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   NOTE.--On account of their unusual length and importance the footnotes are printed in type larger than that ordinarily used and at the end of the main part of the paper.

   The territory of Nebraska was represented in the federal Congress by five successive delegates chosen at seven elections. Samuel G. Daily was elected for three successive terms; each of the other four delegates was elected but once. Four of the seven elections--the second, third, fourth, and fifth--were contested. Probably it did not seem worth while to contest the first election inasmuch as scarcely four months of the term remained; as a Democratic governor had the authority to declare which of the candidates was elected; as the three leading candidates were all Democrats; as the House of Representatives, which would decide the contest, was strongly Democratic so that neither of the candidates might expect partisan advantage; and as the candidate who on the face of the returns had the most votes had interests in Nebraska City which brought him the backing of the powerful Democrats of the metropolis of the territory.1 In the meantime the fierce controversy over the location of the capital had established as fierce a feud between the North Platte and South Platte sections of the territory. The territorial canvassers of the second territorial election were all partisans of the North Platte, and they manipulated the returns in such a manner as to exasperate the friends of Hiram P. Bennet, the South Platte candidate for the office of delegate. The composition of the House of Representatives of the thirty-fourth Congress was such as to encourage Bennet to appeal to it. He had been a Whig and was now classed



as "anti-Nebraska", which meant near-Republican. One hundred and eight members of the House were temporarily tagged with that name, seventy-five were Democrats, forty Know Nothings, and eleven were floaters. Nathaniel P. Banks was the candidate of the Republicans for the office of speaker, and William A. Richardson, who had been the Douglas leader in the House in the struggle over the Kansas-Nebraska bill and was governor of Nebraska in 1858, was the principal Democratic candidate. After one hundred and twenty-nine ballots had been taken the Democrats seemed so near success that they courted the adoption of a rule that the candidate receiving a plurality of votes after three more ballots should be declared elected. But on the one hundred and thirty-third ballot the Know Nothings threw enough votes to Banks to elect him--a hundred and three, to a hundred for Aiken, Democrat. Alexander H. Stephens, who became famous in the controversy over secession, espoused the cause of Bird B. Chapman, the North Platte and Democratic candidate, with influence enough to permanently seat him. The two leading candidates for a seat in the thirty-fifth Congress were both Democrats, and as the House was Democratic by a clear majority, the contest was between sections. Chapman unsuccessfully contested the election of Fenner Ferguson who was the South Platte favorite. In the thirty-sixth Congress there was a plurality of Republicans which made a contest by Samuel G. Daily against Experience Estabrook easy, and with a large Republican majority in the House of the thirty-seventh Congress, Daily's contest against J. Sterling Morton was never doubtful. That was the last contest, because thenceforth, though Republican ascendancy was not quite safe in the territory, it had become safe at Washington. In 1862 Daily's majority over John F. Kinney, the Democratic candidate, as counted, was one hundred and thirty-six, and Phineas W. Hitchcock's majority over Dr. George L. Miller was 1,087. Territorial government was lost in that of the state three days before



the expiration of Hitchcock's term. Conditions were so unsettled that there were irregularities and frauds, more or less gross, at every territorial election, though there was improvement toward the end.2
   Napoleon Bonaparte Giddings, a resident of Savannah, Missouri,3 but an occasional squatter in Nebraska City, with some interest in its town site, was chosen a delegate to Congress at the first election, held December 12, 1854--eight days after the opening of the second session of the thirty-third Congress--and was sworn in on the fifth of January, 1855.4 Bird B. Chapman, a resident of Elyria, Ohio, though a political squatter in Nebraska,5 was elected a delegate at the election held November 6, 1855, in accordance with the law governing elections, passed by the first territorial assembly, March 16, 1855. Though Chapman's election occurred eight months after the commencement of the thirty-fourth Congress,6 it was in time for him to take his seat at the opening of its first session, December 3, 1855. 7 The second territorial assembly undertook to keep carpetbaggers out of this office by enacting that "No person shall be elected a delegate to [the] Congress of the United States from this territory who shall not have resided therein at least twelve months before the time of voting." 8 The organic law only required that a delegate should be a citizen of the United States, so that this attempted restriction probably had only a moral effect. It was passed too late to apply to Chapman's first term, but it may have had something to do with his defeat at the next election. An act of the second territorial assembly, passed January 26, 1856, changed the time for holding general elections to the first Monday in August. Accordingly, Fenner Ferguson was elected a delegate to Congress on the third of August, 1857, five months after the commencement Of the thirty-fifth Congress.
   On the face of the returns of the election of 18599 Experience Estabrook, who had been the first territorial attorney and was a resident of Wisconsin at the time of his



appointment, received a certificate of election from the canvassing board and answered to the roll call at the opening of the first session of the thirty-sixth Congress on the fifth of December, 1859. Samuel G. Daily's contesting memorial was filed February 16, 1860, and the resolutions to unseat Estabrook and to seat Daily in his place were passed May 18, 1860; so that Estabrook served two months and a half more than the moiety of the term. An act of the sixth territorial assembly, passed January 13, 1860, under which Daily was chosen for a third term, provided "that the annual election for delegate to Congress from Nebraska shall be held at the annual election for 1860 and every two years thereafter; that the term of office of said delegate shall commence on the fourth of March next after his election." Thenceforth the delegate from Nebraska was elected in time to be in at the commencement of his term. The act of Congress of March 3, 1817, which provided that "such delegate shall be elected every second year for the same term of two years for which members of the House of Representatives are elected", probably served the purpose for which the provision that "the term of office of said delegate shall commence on the fourth of March next after his election" was intended.
   The following excerpts from the official record of the Daily-Estabrook contest afford very useful and interesting information about the population of the frontier counties of the territory and the manner of conducting elections in them at a time soon after the territorial government was organized:



[Click here or on map for a full size 1859 Nebraska Map]



36th Congress,
1st Session.




Mis. Doc.
No. 12






The Election of Experience Estabrook, of Nebraska

February 16, 1860.--Referred to the Committee of
Elections February 23, 1860.--Ordered to be printed,

To the House of Representatives of the Congress of the United States:
The undersigned, Samuel G. Daily, respectfully represents: That at the election for delegate to the thirtysixth Congress of the United States, held in the Territory of Nebraska on the 11th day of October, 1859, Experience Estabrook and himself were candidates in said Territory; that upon an abstract of returns filed with the governor of said Territory, the said experience (sic) Estabrook has received a certificate of election, and now holds a seat in your body by virtue thereof.
The undersigned further represents that. the returns of said election were not correct, and that he, and not the said Experience Estabrook, received, in fact, a larger number of the votes legally cast in said Territory at that election than the said Experience Estabrook, and is, therefore, entitled to the seat now occupied by said Experience Estabrook as the delegate of the Territory of Nebraska, in the thirty-sixth Congress.
He also states that, in pursuance of the requirements of the act of February 19, 1851, regulating contested elections, he served duly a notice of contest upon the said Experience



Estabrook, setting forth specifically the grounds thereof; that answers were received and testimony taken under the provisions of said act; which notices, answers, and testimony, with documents relating to the contest, have been duly transmitted to the Clerk of the House of Representatives, and are now in his possession.
   Wherefore, referring to the notice and all other papers as a part of this memorial, the undersigned asks that the subject may be inquired into by the House according to the Constitution and the laws, and the usual course of proceedings on the part of the House in like cases, and that he may be declared entitled and be admitted to a seat in the House as the delegate duly elected from the Territory of Nebraska to the thirty-sixth Congress.
Washington City, February 16, 1860.

   SIR: You are hereby notified that I shall, on the 16th day of February, 1860, between the hours of 9 a. in. and 5 p. in., take the deposition of Charles H. Comly before Daniel W. Iddings, mayor of the city of Dayton, State of Ohio, at his office in said city; said deposition to be used in the matter of my right to the seat you now occupy as delegate from Nebraska to the thirty-sixth Congress.
Hon. Experience Estabrook.

   I hereby acknowledge service of the above notice. February 6, 1860.

   Byron G. Daniels, of the city of Washington, District of Columbia, being duly sworn, on oath says, that at the request of Samuel G. Daily he served notice on the Hon. Experience Estabrook, within named, on the 6th day of February, 1860, at the said city of Washington, and that the within is an exact and true copy of said notice.

   Subscribed in my presence and sworn to before me this 7th day of February, 1860.
SpacerJNO. T. JOHNSON, J. P. [L. S.)

   SIR: You are hereby notified that I shall, on the 16th



day of February, 1860, between the hours of 9 o'clock a. m. and 5 p. m., take the deposition of Charles H. Comly before Daniel W. Iddings, mayor of the city of Dayton, State of Ohio, at his office in said city; said deposition to be used in the matter of my right to the seat you now occupy as delegate from. Nebraska to the thirty-sixth Congress.
Hon. Experience Estabrook.

   SIR: A notice, of which the above is a copy, was left at my room in this city on the evening of the 6th of February at about 7 1/2 o'clock p. m. by a gentleman calling himself Daniels. This notice is defective in many particulars, among which I will point out specifically the following, to wit:
   1. It is not served "at least ten days before the day on which the testimony is to be taken."
   2. The officer before whom the testimony is to be taken does not reside in the district w[h]ere the contested election was held.
   3. The place of residence of the witness is not stated in the notice.
   I shall therefore disregard the notice altogether.
   If testimony is taken by virtue of the notice, will you be pleased to annex to it this my protest.
   I have the honor to be, sir, very respectfully, your obedient servant.
Daniel W. Iddings, Esq.,
SpacerMayor of Dayton, Ohio.

   Evidence in the Nebraska Contested Elect-ion Case.

   Deposition of Charles H. Comly, taken in pursuance of the notice hereto affixed, to be used on behalf of the contestant in the matter of contest pending in the thirty-sixth Congress between Experience Estabrook, sitting delegate from the Territory of Nebraska, and Samuel G. Daily, contestant.
   Charles H. Comly, of lawful age, being first duly sworn, deposes and says:
   Interrogatory 1. What is your name, age, and place of residence?
   Answer. Charles H. Comly; am twenty-three years old, and reside, at present, in Dayton, Ohio.



   Interrogatory 2. State if you were at Fort Kearny, Nebraska Territory, on the 11th day of October, 1859, and, if so, was there an election being held there at that time for delegate to Congress; and, if so, who were the candidates being voted for; how was the election conducted; who were the judges and clerks of election; was there any fraudulent voting; and, if so, by whom and for whom, and how many; and state all the particulars concerning the voting and management of the polls on said day at that place.
   Answer. I arrived at Fort Kearny, on my return from Pike's Peak to the States, on the 10th day of October, 1859, and remained there until the morning of the 12th. There was an election held there for delegate to Congress (Experience Estabrook and Samuel G. Daily being the candidates) on the 11th of October, at which I was present. I remained near the polls all day. I saw early in the morning that frauds were being committed, hence I watched the proceedings much closer than I otherwise would. The first fraud that attracted my attention was a soldier from the fort voting. After that I noticed, I presume, (I cannot be certain as to the number,) eight or ten different soldiers, or men clad in the United States military uniform, who said they were soldiers, vote in regular form. After that I saw two of the same men vote again, and one of the two voted once afterwards. Each time they changed their attire, but were poorly disguised. I further noticed quite a number of emigrants, who were coming from and going to Pike's Peak, vote; among them were James Low, Stephen L. Inslee, and William Harlan, all of whom voted for Experience Estabrook, and they were all illegal voters; they were returning in company with me from Pike's Peak. I also saw a number of others vote for Experience Estabrook whom I know had left Denver City, Kansas Territory, but a short time before I did. Every emigrant that was passing or stopping there that day was urged to vote, and the most of them did so. The regular order of voting was first to visit the trading-post known as "Jack's Ranche," take a drink of liquor and a ticket, then go across the road and vote; this programme was filled by nearly every one I saw vote. During the day, at intervals, I saw Dr. Henry, Jack10 (the proprietor of the ranche} and one of the clerks in the store engaged in making out lists of names. After



writing awhile one of them would put the list in his pocket and go over to the polls and go inside, and from conversations that I subsequently heard between the parties, I am well satisfied in my own mind that the said lists were copied into the pollbooks and returned as voters. The returns, if I remember rightly, gave 288 votes, all for Experience Estabrook. To the best of my knowledge and belief I do not think there were over sixty different persons at or around the polls during the day. About 6 o'clock p. m. the polls were declared closed, and the ballot-boxes were deposited at "Jack's" store. A short time after the polls were closed two men came in from Plum creek, I believe, and desired to vote; the ballot-boxes were again taken to the polls and the ballots were received
   I am satisfied in my own mind that one of the clerks was under twenty-one years of age, and that another one of the clerks (or probably one of the judges) was an unnaturalized foreigner. This I learned through conversation with parties acquainted with them. The judges and clerks of the election were, in my opinion, all of them more or less under the influence of liquor, and one or two of them were drunk and unfit for any kind of business. As an evidence of this, one of them (I think by the name of Burkh) signed his own name to one of the poll-books or returns, and his wife's name to the other. The error was corrected before me the next day, the said Burkh declaring that, "by God he wanted people to known that his wife had a finger in that election!" Of the men around the polls during the day I do not think that more than one half of them were residents of the county or precinct; the balance being emigrants.

SpacerNEBRASKA TERRITORY, November 12th, 1859.
   SIR.: Having been informed that you have received from the governor of this Territory a certificate of your election as delegate to the thirty-sixth Congress, I hereby give you notice that I intend to contest your election as such delegate before the House of Representatives of the United States, upon the following grounds:
   1. That an abstract of votes, to the number of two hun-



dred and ninety-two, purporting to have been given for you in the county of Buffalo, was transmitted to the governor and unlawfully counted in your favor, although it was well known to the board of canvassers that the said county had never been organized as a county, and consequently that no votes could have been lawfully polled therein; that of these pretended votes, fifty-four, or thereabouts, in number, were counted as having been polled at two pretended precincts, under the names of Nebraska Center and Centralia precincts, in the county of Buffalo, and the residue at a place called Kearny city, without the bounds of the said county, and not included within the bounds of any county; that at the aforesaid two precincts many persons, well known not to possess the requisite qualifications to entitle them to vote anywhere in the Territory, were permitted to vote; that at Nebraska Center aforesaid, one of the pretended judges of election was a citizen and resident of the State of Wisconsin, and one of the clerks a minor; that a majority of the voters were non-residents, and known to be such by the judges of election; that in one instance the judges waited on a non-resident confined by sickness, who had been in the Territory only about four days, and received his vote; that in Kearney city precinct there are not twenty-five persons having the qualifications of electors, or who in fact appeared as voters at the polls held therein, most of the votes, numbering two hundred and thirty-eight, pretended to have been there taken, having been fraudulently stuffed into the ballot box, and the rest having been deposited by soldiers and other persons attached to the army of the United States stationed at Fort Kearny, some of whom voted several times, and by transient persons known to the judges to be such; that the judges and clerks, while acting as such, were grossly intoxicated; that an hour after the polls had been closed it was again opened and other votes received; that other persons were permitted to have access to the ballot-box after the poll was finally closed, and to add to the poll lists fictitious names, which was done to the number of more than two hundred.
   2. That votes to the number of ten, purporting to have been taken in Saline county, and twenty-eight votes purporting to have been cast in the county of Calhoun, and twenty-one votes purporting to have been given in the county of Izard, were transmitted to the governor and un-

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