Mr. PAINE addressed the House for an hour. [His remarks will be found in the Appendix.] Contested Election. SPEECH OF HON. H. E. PAINE, or WISCONSIN, July 11, 1866. The House having under consideration the following resolution, reported from the ComElections Renolued, That Hon. John L. Dawson is entitled to retain hisscatas Representativein ths 39th Congressfrom the 21st district of the State of Pennsylvania. Mr. PAINE. Mr. Speaker: There was no minority report submittedin this case. Itwonld seem, there ore, to be unnecessary for the committee to consume any time in the discussion of the report which they have submitted; and I would not occupy the attention of the House for a single minute in the argument of the case were it not for the fact that m colleague on the committee, the Gentfrom Pennsylvania, [Mr. ScorIm.n, ] and other members of the House from that State, have intimated a desire to debate the resolutions which have been presented, and to advocate the claims of the contestant to the disputed seat on this floor. It becomes necessary, therefore, that an opportunity should be afforded to them to present the reasons which, in their minds, are stron enough to satisfy them that the report made in the case is incorrect, and that the contestant should have the seat. I shall, therefore, be obliged to explain to the House somewhat in detail the grounds upon which the majority of the committee have based the report which.they have submitted. There are other reasons, which 'will appear as I proceed with the statement of the case, why this discussion on the part of the committee may be carried to some length. This was a case in which the soldiers of the State of Pennsylvania, under a law peculiar to that State, were allowed while in actual service in the field, to vote for members of congress; and the dispute between the contestant and the sitting member hinges for the most part upon the soldiers’ vote. I will state the points which were made by the contestant. He alle ed, in his notice of contest, that the return judges of Westmorelaud county unlaw fully rejected certain military returns certified to them by the rothonotar of that county; that the same judges omitte to includein their canvass certain other military returns for that county, filed in the office of the secretary of the Commonwealth; that fraudulent and illegal votes were cast for John L. Dawson at certain polls within the district; that the return judges of Indiana and Fayette counties omitted to compute certain military returns for those conn ties, filed in the office of the secretary of the Commonwealth; and that, of the aggregate of votes, Smith Fuller had 11,068 and John L. Dawson 10, 848. He claimed, in argument, that 807 lawful militarywotes were returned which were not embraced in the canvass of the district board, and that of these votes 254 were cast for Smith Fuller, and 113 for John L. Dawson. He also claimed in argument that, through an error in the computation of the return judges, John L. Dawson received 3 instead of 2 votes from company E, 105th regiment; that in footing up the votes of Mr. Dawson they also made a mistake of l in his favor; and that ifthese corrections were made in Mr. Dawson’s majority of 125 and the military votes given in the fore oing table correctly counted, the result would be as follows: Mgorlty of uncounted military votes for Smith uller 141 Correctedmajority of John L. Dawson. Majority for contestant. He also insisted in the argument that if the case should be decided upon technical grounds, 11 specified military returns, giving Mr. Dawson a majority of 31 votes, and alleged to have been actually included in the canvas would be rejected, and Mr. Dawson’s official majority of 125 thereby reduced to the extent of31 votes. He also insisted that the law was disregarded in the canvass of the home vote of Westmore land count, of which Mr. Dawson received a majority 0 1, 477; that the returns of this vote were characterized by irregularities and frauds; and finally that the sitting member had in his answer failed to deny the averments of the notice, particularly the avernment “that of the votes cast at the October election, 1804, Fuller received 11,068 votes and Dawson 10, 848, ” and could not, therefore, dispute them in this contest. These were the positions taken by the contestant. On the other hand, the sitting member, in his answer and argument, insisted that the notice of contest was not served within the time limited by law; that it was never served on him personally or otherwise; that the contestant, on the rst argument, abandoned all the averments of the notice except the 1st, 2nd, 5th, 6th, and 11 th; that the 1st was alone entitled to consideration, and would not, if true, reduce the majority of the sittiu member below 60; that the 2nd, 5th, and 6th avermcuts were bad, and the proof respecting returns not received by the proper officer before issuing the certificate ofe ection insufficient, because it was neither alleged nor shown that the returns in the office of the Secretary of the Commonwealth had been “bond fide forwarded by the judges in the manner prescribed by law;” that the 11th was not a particular specification of any ound' of contest and was insufficient; that if sulficient it was not. sustained by the proofs; that even if an unrestricted reexamination of the entire vote should be made, the sitting member would nevertheless retain his seat; thatit was neither proven that all the votes lawfully polled were produced in evidence, nor that those produced "I evidence were counted by the return judges; that the committee could only count those votes which were received too late to be counted by the return judges, and which, if received in time, could have been properly included in their returns; that certain randulent votes were cast and counted for the contestant: and that certain “false, fraudulent, imerfect, and illegal returns” were made in his avor and included in the canvass of the district board; and, finally, that no lawful votes were excluded from that canvass.Mr. Speaker, in what I shall have to say to the House on this case, I shall not consider the points which were made by the sitting member. I shall only consider th se points upon which the contestant relied be ore the commit tee; and of these there were two, upon which the contest before the committee turned. In the 1st place, the contestant insisted that certain votes which were cast by the soldiers, and which if counted would have been favorable to him, were not counted. And, 2nd ly, he in sisted in the argument, although he made no such point in his notice of contest, that certain votes which were actually counted for the sit ting member in the canvass, were unlawful and ought not to have been counted. I shall ask the attention of the House today to those 2 points of the contestant, and to those onl. 1st, then, I ask your attention to those votes which he insists were not counted, but ought to have been counted. He presents to the House through the committee, 45 returns claimed to be the returns of soldiers’ votes cast at various military election precincts by soldiers of the 3 counties of that district, givin an aggregate majority of 141; and he asserts t iese votes were not counted, and the canvassers did not embrace them in the can vass on which the Governor predicated his pro clamation giving the sitting member his seat. Among these 40 ‘five returns, the committee found a few absolutely perfect in form. They found a large number which, although not regular in form, were sufficient in substance to authorize the committee, in their own judgment, to count them. But. there were among these 45 returns, 17 which the committee were unable to consider worthy of being embraced in the canvass. Of these 17 the committee unanimously agreed to reject 11 wholly or in part. I will not say the committee unanimously agreed to reject them, but I will say that those members of the committee who agreed to this report were unanimous in the exclusion of 11 of these 17 returns. There were 6 of the 17 returns respecting which the committee were not unanimous. And the reason the committee were not unanimous was this: a principle had been established in a contest from the State of Pennsylvania, already determined by this House, in accordance with the recommendation of a majority of the committee, to which the minority could not assent. I refer to the case of Koontz vs. Coffroth. When that case was decided it was the opinion of the minority of the committee of lections that certain military re turns were unlawfully exeluded from the can vass; that the irregularities for which they were rejected by the majority of the committee and finally by the House were not substantial defects, but mere informnlities, which, under the law of Pennsylvania, were not. sufficient grounds for their exclusion. That opinion still remains unchanged. In the case of Koontz vs. Coffroth certain rejected returns ought in the judgment of the minority to have been counted. Of those members of the committee who have agreed to the report made in the case now before the House in conformity with the ruling of the House in thatease, 2 reserved to themselves the right. to vote in the House on the present case in accordance with their own convictions of the law and the facts. If this difference of opinion among the members of the committee would have made any difference in the result, 2 who sustained the report and now sustain it would have voted for the contestant. I am one of these. If the principle laid down by the minority of the committee and repudiated by the House in the case of Koontz rs. Cotfroth could have changed the result in this case, I would have felt not only authorized but.bound as a member of the House to adhere to the opinion of the minority, and to vote to admit Smith Fuller to the contested seat as the lawfully chosen Representative of the 20 tirst district of the State of Pennsylvania in the 39th Congress. Butit so hapens that whether in this case we adhere to the ruling of the majority of the committee in the case of Koontz vs. Coffroth, or adhere to the opinion of the minority, we are still obliged, in my judgment, to award the con.ested seat to the sitting member. The result is this: while I, in accordance with the views maintained by the minority in the case of Koontz rs. Cofli oth, would have counted these 6 rejected returns, the majority of those who agreed to the report now before the House were in favor of excluding them. If the position taken by the majority in that case is correct, if the report recommended by the majority of the committee and adopted by the House in that case is to prevail in this, then, in the judgment not only of the majority, but of the minority, including myself, the sitting member is entitled to retain his seat bya majority of 21 votes. Ifthe House should reverse its decision made in the case of Koontz rs. Coffroth, and hold that the rejected votes should have been counted as the minority in that case recommended, the sitting member would be entitled to his seat by a majority of 4 votes. I will not now go minutely into these points of difference between the majority and the mine irty in the case of Koontz vs. Coffroth, because in a subsequent part of my argument. it will be necessary to consider in detail the several returns which that difference of opinion affected. I only allude to this now to show the effect this difference would have in the case before the House. Now, this alternative majority of 21 or 4 is based on the supposition that nothing is to be deducted from the vote which was given to the sitting member by the official canvass. I have said that the 2nd of the points made by the contestant and requiring the consideration of the House was this, that certain military votes were, in fact, counted by the canvassers for the sitting member, which ought not to have been counted, which were not lawful votes. I will indicate the 11 returns alleged to contain these votes: Weqtmm‘elnncodunty. Dawson. Fuller. 1. CompanyB, 142dregiment.. 8 3 2. CompanyE. 206thregiment 'if) 24 3. CompanyK. 206th regiment. 13 8 4. 16 the avalry regiment. l. 0 Indiana oomlhl. Lookout Mountain hospital. Company(i. 76th regiment. CompanyG, 11thregiment. CompanyA, 156thrcgiment. Fayettecounty. WQQTU‘ cm 9. CompanyE. 140thrcgiment. 4 10.Carver hospital. 0 11.7 the avalry regiment. 0 45 Now, Mr. Speaker, in order to warrant this deduction from the official vote of the sitting member on account of ballots alleged to have been unlawfully cast or counted, it was necessary that 3 things should have been done by the contestant. in the 1st place he should have given notice by some allegation in his notice of contest that he intended to insist upon an objection of that nature to the validity of the sitting member’s title to his seat. In the 2nd place he should have shown that the votes which he disputed were really illegal votes and ought not to have been counted; and in the 3rd place he should have shown that they were, in fact, counted. Now, he did not show that a single one of these votes was counted. There was no sufficient proof before the committee that any of these votes to which he objected were embraced in the official can vass. The only evidence that they were actu ally counted, aside from what appears in the table on age 389 of the contestant’s 2nd book, an relates exclusively to Westmoreland county, is to be found in the fact that the returns themselves are on file in the office of the secretary of the Commonwealth or county prothonotary. But while it might well be claimed that the presence of regular returns in these offices would beprima facie evidence that they were embraced in the canvass, how can it be said that the presence of irregular returns would be primafacie evidence that they were counted? It. seems to the committee that the presumption would be in the opposite direction. This paper, exhibited on page 38'.) of the 2nd book, is inadmissible because only signed by one of the judges; but it would not be evidence before the committee even if signed by all the county judges. for the reason that when a congressional district is composed of 2 or more counties there is no authority for depos iting any return or statement of the county board in the office of the prothonotary, as will be more fully shown hereafter. But, more than that, he did not allege in his notice of contest that he should rely upon any such objection as this to the validity of the title of the sitting member to his seat. Unless, indeed, it be in the general allegation that the sitting member received 10, 848 votes, and the contestant 11,068 votes, which allegation is the 11th in the notice of contest, you cannot find any averment sufficient to entitle the contestant to introduce proof upon this point. I will not discuss the validity of that allegation as a foundation for such proof. because it will devolve upon the chairman of the committee, [Mr. Dawns, ] as apart of his duty, to consider this as well as the other points which were made in this case by the sitting member, while my own remarks will be confined to the position taken by the contestant. But, granting for the sake of argument, that there is in this 11th allegation sufficient to constitute a basis for the introduction of such proofs as this, I have further to say that the contestant did satisfy the committee that of these 11 returns of votes which he insists were counted, but ought not to have been counted, four, and only four, were upon their face irregular and illegal, and could not of themselves justify the canvassers in counting the votes which they contained. These 4 returns were Damion. Fuller. 1. Lookout hospital. 1 0 2. CompanyC, ththregiment. 3. CompanyE. 140thregiment 4. 7th Pennsylvania cavalry. I do not say that:satisfactory proof was made before the committee that in the case of these 4 returns the votes which were alleged to have been given for the sitting member were not, in fact, legally cast and returned for him; but I do say that, taking into consideration merely the proofs which were placed before the committee by the contestant in the printed and manuscript returns, I find no evidence that these votes were legally cast or returned. The sitting member offered no proof on this subject. Indeed, the contestant never, until near the close of the 13 days consumed in the trial of this case, alluded to this claim to reduce the official voteof the sitting member. But for the sake of the argumentI will assume that those 6 votes wereillegal and ought not to have been counted. There still remains the difficulty that there is no proof that they ever were counted; and I suppose the chairman of the committee, [Mr. DAWES] when he comes to discuss this part of the case, will satisfy you that no foundation was laid in the pleadings for the introduction of any such proof on the trial. Of course, then, it was impossible for the committee to deduct these votes from the aggregate majority of the sitting member. The committee found, therefore, that the sit ting member had a majority of 21 votes. Ad hering to the principle which I maintained in the case of Koontz vs. Coffroth, I would have given him a majority of 4 votes, because I believed thatthe returns for'McClel Ian hospital, battery H, 4th artillery; Camp Parole, Car ver hospital, field and staff 206th regiment, and company A, 155th regiment, ought to be embraced in the canvass. These gave the contestant an aggregate majority of 17 votes. Inasmuch as there is no minority report in this contest, I should, under ordinary circumstances, be content to stop here and await the arguments that may be adduced by those who are to speak on behalf of the contestant before saying anything further in the case. But, sir, a remarkable document has been laid upon the desks of the members of this House since Our report was submitted. I am compelled to call your attention to this document, which is entitled “A short review of the report of the ComElections, ” and is signed “Smith Fuller, contestant.” The charges made by the contestant against the committee are so erroneous and offenive that they could have no palliation except in the disappointment naturally felt at an unexpected result of such a close and protracted contest, a result doubtless believed to be irrec oncilable with the law and the facts. I know that under the influence of these grave charges Representatives have been led to entertain opinions respecting the contest now pending before the House which have very much astonished me. For example, a Gentfrom the State of Pennsylvania, for whom I entertain the very highest respect, and whom every gentleman of this House esteems as one of the most honorable of men, stated to me, to my face, that he did not believe this to be the report of the ComElections, and that he understood it was repudiated by every member of the committee except the chairman and myselfl It becomes necessary for me, therefore. in view of the charges against the committee made in this pamphlet by Smith Fuller, the contestant, and in view of declarations made by members of this House which have repeatedly come to my ear, to submit the statement to which I now invite the attention of the House. And I ask permission of the House at this point to produce and read in this case certain portions of the journal of the ComElections. I believe it can only be done with the consent of the House. No objection was made.