Rehoboth

1 Rep. Cont. El. 127

• Court: Massachusetts House of Representatives
• Decided: July 1, 1812
• Status: Published

Opinion

The election of Elkanah French, Caleb Abell, John Medbury, Sebra Lawton, and Timothy Walker, members returned from the town of Rehoboth, was controverted by Stephen Bullock and others, on the ground of improper conduct on the part of the selectmen of the said town, at the meeting therein for the choice of representatives.²

The facts in the case are stated in the following report of the committee on elections, made on the fourteenth of February, in the second session,³ namely: —

“ The committee on elections, in the case of the petition of Stephen Bullock and others, inhabitants of the town of Rehoboth, against the election of the members returned from said town, report, that they find, that on the thirteenth day of May, now last past, a meeting of the inhabitants of the town of Rehoboth was holden, in pursuance of a warrant issued fourteen days before, for the choice of one or more representatives to the present general court; that at this meeting, motions were made, seconded and put, in order to obtain a decision on the questions, whether the town would send one representative, or five representatives; that the votes appeared to be so equally divided at the first trial, that the selectmen declared, they could not decide on which side was the majority; that afterwards it was agreed, that each voter in favor of sending five should take by the hand a voter in favor of sending one, and march out of the house; and Captain Cushing and Mr. Thomas Kennicut were appointed to count the files, and determine the question upon an inspection of those, on either side, who should be without partners; that after the said two gentlemen had counted two hundred and ninety-eight files, they were interrupted by Elkanah French, Esq., who told them it was impossible to decide the question, in that mode, it being evident, as he said, there was a mistake ; that the question was not understood, for he saw ‘ republicans ’ on the side for sending one. It was observed by Capt. Cush-ing in, reply, that there could be no mistake ; that they had already counted off’ five hundred and ninety-six, with correctness, and that in a few minutes the counting would be finished, and a decision made; but Mr. French persisted in his interference, took Capt. Cushing aside, and they were in conversation for some time. In the meanwhile, many voters, thinking the counting was finished, left their places, and went into the meeting-house to hear the result declared, and, shortly after, all the others followed. The selectmen, on being called upon to declare the result, observed that they could not decide, for the counting was not completed. It appears that there were from fifteen to twenty-five persons without partners, and that these fifteen to twenty-five constituted the majority for sending one representative ; but whether this fact was known by the selectmen, the committee cannot determine. After these ineffectual attempts to obtain a decision on either question, of sending one or five, it appears, that a motion for dissolving th e meeting, and a motion for its adjournment to Saturday, the eighteenth day of the same May, were regularly made and submitted to the freemen for their decision. On the house being polled, the selectmen declared that there were three hundred and thirty-one for dissolving the meeting, and three hundred and twenty-seven for adjourning until Saturday, and there being a majority of four for dissolving the meeting, it was dissolved accordingly.

The committee further find, that on the next day, (to wit, the 14th of the same May,) the selectmen, upon a petition signed by fifteen inhabitants, issued their warrant for a town-meeting, to be holden on Saturday, the 18th day of the samé month, at 12 o’clock, noon, at the east meeting-house, for the purpose, as expressed in the warrant, of sending one or more representatives to the general court; the notifications to that effect were given verbally, or by reading copies of the warrant, by the constables, to the inhabitants they found at home, or met in the highways ; and when an officer did not find a voter at his home, and had not met him elsewhere, he stated verbally the purpose and time of the meeting to the wife or other person or persons he found at the domicil of the qualified voter. It appears that notifications were not posted at the meeting-houses, and no public day intervened, from the issuing of the warrant until the time of the meeting. The committee also find, that the uniform manner of calling town-meetingS in Rehoboth, for fifty-two years last past, has been by posting notifications, at each meeting-house in said town, so long before the intended meeting, as to have two public days intervene between the time of posting up the notifications and the time of the meeting, and that this mode Was never deviated from, until the present instance.

The committee further find, that, at the meeting on the 18th of May, immediately after the petition and warrant were read, a motion was regularly made and seconded, that the town should send one representative, and no more ; and immediately following this motion, another was made and seconded to send five; that Elkanah French, Esq., (the presiding selectman at this meeting,) declared, in a loud voice, as follows: 41 will hear none of your motions, and I will put none of your motions; I will manage this meeting according to my own mind. If you do not like my proceedings, or if I do wrong, prosecute me. Bring in your votes for from one to five representatives.’ That at the time the first motion was made, or the instant before, a voter put his ballot into the box; and this voter swore to his belief that his vote was in, the moment previous to the first motion being made.

The committee further find, that the meeting was unusually orderly and quiet, until the declarations of refusal to put motions were made by said French, as aforesaid ; that, consequent upon those declarations, much confusion and tumult ensued, some insisting that the motions should be put and decided, before any votes were received ; others insisting upon voting, and others that they should not vote ; and in some instances, personal contests arose between the voters, and blows were given ; that the selectmen ordered one person, who appeared to them to be the most riotous, to be carried out of the meeting by the peace officers, and he was by them carried out, without any resistance being offered them, excepting that made by the individual himself; that most of the tumult and confusion was immediately in front of the seat of the selectmen ; that the presiding selectman repeatedly called for order, and declared, unless there was order, he would turn the box in five minutes; that for a short time after the tumult commenced, the noise was so great, it was with difficulty that either the moderator or any other person could be heard.

The committee also find, that when six or eight ballots were in the box, a motion was made and seconded for an adjournment of the meeting for half an hour, and reasons in support of the motion were assigned to this effect: ‘ that it was evident there was much agitation and confusion in the meeting, caused by the refusal to put the former motions; that the question, how many representatives the town would send, had, at all previous town-meetings, been submitted for decision to the freemen, as a matter of course; that a refusal in this instance was altogether unexpected, and considered by many as a gross infringement of the rights of the people, and that an adjournment for a short period would give opportunity for tumult to subside, passion to cool, and the electors to vote with regularity.’ This motion also was, by the said Elkanah French, utterly refused to be put; — he declared he would not put it, and ordered the mover to sit down, and hold his tongue.

The committee further find, that the presiding selectman ordered the aisles to be cleared, and repeated his calls for order, and for votes to be brought in; and that he ordered the voters to come up the western aisle, vote, and then to go down the eastern aisle. They also find, that the manner of votilíg of the electors at the east meeting-house has uniformly, for twenty-two years, been, to come up the eastern aisle, vote, and then go down the western aisle ; that consequently the eastern aisle was very much crowded with voters, who were there in the expectation of passing up that aisle, voting, and of going down the western, as usual; that when the order was given to go down the eastern, and come up the western aisle, six or eight, who had voted, endeavored to force themselves down the eastern aisle, and formed a phalanx at its head, which contributed to the confusion.

The committee further find, that, after the presiding selectman had received a few ballots, Nathaniel Drowne, Esq., one of the selectmen, declared the town had a constitutional right to send six representatives; that upon this declaration, the said French turned the votes, then received, out of the box upon the table, and ordered the voters to bring in their votes for from one to six representatives; that after the voting had proceeded for a short time, under the last order, the said French took up the votes which had been turned out, and returned them to the box, and they were counted with the others.

The committee further find, that after the order was given as aforesaid, to bring in votes for from one to six representatives, votes, to the number of six or seven, were received by the selectmen, and deposited in the ballot box, which votes were not received directly from the hands of the voters, but were collected by one Thomas Bowen, (after he had himself voted,) from persons in the crowd, and were by him delivered to the aforesaid Nathaniel Drowne, who put them into the box; that in other instances, votes were passed from hand to hand, over the heads of voters, until they arrived at, and were deposited in, the ballot box.

The committee further find, that the votes of five or six qualified voters were, by them, offered to the presiding selectman, and were by him refused to be received; that in most of these instances no reasons were assigned for the refusal; in one instance, he assigned as a reason, that he was about turning the box, and that he would not receive any more votes; but after he had thus said and thus refused, he did receive the votes of three persons, other than those he had refused as aforesaid; and then turned the box and made declaration, that the whole number of votes was twenty-five; that Caleb Abell, John Medbury, Sebra Lawton, Elkanali French, and Timothy "Walker, had twenty-three votes, and were chosen, and that Peter Hunt had two votes; and then left his seat, and immediately Nathaniel Drowne, Esq., one of the selectmen, made declaration, that all the above six were elected, and the meeting was dissolved.

The committee further find, that at the time the box was turned, the tumult and confusion had, in some degree, subsided; that no assault or personal violence was made upon nor offered to any of the selectmen, either in going to, or returning from the meeting; and that the authority vested in the selectmen by the constitution and laws, was not wrested from them during the meeting.

The committee also find, that at the meeting, and while the selectmen were calling for and receiving votes, the leaf of the table of the deacon’s seat was violently broken down, and the breast work of the pew pressed in towards the selectmen, and blows were aimed over the heads of some persons at the presiding selectman, which in the opinion of the witness, adduced to this fact, would have reached him, unless he had avoided them by reclining towards the pulpit.

The committee further find, that there were between six and seven hundred qualified voters present at the meeting, twenty-five of whom voted, arid one witness testified, that, in his opinion, no more votes would have been given in; but when it was demanded of the voters if their votes were all in, the answer No! No! was generally given; that the time which elapsed from commencing to receive votes until the box was turned and the result declared, was not more than twelve minutes, and that the time from the opening to the dissolving of the meeting, was twenty-eight minutes, and that immediately after the dissolution of the meeting, the aforesaid El-kanah French, Esq., upon some one expostulating with him on his conduct, openly declared, that he had intended to manage the meeting according to his own mind, and that he had done it.

The committee have the honor to exhibit the above statement of all the facts, which can be considered material; long as it appears, it is as much condensed as possible from the mass of documents and evidence adduced in the case ; and they feel themselves obliged respectfully to suggest, that in their very elaborate inquiry into, and minute and laborious investigation of, the facts and circumstances attending this election, they have been actuated by an anxious desire to discharge their duty with great care and fidelity, in a case of much more than ordinary import, whether considered as affecting the rights of the people of this commonwealth, the immunities of the large and respectable town of Rehoboth, the privileges of the sitting members, or as affording precedents for the governing of towns, in the exercise of the elective franchise, in the choice of representatives.

Upon mature consideration of the foregoing facts, and a careful application of the principles of the constitution and law to them, the committee report, that the supposed election of representatives to this house, from said town of Rehoboth, on the eighteenth day of May, in the year of our Lord one thousand eight hundred and eleven, is altogether void and of no effect, and consequently, that the seats of Caleb Abell. John Medbury, Elkanah French, Sebra Lawton, and Timothy Walker, Esquires, returned as members as aforesaid, be declared vacated.”

This report, having been made the order of the day, for the eighteenth of February, was then taken up, and after debate thereon, the question of agreeing to it was decided by yeas and nays, in the affirmative, yeas, 206, nays, 181.

The speaker then declared the seats of the members from Rehoboth to be vacated.

2 Same, 47.

3 Same, 320.