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these three precincts were sworn by a legal officer, as though they intended fraud from the very start. In justification of the committee's decision, he quoted many precedents for the rejec tion of votes, and though it was late in the Congress, eighteen months after the election, he demanded prompt action, and concluded: "Looking over the elections for the last few years in the Territories, it does seem to me that a certificate of election from a Territory has become almost prima facie evidence of a great fraud committed.”
The beautiful superstructure erected by the ingenuity of the gentleman from the state of Indiana was adroitly attacked by the wide-awake member from the state of Maine, Mr. Washburn: Mr. Speaker, not only is all this testimony ex parte (taken alone by one party), but a great part of it is composed of affidavits, sworn to before a notary public who, the gentleman says, has no right to administer an oath in the Territory of Nebraska. And, Sir, there is not a single fact upon which he relies for the material points in his case, but what is hearsay. There is not a single fact of importance touching the precincts of Florence and Monroe but what comes from the declarations of third parties. There is not a scintilla of testimony here which is not of that character; whereas the rebutting testimony is that of witnesses who lived within the precinct, and who were sworn and crossexamined and stated facts within their knowledge. The sitting delegate did not see fit to rely upon the evidence of the runners and agents of the contestant, men who lived in Omaha and could know nothing certain; but he went to Florence and to Monroe and to Cleveland where the facts transpired. He took the testimony of the men, of all others in the world, who knew exactly all the facts in the case.
In reply to Davis of Maryland, Mr. Washburn said:
The gentleman piles up precedents as high as Olympus, but I will never receive hearsay testimony to affect the rights of parties. It is not law, it is not sense, and indeed, Sir, it is not good nonsense. [Laughter.] No man can stand upon it. I have known several persons of the surname of Twist and Weller, and I want the gentleman to inform me whether it is impossible, or even improbable, that among all the Twists there is not an Oliver, or among all the Wellers there is not a Samuel? [Laughter.] And if so, why
may they not be in Nebraska, as well as anywhere? [Laugh-
After Mr. Washburn had examined precedents and testimony, he was followed by Mr. Boyce of South Carolina, who stated that formerly the law in Nebraska did not close the polls at 6 P. M.; that the young men working at Cleveland Hotel building made their homes wherever they found work; that there were nearer one hundred than merely forty resident voters at Monroe and that fifteen votes were cast at Florence after six o'clock. Many other members participated in the discussion, and when it was closed, "confusion so confounded" led to an effort to declare the seat vacant, and finally a compromise laid the whole subject on the table, leaving Ferguson in the chair; and the day before the session and Congress closed, a resolution passed awarding Chapman six thousand dollars, salary and mileage. Thus endeth the second contest.
From the number of bills introduced and arguments made before the committees on Public Lands, Indian Affairs, Judiciary, Public Buildings, and others, there is every reason to believe that the legislature did not overestimate the "capacity, integrity, and fidelity" of their delegate.
Oct. 11, 1859 (election) to May 13, 1860.
Mr. Estabrook was born in 1813 in the state of New Hampshire. At the age of forty-two years, in 1855, he settled in the Territory of Nebraska. He was a student of Dickinson College, Pa., and a law student of Chambersburg, in the same state. He graduated in 1839. His time was occupied as a clerk at the Brooklyn navy yard for a short time, as an attorney at Buffalo, N. Y., for one year, and fifteen years at Geneva Lake, Wisconsin. His elections were: Attorney General of Wisconsin, member of the Wisconsin legislature, and member of the Nebraska Constitutional Convention of 1871. His appointments were: Attorney General of Nebraska by President Pierce, 1855, and Commissioner for Codification of Laws of Nebraska, 1871. A good citizen and an honorable lawyer may become his epitaph. On the 18th day of May, 1860, Mr. Campbell of Ohio, from the committee on elections, called up the following resolutions:
RESOLVED, That Experience Estabrook is not entitled to the seat as delegate from the Territory of Nebraska to the Thirty-sixth Congress of the United States.
RESOLVED, That Samuel G. Daily is entitled to the seat as delegate from the Territory of Nebraska to the Thirty-sixth Congress of the United States.
This was a unanimous report, agreed upon alike by Democrats and Republicans. Mr. Estabrook belonged to the former and Mr. Daily to the latter party. The election had taken place on October 11, 1859. The canvassing board gave Mr. Estabrook 3,100 votes and Mr. Daily 2,800, or a majority for Estabrook of 300 votes. Of these 292 were reported coming from Buffalo County, but of that number 238 were cast in Kearney City which is not in the county of Buffalo. Mr. Campbell said: "The testimony discloses the fact that there were not over eight houses, not over fifteen residents, and not one acre of cultivated land, or a
farm house in the neighborhood of Kearney City. Nor was Buffalo County organized." Therefore "the entire vote was rejected as illegal and spurious." All of the spurious votes were given to Estabrook and not one to Daily. The vote of Calhoun County was rejected because it was attached for voting purposes to Platte County, and though having only two families in the northwest and four in the southeast part, had returned thirtytwo votes, twenty-eight for Estabrook and four for Daily. Mr. Campbell said:
As to the vote of Izard County, the committee rejected the twenty-one votes cast for the sitting member, and the three cast for the contestant, as the entire vote purporting to have been polled in that county was a fraud, and that no such vote was ever polled. * * *If there had been any settlers there, if there had been one acre of cultivated land, if there had been a single voter in the county, if there had been an election precinct, and if there had been officers who held an election there, how easy it would have been for the sitting delegate, after full notice, to have brought one of these twenty-four voters, one of these election officers, to show that there was a settlement and that an election had been held and that there were votes cast in the county of Izard.
In L'Eau-qui-Court County, 128 votes were reported, all for Mr. Estabrook, while a member of the legislature swore that there were only from thirty to thirty-five votes in the county. The names of members of Congress were entered on the poll book as Howell Cobb and Aaron V. Brown, and two messengers who procured a copy of the poll book from the clerk were mobbed by parties who declared, “as they were parties to the fraud, they would never suffer any evidence of it to leave the county." These figures of 128 were reduced to sixty, and a majority of 119 votes were awarded to the contestant on a final adjustment of all the votes cast. In conclusion, Mr. Campbell said:
The learned and able members of the committee who are friends to the sitting delegate,—and I trust all the members of the committee were disposed to do that which was simply right,-could not find in the case evidence enough to found a minority report on.
Mr. Estabrook desired to make a motion to recommit the case to the committee. Mr. Campbell said:
The motion which the gentleman is about to make has been made in the house once, and rejected there, or referred to the committee of elections, and argued and rejected there.
Mr. Gartrell desired the sitting member should bave more time, and said:
I desire to say in justification to myself that while I voted in favor of ousting the sitting delegate and giving the seat to the contestant, I did so upon the ground that the record evidence before the committee disclosed that the contestant was clearly elected. I did not vote for ousting Mr. Estabrook with any idea that he or his friends in Nebraska had perpetrated any fraud.
Finally, when Mr. Estabrook desired to speak more at length on some other day, and thought he could clear the Territory of charges of fraud, and admitted that "there always is irregularity on the frontier and you ought not to hold the frontiers of the country to the strict rules of law," the House desired him to close his remarks at that time. But when he declined to do so the final question was ordered, and Mr. Daily was sworn in on the 18th of May, 1860. That being the date of the convention that was to nominate Mr. Lincoln, Mr. Estabrook exclaimed, "I thank the House for making me a sacrifice to the gods of the Chicago convention." Thus endeth the third contest.