History of Dakota Territory, volume I, Part 48

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198

USA > South Dakota > History of Dakota Territory, volume I > Part 48

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My name is Thaddeus Andrews; I reside at Brule Creek, Cole County, Dakota Territory. I was present at the election held at the Brule Creek Precinct on the ist day of September, 1862. 1 was one of the judges of election at said precinct.

First interrogatory : Were the judges of election and clerk sworn at said election ? ( Witness refuses to answer.)

The polls were opened at said election at the house of A. R. Phillips, at Brule Creek aforesaid. They were opened at 9 o'clock in the morning of the ist day of September, 1802. The judges and clerks were present at said election. One of the judges who were appointed by the commissioners refused to serve, and A. R. Phillips nominated Milton M. Rich, who was elected by the persons present in the house. 1 do not recollect the number present; 1 think there were about forty votes cast during the day, after the polls were opened at g o'clock A. M1.

Second interrogatory: Was the ballot box opened and examined before the voting commenced, after the polls were opened at 9 o'clock on said day :

( Witness refuses to answer. )

I should think there were ballots in the ballot box before the voting commenced after the polls were opened; there were about thirty ballots in the ballot box before the polls were opened. I cannot tell for whom the ballots were cast, but I suppose they were cast for William Jayne for delegate to Congress. They were cast for the south half of the northeast quarter of Section No. 29, Township 92 North for county seat. These ballots were put in the ballot box by some person; I am unable to state by whom. The ballots were put in between Sunday evening and 9 o'clock Monday morning; I think about 3 o'clock Monday morning. 1 think they were put in at A. R. Phillips' house, but I am not sure that that was the place .. I was present at the time they were put in; there were quite a number around while this was going on.

Third interrogatory : Do you know that those ballots were put in the ballot box at the house of Timothy Andrews?

( Witness refuses to answer. )

I cannot state whether the ballots that were in the ballot box when the voting commenced were all put in by one man or not. The polls were closed and we commenced canvassing the votes publicly. We counted all the ballots in the ballot box. We found that the number of ballots in the ballot box did not agree with the number of names on the poll list. There were six ballots more in the ballot box than there were names on the poll list. Six ballots were then picked out from the top of the ballots in the box, which were destroyed; the remainder of the ballots we then canvassed, and returned them to the office of the clerk of the Board of County Commissioners of Cole County. The names of persons voting during the day were taken down by the clerk of the election. There are names of persons on the poll list who did not vote during election day. I think there are about thirty names on the list who did not vote.

Fourth interrogatory: flow came those names on the poll list ?

( Witness refuses to answer. )

One of the poll lists was returned to the clerk of the board of county commissioners. The clerks of the election were Mahlon Gore and William C. Butts. The judges were myself, A. R. Phillips and Milton MI. Rich.

THADDEUS ANDREWS.

Other witnesses testified corroborating Mr. Andrews.

In the Bon Homme precinct the testimony was the same as that reported by the elections committee of the Territorial House and will be found under the legislative proceedings of 1862-63.

In Charles Mix County the evidence showed that 145 votes were cast, 138 for Jayne and seven for Todd. Of this number there were from sixty-five to seventy- five votes cast by Iowa soldiers stationed at Fort Randall as proven by the poll list.

This concluded the proceedings before Judge Bliss at Yankton. Sixty days was the time allowed by law for the taking of testimony and this period expired on the 16th of January. 1863, but notwithstanding the expiration of the time, the contestant received notice that the deposition of Joseph Y. Buckman, regarding the vote on Red River, would be taken before Hon. W. F. Purcell, judge of the Orphans Court in the District of Columbia, March 11, 1863. At this time both parties appeared, General Todd under protest, objecting that the judge had no jurisdiction.

Mr. Buckman testified in substance that he had been an Indian trader and postmaster at Pembina for several years; that he did not think there were more than ten to twelve white persons present on the day of election ; that of these there were three who claimed to be native born citizens and three others who claimed to be naturalized citizens, and more who had declared their intentions to become citizens. He testified that there were forty-six or forty-eight votes cast for dele-

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gate at the election; that the excess over the number of legal voters present was cast by illegal voters, mostly half-breeds, and that there were added to the votes cast, after the close of the polls, a little over one hundred votes, and that Charles Morneau, who was clerk of the board of county commissioners and who signed and sent the certificate to the secretary of the territory, was present at the election.

Congress not being in session at the time the taking of the testimony was concluded, the matter went over until the next session which began in December, 1863. Neither of the parties were given a seat until January 14, 1864, when Mr. Davis, from the committee on elections, reported a resolution giving the seat to Mr. Jayne, on the ground that he held the legal certificate from the governor of Dakota, without prejudice to General Todd's claims.

The matter was given investigation quite thoroughly by the congressional Committee on Elections, of which Mr. Davis was chairman. The majority of this committee submitted a report May 24, 1864, which was ordered to be printed ; and on the Ist of June following a minority report was also submitted. On the 18th of June the matter came before the House for final action. The majority report recommended the exclusion of Buckman's testimony on the ground that it was not taken within the time prescribed by law. It also threw out the vote of Bon Homme County entirely, stigmatizing the election proceedings as disgraceful. The report found as follows :

The official canvass of the territorial board of canvassers stated the result to be :

For Wm. Jayne .237

For J. B. S. Todd. .221

Add Charles Mix County. 72

For J. B. S. Todd. 7

Add Kitson County, Red River.

For J. B. S. Todd. 125

328

353

Deduct Yankton non-residents 9

J. B. S. (Brule)

Deduct Brule Precinct. .63 72 256

344

Giving General Todd a majority of eighty-eight votes, and the committee recommend the adoption of the following resolutions :

Resolved, That William Jayne is not entitled to a seat in this House as a delegate from the Territory of Dakota in the Thirty-eighth Congress.

Resolved, That J. B. S. Todd is entitled to a seat in the House as a delegate from Dakota to the Thirty-eighth Congress.

Congress finally reached a vote on the report and resolutions June 18, 1864, by which the first resolution was adopted by a vote of sixty-four to thirty-one, cighty-six members not voting. Thereupon General Todd was sworn in, and the matter was settled.

The minority report objected to counting the vote of the Red River precincts, contending that the census returns of the year before showed but forty-two white males in the whole Red River country over the age of twenty-one, and these were all residents on lands to which the Indian title had not been extinguished. There had been no emigration to that country, for emigrants would not be permitted to settle on Indian lands. The testimony of Buckman was also presented, and a strong argument made for throwing out the Red River vote entirely. This report was not acted upon.

The votes thrown out from those cast at the Yankton precinct were those of D. T. Fessenden, C. Fessenden, A. B. Wood, J. Mellin, Albert Mellin, who were in Dakota temporarily as United States deputy surveyors and returned to Michi- gan after the election ; also G. W. Lamson, of the surveyor general's office, who left the territory right after the election and whose family resided in Michigan ; also George N. Propper, who had not resided in the territory six months prior to election, and also P. C. Conway of Company A, Dakota Cavalry, whose resi- dence at the time of enlistment was at St. Johns, Nebraska.

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In answering the position of Mr. Jayne regarding the Indian title to the land in the Red River country, the majority report contended that the sitting member was mistaken in his construction of the law, found in the first section of the organic act, which says :

Provided, That nothing in this act contained shall be construed to impair the right of persons or property now pertaining to the Indians in said territory, so long as such right shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which by treaty with any Indian tribe is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory ; but alt such territory shall be excepted out of the boundaries and form no part of the Territory of Dakota, until said tribe shall signify their assent to the President of the United States.

It is apparent, upon reading the proviso, that the territory which it is therein provided shall be set apart for any particular tribe of Indians, and thereby to be excepted out of the limits of the territory, is that which is set apart by treaty with any particular tribe, and is so excepted by the treaty itself. It does not apply to any portion of the territory upon which Indians may happen to live, but only such portions as are held by particular tribes under and by virtue of treaties defining boundaries, and stipulating for exclusive jurisdiction to be exercised by the tribes holding them. No such treaty existed covering any portion of the precinct under consideration and therefore the vote cast there cannot for this reason be excluded.

As bearing upon the voting population of the Red River country :

In 1867 Hon. M. K. Armstrong had occasion to visit the Red River region for the purpose of prosecuting the survey of a body of lands which had recently been ceded to the Government by the Chippewa Indians. Mr. Armstrong was present at the election held in the St. Joseph precinct October 8th, regarding which he wrote as follows: "Today I have witnessed one of the famous Red River elec- tions.' I came in late last night from my line nine miles back in the woods to witness the show today. Here you will remember is the country where in the early days of Jo Rolette and Minnesota Territory, the balance of power was weighed and never found wanting. Two hundred and fifty votes were polled today at St. Joseph, mostly all in the morning before I reached the polls, and about thirty at Pembina." This would indicate something of the reckless manner in which elections had been conducted during the the time of the Jayne and Todd election.

This action of the House gave the seat to General Todd and the incident was officially closed ; but occurring as it did in the midst of the preliminary campaign of 1864. between Burleigh and Bliss, it had a very important bearing on that con- test, as well as in the subsequent attitude of General Todd. Intelligence of the decision in favor of Todd was received at Yankton about the 21st of June. It was very cordially welcomed by the democrats and the insurgent republicans : while the regular republicans as they were called were obliged to accept it without protest or indignation because it had been the verdict of a House of Representa- tives in which their own party was very largely in the majority. The proceedings and testimony of the contest were published in pamphlets and newspapers and later distributed among the Dakota people as a campaign doctiment.

Dr. William Jayne, the first governor of Dakota Territory, was born in Springfield. Illinois, in the year 1824, and was therefore thirty-seven years old when appointed governor. He had been a prominent physician in Springfield and Sangamon County for several years, and was the family physician of President Lincoln. Doctor Jayne had taken an active part in political affairs prior to the formation of the republican party and was allied with the free soil wing of the old whig party with which Mr. Lincoln was affiliated and one of its ablest and most prominent leaders. He doubtless owed his appointment to his personal acquaint- ance with the President, aided by good abilities, excellent character, and the agreement of his political views with those of the dominant party. It would appear that Mr. Jayne did not seem inclined to enter upon and pursue a pioneer career. in Dakota : but during his brief administration. a large portion of which was covered by Dakota's most serious Indian troubles, he labored carnestly for Vol. 1-18

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the accomplishment of whatever would promote the welfare of the people and the territory. As the record shows, the election at which he was a candidate for dele- gate to Congress, was held amidst a general alarm and great excitement caused by a hostile uprising of the Indians, and the opportunity for fraudulent voting was seized upon by unscrupulous parties to promote local interests and pursue ends. However, he was the accredited delegate from Dakota, and held his seat until Congress decided that his opponent was entitled to it. He then returned to Springfield where he resumed his medical practice and his activity in political affairs. Ile has since been chosen mayor of that thriving state capital for three terms and has been a zealous friend and promoter of the humanitarian institutions of that state, and is now at the ripe age of eighty-one, a member of the State Board of Charities and Corrections.

The dominant party in the Legislature of 1862-63, having an earnest sympathy with Governor Jayne in the contest that had been instituted by General Todd for the position of delegate in Congress, which contest was then pending, made an examination of the election returns of 1862, the proceedings of the canvassing board, composed of Judge Bliss and Secretary Hutchinson, and also of the rec- ords of the secretary's office, and embodied the result of their examination in a report, which was duly adopted by both houses and authenticated, and sent for- ward to the speaker of the House of Representatives. The report, in addition to giving the result of the canvas as made by the board shortly after the election, which resulted favorably to Jayne and gave him the certificate, dealt with some official statements that had afterwards been given to Todd, criticizing and reflect- ing severely upon both canvassers, who were now (in 1863) in open opposition to the Jayne faction. The aggrieved gentlemen, in order to combat the influence of the legislative document, made a statement to Congress, which is here given :

To the House of Representatives of the United States :

The undersigned, chief justice and secretary of the Territory of Dakota, and canvassers of the vote of 1862 for delegate to Congress and territorial treasurer and auditor, respectfully represent : That the Legislative Assembly of the territory, just closed, has passed a joint resolution relative to our action as canvassers of said vote on the 21st of October, 1862, which resolution, we are informed, has been forwarded to your honorable body, attested by the principal officers of the said Assembly. We have thus far refrained from taking any formal notice of the unfriendly criticism passed upon our action, but this recent ex parte declaration of the lawmaking body, under the spur of disgraceful partisanship, compels ns, in our own defense (and not for the purpose of influencing the action of your honorable body in the contest from this territory now pending before you), to make the following statement :

First, while we regard the supervision of our proceedings as impertinent intermeddling and entirely foreign to the duties of the Legislature, we might charitably respect their action as an honest desire to represent popular sentiment were we not aware that the reverse is the case most emphatically and justly, because in those counties where those members who voted for said resolution were elected the dominant issue was the repudiation of the ballot box stuffing which disgraced the election of 1862, and these representatives would not have been chosen had they made their campaign upon the joint resolution which is the subject of this statement.

Second, The proceedings of the canvassing board were carefully considered, with a desire to do justice, rebuke fraud, and protect Dakota from the evils which illegal voting give birth to, and preserve its reputation from the contamination that has besmirched the exercise of the elective franchise in other political divisions of the West. We also felt that the honor of the republican party, to some extent, depended upon our action, and its future influence in these new communities would be aided or hindered by the manner in which we discharged this duty, doubly important because it was the first election held under the laws of the new territory. We had voted for and desiretl the election of Governor Jayne as delegate, but we desired more than this to protect him from the dishonor of schemes principally concocted by or through the agency of Buchanan democrats, whom the governor had admitted to his confidence to the exclusion of his own party friends. The law provides that the board shall canvass, that is, look into, the count of votes as returned by the county officials. We had unofficial information of an authentic character that gross frauds had been committed. but we had no means of examining and taking the testimony of individual voters, and therefore determined to hear testimony in relation to the election in the several precincts; and if its general character and conduct was intentionally and scandalously fraudulent, we would consider the poll of that precinct so badly tainted as to justify us in rejecting the returns

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sent us. It was a matter of regret that we had not the authority and the means to separate the honest vote from that which was fraudulent ; but in the absence of that power felt it our duty, when the aggregate vote largely outnumbered the number of votes in the precinct, to treat the whole poll as fraudulent. We were confirmed in this position by our own experi- ence and that of our political friends during the first election in Kansas Territory. Both the canvassers, one in Kansas and the other in Washington, had been active participants in the exciting events that to some extent initiated the present rebellion, and had been made aware of the dangerous advantage a lawless body of men could gain by the perpetration of a suc- cessful fraud upon the ballot box, and felt no hesitation in applying the precedent established then to destroy the fruits of illegal voting and ballot box stuffing to this election, though greatly regretting the necessity which impelled us to the exercise of such authority. Our canvass was publie and the rules we had adopted were publicly announced. Evidence was offered and received by us in the cases of Charles Mix and Bon Homme County precincts. In the case of Charles Mix it was shown that about one hundred lowa soldiers, stationed at Fort Randall, were given permission to go across the Missouri River on election day, for the ostensible purpose of gathering plums. That they did so eross the river, and divided in small parties and went to the polls in Charles Mix County and voted. Some rowdyish con duct was also proven.

In the investigation we learned to our satisfaction that at least two-thirds of the entire vote of the precinct was cast by the lowa soldiers, who were not citizens of the territory. The attention of Candidate Jayne was called to this testimony, he being present as well as his opponent, General Todd. Governor Jayne was informed that the board would give him time to offer evidence in rebuttal, when he replied that he thought lowa soldiers had a right to vote. The law expressly provides "that no soldier, officer or private, other than those who resided in the territory prior to and at the time of their enlistment in the army, shall be entitled to vote at the elections in this territory." Being convinced of the grossly illegal character of this Charles Mix County vote, the board of canvassers rejected it.

In regard to the returns from the County of Bon Homme, which the joint resolution charges, though incorrectly, as having been counted by the board, testimony was given by the friends of Candidate Jayne to the effect that the vote returned to the board was not the vote that was cast during the hours appointed by the law for the polls to remain open; but after the close of the poll in the evening the ballot box was forcibly taken from the judges. the ballots destroyed, and a second election held, at which the votes returned to the board were polled. In rebuttal of this statement was the evidence offered on behalf of Candidate Todd that no force was used, but a new polling was demanded by the supporters of Todd on the ground that at the count of the ballots by the judges, after the regular poll was closed. but thirteen of the thirty-nine ballots found in the box were in favor of Todd for delegate, while twenty-six of the thirty-nine persons who voted declared that they had voted for him. That the ballot box had been in the possession of his enemies during the recess at noon. and they were charged with changing the ballots. The board held that, even admitting the claim that the ballots had been changed, the election held after the closing of the polls was of no effect and not the lawful remedy, and therefore rejected the entire vote of that precinet.

The return from the Brule Creek Preeinet in Cole County, which was the only county, excepting Kitson on Red River, where there was more than one precinct, was not returned to the board with the returns made from the other precincts from that county. The claim was made by Candidate Todd that the Brule Creek return was grossly fraudulent, in that a majority of the ballots for his opponent were put into the ballot box the night before the election by minors and non-residents, and he requested time to obtain the evidence which would support the protest. We declined to extend him this privilege. as we considered that he already had had ample time to secure his evidence, and because we did not then believe the reports regarding that precinct which subsequent developments have brought to light. Candidate Todd also requested the board to adjourn its final action one month in order that the returns from the Red River precinets might be secured, averring that the delay in the reception of that return was probably due to the Minnesota Indian troubles. This request was refused, our interpretation of the law being that the requirement "to proceed to canvass" made it the duty of the board to continue in session until the work was completed. We did. however, adjourn from day to day, for several days, when, not receiving the Red River returns, nor any word concerning them, we elosed the canvass and declared the result.

We believe your honorable body will decide the case between these Dakota contestants according to law and arithmetic. The Dakota people are industrious, loyal, and honest- saving the very few who have engaged in these schemes to vitiate the ballot box for personal ends. It is not a matter of vital importance to Dakota Territory which of the two gentlemen claiming the seat in Congress shall succeed, but it is of the first importance that the decision of Congress shall be founded in law and justice. This is what the loyal and law-abiding people of Dakota demand and all they ask for. The honor of the national administration is somewhat at stake. The integrity of our newly-born republican party is on trial. Dakota has been overrun and almost depopulated by hostile Indians on one side, but more vitally assailed by unserupulous politicians on the other. We have confidence that your actien will vindicate the right and place the stamp of disapproval emphatically upon ballot box corruppon.

JOHN HUTCHINSON, PHILEMON BLISS.

CHAPTER XXVI

THE INDIAN CAMPAIGN OF 1863-SIBLEY

INDIAN CAMPAIGN OF 1863, PLANNED BY MAJOR-GENERAL POPE-GENERAL SIBLEY, WIT11 MINNESOTA TROOPS, CROSSES CENTRAL DAKOTA PLAINS-GENERAL SULLY MARCHIES UP THE MISSOURI VALLEY-SIBLEY'S FORCES, EQUIPMENT AND DIFFI- CULTIES-A DRY SEASON-SIBLEY DEFEATS HOSTILES IN THREE BATTLES ; INDIANS DRIVEN WEST OF THE MISSOURI RIVER-IIIS RETURN MARCII-OFFICIAL REPORT- ERRONEOUS OPINION OF NORTHERN PART OF THE TERRITORY-INDIANS KILL AN INDIAN-TREATY BETWEEN YANKTONS AND PONCAS.

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History of Dakota Territory, volume I, Part 48

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1198

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198