must have made a trip up the Illinois river at least six months previous to the August election. It is to be hoped that the House will not sanction this qualification as it will be a great inconvenience to many of the citizens of this State to take the necessary trip up the Illinois river to qualify them for voters.

The vote of Wm. Adkins was rejected, as it appears to some of the undersigned, on evidence equally as unsatisfactory as that relative to Farrington.

or not.

The vote of Robert Smith was also rejected. The only witness who speaks of Smith, is his father, who testifies that he was married, as he thinks, in 1817, but does not recollect whether his son is 21 years of age He docs not believe his son voted as he told him he had not, and was told so by others. He knew one other Robert Smith in Peoria county and had heard of several others in the county. It appears from the poll books that two Robert Smiths voted in Peoria county, but there was no evidence to show that this was one of them. Besides, there was no evidence that he was a minor if he had voted. In the absence, then, of all certain proof that this Robert Smith either voted or was a minor, his vote is declared by the majority of the committee to be illegal, and is stricken from Phelps' vote.

John Martin's vote, who voted for Phelps, was declared by the majority of the committee to be illegal. One witness, Jesse Lee, states that Martin's father stated to him that his son, John Martin, would be 21 in November 1840, and that then he intended to make him a deed for a quarter section of land. James Clark, another witness, says that he has seen the family record of John Martin's father, in the family bible, and that record states that John Martin was born at Argyle, November 4, 1818; and he also states that John Martin's father told him that John Martin was born 4th of November, 1818. This is all the testimony about that voter. The testimony of the witnesses in relation to the statements of the father are flatly contradictory, whilst the family record coincides with the statement of one witness, and proves John Martin to be 21 years of age; yet the majority of the committee most strangely decide this to be an illegal vote.

The case of Horace Adams, a voter for Phelps, is another case of contradictory hearsay testimony, where the majority likewise decide him to be an illegal voter.

The attention of the House is called to the votes of George W. Patton and James Temple, who voted for Purple, and who were decided by the majority to be legal voters. Patton had been on the steamboat Tennessee for a year; and if the same rule of evidence is applied to him which was applied by the majority of the committee in some of the cases decided to be illegal, his vote must also be declared to be illegal. As for Temple, it is clearly proved that he had not his residence in Peoria county at the time of the election, and that he had been at work and had resided in St. Louis, Missouri, since last February, which would of course disqualify him from being a voter.

In the case of John Davis, the witness who impeaches his vote-says that Davis told him he had voted the Whig ticket in August. The pollbooks show this to be a mistake, and that he voted for Purple. It is therefore a bad vote to be taken from Purple, and not from Phelps.

The votes of Enos Rowland and Lewis Lacroy were rejected by the judges of the election, who would have voted for Purple. These votes are declared good by the majority of the committee, and added to the number given to Mr. Purple. The reasons why the judges did not think Lacroy's vote good, are not given; but we think there is no doubt but there were good reasons for rejecting Rowland's vote. He stated to one witness that his wife was then living in Indiana, and that he had resided off and on in the State two years; that he had come down the Illinois river the morning of the day of the election in the steamboat Tennessee, and if he could get work he intended to stay in the county. He left, however, as witness thinks, the next day after the election, and has not been back to Peoria since. It is true. Rowland offered, and we believe it is in proof, did take the oath prescribed by the law as to his residence, &c.; but if he did so, and the facts stated by the other witnesses are true, we cannot but believe that he perjured himself. He had not been in the county twenty hours, and had no intention or expectation of remaining there, unless he got work, which he did not, and left next day; thus showing clearly that he was a transient person, probably in search of work, without any residence in the county of Peoria. And if he had not stated the truth under oath, the law does not require either the judges of election, or this House, to believe his oath. It would seem that coming DOWN the Illinois river that morning had qualified Rowland to vote, whilst Farrington's coming up the Illinois river five months previous, had disqualified him. This case shows truly the great difference between going up and down stream.

The only other voters, whose right to vote we would in this Report ask the attention of this House to, are William H. Fessenden and Charles H. Freeman, who voted for Mr. Purple, and whose votes are decided to be legal by the majority of the committee.

They came to Illinois in the summer of 1839, from Massachusetts, where they left their families, and bought land; and one of them, Fessenden, commenced building a house in Peoria county. They returned to Massachusetts the fall of 1839, with the intention of moving to this State with their families in the spring of 1840. They did move to Pcoria from Massachusetts, with their families, and reached Peoria in May or June last. One of them, Fessenden, told a witness that he had voted in Massachusetts at the November election in 1839. Two witnesses who know them both, positively swear that these men were not residents of the State of Illinois for six months previous to the August election, and there is no testimony whatever to contradict them. And the fact of Fessenden voting in Massachusetts in November, 1839, clearly shows his understanding of their place of residence. If these men are entitled to vote, then it must be, that the fact of their buying a piece of land, and beginning to build a house on it, qualifies them to vote. Whilst on the other hand, although it is proved that George and Christopher Winkler resided in Peoria at the time of the election, yet, because they owned land in Tazewell county, they are disqualified from voting in Peoria. This would seem to be deciding that a man has a right to vote in the county where he has owned land for six months, and no right to vote elsewhere. What is this but a revival in effect of the odious and anti

f

democratic doctrine of a freehold property qualification, which we had hoped was banished from the West forever.

If, then, we depart from the ordinary rules of evidence, and take all the testimony contained in the depositions, subtracting from both Phelps and Purple the votes which are proved to be illegal by hearsay and secondary evidence, the undersigned conscientiously believe that it will not make a difference of two votes either way in the majority of seven, which it appears from the poll-books Phelps received over Purple.

It has been gratifying to the undersigned that nothing has appeared in the depositions, or from any other quarter, during the investigation, which would even look like imputing fraud or unfairness to either Mr. Phelps or Mr. Purple. Nothing has appeared to us but gentlemanly and honorable conduct.

It is perhaps proper here to state, that it was agreed before the committee, that previous to the election, these gentlemen had agreed to vote for each other, and that Mr. Purple had accordingly voted for Mr. Phelps, but that Mr. Phelps, on the day of the election, and for some time previous had been confined to his bed with illness, and therefore had not voted for Purple. Mr. Phelps therefore stated to the committee, that he did not claim the vote of Mr. Purple for himself. This conduct, on his part, is honorable, but it does not appear to us that he or any other person, or even this House, possess the right to strike a legal voter's name from the poll-book. If, however, it should be the opinion of this House, that Mr. Phelps is entitled to his seat by a single vote, we then think it would be his duty, as an honorable man, to resign his place, and let the seat be filled by another election. To admit any other principle than this, would be to permit a member elect of this House, from honorable or mercenary motives, to give away or sell out his seat in this House to one who was not duly elected by a majority of the legal voters of his county.

In the absence, then, of all unfairness, and of all suspicion of fraud in the management of the election, and the sitting member, Mr. Phelps, having received the largest number of votes, as appears by the poll-book, and having honestly obtained his certificate of election from the proper officer, the fullest and most indubitable testimony should be required by this House, before they oust him out of his seat. Our Government is one which is, and we trust ever will continue to be, governed by public opinion. The acts of Legislative bodies should not only be fair and honest, but the motives of the Legislators should be above suspicion. If in a case like the one under consideration, where the right of the sitting member to retain his seat can only be questioned by a resort to hearsay and most doubtful testimony, will it not be setting a precedent to an unprincipled majority in some future Legislature, upon the same grounds to supplant an obnoxious member, and supply his seat with a pliant political partizan, or a subservient personal friend?

We are assembled here as the representative agents and political servants of the People-not as their masters or dictators. No man has a seat in this Hall in his own right, or in virtue of his own act; but each one is here as the selected agent of a majority of his constituents. It is a fundamental principle in our Democratic Republican institutions, that the majority shall rule, and their will be law. Let us not, then, lightly set

aside-and upon loose and uncertain testimony, declare unworthy of credit-the poll-books of our elections, which are the exclusive testimony of the will of the majority. We fully acknowledge the truth that spurious and illegal votes should be rejected; but let us not in our anxiety to detect illegal votes, and to do equity between the parties, give occasion to the enemies of popular rights to say, or to the friends of true liberty to suspect, that we, the Representatives of a free People, from whose decision there is no appeal, make the will of a majority of a county which should govern in the selection of their Representative, yield to the will of a majority of this House, and thus trample, rough-shod, under our feet, the laws of the land, the Constitution of our State, which we have sworn to support, and the will of the People of Peoria, whose right it is in this case to rule, and whose wishes should not be disregarded.

In a contest of this character, the personal feelings of members should not be permitted to exercise the least influence. The claims of Mr. Purple or Mr. Phelps, are but as spars to the mighty vessel which bears them, when compared with the great principle which is involved in this case—the right of the People to be represented by their legally selected agents. It is for them, and with reference to their rights, we must act, as legislators governed by liberal and enlightened views, and foreseeing the consequences of our acts, and as jurors sworn to do justice in the

case.

In concluding this Report, inasmuch as there is so wide a difference of opinion between the undersigned and the majority of the committee, and as the committee were as nearly equally divided as their number will admit, we earnestly request each member of this House to examine the depositions, and to give the case of each voter, whose right to vote is in dispute between the majority and minority of the committee a careful and thorough investigation; not doubting but that this House, if its members make that investigation, will come to the conclusion which has been arrived at by the undersigned-that from all which appears in the poll-books and depositions, William J. Phelps is the legally elected Representative of the County of Peoria.

JOHN J. HARDIN,
PETER MENARD, Jr.
A. GRIDLEY,

•NOS

WM. H. HENDERSON.

Which was read, and,

On motion of Mr. Lincoln,

Said reports were referred to a committee of the Whole House. Mr. Peck moved that the House now resolve itself into a Committee of the Whole on the subject of the reports.

Mr. Webb moved to re-consider the vote on referring the foregoing reports to a committee of the Whole House; which was not agreed to.

When the House resolved itself into a Committee of the Whole; Mr. Murphy of Cook in the Chair, on the matter of the contested election of Peoria county, and after some time spent therein, they rose, reported progress, and obtained leave to sit again.

A message from the Senate by Mr. Berry, their Assistant Secretary: Mr. Speaker: I am directed by the Senate to inform the House of Representatives that they have adopted the following resolution:

Resolved by the Senate, the House of Representatives concurring herein, That there shall be elected at the present session of the General Assembly, three competent persons, well skilled in the law, to revise and condense all the laws of this State of a general nature, that were in force at the commencement of this session of the General Assembly, and that they be required to present the same to this General Assembly, before the end of this present session, for their consideration and approval; in the adop tion of which resolution, they ask the concurrence of the House of Representatives.

The House adjourned to 2 o'clock, P. M.

TWO O'CLOCK, P. M.

House met pursuant to adjournment.

Mr. Kitchell moved to suspend the rules of the House to enable him to make a report from the Judiciary committee; which was not agreed to. Mr. Murphy of Perry demanded a call of the House; proceedings under which having continued for some time, were,

On motion of Mr. Kitchell,

Suspended.

Mr. Kitchell, on leave, introduced the following report from the Judiciary committee:

The committee on the Judiciary, to whom was referred a resolution of the House, directing them to enquire and report "whether the eleventh or twelfth General Assembly should have convened under the late Proclamation of his Excellency, the Governor of Illinois; and whether, if the Legislature, as at present organized, be legal and constitutional, it should not adjourn sine die, on some day previous to the first Monday in December next, and be called a special session; and the regular session of the twelfth General Assembly commence on the said first Monday in December, agreeable to our State Constitution;" Report that they have considered the subjects of the foregoing resolution submitted to them, and are of opinion that the present members now assembled are constitutionally the first session of the twelfth General Assembly of the State of Illinois, and are properly convened under the late Proclamation of the Governor-that the present Assembly being called at an irregular time under the provision of the 9th section of the 3d article of our Constitution, shall be called a special session, and recommend that it adjourn without day on Saturday, the fifth of the present month.

Mr. Dougherty, from a minority of the same committee presented the following report:

The minority of the committee on the Judiciary, to whom was referred the following resolution, to-wit:

Resolved, That the committee on the Judiciary be instructed to enquire whether the eleventh or the twelfth General Assembly should have convened under the late proclamation of his Excellency the Governor of Illinois; and whether if the Legislature as at present organized be legal