Duke University Libraries D0321 2453K /'foj §^3^ ARKANSAS CONTESTED BISECTION. »-• SON VS. GARU] REPORT AND RESOLUTTOXS OF TiiK CoMMi l- TEE ON ELErTIOXS. The Committee on Elections, to wliom Ava? referred the pe- tition of Jilson P. Johnson, claiming that he ha^ heen duly elected a member of the House from the Third Congressional District of the State of Arkansas, and denying the right of lion. A. IT. Garland to his seat, and the other pnpii-s rehit- inrr thereto, have had the same under cnnsideratiiu and ask ^ leave to iipport. Tn oxnttiining t! e papers referred to your Committee, ill \ ; : of opinion that it Avill conduce to a prober under- sLamiiug of the merits of the controversy, and a just and fair d^i^ion, to alloHr the parties to present their resp:c- tive claitfts with greater precision and to take other proofs in relation to the issues which may be thus presented. The contestant asks to be allowed to take evidence in re- ference to the vote of Arkansas county, and ift as^cnting thereto, the Committee have thought it just to accord like privileges to both parties. Pretermitting the exprc : !)ii oT any opinion upon the case as it now stands, for obviou- rea- sons, the (Committee report the matter to the House, and recommend the adoption of the accompanying resolutions. W. N. II. SMITH, Chairmaij. Resolved^ That twenty days be alloAved ' contc'^tant to amend his notice, if he so desire. That the. sitting member have thirty days after such amendment and %6ticc thereof. or ^c%|t^liAt\yd^cHning to amend, within which to make ont^> aii^M'i^hc^to, setting out the grounds on -which he Tcst^^B-"ni+wtrty-oMiis own election, and denies the right of cdmestant to the scat; and that ^vithin ten days there- after, he serve contestant AYith a copy of his answer. That both parties be allowed sixty days after service of the answer, in which to take evidence in the case, and that the evidence to be taken be limited to the allegations and denials contained in the notice and answer, and that the evidence thus taken be forwarded to the House of Represen- tatives, under the rules prescribed by an act of the United States of February 10, 1851, entitled ''An Act to prescribe the mode of obtaining evidence in cases of contested elec- tions." EEPORT OF THE COMMITTEE ON ELECTIONS. The Committee on Elections, to whom was referroJ the petition of J. P. Jolinson, praying to be allowed to contest tlie seat of A. 11 Garhind, and chiiniing the right thereto as llepresentative from the Third Congressional District of Arkansas, with the other papers pertaining to the case, have had the same under consideration and ask leave to make a report. The report heretofore made, presented to the House the question of a further extension of time to enable the ])artie3 to come to distinct and specific issues, and to collect the evidence either might deem material thereto. The refusal of the House to proceed and the recommittal of the whole I matter, if not to be taken as instructions, are nevertheless -deemed clear indications of an intention that your Commit- tee rejtort the facts of the ca^^c and the points and merits of the controversy arising upon them in its present aspects. The duty thus imposed they now undertake to discharge. Your Committee find that according to the returns from the several counties of the Third Congressional District of Arkansas, sent to the office of Secretary of State, as re- quired by law, and published in the proclamation of the Go- vernor on the 10th day of December, 1861, the sitting member, A. H. Garland, received two thousand one hun- dred and fifty-seven (2,157) votes, and the contestant, J. P. Johnson, received two thousand one hundred and twenty- five (2,1 25) votes, while four other candidates received a less number each. Upon this declared statement of the vote, the sitting member has a plurality of thirty-two votes over contestant, and was awarded the certificate of election. In arriving at these aggregates, the vote cast in Arkansas couuty, which alone is drawn in question before the Com- i millet', ^8 reposed from that county by tlie returning officers in the following words : *' \ II. Garland received one hundred and seventy-five votes." "J. T. Johnson received seventy-three votes." And tl)cre are other votes reported for other candidates, which it is not necessary for'a proper understanding of the case, to set out. The vote of the county is evidenced by what piuports to be " an abstract of the returns of the elec- tion hold in Arkansas county, State of Arkansas, on Wed- nesday, the 6tli day of November, 18G1, for a Representa- tive to the Congress of the Confederate States of America for the Third Congressional District, as appears from re- turns- made to this (the County Court Clerk's) office, and the abstract is certified ])y a Deputy County Court Clerk in the name and on bchal of his principal, Joseph II. Max- v;c!l, in an official attestation and by two other persons, Lewis Thompson, a Justice of the Peace, and A. II. !McDo- nald, a house-holder, to be a true statement of the polls of the election held in said county, on the Cth day of Novem- ber, 18GI, according to the poll books rdurmd and filed in his oJBicc." The cortificatj bears date the 13th day of Novem- ber, the seventh day after tlie election. A second return dated December 7tli, and bearing the official attestation of the Clerk alone, was prepared by him and deposited with the Secretary of State, Avhich, upon its face, also purports to be " a list of votes given on the 6th day of November, 18GI, in Arkansas county, Arkansas, for Congjcss, and gives in detail the separate vote at the elec- tion precincts of the county. This return is declared to have Been niavle after examination of the poll books, and to be a full and correct list of the votes, and gives the sitting mem- ber 1S6 votes and the contestant 98 votes." A certified copy of this return from the oflicc of the Secretary of t^tate, was placed in the hands of the Committee by the sitting member. A third return, unexceptionable in form, certified offici- ally by the Clerk and the same persons who certify the first, was prepared on the JOth of December, three days after the second, was transmitted to the Secretary of State, contain- ing a tabular and specific statement of the vote of Arkansas county, as cast at the several precincts. The certificate de- clares that on examining the poll books it is ascertained that "A. II. Garland received 195 votes, and J. P. John- son 135 votes, and that tliis is a true anrl correct abstjact of the vote as returned from the several precincts in said county." The evidence of these returns, consists in authenticate! transcripts of papers on file in the office of the Secretary of State. Two such transcripts were before the committee, one of them was filed by contestant, with his petition and refer- red, containing the first and third returns only. The other was oflfered before tlie committee by the sitting member, and contains the first and second return. By the first return, A. II. Garland is elected by a plural- ity of 32 votes ; by the second, he is elected by a plui-ality of 18 votes; and by the last return J. P. Johnson is clecteJ by a plurality of 8 votes. Accompanying the transcripts, and certified by the same authority, was a copy of an, explanatory letter or statement from the clerk, of tlie date of the last return, which as an unsworn declaration, and not of the kind required to be of- ficially made, and thus become a record, your committee did not consider themselves at liberty to regard as evidence. According to the laws of Arkansas, regulating elections, and which may be found in Gould's Dige.^t, Chapter 62, two poll-books of election are kept by the judges at each place of balloting, one of which they retain in their own hands for public inspection, and the other is deposited within three days with the county court clerk. On the 5th day after an election, and sooner if the returns from the precincts are all in, these poll-books are to be compared, and an ab- stract thereof made out and sent by mail to the Secretary of State. If the returns have not been sent in, the clerk is required to despatch a messenger after siich as are missing, and in this case, seven days are allowed for comparing the polls. The duty of comparing the polls and. preparing the abstract is to be performed by the clerk and two justices of the peace, and if the latter cannot be conveniently had, two sworn householders in place of the justices, and this abstract with the certificate of at least two of the number attached, must be transmitted as already stated. The statute directs the S.cretary of State, if he fiils to receive the abstracts for the two next succeeding mails after they are due, to send for sueh as are wanting, and Avhen all have been received, or within thirty days if they have not, to cast up the votes from the different counties in presence of the Governor, and ascertain the result ; and therGovernor is directed iinmadiately th(?reup:>n by proclamation, to an- nounce the same and award his certificate. The ballots themselves cast at the several places of voting, are also required to be depo.'^itcd by the judges with the county court clerk. The attention of the committee has been called to tlie Act of the Congress of the United States, of February 19, 1851, in reference to contested elections, and its bearing upon the case. This act requires a contestant to give notice of his intention to contest to the party declared to bo elected with- in 30 days thereafter, and therein to specify particularly the grounds upon which he proposes to contest the right of the latter to his seat. It re(}uircs the party thus notified, within 30 days there- after, to deliver to the contestant a copy of his answer wliich must ad::iit or deny the allegations made in the notice. The other provisions of the statute relate mostly to the methods of taking proofs, and limit the evidence to the mat- ters put in i sue. Various questions arc presented upon this statement of tlic case to which the attention of 3'our committee has been directed, and which they believe are disposed of in the con- clusions to which they have come, and which they will pro- ceed briefly to announce. THE NOTICE. The committee are of opinion that the notice given to Mr. Garland, on the 23d of December, as admitted by him, although less specific in its terms, than it might have been made, conforms, nevertheless, substantially to the re- quirements of the act, and is sufficient. It distinctly assigns error in the returns from Arkansas county, the correction of which by the poll-books would make a relative change of 40 votes and reversing the result, elect contestant by a plu- rality of S votes. The election of Mr. G a viand is impeached on this ground, and the notice directs his attention to it. Your committee cannot allow to the failure of the sitting member to answer the allegations in the notice, the effect, without other proofs of dispossessing him of his seat, and still less of admitting contestant in his place. Analogies drawn fVom rules of pleading and practice, adopted in legal tribunals in the investigation of personal controversies and which affect individual interests only, are entirely inapplica- ble to questions involving the privileges of the House, and the political rights of constituencies and States. Nor is there anything in the act of Congress which gives counte- nance to the argument based upon them. In the judgment of your committee, the range of their enquiries must be more comprehensive, and they are to ascertain who is elec- ted and entitled to the disputed seat. If the evidence re- quire, they may refuse the seat to both contestants and award it to a party not before them. Your committee will not stop to point out all the difficult ties of a proposition which requires them to take as con- clusive the unanswered averments of a notice. They will present but a single one. Suppose there were two contest- ants, neither of whose notices is answered, to whom shall the seat be given ? Or can the party in possession of the certificate, by answering one and refusing to answer the oth- er at his own pleasure, transfer the seat to the one he may prefer ? And might not a person ineligible under the Con- stitution, by this means become a member of tlie House. Your committee could not then properly arrest the enqui- ries they are charged to make as to the right to the contest- ed seat, but proceeded to examine such evidence as was pro- duced before them, in order to determine upon its sufficiency to warrant them in reversing the decision of the Governor of the State. It is to be observed that there are tliree distinct, indepen- dent and essentially conflicting abstracts, each certified by the officer having in custody the original, as true and made up from the one set of poll-books in his office. Of these the first only is within the extreme limit allowed by law, and is accepted and acted on by the Governor. It is certified by a deputy clerk, authorized by law, a justice of the peace and a householder, and in form complies with the requisi- tions of law. It does not appear that McDonald, the house- holder was sworn, and if the averment of his being sworn is deemed necessary to the validity of his act, which the com- mittee are not prepared to admit, still the attestation of the other two is good and sufficient under the statute. It might be further suggested, if parol proof were admissible, to shoT that he was sworn, (and of this there seems to be m JMsi grounds of doubt) whether the Governor must not be a^usm- ed to have had evidence of whatever was materiil t) t U v.:- 8 lidity of the return when he acted upon it. The second return IS tlie act of but a single ofiicer, and was prepared more than a month after the election. The third return is unobjco- tionable in form, but was made up still Liter, and coubl not have reached the Secretary of State, until the count required of him had been made, and the result of the election ascer- tained and declared. This mu^t be apparent from the fact that the return and proclamation bear the same date. ^ But the committee are not restricted as was the Governor, and whether he should have considered the last return or not, they arc to ascertain the true state of the vote. Upon the proofs before them, they are unable to report the vote of Arkansas County as differing fr(»m that declared in t e pro- clamation. They know no ])rinciple upon which ])rei)onder- ancc is to be given to the last of the conflicting returns and the first. Whether the discrepancy is the consequence of clerical error, or results from alterations made in the books during the interval — or because one is partial and the other full — or from some other cause, your committee will not undertake to infer, in the absence of any just principle of evidence^ upon which such inference can be made. Official papers returned within time ought to be invalidated by others, not so returned, only upon clear and satisfactory proof of error. Such proof has not been given to your committee. It is obvious that the only means of arriving at the true vote of Arkansas County would be the production of the poll-books themselves, of which there should be double sets, or authenticated copies direct from the office in which they are kept. This evidence would reveal the correct vote, while conflicting abstracts or copies successively sent to another office and thence certified to us never can. Or parol evidence might be produced in support of the correct return, if either be correct, and of the actual vote, if none are. The preservation of the ballots would facilitate the enquiry. Neither pirty has resn-ted to this originil an I primary source ot evidence, in its nature decisive of the facts. The sitting member holds his place upon the lloor by the adjudication of the House on his prima facia title under the Governor's certificate. Your committee cannot, upon the facts before them, deprive him of the advantages he tlius holds, and undertake to reverse the action of the executive authority of Arkansas. After the committ:e had proceeded thus far in their inves- tigations and conclusions upon the evidence before them, an application was made by contestant, supported bj affidavit for time to take other and further testimony as to tlio vote of the County of Arkansas. The committee understood the sitting member to ask that the privilege should be granted to him to take further evidence generally provided any time is granted for the purpose asked by contestant. Your committee admit that the evidence submitted by contestant, though insufficient for t!ie purpose of ousting the sitting member for reasons already stated, is yet of such force as to entitle the application for further time to res- pectful consideration. And as this is the first contested election case under our Government, as its decision and the rules established by it will be, for manifest reasons, entitled hereafter to much weight as a precedent, and as several of your committee seriously doubt whether the act of the Con- gress of the United States in such cases is of bin ling force, and certainly was not observed by either party thus far; your committee seeing that no damage could result to cither the contestant or sitting member, or their constituency, re- solved, as far as possible, and justice would admit, to seek to establish such a rule as would be a guide in future cases. Your committee propose to act upon the case as if it had just arisen, and to suggest a reasonable time wherein a con- testant must give notice of his purpose to contest, the time in which a sitting member must reply to su^h notice, and the time, and rules, &c., in which and under which evidence shall be taken. They propose that this House shall formally adopt the rules prescribed by the act of the Congress of the United States, and thus add to whatever force th;y may now have, the solemn sanction of the House in the first contested election case that comes before it. They, therefore, report the following resolutions: 1. Raolved, That thirty days be allowed to contestant to amend his notice, if he so desire. 2. That the sitting member bo allowed thirty days, after such amendment is made and notice thereof, or after notice of contestant's declining to amend, in Avhich to make and serve his answer thereto on contestant, setting out in said answer the grounds on which he rests the validity of his own, and denies the election of contestant. 3. That after service of the answer, or expiration of the time limited therefor, sixty days be alloAved the parties to take evidence, which shall be confined to the allegations and denials contained in the notice and answer, and that the to same be taken and t;"ansmitte(l to the House, under the rules prescribed by the Act of the Congress of the United States, approved February 19, 1851, entitled "An Act to prescribe the mode of obtaining evidence in cases of contested elec- tions. AV. N. II. SMITH, Chairmui, etc. MINORITY REPORT. The undersigned two of the Committee on Elections, to whom was referred the petition of the Hon. J, P. Johnson, of Arkansas, "claiming the seat in the House as th ) Repre- sentative from the Third District in the State of Arkansas, and asking that he be permitted to contest the seat of the sitting member, the Hon. A. H. Garland," differing in their convictions from the majority of the Committee, beg leave to present this minority report. In pursuance to law an election for Congressmen was held in the Third Congressional District of the State of Arkan- sas, on the 6th November, 1861, at which the contestant and tlic sitting member, together with others, were candi- dates, and as such voted for. The District is composed of thirteen counties, the couniy of Arkansas being one. In the State of Arkansas the Voting is by ballot, ami it is made the duty of the judges of the several precincts to make out duplicate lists or poll books of the ballots or votes cast, one of which they are required to retain, and the.other to return under cover of seal to the Clerk of the County Court, within three days after the elec- tion ; but, if from any cause, the poll books should not be returned within three days from any one of the preoincts, it is made the duty of the Clerk, on the next day (that is the fourth day after the election) to dispatch a messenger for the same. The law further provides that if tlie poll books arc all re- ^turned within the three days, it shall be the duty of the Clerk, on the oth day after the election, to call to his assis- tance two justices of the peace, if to be had conveniently ; if not, two householders, who being first sworn, shall pro- ceed to open the poll books, and cast up the votes for each of the candidates, and make out an abstract of the vote as they may find it to be from the poll books. In the event the poll books are not received within the three days, and a messenger is dispatched as contemplated by the statute, then the abstract is to be made out on the 7th dav after the election. 12 The ;P)sfnict thus uiutle out is to be certific'l, and it is made the liiity of the Clerk immediately to mail it in the nearest post-office, addressed to the Secretary of State at the Cajiital or Seat of Government, whose duty it shall be to file tlie same away in his oflBce, under seal. It is made the duty of the Governor and Secretary of State within thirty days, or sooner, if the returns are all in, to open the abstracts or certificates, and count up the voto, aal the Governor shall then imnieliately is?uoa certifi- cate of election to the person having the highest number of votes, anil also his proclamation, announcing his election. *' See Gould's Digest Statutes of Arkansas, under the head of elections." In tliis case, on the 13th November, seven daj^s after the election, the Deputy Clerk, a justice of the peace and a house-holder opened the poll books of Arkansas County, and cast up the vote, and thereupon forwarded the abstract to the Secretary of State. This rbstract shows that the sitting member received one hundred and seventy-five votes, and the contestant seventy-three votes. WMen this abstract reached the office of the Secretary of State does not appear, but it was on or prior to the lOth day of December, ISGl.for on that da}^ acting upon this certificate or ab- stract, the Governor issued the certificate of election to Mr. CJarland. and also issued his proclamation announcing the vote, which agrees with this first certificate. On the lUth of December, 1861, the Clerk of tlie County Court, and the same justice and house-holder, by somo means, learning a mistake had been made in counting the vote on the 7th November preceding, took the poll books and recounted the votes, and upon such recounting, disco- vered that the contestant ha;!, in fact, received one Jiundrcd and thirty tliree votes, and the Hon. A. II. Garlan» c3 -tj o COUNTIKS. >-. -•-> Counties. c3 dn. h-" r, l-H • Hi r' tt , ai ci H 1-^ Fulton 86 231 26 15 Izard Randolph 117 151 Lawrence 333 47 438 151 18.) 132 Green Indpcndencc White 347 167 96 241 611) 225 Jackson Craighead ^ Poinsett 195 27 St. Francis 321 157 Crittenden, no returns received. Mississippi 71 50 Monroe , 2G9 449 49 3i)4 Phillips Total 3,227 2.127 11 Making in the aggregate, in the First Congressional Dis- trict, for Fe'ix I. Batson, four thousand two hundred and thirty-four votes; for H. F. Thoraasson, one tliousand eight hundred and seventy-nine votes; for R. F. Colburn, thirtv- six votes ; scattering, sixty-seven. In the Second Congres- sional District, for G. D. Royston, three thousand four hun- dred and fifty-nine votes; for A. S. Huey, one thousand three hundred and twenty-three votes; for J. T. Pcajden, eight hundred and sixty-four votes ; for S. M. Scott, five hundred and seventy-two voles ; for A. G. Mayers, five hun- dred and twenty-three votes; for John F. Wheeler, one hundred and thirty-nine votes ; for Green J. Clark, two hundred and seven votes; and scattering ten votes. In the 20 Third Congressional' District, for A. II. Garland, two thou- sand one hundred and fifty-seven votes ; for Jilson P. John- son, two thousiuid one hundred and twenty-five votes ; for B. C. Ilarley, one thousand seven hundred and ten votes ; for J. C. Murray, five hundred and twenty-seven votes; for S. F. Arnett, five hundred and fourteen votes; for W. P. Grace, two hundred and sixty-three votes ; and scattering eight votes ; and in the Fourth Congressional District, for Thomas B. Hauly, three thou--and two hundred and twenty- seven votes; for James H. Patterson, two thousand one hun- dred and twenty-seven votes ; and scattering eleven votes. Now, therefore, I, Henry iM. Rixtok, Governor of the ■State of Arkansas, hy virtue of the authority in nie vested by law, do hereby declare and make known, that Felix I. 'Batson, in the said First Congressional District; Grandison D. Rov-ston, in the said Second Congressional District ; Augustus II. Garland, in the said Third Congressional Dis- trict ; and Thomas B. Hanly. in the said Fourth Congres- sional District, were at said election duly elected Represen- tatives to represent the State of Arkansas in the Jlouse of Representatives of the Congress of the Confederate States of America, for the term of two years, wdiich will commence on the 22d day of February, A. D. 18G2, and \y\]\ end on the 21st day of February, A. D. 1.864, and will onbrace the first Congress of the Confederate States. In testimony whereof, I have hereunto set my /-^^^ hand and caused the seal of the State of Arkansas, j L. S. [ to be affixed at Little Rock, this the I nth day of ' v.^^/ * December, A. D. 1861. H. M. HECTOR, By the Governor : JoHX I. Stirman, Secretary of State. STATE OF ARKANSAS. I, John I. S irman. Secretary of State of the State of Arkansas, do certify that the annexed and foregoing Procla- mation by the Governor, 11. M. Rector, of date 10th of December, 1 861, is a true and perfect copy of the same on file ij^ my office. In testimony whereof I have hereunto subscribed my name /^-^ as such Secretary of State, and affixed the great A SEAL. > seal of the State, at office in Little Rock, this 13th ^ ^-v-^ ^ day of December, 1861. JOHN I. STIRMAN, Secretary of State. By E. W. Stirman, Deputy Secretary of State. f 21 THE STATE OF ARKANSAS : I, Henry M. Rector, Governor of the State of Arkansag, and keeper of the Seal thereof, do hereby certify that John I. Stirman and E. W. Stirman, his Deputy, whose names are signed to the annexed instruments of writin£r. 'R'as at the time of signing the same Secretary of State, and E. W. Stir- man Deputy Secretary of State, in and for the State of Ar- kansas, duly commissioned according to lavr, and that his attestation is in due form. In testimony whereof, I have hereunto set my hand and .^-^ caused the Seal of said State to be affixed at < Seal > Little Rock, on the 13th day of December, A. D., ^ ^^ ^ 1861. H. M. RECTOR. By the Governor: John I. Stirman, Secretary of State. By E. W. Stirman, Dipufy. An abstract of the returns of the election held in Arkan- sas county, State of Arkansas, on Wednesday, the sixth day of November, 1861, for a representative to the Con- gress of the Confederate States of America, for the Third Congressional District, as appears from the returns made to this office. John C. Murry received ninety-three votes. A. H. Garland received one hundred and seventy-five votes. S. F. Arnett received six votes. W. P. Grace received eight votes. J. P. Johnson received seveixty-three votes. Thomas S. James received one vote. B. C. Harley received ten votes. I, Joseph H. Maxwell, Clerk of the Circuit Court and e.x-officio Clerk of the County Court in and for the County of Arkansas, do hereby certify that the above statement of the polls of the election, held in said county, on the sixth day of November, 1861, is true according to the poll booka returned and filed in my office according to law. Given under my hand this 13th November, 1861. (Signed.) JOSEPH H. MAXWELL. Clerk. Per B. F. Quertermons, D. C. We, the undersigned, do hereby certify that the above is a correct abstract of the returns made to this office Given under our hands this 13th November, 18GI. (Signed.) LEWIS THOMPSON, J. P. A. II. McDonald. Abstract from the poll books of the general election held in and for the county of Arkansas, in the State of Arkan- sas, on Wednesday the Gth day of November, 1861, for electors to elect a President and Vice-President for the Con- federate States of America. EDWARD CROSS, DAVID WALKER, JOHN R. HAMl'TON, H. L. GRINSTEAD, > Received 379 votes. W. C. BEVVENS, W. W. MANSFIELD, R. N. GAINES. I, Joseph II. Maxwell, Clerk of the Circuit Court and ex-qfficio Clerk of the County Court, in and for the county of Arkansas, do hereby certify that the above statement of the polls of the election, held in said county on the Gth day of November, 1861, is true according to the poll-books re- turned and filed in my office according to law. Given under my hand and the seal of said Court this ,^^ 13th day of November, 1861. j L. s. JOSEPH II. MAXWELL, Clerk. ' — ,^ ^ Per B. F. Quertermons, D. C. We, whose names are hereunto subscribed, do hereby cer- tify the above is a correct abstract of the returns made to the office of the Clerk of the polls of the election held in said county, on Wednesday, the day of November, 1861. LEWIS THOMPSON, J. P. A. 11. McDonald, Householder. 1 THE STATE OF ARKANSAS: To all whom these presents shall come, greeting : Know ye, that in compliance with law, an election was held on Wednesday, the sixth day of November, A. D., 23 1861, in the Third Congressional District of this State, and it is hereby certified that, at said election A. H. Garland was duly elected a representative to represent the State of Arkansas in the House of Representatives of the first Con- gress of the Confederate States of America, for and during the term of two years, which will commence with the day of February, A. D., 1862, and end Avith the day of February, A. D., 1864, and will embrace the first Con- gress of the Confederate States. In testimony whereof, I, Henry M. Rector, Governor of the State of Arkansas, have hereunto set my hand and caused the Seal of said State to be aflSxed at L. !-\ Little Rock, Arkansas, this lOth day of Decern '^ ber, A. D., 1861. HENRY M. RECTOR. By the Governor : John I. Stirman, Secretary of State. DeWitt, Arkansas, Dec. lOth, 1861. To His Excellency^ Henry M. Rector, Governor of the State of Arkansas, and John I. Stirman, Secretary of State : We, Lewis Thompson and Alva H. McDonald, who were called upon by Joseph H. Maxwell, Clerk of Arkansas county, on the 13th day of November, 1861, to examine and make out an abstract of the vote cast for President and Vice-President and President Electors, and also for mem- bers of Congress to represent this district (the 3d,) in the first Confederate Congress, ask tliat they be permitted to withdraw the abstract that they then made out, in order that they may be able to substitute the true and correct returns of the votes, as found by the poll-books in the office, in the county of Arkansas and State of Arkansas. The correct return, or abstract, they now enclose, under cover of seal, and have dispatched Greene C. Crossen, as a messenger, to deliver the same to you, at office of Secretary of State, at Little Rock, which they pray you to receive and count, as the correct vote pf the county of Arkansas, as made known by the elections at the different places of vot- ing, in said county, on the 6th day of November, 1861, and 24 are to be found on file in the County Clerk's office, at De- Witt, the county site of Arkansas county. Very respectfully, yours, JOSEPH II. MAXWELL, LEWIS THOMPSON, • A. II. McDonald. STATE OF ARKANSAS, ) County of Arkansas. y ■ I, Joseph II. Maxvrcll, Clerk of the Circuit Court, and, ex officio, Clerk of the County Court within and for the county of Arkansas, do hereby certify that, at the time that the poll-books of the vote cast in this county, on the Gth day of November, 1861, for Presidential Electors and Con- gressman, were examined, I was engaged, waiting on the Circuit Court of my county, wliich was then in session, and the abstract made out by my deputy, Benjamin F. Querter- nions, who is now in the army, and Lewis Thompson, Esq., and Alva II. McDonald, as shown by the poll-books of the diiferent precincts of said county, was incorrectly counted, and the abstract on file in my office, a copy of wliich was sent to Little Hock, contained error, and was not the correct vote, as is shown by the poll-books, which was at that time in the office on file. In testimony whereof, I have hereunto set my hand, and affixed the seal of my office, this the loth day of December, A D. 1861. JOSEPH II. MAXWELL, Clerk. ^•1 STATE OF ARKANSAS, County of Arkansas, At an election held at the several precincts in Arkansas County, Arkansas, on the sixth day of November, A. D. 1661, pursuant to notice, for the purpose of electing one Eiember to Congress of th"" Confederate States of America, from the 3d District of the State of Arkansas, whereupon the following named persons, candidates for Congress, re- 25 ceived the number of votes opposite theii' respective names, viz : a. ■a a o a ^ . c. 2 C c o d 4 . a. Names of Candidates. o e o IS o El 3 fe 1 % « H K c i* a c i » ^ Eh H i c Ic S a 3 GO H X ii t- a a ::; >> h ~ *^ ^^ u o < — O ^ a «B O - ^ A. H. Garland 17 7 9 16 11 40 1 1 39 18 9 1 2 6 11 19 35 5 22 5 81 1 11 J. P J»hnson John 0. Murray 63 S. P. Arnett 1 4 1 4 2 1 3 1 1 •• Win. P. Grace Thos. S. James B. 0. Ilarley 1 q 195 133 9T 9 3 1 1» STATE OF ARKANSAS, County of Arkansas. We, JoscPH II. Maxwcll, Clerk of the Circuit Court and ex-ofEcio Clerk of the County Cturt, in and for said cjuntj, and LEwrs Thompson, an acting and duly c:mmissioned Justice of the Peace, in and for said county, and Alva. H. McDonald, a householder and resident of said county of Arkansas, first being duly sworn according to l;iw, do hereby certify that we have this day examined the poll-l^noks of the- election above mentioned, and that A. 11. Garland received 195 votes; J. P. Johnson, 13i votes; John C. Murray, 97 votes; S. F, Arnett, 9 votes; Wm. P. Grace, 8 votes ; Thos. S. James, 1 vote, and B. C. Harley, 10 votes, and that the above is a true and correct abstract of the votes as returned from the several precincts in said county of Arkansas. Given under our hand, this, the lOth day of December, A. D., 1861. JOSEPH 11. MAXWELL, Clerk. LEWIS THOMPSON, J. P. A. H. McDonald, Householder. STATE OF ARKANSAS, ) Count V of Arkansas. ) I, Joseph II. Maxwell, Clerk of the Circuit Court and ex-officio Clerk of the County Court in and for said county, 2ti do hereby certify that the within, above ami foregoins trans- cript is a true and perfect copy of the original one made out by myself, Lewis Thompson, and A. H. McDonald, on the 10th day of December, 1861, as the same is now in my office on file. J '^-^^ J In testimony whereof, I have hereunto set my < SKAL > hand and affixed the seal of my office, this, ^ —^ ' the mth day of December, I SGI. JOSEPH H. MAXWELL, Clerk. STATE OF ARKANSAS, CoU.NTY OF An KANSAS. At an election held at the several precincts in Arkansas county, in the State of Arkansas, on the 6th day of Novem- ber, 186 1, pursuant to notice, for the election of olecrors to vote for President and Vice President of the Confederate States of America, the following persons, candidates for electors, received the number of votes opposite their respect- ive names, viz : STATE OF ARKANSAS, County i f Arkansas. We, Josi-pu II. Maxweil, Clerk of the Circuit Court and ex-officio Clerk of the County Court, in and for the said county, assisted by Lewis Tiiomps( n, an acting and duly commissioned Justice of the Peace for said county, and A. H. McDonald, householder and resident of Arkansas coun- 27^ ty, do hereby certify that we have this day compared the poll-books of the election above-mentioned, and that the above is a true and correct abstract of the vote as returned from the several precincts in said county, .^-^ Given under our hands, this lUth day of De- < SEAL [ cember. 1861. < .^^ > JOSEPH II. MAXWELL, Clerk. LEWIS THOMPSON, J. P. A. II. McDonald, Householder. STATE OF ARKANSAS, ) County of Arkans.vs. ) I, Joseph H. Maxwell, Clerk of the Circuit Court and ex-officio Clerk of the County Court, in and for the county aforesaid, do hereby certify that the within and foregoing abstract is a true, correct, and complete copy of the original one made out by myself, Lewis Thompson-, and A. H. Mc- Donald, on this, the lOth day of December, 1861, as the same appears on file in my office. ,^N^ In testimony whereof, I have hereunto set my } SEAL > hand and affixed the seal of my office. ^ ^— ^ this, the lOth dav of December, 1861. JOSEPH H.'^MAXWELL, Clerk. STATE OF ARKANSAS, L. S. I, John J. Stirman, Secretary of State of the State of Arkansas, do certify that the annexed and foregoing nine half sheets contain a true, complete, and perfect transcript of the original election returns, papers and documents, and the endorsements thereon on file in my office, relating to the election held in the county of Arkansas, in said State, for Electors and a member to the Confederate Congress, &c., on the 6th of November, 1861. In testimony whereof I have hereunto subscribed my f ^^-^ ) name as such Secretary of State, and affixed the ( Seal ) Great Seal of the State at office in Little Rock, this 13th day of December, 1861. JCIIN I. STIRMAN, Secretary of State. By E. W. Stirman, Deputy Secy of State. i' THE STATE OF ARKANSAS. I, Henry M. Rector, Governor of tho State of Arkansas^ and keeper of the Seal thereof, do hereby certify that Jo- seph H. Maxwell, whose name is signed to the annexed in- struments of writing, was at the time of signing the same. Clerk of the Circuit Court, and ex officio Clerk of the Coun- ty Court in and for the county of Arkansas, in said State, duly commissioned according to law, and that his attesta- tion is in due form. In testimony whereof, I have hereunto set my hand and ^ .-^.^^ ) caused the Seal of said State to be affixed at Little ( Seal \ Rock, on the 13th day of December, A. D., 1861. By the Governor : H. M. RECTOR. John I. Stirman, Secretary of State. Per E. W. Stirman, Deputy. An abstract of the returns of the election held in Arkan- sas county, State of Arkansas, on Wednesday, the 6th day of November, 1861, for a Representative of the Congress of the Confederate States of America, for the Third Congres- sional District, as appears from tlie returns made to this office: John C. Murray received ninety-three votes; A. H. Garland received one hundred seventy-five votes; S. F. Arnett received six votes ; "VY. P. Grace received eight votes ; J. P. Johnson received sevent3'^-three votes ; Thomas S. James received one vote ; B, C, Ilarley received ten votes. I, Joseph n. Maxwell, Clerk of the Circuit Court, and, ex officio, Clerk of the County Court in and for the county of Arkansas, do hereby certify that the above statement of the polls of the election, neld in said county on the sixth day of November, 1861, is true, according to the poll-books returned and filed in my office, according to law. Given under my hand this 13th November, 1861. (Signed,) JOSEPH MAXWELL, Clerk, per B. F. Querteumons. 29 "We, the undersigned, do hereby certify that the above is a correct abstract of the retura^ made to this office. Given under our hands this 13th November, 1-61. (Signed,) LEWIS THOMPSON, /. P. A. H. McDonald. A list of vote.T given on the 6th day of November, 1861, in Arkansas County, Arkansas, for Congress. ^ ■ ■r c • O >> t> Oi a. , • Candidates. -X c tn ■I. Si 3 O c c i XI. > ^ cr a. rt C h >> s cl t- o r3 :^ v.^ 7 11 17 81 2-2 10 11 213' 1 11 H Garland 186 Johnson 9 1 1 i i 5 9 ?.() 40 P8 Afnett ' 1 1 '4 5 Murray 10 03 9 Hanlcy Grace James - 1' STATE OF ARKANSAS, County of Arkansas. I, Joseph IT. Maxwell, Clerk of the Circuit Court, and, ex officio. Clerk of the County Court in and for the county aforesaid, do hereby certify that I have examined the poll- books of the Congressional election held in said county, on the 6th day of November, 1861, and that the above and foregoing abstract is d full and correct list, and that I found that A. H. Garland received 186 votes, J. P. Johnson re- ceived 98 votes, S, F. Arnett received 5 votes, J. C. ^lurray received 91 votes, Ilarley 10 votes, Grace 4 and James 1. ,^^^ In testimony whereof I have hereunto set my < L. s. > hand, and affixed the seal of my office, the 7th December, 1861 JOSEPH H. MAXWELL, Clerk. Executive Office, ) Little Kock, Dec, llth, 1861.} This return, made by the Clerk of the County of Arkan- sas, is deemed by me inadmissible, for the reasons — 30 1st. It was not returned within the time prescriheil by law. 2n(l. It was not sent in the 7nodc prescribed by b'^w. 3d. It is invalidated by the second paper, or certificate of the same date, sent me through the same channel, marked No. 2. The Clerk stated, in his No. 1, the vote of Polk township to be, for Garland 10 votes; in No. 2 he certifies that the vote of Polk township is not found in his office. (Signed,) II. M. RECTOR, Governor of Arkansas. Secretarv of State's Office, ^ Little Rock, Arkansas. > February 4, A. D. 18G2. ) I, John I. Stirman, Secretary of State of Arkansas, here- by certify that the foregoing two pages of abstracts and re- turns and certificates of election, sent up by Joseph II. Maxwell, who is the Clerk of the Circuit Court, and, ex officio, Clerk of the County Court in and for the County of Arkansas, in the State of Arkansas, and also the page at- tached, which contains the opinion of Henry M. Rector, Governor of the State of Arkansas, is a true, literal, and perfectly com})arcd copy of the original documents of the same purport, now on file in this office. In testimony whereof, I, John I. Stirman, Secretary of r^-^^ the State of Arkansas, do hereunto set my hand, < Seal > and affix my official seal of office, on the day and -^'^ ^ year first above written. JOHN I. STIRMAN, Secretary of Stale. 31 ABSTRACT of Votes given for Representatives to the Congress of the Confederate States of America, in the 3d Congressional District, held on the 6th day of Novem- ber, A. D., 1861. COUFTIES. Palaski.. SaKine Dallas Ca houn.. Dnlon Jefffrs 'D . Bradley. . Drew A»hl y... Chicot IlfBha.... Arkansas Prairie .. Total . a -» < n c cu fa < a ►ri en Votes. Vote?. Votes. Votes. 444 , 221 117 21 1?3 190 144 8 231 112 149 84 20 60 52 57 843 194 172 1 70 58 8)8 7 73 183 16") 17 , 241 186 196 176 \m 336 11 65 161 1 82 2 22 347 3 175 10 73 6 91 159 269 146 Sl.'iT 1710 2125 527 >^ . u <» C a c' ^ b ^ ^" f^ a o Votts. Votes. Votes. Votes. 9 1 1 1 2 1 8 18 100 14 9"? 105 136 99 26 17 53 4 S9 1 88 S 93 8 2 2 514 268 Fcat'erirp. Sciittoriop. State of Arkansas : I, John I. Stirman, Secretary of the State of Arkansas, do herebj certify that the foregoing abstract of the votes cast at an election held in tlie third District of the State of Arkansas, on the 6th day of No- vember, A. D., 1861, is a true and perfect copy of the same as made out by the Governor, in connexion with the Secre- tary of State, as required by law. On file in my office. ^-*-/^-*-s In testimony whereof, I have hereunto set my < Seal. [ hand as such Secretary of State, and affixed the ^ v»^~N^-*^ ^ seal of the State of Arkansas at office this the 13th day of December, A. D., 1862. JOHN I. STIRMAN, Secretary of State. By E. W. Stirman, Deputy Scaetary of State. 32 To Hon. A. H. Garland Little Rock, Arkansas, ) December 14tli, 1861. ] Sir : The corrected vote of Arkansas county gives me a majority of ei;^ht votes over you in the arrgre^ate of the vote cast at the election held in this State on the 6th of November, 1861, for r::embcrs to Congress, and as the cer- tificate of election has been granted to you, 1 hereby notify you that 1 will contest your right to a seat in the Confede- ^ rate Congress by virtue of' the same. Very respectfully, J. P. JOHNSON, I certify the above is a true copy of a letter placed in the hands of Col. A. 11. Rutherford, to be left at the House of the Hon. A. H. Garland, in the city of Little Rock, this December 1-ith, 1861. JOHN D. KLMBALL. Richmond, January 23d, 1862. Hon. A. 11. Garland : Dear Sir : By the instruction and request of Jilson P. Johnson, Esq., who was one of your competitors in the re- cent election in the Third District of the State of Arkansas, for a seat in the first Congress of the Confederate States of America, I notify you that it is his intention to contest your right to a seat in said Congress. I am further authorized and requested by him to state as the grounds upon which he feels compelled to nuike this contest, that the returns of the election in said district upon which were based the action of the Governor and Secretary of State of the State of Arkansas, in their award to you of the certificate of election to Congress, were erroneous in this, that by the election returns of the county of Arkansas, it appears that you received one Inmdred and seventy-five votes, and that he received seventy-three votes ; whereas, in truth and in fact, and by the corrected election returns of the said county, a true copy whereof is herewith submitted, it appears that you received one hundred and ninety-Jirc votes, and he received one hundred and thirty-three votes. Thus he alleges that by the error or the omission of the olHccrs 33 making the returns of the said county of Arkansas, he is deprived of many votes, saj forty, which were cast for him by citizens of said county. And which said votes added to the residue which had been cast for him throughout the said district, constituted in his favor a majority over yourself, and a plurality over all competitors. He further deems it proper to state, that the returning officers of said county when they had discovered the error or omission aforesaid, made out anew a true and corrected set of returns of the election for Congress in said county, r,and transmitted the same to the Secretary of State, at the capital of said State, but that the same were not received until after the certificate of election in your favor had been executed and delivered. Believing, as he does not doubt,, that he was duly and legally elected to Congress, he regards it as an obligation under our representative system of government, and as a duty to the voters of the District, that he should contest your right to the said certificate before the House of Repre- sentatives, and should, accordingly, give you this notice of the fact. I am, sir, very respectfully. Your obedient servant, R. W. JOHNSON, AFFIDAVIT OF J. P. JOHNSON. Richmond, Va., ) March 12th, 1862. \ Jilson P. Johnson states on oath tliat when the Governor had issued his certificate of election to lion. A. II. Gafland, he consulted counsel, and gentlemen learned in the law, at Little Rock, and Avas advised by tiiem, and verily Ijclieved, that the abstract of the votes of the County of Arkiinsas, made by the Clerk, the Justice of the Peace and the House- holder, on the KUh of December, 1861, was official and competent evidence, and when applied to the documents ne- cessary to show its operation and effect, would be sufficient to establish the error Avhich he alleged in his notice to Mr. Garland, and would entitle him to succeed in his petition, and that it would not be in anywise necessary for him to take any other proof. That he acted on this advice, !ind his own conviction of its correctness, and therefore made no effort to obtain any other proof, except the ducuraents contained in the state- ment of the case and read in evidence. He did not believe, until after he had reached Richmond, on the 13th day of February, that there would be a contest for the seat ; but after his arrival hero, learning from Mr. Garland, for the first time, that he would insist upon his claim to tlic scat; Mr. Garland being a lawyer, while the affiant was not, he consulted and retained counsel, and caused him to examine the documents. He was then informed, for the first time, that it Avas pos- eiblc the committee might sustain objections of Mr. Garland to his evidence, and require the production of the copy of the abstracts of the votes received and recorded at the sev- eral precincts of the county of Arkansas, returned and on file in the Clerk's office, or other evidence of a higher grade ; but that in such event the affiant would certainly 35 be allowed to offer further proof, and be given time to obtain and produce it, and that the case could and would be con- ducted in a mode which would entitle him to a motion for that purpose. He states that he does verilj believe that the error alleged in the abstract of the votes of the County of Arkansas, made up and certified on the 13th of November, was erroneous, aa stated in his notice and petition, and that the abstract of the lOth December does show truly the number of votes given for Mr. Garland and himself in that county, and that this fact will appear by a compilation of the abstracts returned in due time into the clerk's oflSce of the county, and that reasonable time being allowed, he will be able to show the fact by any grade of evid.ncc the committee shall require. He asks for a postponement of the final hearing of the case, in order that evidence may be obtained which will show the truth with the highest degree of certainty, and justice thereby certainly done, and not merely for delay. J. P. JOHNSON. Sworn to and acknowledged before me, March 12, 1862. W. N. IL SMITH, Chairman, &c 36 Petition of Jilson P. Johnson to I lie Ifon. the Sprahrr and Mem- bers of the First Congress of the Confidcratc States of Amer- ica — Presented Ftbrvary 18, 1862. Your petitioner, Jilson P. Johnson, of the county of Desha, State of Arkansas, respectfully represents. That an election was held in the 3d Congressional District of said State of Arkansas, composed of the counties of Pulaski, Saline, Dallas, Calhoun, Union, Jefferson, Bradley, Drew, Ashle}"^, Chicot, Desha, Arkansas, and Prairie, on the 6th day of NoveJiiber, 18G1, for a representative to Congress in' accordance with a law of the Provisional Congress of the Confederate States of America, at which your petitioner was a candidate for delegate from said Congressional district, and as such was voted for. That on the lOth day of December, 1861, II. M. Rector, Governor of the said State of Arkansas, issued his procla- mation declaring that your petitioner had received 2,125 votes, and that A. H. Garland, one of the competitors of your petitioner, had received 2,157 votes in said district, and further declaring that the said A. 11. Garland was duly elected representative fiom the said 3d Congressional Dis- trict " to represent the State of Arkansas in the House of Representatives of the Congress of the Confederate States of America, for the term of two years," to commence on the 22nd day of February, 1862. And that the said II. M. Rector, Governor of the State of Arkansas as aforesaid, in his said proclamation as aforesaid, declared that in the county of Arkansas in said 3d district, your petitioner had received 73 votes, and that his said com- petitor, A. II. Garland, had in said county, received 175 votes. Your petitioner states that the said II. M. Rector. Gover- nor of the State of Arkansas as aforesaid, in proclaiming the said vote of the said county of Arkansas, was in great, and as your petitioner thinks Avill be made to appear, mani- fest error, and in proclaiming that the said A. .II. Garland ■was duly elected representative from the 3d district aforesaid in likewise great error. Your petitioner states that Joseph IT. iNIaxwell, Clerk of the county of Arkansas, by B. F. Querterraons Deputy Clerk, on the 13th day of November, 1861, certified that your pe- titioner received but 73 votes in said county, and that the 37 said A. H Garland received but 175 votes in said county, which ■was also certified to by Louis Thompson, J. P., and A. li. McDonald, persons duly authorized by law to exam- ine and certify to the election returns from said county, all of which will be more fully shown by reference to page '• 3" of the record, filed herewith and made part of this petition; but your petitioner further states that a reference to pages " 6 " and " 7 " of the said record will show that on the Itlth day of December, 1861, the said Joseph H. Maxwell, Lewis Thompson and A. H. McDonald petitioned and asked the Governor and Secretary of State of the State of Arkansas permission to withdraw the certificate, " and abstract"" that they made out on the 13th of November, 1861, *Uhat they might be able to substitute the true and correct returns of the votes as found by the poll books in the office in the coun- ty of Arkansas and State of Arkansas," and that they " en- closed under cover of seal " a true and correct abstract of votes, and " despatched Green G. Corson as a messenger to deliver the same " to the Governor and Secretary of State of Arkansas. That they prayed the said Governor and Secretary of State '' to receive and count the correct vote of the county of Arkansas;" and your petitioner further states that as will be seen, by reference to page " 7 " of said record, on the 10th day of December, 1861, Joseph Maxwell, Clerk of said county of Arkansas, certified that on the "examination of the poll books in said county, made on the 13th Novem- ber, 1861, he was engaged waiting on the Circuit Court of the county," that the books were examined by his '-dep- uty, Benjamin Quertcrmons," who is now in the array, that the abstract made out on the 13th November, " contained er- ror," and was not the correct vote as is shown by the poll books which were at that time in "his office " Your petitioner further states, that, as will appear by re- ference to page 8th of said record, on the lOth day of De- cember, 1861, the said Joseph H. Maxwell, Clerk, and Lewis Thompson, J. P., and A. H. McDonald, certified that your petitioner had received 133 votes, and the said A, H. Garland had received 195 votes in the said county of Ar- kansas, at the election held on the 6th day of November, 1861, for representative in Congress, from which it will appear that the true number of votes cast in said 3d Dis- trict was for your petitioner 2,185, and that the true num- ber of votes cast for the said A. H. Garland, in said 3d 38 District, was 2,177, making a clear plurality in favor of jour petitioner of 8 votes. Your petitioner has thus, as he thinks, conclusively sTiown that at said election he received the largest number of votes for representative from the said 3d district, and is truly and fairly the representative elect from said District. lie, therefore, prays, that he may be admitted a repre- sentative from the 3d District of Arkansas to the first Con- gress of the Confederate States of America, and be permit- ted to take his scat as a member of the House of Represen- tatives in said Congress. And, as in duty bound, -will ever humbly pray, J. r. JOHNSON. RESPONSE OF A. H. GARLAND TO PETITION OF J. P. JOHNSON. To the Honorable the Committee of Elections of the House of Representatives of the Congress of the Confed:rate States ef America : The petition of Jilson P. Johnson, of Arkansas, now be- fore you, protesting against my right to a seat in Congress as a Representative of the 3J District of Arkansas, and set- ting forth his chiims to the same, and praying for a decision in favor of his claims, demands from me a response, which I now submit to you for your consideration. It is true there was an election held in said 3d District of Arkansas as said petition states, and the Governor of Ar- kansas, Henry M. Rector, issued his proclamation on the lOth of December, 1861, and in such proclamation, among other things, it was set forth that I was duly elected a Rep- resentative from said district to the Congress of the Con- federate States. On the same day of the issuance of said proclamation, the said Governor, under his signature and official seal, in due form of law, issued to me a certificate of such election, which is now on file with the papers of Congress. I deny, most emphatically, that the petitioner has shown that the Governor of Arkansas committed any error in pro- claiming either the vote of Arkansas county, or the result, of the whole vote ; and I deny, also, that the pretended pa- pers or evidences submitted by petitioner show any such error, in law or in fact. From an inspection of the papers accompanying the peti- tion, it does appear that the certificates of Maxwell, as clerk,, and Thompson and McDonald as householders, were made out and sent to the office of the Secretary of State as alleged. 40 And from those papers it seems that two different returns were made out by the clerk of Arkansas county and sent to the Secretary of State, the first on the 13th of November, 1861, and the other on the Kith of December, 1861. The first return from that county, made out 13th November, * 1861, is the one upon which the Governor made his calcu- tion, and upon which, with the returns from the other coun- ties, the prochimation of tlie Governor and the certificate of election issued. Now, beyond this return, I object to the consideration of any other that may be before the Committee, and for the.sc reasons : By the laws of Arkansas, (Gould's Digest, chapter 62, page 472, section 56,) it is provided that within three days after the polls arc closed, one of the books shall be sent to the tlork of the county, and the other kept by the judges for the inspection of all persons. Section 58 provides that that if the poll-book is not sent in within the time allowed, the clerk of the county shall send a messenger for it, and in that event the polls shall not be compared till the 7th day. Section 60 provides that on the fifth day after the election, or sooner, if all the returns are in, the clerk, with two justices of the peace of the county, if they can be conveniently had, and if not, then two householders, shall proceed to open and compare the several election returns which have been made to his office, and make abstracts of the votes given for the several candidates. The returns from Arkansas county, upon which my election was proclaimed, being made out on / the 13th of November, came directly Avithin the time named in section 58, but those upon which the petitioner claims his election were not made out until a month and four days after the election, and could not, in any view, have been received by the authorities in estimating the vote. And the returns of the 13th November purport to be full and complete, that 16, the vote of the whole county. Section 71 makes it the duty of the Secretary of State to Bend a messenger to every county from which returns have not been received for two mails after the same are duo. In this case no messenger Avas, sent, as none was needed, the returns having been made out and sent up regularly and in due time. By section 73, the Secretary of State, in the presence of the Governor, is required to cast up the votes of the district •within thirty days after the time allowed to make returns, 41 or sooner, if all the returns shall have been received ; and after casting up the vote, the Govenior shall immediately issue his proclamation and a certificate of election. In this instance, all the returns being received, {just a month and four days after the ekdioii,) the Governor, after the vote was cast up, issued the proclamation and the certificate exactly, and in strict accordance with the law ; and certainly it does appear that this is sufficient to decide the case. The re- turns from Arkansas county, dated 13th November, arc made out and certified by the deputy clerk, who, under the law of Arkansas, has as full power to do this as his princi- pal. (See same Digest, chap. 30, page 248, sec. 12 ) Again, when the clerk and the two householders made out one set of returns and sent them to the Secretary of State, their duties were discharged, and as to this matter they wte, so to speak, y?/72di« officio, and the law gives them no authority to meet again and make out new returns. Their act in making out another set of returns was a mere voluntary act, and of no higher authority than if any three private citizens had done the same thing. "Were this not so, an election would be endless. Admit this can be done, and re- ceive these returns and give the petitioner the seat, and I might return to Arkansas and get another certificate by these gentlemen, and come to Congress and deprive him of his seat, and so it might continue without limit. And the receiving of these last returns at the oflUce of the Secretary of State was an act of like character, without au- thority of law. But on what principle of law or reason can we receive contradictory certificates of clerks to these facts — one to md to-day, and to-morrow an entirely different one to some other person ! By this process all the seats in the Congress may be filled by other persons than those now holding them, — and the rights of society itself completely unsettled. Moreover, this last certificate of the clerk does not pre- tend to set forth the particular error complained of. It does not state when, where or how the error was committed, nor when, where and how discovered. In the returns of the 13th November, the mere aggregate vote is given, in the other the vote is pretended to be given by townships, but yet no attempt is made to point out the precise difficulty. So the first certificate is certainly, to say the least of it, of as high grado as the second — is equally in form, and meets the requirements of the law. It cannot be set aside by this 42 other — a mere gratuity, or favor on the part of these gentle- men. It is plain, then, if there is any difliculty in the returns, after the clerks have sent them to the Governor, it is not for the Governor to go behind the certificate of the clerk; he must take the record as it comes to him ; he cannot alter or amend it, but the only way to meet it is to bring the poll- books and the ballots before Congress, and there trace out the error. This jurisdiction rests alone in Congress, and this is the testimony upon which to proceed, upon the fami- liar principle, that the best evidence of Avhich the case will ;ulmit must be furnished; and if you wish to go behind a clerk's certificate and tlie Governor's proclamation and cer- tificate, to correct a mistake in election returns, this is the only evidence that exists upon which to make the correc- tion. From these the clerks in the first instance makes out his estimate, and if error is committed it is there, and the books and ballots compared, alone will show it. In cases of contested elections, the law of Arkansas provides for the opening of the ballots filed Avith the clerk (section 59), doubt- less to prevent the very thing that is attempted to be done here by clerk's certificates, and certificates of private citi- zens, to correct errors or mistakes in counting out the votes. I must protest, upon another strong ground, against this last certificate being received. After the clerk and the householders had performed their duty and sent up the re- turns in my favor, which entered into and formed part of my right to the seat in Congress, I was certainly entitled to notice of the time and place of making this recount. It was a matter of some importance to me to know this and be there, or represented, even if they had the authority to do this at all, which I here positively deny. To be confronted by the opponent's witnesses, or to be notified of the time and place of taking proof to aftect one's claims, have always, in our country, been regarded as the dearest of his rights, and I know of no good reason why it should be disregarded and ignored in a contest for a seat in a nation's Congress. When these gentlemen Avere gravely at work making this recount, I was here at the Capitol trying to do my duty as a member of the Provisional Congress — hundreds of miles distant from the place of their convocation, and was entirely ignorant of the fact, that this great work was going on. If it is admitted, however, that the certificate relied on by the petitioner be correct and legitimate, it only proves at 43 last that my majority in Arkansas County is only 62 votes instead of 102, as set forth in the count of the votes on the 13th November. There are twelve other Counties in the District, and from all of them returns were received and calculated. While this pretended error may have occurred in Arkansas County, others of the same kind may have taken place in other Counties as against me. If the vote of Arkansas County be not as the Governor proclaimed it, may not all or some of the others be misstated ? And while the petitioner rejects one part of the proclamation, he seems to rely upcm it, and make it the basis of his claim here, in all others ! If the question of errors and mistakes in the votes of the Counties be an open one, I simply request the privilege of examining and comparing the votes of the other Counties to ascertain who is really elected. It may be, as there were some seven candidates, that neither the petitioner or myself is elected ! This is strongly impressed upon my mind, as a very intelligent and highly respectable citizen of Union county, Arkansas, in a letter of the 23d ultimo, in- formed me that I had received six more votes in that county than the returns gave me, and this could be proved by the poll- books. This letter I have, and am ready at any time to pro- duce it before the committee. And I must ask the right to have the necessary examination and proof taken in the cause to establish the true state of the case throughout the Dis- trict, if the committee determine there is showing enough to justify an enquiry into the matter at all. This is due to those who claim riglits here, to the people of the District, as well as the whole State of Arkansas. However, the most interesting feature of this remarkably interesting case is this: On the 7th of December, 1861, the clerk of Arkansas county makes out another abstract of the vote, by townships, and certifies to it, and sends it to the Governor of Arkansas, to take the place of the first one made out, dated November 13th, 1861. In this return of the 7th of December, (which, for the sake of designation, let us call it the intermediate reinrn,) the petitioner received 98 votes, and myself 86 votes, which reduces my majority from the first count 14 votes, but still leaves me elected by 18 votes. This certificate is from the same clerk, and prior in time to the one relied on by the petitioner, and is, be- yond question, entitled to aS much consideration, and is herewith presented, marked X, and asked to be received as part of this response ; it is authenticated in the same man- li ncr as the pipers of the petitioner are. His papers are no eviilence, nor is this one allsule I to — but if his are, this is — an'l the result is, I am elected at last, " the best two in three," which, the world over, is considered decisive and conclusive. IP"the eoratnittee will consider his papers, I re- quest a kind consideration of this one, which then must leave the oHlcial acts of the Governor to decide the case. In other words, the very contradiction of these papers must throw such doubts over the matter as to leave it to be de- termined by the certificate — which is the highest and best cvitlehce of the legal right, not to be set aside on mere doubt, but only in cases of clear mistake or fraud, and those cases clearly and fully made out. All official acts have the benefit of the jM-esumption that they are done riglitly, and when they are impeached for fraud or mistake, the particu- lar fraud or mistake must be distinctly pointed out and dis- tinctly proved. Then, briefly, the petitioner's evidence is not admissible for any purpose. If admissible, it proves nothing and docs not meet the case. And, if admissible, I offer evidence of the same dignity ■which contradicts it directly ; and with this contradiction in the case, the certificate of the Governor properly and reg- ularly issued under the law as recited, must be received as conclusive, I beg pardon for saying so much, but I could not well Bay less, I crave the earnest attention of the committee, to the points suggested, and hope they may aid the com- mittee in coming to some just conclusion in the premises. Respectfully, Richmond, February 20th, 1862. A. H GARLAND. 45 A list of votes given on the 6tli day of November, 1861, in Arkansas County, Ark., for Congress, [Here follows the vote by toTvi\BLips.] State of Arkansas, Countv of Arkansas : I, Joseph H. Maxweil. Clerk of the Circuit Court, and tx officio. Clerk of the County Court in and for the County aforesaid, do hereby certify tliat I have exauiined the poll- books of the Congressional election, held in said County on the 6th day of November, 1861, and that the above and foregoing abstract is a full and correct list, and that I found that A. H. Gailand received 186 votes ; J, P. Johnson re- ceived 93 votes; S. F. Arnett received o votes; J. C. Mur- ray received 91 votes; Ilarley, 10 votes; Grace, 4, and James 1. --wv-^-s In testimony -whereof I hereunto set my hand \ Seal. > and affix the seal of my office the 7th December, ^ .^.^ ^ 1861. Signed, JOSEPH H. MAXWELL, Clerk. Here follow the certificates of the Secretary of State, &c., that these returns were received, &c., &c. 9 m 1. Hollinger Corp. pH8.5