JOURNAL OF THE LONORABLE SENATE, JUNE SESSION, 1833: WEDNESDAY, JUNE 5, 1833. This being the day prescribed by the Constitution for the General Court of New-Hampshire to assemble, His Excellency, the Governor and the Honorable Council came into the Senate Chamber, and the following gentlemen, elected senators, took and subscribed the oath of office agreeably to the provi sions of the Constitution, viz. From Senatorial District— No. 2, Hon. Abel Brown, No. 12, Hon. Jared W. Williams. His Excellency the Governor and the Honorable Council then withdrew. The Senate was called to order by the Clerk. On motion of Mr. Barton The senate proceeded to the choice of a chairman, and Mr. Carr was elected, and took the chair. On motion of Mr. Farrington The senate proceeded to the choice of a President, and the Hon. Jared W. Williams was elected. Mr. Williams addressed the Senate, signifying his acceptance, and took the chair. On motion of Mr. Carr The Senate proceeded to the choice of a clerk, and Winthrop A. Marston was elected. branches of the legislature have assembled, are organized and are ready to receive any communications he may please to make, in which they ask the concurrence of the Senate. On motion of Mr. Corbin Resolved, That the senate do concur in the appointment of a committee agreeably to the above resolution. Ordered, That Mr. Farrington be joined to said committee, on the part of the senate. Ordered, That the clerk notify the House of Representatives accordingly. A message from the House of Representatives by their clerk: "Mr. President,-The House of Representatives have passed a resolution, adopting the joint rules of the two branches of the Legislature for the year 1832, for the present session, or until others be adopted, in which they ask the concurrence of the sen ate." On motion of Mr. Farrington Resolved, That the senate do concur in the passage foregoing resolution. of the Ordered, That the clerk notify the House of Representatives accordingly. Mr. Barton from the committee, to whom was referred the communication of Warren Lovell, Esq. together with other pa pers relative to the election of senator in senatorial district No 6, with instructions to report thereon, made the following REPORT. The Constitution declares, that the Senate shall be final juds es of the election, returns and qualifications of its own member as pointed out in this constitution. By making the Senate find judges, as well of the returns as the qualifications of its mem bers, there can be no doubt, that it was intended to confer on th body a supervisory power, in such cases, over the doings of th Governor and Council, whose duty it is, to examine the retur ed copies of the records of the votes in the several towns, and fourteen days before the first Wednesday of June, to issue sun mons to such persons as appear to be chosen Senators by a majo ity of votes, to attend and take their seats in that body, leavin it to the final decision of the senate to determine, whether th prima facie evidence of the returns (on which the Governor an Council alone rely to determine, who appear to be elected) W correct, or whether a deficiency or want of formality in the turns had left a vacancy to be supplied, or caused summons to issued to a person who did not, in fact, receive a majority of t votes. The Committee had, therefore, no difficulty in arrivi at the conclusion, that the case under consideration is precis one of those contemplated in the provision of the Constitution, which makes the Senate the final judges of the election of their own members. Having arrived at this conclusion, neither the comparative merits of the different persons voted for, nor any extraneous circumstance could make any part of the inquiry of the Committee. The only question which seemed to come within the scope of their inquiry was one of fact merely, viz :-"Did the individual claiming a seat in this body from District No. 6, receive a majority of the votes cast in said District ? It appears by the Secretary's record of the proceedings of the Governor and Council and by the returns themselves, that there are returns from all the towns in District No. 6, and that all are made in form prescribed by the Constitution; that. the whole umber of votes returned amount to 3039 making 1520 necessafor a choice; that Samuel Tilton has 1472 and that there are 12 scattering votes that Warren Lovell has 1519, one vote less han the requisite number for a choice; and that William Lovell as 36 votes which 36 votes were returned by the town clerk of he town of Eaton. It further appeared to your committee from he testimony of the said town clerk and select men of Eaton, that he 36 votes, returned from the said town of Eaton for William ovell, were actually given, declared in open town meeting by he Moderator thereof, and recorded in the town records by the erk of said town, as given for Warren Lovell, and that an eror in transcribing the return from the record occurred, by hich it was made to appear to the Governor and Council that votes were given for William Lovell, which were in fact given r Warren Lovell. Had these 36 votes been correctly returned the Governor and Council, it would have appeared that Warren Lovell had received 1555 votes, 35 more than was neessary for a choice and 71 more than were given for all other persons. By a law of this state passed June 17 1801, it is enacted, "that the Clerk of any town neglect to make return of the votes of ach town agreeably to the Constitution, for all or any of the ices aforesaid, he shall, for each and every such neglect, forkit and pay a fine not exceeding one hundred dollars, nor less han twenty dollars, to be recovered by indictment, the one moithereof to the use of the prosecutor, and the other moiety ereof to the use of the town to which such delinquent clerk belong.' Although the law makes it the imperative duty of Town Clerk to return the votes within a prescribed time and prescribed form, and subjects him to a penalty, in case of dect, yet, your Committee are not aware, that it is any where vided, or even intimated, in any part of the Constitution or any law of this state, that the election of any person shall be made void, or his seat declared vacant, who shall have received a majority of the votes of his district, in cousequence of the neg lect of the town clerk to make a true return of the votes, or of a want of a formality, or any error in the return itself. The returning officer, for such error or neglect makes him self liable to prosecution and may be held responsible for the penalty, but the people should not thereby be deprived of their choice, nor the person receiving a majority of votes, be depriv ed of his seat in consequence. It could never have been the intention of the framers of the Constitution to place within the hands of the returning officer the power to defeat the choice of the people, as is manifest from that clause of the Constitution which makes the Senate fina judges of the returns, as well as of the qualifications of its mem bers, such a practice is not only not warranted by the letter of the Constitution but is at war with the very spirit of our institutions subversive of the rights of the people and tending to great abuse and corruption. With these general views of the subject and believing it the duty of the Senate to carry fully into effect th voice of the people of District No. 6, as expressed by their vote on the second Tuesday of March last, this report and the a companying resolution are submitted for the consideration of th Senate. CYRUS BARTON, for the Committee. Resolved, That Warren Lovell, having received a majori of the votes cast for Senator in District No. 6, is duly entit to a seat in this body. On motion of Mr. Corbin Resolved, That the foregoing resolution be adopted. Resolved, That the returns of votes for senators in the sever senatorial districts in this state be referred to a select committ of three with instructions to examine and cast the same, and port to the senate, whether any vacancies exist, and if so, in wh senatorial districts. Ordered, That Messrs. Carr, Blodgett and Corbin be committee. A message from the House of Representatives by their cle "Mr. President,-I am directed to inform the senate, that House of Representatives are now ready to meet the senate Convention to proceed in the elections agreeably to the pro ions of the Constitution." And he withdrew. On motion of Mr. Barton Resolved, That a committee consisting of one be appointed inform his Excellency the Governor and the Honorable Coun that the senate have had under consideration the case of the elec tion in senatorial district No. 6, and find that Warren Lovell, Esq. of Meredith is duly elected, and entitled to a seat in this body. Ordered, That Mr. Barton be said committee. On motion of Mr. Carr Resolved, That the Senate will now meet the House of Representatives in convention. IN CONVENTION. The Senate and House of Representatives being met in convention in the Representatives' Hall, the secretary of state came in and laid before the convention the returns of votes for Governor from the several towns and places in this state; and also the returns of votes for counsellors in the several counsellor districts in this state. On motion of Mr. French of the House of Representatives The convention proceeded to open, read and count the votes for Governor from the several towns and places in this state, and completed the same. On motion of Mr. Farrington of the Senate Resolved, That the returns of votes for governor be referred to a select committee of three with instructions to compare and cast their numbers, and report to the convention thereon. Ordered, That Messrs. Farrington of the Senate and Vose and Locke of the House of Representatives be said committee. On motion of Mr Rogers of the House of Representatives, the convention rose, and the Senate returned to their chamber. IN SENATE. A message from his Excellency the Governor by the Secretary of state. "Mr, President,-I am directed by his Excellency the Governor to introduce to the senate the Hon. Warren Lovell, who has taken and subscribed the oath of office as senator for district No. 6, agreeably to the provisions of the constitution. Whereupon the Hon. Warren Lovell was introduced to the Senate and took his seat. On motion of Mr. Farrington The Senate then Adjourned. THURSDAY, JUNE 6, 1833. The Senate met according to adjournment. Mr. Carr from the select committee appointed to examine and cast the votes given in the several senatorial districts in this state, reported, "That they had attended to that duty and that from an examination of the returns made to the Secretary's office in |