FOSTER Vs. COVODE.

MARCH 26, 1869.-Laid on the table and ordered to be printed.

Mr. CESSNA, from the Committee of Elections, made the following

REPORT.

The Committee of Elections, to whom were referred "so much of the proclamation of the governor of Pennsylvania, dated November 17, 1868, as to the election of representatives in the 21st district of said State, and the letter of said governor, dated February 23, 1869, relative thereto, together with the papers referred to in said letter, with instructions to report to the House what person, according to said proclamation, letter and papers, is entitled, prima facie, to represent said 21st district in the 41st Congress, pending any contest that may arise concerning the right to such representation," submit the following report:

It appears, from the proclamation of the governor, referred by the resolution, that when the governor of said State issued his general proclamation, on the 17th of November, 1868, declaring who had been elected to represent the several districts of the State in the 41st Congress, he declined to declare any one elected in the 21st district, stating: That no such returns of the election have been received by the secretary of the Commonwealth as would, under the election laws of the State, authorize me to proclaim the name of any person as having been returned duly elected a member of the House of Representatives of the United States for that district.

The general proclamation of the governor being a blank, so far as the 21st district is concerned, the committee next turned their attention to the letter of the governor of Pennsylvania, which is as follows:

PENNSYLVANIA EXECUTIVE CHAMBER,

Harrisburg, Pennsylvania, February 23, 1869. SIR: I have the honor to transmit herewith additional affidavits and evidences of fraud submitted to me in regard to the election of member of Congress in the 21st congressional district of this State.

These affidavits were taken before officers properly authorized to administer oaths, and indicate the election of Hon. John Covode.

Most respectfully, your obedient servant,

Hon. EDWARD MCPHERSON,

Clerk of the House of Representatives, Washington, D. C.

JOHN W. GEARY, Governor of Pennsylvania..

The signature of the governor to this document was duly certified by the secretary of the Commonwealth and the seal of the State attached. It is claimed, by Mr. Covode, that this letter gives him a prima facie right to the seat-it being a supplemental proclamation, as he alleges, and intended to be the decision of the governor, that he, Covode, was elected in the 21st district.

By the general election law of Pennsylvania, Purdon's Digest, 8th edition, section 63, it is provided, where two or more counties compose a district for the choice of a member of the House of Representatives,

that after an election has been held, the judges of election in each county having met, the clerks shall make out a fair statement of all the votes which shall have been given at such election, within the county, for every person voted for as such member, which shall be signed by said judges and attested by the clerks; and one of the said judges is to take charge of said certificates of votes, and produce the same at a meeting of one judge from each county, at such place in such district as is, or may be, provided by law for that purpose. The judges of the several counties having met, are required (section 64) to cast up the several county returns and make duplicate returns of all the votes given for such office of representative in Congress in said district, and of the name of the person elected, and to deposit one of said returns for said office of representative in the office of the prothonotary of the court of common pleas of the county in which they shall meet, and to place the other return in the nearest post office, sealed and directed to the secretary of the Commonwealth.

The said return judges are also required (section 65) to transmit to the person elected to serve in Congress, a certificate of his election within five days after the day of making said return.

On the receipt of the return of the election of members of the House of Representatives of the United States, as aforesaid, by the secretary of the Commonwealth, the governor is required (section 113) to declare by proclamation the names of the persons so returned as elected in the respective districts, and also to transmit as soon as conveniently may be thereafter the returns so made to the House of Representatives of the United States.

The papers referred to the committee not embracing any of the certificates required by law to be given by the return judges of the counties and district, the investigations of the committee were necessarily confined to the letter of the governor and the accompanying papers.

If it was intended by the governor to decide in this letter that John Covode was duly elected from the 21st district of Pennsylvania, and if he did intend his paper or letter of February 23, 1869, as supplemental to his general proclamation, or as his only proclamation in regard to the election of representative in said district, then a majority of the committee are of opinion that he had a right to so decide under precedents heretofore furnished by the House. (Vide Butler vs. Lehman, Contested Election Cases in Congress, p. 353.) In the case cited, William F. Packer, governor of Pennsylvania, set aside all returns upon the ground of fraud, and decided upon ex parte evidence who was elected. The House sustained the action of the governor by allowing Mr. Lehman to hold the seat during the contest.

As there is no prescribed form in the law of Pennsylvania for the proclamation, nor any time fixed at which it shall be issued, nor any specified mode of publication required to be made, it is difficult to see that anything is required by the proclamation named in the law more than a decision as to who is duly elected in the respective districts of the State, and notice of such decision given to the parties elected and to the House of Representatives.

A majority believe that the committee have but little discretion in the premises. The language of the resolution under which we are acting requires us to report to the House what person is entitled, prima facie, to represent the 21st district of Pennsylvania in the 41st Congress, according to the papers referred to us. It would seem from this resolution of reference that the House was satisfied that some one had a prima facie right to the seat on these papers, and that the only inquiry for us was as to the person so entitled.

The committee are further sustained in this view from the fact that at the time these papers were referred, an effort was made in the House to refer other papers seeming to be connected with the case, and this effort was unsuccessful. This effort was subsequently repeated with a like result.

It is conceded that an election was held in this district, and that some person was duly elected, and the inquiry that we are to make seems to be, Who is that person? It is not pretended, neither is there any evidence before the committee showing that there were any candidates for Congress in that district except John Covode and Henry D. Foster, and the committee are not required to decide who was legally elected, but simply to determine what person appears to have the better right, and is entitled prima facie to represent said district pending any contest that may arise. From this standpoint, a majority of the committee have found no difficulty in coming to the conclusion that John Covode is that person. The proclamation of the governor of Pennsylvania, his letter, and the affidavits, constitute the evidence submitted by the House to the committee, and from these the committee are required to determine the question submitted to them. The first of these, viz., the proclamation, disposes entirely of the claim of Henry D. Foster; he nowhere appears again except in the unfavorable light presented by the affidavits. The second, viz., the governor's letter, seems to show the election of Mr. Covode, and having been made evidence together with the accompanying affidavits, for the purposes of this inquiry, by the resolution of the House, establishes his prima facie right to the seat.

The affidavits referred by the same resolution of the House to the committee would seem to warrant the decision reached by the governor in the premises. They show very many irregularities and several gross frauds perpetrated at election precincts in that district.

These frauds were of a character so glaring that they cannot be defended by any one having a regard for the purity of elections, or any respect for the doctrine that the will of the majority, as expressed by the people at the ballot-box, shall be the law of the land.

It is not believed by the committee to be their duty, nor is it regarded under the resolution of the House as at all necessary, to examine into the reasons which influenced the governor of Pennsylvania, nor to review his action in the premises. Were this required we might recite the case already cited, Butler vs. Lehman, in which the governor of Pennsylvania went behind all returns and certificates in order to prevent the success of a gross fraud.

The frauds in this case, as shown by the affidavits, were but little, if any, less flagrant than they were in that.

No fraud attempted upon the people of a district should ever be sanctioned. When fraud appears it should defeat all who seek to take advantage of it, or attempt to shelter themselves behind it. In the eye of the law fraud spoils everything it touches; even the broad seal of a Commonwealth is crumbled into dust, as against the interest designed to be defrauded. It is not protected by record, judgment, or decree, but whenever and wherever it is detected its disguises fall from around it, and it stands exposed to the rebuke and condemnation of the law.

In the case of Morton vs. Daily, Contested Election Cases, page 403, the governor had given a certificate to Mr. Morton; he afterwards discovered a fraud and revoked it, and gave a second certificate to Mr. Daily; the House sustained the governor. In the present case it is not claimed that the governor of Pennsylvania gave a certificate to any one for the 21st district, prior to the 23d of February, 1869. His action of

that date was, therefore, not so much a departure from the usual practice as was the action of the governor of Nebraska, in the case of Morton vs. Daily, which received the sanction of the House. But, as has already been remarked, it is not the province of this committee to consider or decide this question. We are instructed to report from particular evidence sent to us by the House, and the conduct of the governor is not for our consideration. We are to determine what person, from the evidence submitted, is prima facie entitled to this seat. tions as to the legality of this election, and the whole merits of this controversy, are to be the subjects of future inquiry.

There are two parties claiming this seat; both cannot be contestants; one or the other should be admitted before the contest begins; the district should not remain unrepresented.

If the committee have erred in their conclusions, the sooner the contest begins the sooner the legal right will be established.

The committee, therefore, recommend the adoption of the following resolutions:

Resolved, That John Covode, upon the letter of the governor and papers relating to the election in the 21st congressional district of the State of Pennsylvania, referred by the House to this committee, has the prima facie right to the vacant seat from that district, and is entitled to take the oath of office and occupy a seat in this house as the representative in Congress from said district without prejudice to the right of Henry D. Foster, claiming to have been duly elected thereto, to contest his right to said seat upon the merits.

Resolved, That Henry D. Foster, desiring to contest the right of Hon. John Covode to a seat in this house as a representative from the 21st district of the State of Pennsylvania, be, and he is hereby, required to serve upon the said Covode, within twenty days after the passage of this resolution, a particular statement of the grounds of said contest; and that the said Covode be, and he is hereby, required to serve upon the said Foster his answer thereto within twenty days thereafter; and that both parties be allowed sixty days next, after the service of said answer, to take testimony in support of their several allegations and denials; notice of intention to examine witnesses to be given to the opposite party at least five days before their examination, but neither party to give notice of taking testimony within less than five days between the close of taking at one place and its commencement at another, but in all other respects in the manner prescribed in the act of February 19, 1851.