 myself, one of the judges, proceeded, at my house in Liv- [1 
 
 ingston, on the 2d March, 1855, to unlock the ballot-box and 
 recount said votes, having sent for Mr. Wyrick, the other 
 judge of said election, who arrived before we were done 
 counting the same ; when we carefully recounted the bal¬ 
 lots, and found one hundred and forty-nine, as before, one 
 hundred and two of which were for W. B. Archer, and 
 forty-six for J. C. Allen. We now found that one more 
 vote was marked for Allen than he received, or appeared 
 on the tickets.” 
 
 But we are asked, how was this mistake made ? 
 That also is settled by the testimony, which I 
 will read. Mr. Hollingshead says: 
 
 “ The' ballots, after the polls were closed, were taken out 
 and counted, and the lists of the voters’ names were each 
 found to be one hundred and forty-nine. In counting out 
 the votes, E. M. Hanks, one of the clerks, had one more 
 vote for Mr. Allen than I had, and I had one vote more for 
 Mr. Archer than he had. I told Mr. Hanks I did not hear 
 him call some time back, and told him I thought the mis¬ 
 take occurred about five tickets back. The judges ordered 
 us to compare five tickets back, which we did, and then we 
 supposed he was l ight in the count, when I marked o f one 
 vote from my tally-paper for W. B. Archer, and he left his 
 stand for Mr. Allen; there were one hundred and forty- 
 nine votes polled at sr^id election, one hundred of which 
 were counted for W. B. Archer, and forty-seven for J. C. 
 Allen; and that the same was so certified by us, sealed up, 
 and given into the bands of one of the judges.” 
 
 The testimony of Mr. Hanks is to the same 
 effect. 
 
 Now, then, here is the point at which the error 
 occurred. There was confusion at the end of 
 the canvass, and they concluded that it occurred 
 during the counting of the last five ballots, and 
 they went back five ballots. They erred in not 
 going back far enough. It appears that o* the 
 second count on the second of March, there were 
 actually found in the ballot box but forty-six votes 
 for Allen, while at the first count he was allowed 
 forty-seven. Taking this one vote from Allen, 
 the tally-list, the names on the poll-books, and 
 the votes in the ballot-box, all agree—being one 
 hundred and forty-nine. 
 
 I say, then, that it has been clearly shown that 
 there was one too many votes counted upon the 
 first count. It has been shown, again, that during 
 that count there was one vote scratched off the 
 list which had been allowed to Archer, and one 
 left on for Allen, about which the dispute arose; 
 and that on a recount on the second of March, 
 the ballot-box was found to contain only forty - 
 six votes for Allen. Now, I appeal to the com¬ 
 mon sense of gentlemen—1 put it to the justice 
 of this House, and to its candor, to say whether 
 it is not manifest that there was a mistake made; 
 that it was made in favor of Allen, and that he 
 was allowed one more vote than he actually 
 received ? 
 
 Now, let me ask gentlemen what would be the 
 effect, if that alone were true, on the decision of 
 this House as to this contested case? If it be true 
 that one more vote was allowed to Mr. Allen than 
 was given to him, what is the inevitable result ? 
 You may say it is a small matter—but a single 
 vote; but if Mr. Allen was elected by that one 
 vote, he is as much entitled to his seat on this 
 floor, and his constituents are as much entitled 
 to his services, as if he were elected by a majority 
 of one hundred, or one thousand. And, on the 
 contrary, if he has been defeated for the lack of a 
 single ballot, that one ballot becomes as import¬ 
 ant as if he were defeated by one hundred or one 
 thousand votes. 
 
 But, I repeat, if it be true that Mr. Allen was 
 allowed one vote more than he had received, what 
 
5 
 
 % 
 
 % 
 
 would be the effect? Why, it would make a tie; 
 and as far as Mr. Allen is concerned, he would be 
 no more entitled to a seat on this floor than he 
 would be had he not received a single vote at that 
 election. I undertake to say, without going further 
 into the testimony on that head, that, according 
 to the evidence of all the judges, of all the clerks, 
 given without contradiction, without conflict, 
 unhesitatingly, whatever may be the case with 
 regard to Mr. Archer, Mr. Allen is not entitled 
 to a seat on this floor. From this conclusion 
 there is no possible escape. 
 
 But the question may be asked, and has been 
 asked, why, if this error was committed, it was 
 not corrected at the time before the judges sent i 
 up the returns to the county clerk, or before the ; 
 county clerk sent them to the Secretary of State? 
 Well, sir, two of the witnesses have answered 
 hat question, and I will read their testimony. 
 
 The question was put to Mr. Wyrick, anil his 
 answer is: 
 
 “ We thought we had corrected it, and did not know that 
 any error existed at that time, nor until the 2d day of March, 
 1355, when we supposed that the error was in giving Mr. 
 Allen one more vote than lie was entitled to.” 
 
 Mr. Hutchinson, in answer to the same ques¬ 
 tion, says: 
 
 “ The mistake was not discovered at that time.” 
 
 You may say, how was it possible that it should 
 not be discovered? Why, it arose simply from 
 the fact of the hurry of the count on election : 
 night. They *did not stop to hunt up and see 
 whether the aggregate number of votes allowed 
 the parties, and those disallowed, corresponded 
 with those found in the ballot-box. 
 
 Mr. Birch makes a similar statement. He says 
 he thought the first vote was correct. He did not 
 know any error at that time, nor till the 2d of 
 March, 1855. 
 
 Mr. Flanks says: 
 
 “The judges and clerks did not discover that, by giving 
 Archer one hundred votes, and Allen forty seven, when 
 counted together with the three votes which were thrown 
 out and not counted for either, the total vote ea.-t. or ballots [ 
 in the box, would be one hundred and fifty, or one more 
 than the number of ballots counted out.” 
 
 I come now, Mr. Speaker—having, I think, j 
 sufficiently shown that Mr. Allen is not entitled 
 to his seat—to another branch of the inquiry; 
 which is, whether the contestant is entitled to a 
 seat on this floor? I will read to the House the 
 certificate of the judges and clerks on their second 
 count; and, as 1 said in the outset, it seems to 
 me to be conclusive of this whole case, even in¬ 
 dependent of the evidence to which 1 have alluded 
 in my preceding remarks, and the argument 
 which I endeavored to base upon it. And be it 
 remembered, that three out of these five men 
 who made this certificate, were the political friends 
 of my colleague, the sitting member—men who, 
 by no possibility, could be induced to do injustice 
 to him; so that it cannot be said that they were 
 induced to reverse their decision on any other 
 grounds than of justice, of equity, and of truth: 
 State of Illinois, Clark county: 
 
 VVe, the undersigned, judges and clerk of the general | 
 election in said county of Clark, and of Livingston pre¬ 
 cinct, east of Mar-hall, on the 7th day of November last 
 past, 1854, do hereby certify, that, on a review and count 
 |>f the ballots this day made with care and to our satisfac- | 
 non—the ballots being on the said 7th of November put 
 into a box, locked and kept in the hands of one of the \ 
 judges, to wit: II. 11. Hutchinson, as required by law—in }j 
 
 • the return made to the clerk of the county court, we gave 
 ' a certificate that William B. Archer had one hundred 
 votes, and that James C. Allen had forty-seven votes, the 
 j said Archer and Allen being the only candidates running to 
 represent the seventh congressional district in said I8tat3 
 of Illinois in the Congress of the United States ; that we 
 | find an error was made in said count and return ; and that 
 ! it clearly appears that at said election said Archer truly 
 ; received one hundred and two votes, and said Allen got 
 forty-six votes, which error we now correct under our 
 oaths, taken as judges and clerk, (the other clerk, Mr. 
 IlollingShead, not being present this day,) one hundred and 
 two (102) to said Archer, and forty-six (4G) to James C. 
 Allen. All of which we hereby certify under our oaths 
 taken, and our hands and seals. 
 
 HENRY H. HUTCHINSON, [l. s.] 
 
 DAVID WYRICK, [l. s.] 
 
 J.J. BIRCH, [l. s.] 
 
 ELZA M. HANKS, Clerk . [l. s.] 
 
 i March 2,1855. 
 
 Now, then, I ask you whether, in the absence 
 of all other testimony on the part of the contestant, 
 this statement of the judges—men whose minds 
 i could not be biased by any political considera¬ 
 tions in favor of the contestant, or against the 
 sitting member—would not of itself be conclu- 
 sive ? Mr. Allen only claims that he was elected 
 by a majority of one. This certificate from the 
 judges of the Livingston precinct shows that one 
 vote was improperly counted for Mr. Allen, and 
 two refused to Mr. Archer, to which he was 
 justly entitled, giving to Mr. Archer, on a careful 
 recount, in that precinct, one hundred and two 
 votes, and to Mr. Allen forty-six votes only. 
 That would give Mr. Archer a majority of two 
 in the second district of the State of Illinois, and 
 entitle him as clearly to a seat on this floor as 
 I though he had a hundred, or one thousand ma¬ 
 jority. 
 
 But, sir, it is said by my colleague [ r. 
 
 I Allen] that these were not judges’ at the time of 
 making this certificate, though they were form¬ 
 erly judges; that they were thus acting without 
 authority; that their terms had expired; that 
 they, and the clerks of election, wer e fundi officio, 
 and that they had no authority to act further in 
 reference to that election. Now, that depends 
 on circumstances. It depends on the law of 
 Illinois. The election act (Rev .Stat., p. 215) pro¬ 
 vides as follows: 
 
 “Sec. 8. The county commissioners’ courts shall, re¬ 
 spectively, at the last stated term preceding any election, 
 appoint three capable and discreet persons, possessing the 
 qualifications of electors, to act as judges of elections in 
 each election precinct. 
 
 “Sec - . 9. 'Die said judges of the election shall choose 
 two persons having similar qualifications with themselves, 
 to act as clerks of election. The said judges of tiie elec¬ 
 tion shall be and continue judges of all elections of civil 
 officers to be held within their precinct, until other judges 
 shall be appointed, as hereinbefore directed, and the said 
 clerks may continue to act as such during the pleasure of 
 the judges of election.” 
 
 Now, sir, I undertake to say, that you might as 
 well assume that, when this Congress adjourns, 
 you have vacated your office ns Speaker of this 
 blouse; you might as well say that, when the 
 Supreme Court adjourns its session, the judges 
 are fundi officio, as to say that the judges of 
 election were out of office when the day of elec¬ 
 tion had passed. Aqd you might as well declare 
 that the Clerk of this House has lost his office, 
 and that the office is vacant when the House ad¬ 
 journs, as to say that these clerks of the election 
 lost their olficcs when the election was over. The 
 law of Illinois, just cited, provides that the judges 
 
6 
 
 of election shall remain judges, and that the clerks 
 shall remain clerks, until their successors are 
 appointed and qualified. The judges of elections 
 are appointed by the county courts prior to the 
 elections, and the clerks are appointed by the 
 judges of elections, and both hold their places until 
 their successors are installed into office. There 
 is no pretense that other judges or clerks had 
 been appointed. 
 
 Now, then, I ask you, Mr. Speaker—I ask this 
 House, what becomes of the statement of the 
 sitting member, that these judges and these clerks 
 were irresponsible men, acting without oath and 
 without authority? Clearly, sir, by the provis¬ 
 ions of the Illinois statutes, from which I have 
 read, they were, at the time these supplemental 
 returns were made out, really and legally judges 
 and clerks of elections. That point, it seems to 
 me, is beyond controversy. 
 
 The sitting member has suggested to the House 
 that these judges may have been temporarily 
 appointed on the day of the election. But, sir, it is 
 a sufficient reply to this to say that the presump¬ 
 tion of law is, that those were judges regularly 
 appointed, unless the contrary is shown. It is 
 manifest, then, sir, that those men were acting 
 under their oaths of office, that these votes were 
 carefully recounted, arid that from that recount it 
 appeared that in the original returns one too many 
 votes were allowed to the sitting member, and 
 that two too few were allowed to the contestant. 
 If that be so, there is, then, an end of the whole 
 controversy, and the contestant was elected by a 
 majority of two votes. 
 
 But the contestant has not contented himself 
 with producing this certificate and the amended 
 returns of the judges and clerks, so clear and con¬ 
 clusive in their character, but he has, after due 
 notice to the sitting member, taken the depositions 
 of the judgesand clerks of the elections, and, under 
 oath, they have testified to the correctness of 
 these supplemental returns. I read from the tes¬ 
 timony of those judges. Mr. Hutchinson says: 
 
 “ The ballot-box was taken by myself on the 2d day of 
 March, 1855, as one of the judges, to the house of Johnson 
 J. Birch, another of the judges ; and in the presence of E. 
 M. Hanks, one of the clerks, and Samuel It. Brown, who, 
 in the absence of Mr. Hollingshead, the other clerk, was 
 appointed a clerk pro tempore, and by their assistance the 
 box was unlocked and the ballots recounted; and at the 
 conclusion of the counting Mr. Wyrick, the other judge, 
 was sent for and came in and assisted us. There was at the 
 aforesaid time a careful examination had and recount of the 
 ballots, and one hundred and forty nine ballots were found 
 in the box, which number corresponded with the number 
 of names on the poll books, and on that counting we found 
 one hundred and two ballots for William B. Archer, and 
 forty-six for Mr. James C. Allen ; and on that counting two 
 of three ballots which were at firi-t thrown aside were 
 counted for William B. Archer, and the other ballot was 
 not counted for either Mr. Archer or Mr. Allen, for the rea¬ 
 son that both the names of J. C. Allen and William B. 
 Archer were stricken therefrom.” 
 
 Mr. Birch says: 
 
 “Mr. Hutchinson, one of the judges, Mr. Hanks, one of 
 the clerks, Samuel It. Brown, who acted as clerk pro tem¬ 
 pore in the absence of Mr. Uollingshead, an absent clerk, 
 and myself, one of the judges, proceeded, at my house in 
 Livingston, on flic 2d March, 1855, to unlock the ballot box 
 and recount said votes, bavins sent for Mr. Wyrick, the 
 otiier judge of said election, who arrived before we were 
 done counting the same; when we carefully recounted the 
 ballots, and found one hundred and forty-nine, as before, 
 one hundred and two of which were for YV. B. Archer, and 
 forty-six for J. C. Allen. We now found that one more 
 vote was marked for Allen than he received, or appeared on 
 
 the tickets. There were, on the recounting, two votes that 
 were not counted for either at the first count, tiiat were 
 now counted for W. B. Archer, and one that was not 
 counted for either candidate at either the counting or re¬ 
 counting, by reason of the names of both Archer and Allen 
 being scratched oft'; which said ballots are the same that 
 are now attached to the deposition of H. H. Hutchinson, 
 when we made a corrected return, and sent the same to tbs 
 county clerk on the 9th March, 1855.” 
 
 Mr. Wyrick says: 
 
 “ When [ arrived at the house of Mr. Birch, they had 
 finished the counting except three disputed tickets, being 
 the same that were thrown aside at the first counting, one 
 of which was thrown aside as on the first counting, having 
 the names of both candidates scratched off; the other two, 
 after a careful examination, were given to W. B. Areher, 
 making one hundred and two votes for W. B. Archer, and 
 for J. C. Allen, forty-six, there having been, on the first 
 count, one vote more tallied for J. C. Allen than he actually 
 received.” 
 
 The testimony of Hollingshead and Hanks is 
 to the same effect, and I will not take up the time 
 by reading it. 
 
 But still another count was made. And be it 
 remembered that these counts were all made be¬ 
 fore the Governor had issued his certificate to 
 any member of this Congress from Illinois. The 
 third count occurred on the 14th of April. What 
 was the result of it? 
 
 Mr. Birch says: 
 
 “And when we had made out said return, [the amended 
 return of March 2,1855,] we put the ballots hack in the box, 
 and locked it up. I . took and kept the box, and Mr. Hutch¬ 
 inson kept the key. The box remained, in my possession 
 until the May election, 1855, when Mr. Hutchinson and 
 myself opened It and took out the ballots, and wrapped 
 them up carefully in a paper, and tied them with a string, 
 until the box was returned the next day, when they were 
 again put into it, and the box locked up, and there remained 
 until all the judges and clerks were present, on yesterday, 
 when the box was again opened and the votes recounted, 
 with tlie same result as on the second counting, and I am 
 confident that the ballots have not been altered since they 
 were voted at the election.” 
 
 Mr. Speaker, I give the testimony on this 
 point in full, and in the very language of the wit¬ 
 ness, in order to do away with the impression 
 sought to he made by the speech of my colleague, 
 that there was some hocus pocus in regard to these 
 recounts. The testimony cannot be mistaken; 
 and, if gentlemen consider it dispassionately, 
 there will he little doubt as to what determination 
 they will make of this case. 
 
 Mr. Hutchinson testifies that, after the count 
 on the 2d March, 1855: 
 
 “ The ballots and poll-book were carefully gathered up, 
 put in the ballot-box, locked up, and delivered into the pos¬ 
 session of Johnson J. Birch, and I retained the key myself. 
 They were again on this day (April 14, 1856) examined by 
 myself, David Wyrick, and Johnson J. Birch, the judges, 
 and Mr. Elza M. Hanks and James Hollingshead, the clerks 
 of said election ; and at said examination there were found 
 one hundred and forty-nine ballots in the box, and one 
 hundred and two of them were for William B. Archer, and 
 forty-six for Mr. Allen.” 
 
 Mr. Wyrick says: 
 
 “On the 14th April, 1856, Mr. H. II. Hutchinson, J. J. 
 Birch, and myself, as judges, and James Hollingshead and 
 E. M. Hanks, the clerks of said election, again proceeded 
 to meet at the court-house in said county, to recount the 
 votes aforesaid, with the same result., after a careful exam¬ 
 ination, as on the 2d of March, A. D. 1855.” 
 
 Mr. Hollingshead testifies to the same facts. 
 So does Mr. Hanks. • 
 
 Now, sir, what can he said, I ask, in regard 
 to this accumulation of testimony, in no way 
 
7 
 
 conflicting, clear, decisive, and to the point? It 
 settles, beyond cavil or doubt, the fact, that the 
 contestant is entitled to two more votes than he 
 was allowed in the first returns of the Livingston 
 precinct, and that he has, at least, a majority of 
 two .votes in the district. But, sir, it is argued 
 #her£ by my colleague, [Mr. Allen,] that these 
 ballots may not be the same, that there was no 
 law in regard to their being kept, and that the 
 boxes may have been opened. Sir, the question 
 isfcribt whether there was any law in regard to 
 the manner in which the ballots should be kept, 
 or even any law requiring them to be kept at all; 
 or whether this ballot-box was kept in legal cus- 
 tjxly? but the question for the House to decide 
 • is, were those ballots kept ? Were tlfey truly 
 4 kept—kept safely? or, in other words, are they 
 
 the same ballot!*which were cast at the election? 
 
 Now what is the testimony upon that point? 
 I have read, in discussing another point, the tes¬ 
 timony of several witnesses, bringing out inci¬ 
 dentally some facts in regard to the keeping of 
 the ballot-boxes and the ballots. Listen to the 
 evidence. This is what Mr. Birch says about it: 
 
 “ Question second. At the conclusion of the first counting 
 did you, in pursuance of the sixteenth section of the act of 
 1849, in relation to elections, proceed to place the poll list 
 in die ballot-box, lock the same up, and put the seal of one 
 or more of the judges of said election thereon, so as en¬ 
 tirely to cover the opening in the lid or top of said box, and 
 deliver the key to one of said judges, and the box to another ? 
 and if so, state whether the judge in whose possession the 
 box was placed had any means of opening the same without 
 force r 
 
 “ Answer. I did ; and placed also in the box, at the same 
 time, the ballots, and a copy of the certificate and tally- 
 paper; that the fastening on the under side of the lid was 
 adjusted, and the box then locked ; and when so fixed, 
 nothing can get into or out of the box without force, unless 
 the box should first be unlocked. Mr. Hutchinson, the 
 judge into whose possession the box was delivered, had no 
 means, to my knowledge, of getting into the box, but after¬ 
 wards obtained a key, with which he could unlock it, as he 
 states. I believe the ballots have been caref ully kept, and 
 that they were the same voted at the election.” 
 
 Mr. Hutchinson says: 
 
 “ Question fourth by Mr. Archer. State what was done 
 with the ballots after they were counted, and in whose pos¬ 
 session they were placed? 
 
 “ Answer. The ballots were placed in the ballot-box, and 
 locked up, and the box put in my possession, and not 
 opened, to the best of my knowledge, until the 2d day of 
 March, 1855; I kept the box carefully until the 2d of 51 arch, 
 1855.” 
 
 Mr. Wyrick says: 
 
 “The ballots, one poll book, and one tally-paper, were 
 put in the ballot box, and then the box was locked up, 
 which Mr. Hutchinson took home with him.” 
 
 Another witness states that the opening of the 
 box, through which the ballots were received, was 
 also fastened, so that nothing could be either nut 
 into, or taken out of, the box, unless the lid 
 of the box was forced; or, in other words, that 
 precisely the same steps were taken in regard to 
 the ballot-box, which the law requires shall be 
 taken at any temporary adjournment during the 
 day. The gentleman behind me denies my state- 
 nfcnt, and suggests that the laws of the State 
 require one man to keep the ballot-box, and an- 
 
 %rUj^:l%nan the key, during a temporary adjourn- 
 '•WtJJt on the day of election. What I stated is 
 'frtie^nd that is precisely what was done in this 
 cas* One man did keep the box, a,nd another 
 «W?ifckey. 
 
 * Mr. STEPHENS. The evidence is, that the 
 
 key was lost. There is no evidence that the indi¬ 
 vidual who took the key, kept it. The evidence 
 shows that there are two keys which unlocked 
 the box. 
 
 Mr. NORTON. Yes, sir, Mr. Hutchinson kept 
 the box, and Mr. Birch kept the key. That key 
 was lost; and no other key has ever been heard 
 of which would unlock the box, except the one 
 procured by Mr. Hutchinson on the 2d of March, 
 when the box was opened for a recount. 
 
 Now, let me ask the gentleman from Georgia, 
 what other or greater precautions could have 
 been taken for the safe-keeping of the ballots? 
 What pretense can there be that they were not 
 so kept? What chance there could be for the vio¬ 
 lation of the ballot-box by anybody, without the 
 knowledge of Hutchinson? What ground of 
 suspicion, even, that any one else had a key with 
 which the box could be opened? I put it to him 
 as a lawyer to say whether the presumptions are 
 not all the other way ? 
 
 Mr. STEPHENS. That comes directly to a 
 material point, and I answer the gentleman with 
 pleasure. The key might have been stolen by 
 some person entirely unknown to the officers. 
 The fact is, that it was lost, and has never been 
 found; and there is a possibility that somebody 
 might have got into the box with it. The testi¬ 
 mony does not exclude the possibility. 
 
 Mr. NORTON. Yes, sir; it says that the key 
 was lost. There is no pretense that it was ever 
 found, or that it was ever in the possession of 
 any one afterwards. 
 
 Mr. STEPHENS. It only says that it went 
 out of the possession of one of the judges of the 
 election, and he does not know where it went. 
 That is the only testimony that it was lost. He 
 put it away and somebody got it—he does not 
 know who. 
 
 Mr. NORTON. There is not a particle of 
 testimony to show that anybody ever got it. 
 The evidence is unequivocal, not that anybody 
 got it, but that it was lost. Possibility ! possi¬ 
 bility ! Why, sir, possibilities like this would 
 not serve to save men from the gallows if on trial 
 for murder. I put it to the common sense of this 
 Blouse, if, upon a charge of larceny or forgery, 
 or of passing counterfeit money, a possibility no 
 stronger than this would acquit a man ? Never, 
 sir, never. There is not one case in fifty where 
 stronger proof of the safe-keeping, or the iden¬ 
 tity of the coin or bills upon which a criminal 
 charge is predicated, is produced in a court of 
 justice, than is brought forward in this case. 
 
 Mr. STEPBIENS. I stand distinctly upon a 
 point of law. The law says the box shall be put 
 in the hands of one of the judges, and the key in 
 the hands of the other. That is a requisition of 
 law. The testimony is, that the key went into 
 the hands of one of the judges, who swears that 
 it was lost. When the key was lost, might not 
 somebody have got it? Is the requirement of the 
 law answered? Is there not a possibility that 
 somebody got it? The object of the law was, 
 that there should be no possibility, by one hold¬ 
 ing the box, and another the key. 1 say, sir, 
 that the testimony is, that the key was lost; and 
 when that is established, the possibility is that 
 somebody might have got it. And that is the 
 argument. 
 
 Mr. NORTON. The gentleman argues that 
 
 
8 
 
 the provision of the election law governing the 
 disposition of the box and the key, on the day of 
 the election, should be carried out strictly in a 
 case, like this. Now, I ask you, suppose, on 
 election day, for which alone this law was en¬ 
 acted, that the box should be placed in the hands 
 of one of the judges, and the key in the hands of 
 another, and by any accident that key should be 
 lost by the man in possession, while going from 
 the place of election to his dinner: will any one 
 here contend that on that account the ballots in 
 the box should be rejected, and the election set 
 aside? Suppose he were robbed, or drowned, 
 . or should abscond: must the ballots be rejected? 
 The gentleman says, “ the box should be placed 
 in the hands of one, and the key in the hands of 
 another.” Very well; precisely that was done. 
 The box went into the hands of Mr. Hutchinson, 
 and the key into the hands of Mr. Birch. 
 
 But, sir, I need not spend time upon this. The 
 proof is clear and conclusive that the ballots were 
 safely kept. But, besides all this, the evidence 
 of all the judges and clerks is, that the disputed 
 ballots were recognized and identified on the second 
 count —recognized and identified as the same bal¬ 
 lots had under consideration on the night of elec¬ 
 tion. 
 
 But my colleague [Mr. Allen] asks, “How is it 
 that these judges could examine these ballots so 
 much more accurately four months after the trans¬ 
 action, and in the night time, than they could on 
 the day of election, under the light of the noon¬ 
 day sun?” My colleague must have forgotten: 
 the proof is, that the first count was in the night 
 time, whilst the second and third were by day¬ 
 light ! 
 
 My colleague complains of the loss of 0 the two 
 ballots since they reached here. Sir, the* con¬ 
 testant laments it too. He was at great pains to 
 bring them here, and has endeavored to have 
 them found, but in vain. 
 
 My colleague inquires how Mr. Archer could 
 have learned that there was a mistake in Living¬ 
 ston precinct? There was no difficulty in that. 
 A bare comparison of the poll-book with the tally- 
 list on file in the clerk’s office would show that, 
 to any one who also understood that three votes 
 had been rejected. 
 
 My colleague complains that he had no notice 
 of the recount. It was not necessary that he should 
 have. He had notice of the taking of depositions, 
 when the result of the recount was proved, and 
 he was present by his attorney. 
 
 A few words now, Mr. Speaker, as to the ille¬ 
 gal votes, of which much has been said, and I 
 have done. 
 
 I concede that nothing has been shown by the 
 contestant in regard to Towel’s vote. 
 
 In regard to James Cowden,I am satisfied that 
 he was not a legal voter; and that he did vote for 
 Allen. It is true, that part of the testimony is 
 hearsay; but he could not be compelled to testify; 
 his evidence would criminate himself. The poll- 
 
 books show that he voted. It is sufficiently proved 
 that he was under age. He stated again and again 
 that he voted for Allen—stated so when it was 
 against his interest. It is also proved, and it is a 
 part of the res gesta, that he was actively engaged 
 in electioneering for Allen by Mr. Ruckur,*vho 
 swears that “the whole £owden family, ffom^ 
 Genesis to Revelations, electioneered for Mr. 
 
 Allen—I mean the male portion of them.” 
 
 Joseph Lowry swears that he voted for Archer. 
 
 My colleague contends that his vote shoulJ fee 
 rejected, on the ground that he had not been a 
 resident of the State for a year previous to the 1 
 election. It would be a sufficient reply to this to 
 say that Jdie only evidence' on this point is th < ?«* 
 taken in April, 1855, and which my colleague • 
 earnestly contends should not be allowed for # 
 want of notice to him. This objection goes to the 
 whole evidence, if to any of it. But I submit 
 that the sitting member has not shown Lowry to 
 have been anon-resident. Lowry says: “ I was 
 in the State of Illinois in the fall of 1852, and 
 stayed some three or four weeks, and left two 
 shirts, and never returned until the 6th of March, 
 
 1854.” The question of residence is peculiarly 
 one of intention. It may be obtained as well in 
 four weeks as four years. If a party settles in a 
 place with the intention of remaining, he gains 
 a residence at once. That a party leaving the 
 State with the intention of returning, does not lose 
 his residence, is too clear a proposition to need 
 any argument to sustain it. That Lowry left 
 with the intention of returning is manifest, and 
 that he actually returned eight months before the 
 election is clearly proved. I submit, then, that 
 his place of residence was in no way affected by 
 his temporary absence. He is to be regarded as 
 a resident of the State from the fall of 1852. In¬ 
 numerable cases have occurred in Illinois, where 
 parties have thus left the State for California, 
 or other places, and on their return have been 
 allowed to vote without question. 1 submit, then, ' 
 that, even assuming the deposition in this case to 
 be of any validity, it wholly fails to show that 
 Lowry was not a legal voter. ^ 
 
 Mr. Speaker, how stands the case now? If 
 you reject both the votes of Lowry and Cowden, 
 then the case is left precisely where it was after 
 the correction of errors in Livingston precinct— 
 being two majority for Archer. If you reject the 
 vote of Lowry alone, which I think you cannot 
 do, then Archer is elected by one majority. If 
 you reject the vote of Cowden alone, then Archer 
 is elected by three majority. 
 
 In any view, Mr. Speaker, which I have been 
 able to take of this case, the contestant is clearly 
 entitled to his seat. To this conclusion my mind 
 has been irresistibly forced by a careful con¬ 
 sideration of the evidence. I have no appeals to ^ 
 
 make to this House, and least of all, on a question 
 like this, any partisan appeal. I only ask this 
 House to do that which shall be in accordance 
 with truth, justice, and right. 
 
 
 
 *