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JOURNAL

OF THE

LONORABLE SENATE,

JUNE SESSION, 1833:

WEDNESDAY, JUNE 5, 1833. This being the day prescribed by the Constitution for the General Court of New-Hampshire to assemble, His Excellency, the Governor and the Honorable Council came into the Senate Chamber, and the following gentlemen, elected senators, took and subscribed the oath of office agreeably to the provisions of the Constitution, viz.

From Senatorial District

No. 2, Hon. Abel Brown,
No. 3, Hon. Jesse Carr,
No. 4, Hon. Cyrus Barton,
No. 5, Hon. James Farrington,
No. 8, Hon. Jacob Tuttle,
No. 10, Hon. Austin Corbin,

No. 11, Hon. Caleb Blodgett,

No. 12, Hon. Jared W. Williams.

His Excellency the Governor and the Honorable Council then withdrew.

The Senate was called to order by the Clerk.

On motion of Mr. Barton—

The senate proceeded to the choice of a chairman, and Mr. Carr was elected, and took the chair.

On motion of Mr. Farrington

The senate proceeded to the choice of a President, and the Hon. Jared W. Williams was elected.

Mr. Williams addressed the Senate, signifying his acceptance, and took the chair.

On motion of Mr. Carr

The Senate proceeded to the choice of a clerk, and Winthrop A. Marston was elected.

On motion of Mr. Farrington

The Senate proceeded to the choice of an Assistant Clerk, and Joseph Clough was elected.

On motion of Mr. Brown

The Senate proceeded to the choice of a Door-Keeper, and Jacob Tyler was elected.

On motion of Mr. Farrington

Ordered, That Mr. Farrington be a committee to inform Winthrop A. Marston of his election, as clerk; and Joseph Clough of his election as assistant clerk of the Senate.

• On motion of Mr. Barton—

Ordered, That the Assistant Clerk notify Jacob Tyler of his election, as do orkeeper.

Winthrop A. Marston and Joseph Clough appeared and were sworn to the faithful discharge of the duties of their respective offices.

On motion of Mr. Carr

Ordered, That the Clerk notify the House of Representatives, that the Senate have assembled, chosen their constitutional officers, and are now ready to proceed to business.

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On motion of Mr. Corbin

Resolved, That the Rules and Regulations of the Senate for the last year, be adopted as the Rules and Regulations of the senate for the present year, or until otherwise ordered.

On motion of Mr. Brown

Resolved, That the times to which the senate shall adjourn, shall be ten o'clock in the forenoon, and three o'clock in the afternoon, until otherwise ordered.

Mr. Barton presented a communication from Warren Lovell, Esq. which was read and is as follows, viz.

"To the Honorable Senate of New-Hampshire now in session, June 5th, 1833.

Having been constitutionally elected senator in the sixth senaatorial district in this state for the current year by a clear and fair majority of all the votes cast in said district on the 12th day of March, and believing the electors to have deposited their ballots under the expectation of a willingness on my part to accept the trust, and to sustain, by all lawful means, their rights, secur ed to them by the Constitution and laws of the state, I cannot, without a just forfeiture of their confidence, yield those rights, vested in me by their suffrages.

Therefore in the name and in behalf of the electors in said district, I respectfully ask the Hon. Senate to exercise their constituti onal power, in judging of their own elections, and to cause the votes for senator in said district, to be laid before them and

the same to be canvassed, declaring the result according to the will of the people.

I have the honor to be

with perfect respect,

your obedient servant,
WARREN LOVELL."

On motion of Mr. Barton

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Resolved, That the foregoing communication be referred to a select committee of three, with instructions to report thereon. Ordered, That Messrs. Barton, Carr and Farrington be said committee.

On motion of Mr. Carr

Resolved, That the Secretary of State be requested to lay before the Senate the Record of the return of votes given for Senators in the several senatorial districts in this state, at the election in March last.

Mr. Barton laid before the Senate certain papers purporting to be depositions and copies of Records relative to votes cast in the town of Eaton, in the election of a senator iu senatorial district No. 6.

On motion

Ordered, That the same be referred to the select committee appointed to take into consideration the communication from Warren Lovell, Esq.

The Secretary of state came in and laid before the Senate the Record of the returns of votes cast for senators, at the election in March last.

On motion of Mr. Barton

Ordered, That said Record be referred to said last mentioned Committee.

A message from the House of Representatives, by their clerk: "Mr. President,-I am directed to inform the Honorable senate, that the House of Representatives have assembled, have chosen the Honorable Charles G. Atherton, Speaker, James Clark, Clerk, and Arlond Carroll, Assistant Clerk, and are now ready to roceed to business.

And he withdrew.

On motion of Mr. Carr

The Senate adjourned.

AFTERNOON.

The senate met according to adjournment.

A message from the House of Representatives by their clerk; “Mr. President,-The House of Representatives have passed resolution appointing Messrs. French, Patterson and Noyes, committee with such as the senate may join, to wait on his Exllency, the Governor, and inform him that quorums of both

branches of the legislature have assembled, are organized and are ready to receive any communications he may please to make, in which they ask the concurrence of the Senate.

On motion of Mr. Corbin

Resolved, That the senate do concur in the appointment of a committee agreeably to the above resolution.

Ordered, That Mr. Farrington be joined to said committee, on the part of the senate.

Ordered, That the clerk notify the House of Representatives accordingly.

A message from the House of Representatives by their clerk: "Mr. President,-The House of Representatives have passed a resolution, adopting the joint rules of the two branches of the Legislature for the year 1832, for the present session, or until others be adopted, in which they ask the concurrence of the senate."

On motion of Mr. Farrington

Resolved, That the senate do concur in the passage of the foregoing resolution.

Ordered, That the clerk notify the House of Representatives accordingly.

Mr. Barton from the committee, to whom was referred the communication of Warren Lovell, Esq. together with other papers relative to the election of senator in senatorial district No. 6, with instructions to report thereon, made the following

REPORT.

The Constitution declares, that the Senate shall be final judg es of the election, returns and qualifications of its own members as pointed out in this constitution. By making the Senate final judges, as well of the returns as the qualifications of its members, there can be no doubt, that it was intended to confer on this body a supervisory power, in such cases, over the doings of the Governor and Council, whose duty it is, to examine the returned copies of the records of the votes in the several towns, and, fourteen days before the first Wednesday of June, to issue summons to such persons as appear to be chosen Senators by a majority of votes, to attend and take their seats in that body, leaving it to the final decision of the senate to determine, whether the prima facie evidence of the returns (on which the Governor and Council alone rely to determine, who appear to be elected) was correct, or whether a deficiency or want of formality in the re turns had left a vacancy to be supplied, or caused summons to he issued to a person who did not, in fact, receive a majority of the votes. The Committee had, therefore, no difficulty in arriving at the conclusion, that the case under consideration is precisely

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one of those contemplated in the provision of the Constitution, which makes the Senate the final judges of the election of their own members.

Having arrived at this conclusion, neither the comparative merits of the different persons voted for, nor any extraneous circumstance could make any part of the inquiry of the Committee.

The only question which seemed to come within the scope of their inquiry was one of fact merely, viz :-"Did the individual claiming a seat in this body from District No. 6, receive a majority of the votes cast in said District ?

It appears by the Secretary's record of the proceedings of the Governor and Council and by the returns themselves, that there arc returns from all the towns in District No. 6, and that all are made in form prescribed by the Constitution; that. the whole number of votes returned amount to 3039 making 1520 necessary for a choice; that Samuel Tilton has 1472 and that there are 12 scattering votes that Warren Lovell has 1519, one vote less than the requisite number for a choice; and that William Lovell has 36 votes which 36 votes were returned by the town clerk of the town of Eaton. It further appeared to your committee from the testimony of the said town clerk and selectmen of Eaton, that the 36 votes, returned from the said town of Eaton for William Lovell, were actually given, declared in open town meeting by the Moderator thereof, and recorded in the town records by the clerk of said town, as given for Warren Lovell, and that an error in transcribing the return from the record occurred, by which it was made to appear to the Governor and Council that 36 votes were given for William Lovell, which were in fact given for Warren Lovell. Had these 36 votes been correctly returned. to the Governor and Council, it would have appeared that Warren Lovell had received 1555 votes, 35 more than was necessary for a choice and 71 more than were given for all other persons.

By a law of this state passed June 17 1801, it is enacted, "that if the Clerk of any town neglect to make return of the votes of such town agreeably to the Constitution, for all or any of the offices aforesaid, he shall, for each and every such neglect, forfeit and pay a fine not exceeding one hundred dollars, nor less than twenty dollars, to be recovered by indictment, the one moiety thereof to the use of the prosecutor, and the other moiety thereof to the use of the town to which such delinquent clerk shall belong.' Although the law makes it the imperative duty of the Town Clerk to return the votes within a prescribed time and in a prescribed form, and subjects him to a penalty, in case of neglect, yet, your Committee are not aware, that it is any where provided, or even intimated, in any part of the Constitution or in any law of this state, that the election of any person shall be

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