missions, or authorized his private secretary to do so, to such persons as had been chosen or seemed to have been chosen in that county for the several offices. His connexion with the affairs of the county wholly ceased on the 26th day of July. Whether the selection referred to was through the ballot-box--whether it was regular or irregular under the law, is not made to appear; and the papers printed on pages 94 and 95 cannot be introduced in connexion with the matter, as they come from no authentic source--are, at most, private, extrajudicial, and unauthorized and were never offered in evidence, either upon notice or otherwise, before any examining officer, and by their date do not purport to have been called for, even, until fourteen days after the testimony had closed. (See objection to 34th interrogatory, p. 67.) After the 26th of July until the 11th of October, when the election was held, seventy-seven days elapsed, a space of time within which, if the county was not already organized, a perfect and complete organization could be effected. Now, the presumptions of law are in favor of regularity, and I hope it will not be asking too much when I claim the advantages of the rule in my behalf. Governor Black states what he did in the early part of the season to meet an emergency, (see question 26, page 66, also question 42,) but he does not, pretend to state or know all that was done; and until it is shown affirmatively, in support of the affirmative allegation of the fact, that the county was not duly organized, the point is not before us for consideration. How easy, and how legitimate, would it have been to ask Governor Black to produce the returns from Buffalo county for identification, and then call on the clerk of that county, who was notoriously within reach of the process placed at the disposal of parties by the act of 1851, to know if they were the same transmitted by him, and if so, to learn of him by what authority he transmitted them, and to what power he was indebted for his official creation. This would have been seeking information at its legitimate source. But the proof in this instance, as in most others, seems strangely intended to establish only a negation, and leave a wide margin to be traversed by conjecture and suspicion. The second point relates to the division of Buffalo county into precincts, including Fort Kearny precinct, and the number of votes cast in each. |
Now, I undertake to say that there is not a word of testimony relating, proximately or remotely, to one of these points, which would not, if insisted on by a reputable lawyer, before a tribunal of reputable lawyers, degrade the professional standing of the one, and insult the official dignity of the other. The only proof is that of Wattles, who details the second-hand statements of certain individuals, themselves, of course, competent witnesses. And I am happy to be able to call to the mind of the committee the disclaimer of the exceedingly able gentleman who opened this case, to have the similar testimony of the clerk of Platte county regarded as evidence by the committee. Is Kearny precinct attached to Buffalo county? By whom is it proved? In making the returns from Buffalo county, was the vote of Kearny City embraced in it? What witness says so? Is Buffalo county divided into precincts at all? Where is the testimony? The only evidence, save that contained in the abstract on page 98, whose merits I have discussed, that Buffalo county ever cast a vote or sent a return to the governor, is found on page 55, in Wattles' answers to questions 12, 13, and 14. He states, in answer to three very leading questions, in substance, that he went to Fort Kearny for the poll-books, saw George Miller, whose name appears on the papers as clerk, sign the same, and helped him copy the list, and produces exhibits E, F, G. Now, who is George Miller? Is he the clerk? His own affix is the sole evidence of it. If he is the custodian of these lists, must he not come forward and swear to them? Or, if they are claimed to be official, must they not have the authentication of the seal? (See Blair vs. Barrett, 16, 17.) The answers of Wattles to cross-questions 36, 37, 38, 39, and 40, on page 58, and also in his re-examination on page 59, forbid the idea that it was intended as a record, or anything else than a private memorandum, upon which he says he made a variety of annotations, and can they be official if Buffalo is not organized? and is it not yielding the question of regularity of organization to claim this certificate as official? And if they are official or otherwise, are they the identical returns received and reckoned in by the board of canvassers? and what evidence is afforded by them of the location or limits of any particular precinct in which they purport to have been cast? A true solution of these questions would |
leave very little of this case, so far as the testimony of Wattles is concerned; but it was said by the able counsel for the contestant that one deposition on page 3, that of Comly, relating to Buffalo county, was a little out of place. He had reference to its position in the printed. volume. I agree that it is not only out of place where it is found, but it would be equally out of place whatever page of that volume it might occupy. Section three of the act of 1851 provides that the officer authorized to issue subpoenas "shall reside within the congressional district in which such contested election was held." The officer before whom this deposition was taken resides in Dayton, Ohio, where the notice required the parties to attend, and whence this paper seems to have been sent to this House. Section six provides that the notice shall contain a statement of the place of residence of the witness. By reference to the notice on page two, it will be found that this requirement has been wholly disregarded. Section six also provides that the party "shall, at least ten days before the day appointed for the examination of the witnesses, give notice in writing," &c. This notice was served on the evening of the 6th of February, to be taken on the 16th of the same mouth. The objection here is, first, the notice was not given at least ten days before the day appointed for the examination of the witness; second, the testimony taken on the 16th was beyond the time limited by law. As to the first point, the rule of law is, that where ten days' notice is to be given, one day is to be reckoned inclusive, and the other exclusive. But where, as in this case, notice is to be given ten days either before or after the happening of a particular event, then ten entire days must intervene, and both extremes be reckoned exclusive.--(Sec. 3, Deneo [See 3 Denio], 12; 1 Texas, 107; 1 Iowa, Green's, 164, 492; 10 vol. U. S. Dig., 406, sec. 7.) As to the second point, the sixty days within which testimony must be taken would expire on the 14th day of the mouth at furthest, and this testimony was taken on the 16th. It is proper to add that there was no appearance on my part, and the deposition was taken under protest. But let us, for the argument, admit this testimony, and also that of Wattles, and how do they harmonize? The young man, Combes [Comly], saw a variety of sad sights at a place |
which he calls "Fort Kearny;" and among them he saw three returned "Pike's Peakers," named James Low,:Stephen C. Inslee, and William Karlew, all vote for Experience Estabrook. This case now, for the first time, presents a point of analogy with other cases where fraudulent votes are complained of. We have found the polls open and men voting; and among them three, whose names are mentioned, who are not legal voters, and who voted for a particular candidate. Let the aggregate, therefore, be diminished the number of votes thus fraudulently cast. For this purpose we turn to the list exhibited by Wattles, marked "C", purporting to be the Kearny City poll-books, in order to expurgate the offending names. After a thorough search, however, it is ascertained that no such names are to be found in the whole list. A novelist once introduced a liar as one of his characters. To mitigate the public scorn of such a character, however, he found it necessary to invest him with unusual attributes. He said it required no skill to tell the truth, any one could do it; but a liar should be a genius, a man of high mental attainments. There is a philosophy in this which I commend to all who attempt to make the testimony of Comly harmonize with that of Wattles. "False in one, false in all," is the translation of a Latin law maxim, and if Comly made a mistake as to the three names, might he not as to the balance. So, if Comly is truthful, then is Wattles false. Another point is presented by the testimony of these two witnesses worthy of attention. Comly's statements relate to a place called "Fort Kearny." It was suggested by the contestant, in response to this palpable contradiction, that "James L. Long," No. 26, was intended for James Low, and that at No. 28, "J. L. Ensley," was intended for Stephen L. Inslee, and this, too, without adducing any proof to establish the proposition. As the maintenance of this contest depends so almost entirely upon inference and presumption, and requires the invention of the wholesome rule that all inferences and presumptions are in favor of regularity and integrity, it may not be unreasonable to demand that "Low" shall be interpreted "Long," and "J. L. Ensley" "Stephen L. Inslee." Constructions quite as absurd are demanded; why not this? The second interrogatory to Wattles, and the. answer |
thereto, reveal the fact that Kearny City, or Dobytown, is another and distinct place. If the testimony of Wattles and his exhibit "G" prove anything, they establish the fact that the election to which that testimony relates was held at some place called Kearny City, a precinct in Buffalo county, without, to be sure, identifying any particular spot of earth bearing that cognomen; while the election to which Comly refers was at another place, and bearing another name. Shall the House be asked to reverse the doctrine of presumptions, and infer some impropriety or irregularity fatal to my certificate, when none is shown? Wherever may be the location of the "Kearny City" visited by Wattles, and whatever may have been done there, it is nevertheless true that his "Kearny City" is not the only one; for the history of Nebraska would show that, in the nomenclature of the numerous cities of that Territory heretofore, this name had been a favorite. One of the most flourishing cities on the Missouri, now merged in Nebraska City, was incorporated by the legislature, and entered at the land office by that name. And other cities bearing that name, as is well known to all old settlers in Nebraska, have been projected on either side of the Platte river in the neighborhood of Fort Kearny. But suppose we take it for granted, as in the absence of testimony we must if we consider the proposition at all, that the Kearny City visited by Wattles is identical with Fort Kearny, and that both of these were the one place referred to in "exhibit G," and that the clerk whose name is affixed is legally such, (barring the allegation of illegality of everything relating to Buffalo county,) and that the exhibit of Wattles was identical with the returns sent to the governor; that the board of canvassers canvassed them, and that they were then placed legally in the custody of the secretary, and by him properly exhibited before the examining officer, who duly transmitted them to this House, and that my certificate of election, rested in part upon them as its basis; thus, like the story of the house that Jack built, bringing the matter step by step from the polls in Kearny City to the seat here for which a contest is waged. Still, where is the evidence that it was "not ineluded in the bounds of any county," and was improperly attached to Buffalo county? No witness attempts to fix |
its locality, to give its latitude and longitude, to describe its township and range, or its metes and bounds; and who shall say, in the absence of proof, that Fort Kearny and Kearny City are not embraced within the limits of some one of the numerous counties created by the enactments of the Nebraska legislature? Wattles, in answer to the forty-third question, says he was told the precinct ran to the Rocky mountains. On page 113 of the post office directory of 1859 it is laid down as in "Clackamas county." The next inquiry is, was it, if attached at all, improperly attached to Buffalo county? The laws of Nebraska provide that unorganized counties shall be attached to the county lying directly east for election, judicial, and revenue purposes. Two counties lying upon either side of the Platte, whether the boundary should be the centre of the tortuous stream or either bank, would present many points of contact, where a portion of one would he directly east of a portion of the other; and the spirit of the law does not demand that the inhabitants of a county whose boundaries are thus interlocked shall pass beyond, over a large space of unoccupied country, to find an organized county presenting a larger portion of eastern surface. There are many instances in Nebraska where a county is bounded by two or more counties directly on the east. Can there be a doubt that application could be made to either, and that the validity of the organization thus effected could never be impaired by the consideration of the breadth of the county to which it became attached? Allusion is made to the large number of votes said to have been cast in Fort Kearny or Kearny City, and an inference is attempted to be drawn from it unfavorable to the validity of the election. When it is remembered that this was the midway station of the great contractors, Russell, Majors & Co., who sent to and past that point from two to four supply trains each week, each train consisting of twenty-five to thirty wagons drawn by six yokes of oxen each; that at this point the trains were inspected, the repairs were made, the freight repacked, the disabled laborers and stock recruited, the hay and forage for present and future supply gathered; that this was the great radiating point for all the thoroughfares crossing the Missouri from the mouth of the Kansas to the mouth of the Running Water, whether going to |
Pike's Peak, California, Utah, Oregon, or Washington Territory; that it was a point to which was attracted large numbers of dealers in stock, supplies, and merchandise; that a large force of contractors is always called there in fall and late summer to supply the military post with winter's wood and hay; that the year 1859 was marked by the wild, maniacal rush of at least one hundred thousand persons to Pike's Peak and back, all passing this point; that an abundance of fertile land, just then surveyed and opened for settlement, lay spread out attractedly before them in that vicinity, the wonder is that so few attended the polls; and that Comly, when he intimates that no more than sixty voters were there, had not shared the fate of Ananias and Sapphira. But laying aside all considerations of the absence or insufficiency of proof relating to Buffalo county, and looking at the whole subject as would a family party or a town meeting, could any one be found to dispute the following facts, viz: 1. That in that county the polls were opened in the usual manner and in good faith. 2. That they were presided over by persons acting under color of office and authority, and in good faith. 3. That actual and legal voters cast their ballots there in good faith. And now shall it be contended that all these, whatever may be their number, shall be disfranchised by reason of a lack of form or the omission of some technical duty on the part of those intrusted with the execution of the law? Such a rule would place the rights of whole communities at the mercy of a few individuals. If, then, the testimony should bring us to this point, and if illegal votes are complained of, let them be pointed out and stricken from the majority. This is the rule in other cases; why shall it not be in this? The grounds upon which the votes of
this county are sought to be rejected, contained in the
second and third specifications of the contestant's notice,
are "that, in fact, there was no election held in either of
the said counties of Saline, Calhoun, and Izard, and the
returns purporting to come from the clerks of said counties
are wholly fraudu- |
lent; that all that portion of the territory erected into said counties is entirely uninhabited by white men, and these facts also were well known to the canvassers." This charge is wholly abandoned as to Saline, where it is notorious that a colony settled just before the election, and most of them too late to be voters, and the grounds of the charge are essentially abandoned as to Calhoun. It is evident, from the reasoning of counsel on this subject, (pages 8 and 9, Thom[p]son's arguement,) that no confidence is felt in the proof to sustain the charge that "no votes were cast in Calhoun, and that there were no inhabitants in it." But the circumstance of their transmission by McConihe to the clerk of Platte county is urged as a reason for rejecting them. The first objection to this argument is, that it was not charged in contestant's specification. The next is, that it was sent there for greater regularity under the operation of some law upon which he was not interrogated; and whether the proceeding was regular or irregular, either the identical return originally made to him, or one essentially the same, was retransmitted to him by the clerk of Platte county; and as no diminution or alteration reaching its merits is complained of, such action on the part of the clerk could not justify its exclusion; moreover, the irregularity is nowhere shown. The only remaining points for consideration are those contained in the specifications 2 and 3. 1. The fact of organization. On this point no proof is exhibited, and of course no doubt is raised. 3. That the county was uninhabited by white men. To sustain this charge "the act of 1856, page 200," (page 8,) the testimony of Hindman, (p. 75,) Rogers, (p. 21,) and Kettle, (p. 10,) are introduced. By the act referred to, the boundaries of the county embrace ranges 5, 6, 7, 8, and parts of 9 and 10 east, and townships 13, 14, 15 and 16 north. By reference to the map, as furnished by the Commissioner of the General Land Office, it will be seen that the county is about 32 miles in length on its southern boundary, and precisely 24 miles in width from north to south; and that from a point some distance below Fremont to the western extremity of the county, a space of |
from one to six miles intervenes between the northern boundary of the county and the Platte river. Hindman swears that he moved into the county in 1857, (page 75, answer 2,) and settled in township 17, range 7, (cross-examination, p. 77, 2d question.) He is doubtless right as to the time and place of his settlement, but wholly wrong when he supposed it was embraced in Calhoun county, as may be seen by the reference to the act of 1856 and the map. Rogers resides in Fremont, (question 1, page 21,) one and a half or two miles from north line of Calhoun county, (question 7, page 22,) (Kettle says two and a half miles,) (page 11, question 12;) crossed at Shinn's Ferry, and came down the Indian trail, (question 12, page 23.) How far down the river he went he does not say, but probably to a point opposite Fremont, where he crossed to his home. He does not know exactly the area of Calhoun county, (page 25, question 12.) He says its greatest length east and west is over twenty-four miles, and about twenty-six miles north and south, when from the act referred to, and the maps, it appears that it is over thirty miles east and west, and precisely twenty- four north and south. At all times, save the once when he has been into Calhoun county, he entered it at Fremont island, and went but a mile or two into the interior, of course not reaching Calhoun county, (question 1, page 27.) Kettle says there was a settlement about two years ago, (i. e., in the fall of 1857,) in Calhoun county close by the river, called "Neapolis," (question 13, pages 11 and 12.) Hindman refers to the same, and says it was in ranges 7 and 8, and township 17, (page 76, question 5.) From all this testimony we gather very clearly that there was a space of country between the Platte river and Calhoun county which was a sort of lost district, no one knowing precisely where it belonged, but clearly not in Calhoun county, and it was over this that the mousing parties, hired per quantum meruit, were sent roaming in search of frauds. Did ever mortal hear of such evidence to sustain such a charge! Looking at the maps, the law referred to, and the evidence adduced, and the inference is irresistible that neither Hindman, Rogers, nor Kettle were ever in Calhoun county at all; or if at all, in but a small portion at the northeast part. If evidence of this kind is to be resorted to, is it not a circumstance as strange |
as it is significant that nothing is revealed of the entire southern portion of the county? And yet from the maps we learn that in the southeastern portion of the county is the town of "Excelsior," and in the extreme corner, at the mouth of Salt creek, is "Saline," which were indicated on the surveys as returned to the surveyor general in 1857, and which have appeared on all the maps since then, and that the southwestern corner, of which Rogers says he knows nothing, (page 27, 3d interrogatory,) is crossed by the great thoroughfare from Nebraska City to Fort Kearny, over which, beside the vast amount of emigration, the great transportation trains of Majors & Russell have been constantly passing, (see map marked ) and that upon such thoroughfare, at the head of a small stream, has sprung up a town called "Valparaiso," as indicated upon the land office maps and Colton's map of 1860. All these appear fairly upon the maps, within the boundaries of Calhoun county, in a portion of it which no one of the witnesses pretends ever to have visited, or of which he has any knowledge; and yet from such testimony you are asked to infer that the county is without inhabitants.47 It is proper to say, in justice to the candor of the gentleman who addressed the committee, (Mr. Thompson,) that he admitted that the hearsay of the clerk of Platte county was not legal evidence. This obviates all necessity of referring to the testimony of William Thomas Clarke, (page 79.) The admission enunciates a principle, moreover, which the committee will find abundant opportunity to apply in their examination of the case. The tale of this county is told by Nelegh [Neligh], Kettle, and Thayer. Of these, Nelegh is the only one who has any knowledge of its boundaries by actual inspection. He went up the north or east side of the Elkhorn, and entered that county, where he says he did, near the northeast corner, (p. 81, ans. 4 and 6,) and went into the county between six and seven miles back, (p. 81, ans. 10 and 11.) This visit was in June, 1858, (ans. 8,) for the last time, (ans. 9.) Does not know, of his own knowledge, whether there are any settlers in the county of Izard or not, (p. 81, ans. 12.) Since this witness paid his visit, other counties |
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