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of the facts. They unanimously recommend the adoption of the following resolution:
Resolved, That Charles Henry Foster is not entitled to a seat in this House as a representative from the second district in North Carolina.
To the honorable the House of Representatives of the United States :
We, the undersigned, citizens of Carteret county, State of North
John L. Lewis.
Wm. E. Salter.
Arch M. Lewis.
David I. Mason.
At a meeting of citizens of Craven county, North Carolina, held at Bay River, Friday May 2, 1862, Frederick E. Alfred, member of the house of commons from Craven county, presiding, and Frederick T. Riggs, acting as secretary, the following resolutions were adopted:
Resolved, That it is our duty, as loyal North Carolinians, to respond to the efforts of the national government for our liberation from the tyranny of rebels and traitors; and we therefore cheerfully declare our purpose to co-operate with the Union forces to complete the restoration of the Constitution and laws of the United States in eastern North Carolina.
Resolved, That we do hereby organize ourselves into a military company for the protection of the lives, liberty and property of Union men in this neighborhood, and for the preservation of law and order in our midst. The organization shall be known as the Craven County Union Home Guard; and we cordially invite all loyal residents of the county to join with us, mutually pledging our honor for the faithful observance of our compact.
Resolved, That we hail with joy and satisfaction the appointment by the President of Edward Stanly, formerly of this State, provisional governor of North Carolina.
Resolved, That the gratitude of the Union men of North Carolina is eminently due to Charles Henry Foster, and we heartily ratify his election by the people of Cape Hatteras Banks as representative of this district in Congress, and earnestly request his admission to a seat.
WASHINGTON, June 5, 1862. Hearing of Charles Henry Foster upon his claim to a seat as representa
tive from the second congressional district of North Carolina. Question. Please state to the committee the ground of your claim to a seat.
Answer. This claim rests upon facts recited in a memorial signed by 168 loyal citizens, electors of the second congressional district of North Carolina, which is as follows:
“To the honorable the Senate and House of Representatives of the United
"Your memorialists, citizens of the second congressional district of North Carolina, respectfully represent : That they are and have been loyal to the government of the United States and obedient to their duties as citizens thereof, and that they are earnestly desirous of a representation in the national Congress, and that for this purpose three several elections have been held, namely, on the 28th November, 1861, the 16th January and the 30th January, 1862, at each of which Charles Henry Foster did receive all the votes so cast; the polls being opened and the voting being conducted at each election, so far as was possible, in accordance with the requirements of law. Wherefore your petitioners respectfully ask that the said Charles Henry Foster be admitted as their representative in Congress, he being the unanimous choice of all the loyal men of the said second district who are able to express their preference at the ballot-box."
It is only upon the statement recited in that memorial and upon some additional expressions of public opinion of the people of the district that I rely in this case, and upon no previous supposed or pretended elections. I rely entirely upon the statement of facts contained in this memorial and upon subsequent demonstrations; one of which is a memorial signed by citizens of Carteret county, within the limits of the second congressional district; and another, the proceed. ings of a public meeting held at Bay River, Craven county, North Carolina, which adopted a series of resolutions, one of which recommended my admission and ratified and approved the election previ. ously at Cape Hatteras Banks. It is not pretended that an election was held anywhere except upon the coast. None is pretended to have been held upon the main land, but the loyal men of the main land coincided in the expression made by the citizens who actually voted. There has been no adverse expressiou from a single elector in the district that I am aware of. No objection has been made. There is no contestant of my claim to this seat. The claim, I understand, is simply disputed, not contested. These popular demonstrations of loyalty and desire of representation, and these expressions in favor of my admission as a representative extend through a period of seven months, from the 28th of November up to the 2d of May, and this continued unanimity of the voters would seem to indicate that if the regular day of election had fallen upon any day certain within that period, that their suffrages would have been given with the same unanimity for myself. It would seem to indicate that no one of these elections was a snap judgment, that the unanimity of voting was not accidental, and that it would have been the same upon any other day which might have been the legal day of election, I submit, therefore, that these elections are equivalent to an election, at which the same number of votes might have been cast, which should have been held on a day which was either regularly named by the statute or which might be specially appointed by the State executive or ordered by Congress.
If part of the formalities prescribed by the election statute of a State may be dispensed with, why not others which are no more substantial or essential to a valid election ? If requirements of mode may be dispensed with, why not the prescription of a day? The Constitution of the United States contemplates the immediate filling of vacancies which may occur in the delegation from any State. The "executive authority' is required by that supreme law of the land to order special elections to supply such vacancies.
It is not necessary, where a vacancy occurs by death, resignation, or treason, and there is commotion or disturbance in a district so that an election cannot be held upon the regular day, that the electors should wait until the regular day comes around again. The Constitution contemplates an earlier election and the immediate filling of a vacancy, and requires the executive authority of a State to order an election to fill a vacancy. In this instance it is not pretended that the governor of the State, as the repository of the executive authority, ordered any election. It is not contended that the gove ernor has done his duty. It is contended, however, that the people have done theirs; and it is respectfully submitted to the committee that the default of the governor, the treacherous depository of this authority, should not disfranchise the people; that since the executive authority is primarily and finally in the people, in default of the governor it reverts to them, and they have the right to hold an election. All that is pretended here is that this action of the people is spontaneous.
Of course I do not undertake to say that I had no participation whatever in the canvass. Every candidate is supposed to do that, and to have some interest in the matter. Upon such default of the governor the spontaneous action of the people thus attempted to be disfranchised should be recognized as valid. Their action should be legalized by Congress, so far as there is anything lacking in matters of mere forms; and informalities and irregularities should be corrected, so as to do substantially justice to the citizens.
This case is somewhat a matter of equity towards this people. It has been impossible for them to procure a strict compliance with the forms of law; but they so complied as far as it was possible to do so. Certain preliminaries, which could not have been had on account of the disloyalty of the governor, are lacking. For that the people are not responsible; and I would submit that if the substance of an elec
on is in this case-if these people have voted in good faith, with a fair understanding, without intimidation, without any false inducement, if they have voted fairly and freely, then the election has as much in it as if the same number of votes had been thrown upon any regular day. Mr. Clements, of Tennessee, a State which had seceded, and in which the governor had issued no writ of election for members of Congress, was admitted to a seat in the House upon a spontaneous election of the people. The circumstances that the voting in that case was done upon the regular day named in the statute is surely a matter of no such controlling or decisive consequence as to make that election valid, while the absence of that circumstance in the present case is a fatal omission.
Mr. Lowe, of California, was admitted to a seat in the House upon an election held antecedently to the creation of the seat. So far as strict statutory requirements are concerned this election was not valid at the time it was held, but acquired validity by the subsequent action of Congress. It is a matter of frequent occurrence that the irregular proceedings of towns and other corporations are legalized by acts of the State legislature. If there was ever a case where such action should be had, the present claim of these loyal men is certainly entitled to similar generous consideration.
Representation is the characteristic of republican government, and without it such government becomes a mockery or a sham.
The declaration of our revolutionary fathers, "po taxation without representation, " has become an acknowledged political truism. The constituents of this claimant affirm their willingness to bear their proportionate share of the burdens of the government. They desire, reciprocally, the exercises of their right to share in the legislation of the government. That legislation vitally affects their interests; and they, in common with all other loyal, national citizens in the ceded States, have a vastly larger stake in the results of congressional action than do the people of the North.
The objection to admitting a claimant to a seat on the ground that he did not receive a majority, but only a small fraction, of all the votes usually cast in the district has already been disposed of by the deliberate action of the house in admitting several gentlemen who received but a small vote. One was the case of Mr. Segar, who received a little over one-sixteenth of the votes usually cast in that district, and for whom there was not such unanimous expression as was made in my favor, and against whom, in fact, there was a strong adverse expression. In my case I received a majority of all the votes of those who have thus far purged themselves of the rebellion by taking the oath of allegiance to the United States. I claim that the rebel citizens of that or any other district are not entitled to vote until after they have purged themselves of their supposed complicity
with the rebellion, arising out of the fact of their residence there during the period of the rebellion, and that they must practically be considered as no citizens at all, but as political minors at present. All of the persons who participated in the voting in my case, to whom I have called your attention, have taken the oath of allegiance to the government. They all did it voluntarily and they all did it as long ago as the 30th of August last. So that they have purged themselves entirely of all supposed complicity with rebellion, and should be considered as loyal citizens and qualified electors, while those who have not so purged themselves cannot, perhaps, properly be considered as having any right to interfere, and none of them have interfered or interposed any objection so far.
Certificates of election are not held to be an essential and indispensable part of an election. In peaceful times their absence could not be overlooked, but when in a period of disturbance and commotion they are impossible to be obtained, they ought certainly to be dispensed with.
The will of the people is the substantial thing. Adequate evidence of this will is all that should be exacted. All beyond or beside this is but external and accessory.
Question. There are three several elections referred to in the memorials to Congress ; one on the 28th of November, 1861, and two in January following. In what counties were those elections held ?
Answer. In Hyde county. There was no voting in any other county than Hyde.
Question. In no case ?
Answer. Not that I am aware of. Hyde is a large county, extending for many miles along the coast. Those men are the most loyal in the State of North Carolina. They have had no participation whatever in the rebellion. They have been isolated from the main land. They had no more to do with the rebellion than the people of the West Indies.
Question. Were any of these elections held elsewhere?
Question. The entire expression of opinion in your behalf was on the islands belonging to Hyde county ?
Answer. Not all of it. There were some meetings held at Bay River, in Craven county, and elsewhere, in which resolutions approving of my election were passed.
Question. There was no voting except upon the islands? Answer. That is all. Question. What islands are embraced within the region you speak of?
Answer. They are called "Banks."
Question. At how many places were those expressions of opinion in your behalf had ?
Answer. At all the precincts in Hyde county which are located on Cape Hatteras banks.
Question. Give their names.