in the Territory have been populated by comparatively large communities, and there is nothing to forbid the presumption that the same may be the case here. This observation moreover, in the extreme corner of the county, beyond the Elkhorn, affords no criterion by which to judge of the balance of the county, even at that period. The only remaining witnesses are Thayer and Kettle. Both of these derived their knowledge from the same source, and acquired it at the same time. If the object had been to find willing witnesses, who had been into the county, but under circumstances to preclude the possibility of finding white settlements therein, the experiment was eminently successful in procuring these two gentlemen. A band of Pawnees had visited the settlements upon the Elkhorn, robbing, stealing, killing cattle, and filling the neighborhood with alarm. They were repulsed by the settlers, with a loss of five or six of their number killed. They fled and were pursued by a company, of which Kettle was a member and Thayer an officer, (p. 16, ans. 7.) This company hung upon their trail, without deviation, (ib.,) until they were overtaken and punished.48 Whoever supposes that a band of fugitive Pawnees, fleeing before the face of the white man, conscious of deserving the punishment they know they will receive if overtaken, will nevertheless lead their pursuers into the midst of white settlements, knows little of the character or sagacity of the Indian of the plains. Thayer visited the county between the 6th and 12th of July last, (answer 3, p. 15;) struck the county near the southeastern portion of it, and proceeded in a northwesterly direction nearly through its centre, (answer 6, p. 15; answers 24 and 25, p. 18;) saw no roads, and travelled the Indian trail all the way, (answer 7, p. 16;) travelled about ten or fifteen miles in Cuming county, (answer 28, p. 18;) river runs southeasterly through Izard, and he followed the river all the way, (answers 34 and 35, p. 18.) Now, upon an inspection of the plat furnished by the land office, upon which the course of the Elkhorn is traced through Cuming and Izard counties, showing accurately its crossing of even quarter-section lines, it is found that this redoubtable general must have travelled near twenty miles in Cuming county had he gone straight "as the crow flies;" but following the tortuous windings of the stream, as he must |
necessarily have done, the distance was full thirty; that while he travelled in a northwesterly direction, supposing himself in Izard, he was in Cuming; that instead of entering Izard near the southeast corner, his entrance was near the northeast; that instead of travelling through it from corner to corner in a northwesterly direction, he passed considerably north of its centre, and in a direction south of westerly. However little a traveller upon the plains may know of artificial lines, of one thing we may be tolerably certain, and that is the general direction of his journey. He watches the sun eagerly in its rising, at its zenith, and its going down. He makes it his companion, and regulates his movements by it. General Thayer was not mistaken in the direction he travelled; but his error was in supposing himself in Izard while he was yet in Cuming[.] And yet you are asked to infer that, because he saw no inhabitants in that part of his journey, there were none in the county. Will you follow these premises to the conclusion proposed, and reject the return from Cuming, where it is reported the contestant received a majority; or will you treat the testimony as it deserves--reject it wholly from your consideration? As Kettles' testimony is essentially the same as Thayer's the reasoning in one case will apply to both. I forbear to comment on what these witnesses "don't know," or what they say "folks said." "Folks" are very good witnesses when brought by the proper process before the proper officer and examined and cross-examined in the usual manner; but when detailed to us second-hand such testimony becomes vapid and worthless in the extreme. I will only remark, that while all whose names are mentioned in connexion with this county, whether as party, witness, or lawyer, seem involved in one general oblivion as to its population, as well as its area, boundaries, or creation if inquiry had been set on foot as to the settlements on "Pebble creek" and "Maple creek," both of which run through the southern portion of this county, the where-abouts of a large and respectable population could have been ascertained. "Ordinary maps in circulation" (question 17, p. 13) are made the chief basis of the statements of the witnesses concerning this county. If authentic maps be referred to, it will appear that upon one of these streams in that county is the town of "Oak Dale," a name |
suggestive of a characteristic feature of the country that would of itself attract a population. Is it not strange, while the contestant has seen fit to resort to this vague and extraordinary testimony to substantiate a charge of fraud as susceptible of specific proof as any that could be made, that in this county, as in Calhoun, those portions which by the maps appear to be the only populated parts should be the precise regions to which no inquiry whatever is directed? The charge in regard to this county is
in these words: "That although no more than thirty votes or
thereabouts were given in the county of L'Eau Qui Court by
persons entitled to vote therein, no less than one hundred
and twenty-eight votes were thence fraudulently returned and
counted for you in the final canvass." |
To which he answers: "From my -knowledge, in ordinary conversation, I would say so without qualification." There, nothing can be clearer; now turn back to question 2, and learn that this was a member of the Nebraska legislature, and go your way and doubt no more. When it is seen in the cross-examination that this witness had been but once in the County, (answer 1, p. 46;) that he did not know where the county line was, where he must have entered it, (answer 3, p. 46;) that the west line of the county is indefinite, (answer 4, p. 46;) that he did not know precisely where the south line of the county was, (answer 5, p. 46.) I think it will have to be admitted that this is the most brilliant piece of guessing that has ever been recorded since Faust invented letters. In answer to the last cross-interrogatory, Mr. Taffe (or "Taffy," as Mr. Thom[p]son calls him,) says he came from the south of Illinois. I think it was in that State where, a few years ago, they used to weigh their hogs by balancing a plank across the fence, putting the hog on one end, piling stones on the other, and guessing at the weight of the stones. It is there, doubtless, whence this witness derives his faculty. He has guessed the vote in this county down to 35. Does any one doubt if 35 votes would just make a tie, and 34 would be necessary to save his friend, that so magnificent a guesser could not just as well have fixed it there? Mr. Thom[p]son, at the conclusion of his very able argument, exhibits a sort of India-rubber machine, beautifully elastic, and shows you how it may expand so as to embrace 148 majority for the contestant, and then contract gracefully through various gradations down to 55. Such testimony as the above is indispensable in working those machines. To rebut the testimony of Taffe, Dr.
Graff, who happened to be present by accident, was called to
the stand by agreement. He is able to give the boundaries of
the county, (answer 5, p. 101;) says that over 80 votes were
polled there the previous year;" that he knew of
considerable emigration to the county last summer; that he
saw fifteen |
wagons going to it at one time, and that, without seeing all the points, he made up his mind they could poll over 100 votes, (answer 14, pp. 102, 103,) and that while he was there (forty-eight hours) he saw and conversed with forty men, voters, (answer 14, p. 105,) and knew a number whom he did not see, voters in the county, (p. 105, answers 15, 16, 17.) A useful lesson may be learned by this deposition as to how the contestant's counsel construes the law of testimony. No leading questions, (answer 11, p. 102,) no opinion of the number of voters in the county, (answer 14, p. 102,) no leading and multifarious questions, (answer 15, p. 103,) were allowed to be put without (very properly, I think) interposing his objection. Let the rule be applied to both sides is all I ask. I forgot to call attention to the fact that Dr. Graff's position (register of the land office) gave him peculiar facilities for judging the population of that county. From the manner in which these two
gentlemen are referred to in the argument of Mr.
Tliom[p]son, (pp. 10, 11,) it is evident that no
reliance is placed upon their testimony. It is difficult to
determine why these depositions were sent here except as
"make-weights." If the purpose was to prove by them the
reasons why the contestant was unable to prove anything,
they may have made out a prima facie case. These gentlemen
were part of the smelling committee who were put on the
scent of frauds. It was their duty, among other things, to
get the poll-lists of L'Eau Qui Court, as it was that of
Rogers in Platte, (answer 1, p. 21,) and Wattles in Buffalo,
(answer 2, p. 54;) not to be used in evidence--it would be
an impeachment of the professional ability of the able
counsel engaged in the preparation of the case to suppose
such a thing--but as a private memorandum, (answer 4, p. 24,
answer 40, pp. 58, 59;) and it was because this list was
flouted in their faces, and the taunt was thrown out that it
was to become the foundation for an application for process
to take them to Omaha, two hundred miles, in dead of winter,
that the inhabitants of L'Eau Qui Court county became
exasperated. The idea of making them evidence was an
afterthought. It was not until after cold weather came on,
the "sinews of war" were |
exhausted, and this House was organized, that it was thought best to lay them before the House, and "take the chances." The sequel will show to what purposes the House may be put. This is an old voting precinct; when
the Pawnee reservation was surveyed last summer the lines
were made to embrace this town, or at least a portion of
it." This' of itself, was an act of gross injustice and it
would be a matter of sincere regret if, in addition to this
wrong, it should be found necessary to inflict upon them
another, that of disfranchisement, as proposed by the
contestant. Happily no such necessity exists. It is only
such of the Indian lands as are excluded "by treaty," which
shall constitute no part of the Territory of Nebraska. This
provision was made to apply to a few cases in Kansas, where
the treaty stipulations bring them within the purview of
this provision. While the same phraseology was used in both
the Kansas and Nebraska acts, yet there is no case in
Nebraska to which it applies. This is but another instance
where the counsel has mistaken the law. The only frauds explicitly shown in the
whole case were those in regard to this county. John
McConihe says he first saw them in a lager beer saloon, (6,
p. 50;) were made out in that saloon, (7, p. 50;) saw them
making out returns in the saloon, (answer 9, p. 50.) He
identifies the return as the same counted in the canvass,
(answer 11, p. 51.) It was corrected for Daily by the board
of canvassers, (answer 12, p. 51.) He believes the returns
were an entire new paper, made in that saloon, (answer 6, p.
52.) He advised them to make return of the votes cast for
Estabrook, and their reasons for throwing out the same,
(answer 7, p. 52.) He thinks there was a willingness to
throw out the Estabrook vote on a mere technicality when
they counted all the Daily votes, subject to the same
technicality.--(Answer 10, p. 52.) |
both witnesses that the returns of the whole county, comprising two precincts, were brought by the person claiming to be the clerk on two pieces of paper; that a large vote for me was revealed by them, which was carefully suppressed in the prepared returns, and that the two papers were altered and pasted together and words added after they were so altered. If it had been left in such a condition as that you could have told what number of votes both parties received, so that you could have added those to the list which were rejected for mere informality, I would not ask you to suppress this vote, for I hold that no omission of duty on the part of those conducting the election should work the disfranchisement of the citizen. But in this instance it is carefully prepared, against advice which they voluntarily sought, so as not to reveal my vote in the county. The vote in this county, amounting to 24 majority for the contestant, must therefore be deducted from his aggregate. It is contended in the argument that a
prima facie case is made, and not rebutted. No testimony had been offered to show
the number of votes cast, or the majority to overcome. |
Governor Black had testified that while
his commissions were not deemed essential, he had given them
(as it was supposed their authority would be the more
respected in consequence) to such persons as seemed to have
been chosen by the electors of that county. "The papers were
returned to me, purporting to set forth the choice of
officers by the electors of Buffalo county."--(Ans. 2, p.
60.) "I took no action," &c., "until after the county
officers were chosen by the people."--(Ans. 33, p. 67.)
Prima facie, then, the organization was sufficiently
regular to suit the most fastidious. The only thing claimed
to throw doubt upon this regularity is the paper found on
page 94, not then introduced, and found for the first time
by me here along with the printed testimony. Wattles had testified, but knew nothing
of the election save what was told him, and what be learned
by the exhibits marked E, F, and G; that marked "G,"
relating to Fort Kearny, was found by him in Buffalo county,
and he helped to copy it, but he knew nothing of the
correctness of the original, nor was he questioned as to it.
He used this exhibit especially as his private memorandum,
making a great variety of annotations upon it. It was
introduced to show Kearny City out of Buffalo county, while
the certificate states that it was in that county.--(Page
91.) Is here a prima facie case? The charge as to this county is that no
election was held in it, and the testimony to support it was
that of Kettle, Rogers, and Hindman, who stated at what
places they had visited the county, and where they had held
conversation with the inhabitants; but on an exhibition of
the law organizing it, referred to and relied on by
contestant, and the authentic map of the country, it is
found that the witnesses were not in the county at all, and
did not know the boundaries, location, or area of that
county. Is this a prima facie case? It is submitted,
moreover, that such testimony could, in no event, be
received to support such a charge. |
The charge here is the same as in Calhoun, and the witnesses are Neligh, Thayer, and Wattles. Neligh was in the county once, at the extreme northeast corner, north of a large river, and a year and a half before the election. Thayer and Wattles chased a band of fugitive Pawnees, fleeing from the face of white men, following the Elkhorne, and supposed themselves in Izard. They say that after travelling ten or fifteen miles in Cuming they entered Izard near the southeast corner, going transversely through, and going out near the northwest corner; that they never ran through it in a southeast direction. The map from the official township plats shows that they travelled near thirty miles in Cuming, while they supposed themselves in Izard; that they entered Izard near the northeast instead of the southeast corner; that they went southwesterly, instead of northwesterly, through it. If such testimony could prove anything, it would prove Cuming destitute of population, and in Cuming the contestant is claimed to have a majority. The charge is one of gross fraud. The evidence to prove it is that of men who made a flying visit through it, at some point, they knew not where, with no other purpose than to overtake and punish a band of marauding Indians. To dignify this testimony into prima facie evidence of such a charge would be a grosser outrage on law, justice, and the rights of parties than this committee or House are capable of perpetrating. Every presumption claimed to have been raised here was rebutted by G. B. Graff, who was examined on my part by consent. Moreover, evidence so vague to prove a specific charge of fraud can never be admitted before any tribunal. The proposal here is to disfranchise an old settlement, for the reason that the town had just then been embraced in a survey of an Indian reservation. Happily, the law forbids the damaging thought even. No rebutting was required. The only specific act of determined
illegality, not to say |
fraud, revealed in this case, was proven in regard to this county, where twenty-four majority was counted for the contestant. The testimony was that of the contestant, and the more he attempted to explain the more palpable the wrong became. When the contestant had made his case, therefore, I had a right, as I still have, to demand that. this vote should be excluded, and my majority increased that amount. In conclusion, I would call the attention of the committee and House of Representatives to the body of the argument and synopsis of the testimony, where all the points are fully discussed.  E.
ESTABROOK.
NEBRASKA CONTESTED ELECTION.
MEMORIAL To the honorable House of Representatives of the
Congress of the United States: |
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