lawfully counted in your favor, although it was well known ,to the canvassers that neither of the said counties had ever been organized as such, and consequently that no lawful election could have been held therein.
3. That in fact there was no election held in either of the said counties of Saline, Calhoun, and Izard, and the returns purporting to come from the clerks of said counties are wholly fraudulent; that all that portion of the Territory erected into said counties is entirely uninhabited by white men, and these facts also were well known to the canvassers.
4. That although no more than thirty votes, or thereabouts, were given in the county of L'Eau Qui Court by persons entitled to vote therein, no less than one hundred and twenty-eight votes were thence fraudlently (sic) returned and counted for you in the final canvass.
5. That the precinct of Genoa, in the county of Monroe, is within the limits of an Indian reservation, wherein no poll can be lawfully held, and no resident within which could have been entitled to vote, and although this was well known to the canvassers, seventeen votes for you there taken were unlawfully counted in the final canvass.
6. That the votes polled at Salt Creek precinct, in the county of Cass, seventeen in number, fourteen of which were for me and three for you, were wrongfully rejected, under the pretence of some irregularity in the returns of the judges by the board of county canvassers, and hence were not included in the abstract of votes sent to the governor; and that at Rockport precinct, in Washington county, votes, consisting of six for you and ten for me, were wrongfully rejected by the board of county canvassers under the pretence that the judges were not lawfully sworn.
7. That in Otoe county votes to the number of between fifty and one hundred were fraudulently given by persons residing out of the Territory of Nebraska.
8. That at Brownville precinct, in the county of Nemaha, gross frauds were committed in the reception of illegal votes and in making the returns to the clerk of the county, of the precise nature of which I am not yet informed.
9. That in the county of Richardson, persons known as half-breeds, and not possessing the qualifications of electors, to the number of fifteen or more, were unlawfully per-
mitted to vote and did vote for you, and that in the precincts of St. Stephen, Rulo, and Salem, or in one or more of them, persons, to the number of twenty-five or more, residing within the limits of the half-breed reservation, and therefore not entitled to vote, were nevertheless unlawfully permitted to vote and did vote for you.
10. That there was no lawful concurrence on the part of the district attorney of the Territory in the decision that you were entitled to a. certificate of election.
11. That at the late election in this Territory I received a greater number of legal votes than you did, and the highest number cast for any one person.
Yours, respectfully, SAMUEL G. DAILY.
Experience Estabrook, Esq.
N. T., December 12,1859.
II. At the election aforesaid for delegate to Congress, I received the greatest number of legal votes cast at said election for delegate, and I am the legally elected delegate to said Congress from the Territory of Nebraska; and, as such, I am entitled to my seat in the Congress for which I was elected.
Certain other papers have been found in my house, one dated the 4th day of November, A. D. 1859; one dated the 12th day of November, A. D. 1859; and one dated the 14th day of November, A. D. 1859, which were found many days subsequent to the service of the two notices first above referred to, purporting to be notices of contest with additional reasons assigned, together with a stray paper, purporting to come from you, to the effect that you withdrew the first two notices served upon me, and substituting the three last named in lieu of the former. I hereby deny your right to withdraw said first notices, and protest against your right to substitute and serve additional notices assigning new and different grounds from those contained in the notices first served.
I also deny that the additional papers found at my house as aforesaid are legal notices to me at all, or that service can be made in that manner under the act of Congress of 1851; and I answer the same under protest, reserving my right to take advantage of such illegal notices and service before the officers taking depositions and the House of Representatives, and shall claim and insist before the officers taking depositions, that no testimony can be received in support of the causes therein assigned; and, if overruled in this, and testimony is taken in support of the same, that the same cannot be read in evidence before the Committee on Elections nor the House of Representatives.
16th. That in the county of Cedar the entire votes of one precinct were not counted by the county clerk, in which I had a legal majority of nine votes.
17th. That in Washington county, where you received a majority of ----- votes, non-residents and foreigners were allowed to vote for you, and such votes were counted by the board of canvassers.
18th. That in Dodge county ten fraudulent votes were cast for you, and improperly counted for you in the final canvass.
19th. That in Hall county some twenty-five legal votes cast for me were rejected by the county canvassers, and over thirty votes cast for you in said county, at a precinct comprised wholly within the military reserve in said county, by residents on said reserve, were improperly counted.
20th. That one hundred and fourteen illegal votes were given for you in Nemaha county, and improperly counted by the board of canvassers.
21st. That gross frauds were committed in Nemaha, Richardson, and Pawnee counties by the judges of election, by allowing non-residents, foreigners, and persons who were not legal electors, the privilege of voting for you.
22d. That elections were held in precincts wholly unorganized, and pretended judges and clerks officiated at said elections without first being qualified according to law, in the counties of Cass, Otoe, Nemaha, Richardson, Pawnee, and the pretended counties of Gage, Clay, and Lancaster.
23d. That elections were improperly held and votes given and counted for you in the wholly unorganized counties of Gage, Clay, and Lancaster.12
24th. That in Grand Island precinct, in Hall county, where a large majority of votes were received and counted for you, the said precinct was not legally organized, neither were the judges and clerks of election legally appointed and qualified.
25th. That in the precincts of Syracuse, Hendrick, McWilliams, and Otoe, in Otoe county, where a large majority of the votes were received and counted for you, the election board[s] of said precincts were not organized according to law; neither were the judges and clerks of said election precincts sworn by any person authorized to administer oaths.
26th. That in the precinct of Omaha nine persons residing in Illinois, but temporarily in Omaha, voted for you, when in fact they were not legal electors in Nebraska.
OF NEBRASKA, County of
probate in and for the county of Douglas, in the Territory of Nebraska on the 16th day of December, A. D. eighteen hundred and fifty-nine, and on the several days following hereinafter specified, at my office, in the city of Omaha, in the county aforesaid, Robert Kittle, John M. Thayer, Eliphus H. Rogers, James B. Coit, William H. James, John Taffee, John McConihe, Albert G. Clark, Stephen H. Wattles, Samuel W. Black, William Cook, Magnus Wallenberg, William Thomas Clark, James L. Hindman, and John D. Neligh, were produced as witnesses, and having been by me severally duly sworn to answer truly all such questions as should be proposed to them touching the matter of the contested election of Experience Estabrook, as delegate from the Territory of Nebraska to the 36th Congress, Samuel G. Daily, contestant, then and there severally testified as follows:
In the matter of the contested election of Experience Estabrook, as delegate to the 36th Congress from the Territory of Nebraska: Samuel G. Daily, contestant.
Testimony taken on the part of the said Samuel G. Daily, in pursuance of the notices hereunto annexed, at the city of Omaha, in the said Territory.
Present: Mr. Conkling13 and Messrs. Pease & Paddock, attorneys for Mr. Daily; Mr. Kinney, Messrs. Richardson & Kennedy, and Mr. Redick, attorneys for Mr. Estabrook.
December 16, 1859.
Robert Kittle, of lawful age, being first duly sworn according to law, makes the following answers to the questions proposed, to wit:
1st question. What is your age, occupation, and place of residence?
Answer. About 37 years of age; occupation, farmer; place of residence, Fremont, Dodge county, Nebraska Territory.
2d question. How long have you resided in this Territory?
Answer. About three years and four months.
3d question. Where were you on the 11th day of October last, the day of the last general election in this Territory?
Answer. I went through Monroe county to the Indian reservation. In the latter part of the day I was at Genoa, on the reservation of the Pawnee Indians.
4th question. State whether an election was held at Genoa on that day, and whether you were present at the polls at any time during the day?
Answer. There was an election held there, and I was at the polls in the latter part of the day.
5th question. State whether you were present at the time the votes were canvassed?
Answer. I was.
6th question. State what number of votes were polled, at that election, and for whom they were given as delegate to Congress?
Answer. There were 23 votes polled for delegate to Congress, three for Mr. Daily, and 20 for Experience Estabrook.
7th question. State, if you know, in what part of the Territory Izard county is located; how far is it from the Missouri river, and from the town of Fremont, where you reside?
Answer. From the maps which I have consulted, it lies about forty miles west of the Missouri river, and about thirty miles northwest of Fremont, where I reside, to the nearest point of Izard county, being the southeast corner of said county."
8th question. What knowledge have you, not derived from the maps, of the situation and condition of the county of Izard?
Answer. I have been through that county along the Elkhorn river where it passes through the county. I know of no settlement in the county. It appeared to me to be entirely uninhabited. It appeared to be a prairie county as far as I could see, except along the Elk Horn river there was some timber. I saw no road whatever excepting the trail of the Indians.
9th question. State whether it is not a matter of public notoriety, in your section of country, that Izard county is wholly an uninhabited county?
Answer. So far as my knowledge extends regarding that subject, it is so; and I never saw a settler of Izard county going to or returning from that county, or heard of
one, and Fremont would be a natural road for them to come and go.
10th question. State, if you know, what are the farthest settlements west of the Missouri, in the direction of Izard county?
Answer. The farthest, of which I am acquainted, is West Point, in Cuming county, the middle of the southern portion of said county.
11th question. State, if you know, what county lies directly east and adjoining Izard county?
Answer. Cuming county.
12th question. State how far, and in what direction, Calhoun county is from the town of Fremont?
Answer. Nearly south, across the Platte river, nearest point about two and a half miles.
13th question. State whether you have any knowledge in regard to the settlement of Calhoun county?
Answer. I have been in Calhoun county, up and down the river some eight or ten miles; there was a settlement there about two years ago of some ten or fifteen persons, close by the river, near a point which was then called Neapolis,15 about four or five miles northwest from the Pawnee village. I have been there several times since, and the houses or shanties which they had built were entirely torn down, and the people had left more than a year ago. I do not know of any other settlements now, or that have been made within a year in that county.
14th question. State whether the Pawnee Indian village was within the limits of Calhoun county, and at what time the Pawnee Indians were removed by government from that locality?
Answer. They had two villages, both in Calhoun county, about six miles apart; one about four miles south of Fremont, on the south bank of the Platte river; one about ten miles south of Fremont, on the southwesterly bank of the Platte river. They were removed from their villages the latter part of October last, and taken to their reservation and settled there by Judge Gillis, their agent, about the 1st of November.
15th question. What knowledge have you, if any, in relation to the election, or the returns of the election, in Calhoun county?
Answer. I called on the clerk of Platte county for the
purpose of seeing those returns. He showed me the returns which purported to come from Calhoun county. I inquired of him where the precinct of Calhoun was where the election was purported to have been held by the return, and remarked, at the same time, that I supposed that it was the duty of Platte county to organize the precincts of Calhoun county. He said that the record did not show that they had made any precincts in that county, and that he received the returns in a letter from Mr. McConihe, the governor's private secretary.16
1st question. How long have you resided
in Dodge county?
the east line, and went out, I think, north of the middle of the west line.20
29th question. You do not pretend to say that there is no settlement west of West Point, in Cuming county, Nebraska Territory, only that you know of no other.
Answer. I know of settlements in the Territory farther west, but not in Izard county, or that range of counties.
30th question. Can you state of your own personal knowledge that on the 11th day of October last, there were, not inhabitants and voters in Izard county?
Answer. I could not state that of Izard nor any other part of the unsettled portion of the Territory
Answer. I did not see any. I was in command of an expedition in pursuit of the Pawnee Indians, and we followed the trail of the Indians directly through the county.
8th question. Did you see any person who seemed to be a resident of the county while passing through it?
Answer. I did not. I met with no person whatever.
9th question. How long have you resided in this Territory, and have you been accustomed to observe the progress of the settlements of the Territory?
(Objected to by counsel for Mr. Estabrook, on the ground of irrelevancy.)
Answer. Five years last October. I have been on the frontier more or less every year. The first settlements were on the Missouri river; then extended to the Elkhorn river, and up the Elkhorn as far as Fontanelle for the first three years. Fontanelle is about forty miles from Omaha.21 The next settlements north of Fontanelle are De Witt22 and West Point; they are in Cuming county, and about twenty or thirty miles north of Fontanelle. These are the farthermost settlements in that direction. West Point is about ten or fifteen miles from the eastern boundary of Izard county. West of West Point and De Witt there were no settlements.
10th question. State whether it is or not a fact of public notoriety among the old inhabitants of this part of the Territory that Izard county is wholly an uninhabited county.
(Objected to by counsel for Mr. Estabrook . . .)
Answer. It is especially among the inhabitants of Fontanelle, West Point, and De Witt. I made extensive inquiries of them when I was on the expedition above referred to, with the view to the protection of the settlements, and also to ascertain whether further depredations had been committed by the Indians.
1st question. How long have you been
engaged in farming?
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