The Union and journal., 1864-03-04
Leaving a majority of 81 for Mr.. Bradbury.

Leaving q majority OF 81 tor Mr. Bradbury.
The next question that arose was, whsthe
there had been any time and place fixed ur
on by the seleotmen Of the two towns for tk
comparison OF the votes, as required by law
The Iemonstrant introduced several deposi
tions tending to show that prior to the pres
ent year. no such time and place had beer
agreed upon. that the selectmen OF Water
borough, the elder town, gave notice atte
the last election, Of q meeting to agree upor
such time and place. but not within the fou,
days prescribed by the constitution.
The testimony on the whole, proved to thu
satisfaction Of your Committee that no such
time and place for the comparison Of lists hat
been fixed by the selectmen Of the towns, and
as there was no such meeting OF the select
men of both towns, as was set forth In the
certificate before named, 1t could not give
any strength to the claim Of Mr.. Usher.
No such meeting for the comparison OF the
lists Of votes having been held, the Commit.
tee next proceeded to consider the effect Of
such omission.
1t seems to be we'll settled in analogous
cases, that such omissions after an election
has otherwise been made, cannot vitiate an
electiun-that takes place on the day OF
election: and the great purpose Of this com.
parison Of lists is to ascertain by an inspeo.
ton of the papers on their face. who appears
to have u primo faeis right, and whether an.
other meeting 10 necessary or not. We re.
gard the provisions Of the constitution and oi
the statute on this point as clearly directory
and not mandatory. This House Is the
Judge of the election of its members, and can
20 behind oil these regulations to inquire and
ascertain who Is in fact elected.
Another question Of greater Importance
next claimed the attention Of the Committee.
BY the vote of Waterbprough, as returned
in the certified list aforesaid, IL will be seen
that there were In the aggregate for both
four hundred and sixty.nine
votes. It was proved to the satisfaction Of
the Committee, that check list was kept,
and the voters names checked as they voted,
and that only four hundred aud thirty.two
names were checked. leaving n discrepancy
between the check list and returns. OF thirty.
seven votes. II was proved that one chal
lsnged voter was allowed to vote whose name
was not on the list. There was no proof Of.
fered to show that any voters name was
checked on the list who had not voted. but
the testimony introduced by both parties sat.
istied your Committee that four hundred and
thirty.three votes were honestly cast in that
town OH that day. Here, then, the Commit
tee fnd SO votes In the ballot box that ought
not to be there. There was no evidence Of.
fered BY Mr.. Usher or by the other side. bear
ing upon the question as to tho manner in
which the surplus thirty.six votes got into
the ballot box, or how the discrepancy arose
between the check list and the ballots return.
ed. How came they theres The law 70.
quire, (Revised Statutes Of Maine, chap. 4.
sec. 2l) that the sslectmen shall keep and
use check list at the polls during the cleo.
ton, and have and use suitable Ballot boxes,
and that no vote shall be received, unless de-
Iivsred by the voter in person.nor until thspr
siding officers shall DO satisfied OF his identity,
and shall fnd his name on the list, and mark
IL, and ascertain that his cote 10 single. Had
the seloctmen Of Marlborough honestly and
faithfully discharged that duty there would
have been but four hundred and thirty.threo
ballots In the box. There seems to have
been, and must have been, degree OF care
lessnsss, to use no hsrsher term, highly rep.
rehensible on their part, or this state OF
things would not have existed. And yet the
testimony In the case does not warrant your
Committee In finding them guilty OF stutins
the boz themselves. Fraud 10 to DO proved,
and not presumed. It appears in the case
that the meeting was held In . meeting
house. that the sslectmen stood in the desk,
and that they very improperly permitted 9th.
or persons than themselves to pass in and out
of and to remain In the desk. and near the
box. which had no cover OF slide upon IT,
Charity to the officers Of the town. acting as
they were. under oath, perhsps, requires that
we account for tha surplus votes upon the
theory that some i'll disposed person, other
than themselves. improperly having access to
the desk and the box, deposited the ballots
there without their knowledge or consent.
Now, then, the etfsc, Of these thirty II.
legal votes In the box IL next TO be consider
ed. They must not be counted. Shall they
be rejected from the count. or shall the town
be- disfranchised and the whole vote counted
out. Shall the honest voters Of q town, at a
legal meeting. properly called aud held so far
as they are concerned, having honestly voted,
be disfranchissd, and deprived Of the highest
privilege and the dearest and most sacred
right of the citizen under q republican form
n government, through the fraud OF any
knaye who has the adroitness to thrust one,
two. ten or more fraudulent votes un.
seen into the ballot box' The Committee
think not. II would be wrong IN principle,
as, carried out, II might lead TO the disfrsn.
chisement of q State. and leave It withou. q
Happily We are not without
precedent in this case. The question here
presented 10 not . new one. II seems to
have been considered and settled In courts. in
analogous cases, In Leeislutures In the diiisr.
ent States. In the Congress Of the United
States, and in the British Parliament, and
were your committee inclined to doubt the
correctness Of the principle. they would hard
" feel authorised to set aside or undertake to
pvcrturn principle that must now be regard.
id n 90 well settled. II IL this,-that He.
rsl votes are to be thrown out, aud not that
The whole vote IL to DO set aside on their nc.
count, unless the counting Of ne illegal votes
would change the result Of the election.
Many authorities could DO cited to this
point. but the following will bs deemed sun.
:isnt, viz:
Reports Of Massachusetts, Contested Elec.
lions In cases Western. p. li4; Charluont. p.
2sl; Tyringham, 266; Marblehead, 295;
Ashland, 5s3; and Blsnford Y. Gibbs, 2
Cush. 30. and In what may bs regarded % q
leading case. settled BY the Massachusetts,
Court in Sudbury v. Stssrns, 81 Pick. las.
In that case sixty-thrse illegal votes were
cast 1t parish meeting. and the Court were
,allsd upon to psss upon the effect Of these
votes upon tbe meeting. and they held that
the reception Of the illegal votes did no, nee.
esssrily vi,iste the proceedings, that the
who admitted them, II he acted
could be punished. and 30 OF :he
men who threw the votes. bat the meeting
being legal iu i,s inception, tie legal voters