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The minority of the committee on Elections, having had the case of Messrs. Colburn and Hersey, claimants of the seat of representative from the town of Belfast, under consideration, are unable to coincide with the majority of said committee, and ask leave to give their reasous for such disagreement in the following
REPORT. Messrs. Colburn and Hersey both appeared before your committee, claiming to be representatives froin Belfast. Each had credentials signed by the town officers in due form.
Now as the town of Belfast is entitled to but one representative; and as it was incumbent upon your committee to decide between them, an investigation was commenced.
The claimants stated to your committee, that there was certain evidence in the town of Belfast, which would be useful and necessary; and upon making a corresponding report to the house, an order was granted, authorizing your committee to send for persons
Accordingly the parties with their witnesses, appeared before your committee on the 29th ult.
It appeared in evidence, that Mr. Colburn was elected representative from Belfast, in September last--that in the early part November following, he went to New York for the purpose of completing certain arrangements which he was making with a gentleman, preparatory to entering a partnership there, in the lumber business-that he soon returned ; and the latter part of the same month (November), broke up housekeeping, resigned the office of town clerk, and delivered up the books and papers to the selectmen -dissolved all his business connections with the town of Belfast, and taking with him all his family (except one son, a young man who had been for some time previous, and still continues to be, absent from his father, as an assistant in a store,) and also taking his furniture and other property (except such things as were not worth removal, which were left in the custody of his brother-in-law, Thomas Marshall,) he proceeded to the city of New York, became a member of the aforementioned firm, and set up housekeeping. He remained in this situation till the 5th of April last, when he returned to the town of Belfast.
A short time previous to his return, however, the same board of selectmen which called and presided at the town meeting at which Mr. Colburn was elected—Thomas Marshall, the particular friend and brother-in-law of said Colburn, being chairman_issued their warrant calling a town meeting the 6th of April, to elect a new representative; it being a very general opinion, that by his continued absence, Mr. Colburn had vacated his seat. At this town meeting, which was well attended by both political parties, Mr. Hersey was elected and received the usual certificate of such election.
It also appeared by the evidence of three or four individuals, who casually inquired of Mr. Colburn previous to his departure in the fall, what they should do for a representative, that he stated in reply, he should be back.
It further appeared, from the evidence of his most intimate friend and brother-in-law, the aforementioned Thomas Marshall, that he had a conversation with Mr. Colburn, relative to his removal, last fall; and that Mr. Colburn then told him that certain proposals had been made to induce him to go to New York, and embark as a lumber merchant there. That Colburn said that if he found the business equalled his expectations and hopes, he should remain there ; is it did not, he should return. This same witness kept up an active correspondence with his brother-in-law, Mr. Colburnreceiving from him no less than a half a dozen letters, during the four or five months of his residence in New York and who to use his own language, said, he “ probably knew as much about his affairs, as Mr. Colburn did himself,”-stated that he inferred from
these letters, that his friend and correspondent would not return to Belfast if his business succeeded in New York; that he had no doubt from what he knew, that his continuance in that city depended upon a contingency, viz: the prosperity of his lumber business. This witness further stated, in reply to a cross-examination, that no letter previous to the 20th of March, mentioned any thing about Mr. Colburn's return to Belfast—that the letter of that date, did mention the subject of his return, and inquired if he, the witness, could procure him a house. It also stated as the reason of his return to Belfast, that his business operations had not succeeded to his mind.
The above, the minority of your committee consider to be a fair, unvarnished statement of the facts in the case, as it appeared in evidence before them.
Now it must be apparent to the mind of every one, that the main, indeed the only point at issue, is, whether Mr. Colburn, by a four or five months residence in New York, at the time and under the circumstances named, rendered himself, constitutionally, ineligible to a seat in this House?
The minority of your committee, according to what they deem the true construction and apparent meaning of the constitution, cannot decide otherwise, than that Mr. Colburn has by such breaking up his residence in Belfast, become ineligible.
Art. 4, part 1st, sec. 4, of the constitution of Maine, reads as folllows:
“No person shall be a member of the house of representatives, unless he shall at the commencement of the period for which he is elected, have been five years a citizen of the United States—have arrived at the age of twenty-one years—have been a resident in this state one year, or from the adoption of this constitution ; and for the three months next preceding the time of his election shall have been, and during the period for which he is elected, shall continue to be a resident in the town or district which he represents.”
We cannot but believe that the framers of the constitution intended that there should be a material difference between the words "citizen" and "resident," as they are used in this short section.
Among the qualifications for a representative, above enumerated, are, that he must be a "citizen" of the United States, and a "resident” (one actually residing) of this State for the period of one year.
Now it is the confident opinion of the minority of your committee, that Mr. Colburn, by his removal and absence, till the fifth day of April, under the circumstances mentioned, had not been a “resident" in this State, "one year” according to the meaning and true intent of the constitution.
We believe, that that instrument requires that any man, to be eligible to a seat in this House, must, at the commencement of the period for which he is elected, not only have been a "citizen" of the United States for five years, but must also have been a “resident” of this State, one entire year without interruption, “at the commencement of the period for which he is elected.” It is a well setiled point in law, that a man's residence is established in the place or town where his family resides, except in cases where his family has abandoned him.
And further, that when a map leaves a town, with his family and property, for an indefinite period, and dissolves his business connections with that town, he loses his “residence," and begins 10 acquire a new one, in the town to which he may remove.
In the case of Green vs. Windham, reported in the thirteenth volume of the Maine Reports, the Supreme Court decided, that “whoever removes into a town for the purpose of remaining there an indefinite period, thereby establishes bis domicil (or place of residence) in that town. It is not necessary that he should go
will a fixed resolution to spend bis days there. He might have in contemplation, many contingencies which would induce bim 10 go elsewhere. Some persons are more restless in their character, and migratory in their habits, than others; but they may and do aequire a domicil wherever they establish themselves for the time being, with an intention to remain, until inducements may arise to reinove."
With regard to the evidence before your committee, we are induced to lay much stress upon that of Thomas Marshall. He testified with evident reluctance; and such adınissions as were at
all unfavorable to Mr. Colburn, were made only in answer to rigid questioning
In every case where evidence is admitted, the minority of your committee believe that a just discrimination should be used in summing up that evidence; that there should be taken into the account, not only the witness's general standing and character for veracity, but that we should also include his known, openly avowed feelings, and relative position to the parties. In a case where a witness is known to be an intimate family connection—a political friend, as well as a personal one—it is but justice to allow that every admission of his, which militates against the interests of the party, in favor of which he is naturally prejudiced, possesses double force to what it would if his prejudices—his political and personal sympathies, were enlisted on the opposite side.
This Thomas Marshall was chairman of the board of selectmen, which issued the warrant for a new election ; was in close correspondence with Mr. Colburn, the whole time he was in New York ; was his intimate and very particular friend; knew all about his business and intentions; and with all these opportunities for knowjog the actual state of affairs, and well knowing how injurious his movements would be to the claims of his friend, (if indeed, at that time, Mr. Colburn or his friends entertained any notion of claiming his seat, which we very much doubt,) he proceeded voluntarily to call a town meeting to choose a representative to fill the vacancy. Neither of the selectmen, nor indeed, did any other person, so far as we can learn, remonstrate against, or make any opposition to the meeting. Each party nominated a candidate and supported him with their votes. Mr. Marshall binisels, voting for the candidate which bis party supported, in opposition to Mr. Hersey.
Upon a careful, somewhat extended, and as we think, candid examination of the subject, your committee are irresistably compelled to conclude that the acts of Thomas Marshall, especially when connected with his verbal testimony, furnish evidence of the strongest and most conclusive character, against the claims of Mr. Colburn.
JABEZ D. HILL.