REPORTS OF CONTROVERTED ELECTIONS IN THE HOUSE OF REPRESENTATIVES, OF THE Commonwealth of Massachusetts, FROM 1780 TO 1852 : THE CASES FROM 1780 TO 1834, INCLUSIVE, COMPILED FROM THE JOURNALS, FILES, AND THE CASES FROM 1835 TO 1852, INCLUSIVE, IN PURSUANCE OF A RESOLVE OF THE GENERAL COURT, PASSED ON THE 18TH OF MAY, 1852, BY LUTHER S. CUSHING, CHARLES W. STOREY, AND LEWIS JOSSELYN. BOSTON: WHITE & POTTER, PRINTERS TO THE STATE. US 12585.16 MAY 16 101 Y. Miss Mary Wodrnan. Commonwealth of Massachusetts. In the Year One Thousand Eight Hundred and Fifty-Two. RESOLVES For the Publication of the Reports of Cases of Contested Elections. Resolved, That L. S. CUSHING, C. W. STOREY, and LEWIS JOSSELYN be, and they hereby are, appointed Commissioners to prepare and publish a new edition of the Reports of Contested Elections, prepared and published by said Cushing in pursuance of an order of the house of representatives of March 1st, 1831, including therein reports of all the cases which have occurred since the time of said publication. Resolved, That the said Commissioners include in, or append to, the publication hereby authorized, all opinions given by the supreme judicial court at the request of either branch of the legislature, relating to the several subjects contained in the same, and also a digest of all the decisions of the supreme judicial court concerning the qualifications of voters, and the duties of town officers in presiding at elections. Resolved, That fifteen hundred copies of the publication hereby authorized be printed by the printers to the state, and be distributed in like manner with other books printed by order of the legislature. [Approved May 18th, 1852.] ADVERTISEMENT. In the year 1834, the first mentioned of the commissioners named in the foregoing resolve, then clerk of the house of representatives, in obedience to an order of the house, compiled and published a collection of the decisions of the house, in cases of controverted elections, from the adoption of the constitution to the year 1834 inclusive. The plan, upon which that compilation was executed, was fully explained in the advertisement prefixed to the work. The present compilation consists of a reprint of the cases published in the former, making nearly one-half of the contents of the volume, with the addition of those which have since occurred; and as the same plan, substantially, has been followed, in the publication of the later cases, the advertisement to the first edition has been retained, as explanatory of the method upon which the whole work has been executed. While, however, the same general plan has been pursued, in making the present compilation, the commissioners have thought proper to vary therefrom in certain respects, chiefly in phraseology, which they will here explain. In the first place, they have substituted the word "controverted," in the title, for the word "contested," and have made a similar change, wherever the latter word occurred in the body of the work. This change has been made in conformity with the established meaning, which belongs and is invariably given to these words in England, from whence the essential elements of our parliamentary and election law are derived, and where election law constitutes a distinct and very important, as well as copious, branch of jurisprudence. There the word "contested" is applied exclusively to what takes place at the poll. An election is said to be "contested" when there are opposing candidates for the suffrages of the electors. The word "controverted" is applied to an election, the validity of which is called in question in the house. An election is contested at the poll, and controverted in the house. The word "contested" has the same meaning in this country, and is used in the same sense; but it is also used frequently in the sense of the word "controverted," as applicable to an election case, where, in the opinion of the commissioners, the latter term would be more appropriate. Secondly, in speaking of the proceeding upon a report, they have used the phrase "agreed to," instead of the word "accept;" for the reason that the latter is not a parliamentary term, and is besides somewhat equivocal in its meaning; since it may signify the mere receiving of the report as a document, with quite as much propriety, at least, as the adoption of its contents or conclusions. The term "agreed to " is not only sanctioned by parliamentary usage, in this country, as well as in England, but is more significant and appropriate. The use of the former term is peculiar, it is believed, to New England. Thirdly, the commissioners have substituted the words "petition" and "petitioners," for "remonstrance" and "remonstrants," wherever the latter terms have been used to denote the instrument by which, and the person by whom, the validity of an election is controverted. A remonstrance, strictly speaking, simply objects to the doing of something by the legislature or other body, to whom it is addressed; and in the British parliament is not receivable, unless it contains also a prayer; in which case, it is received and considered as a petition. The instrument, by which an election is questioned, is not a remonstrance merely; it prays that the election complained of may be set aside, and the member returned deprived of his seat, for certain reasons alleged, which it prays may be investigated by the house; or it prays that the petitioner may be admitted to a seat, on the ground that he was duly elected, and ought to have been returned. The use of the word "remonstrance," to denote an election petition, is of recent origin and probably confined to this state. For the reasons suggested, the commissioners have thought themselves justified, if not required, to depart from the current phraseology, in the particulars alluded to. Besides these changes, the commissioners have made two or three others, to which they call attention. The cases contained in the first edition have been carefully revised, and, in almost every instance, a new abstract or head note has been prepared, or the original one much enlarged, so as in either case to bring out more distinctly and fully than before the points decided. Another change consists in the addition of further explanations to some of the earlier cases, which will, it is hoped, be found to render them more valuable as precedents. Lastly, the commissioners have appended, to some few of the cases, particularly the older ones, notes illustrative of important differences between our election law, and that of England. The commissioners have felt themselves somewhat embarrassed in fixing upon the best mode of publishing certain cases, in which the committees on elections have thought it necessary to report the evidence, particularly of the witnesses, at very great length. On the one hand, it was out of the question, without greatly increasing the size of the volume, to reprint the whole evidence; while, on the other, it was difficult either to select or condense, without incurring the risk of doing injustice to the case, the committee, or the house. The commissioners could only exercise their best jugdment, according to the circumstances of each particular case. In some instances, therefore, they have themselves condensed and stated the evidence; in others, they have selected and published the most material parts; in others, again, they have stated merely the conclusions of fact, drawn by the committees from the evidence, as well as their conclusions of law thereupon. In the two latter |