Frederick Hedde's Testimony of Daily vs. Morton (1860)

The following proceedings is class action lawsuit over the 1860 election for the congressional seat for the State of Nebraska as Sterling Morton contested Samuel G. Daily for that position. The following reading a sworn statement or testimony of Frederick Hedde who represented the voters of Hall County about how this declaration of facts panned out in this early election for Nebraska. At the end of this proceedings is a link to the registered voter’s list of those who lived in Hall County.

SAMUEL G. DAILY VS. J. STERLING MORTON

Monday Morning, December 31, 1860.
Frederick Hedde, 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. Age, 42 years; occupation, a farmer; residence, Grand Island City, Hall county, Nebraska.
        2d question. State what you know of the proceedings in the county of Buffalo, for holding a valid election there, as to notices, and so on.
        Answer. On the 7th or 8th day of September last, Mr. Joseph E. Johnson and Mr. Wagner, both residents of Buffalo county, came to me, at my residence, at the Grand Island settlement, in Hall county, and applied to me, as probate judge of said Hall county, to issue an order for the general election to be held on the 9th day of October, I860, in Buffalo county, stating that their county at that time was not organized; that tbey at that time had only one county commissioner in the county; [the counsel ior Mr. Morton here objected to the witness stating in his answer what Johnson or Wagner said to him in regard to the condition of Buffalo county, it being not competent to be given in evidence;] and that one of the other two county commissioners. named Mann, had left the county a long time ago for the gold mines at Pike's Peak. What they said about the third county commissioner I do not remember. I had been personally acquainted with Mann; knew very well the place where he formerly lived; had been, some time before the time this conversation took place, at the place of his former residence, and had seen that the house in which he formerly lived had disappeared; I learned then from a man who lived in the neighborhood that said house had been moved away from that place to another place about six or eight miles distant; he had given up his residence and his claim and gone to the Pike's Peak gold mines. Being acquainted with these facts, I did not doubt the statement made by said Johnson and Wagner. I, however, refused to act according to their wishes, because the orders for the general election are not to be issued by the probate judge, and because, if they had applied for an order for an election to organize the county, they ought to have presented a petition for that purpose, signed by the majority of the inhabitants of the county, which was not done. The said two gentlemen also stated to me, in the above-mentioned conversation, that notices of said election, to be held on the 9th day of October, at that time had not been issued, and could not be issued because they had only one county commissioner in the county.

[The attorney for Mr. Morton again objects to all that portion of the answer which professes to state the declarations of Johnson and Wagner, or any hearsay testimony.]

        3d question. State whether or no any other application in behalf of the people of Buffalo county has ever been made to you during the last year, as probate judge of the county of Hall, to assist in the organization of the county of Buffalo.
        Answer. No such application has ever been made to me.
        4th question. State whether the counties of Buffalo and Hall adjoin each other; and on which side of the countv of Buffalo is the county of Hall?
        Answer. The counties of Hall and Buffalo are adjoining; the east line of Buffalo county is the west line of Hall county.
        5th question. State whether or no it was generally understood by yourself and others, in the county of Hall, until shortly before the election, and how long before, that no election was to be held in Buffalo county?

[Attorney for Mr. Morton objects to the question, on the grounds that the understanding of the witness is not A)mpetent to be given as testimony, he not being a resident of Buffalo county, but residing some twenty miles from the line.]

        Answer. From the above statements made by Johnson and Wagner, »ho are leading men in the Mormon settlement in Buffalo county, I) and some other inhabitants of Hall county, who were present when said statements were made, formed the opinion that in Buffalo county no election would be held on the said ninth day of October, and therefore it became the general understanding in our county that in Buffalo county no election would take place. This impression prevailed from the above-mentioned time, the beginning of September, to the end of the last week next before the election.
        6th question. State whether that belief led you and other citizens of Hall county to conclude that inasmuch as you, in Hall county, had not a full hoard of commissioners, it was not advisable for you to attempt to hold an election, and upon what ground it was that you subsequently determined to hold one?
        Answer. Said belief, that no election would be held in Buffalo county, was one of the main reasons why I, and other inhabitants of Hall county to whom I spoke, thought that it would be the best course to pursue not to have an election in Hall county, knowing that Buffalo county is a prevailing democratic, and Hall county a prevailing republican county, so that these two counties, by holding no elections, would pair off. On the last Friday before the election I saw a gentleman from Buffalo county, and asked him whether anything had been done in Buffalo county for holding an election, and was astonished to hear that notices for an election had been posted up there, and that they would hold an election. Then I thought that it was our duty to have an election also in Hall county. The next day, Saturday morning, several gentlemen from counties below, came to me, stating that they had seen at Columbus, a short time ago, Mr. Morton, one of the candidates for delegate in Congress. One of the gentlemen informed me that said Mr. Morton had told him that Buffalo county, and the other counties west of her, would have an election, and Hall county would not, and that in this way the republican party would lose about forty votes. Then I concluded to do all I could to have an election in our county. I requested said gentlemen to see the county clerk of our county, Mr. William A. Hagge, and to ask him whether he would call an election. The county clerk agreed to do it, and requested me to write the necessary notices and he would sign them. I wrote then three notices for the election to be held on the ninth day of October, for the Grand Island precinct of Hall county, and three notices for the Wood River precinct of said county. They were sent to the county clerk, who promised to post thetn up, or have them posted. On the day of election I myself saw one of these notices signed by the county clerk, whose handwriting is very well known to me, posted at the place where the election was to he held, and where public notices generally are posted. I saw this notice at the time I went to the poll before the poll was opened, a short time after eight o'clock; and 1 made inquiries when the notice had been posted, and learned that it had been posted on the preceding Saturday afternoon.

[Attorney for Mr. Morton objects to so much of witness's last answer as is hearsay, and not testified to from his own personal knowledge.]

        7th question. State whether or no the Mormon settlement, of which you have spoken in your last answer, comprises a greater part, and what proportion, of the inhabitants of Buffalo county.
        Answer. Buffalo county is principally inhabited by Mormons, only a few families living there who are not Mormons.         8th question. State whether or no an election was in fact held in the Grand Island precinct on the day of the general election, and what steps were taken to render it regular and valid, as far as, under the circumstances, it was possible to do it.
        Answer. At the lime that the polls should he opened, the judges of election, appointed by the county clerk, Mr. Hagge, had not appeared; the electors who were present at that time, about ten or twelve in Dumber, elected then three judges of election, named George Shultz, Christian Guetschow, and Hans Stuhr. These were sworn by rue as probate judge. The judges then elected two clerks of the election, who were also sworn by me. They then proceeded to hold the election. Said county clerk was present when the said judges and clerks of the election were elected, and after the polls had been opened, he himself voted on the said day of election. No other magistrate but myself was present in the county on that day, and the said county clerk had, on the same morning before the election, declared that he would not swear the judges and clerks of election.
        9th question. State whether or not the poll was kept open through the day.
        Answer. I left the place where the election was held about an hour after the poll had been opened, and did not return to the place until evening, a short time after the poll had been closed, which was a short time after six, I believe.
        10th question. State whether, so far as you know, or have ever heard, or have any reason to believe, after the appointment of officers as you have described, the election was regularly and impartially conducted.

[Attorney for Mr. Morton objects to the witness stating hearsay or belief.]

        Answer. I have no reason to believe that said officers of election did not act impartially. I spoke with them at the time when I returned t . the polls, and asked them who had voted, and in a conversation I then had with them they counted up all the men in our settlement who had not voted; among them were four or five who, as I learned, had not come to the poll, for the reason that they were not yet entitled to vote. From this statement I formed the opinion that a perfectly fair and honest election had been held.
        9th question. State, if you know, how many votes were given at that election, and for whom as delegate in Congress.
        Answer. Twenty-nine votes were polled at said election, all for Samuel G. Daily as delegate in Congress.
        10th question. State, if you know, whether a return of those votes Wm made to Mr. Hagge, the county clerk, how he disposed of them, and how they were ultimately transmitted to the governor.
        Answer. A few days after the election one of the poll-books, in a *aled envelope, was conveyed to the county clerk. On the 15th day of October the county clerk sent to me a letter, accompanied with the waled envelope, directed to the county clerk; in said lettsr to me the connty clerk stated, "I am no county clerk, and consequently I am not entitled to open the envelope directed to the county clerk." Knowing that it was the envelope containing the poll-book, and knowing that it was the county clerk's intention to make, if possible, the election invalid, I applied immediately to the county recorder, »ho happened to be present in my house when I received said letter. I filed with him this letter, in which the county clerk stated that he was no county clerk, and the sealed envelope directed to the county clerk, and requested the recorder to act in this case as acting county clerk, as the law provides. [Attorney for Mr. Morton objects to the language of the witness, " as the law provides," on the ground that there is no such law.] Then the county recorder called in two householders, canvassed the votes, and transmitted an abstract of the votes cast to the governor of Nebraska.
        11th question. You have mentioned another precinct in the county of Hall. State whether any poll was opened in that precinct, and whether any other poll was held in the county of Hall, except in the precinct of Grand Island.
        Answer. To my knowledge no election was held in the Wood River precinct of Hall county. One of the judges of election appointed for said precinct told me that notices had been sent up there, and I believe the same man told me that no election had been held there, said Wood River precinct and Grand Island precinct being the only precincts in Hall county.
        12th question. How happened it that the forty days' notice required by statute of an election to be held was not seasonably given by the county commissioners?
        Answer. One of the three county commissioners elected in Hall county in 1859 died a long time before the notices ought to have been given. The second county commissioner had moved out of the county before that time, and the third and only commissioner then left was, at the time when the notice should have been given, absent from the county for several weeks, he at that time having gone to Omaha.
        13th question. State whether you are at present temporarily sojourning in this place, (Omaha,) and in what, if any, public character.
        Answer. I am at present sojourning at Omaha as a member of the house of representatives of this Territory.
        14th question. How long has Hall been an organized county, and whether it is a legislative district?

[Objected to by attorney for Mr. Morton, on the ground that the proof of organization and of its being a legislative district can only be shown by the laws organizing or creating it as such.]

        Answer. The law was passed by the legislature of Nebraska, if I am not mistaken, in the fall of 1858, for the organization of Hall county, and the governor was authorized by said law to appoint the officers. In the course of the following winter or spring the officers were appointed by the governor. To my remembrance, it was the eame legislature that passed a law for the appointment of representative districts, making Hall and Monroe counties one representative district, and entitled to one member of the House of Representatives. By a later law Monroe has been incorporated into Platte county, leaving Hall as the remaining part of said representative district, which I now represent in the legislature.
        15th question. Of what country are you a native?
        Answer. Of Holstein, which is a part of the German confederacy.

[The further examination of the witness was adjourned nntil tomorrow afternoon at 2 o'clock.]

Tuesday Afternoon, June 1, 1861.
The witness not appearing, the examination was adjourned until to-morrow afternoon.

Wednesday Afternoon, June 2, 1861.
Frederick Hedde cross-examined.

        1st question. Have you any personal knowledge, aside from the statements of Johnson and Wagner made to you, and what you have heard from others, as to the manner in which the election in Buffalo county was held?
        Answer. I have not.
        2d question. How far do you reside from the east line of Buffalo county?
        Answer. About twenty miles.
        3d question. Do you of your own knowledge know that legal notice of said election was not given in Buffalo county?
        Answer. I do not know anything except what was stated to me hy Johnson and Wagner, and except the fact, as stated above, that the house of one of the county commissioners of Buffalo county, named Mann, had disappeared from the place where it formerly was.
        4th question. You state, in your direct examination, that " it became the general understanding in our county that in Buffalo county no election would take place:" did that understanding extend to the people of Buffalo county?
        Answer. I believe it did, because the above-named two leading men. Johnson and Wagner, from Buffalo county, told me that they could not have an election, no one in their county being authorized to give notice for such an election.
        5th question. Do you know what the understanding of the people of Bnffalo county was of your own personal knowledge, and aside from what Johnson and Wagner told you?
        Answer. I do not.
        6th question. In regard to the election in Hall county, who were the gentlemen from the counties below who gave you the information that Mr. Morton had said at Columbus that Buffalo county would hold an election, and Hall not?
        Answer. Mr. H. W. De Puy, from Washington county, and Mr. Kittle, from Dodge county.
        7th question. Was it not at their instance that the election in Hall county was held?
        Answer. I cannot say that it was at their instance. I had already the day before, as above stated, learned from a gentleman from Buffalo county that they would hold an election in Buffalo county, and in consequence of that 1 thought it would be advisable to have an election in Hall county. When the next day said two gentlemen came to me, they told me that it was also their opinion that we could hold an election just as well as Buffalo county. As to my knowledge, the notices in said Buffalo county had not been published in time. Then, at my request, said gentlemen consulted the county clerk and his brother-in-law, Mr. Stotley, all these gentlemen agreeing that we ought to hold an election. The county clerk called a meeting of the citizens of our precinct on the same day that said gentlemen came to me. That meeting concluded that an election ought to be held.
        8th question. Do you, of your own personal knowledge, aside from what Johnson and Wagner told you, and from what you heard others say, know that the proper notices were not given in Buffalo county?
        Answer. When I, in my last answer, used the term "knowledge," I meant to say that I, from the statements made hy said Johnson and Wagner to me, in my capacity as probate judge, was perfectly convinced that said notices could not have been published in time.
        9th question. Do you think the meeting in your precinct, which concluded to hold an election, would have been held if the two gentlemen you have spoken of, and yourself, had not moved in relation to it?
        Answer. If I had not been informed of the above-mentioned facts, I mean the fact that they were going to hold an election in Buffalo county, and the other fact that Mr. Morton, in Columbus, had said he was glad that in Buffalo county an election would be held and in Hall county not, the meeting probably would not have been held.
        10th question. At your first interview with Johnson and Wagner, in your capacity of probate judge, when they applied to you to call an election in Buffalo county, did you not express the opinion that no valid election could be held on the 9th of October, either in Hall or Buffalo counties?
        Answer. I expressed the opinion that in Buffalo county, according to their own statements, an election could not be held in strict accordance with law, and that they in Buffalo county were in the same situation as we were in Hall county.
        11th question. Were you a candidate for the house of representatives of this Territory, in the legislative district composed of the counties of Hall and Buffalo, at the election held on the 9th of October last?
        Answer. I have never been a candidate for any office in said district, because said district is entirely unknown to me.
        12th question. Were you a candidate for the house of representatives at said October election; and if so, from what district?
        Answer. In the above-mentioned meeting I was nominated for the office of representative for Hall county, and accepted the nomination.
        13th question. Who drew the notices of election that were posted in Hall county?
        Answer. As above stated, I, at the request of our county clerk, drew for him six notices of election—three for the Grand Island, and three for the Wood River precinct.
        14th question. Were you present at the meeting which, on the morning of election, elected the judges of election in the precinct of Grand Island?
        Answer. I was
        15th question. Do you recollect who made the motion for the election of those judges?
        Answer. I did it myself.
        16th question. Who swore them in?
        Answer. I did.
        17th question. Were you present at the canvassing of the votes after the poll was closed?
        Answer. If I am not mistaken, I was.
        18th question. Were you present at the canvass made hy the county recorder in the presence of two householders, on the 16th day of October?
        Answer. I was present, at least for some time. I do not remember that I was present the whole time. I don't remember that it was on the 16th.
        19th question. Who drew up the return transmitted by said recorder to the governor?
        Answer. At the request of the recorder I drew it up.
        20th question. In your direct examination, in answer to the tenth interrogatory, you say you requested the recorder to act in this case as acting county clerk, as the law provides. Please point out from the statutes here presented the law you allude to.
        Answer. The law alluded to is contained in the statutes of Nebraska, for the year 1856, in section 20, chapter 9, of the Code of Nebraska, which provides, as follows: "In case of a vacancy in the office of a county office, the county clerk shall order a new election, and the register shall act as clerk of the county until the clerk is elected and qualified."
        21st question. Have you, at the present session of the legislature, had a contest involving the validity of the election in Hall county?
        Answer. I have had such a contest.
        22d question. What is your politics?
        Answer. I am a true democrat, and I have been that all my life, as long as I have had anything to do with politics; and this, my political opinion, is the reason why I now belong to the so-called republican party.

Re-examined.
        1st question. Was the contest to your seat in the present legislature of Nebraska decided in your favor or in favor of your contestant?
        Answer. It was decided in my favor.
        2d question. Who was your contestant, and where does he reside?
        Answer. My contestant was the above-named Joseph E. Johnson, who lives in Buffalo county.
        3d question. In that contest, was the validity of the late general election in Buffalo county, and the validity of the county organization of said county, in issue?
        Answer. The validity of said election in Buffalo county was in issue; the validity of the county organization of said county was not.
        4th question. Was the late general election held in said Buffalo county pronounced invalid by the house of representatives of the Territory of Nebraska in said contest?
        Answer. That was not expressly said in the decision made by the house of representatives; in my case a majority of the committee offered a resolution that I was entitled to a seat in the house, and this resolution was adopted by the house.         5th question. In the selecting of judges of election for Grand Island precinct, and swearing them as such, and in the canvassing of the vote by said hoard, and the canvassing of the return by the county recorder, was the same, as far as you know, done honestly and impartially?
        Answer. To the best of my knowledge and belief, all was done honestly and impartially.

Re-cross-examined.
        1st question. Was there any election held in the Wood River precinct of Hall county on the 9th of October?
        Answer. I am told that no election was held there that day.

1860 Voter's Lists
This was an addendum to Mr. Fred Hedde's testimony of the list of voters and who were sworn in at the 1860 election in Grand Island.