UNIVERSITY OF CALIFORNIA
AT LOS ANGELES

THE

MISCELLANEOUS DOCUMENT

OF THE

HOUSE OF REPRESENTATIVES

FOR *HK

SECOND SESSION OF THE FIFTY-FIRST CONGRESS.

1890-'91.

WITH INDEX.

IN SIXTEEN VOLUMES.

WASHINGTON:

GOVERNMENT PRINTING OFFICE.
1891.

CONTENTS OF THE VOLUMES.

Vol. I..N08. 1 to 127, inclusive, except Nos. 12, 13,

14, 76, 77, 78, 108.
Vol. 2.. No. 12.
Vol. 3.. No. 13.
Vol. 4.. No. 14.
Vol. 5.. No. 76.
Vol. 6.. No. 77.
Vol. 7.. No. 7a
Vol. 8.. No. 108, 133, 134, 135

Vol. 9.. No. 128.
Vol. 10.. No. 129, pt I.
Vol. 11.. No. 129, pt. 2.
Vol. 12.. No. 130.
Vol. 13.. No. 131.
Vol. 14.. No. 132.
Vol. 15.. No. 136.
Vol. 16.. No. 137.

Subjects.

No.

Vol.

Alexander, John W., administrator, report of Conrt of Claims on case of. 121 1

Anacostia and Potomac River Railroad, annual report of . 84 1

Army, retired officers, resolution relative to in the civil service 92 1

Astronomical observations for 1886 132 14

Ay res, Asa B., et al., resolution to refer claims to Court of Claims 120 1

Bailey, John C., administrator, report of Court of Claims on case of... 118 1

Burnett, J. C., administrator, report of Conrt of Claims on case of...... 71 1

Barnett, Julia, resolution to refer claim to Court of Claims 90 1

Beachley, Ezra and Jonas, executors, report of Conrt of Claims on case

of 51 1

Boarman, Aleck, resolution to impeach , 117 1

Brashear, Martha, administratrix, report of Conrt of Claims on case of. 97 1

Brown, F. W., administrator, rep6rt of Court of Claims on case of 16 1

Bruen, Capt. John T., resolution to refer claim to Court of Claims...... 98 1

Calhoon, Clement, report of Court of Claims on case of 21 1

Canter, Isaac W., administrator, report of Court of Claims on case of .. 62 1
Capitol, North O street and South Washington Railroad Company, an-
nual report of 95 1

Caruth, Thomas, report of Court of Claims on case of 60 1

Chapin, Virginius P., report of Court of Claims on case of 81 1

Chapman, William H., report of Court of Claims on case of 42 1

Christian Church, of Marshall, Mo., resolution to refer claim to Court of

Claims 1 126 1

Claims, report of Treasury Department in relation to certain specified

in House Ex. Doc. No. 314. Fifty-first Congress, first session 22 1

Clark, Samuel I., assignee, report of Court of Claims on case of.... .... 65 1

Clem, Anderson A., report of Court of Claims on case of 67 1

Clerk of the House of Representatives : ,

Annual report of the clerks and employ 6s in the House 6 1

Report on inventory of public property in possession of.... 10 1

Commissioner of Fish and Fisheries, expenditures by the 5 1

Congressional Library, report on construction of building for the 4 1

Conrad, Ebenezer J. et al., report of Court of Claims on case of 17

Conrad. John D. f report of Court of Claims on case of..... 28 1

248080

INDEX TO HOUSE MISCELLANEOUS DOCUMENTS.

Subject.

No.

Constitution of the United States, relating to violation of the four-
teenth amendment to the

Consular reports

Contested-election cases, digest of 137

Contested-election cases, print digest of, in the Fifty -first Congress ... 105
Court of Claims :

Report of the, on judgments of the 11

Report of dismissed cases by the 40

Creek Indians, protest of delegates of the, in relation to jurisdiction of

Federal courts in Indian Territory 104

Crockett, John T., report of Court of Claims on case of 45

Daub, Ezra, report of Court of Claims on case of 24

Deck, George, report of Court of Claims on case of 54

De Loach, Claiborne, estate of, resolution to refer claim to Court of

Claims 101

Department of Labor, expenditures in the 9

District of Columbia, Zoological Park Commission, final report of 93

Donato, Belate A. et al., resolution to refer claims to Court of Claims.. 115
Doorkeeper, House of Representatives :

Report of property in possession of

Report of sale of waste paper 8

Eckington and Soldiers' Home Railway Company, annual report of 85

Elkins, William A., report of Court of Claims on case of 48

Ely, Robert M. et al., resolution to refer claims to Court of Claims 106

Embry. W. J., executor, report of Court of Claims on case of 64

Fairex, Mathilde M., administratrix, report of Court of Claims on

case of 35

Fish Bulletin, report for 1889 131

Fish and Fisheries, report of the Commissioner of, on expenditures 5

Fish hatchery, resolution relative to, in northern New York 46

Fisher, Isaac, et al., resolution to refer claims of to Court of Claims 110

Fisher, John, et al., resolution to refer claims to Court of Claims 113

Flagg, Robert S. and Thomas G., executors, report of Court of Claims

on case of 61

Flower, Mary J., report of Court of Claims on case of 59

Fort Brown military reservation, relation to rent of 100

Freedmans' Savings and Trust Company, annual report of the commis-
sioner for 1890 -26

Galloway, Thomas S., administrator, report of Court of Claims on case

of 37

Gay, Hon. Edward J., deceased, eulogies upon 108

Geological Survey, bnlletons 62 to 65 136

Georgetown Barge, Dock, Elevator and Railway Company, report of

names of stockholders and condition of 87

Georgetown and Tennallytown Railway Company, annual report of.. -86

Gillilan, Ruth S., administratrix, report of Court of Claims on case of.. 63

Gray, George L., report of Court of Claims on case of 79

Heberlein, August, estate of, resolution to refer claim to Court of

Claims 107

Hightower, Thomas, report of Court of Claims on case of 66

Horse Diseases, report relating to 130

INDEX TO HOUSE MISCELLANEOUS DOCUMENTS.

Subject.

No.

House of Representatives :

Clerk of (Hon. Edward McPherson), annual report of clerks and

employe" of the 6

report on public property in pos-
session of 10

Committees, list of standing and select 2

Doorkeeper, report of property, 7

report of sale of waste paper 8

Galleries of the, removal of partition and, on the south side of 125

Members, list of 1

alphabetical list of 3

Special messengers, resolution to pay 72

Howery , Le \vis, report of Coort of Claims on case of 57

Indian Territory, protest of Creek delegates against bill extending

jurisdiction of Federal courts in 104

Jews in Russia, relative to.... . 103

Keedy, C. M., George W., and Samuel J., executors, report of Court of

Claims on case of 75

Libr.iry of Congress, report on construction of building for 4

Lilly, Elijah, report of Court of Claims on case of . ^ 33

Manson, William T., report of Court of Claims on case of 30

Martin, Edmund H., heirs of, report of Court of Claims on case of 43

Meaher & Meaher, resolution to refer claim to Court of Claims 114

Merrifield, Samuel B., report of Court of Claims on case of 123

Mississippi River, levees of the 127

Mullendore, Daniel M., report of Conrt of Claims on case of 25

National Home for Disabled Volunteer Soldiers, report of the Board of

Managers of the, for 1890 38

Neidlinger, Samuel, estate of, report of Court of Claims on case of 44

New Mexico, the secretary of, letter from the, in relation to Spanish

land-grant court 96

New York, resolution relative to fish hatchery in northern 46

Nichols, Henry C., report of Court of Claims on case of 119

Norton, Sarah E., report of Court of Claims on case of 47

Nutt, J ulia A., executrix, report of Court of Claims on case of 82

Peacock, Martha A., report of Conrt of Claims on case of 53

Phelan, Hon. James, eulogies upon 135

PhetzingtUoruelius, resolution to refer claim of, to Court of Claims.... 116

Pierson, Charles A., et al., resolution to refer claims to Court of Claims. Ill

Ponder, W. M., administrator, report of Court of Claims on case of 55

Pope, Henry L. , report of Court of Claims on case of.......... 94

Public property :

Report of Clerk of House of Representatives on, in possession of. 10
Report of Doorkeeper, House of Representatives on sale of waste

paper 8

INDEX TO HOUSE MISCELLANEOUS DOCUMENTS.

Subject. '

No.

Public Property Continued.

Keport of Doorkeeper, House of Representatives, submitting inven-
tory of 7

Quinn. Robert, report of Court of Claim on case of i 34

Raiford, Philip, administrator, report of Court of Claims on case of 18

Reformed Church, Sharpsburgh, Md., report of Court of Claims on case

of 32

Rogers, Samuel E., report of Court of Claims on case of 29

Roulette, William, report of Court of Claims on case of 68

.Russell, James B., report of Court of Claims on case of 124

Russia, relative to Jews in 103

Saffold, Mary E., report of Court of Claims on case of 99

Secretary of War, resolution requesting the, to furnish information

relative to retired army officers in the civil service 92

Sitting Bull, Chief, resolution relative to arrest and killing of 80

Skaggs, Ewing M., estate of, report of Court of Claims on case of 73

Smith, Grafton F., administrator, report of Court of Claims on case of. 52

Smithsonian Institution, report ot expenditures of the 39

Smithsonian Institution, annual repert for 1890 129

South, William B., executor, report of Court of Claims on case of 36

Spanish land-grant court, letter from the secretary of New Mexico in

relation to 96

Special messengers, House of Representatives, resolution for appro-
priation to pay salary of 72

Spencer, C. O., report of Court of Claims on case of 70

Stone, Jeff. M., report of Court of Claims on case of 50

Stout, Lindsay, representatives of, resolution to refer claim to Court of

Claims 109

Swart, Barnett T., report of Court of Claims on case of 74

Tally, J. M. administrator, report of Court of Claims on case of 56

Thompson, Abel A., report of Court of Claims on case of 102

Tounoir, Lucile, administratrix, report of Court of Claims on case of.. . 23
Treasury Department, report of Second Comptroller in relation to cer-
tain claims included in House Ex. Doc. No. 314 Fifty-first Congress,

first session 22

Turner, John, report of Court of Claims on case of 58

Turuley, Piirmeuus T., report of Court of Claims on case of 19

Tweedy, Robert E., report of Court of Claims on case of

Van Camp, Aaron, report of Court of Claims on case of 81

Von Balsan, R., administrator, report of Court of Claims on case of 27

Voters. (See Constitution of the United States.)

Vulture, Brig, report of Court of Claims on case of 41

Waddell, Charlotte A., executrix, report of Court of Claims on case of. 69

War of the Rebellion, Official Records of:

Series 1, vol. 31, part 1 12

Series 1, vol. 31, part 2 13

Series.l, vol. 31, part 3 14

Series 1, vol. 32, part 1 76

INDEX TO HOUSE MISCELLANEOUS DOCUMENTS.

VII

Subject.

No. Vol.

War of the Rebellion, Official Records of Continued.

Series 1, vol. 3-2, part 2 77 6

Series 1, vol. 32, part 3 78

Washington and George town Railway Company, annual report of 91 1

Walker, Hon. James, eulogies upon 134

Watsou, Hon. Lewis, eulogies upon 133 8

Watson Samuel report of Court of Claims on case of 15 1

Western Miama Indians, report of Court of Claims on case of 83

Wheeler, William B., executor, report of Court of Claims on case of 49

Williams, Mary O., report of Court of Claims on case of 20 1

Woodyard, Mathew, report of Court of Claims on claim of

foung, Thomas P., et al., resolution to refer claims to Court of Claims.. 112 1
Youngs, Fannie, and Henrietta G.,executrics, report of Court of Claims

on case of 31 1

Zoological Park Commission, final report of 93 1

51ST CONGRESS, ) HOUSE OF REPKESENTATIVES. Mis. Doc.
2d Session. ) \ ^o. 137.

DIGEST

CONTESTED-ELECTION CASES

IN THE

FIFTY-FIRST CONGRESS.

COMPILED, UNDER RESOLUTION OF THE HOUSE,

CHESTER H. ROWELL,
CLBRK TO THE COMMITTEE ON ELECTIONS.

WASHINGTON:

GOVERNMENT PRINTING OFFICE,
1891.

Resolved, That there be printed and bound for the use of the House
the usual number, to wit, one thousand six hundred and seven copies
of the Digest of Contested Election Cases in the Fifty-first Congress,
together with an index to the same, to be prepared by the clerk of the
Committee on Elections, for which and for the necessary preparation
and superintendence thereof there shall be paid said clerk by the Clerk
of the House, out of the contingent fund, the sum of five hundred dol-
lars; said sum to be paid when the manuscript of the work shall have
been delivered to the Public Printer.

Passed the House February 5, 1891. (See Eecord, Fifty -first Con-
gress, second session, pages 2198 to 2201.)

PREFACE.

The volumes of this series are known by custom and courtesy as
" digests," but none of them have attempted to be anything more than
compilations of reports, and since the volume compiled by Clarke and
Hall, in 1834, none of them have been fully indexed, and most of them
not indexed at all. In conformity with the plan of the series, this vol-
ume is also a compilation of reports, that is, it contains all the reports
in full ; but an attempt has been made to give in the index a real digest
of the law points discussed in the reports. It is perhaps needless to
say that committee reports, having the form of arguments addressed to
the House, lend themselves much less readily to reduction to digest
form than do the decisions of courts. A consideration of this difficulty
will, it is hoped, explain and excuse some of the shortcomings of the
digest.

On account of the unindexed condition of most of the previous vol-
umes, I have ventured to include under each head of the digest a
reference index to prior adjudications of the same question, where any
exist. This list of references does not profess to be complete; it is con-
fined to the points covered by the reports in this volume, and may not
be entirely complete even as to them, but it will be found to be consid-
erably fuller than the lists of references given in either Paine or Mc-
Crary, and, in the absence of any collected digest of all the Congres-
sional cases, may be of some convenience in looking up precedents. No
attempt has been made to analyze the decisions referred to, except to
indicate the question decided, and generally whether the decision is in
substantial accord with the decision in this volume or not.

In the body of the book some changes have been made from the cus-
tomary form. The abstracts of law points are fuller than heretofore,
and in a form more like that of court reports. The use of different sorts
of type, both in the syllabi and index, will, it is hoped, facilitate rapid
reference.* In addition to the statements of law points, a somewhat
completer statement of facts and findings than is customary has been
made. An election case, unlike most of the cases included in volumes

"The text of the reports being printed from stereotype plates already in existence,
it was necessary to insert the new matter on separate pages, regardless of whether
it would evenly fill them or not. This accounts for the gaps and blank pages be-
tween the head notes and text.

4 PREFACE.

of court reports, retains an individual and historical interest, and some
statement should be made in the head notes which will make it possible
to see at a glance precisely what the individual features of the case are.
For this reason a brief statement is made of the claims of the parties,
the findings of the committee in regard to them, and the points and
grounds of dissent of the minority. This is followed by an outline of
the history of the case in Congress, and the syllabus of law points. At
the beginning of the minority report is generally a fuller statement of
the grounds of dissent, with a syllabus of law points, if any are discussed.
This statement is made on account of complaints made by members in
debate in regard to the character of previous volumes, and to call atten-
tion to features of this volume which it ought perhaps to be taken for
granted that any such volume would contain, but which, for some
reason, have been omitted from its predecessors.

TABLE OF CASES.

Page.

(1) Smith vs. Jackson, Fourth West Virginia 9

Minority report 35

(2) Atkinson vs. Pendleton, First West Virginia 43

Minority report 61

(3) Featherston vs. Cate, First Arkansas 75

Minority report .. 129

(4) Mudd V8. Compton, Fifth Maryland 147

Minority report 161

(5) Threeti;*. Clarke, First Alabama 173

Minority report 185

(6) Posey vs. Parrett, First Indiana 187

(7) Bo wen vs. Buchanan, Ninth Virginia 193

Minority report 201

(8) Waddillvs. Wise, Third Virginia 203

Minority report 227

(9) McDuffie vs. Turpiu, Fourth Alabama 255

Minority report 301

(10) Chalmers vs. Morgan, Second Mississippi , 329

Views of Mr. Honk 349

(11) Langstou vs. Venable, Fourth Virginia , 435

Minority report 469

(12) Miller vs. Elliott, Seventh South Carolina 505

Minority report 533

(13) Goodrich vs. Bullock, Second Florida 581

Minority report 595

(14) McGinuis vs. Alderson, Third West Virginia 631

Minority report 649

(15) Clayton vs. Breckiuridge, Second Arkansas 679

Minority report 711

(16) Keruahan vs. Hooker, Seventh Mississippi . 783

(17) Hill vs. Catchings, Third Mississippi ., 801

Views of Mr. Lacey 809

All the contestees were Democrats; all the contestants, except Mr. Featherston,

were Republicans. Cases 1, 2, 3, 4, 8, 9, 11, 12, 13, 14, and 15 were decided by the com-
mittee in favor of contestants; cases 5, 6, 7, 10, 16, and 17 in favor of contestees.
Cases 13, 14, 16, and 17 were not reached by the House. The case of Eaton vs. Phelan,
Tenth Tennessee, was not decided by the committee.

COMMITTEE ON ELECTIONS.

FIFTY-FIRST CONGRESS.

L. C. HOUK, Tennessee.

WM. C. COOPER, Ohio.

NILS P. HAUGEN, Wisconsin.

J. F. LACEY, Iowa.

JOHN DALZELL, Pennsylvania.

C. A. BERGEN, New Jersey.

F. T. GREENHALGK, Massachusetts.

JONATHAN H. ROWELL, Illinois, Chairman.

S. G. COMSTOCK, Minnesota.

CHARLES F. CRISP, Georgia.

CHARLES T. O'FERRALL, Virginia.

J. H. OUTHWAITE, Ohio.

LEVI MAISH, Peunsylvauia.

L. W. MOORE, Texas.

R. P. C. WILSON, Missouri.

CHESTER H. ROWELL, Cleric.

AUTHORITIES CITED IN REPORTS.

9 Ala., 338 264

13 Ala., 885 264

Archer vs. Allen, Thirty-fourth Congress 16

Atkinson vs. Pendleton, Fifty- first Congress 223

Bell rs. Snyder, Forty-third Congress (Smith, 247) 223, 251

Biddle vs. Wing, Nineteenth Congress (C. &H.,504) 22-2,250

Bisbeeus. Finley, Forty-seventh Congress (2 Ells., 172) 103,223,250,451

Bradley vs. Siemens, Forty-sixth Congress (I Ells., 29ti) 223

Brazie vs. Commissioners of Fayette Co. (25 W. Va.,213) 18

Buchanan vs. Manning, Forty-seventh Congress (2 Ells., 287) 126,223,337

Butler vs. Lehman, Thirty-seventh Congress (1 Bart., 353) 164

Covodevs. Foster, Forty-first Congress (2 Bart., 600, 611) 223

Dean vs. Fields, Forty-fifth Congress (1 Ells., 190) 339

English vs. Peelle, Forty-eighth Congress (Mobley 167) 264

Farrington vs. Turner (53 Mich., 27) .' 24

Featherston vs. Cate, Fifty-first Congress . 223, 635

Frost vs. Metcalfe, Forty-fifth Congress (1 Ells., 289) 223

Fry, Election Cases (71 Peuna. St., 302) 190

Fuller vs. Davidson (Dawson ?), Thirty-ninth Congress (2 Bart., 126) 21

Goodiug vs. Wilson, Forty-second Congress (Smith, 80) 164

Harttws. Hervey (19 Howard's Practice, N.Y., 245) 222,249

Hey wood, fifth edition, 500 223

James vs. The State (45 Miss. R., 575)... 353

Lowry vs. White, Fiftieth Congress (Mobley, 623) 125,635

Lynch vs. Vandever, Fiftieth Congress (Mobley, 659) 168

Mann vs. Cassidy (1 Brewster, Penna., 60) 24

McCrary on Elections, sees. 400, 401, 404 586

104 591

306, 438 303

436-443, 533 164

416 169

Morton vs. Daily, Thirty-seventh Congress (1 Bart., 402) 16

Mudd vs. Compton, Fifty-first Congress 223,251

Newcum vs. Kirtley (13 B. Munroe, 515) 250

Niblackrs. Walls, Forty-second Congress (Smith, 101) 223,250

Page vs. Allen (58 Penn. St., 338) 512

Paine on Elections, sees. 776, 787 47

517 223

496 520

596 437

599 501

340 512

753 164

8 AUTHORITIES CITED IN REPORTS.

Page.

Paine on Elections, sec. 519 222

373 21

Pedigo vs. Grimes (112 Ind., 148) 191

People vs. Bates (11 Mich., 368) 520

People 1-8. Simonson(5N. Y.,22) 24

Porterfield vs. McCoy, Fourteenth Congress (C. & H., 267) 223

Sessinghaus t's. Frost, Forty-seventh Congress (2 Ells., 380) 223,251

Smalls vs. Elliott (minority), Fiftieth Congress (Mobley, 706) 106

Smith vs. Jackson, Fifty-first Congress 223

Staters. Judge (13 Ala., 805) 222,249

Steele vs. Calhoun (61 Miss., 556) 24

Taylor vs. Reading, Forty-first Congress (2 Bart., 661) .- 223

Taylor vs. Taylor (10 Minn., 107) 21

Thoebe vs. Carlisle, Fiftieth Congress (Mobley, 523) 126

Wallace vs. McKinley, Forty-eighth Congress (Mobley, 185) 20,119

Washburn vs. Voorhees, Thirty -ninth Congress (2 Bart., 54) 46,451

Webster vs. Byrnes (34 Cal., 273) 222,249

Whipley vs. McCune (10 Cal., 352) 21

Yeates vs. Martin, Forty-sixth Congress (1 Ells., 386) 223,251

CHABLES B. SMITH vs. JAMES M. JACKSON.

FOURTH WEST VIRGINIA.

The governor of West Virginia issued the certificate of election to
Jackson. Smith claimed that the certificate of election should have
been issued to him, he having a majority of the votes on the face of
the returns, and also that he had received a majority of the legal votes
actually cast.

Both claims are sustained by the committee, the minority dissenting
from the second proposition and in part from the first. (See minority
report, page 35.)

The resolutions presented by the committee were adopted by the
House, February 3, 1890, by a vote of 166 to 0, and Mr. Smith was
sworn in. The debate will be found on pages 948 to 1043 of the Eecord,
but from page 948 to page 1000 it is mostly taken up with the parlia-
mentary question of " counting a quorum."

(1) Kecount. When to be demanded.

Where the statute provides for a recount at the demand of either
party, this demand need not be made on the day of the announcement
of the result of the first count.

(2) Mistake. Power of board to correct.

There is inherent in every body charged with the ascertainment of
the popular will, whether its functions be judicial or ministerial, the
power to correct an error when discovered, and to make its conclusions
conform to the facts.

(3) Abbreviation. The word " twe. n

Where the statute requires the return to set forth the number of
votes received " in words at length," the word " twe " can not be con-
strued to mean twelve or twenty without evidence. It should either
be counted as two or the ambiguity explained by evidence.

(4) County Court. Power in West Virginia to make a record.

The county court in West Virginia has the power to make a record
of its proceedings in regard to elections. " There is inherent in every
such tribunal, and necessarily incident to its very purpose and existence,
the power to make such record as will perpetuate and make available its
legitimate action." And, aside from general principles, it appears from

10 SMITH VS. JACKSON.

an examination of the legislation of West Virginia on the subject that
the county court is more than a mere returning board.

(5) Burden of Proof.

When it is shown that the contestant was elected on the face of the
returns the burden of proof shifts to the contestee.

(6) Officers of Election. Not sworn.

When all the officers are not shown to have been sworn, but no harm
has resulted, it will not vitiate the election, they being de facto officers.
And in West Virginia, where it is provided that the fact of taking the
oath must either appear on the poll-books or be proved to the satisfaction
of the commissioners of the county court before they can count the vote
of a precinct, and the county commissioners did count the vote of a pre-
cinct where the oath was not sufficiently certified on the poll-books, it
will be presumed that they had satisfied themselves of the fact by other
evidence before counting the vote.

(7) Statutes. Directory and mandatory.

Statutes directing the mode of proceeding of public officers are direc-
tory merely, unless there is something in the statute itself which plainly
shows a different intent.

(8) Polling place. Change of.

When the election is held at a different place from that required by
law it does not vitiate the election if injury has not resulted and the
place of voting was generally understood.

(9) Vote. Presumption of legality.

A vote accepted by the officers holding the election is prima facie legal,
and can not be thrown out for illegality unless the presumption of legality
is overthrown by a clear preponderance of competent evidence.

(10) Evidence. What competent to show how a vote was cast.

In the absence of direct proof as to how a voter voted, evidence show-
ing to what political party he belonged, whose election he advocated,
whose friends sustained his right to vote, and kindred testimony may
be admitted.

(11) Evidence. Of declarations of voter.

What the voter said at the time of voting is admissible as part of the
res gestce ; but what he said after the day of the election either as to his
qualifications, or how he voted, or whether he voted, is inadmissible.

(12) Person of unsound mind.

A person having sufficient intelligence to make a valid will, or to bind
himself by ordinary contracts, or to be criminally responsible for his
acts, is a person of sound mind for the purposes of voting.

(13) Pauper. Definition of.

A pauper is one who is continuously supported in whole or in part
out of funds provided by the public authorities for that purpose.

(14) [Residence. What constitutes,

SMITH VS. JACKSON. 11

It takes both act and intention to constitute a residence. An inten-
tion to retain a residence which has been left must be an intention
actually to return to it and reside in it.
(15) Eesidence. Of corporation employes.

Where the statute provides that no person shall be deemed a resi-
dent in any county or district by reason of being employed therein by
any corporation, such employment is not to be construed as preventing
anyone from acquiring a residence at the place of his employment.

JANUABY 23, 1890. Mr. DALZELL, from the Committee on Elections,
submitted the following report:

The Committee on Elections, having had under consideration the con-
tested-election case of Charles B. Smith, contestant, against James M.
Jackson, contestee, from the fourth district of West Virginia, s ibmit
the following report :

At an election held on the 6th day of November, 1888, James M. Jack-
son and Charles B. Smith were the Democratic and Republican candi-
dates, respectively, for election as Representative to the Fifty-first Con-
gress from the Fourth Congressional district of West Virginia. The
former obtained the governor's certificate and now holds the seat. His
right to either is contested by Smith, who claims that he was entitled
to the certificate in the first instance, and according to the votes legally
cast is now entitled to the seat.

The issue to be determined by the committee involves both these
claims.

Was the contestant elected upon the face of the returns ?

It would seem that the contestee originally conceded that he was.
Contemporaneously with the issue by the governor of a certificate of
election to the contestee he made public a proclamation or declaration
not called for by any provision of law, the purpose ot which evidently
was to justify his action in issuing the certificate. (See Record, p. 866.)

In this proclamation the governor says :

J. M. Jackson, who was a candidate for Representative in Congress for the Fourth
Congressional district, alleges that at two polling places at least, in Putnam County,
the election was held at other and different places than those prescribed by law, and
that motions were made before said commissioners to exclude these polls from the
count, which the commissioners refused to do, and that the majority of 171 votes in
said county in favor of C. B. Smith for said office is made up in part by the returns
from said two polling places. It is insisted by said Jackson that under onr statutes
it is in the power of the governor to go behind the returns and inquire into the pro-
ceedings of the county commissioners. On the contrary it is insisted by said Smith,
through his counsel, that "the intention of the legislature was to withdraw from the
governor all power over the election returns whatsoever, except the certifying of
what appeared in the office of the executive department of the State."

The governor's decision was that he could not go behind the returns ;
but it is very clear, from his statement, that prior to the issue of any
certificate, the contestee was of opinion, upon the face of the returns,
that the certificate must be issued to the contestant.

The subsequent action of the contestee is consistent with and in
affirmance of his original concession.

14 SMITH VS. JACKSON.

The contestant in his notice of contest (Kecord, p. 22) offered to
rest bis claim to office on the face of the returns. The issue thus tend-
ered the contestee declined, adhering evidently to his original opinion
that, tested by that standard, he had no title to the seat he now holds.

It is very plain to the committee that the contestant was'elected upon
the face of the returns and entitled to the certificate from the gov-
ernor.

Under the laws of West Virginia (Code, sec. 22, ch. 3) it is made the
duty of the commissioners of the county courts in each Congressional
district, to transmit to the governor a certificate of the result of the elec-
tion within their respective counties, " and in the said certificate shall
be set forth, according to the truth, the lull name of every person voted
for, and in words at length the number of votes he received for any
office."

The Fourth Congressional district is constituted of twelve counties,
and the aggregate vote appearing from the certificates therefrom trans-
mitted to the governor in accordance with law was, as contestant
claims

Votes.

For Jackson 19,8'25

For Smith 19,837

Showing a plurality for Smith of 12 votes. According to this state-
ment Smith, and not Jackson, was entitled to the governor's certificate
of election.

But the count as made by the governor was

Voteg.

For Jackson 19,837

For Smith 19,834

Showing a plurality for Jackson of 3 votes.

The differences between the county returns and the governor's
couut are confined to three counties, viz: Ritchie, Calhouu, and Pleas-
ants.

The commissioners of Eitchie County sent two certificates. One,
dated November 13, shows

Votes.

For Smith 1,972

For Jackson 1,405

The second, dated November 14, shows

Votes.

For Smith 1,973

For Jackson 1,403

The second certificate correctly represented the result of a recount of
the votes, made at the instance of the contestee. The governor ac-
cepted the first and rejected the second certificate, and thus took away
from Smith one vote and added to Jackson two votes.

The law of West Virginia with respect to a count and recount of re-
turns is as follows (Code, sec. 21, ch. 3):

The commissioners of the county court shall convene in special session at the
court-house on the fifth day (Sundays excepted) after every election held in their
county, or in any district thereof, and the officers in whose custody the ballots, poll-
books, and certificates have been placed shall lay the same before them for examina-
tion. They may, if deemed necessary, require the attendance of any of the commis-
sioners or canvassers, or other officers or persons present at the election, to answer
questions under oath respecting the same, and may make such other orders as shall
seem proper to procure correct returns and ascertain the true result of the said elec-
tion in their county. They may adjourn from time to time, and when a majority of
the commissioners is not present their meeting shall stand adjourned till the next

SMITH VS. JACKSON. 15

day, and so from day to day till a quorum be present. They shall, upon the demand
of any candidate voted for at such election, open and examine any one or more of the
sealed packages of ballots and recount the same, but in such case they shall seal up
the same again, etc.

It seems from the second certificate from Ritchie Couuty that the
contestee was dissatisfied with the first couut there made, and de-
manded, as he had a right to do, a recount. This certificate, so far as
material, the law just quoted shows as follows:

The commissioners of the county court of Ritchie County, West Virginia, having
carefully and impartially examined the returns of the election held in said county in
each district thereof on the 6th day of November, 1888, upon a recount of the bal-
lots on the demand of J. M. Jackson, candidate voted for at said election for the office
of Representative in the Congress of the United States, do hereby certify that in said
county for tlie office of Representative in the Congress of the United States for the
Fourth Congressional district of West Virginia

Charles B. Smith, of Wood County, received nineteen hundred and seventy-three
(1,973) votes.

J. M. Jackson, of Wood County, received fourteen hundred and three (1,403) votes.

O. W. Smith received one vote.

Judge Jackson received one vote.

In wiluess wheivof we, the said commissioners, have hereto signed our names this
14th day of November, A. D. Ib88, &c.

This certificate the governor ignored altogether, and the contestee
now seeks to justify his action by saying that upon the making of the
original certificate the county court was functus officio. powerless even
to correct an error; and that a recount cau be had only when the de-
mand therefor is made prior to the issue of a certificate. This conten-
tion is directly in the teeth of the coutestee's own action in demanding
the recount, and is not in the judgment of your committee tenable on
any ground.

The manifest purpose of the law in providing for a recount is that er-
rors may be corrected. There cau be no recount until there has been
a perfec ed count. Whether a recount shall be necessary can not be
determined till the first count is finished. No provision is made in the
law as to the time when the recount must be demanded. There is no
statute of limitations on the subject. To hold' that a recount must be
demanded on the day of the original couut leads to the manifest ab-
surdity, of requiring the candidate to be present, in person or by proxy,
in as many different places as there are couuty courts in his district at
one and the same time. In the district in question there are twelve
counties.

If the recount was lawful, as undoubtedly it was, so then was the
certificate of its result, and the governor exceeded his powers in ac-
cepting the first and ignoring the second certificate from Ritchie
County.

He committed a similar error with respect to Calhoun County.

The commissioners of that county also returned two certificates.
The first, dated November 12, 1888, showed for Jackson 919 votes, for
Smith, 630. The second, made to correct a clerical error, showed the
same number of votes for Jackson, but 632 votes for Smith instead of
630, and is as follows :

(Record, p. 857.) At a regular session of the county court of Calhoun County,
held at the Court House of said county on Monday, the 7th day of January, 1889, on
motion of A. J. Barr, it is ordered by thid court that the returns of the election held
in this county on the 6th day of November, 188-i, as certified by the county court,
held on the l^th day of November, 1888, be corrected, it appearing to the court that
there is a clerical error in the returns as certified, to wit : That the record of the re-
Bult of said election for a Representative in the Congress of the United States shows
that Charles B. Smith received six hundred and thirty votes, which should have
bn C. B. Smith received six hundred and thirty-two votes.

16 SMITH VS. JACKSON.

It is therefore ordered by this court that the record of this count be corrected, so as
to show that C. B. Smith received six hundred and thirty- two votes, as shown on
the face of the returns of said election, and that a copy of this order be certified to
the governor of this State, and to C. B. Smith, at Parkersburg, W. Va.

The Governor ignored this second certificate and thus deprived
Smith of two votes. He assigned no reason for his action, but counsel
for coutestee now seek to justify it on the grounds hereinbefore stated
that upon the making of the first certificate the county court was
functus officio, and had no power to correct an error, however plain and
palpable, after the certificate had been issued.

It has been held that where the judges of election discover a mistake
upon a recount of the ballots, their supplemental return is entitled to
be received ( Archer v. Allen, Thirty-fourth Congress); and that errors,
whether fraudulent or accidental, may be corrected at any time, even
after certificate of election issued by the governor. (Butler v. Lahinan,
Thirty-seventh Congress; Morton v. Daily, Thirty-seventh Congress.)

It is believed that there is inherent in everybody charged with the
ascertainment of the popular will, whether its functions be judicial or
ministerial, the power to correct an error when discovered and to make
its conclusions express the true will of the people as disclosed by their
suffrages. And it is especially to be noted that there is no suggestion
from any quarter that the certificates from Kitchie and Calhoun Coun-
ties, ignored by the governor, did not accurately show the exact num-
ber of votes legally cast for the respective candidates, while on the con-
trary it expressly appears that they did so show.

But the technicalities which unfortunately prevailed in the mind of the
governor to defeat in part the true will of the voters in Kitchie and Cal-
houn Counties would not have affected the result had he stopped there,
and they dwindle into insignificance when compared with the results of
the strange mental process by which the returns from Pleasants County
were perverted.

According to the returns from that county, Smith had received 697
votes and Jackson 802 votes. These 802 votes the governor raised to
81-2 by a most extraordinary feat of political legerdemain. We quote
from his unauthorized proclamation or declaration to which we have
heretofore referred, as follows .

The com mission ere of Pleasants County certify as to J. M. Jackson's vote as follows :
" J. M. Jackson received eight hundred and twe votes." The words and letters are
too plain for any mistake. For the reasons heretofore given there is no authority to
go behind the returns. The vote certified must be counted if enough appears to as-
certain the meaning. In an action upon a note it was held : "There was no error in
admitting the note sued on in evidence, because the amount thereof is written four
Jtitud and two and 50-100 dollars." (Glenn vs. Porter, 72 Ind., p. 525.)

So it has been held that the abbreviation in a declaration, "Damages one thoua
dollars" is not error. (1 W. L. J., Mich., 395.)

If enough appear to make the return intelligible it should be made so.

This can not be done without striking out one letter and inserting another, or by
supplying the seemingly omitted letters. Acting upon the face of the paper the lat-
ter appears more in consonance with adjudged cases. The least number would give
to said Jackson eight hundred and twelve votes. It will be so entered.

Thus the governor. It is difficult to treat this matter seriously. It
seems like a farce to argue about it. It is hard to believe that any
mature man, of ordinary intellect, and even to an extent honest, when
dealing with the sacred right of suffrage could cheat himself into a
justification of such conduct, much less expect to cheat anybody else.
The very fact that the governor issued to the public his extraordinary
proclamation explaining his reasons for granting to the contestee the
certificate which plainly belonged to the contestant is a confession of

SMITH VS. JACKSON. 17

guilt. The puerile reference to law cases, one bearing on the construc-
tion of a promissory note, the other on a declaration, neither of them
having the remotest possible analogy to the question in hand shows
the straits to which the consciously guilty party was driven. The gov-
ernor knew could not help knowing even if a poor penman omitted to
close his o so that the word looked like t-w-e, instead of t-w-o, that the word
intended was two. Upon general principles he was bound to presume
that the three letters expressed the whole word, but he was especially
bound to so assume in this case, because the law, of which he pretended
to be so tender, required that " the certificate shall set forth, according
to the truth, the full name of every person voted for, and in words at
length the number of votes he received for any office."

The law, therefore, told him that the word about which he pretended
to doubt was not an abbreviation but a number written in words at
length. He gratuitously assumed the violation of this law by the county
court making the certificate, as well as did violence to the commonest
kind of common sense when he tortured these three letters into the word
" twelve."

He knew furthermore that "twe"is not now, never was, and probably
never will be amongst sane men an abbreviation of twelve, or of twenty,
or of any number known to an American. And he knew again that
the letters were intended to express a number, and that there is no num-
ber known to the English language written with three letters, the first
of which is "t" and the second " w" except the single number two.

But even if it were conceded that there could possibly have been a
doubt as to what the word meant, then it was a patent ambiguity, which
any law student could have told the governor it was his duty to ex-
plain by evidence. This he was bound to do, and could very readily
have done, as will clearly appear hereafter. Had it been impossible for
him to do so, the only legal alternative remaining was to strike out the
word altogether as insensible, and read the return 800.

Neither process would have given the certificate to the contestee.
The governor therefore guessed enough to give to that gentleman
three of a majority.

The true vote in Pleasants County for Jackson was 802, and not 812.
Nobody now claims, nor did anybody ever claim, that it was in fact
anything else.

Counsel for contestee, however, without attempting to defend a trick
indefensible, ingeniously argued before the committee that the governor
had no legal standard by which to explain the so-called doubtful word,
and that no competent legal evidence has been produced by the con-
testant, to show that the true vote in Pleasants County was other than
as counted by the governor.

The argument is, that under the laws of West Virginia the commis-
sioners of the county court do not constitute in any proper sense a court
of record, but are merely a returning board, having no judicial func-
tions, except when making a recount, and no authority to evidence
their action except by the issue of a single certificate, which is to be
sent to and deposited with the governor.

Upon the faith of this proposition it is contended, that the only legal
record evidence of the vote in Pleasants County, as ascertained by the
county court, is the certificate sent to the governor, and that the cer-
tificates procured by the contestant from the clerks of the county
courts and offered in evidence, showing the results of the elections in
the several counties, are not competent evidence.
H. Mis. 137 2

18 SMITH VS. JACKSON.

These certificates, it is contended, were made without authority of
law, and at the instance of a court having no right to make H record.

In support of this proposition counsel cited Brazie v. the Commis-
sioners ot Fayette County, decided by the supreme court of West Vir-
ginia, and reported in 25 W. Va., p. 213. In the judgment of the com-
mittee, that case does not sustain the contention. The question
material here does not seem to have been necessarily involved in the
case at all. The case arose upon an application for a writ of prohi-
bition, to restrain the commissioners of a county court from going into
a jndidal examination in an election case outside of the returns made
to them, to ascertain whether the precinct commissioners had certified
and returned certain votes not entitled to have been cast.

The court held, that the judicial functions of the county court in an
uncontesfed election case did not extend beyond the ascertainment of
the result from the papers laid before them, and whether such papers
are in fact such genuine, intelligible, and substantially authenticated
returns as are required by law.

True, in the course of the opinion the judge delivering it said, that if
the power of the commissioners were enlarged so as to include powers
beyond those mentioned they would be made a tribunal by implication
only, and "a tribunal which keeps no record of its proceedings, and
from whose judgment there lies no writ of error or appeal," but the case
is as well decided without this sentence as vith it; it has no reference
to any question necessarily involved in the issue, and is the merest
dictum. Moreover the record here referred to is not the record of what,
under the court's decision, the commissioners of the county court had
authority to do, but a record of what they had no power to do. It
is not the existing tribunal of which the court is speaking, but of a tri-
bunal to exist only by implication.

Even if it be conceded that the functions of the county court are min-
isterial, and that in their exercise it makes no such record as imparts
absolute verity, and to which a bill of exceptions will lie, still it by no
means follows that it makes no record at all. There is inherent in
every sueh tribunal and necessarily incident to its very purpose and
existence, the power to make such record as will perpetuate and make
available its legitimate action. This is a principle of universal appli-
cation.

But aside altogether from general principles it will sufficiently appear
from an examination of the legislation of West Virginia on the subject
of elections, taking that legislation as a whole, that the county court is
more than a mere returning board.

To that court is intrusted the duty of fixing voting places. (Code,
sec. .5, ch. 3.)

To it are intrusted also the power and duty of naming election com-
missioners. (Ibid., sec. 6.)

To it are returned certificates from the district canvassers, the bal-
lots cast, and one set of the poll-books. Its clerk is made by law the
custodian of these records. (Ibid., sec. 20.)

When about to exercise the functions of the county court with respect
to election returns the commissioners convene in special session. The
court -o convened has power to summon witnesses, to administer oaths,
"to make such orders as shall seem proper to procure correct returns,
and ascertain the true result" of the election. It has power to make a
recount, and is charged with the duty of so doing upon .demand
properly made. A court which is a mere returning board, of course,
would uot need to meet in special session. Such board necessarily

SMITH VS. JACKSON. 19

would have only one kind of session, not two kinds, an ordinary and a
special session.

Provision is expressly made by section 4G, Acts 1881, chapter 5, for a
complete record of all the proceedings of the county court, both those
which relate to its general jurisdiction, exercised at its ordinary sessions,
and those which relate to its exceptional jurisdiction exercised at its
special sessions. The provision is :

The county court of every connty shall provide two record books for the use of the
court, in one of which shall be entered all the proceedings of the said court in rela-
tion to contested elections ; all matters of probate ; the appointment of appraisers of
the estates of decedents, and the appointment and qualification of personal repre-
sentatives, guardians, committees, and curators, and the settlement of their accounts;
all matters relating to apprentices, and in the other of said books shall be entered all the
other proceedings of the said court.

But in addition to the record thus provided for, there are other pro-
visions of the law with which the position assumed by contestee's coun-
sel and now under discussion are inconsistent.

By section 22 it is prescribed that when an election is held in a county
or district for. any or all of some twenty-two different officers State,
county, and Federal " the commissioners of the county court, or a ma-
jority of them, * * * shall carefully and impartially ascertain the
result of the election in their county, and in each district thereof, and
make out and sign as many certificates thereof as may be necessary.
* * * The said commissioners shall sign separate certificates of the
result of the election within their county for each of the offices specified
in this section which is to be filled ; " that is, separate certificates for
each of the twenty different offices, State, county, and Federal.

Section 23, still preserving the plural number and speaking of cer-
tificates, makes provision for the disposition of these certificates. As
to certain offices, one of the certificates is lo go to the governor ; as to
certain other offices, one is to go to the secretary of state ; as to certain
offices, one is to go to some designated public officer ; the other to the
candidate elected.

In all cases, with respect to every office, it is the duty of the court to
sign separate certificates. As, of the separate certificates directed to be
made in the case of a candidate for Congress, one only is to go to the
governor, and, as no provision is made for the giving of the other to the
candidate or to any public officer, it necessarily remains with the clerk
of the court.

By section 5 of chapter 130 (code of West Virginia)

A copy of any record or paper in the clerk's office of any court, or in the office of
the secretary of state, treasurer, or auditor, or in the office of surveyor of lands of any
county attested by the officer in whose office the same is, may be admitted as evi-
dence in lieu of the original.

*******

Your committee are therefore clearly of the opinion that, under the
laws of West Virginia, it was competent for the governor and it was
his duty, to make intelligible if unintelligible the certificate as to the
vote in Pleasant County, by consulting the certificate and record of that
vote on file in the clerk's office of that county, and that in default of
his having done so it is competent for them and is their duty now to
do it.

It is conceded that ever since the passage of the West Virginia act
of 1882, which we have been discussing, it has been the custom of the
county court to keep on file a duplicate certificate, showing its conclu-
sions with respect to the election of a Representative to Congress.
Such being the case, even if your committee were- not impressed with

20 SMITH VS. JACKSON.

the belief that the argument now made by the contestee involves no
more than a mere technicality without merit, they would still consider
that the adoption by them now of a new construction of the law, con-
trary to that so long generally adhered to as the true one, would be on
their part a crime not very much less than that practiced by the gov-
ernor when he gave to the coutestee the certificate that belonged to the
contestant.

In other words, your committee believe, that if the ease was one of
doubt, as it is not, the practice for so many years of the parties who
made the law of 1882, and of the parties for whom it was made in con-
struction thereof, is conclusive upon them in this proceeding.

And they are of opinion that, on the face of the returns, the contest-
ant was elected by a majority of 12, and was entitled to the governor's
certificate of election.

Such being the case, the contestant is now to be treated as if he had
received the certificate, and the onus is cast on the contestee to show
that the returns, if truly made, would elect him. (Wallace vs. Mc-
Kinley, Forty-eighth Congress.)

This he attempts to do in his brief submitted to the committee, by a
series of propositions quite as technical and void of merit as is the con-
tention by which he seeks to retain the benefit of the certificate wrong-
fully issued to him.

In eight districts, in which he had an aggregate vote of 588 and the
contestant an aggregate vote of 1,083, he asks that the totnl vote be
excluded from the count for various reasons, in one district for one rea-
son and in another district for another. His proposition will be found
to resolve itself into a demand that the voters of these eight districts
shall be disfranchised for reasons with which the voters themselves had
nothing at all to do, for no fault of theirs. Xo one will deny that to
sustain this contention strong and couvinciug reasons must be assigned.
And it is only fair to say, that the leading counsel for contestee in his
argument before the committee, admitted the purely technical charac-
ter of the objections to the vote in these eight precincts and declined
to press them. As to one precinct only the argument was pressed by
the assistant counsel of the contestee.

An examination of the reasons urged for the disfranchisemeut of the
voters of the several precincts named, taking them in their order, will
justify counsel in his concession as to their purely technical character.

The first precinct complained of is Ebenezer precinct in Calhoun
County.

Here the contestant received 39 votes and the coutestee 19. All are
asked to be excluded because it is alleged that it does not appear that
the commissioners who conducted the election were sworn.

The record shows that on the poll-book returned to the county clerk's
office the oath appeared at length and in the form prescribed by law,
subscribed by each and all the commissioners, but the jurat is irregular
and indefinite. It reads as follows :

Subscribed and sworn to before me as one of the commissioners, L. F. Law, this

day of November, 1888.

PETER CONLEY.

Both Law and Conley were commissioners, and either had the power
to swear all the rest. It is very clear, even from the imperfect record,
that all took the oath by subscribing to it, and that as to two at least
the certificate is conclusive. Where part of the officers are sworn,

SMITH VS. JACKSON. 21

others not, the election is valid. (Fuller v. Davisou,2 Bart., 126.) Two
things are to be noted in this connection : first, that sworn or unsworn,
all the commissioners were de facto election officers, and, second, that
no harm resulted to any one, either the public or an individual voter,
from their failure to be regularly sworn. All authorities agree that
the acts of de facto officers are to be accepted and treated as valid so
far as the public and the candidates are concerned. (Paiue on Elec-
tions, sec. 373. and cases cited.) It is a well-settled principle of law,
and a very ancient one, u that the act of an officer de facto, where it is
for his own benefit, is void * * * but where it is for the benefit of
strangers, or the public, who are presumed to be ignorant of such de-
fect of title, it is good." (Cro Eliz, 699.)

It has been repeatedly held that a certificate of unsworn officers even,
is prima facie, and the burden is on the contestant to show that the
errors committed .affected the result or rendered it uncertain. (Taylor
vs. Taylor, 10 Min., 107 ; Whipley vs. McCune, 10 Cal., 352.)

It is contended, however, that this principle does not apply in this
case because the law of West Virginia provides :

The said oatn shall appear properly certified on one of the poll-books of every
election, and in no case shall tbe vote taken at any place of voting be counted unless
said oath so appears, or unless it be proved to the satisfaction of the commissioners
of the county court, convened at the court-house, as hereinafter required, that the
oath was taken before said commissioners, canvassers, and clerks entered upon the
discharge of their duties.

But the contention must fail and the argument be against the con-
testee for the manifest reason, that unless the oath had been taken the
votes at this precinct could not have been counted. The taking of the
oath was to be made to appear either upon the poll-books or by proof
to the satisfaction of the county commissioners. These commissioners
had power, "if deemed necessary, to require the attendance of any of
the commissioners or canvassers, or other officers or persons present at
the election, to answer questions under oath respecting the same, and
to make such other orders as shall seem proper to procure correct re-
turns and ascertain the true result of the said election in their county."

The commissioners of the county court must be presumed to have
done all things within their power necessary to be done in the perform-
ance of their duty in accordance with law. They can not be presumed
to have done anything unlawful. The votes could not have been law-
fully counted unless the election officers appear to have been sworn,
either by the evidence of the poll-book or by other evidence satisfactory
to the commissioners. The votes were counted, and if it be true that
the swearing of the officers is not proven by the poll-book, it must have
been otherwise proven to the satisfaction of the commissioners.

No reason, therefore, has been shown why your committee should
disfranchise the voters of this district.

The next district sought to be disfranchised in the interest of the cou-
testee is Kentuck precinct, Jackson County, where there were 152 votes
for contestant and 72 for contestee.

The complaint here is that no vote was returned on the poll-books by
the precinct commissioners nor any certificate in the case of the candi-
dates for Congress.

The law of West Virginia (section 18, chapter 3, Code) requires
that upon the close of the polls there shall be read from the ballots,
one at a time by one of the commissioners, the designations of the
offices to be filled and the names of the persons voted for for each office.

22 SMITH VS. JACKSON.

The ballot shall then be handed to another of the commissioners, who
if satisfied that it was correctly read, shall string' it on a thread.

The contents of the ballots as they are read shall be entered by the clerks under
the supervision of the commissioners on tally papers for the purpose by suitable marks
made opposite to or under the name of each person for any office to be filled.

[Sec. 20] "As soon as the results are ascertained the commissioners
or a majority of them * * * at each place of voting shall make out
and sign two certificates thereof [according to a prescribed form] and
transmit one to the clerk of the county court. They shall also seal up
the ballots, and send them with one set of the poll-books to the said
clerk."

A reference to the certificate (Record, pp. 341-2-3 ; 351-2) will show-
that the certificates were made and signed by the commissioners hold-
ing the election, and returned to the clerks of the county and circuit
court, as required by law, but that the names of contestant and con-
testee did not appear in said certificate, nor the office for which they
were candidates and received votes. But their names were on the
ballots cast at said precinct for said office, and the ballots were counted
by the commissioners of election, and their names were written down
by them on the tally-sheets opposite or under the designation of the
office for which they received votes, and the number of votes which
each received was designated on said tally-sheets, to wit, 152 for con-
testant and 72 for coutestee, in the same manner as was done with re-
spect to the names of all other candidates voted for at said election,
and the tally-sheets were returned with the certificates and the ballots to
the clerk of the county court. The aggregate votes appearing thereby
to have been cast for contestant and contestee were one less than the
highest number appearing to have been cast for any other two oppos-
ing candidates. When these papers reached the commissioners of the
county court, counsel for coutestee demanded a recount of the votes
for Jackson County, as to Representative in Congress, as he had the law-
ful right to do. Under this demand the commissioners of the county
court recounted all the ballots cast for Representative in Congress in
that county, and upon that recount the number of votes appearing to
have been cast for the contestant and contestee were the same as ap-
peared upon said tally-sheets, and including these votes, the result in
the county was, for contestant, 2,272 votes, and 'for contestee, 1,886
votes. And this result was certified to the governor.

The only irregularity here seems to have been a clerical error, in the
failure of the election commissioners to insert in the certificate the re-
sult of the election at that precinct as to Representative in Congress.
They did ascertain the result and wrote it correctly on the tally-sheets,
and when the county commissioners counted the ballots at the demand of
contestee's counsel, they obtained the same result, and the ballots were
there and inspected by the commissioners, and presumably by the con-
testee's attorney who made the demand for recount.

But this failure of the commissioners of election to make return of
the votes at this precinct could not have the effect to disfranchise the
persons who voted there, and the law of West Virginia especially pro-
vides for such a case. In declaring the powers and duties of the county
commissioners in ascertaining and declaring the result of the election
in their respective counties, the following language is used :

They may, if deemed necessary, require the attendance of any of the commissioners
or canvassers or other officers or persons present at the election, to answer questions
under oath respecting the same, and may make such other orders as shall seem proper
to procure correct returns and ascertain the true result of the said election in their
county.

SMITH VS. JACKSON. 23

The presumption as Well as the proof is, that the county commis-
sioners ascertained, by the exercise of their powers of examination, the
true result of the election, t.iid certified accordingly. There is no pre-
tense that they did not.

Counsel for contestee say that he, the contestee, made no demand for a
recount of the vote at this precinct, and argue that the fact of such de-
mand should appear of record. There is no law requiring the demand to
be made matter of record. There is no record of demand made in any
precinct, though contestee admits having made such demand in some.
There is affirmative proof (Record, p. 724) that demand was made for a
recount in this precinct by contestee's attorney, and neither the attorney
nor the contestant was called to rebut this evidence.

The matter does not seem material, nor to merit discussion, since
there is no pretense that the commissioners in the exercise of their
legitimate functions did not ascertain the true vote in this precinct; no
pretense that it was not truly declared ; no pretense that any voter
suffered anything by the alleged irregularity; in fact, nothing to take
this case out of the or.diijary rule of law, that statutes directing the
mode of proceeding of public officers are directory merely, unless there
is something in the statute itself which plainly shows a different
intent.

Contestee further claims that the returns from Pine Log precinct,
Jackson County, should be excluded. His charge is that ''there was
such misconduct and fraudulent acts upon the part of those who con-
ducted the election as to render such poll and the votes cast respect-
ively for contestant and for contestee null and void ; that is, 139 votes
for contestant and 92 votes lor contestee."

From the evidence the facts appear to be as follows : Thomas Rorden,
John McKown, and W. T. Dernberger were the commissioners conduct-
ing the election at this precinct. C. C. Nesselrood, a witness for con-
testee (p. 317-1*) testifies, that the votes were counted during the night
following the day ot the election, and that he remained there while the
vote was being counted and until it was completed ; that after midnight
witness went to sleep and awoke after sleeping about two hours; that
when he awoke Dernberger, one of the commissioners, was asleep on a
bench, and MeKown, another of them, was smoking in the back part of
the house; and the other commissioner, Rorden, was being assisted in
the counting by W. E. Dernberger, son of the commissioner, and W.
H. Rordeu and Asberry Davis were stringing the votes; that Deru-
berger, the commissioner, and his son were both Democrats, the former
being a member of the Democratic county committee; that Davis is a
Democrat, and took the place of McKown in the counting. By infer-
ence, therefore, McKown is a Democrat, and Rorden was the Republi-
can commissioner. This is the only witness who testifies as to the con-
duct of the election at that precinct.

The evidence does not show that the ballot-box was in the custody
of any one of the commissioners so as to require it to be sealed. Even if
it was out of the custody of Deruberger, from the fact that he was asleep,
it was not out of that of McKown who was present in the room, and the
counting proceeded under his observation, and his place was tilled in
the operation of counting by a Democrat. There is not the slightest
evidence tending to show that there was any tampering with the ballot
or returns, or any fraud of any character. All that was done was in
the presence of at least two of the commissioners who were awake.

It appears from the evidence of Lemley (pp. 724-'5) that the return
froni this precinct did not show any votes for contestee, but 13U votes

24 SMITH VS. JACKSON.

for contestant, a mere clerical error in failing to write into the return
contestee's vote, but, under the recount which was demanded by con-
testee, the votes for him at this precinct were counted by the commis-
sioners of the county court, and the number of them, 93, included in
their return to the governor.

It is to be observed that no allegation of any specific act of fraud is
alleged. Tour committee are asked to presume that fraud was com-
mitted because it might have been committed, and this in the absence
of any pretense that a single legal vote was excluded from, or a single
illegal vote was included in, the result announced.

Your committee do not know of any principle of law that would
justify them in so finding. They understand the law to be as declared
in Mann v. Cassidy (1 Brewster (Penna.), 60).

An allegation of fraud committed by election officers is immaterial unless it be also
stated that the result has been affected.

The votes in Pine Log precinct should be counted as returned.

The next precinct complained of is Boyer precinct, Putnam County.

Contestee charges that the voting place in 4his precinct, established
by order of the county court, was McGill's post-office, but that the
election was held at Isaac's Branch school-house, from one-half to three-
quarters of a mile distant from the post-office. (Record, p. 33.) The
evidence tends to prove the above statement, but it is not claimed, nor
does the evidence tend to show that any person was deceived or pre-
vented from voting thereby. Two witnesses only are examined by con-
testee in relation to this precinct, and one of them (Fowler, pp. 408-9)
says that it was his understanding from the time he knew of the elec-
tion, that it was to be held at the Isaac's Branch school-house, and that
every voter in the precinct voted at said voting place, at said election,
except one, and he was too sick to go to the polls. The other witness
(Dunlap, p. 410), corroborates Fowler generally, and" in addition, says
that the school election in 1887 was held at the same place. So that
contestee, by his own witnesses, proves that no voter was wronged out
of his vote, and that he was not injured by this change of voting places.

This case calls for the application of the rule which protects the
voter against disfranchisement from the default of a public officer when
such default has resulted in no injury to any one. (Farrington v. Tur-
ner, 53 Mich., 27; People v. Simonson, 5 1ST. T., 22; Steele v. Calhoun,
61 Miss., 556.)

The next precinct asked to be excluded presents facts very similar to
the last, and is governed by the same principles.

Thomas School-House precinct, Putnam County: Contestee con tends
that the legal voting place for this precinct was the residence of Josiah
C. Thomas, and that the election was held at the Thomas School-House,
about three-quarters of a mile distant from said residence.

Josiah C. Thomas is the only witness examined in relation to this ob<
jection and he was introduced by contestee ( Record, pp. 410-11). He says
that the voting place was established at his house in 1849 or 1850 by an
act of the legislature of Virginia. This is not the way to prove an act of
the legislature. It probably amounts however to proof that this was the
voting place of the precinct by common consent, for he says they con-
tinued to vote there down to and including the Presidential election of
1880, that soon thereafter he spoke to some parties to have it changed,
that word afterwards came that it had been changed to the school-
house, that this was generally understood, and that every election since
1880, including the one in question, has been held at the school-house,

SMITH VS. JACKSON. 25

and that that has been the voting place of the precinct since that time
according to common understanding.

Under this evidence, one of these places seems to have been estab-
lished by custom, or common consent. At the time of the election the
school-house was the legal voting place, and the subsequent order of
the county court fixing it as the legal voting place was unnecessary, as
it had already before that time recognized it as such by counting and
considering the votes at former elections there cast. There is no pos-
sible pretext for assailing this precinct.

The contestant, in his notice of contest, specified three precincts
where the election was not held at places designated by law, viz., Saudy-
ville, Jackson County; Reedy and Curtis, in lloaue County, at each
of which the contestee received majorities greater in the aggregate than
the majority received by contestant at the precincts challenged, for like
reasons, by the contestee in his reply. The facts are about the same in
the cases on both sides. No voter appears to have been deprived of an
opportunity of voting by reason of the fact that the election was not
held at the place designated by law.

The contestant did not press these objections made in his notice of
contest. If he had they must have been overruled upon the principle
already announced.

In Walton precinct, Roane County, the contestee claims that the
ballot-box was in the custody of one of the commissioners of election
alone, in violation of law, and that the vote at this precinct, where con-
testant had 131 plurality, should be rejected for this reason.

The section of the law relating to this subject is as follows (Code,
ch. 3, sec. 14) :

The ballot-box shall have an aperture in the lid or top thereof to receive the bal-
lots of voters. While the polls ai'O open it shall be kept where it may be seen by the
voters, and after the polls are closed, and until the votes are counted and the certifi-
cates of the result .are signed, shall remain in the immediate custody of the com-
missioner, or any one of them, with the consent of the others. But it shall not be
opened unless two of them at least be present, and if left at any time in the custody
of one of the number, shall be carefully sealed so that it can not be opened or any
ballot taken therefrom or entered therein without breaking tbe seal, and the others
shall write their names across the place or places where it is sealed.

The facts are as follows :

The ballot-box was a firm wooden box with a sliding lid with a hole
through the top to receive the ballots. There was a lock on the box
but no key to it ; the lid would slide easily ; tbe lid was fastened with
a nail which could be drawn out with the fingers. The commissioners
of election were N. K. Walker, H. O. Rock, and J. C. Garvin ; the first
two Democrats and the last a Republican ; on the day of the election
the commissioners went to dinner at a hotel near by, and Garvin had
the box ; there was a seal over the aperture in the lid (p, 469) ; Garviu
finished dinner first and took the box under his arm and went to a
store about thirty or forty steps from the hotel, and in not more than
five minutes Walker followed him there; contestee's witness says if box
was sealed ballots could not have been put in or abstracted without
the same being detected, but could if it was not sealed. They com-
menced counting ballots in the evening of the 6th and continued until
3 a. m., of the 7th, then took a recess until after breakfast and finished
counting at 10 p. m. of the 7th. The counting was done at Mr. Uiley's
hotel upstairs; during the count on the 7th they halted for a rest and
Walker and Rock went out and left Garvin and the two clerks with
the ballot-box, which was then sealed. Walker returned in a few min-
utes and found only Garvin and Chris. Summers, both Republicans, in

20 SMITH VS. JACKSON.

the room, standing, one on either fide of the table on wlrch the ballot-
oox was. Walker testifies for contestee that he saw nothing in the
conduct of Garvin or Summers which led him to suppose that there
had been any tampering with the ballot-box, and that there was noth-
ing to indicate that there had been ; that he knew Garvin well, and did
not believe he did or would tamper with the ballot-box, or permit it to
be done ; that the result of the election was about as usual at that pre-
cinct, and nothing in it to indicate that there was any tampering,
and that the number of ballots tallied with '.he number of names ou
the poll -books. There is a total absence of evidence tending to show
any fraud or improper practices on the part of any one in conducting
the election.

The evidence fails to show that the box was " left at any time in the
custody of one of the number" in contemplation of the law. While
they were at dinner it was as much in the custody of the one who did
not have manual possession as it was in his who did. Besides, at that
time it was sealed. On the other occasion it was not left in Garvin's
custody in contemplation of law or in tact. The others stepped out
only momentarily. The sealing was to be done only when the two
turned it over to the third, thereby expressly charging him with the
custody.

Besides, if there was any violation of law it was only technical, and
did not tend to the injury or prejudice of the contestee, and can not
deprive the voters of the right of having their votes counted as cast.

The same rule of law applied with respect to Walton precinct applies
here. There was no evidence of bad faith or injurious results, nor was
the result of the election rendered unreliable by reason of anything
charged against the election officers.

The innocent voters of this precinct can not be disfranchished upon
a mere presumption of fraud, even if the circumstances would justify
it, as they do not.

The objection made to the vote of the Murphy's Mill precinct is of
such a frivolous character as to merit but little discussion. It is, that
the oath of the precinct commissioner does not appear properly certi-
fied on the poll-book. It was not properly certified because Marion J.
Bickle, a justice of the peace who administered it, signed the jurat
" Marion J. Bickle, in ar.d for Clay district, Wood county, W. Va.,"
omitting the words ''justice of the peace" alter his name.

He was in point of fact, a justice of the peace as the evidence shows.
The less comment made on this objection the better, one would think,
for the contestee.

The next objection is like unto the last, and relates to Wadesville
precinct, Wood Counr> . The objection here again relates to an alleged
irregularity in the jurat. The oath was adminstered by T. J. Sands,
one of the commissioners of election, but he omitted to sign with his
official title.

That the oath was administered by him, that he was a commissioner
and by law authorized to administer it, aie facts not capable of being
called in question.

Tbe matter does not seem to merit discussion.

Bearing in mind that the, contestant was in the first instance entitled
to the governor's certificate and had a majority of twelve, it appears
from our examination of the case thus far, that he still retains that ma-
jority, and we address ourselves to the question as to whether it has
been overcome by proof as to the illegal votes claimed to have been cast
on both sides.

SMITH VS. JACKSON. 27

To qualify one to vote in West Virginia he must be a male citizen of
the United States, twenty-one years of age, must have resided in the
State for one year next preceding the election, in the county sixty
days, and must be a bona tide resident of the election district in which
he claims the right to vote. Paupers, convicts, and persons of unsound
mind are not voters.

By the record and briefs filed in this contest, a large number of
votes are attacked by both parties. In considering these votes so at-
tacked the committee deem it proper to state generally the rules by
which they have been governed in determining the question of legality
or illegality, and for whom the votes were cast.

First. A vote accepted by the commissioners holding the election is
prima facie legal. Before it can be thrown out for illegality it must be
satisfactorily shown by the evidence to have been cast Dy one not le-
gally qualified to vote that is to say, the presumption of legality must
be overcome by a clear preponderance of competent evidence.

By competent evidence we mean such evidence as would be admitted
on the trial of the issue before a judicial tribunal, except where a re-
laxation of the rule is made necessary by the nature of the issue.

No provision is made by the statutes of West Virginia to ascertain
what particular ballot any voter has deposited after it has been once
placed in the ballot-box. Therefore in this case it becomes necessary
to ascertain for which candidate a vote was given by other means than
the ticket itself.

It seems to have been taken for granted by both parties that the
voters themselves could not be compelled to disclose how they voted.
It may be remarked in this connection that one who would knowingly
cast an illegal vote ought not to be regarded as the most reliable wit-
ness. On the other hand, when he has been honestly mistaken, we can
see no reason why such voter ought not to be trusted as a witness.

In order, then, to prevent illegal voting with impunity, it becomes
necessary to determine what kind of testimony shall be received in as-
certaining which candidate got the benefit of the illegal vote. The
committee have followed the rule which appears to them to be the
most reasonable, as well as the best sustained by authority.

In the absence of direct proof, evidence showing to what political
party the voter belonged, whose election he advocated, whose friends
maintained his right to vote, and kindred testimony, has been held ad-
missible. Of course what the voter said at the time of voting is ad-
missible as a part of the res gesta.

But what a voter said after the day of the election, either as to his
qualifications, or how he voted, or whether he voted, the committee
hold to be inadmissible in the absence of other testimony on the point.
If such testimony can be admitted at all, which we do not concede, it
certainly ought not to be received when the statement of the voter is
made after the legality of his vote has been called in question. To
admit this kind of testimony is to place it in the power of one not en-
titled to vote to have his illegal vote counted twice against the party
he desires to defeat, without subjecting himself to cross-examination,
and without even the formality of testifying under oath.

Again, one legally qualified may, by statements after he has voted,
make himself out to be disqualified without incurring any penalty, and
i'u that way have his legal vote given to one party counted as illegal
against another party. One who has not voted at all may in the same
way be proved to have voted. In a close contest, with party feeling
running high perhaps party control involved the admission of this

28 SMITH VS. JACKSON.

kind of testimony would be doubly dangerous. It has nothing to com-
mend it except a class of decisions whose authority has been weakened,
if not destroyed, by later and better considered adjudications. The
committee reject all such testimony as being mere hearsay of the most
dangerous kind when standing alone. When the only evidence of how
a man voted, or whether he was a legal voter, is the unsworn statement
of the voter after the election, we have let the vote stand.

In regard to what constitutes a person of unsound mind we have
adopted the rules substantially as laid down by American courts and
text-book writers and hold that a person having sufficient intelligence
to make a valid will, or to bind himself by ordinary contracts, or to be
criminally responsible for his acts, is a person of sound mind. One
whose will would be held invalid, for no other reason than mental in-
capacity, is a person of unsound mind.

In the record we find the oft-recurring question, " Was the voter in
your opinion a man of unsound mind," put to a non-professional wit-
ness without any attempt to define what was meant by unsoundness of
mind. To the answer to such question, unaccompanied by any explana-
tion of what the witness understood by the term, we attach very little
weight.

The condition of the voter, his acts and speech, how he is regarded
by those who know him, as to his competency to contract, judicial de-
terminations, and the like evidence has been given due weight. The
term idiot is so well understood that the statement of a witness that a
person is an idiot is given more weight, as being the statement of a fact
within the knowledge of the witness, and not a mere opinion.

With these rules in view the determination of the legality of a vote
only requires a fair and intelligent consideration of the evidence. Upon
the question of what constitutes a pauper, there is some disagreement
in the authorities, but we think the following may be taken as a fair defi-
nition : A pauper is one who is continuously supported in whole or in
part out of funds provided by the public authorities for that purpose.
One who has been a public charge, and afterwards becomes self-sup-
porting for a sufficient time before the election to show that his ability
to support himself is. not a mere temporary condition, may legally vote.

One who, under temporary misfortune or sickness, receives public
aid, but is ordinarily self-supporting, is not a pauper.

The law which 'determines the question of residence is so well settled
that it does not need a restatement by the committee ; the difficulty is
in the application of the law to the evidence.

Absence from the place claimed as a residence, for temporary pur-
poses, does not work abandonment, but in this case some of the wit-
nesses and some of the commissioners of election seem to have had the
view that a voting residence might be retained by the simple statement
of intention to retain a certain place as a voting residence, although an
actual residence had been taken up elsewhere, with no fixed intention
of ever again actually living at the place where the right to vote is
claimed. Others seem to think that they can establish a new residence
by intention before actually and in fact moving to the new place.

We do not concur in these views. It takes both act and intention to
establish a residence, and an intention to retain a residence which has
been left must be an intention actually to return to it and reside in it.

Some votes in this record are questioned on account of disputed or
doubtful boundary lines. The committee have not thought it their
duty to go into an investigation of disputed boundaries, but have
counted all votes as legal when the voters were otherwise qualified and

SMITH VS. JACKSON.

voted in good faith in the district where they believed that they had
their residence, and where they hail been in the habit of voting.

Applying the foregoing rules we now propose to consider the separate
votes without attempting to discuss each vote at any length.

Cotestee in his brief substantially concedes that the following votes
cast for him were illegal and ought to be deducted from his vote,

Ephriara Hensley, non-resident.
W. J. Giluiore, non-resident.
C. D. Stahiaker, minor.
Charles Reynolds, uon-resident.
John C. Deaton, pauper.
James Powell, unsound mind.
Henry Keyuolds, nou-resident.
Grant Griffith, minor.
Napoleon Adkins, Wayne County.
W S. Napier, Wayue County.

W. W. Bromfield, Wayne County.
Aldersou Watts, jr., Wayne County.
William Noe, Wayne County.
C. O. Bellomy, Wayne County.
Elias Browning, Wayne County.
W. Y. Woodring, non-resident.
Noble Hunter, convict.
John Cochran, pauper.
Frederick Schwall, pauper.
Michael Hobart, non-resident.

making twenty conceded illegal votes, one of which, Frederick Schwall,
we deduct, as the concession grows out of testimony which the com-
mittee do not consider competent.

Two or three of these votes contestee insists should not be charged
against him, because not named in contestant's notice of contest.

One of them, Michael Hobart, was challenged by coutestee in his re-
ply. The vote was illegal and cast for contestee. The committee
think that a vote challenged in the notice by either party is a proper
subject of investigation.

Two others were not named in either notice. The pleadings in this case
are more specific than the practice before the committee requires. As a
general rule parties ought to be bound by their pleadings, but where
neither party has been taken by surprise, and both have entered into
the investigation, the rule should be relaxed in the interest ofjustice.

The evidence in regard to these voters was taken a mouth before con-
testee commenced examining his witnesses, the witnesses impeaching
the votes were cross-examined on this branch of their testimony, and
the contestee should be held to have waived his objections.

In a final summary of his claims contestant has conceded that he has
failed to establish his charges with reference to a number of named
voters, and that the evidence in regard to others places them in the
doubtful list. As to all such we have not felt it our duty to examine
the evidence, as we take the admission to amount to a waiver. Al-
though as to some of them it may be said it takes all the benefit of
presumptions to hold them valid.

Of these claimed to be fully established as having been illegally cast
for contestee, the committee hold that the following should be held to
have been illegally voted for contestee :

W. R. Surratt, non-resident.
Wm. Gibson, minor.
John Starcher, minor.
Jacob L. Starcher, non-resident.
John Carney, unsound mind.
O. J. Simmons, non-resident.
Oliver Burns, non-resident.
Reese Stratton, unsound mind.
W. A. Palmer, non-resident.
E. J. Long, non-resident.
Dr. W. S. Reese, non-resident.
J. D. Summers, non-resident.
N. B. Armstrong, non-resident.
John Ball, unsound mind.

Abram Jones, pauper.
Thomas Stinson, non-resident.
James Dillon, non-resident.
Walter Dillen, non-resident.
Ali Artrip, minor.
John Cox, non-resident.
A. Kaminsky, non-resident.
Lazarus^Wainer, non-resident.
George J?ean, minor.
Henry Tearing, non-resident.
Joseph Starling, non-resident.
E. D. Lewis, minor.
James Bolyard, minor.

Twenty-seven in all or forty-seven illegal ballots voted for contestee.

30 SMITH VS. JACKSON.

W. H. Surratt (Record, pp. 58-62, 269-280) : This voter seems to be
one of those whose residence at the place of voting was one of mere in-
tention. His home and business were elsewhere at the time of voting
and at the time of taking testimony. His intention seemed to be to re-
tain a voting residence at his former home, without any fixed intention
of ever resuming it as an actual residence.

Wm. Gibson, John Starcher, minors (Record, pp. 63-66-7, 70-1, 296,
302, 307): The most trustworthy testimony in this case, fixed by writ
ten documents, shows that these voters were minors.

Jacob L. Starcher (Record, pp. 87, 88, 89, 350) moved from West Vir-
ginia to the West in 1886 and back in 1888; claimed that he had not
lost his residence; but in January, 18S9, he made oath that his residence
was in Minnesota on April 1, 1838, and by so doing secured a release of
taxes. He can not be heard to say that he had retained a residence in
West Virginia against the fact of two years' actual residence with his
family in another State and his declaration on oath designed to affect
his property rights.

John Carney (Record, pp. 83, 88, 89, 91, 327, 332, 336): The preponder-
ance of evidence shows this man to be entirely irresponsible for his
acts. On application of his brother a committee or conservator was
appointed for him. It is said the clerk who made the appointment
had no legal authority for his act. Be that as it may, it shows the esti-
mate of his family and those who knew him best.

O. J. Simmons, non-resident ''Record, pp. 83, 87, 333): Left West Vir-
ginia and moved to Ohio a year or more before the election and voted
there. Claimed that his vote in Ohio was illegal, as he intended to re-
tain a residence in West Virginia. His act was inconsistent with such
intention.

Oliver Burnes : Was a resident of Ohio at the time of the election,
having permanently moved from West Virginia. This does not seem
to be controverted, but it is claimed that inasmuch as his name does
not appear in the notice of contest the vote can not be considered. We
have previously referred in this report to this class of votes, and this
one lalls fully within the rule announced.

Reese Strattou: This voter was not far removed from idiocy.

W. A. Palmer, non-resident (Record, pp. 97-98, 365-366) : Became of
age in May, 1888; lived with his father in Ohio, and moved with the
family to West Virginia in March, 1888. His father rented a farm in
West Virginia the previous fall and seeded it, but did not move to it
until the following spring. The son helped the father do the seeding,
then returned to Ohio, and went to school during the winter. There is
no possible question about the illegality of this vote.

E. J. Long, non-resident : Clearly not a resident of West Virginia long
enough to obtain a voting residence. Objected to on the same ground
as the vote of Oliver Burns, already discussed.

Dr. W. S. Reese, non-resident: Moved to Ohio before the election
with his family. His claimed intention to return to West Virginia was
conditional. He not only did not carry out his claimed intention, which
is a circumstance against him, but a few days after election abandoned
all intention to return, and acknowledged himself a permanent resident
of Ohio.

Dr. J. D. Summers (Record, pp. 146, 149, 155, 475, 476) : Not a resi-
dent of the county sixty days.

The voter made arrangements to rent a house in the county on the
5th day of September, 1888, but did not move to it till the 17th.

SMITH VS. JACKSON. 31

Claimed to be a resident because of his intention to become one. It
requires the conjunction of act and intention to establish a residence.

N. B. Armstrong (Record, pp. 149,151,155,473): Voted in Roane
County, but had not lived in the county sixty days. Had a farm in
Eoane County. Rented it, and moved to Wirt County in 188G. Claimed
that he did not intend to abandon his residence in Roane County, but
voted in Wirt County in the fall of 1886, which act concludes him to
have intended to establish his residence there. He says himself that
he can not say that he moved his family back sixty days before the
election.

John Ball : This man was not far removed from idiocy.

John iStinsou: Voted in Wayne County, and lived in Logan County.
Moved from Wayne to Logan in th spring of 1888. He was examined
by the commissioners and his vote admitted on a ruling that he had not
permanently abandoned his former residence. The uncoutradicted tes-
timony is against his right and the voter was not called, although it
appears that he could have been. This is one of the cases in which the
ruling was based upon a misunderstanding of the law, and of what
kind of intention it takes to retain a residence.

James Dillen, Walter Dillen, non-residents: Father and son; moved
from Kentucky less than a year before the election.

Ali Artrip, minor, (Record, pp. 179, 202, 204, 481, 486-487) : We think
there can be no question but that this voter was a minor. All the ad-
missible testimony is to that effect.

.John Cox, non-resident: Moved to Kentucky and engaged in busi-
ness as a resident, paying taxes, working roads, etc. We think his re-
turn to West Virginia was an afterthought, arising from the gift of
some land to his wife by her father. There is more doubt about this
voter than any other considered, but the committee thinks it the safer
rule to exclude his vote.

A. Kaminski, Lazarus Wainer, non-residents : They were Russian
peddlers, naturalized in Baltimore, September, 1888, and proved that
they had resided there for a year next preceding the election, as shown
by the certificate of naturalization. They traveled around in West
Virginia. Can not be heard to contradict their naturalization papers.

George Dean, minor: This voter swears he was of age when he
voted but the other evidence in the case shows that he did not tell
the truth. He seems to have thought that he was doing.a smart thing
in taking contestant by surprise, and contestee insists that contestant
shall not be permitted to contradict his own witness. We do not so
understand the law when applied to circumstances of this kind.

Henry Tearing, non-resident: This vote was clearly illegal, but it
does not certainly appear for whom it was cast.

Joseph Starling, non-resident: Clearly illegal. Dispute as to how
he voted. Considering all the legal evidence we do not think there is
much room for doubt.

E. D. Lewis, mino*: The most satisfactory evidence is that he was
a minor.

James Bolyard, minor: Admitted that the vote was illegal, but ob-
jected to on the ground of want of notice which we have already con-
sidered.

Deducting Yearing's vote, and it leaves 26 votes to be added to the
20 admitted ; in all, 46 illegal votes cast for contestee, which, with the
12 plurality on the face of the returns, makes 58 plurality for contest-
ant, which entitles him to a seat unless a larger number of illegal votes
were cast for him.

32 SMITH VS. JACKSON.

Contestant concedes that the following votes given to him were
illegal :

George Christian, non-resident.
Isaac Dotson, pauper.
P. Wayne, minor.

George H. Rice, non-resident.
Wesley McDonald, non-resident.
Henry Cunningham, non-resident.

The committee think that the following are clearly proven:

Randolph Ferrill, minor.

J. G. Mooney, minor.

Benjamin Singer, non-resident.

Robert Treet, pauper.

B. F. Blusing, non-resident.

T. J. Hurlburt, non-resident.

John Hall, convict.
John Mitchell, non-resident.
John Woernlinger, foreigner.
Peter Trent, non-resident.
Spencer Dean, non-resident.
Daniel Smith, non-resident.

Eighteen altogether.

There are others who clearly were not entitled to vote ; but as to
some of them, as was the case with votes charged to have been cast
for contestee and not considered by the committee, it does not ap-
pear that they voted ; as to others it neither appeals for whom they
voted nor with what party they affiliated, unless it be by what they
stated after the election and after the legality of their votes had been
called in question.

Fourteen other votes, laborers on a railroad, are attacked on the
ground that they had not lived in West Virginia for a year, were not
residents of the district where they voted, and were employes of a cor-
poration.

As to some of them it clearly appears that they had lived in the
State a sufficient time to entitle them to vote. As to none of them is
it shown by competent testimony that they had not been so resident,
and the presumption is in their favor.

They belonged to a construction gang which had its headquarters
where they voted ; to this point they constantly returned ; received their
mail there ; had their washing done there, and had a right to fix their
residence there. Their employment .by a corporation did not give them
a residence, but it did not prevent them from acquiring one. Some
had voted there a year before. We think the presumption of legality
is in no way overcome by the evidence.

William Wix, a minor, attacked by contestant and claimed by con-
testee to have voted for contestant is a somewhat peculiar case. His
mother and suster, with whom he lived and who testify to his minority,
are Democrats of a pronounced type. On the morning of the election
his sister says she asked him to vote for the Democrats, but that he de-
clared his intention to vote Republican, and on the same evening told
her he had done so. It is a little strange that knowing he was a minor
his mother ,#nd sister should be sending him off to the polls and urging
him to vote for their candidates, considering the testimony which they
subsequently gave. At the polls he was challenged by a Republican,
waited until his challenger was out of the way, and while yet at the
election declared he had voted the Democratic ticket.

We think it too uncertain bow he voted to charge his vote to either
party.

M. E. Polsne is another voter challenged by contestant. Placed on
the stand by contestee to prove himself a legal voter, on woss-exam-
ination he stated such facts as showed he was not, and then volun-
teered the statement, not in response to any question by either party,
that while voting the Democratic ticket he nevertheless voted for con-
testant, and upon that testimony it is now insisted that this vote ought
to be charged against contestant.

SMITH VS. JACKSON. 33

This testimony was peculiar to say the least, and is subject to grave
suspicion, but as the witness was not impeached by subsequent testi-
mony we allow the charge and count the vote as illegal.

This gives 19 illrgal votes for contestant, and leaves the actual plu-
rality for contestant 39, which, in the judgment of the committee, is as
near a correct statement of the true vote as can be given from all the
evidence before us, and we so report.

The commit tee, therefore, report the following resolutions, and recom-
mend their passage :

Resolved, That James M. Jackson was not elected as a Representa-
tive to the Fifty-first Congress from the Fourth Congressional district
of West Virginia, and is not entitled to the seat.

Resolved, That Charles B. Smith was duly elected as a Representative
from the Fourth Congressional district of West Virginia to the Fifty-
first Congress, and is entitled to his seat as such.

H. Mis. 1*7 3

VIEWS OF THE MINORITY,

The various rulings of the governor of West Virginia, upon which
the certificate was issued to Jackson, were in accordance with law, but
there being other evidence now in the record showing that the returns
counted by the committee correspond in each case to the vote actually
cast, the minority so count. Believing, however, that the number of
illegal votes proved by the record to have been cast for contestant in
excess of the number proved to have been cast for coutestee is sufficient
to overcome the plurality thus indicated for contestant, the right of
coutestee to his seat is sustained.

VIEWS OF THE MINORITY.

Mr. CBISP, from the Committee on Elections, submits the following as
the views of the minority:

We have heard read that portion of the report of the majority relat-
ing to the law of the case, and in the main we agree with the view
therein expressed ; at least in the application of the law to this case there
seems to be no very important difference between us. Under the law
of West Virginia the returns of the vote cast at the various precincts
or voting places in each county must on the fifth day (Sundays ex-
cepted) after every election be by the officers having charge of the bal-
lots, poll books, and certificates placed before the commissioners of the
county court, who are required to convene in special session on that
day for the examination of such certificates or returns. Upon the de-
mand of any candidate voted for, such commissioners are required to
open the sealed packages of ballots and recount the same. Such com-
missioners shall carefully and impartially ascertain the result of the
election in their county and make out and sign as many certificates
thereof as may be necessary, dependent upon the number of officials
voted for.

In the case of an election for Representative in Congress the commission-
ers transmit their certificate of the result to the governor, who ascertains
who is elected and makes proclamation thereof. The certificate of the
commissioners of Calhoun County under date of November 12, 1888, duly
transmitted to the governor of West Virginia, show that C. B. Smith,
contestant, received 630 votes. The county court of said county, on
January 7, 1889, entered an order changing the vote of Smith to 632,
an increase of 2 votes over the original return or certificate. The com-
missioners for Ritchie County sent two certificates to the governor, one
dated November 13, 1888, showing that Smith received 1,1)72 votes, and
the other dated November 14, 1888, showing that Smith received 1,973
votes, the later certificate showing one more vote for Smith than the
earlier. The governor held in both these cases that he was bound to
act upon the certificates earliest in date, for the reason that when the
commissioners, acting as a board of canvassers under the law, made
and transmitted to him their certificate of the result and adjourned their
powers ceased, and both the order of the county court, correcting the
first return from Calhoun County, and the second certificate from
Ritchie County were illegal, unauthorized, and void.

The undersigned are inclined to think the governor was right in his
view of the law; but inasmuch as we are satisfied, from other evidence
contained in the record, that the later returns show the true state of
the vote in these counties, and inasmuch as we are not by the law re-
stricted in our investigation as was the governor, we accept such later

248080

38 SMITH VS. JACKSON.

returns and give to contestant all he claims, to wit; 632 votes in Cal-
lioim County and 1,973 votes in Ritchie County.

Perhaps it should be here stated that counsel for contestant appeared
before the governor and insisted that the law required the governor to
determine the result of the election from the face of the returns or certifi-
cates, insisting he had no right to seek or look to any other source of in-
formation. Alter argument the governor decided this view correct, and
held he could not go behind the returns.

The commissioners of Pleasant County certified to the governor that
" J. M. Jackson received eight hundred and twe votes." On this ques-
tion the governor, in his order-book declaring the result of the election,
says :

The words and letters are too plain for any mistake. For the reasons heretofore
given tlt<>re in no authority to go behind the returns. The vote certified must be
counted if enough appears to ascertain the meaning. In an action upon a note it was
held : "There was no error in admitting the note sued on in evidence, because the
amount thereof is written four hand and two and 50-100 dollars." (Glenn va.
Porter, 72 lud., p. 525.)

o it has been held that the abbreviation in a declaration, " Damages one thoun
dollars" is not error. (1 W. L. J., Mich., 395.)

If enough appear to make the return intelligible it should be made so.

This can not be done without, striking out one letter and inserting another, or by
supplying the seemingly omitted letters. Acting upon the face of the paper the
latter appears more in consonance with adjudged cases. The least number would
give Jackson eight hundred and twelve votes. It will be so entered.

After carefully considering the evidence contained in therecord evi-
dence wholly outside of said certificate we thinkrhe true vote received
by Jackson in Pleasants County was 802; we have therefore so counted
it, thus conceding to contestant just what he claims as to the true vote in
this county. Coutestee averred that certain polls should be rejected
because he says it does not appear the managers of election were duly
sworn. In such cases the law of West Virginia imperatively says the
vote shall not be counted. vVe are not satisfied that the evidence
establishes this charge, and therefore we reject no polls on this ground,
thereby again agreeing with the contention of contestant.

Contestee claimed that the vote of Walton precinct in Roane County
should be excluded because there was "such misconduct and neglect
and failure to discharge their duty on the part of the commissioners of
election who held the election on the 6th day of November, 1888, at that
precinct as amounted to fraud." It appears from the evidence that the
b;illot-box was an oblong, firm, wooden box, with a sliding lid, with a
hole through the top to receive the ballots ; there was a lock on the box,
but no key; the lid would slide easily; a nail was used to keep the lid
from sliding; the nail could be pushed in and pulled out with your
lingers. This box in this unsecured condition was for a time in the ex-
clusive possession of Mr. Garvin, a Republican commissioner, and Chris.
Summers, another Republican. They had opportunity to have tampered
with the box, and to this extent its integrity is impeached.

Mr. Garvin and Chris. Summers were not sworn by the contestant to
show they did not tamper with or stuff the box. Contestant gave con-
testee notice that he would on the 18th day of July, 1889, examine these
witnesses, but he did not do so. There may be some question of thepro-
priety of accepting this return, but inasmuch as the only circumstance
to show actual fraud was that the Republican majority was larger than
was expected we do not reject the vote ; thus again agreeing with the
contention of contestant. The point was made in two cases that the
voting place in precincts had been unlawfully changed or moved, but
it appearing the vote was reasonably full, and that all parties on elec-

SMITH VS. JACKSON. 39

tion day accepted the new place as legal, we see no reason for rejecting
votes on this ground, again agreeing with the contention of contestant.
This, we believe, disposes of all exceptions which might be by some
thought technical, and we find ourselves at that point in the case where
we begin to examine the evidence bearing upon the votes charged to be
illegally cast for contestant, aud the evidence bearing upon votes charged
to be illegally cast for contestee, in full accord with the contestant as
to the number of votes, including those charged to be illegal which
were cast for the parties to this contest, respectively :

For Charles B. Smith 19,837

For James M. Jackson 19, 8<i5

Contestant avers that 102 votes should be deducted from the 19,825
votes cast for coutestee because he claims that number of said votes
were illegal, naming the voters.

Contestee avers that 127 votes should be deducted from the 19,837
votes cast for contestant because he claims that number of said votes
were illegal, naming the voters.

The legality or illegality of each of these votes depends upon the law
of West Virginia as to the qualification of voters and the facts proven
as to each voter.

First, as to the law :

The male citizens of the State shall be entitled to vote at all elections held within
the counties iu which they respective!}' reside, but no person who is a minor, or of
unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery
in an election, or who has not been a resident of the State for one year, and of the
conuty in which he offers to vote for sixty days next preceding aoch offer, shall be
permitted to vote while such disability continues; bat no person in the military,
naval, or marine service of the United States shall be deemed a resident of this State
by reason- of being stationed therein. (Constitution West Virginia, Article IV, sec.
1* See published acts of 1872-73, page 8.)

The male citizens of the State shall be entitled to vote at all elections held within
the counties in which they respectively reside ; but no person who is a minor, or of
unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery
in an election, or who has not been a resident of the State for one year, and of the
county in which he offers to vote for sixty days next preceding such election, and
who is not, at the time of the election, an actual and bona fide resident of the district
in which he offers to vote, shall be permitted to vote in snob district while such dis-
ability continues. And no person in the military, marine, .or naval service of the
United States shall be deemed a resident of this State by reason of his being stationed
therein ; nor shall any person in the employ of an incorporated company, or of this
State, be deemed a resident of any county, or of any district therein, by reason of
being employed in said county or district. (Acts 1882, ch. 155, sec. 9. See published
acts of 1882, p. 493.)

Second. As to the facts. The 229 votes assailed by the parties to this
contest are attacked upon the following grounds: It is averred that
some are minors, that some are non-residents of the State, that some are
non residents of the counties where they voted, that some voted with-
out thn election precinct of their residence, that some are of unsound
mind, that some are paupers, and that some have been convicted of
felony. To establish the charges made against the legality of these
votes some 600 witnesses were examined, and their evidence appears
in the record.

The undersigned believe the only correct and satisfactory way to de-
termine who was elected to this Congress from the Fourth Congres-
sional district of West Virginia by the legal voters thereof, was for the
Committee on Elections of the House to consider each contested vote,
examine all the evidence in the record bearing thereon, and then by a
vote of the committee determine the legality or illegality thereof. In
this way, and in this way only, the undersigned think could this case be

40 SMITH VS. JACKSON.

satisfactorily determined. Certainly any court charged with the duty
of deciding the question of fact presented in the record would have
thus proceeded. So thinking, the undersigned proposed this method
of proceeding. The majority of the committee not agreeing with this
view declined so to proceed, and up to the filing of this report the un-
dersigned are not informed as to what votes the majority determine to
be legal or what votes they determine to be illegal.

The undersigned having, before the determination of this case by the
committee, each separately and carefully considered all the evidence
bearing upon every vote contested, have again and together reviewed
and considered all the evidence bearing upon each vote challenged by
either party and here present their conclusion.

We find that the following-named voters each deposited a ballot for
Jackson, the coutestee, and that said ballot was illegal and ought to be
deducted from the vote heretofore stated as the vote for Jackson.

1. W. R. Surratt. 12. W. W. Bromfield. 23. Jas. Powell.

2. C. 1). Stalnaker. 13. Alderson Watts. 24. George Dean.

3. J. L. Starcher. 14. Napoleon Adkius. 25. W. S. Wooding.

4. Charles Reynolds. 15. C. O. Bellemy. 26. Noble Hunter.

5. J. G. Armstrong. 10. Wm. Noe. 27. James Bolyard.

6. J. C. Deaton. 17. Elias Browning. 28. John Cochran.

7. John Carney. 18. Abram Jones. ' 29. Henry Reynolds.

8. E. J. Long. 19. Jas. Dillon. 30. H. B. Armstrong,
i). J. D. Summers. 20. Walter Dillon. 31. Lewis Mattock.

10. John Ball. 21. A. Kaminsky.

11. W S. Napier. 22. Lazrns Waines.

We find that the following-named voters each deposited a ballot for
contestant Smith, and that said ballot was illegal and ought to be de-
ducted from the vote heretofore stated as the vote for Smith :

1. Peter Trent. 23. Thos. Burt. 45. John MitcheH. *

2. Spencer Dean. 24. Lewis Mallory. 46. John Hall.

3. David Smith. 25. John Harris. 47. Wesley McDonald.

4. P. Wayne. 26. E. J. Anderson. 48. H. S. Greatbouse.

5. William Wix. 27. O. Yancey. 49. P. S. Greathouse.

6. John Brannen, .jr. 28. Hez. White. 50. Win. Bradshaw.

7. John Sheets. 29. Charles Quails. 51. John G. Dickson.

8. C. M. Messerly. 30. Marcellus Thomas. 52. Jesse Morris.

9. Henry Dve. 31. Ernest Graves. 53. H. Sheariffe.

10. I. C. Leonard. 32. Martin Wright. 54. Austin Talferee.

11. John Davis. 33. John Diggs. 55. W H. Mamel.

12. J. T. Mooney. 34. Robt. Brown. 56. Edward Steed.

13. Wm. McCoy. 35. James Fortune 57. Henry Cunningham.

14. Robt. Treet. 36. Flem Washington. 58. George Anderson. *

15. B. F. Blessing. 37. Major Jones. 59. John Woemberger.

16. Isaac Cullens. 38. W. F. Bird. 60. Israel Taylor.

17. Wm. Lee. 39. Geo. F. Jones. 61. Robert Alexander.

18. T. G. Hulbert. 40. James Parr. 62. Oscar Cunningham.

19. Geo. H. Rice. 41. Samuel Gray. 63. Wm. White.

20. E. Fletcher. 42. F. L. Johnson. 64. R. B. Mussetter.

21. Elijah Kiggins. 43. Simon Poole. 65. John Parkins.

22. J. Lute or Luh. 44. Frank Bratten. 66. N. E. Polsen.

The evidence tends to show the following-named persons voted
for Smith, contestant, and that their votes were illegal; but the evi-
dence is not so clear as in the other cases, therefore they are separated
from them :

1. Geo. S. Ferrill. 8. Henry S. Poney. 15. John W. Burk.

2. Randolph Ferrill. 9. Mate Crago. ' 16. Perry Shriver.

3. Thos. Ferrill. 10. Wm. Crago. 17. Richard Hodgin.

4. A. H. Blackshire. 11. George Goodwin. 18. Jas. M. Cochran.

5. Charles Anderson. 12. Rufus Corbin. 19. Charles Walker.

6. Chris. Anderson. 13. A.C.Donald. 20. Isaac Davis.

7. Walter Henry. 14. H. P. Donald. 21. P. Robinson.

SMITH VS. JACKSON. 41

SUMMARY.

Total vote for Jackson , 19,825

Deduct illegal votes cast for him 31

Correct vote of Jackson 19,794

Total vote for Smith 19,837

Deduct votes clearly proved to be illegal and cast for him 66

Deduct those the evidence tends to show illegal 21

19,750

On this basis the vote would be

Jackson 19,794

Smith 19,750

Majority for Jackson 44

If we deduct only those votes which are clearly and distinctly proved
illegal and cast lor Smith the vote would be

Jackson, total vote 19,825

Illegal votes... 31

Total legal vote of Jackson 19,794

Smith, total vote 19,837

Illegal votes 66

Total legal vote of Smith 19,771

Clear majority for Jackson 23

The undersigned are therefore of the opinion that the contestee,
Jackson, was duly elected, and we submit the following resolutions :

Resolved, That C. B. Smith was not elected a Representative in Con-
gress from the Fourth district of West Virginia, and is not entitled to
a seat therein.

Resolved, That James M. Jackson was duly elected a Representative
in Congress from the Fourth district of West Virginia, and is entitled
to retain his seat therein.

CHARLES F. CRISP.
JO8. H. OUTHWAITE.
CHAS. T. O'FERRALL.
LEVI MAISH.
L. W. MOORE.
R. P. 0. WILSON.

GEORGE W. ATKINSON vs. JOHN 0. PENDLETON,

FIEST WEST VIRGINIA.

Contestant alleged fraud pending a recount in Wetzel County, and
both parties charged illegal voting. The committee find the charges
as to Wetzel County sustained by the evidence. Disregarding the
tainted recount in this county, and counting the votes as originally
returned, the contestant has a majority on the face of the returns, and
the burden o* proof shifts to the contestee; he not having shown that
a larger number of illegal votes were cast for contestant than for him-
self, but the contrary appearing from the evidence, the contestant is
entitled to the seat.

The minority differ as to matters of fact only, the law as laid down
by the committee in the previous case of Smith vs. Jackson being ac-
cepted by both sides. (See minority report, p. 61.)

The resolutions presented by the committee were adopted by the
House February 27, 1890, by a vote of 162 to (the Speaker announc-
ing the names of 72 members present and not voting), and Mr. Atkin-
son was sworn in. The debate will be found on pages 1731 to 1781 of
the Eecord.

(1) Fraud. To be eliminated from the result.

Returns which are tainted with fraud can not be made the founda-
tion of the title to a seat in the House. The result should be purged
of the fraud if practicable, and the poll only thrown out when no other
alternative remains but to give effect to the fraud or to reject the poll.

(2) Recount.

The returns of election officers are prima facie correct, and a recount
showing a different result can not be regarded unless it affirmatively
appears that the ballots recounted are the same as those originally
counted, and in the same condition.

(3) Burden of proof.

Contestant being shown to have been elected on the face of the re-
turns, the burden shifts, and it devolves upon contestee to establish
his right to the seat which he occupies by affirmative evidence.

44 ATKINSON VS. PENDLETON.

(4) Residence.

The presumption should be in favor of actual residence, as against a
claimed intent to return to an abandoned residence, when the intent
only appears by the act of voting.

FEBRUARY 19, 1890. Mr. EOWELL, from the Committee on Elections,
submitted the following report:

The Committee on Elections, having had under consideration the
contested-election case of George W. Atkinson vs. Johu O. Pendleton,
from the First Congressional district of West Virginia, have duly con-
sidered the same and submit the following report:

By the notice of contest and answer thereto two issues are raised in
the case.

One is the allegation of fraud pending a recount of the ballots in
Wetzel County, and the other is the charge made by both parties, at-
tacking a large number of votes for illegality.

By the statutes of West Virginia, after the returns have been made
to the clerk of the county commissioners' court the commissioners, on
demand made by any candidate, are required to recount the ballots.

The nature of the claim of contestant and its effect upon the result
are correctly and succinctly stated in a brief filed in the case by contest-
ant, from which we quote as follows :

The returns which were sent to the governor from the First Congressional district,
and which included the falsified returns from Wetzel County, were, as stated by the
contestee in his answer to the notice of contest, as follows :

For contestee 19,261

For contestant Id, U42

Making the contestee's plurality 19

The fraud complained of is alleged to have been committed with ref-
erence to the two precincts of Martin's School-House and Archer's Fork.

The claim of the contestant is that after the ballots of these two pre-
cincts had been counted by the judges and clerks of election, and had
been delivered with the poll-books to the clerk of the count.v court, 14
ballots of those from Martin's School-House and 10 ballots of those
from Archer's Fork were changed, or " scratched," by having the con-
testant's name erased, so that upon the recount by the county court
the votes for the contestant at Martin's School-House appeared to be
111 instead of 125 as returned by the election officers, and those at
Archer's Fork 148 instead of 158.

Two of these "scratched" ballots not only had the contestant's name
erased, but the contestee's inserted, so that two votes were thus im-
properly added to the aggregate for the contestee.

If these twenty-four votes should be restored to the contestant and
these two votes deducted from the votes for the contestee, and the other

46 ATKINSON VS. PENDLETON.

returns sent to the governor allowed to remain unchanged the result
would be

For the contestant 19,242

Plus 24

19,266

For the contestee 19,261

Less 2

19,259

Showing a plurality for contestant of 7

The rule has been announced over and over again that returns which
are tainted with fraud can not be made the foundation of the title to a
seat in the House. In the case of Washburu vs. Voorhees (3 Congres-
sional Contested Election Cases, 54), a number of authorities are cited in
support of the rule which is there laid down as follows :

When the result in any precinct has been shown to be so tainted with fraud that
the truth can not be deduced therefrom, then it should never be permitted to form
a part of the canvass The precedents, a.s well as the evident requirements of truth,
not ouly sanction but call for the rejection of the entire poll when stamped with the
characteristics here shown.

While all agree that where fraud is shown, the result of the fraud
should be iu some way avoided, there has been much discussion as to
the manner in which this result is to be reached, and it may be re-
garded as settled that the poll will be " purged " of the fraud if that be
practicable, and only rejected when no other alternative remains but
to give effect to the fraud or to reject the poll.

In the present case it is unnecessary to enter into the discussion of this
question, for the result will be the same whether the polls in the two
disputed precincts be purged by a resort to the returns made by the
election officers, or be rejected altogether. This will be seen from the
following calculation.

At Martin's School-House the total number of votes for the contestant, as returned
by the election officers, was 125. The county court, by deducting the scratched
tickets, fourteen in number, reduced these to 111, which was the number included in
the returns sent to the governor. The number of votes for the contestee was allowed
to remain, and was certified to the governor as returned by the election officers at
134. (437.) At Archers' Fork the numbers returned by the election officers were, for
the contestant 158, and for the contestee 149. On the recount, 2 votes were added to
the contestee's and 10 deducted from the contestant's, so that the returns sent to the
governor were, for the contestant 148, and for the contestee 151. ('27.) If, now, these
two precincts be entirely eliminated from the returns sent to the governor from the
entire congressional district, the result will be as follows:

For the contestant :

Returns sent to the Governor (37) 19,242

Deduct Martin's School-House Ill

Deduct Archer's Fork 148

259

18,983
For the contestee :

Returns sent to the Governor (37) 19,261

Deduct Martin's school house 134

Deduct Archer's Fork 151

285

18, 976

Showing a plurality for the contestant of 7

If the poll be purged by restoring to the contestant the 24 votes of which he was
fraudulently sought to be deprived, and deducting from the contestee the 2 votes

ATKINSON VS. PENDLETON. 47

which he gained by reason of the fraud, the result, as already shown, will be the

same, namely :

For the contestant:

Keturns sent to tlie Governor (37) 19,242

Add % 24

19,266

For the contestee :

Eeturns sent to the Governor (37) 19,261

Deduct a 19,259

Purality for contestant 7

The claim of the contestant is, that the ballots which were voted at these two, pre-
cincts were not scratched by the voters who deposited them, and were properly
counted in their true and unaltered condition by the election officers, but that after
leaving the custody of these officers they were tampered with and altered. It does
not devolve upon the contestant to show how or by what persons this crime was com-
mitted, nor can it be for a moment supposed that direct proof would be produced of
the very fact of the alteration, testified to by persons who witnessed the actual per-
petration of the fraud. Publicity would be fatal, and secrecy was essential to the
success of the scheme, and unless one of the participants, as seems to have so nearly
happened in this case, should himself make the disclosure resort must be had, as in
other cases of fraud, to circumstantial evidence. The contestant has proved this
branch of his case by showing, first, that the ballots were without blemish when they
left the hands of the election officers, and, second, that the manner in which the bal-
lots were afterwards kept, and the persons who had access to them afforded the op-
portunity for the crime and made its perpetration probable.

In order to authorize a recount of ballots in an election contest it
must affirmatively appear that they have been kept as required by law,
and that there has been no opportunity to tamper with them. (Paine
on Elections, sec. 787.)

Before courts or legislative bodies can give weight to the result of
a recount there must be absolute proof that the ballot-boxes containing
such ballots have been safely kept and that the ballots are the identi-
cal ballots cast at the election (Paine on Elections, sec. 776, and
authorities cited). An impartial public count of the ballots by sworn
officers made at the close of the polls is better evidence of what the
ballot-boxes theu contained than a subsequent count made after a long
exposure of the boxes to the tampering of dishonest partisans (Paine,
sec. 787).

Taken together, the adjudications upon this question, judicial and
legislative, establish conclusively the doctrine that the returns of elec-
tion officers are to be held prima facie correct; that a recount changing
the result will not be regarded unless it affirmatively appears that the
ballots recounted are the same, and in the same condition as they were
when originally counted.

An opportunity to tamper with the ballots by unauthorized persons,
or a failure to keep them as the law directs, will destroy the value of
the ballots as evidence when recounted and a different result reached
than the one returned.

Changing ballots by scratching or by substitution, after return made,
is an old method of committing fraud to change the result of elections
in cases of close contest.

Even when the ballots have been in the sole custody of sworn officers
of the law, it has been found practicable for dishonest men to make
such changes in such a secret way as to defy detection, and on that
account laws have been enacted requiring the destruction of the ballots
as soon as counted, so that they could not thereafter be used to over-
throw the election returns. In large cities especially, is it thought safer
to risk the possibility of error in the original count than to take the
chances of subsequent changes,

48 ATKINSON VS. PENDLETON.

While in West Virginia the law makes provision for a recount, it
does not dispense with the legal requirements of safe-keeping of the
ballots, pending the recount.

We now consider the facts as they appear in the record with refer-
ence to the recount in Wetzel County.

We quote again from the brief of contestant as being a fair state-
ment of the evidence in regard to original count and the recount.

The election officers at Martin's School House were three commissioners, namely :
John R. Woods, Thomas H. Alley, and A. B. Streight ; and two clerks, namely : Will-
iam J. Wykert and W. H. Parks. Of these, Woods, Alley, and Wykert were Demo-
crats, "and Streight and Parks were Republicans. (355, 336, 337, 343.) The statute,
after providing that every voter's name shall be entered upon the poll-books as his
ballot is received, proceeds as follows (Code 18b7, ch. 3, sec. 18) :

"As soon as possible after the polls are closed at each place of voting for which no
canvassers are appointed, the names entered on the poll-books shall be counted by
the commissioners and clerks, and the number thereof be set down in words at length
at the foot of the list, which shall then lie signed by the inspectors and clerks; the
ballot-box shall then be opened, and one of the commissioners taking therefrom one
ballot at a time, in the presence of all the other officers, shall read therefrom the de-
signations of the offices to be filled and the names of the persons voted for for each office,
and band the ballot to anotherof said commissioners, who, if satisfied that it was cor-
rectly read, shall string it on a thread. The contents of the ballots, as they are read,
shall be entered by the clerks, under the supervision of the commissioners, on tally
papers for the purpose, by suitable marks made opposite to or under the name of each
person voted for, so as to show the number of votes received by every person for every
office to be filled. The ballots shall be counted as they are strung upon the thread,
and whenever the number shall be equal to the number of voters entered upon the
poll-books, the excess, if any, remaining in the ballot-box, shall be immediately de-
stroyed, without unfolding or unrolling the same, or allowing any one to examine or
know the contents thereof."

The statute then provides (section 20) for certifying the result, sealing the ballots,
poll-books, and certificates, and sending them, within four days, by the hands of one
of the commissioners, to the clerk of the county court, with a duplicate of the certifi-
cates and one of the poll-books to the clerk of the circuit court. Let us see how
faithfully these particular provisions of the law were complied with.

The evidence of John R. Woods, one of the Democratic commissioners, will be found
on page 336 of the printed record. He says that after the polls were closed and the
count commenced Streight took the ballots from the box and handed them to the
witness, who read off the vote and handed the ballots to Alley, who strung them.
The witness was forty-three years of age and used glasses. The greater part of the
counting was done by daylight, but part of it was done by night, by lauteru-light,
which the witness thought was sufficient to enable him to see plainly to read the
ballots. When asked whether he saw any Republican tickets on which the name of
the contestant had been scratched or erased in any manner, the witness answered:
"I don't remember that I did." He mentions one Democratic ticket from which the
con testee's name had been erased, and this accords with all of the evidence upon the sub-
ject and with the poll-books and tally-sheets, which show that the total number of votes
cast was one more than the aggregate counted for the two candidates for Congress
(437).

The other Democratic commissioner testifies (343) that after counting until 11
o'clock on the night of the election an adjournment was taken until next morning ;
that during the adjournment the commissioners kept the ballot-box and the ballots in
their custody, leaving the tally-sheets with the clerks; that next morning, on re-
suming the count, the ballots counted the evening before were gone over again, so
as to verify the accuracy of their count. On the question of the lights at night he
says :

" We had good lights ; we had two lights all the time, and part of the time three.
We could see plainly what toe were doing; at least I could, and I heard no complaint
from others about the light." Corroborating in other particulars the testimony of
Woods, he adds the significant fact that the ballots were counted twice, so far as
the Congressional vote was concerned, on account of errors made by the clerks iu
tallying. This man had been for thirty years assisting as an officer in the holding
of elections, and to the question whether it was possible that fourteen Republican
ballots, from which the contestant's name had been erased, could have passed through
his hands without his seeing them, he answered : "I don't think it possible, because
I know he was not scratched at Martin's School House."

A. B. Streight, the Republican commissioner testifies, (335) : "I took the tickets
out of the box, opened them out, and gave them to John Woods, one of the other

ATKINSON VS. PENDLETON. 49

judges of said election ; after I gave him the first ticket I took out of the box, I read
all the balance over carefully to myself while John Woods was reading the one
handed to him out loud to the tallyman ; I read every ticket in the box." He saw
not a single Republican ticket with the contestant's name erased. This witness cor-
roborates Woods and Alley with reference to the light and the other particulars of
the count.

The two clerks, Wykert (335) and Parks (337), did not see the ballots, but tallied
them as they were read, and must in this way have been cognizant, as actors in the
res gestce, of any erasures which were not overlooked by the commissioners. Wykert,
the Democrat, when asked whether his attention was called to any ballot from which
the name of either of the candidates for Congress had been erased, says : "I could not
be positive; I think there was one and maybe two, but not more." Parks, the Repub-
lican, says that his attention was called to only one ballot which had been scratched
as to the Congressional candidates, and that was the one from which the contestee's
name had been erased. With reference to the lights and other particulars, the two
clerks confirm what the commissioners stated.

No other witness is examined on either side with reference to the circumstances of
this count, and indeed it is to be inferred, from the evidence which has been given,
that no other persons were present.' There is, therefore, the concurrent and uncon-
tradicted testimony of all five witnesses to the transaction, all of whom had some,
and three of whom had the best opportunities to become acquainted with the facts
and three of whom were testifying against their party interests, establishing posi-
tively the fact that, when the election officers counted them these ballots were not
scratched, and it is shown that the ballots were safely delivered to Snodgrass, the
deputy clerk of the county court. (336.)

The election officers at Archer's Fork were three commissioners, namely : Samuel
Fisher, J. D. Brookover, and Samson Starkey. and two clerks, namely, S. I. Earl
and G. W. Belch. Of these. Fisher, Brookover, Earl, and Belch were Democrats, and
Starkey the only Republican.

Samuel Fishr, one of the Democratic commissioners, does not remember (370) any
ticket from which the name of either candidate had been scratched, though bis recol-
lection of the circumstances does not seem very clear. When asked whether he saw
any ballots which had been scratched, he answers: "I did, but I don't know that
'there was any on Congressmen." However, he was the commissioner who strung the
ballots, so that he was not required to read them all. He says, though, that he be-
lieves the returns made by the election officers at his precinct to have been con ect.

J. D. Brookover, the other Democratic commissioner, testifies at page 367. Through
his deposition a glimpse may be caught of the pressure under which these election
officers had been placed after it began to seem as though the result of the election
would turn on the question whether their evidence would overthrow that of the fal-
sified ballots. When the witness made an affidavit stating the truth, as he under-
stood the facts, one of his influential party friends addressed to him the remark:
" Damn such a man as you are, for going back on his party as you have." When,
with such a pressure upon them, these election officers come forward and give evi-
dence in favor of the contestant, no doubt can remain of the truthfulness of their
statements.

Brookover testifies that about half of the time during the count he took the ballots
from the box, unfolded and inspected them, and handed them to Starkey, who called
the names off to the clerks, and then passed them to Fisher, who strung them. Part
of the time Starkey took the ballots from the box, inspected them, and handed them
to the witness, who read th names to the clerks and handed them to Fisher. Either
Brookover or Starkey read off to the clerks all of the ballots except five or six, which
were read by Fisher. While they worked at night the light was at all times sufficient
for them to see the names on the tickets distinctly. There was one Republican ballot
with the contestant's name erased and the contestee's wr : tten upon it. He believes
that the returns made from the precinct were correct. When asked whether it was
possible that, there could have been ten or twelve erasures of the contestant's name
from Republican tickets without his seeing them, he says: "I don't think it possible;
I don't think there could have been that rrany and my atten:ion not called to it."

Samson Starkey, the Republican commissioner, corroborates (340) the testimony of
Mr. Brookover with reference to the method of the count, the sufficiency of the light,
and the fact that only one Republican ticket had the contestant's name erased. He
says that he gave his entire attention to the counting and reading of the ballots, and
that it is impossible that ten or eleven erasures of the contestant's nauie from Repub-
lican tickets could have escaped his notice.

The two clerks, Earl (338) and Belch (339), both Democrats, testify substantially
to the same effect, so far as their opportunities for observation went, Earl stating
that one ballot was scratched for each of the Congressional candidates, and Belch
not remembering distinctly, but believing that there were "two or three or four"
ballots with the contestant's name scratched, none of which, however, he saw. Earl
H. Mis. 137 4

50 ATKINSON VS. PENDLETON.

thought the light was good nntil one of their lamps went ont, after which, until
daylight, he could not Bee any too well. Belch could see plainly all the time. Both
of these witnesses were called by the contestee (951, 952) to testify that, in some in-
stances, the commissioners, instead of calling every name upon the ballots, called
them as "straight Democratic" or " straight Republican," and that when Brookover
overlooked a scratch upon one ticket, though not apparently of the name of a Con-
gressional candidate, one Wyatt, a by-stander, called his attention to it. Wya^t also
testifies to these facts (953). So far from weakening, this evidence strengthens the
case made for the contestant by showing that the by-standers were adding their vigi-
lance to that of the election officers, and were quick to observe a mistake, and by
showing also that, notwithstanding the presence of Democratic commissioners, clerks,
and by-stauders the contestee has failed to produce any evidence whatever of the
making of more than one mistake, which was at once corrected, or of the presence of
any scratched ballots except those which were observed and properly classified by
the election officers. The ballots from this precinct, too, were carefully and safely
delivered to the clerk of the county court (370).

If these ballots had really been scratched before they were deposited in the ballot-
box, not only might the contestee have called the by-standers at Martin's School-
House and proved the fact by them, but there was open to him one complete and sat-
isfactory method of proving the fact of the scratching both there and at Archer's
Fork. The tickets which were found, when produced before the county court, to
have these scratches upon them were Republican tickets, and presumably voted by
Republicans, which would have gone that far toward identifying the persons who
voted them. It is not to be presumed that the twenty-four voters who must have
voted the ballots, if they were voted at all, and whoby the fact of scratching expressed
their desire for the contestant's defeat, would through pusillanimity or from any
other motive, observe a unanimous silence through all the incidents which followed
this election. Here are charges and proofs of fraud, suspicion of crime attaching to
their fellow-citizens, the defeat of the candidate of their choice imminent, and all be-
cause they do not come forward and disclose the secret of their ballots. Men may,
and often do, prefer to keep to themselves the names of the persons for whom they
have voted, especially when they have scratched their party ticket. But this objec-
tion to making known how they vote is generally prompted rather by the desire to
avoid petty an uoyances and criticisms than by the fear of any serious consequences,
and these reasons would readily yield when they would consider the much more seri-
ous consequences of their silence. But not one of the twenty-four has been found.
And the contestee was in search of them, too, for we have the important fact devel-
oped that Mr. A. L. Mooney told Hon. Aaron Morgan that he was going to vote for
Mr. Pendleton and work for him at Martin's School-House, and afterwards that he
had voted for him and worked for him, "but had not got very much done for him."
(940.) But Mr. Mooney's own ballot is accounted for by the one Republican vote
which was found to be scratched and which was not counted by the election officers,
and Mr. Mooney seems to do his testifying as the Hon. Aaron Morgan seems to do his
penmanship (941) that is to say, vicariously, for he does not come upon the witness
stand to testify what the little was that he had got done for the contestee.

The ballots from Martin's School House were delivered to the deputy clerk of the
county court on the morning of the 8th day of November (336, 926), aud those from
Archer's Fork were delivered to the clerk on the 7th day of November, in the even-
ing (390). It does not appear on what days the ballots from the other precincts
throughout the county were brought in, but until all had been received those which
had come in were placed in a wooden box, described as an " Arbuckle's coffee box,"
and allowed to remain in the clerk's office, under the clerk's desk, until all had come
in, and the box was then moved into the vault (926). The box does not appear to
have been nailed up during the interval between the receipt of the ballots by the
clerk on the 7th and 8th days of November, aud the production of the box in court
on the 12th day of November.

On the 12th day of November the county court met to canvas the returns from the
various voting places in the county (433). The commissioners who composed the
court were Benjamin Earushaw, T. P. Homer, and David Dulaney (426). The clerk
was John C. McEldowney, and his deputy was R. E. L. Snodgrass (425, 426). All of
these men were De-uocrats (411, 415). The ballots, poll-books, and certificates from
Martin's School House had been returned in a paper sack, and those from Archer's
Fork in another (426, 434). On the 12th day of November these two sacks were
opened in order to permit the county court to obtain access to the poll-books and cer-
tificates (426, 434), and these sacks were not sealed up again until after the recount
had been completed, but were replaced in the box unsealed (426), and so remained
from the 12th day of November until the 26th day of November, when the ballots
from Martin's School House were examined by the county court, and the 27th day
when those from Archer's Fork were examined (434).

There are two questions of fact which have engaged the attention of the witnesses

ATKINSON VS. PENDLETON. 51

\rho testified upon either side with regard to the custody of these ballots. The wit-
nesses for the contestant claim that when the ballots from these two precincts were
produced before the county court to be counted, they were in confusion and appeared
to have been disturbed, while the witnesses for the coutestee claim that they were in
good condition. The witnesses for the contestant also claim that during the recesses
of the court the ballots were not replaced in the vault, as they should have been,
but were allowed to lie in an open box in the clerk's office, accessible to every person
who might enter (411,415,420). The witnesses for the contestee, on the other hand,
insist that whenever the court adjourned the wooden box containing the ballots was
nailed up, pieces of wood being nailed across it, and was deposited in the vault (926,
927, 425).

Another subject of controversy among the witnesses was the character of the
scratching that appeared upon the ballots from these two precincts. There is no
question that the scratching was of a very distinct and perceptible character (94d,
434), and this makes it still more improbable that so many and such marks should
have escaped the attention of the election officers. But the witnesses for the con-
testant claim that th^ ballots from Martin's School-House had been marked with a
very wide black mark, mane with a soft lead- pencil, and that wherever, in addition
to the erasure of the contestant's name, the name of the contestee had been written
upon the ballot, the writing seemed to have been done with a similar or the same
pencil, and that the handwriting differed, as well as the character of the pencil
marks, from the other writiug^and marks which in some instances appeared upon the
same ballot (434). The witnesses upon the other side insist that the writing upon
the tickets was not uniform (946, 947).

The county court began its sessions for the canvassing of the vote on November
12th and did not conclude its labors until November 30 (442). It is not to be inferred,
however, that it labored continuously, day after day, upon the recount. On the con-
trary, the counting of the ballots was protracted, for no apparent reason, from day
to day, and when other resources failed, a curious and suspicious scheme for post-
poning the conclusion of the count was resorted to. On the 21st day of November
(421), Charles E. Wells and U. N. Arnett, from Marion County, were in the town of
New Martinsville, where the court was in session, and Mr. Earnshaw, the president,
was very late in returning to the court-room after the noon adjournment (415). Upon
coming into court, Mr. Earnshaw produced a telegram purporting to be signed by
Frank J. Black, a citizen of Burton (415), notifying Earnshaw that his wife was
very sick. It seems that Wells and Arnett had left town upon the 2 o'clock train
(420), and Wells had sent from Moundsville, in Black's name, this alarming message
to Mr. Earnshaw (363). . Earnshaw thereupon left, and the recount was delayed
some two or three days until his return (420). As a matter of fact, Black had neither
sent the telegram himself nor authorized it to be sent, and knew nothing of it until
Wells himself told him, some days later, that he had used Black's name to such a
message (364). Neither was Earnshaw's wife sick at the time, but on the contrary
attended a merry-making on the 22d and seemed to be enjoying herself (363).

That this whole scheme was carried through by pre-arrangement with Earnshaw
himself is manifset from Earnshaw's conduct after he left New Martinsville. He
went to Burton, it is true, but instead of hastening home, as would have been natural
if he had supposed his wife to be ill, and as he had hastened from New Martinsville,
he loitered around Burton during the forenoon and then went leisurely off toward
his home in the country (366). Now all this would be curious enough by itself, but
when it is taken in connection with Mr. Earushaw's explanation it becomes little less
than astounding. He says (944) that Wells was in New Martinsville, and had busi-
ness with him, wholly unconnected with the election ; that he received the telegram
already referred to, and knew that Charles E. Wells sent it. Then, drawing a nice dis-
tinction, he says that the telegram was not sent for the purpose of interfering with
the recount at all, "further than U necessarily delayed the recount" (944). It may be
taken as admitted, therefore, that the purpose of all this was to delay the recounting
of the votes, and the ballots from Martin's School-house and Archer's Fork were not
counted until after this delay had occurred.

It is not necessary to the case which has been made for the contestant that the
committee shall find either that the ballots showed uniformity in the marking of
them or that they were carelessly allowed to remain in the office of the clerk instead
of in the vault ; nor is it. even necessary for the committee to conclude that the per-
sons who brought about the delay in the recount by so peculiar a scheme were directly
instrumental in altering the faces of the ballots. These circumstances are certainly
sufficient to raise a suspicion that foul play of some kind was afoot. The evidence
of these scratched ballots must be rejected, however, if not for these reasons, then
for another and entirely sufficient one. Let it bo assumed that from the 8th day of
November until the 30th day of that month the ballots in question were kept in the
vault of the clerk's office, except while they were in the court-room in the presence of
the court. Quis custodet custodesl Who looked after the vault ? Mr. K. E. L. Suod-

52 ATKINSON VS. PENDLETON.

grass tells us as ranch as we need wish to know about that matter. After describing
the external fastenings of doors and shutters, he says that the inside door was fastened
with a bolt and the outside by a combination lock; that he himself, John C. Mc-
Eldowney, E. B. Snodgrass, Frank D. Young, and T. B. Jacob are all acquainted
with the combination (927). Mr. McEldowney says that the combination was not
only known to these persons, but also to many others, and that he did not keep the
vault as a security against burglars, but as a fire-proof vault only (427).

It may be inferred from this that the keeping of the ballots in the vault, of which
BO much is made in the evidence for the contestoe, was not so very much better than
the keeping of them in the more commonly used portion of the clerk's office. Indeed,
the vault seems to have been a place of safe custody not only for ballots but also for
beer, and when the clerk and his friends were spending a pleasant evening together,
between the sessions of the court, they went into the vault with pieces of lighted
paper to look for the beer bottles (937). The point, however, that I wish to bring
out, is that during all the time from the 7th and 8th days of November, when the
ballots in question were delivered up by the election officers, R. E. L. Snodgrass, the
deputy clerk, had free access to them at all hours of the day and night, and this
whether they were in the clerk's office or in the vault. When it is considered that
the unanimous testimony of all the election officers irorn these two precincts con-
curs in proving that the ballots were not scratched when they were voted and first
counted, it becomes of grave importance to inquire what manner of persons had access
to these ballots before the county court proceeded to count them.

The case of Kline v. Verree (2 Congressional Election Cases, 3H1), will be found in-
structive upon this point. In that case the contestant claimed that the election officers
in various precincts had made mistakes in the counting, and that their returns were,
therefore, inaccurate. The ballot-boxes were produced, and the ballots recounted,
and it thereupon appeared that the ballots showed a different result from that which
had been returned by the election officers. With regard to one precinct (page 388),
it was claimed that the election officers had overlooked certain " stickers " and b;-
mistake had counted as full ballots, ballots which had really been altered by means
of these stickers. Upon an inspection of the ballots it was perceived that the stick-
ers were upon yellow paper which had been pasted upon white ballots, making a
most striking contrast. The committee in its report pertinently remarks : "None
but a blind man could make the mistake of overlooking these stickers, for none other
could fail to see them." The same remark might be applied to the pencil marks
upon the ballots which are here in question. But I have referred to the case mainly
for another purpose. When the discrepancy was discovered between the returns
made by the election officers and the votes shown by the ballots as produced, inquiry
was naturally made into the custody of the ballots during the interval between the
two counts. The ballot-box from the third division of the Eleventh ward (page 387)
had been left in the custody of Alderman Williams. It had been sealed up, and when
produced was apparently in the same condition, so far as the seals were concerned,
as when it had been delivered into the custody of the alderman. But the box had
been kept in the office of the alderman, upon a shelf, and this office was a place ol'
frequent resort, especially by a constable named McKinney. While it appeared that
McKinney had .carried this box from one place to another, and had at one time in-
trusted it to another man, it was not shown that McKiuney had tampered with the
ballot-box in any respect, but after he had been shown to have made the office a
place of resort into which he could enter during the alderman's absence, the commit-
tee came to a conclusion with regard to these ballots, which they expressed as fol-
lows:

" The character of McKinney was attacked, and it appeared that he had been con-
victed of extortion or obtaining money by fraud, and had been pardoned by the gov-
ernor, and since elected constable of the ward. Alderman Williams testilied that he
would not believe him under oath. If his character is as bad as claimed by the con-
testant, the committee believe him to be a very unsafe person to keep the company
of ballot-boxes for three months, or be intrusted with them as he was by Alderman
Williams, to carry to the magistrate's office, and would be a very suitable person to
do or connive at the very thing he testifies was done. The committee could, nowever,
place no confidence in the integrity of a ballot-box which had been in such company
and keeping for three months, and when opened was found not to agree with the
sworn returns received at the time of the election. By this recount the contest-suit
gained 17 votes. As the entire recount gives him but 8 majority, it is obvious that
without this correction the result can not be changed. The committee think it
would be most unsafe to contest the returns by such testimony."

Let us inquire, therefore, what sort of a man it was who was keeping company
with these ballots for three weeks, long enough certainly for any purpose of Iraud
to be accomplished. Wo need look no further than tho testimony in this cause to
ascertain that Snodgrass, if he had not been, in the language used by the committee
in the case just cited, "convicted of extortion and obtaining money by fraud," was

ATKINSON VS. PENDLETON. . 53

saved from the commission of snch a crime not by his conscience, but by the refusal
of his intended victims to be defrauded. Shortly after the recount had been con-
cluded, aud while there was yet much excitement in the public mind, over what was
believed to have been a fraud, this precious deputy opened negotiations with Mr.
Cowden, the chairman of the republican State executive committee for West Virginia,
intimating that he knew who had scratched the ballots from Martin's School House
and Archer's Fork, and that be was ready to disclose what he knew upon the pay-
ment of a sufficient consideration. Upon this intimation, Mr. Cowden, with one or
two confidential friends, had an interview with Mr. Snodgrass, in which the latter
gave it to be understood that he had this important information, and was ready to
sell it,

It is not necessary to follow the details of the negotiation, which fell through os-
tensibly because the price asked was too high, but really, I suppose, because Mr.
Cowden could obtain no assurance that Snodgrase was to be trusted, to comply with
his part of any agreement which might be entered into (393, 414, 430). But Snod-
grass has gone too far. The fact that he had been negotiating could not be kept se-
cret. It was necessary for him to devise some explanation, and to offer some reason
why he had been in consultation with the Republicans. He not only devised the ex-
planation, but testified to it and coolly presents in his testimony a picture of himself
which would scarcely be more infamous if he had confessed to have altered the bal-
lots. His explanation is that he had arranged with one Grail to play a trick upon
Mclntire and Cowden, and trick them out of their money. In making the explana-
tion he thinks, apparently, that he has satisfied the requirements of any person's con-
science when he has explained that he did not tell Mr. Mclntire or Mr. Cowden that
he knew anything about the ticket scratching, but only said to them that he would
tell them, for $3,000 in cash, all he knew about the ticket scratching (931, 933). He
adds that he did not know at that time and does not know at this time anything what-
ever about the ticket scratching (933). He said to them, though, that in case he made
a statement in relation to the matter, he would furnish circumstantial evidence that
snch statement, whatever it might be, was true (933). On cross-examination he was
asked what his object was in telling Mr. Cowden that he was getting $60 a month,
and that he might be discharged if he should tell all he knew about the ticket scratch-
ing. The portion of his deposition which immediately follows presents the whole man
in his naked infamy :

" A. 15. My object was, if possible,"to get him to advance the $3,000 to me for telling
what I knew about the ticket scratching^

"Q. 16. Yet at that time and now you say you knew nothing about the ticket
scratching. Is not that so? A. 16. Yes, sirj I said that I knew nothing about the
ticket scratching.

" Q. 17. Then your intention was to deceive Mr. Cowden to get the $3,000, or what-
ever sum of money you could, and give him nothing in return? A. 17. My intention
was, as I said before, to enter into a written contract, signed in duplicate, to tell all
I knew about the ticket scratching, and further, I intended to comply with the con-
ditions of the contract, and if anybody was deceived thereby I care not.

" Q. 18. But did you intend to deceive Mr. Cowden ? A. 18. I thought that if he
was foolish enough to be deceived by the statement I had made him, it was all well
and good so far as I was concerned.

" Q. 19. But did yon not intend to deceive Mr. Cowden ? A. 19. It was my inten-
tion to deceive Mr. Cowden or any one else who were foolish enough to be deceived
by statements, and it was my object to secure the $3,000 from any one who was fool-
ish enough to pay it to me for telling what I knew about the matter."

This witness, therefore, shows himself to have been willing to commit the crime of
obtaining money under false pretenses, by "extortion orobtaining money by fraud,"
as the committee'pnt it in Kline v. Verrec. If the constable in that case was for that
reason considered bad company for the ballots, the deputy in this case must for the
same reason be considered equally bad company, and the ballots themselves, to which
he had constant access, are so tainted with suspicion as to make them worthless as
evidence to. overthrow the sworn returns of the election officers. In truth, when the
matter is fairly considered, we have simply the oath of this man Snodgrass against
the oath of all the election officers at these two precincts. For we only know by his
oath that he really did not know anything about the scratching of the tickets, and
did not engage in the scratching himself.

There are some other peculiar circumstances connected with this
recount not spoken of in the brief which we have quoted.

These two precincts were not recounted until al'ter the president of
the county court had procured an adjournment by telegram referred to
in the evidence and brief, known to him to be false, and designedly
used by him to deceive.

54 ATKINSON VS. PENDLETON.

This telegram was by him shown to a leading Republican, Mr. Mcln-
tyre, engaged in watching the proceedings, and his opinion asked about
going home. The judge talked quite awhile about his wife's sickness
aud appeared to be much affected. (Record, ps. 214,215.)

This, of course, was for a purpose, and designed to deceive. On the
same day this judge had been in an upper room of a hotel in the town,
iu company with Wells, the sender of the false telegram, and of Lee
Snodgrass, the deputy clerk. (Record p. 224.)

Up to this time the plurality for Atkinson had not been overcome and
the count was nearly completed.

Previously, at a late hour of the night, that same judge had entered
the vault where those ballots were kept, with one Grail and the clerk
of the court, on the hunt, as he says, of a bottle of beer.

Grail was staying around the court during the recount, and remain-
ing after the work of the day was over, usually pretty drunk ; a fit tool
for dirty work, if he could be trusted, and this a fit opportunity to find
just where the ballot-box containing the ballots was located.

But Grail didn't sober up. Wells and Arnett visit the town. Judge
Erushaw and Lee Snodgrass have a private interview with them.
Wells leaves town and sends a false telegram in another name, by pre-
vious arrangement. The court adjourns for two or three days, and
then comes the recount with the extraordinary result. Ballots, too,
which bad been expressly forbidden to be resealed at the beginning of
the recount by the same judge, over the protest of the attorney for Mr.
Atkinson, who had asked that the ballots after they had been opened
on the first day of the recount, might be resealed until wanted during
the recount.

The false telegram, sent by Wells in the name of Black, was dated
November 21, 1838. The recount did not begin again until November
23 or 24.

The connection of Wells and Arnett with this recount is shown by
another telegram sent to them at New Martiusville, November 24, by
which it appears that they had returned, and on business connected
with the count.

The telegram may be found on page 421 of the record, and is as fol-
lows :

CHARLESTON, W. VA., November 24, 1888.
To C. E. WELLS or W. N. ARXETT, New MartinsviUe, W. Fa.:

St. Clair says hi' can go to Wetzel on Monday if necessary. Have court adjourn
uutil counsel can be heard.

McG.

Thus it is clearly made to appear that Wells and Arnett were in New
MartinsviUe on business connected with this recount ; that they helped
to secure an adjournment at a critical time by deception, giving the
publican apparently good reason therefor; that Judge Erushaw aud
the deputy clerk were in consultation with them ; that previously it
took three persons, including the judge, to hunt for one bottle of beer
in the ticket vault, and finally that the tickets when recounted dis-
closed the change heretofore shown.

Under this evidence there is no room for doubt that these ballots
were fraudulently changed after the recount commenced.

They were not safely and securely kept during the count free from
opportunity to tamper with them.

Some of the official custodians were improper persons, as is demon-
strated, to have charge of them.

ATKINSON VS. PENDLETON.

The correctness of the original count is clearly established outside of
the presumption in its favor, and therefore the committee adopt the
returns as a correct statement of the vote in the two precincts of Wet-
zel County, and hold that contestant was elected by a plurality of
seven votes according to the correct returns.

By this conclusion the burden shifts, and it now devolves upon con-
testee to establish his right to the seat which he occupies by affirmative
evidence.

This he seeks to do by charging that illegal votes were cast and
counted for contestant sufficient to overcome this apparent majority
and to outnumber the illegal votes alleged to have been cast and counted
for coutestee.

The committe have carefully examined the evidence in the record on
this branch of the case, and have given due consideration to the briefs
and oral arguments, and have reached the conclusion following :

For convenience we shall follow the order adopted by the parties,
keeping up the numbers as we find them in the briefs.

We find that the folio wing- named voters were not legally qualified to
vote at the places where they voted, and that they voted for contestee :

No.

Name.

Remarks.

4 Clarence Trrr Unsound mind.

10 Calvin Ashcraft Do.

11 Newt Wilt Do.

12 John Furguson Do.

13 Henry Keestemeyer Do.

16 John Davis Non-resident.

17 Byron Bates...- Do.

19 P. H. McConaughey Do.

26 Win. McKinley .. Do.

33 Joseph Crawford ^ Do.

38 Robert Dreamer. ..'. ' Do.

41 John C. Clowson Do.

43 Smith Marks Do.

44 John Gallegan Do.

45 John W. Skinner Do.

47 John Lodge Do.

48 Jacob Mellbaugh Do.

49 John F. Paugh Do.

50 Alvin Cresswell Do.

52 A. M. Prettyman Do.

54 Allen Hart Do.

56 Thomas Brothers ... Do.

58 William Kidd ." Do.

59 George Kidd Do.

60 Isaac Carpenter Do.

62 William Kleives Do.

64 George W. Storm Do.

65 W. A. Delaplain Do.

66 Jack Hamilton Do.

67 B. K. McMechen Do.

68 George Baired, jr . Do.

70 Joseph Kress Do.

73 Pat Williams Do.

76 Lee Minor Do.

79 Reuben Wade Do.

87 Amos James Do.

89 Lee Ganite ............ . Do.

90 Rev. D. C. Weese Do.

91 Lloyd Brown Do.

92 Sandy Redman Do.

93 Homer Griffin... Do.

94 G.A.R.Kuhn ...I Do.

105 Isaac "Woofter Do

106 Jasper Beals Do.

107 Silas Beals Do.

108 Wm. O. Nitengale ..! Do

109 James Hickey Do.

116 Frederick Aushutz Do.

118 John Mallony Do.

156 H. C. Carrier . Do.

158 Frederick W. Bloom . . . .... Do.

19 JessTuttle ....... Do.

ATKINSON VS. PENDLETON.

No.

Name.

Remarks.

197

John M. Roberts

198

J. P. Pope

Do.

199

Judson Brown

Do.

201

John Deberry

205

J. W. Squires, alian Wyatt

210

Ashly Davis

Do.

213

William Weekly

215

R. L. Kidd

Do.

217

Joseph Kersey

Do.

219

Henry Beuter

Do.

Jacob Wertzberger . .

221

Henry Copps

Do.

222

Harry Noble

Do.

223

Edward Krester .. .

Do.

225

John Roth.

2?,6

Thos. Ulmaij

?27

Newton Johnson

Do.

2?8

Jerry D'arreber .

229

James Ki in ball ....

234

Henrv Fisher

255

Wm.Kimmey

Do.

237

Patrick Callaghan

Foreigner.

240

John Drosinski

Do.

245

John Burke ...

249

Thos. Seaman

Do.

From Nos. 95 to 104, inclusive, are employes of the State asylum for
the insane. We think the evidence shows that they have fixed their
residence there and were entitled to vote.

The statute which declares that employes of the State shall not
thereby become residents of the place where employed does not prevent
their becoming residents if they so elect. The presumption of non-resi-
dence can be overcome by proof, as in this case.

From 120 to 154, inclusive, the voters voted at Braxton Court House,
and it is insisted that the territory in which they lived had not been le-
gally annexed to that voting district. An attempt had'been made to so
annex it, the residents had so voted for twelve years, and we do not
think they can be disfranchised on account of technical neglect of the
court, after years of acquiescence in what was supposed to be a legal
order, and we hold the votes good.

From 159 to 194, inclusive, it is alleged that the voters voted out
of their wards in the city of Wheeling. " While from the oral evidence in-
troduced it is quite evident that some ten or twelve of these voters
voted out of their proper wards, the committee are not disposed to
include them in the list of illegal voters, for the reason that no record
evidence was introduced as to ward boundaries, and while both parties
seemed to concede the competency of the evidence introduced, we do
not feel like going into the question, in the absence of that better evi-
dence which must have been easily accessible.

In country precincts common repute and generally acknowledged,
boundaries will suffice, but the boundaries of city wards, when disputes
arise about them, ought to be proven by better evidence. But for this
technical neglect the committee would be obliged to find at least ten
illegal votes in this list. According to our finding there were cast and
counted for contestee seventy-six illegal votes, as above named. As to
most of these votes there can be no doubt under the evidence. As to
a very few there may be a question depending upon the weight at-
tached to the evidence of different witnesses.

The committee have given the presumption in favor of actual resi-
dence, as against a claimed intent to return to an abandoned residence
when the intent only appears by the act of voting.

ATKINSON VS. PENDLETON. 57

We have refused to reject the votes of actual residents even when it
appears 'that the voter had been in the habit of calling a former resi-
dence his home.

It is quite clear that at this election a strong effort was made to bring
back to the State all absentees who had formerly resided in the dis-
trict, and who had not lived abroad long enough to acquire a right to
vote.

Some election officers seem to have adopted the erroneous view that
a man retains his right to vote in his old home until he acquires aright
to vote elsewhere.

Eesidence may be acquired in a day, but the right to vote may de-
pend on the length of residence. There are several other illegal votes
in the list challenged by contestant, but no evidence deemed admis-
sible by the committee as to how they voted. These have been left out
of consideration, the committee adhering to the rules laid down in
Smith vs. Jackson, reported at this session.

The vote, No. 253 that of Arthur Bond was tendered and ought
to have been received, as he was clearly a legal voter. He tendered a
vote for contestant and his vote should be counted against contestee.

The same is true of No. 252, Silas Friend.

Allowing these two, and there are seventy-eight votes to be deducted
from contestee.

Attorneys for contestee in their brief attack 153 votes charged to
have been illegally cast tor contestant, and in a supplemental brief, 21
more making 174 in all.

These they have numbered 1 to 153 in original brief, and from 1 to 21
in supplemental brief.

Of these, Nos. 13 to 85, inclusive, are like those attacked by con-
testant at Braxtou Court-House.

The attacked votes from 13 to 85 voted at Wellsburg, where they
have been in the habit of voting for the last eleven years. And it is
charged that they lived in a portion of the town not belonging to the
Wellsburg voting, precinct.

The facts are well stated in contestant's reply brief at page 16.

It seems that before the year 1887 the north line of the town of Wellsburgh and
the district of the same name have been coincident, and that immediately north
of the town and in Cross Creek district lived a considerable population who vote afc
a precinct known as " Harvey's."

lu September, 1878, the circuit court of the county entered an order extending
the corporate limits of the town of Wellsburgh so as to include the voting precinct at
Harvey's, and so as also to include the residences of those 7H voters. * *

The voting precinct at Harvey's was abolished and a new one opened, first at De-
venney's aud then atLazarville, before the general election of 1878. This change was
made because it was the understanding that the voters who resided within the re-
cently included territory would vote in the Wellsburgh district, and the old voting
place needed not therefore to be retained for their convenience, and so from that time
for eleven years the voters and the county authorities have treated the region in-
cluded in the town as being also a part of the district of Wellsburgh. The persons re-
siding in this region have continuously and without objection voted in Wellsburgh.

Officers were appointed from persons residing in this territory re-
quired by law to be residents of Wellsburgh district.

In August, 1878, the county court established by an order of record
a new precinct "in lieu of Harvey's, which is now within the boundaries
of the district of Wellsburgh," thus recognizing this territory as being
within Wellsburgh district.

It is not necessary to inquire whether all the forms of law have been
complied with to take this territory into Wellsburgh district.

The court and the people recognized the fact j it was accepted as

ATKINSON VS. PENDLETON.

something accomplished, and the addition has been accomplished as a
matter of fact.

Voters are not to be disfranchised under such circumstances any more
than the acts of de facto officers are to be held invalid in collateral
proceedings. The committee hold that these votes were legally cast,
and do not enter upon any investigation of the evidence as to who got
the benefit of them.

The following votes cast for contestant are held illegal :

Numbers as in contestee's brief.

No.

Narue.

Remarks.

3 Frank Davis Minor.

W. H. H. Smith Non-resident.

Wm. Weaver Do.

Frank Bowman (named twice) Do.

Alfred Craft Do.

92 C.W.Wallace Do.

98 M. Pratt Do.

100 Frank Justice Do.

102 William Conners Do.

103 George Cox* Do.

106 Samuel Shiives* Do.

107 Samuel Adams Pauper.

1 16 Andrew Nicholson. Non-resident.

117 Jonah Dennison - Do.

121 All Ratcliff Do.

122 George Batton Minor.

124 Jacob Burcher ' Unsound mind.

126 Samuel H. Feltro Non-resident.

130 George Cartright Minor.

134 John Carpenter Convict.

135 T.H.Branson Minor.

131 ErtgarEwing j Non-resident.

143 Charles Vennum * Do.'

144 Thomas McCurdy* Do.

149 Bundy Do.

151 Lloyd J. Janes Do.

153 Jacob Hall Do.

SUPPLEMENTAL BRIEF. ,

3 Charles McDonald Non-resident.

6 Selathial Crow Pauper.

8 James Cunningham Non-resident.

12 Frederick Bowers Unsound mind.

13 G. W. Simms... Non-resident.

17 Melvin Ault Do.

19 Lewis Barnard.. ,

Nos. 20 and 21 are possibly illegal and the four marked with an as-
terisk (*) are doubtful, making in all thirty-six illegal votes cast for
contestant including these doubtful votes. Josephus Daniels, No. 1, in
contestee's brief, claimed to be a minor, conceded by contestant, was
not a minor and his vote was legal. The concession was made by
overlooking the record of the marriage of his parents, which was a year
earlier than the oral testimony showed.

The result shows illegal votes cast

For contestee 78

For contestant.... 36

Contestant's returned, majority - .---- 7

To which add 78

85
Subtract illegal votes for contestant 36

Balance... 49

ATKINSON VS. PENDLETON. 59

The large number of illegal votes makes it out of the question to re-
view the evidence touching each vote.

The briefs filed in the case refer to the pages in the record where the
evidence may be found, with a few exceptions, where attorneys seem to
have overlooked some testimony in a lew instances of considerable im-
portance but only affecting two or three votes.

The comijiittee are satisfied that a careful examination of the evidence
will verify the accuracy of our findings and fully justify this report
in every important particular.

In accordance with these findings, the committee propose the follow-
ing resolution, and recommend its adoption:

Resolved, That George W. Atkinson was duly elected a Representa-
tive to the Fifty first Congress from the First Congressional district of
West Virginia at the election held November 6, 1888, instead of John
O. Peudleton, and that said George W. Atkinson is entitled to his seat
as such Representative.

VIEWS OF THE MINORITY.

The preponderance of the evidence indicates that the recount in
Wetzel County properly represented the votes cast.

Applying to the testimony the law as laid down in Smith vs. Jack-
son, more illegal votes are shown to have been cast for contestant
than for contestee, and contestee's right to the seat is accordingly sus-
tained.

VIEWS OF THE MINORITY.

Mr. O'FERRALL, from the Committee on Elections, submitted the fol-
lowing as the views of the minority :

The vote in the First Congressional district of West Virginia, as re-
turned to the governor of that State and upon which a certificate of
election was issued to John O. Pendleton, the contestee, was as follows :

For John O. Pendleton, contestee 19,261

For George W. Atkinson, contestant 19, 242

Majority for Pendleton, contestee 19

Upon the face of the returns, it will be observed, Peudleton, the con-
testee, was elected and entitled to the certificate of election, and has
the prima facie right to the seat he holds.

The contestant recognizing the fact that the coutestee has the priina
facia right bas undertaken to show his superior right by alleging in his
notice of contest that many persons disqualified under the constitution
and laws of West Virginia voted for the contestee; that votes tendered
for him, the contestant, by persons duly qualified were rejected by the
officers of election ; and that in the county of Wetzel fraud was com-
mitted in the recount of the ballots of 2 precincts Martin's school-
house and Archer's Fork by which he lost 14 votes at the one and 10
votes at the other, and the contestee gained 2 votes.

All these allegations are denied in the answer of the coutestee ; and
he makes counter-charges that many illegal votes were cast for the con-
testant, and that legal votes tendered for him were rejected by the offi-
cers of election.

The issues then are plainly and distinctly drawn between the parties
and can be readily understood.

We have not seen the report of the majority of the Committee on
Elections, and we do not know upon what ground they hold that the
contestant has overcome the prima facia right of the contestee and is
entitled to the seat now occupied by the contestee ; all we know is that
they so hold, but as to what votes they exclude or count on either side,
or what (heir conclusions are as to the alleged fraud in the recount in
Wetzel County we are leit in the dark.

We, therefore, are compelled to present our views sustaining the right
of the coutestee to the seat without anj T specific reference to those of
the majority.

The record in this case is very voluminous, covering more than 1.500
pages of printed matter, and its examination has required much time
and labor.

Adopting substantially the law laid down in the recent case of Smith
vs. Jackson, so far as it applies to the questions involved in this case,
we find, in our opinion, that the votes cast by the following-named par-
ties were illegal, and that they were cast for the contestee and contest-
ant, respectively, as follows:

ATKINSON VS. PENDLETON.

For the contestee :

1. Thomas L. George.

2. Smith Marks.

3. John F. Paugh.

4. Thomas Brothers.

5. William Kidd.

6. B. K. McMechen.

7. George Baird, jr.

8. Joseph Kress.

9. Charles Rogers.
10. Isaac Woofter.

For the contestant :

1. Cephas Daniels.

2. Frank Davis.
;<. Joseph Dillon.

4. J. D. Trumbo.

5. J.E.Dillon.

6. B. F. Friend.

7. G.W.Ro-e.

8. J. D. Bradley.

9. Wilmer Weaver.

10. Alfred Craft.

1 1. Josiah Wingrere.

12. Frank Bowman.

13. Shonnan Kirk.

14. Frank Justice.

15. John Atnmon.

16. William Conners.

17. George Cox.

18. Michael Kelley.

U. A. F. Wilmotb.

12. Frederick Anshurtz.

13. Thorn js Marsh.

14. Frederick W. Blooiue.
16. William Law Hooff.

16. J. W. Squires.

17. R. E. L. Black.

18. William Weekly.

19. Henry Beater.

20. Jacob Wiltzberger.

19. C.B. Mills.

20. Samnel Shrives.

21. J. E. Ramsey.

22. J. J. Rogers.

23. Harvey Bee.

24. Andrew Nicholson.
25 Jessee Seeders.

26. Al Ratcliff.

27. George Batton.

28. Jacob Beucher.

29. W. E. Parrish.

30. Samuel H. Felton.

31. R.J. Ta lor.

32. Richard Johnson.

33. Geor *e Cutrtght.

34. John Carpenter.

35. Robert Prettyman.

36. John Wise.

21. Henry Copps.

22. Harry Noble.

23. Edward Kreiter.

24. Thomas Ullum.

25. Newton Johnson.

26. Jerry Farribee.

27. Henry Fisher.

28. Patrick Callahan.

37. Owen McCoy.

38. J.W.Grigsby.

39. Charles Vennm.

40. Thomas McCurdy.

41. J. H. Branson.

42. Joseph Shaw.

43. Arthur Wallace.

44. Samuel Murray.

45. Bundy.

46. J. C. Connelly.

47. Jacob Hull.

48. Dana Hubbard.

49. Charles McDonald.

50. Salathiel Crow.

51. Lindsay Hart.

52. Henry Chambers.
63. Frederick Bowers.
54. W.H.Lewis.

These voters either testified themselves for whom they voted, or it
was shown satisfactorily that they were pronounced in their political
opinions at the time of the election, or that they declared on the day of
election which ticket they had voted or, that they were accompanied
to the polls by well-known party workers, or that their votes were
challenged by the supporters of one and their right to vote defended
by the supporters of the other ticket, or like circumstances, raising a
strong and legal presumption as to the ticket they voted and the can-
didate for whom they voted.

This was as much latitude as we believe the law as heretofore gener-
ally 5i d ministered in this House would allow, and in our opinion, the
extreme limit to which sound public policy, the security of elections,
and the ends of justice in this case, as well as all others in this or future
Congresses will permit.

We deduct then 28 votes from the contestee and 54 votes from the
contestant.

Besides these illegal votes there were the following :

Class 1.

1. John Gilligan.

2. John Lodsie.

3. Jacob Millbaugh.

4. John M. Utler.

5. William Klieves,

6. W. A. Delaplane.

7. Pat Williams.

8. Lee Minor.

9. Bode Davis.
10. John Deberry.

11. William Kimmey.

12. Thomas Seaman.

13. Reuben Wade.

14. Lloyd Brown.

Class 2.

1. W.H.H. Smith.

2. William Shriner.

3. Samuel Adams.

4. Carter Smith.

5. James Applegate.

6. M I'. Jones.

7. William Bates.

8. Edgar Ewing.

9. I. H. Fitch.

10. Lloyd L. Janes.

11. Millard Stout,

12 William A. Moore.

13. Harrison Earp.

14. Alonzo Patterson.

15. Nicholas "Veltz.

16. Wilson Hubbard.

17. James Cunningham.

18. Bud Lay I on.

19. William Myers.

20. G.W.SimmH.

But we have not deducted any of these votes, for the reason that the
proof as to bow they voted does not come within the rule already stated.
As to class 1, the testimony simply shows that they were considered

ATKINSON VS. PENDLETON. 65

or reputed to be Democrats, but when they had expressed themselves,
or what opportunities the witnesses had for ascertaining their senti-
ments, does not appear. As to class 2, the testimony is of the same
character, only differing in this that they were considered or reputed
to be Republicans.

In a country like this, where the political opinions of voters are con-
stantly changing and new issues are constantly springing up, where
party votes fluctuate from year to year and majorities shift from one
side to the other, where each of the two great dominant parties strain
every nerve in every campaign to convert those who have been in the
ranks of its enemy to its policy, and the other weaker parties seek to
gather strength from both, we think it would be dangerous, indeed,
to hold that a Democrat or Republican in 1884, or even later, was pre-
sumptively a Democrat or Republican in 1888. Particularly strong
does this reasoning apply, in our opinion, to the election of 1888 In
that election a most important issue, which had been dormant at least
for years, sprung into pre-eminent prominence and became at once the
shibboleth of both the Democratic and Republican parties. In many
sections former party lines were broken ; Republican communities be-
came Democratic, and vice versa. It is a well- recognized fact that it
was an election of surprises to both parties.

But without pursuing this line of argument further, we think that
the authorities are almost uniform in support of the proposition that
mere proof that a voter was considered or reputed to belong to a par-
ticular party is not admissible to show how he voted at an election, and
certainly not unless it appear conclusively no better evidence could
have been procured.

We find further that the following duly-qualified voters tendered
their ballots respectively for the contestant and contestee and were re-
jected improperly by the officers of the election :

For contestant:
1. .Silas Friend. 2. Arthur Bond.

For contestee:
i. Martin Conners. 2. B. F. Todd.

We think these votes should be added to the vote of the contestant
and contestee respectively ; that is, two votes to each.

The contestant charged in his notice of contest that 35 votes were
cast for the contestee in Holly district, in the county of Braxton, which
were illegal.

He based his charge upon the ground that in 1874 the county court
of Braxton proceeded to change the boundaries of the districts and to
reform them without giving the notice required by the statute, and that
the 35 persons named, though living within Holly district as then
formed, by the order of the county court were not legal voters in that
district.

The evidence showed that these voters had voted at former elections
in Holly district and many of them for years ; that their votes had al-
ways been counted, and no question as to their legality had ever been
raised.

The contestant also charged that 35 votes were cast in the city of

Wheeling for the contestee by persons at voting places in districts or

wards in which they did not reside. No record evidence as to the

H. Mis.

66 ATKINSON VS. PENDLETON.

boundaries of said district or ward was offered ; the witnesses differed
as to the limits of the districts and wards, and there appears to have
been much doubt as to the lines. The voters all believed they were
voting in the proper districts and wards, and the judges of election were
of the same opinion.

Under these circumstances we do not think these voters should be
disfranchised or that the contestee should lose their votes.

The contestee charged in his answer that 73 votes cast for the con-
testant in Wellsburg district, in the county of Brooke, were illegal,
and insisted they should be deducted from the vote of the contestant.

Upon an examination we found that all of these voters acted under
an honest belief that they had the legal right to vote in Wellsburg
district; that this had been the usual voting place of all the voters liv-
ing within the boundaries in which they lived for years, and that it was
another case of confusion and misapprehension as to lines and orders
of the court, and under this state of facts we have determined that it
would be unjust to the voters, as well as to the contestant, to deduct
these votes.

We come now to the consideration of the recount in Wetzel County.

It is claimed by the contestant that there was no mistake made by
the officers of the election at Martin's School House and Archer's Fork
in their count, and the return they made, but that the ballots were
changed after they had been returned to the clerk's office of the county
by " scratching" his name on 24, and inserting the name of the con-
testee in two of them, so that he lost thereby 24 votes, and the con-
testee gained 2 votes.

Of course the officers of an election, unless they are corrupt, believe
that the returns they make is correct and are ready and willing to testify
to that effect. So with the officers at these precincts ; they testify, and
no doubt truthfully, that they do not believe they made any mistake or
that they overlooked any "scratched" ballots. But when the recount
took place the scratched ballots referred to were found by the county
commissioners, and we must ascertain as best we can whether honest
mistakes were made by the precinct officers or the tickets were fraudu-
lently " scratched " by some miscreant after they reached the clerk's
office.

Let us then examine the testimony.

MARTIN'S SCHOOL HOUSE.

First. The count was long and tedious.
A. B. Streight, judge (record, 335):

Ques. When was the counting done ? Ans. Commenced counting right away after
the polls closed ; counted that night until about 2 o'clock; then quit counting and got
something to eat and took us a sleep ; commenced next morning ; don't know exact
time, and counted on until done ; only quit long enough to get something to eat.

W. H. Parks, clerk (record 337) :

Quest. When was the counting done T Ans. We commenced counting after the
polls was closed in the evening, and counted until one or two o'clock that night, and
adjourned till next morning, when we resumed count and finished late that evening.

William J. Wykert, clerk (record 335) :

Quest. When was the counting done f Ans. On the night following the election
we counted nntil about midnight, and the next day from the time we got there until
9 or 10 o'clock at night.

ATKINSON VS. PENDLETON. 67

John R. Woods, judge (record 336) :

Quest. When did you commence to count and how long were you engaged ? Ans.
We began to count the night of the election day, and counted until about 9 or 10
o'clock that night, and commenced the next day about 10 o'clock, and finished that
night about 9 or 10 o'clock.

Thomas H. Alley, judge (record 343) :

Quest. When did you commence to count the vote cast at your election precinct
on the 6th day of November, 1888, and how long were you engaged in counting it?
Ans. We commenced about dark the day of the election ; we counted on until about
11 o'clock that night, when word came that John Woods's (one of the judges) child
was sick and for him to come home ; we then adjourned until about 9 or 10 o'clock
the next day ; John Woods had then come back ; we finished counting about 11
o'clock that night.

According to these statements made by the three judges and two
clerks, they were engaged in receiving and counting the votes not less
than thirty hours two entire days and until late in the night of each
day. These officers were men unaccustomed to such work ; their usual
rest was broken in upon, and it is but natural that they should have
made mistakes, and that frequent mistakes were made is shown by the
testimony. (Record, 337.)

Second. During the nights of the count the light was bad. There
were two lamps and a lantern part of the time, and then only two
lamps, and one was used by the judges and the other by the clerks
(Record, 336). The judge who took the ballots from the box, and who
said he read each ticket, was sixty-two years of age and a Republican
(Record, 335). The judge who read off the tickets to the clerks used
glasses and "usually voted the Democratic ticket;" but as to how he
voted in this election he is silent (Record, 337). The judge who strung
the ballots voted for the contestee, but he only examined the tickets to
which his attention was called as u scratched" ballots. He was sixty-
two years of age. (Record, 343.)

Streight, the Republican judge who testified with so much freedom
that there was no difficulty in making the count, said when he delivered
the ballots to the county clerk " that he had had trouble enough with
them ; that it had been an awful job to count that vote," and " told how
long the commissioners had been about it, that the judges and clerks
were all worn out when they got through." (Record, 948.)

His memory, too, upon the witness stand seemed to be exceedingly
good, but how much reliance is to be placed in it is shown by his failure
to remember how the vote stood between the contestant and contestee
at his precinct when he delivered the return, to the county clerk on the
day after the count was concluded, and also by his statement at the
same time that " almost everybody voted for the removal of the county
seat; that there were only seventeen or eighteen votes against it,"
when the returns made by him as one of the judges at his precinct
showed some sixty votes against it, and when asked if he could not be
mistaken, he said u he was pretty positive." (Record, 948.)

Third. When the ballots were recounted by the county commissioners
14 Republican ballots were found upon which the name of the contestant
had been scratched, and one had the name of J. W. Yeater substituted,
and two had the name of J. O. Pendleton inserted. One Democratic
ticket had the name of Fleming, the Democratic candidate for governor,
erased, and the name of Goff, his Republican competitor, substituted.
(Record, 948.)

The scratching was done with a lead pencil ; some were erased by
small crosses thus x X X X, others by straight marks. The county

68 ATKINSON VS. PENDLETON.

commissioners in considering them held them up to the light as if un-
able to decide whether the ballots were scratched at all; the scratching
did not appear as having been made by the same person. (Record, 947.)
We are of the opinion that all the circumstances connected with the
original count at Martin's ' School-house, coupled with the indistinct
marking of the ballots, go to show that the two judges who say they
read all the ballots, in their worn and tired condition, with imperfect
eye-sight and bad light, overlooked the marked* or scratched ballots
which were subsequently discovered, and that such was the fact no one
could question for a moment, but for the charge that the ballots were
tampered with after they were delivered to the clerk, and this we will
hereafter consider.

ARCHER'S FORK.

At this precinct the evidence even much more strongly points to mis-
takes in the count by the officers of the election. The recount discloses
10 ballots upon which the name of the contestant had been scratched.

First. The count commenced directly after dark and continued all
night and until about noon the next day. (Record, 951, 952.)

Second. The light was bad. There were two lanterns and a small
lamp until about 11 o'clock in the night ; from 11 o'clock till 4 o'clock,
one lantern and the small lamp ; from 4 o'clock until daylight, only the
small lamp. (Record, 953.)

Third. Two of the judges were so fatigued and worn out that they
went to sleep while the count was progressing. ( Record, 953.)

Fourth. There is direct evidence the judges did not observe that one
ballot was scratched until their attention was called to it by a by-
stander who happened to see it, and this was in broad day-light, about
10 o'clock in the morning. (Record, 952, 953, 954.)

Fifth. The proof is positive that the judge who called off the ballots
for the clerks to tally did not, after the count had progressed awhile,
read the names on the ballots, but would call " straight Republican
ticket," "straight Democratic ticket," "straight goods," "hurrah for
Harrison; all wool and a yard straight goods," "hurrah for Cleveland,
all wool a yard wide and straight goods," and the clerks would tally all
through the long Republican or Democratic ticket as the call might in-
dicate. (Record, 952, 953, 954.)

In the light of this testimony the verity of the count by the judges at
this precinct is greatly shaken, and the discovery of scratched ballots
by the county commissioners at the recount is not at all surprising, and
would be accepted as conclusive evidence of mistakes by the judges of
the precinct in the absence of proof that the ballots were tampered with
after they were received by the clerk of the county court.

It appears in evidence that there was dissatisfaction expressed as to
the Republican nominee for Congress, and several Republicans de-
clared their intention to cut him, and one who had been an active
worker declared he would injure him where he least expected. If these
Republicans carried out their threats the "scratching" at Martin's
School-House and Archer's Fork was the natural consequence.

CHARGE THAT BALLOTS WERE FRAUDULENTLY SCRATCHED.

As already stated, the county commissioners found 24 ballots upon
which the name of the contestant had been scratched and 2 upon
which his name was erased and the name of the oontestee substi-
tuted ; this was done, the contestant charges, by R. E. L. Suodgrass,

ATKINSON VS. PENDLETON. 69

the deputy clerk, and he further charges that BeiijamiD Earnshaw, the
president of the county court, was privy to the fraud.

The returns and ballots from these precincts were delivered to the
deputy clerk (Snodgrass) in sealed packages as the law required. (Rec-
ord, 426.)

The seal was not broken until the packages were opened by the com-
missioners and the clerk, John C. McEldowney. (Record, 426.) During
the recount the ballots were in charge of the commissioners in the day-
time and then locked up in the vault of the clerk's office at night by a
combination lock. (Record, 427.) Surely this was all that could be ex-
pected to secure the ballots and put them beyond the reach of evil
hands.

It is charged, however, that the recount was continued from day to
day for a number of days with fraudulent intent, and that Benja-
min Earn sb aw, the president of the county court, absented himself to
protract the recount, and give an opportunity to R. E. L. Snodgrass,
the deputy clerk, to scratch and mutilate the ballots, and upon this
charge the contestant relies to impeach the recount.

It is charged that on the 21st day of November, 1888, and during
the recount, Charles E. Wells and W. W. Arnett, citizens of Marion
County, appeared at the county seat of Wetzel, and that Wells had an
interview with Earnshaw at dinner time ; that later in the day a tele-
gram was received by Earnshaw, sent by Wells, over the signature of a
party by the name of Black, stating his (Earnshaw's) wife was sick ;
that thereupon the recount was adjourned until the next day; that the
substance of the telegram was false and that Earnshaw knew it; and
that all this was evidence of a conspiracy to perpetrate a fraud, and
that it was successful.

Now, what does Earnshaw say (record, 944) ?

Q. 15. State, if you remember, how many days the county count was in session for
the purpose of canvassing the returns. A. 15. I can't say positively how many days,
but I believe we were here in all something like 18 days.

Q. 16. State whether or not during that session of the court you were absent ; and,
if so, how long ? A. 16. I was absent a time or two, but I don't remember how long I
was absent.

Q. 17. State if, duriug the session of the county court, you remember of havingseen
Charles E. Wells, of Marion County, here in New Martinsville ; and, if so, state, if you
know, what business he was here for. A. 17. I remember of seeing Charles E. Wells
during that term of court; I understood that he was here in regard to a suit pending
or to be instituted against L. G. Robinson.

Q. 18. State whether or not you had any business yourself of a public or private
nature with Charles E. Wells at that time ? A. 18. I had business of a private nature
with Charles E. Wells at that time.

Q. 19. State whether or not that business was in any way, directly or indirectly, im-
mediately or remotely, connected with the election held in this county on the 6th of No-
vember, 1888, or in any way pertained to or affected the interests of any candidate at
that election, and especially the interests of John O. Pendleton and G. W. Atkinson
or A. B. Flemming or Nathan Goff, who were candidates for office at said election ? A.
19. It had nothing to do ivith the election at all, and did not affect the interest of any can
didate.

Q. 20. State whether or not, on the day that C. E. Wells was here, or about that
time, you received a telegram purporting to be from Frank J. Black, summoning you
home; and if so, state, if you know, who sent that telegram. A. 20, I did receive a
telegram and knew that Charles E. Wells sent it.

Q. 21. State whether or not you left here after receiving that telegram. A. 21. I
did.

Q. 22. State whether or not, to your knowledge, that telegram was sent by C. E.
Wells for the purpose of interfering with the recount of the votes then in progress be-
fore the county court ? A. ~>2. No, sir ; not at all, further than it necessarily delayed the
recount : but it was not intended to interfere with the recount.

There was no attempt to contradict this statement or to impeach the
witness.

70 ATKINSON VS. PENDLETON.

He swears positively that his business with Wells was of a private
nature and had nothing whatever to do with the election, and that the
telegram was not intended to interfere with the recount, further than it
necessarily delayed it. If the contestant doubted the truthfulness of
Earnshaw's statement, it was his duty to summons Wells. This he did
not do.

There is no evidence Mrs. Earnshaw was not sick. She has been in
delicate health for years, and sometimes in very bad health. (Record,
363.)

One witness testified that she attended a party at his house, " he
thought" on the 22d November, but " would not be certain" (record,
363.)

We submit that there is nothing in the testimony in this case to im-
peach the integrity of Earnshaw and to stamp him as a man not only
unworthy of the honorable position he holds but as a malefactor almost
of the deepest dye.

We come now to the testimony in regard to Snodgrass, the deputy
clerk, and before presenting it we desire to say that the conduct of this
man after the recount was certainly not commendable. It seems
that he expressed a willingness to take money from the chairman of
the Republican State committee of West Virginia upon consideration
that " he would tell all he knew about the ballot-scratching," when he
swears he knew nothing and could not have told anything. He seems
to have regarded this as a pardonable device to obtain money from the
Eepublican party, if its chairman was " foolish" enough to pay it; but
this can be said in his behalf, that it he had been corrupt and vil-
lainous enough to "scratch" the ballots, as charged, he would have
been corrupt and venal enough to have made statements more direct,
which, though they might have been false, it seems would have secured
pecuniary benefit or bribe-money. In a word, money or positions were
ready for him if he would lay the " scratching " upon some person ; and
if he was bad enough to commit the fraud charged, he was bad enough,
for money or position, to make a false statement implicating some one
else. The evidence, however, shows conclusively, we think, that he could
not be led into any statement except that "he would tell all he knew; "
and this not being satisfactory to the chairman of the Republican State
executive committee, the negotiations ended.

This conduct upon the part of Snodgrass alone has induced the con-
testant to charge him with scratching the ballots, as he had access to
the clerk's office. At first, J. M. Mclutire, who seems to have had
charge of the Republican organization in Wetzel County, suspicioned a
man by the name of Null, whom he said was acting suspiciously in the
clerk's office one evening, but he found he was mistaken in the man, and
that "got him oft' his pins and he did not know what to say" (record,
937.) He then engaged a man by the name of Grail, against whom he
held a bond and to whom he promised $650 or $700, " enough to square
off" the bond and a position in Washington at $100 per month, for four
years, to gather information for him, and suggested that Suodgrass
" knew all about it." Grail went to Snodgrass and told him what
Mclntire had promised him, and Snodgrass told him to agree to tell all
he knew about it " and then swear you know nothing " and get the
money. Grail said he would not like to do that (record, 938). We give
the following as the further statement of Grail in his oiwn language:

He (Snodgrass) said I would if I could get a chance at them; I told him then I
could easily enough get them on to you by telling them I believe that you knew
something about it and that you would tell all you knew about it for a certain

ATKINSON VS. PENDLETON. 71

amount </. money; Lee said then, all right, you do that ; I went to Mclu tiro then
and told uim that I believed that Lee Snodgrass knew something about the ticket-
scratching and would tell all he knew for a certain sum of money ; then Mr. Mclntire
wanted to know how much I thought he wanted; I told him I did not know, but I
thought he would tell for about $2,000, or along there ; then Mclntire said that
is a little steep, and said you see him whether or not he would not do it for lesa
money ; I told him then I would ; he says, you see him and let me know and if we
can make it satisfactory, the amount, that he would draw up the writings and go up
to Wheeling and see Cowden ; I went and saw Lee the next day after this conver-
sation and told him what Mclntire told me ; and he toldme then that he would rather
talk to Mclntire himself so they would understand each other exactly ; after that I
saw Mclutire and told him what Lee had told me, and be says all right, you tell Lee
to come to my office this evening ; I told him I would see Lee and I did so.

Q. 11. When you told Mclntire that you thought Lee Snodgrass knew something
about the scratching of the ballots and would tell for a sum of money did you mean
to state what you believed to be true or what Lee had told you to state, as you have
said before? A. 11. I just told him because Lee had told me to tell him; I did not t
know it was true and did not think it was.

"Q. 11. What do you know, if anything, about such scratching of ballots as has
been mentioned? A. 11. I don't know anything.

Mclntire visited the clerk's office and had an interview with Snod-
grass, in which Mclntire promised Snodgrass that he should not be
prosecuted and "should have a Government position at Washington
that would pay at least $1,800 a year. Snodgrass replied he wanted no
Government position, but would tell all he knew about the ticket scratch-
ing for $3,000 in cash, and that he must have the money before he made
the affidavit. Mclntire then wanted Snodgrass to go to Wheeling to fix
the matter up, but Snodgrass declined. Mclntire then proposed to
Snodgrass to go to Sistersville, but Suodgrass again declined. Mclntire
then said he would go to Wheeling and see W. J. D. Cowden, the chairman
of the executive committee of the Republican party of West Virginia,
and get him to come to the county seat of Wetzel.

In a few days Mclntire saw Snodgrass and told him that Cowden
would be down the next evening. Cowden came and an interview was
arranged between him and Snodgrass. As to what took place at this
interview Cowden and Snodgrass differ. Cowden states that Snodgrass
said, "Well, to cut a long story short, I will tell all about it for
$3,000 cash ;" to which he replied, "I can not accept any such offer."
Snodgrass testifies that " Cowden said he could offer him no special
inducement to make a statement, further than that he wanted me to
understand that the Republican party had elected a President, also a
governor of the State, and that they would remember their friends, and
that they would be well provided for, and that when he said well pro-
vided for he meant amply provided for."

"Then he went on to explain the advantages of a life in Washington City, backed
up with a good Government position paying from $1,800 to $2,000 per year and not
much to do ; and he said he could not offer me any further inducement to make the
statement except that I would be exonerated from prosecution in case my statement
should implicate myself; and said that the reason why he could not offer any further
inducement, that it would go toward weakening my -evidence before a jury, and that
they wanted as strong a case as possible. I told him that as I was a Democrat I did
not care to hold a Government position under a Republican administration ; that I
did not care to live in Washington City ; but I told him, to cut the matter short, I
would tell all I knew about the ticket scratching for $3,000 in cash, and would make
an affidavit, but I must have the cash before the affidavit; also to have an agreement
in writing, signed in duplicate, he to retain one copy and me the other, setting out
what I was to do for the $3,000. Mr. Cowden said that my offer was for a large
amount of money, and a fixed sum, and if that fact was made known to a jury on the
trial of any indictment that might be found upon my statement it would tend to
weaken my evidence very much. Then I told Mr. Cowden that when I made my state-
ment that I would furnish evidence to prove that the statement I made was true.
Mr. Cowden said that he could not make me an offer of any fixed amount of money,
but would take the matter under consideration, and that 1 would hear from him again.

72 ATKINSON VS. PENDLETON.

Then I told Mr. Cowdeu that I would be compelled to leave. Mr. Cowdeu insisted on
me stayiug and have a longer talk. I told him that I had nothing more to say about
the matter, and that if he did not want the goods at the price he did not. have to take
them. Then it was understood all around between Cowdeu, Mclntire, Grail, and my-
self that nothing would be said about olir meeting. Then Mr. Cowden gave me to
understand that he would further consider my proposition, and that I would hear
from him soon. Then Mclntire, Grail, and myself left the room."

Snodgrass is corroborated by Grail, who was present, and testified as
follows :

Q. 15. Were you present at the Brast House at the time of the interview between.
R. E. L. Snodgrass and Mr. W. J. W. Cowden, chairman of the Republican State ex-
ecutive committee ? And if so, state how you came to be present and what occurred
between Mr. Cowden and Mr. Snodgrass ; stating as fully as you can what was said
by each aud who were present at that interview ? A. 15. 1 was present ; Mr. Snod-
grass told me that they had made arrangements for Cowden to be here on Monday
.evening ; I also heard the arrangements between Mclntire anil Suodgrassthat Cowden
was to be here on Monday evening ; I think it was Monday evening ; I am not certain ;
it was on the 31st day of December that he was here, and I camo down street and
met Mclntire. and he told me that Cowden was here, and he told me that Lee wanted
me to come down to the Brast House aud go to Cowden's room, and I went down and
Mclntire and Lee Snodgrass and myself went up into the room ; then Mclntire intro-
duced us to Cowdeu, and, after some conversation, it was either Mclntire or Cowden
said, "I suppose you gentlemen kuow what business you came here for," and Mr. Snod-
grass replied, " I suppose we do ;" then Mr. Cowden said, " We might as well come
down to business ; " says, " I understood that you, Snodgrass and Mclutire, had some
understanding about this matter; " he said, " Of course I can't make you no special
offers or inducements to get you to give this away, as we want your evidence as strong
as it can be made if it should go to any court," as near as I can remember.

Cowden said that he should be well taken care of if he should give it away ; that
he could get an office as clerk at Washington, that would pay him from $1,500 to
$2,000 per year, and he told him that it would be much nicer to live there than here,
and it would be much easier work. I can not remember word for word, but he said
the streets were so much nicer there, and everything surrounding, that he, Lee,
would like the city much better than he would here. Then Lee told Cowden it would
not be very pleasant for him to accept a position of that kind, that he was a Demo-
crat, and has been all his life. Cowden told him then that would not make any dif-
ference, that the Republican party would always take care of a good friend, and told
him further that they had the President elected now and had a majority in the Sen-
ate and Congress both I think that is what he said and that he would be sure of a
4 years' job and probably longer. Then Lee told him that he did not want any office,
that the only way he would tell what he knew would be for the money cash down.
Cowden told him he could not do that ; as he said before, they could not use his evi-
dence in court, as it would not have any effect, or words to that effect. Then Lee
told him he did not think they could come to any terms then, for that would be the
only way he would tell what he knew. Lee said he would tell for $3,000, after Cow-
den had asked what he would want. There was present Mclntire and myself and
Lee Snodgrass and Cowden.

Q. 16. After Snodgrass had stated what he would take what did Cowden then
say ? A. 16. He said that they could not give him any money, but he would insure
him that he would be well provided for, or something to that effect ; I guess that
was the remark he made.

Q. 17. When the interview ended was there anything said by any one about keep-
ing the matter secret ; and, if so, by whom ? A. 17. Yes, sir; Mr. Cowden said that
we would keep this meeting secret/and no one need know anything about it, or words
to that effect.

From all the testimony it appears that however censurable Snod-
grass's proposition may have been, he had the moral courage to resist
the strong temptation held out to him to perjure himself; that though
inducements of the strongest character were presented, he caine forth
from the interviews without perjury on his soul and without ill gotten
gains polluting his pocket. His perhaps unguarded remark and im-
mature proposition seem to have reached the ears of men who were as
willing to buy as he was to sell, but they were unwilling to pay unless
they got full value.

This is all there is in reference to Snodgrass, and we submit whether
a recount can be impeached by the foolish and even reprehensible con-

ATKINSON VS. PENDLETON. 73

duct of a party long after it lias been closed, simply because the party
had, in an official capacity, possible access to the ballots during the re-
count. Apart from this circumstance there is not the slightest testi-
mony which reflects in the most remote degree upon Snodgrass.

To hold that the contestee shall be deprived of the gain he made by
the recount, would be to hold that an act done is fraudulent because
some official connected with it and standing fair and unimpeached in
the community at the time was guilty of conduct demanding censure
at some period thereafter.

We believe the judges of the election at Martin's School-House and
Archer's Fork precincts in Wetzel County made mistakes in counting
the ballots, and that the recount subsequently made by the county com-
missioners was correct and truly represented the actual vote cast at
these precincts.

It only remains now for us to recapitulate our conclusions.

Statement 1.

Returned vote for contestee 19,261

Add votes tendered by duly qualified voters and rejected

19, 263
Deduct illegal votes shown by conclusive testimony to have been cast for him . 28

Whole vote for contestee 19,235

Returned vote for contestant 19, 242

Add votes tendered by duly qualified voters and rejected 2

19,244
Deduct illegal votes shown by conclusive testimony to have been cast for him . 54

Whole vote cast for contestant 19, 190

Whole vote for coutestee 19,235

Whole vote for contestant 19,190

Majority for contestee 45

This is the statement which we believe is based upon the law and
sound public policy.

Statement 2.

Returned vote for contestee 19,261

Add rejected votes 2

19,263

Deduct illegal votes in Statement 1 28

Deduct illegal votes where evidence shows only that the voters were
considered or reputed to be Democrats 14

Whole vote for contestee , 19,221

Returned vote for contestant 19,242

Add rejected votes _ 2

19,244

Deduct illegal votes in Statement 1 54

Deduct illegal votes where evidence shows only that the voters were con-
sidered or reputed to be Republicans... 20

19, 170

Whole vote for contestee 19,221

Whole vote for contestant 19,170

Majority for contestee. 51

74 ATKINSON VS. PENDLETON.

We make this statement for the consideration of the House in the
event it is thought that proof only that a voter was considered or re-
puted to be a Democrat or .Republican is sufficient to show how he voted.

Statement 3.

Majority for contestee under Statement 1 45

Deduct votes claimed by contestant at Martin's School-House and Archer's Fork.. 26

Majority for contestee 19

Majority for coutestee under Statement 2 51

Deduct votes claimed by contestant at Martin's School-House and Archer's Fork .. 26

Majority for contestee 25

This statement is presented to show that the contestee has a clear
majority of 19 or 25 even after deducting all that contestant claims at
Martin's School-House and Archer's Fork.

We are of the opinion that in any aspect of the case the coutestee was
duly elected, and we submit the following resolutions :

Resolved, That George W. Atkinson was not elected a Representative
in the Fifty-first Congress from the First Congressional district of West
Virginia, and is not entitled to a seat therein.

Resolved, That John O. Peudleton was duly elected a Representative
in the Fifty-first Congress from the First Congressional district of West
Virginia, and is entitled to his seat therein.

CHAS. O'FERRALL.
LEVI MAISH.
CHAELES F. CRISP.

JOS. H. OUTHWAITE.

L. W. MOORE.
E. P. C. WILSON.

L. P. FEATHEftSTON vs. W. H. GATE.

FIRST ARKANSAS.

Contestant charged conspiracy, violence, intimidation, and fraud.
The committee find frauds sufficient in amount to overturn tlie majority
returned for contestee and to show a majority for contestant. The
minority find the charges of fraud not sustained by the evidence, and
that part of the testimony, being taken without legal notice, should not
be considered. The case was called up March 1, 1890, and debated
until March 5, when the resolutions presented by the committee were
adopted by a vote of 145 to 135, and Mr. Featherston was sworn in.
The debate will be found of pages 1843 to 1955 of the Record.

(1) Return To be thrown out if false, but the votes cast not necessarily lost
Where the evidence shows a return to be false and not a true state-
ment of the votes cast, such return is impeached and destroyed as evi-
dence. But the rejection of a return does not necessarily leave the
votes actually cast at a precinct uncounted. (See ante, Atkinson
vs. Pendleton.) The return being shown to be false the parties are
thrown back on such evidence as it may be in their power to produce
to show how many votes were cast and for whom. All the votes may
thus be proved and counted, but if only a part is proved, those proved
are to be counted and the rest disregarded.

(2) Suppression of testimony.

Where one party suppresses testimony strict and technical proof will
not be required of the other.

(3) No .election.

Where no election is held votes can not be counted.

(4) Notice of contest.

The recitals in the notice can have none of the sanctity and binding
force of an agreement or stipulation, and can not be construed into a
concession.

(5) Testimony taken without notice. Question of notice may be waived.
When depositions are found in the printed record and no objection

is made to the Clerk of the House or to the opposite party, the party
failing to object at the earliest opportunity, or at least within reason-
able time so as to put the opposite party on notice, will be deemed to
have waived all question of notice, especially where there is no offer of
proof to show a different state of facts from that shown by the deposi-
tions objected to.

FEBRUARY 19, 1890. Mr. HOUK, from the Committee on Elections,
submitted the following report:

The Committee on Elections having had under consideration the con-
tested election case of L. P. Featherston vs. W. H. Gate, from the First
Congressional district of Arkansas, submit the following report:

This contest differs in one respect, at least, from all other cases of a
like character pending before the House of Representatives. The con-
tention for a seat in the House, of Representatives from the First Con-
gressional district of Arkansas is between Democrats, the contestant
having veered out of the party line so far as to have become the head
of an organization in that State known as "The Wheel," while the con-
testee continued to adhere to and was the candidate of what was known
as the regular Democracy. The contestee gives the following history
of the political conditions prevailing in that district prior to and about
the time of the election in November, 1888 :

A. Along in the year 1888 the Wheel became a factor in politics. It was supposed to
be a non-political organization, formed ostensibly for the promotion of agricultural in-
terests, and to down monopoly, and to throttle the giant corporations that were re-
puted to be fattening on the labor of the husbandman ; to smash the trusts, abolish
national banks, etc. all very commendable, doubtless, and most certainly a labor of
great magnitude, and sufficient to afford ample employment to the good Wheelers
without the additional task of regulating and purifying the politics of the country.

These doctrines of the Wheel were popular, and the organization grew and became a
power in the land, and thither turned their eager steps the Anarchist, the Communist,
the venerable Greenbacker, the political nondescript, sorehead, and bummer of every
creed and faith, and essayed to lead in the great reform. The rank and file were com-
posed largely of the farmers, mostly Democrats there being no doubt 10,000 of 22,000
Democrats in the district who were Wheelers and somewhat out of temper because
of the evils, real or supposed, then prevalent, and in a frame of mind to drift away
from the Democratic camp and set up for themselves in a great work of reform, as
they supposed.

The shrewd Republican leaders quickly took in the situation, and seeking to im-
prove what seemed to be any opportunity to beat the Democrats in one of their
strongholds, adroitly managed to have their emissarirs and agents initiated into the
lodge of the Wheelers, it being a secret organization.

It is needless to state that these were faithful and effective members, never failing
to attend at a meeting, and always overflowing with sympathy for the poor farmer
and brimful of a spirit of reform.

The candidate of the Wheelers, tho contestant herein, was president of the State
Wheel, which in itself gave him a powerful hold on the brethren, and it was reason-
ably thought he could hold the Wheelers solid for his cause, and then if the Repub-
licans could be brought to his aid this would certainly make a combination that
would overthrow the Democrats.

The scheme was not only shrewd and well-planned, but it was also comprehensive,
from the fact that it was doubtless made to embrace two districts the first and sec-
ond ; the agreement among the leaders being that the Republicans should support
the Wheel candidate in the first, and the Wheelers should support the Republican
candidate in the second.

78 FEATHERSTON VS. GATE.

Now, it must be said to the credit of the Republican loaders that they kept their
part of the compact religiously to the extent of their ability. So earnest indeed were
they, that ex-Governor Powell Clayton, the able and powerful leader in this State,
actually came into the first district to canvass for the Wheel candidate, with the ob-
ject of influencing the Republicans to support contestant and to reconcile, if possible,
a strong disaffected element. (Record, page 47.)

***>***

It was found necessary to give the Wheel candidate official indorsements by the
Republican party so as to control the voters to his support. Accordingly the district
committee waa called together, when it was found that a wide difference of opinion
existed among them. The more intelligent argued that as the Wheel candidate and
Democratic candidate had already made a canvass of the district and the lines were
sharply drawn and the fight so far almost entirely within the Democratic party,
it was an opportune time to run a straight Republican and capture the district.
After much discussion they adjourned to October 27, when they gave the Wheel man
an indorsement, etc.

We give the above quotation from contestee's brief for the purpose
of showing that there was great disaffection among the Democrats in
this district, and that all the other parties Wheelers, Greenbackers,
and Pepublicans were supporting the contestant, who had been a Demo-
crat and who was "in a frame of mind to drift away from the Demo-
cratic camp," and it may furnish a solution of why it was necessary for
the contestee, or his friends, to overcome this defection in the strong
Republican counties.

It is clearly established by the evidence that Crittenden County is
Republican, and for years has given large majorities for the Republican
party.

William Royster, in speaking of the number of Republicans in Crit-
tendeu County, testified :

Q. What proportion of that vote is the Republican vote? A. About 2,500 or
2,600. (Printed Record, page 191.)

On the same subject, Jordan Yates (col.), a witness on behalf of the
contestant, being first duly sworn, testified as follows :

Q. What is your name ? A. Jordan Yates.

Q. Where do you live ? A. Live in West Memphis, Crittenden County, Ark.

Q. How old are you ? A. I am about 42.

Q. How long have yon been in Arkansas ? A. Ever since 1865 ; Crittenden County.

Q. What is your business ? A. Farmer.

Q. You've had something to do with politics in your county ? A. Oh, yes, sir: I've
had a great deal to do with it.

Q. Do you hold any official position in your county ? A. I'm chairman of the county
central committee, and was also chairman of the county convention ; I'm chairman
now of the county central committee.

Q. Have you a pretty good idea of the number of voters, Republican voters, in your
county ? A. Yes, sir; I got a pretty good idea about the number of Republican vot-
ers in the county.

Q. What's your estimate ? A. Well, sir, I think there's about 2,500; that's pretty
close. I think it's close on to 2.500. (Printed record, page 192.)

On the same subject J. L. Fleming testified :

Q. Do you know whether, if there was a correct count of the actual vote in Critten-
den County whether the Republican party or Democratic party would carry the
county? A. Well, sir, if they had a correct vote, the two parties, Critteuden County
is Republican by 1,800 majority ; that's what I think. (Printed record, page 195.)

Wash. Deaver, on this subject, testified :

Q. Did the colored people over there take any interest in the national election ?
A. Yes, sir; biggest vote was polled in that county in the national election ever I
knowed, and I been there ever since the surrender.

Q. What was the vote of that county in the national election; do you know ? A.
I don't know exactly.

Q. Have yon any idea ? A. I think it. was about 2,500.

Q. Who was that vote polled for T A. Harrison and Featherston.

FEATHERSTON VS. GATE. 79

Q. Why were the colored people of that county especially anxious for a Rep. ad-
ministration of national affairs? A. Well, sir, it was on the account of they had
been pressed by this Winchester crowd this last year, and hoped to get some relief
from that element. I knew years before that in the Presidential election they hardly
ever paid any attention to it, scarcely polled any votes there in the county.

Q. What do you mean by being pressed ? A. No, sir ; not a fair show before the
law, and the ballots never were counted ; they had no show at all. The Winchester
crowd just bulldozed and done as they pleased, and if they had a mayor to try him,
if he was on their side they'd turn him loose, no matter what his crime was, and the
other party was put in jail and prosecuted every way they could.

Q. Do you think the Rep. party of Ark. expects the national Rep. party to remedy
that state of affairs ? A. That's what they think.

Q. Was it in that hope to turn out and poll such a large vote for the national
ticket ? A. Yes, sir.

Q. It they had received a fair count, about how much' plurality would they have
received ? A. About 2 thousand. (Printed record, page 224).

E. D. Sanders, on tbe same subject, testified as follows :

Q. What proportion of the vote in the county of Crittenden do you presume was
polled for Harrison and Featherston ? A. I think there was twenty-five hundred
votes ; I made an estimate of i t myself.

Q. What was the proportion ? About six to one.

Q. Did Featherston receive any other votes in the county of Crittenden in addition
to those polled for Harrison ? A. Yes, sir.

Q. Of your certain knowledge? A. Of my certain knowledge.

Q. In your own precinct wfeat was the vote ; were you at the polls yourself? A.
Yes, sir ; I was at the Bradley precinct. I think Featherston was 195 ; Cate was 4.

Q. In the county precincts is that a fair proportion of the Democratic and Repub-
lican vote in Crittenden County ? A. Well, that one wouldn't hardly be. There's
two or three, Black Oak and Marion and Crawfordsville, I expect there is a little
varied.

Q. I say the country precincts. A. Yes, I reckon it would ; that would be a fair
sample.

Q. The falling off of your vote on account of its being a rainy day at your precinct,
do you recollect what it was what per cent.? A, The falling off was 5 per cent,

Q. Was the interest manifested in the national election about equal all over the
county ? A. Yes, sir ; well, I took really more interest myself in it than I did in the
State election.

Q. And had the interest pretty generally infused all over the county 1 A. Yes, sir.
(Printed record, page 200. )

David Furgeson, on the same subject, testified :

Q. The Republican vote in that county was about what, in round numbers ? A.
About 2,500.

Q. Their Democratic vote was about what ? A. About 420. (Printed record, page
206.)

It appears from the record that prior to July, 1888, the county court
clerk and one other officer of this county had been indicted for drunk-
enness possibly under the following statute of Arkansas :

SEC. 561. When the circuit court shall be satisfied, from its own knowledge, or
from the information of others, on oath, that the clerk of such court has been guilty
of any misdemeanor in office, or shall be incapable of discharging the duties of his
office according to law, or shall be a drunkard, such court shall give notice thereof to
the prosecuting attorney, stating the charges against such clerk, and requiring him
to prosecute the same, and such clerk may be suspended from office until a trial can
be had, etc. (Mansfield's Digest of Arkansas.)

SEC. 6475. Whenever any presentment of indictment be filed in any circuit court
of this State against any county officer for incompetency, corruption, gross im-
morality, criminal conduct, etc., such circuit court shall immediately order that such
officer be suspended from his office until such' presentment or indictment shall be
tried, etc. (Mansfield's Digest of Arkansas.)

Why the indicted officers were not suspended in compliance with
these statutes, after having been indicted, is not susceptible of expla-
nation, except upon the assumption that the judge of the circuit court
did not think the indictment could be sustained, and was therefore un-
willing to allow the law to be used as any part of a scheme in political

80 FEATHERSTON VS. CATE.

manipulations. Upon the indictment found against them these officers
were to have been tried on the 12th day of July, 1888, the court being
then in session.

On that morning something like 100 men appeared at the court-
house town armed with Winchester rifles. None of the rifles seems to
have been seen by any, except those in the plot previous to that day.

These men, thus armed with Winchester rifles, proceeded to take into
custody and torce all the county officers, save the sheriff, who was of
the " Wmehester-rifle crowd," to leave the county under threat of
death if they returned.

It appears from the record that this armed force conducted these
officers and others across the Mississippi River and left them in the city
of Memphis, Tenn. Had they simply exiled the officers indicted for
drunkenness, their conduct would have shown they had lost confidence
in the court, or that they did not believe the indictments could be sus-
tained.

It seems to us that if they were simply dissatisfied with the officers
who had been indicted they would not have driven other county officers,
who were not indicted, nor private citizens from the county.

The motive for what thus took place by this process of deportation
on the 12th day of July, 1888, must be sought in something other than
a desire to rid the community of the indicted officers. We are of the
opinion that this motive may be found, and for that purpose reproduce
a portion of the testimony appearing in the printed record, stating
what was done on the morning the trial was to have taken place.

David Fergerson (col.), a witness on behalf of the contestant, being
first duly sworn, testified as follows :

Direct examine :

Q. What is your name ? A. David Fergeraon.

Q. Where do yon live f A. Live now in Memphis.

Q. Where did you live at the national election last year ? A. Memphis, Tennessee.

Q. W T here did you live previous to that ? A. Lived in Crittenden County, Arkansas.

Q. What was your business at the time you left Crittenden County, Ark. I A. I
was clerk of the circuit court.

Q. How old are you ? A. 39 years old.

Q. How long have you been a citizen of Crittenden County ? A. Since 1872.

Q. You served how many times as clerk ? A. Three terms.

Q. Please state the time and manner of your leaving Crittenden County. A. On
the morning of the 12th day of July an armed mob, composed of over a hundred men,
surrounded my office ; I was in my office, and my deputy, Mr. Fleming, here. The
mob ordered us to come out, and told us that some of the white people had got anony-
mous letters ordering them to leave the county, and they had determined among
themselves they shouldn't leave ; that we had to leave or they hoped to meet us in
heaven. I told them that I had nothing to do with writing thoe letters ; didn't
know anything about them, and I couldn't go. They said we ''had to go ; if you
don't we are not responsible for you." The court was in session, Judge Riddick on
the bench, the grand jury there, and I told this armed mob that " if we had com-
mitted a. crime, here's the grand jury and the court ; indict us, put us in jail, and try
us." "No ; you've got to leave this county ; this is a white man's government, and
we are tired of negro dominations ; we have been planning this for the last two years,
and no more negroes or Republicans shall hold office in this county."

Q. Did you leave them of your own accord ? A. I told them I couldn't possibly
leave; I had a bond there, and had to protect my bondsmen as well as myself, and
Col. Smith and Dr. Bingham spoke up and said, yes, we'll have to give him till even-
ing to get out ; I saw my bondsmen ; they were all there with the guns in their
hands ; I saw them and talked with them, and that evening I left.

Q. Were your bondsmen white or colored men ? A. They were composed of white
and colored ; the white men that was on my bond was there armed.

Q. State whether there had been any charges preferred in court against you ? A.
I had a charge preferred against me there for drunkenness in office, come up for trial
that morning ; they found there was nothing in it and took these steps to get us out ;
said they had to control the offices, and only way to control the offices was to get us
out by getting the leaders out they could control the balauce.

FEATHEESTON VS. CATE. 81

Q. Had you ever had any personal trouble with any considerable number of white
people? A. I never did; in 1886 I was elected without opposition as clerk of the
court.

Q. How many charges have been preferred against you since that time ? A. Been
11 charges.

Q. Upon how many have you been tried ? A. Haven't been tried on one ; I took a
change of venue from that county, because I couldn't get justice there, to another
county in the district.

Q. State if the bond you made was accepted by the sheriff. A. The bond that I
offered was refused by the sheriff, and I had to carry my bondsmen into open court,
and the bond was approved by the judge.

Q. After having been refused by the sheriff? A. Yes, sir.

Q. Were any of the present officials, or the officials that were in office at that time,
among that mob ? A. Yes, sir ; W. F. Worner, sheriff, Sam Keel, clerk, S. A. Martin,
county judge, W. J. Harden, assessor, C. E. Easpberry, coroner, A. H. Ferguson,
treasurer.

Q. Was Worner the sheriff at that time? A. Worner was sheriff at that time; 12
day of July, and is now present sheriff.

Q. Did he show any right or warrant or authority by which he ordered you out of

the county ? A. He did not.

*##*#*

Q. What reason did they give you for not giving you a trial, when you asked it, upon
the day that they ordered you out of the county ; what reason did they assign to you
for that action ?> A. There was no reason ; they said, " God damn you, you got to get
out of this county. By God, you been here too long ; this is a white man's country,
and we will control it. We been waiting for two years for thisthing, and you got to get
out." I said, " Gentlemen, the court is in session and here's the grand jury." They
said, " God damn that, you got to get out."

Q. The circuit court was in session? A. Yes. sir.

Q. Was there any effort made by the circuit judge for the protection of citizens of
the county that you know of? A. None in the least.

Q. Did he know this thing was going on ? A. To the best of my knowledge and
information and belief, he did.

Q. He was not present at the time, was he ? A. While they had us under arrest
the capt. of the mob said, " The judge wants you to come up to the court-house and
we don't want him to see us here with these men ; just carry them around back of
the court-house, right under a shade tree." The judge come up there and called
court and took a recess, and I saw him standing in the back door of the court-house
looking over there where these men were guarding myself and others.

Q. Are you satisfied that he saw you ? A. Yes, sir.

Q. Did you hear him enter any protest against that proceeding? A. No, sir; I
did not. The only thing I knowed him to do I was indicted, as I told you before
Judge Gate and Mr. Adams, my attorneys, they come down to my house to see me,
and said that Judge Eiddick, if I thought it necessary, said he would get out a writ
of habeas corpus for me. I told him no ; I didn't think it necessary, because-I wasn't
under legal authoiity ; that his court had no jurisdiction over an armed mob. I
paid Judge Cate and Mr. Adams to defend me in that indictment against me.

Q. Did he abandon your case? A. No, sir, he did not ; told .me he'd stick by me if
I wanted to go any further in the case, but he advised me I'd better let it drop.
(Printed record, page 207-8.)

The county court clerk, Furgerson, it will be seen closes his testi-
mony by saying that contestee as his counsel advised him (Furgerson)
that he " had better let it [the suit] drop." There was no way to "let it
drop" except by pleading "guilty," and that would oust him from his
office, which was one of the objects, no doubt, from the proof in the
record, for which the conspiracy had been formed.

If the contestee had nothing to do with what transpired in Crittenden
County, in July, his presence and utterances there have placed him in
rather an embarrassing position. His advice to Furgerson has a sig-
nificant bearing.

J. L. Fleming (col.), a witness on behalf of the contestant, being first
duly sworn, testified as follows :

Q. What is your name? A. J. L. Fleming.

Q. What is your residence ? A. I am a resident of Memphis, Tennessee.
Q. What were you at that time ? A. Eesident of Marion, Crittenden County, Ar-
kansas.

H. Mis. 137 6

82 FEATHERSTON VS. GATE.

Q. What is your occupation? A. I was deputy clerk under Mr. Ferguson, and
editor of the Marion Head Light.

Q. What is your age ? A. 29.

Q. How long have you lived in Marion, Ark.? A. About four years.

Q. Did you have to leave Marion, Ark., Crittenden County, any time last year?
A. Yes, sir; on the 12 day of July, 1888, myself and ten others were brought from
Marion to Mound City by an armed mob, and put on the ferry-boat at Mound City
:iud sent over to Memphis, and guarded to Memphis ; three of the men came on this
side.

Q. How many men were in that mob ? A. I don't know ; probably a hundred or
more ; more or less.

Q. Whut were their reasons for sending you out of the county I A. Well, they
claimed lhat several of the white citizens had received anonymous letters saying
1 h:it t hey had to leave Crittenden County within five days from the time those letters
were received.

Q. Do you know anything about those letters at all ? A. Yes, sir; I know some of
the citizens did receive such letters.

Q. Do you know who wrote them? A. I do not ; I didn't write any of them, and
knew nothing of them directly or indirectly.

Q. You say you were editor of a newspaper? A. Yes, sir.

Q. What were, the politics of that paper? A. It was a Republican paper.

Q. Did you suffer any loss of property, time, or money in this exile? A. Yes, sir; I
sunered right bmart loss of money ; had some property damaged.

Q. Go on and tell about the threats that were made. A. Well, yon asked a ques-
tion awile ago ; didn't finish about why we were sent away ; they said these letters
had been written by us, myself, Ferguson, Dan Louis, and others ; said we were im-
plicated, and for that reason they came and exiled us from the county.

Q. Were there any threats made towards you ? A. Yes, sir ; when they brought us
away they said wo were never to come back to that county any more, and if we did
it would be dangerous ; they meant, from what they said, they would kill us ; that
was the inference ; never to return TO Crittenden County any more.

Q. You say you have left Crittenden County? A. Yes, sir.

Q. Why did you leave ? A. I left because they sent me away, and said I never
should live there any more ; and all of my business had been suspended there ; and
I had nothing to do there ; that's one reason I have, and then, again, I don't feel
safe in living there any more.

Q. You think your life is more or less in danger if you lived in Crittenden County
now ? A. Yes, sir ; I think some of those men there would, under some circumstances,
attempt to assassinate me.

Q. Do you know whether the Republican party of Crittenden County, or Democrats,
as a rule, were intimidated by the armed men in the last election there the last na-
tional election? A. Yes. sir; at the election in September, the State election, they
were directly under the influence of that shotgun crowd Winchester crowd; and!
believe the same influence was brought to bear at the national election, though it
may not have been as forcible as at the State election ; but I believe the Republicans,
the colored people, were under that same influence, and they wouldn't vote as freely
as they had done heretofore.

* # _ * *

Q. You say you were exiled from Crittenden County last July? A. Yes, sir; on
the 12 day of last July.

Q. Did they accuse you of anything else, or any of your companions in exile, of any
crime? A. They had never accused me of anything; they had -Mr. Ferguson and
Judge Louis ; they had been indicted before that ; they had been indicted for intox-
ication in office ; that was all against them. Myself they had never accused of any-
thing never had been convicted of any sort of crime, felony, or misdemeanor either;
never have been indicted except for these anonymous letters, and never had any trial
of any sort, either criminal or civil, in that county. (Printed record, page 195.)

Why they drove the Republicans out of the county.

William Eoyster (col.j, a witness on behalf of the contestant, being
first duly sworn, testified as follows :

Q. What is your name ? A. William Royster.
Q. Where do you live? A. Live in Memphis now, sir.

Q. Where have you lived before you came to Memphis? A. In Arkansas, Critten-
den County, Marion, Ark.

Q. When did yon come to Memphis ? A. Come here in September.
Q. In what year? A. 1888.

FEATHERSTON VS. GATE. 83

Q. How long had you lived iu Arkansas before that ? A. About 14 years ago on
the 15th.

Q. How old are you ? A. I reckon I'm about 39 or 40 years old now, sir.

Q. What is your business ? A. I used to drive the stage there till the Kansas City
road catiie through, and after that I followed up renting out horses and buggies, and
farming there.

Q. Did you have a home there at the time you left? A. I did.

Q. Have any other property iu the county ? A. Yes, sir ; I had 160 acres of land.

Q. Why did you leave at the time you did ? A. I voted the second or third of Sep-
tember, and during that dny they come to me four or five different times to get Re-
publican tickets and I wouldn't let them have it ; and lhat night they gave me my
orders to leave in. ten days. Mr. Force came that night and gave me orders to leave ;
he come tome setting on the porch in front of my house ; he said he had orders to do
so ; I asked him orders for what ; he said, "Orders to wind up your business and leave
the county." I asked what had I did; he said all I could against the white people.
I said I hadn't done anything against the white people more than voted and issued
the Republican ticket. He said, " Well, you got to leave or we'll kill you 'cept heaven
and earth come together ; " I said, " I ain't able to go." He said I could do as I damn
please, stay or go ; but I'd find out by waiting. I staid there till the next Monday
night ; the next Sunday night he shot at one of the neighbors ; and Monday morning
Joe Randolph was down there cleaning his horses, and he asked him how was it ;
and he said them that shot at him know who it were, and he said he had been to
Royster and told him to leave ; I told him what the consequence was and he had to
go to Dr. Binghain and ask him, and Dr. Biugham was iu the midst of 30 or 40 when
the plot was made ; and if he don't leave we will kill him 'cept heaven and earth
come together. I left then ; I hurried and got my clothes on ; that Avas betwixt 12
and 1 o'clock. The train had got there before I got to the depot, and I left on my
crutches and stick, and I went North and stayed there three or four days ; and
when I thought things had gotten quiet so I could come through the lines, I come
here to Memphis.

Q. Do you know what political party Frank Force belongs to ? A. Democrats.

Q. Was the hostile demonstrations over there universal toward the colored peo-
ple? A. Yes, sir.

Q. In what way ? A. Using Winchesters and threatening them, and pretty well in
every respect.

Q. Did many of them leave there in consequence of it * A. No more than they run
out of the county as I know of.

Q. Did you suffer loss in regard to your property by leaving there? A. Yes, sir;
after I left they killed one of my mules. I was offered $400 for the pair time and
again ; and they shot my bay more so it couldn't get about, and my house and things
has all gone to destruction. I can't hear of any of them at all since I been away.

Q. Are you afraid to return there now ? A. Yes, sir.

**#*

Q. What act had you committed that caused Mr. Forest, as the representative of
this organization, to threaten to kill you if you didn't leave the county ? A. That
day at my house, of course I lived next to the court-house, I issued tickets that day.
I were acquainted with the people all, you know, and generally they trusted me with
the tickets ; Republican tickets at the State and county elections, and I issued tickets
that day, and I suppose betwixt 8 and 9 o'clock along came a young fellow, Ben
Novel, and asked me for a ticket. I says, " You know you ain't going to vote this
ticket ; you want me to give it to you. I ain't got any to spare." About five min-
utes from that Mr. Cox come ; I told him I ain't got tickets to spare. " Well, my
wife wants to see one." "Well, I ain't got tickets to spare; I ain't got tickets for

it now," and Mr. Cox came back after dinner, again, for a ticket and I wouldn't lot
him have it, and about an hour after that Jim Loyd wanted one for Mr. Kelley to
see, and I said, "I ain't got no tickets for Mr. Kelley now ; need .them for the men,"
and he went off and made a great bluster, and I kept the tickets till about half an
hour before the election, and he come back for a ticket, and I wouldn't let him have
it, and he said, "By God, you'll remember it," and that night Mr. Forest come and
gave me my orders to leave.

Q. If you were in Crittenden County would you give this testimony you are giving
here now? A. No, sir; I wouldn't do it.

Q. Why not ? A. I'd be afraid.

Q. Afraid of what? A. Afraid I'd get shot.

Q. Do you think the other witnesses would come up and testify as they have done
in this investigation? A. No, sir; they would be afraid of the Winchesters.

Q. Who has got possession of the Winchesters ? A. The Democratic party's got
possession of them. (Printed record, page 189-90.)

84 FEATHERSTON VS. CATE.

Henry Biby (col.), a witness on behalf of contestant, being first duly
sworn, deposes as follows :

Q. What is your name ? A. Henry Biby.

Q. How old are you ?- A. About. 26.

Q. Where do you live ? A. Been living in Marion all my life, i the county of
Crittenden.

Q. What State ? A. Ark.

Q. What is your business ? A. Well, for the last year I was deputy assessor for 4
years.

Q. How long since you left ? A. Been away since the 12th of July.

Q. Why did you leave ? A. I was at home making a recapitulation of assessments
I had made on Thursday morning : 16 men come up and asked me where was Sky-
more ; I told them I didn't know ; Mr. Jim Bassett said then, " It's a damn lie, I did
know," and said, " You come out, this country's getting too small for you edicated
niggers and we white folks," and went on to Marion, and as we passed the she lifFa
office they had a man named Dock Pointers, and the sheriff said, " Turn him loose,"
and they taken us, and they taken us on and under the shade tree; they searched ns,
and about 10 o'clock they marched us off a mile down the Milder road toward Mound
City, and a wagon overtaken us, and they put us in and carried us to Mound City ;
there we got. out and came aboard of the boat, and '9 of them got on the boat with
Winchesters and horses, and when the boat landed at Hope Field I got off and 3 fol-
lowed us to the foot of Jefferson street, and then told us, "Now you can go, you never
have been escorted by a lot of white gentlemen before in your life, its quite a compli-
ment to you, and unhurt, but if you ever come back to Ark. you must abide by the
consequences."

Q. What position were you holding at that time? A. Deputy assessor, under
Rucks, appointed by the county judge.

Q. Had you violated the law in any way ? No, sir ; I had been to the upper end of
the county a day or two previous to that, and came home on summons by the circuit
court as a witness in the case of Billy Shelton ; that's why I was there at court at
that time.

Q. What reason did these armed men give why they exiled you from the State ?
A. At that time they said I was a very prominent negro in society, business, either
belonged to several different societies, and afterwards they accused me of being a con-
spirator.

Q. Did you belong to some societies? A. Yes, sir; the Knights of Labor and Ma-
sonic.

Q. Did they teach you to violate the law in any way ? A. No, sir ; we never met
and discnsssed religious matters or matters concerning the civil laws.

Q. Did they teach you to rob and steal and insult the white people of the country ?
A. No, sir ; teaches us a better grade than that.

Q. You were a member of the Knights of Labor ? A. Yes, sir.

Q. And are there some white people members of the Knights of Labor, too? A. I
suppose there are. A white gentleman, Mr. V. A. Miller, set us up, from Paragould.

Q. Do yon know who Mr. C. A. Miller was ? A. Organizer of the Knights of Labor
and school-teacher at Paragould.

Q. Do you know how he stood at Paragould? A. Mr. William Stranges said he
was a very intelligent man, very high in the community in which ho lived.

Q. Was there any reason at any time why any member of the Knights of Labor, a
white man, couldn't have come into your lodge at any lime as a visiting member? A.
No, sir; while Mr. Stranges resided in Marion he very frequently visiie.d whenever we
met, and others, and the night that we were set up a goo;l many of the. prominent
white citizens of Marion came down to our hall to listen to the instructions of Mr.
Miller, and said they didn't see nothing in it why it shouldn't be set up.

*******

Q: How many were sent away from there at the same time you were? A. Nine
outside of myself.

Q. Do you know what charges were brought against these 9? A. No more than
they were accused of being accessories, and some have been ones that is writing these
anonymous letters.

Q. Do you know who wrote those anonymous letters? A. No, sir; I do not.

Q. Had you or your friends ever heard of these anonymous letters until you were
accused of having written them? A. No, sir; not before Tuesday at 12 o'clock; the
mail was distributed ; the sheriff and other citizens got letters, and I heard some of
them say some of the white citizens had gotten warning letters to leave the county
in 5 days: well, it was a very serious charge, and a good many prominent colored
men at once, thought that it was expedient that they would draw up a resolution or
something offering to the judge ou Wednesday that he would instruct the grand jury
to investigate the matter and punish the guilty ones ; and Judge Lewis, he presented

FEATHEESTON VS. GATE. g5

the petition ; the judge highly complimented it ; thought everything was all right,
the court adjourned that evening : they all met in the court-house and Thursday
about daylight about 125, more or less, armed with Winchesters, came to Marion, and
about 9 o'clock they came to my house ; I live in the suburbs with my mother ; a
place she's bought there.

Q. Did you know the men that had those Winchester rifles? A. Pretty well all of
them at that time, but since I've been here I've forgotten a great deal, but the prom-
inent one of them I know.

Q. Yon saw these men with the Winchester rifles? A. Yes, sir; I seen them ; and
I can name them that come over to Memphis with me ; I've got a list of all of them
where I'm stopping at.

Q. When they came to you did they claim to represent any legal authority ; did
they present any papers showing any authority for that sort of matter ? A. No. sir.

Q. Did they claim to be acting as militia? A. No, sir.

Q. What was it that made you go ? A. I didn't know what was the matter.

Q. Under those circumstances why did you leave the county t A. The reason why
I lr ft the county was because I saw that I had no protection, and that if I stayed
there there was two chances to one that I might be killed ; then they ordered me to
leave. The sheriff was in the crowd and told them to take me on, that I was one of
them, and he went on back in his office then. So then, on the second Monday in Feb.
I went over there for trial, and Tuesday it was I went for trial; Jan. it was, and I
gave $250 bond and went for trial, and the prosecuting attorney continued my case,
and the evening he continued Col. J. F. Smith was sitting in front of me, and he turned
back and whispered, "Henry, I think its best for you to get on the train and leave
here, because some of these mischievous white boys, or some one may whip around
and hurt you ; " and under his advice I taken the first train coming for Memphis and
been here ever since.

Q. Who was it gave you that advice? A. Col. J. F. Smith.

Q. Have you since gone back and been tried? A. No, sir; it was continued till
July.

Q. You haven't yet been tried ? A. No, sir.

Q. Had you at any time had any special trouble with any number of the white
citizens over there? A. No, sir; some of them that morning prevailed that I should
stay, and some said I was a quite peaceable boy, and others says, no, he must go
just so.

Q. Have you ever had any principal difficulty with any of the white people ? A.
No, sir ; I was raised there among them, and never did have any difficulty with any
of them.

Q. Had you considered them your friends iu a business way ? A. Yes, sir; I gave
them the houo'r that was due them.

Wash. Dever (col.), a witness on behalf of the contestant, being first
duly sworn, deposes as follows :

Q. What is your name ? A. Wash. Derver.

Q. Where do you live ? A. I live here now ; I used to live in Crittenden County,
Marion.

Q. What State ? A. State Ark.

Q. How old are you ? A. 36.
. Q. How long had you lived there before you left ? A. About 25 years.

Q. When did you leave ? A. On the 12th day of July, '88.

Q. Did you leave of your own accord? A. No, sir.

Q. Why did you leave ? A. I was told by the sheriff to leave there ; if I didn't I'de
be killed on the 12th morning of July.

Q. Had you committed any crime? A. Nothing at all, sir.

Q. Did you leave ? A. Yes, sir.

Q. Yon say the sheriff told you if you didn't leave there you would be killed ? A.
Yes, sir; he told me that morning that he found my name to one of the notices written
to the white people that they'd have to leave there in 5 days, and if I didn't leave
that morning I would be killed.

Q. Did you leave by yourself ? A. No, sir; me and F. T. Moore left in company
together.

Q. Did you see any armed men over there at that time? A. Yes sir.

Q. Whereabouts were they ? A. They were in the court-house yard; there was a
big crowd in the court-house yard, and then Dr. Barton and Dr. Bingham went to
my house, looking for me, with their Winchester rifles.

Q. How many was in the crowd in the court-house yard? A. It seemed tome
theje was 75 or 100 men ; all was armed ; all had Winchesters, except Chase ; he had
a double-barrel shotgun.

Q. What was the object of that meeting ; do you know ? A. No more than what

86 FEATHEPSTON VS. GATE.

they done; they went in there and marched ont ^ergason and Fleming and Ramsey
and Hunt and Fergason again : that was what I saw ; and stood them up side of the
court-house and searched them.

Q. Then what did they do ? A. Then marched them from there to the mayor's
house, north of the court-house, and set them under trees, and I saw them running
around looking for me, and I went off, and went down in a field I was cultivating
down there.

Q. Were you frightened ? A. Yes, sir ; and that time I was pretty badly fright-
ened.

Q. Did they make these other men leave the county ? A. Yes, sir; made them all
leave.

Q. Were they men of family ? A. Yes, sir ; most all of them.

Q. Did they have anv property there ? A. Yes, sir ; all, except some few.

Q. Did they have any crops ? A. Yes, sir.

Q. Were the crops injured on account of their leaving? A. Yes, sir; all destroyed.

Q. Did you have any property there T A. Yes, sir.

Q. Was it destroyed ? A. Yes. sir.

Q. You say you are living here now * A. Yes, sir.

Q. Are you still afraid to return ? A. Yes, sir.

Q. Do you think if you returned your life would he in danger ? A. Yes, sir ; they
told me that several times.

Q. Are the others exiled with you still living here ? A. Yes, sir ; afraid to go back.
I don't know any that has gone back, except Dan. Lewis; he goes over there occa-
sionally.

Q. Have you ever been convicted of any infamous offense before the law ? A. No,
sir.

Q. Ever been accused of anything before the law previous to that ? A. No, sir.

Q. Have you a family? A. Yes, sir; wife and six children; my wife is laying very
low now. I had a lot and a nice orchard there, and my trees is all being destroyed
nearly ; I had about 90 acres in cultivation that I was running, and I had some hogs
and cows and house furniture, and everything, it was all destroyed.

Q. Was the property of these other men destroyed * A. Well, it's been injured;
pretty well all destroyed ; no good. .

Q. Do you belong to any secret societies ? A. Yes, sir.

Q. What are they? A. I belong to the Masonic order and the Knights of Labor.

Q. Do you think that the people who made you leave feared anything from your
hands as to their lives or property at the time you left? A. I know they didn't ; no,
sir. I lived there over 25 years with them, perfectly peaceable; never had no diffi-
culty with them at all.

Q. Why did they make you leave if they didn't fear anything? A. "I only think it
was a political movement; they wanted to take all the offices there was in the
county.

Q. Were any men in this crowd that made you leave were any of them officials ;it
that time holding office there ? A. Yes, sir ; the sheriff was an official ; Dr. Bingham
was nothing but a Dr. and Dr. Barton was a Dr., and Martin was judge, and I think
that's about all.

Q. You say that you think that your exile from there was political ? A. Yes, sir.

Q. What political party do you belong to ? A. Republican party.

Q. When they ordered you out of the county, did they mention by what authority
they did it ? A. No, sir; all the sheriff said to me, we find your name to one of those
notices, and you must leave here to-day, don't, you'll be killed. And I asked him at
that time why he wanted to drive me out of the county ; I said the court's in session
here, and if 1 violated the law or wrote any notices, why don't you try me to-duy.
He says, "Well, we are going to take the law in our hands to-day." That's what
the sheriff said. In a few moments 1 went over home, and at home I saw them all go
into the clerk's office, and I started to the clerk's office, and I taken another notion
and went to the north part of the court-house, when I went back of the court-house,
I went around that way, and they went to my house looking for me, and I just come
right on around and went across the R. R. here into my field ; I stayed across the R.
R. till I saw them march all these men ont, then I went in the field and they come
on down there hunting me, and I stayed there that morning till 1 o'clock, and they
rambled over my corn and cotton, everywhere, took it row by row, and stayed thi-re
till 3 o'clock in the morning, and when the 3 o'clock train came along I pitched out
for Memphis.

Q. You say they claim your name was to one of those letters? A. Yes, sir ; and I
asked Col. Smith that morning to let me see the letter ; he said he didn't have it,
Mosby had it; and I asked him to let me see it, and he claimed that Berry had it, so
I never did get to see it.

Q. They never did show you the letter they claimed you wrote ? A. Never did.
(Printed record, page 224.)

FEATHEESTON VS. GATE. 87

David Furgeson, in speaking of the condition of the county prior to
the 12th of July, 1888, testified :

Q. Had the Republicans, while in authority, shown at any time a disposition to
treat the white people, or the Democrats in this way, unfairly, as they believe that
they are now being treated ? A. No, sir ; on the contrary, we always divided all
offices with them.

**###**

Q. How many of the offices had the Republicans, prior to that time, accorded the
Democrats? A. They had accorded the Democrats the sheriff, treasurer, and sur-
veyor, county officers.

Q. You had what is generally known in Arkansas as a fusion ticket ? A. Yes, sir.

Q. Your vote was about five to one, was it? A. About six to one.

Q. Had you seen fit to have exacted all the offices with all of the machinery in
your hands at that time, would it have been possible for the white people or the Dem-
ocrats to have had a single office in the county? A. It would have been impossible
for them to have had a single office in the county ; if we had exacted all the offices,
we could have elected every man in that county.

Q. How long had this harmonious feeling, represented by the fusion ticket, existed
between the Democrats and the Republicans of that county ? A. Ever since 1880.

Q. For 8 years ? A. Yes, sir.,

Q. Then I would like for you to state what seemed to be the desire of the leaders
of this mob so far as future arrangements for the offices were concerned ? A. Only
desire of the mob was, and the only intention was, to get control of the county so
they could occupy and fill the offices.

Q. With what proportion of votes did they desire to make this control? A. About
one to six. (Printed record, page '208-9.)

George Hendley, in speaking of the demands of the negroes, testi-
fied:

Q. What do the negroes ask of the Democratic party in the way of elections ? A.
Only ask for fair elections, and the enforcement of justice and law. (Printed record,
page 188.)

E. D. Sanders, in speaking of why the Bepublican officials were
driven out, testified :

Q. How, then, do yon account for the action of a part of those farmers during
the past election and just prior to the election ? A. Well, sir it was simply politics
at the ground of it, and there was a few colored men there who held office and all of
them admitted made good officers; they told me so frequently ; well, they couldn't
beat them and they determined to just put them out by force and take the office in
opposition to the Republican party, and it is chiefly owing to the influence of un-
scrupulous politicians determined to advance their personal interests to the disre-
gard of the great body of the people.

Q. Is this action of these few politicians indorsed by the better whii,e element of
Crittenden County ? A. It is not; it is the result of a political ring determined to
advance personal interests, regardless of the material benefit of the population.
(Printed record, page 201.)

Had the exiling been confined to persons indicted it would have
indicated, as already said, a want of confidence in the courts. But it
did not stop with exiling the indicted county officers. On the contrary
it extended to county officers not indicted and to persons who were not
county officers. In no instance was a Democrat driven out, and in
every instance the exiled is found to have been either a member of
" The Wheel," Union, or Knight of Labor, or Republican party.

J. P. Broadenax, after speaking of the exiling of the county assessor,
testified :

J. P. Broadenax (col.), a witness on behalf of the contestant, being
first duly sworn, testified as follows :

Q. Where do you live? A. Jericho, Arkansas; Crittenden County.

Q. How long have you lived there ? A. I've been there in that county about ten
years.

Q. What is your occupation ? A. Farming and merchandising, and I'm postmaster
of the town.

Q. How old are you ? A. 31 years of age; will be March 6th.

88 FEATHERSTON VS. CATE.

Q. I want to know if you voted at the election in November ? A. I did, sir.

Q. At what voting precinct? A. Bradley's.

Q Did you near the result of the vote announced that evemug? A. No, sir; 1
did not.

Q. There was an election held there regularly ? A. Yes, sir.

Q. Did you know the judges of election? A. I did not, sir; I did, too, I think;
some of them.

Q. Do you know of an organized body of men in Crittenden County armed with
Winchester rifles? A. I've seen some there with Winchester rifles.

Q. Do you know anything of the operations of those men there last July? A.
Some operations 1 know, sir.

Q. State what you know about that. A. What I know, sir, I was on a train, on one
coming down, and 1 seen about 30 or 40, probably more, at Marion, Arkansas.

Q. How long did the train stop? A. Stopped, I reckon, tenor fifteen minutes; about
that time.

Q. State what you saw them do. A. I seen them bring Assessor Rooks to the train
and put him on, and two or three more men from our place down there, and they crowded
them together on the train and left; O. W. Mychem was one ; I don't remember just
now who the others were, but there was several of them,

Q. Mr. Rooks was the assessor of your county? A. Yes, sir.

Q. Did he act as though he was leaving of his own accord on a pleasure trip ? A.
No, sir; he did not; he left without his accord, I think.

Q. JJid you hear them say anything to him ? A. I heard them tell him to get on
and leave.

Q. He didn't get on, did he ? A. Yes, sir.

Q. Did you see him as he came down on the train ? A. He wasn't on the train, he
got on at Marion.

Q. You didn't come on to Memphis then ? A. Yes, sir; I did.

Q. On the train with him ? A. Yes, sir.

Q. Did you talk to him any as you came down ? A. I did.

Q. What did he say? A. I asked him what that meant; he said he didn't know;
they ordered him to leave and not return any more, and didn't give him time to get
his clothes or nothing else.

Q. How many were following him when you saw him? A. I suppose there was
fifteen or twenty ; I reckon about that many ; I was a little excited myself ; seemed to
be about that many, though.

Q. He came on across the river with you ? A. Yes, sir.

Q. Did he bring his family with him ? A. No, sir.

Q. Do you know how long he was kept out of the county ? A. I do not, sir.

Q. Did those gentlemen seem to be excited themselves ? A. Well, no, sir ; not
very much ; they seemed to be mad. (Printed record, page 196.)

J. P. Broadenax, in speaking of the Republican member of the legis-
lature, testified:

Q. The ex-member of the legislature there, Mr. Odom, your neighbor, did he live
near you ? A. He lived about three miles from me.

Q. Did you know him well ? A. Yes, sir.

Q. Had there ever been any complaint in the courts against him ? A. None that I
know of.

Q. Was he a good business man considered so in the country ? A. He was, sir;
seemed to be a nice man. He was prospering, and to my notion was on good terms
with his white neighbors, Mr. Martin and others. He has made some properly, and
represented the county in the legislature. I had heard no complaint made of him as
a member of the legislature ; they said he made a good one, both white and colored.

Q. Was he ordered out of the county? A. I don't know that he was. He told me
himself he was ordered to leave, and some went oat to his house after him with Win-
chesters.

Q. Did he leave ? A. He did, sir.

Q. Don't you kuow as a matter of fact he did come back there some time in the
night? A. Yes, sir; I do.

Q. Have you overheard of any charge preferred against him in court in any way?
A. Well, I have since he went away.

Q. None before that ? A. None that I know of, sir.

Q. Had he ever been tried? A. Yes, sir.

Q. Sent to the penitentiary ? A. No, sir ; he was acquitted, I heard. (Printed
record, page 197.)

J. W. Wymme, in speaking on this subject, testified :

Q. Did they drive any private citizens out of the county except the officers? A.
Well, yes, sir ; driven out several besides those was in office.

FEATHERSTON VS. GATE. 89

Q. Did these men have families? A. Some of them did, sir.

Q. Did they own property there? A. Yes, sir. (Printed record, page 204).

E. Y. Logan, on this subject, testified :

Q. Were there any colored people aside from these four officers exiled ? A. Oh,
yes.

Q. How many ? A. Some 12 or 15 were exiled. (Printed record, page 219).

In determining the object of a conspiracy the law is that you may
refer to the acts, words, and conduct of the conspirators to fathom and
ascertain its existence and purpose, intent, etc. It is apparent from
the evidence that a conspiracy existed and that, the conspirators had
made up their minds to wrest the political control of Critteuden County
from the Republicans who had held it for many years.

This could not be done by obtaining a majority of the votes, for it
contained a Republican majority of at least 2,000, and there was no
dissension in the party.

By examining the statutes of Arkansas in relation to elections, it
will be found that the county judge, the county court clerk, and the
sheriff are important factors in conducting elections.

In the county judge is vested the appointment of all the judges of
election. The clerk creates the county board of canvassers, and the
sheriff, through his deputies, at every poll, is a power for good or evil
they can faithfully execute the law and protect the ballot-box, or they
can wickedly violate the law and debauch the suffrage. That the con-
spirators seized upon and obtained these offices is not denied. It there-
fore becomes pertinent to inquire, as a means of ascertaining the pur-
pose of the conspiracy, whether the power of these offices was exer-
cised in accordance with the law, or as a means to aid the conspiracy
to place the county under the political control of about one-sixth of its
legal voters.

For this purpose we will now examine the laws of Arkansas relating
to elections, and after quoting the law, try to ascertain whether it was
complied with in good faith.

HOW AND BY WHOM JUDGES ARE APPOINTED.

SEC. 2654. The county court, at its last term held more than thirty days before any
general election, shall appoint three discreet persons, in each tawnship, having the
qualifications of electors, to act as judges of election within the township (Mans-
field's Digest of Arkansas.)

Under this provision the judges of election must be appointed at the
July term of the county court. It was in July the Democrats exiled the
Republican county judge, with others.

JUDGES SHALL BE OF DIFFERENT POLITICAL PARTIES.

SEC. 2757. The judges of election appointed by the county court, or chosen by the
assembled electors, under the provisions of this act shall, if practicable, be from
different political parties, so that each party may be represented, and they shall, in
addition to the qualifications required by the constitution and this act, be able to
read and write. (Mansfield's Digest of Arkansas.)

At the time the Republican county judge was exiled, he had ap-
pointed the judges of election, according to law, so that each political
party was represented.

After the exiling of the Republican judge and the office had been
seized and appropriated by the Democrats, the Democratic county
judge, who had come into possession of the office by reason of the con-
spiracy, revoked these appointments, and appointed all of the judges
of election from the Democratic party.

90 FEATHERSTON VS. GATE.

Wash Deaver, in the course of his testimony, states this significant
fact :

Q. I want to know if prior to the time of your being exiled, and Judge Lewis, the
county judge, being exiled, if he had appointed the judge of election for the ensuing
election ? A. Yes, sir ; he had.

Q. Had the notice of that tact been given to sheriff? A. Yes, sir; put in the sher-
rifFs box in the clerk's office.

Q. Had Judge Lewis complied with the law in Ark., by representing all political
parties among the judges? A. Yes, sir.

Q. Do you know whether or not those judges were afterwards changed? A. Yes,
sir.

Q. How do you know it-? A. I know it from the fact that Mr. Martin told me so,
the judge who now holds the position, and I know that the men I know were ap-
pointed dida't serve.

Q. You say Judge Lewis appointed some Dem. at each voting place ? A. Yes, sir.

Q. Complied with the law ? A. Yes, sir.

Q. What is the general impression of the reason that prompted Judge Martin for
making the changes in the judges of election ? A. To count the votes there was ap-
pointed such men as he knew would count the vote for them.

Q. Do you know in the whole county among your acquaintances of a single Rep.
who served as judge of the election in Crittendeu County in the last State and Na-
tional election ? A. I don't know a single one, except one or two precincts where
they had to arrange the election themselves, wherein the absence of the regular
judges, the voters had to select judges of their own. (Printed record, page 224.)

All judges of election Democrats in the county.

E. D. Sanders, in speaking of the political status of the judges of
election in Crittenden County, testified :

Q. I would like to ask whether the judges of election throughout the county, as a
rule, Democrats or Republicans, or divided? A. They were all Democrats.

Q. Does the law require in Arkansas that both political parties shall be repre-
sented by judges of election in various elections ? A. It does.

Q. What is your impression of the reason the law being violated, and almost all
the judges iu the entire county being selected from the Democratic ranks ? A. Well,
that was very plain to me. They could defraud the Republican party out of their
votes. (Printed record, page 200.)

It is not explained why it was that Judge Lewis could find two Ee-
publicana in each township who were fit to be judges of election and
Judge Martin could not find any.

COUNTY COURT TO PROCURE BALLOT-BOXES.

SEC. 2676. It shall be the duty of the county court to provide, at the expense of
the county, a good and sufficient ballot-box, with lock and key, for the several town-
ships or places of voting in their respective counties for the safe-keeping of the
ballots, etc. (Mansfield's Digest of Arkansas.)

SHERIFF TO DELIVER BALLOT-BOXES TO JUDGES.

SEC. 2677. It shall be the duty of the sheriff in the several counties in this State to
deliver to one of the judges of election in each township the ballot-boxes so provided
by the county court. (Mansfield's Digest of Arkansas.)

CLERK TO DELIVER BLANK POLL-BOOKS TO SHERIFF.

SEC. 2663. It shall be the duty of the clerk of the county court of each county, at
least twenty-five days before each general election and ten days before each special elec-
tion, to make out and deliver to the sheriff of his county two blank poll-books for
each township, properly laid off in columns, with proper captions and forms of oaths
and certificates attached thereto.

SHERIFF TO DELIVER POLL-BOOK TO THE JUDGES.

SEC. 2666. It shall be the duty of the sheriff forthwith to deliver such books to
the judges of election within their respective townships. (Mansfield's Digest of Ar-i
kansas.)

FEATHERSTON VS. GATE. 91

Instead of the county court procuring the ballot-boxes, as the law
requires, the Democratic sheriff procured fraudulent ballot-boxes, one
of which is produced in evidence in this case.

Instead of delivering the poll-books, as required by law, for the No-
vember election, he neglected to perform that duty, but left that matter
to the wisdom and discretion of the Democratic sheriff.

How far and how well he performed his work the testimony very ex-
plicitly shows:

E. P. James (white), a witness on behalf of the contestant, being first
duly sworn, testified as follows :

Direct examination :

Q. How old are you? A. 47 years old the llth of this month.

Q. You are a citizen of what county ? A. Shelby County.

Q. State of Tennessee ? A. Yes, sir.

Q. We want to know if you have ever seen a box similar to the box that is marked
as Exhibit " A " in a previous deposition, and is now before you, and forms a part and
parcel of the testimony in this case ? A. Yes, sir.

- Q. Will you please state what you know with regard to that box, and your con-
nection with it ? A. I know that we've made a great many boxes of that pattern
that kind ; in fact, I think we made that one.

Q. We want to know if you have ever made any that were shipped to Marion, Ar-
kansas, in Crittenden County ? A. We made, I believe it was, 21 boxes and shipped
to the sheriff of Crittenden County, W. F. Werner, at Marion, Ark. ; they were or-
dered by Mr. Werner and charged to him, I know that.

Q. Shipped on what day? A. August 21st, 1888, as seen on page 10y, ship book.

Q. How many boxes ? A. 21.

Q. Did you know anything of his official position at that time ? A. I didn't know,
but I understood he was the sheriff of Crittenden County.

Q. Will you please examine that box and see if 'tis exactly the same as those 21
that you shipped to Marion for Mr. Werner, the sheriff of Crittenden County. A.
Well, I can't say that it's exactly the same, but it's almost a fac-simile.

Q. Can you see wherein it differs materially? A. No, no; it don't differ at all, it's
the same thing exactly ; we don't save patterns of them at all, but I see no difference ;
that's the kind of box it was ; there might be a little difference in dimensions, but the
same thing in every other way.

Q. For what purpose were they ordered ? A. They were ordered, as I understood,
for ballot-boxes.

Q. Is the entry so made on your books ? A. Yes, sir ; 21 ballot-boxes.

Q. To be shipped to what point ? A. They were shipped from the store; I couldn't
say positively where they were shipped to; I know they were shipped to the sheriff
of Crittenden County; they were charged on the books to W. F. Werner, Mound City,
Arkansas.

Q. How would you describe the boxes as made by you? A. Well, they are made
as we would generally make ballot-boxes, with that extra cap on the slot that you
put the ballots in ; I have no more idea what that's for than the man in the moon ; it
was none of my business; I made them as I was ordered ; well, I have an idea, too,
but at the same time I don't know.

Q. With what firm are you connected in the city of Memphis? A. H. Wetter
Manufacturing Company.

Q. In what way ? A. As foreman of the shop.

Q. As such you know the foregoing to be a correct statement of the facts ? A. Yes,
sir ; as near as I ean get it.

Q. Were all the boxes made by you furnished with this peculiar cap which accom-
panies the box before you? A. All that 21 boxes made for the sheriff of Crittenden
County had that device attached to them; I had no idea I'd get into this kind of u
scrape, though, when I was making them. (Printed record, page 228-9.)

Stephen James tells how the ballot-boxes returned a Democratic majority
in a Republican county.

Stephen James, in speaking of the September election, says :

Q. Do you know whether the ballots were counted at the various precincts in your
county according to law, or whether the boxes were carried to the county seat before
being counted ? A. I can not, only from hearsay.

Q. What have you heard v.ith regard to that ? A. At Bradley's precinct, when they
got done voting, this man in Memphis remarked to the boys, " You know our orders."

92 FEATHERSTON VS. GATE.

My half brother was acting there that day, was representing our ticket on the out-
side, and when they got done voting this man remarked, " Well, boys, you know our
orders," and my half brother remarked to him, "Aint you going to count them votes?"
Said he, " No," and they taken the poll-boxes, two or three boys following them, and
they carried it into Sam Cells' house about sundown. That was about in a mile of
Marion. They never was counted at the precinct at all, and the way they kept them
there, there was 220 votes cast, and the so-called Democratic party I think got eight,
and when they was counted out in Marion the so-called Democratic party got 212,
and the People's ticket got 8, and the man that distributed their tickets there told
me he only distributed 8 tickets there that day. (Printed record, page 186.)

Having secured the appointment of Democratic judges of election the con-
spirators made an attempt to keep the Republicans from putting a
county ticket in the- field.

Jordan Yeates, in speaking of the effort on the part of the Democrats
to prevent the Bepublicans from putting out a county ticket, testified :

Q. Have you had any trouble over there in the last few months, growing out of
politics? A. Yes, sir; we had last year, from last July up until you may say rill
now, we've had great trouble, sir; great trouble.

Q. Go on and state what you know about that trouble. A. Well, they went to
work, of course the Democrats did, and drive the officers, Dan Louis, Dave Furgiison;
that is, their intention were to get all the Republican leaders, colored, out of the
county ; that was their object, and they went to work and drive Dan Lonis, Dave
Ferguson, and a good many others, I couldn't call their names, out.

Q. What excuse did they give for that? A. Well, the excuse they told me for it,
was they had written a notice to them giving them so many days to get out the
county in, certain men, and they just reversed it by making them leave before that
time, in the place of them having to leave themselves.

Q. Have these same men since that time been directly charged with writing these
anonymous letters? A. Don't know, sir, whether they have or not; don't think
they have.

Q. After that trouble commenced, do you know of any threats that were made as
to what would be done against prominent members of your party in your county ? A.
Oh, yes. sir ; they were making threatenings all the time. Directly after that riot
taking place, I remember they drive those men off the day that the county central
committee called the convention together that is, on Saturday were the day they
were to be called they drive them off; on Thursday I met there myself with a few
more ; Mr. Werner said to me, "You better not try to hold a convention here to-day,
there's too much excitement; if you undertake it you will be hurt ; we ain't going to
have but one ticket. "

Q. What ticket was that? A. That was the Democratic ticket, and I answered him
by saying we were going to hold a convention somewhere in the county to-day ; he
said yon can't hold it here, you better not try to hold any here.

Q. Was Mr. Werner an officer in the county at that time ? A. He was the sheriff
then at the time ; then, of course, after I talked TO him I went over to Major Critteu-
den, told him what Mr. Werner had said to me, then major advised me to go and hold
it ; that being the day set for to hold the convention for the county central commit-
tee called, to go and hold it somewhere and it would be legal. So I went up the
road and got what I could together, and I didn't call the convention that time ; so
afterwards Mr. Werner finally agreed we could hold the convention in the court-house,
but he told me that they had made one ticket, and there was going to be but that
one ticket elected ; that if it was elected it wouldn't do any good ; that they shouldn't
hold the position, and went on to make offers what he'd rather do, and so on; said
he was speaking for the others ; offered if I wouldn't hold the convention, fRO to each
delegate ; that we'd just decide on what they had done and take their men that they
had appointed. I didn't agree to that, so Mr. Gus Fogalman sent for me on Satur-
day morning to come over there to the post-office ; I went over to the post-office, and
he said to me, " I want to see you to see if we can't make some arrangement to stop
you all from making a ticket ; I believe it would be cheaper for us for you all to do
that, not to make no ticket, because if you make a l icket, if you effect it, it ain't going
to do you any good, for the nominations we have made are going to be the officers ;
and," "he said, "now, what will you charge to break up the convention? You can
break it up even if the intimidation we offer of $50 a piece to each delegate ; if they
don't do it, why, you being chairman, you get up there, go to work, and don't heed
nothing, and you'll get it done that way, if you can't do it any other way." Oh, I, of
course, didn't tell him what I thought about it, because I knew I was about like the

FEATHERSTON VS. CATE. 93

rest ; I was there ainougst them Winchesters, though I told him couldn't do any-

There
,$250
if you'll doit,"

Q. That was Mr. Werner? A. No, sir; that was Fogaltnan ; he was represent-
ing the crowd ; so me and him didn't agree on it, and Mr. Werner then, after that,
alter we made the nomination that day, then I met him at Crawfordsville in a few
days afterwards, and he said that he had been instructed that we were going to re-
call to reconsider the matter, and he said if we did do it, it would be all right, and if
we didn't they were going to have the office any how, no matter how the election
went ; no matter how many or how little they got, they were going to hold the office,
and if we would take their otters they would give us justice of the peace and con-
stable, that was their offer. Really to go to work and track Mr. Werner's conversa-
tion with mo from that time up, I couldn't do it because he courted me from the time
to the day of the election, but making those violent threats all the time ; that we
might carry the election as we pleased, but they were going to have it.

Q. He claimed to represent the Democratic vote and you the other? A. Yes, sir.
(Printed record, page 193.)

After the ticket was nominated the Democrats attempt to make the
candidates decline.

J. H. Williams (white), a witness on behalf of the contestant, being
first duly sworn, testified as follows :

Q. What is your name? A. J. H. Williams.

Q. Where do you live ? A. Crittenden County.

Q. What State? A. Arkansas.

Q. How old are you ? A. 47.

Q. How long have you lived in Arkansas? A. 21 years 5th day of this month.

Q. Have you ever held any official position there ? A. I have.

Q. What position? A. Squire for six years, and judge of the county and probate
court two years.

Q. What ticket were you elected on then ? A. Democratic.

Q. What have your politics been during the time you've been in Arkansas ? A.
Democratic.

Q. How long have you been farming in Arkansas ? A. 21 years.

Q. You own your home there ? A. I do ; at least my wife does.

Q. Are you engaged in any other business beside farming ? A. I am, sir.

Q. What is it ? A. Merchandising.

Q. At what point ? A. Crawfordsville and Jericho.

Q. How long have yon been merchandizing at both these points? A. Well, I com-
menced in 1881 at Crawfordsville, and last spring at Jericho.

Q. About how many bales of cotton do you handle per year? A. About 50 or 75 ;
I don't buy cotton ; we do a cash business ; we don't propose to handle cotton.

Q. Were you a candidate for a position in the last election ? A. I was.

Q. On the People's ticket ? A. Yes ; I was.

Q. Do you think you were elected ? A. I was.

Q. By what vote? A. 1,200 or 1,500 majority.

Q. Did you get the office ? A. I did not.

Q. Why not? A. Well, I ain't been able to find out; I just seed I couldn't get
there ; they said they was elected, and I couldn't get there ; I don't know why.

Q. Have they ever denied that you received the plurality of votes ? A. O*h, yes ;
they deny that all the time ; they say they are elected, but I say they are not.

Q. What makes you think you were elected ? A. Well, sir, 1 was on what they
call the Republican ticket, and the majority there is generally between 1,200 and
1,500 ; as much as two thousand; we haven't over 400 white people in the county,
and the black man never votes anv other ticket, unless he's pursuaded or paid, and
this time neither was done, that is my belief. The black people come to me and said
all I ask of you is to put your name to this ticket, we want a Democrat on this ticket,
and if you will just say you will run we'll elect you ; you needn't spend a cent. And
I told them I'd servo them if they'd elect me ; I didn't tell them I'd be a Republican;
I ain't a Republican, and never will be, I don't think.

Q. Were the white men that were on that ticket asked to become Republicans
when they were put on the ticket? A. 1'hey were not ; the black people asked
to have the best Democrats in the county on the ticket and they would vote for
them ; they couldn't get enough of them, and put a black man on it. I rode three
weeks on my horse, and told ^hose people that was what they ought to do, and

1)4 FEATHERSTON VS. GATE.

they wouldn't do it ; I said you can go to hell ; John Williams will do as he
pleases.

Q. Was the disposition of the colored people to override the white people ? A. It
was not ; they wanted nothing but simple quietude in every shape.

Q. Did you accept this position in the interest of the government in Crittenden
County for a special desire to be judge of the county ? A. I done it for the county's
interest; not that I cared a cent for the judge's office; I wouldn't give thank you for
it to-day.

Q. Does your private business require most of your time at home ? A. Yes, sir.

Q. You say you didn't want to bo nominated as judge ? A. No, sir ; the second
time I wouldn't have it. I read a piece in the paper where a man had been in office
40 years, and the first hundred dollars be borrowed he never had paid it back ; I said,
John Williams, you go home to your wife and children.

Q. You didn't want the office of judge? A. I did not, sir; but when I found out
that I had been nominated by the colored element on the ticket I determined to serve
if I was elected, not on account of private gain to myself, but for the best interests
of the people of the community.

Q. You had known of the operation of the Winchester rifle crowd at the beginning
of this matter, had you ? A. I had, sir.

Q. Did you say anything to them with regard to what would be the conse-
quence of their way of proceeding ? 'A. I said this: I said, "What you've done,
you've done well enough, but don't carry it into politics." That's what I said to Dr.
Bingham.

Q. Then you were looking after your own interest, and the interest of the people of
the county, in a business way, when you agreed to enter this contest, and admit
to all this political excitement ? A. I was, sir ; and furthermore I kept trouble down
otherwise. I told them it wouldn't do. I wanted everything quiet, and told the
white people and the black people that wo wanted quietude, and wanted to live to-
gether.

Q. Is it your opinion, if your advice had been followed, you would have had any
serious trouble in Crittenden County at this time at all ? A. We'd have had the
most prosperous country in the world, sir. They see it as well as I do now.

Q. In bringing on this trouble do you consider the mass of the colored people of
that county to blame, or what is known as the Winchester element ? A. The mass of
the colored people wasn't to blame.

E. D. Sanders, after telling of the driving away of the county officials
by Democrats, testified :

After that they held a convention, these same men, and made a ticket which they
called a Democratic ticket ; the colored people then went to make their ticket, and
they forbid them to make a ticket; well, they saw they couldn't make a colored
ticket, and I don't tnink they had any inclination to do it, and they tried very hard
to get up enough white men, old fanners in there, to till the four important offices,
and they worked on this for over a week ; they couldn't do it ; they came to me and
asked me if I would accept the nomination for sheriff, and I refused ; I told them I
never held any office, I didn't wish any; well, they then told me that they didn't see
how they could keep down a fuss unless we would do it ; unless I would get them out ; I
went out then and consulted with some white men about it, and they insisted that I
should do it, and I told them then for the good of the county I would run ; well, they
met then and nominated me, and there was a delegation came out from Marion and
asked me to withdraw ; I asked them on what ground.

Q. Please state the names of that delegation. A. Dr. Bingham, Major Crittenden,
L. P. Berry, and Colonel Smith, John R. Chase.

Q. Were they generally considered as the leaders of the Democratic party in that
movement ? A. Yes, sir.

Q. What reason did they give you for asking you to withdraw from a nomination
already tendered you ? A. Didn't give any ; I asked them to give me a reason, and
they never did do it. Well, then, I proposed to them if they would do away with
the ticket that they made and call a convention of the white people in the county
generally and make a ticket that I would resign, I wouldn't run, and they said they
couldn't do it ; well, I still made another proposition ; that if they would withdraw
two men they had on the ticket and nominate two more that I would withdraw; said
they couldn't do it ; well, then 1 told them if they beat me they would beat me at
the ballot-box, and I ran the race through and suppose I got about six votes to their
one ; I'm pretty certain of it, because we had outside clerks that kept every name
down, but they counted us out, at least their returns the secretary of the State
counted us out.

Q. Yon say that your impression is, from the tally sheets kept by outside clerks
friendly to your side of this cause, that you are satisfied that your ticket was elected
by five or six to one? A. Yes; our tally sheet showed up 2,500 votes.

FEATHEESTON VS. GATE. 95

Q. Now what has been the proportion of the Democratic and the Republican vote
in that county? A. About one-sixth Democrats.

Q. Is it not a fact that a considerable number of men who had never before voted
any other ticket but the Democratic ticket voted for your ticket ? A. '1 hey certainly
did ; I know that to be a positive fact. (Printed record, page 199.)

Failing to get the Republican ticket out of the way, they then commenced to
threaten that they would carry the election at all hazards.

E. D. Sanders, in speaking of threats made prior to September elec-
tion, testified:

Q. During the time just prior to the election did you hear any direct threats, or
was there any remarks made as to the comparative value of a Winchester rille and
money in carrying elections in Arkansas? A. I did.

Q. Please state what they were ? A. I heard, on one or two occasions, men there
say that Winchester rifles were cheaper than to buy votes; and then one mau told
me to my face it didn't matter how the election went, they were going to have the
offices.

A. Who was it that made that statement? A. This was William Willerford
(Printed record, page 199.)

Jordan Yeates, in speaking of the threats made to carry the Septem-
ber election, testified :

Q. And he told you that he was going to carry that election and get those officers,
no matter how the vote went? A. That's what he said, yes, sir ; he certainly told
me that, I reckon, more than five or six different times; he made those threats to me
five or six different times ; the last time was at West Memphis, and he said he wouldn't
serve as sheriff with no more colored officers.

# * # * *

They made threats that they were going to carry the election, and if they had to
carry it with their Winchesters; and again, now this was Mr. Jnl Harden made that
threat ; that he thought it was cheaper to take the election with the Winchesters than
it was to take it with money. I heard him make that, and I remember exactly where
he was sitting when he said so; that it was cheaper for them to carry it with their
Winchesters than with money; that was the evening after our convention.

Q. I want to know if some days prior to the election were they making demonstra-
tions all around over the county with those guns marching around with them? A.
Oh, yes, sir; they was. (Printed record, page 193.)

S. K. Bushing, on this subject, testified :

Q. Did you ever hear any threats made in regard to Republican voters voting the
Republican ticket ? A. No more than the Winchester rifle crowd said there shouldn't
no colored man hold office in that county; that's what they said; shouldn't no col-
ored man hold office in that county.

Q. Have you heard any threats in regard to Republicans holding office in that
county ? A. None of them shouldn't hold no office there.

Q. Who did you hear referred to on this occasion ? A. These parties that we nomi-
nated on our ticket as Republicans ; Mr. James, Mr. Boon, Mr. John Williams, Jim
Thompson, and Augustus. (Printed record, page 207.)

F. L. Fleming, in speaking of the ticket nominated as a fusion ticket,
testified:

Q. What do you mean by a fusion ticket T A. By giving the Democrats and Re-
publicans part of the offices. Our method over there was to give the sheriff and
treasurer to the Democrats, elect the clerk Republican, and judge Republican. Those
were the four prominent positions in the county. The others were divided among
the white and colored. The leading colored men of that county advocated that, and
that was the kind of ticket that was elected in 1886, under our advice, and had been
for several years.

Q. Did the leading colored Republicans over there, in their advice to their con-
stituents to live in peace and amity with the whi te people, or not ? A. Yes, sir ; they
did ; I ran a paper over there, and that was my advice the last issue I made over there
on the 7th day of July, 1888. There was one paragraph I remember well. I asked the
colored people to divide the positions bdweon the white and colored; it wouldn't be
a safe policy to advocate an entire Republican ticket or an entire black ticket. (Print-
ed record, page 196.)

96 FEATHERSTON VS. CATE.

J. P. Broadenax, iii speaking of what class of persons the Democrats
were dissatisfied with, swears :

Q. Against whom did the armed crowd seem to be operating chiefly T A. Against
the colored, sir.

Q. That was before your county ticket was made, was it ? A. Yes, sir.

Q. You afterwards made up a county ticket upon which there was four or five re-
sponsible white men in the county, did you not T A. Yes, sir.

Q. That was known as what ticket? A. The Republican ticket, sir.

Q. Did you hear them say anything, or were any threats made as to that ticket or
those that were on it, that you know of ? A. Well, I've heard some threats made,
but they were not made directly to me.

Q. Have they seemed any kinder or more pleasant toward those white men than
they have toward the colored men since that time of this opposition, seemed any
kinder toward the white men that were on your ticket than they were to the colored
men of the county, or have they treated them all about alike ? A. They treated them
all about alike, seemed like to me as far as I've seen, the white men that was on the
ticket and the colored people seemed to be treated just about alike. (Printed record,
page 197.)

The Winchester rifle crowd.

William Eoyster, in speaking of who belonged to the Winchester
rifle crowd, testified :

Q. Do you know Mr. Berry, the lawyer of Mr. Cate in this investigation ? A. Yes,
sir.

Q. Do you know whether he was a member of this Winchester crowd or not? A.
Oh; yes, sir; he drilled in front of my door every night, and up-stairs in the court-
house ; he had the company drilling -it himself; he was captain of the company in
Marion ; he had one company and Olie Tuck, the deputy clerk, had one.

Q. Do you know whether Mr. Kelly, the clerk of the county court, was a member
of this organization or not ? A. He was then, because he guarded the jail every
night to keep any troops from getting in the court-house ; he kept guard while the
others was out scouting.

Q. Were they officers of the county before this Winchester organization or after-
wards ? A. Mr. Vance was clerk then when Kelley had the Winchesters at the court-
house.

Q. Were these county officials elected in the election in which these Winchester
rifles to which you refer intimidated the voters from voting? A. Yes, sir.

Q. They were elected to their present position at that election, were they ? A. Yes,
sir.

Q. So they had a personal interest, then, in this terrorizing and bulldozing ? A.
Yes, sir; that morning on the 12th of July I was sitting over there in front of my
house on the grocery porch, and they was down there by Mr. Chase's caucusing, and
I heard Mr. Crittenden over at his office tell them they was a God damn long tinie
doing what they promised, and they marched on to the court-house and they went off
to the clerk's office and marched the men out and stood there fifteen or twenty min-
utes and then carried them on the north side of the court-house.

Q. Were any of the men exiled from the county by that body of men except your-
self? A. Oh, yes, sir; yes, sir; I reckon there was about fifteen or twenty of us
altogether.

Q. Were they farmers and men of the county who owned property there? A. Yes,
sir, pretty well; all of them owned property, farmers and officers. (Printed record,
page 190.)

J. W. Wyinme, in speaking of the same subject, testified :

Q. You speak of a Winchester-rifle crowd ; do you know whether that party of men
claim to be Democrats or Republicans? A. Democrats.

Q. Have you ever heard directly from them the object of their organization? A.
Never has, sir ; only seen them drilling drilling the other day.

Q. Do you know of any of the officials of Crittendeu County who are members of
that organization f A. Well, yes, sir ; I do.

Q. Who are they ? A. The officials are : Let me see, there is Neeley Raspberry.

Q. What position does he hold ? A. Coroner.

Q. Who else? A. Sheriff Warner belongs to it ; he's the captain, I believe, or drill-
master or something.

Q. Anybody else ? A. Bob Gilliard.

Q. What position? A. I don't know what position, he holds. (Printed record,
page 204.)

FEATHERSTON VS. GATE. 97

William Eoyster, in speaking of the political status of the county
officers of Crittenclen County, testified :

Q. You say Mr. Forest represented an organized crowd of men armed with Win-
chester rifles. A. Yes, SIT.

Q. Do yon know who the members of that crowd were ? A. I knew some of them.

Q. Were any of the county officials members? A. Yes, sir; Mr. Warner and Ju-
lian Harden. I

Q. What position did Mr. Warner hold? A. Mr. Warner, sheriff; Julian Harden,
deputy sheriff; Neeley Raspberry, coroner ; and Squire Mosbey, justice of the peace ;
and Squire Martin, county judge. (Printed record, page 190.)

It appears from the testimony of J. W. Wyinme that the Winchester
rifles were used up to the November election.

J. W. Wymme (col'd), a witness on behalf of the contestant, being first duly sworn,
deposed as follows :

Q. What is your name ? A. J. W. Wymme.

Q. Where do you live ? A. Irf Crittenden County, Crawfordsville, State of Arkan-
sas.

Q. How long have you lived there? A. Near twenty-three years.

Q. How old are you ? A. 45 years old, going on 46.

Q. What is your business ? A. Minister of the gospel.

Q. Where were you living last July? A. At Crawfordsville.

Q. Do you still live there? A. Yes, sir.

Q. You say you were living at Crawfordsville last July ? A. Yes, sir.

Q. Do you know whether there was a political disturbance ia that place at that
time ? A. There were.

Q. What was it ? A. Well, several of our officers were put o.ut of the country, out
of the State.

Q. Yon say they were put out of the country ; how were they put out ? A. By
guns Winchesters these Winchester rifles.

Q. Who had possession of those arms? A. There were so many that had posses-
sion of them I couldn't tell you all.

Q. Do you know any reason that was given for exiling those men to whom you re-
fer ? A. I do not ; only that they said they were dabbling too much in politics.

Q. What was the force of the Winchester-rifle crowd ? A. I don't know ; I never
did know how many there were.

Q. How many did you ever see ? A. I've seen, I reckon. 18 or 20.

Q. How long did that state of affairs continue there ? A. Well, they continued a

od \vhile. After they put those men everything become calm for a while, but they

ver did stop toting the guns, rifles, and one thing and another.

Q. Are they stiM carrying them ? A. Yes, sir; the day of the election, the evening
fter the election was over closed, I met 18 or 20 of them, all in a group, going down
Marion with their rifles.

Q. What election was that ? A. The last election we had.

Q. The election for Mr. Harrison and Mr. Feat herston? A. Yes, sir.

Q. What effect did this state of terrorism which yon refer to have upon the people
of the county ? A. Well, it had a great effect upon them, sir ; I think it scared up
everybody; they were afraid to do anything ; afraid to even claim for their rights.

The contestant in his notice of contest (par. XIX) charges

That in the county of Crittenden, in said district, there are over twenty-nine hun-
ed (2,900) legal voters; that not more than five hundred (500) of that number are
imocrats and partisans of yours; the other twenty-four hundred (2,400) were and
are friends and partisans of myself; that the county judge of said county, who is a
partisan of yours, well knowing that you did not have to exceed five hundred (500)
supporters in said county and that I had more than twenty-four hundred (2,400), in
your interest and against mine, in violation of law appointed all of the judges of
election from the political party to which you and he belong, in open and direct
violation of the statute in such case made and provided, and for the purpose of pro-
ducing the result herein set forth in relation to the townships of Belcher, Edmond-
son, Bradley, Walnut Grove, Riceville, Mound City, Scanlan, Furgeson, Crawfords-
ville, and Cat Island ; that the sheriff of said county, who is a partisan of yours,
with the intent and purpose of advancing your interests in said county and injuring
mine, and with the view of preventing the holding of an election in said county on
said 6th day of November, 1888, willfully failed and neglected to furnish poll-books
to the judges of election in the various precincts in said county, as by law ho is
required to do, and but for the fact that I c used poll-books to be furnished to
said judges of election no election would have been held in said county; that

H. Mis. 137 7

98 FEATHERSTON VS. CATE.

the county clerk of said county, who is a partisan of yours, for the purpose of aid-
ing you and injuring me, through mistake or fraud failed to certify six hundred and
twenty-one (6*21) votes to the secretary of state that I received in the precincts or
townships of Belcher, Edmonson, Bradley, Walnut Grove, Riceville, and Furgeson,
although the judges of election had made proper return thereof to him ; that in the
precincts last named you received only sixty-four (04) votes; that the judges of
election in the precincts of Crawfordsville, Cat Island, and Walnut Grove, and all
6f wliDiu are partisans of yours and creatures of the county judge, the sheriff and
county clerk or said county, through mistake or fraud falsified, the returns from said
last-mentioned precincts, so that they were made to appear I received four hundred
and six (40(5) votes, whereas I received six hundred and seventy-two (672) votes
in said precincts ; that said falsified returns from said last-mentioned precincts show
you received two hundred and eight ('203) votes, whereas you received but one hun-
dred and fifteen (115). I claim the right to show the lawlessness of your partisans
in said county of Crittenden from the highest to the lowest, and any connection you
may have had with them, and shall claim the right to show that their title to said
offices of county judge, sheriff, and county clerk was bottomed on fraud of the char-
acter herein stated, and of ballot-box stuffing, and that said judges were selected
because of their tact and talent in the business to which they were appointed, not only
at the election held November 6th, 1888, but in that of September, 1888. (Printed
record, 6-7.)

The lawlessness of the partisans of the contestee is fully shown ; that
the title to the office of the county judge, who appointed the judges of
election of and from the Democratic party, was based on fraud and vio-
lence; that the county clerk, whose duty it was to certify the Novem-
ber vote to the secretary of state, obtained his office by the same and
like means, and that the judges of election were chosen as agencies by
and through which the frauds were to be committed and were com-
mitted does not admit of question, or they would not have used the
fraudulent ballot-box.

We have already said the evidence fully establishes the conspiracy.

The contestant charges that the county clerk failed to certify to the
secretary of state the votes cast for him in seven townships at which
elections were held in Crittenden County.

The law of Arkansas in relation to counting the vote is as follows:

WHEN AND BY WHOM THE VOTE SHALL BE COUNTED.

SEC. 2695. On the fifth day after the election or sooner if all the returns have been
received, the clerk of the county court shall take to his assistance two justices of the
peace of the county, if they can conveniently be had, and if not then two household-
ers having the qua.' ifications of electors, and shall proceed to open and compare the
several election returns which have been made to his office and make abstracts of the
votes given for the several candidates for each office on sep arate sheets of paper.
(Mansfield's Digest of Arkansas.)

VOTES MUST BE COUNTED REGARDLESS OF ANY INFORMALITY.

SEC. 2700. The clerks of the county courts of the several counties of this State when
they shall call in two justices of the peace or householders to assist them in compar-
ing the poll-books of the several townships shall proceed to add and count all the
votes for the several persons therein voted for regardless of any informality whatever.
(Mansfield's Digest of Arkansas.)

SEC. 2699. Informality in the certificate of the judges and clerks at any election held
in any township shall not be good cause for rejecting the poll-books of said township.
(Mansfield's Digest of Arkansas.)

PENALTY FOR FAILURE TO COUNT THE VOTE.

SEC. 2701. Should any clerk of the county court and the two accompanying jus-
tices, or householders, or either of them under any circumstances reject or refuse to
count the vote on any poll-book of any election held by the people, such rejection or
refusal by such clerk, etc., or either of them shall be deemed a high misdemeanor,
etc. (Mansfield's Digest of Arkansas. )

FEATHERSTON VS. CATE.

In Patton vs. Coates, 41 Arkansas.

These sections being under construction, the supreme court of Arkansas said :

" The board of canvassers of an election have no judicial discretion whatever.

They are merely for the purpose of a fair and correct computation of the votes, under

public surveillance, presented to them by the clerk."

In view of these sections of the Arkansas election law, and the con-
struction thereof by the highest court of the State, the failure of the
clerk to certify the returns of the seven townships alluded to is simply
a willful disregard of duty, but no greater than those indulged in by
the county judge and sheriff.

For the purpose of procuring the evidence in relation to the vote of
the seven townships, W. B. Eldridge, one of the attorneys of the con-
testant, went to the county seat of Crittenden County and obtained a
certificate showing the returns were on file in [his?] office, and in speak-
ing of his mission says:

Q. Did you go over to Marion a short time ago, and for what purpose ? A. I went
theie for Mr. Featberston, to procure ths election returns for Critteudeu County from
certain townships that had not been certified up to the secretary of state from Crit-
tenden County.

Q. Do you make this abstract Exhibit A to your deposition? A. Yes.

[Exhibit A to deposition of W. U. Eldridge.]

Abstract of poll-books of election held on the 6th day of November, 1888, for Bepreaentative
in, Congress, for the 2nd Congressional district of the State of Arkansas, in Crittenden
County, at the J allowing precincts or voting places, and not certified to the secretary of the
stale on account of irregularities in the poll-books appearing therein, that the judges and
clerks of said election were not sworn as the law dirtcts.

Total
vote.

W. H.
Gate.

L. P.
Feather-
ston.

147

133

189

137

208

195

CLERK'S CERTIFICATE TO TRANSCRIPT.

STATE OF ARKANSAS, County of Crittenden :

I, Sam'l Keel, clerk of the circuit court, within and for the county and State afore-
id, do hereby certify that the annexed and foregoing pages contain a true and com-
lete transcript of the above as therein set forth, and as the bame appears of record,
my office at Marion, Critteuden County, Arkansas.
Witness my hand and official seal this 21st day of February, 1889.
LSEAL.] SAM'L KEKL, Clerk.

, D. C.

Q. I ee from the face of the clerk's certificate that there is an assertion to the
effect that the returns were not sworn to as the law directs. Please state the circum-
stances under which these words were put upon tho face the certificate. A. It was
dictated by Mr. Berry, the lawyer of Mr. Cate in this contest, to the clerk, who wrote
it word for word at his dictation, and only gave me this abstract after mature consul-
tation with Mr. Gate's lawyer. (Printed Record, page 227-8.)

In six of the townships named, Mound City, Walnut Grove, Bradley,
Edinondson, Kiceville, and Gilmore, the aggregate vote was as follows :

Featherston 620

Cate . 89

Majority for Featherston 531

100 FEATHERSTON VS. GATE.

We think this vote is sufficiently proven, and ought to be allowed the
contestant.

It is conceded that the majority, on the face of the returns, for the
contestee is 1,342. Deduct the 531 majority for Featherstou in the six
townships. This leaves Gate's majority 811.

Scanlan Township.

Seaulau Township is one of the townships included in the clerk's cer-
tificate of votes not certified to the secretary of State, and the vole
in which we have not included in contestant's vote in our foregoing com-
putation.

The testimony in relation to that township is as follows:
John Johnson (col.), a witness on behalf of the contestant, being first
duly sworn, deposes as follows :

Q. What is your name ? A. John Johnson.

Q. Where do you live? A. In Arkansas, Critteudeii County.

Q. How old are you ? A. Going on forty-six.

Q. What is your business ? A. Farming.

Q. How long have you lived in Arkansas ? A. 17 years.

Q. What is your voting precinct ? A. Scanlan.

Q. Were you there attho last general election ? A. Yes, sir.

Q. What's about the usual vote of that precinct? A. Well, from 100 to 12 ' or 4.

Q. How many of those are Republicans? A. Woll, about 110 or 112.

Q. How many are Democrats? A. About 8 or 9.

Q. You way you were at the Presidential election ? A. Yes, sir; I'm at all of them,
but then I was there anyhow, at that one expressly.

Q. What time did the polls open ? A. Well, they said they was to open in the
morning at 9 o'clock, and close.at 4. I couldn't tell you the real hour they did open ;
they may have opened before 9 or after 9, that, was the time set to open, at 9 o'clock.

Q. Was there some people come out to the polls that day that didn't vote ? A.
They wanted to vote, but was afraid.

Q. How many people voted there ? A. I counted up 73, and they was voting on ;
I didn't go away, but then I went off down the river a little piece and sot around,
but everybody that talked to me after I come up said they was voting Republican ;
there wasn't but two colored men voted the Democratic ticket, and one of them
wouldn't have done it if they hadn't made him do it ; he was a kind of ignorant sort
of person, and they gave him the ticket and he went on and voted it.

Q. How many men did you see vote that ticket that day at the polls ? A. About
73, I think 73; I counted them particularly.

Q. Did you have the tickets in your hand ? A. Yes, sir ; I had about 125 or 130 of
them ir>0, and 1 reckon I give out about 30 or 40 of them that day, and saw 73 of
them voted, aud stood and looked at them, and saw pretty near every man that voted
that day. I read the ticket and knew I was voting for Harrison.

Q. Who did you think you was voting for Congressman ? A. I just voted the
straight ticket.

Q. Then this is exactly the ticket you voted ? A. Yes, sir.

Q. And this is exactly the ticket that you saw voted by 73 other men? A. Yes,
sir.

Q. And you want to file that with your testimony as the ticket that you did vote ?
A. Yes, sir ; marked Exhibit "A."

Q. Did 1 he Republicans in your township vote more solidly together than usual ?
A. Yes, sir; they voted solider this election than ever I known ; look like the people
had more privilege to vote.

Q. You mean they were more in earnest about it? A. More in earnest, I should
have said about it.

Q. What was the cause of their earnestness about voting at this time more than any
other time? A. I don't know, sir; they just thought it was a Republican election,
and a great many of them was against Mr. Cleveland, and they all come together
and held a meeting, and they all voted solid one way.

Q. Do you know that the returns as sent up to the clerk's office in your county
only gave the Republican ticket count there two votes and the Democratic ticket 59
votes? A. No, sir; I didn't hear anything about that; I thought that the Repub-
licans had all that they put in, and everybody there, I reckon, thought that same
thing.
Q. That is what they have returned, what do you think about that ? A. Well, I

FEATHEKSTON VS. GATE. 101

just think they done wrong ; think they done something they had uo business; I
think there was a fraud in it. Any man of common sense would know as many men
around the polls voting 75 or 80 or 100 men and couldn't get but two Republican
tickets out of them. I'd a voted better than that if4/hey'd had a gun on me.

Q. If the people in your township were voted properly, how many of them would
tnru out and swear to have voted that same ticket that you make an exhibit of,
there? A. 45 or 40 or 45.

Q. There is how many, if they were properly protected; you issued 73 yourself,
you say? A. I didn't issue that many, but I saw that many polled from other hands
that was handed around, and counted them every one.

Q. If they were properly protected, are you satisfied those 73 men would turn out
and testify 'that they did vote that ticket? A. Yes, sir; they would; they'd come
right here to-day and tell you any where.

Q. llow long have you been voting at that precinct? A. Ten years.

Q. And you say the Republican vote there, in a fair election, is about how many ?
A. About 112 or IK!.

Q. And how much you say the Democratic vote is ? A. About 8 or 9, some elec-
tions, in the county elections there's some 15 or 20 or 25 Democrats, 'cause they got
darkies mixed in with them.

Q. Did all of the Republicans that voted vote the Republican ticket at this elec-
tion ? A. Yes, sir.

Q. Was the usual number of Democrats at the polls? A. Yes, sir; most all the
white meu that was there was at the polls; the biggest part of them.

Q. Can you furnish me the names, furnish me a list of these 73 voters that you
speak of as having voted the Republican ticket? A. Yes, sir ; I can do it; I think I
can give every man's name.

And further this deponent sayeth not. (Printed record, pages 216 217.)

Scanlan.

Willis McGee (col.), a witness on behalf of the contestant, being first
duly sworn, testified as follows :

(Tin ballot- box made Exhibit A to this deposition.)

Q. What is your name ? A. Willis McGee.

Q. Where do you live? A. Scanlan's.

Q. What county? A. Crittenden.

Q. What State ? A. State of Arkansas.

Q. How old are you ? A. I am about 39 or 40 years old.

Q. What is your business ? A. Farming.

Q. How long have you lived there ? A. I went there in 1878, been there ever since.

(Ballot-box made Exhibit A to the deposition.)

Q. This tin box, made Exhibit A to your deposition, that I now have in my hand
here, did yon ever see a box like that in the State of Arkansas ? A. I did, sir.

Q. When? A. Time the election was going on.

Q. For what purpose, if any, was the box then used? A. To put votes in.

Q. What election is that that you refer to ? A. The Presidential election. It was
d at both the elections ; at the Presidential election and State and county elec-

on.

Q. Are you absolutely certain it was a box of that precise description that you

w at those two elections ? A. Yes, sir.

Q. Were the judges of that election to which you refer, at which this box or one

st like it was used were the judges of that election Democrats or Republicans?

. Democrats.

Q. What is the usual vote in your township ? A. About 125.

Q. How many Democrats? A. About from 25 to 30.

Q. The usual Democratic vote there is what? A. About 25 or 30.

Q. What is the usual Republican vote of that township ? A. From 100 to 125.

Q. Do you know at that election to which yon refer, do you know how many
Republican votes were cast at that election ? A. No, sir ; I do not know exactly how
many was cast.

Q. How many did you see cast? A. I seen about nine or ten.

Q. You are certain you saw at least nine or ten ? A. Yes, sir ; I'm certain of that.

Q. Do you know the name of those parties to whom you refer that voted the Repub-
lican ticket at the national election ? A. Yes. sir.

Q. Please make a list of those names and file it as Exhibit B to your deposi-
tion. A. I do so.

Q. Did you see those men vote that ticket ? A. I did, sir.

Q. You know it was a Republican ticket? A. Yes, sir.

102 FEATHERSTON VS. GATE.

Q. Were a good many men out at the polls that day Republicans? A. Right smart,
and it was raining, and a heap didn't come.

Q. Was a good many there didn't vote? A. Yes, sir.

Q. What was the reason ? A. The reason was they had a great time in the time of
the county election, and the boys said it wasn't no use in voting ; that they do just
as they choose, and they didn't have no show there; they said they all voted Repub-
lican before solid out through, and they beat them at Scanlan'sand every body voted
Republican at Scanlan's, and they beat them.

Q. Were they counted ? A. Never were counted ; that was the question.

Q. Then I want you to state the reason they didn't take any more interest, and
didn't vote? A. Because they said they all voted Republicans at the election, and
when the outcry come they said everybody had voted Democratic tickets, and they
said it wasn't no use for them to go there to vote; that was the reason.

Q. Are you satisfied that other people voted the Republican ticket besides those
yon saw vote it? A. Yes, sir; they said so, but I knew these I did see vote it.

Q. Do you knowthat they returned for that township only two Republican votes?
A. No, sir.

Q. You iust stated that the usual Republican vote down there was about 125 or
130 ? A. Yes, sir.

Q. Usual Democratic vote is about 25? A. Yes, sir.

Q. Your usual majority there, then, was about 100? A. Yes, sir.

Q. You are satisfied this box was used at both elections? A. Yes, sir.

Q. Who was the Democratic candidate for sheriff' of Crittendeu County? A. Mr.
Warner.

And further this deponent sayth not.

WILLIS (his x mark) McGEE.

Deposition of E. B. Fields (col.), a witness on behalf of the con-
testant, being first duly sworn, testified as follows :

Q. What is your name ? A. E. B. Fields.

Q. Where do you live ? A. I live at Scanlan's, Crittenden County, Arkansas.

Q. How old are you? A. 34.

Q. How long have you lived there ? A. Ever since 1876.

Q. Do you see this tin box that I show you here? A. Yes, sir; I examined a box
of that kind about two days before the election ; helped tote it out towards where my
home is.

Q. Whereabouts was that place? A. Scanlan's.

Q. In whose possession was that box? A. J. J. Ward, a white gentleman living
down there ; a Democrat.

Q. Does he hold any official position tbere ? A. None at all, sir.

Q. Was he one of the judges of the election there? A. Yes, sir ; he was one of the
judges of election at Edrnondson Station.

Q. You said that's the box he had in his possession ? A. Yes, sir.

Q. Did you vote at the Presidential election at your voting place last November ?
A. Yes, sir.

Q. Do you know what disposition was made of your vote ? A. No, sir ; not more
than I carried my ticket in and they took it and kinder folded it up and stuck it in
that box there.

Q. Put it in a box of the same appearance as that ? A. Yes, sir ; same kind of
tupelo as that is. I don't know what route it went, but I see them put it in at the
top.

Q. Do you know what is the vote of that box over there; what is the Republican
vote at your precinct? A. About 100 and 125.

Q. What is the Democratic vote there? A. About 25, sir.

Q. Do you know whether there was any Republican votes cast there that day or
not? A. Yes, sir ; I give several of them tickets, and they sealed them up and said
they was going to vote them just like they was; didn't open them at all.

Q. How many did you give tickets to ? A. I'm certain I give four ; I give tickets
to several, but I didn't know what they did with them ; hut I gave tickets to some
and they held them in their hands like they were afraid they'd get away from them.

Q. Why didn't you take any more interest in the election that day? A. In the
State and county election I got disgusted, and I didn't take no more interest in it
afterwards. It was the fashion to vote and I just thought I'd vote because it was a
fashion ; didn't do any good.

Q. Why not? A. We usually have a great large majority, and the county election
was decided, and the Democrats were 14 or 1,500 ahead, and I didn't think there was
no use for voting because we always voted the same.

Q. What's the reason you didn't have any coutidence in it? A. I didn't think ifc
was counted at all, sir.

FEATHERSTON VS. CATE. 103

Q. How many boxes of this description and fashion did you see over thcie in that
election ? A. Seen two in the county election.

Q. Where were they used? A. One was used at Scanlan's, and the other there
was a tag on it for Eduiondson Station. I looked at the tag myself.

Q. Do you know who sent those boxes down there, these election boxes to which
you refer? A. They said Mr. Warner sent them down there.

Q. Who said so ? A. Mr. Jerry Ward told me so.

Q. Was Mr. Warner the judge of any of the elections there? A. No, sir; he's the
sheriff of the county.

Q. Is he a Democrat or Republican! A. He's a Democrat, I reckon. The colored
people first taken him up.

Q. Were the judges and clerks of this election at which you say these Republican
votes were cast Democrats or Republicans? A. Straight-out Democrats, sir.

Q. All Democrats A. All Democrats, sir.

Q. Were they red-hot Democrats ? A. Right square out, sir.

Q. Were there any disturbance or rows there on the day of election ? A. When
the State and county election was?

Q. Were there any in the Presidential election ? A. No, sir ; it was a kind of a day
like this ; it was raining all day most ; didn't have no fuss that day.

Q. If the Republican voters there had believed their votes would have been counted
do you think there'd have been more people there that day than there was ? A. Yes,
sir'; I think there'd have been more. Always turn out in full force when they have
confidence.

Q. Who was the sheriff before this election ; before the last election ? A. W. F.
Warner.

Q. Was he re-elected? A. Yes, sir.

Q. On what ticket? A. On the Democrat ticket, sir.

Q. And you say he was one of tbe gentlemen who had these ballot-boxes like this
sent down there? A. Yes, sir. (Printed record, page 215.)

Tt appears^from this testimony that John Johnson saw 73 Republi-
cans vote the Eepublican ticket, and that others voted after that; and
that the Republican vote of the township was 112 or 113. E. B. Fields
swears the judges were all Democrats and that they had the fraudu-
lent tin box. Willis McGee swears that the judges were all Demo-
crats, that there was a good turn-out of the Republicans, and that there
was from 100 to 125 Republicans in the township. The return shows
two votes for contestant.

On this state of proof the question is : How many votes should be
allowed the contestant ?

It was held in Bisbee vs. Finley that :

Where the evidence shows a return to be false, and not a true statement of the
votes cast, such return is impeached and destroyed as evidence, and the true vote may
be proven by calling the electors whose names are on the poll-books as voting at such
poll, and no votes not otherwise proven should be counted.

Under this rule, and we know of no exception to it, the return must
be rejected.

The rejection of the return does not necessarily leave the votes ac-
tually cast at a precinct uncounted. It only declares that the returns,
having been shown to be false, shall not be taken as true, and the par-
ties are thrown back upon such other evidence as it may be in their
power to produce in order to show how many votes and for whom; so
that the entire vote, if sufficient pains be taken and the means are at
hand, may be shown and not a single one be lost notwithstanding the
falsity of the returns.

The contestant shows that he received 73, and perhaps more votes,
and these, we think, should be allowed him. Deduct these from Gate's
remaining majority and the vote stands thus :

Cate's majority 911

Deduct the 73

Leaving Cate'e majority 738

104 FEATHERSTON VS. CATE.

The return having been overthrown, and the contestee having failed
to prove any vote in the township, is not allowed the 61 returned for
him.

Cat Island.

In relation to Cat Island precinct the testimony is as follows :

Kobert Abernathy (col.), a witness on behalf of the contestant, being
first duly sworn, deposes as follows:

Q. What is yonr name ? A. Robert Abernathy.

Q. Where do you live ? A. I live at Cat Island.

Q. How old are you ? A. 1 don't know truthfully; I am something over 40, though.

Q. What is ycrur business? A. Well, I farm a little.

Q. Are you a planter? A. Well, I planted last year; I reckon I will some this
year, but then I'm not an extensive farmer.

Q. Can you read and write ? A. Yes.

Q. Did you vote at the last election the national election ? A. I did.

Q. Where did you live previous to that time ? A. Alcorn County, North Missis-
sippi.

Q. How many white people were there ? A. About twenty-five.

Q. And the rest of the voters were all colored ? A. All colored.

Q. Do you know who those colored voters voted for in the last election ? A. Gen-
eral Republicans; nine-tenths of them were Republicans; I heard them say prior to
the time they would vote that ticket under all hazards; then when the tickets were
issued they come there through the rain and got the tickets and went to the island,
and I seed no other ticket during the day but the Republican ticket. There was no
other exhibited publicly.

Q. How do you know the Republican ticket ? A. Well, there wa^s Harrison and
his electors and Featherston on it ; I voted it fora Republican ticket; if I failed I'm
just here under a mistake. We've had them together two or three times since, and
there was only three men that said at each meeting that they did not vote.

Q. You say you voted the Republican ticket? A. I did.

Q. Do YOU kuow whether that ticket was put in the box or not? A. Yes, sir; I'm
most safe in saying it were, and I seen where the chairman .there couldn't see the
box. When I came up a man challenged me and says, " Has Abernathy a right to
vote?" One of the judges of election says "Yes; I have known Abernathy over two
years, he has a right to vote," and he turned and put my ticket in the box; that's
how I come to see it; if he had not turned I would not have seen it.

Q. Were there any Republican judges there at that time ? A. There was none.

George Hendley (col.) a witness on behalf of the contestant, being
first duly sworn, deposed as follows :

Q. What is your name? A. George Hendley.

Q. Where is your residence? A. In Crittenden County, Arkansas.

Q. What is your age? A. bl.

Q. What is your occupation? A. I'm a farmer and sometimes I teach school.

Q. I want to kuow about the usual number of voters in your township ? A.
Usually we have always voted from 196 to 200, always, in the township.

Q. What proportion of them were Democrats; about how many Democrats were in
the township? A. Well, we have generally been known to be about from 14 to 15.

Q. How many Republicans? A. We have been known to be from 180 to 182 and
three and four and so on.

Q. Did you vote on the November election? A. Yes, sir; I did.

Q. Did the Republican voters in your township turn out pretty well ? A. Yes, sir ;
they voted out very well.

Q. You consider it a full vote that day ? A. Yes, sir; I considered it nearly a full
vote; not quite as many as voted in the county election.

Q. Was the regular Republican ticket voted by the Republicans oil that day ? A.
Yes, sir.

Q. Have you got a copy of that ticket with you ? A. I haven't one with me, but I
can describe it ; it was a red ticket with a calico back to it.

Q. Did many of the Republicans scratch their tickets ? A. There didn't any scratch
it as I saw, and I don't believe any scratched it.

Q. Did any of the Republicans to your knowledge vote any other ticket ? A. None
whatever to my knowing.

Q. Were they as much as usual interested in that election ? A. Yes, sir.

FEATERSTON VS. CATE. 105

Q. About what is the usual Democratic vote, did you say, of the township ? A. It
generally has been about from 13 to 15.

Q. That's about as many of the Democratic voters as you have ever known to vote
there? A. Yes, sir.

Q. That pink ticket had who on it for Congressman ? A. L. P. Featherston.

Q. Do you know of any of the Republicans for W. H. Cate for Congressman f A.
I do not.

K ***

Q. Did the Republicans all vote the Republican ticket in the last election? A.
They did as far as I know ; in fact I saw most of 'them all vote ; they all voted it;
they all told me they would vote the Republican ticket; I saw a great many of them
vote it. and the majority of them told me afterwards that they had voted the Repub-
lican ticket.

Q. Was there any special reason why they were more anxious that the Republican
party should succeed in the last election than before ? A. Yes, sir.

Q. What was that reason? A. Because there had been a great trouble occurred in
the county, and the people were very much dissatisfied from the treatment; the Re-
publicans, and more especially the colored; I know they were very much dissatisfied
an. I they wanted all officers elected with Republican men in them.

Q. For what purpose? A. In order that they might get justice.

*****

Q. Where do you live? A. I live in Cat Island.

Q. How long have yon lived there? A. I been living there 7 years.

Q. What is the name of your voting precinct? A. Cat Island. (Printed record,
page 187-8-9.)

George Hendley, in speaking of whether the judges and clerks were
sworu, testifies :

Q. Do you know whether the judges and clerks of election were sworn ? A. If they
were sworn, I don't know who swore them; at that time I were acting justice of
the peace there, and of course I know I didn't swear them myself, and I were the
only justice of the peace that were in the township, and if they were sworn I don't
know who swore them.

Q. Are you justice of the peace at present? A. No, sir.

Q. Were you a candidate at the last election? A. No, sir.

Q. You have no interest in this only to tell the truth ? A. That's my only interest
I have.

George Heiidley, in speaking of the position of the ballot-box, testi-
fies :

Q. Was the box always put where you can see all around it ? A. No, sir ; the box
was in a place where I couldn't see the box; I don't remember of having seen the
box.

Q. Could you see whether your ticket was put in the box or not ? A. I never saw
the box at all; I only handed my ticket in to the man that was setting in the win-
dow, or near the window, and I didn't know whether he put my ticket in the box or

not.

*****

Q. Has the custom there been to put the boxes in such a shape that the voters
couldn't see it when they were voting? A. No, sir; it never was the case before.

Q. Was it this time ? A. Yes, sir ; it was out of sight this time : we couldn't see it.
(Printed record, page 188.)

George Hendley, in speaking of the judges of election at Cat Island
precinct, testifies :

Q. Who were the judges of election in your township ? A. Dr. Stewart and Otto
Sypnlcs, and I forgotten who the others was.

Q. Were they Democrats or Republicans ? A. They were all Democrats.

Q. Did you have any Republican judges of election the last election ? A. No, sir;
we did not.

Q. They were all Democrats? A. All Democrats.

Q. Do you know whether that is the condition of affairs in other parts of the
county or not ? A. I do not know, but I have heard that it was. (Printed record,
page 188.)

It appears from this testimony that the Eepublicans turned out well}
that they did not scratch the ticket j that the fraudulent ballot-box was

106 FEATHERSTON VS. CATE.

r.sed ; that Republicans before the election had met and agreed to vote
their ticket at all hazards ; that there were from 1^0 to 182 Republicans
in the township; that the judges were all Democrats; that there were
not more than 14 or 15 Democrats in the township; that there was a
full vote by the Republicans; that the judges were not sworn ; that the
ballot-box was so placed that the voter could not see it.

The return shows 120 for Featherston and 88 for contestee, and the
question is, under the proof, what ought to be done?

The total vote cast is 208, and the proof is that there are but 35 Dem-
ocrats in the township, and that the Republicans did not scratch their
ticket. By giving the Democrats their full vote, Featherston ought to
have received 193 votes out of the 208, and he is returned as receiving
120.

In view of the conduct of the partisans of the "contestee in Critten-
den County whereby the contestant and his attorneys were prevented
from taking testimony and which will be referred to hereafter, strict
and technical proof will not be required.

We think the true rule was laid down in the case of Smalls vs. Elliott,
session of 1888-'89, by the minority of the committee, where it is said :

Contestee's partisan friends deliberately violate the law in suppressing the box,
and contestee himself (acting through his counsel), by force and threat of violence,
suppresses and hinders the judicial inquiry as to the box and its contents.

Siippressio veriauggestio falxi. All things are presumed against him who sup-
presses the truth and prevents inquiry.

Shall contestee be permitted to take advantage of his own wrong, and of the will-
ful and criminal violation of the law by his partisan friends? Is the sin of the guilty
to be visited on the innocent? Shall he who suppresses the best evidence by force,
fraud, and violence, stand up in the face of the court of last resort and insist that
secondary evidence shall not be produced and admitted ?

In this case, assuming the testimony to be true, and we do not doubt
but that it is true, it appears that before the election every provision
looking to a fair and honest election was violated, and that after the
election every attempt to show the true vote was suppressed by the
partisans of the contestee.

\Ve think the proof clearly shows that the contestee could not have
received more than 15 votes in Gat Island Township, if that many.
Therefore, we give to the contestant 73 votes more than were returned
for him, and deduct 73 from the vote returned for contestee. These
two changes aggregate 146. The result would then stand thus :

Gate's majority 735

Deduct the 146

Leaving Cate's majority 592

Crawfordsville precinct.

In relation to the Crawfordsville precinct the testimony is as fol-
lows :

James Brown (col.), a witness on behalf of the contestant, being first
duly sworn, testified .as follows:

Q. What is your name? A. James Brown.

Q. Where do you live? A. Crawfordsville, Crittenden County. Arkansas.

Q. How long have you lived there? A. Been living there now going on four
years.

Q. What is your business ? A. Farming.

Q. How old are you ? A. The 25 of this coming month I'll be 41 years old.

Q. Did you vote for the national ticket at the election held iu November for Presi-
dent and members of Congress in Crittenden County, Ark. ? A. Yes, sir; my inten
tion was to vote the Kepublican ticket straight out.

FEATHERSTON VS. GATE. 107

Q. Do you know whether you did or not? A. I don't know whether I did or not,
but I voted the ticket that they gave me, that they say was Republican.

Q. Who gave you that ticket ? A. The ticket I voted I got from Henry Davis.

Q. Was he a Democrat or Republican ? A. He was claimed to be a Republican ;
he goes for a Republican.

Q. Do you see this box that I have in my hand here ? A. Yes, sir.

Q. With this peculiar device on top of it here ? A. Yes, sir ; I see that box now.

Q. Did you ever see one like it before? A. I didn't see one exactly like that, but
it had more of a shape come like that ; they had two divisions in it. I seen the
top of the box just like I look at the top of that one now. Two places cut in that box
like it was cut for the tickets to go in each one of those holes; that's the way that
box was ; there was two places in the top of that box.

Q. Then, the box you saw was just like this one? A. Yes, sir.

Q- You saw a box like this one, then, at Crawfordsville that was formed on top for
the reception of tickets like that one is formed? A. Yes, sir; just like that one was
formed.

Q. You say your intention was to vote the Republican ticket? A. Yes, sir.

Q. Did you cast your ballot? A. Yes, sir; I went to the door and handed it to the
man that was placed there to take the tickets.

Q. What did he do with it? A. He cast ifc around to the box ; I seen him carry it
to the place that was to put the tickets in, but whether it went inside of the box I
do not know. We all was standing out in the rain anyway, and wanted to get
through as quick as we could.

Q. Was that the ballot-box ? A. Yes, sir.

Q. Was it made out of tin ? A. Yes, sir.

Q. Then, so far as you could see, it was a box constructed like that ? A. Yes,
sir.

Q. You say you gave your ticket to some one. Who was that? A. A man that was
called Willis Raspberry.

Q. Was he a Democrat or Republican ? A. Well, he's a Democrat.

Q. Do you know the judges of the election that day ? A. Laurin Butler were one ;
Bob Jinley was the other; Jim Hooxbul was the other.

Q. Were any of those men Republicans ? A. No, sir.

Q. Were they all Democrats? A. They were all Democrats.

Q. If this testimony that you are now giving was taken at Crawfordsville would
you testify ? A. I will if I'm living and the Lord spares me.

Q. Have you ever seen any of these boxes anywhere except at Crawfordsville ?
A. No, sir.

Q. Do you know what became of the ballot-box there after that day ? -A. No, sir.

Q. You say your intention was to vote the Republican ticket ? A. The Republican
ticket straight out, the ticket that they say Mr. Featherston was on. That was a
red ticket. That's the ticket I voted.

Q. Do you know whether the negroes of that county whether they intended to
vote the Republican ticket or the Democratic ticket ? A. Their whole intention was
to vote the Republican ticket straight out. Our intention was before we started,
before the election come to an end our intention was to vote the Republican ticket
to beat out that Winchester crowd. That was our intention.

Q. Who was that Winchester crowd composed of ? A. Andrew Martin and Sheriff
Werner.

Q. Were they Democrats or Republicans? A. Democrats. (Printed record, page
218-19.)

Giles Shenault (col.), a witness on behalf of the contestant, being first
duly sworn, tstified as follows :

Q. What is your name ? A. Giles Shenault.

Q. Where do you live ? A. Crawfordsville, about three miles southwest of Craw-
fordsville, Crittendon County, Arkansas.

Q. How old are you ? A. Nearly 52.

Q. How long have you been there? A. Going on eight years.

Q. Did you vote at the last Presidential election held in the State of Ark. in No-
vember, 1888? A. Yes, sir.

Q. Did you vote the Republican or Democratic ticket? A. Well, I voted the red
ticket they called the Republican ticket.

Q. What ticket did you intend to vote, the Republican or Democratic ticket? A.
The Republican ticket's what I was after.

Q. Do you see this tin box that I have in my hand here F A. Yes, sir.

Q. Did you ever see one like that before ? A. I think that one we had right yonder
was like that.

Q. What do you mean ? A. At Crawfordsville.

108 FEATHERSTON VS. GATE

Q. What time did you see it there ? A. The morning of the Presiiloutial election

Q. That took place when ? A. In November.

Q. What year ? A. 1888.

Q. Where did you see that box that you mention ?- A. I saw it there in the drug
store.

Q. Whose drug store ? A. Dr. Haden's.

Q. For what purpose was that box being used ? A. They said it was a ballot-toox,
had the tickets in there.

Q. You say you voted the Republican ticket that day? A. That was my aim ; I
voted the ticket they called the Republican ticket.

Q. What became of that ticket ? A. I don't know what went with it ; I handed
it to a man setting at the box, and he poke it down there. I don't know where it
went.

Q. Was the box he put the ticket in precisely like this? A. I never seed nothing
took off of the top like that the mouth imitating that.

*******

Q. Who was the gentleman you gave your ticket to, that put it in the box? A.
Raspberry.

Q. Is he a Democrat or Republican ? A. He's a Democrat, I reckon ; what we call
him.

Q. Was he one of the clerks of the election that day ? A. Yes, sir ; he was in there
with them ; he was constable ; he was the man that showed the box, 'cause he opened
it; pulled it open, and turned it over that way as you see there, and no tickets in it;
that Avas Raspberry ; he was considered to be the constable there, and I was the first
man that voted, and it was raining, and I handed the ticket in to him, and stepped
right back ; wo was very much crowded ; it was pouring down rain, and he took the
ticket and appeared to be putting it down in the box that way. (Printed record,
page 212.)

It appears from this testimony tbat the fraudulent tin ballot-box was
used; that the judges of election were all Democrats ; that there was
a good turn out, the total vote polled being 395.

It was at this township the contestant went to take testimony and
was prevented from so doing by the friends of the contestee.

The nearest approximation to proof of how the vote stood, in that
township, is found in the testimony of E. D. Sanders (page 200) where
he says that the vote of the Republicans is about 6 to 1 of the Demo-
crats, and when interrogated, as toCrawfordsville, he says that would
not be a fair proportion for that township, nor does he say what would be.

The return from the township shows the following:

Cate 88

Featherston 147

Barrett . 160

Total 395

It does not appear from the record who Barrett is, or what party put
him in nomination, or whether there is any such man.

Had the contestant made proof of any vote received, as was done in
Scanlan and Cat Island, we would set aside the return and give him
the vote proven ; but he has not done so. If we should set aside the
return it would have to be done on suspicion, or from the fact that re-
turns should not be regarded where the use of a fraudulent box is
shown, and that the judges of election were all of the Democratic party
in a strong Republican township. To set aside the return in a township
where the contestant has a majority, but not as great as he claims it
should be, in a case where he was prevented from making full proof of
his vote, would be to reward the fraud complained of. and punish him for
undertaking to expose it. Where there is no proof upon which we
would be justified in setting aside the return, we therefore let it stand.
As both parties have had credit for this vote, it .having been certified
to the secretary of state, it makes no change in the majority.

FEATHEKSTON VS. GATE. 109

No election at Tdlewild precinct.

George Heudley, in speaking of the failure to hold an election at Idle-
wild precinct, testifies :

Q. Is there any other voting precinct in yonr township ? A. Yes, sir; Icllewild.

Q. Do yon know whether there was auy election held at Idlewild? A. There was
not.

Q. Do you know whether the judges of election at that point were all Deraocratsor
all Republicans? A. They were all Democrats.

Q. What was the conclusion of the people of that precinct was the reason for not
opening the polls ? A. The conclusion was because that all of the people there, the
voting citizens, was going to vote the straight Republican ticket, and in order to pre-
vent them from voting, it was supposed they wouldn't open the polls that day.

Q. Did any of the voters come down to your precinct to vote? A. Yes, sir; about
12 or 14.

Q. Did they tell them that the polls were not open at Idlewild? A. Yes, sir; they
did.

Q. And thought that they could vote there because it was in the same township ?
A. *Yes, sir.

Q. Were they allowed to vote? A. Well, I couldn't really say that they wasn't al-
lowed, because I met them as I were coming away, but they told me that they was
objected to voting.

Q. You d'n't know whether they voted then or no^? A. I know that they didn't
vote ; they said they was objected of voting by some one ; I don't know who.

Q. How many men told you they were at the polls that day for the purpose of
voting the Republican ticket? A. About 26.

Q. Can you furnish their names? A. I can.

And further this deponent sayeth not. (Printed record, page 188-9).

No polls opened in Ferguson.

Thompson Foster (col.), a witness on behalf of the contestant, being first duly
sworn, testified as follows:

Q. What is you name? A. Thompson Foster.

Q. Where do you live? A. Crittenden County, Arkansas.

Q. How long have you lived there? A. Ever since 1870.

Q. How old are you ? A. 28.

Q. What is yonr occupation? A. Farmer.

Q. What is your usual voting precinct? A. Ferguson precinct.

Q. Was there any election held there on the sixth day of November last ? A. No,
sir.

Q. Were you at the polls to vote ? A. Yes, sir.

Q. Were the judges of election who served at the State election all Democrats or
Republicans? A. They all was supposed to be Democrats.

Q. They didn't come about the polls to open the polls during the day ? A. No, sir ;
not to my understanding, or not to my knowing ; never saw any of them.

Q. What was the Republican majority in your precinct generally? A. About 120
or 125.

Q. What proportion of them were at the polls during that day for the purpose of
voting ? A. Off and on all day, aboat a hundred to my knowing.

Q. They came there for the purpose of voting ? A. Yes, sir.

Q. And the polls not being open they couldn't vote? A. Yes, sir.

***##

Q. About what is the Democratic vote of your township? A. There is about six or
eight.

Q. Were they out that day to vote? A. No, sir. (Printed record, page 205.)

Furgeson.

T. J. Jonrs (col.), a witness on behalf of the contestant, being first
duly sworn, testified as follows :

Q. Where do you live? A. I live in Proctor Township.

Q. Whereabouts? A. I live there at Ferguson's.

C. What State and county ? A. Crittenden County, Arkansas.

Q. How long have you lived there? A. About 21 years.

110 FEATHERSTON VS. CATE.

Q. How old are you ? A. About 29.

Q. What is your business? A. Farming.

Q. Where is your usual voting place? A. Ferguson's, tliough I vote at Jones's on
the national election Presidential election ; my usual voting place is at Ferguson's.

Q. But the Presidential election you did vote at Jones's? A. Yes, sir.

Q. Were you down at Ferguson's during the day? A. Yes, sir; I was at Fergu-
sons during the day ami at Jones's ; was at Ferguson's first.

Q. How long were you at Ferguson ? A. About two hours, I reckon.

Q. Were there a good many people there? A. Yes, sir.

Q. Anxious to vote ? A. Yes, sir ; they were strung all around there ; seemed to be.

Q. About how many came to the polls to vote at Ferguson while you were there ?
A. During the day, about a hundred.

Q. Did you know all of the people ? A. No, sir; I didn't know all of them ; I knew
one part of them.

Q. Was that the larger part of them ? A. Yes, sir ; that's a large body of them.

Q. What were their politics; were they Republicans or Democrats? A. They all
was Republicans.

Q. They all turned out to vote ? A. Yes, sir; all but about a few white men was in
the crowd; they was Democrats.

Q. How many Democrats do you imagine was in the crowd? A. I didn't see any
of those white men at the polls, but in that precinct four or five of them was Demo-
crats. All the judges, pretty well, live there in that voting precinct are Democrats,
but I didn't see them all during that day.

Q. The voters that you saw at the polls then were all Republicans ? A. Yes, sir;
all Republicans.

Q. You think you saw about a hundred there ? A. About a hundred.

Q. You been voting at that precinct for several years? A. Yes, sir.
Q. The Republican vote there is usually how many ? A. Well, it's about 120.
Q. Were the judges of election for that township Democrats or Republicans ? A
They was all Democrats pretty well, 1 think.

Q! Did you hear any reason given for the judges not opening the polls on that day?
A. Didn't hear no reason at all; I did at one time, but I didn't pay much attention
to that. Some says that Col. Armstrong wasn't there the reason the polls wasn't
opened, and I understand that Col. Armstrong were in town Memphis here though
he had been notified that he was judge of that election.

Q. Did he serve as judge in the State election ? A. In the county election he did,
but not in the national election Presidential election.

Q. If the polls had been open there all day long as they usually were and ought to
have been on the day of election, from what you know of your 21 years' residence
there, and of the citizens around, what would have been the majority for Harrison
and Featherstou in that district? A. About 115. (Printed record, page210.)

S. B. Rushing (col.), a witness on behalf of t he contestant, being first
duly sworn, deposed as follows:

Q. What is your name? A. S. R. Rushing.

Q. What is your age? A. About 38.

Q. Where do you live? A. Jones's.

Q. What county ? A. Crittenden.

Q. What State ? A. Arkansas.

Q. Did you vote at the last national election? A. No, sir; wouldn't let me vote.

Q. How did they keep you from voting? A. Said I didn't live in that precinct.

Q. Your vote was challenged, then? A. Yes, sir.

Q. Was the election at your regular voting place? A. Twasn't held.

Q. Why was it not held? A. I don't know, sir; didn't hold it there.

Q. Do you know whether the majority of voters in your precient how they stood
whether they were usually Democrats or Republicans? A. All of them was Repub-
licans but about six.

Q. You say there was no election held there at all? A. No, sir.

Q. Was the State election held there? A. Yes, sir.

Q. No national election? A. No, sir.

Q. Were the judges Democrats or Republicans? A. All of them were Democrats.

Q. You refer to the State election now ? A. Yes, sir.

Q. What is the usual number of votes polled at that township precinct ? A. About
130.

Q. What proportion of them are Republicans? A. All of them but about five or
six.

Q. Were most of them at the polls that day and anxious to vote ? A. They told me
they were there all day. I was there trying to get the election held, and never got
it. I was supervisor, and after I was notified that I was supervisor I went to the

FEATHERSTON VS. GATE. Ill

polls in order to know the reason or see that there was- an election held there. I was
appointed by the proper authorities, and I went there for the purpose of having some
kind of an election. No judges came, and there was no election held.

Q. When you got to Ferguson's and found you couldn't vote found that the polls
were not open you went to Jones's for the purpose of voting ? A. Yes, sir.

Q. And there you were denied the right to vote? A. Yes, sjr; none of us voted
at all.

Q. Were there any poll-books or a ballot-box furnished to any one that you know
of in Ferguson precinct ? A. There was a ballot-box sent to me at 1 o'clock the same
day ; it was about 1 o'clock. I was in my store ; bad a clock in there, and the bal-
lot-box come there ; the fellow came ; he looked like he came in haste. He come
there with the ballot-box and poll-books and everything; says, " I want you to hold
election at Ferguson's;" I says, "I ain't the judges." " Well," he says, " you are
appointed as supervisor." Isays, "I haveno notice of that." "Well," hesay-, "it's
in this thing." And I took it and looked in there and I saw I was appointed supervisor
at Ferguson's and Jones's. I thought that was a mere mistake: I dou't know how
I come at two places, but then my name was on at Ferguson's and Jones's, and I
thought it was very necessary to vote for Harrison as President, and I wanted to vote
the whole ticket, especially Featherstoue ; wanted to vote the whole ticket. We
voied the State and county ticket solid Republican. There wan't but six men went
against us at that precinct, and we voted 128 or 30 there. The reason I didn't hold
the election was because I sent it to the judges of the election ; I thought they were
elected for a certain term under proper authorities ; I sent it to them and ordered
them to open the polls immediately, that I was going to hold an election. There was
none held at all. There was people coining there all day ; I reckon there was more
than 25 or 30. I reckon there was more than them ; of course I counted that many
citizens of the county, and there was citizens of the United States, and we couldn't
vote.

Q. If the polls had been opened there early in the morning, according to law, what
would have been the majority given to Harrison and to Featherstou ? A. They'd
have got about 125 votes apiece.

Q. What would have been the Democratic vote there ? A. About six or eight.
(Printed record, 206-7.)

The townships of Idlewild and Furgeson may be treated together.
The proof shows that the judges of election at Idlewild were Demo-
crats ; that they failed to open the polls, and that the Republican ma-
jority in the precinct usually ranged from 100 to 125. It also shows
that at Furgeson the judges of election were all Democrats; that they
failed to open the polls, and that the Republican majority in the pre-
ciuct is 115 ; i. e., this had been the usual Republican majority.

We know of no rule by which these votes can be counted under the
state of proof as to these townships. The action of the Democratic
judges in these precincts no doubt deprived the contestant of some-
where about 250 majority : but it is no worse, in fact not nearly so bad,
as the conduct of the judges of election in Scanlan, Cat Island, and
Crawlbrdville in the use and manipulation of a fraudulent ballot-box.

It is nearer on a level with the action of the county court clerk already
referred to, who willfully failed to certify the vote of seven townships
to the secretary of state. Nor is it quite as bad as the action of the
county judge who appointed such creatures of a conspiracy as judges
of election. But it does show that the conspiracy formed in July, 1888,
to control the county of Crittendeu politically, with less than one-sixth
of the legal voters, was still alive and active in November in depriving
the Republicans of their votes.

What made the Republicans poll a full vote at the November election.

Jordan Teates, in speaking of the vote polled at the Congressional
election, testified :

Q. What made them stick closer together than usual? A. Upon the action of the
Democrats with the Winchesters; that's just exactly why we stuck so close, seeing
how cruel those men, undertaking to take the advantage of men, because they wanted
them out of office.

112 FEATHERSTON VS. CATE.

Q. Do you think they stuck as closely together in the national election? A. Yes,
sir; they stuck just as close in the national election.

Q. You think they were specially anxious to see a Republican President elected ?
A. Yes, sir; they had it on their minds if they carried that election they pi'obably
would be able to obtain justice.

Q. The Republican vote, then, you are satisfied, in Crittenden County, in the two
last elections has been more solid than it has been for years ? A. More solid than it
has been in 20 years.

Q. Repeat in as short a way as you can, your reason for thinking that? A. My
reason for thinking it was just this: It was just simply for the way that the Demo-
crats did, They taken, for the sake of getting in possession of the office, they taken
their guns, raised up an excuse against our leading men that we had there, Dave
Ferguson and Dan Louis ; they felt that was the only way they had to coine in power,
was to get up some excuse against those men to drive them away and all their fol-
lowers; that was our opinion ; that caused us to stick together so close ; that those
men did that for the purpose of frightening the election so as to frighten the others
so they wouldn't try to arrest their actions at all, and we were determined to show
them that it was allowed to us to vote and we intended to execute that right, and
that was the feeling with the people generally, that they all turned out and voted
when they had a chance, and all voted in the national election the straight Republi-
can ticket. (Printed record, page 194.)

William Koyster, in speaking on the same subject, testified :

Q. Why did the colored members of the Republican party poll such a large vote
and stick so close in the national election ? A. Because the men that they had had
there for leaders I suppose they had a great deal of confidence in was hurried away,
and they made the brag when they got up the Winchesti r crowd that they had the
snakes [tail] oft' in the morning and the head would die by sun-down; and that was
the motto what drew the people together ; and they said if they had cut the snake's
head off they would come nearer together than they were before.

Q. What did they expect from the Republican party if it got into power ? A. I
,don't know, sir ; they expected to get some civil law in the country ; there is no law;
because we expected to get some relief from the condition of affairs that prevail ; to
get some relief from the condition of affairs that prevail now.

And farther this deponent saith not. (Printed record, page 191.)

J. L. Fleming, in speaking on this subject, testified :

Q. Do you know whether the colored people of Crittenden County vote the Repub-
lican or Democratic ticket ? A. The colored people of that county vot.e the Repub-
lican ticket, and they voted more solid last year than they ever did.

Q. Why? A. Because they understood that the action of that Winchester crowd
was for political purposes, and they intended to vote solid Republican more than
they ever had done before because they saw the advantages that the whites tried
to take of the colored Republicans.

Q. What were those advantages? A. By driving the leading Republicans out of
the county they thought that the colored people would have no leaders.

Q. These leaders that you speak of, did they, in their advice to the colored people,
advise assassination, or incendiarism, or taking advantage of anybody ? A. No, sir;
we advocated a fusion ticket in that county politics. (Printed record, page 196.)

E. D. Sanders, in speaking on this subject, testified :

Q. How was it with regard to the Republican vote; was it at all divided ? A.
Not at all, sir.

Q. Was there any reason why it should have been nearer a unit than it had been
in years before ? A. Yes, sir ; there was, from the simple fact those men calling them-
selves the Democratic nominees had nominated over the Republican there, and
brought out Winchester rifles ; made all kind of threats that they should not even
nominate a ticket, and this brought them more closely together; I know it to be a
fact in the last election we had there. For several years the Republican ticket lias
been considerably divided, and that was done through the farmer who was controlling
labor. Some of them, you know, would have a liking for the man they was working
with, and would vote for him, but on this occasion they had no friends among the
party at all, and therefore they consolidated and voted solidly.

Q. What was your experience as to the reliability of the nigger standing up to his
friends and voting his tickets in the State election ; what was your experience in this
election ? A. Well, I think they stood right up and turned out fully and voted for
their friends ; our precinct polled a heavier vote in the State and in the last election
than it has there for several years.

FEATHERSTON VS. GATE. 113

Q. Then you think the reason for it was to resent the tinjust treatment which they
considered they had received at the hands of the so-called Democratic party man ipu-
lated by the Winchester rifle crowd ? A. I do ; I'm satisfied of it. (Printed record
page 199.)

The following testimony gives a detailed history of the efforts of the
contestant to take proof in Crittenden County, and that he was pre-
vented from so doing by the partisan friends of contestee.

W. B. Eldridge, being first duly sworn, testified as follows :

Q. What is your name, place of residence, age, and occupation ? A. My name is
W. B. Eldridge; '28 years of age; occupation, lawyer, and residence, Memphis, Tenn.

Q. Are you a Republican or Democrat? A. I have never voted anything, and
never will vote anything but the Democratic ticket.

Q. Were you one of the attorneys for L. P. Featherston, and did you gotoCritten-
deii County recently to take proof for him in the contest between him and Gate? A.
I was one of his attorneys and did go for that purpose.

Q. Mr. Eldridge, what sort of reception did you meet with from the people over
there ? A. I was not received at all.

Q. What do you mean by saying you was not received at all ; and please &ate
how you were treated by the people over there; state fully. A. The people seemed
displeased at my presence there as the lawyer of Mr. Featherston, and I was not in-
vited in their places of business or residences, or in any way was I shown that com-
mon politeness which the citizens of a town are supposed to extend to a stranger who
is there on legitimate business.

Q. What town was this? A. .Crawfordsville, Crittenden County, Arkansas.

Q. You say you were not invited into any place of business or any house ; what was
the condition of the weather at this time, and did you suffer any inconvenience on
account of this inhospitality ? A. My associate counsel, Mr. Henry F. Walsh, and
myself were together ; we remained there about two days and a night. The first day
it was bitter cold, which we spent in a saloon with the doors open and no place to sit ;
the second day was spent under the cover of the porches of the stores. We did this
because we had nowhere else to go, and no one invited us in out of the cold and weather.
Wo had some difficulty in getting anything to eat, which we finally secured from ne-
groes, who allowed us to eat it in an open room adjoining where it was cooked. We
came very near freezing here. This was a negro eating-house ; such a place I was
never in before. The night coming on, we looked in vain for a place to rest, and I
thought we would have to pass it in the open street. We finally induced a negro by
the name of Logan to allow Mr. Walsh and myself to pass the night on a lounge in a
room of his house, which was about half a mile from town. We received the only
courtesy from this negro and his wife that we had there at all.

*##* *

Q. Mr. Eldridge, in all of your experience as a lawyer, have you ever received such
impolite treatment as you experienced during >our trip to Arkansas on this occasion
that you speak of? A. I never did, and hope it never will be repeated.

Q. "Have you ever, in your experience as a lawyer, or in any other capacity, in
traveling through the South, been forced to take your meals and lodging with ne-
groes ? A. I never have ; I was born and raised in the South, and have never met
with Southern people who did not have hospitality and common politeness before ;
that was the first day's experience ; here's the second day's experience coming on.

Q. You speak of the second day ; what happened on that day ? A. We awoke sec-
ond morning and found i;'i raining; walking through the mud back to town we got
our breakfast at the same place; and standing out on the porches of the stores we
had a;am to endure the inclemency of the weather.

Q. What sort of treatment did Mr. Featherston receive? A. Mr. Featherstone ate
with us at this negro eating-house to which I have referred ; I do not know where he
passed the night, as he said he had to go to tile country to sleep anywhere. The peo-
ple were very bitterly opposed to Mr. Featherston's making an investigation of the
election, and we hourly anticipated that we would have trouble.

Q. Did you hear any threats made? A. Yes, sir; I heard Richard Cheaton and
Dr. Hadeu make threats.

Q. What did they say ? A. I heard them say that they did not intend to submit
to an investigation of the election, and at one time I thought that Mr. Featherstou
would become involved in a serious difficulty with a man by the name of Dr. Haden,
who seemed very much excited over our presence on the ground. I went up to the
crowd where Mr! Featherstou was surrounded by Dr. Hayden and his frieads and car-
ried him off to prevent a difficulty which I feared.

Q. Did any of the men about the saloon seem to be excited from drink ? A. Well,
pow, I don't remember whether any of them seemed to be excited or not.

Q. Were they drinking? A. Oh, yes.

H. Mis. 137 8

114 FEATHERSTON VS. GATE.

Q. They were all drinking, were they ? A. Everybody was drinking pretty much.

Q. Did you all get warning from anybody over there I A. I don't know anything
about that.

Q. Did you all go over with Mr. Berry, the lawyer of Mr. Gate, and did he say any-
thing about acting as notary public f A. He said he would act as notary public,
which aiterwards he refused to do,

Q. Did yon all take any depositions there ? A. We did not.

Q. VVhat was the reason for not taking the depositions ? A. He could not get a
notary public, (here was a magistrate there, but he also refused to act, and Mr. Berry
now refused, contrary to his promise and our expectations.

Q. Now, Mr. Eldridge, please state from your information and from what you act-
ually observed in the conduct and the general feeling among the white people of
Crawfordsville, whether there was actually danger in attempting to take depositions
for Featherston ? A. I think there was danger of personal altercations which might
have resulted disastrously. The people were displeased with our presence there, and
I saw that ii' we took depositions at all we would have to do it contrary to their
wishes or assistance, besides that, we could not get a notary public, and that made
the taking of depositions of course impossible. (Printed record, pages 226-227.)

J. W. Wymme, on this subject, says :

Q. Do you think you would give this testimony that you are now giving if this in-
vestigation was held in Crittenden County ? A. I rather think I wouldn't, sir.

Q. Why would you not? A. I'd be feared.

Q. Afraid of what ? A. Them fellows might kill me.

Q. What fellows ? A. Those fellows that got those guns that military company
over there.

Q. Do you think that any considerable number of voters would have given their
testimony in this case if the investigation had been held at Crawfordsvillo ? A. No,
sir; they'd have been afraid to have done so. (Printed record, page 204.)

E. Y. Logan, on this subject, testified:

Q. Do you remember advising Mr. Featherston that it would be best for him not
to take testimony there in Crawfordsville at all, and to let the matter alone there?
A. Yes, sir.

Q. What was your reason for that advice? A. Well, I knew one thing, that the
people was afraid to testify.

Q. Why were they afraid to testify? A. Well, from the general appearance of
things they didn't feel free to testify.

Q. Have you heard any threats made there by the people of Crawfordsville in re-
gard to people testifying ? A. No, sir ; I didn't hear any threats made there myself,
that is. from what they said ; others told me.

Q. You heard tuat there were threats made, you mean? A. Yes, sir.

Q. Do you know the general feeling of the people of Crawfordsville towards Mr.
Featherston? A. No, sir; I don't really know.

Q. Do you think that Mr. Featherston could have satisfactorily carried on an ex-
amination there in this Congressional contest ? A. No, sir; I don't think he could.
(Printed record, page *219.)

E. D. Hilderbrand (white), a witness on behalf of the contestant,
being first duly sworn, testified as follows :

Q. What is your name ? A. E. H. Hilderbrand.

Q. Where do you live? A. In Crittenden County, near Crawfordsville, Ark.

Q. How long have you lived there ? A. Seven years.

Q. How old are you ? A. 53.

Q. What is your business ? A. Farmer.

Q. Have you ever held any official position in that State or county ? A. Never
have.

Q. Do you remember about three weeks ago when the lawyers of Mr. Featherstou,
Mr. Walsh and Mr. Eldridge, came to Crawfordsville with Mr. Featherston for the
purpose of taking this testimony we are now taking ; do you remember that time ?
A. Yes, sir.

Q. Was that testimony taken at that time ? A. It was not.

Q. Why not ? A. Well, owing to the feeling of the people and the excitement that
was gotten up the appearance of Mr. Featherston and his coming there created
quite a commotion, when his business was known especially ; a good many v. ere right
smartly excited, but I never had heard anybody express themselves as to whether
they was or was not ; I saw there was a good deal of feeling.

Q. Do you mean to say the people felt uneasy and angry on account of the appear-
ance of Mr. Featherstou and his lawyers on the ground for that purpose? A. I
judge so.

FEATHEKSTON VS. CATE. 115

Q. Was their feeling opposed to Mr. Featherston? A. Yes, sir ; a good deal of it ;
there was a good deal feeling among all parties, those for and against, but that
showed itself the most was those that were opposed to him.

Q. Do you know whether Mr. Featherston and his lawyers were received there
with courtesy or not ? A. I do not know ; I went up there that morning from home ;
I didn't have any idea of seeing Mr. Featherston ; he was about the third man I saw
after I got there ; I was surprised at his coming ; he had been there an hour or two
when I saw him; as to how he was received, I couldn't tell you.

Q. You say that the people of Crawfordsvillo were very much opposed to Mr.
Featherston taking his testimony there, you think, from the general manner of the
population there ? A. That would be my decision.

Q. Do you think that Mr. Featherston could have induced witnesses to have tes-
tified at Crawfordsville as to his election with any degree of satisfaction ? A. No,
sir; he might have gotten a few that had the nerve, the majority of them were
afraid ; the majority of voters that voted lor him would not have went there.

Q. You say you do not think he could have procured witnesses to testify for him.
Why ? A. Because they were afraid.

Q. What were they afraid of? A. Well, sir; we are blessed with a military com-
pany in our county, and those people muster frequently and carry guns, and they
show a kind of a disposition that things must go the way they say. That's what I
judge. Most of the people have never had any experience in fire-arms, especially when
they have them pointed at them ; are a little afraid of these sorts Oi things.

Q. You say you have a military organization, in your county ? A. I reckon it's
regularly organized ; I don't know ; they meet and muster regularly, aud have their
uniforms.

* * * # * *

Q. Did yon advise Mr. Featherston to continue that investigation or leave there ?
A. My advice was to leave there. I urged the matter on him; took him home with
me especially for that purpose.

Q. Why did you advise him that ? A. Because I was better acquainted with the
people than he was, and I could see from the feeling and the interest that seemed to
be gathering around that it was better for him to Itave there. I was satisfied of one
thing that if he persisted in the course he had started out on, there would be a dis-
turbance.

* * *****

Q. Did there seem to be much drinking among the opponents of Mr. Featherston
the day he was there with his attorneys? A. There was right smart towards the
middle of the day, and from that towards evening; in fact, they began to drink
right smart soon after it was well understood he was in town and what his business
was. There were several of them that were right smartly under the influence of
whiskey.

Q. Did you at any time during that day see Mr. Featherstou surrounded by the
men of whom you speak, in a position that you thought was at all calculated to
break the peace, and did yon anticipate anything? A. Well, I don't know hardly to
answer that question ; I didn't want to think that the peace would be broken, aud I
wasn't certain that it wouldn't be; that's just exactly the situation I was in.

Q. But you finally concluded it would be if he staid there, did yon not ? A. I ad-
vised him to that effect; I believed it. (Printed record, pages 20i, 202.)

J. P. Broadenax, in speaking on this subject, testified:

Q. In this county it's necessary for us to take this testimony, and we want to know
if, under the feeling existing in that county, you think those people feel sufficiently
aud free to turn out and give evidence and appears as we are doing here? Do you
think that they would like for this testimony to betaken inside of Crittenden County,
and would like to come and testify ? A. They say not. There has been some talk of
you coming over there and taking testimony, and a good many of them said they
wouldn't turn out; thought probably there would be some trouble after it was over.

Q. Why did they imagine or think there would likely be trouble? A. Well, from
the past trouble, I suppose.

Q. Is there any evidence that those fellows intend to do any better? A. 1 don't
know, sir.

Q. Have you seen any evidence o^ it? A. Well, no, sir; I have not.

Do you hear that they have abandoned that Winchester busiriehS, or do you know
or have you heard that they are keeping it up? A. Well, I heard that they aban-
doned it, sir, and I heard again that they had their Winchesters here.

Q. You think, then, that if I want to take any testimony iu Crittenden County
I'd better send this young gentleman with the machine and lawyer, and stay away
myself? A. Well, I don't know, Mr. Featherstone; I don't think you would be safe;
etill I don't know whether you would or not. (Printed record, page 108.)

116 FEATHERSTON VS. CATE.

E. D. Sanders, in speaking on this subject, testified :

Q. Under ordinary circumstances it would be necessary for us to take these depo-
sitions within Crittendeu County. What is your impression as to the result of such
a procedure in that county now? A. I don't think you could possibly do it under
any circumstances.

Q. Why not? A. 'Simply because you would be assassinated if you attempted it.
More than that, you couldn't get the men to come up there and give in their depo-
sitions.

Q. W T hy would they object ? A. From fear of those Winchester rifles.

Q. Where are you from f A. Well, I was born in Tennessee, in some near county ;
my father moved from there to Mississippi wheu I was about three years old ; alter
that I went back to Lebanon to school, and was there four or five years. 1 spout all
my life in Tennessee, Mississippi, and Arkansas.

Q. Are you a Eepublican or Democrat? A. Well sir ; from this day till I die, I'm
a Republican.

Q. What have you been heretofore? A. I've always voted the Democratic ticket,
sir; ever since I first voted. (Printed record, page 2UO.)

Jordan Yeates, in speaking ou the subject of whether witnesses would
feel safe in testifying, swears :

Q. I want to ask if the mass of the voters of Crittenden County, the colored voters
feel free to tell what they know, aud how they voted in these past elections in Crit-
tenden County ? A. They wouldn't feel free to do it generally, simply because they
don't feel they would be safe by so doing.

Q. Do you think it would be safe for that community for us to do, either in Critten-
deu County iu Crawfordsville, what we are doing here ? A. No, sir ; I don't.

Q. What is your opinion would be the result of it ? A. Well, there'd be a great ad-
vantage taken ; I don't know but what there'd be somebody killed to-night; if not
they would be chased mightily; have to leave there. (Printed record, page 194.)

J. L. Fleming, in speaking on this subject, testified :

Q. Do you think it would be safe personally, for you to give this evidence now in
Crittenden County, that you are giving here in Memphis, Tenu.? A. No, -sir; I
wouldn't feel very safe to do it. (Printed record, page 195.)

Houston White (col.), a witness ou behalf of the contestant, being
first duly sworn, testified as follows:

Q. What is your name ? A. Houston White.

Q. Where do yon live? A. Orittenden County, Arkansas.

Q. How old are you ? A. About 31 years old.

Q. How long have you lived in Ark. ? A. About 19 years.

Q. What is your business ? A. Farming aud preaching.

Q. Were you in Crawfordsville sometime since when Mr. Featherston and his at-
torneys, Mr. Walsh and Mr. Eldridge, were there for the purpose of taking investiga-
tion ? A. I was.

Q. Was that investigation taken ? A. It was not.

Q. Why not ? A. Because the threats by the white people had scared the colored
population in such a way they was afraid to come aud give their depositions.

Q. You think the colored people would have testified there, if that investigation
had been taken ? A. No, sir ; they would not.

Q. Do you think Mr. Featherstou or his lawyers would have been safe if they con-
tinued there in the investigation ? A. No, sir.

Q. Why ? A. On account of the feeling of the Democratic party against them.

Q. What was that feeling t A. They wanted Mr. Gate to have the office, and they
knew Mr. Featherston had the majority of votes and they would have, everybody
believed, assassinated Mr. Featherston and all his friends before they would have suf-
fered it.

Q. Did you hear any threats that day ? A. I did.

Q. Who made it? A. Mr. Hayden.

Q. What did he say ? A. He said the election that had been there was over and
there wasn't going to bo any more no more elections nor depositions taken or noth-
ing else, aud before there would be he would see his blood in that street, aud Mr. Dick
Chetom said, " You bet there won't."

Q. Did you anticipate there would be a difficulty there that day when Mr. Feath-
erston and his lawyers were there? A. I did so, and felt very uneasy for Mr. Feath-
erston and his lawyers, and quite uneasy about myself, because I had been a friend
of Mr. Featherston's in the national election, and voted for him, and they knew it

FEATHEESTON VS. GATE. 117

and they seen me with him I knew they would be angry about it ; they made some
threats in regard to me publicly that day.

Q. What were those threats? A. That if I didn't keep my mouth I'd have to hunt
a new home.

Q. Do you know whether Mr. Featherston and his lawyers were received there po-
litely by the people or not? A. They were not.

Q. Where did they pass their time during their stay? A. The lawyers with a col-
ored man by the name of E. Y. Logan, and Mr. Featherston was at Mr. Hilder-
brand's.

Q. Have you heard of any other threats having been made towards the friends of
Mr. Featherston there by the Democratic party ? A. Not directly ; only through
other parties. I've heard some remarks that's been made that Mr. Featherstou and
the lawyers wasn't going to come back there any more, and they had given them a
warning when they came out there; and they was gone, and tho darkies needn't be
expecting them or talking for them, because they wasn't coming back.

Q Who heard that statement? A. Henry Davis.

*******

Q. Do you think that these witnesses would have testified if this investigation had
been carried on at Crawfordsville ? A. No, sir ; I do not.

Q. How many witnesses do you think we c.onld have gotten there ? A. I don't feel
safe to say you would have gotten over 20 in the township. They are afraid of those
Winchesters, and they say so.

Q.' Who's got possession of those Winchesters ? A. The Democratic party's got
possession of them. (Printed record, pages 181, 182.)

Stephen James (white), a witness for the contestant, being first duly
sworn, testified as follows:

Q. What is ycur name ? A. Stephen James.

Q. Where do you live ? A. Crittenden County, Arkansas.

Q. What is your occupation ? A. Farmer, merchant, saw-mill man, little of every-
thing.

Q. Do you know the feeling of the people in Crittenden County towards Mr. Feath-
erston ? A. Well, I reckon personally their feeling is good enough, but politically, I
don't think it's very good.

Q. Have you ever heard any threats made toward Mr. Featherston? A. I never
heard any direct threats made.

Q. Do you know whether there was any intimidation used in Crittenden County
in the Congressional election, of which Mr. Featherston was an aspirant ? A. Well, I
couldn't say there was, more than the Democratic party were all under arms furnished
by the Government, I suppose, or the State; I don't know whether it had any tend-
ency to intimidate or not; lam satisfied there was intimidation done in the State
election, and I was credibly informed that the people voted in the Congressional elec-
tion as though they did in the State election.

Q. Do you think Mr. Featherston could, with safety to his person or with any de-
gree of success as to the result, take testimony in Crittenden County, as to his Con-
gressional election? A. I have told Mr. Featherston before that I thought his safety
very doubtful, and for my part, I would not take those depositions in Crittenden
County ; my reason for saying this is that I was a contestant for the office of county
treasurer on the People's ticket, and I was repeatedly threatened with death if I
continued in an investigation which I commenced.

Q. How old are you ? A. I am 60 years of age.

Q. How long have you lived in Arkansas? A. Since the tenth of February, 1845.

Q. About how much land have you in cultivution ? A. I cultivated 800 acres
in 1888.

* # * * *

Q. How long have you voted the Democratic ticket ? A. From James K. Polk up.
Q. Why did you oppose what claimed to be the Democratic organization of your
unty ? A. Because I knew that the dictatorial policy of the so-called Democratic
arty in the county, with their Winchester- rifle policy, would destroy the labor in-
rests and the agricultural interests of the entire county.

#**#*##

Q. Do you think that the average citizens of your county feel free to express their
candid opinions within the county at the present time ? A. I do not.

Q. Do you know whether this Winchester rifle crowd is still drilling at their arm-
ory at Crawfordsville? A. I heard that they was about a week ago, or two weeks
ago. (Printed record, page 186, 187.)

118 FEATHERSTON VS. GATE.

Rev. T. J. Jones, iu speaking on this subject, testified:

Q. Have you kept pretty well posted as to the strength of the Republican party in
the county ? A. I has been, sir, for several years, though there ain't many people
know it ; but I has been for several years.

Q. You counted the Republican strength of the county at about what? A. I was
supposing there was, that is, in the county something like about 1,800.

Q. 1,800 majority ? A. Yes, sir. (Printed record, page 212.)

J. H. Williams, on this subject, testified :

Q. Do you believe it would be safe for Mr. Featherston to take testimony (contest
case) inside of Critteuden County? A. Well, it would be owing to the precinct you
were in.

Q. Say at Crawfordsville? A. I couldn't say that, whether he would be or not.

Q. Do you believe that the witnesses would be willing to turn out and testify at
Crawfordsville ? A. No, sir ; I don't think tlie witnesses would come ; about Feath-
erstou being safe there, I couldn't say that, but I don't think the witnesses would
come there ; but Featherston is different from a witness. Whether Featherston would
be killed or not I couldn't say that.

Q. What is the cause of this feeling that exist* among the witnesses? A. Well,
they keep a military company there all the time. They have Winchesters at any
minute, and a man going there to testify wouldn't feel safe, let him be who he would
be ; that's my idea about it, sir.

Q. If it was necessary for you to take the testimony of all the witnesses in your
county, of all the voters that had voted for you in your county, would you persist
in your contest or would you abandon it ? A. I think it would be best to abandon
it, sir.

Q. Why? A. My opinion is the witnesses would be afraid to turn out. (Printed
record, pages 213-14.)

Thompson Foster, on this subject, testified :

Q. Do you think that the citi/ens of your neighborhood would feel perfectly free
to turn out and testify under the circumstances that exist there now, or would they
rather not do it? A. Well, no, sir ; I don't think they really would be perfectly sat-
isfied in doing so. I don't know about the safe part. They may be perfectly safe iu
doing so, but 1 doubt whether they'd be satisfied to do so.

Q. Why wouldn't they be satisfied? A. I don't know, sir; may be on account of
the Winchesters.

Q. You feel now like yon wouldn't like to answer too many questions about this
matter? A. Well, of course I feel myself I am able to answer, but I wouldn't like to
answer too many particular questions iu regard to the Winchester rifle company.
(Printed record, page 206.)

David Furgesou, on this subject, testified :

Q. From what you know of the feeling in that county that has existed from the
12th of July up to the present time, do you think that the taking of 'depositions
would be perfectly safe in Critteuden County ? A. I know it wouldn't be safe for Mr.
Featherston, his attorney, nor his short-hand writer. (Printed record, page 209.)

Phillips County.

There is an agreement iu the record as to the vote of Phillips County,
whereby it is agreed that the contestant is to have 57 more votes than
were returned for him, and that the contestee is to have 5V votes stricken
from his returned vote, and that the contestant is to be credited with a
majority of 18 in Hickory Ridge Township. These numbers added to-
pether make 132, which should be deducted from Gate's majority, and
the vote would then stand thus :

Gate's majority 592

Deduct the 132

Leaving Gate's majority 460

Cross County.

In the township of Smith, in Cross County, Featherston is returned
as receiving 15 votes and he proves up 29 votes. This overthrows the
return, and leaves the parties to prove up their votes. The result is

FEATHERSTON VS. CATE. 119

Featherston gets 14 more votes, and Gate, not having proved any votes,
loses 84, making a difference in favor of Featherston of 98. The vote
would then stand thus :

Gate's majority 460

Deduct the 98

Leaving Gate's majority , 362

St. Francis County.

From the township of Franks the contestee is returned as receiving
269 votes and the contestant 131 votes. The proof shows that all of the
judges and clerks of election were Democrats; that the ballot-box was
taken out of the presence of the United States supervisor at noon for
an hour, and for an hour after the polls closed. This might have been
enough to destroy the prima facie character of the return. But if it
were otherwise, the testimony shows the return is false and fraudulent.
The contestant, who is returned as receiving 131 votes, proves by 195
persons, whose names appear on the poll-book as voting, that they voted
for him.

(Printed record, pages 47-182; 229-75.

The contestee who is returned as receiving 269 votes, has only proven
up 112. There is hearsay testimony tending to show that 24 other persons
voted for contestee. The names of the 24 persons whom it is said voted
for coutestee are not on the poll-book. There is hearsay testimony tend-
ing to show that 17 persons whose names are on the poll-book also voted
for contestee.

In Wallace vs. McKinley, Forty-eighth Congress, it is said :

The vicious tendency of hearsay testimony in election cases needs no demonstra-
tion.

Wash Books, a colored man, swears there were 50 colored men voted
for contestee in Franks Township. On cross-examination he was asked
to name some of the 50 he saw vote for contestee. He finally named
8 ; out of the 8 named 4 of the names are not found on the poll-book;
2 of the remaining 4 swear they voted for contestant ; aside from this
the witness is successfully impeached, and it appears in testimony he
was expelled from the Masonic fraternity for stealing the money of the
lodge.

Upon the testimony contestee has only proven 112 votes out of the
269 returned for him. Hence, 157 votes should be deducted from the
returned vote, and the vote would then stand thus:

Gate's majority 362

Deduct 157

Leaving Gate's majority 205

The contestant was returned as receiving 131, and has proven 195.
The difference between these being 64, and this amount should be de-
ducted from the vote of the contestee. The vote would then stand thus :

Gate's majority 205

Deduct 64

Leaving Gate's majority 141

Blackfish Township.

In this township no election was held. The proof shows that 29 per-
sons having the qualification of electors attended at the voting place
on the day of the election for the purpose of voting for contestant, and

120 FEATHERSTON VS. CATE.

that the judges of election would not open the polls. This township
must pass under the rule laid down as to the townships of Furgeson
and Idlewild, in Crittenden County, and can not be counted.

Lee County.

In relation to Independence Township the testimony is as follows:
Milton Powell, being duly sworn :

Quest. 1. Are you of lawful age?

Yes.

Quest. '2. Are you a resident of Lee County?

Yes.

Quest. 3. Are you a resident of Independence Township T

Yes.

Quest. 4. Did you vote on 6th day of Nov., 1888?

Yes.

5. Whom did yon vote for Congress for the first Congressional district ? Ans. Mr.
Featberston.

Quest. 6. Did you work on that day to get votes for Mr. Featherston ? Ans. I did.

Quest. 7. With what voters did you work, the Democratic or Republican voters ?
Aiis. With the Republican voters.

Quest. 8. What kind of tickets did you use in that election ? Ans. I used red tick-
ets, such as I tile here as an exhibit.

REPUBLICAN TICKET.

Election, Tuesday, November 6th, 1888.

For President,
BENJAMIN HARRISON,

of Indiana.

For Vice-President,

LEVI P. MORTON,

of New York.

Presidential electors.
At large M. W. GIBBS, W. H. H. CLAYTON.

First district GEORGE W. BELL.
Second district A. M. MIDDLEBROOKS.
Third dislrict-J. B. FRIEDHEIM.
Fourth district CHAS. D. GREAVES.
Fifth district SAMUEL MURPHY

For Congress, First Congressional district,
L. P. FEATHERSTON,
of St. Francis County.

[Note. The picket submitted is printed on red paper, with a design in blue on back. ]

Quest. 9. What voters voted that ticket that day ? Aus. The Republicans voted
that ticket ; it is a Republican ticket.

Ques. 10. What was the result of your work ? Ans. I kept count of ninety-two of
those Republican tickets that went out of my hands.

Ques. 11. What was done with those tickets, ninety-two? Ans. They were voted.

Quest. 12. How do you know they were voted ? Ans. I went with them to the bal-
lot-box and saw them put in.

Ques. 13. How many votes- were polled here that day? Ans. Something over six
hundred.

Quest. 14. What is the political complexion of this dist. ; which has a majority ?
Ans. The Republicans have a large majority.

Ques. 15. Can a majority of the colored people read and write? Ans. Majority
can't read and write.

Cross-examination.

Ques. 27. Did you give out more than ninety-two tickets that day to voters ? Ans.
I did.

Ques. 28. How many tickets did you give out that day? Ans. I think one hundred
and twenty or twenty-five.

FEATHEESTON VS. GATE 121

Qnes. 35. Where were you standing when those ninety-two persons voted ? Ans.
I went with each of them to the polls.

Qnes. 3f>. Did they all vote for Mr. Featherston ? Aus. They all voted the red
ticket like one liled ; I saw them put it in.

Ques. 37. From the time yon gave them the ticket to the time they voted did any
one have the opportunity to change any name on the ticket ? Ans. No, sir.

Qnes. 38. Then you positively swear that those ninety-two persons voted for Mr.
Feathers! 011? Ans. Yes, sir; that is my belief.

Ques. 39. Are you positive or not that said ninety-two men voted for Featherston ?
Ans. I am positive they voted for his name on the red ticket.

Ques. 40. Are you positive that Mr. Featherston's name was not scratched on a
single one of those ninety-two tickets you gave out? Ans. I am positive.

Ques. 41. What time of day did those ninety-two men vote? Ans. From 9 a. m.
to 5 p. m.

Ques. 42. Do yon know of others voting for Mr. Featherston beside those ninety-
two that day ? Ans. I do not.

Quest. 43. Cau you give us some of the names of the ninety-two that voted your

ticket? Ans. Yes, sir. Anderson Powell, Wm. Otey, Milton Powell, myself, Nelse

Robinson, Jordan Woodson, Burl Woodson, Tom Wooclson, Jirnmie Turner and son ;

can't think of bis name. I didn't take a list of the names, but when one voted I

. marked it down.

Ques. &7. About how many Eepublican votes were cast here on the 6th of Nov. last?
Ans. There might have been two hundred and fifty or three hundred; may be not so
many.

Ques. 88. How many of that number voted for Mr. Featherston? Ans. Ninety-two,
I know, cast that red ticket for him.

Redirect:

Ques. 1. In those elections in this township in which you have voted for past eight
or ten years ; now, have the colored people voted together or have been divided?
Ans. All voting together.

Ques. 2. How have they voted in county elections? Ans. They have never taken
any part in county elections, except a few.

Ques. 3. Have they always taken a deep interest in national elections, and for Con-
gress? Aus. Yes, sir; and governor.

Ques. 12. Do you know of any Republicans that have been appointed judges of the
election in this county since you have been voting?

(Objected to.)

Ans. No, sir ; I think not.

Ques. 13. Can you think of a single Republican judge that waa appointed at the
last election ? Ans. Can not.

Ques. 14. Who has a majority in Lee County, the Republicans or Democrats ? A.
Always heard the Republicans.

(Objected to as hearsay.)

Ques. 15. Did the rain keep the voters away on the last election, and was over six
hundred votes a good turn-out in this township.

(Objected to as leading.)

Aus. Don't think the rain kept the voters away, and the vote was a good turn-out
for the township.

Ques. 21. Did any Republicans canvass through here for Mr. Featherston ? Ans.
None as I know of.

Ques. 22. If you have seen any thing in any papers since yon were on the stand, any
reference to the frauds in theelections in LeeCounty, state it. Ans. I saw in a paper
yesterday something in reference to it.

Ques. 23. What paper did you see it in, and what was it ? Aus. I saw that there
were thirty-seven hundred voters in Lee County, and fifteen hundred Democrats
achieved a victory for that party.

Qnes. 24. Who did the paper say made that statement? Aus. Judge Hutton, a
member of the Democratic party and a member of the legislature. (Printed record,
page 26 to 31.)

There is, under the proof, circumstances and facts sufficient to im-
peach the return aud put the parties to proof. It is satisfactorily proven
that the township is largely Republican ; that 632 votes were cast, show-
ing a full turnout; and the contestant is only returned 81) votes.

The vote for Presidential electors was as follows:

Harrison 435

Cleveland 196

Republican majority 9-39

122 FEATHERSTON VS. GATE. .

Here, then, is a case where we have 239 votes not connted for any one
for Congress, and this, too, in the face of testimony of witnesses saying
the Republicans turned out well and were in the majority and voting
the party ticket.

The contestee claims that the contestant has admitted that he received
224 votes in Independence township and cannot now invoke the protec-
tion of that rule where the return is overthrown and the parties put to
proof.

The view we take of the matter renders it unnecessary to pass upon
the question of estoppel.

What is claimed as a concession by the contestant, that the contes-
tee received 224 votes in this township, is contained in the notice of
contest on page 7, as follows :

That at the precinct of Independence, in the county of Lee, in said district, at an
election held on the 6th day of November, 1888,1 received 397 votes and you received
224 votes; that the election officers of said township, who are partisans of yours,
through fraud or mistake, returned that I received 89 votes, and that you received
224 ; that the votes as thus returned by the election officers of said township were by
the county clerk of said county certrlied to the .^ecretary of state, and by him laid
before the governor of said State, and by him counted in determining the number of
votes cast lor each of us for Representative in said district. I shall therefore claim
on contest that I be allowed 308 more votes than were returned and certified for me
from said township.

This is not a concession that contestee received 224 legal votes, but is
in the nature of a recital of the state of facts which he would be able to
establish by proof.

This was at the inception of the contest, when contestant may not
have had full information.

But be that as it may the recitals in the notice can have none of the
sanctity and binding force of an agreement or stipulation and can not
be construed into a concession.

The contestee did not treat this statement as a concession that he re-
ceived 224 votes, but on the contrary he filed the following answer:

As to the precinct of Independence, in the county of Lee, I deny all the charges of
fraud and mistake, and say that the votes were correctly counted, returned, and cer-
tified. I deny that you received three hundred and ninety-seven (397) votes, but you
received eighty-nine votes, and I received two hundred and forty-four (244) votes in
said precinct or township. (Record, p. 17.)

Instead of the record making a stipulation or concession that con-
testee had received 224 legal votes, the number of legal votes was not
admitted by contestant nor was the alleged concession accepted as such
by the coutestee in lieu of evidence, but he set up a claim to 244 votes
instead of 224 which he now claims as having been conceded.

The parties having failed to agree upon the matter the question
stands upon the proof, which shows that a fraudulent return was made
by the election officers.

Only one witness was examined in Independence Township. The wit-
ness giving the testimony, ou leaving the stand was arrested for per-
jury, and placed under $1,000 bond to answer to the State court. The
attorney for contestee from that time on proclaimed he would cause the
arrest of all persons who testified for contestant, if he thought they tes-
tified falsely.

After that time testimony was taken in relation to that township out-
side of the county, and Joseph Kennedy, the chairman of the Repub-
lican county committee, testified as follows :

Int. Why do yon come to this connty to give your testimony in this case; is it be-
cause of threats of violence there ? Aus. So far as I am concerned I am not person-
ally afraid, but there have been threats of violence used against Featherston men.

FEATHERSTON VS. GATE. 123

Jnt. Was not the first witness who testified in Lee Co. arrested and put under bond
on account of his testimony ? Ans. Yes, sir.

Int. Was not that witness also abased while under arrest by one Jacob Shane, and
is not this a matter of common notoriety among the colored people of your Co. ? Ans.
Yes, sir.

Int. What position did this Jacob Shane occupy in the party prior to this last elec-
tion ? Ans. He was chairman of the Co. central committee, Republican.

Int. Why has he been deposed from that position ? Ans. On account of the man-
ner in which he had previously handled the Republican election tickets.

Int. Is it not generally understood by the Republicans of Lee Co. that Jacob Shane
has proven treacherous to his party ? Ans. Yes, sir.

Int. Of what nationality is this Jacob Shane ? Ans. He is a Jew.

Int. How were you first induced to become favorable to Mr. Featherston ? Ans. By
the representations of this Mr. Shane. He made a speech and endorsed Mr. Feathers-
ton and urged the colored people, as there was no Republican in the field, to support
" 'r. 1'Vatherston. He was for Featherston up to the day before the election.

Int. What kind of a ticket was Mr. Featherston's name on? Aus. It was a kind of
a red ticket with purple back.

Int. Was that the Presidential Republican ticket, with the President electors all
on it ? Ans. Yes, sir.

lut. Is it not a difficult matter to persuade a colored man to go back on his national
ticket? Aus. Yes, sir; it is a difficult matter.

Int. Was it generally understood by the whole Republican party of Lee Co. that
they should support Featherston ? Ans. Yes, sir.

Int. What is the political complexion of Independence Township? Ans. Repub-
lican by large majority. (Printed record, page 47.)

T. F. Carter, being first duly sworn, deposes as follows :

Int. What is your name, age, and residence ?

My name is T. F. Carter; age, 27; and residence Marianna.

Int. How long had you lived in the county before the November election ? Ans. I
had lived in that township 10 mouths before that election, and in the State since
1885.

Int. Did you vote in that township? Ans. Yes, sir.

Int. For whom did you vote for Congressman, Cate or Featherston? Ans. Feath-
erston.

Int. What are you, Republican or Democrat ? Ans. I am a Republican.

Int. Was Featherston's name on the Republican national ticket? Ans. Yes. sir;
it was.

Int. What is the political complexion of Independence, the one in which you
voted ? Ans. I know it to be a fact that is against my interests to state any further.

Int. Why is it against your interests to testify in this cause? Ans. My friends ad-
vised me, in view of my condition, and that as I had a little property there, to have
nothing to do with the contest.

Int. D.o you feel that in view of your personal and property interests there that it
would be unsafe for you to testify in this case ? Ans. Yes, sir.

Int. What position did you occupy on the day of election by appointment? Ans.
Several told me since that I was appointed supervisor, but I knew nothing about it.

Int. Were the parties who advised you as to your safety Republican, or Democrats,
and did they seem to be advising you for your personal welfare ? Aus. Yes, sir ; they
advised me for my future living.

Ins. Is it not a fact that you left home the night after you were subpoenaed to tes-
tify in this case? Ans. Yes, sir; upon the advice of my friends I went away, as I
didn't feel safe. I was not afraid that the Republicans would molest rne. I know
about how the vote was; but I don't care to testify.

Int. Did you take a very active part in the election and work very hard for your
ticket? Ans. Yes, sir; I did.

Int. Are the colored people down there generally intimidated ? Ans. I was afraid
to testify there, and other colored people were influenced by the same fear. (Printed
record, page 48-9.

J. H. Cox, being first duly sworn, deposes as follows:

Int. What is your name, age, residence, and occupation ? Ans. J. H. Cox is my
name; my age is 25; m'y residence Independence Township, Lee Co., Ark. ; I am a
schoolteacher; I have been living 12 months in this State, 6 months in Lee Co., and
30 days in Independence Township.

Int. What are your politics? Aus. I am a Republican.

Int. Has the arrest of Milton Powell for testifying in this case had the effect of deter-
ring others from testifying in the case ? Ans. Several have told me that they would
not testify because they were afraid.

124 FEATHERSTON VS. CATE.

Int. Why did yon not return to testify after you had promised me to do so ? Ana. I
was advised not to come on account of the feeling in this matter. A friend of mine in-
formed me that Milton Powell had been arrested and said he was afraid I would bear-
rested and advised me to stay away, which I did. (Printed record, page 49).

The conduct of the contestee's attorney could have but one object and
effect, and that was to intimidate other witnesses. There is direct tes-
timony from one witness, and no attempt was made to impeach him,
showing that 92 votes went into the box for the contestant. The re-
turns show 89 for Featherston and 224 for the contestee. There is
enough evidence to impeach the return and put the parties to proof.
The friends of the contestee in Independence Township, like his friends
in Crittenden County, prevented full proof being made, and can not
complain if we apply the rule as to Independence Township that was
applied to Scanlau and Cat Island, which we do. Full proof of the
vote was not allowed to be made, and in such a case he who prevented
it should suffer, if any one.

We have no hesitation in adopting this rule in relation to this town-
ship, because the contestee knew of the proof made by the contestant.
He could have taken proof and shown his true vote. He elected to rely
on intimidation of contestant's witnesses, and must abide the conse-
quences of his election. He was at liberty to have shown that 319 of
the persons voting at that election did not vote ior either candidate
for Congress, and thus have explained why it was that the contestant
ran behind the Republican electors, but he has not done so.

The result is, that the contestee must lose 224 votes returned for him,
and the contestant must be allowed 3 more votes than were returned
for him ; these two amount to 227, for which the contestant should re-
ceive credit. The vote would then stand thus :

Gate 141

Featherston 227

Making a majority for Featherston of 86

There is objection to the testimony taken before Avery, a notary
public at Memphis, Teun., which testimony we have admitted and con-
sidered as competent in arriving at a conclusion in this case. The
ground of objection is, that the contestee did not have notice of the
taking. The contestee does not deny that Berry, the person upon
whom it is claimed notice was served, was his attorney, but his claim is
the technical one that he was not his attorney for taking depositions
outside of Crittenden County. The technical character of this objec-
tion is still more apparent when it is remembered that the record shows
that Bexry was employed to take the testimony relating to Crittenden
County.

It appears from the testimony objected to that contestant, with his
attorneys went to Critteuden County, and there met Berry, the attorney
of contested; that before going there an understanding existed that
Berry should act as notary public to take the depositions ; that in the
face of this agreement he declined to so act; that a justice of the peace
was asked to take the testimony and refused ; that there was danger of
violence, and threats were made calculated to produce the belief that
bloodshed would follow; that under that state of facts Berrj was noti-
fied as the attorney of contestee that the testimony in relation to that
eounty would be taken at number 59 Madison st., Memphis, Tenn., at 9
o'clock on February 25, 1889.

We think under this state of facts notice to Berry would be sufficient,
for it related to the taking of the very testimony which he was em-

FEATHEESTON VS. GATE. 125

ployed to take. Ifc will not do to say that Berry's employment ended
when contestee's partisan friends had succeeded in preventing the tak-
ing of testimony in Critteuden County. W. B. Eldridge (p. 226, 227)
testifies:

Q. Did you all go with Berry, the lawyer of Gate, and did he say anything about
acting as notary public ? A. He said ho would act as notary public, which he after-
wards refused to do.

Q. Did you all take any depositions there ? A. We did not.

Q. What was the reason for not taking depositions? A. We could not get a notary
public ; there was a magistrate there, but he refused to act, and Mr. Berry refused,
contrary to his promise and our expectations.

After detailing his treatment at Crawfordsville, in Crittenden County,
in response to a question he states :

I notified L P. Berry, the attorney of Mr. Gate, that Mr. Featherston would take
proof iu Memphis, Tenn., at my office, on the Congressional contest ; and on Febru-
ary ~;4, Walsh (an attorney) and myself both notified Mr. Berry that we would begin
taking proof at 59 Madison st., Memphis, Tenn., at nine o'clock, February 25, 1889.

Contestee produces an exparte affidavit from Mr. Berry, his attorney,
denying notice to take depositions at Memphis, and now asks that these
depositions be suppressed, and this request was made for the first time
after the printing of the record.

The act of Congress of March 2, 1887, provides among other things
that

Before the record is printed the Clerk of the House shall notify the parties to be pres-
ent at a day named at the opening of the testimony, and of agreeing upon the parts
thereof to be printed; that the depositions shall be opened, in the presence of the
parties or their attorneys, and that such portion of the testimony as the parties may
agree upon shall be printed; that in case of disagreement between the parties, the
Clerk shall decide what portion of the testimony shall be printed.

The intent and object of this statute is obvious. Had it been fol-
lowed the testimony now complained of might not have appeared in the
printed record. Had it been followed, the objection of the contestee,
now interposed, would have been made known and the contestant
would have been placed in a position to elect whether he deemed the
testimony of sufficient importance to make application to the committee
or the House for permission and time in which to retake it. Instead of
pursuing that course no objection to the printing of the testimony now
objected to appears to have been made. It is said that this testimony
had not been filed at the time the parties appeared before the Clerk of
the House. It does appear from the Clerk's record " that on account
of the non-receipt" of certain packages of testimony for contestant he
was granted further time in which to file testimony.

It is not improbable, indeed it is probable, to say the least, that the
attention of the contestee was at that time called to the character and
contents of the testimony the contestant was thus granted leave to file.

In the case of Lowry vs. White, Fiftieth Congress, after the record
was printed, motions were filed by both parties during the considera-
tion of the case by the committee to exclude certain portions of the
testimony, and these motions were denied, and the attention of the par-
ties was called to this statute, and in the syllabus this language is
found :

No part of the testimony submitted in a case will be suppressed where the parties
fail to take advantage of the statutory provisions allowing parties to agree upon
what portion of the record shall bo printed prior to the hearing of the case.

In the case of a judgment by default the court will not set aside the
judgment unless the defendant can show a good defense to the action.

126 FEATHERSTON VS. CATE.

In the case of a decree pro confesso the decree will not be set aside
unless a meritorious defense is shown.

If the coutestee had filed a motion to suppress the depositions, on the
ground he was taken by surprise, and alleged that he could disprove
the state of facts shown by them, he would stand in a much better
light than he now does. He now makes an objection which should have
been made under the act of March 2, 1887, before the record was
printed. After the record was printed he must have had knowledge
of these depositions. Had he then filed a motion to suppress them lie
would stand in a much better light, but he failed to do so and does not
tender any excuse now for that failure. Had he notified the contest-
ant, on the receipt of the printed record, of an intention to file a mo-
tion to suppress these depositions, if such was his intention, he would
have performed a commendable act, and would have at that time
placed the contestant on notice. Instead of doing so, however, he re-
mained silent until after contestant filed his brief, and then, instead of
filing a motion to suppress, contented himself until he could afterwards
raise the question of a want of notice. Instead of coming here and in-
sisting that he has a meritorious defense to the matters charged in re-
lation to Crittenden County, and asking time to establish that defense
by proof, he simply asks us to suppress the testimony taken by the con-
testant, showing and tending to show fraud, violence, and intimida-
tion, before and at the election, and threats and danger of violence to
those who proposed to make proof of the frauds.

It appears from the testimony of Eldridge, the attorney of contestant,
that Berry, the attorney of contestee, was notified of the time and place
at which the contestant proposed to take depositions, and it appears
that a copy of the printed record was sent to the contestee on the 15th
of September, 1889.

The long silence of contestee on the question of notice, after he re-
ceived a copy of the printed record, and the neglect to exercise his
right to object before the record was printed, and no tender of proof
made to contradict what is shown by the testimony, are facts from
which the inference arises that the testimony can not be contradicted,
and is in the nature of a tacit admission of the existence of the state of
facts shown by the depositions.

We find these depositions in the printed record, and find the cou-
testee inade no objection to them before they went there ; we find that
after they had appeared in the printed record he did not file any ob-
jection or protest with the Clerk of the House because they were placed
there ; we find that after he saw them in the printed record he failed to
notify the contestant that he would object to them. Being a lawyer of
experience, and having been a judge, contestee's silence and failure to
offer more tangible defense than mere technical objections can only
be accounted for by the assumption that he has no real defense.

In view of these facts we are of opinion that the testimony should
not be suppressed. We are not deciding that testimony may be
taken without notice, though there are authorities which, under the
facts of this case, would justify the admission of ex parte evidence. We
might quote to sustain even this view, from Bisbee vs. Finley ; Bu-
chanan vs. Manning ; and Thoebe vs. Carlisle et. al. ; but as we do not
decide on the question of ex parte evidence, in the admission of the
depositions in this case, it is unnecessary.

Under the broad provisions of the Constitution, making each House
of Congress " the judge of the elections, returns, and qualifications
of its own members," it would seem that we are not bound by the

FEATHERSTON VS. CATE. 127

strict rules of evidence known to the " common law." But we are not
deciding that question. What we are deciding is, that where deposi-
tions are found in the printed record, or where they appear in the
printed record, and no objection is made to the Clerk of the House or
to the opposite party, the party failing to object at the earliest oppor-
tunity, or at least within reasonable time, so as to put the opposite
party on notice, will be deemed to have waived all question of notice,
especially where there is no offer of proof 1o show a different state of
facts than those shown by the depositions.

As already shown by the figures given, we are of opinion that the
proof under the law clearly shows that contestant Featherstou was
elected by a majority of 86 votes.

The committee therefore report the following resolutions and recom-
mend their passage :

Resolved, That W. H. Gate was not elected as a Representative to
the Fifty-first Congress, from the First Congressional district of the
State of Arkansas, and is not entitled to the seat.

Resolved, That L. P. Featherston was duly elected as a Representa-
tive from the First Congressional district of the State of Arkansas to
the Fifty-first Congress, and is entitled to his seat as such.

VIEWS OF THE MINORITY.

The depositions taken without legal notice should not be considered.
The charges of fraud are not sustained by the evidence.

H. Mis. 137 9 129

VIEWS OF THE MINORITY.

Mr. OUTHWAITE, from the Committee on Elections, submits tlie fol-
lowing as the views of the minority:

The total number of voters in this district is, in round numbers, 40,000,
of which 25,000 are whites and 15,000 negroes. Twenty-two thou-
sand are Democrats and 18,000 Republicans. It has been represented
in Congress tor the last ten years by a Democrat. The Republicans
during that time virtually conceded it to the other party by making a
nomination for Representative in Congress upon only two occasions.
At a more recent State election for three judges of the supreme court,
held April 2, 1889, the vote in this Congressional district was, for the
leading Democratic candidate, 9,801, and for the leading Republican
candidate, 8,021. The majority for the Democratic candidate was about
1,780. No one has questioned the legality or fairness of this election,
nor has any one claimed that there was any fraud or intimidation any-
where throughout this Congressional district, though the total vote cast
was not quite 18,000.

At the November election in 1888, 30,000 voters went to the polls and
voted. On the 21st of that month the governor of the State of Arkan-
sas, in pursuance of law, made proclamation, wherein it was alleged
that W. H. Gate received 15,570 votes, and L. P. Featherston received
14,228 votes ; that the former received 1,348 more votes than the latter
for Representative in Congress from the First Congressional district of
Arkansas. This majority is conceded by the contestant to have been
shown on the face of the returns certified to the governor, in his notice
of contest and in his brief.

There are seventeen counties in the district, and fraud, mistake, or
improper conduct, is charged in fifteen of them. No testimony is taken
or attempted to be taken except in four. The record shows that but
seventeen days of the forty allowed by law (Rev. Stats., sec. 107) for
taking his testimony in chief were occupied by the contestant, and that
he did not avail himself in more than one instance of that other provision
of the law, that testimony in contested-election cases may be taken at
two or more places at the same time." (Rev. Stat., sec. 109.) No rea-
son or excuse is given by contestant for his failure to attempt to prove
the allegations of his notice and statement in some forty paragraphs
concerning the election in twelve of the fifteen counties of the district.
The fair inference is that there was no proof to be obtained to support
his charges of fraud or misconduct in those twelve counties.

As to Phillips County, there is an agreed statement of facts (rec.,
pp. 183-4). admitting certain mistakes and irregularities by which it is
shown that in Hicksville precinct the contestant is entitled to 33 votes
and the contestee to 15 votes, which were not returned to the secretary
of state for them respectively. It is further shown by said agreement
that in Lake Township contestant received 127 votes and contestee re-
ceived but 10 votes; but that in making the returns of said election to

131

132 FEATHEKSTON VS. GATE.

the county clerk, the judges of said election by mistake certified that
L. P. Featherston received 70 votes and W. H. Gate received 67 votes,
which error was certified to the secretary of state. The correction of
these errors would increase the vote of contestant 90 votes and decrease
the vote of contestee 43 votes, reducing the majority of contestee by 132
votes. There is another part of said agreement that will be considered
farther on in this report.

In Lee County, the testimony relates to the votes of but two town-
ships. Independence and St. Francis. Apart from the deposition of
W. T. Derrick, who simply furnishes, as county clerk, certain names
taken from the lists as returned to office of the votes in Independence,
Council, St. Francis, and Walnut Townships, there is the testimony of
but one witness in the record, which was taken under notice. The
election at Independence precinct was conducted fairly, without any
intimidation or disturbance of any kind whatever. The integrity, good
character and conduct of the officers of the election is not directly
attacked anywhere in the record. It is ridiculous to think that Milton
Powell's testimony should overthrow the sworn return of the five elec-
tion officers. The testimony tends to show there were present also two
Femoral supervisors. The official return from this precinct, it is claimed
by contestant, gave contestee 224 votes, and contestant 89 votes. Con-
testant claims that he received 397 votes at this precinct, but that
through fraud or mistake only 89 were returned as cast for him, at the
same time admitting that contestee received 224. Contestant also
averred that the election officers were partisans of the sitting member.
To sustain his claim he examines as a witness Milton Powell.

Powell testifies, after having identified a Republican ticket, and stat-
ing that it was printed on red paper with design in blue on the back,
as follows :

Ana. 10. I kept count of 92 of those Republican tickets that went out of my hands.

Ans. 11. They were voted.

Ans. 12. I went with them to the ballot-box and saw them put in.

He says :

Ans. 30. Rainy day ; after it commenced it rained steadily the remainder of the
day.

Ques. 32. Were yon in the rain 'or under shelter ? Ans. Part of the time under
shelter in front of the court-house, and part of the time in the rain ; I had an um-
brella.

The state of the weather being very bad that day at this precinct and
throughout the district, as is shown by other testimony, accounts to
some extent for the falling oft' in the vote ; but Powell's testimony on
that subject here is introduced to reflect upon the accuracy of his count
made under such unfavorable circumstances.

He further testifies that he does not know of others voting for Mr.
Featherstou, though he gave out 120 or 125 Eepublican tickets. In
his answer No. 13, he says that something over 600 votes were polled
there that day, and [Ans. 14J that the Republicans have a large ma-
jority of this district.

In answer 52 he gives his reason for saying this, but in answer 54 he
says :

The county elections for the past six or eight years, it has been going Democratic.

And | Ans. 55 j :

It may hare been ten years ; but I am positive for six or eight years.

He further testifies that Jake Shaul, the chairman of the Eepublican

FEATHERSTON VS. GATE. 133

committee, and Joe Roberts and Samuel Overtoil, who said they were
Republicans, worked for the election of Mr. Gate, the contestee.

Ques. 82. Did you see anything like intimidation or bulldozing among white or
colored ? Ans. No, sir.

Ans. 85. I did not say that there was any fraud in this township. I just saw in the
papers where such things were done in other counties.

Ques. 86. Have you ever seen any account in any paper, or heard from any source
whatever, even an intimation of fraud in the election in this township ia November
last ? Ans. No, sir ; I have not, as I know of.

The next two questions and answers will show what reliance is to be
placed upon his previous testimony that something- over GOO votes were
polled in the township that day.

Ques. 87. About how many Republican votes were cast hero on the 6th of Novem-
ber last ? Ans. There might have been 250 or 300 ; may be not so many.

Ques. 88. How many of that number voted for Mr. Featherstou ? -Ans. 1)2, I know,
cast that red ticket for him.

This witness also testifies that of five candidates for governor since
he has been a voter but one Republican had carried that township,
and the Democrats the balance of the time. He shows that there was
considerable disaffection among the Republicans ; that the chairman of
the committee was actively at work for the election of Mr. Cate, and
that this support of the Democratic candidate for Congress had been so
pronounced and so effective that he had recently before the time the
witness was testifying been removed from his position as chairman, and
another person appointed in his stead. He names three other promi-
nent Republicans who were at these polls working for the election of
Cate.

At the conclusion of his testimony, this witness was arrested for per-
jury in testifying that 92 votes were cast under his immediate observa-
tion for Mr. Featherston, in the face of the returns of the election officials.
It is claimed on the part of the contestant that his witnesses were thus
intimidated and prevented from proving his case in Lee County. It
will be observed in the notice to take depositions at the time and place
where Milton Powell and W. T. Derick were examined that no other
names are included in the notice of the witnesses for contestant. There
is nothing in the record to show that at that time and place contestant
proposed to examine other witnesses as to the conduct of the election,
or at any other time and place.

To sustain this pretext of intimidation, preventing the taking of testi-
mony, there was taken, without notice to the contestee, and in another
tqwnship, the testimony of two other residents of Independence Town-
ship, Lee County. In the testimony of these two men you will not find
one word relating to the election or what occurred there on that day.
The witnesses Carter and Cox claimed that others had been deterred
from testifying in the case on account of the arrest of Milton Powell,
and that they had apprehensions if they should so testify. They say
as much as they possibly can of this character, well calculated to offend
their political opponents, but present no facts to show that the election
itself should be called in question. It is therefore not necessary to
dwell longer upon the question as to what shall be done with the vote
in this precinct. It should remain undisturbed as it was certified by
the sworn election officers to the clerk of the circuit court of that county,
and by him certified to the secretary of state. No testimony was offered
tending to show that the officers of the election were not appointed
according to law, and the Republican Federal supervisor of election,
although he claims not to have known of his appointment, was at the
election and saw nothing of which he could complain.

134 FEATHERSTON VS. GATE.

The next precinct to be considered is St. Francis Township, Lee
County.

With regard to the vote in this township the record does not show
that any testimony was ever attempted to be taken there. Notice was
given by ooe of the attorneys of contestant that testimony would be
taken before a notary named Leary at Terrell and Bond's store on Feb-
ruary 19. Attorneys for both parties were there at the time. No wit-
nesses were examined. None were called or sworn, and no adjourn-
ment of the hearing was had. No excuse is given anywhere for the
failure to do these things. Then and there ended all legal attempts to
make any proof concerning the vote in this township. In open and
flagrant violation of the provisions of the law with regard to the taking
of testimony in such cases, the contestant, in the absence of contestee
and his attorneys, and without his knowledge, secretly and surrepti-
tiously procured certain statements apparently made under oath before
an officer not authorized by law to take testimony in contested election
cases.

One of these witnesses is made to say that at the election on No-
vember 6, at this St. Francis Township, Mr. Featberston's name was
on the Republican ticket, and that all the Republicans he saw vote
voted the Republican ticket. Another, in answer to the question, " Did
all or nearly all the Republicans vote that ticket f says, " Nearly all
I seen voted that ticket." A third, in answer to the same question, re-
plies, ' k I think so." This third witness, 0. B. Brown, was the Repub-
lican supervisor of election, and tells a queer story about the ballot-box
being two hats, and that wheu the judges went to dinner one of the
clerks took the ballots and put them in a large envelope and placed it
in his pocket *' and went about one and a half miles and ate their
dinner;' 7 that the ballots were not counted at the polling place, but at
the residence of W. L. Blacher, about one mile and a half away. Neither
one of these witnesses was asked a word about the politics of the judges
or clerks who thus misconducted the election. As the testimony of
G. T. Thompson was taken without notice, and adds to that of the other
two only that there was none of his party judges or clerks of election,
we give it little weight. If this vote were cast out as attainted by fraud
the result would not be changed, because the returns from the precinct
give each candidate an equal number of votes. There is no testimony
upon which to base any different conclusion. There never was any op-
portunity for the contestee to take testimony contradicting this so-called
testimony. Surely it is not seriously contended that any change should
be made as to the vote of this township.

The contestant or his attorneys, in the case of Spring Creek Town-
ship, in Lee County, instead of taking testimony to sustain his notice
and statement (record, page 7, section XXI), secretly and illegally
procured so-called testimony to prove that he was prevented from se-
curing such proof by intimidation. Why did he not interrogate the
very witnesses whom he had taken out of their own county on the pre-
text of this intimidation as to the matters he had set out in his notice
of contest. These men claimed to have been at the election, and ought
to have been at the election and ought to have known something of
the truth or falsity of his allegations. He sought to prove by them
that the negroes feared to appear as witnesses because the attorney for
contestee had said, k - If they swear lies here, 1 will put them in the pen-
itentiary." The contestant's attorney, in his brief, gravely says:

It was impossible to get a witness to go on the stand and testify, with the opeu
declaration beiug made that he would be arrested for perjury if he testified.

FEATHERSTON VS. GATE. 135

He should have said "testified falsely." He contends it was useless
to tell them that the State courts had no jurisdiction of such an
offense. What a pity that he could not persuade those whom be seemed
to have wished to do so that it was not a crime to swear falsely in a
contested-election case.

Smith Township, Cross County.

In his notice contestant makes the following claim as to this township:

That at the township of Smith, in the county of Cross, in said district, at an election
held op the 6th day of November, 1888, 1 received for Representative one hundred and
fifteen (115) votes and you received eighty-four (84) ; that the election officers of said
township, who are partisans of yours, through fraud or mistake returned that you re-
ceived eighty -four (84) votes and that I received fifteen (15) votes ; that the votes as
thus returned were by the county clerk certified to the secietary of state and by him
laid before the governor and by him counted in determining the number of votes cast
for each of us in said district. I shall therefore claim on contest one huudred more
votes in said township than were returned for me.

He offers no proof concerning the vote which was certified to the
county clerk by the election officers and by him certified to the secre-
tary of state.

There is no evidence showing any reason why the testimony with re-
gard to this precinct should not have been taken in that precinct, or at
least in that county. Yet twenty nine men are called into St. Francis
County as witnesses to testify concerning said election. Not one of
them gives any evidence of frauds in the conduct of this election.
Nearly every one of them is asked directly, " Were the judges of elec-
tion in your township your political friends or enemies?" Not one of
them made any reply to this question. Not one of them says the judges
were partisans of the coutestee. No proof is given that they were not
appointed according to law from the two parties. Their integrity and
their proper conduct of the election is nowhere assailed by direct evi-
dence.

Without laying any foundation whatever to impeach the official
returns of these election officers, made under oath, contestant proceeds
to take the testimony of these twenty-nine men as to how they voted.
Only six of them can read or write. The Kepublicau tickets did not have
Mr. Featherstou's name on them at this precinct. Two of the witnesses,
colored men, say that they made out the tickets, and wrote Featber-
stou's name on for the others. There is a suspicious uniformity in the
answers of about twenty of tnem when the question submitted to them
was whether they voted for Gate or Featherston. The answer generally
ran: " Featherstou. Harrison for President." It is like an admission
that they did not actually recollect having voted for Featherston, or
did not have much interest in his election.

One of them saying he could read a little, and saw Featherston's
name on his ticket, being shown V7. H. Gate's name, called it " Feather-
ston." Another said he did not vote for Congressman, but for Harri-
son and Morton. A third answered. "I said I voted for Gates." No
testimony is given to show that coutestee did not receive the full num-
ber of votes returned for him. The vote of this township should not
be disturbed upou such a shallow showing.

Blackfish Township, St. Francis County.

The notice of contestant claims that at this township, by the fraudu-
lent, illegal, and unlawful conduct of the judges of election of said
township, 53 voters of said township attended at the place where such

136 FEATHERSTON VS. GATE.

election was to be held, at the proper time for the purpose and with the
intention of voting- for him, but were prevented from doing so by the
fraudulent, illegal, and unlawful conduct of said judges of election.

It will be observed that contestant does not claim that the election
officers at this precinct were partisans of contestee. The proof shows
that two of the judges were Republicans, Mr. Worley, who was sick and
has since died, and Ruffin Carr, a negro. The ballot-box there was
in the hands of a Republican Federal supervisor, a negro, named Font
[or Fountain] Young, and he and Carr kept the ballot-box all day.
Worley said his wife was sick and he could not leave home. The roof
had been taken off the house where the election was to have been held,
some weeks before, to be repaired, and had not been replaced. No other
house near could be had in which to hold the election. Two are men-
tioned, in one of which there was cotton, and the owner objected to
having an election in his cotton store-house, and the other was a mere
shelter with no floor.

Mr. James, the Democratic judge, was in bad health and could not
sit in the rain. It would have been impossible to write the names of
voterson the poll-books, keep tally-sheets, or, in short, conduct an elec-
tion, and there was no force, threats, violence, or intimidation of any
kind used or hinted at to prevent any one who might have wished to
hold an election at Blackfish that day. Mr. James told one of the
Republican judges to get his judges and clerks and hold an election it
he wanted to.

Contestant calls some twenty witnesses. They differ materially in
their evidence as to the number of voters at the polls, and their pur-
pose. From 25 to 40 voters were there, some 15 of whom were whites
and Democrats. One witness says, u I counted 35 colored people that
were here and coming. I counted 20 right here at the house." " There
was about 30 people, pretty much all colored people," says another. In
reply to the question, " If you did not vote, why did you not vote *?"
their answers ran about as follows :

"I come here to the school-house to vote, but the judges would not
serve." One witness said, " I started to the school-house. It was rain-
ing hard. I could not get there. I am a Republican." Another said,
u 1 started but could not get here. I was walking and it was raining."
Still another said, " I understood a few days before that the judges re-
fused to serve, and thought there was no use to go.'' No one else sus-
tains this notion.

Here are some specimen answers to the question :

For whom would you have voted, Cute or Featherstoii ?

For Harrison and the Republican ticket and whatever was.

I meant to vote the Republican ticket.

Most of the colored people said they were going to vote the Republican ticket. I
wanted to vote for Featherstoii for Congress and Harrison for President.

I am a Republican and wanted to vote for Harrison.

I am a Republican. I do not know who they were going to vote for for Congress.

I heard some say they wanted 1;o vote for Harrison, and some say they wanted to
vote for Cleveland. Pretty well all of them said they would vote for Harrison. There
was two or three colored people said they would vote for Cleveland.

(See record, from page Co to page 76).

These answers are significant in the frequent omission of Mr. Feath-
erston's name, when it is known that there was a Republican candi-
date for Congress voted for in this contest of the name of W. R. Bar-
rett. It was asserted in the committee-room by Mr. Gate, in the pres-
ence of Mr. Featherston, and not denied, that he (Featherston) was
a Democrat two years before this time, and had been previous thereto.

FEATHERSTON VS CATE. 137

Is it not absurd to talk of sustaining the proposition of the, contestant
with regard to the vote of this township ?

Attention is next directed to Frank Township, St. Francis County,
where contestant makes an elaborate and desperate effort to overthrow
the returns of the election officers. In his notice, speaking of this
township, he says :

I received 271 and you received 129, bnt the election officers of said township, who
are partisans of yours, through mistake, or fraud, or otherwise, returned that you
received 269 votes and that I received 131.

Contestee brings as witnesses the judges and clerks of election, who
account for the ballot-box during the entire period of the election, ex-
plain minutely how the election was conducted and returns made, etc.
(Record, pp. 250, 259, and 76.)

He brings the Democratic supervisor, Mr. Davis, who testifies (p. 254)
to the regularity of the election. He brings Andrew McGlown, the Fed-
eral supervisor for the Republican party, himself a Republican, who
shows by his evidence that he was watchful and diligent in the dis-
charge of his duty; that the box was not out of his sight but twice for
not exceeding three-quarters of an hour, and then it was locked and he
had the key ; that when they went to dinner the Democratic supervisor
had the box and he had the key : at supper he had the box and Mr.
Davis the key. While the Democratic supervisor had the box at din-
ner it was locked in a room, and Mr. McDonald, one of the judges of
election, had the key of that room. There was no chance with the Dem-
ocratic officials to tamper with the ballots by taking out those which
had been deposited and numbered to correspond with the name of the
voter and substitute others properly marked in their places. To have
done this it would have been necessary to break the lock, which was
not done, or to have had another key made.

This election was held four miles in the country, where there was no
locksmith or gunsmith to assist in perpetrating such a fraud. Contest-
ant introduced proof tending to show that it was easy to duplicate a
key by having one made in a few minutes on the day of the taking of
testimony. It may be sufficient to say that there was no testimony
tending to show that any such fraud had been perpetrated upon this
ballot. The testimony shows no opportunity and no suspicious circum-
stances indicating any design upon the part of the officers of election.
The regularly appointed officers for this precinct were not present at
the time to open the polls and did not qualify, so that officers were
chosen from the citizens and by them. No testimony is offered as to
facts of their election, showing that they were not chosen properly
nd legally, although it is claimed that the judges were all Democrats.
Republican negro who had been appointed did not come until it
was late.

The election law of the State of Arkansas is as follows :

If the court shall fail to * * ' appoint judges of election, or those appointed
fail to act, the voters, when assembled, may appoint the judges, who shall, in all re-
spects, perform the duties of judges of election as required by law. (Mansfield's
Digest of Laws of Arkansas, section 2650.)

And it is further provided that

The judges of election appointed by the county court, or chosen by the assem-
bled electors under the provisions of this act, shall, if practicable, be from differ-
ent political parties, so that each party may be represented, and they shall, in addition,
* * * be able to read and write.

138 FEATHEESTON VS. GATE.

McGlow testifies (page 76) :

Mr. Jack Davis called attention of the judges and clerks, who were there, that it
was right as the other jndges and clerks * * to elect or appoint judges in their

places, and they went ahead and did so. There were only Mr. Hill, Mr. McDaniel,
and Mr. Grey, and Mr. Davis, and a few other men were all that were present at this.
None of the judges appointed by the county judge were present. Jack Bruyn, a
colored man, was one of the regularly appointed judges. I don't know what time he
came.

If there had been Republicans present qualified to be judges would
not this witness have so testified ? None were present none could be
chosen. No violation of law is proven. It was shown that the box
was out of the sight of one of the federal supervisors about three-
quarters of an hour at noon and again at supper time ; but never out
of sight of both federal supervisors

McGlown, this Republican negro Federal supervisor, testifies that he
saw the ballots as they were handed to the judges and deposited in the
box as they were received ; that he did not change or alter the ballot of
any elector, and did not suffer his associates to do it as far as he knows ;
that the ballot-box was in his sight all the time the votes were being
deposited, and also when counting out; that he examined them as they
came out of the box; they were counted correctly; he supervised the
count of the ballots by the clerk and they were correctly tallied ; that
the election was conducted fairly and impartially so far as his knowl-
edge about it was. The number of ballots taken from the ballot-box
corresponded exactly with the number of names upon the poll-books.
He never discovered any evidence of the ballot box having been tam-
pered with when out of his sight and never saw but one key and did not
know of any other. The testimony of the two white judges sustains the
fairness, impartiality, honesty, and accuracy of the whole election pro-
ceedings at this precinct on November 6, 1888.

The contestant was present by counsel and cross-examined the wit-
nesses when this testimony was taken. Nowhere and at no time has
he offered any testimony tending to controvert the testimony of these
election officers upon the facts to which they made oath. In contest-
ant's brief, page 8, we find the followiug concerning this precinct :

We do not claim that the box shall be thrown out or any of the voters disfranchised.
What we claim is that the ballot-box was exposed, and that the return does not show
the true vote, and that in such a case each party can only have the number of votes
he proves up. We concede that poll-books duly certified and returned are pritna
facie evidence of the truth of their contents, and that the burden is upon the con-
testant to show that they do not speak the truth.

With this burden upon himself to destroy the validity of this elec-
tion, the contestant has taken the testimony of 195 men whom lie claims
to have voted at that election and for him, although the preliminary
proof has not made a shadow of a case for such a course.

The county clerk of this county a Republican was called and ex-
amined, February 7, 1889. In his custody were the ballots of this elec-
tion, each one numbered to correspond with the number of the voter on
the poll-book. They were the primary and best evidence as to how the
voter voted. No examination was made of this testimony, which had
been in the safe-keeping of one of the official partisans of contestant
from the day of election. If the ballot-box had been opened it would
have disclosed one of two things, that claim of contestant was ground-
less, or that the judges had made a fraudulent return. Coutestee could
not safely examine this witness of the contestant.

It should be borne in mind that in this precinct and the district there
were two elections in the fall of 1888, one in September; and this one
under examination in November, and that the testimony of these wit-

FEATHERSTON VS. CATE. 139

nesses as to how they voted, from whom they received their tickets,
and what kind of tickets they voted, is taken in February, 1889. One
of the witnesses, Andy Starks, says :

I ain the man who issued all the tickets. I had one man to help me issue. I
can't read to amount to anything; cau't write. I issued the white tickets before
dinner and the red ones after dinner.

The voters in their testimony tell of getting several different colored
tickets from at least ten other persons. Many of the men whose names
are not on the poll-books testify to having voted for a candidate for
Congress. Some swear that others voted that day whose names can
not be found on the poll books. Oue says he did not vote; yet he is
recorded on the poll-books of that day. Some swear they voted a red
ticket in the morning, when none were present to be voted, and one
that he voted a blue Republican ticket before noon. Some say they
voted green tickets; some yellow. One was positive that his Republi-
can ticket was green or blue, and not white or red. More than one
gave names of candidates as being on their ticket that were not upon
either the Republican or Fusion ticket in November, but may have
been on the county ticket in September. Some could not tell whether
they voted for a Congressman at the September or the November elec-
tion, or at some other time, and some did not know who they voted for
for President. The names of many who swear they voted are not
found on the poll-book.

One witness testifies that the Democratic ticket was blue on both
sides. Several of the voters say that that was the color of the tickets
they got from J. U. Jackson that day and voted them. Six of the men
fix the time at which they voted for Featherston in a different mouth
from November.

These facts are mentioned to show that very much of the evidenceis
weak, contradictory, and uncertain. In some instances, what the wit-
nesses should say or do wh^n examined appears to have been put into
their minds just before they were called. Clearly is it shown that from
the lapse of time many of the witnesses confused the September and
November elections, and were not able to recall correctly whether they
attended one or both, and what occurred at such time or times as they
were there.

It is impossible from a careful examination of the testimony to show
that Featherston received a single vote more than was certified for
him at that precinct, ta wit, 131. No pretext for disturbing the re-
turns from this township exists.

Before passing from this county, as reflecting upon the fairness of the
returns, it may be of value to notice the figures for the September elec-
tion for governor, and compare the votes for President on the Oth of
November with the votes for Congressman. For governor, September
election, St. Francis County, James Eagle, Democrat, received 960
votes; C. N. Norwood, Fusion, received 1 ,570 votes, and for President,
November election, St. Francis County, Grover Cleveland, Democrat,
received 838 votes ; Benjamin Harrison, Republican, received 923 votes ;
Streator, Union Labor, received 248 votes. The total vote of both
candidates for President opposed to the Democratic vote is 1,171. For
Congressman, November election, St. Francis County, W. H. Gate,
Democrat, received 762 votes; L. P. Featherston, Republican or
Fusion, received 1,231 votes. Cate received about 20 per cent, less
votes than Eagle did in September, and Featherston about 20 per cent.
less than Norwood did. Cate received 76 votes less than Cleveland did
the 6th of November, and Featherstou 60 more than both Harrison

140

PEATHERSTON VS. GATE.

ami Streator combined. Eemarkably bad stormy weather in that re-
gion accounts for the falling off of the total vote in November as com-
pared with that in September.

The last county to be considered is Crittenden. In this county, at
the September election for governor, Eagle, Democrat, received 1,328
votes ; No/wood, Fusion, received 1,579 votes. At the November elec-
tion for President, Cleveland, Democrat, received 310 votes ; Harrison,
Eepublican, received 1,055 votes ; total, 1,365 votes. For Congressman,
Gate, Democrat, received 316 ; Featherstone, Fushion-Republican, 869
votes ; Barrett, republican, 169 votes ; total, 1,354 votes, but 11 less than
were cast for President.

The contestant, to sustain the ninth, tenth, eleventh, twelfth, thir-
teenth, and fourteenth paragraphs of his notice, introduces the follow-
ing exhibit, which is found on page 228 of the record :

[Exhibit A to deposition of W. B. Eldridge.]

Abstract of poll-books of election held on the 6th day of November, 1888, for Representa-
tive in Congress for the'2d Congressional district of the State of Arkansas, in Critten-
den County, at the following precincts or voting places, and not certified to the secretary
of the state on account of irregularities in the poll-books appearing therein, that the
judges and clerks of said election were not sworn as the law directs.

Total vote.

W. H. Gate.

L. P. Feath-
ers ton.

147

133

Walnut Grove ..............

189

137

Bradlcv

208

105

Edmoudson

Kicisvillc

Gilmore

Scaulin

788

150

62.J

CLERK'S CERTIFICATE TO TRANSCRIPT.

STATE OF ARKANSAS, County of Crittenden :

I, Sam', Keel, clerk of the circuit court within and for the county and State afore-
said, do hereby certify that the annexed and foregoing pages contain a true and com-
plete transcript of the above as therein set forth, and as the same appears of record
in ray office at Marion, Crittenden County, Arkansas.

Witness my band and official seal this 21st day of February, 1889.

[SEAL.] SAM'L KEEL, Clerk.

, D. C.

In regard to this contention, and in order to arrive at a proper under-
standing of these returns and that justice might be done all parties, the
eontestee, on the 16th day of January, in Little Kock, in contestant's
room, proposed that in order that there should be lio trouble in this
matter they would both go in person to Marion, thecounty seat, and get
thereof, to be submitted as proof in this case. It was so determined,
all the facts in relation to these returns, and make an agreed statement
and the Thursday week following was fixed upon as the day to meet at
Marion. Coutestee went on according to the agreement ; contestant
was not there.

While the certificate of the county clerk indicates that he did not
certify to the secretary of state as part of the vote for Representa-
tive in Congress the votes from these seven precincts in this county,
yet we can not concur with the committee that there is sufficient legal
proof to warrant these votes being added to the respective votes for
contestant and contestee in these counties. We shall consider this
matter again further on.

FEATHERSTON VS. GATE. 141

Contestant alleges in his notice with regard to one of these precincts,
viz, Scaulan, that 163 legal voters of said precinct went to said precinct
at the proper time for the purpose of voting for him for Representative
and were prevented from so doing by the unlawful and illegal conduct
of said judges of election and by intimidation of your partisans. The
so-called testimony of these men was taken in Memphis, Tenri., without
notice to contestee and is offered to maintain this charge. We shall
discuss the taking of this alleged testimony along with more of the
same kind hereafter. Let it now be examined and applied as if it were
deserving of consideration.

Willis McGee (pages 225 and 226 of the record).

Q. What is the usual vote in your township ? A. About 125.

Q. How many Democrats? A. About '25 to 30.

Q. What is the usual Republican vote ? A. From 100 to 125,

Q. How many Republican votes were cast ? A. No, sir ; I do not know exactly how
many were cast. I seen about nine or ten.

Q. Please make a list of those names and file it as Exhibit B to your deposition.
A. I do so.

Q. Were a good many men out at the polls that day Republicans! A. Right
smart, and it was raining hard and a heap did not come.

Q. Was there many there didn't vote ? A. Yes, sir.

Q. What was the reason ? A. The boys said it wasn't no use voting; that they do
just as they choose, and they didn't have no show there. They said they all voted
Republican before, solid out through, and they beat them at Scanlan's.

It may be noted here that this witness testifies

First. To ouly a small number voting, and says he filed a list of
their names. This he does not do for some good reason best known to
himself or those concocting this testimony.

Second. It was raining and a heap of Republicans did not come to
the polls.

Third. A good many of them did not vote. He does not even say he
himself voted.

Finally he does not utter a word to show there was any intimi-
dation to prevent any one from voting.

E. B. Fields (R., pp. 215, 216) says about the same as to the voters of
the precinct.

Q. Do you know whether there were any Republican votes cast there that day ?
A. Yes, sir; I give several of them tickets and they sealed them up and said they
was going to vote them just like they was ; didn't open them at all.

Q. How many did you give tickets to? A. lam certain I give four. I give tickets
to several, but I did not know what they did with them ; but I give tickets to some
and they held them in their hands like they were afraid they would get away from
them.

When asked:

Q. Were there any disturbances or rows there in the Presidential election ? A.
No, sir; it was a kind a of day like this. It was raining all day most. Didn't have
no fuss that day.

No intimidation or fraud is shown by this witness. On the contrary,
he denies positively the one and does not touch on the other.

John Johnson, also of Scanlan, is called to this secret Memphis ex-
amination, and his strongest statements are given below :

Q. You say you were at the Presidential election ?
He had said no such thing, but answers :

Yes, sir ; I'm at all them, but then I was there anyhow at that one expressly.
Q. Was there some people come out to the polls that day that didn't vote?~A.
They wanted to vote but was afraid to.
Q. How many people voted there ? A. I counted off 73, and they was voting on.

142 FEATHERSTON VS. CATE.

I didn't go away, but then I weut down the river a little piece and sot aiound. But
everybody that, talked to me after I come up said they was voting Republican.

Q.' You say they voted a Republican ticket ? A. Yes, sir.

Q. How many did you see vote that ticket that day at the polls ? A. About 73; I
think 73. I counted them particularly.

Q. Did you have the tickets in your hand ? A. Yes, sir ; I had about 125 or 130 of
them 150, and* 1 reckon I gave out about 30 or 40 of them that day and saw 75 of
them voted, and stood and looked at them and saw pretty near every man that voted
that day. I read the ticket and knew I was voting for Harrison.

Q. Who did you think you was voting for Congressman? A. I just voted the
straight ticket.

Q. Then this is exactly the ticket you voted? A. Yes, sir.

Q. And this is exactly the ticket you saw voted by 73 other men? A. Yes, sir.

Q. If the people in your township were voted properly how many of them would
turn out and swear to have voted that same ticket that you make an exhibit of
there? A. 35 or 40 or 45.

Q. There is how many if they were properly protected? You issued 73 yourself,
you say ? A. I didn't issue that many, but I saw that many polled from other hands
that was handed round and counted them every one.

Q. Is there any feeling of uneasiness in your community now about their election
matters? A. No, sir ; I don't hear anything more than just common.

Mr. Johnson also says he can furnish a list of those who voted the
Republican ticket, but he never does it. To set aside the election in
this precinct upon this testimony would be an outrage upon the right
of elections by the people. The testimony utterly fails to sustain the
claim of contestant in whole or in the slightest part.

Gat Island Precinct, Grittenden County.

Contestant claims that he received 183 votes in this precinct and con-
testee only 15, and that the election officers, through fraud or mistake,
returned that he, contestant, received only 120 and contestee 88. George
Heudley, examined somewhere in Memphis without notice to the con-
testant, is made to say about as follows :

We have usually voted from 196 to 200 alway in our township; about 14 to 15 Dem-
ocrats and from IbO to 182 and 3 and 4 and so on Republicans. Nearly a full vote out.
Not quite as many voted in the county election. No Republican, to his knowledge
scratched the ticket and none to his knowing voted any other than the Republic;!! 1 .
ticket. All told him they would vote the Republican ticket. There have been con-
siderable uneasiness since July. The people of our community are willing to tell
fully and freely all they know and other portions of the county seem to be the same
way willing to tell what they have done in relat ion to voting in the county and how
they have voted. The judges in our township were all Democrats. We could not
see the box and don't know whether the judges were sworn or not.

Robert Abernethy says he voted at the national election.

Don't know how many colored votes there are in the township ; there are about 25
white voters, the rest are colored. General Republicans nine-tenths of them were
Republicans. I heard them say prior to the time they would vote that ticket under
all hazards. They come through the rain and got their ticket. There was no other
exhibited publicly. Voted the ticket and saw it put in the box.

Nothing more is offered to afford as a pretext for sustaining the claim
of the contestant as to this precinct.

Ferguson Township, Grittenden County.

Contestant claims that 109 legal voters went to the voting place in
said precinct for the purpose and with the intention of voting for him
for Representative and were prevented from doing so by the unlawful
conduct of the judges of election, who were partisans of contestee, and
by intimidation of contestee's partisans.

FEATHERSTON VS. GATE. 143

Thomas Foster (colored), examined in Memphis without notice, says
his usual voting place is Ferguson precinct.

Judges of election at State election supposed to be Democrats. Republican ma-
jority increasing generally about 120 to 125 off and on all day. About 100 to my know-
ing came there for the purpose of voting and the polls not being open they could not
vote. They went off elsewhere to another precinct to vote. There Are about 6 or 8
Democratic votes in the township. I don't know the reason for not opening the polls.
Six of the Winchester crowd came down there once during the fall and took charge of
two men and put them under bonds for their appearance of the circuit court, Jan-
uary term. I don't think the citizens of the neighborhood would be perfectly satis-
fied to turn out and testify under the circumstances that exist there uow. I don't
know about the safe part. They may be perfectly safe in doing so, but I doubt
whether they'd be satisfied to do so.

E. S. Bushing (colored), examined at Memphis without notice, lives
at Jones's.

Q. Did yon vote at the last national election ? A. No, sir ; wouldn't let me vote ;
said I didn't live in that precinct.

Q. Your vote was challenged then? A. Yes, sir.

Q. Was the election at your regular voting place ? A. Wa'nt held ; don't know
why. All of the voters in the precinct was Republicans but about 6. Judges at
State election were Democrats. I was supervisor, and after I was notified that I
was supervisor I went to the polls in order to know the reason or see that there was
an election held there. I was appointed by the proper authorities, and went there
for the purpose of having some kind of an election. No judges came and there was
no election held.

Q. When you found the polls were not open you went to Jones' for the purpose of
voting? A. Yes, sir.

Q. And there you were denied the right to vote ? A. Yes, sir ; none of us voted
at all.

Q. Were there any poll-books or a ballot-box furnished to any one that, you know
of in Fergu^son precinct ? A. There was a ballot-box sent to me at 1 o'clock the
same day. It was about 1 o'clock. I was in my store; had a clock in there and the
ballot-box come there. The fellow came ; he looked like he came in haste. He come
there with the ballot-box and poll-books and everything. Says, " I want you to hoW
election at Fergusson's." I says u I aiut the judges." " Well," he says, "you are ap-
pointed as supervisor." I says, " I have no notice of that." "Well," he says, ''it's
in this thing." And I took it and looked in there and I saw I was appointed super-
visor at Fergusson's and Jones'. I thought that was a mere mistake. I don't knoiv
how come at two places, but then my name was on at Fergussou's and Jones' and I
thought it was very necessary to vote for Harrison as President, and 1 wanted to
vote the whole ticket, especially Featherston ; wanted to vote the whole ticket. We
voted the State and county ticket solid Republican. There wa'ut but six men weut
against us at that precinct and we voted 128 or l.sO there. The reason I didn't hold the
election was because I sent it to the judges of the election. I thought they were
elected for a certain term under proper authorities. I sent it to them and ordered them
to open the polls immediately, that I was going to hold an election. There was none
held at all ; there was people coming there all day ; I reckon there was more than 25
or 30. I reckon there was more than them. Of course I counted that many citizens
of the county and there was citizens of the United States and we couldn't vote."

Eev. T. J. Jones (colored) says also at Memphis :

My usual voting place is Fergusson's, though I voted Jones' on the national elec-
tion Presidential election voted at Jones', was at Fergusson's first about two hours,
I reckon. About 100 come to Fergusson's during the day to vote. I did not know
all of them. I knew one part of them. They all was Republicans.

Q. They all turned out to vote ? A. Yes, sir ; all but about a few white men was
in the crowd. They was Democrats. I didn't see any of those white men at the
polls, but in that precinct 4 or 5 of them was Democrats. All the judges pretty well
lived there in that voting precinct are Democrats, but I didn't see them all duriug
the day.

If there were two voting places in that township for national elec-
tions, and if these witnesses speak truth, why was not an election held
at both as the law authorized, by judges chosen by the people ? The
witness, Jones, gives the true state of the case. There was but one
voting place for that township for national elections, which was at

144 FEATHERSTON VS. GATE.

Jones's. It is not necessary to guess at what might have been the result
The certified returns show that contestant received 47 votes there that
day for Representative in Congress and contestee received 5 votes. Xo
evidence of intimidation or fraud by partisans of contestee anywhere
appears.

Grawfordsville, Crittenden County.

Contestant's claims as to this precinct are as follows :

I received for Representative 330 votes and you received 71 ; that the election offi-
cers of said township, who were partisans of yours, through fraud or mistake returned
that I received only 147 votes.

Contestant, instead of taking evidence in the county to sustain this
charge, offers evidence taken in Memphis, to show that when he and
his attorney went to Crawfordsville to take testimony they were not
treated with the courtesy and politeness which the citizens of a town
are supposed to extend to a stranger who is there on legitimate busi-
ness; that the people were bitterly opposed to Featherston making an
investigation of the election, and two of them made threats; that the
attorneys had to get their meals at a colored restaurant and spend the
first day in a saloon, and then had to sleep at the house of a colored
merchant; that Mr. Berry, attorney for Mr. Gate, refused to act as
notary, though he had before promised to do so ; that some 6f the peo-
ple were drinking, and friends of Featlierston took him out of a crowd
to prevent difficulty, and that a majority of the voters who voted for
him would be afraid to testify there, and a mass of other matter which
in nowise relates to the merits of this contest.

We shall now discuss the question whether testimony taken as this
was should be considered by the House, and weigh it for its worth.
As we have repeated, it was taken without notice and in violation of
law.

Act of March 2, 1875 (laws 2, 43, p. 338) : It is provided that the
party desiring to take depositions under the provisions of this act shall
give'the opposite party notice in writing of the time and place when
and where the same will be taken ; of the name of the witness to be
taken, and their places of residence, and of the name of the officer be-
fore whom the same will be taken.

To pretend not to evade these requirements of the law W. B. Eld-
ridge says in his deposition :

I notified L. P. Berry, the attorney of Mr. Gate, that Featherston would take
proof in Memphis, Tenn., at my office on February 24, 1889. Walsh and myself both
notified Berry that we would begin taking proof at 59 Madison street, Memphis,
Tenn., February 25, 1889.

We here introduce the affidavit of Mr. Berry, which flatly contradicts
Mr. Eldridge upon this point.

STATE OF ARKANSAS, County of Crittenden :

I, L. P. Berry, an attorney at law, resident at Marion, Crittenden County, Ark.,
being sworn, do state that I have befoie me a printed copy of the evideuce in the
case of L. P. Featherston vs. W. H. Gate in the contest for a seat in the Fifty-first
Congress of the United States from the first district of Arkansas, wherein it appears,
on page 227 of said printed record, that one W. B. Eldridge states or testifies as fol-
lows: "I notified Mr. L. P. Berry, the attorney of Mr. Gate, that Mr. Featherston
would take proof at Memphis, Tenn., at my office, on the Congressional contest ; on
February 23 Mr. Henry Walsh and myself both notified Mr. Berry that we would
begin taking proof at 59 Madison street, Memphis, Tenn., at 9 o'clock on February
23, 1889," and I further state that this statement is untrue, and without any founda-
tion in fact; that Mr. EJdridge and Mr. Walsh did not give me any such notice, nor
either of them as he states, and I never knew of evidence relating to Ciitteuden

FEATHERSTON VS. GATE. 145

County until I saw it printed in the record, nor do I to this day know at what place
said supposed evidence was taken.

I further state that I was only authorized to act for Mr. Gate as his attorney in said
County so far as related to taking proof in Crittenden County, Arkansas, and had no
authority to represent him or take proof elsewhere, or accept, ftsceive, or waive any
notice relative to taking proof elsewhere.

L. P. BERRY.

Sworn to and subscribed before me this January 10, 1890.

[SEAL.] SAM'L KEEL, Clerk,

By O. M. TUFTS, D. C.

If, however, there were no questions of the truthfulness of Mr. Feath-
erston's lawyer, it is clear that the notice could not have been in writing
giving contestee the material facts concerning the witnesses to be ex-
amined. It was a plain violation of the law in that respect for some
covert reason.

The officer shall cause the testimony of the witnesses, together with the questions
proposed by the parties or their agents, to be reduced to writing in his presence, and
in the presence of the parties or their agents, if attending, and to be duly attested
by the witnesses respectively (R. S., sec. 122).

The certificate of the notary, E. M. Avery (page 185 of the record),
shows that this provision of law was violated. Although he attempts
to give the impression that the words of the witnesses were reduced to
writing by type- writer, and submitted to witnesses and attested by
them, he says the short-hand reporter's notes are herewith transmitted,
etc.

The performances with the witnesses he said occurred in February
and early in March. His certificate is dated July 13, and upon the
original papers on file in the committee room, the names are all signed
by type-writer, even of those who are represented as signing their own
names, except Eldridge's and one other's.

All officers taking testimony to be used in a contested election case, whether by
deposition orotherwise, shall, when the taking of the same is completed and without
unnecessary delay, certify and carefully seal and immediately forward the same by
mail or express to the Clerk of the House of Representatives. (Act approved March

2,1887.)

This provision of the law is also disregarded. What good reason can
be given for this unlawful course ? In this case the legal time for tak-
ing testimony closed April 15. As required by statute the Clerk of the
House of Representatives notified parties that they should appear be-
fore him June 28, for the purpose of being present at the opening of
the sealed packages of testimony and of agreeing upon the parts thereof
to be printed. They came here. Only part of the depositions were in
the hands of the Clerk. None of those taken in Memphis were on file.
Contestant asked for further time, which was granted, and contestee
maiued here waiting until July 7 ; but these papers were not filed,
n July 21 they were at last filed. Contestee never saw them or
rned their contents until a printed copy of them reached his hands
ate in September. The contestant and his attorneys have never at-
tempted any explanation or offered any excuse for this extraordinary,
suspicious, and illegal delay. The. contestee was without any oppor-
tunity to be present and see and hear these witnesses while they were
telling their tales or to cross-examine them or to bring proof subse-
quently to explain or contradict their statements. Their record is full
of the abuses which occurred under such circumstances.

Leading questions forcing false statements from the lips of ignorance
are found upon nearly every page. In more than one instance the wit-
ness has thus placed on his tongue a statement contradicting others he
H. Mis. 137 10

146 FEATHERSTON VS. GATE.

has just made. Perjury so striking and peculiar that it would be ridicu-
lous if it were not pitiable, discredits more than one page. In such a
way the contestant seeks to have the returns at Crawfordsville set
aside and himself given the same vote as the electors for the Republi-
can national ticket received at this precinct, although there was a reg-
ular Republican candidate for Representative, a resident of St. Francis
county, who divided that vote with him.

The clerk's certificate shows that the Republican electors received 330
votes, the Democratic electors 71 votes. It also shows that W. R. Bar-
rett, for Representative in Congress, received 160 votes ; L. P. Feather-
ston, 147 votes; Willi m H. Cate, 88 votes. The majority report has not
been submitted to us, so that we do not know upon what claims the
committee proposes to unseat this member of Congress duly elected by
the people of one of the largest and most populous, enterprising, and
intelligent of the districts of the State of Arkansas.

The coutestee comes here with a certified majority of 1,348. If all
that is claimed for contestant in Phillips County were allowed, which
is 181, that would leave him 1,167 ; and then if the votes in the seven
townships of Crittenden County, not certified up by the clerk were
allowed as if there were no question of their legality there would be
522 for Featherston, less 150 for Cate, or 472 more to be taken from
contestee's majority, 1,167, leaving him a majority of 595, to which he
is rightfully entitled.

But suppose the House should go a step further and give the con-
testee arbitrarily the 169 votes cast for the true Republican, Barrett,
at Crawfordsville, to punish the citizens of that town for their im-
politeness, discourtesy, and rudeness to contestee. that even would not
obliterate the majority of the sitting member, but only reduce it to
426.

Therefore we recommend the passage of the following resolutions :

Resolved, That L. P. Featherston was not elected as a Representa-
tive to the Fifty-first Congress from the First Congressional district of
Arkansas.

Resolved, That William H. Cate was duly elected and is entitled to
retain his seat.

JOS. H. OUTHWAITE,

CHAS. F. CRISP,
CHAS. T. O'FERRALL,
LEVI MAISH,
L. W. MOORE,
EGBERT P. C. WILSON.

S. E. MUDD vs. BARNES COMPTON.

FIFTH MARYLAND.

Contestant claimed (1) to be elected on the face of the precinct returns,
and that these returns are primary ; (2) to have a majority of the legal
votes after the deductions and additions required by the evidence are
made ; and (3) that he had been deprived of 175 votes in one precinct
by violence and intimidation. All three claims are sustained by the
committee, the minority dissenting both as to the law and the facts (see
minority report, page 161). The resolutions presented by the committee
were adopted March 20, 1890, by a vote of 159 to 145, and Mr. Mudd
was sworn in. The debate will be found on pages 2392 to 2449 of the
Kecord.

(1) Returns. Which primary evidence.

According to the law of Maryland, the duties of the presiding judges
when assembled at the county seat, are purely ministerial. They are
to add up the votes of the precinct returns on the books of the polls
and to certify the results of this addition to the governor. They can
neither throw out votes certified by the precinct judges, nor return votes
not certified by the precinct judges. It is presumed, of course, that the
presiding judges will do their work accurately, and that their returns
to the governor will contain a correct summary of the votes in their
county. This presumption is, however, merely a prima facie one, and
can be rebutted at any time by showing that these returns were, in fact,
not a correct summary of the precinct returns ; and when this is done,
the returns to the governor must be disregarded and resort had to the
primary evidence of the result of the election; that is, to the precinct
returns themselves.

(2) Ballot. Imperfect.

Whenever the intention of the voter is clear and unmistakable, effect
should be given to it.

(3) Burden of proof.

When it appears that the contestant was elected on the face of the
returns, the burden of showing that these returns were not correct is
thrown on the contestee.

(4) Votes unlawfully rejected,

147

148 MUDD VS. COMPTON.

The votes of legal voters who duly offered to vote and had their votes
refused, the judges truthfully or falsely alleging that some one else had
previously voted on the name, should be counted for the condidate for
whom it is proved they offered to vote.

(5) Votes. Names not on poll book.

A large number of votes was rejected because the voters who had
'duly applied for registration, and been registered, found their names
omitted from, or inaccurately copied on, the poll books. It was claimed
that these votes could not be counted, because the law of Maryland
makes the poll books conclusive evidence of the right of a man to vote.
Held, that the law simply lays down a rule of evidence for the guidance
of the judges of election, so as to reduce to a minimum their judicial
functions. The votes should be counted on a contest.

(6) Votes improperly rejected .

Where votes were rejected by the judges because of real or assumed
doubts as to the identity of the voters presenting themselves; held that
where their identity is clearly established, these votes must be counted
for the candidate for whom they were tendered.

(7) Intimidation. Amount of violence necessary.

The committee holds that a citizen has a right to a free and unmolested
approach to the ballot box, and is not bound to fight his way to a poll-
ing window, especially when to do so he must come into conflict with
persons who claim to be officers of the law, the truthfulness of which
claim he has no means of negativing, and that a candidate whose sup-
porters have done all in their power to make voters believe, that they
would suffer injury if they attempted to vote, can not be heard to say
that the intimidated voters should not have believed the threats made
to them.

REPORT.

FEBRUARY 27, 1890. Mr. COOPER, of Ohio, from the Committee on
Elections, submitted the following report:

The Committee on Elections, having had under consideration the con-
tested election case of Sydney E. Mudd, contestant, against Barnes
Compton, coritestee, from the Fifth Congressional district of Maryland,
submits the following report:

At an election held on the 6th day of November, 1888, Barues Comp-
ton and Sydney E. Mudd were, respectively, Democratic and Republican
candidates for election as Representative to the Fifty first Congress
from the Fifth Congressional district of Maryland. The former obtained
the governor's certificate and now holds the seat. .

His right to it is contested by the latter, who asserts

(1) That he was elected, on the face of the returns, by a plurality of
three votes, receiving in all (as appears on the precinct returns) 16,283
votes, while the contestee, as appears from the same returns, received
16.280 votes.

(2) That he was elected, if all the votes for both contestant and con-
testee improperly rejected are counted for them, respectively, and all
votes improperly counted for them are deducted.

(3) That at the first precinct of the third district of Anne Arundel
County (the vote of which was returned for contestee 168, for contestant
32) the partisans of the contestee, by violence, threats, and intimidation,
prevented 175 legal voters who wished to vote for contestant from
doing so.

PRIMA FACIE CASE.

The law of Maryland (Code Public General Laws, section 66, article
33, record, page 639) requires the judges of election, as soon as the bal-
lots are read off and counted and the number for each candidate reck-
oned up and ascertained, to make out under their hands on the books
of the polls two distinct statements and certificates of the number of
votes which have been given for each candidate. The presiding judge
of election (section 68, article 33, Code of Public General Laws) takes
charge of these two poll-books containing these certificates and state-
ments, and on a subsequent day, within ten days after the election, all
the presiding judges of each county assemble at the Court-house of their
respective county. When so assembled, (section 69, article 33, Code of
Public General Laws, Record page 640), the presiding judges cast up the
entire vote of all the districts or precincts of the county, and make out
two distinct certificates or statements of the number of votes given in
their county for each candidate. Due of these certificates is then to be
delivered to the clerk of the county court for the county and the other
to be mailed to the governor. The governor then issues a certificate

149

150 MUDD VS. COMPTON.

to the person who, from the returns so sent to him, appears to have
been elected.

According to the law of Maryland, the duties of the presiding judges
when assembled at the county seat, are purely ministerial. They are
to add up the votes of the precinct returns on the books of the polls
and to certify the results of this addition to the governor. They can
neither throw out votes certified by the precinct judges, nor return
votes not certified by the precinct judges. It is presumed, of course,
that the presiding judges will do their work accurately, and that their
returns to the governor will contain a correct summary of the votes in
their county. This presumption is, however, merely a prima facie one,
and can be rebutted at any time by showing that these returns were,
in fact, not a correct summary of the precinct returns; and when this
is done, the returns to the governor must be disregarded and resort
had to the primary evidence of the result of the election; that is, to the
precinct returns themselves.

In this case the returns forwarded to the governor footed up for
Barnes Comptou 10,000 votes ; for Comptou 1 vote ; for Sydney E. Mudd
15,819 votes; for S. N. Mudd 1 vote. The contestant denies the accu-
racy of said returns to the governor, and files duly certified copies of
the precinct returns from every precinct in the Congressional district
(record, pages 712 to 779), which show that the vote in the district for
the contestant and the coutestee was as follows :

For Sydney E. Mudd 16,279

For S^ N. Mudd 1

For S. E. Mudd 1

For Mudd 1

"One ticket upon which Sydney E. Mudd's name appeared twice and Mudd's
name was not counted in the above returns"... 1

Total 16,283

For Barnes Compton 16,280

Plurality for Sydney E. Mudd 3

Comparing these precinct returns with the returns made to the gov-
ernor, it is found :

(1) That the returns to the governor from the counties of Howard,
Anne Arundel, and Baltimore, and from the city of Baltimore, were ac-
curate summaries of the precinct returns and were correct.

(2) That in the third district of St. Mary's County there were returned
by the precinct judges 1 vote for u S. E. Mudd," and 1 vote for " Mudd,"
but the presiding judges did not include these votes in their return to
the governor.

(3) That the returns from the fifth and ninth districts of Charles
County were not included in their returns to the governor, because at
the time the presiding judges made up their returns the returns from
these precincts were sealed up in the boxes which the presiding judges
had no authority to open. These boxes were afterwards opened by an
order of court, and certified copies of the returns found in them have
been filed, which show that the contestant received in these districts 432
votes and the contestee 280 votes.

(4) That the face of the precinct returns from the sixth district of
Charles County shows

There was one ticket upon which Sydney E. Mudd's name appeared twice and
Mudd's name was not counted in the above returns.

(5) That in Calvert County the returns to the governor allow the
contestant 1,138 votes, whereas the actual vote cast and counted in this

MUDD VS. COMPTON. 151

county, and shown by the certified copies of the precinct returns
(record, pages 746 to 749), was 1,166. Mr. Mudd called the return judges
of every precinct in the county (record, pages 271-275), and proved by
them that the returns then on file in the clerk's office were the very re-
turns which they made and were in no way altered. He proved by the
editor of the Democratic paper in the county town that on the day the
returns were made up, he copied them for his paper and that they gave
the contestant 1,166 votes. He proved by the clerk of the court that
immediately upon seeing it stated in the newspapers that the return to
the governor gave the contestant only 1,138, he wrote to the governor
stating that a mistake had been made and asking permission to correct
it. The deputy clerk of the court who made up the returns to the
governor, swears himself that these returns so sent on by him were
erroneous and that those in the clerk's office were correct (see record,
pages 271-275). If the precinct returns of any precinct had been
altered, the contestee could have offered some evidence to show that
such alterations had taken place, but he did not, in fact, take any testi-
mony whatever upon the subject. The committee believe that the con-
testee is simply trying to raise a technical point of evidence to defeat
the contestant's claim to 28 votes, which no one can seriously doubt
the contestant received, and that the contestant's vote in Calvert County
was 1,166.

(6) That in the precinct returns from Prince George's County (record,
pages 762-772) there was no mention of a vote for " Uompton," which
the presiding judges in their return to the governor say was cast in the
tenth district of the county, and consequently the presiding judges had
no right to includes it in their return to the governor. The contestant
has, however, attempted to show that he was entitled to the vote by
offering in evidence a certificate of the clerk of the court of the county
(record, page 610), that on one of the tally-lists of the district there ap-
pears, " one ticket for * Coinpton,' not counted for Barnes Compton ; " on
the other of said tally-sheets, " one ticket for Coinpton, torn, not counted
for Barnes Compton." There is no other evidence concerning this vote.
The tally lists are not a part of the certificate or statement from which
the law requires the presiding judges to make up their return; and if
they were, their contents are not sufficiently proved by a certificate of the
clerk that such and such a thing appears upon them. Public officers
prove public records, not by statements as to what their contents are,
but by certified copies of the documents themselves. Moreover, it would
seem, from statements quoted from one of the tally -lists referred to, that
the judges may have decided that the voter intended to cancel his ticket
as to candidate for Congress by tearing it.

For these reasons the committee does not think it clear that the con-
testee is by the evidence entitled to this vote, but thinking it likely
that such a vote may have been cast, has concluded to allow it. Upon
the face of the returns the committee, therefore, finds that the vote
stood :

For S5'dneyE. Mudd.. ...... .16,279

For S.E. Mudd 1

For S.N. Mudd 1

For Mudd 1

One ticket on "which Mudd's name appeared twice, not counted for Mudd 1

16,283

For Barnes Compton 16,280

For Compton 1

16,281

Plurality for Sydney E. Mudd -.. 2

152

MUDD VS. COMPTON.

There were no persons by the name of Mudd and Compton other
than the contestant and the contestee candidates for Congress at this
election ; and, therefore, under the well established rule of the House,
the vote for " Cornpton " if counted at all should be counted for the
contestee, and the votes for S. E. Mudd," for "Mudd" and for "S. N.
Mudd" for the contestant. It is well settled by the authorities that the
fact that the same candidate's name is on the same ticket more than
once, is no reason why that ticket should not be counted, as one vote,
for that candidate. It would, therefore, follow that the contestant is
entitled to the one vote not counted for him, because his name is on the
ticket twice. The contestee has, however, offered evidence (Record,'
pp. 455-457) that this ticket was not counted for the contestant, not
because the name was on the ticket twice, but because the paster (upon
which his name was printed) was pasted on the regular Republican
ticket so as to cover up the designation of the office for which he was
a candidate. If this be granted, it still remains true that whenever the
intention of the voter is clear and unmistakable, effect should be given
to it ; and no one can have any doubt that the voter of this ticket a
straight Republican ticket intended to vote for Mr. Mudd for the only
office for which he was a candidate. No provision of a statute regula-
ting the form of ballots will be held, or was ever intended to be held,
as mandatory in contravention of such a plain and manifest intent.
The committee is, therefore, of the opinion that the contestant is entitled
to this vote ad will count it. The face of the returns, then, in the
opinion of the committee, show that the contestant was entitled to
16,283 votes, and the contestee to 16,281 votes, giving the contestant a
plurality of 2 votes. Such being the case, the bjurden of showing
that these returns (the primary evidence of the result of the election)
were not correct, is thrown on the contestee.

REVIEW OF DISPUTED VOTES.

The committee holds that the votes of legal voters who duly offered to
vote and had their votes refused, the judges truthfully or falsely alleg-
ing that some one else had previously voted on the name, should be
counted for the candidate for whom it is proved they offered to vote. It
is bad enough that a person who has no right to vote gets his vote in ;
it would be worse if by getting his vote in he kept an honest man's vote
out.

Under this ruling the contestant gains the votes of six persons, whose
names, their county and district, the allegation of the notice under
which the tender and refusal of their votes was proved, and the pages
of the record showing the proof, are as follows :

Xame.

County and district.

Under
allegation.

Pages of record.

Butler Win .. ..

1st precinct, 13th district, Baltimore

15, 17, 286 288, 674.

County.
1st district, Charles County

252, 254.

3d district, Prince George's County ..

259, 260.

Green, Chas H

260, 261.

13th district, Prince George's Couniy.

201. 2C2, 263.

"Williams Thos

1st pre't, 18th ward, Baltimore County

37, 38, 40 41 320, 322 669.

MUDD VS. COMPTON. 153

Contestee proves no votes of this class.

A large number of votes, on both sides, were rejected because the
voters who had duly applied for registration and been registered found
their names omitted from or inaccurately copied on the poll-books. It
is urged by the con testee that the law of Maryland makes the poll-book
conclusive evidence of the right of a man to vote ; and that these votes
can not be counted. The committee can not assent to this proposition.

The law simply lays down a rule of evidence for the judges of election,
and is intended to reduce to a minimum their judicial functions. Into
the qualification of voters they can not inquire. All they have the right
to pass upon is the question : whether or not a person offering to vote
is the person whose name is on the poll-book. This limitation is im-
posed upon them, because in the view of the Maryland law a polling
window, on election day, is not a proper place to investigate questions
of qualification. A simple rule is laid down for the guidance of the
judges, and any injustice which may be done by the application of this
rule can, if necessary, be corrected by the tribunal before which the
contest is made. The class of cases about which we have been speak-
ing, together with another class represented by a vote on each side in
which the voter was improperly refused registration, are the very sort
of cases to provide clearly for which the third section of the act of Con-
gress of May 31, 1870, was enacted, which section read as follows :

That whenever, by or under the authority of the constitution or laws of any State
or the laws of any Territory, any act is, or shall be, required to be done by any citizen
as a pre-requisite to quality or entitle him to vote, the offer of any such citizen to
perform the act required to be done as aforesaid shall, if it fail to be carried into ex-
ecution by reason of the wrongful act or omission of the person or officer charged
with the duty of receiving or permitting such performance or offer to perform or acting
thereon, be deemed and held as a performance in law of such act, and the person so
offering and failing as aforesaid, and being otherwise qualified, shall be entitled to
vote in the same manner and to the same extent as if he had performed such act.

The admission of such votes is in accord with the unvarying practice
of Congress and the almost uniform decisions of the courts, and the
committee will count all such votes properly proved on both sides.

The con testee has offered to prove a number of votes lost by him be-
cause of inaccuracies on the poll-books, not otherwise referred to in his
answer than by an allegation that in a very large number of other
election districts he lost votes from this cause, and more votes from
such cause than the contestant.

The contestant objects to the admission of this testimony on the
ground that this general' allegation does not, in the language of the
statute governing contested elections, state " specifically the other
grounds" upon which the sitting member rests the validity of his elec-
tion ; and the committee is inclined to agree with the contestant, but
as the committee in this case has no doubt that the contestee was really
entitled to some of the votes of this class which he has proved, the con-
testee will be allowed the votes he has proved he lost from inaccuracies
of the poll-books, whether the loss of these votes was or was not specif-
ically alleged. The committee, however, on the same principle, will
allow the contestant the votes he proved in rebuttal of the contestee's
allegation in paragraph 9 of his answer, that the contestee lost more
votes than the contestant because of inaccuracies on the poll-books. In
most cases the contestant proved how the person, whose vote he claimed
to have lost in this way, would have voted had his vote been received,
by the testimony of the voter himself.

The contestee, in a much larger proportion of the votes he proved,
proved how they would have voted by other and less conclusive testi-

154

MUDD VS. COMPTON.

inony, in some instances by merely proving that the voter was or had
been a Democrat. The contestant objects to votes proved in this last-
mentioned way being counted, on the ground that as he received a
great many Democratic votes in the district, there is 110 certainty that
these voters wanted to vote for contestee. The committee, however,
has decided to allow the contestee these votes. Under these rulings,
therefore, the contestant gains the votes of forty-four persons forty
under specific allegations and four in rebuttal under general allega-
tion above referred to.

The names of these voters, their county, and district or ward, and
precinct, the allegation of the notice under which these votes were
proved, and the pages of the record containing the proof, are as fol-
lows :

Forty under specific allegations.

Name of voter.

Elec. dist. or pre

a
t o

c a
a u
.2
"

P. of rec.

1st pre., 13th dist., Baltimore
1st " 13th " "

1st " 13th " "
1st " 13ih "
1st " 13th "
1st " 17th ward, Balto. Cit
1st ' 17th "
let. ' 17th "
2d ' 17th "
9th ' 17th " '
9th ' 17th "
9th ' ]7th "
9th ' 17th "' '
1st ' 16th ' '
1st ' 16th '
1st ' 16th . ' '
1st ' 16th
1st ' 16th wa-d, Bato. C
1st ' 16th
1st ' 16th
3d ' 1st dist. Baltimore C
1st " Howard
6th "
6th "
3d pre. 1st " Baltimore
3d " 1st "
6th ' Howard
1st '
1st
3d pre. 1st ' Baltimore
5th ' Charles
5th '
5th dist. Charles C
5th "
5th '
8th St. Mary's
5th ' " '
5th '
5th '
1st pre. 5th ' AnneArun.

12
12

12
12
' 12
15
15
15
16
17
17
17
17
18
19
19
19
19
18
18
13
23
31
31
13
13
31
23
23
13
26
26
26
26
26
11
10
10
10
8

11, 681, 17, 285, 291, 293, 328,
420,504,505,508,510.
13,682,17,286,291,292.

13, 683, 17, 286, 291. 292, 329.
14, 676. 17, 2i*6, 292, 329, 508.
18, 43, 6hO, 285.
10,655.20.21.23,24,42.

I'd, 22, 2.;, 24. 6.^6, 42, 44.
20,22,23,24,657,41.

Hopkins, Mai. or Melchis-
eflek.
Miller A.W.Herman

...

Gamble, Daniel E

Johnson Winfleld S

Wilder John D

...

Lutsche George H

Virts John R

25, 6;>9, 26.
26,27,661.
27, 28. 661.
28, 662.
29,663.
30,31,34,35,36.395,665.
31,665,35,36,307.
32, 666-
32, 33, 667, 36.
33, 34. 668, 36.
3t. 36. 43, 670.
36.245,710.
45, 46, 677, 330, 500.
47. 689, 297,3/7.
49, 51. 685, 298, 558.
49,236,684,298.
50. 670, 329.
50, 675, 3IiO.
48, 236, 686, 298, 55*
52, 687, 327.
53, 688, 327.
235, 678, 330.
216 248.
246, 247, 251.
247, 249.
247, 252.
248, 250.
265, 650, 587.
266, 652, 587.
266, 587.
268, 269, 653.
165, 672.

Taylor, John

Hill Wiiliam Henry

Smith, Geo. Washington . . .

Sampson. Joseph H

Reed Robert

Richardson, Wm. T
Gordon Philip

Kellar, Ishmael W

Thomas William

Whi i temore, Charles W

Four in rebuttal.

1 P. 1 D. Bait. Co

393 394,493 555

8 D. Anne Arundel Co

556 792.

Holt Levi G

8D. "

556 557 790.

7 D. St. Mary's Co

575 576 594.

MUDD VS. COMPTON.

And cpntestee gains 17 sucli votes, those of Benj. F. Chappelear, B.
F. Gover, Clifford Sweeney, Wm. K. Dawson, Ferdinand E. Burch,
Chas. F. Burler, John E. Garnett, Jas. W. Wheatley, Dalton Howard
Fisher, John H. Iglehart, Andrew M. Lainhart, Edward Woods, John
M. Todd, John H. Turner, Chas. W. McCready, Richard H. Carter, John
Kalb.

The committee considers there is no sufficient evidence that Albert
F. Berry was a registered voter at the time he offered to vote or that he
had any right to be registered ; that there is no evidence whatever that
John T. Butler was not properly stricken off; and that the very certifl

,te filed by the coutestee to prove that Cbas. H. Soper, James R. Ede-
in, Wm. R. Thomas, Francis Tolson, and Andrew V. Convey were regis-

red voters, shows, in fact, that these men never were entered by the
fficer of registration as qualified voters at all. The law of Maryland
(Code of Public General Laws, article 33, section 14, record, pages 624-
625) requires the officer of registration, so soon as an applicant of regis-

ation presents himself and before he is sworn, to write down his name.

he officer then swears him and examines him, and if he finds he is quali-

ed, he again writes his uame in the column of qualified voters.

The certificate filed (record, page 586) indicates that the names of
hese men were not entered in this column. None of them were ex-
mined personally, and there is no evidence that they were by law en-
itled to registration. (See record, pages 468-70, where all the evidence

neerning sa'd persons is set forth.)

There is another class of cases in which the judges rejected votes be-

use of real or assumed doubts as to the identity of the voters preseut-

g themselves. Wliere their identity is clearly established, these votes

ust be counted for the candidate for whom they were tendered.

Under this ruling the contestant gains 4 votes, whose names, with

milar references as above, are as follows :

Name of voter.

County, city, ward, or district.

Under
allegation.

Pages of Record.

Bell, Thomas

1st pro 13th dist Balto Co

16 17 673 286 ">S7 288 289

Booth! Samuel H

Cooper, Gnstavns Elzear . . .
Weems, Wm. Chapman

Istpre., 17th ward, Balto. City
5th dist. St. Mary's Co

do M

15
10
10

292,505,608,510.
20, 22, 23, 24, 658, 42, 45.
267. 049, 269, 587.
269 270 654 587.

The coutestee recounted the ballots at the sixth and seventh precincts
of the fifteenth ward, of the first precinct of the sixteenth ward, and
of the first, second, third, fourth, fifth, sixth, seventh, eighth precincts
of the seventeenth ward of Baltimore City, and of the first district of
Baltimore County. He asked for the recount in his answer, but with
the exception of the first precinct of the first district of Baltimore County,
and the first precinct of the sixteenth ward of Baltimore City, he laid no
foundation for a recount by showing any ground to suppose that a mis-
take had been made. All the presiding judges examined by the contes-
tee himself were Democrats, as were the majority of the judges in each
of the precincts recounted. All the judges examined swore that they
believed their count was correct. It is a strange circumstance that
these Democratic judges should have uniformly made mistakes to the
prejudice of their own candidate. The officers in whose custody the

15G MUDD VS COMPTON.

boxes were, between the election and the recount, were all Democrats.
The contestee recounted some precinctsof a ward and not others, and
there is not a shred of evidence to show why some were recounted and
others not. It is clear that it any one had access, even for a few mo-
ments, to the ballot-boxes, they could have been opened and their con-
tents altered and then closed again without leaving any trace of dis-
turbance.

The contestee gained 19 votes on the recount. These votes we allow
him, although we feel that there is something very curious about the
whole matter. We allow contestee's claim, based on a recount, that a
vote should be deducted from the contestant in the ninth district of
Charles County, making a loss to the contestant of 20 votes on the re-
count. The committee also allows contestee a vote he claims he should
gain in the seventh district of St. Mary's County upon which his name
was written and that of the contestant is claimed to have been
scratched, although there is no allegation in the answer of contestee
under which the prool of either of these votes is strictly admissible.

We deduct from the toutestee 1 vote in the second district of Cal-
vert County, being satisfied that there was counted for the contestee a
ticket from which his name was scratched. (Eecord. pages 271-273.)

Under the above rulings the

Contestant having on the face of the return. . , 16, '283

Gains, votes rejected because some one had illegally voted on the voter's name 6

Votes rejected because of inaccuracies of poll and registration books 44

Votes rejected because ot a doubt as to identity of voters 4

1(5, 337
And loss on recount .. 20

16,317

Contestee having on the face of the return 16,231

Gains, one vote in Seventh district of St. Mary's County 1

Votes rejected because of inaccuracies on poll or registration books 17

1C. 299
Vote rejected because of doubt as to identity of voter 1

Loss, one vote in Calvert County

The contestant, who had two plurality on the face of the returns,
makes a net gain by correcting these individual errors of sixteen votes
and his plurality stands at eighteen votes ; this, too, after allowing the
contestee all he can possibly claim, and more than we think the strict
and perhaps safe rule of law would authorize.

Furthermore, if every one of tfte other votes which the contestee claims
(but which the committee does not allow him) were given him, the only
effect would be to reduce the contestant's plurality and would not ali'ect
the final result.

INTIMIDATION OF CONTESTANT'S SUPPORTERS BY THOSE OF CON-

TESTEE.

The committee finds that the votes of the first precinct of the third dis-
trict of Anne Arundel County should be thrown out. The vote, its re-
turned in this precinct, was 168 for the contestee and 32 for the contestant.
The undisputed facts concerning this precinct are, that there were regis-

MUDD VS. COMPTON. 157

tered therein 475 persons, 252 of whom were white and 223 colored ; that
of these 475 only 206 voted, and of those who voted 191 were white men,
and 15 were colored ; that when the polls opened 4 white men voted,
then 15 colored men, and then 187 white men. The contestant has ex-
amined 175 colored voters of this district who did not vote ; of these 175
161 were on the polling ground ; many of these walked or rode many
miles to the polls, and some who were temporarily away from home re-
turned from Baltimore, Annapolis, Steelton, and other places to vote.
All of these men swear that they wanted to vote (and most of them
were at the polls with their tickets in their hands for the purpose
of voting) for the contestant j 14 others swear that they started from
their homes and walked a greater or less distance towards the polls
and then turned back, in consequence of what they heard as to the
proceedings at the polls.

There is no dispute that there were present at the polling place, from
before the opening of the polls at 8 o'clock in the morning until late in
the afternoon, a number of persons who were not residents of the pre-
cinct ; that those of them who were identified were residents and regis-
tered voters of Baltimore City, and that they drove down from Balti-
more, reaching the polls before any of the voters, and drove back in the
late afternoon ; that those men, or some of them, wore badges with the
words U TJ. S. deputy marshal" upon them, and claimed to be such;
that this claim was altogether false ; that these men were armed with
pistols, which at certain periods of the day they were firing within the
hearing of the polling place; that there were a number of guns in a
wagon which brought them from Baltimore; that before the polls opened
they placed themselves within a few feet ol the window at which the
citizens were to vote, and that in a very few minutes after the polls
opened they seized and dragged from the line two or more colored voters
(among them a man of some seventy years of age, a large property
owner and tax payer, a resident of the district for twenty- five years,
and a universally respected citizen), and told them that they could not
vote. The person just referred to (who from age and standing was evi-
dently the most influential colored man present) asked if the colored
people were not to be allowed to vote, when the crowd from Baltimore
answered, " Not a damn nigger shall vote unless he votes for Cleve-
land." The old colored leader then told the other colored men not to
make a fuss, but as they could not vote to go away peaceably. A num-
ber of them did, but the larger number remained about the polling place
for some time longer and occasionally one of them would attempt to
reach the polling place.

In every such instance they were met by some one of the strangers
or by one of the well- known Democratic leaders of the precinct, and
told that they could not vote ; and when they still pressed on, they
were struck at and compelled to fall back. A number of colored
voters still remained in the neighborhood of the polls, and, in order to
get them away, the leader of the Baltimore gang a man whom the
witnesses all call " Tip Wells, " but whose real name is proved to be
John H. Wills told a man named Ed. Pumphrey, a resident of the
neighborhood, to go among the negroes, tell them that there was a
gang of roughs from Baltimore there, that they had guns, and that
more were coming down from Baltimore in the next train, and that they
would have to fight these armed men if they wanted to vote ; Pumph-
rey went down to where the negroes were, moved around among them,
telling them what Wells directed him to tell, and adding that he was a
deputy sheriff, that he could not protect them, and if they took his ad-

158 MUDD VS. COMPTON.

vice they would go home. He then came back and reported to those
who sent him what he had done. Fifty or more of the colored voters
testified that they heard Purnphrey telling them to go home ; that there
was a wagon-load of roughs there with guns, and that more were com-
ing, etc.

To rebut all this testimony the contestee produced a number of wit-
nesses who say. that they saw very little trouble; that if the colored
people had insisted on voting they think they could have done so, but
the contestee did not put upon the stand a single man whom the wit-
nesses for the contestant identified as having interfered with the rights
of the colored Republican voters. "Tip Wells," the leader of the Bal-
timore gang, was appointed a few weeks after the election, by the Dem-
ocratic collector of internal revenue, a store-keeper in the internal-reve-
nue service; and though he could have been summoned at any time to
deny the charges made against him, or to explain what he and his fol-
lowers were doing on election day, he was not put on the stand. Frank
Chairs, another Government employe, and a resident of the precinct,
was proved to have taken part in the "series of acts which intimidated
the colored voters, but he was not examined by the contestee. William
Chairs, who caught hold of one negro who went up to vote and jerked
him back, and who was the Democratic leader in the precinct, was in
the room when the testimony was being taken, coaching the counsel
for the contestee, but he was not examined.

The pseudo Deputy Sheriff Pumphrey, who played such a large part
in the plot, was not examined. These men, and these alone, could
have rebutted the grave statements made by the contestant's witnesses,
but they were not put forward to do it. Tne persons who interfered
with the election did so in the interest of the Democratic candidates,
and their declaration that " not a damn negro shall vote unless he votes
for Cleveland" was not an empty threat, for the Democratic negro,
Jackson, as he himself testified 'record, page 148), got his ticket from
one of the gang, and according to another witness (record, page 242),
they held him up to the window to vote. The contestee claims that if
this were all so, the negroes had physical force enough to have voted
if they had persisted in doing so. The committee holds that a citizen
has a right to a free and unmolested approach to the ballot-box, and is
not bound to fight his way to a polling window, especially when to do
so he must come into conflict with persons who claim to be officers of
the law, the truthfulness of which claim he has no means of negativing,
and that a candidate whose supporters have done all in their power to
make voters believe that they would suffer injury if they attempted to
vote, can not be heard to say that the intimidated voters should not
have believed the threats made to them. The coutestee's majority in
the precinct as returned was 136. The contestant proves by the voters
themselves that he lost at least 175 votes as a result of this intimida-
tion; the intimidation existed; it changed the result in the precinct,
and the vote of the precinct must be excluded from consideration.

MISCELLANEOUS.

The evidence offered by the contestee to show that, in various pre-
cincts and districts, his colored supporters were intimidated by those of
the contestant, is of altogether too vague and unsubstantial a character
to d. serve consideration. Only one colored man testified that he wanted
to vote for the coutestee and was prevented from doing so by intimida-

MUDD VS. COMPTON. 159

tion ; and he, on cross-examination, admitted that he intended to vote
for the contestee becau.se he had been promised $2 or $3 for so voting.

The committee can see no ground upon which the contestee's claim,
that the eighth district of Anne Arundel County should be thrown
out, can be sustained. It is not charged that any illegal votes were re-
ceived, or counted, or that legal voters (except those whose votes were
refused because of inaccuracies on .the poll-books, and whose votes
have already been allowed contestee and contestant respectively) were
prevented from voting.

The committee, therefore, concludes that

Contestant having on the face of the precinct returns 16,283

Gains

Votes of voters whose votes were refused because it was alleged that other

persons had voted on their names 6

Votes of voters whose votes were refused because of inaccuracies on poll

or registration books 44

Votes of voters whose votes were rejected because of doubt as to their
identity 4

16, 337
Loses

Votes on recount 20

Votes returned for him in first precinct, third district of Anne
Arundel County 32

\*&

True vote for contestant - 16, 285

Contestee, having on the face of the precinct returns 10,281

Gains

Votes of voters whose votes were rejected because of inaccuracies on poll

or registration books 17

One vote in 7th district of St. Mary's County 1

Vote of voter whose vote was rejected because of doubt as to his identity. 1

16, 300
Loses

Votes in second district of Cal vert County 1

Vote returned for him in first precinct, third district of Anne

Aruudel County ?. 168

169

True vote for contestee 16, 131

Plurality for contestant 154

The contestant has, therefore, upon the most liberal allowance to the
contestee and after the decision in contestee's favor of every doubtful
point, a clear plurality of 154 votes and is entitled to his seat.

The committee, therefore, reports the following resolutions and rec-
ommends their passage:

Resolved, That Barnes Compton was not elected as a Representative
to the Fifty-first Congress from the Fifth district of Maryland, and is
not entitled to the seat.

Resolved, That Sydney E. Mudd was. duly elected as a Representa-
tive for the Fifth Congressional district of Maryland to the Fifty-first
Congress and is entitled to his seat as such.

VIEWS OF THE MINORITY.

1) Ballots. Best evidence.

The ballots, when clearly shown to be the identical ballots cast, are
the best evidence of the vote.

(2) Returns. Which primary evidence.

The county returns sent to the governor are evidence of the vote of
the county unless shown to be wrong by the primary evidence, either
the ballots themselves or the count made by the judges of election in
each precinct at the close of the election. In this case the evidence
offered is insufficient to overthrow the county returns of Gal vert county.

(3) Votes. Improperly rejected.

" Whenever a voter did tender his vote and his name was upon the
list of voters furnished to the judges of election, although the middle
name or initial might be wrongly entered, still his vote should be
counted as it should have been received by the judges, the object of"
registration being for the purpose of identification of a voter, or if the
name given by the voter was idem sonans with the name registered.
* * * The vote of no person whose name did not appear, either
properly or at least by 'idem sonans, ' could have been received by the
judges, nor can they be counted by us."

(4) Evidence. In rebuttal.

Testimony in chief, offered in the time for rebuttal, should not be
considered.

(5) Intimidation. Amount of violence necessary.

A poll can not be rejected for intimidation unless there was such a
display of force as ought to have intimidated men of ordinary firmness.
There was no such intimidation in this case.

H. Mis 137 11 161

VIEWS OF THE MINORITY.

Mr. MoofcE, from the Committee on Elections, presented the following

minority report:

The minority of your committee feel constrained to differ with the
majority in their conclusions in this case, and submit the following mi-
nority report :

The undisputed facts are that by the returns made to the governor
the contestee was elected by a plurality of 181 votes, and after correct-
ing these returns by adding the votes of the sixth and ninth districts
of Charles County, the plurality of the contestee was 29, as shown by
the official figures.

It is also true that there was an error in the return, as made to the
governor, from the first precinct of the Sixteenth ward of Baltimore City,
by which the contestant was allowed 223, whereas he received but 222
votes, and his total of 15,819 is made by allowing him this vote. This
is conclusively shown by the certified copy of the return of the judges.
(Record, p. 609, Exhibit Compton, 14), and by the recount (pp. 310, 616).

The vote, therefore, prior to the recount, stood as follows:

Barnes Compton official 16 000

Add vote of 5th district of Charles County 191

Add vote of 9th district of Charles County 89

Total 16,280

Sydney E. Mudd official 15,819

Add rote of 5th district of Charles Connty 274

Add vote of 9th district of Charles County 158

16,251

Deduct one vote first precinct, Sixteenth ward 1

16,250

Plurality for contestee 30

2. That by a recount of the ballots the contestant loses in sixth pre-
cinct of Ffteenth ward of Baltimore City 6 votes (Record, pp 616, 279,
showing recount, and pp. 726, return of judges) In the seventh precinct
of said ward 3 votes (Record, pp. 283, 616, 727). In the second precinct
of the* Seventeenth ward 1 vote (pp. 305, 616, 730). In the third precinct
5 votes (pp. 307, 616, 731). In the seventh precinct 1 vote (pp. 319, 616,
735). In the first precinct of the first district of Baltimore County 3
votes (pp. 647, 648, 741). In the ninth district of Charles County 1 vote
(pp. 467, 755).

Each gained a vote in the fifth precinct of the Seventeenth ward and
Compton lost 1 vote. Net loss to Mudd, 19 votes.

To recapitulate :

Vote for sitting member as above 16,280

Vote for contestant as above 16,250

Deduct net loss on recount 19

16,231

Plurality for conteetee after recount 49

163

164 MUDD VS. COMPTON.

The effect of the contestant has been to show, first, that there was
an error of 28 votes in Calvert County; secondly, that votes were
tendered for him which were refused, and should have been counted ;
and thirdly, that there was in the second precinct of the third election
district of Anne Arundel County such intimidation as should justify
the throwing out of the vote of that precinct.

THE RECOUNT.

It must be borne in mind that the precincts which were recounted
(with but one single exception, that of the ninth district of Charles
County) adjoined the precincts forming the Fourth Congressional dis-
trict, in the city of Baltimore, in which Mr. Rayner was the Demo-
cratic candidate and Mr. Stockbridge the Republican Candidate; and
that the discrepancy between the vote as returned and as recounted is
explained by the fact that in the hurry of the count Republican tickets,
appearing not to be scratched, were counted for Mr. Mudd, while
in fact on many of the tickets was printed the name of Mr. Stockbr'dge.

The count was made under an order of the court, as authorized by the
State statutes, it was made in the presence of counsel for contestant,
and every protection was thrown around it. The provisions of the
State law providing for the security of the ballots are such as to insure
their protection, and the evidence clearly shows that in each and every
case the law was strictly followed. We can not, under the testimony,
fora moment doubt that the ballots counted were the identical ballots
that were cast, and when this is clearly shown the ballots are the best
evidence of the vote. (McCrary, Ed. sees. 436-443, and 533 ; Paine on
Elections, 750; Gooding vs. Wilson, 42d Congress; Smith, p. 80: But-
ler vs. Lehman, 1 Bartlett, 353.)

The law of the State requires the ballot-boxes to be made securely of
plate glass, provided with locks ; that at the close of the count the
ballot-box shall be locked, key removed therefrom and given to the
minority judge; the chief judge takes the ballot-box for safe-keeping,
thereupon the judges shall all write their names on a strip ot paper
of sufficient length for the following purpose; said strip shall be
pasted over the key hole of t':e ballot-box in such a manner that the sig-
natures shall extend across the opening iu the lid (where the ballots
are dropped in in voting), and so that when the key is inserted it will
tear the paper so pasted over the key-holes ; such paper shall be secure! v
fastened to the box with sealing wax or other adhesive material. Within
three days the ballot-boxes and keys in Baltimore City shall be de-
livered to the police commissioners, and in the counties to the clerk of
the circuit court, and the boxes shall not be opened for six months, ex-
cept by order of the court or a judge in case of a judicial investiga-
tion or contested election. (Sections 79 and 80 of article 33 Maryland
Code of Public General Laws, 1888, in Record, pp. 641 and 642.)

We submit that a compliance with these provisions preserves the
ballots, and proof of compliance therewith negatives any claim of sup-
posed tampering or handling, and is the strongest possible presumptive
evidence that they are the identical ballots.

The contestee proved that each and every box was locked and sealed
as required by law, delivered to the chief judge, by him carefully kept
in his physical custody, and in Baltimore city delivered the next day to
the police commissioners, the key delivered to the minority judge and
by him delivered to said police commissioners, and in the counties de-
livered to the clerk of the court two days thereafter (the testimony as

MUDD VS. COMPTON. 165

to these facts is found in the record, pp. 277, 278, 280, 281, 301, 304,
309, 310, 311, 312, 314, 315, 316, 447, 448). This testimony is conclusive
and un contradicted.

He examined the police commissioners of Baltimore City, the mes-
senger or officer of the board, the clerk to the board who was in office
when the boxes and keys were delivered, and his successor, who was
in office at the time the recount was made, proved that the boxes were
placed immediately and kept in a prison room on the second floor of
the central police station intended for a cell; that the door of this
cell or room was locked by a Yale lock, requiring two keys to open it ;
that one key was kept by the secretary of the board in the safe vault
in the secretary's office; that this vault had a combination lock, and
the combination was known to no one except the secretary and marshal
ol police ; he proved by the two secretaries and the marshal of police
that no one had access to the vault but themselves, and that it was
never left open, and contained all the valuables belonging to the police
board of the city; that the keys of the ballot-boxes were placed in this
vault, and by every one who had the custody of the boxes and keys
that they had not been and could not have been handled or tampered
with. Also, as each box was produced, that they bore evidence of not
having been tampered with. (Record, pp. 276, 280, 282, 300, 304, 308,
309, 413, 414, 415, 416, 417, 418.)

In first precinct of first district of Baltimore County, and ninth dis-
trict of Charles County, substantially the same facts by the clerks,
deputies, and messengers and the clerk in Baltimore County testified
that the ballot-box was carefully locked up in a press by reason of this
contest (Record, pp. 444, 445, 446, 447, 448, 452, 460, 461).

If it is possible to prove anything has been carefully and securely
kept, it has been proven as regards these ballots, and this having been
proven, the primary and best evidence of the true vote of the precincts
recounted has been given.

It manifestly appears that the judges counted for each and every Re-
publican candidate all Republican tickets not appearing to be scratched,
and thereby gave Mudd votes in cases were Stockbridge's name was
printed, and which votes were by accident or design thrown away on
Stockbridge.

THE VOTE OF CALVERT COUNTY.

The official returns as made to the governor gave Mr. Mudd 1 1,138
votes, and Mr. Compton 890 votes (see Record, p. 613, return from the
judges of Calvert County). This certificate is dated two days after
election and is in the exact form prescribed by the law of the State.
(Sec. 69 ; Record, p. 640.)

It is therefore evidence of the vote of the county unless it is shown
to be wrong by the primary evidence, either the ballots themselves or
the count as made by the judges of election in each precinct at the close
of the election.

The position was taken by the contestee that the evidence offered by
the contestant to set aside this return was insufficient and inadmissible
for such a purpose. The testimony of the contestant rests largely upon
the recollection of the very same persons three months after the elec-
tion who two days after the election certified to the governor that Mr.
Mudd received but 1,138. (Record, pp. 274 and 275.)

The majority of the committee insist that the precinct returns estab-
lish the fact. (Record, pp. 746-749.)

It will be seen by the testimony (Record, pp. 274, 275) and the certifi-

166 MUDD VS. COMPTO-N.

cates (Record, pp. 746-749) that these copies are made from one of the
books. It will be seen by reference to the law of the State (Record, p.
G39, sec. 66) that it requires two plain, fair, and distinct statements and
certificates of the number of votes which shall have been given " to be
made out on the books of the polls," and the law requires two poll-
books at each poll. These two statements and certificates on the two
poll-books are duplicates; each clerk makes out one, and they should
agree. A copy of one is not of itself evidence. To set aside and dis-
prove the solemn return of the return judges nothing less than the
production of the two " books " or certified copies of the duplicate re-
turns would suffice. Besides, one of these returns is an imperfect paper
in itself, and as a copy is no evidence, as it is neither certified, as required
by law, nor in form and substance what the law requires (Record, pp.
747, 639, sec. 67).

As evidence it was specially excepted to by the contestee's counsel
(Record, p. 779.)

It is no answer that the contestee might have shown the return wrong
if such was the fact ; he has a right to stand upon the return as made
to the governor until successfully assailed.

And we may here remark that the return judges, who made the re-
turn to the governor, were all Republicans, and it is not to be supposed
that they would have made such an error against their own candidate.
And it is taxing our credulity too far to make us believe such a mis-
take has been made. And we further observe that in this instance the
copy referred to in giving the votes is expressed only in figures, very
easily changed or manufactured whilst in the custody of a Republican
clerk, while the statute says it " shall be written in words at length
and not in figures only."

We think it would be contrary to law and dangerous in practice to
allow the judges of election three mouths after the election, relying on
recollection alone, to vary their return based upon such imperfect and
partial testimony.

REJECTED VOTES CLAIMED BY EACH SIDE.

Both the contestant and contestee claim that there were votes tend-
ered for them respectively which were improperly rejected by the
judges of election.

We have reached the conclusion that whenever a voter did tender
his vote and his name was upon the list of voters furnished to the
judges of election, although the middle name or initial might be
wrongly entered, still his vote should be counted as it should have
been received by the judges, the object of registration being for the
purpose of identification of a voter, or if the name given by the voter
was idem sonans with the name registered. By applying this rule a
number of votes claimed by each side, as will be hereafter shown,
must be rejected.

We base our conclusions upon the provisions of the constitution of
Maryland and the acts of assembly governing elections.

The constitution of the State (article 1, section 1) prescribes the quali-
fications of all voters. Section 5 of the same article provides that the
general assembly shall provide tor a general registration of all persons
possessing the qualifications prescribed by the constitution that the
registration shall be conclusive evidence to the judges of the right of
the person to vote, and that no person shall vote whose name does not
so appear.

MUDD VS. COMPTON. 167

The legislature, in accordance with these provisions, have provided for
registration, and since the adoption ot the constitution of 1864, in which
the same provisions appear, all elections have been held under registra-
tion laws.

The judges of election are required to take an oath to " permit all
persons to vote whose names shall appear on the registry or list of
voters furnished to him according to law," and that he u will not per-
mit any one to vote whose name shall not be found upon said registry
or list of voters" (record, pp. 6, 3G, sec. 48).

In registering voters, the register is required to enter the name, giv-
ing at least the first Christian name in full, color, residence, etc., showing
street and number, etc., of the applicant (record, p. 624, sec. 14).

The vote of no person whose name did not appear, either properly or
at least by " idem sonans," could have been received by the judges, nor
can they be counted by us.

The contestant, on pages 13 and 14 of his brief, claims forty of these
votes; we allow him, for the reasons stated, the following:

M. Hopkins. James E. Kane. George H. Mills.

A. W. Herman Miller. William H. Hill. William T. Richardson.

Edward Washington. Jacob Frank. John T. Bowen.

Daniel E. Gamble. George W. Smith. William F. Coata.

Winfield S. Johnson. William H. Brogden. James H. Barnes.

John D. Wilder. Joseph H. Sampson. In all, 19.

George H. Leutsche. William Alsop.

We reject the following, as their names were not, by the testimony of
the contestant, on the poll- book or list of voters and presented no cer-
tificate as required by law (record, p. 633, sec. 34) :

John R. Vitz (25-659). James W. Green (50). James W. Thomas (247),

Isaiah Chester (29-67). John Henry Thomas (48- Philip Lyles (247).

John H. Costen (32-667). 298). William Thomas (248).

David W. Leman (45). Philip Gordon (53-688). David R. Brooks (266).

Aquilla Fishpaw (49). Ishmael W. Keller (235). Charles W.Whittemore (165).

Lev Cure (49). John F. Thomas (246). In all, 18.

James W. Clements (50). Augustin Brown (246).

As to Benjamin . Gamble, he does not prove an offer to vote (record,
p. 11). The judge of election says he did not offer to vote (291), and
his statement that he did not vote because Doctor Hall, the registration
officer, said his name was not on the list is contradicted by Doctor Hall,
who testifies he was not at the polls that day (328, 420).

As to John Taylor, he declined to vote as John E. Taylor, the only
name corresponding to his, and clearly his vote can not be counted
(record, p. 26, 27).

As to Kobert Reed, he was not properly identified either as to resi-
dence by street and number or age (Record, p. 36, 710). He was reg-
istered, if at all, in October, 1888, as fifty-four years of age. This mau
gave his age in January, 1889, as fifty-eight years old Robert Reed,
who was registered, as fifty-four years old October, 1888.

The contestant also claims 6 votes, on page 12 of his brief, which
were rejected, as he admits, because these parties had votfd or others
had voted on the names and they were checked off on the list of votes,
namely, William Butler, John H. Smith, William Brown, Charles H.
Green, Henry Brown, and Thomas Williams.

If when these parties offered to vote the names they respectively gave
where checked, and either they themselves or others had voted on their
names, the judges of election could not receive their votes, for the reason
that otherwise they would have allowed 2 ballots to be cast by one
registered voter. We therefore reject these 6 votes.

As to the 4 votes of Thomas Bell, Samuel H. Booth, Gustavus E.

168 MUDD VS. COMPTON.

Cooper, and William Chapman Weems, forjeasons above given, we al-
low the contestant the votes of Samuel H. Booth, Cooper, and Weems,
but rejectthe vote of Thomas Bell, because he was not identified. (Rec-
ord, pp. 286, 287, 288, 289-292.)

As to the 3 votes claimed on page 22 of contestant's brief upon no
principle of fairness can they be allowed.

Not only did be not claim them in his notice, but he attempted in
violation of every principle of law to offer this testimony in tlie time
allowed him for rebuttal only. (Eules, p. 4.)

This testimony was in each case specifically excepted to. (Pp. 493,
494, 556, 557.)

The attempt to make this claim in rebuttal comes directly within the
case of Lynch vs. Vandiver, Mobley, p. 659, in which the committee say
that " testimony offered in rebuttal which seeks to establish facts not
entered into in the direct examination, is in violation of every known
principle of the laws of evidence, and will not be considered."

The contestee had no opportunity to show that these parties had not
tendered their votes, or any other evidence tending to deny the claim
made by contestant.

The contestant in his brief relies upon the act of Congress of May 31,
1870. This act was declared unconstitutional by the Supreme Court.
(United States vs. Reese, 92 U. S. Rep., p. 214.)

We therefore allow the contestant 19 of the votes claimed by him on
pages 13 and 14 of his brief, and three claimed on page 16 in all, 22
votes claimed by contestee to have been wrongfully rejected.

Applying the same rule to the contestee, we allow him of the votes
claimed by him on page 20 of his brief, the following: Andrew Laiu-
hart, George H. Cummings, John B. Garuett, James W. Wheat-ley, John
H. Iglehadt, William K. Dawson, B. L. Gover, Clifford Sweeny, Fer-
dinand E. Birch, and Benjamin F. Chappelear ; in all, 10 votes.

We rejectthe following: Charles F. Buckler, Charles W. McCready,
John W. Todd, John H. Turner, Richard H. Canter, John Kalb, Ed-
ward Woods, Francis Tolson, James Edelin, Andrew V. Con way, Charles
Soper, Albert Berry, and Dalton H. Fisher, because their names were
not on the poll- book or list of voters.

We also reject William R. Thomas, because his name had been voted ;
in all, 14.

VOTE NOT COUNTED FOR COMPTON IN SEVENTH DISTRICT OF ST.

MARY'S COUNTY.

The contestee is clearly entitled to this vote, his name was written
under Mudd's, and the writing must prevail. (McCrary, 3d edition, sec.
508.)

Mudd, therefore, loses one vote in St. Mary's, and Comptou gaiiis
one.

Contestant claims that one vote for Comptou in 2d district of Calvert
County was scratched, the judges held differently, and properly counted
the vote for Compton. (Record 271-272.)

Weight is to be given to the decision of judges of election. (Mc-
Crary, 3d ed., 465.)

Contestant claims a vote for him was wrongly rejected in the sixth
district of Charles County.

A paster was pasted over the words " for Congress." The testimony of
the judges, Sasscer and Cox, clearly shows this (record, pp. 450-457).
Article 33, section 65, Statutes of Maryland (record, p. 639), required the
ticket should be thrown out.

MUDD VS. COMPTON. 169
To recapitulate official vote, as made to the governor :

Cwnpton 16,000

Add vote of Charles County 191

Not before the governor , 89

280

Add vote for "Compton" 1

Add 1 vote, seventh district, St. Mary's County 1

Add votes allowed, but rejected by judges of election 10

16, 292

Mudd, official vote 15,819

Add vote of Charles County, fifth and ninth districts 4:52

Add votes allowed, but rejected by judges of election 22

Add vote for " Mudd," S. N. Mudd, and S. E. Mudd 3

Deduct loss on recount

Deduct 1 vote, seventh district of St. Mary's County.

16, 255
Plurality for contestee 37

We allow in this enumeration the vote for " Mudd," S.'N. Mudd and
S. E. Mudd, to contestant's and also allow upon the same principle the
vote for " Compton " in Prince George's, as it was returned to the gov-
ernor, and appears on the certificate (Exhibit Coinpton No. 1C), as filed
in evidence before the committee.

FIRST PRECINCT OF THIRD ELECTION DISTRICT OF ANNE ARUNDEL

COUNTY.

The effort of the contestant has been to reject the vote of this pre-
cinct upon the ground that there was such intimidation and violence as
prevented a free and fair election.

The law is well settled that the poll can not be rejected unless the
violence was such a display of force as ought to have intimidated men
of ordinary firmness. (McCrary on Elections, sec. 416, 2d edition.)

The contestee claims, and the evidence to our mind sustains the
position, that no such intimidation, force, or violence was resorted to.

The evidence shows on the part of the contestant

(1) That the only guns on the ground that day were some guns
which had been brought there by persons, some colored and some white,
who were on their way gunning, it being shown to be a long-established
custom of many voters in that part of the county (white and colored)
to make election day a day of huntiu g. That the only pistol-shots fi red
were by some young men, nowhere near the polls, who were shooting
at a mark.

(2) That instead of it being true that there were any such acts of vio-
lence as were calculated to intimidate persons of ordinary firmness, the
true state of the case is just this : 1. Not long after the polls were
opened (they were opened at 8 a. m.) and after some few white men had
voted, a body of colored men, numbering about 100 men, who had as-
sembled at a place called the " Mill Pond," about 100 yards from the
polls, marched in a body to the polling place, and after some 15 of
them had voted, 2 of their number. Hall and Andrew Sampson, who
were in the line, were by some young man standing there pushed
or shoved out of the line, and told they had no right to vote there,
and thereupon Hall, whom the evidence shows had taken an active
part in distributing tickets among the colored voters, and was looked

170 MUDD VS. COMPTON.

np to as a leader among them, after addressing certain remarks to
those around, ordered, according to a large number of the witnesses,
and advised, according to others, the whole line of negroes away from
the polls, which order or advice was at once obeyed, and in consequence
of this order or advice, which was subsequently given to others already
at the polling places or on their way thereto, nearly every one if not
every one of the 175 colored people referred to in contestant's allega-
tion abstained from voting.

(3) That according to some of the witnesses it was the same young
man who pushed or threw out of line both Hall and Sampson ; but at
all events, according to the evidence of a number of the contestant's
own witnesses, the whole number of the class of persons described by
some of the witnesses as " strangers," and by others as u roughs," and
who are alleged to have caused the intimidation of the 175 negro voters,
was but three.

(4) That according to the contestant's own proof, there were from 50
to 100 colored voters in line, when the two men, Hall and Sampson,
were shoved or pushed out of line ; and this number was further in-
creased shortly after, as most did not leave the grounds till after 12
o'clock, and there were 161 on the grounds during that time.

(5) That according to the overwhelming mass of evidence, as given
by the contestant's own witnesses, no blows were struck at any time,
no fire-arms used or shown, no threats of personal violence made, not
even the hunting guns had then been brought to the grounds when the
trouble with Hall and Sampson took place.

(6) According to the contestant's own evidence none of the 175 votes
were ever tendered to the judges ; on the contrary the voters admit that
they refused to tender their votes.

The three judges of election and two clerks were examined.

The contestant examined two of the judges of election, Hiues and
Jubb; Hiues is a Republican, and Jubb, though professing to be a
Democrat, was bitterly opposed to Mr. Compton. All the judges and
clerks were appointed by the county commissioners of Anne Aruudel
County, all of whom were Eepublicans. (Page 342.)

At the close of the polls on the day of election all of the judges of
election, without protest or demur of any kind, signed the certificate of
election, setting forth the holding of the election and the number of
votes each candidate had received. (Record, page 718.)

And on the very next day after the election Hiues. the Republican j udge,
who was the return judge, went to Annapolis with the ballot-box and
election returns, and there told Mr. Sprigg Harwood, the clerk of the
circuit court for Anne Arundel County, to whom he delivered his re-
turns and box, " that there had been no trouble about the polls 5 every-
thing has passed off peaceably and quietly." (Record, page 397. See also
confirmatory evidence of Woodward, page 435.)

Hines testified that he had never been judge of election before (Rec-
ord, p. ). In this he is contradicted by a large number of witnesses,
and it is shown that he had been judge of election three times before.
He first denied he had made any statement to Mr. Harwood. He after-
wards said he told Mr. Harwood the election was not fair, and when re-
called testifies that he said to Mr. Harwood it was fair inside but unfair
outside. He contradicted himself so much his .testimony is unreliable

Thecontestee examined Charles H. Williams, the Democratic judge,
and both clerks. Testimony of Charles H. Williams was that he was
at the polls and in the room from before the polls opened till the ballots
were counted ; that he neither saw nor heard any disturbance. (Record,
pages 342-344.)

MUDD VS. COMPTON. 171

The testimony of Dunlap (p. 453) and Heath (p. 376), the two clerks
of the election, was to the same effect.

Of the five officers of election, all appointed, as shown by Williams's
testimony (p. 342), by the Republican county commissioners, three tes-
tified that the election was quiet and peaceable ; and two, one a bitter
personal as well as political enemy of the contestee, and the other con-
tradicting himself so frequently that his testimony is unreliable, testi-
fying that there was a disturbance.

And here we may note a significant fact, that the contestant in an ef-
fort to sustain Jubb, his witness, called John W. Williams, who testifies
that while he would believe Jubb and Hines, that in a case where Will-
iams and others testified one way and Hines and Jubb to the contrary
he would not believe Jubb and Hines. (Record, p. .)

The testimony of this army of negroes, 175, who were there or near
there, shows when carefully digested that they did not vote, because
Hall, the captain, ordered them not to vote. (Record, p. 92, 97, 98, 103,
106, 107, 109, 116, 119). The following is a sample (206).

The testimony of contestee shows that Hall did give this order or
advice, and for this reason they did not vote. (Evidence of Chairs, 350;
Wales, 361 ; D. H. Williams, 366 j Henry Johnson, 372 ; Watson, 378 ;
S. W. Chairs, 379; Ellers, 38; Porter, 384; Brothe, 381.)

The testimony of Zachariah Gray, a constable (record p. 357), who
was there all day, shows that the only pistol fired was at a mark 100
yards from the polls, and that he stopped it because it frightened the
horses.

The only pistol-firing shown by contestant is the evidence of William
H. Jubb (p. 242). He testifies that others were present, not one of
whom, though examined by contestant, testified to the fact. His cross-
examination shows him to be a man of no character.

If the principle attempted to be applied by the majority of the com-
mittee is adopted, that a district or precinct is to be thrown out because
a number of voters do not attempt to exercise the right of suffrage, or
because a leader insists, as Hall did, that those of his own party shall
not vote, all that will be necessary in the future to deprive voters of
their choice is that a few shall desist from voting, and the votes of the
majority will become nugatory.

After a careful review of the entire testimony touching the matter of
intimidation, we think that acandid and fair judgmentof this House will
be that it is insufficient to authorize us to reject the votes of those citizens
who did cast their votes. And we think that the real purpose of this
man Hall in collecting his negro partisans and marching to the polls at an
early hour when there were but few white men at the polls, was, in fact,
not to exercise his right of suffrage orderly and peacefully, but to seize
any trifling circumstance which would authorize him to retire and give
his orders to his followers not to vote, and in this manner to so antago-
nize his white neighbors as to have them disfranchised. Therefore, we
recommend the passage of the following resolutions :

Resolved, That S. E. Mudd was not elected as a Representative to the
Fifty-first Congress from the Fifth Congressional district of Maryland.

Resolved, That Barnes Compton was duly elected, and is entitled to
retain his seat.

L. W. MOORE, of Texas.
CHARLES F. CRISP.
CHARLES T. O'FERRALL.
LEVI MAISH.
B. P. C. WILSON, of Missouri.

FEANK H. THEEET vs. EICHAED H. CLAEKE.

FIRST ALABAMA.

Contestant charged that the majority returned for contestee was
obtained by systematic fraud on the part of the officers of election in
counting for contestee votes in fact cast for contestant.

The committee find the frauds proved in the testimony insufficient to
overcome the majority returned. The minority agree in the conclusion,
but announce their dissent from some of the reasoning by which it is
reached.

The resolutions presented were adopted by the House March 7, 1890,
without debate or division. See Eecord page 2007.

(1) Frauds. At prior elections.

(2) Conspiracy. Partisan appointment of elections boards, evidence of.
Where the course is systematically pursued, of appointing on the

election boards to represent the minority or opposition party, persons
not indorsed by that party, and as to whose loyalty to the party whose
interests they are expected to guard there is a question, or of appoint-
ing persons who are unable to read and write, when there would be no
difficulty in finding men well qualified in those respects, this ought of
itself to be considered evidence of conspiracy to defraud on the part of
the election officers.

173

FEBRUARY 21, 1890. Mr. HAUGEN, from the Committee on Elections,
submitted the following report:

The Committee on Elections, having had under consideration the con-
tested election case of Frank EL Tureet, contestant, against Richard
H. Clarke, contestee, from the First Congressional district of Alabama,
submits the following report :

The contestant and contestee were the Republican and Democratic
candidates, respectively, for Representative in the Fifty-first Congress,
at the election held on November 6, 1888. The ccntestee received the
certificate of election, has duly qualified and entered upon his duties
and is now occupying his seat as Representative of the district.

The certificate of the secretary of state showing the vote cast for
contestant and contestee, respectively, reads as follows:

THE STATE OF ALABAMA,
OFFICE OF SECRETARY OF STATE.

From the returns made to this office by the boards of supervisors of the various
counties composing the First Congressional district of Alabama, it appears that the
following votes were cast for a Representative to the Fifty-first Congress from said
district.

Counties.

Candidates.

B. H. Clarke.

Frank H.
Threet.

Scatter-
ing.

1,382
1,564
3,480
3,220
1,440
507

633
1,234
1,847
2,408
766
217

11, 593

7,105

I, C. C. Langdon, secretary of state, do hereby certify that the foregoing is a cor-
rect statement of the returns made to my office, as required by law, of the election
held on the first Tuesday after the first Monday in November, 1888, for a Represent-
ative in the Fifty-first Congress of the United States from the First Congressional
district of Alabama.

Witness my hand, and the great seal of the State, at the Capitol in the city of
Montgomery, this - day of - , 1888.

C. C. LANGDON,

[SEAL.*! Secretary of State.

175

176 THREET VS. CLARKE.

A plurality for contestee of 4,488 on the face of the returns. This
plurality the contestant contends was obtained by systematic frauds on
the part of the inspectors and clerks of election in counting votes in
fact cast for contestant as having been cast for contestee in a number
of precincts, large enough to have elected him (contestant) had the re-
turns been honestly made. The contestant in his brief describes the
method pursued by his party friends at the polls, and the evidence he
relies upon to establish the charges of conspiracy to defraud him as
follows :

At every beat or voting precinct two or more leadiug Republicans would give out
tbe Republican ballots to their Republican friends, and two or more trusted Repub-
licans would watch and witness that they were voted ; each kept an accurate? account
of the number of tickets he gave out and the number he saw voted. The contestant
put these witnesses on the stand to prove these facts, and the vote proven wsis almost
in the inverse ratio of the vote as counted by the precinct officers.

Such is the status of the present contest and mainly the character of the testimony
of the. contestant.

The charges of contestant are confined to the four counties of Choc-
taw, Clarke, Marengo, and Monroe, and only to those precincts in said
four counties hereinafter discussed.

It appears upon examination of the evidence that the contestant has
strictly confined himself to the method of proof described in his brief.

CHOCTAW COUNTY.

Mount Sterling beat. The contestant charges that at this precinct
he was deprived of fifty-nine (59) votes for the reason that the regular-
ly appointed registrar refused to issue to that number of liepublican
voters proper certificates of their registration. It seems to be conceded
by witnesses for contestee that 59 voters with tickets having the name
of contestant upon them appeared and offered to vote, but were refused
because they could not furnish certificates of registration, the registrar
about 10 o'clock a. m. refusing to issue further certificates, stating
that he was out of blanks, and shortly afterwards being called away ;
that several hours intervened before the inspectors offered to appoint
another registrar, which they finally did, failing however to find any
person willing to serve.

It is not charged that the registrar acted fraudulently in refusing to
continue to issue certificates. His supply of blanks seems to have
been exhausted, and he was called away to attend the sick-bed of his
father-in-law, who, in fact, died a few days later. The probate judge
of the county, who was present according to his own testimony, be-
tween 3 and 4 o'clock p. m., with the consent of the inspectors, offered
to swear, orally, those who had previously voted in the precinct, and the
inspectors offered to receive the votes of those so sworn.

But there is no evidence showing how many of the fifty-nine voters
yet remained at the polls or how many of them, being legal voters, had
previously voted at the precinct.

Section 2007, Revised Statutes of the United States, reads as follows :

Whenever under the constitution or laws of any State, or the laws of any Terri-
tory, any act is required to be done by a citizen as a prerequisite to qualify orentitle
him to vote, the offer of such citizen to perform the act required to be done, shall, if
it fail to be carried into execution, by reason of the wrongful act or omission of the
person or officer charged with the duty of receiving or permitting such performance,
or offer to perform or acting thereon, be deemed and held as a performance in law of
such act; and the person so offering and failing to vote, and being otherwise quali-
fied, shall be entitled to vole in the same manner and to the same extent as if he had
in fact performed such act.

THREET VS. CLARKE. 177

Under this law the 59 votes at the precinct under discussion must be
counted for contestant.

CLARKE COUNTY.

Gainesville precinct. The returning officer was the only officer of
election who appeared at the opening of the polls on the day of election.

He proceeded, at the instance ot contestant's friends, to appoint three
inspectors, who were chosen from the colored party friends of contest-
ant. These appointed two clerks.

This was in pursuance of section 262, Code of Alabama, 1876. Two
of these inspectors and one of the clerks testify on behalf of contestant,
and from their testimony it appears that the election proceeded quietly
until about 3 o'clock p. m., when during a lull in the voting and following
a seemingly well-established custom in that precinct, the elect ion officers
opened the ballot-box and proceeded to count the votes cast. It then
transpired that none of the inspectors could read the ballots. This
broke up the election and the ballot-box was carried off by the return-
ing officer, seemingly without protest or objection.

One of the inspectors swears that 179 votes had been cast at the
time the balloting was interrupted. His testimony also tends to show
that four of these were white men and the rest colored. There is no
evidence showing how these parties voted.

The voters were not called as witnesses, and no effort has been made
to ascertain how the votes actually cast stood, and the committee can
find no precedent for counting the 175 votes claimed by contestant for
him. If these votes were cast for him, he has failed to show it, and the
failure to have the true result declared was caused by no fault or
fraud of contestee or his party friends, unless the failure of the regu-
larly appointed inspectors of election to act be considered a fraud, but
was occasioned wholly by the illiteracy of the party friends of contest-
ant.

There can be no effective citizenship that is not based upon intelli-
gence and education sufficient to take part in the active administration
of the laws.

MARENGO COUNTY.

Dayton beat. Three witnesses testify for contestant and eight for
contestee in regard to this precinct.

The precinct returned 307 votes for contestee and 87 for contestant,
while contestant claims that 402 votes should be returned for him, and,
because of frauds committed by the partisans of contestee, none should
be returned for contestee.

Doc Daniel, a' witness for contestant, testifies that he is a resident
of Dayton beat, has lived there three years and was present at the elec-
tion in question :

Quest. Was you present at said election? And, if so, state how many votes were
polled or voted by the qualified electors of said beat on said day for said office. How
many of said votes were voted or polled for Frank H. Threet for said office, and how
many for Richard H. Clarke ?

Ans. I was present; three hundred and eighty-seven Republican votes and eighty
Democratic votes were polled.

Quest. Whose name for Congress was on the 387 Republican tickets that you say
were voted ? Aus. F. H. Threet.

Quest. Who distributed the ballots or votes with Frank H. Threet's name on them
at said election and buat on that day, and how many were distributed T Ans. I dis-
tributed them ; I can not tell how many were distributed.

Quest. Did anybody else beside you distribute any of said votes at said precinct on
that day, and, if so, who ? How many did you distribute ? Aus. Yes, William Math-
ews and Charley Perkins ; I distributed 80.

H. Mis. 137 12

178 THEEET VS. CLARKE.

Quest. Whoso- name for member of Congress was on these tickets that you and the
other parties distributed as you say ? What was done with these ballets after they
were distributed? Ans. F. H. Threet's name was on these ballots, and they were
voted after they were distributed.

Quest. Who acted as inspectors at said election and who acted as returning officer
and clerks and to what political party did they respectively belong ? Ans. Mr. R. W.
Price, H. W. Morgan, and W. W. Bruce acted as inspectors ; Alec Archer and Capt.
Harder were the clerks ; I don't know who was the returning officer ; they all belonged
to the Democratic party.

Quest. State whether the votes were fairly counted at said election as cast.

Aus. I don't know, sir.

Quest. Did any oue keep a list or tally of the names of the persons who voted for
Frank H. Tlireet for said office at said election and precinct? If yea, who kept such
list ? Ans. Nora Walton and Lee Parker kept a tally of the number, but not of the
names.

Quest. How many Democrats, if you know, lived in said beat on the day of said
election, and how many of them voted in said beat on that day ; and how many Re-
publicans lived in that beat on that day, and how many of them voted at said elec-
tion for Frank H. Threet ? Ans. I don't know how many Democrats lived in said
beat, and I do not know how many voted on that day ; to the best of my knowledge
460 Republicans lived in that beat on that day ; 387 of them voted for Frank H,
Threet.

Quest. How many of said votes for Frank H. Threet did you see cast on that day ?
Ans. Seventy-five (75).

Quest. Was said Threet a popular or unpopular candidate?

Aus. He was a popular candidate.

Quest. Was he not warmly supported by the Republican party in his district ?

Aus. Yes, he was warmly supported by the Republican party that day in his dis-
trict.

Quest. Tell all that you know about the manner in which the election was held in
your precinct; if there was any intimidation and unfair counting of the vote; tell all
you know abont it.

Aus. I don't know if there was any intimidation or not; I don't know if there was
any unfair counting or not ; so far as I know about the conducting part, I give one
mat) a ticket, and Israel Clarke came and took the man away from me, and took the
ticket away from him and scratched something on it, and I didn't know what until he
came back to me and gave the ticket back to me ; Israel Clarke had scratched out
two names on the ticket that I gave the mau ; the names were F. H. Threet and Mr.
Williams; I took the ticket from him and he went on with Israel Clarke.

Cross-examination :

Quest. How do you distinguish a Democratic ticket from a Republican ticket?
Ans. I look at them with the names on them ; one is longer than the other.

Quest. Do you tell them by the names on them, and the length, too ? Ans. Yes.

Quest. Which is the longest, the Democratic or Republican ticket? Ans. The
Democratic.

Quest. How many Democratic tickets did you see that day ? Ans. About 300.

Quest. How many Republican tickets did you read that day ?

I read 75.

Quest. How far were you standing from the polls? Ans. About 9 to 10 steps, all
day long.

Quest. Did you see Wash. Jones on that day ? Aus. Yes, sir.

Quest. What was he doing on that day ? Ans He was distributing tickets Re-
publican tickets.

Quest. How many of the tickets he distributed did you read over or measure ? Aus.
I did not read over or measure any ; but they came from the same package as those I
distiibuted.

Quest. How far was Wash. Jones standing from the polls? Aus. He was standing
9 steps from the polls and about 6 steps from me, and opposite to me.

Quest. Was there not another election officer at the election at Dayton that day
that you have not mentioned? Ans. Nary one that I remember.

Quest. Was not Jack Crawford an officer of that election ? Ans. He was.

Quest. What are Jack Crawford's politics ? Ans. Republican.

Quest. How long have you known Jack Crawford ? ; Ans. Three years.

Quest. Do you know his general character in the community in which he lives f
Ans. Yes, sir.

Quest. Is it good or bad ? Ans. As far as I know it is very good.

Quest. Do yon know the characters of Robt. W. Price, Henry W. Morgan, W. W.
Bruce, C. H. Askew, A. H. Archer, and Capt. Harder in the community in which
they live ? Ans. I do.

THREET VS. CLARKE. 179

Quest. Is the character of each oue of them good or bad ? Ans. Very good.

Quest. Could you select from the neighborhood of Daytou beat six men that stand
higher in that community as goodcitizeus and men of integrity ? Aus. I could not.

Quest. Do you know the Rev. Mr. Moreland ? Ans. I do ; I am not a member of
his church.

Quest. Do you know Israel Clarke ? Ans. I do.

Quest. Do you know his general character ? Ans. Yes; he stands as high in that
community as any man, colored or white.

Quest. What are his politics? Ans. Democratic.

Quest. How long has he been a Democrat ? Ans. I don't know sir.

Quest. How did he vote in the last election ? Ans. Democrat.

Quest. What do you mean by Democrat ? Ans. He voted a Democrat ticket ; one
of the long tickets.

Quest. Why did he vote Democratic in this last election ? Ans. I don't know.

Quest. How has Israel Clarke voted since he was twenty-one, up to the present
time ? Ans. I don't know.

Quest. How many times has Frank Threet run for Congress in this district? Ans.
I don't know.

Quest. Do you know Sam Williams ? Ans. Yes, sir.

Quest. Were you at the meeting at the church the night before the election; was
Sam Williams there ?

Ans. I was; I didn't see Sam there.

Quest. Was Sam Williams one of the 387 that you say voted for Threet? Aus. He
was not.

Quest. At the meeting held at the church the night before the election were not
the voters present sworn to vote the Republican ticket the next day? Ans. They
were not.

Quest. How many were present? Ans. I don't know, sir.

Quest. Who was the man that Israel Clarke took off from you that day? Ans.
Richard Nathan.

Quest. Hr-w many tickets do you say were distributed that day? Ans. I don't
know.

Rebutting questions :

Quest. Please state why you did not give the names of all the persons who dis-
tributed tickets when asked on your direct examination ? Ans. I intended to do so,
but was interrupted by having another question asked me before I got through naming
them all.

Quest. Did you say that Israel Clarke is Democratic in politics ? Ans. Yes, sir.

Quest. How many colored Democrats was there in Dayton beat ? Aus. I don't
know, sir.

Quest. Do you know any other colored Democrat except Israel Clarke? Ans. Yes,
sir; Dick Browuing.

Quest. Do you know any others besides Israel Clarke and Dick Browning?

1 do not.

The testimony of this witness has been quoted at length for thereasou
that it does not vary materially from that offered as to other precincts
in Marengo County, and discloses the general theory of contestant's
case. Charles Perkins and William Mathews are offered in support of
the testimony of Doc. Daniels. The former swears that he was present
at the election; that about 480 votes were polled; that he does not
know how many were cast for the contestant and how many for con-
testee; that he was issuing Republican tickets to Republican voters,
and " issued " 75 ; ' the voters put them in the window "; says about
80 Democrats and about 400 Republicans lived in the precinct; that
the contestant was popular with the colored voters.

Witness saw nothing unfair about the counting. Cross-examined he
testifies to the general good character of the officers conducting the
election, except as to one of them, a colored Democrat, Israel Clarke ;
but on that point he contradicts the testimony of Doc. Daniels, given
above.

William Mathews, the third witness, was chairman of the Repub-
lican executive committee for Dayton beat and distributed tickets at
this election -, distributed 150 tickets, and says, " They were put in the

180 THKEET VS. CLARKE.

window voted." "About 385 Eepublican votes were polled there that
day, and probably 80 some odd Democratic. " The colored people gen-
erally voted the Republican ticket. Like the other witnesses, he says
the contestant was a popular candidate, and was warmly supported,
and corroborates them as to the good character of the officers conduct-
ing the election. On this evidence the contestant asks that the returns
from this precinct be subverted; that 402 votes be given to him and
none to his opponent.

This evidence, standing alone and uncontradicted, would, in the opin-
ion of the committee, overcome the prima facie character of the returns
and is competent evidence of the charge of conspiracy and fraud on the
part of the officers of the election.

But the case does not rest here.

The contestee calls as a witness J. Crawford, the United States su-
pervisor, a Republican, appointed on the recommendation and at the
request of contestant, who testifies to his constant presence at the
polls during the voting and the count, and who swears unqualifiedly
that the election was fairly conducted and the returns honestly made.
He is corroborated by R. W. Price, the Democratic United States su-
pervisor, as to the fairness and honesty of the election.

Israel C. Clark, Richard Browning, and John II. Webb, colored men
(two swearing they are Republicans), testify that they supported the
coutestee, and that contestant did not enjoy the full confidence of his
colored Republican brethren.

Frauds at prior elections and the obstruction to the taking of testi-
mony in prior election contests may, and often do, throw light upon the
political situation in a community, but cannot be taken as an excuse
for not attempting earnestly in subsequent contests to comply with the
rules of evidence. Every election must rest upon its own merits. The
honesty of the election officers testified to by contestant's witnesses is
wholly inconsistent with his theory of a conspiracy carried out by those
very officers to defraud him.

Faumdale beat. Two witnesses were called for contestant. Their
testimony tends to show that they distributed the Republican tickets at
the polls ; that five of the officers of election were Democrats and two
Republicans; that the witnesses were distributing tickets at the front
end of the building, at the rear end of which the voters handed in their
ballots through a window, and that from the position of the witnesses
the window could not be se<m; that no one was permitted to remain at
the back of the house except, the voters and the police. This is cer-
tainly very slight evidence upon which to rest the charge of conspiracy
and fraud. The contestee called as witnesses the Republican United
States supervisor, appointed at the instance of contestant, and the Re-
publican chairman of the executive committee of the precinct, who both
testify to the regularity and fairness of the election. They are sup-
ported by the evidence of seventeen other witnesses called by contes-
tee. These witnesses stand unimpeached. The individual voters were
not called, and the returns must stand as made.

It should be stated that under the law of Alabama each political
party is entitled to challengers at or near the polls, but no other person
is permitted within 30 feet of the polls.

Magnolia or Hamden beat. Ben Craig swears that Jack Northrup
distributed the Republican tickets ; that witness kept a list of them,
and gives the names of 85 voters to whom Republican tickets were de-
livered; that he saw these voters go to the polls with these tickets;

THREET VS. CLARKE. 181

that his view of the polls was unobstructed ; that he and Northrup were
"not over 20 yards "from the polls; that the votes were not fairly
counted, " because they (the inspectors) reported 30 and I reported 85
Republican votes."

He is corroborated by Albert Hays, who testifies that each voter as
he proceeded to the polls carried his ticket in his hand where witness
could see it.

This under the rule laid down is competent evidence as to the num-
ber of Republican votes cast at this precinct, and throws upon contestee
the burden of showing the fairness and legality of the proceedings.
The Republican United States supervisor within the poll either failed
to do his duty, or his silence must be taken as evidence of the absence
of fraud. Seven witnesses for coutestee, including several of the elec-
tion officers, testify to the fairness of the election. Individual voters
were not examined.

The evidence before the committee relative to the precincts of Jeffer-
son, Linden. Macon, McKinley, Nixon's Store, Spring Hill, and Shiloh
is substantially of the same character as that of the last three precincts.

If the results at all these polls were,as alleged by contestant,taintedby
fraud andcorruptiou to such an extent that the polls should be excluded,
he has failed, in the opinion of your commit tee, to exercise that diligence
which the law asks of every suitor before gran ting him the relief prayed
for. Bearing in mind that the character and tendency of the proof is
very similar in all these precincts, the contestant might reasonably have
been expected to have, at least, in one or a few of them, called in the
body of the voters of the precinct and established his claim of fraud, if
fraud existed, beyond question. He does not even pretend to have made
an effort to do so in this contest, but tries to excuse his want of effort in
this respect because, as he alleges, in some previous contest that course
had failed.

To quote from his brief :

To call the voters themselves was the best and surest means of successfully proving
that the count was fraudulent. When this was attempted by the contestant the cou-
testee would cross-examine each witness for three days, and in some instances a whole
week, asking the witness all about the Bible and the history of the world from Adam
down. (See testimony in the contest of McDuffie vs. Davidson, 50fch Cong.) The
object of this proceeding was to consume time, and as the contestant only had forty
days allowed by law in which to take testimony-in-chief, it can be readily seen how
difficult, if not impossible, it was to secure sufficient proof from the voters to establish
the fraud, as only a few could be examined by reason of the obstructive tactics of the
contestee.

It is only fair to the coutestee to say that the evidence fails to dis-
close that any of the obstructive methods mentioned in contestant's
brief were resorted to by him, and he cannot be held responsible for
the sins of his predecessors. A close examination of the record bears
evidence that the taking of testimony was conducted in a very leisurely
manner on the part of contestant, and that, although the number of hia
witnesses is relatively small, his side of the case was not closed until
the middle of March.

In Jefferson beat he calls three witnesses to prove the alleged frauds ;
contestee calls thirteen to prove the honesty and fairness of the election.

So in Linden, contestant calls two witnesses, contestee twelve; in
Macon, contestant two, contestee five; McKinley, contestant four, cou-
testee three ; Nixon's Store, contestant two, contestee three ; Spring
Hill, contestant two, contestee eight; Shiloh, contestant three, contes-
tee eleven.

182 TflREET VS. CLARICE.

MONROE COUNTY.

Section 259, Code of Alabama, provides :

SEC. 259. Inspectors and precinct returning officers, how appointed. The judge of pro-
bate, sheriff, clerk of the circuit court, or any two of them, must, at least thirty days
before the holding of any election in their county, appoint three inspectors for each
place of voting, two of which shall be members of opposing political parties, if practicable,
and one returning officer for each precinct to act at the place of holding elections in
each precinct; and it shall be the duty of the sheriff to notify such inspectors and
returning officers of their appointment within ten days after such appointment.

The testimony of Anthony R. Davison, chairman of the Republican
executive committee of Monroe County, is to the effect that he prepared
lists of inspectors in the various precincts, one for each precinct who
could read and write, and who were reputed to be good Republicans,
and gave the list to the sheriff, and requested the board to appoint
them. They were not appointed, but men were appointed in lieu of
them who could not read and write, or were not Republicans, but they
were all colored men, and some of them had been recognized by Re-
publicans as being colored Democrats for years. He says :

All the clerks and inspectors so far as I know were Democrats. There were some
that were good appointments, but taking them on a whole, they were not good ap-
pointments.

This evidence is undisputed.

The committee is of the opinion that where the course is systemat-
ically pursued, of appointing on the election boards to represent the
minority or opposition party, persons not indorsed by that party, and
as to whose loyalty to the party whose interests they are expected to
guard there is a question, or of appointing persons who are unable to
read and write, when there would be no difficulty in finding men well
qualified in those respects, this ought of itself to be considered evidence
of conspiracy to defraud on the part of the election officers. This was
clearly a violation of the law on the part of the board.

The contestant, however, has confined his proof to only two pre-
cincts in this county, viz, Monroeville and Buena Vista.

Monroeville precinct. At this precinct the duly appointed inspectors
did not qualify or serve at the election. It does not appear from the
record that the three persons appointed and who did serve as inspectors,
were not qualified electors of the precinct, nor that the election was
not fairly and honestly conducted.

Buena Vista precinct. Nelson Burgess testifies that, during the count-
ing of the ballots, he was watching the proceedings with others, through
the window; that one of the supervisors, George Lyons, was seen
to crumple up several tickets as high as sixty and throw them on the
floor; that there were two Republican officials in the room, one a United
States supervisor and supporter of contestant, but they were crowded
away from the table*where the count was conducted and unable to see
what was being done ; that several other parties witnessed the miscon-
duct of the inspector and commented upon it at the time. There is no
evidence as to the actual number of votes cast for contestant and con-
testee respectively at this precinct. One hundred and thirty-five were
returned for contestee and 38 for contestant.

The facts testified to by kelson Burgess stand tmcontradicted, and
this poll should be excluded from the count.

Disregard and violation of the election laws appear to have taken
place in various precincts in this district, but the record fails, in the
opinion of the committee, to disclose that the number of votes counted

TIIREET VS. CLARKE. 183

for contestee illegally, or as the result of such frauds, changed the re-
sult of the election. The committee has not, therefore, in this report
entered into a minute discussion of all the precincts called in question
by contestant in his brief and in the argument of his counsel.

The committee is anxious to do justice to the parties coming before
it, appreciating the importance of a correct decision on its part, not
only to the contesting parties, but to the district where the contest
arose, the people of which are entitled to have the case decided upon
its merits, and not upon a too technical construction of the law.

After a fair and liberal consideration of this case, the committee is of
the opinion that the contestant has failed to prove the charges contained
in his notice and his right to the seat now occupied by his adversary.

The committee recommends the adoption of the following resolution :

Resolved, that Richard H. Clarke was duly elected a Representative
to the Fifty-first Congress of the United States from the First Congres-
sional district of Alabama at an election held November (5, 1888, and
is entitled to a seat therein, and that Frank H. Threet was not elected
a Representative at said election.

VIEWS OF THE MINORITY.

MARCH 7, 1890. Mr. CRISP, from the Committee on Elections, submit-
ted the following as the views of the minority :

The undersigned, members of the Committee on Elections, never hav-
ing seen, or had an opportunity of seeing, the report filed in the above-
stated case until after the same was reported to the House and printed,
were unable to ascertain upon what grounds the committee would in
such report base its judgment.

Having examined such report, we find ourselves unable to agree to
the reasoning therein, and this is intended to express such disagree-
ment.

We concur in said report only so far as the same recommends the
adoption of a resolution declaring that Threet was not elected and that
Clarke was.

CHARLES F. CRISP.

JOS. H. OUTHWAITB.

E. P. C. WILSON.
CHAS. T. O'FERRALL.
LEVI MAISH.
L. W. MOORE.

185

FRANCIS B. POSEY vs. WM. F. PARRETT.

FIRST INDIANA.

Illegal voting was alleged by both sides. Charges of bribery were
also made in the pleadings, but no evidence presented to sustain them.
The committee find some illegal votes, but not sufficient to change the
plurality returned for contestee.

The resolutions presented were adopted April 16, 1890, by a vote of
125 to 4 (on division). The debate will be found on pages 3444 to
3451.

(1) Evidence. In chief taken in time for rebuttal.

The rights of the House under the Constitution are not abridged by
the act regulating the manner of taking testimony in contested-election
cases, but each Congress in enforcing those rights will not depart from
the terms of the act except for cause. Where no reasons are presented
for taking testimony in chief during the time for rebuttal, the committee
will not consider such testimony.

(2) Residence. Of students in college.

Eesidence is a mixed question of fact and intention ; the fact with-
out also the intention is not sufficient of itself to establish a legal resi-
dence. And it is a well settled principle of the cases that one who
leaves his home to go to college for the purpose of an education does
not from continuance there the required time gain a residence. On the
contrary, the very object of his stay raises a presumption against such
result. The question in regard to students is " whether they have
ever given up their last residence and undertaken to acquire another
at the college. To do so they must either directly have renounced their
former home and assumed the obligations of citizens in their place of
adoption, or done acts, open and acknowledged, inconsistent with the
one and assertive of the other." The students having testified that
they had made the college town their residence, and their being no
evidence that this intention was not formed and acted on in good faith,
the committee would not be justified, under the state of the evidence
in this case, in rejecting their votes.

187

APRIL 3, 1890. Mr. BERGEN, from the Committee on Elections, sub-
mitted the following report:

The Committee on Elections, having had under consideration the case
of Francis B. Posey, contestant, against William F. Parrett, contestee,
from the First Congressional district of Indiana, submits the following
report :

At an election held on the 6th of November, 1883, the contestant was
the Eepublican candidate and the contestee was the Democratic candi-
date for ^Representative from the district to this Congress. The con-
testee, on the face of the official returns, had a plurality of 20 votes
over the contestant and is in possession of the seat. His right to the
seat, notwithstanding the notice and answer, is contested solely on the
ground of illegal votes that certain votes cast for him should be de-
ducted from the number reported in his favor. This is resisted on his
part, and to the claim he makes a counter-claim that certain other votes
cast for contestant should be deducted from the number contestant
claims to have received. There are thus 105 votes brought in question
by the contestant and 75 by the contestee. The grounds relied upon
by the parties in their objections to these votes are either non-residence,
minority, insanity, drunkenness, marked tickets, or bribery.

The only evidence of bribery in the case is produced on the part of
the contestant to prove that three Eepublican voters were approached
by Democrats and their votes bought. The effort is unsuccessful and
the charges are not sustained. It is matter of congratulation for the
country, that in the First district, against which, with the whole State of
Indiana, much has been said in the press, notwithstanding numerous
charges of bribery in contestant's notice and counter-charges in con-
testee's answer and every position has been pressed acrimoniously,
neither party has been able to support the charge. The only proper in-
ference is that no such evidence was available and the charges were un-
founded.

It is proper to observe here that much of the testimony in the case
has been taken out of time, or to speak more accurately, in rebuttal,
when by its substance it is evidence in chief. This is in violation of the
act of Congress, and was at the time objected to on the part of the con-
testee, who though present also refused to cross-examine on that ground.
No reasons for this course on the part of the contestant have been pre-
sented to the committee, and the committee has felt itself bound to ex-
clude such evidence from its consideration of the case. It believes that
the rights of the House under the Constitution are not abridged by the
act referred to, but that each Congress in enforcing those rights will not
depart from the terms of the act except for cause. This disposes of all

189

190 POSEY VS. PAREETT.

questions in the case except that of non- residence, for all others are sup-
ported only by such evidence.

There are two classes of voters brought in question in this case un-
der the head of non-residents : those known as the St. Meinrad voters
and the Kentucky voters, though the last description is not accurate
for not all included under it are spoken of as from Kentucky.

The St. Meinrad votes were thirty in number and were cast for. the con-
testee by students of the college or seminary at St. Meinrad. These
students were young men there solely for the purpose of an education
in preparation for the priesthood. They had come mostly from Indiana,
but many of them from other States and some of them from foreign
countries. Their tuition and support were furnished to them by their
respective bishops. They all testified that their residence was at St.
Meinrad. It might well be doubted if they meant more by this than
that they had been at that place the time necessary to make it their
home. A proper cross-examination would probably have disclosed the
misunderstanding of the witnesses. But we must consider the case as
it is presented. No one doubts the evidence of these very respectable
gentlemen that they had been at the institution most of the time for a
number of years and sufficiently long to have gained a residence if that
were the only requisite. But residence is a mixed question of fact and
intention; the fact without also the intention is not sufficient of irself
to establish a legal residence. And it is a well-settled principle of the
cases that one who leaves his home to go to college for the purpose of
an education does not from continuance there the required time gain a
residence. On the contrary, the very object of his stay raises a pre-
sumption against such result. This is not because the law adopts a
rule in the case of students different from that in other cases, but because
it also reasons from analogy and must in all cases be consistent.

The votes of those who in this case have been described as " Kentucky
voters" depend upon the same principles of law as those of the St.
Meinrad students, and both depend upon solving the problem whether
the individual voter ever in contemplation of law changed his place of
residence from that last had to that now insisted upon or opposed.

The law places a child's residence with his parents, not because they
are his parents but because theirs is the home into which he is born ; so
also with his guardian if his is his actual home. There he has the right
to vote the day he becomes of age and there he has the protection of
law, the right of support if ill-health, misfortune, or poverty over-
takes him whether in infancy or mature years ; there a citizenship,
which he has the right to prove and the flag to defend and against which
simple actual absence, no matter how long, will be no defense. Nor
does such residence depend upon the maintenance of the parental roof.
(Fry's Elec. Cases, 71 Penn. St., 302.) It moves with it only when the
law from other circumstances concludes the child is still a component
part. The homestead may have disappeared and yet the legal right of
the child or man be unaffected. The State will not disown its son, and
it recognizes the family when a component part but not its sole depend-
ence.

The intention of the voter is an important factor in determining the
place of residence, and the proper way is to examine the surrounding
circumstances to discover that intention. Plainly one who is a student
at a college or toiler in Kentucky may be a voter, but he may not more
than any other citizen have two places at either of which according to
whim or convenience he may on election morning determine to vote. The
law does not mean that a matter so vital to the rights of others shall

POSEY VS. PAERETT. 191

be concealed and hidden within the single breast of one of the parties.
Residence at the college, or in Kentucky, like residence at any other
place gives and takes away the right to vote, but when of a person simply
for the purpose of an education as in the case of the St. Meinrad stu-
dents or of labor as with many of the "Kentucky voters," it raises a
presumption of want of bona fides and necessity for other proof to show
that it was the intention of the voter it should have such effect.

The student voters were Catholics, and the form benefactions took
with them was from the bishop, and from this it was argued that the
bishop stood in loco par entis. Even if granted, it would not affect the
question involved, nor have more to do with it than if the studeuts had
been in a Protestant college, there supported, as is commonly the case,
by their churches for the Protestant ministry. The question would
still be, not whether their residence was that of the church by which
they were supported, but whether they had ever given up their last
residence and undertaken to acquire another at the college. To do so
they must either directly have renounced their former home and assumed
the obligations of citizens in their place of adoption, or done acts, open
and acknowledged, inconsistent with the one and assertive of the other.
Every one has a well recognized right to change his place of residence,
and may do so if he proceed in consonance with known principles.

Contestant's case must fail in regard to the students, not so much be-
cause in fact they were entitled to vote, as to use the language of the
supreme court of Indiana, in Pedigo v. Grimes (112 Ind., 148), " be-
cause there is no evidence that this (their intention of making that place
their residence) was not their intention formed and acted upon in good
faith." Each party at the hearing relied upon this case to support his
position. It is sufficient to say, while thus citing from it, that it will
not bear the extreme construction put upon it by contestee. That
would not only do violence to its language but place it in opposition to
the trend of decisions elsewhere upon which it claims to rest.

An application of these principles to the other votes brought in ques-
tion shows that the following were improperly cast and counted for the
contestee and should be deducted from his number, to wit: Solon Hedges,
Neeley Burden, Samuel Bogau, J. Nickens, A. Mckens, Thomas Hamp-
ton, Harry Hampton, Dink Miller, Frank Wiseman, Homer Campbell,
E. T. Conway, John Oaks, Thomas Crosnow, and Stephen Winters
total, 14; and that the following were improperly cast and counted for
the contestant and should be deducted from his number, to wit : James
Smith, James Eskridge, Alex. Boyd, Philip Dailey total, 4.

This still leaves the contestee with a plurality of ten (2014+4=10).

The committee is of the opiniun that the certificate uf election was
rightfully issued to William F. Parrett, and that he is entitled to the
seat. It therefore submits the following resolutions, and recommends
their adoption :

Resolved, That Francis B. Posey is not entitled to a seat in the Fifty-
first Congress as Eepreseutative from the First Congressional district
of Indiana.

Resolved, That William F. Parrett is entitled to a seat in the Fifty-
first Congress as Eepresentative from the First Cungressiunal district
in Indiana.

HENRY BOWEN vs. JOHN A. BUCHANAN.

NINTH VIRGINIA.

Contestant charged illegal voting, bribery, intimidation, illegal action
of election officers, and a general conspiracy on the part of friends of
contestee to defeat an honest expression of the will of the people.

The committee find some illegal voting, as well as some bribery and
violence, but not sufficient to vitiate the election or overcome the ma-
jority returned for contestee. The minority agree in the conclusion, and
also in finding some bribery and violence, but protest that the people
among whom these acts were committed were not responsible for them
and should not be censured.

The resolutions presented were adopted by the House April 16, 1890,
without debate or division. (Record, 3451.)

(1) Returning board. Power to correct return.

Where a county returning board in making out their abstract acci-
dentally omitted one precinct, but before forwarding their returns dis-
covered and corrected their mistake, held that this was just what ought
to have been done, and if this precinct return had been omitted it
would have been the duty of the committee to include it in the total
vote. The vote of a county can not be thrown out for such an infor-
mality.

(2) Population. Not to be decided icithout legal determination.

Where it was provided that in all towns of over 2,000 inhabitants a
transferred voter must have his transfer recorded at least 10 days prior
to the election, but in all other cases might vote without such registry,
held that the election judges had no right to decide that a town was
within the exception in the absence of any legal determination of its
population.

(3) Ballot box. Removal of.

Where the poll was closed for dinner, and the box removed from the
presence of the United States supervisor, held that but for the strong
affirmative proof that no wrong was intended or done in this case the
committee would unhesitatingly reject the return. .

H. Mis. 13713 193

194 BOWEN VS. BUCHANAN.

(4) Intimidation. When return to be excluded.

Where a small and known number of voters were intimidated to vote
for contestee in a precinct where in any event he would have had a
considerable majority, the return should not be rejected. Were their
number uncertain the return would be excluded, and if a sufficient num-
ber were so intimidated as to overcome the majority of contestee he
would not be entitled to retain his seat

REPORT.

APRIL 3, 1890. Mr. E DWELL, from the Committee on Elections, sub-
mitted the following report:

The Committee on Elections, having had under consideration the con-
tested election case of Henry Bowen v. John A. Buchanan, submit the
following report:

At the election held in the Ninth Congressional district of Virginia
on November 6, 1888, the total vote returned for Congressman was
32,562, of which number John A. Buchanan received a majority of 478
over his Eepublicau opponent, Henry Boweu, contestant.

The notice of contest charges, and the answer denies, illegal voting,
bribery, intimidation, illegal action of election officers, and a general
conspiracy on the part of friends of contestee to defeat an honest ex-
pression of the will of the people.

The evidence taken in the case affects the vote in a majority of the
fourteen counties composing the district.

It is cleariy shown that a number of illegal votes were cast for con-
testee by non-residents and other unqualified persons ; but the number
is comparatively small, and, in the view of the committee, a considera-
tion of them in detail would not change the result, and for this reason
we pass over this branch of the case.

The record contains considerable evidence to prove the corrupt use of
money by friends of contestee.

In Russell County, the existence of a corruption fund and a willing-
ness to use it are clearly established. Several votes were purchased
and attempts were made to purchase others. . Enough appears to arouse
suspicion that more votes were purchased than the evidence discloses.
The committee, however, can only deal with the facts established by the
evidence, however strongly they may suspect the existence of more ex-
tensive corruption than appears.

Samuel Sword was paid $6 to vote for contestee. William Sword
was paid $5. The father of these two boys was offered money for his
vote, but refused to sell. Pat. Eobinson, who handled the corruption
fund in the precinct where these men voted, claimed to be acting under
the direction of one Boyd, one of the judges of election.

At another precinct in this county, George Herron, a colored man,
received a pair of shoes for his vote ; and Mark Price was first threat-
ened with prosecution, and then given $2.50 to go home and not vote.
James E. Boardwine was paid $5 to remain away from the polls. He
would not sell his vote for money, but refrained from voting. Cumen-
ings Thompson was offered $3 for his vote, but declined the offer. Frank
Hess, James S. Hess, and Taze Honiker voted for contestee in consider-
ation of the release of a fine which had beeu assessed against Frank
Hess. 195

196' BOWEN VS. BUCHANAN.

The bargain in this case and in some others was made with the sheriff
and State's attorney of the county. Huston McNeel was induced to
vote the Democratic ticket by the release of a $25 fine standing against
him. William Dye and Lilburn Dye, his son, were purchased by the
satisfaction of a $15 fine standing against Lilburn Dye. This pur-
chase was made by the sheriff of the county and a satisfaction entered
by him. These 10 votes were directly purchased, and no attempt is
made to disprove the direct evidence establishing the fact. There is
considerable circumstantial evidence tending to show that others were
influenced in like manner in this county ; the money was provided; the
will to use it was not wanting, and, if there were other corruptible
voters in the county known to the corruptors, they were undoubtedly
reached in the same way and by the same representatives of the majesty
of the law, the sheriff and State's attorney of Russell County. We can
go no further than the evidence justifies and deduct these 10 votes from
contestee's majority.

In Dickinson and Wise Counties inducements were held out to illicit
distillers by United States revenue officers of immunity from prosecu-
tion for violation of the revenue laws, in consideration of support to
the Democratic ticket. Three or four voters are shown to have voted
for contestee on account of this kind of pursuasive argument. If others
were so pursuaded it does not appear in the evidence. Altogether
some twenty votes were lost to contestant in the manner above stated.

It is claimed by the contestant that several precincts in the district
should be entirely rejected, and if his claim should be allowed it would
be more than sufficient to overcome the majority returned for contestee.
In our view of the law and evidence none of these claims can be
allowed. We refer to some of them.

Giles County. Here it is claimed that the returns from the county
should be rejected, because the returning officers of the county cor-
rected their abstract of the precinct returns after it had been made up
and the board had adjourned.

It seems that in making up the abstract, by a clerical error, one pre-
cinct had been left out. Before the returns were transmitted to the
Secretary of the Commonwealth, the mistake was discovered and cor-
rected. This was just what ought to have been done, and if this pre-
cinct return had been omitted, it would have been the duty of the
committee to include it in the total vote. The objection is technical
and without merit.

It is further insisted that the return from Pembroke district should
be rejected on account of the misconduct of the election judges.

Sometime during the day a fight took place near the polling place,
and the judges of election all went out to witness it, leaving the ballot-
box in the custody of the clerks, who were of opposite political faiths.
During this temporary absence the Democratic clerk was seen to push
a ticket into the box, and it is claimed that this circumstance proves
that other ballots than those of the voters were deposited in the box.
The circumstance is explained in a manner quite consistent with the
honesty of the clerk. Just as the fight commenced, one of the judges
had received a ballot ami attempted to deposit it in the box, but in his
hurry did not quite succeed, leaving the ballot in the opening, and the
clerk pushed it down with his pencil. During the absence of the judges
no one interfered with the box, no one was prevented from voting by the
delay, and there is no evidence to impeach the return. Two or three
illegal votes were cast at this poll, but there is nothing to show unfair'
ness on the part of the judges.

BOWEN VS. BtfCHANAN. 197

Tazewell County. AtPocahontas precinct, Tazewell County, 40 votes
tendered for contestant, were in our view illegally rejected. By the
statutes of Virginia it is provided that in all towns of over 2,000 in-
habitants a transferred voter must have his transfer recorded at least
ten days prior to the election. At all other precincts .a transferred
voter may vote without such registry. It was claimed by the election
officers that Pocahontas was a town of over 2,000 inhabitants, and these
forty voters were denied the right to vote because they had failed to
have their transfers registered. Pocahontas is a new mining town;
no census, state or national, has disclosed the number of its inhabitants,
and there is a difference of opinion among the inhabitants as to the
number of people. In the absence of any legal determination of the
number, we do not think the election judges had any right to decide
that this town was within the exception.

Oontestee lost 4 votes by the same ruling, arid there was a net loss to
contestant of 36 votes.

Russell County. We are asked to reject the returns from Honaker
precinct, Eussell County, on account of alleged misconduct of the elec-
tion officers. At this precinct the election judges adjourned for dinner
and supper, and each time two of them took the ballot-box from the
polling place and carried it to a private house where they went lor their
meals. By this conduct the box was removed from the presence of the
United States supervisor, in violation of the statute. The supervisor
claims that he protested against the removal, but the preponderance of
the evidence is against his claim. The majority for the contestee at
this precinct was 89, a large increase over former elections. This
illegal act of the judges gave opportunity for fraud, such fraud as the
statute was designed to prevent. In the examination of other cases we
have found that adjournment and removal of the ballot-box from the
presence of the supervisor is a common method resorted to when it is
intended to change the ballots or the boxes. But for the strong affirma-
tive proof that no wrong was intended or done in this case, the com-
mittee would unhesitatingly reject the return.

The increase in the Democratic majority is accounted for, to some ex-
tent, if not fully, by the existence of the corruption fund spoken of in
this report.

At Loup or Johnson's Store precinct it is claimed that the returns
should be rejected because of the undue and improper influence of the
Stewart Land and Cattle Company over their employes, some forty or
fifty in number. The proof tends to show that at previous elections
these employe's had been given to understand that they must vote the
Democratic ticket or lose their places. It was generally understood in
the community that one of the conditions of employment by this com-
pany was that the men should vote the Democratic ticket. It is un-
questionably true that many of the men believed that to vote otherwise
would cost them their places, and that belief undoubtedly induced some
of them to vote against their convictions. But there is no direct evi-
dence implicating any of the members of this company in an attempt
to control their employe's at this election other than the presence at the
polls of one of their foremen distributing tickets to the men. How
many men were influenced by the prevalent belief does not appear, and
this supposed influence is too uncertain and indefinite to justify the re-
jection of this poll or other neighboring polls where some of the em-
ploye's voted.

Buchanan County. At Slate or Sander's precinct, in Buchanan
County, contestee received 62 votes, and contestant none. The evidence

198 BO WEN *VS. BUCHANAN.

shows that there are from ten to fifteen Republicans in the precinct;
that before the election word was circulated that no Republican would
be permitted to vote there; and that six or seven of them \veiit to the
polls, and were immediately assaulted by a crowd of drunken roughs.
The intervention of the more peaceably inclined saved them from injury.
Threats were freely made during the day against all who should at-
tempt to vote the Republican ticket. Three of those present, did how-
ever, vote the Republican national ticket, but they voted for coutestee
as a measure of prudence.

The majority of the voters at this precinct were peaceably disposed,
but a few vicious, drunken partisans of contestee deprived contestant
of the Republican votes of the precinct Were their number uncertain,
we would exclude the return, but as their number is not a matter of un-
certainty, and as contestee would have had a considerable majority in
this precinct, in any event, it is not in accordance with the precedents
to reject the return, if a sufficient number were so intimidated as to
overcome the majority of contestee, the committee would hold that he
had no right to retain his seat.

Dickinson County. Colly precinct : At this precinct the vote was 92
for contestee and 16 for contestant. In past years it has been dangerous
for a Republican to attempt to vote in this district. In 1834 only eight
voted, and some of these were badly whipped before they left the polls.
Previous to the day of the election in 1888 a political meeting was held,
at which a Democrat and a Republican spoke, as soon as the Republi-
can commenced to speak the disorder commenced, and one or two Re-
publicans were assaulted. Order was only secured by the efforts of
the Democratic speaker. After the meeting several Republicans were
assaulted. To protect the voters a United States supervisor was ap-
pointed at this poll, and the feeling of security which resulted brought
the Republicans to the polls.

Sixteen votes were cast for the Republican ticket, which, so far as
appears from the evidence, was the full Republican strength. Around
the polls there was plenty of fighting and drinking, but no attempt to
keep any one from voting. It is a very hard neighborhood ; illicit dis-
tillers abound j ignorance and vice prevail to an alarming extent, and
the prejudice against the Republican party is so strong that it can not
be said that a free expression of the popular will is possible. There are
few Republicans in the neighborhood, but those who are there are not
different in character from their Democratic neighbors, and some of
them are not averse to taking a hand in the violent demonstrations
which seem to be an accompaniment of elections. It does not appear
that either party lost any votes because of this violence.

Wise County Pond precinct. This is another piecinct where it is
claimed the returns ought to be rejected on account of violence at the
polls. An armed band of illicit distillers was at the polls during the
afternoon, drinking, shooting, and threatening; but the Republican
vote had all been cast before the violence commenced, and no one was
prevented from voting. For what purpose these men came to the polls
armed does not appear. They were law-breakers, accustomed to look
for attempts to arrest them, and to defend themselves, and it is prob-
able that they did not venture far from home, even to attend an elec-
tion, without carrying arms.

It seems from the evidence that in this section of Virginia election day
furnishes the occasion for drinking, fighting, and settling fends ; that
the peaceably-inclined understand the disposition of the more vicious,
and do not fear personal injury ; and that the rougher characters of

BOWEN VS. BUCHANAN. 199

both political parties are perfectly willing to take their chances on elec-
tion day. Conduct which would drive the mass of voters from the polls
in other communities does not seem seriously to aft'ect the result here,
and it is for this reason that we do not reject returns where so much
violence prevails.

Smyihe County. At Chatham Hill, Smythe County, complaint is made
of Mr. Baker, one of the judges, that he manifested a disposition to ex-
amine the tickets to see how men vpted. A fight took place at this poll
between whites and negroes, and there were other irregularities com-
mon to the section, but nothing to affect the integrity of the returns.

Wise County Clay House precinct. Here frauds upon the registration
are alleged. The registrar was away when he ought to have been at
his office, and three or four failed to register on that account. He was
active in getting Democrats on the register, and quite willing that He
publicans should fail to qualify. It does not appear that any were
registered who were not residents, and not more than four failed to
register on account of the misconduct of the office.

It is also claimed that between one hundred and two hundred col-
ored employes on the railroad were cheated out of their votes by fail-
ure to procure transfers from their former homes. There is nothing in
this claim. These men trusted to others to procure them transfers, and
neglected to do what was required of them. Trusting to others was
their misfortune, but it does not excuse their own neglect. Besides,
none of them tendered their ballots, and there is no sufficient evidence
that they were residents in the precinct.

In Halsten, Washington County, several persons were permitted to
vote for contestee without transfers or registration. This was true in
one or two other places, by which illegal voting contestee's majority was
increased by fourteen.

Other complaints were made, and evidence introduced to sustain them,
but we have referred to the more flagrant charges, and do not deem it
necessary to review the evidence further. Our conclusion is, that *he
majority of contestee is reduced to the extent of some 200 votes by the
various frauds, irregularities, and illegal votes proved by the evidence :
but this leaves him a majority of over 200 under a liberal construction
of the law, and a fair consideration of all the evidence. The committee
therefore submit the following resolutions :

Resolved, That John A. Buchanan was duly elected to the Fifty-first
Congress Irom the Ninth Congressional district of Virginia, and is
entitled to retain his seat.

Resolved, That Henry Bowen was not elected a Representative to the
Fifty-first Congress from the Ninth Congressional district of Virginia,
and is not entitled to the seat.

VIEWS OF THE MINORITY.

APRIL 7, 1890. Mr. O'FERRALL, from the Committee on Elections,
submitted the following views of the minority :

We concur in the foregoing report in so far as it declares that the
sitting member is entitled to retain his seat, but with many of its
statements and with much of its reasoning we do not concur. We will,
however, only call attention specially to two or three points of disa-
greement.

First. The criticism made upon the people of several counties of said
district, we think, is unjust and uncalled for. It is true that a few per-
sons under the influence of intoxicating liquors attempted to interfere
with, and in a few instances did interfere with, voters in the exercise
of their right of suffrage ; and it is also true that in a few instances
money or other thing of value was used improperly to influence voters
.in casting their ballots. But whilst these things are true and the con-
duct of the persons engaged in said wrongful acts -should be con-
demned, we do not think that the people among whom these wrong/-
doers lived should be censured for wrongs they did not commit and for
which they were not responsible. Neither do we think that one politi-
cal party should be criticised for the misconduct of men, some of whom
belonged to one party and some to the other, when said misconduct
was not approved by either.

Second. After the committee had determined that the sitting mem-
ber was entitled to retain his seat upon the contestant's own showing,
we do not think it was necessary to ascertain whether the sitting mem-
ber's majority was greater or less than that shown for him by the re-
turns, but if this was to be done, justice, in our opinion, demands that
the errors committed in the conduct of said election to the prejudice
of the sitting member as well as to the prejudice of the contestant
should have been considered and corrected. This was not done, yet it
is said in the report that the majority of the sitting member was some
two hundred less than that returned for him. This statement is clearly
incorrect. We are satisfied if all errors to the prejudice of either
party was corrected that the majority of the sitting member would be
as much if not more than that returned for him.

CHAS. T. O'FERRALL.

CHARLES F. CEISP.
J. H. OUTHWAITE.
B. P. C. WILSON.
L. W. MOORE.
LEVI MAISH.
201

EDMUND WADDILL, JR., vs. GEORGE D. WISE.

THIRD VIRGINIA.

The case turned upon the disposition to be made of the votes of a
large number of voters who attempted to vote for contestant in Jackson
ward, Eichmond. These voters were at the polling place, in line and
ready to vote, on the day of election, but were still in line when the
polls closed, having failed to reach the window. It was charged that
that their inability to vote was due to intentionally dilatory tactics re-
sorted to by the workers for contestee, with the aid and collusion of
the officers of election. The committee find this charge sustained by
the evidence, and regarding the votes as having been legally tendered
and unlawfully rejected, count them as if cast. They were all for con-
testant, and if counted would give him a majority in the district. The
minority find the charges of collusion on the part of the judges not
sustained by the evidence, and that if there was any needless delay it
was caused by partisans of contestant ; that the law as found in the
precedents is that in case the loss of votes was due to accident or mis-
fortune, there is no remedy, and contestee should retain his seat j in
case it was due to fraud the seat should be declared vacant. In this
case it was not due to fraud, but the minority, not being satisfied of the
justice of the established rule, and being of the opinion that the ends
of justice will be subserved by unseating the contestee and ordering a
new election, recommend that the seat be declared vacant. (See mi-
nority report, page 227.) The resolutions presented by the committee
were adopted April 12, 1890, the first without division, and the second
by a vote of 134 to 120, and Mr. Waddill was sworn in. The debate
will be found on pages 3294 to 3363.

(1) Vote. Improperly rejected.

A lawful vote properly tendered and unlawfully excluded may be
counted on a contest.

(2) Tender. What is.

The ability to reach the window and actually tender the ticket to the
judges is not essential in all cases to constitute a good offer to vote.
From the time the voter reaches the polling place and takes his position
in line to secure his orderly turn in voting, he has commenced the act
of voting.

203

204 WADDILL, JR., VS. WISE.

(3) Rejection. Constructive, by undue (May.

" If by the wrongful act of fraudulent challenges unduly prolonged
by the connivance and collusion of the judges of the election the voter
is deprived of the opportunity to vote, the interest of our form of govern-
ment and the purity of elections demand that the vote should be counted.
If the fraudulent exclusion of votes would if successful, secure to the
party of the wrongdoer, a temporary seat in Congress, and the only
penalty for detection in the wrong would be merely a new election,
giving another chance for the exercise of similar tactics, such practices
would be at a great premium and an election indefinitely prevented.
But if where such acts are done the votes are counted upon clear proof
aliunde, the wrong is at once corrected in this House and no encourage-
ment is given to such dangerous and disgraceful methods."

[REPORT.

MARCH 31, 1890. Mr. LACKY, from the Committee on Elections, sub-
mitted the following report:

The Committee on Elections, who have had under consideration the
contested election case from the third Congressional district of Virginia,
submit the following report :

At the general election held on the 6th day of November, 1888, in the
third Virginia district, Edmund Waddill and George D. Wise were
voted for to represent said district in the Fifty-first Congress.

The official returns show the following results :

Wise.

Waddill.

8 040

6 324

892

740

King William

739

1 099

1 646

1 565

365

705

1 688

2 340

Chesterfield

1,567

1 586

671

088

Total

15 608

15 347

Wise 15,608

Waddill 15,347

Majority for George D. Wise 261

(See Record, page 670.)

A number of votes are challenged in this contest, and irregularities
and fraudulent acts complained of'on both sides. The pivotal question
in the case is as to whether certain votes in Jackson ward, in the city
of Richmond, shall be counted. If these votes, or such of them as" are
clearly shown, should be counted for the contestant the contestant is
entitled to the seat, but if the votes in question are not counted the
contestant is not elected.

It is claimed by contestant that in Jackson ward 722 legal voters were
wrongfully prevented from voting; that these voters were lawfully
registered and qualified electors ; that they presented themselves in line
on the day of the election prepared to take their turns in voting, and
had in their hands, ready to deposit, ballots properly prepared to cast
for the contestant for member of Congress.

That the partisans and friends of the coutestee hindered and ob-
structed these voters by making frivolous challenges of lawful voters,
and that the judges of the election colluded with and aided the chal-
lengers in delaying the casting of the ballots by entertaining such
challenges, by. consuming unnecessary time in hearing and taking
action upon them, and by making needless explanations to the voters as
to the effect of certain constitutional amendments which were being voted

205

206

WADDILL VS. WISE.

on at the election : that by needless and fraudulent delays in receiving
and depositing the ballots, these 722 voters were prevented from cast-
ing their votes for contestant. Contestant further claims that 557 of
said voters thus prevented from voting remained in line at the time of
the closing of the polls, and that thereupon United States commis-
sioners prepared ballot-boxes and received the ballots of such voters
and deposited tbe same in the boxes and preserved the same, which
ballots were in evidence before the committee.

The votes thus in controversy are confined to three precincts of Jack-
son ward. Of these voters 457 were examined as witnesses.

In the first precinct contestant claimed that 255 of such votes were
deposited, and examined 199 of the alleged voters. The names and
pages of the record upon which their evidence may be found is here set
out:

Joshua Coles, 238 to 240.
William Branch, 240 to 241.
Beverly Travers, 242 to 243.
Clarance Peyton, 243 to 245.
Beverly Br oks, 247 to 248.
Thomas Furm, 248 to 250.
Jerry Turner, 250 to 251.
William Marshall, 251 to 263.
Augustus Anderson, 253 to 254.
\Villiam Armstead, 254 to 256.
Charles Butler, 255 to 257.
John Bolden, 257 to 258.
Jacob Bryce, 258 to 259.
David Robinson, 259 to 260.

B. W. Rivers, 260 to 261.
Robert Bentley, 262 to 263.
W. J. Barcroft, 263 to 264.
Abram Booker, 264 to 266.
James Braxton, 266 to 267.
G. C. Booker, 268 to 269.
Joshua Bowman, 269 to 271.
William Billnps, 271 to 272.
Isaac Clark, 273 to 274.

W. M. Clark, 274 to 277.
Daniel Clark, 277 to 279.
Thomas Anderson, 279 to 282.
D. Cheatham, 282 to 283.
Thomas Chatman, 284 to 285.
Henry Carter, 285 to 287.
Briscbo Cherry, 287 to 289.
Samuel Claxton, 289 to 292.
W. W. Scott, 292 to 293.
Henry Cooper, 294.
Robert Harris, 294 to 295.
Mordecai Brown, 295 to 298.
Emanuel Baker, 298 to 300.
Joseph Hennyman, 300 to 302.
Robt. B. Taylor, 302 to 304.
Madison Banks, 304 to 306.
Braxton Smith, 306 to 308.
Jesse Coy, 308 to 310.
Peter Henley, 310 to 312.
Reuben Jones, 312 to 314.
Henry Harris, 314 to 316.

C. M. Kemp, 316 to 318.
Wilson Thomas, 318 to 320.
John Robertson, 320 to 321.
W.C.Scott 321 to 323.
William Lewis, 323 to 325.
Charles H. Muse, 325 to 327.
Tbos. D. Payne, 327 to 330.
W. N. Rivers, 330 to 331.
Robt. H. Taylor, 332 to 334.
Marcellus Puryear, 334 to 336.
Reuben Lewis, 336 to 338.
Charles H. James, 338 to 339.
Scott Jackson, 340 to 341.
Tba'ldeus Boiling, 341 to 343.
Nelson Ross, 343 to 345.

Geo. Hunt, 345 to 346.
W. S. Banks, 346 to 348.
Frank Ten-ill, 348 to 349.
Edward Johnson, 3*9 to 350.
Abram Kinney, 350 to 351.
Geo. Taylor, 352 to 353.
Thomas Lee, 353 to 354.

W. P. Burrell, 355 to 358.
Gilliam Jones, 359 to 360.
Stonewall Jackson, 360 to 361.
Joseph Brown, 3(U to 363.
Cassandrow Banks, 363 to 364.
Wm. Crump, 364 to 366.
William Scott, 36G to 368.
Charles Scott, 368 to 369.
W. T. Taylor, 369 to 371.
Ryland Lewis, 371.
Lewis Jackson, 372 to 373.
Major Johnson, 373 to 374.
Ned Stanton, 374 to 376.
Albert Jackson, 376 to 378.
Jones Allen, 378 to 379.
William Richardson, 379 to 380.
Abram Tinaley, 380 to 382.
Oscar Taylor, 382 to 383.
James E. Taylor, 383 to 384.
Geo. Selden,'384 to 385.
Geo. Mimms, 386 to 387.
E. C. Smith, 387 to 388.
Charles Rainey, 392 to 393.
David Strother, 395.
Benj. Thompson, 396 to 397.
Edward Jones, 397 to 398.
James Johnson, 398 to 400.
John Johnson, 400 to 401.
Daniel Reynolds, 406 to 407.
Henry Vehable, 407 to 409.
James Vaughn, 109 to 410.
Patrick Jackson, 410 to 411.
Seymour Johnson, 412 to 414.
Royal White, 420 to 421.
Joseph Wilkinson, 421 to 422.
Robt. Lynch, 422 to 423.
Cornelius Dabney, 423 to 425.
Geo. Dawson, 425 to 426.
Anthony Gray, 426 to 427.
Thomas Jefferson, 427 to 428.
Robt. Johnson, 429 to 430.
John W. Jackson, 430 to 431.
Joseph Harris, 431 to 432.
A. D. Price, 433 to 434.
John Martin, 434 to 435.
Henry Dedman, 435 to 437.
Mac Fravser, 437 to 438.
Jonas Epps, 438 to 439.
Peter Haft, 439 to 440.
Russell Foster, 440 to 441.
Peyton H. Green, 442.
William Da vis, 443 to 444.
Jack Hayes, 444 to 445.
Wilson Louey, 445 to 448.
Nelson Lee, 448 to 449.
Eugene Garrison. 449 to 450.
Isaac Johnson, 451 to 452.
M. C. Methord, 452 to 454.
Lewis Green, 454 to 455.
Geo. Mayo, 455 to 456.
Van Washington, 456 to 457.
Jas R. Gross, 457 to 458.
Washington Cootes, 458 to 459.
Wm. D. Poindexter, 460 to 461.
James Wren, 461 to 463.
Richard Morton, 463 to 464.
J. A. Moss, 464 to 465.

MadisonPendleton, 465 to 467.
Sam'l Wade, 467 to 468.
Geo. Wood, 468 to 469.
Benjamin Wray, 469 to 471.
William H. Pollard, 471 to 472.
R. W. Edward, 472 to 473.
W. H. Massey, 473 to 475.
Grautland Marks, 475 to 476.
Giles Willis, 470 to 477.
Collin Yaies, 478 to 480.
Archer Woodson, 480 to 481.
Geo. Washingtolt, 481 to 482.
John Lewis. 48:i to 484.
Jesse Williams, 484 to 486.
James Morris, 486 to 488.
Robt. Maston, 488 to 489.
Fleming GIover,-489 to 490.
Robt. Yancey, 490 to 492.
S. L. Leftwitch. 492 to 493.
Emanual Williams, 493 to 494.
Joe Wormley, 495 to 496.
Edward Williams, 496 to 497.
John Wallace, 497 to 498.
Albert Wray. 498 to 499.
Alex. Gaines, 500 to 501.
Joseph Fortune. 501 to 502.
Henrv Willis, 502 to 503.
J. H. D. Wingfleld, 503 to 505.
Robt. Dickerson, 505 to 506.
A. R. Lucado. 506 to 507.
Armstead Miller, 507 to 508.
John White. 509 to 511.
William H. Frayser, 513 to 51o.
Jeff Mitchell, 516 to 517.
William Fox, 520.
Fielding Hundley, 521 to 523.
William Fauntleray, 523 to 524.
J. H Cox, 530 to 5 ii.
Joseph Woodfolk, 531 to 532.
Peter Chandler, 670 to 672.
Robt. H. Hill, 672.
Andrew Jackson, 673.
John Boiling, 673 to 674.
Moses Peters, 674 to 675.
Emannel T. Jenkiiw, 675.
Enos Johnson, 67 to 676.
Paul Ballow. 676 to 677.
Richard I/. Harris, 677 to 678.
Joseph Bell. 678 to 679.
Geo. O Brown, 679 to 680.
Joshua Hentlley, 680.
Archer Harris, 680 to 681.
Jas. H. Pride, 681 to 682.
Anthony M. Reed, 682 to 683.
Geo. E. Burke, 683.
Mark A. Ball, 683 to 684.
Albert Hooper, 684 to 685.
Alexander Holmes, 685 to 686.
Jas. E. Brooks, 687.
Jas. Thomas Carter, 687 to 688.
Henrv ohnson, 688 to 689.
Albert A. Harris,89.
Preston Hopkins, 690.
Jacob Brown, 690 to 691.
Stirling Pleasants, 691 to 692.
Jas. T. Brooks, < "

WADDILL VS. WISE.

207

In the third precinct contestant claimed that 168 ballots were de-
posited there with a United States commissioner, and of these voters
136 were examined. We give their names and the pages of the record
where their evidence may be found :

Albert Bundy, 646 to 647.
Charles H. Thompson, 647 to 648.
Geo. L. Motley, 648 to 649.
Henderson J. Brown, 650 to 651.
Peter W. Taylor, 652.
John D. Frayser. 652 to 653.
James Armstrong, 695 to 697.
W. B. F. Thompson, 699 to 702.
Isaiah Taylor, 702 to 705.
T. M. Perkins, 706 to 707.
Win. H. Taylor, 707 to 711.
Randolph Taylor, 711 to 713.
Ambrose McKinney, 713 to 714.
Louis Christain. 715 to 716.
Samuel Cox, 716 to 717.
Thomas Thompson, 717 to 718*

B. S. Garnett, 718 to 720.
Matt Taylor, 720 to 721.
W. H. Johnson, 721 to 722.
Robt Mo.Kenpy, 722 to 723.
Root. Coleman, 723 to 724.
Wm. H. Mosby, 724 to 725.
Henry Gray, 725 to 727.

I. H. Soott, 727 to 728.
J. M. Williams, 728 to 729.
Samuel Mayo, 729 to 730.
Thomas Graham, 730 to 731.
Samuel D. Payne, 731 to 733.
Henry O. Payne, 734.
S. M.Ellington, 734 to 737.
Robinson Lucas, 738 to 741.
Geo. W. Leake, 741 to 743.
Go. Minims, 743 to 747.
William Stanton, 747 to 750.
William W. Hill, 750 to 752.
James Russell, 752 to 754.
Samuel Richardson, 754 to 756.
Malachi Griffin, 757 to 758.
Andrew Morgan, 759 to 760.
Lewis Williams, 760 to 762.

C. Washington, 762 to 764.
Wilson E. Baker, 764 to 768.
Charles Williams, 708 to 769.
Joseph Taylor, 770 to 771.
Boston Ferrell, 771 to 773.

William Boiling, 533 to 535.
Pay ton Brooks, 535 to 537
H. M. Booth, 537Jto 538.
Cornelius Palmer, 538 to 540.
Edward Black, 540 to 541.
Renlien T. Hill. 542 to 543.
Marcus Bowles, 543 to 544.
Alexander Allen, 544 to 545.
Valvin T. Mann, 545 to 546.
Carter Marshall, 546 to 547.
Frank E. Black, 548.
Jas. Anderson, 548 to 549.
James Bell, 550 to 552. '

Abner Cocley, 552 to 554.
Jas. J. Foster, 554 to 55o.
Geo. M. Booker, 555 to 557.
Joseph Baker, 557 to 558.
Geo. Uuncan, 558 to 559.
Albert Hundley, 559 to 560.
Wesley Harris," 560 to 562.
Osborn Holmes. 562 to 564.
William H. Hall, 564 to 565.
William H. Hope, 565 to 566.
Henry N. Dyson, 567.
Robt. Hawkins, 568 to 569.
James Jackson, 509 to 570.
Geo. Jackson, 570 to 571.
Collin T. Payne, 571 to 573.
Geo. D. Jimmerson, 573 to 574.
Robt. E. Johnson, 574 to 575.
Henry Chiles, 575 to 576.
Spencer Johnson, 576 to 577.
Andrew J. CHIT, 577 to 578.
Joseph Cauthorn, 578 to 579.
Israel Meriweather, 579 to 582.
Geo. H. Chiles, 582 to 84.
Andrew Dabney, 584.
Scott Freeland,'585 to 586.
Tim Flood, 586 to 587.
Charles Frayser, 587 to 589;
Gilbert Murrell, 589 to 591.
Jas. H. Fauntleroy, 591 to 594.
Muses Page, 594 to 595.
Thos. D. Harris, 596 to 597.
Jacob Taylor, 597 to 598.
Th'eophilus Winston, 598 to 599.

William M. Scott, 599 to 601.
And'w J. Rutherford, 601 to 602.
Archer Thomas, 602 to 603.
John H. Phinney, 603.
England Thornton, 605 to 606.
Thomas Stuedley, 606 to 607.
John Mitchell, 607.
Parker Ellett, 607 to 608.
Gilmore Robinson, 608 to 609.
Shirley C. Williams,609.
Joseph Ward, 610.
Thomas Curd, 610 to 611.
Wm. E. Thomas, 612 to 613.
Otway Dandridge, 614.
Samuel Walton, 614 to 615.
John Duncan, 615 to 616.
Jesse Williams, 616 to 617.
Wm. W. Clay, 617 to 619.
Geo. Seay, 619 to 620.
Mason Harris, 620.
John Allen, 621.
James Dell, 621 to 622.
Lawrence Latney. 622 to 623.
Samuel Tinsley. '623.
Thos. Tinsley,'62:5 to 624.
Archer Smith, 624 to 625.
Albert Johnson, 625 to 626.
John T. Glasgow, 627 to 628.
John Logan, 626 to 632.
Robt. Green, 628.
James E. Woodson, 629.
Wilkins Harris, 629 to 630.
Jacob Jordan, 630 to 631.
Charles Clay brook, 631 to 632.
Moses Harris, 633.
Robt. R Spencer, 634.
Albert T. Scott, 634 to 635.
Junius R. Smith, 635 to 636.
Walter Daniel, 636 to 637.
John W. Williams, 637 to 638.
Richard Taylor, 638 to 639.
William Carrington, 639 to 642.
John Jasper. 642 to 643.
David Lee, 643 to 644.
Beverly Branch, 644 to 646.
Albert Jones, 646.

In the fourth precinct he also claims that 134 voters thus cast their
ballots, and that 122 of these voters were examined, whose names we
now give, and we refer to the record, where their depositions mav be
found :

Green Robinson, 773 to 775.
Henry Jones, 775 to 776.
Washington Hill, 776 to 77a
Elisha Jones, 778 to 781,
James H. Burke, 781 to 782.
Alexander McCoy, 782 to 784.
Elisha Morris, 785 to 787.
Alexander Forrester, 787 to 789.
Joseph Jefferson, 789 to 791.
Kirk Mason. 791 to 793.
Henry Brooks, 793 to 794,
Thos. M. Gaines, 794 to 796.
Dorsey Taylor, 796 to 797.
Chast'iue Fisher, 798 to 799.
William Jackson, 799 to 800.
John Hamm, 800 to 802.
Richard Adams, 802 to 803.
Mordecai Q. Jones, 803 to 804.
A. P. Fleet, 805 to 806.
Bright Granger. 806 to 807.
Peyton Rice, 808 to 809.
Junius Roberts, 809 to 811.
Sydney Johnson, 811 to 813.
E'dmond Foster, 813 to 814.
William H. Price. 814 to 816.
John T. Allen, 816 to 818.
Sandy Robinson, 818 to 820.

James Hansbury. 820 to 821.
William Wells, 821 to 822.
Joseph Wells, 822 to 823.
Edward C Roman, 832 to 834.
Alfred T. Baker, 834 to 836.
Daniel Edmund, 836 to 838.
Thos. R. Hewlett, 838 to 839.
Cornelius L. Harris, 840 to 842.
William Braxton, 842 to 843.
Chas. Goodwin, 844 to 846.
Jack Gaines, 846 and 892.
Wellington Booker, 848 to 849.
William Bell, 851 to 853.
Stephen D. Turner, 854 to 855.
R. Emmett Harris, 855 to 857.
Gray Evans. 857 to 859.
Walter S. Howard, 860 to 861.
Robt. Crittenden, 862 to 863.
David Hill, 863 to 865.
Edward Carter, 865 to 866.
William Harris, 866 to 868.
Collin T. Valentine, 868 to 870.
Jos H. Patterson, 870 to 871.
Timothy Harris, 871 to 872.
W. P. Dabney, 873 to 875.
James Jones, 875 to 877.
John Holmes, 877 to 879.

Edward Norris, 879 to 881.
Joseph Custalo, 881 to 883.
Robert George, 883 to 885.
Washington Moody, 885 to 887.
Robert Walker, 887 to 889.
Dandridge Stevens, 890 to 892.
Wise Jackson, 892 to 893.
Chris. Blunt. 893 to 894.
Lewis Thompson, 895 to 897.
Winston Poindexter, 898 to 899.
James Thomas, 899 to 901.
James Lawson, 901 to 903.
Nathaniel White, 903 to 904.
Wm .Washington, 904 to 907.
A. Reed, 907 to 910.
W. H. Lewis, 910 to 911.
Henry Warner, 911 to 916.
Alfred Dickerson, 916 to 917.
Addison Lewis, 917 to 919.
Daniel Overton, 919 to 921.
Wyate Hubbard, 921 to 923.
Robt. Taylor, 923 to 925.
Henry Timberlake, 925 to 927.
Robt. Johnson, 927 to 928.
Allen A. Armstead, 928 to 930,
John Griffin, 930 to 932.
W. E. Hope, 932 to 934.

208 WADDILL VS. WISE.

Kobt. Beazley, 934 to 937. William Lightfoot, 958 to 959. Joseph Jackson. 977 to 979.

Geo. F. McKenney, 937 to 940. Dutch Kelley, 959 to 961. James Morton, 979 to 980.

Charles W. Frost, 940 to 942. Philip Daniel, 961 to 963. R. J. Allen, 981 to 984.

Santee N. Lundy, 942 to 944. John Law, 963 to 965. Frank Hicks, 984 to 986.

A. A. Patterson. 944 to 946. James Brooks, 965 to 966. Moses Lewis, 9?6 to 988.

Frank Horton, 946 to 948. Napoleon Joies, 967 to 968. William Garuett, 9S8 to 990.

Austin J. Miller, ,048 to 95C. J. C. Harris, 968 to 970. John Edmunds, 990 to 991.

Moses P. Randolph, 950 to 951. Wm. R. Robinson, 970 to 972. Samuel Brown, 991 to 993.

Robert Taylor, 951 to 953. D. E. Robinson, 972 to 973. Leander Waller, 993 to 995.

James Wells, 953 to 955. Philip Daniel, 974. Jos. T. Stewart, 995 to 997.

Lewis Trent, 955 to 957. William Randolph, 974 to 975. Z. Newton, jr., 998 to 999.

C. A. Booker, 957 to 958. Jno. Thos. Baker, 975 to 977.

The evidence clearly shows that from 457 to 722 legal voters ineffect-
ually attempted to cast their ballots for the contestant in Jackson
ward. It will not be necessary to discuss the evidence as to the exact
number^ for if this class of votes is to be counted for contestant he
would be entitled to his seat upon the smallest number that the evi-
dence could be fairly held to show. We are of the opinion that at the
least 457 of such votes are clearly shown, which is more than sufficient
to overcome the majority of 261 returned for contestee.

Many of the colored voters fell in line the night before the election,
prepared to vote. These three precincts were inhabited by a large
colored population, and a large majority of the voters were Republi-
cans and favorable to the contestant. A report had gone out that
coutestee's friends had made an arrangement to delay the vote in these
precincts for the purpose of reducing the anticipated majority for the
contestant. That such procedure was anticipated and feared it* evident
from the fact that the day before the election George Duncan, Federal
supervisor, wrote to M. F. Pleasants, the chief supervisor, calling his
attention to this method of obstructing the election.

We set out this correspondence from 1624, 1625 of the record :

RICHMOND, VA., Nov. oth, 1888.
To M. F. PLEASANTS, Esq, Chief Supervisor:

SIR: I am Federal supervisor of election at first precinct, Jackson ward, and as
such am anxious to be informed as to my duties as such supervisor at my precinct.
The chief trouble is to poll our vote in consequence of the large number of persons
on the registration books, and the manner in which the officers of election, and those
who wish to prevent a full vote, conduct themselves ; for instance challengers who
desire to prevent the polling of a full vote systematically challenge the whole colored
vote as it comes to the polls by asking all sorts of ridiculous questions. For instance,
of a citizen who has resided within a stone's throw of a precinct for twenty years
and is seventy years old, whether he lives in the precinct, how long he has resided
there, when he moved in, whether he is twenty-one years of age, when he became of
age, when he was born, where his parents reside,, where was he born, and such like
foolish and irrelevant questions. To these the judges of election quietly listen and
encourage until on an average five minutes are consumed in voting a colored man,
and at sunset there is left in line a large number of qualified voters deprived of the
right of suffrage and who have been in line with tickets in hand, for ten hours,
seeking an opportunity to vote. Is there not some Federal statute covering this class
of interference with elections and making it impossible for these colored citizens to
cast their ballots f

I am, with great respect, your obedient servant,

GEORGE DUNCAN.

RICHMOND, VA., Nov. 5th, 1888.
To GEORGE DUNCAN, Esq.,

Supervisor of Election, First Precinct, Jackson Ward, Richmond, Va.:

SIR : In reply to your letter of this date I have no hesitation in saying that the acts
referred to therein are, in my opinion, a clear violation of section 5500 of the, Revised
Statutes of the United States and render them perpetrators liable to the fine and im-
prisonment prescribed by that section. That section is as follows:

SECIIOX 5506. Every person who, by any unlawful means, hinders, delays, prevents,
or obstructs, or combines and confederates with others to hinder, delay, prevent, or
obstruct, any citizen from doing any act required to be done to qualify him to vote,

WADDILL VS. WISE. 209

or from voting at any election in any State, Territory, district, county, city, parish,
township, school district, municipality, or other territorial subdivision, snail \wjined
not less tlian five hundred dollars, or bo imprisoned not less than one month, nor more
than one year, or be punished by both such tine and imprisonment.

M. F. PLEASANTS,

Chief Supervisor.

Evidence was introduced supporting the claim that there was a con-
spiracy to prevent the voters from casting their ballots and we give a
portion of the evidence.

DAVID ROBINSON (first precinct) p. 259-'60 :

8th. Question. State whether or not you had a conversation with Mr. Cottrell, the
Democratic judge of election at this precinct, and if so state when it took place and
what was its purport? Answer. The night after registration, which was ten days
previous to election, I was in his bar-room. I was talking about the number of votes
which would have to be cast on the day of election, and he said to me that you
would not cast more than 400 votes at this poll on the day of election. I inquired
of him diligently to tell me why, and he did not give me definite answer.

EDWARD THOMPSON p. 1441 :

Question 15. Heard Bdvin say in the morning that he intended to hold that vote
down that day within 300.

IRA BENEDICT p. 63:

Question 2. I think on the day before the election, November the 5th. at the ter-
minus of the Richmond Union Passenger Railway, 29th and P stretts, Marshall ward ;
present, Mr. Timberlake, one of the judges of election, first precinct, Jackson ward,
Mr. Buck Adams and Capt. Peter Smith, and good many others whose names I do not
know. Mr. Adams rather Mr. Timberlake remarked first that he calculated having
the handling of about 1,200 negro votes in Jackson ward. Mr. Adams then remarked
that we will shrt out about half of them. Mr. Timberlake in reply said, " Right you
are, partner." I do not know whether there is anything else ; but there is : I now
recall another remark by one of the employe's of the railroad : " Timberlake, yon are
a damn fool for talking that way. You will get yourself into trouble." I believe
that is all I remember now.

PETER SMITH p. 1460;

Question 3. Heard and corroborates above statement of Benedict.

M. M. WILLIAMS p. 71 :

Question 2. Timberlake said he had shut out enoogh votes in Jackson ward to
elect Wise.

W. C. RHODES p. 75 :

6th. Question. Have yon had any conversation with any of the judges of that elec-
tion ; if so where and what was said? Answer. The day before the election I was
in conversation with W. L. Timberlake, judge at the first precinct, Jacksou ward, I
think. He said, " We are going to carry Jackson ward for Cleveland, Thurman, and
George D. Wise, I bet you." I said to him, " You must be crazy ; how can that be
done when the ward gives from 1,800 to 2,500 majority ?" He says, "Well, we are
going to knock them out."

H. P. HARPER p. 69 :

Question 2. Heard young man traveling with Elector Ellett and City Attorney Mere-
dith, at first precinct, say constitutional ballots were to be used to hinder and delay
the election.

GEO. DUNCAN (U. S. supervisor, first precinct), p. 1380-'81 :

Question 26. Heard Cottrell and Timberlake, judges, and Smith and Belvin, chal-
lengers, during the latter part of the day congratulating themselves on the success of
their efforts in keeping out votes.

EDWARD THOMPSON, p. 1443 :

Question 15. Thompson was ward superintendent. " Once during the day I ap-
pealed to Mr. Belvin to allow us to poll our vote." He said, " Thompson, this is life
or death with us."

JOHN H. CAMPBELL, p. 179 :

Question 2. Heard a gentleman come up and ask one of the gentlemen with the
disfranchised Itsts if he had voted that man he sent up ? He said no, but we delayed
the election about ten minutes, and that was better than his vote.

H. Mis. 137 U

210 WADDTLL, VS. WISE.

JOHN W. GRAVES, p. 138 :

Question 3. When approaching polls to vote in white line was whispered to by the
assistant challenger, who said, "Delay them all you can." Upon enquiring as to
what was said, the challenger said, ' When judge questions you in regard to the con-
stitutional amendment, ask him what it means, what it is for, and all about it."

J. W. TYLER, p. 84 :

Question 3. " Glazebrook," challenger, was challenging nearly every voter. Wei-
ford, the lawyer, remarked, " Let those vote who are entitled to it." Glazebrook
winked at the time, and said the more votes that were challenged there would be
shut out at the close.

FRANK MANN (fourth precinct), p. 158 :

Question 6. Heard statement of Finnerty aud Gentry, judges at fourth precinct, as
follows : The night before the election on Monday night me and a friend of mine
was passing down Seventeenth street, and I heard Mr. Finnerty tell Mr. Gentry to
vote the niggers slow. I said to him, " Hi, Mr. Finnerty, are yon going to vote us
to-night?" I said to Mr. Finnerty, " I will see you to-morrow." Well, the next day
when they took recess after voting up to 12 o'clock he says to me, "Frank, we've
got you to-day." Then I said to him, "You recollect last night when you told Mr.
Gentry to vote us all slow." I told him in the presence of Mr. Rankin and Mr. Hagan
when he was coming out of Mr. Hagan's door what I have just said. He just laughed
at me.

JAMES H. BARRETT, p. 209 :

2d Question. Where were you on the evening before the 6th day of November last,
and what occurred with reference to the election to be held the next day ? Answer.
I was coming down Seventeenth street between 7 and 8 o'clock in the evening, and
Frank Mann overtaken me by the elevator. We were on our way to the Republican
headquarters. When we arrived opposite Venable street we met Mr. Finnerty and
Mr. Gentry talking. As we arrived opposite them heard Mr. Fiunerty say to Mr.
Gentry, " Vote these niggers slow to-morrow. " His reply was, "All right. " At that
time I had gotten by them and did not hear any more that passed. My friend
Frank Mann stopped and said something to them and then overtaken me.

Governor JAMES H. HARVEY, p. 195 :

10th Question. State whether or not you heard any one say anything about the
voting in Jackson Ward ? Answer. I heard at the polls a great many say the voting
was purposely delayed in order to hinder the colored voters from casting their ballots.
After the polls were closed at night, while waiting in front of the Dispatch office, I
heard a man state (I inquired his name and I was told he was Pettit) that he had
had the pleasure that day of seeing 500 or 600 negroes cut out of their votes. He
said he had been carrying refreshments from Binford's out to the boys in Jackson
Ward.

WM. WALTER COLDWELL, p. 135.

Ans. On the night of the election, while waiting to see the returns as flashed on the
canvas at the Despatch office, I heard some one say, "How are you Mr. Hughes?"
The answer came back, "How are you, Harwood; how has it gone in Jackson Ward?"
On that I immediately turned, and my elbow or my body touched ex-Mayor Taylor, of
Manchester. Harwood replied, "We have done better than we expected." I don't
mean to say these are the exact words, but they give the substance. Mr. Hughes
answered, "How many have you thrown out?" Mr. Harwood replied by saying
" From seven to eight hundred." Mr. Hughes inquired, " How did you do it f" Har-
wood's reply was, " Why, it took two hours and forty-five minutes to vote one man.
I sent him to his house four times for his number. He would come back one time
and I would tell him it is wrong ; go back and get it again." Ex- Mayor Taylor then
said to Mr. Harwood, " Was that an unavoidable delay, or a natural delay ?" These
are his exact words. Mr. Harwood's answer was, " We fixed everything last night,
but we have done better than we thought we would." Ex-Mayor Taylor then de-
nounced it, and said that it was an outrage, and no wonder that the Northern press
denounced and condemned the Southern people for such outrage. I had no part in
the conversation.

The plan complained of by Mr. Duncan was carried out fully by ad-
herents of the coutestee and resulted in the exclusion of more than
enough votes for contestant to change the result. The object of the
persons engaged in this mode of disfranchisement clearly appears when
it is known that out of all the great number of voters who were pre-
vented from voting none of them belonged to the political party of the

WADDILL VS. WISE. 211

contcstee. The evidence upon this question is very voluminous and we
will give a few brief extracts to show its general character.

B. C. STOKES, a colored election judge, testifies :

14th. Question. How did they obstruct the polls? Answer. By crowding np on the
little narrow window they voted at, occupying about half the little narrow window,
and this way crowding voters and those friends ; other stranger challengers, they
would ask an old man about sixty years old, with gray hair, whether he was twenty-
one. The old colored man would say in those cases he would take off his hat and
say, look at my bald head and see.

20th. Question. Repeat, as near as you can, the kind of questions they would ask,
them. Answer. How old are you ; what is your age ; where do you live ; what
street, number (great many Questions asked at times whether they live in Chester-
field County or Henrico) ; how long you been living in the State, city ; sometimes a
man would give his number of house, and if it did not agree on his book with the
name, that is the poll-book, registration-book, though it was proven that was the
right man, they would send him off to get his number.

21st. Question. Do you mean that they wouldn't let a man vote if there was a dif-
ference in the number of his house on the same street between the registration-book
and his answer to the question? Answer. Yes, sir; they wouldn't let him vote.

22nd. Question. Were any objections made during the day to the occupying of the
window by Mr. Belvin and others? Answer. There was objection made by Mr. Dun-
can, Stokes, myself, by Mr. Allan ; and the Democratic challengers threatened to
have Mr. Edgar Allan arrested for objecting to their obstructing.

Answer to 25th question. Belvin was arrested.

49th. Cross-question. You have said that Mr. Belvin threatened to have Mr. Allan
arrested. What called forth this remark ? Answer. Mr. Allan was instructing the
voters as they came to the window to say " Presidential ticket only," in order to
save dispute as to whether they wanted to vote about the constitutional question.

Answer to 1st question on re-exainination. I think his questions were very un-
necessary. In my judgment, to obstruct the election, that we might not have a fair
representation of the vote of the precinct.

A. C. ROCKECHARUE, who was the clerk in taking the ballots and keeping a list of
persons who were prevented from voting, testifies :

Answer to 2d question. Belvin took up half the window and challenged about 70
percent, of the voters, assisted by Smith, Briggs, and other comrades, and that Mr.
Epps, sergeant of police, had the constitutional card read over twice, pretending he
did not understand it, and consumed over three minutes.

4th question. Smith said he wanted to kill time.

3d. Question. Look at the said memorandum book as far as you can recollect it was
made at the time, and give the names of any parties, after thus refreshing your mem-
ory, that participated in said election, and state whether and what they so did when
they were engaged in an effort to facilitate the voting, or to make it impossible to
poll the full vote. When this diversion in reference to the memorandum book which
you have now produced took place you were giving certain names. I ask, in answer
to the question, that you go on with any additional names, as far as you can do so by
refreshing your memory from said book. Answer. Hillary Jones I noted out there

There was an Italian (or of some foreign nationality) out there named Doftiinnici
K. Perross. He was challenged by Belviu, and Cottrell asked him if he wanted to
vote on the constitution. The constitutional law was read to him. Belvin, finding
out how the vote stood, withdrew his objection as challenger; that is, finding out it
was a Democratic ballot, he withdrew said objections. Another, named A. Perross,
he called for the reading of the constitutional law, and didn't vote the ticket afterit
was read to him. He was prompted by Belvin as to the reading of the law. Another,
named M. J. (or G.) Dugin. I am giving these names from memory. Cottrell, the
judge, who took tickets I suppose he was judg^e. He asked Mr. Dugin if he (Dngin)
wanted to vote on the constitution and have him (Cottrell) to read and explain the
law to him. I suppose between three and four minutes were consumed. There was
a colored citizen named Thomas Coak, or Cork, came up to vote. Cottrell asked him
his name. He said, " My name is ThomasCork." Belvin says I suppose you would
style it judge, who was looking over the colored book Belvin

(The witness here desires the word "says," above in the incomplete sentence " Bel-
vin says," struck out and changed to " hollowed at him.")

Belvin hollowed to the Judge that his name begins with a " K." Belvin knew at
the time that it began with a " C," for he held his finger on the name in the chal-
lenger's book. Another, named Geo. Mirams, was rejected because he gave the
wrong number of his house, though he claimed to live in the same precinct. Isaac
Christian was challenged by Smith that is, Harry Smith ; peremptory was the word
he used. I don't know what he means by it. Collauuau was another, I believe, N.

212 WADDTLL VS. WISE.

G. He called, rather asked, that this constitutional law be explained to him. Cot-
trell, the judge, read the law to him; he consumed time between two and three
minutes. Another named Thorps. I think Robert, I am not positive as to Chas. He was
challenged by both Smith and Belvin. Belvin says, " Halloo, Jack, what kind of
ticket is that you have got ?" Smith says to Belvin, ask him if he was sick. Belvin
did ask him the question. The time consumed was nearer four than three minutes.

Answer to 10th question. Cottrell very slow in reading the oath.

llth. Question. State whether the colored voters voted generally on the constitu-
tional convention question or not, and state what happened in reference to their
desire to vote or not to vote on said proposition if anything. Answer. I haven't
any recollection of seeing any colored voter voting on the constitutional convention.
Mr. Belvin would frequently ask colored voters would they desire to vote on these.
They said no, or refused. Smith, Belvin, and, I think, Briggs, would hollow, " Read
the law." Mr. Belvin objected to one man getting out the line until he did vote on
the constitutional question.

12th. Question. What part, if any, did Judge Cottrell take in reference to voting
on the constitutional question T Answer. Cottrell frequently asked the same ques-
tion, whether he desired to vote on the constitutional question. Refused and hol-
lowed, "No, the Presidential ticket."

13th. Question. State if you know who distributed or took part in distributing
these constitutional convention tickets. Answer. Mr. Cottrell distributed a good
many, and some of the challengers; who they were I don't know.

LEWIS STEWART page 45 :

Answer to 3rd question. Belvin challenged first voter at polls and then every other
man.

7th question. Smith and others had books of lists of disfranchised voters in Henrico
and Dinwiddie Counties.

8th. Question. State, if you remember, the kind of questions put by these chal-
lengers to the voters. Answer. I don't know how many, but can tell the character
of them. First ask a man who would apply to vote, gray-headed men who looked to
be fifty or sixty years old, they ask him his age, where was he born, how many
children he had; have you ever been out the United States; have you ever been to
the penitentiary, aud many cases I heard them ask them who was their master's
name.

9th. Question. Did you notice any particular conduct when white men would come
up to vote ? Answer. When white men would apply to vote I heard Mr. Belvin and
Mr. Smith tell them have the constitution explained to them, and delayed as much
time as they could with them.

14th. Question. How did Mr. Cottrell act in receiving these ballots and in deposit-
ing them ? Answer. When a voter would apply they would ask him his name and
number, and after the clerks on the inside had found his name and number and hol-
lowed out all right, he would hold that ticket in his hands till Mr. Belvin could look
over his books and tell him all right, let him vote, and then he would ask voters,
" What kind of ticket is that you have got f " The voter would say, " You have no
right to ask me what kind of ticket I have got ; " and then he would ask him, " Do
you want to vote on the constitution T" The voter would say, " No ; deposit my bal-
lot ;" and then say, " Perhaps you don't understand it; 1 will explain it to him."
Mr. Cottrell said this.

Answer to 16th question. Judge Waddill and Allan tried to put a stop to it, but
could not.

Answer to Ibth and 19th questions. Cottrell absent ten minutes and only one vote
cast, as Belvin objected.

Answer to 23rd, 24th, and 25th questions. Allan would expedite finding names and
challengers talked of having him arrested.

Answer to 27th to 30th questions. Police would not, on request, remove crowd from
around the polls. Captain of police snatched scantling from Judge Waddill which
would have prevented crowding.

Page 49, questions 24 5. The crowd of the voters did not delay voting.

Answer to question 55. How Mr. Allan so quickly found the names on book.

Answer to 96th question. Voters asked how many children they had.

Page 54 Re-examination by Judge Waddill :

2nd. Question. In the one hundred and twenty-seventh X.-Q. you were asked as
follows: " If they were told to say, 'for President only,' to avoid that question, then
is it not a fact that Mr. Cottrell did ask that question ? " I now ask yon to explain
why it was that it became necessary that any instruction should have been given-to
the Republican voters as to what they should say in reference to the ticket they
proposed to vote as they presented their ballot to Judge Cottrell.

Answer. Mr. Cottrell would ask every voter that applied to vote what kind of
ticket is that you have, and after being told, would then ask him if he would then

WADDILL VS. WISE. 213

vote on the constitution, and offered to explain it without being asked. Then it was
thought, by the Republicans that it might stop Mr. Cottrell from asking that ques-
tion, provided they were told before they reached the polls what kind of ticket they
had; it did not, however. He continued to ask, notwithstanding he was told, " for
President only."

3rd. Question. You were asked in the one hundred and fourth X.-Q. as fol-
lows : "Are the colored people or not so ignorant as not to know the number of their
houses T" And you say, " There are some colored people, old ones especially, who
have never had the advantages of schooling, who know nothing whatever of num-
bers, and they are more than apt to forget their numbers." I now ask you to explain
whether the character of questions asked by these challengers and the manner in
wnich said challengers conducted themselves were calculated to expedite, aid, and
assist this class of old, ignorant, and infirm voters in casting their ballots, or were
they calculated to mix up said N voters and to delay and kill as much time with them
as possible on account of their ignorance and old age?

(Question objected to because it is leading, and because, while it asks the witness
"to explain," it really asks him to repeat what he has already said.)

Answer. No, sir; they were not calculated to expedite or assist, but, on the con-
trary, they would take advantage of an old, ignorant man by asking him all sorts of
foolish questions.

Answer to 4th cross-question, p. 55: Belvin sent on to United States grand jury.

Answer to 6th and 7th cross-questions : White and colored voted alternately, but
no white votes left out.

WALTER R. LOMAX, p. 59:

5th. Question. State as far as you can why the said vote was not polled or anything
you saw that prevented it. Answer. The judge consumed a lot of time by holding
the ballot in his hand and asking Mr. Belvin if he was ready. Every now and then
Mr. Smith would hollow, "Let us read the law," and they would read the law. Mr.
Belvin would take a considerable time to find a name, notwithstanding the clerk on
the inside had ^ound it. They would never vote a man until Mr. Belvin found his
name on the outside.

6th. Question. State, please, who Messrs. Belvin and Smith are, to whom you have
referred, and what they were doing there that day. Answer. Mr. Belvin was a chal-
lenger, I think. I don't know what Mr. Smith was. I know he was at the polls all
day interfering with the voters. They were Democrats. They seemed to be there to
keep people from voting to keep Republicans from voting.

7th. Question. Was there anything to be voted on or for other than the Presiden-
tial and Congressional election ? And, if so, state whether any time was lost on that
account, and how lost. Answer. A constitutional question. Time was lost on this
account : The judge was distributing these tickets every five or ten minutes to I don't
know whether he handed them out to Mr. Smith or Mr. Belvin but he did not hand
them to colored people. No colored people asked for them. When a white gentle-
man would come up he would get one of those constitutional tickets. Then the judge
would stop and read it to them, and then Mr. Belvin would say to the judge that the
voter don't understand it, and then the judge would explain it to him.

8th. Question. State if you heard Mr. Belvin or Smith say anything to the voters
as they would approach the window as to what they would do in reference to the
constitutional question when offering to vote.

Answer. I heard Mr. Belvin, since I come to think, tell the voters to have that con-
stitutional question read. I didn't hear Mr. Smith say anything. I can't say I did.

9th. Question. What would the voter whom Mr. Belvin thus requested the constitu-
tion TO be explained to do, and what would the judge of the election do ? And tell
all that would then happen. Answer. He would have the ticket read by the judge
of election. The judge would read it. Then, after he would read it, the voter
would tell the judge he didn't understand it, and the judge would then explain it.
This is all I can remember.

14th. Question. Did you hear Mr. Belvin say or do anything when the voter would
explain that he only wanted to vote the one ticket, or when other persons explained
to the Voter that they should only offer to vote the one ticket ? Answer. Mr. Belvin
would object to their saying the Presidential ticket only. I can't say he stopped it,
but he objected.

15th. Question. Did any one, and if so who, request the voters to call for the Presi-
dential ticket only ? Answer. I stated it myself, and several others did the same
thing.

16th. Question. Did Mr. Belviu say anything to you all, and if so what? Answer.
Ho didn't say anything to me, but appealed to the judge. He told the judge it was
not right for any one to tell the voter how he should vote.

17th. Question. Were many persons challenged on the day of election by Mr. Bel-
vin and Mr. Smith ? Answer. Yes, sir.

214 WADDILL, VS. WISE.

18th. Question. What time did yon reach the polls T Answer. I was there before
the polls opened.

Answer to 14th and IHth questions, p. 60 : Belvin objected to this advice to voters.

Answer to 27th question : Belvin continually occupying the window, though often
told to get away.

29th. Question. Did you observe him at all during the day looking in the alpha-
betical list for names, and observe where he seemed to be looking ? Answer. Some
one stopped Mr. Belvin ; he was looking iu one letter for a name in another letter.
Suppose the name began with W, he would look in the letter any other letter
except the one he should look in. Our challenger would tell him where to look ; he
did tell him where to look; then he would look in there and find it. Mr. Belviu
wouldn't tell or allow our challenger to look on his book. Mr. Belvin would kinder
turn himself to the wall.

30th. Question. Was there much time consumed in this and other ways in the
voter depositing his ballot! Answer. Yes, there was a good deal of time consumed,
because the judge wouldn't vote a man until Mr. Belvin would find his name. There
might hare been others, but I can't recall any just now.

Answer to question 3, p. 61 : Belvin advised witness to challenge all Democratic
voters.

CHARLES ROBINSON, p. 63 to 66 :

Answer to 3d, 4th, and 5th questions, and 34th cross-question, p. 66 : Owned
and lived for five years in house from which he tried to vote ; was discharged from
employment because he went to vote, but was not allowed to vote by Belvin. Di-
rectory corroborated his statement. See the following :

3d. Question. Do you mean you have owned and lived in that house for five years
past ? Answer. Yes, sir ; and I have owned the place longer than that.

4th. Question. Were you at your precinct on the election held there on the 6lh of
November last; and if so, did you vote? Answer. Yes, sir ; I got there at half past
six in the morning and stayed there until half-past eleven before I got to the window.
I did not vote.

5th. Question. Tell what happened when you got to the window. Answer. When
I got up to the window Mr. Belvin attacked me then, and said, " Hold on ; dou't vote
him yet," just in that manner. He asked me, " Chas., how old are you?" I told
him I was going on 32 years old. He says, " Have you ever been up before court ;
you ever been convicted of the penitentiary ?" I said, "No, sir,'' and he said, " I've
got you down here disfranchised," and I says, "Oh, no, sir. Let me swear my name
in then." He says, " They got your number down here 1248, and on the book it is
1148. Hold on ; don't vote him yet; " and then he said, " Stand aside." I went homo
to get my number, and brought it back to show it to him. He said, " Stand aside ; I
have got no time to bother with any number now." Then I pitched off down the
depot, and I said now I know I am going to be discharged to-day.

25th. Cross- question. When you returned to the pols with the number did you
take your place again in the rear of the line of voters ? Answer. No, sir ; I went right
up to Mr. Belvin, and he turned and said to me, " Go away from here ; I've got no
time to bother with you." He spoke to me like he was speaking to a hog.

34th. Cross-question. Did you come .back any more that day? Answer. Yes, sir;
after Mr. James discharged me I said to myself, "All right, I will go back and take
the balance of the day at it."

JAMES CHILDRESS page 67 :

7th. Question. State now, as near as you can, what was done by Mr. Belvin and
other challengers, who were present during the day representing the Democratic
party, to delay and hinder the voting. Answer. Mr. Belvin was there with a book
in his hand, and every voter came up he would delay him from voting until he looked
over that book, and would question them all sorts of questions. He would ask old
gray-headed men bow old are you, where you live, have you ever been married, and
would continue to ask different questions until a person had stood there five or six
minutes, and then he would smile and then allow him to be voted. This is in the
early part of the day. Then, in another instance later in the day, Mr. Smith was
there as challenger H. M. Smith, jr., I think. They made it a business, it seemed,
to challenge each one. Mr. Smith would challenge one and then Mr. Belvin. This
applies generally, as far as I could see, while I was at the polls. One instance, a man
came there and didn't have his number right, and they refused to vote him, and he
went away and got his right number and came back, and Mr. Belvin positively re-
fused to vote him, objecting, and the judge refused to vote him. I think that man
was named Geo. Minims. Belvin challenged him and would not allow him to vote,
and I and a good many others in the crowd hollowed out vote him on his oath. They
refused to vote him on his oath. I saw Mr. Smith challenge a man, I don't know his
name, and the man demanded grounds on which he challenged him, and he refused

WADDILL VS. WISE. 215

to give grounds and offered to read the law on the subject, all of which, in my judg-
ment, he was trying to kill time. I also saw good mauy white men walk up to the
voting place, and while doing so several of them would ask they have the law on the
constitutional question read, and the challenger, Mr. Bolviu, in the morning had a
long talk with the judge of election as to the right to have the law read.

Answer to 12th question, p. 68. Not a single illegal voter found arnid all the chal-
lengers.

W. H. L. TILMAN pages 76-7 :

4th. Question. State all you saw there in the conduct of election by the officers of
election, and the length of time required to poll a vote? Answer. I was at the polls
the 6th November at 2 o'clock in the morning. When I fell in line there were thirty-
three men ahead of me ; when I voted it was a quarter to ten. I just could discern I
was moving in the line the space of every ten minutes. A man voted before me by the
name of Leigh Jinkins; his v^ote was challenged by Mr. Preston Bolvin; he said he
lived over the Branch, and said he was charged with petty larceny, and that he was
disfranchised, and Jinkins said he had never been disfranchised, and to sw - ar him 011
his oath and he would stand the consequence ; after he voted he wasn't arrested. A
man by the name of George Dawson, in lino in front of me; he got out of line; he
didn't vote that day till night, at Moore street; he was in line ngain, but the polls
closed on him. My vote wasn't challenged, Another man by the name of A. 6cott;
his name appeared on the register M. Scott; he couldn't vote; he wan fluug out be-
cause his name didn't corroborate with that on the registration -book; the number
was the same.

Answer to 10th question. Cottrell held his ballot for Belvin to search his list and
only voted him when B. could not find his name.

JACOB MALLORY:

5th. Question. Please state what occurred at the polls while you were there in con-
nection with the election. Answer. The first thing I heard Mr. Belviu asked the
voters unnecessary questions. He asked one old gentleman how old he was, and I replied
to the old gectleman to tell him that he was old enough for to vote. I think his name
was Mat. He asked him if he was born in Richmond, and he said he was not, but
was born in the State ; and they asked him was Richmond in the State of Virginia,
and I replied to him that they had no right to ask him that, and that he shouldn't
answer no such question. I think you will find his other name on the book. Then
he also begin to ask questions what they were voting for, whether for President or
constitutional, and good many of the voters didn't understand it, and we went down
the line to instruct the voters to say for President only. Then he instructed all the
white voters to ask the constitutional law to be read to them. Then my reply was
to Mr. Belvin why don't you let them read it yourself, and he replied that none of
these could read, and he requested the judge, Cottrell, Dem., to read it to them, and
he would do so. Just about ten or half past ten o'clock we appeafed to the police
officers, Capt. Epps and others, to keep the crowd back from the voting window. He
replied that he didn't have anything to do with it; and these officers I mean the
marshals I asked them if they couldn't get the crowd back. They said they were
doing all they could, but they were doing nothing but standing there. The way the
window was blocked by these challengers there was about a dozen of them, all Dem-
ocrats the window was about two feet, I suppose, and Mr. Belvin would occupy
exactly half of the window. He was standing with his book open laying in the
window, and after the person would vote it would take at least two or three min-
utes for the voter to get away after casting his ballot, until Mr. Allan and Mr. Wad-
dill came up, and they put a pole Mr. Waddill did for to keep the crowd back ; but
the police officer said he was obstructing the sidewalk and made him remove it. The
voting was getting on pretty fast while the -pole was there. It staid there only about
five minutes, and about five persons, colored, voted in that time. Towards the even-
ing the voter would come up, his name or number would be wrong on the book, and
Mr. Belvin would assist on his staying there and request to vote after knowing that
he wouldn't vote. After knowing that he couldn't vote Mr. Belvin insisted on his
staying there and still ask to vote. He would tell him that he had as much right to
vote as anybody else.

19th. Question. Would or not a great many more votes have been cast if the pole
put up by Mr. Waddill had been, permitted to remain by the police ? Answer. Yes.
sir.

20th. Question. Did it not greatly facilitate the voting, without injury or inconve-
nience to the public generally ? Answer. It was helping the vote on ; it didn't in-
terfere with the public at all.

2lst. Question. Did this judge of election, Cottrell, permit the challengers to ob-
struct the vote as you have stated without objection on their part, or did they do
anything to stop it ? Answer. Didn't do any thing at all to stop it; the judge would
do everything the challenger requested.

21G . WADDJLL VS. WISE.

GEORGE O. CARTER p. 245 :

4th. Question. State whether yon attended your voting precinct at the election
held on the 6th day of November, 1888 ; how long you remained there in line to vote,
and whether or not you succeeded in voting. Answer. Yes, sir; I did attend. I re-
mained there from about 6.30 a. m., and only one or two voted after I voted till
the close of the polls. I did not leave the ranks during the day. I eat my break-
fast and dinner in the line.

6th. Question. What questions were asked you when you were about to vote, and
by whom were they asked? Answer. I was asked if I had ever been in jail. I was
challenged by a person who said he was a challenger.

7th. Question. Were you asked any other questions? And state, if you kuow, the
name of any person who questioned you. -Answer. I was asked if 1 was unfran-
chised ; if I had ever been in the penitentiary. I was asked where I was born at ; if
I had ever been out of the United States; how long I had been in Richmond, where
I came from, when I came to Richmond, and then asked me where I lived, and then how
long I had been living there; where I moved from when 1 came there to live. He
desired to know if I had ever voted before. They told me that it was a Mr. Beverly
or Mr. Belvin.

8th. Question. You say you arrived at the polls at half past 6 o'clock a. m., and
did not vote until just before the close of the polls. Did you in all that time break
your place in the line or allow any one to go up ahead of you? Answer. No, sir; I
did not.

9th. Question. When you were about to vote was there any pushing or shoving ;
and. if so, what was the cause of it? Answer. Yes, sir; a plenty of it. There were
about twenty-five or thirty white people pushing to keep the colored people from
getting to the window.

H. M. SMITH p. 1152-61 : Conteatee's witnesses.

25th. Question. It has also been testified that you and Mr. Belvin not only
asked the unnecessary questions I have alluded to, but you were heard to instruct
Mr. Belvin to ask the voters whether they were sick; state whether you did so, and,
if so, why ? Answer. That was in consequence of an astute political job put up on us
by Capt. Ben Scott, a Republican. About the middle of the day Capt. Scott came
to me and said that there was a poor old sick man back there in the line, who could
hardly stand up, and asked me, as an act of mercy, that he might come up out of his
turn and vote on the white man's side of the window. I readily and cheerfully agreed
to it and the man was voted ; from the success of this effort, I presume, the amount
of sickness in the crowd became appalling, so much so that after four or five of them
had voted out of their turn on our side of the window, with our consent, I dropped
back into the crowd to reconnoiter, and I heard a colored man say, in reference to a
sick mau who was going up to vote, " that man ain't no sicker than I is," which con-
firmed my own* suspicions that we were being taken advantage of, and I called to
Belvin to ask him if he was sick, and after that the sick men disappeared.

43d. Cross-question. Did you not sympathize with and encourage pretty
much everything you saw done at the polls on that day which in your judgment
tended to lessen the Republican vote at that precinct? Answer. I went out there to
assist in preventing any illegal votes from being cast. I tried to do my duty, and
did not study the consequences. I would not have cared, to be frank, how small the
Republican majority was, but my sole end, aim, and object was to prevent illegal
votes from being cast.

51st. Cross-question. I heard some Democrats urged to vote on constitutional
question.

JAS. E. MERRIWEATHKR p. 133:

5th question. Window crowded with 25 or 50 challengers and policemen.

6th and 7th questions. Old. men of 60 questioned as to age, etc., and nearly all
challenged.

W. H. MULLEN p. 136 and exhibit p. 1625 :

4th. Question. Look at the paper, please, yon have filed with your last answer, and
give us the names of the voters by precinct, and state the length of time it took to
vote them and whether they are white or colored. Answer. At the 2d precinct Brax-
ton Hill, colored, voted in three minutes ; at the same precinct Montrose Angle, white,
voted in half a minute ; at the same precinct Edward Jordan, colored, three minutes ;
William James, colored, three minutes. At the third precinct William Hopes, colored,
voted in three minutes ; Henry O'Neal, white, voted in half a miuute; R. H. Baylor,
colored, voted in three and a half minutes. The grounds stated for questioning this
voter, the challenger said, was that a real estate agent standing behind him said this
voter had moved, which the voter denied. At the third pveciuct John Johnson, col'd,
voted in three minutes ; Daniel Henderson, colored, was questioned for four minutes ;
Robert Brown, colored, voted in two minutes ; Benjamin Jackson, colored, voted in
three minutes.

WADDILL VS. WISE. 217

JOHN W. GRAVES p. 138.

3d. Question. State, please, anylhiug that happened at the preciuct when you
were there to vote, as to the polling of the vote and other circumstances ; and, if so,
what did happen ? Answer. Well, it was between one and two o'clock when I voted.
I was in line with my ballot in nay hand ; some gentleman, I don't who he was, sta-
tioned just behind the challenger, and acting in the capacity of -assistant, leaned
over and whispered to me, "Delay them all you can." I turned to him and
asked him what he said, when he repeatad the remark and added, " When the judge
questions you in regard to the constitutional amendments, ask him what it means
and what it is for and all about it." I paid no attention to him, however, but voted.
After I had voted I remained long enough, possibly fonr or five minutes, to see the
next man vote. It happened to be a bright mulatto, apparently about 35 years of
age. When his name was called the challenger promptly challenged him, and com-
menced to question him. One of\ the first questions asked of him was his age; he
also asked him how long he had been a registered voter, and other questions as re-
gards his right to vote. Finally some one inside of the precinct said, " Why, that
man has been voting here for ten years." The judges then spoke and said, "He is
all right." The man was questioned no further, but allowed to vote. It look pos-
sibly three minutes to vote him. I then left the door or +he window of the precinct,
and, after glancing at a long line of voters, returned to my work.

7th question. You have spoken of what this assistant challenger, as you term him,
said to you. Did the challenger himself state or do anything; and, if so, what?
Answer. The only thing that the challenger said that I can remember was when my
name was called the gentleman whom I have spoken, of as assistant challenger mis-
took my name for Gray, and said, "What is that, Gray?" I turned and said, "No,
Graves." The challenger then cautioned him to remain quiet or rather said to him,
"Hush, he is all right," or words to that effect.

8th question. How many persons were there in the white line when you voted?
Answer. I don't think there was but one besides myself in the line.

9th question. Was there more than one line at this precinct I mean was there a
white and a colored line ? Answer. Yes, sir.

10th question. How did they vote from these lines? Answer. One white and one
colored, alternately.

JACKSON AKERS, or ACRES p. 173:

6th question. What was'the conduct of the judges of election and challengers for
the Democratic party in connection with the receiving of the ballots during the day?
Answer. Well, the conduct of the challengers, I think, was very bad. Mr. Guigou
challenged nearly every other vote whilst he was there. A good deal of time was lost
by the judge asking and explaining questions on the amendment to the constitution.

7th question. How did the judges delay the election in reference to the constitu-
tional amendments? Answer. That was done generally by white men corning to
vote. It delayed it this way : When a white man would come to vote, then the judge
would delay time by telling him which line to strike out if he was opposed to the
amendment or which to strike out if he was in favor of it.

8th question. What did the challengers do, and who were they, at any time during
the day? Answer. The challengers had the disfranchisement list. They challenged
very near every other man who came to vote. The voter was charged with being dis-
franchised. Good many of them was put on their oath and voted, but some they
didn't let vote at all. They took ten to fifteen minutes on most of them. I don't
know but one, that is Mr. Guigon.

JNO. H. CAMPBELL p. 178 :

2nd. Question. Mr. Meredith objected to Cunningham acting as Republican chal-
lenger; one challenge delayed seven or eight minutes; challenged about six out of
ten ; took pride in explaining constitutional vote ; long line of voters late in the
evening, waiting to vote, and the same tactics were pursued, Judge Waddill using
all his efforts to get in the vote quietly and peacefully } " we delayed the election
about ten minutes, and that was better than his vote." .

BENJ. JACKSON p. 185 :

6th question. What was the conduct of these challengers when they were there?
State what they did in connection with the voting. Answer. From the time the polls
were opened until they closed at night nearly every colored voter was challenged.
When they came to the polls to vote they would give their names, and if their name
was found on the poll-book, and if the parties holding the poll-book would say it was
all right, the challenger would say, "Hold on, judge. I challenge that vote." After
looking over the disfranchised list they would say, "All right; go on." All this time
the judge of election would be holding the ballot in his hands, and he never deposited
any ballot until the challengers were satisfied. I would state that I was challenged

218 WADDILL VS. WISE.

myself by Mr. Skelton on the ground that I gave the wrong age. I voted on my oath,
and this took about five minutes' time. I have lived in the precinct about fifteen
years, pay taxes on about three thousand dollars' worth of property. Allen Ciesar's
vote was also challenged ; they say his name could not be found on the poW-book, and
he did not vote. A. P. Quarls' vote was also challenged on account of his not giving
the right, ago, I think ; he did not vote at all. There was another man by the name
of Braxion; his vote was also challenged and he was not allowed to vote on account
of not giving the right, number. A great deal of time was also taken up or.lost by
the police forcing the lines back, and before we could get the men regularly in line
again to vote, we would lose probably five or ten minutes. There was also a great
deal of time lost in explaining to each colored voter as he came up to vote whether
he wanted to vote for or against the convention. The judge of election would say to
each voter, "Every twenty years we have to vote for constitutional convention; this
convention is to make any amendments to the constitution of the State of Virginia.
If you want to vote for the convention you will mark out this bottom line, and if you
don't want to vote for it you will mark out the top one." This question was put to
each voter as they come by the judge of election. I think this is about all that I
recollect.

J. E. FARRAR (ex-councilman), p. 193:

b'th. Question. State if you saw anything remarkable about the conducting of the
election on that day. Answer. Well, on my first visit I went there as I had usually
gone, about the middle of the day, to vote, as they have usually gotten through with
the rush of voters by that time, and usually there is no difficulty in a man voting
after that hour at that precinct. I noticed when I arrived there that there were an
unusual long line of voters waiting to vote. Then I went up to the voting window
where they were voting and found a number of gentlemen which I had not usually
seen at that precinct, and Mr. C. V. Meredith was arguing a point of law and insist-
ing on the judge to give his decision whether a voter should tell what was his age
when he registered or his exact age when he come up to vote. I asked him what was
the matter; why were they voting so slow ? Restated that he only wanted to know
whether the persons voting there were legal voters, and wanted the judge to decide
the question whether a man should tell his age when he registered or his exact age
when he came to vote. I stated to him then that I wondered if he or the judge
either entertained any doubt in regard to the person then at the window endeavor-
ing to vote, as any one could see from his appearance that he was then over 50 years
of age about as gray as 1 am.

7th. Question. How long a time was occupied in voting one man while you were
there? Answer. I think about eight or ten minutes.

8th. Question. Did any policeman interfere with you during this colloquy with Mr.
Meredith ? Answer. When I approached the window I were attacked by a police-
man ; he asked me was I challenger there that day, or who did I wish to see; I
stated to him that I wished to vote, and to know why the voting was being con-
ducted so slow ; that he need not bother about me, that I was for peace and business,
and then passed on. He said nothing more.

9th. Question. About how many colored men were in line waiting to vote when
you got there? Answer. As near as I can judge I reckon about 1% or 150.

10th. Question. Had there ever been any trouble in getting in the whole vote at
that precinct at any previous election? Answer. Not to my knowledge.

13th. Question. You say that you have been voting at that precinct for fifteen
years, and that you own three thousand dollars' worth of property in that precinct.
Have you ever had any trouble in voting there before, and has there ever been any
difficulty in polling the full vote at precinct at any previous election ? Auswer. No,
sir ; I never had any trouble in voting there before. We have never had any trouble
before ; we generally manage to poll the full vote by 4 o'clock.

14th. Question. About how many people were at the precinct when you got there
in the morning, and were they in line ? Answer. Near about 200, and they were all
in line.

.GEORGE A. CUNNINGHAM p. 189-90:

After remaining at the Third for a while and witnessing the slow voting, the judge
at that precinct seemed to me to take lots of time and great interest in listening to
all questions raised by the challengers. When they raised any objection he would
hold the ballot, listen to all of them before depositing it, which consumed from
three to ten minutes with each one. He took great interest in wanting to read and
reading the constitutional act which was raised out there. I saw a voter being re-
fused to vote by the objection of one of the challengers. This colored man came to
vote, but was refused on the ground that he had his number on a piece of paper,
and refused to give it verbally.

WADDILL VS. WISE. 219

A. II. KAUFMAN (candidate for house of delegates) p. 210 :

Part answer to sixth question. I drove to the third precinct, and got there just as
a man by the name of George Jackson was about to cast his ballot. 1 found consider-
able delay occasioned by one of the judges .of election at that precinct voluntarily
explaining to the voter the law bearing upon the vote for a call for a convention.
He explained that law to that particular voter three times successively, consuming
sufficient time to have voted three or four voters in an ordinary manner. I was right
behind the voter, and knowing him personally I knew he was fully competent to cast
his vote without the aforesaid explanation. I could not help, from the circumstances,
to become aware that the judge of election had au understanding with the chal-
1 lengers at the polls in making this explanation so repeatedly for the purpose of delay
and consumption of time. I remarked to the voter, the aforesaid Mr. Jackson, that
he seemed to be very hard of understanding to-day, knowing him to be as intelligent
as he was. He finally voted and went away, after consuming between six and eight
minutes of time. The next voter that presented himself, a colored man, was chal-
lenged by two or three challengers. I do not know the* merits of the challenging,
but I saw conclusivsly that all of it was done for the purpose of delay, intimidation,
and consumption of time. While this was going on a question arose between the
Republican United States supervisor and some of the challengers as to their respect-
ive rights, when Colonel Tazewell Ellett came up flourishing a paper and stated in a
loud voice calculated to inspire with awe any timid voter, that he had just come from
the office of the secretary of the commonwealth and held the law from him; that
they (the Democratic challengers) could have the United States supervisor arrested.
This declaration on the part of Colonel Ellett caused considerable excitement at the
polls, and consumed a gi - eat deal of time.

DAN'L HENDERSON p. 221 :

2nd to 5th question. Owns twelve houses, six of them in Jackson ward; resided
there twelve years ; identified by the judges, but challenge insisted on and he had to
take the oath before voting.

CHARLES FRAYSER p. 588 :

10th. Question. Why did you not vote your ballot at the regular polls? How near
to the ballot-box did you get to the. regular polls, and why were you not allowed
to vote there ? Answer. I was challenged there for some cause or another, 1 don't
know what. I got right up to it, and handed my ballot in, and when they called
my name a gentleman challenged my vote, and then they asked me if that was all my
name, and I told them yes, except when I was a child the children used to call me
Charles Henry Fraysier. The gentlemen then said I had no right to vote as my name
was on the book Charles Fraysier ; and then the polls closed before I got away.

llth. Question. What length of time passed from the time you got to the ballot-
box and offered your ballot to vote and the time the polls closed? Answer. As near
as I can come at it at must have been not less than ten minutes.

THOMAS H. BRIGGS :

29th. Cross-question. Please state some of the questions usually asked a voter by
the challengers. Answer. Asked them their names ; where do you say you live ;
what is your number; did you say 1714? No, sir ; I said 1417. "Ever been to jail;
wasn't you arrested for stealing last year ; what did you say your name was, John
Robertson; how you spell it? Robtson. Did you say Robsou? No, sir. Well,
didn't you used to live at number 506 ? No, sir. Well, here's another man the same
name, I think that must be you. And all sorts such questions as that they would
ask; more so on that day than I have ever known.

I. W. CARTER (councilman) p. 170:

3d. Question. State, please, anything that you saw or that happened at the said
precinct on the said day, if anything did happen, by which the vote of said precinct
was not, polled. Answer. I was at the door, and the voters came to a halt, and I
happened to look tn there to see what was the matter, and I went on inside and I saw
Mr. Kolbe, I think, a supervisor, and a man was there who wanted to vote. He
asked him his name, and he told him. He asked him his age, and he told him.
His residence, and he told him ; and then he asked him was he married, he answered
yes ; and then he asked did he have any children, and he said yes ; then he asked
him how many, and he told him ; then he asked him how old was the oldest, and he
told him ; then he asked him how old was the youngest, and he told him, At this
point I interfered with the question as to the age of the children. Then he stopped
then and had some words with me about it, and said he could do as he pleased ; that
I had nothing to do with it. Then I gave up, and the man went on answering his
unnecessary questions. I went out and stood at the door. About ten minutes was
consumed with that one man. This man was the one they had the most trouble
with. This was a well man, but sick did come during the day, and I asked the

220 WADDILL VS. WISE.

policeman to admit them, as was the custom, and the policeman said he would uto
admit them unless somebody would give way in the ranks. So I said to him, you
had as well try to move a brick house as to try to move a man out of ranks, and he
said, well, if he was sick let him go home and go to bed; that that was the best
place for him. All these things would delay the voting for about ten minutes for one
man to vote. That is about all.

Question 15. Gentry would look through all the J's before allowing a man named
John to vote, and would pay no attention to voter's finding his own name.

JACOB CROSS p. 181:

Question 6, p. 182. Gentry would find name John Smith, a voter, with right num-
ber, age, and all, but would not allow him to vote until he had looked entirely through
the list of Smiths. * * * One Morracco Smith also offered to vote ; I found name
and informed Gentry of it ; he said itwas noneof my business, stand back, and would
not allow him to vote until he had looked entirely through the S's. * * * Gentry
had to have his attention called two or three times to voters offering to vote before you
could make him liear. He was leaning on the book, which was open a part of the time,
and then in conversation with the other challengers during the day.

Question 7. Kolbe was the Democratic supervisor. Asked man how long he had
been married, how many children he had, etc. Thinks Kolbe was under the influ-
ence of liquor.

FitkNcis E. BURKK p. 183 :

Questions 3 and 5. Was ticket-holder for Republicans. * * * Voted more votes
in the morning.

Question 9. Would have polled the vote if white and colored had been treated
alike.

10th. Cross-question. Was that practice kept up until all the white men had
voted? Answer. Yes, sir.

llth. Cross-question. After the polls closed was there any general proclamation
made by the United States commissioner, or any one else, so that all voters could
hear, that all oarties who had not voted would be allowed to do so before him at
some particular place named within the limits of the precinct? Answer. Yes, sir; I
heard Judge Waddill tell them all to stay in line; that were all going to be voted by
the United States commissioner.

12th. Cross-question. Who did Judge Waddill tell this to ? Answer. He was not
telling it to anybody particular, but telling them all along the line. He told me to
help to keep them in line; that he had a United States commissioner there and he
was going to vote every one of them.

Governor JAMES H. HARVEY (ex-member legislature of Kansas, State senator, ex-
United States Senator, and ex-governor of that State), p. 195:

Question 4, p. 195. Men in line had tickets in hand and complained about not being
able to vote. The voting seemed to me to be exceedingly slowr * Could not
get in the voting-room, but looked through window, and it seemed as if there were
a great many questions being asked, and the man that I saw vote had to stand in front
of the ballot-box a long time before he was permitted to vote. I saw a number of
deputy United States marshals in the neighborhood of the polls and some policemen.

10th. Question. I heard at the polls a great many say the voting was purposely de-
layed in order to hinder the colored voters from casting their ballots.

26th. Cross-question. Were the men whom you heard say the voting was purposely
delayed in order to hinder the colored voters from casting their ballots white men or
colored men, Republicans or Democrats? Answer. Some white men and some colored
men. Some of them were Republicans, and some, 1 think, were Democrats, because
they attempted to justify it.

JAMES A. DUFFY (was Republican challenger) p. 204:

7th. Question. Why were they voted slower in the afternoon or evening ? Answer.
Well, by little after 11 o'clock Mr. Randolph came down there and had a consultation
with the Democratic judge) Gentry, and then Mr. Purcell; he came down there with
a book, he said, with proper oath in it to administer to the voters who were sworn.
He gave it to the judge and told him that that was the proper oath to administer to
a party wh' had been sworn. The Democratic supervisor he came around and asked
the voters the same questions the challengers had just asked. First one and then
another of the challengers would question a man about his ge, residence, and last
place he voted, if he had ever been convicted of petit larceny, if he had ever been in
jail, how long he had been in the city, didn't he vote in the county, didn't he move
from the county to the city. After the challengers got through with a man the
supervisor then would go over the saire qucstio JB. They had two men arrested in the
evening on account of numbers of their residence being wrongon the registration-books.
These men were delayed some time at the box, and were then sent to get their right

WADDILL VS. WISE. 221

number; then after they come back they was challenged again. They were sworn
then and voted. Then the Democratic supervisor ordered their arrest.

llth. Question. Which judge of election had charge of the colored book, aud what
was his conduct? Answer. Mr. William Gentry. When a man came in and gave his
name, he would find his name on the book, and then would look all over the book to
see if he could find another name similar to the man that was standing there before
he would vote him. He would close the book after a voter had voted, aud when the
next voter would come in he would have to open the book and look for the place
again. When I would tell him the number where he would find the man's name, he
would tell me that he was attending to that book, aud to attend to my own business.
Several times while the book was closed his attention would have to be called to a
voter standing waiting to vote.

A. H. KAUFMAN p. 210 :

Question 6. I then drove down to the Fourth precinct in Jackson Ward, and when
I arrived there I saw a large string of voters, all colored, on the sidewalk approaching
the polling-place. ID front of the line at the door of the said polling-place was a tall
policeman with his club stretched perpendicular across the man's breast who was in
front of the line, not allowing him or any one in the line to move either one way or
the other towards the polling-place, keeping the voter entirely ignorant as to when
his next turn would come, which in itself was calculated to make impatient voters
leave their position in line. I saw no line of white men, and hence realize no good
reason why these colored voters should be held back in that manner. I went into the
room where the voting was done, and just as I came in a colored man who it seems
had been sent out with a policeman to verify the number of his residence about which
there had been some controversy between the voter and the Democratic United States
supervisor, the question involved being the difference of a number or two from that
which was on the registration-books. After informing myself of the above
facts I requested the judge of election to swear the voter, which would entitle him
to vote. He did so, and the man was voted, after which the Democratic United States
supervisor ca^ed in a marshal and ordered the arrest of that voter, who was carried
oft' to jail. I asked the supervisor, who at that time was standing upon a box behind
one of the judges of the election, who had charge of the ballot-box and seemed to take
entire control of the polling-place, why he had that man arrested. He answered me,
he knew his business. I reiterated that he was drunk, and ought to have been ar-
rested himself. Mr. James C. Smith, who was present, told me then that he had been
acting that way the whole evening, and that he ought to have a warrant sworn out
against him. I reiterated that I was going to swear out a warrant for the Democratic
supervisor, whereupon the said Democratic supervisor said to rne, "Go and have me
arrested; my name is Henry Kolbe." The entire deportment of the aforesaid super-
visor was dictatorial and calculated to impress with fear any timid voter that would
present himself. The scene above described in itself caused along delay in consuming
a great deal of time. I was very much incensed at the deportment and actions of the
Democratic challengers and supervisors in taking the advantage of having a large
majority at this polling-place, which in itself was calculated to hinder aud delay the
voting, so much so that I left there to go to the United States commissioner and
swear out a warrant against the said Henry Kolbe, but was advised not to do so, as
such a course would have necessitated the closing of that precinct.

JAMES C. SMITH (ex city sergeant, councilman, etc.), p. 236:

Question 11. They would ask a colored man if he wanted to vote on the constitu-
tional amendment. After the colored man declined to vote on the amendment Mr.
Finnerty would thdn read it over to him slow. In one instance a man came in by
the name of Harris, about 50 years old. He was asked if he was 21 by challenger,
Mr. Grymes, what year he was born in, where his mother lived, and if the last freshet
had washed the dung off his house. The objection was made to this man's voting on
accouut of his residence; the judges sent some men with him to see if he lived where
he said he lived. They came back aud reported to the judges that it was all right.
There was some question then about his voting, and this supervisor, Kolbe, said he
be damned to hell if he should vote, and said he would sit on the ballot-box first.
I remarked to Kolbe that he was drunk and not fit to be there. He said it ws none
of my business, called in a policeman, and told him to arrest the nigger and lock him
up. I told him it was a shame; that a drunken loafer like him ought to be locked
up instead of the nigger. Then he took out his bottle and took another drink. He
said, "I would like to see you have me arrested." When a colored man would come ,
in I would get his name; I would go to a copy of the registration-books which wo
had there in the room ; I would go the judge and point out the same number that
corresponded with the man's name on their book. The judge, Mr. Gentry, in a
friendly manner, said, <l Mr. Smith, I am keeping these books," and would go up and
down over the names on the books. I made the remark to him, what was the use in

222 WADDILL VS. WISE.

going all over the names when I had just pointed out the name to him. He remarked
that he wanted to see if there was any more on the books, and to see if the man's
name corresponded with his residence as he gave it in.

JOHN J. REILKY (Republican supervisor) p. 148:

Questions 3 and 4. Reached polls before sunrise, and there seemed between two and
three hundred voters in line.
Questiou 6, p. 149. This line was kept up during the day.

The voters were divided into two lines, white and colored, and the
great majority of the voters were colored.

The colored voters and white voters took equal turns in voting. The
. white voters resident in the first precinct were 132 and colored 883 j
third precinct, white voters, 254, colored, 797 ; fourth precinct, white
voters, 392, colored, 692. See record, 1635. By voting alternately the
white voters were all enabled to cast their votes, leaving the excluded
voters at the rear end of the long colored line. IS'o clearer illustration
of the situation could be given than the statement made by coi testee's
witness, H. M. Smith, above quoted, that some of the colored men,
under pretence of sickness, got into the white line, and were there
permitted to vote, whereupon he says the " amount of sickness in the
crowd became appalling." But this ruse of the colored men to secure an
opportunity to vote was stopped after a few votes were thus permitted.
But when the polls closed these obstructive tactics had been successful
in preventing the casting of enough Kepublican votes to give a majority
of 261 to the Democratic contestee.

It has been held in New York, Alabama, and California that a vote
lawfully tendered and not received should not be counted, but if the re-
sult was changed thereby that a new election should be ordered. (See
State vs. Judge, 13 Ala., 805 ; Hartt vs. Harvey, 19 Howard's Practice,
N. Y., 245 ; Webster vs. Byrnes, 34 Cal., 273.)

But this rule we think is not founded in reason and is against the
weight of authority. It was seemingly though not directly sanctioned
in the Nineteenth Congress in case of Biddle vs. Wing, Clarke and Hall,
504.

The Revised Statutes of the United States, section 2007, provides :

That whenever, by or under the authority of the constitution or laws of any State
or the laws of any Territory, any act is, or shall be, required to be done by any citi-
zen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to
perform the act required to be done as aforesaid shall, if it fail to be carried into ex-
ecution by reason of the wrongful act or omission of the person or officer charged
with the duty of receiving or permitting such performance or offer to perform or act-
ing thereon, be deemed and held as a performance in law of such act, and the person
so offering and failing as aforesaid, and being otherwise qualified, shnll be entitled to
vote in the same manner and to the same extent as if he had performed such act.

The oft'er to perform the prerequisites to the right to vote is by this
statute made equivalent to a performance of the act itself, where the
wrongful act or omission of an officer prevents carrying such offer into
execution.

This carries the doctrine of tender back one step further, and makes
a tender of registration or other prerequisite sufficient to entitle the citi-
zen to the right to vote. The doctrine that such votes should be counted
is strengthened by this statute.

If the voter, in the language of the statute, " shall be entitled to vote,"
the right would be a very barren one if the vote tendered and refused
could not be counted.

So far as Congressional elections are concerned, the offer by a voter otherwise legally
qualified to perform any act which is a prerequisite to voting will be in law a per-
formance of the act. (Paine on Elections, p. 519.)

WADDILL VS. WISE. 223

This House has uniformly, since the Nineteenth Congress, recognized
the rule that a legal vote lawfully tendered and unlawfully rejected shall
be counted and given the same force and effect as it actually cast.

Whatever the rnle may be in any of the States 01 the Union this prin-
ciple is well settled as a rule of Congress.

The present Congress has recognized and followed the same doctrine,
and the majority and minority reports of the committees in Atkinson vs.
Pendleton both expressly recognize this rule of law.

See also the cases of Smith vs. Jackson, Mudd vs. Compton, and
Featherstone vs. Gate, Fifty-first Congress.

As to the duty of Congress to count all votes legally offered and un-
lawfully rejected, see Sessinghaus vs. Frost (2 Ellsworth, 380) ; Frost
vs. Metcali' (1 Ellsworth, 289); Bisbee vs. Fmley (2 Ellsworth, 172);
Covode vs. Foster (2 Bartlett, 600, Oil ) ; Taylor vs. Beading (2 Bartlett,
661) ; Porterfield vs. McCoy (Clarke and Hall, 207) ; Buchanan vs. Man-
ning (2 Ellsworth, 28^) ; Bell vs. Stiyder (Smith, 247.)

The same rule prevails in England (Heywood, 5 ed., 500).

It is now an established rule of the House of Representatives of the United States
that a vote duly offered and unlawfully rejected, at the polls, will be counted in a
contest (Paine on Elections, Sec. 517.)

When a legal voter offers to vote for a particular candidate and uses due diligence
in endeavoring to do so, and is prevented by fraud, violence, or intimidation from
depositing his ballot, his vote should be counted. (Niblack vs. Walls, 42 Cong., 104;
Smith, 101.)

In Sessinghaus v. Frost (2 Ellsworth, 380), decided in 1883, votes
offered but not cast were counted in the Forty-seventh Congress.
In Yeatea v. Martin, decided in 1881, the same rule is stated :

The soundnessof this rule is indisputable ; otherwise the door is open for unmeas-
ured frauds. Suppose, for instance, in a heated election, one party should by acci-
dent be prevented from polling its heavy vote until late in the afternoon, how easy
would it be for a partisan board of managers to defeat a man who otherwise would
be the choice of the people. And, again, by delaying to open the polls at the time
fixed by law in the forenoon of election day, and by delaying for three or four hours,
and systematically challenging the voters, and consuming as much time as possible
with each voter, it would be easy to procrastinate, so the hour of closing the polls
should arrive and a large vote remain unpolled. (Ellsworth, Digest Election Cases 45
and 46 Congress, pp. 386-7. See, also, Bisbee vs. Fiulay, Digest Election Cases 47
Congress, pp. 173-174, and views of the minority, p. 227.)

The same rule was laid down in Frost v. Metcalf in 1879, and the
following is the language of the committee's report :

If contestant had proved that any man's vote was rejected by reason of his name
not being on the poll-books, whose name was on the registration lists, and that his
vote was offered by him and not counted, then he is entitled to the benefit of it.
(P. 290.)

In Bradley v. Slemons, decided in 1880, the committee say :

We concede there may be circumstances under which a legal voter being deprived
of the privilege of casting his ballot, it may nevertheless be counted, and (quoting
from Judge McCrary) " to require each voter belonging to a class of excluded voters
to go through the form of presenting his ballot, and having a separate ruling in each
case, would be an idle and useless formality." (Digest Election Cases, 1876 to 1880,
p. 312.)

In this case, however, the votes claimed were not counted, because
no fraud, intimidation, or other misconduct was alleged or proven.

Indeed we do not understand that any of the committee question the
rule laid down in this report that a lawful vote properly tendered and
unlawfully excluded may be counted, and that the remedy in such a
case is not to set aside the election.

But it is claimed by a minority of the committee that under the facts

224 WADDILL VS. WISE.

of the present case there has been no such an oft'er to vote on the part
of the several hundred voters as would entitle them to have their votes
counted. This brings us to the discussion of what constitutes a tender
or offer to vote.

It is eminently proper in approaching the polls where there are a
large number of voters that the voters should form a line and take
their orderly turns in voting. To prevent any race troubles it is not
unusual in many places to form two lines, one white and one colored,
approaching the polls in their order and casting their ballots in regu-
lar turns or rotation.

Is the ability to reach the window and actually tender the ticket to
the judges essential in all cases to constitute a good offer to vote *? A
voter, who is at the polling place in due time, and has taken his place
in the line, ticket in hand, offering to vote, and by the wrong of the
iudges is prevented from reaching the window, surely has as much right
on principle to have his vote counted as the voter who happen^ to be
further up in the line and actually reaches the window and is there
refused.

From the time the voter reaches the voting place and takes his posi-
tion in line to secure his orderly turn in voting the elector has com-
menced the act of voting. It is a continuous act, and if by the wrong-
ful act of fraudulent challenges unduly prolonged by the connivance
and collusion of the judges of the election the voter is deprived of the
opportunity to vote we think that the interest of our form of govern-
ment and the purity of elections demand that the vote should be
counted. If the fraudulent exclusion of votes would, if successful,
secure to the party of the wrong-doer a temporary seat in Congress,
and the only penalty for detection in the wrong would be merely a new
election, giving another chance for the exercise of similar tactics, such
practices would be at a great premium and an election indefinitely
prevented. But if where such acts are done the votes are counted upon
clear proof aliunde, the wrong is at once corrected in this House and no
encouragement is given to such dangerous and disgraceful methods.
Where an illegal vote is tendered and cast it is universally conceded
that it should be excluded in a contest, and the result declared the
same as if such vote had not been cast.

It is clear upon principle that where a legal vote is offered and ex-
cluded it should be counted upon furnishing proof as satisfactory as
that upon which an unlawful vote is eliminated from the count. There
is no more difficulty or uncertainty in the proof in the one case than in
the other. We are not disposed in the present case to treat the deposit
of the votes in the box of the United States commissioners as a cast-
ing of the ballots. But such fact is strong corroborating evidence
and is entitled to weight in determining the purpose of the voters, and
is further of value in preserving the ballots which the voters say they
actually intended to have cast. These ballots were at once deposited
in a safe receptacle and preserved until they were delivered into the
custody of the House. Over four hundred of the voters testify to the
deposit of these ballots, and that they were the same ballots which
they were prevented from casting.

If a number of persons desirous of making a tender of money at a
bank should form in line during banking hours, with their money in
hand, and the officers of the bank should purposely delay the transac-
tion of business in such a way as to prevent a large number of the per-
sons desiring to make the tender from reaching the receiving teller's
window during banking hours, there would be no question, we appre-

WADDILL Va WISE. 225

heud, but that this would be a good tender of money. lu the present
instance the voters in depositing their tickets in a separate box in the
custody of a United States commissioner were attempting to carry the
analogy further by making their tender good.

The voter who was standing at the window, ticket in hand, and offer-
ing it at sundown when the window was closed in his face, had done no
more to have his vote cast than the next man in the line or the other
voters standing ready to the extreme rear of jthe line. They were all
doing their best to exercise their constitutional rights.

It is the duty of the judges to afford every reasonable facility to the
voters in casting their ballots. We think that all these votes were ten-
dered or offered within the lair and reasonable meaning of the law and
that they should be counted, and that the a'ction of the judges in delay-
ing the election was equivalent in law to a refusal to receive the ballots.

We therefore recommend the passage of the following resolution :

Resolved, That George D. Wise was not elected as a member of the
Fifty-first Congress from the Third district of Virginia, and is not en-
titled to a seat therein.

Resolved, That Edmund Waddill, jr., was elected as a member of
Congress from the Third district of Virginia and is entitled to a seat
therein.

H. Mis. 137 15

VIEWS OF THE MINORITY.

(1) Tender. What necessary.

"To hold that anything short of an actual tender of the ballot to the
election of officers and a rejection by them was an offer to vote, would
be a most dangerous and uncertain rule and one to which we can not
give our sanction. Where the evidence plainly establishes the fact that
a legal voter offers his ballot to the election officers and they unlawfully
reject the same, under the precedents heretofore established such vote
may be counted for the candidate for whom the voter offered to vote."

(2) Votes. Not cast through lack of time.

If all that is claimed by the contestant be conceded for the sake of
argument, still the votes in question can not be counted, there having
been no actual tender and rejection ; " they have not been offered and
rejected, and the most that can be claimed under this assumed state of
facts is that there has been no fair and full election within the meaning
of the law, and that neither party shall be adjudged entitled to the seat."

But the minority insist that the delay in voting was not caused by the
partisans of contestee or the collusion of the judges, and " under such a
state of facts, the courts determine the result by the vote actually cast.
The enforcement of that rule in this case would give the seat to the sit-
ting member.

" But we are not satisfied of the justice of such rule * * but are
of the opinion that the ends of justice will be subserved by remitting
the election to the people of the district."

227

VIEWS OF THE MINORITY.

APRIL 5, 1890. Mr. CRISP, from the Committee on Elections, submit-
ted the following as the views of the minority:

The contestant in his notice of contest charged intimidation upon
the part of the partisans of the contestee at the polls and by the Demo-
cratic employers of the colored voters. He also charged that many
illegal votes had been cast for the contestee.

In the argument of his counsel before the committee all these charges
were abandoned, and in the report of the majority of this committee no
reference whatever is made to them.

We can, therefore, dismiss them with the simple remark that the
proof utterly failed to sustain them, but on the contrary the evidence
discloses the fact that the election was quiet and orderly, and that
Democratic employers allowed their colored employes every opportu-
nity to vote, in many instances giving them the entire day of the elec-
tion without " docking " them in their wages.

The vote returned for the parties to this contest, and upon which the
certificate of election was issued to the sitting member, was as follows :

George D.
Wise.

Edmund
Waddill.jr.

Chesterfield County

1,567

1, 586

Goochland ..

671

988

Hanover

1,640

1,565

Henrico

1,088

2,340

Kin" William

739

1 099

New Kent

3tio

705

Manchester City

'892

740

KichmoudCity ......

8,040

6 324

Total

15,608

15, 347

Showing a majority of 261 votes for George D. Wise, the sitting
member.

It is admitted that the returns were all regularaud that the certificate
of election was properly issued to the sitting member, Mr. Wise.

The majority of the Committee on Elections insist, however, that
there was a conspiracy upon the part of the Democratic managers and
the Democratic judges of election to carry the election for Mr. Wise
by the suppression of legal colored Republican votes, and that in
furtherance of this conspiracy Democratic challengers were present at
the first, third, and fourth precincts of Jackson ward in the city of
Richmond, where the colored voters largely predominate, and by

229

230 WADDILL VS. WISE.

unnecessary and unreasonable challenges of the colored voters, con-
nived at by the Democratic judges of election, consumed so much time
that 255 colored voters at the first precinct, 168 at the third precinct,
and 134 at the fourth precinct, making in all 557 voters, were deprived
of an opportunity to vote for the contestant and that in this way the
contestant was defeated and the contestee elected.'

Of this number 457 were examined as witnesses, and they testify that
they were legal voters, that they were present at the polls with their
ballots in hand for the contestant endeavoring to vote, but failed, as they
allege, by reason of the great consumption of time by the Democratic
challengers in challenging the colored voters, and by the Democratic
judges in receiving them, and the majority of the committee insist that
these 457 votes that were not cast or tendered should be counted for the
contestant, thereby overcoming the returned majority of the contestee
of 261 votes and electing the contestant.

CONSPIRACY.

In arriving at the conclusion that there was a conspiracy upon the
part of the Democratic managers and Democratic judges of election to
carry the election by the suppression of the colored vote the majority of
the committee rely upon the testimony of certain witnesses introduced
by the- contestant, and we will now refer to some of them to give the
character of the evidence relied upon to prove a conspiracy as charged.

A. <J. ROCKECHARLIE, p. 38 :

Question 4. Heard Smith say he wanted to delay time. Wliether his remarks alluded
to the election or not I can't say.

W. A. BENDEDICT, p. 63 :

Question -2. I think on the day before the election, November the 5th, at the ter-
minus of the Richmond Union Passenger Railway, 29th and P streets, Marshall ward ;
present, Mr. Timber-lake, one of the judges of election, first precinct, Jackson ward,
Mr. Buck Adams and Capt. Peter Smith, and good many others whose names I do not
know. Mr. Adams rather Mr. Timberlake remarked first that he calculated hav-
itig the handling of about 1,'200 negro votes in Jackson ward. Mr. Adams then re-
marked that we will shut out about half of them. Mr. Timberlake, in re[>ly, said,
"Right you are, partner. " I do not know whether there is anything else ; but there
is: I now recall another remark by one of the employees of the railroad: " Tim-
berlake, you are a damn fool for talking that way. You will get yourself into
trouble." I believe that is all I remember now.

WILLIAM L. TIMBERLAKE, p. 1090 :

60th. Ques. Mr. Ira Benedict, ivho testified on behalf of Judge Waddill, stated, as well
as I can recollect, that a day or tivo afier the election he had a conversation with you near
the eastern terminus oj the electric line, and that in that conversation you boasted thai you
and the other Democratic judge had shut out or kept from voting two or three hundred colored
voters in the first precinct of Jackson ward ; did you make that statement, or one similar to
it; if not, state, the conversation as well as you can. recollect. Ans. L did not make that
statement. Capt. Sullivan, Mr. JBeitedict, and myself were talking over there one evening
about shutting out of voters, and Capt. Sullivan said, " Timberlake, how many were shut
out in your precinct?" I said, "About twoor three hundred." Mr. Benedict said, "What
was the causet how were they shut out f" 1 told him, " It was due to the fact that the Repub-
lican judge and Republican supervisor delayed the voting by taking so long to find the name
of the voters and by making speeches out of the window."

H. P. HARPER, p. 69 :

1. Q. State your name, age, residence, and occupation. Ans. H. P. Harper, 48 yrs.
4 mos. 13 days; 304 West Clay ; in little wood and coal business.

2. Q. Were you at the 1st precinct of Jackson ward on the 6th of Nov. last? If so,
please state at what time, and what j ou heard in connection with the election, if any-
thing. Ans. I was at the precinct cor. Gilmer and Leigh. I got there seven or little
after seven. I rent a place next door to the polls. I was there off and on all day; my
business is there. During the morning I don't know exactly what part of the day
on or about eight o'clock, I asked a gentleman, " What is this that you are springing

WADDILL VS. WISE. 231

on us now I " and be said that this is the ballot (it is impossible for uie to get the
exact words), the constitutional ballot to be voted on every tsventy years ; but there
were some points about it that had not been settled by law, or never been exactly
understood, or some way like that, but that Mr. Barbour and Geu'l Mahone had had
an understanding that they would make no point upon that question. They are used
more, he told me, in this ward than any other. I don't say positive that is the exact
word, but what lie did say was to the effect that they were to hinder and delay the
election by asking questions and having them read.

LEWIS STUART, p. 45 :

Question 10. Heard Belvin say, " We intend to hold them down to-day."

EDWARD THOMPSON, p. 1441 :

Question 15. Heard Belvin say in the morning that he intended to hold that vote
down that day within 300.

This man had been guilty of embezzling funds belonging to the post-
office while employed in it. What weight is to be given to his testi-
mony we leave the House to determine.

JOHN B. NEWELL, p. 73 :

Question 12. Heard Henry Charters, a Federal office-holder at Washington, and an
appointee of contestee, say nt First Clay precinct, " By God ! we have knocked the
niggers out of 300 votes in Jackson ward, and Yankee Allan is raising hell about it."

JOHN W. GRAVES, p. 138 :

Question 3. When approaching the polls to vote in white line was whispered to by
the assistant challenger, who said, "Delay them all you can." Upon enquiring
as to what was said, the challenger said, " When judge questions you in regard to
the constitutional amendment, ask him what it means ; what it is for, and all
about it."

29. X Q. Is it not a well-known fact among the white Democrats of Richmond that you
were a prominent candidate for the legislature on the Republican or Coalition ticket in the
fall of '87 ? Am. I suppose so.

30. X Q. Do you think it probable that under these circumstances a Dem. would have
been foolish enough, to instruct you as to hoic you should vote and how you should cast your
ballot at the next succeeding election? Ans. I am positive that the gentleman tvho advised
me did not know me nor my name. That is, I judge so from his expression. He advised
me before my name ivas called, and after I announced my name to the judge he did not seem
to recognize me nor did I know him. I presumed he was a Republican. I did not knoic
positively that he was one.

JAMES H. HARVEY p. 195 :

10th question. State whether or not you heard any one say anything about the
voting in Jackson Ward? Answer. I heard at the polls a great many say the voting
was purposely delayed in order to hinder the colored voters from casting their bal-
lots/ After the polls were closed at night, while waiting in front of the Dispatch
office, 1 heard a man state (I inquired his name and I was told he was Petit) that he
had had the pleasure that day of seeing 500 or 600 negroes cut out of their votes.
He said he had been carrying refreshments from Biuford's out to the boys in Jackson
Ward.

27th. X Q. Had you ever seen the man ivhom you heard make the statement in front of
the Dispatch office on the night of the election before^ Ans. Not to know him.

2&th. X Q. Do you knoiv anything of him? Ans. No, sir.

JAMES H. BARRETT, p. 209 :

2d. Question. Where were you on the evening before the 6th day of November
last, and what occurred with reference to the election to be held the next day ? An-
swer. I was coming down Seventeenth street between 7 and 8 o'clock in the evening,
and Frank Mann overtaken me by the elevator. We were on our way to the Repub-
lican headquarters. When we arrived opposite Venable street we met Mr. Finnerty
and Mr Gentry talking. As we arrived opposite them heard Mr. Finnerty say to Mr.
Gentry, "Vote these niggers slow to-morrow." His reply was, " All right." At that
time 1 had gotten by them and did not hear any more that passed. My friend, Frank
Mann, stopped and said something to them and then overtaken me.

Other testimony of a similar nature appears in the record, but we do
not think it necessary to give it. It all consists of loose, vague state-
ments of disconnected parts of conversations or an occasional remark
made by some excited or enthusiastic partisan, such as may be heard

232 WADDILL VS. WISE.

in the beat and excitement of any election, and is refuted by the evi-
dence as to what actually transpired at the polls on the day of election.

The charge that the judges of elections purposely and deliberately
retarded and obstructed the voting is not sustained.

At the tirst precinct it is shown that the colored registration-book
was in the hands of the colored Republican judge; that he was an in-
telligent man and a merchant, and that he was assisted during the
entire day in his labors by the Kepublican Federal supervisor, a white
man, and that if there was delay in voting it was caused in great meas-
ure by the tardiness of this Kepublican judge and Kepublican Federal
supervisor in finding the names of the voters on the registration-book.

It also appears that this Kepublican Federal supervisor was an
excitable and irascible man, and that he persisted in raising objections
to the challenging of voters and iu presenting his views at length upon
every question which was raised, thereby consuming much time; that
he was very offensive in his language and conduct to the Democrats,
and did more than all others to irritate and produce bad feeling.

We here refer to the following depositions to show that much delay
was caused as we have just stated.

Louis B. SCHDTTE, one of the clerks, page 1106:

1st. Ques. What is your name, age, residence, and occupation ? Ans. My name is
Louis B. Schutte; my age is 34 years; my residence is No. 550 Brooke avenue, Rich-
mond, Va., and I am a machinist.

2nd. Qut-s. On the 6th of last November were you one of the clerks at the 1st pre-
cinct, Jackson, and did you act in that capacity during the entire day ? Aus. Yes,
sir.

3rd. Ques. As such what duties did you perform ? Ans. To see that the names
were properly recorded upon the poll-book.

4th. Ques. Who held the registration-book for the colored voters at this precinct?
Ans. Bedford C. Stokes.

5th Ques. To what political party do you belong, an-1 to what does said Stokes be-
long? Ans. I belong to the Democratic party and Stokes to the Republican.

6th. Ques. How long have you acted as clerk at this precinct? Ans. I think four
years. I remember having been clerk on three occasions. It may have been more
than four years.

7th. Ques. How long has said Stokes been clerk at said precinct? Ans. About four
or five years.

8th. Ques. What is his business? Ans. He keeps a small store on Brooke avenue.

9th. Ques. Are his customers mostly white or colored ? Ans. I don't ?

10th. Ques. Have you any personal acquaintance with any large number of colored
voters at that precinct? Ans. Yes, sir; I know a good many of them.

14th. Ques. State who was iu the polling-room from the opening to the closing of
the polls on the day of the last election, and give their official positions on that day.
Aus. R. J. Cottrell, registrar and judge; W. L. Timberlake and Bedford 0. Stokes,
judges ; Louis B. Schutte and S. D. (Jhamberlayne, clerks ; George Duncan and Samuel
Brittou, supervisors ; these were all.

15th. Ques. State whether or not Mr. Chamberlayue was on that day deaf, and if
deaf, whether to such an extent that he could not hear any discussion that might have
taken place between the officials inside of the room and parties on the outside of the
room.

(Excepted to by the contestant, because leading and because Chamberlayne is not
only the best evidence of the facts inquired into, but is the only evidence ; the wit-
ness Schutte can't possibly know those facts.)

Aus. In answer I would say that in speaking loudly to Mr. Chamberlayne he can
hear, but I know him to be very deaf. I can't answer as to what he heard. I am
positive that he could not hear.

16th. Ques. Is Mr. Duncan a Republican or a Democrat? Ans. He is a Repub-
lican.

17th. Ques. Were the ballots received through a window or a door ? Ans. Through
a window.

18th. Ques. Was the window in the length or width of the room ? Ans. In the
length of the room about the center. ,

19th. Ques. How wide was the window ? Ans. About three feet.

20th. Ques. Describe the location of the ballot-boxes, and of all the parties in the

WADDILL VS. WISE. 233

room. Ans. The ballot-box was near the center of the table, about a loot and a half
or two feet from the window. Mr. Cottrell was right at the ballot-box; he received
the ballots and put them in the ballot-box. Mr. Timberlake was just opposite Mr.
Cottrell and also near the center of the table ; he was judge and had charge of the
white registration-book. Stokes was seated at the north end of the table near Mr.
Timberlake, and had charge of the colored registration book. Louis B. Schutte, my-
self, was seated just opposite Stokes, near the window, and had charge of one of the
poll-books. Mr. Chamberlayne was seated on my right ; he also had charge of one
of the poll-books. Mr. Britton was standing near to and behind Mr, Stokes; he was
the Democratic supervisor. Mr. Duncan I will state that his position was very irregu-
lar during the day; he was sometimes at the window and sometimes and very often at the
colored registration book.

21st. Ques. Could you or not, from the position you occupied, see what was going
on in the room ? Ans. Yes, sir.

22nd. Ques. Could you or not see what took place from the front of the window on
the outside ? Ans. Yes sir.

23rd. Ques. Did Mr. Britton, during the day, take any part in the election, except
being preset? t ; if so, state what he did or said? Aus. He did not take any part
in the election, except when the obstruction was made there by Ben. Scott, and he
ordered him to take it away, and if he did not he said he would have him arrested.

24th. Ques. Who was Ben. Scott, what were his politics, and what was the char-
acter of his obstruction ? Ans. Ben. Scott is a colored man, and as far as I know he
is a Republican. His obstruction was a scantling, I think, that was about to be
placed across the street, and Mr. Britton ordered him to take it away.

25th. Ques. Did Mr. Britton, at the time, give any reason for ordering the scantling
to be taken away ; if so, state what he said ? Ans. He said it had no business there,
and I further think he said it was an obstruction.

26t/i. Ques. Did Mr. Duncan take any part in that election, besides being present? If,
so, state, as ivell as you can, what he said or did during the day. Ans. Well, yes, he took
part in election; he would get up in the windoio oftentimes during the day, telling the crowd
"for God's sale to getback; if they did not they could not vote;" he icould go from the
window to the registration book, held by Mr. Bedford C. Stokes, trying to help or helping
him to find the names of the voters ; I would state also that he was a great annoyance to
Mr. Stokes, and at times got him so excited that he did not know what he teas doing ; in-
stead of saying that he did not knoiv what he was doing, say that he did not know ivhat
name he was looking for ; 2 also remember that in looking for the name of Scott, I think,
not finding Scott, Duncan said "you are foolish ; you have got the wrong name; look in
the M's." I also remember the name of Washington being called, and he icas looking under
the IPs for thename of Sunn; they were looking for the name of Quarles for about three
or four minutes, and said they could not find it, but subsequently found his name. He
further objected to Cottrell's reading the constitutional ballots, that is, for or against the
constitution; he would frequently pull out his watch and time Mr. Cottrell, saying, this
took you 2-J, sometimes 2f, and sometimes 3 minutes ; I think he had a blank upon which he
kept the time; I remarked to Mr. Timberlake to pull out his ivatch and see if this was cor-
rect ; the next ballot being read, it took from to 1 minute to read it.

(The notary makes the following note: The witness, in answering the foregoing
question, several times mentioned in the name Mimms in connection with the name
Scott, and at the suggestion of Judge Waddill the notary was requested to interline
what the witness said: The notary then asked the witness what he wanted added in
his answer in connection with the name Scott, and understood the witness to say, add
the words "look in the M's;" Judge Waddill said he understood the witness to say
" look in the M's for Mimms ;" thereupon the notary asked the witness which he said,
and he replied that the interlineation as made by the notary, to wit, "look in the
M's," was what he said and was what he wanted added.)

27th. Ques. Where at the window did Mr. Belvin stand on the side where the
colored voters were or on the side where the white voters were ? Ans. On the side
where the white voters were.

28th. Ques. How much of the window did he occupy ? Ans. I can't say he occu-
pied any ; he was standing on the side, and sometimes he would look around it and
put his head into it.

29th. Ques. When a white voter came up, would Mr. Belvin step aside and let him
vote or force the voter to go around him ?
' (Excepted as clearly le'ading.)

Ans. To the best of my recollection he forced the voter to go around him.

30th. Ques. Did Mr. Selvin's position or conduct, as Democratic challenger, in anyway
prevent the colored voters from, getting up to the window on their side ? Ans. It did not;
but on the contrary he shoived a kindness to both white and colored so as to let them vote.

31st. Ques. Did Mr. Duncan at any time during the day interfere with Mr. Belvin
in the performance of his duties as Democratic challenger? Ans. He did.

32nd. Ques. What was the character of this interference ? Ans. The only recol-

234 WADDILL VS. WISE.

lection I have is that Mr. Duncan threatened to have him arrested on several occa-
sions and had him arrested.

33rd Ques. (By same.) When Mr. Belvin would challenge a voter at any time
during the day, did you hear the challenge except during the half hour when you
were absent ? Ans. Yes, sir.

34th Ques. (By same.) State whether or not he challenged only those that he had
grounds to suspect had no right to vote, or whether he challenged unnecessarily and
by unreasonable questions ?

(The contestant excepts to this question, and asked that the witness would be sent
out the room during the time it was being stated, which was accordingly done. The
question is clearly leading and indicates to the witness the answer he is expected to
give. It moreover asks the witness to state what he can not know, namely, whether
Belvin only challenged persons whom he suspected. The witness can not know his
suspicions.)

Ans. I think he had a right to challenge those whom he did challenge.

35th Ques. (By same.) State as well as you can what Mr. Duncan would say when
he would make a speech to the voters on the outside and to whom his remarks were
addressed, the white or colored men present?

(At the request of Judge Waddill the witness is sent out of the room in order that
Judge Waddill may except to the foregoing question.

The contestant excepts to the foregoing question on the ground that the witness has
nowhere stated that Duncan made a speech to any one, either white or colored.

The counsel for contestee says that the witness, in answer to question 26, has said
that Duncan got up and would go to the window and make statements and remarks
to the crowd.)

Ans. As to the exact language, I don't know what he said more than I said iu the
offset, that was when he got after the crowd to keep back, and on a great many oc-
casions threatened to arrest Mr. Belvin. I don't know exactly to whom he allude to,
but as to the keeping of the crowd back, he alluded to the colored people ; they were
the only ones that were shoving up against the window.

36th. Ques. (By same.) Were these speeches or talks frequently or rarely made during
the day f Ans. Frequently.

3?th. Ques. (By same.) Were they short or of consider able duration f State about how
lony he u-ould occupy the windmv on such occasions.

(This and the last preceding question excepted to by the contestant because clearly
leading.)

Ans. / ivould state that sometimes they were of considerable duration, but as to the tract
time I am unable to give you that.

38th. Ques. (By same.) Would the voting go on at these times, or would it be
stopped until Mr. Duncan had concluded his remarks and gotten out of the window!
Ans. It would be stopped by Mr. Duncan.

39th. Ques. (By same.) Did the conduct of Mr. Duncan, both as regards these
remarks and his conduct towards the officers of election in the polling precinct, ac-
celerate or impede the casting of the vote? Ans. What are you getting at now ?
(The notary now explains the question. Then the witness answered as follows:)
It caused delay. I know what you are getting at now.

40th. Ques. (By same). Why did Duncan go around to help Stokes find the names f
Was Stokes slow or rapid in finding the names on the registration book of the colored
voters? Ans. Mr. Duncan went around to assist Mr. Stokes in finding the names. Mr.
Stokes was very slow indeed.

41st. Ques. (By same.) Did you hear Duncan makeany commentson Stokes during the
day ; if so, ichat did he say ? Ans. Yes, sir ; he said on several o casions he was a fool-
ish man

42nd. Ques. (By same.) Yon have already stated that Stokes got very excited and
worried ; was Mr. Duncan cool or excited on that day ? Ans. Excited, more so than
that of Mr. Stokes.

43rd. Ques. (By same.) Did Mr. Duncan by his interference with Stokes make
him find the names faster, or did he confuse him and delay him iu finding them ?
Ans. He did not make him find them faster, but on the contrary delayed him.

44th. Ques. (By same.) When a white voter asked for an explanation of the constitu-
tional ballot, as you stated in answer to the 26</i ques., would Duncan object or not; and, if
so, what would he do on these occasions? Ans. Yes, sir; he would object, and would tell
Cotlrell, the judge, he had no right to read them. He would take out his watch and time
him.

45th. Ques. (By same.) Would these wrangles between the judges and Duncan
cause much delay ?

(Excepted to by the contestant as leading.)

Ans. Yes, sir.

46th. Ques. (By same.) When a voter was challenged by Mr. Belvin or any other

WADDILL VS. WISE. 235

Democratic challenger would Duncan allow him to be sworn without objection or
discussion f

(Excepted to as loading by the contestant. The witness should be asked what Dun-
can would do under these circumstances.)

Ans. Yes, sir; he would object to his being sworn.

47th. Ques. (By same.) State, as well as you can, what objection or remarks he
would make. Ana. His remarks to Mr. Belvin would be that he had no right to
Hweur him ; that the mau was a legal voter.

48rh. Ques. (By same.) Was it on such occasions that he threatened to have Mr.
Belvin arrested ? Ans. Not altogether on those occasions. If Mr. Belviii simply said
he challenged a man he would threaten to have him arrested then.

49th. Ques. (By same.) Did he threaten to have any others arrested, and if so,
who ? Ane. Yes, sir, he did; Mr. H. M. Smith, jr. ; he was the only other one that I
knew of.

(The witness says upon reflection that he thinks he also threatened to have Mr.
Cottrell arrested when he read about the constitution.

At this time, to wit, 2/<i5 p. m., it was proposed to adjourn for dinner, which con-
testant was at first willing should be done, provided that the time might be extended,
instead of to 4, as usual, to 5 o'clock, so that he might fill an engagement to take the
deposition of an old gentleman from' the country, which was to be taken at 3 o'clock
p. m. before another notary, and at the taking of. which it was important for him to
be present, and that he, the contestant, wou.'d agree to work in tho night, so as to
make up the hour lost before this notary, from four to five ; but this accommodation
not being granted, contestant insisted that we should proceed with the taking of tho
deposition until the usual time of adjournment, said time being from three to four
o'clock. The contestant further says that he thinks the examination of this witness
should be concluded and cross-examination begun, if possible, while he is on the
stand. )

At this point the witness says that he desires to have his answer to the 29th ques-
tion corrected so as to read as follows, to wit : Mr. Belvin did not use any force to-
wards the voter, but simply did not move out of his way, and the voter had to walk
around him, Mr. Bolviu pressing himself up against the wall to enable the voter to
pass.

The contestant desires the notary to record the fact that he took a recess until 4
o'clock at this point, which was accordingly.

50tb. Ques. (By same.) Did Mr. Duncan at any time during the day threaten to
arrest Mr. Timberlake? Ans. I think ho did.

51st. Ques. (Byname.) For what did he threaten to arrest him? Ans. There was
a contest going on as to whether he would allow a voter to vote or not ; they finally
consented to vote him.

5'^nd. Ques. (By same.) Several witnesses, called on behalf of Judge Waddill,
testified that Mr. Belvin delayed the voting by asking such unnecessary questions as
the following: "As to whoovvned the voter before the war?" "Whether he had auy
children, and how many he had ?" State whether or not you heard Mr. Belvin or any
Democratic challenger ask any questions similar to those. Ans. I did not.

53rd. Ques. (By same. ) Sitting, as you say you were, directly in front of the win-
dow, were you in such a position and close enough to the window to hear the ques-
tions asked of the voters by the Democratic challengers ? Ans. Yes, sir.

54th. Ques. (By same.) Do you remember what were the grounds upon which
the Democratic challengers challenged the voters; and if so, mention such as you re-
member? Ans. One of tho principal grounds was as to their moving from one place
to another; the next ground was they had a printed list of the disqualified voters
from the hustings and police court of this city.

55<A. Ques. (By same.) Of all the persons at the polls that day, who did most by inter-
ference with the voters, the officers of election and others to retard and obstruct the voting ?
Ans. I think Mr. Duncan is one, Mr. Bedford C. Stokes in the slowness in getting the
names is another, and the continued pushing of the colored voters on the outside another. I
should certainly mention Mr. Geo. Duncan as the man that did the most to obstruct the
voting.

56th, Ques. (By same.) You state that you have been clerk at this precinct for
about five years ; state whether or not the Democratic challengers did any more chal-
lenging than was absolutely necessary to find out whether or not the person offering
to vote had a legal right to vote or not ? Aus. I don't know every voter in the pre-
cinct, but I don't think they did any more challenging than they ought to have done
on this occasion

57ih. Ques. (By same.) Who challenged in the place of Mr. Belvin when he went
away? Ans. Mr. H. M,. Smith, jr.

58th. Ques. ( By same. ) Did he ask any frivolous and unnecessary questions, or
did ho ask questions similar to those that you have said Mr. Belvin asked ? Ans.
He asked questions similar to those asked by Mr. Belvin.

236 WADDILL VS. WISE.

59th. Qut:w. (By same. ) Several witnesses who have testified in behalf of Judge
Waddill have stated that Mr. Cottrell, who received the ballots, gvoatly hindered
and delayed the voting ; did you see Mr. Cottrell during the entire day do anything
to hinder or delav the voting ; and if so, what ? Ans. I did not.

60th. Ques. (By same.) Did you see Mr. Cottrell do anything during the day to
aid any particular voters to get in their ballots after they had been challenged ; if
so, what ? Aus. He did not do anything to hinder any voter from getting in his bal-
lot, but I don't remember seeing him do anything particularly to aid any particular
voter to get in their vote after they bad been challenged.

61st. Ques. (By same.) If a party came to the polls who Mr. Cottrell personally
knew had a right to vote, and was challeged by the challenger, would Mr. Cottrell
go through the form of swearing him before permitting him to vote, or would he vote
him, stating that he knew the party had a right to vote ?

(Excepted to as leading by the contestant.)

Ans. I think that that happened during the day ; that is, that he would vote him
without swearing him.

62nd. Ques. (By Hame.) Did the police force of the city of Richmond, or the U.
S. deputy marshals who were at at this precinct, take any part in the election, one
way or another, further than to do all in their power to preserve order? Ans. No,
sir.

63rd. Ques. (By same.) Did the line of colored voters and the colored men around
the voting window make any comments on Mr. Duncan's conduct? Aus. I think
they did, some of them saying that he was very much excited; and I am under the
impression that I heard the remark made that he talked too much. I am not
positive, but I think I heard it said by those on the outside that there are two men
in there and they can't find one man's name.

From the testimony of this witness, who was present necessarily all
day at the polls, and in a position to see and hear everything done by
the judges and Republican Federal supervisor, we submit that the Dem-
ocratic judges did nothing to impede and retard the voting ; that they
simply discharged their sworn duty to pass upon the legality of a vote
when it was challenged. We submit further that if there was unusual
delay it was caused by the Republican judge of election and Repub-
lican Federal supervisor the slowness of one to find the names of the
colored voters on the registration book, and the officiousness, assertion
of authority, and ill-temper of the other.

WILLIAM L. TIMBERLAKE, one of the judges, page 1088:

27th. Ques. (By same.) Did Mr. Duncan take any part in that election besides
being present ? If so, state as well as you can recollect what he said or did during the
day ? Ans. Yes, sir, he did. The first thing in the morning he objected to Mr. Bel-
vin standingfat the window. Every now and then he would go to the window and make
a short speech to the voters on the outskle. Every time a colored voter's name would
be called out he would go round to Stokes, the colored judge, and help him to find the
name. Every time a white voter wanted the constitution read to him he objected and
made a short speech. Mr. Belvin would challenge a vote, and he said if he did it
again he would have him arrested. Every now and then he would call Stokes a block-
headed fool, because he could not find the names fast enough for him. When Cottrell
would read the constitutional law he would tell him if he kept on doing it he would
have him punished for it. He made several other remarks there, talking and blowing.
I can't tell you one-half he said and did.

28th. Ques. (By same.) Where at the window did Mr. Belvin stand on the side
where the colored voters were, or on the side where the white men voted ? Ans. On
the side where the white men voted.

29th. Ques. (By same.) About how much of the window did he occupy? Aus.
He occupied about 6 or 8 inches generally. Sometimes he had his whole body in front
of the window, and then again he would have nothing but his head in the window.

30th. Ques. (By same.) When a white voter came up would Mr. Belvin step aside
and let him vote, or force the voter to go around him ? Aus. He would shove him
around in front of him.

31st. Ques. (By same.) State as well as you can what Mr. Duncan would say when
he would make a speech to the voters on the outside. Ans. He would say, "Stand
back, men ; for God's sake don't shove. You are wasting your own time, and I am in
here to protect you; " and wind up by saying, "Now stand back."

32nd. Ques. (By same.) To whom was Mr. Duncan speaking to colored or white
men when he urged them to stand back? Ans. Speaking to the colored men.

WADDILL VS. WISE. 237

33d. Ques. (By same.) Why did be go around to help- Stokes to find the names;
was Stokea slow or rapid in finding the names on the registration book of the colored
voters ? Ans. He said Stokes was a blockhead and too slow for that place.

34th. Ques. (By same.) You have stated what Mr. Duncan said. State of your
own knowledge, if you can, whether Stokes was slow in finding the names. Ans.
He was very slow.

35th. Ques. (By same.) Was Mr. Duncan cool or excited on that day ? Ans. He
was very much excited most all day.

36th. Ques. (By same.) Did Mr. Duncan speed the finding of the names by Stokes,
or did he interfere with him and delay him ? Ans. I think he interfered with him very
much.

37th. Ques. (By same.) Did Mr. Duncan, when so looking for the names with
Stokes, always look under the right letter for the name ? Ans. No, sir.

38th. Ques. (By same. ) State any instance that you can recollect where he looked
under the wrong letter ? Ans. He was looking for a man named Kennedy under the
letter C. Stokes was looking for the name and Mr. Duncan was looking for the street
and number. He was looking for a man named Scott, and he had the letter C ; he was
looking for a man named Minims, and he had the letter N. In this case he never did
find him ; he sent the man away without voting.

39th. Qaes. (By same.) Are you certain that the names of the voters were Ken-
nedy, Scott, and Mimms ? Ans. Yes, sir ; I have a memorandum of them.

40th. Ques. (By same.) You have said that every time a white voter wanted the
constitution read to him Duncan would object and make a short speech. To whom
would he make a speech ; to Mr. Cottrell or to the voter ? Ans. He would make it to
Mr. Cottrell.

41st. Ques. (By same.) When a voter was challenged by Mr. Belvin or any other
Democratic challenger, would Duncan allow him to be sworn without objection or
discussion ? Ans. No, sir.

42nd. Ques. (By same.) State, as well as you can, what objection or remark he
would make. Ans. He would say that they had no right to swear him ; that he had
a right to vott> ; that he would look into the matter hereafter.

43rd. Ques. (By same.) Was it on such occasions that he threatened to have Mr.
Bel viu arrested ? Ans. Yes, sir.

44th. Ques. (By same.) Did he threaten to have any one else arrested? If so,
whom ? Ans. Yes. sir ; myself.

45th. Ques. (By same.) For what? Ans. Because I objected to a man's voting
without being sworn, and that man he would not let vote because we wanted him
sworn ; he turned him away. I had his name on the memorandum I have alluded to
above, but I have misplaced it, and though I have looked for it I can't find it.

46th. Ques. (By same.) Had the man whom you objected to being voted without
being sworn been challenged ? Ans. Yes, sir.

47th. Ques. (By same.) You have spoken of Mr. Cottrell reading something about
the right to vote on the constitution. Can you tell about the substance of what he
would say ? Ans. That they had a right every so many years to vote on the consti-
tution, whether they wanted it changed or let it stand as it was.

48th. Question. (By same.) Several witnesses called on behalf of Judge Waddill
testified that Mr. Belvin delayed the voting by asking such unnecessary questions as
the following : " As to who owned the voter before the war?" " Whether he had
any children?" "And how many he had?" State whether or not you heard Mr.
Belvin or any Democratic challenger ask any such questions ? Ans. I did not.

49th. Ques. (Bysame.) Sitting, as you say you did, directly in front of the window,
were you in such a position and close enough to the window to generally hear the
questions asked of the voters by the Democratic challengers? Ans. Yes, sir.

50th. Ques. (By same.) Do you remember what were the grounds upon which the
challengers challenged the voters ; if so, mention such as you remember ? Ans. They
challenged them on the ground that they were disfranchised by the police and hust-
ings courts, and some times they had the wrong No. of their house or street.

51st. Ques. (By same.) State whether or not the conduct of Mr. Duncan, which
you have described above, delayed the voting? Ans. Yes, sir ; very much.

52nd. Ques. (By same.) Were any complaints made during that day by any par-
ties of the conduct of Mr. Duncan ? And, if so, were they by the white or colored
men ? Ans. You could hear the colored men out there in the line say, when he came to the
windoiv, that if he did not come there so often that they could gel more votes in ; that he took
up so much lime getting the votes in.

53rd. Ques. (By same.) You have stated that Mr. Duncan would object to Mr.
Cottrell explaining to the voter his right to vote upon the constitutional question.
Did or did not such objection consume time? Ans. Taking it as a whole, it did con-
sume some time.

54th. Ques. (By same.) You have stated that when a Democratic challenger
would challenge a vote Mr. Duncan would object and insist that he had no right to

238 WADDILL VS WISE.

challenge him. State whether or not such objections also consumed time. Ans. Yes,
sir.

55th. Ques. (By same.) State whether or not the questions asked by the Demo-
cratic challengers were frivolous and unnecessary, such as 1 alluded to in the 48th
question ; if not, state the nature of the questions asked as well as you can recollect
them? Ans. They were not questions of the nature referred to in your-'Sth question.
When Mr. Belvin challenged a vote he would say, "Were not you convicted in the
police court ?" the voter would say, " No," then he would ask to have him s^orn.
He would not every time say the police court, he would sometimes say the hustings
court. He would then sometimes ask a voter where he lived.

56th. Ques. (By same.) When would he ask a voter whether he had been con-
victed in the police or hustings court ? Would it be when he had challenged the
voter on the ground of being disfranchised, or because the voter did not give the
number of his residence as registered ? Ans. When he would ask him if bo had been
in the police or hustings court, he would find his name on the disfranchised list. If
he asked him about the street and number it would be when he had given a diferent
number from the one on the registration book or the book he had.

57th. Ques. (By same.) Did Mr. Smith, when he challenged in the place of Mr.
Belvin, did he ask any of the frivolous questions, or did he ask questions similar to
those that you have said Mr. Belvin asked ? Ans. He asked questions similar to those
Mr. Belvin asked.

58th. Ques. (By same.) Several of the witnesses vcho have testified in behalf of
Judge Waddill have stated that Mr. Cottrell, the one who received the bailors, greatly
hindered and delayed the voting. Did you see Mr. Cottrell during the entire day do
anything to hinder or delay the voting? And, if so, state. Ane. No, sir.

59th. Ques. (By same.) Did you see Mr. Cottrell during th day do anything to
aid any particular voters to get in their ballots after they had been challenged? If
so, state it. Ans. Yes, sir; on several occasions Mr. Belviu would challenge colored
voters and Mr. Cottrell would say, "I know he is all light," aud would vote him
without swearing him.

Here again we find this witness testifying to the same condition of
affairs as that referred to by the previous witness aud showing that the
colored voters themselves complained that this Kepublican Federal
supervisor was delaying the voting.

It may be said that Stokes, the colored Eepublicau judge, was not
competent to take charge of the registration book. As we have said,
he was an intelligent man and a merchant, and had acted us judge on
other occasions, and the colored registration book was put in his charge
at the suggestion of the Eepublicau Federal Supervisor Duncan, as
well as Cottrell, one of the Democratic judges.

W. L. TlMBERLAKE, p. 1091.

4th. X Ques. (By same.) Were yon anxious that all colored men entitled to vote
should get in their vote ? Ans. Yes, sir; I think that every man entitled to vote should
get it in if possible.

5th. X Ques. (By same.) How did this colored man, Bedford Stokes, compare in the
matter of intelligence and education with yourself '? Ans. I don't know ; lit-, might have as
much sense as I have got. I think his education is very good; he could read and write.

6th. X Ques. (By same.) Then how did you construe his looking in the C's for
Kennedy, in the C's for Scott, and in the N's for Minims when you at once detected the
mistake and went to help him ? Ans. Because Mr. Duncan so much confused him that
he did not know what he was doing ; if Mr. Duncan had not interfered with him he
would have gotten on about three times as fast.

7th. X Ques. (By same. ) Then what did you mean in your answer to my first ques-
tion, that you would have helped Stokes in other cases than Kennedy's had not Mr.
Duncan been there to help him ? Ans. Because when Mr. Duncan was with him he
had hold of one side of the book and Stokes had hold of the other, and there was no
chance for me to get to the book to help him.

8th. X Ques. (By same.) But you have said that Mr. Duncan was running all over
the room and continually making speeches at the window to the crowd ; why did you
not then help Stokes ? Ans. Because Stokes was not looking for anybody's name then.

9th. X Ques. (By same.) Then, do I understand you that, with the exception of
the time you helped to find Kennedy's name, Mr. Duncan assisted Stokes in finding the
names of voters f Ans. Yes, sir; that time Mr. Duncan was arguing with Belvin;
that was the only chance I had to help him during the day.

JOth. X Ques. (By same.) Did anybody help you to find the names in your book f
Ans. No, sir ; only one time Mr. Duncan started towards me to help me, but 1 found
ihe name oefore he reached me.

WA.DDILL VS. WISE. 239

llth. X Ques. (By same.) And did you find the mimes, with that exception, so
quickly that you needed no assistance with your book ? Ans. yes, sir.

12th. X Ques. (By same.) Which book did you have at that precinct in the May
election last year ? Ans. The colored book.

13th. X Ques. (By same.) How was it and at whose suggestion, that you took the white
look at the election last November, and Bedford Stokes the colored one ? Ana. At the sug-
gestion of Mr. Cottrell and Mr. Duncan.

14th. X Ques. (By same.) Could you not have found the names upon the colored
book much quicker than Stokes ? Ans. If I had had to undergo what Stokes did, I
don't think I would have found them as quick as he did. Mr. Duncan talking and
whirling his hands around, I know I would not have found them as quick as he did.

15th. X Ques. (By same.) Then, if you found this delay going on by reason of Mr.
Duncan's conduct, as you have stated, why did you not propose to change books with
Stokes, since Mr. Duncan never interfered with you ? Ans. I thought about asking
him two or three times, and the thought struck me that if I took the colored book that
Mr. Duncan would come around and do the same thing to me that he did to Stokes,
and that would have ended in a big fight, and I did not want to have any of that
'round there that day.

16th. XQues. (By same.) Who would have fought and what for? Ans. Mr. Dun-
can and myself would have fought if he had bothered me as much as he did Stokes
that day.

17th. X Ques. (By same.) You have said that some two or three hundred men were
shut out at the close of the polls ; do you mean to say that the reason these men got no
opportunity to vote was because of delays caused by Mr. Duncan ? Ans. Not alto-
gether by Mr. Duncan.

18th. X Ques. (By same.) Do you mean principally by him? Ans. Yes, sir.

19th. X Ques. (By same.) And by whom else? Ans. By Stokes and Belvin.

20th. X Ques. (By same.) How could Stokes cause delay if he was being hindered
by Duncan as you have stated ? Ans. By not finding the names.

21st. XQues. (By same.) But you have said you could not have found the names as
fast as Stokes if Duncan bad bothered you as he did him. How, then, did Stokes delay
the voting ? Ans. I consider that both Stokes and Duncau delayed it, because Stokts
was looking for the names and could not find them, and that fretted Mr. Duncan and
he would talk to Stokes and that would bother him, and he, Duncan, was looking for
the number and he could not find that either, and I consider that both of them delayed
time in that way.

22nd. X Ques. (By same.) Did Mr. Cottrell and yourself, forming a majority of
the board of judges, use any means whatever to check the delays and obstructions of
which you have spoken, so that the hundreds that did not vote might be enabled to do
so ? Ans. Yes, sir; Mr. Cottrell said to Mr. Dui'can several times, "Take a chair and
set down, and we will get along much faster ; don't run about so much and talk so
much." That seemed to make him worse than ever.

We now quote from the deposition of H. M. Smith, jr., page 1153.

22nd. Qnes. (By same.) It has been charged that Mr. Cottrell delayed theelection by
waiting after Stokes had found the name of the voter on the colored registration book
for Belvin to find the same name on the copy he had ; state your observations as to that
course of procedure. Ans. There is not an iota of truth in the statement, so far as
my observation went, and I was very attentive. Mr. Stokes was so Tslow in finding the
name that Mr. Duncan, a distinguished Republican leader and the supervisor at that pre-
cinct that day, was assisting him to find the names every five minutes of the day. Mr.
Allen and Mr. Eockecharlie and Mr. Powell were assisting Mr. Belvin to find the names
on his own book, by looking over his shoulder and running their eye down the names,
that he could not have been slow if he had wanted to, so indefatigable were they in
their exertions to assist him. The whole contest was very pleasant and we raised no
objection to their having free access to our book to see the ground of our challenge,
and everything else. I will state further, as it occurs to me. that we put the chal-
lenge book, the disqualified list, and what other information we had in the hands of
different parties, so that they might be all looking at the same time, so as not to cause
any unnecessary delay.

29th. Ques. (By same.) State what icas Mr. Duncan's conduct during the last elec-
tion day. Ans. Mr. Duncan, who was the Federal supervisor for the Republican party
at this precinct, very greatly exceeded his powers and duties as supervisor, it struck me.
He was the most violent and aggressive partisan that I saw present; he seemed to take
charge of the whole poll over Republicans and Democrats alike spurring on and- assist-
ing the Republicans in every conceivable manner, making speeches to them,, assisting the
Republican judge to find the names, holding whispered conversations with the Republi-
can challengers on the outside, and in assisting and threatening to arrest, and in bull-
dozing the Democrats.

30th. Ques. (By same.) You have spoken of his making speeches; to whom and of

240 WADDILL VS. WISE.

what nature were they ? Aus. They were speeches to the negroes, begging them to
keep in line and not to shove; not to make any unnecessary noise.

3lst. Ques. (By same.) While he was speaking was the voting going on or sus-
pended ? Ans. Everything stopped when Mr. Duncan started.

32nd. Ques. (By same. ) He has been descri bed as being remarkably cool and calm
that day; do you coincide with that opinion? Ans. On contrary, I think he was the
most nervous and excited man at the precinct that day.

33d. Ques. (By same. ) Did you hear any complaints made of his conduct that
day ; if so, by whom? Aus. I am quite sure that Air. Edgar Allen said more than once,
that he was acting very indiscreetly if he wanted to facilitate the election ; and I heard sev-
eral negroes say, speaking of Duncan, " that man's just helping the Democrats, that's what
he's doing ; he is just playing right into the Democrats' hands," or words to that effect.

Again we find positive and direct evidence that Duncan, 'he Repub-
lican Federal supervisor, was the great obstructionist at the first pre-
cint.

THIRD PRECINCT.

We pass now to the third precinct.

Did the judges of the elections retard or obstruct the voting? Did
they read unnecessarily or consume time in explanation of the consti-
tutional convention question ?

WILLIAM J. STEPHENS, one of the judges, p. 1142 :

30th. Ques. (By same.) It has been testified that you read to several, if i.ot many, of
the white voters the law as to voting upon the constitutional convention. State whether you
did or not. Ans. I did not.

31st. Ques. (By same.) Did you read anything except the oath on that day? Ans. I
did not.

32nd. Ques. (By same.) Did you delay the voters by intentionally reading the oath with
unnecessary slowness f Ans 1 did not.

33rd. Qnes. (By same.) Who read any law at

34th. Ques. (By same.) Who read anything to the voters that day, besides the
oath, in your hearing ? Ans. Mr. Homer read a paper, which was handed to him by
Judge Waddill; it was a clause from the Federal Constitution bearing on elections.

35th. Ques. (By same.) Was Mr. Homer -asked to read the paper; if so, by whom?
Ans. He was asked to read it by Judge Waddill.

36th. Ques. (By same.) Do you remember any of the paper and the substance of
it ? Ans. I know it was bearing upon the election, but I don't remember the w r ord-
ing of it.

37th. Ques. (By same.) Do you know why Mr. Homer, U. S. supervisor, was asked
to read that paper ; is he a particularly good reader ? Ans. I do not ; he is a very
indifferent reader.

3Stb. Ques. (By same.) Where was Judge Waddill when the paper was being
read ? Ans. About in front from Mr. Homer and a few feet back from the window, as
well as I remember.

39th. Ques. (By same.) Do you remember whether the paper read by Mr. Homer
said anything about punishing any one under the U. S. law ? Ans. My impression
is that it did.

40th. Ques. (By same.) Do you remember whether Judge Waddill said anything
to Mr. Homer when he handed him the paper ; if so, what was it ? Ans. I don't re-
member distinctly, but I think he said read this for the benefit of the voters.

It seems from this deposition that the contestant himself was delay-
ing the voting by having papers read to the voters by Horner, the Re-
publican Federal Supervisor.

The Democratic judge read nothing except the oath when adminis-
tered to a voter.

\VILLIAM J. O'NEILL, one of the clerks, page 1139:

17th Ques. (By same.) State what was the conduct of Mr. W. J. Stephens dm ing the
day. Ana. From what I could see of him he desired every man who was entitled to vote to
do so.

18th. Ques. (By same.) State whether you saw anything in his conduct tending to
hinder or delay the voting. Ans. I did not; he did all in his power to vote every man be-
fore sunset.

19th. Ques. (By same.) Did you notice Mr. Homer during the day ? Ans. I did.

20th. Ques. (By same.) State as well as you can what was Mr. Homer's conduct dur~

WADDILL VS. WISE. 241

ing the earlier part of that day.^Ane. Mr. Homer demanded io know vpon what grounds
was the votes challenged.

2tst. Qnes. (By same.) Didhe dispute the right of the challengers to challenge f Ans.
In some cases he did.

2'2nd. Ques. (By same.) When he so denied the right Io challenge, did that end the
matter, or did he raise a discussion between himself and the challenger? A. It very often
raised a discussion between Mm and the challenger.

23rd. Ques. (By same.) Did such discussion consume time or speed the voting ? Ans.
It consumed about one or two minutes sometimes.

W. C. WILKINSON, page 1201 : i

2nd. Qus. State if you were at either of the precincts in Jackson ward on the day
of election; if so, which one? Ans. I was at the 3rd precinct, Jackson ward.

5th. Ques. Did you observe any disorder around the polls there that day; if so,
state by whom. Ans. I don't consider there was any disorder there that day.

6th. Qus. Did you observe how the election was conducted ? Ans. I did. It was as
orderly and quiet as any lever saw.

7th. Qus. How often have you attended elections in that ward? Ans. Several
times.

8th. Qus. The contestant, Judge Waddill, in his notice of contest alleges that cer-
tain voters at the 3rd precinct of Jackson ward were prevented from voting by the
connivance of the judges of election there, policemen of the city, and deputy United
States marshal and others. Now will you state whether the policemen of this city at
that precinct did any act to prevent, delay, or hinder any voter from casting his bal-
lot ? Ans. None to my knowledge ; to the contrary, I think each and every one did
all they could to promote the election. I do not think there was an arrest made at
that precinct that day or one attempted ; if there was I was not aware of it.

9th. Ques. State what was the conduct of the judges of the election there and of the
deputy United States marshals so far as they fell under your observation. Ans. All
fair and just as far as I could see.

HENRY W. RUFF, judge, page 1128, testified:

2nd. Ques. (By same.) What official position did you hold on the 6th day of last
November? Ans. I was judge of election at the 3rd precinct, Jackson ward, and held
the colored registration-book.

3rd. Ques. (By same.) State who was in the polling room during that election day
at that precinct. Ans. The judges were W. J. Stephens, S. S. Richardson, the colored
judge, and myself; the clerks were W. J. O'Neil and W. S. Jenkins, and the super-
visors were Thomas Hill and John J. Homes, the Republican supervisor.

4th. Ques. (By same.) Were you there during the entire day ? Ans. Yes, sir.

5th. Qnes. (By same.) Who held the registration-book for white voters ? Ans. S.
S. Richardson, the colored judge.

6th. Ques. (By same.) State what duties were performed by Mr. Stephens. Ans.
He was the one to receive the ballots, ask the name and call it out, and place the
ballot in the box.

7th. Ques. (By same.) State whether you saw Mr. Stephens do any act to delay or
hinder the voters from voting. Ans. No-, sir ; I did not.

8th. Ques. (By same.) State as to your conduct during the day. Ans. I voted them
all that were entitled to vote, I found all the names, with the exception of one party whose
name I could not find; I looked for his name three or four times ; I don't remember his
name at this time ; Mr. O'Neil helped me to look for his name also ; I don't think it was in
the books.

9th. Ques. (By same.) State ivhether or not you consumed more time than was neces-
sary in finding the names of the colored voters. Ans. No, sir ; I did not. I voted them as
fast as I found their names. I put the regular questions to them. I ask them where they
lived and such as that.

18th. Ques. (By same.) What was the conduct of Mr. Holmes, the Republican supervisor,
during that day ? Ans. It was right bad. He objected to four or five things there about
challenging votes.

19th. Ques. (By same.) Did you see him do anything else; if so, please state it % Ans. He
got up there and read some law he got from Mr. Pleasants, I think; this took up about five
or ten minutes ; this was when Judge Waddill was present.

20th. Ques. (By same.) You liave stated that he objected to voters being challenged; do you
mean that he disputed the right of the challengers to challenge votes? Ans. No; when
anybody was on the disfranchised list and the challengers would challenge him, Mr. Holmes
would say that that ivas not the man, or something like that.

21st. Ques. (By same.) Do you know hoio Mr. Holmes could tell whether the man offering
to vote was the party who was disqualified f Ans. I suppose he would take the voter's tvord
for it after he would sivear him.

22nd. Qnes. (By same.) Do you know whether he had any other means for knowing Titm?
Aim. \n. sir ; [ do not.

23rd. Qiti'H. (Hi/same.) How long hare you lived in Jackson ward? Ans. About 23 years.

H. Mis. 137 1C

242 WADDILL VS. WISE.

It appears from this evidence that the Democratic judges were guilty
of no improper conduct ; that they were as expeditious as possible, and
that whatever unusual delay there may have been was Caused by the
Republican Federal Supervisor Homer and by the contestant himself.

FOURTH PRECINCT.

So far as the fourth precinct is concerned there is no evidence what-
ever worthy of consideration attacking the conduct of the judges.
There is evidence to show that the Democratic Federal supervisor was
drunk and was disposed to give trouble, but no evidence that he in any
way prevented any one from voting or that he obstructed the reception
of the ballots.

Having now, we think, successfully disposed of tbe charge against
the Democratic judges of election at the three precincts in Jackson
ward, not only by the judges themselves, but by the clerks and other
witnesses, and shown that, whether intentionally or not, the Republican
Federal supervisors at the various precincts, and the Republican judge
at one, caused and promoted delay and hindered and obstructed the
voting, we pass to other questions.

CHARACTEE OF THE VOTERS IN JACKSON WARD.

The colored vote in this ward is, as compared with the white vote, at
least three to one.

The colored registration-books contain the same names many times.

It is a well-known fact that negroes are hard to identify, and that
it requires perfect acquaintance and long familiarity with them to dis-
tinguish one from another.

Then when a man presented himself at the polls and his name ap-
peared on the registration books many times, it was absolutely neces-
sary to closely inquire as to bis identity in order that his name might
be checked on the registration-book, so as to prevent the reception of
an illegal vote as well as fraud upon some other voter.

Again, under the laws of Virginia, conviction of petit larceny or fel-
ony works a disfranchisernent of the convict. By reference to the record
it will be found that the names of over 2,000 colored men stand upon
the disfranchised lists of the police and hustings courts of the city of
Richmond.

Under the statute the clerks of the courts are required to furnish the
judges of election with these disfranchised lists.

An examination of these lists, which were in the hands of the judges
of election in Jackson ward, as well as other wards, will show that about
ninety names appear about five hundred times on them, or more than
five times each on an average, while very many more appear two and
three times each.

The judges of election then, in order to protect the ballot-box from tbe
votes of thieves and felons, were compelled to look carefully to these
lists.

Not only was it the province and duty of the judges o election to
closely scrutinize the registration books and the disfranchised lists, but
it was the right of the Democratic challengers, not only in order to
project their party against such votes, but as good citizens it was their
duty to guard the ballot-box against pollution, by vigilantly observing
that no man not properly registered and that no man who had been
disfranchised should exercise the high privilege of voting.

WADDILL VS. WISE. 243

This, then, leads to the inquiry whether the Democratic challengers
were guilty, as charged, of delaying and hindering voters by unreasona-
ble challenges and unnecessary and frivolous questions.

B. C. STOKES, Republican judge, testified :

20 Q. Repeat as near as you can the kind of questions they (the Democratic chal-
lengers) would ask them (the voters)? A. How old are you; what is your age;
where do you live; what street; number; whether they lived in Chesterfield or
Henrico Counties; how long they had been living in the State.

B. C. SCHUTTE, clerk, testified :

One of the principal grounds of challenge was as to their moving from one place to
another ; the next ground was they had a printed list of the disqualified voters from
the hustings and police courts of the city.

The Democratic challengers did no more challenging than they ought to have done
on this occasion.

SPENCER JOHNSON (colored), witness for contestant, testified : He did not see any-
body obstructing the voting that day.

OssoiiN HOLMS (colored), witness for contestant, testified that the questions asked
were as to his age, residence, and occupation, and whether he had been disfranchised.

WESLEY HARIUS (colored), witness for contestant, testified : He did not see the
Democrats do anything that he thought was wrong ; that he had been living in the
precinct fifteen years, and that to his knowledge the elections had been fairly and
honestly conducted.

GEORGE DUNCAN (colored), witness for contestant, testified :

Ques. Did you see the Democrats do anything that they ought not to have done ?
Ans. Not a thing, sir; not a thing in the world.

JOSEPH BAKER (colored), witness for contestant, testified :

Ques. Was there any obstructions or molesting of voters ? Ans. I did not see any.

GILLIAM JONES (colored), witness for contestant, testifies :

Ques. On what ground were you challenged ? Ans. Because they said I did not
have the right number. I was registered at 415 Baker street and gave 515 West
Baker street.

JAMES R. GROSS (colored), witness for contestant, testified:

10th. Ques. Were you challenged by any one on the outside? Ans. No, sir. I of-
fered to swear by my ballot, and Mr. Belvin told me to get away ; that my name was
not on the book.

llth. QiU's. Was he on the inside ? Ans. No, sir; he was standing right by me.

12th. Ques. In answer to a question put to you by Mr. Allan you said a gentleman
inside the room challenged your vote. How is it that you now tell us that Mr. Belvin
on the outside told you that your name was not on the book and to stand aside ? Aus.
When I went to the window to hand my ballot to the gentleman he takes my ballot
in his hand. Some one inside says my name wan't there on the book, and that I did
not belong to that number. I asked them please to swear me ; then Mr. Belvin told
me to get away, my name was not there.

W. C. WILKINSON testified :

10th. Qus. Did you recognize any persons there who were acting as Democratic
challengers; if so, give their names? Ans. Mr. Glazebrook, I don't know his first
name ; Mr. C. V. Meredith, I think ; Mayor John Hunter, and several others, I can
not recollect their names. I think Rand Tucker was there awhile.

llth. Qus. Were those gentlemen there during the whole of the day of election ?
Ans. I think not, some at one time and some at another; they would relieve each
other.

12th. Qus. State what these parties were doing when you saw them at that pre-
cinct. Ans. They were challenging votes; some on convictions, and some on wrong
residence. Some voters when offering to vote gave their names, and when asked the
number of their residences would hold up a little strip with the street and number
on it, without giving the street and number.

13th. Qus. Did you hear any challenges for causes other than you have stated ?
Ans. I don't recollect. There may have been others.

14th. Qus. You have referred to a convicted list ; explain particularly what you
mean by that. Ans. I mean the pamphlets furnished by the courts ot'disfrancbise-
ments.

15th. Qus. Were these pamphlets of which you speak in the hands of challengers ?
Ans. Yes, sir.

16th. Do I understand you to have said in answer to former questions that the

244 WADDILL VS. WISE.

challenges were when the person offering to vote gave a residence different from the
one appearing on the registration book, or when his name appeared on the list of
persons disfranchised on account cf conviction for crime? Aus. When the name of
person offering to vote appeared on the disfranchised list he was then challenged un- .
til the matter could he looked into as to whether he was the man on the list or not.
When the judges were satisfied that he was not the man he was permitted to vot<:.

17th. Qus. How did the judges satisfy themselves when there was a challenge on
account of conviction? Ans. Different ways ; sometimes in the discrepancy of age,
number of years of residence, and date of conviction.

18th. Qus. Have you 6A r er been connected with the police court of the city of Rich-
mond? Ans. Yes, sir; four years as bailiff of that court.

19th. Qus. State whether or not that disfranchised list of which you have spoken
is a large or small one. Ans. Very large one.

20th. Qus. State whether from your experience as a policeman you have had occa-
sion to go amongst the colored people of Jackson ward to obtain information or to
find colored men there. Ans. Yes, sir ; I have.

21st. Qus. What is your experience iu getting information of one colored person as
to the whereabouts of another ? Ans. It is almost impossible.

22nd. Qus. State what is their habit as to residence ; I mean whether they change
frequently or not. Ans. As a general rule they do.

23rd. Qus. Yon have told me that you were connected with the police court for
about four years, and for a long number of years connected with the police force of
this city ; give me your opinion as to the necessity of a close canvass of Jackson ward
in the inteiest of a fair election. Ans. I think it absolutely necessary to come at any-
thing like a fair election.

24th. Qus. Did you hear any questions asked by Democratic challengers on that
day which you thought to be unnecessary and uncalled for; if so, state them. Ans.
I did not ; I thought the questions Avere very reasonable and conservative.

25th. Qus. Were you during any portion of the day of election near enough to the
polling window to observe and hear what passed there ? Ans. I was ; but did not
take any notice of anything on the inside, as there was nothing which attracted my
attention particularly on the inside.

2Gth. Qus. Were you not near enough to hear and see the challengers and voters
at the window? Ans. Yes, sir; near enough to touch either of them most of the
time.

EDWARD L. C. SCOTT testified :

7th. X Question. (By same.) Was Mr. Douglass' vote challenged ? Answer.
There was some controversy, but after a full explanation his ballot was cast, the
judges being satisfied that he was entitled to vote.

8th. X Question. (By same.) Did you hear the controversy? Answer. Some
portions of it.

9th. X Question. (By same.) Did you hear enough of it to find out what the real
question in controversy was? Answer. I heard Mr. Douglass tell the judges that he
lived on this side of the C. and O. railroad tracks, which is the boundary line of Ash-
land precinct ; I mean the side next to Ashland.

W. H. MASSEY(colored), witness for contestant, testified:

llth. Ques. Tell all that happened after you got to the voting window? Ans. When
I got to the voting window my name was called by some one ; I don't know who. I
told the gentleman what my name w r as. Mr. Belvin said you don't live at 311 West
Duval st. I told him yes, 1 did live there. Some one said my name was not on the
books.

12th. What did the judges of the election say? Ans. They give my ticket back
and told me to stand aside.

13th. There are three judges of election and two clerks. Was nny vote taken on
your right to vote ? Ans. All they said to me was to stand aside ; I could not vote.

14th. Ques. I am speaking of the judges of election. Now you understand. Do you
refer to them when you say they told me to stand aside? Aus. The man that took
my ticket told me to stand aside.

15th. Ques. Where did that man stand ? Ans. He was inside of the window.

GEORGE LYNCH (colored), witness for contestant, testified:

1st. Qu. Tell all that took place between you and the man you handed your ticket
to at the window. Ans. I handed the ticket to the man and he asked me what my
name was, and I told him George Lynch ; he said he could not find my name on that
book he had; he told me to go back to the house and get the number I voted from on
Brooke avenue; I went and got it and did not get to the polls any more.

2nd. Qu. (By same.) Were yon sworn ? Ans. No, sir.

3rd. Qu. (By same.) Who told you to stand aside? Ans. I don't know his name,
hut it was the gentleman who took my ticket.

WADDILL VS. WISE. 245

4th. Qu. (By same.) Were yon told to stand aside so that somebody else could
vote? Ans. No, sir; he just told me to get my number and come back.

RICHAIID TAYLOK (colored), witness for contestant, testified :

5th. Question. (By same.) Why were you not allowed to vote; .and is there any-
thing else that you could have done that you did not do to have enabled you to vote ?
Wbat ticket would you have voted who for President and who for Congress? .

(Excepted to on the ground that it assumes matter that has not been testified to
by the witness, and also on the ground that it is not competent to ask a witness what
ticket he would have voted.)

Answer. When I got to the window I handed the man my ticket, and he looked on
the book and said my name wa'n't on the book. My ticket was handed, back to me
aud I was told to stand aside. I went away in half an hour. I would have voted
the Republican ticket. I would have voted for Harrison for President, and Waddill
for Congress.

MINOR JOHNSOX (colored), witness for contestant, testified:

8th X Q. You say Mr. Belyiu challenged your vote, and that at the time he simply
said ho objected to your voting. What else took place at that time ? Ans. Well, the
clerk said that he had some two or three Minors there, and Minor Johnson was not ou
the book.

9th. Q. Wbat clerk told you this? Ans. I disremember the clerk's name.

10th. X Q. Was it the clerk of election who held the registration book of colored
voters? Ans. Yes, sir; I think it were.

llth. X Q. Did Mr. Allan pull you out of line immediately after the clerk told you
this ? Ans. No, sir ; I was willing to swear my name.

12th. X Q. Whpt hour did this happen ? Ans. About 11 o'clock.

13th. X Q. Do you mean to say that Mr. Allan did not pull you out of line ; or did
any one do so? Ans. He did pull me out.

14th. Q. Did you resist? Ans. Well, I don't know.

15th. X Q. Lid you quietly submit to being pulled out of line? Ans. I did, sir.

16th. X Q. Why did you submit? And if you were willing to give up your right
to vote, why did you not stand aside yourself/without being pulled out of line? Ans.
Because I thought it was right after he pulled me. I didn't stand aside myself be-
cause they objected to swearing me.

17th. X Q. Had you ever met Mr. Allan before? Ans. I had not, to know him.

16th. X Q. Would you have allowed any one else to have pulled you out of line?
Ans. I don't know, sir. I couldn't tell.

19th. X Q. Why did yon allow Mr. Allan to do so? Ans. Well, I didn't know Mr.
Allan any more than any other man at that time.

WHITKIELD STEWART (colored), witness for contestant, testifies :

1st. Qu. When you handed your ticket to the judge of election and told him that
your name was Whitfield Stewart, and he then told yon that there was no such name
as Whitlield Stewart on the books, did he tell you to stand aside so that somebody
else might come up and vote ? Ans. Yes, sir.

2nd. Qu. (By same.) Did anybody else have anything to say to you there besides
the judge of election? Ans. No, sir.

3rd. Qu. (By same.) Did you see anybody there who seemed to be interfering with
the voters ? Ans. There was some interruption ; more than I thought was necessary.

4th. Qu. (By same.) Who was doing this? Ans. I don't know. I was iu a strange
place up there.

GEORGE MIMMS (colored), witness for contestant, testified :

34. X Ques. Did you see any intimidation, terrorizing, or bulldozing about the polls
that day ? If so, tell just what it was and who was doing it. Ans. No, sir ; I did not
pay any attention ; I did not see any of it.

OLIVER BROWN (colored), witness for contestant, testified:

12th. X Q. While they were so looking for your name did the man who had taken
.\ our ballot stand at the window with it iu his hand waiting for them to find it ? Ans.
One was holding it and waiting at the window.

loth. X Q. Did anybody pull you from the window, or did you get aside yourself?
ADS. The crowd shoved me and told me to get away, and I got aside myself. Nobody
pulled me away.

14th. X Q. Did you see the gentleman at the window put his head out and urge the
crowd to stand back and tell them that if they did so they could vote faster? Ans. I
didn't hear him say that while I was there.

15th. X Q. Did you hear some colored men on the outside urge the colored voters
not to push and crowd so, and that if they would not they could vote faster? Ans.
Yes, sir.

246 WADDILL VS. WISE.

We give now in extenso the testimony of H. M. Smith, jr., who was
one of the principal Democratic challengers in Jackson ward and
we invoke a careful reading of it :

5th. Ques. (By same.) State, as well as you can, what you did there on that day.
Ans. When I got there there were some 600 or 800 negroes and 8 or 10 white men, pos-
sibly more, counting policemen and deputy marshals, who were not always on the
spot. When I walked up I was greeted by Major Miles Cary, who I afterwards
learned had charge of the Democratic forces, of the Democratic challengers and run-
ners, at that precinct, who said, ''lam very glad you came, ami would be very glad
if you would help Mr. Belvin as challenger at the window ; " which I proceeded to
do, and in which capacity I continued during the day.

6th. Ques. (By same.) About how far were you, as a general thing, from Mr. Bel-
vin ? Ans. I presume from 6 inches to two feet; I might say from J of an inch to two
feet, to be more exact.

7th. Ques. (By same.) From the time you got there until the polls closed, who did
the challenging? Ans. Either Mr. Belvin or myself ; no one else that I can think of
on the Democratic side.

8th. Ques. (By same.) Did Mr. Belvin, while he challenged, have any book in his
hand ? If so, what was it ? Ans. He had the usual challenger's book, which was an
alphabetical list of the colored voters in that precinct, it being a copy of the colored
registration book which had been verified as far as possible by the Democratic can-
vassers ; I mean by verified that the canvassers had made an effort to ascertain
whether the voters lived in the houses or at the places where they were registered
from.

9ih. Ques. (By same.) State, as well as you can, the grounds of challenge made by
you or Mr. Belviu. Ans. There were several grounds of challenge: First, on account
of the voter's name being called out by himself different from what it was on the reg-
istration books ; second, his age being different ; third, his residence being different;
fourth, his name being on the disqualified list.

10th. Ques. (By same.) State as well as you can the questions that were asked
upou the respective grounds of challenge. Ans. When a voter came up to the polls
he would call his name out ; we would then look on our challenging book to see if he
was registered ; if the name was not on the registration book, it, of course, needed no
challenge to keep the man from voting ; but sometimes there was a name on the reg-
istration book, not the name given by the voter, but bearing some similarity to it ;
we would then call the judges' attention to the difference, that they might be satisfied
that he was the same man whose name was registered ; one of the ways of ascertaining
this fact was to ask him his age, his occupation, and his residence. Again, a voter's
naue would be all right, but on challenge book would show that the canvasser had
ascertained and made a memorandum of the fact that the voter did not live in the
house to which he was credited ; in such instances we would ask him where he re-
sided ; if he gave a residence different from the registered one, but within the pre-
cinct, we made no further objection ; if without the precinct., we challenged him.
Again, we frequently found the voter's name on the disqualified list, in which case
we challenged on that ground, and would require the voter to purge himself, unless
soruo of the judges or reputable Republicans were satisfied or assured us that it was
not the same man. The questions which we asked, of course, varied with the different
circumstances, but they were asked and were calculated to elicit the different phases
above enumerated.

19th. Ques. (By same.) Several witnesses called on behalf of Judge Waddill have
testified that both you and Mr. Belviu asked of the voters silly and unnecessary
questions, some of which were as follows : " Who owned yon before the war ?" ' ' Are
you married ? How many children have you ?" State whether or not yon asked any
such questions yourself, or heard Mr. Belviu ask any such. Aus. No, sir ; there were
no such questions asked of any voter standing ready to vote, and the judges and
supervisors would not have allowed it. The Republican supervisor, Mr. Duncan,
even went so far as to object to our asking what I conceive to be legitimate, relevant,
and necessary questions. There was a good deal of pleasantry going on during the
day back from the window between Mr. Belvin and myself on" the one side, and Mr.
Edgar Allen, Mr. Rockcharlie, Mr. Powell, and Capt. Ben. Scott on the other hand,
during any intermission or lull in our work, and I have no doubt that if there are
any witnesses who honestly and truthfully testified that such questions were asked
got their impression from what was said while we were off duty, so to speak.

20th. Ques. (By same.) It has also been testified that useless questions were asked
as to the voter's age, old men and men in the prime of life being asked whether they
were 21 years of age. State what you know about that. Ans. I am certain that no
such questions were asked of any such voters; I think though that I can give the
grounds for that impression, and if my memory serves me right, I think some of the
witnesses have admitted that it is from this source that I am about to explain that

WADDILL VS. WISE. 247

they got their impression ; I refer to the oath which the voter is required to take iu
the nvent he is challenged, which oath is to the elfect that is 21 years old, aud is the
identical person he represents himself to be, etc.

21st. Ques. (By same.) You have mentioned the names of Mr. Allen and Mr.
Rockcharlie ; please state their position in relation to Mr. Belviu during the day.
Aiis. They stood immediately behind him and were looking at his book most of the
time.

WILLIAM J. STEVEXS, judge, testified:

21st. Ques. (By same.) State, as well as you can, the nature of the questions
asked to the voters when challenged upon the diiferent grounds. Ans. They were
only those allowed by law, as to their age, residence, and occupation. I remember
no foolish or silly questions being asked at all.

22nd. Ques. (By same.) When challenged upon the ground of being on the dis-
qualified list what was the nature of the questions then ? Ans. If they were the par-
tics whose name appeared on that list.

23rd. Ques. (By same.) Did you hear or not any question asked of the voters such
as, ''Who owned you before the war"? "Are you married"? "How many children
have you" ? Ans. None that I remember at all.

24th. Ques. (By same.) What position did the Democratic challengers occupy as to
the window? Aus. Coming from the north they were to the left of the window, that
is, to my right hand.

25th. Ques. (By same.) To which side were the colored voters? Ans. They were
to my left.

26th. Ques. (By same.) How much of the window did the Democratic challengers
occupy ? Ans. I suppose about one-third of it.

27th. Ques. (By same.) Did they or not prevent the colored voters from getting to
the window to vote ? Aus. They did not.

HEXRY W. RUFF, judge, testified:

12th. Ques. (By same.) Could you hear or not what took place at the window
but ween the judges, the challengers, and the voters? Ans. I could hear a good deal
of it.

13th. Ques. (By same.) State as well as you can what were the nature of the
questions asked during the day by the Democratic challengers. Ans. If they found
them on the disqualified list they would ask them if they had ever been found
guilty of anything. I don't remember any other kind of questions.

14th. Ques. (Bysaine.) Did you hear any challenged on the ground of residence?
Ans. Yes, sir; two or three, I reckon; 1 can't say how many.

15th. Ques. (By same. Did all the colored voters that oft'ered to vote give correctly
the number of their residence? Aus. No, sir; I don't suppose one-half of them did.

10th. Ques. (By same.) When a wrong residence was given were any questions
put to the voters; and, if soy what were the nature of them? Ans. If they gave the
wrong number I would look in the book and see what was the number in the book,
and 1 then would ask them if they ever lived at the number on the book.

17th. Ques. (By same. ) Did you hear any question asked of the colored voters,
as has been charged by several of the colored men, as follows : As to who owned him
before the war? Whether he had any children, and how many he had? Ans. No,
sir; I did not hear anything like that.

W. L. TIMBERLAKE, judge, testified :

42nd. X Ques. About what proportion of the colored voters were challenged and
sworn ? Ans. I can't tell you ; I give you a rough calculation; I think about one in
twenty-five or something of that kind ; sometimes eight or ten would be challenged
aud sworn right straight along, and then there would be fifteen or twenty, and per-
haps thirty or more, and no one would be challenged.

JAMES H. BRIGGS (colored), witness for contestant, testified :

28th. X Q. How far were you from the challengers that day? Ans. Sometimes I
was within 2 or 3 feet of them ; sometimes further.

2 ( Jih. X Q. Please state some of the questions usually asked a voter by the chal-
leugcrs. Ans. Asked them their names ; where do you say you live; what is your
unrulier; did you say 1714? No, sir; I said 1417. Ever been to jail; wasn't you ar-
rested for stealing last year ; what did you say your name was, John Robinson ; how
you spell it? Robtsou. Did you sayRobson? No, sir. Well, didn't you nse'd to
live at number 506 ? No, sir. Well, hero's another man the same name, I think that
must be you. And all sorts such questions as that they would ask; more so on that
day than I have ever known.

30th. X Q. Do you think that the questions that you have given above fairly illus-
trate the character of questions asked of voters on fast election day? Aiis. Yes, sir;
to the bust of my judgment.

243

WADDILL VS. WISE.

We have now given the testimony of twenty-two witnessess, colored
and white, including- judges and clerks of election and Democratic chal-
lengers, and this number could be largely increased if we thought it
necessary, as to the nature of the challenging and the character of the
questions propounded, and it is hard to believe that any unbiased mind
could read this testimony without being impressed with the fact that
the challenges were proper, and conducted simply with a view of elicit
ing the truth and preventing illegal votes from being cast.

According to all this testimonj' not a frivolous or unnecessary ques-
tion was asked.

The voters were interrogated as to their ages and residences, for the
purpose of ascertaining whether they were the persons registered and
whether they had been convicted of petit larceny or felony, to ascertain
whether they were the parties under the same names on the disfran-
chised lists.

It seems to the minority of the committee that to hold that these
challenges were unjustifiable would be to deter electors from guarding
and protecting the ballot-box in the future from frauds and wrongs
which, if permitted, would convert elections into a sham and a farce.

A critical examination of the testimony of the colored voters who
were as alleged deprived of the right to vote will furnish the strongest
reasons for the closest scrutiny of this class of voters. It will be found
that large numbers of them in their testimony swore most recklessly
and in answer to leading and suggestive questions, which seem to have
been stereotyped by the contestant, absolutely perjured themselves.

"Many of them, too, while swearing that they were qualified voters,
made statements at variance with that fact.

Our conclusion is, that the charge that the democratic challengers
were engaged in a conspiracy to defraud the colored voters of their
right to vote and that they did unnecessarily and fraudulently obstruct
and hinder them is not sustained.

COMPARATIVE VOTES IN JACKSON WARD.

The number of votes cast at the first, third, and fourth precincts of
Jackson ward at various elections was as follows :

Precinct.

1884 (Pres-
idential).

1886 (liquor
license).

1886 (muni-
cipal).

1880 (house
of
delegates).

1886 (Pres-
idential).

254

282

270

638

431

Third

782

681

639

754

57f>

Fourth

820

742

730

768

718

1,856

1,705

1,639

2,100

1, 72-1

In the five elections the average vote in the three precincts was 1.816,
or only 92 votes more than in 1888.

In each precinct the average was as follows :

First precinct 375, or 56 less than in 1888.
Third precinct 686, or 111 more than in 1888.
Fourth precinct 755, or 31 more than in 1888.

CALL OF CONSTITUTIONAL CONVENTION.

Article 12, section 2, of the constitution of Virginia reads as follows:

At the general election to be held in the year 18C8, and in each twentieth year
thereafter, and also at such time as the general assembly may by law provide, the
question " Shall there be a convention to revise the constitution and amend the
same?" shall be decided by the electors qualified to vote for members of the
assembly.

WADDILL VS. WISE. 249

In pursuance of this constitutional requirement the general assembly
of Virginia at its session 1886-'87 passed the following act :

Be it enacted by the general assembly of Virginia, That at the general election to be
held for the election of Representatives in Congress and electors for President and
Vice- President of the United States, on the first Tuesday after the first Monday in
November, 1838, as required by the constitution of Virginia, there shall be submit-
ted to the electors qualified to vote for members of the general assembly tho question
' Shall Ihere be a convention to revise tbe constitution and amend the same f"

('2) The judges of election at each of the several voting places in this State are
hereby required to provide a ballot-box separate from that in which are to be depos-
ited the ballots cast for Representatives in Congress and electors for President and
Vice- President, in which separate ballot-box so provided the judges of election shall
deposit the ballots of all qualified voters voting upon the question of a convention to
revise the constitution and amend the same. Said separate ballot-boxes shall be pro-
vided as ballot-boxes for other elections are provided.

(:!) The ballots to be used in said election shall be separate from the ballots cast
fur Representatives in Congress and electors for President and Vice-President, and
shall be, respectively, as follows: "For Constitutional Convention " and "Against
Constitutional Convention."

(4) The manner of receiving and canvassing said ballots and making returns and
abstracts thereof, shall conform in all respects to the requirements of the general
election laws of the State.

Under this act it was the duty of the judges of election to furnish
electors with ballots when requested, and the judges of election in Jack-
sen ward were simply discharging their sworn duty when they fur-
nished ballots to those who desired them.

It was also the duty of the judges to explain the object and purpose
of the ballots tendered if desired, and if they had failed they would
have been derelict.

Now if the votes in the three precincts of Jackson ward were not as
large as the contestant contends they ought to have been, this resulted
necessarily to some extent from the delay caused by the submission of
this question to the people at that election.

In conclusion, we submit:

First. That the judges of election were guilty of no wrong-doing ; that
all they did was strictly in the line of their official duty.

Second. That the Democratic challengers were not guilty of fraudu-
lently, unlawfully, or unnecessarily hindering or obstructing the voters
in casting their ballots.

Third. That while there was some unnecessary delay and some votes
were probably lost to the contestant, it was the result of the tardiness
of the Republican judge at the first precinct in finding the names of
voters on the registration book and the conduct of the Republican Fed-
eral supervisors at the first and third precincts.

Having thus reported our conclusions on the facts contained in the
record, we proceed to an examination of the decisions of the courts and
the House in similar cases.

The court of appeals of New York in Hart vs. Harvey, 19 Howard
Pr. Reports, page 252, had before it the express question whether a
vote not cast could be counted for the candidate for whom the voter
intended or desired to vote, and uses the following language :

The result of the election must be determined by the vote cast. If illegal votes can
be ascertained they may be rejected ; but votes not received can never be made
available in favor of either party.

The supreme court of California in passing upon the same question,
in Webster vs. Byrnes, 34 Gal., page 276, say :

Tho court below erred in counting for contestant the supposed votes of Gonsalves,
Larkin, and Haas, under the pretense that they would have voted for him had
they been allowed to vote. In all contests of this character the question is, Which

250 WADDILL VS. WISE.

candidate received the highest number of legal votes? The idea that the supposed
votes of persons who did not vote, but who could have voted had they taken the
necessary legal steps to entitle them to do so. should be counted for the candidate for
whom they would have voted, is simply preposterous.

The supreme court of Alabama in the case of the State ex reJ^ Spence
vs. The Judge of the Ninth Judicial Circuit, 13 Ala., page 811,* say :

Smoot offered to vote at the election, but his vote was pot received, and he would
have voted for Spence. * * * It is perhaps unnecessary to inquire whether tLe
managers should have permitted Smoot to vote or not, for he did not vote, and even
if his vote could have had any influence in changing the result of the election, as in
fact it was not given, it could only have authorized the circuit judge to have declared
the election void, but could not authorize him to count it as actually given to Spence.

To the same effect see Newcum vs. Kirtley, supreme court of Ken-
tucky, reported in 13 B. Munroe, page 515.

It will thus be seen that the highest courts in the States of New York,
California, Alabama, and Kentucky have held that even though a legal
voter should tender his ballot to the managers of the election, and they
should reject the same, yet such vote could never be counted for either
party. The fact that the vote was illegally rejected, and that the voter
declared under oath for whom he intended and desired to vote would
not authorize the tribunal that must ''judge" of 1 he election to count such
vote, the election must be determined by the votes actually cast; and
if it appear that a sufficient number of votes to change the result were
unlawfully or improperly rejected, the effect would be to render the
election void. The undersigned have not had their attention called to,
nor are they aware of any decision of any court in any of the States, or
of the United States, which establishes or maintains any other or dif-
ferent rule from that here laid down.

The first case reported to the House of Representatives in which the
coutention.was that votes not cast should be counted was the case of
Biddle and Richard vs. Wing, at the first session of the Nineteenth Con-
gress. In that case the committee say :

Mr. Richard rests his claims to the seat on grounds which, to the committee, appear
entirely novel, and, as they do not at all interfere with any of the matters in contro-
versy between the other candidates, will be first examined. Redoes not pretend that
he has received the greatest number of votes that were actually given, but that he
would have received the greatest number of votes had not his friends at the election
holden in the city of Detroit been intimidated from voting by reason of the interfer-
ence of deputy sheriffs and constahles who, it is alleged, under the pretence of keep-
ing the peace, struck several persons on the bead, and by that means prevented them,
and many others, from voting for Mr. Richard. The committee are of opinion that
the duty assigned them does not impose on them an examination of the causes which
may have prevented any candidate from getting a sufficient number of votes to enti-
tle him to the seat. They consider that it is only required of them to ascertain who
had the greatest number of legal votes actually given at the election. An election
is the act of selecting, on the part of the electors, a person for an office or trust. In
case of the application of the contrary doctrine, the greatest uncertainty must neces-
sarily prevail ; and, should it be established, it would be placing in the hands of a
few riotous individuals the power of defeating any election whatever. The law ap-
points a particular time and place for the expression of the popular voice; when that
time is past it is too late to inquire who did not vote, or the reason why. The only
question now to be determined is for whom the greatest number of the legal votes
have been given.

The next case we find involving this question is that of Niblack vs.
Walls, Forty-second Congress. In that case the committee departed
from the rule established in the courts and the report in Biddle & Rich-
ard vs. Wing, and held that votes not cast or even offered to the man-
agers of election might be counted. The facts of the case arc reported
in the following words :

We are satisfied from the evidence that there was an organized effort on the part
of the friends of the contestant to prevent a full vote being cast at this poll for the

WADDILL VS. WISE. 251

sitting member, and that it was partially successful. This conspiracy was carried
out by creating a disturbance at the election by threats of violence and the exhibi-
tion of deadly weapons, and particularly by crowding about 'he polls in such num-
bers as to prevent many colored voters from reaching the polls to deposit their bal-
lots, and with this intent.

The committee then proceed to deny that rejection of the poll would
be a remedy for such wrongs, and say some other remedy must be
found. In these words it is presented :

This is to be found in the rule, which is well settled, that where a legal voter
offers to vote for a particular candidate, and uses due diligence in endeavoring to do
eo, and is prevented by fraud, violence, or intimidation from depositing his ballot,
his vote should be counted. The principle is that the offer to vote is equivalent to
voting.

This report we understand to be directly contrary to the decisions
of the courts, and the only case which had before been presented to the
House, and we are unable to ascertain in what place and before what
tribunal such rule had been " well settled ; " in fact, it appears to have
been set up in the case of Mblack vs. Walls for the first time, without
any precedent to sustain it, and we think an examination of the cases
subsequently decided by this House will show that the rule therein
suggested has never in any single instance been followed.

In Frost vs. Metcalf, reported in 1879, the committee say :

While on this branch of the subject your committee will dispose of the complaint
made by the contestant that by reason of the errors in copying the registration list
he lost many more votes than contestee. To count votes which were never offered
at any poll is ca:rying the doctrine further than we ever knew it. To authorize this
committee to count a vote four things are requisite : first, the person offering to vote
must have been a legal voter at the place he offered to vote ; second, he must have
offered his vote ; third, it must have been rejected, and fourth, it must be shown for
whom he offered to vote.

The case of Yeates v&, Martin relied upon does not touch the question
of counting votes not cast.
In the case of Bisbee vs. Finley, reported in 1882, the committee say :

As a question of law we do not understand it to be controverted that a vote offered
by an elector and illegally rejected should be counted as if cast.

The committee in that case affirm thatach vote counted by it was in
fact by the voter actually tendered to the election officers, and was by
such election officers rejected.

In Sessinghaus vs. Frost, reported in 1883, each vote counted was
actually tendered by the voter to the election officers, and was by the
election officers rejected.

Bell vs. Snyder, reported in 1874, was based on a failure to open the
polls until three hours after the appointed time, and is no authority for
counting votes not cast. Thus we see the House has never followed
the rule suggested in Mblack vs. Walls ; that rule is not well settled,
and has never been established in this House. In Frost vs. Metcalf the
House expressly refused to follow it, and the rule prescribed in the
latter case has ever since been recognized as the correct one. There are
objections even to the rule as there laid down; any extension of it is
fraught with difficulties and dangers, and until this time, since the re-
port in that case, no committee of this House has ventured to depart
from it.

The majority of the present committee and the majority of this House
in the case of Mudd vs. Compton, just decided, failed and refused to
conform to or apply the rule laid down in the case of Niblack vs. Walls,
which it is now sought to enforce. It was claimed in Mudd vs. Couip-
tou, that a sufficient number of legal voters to have changed the result

252 WADDILL VS. WISE.

had they voted were standing in line at the polls for the purpose and
with the intention of voting for contestant : but were prevented from
doing so by intimidation; and yet the committee did not count such
votes as cast it reported in favor of rejection of the polls, and the
House, after full discussion, adopted such report.

The act of Congress referred to in the report of the committee refers
only to qualification of voters and not to the act of voting. The citations
from McCrary, and Paine on elections, referred to in the report of the
committee, are based upon the decisions of the House herein reviewed,
and as we have shown are not sustained by any of the cases referred to
except Niblack vs. Walls, which is a departure from and contrary to
the established rule and which stands alone, unsupported, so far as we
have been able to learn, by a decision of any court or of any legislative
body in this country.

It seems to us that the rule contended for by the majority in this case
would open wide the door for fraud and invite false swearing, which the
opposing party would have no means of refuting. To hold that anything
short of an actual tender of the ballot to the election officers and a re-
jection by them was an offer to vote, would be a most dangerous and
uncertain rule and one to which we can not give our sanction. Where
the evidence plainly establishes the fact that a legal voter offers his bal-
lot to the election officers and they unlawfully reject the same, under
the precedents heretofore established such vote may be counted for the
candidate for whom the voter offered to vote. Conceding for the pur-
pose of the argument all that is claimed by the contestant in this case,
to wit, that by fraud and intentional hindrance and delay a large num-
ber of voters who intended to vote for him were unable to reach the
poll to tender their ballots, although they used diligence ; that when
the polls closed a large number of voters present on the ground desiring
to vote for him had for such reasons been unable to do so, and that
thus a sufficient number of voters were prevented from voting to have
changed the result bad they succeeded in voting; still, inasmuch as
there was no actual tender of their votes and rejection thereof by the
election officers, such votes can not be counted for contestant; they
have not -been offered and rejected, and the most that can be claimed
under this assumed state of facts is that there has been no fair and full
election within the meaning of the law, and that neither party shall be
adjudged entitled to the seat.

In the case before us we have before said we do not believe there was
any considerable obstruction of the voters in their rigiit to vote ; but it
appears that at the time the polls were closed at 3 precincts of Jackson
ward there were a number of voters present at each polling place desir-
ing and intending to vote who were prevented from doing so through
no fault of their own, and it is possible that such voters were sufficient
in number to have changed the result had they all voted for the con-
testant. Under these circumstances we have been somewhat embar-
rassed to determine what recommendation we should make to the House.
As we have shown, under such a state of facts, the courts determine the
result by the vote actually cast. The enforcement of that rule in this
case would give the seat to the sitting member.

But we are not satisfied of the justice of such rule. While it is true
that neither the contestee nor his partisans can justly beheld responsi-
ble for the failure of any of the voters to exercise their right of suffrage
yet we believe that some were deprived of the opportunity to vote and
that the number might have been .sufficient to change the result, and
so believing in the interest of fair pby and complete justice we are

WADDILL VS. WISE. 253

Dot inclined to hold the contestant responsible for the inefficiency of
the Republican judge or the conduct of the Republican Federal super-
visors, but are of the opinion that the ends of justice will be subserved
by remitting the election to the people of the district who can, unem-
barrassed by the constitutional convention question, freely declare their
choice, and we therefore submit the following resolution :

Resolved, That the seat now held by George D. Wise as theRepreseu-
tative in the Fifty-first Congress from the Third Congressional district
of Virginia, be, and the same is hereby, declared vacant.

CHARLES F. CRIS^.

CHAS. T. O'FERRALL.

J. H. OUTHWAITE.

E. P. C. WILSON.
LEVI MAISH.
L. W. MOORE.

JOHN V. McDUFFIE vs. LOUIS W. TUEPIN.

FOURTH ALABAMA.

The issues in this case are almost entirely questions of fact, about
the only legal questions involved being as to the admissibility of testi-
mony and the weight of evidence.

Contestant charged that in a large number of precincts throughout
the district the officers of election fraudulently counted thousands of
votes for contestee which were in fact cast for contestant. The com-
.mittee find the charge sustained by the evidence, and that to count the
vote as proved to have been cast would make a change of 17.634 votes
in favor of contestant. The minority find fraud proved in eight or nine
precincts, and by restating the vote of these precincts according to the
evidence, and counting a number of precinct returns not counted by the
county canvassing boards, make a change of 4,049 votes in favor of
contestant. This being less than the majority returned, and the evi-
dence being insufficient to sustain the charges of fraud in other pre-
cincts, the right of contestee to the seat is sustained.

The resolutions presented by the committee were adopted by the
House June 4, 3890, by a vote of 130 to 113. and Mr. McDuffie was
sworn in. The debate will be found on pages 5512 to 5601 of the
Eecord.

(1) Returns. Their weight as prima facie evidence.

In considering the evidence with reference to particular precinct re-
turns it is first necessary to inquire by whom the election was held in
order to determine what weight should be given to the returns. Eeturns
are, as a rule, prima facie evidence of the result; but if the integrity of
the inspectors is in any way impeached, either by showing that their
character is such as to cast suspicion on their acts, or that their belief
is that frauds upon elections are justifiable, or that the manner of their
selection was such as to indicate a purpose to procure a false statement
of results, then the returns lose much of the weight that would other-
wise attach to them.

(2) Conspiracy. Partisan appointment of election boards evidence of.
When the law provides that each of the two political parties shall

have representation on the election board of inspectors it is a provision
to prevent dishonest partisans from making false returns ; and in such

355

256 M'DUFFIE vs. TuuriN.

case the appointment of men incompetent to determine whether the
return is honest or not to represent the party opposed to the appointing"
power, tends to prove an intent to prevent that watchfulness intended
to be secured by the statute, and raises a strong suspicion (if it does
not fully prove) of conspiracy to falsify the returns.

(3) Irregular election. When permissible.

" In extraordinary cases, and where it appears that in no other way
can the actual will of the voter be ascertained, a resort to methods not
technically in accordance with statutory direction may be justifiable,
and upon proof that a full, fair, and honest election has been held by
those only who are qualified voters, under these circumstances the re-
turns from such an election, when duly proved, may be considered and
counted.

None of those guards provided by statute to secure honest results
should be neglected, but when statutory provisions designed to protect
qualified voters in the exercise of their legal rights are made use of with
deliberate purpose to suppress the will of the majority, such action will
be regarded as fraudulent."

(4) Return. Neglect to make.

Voters are not to be disfranchised by any neglect of the officers after
the election if the correct vote can be ascertained.

(5) Evidence. Of vote cast.

The evidence of persons who issued tickets and claim to know that
they were voted is admissible to prove that the vote of a precinct
differed from the return, and if sufficiently clear and convincing may
be conclusive of the falsity of the returns.

MAY 7, 1890. Mr. Bo WELL, from the Committee on Elections, submit-
ted the following report:

The Committee on Elections, having had under consideration the
contested-election case of John V. McDuffie vs. Louis W. Turpin, from
the Fourth Congressional district of Alabama, submit the following
report :

The Fourth district of Alabama is composed of the counties of Dallas,
Hale, Lowndes, Perry, and Wilcox. At the election held November
6, 1888, Louis W. Turpin was the Democratic candidate for Representa-
tive in the Fifty-first Congress, and John V. McDuffie was the Repub-
lican candidate.

The result of the election as certified to the Secretary of State was
as follows :

Counties.

Turpin.

McDuffie.

Dallas

5,705

1,706

Hale

3 170

1 220

2,131

1, 442

2,961

650

Wilcox

4,811

607

Total

18 778

5 625

Turpin 18,778

McDuffie 5,625

Majority for Turpin 13,153

Under this return the contestee received the certificate of election,
and McDuffie contests. Notice of contest was served and answer filed
as provided for by statute covering all matters considered in this re-
port.

With such a returned majority for coutestee, it is apparent either
that this contest is a huge farce, or that this whole district is honey-
combed with fraud.

Before proceeding to consider the evidence in the record of this par-
ticular case, the committee deems it proper to review to some extent
the recent political history of this district.

By the census of 1880 the population of the Fourth district was as fol-
lows :

Co unties.

White. ! Colored.

Dallas . . .

8 425

40, 007

Hale ......

4 903

21 650

Lowndes

5 645

25 528

Perry

7, 150

23, 591

Wilcox

6,711

25, 117

Total . ... ....

32, 824

135, 893

H. Mis. 137 17

257

258 M'DUFFIE vs. TUEPIN.

Upon the assumption that one out of every five of the population is
a qualified voter, this would give in rouud numbers in the district
6,500 white voters and 27,000 colored voters, or more than four times
as many colored as white. The population of the district is compara-
tively stable, and it may safely be assume^ that at the present time the
same relative proportion of white and colored exists, and that the in-
crease of population is no more than normal.

At the State election in 1874 the counties comprising this district
gave a Republican majority of 14.946. This was before the '< revolu-
tion " which placed all political power in the State of Alabama in the
hands of the Democratic party. At the Presidential election in 1876
the Republican electors received a majority of 9,446. At the Con-
gressional election in 1880, for Representative in the 47th Congress,
Charles M. Shelley, Democratic nominee, was declared elected by .a
majority of 2,651 over his Republican opponent, James Q. Smith ; the
vote certified being :

Shelley 9,301

Smith 6,650

Total 15,951

Smith contested, and the Committee on Elections of the House
found (and the House approved) the true vote to be :

Smith 11,507

Shelley 8,704

Smith's majority... 5>,803

This did not include the total vote cast, but was the vote which, in
the opinion of the committee, could be definitely ascertained. Mr.
Ranney, of the committee, stated the vote :

Smith. 11,807

Shelley 8,735

Majority for Smith 3,072

W. J. Stephens, another Republican, received, according to the re-
turns, 1,693 votes, making the total Republican majority 4,766.

In this case, Mr. Smith having died before its final determination,
the seat was declared vacant. Mr. Shelley went before the people again
at the November election, in 1882, as a Democratic candidate for the
unexpired term of the Forty-seventh Congress and for the Forty-eighth
Congress. He received a certificate of election to both and took his
seat at the second session of the Forty-seventh Congress and served
out his term. John W. Jones, his Republican competitor for the unex-
pired term of the Forty-seventh Congress, memorialized the House for
a more speedy method of determining the right to the seat than that
furnished by the statute, the time for taking testimony under existing
law extending beyond the life of that Congress. He alleged frauds
similar to those by which Shelley had obtained his first certificate.
The committee reported in favor of an investigation by a select com-
mittee, but the Congress expired by limitation before action was taken.

George H. Craig was General Shelley's Republican competitor for
the seat in the Forty-eighth Congress ; and although General Shelley's
rights under his second certificate to the Forty-seventh Congress were
never directly determined, the facts as they were developed in the
Forty-eighth fully demonstrated that that certificate was obtained by
the same fraudulent and illegal methods which had given him his first
certificate.

M'DUFFIE vs. TURPIN. 259

Craig contested his right to a seat in the Forty-eighth Congress.
The result of the election, as certified to the secretary of state, was :

Shelley 7,150

Craig 4,435

Total 11,605

Shelley's majority 2,715

The Committee on Elections of the House, a majority of whose mem-
bers were partisan friends of General Shelley, found the true vote to
be:

Craig 10,671

Shelley 7,212

Total 17,883

Craig's majority - 3,450

The remarkable feat of counting Shelley in was accomplished by
rejecting returns made to the various county boards by precinct officers,
on account of supposed technical defects. In arriving at this result
the committee did not include precinct returns, which gave Craig an
additional majority of 1,338. Had these returns been counted, Craig's
majority would have been 4,766. In declining to count these additional
returns the committee uses this language:

It will be observed that the committee has not counted a number of districts which
were returned and not counted by the board of supervisors of the several counties.
This was done out of extreme caution to count no precinct except where there was
oral evidence to sustain the returns of the precinct officers.

Elections were held and returns made, but, out of extreme caution,
the committee did not count them, because contestant had failed to
strengthen them by oral proof. Here was a majority of over 4,000
turned into a minority of over 2,700, and yet the committee add:

It does not criticise the action of the board of supervisors of the several counties
in rejecting these precincts.

The committee, however, reports in favor of Mr. Craig, and adds :

In doing this it has not only followed the precedents established by the House of
Representatives, but the decisions of the supreme court of Alabama.

Tardy justice was done to Mr. Craig, by giviug him the seat to which
he was elected, late in the second session ; but the delay in finally de-
termining the case kept him from prosecuting a contest which he had
commenced in the Forty-ninth Congress.

It will thus be seen that General Shelley was twice certified to the
Forty-seventh Congress, and once to the Forty-eighth, although in
each case he had actually been defeated by large majorities.

In the Fiftieth Congress there was also a contest from this district.
At the election for that Congress the certified result was as follows:

A. C. Davidson, Democrat 14,913

J. V. McDuffie, Republican 3,526

B. F. Turner, Independent Republican 2,517

Total 20,956

Davidsou's plurality, 11,387.

The report in that case, made by the Democratic members of the
committee, cut Davidson's plurality down to 8,890, a deduction of 2,497.
The Eepublican minority of the committee held and reported that a
fraudulent conspiracy existed in four of the five counties in the dis-
trict to defeat the will of the people ; that, had the vote been honestly
counted, McDuffie would have been elected by a large majority, and

260 M'DUFFIE vs. TURPIN.

that by the unimpeached and honest returns of contestant's own
county (Lowndes) he received a majority of 1,625, and was elected.
We shall have occasion to refer to this case later on.

From this account of the action of the election officers and returning
boards of this district it is clearly evident that there has existed a fixed
determination on the part of the Democratic managers there that the
will of the majority should be disregarded, and a willingness to resort
to any methods, however unlawful and criminal, to accomplish the de-
feat of their Republican opponents. The record in this case justifies
and fully confirms the above conclusion, and shows that the same con-
ditions continue to exist.

If the certified returns in this case are true, it follows (allowing
for 500 increase in white voters since 1880, and 2,000 increase in
colored) that all the white voters and at least 11,800 colored men voted
for coutestee, while only 5,625 voted for contestant, and more than
11,500 did not vote at all. That is to say, more than two-thirds of the
colored men who cast their ballots voted for contestee, and 43 per cent,
did not vote at all.

In the light of history, and of that knowledge common to all well-in-
formed men, it is not too much to say that such a report is a self-evident
falsehood, unless there is a present condition of affairs in the Fourth
district of Alabama taking that district out of the rule which prevails
everywhere else.

The record in this case demonstrates its falsity beyond a reasonable
doubt. The evidence in this record, as in other records from the same
district, shows conclusively that the great majority of the colored men
there are Eepublicans, and that when they vote they vote the Eepubli-
can ticket.

The evidence of the certified returns, on the other hand, shows that
a large majority of them vote the Democratic ticket. The conflict is
between the returns and the men who cast the ballots on which the
returns purport to be based.

The evidence also shows that, in almost every voting district, there
are a few colored Democrats, well known to both white and black. It
also shows that where the whites are in a majority a greater number of
colored men vote the Democratic ticket than in localities where the blacks
greatly preponderate.

The evidence further discloses that the Eepublicans have kept up
their party organization, that they continue to take great interest in
elections, and as a rule are eager to exercise the right to vote. It
further shows that at this election there was entire harmony in the
ranks, the only exception being a so-called Eepublican paper of small
circulation and less influence, which lent itself to the Democracy.

The evidence further establishes the fact that throughout the district
there was a general belief among the Eepublicans that there would not
be an honest count of the votes ; that, whatever the actual result, con-
testee would be declared elected, and that it would be necessary to prove
the true vote by other means than the returns, and to appeal to the
House to correct the anticipated wrong to the voters. Such belief does
not exist so universally without cause. The history of this district, the
common knowledge of the mass of voters in it of announced results at
former elections, and the action of county officers in appointing inspect-
ors of election, fully justified the belief; and results prove that the
belief was foreknowledge.

The election laws of Alabama, so far as they are necessary to under-
stand the issue in this case, are here inserted,

M'DUFFIE vs. TURPIN. 261

SECTION 1. Be it enacted by the General Assembly of Alabama, That every male citizen
of the United States, and every male person of foreign birth who has been natural-
ized, or who may have legally declared his intention to become a citizen of the
United States, before he offers to vote, who is twenty-one years old or upwards, who
shall have resided in the State one year, three months in the county, and thirty days
in the precinct or ward next immediately preceding the election at which he offers to
vote, is a qualified elector, and may vote in the precinct or ward of his actual resi-
dence, and not elsewhere, for all officers elected by the people.

#*.**

Approved February 9, 1877.

SEC. 252. The courts of county commissioners may, in their respective counties, es-
tablish, change, or abolish election precincts and places of voting therein, and may
change the boundary lines thereof, as the convenience of the voters in such precincts
may, in their judgment, be promoted thereby; but no order under this section shall
take effect unless made at least sixty days before an election, nor- until three months
after notice thereof has been posted 'up at the court door of such county.

SEC. 258. Number of boxes and by whom provided. The probate judge, sheriff, and
clerk of the circuit court of each county in the State shall provide one ballot-box,
and where it is deemed necessary shall provide more than one, and not more than
three, at each place of voting.

CHAPTER III, ARTICLE I.

SEC. 259. Inspectors and precinct-returning officers, how appointed. The judge of
probate, sheriff, clerk of the circuit court, or any two of them, must, at least thirty
days before the holding of any election in their county, appoint three inspectors for
each place of voting, two of which shall be members of opposing political parties, if prac-
ticable, and one returning officer for each precinct to act at the place of holding elec-
tions in each precinct; and it shall be the duty of the sheriff to notify such inspectors
and returning officers of their appointment within ten days after such appointment.

SEC. 260. Sheriff is county returning officer. The sheriff of each county, or the person
discharging the duties of such office, is the returning officer of the county.

SEC. 262. Duties of inspectors and returning officers in holding election; how places sup-
plied on failure 1o attend. It shall be the duty of the inspectors and the returning
officers appointed to meet at the place of holding elections in the several precincts
for which they have been appointed by eight o'clock of the morning of the day of
election, and before nine o'clock open the several polling places as designated. And
on the failure of any inspector or returning officer to attend at the hour of eight
o'clock, such as may be present may complete the number. If none of the inspectors
appointed are present the returning officer of the precinct shall appoint three inspect-
ors to act, who in every such instance shall be qualified electors who are entitled to
vote at that polling place. And if there should be no inspectors or returning officer
present by the hour of eight o'clock at any polling place, then any three qualified
electors who are entitled by law to vote at that polling place, in the election to be
held, may open the polls and serve as inspectors during the election.

SEC. 263. Returning officer absent inspectors appoint. If the returning officer is not
present at the hour appointed, the inspectors, or those acting as such, must appoint
one to serve during the election.

SEC. 264. Clerics of election. Inspectors, before opening the polls, must select two
persons to act as clerks.

SEC. 265. Oath of inspectors and clerics. Before opening the polls, the inspectors and
the clerks must take an oath to perform their duties at such election, according to
law, to the best of their judgment, and the inspectors must also swear that they will
not themselves, or knowingly allow any other person, to compare the number of the
ballots with the number of the votes enrolled, which oath may be administered by
the inspectors to each other, or by the returning officer, or a justice of the peace.

SEC. 271. Hours of opening and closing the polls. The polls must be opened at each
voting place, in each voting precinct, between the hours of eight and nine o'clock in
the morning, and be kept open, without intermission or adjournment, until the
hour of five in the afternoon, and no longer.

SEC. 281. Five witnesses for each political party may attend each voting place,
without restriction as to distance, for the purpose of challenging persons who may be
suspected of attempting to vote illegally.

STYLE OF BALLOTS (ACTS OF ALABAMA, 1878-'79, PAGE 72).

SECTION 1. The ballot must be a plain piece of white paper, without any figures,
marks, rulings, characters, or embellishments thereon, and not less than two or more
than, two and one-half inches wide, and not less than five or more than seven inches

262 M'DUFFIE vs. TURPIN.

long, cm which must be written or printed, or partly written and partly printed, only
the names of the persous.for whom the elector intends to vote, and mast designate
the office for which each person so named is intended by him to be chosen, aiid any
ballot otherwise than described is illegal ami must bs rejected.
Approved February 12, 1879.

MODE OF RECEIVING BALLOTS (Acrs OF 1878-79, PAGE 78).

SECTION 1. One of the inspectors must receive the ballot folded from the elector,
and the same passed to each of the other inspectors, and the ballot must then, with-
out being opened or examined, be deposited in the proper ballot-box.

Approved February 8, 1879.

MANNER OF COUNTING THE VOTES (ACTS OF ALABAMA, 1878-79, Page 73).

SECTION 1. In counting out, the returning officer or one of the inspectors must
take the ballots, one by one, from the box in which they have been deposited, at the
same time reading aloud the names of the persons written or printed thereon and the
office for which such persons are voted for. They must separately keep a calculation
of the number of votes each person receives, and for what office he'receives them ; and
if two or more ballots are found rolled up or folded together, so as to induce the be-
lief that the same was done with a fraudulent intent, they must be rejected; or, if
any ballot contains the name of more than the voter had a right to vote for the first
of such names on such ticket to the number of persons the voter was entitled to vote
for only must be counted.

Approved February 13, 1879.

ARTICLE IV, CODE OF ALABAMA.

SEC. 285. Counting out votes. It is the duty of all inspectors of elections in the
election precincts, immediately on the closing of the polls, to count out the ballots
so polled.

SEC. 287. Statement of votes and one poll-list certified, sealed up in a box, and delivered
to reluming officer. As soon as the ballots are all counted out the inspectors must
ascertain the number of votes received for each person and for what office, and must
make a statement of the same in writing, which statement must be signed by them.
They must also certify in writing on the poll-list that such poll-list is the poll-list of
the election precinct or ward at which they were inspectors, the day and year on
which election was held, and for what offices, which certificates must be signed by
them, and such statement of the poll-list and votes thus certified must be sealed up
together with the list of the registered voters in such precinct or ward at such elec-
tion, on such day, in a box to be furnished by the sheriff of the county, one or more
for each precinct or ward, and to consist of wood, tin, or sheet-iron, and securely
fastened by locks, directed to the sheriff of the county, if there be one, and, if none,
then to the person discharging the duties of such office, and immediately deliver the
same to the returning officer of the precinct.

CODE OF ALABAMA (SEC. 289, PAGE 242,

Statement and poll-lists returned to count)/ returning officer. The statement of votes
and poll-lists delivered to the returning officer of the precinct must be delivered to
the returning officer of the county within forty eight hours after the election.

VOTE OF THE COUNTY, ESTIMATED. (ACTS OF ALABAMA, 1876-77, PAGE 121.)

SECTION 1. Be it further enacted, That on Saturday next after the election, at the
hour of 12 meridian, the returning officer of the county, in person, or by deputy, and
the probate judge and clerk of the circuit court, shall assemble at the court-house,
or if there be no such judge and clerk, or either of them fail to attend, or if either
of them be interested by reason of being a candidate at such election, his place must
be supplied by a respectable freeholder or householder of the county ; and if all such
officers be of the same political party, then the said returning officer of the county
mnst summons three reputable persons, resident householders or freeholders of the
county, members of the opposite political party, to attend at such time and place
and in the presence of such other persons as choose to attend; and it shall be the
duty of this board of supervisors, so constituted, to make a correct statement from
the returns of the votes from the several precincts of the county of the whole num-

M'DUFFIE vs. TURPIN. 2G3

ber of the votes given therein for each officer and the person to whom such votea

were given.

# # # * * #

Approved January 20, 1887.

SEC. 384. Ballots and second poll-lists, how disposed of. The inspectors must count
the ballots deposited in the box; as soon as all the ballots contained in the box are
counted the inspectors shall roll up the ballots so counted, and label the same, so as
to show for what officer or officers the ballots contained therein were received, and,
when so rolled up and labeled, shall be securely sealed ; the rejected ballots, if any,
shall also be rolled up and labeled as rejected ballots and sealed up as the other par-
cels; and the packages so sealed np and labeled, together with one poll-list, which
shall also be securely sealed up, shall be returned to and securely fastened np in the
box from which such ballots were taken and counted, and which shall also be sealed
and labeled, so as to show the nature of its contents, and shall be kept by one of the
inspectors for sixty days; and then the packages shall be taken out of the box, with-
out opening or unsealing the packages, and destroyed, unless within that time the
inspector having them in custody is notified that the election of some officer for which
the election was held will be contested, in which case he must preserve the box con-
taining the ballots cast for such contestant until such contest is finally determined,
or until such box is demanded by some other legally constituted custodian during
such contest.

Attention is called to some of the features of the law.

If any of the inspectors are absent from the place of election at 8
o'clock a. m., the inspectors present may complete the number, and
proceed with the election. If no inspector is present at 8 o'clock, and
the returning officer is, he may organize a board of inspectors. If none
of these officers are present at 8 o'clock, then any three citizens, quali-
fied voters, may organize the board.

One ballot-box is to be provided by the sheriff, and if necessary
(that is, if more than one box is necessary to receive the votes), then
more than one, and not exceeding three.

A peculiar feature of the law is that each of the three inspectors must
have the ballot in his hand before it is deposited in the box, a feature
which seems to have been devised for the purpose of facilitating fraud
and concealing it. One dishonest inspector of very ordinary skill may,
without danger of detection, change a large portion of the ballots before
they reach the box. The other two may honestly testify that they saw
nothing wrong. So that two inspectors may be called as witnesses and
testify to the honesty of the election, while the third, who perpetrated
the fraud, is left in the background.

Alter the election and return, the ballots are to be placed in the
custody of one of the inspectors, to be kept by him sixty days, and then
destroyed if no notice of contest has been served on him in the mean
time. No record is made, so as to be accessible, of which inspector has
the ballots ; nor is any means, other than sealing, provided by law for
their safe-keeping so that they may thereafter be safely examined with
any assurance that they are the ballots wh;ch were voted.

The inspectors appointed by the probate judge, sheriff, and circuit
clerk (or any two of them), must be appointed at least thirty days
before the election ; and, if practicable, must be of different political
parties.

The sheriff must, at a given time, summon the probate judge and
circuit clerk as a board of supervisors to ascertain and certify the result
of the election. If these officers are all of the same political party, then
this returning officer must summon three reputable householders, citi-
zens and voters, of the opposite political party, to make up this return-
ing board or board of supervisors. In connection with this section of the
statute it may be remarked that all the officers made returning officers by
law were of one political party, but. nowhere was it deemed by them or

264 M'DUFPIE vs. TURPIN,

the sheriff' necessary to comply with the terms of the law and summon
members of the opposite political party to act as supervisors. Such
little formality, designed to secure honest returns, seems to have been
entirely forgotten.

The following from decisions of the supreme court of Alabama have
a bearing upon the case:

It is tiie election which entitles the party to office, and if one i? legally elected by
receiving a majority of legal votes, his right is not impaired by any omission or negli-
gence of the managers subsequent to the election. (13 Ala., 835.)

Nor will a mistake by the managers of the election iu counting the votes and de-
claring the results vitiate the election. Such a mistake should bo corrected; the
person receiving the highest number of votes becomes entitled to the office. (9 Ala..
338.)

Iii considering the evidence with reference to particular precinct re-
turns, it is first necessary to inquire by whom the election was held, in
order to determine what weight should be given to the returns. Returns
are, as a rule, prima facie evidence of the result; but if the integrity of
the inspectors is in any way impeached, either by showing that their
character is such as to cast suspicion on their acts, or that their belief
is that frauds upon elections are justifiable, or that the manner of their
selection was such as to indicate a purpose to procure a false statement
of results, then the returns lose much of the weight that would other-
wise attach to them. English vs. Peele, 48th Congress. In this case
the committee says:

When once the taint of fraud or unreliability is attached to the official count, its
value is gone, and we must look to other sources for better information.

In Lowndes County the precinct inspectors were appointed on the
25th day of September. A few days afterwards the coutestee visited
the county, and on the Cth day of October an entire change was inside
in the list of inspectors appointed to represent the Republicans. The
first list was satisfactory, and made up iu the greater part of intelli-
gent men. The second list was made without any authority in the law,
and its composition shows that the change was made for a dishonest
purpose. Judge Coffey (Record, p. 745) says that the reason for this
change was that the sheriff and several other gentlemen told him that
the Republican inspectors being school-teachers, did not wish to serve
and mix up in politics. Hence the change. Let us see whether that
was the true reason.

Church Hill. First appointee attended for the purpose of serving
and was not permitted.

Gordonsville. Same.

Farmer.sville. Offered and was refused. Served at Republican box.

Hopewell. Superseded inspector was present and served as super-
visor.

Sandy Ridge. Superseded inspector tried to serve, and was refused.
Did serve as supervisor at the Republican box.

Brooks. Inspector superseded, but actually served, and the return
is not questioned.

Prairie Hill. Superseded inspector actually served at one box.

LctohatcJtie. Superseded inspector actually served at box opened by
Republicans.

Steep Creek. Superseded inspector tried to serve, and when refused
kept outside list.

Fintlala. Superseded inspector actually served and made honest
return.

St. Glair. Superseded inspector actually served and made honest re-

M'DUFFIE vs. TURPIN. 265

turn, but false return of a pretended election made. True return re-
jected.

White Hall. Superseded inspector served and made honest return.

Twelve of the first list either served or tried to serve, and eight of
the new list who served could neither read nor write. The reason for
the removal of intelligent and trustworthy Republicans and replacing
them with ignorant and unreliable men, in pretended compliance with
the law, is evident from the foregoing statement, and the falsity of
Judge Coffey's reason is made apparent.

That coutestee had something to do with this change does not admit
of much serious question.

When the law provides that each of the two political parties shall
have representation on the election board of inspectors, it is a provision
to prevent dishonest partisans from making false returns ; and in such
case the appointment of men incompetent to determine whether the
return is honest or not to represent the party opposed to the appointing
power, tends to prove an intent to prevent that watchfulness intended
to be secured by the statute, and raises a strong suspicion (if it does
not fully prove) of conspiracy to falsify the returns.

With this proposition in view, we submit the facts in regard to the
inspectors appointed to represent the Eepublican party.

HALE COUNTY.

Greensborough precinct. Inspector appointed as a Eepublican ; could
neither read nor write.

Ccdarville precinct. Colored inspector known to be under the con-
trol of the Democratic inspectors, and not considered a Republican.

Carthage precinct. All the inspectors were Democrats.

Warren's store precinct. Inspectors all Democrats.

Havana precinct. Inspectors all Democrats.

Neicborn precinct. Inspectors all Democrats. In this precinct, there
being no Republican inspector and no United States supervisor, the
Republicans refused to vote, and opened a poll of their own; but the
Democratic inspectors counted them as if they had voted, and as voting
the Democratic ticket. The Republican box was not returned, and is
not considered.

WILCOX COUNTY.

Snow Hill precinct Inspectors all Democrats, including the colored
inspector.

Pine Apple precinct. Inspectors all Democrats, including an illiter-
ate colored man.

- Allentown precinct. One Republican inspector who could neither
read nor write.

Bethel precinct. One Republican inspector who could neither read
nor write.

White Hall precinct. The appointed Republican inspector at this
precinct happened to be intelligent and was prevented from acting. A
Democrat was substituted.

Black Bluff precinct. Inspectors all Democrats.

Hi mm' 8 precinct. Inspectors all Democrats, one of them a colored
' Democrat who could neither read nor write. An outside list of Repub-
lican voters, kept by Republican watchers, was forcibly seized by the
deputy sheriff.

266 M'DUFFIE vs. TURPIN.

Camden precinct. Colored inspector says he is a Republican, but he
is one of those Republicans who vote the Democratic ticket.

Prairie Bluff precinct. Inspectors all Democrats, one of them a col-
ored man who could not write. He testifies that he is a Democrat.

Sedan precinct. Inspectors all Democrats.

Bailey Springs precinct. The colored inspector could not read or write,
and was understood to be a Democrat.

Behobeth precinct. Republican inspector could neither read nor write.

Canton precinct. Inspectors all Democrats.

Oeesbend precinct. Republican inspector could not write.

PEREY COUNTY.

Marion precinct. Republican inspector refused to sign returns, and
United States supervisor shows up the fraud.

Hamburg precinct. One inspector a Republican.

Pole Cat precinct. Same.

Uniontown precinct. Two boxes.

Cunningham precinct. One inspector claimed to be a Republican.

Walthall precinct. One inspector claimed to be a Republican, but not
trusted as such.

All the inspectors in this county were appointed by the Democratic
county central committee.

DALLAS COUNTY.

Martin Station precinct. Inspectors all Democrats, including the col-
ored inspector. Fraud shown up by the United States supervisor.

Pence precinct. All the inspectors, including the colored one, Demo-
crats. Box carried away and not counted until the day following the
election.

Mitchell's M^ill precinct. Regular Republican inspector, with two
qualified electors, held election and made return. Some one else made
return of another election. Neither return counted by returning board.
Here the appointing power made a mistake, and appointed a Repub-
lican inspector capable of preventing fraud. Hence the refusal of the
Democratic inspectors to act with him.

Liberty Hill precinct. Election held by Republican inspectors, Dem-
ocratic inspectors failing to appear.

Burnsmlle precinct. In this precinct a duplicate box was prepared,
but the Republicans found it, and it disappeared. Hence the Demo-
cratic inspectors refused to count the vote until the following day, at
another place. It required time to supply the place of the lost box,
with desirable tickets in it.

Union precinct. Republican inspector could neither read nor write.

Valley Creek precinct. Republican inspector could not write. U. S.
supervisor refused admission to the polling place.

Summerjield precinct. Republican inspector could neither read nor
write.

Lexington precinct. Inspectors all Democrats, including a colored man
who could neither read or write.

Smiley precinct. Democratic inspectors failed to appear, and election
held by Republican inspector as provided by law. Returns rejected by
county board, but it is admitted that they ought to be counted.

Pine Flat precinct. The man appointed to represent the Republicans

M'DUFFIE vs. TURPIN. 267

says he is neither a Republican nor a Democrat, but is a "straight out."
He signs his testimony with his mark.

Vcrnon precinct. Republican inspector could not read or write. Box
carried away before counting.

Dublin precinct. Election held by two inspectors. Republican could
not read or write.

Orvilie precinct. Colored inspector regarded as a Democrat.

Selma precinct. One Republican inspector, but has the reputation
among Republicans as a tool of the Democrats in the perpetration of
election frauds.

Elm Bluff precinct. Inspectors all Democrats.

Richmond precinct. Republican inspector could not read or write.
Outside tally-keeper beaten with a club and list taken away. Arrested
by deputy sheriff.

Broivrfs precinct. Republican inspector could not read or write.
Ballots counted by U. S. supervisor: McDnffie 265, Turpin 16. The
box containing returns tampered with and returns falsified.

Chilatchie precinct. Returns rejected by county board, but it is ad-
mitted that they ought to be counted.

River precinct. .Republican inspector could not read or write.

Carlowville precinct. Inspectors failed to appear. Election held by
electors, but not considered by county board.

Woodlawn precinct. Republican inspector could not read or write.

Marion Junction precinct. Republican inspector could not write.

Old Town precinct. Inspectors all white Democrats.

ANALYSIS.

Hale County. (Seven precincts). In four all inspectors were Demo-
crats. In two Republican could not read or write, and in the other
Republican inspector looked on as a Democrat.

Wilcox County. (Fourteen precincts}. In eight all inspectors were
Democrats. In four, Republican inspectors could not read or write.
In one, Republican inspector prevented from acting, and Democrat sub-
stituted; and in one, a Republican who was distrusted.

Dallas County. (Twenty -two precincts). All Democrats in six. Re-
publicans, who could not read or write, in ten.

Such uniform violation of the statute and such uniform pretense of
complying with its terms by appointing colored Democrats to represent
the party, or by appointing illiterate colored Republicans, show method
in the action of the county boards, with dishonest designs behind the
method.

Under these circumstances it would be safe to apply the rule adopted
in regard to this district by the House Committee on Elections in the
Forty-eighth Congress, and consider as trustworthy only such returns
as are sustained by oral testimony. But the committee has not gone
to that extent in this case.

It is worthy of remark that in almost every precinct in the fourth
district there were reliable and intelligent Republicans, competent to
discharge the duties of election inspectors and to protect the voters to
the extent of securing an honest count and a correct return.

Another feature of tue election, which can not be overlooked, was the
precaution everywhere taken by the Republicans to ascertain with
accuracy the number of votes cast by them, showing a universal dis-
trust of the precinct officers. In many precincts complete poll-lists

268

M'DTJFFIE vs. TURPIN.

were kept by clerks selected for that purpose, voters going to the ex-
tent of refusing to vote unless such precaution was taken. On the other
hand, vigorous efforts were made by the Democrats in many places to
prevent the keeping of such lists, under the pretense that the keeping
of such lists was intimidation. Deputy sheriffs were active in trying to
suppress this attempt to keep a check upon the distrusted election
officers.

In one instance the attempt of a deputy sheriff, acting under the
direction of the sheriff of the county, to stop the further keeping of a
poll and to secure possession of the one that had been kept, resulted
in the murder of one Republican and the wounding of two others by
the deputy and his supporters. The murderer has escaped even the
formality of a prosecution.

These officials who were thus attempting to prevent the measures
taken by the Republicans to preserve the evidence of the vote cast,
well knew the purpose of these measures, for, only two years before, in
the election contest of McDuffie vs. Davidson, this kind of evidence had
been used all over the district to show up the frauds in the election of
1886. The conclusion is inevitable that these acts of the Democratic
officials and their aiders and abettors were done in furtherance of con-
templated frauds.

The printed record discloses anotherunpardonable attempt to suppress
testimony. This attempt was the deliberate act of contestee and his
attorneys. Frivolous objections, covering whole pages of the record,
and cross-examinations of witnesses which would disgrace a police
court shyster, were the means by which contestee and his attorneys
sought to use up the time allowed to contestant in which to take tes-
timony to prove his allegations. This conduct resulted, beyond a
reasonable doubt from a deliberate purpose to suppress as much of con-
testant's evidence as possible, and prevent a disclosure of the whole
truth.

These are some of the general features of the case proper to be con-
sidered in applying the specific evidence in regard to the various pre-
cinct returns brought into question.

The following are the findings of the committee of the true state of
the vote in the precincts named, contrasted with the returns, and, so
far as accessible, with the vote as found in the case of Craig vs. Shelley,
in the Forty-eighth Congress, (lieport of committee in Fiftieth Con-
gress does not give precinct findings.)

LOWNDES COUXTy.

Prairie Hill:

Counted by committee

Turpin 110

McDnffie 75

Returned

Turpin 110

McDuffie 75

Gordonsville:

Counted by committee

Turpin 19

McDnffie 200

Retuiued

Turpin 252

McDuffie 69

In Forty-eighth Congress

Democrat

Republican 299

Sandy Ridge :

Counted by committee

Turpin , 103

McDuffie 203

Returned

Turpin 103

McDuffie 1

In Forty-eighth Congress

Democrat , 96

Republican 207

Letohatchie:

Counted by committee

Turpin 20

McDuffie 204

Returned

Turpin 249

McDuffie 19

M'DUFFIE vs. TURPIN.

269

Lowudesborough :*

Counted by committee

Tnrpin 41

McDuffie 140

Returned

Turoin 320

McDuffie 41

lu Forty-eighth Congress

Democrat 44

Republican 369

'Inconclusive evidence tends to
show some 350 Republican votes
in this precinct.

Steep Creek:

Counted by committee

Turpin 37

McDuffie 171

Returned

Turpin 146

McDuffie 62

In Forty-eighth Congress

Democrat 26

Republican 184

Church Hill:

Counted by committee

Turpin 13

McDuffie 166

Returned

Turpin 117

McDuffie 63

Haynesville :

1 Counted by committee

Turpin ..... 54

McDuffie 272

Returned

Turpiu 158

McDuffie

St.Clair:

Counted by committee

Turpiu 8

McDuffie 214

Returned

Turpin 8

McDuffie

In Forty-eighth Congress

Democrat 6

Republican 182

Farraersville:

Counted by committee

Turpin 26

McDuffie 40

Returned

Turpin 26

McDuffie

Fort Deposit :

Counted by committee

Turpin

McDuffie

Returned

Turpin 60

McDuffie

The remaining precincts in Lowndes County are not contested. The
returns are as follows :

Precincts.

Tnrpin.

McDuffie.

Benton - .......

HicSory Hill

Mt Willin"-

160

113

9 83

Pintlala

330

White Hall '

215

Total vote returned

2 131

1 442

Committee's count, by above table, deducts 1,118 from Tnrpin's vote
and adds 1,288 to McDuffie's vote, leaving the true vote : Turpiu, 1,013;
McDuffie, 2,730. McDuffie's majority in Lowndes County, 1,717. The
certified returns from Lowndes County in 1886 gave McDuffie 1,530
majority, and the House Committee on Elections found his majority to
be larger.

270

M'DUFFIE vs. TURPIN.

WILCOX COUNTY.

Snow Hill:

Counted by committee

Turpiu 82

McDuffie 445

Returned

Turpi n 464

McDuffie 105

lu Forty-eighth Congress

Democrat

Republican 515

Alleuton :

Counted by committee

Turpiu 27

McDuffie 316

Returned

Turpiu 242

McDuffie 67

Pine Apple:

Counted by committee

Turpin 180

McDuffie 211

Returned

Turpin 348

McDuffie 33

Bethel:

Counted by committee

Turpin 57

McDuffie 343

Returned

Turpin 385

McDuffie 15

White Hall:

Counted by committee

Turpin 47

McDuffle 84

Returned

Tnrpin 116

McDuffie. 26

In Forty- eighth Congress

Democrat 25

Reoublican 71

Clifton:

Counted by committee

Turpin 29

McDuffie 204

Returned

Turpin 190

McDuffie 25

In Forty-eighth Congress

Democrat 5

Republican 169

Black's Bluff:

Counted by committee

Tnrpin 33

McDuffie 205

Returned

Turpiu 213

McDuffie 38

Prairie Bluff:

Counted by committee

Turpin 13

McDuffie 241

Returned

Turpin "... 245

McDuffie 14

Boiling Springs:

Counted by committee

Turpin 42

McDuffie 200

Returned

Turpin 200

McDuffie 42

Rehobeth :

Evidence tending to show fraud-
ulent return, but not sufficient
to reject returns.

Returned

Turpin 161

McDuffie 25

In Forty-eighth Congress

Democrat

Republican 158

Canton:

Counted by committee

Turpin 11

McDuffie 188

Returned

Turpin 223

McDuffie 11

Geesbend :

Counted by committee

Turpin 9

McDuffie 172

Returned

Turpin 170

McDuffie 15

In Forty-eighth Congress

Democrat

Republican 150

The returned vote of Wilcox County, including precincts not named
above, gives Turpin 4,811, McDuffie 607. By our table we deduct from
Turpin's returned vote 2,276 and add to McDuffie's returned vote 2,200.

Turpin .. 4, 81 12, 276=2, 535

McDuffie 607+2,200=2,807

Majority for McDuffie in Wilcox County 272

M'DUFFIE vs. TURPIN.

271

PERRY COUNTY.

Hamburg :

Counted by committee

Turpin 35

McDuffie 256

Eeturued

Turpin 212

McDuffie 83

Marion:

Counted by committee

Turpin 83

McDuffie 583

Returned

Turpin 697

McDuffie.. 86

Uniontown :

Counted by committee

Turpiu 210

McDuffie , 955

Uuioutown continued :

Return (same in two. boxes).
Counted by returning board

Turpiu 210

McDuffie 2

Perry ville :

Counted by committee

Turpin

McDuffie

Return

Turpin 142

McDuffie 41

(Throw out, as neither returns nor
poll-lists were signed and no
proof made.)

Perry County vote as returned gives Turpin 2,961, McDuffie 650.
Deduct by our table from Turpin 973 and add to McDuffie 1,582, as
follows:

Turpin 2,761 933 = 1,828

McDuffie 650 + 1,582 = 2,232

McDuffie's majority in Perry County 404

HALE COUNTY.

Greensborough :

Counted by committee

Turpin 210

McDuffie 693

Returned

Turpin 577

McDuffie. 330

Forty-eighth Congress

Democrat 194

Republican 630

Hollow Square :

Counted by committee

Turpiu 59

McDuffie.. .. 475

Hollow Square continued:
Returned

Turpin 362

McDuffie 169

Cedarville :

Counted by committee

Turpin 27

McDuffie 490

Returned

Turpin 364

McDuffie 153

Keturned vote of Hale County gives Turpin 3,170, McDuffie 1,220.
We deduct 1.007 from Turpin and add 1,006 to McDuffie, as follows:

Turpin "... 3,1701,007=2,163

McDuffie 1,220+1,006=2,326

McDuffie's majority

272

M'DUFFIE vs. TURPIN.

DALLAS COUNTY.

Martin's Station :

Counted by committee

Tiirpin 87

McDuffie 324

Returned

Turpin 383

McDuffie 28

Forty-eighth Congress

Democratic 1

Republican 304

Forty-seventh Congress

Democratic 16

Republican 384

Pence :

Counted by committee

Turpin 8

McDuffie 219

Returned

Turpin 188

McDuffie 20

Forty-eighth Congress

Democratic

Republican 150

Mitchell's Mill :

Counted by committee

Turpiu

McDuffie 345

Returned

Turpin 30

McDuffie

Forty-eighth Congress

Democratic

Republican 307

Liberty Hill :

Counted by committee

Turpin

McDuffie 197

Returned

Ttirpin

McDuffie

Burnsville:

Counted by committee

Turpin 60

MoUuffie 288

Returned

Turpin 475

McDuffie 22

Union:

Counted by committee

Turpiu 44

McDuffie 336

Returned

Turpin 299

McDuffie 85

Forty-eighth Congress

Democratic

Republican 269

Valley Creek :

Counted by committee

Tnrpin 60

McDuffie 382

Returned

Turpin 401

McDuffie 89

Summerfield :

Returned

Turpin 162

McDuffie.. 30

Summerfield Continued.

Forty -eighth Congress

Democratic

Republican 250

(We count this as returned, but
there are strong indications of
fraud. )
Smiley:

Counted by committee

Turpiu

McDuffie 86

Forty-eighth Congress

Democratic 30

Republican Ill

(No return counted.)
PineFJat:

Counted by committee

Turpin 20

McDuffie 140

Returned

Turpin 249

McDuffie 80

Forty-eighth Congress-
Democratic 14

Republican 204

Vernon :

Counted by committee

Turpin 19

McDuffie 121

Returned

Turpin 139

McDuffie 8

Dublin :

Counted by committee

Ttirpin 22

McDuffie 49

Returned

Turpin 65

McDuffie 22

Selma :

Returned

Turpiu 799

McDuffie 494

(We leave as returned, but have
serious doubts as to the hon-
esty of the count.)
Elm Bluff:

Counted by committee

Turpin 15

McDuffie 76

Returned

Turpin 73

McDuffie 28

Forty-eighth Congress

Democratic 5

Republican 72

Brown's :

Counted by committee

Turpin 16

McDuffie 249

Returned

Turpin 235

McDuffie 90

Forty-eighth Congress

Democratic 10

Republican 304

M'DUFFIE vs. TURPIN.

273

Chiliatchie:

Counted by committee

Turpin

McDu^e 144

(No returns counted.)
River :

Counted by committee

Turpin 17

McDuffie 200

Returned

Turpin 283

McDuffie 14

Forty-eighth Congress

Democratic

Republican 133

Carlowville:

Counted by committee

Turpin

McDuffie 101

(No return counted. Conceded.)

Woodlawn :

Counted by committee

Turpin 40

McDuffie.. . 136

Woodlawn Continued.

Returned

Turpin 159

McDuffie 17

Marion Junction :

Counted by committee

Turpin 9

McDuffie 72

Returned

Turpin 72

McDuffie 27

Old Town :

Counted by committee

Turpin 20

McDuffie 150

Returned

Turpin 271

McDuffie 5

Boykins:

Counted by committee

Turpiu 17

McDuffie 110

Forty- eighth Congress

Democratic

Republican 93

(Returns not counted by board.)

Returned vote of Dallas County gives Turpiu 5,705, McDuffie 1,706.
We deduct from Turpin 2,838 aud add to McDuffie 3,190.

Turpin 5,7052,836=2,807

McDuffie 1,706 + 3,190 = 4,89(5

McDuffie's majority 2,029

Total majority for McDuffie in the district 4,481

The following is a more extended abstract of the testimony on which
the above findings are based :

LOWNDEg COUNTY.

Gordonsville. In this precinct the first appointed Eepublican in-
spector was unlawfully superseded, and a Republican who could not
read or write substituted. It is shown in evidence that there are from
300 to 400 Republicans in the precinct and only 20 to 25 Democrats.
It is also shown that at least 200 Republicans voted the straight Re
publican ticket. At about 2 o'clock p. m. a recess was taken, and a
Democratic inspector took the ballot-box into an adjoining room, against
the protest of the United States supervisor, and remained alone with
it eleven minutes by the watch. When the votes were counted there
were found to be 3 less in the box than there were names on the
)oll-list, and three tickets were picked up from the floor and put into

10 box. When the tickets were counted there was found to be a large
lumber of tickets in the box with the Republican electors and Turpiu's
lame on them. These tickets were of a different size and on a different
dnd of paper from the regular Republican tickets, and were easily dis-
tinguishable.

The United States supervisor, who received the tickets from the
roters a good portion of the day, swears that no such tickets were
roted. The number of Republican tickets voted, the fact that these
>ogus tickets were in the box, although not handed in by the voters,
shows that this box was stuffed, and destroys the integrity of its con-
tents. We are left to ascertain the vote by other evidence, which
shows that there were at least 200 Republican votes, and the notice of
contest concedes 19 Democratic votes.

H. Mis. 137-

-18

274 M'DUFFIE vs. TURPIN.

No attempt was made to sustain the return. Probably the reason
for stuffing the box, instead of falsifying the count, was the presence
of an intelligent supervisor. The material evideuce in regard to this
precinct is found on pages 728, 733, 735, and 744 of the record.

Sandy Ridge. At this precinct two polls were opened, within 75 yards
of each other. The Democratic inspectors refused to allow the regu-
larly appointed Republican inspector to act with them, and also re-
fused to allow the United States supervisor to act; whereupon they
organized a poll in conformity with the statute. TheRepublicans voted
at one poll, the Democrats at the other, and two returns were made.
The one returned by the Democratic inspectors was counted, the -other
not. We count both, as showiug the votes cast by those entitled to
vote, and hold that the circumstances as detailed in the evidence justi-
fied the action of the Republicans in holding a separate poll. The pre-
ciuct has some 250 Republicans, and possibly 130 Democrats in it. The
result here and there is no conflict in the evidence shows that when
there is a fair count the Republicans are seen to adhere to their party.

Letohatchie. As in Sandy Ridge, there were two polls at this pre-
cinct, organized under precisely similar circumstances. The Repub-
licans had no faith in the Democratic inspectors, and the result shows
that their distrust was well grounded, for at the Democratic poll the
fraud is so patent that it is beyond any question. The poll-list re-
turned proves this. It will be found on pages 679, GiO of the record.
Commencing with No. 56, it shows that the remaining voters 263 beiug
returned as voting voted in alphabetical order, with an occasional
name inserted out of order. Of course this is a bare-faced fraud, aud
completely destroys the integrity of this poll. It is clearly proven that
numbers of the persons whose names appear on this list did not vote
at the poll, aiid others did not then live in the beat. The truth is the.se
clerks and inspectors simply copied the old registry, and put tickets in
the box to correspond. And yet the Democratic inspectors, with thin
list staring them in the face, boldly swore that they held an honest
election, illustrating the tone of morals in that community as applied
to elections. The committee invite inspection of this poll-list.

There are in this precinct about 225 colored voters and 75 white
voters. One witness, on cross-examination, when asked why he did
not vote at the Democratic box, made a significant answer : "Because
they always counted me out."

Lowndesborouyli. The returns for this precinct were : Turpin, 320; Mc-
Duffie, 41. The evidence shows that the precinct contains about 400
colored voters and some fifty white voters, that some 350 colored men
attended the election and voted, and that most of them voted the Re-
publican ticket. One hundred and forty make affidavit that they so
voted. It is true that these are ex parte affidavits, the introduction of
which can only be justified on the ground that contestee deliberately
prevented the testimony from being taken in the lawful and regular
way. Other evideuce shows that of the 350 who voted, a great part
voted for contestant.

There being only 50 white voters in the precinct, it follows, if the
returns are true, that at least 270 colored men voted Democratic, while
only 41 voted Republican, or more than six to one. This of itself is
almost incredible, taken in connection with the proved fact that only
few colored men vote the Democratic ticket.

The inspectors here, including the colored man, were all Democrats,
in violation of the statute. None of the clerks or inspectors were
called to sustain this return. Two witnesses were called to show that

VS. TURPIN. 275

a good many of the colored men voted the Democratic ticket. One of
them, who was active in the interest of the Democratic party, went so
far as to say that he thought to the best of his belief that about as many
voted for Turpin as for McDuffie. This but confesses the claim that
the returns did not show the true state of the vote (p. 539.)

Steep Creek. Returns show : Turpin, 146 ; McDuffie, 62.

Milton D. Alexander, an intelligent colored man, was appointed
Republican inspector for this beat, but was superseded by the subse-
quent appointment of an illiterate colored Democrat. He went to the
polls and asked to serve, but was refused. He and an assistant distrib-
uted the tickets, and at the request of the voters had a complete poll
list kept of those who voted the Republican ticket, showing the Repub-
lican vote as we count it. This poll-list was introduced in evidence,
and then stolen while the testimony was being taken. The reason for
keeping this outside poll is thus explained by Alexander:

We were fearing to be counted out by the Democrats, * * * and we wanted to
know precisely how many Republican votes were cast for him (McDuffie) in that
precinct, which was our object in keeping the outside poll. * * * We expected a
can test, and expected to be counted out (pages 693, (59d).

James Gillind (page 707) describes fully the method of keeping the
poll, and the arrangement made beforehand with the Republican
voters to enable them to prove the true vote. There are from 200 to
225 colored voters and from 25 to 30 white voters in the beat ; 189 col-
ored voters of this beat make affidavit that they voted the Republican
ticket.

Here we have 170 voters declaring at the polls their intention to
vote the republican ticket, taking the ticket from one chosen by them
to issue tickets by pre-arraugemeut, holding their tickets in such a
way that they could be seen until voted, and then having their names
registered so as to be able to prove how they voted. These acts are a
part of the res gcstce of the election the deliberate declaration of the
voters while engaged in the act of voting, not only of how they voted
but of their utter want of confidence in the election board upon which
they had no representation.

In this precinct one of the inspectors was called as a witness for con-
testee. He shows that Cheek, the colored inspector, voted the Demo-
cratic ticket, but that to convince the Republicans that all was honest,
they had this inspector, Cheek, receive and deposit in the box all the
ballots. He took the ballots from the box, but another inspector, not
called, read the names. The clerk who kept the tally is^ called. An
outsider is called to show that some colored men changed their ballots
after receiving them from Alexander, in which he does not agree with
the inspector. The evidence of fraudulent returns, taken in conjunc-
tion with the general evidence, is conclusive, and we so find.

Church Hill. Return: Turpiu, 117; McDuffie, 63. Committee count
McDuffie, 166; Turpin, 13. The evidence shows that there are only 12
to 14 wnite men in this beat; that formerly there were a few colored
Democrats in the beat but none at the present time; that the intelligent
Republican inspector first appointed was superseded and an illiterate
one substituted ; and that the one first appointed attended the polls
and superintended the work of putting in the Republican votes, having
an outside poll kept. This poll had 167 names on it, but one was
erased because the watchers did not see his hand with the ticket in it
from the time he started with the ticket until it was deposited with the
inspector.

Several meetings were held by the Republicans before the election,

276 M'DUFFIE vs. TURPIN.

at which arrangements were made as to how the voters were to act, in
order that a complete record might be kept of their vote, in anticipation
of the counting out process with which they were all familiar.

As an illustration of the methods employed by the Republicans here
and elsewhere, to preserve the evidence of the vote, we insert the testi-
mony of C. F. Hrubowski, the manager at this poll (page 698) :

C. F. HRUBOWSKI, being called and sworn, deposes and saith :

Q. State your name, your age, your residence, and political party to which you
belong. A. My name is Charles F, Hrubowski; my age is 43 years old; I reside iu
Church Hill beat, No. 2, in Lowndes Co., Ala.; my race is colored, and I belong to
the Republican party.

Q. Did you attend the election in your precinct ou the 6th day of Nov., 1888, to
elect a Congressman for the 51st Congress for this district, and Presidential electors ?
A. I did attend such an election.

Q. Who held that election that is, who were the inspectors, clerks, and returning
officers? A. Mr. J. R. Dudley, N. B. Lever, and Cap. Dudley were inspectors; W.
N. May was the clerk, and the returning officer was George Earnest, and if there was
any other clerk I don'c know who it was.

Q. If you had any notice or information of the fact that the probate judge, the
clerk of the circuit court, and sheriff of the county, or that any two of them appointed
you as one of the inspectors of said election in said precinct, state how you got that
information. A. I did get it through the Hayneville Examiner, but don't know
whether the sheriff's name was signed to it or not.

Q. The witness was shown exhibit A and asked if that was a substantial copy of
the notice spoken of above. A. It was.

Q. Did you as an inspector so appointed offer or prepare to assist in holding said
election? A. I did.

Q. Why did you not assist iu holding said election ? State the reason why fully.
A. I was objected by the said inspectors holding said election, that I was not one of
the regular appointed that was appointed the last time, but I insisted on staying in
there any way. They said that if I did they would open the door and let everybody
come in.

Q. Do you know how many Republican votes were cast for J. V. McDuffie for a
seat in Congress for that election on that day? If you do, state how many. A. I
do know. There was a 166 to my certain knowledge. There was a 167 cast by one
doubtful.

Q. Now commence and state in detail fully and particularly how yon know this
fact. State every fact within your knowledge tending to show that 166 Republicans
voted for said McDuffie ou that day. A. The way was this: We had a committee ap-
pointed to act as clerks and act as inspectors to make a list which we made outside,
so that we could tell how many Republican votes were cast there, and I issued a
hundred and sixty-seven (167) tickets, with the arrangement that each man or voter
should carry his ticket in his hand clear from his body or pocket, so that he wouldn't
have any chance to change his ticket. Even if he had one, there was no other tickets
but Republican tickets used among the Republicans that day to my knowledge. We
voted very slow and carefully, so that we might be able to establish the fact to that
election that day. This arrangement had been made several weeks before among
the Republicans and all had agreed to go into that arrangement by holding several
meetings beforehand.

Q. Why did you go to this trouble to make an outside poll-list to ascertain how
many Republicans voted for McDuffie there that day when the clerks in the house
were making a poll-list? A. We did, because it was said that we could never get
the count of the votes that were cast there, and we wanted McDuffie to get what
votes were cast for him, as he was the choice of the people there as a candidate for
Congress. He, himself, was down there and they all promised him that they would
vote for him.

Q. What position did you and those who made that poll-list occupy at the time
said poll-list was made in reference to the door or window where the ballots were
received by the inspectors, and how far it was from said window or door ? Ans. The
election was held at the Baptist Church, the ballots were taken in at the front porch
of the church, beside of the front door, and where we sat to keep this list was right
in front of the door or window, about 30 feet or more from the steps.

Q. At what time was the name of each voter taken down on said list in reference
to the time when the ballot was given to him ; was it before or after it was given to
him? Ans. The names were written after the tickets were given to him; each man
stood there until his name was written ; his instruction was given to him as to how
he should carry his ticket to the polls or to where they received them.

Q. After one of the voters received his ballot and started to deposit it at the polls

M'DUFFIE vs. TUKPIN. 277

did you give out any other ticket until it was handed to thd inspector ? Ans. We
generally waited uiitil after he got to the window, the place where he handed in his
ticket.

Q. Did you or not carefully watch the hand of the voter that held the ticket from
the time that you gave him the ticket until he deposited it with the inspectors in
the house? Aus. I did : I made it my particular business to do that.

Q. You have said that you instructed each voter that you gave a ticket what posi-
tion to hold his hand in which he held the ticket until he deposited the ticket ; please
show the commissioner what the position was he held the hand? Ans. They carried it
in their left hand out from their body.

Q. Was this the way you instructed them to hold it? A. It was.

Q. Did you give your individual attention to each voter from the time he took the
ticket until he deposited it? A. I did to the best of my recollection.

Q. If any one or more of them disobeyed your instructions, state how many, and
what yon did when you detected any variation in the manner of carrying the ticket ?
A. I don't know of but one, and when I saw him pnt his hand in his vest pocket I
had his name erased from the list.

Q. Did you issue all of these 166 ballots and delivered them to the voters? A. I
don't issue them all, but was issued in my presence by a man in my presence, under
my observation.

Q. Have you that poll-list with you ? A. I have.
.. Q. Please hand it to the commissioner.

It was handed to the commissioner and asked to be marked Exhibit C. It was
marked Exhibit C by the commissioner.

Q. Is this the identical poll-list spoken of in this deposition ? A. It is.

Adjourned until to-morrow morning, Jan. 23rd, 1889.

T. L. S. GRACE,
2T. P. and Commissioner.

Met pursuant to adjournment and resumed examination.

The above testimony of Charles F. Hrobowski was taken in the absence of the con-
testee and his attorney. J. L. Holmes, attorney for contestee, being now present and
having read over all of said Charles F. Hrobowski's testimony, makes the following
objections to the answer of the witness : "I got notice of my appointment as inspector
through the Hayneville Examiner."

(Contestee objects on the ground that it is illegal and hearsay, said notice in said
paper not being authorized by law. To the question, "Do you know how many Re-
publican votes were cast for J. V. McDuffie for a seat in Congress, &c. ?" Contestee
objects to this question on the grounds that the returns as certified to by the inspect-
ors and the ballots themselves are the best evidence of votes cast for J. V. McDuffie ;
therefore, this question call for secondary, illegal, and hearsay testimony. Contestee
objects to the pretended poll-list made Exhibit C, on the ground that it is the act of
a private party ; that it is against the laws of Ala. to make such a list; that it is an
invasion of the secrecy of the ballot; that it is not sworn to or proven by the party
who made said list, nor by any attesting witness thereto ; and objects on the further
grounds that said has not been in the custody of any officer, but has been since it
has been made up to this day in the custody of irresponsible private parties to the
contestee unknown, and on the further grounds that the poll-list made by the in-
spector is the official and legal poll-list, and the ballots cast at said election, being
of easy access to contestant, are the best evidence of how many votes were cast and
for whom they were cast.)

Cross-examination by J. L. HOLMES, attorney for contestee:
Q. What is the race and politics of each of the inspectors? A. J. R. Dudley and

H. B. Lener are white Democrats, and Cap Dudley is a colored man, and I suppose is

a Republican. I have never known him to vote any other way.
Q. Can Cap Dudley read ? A. I think he can read.

Q. Did you ever receive personally any notice from the sheriff of Lowndes Co., or
jy other person officially, of your appointment as inspector? A. I did not,
Q. Have you any positive knowledge that J. V. McDuffie received 166 votes other
the knowledge you got from the list of the voters which was kept on the outside

if the house ? A. I have.
Q. Who made said list of voters that was kept on the outside f A. James Mo-

jurkie and Fred Lewis.

Q. Are James Moburkio and Fred Lewis now living in Lowndes Co. ? A. James
loburkie is, but Fred Lewis is not now, but was then.
Q. Did you actually have your eye on the hand of Fred Lewis and James Mo-

burkie when each one of the 166 names were actually written on said list? A. I

couldn't say that I saw the hands all the time while they were writing, but was

attentive as I could be all the time.

278 M'DUFFIE vs. TURPIN.

Q. Then yon can't swear positively that you sa,w each and every one of the 16G
names written on said list ? A. I couldn't say that I saw the hand that written every
name, but was present all the time.

Q. How many Republican votes did you issue yourself? A. I issued the biggest
portion of the 166, but did not issue all of them.

Q. Yon stated in your direct examination that you issued 167 tickets, now you state
that you did not issue all of the 167 tickets. Which statement is true and which is
false? A. I had control of the tickets, and I had a man to help me distribute them.
I did not say in my direct examination that I distributed all of them myself.

Q. Do you swear upon your oath that you actually had your eye on the hand upon
each of the 167 voters from the time said voter received said ticket, while he- was
having his name registered and while he was walking to the ballot-box and until he
put the ticket in the hand of the inspector?

(Contestant objects to the form ol the question ; particularly that part, " do you
swear upon your oath," on the ground that it is an attempt to bulldoze, and tends to
embarrass and confuse the witness, as the witness knows he is under oath.)

A. I do swear to the best of recollection that I saw the hand of every voter until
he got to the window where he handed in his ticket, but couldn't see the inspector
receive it.

Q. How could you have your eye actually upon the hand of the voter in which the
ticket was held and at the same time have your eye upon the hand that wrote the
names down on the list kept on the outside?

(Contestant objects to the question on the ground that it assumes a fact which is
false, the witness not having related it in that way ; that instead of making that
statement he has stated in the presence of Wm. Holmes, as the commissioner, that he
could not eay that he had his eye on the clerk when he wrote every name; and as
further stated, that he had the name of each voter written down before the voter
started to the ballot-box.)

A. The arrangement that neither voter started away from where his name was
taken until the voter that was ahead of him carried his ticket to the window, and
my recollection, I thought I saw the most of the transaction of the writing, but
couldn't say that I saw it at all.

Q. Did you actually have your eye upon the hand of the clerk when he wrote a
single one of the 166 names on that list ? A. I did ; I am satisfied I saw a good many
of them written.

Q. If you had your eye on the hand of the clerk when he was writing a name on
said list, how could you at the same instant of time have your eye on the hand of the
voter that held the ticket? A. To the best of my recollection I had my eye on both
at the same time.

Q. What man beside yourself gave out Republican tickets that day ? A. I think it
was Elbert Marshall.

Q. Was Elbert Marshall distributing tickets at the same time that you was? A. I
don't think he was; when I wasn't distributing he was.

Q. Did you remain right there with the clerk the entire time, from the time the
polls opened in the morning until they closed in the evening? A. I was not right in
the presence of the clerk all the time, but was on the ground all the time with the
exception of a little while, and then there was no voting at that time.

Q. You stated in your direct examination that there was no tickets but the Repub-
lican tickets used among the Republicans; do you mean by this that there was posi-
tively no other or that you saw no other ? A. I saw no other to my knowledge.

Q. Could you read the names printed on the ballots from where you stood to the
window where the votes were received ?

(Contestant objects to this question because it calls for immaterial and irrelevant
evidence.)

A. I don't suppose I could ; I never tried to do it.

Q. You stated in your direct examination that each voter carried his ballot to the
ballot-box in his left hand ; are positive that every one of the 166 so carried their
ballots?

(Contestant objects to this question on the ground that it assumes a fact that the
witness has never stated ; that the witness has never said that he saw the voter carry
his ticket to the ballot-box.)

A. To the best of my recollection every one of them carried their tickets in their
left hands; some may have had them in their right hand, but my best recollection is
that they carried it in their left hand.

Q. Might not some of them have changed their tickets from the left hand to the
right hand? A. I don't think they could have done that.

Q. Is it not a fact that when colored men vote the Democratic ticket that they
keep the fact a secret from the colored Republicans ? A. It is not so in our beat ; we
have a few colored men who used to vote the Democratic ticket, and we respected
them as before ; but there is none now.

M'DUFFIE vs. TURPIN. 279

Q. Are there any white Republicans in your beat? A. Not one.
Redirect by contestant :

Q. How many Dei< ocratic votes in that beat ? A. Generally from 14 to 12.

(Contestee objects to this question and answer on the grounds that it calls for the
mere opinion of the witness.)

Q. Did you have all of the tickets in your possession originally ? A. I did.

Q. You say in answer to my question that another man assisted you in distributing
the tickets ; were they all distributed immediately in your presence and under your
instructions? A. They was.

Q. You was asked by Mr. Holmes about Cap Dudley, one of the inspectors at that
election. What is the character of the intellect of Cap Dudley ? Is it weak or strong
intellect ; is his intellect above or below the average of his race ? A. I should say it
was weak, and that it is below the average.

Q. How near was you to the clerks when they wrote the names on said poll-list I
Can you say as a fact that said clerks wrote said names on said list ? A. Sometime I
was right there sitting on bench, sometime I was walking about the place between
them and where they wore voting ; it was my honest opinion that they did ; nobody
else had anything to do with it but them two.

(Contestee objects to the latter part of this answer because the witness gives it as
his opinion, and not as a fact.)

C. F. HRUBOWSKI.

H. B. Lever, Democratic inspector at this poll, testifies to the fair-
ness of the count. No one was present to cross-examine him, and his
testimony shows that other witnesses were necessary to sustain the re-
turn, as lie did not handle the tickets.

But as to the reliability of this witness we quote from the testimony
of Judge McDuffie:

Question. Do you know H. B. Lever, of Lowndes County, in said district ? If yea,
in what voting precinct in said county does he reside in, and resided at the time of
(said election, and what part, if any, did he take in said election? What political
party is ho a member off If he ever said anything to you about the manner in which
.said election was constructed in said precinct; state all that he said. Answer. I
know H. B. Lever; he resides in Church Hill precinct, said county, and resided in
said precinct on the day of the election, and acted as inspector in said precinct on
said day. He is a member of the Democratic party ; I had a conversation with him
in the city of Selina, while the examination of witnesses in this contest was going on;
we discussed the election and the manner of the count, and I told him that two years
ago that I helped his faction of the Democratic party in said county with the under-
standing that the Republicans should have an honest count in ail Federal elections
t hereafter, and that they had not acted squarely with me in counting me out at the
last election. He replied that he did not know that the arrangement icas to continue but
for one year; that if he had known it he would nut have counted me out, or words to
that effect ; that Pat Coffee, meaning Judge A. E. Caffee, probate judge of said county,
ought to have let them known about it; that he had nothing in the world against me ; but
while he was keeping a negro woman and had six children by her he would rather die and
go to hell than have the negroes get their feet on our necks ; that he was an Englishman by
birth and had no ties in this country. - .

If the return is true, two-thirds of the colored voters of this beat
voted for contestee, notwithstanding the positive proof that every one
of tliem was a Republican, and every one took particular pains to show
it at the polls, and to prove that he was such. The declaration of each
of these voters, while in the act of voting, the complete registry kept
at the request of the voters, the careful plans matured beforehand and
carried out on election day by the voters, not only show the universal
distrust of the Democratic inspectors, but conclusively show the falsity
of the return, when considered in connection with all the evidence.

Haynesville. Return from this precinct: Tnrpin, 158; McDuffie, 0.
Counted by the committee, Turpin, 54 ; McDuffie, 272. In this precinct
there were two boxes. The lawfully appointed Republican inspector
organized aboard, and in strict compliance with the law held the elec-
tion, which resulted in a vote for McDuflfie of 272 votes. The unlaw-
fully appointed Democratic inspectors held another election, at another

280 M'DUFFIE vs. TURPIN.

place, and made return of 158 for Turpin and none for McDuffie. It
is clearly shown by the evidence that less than 00 votes were cast at
the Democratic poll, and the best evidence is that not over eleven col-
ored men voted at that poll. This is the evidence of Tony Smith, the
colored inspector, who received the tickets and was supposed to repre-
sent the Republicans, but who, as shown by the returns, voted Demo-
cratic. A clerk at the election thought there might have been as many
as twenty.

Neither this clerk nor the colored inspector was present at the count
and the making up of the returns. There are between 300 and 400
Republicans in the beat, and not over 65 to 75 white voters. Here
again is an illustration of the solidity of the Republican vote when an
honest count can be had, and a further illustration of the way Demo-
cratic majorities are manufactured by taking a vote of between 50 and
60 and returning it as 158. It further illustrates the reason for the just
distrust of the Democrats entertained by the Republicans. The clerks
at this election were both called as witnesses, but neither testified to
the correctness of the return, nor could rhey, because it was a clear
case of returning a hundred votes that were never cast.

This precinct, taken as a whole, is a good illustration of Democratic
methods in the Fourth district of Alabama. The material evidence
can be found on pages 683, 688, 709, 711, 731, 739, 750.

The testimony of Varner, Democratic inspector, shows the unrelia-
bility of the Democratic returns. The poll-list of this election mys-
teriously disappeared, so that its padded list cannot be given.

St. Glair. Returned and counted, Turpiu 8, McDuffie 0. Counted
by the committee, Turpin 8, McDuffie 214. At this precinct it is shown
that there are about 260 colored Republicans and 4 white and 4
colored Democrats. When the time for opening the polls arrived the
Republican inspector asked the Democratic inspectors to open the
polls, and was informed that there would be no election there that day
and none at Lowndesborough. Thereupon this inspector, in compliance
with the law and with the assistance of the U. S. supervisor, opened
the polls and held an election, and made return as the law directs, at
which election the Republican ticket received 21 1 votes. A return is
found in the clerk's office showing that an election was held in the
beat and that Turpin received 8 votes ; McDuffie none. That is all the
evidence there is in the record about any other election in this beat
than the one held by the Republican inspectors, and yet the county
board counted the Democratic return and ignored the other. The Re-
publican inspector's return is fully proved, and the two taken together
show that when there is an honest count the Republicans adhere
strictly to their party ticket.

Farmersville. Returned, Turpin, 26; McDuffie, 0. Counted by com-
mittee, Turpin, 26; McDuffie, 40. Two polls were held in this precinct.
At one McDuffie received 40 votes and at the other Turpin received 26
votes. Both elections were duly returned, but the county board counted
only the one where the Democrats voted. The poll where the Repub-
licans voted was duly opened by a lawfully appointed inspector, a board
organized according to law, and the election held according to legal
requirements. There is a dispute as to which poll was opened first.

The result of the two elections, held side by side, shows the true
vote, and we count both returns. We have already stated the situa-
tion in this district and the justification and necessity for these pro-
ceedings.

Fort Deposit. In this precinct the regularly appointed inspectors

M'DUFFIE vs. TURPIN. 281

refused to opeii the polls, and prevented the electors present from
doing so. Late in the afternoon, after the Republicans had gone home
and just before the closing hour, the Democratic inspectors opened the
polls and received the Democratic votes, had them returned and
counted. The precinct is largely Republican, and had the polls been
duly opened McDuffie would have received a majority. There was no
opportunity for the voters to deposit their ballots, the pretended elec-
tion was but a pretense, and we reject the return.

WILCOX COUNTY.

Snow Hill. Returned, Turpin 464, McDuffie 103. Counted by com-
mittee, Turpin 82, McDuffie 445. The testimony in regard to this pre-
cinct can be found on pages 123-130, 130-134, 138, and 140, forcoutest-
ant, and forcontestee on pages 668, 614, 615. There are 500 colored
voters in the precinct, only 4 of whom are known to be Democrats.
There were at the election 75 white Democrats and 1 colored Demo-
crat. All the inspectors were Democrats. The Republicans were
fully organized, tickets were given out by one appointed for the
purpose. A clerk was appointed to keep a poll-list of all the Republi-
cans who voted, the Republicans refusing to vote unless this precau-
tion was taken to preserve the evidence of how they voted.

After some 247 had voted and had their names recorded the deputy
sheriff, acting under telephone orders from the sheriff, as the sheriff
himself testifies, undertook to forcibly take this list from the outside
clerk who was keeping it. In doing this he was acting without legal
right, was committing an outrage upon the Republican, voters, for the
sake of destroying evidence. The Republican clerk tried to hold on to
his poll-list, and resisted the assault made upon him. In the melee the
deputy sheriff was knocked down, as he says, and when he arose com-
menced firing indiscriminately, killing a Republican by the name of
William Banks. One of the parties, M. Davidson, started to run away
with the poll-list, and was pursued by other Democrats, who kept firing
at him until they wounded and stopped him. Henry Hawkins, another
colored Republican, was also wounded.

After this the Republicans were not permitted to keep a list of names,
but so determined were they to be prepared to prove their exact vote,
that they continued to keep tally, and the poll-list and subsequent tally
are in the record, showing 445 colored men who voted the Republican
ticket that day. The evidence is clear, intelligent, and conclusive as
to this number, and also that only about 75 whites voted that day. If
the return is true, it follows that 341 of these colored Republicans voted
the Democratic ticket, together with 120 white men, 45 of whom were
not at the polls.

The return requires the belief that out of this body of nearly 500
colored Republicans, who were actively proclaiming their Republican-
ism at the polls, who refused to vote unless an outside record was kept,
who as one man were protesting against the surrender of this poll-list,
who saw one of their number murdered and two others wounded in the
attempt to preserve the list, three out of every four voted the Demo-
cratic ticket in some secret way not attempted to be disclosed. We
count the vote as it is clearly proven in the record by competent testi-
mony, andgive to Turpiii the votes conceded in the notice of contest.

These parties were not content with killing a Republican leader, but
must go further and attempt to blacken the character of the witnesses
to the crime. The testimony of the deputy sheriff himself shows him

282 M'DUFFIE vs. TURPIN.

to have committed the crime of murder in his attempt to pave the way
for a fraudulent return ; and this is the same deputy sheriff who was so
willing to guaranty protection to contestant when he was ordered out
of Wilcox County during the taking of testimony.

Allenton. The returns from this precinct show a total vote of 309, of
which number Tarpiii is given 242, and McDuffie, 67. J. L. Grace, an
intelligent colored man and a member of the Republican executive
committee, testifies on page 142, that he stood during the day from 35
to 40 feet in front of the polls and issued the Republican tickets; saw
each man vote the ticket handed to him. The voters held their tickets
so that they could be seen until they were handed to the inspector.
Three hundred and sixteen men voted the Republican ticket, and only
three colored men voted Democratic. Not over 40 or 45 white voters in
the precinct. If the return is true, over 200 of the colored men voted
Democratic, while only 64 voted Republican. No attempt is made to
contradict the testimony for contestant or to sustain the return.

Bethel. According to the return for Bethel there were 400 votes
cast, of which 385 were for contestee and only 15 for contestant. The
proof shows that McDuffie received 343 votes instead of 15. A com-
plete list of these votes was kept by two persons selected for that pur-
pose, standing in front of the polls. Each voter took his ticket, voted
it, and had his name registered before the next man took a ticket. The
colored men here were active and earnest Republicans. The inspectors
were Democrats, except an ignorant colored man, who could neither
read nor write.

B. W. Lewis (page 262), B. J. Dickson (page 242), and Charles Per-
kins (pages 257-272), all of them intelligent young men, who had had
a fair education, attended to the Republican tickets, and each saw and
testified to the whole vote. They also show that there were 57 Demo-
crats who voted. They say there are some 77 Democrats in the pre-
cinct, but that 20 of them did not attend the election.

Every obstruction was placed in the way of taking this testimony.
In Dickson's examination-in-chief there are 70 lines of questions and
answers, and 265 lines of objections (Record, page 242). Jn Perkins'
examinatiou-iu-chief there are 33 lines of questions and answers, and
144 lines of objections (see page 257). No attempt is made to contra-
dict this testimony or to sustain the return.

If the returns were true, it would follow that 328 colored men voted
the Democratic ticket and only 15 the Republican ticket, notwithstand-
ing their compact organization and earnest Republicanism. But the
returns are not true.

White Hall. According to the returns there were 142 votes cast at
this precinct, 116 of which were given to Turpiu. The proof shows that
McDuffie received 84 votes instead of 26.

L. E. Fisher (page 251) and D. S. Robins (page 260), two educated
colored men, issued tickets and kept a complete poll-list of the Repub-
lican voters, which poll-list is in the record. They issued 85 tickets,
but one of the men did not hold his ticket so that they were certain of
his vote, and they erased his name, thus showing the care taken to
secure accuracy. The work was well organized, and the witnesses tes-
tify with an intelligence and candor which carries conviction of truth-
fulness.

Charles Garrison, an intelligent man, was appointed inspector for the
Republicans but was refused admission to the polls and the election
was conducted exclusively by Democrats.

As another example of the obstructive method resorted to by con-

M'DUFFIE vs. TUEPIN. 283-

testee to prevent the taking of testimony, we refer to Fisher's testimony,
on page 251, where will be found 65 lines of questions and answers and
293 lines of objections.

The evidence shows that there is but one colored Democrat in this
precinct, and yet, according to the returns, 58 colored men voted the
Democratic ticket. No attempt is made to sustain the returns. The
inspectors seem to have been willing to make a false return, but not
quite willing to commit perjury to sustain it.

.Clifton. According to the returns 215 votes were cast at this pre-
cinct, of which 190 are accredited to Turpiu and only 25 to McDuffie.
The evidence shows that 204 votes were cast for McDuffie. The tally
was kept by Frank Black (page 263), an intelligent colored man. His
testimony is confirmed by James Wicker (page 264). The colored in-
spector, who can neither read nor write, testifies that he took the tick-
ets, handed them to another inspector, and he to the third, and that he
does not know what the third inspector did with the tickets. The in-
spector who deposited the tickets in the box is not called. One of the
inspectors and one other witness are called to sustain the fairness of
the election, but both of these witnesses were called after contestant
had been driven from the county, and without notice. To sustain the
return requires the belief that i?9 colored men voted the Democratic
ticket while only 25 voted Eepublican.

Blade's Bluff. According to the returns 251 votes were cast at this
precinct, 213 being credited to Turpiu and 38 to McDuffie. According
to the evidence McDuffie received 205. Henry E. Irvin (page 2G5) and
W. J. Shelbern (page 270) kept the tally, and Coffee Fisher (page 265)
issued the tickets. The evidence is clear and convincing. Great pains
were taken to secure accuracy, and there was little chance for mistake.
Cross-examination brings this fact out fully. The inspectors were all
Democrats one a colored Democrat, well known for many years as such,
but he was illiterate, and could not tell whether the return was correct
or not.

In the absence of any one representing contestant, without notice to
him, and after he had been compelled to leave the county, this colored
inspector and one other were called to sustain the returns. Testimony
taken in such a way is entitled to little credit, taken'in connection with
the other circumstances in this case, and a perusal of it will show that
it would probably not have been taken had any one been present to
cross-examine. To sustain this return requires the belief that 167 col-
ored men, known as Eepublicans, voted the Democratic ticket, while
only 38 were faithful to their party.

Prairie Bluff. According to the return there were cast at Prairie
Bluff 259 votes, of which number Turpin is credited with 245 and
McDuffie with 14. Grauville Bennefct (page 274) stood in view of the
polls and kept a list. Two hundred and forty-one Republicans voted
the Eepublicau ticket and 13 others, being the whole number of Dem-
ocrats that attended the election, are credited as voting Democratic.
The list is in the record. L. J. Sikes distributed the tickets, and wit-
ness saw each one voted. He was about 30 feet from the polls. Saw
each of the 241 Eepublican ballots voted. He is intelligent, and gives
particulars, showing that he had absolute knowledge of the Eepublican
vote cast. He also says that he knows the white inspectors of the
election well, and that they are not regarded as truthful, and he would
not believe them under oath.

J. L. Sikes (page 278) says that he was born in the beat ; that 241
, votes were cast for McDuffie and 13 for Turpin. McDuffie was pop-

284 M'DUFFIE vs. TUBPIN.

ular and polled the full vote of his party. The inspectors were all
Democrats.

PatPulloin, the colored inspector, is sixty-four years old, can not write;
testifies himself tliat he has been a Democrat since 1880. He received
the tickets and put them in the box, and saw them taken out aud
counted. Didn't see Sikes or Bennett distributing tickets.

George McCurdy (page 487) was at the election and didn't see the
witnesses, Sikes and Bennett, and says that it was a fair election. .

Joe Robinson (page 488), one of the inspectors, testifies to the same.
These witnesses were examined in the absence of any one to cross-ex-
amine them under the circumstances heretofore detailed. The evi-
dence is guarded and short and very unsatisfactory, besides bearing
marks of untruth.

It may be said of this precinct, as of others, that the election board
was illegally constituted, and that the returns are simply an inversion
of party strength. The Republicans took no especial pains to insure
accuracy in their list of Democrats voted, aud it is probable that 14
Democratic votes were cast instead of 13, as there was one black man
who voted Democratic, and 3 votes were added for good measure.

The list of 341 black Republicans who attended and voted is in the
record. Regarding the returns as true, it follows that 327 colored
Republicans voted Democratic and only 14 were faithful to their party,
notwithstanding their expressed desire when in the act of voting to vote
the partfr ticket. It further follows that in a manner so secret that it
could not be observed they changed their tickets in going 30 feet, while
holding their tickets out from their bodies and in such a position that
their chosen chairman could see them aud give evidence of the fact.
It is sufficient to say that the committee gives full credit to the record
kept by the Republicans to protect themselves against the well-known
methods of the Democrats.

foiling Springs. Two hundred and forty-two votes are returned
from this precinct, 200 for Turpin and 42 for McDuffie. James Wad-
kins testifies that as well as he can remember 239 votes were cast. 212
for McDuffie and 27 for Turpin.

C. B. Taylor (page 279) says McDuffie is popular, and that there are
two or three colored Democrats in the beat.

S. J. Dixon (page 280) testifies that 242 votes were cast, 214 for
McDuffie and 28 for Turpin. His list is in evidence ( page 280), con-
taining the names of both Republicans and Democrats in separate lists,
showing the extreme care of the Republican managers to keep an ac-
curate record of the election.

Dixon distributed the tickets, and D. L. Moore, J. J. Carter, and J.
W. Lovett kept tne poll-list. The colored inspector at this poll could
neither read nor write, and is credited in the list as having voted Dem-
ocratic. Dixon is an intelligent man and stood a severe cross-exami-
nation. He could not see the inspectors because they were inside the
house. Tickets were handed through the window and he could not'see
the hands of the inspector. He saw the 214 Republican tickets handed
into the window, but did not see the hand of the inspector who received
them. If it was necessary to see the hand of the inspector to know how
a man voted he could not tell how they voted.

On this slender thread the contestee hangs his case to sustain this
poll without further evidence of its correctness. This is a fair illus-
tration of the principle underlying the cross-examinations, and of cou.-
testee's idea of destroying the reliability of a witness's knowledge.
There were six more tickets given to colored men, but as they were not
seen to vote them, their names are left off the list.

M'DUFFIE vs. TURPIN. 285

Here, then, are 214 colored men who took Bepublicau tickets, passed
them to the inspectors, and then had their names registered; but
the inspectors returned but 42 of them as having been counted. Here
are 27 white men at the polls and one colored man (the inspector),
known as a Democrat, and yet out of this list the inspectors work out
200 Turpiu tickets, but they do not venture to testify to the correctness
of the count. That is to say, 178 of these colored Eepublicans voted
against their party, against their declaration while in the act of vot-
ing, and against their assertion then and there when they required
their names to be registered as having voted the Eepublican ticket.

The notice of contest does not permit of giving to contestant the full
vote cast for him, as only 200 are there claimed, and 42 are conceded
to Turpin. This was the result of mistaken information and results in
depriving a number of voters of their votes, but the committee are dis-
posed in this case to count the vote as charged in the notice.

Canton. Two hundred and thirty-four votes were returned from Can-
ton, of which 223 were credited to Turpin and 11 to McDuffle.

James A. Dargans (page 290), a school teacher, but not an active poli-
tician, kept the tally of the Republican votes cast at this box. Win.
Rhea distributed the tickets ; 188 were voted and tallied. Every ticket
given out by Rhea was shown to Dargans, then immediately taken to
the inspector, and then tallied. One voter went to the polls and
handed in his ticket, and when he was tallied the next voter went for-
ward, and si on till all had voted. Tickets were handed in through
the window, inspectors in sight, but not the box.

Witness watched the voter and the ticket in his hand until it was
handed in to the inspector. The crowd was kept back, so that no one
was between the witness and the window, and no one near the voter.
The hand that held the ticket was in constant view until the ticket was
voted. The witness was severely cross-examined, and coutestee satis-
fies himself that he has discredited the witness and shown that he did
not know how the voter really voted because the witness says that he-
could not see the ticket after the hand was put into the window, but
did see it until it was handed to the inspector.

Out of 188 colored Republicans voting at this precinct, and each tak-
ing special pains to show that he voted the Republican ticket, the in-
spectors generously counted 11 for the Republican candidate, and with
only a handful of white voters present, manage to give contestee 223.
The inspectors and clerks were Democrats. None of them are called
to explain or sustain this wonderful feat of turning Republican votes
into Democratic ones when making up the returns.

Oeesbend. The returns of Geesbend show 205 votes cast, of which
Turpin is credited with 190 and McDuffie with 15.

Isbain McLaughlin (page 293) testifies that he has lived in the beat
ever since the war; that he distributed and saw voted 192 Republican
tickets with McDuffie's name on them, and that Sam Petway kept the
poll list. He- further says that there are but 7 white voters in the
beat, all of whom voted that day. The colored inspector could not
read or write.

Petway testifies that McLaughlin gave out the tickets ; that each
ticket was brought to him and then voted, and as soon as he had voted
the voter would return to him and have his name registered as voting ,
the Republican ticket. Out of these 192 colored Republicans the in-
spectors generously return 15 as voting Republican, and with only 7
white men, take 190 for themselves. No attempt is made to sustain the
return.

286 M'DUFFIE vs. TURPIN.

PERRY COUNTY.

Hamburg. According to the returns there were cast at Hamburg
295 votes, of which Turpin is credited with 212 and McDuffie with 83.

J. C. Hames (page 145) testifies that Thomas Huey issued the Repub-
lican tickets, and he read them and kept the tally as fast as they
were voted ; saw 256 vote the Republican ticket straight. One colored
man and 44 whites voted the Democratic ticket. With one exception
the colored men were Republicans and warm supporters of McDuffie.
The tally was kept at the request of the voters to guard against fraud,
and when the result of the count was announced there was great dis-
satisfaction among them.

An attempt is made to sustain this return by one of the clerks of the
election who says the ballots were correctly counted u as found in the box,"
and by a United States supervisor who says he was in and out of the
room while the voting was going on. This supervisor says there are
some 50 white men and 300 colored men in the beat, and that he knows
of some colored men who vote the Democratic ticket, but he refuses to
give any names. He was impudent in his answers, and his evidence
shows that he gave opportunity to tamper with the box if the inspect-
ors were so disposed. The language of the clerk, "As found in the box,"
shows careful choice of language, but even this clerk acknowledges that
he did not read the tickets ; he only kept tally as the tickets were read.

If the returns are true 173 colored men voted Democratic and only
83 voted Republican, although all of the 250, in the very act of voting,
announced themselves as Republicans and had their names taken down
as such. The witness for contestee, who claims to be well informed, a
colored man himself, could not or would not name a single one of all
this number who was a Democrat. The evidence satifies the committee
that the return was not correct and did not represent the true state of
the vote cast. We count the vote as the evidence shows it to have
been cast.

Marion. According to the returns 783 votes were cast at Marion,
of which 697 are credited to Turpin, though there are about 700 col-
ored voters and comparatively few white voters in the precinct.

According to the testimony of J. T. Wilson (page 232), confirmed by
that of Mat Boyd, there were at least 583 votes cast for McDuffie.
Witness saw all these voters go to the polls with Republican tickets
and hand them to the inspectors. Just before reaching the window
where the votes were delivered the voters had to pass behind a coal-
shed, which did not cover the voter, but left his hand out of view.
With this exception the voter had no chance to change tickets without
being seen. No one was near enough to the voter to give him a ticket
from the time he started until he voted, and none but straight Repub-
lican tickets were given to the voters or circulated among them.

There was a Republican supervisor at this poll, and when the polls
we'-e closed the Democratic inspectors refused to go on and count the
ballots, but waited until dark, and then were told by the clerk of the
court that he wanted that room but we will let the witness tell the
story, as an abstract would not do full justice to the evidence.

NICHOLAS STEPHENS sworn :

Q. What is yonr name, age, and where did you live on the 6th of November last,
and how long had yon lived There ? -A. Nickolas Stephens is nay name ; am about 43
years old ; I lived in Marion beat, Perry County ; have lived there about 25 years.

Q. If there was an election lu-ld there that day, state for what purpose it was held,

M'DUFFTE vs. TURPIN. 287

who were the Republican ami Democratic candidates at said election, and what connec-
tion did you have with the election.

(Contestee objects because the matters inquired about are matters of record, and the
record i tself is the best evidence, and a, predicate has not been laid to show these facts
by first showing the loss or destruction of the record.)

A. There was an election held for President and Vice-Presideut, and Congressman
from the 4th Congressional district. Judge McDuffie was the Republican candidate
and Mr. Turpin was the Democratic candidate for Congress. I was U. States super-
visor.

Q. Who were the inspectors and clerks of said election ? And state their politics,
if you know.

(Contestee objects to the first part of the question because as to who the inspectors
were is a matter of record, the record itself being the best evidence.)

A. Mr. J. A. Lightsy, Jim Lockhart. and Joe Myatt were the inspectors ; Mr. Straton
and Mr. Woodfiu were the clerks; they were all Democrats, except Joe Myatt.

Q. Were they all warm, ardent supporters of L. W. Turpin except Myatt?

(Contestee objects because it is leading and because immaterial and irrelevant.)

A. Yes, sir.

Q. At what hour did the polls close there that day ? A. At 5 o'clock.

Q. Did you witness a count of the ballots cast there that day! If so, state fully
everything that occurred. A. I witnessed the count. After the election closed, about
a half hour a light was called for repeatedly, about three times ; a little while after
that the lamps were brought in out of the clerk's office, after which the clerk of pro-
bate came in and asked us to get out and go into the next office, that he bad some
valuable books that had to stay in there that night ; pretty soon after this Capt. C.
H. Sewell ca;i)e to me with his commission as U. S. supervisor on the Democratic
side, and wanted to read his commission to me ; about that time the inspector had
got ready to remove into the next room. Capt. Sewell was between me and Mr. J.
C. Lightsy, who had the box ; I told the captain that my commission read the same
as his, ainl the inspector had taken the box and gone into the next room, and to
please let me by, that I wanted to get in there; he said to me will they let us in
there; I said, yes, I have been here all day; and when I got in the box was sitting
on the table ; it was sometime after we got in there before they commenced to count ;
the reason of this was that they were bothered about getting a box to count the
votes out in. When they had counted to about 25 votes, Joe Myatt asked me what
had become of the Republican votes; I told him I didn't know, Judge McDuffie
had to come and see after the votes ; the majority of the tickets that were counted
were Democratic tickets and "imitation" tickets, which imitation tickets had
on the Republican electors with L. W. Turpin as candidate for Congress. The
whole vote was 783, and in the count there was 805 ; I asked the inspector how
could they count more votes than was polled ; at that time Mr. Dick Lightsy came
in and stated that the clerks, or Joe Myatt, had made a mistake in counting the votes
they runup the count again; Mr. Stratou'scountstood the same; Mr. DickLightsy then
took his pencil and paper and showed to them their mistake ; then Mr. DickLightsy
wrote another poll-list and after he got through they then called in on the inspectors to
sign, and Mr. Jack Lightsy signed and Jim Lockhart signed, and Joe Myatt refused
to sign, and they told him that if he didn't sign they would arrest and put him in
jail, after which I asked the inspectors privilege to ask Joe Myatt a question, and
they gave me leave. I asked Joe did he conscientiously believe that the box that
the votes were counting out of was the box in which' they were deposited, and he
stated to me that the ballots wasn't changed when counted, but he couldn't believe
that Judge McDuffie got as few votes as he did there ; then I said to him that if he
had reason to believe that the box counted out was not the box that the votes were
deposted in, he had no right to sign the return. Then Mr. Dick Lightsy walked up
to me, shook his fingers in my face, and called me a damned fool, and said that I had
always acted as such, after which I was called in to sign those official returns, and I
refused to do so.

(Contestee objects to this answer because the facts testified to are immaterial and
irrelevant, and because it is heresay ; and the conclusions of the w itness based not
upon facts within his knowledge, but upon the vague suspicions of Joe Myatt.)

Q. Was this Dick Lightsy, of whom you have been speaking, a member of the
Democratic or Republican party ? A. A member of the Democratic party.

Q. Was he one of the officers whose duty it was to hold the election in that beat on
that day ? A. He was not.

Q. Did he have any connection with the election which gave him the right to be in
the room or participate in the count of the vote which was cast that took place in
that room on that day? A. He had no right in there at all, but he ran the whole
business.

Q. Was not the said Dick Lightsy a warm and ardent supporter of L. W. Turpin in
candidacy for Congress at that election ?

(Contestee objects because leading aud because immaterial.)

288 M'DUFFIE vs. TURPIN.

A. He was.

Q. You have stated in your answer to a former question that the said Dick Lightsy
wrote out a poll-list; do you mean to be understood as saying that he made out a
different poll-list from the one kept during the day by the clerks, and that he changed

(Contestee objects because leading, in that it suggests the answer sought, and be-
cause if such a poll-list exists it is itself the best evidence as to its contents, and no
predicate has been laid by showing its loss or its destruction for the introdpetion of
secondary evidence.)

A. He wrote a return and not a poll-list ; he copied one from the printed form.

Q. Did the inspector's returns as written out by the said Dick Lightly show the
number of 805 votes that were found in the box, and of which the inspectors were
counting ?

(Contestee objects because leading.)

A. No, sir.

Q. Then the said returns or the box from which the count was made was fraudu-
lent, wasn't it?

(Contestee objects because leading, and because the question requires as au auswer
n conclusion of law, and the answer when given would be but an opinion of the wit-
ness upon a legal conclusion.)

A. I refused to sign it on the grounds that I believed it was fraudulent.

Q. Did you see the box in which the ballots were placed during the entire time the
voting was goiug on? A. Yes, sir.

Q. Did you ever see the box in which the ballots had been placed after C. H. Sewel
got between you and the room in which the said ballot box had been carried ? A. Not
until I got in the room.

Q. Was the boxthat yon then sawthere the identical box in which you had seen the
ballots deposited during the day ? A. I couldn't swear it was the box.

Q. Why is it that you couldn't swear that it was the box, and did you notice any
difference in the box? A. Because the box we used all day was a new box, and the
one I found in there was a new one, and I couldn't discover any difference in the box.

Q. Did you notice the way the tickets were folded when they were put into the box
during the day ? A. Yes. sir.

Q. Was the tickets that you saw counted out of the box folded into the same manner
as those you saw put into the box? A. No, sir.

Q. How long was the ballot-box out of your sight after the close of the polls and
before the count commenced ? A. About a minute.

Q. Could not a box that had been prepared for the purpose be substituted in place
of the true box during the time it was out of your sight?

( Contestee objects because it is leading, and because the notice of contest alleges
a false and fraudulent count of the vote cast and does not charge that it was done
by a substitution of one box for another ; wherefore contestee says the evidence here
sought is not pertinent to the issue.)

A. Yes, sir.

Q. Could you see the ballots that were deposited with the officer whose duty it was
to receive them on that day at that election ? A. I could.

Q. Give, as near as you can, the whole number of Republican who voted at that
box on that day. A. I think about 597.

Q. Give, as near as you can, the whole number of Democrats who voted at that box
on that day. A. About 175 or 180.

Q. Are you not well acquainted with the Republican voters who cast their ballots
at that election on that day ? A. I am.

Q. Was there a single one of them who was supporting L. W. Turpin for Congress
at that election ? A. I know of one.

Q. Was there any other than the one you speak of? A. No, sir.

Q. Then were not the 597 Republicans who voted at that box on that day support-
ers of J. V. McDuffie in his candidacy for Congress at that election ? A. Yes, sir.

Q. Give, as near as you can, the whole number of votes received by J. V. McDuffio
for Congress at that election on that day.

(Contestee objects because the poll-lists and official returns are the best evidence
of the number of votes oast and for whom cast, and because the said question tends
to invade the secrecy of the ballot-box, and because it is to a fact that could be but
a matter of opinion and not without the knowledge of the witness.)

A. About 597.

Q. Did you make out a supervisor return of said box ; and, if so, when did you make
it out ?

(Contestee objects because it has not been shown by competent evidence that the
witness was authorized by law to make out such return.)

A. I made out such a return on the morning of the 7th.

Q. Did yon give in said report anything other than a report of the count made by
the inspectors of the elections? A. I did not.

M'DUFFIE vs. TURPIN. 289

Q. Did you fill ont tlie Wank in said report for the supervisors' count ? -A. I did.

Q. Look at the paper that is now shown yon and see whether or not you are mis-
taken when you say you filled out the blank for the supervisors' report ? A. Yes, sir ;
I see my mistake.

Q. Then you did not make any count or return any as supervisors' count, did you T
A. No, sir ; I did not.

Q. Was not the reason that you failed to make a supervisors' count because you be-
lieved that a false box had been substituted for the true box in which the ballots had
been placed f

("Contestee objects because it is a leading question.)

A. Yes, sir.

Q. State whether or not you did not further believe that the ballots that were counted
were other and different ones from those that had been voted by the voter.

(Contestee objects because it is leading and because founded upon an assumption
that there are no facts to support.)

A. Yes, sir ; I did.

Q. State whether or not you had seen any of these imitation tickets which you say
were counted out of the box distributed or circulated amongst the Republican voters
at that boat on that day ? A. I did not.

Q. Was not the first knowledge that the Republicans of that beat had of the ex-
istence of those imitation tickets the time when they were counted out of the ballot-
box f A. Yes, sir.

From this evidence the fraud is made to appear clearly. The super-
visor, who had faithfully discharged his duty, had, up to the closing of
the polls, effectively prevented fraud. To change this large Eepublican
beat into a Democratic one required further work. Hence the delay
in commencing the count, the demand for a change of rooms, the ap-
pearance of the Democratic supervisor in the nick of time, the removal
oi the box from the sight of the watchful Eepublican supervisor by the
ruse of stopping him to see whether his associate's commission read as
his did, the change of boxes, and the substitution of one already fixed
for counting. The bollot-box stuffer, however, had miscalculated the
number of votes which would be deposited after he had prepared his
box on the basis of those already cast and his estimate of the rest, for
he got into his fraudulent box 22 more than the number actually voted.
Here, too, appears a large number of tickets having the names of the
Republican electors on them, and the name of Turpin for Representative.
No such tickets were voted or circulated among the voters.

It may be remarked here that this kind of a ticket was found in boxes
in various parts of the district, and it is sought to be shown that this
ticket was voted by Republicans. In many places in the record this
suggestion is made by way of showing that Republicans may have been
mistaken in supposing that they voted for McDuffie, that they ignor-
intly voted this ticket. It does not seem to have suggested itself to
~ie attorneys taking the testimony for contestee that proof of such
leception would only be additional evidence of fraudulent practices.
?he care taken against such fraud prevented its success, except si) far
ballot-boxes were stuffed.

In this beat a man by the name of J. 0. Lightsey was substituted for
the regularly appointed inspector. Lightsey removed the box before
the counting commenced ; Lightsey and his brother, who had no busi-
less with the counting, fixed the returns and poll- lists to suit thein-
ilves, and to Lightsey were committed the ballots when the count was
>mpleted. The fraud was so apparent that the colored inspector
refused to sign the returns when the count was completed, and Lightsey
undertook the work of compelling him to do so, threatening him if he
refused.

One of the Democratic inspectors is called as a witness, and only
shows that he does not know whether the box was changed or not ; but
Lightsey does not appear as a witness. The cross examination of this
fl. Mis. 137 19

290 M'DUFFIE vs. TURPIN.

inspector shows both his want of knowledge and his want of candor.
Neither of the clerks testified.

Of the 583 colored Republicans who voted at Marion that day, 86
only are credited to their candidate. The fraud is apparent, and we
correct the return according to the best obtainable evidence. '

Rehobeth precinct. The committee does not change the return, al-
though the evidence raises serious doubts as to its correctness.

Scott and Polecat precincts are also left as returned.

Uniontown. There were two boxes in this beat, and returns
were made by the officials holding each election. At one the
Eepublicans voted, at the other the Democrats. The return which
was counted gave Turpiu 210, McDuffie, 2. The other return gave Mc-
Duffie 953. Dr. J. H. Houston's testimony (300) gives the history of
the election where the Eepublicans voted, and shows that all the forms
of law were complied with. The sheriff of the county (446) shows that
the returns were presented to him and he refused to receive them. The
box was retained and its contents counted in the presence of the com-
missioner taking the testimony.

There is a dispute about the time of opening the different polls, but
in our view the question is not material in this particular case. That
the two polls taken together constitute an honest statement of the
result of the election, and show the exact state of the legal vote, we
have no doubt. They also show that where there is an honest count
the Republicans adhere to their party ticket.

The action of the election inspectors for this precinct at the election
for the Fiftieth Congress justified the action of the Republicans. In-
deed, it was apparently the only course left open to them to prevent
their votes from being counted for the Democratic candidate. At that
election the returned vote was:

Davidson (Democrat) 720

Turner (Independent) ...'203

McDuffie 65

The majority of the committee in that case found from the Evidence
such frauds as destroyed the return, and from the evidence gave Mc-
Duffie 400 and Davidson 8. The evidence indicated a Republican vote
of over 800, but the majority of the committee found that only 400 were
satisfactorily proved.

in extraordinarj 7 cases, and where it appears that in no other way
can the actual will of the voter be ascertained, a resort to methods not
technically in accordance with statutory direction may be justifiable,
and upon proof that a full, fair, and honest election has been held by
those only who are qualified voters, under these circumstances the re-
turns from such an election, when duly proved, may be considered and
counted.

Cunningham and Walthall. These returns are not changed by the
committee. While the evidence cast some doubt upon their correctness,
it is not deemed sufficient to justify their rejection.

Ferryvilte. Return is rejected because neither return nor poll-list is
signed. If notice of contest is to be taken as conclusive upon contest-
ant, this return should not be rejected, but 60 votes should be counted

M'DUFFIE vs. TURPIN. 291

for contestant and 123 for contestee. In that case contestant's majority
as found by the committee would be diminished by 03 votes.

HALE COUNTY.

Of the nine precincts in Hale County attacked by the evidence, the
committee find that in only three is the evidence sufficiently conclusive
to require a rejection of the returns and an ascertainment of the true
vote by other evidence.

Greemborough. According to the returns there were 897 votes polled
at this beat, 577 of which are credited to Turpin and 320 to McDuffie.
Dave Jones (page 37), with the assistance of Armistead Hunter, kept
the poll-list of all who voted the Republican ticket. The list, containing
G97 names, is in the record (page 38). These men all had their names
recorded as voting the Republican ticket, and all but two or three went
directly to the polls and voted. Matthew Morse issued the tickets.
The issuing of these tickets and keeping the list in the manner shown
by the evidence was according to prearrangement, so as to secure an
honest count. Hunter says there are 600 to 700 colored voters in the
beat, and only five or six Democrats among them. The Republicans
were warm supporters of McDuffie.

Here we have a prearranged plan for ascertaining the vote the issu-
ing of tickets one at a time, the going directly to the polls and voting,
and the request of each voter to put his name down as voting for Mc-
Duffie. These men were Republicans, they voted, and while in the act
of voting declared their adherence to their party.

The witnesses were cross-examined, and showed both intelligence and
carefulness to testify only to their personal knowledge.

Clark, the colored Republican inspector, could neither read nor
write. He was called as a witness for coutestee and says that some of
the colored men changed their tickets, and that the election was hon-
estly conducted. ISo one was present to cross-examine him. He was
too ignorant to detect false counting, and his testimony shows his evi-
dent sympathy with the Democrats, while it further discloses the fact
that the return could not be true.

M. V. Hill, a colored man, testifies that he got a ticket from Morse,
gave it to Captain Jones, and voted a Democratic ticket. The care of the
Republicans in keeping their list is shown by the fact- that Hill's name
is not on it.

T. W. De Yampert (page 548), for contestee, testifies that he was reg-
istrar of voters at that beat; that he registered from 75 to 80 colored
voters on election day, and gave them Democratic ti kets and saw some
of them go to the court-house with them.

C. C. Gewin (page 398) testifies that the Republican poll-keeper could
not see the ballot-box, and that Democratic tickets could be had by the
voters.

At the election for the Forty-eighth Congress this precinct gave 630
Republican votes and 194 Democratic votes. By the present return
party majorities are almost reversed.

It will be seen that the voters of this district are mostly colored, that
neither of the white inspectors or clerks is called to testify, only the
colored inspector who could not read or write, and that the only colored
man who says he changed tickets, is not on the Republican poll-list.

It is further to be observed that the colored men, with few excep-
tions, are Republicans, and actively testify to their loyalty to the party,
and therefore when a return shows that in addition to the colored Dem-

292 M'DUFFIE vs. TURPIN.

ocrats of the beat at least 377 of the colored Eepublicans voted the
Democratic ticket, against their expressed determination and open dec-
laration at the polls, it is evident that some one has been juggling with
the tickets or returns, especially when we take into consideration the
further fact that there was a general conspiracy on the part of the Dem-
ocratic leaders throughout the district to falsify the count.

Hollow Square. From Hollow Square beat there were returned 531
votes, of which 362 are credited to Turpin. Here, by pre- arrange-
ment, Motley Kediford (page 48) issued the tickets, and S. J. Hunt
(page 50) kept the poll-list. This list, as found in the record, contains
the names of 475 voters. Each of these witnesses testifies that lie saw
each voter from the time he took his ticket until it was delivered to the
inspectors, that the ticket was held in the voter's hand so that it could
be seen from the time it was taken until it was voted, and that each
name was registered at the request of the voter, that the voters fell
into line behind the stand of this clerk, chosen by them, and went for-
ward to vote one at a time. This poll-list is identified by the witness
who kept it, and by a committee composed of L. B. Pierce, Perry Glow,
and Alfred Borden.

Six colored men voted Democratic, only 50 whites voted that day,
according to this evidence, and 475 colored men voted the Republican
ticket, and yet the return gives 362 to Turpin. Here again the colored
inspector was illiterate, and no attempt is made by contestee to sustain
this fraudulent return.

Cedarville. The returns from Cedarville show that 517 votes were
cast, of which 364 are credited to Turpin.

James T. Fredd, a very intelligent colored man (page 56), kept a list
of 490 colored meu who voted for McDuffie and the Eepubliean ticket
(page 57). He testifies very positively that he was some 30 feet
from the polls, and saw every ticket voted. He was subjected to a
cross-examination extending through several days ; 586 cross-questions
were asked and answered. During all this long and largely frivolous
cross-examination he kept his temper, and sustained himself as an
intelligent, truthful, and painstaking witness.

The conduct of contestee's attorneys in this cross-examination can
not be too severely condemned. Its purpose was, without any doubt,
to use up time and prevent a full disclosure of all the frauds perpetrated
in the fourth district, advantage being taken of the fact that the com-
missioners had no power to put an end to such reprehensible methods.
This witness knew of one colored Democrat in the beat.

Dick Crook (page 80), another witness for this beat, is asked 214
cross-questions of like character with those put to Fredd and with like
purpose. He issued the tickets and helped to watch the voters, and
fully comfirins Fredd. He testifies that there are about 25 white voters
in the beat. This would give 490 colored Eepublicans, 25 white and
two colored Democrats. Yet the returns show, if true, that Turpiu got
339 colored votes, or 3 out of every 4.

For the contestee, D. W. Ward (page 548) says he was clerk at the
election, that it was held in the street with a rope stretched around, that
there was a crowd around the polls, and that Crook could not see how
the men voted. He says that after the polls were closed they went into
a vacant store and counted the votes, and that he kept a correct tally.
No friend of contestant was present to witness the count. O'Donnell,
Democrat, and Van Hambright, colored Eepublican, counted the votes.

Van Hambright (page 550), the illiterate colored inspector, who was
too ignorant to know how the votes were counted, testifies that every-

M'DUFFIE vs. TURPIN. 293

thing was fair. Says he was a Kepublican, but is not asked how he
voted. No one was present on the part of contestant to cross-examine
him. He is, however, considered as a Republican and is recorded as
such. The Democratic inspector who counted the votes is not called.
The return is evidently a fraud, and we ascertain the vote by the best
attainable evidence.

DALLAS COUNTY.

Martin's Station. According to the returns 411 votes were cast at
Martin's Station, 383 being credited to Turpin and 280 to McDuffie.
Ned Petway (page 146), au intelligent colored man, who can read but
can not write, issued and saw voted 324 Republican tickets with
McDuffie's name on them. He was rigidly cross examined. Acton
Mappin (page 154) kept a pole list of the 324 Kepublican voters, which
list is in the record. He identified the list and testified that there
was no chance for the voter to exchange tickets from the time the
ticket was taken until it was voted. A witness for contestee names
three colored men who voted the Democratic ticket. The fact that their
names are not on this list helps to confirm its accuracy.

Nathan Stratton (page 153), United States supervisor, says that
there are about 480 colored and 50 white voters in the beat, and that
he is personally acquainted with nearly every colored man in the beat,
and that about 10 of them are Democrats. He says the Republicans he; e
were earnest McDuffie men, and gave time and money to help his can-
vass. The inspectors and clerks were all Democrats, including the col-
ored inspector. Stratton says that when the count was finished, Bam-
berger, a Democratic inspector, announced that McDuffie had 355 votes,
and he answered : "All right."

Lewis Bamberger (page 558), a witness for contestee, was one of the
inspectors. He is not a citizen of the United States, but has filed his
declaration of intention to become such. He says all the officers of the
election voted the Democratic ticket. Martin received the tickets,
handed them to Wilson, and he received them from Wilson and deposited
them in the box. Says Martin called and the clerks tallied when count-
ing out. He swears to the correctness of the return, and yet he neither
kept the tally nor read the tickets to the clerks.

He avoided giving direct answers to questions about the situation of
the polling place, but after taking a rest he was obliged to own that the
place was located as testified to by contestant's witnesses. The wit-
ness prevaricates, and is neither frank nor candid in his testimony.
Neither of the other inspectors or clerks were sworn, and Bamberger
does not deny that he announced the vote as testified to by the super-
visor. Anderson, the deputy sheriff, who distributed the Democratic
tickets, says there were about 50 white voters there, and that he gave
Democratic tickets to some colored men, but refuses to say that he did
so to a large number. He names 3 (who are not on the Republican list)
and says there are 20 more. This being true, it would only make 73
Democratic votes, a long distance from 383.

Anderson testifies that Petway could not read, but Petway showed
that he could by reading to the commissioners.

In the election for the Forty-seventh Congress the Republican vote of
this precinct was 384, and for the Forty-eighth Congress 304, and as
proven in this case 324. The supervisor knew that the vote was over
300, and when Bamberger announced it as 355, he was satisfied that the
count and tally had been fair, but he did not know that when the returns
reached the county board the 355 would change into 28.

294 M'DUFFIE vs. TURPIN.

Pence. According to the returns, 208 votes were polled at Pence ; 188
for Turpin and 88 for McDuffie. Richmond Isaacs (page 152), known
and called also Richmond Sanders, issued the Republican tickets at
this beat and saw them voted, 210 in number. He reads and writes.
Objection being made to the evidence, on account of the name being
given as Sanders, he is called again (page 340), and again repeats his
testimony, under difficulties, nearly two pages of objections being re-
corded to take up time.

0. D. Martin (page 769) was the United States supervisor at this beat.
He stood at the box all day, and saw no colored man change his ballot as
he came to the polls. All the inspectors and clerks were Democrats.
When the polls were closed one of the inspectors took the ballot-box to
his home, some 200 yards away, and when the supervisor would not go
to that house to witness the count, the box was brought back, and
handed to the colored Democratic inspector, and carried away, and the
count was not made until the following day. This violation of the law
so invalidates the returns as to require proof of their correctness.
Witness says that there are only three colored Democrats in the beat,
one of whom was an inspector. fie estimates the colored vote of the
beat at 190, it being only an estimate.

Instead of calling the officers of the election, contestee calls one Will-
iam Bell (page 646), who testifies to the effect that Isaacs could not
have seen the window when the tickets were taken in. He made a bad
guess at population, and only estimates 30 or 40 white voters in the
beat.

Remarks upon the character of the evidence and the reversal of re-
turns in other beats will apply to this one as well. We count it accord-
ing to notice of contest.

MitcheWs Mill. There are two returns from this beat, neither of
which was counted by the returning board. They are copied into the
record at page 412. The facts, as established by the evidence, are that
one of the regularly-appointed inspectors appeared at the polling place
at the proper time ; none of the other officers appearing before 9
o'clock. He accordingly organized an election board, in strict accord-
ance with the law. The election was held and the returns made, as the
law directs, and as a result McDuffie received 345 votes. No Demo-
crats appeared at the polls, evidently supposing that an election would
not be held, or that if it was held by honest officers it would not be
counted.

The correctness of the return and the regularity of the election are
proved by the testimony of Abram Carson (page 157) and James
Waller (page 158). Where, or by whom, any other election was held,
nowhere appears in the evidence, nor are we informed anything about
the other return, which gave Turpin 30 votes, except that the county
board did not count it. There are about 400 colored voters in the beat
and 50 whites.

Liberty Hill. No return from this precinct is found among the rec-
ords of the county. The evidence shows that the Democratic inspectors
failed to appear at the polling place, nor did any of the Democrats of
the beat appear during the day. It was the intention to have no elec-
tion here, but the colored inspector was on hand, as was the United
States supervisor. An election board was organized according to law,
the election held, and 197 votes cast for McDuffie. Returns were made
out according to the vote ; what became of the returns designed for the
county board does not appear, but the supervisors made returns to the
chief supervisor (page 763). The voters are not to be disfranchised by

M'DUFFIE vs. TUKPIN. 295

any neglect of the officers after the election, if the correct vote can be
ascertained. In this case it is duly proved.

Burnsville. Keturus show 497 votes cast, all except 22 of them cred-
ited to Turpin. It appears that the Democrats had a ballot-box (its
contents unknown) concealed in a room adjoining the polling-place, and
tb at before the time for counting came this box was discovered by some
Republicans and carried away. This interrupted the Democratic pro-
gramme and forced a delay in Ihe count to another day and place.
Witnesses for contestant are H. M. Hall (pages 161, 173, 181) andGeo.
Smith (pages 223, 238, Exhibit page 240). Here as elsewhere the Ee-
publicans kept an outside poll-list, which is in the record.

Hall, an educated and intelligent cplored Republican, kept the tally
of 288 Republican voters, who cast their votes for McDum'e, and had
their names recorded as so voting, and Hall saw all but 5 put these
identical ballots given them into the hands of the inspectors. He is
subjected to a long and harassing cross-examination upon immaterial
matters, with the apparent purpose of getting up a scare about the
stolen ballot-box. Caught with a stuffed box concealed, they prevented
the production of the box by making it appear to the witnesses that the
man who had secured the box had committed a great crime. In almost
any other part of the country the box would have been forthcoming,
and instead of the man who had secured it being in danger of the pen-
itentiary, the men who had prepared it would be prosecuted and con-
victed.

Smith fully confirms the testimony of Hali. He not only distributed
the tickets, but helped to keep watch. It is needless to go into details,
because the method here was but a repetition of the one adopted all
over the district to preserve the evidence of the true vote.

P. R. King (page 555) testifies in rebuttal that he distributed
Democratic tickets that day. Thinks that Hall could not see the
voter all the time on account of a paling fence. Says that there
are from 400 to 500 colored voters in the beat, and that he gave
colored people that day from 50 to 100 tickets. Is questioned as to
whether or not it is well known, and made a joke of, that the colored
people are cheated out of their votes, and answers evasively, but ad-
mits that so far as he is concerned he is determined to have white su-
premacy, regardless of the colored majority. His testimony, on cross-
examination, strengthens rather than weakens the evidence for con-
testant.

David Gardner, colored, United States supervisor (page 564), George
E. Mason, (page 564), and E. D. Berry (page 565), white inspectors, all
testify to the accuracy of the count. No one was present to cross-ex-
amine these witnesses, their testimony is exceedingly short, and does
not disclose the fact that the count was made on the day after the
election, at another place, nor do they attempt to account for the
whereabouts of the box in the intervening time. This of course renders
their evidence iu regard to the count valueless. Berry, who is a lawyer,
and one of the attorneys for contestee in this case, says the law requires
two ballot boxes, evidently trying to excuse the presence of a concealed
box ; but he is mistaken in his statement of the law, and probably
knew better.

The excuse given for not counting the ballots at the close of the elec-
tion was that they were afraid of a large mob of negroes who were clam-
oring outride, and Berry tried to prove, when cross examining Hall,
that he had said he would proceed with the count if the negroes would
go away and quit clamoring to have the vote counted. Probably it did

296 M'DUFFIE vs. TURPIN.

not occur to Berry when getting up this excuse for removing the box,
that according to his subsequent return, only 22 negroes, all told, voted
the Republican ticket, and that, if his return is true, more than 400 of
the negroes were Democrats. It is indeed lamentable that three inspec-
tors, backed by from 20 to 40 white men, and 400 negroes, were afraid
of 22 Republican negroes who wanted to have the vote counted before
another stuffed box could be obtained. But of course there were more
than 22 Republican negroes; the return was a fraud, and the commit-
tee count the vote as the evidence shows it to have been cast.

Union. According to the returns, 384 votes were cast at Union beat,
of which Turpiu is credited with 299, and McDuffie with 85. The evi-
dence in this case is that of Hector Jones (page 167), Oscar Masely
(page 172) and the poll-list of Republican voters (pages 168-169-171),
and also the list of Democratic voters. The evidence is of like charac-
ter with that of other precincts, the keepers of the list being extremely
careful, and going to the extent of keeping a list of Democratic as well
as Republican votes. The list is in the record and shows 33(5 Repub
lican and 33 Democratic votes. It is in no way contradicted. We count
44 votes for contestee as conceded in the notice of contest, although as
a matter of fact he only received 33. The election officers at this beat
were all Democrats.

Valley Creek. According to the returns 490 votes were cast at this
precinct, 401 being credited to Turpin. The evidence is of like charac-
ter with that of other precincts; a complete poll-list of the Republican
voters was kept and is in evidence, and shows that 382 instead of 89
votes were cast for McDuffie. C. H. Myatt (page 179) and J. H.
Goldsby (page 392) were the Republican managers at the election, and
furnish the proof. A Republican United States supervisor was ap-
pointed at this poll, but was not permitted to serve. He then kept the
outside poll-list. John Mcllwain, the returning officer, who was very
actively engaged, in a way not at all to his credit, in the contest in
18^6, attempted to stop the keeping of this list and threatened to have
the witness arrested. The work was temporarily stopped and some
votes missed, and afterwards it was kept on the backs of tickets, appa-
rently to avoid being seen and so prevent arrest. The so-called Re-
publican inspector was a "professional."

To sustain this return one of the clerks of the election was called
and testified that everything was fair. He was sure that the count was
honest, forgetting that he had no means of knowing further than that
he kept a correct tally. He could not know whether the tickets were
correctly read to him or correctly deposited in the box. A disreputable
colored man is also called to prove that he distributed Republican tickets
with Turpin's name on them. His evidence in chief amounts to very
little that is material, and that little is utterly demolished by cross-
examination. None of the inspectors are called as witnesses. There
are between 500 and 600 voters in the beat, all but 35 or 36 being Re-
publicans.

Smiley. No return was counted for Smiley by the county board.
Two of the regularly appointed inspectors and a United States super-
visor were present at the time for opening the polls, but the Democratic
inspector said he had no time to fool with the election and refused to act.
Thereupon, the other inspectors organized an election board as provided
by law. The election was regular in every particular. No Democrats
turned out to vote, but 86 Republicans did. Returns were duly made
and delivered to the sheriff but were not counted. Returns were also

M'DUFFIE vs. TURPIN. 297

made to the chief supervisor (pages 194, 365). That this return should
be counted is substantially conceded.

Pine Flat. Three hundred and twenty nine votes were returned from
Pine Flat, 249 of them for Turpin. There are in the beat about 200
colored voters and 25 white voters. The inspectors were two white
Democrats and one Tom Cleveland (page 428), who says he is neither a
Republican nor a Democrat, but a "straight-out." He can neither read
nor write, and is entirely under the control of one of the Democratic
inspectors. Like satisfactory proof as in other precincts shows that
140 votes were cast for McDuffie. Ben. Brown (pages 195-7). S.
Grumbles (page 377). E. Smith (pnge 773).

To rebut this testimony the contestee calls Tom Cleveland, the colored
inspector, to swear that every thing was right, although he could neither
read nor write and knew nothing about whether the count was correct
or not. The return for this precinct contained many more votes than
there were voters in the beat.

Vernon. One hundred and forty-seven votes are returned from Ver-
non, only 8 being credited to McDuffie. The proof shows that 121
colored Republicans voted for him and that 11 white and 8 colored men
voted for Turpin. The Republican inspector could neither read nor
write, but he was honest. He received the votes and handed them to
a Democratic inspector; says the Republicans did not change their bal-
lots when coming towards the polls. After the polls were closed the
ballot-box was carried to Lawyer John's plantation, where it was
counted. Neither of the white inspectors or clerks is called to sustain
the return after this unlawful act of removing the box.

One J. L. Campbell is called to prove that colored men threw away
their Republican tickets, and took Democratic tickets from him and
voted them. He ventured to name two, and was promptly contra-
dicted by the voters themselves, who swore they did no such thing.
Lawyer John, to whose plantation the box was taken, is also examined,
but not about the count. His evidence was given to show that colored
men voted the Democratic ticket, and that he was active in seeing to
it that the Republican managers did not interfere with the colored men.
We do not think his evidence overturns the evidence given for con-
testant, though to some extent it weakens it. The witness was not
cross-examined, and there is a dispute about notice to take his depo-
sition.

The fact of the illegal removal of the box before counting, of the vio-
lation oi the spirit of the law in the appointment of the Republican in-
spector, and the failure to sustain the return by oral proof, under the
circumstances, leaves the return discredited, and the true vote must be
ascertained by the best attainable evidence. Evidence for contestant
may be found on pages 199, 201, 764-766. For contestee on pages 641-
650.

Dublin. Eighty-seven votes were returned from Dublin, 65 of the
number being credited to Turpin. The evidence, of like character with
that heretofore given, shows that 49 of these votes were cast for Mc-
Duffie. None of the officers of the election were called to sustain the
return, but a witness is called to testify that the Republican managers,
from their position, could not certainly know how the^ votes were cast.
The return is impeached, and we count the vote as proved.

Elm Bluff. One hundred and one votes were returned from this
precinct and 73 of them credited to Turpiu. The same method was
pursued in this precinct as in the others. The Republican managers
attended to putting in their vote, kept a complete list of all who voted

298 M'DUFFIE vs. TURPIN.

the Republican ticket and, in this precinct, of all who voted the Dem-
ocratic ticket. Seventy-six voted Republican and 15 Democratic.
There are only 15 Democrats in the beat. The evidence is clear and
uncontradicted (pages 233, 234, 236).

Brown's. Three hundred and twenty-five votes are returned from
this precinct, of which number Turpin is credited with 235. There are
in the beat about 300 eolored Republicans, and from 12 to 16 white
Bemocrats. For the Forty-eighth Congress the vote was : Republican,
304; Democratic, 10. Here the outside poll-list was kept, as in other
places, and is in evidence, containing 309 names, all who voted of both
parties according to the outside poll. Charles Walker, the United
States supervisor, was present during the whole election, kept the
count when the votes were being counted, and testifies that the result
was: McDuffie 265, and Turpin 16; that the inspectors did not foot up
their tally, but simply signed a sheet of paper with the tally on it, and
delivered the tin box to the returning officer ; that he saw the box the
next day in Selma, at the sheriff's office, and that the seal had been
tampered with.

This is direct and positive testimony of the United States supervisors
as to the actual result of the count and the subsequent tampering with
the box, and that the return, or apology for a return, made out was not
the return afterwards found among the records. None of these officers
are called to rebut this testimony, but an outsider is called to prove the
handwriting of the inspectors .The return was a fraud. (Evidence for
contestant, pages 342, 345, 348; for coutestee, page 584.) Attention is
called to the lengthy objections made for delay during the taking of
this testimony.

Chillatchie. The returns from this precinct were rejected by the re-
turning board for technical reasons, and no vote counted. The returns
were duly proved, and it is admitted that they ought to be counted,
giving McDuffie 144 votes. The refusal to count this return, in direct
disregard of the decision of the supreme court of the State, throws
light on the situation in the district, and the attitude of the county
returning board.

River. Two hundred and ninety-seven votes were returned from River
beat, 283 being credited to Turpiu, and only 14 to McDuffie. The evi-
dence shows that there are about 300 colored voters in the beat, and
25 or 26 whites, and that all of the colored men are Republicans except
two or three. The proof shows that 200 voted the Republican ticket
and for McDuffie. There is no attempt to rebut this evidence.

GarlowmUe. Here the election was duly and lawfully held, but the
county board refused to count the returns, as in Chillatchie. It is con-
ceded that the return ought to be counted. This adds 101 to McDuffie's
vote.

Woodlawn. According to the returns, 176 votes were cast at Wood-
lawn, Turpin being credited with 159, and McDuffie with 17. The un-
controverted evidence shows that 136 votes were cast for .McDuffie, and
that there are only about 40 Democratic voters in the precinct.

Marion Junction and Old Town. The frauds perpetrated in these two
precincts are, in like manner, fully, proved, and we count them accord-
ing to the evidence, as limited by the notice of contest. At Old Town
the return was one of the boldest frauds in the whole list.

BoyJcins. The returns from this precinct were not counted by the
county board. They showed for the Republican electors 110, and for
the Democratic electors 17, but for Turpiu 117, and for McDuffie 10.

M'DUFFIE vs. TURPIN. 299

This was evidently effected by taking the 1 from the 110 and placing
it before the 17. The vote was evidently cast as counted by the com-
mittee.

This closes the review of the various precincts where the committee
have rejected the returns and counted the vote proved.

It will be seen that the evidence throughout the district is of a simi-
lar character, the result of intelligent organization to prevent fraud
and to prove the actual vote by other means than the returns. It shows
the existence of a universal belief that the returns could not be relied
upon, and that that belief was justifiable.

The evidence is a direct attack upon the integrity of the officers hold-
ing the election, so far as these officials were white Democrats, upon
matters connected with the exercise of the right of suffrage by colored
men. If these officers would falsify the returns, it follows that no re-
liance could be placed in the contents of the ballot-boxes left in their
hands after 'the election. The law of the case is clear, provided the
evidence is satisfactory and of a character relied upon by judicial tri-
bunals.

The violation of the letter and spirit of the law in the appoint-
ment of the election officers, so universal as to show deliberate intent,
the universal knowledge of the purpose of such violation, and all the
various acts of the partisans of contestee, including all the officials
throughout the district, are what give weight and character to the evi-
dence which shows the results in individual precincts, or beats, as they
are called in Alabama.

The admissibility of this kind of testimony has been fully recognized
by the courts, and its weight in this class of cases admitted.

Judge Howell E. Jackson, late a United States Senator and now a
judge of eminence, in his charge to the jury in the recent trial of Tennes-
see election officers for violating the Federal election laws at Memphis,
Tenn., used the following language :

Said witnesses testified that the voting population of the fourth civil district of
Fayette County on November 6, 1888, numbered between 490 and 500 say about 500.
That about 80 to 100 of such voters were white men or Democrats ; the remainder,
numbering about 400, were colored men and Republicans. That on the day of the
election there was a large turn out of such voters. That the colored voters present
exceeded 300 in number. John McGovvan, the Republican chairman of the district,
states that there were over SCO colored Republican voters present. That he directed
many or most of them to go for their tickets to John C. Reeves, who occupied a posi-
tion 10 or 20 steps from the voting place, and was distributing Republican tickets to
Republican voters. That Ree\es's position was in full view of the window at which
the ballots were handed in to the officer. That he saw many of the tickets de-
posited or handed in to the officer holding the election, and can not swear to the
actual number that voted that had Republican tickets. John C. Reeves testified
before yon that he was present. That he had in his possession Republican tickets, a
sample of which is produced in evidence, having en it a full list of Republican candi-
dates, from Presidential electors and Congressmen down to State and county officers.
That he issued to the colored voters on that day, upon their application for the same,
325 of those tickets while at the voting place. That on his way home he met four or
five other voters going to the polls, to whom he gave Republican tickets ; the names
of two of those voters he finds upon the poll-list at Nos. 407 and 409. Reeves further
states that he saw over one hundred of those to whom he gave tickets go directly
from him to the window where the votes were received and hand them in to the
officer holding the election. He could not swear that they actually deposited the
identical tickets received from him, but he saw no change of ticket or change of
purpose on the part of the voter after procuring from himself the Republican ticket.
He recognizes on the poll-list the names of about one hundred of such Republican
voters. Now, gentlemen of the jury, Reeves and McGowan are in no way impeached,
nor are their statements in any wise contradicted. They stand before you as in every
way credible witnesses, and their testimony is entitled to full faith and credit. If
the case for the prosecution stopped with Reeves and McGowan, it would present

300 M'DUFFIE vs. TURPIN.

a case of circumstantial evidence as to the vote actually cast having exceeded that
which was Counted and returned by the election officers and judges. When circum-
stantial evidence is relied on to convict, as counsel for defense has suggested, it
should be of such conclusive character as to exclude any remote hypothesis of inno-
ceuce.

It is to be remembered that the last remark has reference to the
proof required to convict m a criminal case.

Speaking in regard to individual voters who had testified to their
votes, he said :

If the prosecution had simply shown that each one of these witnesses was seen
going to the poll with a Republican ticket in his hand which he had received from
Reeves, with a declaration of his intention to vote said ticket, such facts and acts
would have constituted circumstantial evidence that they voted said ticket. '

It is to be remembered that the evidence in this case is more direct
and more certain than was the evidence upon which Judge Jackson's
charge was based, and that the witnesses and voters take much greater
pains to be able to know the exact facts.

Remembering who Judge Jackson is and what his party affiliations
are, and that the men on trial were citizens of his own State and mem-
bers of the political party to which he belongs, this charge will cer-
tainly be accepted as of the very highest authority.

Tbat any one should doubt the admissibility of this kind of evidence
and its sufficiency, under the circumstances surrounding this case, is
somewhat surprising, and yet it was gravely argued before the commit-
tee that the evidence was not only insufficient but altogether incompe-
tent.

The enormous frauds shown by this record, by which an honest ma-
jority of nearly 5,000 (and there are strong grounds for suspecting it to
be much larger still) was turned into a minority of more than 13,000,
have necessarily made this report somewhat lengthy.

The committee recommend the adoption of the following resolu-
tions :

Resolved, That Louis W. Turpin was not elected a Kepresentative in
the Fifty-first Congress from the Fourth Congressional district of Ala-
bama, and is not entitled to the seat as such Representative.

Resolved, That John V. McDuffie was duly elected a Eepresentative
in the Fifty-first Congress from the Fourth Congressional district of
Alabama, and is entitled to his seat as such Eepresentative.

VIEWS OF THE MINORITY.

(1) Evidence.

Each party should be required to produce the highest and best evi-
dence attainable.

(2) Evidence. Evidence in chief taken in time of rebuttal should not
be considered.

Granting to the contestant all that he can reasonably claim (see
syllabus, p. 255), there still remains for contestee a majority of over
9,000.

301

VIEWS OF THE MINORITY.

MAY 26, 1890. Mr. CRISP, from the Committee on Elections, submit*
ted the following as the views of the minority :

The undersigned not agreeing with the majority of the Committee on
Elections in their finding in the above-stated case, herein express their
dissent anri the reasons therefor.

The majority report correctly sets out the official returns of the votes
cast in the Fourth district of Alabama at the election held November
6, 1888.

To so much of the report as is devoted to what the committee denom-
inate the " recent political history of the district " the undersigned do
not deem it necessary, nor indeed proper, to reply. Under the Constitu-
tion of the fJnited States this House must determine the " election,
qualification, and return of its members." We believe such " determina-
tion" should, be arrived at in accordance with the legal evidence con-
tained in the record and the well-established principles of law.

The general rule is that the ordinary rules of evidence apply as well to election
contests as to other cases. The evidence must, therefore, he confined to the point in
issue, and must be relevant. The burden of proof is always upon the contestant or
the party attacking the official returns or certificate. The presumption is that the
officers of the law charged with the duty of ascertaining and declaring the result
have discharged that duty faithfully. (McCrary on Elections, sec. 308.)

The law applicable to this case is plain and well established and is
hero referred to.

Section 252, Code of Alabama, authorizes the courts of county com-
missioners in their respective counties to establish election precincts.

Section 258 requires the probate judge, sheriff, and clerk of each
county to provide one ballot-box, and, if they deem necessary, not ex-
ceeding three, for each voting place.

Section 259 requires the same officers to appoint for each voting
place three inspectors, two of whom shall be members of opposing po-
litical parties, if practicable, and one returning officer.

Section 260, the sheriff is the returning officer of the county.

Section 262, the polls must be opened before 9 o'clock on the morn-
ing of the election.

Section 264, two clerks are to be appointed by the inspectors.

Section 265, before opening the polls the inspectors and clerks must
take an oath to perform their duties at such election according to law.

The return must stand until such facts are proven as to clearly show that it is*not
true. (McCreary on Elections, 438 and authorities there cited.)

The object of this investigation should be to ascertain the truth. In
all such investigations each party should be required to produce the
highest and and best evidence attainable. This rule of evidence will

303

304 M'DUFFIE vs. TURPIN.

not be disputed. In the light of this rule we will proceed at once to
an examination of the facts contained in the record.

LOWNDES COUNTY.

In this county the report of the majority of the committee attacks
the appointment of the precinct inspectors.

We propose to give the conclusions of the majority in the language of
the report, and then follow with the testimony upon which they base
their judgment.

We quote from page 8 of the report :

In Lowndes County the precinct inspectors were appointed ou the 25th day of
September. A few days afterwards the contestee visited the county, and on the Gth
day of Octoher an entire change was made in the list of inspectors appointed to repre-
sent the Republicans. The first list was satisfactory, and made up in the greater part
of intelligent men. The second list was made without any authority in the law, and
its composition shows that the change was made for a dishonest purpose. Judge
Coffey (Record, page 745) says that the reason for this change was that the sheriff and
several other gentlemen told him that the Republican inspectors being school-teachers
did not wish to serve and mix up in politics. Hence the change.

We quote now from the deposition of Judge A. E. Coffey (Eecord,
page 745):

Q. At what time or about what time did you make said appointment of said in-
spectors ? A. About the 25f h or 26th of September, 1888.

Q. If there was any other appointment made of the inspectors by your board, or
any change made in said appointments, state about when that was done, to the best
of your recollection. A. The board of supervisors met again about ten days after the
appointment of the inspectors and revised the list, making a number of changes.

Q. At whose instance or request was this second meeting of the board, and at
whose instance or for what reason were those changes made ? Please state fully and
particularly. A. The sheriff and one of the Republican inspectors and other gentlemen,
ivhose names I can not remember now, informed me that a number of the Republican in-
spectors who had been appointed declined to serve as such inspectors, on the grounds that they
were school-teachers and did not want to mix up in politics; and the board of supervisors
was called together to remedy this defect in the list of inspectors.

Q. Was there no other reason or excuse made by those persons who communicated
those facts to you why those changes should be made f If so, what reason or excuse
was given by them ? Please state fully. A. No other motive prompted me to make the
changes except as above stated.

Q. State whether or not Mr. L. W. Turpin was here just before or during the time
of this session of the board at which the changes were made of the inspectors.
Please state when it was relative to the meeting of the board, and how long he remained
here. State fully.

(Contestee objects to this question on the grounds that it is illegal and irrelevant.)

A. Mr. Turpin was here on the 28th and 29th of September, 1888, which was two
or three days after the appointment of inspectors, and seven or eight days before the
list of inspectors was revised and changed.

Q. Did you have any knowledge of the fact that Mr. Tnqnn made complaint to
any of the board as to the inspectors that had been appointed at your first meeting
and that he requested or solicited any member of the board to make any changes of
the appointment of inspectors ? If he did, please state all you know on the subject.

A. Mr. Turpin stated to me on his arrival here, on the 28th or 29th of September,
1888, that he was perfectly satisfied with the list of inspectors that had been appointed and
that he desired that there should be a school-teacher or other intelligent Republican repre-
sentative on the board of inspectors in every beat in the district and he did not solicit any
changes through me or to my knowledge.

This witness was introduced by the contestant himself, and his cred-
ibility thereby vouched for by the contestant. Does his testimony
warrant the conclusion of the majority that the change was made at
the instance of the contestee and " for a dishonest purpose ?" We
think not. He testifies directly that the change was made for the
sole reason that he was informed that those appointed declined to serve,
and that the contestee had nothing whatever to do with his action, but
on the contrary expressed himself as perfectly satisfied with the first

M'DUFFIE vs. TURPIN. 305

appointees, and expressed a desire that they would serve. The majority
of the committee must have misread the testimony of Judge Coifey
to arrive at the position set forth in their report, or else they discredit
his testimony, though he holds the high and honorable position of judge
of probate of Lowndes County and his truthfulness is avouched by the
contestant himself.

The report further declares, infereutially at least, that while the first
appointments were satisfactory to the contestant the second* appoint-
ments were not, when in answer to the following question on cross-ex-
amination :

Did not J. V. McDuffie express himself as being well satisfied with the persons ap-
pointed to hold the Congressional election in 1888 f

Judge Coffey replied, " He did," and in the lengthy deposition of the
contestant we fail to find any denial of this expression of satisfaction
upon his part with the second appointments. We must infer, there-
fore, that he was satisfied before the election with the character of the
second appointees, and believed them to be competent and honest men.

The majority of the committee insist that the Republican inspectors
last appointed were ignorant men, while those first named were intelli-
gent. Let us see what the contestant's witness, Judge Coffey, says on
this point in answer to a question propounded by the contestant's coun-
sel (Record, page 746) :

Q. How did those inspectors of the Republican party who were appointed at the
first meeting of the board and were taken off and rejected by the board at the last
meeting compare with tbose who were appointed in their place to act as inspectors
in point of education, intelligence, and qualifications to act as such inspectors? Please
state fully, so far as you know. A. 1 do not think that there was any gieat differ-
ence in the intelligence and qualifications of the original Republican inspectors and
those who were appointed to fill their places, except in Hayneville bent, that I am
acquainted with.

There is not a particle of testimony to affect in the remotest degree
the bona fides of Judge Coffee or to throw the slightest suspicion upon
his action. In fact, learning as he did that the Republicans originally
appointed declined to serve, it was his duty, in the interest of a fair
election and in compliance with the law, to make such changes as would
insure Republican representation at the ballot-boxes, and if he had not
acted upon the information and thereby the Republicans were deprived
of an inspector at the respective precincts, the contestant might have
complained that his failure to act was caused by a "dishonest purpose"
upon his part.

But without dwelling longer upon this point let us examine the testi-
mony as to each precinct in this county.

Following the order of the majority report we will first consider
Oordonsville precinct. As to this precint there is no testimony what-
rer even tending to impeach the fairness of the election and the cor-
3tness of the returns except that which was taken in the time for re-
ittal ; then the contestant introduced witnesses and examined them
chief.

It is unnecessary to call attention to the statute governing contested-
lection cases. Under it and in accordance with the findings of the pres-
it Committee on Elections in the case of Posey vs. Parrett, all this
ridence must be excluded, leaving the precinct unassailed. It cer-
dnly would be gross injustice to admit the depositions of these wit-
nesses when the contestee had no opportunity to meet and contradict
their testimony.

But while adhering to this position, and believing the House will not
H. Mis. 137 20

306 M'DUFFIE vs. TURPIN.

ignore the law and depart from the long line of precedents furnished by
the record of contested-election cases in former Congresses, and by the
very recent case of Posey vs. Parrettin this Bouse, we insist that there
is nothing in the testimony of any of the witnesses which is material,
except the statement ot the Republican Federal supervisor that at one
time during the day the ballot box was removed from the polling-room
into an adjoining room by one of the Democratic inspectors. This fact
was introduced to cast suspicion upon the purpose for which the box
was placed in the room; but this is all dispelled by the testimony not
only of one of the Democratic inspectors, but by the Republican in-
spector as well, and the purpose fully and satisfactorily explained.

The Democratic inspectors went to dinner together, and before leaving
one of them took the box, without objection upon the part ol the Repub-
lican inspector or Republican Federal supervisor, and set it just inside
the door of an adjoining unoccupied room, without even entering the
room, leaving the Republican inspector and Republican supervisor to
keep guard, and the Republican inspector swears no one entered that
room while the box was in it. (Record, 51, 5'J2.)

The majority in their report say on page 18:

The material evidence in regard to this precmct is found oil pages 728, 733,735, and
744 of the record.

That is, they consider only as " material" the evidence taken by
the contestant, and that, too, taken in the last ten days, with no op-
portunity to thecontestee to refute it, and utterly ignore as at all u ma-
terial" the direct evidence of one of the Democratic inspectors and the
Republican inspector, witnesses on behalf of the contestee.

Sandg Ridge precinct. The facts in regard to this precinct can be
briefly stated.

The law of Alabama requires the polls to be opened before 9 o'clock
in the morning. If all of the inspectors are not present, vacancies shall
be tilled by those present from the qualified voters in attendance. When
the time for opening the polls on the morning of the election in contro-
versy arrived, only one of the inspectors was present and he appointed
two other inspectors who were qualified voters, one a Republican and
the other of unknown politics, and the three proceeded to conduct the
election.

Sometime after this poll was opened a colored man associated two
other colored men with him, and without a shadow of authority opened
another polling place and received votes.

There is no attack made on the manner of conducting the regular
poll or the correctness of the returns of the election officers, but on the
contrary the witnesses introduced by the contestee prove that the elec-
tion was fair and that the returns were honest.

The majority count the votes cast at this outside, irregular, and un-
authorized poll. They question and discard returns from regular poll-
ing places because the officers were all Democrats, but in this instance
they count the returns from an irregular and unauthorized polling place
made by men, all of whom were Republicans, unsworn, ignorant, and
unlettered.

Lowndesborough precinct. This precinct is attacked by one witness,
G. T. McCall, who was a Republican ticket holder, and here is a sum-
mary of the material points in his testimony (Record, 747) :

Q. You say that you were engaged in issuing tickets there at that election that
day ; state about how many you issued. A. Myself and some four or five others
issued, I suppose, about 350 or 360 tickets.

(Contestee moves to strike this answer from the file on the ground that it is a mere
supposition of the witness.)

M'DUFFIE vs. TURPIN. 307

Q. Were you about or near the polls during the time of voting ? State whether
or not these tickets and others you were issuing was voted or handed in to the
inspector. A. I was near the polls all day. Right on the grounds. I seen a great
part of them handed in ; I didn't see them all.

' Cross-examination (Record, 748) :

Q. You stated in your direct examination that you and several others issued about
350 or 360 Republican tickets on the day of the election ; how many of these did you
issue yourself? A. I suppose I issued one-third of them.

Q. Do you know as a fact how many yon actually issued ? I do not ask for your
supposition, but for what you actually know ? A. At one time I issued one-third of
a hundred and fifty, and at another time I issued some more, and don't know as a fact
how many I issued.

Q. How many of the voters to whom you gave Republican tickets actually voted
the ticket you gave them, if you know how many ? A. I give tickets to about eeventy-
tive or one hundred, probably more, and I would say definitely that all of them voted
them.

Upon this testimony the majority proceed to set aside the returns
which gave Tur(>in 320, McDuffie 41, and reversing the figures give
Turpin 41 and McDuffie 320, and while such action is startling when
considered in the light of the testimony of the one solitary witness
whose statements we have quoted, yet when we look at the evidence
on behalf of the contestee, which we will now give, it is no less than
astounding. (Record, 536. W. H. Mcrrett.)

Q. What is your name, your age, and where do you reside, and how Ions; have you
resided? A. William H. Merrett is my name; my age is thirty-four years; I re-
side in Lownuesboro beat, No. 18, Lowndes County, Ala. ; have resided there ten
years.

Q. Did you attend au election held for your beat at Lowndesboro on the 6th day
of November, 1888, to elect a Congressman to represent this district in the Fifty-
first Congress ; and, if so, in what capacity did you attend? A. I did attend said
election, and in the capacity of register.

Q. On the morning of said election did you, or any one else in your hearing, try to
induce G. T. McCall to go into the room where the election was to be held and person-
ally supervise said election as United States supervisor ? If so, state all was said.
A. I, in company with one of the inspectors, A. Douglass, saw G. T. McCall on the
grounds and each of us made personal endeavors to induce him to go in and act in
the capacity of United States supervisor, ho being appointed in said capacity, I tell-
ing him at the time I wanted to see a fair election and a fair count, aud wanted it
said that Lowudesboro beat sent off her vote as cast by the voters, and that he well
knew that Lowndesboro beat was largely Democratic, and that it was important to
the Democratic party for him to act. Mr. Douglass, one of the inspectors, said to
him in my presence, did all he could to get the said McCall to act as United States
supervisor. McCall positively refused to have anything to do in the capacity he was
appointed for. We made strenuous efforts on several other Republicans to get them
to act, and was not able to get any other Republican than the one that served.

Q. Were you present during the entire day at the voting place ? A. Most of the
time during voting hours I was within ten feet of where the vote was handed in to
the inspectors.

Q. Do you know whether or not a large number of colored voters voted the Demo-
cratic ticket there that day ? A. I personally gave them Democratic tickets, and,
being in close proximity to where they passed them to the inspectors, know a large
number voted the Democratic ticket.

Q. Was J. V. McDuffie a popular or unpopular candidate for Congress among the
colored voters of your beat at said election? A. By leaders, who controlled the
masses of the Republican party, I consider McDuffie unpopular and not their choice
for Congress. I have heard the leaders of said party say as much, and that he was
too close-fisted and they were tired of working for him for nothing.

Q. Was L. W. Turpin a popular or unpopular candidate for Congress among the
Democrats of your beat? A. Very popular.

Q. Do you know the general character of A. Douglass and S. A. Tyson in the com-
munity in which they live, and how long have you known them, and did they act as
inspectors at said election ?

(Contestant objects to this question on the ground that there is no predicate been
laid to authorizing into examining of the characters of these gentlemen; that their
character is not in issue in this contest ; that they are not witnesses for either party,

308 M'DUFFIE vs. TURPIN.

and are not parties to the contest, and that their character for truth and veracity, or
any other respect, has been attacked or put in issue.)

A. I do know the character of the above gentlemen mentioned, and have known
them ten years, and they did act as inspectors to said election.

Q. What is the general character of said Douglass and Tyson, and to what class of
citizens do they belong ? A. Their character is good, and equal to the best in our
community, and are ol" the first and best families in the beat.

Q. Do you know the character of G. T. McCall in the community in which he lives ;
if you do, is that character good or bad for truth and veracity ? A. I do know
his character; aud while he is a smart and shrewd man in rascality, I consider his
moral character bad, and where ho is interested in the least I would not believe him
on his oath.

Q. Did you see anything there that day that indicated anything other than a free
ballot and a fair count ? A. I did not.

Q. Judging from the votes cast at your precinct for several elections past, either
State or Federal, is your beat Democratic or Republican ? A. Democratic, by a large
majority.

Cross-examination by W. C. GRIFFEN", attorney for contesant :

Q. You say according to the votes cast there for the last several years past, you say
that your beac is largely Democratic ; can you say of your own knowledge that a ma-
jority of the votes cast at those elections were Democratic ? A. I can say there were
Democratic, having repeatedly acted as inspector both in State and Federal elections.

Q. You say that you and Mr. Archie Douglass used your influence with G. T. Mc-
Call on the day of the election on the 6th of November last, to act as United States
supervisor at that election ; do you know of your own knowledge that said McCall
had been appointed or had any legal authority to act as United States supervisor of
said election? A. I saw his commission the day previous to the election.

Q. Who acted as inspectors at that election and who as clerks, and give the race
and politics of each of them? A. A. Douglass, S. A. Tyson, and Ben Gary, inspect-
ors; first two Democratic, last one Republican. I don't know who acted as clerks.

Q. Can Ben Gary read and write ? A. I don't know. .

(Kecord 538. Hon. A. E. Coffee:)

Q. What is your name, your age, and where do you reside, and how long have you
resided in this county? A. My name is A. E. Coffee; judge of probate court of
Lowndes County ; I am forty years old ; I reside in Lowndes County, Ala. ; I have
resided in the county about twenty-five years.

Q. Please tell what you know about the election that was held on tho Gth day of
November, 1888, at Lowndesboro precinct, held for tho purpose of electing a Congress-
man to represent this district in the Fifty-first Congress, and Presidential election ?
A. I voted at Lowndesboro precinct on the 6th day of November, 1888, and was about
or near the polls from 12 o'clock, noon, until 5 o'clock p. m. I saw a great many
colored voters cast their ballots for L. W. Turpin, including the leading and most
intelligent colored men of the beat. The colored men of Lowndesboro beat have
affiliated with the Democratic party ever since 1882. I knew the colored men voted
the Democratic ticket, because they showed me their tickets, and I saw them deposited
in the ballot-box.

Q. Have you not an extensive acquaintance and knowledge of the colored voters of
this county as regards to their preference for voting ? If so, state whether or not they
vote solidly for one party. A. I have considerable knowledge of the political predi-
lection of the colored men of Lowndes County ; they have never been solidly Repub-
lican since 1882; they have been divided on all opposing candidates in the county
since 1882; in 1886 they voted almost solidly for the regular De^i ocratic nominees
against their opponents

Q. It seems there were two boxes from each of the following beats, to wit: Farmer-
ville, Sandy Ridge, Hayneville, Letohatchee, and St. Clair. Upon what grounds did
the board of supervisors refuse to open and count the box from each of thes beats
sent up by the Republican inspectors alone? A. On the grounds that the returns of
an election held by the regularly appointed inspectors were before the county board
of supervisors, and under the law they counted the returns of the regularly qualified
inspectors and refused to count any other.

Q. Do you know the general character and standing of the Democratic inspectors
that held said election in each beat in this county ? If so, state what it is. A. I do ;
almost without exception they are of the best men in the county in point of integ-
rity, and all those qualities that go to make a good citizen.

Q. Do you know anything further that would be of benefit to the contestee in this
contest? A. I know that since 1882 the colored people of the county have manifested
very little interest in the Republican aspirants for office, as evidenced by their vot-

M'DUFFIE vs. TUEPIN.

ing the Democratic ticket openly, and the small tarn-oat compared to the old days
when the carpet-bagger was lord of the land, and before the colored man had found
oat his selfishness and deceit.

(Record 539. Dr. Shirley Bragg :)

Q. What is your name, your age, where do you reside, and how long have you re-
sided there? A. My name is Shirley Bragg ; my age is thirty-five years ; I reside in
Lowudesboro ; I have resided in the county nearly all of my life.

Q. What office do you hold in this county ? A. Health officer and inspector of con-
victs.

Q. State all you know in regard to the election held at Lowndeshoro precinct on the
6th day of November, 1888, for the purpose of electing a Congressman to represent this
district in the Fifty first Congress of the United States. A. I was present and was on
the ground the whole day. We had a fair turn-out there, but have seen larger crowds
at the polls. I saw some of colored voters vote for McDuffie and saw some of them
vote for the regular Democratic ticket. My impression is that Scott Smith worked
for the Democratic ticket and voted the Democratic ticket; he is a colored man.

Q. About what portion of the colored voters did you see vote for McDuffie, and
about what portion did you see vote for L. W. Turpin ? A. I saw about as many
vote tor L. W. Turpin as voted for McDuffie.^s the best of my belief.

Q. Did the colored people of your beat take much interest in said election or not ?
A. Seemed to be very little interest in the election and there was no enthusiasm at
a 1 !.

Q. Was J. V. McDuffie a popular or unpopular candidate among the colored voters
' f your beat at said election f A. I don't think the rank and file of the colored peo-
ple cared much for either one of them.

Cross-examination by W. C. GRIFFEN, attorney for contestant :
Q. You say in your direct examination that you saw some of the colored voters vote
for McDuffie and that yon saw some vote the regular Democratic ticket ; please state
how many you know voted the regular Democratic ticket, and give their names who
so voted. A. I can't say how many, but know that some of them voted for Turpin
by there being a red ticket on the ground and knew who was on the red ticket ; it
was the Democratic ticket sent to me the night before the election by the chairman
of the district committee, and would have been all over the county, but was received
too late for distribution.

Q. What proportion of the time that the polls were open there that day at that
election were yon present at the polls? A. I was there from the time they opened
until they closed, with the exception of about a half an hour, when I went to dinner.
Q. You say in your direct examination that there was a fair turn-out there that
day, but that the voters seemed to take very little interest in the election ; you know
whether or not they all voted ? A. I do not know, but know there was lest enthu-
siasm there at that election than I ever saw in Lowndes County.

These witnesses men of high character testify that many colored
men voted the Democratic ticket ; that the officers who conducted the
election were men of the strictest integrity ; that McCall, the contest-
ant's witness, refused to serve as supervisor though appointed for that
purpose, and that he is a smart and shrewd rascal and not worthy of be-
lief on oath.

Steep Creek precinct. We find that the majority of the committee
rely upon the oft- told story that a certain number of Republican tickets
were issued, therefore a corresponding number of votes were cast for
McDuffie and must be counted for him.

One of the witnesses upon whose testimony the contestant mainly
relies was so drunk that before the cross-examination was concluded it
was found necessary to suspend until the next day so that he might
sober up. (Record 697.)

The testimony of this witness is specially mentioned and approved
by the report of the majority.

It is shown by the contestant's witness, W. N. Wimo, that the Demo-
cratic officers at this precinct were men u whose characters are as good
as any in the State ot Alabama j that they are among the best citizens."
(Record 672.)

310 M'DUFFIE vs. TURPIN.

Eeturn vote: Turpin 146, McDuffie, 62.

Counted by majority of committee: Turpin 37, McDuffie 171.

Church Hill precinct. The election at this precinct was conducted by
two Democrats and one Republican. Again comes the usual cry that
a given number of Eepublican tickets were distributed and they were
necessarily cast, and one witness is relied upon to prove this predicate
of the report of the majority.

On behalf of the contestee the testimony of two witnesses was taken
and we here quote it. (Record, 501-503, H. B. Lever.)

Q. What is your name, age, and in what precinct, county, and district do you
reside ? A. H. B. Lever ; forty-eight years of age, and iive in Church Hill beat, in
Lowndes County, fourth district of Alabama.

Q. Was there an election held in said county in said precinct on the 6th day of
November, 1888, for the purpose of electing a member of the Fifty-first Congress of
the United States of America from the Fourth Congressional district of Alabama ; and,
if so, who was the Republican candidate, and who was the Democrat for said office ?
Were you an officer of said election ^ and, if yea, state whether you were an in-
spector or not, and give the names of the other inspectors. A. There was an election
held in said precinct on said day for said office; J. V. McDuffie was the Republican
candidate, and L. W. Turpin was the Democratic ; I was au officer in said election ;
Joe R. Dudly and Captain Black were inspectors.

Q. Were all the inspectors in said election Democrats, and warm friends and ardent
supporters of L. W. Turpin? A. No. Two were Democrats and one was a Repub-
lican.

Q. Were the Democratic inspectors in said election partisans of L. W. Turpin in
any other sense than that of being members of the same political party? Did you
and the other Democratic inspectors, acting in concert with the white voters of said
precinct, enter into and form a conspiracy with Democratic inspectors and voters
throughout the Fourth Congressional district for the purpose of electing L. W. Turpin
regardless of how the votes were cast? How did the Republican inspector of said
election compare with point of intelligence and honesty with other Republicans of
eaid precinct? A. No; they were not partisans of L. W. Tnrpin, except that they
belong to the same party. No; they did not enter into or know of any conspiracy.
The Republican inspector compares favorably with the other Republicans of said beat.

Q. Who received the ballot from the electors, and who deposited iu the ballot-box ?
Was the ballot so deposited iu the ballot-box the identical ballot so handed in by
the electors ? Could such ballot have been changed either by the inspector receiving
it or by the one depositing it without your knowledge ? Was it so changed ? A.
J. R. Dudly received the ballots and handed it in to Captain Black, who put them in
the ballot-box. Mr. Dudly or Captain Black could not have changed the ballot with-
out my knowing it. They were not changed, and were the identical ballots cast by
the electors.

Q. Was the box in which the ballots were deposited kept locked during the day ;
and if so, who had the key; did not the Republican inspector before any votes was
deposited iu the box carefully examine and lock it ; was any box filled with tickets
during the time the polls were open or after the close thereof substituted for the regu-
lar ballot-box? A. The box was keptlockeil, and Captain Black, the Republican in-
spector, had the key. He examined the box ; locked it ; put the key in his pocket
until he opened the box to count. There was no box only the regular one.

Q. Were there any ballots other than those voted by the electors of said precinct
put into the ballot-box ? A. There was none.

Q. Was the ballot-box from which the inspectors took the ballots for the purpose
of counting them the identical box in which ballots voted. by the electors had been
deposited by the inspectors? A. It was the identical box.

Q. Were the ballots counted by the inspectors the identical ballots that were cast
by the electors ? A. They were. .

Q. Did the inspectors in making such count read tickets having on them the name
of John V. McDuffie as if they were the name L. W. Tnrpin ? A. No, they did not.

Q. Was the count made by the inspectors a fair, just, and honest one ? A. It was
a fair count, just and honest one.

Q. Was the returns made out by the inspectors and forwarded to the sheriff correct
and accurate ? A. It was correct.

Q. Is this a true copy of the returns made out by the inspectors, and does it contain
a correct statement of the vote of t>aid precinct ?

(The paper is now handed the witness, and the contestee asks that it he attached
to his testimony, which is accordingly done and marked Exhibit B.I

A. It is a true and honest copy.

M'DUFFIE vs. TURPIN. 311

Here follows a copy of the returns, giving Turpin 117 votes and
McDuffle 63 votes.

Q. How many ballots were cast at said election for John V. McDuffle and how many
for L. W. Turpiii ? A. McDuffie received 63 votes and L. W. Turpiu 117.

Q. Could the ballot-box or ballots in it have been changed from the time of the
opening of the polls to the close thereof without your kuowledge ? A. It could iiot
have been changed without my knowledge.

Q. Were they or either of them changed between the opening of the polls and the
count by the inspectors ? A. They were not changed.

(Eecord, 505. George Ernest:)

Q. What is your name, age, and what precinct, county, and Congressional district
do you reside ?' A. George W. Ernest ; twenty-six years of age ; Church Hill pre-
cinct ; Lowndes County ; fourth district of Alabama.

Q. Did you so reside ou the 6th day of November, 1888? If so, was ther.e an elec-
tion hold in said beat for a member of Congress from the fourth Congressional district
of Alabama to the Fifty-first Congress of the United States of America? A. I did
reside on the 6th day of November, 1868, when said election was held for said office
on said day.

Q. What official connection, if any, did you have with said election ? A. I was
appointed and acted as deputy sheriff.

Q. Were you in the room while the canvass of the polls was being made by the in-
spectors ? A. I was in the room at the time.

Q. Did you see the inspectors making the count ; and did yon read the names on
the tickets? And. if so, do you know of any ballots that had the name of John V.
McDuffie on them being read and counted as if they bore the name of L. W. Turpin?
A. I saw the counting of the inspectors ; I read the tickets, and do not know of any
that contain the name of J. V. McDuffie being read and counted for L. W. Turpin.

Q. Do you know Mr. H. B. Lever and Joseph R. Dudley; and if so, how long have
you known them? A. I know both; have known them for the last fifteen years.

Q. Do you know their general character for truth and honesty in community in
which they reside, and among the people with whom they associate? A. I do.

Q. Is not their general character very good ? A. It is.

Q. Do they not belong to, associate, and mingle with the best classes of Lowndes
County? A. They do.

Q. Was there not a good deal of discontent among the Republicans of Lowudes
County on account of the nomination of J. V. McDuffie? A. There was a good deal
among the negroes.

Q. Did he receive the cordial and united support of the rank and file of his party ?
A. He did not.

<^. Did not this contest arise from the fact that McDuffie supported in 1886, in the
county election, what is known as the regular Democracy, instead of that wing of
the Democratic party commonly called in Lowndes County Mugwumps? A. It did.

If this is the testimony of witnesses who are credible, upon what
ground can it be held that the returned vote of 117 for Turpin and 63
for McDuffie should be set aside and 13 given to Turpin and 166 to Mc-
Duffie f

Haynesville precinct. At this precinct an election was regularly held
at the court-house, the usual place for holding elections. It was con-
ducted by two of the regularly appointed inspectors and by a third
selected, in accordance with the law, to supply the place of the third
appointee, who did not attend ; two were Democrats and one was a
Eepublican.

The poll was opened before 9 o'clock, as required by the statute.

A colored Republican, who claimed to be an inspector by reason of
an appointment \vhich had been revoked more than thirty days before
the election, uoou his own motion associated with him two other col-
ored Republicans and opened another poll some distance from the
c6urt-house, and received the ballots of all those who presented them-
selves.

The only attack made on the returns from the regular polling pi ice
is that made by the leader in the outside movement ( W. E. Carson),
who says that the colored Republican inspector (Tony Smith) at the

312 M'DUFFIE vs. TURPIN.

regular polling place was a man " whose character for sobriety was
bad, and that he was nearly all the time drunk ;" to this Smith replies
that Carson " is a tramp and beats people out of everything he can."

At the regular precinct the Democrats voted but the Republicans de-
clined ; the returns were 158 for Turpin and none for McDuffie ; but
the majority of the committee held that Turpin only received 54 votes,
while McDuffie received 272 votes. They count every vote which was
cast for McDuffie at this outside place, and give Turpin only 54 votes
of the 158 which he received at the regular polling place.

The Democratic inspectors were men whose characters are shown to
have been above reproach.

In order that it may be fully understood why outside polls were
opened, and further to show the bulldozing tactics of the contestants,
we here give a part of the testimony of W. E. Haynes :

Q. State what W. E. Carson said to you, if anything, about being bulldozed and
forced to sign the returns of the pretended election held at Hayneville on the 6th day
of November, 1888.

(Contestant objects to this question ou the grounds that it is illegal and irrelevant,
and on the further grounds that this witness, as William E. Carson, are parties to
this contest ; that it is hearsay testimony, and that there is no predicate laid to bring
this testimony in this contest for any purpose.)

A. He told me the next day after the election that J. V. McDuffie advised separate
boxes run in certain beats and that J. V. McDuffie and his gang bulldozed and forced
the colored inspectors of these beats to hold separate elections; he said he refused to
sign the returns of his box until the day after the election, aud did so under threats
of McDuffie's gang.

St. Clair precinct. The evidence as to this precinct shows that the
election was regularly held by the duly appointed inspectors, but other
parties entirely unauthorized opened polls at another place and pro-
ceeded without any registration book to go through the farce of receiv-
ing the ballot of every man who offered to vote, and according to the
.statement of one of these parties 214 ballots were cast for McDuffie and
none for Turpin, and under this state of facts the majority of the com-
mittee count 214 votes for McDuffie.

We refer here to the testimony of the witness upon which this most
extraordinary action of the majority is based : (Record, 703. Robert
Adams, witness for contestant, on cross-examination.)

Q. You stated in your direct examination that all of the inspectors were Republic-
ans ; did you or any one else make any effort to get a Democrat to serve as inspector
with you ? A. I did.

Q. Who did you ask to serve ! A. C. M. Smith.

Q. What was his reply ? A. His team was already made up.

Q. Did he say anything further than the above remark ? A. He did not.

Q. Did you ask to serve with him, or he to serve with you? A. I asked him how
long before the polls would be open.

Q. What did he reply ? A. After a while.

Q. Then what did you say ? A. Nothing.

Q. Did you ask Mr. C. M. Smith to serve with you in holding said election? A. I
did not.

Q. In what manner, then, or in what way did you endeavor to get Mr. Smith to
serve as an inspector T A. I asked him how long betore he would open the polls.

Q. At what time was it that he made the remark that his team was made up ? A.
Before the hour of 8 o'clock on that day.

Q. What had you said to him that called forth this remark T A. I asked him how
long before he would open the polls?*

Q. In answer to your question, how long before he would open the polls, did he
then remark in reply that his team was made up ?

(Contestant objects to this question on the grounds that it is irrelevant and had
nothing to do with the issue.)

A. That was before.

Q. What did Mr. C. M. Smith say to you and what did you say to him the first time
that you had a conversation with him on the morning of the election! A. I asked

M'DUFFIE vs. TURPIN. 313

him, I says, " Well, 'squire, I suppose we holds an election here to-day." " Yes ; my
team is already made up."

Q. What did you eay to C. M. Smith, and what did he say to you in the second con-
versation ? A. " 'Squire, how long before you open the polls ?" and he replied, "After
a while."

Q. Did you have a registration list or book, furnished by A. E. Gaffe, judge of
probate, to the inspectors of each beat? A. I did not.

Q. Did you or any one else register all the voters that voted at the pretended elec-
tion which you held? A. We did not register all, bat did all them who had not
voted there before.

Q. If you had no register of the voters how did you know who had heretofore reg-
istered, and were therefore qualified to vote and who were not ? A. 1 asked them be
fore I taken their vote.

Q. Then the only evidence that you had of a voter having registered and thereby
qualifying himself for voting was what the voter said himself? A. It was.

Q. Who wrote the names of the voters on the poll-list? A. Myself and Humphry
Adams.

Q. You stated in your direct examination that you got the registration papers from
J. V. McDuffie ; do you mean the papers on which to register new voters or the papers
on which to make a poll-list? A. To register new voters.

. Q. Were you or any one else that participated in that so-called election appointed
or authorized by W. W. Drane, the chief registrar of the county, to register the
names of persons who had not heretofore registered ? A. I was not.

Q. You stated in your direct examination that two tally-sheets were made; what
did you do with each one of them? A. I put one in the ballot-box with the poll-list
and certificates, and I kept the other one at home for a contest.

Q. What did you do with this ballot-box ? A. I sealed it up and give it to the re-
turning officer.

Q. what did you do with the ballots that were cast there that day? A. I have
them at home row.

Q. Have you been served with a notice by any one to preserve or to produce said
ballots ? A. I have been served with no notice to produce the ballots, and I was told
by J. V. McDuffie to hold the ballot-box containing the tickets soon after the elec-
tion.

Q. Have you any information that there was an election held at St. Glair on the
6th day of November, 188H, by C. M. Smith and others? A. I have not.

Q. Did anybody tell you on that day or since thattime that 0. M. Smith and others
held an election there that day ? A. They did not.

Q. Did you ever hear of an election being held there that day by C. M. Smith and
others before this examination commenced ? A. I have not.

(Contestant admits that C. M. Smith and others did open the polls a short time be-
fore 5 o'clock that day, but not before.)

Q. lu what house is the election usually held at that place ? A. In C. M. Smith's
house.

It will be observed that this witness states that one of the regularly
appointed inspectors was present on the ground before 8 o'clock in the
morning, and that this inspector in effect told him he was ready to pro-
ceed to hold the election. So there was no reason to believe no poll
would be opened as stated by the majority in their report. He further
admits that he had no registry of voters, and that he received the bal-
lots of all who said they were registered.

Farmersville precinct. Here again we find two polls wereopened. At
o'clock one of the regularly appointed inspectors associated with him
Republican and a Democrat, and they opened the polls and conducted
16 election.

J. D. MOOUER, being called by contestee, and being sworn, doth depose and saith :
Q. What is your name and your age, and where do you reside, and how long have
>u resided there? A. J. D. Mooror, jr.; my age is thirty-one years; I live in

Farmersville beat, No. 5, Lowndes Gouuty, Ala. ; I have resided there all my life.
Q. Did you act as inspector at your precinct of an election on the 6th day of

November, 1888, for electors forjPresident and Vice-President, and for Representative
the Fifty-first Congress of the United States from the Fourth Congressional district
' Alabama ? A. I did.
Q. By whom were you notified of your appointment as inspector, and about what
ae ? A. Mr. Haynes, the sheriff of Lowudes County, notified me ; I don't recollect

rhat time it was, but it was about ten days before the election.

314 M'DUFFIE vs. TURPIN.

Q. Who acted with you as inspectors at that election ? A. D. G. Moorer and Har-
rison Coleraan.

Q. To what political party did these parties belong? A.. Harrison Coleman was a
Republican, and myself and D. G. Moorer were Democrats.

Q. What time on the morning of November the 6th, 1888, did you open the polls?
A. It was a little after 8 o'clock.

Q. How long did you continue to hold open the polls, and when did you close the
polls? A. We held it open from the opening to the usual hour of closing ; I think it
was 5 o'clock.

Q. Did you make the returns of the votes cast there that day, and to what offices
did you deliver the return's ? A. We did, and delivered them to the bailiff.

(The witness was handed a paper supposed to be a certificate or returns of the
election, and was asked to look at this certificate and state if it is a correct copy of
the certificate or returns ; and also state how many votes were cast for L. W Tnrpin
for a Representative to the Fifty-first Congress, and how many for J. V. McDuffie as
Representative to Fifty-first Congress.)

A. It is a correct copy of the returns. There was 26 votes cast there that day, and
26 for Turpin and none for McDuffie.

Q. Do you know of any other persons holding or attempting to hold in that precinct
an election oa that day ? A. I do.

Q. What time, if you know, did they open the poll or begin to hold their election 1 ?
Was it before you and your other inspectors had opened your polls? A. I think it
was about 9 o'clock, and after we had opened our polls.

Q. Can you state about how long after you opened your polls? A. It was about
half an hour or three-quarters after we opened.

Q. At what place did they hold their election ? A. In Mr. Youngblood's cotton
yard or lot.

Q. At what point did you and your inspectors hold your election ? A. We held it
in Youngblood's store, in his office.

P. J. RAST, being called and being sworn, doth depose and saith :

Q. What is your name, your age, and where do you reside, and howlonghave you
resided there? A. P. J. Rast; my age is forty-six years; I reside in Farmersville
beat, No. 5, Lowndes County, Ala. ; I have resided there near eleven years.

Q. Did you act as inspector or in any other capacity at your precinct at an election
on the 6th day of November, 1888, for electors for President and Vice- President, and
Representative in the Fifty- first Congress from this district ; if so, in what capacity ?
A. I did, as United States supervisor.

Q. Who were the State inspectors of the election that day ? A. J. D. Moorer, jr., D.
G. Moorer, and Harrison Coleman.

Q. Ta what political party do these parties belong? A. J. D. Moorer, jr., and D.
G. Moorer belong to the Democratic party, and I suppose that Harrison Coleman he
belongs to the Republican party.

Q. What time on the morning of the election were the polls opened in that beat ?
A. Between 8 and 9 o'clock.

Q. How long did you continue to hold open and when did you close the polls? A.
All day and until 5 o'clock in the evening.

(The certificate known as Exhibit 2 was handed to the witness and asked did he
see and supervise and look at said exhibit and state whether it is a correct copy of
the returns.)

A. It is.

Q. How many votes were cast there that day, and how many were cast for L. W.
Turpin, and how many for J. V. McDuffie for Congress? A. Twenty-six in all, .and
26 for L. W. Turpin and none for McDuffie.

Q. What is the usual total vote cast for all political parties at your precinct? A.
About 120.

Q. Do you know of any other persons holding or attempting to hold an election
there that day ? A. I know it from information, not from any personal knowledge.

Q. Do you know what time these persons began holding their election ; was it be-
fore you and the inspectors had opened your polls or after that ? A. I do not ; it was
after we opened our polls.

Q. Can you state about how long after you opened your polls? A. I can not.

Q. At what place did they hold their election ? A. In Youngblood's cotton yard.

Q. At what point did you and your crowd hold your election ? A. In shed-room
of Youngblood & Co.'s store.

Cross-examination by W. C. GRIFFIN, attorney for contestant:
Q. Can Harrison Coleman, one of the inspectors, read and write? A. I think not.
Q. Whilst you were in the house where the election was being held were you iu a

position to see the parties who were holding the election in the cotton yard ? A. I

was not.

M'DUFFIE vs. TURPIN.

315

Q. Could any of the parties who were engaged in holding the election where you
were see those who were holding the election in the cotton yard ? A. They could
not without leaving the room.

Q. Where were you that morning from 8 o'clock up to the time that the polls of the
election that you participated in were opened ? A. In my own store.

Q. How far was your store from Youugblood's store, where you held the election ;
and could you see the cotton yard from your store where these other parties held their
election, or was it on the other side of the house from you ? A. About 60 to 100 feet
from Youngblood's store. The cotton yard was immediately in front and in full view,
commencing about 60 feet, the nearest part, and running back 30 or 40 yards.

Q. About how many negroes were there that day ? A. I saw about a dozen there ;
may have been more.

Redirect :

Q. Was there anybody at the place where they held their election in the cotton
yard when you left your store that morning to go to your polling place ? A. I saw
no one there.

This testimony is not contradicted in any particular by the witnesses
for the contestant.

What excuse was there for holding this irregular poll? Upon what
ground can it be justified?

Without reason or excuse certain colored Republicans go through the
form of receiving the ballots of all who present themselves, without any
evidence as to their right to vote, and the majority of the committee
count 40 votes for the contestant at this so called polling place.

Conceding all that is claimed by the majority of the committee re-
specting the other precincts of this county, the vote will stand as fol-
lows:

Torpin.

McDufiie.

2 131

1 442

Deduct JLetohatchie precinct

249

1, 882
60

1,423

Add Letohutchie as counted by majority of committee

1,822
20

204

1,842
1,627

1,627

215

HALE COUNTY.

In this county three precincts, Greensborough, Hollow Square, and
Cedarville, are assailed by the majority of the committee in their
report.

The vote as returned by the election officers was as follows :

Turpin.

McDuffio.

Greensborough

577

330

Hollow Square

362

169

Cedarville . . .

364

153

1,303

652

316 M'DUFFIE vs. TURPIN.

The vote as returned by the majority of the committee is as follows :

Tnrpin.

McDuffie.

210

693

475

'27

400

296

1,668

Greensbor on gh precinct. At this precinct a colored Republican swears
he issued a large number of Republican tickets, and two other colored
Republicans swear they took a list of 097 men who said they voted tho
Republican ticket. This is all the testimony for the contestant.

On behalf of the contestee the following witnesses testified:

First. Joshua Clark, colored Republican inspector. (Record, 547.)

He swears he received every ballot that was voted and saw it put in
the ballot-box.

He swears that he saw the ballots counted, and he examined each
one to see whether the names were properly called.

He swears that the tickets were fairly and honestly counted and that
Turpin received every vote that was returned for him.

Then he testifies as follows :

23. Q. Do not a great many of the colored people get tickets from the person who issues
Republican tickets, and change, said tickets for Democratic tickets, and vote the Democratic
ticket secretively ? A. Yes, sir.

24. Q. Why do a great many of the colored people vote the Democratic ticket secretively f
A. Because they feared to do it, and are 'bilked about it by some of the leaders of the col-
ored people.

2f> Q. Did you see any of the colored people on the 6th day of November, 1888, as tkey
were coming to the polls with one or two tickets in their hands? A. I seen a good many of
the colored people come inside of the court-house and put the ticket that they had in their
hand into their pocket, and take one out of their pocket and bring it to me to vote.

26. Q. Werethe polls held in the court-house f A. It was.

27. (J. About how many colored people did you see, as they came in the court-house, put
the ticket that they Jiad in their hands into their pockets and take another ticket out of their
pockets ? A. I dorft knoio hoio many, but reckon I saw futty fifty or a hundred do it.

28. Q. Did you watch them loseewhether they changed their tickets ? A. No, sir ; I was
not particularly watching them.

This witness is unimpeached and his testimony would seem to be con
elusive as to the fairness of the election at this precinct.

There was a colored Republican Federal supervisor present and he
"agreed that it was done fairlv and squarely." (Record, 547.)

Second. Marcellus V. Hill (Record, 400)':

1. Q. What is your name, age, where do you reside, and how long have you so
resided ? A. Marcellus V. Hill ; I am thirty-three years old ; I live in beat No. 4,
Hale County; have lived there all my life.

2. Q. What is your occupation ? A. Farming.

3. Q. Do you own any property? If so, what? A. Yes, sir; land and stock ; I
own 185 acres of land.

4. Q. What race do you belong to? A. To the colored race.

5. Q. Where were you on the (5th of November, 1888. ? A. At Greensboro, at the
election.

G. Q. Did you get a ticket from Mathew Morse or Dave Jones on that day ; and,
if yea, what did you do with it? A. I got one from Mathew Morse a Republican
ticket I gave it to Capt. Cad Jones.

7. Q. What ticket did you vote, if any, on that day? A. I voted the Democratic
ticket straight out.

8. Q. Do not a good many of the colored people of your beat get Republican
tickets from the person issuing them and then votetheDemocratic ticket ? A. They
say they did.

M'DUFFIE vs. TURPIN. 317

\J. Q. Name those whom yon heard say that they received a Republican ticket and
tbon voted the Democratic ticket. A. Tom Hamilton, Mose Hamilton, and Stephen
Hamilton. Those are about all I had any talk with about it.

10. Q. Can you read and write?

And further this deponent sayeth not.

This man says he got a ticket from the Republican ticket-holder but
voted the straight Democratic ticket, and that many colored men say
they got Republican tickets and then voted the Democratic ticket.

Third. 0. 0. Gewin (Record. 398) :

1. Q. What is your name, age, and residence, and how long have yon resided
there ? A. C. C. Gewin ; my age is thirty-eight years ; beat No. 4, Greensboro, is my
residence, and has been since the 1st of September last.

2. Q. Where were you on the 6th day of last November, 1888 ? A. In Greensboro
at the election.

3. Q. Did you see Mathew Morse, Dave Jones, and A. B. Hunter on that day ; and
if so, what were they doing and where were they ? A. I did see them all ; they were
distributing tickets to the colored people of the beat ; they were located about 10 or
15 feet in front of the court-house, a little to the west of the door.

4. Q. Where were the polls held ? A. In the court-house, in the back part of the
room.

5. Q. Could the said Morse, Jones, and Hunter see the electors when they handed
their ballots to the inspectors? A. They could not from where they were located.

6. Q. Were Morse, Jones, and Hunter standing in about the same place all day?
A. They were there from the time the polls opened until they closed.

7. Q. Were there not Democratic tickets with L. W. Turpin's name as candidate
for Congress on them, on the table where the polls were held ? A. There were there
and at several other places in the court-house.

8. Q. Could not the electors to whom Jones, Morse, and Hunter issued tickets have
changed them without being seen by Jones, Morse, and Hunter? A. They could.

9. Q. What office do you hold in this county ? A. Sheriff's office.

10. Q. Is it not your duty as sheriff to appoint the inspectors to hold the election
at all the precincts? A. It is mine, together with the probate judge and the circuit
court clerk.

11. Q. From what class of men did you appoint the inspectors at the November
election, 1888 ? A. We appointed the best men in the Democratic and Republican
parties.

12. Q. Who were the inspectors at beat No. 4 on November 6, 1888? A. W. H.
Moore, J. M. Jefferson, and Josh Clark.

13. Q. To what party did these men belong? A. Moore and Jefferson were known as
Democrats and Clark was known as a Republican.

14. Q. Do you know Moore and Jefferson ? A. Yes, sir ; I do.

15. Q. Do you know their general reputation in the community in which they live
for truth and veracity ; and, if yea, is it good or bad ? A. I do ; it can't be excelled.

16. Q. Do you know Josh Clark's general reputation in the community in which
he lives ; and, if so, is it good or bad ? A. I do ; it is good.

It appears from this deposition that the Republican ticket-holders
were outside of the court-house when the poll was held and could not
see the voters after they entered the house ; that the Democratic tickets
were at various places around the polls and the voters had easy access
to them, and that the best men of both parties were appointed inspect-
ors.

Fourth : T. W. DeYampert. (Record, 548).

1. Q. What is your name and age, and where do you reside, and how long have you
so resided? A. My name is T. W. De Yampert; I am fifty-three years of age; I re-
side in Greensboro, beat No. 4 ; I have so resided for the last ten years.

2. Q. Where were you on the 6th day of last November ? A. I was in beat No. 4 at
the election, and acted, by request of Mr. R. B. Douglas, assistant registrar as reg-
istrar for that day.

3. Q. About how many colored electors registered there that day ? A. About
seventy-five or eighty.

4. Q. Didyou issue any Democratic tickets to the colored electorsof said beat on that
day? A. I gave Democratic tickets to all I registered except four or five. I don't
now remember more than two or three who said they did not want Democratic tickets.

5. Q. What name was on said tickets as a candidate for Congress from the Fourth
district of Alabama ? A. Louis W. Turpin.

318 M'DUFFIE vs. TUEPIN.

6. Q. What did the electors to whom you issued tickets, as before stated, do with
said tickets? A. I am certain and satisfied that some of them voted the said tickets,
as they carried them directly from me into the court-house where the ballot-box was.
I did not watch all of them, and consequently could not say as to all of them.

Here we find seventy-five or eighty colored voters, except four or five,
taking Democratic tickets from oiie man and some going directly into
the court-house with them.

If the majority conclude that because a man took a Kepublican ticket
and then passed into the court-house he necessarily voted the Republi-
can ticket, then why do they not hold that because these men took
Democratic tickets and then passed into the court house they neces-
sarily voted the Democratic ticket ? We leave the majority of the
committee to ponder over their consistency.

We hold that there is nothing in the records to impeach the returns
from this precinct.

Cedarville precinct. Again we have presented the same idea that
colored men necessarily vote the Republican ticket and that the num-
ber of Republican votes cast is gauged by the number of Republican
tickets issued. Again we find a ticket-holder issuing hundreds of
tickets and superintending the recording of the names of the voters, and
then watching each voter as he approached the polls and swearing he
cast the identical ballot he received from him, the ticket-holder. It is
taxing the credulity of any man too much to believe any such unrea-
sonable statement or any such improbable, if not impossible, thing.
Common sense and common experience teach us that such statements
are false.

But in this instance the falsehood is exposed by direct and positive
evidence:

A colored man by the name of Crook was the ticket-holder, and he
swears he issued 490 tickets, and that they were voted for McDuffie;
that he was standing or sitting in a position from which he could see
and did see the tickets he issued voted. He undertakes to give the
manner in which many of the voters named approached the polls.

He displays a memory which was never equaled in the history of the
world, and we refer to his testimony as a specimen of that relied upon
by the majority in this case.

That Crook was untruthful, see testimony of D. D. Ward. (Record,
548):

1. Q. What is your name, age, and where do you reside, and how long have you so
resided? A. I am thirty-eight years old ; my name is D. W.Ward; I reside in Cedar-
ville, beat No. 7, and have so resided six years.

2. Q. Where were you on the 6th day of last November? A. I was in Cedarville,
Hale County, Ala., heat No. 7.

3. Q. What were you doing there at that time? A. J was acting as clerk of the
election.

4. Q. Was there any one issuing tickets to the colored electors there on that day?
A. There was ; Dick Crook issued them.

5. Q. Did said Dick Crook watch every elector to whom he had issued a ticket, to
pee whether said elector voted the same ticket that he had given them? A. He did
not. From where I was sitting, behind the table, I conld just see the top of his hat,
because there was a big crowd between Dick Crook and the poll?, and it was impos-
sible for him to have watched the said electors or to know what ticket they voted.

6. Q. Was there not a large crowd standing around said Dick Crook during the time
he was issuing the tickets? A. There was a very large crowd standing around him.

7. Q. Was there notalso a large crowd standing around the polls waiting for an op-
portunity to vote ? A. The polls were held on the public road, with ropes stretched
around said polls to keep the crowd back, with only one place for the elector to hand
in his vote, and there was a large crowd around pulling and scuffling to get their
vote.

M'DUFFIE vs. TURPIN. 319

William H. Locke (Record, 549) :

7. Q. Was there any one there on that day issuing tickets to the colored electors ;
if yea, who was he? A. There was; Dick Crook issued tickets there on that day.

8. Q. Did Dick (Jrook watch the electors to whom he had given tickets to see if
they voted the tickets he had gitfeu them? A. He did not.

y' Q. How do you know that he did not watch the electors to whom he had given
tickets to see if they voted the tickets he had given them? A. I was standing
in 4 or 5 feet of him most of the day, and he (Dick Crook) had his back to the polls
most of the da\ T .

10. Q. Where, were you and Dick Crook sitting at on that day ? A. Within 30 or
40 feet of the polls ; he sitting on one end of a wagon-body and I standing at the
other.

11. Q. Was there not a large crowd standing around Dick Crook most of the day ?
A. There was.

12. Q. Was it possible for him, with the crowd standing around him, to see whether
the electors voted the same tickets he gave him ? A. It was not possible for him to
see it.

15. Q. Did the electors, after they had gotten a ticket from Dick Crook, go imme-
diately to the polls ? A. No ; they did not.

Did colored men take Democratic tickets and have access to them ?
William H. Locke (Record, 549) :

1. Q. What is your name, age, and where do you reside, and how long have you so
resided? A. My name is William H. Locke; I reside at Cedarville Beat No. 7, Hale
County, and I li'ave so resided about twelve years ; I am forty-eight years old.

2. Q. Where were yon on the 6th day of November, 1888, and what were you
doing ? A. I was at Cedarville, Beat No. 7, where the election was held.

3. Q. What did you do on that day ? A. I acted as assistant registrar.

4. Q. About how many colored electors did yon register on that day ? A. About sixty.

5. Q. About how many of those you registered did you give Democratic tickets f A. I
could not say ; / issued about seventy-five tickets, mostly to those whom I registered.

6. Q. Did the tickets that you issued have L. W. Turpin's name on them as a candidate
for Congress f A. Yes, sir.

13. Q. Were there not a great many Democratic tickets on the table where the polls were
held ? A . There were.

14. Q. Were there not Democratic tickets lying around the polls in several places? A.
There were.

1(> Q. Could not the electors to whom Dick Crook issued tickets have voted some other
ticket without his knowledge^ A. Yes.

17. Q. Do not the leading colored people of your beat abuse and vilify any colored man
who votes the Democratic ticket publicly f A. They do.

Was the election fair and the count honest (Record, 550)?
VAN HAMBRIGHT, being called and duly sworn, deposes and says:

1. Q. What is your name, age, and where do you reside, and how long have you so
resided? A. My name is Van Hainbnght; Iain forty-seven years old; I live in
Hale County, beat No. 7, commonly called Cedarville beat; I have so resided for the
past twenty-five years.

2. Q. Are you a Democrat or a Republican ? A. I am a Republican.

3. Q. Where were you on the 6th day of November, 1888? A. I was at Cedarville
when the election was held,

4. Q. What were you doing there ? A. I was one of tne inspectors of the election.
f>. Q. Were you present during the entire day ? A. Yes, sir.

(i. Q. Who were the other inspectors? A. Mr. O'Donuell and Mr. Percy Waller.

7. Q. When did you count the votes or ballots? A. Immediately after the polls
were closed.

8. Q. Were you not present while the votes or ballots were being counted, and
did you not assist in counting them? A. I was present and assisted in counting the
ballots.

9. Q. Were not the said ballots honestly and fairly counted as required by law ? A.
sir.

10. Q. Are you a colored man or a white man? A. I am a colored man.

This is the witness referred to in the report of the majority as " the
illiterate colored inspector."

He signs his own name, and there is nothing to indicate that he is an
illiterate or ignorant man. He certainly compares most favorably with

320

M'DUFFIE vs. TURPIN.

Crook, the ticket holder, upon whose testimony the majority lay so
much stress, for on page 80 of the record it will be observed Crook could
not write, and signed his name Dick (his x mark) Crook.

D. W. Ward (Record, 549).

This witness was one of the clerks at the election and fully corrobo-
rates the testimony of Van .Ham bright, the colored Republican inspector
quoted and referred to above.

We sustain the returns from this precinct.

Conceding the other precincts of this county to be as claimed by the
committee, the vote will stand :

Turpin.

McDuffl.e. .

I'fturued vote

3, 170

1,220

Deduct Hollow Square as returned

362

169

Add Hollow Square as counted bv committee

2,808
59

1,051

475

'J, 867

i, r.L'i;

1, 526

Majority for Tnrpin

1,341

WILCOX COUNTY.

Allenton. The election officers, three in number, two Democrats and
one Republican, returned under oath that the number of votes cast at
this precinct was 309, of which number Turpin received 242 and Mc-
_Duffie received 67. The only evidence in the record respecting this
precinct is that of I. L. Grace, a colored man and a member of the Re-
publican executive committee, who testifies that he stood between 35
ii nd 40 feet of the polls all day ; that he issued to 316 colored men each
a ticket with McDuffie's name on it ; that he saw the voter deposit his
ballot; that three colored men voted for Turpin and between forty and
forty-five white voters voted there that day. On this testimony alone
the majority set aside the sworn return, and count this precinct,
Turpiu 27, McDuffie 316. The tickets were not examined, the voters
were not examined, and the testimony of the only witness that was ex-
amined gives Turpin either 16 or 21 more votes than the committee
gives h'im. The undersigned do not believe that the official return of
this precinct should be set aside.

Pine Apple. The election officers, three in number, two white and
one colored, returned under oath that the number of votes cast at this
precinct was 381, of which number Turpiu received 348 and McDuffie
received 33. Two witnesses are examined as to this precinct ; one
knows nothing except that he saw a list of 211 names said to have voted
for McDuffie. The list is not produced. The other testifies that he
issued 211 McDuffie tickets to that many colored voters and saw them
go to the polls to vote them. On this testimony alone the majority set
aside the sworn return of three election officers and count this precinct,
Turpin 180, McDuffie 211. Neither the tickets in the box nor the voters
who voted were examined. The undersigned do not believe that the
official return of this precinct should be set aside.

Clifton. The election officers, three in number, two Democrats and
one Republican, returned under oath that the number of votes cast at this
precinct was 215, of which number Turpin received 190, and McDuffie re-
ceived 25. Frank Black and James Wickes. colored men, swear that

M'DUFFIE vs. TURPIN. 321

233 votes were polled at the election ; that 29 of them were for Turpiu,
and 204 were for McDuffie. Black issued 204 McDnffie tickets to colored
men, and saw them voted. Dunaway, one of the inspectors of the elec-
tion, swears the return was correct, and that " the votes cast by
the electors were the identical votes counted." flolloman swears that
neither Black nor Wickes kept any tally -list, that the character of each
is bad, and that neither is worthy of credit. On this testimony the
majority set aside the sworn return of the election officers and count as
cast at this precinct 233 votes, of which they give to Turpiu 29 and to
McDuffie 204. Neither the tickets in the box nor the voters who voted
were examined. The undersigned do not believe that the official return
of this precinct should be set aside.

Black's Bluff. The election officers, three in number, returned under
oath that the number of votes cast at this precinct was 251, of which
number Turpin received 213 and McDuffie received 38. Ervin and
Fisher and Shelbourne testify to the issuing of 205 McDuffie tickets,
and aver that number of votes were cast for McDuffie and 33 for Turpin.
Davis, colored, swears that a great many colored people voted for Tur-
pin ; and Spencer, oue of the managers of the election, swears the
" votes were counted as cast." On this testimony the majority set aside
the sworn return of the election officers, and count as cast at this pre-
cinct 238 votes, of which they give Turpin 33 and McDuffie 205.
Neither the tickets in the box nor the voters who voted were exam-
ined. The undersigned do not believe that the official return of this
precinct should be set aside.

Pairie Bluff. The election officers, two white and one colored, under
oath, returned that the number of votes cast at this precinct was 259,
of which number Turpin received 245 and McDuffie received 14. Two
witnesses, colored men, testify that 254 votes were polled that day ; that
241 were for McDuffie aud 13 for Turpin ; that they distributed tickets,
saw the voters go to polling place, and kept list of voters. Palhorn, the
colored inspector, swears the election was fairly conducted and the
tickets voted correctly counted and returned. McCurdy and Robins,
managers of the election, swear the same thing. On this testimony the
majority set aside the sworn return of the election officers, decide that
only 254 votes were cast, and that of this number Turpin received 13
and McDuffie received 241. Neither the tickets in the box nor the
voters were examined. The undersigned do not believe that the official
return of the officers at this precinct should be set aside.

Canton. The election officers, three in number, under oath, returned
that the number of votes cast at this precinct was 234, of which Turpin
received 223 and McDuffie received 11. One witness, a colored man,
swears that 188 votes were cast by colored men for McDuffie, and about
twenty -five Democrats voted there that day ; witness was 75 yards from
polls, and on cross-examination says he can not swear the voters depos-
ited their ballots or that McDuffie received more than 1 vote that day.
On this testimony the majority set aside the sworn return of the officers,
and count this precinct Turpin 11, McDuffie 188. Neither the tickets in
the box nor the voters were examined. The undersigned do not believe
the official returns of the managers at this precinct should be set aside.

Geisbend. The election officers, two Democrats and one Republican,
under oath, returned that the number of votes cast at this precinct was
205, of which Turpin received 190 and McDuffie received 15. Two
witnesses, colored men, swore that they distributed 192 McDuffie tickets
which were voted, and that seven white men voted that day. On this
H. Mis. 137 21

322

M'DUFFIE vs. TURPIN.

testimony the majority set aside the sworn return of the election officers,
and count this precinct Turpin 9, McDuffie 172. ^Neither the tickets iior
the voters were examined. The undesigned do not believe the official
returns of the managers at this precinct should be set aside.

Counting the other precincts of this county as claimed by the majority
the vote of the county will stand :

Turpiu.

McDuffie.

Returned vote -

4 811

607

Deduct :
Siiow Hill

464

105

Bethel

385

White Hall

116

Boiling Springs . ..

200

1,165

188

3,646

419

Add vote as counted by committee from
Suow Hill

445

Bi-tbol

343

White Hall

BoiliD ir Springs

200

228

1,072

Majority for Turpin

3. 874

1 491

1,491

PERRY COUNTY.

Hamburg. The election officers, two white Democrats and one colored
supervisor, under oath returned that the number of votes cast at the pre-
cinct was 295, of which Turpin received 212 and McDuffie received 83. J.
C. Hamer testifies that he saw issued 25i> McDuffie tickets ; that he saw
the voters with sucli tickets enter the door of the voting house ; that the
total vote that day was 257 colored and 44 white ; that one colored man
he knows voted the Democratic ticket. Benjamin, colored Republican
supervisor, swears that everything was regular, and theie was no fraud
in counting the vote. Bell, the clerk, swears the same tiling substan-
tially. On this testimony the majority set aside the sworn return of the
election officers and count the vote Turpin .'5, McDuffie 25(5. Neither
the tickets nor the voters were examined. The undersigned do not be-
lieve the sworn return of this precinct should beset aside.

Marion. Official return Turpin 097. McDuffie 86. Wilson (page
232) testifies that he issued 583 McDuffie tickets, but can not say they
were voted. Matt Boyd (page 299), in his examination in chief, says
that 600 McDuffie tickets were issued, and all went straight to the polls
and voted except two. He does not say they voted these identical
tickets; on cross-examination (page 300) ; he said he would not swear
they did vote them. There was a house that concealed them from view
on their way to polls. This is all contestant's evidence as to the number
of tickets issued and voted. Nick Stephens (page 226) first swears the
poll-box was changed, cross-examination takes this back, and says he
knows of no change of box or fraudulent counting of returns. The
contestee took the testimony of James Lockhead, inspector (page 439),
and J. B. Shivers (page 443), judge of probate* They show that this

M'DUFFIE vs. TURPIN.

323

election was as fairly conducted as possible ; that the count was fair,
corroct, and legal ; contradicts Nick Stephens in almost every particular.
On this testimony the majority set aside the return and count the vote,
Tnrpiu 83, M. Duffle 583. Neither the tickets in the box nor the voters
were examined. The undersigned do not believe the sworn returns
should be set aside.

Uniontown. The election officers, two Democrats and oneEepublican,
under oath returned that the vote cast was 201 for Turpin and 2 for
McDuffie. The officers at this poll were regularly appointed by the
proper officers, opened the polls at the proper time and place, and re-
ceived all legal votes tendered. The officers properly certified the re-
turn ; they were properly delivered to the returning board for county and
counted.

Another box or poll was opened in a remote part of the town, not
the usual place of holding elections, by persons unauthorized so to do,
and in this box a number of tickets were deposited, one witness says
953, another 1,153, all for McDuffie. This box was not counted by the
returning board, and should not have been ; there is no pretense that the
regular return was not correctly counted ; the majority admit this sec-
ond box or voting place was not authorized by any law or statute of the
State, and the evidence shows that there was no mistake or misappre-
hension on the part of the voters. It was deliberately done, avowedly
for want of confidence in the regularly appointed and acting officials of
the election. Under no view of the law or facts can the tickets deposited
in this box, even if we knew how many there were, be counted for either
party.

The majority count this precinct Turpin, 210, McDuffie, 955, thus in-
cluding the illegal with the legal return. This can not be done, and
the undersigned believe the return as made must stand.

Counting the other precincts as claimed by the majority the vote of
this county stands :

Turpin.

McDuffie.

Returned vote ... ...

2 961

650

Deduct Perry ville, where returns were not signed

142

2, 819
609

609

Turpin's majority

2 210

t us now consider the action of the majority with regard to the
e in Dallas County.

'artin's Station. As to this precinct the two witnesses, Ned Petway
Acton Mapping (p. 154), upon whose testimony the majority of the
mmittee rely to change the result of the election, stood from 120 to 150
yards away from the polls, upon a porch of a store on the same side of the
street. One other witness, Nathan Stratton (p. 153), the Republican.
United States supervisor, was in the polling-room, and admitted that
he knew nothing of the number of Republican votes cast for McDuffie
except as he had been told by the other two witnesses. He testified in
one breath that such number was 324, and in the next that Mr. Bam-
berger, one of the managers, at the close of the election asserted that
there were 355. To this remark he said, "That was all right." Ned
Petway (p. 146) swears there were issued by him to colored Republi-

324 M'DUFFIE VS. TURPIN.

cans 324 tickets, and only 324 colored men voted there that day. Strat-
ton says ten of the colored men voted the Democratic ticket. Actoii
Mappius swears that he don't know whether the voters whose names he
placed on his list voted the ticket they got from him. The officers of
the election were three white men and two colored men.

Lewis Bamberger (p. 437) testifies that he was an inspector at said
election ; that there were cast for Turpin 383 votes and for McDuffie2 ;
that these votes were counted and returned as cast; that the ballot-
box was not changed ; that the count of the vote was fair, honest, true,
and correct, and the return a true statement. He also testified that a
person sitting or standing on the porch where Petway and Maffin were
could not see the window at which the ballots were received, because
there was and is a building between the two places.

J. M. Anderson (p. 560) corroborates Bamberger as to the above state-
ment, and also says that he gave out a good many Democratic tickets
to colored voters ; names three that he recollects, and says there were
fifteen or twenty more.

We think the return should stand.

Pence. The election at this precinct was held by regularly appointed
sworn officers, among whom was one colored man. The returns were
correctly made and properly certified. The majority of the committee
propose to set it aside upon the testimony. (R. Sanders, p. 152, and as
R. Isaac, p. 340). He says he went to the polls to issue Republican
tickets ; had 250 of them ; that Mr. Turpiu's name and Mr. McDuffie's
name were on them ; that he had issued all of them but 31 ; that he issued
them to colored voters. He was 50 yards from voting place. Each voter
held his ticket in such a position from the time he received it until he had
voted it so that he could see it. There was not anything to obstruct his
view, and that he kuew these 219 ballots were cast forMoDuffie, but he
did not know who were the officers of the election. This fair statement
of this man's evidence is sufficient to reduce to absurdity the conclusion
of the committee to count 219 for McDuffie and 8 for Turpiu when only
208 votes were cast at that poll that day.

The contestee took the deposition of William Bell (p. 646), who was
registrar, and in no way connected with the conduct of election. He
testifies that Richmond Isaac could not see the voters deposit their bal-
lots. He (Isaac) was on one side the house while the polling place was
on another, and his vision would have to go round the corner and turn
at right angle to see the polls.

This was all the testimony taken by contestant and contestee in rela-
tion to this precinct until the testimony in rebuttal was taken by con-
testant, when he examined 0. D. Martin (p. 769), and by him attempts
to prove that the ballots were not counted till next day ; but he says
the box was kept by the inspectors, or one of them, all the time. But
no witnesses could be examined, under the law, by contestee, and the
contestant at this period could only take testimony in rebuttal. As
nothing had been said about it before, this could not be in rebuttal.
The committee can not consider this testimony. If considered, it only
proves that the strict letter of the law directing an immediate count
was not complied with, but no effort is made to show that the inspectors
tampered with this box or manipulated the returns, which must stand
as the true returns of this precinct.

Liberty Hill. No election was held at this precinct. There is testi-
mony tending to show that five or six negroes pretended to hold one,
but they never pretended to make any return of the same to the

M'DUFFIE vs. TURPIN. 325

sheriff, and the witness Turner (p. 161) did not know how many votes
were cast nor how many tickets he issued. After the time for the
contestee to take evidence had expired, contestant called a witness,
Thomas, who claimed to have been a Federal supervisor at said election
and to have made a return to the chief supervisor. It is upon this
alleged return the majority of the committee act, yet this return was
not produced in evidence; the fair inference is that it could not be, or
rather that none such was ever made. Thomas could not remember the
uame of any other man on the ticket, which he swore he read over
197 times in tallying the vote, and could only remember McDuffie's be-
cause he had received newspapers iiom him since the election and was
subpoenaed to testify for him.

Burnsville precinct. Here contestant claimed 435 votes and admitted
60 for Turpin. The returns give Turpin 475 and McDuffie 22. The
majority of the committee give Turpin 60 and McDuffie 288.

The testimony shows that some Republicans claimed to have stolen
a ballot-box from a room adjoining the polling- place. No witness
who saw such box is called, nor is there any evidence to show whether,
in fact, the stolen article was a ballot-box or a hen-coop. We have the
usual story of two colored men, one issuing tickets and the other keep-
ing a list of the names, and two others watching the voters to see that
the tickets issued were voted; but the other watchers are not put on
the witness stand. The list-keeper, and issuer are shown to have been
where they o ,ould not see the polling; the election was legally con-
ducted by officers appointed according to law: and one colored Repub-
lican inspector and the colored Republican United States supervisor
(page 564) both testify to their close and vigilant attention to the con-
duct of the election and to the truth and correctness of the count and
returns. These witnesses are corroborated by the two white inspectors
(Mason, p. 564; Berry, p. 565). But the majority of the committee dis-
regard these facts, and count as above mentioned for McDuffie.

Union. To set this election aside and count the votes for McDuffie
which were cast for Turpin, the majority of the committee rely on the
testimony of Hector Jones and Oscar Moseley. The former claims to
have kept a list of the voters to whom he issued Republican tickets,
and also of the white Democratic voters, that day, and to have had
men to watch that the colored men voted the ticket he gave them. He
admits that there were men between him and the polls, but says there
were not more than ten at a time. He also watched to see that none
changed their tickets, but does not know how any except himself voted.
The men he had stationed to see that the voters did not change their
tickets were not called as witnesses, except Oscar Moseley, who testi-
fies that the voters could have changed their ballots without his seeing
them, and that he did not see any voter at that election deposit his
ballot but himself.

Valley Creek. The majority of the committee changes the result of
the election at this precinct, where 401 votes were cast for Turpin and
9 for McDuffie, so as to give the latter 382 votes and the former only
^0. This is done upon the testimony of two witnesses as to a count
liey made, in the face of the fact that there was a Republican who

uld read on the board of election officers, and the conduct and action
f those officers was sustained by the testimony of two witnesses, one
f whom was a leading and influential life-long Republican.

Pine Flat. Three election officers certify under oath that Turpin re-
ceived 249 votes and McDuffie received 80 votes. The colored inspector

326

M'DUFFIE vs. TURPIN.

sustains under oath the correctness of the count, and there is no satis-
factory evidence impeaching the correctness of the return.

Vernon. We find that the return from this precinct has not been
successfully assailed.

Dublin. We find that the return from this precinct has not been suc-
cessfully assailed.

Elm Bluff. We find the return from this precinct has not been suc-
cessfully assailed.

River. We find the return from this precinct has not been success-
fully assailed.

Wood Laicn. Return correct.

Marion Junction. Return correct.

Old Town. Return correct.

Counting the other precincts as claimed by the majority (except
Boykins which does not enter into ther eturu), the vote of this county
stands as follows :

Turpiii.

McDuffie.

Returned vote

5 705

1 706

Deduct:
Mitchell's Mill

Brown's

235

205

5,440

1,616

Add:
Mitchell's Mill

345

Brown's

249

Smiley* . ....... ....

Chillatcbe*

144

Carlowville* .. ....

101

925

5,456
2,541

2,541

2,915

*Not counted by board.
RECAPITULATION.

County.

Turpin.

McDuffie.

1,842

1,627

2,867

1, 526

Wilcox County .-

3,874

1,491

Perry County -

2,819

609

Dallas County

5,496

2,541

Total

16, 878

7,794

Tnrpin'a majority

7,794
9,104

It will thus be seen that conceding to the contestant all that he can
in reason and good conscience claim, there is still a majority against
him of more than 9,000. The majority arrive at quite a different conclu-
sion, but in doing so we respectfully submit an examination of the rec-
ord will disclose that they have disregarded well-established principles
of law and violated rules of evidence, the maintenance of which is es-

M T DUFFIE VS. TURPIN. 327

sential to the ascertainment of the truth. We submit the following
resolutions in lieu of those offered by the majority:

Resolved, That John V. McDuffie was not elected a Representative
in the Fifty-first Congress from the Fourth Congressional district of
Alabama, and is not entitled- to a seat therein.

Resolved, That Louis W. Turpin was duly elected a Representative
in the Fifty-first Congress from the Fourth district of Alabama, and is
entitled to retain his seat.

CHARLES F. CRISP.

CHARLES T. O'FERRALL.

J. H. OUTHWAITE.

LEVT MAISH.

L. W. MOORE.

E. P. C. WILSON.

JAMES R. CHALMERS vs. JAMES B. MORGAN .

SECOND MISSISSIPPI.

Contestant charged intimidation of voters, corrupt manipulation of
registration, stuffing and stealing of ballot boxes, and illegal voting.
The committee find that fraud in all these forms existed, but as the
number of votes affected thereby was not sufficient to overcome the
majority returned, the contestee is still entitled to the seat. Mr. Houk
files a minority report, contending that a conspiracy is proved which
overthrows the prima facie of the returns. (See minority report, p.
349.) The resolutions presented by the committee were adopted August
18, 1890, by a vote of 115 to 15 (on division, the Speaker "counting a
quorum"). The debate will be found on pages 8758 to 8767 of the
Eecord.

(1) Presumption of correctness of returns.

Evidence as to certain boxes can not affect others which are not
assailed. 329

JUNE 20, 1890. Mr. DALZELL, from the Committee on Elections, sub-
mitted the following report:

The Committee on Elections, having had under consideration the con-
tested-election case of James Ei. Chalmers, contestant, v. James B. Mor-
gan, contestee, from the Second Congressional district of Mississippi,
reports that it is not proven by the record that the contestant was
elected, nor that the contestee was not; but it is proven that the elec-
tion in question was characterized by frauds disgraceful to our civiliza-
tion, and such as to call for severe animadversion on the part of every
honest man.

The election in question was held on the 6th day of November, 1888.
The contestant was the Republican nominee for Congress and the con-
testee the Democratic. The latter was returned as elected by a plu-
rality of 8,161 votes, a plurality at least four times as great as his legal
plurality.

The Second Congressional districtof Mississippi consists of nine coun-
ties, Benton, De Soto, La Fayette, Marshall, Panola, Tallahatchie, Tate,
Tippah, and Union. No question is made as to the honesty of the
election in the two last named, and no reason has been shown why the
honest voters thereof should be disfranchised.

With respect to the other seven counties, there is a number of boxes
as to which no testimony was taken, but it may safely be affirmed that
in not one of these counties, taken as a whole, was the election an
honest one. Fraud in various forms, including intimidation of voters,
corrupt manipulation of registration, stuffing and stealing of ballot-
boxes, and illegal voting, finds ample illustration in all of them.

If we may judge from the evidence, this state of things is to be ac-
counted for by the existence, in that district, of a different standard of
morals from that which is generally accepted as the correct one by
communities recognized as moral.

Mr. A. S. Buchanan, a lawyer, a resident of this district, who " at-
tends the circuit and chancery courts in De Soto and Tunica Counties
regularly," and who also practices in Memphis, Tenn., was one of the
coutestee's counsel and also a witness for him. In the course of his
cross-examination, he testified thus (Record, p. 837) :

Q. As a Mississippi Democrat, which do yon think preferable, the triumph of Re-
publicanism or the suppression or partial suppression of negro suffrage ? A. Well,
as a Misa. Democrat, I would say that I regard either of those alternatives as a very
unfortunate one. 1 think that anything like wholesale ballot-box stuffing or fraud

331

332 CHALMERS VS. MORGAN.

in elections is almost, if not quite, as greatly to be deplored as Republican rule would
be. I hardly know which of the two would be most to be deplored.

Q. Then, don't you think that a little retail ballot-box stuffing here and there in
Miss, preferable to Republicanism? A. If, as a tax-payer in Miss., the two alterna-
tives were presented to me of being ruined by taxation or having some other fellow
besmirch his conscience by ballot-box stuffing, I would not interfere to prevent the
success of the Democratic party by that little game on the retail plain. But, if I had
to take the oath of office and perjure myself in order to procure the triumph of the
Democratic party, I'd let the party go to the devil.

This is Democratic testimony.

On the other hand, Henry Wood, an old, respectable colored man and
a Bepublican, who has labored for his party since he has been free, and
has lived on the same place, near Olive Branch, in De Soto County, for
forty years, says, in speaking of the men who hold elections :

No moneyed mau ain't never around there; they get a few bull-dozers to stand
around, there; a gentleman never does nothing dirty, bat he puts out his money and
gets these dirty-handed men to handle dirt for him ; he never does nothing dirty him-
self. (Record, pp. 553 and 554.)

The facts proven with respect to the election are just such as might
be expected from the testimony of these two witnesses, except that they
show that Mr. Buchanan was understating the situation when he spoke
of " the little game" being carried on " on the retail plan."

That these two witnesses were simply making a plain statement in
accordance with existing public sentiment in the section of Mississippi
in which the Second Congressional district is. will further be apparent
by reference to an editorial article which appeared November 15, 1888,
iu The Ledger, a Democratic paper, published in Tupelo, Miss., which
article was in evidence as an exhibit to the deposition of W. H. Gibbs,
one of contestant's witnesses. It is as follows:

THE RACE PROBLEM.

The result of the late Presidential election in the South shows very plainly that the
negroes are Republicans only through prejudice and hatred toward the white people
of this section, who are nearly all Democrats. They have proven conclusively in this
election that they are actuated solely by a desire to antagonize the white people
the tax-paying Democrats among whom they unfortunately live. Their old and
flimsy pretext heretofore for being Republicans that they were fearful that they
would be put back into slavery was completely exploded by the present Democratic
administration, which has been more friendly to the negro's interests than the Repub-
licans ever were.

But with all of this, the negroes in this State turned a deaf ear to their best interests
and voted for Harrison for President, for the sole and express purpose of being in
opposition to the white people of the South.

When the race issue has reached this stage it is due time to call a halt. The
negroes must remember that the white people the Democrats are taxed heavily to
provide them with good schools, to educate their children ; they must remember that
when in any kind of need they go direct to Democrats every time for help and rarely
fail to secure assistance and now for them to persistently vote against us is simply
going a little too far. They must consider that the Democrats are now running the
governmental affairs of Mississippi and the South, and will continue to do so as long
as they have a spark of manhood left within them, and it is astonishing to see the
negroes stubbornly and vainly fighting the party and people that make the laws
under which they live and are governed.

There are a few good and true negro Democrats in Mississippi, but a large majority
of them are insolent, turbulent Republicans.

They are actuated firmly by prejudice against the white people, and the time has
arrived for us to shut down upon them in some manner. What shall it be?

The problem thus presented, "How to shut down upon insolent, tur-
bulent Eepublicans?" appears to have been effectively solved in the
Second Congressional district of Mississippi. Several methods were
put in practice, some of which we propose to describe.

CHALMERS VS. MOEGAN. 333

One method found to be quite effective was by the organization of
"unterrified and determined Democrats" into military companies for
campaign service. This was the method followed in Heruando, De Soto
County, the home of the contestee. We append an abstract from the,
De Soto Times of Thursday, October 11, 1888, as found on page 238 of
the record :

DE SOTO TIMES, THURSDAY, OCTOBER 11, 1888.

'Published every Thursday. W. S. Slade, editor and proprietor. Subscription rates: One copy 1 year,
$1.00; one copy 6 months, 60 cents; one copy 3 month.s, "0 cents.]

ATTENTION! ATTENTION!

HEKNANDO, Miss., Oct. 8. 1888.

A large aud enthusiastic crowd of " unterrified" and determined Democrats assem-
bled at the court-house last night for the purpose of reorganizing the "Old Guard,"
the "De Soto Blues."

After a few preliminaries a call for volunteers was made, when 54 present enlisted
their names as members of the "De Soto Blues." After the enlistments had taken
place an election for officers was had with the following result, to wit :

D. M. Slocum, captain. J. C. Gillespie, 3rd se'gt.

T. W. White, jr., 1st lieu't. C. C. Kirkland, 4th se'gt.

Geo. Wood, SJd lieu't. J. C. Ballard, 1st corp'l.

J. H. Johnson, 3rd lieu't. Oliver Dockery, 2d corp'l.

J. W. Lauderdale, ord. se'gt. Harry Green, 3rd corp'l.

Stephen Humphreys, 2d se gt. W. H. Meriwether, 4th corp'l..

The chair, upon motion, appointed a committee of five, to wit, W. S. Weissinger,
E. B. Gwyn, George Wood, J. H. Johnston, and B. Goodman, to receive the names of
those desiring to enlist in said company. All recruits will therefore report to either
of these gentlemen.

Messrs. Payne, Gwyn, and C.Jones were appointed to select a uniform and report
their selection to the company at its meeting at the court-house on Tuesday night,
9th inst., at 1\ o'clock.

Let all attend.

D. M. SLOCUMB, Pres't.

E. W. SMITH, Sec'y.

According to the testimony of D. M. Slocumb, postmaster at Her-
nando Court House, and captain of the "Old Guard" of "unterrified
and determined Democrats," this company was originally organized in
an election year, 1876, reorganized in 1884. another election year, aud re-
organised again in 1888, another election year. In answer to a question
as to how it happened "that the reorganization was just a month or so
prior to the election ?" he explained (Record, p. 664):

Before elections we have no excitements here or disturbances. They are more likely
to occur in campaigns, and, as before stated, to prevent disturbances or violations of
law, riots, etc., and reorganizations were made to fill up the deficiencies and to make
it effective. * * * ,

How " effective " such companies a,e in preventing "disturbances,
violations of law, etc.," will be made clear from the further testimony
of this same witness, who tells (Record, pp. 664-S) of a miscellaneous
shooting into houses and stores iu Hernando ou the night before the
election. He heard the shooting, saw the bullet- holes in the buildings
next morning, but when asked

Did you with your company, or did any officer iu Hernando, attempt to stop the
shooting that was going on here the night before the election ? If so, state who made
the effort, and all about it.

He made answer :
J did not, and I don't know that any officer of the company did.

334 CHALMERS VS. MORGAN.

Further proof of the effectiveness of an " Old Guard " of unterrified,
(hardjy, however, corroborative of its gallant captain's evidence), will
he found in the testimony of Sowell Newsoru, an old gentleman seventy-
five years of age, who spoke as follows (Record, p. 1036) :

Qu. 10th. Did you vote in the last November election ? Ans. I did not.

Qu. llth. Why did you not vote ? Ans. Judge Morgan had been my attorney and
I had been friendly with him and I wished him well, but I couldn't vote for him ; the
shoot ing was so heavy Monday night before the election and the next day a good
deal, I was afraid to go out the next day because some stray ball might hit me. I
intended to vote late in the evening when the time I thought it would be most quiet.
I intended to vote for Chalmers that evening, and there was a hard rain that even-
ing. My calculation was that the Republican vote would be throwed out as usual and
it would be no good, and in pursuance of my wife's entreaties I didn't go out ; she was
afraid I might get hit wjth a stray ball.

Qu. llth. Please tell what you know about the shooting in Hernando the night
befoie the election. Ans. I think the shooting commenced on Monday night before
the election and continued oft' and on the wbolj night; I heard it, and I got news
that they were shooting into my store and on the negro houses all around; done by
that regular organized company there ; I didn't see any shooting, but there were men
there who saw and knew who was shooting. I was told by Austin Bell and Perry
Martin they saw the men and knew who they were shooting.

Qu. 12th. Did you know of the town marshal of Hernando or of the mayor making
any efforts to put a stop to this shooting ? Aus. I was told by Bell and Martin that
the mayor and the marshal was with them while they were shooting at night. I
saw Mr. Woods, the marshal, after that night and talked to him about it ; he said
he didn't do any of the shooting, but admitted to me he was there. Says I why didn't
you stop it ; he said he couldn't do it. I stated to him that if we had no protection
of the officers of the law we were in a bad fix.

Qu. l-.th. You speak of the military companies in Hernando. W T hat sort of uniforms
did that company wear; did they have military caps and military suits?-- Ans. I
don't think there was any military company there, but just political ; they drilled at
moonshine. Mr. Newberry suid he was out there and saw them drilling. They wore
a kind of a hat that nobody else did'nt wear a kind of a white hat they called the
campaign hat.

This heroic method of "preventing disturbances and violations of
law, etc.," in campaign time was not confined to De Soto County. It
flourished elsewhere in the district

J. E. Drake, a United States supervisor, testified (Record, p. 445) :

Q. What box do you vote at ? A. The Sherman box, in Tallahatchie County.

Q. Is the majority of voters at that box colored or white? A. The majority is
white, I think, but we have very near as many colored as white.

Q. Was there any shooting into the voters at that box on the last election ? A.
Yes, sir.

Q. What position did you occuy there that day ? A. U. S. supervisor.

Q. Please explain the shooting you speak of. A. Well, there was about 20 or 30
shots. The men were on a bluft' a'little above the house, and the voters were about
30 or 40 feet from the house, and the shooting was dune in the direction of the men,
and one of the balls fell right in front of one of the voters.

Q. Were they white or colored men who did the shooting? A. They were white
men ; hid back on the bluff.

Q. How many times did they shoot different times? A. Twenty or 30 different
times they shot.

In Abbeville, La Fayette County, the shooting was postponed until
the polls had closed, and seems to have had some bearing upon the
count.

We quote from the testimony of J. \V. Hines, a United States super-
visor (Record, pp. 624-5) :

Q. Where do you live, Mr. Hines? A. Live in La Fayette County, Abbeyville, Miss
Q. Did you vote at the Abbeyville box at the last Nov. election ? A. Y-s, sir.
Q. What position did you hold at that election ? A. I was U. S. supervisor.
Q. Was there any disturbance at the election at Abbeyville or not ? A. Yes, sir.
Q. Please begin now and state what occurred that day. A. Everything seemed to
meve oft smoothly until after we closed the polls ; I don't know, suppose it was one

CHALMEES VS. MOKGAN. 335

or two hours ; we were slow counting ; there was some firing of pistols or guns near
the place where we were holding the election. I asked if the officers of the polls
looked into the matter and arrested the parties; I don't know whether they did or
not. A few minutes after there were 3 or 4 shots fired through the window and the
judge and cl-rk were seemed to be terribly frightened. I must confess for a moment
I was frightened myself. I never hid nuder no book or anything. I said it was a
premeditated thing, and they refused to count there; said they were afraid some of
us would get shot, and they said let us move to some other place, and I said all right,
and they moved to A. A. Huston & Sous 7 store, and there we finished the counting.
That was the only disturbance, and I have a book here I would like to read and let
it go along with my statement.

Q. Did you keep a list of the men who offered their votes there that day f A. Yes,
sir.

Q. How many offered to vote that day ? A. 268.

Q. Were any of those voters refused, and if so, how many ? A. Well, there was 40
colored votes refused and 3 white votes.

Q. Do you know whether any of the colored men whose votes were refused were
registered and duly qualified electors? A. I do, sir; I went to Oxford myself a few
days before the election. I think it was a week; can't say exactly how long. I told
the colored people of that country that my beat and College Hill beat to meet nje at
Oxford and I would go and see that they were properly registered. I think there
was 18 that appeared on my book here that was there, and I saw them register, that
was scratched, that came up to vote, and their names were scratched.

Q. Are you positive that there were only 216 votes polled there that day? A. lam.

Q. How many votes were counted out when the count was finished ? A. 247.

Q. Did you or not, on the list you kept, designate by any mark the names of those
who were refused the privilege of voting ? A. Yes, sir ; when they appeared scratched
on rhe book, or when they hadn't had a transfer on our beat, I marked it all the way
through, Win. Long, colored, scratched, and so on; you will find it all the way through
there so on through scratched ; you will find it all the way through there.

Q. I find in this book a statement written out substantially the same as that which
you have just made to which your name is signed ; state whether you write and signed
that statement. A. I did.

Q. I ask that that book be marked Exhibit A, and be made a part of the witness'
deposition.

Q. Will you state where, in the excitement caused by the firing of the shots on the
room and the consequent moving to another place, was there any opportunity for
putting other tickets in the ballot-box other than those voted? A. Well, yes, sir;
let me go behind the firing there was made that day been handed in the Democratic
judges, and I supposing something, and I was holding the thing down pretty close, I
wouldn't leave the box ; but it came in a different way than what I expected. There
was no shelter on the outside by which bystanders could protect themselves from the
rain, and we had the door closed, and they ran against the door, and there was 10 or
15 which crowded around the tab1e,and there were parties waiting and knowing that
thos* shots were going to be fired, I think, and the box were turned over, them that
had been counted and those that were on the floor; they were all thrown together,
therefore we couldn't; I remarked, "I say, judge, this is an illegal thing; we have
got the votes mixed." There were those that had been counted, and those that had
not been conntei , and we went up to A. A. Houston & Sons to finish the count, and
I don't think there was any opportunity while moving to stuff the box; if there was
anything done it was done when the box was turned over.

At Oxford the weapon of peaceful warfare was a cannon, which
seems to have been used for the purposes of warning in advance against
" disturbances, violations of law, riot, etc."

M. A. Montgomery, a lawyer, residing in Oxford, says (Record,
p. 593) :

Q. Did you hear any cannon fired near the polls before the election and during the
election ; if so, state all about that as near as you can ? A. On the evening before the
election a cannon stood on South street, some distance south of the court house and
where the boxes were located ballot-boxes. The cannon was there.

Q. Was there any firing done there ? A. The cannon was fired on the evening before
the election repeatedly. The cannon was removed to the southeast, below the stores,
at the southeast of the court-house, because, as I am informed, the firing of the cannon
at the place it was before had jarred the business houses and broken some window-light*
out. Early on the morning of the election the firing was heard, and continued at in-
tervals until much later in the day.

336 CHALMEKS VS. MORGAN.

Q. Did yon ever Bee any printed statements from Congressman John M. Allen as to
why the Democrats had fired cannon on election day ; if so, please state what it was ?
A. I have heard several persons say that they had seen a printed statement from Mr.
Allen to the effect that the cannon is tired on mornings of election in order to give
warning to the niggers that there is going to he a fair election.

Not to indulge in further comment on this subject, it will be manifest
to any fair-minded man who will read the testimony in this case, that
measures were resorted to in many places in the Second Congressional
district of Mississippi at the election in question, to terrorize the colored
voters and to keep them from the polls, and the record abounds in proof
that many of the colored men were prevented by fear from attempting
to exercise their right of suffrage. Nor is evidence wanting that this
is a favorite method of long standing of Ci shutting down upon "the
Republican voters of this district, which up until 1876, and prior to the
inauguration of the " shotgun policy " was a Republican district by a
large majority.

The claim that the military company at Hernando was organized to
promote the peace is, of course, too transparent to fool even the most
credulous. The possibility that such company, openly proclaimed to be
constituted of the adherents of one political party only, and styling them-
selves "un terrified" and "determined," could exist under authority of,
and be armed by, the State of Mississippi is a disgrace to that State.

Tour committee find that there were other methods pursued in the
Second Congressional district of Mississippi " to shut down" upon the
Republican voters, which were in contravention of law. Among these
were :

The constitution of partisan election boards having no members other
than Democrats.

The appointment in many cases of parties on such boards to repre-
sent the Republicans who, by reason of ignorance and illiteracy, were
not " competent and suitable men."

The unlawful removal of ballot boxes from the polling-places and
from the view of the United States supervisors.

The illegal erasure from the registration list of duly qualified and
registered voters, and the refusal to permit them to vote.

The stealing of ballot-boxes.

The election laws of Mississippi, in so far as it is necessary to quote
from them for present purposes, prescribe (Code of 1880) :

SEC. 105. The hooks of registration of the electors of the several election districts
in each county and the poll-books as heretofore made out shall be delivered by the
county board of registration in each county, it not already done, to the clerk of the
circuit court of the county, who shall carefully preserve them as records of his office,
and the poll-books shall be delivered in time for every election to the commissioners
of election, and after the election shall be returned to said clerk. The clerk of the
circuit court of each county shall register on the registration books of the election
district of the residence of such person any one entitled to be registered as an elector,
on his appearing before him and taking and subscribing the oath required by Article
7 and section 3 of the constitution of this State, and printed at the top of the pages
of the registration books, which subscription of the oath aforesaid shall be by the
person writing his name or mark in the proper column of said book.

SEC. 121. Two months before any general election and any election of Represeuta
lives in Congress, and any election of elector of President and Vice-Presideut of the
United States, the governor and lieutenant-governor, or president of the senate if
the lieutenant-governor is performing the duties of governor, or if there is no lieuteu-
ant-governer, and the secretary of state, or a majority of such officers, shall appoint
in each county in this State " commissioners of election," to consist of three competent
and suitable men, who shall not all be of the same political party, if such men. of dif-

CHALMERS VS. MORGAN. 337

fcrent political parties can conveniently be had in the county, and who, for good
cause, may be removed in the same manner as they are appointed. Before acting,
the said commissioners shall severally take the oath of office prescribed by the con-
stitution and iile in the office of the chancery clerk of the county, \vlio shall preserve
such oaths. While engaged in their duties the said commissioners shall be conser-
vators of the peace, with all the powers and duties of such, in the county in which
they are acting. They shall continue in office for one year, unless removed, and until
successors are appointed.

SEC. 124. On the last Monday of October preceding a general election and five days
before any other, the commissioners of election shall meet at the office of the clerk of
the circuit court of the county and carefully revise the registration books of the county
and the poll-books of registration of the several precincts, and shall erase therefrom
the names of all persons improperly thereon, or who have died, removed, or become
disqualified as electors from any cause, and shall register the names of all persons ille-
gally denied. All complaint of a denial of registration may be made to, and be heard
and decided by, the commissioners of elections, who shall cause the books of registra-
tion to be corrected, if necessary, so as to show the names of all qualified electors in
the county, and such books shall be prima facie evidence of the names and number
of the qualified electors of the county.

SEC. 125. The clork of the circuit court shall attend such commissioners, if so re-
quested, and shall furnish them the books of registration and the poll-books, and shall
render them all needed assistance of which he is capable in the performance of the
duties in revising their lists of qualified electors.

Section 133 is as follows:

Prior to any election the said commissioners of election shall appoint three persons
for each election precinct to be inspectors of the election, who shall not all be of the
same political party, if suitable persons of different parties are to be had in the elec-
tion district, and if any person appointed shall fail to attend and serve the inspectors
present, if air:, may designate on to fill his place, and if such commissioners of elec-
tion shall fail to make such appointment, and in case if failure of all those appointed
to attend, any three qualified electors present when the polls shall be opened may act
as inspectors.

Section 136 is in the following words:

All elections by the people of this State shall be by ballot. The poll shall be open
by nine o'clock in the morning and be kept open until six o'clock in the evening, and
no longer ; and every person entitled to vote shall deliver to one of the inspectors, in
the presence of the others, a ticket or scroll of paper on which shall be written or
printed the names of the persons for whom he intends to vote, which ticket shall be
put in the ballot-box, and at the same time the clerks shall take down on separate
lists the name of every person voting ; and when the election shall be closed the in-
spectors shall publicly open the box and number the ballots, at the same time reading
aloud the names of the persons voted for, wnich shall be taken down by said clerks
in the presence of the inspectors; and if there should be two or more tickets rolled
up together, or if any ticket shall contain the names of more persons for office than
such elector had a right to vote for, such ballot shall not be counted.

At Lamar, Horn Lake, Nesbitt, Eudora, Olive Branch, College
Hill, Looxahoma, and Strayhorn, the election machinery was exclu-
sively in the hands of the Democrats, in express violation of the law
which required the inspectors to be " suitable persons of different par-
ties ; " or, where there was any pretense made of appointing a Repub-
lican the appointee was illiterate and disqualified to perform the duties
of his office. And the evidence goes to show that such appointees were
expressly selected because of their incompetency.

The law of Congress on this subject is well settled :

The appointment of the managers of election, in fairness and common decency,
should be made from opposite political parties. A refusal to do so in the face of a
statute directing it to be done may in some cases be evidence of fraud, and it might
form an important link in a chain of circumstances tending to establish a conspiracy.
(Buchanan vs. Manning, Calkins .Report Dig. Elec. Cases, 1860-1882, page ^97.)

In many places the ballot-boxes were removed from the presence of

the United Stutes supervisor, against his will and without pretense of

justification or excuse. Every presumption arises against those guilty

of such open and express violations of a statute pass'ed i:i Uie

B. Mis. 137 22

338 CHALMERS VS MORGAN.

of pure elections. And where, as in this case, the practice is so com-
mon, it is hard to avoid the conclusion that it is the result of concert for
a fraudulent purpose.

It is contended upon the part of contestee that a custom prevails in
many of the voting places in his district, to adjourn for dinner, and
that it is customary to carry off the box at such adjournment. But
such custom seems always to involve the taking of the box from the
oversight of the United States supervisor, and it is a bad one and not
to be tolerated. In many instances this excuse can not be urged in
palliation of the offense against the law.

For example : J. C. Clifton was the United States supervisor at Tay-
lor's box in Tate County. He testifies (Record, p. 190) that the box
was carried off from the voting place.

It was carried 2 or 3 miles, to tbe house of W. S. Bailey. I followed the box ;
Baily and Piter drove very fast, and every time I would gain on them Baily's step-
son would halloo. I overtook the bnggy about a half mile from his house, and rode
along with it from there to the house. When I overtook the buggy I asked them
what in the hell or what iu the thunder are you driving so fast ? I won't be positive,
but it seemed to me that Piter was trying to hide something behind his coat ; I don't
know what it was. On arriving at his house he took his horse out and took him to
the barn, where he remained long enough to have fed a dozen horses. During this
time the step-sou aud I remained with the box, which was still in the buggy. It was
Baily who went to the barn ; Piter had gone home ; Baily staid in the house and got
inside of his yard with the box, and I was with him. He turned around to me and
says, I haven't invited you here; I don't want you to come any further. I then said
to him it was my sworn duty to watch the box. He then said he would put the box
down in bis passage or porch, whatever you might call it, and I said, "Then I can
stand at the gate and watch it;" then, as he started on into his house, he turned
round to me and said, "When I get through eating, you can come round the back
way, aud I will give yon something to eat."

This box was subsequently stolen and no returns were made of the
election at Taylor's, where the evidence indicates that there was a large
Republican majority. The truth is that the stealing of the box is itself
persuasive proof that this was the fact.

As to the theft of the box, Clifton says (Record, p. 191):

The box was stolen, but before the box was stolen they came with a light, which
was a very small brass lamp. W. S. Baily ordered the peace officers to clear the room
and they would proceed to count. I said to W. S. Baily, "That is not lawful; the
vote should be counted publicly;" then I proceeded to read the law, and W. S. Baily
took the lamp and went about ten feet from the box, set the lamp down on a bench,
and got between the light and box, and then when I commenced reading they blew
the light out. That was when the box was stolen, and T. A. Hall was sitting by the
box when it was stolen.

W. S. Bailey subsequently, within less than a month, shot the super-
visor (Clifton) because of the difficulty which grew out of the carrying
away of this box.

The only reply made by the contestee with respect to this unblushing
outrage on decency is this:

In contestant's notice of contest no mention is made of this box, and no allusion to
any fraud or irregularity as it appears in the pleadings. The only witness touching
the matter was examined after contestant's time expired, to wit, February 22 (R., p.
lyl), and on a day not named in any notice. If the box was stolen, then the actual
vote was open to proof. If this could not be ascertained, then the box, not the county,
should be rejected.

It is to be noted that contestee's counsel attended and cross-examined
this witness. Aside from any question as to the value in votes of an elec-
tion misconducted in this way, it would have been refreshing to have
had some explanation of why such things are possible in one of the
States of the United States,

CHALMERS VS. -MORGAN. 339

Sufficient has been said to show how the United States supervisor's
law was violated and the reasons for it. It may be added that the box
was carried off at each of the following precincts: Heruando No. 1,
Hernando No. 2, Loves, Olive Branch, Senatobia, Sherrods.

The importance to the people of the whole country of a proper observ-
ance of the provisions of the Federal statutes with respect to elections
has repeatedly been affirmed by Congress and by election committees,
both Eepublican and Democratic.

In the Forty-fifth Congress (Democratic), in the case of Dean vs.
Fields, the following was said :

Congress, in pursuance of its constitutional power to make regulations as to the
times, places, and manner of holding elections for Representatives in Congress, or to
alter State regulations on the subjects, enacted the foregoing provisions. They must
be held valid and binding on all the States. From the enacting of these provisions
(February 28, 1871) they became a part of the election law of the State of Massaclm-
setts, overriding all opposing State statutes made or to be made by the State, and the
passage of the State law of April 20, 1876, authorizing an aldermajiic count so far as
it provided for the taking of the final count of the votes for the Representatives in
Congress out of the supervision and scrutiny of the United States supervisors of
election was an evasion, if not a nullification, of the federal law.

After Congress had provided for the appointment of two supervisors of election for
each voting place, and had required such officers to count the votes for Representa-
tive in Congress and to remain with the ballot-boxes until the count was wholly com-
pleted and the certificates made out, it is not competent for any State to provide
another board of canvassers who may take possession of the ballot-boxes, exclude
the federal officers and secretly count the vote and declare a different result. As the
counting of the votes is now admitted to be the most important function to be per-
formed in reference to an election, laws relating to this part of the election machin-
ery must be strictly construed and rigidly enforced. The count made by the alder-
men was made in secret three or four days after the election, partly in the night
time, and the United States supervisors and all other persons, except the three alder-
men, were excluded from the room and were not allowed to see what was being done.
A count under such circumstances is in derogation of the acts of Congress and of no
validity wuatever. (Dig. El. Cases 1876 to 1880, page 194.)

The same doctrine was held in the Forty-seventh Congress, which
was Republican, in the case of Buchanan vs. Manning, as follows :

If it be shown that there was an unlawful interference -with the United States
supervisors of election, whereby they were prevented from discharging duties which
are committed to their hands by the law of Congress, it would undoubtedly be our
duty to set aside the election at such precincts. The law of Congress in respect to
Congressional elections must be obeyed by the people, and nothing will tend so much
to bring this Government into disgrace as to allow its will to be nullified and its of-
ficers overawed and prevented from performing their duty.

One of the most sacred duties which this House owes to the people is to see to it
that its laws are enforced and obeyed. The supervisors of election are the eyes of
this House. Through them it can scrutinize every election, frauds of every kind can
be detected, and ballot-box stuffing can be stamped out. (Dig. El. Cases, 1880 to
1882, page2*)0.)

Still another method of "shutting down upon" Republicans in the
Second Congressional district of Mississippi, is illustrated by what took
place at Stewart's box in De Soto County.

This testimony is from the mouth of one of contestee's witnesses, R.
T. Lamb, who was one of the judges of election at that box (Record, p.
682):

Int. 13. What was proposed to be done with the box after the counting out of the bal-
lots and the result ascertained ? Ans. There were various propositions made as to who
should carry the box to Heruaudo, and no one seemed to want to be bothered with it
any longer, as the election was over and the ballots had all been counted, so there was
a proposition made that Adam Rice should bring the box to Hernando, as he had been
anxious to be with it all the while. Ho refused to have anything more to do with it,
and said that he was satisfied, and the clerks went oif and left the box sitting on the
fable in the room in which Peebles and myself slept that night.

340 CHALMERS VS. MORGAN.

Int. 14. What became of that box? Ans. During the night we heard some one in
the room, and an alarm was given and we got up aud struck alight to see who it was
or what it was, and we found the ballot-box gone.

Int. 15. Please state the result of the election at that box. Ans. My recollection is
that it gave the Republicans 73 majority.

The neatness aud dispatch with which a ballot-box containing a ma-
jority of Republican votes can be stolen, without wrangle or bloodshed,
was thus demonstrated. It is hardly necessary to say that no returns
were made from that voting place.

Still another peaceable method of " shutting down " upon Republican
voters, as practiced in the Second Congressional district of Mississippi,
is to have no election at polls where the Republicans are likely to be in
the majority. An example of how this can be done is found in what
took place at Early Grove box, in Marshall County.

The witness is Dr. A. M. Lyle, who says (Record, p. 187) :

lam fifty-five years old; I am a practicing physician; I have resided in Early
Grove thirty-three years.

No election was held at the Early Grove precinct in November, 1888. The judges
who were appointed to hold the election would not open the box to receive the votes,
under the pretense that no justice was present to qualify them. I pointed out aud
read from the code the sections empowering one of the judges (in the absence of any
one to administer an oath) competent to administer oath, to quality the others and
then to be qualified himself by any one of those so qualified to act. This question
was debated until about 1 p. m., when the judges, one by one, left the room without
informing the electors that no votes would be received, leaving the electors powerless
under the law to open the polls.

There were fully one hundred voters present to cast their votes for James R. Chal-
mers, for Congress, seventy colored voters, atid about thirty whites.

There is a majority anti-Democratic at this box when fairly counted.

For the last ten years the custom of the Eaily Grove box has been to open the polls
when the chances indicated a Democratic majority, or the majority would be counted
for that party, and if the indications pointed to a majority being cast against the
Democratic, not to open the polls; or if opon, and counted, and the majority found
to be anti-Democratic, not to send the box up to the county court-house.

But even when elections are held, votes may be so manipulated as to
control the majority for the party desired, irrespective of the party for
whom the votes may have been cast. This is illustrated by what took
place at Batesville, in Panola County.

There the United States supervisor was a lawyer by the name of L.
B. Lester. According to his testimony (and there is no contradiction
of it) the election was conducted in the most fraudulent manner. Men
entitled to vote were refused upon the ground that their names were
not on the registration list, when in point of fact they had been on such
list and illegally stricken therefrom. But, in addition, the box was so
placed by the election officers as to prevent the supervisor from seeing
whether tickets were properly placed therein. The tickets were manip-
ulated by one T. J. Mabry, one of the judges of the election, and in
such a manner as to change a Republican majority into a Democratic.

Lester's testimony is important, and we quote :

Q. Will you please state your position in regard to the ballot-box and the other of-
ficers of the election on that day ? State whether there was any change made in the
position of the box and of the officers during the day. State fully. A. There was a
change made at noon, sir. Jn the morning 1 had a position where I could see every-
thing. By the change made at noon I could see nothing comparatively.

Q. Which one of the judges of election on that day received the tickets from the
hands of the voters? A. A colored man by the name of Dailey Knox.

Q. Which one of the judges placed the tickets in the box? A. Mr. T. J. Mabry.

<;. What were the politics, respectively, of those two men? A. I couldn't tell yoq
Mr. Malay's politic?, sir; he was a stranger in our county.

CHALMERS VS. MORGAN. 341

Q. Do you know which party he was representing there that day as inspector of the
election ? A. Democratic party.

Q. When the transfer was made of the tickets from the hands of Dailey Knox, the
negro who received the tickets, into the hands T. J. Mabry, who deposited the tickets
in the box, could you, or not, see the hands of those two persons from your position ?
A. I could see the tickets pass from Knox to Mabry.

Q. All day? A. Yes, sir; all day.

Q. Could you see Mabry's hand, or not, all the time while the ticket was being
transferred in it from Kuox's hand to the box? A. No, sir.

Q. Did you notice anything that day which led you to believe there was any change
of tickets being made after they left Knox's hands before being deposited ? A. All
the indications pointed to something, sir ; I couldn't tell what. He had an opportu-
nity of changing them, because he put his hands right behind the box every time.

Q. At whose suggestion was the change in the position of the officers of the elec-
tion and of the furniture in the room where the election was being held made?
A. Made by Mr. Stone, one of the inspectors of election.

Q. What were the politics of Mr. Stone? A. Democrat.

Q. How often has Mr Stone been an inspector of election there? A. Well, sir, I
don't know that he's been more than about once or twice before; don't remember,
though

Q. Did you notice whether there was anything wrong with the registration booka
that day; if so, state what? A. Well, there was about 60 names scratched off the
book, sir, that applied to vote.

y. Did you know any of the persons whose names were scratched off? A. Yes, sir ;
several of them.

Q. Did you know whether they were legally qualified voters, except as to registra-
tion, of the Batesville precinct ? A. All those that I know, sir, had been voting
there all the time for the last eight or ten years.

Q. What was the reason given why they were refused to vote? A. Because their
names were g-'-ratched on the poll-book, sir.

Q. Was it or not stated that some of them were dead, marked dead when they
came up? A. There was sixteen marked dead on the poll-book, sir, that applied.

Q. Were any of those persons marked dead well known in and around Batesville
or not? A. Yes, sir; there was some old colored men that's been living there all their
lives.

Q. Did you, or not, see the books, or merely hear the judge's remark their names
were marked? A. I took the judge's word for it. He called them out. I couldn't
see the books at all.

Q. What was the relative number of white and colored men voting there that
day? A. Nearly four to one, sir.

Q. In whose favor ? A. Colored.

Q. There has been a good deal of testimony to the effect that a great many negroes
have left that part of Panola County in the vicinity of Batesville. Do you know
anything of that ? A. Yes, sir ; there's been a good many left there in the last three
or four years, but a good many come in too, sir.

Q. Have you heard any remark made by any man in a position to know whereof he
spoke in regard to the number of colored people who had moved in there ?

(Objected to on the ground that the question calls for an answer founded upon
hearsay. )

A. Well, Captain Knox told me he's our assessor, sir that there were about as
many colored voters now as there were three or four years ago.

Q. Is it or not a fact that the assessor and sheriff, in his capacity as tax-collector,
would be the best witnesses as to the number of colored voters in'that county ? A.
I should think so, sir ; they have the list.

This testimony is sufficient to give rise to a strong presumption that
fraud was committed at the Batesville box. But presumption ripens
into certainty when we come to consider the testimony of fl; C. Wor-
sham, which is as follows (Record, p. 472) :

Q. What is your name, your age, and your occupation ? A. H. C. Worsham ; age,
33 years ; occupation, farmer.

Q. Where do you reside ? A My home is in Ripley, Tippah County, Miss.

Q. Did you ever see a man who held the last election at Batesville any time ; if so,
who was he and where did you see him ? A. I saw one Mr. T. J. Mabry in Memphis
on the llth day of January.

Q. Did you have any conversation with him about the election at Batesville ? A.
I did.

Q. Who was with you when you had this conversation with him ? A. Mr. Ash
Thomas, from Benton County, Miss., and Mr. Till Williams, from Tippah County.

342 CHALMERS VS. MORGAN.

Q. Where did the conversation occur F A. It occurred in the back room of a saloon
on Second street, if I am not mistaken about that, that Mr. Mabry had been running
and that morning had sold out.

Q. What city was that f A. Memphis, Teun.

Q. How canie you to go there? A. You told me to go there ; that you believed he
was one of the judges of the election at Batesville and believed I could get it out of
him, if I would go there and approach him right and get a confession that he stuffed
the ballot-box at Batesville.

Q. You weut there, then, at my instance, to act as a detective? A. Yes, sir.

Q. State all that occurred. A. We went to the house and the front door was closed ;
we went around and in at the side door; told him I wanted a drink of whisky; be said
he'd sold out and could't sell whisky. I told him I believed he was a Mississippi
man ; he said he was. Wo brought up the question of what the Aliens were doing. I
told him I didn't think the Aliens were doing much; that they had done but one real
good thing that was in defeating Stevens in the nomination for Congressman, giving
Judge Morgan the nomination; that I thought the Lines did that, and I says to him,
"It's not so bad in our county as it is iu Pauola County; there are but few negroes
there and some white people vote the Republican ticket and we don't have to stuff
the ballot-box, but we can do it if necessary;" and then be told me he was one of
the judges at that election himself, and I asked him how he managed it. He said,
before dinner he couldn't work it right, couldn't operate it well, Mr. Lester watched
him too close; but after dinner he put the box, he said, back in the corner and got
the books between he and Lester, and then he changed the votes to suit himself; and
during the conversation I remarks to him : "That box is largely Eepublican, isn't
it?" He says, "Yes, sir." Well, I then asked him how much majority Judge Mor-
gan got there? I disremember what he said to that; I think, though, he said about
200 or more, and just at that time Mr. Williams says to him, he says, ''If the elec-
tion had been fair there, General Chalmers' majority would have been fully 200, would
it not ?" He said, " Oh, yes."

Worshatn's testimony is fully corrobated by that of J. A. Thomas,
one of the parties with him when he visited Mabry. Thomas's testi-
mony, on page 166 of tbe Kecord, is this :

Ques. No. 1. Mr. Thomas, where do you reside? Ans. Four miles east of Michigan
City, in Benton Co.

Ques. No. 2. When were you in Memphis last, Mr. Thomas? Ans. About the elev-
enth and twelfth of January last.

Ques. 3. Did you meet H. C. Worsham, Til. Williams, and Gen. Chalmers? Aus.
Yes, sir; I did.

Ques. No. 4. Where did you see those parties ? Ans. At various places in Memphis.

Ques. No. 5. On what days did you remain in Memphis, Mr. Thomas ? Ans. The
eleventh and twelfth.

Ques. No. 6. I will ask you, Mr. Thomas, to state, as near as you can, where you
and Mr. Worsham and Til. Williams went on the eleventh of January last in Mem-
phis ; who we saw, and relate the conversation, as near as you can. Ans. Well, we
weut aboard ot 2 or 3 steam-boats and talked about various things.

Qnes. No. 7. Do you remember the conversation that occurred between H. C. Wor-
sha^u and Mr. Mabry ? Ans. Yes; I remember the conversation that occurred the
conversation in the port.

Ques. No. 8. I will ask you, Mr. Thomas, to state what that conversation was, as
near as you can. Ans. I went with Mr. Worsham and Mr. Williams to Mr. Mabry's
place of business, and the front door was closed, and we went around to the rear of
his place of business. There were two young men in the room. Mr. Worsham called
for Mr. Mabry. One of the young men answered to that name, and Mr. Worsham in-
troduced himself as a Mississippian ; also Mr. Williams and myself. Mr. Mabry asked
Mr. Worsham asked Mr. Mabry how the alliance was progressing in our section of
county. Mr. Worsham answered and said it was getting along very well; it had
done one good thing that it had helped Morgan to defeat Stevens for the nomination.
Mr. Mabry said he helped the election at Batesville, and that he had been censured
for the management of the box ; and some one of the party, either Mr. Worsham or
Mr. Williams one, asked him how the result of the election was there at Batesville ;
and he said it was 200 majority for Morgan, and it would have been 200 for Chal-
mers if he had not lixed it ; and Mr. Worsham or Mr. Williams one asked him how he
managed to fix ; he said they received the votes through a window ; the supervisors
were outside of the window, and he moved back in the corner so that the supervisor
on the outside could not see him ; that there was one colored man inside the room ;
and he notified the colored man that he was managing the business, and for the col-
ored man to attend to his business, that he was managing that business ; and Mr.

CHALMERS VS, MORGAN. 343

Williams asked Mr. Mabry if be understood him to say that he managed to give
Morgan 200 majority when it otherwise would have been '^00 for Chalmers ; and he
said yes, that is jnst what ho done. This is about all I remember that occuircd about
Morgan and Chalmers in that conversation.

If the testimony of Lester, Worsham, and Williams is to be believed,
a very practicable and effective method of "shutt ing down upon" the
Republicans at the Batesville box was put into execution, and with
profitable results.

Each of these witnesses was rigidly cross-examined, but without
result as to the truthfulness of his testimony.

If these witnesses were not telling the truth they might easily have
been contradicted. No attempt was made to contradict them. On the
contrary, the serious charge made by their evidence is met only by
abuse of Worsham by contestee's counsel, who calls him a "buck," and
charges him with certain supposed-to-be disreputable things. (Con-
t^stee's brief, pp. 80-81.) But abuse is not argument, much less evidence,
and fails here, as it always fails, to meet the issue.

Quite as disgraceful as the action of Mabry, if not more so, is the
mean assertion of contestee's counsel, that because he (counsel) failed
to find Mabry in Memphis (and we have nothing but his unsworn state-
ment for that),

The contestant in PERSON placed a man at a saloon on Second street, near Union,
to personate T. J. Mabry and then sent his man WORSHAM TO WORK UP THE CASE,
AND HE DID so. (Contestee's brief, p. 86.)

The italics and capitals are copied from contestee's brief. They
were not needed to add emphasis to the assertion. The couteinutible
meanness of it would have made it impossible for any fair-minded man
to have overlooked it.

At East Holly Springs, Marshall County, the United States super-
visor testifies from a list that he kept that 201 Republican votes were
cast, while the returns show only 93. He further testifies that he saw
one of the judges

shake his sleeves and drop tickets out of his sleeve. I couldn't see what he done with
the tickets; he got them away in such a way I couldn't see what he done with them;
he had a pair of big cuffs on, and they rattled down his sleeve.

This testimony is uncoutradicted.

Your committee have no doubt as to what the judge did with the
tickets dropped from his sleeve.

At Spriugport, in Panola County, where the person appointed Repub-
lican inspector could neither read nor write, Manuel Jones testified
(Record, p. 444) as follows :

Q. Were you at the Springport box at the last election for Congressman ? A. Yes,
sir; I was there.

Q. What ticket did yon try to vote? A. Republican ticket.

Q. State now what you saw done with your ticket when yon handed it in at the
window ? A. Well, when I handed in the ticket at the window he took my ticket in
his right hand he was a white man and he was standing between me and the box,
the box was behind him, and when he took my ticket and turned around and put his
right hand in his pocket until he got most to the box, and he put his left hand into
his left pocket and then brought his left hand up to his right hand, and then with
his right hand put a ticket in the box.

Q. Was anything said at the time by anyone present ? A. There was a man stand-
ing behind me Wtio said, " There, he changed that ticket sure ; that makes the fifth
that has been changed to-day." I didn't think he had made the exchange until the
fellow said that word, and then I watched after that to see if he would change an-
other one, and he changed anothejroue in the same way.

This testimony is uucontradicted.

344 CHALMERS VS. MORGAN.

There is no doubt in the minds of your committee, from the evidence
presented in tliis record, tbat immeii.se frauds were practiced in this Con-
gressional district by the simple device of unlawfully striking names
from the registry list, and then refusing to receive votes because of
alleged want of registration.

It would be tedious to go through the election districts in detail and
to quote theuncontradicted evidence of witnesses to the effect that they
were duly registered prior to election day, but unregistered on that day.

A sample illustration of this sort of fraud is to be found in the evi-
dence as to the South Oxford box, in La Fayette County.

L. N. Word, who had been appointed United States supervisor for
the South Oxford box, was in the office of the circuit clerk, a Democrat
and the custodian of the registration and poll-books, on the Saturday
before the election of Tuesday, and witnessed the following scene : The
poll-books were being delivered to messengers to be carried to the
various polling places in tne county. Lena S. Dillard had charge of the
dispatching of the books and boxes and selected the messengers. Dur-
ing this time Word was looking over the various poll-books to see if his
own and several of his neighbors' names were properly registered, and
found everything all right. He heard Dillard say that " we (the Demo-
cratic boys) will give Morgan 4,000 majority over Chalmers."

Word was at the South Oxford box on the day of the election, and
170 colored Republicans whom he knew to have beeu voting there for
a long time and many of whose names he had seen properly registered
on the poll books on the Saturday before, were not allowed to vote be-
cause their names had been scratched off. The witness himself was not
allowed to vote and was told he was marked dead.

The testimony ot Word is material and we therefore quote it at length :

Q Where do you live? A. In La Fayette Couuty, in the State of Miss., in the
Second Congressional district.

Q. The post-office address is Oxford ? A. Oxford, Miss., sir.

Q. How long have you lived there? A. I was born and raised there, sir.

Q. What position did you occupy at the last election at Oxford ? A. U. S. super-
visor.

Q. I believe there are two boxes there, are there not? A. Yes, sir; north and south.

Q. Of which box were you supervisor? A. South box.

Q. Did you vote that day ? A. No, sir.

Q. Why ? A. My name bad been erased on the poll-book.

Q. State whether or not you had beeu properly registered. A. Yes, sir ; I had.

Q. State whether you had examined the poll-book previous to the election to see
wl, ether your name was properly registered and when that examination was made,
if at. all. A. It was iny duty as supervisor to supervise the registration books as
much so as the election ; I had the utmost confidence in the board of registers, at
least the majority of them, and I didn't attend their meetings regularly. I were
there 3 days or a part of It days while they were in session. I think, sir, it was on
Wednesday that I examined the Oxford south book to ascertain if any of my neigh-
bors, their names had been erased, and in looking over that poll-book I came across
my own name, and names of ten or 15 that lived right in my immediate neighborhood
and found them correctly registered. That was on Wednesday before the election on
Tuesday.

Q. State whether any other of the names you examined besides your own on that
Wednesday before the election were found erased on the day of the electiou. A. iVs,
sir; there were a great many names that I can't call the names to memory now, only
a few of them, probably, or 15 that is right in my immediate neighborhood.

Q. State whether or not you know those men to be voters. A. Yes, sir; I do.

Q. And at the south box? A. At the south box.

Q. At Oxford ? A. At Oxford.

Q. How many colored men voted at your box that day T A. Well, sir; there were 8.

Q. How many offered to vote? A. There was I can give you fche round numbers
applied to vote ; it was 405, applied to vote that is whites and colored. Out of that
number there were 214 voted. There was about 112 that applied to vote that their
names could not be found on the poll-book, and the balance that applied, their names
bad been erased.

CHALMERS VS. MORGAN. 345

Q. Was the number, or raiher the nairos, of those who had been erased from the
poll-book colored or white people ? A. They were colored people.

Q. Did yon keep a list of that number of colored people that oifered to vote that
day and were refused f A. Yes, sir; I kept a list of every man that applied, white
and black, and on my book where he was allowed to vote I put it " voted," and where
his name could not be found on the poll-book I put it " his name not found."

Q. When you s;iy his name could not be found, do you mean that no name had ap-
peared there or taat it had been scratched oft? A. No name appeared there at all.

Q. How do you say your name was marked on the list ? A. My name on the poll-
Look it was U. N. Word, audit had been erased.

Q. Isn't it the habit there to mark dead, removed, &c. ? A. Yes, sir.

Q. What did they have on your name? A. Well, I didn't see it dead there, but
they said, L. N. Word, dead.

Q. Who said that? A. It was one of the clerks or judges that had the poll-book.

Q. What became of that poll-book in which you had the names of those who had
applied to vote and were refused? A. We had no dinner that day and supper was
brought in and we were all eager to get something to eat. We were hungry and I
tried to get my book in my pocket. It was too large ; I couldn't get it there. I turned
around and laid it on the mantel board and proceeded to help them set the table.
I suppose I was doing that about 5 or 10 minutes, and thought of my book and looked
around and it was gone.

Q. Have you ever seen that book since ? A. No, sir ; I have not.

Q. Did you make auyeftbrt to secure the information which that book contained ?
A. Yes, sir.

Q. State what they were ? A. There was another supervisor there that set to my
right and he had never acted as supervisor before and they got along very fast and
he couldn't keep up, and he did his copying from my book, and after my book was
missing I applied to him for his book to get a copy, as it corresponded with mine, and
he says that I can't let you have it now, but will let you have it in the morning. I
told him that I would only keep it a few minutes, in order to get a copy from it, and
he said, well, Le'd let me have it in the morning. I told him not to let any one have
it; 1 wanted a copy of it; and he said he would not, and when he left the room he
folded it up and put it in his side vest pocket. Next morning I met him on the street
and asked him for it, and he said some one stole it out of his pocket or he'd lost it;
he didn't know what had become of it.

Q. I don't exactly understand whether you have stated as near as you are able the
number of colored men who applied to vote at the South Oxford box whose names
had been erased? A. Well, if you will give me a pencil I can make the calculation
and state exactly. They were 179 that applied to vote and was rejected.

Q. In my question I ment to ask you whether the men had been refused because
of their names being scratched oft'? A. Yes, sir ; that was the cause.

Q. Did you know any considerable number of the voters ? A. I did, sir ; know the
biggest part of them.

Q. Were they Rep. or Dem. voters ? A. They were Rep. voters, sir.

Q. How long had they been voting there? A. Some of them were old men, some
of them middle-aged, some young men, and it was their first attempt to vote.

Q. Where had they lived? A. They had lived there. Some had just become of age,
and some had been voting there ever since they had been free.

Q. Did you examine any other poll-book in the county ot La Fayette except the
South Oxford book ? A. Yes, sir; I did.

Q. What one ? A. I examined made a partial examination of the Abbeville book.

Q. When ? A. On Saturday before the election on Tuesday.

Q. When was the next time you saw that book and examined it ? A. In the grand-
jury room.

Q. State the difference between the condition of the book, so far as you examined
it, of the Saturday before the election in Nov. and when you examined it after the
election before the grand jury. A. Well, I examined the book from the letter A down
to the letter K. My intention was to ascertain how many names had been erased on
that poll-book from to to Z. I was interrupted by a voter coming in and claiming
that he had voted for a number of year sat Abbeville, and the last time that he had
applied to vote there they said that his name was erased, and I only examined down
to the letter K. I found 200 names had been erased down to that letter.

Q. That was on the Saturday before the election? A. Yes, sir; and after the elec-
tion, when I examined that book before the Federal grand jury, I found 223 names
had been erased down to the letter K.

Q. Have you examined the Oxford bookspoll-books of the two Oxford boxes since
the election? A. I have not, sir.

Q. Why have you not ? A. I applied to the clerk to examine those books and he
stated that he bad received a notice from Gen. Chalmers that he would want those
books and he had decided that he would let no one have them until he wanted them,
and after talking the matter over he agreed to let me examine those books, and well,

346 CHALMERS VS. MORGAN.

he partially agreed. I then applied to him again and asked him his final answer, as
to whether he would let me see those books or not ; he said yes, he reckoned so.
"How long will you be iu examining those books," I told him I was unable to say.
"When do you want to examine those books?" That was last Friday. I told him that
I would want to examine that book the next day, Saturday. He says, "I will be
busy Saturday and I can't go to my office;" well, says I, "Monday or Tuesday or
Wednesday ;" well, he says, " If I am not busy I will go with you to the office." On
Tuesday I was there and asked for him, and he was out at the hotel looking at some
goods. I went to his office; he was not there, and I did not apply any more : I had
called there repeatedly, and I didn't care to go any more.

Q. At what did he say he would be busy? A. He's a merchant there, and he said
he would be busy at the store.

Q. When you went to him on last Friday did you tell him at whose instance you
went there to examine those books ? A. No, sir ; I told him that I come to know
his final answer as to whether he would let me examine those books or not.

Q. Well, at whose instance did you go and make that request? A. I went at the
instance of Gen. Chalmers.

Q. On the Saturday eveuing before the election, when you were examining those
books while you were in the office of the circuit clerk, did you hear any conversation
as to sending out the poll-books to the different precincts? A. Yes, sir.

Q. I'll ask yon, then, to state, fully all that occurred in that conversation. A. Well,
sir. one of the commissioners remarks think it was Hay wood Stockard, that is the
best of my recollection ; Hay wood Stockard said that it seems that they had to go
by the dictation of L. S. Dillard as to who should be messengers in carrying out those
boxes, and he said that there was one there that either had written a note to him
from Abbeville to come and get the box, or they had sent him word, and he said, "Mr.
Dillard come in with Mr. Bucknear," and said that Mr. Bucknear must carry that box,
and while I were in there examining that book, and this colored man come iu to see
if his name was properly registered, Haywood Stockard, one of the commissioners,
went out. They had 4 or 5 congregated in the clerk's office ; he came back with some
cigars in his hand; Mr Dulard and Mr. Bucknear with him; he gave the cigars to
Mr. Both Stowers, and he said that Mr. Bucknear was ready to take that box, and
this old man that came in there to see if his name was properly registered, his name
could not be found, but his son's name could be, and Mr. Bucknear left the room with
the box. Mr. II. J. Stowers said in louder than an ordinary conversation that if this
man didn't get to vote he was going to raise hellbout it ; that was as Mr. Bucknear
was leaving the room with the box ; spoke it louder than an ordinary conversation,
and Mr. Bucknear left with the box. I still stayed at the table, and Mr. Dillard, who
seemed to have been under the influence of whiskey, sat on the table, and said :
"Boys, how much majority must we give Morgan in this county?" No one made
any answer, and he answered it himself and said about 4,000.

Q. Who is L. Dillard? A. He is postmaster at Oxford, Miss.

Q. Is he the same man that sent that famous telegram, " What is the latest ; we
are holding the county"? A. Yes, sir.

Q. Who is R. J St'oweis* A. Editor of the Oxford Globe, a Democratic paper.
That paper has been started, though, in the last, two or three weeks. He is a lawyer
by profession, and a member of the legislature from our county

Q. You say one of the commissioners remarked that Mr. Dillard had control of this,
and whoever h*^ brought in to take the poll-books must have them ? A. Yes, sir; it
seems that he had control of them.

Q. Well, did it seem so in fact? -A. Every time I was there, and there was a box
went out, Mr. Dillard brought in the messenger to carry it. I was present when the
College Hill box was sent out; Mr. Dillard brought the men in to carry that box.

Q. Did you have any conversation with these judges of election through the county
of La Fayette as to the way they proposed to carry things, and did carry them at the
last election ? A. Yes, sir; yes, sir; it was since the election; I were iu the back
room of Brenner & Wallace's store at Oxford, and we were discussing this erasure,
and Mr. McMahou, who was an inspector of the election at College Hill, walked iu ;
I appealed to him, and asked him if he thought it was right. He said that he thought
anything was right. He says, " My God, anything is right to keep ahead of the
negro." " Well," I said, " there was no negro wanted in this canvass." "That don't
make a damn bit of difference; the negroes voted for Chalmers, and, by God, if we
can't stuff 'um out, wee'l shoot 'urn out; we don't give a damn how we get 'urn out,
but we are going to control 'um." That is his words as near exactly as I cau get it ;
that was the meaning of them.

Q. This box, that you speak of, was that the poll-box in which the ballots were
deposited ; were the ballot*) in that box ? A. That was Saturday before the election ;
on Tuesday there was nothing in the boxes except the poll-book, and probably the
Dem. tickets were there ; I don't, know.

Q. When these men came up at the South Oxford box and offered to vote, and were
rejected because their names had been erased, did you ask them any questions in the

CHALMERS VS. MORGAN. 347

presence of the inspectors as to whether they had formerly voted iu recent elections?
A. While I did not ask that question, some of the inspectors did, and they said they
had iu the railroad election in March.

Q. What was that election about ?. A. To vote a subscription to the R. R.

Q. Was that an election. at which all the qualified voters under the laws of the
State were allowed to vote ? A. Yes, sir.

To this testimony must be added that of the two Democratic com-
missioners of election, which proves that the poll-books were all right
when they left their hands, but so many names had been erased when
the books were returned that they were really not the same books.
(Eecord, pp. 631-955.)

Sufficient has been shown to make certain that the election methods
of the Second Congressional district of Mississippi include such as, if
continued, must prove destructive of popular government. Their ex-
istence calls loudly for relief by law, of such a kind as shall secure to
every citizen, without distinction of race or color, his constitutional
right of suffrage.

Notwithstanding these frauds, your committee are of opinion that
upon the case as presented to them on the record, the proof does not
sustain the contestant's claim to an election, nor does it prove that the
contestee was not elected.

Applying to the evidence the well-recognized rules of law heretofore
recognized by your committee, they have in all cases where satisfied that
the integrity of the returns had been successfully impeached, set aside
the returns and recounted the vote in accordance with the evidence.

Pursuing this method, your committee find that the contestant was
not elected.

In two counties of the nine constituting this Congressional district,
in which counties there are twenty -three polling places, the election is
conceded to have been fair and honest. In the remaining seven coun-
ties there are ninety-seven polling places. The validity of the election
is assailed at fifty-five of these, but not successfully, in the opinion of
your committee at to exceed twenty-two or twenty-three.

In Benton County, for example, consisting of eleven polling places,
only two are assailed, to wit, Michigan City and Lamar. No evidence
has been offered which affects the legal presumption of honesty attach-
ing to the nine unassailed boxes. So, again, in Tallahatchie County
there are fourteen boxes, only two of which were assailed. This is
sufficient to show that the evidence as to the assailed boxes can not affect
those unassailed.

In the opinion of your committee, following the rules of law to which
they have already given adherence, the conceded fairness of the election
in Tippah and Union Counties, and the legal presumption in favor of the
unassailed boxes, must save to the sitting member his seat, notwith-
standing the fact that glaring and reprehensible frauds were committed
in connection with his election.

Upon the case as presented, therefore, your committee feel themselves
constrained to recommend the passage of the following resolutions :

Resolved, That James E. Chalmers was not elected a Eepresentative
in the Fifty-first Congress from the second Congressional district of
Mississippi, and is not entitled to a seat therein.

Resolved, That James B. Morgan was elected a Eepresentative in the
Fifty-first Congress from the second Congressional district of Missis-
sippi, and is entitled to retain his seat therein.

VIEWS OF MR. HOUK.

(1) Presumption of correctness of returns.

There can be no "legal presumption in favor of the nnassailed boxes,"
in counties where the election, taken as a whole, was not honest.

(2) Counties to be treated as wholes.

Where it is shown that there was a corrupt conspiracy on the part
of the county officers of election to have a fraudulent election held
throughout the county, and where it is shown that the conspiracy was
carried out in a number of precincts of the county, and there is no evi-
dence in regard to the other precincts, the presumption of legality fails
as to all the boxes, and the whole county should be thrown out.

349

VIEWS OF MR. HOUK.

Mi % . HOUK, from the Committee on Elections, submitted the following

minority report:

It is with regret that I find myself compelled to differ from tny breth-
ren on the Committee of Elections, and I especially regret to dissent
from the able majority eport in this case, because in all except its con-
clusions I most heartily concur, and adopt it as a part of my report.

It begins ae follows :

The Committee on Elections having bad xinder consideration the contested elec-
tion case of James K. Chalmers, contestant, v. James B. Morgan, contestee, from the
Second Congressional district of Mississippi, reports that it is not proven by the
record that thecontestant was elected northat the contestee was not; but it is proven
that the election in question was characterized by frauds disgraceful to our civiliza-
tion, and such as to call for severe animadversion on the part of every honest man.

The election in question was held on the 6th day of November, 1888. The con-
testant was the Republican nominee for Congress, and the contestee the Democratic.
The latter was returned as elected by a plurality of 8,161 votes, a plurality at least
four times as great as his legal plurality.

Again, the report says :

In two counties of the nine constituting this Congressional district, in which
counties there are twenty-three polling places, the election is conceded to have been
fair and honest. In the remaining seven counties there are ninety-seven polling
places. The validity of the election is assailed at fifty-five of these, but not success-
fully, in the opinion of your committee, as to exceed twenty-two or twenty-three.

This statement shows that at twenty-three boxes out of ninety-seven
the committee find fraud enough to reduce the plurality returned for
the contestee at least three-fourths, or, to put it in figures, from 8,161
to 2,040. So that by an examination of one-fourth of the boxes three-
fourths of the returned plurality is wiped out.

I have examined thirty-eight boxes, where I think the validity of the
election is successfully assailed and which wipe out the total returned
majority for the contestee, and give a majority to the contestant. It
is greatly to be regretted that the majority report did not give at least
the names of the boxes which were considered successfully assailed,
and those which they did not, so that the House could decide intelli-
gently about the boxes upon which the majority and minority report
did not agree. A detailed statement of the boxes which I consider
successfully assailed will be hereafter given, together with the testi-
mony as to each box.

351

352 CHALMERS VS. MORGAN.

The majority report then says :

The Second Congressional district of Mississippi consists of nine counties, Bonton,
De Soto, La Fayette, Marshall, Panola, Tallahatchie, Tate, Tippah, and Union. No
question is made as to the honesty of the election in the two last named, and no
reason has been shown why the honest voters thereof should be disfranchised.

With respect to the other seven counties, there is a number of boxes as to which
no testimony was taken, but it may safely be affirmed that in not one of these comi-
ties, taken as a whole, was the election an honest one. Fraud in various forms, in-
cluding intimidation of voters, corrupt manipulation of registration, stuffing and
stealing of ballot-boxes and illegal voting find ample illustration in all of them.

And concludes as follows :

In the opinion of your committee, following the rules of law to which they have
already given adhiTeuco, the conceded fairness of the election in Tippah and Union
Counties, and the legal presumption in favor of the unassailed boxes, must save to
the sitting member his seat, notwithstanding the fact that glaring and reprehensible
frauds were committed in connection with his election.

This contains two startling conclusions, from which I am compelled
to dissent.

First, I can never agree that there can be any " legal presumption
in favor of the unassailed boxes" in the seven counties, where the com-
mittee say : " It may be safely affirmed, that in not one of these coun-
ties, taken as a whole, was the election an honest one."

Second, I can never agree that two little counties, casting only one-
fifth of the vote, shall control seven other counties, casting four- fifths
of the vote. There were cast at this election, 10,795 votes for these
two candidates and of these 3,520 were cast in the two counties, of
Tippah and Union, 16,275 were cast in the other seven counties.

In these seven western counties, where the contest is made, the cou-
testee was returned a plurality of 6.465. Take from this three-fourths
of the returned plurality, to wit, 6,121, which the majority report says
were fraudulently returned, and it leaves to the contestee in these seven
counties a plurality of only 344, where he was returned 6,465. This
practically wipes out those seven counties and gives them no voice in
the election. To permit him to retain his seat on this state of facts is
to sustain the Mississippi plan and allow two little Democratic counties
casting3,520 votes to control the seven Eepublican counties casting 16,275
votes. I can never agree to this and especially in a State where it is
proved that the elections are held by machine rule, which can always
maintain its power if the majority report is right, by permitting fair
elections in a few white counties, and at a few white boxes where they
have a majority, and by utterly corrupting the ballot-boxes where the
majority is against them.

The majority report again says :

Sufficient has been shown to make certain that the election methods of the Second
Congressional district of Mississippi include such as, if continued, must prove de-
structive of popular government. Their existence calls loudly for relief by law, of
such a kind as nhall secure to every citizen, without distinction of race or color, his
constitutional right of suffrag".

In this I most heartily concur. But I insist that before we talk
about making laws to prevent such outrages in the future, we should
deal with the outrages now before us, and put a stop to the further en-
joyment of a seat in Congress obtained by election methods which the
majority say, "if continued must prove destructive of popular govern-
ment.''

Again the report says :

In many places the ballot-boxes were removed from the presence of the United
States supervisor, against his will and without pretence of justification or excuse.

CHALMERS VS. MORGAN.

353.

Every presumption arises against those guilty of such open and express violations
of a statute passed iu the interest of pure elections. And where, as in this cafe, the
practice is so common, it is hard to avoid the conclusion that it is the result of con-
cert for a fraudulent purpose. ^

This is equivalent to saying, if it does not in terms say, they are
morally certain that the contestee was not elected. And the explicit}
declaration here made that " every presumption arises against those
guilty of such open and express violations of the statute passed in the
interest of pure elections," completely answers and overturns the
position of the majority in regard to the presumption of verity as to
the unexamined boxes assumed by them in order to save coutestee his
seat. The law says that in case of conspiracy the testimony is gener-
ally circumstantial. And the supreme court of Mississippi speaking
of circumstantial evidence on a trial for murder, said :

As mathematical certainty is not attainable in such cases, moral certainty is all the
law requires. Even direct testimony, it is said, does not afford grounds of belief of ;i
higher nature. Evidence which supplies the minds of the jury to this extent consti-
tutes full proof of the fact in question before them. This moral certainty ia defim d
by Chief-Justice Shaw, iu his charge to the jury in the Webster case, to be a cer-
taiuty that convinces and directs the understanding and satisfies the reason and
judgments of those who are bound to acfr conscientiously upon it. (James v. The
State, 45 Miss. R., 575.)

Under the law, as I understand it, the facts of this case clearly show-
that the contestee was not elected.

Now let us look to the question whether the contestant was elected.

The majority report shows that it "saves to the contestee his seat" by
a plurality of only 2,040, and that it does this on " the legal presump-
tion iu fav or of the unassailed boxes." The report does not name the
unassailed boxes as they are called. But the names of forty-four boxes
and the votes returned at each are set out in this report, and the major-
ity will admit that they were allowed by them to stand as unassailed,
and that they were not therefore included in the twenty-three boxes
which reduced the plurality of the contestee three-fourths. These boxes
where the contestant had 269 plurality over Manning give to the cou-
testee 2,260 plurality.

Unexamined boxes.

Morgan.

Chalmers.

Bonton County:*

Salaam ...

Aabland

127

Glen'sMill

Hickorv Flat

Pot t's Camp

605

232

Le wi8burh

155

Cockrum

122

159

Lake Cormorant .

104

15 j

540

312

159

151

Oak Grove

Spring Creek

Bethlehem ...

172

Well's Store

113

62 1

400

* Record, page

H. Mis. 137-

t Record, page 741.

{Record, page 743.

-23

354

CHALMERS VS. MORGAN.
Unexamined boxes Continued.

Morgan.

Chalmers.

Panola County :

101

Knight - - --

168

126

100

666

413

Tate County :

205

122

6!)

XyrO .....

109

Tb yatira

150

164

944

348

La Fayette County :

177

Dallas" ...... .. ... .

Clear Creek --

Free Spri D^S

860

268

Total

4,239

1 973

Majority for Morgan .-

2,206

Take this from 2 040 left for Morgan and gives majority for Chalmers

226

380

Makes majority for Chalmers i

COG

If they be rejected on the general evidence of fraud proved, the con-
testant is shown to have 226 plurality. And if to this be added the 380
votes rejected outside of La Fayette County, because the names of the
voters were unlawfully erased from the poll-books, it gives to the con-
testant 606 plurality.

The minority would be willing right here to submit this case to any
court in the country with a full assurance of obtaining a judgment on
the facts on which there is a substantial agreement. There is substan-
tial agreement that the coutestee was returned as elected by a plurality
of 6,465 votes in the seven western counties, which, in a fair election, are
largely Kepublican; that at 23 boxes in these counties 6,121 of this
plurality was found to be fraudulent; that this reduces the total re-
turned plurality to 2,040; that in these seven counties " there is a number
of boxes as to which no testimony was taken, but it may be safely
affirmed that in not one of these counties, taken as a whole, was the
election an honest one;" that at these unexamined boxes the returned
plurality, for the contestee is 2,266; that if they be rejected it leaves
a plurality for the contestee of 226; that there was a general terroriz-
ing of Republican voters in this district; that counsel for contestant
stopped taking testimony at Hernando to avoid bloodshed ; that his
counsel at Oxford, on account of the great excitement there, did not
deem it prudent to take testimony at that place} that the taking of

CHALMERS VS. MORGAN. 355

testimony at Holly Springs was prevented by the refusal of the Demo-
cratic mayor to proceed, after be had agreed to take the testimony;
that the contestant exhausted his time and took a large amount of tes-
timony, but was delayed by dilatory cross-examinations by counsel for
contestee. On this statement of facts, on which there is a substantial
agreement, we confidently ask the judgment of the House in favor of
the contestant.

The principle upon which the majority report gives verity to the un-
examiued boxes is that the precinct is the unit and each must stand or
fall by itself. While this is true in Pennsylvania it is not true in Mis-
sissippi, where the proof shows a complete election machine.

The State board of election appoints the commissioners of each county.
The commissioners can and do disfranchise voters at their will by
erasing their names from the poll-books without notice. The commis-
sioners appoint the inspectors, the inspectors appoiut the clerks. The
clerks are the tools of the inspectors, the inspectors of the commission-
ers, and the commissioners of the State board, and each does the bid-
ding of his master.

The majority report admits this when it says :

Your committee find that there were other methods pursued in the Second Con-
gressional district of Mississippi "to shutdown" upon the Republican voters, which
were iu contravention of law. Among these were:

The constitution of partisan election boards, having no members other than Dem-
ocrats.

The appointment in many cases of parties on such boards to represent the Repub-
licans, who, by reason of ignorance and illiteracy were not "competent and suitable
men."

The unlawful removal of ballot-boxes from the polling places, and from the view
of the United States supervisors.

The illegal erasure from the registration list of duly qualified and registered voters,
and the refusal to permit them to vote.

The stealing of ballot-boxes.

With this pertect system established it would be a refinement of legal
technics to talk about the precincts being units, or about " a legal presump-
tion in favor of" the uuexamined boxes, and more especially when fur-
ther examination was prevented by obstruction interposed by the
friends and agents of the contestee.

The majoiity report not only fails to give any detailed statement of
the boxes considered to be successfully assailed, but fails to state any
rule of law which has governed their actions in at least their seeming
departure from the rules established in Featherstoue v. Gate and Threet
v. Clarke.

It makes a very proper and forcible arraignment of the district for
fraud, and then, without any figures, asks the House to indorse a con-
clusion which is apparently in direct conflict with the facts stated and
with the reasoning of the report.

The failure to make a detailed statement of the frauds adjudged,
leaves the contestant in doubt as to which of his charges have been
sustained, leaves the coutestee at a disadvantage in preparing a de-
fense, and leaves the House without the specific information it has a
right to expect from its committee.

And it leaves the minority uncertain as to which of these thirty-eight
boxes adjudged fraudulent by them are included iu the twenty-three
boxes adjudged by the majority to have been successfully assailed.

This narrows the discussion therefore mainly to the question of law
presented as to whether the import of verity shall be given or not to
the acts of the election officers in this district. Upon that depends
whether the uuexamined boxes shall be counted or not, and whether the

356 CHALMERS VS. MORGAN.

voters rejected outside of La Fayette County shall be counted or
not.

The import of veritv given to the acts of officers is a presumption of
law arising from the belief that all officers do their duty, and in a com-
munity where men respect and obey the law this is a correct presump-
tion. But in a community where those who hold the election believe
that it is necessary to preserve white civilization to suppress the negro
vote, or a majority composed of ivegroes and a few whites, and where at
every box examined it is found that the election officers have fraudu-
lently accomplished this purpose, the presumption of common law and
common sense is that men who believe the same thing, who are in the
same organization, who are selected for the same purpose and placed in
the same circumstances, will do the same thing. Hence, fraud being
found at every box examined, and further investigation b'eing prevented,
by the acts of the friends of the contestee, the import of verity is taken
away from the acts of the officers who made the returns from unexamined
boxes and of those who erased the names of voters from the poll
books.

To determine this question it is necessary to decide tirst whether
there was or was not any fixed plan or conspiracy in Mississippi to
carry the election without regard to the vote.

The evidence in support of an allegation of a conspiracy is generally circumstan-
tial ; and it is not necessary to prove any direct concert, or even any meeting of the
conspirators, as the usual fact of conspiracy may be collected from the collateral cir-
cumstances of the case. Although the common design is the root of the charge, yet
it is not necessary to prove that the parties came together and actually agreed in
terms to have the common design, and to pursue it by common means, and so to carry
it into execution, because in many cases of the most clearly-established conspiracies
there are no means of proving any such thing. If, therefore, two persons pursue by
their acts the same object, often by the same means, one performing one part of an
act, and the other another part of the same act, so ;is ro complete it, with a view to
the attainment of the object they were pursuing, the jury ae at liberty to draw the
conclusion that they have been engaged in a conspiracy to effect that object. Arch-
bold's Cr. Practice, P. L. volume 3, star page 622, note.

The fundamental question in this case is one of law and evidence.

First, as to how far the presumption of verity can sustain returns at
boxes not examined for want of time and because of obstacles inter-
posed by the contestee, when fraud is shown at every box examined.

Second, as to how far the testimony of ticket distributors can prove
votes, when to guard against fraud, men are selected to issue tickets
and take down the names of voters.-

Common law is common sense, and a few principles of common sense
applied to this case will show beyond dispute that the contestant was
elected. The import of verity given to the returns made by election
officers is a presumption of law arising from the belief that all officers
do their duty, and in a community where law is respected and obeyed
this is the correct rule.

But in a community where the party in power believes and openly
declares that it is not only justifiable to suppress the negro vote, bat
that this is essential to preserve their civilization, and where that party,
under laws evidently enacted for that purpose by a systematic plan of
erasing the names of voters, and appointing all election officers, can
make returns to suit themselves, common sense teaches that no import
of verity can attach to such returns.

The majority report after speaking of the various frauds in this dis-
trict says :

If we may j udge from the evidence, this state of things is to be accounted for by the
existence, in that district, of a different standard of morals from that which is gener-
ally accented as the correct one by communities recognized as moral.

CHALMERS VS. MORGAN. 357

The last report of this committee, in McDuffie vs. Tin-pin, sustains
this view of the law as follows :

In considering the evidence with reference to particular precinct returns, it is first
necessary to inquire by whom the election was held, in order to determine what
weight should be given to the returns. Returns are, as a rule, prima facie evidence
of the result; but if the integrity of the inspectors is in any way impeached, either
by showing that their character is such as to cast suspicion on their acts, or that
their belief is that frauds upon elections are justifiable, or that the manner of their
selection was such as to indicate a purpose to procure a false statement of resnlts,
then the returns lose much of the weight that would otherwise attach to them.
English v#. Peele, Forty-eighth Congress. In this case the committee says:

'When once the taint of fraud or unreliability is attached to the official count its
value is gone, and we must look to other sources for better information."

This is true, not only as to one precinct, but as to counties, as was held
by the minority report in McDufie vs. Davidson, and by the reports of
this committee in Featherston vs. Gate, and Threet vs. Clark, as will
hereafter be shown. And this view of the law is fully sustained by the
supreme court of Mississippi in the case of Word vs. Sykes. The re-
porter in the statement of the case says:

The petition further alleges that by conspiracy between Sykes and the Democratic
executive committee, the State board of commissioners were induced to appoint three
Democrats, friends and partisans of Sykes, election commissioners for Monroe
County, who appointed Democrats, friends and partisans of Sykes, election officers
at each of the voting precincts of the county.

The judge delivering the opinion of the court said :

"No mere oir ; ssion or irregularity on the part of the returning officers can result
in setting aside the certificate. Any practice which may be thought purposely to
have been resorted to for influencing the result will have that effect, if those who
made the return knew of or sanctioned it. Speaking for myself alone and not for
the court, I think that the prima facie presumption of correctness in the certificate
fails whenever it is shown affirmatively that as alleged in this case one side only
participated in making out the returns and the other side was excluded from con-
ducting the election and making up the count; in such case, to speak more correctly,
I think the prima facie presumption of correctness never attaches. We all think
that it fails where it is shown that there was any intentional wrong on the part of
those who made the count." (Word vs. Sykes, 61 Miss. 65, 666-687.)

It will be observed that the judge in his individual opinion fully sus-
tained the report of this committee in the case of Thre.et vs. Clark, and
that the whole court say, " Any practice which may be thought pur-
posely to have been resorted to for influencing the result" will vitiate
the returns. The only question, then, is iu this case, Did the party in/
power select all the election officers to suit themselves, and deny to the
other party officers asked for by them, and was this purposely done to
influence the result? That the Republicans were denied any commis-
sioners of election asked for by them, and that this has been done con-
tinuously for years, is abundantly proved ; is not denied by the contestee
in this case, and is admitted in the brief of another contestee from Mis-
sissippi. (See Catchings's brief, p. 260.) That the Republicans were
denied the inspectors they asked for iu De Soto,Tallahatchee, and Tate
Counties, and that this has been constantly done for years, will be seen
from the extracts of testimony which we will give when we come to
speak of these counties separately.

Jn the case of Threet vs. Clark, this committee said :

The committee is of the opinion that where the course is systematically pursued of
appointing on the election boards to represent the minority or opposition party per-
sons not indorsed by that party, and as to whose loyalty to the party whose interests
they are expected to guard there is a question, or of appointing persons who are un-
able to read and write, when there would be no difficulty in finding men well quali-
fied in those respects, this ought of itslf to be considered evidence of conspiracy to
defraud on the part of the election officers. This was clearly a violation of the law on
the part of the board.

358 CHALMERS VS. MORGAN. '

The language here is strong, clear, and positive, and announces the
true rule of law, as sustained by the judge in the case of Word vs. Sykes.
But the recent report of McDuffie vs. Turpin modifies this slightly, as
follows:

When the law provides that each of the two political parties shall have representa-
tion on the election board of inspectors, it is a provision to prevent dishonest parti-
sans from making false returns; and in such case the appointment of men incompe-
tent to determine whether the return is honest or not to represent the party opposed
to the appointing power tends to prove an intent to prevent that watchfulness
intended to be secured by the statute, and raises a strong suspicion (if it "does not
fully prove) of conspiracy to falsity the returns.

What, we would ask, is the practical eftectof this modification, and espe-
cially what is the practical effect of it in a case like this, where thecon-
testee is returned 8,161 majority, and where the proof taken as confessed
by the majority report shows fraud sufficient to reduce that majority to
2,040, and when further proof was prevented by the intimidation of con-
testant's counsel and other obstructions by the Jriends of the contestee I
It is simply to give to thecontestee, instead of the contestant, the bene-
fit of the doubt as to the boxes which could not be reached upon the pre-
sumption that the election officers here were unlike their brethren of
the same party, where the frauds were clearly proven, upon a presump-
tion of law, when common sense teaches that the proper presumption is
that they were all moved by the same impulse, to count out the Repub-
lican majority. But assuming that this unfair and illegal appointment of
election officers only " raises a strong suspicion (if it does not fully
prove) of conspiracy to falsify the returns," this presumption is made full
proof by the well-known plans in Mississippi and by the proof made in
this case against the contestee himself.

As to the plan in Mississippi, it is clearly shown that the election ma-
chinery is entirely in the hands of one party, and that the law makes a
fearful engine of fraud when in the hands of men who are determined to
carry the election at all hazards. The election commissioners have power
and do, without notice, disfranchise all the Republican voters, or as
many as they may think necessary, by erasing their names from the poll-
books. And the law is purposely framed to perpetrate fraud, because
r>o notice is given to the party who is thus disfranchised. They can and
do select men as inspectors who they know have no scruples against
making false returns, and they can and do appoint ignorant men to
represent the Republican party, and thus can and do carry the election^
to suit themselves. When all this is done it is proof in itself that it was
done with a purpose to effect the result, and to ask further proof would
be to ask us to prove an axiomatic fact. And yet the majority of this
committee say they can see no evidence of conspiracy. It is well known
that there is a majority of 25,000 negro voters in Mississippi, and a num-
ber of white Republicans, yet it is equally well knowu that Democratic
officials, with this election machinery, count a majority for the Demo-
crats of from 30,000 to 50,000 at every election. And this is indorsed by
every Democratic speaker and Democratic newspaper in Mississippi
upon the ground that it is essential to preserve their civilization. This
of itself is evidence of a conspiracy in that State.

But, it is unnecessary to look to general proof because the proof of a
conspiracy to suppress the negro vote in this district is clearly shown
by the declarations of the contestee and his supporters, and by acts
done by his supporters in his presence or when he was near at hand. It
is proved that in a canvass for a nomination to Congress to recommend
himself to the prevailing sentiment, he declared on the stump that he
was as much in favor of cheating the negro out of his vote as any

CHALMEES VS. MORGAN. 359

other man. (Rec., p. 954.) That in another speech he said that he
and others, in 1875, had buckled on their six-shooters, and with clubs
in their hands, had knocked down the negro leader at the polls, and he
advised this to be done again. (Rec., p. 574.) It is further proved that
La Fayette County was given up to be lost to the Democrats one week
before the election, and that the contestee was sent there to organize
it, and that he was there when the conspiracy was formed and carried
out to disfranchise the Republican voters by erasing their names from
the poll-books. And it is fair to presume that he was the author of or
a participator in this plan, from his previous declarations and from the
fact shown in the history of this district that this same outrage was
praticed at his home in De Soto County in 1880, for which the election
commissioners were tried and convicted in the United States Court.
(See Dig. El. 1880 to '82, p. 313.)

It is further proved that at his home a military company, armed with
Winchester rifles, was organized for election purposes, and that he was
present when a squad of this company was sent to JSTesbit's on the day
of election to remain during the count, and prevent a riot of the large
majority of negroes, who believed they were being falsely counted out.

The troops were telephoned for by Democrats, when if the count was
fair the Democrats were in the majority and needed no help from troops.
The | roof shows 192 negroes and 46 white voters there and the negroes
would have had no cause for riot unless they believed their votes were
being stoler.

It is further proved that the certified list of voters was destroyed at
his home, by one of the Democratic commissioners of election. It is
further proved, by his attorney and witness, A. S. Buchanan, that he
(Buchanan) believed that Republican rule in Mississippi was worse than
ballot-box stuffing ; or to use his own language, he says :

I think anything like wholesale ballot-box stuffing, or fraud in elections, is almost,
if not quite as greatly to be deplored aa Republican rule would be. (Rec.,p. 837. )

And one of his inspectors of election, W. W. McMahon, who at Col-
lege Hill returned 285 for Morgan and 26 for Chalmers, where 281
negroes, and only 30 white men voted, admitted on examination that he
did not believe a negro should be allowed to vote. (Rec., p. 962.) But
he did not, deny the following conversation, which was proved on him
by L. N. Word. (Rec., p. 556.)

Q. Did you have any conversation with these judges of election through the county
of La Fayette as to the way they proposed to carry things, and did carry them at the
last election ? A. Yes. sir; yes, sir; it was since the election; I were in the back
room of Brenner & Wallace's store at Oxford, and we were discussing this erasure,
and Mr. McMahon, who was an inspector of the election at College Hill, walked in ;
I appealed to him, and asked him if he thought it was right. He said that he thought
anything was right. He says, "My God, anything is right to keep ahead of the
negro.' " Well," I said, " there was no negro wanted in this canvass." " That don't
make a damn bit of difference; the negroes voted for Chalmers, and, by God, if we
can't stuff 'urn out, wee'l shoot 'urn out; we don't give a damn how we get 'um out,
but we are going to control 'urn." That is his words as near exactly as I can get it ;
that was the meaning of them.

With such declarations of the belief and intentions of the contestee
and his supporters in this district, it would be encouraging crime to
give the import of verity to returns made in such a district and by
such officers at boxes not examined, when the failure to examine them
was brought about by the acts of contestee and his friends.

A fair test of the injustice of relying on such a presumption is found
in the three counties of La Fayette, Tallahatchie, and Tate, iu two of

360 CHALMERS VS. MORGAN.

which, inspectors were denied to Republicans, and in the other, La Fay-
ette, a conspiracy to erase the names of voters from the poll books was
clearly shown. In these counties the contestant is returned but 916
votes, where in 1882 at a reasonably fair election he received 3,808 votes.
In 1882 he had in these counties a majority of 643 over Manning, and
this time Morgan is counted a majority of 3,706 over him. There are
42 boxes in these three counties, and only 12 could be examined in the
limited time allowed and under the obstructions interposed by the
Iriends of coutestee. But in these 12 boxes fraud enough is uncovered
to add 1,350 votes to Chalmers, and take from Morgan 1,494, making a
change of 2,844. Take this from the returned majority, 3,706, and it
falls to 822. And yet it is said this 822 must be counted for the con-
testee on the presumption of law that the officers at the unexamined
boxes made honest returns. To do this would be to oft'er a premium
for fraud in proportion to its magnitude, and "save to the sitting mem-
ber his seat in Congress," obtained by the suppression of Republican
votes and held by the suppression of testimony.

The minority report in McDuffie vs. Davidson, signed by three mem-
bers of the majority of this committee, including the chairman, held
that where there was evidence of a conspiracy to carry the election in
four counties out of live, the four should be thrown out, and the contest-
ant seated on the proof in the fifth. In this case there are but three
counties out of nine which were asked to be rejected, and if this is done
the contestant is elected by a large majority, as will be seen here-
after from the discussion of each county separately. But it is now said
that this decision of McDnflie vs. Davidson is wrong ; that each box
must be considered separately, and that a whole county can not be
thrown out. If this was true in any other State, it can not be true in
Mississippi, where, as we have said, each county is a unit in the election
machinery, and every box is manipulated at the dictation of the county
commissioners of election, as heretofore stated.

It is manifest that the contestant took his proof and prepared his
case under the well-founded belief that the members who signed that
minority report believed it to be law, and would so hold again, and I
for one stand by it yet. This committee has twice indorsed the doc-
trines there held as to whole counties at this session. In the case of
Featherstone vs. Cate, the conspiracy to carry the election in Crittenden
County in September, and the procurement of fraudulent ballot boxes
at that time, was not only held to extend to the whole county, but to
the November election, as a continuing conspiracy because some of
these same boxes were used at some of the precincts. In the case of
Threet vs. Clark, this committee held that the action of the commis-
sioners of election of a whole county in refusing to appoint proper in-
spectors at each box was in itself evidence of a conspiracy to defraud.
To hold now that a county can not be rejected as a whole, or that all
the boxes in a county can not be tainted by the action of the commis-
sioners who control the machinery of elections of the county, is to re-
verse the law, as stated in all these cases, and I can not consent to it.

But it is not essential to this case that an}" county should be thrown
out if the rules laid down in the case of Featherstoue vs. Cate are fol-
lowed, as will be hereafter seen.

The report of McDuffie vs. Turpin begins with a reference to the cen-
sus ot 1880, to show that there are a majority of colored voters in that
district. The contest in this case is made entirely in the seven western
counties of the second district of Mississippi, and, applying the same
rule here, the census shows 2,600 majority of colored voters in these

CHALMERS VS. MORGAN. 361

counties, and the majority report in this case says tin's was a Republi-
can district until the adoption of the shot-gun policy.

The McDufiie vs. Turpin report refers to the history of that district,
and gives election returns betore the political revolution of 1875, to
show that district was then Republican. Applying the same rule here, it
is shown that Grant had in these counties a majority of 3,376 in 1872,
that Ames had a majority of 3,026 in 1873, and Chalmers had a major-
ty of 3,048 over Manning in 1882. These facts and others in the record
show there are a large number of white Republicans in this district.
But the contestant here presents another and more recent test of the
true vote in three of these seven counties. In De Soto, Marshall, and
Tate there were in 1887 hotly contested primary elections for Demo-
cratic nominations -which necessarily brought out the full Democratic
vote, as a nomination meant that the nominee should be counted in,
as was shown by the gentleman from Minnesota (Mr. Comstock) in his
able speech in the McDuffie case. At these primaries there were only
3,873 Democratic votes, and yet in the same counties the next year the
contestee is counted 6,253. And to show that 3,873 was the full Dem-
ocratic vote of these counties, it is just 386 more votes than Colonel
Manning received in the same counties at a fair election.

The report of McDuffie vs. Turpin refers to former contested-election
cases in that district, to show fraud and a fixed purpose of the Demo-
crats amounting to a conspiracy to defraud. Applying the same rule
in this case, all manner of frauds are shown in this district in the case
of Buchanan vs. Manning. The report in that case, presented by Mr.
Thompson, and which was originally adopted as the report of the com-
mittee, sums up the frauds in that case as follows, and comparing it
with the summary of frauds made in the majority report, it will be seen
that most of them are repeated in this case.

(1) The action of the governor and State board, their refusal to allow the opposi-
tion party to name any of the election commissioners.

(2) The same action on the part of the county commissions in appointing the pre-
cinct inspectors.

(3) The appointment of corrupt and illiterate officers.

(4) The systematic adjournments of the election without sufficient cause.

(5) The premature closing of the registration-books and refusal to register Re-
publican voters, the erasing of names of Republican voters already registered, and
the forgery of poll books.

(6') The failure to openly count the vote at the closing of the polls.

(7) The changing of polling places.

(8) The abandonment of ballot-boxes during adjournment, and of their carrying
off to private houses during adjournment.

(9) The interference with and exclusion of United States supervisors.

(10) The fact that these practices were in counties having large Republican majori-
ties are conclusive evidence of a conspiracy to defraud.

This being a conspiracy to defraud, there being proof of fraud at a number of pre-
cincts, and the illiterate inspectors leaving the door open to unlimited fraud, and
there being no proof by conlestee of good faith in the election, it must be set aside.
(Dig. Elect. Cases 1880 tolbSiJ, page 337.)

The report of McDuffie vs. Turpin refers to the suppression of testi-
mony in that case by dilatory cross-examinations as follows :

The printed record discloses another unpardonable attempt to suppress testimony.
This attempt was the deliberate act of contestee and his attorneys. Frivolous ob-
jections, overing whole pages of the record, and cross-examinations of witnesses
which would disgrace a police-court shyster, were the means by which contestee and
his attorneys sought to use up the time allowed to contestant in which to take testi-
mony to prove his allegations. This conduct resulted, beyond a reasonable doubt,
from a deliberate purpose to suppress as much of contestant's evidence as possible,
and prevent a disclourse of the whole truth.

362 CHALMERS VS. MORGAN.

OBSTRUCTIONS TO THE TAKING OF TESTIMONY.

Applying the same rule here, it will be seen that the contestant in
this case suffered more from the suppression of testimony by contestee
and his friends. At Nesbit's, where there was long and insulting cross-
examination of the witnesses, counsel for contestee dared the officer
taking testimony to go on at night (Kec., p. 1029). At Hernando, on the
very day that counsel for contestant commenced taking testimony, the
news came of the assassination of Clayton, which was a fearful warning
to contestant and his friends as to what they might expect if they con-
tinued to prosecute his contest, and the evidence shows that the appear-
ances of danger were so great that counsel for contestant ceased to
take testimony there. (Kec., pp. 164 and 998.)

This was followed by a threatening publication in the Globe, a Dem-
ocratic paper at Oxford, saying:

If Chalmers came there and did right he would have no trouble, hnt if he acted as
he did in De Soto Couuty, he had better pack his traps and get away. (See Rec., p.
1040.)

Mr. Montgomery, his attorney there, had been removed from a lucra-
tive position as principal of a public school because he had made a Ke-
publican speech in Illinois, and he says the excitement against him and
Chalmers there was so great that he deemed it imprudent to take tes-
timony there (Rec., p. 593). It is proved that the circuit clerk of Tal-
lahatchie County delayed giving him copies of the precinct returns of
that county until it was too late for him to take testimony in that
county. Again, his witnesses in La Fayette County were not allowed to
examine the registration books that they might compare them with the
mutilated poll-books until after they had testified in chief. At Holly
Springs he was prevented from taking testimony by the refusal of the
Democratic mayor to go on with the testimony on account of the action
of the counsel for contestee, and thus, practically, his counsel were
driven from the State and compelled to take testimony at Memphis,
Tenn., where his witnesses had to be carried by railroad at great expense
and loss of time.

In the mean time contestant was confined personally at his home in
Sardis, examining into the box at Como, and by the dilatory cross-exami-
nation he was held for thirty days in the examination of only two hun-
dred and sixty-nine witnesses from one box, Como. Notwithstanding
all these obstructions, thirty-eight out of ninety-seven boxes in the seven
western counties were examined into with the result hereinafter given,
which shows that he was elected.

REJECTED VOTERS.

In addition to the four hundred and twenty two voters in La Fayette
County, who were disfranchised by having their names erased from the
poll-books, there were three hundred and eighty rejected in five coun-
ties, Benton, De Soto, Marshall, Panola, and Tate, making eight hun-
dred and two voters rejected, who appeared at their usual place of
voting, which shows that they were not dead and had not removed.

Under the law of Mississippi the commissioners of election of each
county in a star chamber proceeding can, without notice to any one,
erase the names of voters from the registration books if they are dead
or removed or convicted of crime, but not otherwise. As they do this
without notice to the voter, and upon ex partd statements, if any at all
are taken, the only presumption in favor of their action would be that

CHALMERS VS. MORGAN.

363

tbey acted honestly ; but when the voters appeared living, and at their
usual place of voting, this would certainly overcome any presumption
that they were either dead or removed, and when we look to the his-
tory of this district the presumption even of honesty is overthrown. In
1880 the commissioners of De Soto County were indicted on two charges
(see Digest Election Oases, 1880-'82, pp. 315 and 316); one for making
false poll-books, of which they were acquitted, and the other for fraud-
ulently erasing the names of voters from the poll-books, for which
they were convicted (see statement of case, 1774, p. 316, and state-
ment of their conviction, p. 313, in same volume quoted above). One
of these commissioners, T. A. Dodson, is still a commissioner of that
county. (See Kec., p. 741, where his name is signed to the returns.)

The Commissioners of Election in Marshall County were indicted for
the sarne thing and plead guilty (See same volume, case 1995, page
315.) That this was done in Pauola also (see same volume, page 310),
under registration of voters. Under this statement of the history of
these counties, any presumption as to the fairness of the officers in
erasing these names is done away with. And yet the majority of the
committee refuse to count these votes, on the presumption the officers
are presumed to do their duty. The law in failing to provide for any
notice to the voter who is disfranchised shows it was intended to be an
engine of fraud.

There were rejected as follows:

Waterford, 28 fRec.,pp. 620,621, and 1095

names-given).
Chulahoma, 30 (Rec., pp. 619,1103 ; names

given).
Laws Hill, 8 (Rec., pp. 628, 1093; names

given).

Springport, 13 (Rec., pp. 442).
Batesville, til (Rec., p. 237 ; names given).
Shorrods, 20 (Rec., p. 188).
North Oxford, 200 (Rec., pp. 562, 563).
South Oxford, 179 (Rec., p. 555).
Abbeville 40 (Rec., pp. 555, 556, and 625).
Total, 802.
422 in La Fayette, 226 in Marshall, 94 in

Panola, 33 in De Soto, 20 in Tate, and

7 in Benton.

Michigan City, 7 (Rec., pp. -164, 165).
Hernando Depot, 17 (Rec., p, 180).
Nesbitt's, 10 (Rec., pp. 100, 119 and 134.

Names given 1139 and 1145).
Love's, 6 (Rec., p. 380).
East Holly Springs, 20 (Rec., pp. 612, 577

and 588).
West Holly' Springs, 23 (Rec., pp. 612,

577, aud 588).

Red Banks, 27 (Rec., pp. 635, 1107).
Hudsonville,13 (Rec., pp. 638,1100; names

given).
Byhalia, 40 (Rec., pp. 615 and 1111;

names given).
Watson, 30 (Rec., p. 559).
Wall Hill, 17 (Rec., pp. 623, 1110; names;

given).

That these rejected voters all wanted to vote the Republican ticket
is demonstrated by their asking for and receiving Republican tickets.
That they had been voters was stated by themselves at the time they
were rejected. At Holly Springs, Captain Buchanan says, the 43 re-
jected there were known to him as Republican voters at that poll (Rec., p.
612). At Sherrods, Graysou says the same, and that some of them lived
on his place.

At Olive Branch old Henry Wood says he had been marked for dead
for three elections, but " riz this time."

Under this testimony the burden of proof would be on those who re-
ject the voters, to prove that they had moved away or died, and not
upon the living voter who asked to vote at his usual place to prove that
he had not moved away or was not dead.

On this sulyect the majority report says:

There is no doubt in the minds of yonr committee, from the evidence presented in
this record, that immense frauds were practiced in this Congressional district by the
simple device of unlawfully striking names from the registry list and then refusing
to receive votes be*, auae of the alleged want of registration.

364 CHALMERS VS. MORGAN,

And yet, notwithstanding this declaration, the majority declined to
count the 380 voters who were thus rejected outside of La Fayette
County.

HOW VOTE PROVED.

As to how far the testimony of the ticket distributors can prove the
votes when they are selected to issue tickets and take down the names
of voters under a general belief of their party that their votes will not
be fairly counted is so clearly shown in the opinion of Hon. H. E.
Jackson, United States circuit judge, that we give it in full :

CHARGE TO THE JURY IN THE FAYETTE COUNTY (TENN.) ELECTION CASE.

Hon. Howell E. Jackson, United States circuit judge for Tennessee, Kentucky,
Obio, and Michigan, formerly the Democratic United States Senator from this State,
presided at the trial and delivered the charge to the jury in the case of tho United
States vs. Carpenter et al., the judges of election at Garnett's, fourth district, Fayette
County, charged with fraud at tho election on November 6, 1888. After some unim-
portant introductory remarks the judge said:

"Counsel for defendant have * * * sought to impress upon you that some great
and vital question other than the guilt or innocence of the defendants on trial is in-
volved in this suit. This is a mistake, gentlemen of the jury. In the trial and proper
disposition of' this case upon the evidence, the court nor the jury have anything to
do with the race problem or with the question ol suffrage. The, colored man has been
regularly invested with the right of suffrage. The constitution of this State confers
the right to vote without restriction upon all male citizens twenty-one years of age
who have resided twelve mouths in the State and six months in the county in which
the right of suffrage is exercised. The colored man has the benefit of this constitu-
tional provision ; and when he has resided in the State and county the required
period he has the same right before the law to cast his vote and have it properly
counted that you and I have.

"This trial in no way involves the consideration of the policy or impolicy of con-
ferring this high privilege upon the colored population.

" Fraud can rarely be established by direct testimony, to the precise inanuer of its
accomplishment. Its perpetration does not admit witnesses to the worst act, and it
is no part of Ihe judge's province or duty in this case to inquire into or to be satisfied
as to the method or plans adopted or employed to accomplish the fraudulent acts
charged, if the evidence convinces yon beyond a reasonable doubt that they were
done or permitted by these defendants or either of them.

*****

" Several witnesses testified that the voting population of the fourth civil district
of Fayette County on November 6, 1888, numbered between 490 and 500, say about
BOO ; that from #0 to 100 of such votes were white and Democrats ; that the remainder,
numbering about 400, were colored men and Republicans; that on the day of the
election there was a large turn out of such voters ; that the colored voters present
exceeded 300 in number.

"John McGowan, the Republican chairman of the district, testified that there were
over 300 colored Republican voters present; that he directed many or most of them
to go for their tickets to John C. Reeves, who occupied a position 10 or 20 steps from
the voting place, and was distributing Republican tickets to Republican voters; that
Reeves's position was in full view of the window at which the ballots were handed in
to the election officers; that he saw many of such tickets deposited or handed in to
officers holding the election, but can not swear to the exact number that actually
voted such Republican ticket. John C. Reeves testified before you that he was
present; that he had in his possession Republican tickets, a sample of which is pro-
duced in evidence, having on it a full list of Republican candidates from Presidential
electors and Congressmen down to State and county officers; that he issued to the
colored voters on that day, upon their application for the same, three hundred and
twenty-five of these tickets while at the voting place; that on his way home he met
four or five other voters going to the polls to whom he gave Republican tickets; the
names of two of these voters he finds upon the poll-list at numbers 407 and 409.
Reeves further states that he saw over one hundred of them, to whom he gave such
tickets, go directly from him to the window where the votes were received and hand
them to the officers holding the election.

"He could not swear that they actually deposited the identical tickets received
from him, but he saw no change of ticket or change of purpose on the part of the
voter after procuring from him the Republican ticket.

CHALMERS VS. MOKGAN. 365

" He recognizes and identifies on the poll-list the names of about 100 of such Re-
pnblican voters.

"Now, gentlemen of the jury, Reeves or McGowen are in no way impeached, nor
are their statements in any way contradicted. They stand befoi'e you as in every
wa^ credible witnesses, and their testimony is entitled to full faith aud credit.

" If the case for the prosecution stopped with the testimony of Reeves and Mc-
Gowen it would present a case of circumstantial evidence as to the vote actually cast
having exceeded that which was counted and returned by the election officers and
judges. When circumstantial evidence is relied on to convict, as counsel for defend-
ants have urged, it should be of such conclusive character as to exclude every rea-
sonable hypothesis on innocence.

" But the Government's case does not stop with the circumstantial evidence de-
tailed by Reeves and McGowen.

" In addition to their statement, one hundred and eight witnesses have one by one
separately testified before you that on the day of said election they got from Reeves
Republican tickets; that they each voted such ticket jnst as it was received from
said Reeves without in any way scratching or changing the same. Besides these
one hundred and eight witnesses, Allen Dodson states that he voted a straight Re-
publican ticket which he got from Dun Bowlan, which differed somewhat in appear-
ance from those issued by Reeves. With the exception of said Dodson, the other
one hundred and eight witnesses came before you and severally state that the ticket
which they respectively voted on the 6th of November, 1888, in said fourth district
of Fayette County , was received from Reeves; that they each voted such ticket as
it was received by them, without change or alteration of any kind; that they han-
ded such tickets to the officer holding the election many of them stating that de-
fendant Carpenter was the person to whom the ticket was delivered at time of vot-
ing. The name of each of these one hundred and eight witnesses, together with that
of Allen Dodson, appears upon the poll-list of the election which is introduced as
evidence. It is thus shown that these one hundred and nine witnesses actually voted
at said election.

"They eaca identify the kind of ticket they respectively voted by showing from
whom they received the same, and that after receiving such ticket they voted it with-
out change or alteration.

"These witnesses are not impeached or any way discredited. They stand before
you as credible as any that have testified. They in some instances make mistakes in
saying that Harrison's name was on their ticket, and fail to remember other names
that were on it. But intelligent witnesses for the defense, like Esquire Mat Rhea,
make similar mistakes when they say that Cleveland's name was on the ticket they
voted, and also fail to remember the names of the different candidates voted for.
This is not material. The controlling fact to be ascertained irom the evidence is,
did the one hundred and nine witnesses for the prosecution vote the Republican
ticket which they received from John C. Reeves ?

"The witnesses swore directly and positively to the fact. A fact resting on their
own act and within their own knowledge This is not circumstantial, but positive
evidence, and if the witnesses are believed, the fact is established that at least 109
Republican votes were cast at that election in said district. The testimony of these
109 witnesses swearing directly and positively to this fact can not be properly dis-
regarded by the jury, because such witnesses not having been impeached or con-
tradicted, stand before you as credible as any that have testified.

" If the prosecution had simply shown that each one of ihese witnesses was seen
going to the polls with a Republican ticket in his hands which he had received from
Reeves with a declaration of his intention to vote such ticket, such facts and acts
would have constituted circumstantial evidence, that they voted such ticket ; but
wheu the voter in person comes before yon as a witness and swears that he put into
the ballot-box or handed into officers holding the election the identical b: Hot that
he received from Reeves, that is not circumstantial, but positive testimony, and es-
tablishes the fact if the witness is credible ; and unless impeached or directly inter-
ested in the result, all witnesses are deemed credible.

' The jury should give to such positive testimony its due weight and consideration,
and the facts thereby established should be followed to their logical result.

"The jury are not at liberty to infer upon the mere suggestion of counsel that
other parties have committed a crime in order to shield defendants from consequences
of acts which the evidence tends to establish against them.

" The jury may not indulge in any such presumptions of guilt of other persons
not on trial in order to relieve defendants whose guilt or innocence must be found
upon the evidence before the jury and from that alone.

" It is further suggested by counsel for the defense that those 109 voters were be-
fore or after receiving their Republican tickets bought up, and for a consideration
were induced to destroy the tickets received from Reeves and vote Democratic tickets.
This suggestion is open to the same observation and objection as the others.

366 CHALMERS VS. MORGAN.

" It is not supported by any testimony; it involves the presumption of a criminal
offense committed by some unknown parties upon the mere suggestion of counsel.

" The jury is not warranted in giving any weight to this suggestion. The force of
the evidence against defendants whatever it may be, can not be broken by indulging
in any such presumption."

This sustains the ruling of this committee in Featberston v. Gate,
Threet v. Clarke, and McDuffie v. Turpiii. Applying the rules of law
thus clearly established, we find the result to be as follows:

GENERAL EVIDENCES OF FRAUD.

Before proceeding to discuss each box, it is well to notice the general
evidence of fraud in addition to that so ably stated in the majority re-
port all over the district, which has been a Republican district at every
election admitted to be fair.

Commissioners of their own choosing refused to Republicans (Gibbs'
testimony).

Have always been refused. This is admitted in Catchiugs's brief,
page 260.

Inspectors of their own choice refused to them in De Soto County.
(Bell's testimony, Rec., p. 156). Have continuously been refused.
(Haynie, Eec., p. 547 ; Colonel Jones' testimony, Rec., p. 521 ; Haynie,
Rec., p. 547 ; Henry Wood, p. 551 ; T. W. Turner's testimony, Rec. p.
447).

Coutestee openly advocated cheating negro voters. (Howry, Rec., p.
954.) Coutestee openly advocated violence. (Burton, Rec., p. 574.)
Military organization at his home. (Rec., pp. 238 and 664.) Plan ad-
mitted to be to obtain tremendous majority. (Rec., p. 655.)

It is proved that a Democratic inspector changed 200 tickets at Bate-
ville, making a difference of 400 at this box. (Rec., pp. 166-168 and
472-474.)

Democratic officers changed-72 tickets at Lainar, making a difference
of 144 at this box. (See Brewer's Democratic inspector ex parte affi
davit, newly discovered evidence, filed January 20, 1890.)

The inspectors were caught changing tickets at East Hollv Springs.
(Rec., p. 570.)

Inspectors caught changing tickets at Longtown. (Rec., pp. 430 and
435.)

In spectors caught changing tickets at Springport. (Rec., pp. 442 and
444.)

Inspectors caught changing tickets at Sherman's Creek. (Rec., p.
445.)

Inspectors caught attempting to change at Senatobia. (Rec., pp. 528,
529.)

Inspectors caught attempting to change at Sherrods. (Rec., p. 188.)

Inspectors caught miscounting the votes at West Holly Springs.
(Rec., pp. 577, 578.)

Inspectors caught reading Republican as Democratic tickets at Nes-
bitt's. (Rec., p. 102.)

A marked ticket voted at Hernando Court- House but none counted.
(Kec., pp. 151, 156, a'nd 383.)

Five scratched Democratic tickets and one Prohibition ticket with
Chalmers for Congress voted at Eudora ; none such counted. (Rec., pp.
969 and 970.)

At Hudsonville a marked Republican ticket voted j not counted. (Rec ,
p. 863.)

CHALMERS VS. MORGAN. 367

At Byhalia three men marked voted who were not present, one who
was then sick in bed and died a few days after. (Eec., pp. 016, 622, and
list of voters 1,114.)

At Hudsonville seven men not present and non-residents of the State
marked voted. (Rec., p. 638 and certified list of voters, not published,
bub filed with the committee.)

Eight hundred and two living Republicans who came up to vote
were rejected as dead or removed.

In gram's, Stewart's, and Taylor's, large Republican boxes, werestolen.

Earty Grove, where there is 100 Republican majority, no election
held. (Rec., p. 187.)

Thirty-one more votes than voters at Abbeville. (Rec., p. 625.)

Twenty-one more votes than voters at Graball. (Rec., pp. 448 and
451.)

In the two counties of Tippah and Union, where the election was fair,
there were only 1,064 colored voters (see Rec., p. 1), and here Chal-
mers received 912 votes (see Rec., pp. 747, 748). In the three coun-
ties of La Fayette, Tallahatchie, and Tate there are 5,006 colored voters
(see Rec., p. 1), and here Chalmers is counted only 916 votes (see
Rec., pp. 742, 745, 746). In these three counties, where no election was
held, at three Republican boxes in Tallahatchie County, Chalmers had
a majority of 643 over Manning (see Rec., p. 733). This time Mor-
gan is counted 3,677 majority over Chalmers (see Rec., pp. 742, 745, 746).
In one of these counties, La Fayette, the Republican voters were erased
from the poll-books, and in the other two Republican inspectors were
denied, and it is insisted that these counties shall be thrown out. Mor-
gan is counted 8,100 majority (see Rec., p. 4). Manning's total vote
in the district was 8,749 (Rec., p. 733). That is only 688 votes less than
the entire Democratic vote of the district as shown for Manning in 1882.
Morgan is counted 13,978, a majority of 5,229 over Manning's vote,
and to have obtained this he must have received 5,229 Republican votes
against the Republican nominee, when the Republican party was well *
organized.

INTIMIDATION.

Houses of negroes fired into a Hernando the night before the election.
(Rec., p. 157.)

Negroes beaten and houses fired into at Leverett's, and a negro
woman shot. (Rec., pp. 1048, 1049.)

Negroes beaten for refusing to join Democratic club at Dogwood
Flat, (Rec., p. 1050.)

Voters fired into on day of election at Sherman's Creek. (Rec., pp.
445 and 1053.)

Tickets snatched from voters at Dogwood Flat. (Rec., pp. 449 and
1054.)

Room fired into at Abbeville while votes were being counted. (Rec.,
p. 625.)

Armed men went from Hernando to Nesbitt's and remained until the
votes were counted. (Rec., pp. 132 and 701, 702.)

At one box (Como) the fraud was thoroughly proven by examining
the voters themselves.

Taking testimony delayed by dilatory cross-examinations. (See every-
where.)

Testimony stopped at Hernando by intimidation. (Rec., pp. 164 and
994.)

368 CHALMERS VS. MORGAN.

Testimony stopped at Holly Springs because no officer to take it.
(Rec., pp. 580-582, 600-602.)

Testimony not taken at Oxford because counsel for contestant deemed
it imprudent to do so. (Rec., p. 593.)

BENTON COUNTY.

Lamar. The box here was taken from the presence of the United
States supervisor, and hence the returns are vitiated.

Perry Ward, duly sworn, deposes and says as follows:

(Counsel for J. B. Morgan objects to examination of this witness, as no notice was
given.)

Qu. No. 1. Where do you Jive? Ans. I live on Mr. John Mason's farm.

Qu. No. 2. Did you vote at Lamar last election 1 Aus. I did.

Qn. No. 3. Was you the Federal supervisor at Lamar ? Aus. I was.

Qu. No. 4. Was you in the room where the election was held all day and until the
votes were counted out ? Ans. I was.

Qu. No. 5. Was you where you could see the box all the time until the polls were
closed? Ans. Yes.

Qu. No. 6. The box wasn't removed any time during the day or night? Ans. Yea,
sir.

Qu. No. 7. Where was the box carried to, and when was it removed ? Ans. It was
moved at 12 o'clock, and Mr. Brewer carried it to his house?

Qu. No. 8. Did you go with Mr. Brewer and see the box ? Ans. I did not.

Qu. No. 9. I will ask you to state just what occurred, and the condition the box was
in when Mr. Brewer carried it off and brought it back, and also what was said lo lira
(supervisor.) Aus. When we reached the box that morning it locked and sealed /nd
he unlocked box. We voted in the door until 12 o'clock, and at 12 o'clock he said we
would close for dinner, and he said, " Judge, I will give you the key and I will take
the bo*;, and don't you run off with the key." I said, " Give me the box and you take
the key, for there is nothing in the key for me to run off with ; you have it all in the
box." He said. "Look at the box and pull it and see if it is locked." I told him it
was locked. He said, "Do you see any hole in it?" I told him "No, sir; there wis
EO hole in it," and when the box came back after dinner it was unsealed, hole was
open, aud he said, " We will vote in the hole this evening." (Rec., pp. 169, 170.)

. Since the taking of the evidence in this case closed, ihvexparte state-
ment of the " Brewer" herein referred to has been taken by contestant,
and the same filed with the Election Committee January 29, 1890, and
notice thereof given to contestee by the clerk of the committee.

Brewer's affidavit states that he was one of the Democratic election in-
spectors at Lamar at this election ; that he kept an account of the
vote as counted, and preserved a memorandum thereof in his memo-
randum book ; that he signed the returns as made up by the clerk
without examining the same, thinking the clerk would make a true re-
turn of the vote; that since the election he learned the returns as pub-
lished were at variance with the true vote as cast, and that he has
frequently so stated.

He swears that the true vote as cast at that election, according to the
memoranda then and now in his possession, was, for Chalmers 149,
and Morgan 29. The returns gave Chalmers 77 and Morgan 101. But,
leaving out the affidavit, and counting 48 proven for Chalmers, we should
take 101 from Morgan and 77 from Chalmers. The count then stands:

Chalmers,

Morgan.

As returned
Lamar:

Deduct .

5,817

13, 978
101

5,740
Add ! 48

5,788

13,877

CHALMERS VS. MOEGAN. 369

DE SOTO COUNTY.

Horn Lake. Jim Stephens, Kepublican inspector, could not read or
write. (Kec., p. 45.) John McCain, a suitable inspector asked for by
Republicans, was refused appointment by the Democrats. (Kec., p. 40.)
There were 363 votes counted at this box. It is proved that 249 of these
were negroes, and that all voted the Republican ticket but one.

Jim Stephens (c.), a witness on behalf of contestant, being first duly sworn, deposed
as follows :

Direct examination by Gen. CHALMEKS :

Q. How old are you ? A. Eighty.

Q. Can you read and write ? A. No, sir.

Q. Were you appointed the Republican judge of election here at Horn Lake at the
last Congressional election ? A. Yes, sir.

Q. Did you vote ? A. Yes, sir; I voted.

Q. Who did you vote for ? A. I voted tor Mr. Chalmers.

Q. How did you know that you voted for Mr. Chalmers? A. The ticket was given
to me that way.

Q. Did you ask for a Chalmers ticket? A. Yes, sir.

Q. Your intention was to vote for Chalmers ? A. Yes, sir. I don't know whether
I voted for him or not ; I couldn't read. My intention was to vote for him.
Cross-examination by Mr. WATSON :

Q. What voting precinct do you live in in this Horn Lake precinct; you live here
at Horn Lake, do you ? A. Ob, yes ; sir.

Q. Where did Mr. Chalmers live at the time you voted for him ? A. Well, I don't
know exactly vhere he did live then. I voted for him. I don't know where he did
live at.

Q. Do you know now where he lives ? A. No, sir; I don't know now.

Q. How loug have you known Mr. Chalmers? A. I didn't know him when I seed
him without somebody else telling me it was him.

Q. Who else did you vote for? A. Nobody else; they didn't give me but the one
ticket.

Q. You say you were one of the judges of the election ? A. Yes, sir.

Q. You signed the returns of the election ? A. Yes, sir.

Q. Was the election conducted fairly ? A. It was while I was sitting there; that
was all I could do about it.

Q. Were you there all day ? A. Yes, sir ; I was there all day, till night.

JIM (bis x mark; STEPHENS.

HORN LAKE, Miss,, Jan., 21, '89.

Deposition of Tom McCain (col.), a witness on behalf of the contestant, being
first duly sworn, deposed as follows :

Direct examination by Gen. CHALMERS :

Q. State your name and age, and where you reside. A. Thomas McCain ismy name ;
living here in De Soto County; been living bere for nearly 50 years, I reckon ; been
here ever since I was a boy, and April 1st will be 62; that's my citizenship in this
country.

Q. Did you ever hold any office ; if so, what was it ? A. I was elected here to the
legislature of Mississippi ; I believe last time I run here I beat the governor ; I know
I did ; got more votes than the governor did.

Q. When was that? A. It was in 1874, 1 believe; somewhere along there.

Q. Did you vote here at the last election for Congress? A. I did, sir.

Q. Who did you vote for ? A. I voted for Gen. Chalmers and Harrison and Morton.
I think them the men, but I voted the Chalmers ticket.

Q. About how many colored men were here on that day ? A. Well, sir, there was
near 250 ; satisfied of that. I know it because our secretary taken down the names,
I think, of 49 that was here ; I know that to be a fact.

Q. Do you mean 49 or 249 ? A. I meant 249. Well, they was around here same as
blackbirds, around the depot till dark. Every man that's here can testify; if he'll
speak just like it was he'll say so too.

Q. Did you kuow any colored man who voted the Democratic ticket on that day?
A. Well, we had a watch, and at the best of our discovery there was one we thought
that he was a little crooked.

Q. Who was he? A. He was a little crooked-legged fellow by the name of Sam.
Doyle. Ho took a Republican ticket, and I think he taken two; satisfied he did
H. Mis, 137 24

370 CHALMERS VS. MORGAN.

took a Democratic and a Republican ticket and we thought from the way he acted
he was going to slip in a Democratic ticket. He was living around Mr. Foster's, a.nd
come here with a Cleveland hat on, and from the way he acted on the outside we
thought probably he voted the Democratic ticket ; at least we didn't have no belief
in him at all. He went up with some men. to vote, but he kept dodging around, and
from the way he acted we thought it was a little doubtful about him voting the lie-
publican ticket.

Q. Could you tell me how many white men were here to vote ? A. I couldn't tell
correctly, but I am satisfied there was '20 to one.

Q. You mean 20 colored to one white ? A. Yes, sir ; there were so many that looked
dark ; there was so few white men that they looked dark.

Q. The judges gave me only 106 votes and judge Morgan 257 ; in your opinion, was
that a fair count or not? A. No, sir; I couldn't say that, because I knew and w;i.s
satisfied the votes we cast here that it couldn't, be that, just couldn't be that, that
is if they counted them correctly; if the votes got to them there was sometLing
wrong.

Q. In your opinion, did they count this box fairly in 1884 when Bin i no run for
President and 1 run for Congress ? A. Well, sir, 1 must speak the truth 'cause I'm
sworn, 'cause I've got to die; no, sir; I can't say it was a fair election, because the
maneuvers, in my judgment, didn't show to be it was fair, and of course I can't say it.

Q. How long have you been voting at Horn Lake box ? A. I voted here in '66,
first vote ever I cast ; since I been pronounced a free man I vote right here.

Q. When was the last fair election, in your opinion, held at Horn Lake? A. No,
not '75 ; '69, I believe; no, we had two elections; since the surrender things wont
pretty well.

Q. In the race between Alcorn and Ames which occurred in 1873, who had the ma-
jority at this box, Republicans or Democrats? A. Republicans.

(Objected to by Foster.)

Q. Wh<* had the majority counted since 1875 at this box? A. Well, the Repub-
licans always have been in the majority here at this box.

(Objected to.)

Q. Have they been counted that way ? A. No, sir.

Q. It's your opinion they have always been in the majority here at this box? A.
I know it ; you may call every man in this district and you'll find there is more col-
ored people here than white people ; that shows for itself.

The number of Democratic voters at this box is shown as follows :

Deposition of W. H. Boltou (white), a witness on behalf of the contestant; being
first duly sworn deposed as follows ;

Direct examination by Gen. CHALMEKS :

Q. Are yon a Democrat or a Republican ? A. Democrat, sir.

Q. You voted for Judge Morgan, did you not, at the last election ? A. Yes, sir.

Q. Here at the Horn Lake box ? A Yes, sir.

Q. Do you remember the primary election between Slack and Oglesby and Cook
and others for district attorney here in Idb7 ?

(Objected to on the ground that he didn't allege anything in the notice of contest
about the names of Slack and Oglesby and Cook.)

Q. Then I'll a.sk if there was not a race between five candidates for district attor-
ney in this county ? A. Yes, sir.

Q. Was that or not an exciting contest, and did it or not bring out the full Demo-
cratic vote at this box ? A. I think it did, sir.

Q. The vote as appears from the Heruando paper at Horn Lake box was a hundred
and fifteen; is not that as many as the Democrats ever polled here at any primary
election? A. I expect it is, sir,

Q. Do you know of more white people who are Democrat voters in this beat tliau
that ? A". There might possibly be a lew more than that.

Q. Did you hear any comments at the last election as to whether all the white
voters we>'e here or not ?

(Objected to.)

A. 1 heard the conversation over there, and I heard some say there were several
that did not come here naming them but I don't know who they are.

"Now, if we take 248 from the total vote polled, 363, it leaves exactly
115, which Boltou, a Democrat, says is the full Democratic vote here.
The history of this box shows that it is notorious for fraud. In the
Buchanan-Manning contest the box was taken from the presence of the
United States supervisor, and when he followed it he was cursed and
abused and threatened with a pistol. The box was rejected for fraud

CHALMERS VS. MORGAN. 371

by both the majority and minority reports in that case. (See Digest
Election Cases, 18SO- ? 82, pp. 296 and 325.)

Direct-examination by Gen. CHALMERS :

Q. What is your name? A. J N. Boltou.

Q. What is your age and profession! A. I am 59 years old ; practice physics; do
most anything that conies to hand.

Q. Where do you reside ? A. I reside in the state of Horn Lake.

Q. Were you present at the Congressional election held here Nov. last? A. I was
here in the town part of the day.

Q. What is your politics? A. I am an Old-Line Whig.

Q. Do you Imow any colored man at this box who votes the Democratic ticket ? If
so, please state what his name is. A. I do cot know one.

Q. Were you, or were you not, United States supervisor at this box in 1884 ? A.
Yes, sir.

Q. Do you remember what was the difference between the white and colored voters
at that time?

(Objected to.)

Q. Please state as near as you can what occurred at that election, and whether in
your opinion it was a fair election at Horn Lake box, and, if not, what your reasons
are? A. I don't know, Gen,, that I understand your question exactly. They went
on, voted until 6 o'clock, and after they shut the box they pushed Mr. Wooldridge,
put out the light, and we all came in the dark ; and when they counted the box they
had it very different from what I thought it would be.

Q. Explain more fully what you mean by putting out the light, and what was done
at that time? A Well, Mr. Wooldridge said that he had promised Mr. Batte that he
wouldn't have any light through the front room and he blowed the light out, and
Mr. Clinton picked up the box and started out ; aud Mr. Granberry pushed me out,
said he'd follow the Dr. out, and they carried the box up to my house, and after sup-
per counted it out, but I didn't think it was the box they voted in.

Q. When were the boxes changed, if they were changed ? A. As they went out.

Q. Were there or not more colored voters who voted here that day than were
counted for me or for the Republican party ? A. I think there were ; I stayed in the
room all the time, and I think there was more colored voters than there was white
men that day.

In addition to this, it is shown that the certified list of voters, which
was the record of those who voted, was destroyed by the friends of cou-
testee at his home. E. W. Smith, one of the commissioners, says :

Cross-iuter. 4. What was done by the election commissioners with the returns of the
last November election ? Ans. They were placed in the vault of the circuit cle v k,
and I afterwards, when assisting the circuit clerk in his office, had occasion to clean
up the vault, emptied the ballot-boxes and burnt the contents, aud replaced the boxes
in order in the vault, not knowing of any law requiring us to keep the returns any
definite or stated time.

Cross-inter 5. Were the lists of voters at each box among the contents of the bal
lot-boxes destroyed? Ans. I don't know about that. I never examined it.

Cross-inter. 6. Do you not act as deputy circuit oourt clerk for De Soto County, and
were you not so acting when you aided in destroying the contents of the ballot- boxes,
as you have described ? Aus. I was assisting Mr. Maxwell, but not as regularly ap-
pointed deput\ .

Cross-iuter. 7. You destroyed all the papers and documents returned by the various
inspectors from the different boxes, did you? Ans. I emptied the ballot-boxes on the
floor aud destroyed the contents, with the exception of the poll-books.

Cross-inter. 8. If any list of the voters was kept at each voting place, and such
lists had been returned to you or the commissioners, they would have been in the
ballot-boxes with the rest of the papers, would they not? Ans. They would.

This is certainly enough to vitiate the returns at this box. The proof
of the vote is that the negroes belonged to Republican clubs and had
selected two men, Joe Kutlaud to issue tickets, and H. H. Hill to take
down the names of those who received them, in order that they might
prove their vote if it was stolen. Kutland was not examined because
he had gone from the State to teach school. Hill proves that 249 Re-
publican tickets were issued by Rutland to men who went with them to
the polls to vote, aiid that only one was suspected of not voting them.
That ho aud Rutland took down the names of the voters and preserved

372 CHALMERS VS. MORGAN.

the stubs from which the tickets were taken. He swears that he knows
the handwriting of Rutland, and that these names were written partly
by Eutlaud and partly by himself. He files as exhibit to his deposi-
tion, the list of voters thus kept, and the stubs from which the tickets
were taken. (See Kec., pp. 40-44.)
Tom McCain says:

Cross-examination by Mr. FOSTER :

Q. Do I understand you to say, then, that there hasn't been a fair election held here
since you beat the governor? A. Not as I know, Mr. Foster; I know this, and you
may take t lie books and it will show up that way, there are more colored people here,
and there are more of us vote here, and we are always behind; you can call it as you
please.

Q. How do you know that all of these 250 negroes voted the Republican ticket?
A. We had men watching and we had Republicans giving the tickets, and saw where
they carried them and saw when they handed them in, and we saw them go in at the
window.

The proof shows 248 votes for Chalmers and 1 for Morgan:

From this proof the returns should be rejected, and 248 added to

Chalmers, 256 taken from Morgan. The returns here were, Chalmers,

100 5 Morgan, 257. The count stands

Chalmers.

Morgan.

5 788

13 877

Horn Lake:
Add

142

Deduct

256

5,930

13, 621

Nwbittfs. W. W. Bullard, United States supervisor, says the colored
inspector here was a Democrat. (Eec., pp. 130 and 131.)

Q. What name appears on the list prepared by you since the election for you to
testify by ? A. Eli Walker.

Q. Is there any other difference? A. Yes, sir; he is marked '' C. D.''

Q. Is there any letter " C. D.'' on the original list prepared by you ? A. No, sir.

Q. Is there " C. IV on the list prepared by you since the election ? A. Yes, .sir.

Q. What does that t ~C. D." indicate ? A. It indicated that for "Colored Demo-
crat "

Q. Isn't it a fact that yon put that a C. D." there after you had been told and
talked about that Eli Walker had voted the Democratic ticket? A. Oh, no, sir.

Q. Whj, then, did you not put it on the original list kept by you on that day ? A.
Because I didn't see , I inquired among the ticket issuers that come up a cotact about
which way he voted, and he didn't get a ticket from the oue who issued Republican
tickets.

Q When did you find that out ? A. I found that out the next day.

Q. The next day after the election you found out he didn't get a ticket from the
Republican bosses and then you placed him down as a colored Democrat; is that
right?- -A ifes, sir; all we wouldn't count for getting a ticket we just counted them
the other way.

Neither Walker himself nor any other witness is called to disprove
this. Again Bullard says Walker could not read or write.

Q. Can Eli Walker read and write? A. Not to my knowing. (Rec., p. 102.)

Neither Walker nor any other witness is called to prove that he could
read or write. The Democrats refused to appoint the inspector asked
for by the Republicans, and appointed this Eli Walker.

Again Bullard says :

A. The majority voted Republican for this reason: The club, it instructed that
every ticket must be voted with open, and as they were handed in every colored 111:111
excepting two handed their tickets in open, and they had to bo folded up after they
were liauded iu the window.

CHALMERS VS. MORGAN. 373

Q. What two were they? A. Taylor Cansellor was one that voted his ticket folded
up and Eli Walker was the other. He didn't hand his ticket in ; he had his ticket in
the room there; he was judge.

Q. You say the Republican club had instructed all the members to yote an open
ticket ? A. 'Yes, sir.

Q. And all the colored men, except two, did vote an open ticket? A. Yes, sir.
(Rec., p. 102.)

Vincent Smith says :

Q. D id you vote at the Nesbit box of last Nov. election for Congressman ? A. Yes,
sir.

Q. Who did you vote for? A. Gen. Chalmers.

Q. Did you watch the men voting on that day? A. Yes, sir.

Q. How were they voting the colored men ? A. Well, sir, they seemed to be vot-
ing the Republican ticket, sir.

Q. Did they vote an open or a closed ballot general ? A. Well, the instruction was
to vote an open ticket.

Q. Did they do that? A. As far as I seed.

Q. Did you see Taylor Castler vote ? A. Yes, sir.

Q. What ticket did he vote? A. Republican ticket.

Q. Who did he get it from ? A. Me.

Q. Who did you get it from? A. John Morgan.

W. W. Bullard gives the nameof every voter and his color, and shows
that 182 colored and only 46 white men voted at this box. The Demo
cratic primary election here the year before showed only 48 Democratic
voters at this box. No witness is called to contradict this, and the
certified list of voters having been destroyed, the list kept by the United
States supervisor becomes the best evidence in the case. No witness
denies that there were only 46 white voters here or that 182 negroes
voted open tickets as instructed by their club.

John Morgan issued the Eepublican tickets and saw all but one
handed open to the election inspectors ; ten wererejected. (Rec. p. 131.)

Noah Odum took down the names of the Republican voters and saw
them go with Republican tickets open to the polls; ten were rejected.
(Rec. p. 124.)

He tiles a list of these names and not a single man on the list is ever
called to prove that he did not vote the Republican ticket.

W. W. Bullard further says :

Q. To the best of your knowledge and belief were the ballots fairly counted or
not?

(Objected to.)

A. No, sir ; I didn't believe they were fairly counted.

Q. What reason, it" any, did you have to believe they were not fairly counted T

(Objected to by Mr. Foster.)

A. My reason was I could slightly see the stub-end ticket in counting. I can count
the stub end ticket in calling out; the notched-edged ticket was called Democrat, too.

Q. The ticket that had notches on the ends was read as a Democrat ticket ? A. Yes,
sir. (Rec., p. 102.)

This is the only statement made by Bullard which there is any effort
to disprove.

J. 0. Meharg, a witness for contestee, being duly sworn, deposeth and
saith as follows:

Int. 1. What i.s yonr name, age, and occupation, and where do you reside, and how
long have you resided there, and where do you vote ? Ans. My name is J. C. Meharg ;
:'>? .years old ; I reside in Do Soto County, 4 miles west of Nesbit, and am a farmer; I
have lived there about 27 years ; I vote at. Nesbit's.

Int. 2. Were you, or not, at Nesbit, at the Nov. election, 188R, and what office, if any,
did you hold on that day ? Ans. I was, and was an inspector of the election at that

iiK', and at that box.

Int. 3. Were yon, or not, there all the time on that day from the opening of the

ils in the morning until the ballots were counted out that night, and did you see

374 CHALMERS VS. MORGAN.

the counting out of same? Ans. I was there all day, and saw the ballots conn ted
out.

Int. 4. Did yon see any one read off the Republican tickets, or any of them, and call
out Democratic names?

(Objected to by counsel of contestant as leading.)

Ans. I did not.

Int. 5. If such had been done by any person there would you not have seen and
known it? Aus. 1 would.

Int. 6. Do you know Wallace Bui lard, a colored man ; if so, was he present at the
last election, and did he hold any office; if any place, state what? Ans. I know
Wallace Bollard ; he was present all day until the count was about half over that
night. He claimed that he was a U. S. supervisor ; I never saw his commission.

Int. 7. You state he was there until the count was about half over; please state
where he was the balance of the time, if you know, and if there was any cause for
his not being there until the count was fully made. Ans. I do not know where he
went to ; I know of no cause whatever for his leaving.

Int. 8. Did he or not leave the room while the count was being made ; and, if yes,
how long? Ans. He left the room, but as to how long I couldn't say ; I suppose
twenty or twenty-five minutes.

Int. 9. Was the counting out of the ballots done publicly ? Ans. It was.

Int. 10. Was not the election at that bos conducted with perfect fairness to all the
candidates, and were not the ballots counted fairly ?

(Objected to by counsel for contestant as leading.)

Ans. It was.

Int. 11. Did Wallace Billiard examine the tickets and read them when the count
was being made ? Aus. He did not.

Cross-examined by counsel for contestant :

Cross-int. 1. Are you a Democrat? Aus. I am, sir.

Cross-int. 2. How many elections have you been a judge at Nesbitt box? Ans. I
couldn't say; some eight or ten years; have been serving every election either as in-
spector or clerk; sometimes one. sometimes the other.

Cross-int. 3. Who were the other judges at that box on that day? Ans. Mr.
McKnight and one Eli Walker.

Cross-int. 4. Which was the colored man ? Ans. Walker.

Cross-int. 5. What part did you perform in that election on that day in the han-
dliug of ballots ? Ans. None whatever.

Cross-int. 6. What part did you perform in the counting of the ballots? Ans. None
whatever.

Cross-iut. 7. How far were you from the ballot-box while the voting was going
on ? Ans. Some 2 feet, I suppose.

Cross-int. 8. Were you in front or behind the ballot-box? Ans. I was sitting rather
by the side of it.

Cross-iut. 9. How far was Wallace Bullard from the ballot-box during the day ?
Ans. I suppose some 2, mav be 3 feet ; not over 3 feet, I think, any time during the
day. (Rec., pp. 703-704.)'

Cross-int. 11. Are you willing to swear that yon saw everything that was done
in thf voting and the counting of votes and the handling of ballots which Wallace
Bullard saw? Ans. No; 1 am not willing to swear that. (Rec., p. 705.)

Here is one of the professional election officers, who has been serving
for ten years at this same box and bringing oat Democratic majorities
"where there are only 46 white and 192 colored voters, and where the
negroes suspected they would be cheated, and to prove their vote agreed
to vote open tickets, and did so.

Ed. Ingram, being duly sworn, deposes as follows:

Int. 1. What is your name, age, and occupation, and where do you reside and vote,
and bow long have you resided there ? Ans. 1. My name is Ed. Ingram ; am 34 years
of age : am a farmer, and reside and vote at Nesbitt, De Soto County, Miss., and have
resided there 3 years.

Int. 2nd. Were you at Nesbitt at the last November election ? And if yea, state what
office, if any, you held on that day.? Ans. 2nd. I was at Nesbitt at the last November
election on that day, and was one of the judges of the election.

Ques. 3rd. Were you present from the time the polls were opened in the morning
until the ballots were counted out that night? Aus. 3rd. I was.

Q. 4th. Did one of the inspectors of election or any of the officers of election read off
Republican tickets and call out Democratic names at said election ? Ans. 4th. No, sir ;
they did not.

Int. 5th. Who did the counting of the ballots, aud what were you doing when the

CHALMERS VS. MORGAN. 375

ballots were being read ? Ans. 5. Mr. McKnight did the reading of the tickets ; I would
take them out of the ballot-box and look at and read them, hand them to him, and he
would read them off ; he read them off correctly.

Int. 6. You say he read them out correctly ; please state why you say that so posi-
tively. Aus. 6th. Because I was right near him and would have seen him had he not
read them correctly.

From this it will be seen that Mr. McKnight was the inspector who
read the tickets, and he was never examined to prove that he read them
correctly. Mr. Ingram, who was examined, was one of the clerks. (See
Kec., p. 102.) It was his duty to keep the tally-list as the voters were
read to him. It was no part of his duty to read the tickets or to watch
the reading of them. And it is a self-evident fact that he could not
discharge the duties of clerk, and record the names on the poll-book and
watch the reading and examine the tickets at the same time. On the
other hand, Bullard was United States supervisor, and it was his duty
to watch what was being done. It was attempted to be shown that Bul-
lard went away when the count was but half over, but Meharg says:

Int. 7. You state he was there until the count was about half over; please state
where he was the balance of the time, if you know, and if there was any cause for
his not being there'nntil the count was fully made. Ans. I do not kno\v where he
went to ; I know of 110 cause whatever for his leaving.

Int. 8. Did he or not leave the room while the count was being made ; and, if yes,
how long ? Ans. He left the room, but as to how long I couldn't say; I suppose
twenty or twenty-live minutes.

But the most positive evidence that a fraud was perpetrated here is
found in the fact that men armed with Winchester rifles were telephoned
for and brought from Hernaudo to keep the peace while the count was
being made.

Vincent Smith says :

Q. Did you see the military that was charged that came here on that day ? A. Yes,
sir.

Q. What time did you see them ? A. It was late in the evening, sir.

Q. Were you or not at the train when they came? A. No, sir; I was standing
right along here somewhere on the street.

Q. Did you hear any remark made by those men? A. When the boya got off the
train, got around here at the depot, some asked what did they want us to do ? but I
didn't hear any one return them any answer.

Q. At that time had the votes been counted? A. No, sir.

Q. How many were there in- that crowd ? A. I do not know, sir, exactly.

Q. About how many ? A. It seems to me might have been 8 or 10.

Q. Did they have arms ? A. I don't know exactly. It seems like the guns I've
seen them handle around in Hernaudo there; these 16-shooters. (Rec. p. 32.)

W. H. Rollins, witness for contestee, says :

Int. 6. Did you or not, on the morning of the last election on the 6th of last No-
vember, carry a squad of men to Nesbit, in this county, and, if so, how come you to so
do ; for what purpose did you go ; at what time did you arrive there ; what was done
by you and them while there; and at what time did you and they leave Nesbit ami
return to Hernaudo ? Ans. I did. There was received a telephone message here stating
that they feared some trouble there; that was why I went as a peace officer, Maj.
Dockery, the sheriff, being away. We arrived there just about the time the polls
closeu ; I quartered my men in a store-house and left a guard over them about 25
yards from where the polls were; I then went to the polls and talked to both white
and black. I found that there was no trouble; I then moved my men to the depot
and came back on the night train about 10 o'clock.

Cross-int. 2. Who sent the telephone message from Nesbit's about there being trou-
ble there on election day? Ans. My understanding was that it was Jim G. Dovie.
I don't know for certain.

Cross-int. 3. To whom was it sent? Ans. I don't know ; the operator told me of it.
He didn't say to whom it was sent.

Cross-int. 4. How many men did you have with you? Ans. I reckon there was be-
tween If) and 25, probably not over 15.

Cross-int. 5. Was Judge Morgan, the contestee, aware of your intention to go to
Nesbit's? Ans. He was at the depot when I left, but I never spoke to him. I don't

376 CHALMERS VS. MORGAN.

know that he knew anything about it. I recollect of seeing him on the platform of
the depot when I got on the train.

Cross-hit. 6. Was there not shooting done by your squad of men while at the depot
at Nesbit's? An**. I can't say. There was shooting done in the depot room, and when I
got in the room I had stepped out, I hollered to them to quit that, and wanted to know
who it was shooting ; told them they must keep quiet. Some one spoke and said that
it ain't your squad. It is these other boys that is in here. There were several other
boys from the neighborhood in there with thm.

Cross-iut. 7. Your men were armed, were they not? Ans. They were, but only a
few of them had ammunition of their own. Mr. Woods had the ammunition of fho
needle-guns in his charge, and I told him not to let them have any ammunition until
I had ordered it, or until it was necessary.

Cross-int. 8. Is Jas. G. Dovie, the man who sent the telephone message from Nes-
bit, a white man and a Democrat? Ans. He is.

Cross-int. 9. T. C. Dockery, the sheriff of this county, is a Democrat, also, is he not;
you are one T Aus. He is, and I am.

Re-examined :

Re-int. 1. Did you or not understand from the telephone message sent from Nesbit
as stated, that the colored people there were becoming turbulent without cause, and
tltat that was the reason trouble was apprehended, and that you were wanted simply
to preserve the peace if any effort was made on their part to break it ? Aus, Yes,
sir.

Re-int. 2. At what time did the shooting referred to at Nesbit,in the depot, occur,
and was it, or not, after you had gone to the depot to take the train for Heruando ?
Ans. It occurred after we got there to take the train to come home ; a short time before
the arrival of the train.

Re-int. 3. Was not Mr. Ward, referred to in your answer to Cross-int. 7, marshal
of Hernaudo, and a peace officer ? Ans. Yes, sir. (Rec., pp. 702, 703.)

The returns here gave Morgan 130 and Chalmers only 105. If these
returns were true,there were forty- six white uumand eighty-four colored
on one side, and that they should have been so much alarmed as to tele-
phone for armed men to help them against one hundred and five negroes
is too ridiculous, especially when the proof shows that other boys Jrom
the neighborhood were there armed. See cross-interrogatory 6 and
answer. If, on the other hand, the returns were not true, and the sender
of the telephone message knew a fraud was about to be perpetrated, it
is easy to see why forty-six white men might apprehend trouble from
one hundred and ninety-two blacks who believed themselves roboed of
their votes. This is certainly enough to vitiate the returns here. With
the returns set aside, the proof of the vote is clearly made out that one
hundred and eighty-two colored men were seen to hand open Republican
tickets to the election officers. These returns should be set aside, 77
added to Chalmers and 130 taken from Morgan. If we give him the
forty-six white men and one negro Democrat, the count stands :

Clialmera.

Morgan.

6,930

13, G21

105

130

5, 825

182

13, 491
47

6,007

13, 538

Hernando Depot. Here it is shown that the box was taken from the
presence of the United States supervisor at dinner time, and only 32
votes counted for Chalmers where 114 voters received Republican tick-
ets and went with them to the polls. This is unquestionably enough
to set aside the returns. The only question here is as to how many
votes were proved for Chalmers.

CHALMERS VS. MORGAN. 377

Deposition of A. D. Johnican (col.), a witness on behalf of the contestant, being
first duly sworn, deposed as follows:

Examination by General CHALMERS :

Q. Did you vote at the Hernando Depot box in De Soto County at the last election
for Congressman ? A. Yes, sir.

Q. What ticket did you vote ? A. The Republican ticket.

Q. Did you or not distribute Republican tickets there that day or not ? A. I did.

Q. What instructions, if any, did you give to those who received those tickets?
A. 1 issued them with this instruction " that every one of yon who takes a ticket and
don't want to vote it or don't vote it or can't vote it, bring it back to me, because I am
ordered to return all tickets that are not voted."

(Mr. Boyce objects to this as being incompetent.)

Q. How many tickets did you issue to colored men that day ? A. I issued 114, in-
clml'ng one white man.

Q. How many tickets were returned to you ? A. Seventeen.
Cross-examination by Mr. BOYCE:

Q. How far were you from the ballot-box when yon issued the tickets you have just
spoken of? A. I was about as far as 15 feet ; I reckon about 15 feet.

Q. Were you not at times when you were issuing tickets on that day much more
than 15 feet from the polls? A. After the voting ceased I was.

Q. While the voting was going on ? A. No, sir; not outside of that limit.

Q. Were you not sitting or standing near the southeast corner of the new store now
being put up byMackinvail ? A. I was there for noon after they adjourned for din-
ner^ after the voting stopped.

Q. Were you not there at the time you issued some of the tickets* A. I was not.
Let me correct that. I issued one ticket there and the man went directly to the bal-
lot-box and there was no one to prevent me from seeing him get there; that is, no
one in the way.

Q. In what direction from the window through which the tickets were handed to
the judges, on the day of the last election, were you when you issued the tickets ?
A. In front of the window ; north of the window.

Q. Can you say you saw every voter to whom you issued a ticket on the day of the
last election vote the identical ticket you gave him ? A. Yes, sir.

Q. Is it not a fact that a great many voters were standing at the window at differ-
ent times during the day with their ballots ready to vote, and was not the voting at
times very rapid ? A. They were voting very rapidly.

Q. What about the crowd standing up there? A. The crowd was there, but it wao
so arranged that I could see every one who put his ticket in ; the marshals had a rope
around near the window and each man had to come in through the east eud of the
rope, and of course that would allow each one to come in after the other, which ena-
bled me to see each one distinctly.

Q. Did you see every colored man's ticket as he passed in through the opening left
by thi.s rope ? A. I did.

Q. Did you see every man's ticket that voted at the last election as it was handed
in to the judges of the election? A. At that box I did.

Q. Did you issue a ticket on the day of the last election to John Brown ? A. John
Blown lives out on Mr. Boon's place ? Yes, I did.

Q. Did you see him vote? A. Yes,sir.

Q. Did yon see that he voted the identical ticket you gave himT A. Yes, sir.

Q. How far were you from him when he voted ? A. About the same place I issued
tickets in; about 15 feet.

Q. Are you willing to swear that John Brown could not have voted, and did not
vote, a Democratic ticket at the last election?

(Question repeated.) A. I am willing to swear that he did not vote it.

Q. Are you willing to swear that John Brown had no other ticket in his possession
on the day of the last election other than the ticket you issued to him? A. If he
had any other he voted the one I gave him.

Q. (Question repeated.) A. I don't know ; I will not swear that; he might have
had one in his pocket, but voted the one I gave him.

Q. Are you willing to swear that he did not have in his possession on that day,
and at the time he voted, a Democratic ticket? A. I am willing to swear that he
voted.

Q. (Question repeated.) A. No, sir; I am not willing to swear that; Idou'tknow
what he had in his pocket.

Q. How, then, can you swear that he voted a Republican ticket and not a Demo-
cratic ticket? A. Because I noticed him Irom the time I. gave him the ticket go
directly to the box, and he could not exchange it.

Q. Did you pay that close attention to every person to whom you issued a ticket
on the day of the last election f A. I did.

378 CHALMERS VS. MORGAN.

Q. Will you swear that all the voters all the colored voters to whom yon issued
tickets on the day of the last election during the day didn't have in their possession
and hefore they voted any other ticket tliau the one yon issued to them ? A. I will
swear that they voted the one I gave them. I can't swear that they didn't have any
other ticket or not.

Q. Did the colored men who voted at the hox spoken of by you on the day of the
last election vote open or closed tickets? A. A portion of them voted open tickets
and some closed.

Q. Now, if you knew a number of the colored men who voted at the election spoken
of voted closed tickets, how could you tell at a distance of 15 feet from them whether
the ticket they voted was the identical ticket you gave them or not ? A. Because
they folded them when I gave them to them aud went directly to the box and
handed them in.

Q. Have you a list of the number and of the names of the voters to whom you
issued tickets on the day of the last election ? A. I have a list of SOUK; of the names.

Q. Where is that list ? A. In my pocket

Q. Produce it ?

(Witness produces this list and it is ordered by the court to he made an exhibit lo
his deposition.)

Q. Is this list which you produced the original list that yon kept on the day of the
election ? A. Yes, sir.

Q. Did you write each name as it appears on this paper on this identical piece of
paper on the day of the last election ? A. I did.

Q. Have you the block of stub that you kept on the day of the last election ? A.
Yes, sir.

Q. Produce that.

(Witness produces the stubs.)

Q. Has this block of stubs and this list of names that you have produced here
been in your possession ever since the day of the last election? A. It has, but not in
my room ; it is in my place of business where I work. 1 left it there.

Q. In what place of business do you work ? A. It is in Austin Bell's store when 1
am not teaching.

Q. Did you not leave this block of stubs and this list that you have produced in
Austin Bell's possession since the day of the election? A. 1 left ik in his store, and
everything that is in his store in his charge for safe-keeping.

Q. Do you know where Austin Bell keeps the documents? A- Yes, sir.

Q. Where? A. He keeps them on one of the shelves, the second shelf from the top,
on the south side of his building, on the east end near the stair-steps.

Q. Did you begin on the day of the election and issue tickets to voters as they are
numbered upon this list ? A. No, sir.

Q. Well, then, how can you say that this list was prepared as you issued the tick-
ets on the day of the last election ? A. That is, I had them down.

Q. What did yon have them down on ? A. On a piece of paper.

Q. A piece of paper different from this ? A. Yes, sir. The paper I had was not
clean paper, and was just writing hurriedly down there. Just re-wrote them off on
another piece of paper.

Q. Then the fact is that the list you have produced here purports to be a copy of
the list you kept on the day of the election, is that right f A. Yes, sir ; but not num-
bered the same.

Q. Then why did you swear just now that this list that you here produce is the
identical original list that you kept on the day of the election ? A. This is the origi-
nal list.

Q. (Question repeated.) A. I thought you meant the papers that I had. You said
the list. I thought yon meant the lists that I had. All the papers.

Q. Then you have another list than this that you kept on the day of the election ?
A. Yes. sir.

Q. Produce that list.

(Witness produces that list.)

Q. You have now produced another list of the voters kept by you and of the per-
sons to whom you issued tickets on the day of the last election, have you ? A. Yes,
sir.

Q. Is this last list that you hand mo the original list that yon kept on the day of
the last election ? A. Yes, sir.

(Mr. Boyce hands him the last list produced, which he says is the original list of
the voters to whom he issued tickets on the day of the last election.)

Q. I ask you to state now the names of how many voters appear on the list you
hold. A. Seventeen on this list.

Q. Nowl will ask you to take the first list that you produced aud which you also
testify was the original list of the voters to whom you issued tickets on the last elec-
tion, look at that and tell me the names of how many voters appear on that. A.
Eighty -four names.

CHALMERS VS. MORGAN. 379

Q. To how many colored voters and white voters did yon issue tickets on that day
of the last election ? A. One hundred and fourteen.

Q. Did you issue a ticket to John McEntire on the day of the last election? A.
Yes, sir.

Q. Did yon see him vote the ticket you gave him? A. If his name is not on the
rejected list I saw him vote it.

Q. Then you can't say whether his name is on the rejected list or not, can you ?
A. I don't recollect whether it is or not.

Q. Then I ask you the question, if you saw John McEntire vote at the last elec-
tion ? A. I saw him vote if his name is not on the rejected list.

(Witness is handed the rejected list.)

Q. Now what have you got to say? A. He didn't vote, because I see Ms name is on
the rejected list.

Q. That is the only reason why you say he didn't vote is because his name appears
on what you call the rejected list, then ? A. Yes, sir.

(Witness now marks the exhibits A, B, C, and D, and they are made exhibits to
his deposition.)

Q. When did you deposit these papers that you have marked exhibit A, B, C, and
D with Austin Bell ? A. I left them there on the day of the election.

Q. When did you first see them again after you loft them there? A. Any t ; me I
passed silong up and down the counter and looked up on the shelf I would see them.

Q. When did you next examine the papers that you have marked A, B, C, and D
after leaving them in the possession of Austin Beil ? A. When I found out that I had
to come down here.

Q. When was that? A. Wednesday, next day, I think. I don't recollect what day.
(Rec., pp. 381-382.)

There is an effort made to show that the list of 17 voters was the list of
those who voted, because it was called the original list. There were,
in fact, two original lists, one of those who voted and the other those
rejected. The list of those who voted was written first on a soiled
piece of paper and afterwards copied. Thatthe list of 17 was the list
of rejected voters was shown by the questions asked as to the name of
John McEntire. (See list Exhibits A, B, C, and D, Rec,, pp., 1150, 1151 )
But if there is any doubt as to the list of names the witness swears
positively as to the number, and when the Democratic commissioner
destroyed the certified list of voters all doubt should be resolved
against them. The count here was, Chalmers, 32 ; Morgan, 134 ; 65
should be added to Chalmers and 134 taken from Morgan. And if we
give to Morgan the white votes here the count stands :

Chalmers.

Morgan.

Bronbt forward

6,007

13, 538

Deduct returns

134

Add (as proved).. ,. ..............

5,975
97

13, 404
69

6,072

13, 473

In weighing the proof as to frauds and votes at these two Hernando
boxes, it is proper to remember that Hernando is the home of the " De
Soto Blues," acampaigu military company, composed of "unterrified and
determined Democrats," the "old guard," which is re-organized for
every national campaign, and was reorganized for the campaign of 1888
on October 7, 1888 with D. M. Slocuumb, postmaster at Hernando, as
captain. (See Exhibit B to J. R. Chalmers's deposition, Rec., p. 238 ; see
testimony of D. M. Slocumb, Rec., p. 664, Cross-iutrgs. 1 to 6; see testi-
mony of Sowell Newsome, Rec., p, 1036, Ques. 13.)

There was continual tiring of guns and pistols in Hernando on the
night before the election, as well as on the day of the election, and So-
well Newsome, the oldest white Republican in the county of De Soto, was
afraid to go to the polling place to vote for fear his life would be taken.

380 CHALMERS VS. MORGAN.

(See testimony of Austin Bell, Eec., p. 157 ; see testimony of Sowell
Newsonie, Eec., p. 1036, Inter. 10 and Cross-inter. 1.)

It would naturally be supposed that thecontestee would try by proof to
remove the stigma of such shameful violations of law from his friends and
supporters at his home, but no attempt to do so worthy of notice is dis-
closed in the record, and we must, therefore, either conclude that the
charges are true, or that the contestee in this matter forsook and forgot
his friends and his home, and determined to let the shame of these frauds
rest upon them and upon his certificate. He did not examine John B.
West, the Democratic inspector who bull dozed and intimidated the
United States supervisor at theeleetion. He did not examine Mr.Eiley,
the man who voted the scratched ticket. Yet they were both West
and Eiley within his reach any of the forty days of his time for taking
testimony. He did not explain why his Democratic inspectors on the
day of election appointed a negro to represent the Eepublicans, who
was ignorant and Democratic.

HERXANDO COURT-HOUSE BOX.

Evidences of fraud. (1) There was no Beptiblican inspector, the ne-
gro put in to represent the Eepublicans being illiterate and ignorant,
and voting the Democratic ticket. He did not even live in this voting
precinct. (See testimony of J. E. Walker, Eec., p. 150; see testimony
of Austin Bell, Eec., pp. 156, 157.)

(2) The ballot box was taken out of the presence of the United States
supervisor, and taken off to dinner and supper before being counted,
and the supervisor was intimidated and insulted by John B. West, one
of the Democratic inspectors, who told said supervisor he bad nothing
to do with the election. (See testimony of J. E. Walker, Eec., pp. 150, 151.)

(3) One Mr. Eiley, a "cussin" preacher, voted a scratched Demo-
cratic ticket, and no scratched ticket was counted out. (See testimony
of J. E. Walker, Eec., pp. 151-156; see testimony of J. J. Evans, Eec.,
p. 383.)

Proof of vote. J. J. Evans was the challenger for the Republicans,
and stood where he could see the negroes get their Eepublican tickets
from Mike Robinson, and said voters, after getting their tickets, would
pass immediately by Evans and vote. In this way Evans swears he
saw 157 straight Eepublican tickets voted by the colored men. (See
testimony of J. J. Evans, Eec., p. 383.)

In this statement of the Eepublican vote Evans is fully sustained by
J. E. Walker, the United States supervisor. Walker shows that there
were between 175 and 180 colored voters who voted at this box at said
election, and he gives a list of the colored and white men who voted,
and says that only five negroes were suspected of voting the Demo-
cratic ticket; that the support of the contestant by the Eepublicans
was almost unanimous. (See testimony of J. E. Walker, Eec., p. 151,
and Exhibit A to his deposition, Eec., p. 1148, said exhibit showing
the respective number of colored and white voters.)

The returns here being vitiated, the account stands thus:

Chalmers.

Morgan.

Brought forward

6,072

K!, 473

Hernando Court-House :
Add . ....

C, 121

13, 424

CHALMERS VS. MORGAN. 381

This gives Morgan all the white votes and five negroes, and gives
to Chalmers the vote as proved above.

LOVE'S.

Evidences of fraud. (1) The Republican inspector could neither read
nor write. (See testimony of R. G. Orr, Rec., p. 384.)

(2) The ballot-box was taken out of the presence of the United States
supervisor before being counted, and carried a half mile from the polls
to the house of J. D. Mosely, one of the Democratic inspectors, and
the said Democratic inspector refused to allow the supervisor to follow
the box. (See testimony of R. G. Orr, Eec., pp. 385, 386.)

Proof of vote. The witness. K. G. Orr, saw 112 men vote the Repub-
lican ticket. He is supported in this by Mr. Strong, ticket distributor
for the Republicans ; and Strong also proves that six negroes and one
white man were refused a vote on frivolous pretexts. (See testimony
ot R. G. Orr, Kec., p. 384; see testimony of M. Strong, p. 386.)

The certified returns gave contestant (50, and coutestee 102 votes.
But the above proof shows the vote should be counted as follows:

Chalmers.

Morgan.

Brought forward

6 121

13, 424

Add

Deduct

162

6,173

13, 262

2s"o votes being proved for Morgan at the above box.

OAK GROVE.

At this box, as at all others in De Soto County, the Republicans
asked for suitable inspectors, and they were refused. (See Austin Bell,
Eec., p. 156.) At this box it is proved that a negro who was well
known as a Democrat was appointed as inspector to represent the
Republicans. Dr. W. S. Weisinger, a witness for coutestee, was ex-
amined to prove that there were negroes in De Soto County who were
well-known Democrats. He names fifteen in the county, where are 3,000
negro voters, and among them names Jack Harris at Oak Grove. (Eec.,
p. 751.)

J. M. Weisinger, Democratic United States supervisor, proves that
Jack Harris was one of the inspectors at that box, and the list of voters
kept by both United States supervisors shows that Jack Harris voted
last and just after the inspectors, clerks and United States supervisors,
and was colored. All the other inspectors and clerks were white men.
This refusal of the Democratic commissioner to appoint an inspector
asked lor by the Republicans, and the appointment of a negro Demo-
crat, is under the rule laid down in McDuffie vs. Turpin enough to set
aside the return here.

The Democratic supervisor says :

The election was fair and qniet, and no cheating that I know of.

Cross- int. 12. You don't pretend to say that there could not have been fraud in the
election at that box on that day without your seeing it, do you? Ans. I do pretend
to say that there was no ballot-box stuffing or miscounting of the votes.

Cross-int. 13 How can you say there was no ballot-box stuffing when you say that
you were out of sight of the box during the day? Ans. Every time I left the box
Couway Rutherford, the Republican sin pervisor, was left in sight of it ; and i I' he was
out of sight of the box 3 minutes all day I don't know it. Ho denied having yeu
anything wrong that evening, and 1 saw nothing wrong.

382 CHALMERS VS. MORGAN.

Cross-int. 14. How do you know that Conway Rutherford was in sight of the box
when you were out of sight of it? Ans. I was not out of sight of the box only for a
minute or two at a time and part of that time was in sight of Rutherford.

Cross-int. 15. How many times have you held an official position at that box in an
election ? Ans. Several times. I couldn't be definite about it.

Cross-int. 16. Who were the judges there that day? Ans. I think Simon Walton,
Hoyes Robinson, and Jack Harris were inspectors, and Thad. Oliver and Henry Harris
were the clerks

Cross-int. 17. Were not the Republicans surprised at the result as announced there?
Aus. I think they were from what they said. (Rec., pp. 650,651.)

This statement shows that his declaration that there was no fraud is
made upon the ground that he saw none, and that the Republican
supervisor said that evening that he saw none. But the record in this
case shows that the United States supervisors at Batesville, Como,
and Long-town each said they could see no fraud. But fraud was
proved at each of these places. At Batesville the Democratic inspector
boasted that he changed 20u tickets. At Como the fraud was proved
by calling the voters themselves, and at Longtowu two voters saw the
inspector changing their tickets. But both the United States super-
visors here say that they were busy writing down the names of voters and
examining the poll-books, and this might well prevent them from seeing
what was done when the votes were received and put into the box.
That some trick had been played is shown by the fact that here the
unusual thing was agreed on before the counting commenced of h;i"d-
ing the tickets to the Republican inspector to read, and then the laugh-
ing at him when he read it.

J. II. Weisinger says:

Cross-examined by att'y for Chalmers :

Cross-iut. 1. Where were you during the day? Ans. In the school-house all the
day.

Cross-int. 2. Were you so situated all the day that you could see Stroud ? Ans.
The scat that I occupied or was assigned by the inspectors was in plain view of where
Sti'Otid was all day.

Cross int. 3. How far were you from the box ? Ans. About 6 or 8 feet.

Cross int. 4. It was not an impossibility for Stroud to see those to whom he gave
tickets approach the window where the votes were being handed in, was it? AM.S.
No, sir; it was not impossible; he could see them until they got up to where the
crowd was.

Cross-int. 5. What duties did you perform that day at the Oak Grove box as a U. S.
inspector ? Ans. I examined the poll-books and saw that no name that was duly reg-
istered was rejected, and assisted in keeping a list of all the votes cast, and attended
toother duties; one or the other of us was in sight of the ballot-box al 1 the while.

Cross-int 6. You did not stay with the ballot-box all day yourself, did you ? Ans.
Yes, sir; the ballot-box was in the house all the day, and I was in sight of it nearly
all the time except when called out to attend nature's calls until it was counted out.

Cross-iut. 7. Who did the counting of the votes ? Ans. The agreement we all had
when they started to counting the votes was that the inspectors of the election call
the vote and hand the tickets to the Republican sup. to see that they were called
right ; and I kept tally-sheet to see that they were counted right.

Redirect examination:

Int. 1. You have stated that you started out on an agreement that the inspectors
should read the ticket, hand it to the Federal Republican supervisor and that you
would help keep tally; was this carried out to the end? Aus. It was carried out
until we got nearly through counting the vote; I suppose we lacked about 30 votes,
and then the United States supervisor became careless as to whether he read tho
tickets or not ; they were all handed him however.

Recrofes-exaniiuL'd :

Rfcross-int. Why did the Republican supervisor quit reading the tickets, as you
have said he did ". Ans. Well, that is a question I cau't answer; I didn't ask him,
aii'l don't remember of hearing him say why.

Recross-int 2. Were not the Democrats around the polls laughing at and ridicul-
ing him ? Aus. They were not laughing at or ridiculing him; they were joking him
in a good-natured way. They were laughing at him, and oking him m a good-
natured way. (Rec., pp. (550-651. )

CHALMERS VS. MORGAN. 383

It was evidently a good joke that where 209 negroes and 50 white
men voted the count should show 205 for Morgan, 54 for Chalmers, and
especially when no negro is examined to prove that he voted for Mor-
gan, and the only white man who swears anything about the negroes
voting the Democratic ticket names only eight negro Democrats at Oak
Grove. [Rec., p. 751.]

At this box Thomas Stroud distributed Republican tickets and kept
the stub for each ticket he gave to a voter r and watched the voter go
and put it in the box (see testimony of Thomas Stroud, record 391),
and he exhibits with his deposition the stubs, 209 in number. (See
Exhibits A and B to his deposition. Rec., p. 1151.)

Deposition of Thomas Stroud, colored, a witness iu behalf of the contestant, being
first duly sworn, deposed as follows:

Examined by Gen. CHALMERS :

Q. Did you vote at the Oak Grove box at the last election for Congressman? A.
Yee, sir.

Q. Did you vote the Republican or the Democratic ticket ? A. Republican ticket.

Q. Can you read and write ? A. Yes, sir.

(,. Did you distribute tickets or not ? A. I did. (Record, p. 391.)

*******

Q. How close were you to the polls when you were distributing these' tickets ? A.
Weil, I were told to stay 30 feet from the polls by Mr. John Waltou, the deputy, and
I stayed as near 20 or 30 feet as I could squeeze inside of the polls on front of the
wiudow where they were casting tickets.

Q. Did you try to see how the men voted that you gave tickets to? A. They
voted the tickets I gave them so far as I could see, and the way that I worked to see
how they voted, I made them men stand behind me, behind the trees, and I would
tear off one ticket at the time and give it to the man and said to hold it in your
hand and not put it in the top and keep it where I can see it, if you are a Republican
mau, and I watched them and gave them slow so that I could see. (Rec. pp. 391-392.)

Deposition of Couway Rutherford (col.), a witness on behalf of the contestant ;
being first duly sworn, deposed as follows:

Examination by Gen. CHALMERS :

Q. Did you vote at the Oak Grove box, in De Soto County, at the last election for
Congressman '' A. Yes, sir.

<.,. Did you vote the Republican or the Democratic ticket ? A. I voted the straight
Republican ticket.

Q. Can you read and write? A. Yes, sir.

Q. Did you occupy any official position at the last election ; if so, what? A. Well,
I occupied my position inside of the house.

Q. What officer were you ? A. Supervisor ; United States supervisor.

Q. Were yon connected in any way with the Republican clubs in your neighbor-
hoods? A. I was, sir.

Q. How many clubs were they ? A. Three clubs.

Q. Have you any book showing the names of the three clubs ?-. A. Yes, sir ; I have.

Q. Have you any list of the colored voters who voted there that day ? A. Yes, sir.

Q Does your list show the number of white voters as well as colored ? A. Yes, sir.

Q. Please produce your list and let me examine it. The list of voters, the list you
made on the day of the election, 1 want that if you have it.

(Witness produces a book in which he says the list is.) (Rec., p. 508.)

(See Exhibit; Rec., pp. 1135, 1136, 1137.)

Q. Do you know any white mau who voted the Republican ticket there that day ?
If so, give his name. A. John Hollowman to my knowledge.

Q. Do you know any colored man who voted the Democratic ticket there that
day? A. I do. not, sir.

Q. Did or not all of the men whose name you have read belong to the three Repub-
lican clubs you have mentioned ? A. Excepting one, that was John Holloman ; he is
a white man; all these colored men that I have called belong to the club.

Q. Can you say whether they did or did not vote the Republican ticket there that
day 1 A. They did vote the Republican ticket.

Q. How do you know that? A. The men that were issuing the tickets stood
right there and give them their ticket?) and they came and all stood distinctly from
tin- white voters, aud we had a man there to see that he got no other ticket but the
Republican ticket ; aud they come there with the tickets and their tickets wore cast
there. (Rec., p. 509.)

384

CHALMERS VS. MORGAN.

The history of this box shows that it was rejected for fraud iii 1880
(see Buchanan vs. Manning, Digest Election Cases, 296). From this
the returns should be set aside, which gave Chalmers 54, Morgan 205.
Give Morgan all the whites but 1, and the negro Democrat 50. Add to
Chalmers 148, take from Morgan 155, and the count stands :

Chalmers.

Morgan.

Brought forward -

6,173

13 262

Oak Grove :
Add

148

165

6,321

13, 107

EUDORA.

(1) Evidences of fraud. There was ix> United States supervisor for
the Republicans, because the one appointed refused to act, for fear his
life would be taken. (See testimony of W. G. Beaulaud, Rec., p. 1013,
Re cross- Inters. 1 and 2.)

(2) The uegio inspector appointed to represent the Republicans
could not read and write. (See testimony of Rev. Jobe Harrol, Kec., p.
969.)

Proof of vote. According to the certified returns there \tere 336
votes cast 136 for contestant and 200 for contestee. (See certified
returns, Rec.,p. 741.)

Rev. Jobe Harral, a Democrat, and the only witness who testified as
to the vote at this box, proves that not more than 60 white people
voted at this election, and that there are not more than 100 entitled to
vote there.

He swears that he issued five or six Democratic tickets with Mor-
gan's name scratched and Chalmers's written on (Rec., p. 969), and that
he voted a Prohibition ticket with Chalmers for Congress. No such
ticket was returned. It is returned 136 for Chalmers, 200 for Morgan.
The general fraud proved in this county, the failure to count the Pro-
hibition ticket and the five scratched Democratic tickets, the refusal to
allow the Republicans an inspector of their own choosing, and the ap-
pointment of an ignorant negro to represent them at this box, and the
counting of 200 votes for Morgan when the Democratic primary elec-
tion showed only 121 votes, and when Harrall swears only 60 white
men voted, is sufficient to set aside the return. But two witnesses are
examined for coutestee. Nichols says it is regarded as a white box
(Rec., p. 646). Dr. S. M. Watson says if all the negroes were regis-
tered and voted there would be a small Republican majority (Rec.,
p. 648, cross-interrogatory 20).

In 1886, when Harrall was United States supervise!* there, Chal-
mers beat Morgan more than two to one. (See returns from Rec., 735.)

Harrall declined to be United States supervisor this time, because
he was afraid of his life. He furnishes two lists of the names of 210
persons to whom he and Curtis Neal issued tickets for Chalmers, and
he swears he believes they were voted by them (see lists Rec., pp.
1060, 1061. 1062.) A trick was played, or attempted to be played, on
Harrall by Democrats to get Republican tickets from him, with the evi-
dent purpose of showing that all who received tickets from him were
not Republicans (Rec., p. 64.8.) Harrall knew they were Democrats,
and gives their names (Rec. 3 p. 970), and none of these uaines appear

CHALMERS VS. MORGAN. 385

on the list of those he gives as voting for Chalmers. Chalmers is
counted 136, when the ticket-distributors give the names of 219 who
they believed voted for him. The returns being set aside, and no posi-
tive proof of the vote, the count should be, take 136 from Chalmers and
take 200 from Morgan. The count then stands :

Chalmers.

Morgan.

6,321

13 103

Eudora:

136

200

6,185

12,908

LAUDERDALE.

.Evidences of fraud. (1) The ballot-box was taken out of the pres-
ence of the Republican United States Supervisor, and carried to the
house of one Lauderdale, and the said supervisor was not permitted to
follow the box. (See testimony of Henry Moore, Kec. 393.)

Cross-examined by Mr. BOYCE :

Q. Were yon in the room where the ballot-box was situated all day during the
election while the voting was going on? A. Yes, sir; I was there until noon, sitting
right there till the box went to dinner.

Q. Where were you in the afternoon? A. I was with the box until it went to din-
ner, then I didn't go any further.

Redirect examination by Mr. PATE :

Q. You said that you followed the box to the yard and was forbidden to follow it
any further ; who forbid you ? A. Lovey Glin, Bob Lauderdale, and Geo. Lauderdale.
(Objected to.)
Q. Where was the box taken ? A. It was carried into Dr. Lauderdale's house.

W. L. Glenn, a witness for contestee, was duly sworn, and deposeth
as follows, to wit:

Int. 1. What is your name, age, place of residence, and where do you vote? Ans.
My name is W. L. Glenn ; age, 50 years; reside at Lauderdale, and vote at Lauder-
dale, Do Soto Co., Miss.

Int. 2, Were you present at said box during the day of the election on the 6th of
Nov., 1888? Ans. I was.

Int. '3. Did yon or not hold a position at that election, and if so, what position ?
Aus. I did ; was clerk of the election at that box.

Int. 4. Give the names of the U. S. supervisor and inspector of election t that box
on that day for the Republicans ? Aus. Henry Moore was the U. S. supervisor and
Wash Johnson was the inspector of the election for the Republicans.

Int. 5. Henry Moore stated in his examination for contestant that the ballot-box
at Landerdale was carried to the house of Dr. A. D. Lauderdale at noon on the day of
said election, and that the officers of the election representing the Democratic party
forbade him to follow the box. State what you know with reference to this matter,
and whether or not you went with said box to said place at that time ? Ans. I was clerk
there on the day of the election aforesaid, and at about 12.15 o'c. Dr. A. D. Lander-
dale invited us to dinner. We then sealed and locked the box, giving the key to the
Republican inspector, and went from the store to Dr. Lauderdale's house. At the
an- of Dr. Landerdale we told Moore that we intended placing the box in Dr.
Lunderdale's parlor, which we did. I saw the box placed in the parlor, and told Mr.
i. D. Lauderdale to take a seat in the door. We then went to dinner, and after
finishing dinner, J. R. Lauderdale took the seat of E. D. Lauderdale at the gate.
We told Henry Moore we had no right to ask him into a gentleman's parlor. He
Mailed and went off among the other negroes upon the hill. The Republican inspector
was sitting in the front door of the parlor with the key of the box. (Rec., p. (561.)

H. Mis. 137 25

386 CHALMERS VS. MORGAN.

PROOF OF VOTE CAST.

Henry Moore (col.), a witness on behalf of the contestant, being first duly sworn,
deposes as follows :

Direct examination by Mr. PATE :

Q. Did you vote at Landerdale box at the last Congressional election ? A. Yes, sir.
Q. Did you vote the Rep. or Dem. ticket? A. The Rep. ticket.
Q. Can you read and write? A. Yes, sir.

Q. Did you occupy any official position at that box ? A. Yes, sir; I was supervisor.
Q. Do you know how many colored men voted at that election? A. Yes, sir.
Q. About how many ? A. 60 colored men voted there.
Q. How many white men? A. I don't know.
Q. Do you know how the colored men voted? A. Yes, sir.
Q. How did they vote? A. Rep tickets.

Q. All of them? How do you know they voted the Eep. ticket? A. Because we
was in a club and I seen how they voted their tickets. (Rec. p. 393.)

Upoii this testimony the box is vitiated and there is proved 60 votes
for Chalmers and none for Morgan. The returns here were 27 for
Chalmers and 111 for Morgan. Add 33 to Chalmers and take 111 from
Morgan, the count would then stand :

Chalmers.

Morgan.

Brought forward

6,185

12,908

Latiderdalo:
Add

Deduct

111

6,218

12, 797

STEWART'S.

This box was stolen while in possession of the Democratic inspectors,
and before it had been returned to the county election commissioners.
The result was never certified or made known in any way to the county
commissioners or the secretary of state. The box contained a majority
of 73 for contestant.

R. T. Lamb, a witness for contestee being present, was duly sworn and examined,
as follows, to wit :

Int. 1. What is your name, age, and occupation, and where do you reside and
where do you vote ? Ans. My name is R. T. Lamb ; 35 years old ; am a farmer and
a Democrat, and reside near Walls Station, on the Valley Road, in De Soto County,
Miss., and vote at Stewart's box, which is about 18 miles from Hernando.

Int. 2. Where were you on the day of the Congressional election in Nov., 1888?
Ans. I was at Stewart's box ; I served as one of the judges at that box.

Int. 3. Were you there as such judge from the time the polls were opened until they
were closed and the ballots counted ? Ans. I was.

Int. 4. Did you participate in the counting out of the ballots ? Ans. I did.

Int. 5. Please state how many were present when the ballots were counted out, and
give their names, if you can. Ans. There were seven of us ; myself and Pete Smith
as judges, Adam Rice, a U. S. supervisor of election, Walker Peebles and Will Wil-
liamson were the clerks, and Hanip Royner he was a judge also.

Int. 6. Were the votes counted out and the tally-sheets kept in the presence of those
you have just mentioned? Ans. Yes.

Int. 7. What became of the tally sheets and the ballots after the counting had been
completed and the result ascertained ? Ans. They were put in the box and locked up.

Int. 12. Was the result announced after the ballots had been counted out, and wore
all seven of these judges, clerks, and supervisors present, aud did they or not hear
and know the result ? Ans. Yes.

Int. 14. What become of that box ? Ans. During the night we heard some one in
the room, and an alarm was given and we got up and struck a light to see who it wag
or what it was, and we found the ballot-box gone.

CHALMERS VS. MORGAN. 387

Int. 15. Please state the result of the election at that box. Aus. My recollection is
that it gave the Republicans 73 majority.

Cross-examined by att'y for contestant:

Cross-hit. 1. There was 73 majority, as you recollect, for the whole Republican
ticket, was there not ? Ans. That is my recollection.

From this 73 should be added to Chalmers and the count will then
stand :

Chalmers.

Morgan.

0,218

12, 797

Stewarts :
^.dd

6,291

12, 797

INGRAM MILLS.

This box was never returned, but au election was held, and the only
proof as to the vote shows that 118 colored men voted the Eepublican
ticket with the mime of contestant on it for Congress.

There is no proof of any vote for contestee, and his friends having
stolen the box the presumption should be all against him. We there-
fore claim 118 majority for contestant. (See testimony of J. W. Love,
Rec., p. 389.)

Deposition of J. W. Love (colored), a witness on behalf of contestant, being first
duly sworn, deposed as follows :

Examination by Gen. CHALMERS :

Q. Did you vote at the Ingram Mill box, in De Soto County, at the last election for
Congressman ? A. I did.

Q. What ticket did you vote ? A. Republican ticket.

Q. Did you distribute Republican tickets at that box that day? A. I did.

Q. How many Republican tickets did you distribute that day ? A. I distributed
119. One was rejected. All voted but one.

Q. How do you know they all voted? A. Because I was determined; I had
heard there wasn't justice done at the box and I was determined. I got just where
I could see every one voted that I give one to. I kept them right in the ranks and
saw them put the tickets in the box. (Rec., p. 385.)

A. D. Mclnnis, witness for contestee, was brought before a justice
of the peace at 8 o'clock in the morning with his deposition written out
before hand, and signed before counsel for contestant could get there.
(See Rec., p. 793.) Mr. Haynes says of this :

Q. At what time did you reach Cockrum ; what time of day ? A. At 8.32 in the
morning.

Q. What did you then learu in regard to taking the testimony there? A. When I
arrived at Cockrum at 8.&J a. m. I found Mr Boyce, who said to me that court had
been opened in regular form ; they had taken the deposition of one witness, Esq. A.
D. McGinnis, and the court was in fact then in session, although Presiding Justice
Harrison was then absent, having gone home, a distance of about two miles. He
also stated to me that court had been opened in regular form. When Justice Harri-
son returned I demanded to cross-examine the witness, but my friend, Mr. Boycc,
here, was equal to the emergency, and made the record to show a very plausible ex-
cuse why I could not be permitted to do so; but again, as at Louisburg, when the
court returned, Mr. Boyce moved an adjournment. They took no further testimony
that day, but before final adjournment Mr. Boyce prepared a certificate for the court
to sign and send up with the record, setting forth as a fact that the testimony given
by the witness, McGinnis, had been written in the presence of the court; agent for
contestant, knowing that if this certificate be correct the court must have been
opened that morning by sunrise, asked of the court an explanation ; the court re-
plied in substance that no part of the testimony, neither the questions nor the an-
swers, had been written in his presence while court was in session, or in his presence,

388 CHALMERS VS. MORGAN.

and requested Mr. Boyce to correct the certificate, which I presume he did ; I don't
know.

Q. Is it not the fact that no other witnesses were examined at Cockrum? A. It is.
(Rec., p. 973.)

Mclnnis does uot swear that there was a fair election. He says :

Int. 7. State whether or not the clerks at this box at said election kept tally-sheets,
as required by law, and complete returns were made out and signed by the proper
officers, the vote tabulated, and th<- result declared. If so, and you remember, state the
vote at this box for both the candidates for Congress, Morgan and Chalmers, on the
day of said election. A. 7. The said clerks did keep such tally-sheets that day. The
returns of election had been made out and sigued by the proper officers and certified
to by them. The count had been completed and the vote tabulated, the result pub-
licly declared, the box sealed and put away as stated. The vote for Congressmen
stood as follows, to wit: J. B. Morgan received 148 votes, Jas. R. Chalmers received
63 votes ; Morgan's majority, 65. (Rec., p. 792.)

The box having been stolen the presumptions are against it. The
testimony of the Eepublican ticket distributer being positive that he
saw 118 votes handed in for Chalmers, they should be so counted, as
this proves he received more than the pretended count for him. Xo
vote being proved for Morgan, the count stands :

Chalmers.

Morgan.

6,291

12 797

Ingrains :
Add

118

6,409

12, 797

OLIVE BRANCH.

The evidences of fraud at this box are :

(1) The Republicans had no inspector of election, and no repre-
sentative at all in the election. ( See testimony of Charles M. Oaynie,
Rec., pp. 546, 547 ; see testimony of Henry Wood, Rec., p. 551.)

(2) The ballot-box was taken off to dinner at 12 o'clock by the
peace officer, and was kept out of sight of the inspectors and super-
visors for one hour and a half by H. T. Murry, peace officer. ( See
testimony of H. T. Murry, Rec., pp. 705, 76 >.)

(3) The witness, Henry Wood, testified that it has been the custom for
ten or twelve years to allow one colored man, out of every four offering,
to vote. He has been refused the privilege of voting for each of the
three or four Presidential elections prior to election of 1888. He was
told each time he was marked dead, though he had registered for each
election, and had lived on the same place for forty years. (See testi-
mony of Henry Wood, Rec., pp. 551, 552 )

Proof of votes. Ed. Brown distributed Republican tickets, and saw
119 men to whom he gave said tickets go to the polls and offer to vote
them. The witness knew these to be Republican voters at that box, as
they had been for years.

Henry Wood testifies that he knew these men were legal voters,
many of them, and he had lived there forty years. (See testimony of
Edmund Brown, Rec., pp. 549, 550 ; see testimony of Henry Wood,
Rec., pp. 551, 552, 553.)

This renders absurd the certified vote of 185 for coutestee and 19 for
contestant.

These frauds have been continued for years. (See testimony of
Haynie, Rec., pp. 546, 547.

CHALMERS VS. MORGAN. 389

Deposition of Charles M. Haynie (white), a witness on behalf of the
contestant ; being first duly sworn, deposed as follows:

Direct examination by Mr. PiERSON :

Q Where do you live ? A. I live in the Olive Branch precinct, in De Soto County,
Mississippi.

Q. How long have you lived there ? A. Something over 20 years.

Q. Have you been familiar with political canvasses arid with elections held at the
Olive Branch precinct during that time ? A. I have.

Q. I'll ask you now whether in 1882, and since that time, fair elections have been
held or iiot, and give your reason for your answer ? A. Since 1882 the opposition of
the Democratic party have been totally without representation at the polls. Each
year since that time a very large per cent, of the Republican voters have found their
names erased from the poll-book, and they've been marked, others moved, dead or
gone, and the rale of the inspectors has invariably been, when a voter's name was so
erased or so marked they declined letting him vote ; hence a very large per cent, of
the opposition to the Democratic party has been virtually disfranchised.

Q. You say that the opposition to the Democratic party has not been represented
at the polls. What do you mean by that ? A. I mean that they have neither been al-
lowed an inspector or clerk, but an ignorant, illiterate colored man has been selected
by the county board of inspectors to represent the Republican party, and at the last
election I'm informed the man so selected voted the Democratic ticket voted for
Cleveland and Judge J. M. Morgan.

Q. Were the same conditions existing as to the manner of erasing voters' names
from the poll-book and not allowing them to vote, in 1888 at the election of 1888, as
you have described in your first answer? A. I didn't see the poll-book at the last
election, hence, of my own knowledge, can't say. I was present, though, when quite
a number of voters, or rather, you may put that applications to vote, were refused
for the reason that their names were not found on the poll-book.

Q. I'll ask you whether you knew the men who applied to vote, and whether you
knew where they had voted heretofore? A. Yes, sir; some of them I did.

Q. Where were they voters? A. Olive Branch; men that had lived there for a
number of years, and some of them men that had voted in my presence were refused
to vote at this last election ; just how many I couldn't say.

Q. Was there any organization of the Republican party in your precinct in the last
canvass ? A. There was.

Q. Was it a good or bad organization ? A. I regarded it a good organization.

Q. Did they support the entire Republican ticket ? A. So far as I know they did.
I didn't hear a single dissenting voice amung Republicans.

Upon this proof the returns should be set aside and there should be
added to Chalmers 100 and taken from Morgan 185, the vote returned
for him. The count will then stand.

Chalmers.

Morgan.

Brought forward

C 409

12 797

Olive Branch:
Add

100

Deduct

185

6,509

12, 612

COCKRUM, LAKE CORMORANT, LEWISBURG, AND PLEASANT HILL.

At these four boxes no specific proof was taken. But at these, as at
every other precinct in this county, the Republicans were denied the
inspectors they asked for. In the case of Threet vs. Clarke, this com-
mittee held the law to be as follows :

The committee is of the opinion that where the course is systematically pursued, of
appointing on the election boards to represent the minority or opposition party, per-
sons not indorsed by that party, and as to whose loyalty to the party whose inter-
ests they are expected to guard there is a question, or of appointing persons who are
unable to read and write, when there would be no difficulty in finding men well quali-
fied in these respects, this ought of itself be considered evidence of conspiracy to
defraud on the part of the election officers. This was clearly a violation of the law
on the part of the board.

390 CHALMERS VS. MORGAN.

This law declares this to be evidence of a conspiracy to defraud, but
it is said there must be some further evidence ot fraud to set aside the
returns. We have this much evidence from the history of the district.
It is charged in the notice of contest, and not denied in the answer,
that the Democratic vote at these boxes in the primary election in 1877
was only 371, while they are returned 538 for contestee. In addition
we have the record in the case of Buchanan vs. Manning, which shows
that Pleasant Hill box was rejected for fraud both by the majority and
minority report in that case. (See Digest Election Cases. 1880-'82, p.
296.)

In the case of McDuffie vs. Turpin it is said: "When the law pro-
vides that each of two political parties shall have representation on the
election board of inspectors, it is a provision to prevent dishonest par-
tisans from making false returns." And the supreme court of Missis-
sippi said: "Any practice which may be thought purposely to have
been resorted to for influencing the result" will set aside the returns.
(Word vs. Sykes, 61 M., p. 667.)

The only question, then, is, was this practice purposely resorted to
at these precincts for influencing the result?

If the same thing which was done this year has been resorted to year
after year for many years, this is the best evidence that it was pur-
posely done to affect the result of the election.

Austin Bell proves that the Republicans were denied the inspectors
they asked for at this election. (Rec., p. 156.)

That this refusal has been continued for years is proved by the fol-
lowing testimony. C. M. Haynie says :

Cross-examination by Mr. BUCHANAN :

Q. You say that since 1882 the opposition has been without representation at the
polls. Do you refer to the Olive Branch precinct alone in that auswer ? A. In that
answer I referred to the Olive Branch precinct because the question was confined to
that precinct.

Q Have not the Republicans always been allowed an inspector or judge of the
election by the election commissioners f A. They have not, buthave invariably been
refused the man that they requested to be appointed for each box, and some illiterate
rnan appointed instead of the one they requested should be appointed.

Q. My question was, has not a Republican been appointed an inspector by the
board? Have the board not complied with the law by appointing a Republican in-
spector? A. I'm inclined to think riot, because I've reliable information that the
man who has served for several years voted for Cleveland and Morgan at the last
election, hence I don't think he was a Republican.

Q. And because you were reliably informed that one inspector at the Olive Bnuich
precinct at one election voted the Democratic ticket, or for the Democratic candidate
for Congress, you conclude that the inspectors of election in De Soto County I mean
the commissioners of election for De Soto County have systematically violated their
duty and refused to appoint Republican inspectors, as the law requires that they
shall do ? A. Oh, I didn't say anything of that kind. That question leads to a per-
version of what I said.

Q. Well, I want to understand you. A. State that question once more.

Q. The quest ion has been read over to you ; now what have you to say to it ? A. It
is well known to every man who is familiar with the political methods adopted by the
Democratic party not only for the precinct of Olive Branch, but for every precinct in
De Soto County, that it has been deemed best for the perpetuation of the Democratic
party that no man of any intellect should be permitted to represent the Republican
party at any box in the county.

Q. Yon say it is well known as you have stated ; do you know it to be a fact ? A.
I do.

Q. State how you got your information on that subject? A. From personal obser-
vation.

Q. I hen state from what facts you draw that personal observation. A. Personal
interviews with members of the county board of inspectors, and from personal inter-
views with prominent members of the Democratic party in the county, and from a
personal examination of the books.

CHALMERS VS. MORGAN. 391

Q. State what members of the board of commissioners ever told you that the policy
of the party was as you have stated; give the time and place of such interviews ;
also, state what prominent members of the Democratic party ever made similar state-
ments to you, and give the time and place of such interviews. A. That's a far-reach-
ing question. I will go back of 1882 in answering that question. About 1879 I was
a candidate for chancery clerk on the Greenback ticket in De Soto County, and waited
upon the board I don't remember who were the members of it ; Day was one of them,
though and asked for representation at each box; they refused to do it. As for the
special time, I couldn't give that ; I saw him at his house; I saw him with the other
I saw him with the other members of the board at the court-house in Hernando.
Again, in 1881, I was a candidate for the legislature upon the same ticket, and waited
in person upon each of the members of the board; couldn't specify the days; they
refused again. I was in Hernando, I believe in 1876, I'm not sure, and had a talk
with Mr. Dodson, and insisted that Gen. Chalmers should have representation at the
boxes, and his reply was: "Oh, you have representation every time," or words to
that effect, " but we'll select the men for you." Conversations that I've had with
friends outside of officials as regards the appointments, either as to time or place, I
don't think has anything to do with this case.

Q. So you base your conclusions that the board of commissioners have systemat-
ically violated their duty, as you have stated, upon the above interviews which you
have, as stated, with members of that board, do you not? A. I do not wholly or en-
tirely.

Q. Well, if you do not wholly or entirely base it upon that ground state upon what
ground you do base it ? A. I base it upon the ground that since 1882, so far as I have
been able to learn, not a single man has been appointed that was asked for by the
Republican executive committee of the county.

Q. Have you presented the names of Republicans, and asked their appointment, to
the board yourself? A. I have not.

Q. Then wiiat you know of the matter of the action of the board is not of your
own knowledge, but hearsay, is it not ? A. I have been in frequent consultations
with the executive committee, and have assisted in selecting such men the names
of suitable men to represent the various boxes at the polling places in the county.
Those names were presented by some one selected by the Republican executive com-
mittee to the county board, and I am personally aware of the fact that none of those
names that were sent up were ever appointed none of the persons appointed whose
names were sent up. (Rec., pp. 547,548.)

It will be observed that the Mr. Dodsoii who said in 1882 "We will
select the men for you" is still one of the commissioners of election of
this county, and his name, T. A. Dodson, appears signed to the returns.
(Rec., p. 741.)

This same T. A. Dodson was one of the commissioners in 1880, as the
testimony shows, in the case of Buchanan vs. Manning, when inspectors
were asked for by the Republicans and refused. (See House Miscellan-
eous, first session Forty -seventh Congress, vol. 4, p. 25.)

In a State like Mississippi, where, as we have asserted before, the com-
missioners of election control the whole machinery of election in a county,
the county should be treated as an entirety, and if conspiracy and fraud
are shown in the action of the commissioners this should taint the elec-
tion held at every box where they have denied fair representation to the
other side. It should at least change the burden of proof and compel
the party relying upon the returns to show something more than the
mere returns themselves to sustain their validity. That the commis-
sioners of election of De Soto County denied inspectors of their choice
to the Republicans is clearly proved. That fraud was found at every
box that could be examined is abundantly shown. That one of the
commissioners of election destroyed the certified list of voters is ad-
mitted by himself. That counsel for contestant were prevented by
intimidation from taking testimony at Hernando is also shown, and
this should be considered in connection with the want of testimony as
to these boxes. All these reasons taken together show sufficient
grounds to throw out these boxes. This would take from Chalmers
312, from Morgan 540.

o\)6 CHALMERS VS. MORGAN.

MARSHALL COUNTY.

The notice of contest says:

MARSHALL COUNTY.

I charge that you were very unpopular in the district, and especially so in Mar-
shall Co., where you were charged with having betrayed Col. Manning in his con-
test with me in 1882, aud that you did not receive, within 20 per cent., the Demo-
cratic vote of this county. And yet when Col. Manning received only 1,296 votes out
of a total vote of 3,607, you pretended to have received 2,248 out of a total vote of
3,(>60. And at the East Holly Springs box, where Col. Manning lived and voted, his
majority was only 37, while your pretended majority is 220. And at this box, where
the two candidates for sheriff in 1887 could poll only 181 Democratic votes, you pre-
tend to have received 350 votes. I charge that all manner of fraud was practiced at
every box in this county except Early Grove, and there your friends refused to hold
an election because I would have a majority there of 60 votes. I charge that in this
county I have one thousand majority over you, while 885 majority was counted for
you. And further to show the gross fraud of your pretended vote, I compare it with
the vote for sheriff between McWilliauis and Miller, two popular Democrats, who
brought out the full Democratic vote of the county in 1887 in the primary election.
Byhalia and Watson then voted together, but now are two boxes.

Evidences of fraud. Brief of contestant says :

(1) Mr. A. J. Rylee, a witness for contestee, testified as follows :

Cross-inter. 4 "Is it or not a fact, Mr. Rylee, that you have upon more than one
occasion stated that the means and methods adopted and carried into execution by
the Democratic party of this county in the holding of elections was unfair, fraudu-
lent and unjust as against the parties opposing them, whether that opposition was
Green backers or Republicans?" Ans. " I have, privately and publicly, so far as the
Greenback party is concerned, or as to Republicans when acting in concert with
Greeubackers."

In answer to cross-interrogatory 3 Mr. Rylee swears that in so far as liis knowledge
goes they (the Democrats) use all the means at their disposal for the success of their
party. The witness voted for Morgan, the contestee, in the last election and has been
prominent iu Marshall County politics for the last ten years. (See testimony of A. J.
Rylee, Rec., p. 870.)

(2) In this campaign the Democrats were apathetic and indifferent and the ne-
groes were more alert aud active and better organized than for years. See testimony
of John S. Burton, record, page 573; see circular Democratic executive committee of
Marshall County, record, page 673. Besides, Judge Morgan was unpopular in the
county with the Democrats because he did not heartily support Colonel Manning in
his canvass in 1882 against Chalmers. (See testimony of John S. Burton, Rec., pp.
573, 4, and exhibit B to his deposition, Rec., p. 574. See testimony of C. B. Howry,
Rec., pp. 954, interrogatories 1 and 2.)

And while Morgan was unpopular with the Democrats, tlie Republicans, with a few
exceptions, were hearty in their support of Chalmers. (See testimony of John S. Bur-
ton, Rec., p. 573 (testimony of Geo. M. Buchanan, Rec., pp. 607-610).

And yet Morgan professes to have received 2,248 votes out of a vote of 3,660 in the
county, when Colonel Manning in 1882 could get but 1,296 votes out of a vote of 3,607
in the county, aud at Colonel Manning's own box he, in 1882, received only 37 ma-
jority, and Morgan pretends to have received 257 majority. Morgan's certified vote
is rendered still more ridiculous by the fact that in 1887 a primary election was held
in the county between two very popular candidates to decide which should be the
candidate of the Democratic party for sheriff. There was a very exciting canvass,
and the full Democratic strength was voted. The two candidates only received 1645
votes in the county. Dr. Burton swears that it is. impossible for Morgan to have re-
ceived, in a fair election, more votes than the two candidates for sheriff did. This,
of itself, shows the gross frauds in this county. (See testimony of John S. Burton,
Rec., pp. 582, 583.)

The Republicans were apprehensive that these frauds would be committed, as they
had been often before. They had never been allowed any election inspectors, and
had only the United States supervisors to guard their rights, and if they watched the
man who took the tickets from the box, when the count started, the clerks wonld
make false tallies; if, on the other hand, he watched the clerks, the man taking
tickets out of the box would change or misread the tickets. But the Republicans of
this county did not intend to be thus cheated out of their rights. Chalmers had been
nominated in Holly Spring, and the Republicans of Marshall had imbibed a large
shore of the enthusiasm which prevailed in the nominating convention. They deter-
mined to arrange a plan by which they could ascertain what proportion of the vote
polled at the election was Republican. This plan is best explraiied by the witness
who helped arrange it, Capt. George M. Buchanan. He says :

CHALMERS VS. MORGAN. 393

"A short time before the election our central committee agreed on this plan: That
in order to ascertain as nearly as we could the votes cast by Republicans at the elec-
tion, that we would have one or more intelligent men at each precinct to take charge
of all the Republican tickets and distribute them to the Republicans; at the same
time another man at each precinct, to take down the list of the names of the voters
as the tickets were given to them.. Furthermore, we agreed and did furnish from
our headquarters at Holly Springs a memorandum book for each precinct, or suffi-
cient memorandum books for each precinct, to take down these names, with the in-
structions to parties distributing tickets not to do any electioneering ; to go to some
quiet place in view of the polls where they could write unmolested ; keep an accurate
account, and to give no man a ticket without ho came for it and announced his inten-
tion to vote it." (See testimony of George M. Buchanan, Rec., pp. 598-599.)

It will appear in the examination in detail of this county that this plan was carried
out substantially at each place about which testimony was taken. It will also appear
that there was no particular testimony as to several places, and the reason of this is
also given in the testimony.

Contestant made arrangements to take his testimony as to Marshall County before
Mayor Calhoun at Holly Springs, and gave notice to that effect ; and but for the in-
terference of contestee^s counsel, as hereinafter explained, the whole vote of this
county would have been thoroughly and clearly proved.

BAST HOLLY SPRINGS.

Evidence of fraud. (1) The whole number of votes certified was
444, while the whole number of votes appearing on the certified list of
voters was only 443. (See vote certified for East Holly Springs, Rec.,
p. 743; see clerk's certified list of voters for this box, Rec., pp. 1127,
1128, 1129, 1130.)

(2) The United States supervisor saw one of the Democratic inspec-
tors switching tickets, those taken from the voters being run up the
inspector's sleeve and afterwards falling on the floor, while others were
put in the ballot-box in the place of those dropped. (See testimony of
J. J. Sigmau, Rec., pp. 56i)-670.)

Proof of vote. J. J. Sigman, the United States supervisor, proves
that he knew personally 201 persons whose names appeared on the list
of voters at this box, kept by him on the day of election, to be Repub-
licans, and believes they voted a Republican ticket. Some persons
whose names appeared on his list he did not know, and at the time of
his examination could not tell whether they were white or colored. (See
testimony of J. J. Sigmau, Rec., pp. 569-570.)

Sigmau also files his list of voters, numbering 447.

United States supervisor not allowed to see count in 1880, and 30 per-
sons not allowed to vote. (See Dig. El. cases, 1880-1882, pp. 292-293.)

As will be seen by reference to the primary election figures above
referred to, page 7 of record, the Democratic strength at this box is only
181, and Dr. Burton swears that it was, in his opinion, impossible for
Judge Morgan to get more votes at this box than did these two candi-
dates lor sheriff. (See testimony of John S. Burton, Rec., pp. 582, 583.)

The fraud beiug proven, the number of votes being proven, and the
Democratic strength being shown, we submit the vote as cast is proved
to be as follows :

On this proof the return should be rejected. Counting for Chalmers
his vote as proved, and none being proved for Morgan, the count would
then stand thus :

Chalmers.

Morgan.

Brought forward

6,509

12, 612

East Holly Springs :
Add . .

128

Deduct , . . .

350

6,637

12, 262

394

CHALMERS VS. MORGAN.

The explanation of the 20 illegally rejected votes is this : Captain
Buchanan swears that 43 men who received Republican tickets from
him returned them, saying they had not been allowed to vote because
their names were scratched ofl 1 . (See testimony of Geo. M. Buchanan,
Rec., p. 012.)

Dr. Burton proves that 23 of these were refused their vote at the West
Holly Springs box, and this would leave 20 to be refused at the East
Holly Springs box. (See testimony of John S. Burton, Rec., pp. 576, 577-
1055 et seq.)

WEST HOLLY SPRINGS.

Evidences of fraud. Dr. John S. Burton was United States super-
visor here, and when the count started had the tickets handed him
first Republican tickets and then Democratic ones in blocks of five,
and he inspected each block, and then handed them to the man who
called them out, Dr. Burton checking off each block as it passed through
his hands and as it was called out. He was so particular that once
when the inspector handed five tickets as Republican, and there were
two Democratic tickets in the block, and another time when a block of
five tickets was called to him as Republican, and on looking over them
he found one Democratic ticket, Dr. Burton called attention to the facts
and told the Democrat he was cheating himself. In this way he counted
out 213 votes for Chalmers and 138 for Morgan, Chalmers running 5
votes ahead of his ticket. The result was called out after the count
was completed, as Dr. Burton remembers, as only 35 majority for Chal-
mers. The vote was certified, 168 for Chalmers and 183 for Morgan.
Dr. Burton protested against the result as announced after the count,
but was answered by one of the inspectors : " We kept tally and so did
you, and you are just as liable to make mistakes as we are. (See testi-
mony of John S. Burton, Rec., pp. 577, 578; see exhibit to his deposi-
tion, Rec., pp. 1055-1059.)

Dr. Burton, in his testimony above referred to, proves that there
were 23 negroes who presented themselves at his box to vote and were
refused. They had been registered and voting here from three to seven
years.

Proof of vote. The above evidence of fraud proves the vote, espe-
cially as there is no attempt by contestee to meet it. The vote then
should stand thus:

Add 30 to Chalmers and take 30 from Morgan. Add, also, to Chal mere
23 rejected voters. Burchard says he knew them to be voters there.
Burton says they also claimed at the time to be registered voters there.
Count then stands :

Chalmers.

Morgan.

6,637

12, 262

\Vust IJolly Springs:

Deduct

6,667

12, 232

RED BANKS.

'Evidences of fraud. (1) The Democrats have at Red Banks a set of
tricksters and ballot-box thieves, who are regularly appointed as elec-
tion officers to do such work as is necessary to secure Democratic sue-

CHALMERS VS. MORGAN. 395

cess. They had a clerk of the last election, oue W. M. Burtley, who
weiit to Red Banks from his home in Memphis to help hold the elec-
tion. (See testimony of J. W. Moore, Rec., pp. 636, 637.)

(.*) While two popular Democrats could get only 72 votes. Judge
Morgan pretends to have received 115 votes in the last election. (See
figures of primary vote, Rec., p. 7, and certified vote for Marshall
County, Rec., p. 743.)

And we again assert that Democratic primaries bring out a fuller
Democratic vote than do the general elections, for the reason that a
primary election is virtually the election. This is history and the pres-
ent state of affairs in Mississippi, as the record shows.

Proof of vote. The United States supervisor, J. W. Moore, the largest
planter in Marshall County, proves that he saw 133 Republican tickets
voted at this box at the last election. He also proves that 27 Repub-
lican voters were not allowed to vote because their names had been
scratched off.

He knew the 133 Republican tickets were Republican because, (1)
they were whiter in color than the Democratic tickets and had a fringe
at one end, and (2) because he knew the voters were Republicans.

The vote as shown by the certified returns was: for Morgan, 115, and
for Chalmers, 91. The above proof shows that the vote as actually cast
was : for Chalmers, 133. The returns being vitiated the count should
be

Chalmers.

Morgan.

Forward

6 667

12 232

KedBank:
Add

Deduct . . .

115

6,708

12,117

BYHALIA.

Evidences of fraud. (1) Cannon Bass and Sam Chew, numbers 51
and 333 respectively on the certified list of voters at Byhalia, were
counted as having voted, when, in fact, they were not at the polls that
day, and Cannon Bass was then at home sick, unable to get to the polls,
and shortly afterwards died of his illness. (See testimony of Thomas
Guy, Rec., p. 622; James Ingrain, Rec., p. 616, and certified list of
voters at Byhalia, Rec., p. 1114.)

(2) Ben Ingram is marked on the clerk's list as having voted, No.
376, when he does not live in that precinct, and did not vote at Byhalia
that day. (See testimony of James Ingram, Rec., p. 616.)

(3) Pres. Ingrain's name appears twice on the clerk's list of voters,
Nos. 224 and 304. (See certified list of voters, supra.}

(4) The Republican inspector could not read and write. (See testi-
mony of James Ingram, Rec., p. 616.)

(5) The certified list of voters shows the number of voters to have
been 461. (See Ex. B to James Ingram's testimony, Record, pp. 1114
to 1117.)

Proof of vote. Two witnesses saw 240 Republican tickets given to
that many men whom they knew to be Republican voters, on the repre-
sentation from those receiving them that they wanted to vote them. It
is proved that 190 thus given tickets voted them, as shown by the clerk's
list of voters, supra, and 50 were not allowed to vote because their
names had been scratched off after they had been registered, as they

396

CHALMERS VS. MORGAN.

claimed. (See testimony of James Ingram, Rec., pp. 615,616, and Ex-
hibits A and B to his testimony, Rec., pp. 1114-1117; see testimony of
Thomas Guy, Rec., p. 622.)

This box has been notorious for its frauds for years. In the Buchanan
rs. Manning contest, both the majority and minority of the committee
concurred in the opinion that the ballot-box here was stufied, and
twenty-nine voters illegally rejected. (See House Miscellaneous, first
session Forty-seventh Congress, p. 97, and Dig. El. Cases, 1880-'rt2,
pages 'J96 and 322.)

In the Chalmers vs. Manning case, the Democratic inspectors had
the poll books and refused to hold the election. (See testimony R. J.
Lyle in record of Chalmers against Manning.)

From this proof the returns should be set aside. Add 35 to Chal-
mers and take 302 from Morgan, and the count would stand thus:

Chalmers.

.Morgan.

Forward ............

6 708

12,117

Bj-balia:
* Add . .

Deduct

302

6, 743

11, t-15

WATSON.

Evidences of fraud. (1) There were only 104 votes returned as cast,
and 105 votes were counted out of the box. (See certified vote as to
Watson, Rec., 743; see testimony of J. A. Stephens, Rec., 559-560.)

(2) They refused to allow thirty of the negroes who were old voters
there to cast their ballots, and thus deprived them and the contestant
of their rights under the law. (See testimony of J. A. Stephens, Rec.,
559, 560.

The only question here is as to counting the rejected votes and that
will be reserved for future consideration.

WALL HILL.

The proof is that W7 negroes voted the Republican ticket with Chal-
mers's name on it for Congress, and the man issuing the tickets knew
the men who received them to be Republicans. There were 17 men
who were not allowed to vote, who had been properly registered. (Tes-
timony of D. L. Woods, Record, 623, and Exhibit A to his deposition,
Rec., 1110, 1111.)

The above evidence of Woods shows that the count should be for
contestant actually cast, 107.

At Wall Hill, Chalmers was counted only 80 votes, where 107 were
cast for him, and 17 illegally rejected. Similar frauds were perpetrated
here in 1880. (See Buchanan vs. Manning, Dig. El. Cases, 1880-'S2,
page 323.)

The returns here should be set aside. Add to Chalmers 27, and take
from Morgan 119, and the count will then stand thus :

Clialmer-.

Morgan.

6 743

11 815

Wall Hill:
Add

Deduct

119

(!, 770

11, BSO

CHALMERS VS. MORGAN. 397

CHULAHOMA.

Eepublican tickets were distributed here, as elsewhere iii Marshall
County, to those who announced their intention of voting them. In
this way 278 Republican tickets were issued, the names of those receiv-
ing them being taken down, and the list is marked Exhibit A to the
deposition of Wiley Watson, and is in the record, 1100. This list was
compared with the certified list marked Exhibit B to Watson's deposi-
tion in the record, page 1103, and the names of 248 of those to whom
Eepublican tickets had been issued, as before stated, were found on the
list of those who voted at Chulahoma, as certified by the clerk in Ex-
hibit B, Record, page 1103. And in the list, which is a part of Exhibit
A, above referred to, we find the names of 30 registered voters who
were refused a vote. According to the certified returns, 321 votes were
cast, 121 for Morgan and 200 for Chalmers.

This is another large Republican box where frauds have been con-
stantly practiced. In the Buchanan vs. Manning contest, the United
States supervisor was ejected from the room, for which Bowen, one of
the inspectors, was convicted in the United States court. (See Dig.
El. Cases, 1880-'82, pages 292 and 315, and Case No. 1771, on page 322
of same volume.)

In 1882, in the Chalmers vs. Manning contest, the box was stolen and
carried off, but recaptured, and when counted had 252 majority for
Chalmers. (See records of supervisors, House Miscellaneous, First
Session, Forty-eighth Congress, vol. 19, doc. 48, p. 4.)

The returns here should be rejected. Add 48 to Chalmers, take 121
from Morgan, and the count then stands thus:

Chalmers.

Morgan.

6 770

11 696

Chulaho.ua:
Add ,

121

6,818

11, 575

EARLY GROVE.

No election was held at this place because the judges, or inspectors,
who were appointed to hold the election would not open the box to
receive the votes under the pretense that no justice was present to
qualify them. Dr. Lyle read them the law from the code of Mississippi,
by which the inspectors are authorized to administer the oath to one
another, but they refused to hold the election.

There were 100 voters 70 negroes and 30 whites there who wanted
to cast their ballots for James R. Chalmers for Congress.

It has been the habit of the Democrats at Early Grove for ten years
to refuse to hold an election, or else refuse to return the result when
the chances were for a majority against the Democrats. All this is
proved by testimony of Dr. A. M. Lyle (Rec., p. 187), and ably referred
to in the majority report.

LAW'S HILL.

The certified returns give 94 for Morgan and 12 for Chalmers. This
is a fraud ; 45 Republican tickets were issued to men on the representa-
tion that they wished to vote them. Of this number 38 did vote, and

398

CHALMERS VS. MORGAN.

the others were refused, as a goodly number of the Republicans were
at every precinct in this election. (See deposition of Andrew McG-hee,
Rec., p. 627-'9, and Exhibit A to his deposition, Rec., p. 1053.)

Similar illegal rejections of voters at this box were proved in 1880.

The returns should be set aside. Add 24 to Chalmers, take 94 from.
Morgan, and the count will then stand thus :

Chalmers.

Morgan.

6,818

11, 575

Law's Hill:
Add

Deduct

6,842 I

11, 481

WATERFOKD.

We have here the same discrepancy that we find at almost every
box. There were 229 voters and 230 votes. (See certified list of vot-
ers, pp. 109o-'6; see certified returns for Marshall County, Rec., p. 743.)

There were 136 Republican tickets distributed to Republican voters,
who declared they wanted to vote them, with instructions if they did
not get to vote to return the tickets. Only 28 tickets were returned,
leaving 108 to be voted. The 28 denied the right to vote were refused
because their names had been scratched from the poll-books, and the
contestant should be allowed the benefit of their votes. (See testimony
of E C. Walton, Rec., p. 620.)

These frauds are virtually confessed by failure of contestee to make
any proof as to the vote or count by Moses Pegues, an inspector at that
box, who was examined as a witness by the contestee. (See testimony
of Moses Pegues, Ivec., p. 860.)

The returns should be set aside here. Add 40 to Chalmers and take
162 from Morgan, and the count will then stand thus:

Chalmers.

Morgan.

Forward

6,842

11, 481

Waterford:

Add

Deduct ..

162

6,882

11, 310

HUDSON VILLB.

Evidences of fraud. (1) There were 6 men who were marked as
voting, none of whom lived in this precinct, and 5 of whom were resi-
dents of the State of Tennessee, and none of whom were present. (See
tesiimony of Henry Reason, Rec., p. 636.)

(2) And 13 Republican voters were refused a vote, John Lewis, the
witness, being among the number, though they had been properly reg-
istered. (See testimony of Henry Reason, Rec., p. 638, and testimony
of Jobu Lewis, Rec., p. 633, and Exhibit A to his deposition, Rec., p.
3099-1100.)

(3) Wesley W^oodson. a colored witness for contestee, proved that he
voted a national Republican ticket with Chalmers' name scratched off.
(See testimony of Wesley Woodson, Rec., p. 863.)

CHALMERS VS. MORGAN. 399

This would make au uneven vote at this place. But turning to the
certified return of Hudsonville in the record, 743, we find the Demo-
cratic electors are given 142 votes and Morgan is given 142, and the
Republican electors and Chalmers each received 77 votes. And this
shows that the vote was even all around, if it is to prove anything.
But looking at the first and third evidences of fraud, we see that the
certified returns are without any verity whatever.

The certified list of voters was by accident omitted from the printed
record, but the original, which bears the seal of the court, and is clearly
identified by comparing the numbers on it with the numbers on the list
filed by the witnesses, John Lewis and Henry Reasons, was filed with
the committee.

An examination of this certified list shows a clear case of fraud here.
Seven men who the proof shows were not in the State on the day of
election, and had not been for years in the vicinity of Hudsonville, are
returned as having voted there at this election. This is a similar fraud
to that perpetrated at Byhalia, and the returns here should beset aside.

The testimony of John Lewis and Henry Keasons shows that 91 voters
received Republican tickets from them, and went with them to the
polls. A list of their names is filed, as exhibits to their depositions.

The certified list of voters shows that they all voted, and only one,
Wiley Woodson, who is called as a witness for contestee, says he did
not vote for Chalmers. This is the only one of the several thousand
names giver by the ticket distributers as having voted for contestant
that was called to say he did not so vote. But Woodson says he voted
a Republican ticket with Chalmers's name scratched off, yet no such
ticket appears in the count. Again, John Lewis proves that he had
been duly registered, and offere t to vote for Chalmers, but was rejected.

This supplies the place of Wiley Woodson and shows 91 votes for
Chalmers where only 77 were counted for him.

The returns should be set aside. Add 14 to Chalmers and take 142
from Morgan, and the count will then stand thus :

Chalmers.

Morgan.

Forward . ..'

6 882

11 319

Hudsonville :
Add

Deduct

142

6,896

11, 177

PANOLA COUNTY.
COMO.

Evidences of fraud. It was impossible, on account of the dilatory
cross-examinations by contestee, to examine all the voters in the
district, hence contestant examined the ticket distributers at most of the
boxes, and selected Como as a specimen box, where the voters them-
selves were called and examined. There were here 370 colored, and 133
white, men who voted, but the returns gave Morgan 306, and Chalmers
207.

Two hundred and sixty-nine voters were examined, and of these 257
swore they voted for Chalmers, and 10 who were registered and offered
to vote for him were illegally rejected.

400

CHALMERS VS. MORGAN.

Two only said they voted for Morgan. Contestant was, by dilatory
cross-examinations, kept for thirty days, examining 269 witnesses at
this box, and was proceeding to examine more when stopped by the ob-
jection of time expired.

This precinct was selected because the fraud was so skillfully prac-
ticed here that the United States supervisor was unable to detect it.
The examination of the witnesses clearly exposed the fraud, and this
may be taken as a test and sample of what was done all over the dis-
trict.

The returns here must be set aside and the vote counted as proved,
which is 267 for Chalmers and 2 for Morgan. To do this, adds GO to
Chalmers and takes 304 from Morgan. The count will then stand thus :

Chalmers.

Morgan.

Brought forward

6 896

11 177

Como :
Add

Deduct

305

6,956

10, 872

SPRING PORT.

Evidences of fraud. (1) The Republican inspector could not read and
write. (See testimony of W. S. Lester, Eec., p. 442.)

(2) Manuel Jones saw an inspector change his ticket before putting
it in the box, and saw another man's ticket changed in like manner. It
was charged at the ballot-box that the inspector had changed five
tickets, and the inspector did not deny it. (See testimony of Manuel
Jones, Rec., p. 444.)

Proof of vote. W. S. Lester proved there were 93 names of negro
voters ou the certified list of voters at this box and that four white
men voted for Chalmers. There were 13 negroes who were denied a
vote, who claimed they had been registered and their names had been
scratched oft. (See testimony of W. S. Lester, Rec., pp. 442-'3-'4.)

Tbis testimony is undisputed.

Fraud being clearly established here, the returns should be set aside.

Add 5 votes to Chalmers, take 97 from Morgan. The count will then
stand :

Chalmers.

Morgan.

Forward

6,956

10 872

Sprius: I'ort:
Add . . .... ....

Deduct

6, 9ul

10,775

LONGTOWN.

Evidences of fraud. ( 1) Two witnesses, voters at Longtown, saw their
tickets dropped on the floor and other tickets put in the box in their
stead. (See testimony of Fret Noleu, Rec., p. 430 j Silas Gray, Rec., p.
433.)

(2) The Republican inspector could not read and write. (See testi-
mony of John M. Hewlett, Rec., pp. 539-40.)

CHALMERS VS. MORGAN.

401

Proof of vote. The total certified vote is 211 M organ 157,Chalmers 54.

M. G. Littlejohu, United States supervisor, proves he saw a Demo-
cratic inspector receive 94 .Republican tickets, but could not tell whether
said tickets went into the ballot-box or not, he being behind the box,
which was so high he could not see the handling of the tickets after
they were received. He is sustained by John M, Hewlett. (See testi-
mony of M. G-. Littlejohu, Rec., pp. 542-3 ; John M. Hewlett, Rec., pp.
535-6-7-8.)

The box was taken from the presence of the United States supervisor
both at dinner and supper time.

The returns here must be set aside because clearly vitiated for fraud.
The proofs show that 94 votes were cast for Chalmers, while only 54
were counted. There is no proof of any vote for Morgan, therefore add
40 to Chalmers and take 157 from Morgan, the count will then stand
thus :

Chalmers.

Morgan.

6,961

10, 775

Longtovra :
Add

Deduct -

157

7,001

10, 618

BATESVILLE.

Evidences of fraud. (1) A Democratic inspector, T. J. Mabry, con-
fessed he changed the votes so as to change a majority of 200 for Chal-
mers into a majority of 200 for Morgan. (See testimony of H. C. Wor-
sham, Rec., p. 472; J. A. Thomas, Rec., p. 166 etseq.)

(2) The United States supervisor swears that he was so placed that
he could not see exactly what the fraud was, but he believed it was
going on. (See testimony of Lem. B. Lester, Rec., pp. 989-91.)

(3) It is proved that at this box the negroes are in a majority of two
to one, and there are 30 white people who voted and worked for Chal-
mers. (See testimony of R. M. Kyle, Rec., p. 444.)

The returns here are clearly proved to have been fraudulent and
must be set aside. According to the statement of the Democratic in-
spector, Mabry, there were 200 majority here for Chalmers.

As he is counted only 132 there should be added to him 68 and taken
from Morgan 245.

At this box 81 colored voters were rejected who offered to vote for
Chalmers, and who, when rejected, brought their tickets to contestant,
who was present at this box, and gave him their names, and each stated
then and there that they had been duly registered at this box. (See
list of names, R., 237.) No evidence was taken to disprove this.

These 81 should also be counted for Chalmers. Add 68 to Chalmers
and take 245 from Morgan and the count will then stand thus :

Chalmers.

Morgan.

Forward

7,001

10, 618

Batesville :
Add

Deduct

245

7,069

10, 37.3

H. Mis. 137-

-26

402 CHALMERS VS. MORGAN.

PLEASANT MOUNT.

Evidences of fraud. (1) The Eepublican iiispectof could neither read
nor write. (See testimony of J. F. Buchanan, Eec., p. 291.)

(2) There is the same discrepancy here as noticed in Marshall County.
The returns, page 744 of the record, show 22G votes cast for candidates
for Congress, while the certified list of voters contains only 225 names
(See certified list of voters, Eec., pp. 289-290.)

Proof of vote. J. F. Buchanan, a white man who has lived in the
precinct ever since 1844, and who has been a candidate for office several
times, and who therefore knows nearly all the whites and negroes per-
sonally in the precinct, on being shown the certified list of voters at
the last election, proves that 122 of those whose names appear on said
list are negroes and Eepublicans. He says, further, two white men
voted for Chalmers, and one of these, J. F. Essary, testified he GO voted.
(See testimony of J. F. Buchanan, Eec., pp. 290-5 ; J. F. Essary, Eec., p.
295.)

Another witness, Lemuel Nelson, colored, gives six additional names
of negroes who voted at this box for Chalmers, these names not being
included in the 122 shown by Captain Buchanan. (See testimony of
Lemuel Nelson, Eec., p. 295.)

The proof that the Eepublican inspector could neither read nor write,
and his signature by a cross-mark to the certified list of voters, when
followed by the testimonj 7 of J. F. Buchanan giving the politics of the
voters on the certified list, is sufficient to set aside the returns at this
box.

The returns being set aside takes 126 from Morgan; there is posi-
tive proof by three witnesses, J. F. Buchanan, J. F. Essary, and Lem-
uel Nelson, that they voted for Chalmers.

The testimony of Buchanan and of Nelson clearly shows that all the
negroes whose names appear on the certified list of voters were Eepub-
lican except one, and it is said of him that he sometimes votes Eepub-
lican and sometimes the Democratic ticket.

From this proof it would appear that thirty votes cast for Chalmers
were counted for Morgan, and this not by relying on the color line, but
by the testimony of an uncoutradicted witness, who had lived long in
this precinct, who had been a candidate there himself, and who knew
all the voters.

From this testimony the box should either be thrown out, so far as
the returns are concerned, and three votes counted for Chalmers, or
thirty votes should be added to Chalmers and thirty taken from Mor-
gan, giving one, the Eepublican, and the other the Democratic vote as
proved by Buchanan. The box being thown out, then the count would
stand thus :

Chalmers.

Morgan.

7,069

10, 373

126

6,972

10, 247

TATE COUNTY.

The notice of contest charges :

TATE COUNTY.

This ia the county where, iu 1832, I had a majority of 306 votes and where I was
robbed of my whole vote by the celebrated fraud whereby my vote was certified to be

CHALMERS VS. MORGAN. 403

for J. R. Chalmers and taken from me. In this county there was a primary election
for the nomination of a Democratic candidate for dist. atty.,in which only 1,050
Democratic votes were cast in 1887, and in 1^82 Col. Manning had only 1,166, and
yet you pretend to have received about 1,500 majority. The Tate County Record,
speaking of the election for dist. atty,, says : At Senatobia, Oglesby received 145
and Slack 10 votes, and adds : "Senatobia is Oglesby's home and this vote is a hand-
some compliment to his popularity and ability." And yet at Oglesby's home you
pretend to have received 318 votes, where Oglesby and Slack together could only get
155 Democratic votes. I charge that this box was stuft'ed at dinner time when it was
taken from the presence of the U. S. supervisors.

I charge that in this county the inspectors of election were all appointed in viola-
tion of law; that the ballot-boxes were taken from the presence of the U. S. super-
visors wherever we had any; that there was wholesale ballot-box stuffing, and
especially I charge that at Cold water, where I had 170 votes cast for me, the box was
taken to the house of one of your friends and when counted had only 7 votes for me.

I charge that the whole election in this county was a fraud and that the vote of
the county should be thrown out.

All of these charges are fully sustained by the proof.

Evidences of fraud. The election commissioners refused to appoint
any of the inspectors of election recommended by Kepublicaus and ap-
pointed all Democrats in every box but three in the county, and one of
these could not read or write. (See testimony of John 8. Jones, Rec.,
17 and 518.)

He further says that this was repeatedly done by the commissioners
of that county, and in this he is sustained by the record of Buchanan vs.
Manning, where the same thing was done in 1880.

E. L. WeeLS, one of the witnesses for contestee, not only shows that
inspectors were asked for by Colonel Jones, but tells why they were
ot appointed, as follows :

Int. 7. Did you hear any conversation between any two members of the board of
flection commissioners for Tate County at or about the time they were appointing
ispectors for the election of 1888 as to the fitness of men recommended for inspectors
>r th<; Republicans? A. 7 I heard a conversation amongst all three of them while
be board was in session. Smi1h was not satisfied with the persons John S. Jones, chair-
lan of the district Republican committee, had made to him personally ; he said that
>me of them were bad men and he could not appoint them. Record, 909.

Smith was the commissioner appointed by Democrats to represent
the Republicans.

The brief for the contestee says :

Smith is a Republican from principle, and well knowing Jones and his mercenary
litics, repudiated and spit upon his suggestion and made his own appointments.

This is sufficient to show that he was a mere tool of the Democrats
two of three boxes where there were Republican inspectors the box
ras removed from the presence of the United States supervisors, and
'ie majority threw out these two boxes.

TAYLOR'S.

At Taylor's the ballots were never counted, the box having been
stolen by the friends of the contestee. But this was not done without

protest. John C. Clifton, the United States supervisor, made as gal-

int a fight for the box and for an honest, fair election as any man ever
lid. He followed the box to the house of W. S. Bailey, one of the

emocratic inspectors, and was there told by said Bailey to get his din-
ler in the kitchen. This insult brought about a difficulty some time after
the election, in which Bailey shot and wounded Clifton, who has since

sen confined to his bed from said wound. (See testimony of John C.
)lifton, pp. 189-191.)

The legal majority against the Democrats at this- box, when fairly

404

CHALMERS VS. MORGAN.

counted, is about 100. (See testimony of Jolm S. Jones, Eec., p. 518.)
Clifton gives the name and color of the voters 145 colored and 30
white.

This is evidence ot gross fraud and, added to the refusal of the com-
missioners to give the Republicans any inspectors they asked for, tends
to prove a conspiracy to defraud and a determination to carry this
county at all hazards, and hence where any doubt arises as to the
sufficiency of proof of fraud at any one box, the benefit of that doubt
should be given against the fairness of the count.
The count here should be Chalmers 145 and Morgan 30.

Chalmers.

Morgan.

Forward . .. . ..

6 972

10 247

Taylor's, add ... ....

145

Total

7 117

10 277

COLD WATER.

At this box 1C5 negroes voted open tickets for Chalmers and called
out the name of Chalmers when they voted.

In his speech, made shortly before the election, he asked that all who
voted for him should call out his name when they voted and this was
done for that reason.

The witness Dailey also voted for Chalmers. The box was taken at
dinner-time to the house of a Democrat named Bailey, and when
counted was returned 275 for Morgan and only 7 for Chalmers. Mr.
Bailey, to whose house the box was taken for dinner, seems to have
known what the count would be here, as he had offered to bet before
the election that Chalmers would not get over 7 votes at this box.

Dailey voted for Chalmers and distributed tickets and saw 165 voted
for him, a list of whose names he gives. (See E., 500-502.)

This box should be rejected, and, counting the vote as proved, we add
149 to Chalmers and take from Morgan 275. The count will then stand
thus:

Chalmers.

Morgan.

Forward

7,117

10,277

Cold Water:
Add

149

Deduct

275

7,266

10,002

SENATOBIA.

The ballot-box here was removed at dinner time to the house of one
Walte, and taken from the presence of the United States supervisor
against his protest. (See testimony of Gr. W. Haynes, E., 525-7.)

The record of Buchanan against Manning shows that the same thing
was done here in 1880, and that the box was then taken to the residence
of this same man Waite. (Dig. El. Cases 1880-'82, p. 333.)

At Senatobia the contestant received, according to the certified re-
turns, only 44 votes, and Morgan 318, out of a total of 364 votes, when
it i,s proved that 200 or more negroes voted there, and when it is charged

CHALMERS VS. MORGAN. 405

in the notice of contest and not denied in the answer that, in 1887 there
was a primary election lor the nomination of a Democratic candidate
for district attorney, the contest being between two candidates, Oglesby
and Slack Oglesby receiving at Senatobia 145 votes and Slack 10;
and the Tate County Keeord, a Democratic paper, in speaking of said
election, declared: "Senatobia is Oglesby's home, and this vote is a
handsome compliment to his popularity and ability."

The returns here must be rejected, and, there being no proof of the
vote, none can be counted. This takes 44 from Chalmers and 318 from
Morgan, and the count will thus stand :

Chalmers.

Morgan.

Forward ..:

7,266

10, 002

318

7,222

9,684

SHERROD'S.

At this box the Republican inspector was a negro, who could not read
or write. The Democratic inspectors were seen changing the tickets,
and the box was removed from the presence of the United States
supervisor Lsfore it was counted.

Deposition of C. A. GRAYSON (white), a witness on behalf of the contestant, be-
ing first duly sworn, deposed as follows :

Examination by General CHALMERS :

Q. State your age, your occupation, and your residence. A. I am 45 years old ;
my occupation is farmer and merchant ; residence, in Tate County.

Q. Were you at any box at the election ; if so, state what box, and what position,
if any, you held there ? A. I was at Sherrod's box, Tate County. I was U. S. super-
visor.

Q. Please state whether the box was taken away from your presence without your
consent before it was counted. A. Yes, sir ; it was taken away at night. Carried
about one and one-half miles or two miles from the voting place through the raiu,
and they said it was taken to the Bowdre p]ace.

Q. Did you see anything to indicate a stuffing of the ballot-box that day ? If so,
please state it. A. I saw the man that received the tickets f^rom the voters fold a
ticket and put it under his legs slipping it under his legs to one of the clerks or in-
spectors of election. They bad their hands together under there. I could not tell
whether they changed the ticket or not. They discovered that I saw them, and
brought his hand back with a ticket in his hand and put it in the box. They seemed
at different times to place themselves occasionally in position between myself and
the man that received the tickets, with the box setting just before him. I would
move around, got up once and stood up so that I could see that the votes went into
the box, when they asked me why I stood up ; and one of them jerked off a board
told me to set down; there was plenty of light so I could see. The reason I stood
up was for the want of light, so they thought. Also, a colored witness by the name
of Mat White, called me outside the ropes and told me that he saw them changing
tickets and putting different ones in the box.

Q. Is there anything connected with the election at that place that seemed to you
to be wrong? A. It was a very unpleasant and disorderly- held election. Drinking
and cursing on the part of the Democrats ; a great many unnecessary questions and
insulting questions asked to the niggers.

Q. Could the negro ho acted as supervisor for the Republicans there that day
read or write or not ? A. The colored man that was appointed inspector didn't come.
They appointed another nigger, and I don't think he could either read or write. He
appeared to be a very ignorant and dull nigger ; but as for his reading and writing,
I am not certain.

Q. What position have you held in the Republican party in your county ? A. For
6 or 8 years I was chairman for the county committee Republican.

Q. What office have you been a candidate for in your county ? A. Sheriff.

Q. In that election when you were the Republican candidate for sheriff, please

406 CHALMERS VS. MORGAN.

state whether any effort was made to cheat you out of your vote at the Sherrocl box.
State all about it. A. Yes, sir; I was a candidate for sheriff. At 12 o'clock the
Democrats insisted on taking the box and going over to a neighbor's house for din-
ner about half a mile. Myself and my friends Republicans objected to it. They
said they were going, and we could go with them. Couple of my friends did so, one
of them the inspector. When they went in to dinner my friends suggested they had
better takethe box in with them. Theother party said no, leave it in the room. They
left it in the room. When they got into the dining-room one of nay friends took a
seat on the far side of the table, and just as he sat down he looked back into the
room he had just came out of. The door stood open about 10 inches. He saw a
young lady cross to the other side of the room with the ballot-box in her hand. lie
jumped up and said to the boys. "There is something wrong in yonder," and run in
there just as she was handing the box out of the window to some of their Democrat
friends. He turned back and ran out of the door, and run against one that had the
box in his hands, and the fellow that has the box throws it down. His other com-
rade Democrat turus his coat tail over his head and runs off. My friend hollows
to him and says to him, " You need not run; 1 know you." He picked the box up,
carried into the dinner table; kept it by his side; brought it back to the voting
ground ; it was closely watched from that time up till the time the votes were
counted, and my majority when counted out was more than 2 to one in favor of me.
(Rec., pp. 187, 188.)

From this it is manifest that the returns at this box must be set
aside.
Proof of vote. 0. A. Graysou says :

Q. Did you keep a list of the voters there that day ; and if so, what did you do
with it? A. I did sir; and sent the list to W. G. Beauland, chief supervisor of
elections at Oxford, Miss.

Q. Please state to the best of your recollection how many white and how many
colored men voted there that day. A. My recollection is about 140 colored and 40
odd whites.

Q. Is that or not about the full strength of the whole vote at that box ? A. It is
of those that vote the Democratic ticket. There are a good many other white vote is
there, but are not Democrats; don't claim to be Democrats. I know a number of
white men that said they would not go to the eletion because it was useless ; because
they would be counted out. The vote would not be counted properly, and it was a
waste o,f time to go to the election.

Q. Do you know of any colored man at that box who voted the Democratic ticket?
A. I do not.

Q. To the best of your knowledge and belief, and from what you saw and heard
there that day, please state what ticket was voted by the colored men. A. One nig-
ger came up to the polls ; he is classed as a nigger, but I think he is about 7-8 white
man ; he lives with an uncompromising Democrat ; handed in his ticket and stated
that he always voted the Democratic ticket. When I said just before that I knew
of no nigger that voted the Democratic ticket, I don't regard him as a nigger : his
name isWoodsou. I think all the niggers voted straight Republican ticket.

Q. Did you, as U. S. supervisor, object to the box being taken away from the poll-
ing place before it was counted ? A. 1 did.

Q. What is, in your opinion, the majority against the Democrats at Sherrod's box
at a full vote and a fair count ? A. At least one hundred.

Q. Please state why you did not come down to Sardis last week to be examined.
A. I was sick.

Q. W T ere any colored voters at that box rejected that day ? If so, state how many,
if yon can. A. I think about 18 or 20 ; and some of them had been voting there for
10 or 12 years in at that box and had never moved out; one or two on my own
place that had never moved out of the beat.

Q. Upon what grounds were they rejected ? A. They claimed their names were
not on the books. (Rec., pp. 187-188.)

No witness is called to contradict this statement in any respect, except
to excuse the removal of the box. From this proof it is evident that
this was a large Kepublicau box, and the witness says that the negroes
all voted a straight Eepublican ticket, and that there was a majority of
at least 100 here for the Eepublicau party.

From this proof, as but 20 were counted for Chalmers, there should
be added 80 votes to him, and 166 taken from Morgan.

Grayson further proves that 18 voters were rejected here, some of
whom he knew had never moved out of the beat, two of them living

CHALMEES VS. MORGAN. 407

011 his own place. These 18 should also be added to Chalmei-s. Bat
as this was an ex parte affidavit, the box is simply thrown out on the ad-
mission of the witness for contestee that it was taken from the United
States supervisors.

Take from Chalmers 20, take from Morgan 166, and the count will
then stand thus :

Chalmers.

Morgan.

7 222

9 684

Sherwood :

166

7,202

9,518

STRAYHORN.

We have proof from both a Democrat and a ^Republican that all the
inspectors of this box are Democrats.

J. fl. Wornmack, Democrat, and one of the commissioners, says:

Int. 12. Who at Strayhorn ? Ans. 12. Pace and I voted for T. C. Brownlee, a Re-
publican, and elected him, but Smith of our board suggested W. A. Nelson ; after-
ward served as U. S. supervisor at that box. Afterward Z. P. Smith asked us to
re-open the tttrayhorn case, and he would suggest another name ; and we re-opened
that and he suggested J. N. Gregory. We, Pace and I, both told him Gregory was a
Democrat; Smith said he preferred a good Democrat to a sorry Republican, and we
then elected Gregory. (Rec., pp. 899, 900.)

This clearly shows that Smith, the so-called Eepublican commissioner
in this county, was a mere tool of the Democrats.

Deposition of J. A. Williams (wnite), a witness on behalf of the contestant; being
first duly sworn, deposed as follows :

Examination by Gen. CHALMERS :

Q. Please state your name, occupation, and residence. A. My name is J. A. Will-
iams; occupation, farmer, and merchandise a little, and residence in Stray,horn, Miss.

Q. How long have you resided there, Mr. Williams ? A. Have been there in that
settlement for about 20 years.

Q. Did you vote at the Strayhorn box at the last election for Congressman? A. I
did.

Q. What ticket did you vote ? A. Voted the Republican ticket what is called
Harrison's ticket.

Q. Do you know whether the judges inspectors of election were or were not all
Democrats ? A. They were all Democrats. I tried to get one to say he wouldn't
serve tried to get in one of our men and to keep him out. He served lihnself.

Q. Mr. Williams, how many colored men voted at that box that day, to the best of
your knowledge and belief? A. I don't know ; to my best judgment would be 30 or
40 ; didn't pay much attention. There were good many there, though.

Q. Do you know of your own knowledge whether any white men at Strayhorn were
supporters of mine or not ? A. Yes, sir.

Q. About how many of them, Mr. Williams? A. Well, sir, I couldn't say how
many there was ; several said that they did vote. I don't know whether they did or
not.

(Excepted to as hearsay testimony.)

Q. Were you an inspector at that box four years ago, Mr. Williams ? A. Yes, sir ;
I was.

Q. What was my vote there then? A. 92 votes; that is my recollection now. I
think it was 92. (Rec., pp. 515, 516.)

Q. You say that four years ago when you were inspector that Gen. Chalmers re-
ceived 94 votes at that box; please repeat your statement. A. I said 92 was my
recollection.

Q. I stand corrected ; you said 92. Was Gen. Chalmers at that time a Republi-
can ? A. Well, ho was on that list; I couldn't tell you what he was ; I don't know
what he was; he was on that ticket; voted for him; at least on the Republican
ticket what we voted for ; he was on our ticket.

408 CHALMERS VS. MORGAN.

Q. Who do you mean by " we? "A. " We" the Republican party, that is " we."

Q. Whenever there is a split among the Democrats don't you vote for the wedge?
A. Yes, Kir.

Q. Wasn't Gen. Chalmers ;he wedge then? A. Yes, sir, you can call him that if
you want to.

Q Did you hear him make a speech in that canvass ? A. I couldn't say, sir, posi-
tively or not ; might and might not.

Q. Did you ever hear Gen. Chalmers in a public speech declare himself to be a Re-
publican ? A. I don't know that I ever did, sir.

Q At the time, then, that Gen. Chalmers received 92 votes he was running as an
Independent, was he ? A. I never heard it that way.

Q. Washe not running as an independent Democrat-Greenback ? A. I didn't know ;
he was on my ticket, tht? ticket 1 vote, and I voted for him.

Q. You are .successful, then, as an election manager for the man you vote for ? A.
Well, I don't know ; call it successful or what not.

Q. I will ask you to state, whether or not the man in opposition to the Democratic
ticket ever got as much as 92 votes at Strayhorn in any election when you were not
the manager? A. Yes, sir, I think they have.

Q. Name the time and place, and the man that got that many votes in opposition
to the Democratic ticket at Strayhorn when somebody else held the election. A. I
think the highest vote over mine polled there over the Republican party was 98 votes,
sir. (Rec., p. 517.)

This witness proves that the Eepublican vote hew, at a fair election,
is 92; that thirty or forty negroes voted here that day and that some
whites besides himself voted for Chalmers, and yet he was counted only
16 votes.

The contestee attempted to overcome this proof by showing that
some of the negroes voted for him and introduced two witnesses for
this purpose, one a white man, John MclSTeely, and the other a negro.
Jerry Hill, and they both agree in their statement that only two negroes
so voted at that election. (See E. 923-924 and 928.)

This testimony strengthens that of J. A. Williams, and shows that
the Eepublican vote here was not fairly counted.

The appointment of all Democrats as inspectors was itself unlawful
and in direct violation of the statute. And when this is followed by
proof that the vote, as counted, is far below the usual Eepublican vote
at that box, when fairly counted, this is sufficient to set aside the re-
turns.

Take from Chalmers 16 and from Morgan 223 and the vote would then
stand :

Chalmers.

Morgan.

Brought forward

7,202

9 518

Strayhorn t
Thrown out (deduct)

223

7,180

9,293

All the other boxes in this county should be rejected on account of
the refusal of the Democrats to allow the Eepublicau inspectors asked
for, and the appointment of Democrats, and oil account of the fraud
proved. In this county, two weeks before the election, the Tate County
Eecord said :

What did the drum-beat mean ten or twelve years ago ? It meant this negro su-
premacy over whites, and it means the same thing now, under the leadership ot Jones
and Chalmers. Democrats of Tate, can you stand it? If not, up and at them in your
old-time style and with your old-time vigor. The danger is imminent. They are alert
and active. How are you ? We repeat, the danger of losing the county is great.

And yet Chalmers was returned but 435 votes in the county and Mor-
gan 1,490 majority. The proper thing to do would be to throw the county

CHALMEES VS. MORGAN. 409

out as to the returns and count only the vote proved at Coldwater
and Taylor.

LA FAYETTE COUNTY.

The notice of contest says :

LA FAYETTE COUNTY.

This is the county where the Democratic cannon was in 1880 placed in twenty steps
of the court-house and lired across the crowd of negro voters until they were dis-
persed, and where in 1882 L. S. Dillard illegally held back the count for which he was
indicted in the U. S. court and plead guilty and was subsequently rewarded by Mr.
Cleveland with the post-office at Oxford. In this county BOO voters who desired to
vote the Republican ticket for me were disfranchised by erasure from the poll-books ;
400 were erased on the poll-books at the two boxes in Oxford alone, and the U. S.
supervisor, who was present, was marked dead and not allowed to vote. I charge that
this was done after the poll-books were delivered to messengers to be carried to the
voting places, and that some, if not all, these messengers were selected by the aforesaid
postmaster, L. S. Dillard, who in 1882 sent the celebrated telegram, " What is the
latest ? We are holding the count."

These charges are fully sustained by the proof. The history of this
county shows it to be thoroughly Republican. It was the home of L.
Q. C. Lamar, and yet he was defeated here for Congress by 48 votes in
1872, by a Republican. Chalmers carried the county over Manning by
360 in 1882 and it was admitted, by the Democratic district committee-
man and others, one week before the election, that Chalmers would
carry the county by 400 majority, unless something was done to prevent
it. Something was done and what that something was is clearly shown
iu the majority report. It was the disfranchisement of the Republican
voters by the erasure of their names from the poll-books. They were
marked dead, a more merciful killing of Republican voters than is
sometimes practiced in this State. That this was the result of a delib-
erate conspiracy, and that the coutestee was in the county when it was
planned is fully proved.

Faust, a white witness and a Republican, testifies as follows : (Rec.,
pp. 593-594).

Q. Did you hear any conversation from aleading Democrat of Oxford a short time
before the election as to the probable result in that county ? A. Yes, sir.

Q. Please state as near as you can when that was, who was present, and what was
said ? A. Friday week before the election I was in Oxford, having business with W.
V. Sullivan. In presence with Mr. W. E. Avant, in conversation and probably about
our business I had but little with him he asked me how the election was going lor
Congress. I stated that I supposed that Morgan would be elected. He just said,
"You don't know anything about it. Chalmers will beat Morgan 400 votes in La
Fa\ette County if there isn't something done to prevent. I have just been around,
and will have a meeting in my office at 8 o'clock to-night to prevent it, if we can."
That was all that was said. This conversation occurred between us after we left the
office and was standing between the south portico of the court-house and the east
steps. Then we branched out, Avant and him in conversation, to other matters.

He is sustained by W. E. Avent, a white witness and Democrat, as
follows (Rec., p. 956) :

Q. 1. State your name, age, occupation, and voting place. W. E. Avent; 62 years
old 10th of next June ; farmer; La Fayette Springs, Miss.

Q. 2. State whether or not you remember a conversation which took place last
fall in regard to the election a few weeks previous to the election between Mr. W.
V. Sullivan, Foust, yourself. If so, state as nearly as you can what that conversa-
tion was and where the conversation took place ? A. 2. I don't remember any one
being present but W. V. Sullivan, Foust, and myself. We had a conversation with
regard to the coming election. The inquiry was made by Mr. Sullivan how the elec-
tion was going in my part of the county. I told him I thought that there was the
least excitement, it being Presidential election, I ever saw. I went on to state that
I was afraid Mr. Morgan, was not going to get along as well as I would like for him

410 CHALMERS VS. MORGAN.

to do, and we all, I believe, agreed about the matter ; the thing was gettingon pretty
slowly. I believe this was about the chat we had among us. This conversation,
I t hi iik, took place in Sullivan's office. I am not certain ; I suppose we were together
about one hour that day.

Q. 3. State whether or not Mr. Sullivan made any further statement with regard
to the matter? A. 3. Mr. Sullivan stated that he had been around, or was going
around ; was going to have a meeting that night to fix up for the election. I don't
know whether they had it or not.

Q. 4. Was there any request made in regard to you remaining T A. 4. Mr. Sulli-
van asked me to remain, but I did not stay. I don't know whether they had it that
night or whether they had it at all or not.

\Vbo W. V. Sullivan was is thus proved by McKenzie, chairman of
the Democratic Congressional committee. (Rec., p. 655.)

Cross-int. 13. Who is the member of the Dem. ex. com. in this Cong. diet, from La
Fayette County ? Axis. W. V. Sullivan.

That this conspiracy was to erase the names of Eepublican voters
from the poll-books is thus proved.

Beanland says (Kec., p. 594) :

Q. Did you hear anything from any leading Democrats of the county as to the
probable result of the election f And if so state who it was, when it was, and what
he said. A. On or about the 25th of Oct. I heard Webb Harris say the nlqgers was or-
ganizing all over the country and were all being registered to a man, and they, the Dem-
ocrats, were to meet on that night to organize and get on some plan to beat Chalmers.
Something had to be done. On or about the 27th he told me they had organized, and
were to meet that night to set the ball rolling; that if the niggers were organized
they had the books and the count. I conversed with him more or less each day up to
Saturday ; then he told me or I heard him say, they might all be registered, but they
could come up dead ichen it come to vote, which proved to be true. On Sat. night be-
fore the election, in the post-office at Oxford, while waiting for my mail, / heard Lem
Dillard say the nigyers were better organized than they had ever been, but there would be a
good many of them who would come up dead, which proved true. The general talk among
the Democrats that some strenuous effort would have to be used to beat Chalmers.

That all this was done under the direction of L. S. Dillard, who was
commissioner of election in 1882, and who fraudulently held back the
count for which he was indicted and plead guilty in the United
States court, is shown in the majority report. That the contestee was
in the county when this was done is shown as follows :

D. McKenzie, witness for contestee, on cross- examination said, (Rec.,
p. 651) :

Int. 2. What position did you occupy in the organization of the Democratic party
in the election in Nov., 1888, and previous thereto f Ans. I was chairman of the
Dem. ex. com. of De Soto Co., (and also of the 2nd Cong. dist. of Miss. The Dist.
Com.)

Cross-int. 15. What information did you have as to the Democratic and Republican
organization in La Fayette County? Ans. My information was less definite as to the
organization of that county than any other in the district. The Dem. party, my in-
formation is, was not organized until late, but a pretty good organization was re-
ported to me finally. The last week or ten days of the campaign Judge Morgan
spent in that county. As chairman of the dis. com. I specially requested him to give
that county his attention, and he reported it in pretty good fix.

That pretty good fix was the disfranchisement of the Republican
voters, and it is fair to presume that the contestee fixed it, because this
same great outrage was perpetrated at his home in De Soto County in
1880. Johnson, election commissioner of that county was convicted
in the United States court and fined $500 for fraudulently erasing the
names of voters from the registration and poll books. (See Digest
Election Cases 1880 to 1882, Buchanan v. Manning, p. 313.) In this
coijiiectiou attention is called to the following testimony:

By Hon. C. D. Howry, United States district attorney under Cleve-
land (Rec., p. 954) :

CHALMERS VS. MORGAN. 411

Personally came Chas. B. Howry, a witness for J. R. Chalmers, contestant, vs. J.
B. Morgan, coutestee, who, after being sworn, testifies as follows:

Q. 1. Please state name, ase, place of residence, and occupation. A. 1. Chas. B.
Howry; over 21 years ; live in Oxford; a lawyer.

Q. 2. Do yon remember to have been present in the N. E. part of this county when
Mr. Morgan delivered his speech in this canvass with Mr. Manning for the Democratic
appointment at the primary, in which speech he referred to the methods of carrying
elections, using some such language as the following, that he was in favor of success
in the Democratic canvass, even though he had to resort to counting out the colored
vote in order to accomplish it ? Please state in your own words.

(Objected to as irrelevant to the issue and as not having occurred in any canvass
with tho two parties, and if occurred at all occurred years ago.)

A. 2. In 1882 Judge Morgan was a candidate for the Democratic nomination to Con-
gress against Col. Manning, and at Boyd's Springs in Lafayette County the judge made
a speech which I heard. In that speech ho had something to say about white govern-
ment and the necessity for maintaining it. This was followed by a passing remark
that he was just as much in favor of taking advantage of the negro as anybody else, or of
cheating the negroes, if necessary, and this last remark was used in connection with
what he had to say about white government. I understood him to use the word cheat-
ing, but can not say positively that was the precise word. It ivas either that or that
he was in favor of taking advantage of the negro, if necessary. That is all.

And by the following testimony (Eec., pp. 572, 573, 574) :

Q. Do you know of any other evidence of unpopularity of Judge Morgan in Mar-
shall County? A. Yes, sir; when he was running there 2 years ago last fall he
made a speech at Byhalia, in which he touk grounds that the election should be car-
ried, as it always had been, to buckle on a 6-shooter, as he had done, and meet the
Republican voters before they got to the polls, and drive them back, or knock them
down, and ti.ke their tickets away from them. He and a man named Hight got into
an argument about it and Mr. Hight and Judge Morgan published cards.

Q. Have yon got a copy of Hight's card ? A. I think I have, sir.

Q. Will you please file it and mark it as Exhibit B to your deposition ?

Witness does the same.

Exhibit B. John S. Burton.
[Cor. Memphis Avalanche.]

MR. E. M. HIGHT, THE AUTHOR OP THE BYHALIA REPORT, COMES BACK AT JUDGE

MORGAN.

BYHALIA, Miss., September 2.
Editor Avalanche :

While greatly astonished to find in your Tuesday's paper a positive denial from
Judge J. B. Morgan of the statements attributed to him in my Sunday's correspdnd-
ence to your paper, I am, nevertheless, as he has done so, not surprised to see him
resort to that spirit of bulldozing which characterized his most inflammatory speech
in this place on the 23d of August.

In justice to myself, I desire to not only reiterate my every statement relative to
his speech, but I propose to give his utterances more fully and forcibly than I did in
my former letter.

My report was not given from a Republican stand-point, nor from the stand-point of
any other character of partisan, but simply from the holy stand-point of truthfulness.

lu the course of Judge Morgan's speech on the 23d ult. he referred to the negroes
goiug to the polls in squads of ten and the means by which they should be dispersed,
and instanced a time when he, with fifty other men, had buckled on navy sixes and
with hickory clubs in their hands had met the negroes at the polls and insisted that
they vote as they directed, and on their refusal to do so the negroes were knocked
down and dispersed ; that these means had proved effective at that time and would
prove as effective now. In describing the way in which the negroes were knocked
down Judge Morgan exhibited himself and used his arms to illustrate the manner in
which the clubs were used and how the negroes were felled to the earth, and made
use of some such expressions as " Take that, G d d u you ! " when they knocked one
down. Several times did Judge Morgan ask pardon of his audience for the use of his
profanity in their presence. From this part of Judge Morgan's speech I took occasion
to say in the Avalanche that he, Judge Morgan, "alluded in strong and forcible term
to the means to be used in downing the negro voter. That he had found six shooter the
most effective means of driving the negroes from the polls where they refused to vote as di-
rected, and believed that it would now prove as effective as in by-gone days."

412 CHALMERS VS. MORGAN.

In thus making this report I was certainly justified by bis language, if be uttered
it at all. Now the question come up, Did Judge Morgan say anything of this kind
in h : s speech? In his own language he says not, in the following strong statement:

"I desire to say to your readers that this entire statement, with regard to the
' means to be used in downing tbe negro,' is a deliberate falsehood in the whole and
all parts, in its words and in tbe ideas intended to be conveyed. It is the machina-
tion of a vicious brain, whose wish was father to the thought. I never even so much
as alluded to ' the means of downing the negro voter.' I did not state that ' I had
found the six-shooter the most effective means of driving the negroes from the polls
when they refoeed to vote as directed, and believed that it would now prove effective
as in by-gone days.' I not only did uot give utterance to such words at Byhalia, hut
never entertained such views in all the days of my life. Nor did I utter at Byhalia
any words from which any honest man could draw such conclusions as your corre-
spondent presented to your readers."

The above are the words in which Judge Morgan denies my report of his speech at
Byhalia, which places the whole matter in one of the two lights: That Judge Morgan
never referred to the use of navy sixes as a means of driving negroes from the polls
in any manner, and that Marcellus willfully lied in his report of the speech to the
Avalanche; or, that Judge Morgan did make use of the statements attributed to him
and Judge Morgan has willfully lied in his positive denial.

To show that Marcellus has not lied, I desire to say that I am willing to refer the
matter to the people who heard the speech at Byhalia to the people among whom I
live for vindication or condemnation; to the people who enjoy a reputation for
honesty and integrity, to say who has told the falsehood. And as further proof of
the truthfulness of my statements, I append statements from a number of the best
men in this community men whose integrity has never been impeached. Here are
the statements :

BYHALIA. Miss., September 2.

Having listened to the speech delivered by Judge J. B. Morgan in Byhalia, Miss.,
on the night of August '23, 1886, we, the undersigned citizens, hereby state that in the
said, in substance, that on former occasions he, with about fifty other men, had buck-
led on navy sixes, and, with hickory clubs in their hands, had met the negroes at the
polls and insisted that they vote as they directed, and on their refusal to do so they
were knocked down and thus dispersed ; that these means proved effective at that
time, and would prove as effective now.

J. C. MOORE, Jr.

R. J. LYLES.

N. F. STEVENS.

ED. R. REYNOLDS.

G. W. OWENS.

BYHALIA, Miss., Septembers.

Having heard the speech of Judge J. B. Morgan on August 23, 1886, and read the
report of same in the A valance by M*arcellus, we pronounce the said report as not
only correct in substance, but mild in the manner in which it was written compared with the
utterances of Judge Morgan.

CHARLES STANBACK.
PRESS STANBACK.
N. F. STEVENS.
,

Here are the positive statements of a number of the most respectable and trust-
worthy citizens of this community, who directly and most emphatically controvert
the statements of the Democratic Congressman from the second district of Mississippi.
These men will not misrepresent a matter, and no man dare charge them with such
conduct. In addition to this proof I will rest my statements to the honor, integrity,
and honesty of all others who heard the speech and have read Judge Morgan's
denial.

If this testimony is Dot rank perjury the contestee believes in these
Mississippi methods, and he was in this county and on the ground
when carried out.

The contestee had more motive than any other man to have this
fraud committed, and it is proved that he was in the county where it
was done, was sent there to have it fixed and reported it in a pretty
good fix. Jn cases of circumstantial evidence where a mau lias a
motive to commit an offense and the opportunity to commit it, and an

CHALMERS VS. MORGAN. 413

offense is committed, this furnishes strong circumstantial evidence of
his guilt.

Evidence as to erasure of names from poll-books.

Eecord, p. 959, contestee's witness Carothers :

Taylor's precinct "about 400 names stricken from book at R. R.
election. No complaint of election" except that both Republicans and
Democratic voters' names had been erased from lists.

Record, p. 631, witness " Alexander," one of the (reluctant) Demo-
cratic county commissioners:

Q. What is your name? A. J. P. Alexander.

Q. Where do you live? A. At Oxford, La Fayette County, Miss.

Q. What office do you hold in La Fayette County, Miss., if any? A. I am jailer
there; I am one of the commissioners of election.

Q. What are your duties as said commissioner of election? A. It is to inspect the
books.

Q. Do you or do you not have charge of the registration hooks and make them
up ? A. Yes, sir.

Q. Did you see the registration hooks of La Fayette County, Miss., before the Nov.
election in 1888? A. Yes, sir.

Q. In what condition were those books as to their correctness when you last saw
them ? A. I taken them to be coriect, as far as I knew.

Q. At what time before the election did you last see those books? A. Well, sir, I
saw Kee Cummings setting them out the Thursday before the election and Tuesday,
and some I saw on Saturday before the election.

Q. Did you see those books after the election ? A. Yes, sir.

Q. Will you state what was their condition in comparison before the election you
saw them again ? A. They were badly marked up.

(Counsel for contestee objects to this testimony, and asks that the same be excluded,
because the books about which he is testifying are not produced.)

Q. What do you mean by the books being badly scratched up ? A. There are some
of the names that had been on there were marked off.

Q. Did you see any names that had been on those books and that by right should
be on there which had been marked off? A. Yes > sir.

Cross-examination by Mr. BOYCE :

Q. How long have you lived in La Fayette County ? A. About forty years.

Q. When'were you made one of the board of commissioners of election for that
county ? A. This last fall ; I don't remember the time, before the election though.

Q. What are your politics? A. I am a Democrat.

Q. When did you last supervise the registration books to find out that names of
voters which should have appeared on that book were marked off? A. It was after
the election, after they were returned to us.

Q. Did you examine carefully the name of every voter that appeared upon the reg-
istration books for La Fayette County ? A. No, sir ; not after the election. There
were a great many had been erased that I knew there, and the day of the election
they couldu't vote, and it was just those that I examined to see if they were there.

This witness- is speaking of the books generally, including the whole
county. He was the county jailor, had lived in the county forty years,
and says, " There were a great many that I knew there [in the county]
could not vote on day of election j it was just those I examined to see
if they were there."

Word says ( Kec., p. 555) :

Q. I don't exactly understand whether you have stated as near as you are able the
number of colored men who applied to vote at the South Oxford box whose names
had been erased? A. Well, if you will give me a pencil I can make the calculation
ami state exactly. They were 179 that applied to vote and was rejected.

Q. In my question I meant to ask you whether the men had been refused because
of their names being scratched off? A. Yes, sir; that was the cause.

Q. Did yon know any considerable number of the voters? A. I did, sir; know
the biggest part, of them.

Q. Were they Rep. or Dem. voters? A. They were Rep. voters, sir.

Q. How long had they been voting there ? A. Some of them were old men, some
of them middle-aged, some young men, and it was their first attempt to vote.

H. Rep. 2503 6

414 CHALMERS VS. MORGAN.

Q. Where had they lived ? A. They had lived there. Some had just become of
age, and some had been voting there ever since they had been free.

Q. Did you examine any other poll-book in the county of La Fayette except the
South Oxford book ? A. Yes, sir ; I did.

Q. What one ? A. I examined made a partial examination of the Abbeville book.

Q. When ? A. On Saturday before the election on Tuesday.

Q. When was the next time you saw that book and examined it ? A. In the grand-
jury room.

Q. State the difference between the condition of the book, so far as you examined
it, of the Saturday before the election in Nov. and when you examined it after the
election before the grand jury. A. Well. I examined the book from the letter A down
to the letter K. My intention was to ascertain how many names had been erased on
that poll-book from A to Z. I was interrupted by a voter coming in and claiming
that he had voted for a number of years at Abbeville, and the last time that he had
applied to vote there they said that his name was erased, and I only examined down
to the letter K. I found 200 names had been erased down to that letter.

Q. That was on the Saturday before the election ? A. Yes, sir ; and after the elec-
tion, when I examined that book before the Federal graud jury, I found 223 names
had been erased down to the letter K.

Q. Isn't it the habit there to mark dead, removed, &c.? A. Yes, sir.

Q. What did they have on your name ? A. Well, 1 didn't see it dead there, but
they said. L. N. Word, dead.

Q. Who said that? A. It was one of the clerks or judges that had the poll-book.

Q. What became of that poll-book in which you had the names of those who had
applied to vote and were refused ? A. We had no dinner that day and supper was
brought in and we were all eager to get something to eat. We were hungry and I
tried to get my book in my pocket. It was too large ; I couldn't get it there. I turned
around and layed it on the mantel -board and proceeded to help them set the table.
I suppose I was doing that about 5 or 10 minutes, and thought of my book and looked
around and it was gone.

Q. Have you ever seen that book since ? A. No, sir; I have not.

This day personally appeared P. L. Redwine, a witness for contestant, J. R. Chal-
mers, and who, after being duly sworn, testifies as follows (Rec., p. 955) :

Q. 1. What is your name? A. 1. P. L. Redwiue.

Q. 2. Your age ? A. 2. I am 54 years old.

Q. 3. Your occupation ? A. 3. I am a farmer.

Q. 4. How long have you been living in La Fayette County? A. 4. I have lived
here 54 years.

Q. 5. Were you one of the commissioners of election last fall, supervising the reg-
istration and poll-books ; and, as such, what were your duties ? A. 5. Yes, sir ; I was
guided by the statute, and had it by me all the while.

Q. 6. What were the condition of those books when you adjourned ? A. 6. So far
as I knew, correct.

Q. 7. What time did your board adjourn ? A. 7. I suppose a Saturday evening.

Q. 8. Have you examined those books since the election ; and, if so, what was the
condition of the books compared to the condition when you left them ? A. 8. They
were not the same.

Q. 9. In what respect were they not the same? A. 9. Thei-ewas names erased that
were not when I saw them last befoi-e the election.

Q. 10. You mean, in this answer, that the books were not in same condition as when
the board adjourned ? A. 1 0. / do.

Cross-examination :

Q. 1. You left Friday evening and did not return, but left the other two members
of the board still in session, did you not? A. 1. I did.

Q. 2. When was the last time before the election and the first time after the election
that you examined the books ? A. 2. About Wednesday evening previous to the elec-
tion we closed the inspection of the books. I think about Wednesday evening after
the election we began looking over the books again.

Q. 3. In the selection of officers of election, was not a list furnished you or your
board in handwriting of W. G. Beauland, giving the names of such Republican offi-
cers as were desired appointed at each box, and did your board not follow that list?
A. 3. It did verbatim.

Q. 4. You were not present when the board adjourned, were yon, but these appoint-
ments had all been made, had they not? A. 4. I was not present at the adjourn-
ment, but the appointments had all been made before I left.

Q. 5. Was there any complaint about these appointments or any of them? A. 5.
But one; Capt. G. F. Scott was complained of by both sides.

CHALMERS VS. MORGAN. 415

It will again be observed that this witness is speaking of the books
of all the precincts in the county (as a county).

It will also be observed that coutestee's counsel failed to attempt to
show that the erasing of names was confined to particular precincts.

These two witnesses (Alexander and Kedwine) being their trusted
political friends, and coutestee fails to introduce a single witness to dis-
prove the facts proven by these two Democratic election commissioners.

Thomas Strawn (white), a deposition on behalf of the contestant; being first duly
sworu, testifies as follows:

Direct examination by Mr. PIEKSON :

Q. You live in the Oxford precinct in La Fayette County, Miss., do you? A. Yes
sir.

Q. How long have you lived there? A. I have lived there about 20 years, sir.

Q. What position did you occupy at the North Oxford box at the last election in
La Fayette County ? A. I was supervisor.

Q. Did you examine the register-book there that day? A. Yes, sir.

Q. State the condition of that book \vith reference to the number of Republican
voters' names being scratched off. A. Well, there was about 200 of them, to my rec-
ollection.

Q. State how many attempted to vote there that day, as near as you can, who were
refused. A. Well, sir, I set down names till I got 190, I think it is, and then I went
home; the voting was near about over when I left; don't know how many after
that.

Q. What time did you quit ? A. It was between 4 and 5 o'clock.

Q. Did you know personally any considerable number of the men who attempted to
vote there that day ? A. Yes, sir ; I knew a great many of them.

Q. Did you know whether or not they were voters at that box, or had been voters
there ? A. Yes, sir ; had been voters there all the while.

Q. Upon what pretense were they refused a vote ? A. Because their names were
erased from the books, scratched out, sir; all that I learned. (Rec., p. 562.)

The conspiracy here is clearly established. One of the moving spirits
in it seems to have been the contestee himself, who the proof shows, said he
was in favor of cheating the negro out of his vote (Rec., p. 954). Another
was L. S. DiDard, who was election commissioner in 1882 and was con-
victed of violating the election law (see notice of contest, Rec., ),

and the third, W. V. Sullivan, member of Congressional committee for
that county. The principal method used was the erasure of names of
Republicans from the poll-books, the same plan adopted in contestee's
county in 1880, for which the commissioners of election were afterwards
indicted, tried, and convicted. (See digest election cases, 80-82, Bu-
chanan vs. Manning, p. 313).

The Republican majority in this county is at five boxes, Abbeville,
Alexander's store, College Hill, North and South Oxford. The vote at
these boxes in 1882 was, Chalmers 1,119 and Manning 606. They are
returned this time, Chalmers 272 and Morgan 911 (Rec., p. 742). The
record of Buchanan vs. Manning shows gross frauds at these same Re-
publican boxes. That frauds have been perpetrated in pursuance of a
conspiracy is evident, and the question is, what shall be done? r

The contestant asks that the returns from the county be thrown out,
and insists that each county should be treated as an entirety and not
each box. because under the Mississippi plan each county has a return-
ing-board with unlimited power as to erasing names from the poll- books,
the appointment of inspectors of elections, and the rejection of what
they regard as illegal ballots, and that their machinery can be so used
as to permit fair elections at Democratic boxes and open the door for
all manner of frauds at the Republican boxes. The contestee practi-
cally admits the frauds in this county, and in his brief (page 100) sug-
gests that if the rejected votes (422) and the vote at College Hill be

416 CHALMERS VS. MORGAN.

counted for contestant, leaving him the oth^r boxes as returned, he will
still have a majority in this county.

Looking to what is called the unexamined boxes of this county, it
will be seen that they are returned for Morgan 800, Chalmers 268.
Looking- to page 145 of reply brief of contestant, the boxes outside of
Abbeville, College Hill, North and South Oxford, gave Manning 607,
Chalmers 483. It was impossible for contestant to take proof as to
these boxes, growing out of the fact that the only Eepublican lawyer
he could get here was afraid to take testimony there. (See Montgom-
ery, Rec., p. 593.)

Q. Did I, or not, apply to you to act as my attorney to take my testimony at Ox-
ford ? A. You did.

Q. Did you, or not, advise me subsequently whether you considered it prudent forme
to do so or not; if so, state what you said? A. I had conversations with you to that
effect, in which I stated, that considering the late hour at which I had received the
word and my previous engagements that I ought to attend to, I couldn't take the time
until March 2nd for that work, bat in addition to that, and especially inasmuch as there
was a very strong prejudice against me at Oxford politically on account of a Republican
speech made in Illinois last campaign, having caused me the loss of my situation anel my
entire year's work, that I didn't think it was prudent to unite two mightier elements
in the taking of your testimony.

Q. What two mightier elements do you refer to ? A. I refer to the prejudice which
already existed against myself and theprejudice against Gen. Chalmers and his contest.

Beanlaud says:

Qu. 8th. Did you hear, or see in the newspapers published in Oxford, any expres-
sions as to the safety of Gen. Chalmers or his friends if they came to Oxford to take
testimony? If so, state what you heard, and what you read.
(This question objected to because it calls for hearsay evidence.)
Ans. The Oxford Globe, a Democratic newspaper printed at Oxford, some time in
February said, in a short squib, that if Chalmers came here and did right he would
have no trouble, but if he acted as he did in De Soto County, that he had bettor pack
up his traps and get away, or words to this effect. (Rec., p. 1041.)

But while contestant took no proof as to other boxes, there is proof
made by W. H. Caruthers, witness for contestee, that 400 names were
erased from the poll-beoks at Taylor's. He undertakes to account for
this by saying the books had been purged for the railroad election by
the erasure of those who had died or moved away, but he says there
was complaint made that voters who came up to vote were rejected be-
cause their names were not on the books. But the Democratic commis-
sioners, who were reluctant witnesses for contestant, Alexander and
Eedwine, both say the poll-books had been changed after they went
from their hands. And the fact that voters came up to vote at Taylor's
shows they had neither died nor removed.

Further, a comparison of the returns from Alexander's store in 1882
and 1888 shows a strong presumption that Eepublican voters were
erased. In 1882 the vote stood Manning 99, Chalmers 124. (See Ee-
ply Brief, 145.) In 1888 the returns show Morgan 96, Chalmers 61.
(Eec., p. 742.) From this it will be seen that while Morgan got 3
votes less than Manning, Chalmers is cut off' 63 votes. With the proof
as to the conspiracy and the proof of wholesale erasures at every box
examined about, this is circumstantial evidence that the same thing
was done at Alexander's store and all over the county. Thus a state
of confusion is brought by the frauds committed, which makes it impossi-
ble to ascertain the true vote. Under these circumstances there is but
one course left to do justice, and that is to reject the returns from every
precinct in this county and count only the vote proved.

The methods in this county are well described by two witnesses on
cross-examination.

CHALMERS VS. MORGAN. 417

Beanland says (Rec., p. 596) :

Q. Please describe and detail the Miss. plan. A. Well, I suppose you have heard,
without me describing it. It is to carry it the way they want it. If they can't carry
it one way, they carry it another. Can't carry it by fair, carry it otherwise, or foul.
If you had been down there in that country and heard what we Republicans have
you could very easily understand the Miss. plan.

Q. Where did you receive that information about carrying the election anyway;
is that based upon your experience? A. Yes, sir, it is; I know whereof I speak.

I. W. Hines says (Rec., p. 627) :

Q. Can you name an instance where the gentlemen whose names you have given
and denominated bulldozers put their bulldozing into operation at the election ?
A. Yes ; of course, we can all know ; in that country, sir, at that particular box, at
the time Tilden and Arthur election, they fired pistols inside of the house, struck one
of the judges on the feet and the nigger ran out; the window lights were broken
out, and after they got the ballot fixed up to suit them they sent for the nigger to
come in ; he was somewhere down the railroad.

ABBEVILLE PRECINCT.

Rec., p. 555 : Witness Word, examined book for the precinct Satur-
day before election down to letter K for erasure of names ; after the
election witness examined same book to letter K, and 23 names had
been erased since his examination before election.

Rec., p. 624 (Hines) : Polling place fired into during counting of vote
and inspectors refused to continue counting at that place, but finished
the count at another house ; only 216 votes polled, but 247 counted ; 40
voters denied the right to vote, name being erased or not on poll-book,
many of whom were known to him as Republican voters and as having
registered only a few days before.

Witness shows that election has been broken up by bulldozers at this
box in former years.

Returns: Morgan, 131; Chalmers, 116. The proof shows 31 fraudu-
lent votes in excess of voters found in the box, and 43 votes illegally
rejected. At this box Manning received but 92 votes, and if the 31
illegal votes be taken from the count for Morgan, it leaves him 8 more
votes than Manning had. At this box Chalmers had 199 against
Manning, and if the 43 illegally rejected votes be added to his, he still
has 40 less than he bad against Manning. The returns can not be
relied on, and taking the proof, the box should be counted, Morgan 100
and Chalmers 150.

Record, page 565 : Avent, College Hill precinct, appointed Republi-
can inspector, but was not permitted to serve by Democratic inspectors;
says over 200 Republican tickets issued and voted there (returns show
Chalmers 26 votes). Witness (Avent) remained all day taking voters
to polls; deputy sheriff says 20 or 30 whites (only) voted.

Cross-examination: Says a great many more Republicans voted,
"besides those he walked up to the polls with;" shows he walked up to
polls with about 75 Republicans; first election witness ever attended.

As to this box Beauland testifies as follows :

I heard W. W. M'Maan, one of the judges at College Hill, say they went there to
beat anybody the damn niggers would vote for, and they did it. Had the votes been
1,500 it would have made no difference.

Q. When you say it proved true that the niggers come up dead, what do you mean
by that ? A. I mean by that that they were not allowed to vote.

Q. Why ? A. Their names were scratched off the poll-books.

Q. How were they marked "dead" on the poll-books? A. That was my informa-
tion ; I didn't see the books. (Rec., p. 595.)

Word says:

Q. Did you have any conversation with these judges of election through the county
of La Fayette as to the way they proposed to carry things, and did carry them at the

H. Mis. 137 27

418 CHALMERS VS. MORGAN.

last election? A. Yes, sir; yes, sir; it was since the election; I were in the back
room of Brenner & Wallace's store at Oxford, and we were discussing this erasure,
and Mr. McMahon, who was an inspector of the election at College Hill, walked in ;
I appealed to him, and asked him if he thought it was right. He said that he thought
any thing was right. He says, "My God, any thing is right to keep ahead of the
negro." " Well," I said, " there was no negro wanted in this canvass." " That don't
make a damn bit of difference; the negroes voted for Chalmers, and, by God, if wo
can't stuff 'um out, wee'l shoot 'urn out; we don't give a damn how we get 'uni out,
but we are going to control ; um." That is his words as near exactly as I can get it \
that was the meaning of them. (Rec., p. 556.)

Mr. McMabon, the Democratic inspector, admits that one Avent was
appointed, as shown t>y his list, but rejects this Avent on a frivolous
excuse. He denies the statement of Beauland, but did not deny the
statement of Word.

W. W. McMahou, a witness for contestee, next duly sworn, on oath says :

Q. Were you a judge of election in Nov., '88, at College Hill precinct, La Fayette
County, Mississippi ? If so, how was the election conducted, and what was the re-
sult ? A. I was. It was an orderly, fair, and impartial election in every respect, and
resulted in a Democratic majority of about !<J80.

Q. Did you at any time, in the presence of W. G. Beauland, state in regard to the
approaching election, 1888, Nov., that yon thought that any person who the niggers
voted for should be beaten, and that you and other Democrats at College Hill were
going to beat them, no matter if they had 1,500 majority, or any thing of that kind ?
Aus. 1 had no such conversation with him or in his presence, at or before the election.
I s'd after the election, publicly, that I did not think the negro ought to be allowed
to vote. A discussion was up in a crowd as to whether, as a general proposition, the
negro should be allowed to vote, whether the suffrage should not be taken from him,
and I expressed the view that it was a mistake that he should be clothed with the
elective franchise. This in no way influenced my action in that election. I did not
aid, assist, or connive at any attempt, if any was made, to keep any one from voting
and his vote being counted as he wished.

Ques. Did any one prevent any Republican judge or inspector or supervisor from
ac< ing at the College Hill precinct ? Ans. One Avant presented himself claiming to
have been appointed Rep. supervisor, and when asked his name it proved not to be
the one who was appointed. And he was then asked what name he proposed to vote
under, and he said his real name, and his name was not the name of the persou who
was appointed, and he then decided to vote on his name and not serve under another
nam^ as supervisor of election, and another negro was then selected as such super-
visor, who was a Republican.

Q. In whose possession was the ballot-box left from the time of the closing of the
polls until the voting began ? And when the counting began was it continuous until
it was completed, and what chance was there given for false counting ? A. It was in
the joint possession of the Republican and Democratic officers, and Jim , one of

the Republican judges, kept the key to the box. They all eat at the same place and
went and came together. And after supper and counting them commenced it was
continuous, open, public, and no chance for false counting ; Republicans as well as
Democrats were present and witness the counting of the votes. (Rec., p. 962.)

OXFORD PRECINCT (NORTH BOX).

Returns (Rec., p. 742) show Chalmers 37 votes.

Supervisor Strawn (Rec., p. 562) and Beauland (p. 595.) : Kept list.
Two hundred Republican names erased, all former voters at that boxj
only about one in twenty-five colored men got to vote.

OXFORD (SOUTH BOX).

Returns (Rec., p. 742) show Chalmers 32 votes.

Supervisor Word (Rec., p. 554) and Beauland (p. 595) : Only eight
colored men allowed to vote. One hundred and seventy-nine Repub-
licans did not vote, names erased, and also those whose names could
not be found. Witness was marked dead and did not vote.

CHALMERS VS. MORGAN.
The vote of La Fayetle County.

419

As returned.

Aa proved.

Chalmers.

Morgan.

Chalmers.

Morgan.

Abbeville

116
26
37
32

131
285
, 219
180

156

200
227
211

100

College Hill

North* Oxford

219
180

South Oxford

Total

211

815

794

490

The count then stands ;

Chalmers.

Morgan.

7 186

295

Abbeville :
Add ^. ..

Cottage Hill:
Add *

7,226
174

9,264

285

North Oxford :
A.dd

7,400
190

8,979

South Oxford:
Add

7,590
179

8,979

Deduct .............

Total

7,769

8 979

The unexamined boxes of this county should beyond question be re-
jected. If. as the proof indicates, the wholesale disfranchisement of the
voters of this was planned or consented to by the friends of contestee,
no court of equity or law in the world would allow them to take advan-
tage of this wrong, and every presumption would be given against
him. To talk about a presumption in favor of the unexamiiied boxes in
this county would be most manifest injustice.

TALLAHATCHIE COUNTY.

In this county an ignorant negro, who was a Democrat, was appointed
commissioner of election to represent the Republican party. T. W.
Turner says :

Q. Who was the representative of the Republican party on the board of commis
sioners ? A. Geo. Lee, colored man.

Q. Was he recognized by the Republicans or not ? A. He was not. To the con-
trary they were requested not to appoint him.

Q. Why ? A We didn't look upon him as a Republican, the man to represent our
party.

Q. Was he or not known as a Democrat? A. He was, among his own class of people.

Q. He was a colored man, was he ? A. Yes, sir.

Q. And known by the colored men to be a Democrat? A. Yes, sir. Recognized by
them to be a Democrat. I don't think he could read or write. Utterly uncapableof
adding up a column of figures. (Rec., p. 447.)

Mr. Polk, a Democrat and Circuit Clerk, says:

Cross-int. 2. State, if you know, who was the representative of the Republican
party on the board of commissioners, and whether or not he could read and write.

Ans. cross 2. George Lee was the representative of the Republican party on the
board of election commissioners : he can read a little, but can not write his name.
(Rec., p. 844.)

420

CHALMERS VS. MORGA&

Mr. Byrd, a Democrat and commissioner with him, says :

Cross-inter'y 4. State, if you know, whether or not George Lee was a colored mad,
and whether or not he can read and write. Ans. 4. George Lee is colored; don'tthink
he can read or write. (Rec., p. 845.)

The Republicans have for years been persistently refused any com-
missioner or inspector asked for by them. T. W. Turner says:

Q. Did you ask the county commissioners for a, representative of the Republican
party as inspector at each box? A. 1 don't remember whether I did or not officially j
my impression is thatl asked the county commissioners or one of the county commis-
sioners, the one I believe was divested of party prejudice, would be governed by his
oath of office, if he wouldn't see that we got one representative from tbe Republican
party that could read and write as inspector at each box; that was Sam May, one of the
county commissioners; he said he would do the best he could; they never reported to
me any names or asked me as chairman of the Republican executive committee; as
chairman of the Republican executive committee, they never asked me for a list of
inspectors to represent our party, and in past years had never given me any recognition
officially.

Q. Have or not in past years the commissioners been asked to give a fair representa-
tive to the opposition parity, and have they or not refused? A. They have been and
have persistently refused. (Rec., p. 447.)

This shows a conspiracy to defraud under tbe rule laid down in Me-
Duffie sv. Turpin.

But the most conclusive evidence of fraud is to be found in the returns
themselves.

CHARLESTON, MISSISSIPPI, , 1888.

To Hon. GEO. M. GOVAN,

Secretary of State, Jackson, Miss. :

The following are the returns of an election held in Tallahatchie County on the 6th
day of November, A. D. 1888:

Precincts.

Names of candidates.

Charleston.

Center Point.

Harrison.

Boothes.

Sherman Creek.

Dogwood Flat.

Loveretts.

New Hope.

Ross Mill.

o
p.

Graball.

Brooklyn.

Buford.

Hybernia.

|
H

Majority.

For elector g for President
and Vice-President of
the United States.

A. J. McLaurin

182
182
182
182
182
182
182
182
182

112
112
112
112
112
112
112
112
112

66
66
66
66
66
66
66
66
66

56
56
56
56
56
56
56
56
56

65
65
65
65
65
65
65
65

82
82
82
82
82
82
82
82
82

33
33
33
33
33
33
33
33
33

99
99
99
99
96
99
99
90
99

124
124
124
124
124
124
124
124
124
28

23
23
23
23
23
23
23
23
23

61
61
61
61
61
61
61
61

92
92
92
92
92
92
92
92
92

26
26
26
26
26
26
26
26
26

1
1

1,021
1,021
1,021
1,021
1,021
1,021
1, 021
1,021
1,021
28
28
28
28
28
28
28
28
28

1,021
2

993
993
993
993
993
993
993
993
993

991

L. M. Southworth.
E. S. Candler, jr

Wm. M. Strickland
D. A. Scott

O.F. Bledsoe

W. D. G-ibbs .

E. J. Bowers

C. E. Hooker, jr

H. F. Simrall

R. N. Tindall

W. H. Vassar

G. M. Buchanan

Henry Meyer

L. J. Scurlock

J. R. S. Pitts

O. L. Garrett

T. J. Jackson

For Representative in
the 51*< Congress, 2d
Congressional district.

J. B. Morgan

180
2

112

126

J. K. Chalmers

James Witherspoon

CHALMERS VS. MORGAN. 421

STATE OF MISSISSIPPI, Tallahatchie County :

We, the undersigned commissioners of election for Tallahatchie County, certify
that the foregoing tabular statement is a true and correct return of the whole number
of votes cast for the several offices named therein at the general election held in said
county on the 6th day of November, 1888.

A. L. BYRD,

S. D. MAY,

' GEORGE LEE,

Commissioners of Election.

(Rec., p. 745.)

There are two palpable frauds shown here one false return and
the other forgery.

Revised Code of Mississippi, sec. 140, p. 82, says:

The commissioners of election shall, within ten days after the election, transmit
to the Secretary of State, to be filed in his office, a statement of the whole number of
votes given in their county for each candidate voted for in such county for any office
at such election.

This law has been construed by the United States court in Mississippi,
and it was held that "A statement of the whole number of votes given"
meant a return of all the votes cast, whether counted or rejected, and
if rejected, a statement as to why they were rejected. A failure to do
this was held to be a crime, punishable in the United States court.
(See case of United States vs. M. B. Collins et al. in Buchanan vs. Man-
ning, Dig. El. cases, 1880-'82, p. 314.) They were indicted for making a
partial return and plead guilty. That these commissioners made a
false and criminal return to the Secretary of State is clearly proved by
the witnesses for contestee, who say about 600 votes for Chalmers were
thrown out because they had notched edges. The return is further
shown to be false by comparison with the precinct returns, which the
clerk certifies and also testifies is a true copy from the certified lists on
file in his office. The commissioners' return give Chalmers but 2 votes,
while the precinct returns give him 533. Again, the precinct returns
give Morgan but 162 at Charleston, while the commissioners give him
180. The commissioners returned 28 votes for Witherspoon for Con-
gress at Bosses' Mill, while the precinct returns from this box give 10
to Chalmers and none to Witherspoon. This false return is concluded
with forgery. The name of George Lee is signed in full to the returns,
when all the witnesses say he could not write his name. The witnesses
for contestee not only show that the returns of the commissioners were
false, but that the returns of the inspectors at Charleston, which gave
Chalmers but 2 votes, were equally false.

We have, then, in this county evidence of a conspiracy to defraud in
the appointment of the commissioner and inspectors of election. We
see that there were 21 more votes counted than voters at Graball. We
have evidence that tickets were changed at Sherman's Creek, that
tickets were snatched from the Eepublican distributer at Dogwood Flat,
and that violence was used toward negroes for political reasons before,
during, and after the election.

Contestee suggested that the ballots for contestant, which were
thrown out because ol the notched edges, might be counted.

But his witnesses differ as to how many were thus thrown out. Do-
gan says there were about 550 (Rec., p. 841) ; Polk says there were 618
(Rec., p. 843) ; Byrd says there were about 600 (Rec., p. 845).

This confusion and uncertainty as to the true vote having been pro-
duced by the fraudulent conduct of the officers of election, showing a
purpose to defraud contestant, the returns from this county should be
rejected. This would take 2 from Chalmers and 1,021 from Morgan,

422

CHALMERS VS. MORGAN.

But if the votes of this county can be counted from the returns of
the precinct officers, the result would be as follows :
As returned, Chalmers 2, Morgan 1,021.

CRAB ALL.

The history of this box shows it is notorious for fraud. No election
was held there in 1882, and the reason is given as follows: T. W.
Turner says:

Q. Were you or not U. S. supervisor in 1882, when I was a candidate against Man-
ning? A. I was.

Q. State whether any election was held at that box at that time, and if not, why
not? A. There was no election held in 1882 I believe that was the year from the
fact that I was resisted as U. S. marshal, and turned back by an armed body number-
ing, I think, about 18, with Winchester rifles. '

Q. Were yon on your way as U. S. supervisor to attempt to hold an election at that
box ? A. Yes, sir; on the public road.

Q. You state you were met by Id iren with Winchester rifles who forbade you goiug
to hold the election? A. Yes, sir. (Rec., p. 446.)

No election was held there in 1886 as will be seen from the returns.
(Rec., p. 737.)

Returns of election held in Tallahatchie County, Miss., on November 2d, 1886, to elect Con-
gressman for the 3rd [should be 2nd] Congressional district.

Candidate for Con-
gressman.

J. B.

Morgan.

Jas.R.
Chalmers.

23
30
10

37
75
25
56
41
7

13
3
2
9
49

Boss" MHl -

3
29
23

Tippo

Graball .

Total -

315

184

131

At this election the officers appointed by the Democrats refused to
hold any election there until they saw the citizens were about to hold
an election themselves. Then some of those appointed agreed to .act,
and the election was held. (See Rec., p. 446.)

This election, as returned by the precinct officers, shows 21 more votes
returned than there were voters. There were 211 colored voters there,
and Chalmers is returned 211 votes. There were only 40 white voters
who voted, and Morgan is returned 61. (See Rec., p. 451.) From this
it is evident that 21 votes should be taken for Morgan here. The count
then stands :

Chalmers.

Morgan.

7,769

8,979

GrabaU:

211

7,980

8,958

CHALMEKS VS. MORGAN. 423

SHERMAN'S CREEK.

At this box the inspectors were all Democrats. One inspector was
seen changing tickets, and the voters were fired into while the election
was going on.

Deposition of J. E. DRAKE (col. ), a witness on behalf of the contestant, being first
duly bworu, deposed as follows :

Examination by General CHALMERS:

Q. What box do you vote at ? A. The Sherman box, in Tallahatchie County.

Q. Is the majority of voters at that box colored or white ? A. The majority is
white, I think, but we have very near as many colored as white.

Q. Was Jhere any shooting into the voters at that box on the last election? A.
Yes, sir.

Q. What position did you occupy there that day ? A. U. S. supervisor.

Q. Please explain the shooting you speak of. A. Well, there was about 20 or 30
shots. The men were on a bluff a little above the house, and the voters were about
30 or 40 feet from the house, and the shooting was done in the direction of the men,
and one of the balls fell right in front of one of the voters.

Q. Were they white or colored men who did the shooting ? A. They were white
men ; hid back on the bluff.

Q. How many times did they shoot different times ? A. Twenty or 30 different
times they sbot.

Q. Who was the Republican inspector of election there that day, or claimed to
be ? A. Alfred Buckley.

Q. Could he read or write ? A. No, sir.

Q. Do yon know whether he was in fact a Republican or not? A. He was a Dem-
ocrat, and always had been a Democrat, and voted Democratic that day.

Q. Did you see him vote that day ? A. Yes, sir ; I seed him vote. I gave him a
Republican ticket and he put it in his pocket, and when he went to vote pickel up
a Democratic ticket and voted it.

Q. Did you see anything that indicated fraud going on in the reception of the vote ;
if so, state what it was? A. Now, what I seed, what I would call fraud, he would
bring his hands together whenever a Republican voted and handed him a ticket. He
would bring his right hand up to his left hand aud then put a ticket into the box
with his right hand.

Q. As if he was changing it? A. Yes, sir. It looked that way to me. It was go-
ing on while I was noticing it all the while, and after a while I called Buckley's at-
tention to it. (Rec., p. 445.)

Sam Edsington, being duly sworn, testifies as follows :

Int. 1. What is your name, color, and politics ? Ans. 1. Sam Edington ; black. I
have very little to do with politics, but was always Republican.

Int. '2. In what voting precinct did you live at the last election ? Ans. 2. Sherman
Creek.

Int. 3. Did you vote at the last election ? If so, state at what place. Ans. 3d. I
voted at Sherman Creek.

Int. 4. How long did you remain at the voting place ? And state whether or not the
election was peaceable and quiet. - Ans. 4. I stayed there about three-quarters of an
hour. No, sir.

Int. 5. You say iu answer to 4th interrogatory that the election was not peaceab.e.
State in full how it was interfered with ; tell all about it in your owu language.
Ans. 5. When I got there I was making out some tickets for the boys; and they were
shooting just above my head west of the voting precinct. I told the boys to sit still,
I reckoned it was somebody drunk ; and in about five minutes afterwards they com-
menced shooting again, and they drew lower down uearer the last time than they did
the 1st time. I said, "Boys, this is getting mighty hot, let us get away from here."
Some of us went towards the polls, the others went home. That is all I know
about it.

Int. 6. How many were engaged in the shooting, and were they shooting at any
one to prevent them from voting? Ans. 6. I don't know how many ; I couldn't tell.

Int. 7. What made yon think it was getting too hot for you, and made you advise
the boys to get away? Ans. 7. The balls were coming right toward us, and some of
them struck the ground in three feet of us.

Int. 8. How many, if any, failed to vote who went to the polls, on account of the
disturbance ? State as near as you can from information and belief. Ans. From
seven to eight, I think, left without voting. (Rec., p. 1053.)

This box was returned Chalmers 14, Morgan 64.

424

CHALMERS VS. MORGAN.

The supervisor's return of 1882 shows that Chalmers beat Manning
2 to 1 at this box. The commissioners of election gave Chalmers none
here. The returns being set aside, 2 votes proved for Chalmers and
none for Morgan, we should add 2 to Chalmers and take 64 from Mor-
gan, and the account would then stand :

Chalmers.

Morgan.

Forward ....

7 980

g 953

Sherman's Creek :
Add

Deduct

7,982

8,893

New Hope : The commissioners give Chalmers nothing, but the pre-
cinct officers return for him 37 5 add this to him and the count will then
stand :

Forward

7 982

8 893

New Hope, add to Chalmers

8,019

8,893

Leverett's : At this box there was a row gotten up to intimidate the
voters at the polls, and violence inflicted on the negroes for political
reasons afterwards.

Gary Bynum, being sworn, testifies as follows :

Int. 1. In what precinct did you live at the election of 1888 ? Ans. 1. Leverett's.

Int. 2. Did yon vote at the last election ; if so, where did you vote ? Ans. 2. Yes ;
voted at Leverett's.

Int. 3. State whether or not the election was peaceable and quiet, and whether or
not all were permitted to vote as they wished, without molestation? Ans. 3. It
wasn't ; they started cussing and fussing, and I went away.

Int. 4. Who were they who got up the trouble; were they Republicans or Demo-
crats, and what was the trouble about, a private matter or politics ? Ans. Turner
and Pute; they were Democrats; about the box and election.

Int. 5. Did or not the officers of the election interfere to prevent the disturbance t
Ans. No, sir; Mr. Pute was the officer himself. (Rec., p. 1047.)

Louis Turner, being duly sworn, testifies as follows :

Int. 1. State your name, age, and place of residence. Ans. 1. Louis R. Turner;
thirty-six ; Tallahatchee County.

Int. 2. State whether or not you was living in this county at the last election ; if
so, in what precinct did you live and if you voted state where you voted. Ans. 2.
Yes; Leveret t precinct; did not vote.

Int. 3. State, if you know, whether or not there was any excitement about the elec-
tion; if so, state as far as you know, what was done calculated to intimidate the
voters; state in full your knowledge on this subject. Ans. 3. There was a Demo-
cratic torchlight procession, I think the night before the election, around and about
LeTerett precinct, and there was frequent tiring of pistols by those who participated
in the procession.

Int. 4. State, if you know, whether or not there was any outrages or lawlessness on
the part of any Democratic club, or any member of the clubs, immediately before or
after the election ; state in particular all you know on the subject. Ans. 4. Satur-
day after the election B. F. Pute and B. M. Turner met a negro by the name of Dick"
Grantham in the public road n-ar my horse-lot; they stopped Grantham and said to
him, "You damned son of a bitch, hollow hurrah for Cleveland," which ho did. They
then told him to ''sing it out louder;" he did so, and they rode on. On the same date,
at night, I heard several shots fired, I thought in the direction of some negro cabins

CHALMEKS VS. MORGAN.

425

on my place. I walked out in my yard, and iii a few minutes two or three persons
passed my house. I recognized B. F. Pute and B, M. Turner, In a few minutes
afterwards Ely Taylor and his wife, who live on my place, came to my house and said
Mr. Pute and Mr. Turner had fired into their house, and said one shot struck Martha
Taylor (Ely's wife). (Rec., pp. 1048-1049.)

At this box the commissioners gave Chalmers nothing, but the pre-
cinct officers returned for him 81 j add this and the count will then stand :

Chalmers.

Morgan.

8,019

8,893

8,100

8,893

CENTER POINT.

The commissioners here gave Chalmers nothing, precinct officers re-
turned for him 13; add this and the count will stand:

Chalmers.

Morgan.

8 100

8, 893

Center Point, add

8,113

8,893

DOGWOOD FLAT.

At this box, which is largely Republican, personal violence was
inflicted on negroes for political reasons before the election, and the
tickets were snatched from the hands of the Eepublican who was dis-
tributing them, and he was compelled to go to Charleston, a distance
of 7 miles, to get more Republican tickets, and during this time many
Republican voters went away.

Ben Jones says:

Int. 4. State whether or not you was solicited to join the Democratic club before
the election ? And, if so, state all that occurred at that time. Ans. 4. I was asked by
Mr. Borbee. He asked me down there, and I went to the door. He asked me in and
asked me if I wanted to join. I asked Mr. Fedric what was it. He says, " Ben, it
is a Democratic club ; do you want to join ? " I said no. Mr. Borbee said, " Well,
Ben, get out of the door." I went out, went over to the store, and sat down. Mr.
Turner (don't know his first name) was there. Me and him sot there and talked a
long time. He says, " Uncle Ben, I must go get me some water." He goes on to the
well and told Mr. J. Murphree. They called him in the house, and Henry Harris
came on to the store and sot down there with me. We sot and talks and runs on with
one another, and after while they commence speaking in the house, and Henry says,
" Hardside, let's go to the window." I say " Henry, won't they trouble us?" He
said no. We went as close to de window as about 13 feet. Me and Henry both war
standin' in about 13 feet of de window, in plain view, lookin'in. Mr. Clarkson come
to the window and told us to get away. We went right straight to our horses. By
de time I got on my horse dere was a man come out dedoor and said stop ; and I told
him I was goin' on home ; I didn't have no business there. We rid on den and got
about a hundred yds. from de house. We looked back behind and I said, " Henry,
good God, look at the white folks back behind." Henry just reched up and got his
hat and commenced fitein' his horse, and we put out. They runned us a half a mile,
and when dey first caught up with me they struck me four licks across de head ; and
I looked 'round at him and I said, " Boss, what do you mean ? We worn't mean in'
any harm." And he said, " Damn you, stop de horse." I told him I wouldn't do it.
After dat my horse fell down. They were in such full speed after Henry and runed
over m<% and I stepped over my horse's neck and over de fence into the field, and
squatted in de corner. While I was squatin' in de corner of de fence I held my hand
up and found blood runuin' into it from my head. (Rec., p. 1050.)

426

CHALMERS VS. MORGAN.

T. W. Turner says:

Q. If there is anything else that you know and haven't answered, please state it.
A. We would have had a much larger vote at Dogwood Flat but for a circumstance that
occurred about 12 o'clock, I think it was. The colored man who held the Republican
tickets and was distributing the same, and whose name was Virgil Gentry, had the
tickets forcibly jerked from his hands and pocket and destroyed by a white man and
Democrat, a member of the club, whose name was Turner, the given name I don't
remember. They were from the circumstance forced to come to Charleston, a distance
of 6 or 7 miles, to procure more tickets, and I think to the best of my memory I only had
50 tickets left to give them. I think it was only about 50 tickets. Many of our voters
leaving during the time, and some of them coming to Charleston, thinking they could
vote there. (Rec., p. 449.)

Virgil Gentry, being duly sworn, testified as follows :

Int. 1. What is your name, color, and politics? Ans. 1. Virgil Gentry; black; Re-
publican.

Int. 2. In what precinct did you live at the election of 1888? Ans. 2. Dogwood
Flat.

Int. 8. Did any one interfere with you or anyone else in the distribution of Repub-
lican tickets ? Ans. 8. Didn't any further than snatching the tickets out of my
pocket, and I learned afterward that his name was Mr. Turner. (Rec. p. 1054.)

The commissioners here gave Chalmers nothing. The precinct offi-
cers returned for him 93 ; add this and the count will stand

Chalmers.

Morgan.

^Forward ............................................... ...... .........

8 113

8 893

Dogwood Flat.....................

8,206

8,893

BUPORD'S.

The commissioners here gave Chalmers nothing. The precinct offi-
cers returned for him 8; add this and the count will stand

Chalmers.

Morgan.

8 206

8 893

Buford's add . .. ..... .

8,214

8.893

TIPPO.

At this box the commissioners and the inspectors count 2ii votes for
Morgan and none for any one else. But the precinct returns show
that 28 votes were cast, so that 5 votes are here deliberately thrown
out without any cause being assigned, and counted for no one.

BROOKLYN.

At this box the commissioners returned none for Chalmers, but the
precinct officers returned for him 48. Adding this, the count will stand
thus:

Chalmers.

Morgan.

8,214

8,893

8,262

8,893

CHALMERS VS. MORGAN.

427

BOOTHES.

At this box the commissioners gave Chalmers nothing. The precinct
officers returned for him 4 j add this and the count will stand

Chalmers.

Morgan.

8 262

8 893

8,266

8,893

HARKISON.

At this box the commissioners gave Chalmers nothing ; the precinct
officers returned for him 12 ; add this and the count will stand thus:

Chalmers.

Morgan.

8,266

8,893

8,278

8,893

CHARLESTON.

At this box the witnesses for the contestee show that the same false
and criminal return was made b.v the inspectors at Charleston that was
made by the commissioners. They returned only 2 votes for Chalmers
at this box, as being the whole number cast for him. The witnesses for
contestee show that this was false, and that a number of votes were
thrown out here for him, but as to how many no witness undertakes to
say. For this fraud this box must be thrown out, ami as no vote was
proved for Morgan there should be taken 180 from him. It is proved
that 3 white men here voted for Chalmers, 2 Democrats on Democratic
tickets, the only votes counted, and Captain Turner, a white Republi-
can. It is further shown that 155 colored men voted at this box, and
the testimony of Turner, Pollard, and Buckley all show that the negroes
turned out better to vote and voted more enthusiastically for the Repub-
lican ticket on that day than they had done for years. They fix the
number of colored men who were Democrats at that box at 5, and
Pollard says he thinks 2 who had been voting the Democratic ticket
did not do so that day. Captain Turner distributed the Republican
tickets and testified as follows :

Q. State whether in your opinion there was ballot-box stuffing at Charleston box
or not, to the best of your knowledge and belief. A. To the best of my belief and
observation the tickets were exchanged from Republicans' hands before they got to
the box and Democratic tickets inserted. My reason for that belief is that I issued
between 1W) and 190. I dis'member the exact number, reserving the name of each
voter upon the stub of the ticket which I now have in my safe, and by referring to it
I can get the exact number of tickets, and I will file that stub with my deposition as
Exhibit B to my deposition. I never saw during my career as member of the Repub-
lican executive committee a more united and enthusiastic gathering than there was
on that day at Charleston, or a more fixed determination to vote every man his
ticket. My observation was, after the tickets were issued they remained together
and a large majority of them went from where they received their tickets and de-
posited them at the window under my observation. I was watching at the time. I
can't swear to any thing positive that I saw that was wrong. But judging from the"
number of colored* men that voted and the number of white men, observing closely
each, I don't believe there were 3 out of the entire colored vote that voted the Dem-
ocratic ticket.

428 CHALMERS VS. MORGAN.

Anthony Pollard, being duly sworu, testified as follows:

Int. 1. What is your name, color, and occupation? Ansr. 1. A. P. Pollard; farm-
ing and teaching.

Int. 2. In what precinct did yon live at the election of 1888? Ans. 2d. Charleston
beat.

Int. 3. What is your politics ? Aus. 3d. Republican.

Int. 4. State whether or not you took an active part in the election of 1888 ? Ans.
4th. I made no canvass, but gave out tickets and talked about election a great deal
on the day of the election.

Int. 5. State whether or not you know about the number of colored voters at this
precinct, and whether or not 'they generally voted, and about how many voted.
Ans. 5th. I think there's about two hundred and some odd. I think there was about
180 or 190 tickets issued on day of election at this place. I mean Republican tickets.

Int. 6. About how many colored men voted in this precinct ? Do you know whether
all to whom tickets were given voted? Ans. 6. I don't know whether all the tickets
given out were voted or not.

Int. 7. Were you at the polls during the day of election ; if so, state if you saw any
conduct of the officers of the election that indicated unfairness ? Ans. 7. Yes, I was
here at the election. Nothing that indicated unfairness.

Int. 8. Did you see any one exchange the tickets given in by the voters? Ans. 8. I
did not.

Int. 9. Do you know Gen. J. R. Chalmers ; if so, state whether or not he was gener-
ally popular with the colored people? Ans. 9. I know him when I see him. I think
he is generally popular with the white and colored people about Charleston.

Int. 10. State if you ever heard any objection urged by the colored people against
Gen. Chalmers on account of his war record? Ans. 10. Not in this last campaign.

Int. 12. State if you know which, Morgan or Chalmers, got the majority of the vote
cast at this box. Ans. 12. I don't think there was much difference, but the Republi-
cans generally carry this box by a small majority. I think Chalmers carried this box
by a small majority.

Cross-examination :

Interrog. 1. Are you well acquainted with the voters of this county, both white
and black, and have you been a candidate several times in this county ? Ans. 1st.
Pretty generally with them. Once a candidate for supervisor.

Interrog. 2. Have you for several years past very well understood the political
workings of this county? Ans. 2d. I have been, but not lately.

Interrog. 3. Was the Republican party in this county well organized, or not, in
the year 1888, and if so, state the nature and extent of such organization ? ADS. :?.
The Republicans in this county were not so well organized, but talked about politi-
cal matter generally.

Interrog. 4. What portion of the colored people who voted at this place voted the
Democratic ticket for J. B. Morgan ? Give your best judgment. Ans. 4. I think
those who have been in the habit of voting Democratic ticket heretofore voted that
way in last election, except one or two.

Interrog. 5. What portion of the colored voters in this precinct and in this county
failed to go to the polls and vote in Congressional election here in 1888? Ans. 5.
Abont one-fourth failed to turn out in county, but at this box there was a larger
turn-out than usual in last campaign.

Robert B. Buckley, being duly sworn, testified as follows :

Int. 1. State your name, age, color, and politics. Ans. 1. RobertB. Buckley ; about
34 years; colored man ; Republican.

Int. 2. In what voting precinct did you vote at the election of 1888 f Ana. 2.
Charleston precinct.

Int. 3. Did yon vote at the last election ; if so, state at what place T Ans. 3. Yes,
sir ; I voted at Charleston precinct.

Int. 4. Do you know Gen. J. R. Chalmers ; if so, state whether or not he was pop-
ular with the colored voters? Ans. 4. Yes, sir; yes, sir.

Int. 5. Was the Republican party organized during the canvass and election; if so,
state how it was organized, and whether or not there was any concert of action and
agreement among them T Ans. 5. They were not organized in clubs, but had a gen-
eral understanding who they would vote for.

Int. 6. Was there a geueral turn-out of the Republican voters at your box ; if so,
was it in pursuance to the agreement among them ? Ans. 6. Yes, there was a gen-
,eral turn-out ; yes, sir.

Int. 7. Were you one of the officers of the election ? If so, state what was your
duty. Ans. 7. I was an inspector of the election.

Int. 8. How many Republicans were officers at your box ? Ans. 8. One.

Int. 9. State what was assigned you to do while the voting was going on. Ans. 9.

CHALMERS VS. MORGAN. 429

Part of the time in the morning I was to hunt names on the poll-books ; balance of
the time was sitting there looking on.

Int. 10. State whether or not you was in the position to detect any fraud, if there
was any, and if you detected any fraud ; if so, what was it ; state in full. Ans. 10.
No, sir ; I was not, I was looking over the book. No fraud was perpetrated, so far
as I know.

Int. 11. Do you know how many Republican votes were polled at your box ? If so,
state how many, as far as you know. Ans. 11. No, sir; don't know how many there
were.

Cross-examination :

Interrog. 1. Was the election for Congressman held here in 1888 peaceable, quiet,
and fair over the county generally, so far as you know ? Answer 1. So far as I know,
it was.

Interrog. 2. Do you know Judge J. B. Morgan, and is he popular or unpopular
with the colored voters of this county and this precinct? Answers. Yes, I know
him ; if he is popular I don't know it.

Interrog. 3. Do you know that he is unpopular with the colored voters? Ans. 3.
Personally I don't think him unpopular; politically I never heard any one decide to
vote for him.

Interrog. 4. Do you not know that some colored people voted for J. B. Morgan
at this place ? Answer 4. No, sir ; I do not know it. No one told me that they voted
for him.

Jnterrog. 5. Have you ever heard that some colored people voted for J. B. Mor-
gan at this voting place at the said election? Ans. 5. Yes, sir; I heard the boys
say one voted for him, but he denied it.

Interrog. 6. Have you not heard, and is it not your understanding and informa-
tion, that there are many colored people who generally vote the Democratic ticket at
this place ? Anr. 6. I have heard of four or five.

Interrog. 7. What is your opinion as to the number of Democratic tickets for
J. B. Morgan cast at said election at this voting place by the colored voters?

My opinion is about 4, 5, or 6 somewhere about there.

Interrog. 8. How many inspectors of election were acting as such at this place
with you? Ans. 8. Three of us; two others.

Interrog. 9. When you were looking over the poll-book at said election, was not
that necessary to be done by one of the inspectors to carry on the election according
to law of this State, and' were not the other officers at said election then busy in their
official duty as to the election? Ans. 9. Yes, sir; yes, sir.

Interrog. 10. When you were not looking over the poll-books were you not in po-
sition and have good opportunity to detect any fraudulent conduct on the part of the
other officials of said election? Ans. 10. Yes, sir.

In opposition to this the witnesses for contestee undertake to show
that more negroes than are stated by the Republican witnesses voted
the Democratic ticket. Dogan says : " I do not know how many col-
ored voters voted the Democratic ticket in this county in 1888, but do
know that some of the best colored men in the county are Democrats
and belong to Democratic clubs " (Rec., p. 842). Xeely says:

Aus. 32. I don't know exactly number of col. voters who voted the Democratic
'ticket in the county, but can safely testify that at least 150 or 175 voted that ticket
in the county, and at least 35 or 40 at this box: I know this from personal observation
and my acquaintance with the col. voters and by giving out Democratic tickets to
them, and many of them voted the Democratic ticket openly and above board. (Rec.,
p. 840.)

Polk says:

Answer to question 32. I think at least forty colored votes was polled for Judge J.
\. Morgan at Charleston precinct. As to the other precincts I am notable to say. I
know it from personal observation and their statements to me as to how they would
vote; a good many voted open tickets for Judge Morgan. (Rec., p. 844.)

But not a single negro was called in this county to prove that he voted
the Democratic ticket, and the color of the voters, as shown in the proof
of those who voted, there were 832 colored and 783 white.

Again, at Charleston the proof shows 109 whites and 155 colored
voted. Three of the whites voted for Chalmers, and if we add to the
100 white men 40 colored, which is the most extravagant guess made
by any Democratic witness as to the colored Democratic vote at this

430

CHALMERS VS. MORGAN.

box, it would make but 143 where the commissioners returned 180 for
Morgan. A further gross fraud is shown at this box, in this : The pre-
cinct officers returned but 162 for Morgan, while the commissioners re-
turned 180 (see llec. pp. 462 and 745).

Couutirg the vote for Chalmers here as proven by the Republican
witnesses and the count will then stand :

Chalmers.

Morgan.

Forward 8,278 8,587

Charleston:

Add 156

Deduct 180

8, 433 8, 407
Deduct unexamined boxes :

Benton County 232 605

8, 201 7, 80;J

DeSoto County 312 540

7, 889 7, 22

La Fayette County 268 860

7,621
Marshall County 400

7, 221 5, 780

Panola County 313 540

6, 908 5, 240

Tate 348 944

6,560 4.296

Add rejected votes in Benton, Marshall, De Soto, Panola and Tate 380

6,940
Showing plurality for contestant 2,044

Or if Tallahatchie County be rejected the count will then stand re-
turning to the last count in La Fayette :

Chalmers. Morgan

Forward . 7,769 8,979

Tallahatchie out, deduct 1,021

7, 767 7, 958
Deduct nnexamined boxes:

Benton County 232

7,535 7, H53

DeSoto County 312 540

7,223 6,813

La Fayette County* 268 860

6, 955 5, 953

Marshall County 400 022

6, 555 5, 331

Panola County 313 540

6, 242 4, 791

Tate County... 348 944

5, 894 3, 847

Add rejected votes in Benton, DeSoto, Marshall, Panola, and Tate 380

6,274
Plurality for contestant 2,427

CHALMERS VS. MORGAN.
RECAPITUL ATIO N.

431

Chalmers.

Morgan.

As returned

5 817

13 978

Benton County:
Lamar

Deduct 77

Deduct 101

As counted

5.740
Add 48

13,877

D'' Soto County:
Horn Lake

5,788
Add 142

13,877
Deduct 256

Uesbitts

5,930
Deduct 105

13, 621
Deduct 130

Aa proved

5,825
Add 1F2

13,491
Add 47

Hernando Depot

6,007
Deduct 32

13,538
Deduct 134

AB proved

5,975
Add 97

13,404
Add 69

Hernando Court-House .............................................

6,072
Add 49

13,473
Deduct 49

6,121
Add 52

13, 424
.Deduct 162

Oak Grove

6,173
Add 148

13,262
Deduct 154

6, 321
Deduct 136

13, 108
Deduct 200

Lauderdale ,

6,185
Add 33

12,908
Deduct 111

Stewarts

6,218
Add 73

12, 797

Ingrains

6,291
Add 118

12, 797

Olive Branch

6,409
Add 100

12, 797
Deduct 185

Marshall County :
East Holly Springs

6,509
Add 128

12, 612
Deduct 350

West Holly Springs

6,637
Add 30

12, 202
Deduct 30

Red Bank

6,667
Add 41

12, 232
Deduct 115

Byhalia

6,708

12, 117
Deduct 302

Wall Hill

6,743
Add 27

11,816
Deduct 119

Chulahoma

6,770

11,696
Deduct 121

Law's Hill

6,818

11, 575

Waterford

6,842

11, 481
Deduct 162

Hudsonvillo .

6,882

11, 319
Deduct 142

Panola County :

6,896

11,177
Deduct 306

6,956

10,872

432

CHALMERS VS. MORGAN.
RECAPITULATION Continued.

Chalmers.

Morgan.

Panola County continued :
Spring Port

Add 5

Deduct 79

IJongtown. ..................................... .. .. ...

6,961
Add 40

10, 777
Deduct 155

Batesville

7,001
Add 6H

10,618
Deduct 245

7,069
Deduct 97

10,373
Deduct 126

Ta^e County:

6,972
Add 145

10, 247
Add 30

7,117
Add . 149

10, 277
Deduct 275

Senatobia. ................................... ... . . .

7,266
Deduct 44

10, 002
Deduct 318

Shirods

7,222
Deduct 20

9,684
Deduct 166

7,202
Deduct 16

9,518
Deduct 223

La Fayette County :
Abbeville......

7,186
Add 40

9, 295
Deduct 31

College Hill

7,226
Add... 174

9,264
Deduct 285

North Oxford ......

7,400
Add 190

8,979

South. Oxford

7,590
Add .. 179

8,979

Tallahachio County, throw out the county..

7,769
Deduct 2

8,979
Deduct 1,021

Benton County, unexamined boxes ............. ...... . ...

7,767
Deduct 232

7,908
Deduct 605

De Soto County, unexamined boxes

7.535
Deduct 312

7, 353
Deduct 540

LaT'ayette County, unexamined boxes -.

7,223
Deduct 268

6,813
Deduct 860

Marshall County, unexamined boxes

6,955
Deduct 400

5,953
Deduct 622

Panola County, unexamined boxes ..

6,555
Deduct 313

5,331
Deduct 540

Tate County, unexamined boxes

6,242
Deduct 348

4,791
Deduct 944

Benton County . . 1
DC Soto County..
Marshall County. > Add rejected Tote .- ..

5,894
380

3,847

Panola County. . . 1
Tate County J

6,274

3,847

2,427

CHALMEES VS. MORGAN. 433

From this it will be seen that if the unexamined boxes be rejected
and the rejected voters outside of La Fayette County be counted for
contestant, it will give him 606 plurality upon the count as admitted to
be made by the majority report. If they be added to the count, as
made by this report, it gives to the contestant 2,427 plurality by the
co nut leaving out Tallahatchie County, and 2,644 if Charleston box, in
Tallnhatchie County, be counted according to the rule, so frequently
held by this committee, of rejecting the vote when fraud is proved, and
counting only the vote as proved by the ticket distributers to have
been issued and voted. We have given our count in detail, and we
append a tabulated recapitulation for easy reference, and we challenge
any one to show that in making it we have departed at any box from
the rules laid down in Featherstone v. Gate, Threet v. Clarke, or McDuffy
i'. Turpin. The committee acted on these rules in all these cases, and
we see no reason why we should depart from them in this case.

When the majority of the committee found fraud enough at 23 boxes
to reduce the returned plurality 6,122 votes, can it be possibble that a
further examination would not have shown further fraud at the unex-
amined boxes sufficient to give contestant even a greater majority than
is here counted for him.

For this House to declare the contestee legally elected, after all the
fraud shown in this report and the first sixteen pages of the majority
report, with which we agree, will be to uphold and maintain a state of
things disgraceful to our civilization and to encourage its continuance
and repetition so that it will grow with their growth and strengthen
with their strength until it becomes imbedded in the politics of that
section, never to be eradicated except by revolution.

Therefore, in consideration of the premises, the minority recommend
the following resolutions:

Resolved, That James B. Morgan was not elected a Eepresentative in
the Fifty first Congress from the second Congressional district of Mis-
sissippi, and is not entitled to a seat therein.

Resolved, That James B. Chalmers was elected a Representative in
the Fifty -first Congress from the second Congressional district of Mis-
sissippi, and is entitled to a seat therein.

H. Mis. 137^ 28

JOHN M. LANGSTON vs. E. 0. VENABLE.

FOURTH VIRGINIA.

Contestant charged that by the false and fraudulent returns of the
election officers in certain precincts he had been deprived of the benefit
of a large number of votes legally cast for him. This charge the com-
mittee find sustained by the evidence as to a sufficient number of pre-
cincts to overcome the plurality returned for contestee, and show a
plurality for contestant. The minority find the evidence insufficient to
sustain the charges. (See minority report, page 469.) The resolutions
presented by the committee were adopted September 23, 1890, the first
by a vote of 151 to 1 (the Speaker "counting a quorum") and the sec-
ond without division, and Mr. Langston was sworn in. The debate will
be found on pages 9822 to 10339 of the Record. (The case was under
consideration most of the time from September 6 to September 23.)

(1) Irregularities. Their effect on the prima facie of the returns.

Mere irregularities in the conduct of the election, where it does not
appear that the legally expressed will of the voter has been suppressed
or changed are insufficient to impeach officially declared votes. But a
succession of unexplained irregularities and disregard of law on the
part of intelligent officials removes from the ballot-box and the official
returns that sacred character with which the law clothes them, and
makes less conclusive evidence sufficient to change the burden upon the
party who maintains the legality of the official count.

(2) Change of judges of election.

Unwarranted changes in judges of election, made without reason or
excuse, only a few days before the election, are suspicious circum-
stances, but standing alone, and not supported by evidence of fraud at
the polls, aifecting the result of the election, are disregarded, and the
certified returns permitted to stand as made.

(3) Irregularity. In one portion of a return does not affect the rest.
Where a precinct return was irregular as to votes cast for Presiden-
tial electors, and had been rejected entire by the county commissioners,
the committee counted the vote for Eepresentative in Congress, which
was regularly returned.

(4) Excessive ballots.

Where there was an excess of 26 ballots in a vote of about 200, and
the count was conducted without witnesses, and under suspicious cir-

435

436 LANGSTON VS. VENABLE.

ctimstances, the committee held that this was sufficient to reject the
return.

(5) Unsigned return.

4-n unsigned statement counted as a return by the county commis-
sioners was rejected by the committee.

(6) Suppression of testimony. By dilatory cross-examination.

Where in one precinct contestant began taking testimony twenty-
three days before the expiration of his time, in pursuance to a notice
containing the names of 292 persons, who, it is claimed, would have
testified that they voted for him in said precinct, and the first two wit-
nesses, the ticket distributers, were cross-examined by the coutestee
throughout the entire twenty-three days, held, that the contestee is
estopped from claiming that the evidence of these ticket distributers is
insufficient unless corroborated by that of the voters themselves, he
having by his own act prevented the latter testimony from being taken.

(7) Return overthrown by testimony of voters.

Where contestant was returned as having received 139 votes in a
precinct, and 283 voters testified to having voted for him, and the tes-
timony of the ticket distributers indicated a still larger number, held,
that this is sufficient to reject the return, and count only such votes as
are proved outside the return.

(8) Votes. Not cast.

Where there were two lines of voters, one white and one colored, and
the judges required them to vote alternately, and the colored line
being much the longer, there was still a large number of voters in it
who had not voted at the close of the polls, and the testimony showed
that most of them were intending to vote for contestant, but they them-
selves were not called as witnesses, held, that their votes could not be
counted for contestant, but that if their number had equaled or ex-
ceeded the plurality returned for the contestee so that the legality of the
election depended upon them, it would invalidate his election with no
further proof and make a new election necessary.

(For ruling under a different state of facts, see Waddill vs. Wise,
gupra.)

(9) Return. When rejected only votes proved counted.

Where the returns were rejected for fraud, and the only votes proved
aside from the returns were for contestant, held, that no others could
be counted, for "it is evident that giving to contestee the vote not ac-
counted for would be a direct encouragement to election frauds, as it
would give him the benefit of every fraudulent vote which his friends
had made it impossible for the opposition to expose, even after the
proof clearly established fraud to such an extent as to destroy abso-
lutely the integrity of the official returns. In no case has such a rule
been adopted."

REPORT.

JUNE 16, 1890. Mr. HAUGEN, from the Committee on Elections, sub-
mitted the following report:

The official returns from the Fourth Congressional district of Virginia
of the election of Representative in Congress, on the 6th of November,
1888, give jS. C. Venable 13,298, John M. Langston 12,657, and K. W.
Arnold 3,207 votes, a plurality of 641 votes of Venable over Laugston.

The contestant, Mr. Langston, claims that this is not the true vote
of the district, but is the result of fraud and corruption on the part of
the election officers in certain counties and at certain precincts specified
in his notice of contest, and that had the vote been honestly received
and honestly returned in accordance with the laws of Virginia, a clear
plurality over Mr. Venable would have appeared for him Langstou.

The committee has selected from the voluminous record (which con-
tains some 1,200 pages of closely printed matter, much of it irrelevant
and tedious cross-examination) a few precincts which appear to the
committee to sustain the charges of the contestant and completely
overcome the plurality for contestee on the face of the returns.

Mere irregularities in the conduct of the election, where it does not
appear that the legally expressed will of the voter has been suppressed
or changed, is insufficient to impeach officially declared votes and
have been disregarded. But a succession of unexplained irregulari-
ties and disregard of law on the part of intelligent officials removes
from the ballot-box and the official returns that sacred character with
which the law clothes them, and makes less conclusive evidence suffi-
cient to change the burden upon the party who maintains the legality
of the official count.

Paine on Elections, section 596, says :

While it is well settled that mere neglect to perform directory requirements of law,
or performance in a mistaken manner where there is no bad faith and no harm has
accrued, will not justify the rejection of an entire poll, it is equally well settled that
when the proceedings are so tarnished by fraudulent, negligent, or improper conduct
on the part of the officers that the result of the election is rendered unreliable, the en-
tire returns will bo rejected and the parties left to make such proof as they may of the
votes legally cast for them.

The laws of Virginia recognize the weaknesses of human nature and
the necessity of having friends of the candidates representing different
views upon the elect ion boards to guard against the temptation to vfhicli
a board whose members all affiliate with one political party might be sub-
ject. 437

438 LANGSTON VS. VENABLE.

The following provisions of the Virginia law are referred to in con-
nection with the case:

SEC. 117. How judges of election appointed; failing to attend, who to act. It shall
be the duty of the electoral board of each city and county, prior to the first day
of March in each year, to appoint three competent citizens, being qualified voters,
who shall constitute the judges of election for all elections to be held in their
respective election districts, for the term of one year, dating from their appoint-
ment, and who shall have power to appoint two clerks for each place of voting at
such election, to whom shall be administered by the judges, or either ot them, the
same oath as that taken by the said judges. Whenever it is possible to do so, the
persons so appointed judges of election, shall be chosen for each voting place
from persons known to belong to different political parties, each one of whom
shall be able to read and write. The members of any electoral board who shall
willfully fail to comply with this requirement, shall be deemed guilty of misde-
meanor, and on conviction thereof shall be fined not less than one hundred nor
more than five hundred dollars ; but no election shall be deemed invalid when
the judges shall not belong to different political parties, or who shall not possess
the above qualifications. Should any judge of election fail to attend at any place
of voting for one hour after the time prescribed by law for opening the polls at
such election, it shall be lawful for the judge or judges in attendance to select from
among the bystanders one or more persons possessing the qualifications of judges of
election, who shall act as judge or judges of such election and who shall have all the
powers and authority of judges appointed by said electoral board : Provided, however,
That if the judge or judges present have information that the absent judge or judges
will not attend, he or they need not wait for the expiration of an hour, or any other
time. Should all the judges appointed for any place of voting fail to attend at the
place of voting for one hour after the time prescribed by law for opening the polls at
such election, it shall be the duty of any justice of the district in which the election
is held, who shall be applied to for that purpose, or the mayor, if the election is iu any
election district is in any town or city, to appoint three judges of election for such elec-
tion district, who shall possess the same qualifications and have the same powers as
judges appointed by an electoral board. Should no judges of election be appointed
for any county, city, or place of voting therein, or if appointed they neglect or refuse to
act for one hour after the time prescribed by law for opening the polls at such election,
it shall be lawful for any three qualified voters of the district, who shall be present and
willing to act, upon taking the oath prescribed for judges of election, to proceed to hold
conduct, and certify the election in the manner provided in this chapter, and, for that
purpose, shall have all the powers and authority of judges appointed by an electoral
board.

SEC. 3849. Judge, clerk, etc., failing to attend election, how punished. If any judge,
clerk, or commissioner of election fail to attend at the time and place appointed for
such election, or to perform any of the duties imposed on him by law, without good
and sufficient reason, he shall be fined not less than ten nor more than one hundred
dollars.

SEC. 3850. Officers, etc. , neglecting his duty in regard to election, or doing it corruptly, how
punished. If any oflfcer, messenger, or other person on whom any duty is enjoined by
law relative to general or special elections, be guilty of any willful neglect of such
duty, or of any corrupt conduct in the execution of the same, he shall be fined not
exceeding five hundred dollars, and confined in jail not exceeding one year; and if
any officer be convicted as aforesaid he shall be removed from office.

It is very evident from the last two sections quoted that the law in-
tended that no change should be made in the legally constituted board
except for most urgent reasons, and that men appointed before the com-
mencement of a heated campaign could alone be trusted with the im-
portant duties of impartially recording the votes of self-governing
freemen.

SEC. 12 s . How polls closed ivhen votes canvassed and result declared. As soon as the
polls are finally closed (of which closing proclamation shall be made by the judges
fifteen minutes previous thereto), the judges shall immediately proceed to canvass the
vote given at such election, and the said canvass shall be continued without adjourn-
ment until completed, and the result thereof declared.

SEC. lv!9. How rotes canvassed. The canvass shall commence by taking out of the
box the ballots unopened (except so far as to ascertain whether each ballot is sinjjle),
and gounting the same to ascertain whether the number of ballots corresponds \\ith
the number of names on the poll books ; and if two or more separate ballots are found
so folded together as to present the appearance of a single ballot, they shall be laid
aside until the count of the ballot is completed. If upon a comparison of the said

LANGSTON VS. VENABLE. 439

count with the number of names of electors on the poll-books, it appears that the
two ballots thus folded together were cast by the same elector, they shall be de-
stroyed. If the ballots in the balloc-box are still found to exceed the number of
names on the poll books, all of the ballots shall be replaced in the ballot-box; and
after the same shall be well shaken, oueof the judges of the election being blindfolded,
shall draw therefrom a sufficient number of ballots to reduce the same to a number
equal to the number of names of electors ou the poll-books. The number of ballots
thus being made to agree with the number of names on the poll-book, the books shall
be signed by the judges and attested by the clerks, and the number of names thereon
shall be set down, in words and figures at the foot of the list of electors on the poll-
books, and over the signature of the judges and attestations of the clerks in the
manner and forin prescribed by section one hundred and twenty. Whenever the
number of ballots is reduced, 'by the destruction of fraudulent ballots, below the
number of names of electors on the poll-books, the cause of such reduction shall be
stated at the foot of the list of electors on the poll-books, before the same are signed
and attested by the judges and clerks respectively.

SKC. 130. Now votes counted and returns made. After the poll-books are thus signed
and attested, the judges shall, if desired, in the presence of not exceeding two friends of
each political party represented by the persons voted for in such election, proceed to
count and ascertain the number of votes cast for each person voted for; and the tick-
ets or ballots shall be distinctively read, and as soon as read and canvassed shall be
strung by one of the judges on a string, and the clerks shall set down on the poll-
books, next after the certilicate of the judges at the foot of the list of electors as the
returns of the election, the name of every person voted for, written at full length,
the office for which such person received such votes, and the number of votes he re-
ceived ; the number being expressed in figures, and also at full length in writing, in
accordance with the form prescribed in said section one hundred and twenty; which
said returns when so made out, shall be signed and attested as provided in said sec-
tion, but no person other than the judges of the election shall handle the ballots.

There are numerous instances in the record of unwarranted changes
in judges of election, made without reason or excuse only a few days
before the election. These are suspicious circumstances, but standing
alone and not supported by evidence of fraud at the polls, affecting
the result of the election, they have been disregarded, and the certi-
fied returns permitted to stand as made. In arriving at results, spe-
cific acts at certain designated precincts are alone considered, without
unnecessarily dwelling on the general political and race features of the
district.

The contestee was the candidate of the regular Democracy. The
party affiliations of contestant, as far as this contest goes, are a matter
of dispute. The contestee maintains that he (contestant) ran as an in-
dependent candidate in opposition to the regular Eepublican nominee,
Mr. Arnold. Much evidence introduced by contestee deals with the
regularity of the Eepublican convention and the questionable features
of Mr. Langston's candidacy as viewed from a strict party standpoint.
The question which the committee has endeavored to solve is: Which
candidate received a plurality of the votes, and not who was the regu-
lar nominee? Whom did the voters of the Fourth district of Virginia
elect to represent them in the Fifty first Congress H and not what is the
percentage of white and colored blood in the veins of the respective
candidates. That there was marked race prejudice in localities in favor
of and against Mr. Laugstou is apparent from the evidence. It is a
matter for regret, and one not creditable to either race. Taking the evi-
dence of contestee's witnesses alone and it clearly establishes the prac-
tically solid support of Mr. Langstou by the negroes of the district.
The testimony of J. H. Van Auken, A. W. Harris, W. W. Evans, and
other witnesses for contestee fully proves this. Mr. Van Auken testi-
fies, on pages 956 and 957 on cross-examination, as follows :

13'M. Question. Then, explain, if you please, how with Arnold, the regular nomi-
nee of the party, supported by its entire organization in all its great influence, skill,
manage.mM)t, and outlay, Arnold run so poorly in the district ? Aus. For long months
prior to the election, and for long months before the convention, Mr. Langston had,

440 LANGSTON VS. VENABLE.

unopposed, been making a canvass, in which he and his emissaries had insidiously
and industriously played upon the passions and prejudices of the colored people,
basing his claims to Congress largely on the fact that the negroes outnumbered tho
whites very largely, and it was time for them to send a negro to Congress. Ho
aroused even the women, got up an immense religious fervor in his favor, and aroused
the prejudice of the large mass of the unthinking colored people to such an extent as
I never witnessed before and hope never to witness again. It was at white heat in
Sussex County the week prior to the election, so much so that I was impressed with
the opinion, and expressed it, that they would not then even listen to the Lord Jesus
Christ, much less vote for him, if he were a white man and appeared against Langston.
This feeling was intensified largely under the teachings and leadership of yonng
colored men, who had no memories of the past, which enabled them to properly ap-
preciate what the Republican party had done for their race, hence no feeling of
gratitude.

With such feeling in the district the election of Langston was cer-
tainly to be expected.

It was clear that Arnold, who was receiving the support of the
chairman of the Eepublican Congressional district committee and the
party organization, as far as the chairman was able to control it, was
virtually distanced in the race. All the bitterness en gendered against
a candidate, rightfully or mistakenly, accused of opposing the regular
nominee of his party, appeared in opposition to contestant by many
white Republicans, and tended to draw still more sharply the color line.

With this feeling in the district, the fact that on the very eve of the
election it was found convenient or necessary by the Democratic elec-
toral commissioners to remove Eepublican precinct judges of election
known to be friendly to contestant, and filling the vacancies with his
bitter opponents, without any reason or excuse for the change, is a
badge of fraud which can not be overlooked. This question will be
further discussed in connection with each precinct.

The census returns for 1880 give a total population in this district of
56,194 whites and 102,071 colored.

POAECH AND ROSS ELECTION DISTRICT, BRUNSWICK COUNTY.

At this precinct 69 votes were cast for Venable and 141 for Langstou,
a plurality of 72 for Laugston. This vote was regularly returned to the
county commissioners, but not counted for the alleged reason that the
same returns showed certalu votes cast for candidates for President and
Vice-President, instead of for electors of President and Vice-President.
For this mistake of the judges not only the electoral vote of this precinct
was thrown out, but the vote for every other candidate upon the ticket
was rejected by the county commissioners. This fraud now stands
confessed, and leaves the plurality for contestee as follows :

Returned plurality 641

Less plurality for Langston at Poarch and Ross precinct 72

569
LUNENBURG COUNTY LEWISTON.

The regularlv appointed judges at this precinct, appointed January
27, 1883, were W. P. Austin, B. H. May, and T. 0. Fowlkes. Austin
and May were present at the opening of the polls, but did not serve as
judges. Mr. May acted as one of the clerks. The acting judges were
E. G. Bayue, T. F. Kobertson, and E. C. Goodwin. All the judges and
clerks and the United States supervisor present were political oppo-
nents of contestant. With the exception of Mr. Austin, who testi-
fies that on account of illness it was impossible for him to serve, no
explanation is given for this sudden change of judges on the very

LANGSTON VS. VENABLE. 441

morning of election; but that it was in pursuance of prearranged plans
is apparent from the presence of Mr. Robertson at sunrise on the morn-
ing of election to serve as judge, he living some 8 or 9 miles distant
from the polls.

J. \V. Smith, a farmer and supervisor of Lewiston district, testifies on
page 814 of the record as follows :

37th. Was Captain Austin around the polls during the day? And if so, state how
often, how long he remained at the polls, and what he was doing there. Ans. He
was around the polls during the day. I don't remember how often, but I saw him
two or three times during the day on the election ground working in the interest of
Arnold.

38th. Name the U. S. supervisors at the polls at said precinct on election day, what
political party they belonged to, and what service they rendered. Ans. W. J. Bragg
was the only one I know of. He is a Mahoneite, and staid here all day until the polls
were closed, and then went home immediately after the polls were closed.

39tb. Were all the judges and the clerks of the election and the U. S. supervisor
the friends or opponents of Jno. M. Langston for Congress ? Ans. They were his
opponents.

40th. Were the polls abandoned by the judges during said election day? Ans.
They were ; they adjourned for breakfast ; they went out and staid at least three-
quarters of an hour. They also took a recess for dinner, and went out and staid at
least three-quarters of an hour or an hour, as well as I can remember.

41st. Were there Democrat, Republican, and Mahoue ticket holders at the polls of
your precinct on election day, November Gtb, 1888? Ans. There were.

44nd. State whether or not ballots were in the rooms where the polls were held
laying loose near the ballot-box on said election day. Aus. Yes; there was a pack-
age of Democratic ballots laying iu a few feet of the ballot-box.

43:1. State what was done when the polls were closed at sundown on election day,
November 6th, 1888. Ans. The clerks of election and everybody else, except the
judges, were excluded from the room, and the judges immediately proceeded to open
the ballot-box and count the ballots. A few minutes before the polls were closed I
asked one of the judges to let me stay in and see the ballots counted. He objected,
and suid they did not want anybody in the room but the judges that was just a few
nihm'.fs before the polls closed. I came out then and saw Mr. May, who was one of
the cVrks, and asked him could I go in with him, and he said I could. We staid out
I guess about half an hour, and when we went to the door to go in we had to wait
at least fifteen or twenty minutes. In the mean time Mr. King rapped at the door
several times, but they would not open the door. When we did go in the ballots had
all been taken out of the box and were in three separate lots on the table. I asked
one of the judges how the vote stood, and he replied that Langston had fifty-six,
Arnold fifty, and Vennble one hundred and thirty-three. The clerks then looked at
the books and found that there were twenty-five more ballots than there were names
on the poll-books. They then blindfolded one of the judges and drew out twenty-
five ballots, thirteen of Venable's, eight of Langstou's, and four of Arnold's.

44th. You have stated that two of the officers of the election, the clerks, were ex-
cluded from the room where the count of the vote was being made, by the judges of
the election. State how long it was before the clerks were admitted to the room,
and whether or not their said admission was obtained easily or under difficulties.
Ans. I think said clerks were out fully an hour. Their admission was not obtained
easily. Mr. May went to the door and rapped good many times, and they had to
wait fully fifteen minutes before they could get in, and the judges knew very well
who it was, too. I mean to say the clerks were not admitted until the judges got
ready to open the door. The door was locked. They then got in easily enough when
the door was unlocked.

45th. How many votes were cast for Jno. M. Langston for Congress at your said
precinct on said election day ? Ans. I believe there were sixty-six cast for him.

The excess of ballots appears by the return of the judges to have
been .!(>. Mr. Smith also testifies to the fact that the polls were held in
an unusual place. The customary place for holding the election at this
precinct had been the court-room of the court-house. At this particular
election it was found advisable to occupy a small jury room aud ex-
clude all witnesses, not excepting the clerks of election, which would
have been impracticable in the large and commodious court-room.

William Smitb, a farmer, sixty-two years old and a resident of

442 LANGSTON VS. VENABLE.

Lunenburgh county all his life, was called as a witness, and the follow-
ing is quoted from his testimony:

4th. Can you state positively whether or not Captain Austin was at the polls before
the voting commenced ? Ans. Yes, sir; he was there before iny work was done. He
was in the room when the judges swore Ihemselves in; him and Mr. May both.

5th. Were Captain William P. Austin and B. H. May the judges of election at^our
precinct on election day ? And'if they were not, please give the names of the per-
sons who served as judges of election. Ans. They were not the judges that conducted
the said election. E. G. Boyre, T. F. Robertson," and E. C. Goodwin were the judges
who conducted said election.

(5th. Why is it that Messrs. Boyre, Robertson, and Goodwin served as judges of
election at your precinct, when Messrs. Austin and May, the two duly appointed
judges of election, were at the polls before the voting commenced? Ans. I CAN'T

TELL YOU, WITHOUT THEY WANTED TO DO SOMETHING THAT C.APT. AUSTIN AND Ml{.
MAY DID NOT WANT TO GO INTO.

7th. Was there any explanation made of it at the polls? Ans. No, sir; they just
went right in and went to work like they had been appointed by the board.

8th. What time did the polls open on the morning of the election ? Ans. The sun
was only about five minutes high when they commenced.

9th. When did Captain Austin first leave the polls after the voting had com-
menced I Aus. Some eight or ten had voted when Captain Austin was inside.

10th. How often did you see Captain Austin at the polls during the day, how long
did he remain there, and what was he doing ? Ans. All day long he was on the
election grounds with his tickets in his hands.

llth. Where were the polls held f Were they held at the usual place of voting?
And, if not, describe the place where they were held, and describe the difference
between the place where they were usually held and the place where they were held
November the 6th, 18:8. Aus. The polls were held in one of the jury-rooms, not the
usual place of voting. The place where they were held was in one of the jury-rooms.
One of them is a large room and one is a small room. The room that they got in last
election was a jury-room, where the judges got in and could shut the door and
keep the people out. I told the judges of election that morning that there was
something another wrong going to be done here to-day, and some of them replied to
me, why ? And I told them because they were holding the election in a room.

12th. 'Did you see any ballots lying loose near the ballot-box during the day?
Aus. I did, sir. They had the door opened about ten inches, and the box was set-
ting sorter m front of the door where we could see it, and the judge who received
the tickets he was sitting right in front of the crack of the door, and right behind the
judge sitting there laid a handful of Democratic tickets.

13th. Who were the clerks and who was the U. S. supervisor at said election?
Ans. Mr. B. H. May and Jtio. W. Cleaton were the clerks, and W. J. Bragg was the
U. S. supervisor.

14th. Were all the officers of election friends or opponents of Juo. M. Langston for
Congress ? Aus. They were all his opponents.

lf>i h. Were or were not the polls abandoned during the day by the judges of elec-
tion I Ans. They took a recess for breakfast and for dinner.

Kith. State what happened when the polls closed. Aus. Directly after the polls
closed the clerks came out and the supervisor and I said to Mr. Cardozo that the
supervisor had come out and gone off home, and I told him I was going after the
supervisor to come back and see the votes counted, and Mr. Cardozo said the super-
visor WHS sick. I did not go after him. The clerks staid out, I reckon, at least an
hour, and we went to the door and asked the judges to let us come in, and they refused
to do it. And in about an hour Mr. May came back and they turned the two clerks in
and J. W. Smith.

17th. State anything else you know. Ans. Myself and Mr. Jno. W. Cleaton, who
was one of the clerks of the election, got to talking after the election, and Mr.
Cleaton told me that the judges of election ordered them out of the room that night,
and said if they knew he had not been a good Democrat they would not have let him
serve as a clerk of the election, and he asked them why, because he told them that
he never saw them order the clerks out of the room before.

18th. Was this Mr. Cleaton an old clerk of the election at this precinct? Ans. He
was.

l ( Jth. Under what circumstances did Mr. Cleaton make this statement to you ?
Aus. He came by my house, and got me to carry him part of the way home, and
made said statement to me in the presence of his son.

Let it be remembered that this is not disputed by evidence. Mr.
Cleaton was not called as a witness, presumably for the reason that,
if called, be would have corroborated the statements of Mr. Smith.

LANGSTON VS. V ENABLE. 443

W. P. Austin, the supplanted judge, was called as a witness by
contestee. He testifies that the judges and clerks had been sworn in
before he reached the polls and before one hour after the time for
opening the polls had expired. This was in direct violation of the
statute quoted above. This is not disputed or explained.

T. F. Kobertson was the only one of the judges sworn to sustain
their acts. He guardedly swears in answer to the leading question
whether the election was fair and honest, "It icas as far as I saw, sir."
He also testifies to his inexperience in election matters, arid was no
doubt put forth as a witness because he, of all the judges, was inno-
cently ignorant of the illegal acts of his colleagues, whose caution
kept them from taking the stand.

On cross examination Mr. Eobertson says, page 1097.

28th. Please state when the canvass of the vote commenced after the polls were
closed at sundown. Ans. Just as quick as we could ; no recess was taken.

29th. Where was the clerks of election, B. H. May ami J. W. Clinton, when the
ballot-box was opened to proceed with the count and canvass of the vote ? Ans. I
don't know ; they were there just theu. Mr. May excused himself; said he had some
business he had to attend to. Mr. Clinton excused himself, that he wanted to walk
about a little, and we could go on without them as easy as we could with them. By
the time we got the tickets divided they knocked at the door and we turned them in,
Jno. Wm. Smith, Republican, E. J. Toone, Democrat, with them.

30th. Then it is a fact that the ballots were taken out of the ballot-box and divided
into different piles during the absence of the two clerks of election, is it not? Ans.
Yes, sir ; by Mr. E. G. Bayne, Republican.

31st. Please describe how the ballots were taken out of the ballot-box in order to
count them. Ans. We took the top off of the box and turned it upside down and
poured them all down on the table in one pile.

32nd. Then it is a fact that the ballot-box was turned upside down and the ballots
were dumped in one pile on the table, instead of taking them out from the ballot-box
singly, one by one ; is that so ? Ans. Yes, sir ; and then they were picked up one by
one and separated.

34th. How long were Clerks of Election Clinton and May absent ? Ans. Not more
than fifteen or twenty minutes, I reckon.

35th. How often did they knock at the door, and how long were they knocking at
the door in order to gain admission into the room ? Ans. They knocked several
times; they were, sir, I reckon, something like five minutes; we were busy dividing
the tickets and did not want to stop, but had it to do to get rid of their fuss.

36th. What was Mr. Bayne's, the judge of election, condition? Was he perfectly
sober at this time, or was he under the influence of intoxicating liquors? Ana. 1 do
not know whether he was or not ; he appeared to be mighty badly excited; whether
he was tight or not I do not know.

37th. How many ballots were there found in the ballot-box in excess of the total
number of names found on the poll-books? Aus. Twenty-six.

38. How long did it take to canvass the vote and who called off the ballots ? Aus.
I don't recollect. E. G. Bayne, with Juo. Wm. Smith to help him.

39th. Was not Mr. Bayue's condition such at this time that he required of Jno. Wm.
Smith to enable him to call off the ballots ? Ans. In the beginning he seemed to be
quite nervous, and after calling off the names on a dozen or so tickets, he then went
on without the assistance of anybody.

40th. Who else, besides Judge of Election Bayne, handled the ballots, counted, and
read off the same? Ans. E. C. Goodwyn and myself, the two other judges, helped
to count them ; neither of us read off any names, but looked on, and I strung the
tickets as he read them off.

41st. Which one of the judges or clerks of election, if anyone of them, was friendly
towards Jno. M. Langstou for Congress? Ans. All of us, I reckon, sir; I have no
animosity against him, and 1 don't reckon the others had.

42nd. You have stated that E. G. Bayue was a Republican. How do you know that
fact ? Ans. He told me so two or throe weeks ago.

43rd. Please state, if you have no objection, to which political party yon belong,
and what candidate for Congress you supported during the last Congressional cam-
paign. Ans. I supported Mr. E. C. Venable, and am to-day and was born a Democrat,
and am to-day, and expect to" die so.

44th. To what political party did Mr. E. C. Goodwyn, the other judge of electiou,
and Mr. B. H. May and J. VV. Clinton, the last two, who were clerks of electiou, be-
long during the last Congressional campaign in this district? Ans. I would not
swear that I know what either of them are, except Mr. B. H. May, but they told me
they were Democrats. Mr. May is a Democrat.

444 LANGSTON VS. VENABLE.

The clerks were not called as witnesses.

The only United States supervisor serving, W. J. Bragg, left im-
mediately after the closing of the polls, not to return, and was con-
sequently ignorant of any of the illegal acts of the judges charged.
The committee is of the opinion that the excess of 20 ballots in a total
vote of about 200 could not have occurred without the connivance of the
judges of election, and is such evidence of fraud as must necessarily
exclude this box. Contestee does not in his briefs even mention the
excess of ballots. The returns awarded Venable 119, Langston 48, and
Arnold 46 votes. The returns are impeached and rejected. No com-
petent evidence was offered as to the true vote cast. The account now
stands :

Plurality for Venable 569

Deduct plurality for Venable at Lewiston, which is equivalent to rejecting the
poll ' 71

Leaves plurality for Venable 498

MANNBORO, AMELIA COUNTY.

The electoral commissioners of Amelia County reported this precinct
as having given 122 votes for Venable, and 111 for Langston. The
regularity of this return was challenged by contestant in his notice of
contest. The only thing in the Eecord bearing upon this question is
found on page 173, giving the following unsigned statement:

FOR CONGRESS.

E. C. Venable rec'd (122) one hundred and twenty-two votes.

John Mercer Langston rec'd (111) one hundred and eleven votes.

R. W. Arnold rec'd (73) seventy-three votes.

After the names, etc., are all set down, and at the foot of the list, a certificate in
the following form is required to be given :

We hereby certify, That had votes for ; and had

votes for ; that had votes for , &c.

Clerks. Judges.

If this is the act of the officers of election it is difficult to see why the
contestee did not introduce some evidence to show that fact. As it is
the plurality of eleven returned for coutestee must be deducted from his
former vote.

Plurality for Venable 498

Deduct plurality for Venable returned in Mannboro 11

Leaves plurality for Venable 487

CITY OF PETERSBURG:.

This brings us to the city of Petersburg, the home of contestant, and
the center of population and politics of the district. And it becomes
proper here to give the general plan pursued by contestant in the dis-
trict to test the fairness and honesty of the election returns. There is
abundant evidence that apprehension of frauds were well founded, and
contestant proposed to disclose them.

M. N. Lewis, thirty years old, an editor and lawyer, residence Peters-
burg, had charge of the campaign of contestant as secretary of his cam-
paign committee, and in his testimony details the methods pursued.

LANGSTON VS. VENABLE. 445

A circular letter issued by contestant to friends in different parts ol
the district is testified to by this witness. We quote the following ex-
tract from it, found on page 539 of the Record:

THE ELECTION.

The afteruoon before the election, on Monday, November 5th next, see that the
tickets are at your precinct ; and if you do not receive them or know where they are
go at once to the court-house and ascertain where they are. This is very important,
because no man can vote without a ballot. On election morning be at the polls
without fail at least lifteen minutes before sunrise. Not later than 6.30 o'clock a. m.
On November 6th the sun rises at 6.42 o'clock and sets at 5.06 o'clock.

If the judges and clerks of election are not present, send some trusted friend for
thorn, and if they do not come by 7.15 o'clock a, m., consult some of the respectable
white voters at the polls and take proper steps to open the polls and conduct the
election.

I presume that the white voters present will take sufficient interest to conduct the
election in the manner prescribed by law ; but if they do not, send at once for some
good lawyer, engage him at a reasonable fee to come to the polls and open the polls
and conduct the election under his instruction. He will find the full instructions in
the new code, a copy of which every justice of the peace has in his possession, and
whicii you .should borrow from him and study the registration and election laws as
soon as you receive these instructions.

On the election day the most important part of your duty is to be discharged. I send
you herewith blank book and blank returns. Yourself and another reliable intelli-
gent man must remain at the polls all day ; do not, I urge you, leave the polls for any
purpose whatever, unless you leave in your place during your absence a reliable, in-
telligent frieuu who can read and write. In the book I send you do not fail to enter
the names of every voter who casts his ballot for me on election day at your voting
precinct. This is very important, and I shall depend upon your careful attention to
it. Enter the names plainly of every man who votes for Langston. Do not fail to do
tli is. The record of the names of every man who votes for me may be vital to my in-
terest. Yovi will find printed instructions in each book, which read and carefully
follow during the day and after the polls are closed.

I ask your special attention to the " election return," as per blank form herewith.
Please read the instructions at the bottom of the same and be careful to observe them
strictly. When the polls are closed select an intelligent friend to go inside and wit-
ness the counting of the ballots, and instruct him to look and see that the returns are
all propei ly made out and signed by the judges and clerks of election according to
the t'orui on the poll -books. Do not fail to realize the great importance of having
the returns made out properly; if they are not, the commissioners of election for
your county may reject them and adjourn without observing the law as to amended
returns.

On the night of election notify me in writing of every irregularity, fraud, ballot-box
stuffing, or any other violation of law on election day at your precinct, and be care-
ful to give me full particulars.

I ask you to read these instructions over and over again. Impress every point
upon your mind, and if you do not understand them let me know.

liemember, my friend, that iny election may depend upon your efforts.

Please acknowledge receipt of this circular-letter immediately, so that I may know
that you have received it and can rely upon your attention to the same.
I am, sincerely, your friend,

JNO. MERCER LANGSTON.

To ,

, Precinct,

, County.

At the Republican Langston clubs in the city of Petersburg!! it was
agreed that every supporter of Langston should vote an open ticket;
that he should show his ticket to some reliable friend of Langston se-
lected for the purpose of registering the names of the Laugston voters
and witnessing the deposit of their ballots in the box. This plan was
very generally followed by the enthusiastic supporters of contestant,
and the results piomptly reported to him after election. With this plan
of campaign in mind we will consider the election in the third and
sixth wards of Petersburgh. There seems to have been a general belief

446 LANGSTON VS. VENABLE.

on the part of the supporters of contestant that it would be necessary
to prove the true vote by other means than the returns, and they re-
sorted to the only means to do so within their power.

THIRD WARD.

The returns from this ward give Tenable 518, Langston 174, and
Arnold 105 votes.

M. N. Lewis, the witness referred to above, testifies that he was at
the polls all day, from the opening of the same until long after they
closed, and kept tally of the Republicans voting for Laugston and Har-
rison, in pursuance of the instructions of his party.

The judges and clerks of election were all Democrats and bitterly
opposed to contestant. Only one United States supervisor served, and
he a Democrat.

The following extracts are submitted from the testimony of Mr.
Lewis, which is too voluminous to quote at length :

44. Question. Do you or do you not know Wm. Crichton, Jno. F. Williams, and Vir-
ginius S. Weddell ? Answer. I do ; they were the judges of election in 3rd ward.

45. Question. At what election were they the judges of the election ? Answer.
Electiou held Nov'r 6th, 1888.

46. Question. Do you know or not R. W. Bowdeu and Thos. S. Griffin ? Answer.
Yes, sir ; they were the clerks of the election held Nov'r 6th, 1888.

47. Question. Do you or do you not know G. B. Gill? Answer. Yes, sir; he was
the U. S. supervisor at 3rd ward polls, Nov'r 6th, 1888.

48th. Question. How many U. S. supervisors were on duty at the polls in the 3rd
ward, this city, on election day, Nov'r 6th, 188? Answer. Only one, a Democratic
supervisor, Gorman B. Gill.

49th. Question. Please state what political party all the judges and clerks of elec-
tion and the U. S. supervisor at the 3rd ward on election day, Nov'r 6th, 1888, be-
longed f Answer. To the Democratic party ; each one of whom voted the straight
Democratic ticket iu my presence.

50. Question. Please state whether or not all the officers of election were bitterly
opposed to Prof r Langstou's election to Congress ? Answer. They were.

51. Question. Please state whether or not you know F. R. Clements, who was ap-
pointed U. S. supervisor, 3rd ward, this city, at the said election. Answer. I do.

52. Question. Did he serve as U. S. supervisor at said ward on said election day ?
Answer. No, sir ; nor was he seen about the polls until late in the afternoon of elec-
tion day, Nov'r 6th, 188H.

59. Question. Do you or do you not know how many colored votes were cast at the
3d ward polls on said election day for E. C. Venable for Congress ? Answer. Not
more than 15.

60. Question. Do you or do you not know how many colored votes were caot at the
3d ward polls on said election day for R. W. Arnold for Congress? Answer. About 20.
There were not more than 50 ballots cast by the voters at 3rd ward polls on elec-
tion day, Nov. 6th, 1888, for R. W. Arnold.

62. Question, Did you or did you not,, as a friend and supporter of Pro fr. Lang-
ston's, apply to one of the judges of election to be allowed to enter the room when
the polls closed at sundown in your ward at said election in order to witness the
count and canvass of the vote? Answer. I had been allowed to go into the polls of
the 3d ward to witness the count of the ballots at nearly every election for the last 6
years. I applied on the 6th of Nov'r, 1888, when the polls closed, to Mr. William
Crichton, one of the judges of the election, to be allowed that since there was neither
a Republican judge, clerk, or supervisor in the polls that I be allowed to come in
and witness the count of the ballots, and was refused admission. I will state further
that no Republican witnessed the count of the ballots in 3rd ward on the 6th day of
November, 18-8.

63. Question. How long did the said count and canvass of the vote of your ward
last ? Answer. Until about 11 o'clock.

64. Question. Did you keep a record at the polls of the 3rd ward on said election
day, and if so, what record? Answer. I kept a record of the votes cast for Jno. M.
Langs ton.

65. Question. Why was this record kept at the polls of the 3rd ward on said elec-
tion day of the votes cast for Jno. M. Langston ? Answer. In order to be able to
know how many votes were cast for Jno. M. Langston for Congress.

LANGSTON VS. VENABLE. 447

66. Question. State where you stood at the polls of the 3rd ward on election day
and how long you remained there? Answer. There were two entrances to the 3rd
ward polls, one for the white voters by which they approached the ballot-box, the
other by which the colored voters approached the ballot-box. I stood right at the
entrance where the colored voters approached the ballot-box, and where I could see
the ballots given by the voter to the judge who received the ballots and deposited
them in the box. I was there from sunrise until sunset, only leaving once for about
30 minutes. I saw and read the ballot of every \oter whose name I have checked on
my book, and I saw the same ballot which I read in the hands of each voter deposited
by the judge in the ballot-box.

67. Question. Have you the said record books in your possession? Answer. 1 have.

68. Question. Are the four books you have now here before the notary public the
identical four books you had at the polls in the 3d ward on election day, November
the 6th, 1888? Answer. Yes, sir.

C.9th. Question. Did you or did you not enter in your own handwriting the names
of the colored voters in the identical four books you have now before the notary
public at your ward on election day, Novr 6th, 1888, at the time the said colored
voters cast their ballots ? Answer. I entered all the names with the exception of a
few that were entered during the 30 minutes I was away from the polls.

70. Question. When and under what circumstances did you particularly observe
the ballot of each colored voter before recording his name in said book ? Answer.
I read his ballot carefully, and after I had seen the judge, to whom he handed his
ballot, deposit it in the ballot-box I then placed his name on my book.

71. Question. Please give the name of the judge or judges of election who received
the ballots from the voters at the polls of your ward on said election day. Answer.
Wm. Crichton.

72. Question. Please examine the ticket I hand yon and state whether or not the
ballot you saw in the hands of each voter of the 3rd ward on election day, Nov'r 6th.
1888, and which was delivered to and received by the judge of election, was identi-
cally like the ballot I hand you, and did you or did you not enter upon your said
books the name of each colored voter who cast a ballot identically like the one here
presented to you? Answer. This is the identical ballot voted by each voter whose
name I put upon my book.

The ballot here filed is a straight Republican ballot, with Langston
for Congress.

73. Question. You have stated that you stood at the polls of the 3d ward all the day
of election from the opening to the closing of the same, excepting about 30 minutes,
and that you were immediately at the polling place of the 3d ward in this city ; that
then and there you took down in the four books which you have here identified and
handed to the notary public the name of every colored voter, showing you a ticket
identical with the one you have just examined, and which is filed with these deposi-
tions, marked Exhibit M, after said ticket had been delivered to and received by the
judge of election at said ward on election day, Nov'r 6th, 1888. Now please give the
name of each voter who you so entered in said books as you have stated ?

The witness here gave the names of 286 voters recorded by him as
all (except two indicated) having voted for contestant, and filed the
four books containing the names with the notary taking the evidence,
and they are in the possession of the committee. The names appear
in the record. The word " Langston " is written after each name in
these books, except the names numbered 222 and 227, which are marked
u Dem."

74. Question. You have stated that you occupied the position immediately at the
window of the polling place in the 3d ward, on the side at which the col'd people
voted, all the day of election except about30 minutes. Pleasestate how many names
were entered upon the books you kept during your absence, if any were so entered.
Answer. 16.

These sixteen names were fully identified by Wm. J. Smith, who
entered them in the absence of Mr. Lewis.

78. Question. You have stated that on election day W. J. Smith during yonr tem-
porary absence from the polls, entered the names of 16 colored voters upon the 4 books
which you kept. Please state, if you remember, how many names you recorded upon
the said books on that day at the time and under the circumstances already testified
to. Answer. I recorded two hundred and one names. The others, with the excep-

448 LANGSTON VS. VENABLE.

tion of 16 names, were recorded in my presence and by my instructions by Wm. J.
Smith and S. B. McE. Jones.

7;). Question. Have you, since the 6th day of Nov'r, 1888. compared the 4 books aa
to which you have been testifying with the poll-books of the 3d ward, on deposit
in the clerk's office of this city, or with either one of said poll-books, or with a certi-
fied copy thereof? Answer. I have compared the 4 books with one of the poll-books.

80. Question. State whftt object you had in making such comparisons, and state
the result of it. Answer. I compared the books to ascertain if they agreed. I found
that a great many of the nams were misspelt, and some few whose names I took and
whose ballot I saw deposited, their names do not appear on the poll-book which I
examined.

til. Question. Are you able from memory, or by reference to any memoranda taken
at the time of making such comparison, to say what names there were which you
entered ou your said books of persons whom you saw Deposit 1 heir ballots at 3rd
ward, and which names do not appear on the poll-book you have said you examined!
Answer. I can.

82. Question. Then please state these names.

Answer. R. P. Armistead, Richard Bragg, Solomon Crawford, Jno. Hawkes.
Stephen Royd, R. W. Smith.

83. Question Do I not understand you, then, to say that with the exception of
these 6 names (and making no reference to the differences in spelling) the record of
names on the official poll-book of 3rd ward of the voters at the last election contains
all the names of the col'd voters recorded in your 4 books as having voted on that
day ? Answer. It does.

The verity of Mr. Lewis's books stands unquestioned. Not one of the
280 voters of the Third ward registered by him is called to dispute the
fact that he voted as Mr. Lewis testified he saw him vote. Not one of
the six men not registered by the clerks, but whom Mr. Lewis says he
saw deposit their ballots, was called to testify that he did not vote on
that day. This would have been a short and decisive way to have im-
peached the testimony of Mr. Lewis, and it was a way quickly resorted
to by contestee to impeach a similar record at Columbian Grove, Lunen-
burgh County. In that precinct the contestant called a witness who
testified that he saw 130 votes cast for contestant, and gave the names
of the voters. Two of these voters were called by contestee, and testi-
fied that they did not vote for contestant. The committee has permitted
the vote of Columbian Grove to stand as returned. That precinct is
referred to to illustrate the alertness of contestee in similar cases to
defend the returns by the oath of the voter where the facts warranted it.

On cross-examination Mr. Lewis was asked eight hundred and nine
questions, covering the political history of Virginia for years ; this did
not in any manner weaken his testimony in chief, but corroborated
and strengthened it. The cross-examination commenced February 12
and continued until February 25. We quote the following from it:

340. Question. You said in answer to the 334th question that the tally -keepers at
the polls who kept the tally of votes cast for Langston were instructed to put no
names on the tally-books except the names of those whom yon were absolutely sure
voted for him; will you please explain how any tally-keeper outside the house
could be absolutely certain how a man voted ? Answer. By seeing and reading his
ticket, which was in every instance which we have recorded, handed to the judge
who deposited them in the box wide open, the judge folding them instead of the
voter.

341. Question. Were Langston's tally-keepers also his ticket-holders at the polls?
Answer. No. sir.

34 % 2. Question. Then in each case where the name was entered on the tally-book,
did the voter bring his ticket to the tally-keeper that he might inspect it? Answer.
He brought it to me.

343. Question. Was this precaution adopted at every precinct is pursuance of the
confidential circular sent out by Prof'r Laugston and filed as a part of this record,
marked Exhibit H. ? Answer. Yes, sir.

344. Question. Did those who could read themselves bring their tickets to you?
Answer. Yes, sir.

345. Question. Then I understand you to say that in every case in which a name

LANGSTON VS. VENABLE. 449

was recorded in the tally-book that you kept that the ballot was brought to you,
that you examined the same, and that it was voted openly? Answer. Yes, sir.

346. Question. Was there not a press of voters at the 3rd-ward polls all day or dur-
ing a greater portion of the day Nov'r 6th, 1888? Answer. During the morning
hour.s the lines were continually kept up.

347. Question. Did the voters at 3rd ward approach the polls in regular lines I
Answer. Yes, sir.

348. Question. How many abreast did they approach the polls? Answer. Single
file, each line.

349. Question. Were you in a position to see the ballot voted which you had in-
spected ? Answer. Eight in front of the door and not 4 feet from the ballot-box.

350. Question. Were you on a level with the inside of the room when the ballots
were received 1 Answer. The elevation of the room from the ground is not more
than 6 inches.

:'51. Question. Then you were on a level with the voters, weren't you? Answer.
Yes, sir.

On the general subject of the conduct of the campaign, he says :

740. Question. What facilities for information upon these subjects have you had as
secretary of Langstou's campaign committee ? Answer. In every precinct in the dis-
trict the most intelligent and enlightened men were appointed to keep Langston
tally-books, and at least one book was forwarded to headquarters as soon as possible
after closing their respective precincts.

741. Question. Are those books still in your possession ? Answer. They are in the
possession of Prof'r Langston's leading counsel in this case.

74'xi. Question. Is there any formal and informal affidavit of the correctness of the
contents of these books made by the parties who were appointed by your campaign
committee to keep said books attached thereto? Answer. In each book pasted on a
fly-leaf is a certificate as to the correctness of the book, which is signed by the per-
son keeping said book.

743. Question. I understand, then, that such certificates are the mere unsworn
statements of Prof'r Langstou's campaign appointees and workers. Is this true ?
Answer. Yes, sir.

744. Question. Have you no other guarantee of the accuracy of said tally-books ?
Answer. No, sir.

745. Question. Have you any means of knowing whether said tally-keepers were at
their post during every minute of election day ? Answer. Yes, sir ; persons who were
present at each precinct from which we received these books assured us of the con-
stancy and faithfulness of these tally-keepers.

746. Question. Have you ever made any investigation of the constancy and faith-
fulness of these tally-keepers ; and, if so, when, and what caused you to make such
investigation ? Answer. We have ; a few days after the election, in order to satisfy
ourselves that these men had been faithful to the trust imposed in them.

747. Question. Had you any reason to doubt their faithfulness ? Answer. No, sir;
but as there had been such a wide difference between their reports and the official re-
ports we felt obliged to make investigation before entering into this contest.

748. Question. Where was this investigation held and by whom? Answer.* It was
held in the different counties by Mr. Langston's trusted friends.

749. Question. Were the witnesses put upon oath? Answer. They were not.

750. Question. Have you any personal knowledge or information received from
any one who had personal knowledge of the actual transfer of votes cast for Profr
Laugston to either of the other candidates at any election precinct in the district?
In other words, have you seen or has any one seen such act of misconduct on the
part of the officers of election, and are no:, the charges that you make as to the trans-
fer of votes based solely on the inferences which you make from the non-agreement
of your tally-books and the official returns? Answer. Of course we could not make
them by any other means, because at the specific places where these transfers were
made, in no instance was a friend of Mr. Langston's allowed to witness the canvass of
the ballots.

754. Question. Has it been the custom in this district in previous elections for the
electors to show their ballots to the party tally-keeper ? Answer. No, sir.

755. Question. Were there any steps taken previous to Nov'r Cth last, by Prof'r
Langston's campaign committee to bring about a change of custom in this regard?
Answer Yes, sir.

7."t>. Question. What steps were so taken and for what purpose ? Answer. For the
reason as I have before stated, we had every reason to believe that fraud would be
committed, aud in order that we might be enabled to ascertain how many ballots
were cast at each precinct for Harrison, Morton, and Laugston, special canvassers
were sent throughout the district and instructed to closely canvass each precinct and

H. Mis. 137 29

450 LANGSTON VS. VENABLE.

to urge upon the people that, as the opposing candidate wonld have all the officers of
election, the only remedy we had for frustrating their evil designs of fraud upon the
ballot-box would be for the Republican voters supporting Harrison, Morton, and
Laugston to show their tickets to the tally-keepers who wonld be supplied with
books at each precinct throughout the district for the purpose of recording the name
of each man who should so vote and exhibit his ballot to said tally-keeper.

W. J. Smith, a merchant of the Third Ward, city of Petersburg,
corroborates the testimony of Mr. Lewis as to what took place at the
polls in that ward. It is proper in this connection to call attention to
the fact that the tedious, irrelevant cross-examination of these two wit-
nesses consumed all the time allowed to contestant for taking evidence
in this ward and made it impossible for him to call, further witnesses.

On Saturday, the 9th day of February, contestant began taking
depositions as to Third Ward of the city of Petersburg, in pursuance of
notice which contained a list of 292 names of Republicans, every one of
whom it is claimed would have testified that he was a qualified voter,
and voted for Langston in Third Ward. (Record, pp. 514 to 516.) The
first witness sworn, M. N. Lewis, was asked by the coutestee's counsel
809 questions on cross-examination, and was kept on the witness stand
from February 9 (p. 523) until February 25 (p. 588), both inclusive,
a period of seventeen days. The second witness, W. J. Smith, was
sworn Monday, February 25 (p. 588), was asked 148 cross-questions,
and was kept on the witness stand until Saturday, the 2d day of
March, 11 o'clock at night, a period of six days (p. 599), when the time
limited by law for the contestant to take testimony expired, and the
notary closed the depositions. (Record, pp. 588 to 599.) By such
wanton waste of time contestant was robbed of the opportunity of
examining a large number of witnesses who he claims voted for him.
And contestee is estopped from claiming that the evidence of these two
witnesses is insufficient, having by his own acts prevented the taking
of further evidence in this ward.

The only official connected with the election who was called to sus-
tain the official count was the United States supervisor, Mr. G. B. Gill,
who in a general way testifies to the fairness of the election, and says
it is impossible for a person outside to keep tally of the votes as tes-
tified to by Lewis. On his cross-examination he makes the following
fatal admissions as to the fairness and impartiality of the judges, and
attention is called to section 130 of the Statutes of Virginia, quoted
above in this connection:

3d. Question. At the time of the closing of the said polls, or thereafter, did any of
the party friends of John M. Langston make a request of the judges of said precinct
or ward to be allowed to witness the count and canvass of the ballots of the vote cast
at said voting precinct ; that is, to be allowed to enter the room when the count of
the ballots and the canvass of the vote was made ? Ans. There was such a request
made, and the judges replied that there were United States supervisors appointed for
that purpose to see that the ballots cast were properly counted, and that no others
from either party would be admitted.

4th. Question. Then, I understand you to answer in your foregoing answer that the
party friends of John M. Langston were denied by the judges of election that request
or right ? Ans. Yes, sir.

5th. Question. Then, I understand you to answer further that said count and can-
vass without any party friends of the said John M. Laugston was made without their
witnessing the same ? Ans. It was made without the friends of John M. Langston,
E. C. Venable, or R. W. Arnold being present.

6th. Question. Was there any other United States supervisor of election who acted
with you on the said day of election ; and if so, who f Aus. There was not.

7th. Question. Were you appointed a United States supervisor as a representative
of the Democratic or Republican party ? Ans. I don't know. I received a commis-
sion from the chief supervisor, and he said nothing about it.

8th. Question. If you are willing to answer, will you state for whom you voted for

LANGSTON VS. VENABLE. 451

Congress on said election for this 4th Congressional district of Virginia? Ans. I de-
cline to answer.

9th. Question. Do yon know of your own knowledge whether any other United
States supervisor was appointed for said voting precinct ; and if so, who ? Ans. Yes ;
F. K. Clements was appointed.

10th. Question. Do you know of your own knowledge why he did not act as such ?
Aus. I do not.

Two police officers, George W. Dunn and J. M. Young, were called to
contradict Lewis as to his continuous attendance at the polls. Dunn
says Lewis was at the polls only about an hour and a half in the morn-
ing and left ; that he returned late in the evening. In this he contra-
dicts not only Lewis but all the witnesses of contestee, and shows him-
self wholly unworthy of credit. He was himself at the polls all day.
He can not name a single colored man who voted the Democratic ticket.
He knows nothing of the political complexion of the police force, but
can not name a Republican on it. He says no one could have seen the
ballots except the judge who received tbem. This judge, who of all men
in Petersburg!! could have testified in relation to the action of Lewis on
that day, was not called as a witness. NOT was either one of the other
judges called to sustain his handiwork with his oath. The clerks like-
wise abstained from asserting on the witness stand, where they would
have been subjected to a cross-examination, the legality of their acts.
Two representatives of the interests of contestee kept tally of his vote
at the polls ; and three men represented Arnold in a similar capacity.
These men were engaged in the same capacity for their candidates as
Mr. Lewis was for contestant. They necessarily came in contact with
Mr. Lewis during the day, but not one of them is called as a witness.
Their names appear on page 571 of the record. Their silence confirms
the testimony of Mr. Lewis, were confirmation necessary.

The other policeman, Mr. Young, noticed Lewis "on account of his
being around there and taking an active part in the canvass and elec-
tion," but says he left two or three times during the day the door where
they were voting. This virtually corroborates Lewis as to his position
at the door, and the only difference between them seems to be whether
Lewis left the door once only, as he says, or twice, as stated by Young.
He heard some colored men with folded ballots say among themselves
that they were going to vote for Langstou. Evidently he did not hear
colored men say anything about voting for anyone else, for he is silent
as to that. He says Lewis was standing on a huckster bench in front
of the door most of the time with his face towards the ballot-box and
that there was no obstruction between him and the box. He says
Dunn and Gibbous, two Democrats not officers of election, were inside
of the polling place.

With the friends of contestant studiously excluded from witnessing
the count, and with 284 votes proved to have been cast for him, while
the returns gave him only 174, this box stands impeached and must be
rejected.

In the caseof Washburn vs. ~ Voorhees (3 Congressional Election Cases,
62), it was held that " where in one precinct but 143 votes were returned,
while 173 were cast for contestant (a difference of only 30 votes), and
in another 20 less were returned than were proved, and the officers were
shown to be violent partisans of the party in whose favor the frauds
were, the whole vote of the precinct was rejected."

In the case of Bisbee vs. Finley (6 Congressional Election Cases, 177),
where 2f>9 votes were cast at one precinct for a candidate, and only 69
were returned for him, it was said in the report: "That any consider-
able number of votes proven for one candidate in excess of the number

452 LANGSTON VS. VENABLE.

returned for him, has always been regarded as evidence of fraud, and a
legitimate method of impeaching the returns. We think it is sufficient
to exclude the return from the count without further evidence."

Applying the law thus laid down and the law as quoted from Paine
on Elections, at the beginning of this report, the account will stand
thus:

Plurality for Venable, brought forward ,. 487

Deduct plurality for Venable, Third ward returned, which is equivalent to throw-
ing out the precinct 344

Leaves plurality for Venable 143

But Laugston has proved votes cast for him at this precinct 284

The contestee has failed to prove any vote cast for him, thus making a plurality
in favor of Langston of 141

SIXTH WAKD.

The returns in this ward give Venable 352, Arnold 160, and Langs-
ton 139 votes, a plurality in favor of Venable over Langston of 213.
In this ward the negroes have a large majority, and the evidence shows
that they were active and united supporters of contestant. The con-
testant placed upon the stand 283 witnesses, each of whom swears that
he is a qualified and duly registered voter of the Sixth ward, and that
he voted for contestant on November 6, 1888. Each one was cross-ex-
amined by counsel for contestee. This clearly shows that the poll must
be rejected and the parties left to other evidence than the falsified re-
turns to establish their vote. The judges appointed in May for this
ward were all political opponents of contestant, and all served.

Not a vote was challenged on either side- during the day of election.
Although the colored voters at this precinct stood to the white voters
in the ratio of nearly three to one, Mr. Akers and his associates thought
it fair to put up in front of the polls a barrier to separate the negroes
from the whites in two lines, one upon the right hand and the other
on the left hand, and then to receive the ballots from each side alter-
nately, a white man's ballot, and then a negro's ballot; and so on
throughout the day, unless some colored man who wished to vote the
white men's ticket could get permission to fall in in the line of whites.
The plain consequence of enforcing such a rule is evidenced by the fact
that out of 265 registered white voters, all voted except 14; and out of
709 registered colored voters, there were 308 (nearly half) who did not
vote. (Aker's deposition, Record, p. 831 et seq.) Consequently, when
the polls were closed at sunset there stood in line at the door of the
polling-place 124 Republican voters with Langston ballots ftpen in their
hands, anxious to vote, and denied their right of suffrage. (Record, pp.
196, 197.) Six others, whose names are on page 196, had become dis-
heartened and gone away.

-T-bofnas H. Brown, witness for the contestant, being duly sworn, said:

1st. Question, State your name, age, and residence. Answer. Thomas H. Brown ;
I am twenty-four years old, and live at No. 218 Halifax street, Petersburg, Va.

2d. Question. Were you a voter in 6th ward on election day, Nov. 6th, 1888 T An-
swer. I was.

3d. Question. If you are willing to waive your legal right, please state if you voted
for Congressman on that day; and if so, for whom? Answer. I voted for John M.
Langstou.

4th. Question. When did you reach the polls, and how long did you remain there
during the day ? Answer. I went to the polls between half past five and six o'clock
in the morning and remained all day, except for about fifteen minutes.

LANGSTON VS. VENABLE. 453

5th. Question. What were you doing during the day ? Answer. Assisting keeping
(he hooks.

6th. Question. In keeping what books? Answer. In keeping the names of the col-
ored voters who voted for Harrison, Morton, and Langston.

7th. Question. How could you tell that they voted for Langstou? Answer. Because
I saw their tickets when they were given to the judge of election, as each of them
voted an open ballot.

8th. Question. Where were you standing; how far from the ballot-box, and how
far from the judge who received the ballots? Answer. I was standing within two
feet of the door, and about four feet from the judge when at the ballot-box

9th. Question. Were the ballots open when handed to the judge ? Answer. Those
that I refer to when I say voted for Langston.

10th. Question. Do you mean that those who voted for Langston handed their bal-
lots open to the judge? Answer. I do.

llth. Question. Could you see the ballot until the judge put it in the ballot-b x ?
Answer. Yes, sir.

12th. Question. Were the names of the voters as they handed their open ballots to
the judge recorded in your book ? Answer. They vrere.

13th. Question. How many names were recorded in the book as voting for John M.
Langston? Answer. Three hundred and seventy.

14th. Question. How did the voters approach the polls ; that is, how were they ar-
ranged ? Answer. They formed a line.

15th. Question. Were there more than one line? Answer. There were two lines,
one on each side of a plank ; one for the white or Democratic voters, the other for the
colored voters.

16th. Question. Were the white and colored voters voted equally ; that is, did it
take any more time to vote one than it did the other ? Answer. I think not, because
when the colored voter came up to vote it. seemed to be a great difficulty in finding
his name, and seemingly the white voters were recognized on sight.

17th. Question. About how long did it take to vote a colored voter after he had
given his name? Answer. In some cases from about one to three minutes, and in
others longer.

18th. Question, About how long did it take to vote a white voter after he had
given his name? Answer. About one and a half minutes, except occasionally there
would be some difficulty and it would take possibly two minutes.

19th. Question. Were you in line? Answer. No, sir; I was not in line.

20th. Question. Were you at the polls when they closed ? Answer. I was at the
polls when the judge gave notice, and a few moments the polls would be closed.
Then I left my stand, which was upon a box within two foot of the door, and began
to get the men to retain their places until they received from me what steps they
were to take.

21st. Question. Were you there when the polls did close ? Answer. Close enough
to see the doors when they were shut.

22d. Question. Were there voters in both lines ? Answer. I think not, because
early in the day the line on white or Democratic side was exhausted, and the men as
a general thing afterwards were voted as they came to the polls on that side.

23d. Question. What men ? Answer. The white men; or the supposed Democrats.

24th. Question. Was there anybody in the Eepublican line when the polls closed?
Answer. There were.

25th. Question. Do you know how many? Answer. I could not say exactly, but
there were between one hundred and one hundred and fifty.

26th. Question. How far did the lino extend ? Answer. From Dr. Stillwell's office
down to or below T. P. Noble's barber shop.

27th. Question. How came the line to be from Dr, Stillwell's office down to Noble's
barber shop ? Answer. Because when the polls closed the men in line seemed to be
anxious to deposit their ballots, so we thought in order to know who they were that
wanted to vote, so we simply had them to turn the line and give their tickets, with
their name on them, to Messrs. Robinson, Smith, and Brewer.

28th. Question. Did you receive any tickets, write the names of the voter on his
ticket, or record the names of any of these men who had not voted? Answer. I did
not, but simply showed the leader of the line where to go.

29th. Question Did the others who were left in the line when the polls closed fol-
low the leader in regular order across to Dr. Stillwell's office and form the line to
which you have referred! Answer. When the polls closed all of those who had not
voted seemed to be anxious, and followed as regular as they could.

Cross examination :

19th. Question. Were you close by the polls on said day from the time they were
opened to the time they were closed, with the exception of the few minutes you
spoke of in your direct examination? Answer. I were.

454 LANGSTON VS VENABLE.

20th. Question. You said iu yonr direct examination that you took a list of men
who voted for Langst.on during that day at 6th ward. Do you mean that with the
exception of the few minutes above referred to you teok down the names of all the
men who voted for Laugston at said time and. place ; or, in other words, that you in
borne way kept an accurate account of the men who voted for Langston ? Answer.
I said that I assisted in keeping the book, and I say now that we kept an accurate
account of the Langstou vote and the whole colored vote at 6th ward in said elec-
tion.

21st. Question. Whom did you assist in keeping the book? Answer. Pleasant
Goodwyu.

22d. Question. What did you do towards keeping the book ? Answer. I had a list
of the colored voters in 6th ward, and as they voted Pleasant would write the name,
while 1 would check them, but this was doi^e alternately between him and I.

23d. Question. How many names did you have on your book referred to? Answer.
As a whole, we had four hundred and eight.

24th. Question. How many names did you have on your list of the colored voters
in 6th ward? Answer. I just said that we had four hundred and eight, as we were
only keeping in that book the colored voters.

25th. Question. How many colored men voted at said polls on said day? Answer.
Wo recorded the names of four hundred and eight.

26th. Question. You said in your answer to the 22d question above that you had a
list of the colored voters in 6th ward. How many names were on that list ? Answer.
There were six hundred and forty-seven.

27th. Question. How many colored men voted during that day who did not vote
for Langstou ? Answer. There were 408 colored votes cast, 38 of which we are not
certain who they voted for.

28th. Question. Do you wish to be understood as saying that you know that 370
votes were cast for Langston at said time and place? Answer. I do.

29th. Question. Did every one of the 370 men vote an open ballot? Answer. They
did, except one.

30th. Question. And did yon read the name of John M. Langston on each one of
these ballots? Answer. We did.

31st. Question. Is it not a fact that several colored men voted in what you have
termed the white or Democratic line ? Answer. They did.

34th. Question. How many white men do you suppose voted ? Answer. I do not
know.

35th. Question. Do you know of a single white man that voted for Langston?
Answer. I can't say that I do.

36th. Question. How many colored men Go you suppose voted for Venable? An-
swer. I can't say.

37th. Question. How many white men do you suppose voted for R. W. Arnold ?
Answer. I have no idea.

38th. Question. How many colored men do yon suppose voted for R. W. Arnold ?
Answer. I do not know.

39th. Question. Then, for all you know or believe to the contrary, the official re-
turn of the number of votes cast for Arnold must be correct? Answer. I don't say
that either.

40th. Question. Then, for all you know to the contrary, the official return of the
number of votes cast for R. W. Arnold must be correct ? Answer. I don't say that.

41st. Question. Then what do you say ? Answer. I say that we kept a record of
colored men who voted for John M. Laugston, and we did not keep either Venable's
or Arnold's vote.

42d. Question. You said in answer to the 25th and 27th questions on cross-exami-
nation that 408 colored men voted ;it said polls on said day, 38 of whom you were
not sure of as having voted for Langston ; then must you not know with reasonable
certainty how many colored men voted for Arnold? Answer. Not necessarily.

43d. Question. How many colored men voted for either Arnold or Venable?
Answer. 1 did not keep the record of either Arnold or Venable vote.

44th. Question. Did you not say that you kept a record of all the colored voters
who voted that day at (Jth ward? Answer. We did keep a record of the colored vote
at said ward on said day.

45th. Question. Have you not stated how many colored votes were polled for Lang-
ston ? Answer. I said that we kept a record of the Langston votes and all colored
voters that voted on said day at said place.

46th Question. Was or was not this an accurate record? Answer. We kept it
accurat^, according to our judgment. I mean to say that we taken the names of all
colored luen who voted at said poll on said day.

54th. Question. How many of them voted for John M. Langston? Answer. Out of
the 408 mentioned by me 370 were Langstou ballots.

LANGSTON VS. VENABLE. 455

55th. Question. Were 408 all the colored meu who you said voted at said polls on
said day ? Answer. 408 is all I said.

56th. Question. In yonr answer to 53d question on cross-examination, you stated
that you took the names of all the colored men who voted at said polls on said day.
Please state unequivocally how many of those men voted for Langstou ? Answer. I
think I have told you in my former answer how many men that we taken as Lang-
stou votes ; there may have been more.

57th. Question. I repeat the 56th question. A. I can't tell you any nearer than I
have in my foiiner answers.

58th. Question. Were three hundred and seventy all the colored men who voted
for Langston. If more voted for him state, as near as you can, how many more, and
if less voted for him, state as near as you can, how many less. Answer. I can't say
that more did vote for him, because I only kept the names of those who voted an
open ballot ; there may have been others who voted for him.

59th. Question. During your examination you have testified more than once
that those men who voted for Laugston voted open ballots ; then do you wish to
retract that statement now? Answer. I do not, but simply add to it by saying
that we took the names of those who voted an open ballot with John M. Langston's
name on it, and we can vouch for them j of course, we could not say anything about
those who voted the closed ballot.

60th. Question. You have stated that you took the names of all the colored men
who voted in 6th ward on said day; state how many of them you know did not vote
for Langston. Answer. One.

61st. Question. State how many of them you know did vote for Langston.
Answer. I think I have said before that 370 men were recorded by us as having voted
for Langston.

6'2d. Question. You were not requested to say how many men were recorded by
you as having voted for Langston. You were asked to state how many men you know
voted for Langston. Please answer the question asked you and say no more.

Answer. I can tell you nothing more than what I have told you, as I think that
in saying that we recorded 370 shows at once my knowledge of the Langston vote in
said ward.

63d. Question. Then do yon know of your own personal knowledge that Langston
got 370 votes in said ward ? Be kind enough to answer categorically. Answer. He
did.

64th. Question. And you do not know who received the balance of the colored
votes cast in said ward (37 in number) ? Answer. I do not.

65th. Question. How many white persons, as near as you can judge, voted at said
ward on said day ? Answer. I can't say.

66th. Question. You are asked for an approximate answer only ? Answer. I have
no idea.

67th. Question. Did as many as 500 white persons vote at said ward on said day f
Answer. I don't know.

68th. Question. Do you mean to say that you profess to be a man of any intelli-
gence and staying at the polls all day, as you said you did, and recording all the col-
ored votes cast there that day, as you said you did, you do not know that as many
as 500 white persons did not vote at said polls on said day ? Answer. It matters not
whether I profess to have any intelligence, I did not take notice of the white vote,
therefore I answered "I don't know."

69th. Question. Did as many as 500 white persons vote in said ward on said day ?
Answer. I don't know.

70th. Question. Do the white voters in said ward outnumber the colored voters T
Answer. They do not.

71st. Question. Did as many as 648 white persons vote in said ward on said day ?
Answer. I think not.

72d. Question. Did as many as 600 ? Answer. I think not.

73d. Question. Did as many as 550 ? Answer. I don't know.

74th. Question. Did more than 5 white persons vote at said ward on said day?
Answer. They must have.

75th. Question. Do you mean to say the most accurate estimate you can form as to
the number of white persons who voted at said ward on said day is between 5 and
600? Answer. I do not mean anything of the kind.

76th. Question. Then please explain what you do mean. Answer. As I kept no
record of the white vote in said ward I do not propose either by estimate or otherwise
to say anything about it.

77th. Question. Counsel for contestee informs you that he has a legal right to ask
you such questions as the above in order to test your credibility and the accuracy of
your memory, and that if you refuse to answer them you take the law into your own
hands. Do you still persist in refusing to. give eveu an approximate estimate as to

456 LANGSTON VS. VENABLE.

the number of white men who voted in said ward on said day ? Answer. I do not
object to answering any question concerning things of which I have any knowledge,
but do not think that I can do justice to myself or anybody else to try even to ap-
proximate anything that I paid no attention to.

We have given these extensive extracts from the testimony of this
intelligent witness for the striking contrast it affords between a gentle-
manly and courteous witness and a desperate, browbeating attorney.
Much more cross-examination follows of the same character, giving
grounds for suspicion that for lack of a meritorious defense contestee
tried to prevent by delay as far as possible the calling of witnesses.

This testimony is corroborated by that of Pleasant Goodwyn, who
said:

1st. Question. What is your name, age, and residence? Answer. Pleasant Goodwyn ;
my age is 32 years, and residence 325 Federal street.

2d. Question. Were you a voter in the 6th ward, city of Petersburgh, on election-
day, Nov. 6th, 1883 ? Answer. Yes, sir.

3d. Question. If you are willing to waive your legal right, please state if you voted
for Congressman on that day, and if so, for whom you voted. Answer. I did, and
voted for John M. Laugston.

4th. Question. When did you reach the polls, and how long did you remain there
during the day ? Answer. I got there about quarter to six in the morning and re-
mained until the closing of the polls at night.

5th. Question. State how the polls were opened, that is, what was said and done
by the judges. Answer. I think the polls were opened about quarter to seven, and
at that time the judge said Oh yes, Oh yes, the polls are opened, and then a strip of
board was nailed across the door, and a plank extended down to divide the line. Be-
fore voting they arrested Richard Tucker from the door.

6th. Question. State fully all you saw and heard relative to the arrest of Tucker?
Answer. I saw Tucker standing at the door when the judge said you all get back ;
he being in front he backed backwards a short distance, and the judge said yon all
must get out from there, and he seemed that he could get no further back, as the crowd
was behind him. Supervisor Scott called Mr. Stutz to take this man away, and ho
did not return no more. Then after that Mr. Berry came to the polls and said, I am
supervisor of this precinct; Mr. Akers said, I don't know so much about that; Mr. Berry
said, do you object to my performing my duty as supervisor? Mr. Akers says, I am
informed that Mr. Minetree is the supervisor of this precinct. Mr. Berry said then,
do you object to me, for I have got my papers to show that I am the supervisor of
this precinct ? Mr. Akera says, I don't object to you, but you can see Supervisor
Scott. Mr. Berry went away, and when he came back him and Mr. Scott was together,
and went into the precinct.

7th. Question. Did you see any disorderly conduct on the part of Tucker, or did he
refuse to obey the judge when told to get back ? Answer. I did not.

8th. Question. Did Tucker vote at any time during the day ? Answer. No, sir.

9th. Question. When the polls opened were the ballot-boxes in sight ? Answer.
Yes, sir.

10th. Question. Were the ballot-boxes opened and held up or so placed that it could
be seen that they were empty f Answer. The ballot-box was not held up and opened.

llth. Question. What were yon doing at the polls all day ? Answer. I was taking
the names of the colored voters who voted for John M. Langston.

12th. Question. Did you take the names of all the colored voters who voted at 6th
ward on election day, Nov. 6, 1888 ? Answer. I did.

13th. Question. How could you tell when a colored voter voted for John M. Laug-
ston ? Answer. Because I read the name of John M. Langston on the ticket and saw
them handed to the judge and saw him put it into the box.

14th. Question. Where were you standing and how could yon see each ticket?
Answer. I was standing in a chair very near the door of the precinct where I could
see every man's ticket that would have it open.

15th. Question. How near were you to the ballot-box and how near to the judge
who received the ballots ? Answer. I was as close to the judge as the wall of the
door would permit me; between him and the box.

16th. Question. Could yon see each ballot from the time it was handed to the judge
nntil he put it into the ballot-box ? Answer. I could see every ballot that was handed
to the judge that day.

17th. Question. How was it or why was it that yon conld see the name of John M.
Laugston on the ballots? Answer. Because the ballots were open, that I conld read
them and see the name of John M. Langstou.

18th. Question. Were these ballots opened and so held for the purpose of allowing

LANGSTON VS. VENABLE. 457

you to see them ? Aiiswer. They were opened for the purpose that I might see them
and record their names as to whom they voted for.

19th. Question. Are you sure that the opened ballots which you saw were handed
to the judge and it went into the ballot-box ? Answer. Yes, sir ; I am sure that every
ballot that I saw handed to the judge went in the ballot-box.

20th. Question. Did you record the name of every voter who voted an open ballot
for John M. Langston ? Answer. I did record every colored voter who voted for John
M. Langston at 6th ward precinct.

21st. Question. Do you mean to say that you recorded the name of every colored
voter who voted for John M. Laugston or the name of every colored voter who voted
an open ballot for John M. Langston ? Answer. I mean to say that I recorded every
name who voted an open ballot for John M. Langston, and also recorded every colored
vote cast on tbat day.

22d. Question. In what did you record the names above referred to? Answer. I
recorded them in books used for the tellers on that day.

23d. Question. How many books did you use ? Answer. Four.

24th. Question. Have you those books in your possession ? Answer. I have.

26th. Question. Please state if these books have been in your exclusive possession
siuce Nov. 6th, 1888, and also whether all of the names were recorded by you your-
self, and whether there have been any additions to or any subtractions from the names
in said books. Answer. These books have not been in my exclusive possession since
Nov. 6, but I do certify that I wrote four hundred and eight names in those books, and
there have been none added to or subtracted from them. The books are here filed.

27th. Question. Please take said books aud state if every name is in your own
writing. Answer. (Here witness took the books and answered as follows:) Yes, sir;
I certify that all these names are my handwriting.

28th. Question. Have you seen these books before to-day ? Answer. Yea ; I have.

29th. Question. Have you examined them to-day? If so. state when. Answer.
Yes ; I have examined them to-day while here.

30th. Question. Did you examine them before you took the stand ? Answer. I did.

31st. Question. PJease give the names of those voters whom yon recorded as voting
an open ballot for John M. Laugstou, refreshing your memory, if necessary, from the
record you kept.

Answer. All the names recorded in Exhibits A, B, C, and D, and filed as part of my
deposition, voted an open ballot for John M. Langston as member of Congress from
this 4th Congressional district of Virginia, with the following exceptions, namely :
Sip O. Watson, Sam'l Jones, Ned Patterson, Wm. E. Prichard, Abram Jones, Thos.
Parhani, W. T. Hicks, George Ellis, Geo. F. Hill, Wyatt Alfriend, John M. Alfriend,
R. H. Smith, Emmett E. Jones, Sani'l Jackson, David Perry, Wm. N. Gunns, Pleas-
ant Jackson, Alfred Robinson, Fed Cooper, C. H. Mabry, K. Coleman, Jas. H. Taylor,
Wm. H. Jordan, Jos. Ellis, Wm. Wood, Wm. H. Moore, Robt. Jones, Edward Grigs
bys, Beverly Younger, Thomas Butler.

32d. Question. I see from the exhibits filed that some of the names have " D" and
"A" marked after them ; what does this mean ? Answer. The names that have " D "
marked after them is that they were folded and marked " D " for doubtful, and also
the letter "A" are for those who voted an open ticket for Arnold.

33d. Question. Were there any delays or stoppages in. voting after the polls opened?
Answer. Yes, sir ; there were four to my knowledge that day.

34th. Question. Please state for what they were and about how long they contin-
ued. Answer. The first stoppage after the polls opened were for breakfast, and the
time they stopped may be a half or three-quarters of an hour. They also stopped to
have the crowd moved back because the colored line was doubled. The time they
stopped for that I don't suppose was more than ten or fifteen minutes. They also
stopped again in looking for the name of " James W. Smith." The judge says he had
voted, and he referred them to his number and street, when they found he was cor-
rect and voted him. The next stoppage was for dinner, and I suppose it took about
a half or three-quarters of an hour.

35th. Question. When the judges stopped for breakfast and dinner was the voting
entirely suspended? Answer. Yes.

36th. Question. You have stated that there were lines. How many and for whom
were they ? Answer. There were two lines, one said to be for the white and the other
for the colored; but they voted some colored on the white line.

37th. Question. Did you hear any objection raised to the voting of colored voters
on that side said to be for white voters? I mean objection by the judges. Answer.
I did hear one objection, and that was to Robert H. Harris by Judge Akers. He
claimed that Harris had a Republican ticket; Harris ottered to bet him that it was
not; then Harris says, "All you have to do is to deposit my ticket as I give it to yfiu;''
then Akers says, "You have no right on this side of the line," and deposited the
ticket; Harris says, "I now bet you ten dollars that it is a Republican ticket with
John M. Langston at the bottom;" Akers said, "That is all right, go on."

458 LANQSTON VS. VENABLE.

38th. Question. Did you see any other colored man vote from the same aide as did
Harris? Answer. I did see other colored ineii vote on that side.

39th. Question. State who they were, and whether any objection was raised by the
judges? Answer. I will state those I can remember who voted on that side as
follows: 1st. Nathaniel Robinson, Wm. E. Prichard, Robert H. Harris, Wm. Wood,
Abrani Jones, Sam'l Jones, Einmett Shelly, Henry Jones, Geo. Ellis, C. H. Mabry,
Thos. Butler. That is all I recollect that voted on that side.

40th. Question. Could you remember any others if you referred to the record you
kept! If so, please do that to refresh your memory, and give their JUmes. Answer.
I have seen two names I recognize as voting on the white side, namely, David Perry
and Thomas Parham.

41st. Question. Do you know why these men, with the exception of Rob't H.
Harris, were allowed to vote on the side said to be for white voters? Answer. No, sir.

42d. Question. Did you see any colored voter vote an open ballot for John M. Lang-
ston from that side said to be for white voters! Answer. I did see three who voted
on that side of the whites who showed me their ticket, when near the judge, and
then folded it and handed it to the judge whilst my eyes was upon them.

43d. Question. Who were they? Answer. Nathaniel Robinson, Robt. H. Harris,
and Emmett Shelly.

44th. Question. Did you see any colored voter vote an open ballot from that side
said to be for the w r hite who handed his open ballot for John R. Langston to the
judge open so that the judge knew it was a Langston ballot? Answer. I saw Robert
Harris, whom they thought to vote with them, hand the judge his ballot, folded once,
and the judge claimed it was a Republican ticket.

45th. Question. Did you see the judge vote any colored voter from the side said to
be for the white when he knew that the ballot was a Langston ballot? Answer. I
saw the judge vote a man from that side which he claimed to know that that was a
Republican ticket which the man had just handed him.

46th. Question. Did you see any open ballots handed to the judge by the voters in
the colored line ? Answer. Yes ; I did see a great many ballots handed to the judge
wide open, and the judge says, "You must fold your own ballots," and this was done
frequently during the day.

47th. Question. Did you see any ballots handed to the judge wide open by any col-
ored voter who voted from the line said to be for the white voters? Answer. I did
see three ballots from the white line which were open for the purpose that I may see
whom they did vote for, and those ballots were folded again and were not removed
from their tingers until handed to the judge.

48th. Question. You have failed to answer the question, which is this: Did you see
any ballots landed to the judge wide open by any colored voter who voted from the
line said to be for the white voters? Answer. I did not.

49th. Question. Were there, at any time during the day, two lines of voters, one
white and one colored? Answer. It was.

50th. Question. How were the men voted from these lines ; that is, how were they
voted, taking into consideration the time required to vote ? Answer. These men were
voted one white and one colored until the white line would become exhausted ; then
they would vote colored from either side, providing if they seemed to be in sympathy
with their party, but if not they would claim that this is not the side for colored voters ;
it seems that when a colored voter would come it was very hard to find his name on
the registration books, but as soon as a white voter would appear and hand his ticket
and call his name the judge would very readily reply, "It is all right." So it made the
voting proceed very slowly until Mr. Venable came, I think, about noonday, and says,
"You all must try to vote these men." Then a long string of men were extending
from the poll-door near to Market street.

51st. Question. Was the voting proceeded with any faster after the remark to which
you refer was marie by Mr. Veuable? Answer. It was.

52d. Question. Did it not so continue until the polls closed? Answer. Yes.

53d. Question. Did you see any colored voter refused his vote because he was on
the side said to be lor white voters and sent around to the colored line ? Answer. I
saw two.

54th. Question. Please give their names. Answer. Richard Wilson and Peter T.
Smith.

55th. Question. Can you state of your own knowledge that it took longer for a col-
ored voter to vote than it did for a white voter ? Answer. I can state that I did not
hear the judge stop to ask a white voter for his number and street during that day,
but it were frequently done when he come to look for the name of a colored voter.

56|h. Question. Did you see any white voter delayed or kept waiting to vote after
he had given his name to the judge at any time during the day ? Answer. I did not.

57th. Question. Can you say about how long it took for a white voter to vote ?
Answer. I can not specify the exact time, because I had no time to designate him,

LANGSTON VS. VENABLE. 459

bnt to my best judgment I don't think it took more than 3 to 5 minutes to vote any
white voter who came to the poll that day.

58th. Question. How long do you suppose it took to vote a colored voter? An-
swer. I know that as soon as some of the colored voters would give their ballot to the
judge and call their name the judges would immediately say, " It is all right," and
others would give their ballot and call their name, and the judge would look on tho
books and then ask his name over again, and after asking would look again, and
some cases the judge were referred to the number on the registration book, which I
suppose would take a space of time from 5 to 10 minutes.

59th. Question. Do you swear that the white voters were voted much more rapidly
than the colored ? Answer. I do swear that the white voters, according to my knowl-
edge, was voted faster than the colored.

60th. Question. How long have yon lived in Oth ward ? Answer. About ten years.

61st. Question. How long or in how many elections have you served around the
polls? Answer. I have served around the polls at three elections, and stayed all day
each time.

62d. Question. How did the turnout of the voters in the last election compare with
theprevious elections you have seen ? Answer. The voters at the last election turned
out fuller than I over saw them.

63d. Question. About how many white Republican voters live in 6th ward ?
Answer. I believe there are between two and three hundred.

64th. Question. About how many Democratic voters ? Answer. I believe about
two hundred or more.

65th. Question. About how many colored voters ? Answer. I believe there are be-
tween 700 to 800.

66th. Question. Who were the judges at 6th ward on last election day? Answer.
Mr. Akers, Eckles, and Lewis.

67th. Question. How many Democrats and how many Republicans? Answer. Two
Democrats. Mr. Eckles claims to be a Republican.

68th. Question. Was either onoof the three judges friendly to John M. Langstou's
candidacy ? Answer. Not that I know of.

69th. Question. Who were the clerks? Answer. Mr. Shelly and Kidd.

7Cth. Question. To what party do they belong ? Answer. Democratic party.

71st. Question. Who were the supervisors? Answer. Mr. Berry and Scott.

72d. Question. To what party do they belong? Answer. Mr. Scott belongs to (he
Democratic party and Mr. Berry claims to be a Republican.

73d. Question. Was Mr. Berry friendly to the candidacy of John M. Langstou?
Answer. I think he was not.

74th. Question. Was Mr. Berry at the polls when they opened ? If not, state when
he reached the polls. Answer. He was not there when the polls opened, but came in
the time when the judges were signing their names.

75th. Question. Jn what ward does Mr. Berry live, and do you know when he was
appointed supervisor? Answer. I do not know what ward ho lives in, neither do I
know the time he was appointed supervisor.

76th. Question. Were the tickets which yon saw printed " John M. Langston " or
" John Mercer Langston ?" Answer. The tickets that I saw and recorded had "John
M. Langston" on them.

77th. Question. When the p*lls closed how many lines were in front of the door ?
Answer. There was two lines.

78th. Question. What two lines? Answer. The Democrats on one side and the Re-
publicans on the other.

79th. Question. Was there anybody in the Democratic line when the polls closed?

Answer. Yes, sir.

80th. Question. Who were they? Answer. I could not name them personally.

Hist. Question. Were they white or colored ? Answer. Both white and colored.

82d. Question. How came colored voters in the line said to bo for whites ? Answer.
Because it was near the closing of the polls and the people got as near as possible to
see how they were voting. The reason why, because just before the closing of the
polls'a man said they were voting ten to one, and that caused the rush.

83d. Question. Do you mean to say there .were voters in the Democratic line trying
to vote when the polls closed? Answer. I do not.

84th. Question. Were there voters in the Republican line trying to vote when the
polls closed ? Answer. There were.

85th. Question. Have you any idea as to the number of men in the line who had not
voted when the polls closed? Answer. I suppose there may have been 120 or more.

86th. Question. Do you swear that these men in line had not voted during the
day ? Answer. Yes ; I do.

87th. Question. Did you see any voters leave the polls before voting because they
were unable to vote? Answer. I did.

88th. Question. How many and who were they ? Answer. I know one did go and

460 LANGSTON VS. VENABLE.

not return ; another one started away, I called him back and asked the man who was
next to the polling place to give way for him, James H. Anderson, to vote, and he did
vote. The one that went away was named Henry Moody.

89th. Question. When the polls closed what became of the line of colored voters
who had failed to vote? Answer. They were instructed to keep in line and go over
to Dr. Stillwell's office and remain until their names were taken and also their tickets.

A cross-examination commencing on February 14 and continuing until
February 22, and consuming all the time allowed by law to contestant
to take evidence in this ward, and containing 323 questions, confirms
the above, and shows that 377 voters were seen by witness to deposit
ballots for contestant. Their names were filed with the notary and are
found on pages 280 and 281 of the record. This evidence is further cor-
roborated by that of Richard Townes, page 282, and J. York Harris,
member of the common council and chairman of the ward, page 291.

The only officer of election called to sustain the returns is Mr. Akers,
one of the judges. He excuses the delay charged upon the officers by
claiming difficulty in finding names of colored men. He says the man
least familiar with the work was given charge of colored registration
book ; why this particular man he does not say. He is unable to find.
on the book more than two colored men in the ward of the same name,
but swears that because of the similarity of their names it is more dif-
ficult to find colored than white voters.

It is attempted by the testimony of the witness Akers to contradict
and break down the facts established by seven witnesses called by con-
testant who were present at the polls and whom he disputes in detail,
and at least 213 individual voters in excess of those returned for Laug-
ston, each of whom swears he voted for Langston.

Coming to this poll with 141 plurality, contestant's count must be
increased by the plurality returned against him, which is equivalent to
throwing out the poll. This adds to his total :

Vote brought forward 141

Plurality in sixth ward returned for Veuable 213

Add to this vote proved for Langston 377

Makes a total plurality for Langston of 731

Besides the votes cast, 124 colored men were by the delay of the offi-
cers prevented from casting their ballots.

F. N. Robinson, witness for the contestant, being duly sworn, said on that subject :

1st. Question. State your age, residence, and occupation. Answer. I am twenty-
three years old ; I reside at 33 Perry street, Petersburg, Virginia ; I am a teacher by
occupation.

2d. Question. Where were you on the 6th day of last November, election day T
Answer. Was in Petersburg, at the b'th ward most of my time.

3d. Question. State whether or not you were at 6th ward polls most of your time
that day. Answer. I was.

4th. Question. State, if yon please, what occurred, if anything, at the close of the
polls that day in said ward in which you took special interest and part. Answer.
When the judge of election declared the polls closed there were a line of men waiting
to vote, and as they were unable their names were taken in an office in front of the
polls; I mean one of the judges of election.

5th. Question. State, if you please, who took the names of the persons to whom
you refer as not being able to vote.

Answer. I did, sir.

6th. Question. Were you or not assisted in that labor: if so, by whom?

Answer. I was, by Mr. Andrew J. Smith and David Brewer, one more, Brown, I
don't know his first name, and Blenu, I don't know his first name.

7th. Question. State fully what was done. Answer. When the polls closed upon a
line of men, Andrew J. Smith, David Brewer, and myself, being loyal Republicans,
felt it our duty to note all men that was unable to vote ; we comineuced by receiving
the names of those who had held the ballots, counted and sealed up the same, writ-
ing the names of the persons who held the ballots on the back of the ballot, and tho
package and book in which I took the names were preserved.

LANGSTON VS. VENABLE. 461

The books containing the names of these parties were filed with the
notary with the residence of each, and are in the possession of the com-
mittee, thus furnishing coutestee every facility for investigating the
truthfulness of contestant's witnesses.

On cross-examination the same delay was indulged in and effort to
consume time in this as in the third ward.

It appears by the record (p. 191) that the contestant gave notice that
on the 31st day of January, 1889, he would commence to take the
depositions of one hundred and forty-nine witnesses in addition to the
283 above referred to as having been called and having sworn that they
voted for him, whose names were given, mostly negroes, who were
expected to testify that they were qualified voters, and that they cast
their ballots for John M. Langston. The first of these witnesses,
called and sworn January 31, at 12 o'clock m., was F. N. Eobinsou
(p. 192). His direct examination was completed by eight questions.
The cross-examination began the same day, January 31 (p. 197), and
was prolonged until late in the day of the 5th of February six days
(p. 223) by the asking of 316 questions, nine-tenths of which were use-
less, irrelevant, and frivolous, and intended without disguise or motive
only to consume time.

And then occurred an outrage without a parallel in the history of elec-
tion cases. Just as the witness answered the three hundred and six-
teenth cross question (p. 223) he was arrested and taken into custody
by a deputy United States marshal by virtue of a warrant or capias,
falsely, maliciously, and without probable cause sued out against him
by two persons, attorneys-at-law, who had as counsel for the contestee
appeared and participated in said cross examination, upon their com-
plaint on oath that the witness refused to testify in this case.

An examination of the record shows the absolute falsity of this charge.
The witness maintained under the most provoking and insulting cross-
examination remarkable self-possession and dignified courtesy, and the
only explanation of this outrageous conduct on the part of contestee's
counsel must be that they hoped by their perjury to intimidate other
witnesses from taking the stand to expose the frauds by which their
client obtained the certificate of election.

Having themselves stopped the cross-examination by the arrest of
the witness they impudently objected to the consideration of his testi-
mony for the reason that they had not had the opportunity to cross-
examine him, and for the further reason that his deposition was not
signed.

David L. Brewer, another witness, says, on this subject, page 225 :

1st. Question. What is your name, age, and residence ? Answr. Da vidL. Brewer;
twenty-two years old ; 62 Lombard street, Petersburg, Virginia.

2d. Question. Were you on the 6th day of November last, election day, in the city
of Petersburg ; and, if so, state whether or not you were at the 6th ward polls at any
time dui <sig that day, and if anything special occurred at said polls state what fully,
and whether you took, with others whose names you may give, any special part
therein so far as the same had to do with the election then and there occurring ?
Answer. I was in the city and at 6th ward polls about three hours before the closing
of the polls and noticing the manner in which the men were voted, aud I concluded to
stay until the closing of the polls. There were one hundred and twenty-four men in
line at the closing of the polls which could have voted if they only had a chance.
Seeing how they were defrauded out of their votes, I walked down the line and
noticed and also read every man's ballot as he had it opened, holding it up. I noticed
one hundred and twenty-one ballots that one hundred and twenty-one men held was
for John M. Langstou for a member of Congress, and three ballots which three men
hud was for R. W. Arnold for member of Congress. Seeing how these men were
defrauded I, in company with F. N. Robinson and A. J. Smith, invited these men
across the street so as we could take their names and ballots; and if they could sign

462 LANGSTON VS. VENABLE.

their ballots they did so, and those that could not write A. J. Smith and myself
signed their ballots with their mark attached and then witnesseth it. I also noticed
that they had two lines, one for the Democrats and one for the Republicans, and I
also noticed that they would vote three Democrats to one Republican. After the
line had swung across the street we proceeded to take the names and ballots. After
taking the names and ballots th e ballots were strung by me, counted by F. N. Rob-
inson, A. J. Smith, and myself ; then we proceeded and made a parcel of them and
sealed them with F. N. Robinson, D. L. Brewer, and L. M. Glenn in the room, in the
presence of William Wesley Brown and Drewry Batts.

M. Question. How were the names taken and how kept by you, in list or book, or
ho\v f Answer. The names were taken and kept by F. N. Robinson in a bo -k, whilst
Smith and I signed and witnesseth the ballots of men who conld not write. Robin-
son took the name of each man as we called it out.

4th. Question. State whether or not yon saw, examined, and know the book kept,
as stated by you ? Answer. I saw and know the book.

">th. Question. Please state whether or not the book which is now handed to you
and the package to which you have referred and described are the identical ones ar-
ranged and kept as described by you as having been arranged and kept on the 6th
day of last November. [The package and book were handed to the witness.] An-
swer. They are.

(The contestant now asks that the book and package be now filed and made a part
ot'Uic testimony of the witness.)

6/h. Question. State, if you please, whether or not there were differences made in
the mode or manner of approach, partition or otherwise, between voters seeking to
cast their ballots at the (5th ward in the city of Petersburgh on the 6th day of Novem-
ber, 1838? Answer. There was a partition which divided the Republicans from the
Democrats.

A. J. Smith testified, page 228, et seq.:

My name is A. J. Smith ; I am twenty-jeven years old ; I live at 526 Pegram street.
I was in Petersburg the 6th of November last. I was at the 6th Ward polls about
two hours during the morning, and again from soon after 3 o'clock p. in. till after the
polls had closed. During the progress of the election I noticed some things that I
regarded as peculiar, one of which was that while all the colored voters were re-
quired to approach the polling place on one side of a plank and the white voters on
another, certain colored voters were conducted to the window where the voting was
going on, on the same side with the white voters, and allowed to vote. At each time
during the day that I was there, there was on the side of the plank appointed for
colored voters a long row of voters who complained of the delay of the election. I
tried to vote in the morning, but had to leave before I succeeded. When I returned
in the afternoon, about 3.15 p. m., so great was the crowd of voters on the colored
side that I despaired of being able to vote. Finally, I voted by chance ; the long line
of voters had moved away from the plank and the short line had formed between
them and the plank. I thought it a chance to get in my vote, and moved from the
long line and took a place in the short line. The judges ordered the police to arrange
the line; they decided to allow the persons in the short line to vote, and so I voted.
If it had not been for this I would have been among the large number of persons who
were in line waiting to deposit their votes when the polls closed. After I had voted
I moved around about the polls, and seeing such a large number of persons who were
prevented by the delay of the officers of the election from getting in their ballots,
and seeing that most of these people were going to vote for the candidate for whose
election I was most anxious, and knowing that most of them had been a long time in
the attempt to vote, I thought that there might be a remedy for what I considered a
willful suspension of their votes. I consulted with other persons who felt as I did,
and we decided to take a list of persons remaining in line and their ballots. When
the polls closed the persons in line were asked to remain in line and to file past Dr.
Stillwell's office, where arrangements had been made to receive their names and
ballots. Mr. F. X. Robinson and Mr. David L. Brewer were in theoffice, sitting at a
table by the window. Finding that they were not taking their names and ballots as
fast as the people desired, I offered to assist them and did assist them. I stood by the
window and took the ballots, writing the names and residences of the persons, giving
them on the back of the ballots. When I commenced this I asked Freeman .Jones, a
voter of 6th ward, to stand at my side and see that the ballots so indorsed by me
were the same ballots given me. When I had finished, and that was when no more
ballots were offered, I handed them to Robinson through the window, and the names
on the backs were copied on the list and the ballots strung with other ballots that
they had taken. I had occasion to leave the window for a few moments, and when I
returned they were preparing to seal them up in a package. I agreed that this was
the proper thing to do, but I did not assist in doing this. I left and weut down town.
All this occurred wit-hin a short time after the closing of the polls, and was finished
a long time before the judges made the return of the election.

LANGSTON VS. VENABLE. 463

Cross-examination :

lltli. Question. In answer to a previous question you stated that a plank separated
the white and colored voters at 6th ward election day, Nov. 6th, 1888. Was not that
plank supposed to separate the Democrats and Republicans? Answer. It was not
supposed to separate the Democrats and Republicans. I mentioned it in order to
point out a novel feature of the election. This plank has been used to separate the
colored voters from the white. I can not remember ever seeing a white voter vote
from the side of the plank appointed for the colored voters; but on this occasion
some few colored voters were taken to the window on the side of the plank appointed
for the white voters, and did vote from there. The selection of these few from among
the large number of colored voters who were in line attempting to vote seemed
peculiar.

12th. Question. Is it not a fact that persons who voted on one side of the plank
were regarded as, and thought by the party managers on both sides to vote the Re-
publican ticket, and those who vote on the other side of the plank as voting the Demo-
cratic ticket? Answer. I can't see how it could be so regarded. There are white
voters in 6th ward who are classed as Republicans. They all voted on the same side
as other white voters. This prevents any one familiar with 6th ward election from
making the distinction you suggest.

lf>th. Question. How many do yon suppose loft the polls without voting ? Answer.
I can not say with certainty. I know of several who have reported that they did
not vote, because they left the polls after having spent an unusually long time in
Irving to vote.

(The latter statement made by the witness was objected to by counsel for contestee
on 'the ground that it is hearsay.)

16th. Question. Do you of your own personal knowledge know of any who left be-
fore the polls closed without voting ? Answer. I know of several who have said that
they did. Unless I had watched a person closely and continuously I would be un-
able to testify of my own personal knowledge whether he had voted.

17th. Question. Please give the names of those who told you that they left before
voting. Answer. I do remember the names of two persons, others I did not know or
have forgotten. The persons referred to as remembered by me are W. S. Fields and
Wm. H. Reaves.

18th. Question. Please say how many you think must have left without voting.
Answer. The cases of which I learned will amount probably to twelve.

19th. Question. Is it your judgment that those twelve were all who left before the
polls closed without voting ? Answer. I can not express an opinion as to whether
they were all ; I have not tried to ascertain ; I have learned of these in general con-
versation about the election.

20th. Question. Did you make any attempt yourself to get into the line formed by
the white voters ? Answer. I did not.

21st. Question. Did you see any one excluded who did make the attempt? Answer.
I did not see any one excluded. It was the understanding with the police that only
such colored persons as were conducted by this way to the window should be allowed
to approach.

22cl. Question. Please explain what you mean by the words "only such colored
persons as were conducted that way should be allowed to approach." Answer. I
mean that all other colored persons were restricted to the side of the plank generally
need for colored persons.

23rl. Question. Did you not say that some colored persons voted on the side of the
plank generally used for white persons ? Answer. I did.

24th. Question. Then might not the fact that one side of the plank was generally
used for colored persons have been in consequence of the preference of the colored
persons themselves of that side of the plank? Answer. I think not. I suppose that
they would not prefer to remain away from the window where the votes were re-
ceived rather than approach nearer on the other side.

25th. Question. You have testified substantially that you did not yourself attempt
to approach the window from the other side of the plank ; that you did not see any
one who attempted to do so denied a place in the line on the other side, and in fact
that several colored men actually entered the lino and voted. Then, where was the
"sinister design" that you have testified to as being manifest ? Answer. I did not
attempt to approach the ballot-box on the side mentioned, but I spoke to the police
authorities about this condition of things. I was led to believe that it would be 'use-
less to attempt it. The general impression was that the few colored persons voting
Irom the white line had been induced to vote a ticket more acceptable to the mana-
gers of the election than the tickets which the majority of the voters on the other
side of the plank were about to offer, and which most of them displayed open in their
hands. I think this favor extended to the colored voters who voted on the other
side was not so much a favor to them as an attempt to get in all of a Certain kind
wf ballots.

464

LANGSTON VS. VENABLE.

26th. Question. Theii, from your last answer, it is evident that if any " sinister de-
sign" was really manifest the exhibition of it istobe attributed to the city police. You
surely don't mean to say that any of the police authorities of the city of Petersburg
stationed themselves at the end of the line filled by white men and allowed only those
colered men to enter it who had, as you say, been induced to vote the ticket which
was more acceptable to the managers of the election than the ticket which the ma-
jority of the voters on the other side of the plank were about to offer ? Answer. The
police appeared to be acting under the direction of the judges of election in all their
acts relative to the arranging of the lines of voters. For example ; When I had secured
a place in the short line to which I have referred previously I noticed the judges of
election ordered the police to arrange one line on that side of the plank. They stated
that they were unable to decide which was the proper line, and suggested that those
in the short line be allowed to vote. I noticed this particularly, as I was in the short
line and interested in the decision of the judges. The judges decided as the police
suggested. As regards the 2d part of the question, I mean to say that no colored man
was allowed by the police to come very near the line referred to unless escorted by
certain persons.

It appears from the above that by the intended delay 124 voters were
prevented from casting their ballots, and that in all human probability
121 of them would have voted for contestant, and 3 for Mr. Arnold. The
committee has not counted these votes for contestant, distinguishing
between this case and the case of Waddill vs. Wise, decided at this ses-
sion of Congress, where a somewhat similar state of affairs was presented
in certain wards of the city of Richmond. But in Waddill vs. Wise
each voter counted for contestant by the committee had been called as
a witness by contestant, and had sworn to his right to vote, and that
he would have voted for contestant had he been permitted to cast his
ballot. This supplemental proof was not furnished in this case.

The committee is, however, of the opinion that if these 124 votes
equaled or exceeded the plurality returned for the contestee so that the
legality of the election depended upon .them, it would invalidate his
election with no further proof and make a new election necessary, and
to that extent the committee agrees with the reasoning of the report
of the minority in Waddill vs. Wise.

Taking this view of the case the 124 voters prevented from casting
their ballots must be considered for the purpose of unseating the con-
testee only, but can not be cons dered in favor of contestant's right to
his seat. The contestee's lack of a plurality would then be the plurality
found for contestant, viz, 731 plus 124 equals 855.

Restating the vote showing the election of Langston we have :

Venable.

Langston.

Returned vote

13,298

12 657

Add Poach and Ross

141

13, 367
119

12, 798
48

13,248

122

12.750
111

Deduct Third Ward, Petersburg as returned

13, 126
518

12, 639

174

12,608

12,405
284

Deduct Sixth Ward, Petersburg, as returned ................... .............

12,608
352

12,749
139

Add votes proved

12,256

12, 610
377

Making total legal vote

12,256

12, 987

12, 256

Showing legal plurality for Lanjjston ..................................

731

LANGSTON VS. VENABLE.

465

Or, to state the account differently, for the sake of illustration, we will
give Mr. Venable all the votes not accounted for in the Third Ward,
and we have

Total vote Third Ward as returned 797

Vote proved for Langston 284

Vote for Arnold, returned 105

389
Leaves balance of vote for Venable. 408

Total as returned 797

And in Sixth Ward, total vote returned ...,. 651

Vote proved for Langston ., 377

Vote for Arnold, returned 160

537
Leaves balance of vote for Venable 114

Total as returned 651

Under this plan the total vote would stand as follows :

[It is unnecessary to include the vote for Arnold, as it does not affect the result.]

Venable. Laugston.

Total vote corrected down to Petersburg!! 13, 126 12,639

Deduct returned vote Third and Sixth Wards 870 313

12, 256 12, 326

A dd vote proved for Langstou, giving to Venable vote not accounted for 622 661

Making the result 12,778 12,987

12, 778

Or a plurality for Langston of 209

Throwing out the third and sixth wards and not counting vote proved
in those wards gives Langston a plurality of 70. Or take the total vote
as returned from the district with the addition of Poarch and Ross pre-
cinct, which is admitted, and re-adjust it as proven in Third and Sixth
wards of Petersburgh, leaving rest of district untouched, and we have
the following result :

Venable.

Langston.

Vote as returned in district including Poarch and lioss.
Deduct returned vote Third and Sixth wards

Add vote proved for Langston in Third and Sixth wards and giving Venable
vote not accounted for

This gives Langston a plurality of .

13, 367
870

12, 497

522

13,019

12, 798
313

12,486
661

13, 146
13, 010

127

The committee adheres to the first of the above statements as being
the legal method of ascertaining the true vote, and uses the latter illus-
trations simply for the purpose of demonstrating that in any view of
the case the contestant is elected and entitled to his seat. It is evident
that giving to contestee the vote not accounted for would be a direct
encouragement to election frauds, as it would give him the benefit of
H. Mis. 137 30

466 LANGSTON VS. VENABLE.

every fraudulent vote which his friends had made it impossible for the
opposition to expose, even after the proof clearly established fraud to
such an extent as to destroy absolutely the integrity of the official re-
turns. In no case has such a rule been adopted.

Sufficient is shown to show the election of contestant, and the com-
mittee does not by its silence indorse the fairness of the election in
many precincts not discussed in this report, but challenged in con-
testant's notice and briefs, and as to which there was evidence of illegal
practices. Neither do we approve of the dilatory tactics pursued
by contestee's counsel in other than the Third and Sixth wards,
Petersburgh, whereby contestant was prevented from pursuing his ex-
amination of many witnesses in such wards.

At Meherrin, Lunenburgh County, one of the judges duly appointed
and friendly to contestant was illegally denied the right to serve and
another substituted in his place unfriendly to contestant. There is
evidence tending to show that 40 votes were cast for contestant and
only 20 returned for him. But the latter fact is disputed, and the re-
turns are permitted to stand.

At Brown's Store there was an unwarranted and unexplained change
of two judges on October 30, only a few days before election, and con-
siderable evidence of misconduct and attempts at bribery by persons
outside of the polls. It is not clearly shown that the results were
affected, and the returns are not disturbed.

At Columbian Grove only one of the legally-appointed judges served,
the electoral board appointing two new judges without notice and with-
out apparent cause or legal authority on October 28, immediately be-
fore the election. One of the legally -appointed judges offered to serve
on the morning of election but was refused.

At Hicksford, Greensville County, there is considerable evidence tend-
ing to show that all the votes cast for contestant were not counted for
him. No friend of contestant was permitted to witness the count. All
the judges and clerks of election were opposed to contestant.

In no case did a substitution of judges result in placing a friend of
contestant upon the local returning board, while in many instances his
friends were removed and his political opponents substituted for them.

The committee desires to express its condemnation of the practice of
re-adjusting legally-constituted election boards during a heated political
contest without cause and without warrant of law, and for the evident
purpose of placing one political party or candidate entirely in the hands
ot its or his political opponents. There can be but one purpose in such
a change, and that a purpose to which criminally- inclined minds only
will resort.

Judge Howell E. Jackson, late a United States Senator and now a
judge of eminence, in his charge to the jury in the recent trial of Ten-
nessee election officers for violating the Federal election laws at Mem-
phis, Term., used the following language:

Said witnesses testified that the voting population of the fourth civil district of
Fayette County on November 6, 1888, numbered between 490 and 500 say about f>00.
That about 80 to 100 of such voters were white men or Democrats; the remainder,
numbering about 400, were colored men and Republicans. That on the day of the
election tliere was a large turn out of such voters. That the colored voters present
exceeded 300 iti number. John McGowan, the Republican chairman of the district,
states that there were over 300 colored Republican voters present. That, he directed
many or most of them to go for their tickets to John C. Reeves, who occupied a posi-
tion 10 or 20 steps from the voting place, and was distributing Republican tickets to
Republican voters. That Reeves' position was in full view of the window at which
the ballots were handed in to the officer. That he saw many of the tickets de-
posited or handed in to the officer holding the election, and can not swear to the

LANGSTON VS. VENABLE. 467

actual number that voted that had Republican tickets. John C. Reeves testified
before you that he was present. That he had in his possession Republican tickets, a
sample of which is produced in evidence, having on it a full list of Republican candi-
dates, from Presidential electors and Congressmen down to State and county officers.
That he issued to the colored voters on that day, upon their application for the same,
325 of those tickets while at the voting place. That on his way home he met four or
five other voters going to the polls, lo whom he gave Republican tickets; the names
of two of those voters he finds upon the poll-list at Nos. 407 and 409. Reeves further
states that he saw over one hundred of tliotft to whom he gave tickets go directly
from him to the window where the votes w*.received and hand them in to the
officer holding the election. He could not swear that they actually deposited the
identical tickets received from him, but he saw no change of ticket or change of
purpose on the part of the voter after procuring from himself the Republican ticket.
He recognizes on the poll-list the names of about one hundred of such Republican
voters. Now, gentlemen of the jury, Reeves and McGowan are in no way impeached,
nor are their statements in any wise contradicted. They stand before you as in every
way credible witnesses, and their testimony is entitled to full faith and credit. If
the case for the prosecution stopped with Reeves and McGowan, it would present a
case of circumstantial evidence as to the vote actually cast having exceeded that
which was counted and returned by the election officers and judges. When circum-
stantial evidence is relied onto convict, as counsel for defense has suggested, it
should be of such conclusive character as to exclude any remote hypothesis of inno-
cence.

It is to be remembered that the last remark has reference to the
proof required to convict in a criminal case.

Speaking in regard to individual voters who had testified to their
votes, he said :

If the prosecution had simply shown that each one of these witnesses was seen
going to the poll with a Republican ticket in his hand which he had received from
Reeves, with a declaration of his intention to vote said tickets, such facts and acts
would have constituted circumstantial evidence that they voted said ticket.

We therefore recommend the passage of the following resolution :

Resolved, That E. C. Venable was not elected a Representative of the
Fifty-first Congress from the Fourth Congressional district of Virginia,
and is not entitled to a seat therein.

Resolvedj That John M. Langston was elected a Representative of
Congress from the Fourth Congressional district of Virginia, and is en-
titled to a seat therein.

VIEWS OF THE MINORITY.

(1) Returns. Irregularities in.

The returns rejected by the county commissioners because they
were not made in accordance with the directory provisions of the Vir-
ginia statutes should be counted by the committee, there being no sus-
picion of fraud or evidence tending to impeach their correctness.

(2) Notice of contest. Parties should be bound by.

If any question had been raised in the notice of contest in regard to
the precinct from which the returns were not signed, and no evidence
taken to show their correctness, the committee would be right in re-
jecting them, but their being no mention of this precinct in the notice
of contest, the contestee should not be required to produce any evi-
dence in regard to it.

(3) Return. When rejected what votes be counted.

If a return is to be rejected, and votes counted for contestant, the
contestee should at least be given his well-defined party vote, which
was cast for him.

(4) Evidence. Testimony actually taken only to be considered, not what
might have been taken.

" The House of Representatives may in a proper case grant additional
time to take testimony, but it will never, until all principles governing
judicial procedure and the hearing and determination of causes are set
aside and utterly disregarded, strengthen and bolster up a weak and
feeble attempt to annul the solemn act of election officials upon the
mere assertion of a party that he could, if he had been favored with
more time, have proved his case."

(5) Votes. Not cast.

There is nothing to indicate that the inability of voters to cast their
votes in time was due to any act of contestee or his partisans. The
plan of allowing voters from the white and colored line to vote alter-
nately was a proper one. The votes not cast cannot be counted for the
benefit or injury of any one.

(6) Excessive votes.

The mere fact that the number of votes returned exceeds the num-
ber of names checked on the voting list does not in the absence of fraud
or of a change in the result affect the validity of the election. (Paine,
599.)

The suspicious circumstances claimed in this case are not inconsist-
ent with the honesty of the returns.

469

VIEWS OF THE MINORITY.

Mr. O'FERRALL, from the Committee on Elections, submitted the fol-
lowing as the views of the minority :

We, the undersigned, members of the Committee on Elections, hav-
ing duly considered the record and the briefs filed and the oral argu-
ments of counsel in the contested election case of John M. Langston vs.
Edward C. Veriable, from the Fourth Congressional district of Virginia,
submit the following as our views :

The Fourth Congressional district of Virginia is composed of the
counties of Amelia, Brunswick, Dinwiddie, Greensville, Lunenburgh,
Mecklenburgh, Nottoway, Powhatan, Prince Edward, Prince George,
and Sussex, and the city of Petersburgh.

At the election in November, 1888, Edward C. Venable was the Demo-
cratic nominee, R. W. Arnold the Republican nominee, and John M.
Langston an independent Eepublican candidate for Congress in this Con-
gressional district.

The contest was waged with great vigor by the Democrats in their
support of their nominee, Venable, and by the Republicans in support
of their nominee, Arnold, and the independent candidate, Laugstou, re-
spectively.

The nominee of the Democrats was a strong and popular candidate, a
resident of the city of Petersburgh, a large manufacturer and employer
of many hands, and he was supported most enthusiastically by his party.

Arnold, the Republican nominee, had the earnest support of General
William Mahone, chairman of the Republican State Committee, a resi-
dent of Petersburgh, and the entire Republican organization of the
district, and substantially all the white, and many of the colored Re-
publicans.

Langston rallied around him the greater part of the colored voters,
and being a colored man, drew " the color line" and demanded the sup-
port of his race over the regular nominee of the Republican party, who
was a white man. He canvassed the district, making everywhere
speeches which were calculated and intended to arouse race prejudices,
denounced the Republican nominee because he was a white man, and
General Mahone, chairman of the Republican State Committee, in the
most violent terms.

The fight between the followers of Arnold and Langston became most
intensely bitter. $

From the prominent and leading colored leaders outside of the State,
as well as within the district, came severe criticism of Langston's course.

Frederick Douglass, now Minister to Hayti, addressed a letter to
prominent colored men in the District, in reply to a letter written by
them, from which we quote the following language in reference to Lang-
ston :

I have nothing whatever to say against the ability of the gentleman who is just now
making a vigorous canvass for Congressional honors in your district. You know his

471

472 LANCRTON VS. VENABLE.

history. He came among yon ostensibly as an educator, and not as a politician. He
had acquired before he came among yon considerable reputation by his ability as a
speaker and by his connection with Howard University. He was on the finance com-
mittee of the Freedman's Bank when most of its bad loans were made. He was among
those who insisted that the doors of the bank should be kept open when he knew that
that concern was insolvent. He remained with Howard University so long as there was
a chance of making himself its president. He deserted it and denounced it when the
trustees of that institution refused to gratify his ambition. Coming among you as an
educator, he sought the earliest opportunity to put himself in training as a politician.
His high vocation as a scholar and a teacher was abandoned for the pursuit of political
honors. I do not say the political sins and sinuosities of John Mercer Langstou are
worse than those of many other men who occupy seats in the uational Congress, but I
do say that they have been such as to justify the colored citizens of the 4th district of
Virginia to regard his nomination as one, under the circumstances, not to be made.

His nominal ion of Hon. Fitzhugh Lee for the Vice-Presidency ; his coquetting with
the Democratic party ; his leaning towards a division of the colored vote ; his duplic-
ity in keeping the name of James G. Elaine at the head of his paper in Virginia,
while he frantically shouted for Sherman at the Chicago convention, clearly with the
motive of making himself secure in the good graces of one or the other, if successful,
proves him to be a trickster. And above all, the insolent announcement of his deter-
mination to force his nomination by threatening the Republican party with division
by running for Congress, with or without the consent of that party, fairly places
him beyond the pale of Republican support.

No encouragement should be given to any man whose mad political ambition
would imperil the success of the Republican party in any section of the Republic.

Yours, for the triumphant election of Benjamin Harrison and Levi P. Morton,

FREDERICK DOUGLASS.

CEDAR HILL, ANACOSTIA, D. C., August 15, 1888.

(Record 22.)

E. L. Singleton, president of the Virginia Republican Association of
the city of Washington, addressed the following letter to Perry Car-
sou, a well-known colored leader:

HEADQUARTERS VIRGINIA REPUBLICAN ASSOCIATION,
No. 738 FOTTRTH STREET NORTHWEST,

Washington, D. C., October 29M, 1888.
Col. PERRY CARSON,

Member National Rfpublican Committee, Washington, D. C. :

DEAR SIR: As the president of the Virginia Republican Association, mimboring200
members, through whose efforts nearly 1000 colored voters will soon be sent to the polls
in Virginia, I have a right to a hearing at your hands regarding the Petersburg!! Con-
gressional embroglio in our State, where Candidate John M. Langston, lately of this
district, well known to you personally and politically, is said to stand with broad-
axe and bowie-knife in hand threatening with direct social and personal injury all
voters of your race and mine who are not of his following in the disastrous Congres-
sional battle which he has brought upon the party in that stronghold of Republican-
ism. Like myself, you, sir, are a black man and proud of the negro race. For eight
years or more yon have faced, and facing have overcome, all opposition to your lead-
ership of the negro masses at the national capital. It will not be forgotten that you
and that noble Irish patriot and Republican Andrew Gleason carried the banner of
the " white plumed knight, " to victory in this city four years ago, and also that right
nobly did you and your compatriot repeat that victory in June last, when the Chicago
convention saw you both, a second time, the trusted delegates of our party in that
great national conclave of Republican representative men.

And when that most illustrious of Americans James G. Blaine, soon after the Chicago
nomination, returned from his journey abroad, borne, as it were, in a million of Repub-
lican arms, it will not be forgotten that one of his first and most earnest inquiries, on
Hearing his native shores, was the one when he said to his bosom friend, Stephen B.
El kins : " Elk inn, I see Gleason abroad ; where is Carson ?"

Xow, sir, as a Virginia Republican, and like yourself a Southern born and raised
black man, I want to know by what right of superiority, in any respect whatsoever,
John M. Langston, who has always boasted of his white, not of his negro, blood,
should have so suddenly become the Colossus and dictator of your race and mine in
Virginia, stirring up strife amongst a large class of its Republican voters by appeals
to their superstitious and ignorance, and riding rough-shod over our old and trusted
leaders there, colored as well as white men. Why, I inquire, should the negro voters

LANGSTON VS. VENABLE. 473

of the District be asked to walk beneath Langston's legs and meekly march, like so
many sheep, to the slaughter which, without a settlement of the trouble into which
he has plunged the party there, awaits us on election day ?

In a brief talk with Langston a day or two ago in this city he contemptuously
waved me away from him, saying I was a Mahone man and too much for white men,
or words to that effect. My simple reply was, that when the colored man needed
friends in Virginia he, Langston, was not on hand; that when a brave commander
was wanted to lead our hosts Langston was never to be found on a single one of our
many and memorable battle-fields. Our captain and leader was General William
Mahone, and a right noble one he was and is.

And now saluting you, Col. Carson, in the words of Napoleon to his great field mar-
shal, Ney, as the bravest of the brave, I want you to kindly inform me, and through
me the Republicans of my State, something of the political character and record of
the most overbearing and audacious man whom I have had the fortune to know since
my connection with State and national politics.
Yours, sincerely,

R. L. SINGLETON,
President of the Virginia Republican Association.

(Record 25.)

To this letter Carson replied as follows:

WASHINGTON, D. C., October 30tft, 1888.
R. L. SINGLETON, Esq.,

President, eto.

MY DEAR SIR : Your letter of yesterday touching the unfortunate condition of polit-
ical affairs in your time-honored stronghold of Republicanism, the 4th Congressional
district of Virginia, is before me. My reply shall be sincere and brief. I am opposed
to the election of Hon. John M. Langston to a seat in Congress from that district
for the very simple and proper reason that he is not the regular or lawful nominee of
the party for that office, and being myself a strict party man, I unhesitatingly ad-
vise all good Republicans, without regard to race or color, to support the nomination
of Judge Arnold for the position in question. From the moment Mr. Langston
uttered his unfortunate declaration to the effect that he should press his candidacy
for Congress, whether nominated or not by the Republican convention, I have classed
him with the bolters, marplots, and other assistant Democrats, of whom our grand old
party has unhappily too many. These are my primary reasons, but there are many
secondary ones, a few of which I may briefly refer to.

Mr. Langston's printed utterance, made either in a speech or interview a year or
more ago, wherein he substantially announced his willingness to support Governor Fitz-
hugh Lee, of your State, for the Vice- Presidency of the United States, fixed his status
in my mind as that of a deserting Republican or a designing hypocrite having an axe to
grind with the Democratic officials, to the end that thrift of some sort might come to
him from desertion of his party on the one hand or flattery and hypocrisy toward
Governor Lee on the other.

From all I know of his conduct whilst an official in this city and otherwise I am
driven to the conclusion that he is, to all intents and purposes, a white man's man,
except when he is doing what he now is, viz, soliciting colored votes for official posi-
tion. In 1882, while a member of the board of health of this city, he never, though
often requested, gave to a single one of his colored fellow-citizens the slightest official
recognition.

I remember that James L. Bowen, a most reputable colored physician, begged the
place of a ward doctor at his hands. Bowen was a graduate of medicine and had had
several years' experience in the practice. Instead of helping that poor negro, he gave
the appointment to a youiig white stripling of a doctor who had not been six months
from school. g

Representing us as anegro, he appointed, with perhaps a single exception, white men
to office, because he was not at that time, nor never was in his taste, habits, or associa-
tion, a negro at all.

He learned decidedly and openly In favor of the white man, and no one who knew
him well, either then or now, will pretend that he is in any sense a reliable and fit
representative of the negro race of this country.
Very truly, yours,

PERRY H. CARSON,
Carson's Hotel, Penn. Avenue, Washington, I). C.

(Record 26.)

474 LANGSTON VS. VENABLE.

A colored minister addressed the following letter to his congregation :

PETERSBURGH, VIRGINIA, October 31st, 1888.

To the members and congregation worshiping at New Hope Baptist Church (colored}, Sussex

County, Fa.:

Beloved in Christ : Moved by a sense of duty I owe to you as your chosen pastor, I
have in the past refrained from all participation in any political canvass, and my pur-
pose to maintain a like course of conduct in the present was fixed, until matters had
taken such course and reached such point that longer to hold iny peace would be a
dereliction of duty to myself as a man and to you as a pastor.

The enunciation lately made by Mr. Laugstou of war against every white in this
Congressional district who should dare to cast his vote against him for Congress, first
opened my eyes to the dangers to my race, which was sure to follow, if the threat of
Mr. Langston was attempted to be carried out.

I could not then hold my peace, and, impelled by the love I bear you, I now do most
earnestly warn you against giving yonr approbation to any such sentiment by affording
the " aid and comfort" of your vote to the author of the sentiment. To vote Mr.
Langston now would be to endorse the sentiment which you must see, of necessity,
will bring upon you the indignant rebuke of every reputable white man in the dis-
trict, whether he be a Democrat or Eepublican. .

The color line could not be more distinctly drawn. To adopt the advice of Mr.
Laugston is to draw this line more closely than ever before, and I ask you, is it not
reasonable for the white man to turn upon you the doctrine which Mr. Langston
would have you apply to the white man ?

You are sensible people, and you must know that, if left to yourself, warring against
the white man, you must be the sufferers. It is our duty to cultivate the kindest,
friendliest relations with the white man not of war.

The Eepublican party has shown its disposition to recognize our race wherever, by
intellect or education, any has shown himself to be capable. Can you say that the
like has been done by the Democratic party ?

Are you forgetful that the Virginia negroes enjoy larger political privileges, greater
advantages of citizenship, than are vouchsafed to the race in any other state! And
do you know that you owe this same to the very men against whom Mr. Laugston
would have you now declare war ? Do you owe Mr. Langston anything ?

Have you forgotten that you owe to the very men whom Mr. Langston now vilifies
the right to vote without the payment of the dollar capitation tax ? Do you owe to Mr.
Langston anything for this? Have you forgotten that to the very men upon whom he
would have you turn your backs you are indebted for free schools, open as well to the
colored child as to the white child, with colored teachers ? Did Mr. Langston give you
any aid in this behalf? Do you forget that yon are indebted to the very men whom
you are advised to ostracise for relief from the whipping-post? Do you owe Mr.
Langstou anything for this? Do you forget that you owe to these very men whom Mr.
Langston now traduces the right to sit in the jury-box? Is this no privilege that
you should cherish? Will you abandon those who invested you with this great priv-
ilege to aid Mr. Langston, to whom you owe nothing for the right? Does it show
gratitude to the men who have relieved such of our race as are lunatics from confine-
ment in the common jails by providing for their exclusive use an asylum which in all
its parts is the equal of the best asylum devoted to the whites by following the
advice of Mr. Langston ? Do you owe anything to Mr. Laugston for the Colored Luna-
tic Asylum ? Have you forgotten the magnificent Colored Normal School, near Peters-
burgh, by which the colored men and women are fitted to teach our colored children,
and will you wage war against the men who have secured such a benefit to you ? Did
Mr. Laugston contribute anything to this great blessing to the colored people of Vir-
ginia.

He has been the recipient of the loaves and fishes, and he has contributed nothing.
Have you lost all sense of gratitude for all these things that you should turn your backs
upon men who have thus proved to be your friends upon the dictation of one who seeks
for his own personal ends to rouse all the worst passions, which must result to your
injury and enure any good to our race ?

My brethren, I beg of you to pause and consider before you shall determine to follow
the advice of Mr. Langston, and imperil the best interest of our race by giving your vote to
a person who has never in any icise, nor at any time, nor at any place, shown himself
friendly to the colored man or to the Eepublican party.

I shall vote for the regular nominee of the Republican party Judge Arnold and I trust
you will do the same.

In bonds of Christian love,

WILLIAM WALLACE,
Pastor New Hope Church, Sussex County, Virginia.

LANGSTON VS. VENABLE. 475

These letters were published in circular form by Langston's Republi-
can opponents and distributed in the district.

The National Leader, a Republican paper published in Washington,
on the 6th day of October, 1888, contained the following editorial:

The admirers of Mr. Langston are greatly injuring their chances of their ambitions
but misguided leader by offering insult to General Mahone. It will be time enough to play
the "Dead March in Saul" when Mahone is beaten, if he can be beaten, and ice are not so
sure that he will be, Mr. Langston should employ experienced and practical poli-
ticians to conduct liis side-show in the fourth Virginia district. Their tactics, if
the Lancet is to be credited, are not such to insure success to their side. It is not
good politics aud certainly not good sense to make a personal enemy of an influential
and powerful politician like General William Mahone, who has done more for the
colored people of Virginia than any white man in the State.

We are not sure that Mr. Langston is as good a friend of the negro as Mahone,
for, if we remember right, he is the same Mr. Langstou who, some years ago in Rich-
mond, declared that if he believed he had one drop of negro blood in his veins he
would lance the artery that contained it and let it out.

Heretofore Mr. Langston has been very white ; now he is very black. We can't
understand it.

General Mahone was by no means inactive while Langston was en-
gaged in " offering insult" to him. He issued an address to the Repub-
licans of the district, which we here give:

To the Republican voters of the Fourth Congressional district:

It is my duty to inform you that at the regular Republican convention for this dis-
trict, held at Farmville on the 19th day of September, Judge R. W. Arnold, of Sus-
sex County, a true and tried Republican, was nominated by acclamation as yourcan-
didate for Congress. This convention was composed of the following legally elected
delegates :

From Sussex . S. T. Drewry, J. B. Jarratt, J. D. Neblett, W. H. Mason, Stith Par-
ham, R. H. Lewis, John Lawhead solid.

From Prince George : Charles Gee, James A. Young. J. R. Teiuplo, E. T. Ellis, Nel-
son Hobbs, James Diggs solid.

From Greenville : B. F. Jarratt and Le Grand Jackson two out of the six dele-
gates elected by the countv.

From Dinwiddie: J. C. Dnane; A. G. Butter wor Lh ; W. D. Falconer; Albert John-
son, by L. E. Colernan, his alternate ; J. C. Spain ; Robert Goodwyn, by Hon. A.
W. Harris, his alternate ; George W. Matthews solid.

From Nottoway; W. H. Ash; J. E. Leath, by Charles Rowe, his alternate: Ryland
Ross ; S. F. Jackson ; E. H. Witmer ; Lewis White, by William Fitzgerald, his alter-
nate solid.

From Lunenburgh : T. C. Matthews; G. W. McLaughlin ; C. E. May, by Henry
Hicks, his alternate; Lee Davis; Junius Bagley solid.

From Mecklenburgh : Ludd Ruffln; Charles Alexander, by Aaron Beard, his alternate;
W. H. Jones; Sowuey Towner; W. H. Jones, sheriff; Samuel G. Baskerville; W. H.
Northiugton, by Gerard Baskerville, his alternate seven out of eleven elected by the
county.

From Powhaian: W. H. Flanagan, Washington Jones, Patrick Mayo, Larry Mosely
solid.

From Prince Edward: Hon. B. S. Hooper, N. M. Griggs, N. M. McGhee, Richard
Woodsou, Cephas Gray, Walker Blantou, Albert S. Hines, Joseph S. Doswell solidT

In all, 52 out of 85 delegates elected to the convention, leaving only thirty-three
delegates who went off and held a mass-meeting and put up Mr. J. M. Langston. Of
the iJ3 delegates so refusing to enter the Republican convention there were 12 from
the city of Petersburg!!, whose seats were contested.

In this state of the case you have before you three candidates for Congress, the
Hon. R. W. Arnold, the regular nominee of the Republican party, Mr. E. C. Venable,
the regular nominee of the Democratic party, and Mr. John M. Langston, the candi-
date put up by a mass-meeting composed of misled Republicans. But one of these
candidates can be elected, and it is for the thoughtful Republican to determine
whether he will aid the elect ion of the regular Democratic nominee, Mr. Venable, by
throwing his vote away on Mr. Langston, or, like a loyal Republican to the Repub-
lican party, resolutely support the nominee of his party, and cast his ballot for Judge
Arnold.

A vote for Langston is half a vote for Venable, and in the interest of the Demo-
cratic candidate for President.

A vote for Arnold is a whole vote for the principles of the Republican party and
in support of the election of the Republican candidate for the Presidency.

476 LANGSTON VS. TENABLE.

Let no true Republican be drawn away from his Republican duty in this contest
by any preferences he may have had for the nomination of his favorite previous to
the Farmville convention, but now that it has met and given us a candidate in the
person of Judge R. W. Arnold, it behooves all true Republicans to stand by him as
the duly delegated standard-bearer of the Republican party of the fourth* district.

WILLIAM MAHONE,

Chairman.

There were many colored men engaged in the canvass for Arnold,
but they were treated rudely and threatened with violence by Langston's
supporters, who were wrought up by him to a state of frenzy. Here is
what A. W. Harris, one of the most intelligent and respectable colored
men in Virginia and a member of the legislature of the State, says:

1. Question. What is your age, occupation, and residence? Answer. I am 36 19th
of this coming .August; lawyer; in the county of Dinwiddie, about two miles from
the city.

2nd. Question. Please state what office, if any, of a public character you are now
occupying. Aus. A member of the house of delegates of Virginia.

3d. Question. Please state whether you took part in the campaign which preceded
the election of a member of Congress from this district on November 6th, 1888 ; and if
you occupied any position in the campaign organization, please state what it was.
Ans. I took part in the campaign, as above suggested, as a canvasser. I occupied no
other position in the campaign organization.

4th. Question. Please state to what political party you belong, what party you sup-
ported as a canvasser in the campaign above referred to, and as the nominee of what
party were you elected to the house of delegates? Ans. I belong to the Republican
party. I supported the Republican party's nominee in the campaign above referred
to. My last nomination to the house of delegates was by the Republican party.

5th. Question. Have you ever belonged to any other political party? Ans. No;
unless one who belonged to the fusion between the Readjuslers and Republicans from
'80 to '83 can be said to have belonged to other than the Republican party. In that
fusion, however, I was a member of the Republican wing.

14th. Question. Afrer the nomination of Judge Arnold by the regular Republican
convention please slate whether or not Judge Arnold made any canvass of this dis-
trict, either personally or by his supporters. Aus. Iknow that from October (lie 1th
until the close of the canvass Judge Arnold spent nearly every day in the various
counties of the district, a majority of the time making two speeches' a day. I know
that he made a pretty thorough canvass through his supporters; that is to say, us I
now remember there were fifteen persons who spent a good portion of the time in the
field as canvassers. This does not include the number of persons who did not leave
their particular counties.

15th. Question. Please name as many as you can of the gentlemen who canvassed
the district for Judge Arnold, and if there were both white and colored canvassers
please signify that fact as yon call the names. Ans. There was W. H. Ashe, 1!. Bas-
kervillejr., W. W. Evans, J. W. Watson, H. C. Cox, J. W. Adams, J. W. Flippen, Col-
lins Johnson, J. R. Jones, William Jones, T. S.JHamliu, C. H. Branch, Peter G. Morgan,
W. H. Jordan, R. B. Baptist, and A. W. Harris. I am not supposed to give everybody
in the canvass, but those I remember just now. The above list is made up entirely
of colored canvassers. I have not undertaken to give any white canvassers in the
above list, because I had not asmnch to do with them as with the colored canvassers,
and therefore remember among the white canvassers only such persons as Senator
Charles Gee, Jamieson of Mecklenburg, Jones of Mecklenburg, Boswell of Nottoway,
Jones of Brunswick, Butterworth of Dinwiddie, and Cardoza of Luueuburg.

16th. Question. Please state, if you know, whether any of the colored canvassers
mentioned have at any time occupied public positions of honor and trust in the com-
munities in which they reside ; and, if so, state who they are and what position.
Ans. W. H. Ashe is a member of the house of delegates from Nottoway and Amelia ;
B. Baskerville, jr., is a member of the house of delegates of Virginia from Mecklen-
burg County; W. W. Evans is a member of the house of delegates of Va. from Pe-
tersburg. These three gentlemen are sitting members from their respective counties.
J. R. Jones is an ex-senator from the senatorial district composed of the counties of
Mecklenburg and Charlotte ; W. H. Jordan is an ex-member of the house of delegates
from the city of Petersburg!! ; Peter G. Morgan is an ex-member of the Virginia legis-
lature from the Petersburgh district, and is at present a member of the Petersburg!!
city council ; Collins Johnson is, as I remember, an ex-member of the legislature
from Brunswick County.

18th. Question. Please state what was the character of the canvass made by Pro-
fessor Laugston and his supporters in furtherance of his election as a Representative

LANGSTON VS. VENABLE. 477

in Congress from the Fourth Congressional district of Virginia. Ans. The canvass,
as I saw it, was a very bitter one. Whenever it could be done successfully the persons
who supported Judge Arnold were prevented from speaking and getting at the crowd
in any way that Mr. Langston's friends could prevent them. The controlling element
of that canvass seems to have inspired the masses with the belief that it was scarcely
less than criminal to oppose the candidacy of Professor Langston. I never in all my
life saw the lines drawn so tightly against a set of people who dared to differ with
another set ; and this condition of affairs extended even to the women. The race line
was tightly drawn, and it was argued that we, the colored people, have a majority in
this district, and because we have a majority we must elect Mr. Langston to Con-
gress. It is the only canvass in which I ever took part that I have seen men on the
opposite side driven from the platform. It was a canvass in which the doctrine was
taught that the colored men were able to do without white Republicans, and in
which the further doctrine was taught that the white or colored Republican who
was not on that side might conceive that all hopes of future advancement or recog-
nition in the lines of the Republican party were sealed. My idea of the canvass as con-
ducted from Mr. Langston's stand-point was that no one was to have an opinion unless
that^opinion wentto the furtherance of the aims and endsof their side. Social ostracism
so far as one colored man can socially ostracise another was practiced throughout the
canvass. It was a canvass which I regard as exceedingly hurtful to the relations exist-
ing bet ween the two races of this section of Virginia, because the animosities and hatreds
engendered were of such a character as to make the colored people restive in their
present condition and attempt to do that by themselves which the experience of the
race in every Southern State since the war has shown can only be done through the
united effort of the white and colored people when they are harmoniously moving
together for the accomplishment of an end. I mean to be understood by this answer
as saying that no strong effective Republican party in the South can be built
up upon black votes alone; that they must have the aid of white men, and those
white men must be drawn from the ranks of the Democratic party, or rather from
that class of white men and their sons who followed the fortunes of the ex-Con-
federacy, by a spirit of toleration on the part of the present members of the Repub-
lican party as one finds it in the South. Such toleration and consideration for the
prejudices and education which has obtained with that class of men was not dis-
coverable in Mr. Langston's canvass, but rather there was a disposition to say to
those people, " If you can't see things as I do, and take that which I mete out to you,
we don't care for you to take a position in the Republican party."

(NOTE. The attorney for the contestant objects to so much of this answer as is
hearsay, mere opinion as shown therein, and shall insist that it be stricken from the
record as wholly illegal. )

19th. Question. You have stated that Mr. Langston's canvass was the only one in
which you have seen speakers of the opposite side driven from the platform. Do you
mean that during the canvass Judge Arnold's speakers were driven from the plat-
form by .Mr. Langston's supporters?

(NOTE. The attorney for the contestant objects to the question both on the
ground that it is leading and is in its character and effect not direct, but cross-ex-
amination.)

Ana. I do. I saw them driven from the platform at Clarksville in the county
Mecklenburg.

20th question. You have stated that Mr. Langston's supporters did all they could
to prevent Arnold's speakers from speaking. Please explain a little more fully how
they did this.

(NOTE. Objected to by the attorney for the contestant as leading and as being*?
cross-examination and not direct.)

Ans. At Clarksville they were plainly told that unless they were there to talk for
Mr. Langstou they would be taken from the stand; and at that place they were fur-
ther told that they did not intend to hear any speakers unless they were in Mr.
Langston's interest. At other places they would get together a good number of peo-
ple who would come near the speakers' stand, howl and shout for Langston, break up
the meeting by that means if possible, or get into a general row, and thereby prevent
Arnold's speakers from proceeding further.

(Record 925.) x

W. W. Evans, a colored member of the legislature, a notary public of
the city of Petersburgb, and editor of the Virginia Lancet, a Eepnblican
newspaper published in the city of Petersburgh, testified as follows as
to Langston's incendiary speeches, his bad conduct in the canvass, the
intense feeling he aroused, and the violent action of his supporters :

7. Quest. You say that your paper, the Virginia Lancet, is a Republican newspaper,
published in this district. Please say how long it has been published, and what other

478 LANGSTON VS. YEN ABLE.

newspapers, published and edited by colored men in this district, were in openrtion
prior to the beginning of Mr. Langston's campaign for Congress? Answer. The Vir-
ginia Lancet was started in 1882. It has been running ever since. During that time
two papers, viz, the Southern Tribune and the Star of Zion, were edited and pub-
lished by colored men. At the time when Mr. Langston began his contest for Con-
gress there was only one newspaper published and edited by a colored man in this
district.

8. Quest. During the years since its foundation what has been the object and aim
of the Virginia Lancet in reference to the colored people, and what has been its posi-
tion and reputation among them ?

(To which question the attorney for contestant objects, as having no relevancy to
any matter in issue in this case, and therefore as being without competency.)

Answer. The Virginia Lancet has aimed to advance the political and material inter-
ests of the colored people. It has had the reputation of being the organ of that class
of our citizens in this section.

13. Quest. Please state as fully as you can, what was the character of the canvass
made by Professor Langston and his supporters in furtherance of his election as a
Representative in Congress from the Fourth Congressional district of Virginia.

(To which question and any answer marie thereto the att'y for contestant objects as
necessarily involving matter which is simply hearsay and matter of mere opinion
without reference, and so without bearing in any proper and legal sense upon any
issue involved in this contest.)

Answer. To say that it was bitter, mean, and vile will express it feebly. It was a
system of organized ostracism of every man who dared to oppose Mr. Langston's
aspirations. Mr. Langston, his friends, and his supporters throughout the district
held up to ridicule every colored man who supported Judge Arnold. Whenever
any of Judge Arnold's canvassers went into the counties to make speeches hi his
behalf they were met by an organized crowd of Mr. Langston's supporters, who
used all their powers to prevent these speakers from discussing the questions which
were at issue in this district. Many of such supporters of Judge Arnold were
forced to travel many miles to secure accommodations on account of the rancor
and bad feeling which had been stirred up by Mr. Langston, his supporters, ami
friends. Not only was this true, but Mr. Langston and his supporters left noth-
ing undone to stir up bitter relations between the whites and blacks of this dis-
trict. They went so far as to demand the support of every white Republican in the
district upon the penalty that they were never to be voted for by the colored voters
unless they supported him. During that canvass some of Mr. Langstou's friends
and supporters made it their special duty to insult me while I passed along the street s.
whenever I appeared in a public meeting, ofttimes coming to my office for that purpose
Many of these men were good, honest, and industrious citizens who were incited to
these acts by some of the men of the colored race who claimed to be intelligent leaders.
It is known that Mr. Langston openly defied the Republican organization of the State
and nation, and that he had the support of none of the loyal Republicans of this district
after his nomination. A great many of the men who have been true to the Republican
party in the past were misled and misguided, and gave him a support which many of
them, to my own knowledge, this day regret.

14. Quest. What was the especial ground of difference between the leading colored
men who supported Judge Arnold and the supporters of Mr. Langston ? Answer. The
men who supported Judge Arnold believed that the success of the Republican party in
this district could only be effected by giving hearty and cordial support to the regular
candidate of the Republican party. Judge Arnold was the regular nominee of that
party in this district for Congress. These men believed that by supporting any inde-
pendent, white or black, they would injure the chances of the success of the party. Mr.
Langston made his fight from the beginning on the ground of color. The men who sup-
ported Judge Arnold could not sympathize with such a movement because they believed
that it would be impossible to win in any way that would advance the race upon such
grounds. Prof. Langston is undoubtedly one of the most cultured of the men that has
been produced by the negro race in America. His reputation as an orator is well
known. His ability to reach the masses was well shown in the recent contest for
Congress. He, however, got on the wrong side of the question. I mean by that that
he took himself outside of the Republican party. The men who supported him did so
on account of the fact that he was a leading colored man. In this you will find, in
some measure, the reason why leading colored men differed.

15. Quest. Is Prof. Langston a man of family, and if so, where does his family live?-
Answer. Mr. Langston is a man of family. I have had the pleasure of meeting his
wife. I think his family live in Washington, D. C.

16. Quest. Has Prof. Langston any reasons for taking up a permanent residence
apart from bis wife and family? Answer. None that I know of.

17. Quest. Has Prof. Langston any permanent house and home in the State of Vir-

LANGSTON VS. VENABLE. 479

giniaT Answer. When Prof. Laugston came to Petersburg in 1885 I was then secre-
tary of the Virginia Normal and Collegiate Institute. I ofttiuies had reason to con-
sult Prof. Langstori, who was at that time the president of that institution. He re-
sided then at the corner of West street and Lee avenue. I think he has called that
his home ever since. I don't know positively whether that is his home or not.
(Record, 1038).

We have now quoted sufficiently from the record in this case to
show how greatly divided the Eepublicau party of this district was in
the fall of 1888; quite enough to indicate beyond doubt that the dis-
seutions in its ranks were of such a character as to disorganize it and
give a harmonious and well-organized opposing party, though in the
minority, every hope of success; that the Democratic nominee was in
a position to draw from both factions of the Eepublican party, while
Arnold could not draw from Langston, nor Langston from Arnold.

It was then no surprise to the voters of the State when the result
was announced after the returns came in that Venable had received
13,298 votes, Langston 12,657 votes, and Arnold 3,267 votes, giving
Venable a plurality of 641 votes.

The surprise comes now when the Committee on Elections of the
House of Representatives, by a vote of 5 to 4 (two Republican and
two Democratic members being absent, and two Republican members
declining to vote), finds that John M. Langston, and not Edward C.
Venable, was duly elected to a seat in the Fifty-first Congress.

As members of this committee, we had carefully examined the record
in this case; we had listened attentively to the oral arguments and
closely studied the briefs filed, and we had come to the deliberate con-
clusion that no partisan feeling, however intense or blinding, could so
warp the facts or exclude the testimony as to result in a finding in
favor of the contestant.

We know that we are all liable, unconsciously it may be, to be
affected by party bias and to have our judgments swayed from the
right channel by partisan prejudices; but we felt that this was a case
so plain there was no place upon which to rest even a doubt, and that
there would be an unanimous decision in favor of the contestee.

In fact, we believed that nearly if not every member of the commit-
tee had rendered a verdict against the contestant in his own mind when,
after the argument, the case was submitted, and we were astounded
when we found such a change had coine over our RepuDlicau colleagues.

Usually, in fact almost universally, when a contest is made for a seat on
the floor of Congress, the contestant makes charges against the oppo-
site political party to which he belongs.

A Republican contestant charges fraud or improper conduct upon tln&
part of the Democratic party, and vice versa. In this instance, how-
ever, the contestant, though a Republican, bases his contest almost
exclusively upon charges against the chairman, cominitteemen, Federal
supervisors, and election officers of his own party.

In the record, and in his briefs, he charges a conspiracy upon the
part of General Mahone, and those he terms " Mahoueites," to defraud
him, and most unmercifully does he apply the lash to them.

On page 30, of one of his many briefs, he charges General Mahone
with former frauds. He goes back to the years 1874 and 1878, and
arraigns the chairman of the State committee of his party with ballot-
box stuffing and the use of fraudulent tickets. He says:

In the year 1874, when Wm. Hodges Mann, of Nottoway County, ran against Hon.
W. H. H. Stowell for Congress, and in the year 1878, when Wm. E. Hiuton, jr., of
Petersburg, ran against Hon. Joseph Jorgenseon for Congress while General Win,

480

LANGSTON VS. VENABLE.

Mahone was an active partisan leader of the Democratic oarty in the Congressional
district of which Petersburg was a part, and before he had been refused the Demo-
cratic nomination for governor of Virginia the district was flooded with little
ballots, then called " kiss- verse tickets," bearing the names of the Demooratic candi-
dates for Congress, and resembling in size and shape and texture the interest coupons
which in these latter days are clipped from corporation conpou bonds. A fac-simile
of one of these ballots is produced here. The originals were printed on tissue paper.

City of Petersburg!!.
Virginia.

ELECTION,
November 3rd, 1874.

For Representative

in Congress
From 4th District ;

Judge
WM. H. MANN,

of
Nottoway County.

Again, on page 35, he says :

3. It is alleged and proved that Mahone procured and had printed and circulated
a letter from Frederick Douglass, dated August 15, 1868, and addressed to George
Fayerman, Peter G. Morgan, and other political intimates of Mahone, opposing the
nomination of John M. Langston as a candidate for Congress, at the Republican
convention then called to be held in Farmville in the month of September following.
(Rec., pp. 884, 886.)

He quotes approvingly, on page 38, the following attack on General
Mahoiie, which appeared in the columns of the New York Tribune:

General Mahone's charges about Mr. Elaine's conspiring against him in Virginia
have as much truth in them as the statements just noted. It is a poor cause that stands
in need of tactics like these, and Virginia Republicans will do well, in the light of
this exposure, to take very little advice from General Mahone hereafter as to their
conduct in national politics.

We take pleasure in saying that whereas we have sometimes suffered ourselves to
b9 persuaded in the past that General Mahone was an honorable and efficient leader
of Virginia Republicanism, our better judgment has always inclined us to the com-
mon belief, which has now become a settled conviction, that he is a selflsh and mali-
cious trickster, unfit for the leadership of any cause which has not for its sole motive
and object the elevation of William Mahone.

Again on page 48, he says :

Proof of the enthusiastic solidarity of the colored Republicans could not further
go. What chance had Arnold and Mahone, or Venable, without fraud and bribery,
to get votes out of such a constituency.

The testimony in other parts of the record, and the incessant wailings of Arnold
andMahoue and Veuable ever since this contest began, prove that in the other counties
of the district and in the city of Petersburg!! the feeling was as intense, and the pur-
pose to vote for Langstou as determined, as they were in Sussex.

No, no! no!! Mahone's opposition to Laugston does not give even colorable support
to Mr. Venable's pretended plurality.

FALSE PRETENSES.

But, in very truth, the reason assigned by Mahoue as excuse for his opposition to
Langston's candidacy before the Farmville convention, was a false pretense ; and the
colored Republicans of the Fourth dTstrict knew it. As a pretense, it was good enough
and plausible enough to deceive and mislead some Republican statesmen who were
captivated by the idea of winning recruits from Democratic ranks, and, unfortun-
ately, were persuaded to accept Mr. Mahone's assurances as evidence of truth.

LANGSTON VS. VENABLE. 481

Again, on page 52, lie assails the great Republican leader of his party
in Virginia in the following style :

Mahone foresaw in Langston a local rival. He will endure no rivalry. He recoils
from the perils of comparisons, which are to him very odious. So long as Langston
might wish to he the Republican candidate for Congress from the Fourth Congres-
sional district of Virginia there seemed to he no chance for Mabone. The thought
distressed him. One can imagine Mahoiie in soliloquy, muttering the words which
Prince Henry outspoke in the altercation with Harry Hotspur which preluded their
fatal duel :

I am the Prince of Wfhlales; and think not, [Langston],

To share with me in glory any more.,

Two stars keep not their motion in one sphere ;

Nor can one [districtl boar the double reign

Of [John M. Langston J and the Prince of W[h]alea.

Delendo est Carthago! Langston must go under! And now, "grand, gloomy, and
peculiar, he sits upon his throne a sceptered hermit, wrapped in the solitude of his
own originality."

The meanness of the motive was as patent as the deceitfulnese of the pretense. The
negroes were not deceived. But they were deeply grieved to see a selfish and un-
scrupulous man who entered the Senate of the United States in December, 1881, as
a Hancock and English Democrat-Readjuster permitted again to wield his merciless
and masterful lash, and to insult, degrade, and torture the African race in the person
of their Representative ; and they huddled together with the instinct of self-preserva-
tion. If all the ballots which were truly cast and deposited for Laugston by the col-
ored Republicans of the district had been honestly canvassed, counted, and returned,
Mr. Langston would have had a majority over both of his competitors. Mr. Langston
has been assured by many colored Democrats that they voted for him,

Read here how he pours out his wrath upon the "Prince of W(h)ales,"
as he contemptuously terms General Mahone in his soliloquy above
(page 57) :

The contestee and his advocates reproach Mr. Langston for not attending a meet-
ing at the Academy of Music, in the city of Petersburg, when Senator Blair, of New
Hampshire, delivered a speech under the auspices of General Mahone. They say :

"You chose to absent yourself, and were represented at that meeting only "by a
crowd of your boisterous and ill-mannered followers and supporters, who offered in-
sulte to General Mahone while he was introducing Senator Blair to the audience."
(See brief for contestee, near bottom of page 13.)

What tender solicitude for Mahone!

Mr. Langston was not there, and is hardly responsible for the manners of "fol-
lowers," who, if they had followed him, would have been at home. As was expected,
Mahone abused the confidence of Senator Blair, and tried to use his name, character,
and influence for the purpose of insulting and degrading the colored men of Peters-
burg, and Langstou as their representative. Mahone hired the hall and controlled
it. White Republicans were admitted upon the main floor, to the lower portion of
the house, but colored Republicans were compelled to go up in the gallery. This
order was enforced by JohnCrosstick and E. T. Berry, two white men who had been
policemen. And after the election, both of said persons were appointed by the Dem-
ocratic municipal authorities of Petersburg to salaried offices. (Rec., pp. 120, 536,
etc.) f

But he does not stop, as we have said, in his attacks upon the chair-
man of thi^ State committee of his party, but in his notice of contest and
in his briefs he charges the Republican judges of election, Republican
clerks of election, and Republican Federal supervisors all over the dis-
trict with ballot-box stuffing, false counts, and frauds generally.

In his notice of contest he assails the returns as fraudulent, and
charges the election officers with fraud at the following precincts :

Lewiston, Columbian Grove, Meherrin, Brown's Store, Pleasant Grove, Rehoboth,
Knight's and Oliver's Mills, and Lochleven, in Lunenburg County ; Blackstone, in
Nottoway County ; Hieksford, Zioii or Moss, Belfield und Trotter's Store, in Greenville
County; Rives, in Prince George County ; South Hill, in Mecklenburg County ; Balls-
ville, in Powhatau County; Rice's and Spring Creek, iu Prince Edward County; Till-
man's and Edmunds' Store, in Brunswick County; New Hope, Sutherland, and Court
House, in Dinwiddie County; first election district, First ward, Third W;ird, Fourth-
Ward, and Sixth ward. Petersburg City.

H. Mis. 137 31

482

LANGSTON VS. VENABLE.

Now let us see to what party or parties the election officers who are
so vigorously assailed by the contestant belonged :

Federal
super-
visors.

Judges.

Federal
super-
visors.

Judges.

Republican.

Democrat.

Republican.

Democrat.

Doubtful.

Republican.

Democrat.

Republican.

Democrat.

Doubtful.

1
2
2
2

South Hill*

Meherrien....

Ballaville*

Brown's Store

Rice's

....

Tillman & Edinuuds' Store*
New H opo*

Knight's & Oliver's Mills*.

Blackstone

LI
LI
1
1
LI

2
2

2
2
2

Court -House*

First ward, first precinctt .
Third ward

1
1

2
2

....

Belfieltit

Fourth ward*t

Trot ter'a Storet .........

Sixth ward

....

*No testimony.

tMuch testimony was tafcen by the contestant at these precincts, but his own supporters disproved
his charges, and he abandons them. His charges embraced 27 precincts, but he took no testimony to
sustain his allegations at 14 of them.

It will be observed that at every precinct at which he took testimony,
excepting one, there was a Republican official, and that at all but three
there were Republican Federal supervisors, and two of these three
precincts he abandoned. So that we have :

Precincts assailed 27

Precincts where no testimony was taken 13

Precincts where testimony was taken, at which there were Republican judges 12

Precincts where testimony was taken, at which there were Republican Federal
supervisors 9

We say that the contestant has charged the election officers of his
own party with the great crime of cheating and defrauding him out of
his election, and that he comes before the House and country arraign-
ing generally the election officials of the party of which he professes
to be such a warm adherent, as deep-dyed criminals.

He has, however, the satisfaction of knowing that he has convicted
Republican officials as well as the chairman of the Republican commit-
tee of the State of Virginia by the verdict of five Republican members
of the Committee on Elections of the House of Representatives, and
that while these officials and the chairman and leader of his party
stand condemned, he stands approved, indorsed and sustained by this
verdict of five out of nine Republican members of the committee, or
five out of fifteen members composing the whole committee.

Whether the House of Representatives with its three hundred and
thirty members will affirm this verdict and place its stamp of condem-
nation upon these men or send him away with his. false clamor remains
to be determined.

We propose now to refer to the positions taken by the majority in
their report.

POACH AND ROSS.

They claim that the returns from Poach and Ross precinct in Bruns-
wick County, which gave Langston 141 votes and Venable C9 votes, and
which were rejected by the canvassing board, should be counted.

LANGSTON VS. YEN ABLE. 483

We find that these returns were rejected because they were not made in
accordance with the directory provisions of the election statute of Vir-
ginia; and, in the absence of any suspicions of fraud, or evidence tend-
ing to impeach their correctness, we think they should be counted.

Venable.

Langston.

13, 298

12, 657

Add vote at Poach and .Ross ...... . . ...... .... ....

141

Total

13, 367

12, 798

Majority for Venable 569.

MANNBORO, AMELIA COUNTY.

The majority of the committee reject the vote at this precinct, which
was counted by the canvassing board, upon the ground that there are no
returns.

It is true the returns from this precinct were not signed by the officers
of election, and if the question had been raised in the notice of contest
and no evidence taken to show their correctness, we would agree with
the majority that they should be rejected. But the notice of contest,
will be examined in vain for any charge or reference to this precinct.

It is unnecessary to refer to a principle so well settled that a con-
testant must be confined to his allegations and the contestee can not be
required to do more than meet them. The contestee, finding no charge
as to this precinct, was justified in ignoring any attack which the con-
testant made on it in his testimony. The vote as counted was Venable
122, Langstou 111.

SIXTH WARD OF PETERSBURG!!.

According to the returns from this precinct:

Votes.

Venable received 352

Langston received 139

Arnold received . . 160

Total ^ f 651

The majority of the committee propose " to readjust" the vote at this
precinct by rejecting the returns as an entirety, and then giving Langston
377 votes (which they claim have been proved to have been cast for
him), and Veuable none,

This is at least a startling proposition. Let us examine the facts.

The election was conducted by two Democratic and one Republican
judge, and one Democratic and one Republican cleric, and watched by
one Democratic and one Republican Federal supervisor. All were intelli-
gent white men.

B. D. Akers, one of the judges, testified that he turned the ballot-box
upside down and exposed it to the judges, clerks, and United States su-
pervisors in the morning, before the balloting commenced. (Question 16,
Kecord, 819.)

484 LANGSTON VS. VENABLE.

That there were Republican tickets at the polls in circulation with
Venable's name on them, similar to the regular Republican ticket and
Langston ticket, and that they could not be distinguished except by
reading them. (Questions 54-62, Record, 821.)

That both of the supervisors were present from the opening of the
polls to the closing. (Question 75, Record, 822).

That both supervisors personally scrutinized the count and canvass
of all the ballots cast. (Question 85, Record, 824.)

That during the entire day they were in a position to see all that
transpired in the voting place, and that the Republican supervisor sat
by the side of the ballot box with his face to the judges and clerks, and
could see the ballots as they were handed in by the voters, and as they
were deposited by the judges in the ballot box. (Question 92-4, Record,
824-5.)

That there was no discrimination made between white and colored
voters, and many colored voters voted in the white line ; that there was
no unnecessary delay in receiving the ballots, and that a vote was cast
about every minute. (Question 100-110, Record, 825.)

And his examinatiou-in-chief concludes with the following question
and answer the one as searching as possible and the other thoroughly
responsive :

134. Q. Can you or not, now that you have been fully questioned as to the election held in
sixth ward, in the city of Petersburg, on the sixth day of November, 1888, stale lhat the
returns of that election, as made to the clei'k of the hustings court of rcternlmrg and now on
file in hi* office, contain a full, complete, and accurate statement of the number of ballot*
cast at sixth ward voting place on that day and of the number cast for each candidate voted
for at that election ? A. Yes, sir ; I can and do so state. (Record, 827.)
Cross-examination :

'.57. Q. Were any other persons present in the polling-room at sixth ward on Gth of
Nov., 1888, from the opening of the polls to the sealing of the poll-books and ballots,
besides the judges and clerks of election and U. S. supervisors already named? A.
No, sir ; excepting the boy that brought the meals.

38. Q. Were any of these persons absent from the polling-room at any time after
entering upon the discharge of their duties to said sealing of the poll-books and bal-
lots ? A. No, sir ; with the exception of one time when Mr. Scott went outside to
stop the loud talking and noise, he being the only one to my recollection that left
the room during the day.

39. Q. Mr. E. T. Berry, U. S. supervisor, has testified that at the closing of the
polls the box was opened and the ballots were dumped in a pile upon the table. Does
that agree with your recollection ? A. Yes, sir.

40. Q. You have stated that the ballots were then canvassed by the judges. Were
tht; ballots opened at this time, or counted folded. I mean just as voted f A. Yes,
sir. 1 canvassed them folded. No one counted them but myself, with the judges
and supervisors and clerks looking on.

41. Q. Did the ticket* found in the box exceed the names on the poll-books ? A.
No, sir. It was short one ballot.

4'2. Do you remember whether there were any tickets, when the counting came to
be done, having the name of one candidate for Congress scratched therefrom, and
another name substituted? A. Yes, sir. There were twelve scratched ballots. Ten
of them had Langston's name scratched out and Venable's name written in pencil in
place; one with Arnold's name scratched out and no name written in the place of it;
one with Venable's name scratched out and no name written in place of it.

43. Q. Was there any considerable number of ballots voted openly at sixth ward
on the b'th Nov., 1888? A. There was. There was a good many white and a good
many colored, and a good many of both voted their ballots folded

44. Q. When a ballot was handed you open, did you not necessarily see what names
some of them contained ? A. Yes, sir.

45. Q. You always folded a ballot before depositing it in the box, did you not?
A. Yes, sir.

4(5. Q. During the count of the vote to ascertain the number of votes received by
e.ieli candidate, did you again count all the ballots yourself while the other officers
Jiioked on, or were the ballots divided into portions and each portion counted by :\>
different person? A. All three of the judges separated the, ballots into piles of fifty
or a hundred, dividing the Democratic ballots from the Republican. As soon as this

LANGSTON VS. VENABLE. 485

was done we counted the Democratic ballots to find out the number of votes cast for
the electors, and Republican likewise. Then we separated the Republican ballots to
get at the name of the Congressmen at the bottom, and we separated those ballots,
putting the Lnngston ballots to themselves, the Venable ballots to themselves, and
the Arnold ballots to themselves. Then wo counted them and gave each candidate
what those ballots called for. I counted myself all of the tickets for Congressman,
and requested Mr. Berry to count them after me for fear of mistake. This being fin-
ished we examined the scratched tickets, and gave to each one what those tickets
called for.

47. Q. During all this separation and counting, who. if any one, handled the bal-
lots besides yourself, Eckles, and Lewis ? A. No one.

48. Q. Did neither of the U. S. supervisors or clerks help to divide the ballots into
piles of fifty or a hundred ? A. No sir.

49. Q. Did not Mr. Berry handle the ballots when he counted them at your re-
quest ? A. Yes, sir ; he handled them to see if my count was correct and also to sat-
isfy himself.

50. Q. Did Mr. Scott handle the ballots to the same extent ? A. No, sir ; he never
touched a ballot during the day.

51. Q. You are certain, then, that neither of the clerks of election handled the bal-
lots at all? A. Yes, sir; I am certain. (Record, 830, 831.)

This witness stands imimpeached. The contestant did not call a wit-
ness to testify that he was not a man of truth and integrity. He is an
old resident of Petersburg and has held responsible positions in the city
government.

We refer now to the testimony of the Eepnblican Federal supervisor
who was an office holder for years under the Republican administration
of the city.

E. T. Berry testified he was a Republican ; thai he was appointed
Federal supervisor as a representative of the Republican party by the
Chief United States supervisor, M. F. Pleasauts ; that he was in-
side the voting place every moment of the time between the opening
and closing of the polls, except once about a minute, during the day-
time, when he appointed some one in his stead and retired to meet a
call of nature. (Questions 11, 12, 14, 15, 16, 33, Record, 843, 844.)

That he agreed to act as supervisor at the request of Harrison
Waite, chairman of the Republican City Executive Committee. (Ques-
tions 42, 43, 44, Record, 844, 845.)

That he personally watched the conuting of the ballots and the mak-
ing of the return; that he personally scrutinized, counted, and canvassed
each ballot cast at that precinct, and that the return made by the judges and
clerks is a full, fair, and accurate statement of the number of ballots cast
on that day at : hat precinct, and a true and accurate statement of the num-
ber of ballots cast for each candidate voted format that election. (Questions
48, 49, 50, Record, 845.)

That there was no discrimination between white and colored voters;
that he saw Republican tickets at the polls with Venable's name on
them, and that there was no difference in the appearance of the various
Republican tickets which were in circulation. (Questions 51, 58, 59,
GO, 61, Record, 845.)

On cross-examination he testified that the judges, clerks, and super-
visors were all present during the count and canvass of the vote.
(Record, 861.)

This witness was subjected to a most severe cross examination; no
less than four hundred and thirty-four cross-questions were propounded
to him, but the only effect it had was to emphasize the fact that he was an
ardent and enthusiastic Republican and a close political friend of the
Republican State chairman, General Mahone, and that the election was
fairly conducted and the returns absolutely honest.

No witness was called to attack his character.

486 LANGSTON VS. VENABLE.

E. J. Bond testified that he was present at the polls when they were
opened and was there all the time until they were closed, with the ex-
ception of about ten or fifteen minutes twice; that the full Democratic
vote was out; that one of the judges displayed the ballot-box to all that
were present to show that it was empty before any ballots were received ;
that he (the witness) objected to E. T. Berry serving as Federal supervisor
upon the ground that he had not been appointed for that precinct, but
withdrew his objection when Berry presented his commission ; that when
he made his objection there were supporters of Laugston at the polls
and within hearing, but they made no objection to Berry; that Langston
was at the polls also, but he heard of no objection to Berry upon his
part; that Arnold had all the white and many of the colored Repub-
licans supporting him at this precinct, and he saw many colored men in
line with Arnold tickets in their hands; that he knew of Republicans
who voted for Harrison and Morton and Yeuable; that he saw no dis-
crimination upon the part of the election officers; that there were colored
elubs organized for the support of Venable, and he heard of colored Ar-
nold clubs. (Record, 870-872.)

His examinatiou-in-chief concludes with the following questions and
answers:

40. Did U. States Supervisor Berry remain inside the polling place all day ? Ans.
He did, so far as 1 know, as I did not see him come out any time dining the day.

41. After the polls had closed did you see any of the officers of election couie out of
the polling place before the vote had been counted ? Ans. I did not.

4*2. After the polls had closed, did you see any one go in while the vote was being
counted and canvassed ? Ans. I did not.

43. Did you see or hear the officers of election refuse to admit any one applying for
entrance ? Ans. I did not hear any one applying, therefore heard no one refused.

44. Please say whether or not any act of fraud or illegality came under your obser-
vation at 6th ward during the conduct of that election. Aus. I did not.

45. Was or was il not, so far as you could see, a fairly conducted election f Ana. From
the time that I saw 1hem in the morning until I left at night, I saw nothing that was unfair
or unlawful. Mr. Alexander Hamilton, a friend of Mr. Fenable, was present some time
during the day, and asked me how the voting u~as progressing, and I answered "Very ii'ell."
He said to me, " Urge your judges to vote the voters as rapidly as they can," which I did do
on more than one occasion. On the occasion of Mr. Butler Mahonds timing the rating, he
said to me ''A good many voters at that precinct were complaining to his father. General
Mahone, that they, the voters, were being voted too slowly at 6th ward precinct, and that if
they were not voted faster he would be obliged to have 'the judges of election arrested for un-
necessarily delaying the voting." But after timing them he was satisfied, and said he would
go and tell his father that he thought they were being voted as fast as possible.

We have the sworn returns of the judges and clerks of election, Dem-
ocratic and Republican, and also of the Federal supervisors, Demo-
cratic and Republican. In addition we have the depositions of one of
the Democratic judges and the Republican Federal supervisor swear-
ing unqualifiedly to the correctness and honesty of the returns, and
other evidence of a corroborative character.

In election cases, however, before a return can be set aside, there must be proof
that, the proceedings in the conduct of the election, or in the return of the vote, were
so tainted with fraud, that the truth cau not be deduced from the returns. (Mc-
Crary, $ r>:54, and seq.)

The returns must stand until such facts are proven as to clearly show that it is not
true. (McCrary, $536.)

The official acts of sworn officers are presumed to be honest and correct until the
contrary is made to appear. (McCrary, 538.)

The presumption is that an election is honestly conducted, and the burthen of proof
to show it otherwise, is on the party assailing the returns. (McCrary, $542; Paine,
$759, ?b^, 763, 764.)

The maxim lh;it "fraud is not to be presumed" applies as well to the conduct of
elections and making returns, as to transactions between individuals; and there is
also a stronger presnmptiou against fraud which arises from the acts of public officers,

LANGSTON VS. VENABLE. 487

acting nnder the sanction of their official oaths; and nothing but the most credible,
positive, and unequivocal evidence should bo permitted to destroy official returns. It is
not sufficient to cast suspicion upon them ; they must be proved fraudulent before
they are rejected. (6 A. and E. En. of Law. Elections, p. 354, and authorities there
cited. Paine, 759, 762, 763. )

How and upon what evidence do tbe majority of the committee in the
face of the sworn returns of the officers of election sustained by the
depositions of the officials just named and others, propose to set aside
and discard the returns at this precinct and give Langston 377 votes
and Venable none?

Ignoring completely the testimony just quoted, the majority refer to
and set out in extenso the testimony of two witnesses, Thomas H. Brown
and Pleasant Goodwyu, both colored. Brown swears that he was at the
polls all day except about fifteen minutes, assisting- Goodwyu in keep-
ing the names of the colored voters who voted for Harrison, Morton,
and Langston, by checking the names on a registration list as Goodwyu
named them ; that he could tell they voted for Langston because he
aw their tickets when they were given to the judge of election, as each
of them voted an open ballot ; that he was standing within 2 feet of
the door and about 4 feet from the judge when at the ballot-box,
and that 370 names were recorded.

Goodwyn swears that he was engaged in recording the names of
colored voters who voted for Harrison, Morton, and Langston, and that
he occupied a chair nearly the entire day within 2 feet of the door of
the polling place and about 4 feet from the judges .who received the
ballots thp entire day, and that he received 408 names and that 377 of
them voted for Langston.

The improbability of Brown and Goodwyn's stories is so strong that
we can not see how they can be relied upon to set aside the solemn re-
turns of election officers. Common sense and experience teach us that
it was impossible for these men to observe the tickets and watch the
movements of 377 men running through an entire day from the rising
to the setting of the sun and these men mixed up and necessarily
shifting their positions in a crowd of 600 or 700 voters, and at the same
time record their names on one book and check them on another.

Besides, it is hard to believe that physical endurance could have been
equal to the task of remaining in one position, jammed by the multi-
tude for twelve hours without food or drink (for they had neither ac-
cording to their testimony), and without nature calling them away
from their post for a moment.

We say to believe such testimony, if it stood uncontradicted, and the
witnesses were men whose characters were as high as any in the land,
would tax human credulity too much.

But they are contradicted, in that it is shown that they were not en-
gaged in taking and checking the names at the point they swear they
occupied the entire day.

They say they were within 2 feet of the door and about 4 feet from
the judge who received the ballots, and that they saw every ballot be-
fore it was deposited, and saw it handed to the judge and saw the
judge deposit it in the box.

Akers, the judge who received the ballots, contradicted them:

71. Q. Did you or not see Pleasant Goodwyn and Thos. H. Brown at sixth ward
voting place that day ? If you did, state where you saw them. A. I do not know
Pleasant Goodwyn, jmd I know Thos. H. Brown by sight. I saw Thos. H. Brown
once during the day, and he was standing about eight feet from the door leaning up against
the fence. (Record, tt22.)

488 LANGSTON VS. VENABLE.

75. Q. Pleasant Goodwyn, in answer to question 15. on his direct examination in
behalf of the contestant, has used the following language: "I was as close to the
judge as the wall of the door would perm it me bei wren Iiiin and the box." You have
said that you do not know Pleasant Goodwyn hy sight. Did you or not see any per-
son in the place thus described? A. / did not see any one but William H. Jordan. He
was the only one I saw near the door. (Record, b^.)

Neither Townes nor Harris, the Langstou ticket distributers, even
mention the names of Brown and Goodwyn in their lengthy depositions,
and no other witness of the many examined by the contestant refer di-
rectly or indirectly to these two men who, according to their statements,
were within an arm's reach of the ballot-box every minute of the day
scrutinizing the tickets in the hands of the voters, receiving and check-
ing their names.

Could they have occupied such a conspicuous position at the polls
and been visible only to each other 1 ?

We insist that the returns from this precinct can not be destroyed by
such testimony, when under the law " nothing but the most credible,
positive, and unequivocal evidence should be permitted."

Continuing our examination of the evidence as to this precinct, we
find that Richard Townes and J. York Harris testify that they issued
all of the Langston tickets that were placed in the hands of the voters.
(Record, 283-292.)

Townes testifies he issued 150. (Record, 28G.) Harris is silent as to the
number he issued. (Record, 291.) So there is no proof that more than
150 Langstoii tickets were issued, and the returns gave him 139 votes.

But there is no evidence whatever that either Townes or Harris
issued Laugston tickets except what they declare themselves. Townes
says he got the tickets from Colonel Brady who was Langston's mana-
ger, but Townes could not read, as will be seen from the following ex-
tract from his deposition :

25th. Question. You say that you can read enough to see that the name of John
M. Laugstou was on your ticket. Can you spell " Langston" ? Answer. I don't say
that I can spell the whole, but I can spell the first three letters in his name.

26th. Question. Can you tell a capital L from a capital T by sight? Answer.
I can't say that I can ; but what I had reference to on the ticket the reading com-
menced with a " J."J-O-M John the way I spelled it.

2?th. Question. Then this J-O-M was the only part of John M. Langston's name
you could read, was it ? Answer. Distinctly, I meant to say and I know that there
were no other John's name on the ticket who were running for Congress.

28th. Question. Can yon tell me any other letters at all which followed this J-O-M
on the ticket? Answer. J can't say that I can right now.

29th. Question. You say that J-O-M was the only part of John M. Langston's name
which you distinctly read. Did you read the balance of his name indistinctly ?
Answer. I did not. Whenever I looked at the ticket and discovered the letters J-O-M
I was satisfied it was Langston's ticket.

30th. Question. You are satisfied, then, that the ticket you voted had J-O-M on it,
are you ? Answer. I am.

31st. Question. Then if J-O-M was the only part of the ticket which you could
read, how can yon swear that the balance of the name was the balance of John M.
Langston's name ? Auswer. The J-O-M I could make out on the ticket myself, and I
had my brother-in-law to read the ticket from bottom to top to me before I attempted
to vote ; and not only him, I had the ticket read during the day by several other
young men that were around, andlhad|uoother tickets in my possession. (Rec., 286-7.)

It is a significant fact that though Colonel Brady lived in Peters-
burgh, he was never called as a witness to verify the statement of
Townes.

We must infer that Brady's testimony would not have aided the con-
testant, else it would have been taken.

The witnesses who testified that they got their tickets from Towues
could not read, and knew nothing but what Townes told them.

LANGSTON VS. VENABLE.

489

So we have simply this summary of facts : That Townes, an ignorant
colored man who could not read, issued 150 tickets without any knowl-
edge as to what was printed on them, and 150 colored men who could
not read voted them without knowing v\hat tickets they were voting
except what Townes, equally as ignorant as themselves, told them.
Upon this statement it is proposed to reject the returns from this pre-
cinct arid " readjust" them by counting all these votes and many more for
the contestant.

What a travesty upon justice !

The sworn declarations of the three judges, two clerks, and two
Federal supervisors are to be set aside as false, and these officers
branded as liars, perjurers, and ballot-box staffers upon the testimony
of Townes.

We can not believe the House of representatives will perpetrate
what we conceive to be so great a wrong.

But pursuing our examination of this precinct still further, we say
there is no evidence that these voters who got tickets from Townes
(assuming that they were Langston tickets) voted them. No one saw
the tickets they actually voted, as they were handed to the judge at
the ballot-box, and we have only their simple statement that they
handed the ballots they received from Townes to the judge. There is
no way to contradict this statement, and therefore how dangerous it
is to receive such testimony to destroy the returns of public officers, in
favor of which the law raises the strongest presumption. Each one of
these voters stands upon his own unsupported statement, while every
one of them is contradicted by all the officers of the election, so far as
their testimony tends to falsify the return.

In this icard the testimony of the contestant's witnesses shows that there
are at least 220 white Democratic voters and not less than 20 straight
colored Democratic voters. The evidence further shoics that the full Dem-
ocratic vote was out at the election in question. If it is determined to
give Langston 377 votes upon such testimony as that of Brown and
Good wy n, a modicum of justice at least would require that the Demo-
cratic vote of 240 (220+20) should be given to Yenable.

Then up to this point the vote would stand as follows :

Venable.

Langston.

Vote as returned. ...... . ........ ...............

13,298

12,657

Add vote at Poach and Ross . . ...... .. ...... ....

6i)

141

Deduct returned vote Sixth ward, Petersburg!!..........

13, 367
352

12, 798
139

Add "reformed" vote, Sixth ward, Petersburgh ..........

13, 015
240

12, 659
377

13, 255

13, 036

Majority for Venable over Langston, 219 votes.

While still insisting that the effort to impeach the returned vote in
this ward has utterly failed, yet if it is determined to discard the re-
turns, the vote should at least be so "readjusted" as to give the contes-
tee the well-defined Democratic vote which was cast for him.

490 LANGSTON VS. VENABLE.

THIRD WARD OF PETERSBURG!!.

The vote as returned from this precinct was as follows :

"Votes.

Venable 518

Laugston 174

Arnold... . 105

Total 797

The majority of the committee propose to reject these returns as a
whole and so u readjust" them, as to give Laugstou 284 votes and Vena-
ble none.

Against this proposition we enter a protest far stronger than even in
the case of the Sixth ward.

This ward extends through the most populous, business, and resi-
dence portion of the city. It is largely a white ward and has for years
been known as a reliable Democratic ward. In 1886 it elected a Dem-
ocratic council ticket by a large majority. In the spring of 1888, Col-
lier, Democrat, received 484 votes; Boiling, Republican, received 305
votes, in the mayoralty election. In neither of these elections was there
even a suspicion of fraud. It is the place of residence of the great body
of white Republicans, who were, according to the evidence, almost
unanimously supporters of Arnold.

The majority of the committee in their report base their conclusions
upon the testimony of Matt N. Lewis and W. J. Smith.

Lewis testifies he kept a record at the polls of tnis ward of the votes
cast for Laugston; that he stood right at the entrance where the col-
ored voters approached the ballot box, and where he could see the bal-
lots given to the judge who received the ballots and deposited them in
the box; that he was there from sunrise until sunset, only leaving once
for about thirty minutes; that he saw and read the ballot of every
voter whu.se name he checked on his book and he saw each ballot he
checked deposited in the ballot-box; that he entered himself in his
book, in his own handwriting, all the names with the exception of a few
that were entered during the thirty minutes he was absent from the
polls; that he read each ballot caretully. He gives the names of 286
voters as having been recorded by him and as having voted for Lang-
st<m except two. He says 16 of the 286 were entered during his ab-
sence by Smith.

This is a full summary of this man's testimony.

Before introducing the evidence thoroughly contradicting the state-
ments of this witness it may be well to indicate the character of man
he is:

In the hustings court of the city of Petersburg, October 21, 1887, C. H. Cuthbert,
foreman, W. H. Harrison, J. B. Brady, J. P. Hoag, John Berry, and Joliu H. Bell were
sworn as grand jurors for the body of this city, and having received their charge re-
tired to their room, and after sometime spent therein returned into the court and
presented an indictment against Matt N. Lewis" a true bill" which is as follows,
viz:

STATE OF VIRGINIA,

City of Petersburg, to wit :

In the hustings court of the said city, the jurors of the Common wealth of Virginia,
in and for the body of the city of Petersburg, and now attending the said court,
upon their oath present, that on the 30th day of August, in the year 1887, in said city,
T. J. Jarratt was the legally qualified mayor of said city, and as su:li : justice of the
peace thereof, and 1 that Matt N. Le\vis, on said day, in said year, in said city, being an
evil disposed person, and unjustly and unlawfully intending to defame, asperse, scan-

LANGSTON VS. VENABLE. 491

dalize, and vilify the character of the said T. J. Jarratt, and to insinuate, and cause it
to be believed that the said T. J. Jarratt had been guilty of gross misconduct in his
saitl office of mayor of said city aud justice of the peace as aforesaid, did unlawfully,
maliciously, wickedly, and scandalously compose, write, print, aud publish, and did
cause aud procure to be composed, written, printed, and published in a certain public
newspaper, entitled the "Daily Index Appeal," which newspaper was then and there
circulated in said city, a certain false, wicked, mischievous, and scandalous libel of
and concerning the said T. J. Jarratt, and of and concerning his official conduct in
his said office of mayor of said city and justice of the peace as aforesaid, aud of and
concerning the administration of ptiblic justice in the mayor's court of said city
whilst he, the said T. J. Jarratt, was presiding and sitting therein as mayor of said
city and justice of the peace as aforesaid, which wicked, mischievous, and scandalous
libel is in the words and figures as follows, to wit :

" COMMUNICATED.

"At a meeting of colored men, called on Monday evening, August 29, 1887, the
following resolutions were offered aud adopted :

" Whereas on Tuesday, August 23, 1887, an unsophisticated colored man (Ed. Ridley),
in an unguarded moment, assaulted a lady who had first assaulted him, he was set
upon by a crowd of white men and most brutally and unmercifully beaten, thereby
taking the law in their own hands;

"Whereas, although he (Ed. Ridley) applied to the proper authorities for warrants
for the punishment of his assailant, he was denied that right, which is common
property of all American citizens, 'the right of protection by law,' and instead of be-
ing the complainant he was forced to be the defendant before the laws (he, said
Matt N. Lewis, meaning one Fed Ridley, sometimes called Edward Ridley, who on
the 25th day of August, in said year, was convicted before him, said T. J. Jarratt,
mayor of said city aud justice of the peace as aforesaid, of having madq an assault
in aud upon oi>e Louisa F. De Jarnette, in said city, on said 23d day of August, in
said year) ;

" Whereas the mayor of our city, the proper person from whom all citizens expect
even-handed and equal justice, has seen fit (yielding to a false and mean clamor of
supposed public sentiment) to impose a most extortional fine and unprecedented sen-
tence upon this poor colored man;

" Whereas the mayor has had numerous cases of the same nature and kind, i. e., the
case of Mr. W. I. Jarratt, vs. his cook, the case of W. E. Wyatt vs. a colored woman,

the case of Clarke vs. a colored girl in the employ of his father (T. Jeff. Clarke),

and these cases were more aggravated than that of Ridley's, and the mayor never has
imposed further than a small fine in either case: Therefore,

"Itesolred, That we condemn his sentence in this case of Ridley as that of a preju-
dicial officer, a bias judge, and unqualified chief magistrate, and further character-
ize the whole affair as an outrage and disgrace to the civilization of the 19th century,
and a travesty upon justice.

" MATT N. LEWIS,
" W. N. SMITH,
" H. C. KENNEDY,

"Committee."

"an. 30-lt "

(he, said Matt N. Lewis, meaning that he, said T. J. Jarratt, was the mayor of said
city referred to in said libel, and that his, f-aid T. J. Jarratt's, sentence in said case
of said Ridley, convicted as aforesaid, was the official act of a prejudiced, biased, and
and unqualified mayor of said city, and as such a justice of the peace as aforesaid)
to the great damage aud infamy of the said T. J. Jarratt, to the great scandal and
dishonor of public justice, and against the peace and dignity of the Commonwealth
of Virginia.

Ujion the testimony of T. J. Jarratt, D. L. Selke, aud F. R. Russell, T. C. Johnson,
W H. Jones, T. G. Watkius, sworn in court and sent to the grand jury to give evi-
dence.

JOHN C. ARMISTEAD, C.

And in said court Monday, January 30, 1888.

The Commonwealth of Va., prosecuting, against Matt N. Lewis, defendant. Ind'ct,

misd'm'r.

This day came as well the attorney for the Commonwealth as the defendant in
own proper person, and thereupon said defendant pleaded guilty, and a jury, to wit,
G. W. 15;iin, J. W. Wheary,E. M. Allen, C. H. Marshall, J. T. Ashby, R. F. Hobbs, C. J.

492 LANGSTON VS. VENABLR.

Walthall. R. T. Coghill, A. J. Clements, E. W. Sydnor, E. J. Armstrong, andJ. T. Gar-
re.tr, was selected by ballot and duly sworn by consent of the defendant, iind having
heard the evidence of witnesses and arguments of counsel, returned their verdict as
follows: We, the jury find the accused guilty, and make the line twenty-live dollars.
Therefore it is considered by the court that the Commonwealth recover against the
said defendant said fine of $25 and the costs of his own prosecution.

Copies.
Teste :

Ro. GILHAM, Clerk.
(Record 989-991.)

This high-handed act upon the part of this man is not calculated to
commend .him to favorable consideration. The mayor of the city of
Petersburg!!, who was a Republican, was libeled by this would-be exem-
plar of public morals because he refused to issue a warrant for the ar-
rest of a white lady, for "assaulting an unsophisticated colored man"
who in "an unguarded moment" had committed an assault upon her.

But now to the contradictions of this witness.

German H. Gill, Federal Supervisor.

22d. Question. Do you know a colored man called Matt N. Lewis ? A. Yes.

23d. Question. Did you see him on the 6th of November, 1888; and if so. state
where he was, what he was doing, and how long he staid at the 3d ward polls on
that day? Ans. I saw him. He stood just, opposite the door, about 4 feet distant.
He seemed to be keeping a tally of the colored. He was there about two-thirds of
the time. He was away several times during the day, making in all, 1 shouldjudge,
about one-third of the day that he was absent.

24th. Question. It has been testified by the said Lewis in this case that he was
there, i. e., immediately in front of the 3d ward ballot-box, Irom sunrise until sunset,
only leaving once about thirty minutes. Please state whether or not the said testi-
mony is true, and your reasons for your answer? Ans. It is not. My reason for so
stating is that another took his place on more than one occasion that day, and I saw
him several times walkaway from his position 20 or 30 feet, and would remain away
for several minutes conversing with parties around the polls.

25th. Question. Were the persons who kept his tally-book in his absence under his
immediate superintendence and direction when they entered the names of voters upou
their books ? Ans. No, sir.

26th. Question. There have been filed in the record as a part of the testimony of
the said Lewis four books purporting to be the tally -books which he kept on Novem-
ber 6th, 18H8, at the 3d ward polls, containing the names of more than 200 voters whose
ballots he swore were given for Jno. M. Laugston. In answer to the following ques-
tion asked the said Lewis on hie direct examination, to wit, " When and under what
circumstances did you particularly observe the ballot of each colored voter before
recording his name in said book," the said Lewis replied: "I read his ballot care-
fully, and after I had seen the judge to whom he handed his hallot deposit it in the
ballot-box I then placed his name on ray book/' Please state whether this reply of
the said Lewis is true, and give your reasons. Ans. It can not be true. For the reasons
that unless the ballots were handed by the voters to Lewis he could not read them
carefully, which was not done. The voters coming up in line handed their ballots to
the judge without passing them to Lewis for examination. A large number of them
he could not have read at all, the parties not showing or holding them to him for
that purpose ; at least one-half or more voting folded or closed ballots.

27th. Question. Did you see any voter hold his ballot before Lewis for examina-
tion / Ans. No ; not directly to Lewis. I saw several hold their ballots aho\e their
heads unfolded, and it would have been impossible for Lewis to see what names were
on the ballots, unless he had remarkable eye-sight. I was as near to them as he with
glasses on and I could not read them.

28th. Question. Would your answers to the 26th and 27th questions apply equally
to the parties who kept the books in the absence of Lewis? Ans. They would.

29th. Question . Do you know the fact that it was suggested at the time by parties
about the polls that the Langston tally-keepers were recording votes cast for one of
the other candidates? Ans. Yes; I heard the report and heard parties joking Lewis
and others about it.

30th. Question. Were there any ballots distributed at the 3d ward polls bearing the
Republican Presidential electors with the name of E. C. Veuable for Congress? Ans.
Yes; there were ballots headed "Regular Republican ticket" which had E. C. Venable'a
name on them for Congress ; and I believe, to the best of my knowledge, that a num-
ber of men entered by Lewis upon his books voted the said ticket.

LANGSTON VS. VENABLE. 493

31st. Question. Were there any ballots deposited in the box wherein the names of
the Democratic candidates were written by hand; and state why such ballots were
so written? Ans. Yes; I believe that these ballots were so written, because the par-
ties voting them wished to conceal the fact that they voted for E. C. Venable.

(Record 987.)

He contradicts Lewis in his statement that he (Lewis) was at the polls
all the time. He contradicts him in his statement that he examined the
ballots as the voters approached the polls and shows that it was impos-
sible for him read them. He says Lewis was at the polls about two-
thirds of the day only.

Is this man of high character or Lewis to be believed? We prefer
to rely upon the testimony of Gill.

Another witness contradicts Lewis.

James M. Young.

1st. Question. (By counsel for contestee.) What is your age, occupation, and resi-

mce ? Ans. I am 29 years old ; my occupation, police officer for the city of Peters-
urg; iny residence, corner Sycamore and Oak streets, 3d ward.

yd. Question. Where were you on election day, November 6th, 1888? Aus. I was at
the 3d ward precinct.

3d. Question. Were you on duty there that day ? Ans. I was.

4th. Question. What time did you get to the polls on that day and how long did you
stay there ? Ans. Well, sir, I think it was after I had eaten breakfast, about 7 or 8
o'clock. I stayed there all day.

r>th. Question. During -the time you were at the polls did you see M. N. Lewis, a
witness for the contestant in this case? Ans. Yes, sir.

(5th. Question. The said Lewis has testified upon his direct examination as follows:
"1 stood right at the entrance where the colored voters approached the ballot-box,
where I could see the ballots given by the voter to the judge, who received the bal-
lots and deposited them in the box. I was there from sunrise until sunset, only leav-
ing once about thirty minutes." Please consider this statement carefully and say
if you know whether it is true, and give your reasons. Ans He is mistaken. He
left there, sir, two or three times during the day. I mean the door where they were
voting. I missed him away from there. I noticed that he was gone. I noticed him
on account of his being around there and taking an active part in the canvass and
election. (Record, 970, 971.)

George W. Dunn, another witness, contradicts Lewis in the most em-
phatic manner.

1st. Question. What is your age, occupation, and residence? Ans. Age, 36; occu-
pation, police officer of the city of Petersburg; residence, Hotel Gary, Tabb st., 3d
ward.

yd. Question. Where were you on the 6th day of November, 1888, election day?
Aus. At the 3d ward voting precinct.

3d. Question. Were you on duty during that day? Aus. I was.

4th. Question. At what time did you go to the 3d ward polls and how long did you
stay there? Ans. I went there at sunrise and remained the whole day, with the ex-
ception of about three-quarters of an hour.

5th. Question. During the time that you were present at 3d ward polls did you see
one M. N. Lewis, a witness for the contestant in this case? Aus. I did.

6th. Question. The said Lewis has testified upon his direct examination in this case
as follows : "I stood right at the entrance where the colored voters approached the
ballot-box (meaning the ballot-box of 3d ward polls), whore I could see the ballots
given by the voter to the judge who received the ballots and deposited them in the
box. I was there from sunrise until sunset, only leaving once about thirty minutes."
Please consider this answer carefully and say if you know whether the same is true,
and give your reasons for your answer. Ans. It is not true. Mr. Lewis had a position
that he could see the ballot about an hour and a half. He was obstructing the voters, and
I removed him from his position. He then occupied a place on an old stand, about ten
feet from the judge of election. He remained in that position about half an hour. He then
left the precinct. I didn't see him any more until about twelve o'clock. He was coming
from towards 6th ward precinct. He then disappeared again and returned late in the
evening.

7th. Question. There have been filed in the record as a part of the testimony of
the said Lewis four books purporting to be the tally-books which he kept on Novem-
ber 6th, 1888, at the 3d ward polls, containing the names of more than 200 voters,
\vJio80 ballots he swore were given for John M. Laugstou. lu answer to the follow*

494 LANGSTON VS. VENABLE.

ing question asked the said Lewis on his direct examination, to wit: "When, and
under what circumstances, <!id yon particularly observe the ballot of each colored
voter before recording his name in said books ?"" the said Lewis replied : " I read his
ballot carefully, and after I had seen the judge to whom he handed his ballot deposit
it in the ballot-box I then placed his name on my book." Please state whether this re-
ply of the said Lewis is true, and give your reasons. Ans. It is not true. All the colored
voters were in a line separate from the whites. They had several parties giving them tick-
ets, and it was impossible for any one to tell how they were voting. The colored tally-book
of '3d ward, on Mr. Lanffston's side was kepi by two or three different parties, and the posi-
tion that they held they could not have told one ticket from another.

(NOTE. J. M. Taylor, esq., counsel for the contestee, appeared and asked to be
entered as counsel of record.)

8th. Question. Please state whether or not you have attended 3d ward polls at other
elections prior to November 6th, 1888, and, if so, how many. Ans. I have attended
two others prior to the Presidential election.

9th. Question. Is it the custom at the 3d ward polls for the colored voters to vote
open or folded ballots? Aus. They have been voting to suit themselves in the last
two or three elections, and they would allow no one to see their tickets; and the ma-
jority of them would allow 110 one to see their tickets.

10th. Question. Do yon mean to say that on November 6th, 1888, the majority of the
colored voters would allow no one to see their tickets? Ans. I do. They had two
or three ticket-holders, and they were giving out different kinds of tickets. After
tney got in line the majority of them refused to show their tickets. They did not
want any one to know how they voted; for Langston, Veuable, or Arnold.

IMh. Question. Did you see any considerable number of colored voters show their tickets
to the said Lmvis, or to one W. J. Smith, or to one 8. It. McE. Jones, who, as the said Lewis
testified, kept his tally-books in his absence f Ans. I did not.

12th. Question. Would you have known such a fact if it had existed? Ans. I think I
should.

13th. Question. Were there any tickets with the name of E. W. Arnold for Congress
distributed to the colored voters at 3d ward polls November 6th, 1888? Ans. There
was.

14th. Question. Were there any tickets bearing the Republican Presidential electors
with the name of E. C. Venable for Congress distributed to the colored voters at 3d
ward polls November 6th, 1888? Ans. There were a great many distributed of that
kind.

15th. Question. Were there any tickets written by hand bearing the regular Demo-
cratic nominees distributed to the colored voters at 3d ward polls November 6th,
1888 1 Ans. I didn't see any.

16th. Question. Was it possible for any person standing outside of the polls at any
place to say how the colored voters cast their ballots, and give your reasons? Ans.
It was not. No one stood near enough to see the ballot, except the judge, and the
greater portion of them were folded, and it was impossible for him to tell how they
were voting.

17th. Question. It has been testified by the said Lewis that he knows that more than
270 ballots were cast for John M. Langston at the 3d ward polls November 6th, 1888,
because that number of names appear on the four books already mentioned, kept by
himself and W. J. Smith and S. B. McE. Jones. Please state whether you know the
said statement of Lewis to be true or untrue, and give your reasons for your answer.
Ans. It is untrue. It was impossible for Lewis, Smith, and Jones to tell how a great
portion of the colored voters voted. No man at 3d ward precinct or set of men could
have told how any twenty-five or thirty men had voted, after they got in line with
two or three diiferent kinds of tickets in their hands. I saw that no one interfered
with them, as I was sent there for the purpose of keeping order and not let the voters
be interfered with. I carried out the order the whole day, with the exception of
three-quarters of an hour. (Record, 965, 966.)

We ask that this testimony be carefully read.

Still another witness contradicts Lewis. George Fayerman, a prom-
inent Eepublican, a former member of the legislature, a canvasser for
honorables James H. Platt, W. H. Stowell, Joseph Jorgensen, J D.

Brady, and - Gaines, formerly Republican members of Congress

from this district.

llth. Question. Are you familiar with the Republican voters of 3d ward, in which
you live? Ans. I am, sir.

l'2th. Question. Please state whether or not you were present at the 3d ward
polls on the 6th of November, 1888; and, if so, how long were you there and in what
capacity ? Ans. I was there nearly the whole day, not being absent more than half
an hour at any time. I held the colored voters' book ; checked their names when they

LANGSTON VS. VENABLE. 495

voted. When riot otherwise engaged, I would be distributing tickets or influencing
men to either vote for Arnold or Venable.

13th. Question. The said Matt N. Lewis mentioned above has testified that on the
6th of November, 1888, he stood immediately in front of the 3d ward ballot-box from
sunrise until sunset, only leaving about thirty minutes during the day. Please state
whether or not you know this testimony to be true or false. Ans. Lewis was there
for about three-quarters of the day, and when there he sat on a box in front of the
judges with his back to the voters.

1 1th. Question. Please state whether or not it is the custom in 3d ward among the
Republican voters to vote folded o; open ballots. Aus. The custom is to vote folded
ballots.

15th. Question. Was the election of the 6th of November, 1888, any exception to
this rule ? Ans. It was partially. A few of the men voted open ballots, between one-
eighth and one-tenth of the colored voters. A great many of the colored men were
very particular in guarding their ballots so that no one could see how they voted.

16th. Question. Did you see any of the supporters of Langston exhibit their tickets
to the said Lewis before voting? Ans. No, not one; they had uot the means of
doing it from the position that Lewis occupied.

l?th. Question. If it had been the general rule for the supporters of Laugston to
exhibit their ballots to Lewis in order that he might record their names in a book,
would you or would you not have been cognizant of such a custom ? Ans. Certainly
1 would hare known. The only way Lewis could have judged ivould have teen by the men
who voted; he might have surmised; still I know a great many new voters of the 3d ward
who were, crying Langston that either voted for Arnold or Venable.

18th. Question. Do you or not know the fact that at the time it was suggested to the Langs*
ton I ally -keepers that they were recording on their books as voting for Langston men who
in reality had cast their ballots for one of the other candidates ?

Aus. Yes, sir ; several colored men have come to me at the poll and stated that they
were tired of this nonsense of colored women and ministers interfering in politics;
that they were never going to vote against General Mahone and his candidate ; there-
fore they votfl for Mr. Arnold in preference to Mr. Langston ; and yet these very men
were crying out Laugston and "What's the matter with Langstoii," in every corner
of the streets.

19th. Question. During the time or times when the said Lewis was absent from the
3d ward polls he has testified that one W. J. Smith and one S. B. Mac E. Jones as-
sumed his position and kept his tally-books. Please state whether they enjoyed any
other or better opportunities for recording the supporters of Langston, and whether
ot not the supporters of Langston showed them their ballots before handing them to
the judge.

ADS. I did see Wm. J. Smith occupying the position where Lewis was, but I never
saw Jones. Smith had no greater facility of seeing the ballot than Lewis, and I
never saw any one show either Lewis or Smith a ballot.

20th. Question. There have been filed in this record as a part of the testimony of the
said Lewis four books purporting to be the tally-books which he kept on the 6th
of November, 1888, which he kept at the 3d ward polls, containing the names of more
than 200 voters whose ballots he swore were given for John M. Langston. In an-
swer to the following question asked the said Lewis on his direct examination, to wit,
" When, and under what circumstances did you particularly observe the ballot of
each colored voter before recording his name in said books?" the said Lewis replied,
" I read his ballot carefully, and after I had seen the judge to whom he handed his ballot
deposit it in the ballot-box, I then placed his name on my book." Please state whether
or not this reply of the said Lewis is true, and give your reasons. Ans. It may be true
so far as the one-eighth or one-tenth of the men who voted an open ticket, provided Lewis was
prtsent and was paying some attention. Hut with regard to the others 'tis not true, for he
had not the means of knowing how they voted.

21st. Question. From your experience in such matters, is it possible outside of the
polls to keep an accurate tally of the votes cast for any particular candidate in an
election conducted under the laws which regulated the election of November 6th,
1888, and give your reasons? Ans. Not possible, except four men unite in concert in
keeping an account and paying particular attention to the voters in giving and depos-
it ing their tickets. On the 6th of November Langston's friends had so many ticket-
holdcrs and so many men otherwise engaged that they were in conflict with each
oilier, and some of these ticket-holders, whilst pretending to be for Langston, were dis-
tributing tickets for Arnold ; therefore no proper count could be kept.

German H. Gill, Federal supervisor (Record, 986) :

12th. Question. Were you present after the close of the polls and during the count
and canvass of the vote ? Ans. I was present during the count and canvass of the
vote, and from the time the polls closed I did not leave until the count and canvass

496 LANGSTON VS. VENABLE.

wns finished or completed, and the tally-sheets, &c., with the ballots were placed in
the ballot-box and sealed by the judge.

13th. Question. How did the number of ballots found in the box correspond with
the number of names on the poll-books? Ans. They corresponded exactly. There
were 797 names registered by the clerks, and the number of ballots were 797 found in
the box.

14th. Question. Please describe the manner in which the ballots were canvassed
and counted, and say by whom were they canvassed and counted, and, refreshing
your memory from the poll-book aheady filed, say what was the result.

(NOTE. Counsel for contestant now asked for an adjournment of the taking of the
above deposition until 4 p. m. of this day, as he has a pressing engagement which it
is impossible for him to neglect, especially, too, as there are now only three of Lang-
ston's counsel in the city, and that the other two counsel are now engaged in taking
depositions in this contested-election case in other parts of the city under notice given
by the contestee through his counsel.)

Ans. The ballot-box was emptied by William Crichton, judge, on the table. I saw
that nothing was left in the box. The ballots were then counted by the judgos,
William Crichtou, John T. Williams, Virginius L. Wedclell, and myself, I claiming
the right as United States supervisor for that precinct to count the same. The num-
ber of ballots taken from the box were 797. The ballots for each candidate were
then separated and counted for each candidate. The result was : Venable, 518 ; Ar-
nold, 105 ; Langston, 174. The ballots were separated and counted by three judges
already mentioned and myself. I was present during the entire count and canvass
of the vote.

15th. Question. Did you keep any record yourself during the day ; and if you did,
state in what manner you kept it, and how its result accorded with the number of
ballots found in the box ? Ans. I kept a tally of the white and colored vote during
the day upon a patent tally-sheet, which I received as an advertisement, the parties
wishing to sell these sheets, and having the sheet I used it for the purpose of keeping
a tally that day. My count upon this sheet summed up 5 less than the poll-book,
which difference was due to the fact that I failed to make the cross-mark in the tally,
thereby beginning the next tally, losing one each time I made the mistake.

16th. Question. From your experience in such matters, is it possible outside of the
polls to keep with accuracy a record of the number of votes cast for any particular
candidate; and give your reasons? Ans. From my experience it is impossible to tell
by any means outside of the polls how many votes are cast for any particular candi-
date or party. My reason for so stating is that I have frequently tried to do so at
the same polling place, having an accurate copy of the registration book made my-
self while a registrar, and have never yet been able to tell at the close of the polls
which party or candidate had the most ballots cast for them, or estimate how many
had been cast for any particular candidate. I have failed to come within 150 votes
between the two parties, Republican and Democrat, and found it impossible to tell
anything about the number of ballots for any one candidate. The fact of the ballots,
as a general thing, being folded by the voters, in my opinion, makes it impossible for
a man outside of the polls to say how many ballots have been cast for any particular
candidate.

17th. Question. Was the election of the 6th of November, 1888, any exception to
the general rule with regard to the voting of folded ballots ? Ans. No, sir.

l&th. Question. Was Ihere any fraud or sharp practice of any kind 2)racticed in the
countiny, canvassing, or returning of the vote of 3d ward polls on November 6th, 1888?
Ans. I had every opportunity to see and hear everything that icas done or said in the count
and canvass and return of the said vote. I saw nothing of fraud or sharp practice. If I
had seen any such, fraud or sharp practice I should, as United States supervisor, have
stopped it at once.

19th. Question. If there had been any fraud at the 3d ward polls, would you not have
been able to see and discover it ? Ans. Yes.

Could evidence be more direct I

This concludes the testimony taken as to this precinct. The case of
the contestant stands upon the testimony of Lewis alone (for if it falls
Smith's testimony must fall), which is overwhelmingly rebutted and
contradicted by no less than four witnesses.

We have, then, the sworn returns of three judges and two clerks and
one Federal supervisor and the testimony of four witnesses on the one
hand and the uncorroborated and contradicted testimony of one witness
(Lewis) on the other.

The majority of the committee in their report seem to regard the tes-
timony of the contestant's witnesses as weak, and yet they treat it as

LANGSTON VS. VENABLE. 497

conclusive proof of fraud, ballot-box stuffing, etc., and declare that the
contestee has no right to complain, as he delayed the completion of the
examination of these witnesses to such an extent as to prevent the tak-
ing of further evidence. In other words, the majority of the committee
decide a great and important question upon the assumption that the
contestant might have proved his case if be had not been interfered with
by the contestee ; they decide upo^i what might have been in the record,
not upon what is in it. With all due deference we submit that this is
hardly in the line of legal procedure and even-handed justice.

But was the contestant in fact prevented from taking other testimony
by the acts of the contestee? The majority say that he was, by reason
of the long cross examination of his witnesses. Well, when it is re-
membered that the contestant was relying upon the testimony of these
witnesses to at least lay the foundation for the rejection of a poll at
which more than 700 votes were cast and a large plurality given to the
contestee, the exercise of common judgment would have taught him
that their testimony would be tested by the most rigid cross-examination,
and if he did not prepare for such an emergency he has himself only to
blame. It nowhere appears in evidence that the contestant was unable
to procure legal assistance or uotarial;service in the takingof all the evi-
dence he desired in the forty days allowed by law, but it appears that
he had many attorneys and that much time was unoccupied by him,
which could have been utilized if he had been anxious to do so. It is also
charged in a letter written to him by the contestee (Record, 634) that he
was in fact ?bsent from the State of Virginia on other business a large
portion of the forty days allowed him for the taking of testimony, and
this charge is not denied by him in his reply to said letter. ( Kecord, C36.)

But be all this as it may, surely we can never agree to set a precedent
by which a case can be determined by what a party might have done
"if wind and tide had been in his favor," but which he has not done.

The House of Representatives may in a proper case grant additional
time to take testimony, but it will never, until all principles governing
judicial procedure and the hearing and determination of causes are set
aside and utterly disregarded, strengthen and bolster up a weak and
feeble attempt to annul the solemn act of election officials upon the
mere assertion of a party that he could, if he had been favored with
more time, have proved his case.

Concluding as to this precinct, we insist that the returns are uuim-
peached and must stand.

DELAY OF JUDGES NOT ENOUGH VOTING PLACES.

The contestant charges that many of his voters were hindered from
voting by the delay of the judges in receiving ballots. The majority of
the committee, on page 28 of their report, say that it appears 121 of
Langston's voters were prevented from casting their ballots by the delay
of the judges in Sixth ward.

There is not the slightest evidence whatever in our opinion to sustain
this charge. At this precinct 651 votes were cast, or about one vote
every minute. This was rapid voting when it is considered that the
registration books and disfranchised lists had to be examined. There
was no delay by challenges, as there was not a voter challenged during
the day. The contestant claims that his voters were discriminated
against, as the judges alternated by receivingfirst theballotof a colored
man and then the ballot of a white man ; he thinks two colored voters
should have voted to every white voter, and the majority of the commit-
tee seem to agree with him.
H. Mis. 137 32

498 LANGSTON VS. VENABLE.

From this position we dissent. We think a white man has as much
right to tender his ballot and have it received as a colored man and
vice versa, and that a man because his skin is white should not be re-
quired to wait at the polls until two other men had deposited their bal-
lots because their skin is black.

If the voting facilities in the sixth ward were inadequate, neither the
contestee nor his party is responsible, as will appear from the following
testimony:

B. D. Akers:

77. Q. How many voting precincts were there in sixth ward at the time of the
November, 1888, election, and how many had there been prior to that time f A. Only
one.

78. Q. What party was in power in the city council of the city of Petersburg on
February 1st, 1888? A. Republican.

79. Q. Is it or not a fact that at that date the Republican members of said city
council were in the majority f A. It is a fact.

80. Q. Were or not the four members of the said city council from said sixth ward
all Republicans at that time? A. Yes, sir.

81. Q. I tind from the proceedings of the common council of the city of Peters-
burg, held February 1st, 18^8, that the following members of that council voted to
establish another voting place in sixth ward in addition to the one at which the
election was held November 6th, 1888: Blake, Enniss, W. T. Hargrave, Epes Har-
grave, Johns, Newcomb, Parharu, Thweatt, Waite, and Goodwyn. Please state
whether these thirteen persons whose names I have called were then and are now
Republicans or Democrats? A. They were then aud are now Republicans.

82. Q. I fi id from an examination of the proceedings of said city council that on
March 20th, 1888, a special meeting of said council was held, in pursuance of a
request therefor made by Epes Hargrave, Harrison, Waite, and eight others, and
that at that meeting Mr. Enniss, one of the Republican members from sixth ward,
moved a suspension of the rules in order that he might offer an ordinance to re-
peal the ordinance passed February 1st, 1888, dividing sixth ward into two voting
precincts. I find, too, from the same proceedings that there were present at this
special meeting, held March ilOth, 1888, the following members of said council: E.
A. Goodwyn, president, and Messrs. Blake, Ennis, Farley, Gilliam, W. T. Hargrave,
Epes Hargrave, Johns, Newcomb, Osborne, Parham, Seward, Thweatt, Waite, Wil-
son, and Zimmer. I find further that the rules were suspended, and that the ordi-
nance dividing sixth ward into two voting precincts was repealed. Please state
what party was, on March the 20th, 1888, in the majority in the city council of
Petersburg, and what were then and what or now the politics of the members of
said council whose names I have last mentioned above, which names the notary will
read over to yon. A. The Republicans were in power. (The notary here read the
names:) E. A. Goodwyn, president, Republican ; Blake, Republican; Enniss, Repub-
lican; Farley, Republican; Gilliam, Democrat; W. T. Hargrave, Republican; Epes
Hargrave, Republican; Johns, Republican ; Newcomb, Republican; Osborne, Demo-
crat ; Parham. Republican; Seward, Democrat; Thweatt, Republican; Waite,
Republican; Wilson, Republican; and Zimmer, Democrat.

83. Q. Then what party, according to this record, is responsible for the fact that
the ordinance passed Feb'y the 1st, 1888, establishing two voting precincts for sixth
ward, was repealed March the 20th, 1888, at a special meeting called for that pur-
pose, the Democratic or the Republican party in said city council? A. The Repub-
lican.

84. Q. Have you examined a duly-certified copy of the said council proceedings
showing the facts as above set forth, aud if you have in your hand such a certified
copy, will you please hand it to the notary to be filed as an exhibit with this your
deposition?

(NOTE. Here counsel for the contestee handed the witness the certified copy of
the said proceedings, which the witness carefully examined.)

A. Yes, sir, I have examined it.

(NOTE. And here the witness handed the notary a certified copy of said proceed-
ing, which is marked " B D A, Exhibit A," and asked that the same be tiled as an
exhibit with this his deposition, which is accordingly done. Here the notary marked
the same as above indicated.)

(B. D. A.) EXHIBIT A.
STATE OF VIRGINIA:

At a regular meeting of the common council of the city of Petersburg, held in the
council chamber Feb'y 1st, 1888 ; present Capt. E. A. Goodwyn, president, aud Messrs.
JBagwell, Blake, Davis, Enniss, Gilliam, Hargrave, W. T., ' Hargrave, Epps, Harris,

LANGSTON VS VENABLE. 499

Jolina, Newcomb, Osborne, Markham, Smith, Seward, Thweatt, Van Anken, Wheary,
and Wilson.

The ordinance, laid over from the last meeting of the council, entitled "An ordi-
nance to amend and re-enact sec. 7 of chapter 54, printed ordinances of the city of
Petersburgh," was taken up and passed by the following vote :

Ayes: Messrs. Blake, Enniss, Hargrave, W. T., Hargrave, Epps, Harris, Johns,
Newcomb, Parkham, Thweatt, Van Auken, Waite, Wilson, and Goodwyn 13.

Nays: Bagwell, Davis, Gilliam, Osborne, Smith, Seward, and Wheary 7.

Ordinance 1st. Be it ordained by the common council of the city of Petersburg,
that section 7 of chapter f>4, printed ordinances of the city of Petersburg, be so
amended and re-enacted as to read as follows :

That 6th ward of the city be divided into two precincts. Section 7. That of said
ward lying north of a line beginning at the City Hospital and running east to the
intersection of West street and Lee avenue; thence east along the middle of Lee
avenue to Jones street; thence south along the middle of Jones street to Cedar;
thence east along the center of Cedar street to Halifax ; thence south along: the middle
of Halifax to Porterville street; thence east along the middle of Porterville to Hard-
ing street, be known as precinct No. 1 ; and the voting place of said precinct No. 1
shall be at and in house No. 211 Halifax street.

And that all of said ward lying south and west of said line and not included in
precinct No. 1 be known as precinct No. 2, and that the voting place for said precinct
No. 2 shall be at and in the building known as Minetree's shop, on Halifax street
near Melville.

At a special meeting of the common council of the city of Petersburg held in the
council chamber March ^Oth, 1888, present, the president, and Messrs. Blake, Enniss,
Farley, Gilliam, Hargrave, W. T., Hargrave, Epps, Harris, Johns, Newcomb, Os-
borne, Parkhatn, Seward, Thweatt, Waite, Wilson, and Zimmer.

The president explained why a special meeting of the council was called by read-
ing the following:

Hon. E. A. GOODWYN,

President of the Council:

We respectfully request that yon will call a special meeting of the common council,
say on Tuesday night, to consider some proposed amendments to the revised ordi-
nances before they shall be pnt in print.
Respect.,

E. HARGRAVE,

HARRISON WAITE (and eight others).

Mr. Ennis moved a suspension of the rules to offer an ordinance entitled "An ordi-
nance to repeal an ordinance dividing the 6th ward into two precincts." Messrs.
Gilliam and Seward excused. The rules were suspended and the ordinance read and
adopted.

Ordinance. Be it ordained that sec. 7, chapter 54 of the printed, be re-enacted so as
to repeal so much of an ordinance to amend and re-enact sec. 7, chapter 54 of printed
ordinances dividing 6th ward into two precincts, passed by the common council
Feb'y 1st, 1888, and that the same be, and is hereby, repealed.

STATE OF VIRGINIA,

City of Petersburg, to wit:

I, J. F. Mcllwaine, city auditor, and ex-officio clerk of the common council of the
city of Petersburg, in the State aforesaid, do certify that the foregoing is a true tran-
script from th records of the common council of said city.

In testimony whereof I hereto set my hand this 16th day of February, A. D. 1889.

J. F. MdLWAINE,

City Auditor and ex-officio Clerk of the Common Council of said City.

STATE OF VIRGINIA,

City of Petersburg, to wit :

I, Chas. F. Collier, mayor of the city of Petersburg, in the State aforesaid, do cer-
tify that J. F. Mcllwaine, who hath given the preceding certificate, is now, and was
at the time of giving the same, city auditor of the said city, and as such clerk of the
common council of said city and custodian of its records, duly elected and qualified ;
that his signature is genuine and his attestation is in due form.

In testimony whereof I have hereto set my hand and affixed the seal of the said
city, this 18th day of February, 1889.

[SEAL.] CHARLES F. COLLIKK,

Mayor of said City.

500 LANGSTON VS. VENABLE.

STATE OF VIRGINIA,

City of Petersburg, to vrit:

I, J. F. Mcllwaine, city auditor of the city aforesaid, in the State of Virginia, do
certify that Chas. F. Collier, whose genuine signature appears to the foregoing cer-
tificate, is now, and was at the time of signing the same, mayor of said city, duly
elected and qualified, and authorized by law to give said certificate.

In testimony whereof I hereto set my hand this 18th day of February, A. D. 1889.

J. F. Mcll.WAINE,

City Auditor and ex-officio Cleric of the Common Council of the City of Petersburg.

(NOTE. Counsel for the contestant objects to the filing of this certified copy, since
the substance of same has already been made a matter of record in question put to
the witness by counsel for the contestee.)

85. Q. Is it or not true that the 20th day of March, 1888, above mentioned, was but
about two months prior to the city election, in May, 1888! A. Yes, sir. (Record,
822, 823, 824.)

It will be observed that the city council was largely Republican ; that
on the 1st day of February, 1888, nine (all Republicans, all that were
present) voted to establish a second precinct in the 6th ward ; that on
the 20th day of March, 1888, on the motion of a Republican member, the
ordinance establishing this second precinct was repealed, and that there
were present at this meeting 12 Republicans and 4 Democrats; that
this special meeting was called at the request of Harrison Waite, chair-
man of the Republican city committee, E. Hargrave, another Republi-
can, and eight other members whose names are not given.

LEWISTON PRECINCT LUNENBURGrH COUNTY.

We come now to the last precinct assailed by the report of the
majority of the committee. Lewiston, Luueuburgh County.
The returns from this precinct gave :

Votes.

Venable 119

Langston . 48

Arnold 46

Total 213

This entire poll is rejected by the majority, and 313 votes absolutely
disfranchised, and Veuable deprived of a plurality of 73 votes.

Here is a summary of the facts :

The three judges two Democratic and one Republican appointed
by the electoral board of the county, declined to serve, the Republican
on account of ill health, one of the Democrats because he desired to go
to another precinct as a worker for his party, and the other because
being a ready penman it was desired that he should act as a clerk. It
usually being difficult to get men to act as judges, these original ap-
pointees on the day before the election arranged for others to take their
places two Democrats and one Republican and on the morning of
the election they appeared early at the polls, took the required oath,
and at sunrise opened the polls and conducted the election to the close.

A Republican Federal supervisor was appointed and acted until the
polls closed, and then being sick, he went to his home and did not re-
turn. When the ballots were counted an excess of 25 were found, and
one of the judges was blindfolded and drew out 13 Veuable. 8 Lang-
ston, and 4 Arnold ballots. The poll was held in a jury-room adjoining
and opening into the court-room.

T. F. Robertson, one of the judges, testifies that the ballot-box was
in full view of the voters; that E. O. Goodwyn was the judge who re-

LANGSTON VS. VENABLE. 501

ceived the ballots from the voters; that he saw Goodwyn deposit every
ballot he received in the ballot-box ; that when the polls closed the
ballots were taken from the box, divided among the candidates, and
counted ; that a recess was taken at dinner time, the door was locked
by Goodwyu, who put the key in his pocket, and they all returned to-
gether; that when the polls closed, the clerks said they were tired and
went out, remaining fifteen or twenty minutes, when they returned and
the canvass was commenced and concluded ; that he and Goodwyn
looked over the tickets as they were read by Bayne, the Eepublican
judge. (Record, 1095-1098.)

W. J. Bragg, the Eepublican Federal supervisor, testified that he re-
mained in the polling room all the time during the voting; that he
watched all the proceedings as far as he could ; that the election was
conducted fairly so far as he knew ; that the ballot-box was in full view
of the voters and they could see their ballots deposited in it; that the
judges took a recess for dinner, locking the door and taking the key
with them ; that the count-room and jury-room are in the second story
of the court-house and are reached by a stairway ironi the front, and
that during the recess he was watching and saw no one enter the court-
room ; that it was 20 feet from the ground and no one could have en-
tered through a window during the recess without being detected, as
the court-yard was full of people. That as he lived 4 or 5 miles from
the precinct and was sick he left for home after the polls closed and
took his bed. On cross-examination :

If there was any improper ballots put in the ballot-box I didn't find it ont. There
was no fraud practiced that I know of. I watched as well as I could, and if they
got in there I didn't find it out.

He says the jury -room was a suitable place for holding the election
and no objection was made to it. (Record, 1117-1120.)
The majority of the committee held :

(1) That the change from the court-room to the jury-room was a sus-
picious circumstance.

We do not think so. The jury-room was, in our opinion, a more suit-
able place than the large open court-room.

(2) That the change of judges was another suspicious circumstance.
We do not think so. One judge was sick, another preferred to work

for his party at another precinct, and the third preferred to act as a clerk.

(3) That the retirement of the clerks and the delay in admitting them
when they returned was another suspicious circumstance.

We do not think so. Robertson, the judge, explains that they retired
because they were tired, and no doubt wanted to rest a little before they
commenced the canvass of the vote ; that they were not absent more
than fifteen or twenty minutes, and the little delay in admitting them
when they wrapped was because the judges were engaged in separating
the ballots.

(4) That the judges were not appointed in accordance with the statute.
We agree with them upon this point, but the provision of the statute

is not mandatory, and these judges were at least de facto officers, and the
voters should not be made to suffer because of a mere irregularitys.

(5) That the excess of ballots iu the ballot-box was a badge of fraud
which, together with the above-recited circumstances, should exclude
the vote at this precinct.

From this we most earnestly dissent.

The mere fact that the number of votes returned exceeds the number of names
checked on the voting list does not in the absence of fraud or of a change in the re-
ult affect the validity of the election. (Paine, $ 599.)

502

LANGSTON VS. VENABLE.

These excessive ballots could not affect the result. How they got
into the box no one, so far as the record shows, can tell. Suppose they
were put there by one of the judges. Should that disfranchise more
than liOO voters?

There is no evidence that the Democratic vote at this precinct was
unusually large or the Republican vote unusually small. In the draw
Venable suffered more than Langston or Arnold, they losing, re-
spectively, 13, 8, and 4 votes. Langston's supporter and witness (J. W.
Smith) testified that he believed Langston received 66 votes (Record,
814, question 45) ; the return gave him 48 votes, or 18 less than his friend
and worker believed he received.

Would it not be more in consonance with justice to give Langston 18
votes more and deduct them proportionately from Venable and Arnold,
or even take all from Venable, than reject the en tire returns? Would
not that course be more equitable than depriving Veuable of the entire
advantage he had at this precinct? Could Langstou complain!

While adhering firmly to our position that the vote at this precinct
should be counted as returned, yet if it is not to stand we insist that
the contestant should not have more than his worker and witness claims
for him, or Venabie made to lose everything.

So, giving Laugstou the benefit of all that can be claimed for him,
the vote will stand as follows :

Venable.

Langston.

13, 298

!> 657

Add vote at Poach, and Ross . . .. ............ .............

141

Deduct returned vote, sixth ward, Petersburg.........

13,367
352

12, 798
139

13,015
240

12, 659
377

13,255
119

13, 036

13, 136
101

12,988
66

13, 237

13,054

Clear majority of Venable over Langston, 183 votes.

RECAPITULATION OF STATEMENTS.

First. Adding vote at Poach and Ross: Majority for Venable 569
votes.

This we believe to be in accordance with the law and the facts.

Second. "Readjusting" the vote in sixth ward of Petersburg, and
giving to Langston all he claims, and to Venable the well-known Demo-
cratic vote, which according to the testimony of Langstou's witnesses
was out in full force: Majority for Venable, 219 votes.

Third. "Readjusting," as above stated, the vote in the sixth ward of
Petersburg, and reforming the vote at Lewiston, and giving to Lang-

LANGSTON VS. VENABLE. 503

ston all that bis worker and witness claimed for him (66 votes), and de-
ducting his gain of 18 votes over the returned vote for him from Ven-
able : Majority for Venable, 183 votes.

Having conceded to the contestant far more than precedents, law, or
sound policy would allow, and giving to him everything which his
friends claim for him, except in the third ward of Petersburg, it will be
seen that the contestee has a clear, and, it appears to us, incontestable
majority of 183 votes.

As we have indicated, the majority of the committee have arrived at
a conclusion entirely different, but we submit most respectfully that
they have in every instance disregarded without reason the testimony
of contestee's witnesses, and acted upon presumptions, not facts, and
strengthened weak points in the contestant's case by drawing upon
their imaginations as to what might have been proved if the contestant
had been more active and energetic.

We submit the following resolutions in the stead of those offered by
the major ty:

Resolved, That John M. Langston was not elected a Representative
in the Fifty-first Congress from the Fourth Congressional district of
Virginia and is not entitled to a seat therein.

Resolved, That Edward C. Venable was duly elected a Representative
in the Fifty-first Congress from the Fourth Congressional district of
Virginia and is entitled to retain the seat he holds.

CHAS. T. O'FERRALL,

CHAS. F. CRISP,
L. W. MOORE,
R. P. C. WILSON,
LEVI MAISH,
JOS. H. OUTHWAITE.

THOMAS E. MILLER vs. WM. ELLIOTT.

SEVENTH SOUTH CAROLINA.

Contestant charged that by the statutes of South Carolina and the
partisan manner of executing them, many voters possessing all the con-
stitutional qualifications for voting were prevented from registering
and refused the right to vote. He also charged that the judges of elec-
tion in a number of precincts repeatedly shifted the ballot boxes for the
purpose of deceiving the voters, and causing them to deposit their bal-
lots in the wrong boxes, and that by this proceeding, as well as by bal-
lot-box stuffing and other frauds, he was deprived of a large number of
votes honestly cast for him by legal voters.

The committee find (1) that the registration and election laws of
South Carolina are unconstitutional, and their execution partisan and
illegal; (2) that the shifting of the ballot boxes being for the purpose
of deception and hence unlawful, the votes lost by it should be restored ;
and (3) that where the ballot boxes were stuffed the returns should be
rejected and the vote counted as proved to have been cast.

The minority find (1) that the registration and election laws of the
State are constitutional and reasonable, and their execution fair; (2)
that the shifting of the ballot boxes was a proper proceeding, and the
votes found in the wrong boxes could not be counted even if the evi-
dence showed satisfactorily their number and for whom they were cast;
and (3) that there being no evidence to show by whom the boxes were
stuft'ed, and the excess of ballots having been " purged "by the method
provided for in the statutes of South Carolina, the returns should be
allowed to stand. (See minority report, p. 533.)

The resolutions presented by the committee were adopted by the
House September 23, 1890, by a vote of 157 to l(ou division, the Speaker
" counting a quorum "), and Mr. Miller was sworu in the next day. The
case was not debated. (See Record, p. 10339.)

(1) Registration law unconstitutional.

The registration law of South Carolina is unconstitutional, because it
is not a reasonable regulation of the right to vote, but is, under the pre-
tense of regulation, an abridgment, subversion, and restraint of that
right. Its unreasonable or restrictive features are (1) that it does
not provide sufficient facilities for registration, and leaves to the regis-
tering officer a dangerous discretion ; (2) that it attaches the penalty of
permanent disfranchisement for failing for any cause to register for the

505

. r )0fi MILLER VS. ELLIOTT.

first election at which the citizen would be entitled to vote if registered;
(3) that it affixes a like penalty for parting with or destroying a regis-
tration certificate ; (4) that all applications for transfer or renewal of cer-
tificates must be made at the county seat of the county where the origi-
nal certificate was issued ; (5) that when the board of appeals has de-
cided against an applicant for registration, he may appeal, but must
give notice in writing within five days, and commence proceedi ngs in court
within ten days thereafter, or be forever debarred from voting. This
is a special remedy with a fifteen-days statute of limitations; (6) that
the supervisor is given arbitrary power to strike names from the regis-
try list without posting the names and without notice to anybody.

(2) Election law unconstitutional.

The provision of the election law of South Carolina which provides
for several ballot boxes, distinguished from each other only by the
labels, and that no ticket found in the wrong box shall be counted, is
practically an educational test, and is hence in direct violation of the
constitution of the State.

(3) Votes. Rejected.

Persons otherwise qualified as voters who attempted to get certifi-
cates of registration and were prevented by the action of the register
ing officers, were legal voters, and if they tendered their votes to the
judges of election and were refused, their votes could be counted on a
contest.

(4) Shifting of ballot boxes.

The shifting of ballot boxes for the purpose of deceiving voters and
enforcing on them an educational test not permitted by the constitu-
tion of the State, is an unlawful and fraudulent proceeding.

" An act may not expressly be forbidden by law, but if it is done with
an. unlawful purpose, and succeeds in accomplishing that purpose, the
act is thereby made unlawful." Under such circumstances the votes
found in the wrong boxes should be counted.

" It is no answer to say that the counting of such ballots is prohibited
by statute (even admitting that the statute is a reasonable regulation,
which, under the peculiar circumstances in South Carolina, we do not),
when the mistaken deposit has resulted from the active deception of
the managers. It is a crime at common law to enter into a conspiracy
to commit any offense against the purity and fairness of a public elec-
tion. (Paine on Elections, section 496, and authorities cited.)"

(5) Ballot-box stuffing.

Where ballot boxes are proved to have been stuffed, the returns are
rejected and no votes counted except those proved or conceded aside
from the returns. This in spite of the fact that the excess of votes had
been " purged" as provided for in the statutes of South Carolina, for
" such method of disposing of extra ballots is provided for mistakes,
and not for frauds."

REPORT.

JUNE 20, 1890. Mr. EOWELL, from the Committee on Elections, sub-
mitted the following report:

The Committee on Elections have had under consideration the con-
tested election case of Thomas E. Miller vs. William Elliott, from the
Seventh Congressional district of South Carolina, and submit the fol-
lowing report:

At the election held November 6, 1888, in the Seventh Congressional
district of South Carolina, for Representative in Congress, Thomas E.
Miller was the candidate of the Republican party and William Elliott
of the Democratic party. The certified returns gave Elliott a majority
over Miller of 1,355, as shown by the following table.

Election returns, Seventh Congreasionul district.

Comities.

William
Elliott.

Thomas E.
Miller.

Robert
Simmons.

Beaufort . ..... . ~

898

2,056

1.753

1 547

143

652

210

821

957

OraDgeburg

987

310

Kichland . ..... ..

367

222

Sumter .......................

1,782

933

Williamsburg

1,053

624

8,358

7,003

The notice of contest, and answer thereto, cover all matters consid-
ered by the committee.

Before proceeding to examine the charges in detail, and the evidence
introduced in regard to them, the committee deems it proper to call
attention to some of the general features of the case.

In redistricting the State after the census of 1880, the legislature of
South Carolina utterly ignored the Federal Statutes. The territory of
the Seventh district is in no sense contiguous. It is well described in
contestant's brief.

The new district the Seventh Congressional district was created without regard
to shape, size, or contiguity of territory as required by law. To secure the appear-
ance of the latter, it is necessary to regard a portion of the Atlantic Ocean as dry
land. It extends from the capital of the State to Savannah, Ga., a distance of over
'200 miles, and consists of the Republican portions of five of the original districts. It
contains only three entire counties, to which is added an irregular patchwork of
portions of six (6) counties, and in it is massed the population of every large colored
or Republican settlement and town on the sea-coast or intarior, and from it has been
excluded nearly every white or Democratic settlement. In one place the district is

507

508

MILLER VS. ELLIOTT.

rnn into the ocean for the purpose of excluding the Democratic precincts of McClel-
lauville and Mount Pleasant, in Berkeley County, and Sullivan's Island, or Moultrie-
ville precinct, in Charleston County.

In color of population it was made as black as the deeds of the election officers, who
have violated every law and principle of justice to return contestee to Congress.

But this monstrosity can not thoroughly be understood without an
examination of a map of the district. An examination of the descrip-
tion of the district in the Congressional Directory will show that its
contiguity is secured by putting into it the sea beach of Charleston
County, a strip of sand a lew feet wide and many miles long, covered
half of every day by the waters of the Atlantic Ocean and incapable of
human habitation. All the habitable main-land of this county is in
another district.

The following table shows the population of the district according to
the census of 1880 :

SEVENTH CONGRESSIONAL DISTRICT.

Population and number of males of voting age classified it/ race according to census ef

1880.

TotaL

White.

Colored.

Males 21 years of
age and over.

White.

Colored.

The district -

187,536

31,520

156, 016

7,695

32,893

10, 013
30, 176
37, 037
13, 634

3,466
2,442
9,979

16, 147
27,734
27,058

852
693
2,273

3,449
6, 127
4,980

3,664
1,490
2,428
1,994
1, 512
1,260
1,286
13,681
733
2,326
1,914
2,458

1,295
1,371
1,481
2,001
779
1,323
12,961
1,431
4,409
1,337
1,708
1,535
2,521
49,553

8,881

629
433
419
393
446
387
206

3,035
1,057
2,009
1,601
1,066
873
1,080

169
95
103
89
110
83
47

609
199
369
323
223
150
191

Township of Good by 's

465
615
317
400

208
362
237
410
232
310

268
1,711
1,597
2,058

1,087
1,009
1,244
1,591
547
1,013

104
128
75
94

50
89
58
101
46
58

46
302
271
358

199
177
234
249
92
182

Township of Hope -

Township of Indian

Township of King's, except the town of Kings-
tree.
Township of Laws

Township of Mingo

Township of Sut ton's

TOWD ship of Turkey

Township of Collin's

390
537
179
160
78
49
6,854

917

1,041
3,872
1,158
1,548
1,497
2,472
42,699

7,964

98
154
45
46
27
28
1,735

252

271
871
242
384
363
574
9,817

1,642

Township of Adam's Run

TowDship of Blake

Charleston County, except those portions in First
district.
Richland County :
Lower Township

It will be seen that the colored men of voting age in this district out-
number the whites by more than 25,000. It is undoubtedly a misfor-
une, but it is none the less true, that political parties in this district are
divided on race lines. The colored men as a rule are Eepublicans, and
the white men are Democrats. That this is true is nowhere seriously
questioned in the record in this case. It is therefore safe to say, unless
the mass of colored voters have ceased to take an interest in political
matters, that with laws bearing equally on white and black, and with

MILLER VS. ELLIOTT. 509

anything like a fair election, the Republicans of tbe Seventh district
would poll four times as many votes as the Democrats, and would have
anywhere from 15,000 to 20,000 majority.

The history of tbe district as it has come before former Congresses,
and as it is presented in this record, precludes the belief that its col-
ored men have to any considerable extent ceased to be interested in.
elections, especially Presidential and Congressional elections. On the
contrary, the colored Republicans have at all times kept up their party
organization and have never failed to make a determined effort to
secure a Republican Representative in Congress from the Seventh dis-
trict.

The present election and registration law of South Carolina was en-
acted by the legislature of that State in 1881. In the brief of contest-
ant that law is characterized in the following vigorous language:

In 1881 the election and registration law of South Carolina, the twin companion
of the gerrymandering already described, was enacted by the legislature. It was
the high- water mark of political ingenuity coupled with rascality, and merits its
appellation, " Fraud made easy and safe." It is perfect in being entirely fair on its
face, and sufficiently elastic to be susceptible to any construction in its enforcements,
or to permit any species of fraud to be committed without a violation of any of its
provisions. It is particularly remarkable in zealously guarding with severe penal-
ties* (he transmission' of the fraudulent results obtained by the local boards, while
the neglect that amounts to fraud and offenses against political rights are not even
made a simple misdemeanor.

As we call attention to some of the salient features of the law, it will
be seen that this language is by no means too emphatic. That this law
was enacteu for the deliberate purpose of indirectly disfranchising, so
far as possible, the colored voters of the State admits of no serious
question. We give here so much of the election and registration law of
South Carolina as is necessary to illustrate our views.

The constitution of the State prescribes the qualifications of voters.
They must be male citizens of the United States, twenty one years of
age, residents of the State one year and of the county sixty days, not
inmates of almshouses or prisons, and not of unsound mind. Persons
convicted of treason, murder, robbery, or dueling are disfranchised, and
the legislature is expressly prohibited from disfranchising any one else.

The first section of the registration act defines the qualifications for
voting as in the constitution, except that it adds a new and enlarged
meaning to tbe term robbery.

Tbe second section provides that no person shall be allowed to vote
unless registered in the manner provided in the act.

The third section provides for the appointment, by the governor (by
and with the advice and consent of the senate), of a supervisor of reg-
istration for each county on or before the 1st day of March following
the passage of the act, and every two years thereafter} also for the ap-
pointment of two assistant supervisors to act with the supervisor as a
board of appeals in case of refusal by the supervisor to register any
applicant.

Section 4 provides for registration books, two for each precinct.

SEC. 5. After the approval of this act the supervisor of registration, in the months
of May and June next, shall make a full and complete registration of all qualified
voters, in the following manner: He shall give three weeks' notice of the times and
places of registration, by advertising in one or more county papers, or by posting in
a public place in each voting preciont where no paper is published in the county.
The time for registration shull not be less than one nor more than three days at each
registration precinct. Immediately after closing the registration at the precinct he
shall open his books at the county seat to correct errors in registration and to register
bnch electors as failed to register at their respective precincts, and who shall then and

510 MILLER VS. ELLIOTT.

there present themselves for that purpose, entering the names of such voters in hia
book for their proper precincts. At the conclusion of the registration hereinbefore
provided for the supervisor of registration shall revise the list, and in case it be made
to appear to his satisfaction that there is a qualified voter in a precinct who has
failed to register, he may, upon such evidence as he may think necessary in his dis-
cretion, permit the name of such voter to be placed on said list and issue a certificate
therefor. That for the purpose of registration each township as now laid out and
defined be, and is hereby, declared a registration precinct, and in those counties in
which there are no such townships that the parish, as formerly known and denned,
be, and is hereby, declared such precinct, and in the cities of Columbia and Charles-
ton each ward shall be a registration precinct.

SEC. 6. When the said registration shall have been completed, the books shall be
closed and not reopened for registration, except for the purposes and as hereinafter
mentioned, until after the next general election for State officers. After the said next
general election, the said books shall be reopened for registration of such persons as
shall thereafter become entitled to register on the first Monday in each mouth, to and
until the first Monday of July, inclusive, preceding the following general election,
upon which last-named day the same shall be closed and not reopened for registra-
tion until after the said general election ; and ever after the said book sLall be opened
for registration of such electors, on the days above mentioned, until the first day of
July preceding a general election, when the same shall be closed as aforesaid until
the said general election shall have taken place.

SEC. 7. Each elector in the State shall be required, at the time advertised for his
precinct as hereinbefore provided, to appear before the supervisor of registration, at
the place advertised, and make oalh before the said supervisor, which oath the said
supervisor is hereby authorized and required to administer, that the facts then and
there to be stated by him as to his name, age, occupation, and place of residence,
and duration of residence in the county and State are true, and thereupon the said
supervisor shall enter the name, age, occupation, and place of residence of the elector
in the appropriate column in his registration book. He shall make and keep a list
of the contested applications for registration which he rejects, and report the same
for hearing before the assistant supervisors as hereinbefore required.

SEC. 8. The supervisor of registration shall determine as to the legal qualifica-
tions of any applicautfor registration by summary process, requiring oath, evidence,
or both, if he deem proper, subject to revision by the assistant supervisors and himself
in all cases where he has refused to register an applicant. From the decision of the
supervisors of registration any applicant who is rejected shall have the right to a
review thereof by the circuit court, provided he give notice in writing to the super-
visor of his application for such review, and the grounds thereof, within five days
from the date .f his rejection, and commence his proceedings within ten days from
the service of said notice.

Section 9 provides for the registration of persons coming of age.

Section 10 provides for giving a certificate of registration to each reg-
istered voter.

Section 11 provides for the renewal of certificates when worn or de-
faced, and, as amended, provides for renewal of lost certificates, but
the applicant is obliged to make oath to the circumstances attending
the loss, and "that he has not sold, bartered, or parted with the same
for any pecuniary, valuable, or other consideration, and has not willfully
destroyed the same," and the supervisor is authorized to require such
evidence as he deems necessary as to the loss.

His decision is subject to review by the board of appeals, when a re-
newal certificate has been rejected, and their action is subject to review-
by the circuit court if notice is given within five days and proceedings
commenced within ten days thereafter.

Sections 12, 13, 14, and 15 provide for the surrender of the old and
the issue of new registration certificates whenever a voter changes his
residence, either within the precinct or to another precinct or county.
Any one so changing his residence without a transfer certificate, is de-
barred from the privilege of voting.

SEC. 16. The supervisor of registration shall, immediately preceding each elec-
tion, revise the registration of electors and mark off" the names of such electors as
have died and such as have removed from one residence, precinct, parish, ward, o**
county, to another, without notifying him and obtaining a certificate of transfer as
hereinbefore provided.

MILLER VS. ELLIOTT. 511

Sections 17 and 18 provide for furnishing the managers of election
with copies of the registration boots, ami for the pay ot supervisors.

It will be seen that under this act a complete precinct registration of
all qualified voters who should apply was provided for, to be made in
the months ol May and June, 1882 ; the supervisors visiting each town-
ship for that purpose, after due notice, and remaining not less than one
nor more than three days. In that time he was required to administer
oaths to all applicants, requiring a statement of age, residence, occupa-
tion, length oi icsidence in county and State, and to take such other evi-
dence as he deemed fit; to inaKe a record of these items, and to issue to
each registered voter a certificate containing the same statement re-
quired to be recorded. In many of the townships of the State this
was an impossibility within the limited time.

Immediately on losing the precinct registration the supervisor was
required to open his books at the county seat, to correct errors and
register such voters as had failed to register at the precinct registra-
tion. Having concluded his registration he is required to revise his
lists, and may ^ in his discretion, permit a registration if any qualified
voter has tailed to register. Having completed his revision the books
must be closed and not thereafter opened for registration until after the
next general election, and then only for those who have become entitled
to registration since the close of the first general registration. After
each general election, the books are to be opened on the first Monday
in each mouth up to and including the first Monday in July next pre-
ceding any general election, but only for the registration of those who
have become entitled to register since the last closing of the books.

Under the letter of this act, any qualified elector who failed to regis-
ter at the first general registration is forever thereafter debarred
from legist ering and from voting. Any one subsequently becoming en-
titled to register and failing to do so before the closing of the books in
July preceding the general election at which he would first be entitled
to vote is forever thereafter dislranchised. A minor failing to register
before- the first general election following his becoming of voiing age
is thereafter disfranchised. Such is the letter of the law, and such, we
are informed, is the universal practice of registering officers. We quote
the testimony of one of them :

James S. Polk, being duly sworn, deposes and says (p. 345):

Question. What official position do you hold in Sumter County ? Answer. Super-
visor of registration.

Question. How long have you held that position ? Answer. Two years last Octo-
ber.

Question. It has been testified by several witnesses for the contestant that you re-
fused upon proper demand to register duly qualified Republican voters; wassuch the
fact f Answer. It was not ; I never did.

Question. What is the provision of the registration law in regard to such persons
as were refused registration ? Answer. The law provides that a man must be regis-
tered for the election preceding which he becomes twenty-one years of age ; if from
neglect or any cause he fails to register then, then lie is debarred from registering
afterwards by the terms of the law.

R. H. Kichardson (p. 26) says :

Q. Do you know the supervisor of registration of this county f A. I do.

Q. Is he a Democrat or a Republican ? A. A Democrat.

Q. Do you know that he refused upon proper demand to register Republican voters
hclore the last election ? A. Persons who were of age at the time the general regis-
tration laws were passed he refused to register, on the ground that they had neglected
their former chance of being registered in their time.

Any one parting with his certificate of registration for any consider-
ation, or wil.Uully destroying it, becomes thereby forever disfranchised,

MILLER VS. ELLIOTT.

and yet he has committed neither treason, murder, robbery, nor duel-
iug, nor, indeed, has he committed any offense made a crime by the
laws of the State. That these provisions of the registration statutes
are unconstitutional and void can not be seriously questioned. They
attach the penalty of permanent disfranchisemeut for failing for any
cause to register for the first election at which the citizen would be
entitled to vote if registered. They affix a like penalty for parting
with or destroying a registration certificate.

But they give such latitude to the supervisor of registration as will
enable him to take good care that none of his political friends shall suf-
fer the penalty. Alter the first general registration, all future regis-
trations and changes of registration must be made at the county seat;
and all applications for transfer certificates must be made at the county
seat of the county where former registration was had, although the
voter may in the mean time have moved to the opposite end of the
State. All applications for the renewal of worn or lost certificates must
iu like manner be made at the county seat of the county where the cer-
tificate was issued ; and, at the will of the supervisor, such evidence of
the circumstances of loss as he may require must be produced.

When the board of appeals has decided against an applicant for reg-
istration, he may appeal, but must give notice in writing within five
days, and commence proceedings in court within ten days thereafter,
or be forever debarred from voting. A special remedy with a fifteen-
days statute of limitations!

Under the name of a registration law, these burdensome and uurea
sonable, and, therefore, unlawful barriers have been erected, to ex-
clude from the polls a large body of citizens.

In States whose constitutions do not provide, nor authorize their legislatures to
provide, that persons shall not vote unless registered in a prescribed mode, the ques-
tion whether a legislative provision to that effect is or is not of constitutional
validity always turns upon the question whether it is merely a reasonable and con-
venient regulation of the right to vote, or is under the pretense of regulation an
abridgment, subversion, or restraint of that right. (Paine on Elections, section 340.)

In the case of Capen vs. Foster (12 Pick., 485) the supreme court of
Massachusetts said:

And this court >s of opinion that, in all cases where the Constitution has conferred
a political right, or privilege, and where the Constitution has not particularly des-
ignated the manner in which that right is to be exercised, it is clearly within the
just and constitutional limits of the legislative power to adopt any reasonable and
uniform regulations in regard to the time and mode of exercising that right in a
prompt, orderly, and convenient manner. Such a construction would afford no war-
rant for such an exercise of legislative power as, under the pretense and color of
regulating, should subvert or seriously restrain the right itself.

The supreme court of Pennsylvania, iu the case of Page v*. Allen
(58 Penn. St., 338), pronounced a registry law of that State unconstitu-
tional on the ground that it impaired the free exercise of the right of
suffrage conferred by the Constitution. The court said :

For the orderly exercise of these (constitutional) qualifications it is admitted that
the legislature must prescribe necessary regulations as to the places, mode and man-
ner, and whatever else may be r.equired to secure its full and free exercise; but this
duty and right inherently imply that such regulations are to be subordinate to the
enjoyment of the right, the exercise of which is regulated. The right must not be
impaired by the regulations; it must be regulations purely, not destruction. If this
were not an immutable principle, elements essential to the right itself might be in-
vaded, frittered away, or entirely exscinded, under the name or pretense of regula
tiou, and thus would the natural order of things be subverted, by making the prin-
cipal subordinate to the accessory ; to state is to prove this position.

To crown all, the supervisor, without notice to anybody, and without
ppsting the names, is required, immediately preceding any general

MILLER VS. ELLIOTT. 513

election, to revise the registry and strike oft' the Dames of such persons
as he determines have died or have changed their residence and have
neglected to notify him and obtain a transfer certificate.

When it is remembered that the white Democrats of the State are
largely the property owners, having permanent places of residence, and
that the colored men are poor, mostly tenants and laborers, under the
necessity of frequently changing their homes the hardship and in-
equality of the law are more strikingly evident.

It would seem that the law placed enough obstructions in the way of
registration to satisfy the most earnest believer in the disfranchisement
of the colored men of South Carolina, but, as shown by the record
in this case, the supervisors appointed to execute it have succeeded, in
almost every instance, in erecting other and most effective barriers
not provided for in the statute. They are required to keep their books
at the county seat, and to open them for registration on the first Mon-
day of certain specified months, but they are not required to give any
notice of where they keep their offices or their books. In many coun-
ties a diligent search on the part of Republicans fails to discover the
supervisor's office, or, when it is found, so many hindrances and obstruc-
tions are interposed that voters fail to get transfers or registry, although
they apply at every opportunity, during every month of registration in
the year of a general election. In some large precincts no one has been
able to secure a transfer since the general registry in 1882.

Albert Beach, supervisor of registration of Colleton County, testifies
(p. 293) that in Jacksouborough precinct there have been no renewals
or transfers lor the last four years ; the same for Adams Bun, for Dele-
mars, for Gloverville, and for Green Pond.

He further says that he did not advertise where he would meet the
citizens for the purpose of renewal, transfers, or original registration,
because it was generally known where he would be.

In regard to the action of this same supervisor, we quote the testi-
mony of W. F. Myers (p. 95) :

Q. What facilities were afforded by the supervisor of registration iu registering,
renewing, and transferring certificates ? A. So far as Republicans were concerned
no facilities were offered for registering those who have recently come of age, those
who -had removed, nor for those who desired renewal. I took over a hundred and
fifty amdavits of Republicans applying for certificates, and at one time had a num-
ber of applicants to coine to the court-house from a great distance to meet the super-
visor, but he could never be found. On the other hand Democrats were afforded
every and undue opportunities to secure theirs. I, on the 4th of November preceding
the last election, in the court-room, was an unwilling listener to ;i conversation be-
tween Hon. C. G. Henderson and the supervisor" o registration, Beach, when the
former asked for those certificates. The latter replied that they were made and in his
office. He went out and returned with a package and handed it to Mr. Henderson,
which I supposed were the certificates. I have had two citizens, known to bo Dem-
ocrats, to tell me that up to the day before the election they were urgently requested
to go up and get a certificate of registration that they could go up and vote on the
6th, which they declined to do.

Q. Did the supervisor have an office; if so, where was it? A. So far as I could
ascertain or find out through diligent inquiry he had not. I inquired at the offices
located in the court-house, but none could or would say where he was located, ex-
cepting Auditor Smith, who said he (meaning the supervisor) carno into his (Smith's)
office, but he could not tell me if he had a permanent office.

J. H. Chapman, page 92 of record, corroborates Myers when ques-
tioned :

Q. Do you know if any person or persons desiring to register or have their regis-
tration certificates transferred or renewed have ever gone to the county seat at any
time during ISciB? If so, state the dates upon which they went.

(Objected to upou the grounds that the persons applying for renewal of certificates
are the best evidence; what witness might say would be hearsay and inadmissible.)

H. Mis. 137 33

514 MILLER VS. ELLIOTT.

A. I do know of such persons going for the purpose of having their*s renewed or
transferred ; on the first Monday in March, first Monday in April, first Monday in July,
an<> after they, along with myself, got up to Walterboro. I inquired for the oflice of
the supervisor of registration ; I inquired of Mr. Myers and Jackson Grant, but I
could not find the oflice.

Q. State into what building, if any, did you go at Walterboro to look for the office
of supervisor of registration. A. I went in the court-house and I looked on each
side of the building as I passed through the passage-way for the sign of the office of
supervisor of registration, and I never saw auy sign of said office.

Q. State if while there looking for said office of registration if yon saw the super-
visor of registration. A. I did not.

Q. Did you look into any of the rooms or offices in the court-house building for the
supervisor of registration on said days ? A. I did.

W. B. Scott (page 94 of record) goes into the office the supervisor of
registration claims to use on the proper day of registration, does not
find him, but finds the auditor of the county, who knows nothing ex-
cept " he sometimes comes in there." Scott being questioned :

Q. Have you ever gone to Walterboro aud endeavored to find the office of super-
visor of registration ; and, if so, state what happened. A. I went there the first
Monday in last March, and as I went I took my registration certificate with me to
see whether I could get it change from Jacksonboro to Green Pond, and as I went up
I ask Jackson Grant what time the supervisor will be in and whereabout he held
his office ; he told me to go to the court-house and I would find out, and I went over
and saw the auditor; Mr. Smith told me where the office of the supervisor was; he
said sometimes becomes in here and moreover I have not time to bother with you.
Then I came on bac k home and alter I came back I wrote a letter to Major Myers.

Q. Did you ever go back again ? A. I went back the first Monday in June and did
not see the supervisor, and I went back again in July and the supervisor was pointed
out to me ; I went to him where his office was and when he would be in, as they had
his registrar certificate and desire to have it change from Jacksonboro to Green Pond
and had forty affidavits of persons who wanted to change theirs and said he did not
know when he would be in Walterboro and he had no office there.

As to Orangeburgh County, we quote from the testimony of E. A.
Webster (p. 324) :

Q. Are the same facilities afforded Republicans and Democrats alike in registration
of voters in Orangeburgh County? A. In the administration of the law the same
facilities are not allowed to Republicans as to Democratic voters. The Republicans
are not able to find the supervisor of registration for the purpose of changing cer-
tificates, registering and renewing. The supervisor residing some ten miles from the
court-house, his office has not been kept open as required by law. Republicans had
access only during the time his office was opened. The office on those days crowded
with Republicans, and a large number were present who could not register, though
they applied. The office has not been open since the first Monday in August, 1888, to
Republicans previous to the election. In my judgment there were at least fifteen hun-
dred who applied and were not registered, including necessary transfers and changes,
on the last day in question. Just before the closing of the office I presented to the
supervisor of registration a large number of affidavits of lost certificates collected
from voters present from the Seventh Congressional district, and tend' red them to
the supervisor, requesting that he should issue certificates thereon, which be refused
to do. I will state that while Republicans met with this embarrassment ar.d ob-
struction certificates were issued to Democrats without personal application. I pro-
tested against this, as Republican county chairman, as being unfair. The super-
visor, who is a Democrat, stated to me that he was not compelled under the law to
make these changes and issue certificates except upon personal application, but that
if he choose to favor his political friends he should do so. I applied to him several times
after the first Monday in August meeting him on the street to make some changes
in certificates for change of residence, and to issue in place of lost certificates upon
affidavits in my possession ; this he refused to do. My instructions, as county
chairman, to the Republican voters who applied was to wait about or at the office
until it was closed. I should judge, on the last day, that about 250 or 300 were there
when the office closed ; many of them from the Seventh Congressional district.

By means detailed by these witnesses, thousands of Republicans of
the seventh district were deprived of such certificates of registration as
the managers would recognize. Hundreds of them went to the polls

MILLER VS. ELLIOTT. 515

and presented their old certificates, only to find their names stricken
from the books. Many of them were voters who had not changed their
residence, even within the precinct of their residence. Some who, after
much trouble, had secured transfer certificates, went to the polls and
found that the description copied into the precinct registry did not
agree with the description in their certificates, and so were unable to
vote.

We do not make any account of the number of these voters who
failed to get certificates and who tendered their votes, because in this
case it would not affect the result farther than to increase contestant's
majority ; but we hold that all such persons, otherwise qualified, were
legal voters.

We go further, and hold that there is no valid registration law in
South Carolina. The election machinery of the State, while not so bad
as its registration laws, is still of a character which can not well be
overlooked. All the machinery of elections is in the bands of the
Democratic party. The governor appoints commissioners of election
for each county, without provision for minority representation, there
being two sets of these commissioners, one for State and the other for
Federal elections. These in turn appoint precinct managers. To these
commissioners the returns of the precinct managers are returned, to be
by them canvassed and certified to a State returning board, composed
of certain State officers. Both the county and State returning boards
have quasi-judicial powers, instead of being limited to the canvass and
certification of the vote as cast.

From seven to nine ballot boxes are required to hold an election ;
one for governor and lieutenant-governor, one for other State officers,
one for circuit solicitor, one for state senator, one for member of the
State house of representatives, one for county officers, one for repre-
sentative in Congress, one for Presidential elector, and a ninth box if
any special question is to be voted on at that election.

These boxes are to be labeled according to the officers, the two Fed-
eral boxes to be presided over by one set of managers, and the six or
seven State boxes by another set. Polls for Federal and State elec-
tions may be widely separated. All the tickets are to be of a specified
description, and none others can be counted. The voter is required to
deposit his own ticket, and find out for himself the right box, the man-
agers on demand only being required to read the names on the boxes,
but there is no requirement that they shall designate the boxes while
pronouncing the names, or read the names in any particular order. No
other person is permitted to speak to the voter while in the polling
place. No tickets found in the wrong box are to be counted.

This, in fact, makes an educational test, in direct violation of the
constitution of the State. Its practical operation will be seen when we
come to consider the details of this case.

In the Seventh district, except in one county, all the supervisors of
registration, all the commissioners of election, and all the precinct man-
agers, were Democrats, the Republicans being denied representation
on any of the boards. The only way to have watchfulness at the elec-
tion, by persons not politically hostile to contestant, was to secure the
appointment of United States supervisors, one of each party, who, un-
der the present law, are required to serve without compensation.

On the 27th day of September, 1888, the Republican executive com-
mittee of the State addressed a communication to Governor Kichard-
eon, asking for representation on the election boards. To this commu-

516 MILLEE VS. ELLIOTT.

nicatiou the Governor made answer, denying the request, and, among
other things, said:

It will be sufficient simply to say that, iu my judgment, a departure from the wisely-
established methods and principles upon which these appointments are made would
endanger the continuance of the perfectly free, fair, and peaceful elections the
professed object of your desire that are the proud boast and the highest achieve-
ment of Democratic rule in this State.

This from the 'chief executive of the State, when denying to a party
which outnumbered his party four to one in the Seventh district, a
participation in the conduct of the election, a participation which is re-
garded almost everywhere else as necessary to honest elections, and
when denied is regarded as a matter of law, as casting a suspicion
upon the integrity of the election and returns.

But the governor continues :

To the eternal honor of our State and the Democratic party it can now be said that
our elections are the freest and fairest in the world, and that not a single citizen of
hers, no matter what his rank, color, or condition, can, under her just and equal laws,
impartially administered as they are, be by any perversion or intimidation, barred
at the polls from the free and full exercise of his suffrage. There is not only perfect
freedom iu voting, but the amplest protection afforded the voter.

From what we have said of the registration and election law and from
the examples given of the conductof supervisors of registration, it will be
seen that we do not agree with the governor. We are at a loss to under-
stand how such language could be used with sincerity. In the further
examination of this ca&e we shall show how grievously the governor was
deceived as to the Seventh district, if, indeed, his answer to the execu-
tive committee had any other purpose than to mislead the people of the
United States outside of South Carolina.

With this general review of the situation we come to the examination
of the specific facts affecting the election.

BALLOTS IN WRONG BOXES.

The first question which we consider, which resulted in a loss of
votes to contestant, is the failure to count ballots for him found in the
Presidential box. As has been noted, managers of elections are pro-
hibited from counting any ballots found in the wrong box. At the
federal polls, at this election, there were two boxes, one for Presiden-
tial electors, and one for Congressman. Under the peculiar wording of
the statute, unlettered voters are obliged to rely upon those of their
associates who can read to learn how to deposit their tickets so 'as not
to get them into the wrong box, and so lose their votes.

If the two boxes are put into position before the voting commences,
and are permitted to remain in the same position during the day, there
is little danger of any mistake, all the voters being instructed as to
their position by those in whom they have confidence. But if the boxes
are shifted about at intervals during the day, it follows as a matter of
course that every unlettered voter who goes to the poll after the change
and before its discovery deposits his ballot in the wrong box, and loses
his vote so far as the count of the managers is concerned. There is no
prohibition in the statute against shifting the boxes, and so it is assumed
by the managers of election that they have a right to shift the boxes as
often as they please, for the express purpose, as they acknowledge, of
confusing the voters and causing them to deposit their ballots in the
wrong box.

It was gravely argued before the committee by an eminent lawyer
that there was nothing wrong in this shifting of boxes, and that con-

MILLER VS. ELLIOTT. 517

testee was entitled to all the benefits accruing to him by reason of such
action. An act may not expressly be forbidden by law, but if it is done
with an unlawful purpose, and succeeds in accomplishing that purpose,
the act is thereby made unlawful.

At this election, in a large number of precincts, this shifting of boxes
was resorted to. The facts and the motive are proven beyond a rea-
sonable doubt. We submit a few extracts from the evidence upon this
bra nch of the case :

Daniel Eaveuel, Kepublican United States supervisor at Jourdin's,
Williarnsburgh County, says (p. 8) :

Q. \Va? the position of the boxes changed during the progress of the election that
day! A. Yes, sir.

Q. By whom? A. By the managers.

Q. About how many times? A. As well as I can recollect about six or seven times.

Q. Did you show the voters or attempt to show the voters what box to deposit their
ballots in ? A. I attempted to show them, but the managers objected.

M. M. Monzon, Eepublicau United States supervisor at Kingstree,
says (p. 13):

Q. How many ballots, if any, were found in the Presidential electors' box bearing
the name of Thomas E. Miller for member of 51st Congress frpm the Seventh Con-
gressional district ? A. Sixty-six were in the wrong boxes.

Q. What was 'done with those ballots; were they counted for Thomas E. Miller?
A. No, sir; they were not counted for Miller. They were destroyed by the managers.

Q. Was the position of the boxes changed that day during the election ? A. They
were, a number of times.

Q. By whom were they changed? A. By the managers of election.

Jesse S. Fulmore, Republican United States supervisor at Indian-
town (p. 15), says :

Q. What was done with those 81 ballots ? A. They were taken opt and destroyed.

Q. Then they were not counted for Thomas E. Miller ? A. No, sir.

Q. Who destroyed them ? A. The managers of election.

Q. Were the managers of election Republicans or Democrats? A. They were all
Democrats.

Q. Was the position of the boxes changed or shifted about that day, during the
progress of the election ? A. Yes, sir ; they were changed from one place to another
at least five times.

Q. Who shifted or changed them about ? A. The managers of election.

B. J. Fortune, Kepublican United States supervisor at Corbell's Store
(p. 21), says:

Q. What became of the other 29 ballots ? A. They were destroyed by the managers.

Q. Why were they destroyed ? A. Because they were placed into the wrong box.

Q. What box? A. Into the Presidential box.

Q. Whose names did these ballots bear? A. T. E. Miller.

Q. Was the position of the boxes changed during the election from the position they
were in at the beginning ; if so, by whom ? A. They were changed about 8 or 9 times
by W. A. Cooper and Robert Wilson, the managers.

Q. Did you hear the managers making any remarks in regard to the change of the
boxes? A. I did not, although I called attention to change.

Q. To what political party did the managers belong? A. The Democratic party.

L. E. Davis, Eepublican United States supervisor at Sumter (p. 24),
says :

Q. Whose name did these 9 ballots bear? A. T. E. Miller.

Q. Was the position of the boxes changed during the election from the position they
were in when the voting began; if so, by whom? A. Changed frequently by the
managers.

Q. After they were so changed, and a voter would vote, what did the managers
say ? A. They did not say anything, except on one or two occasions.

Q. What was said on those occasions ? A. On one occasion I wanted to vote my-
self ; the box was shifted around, and the managers laughed and said I made him
vote in the wrong box.

518 MILLER VS. ELLIOTT.

Q. To what political party did the managers belong ? A. The Democratic party.

Q. Did you keep a poll-list ? A. I tried to do it, but was preveuted.

Q. State who prevented you from keeping a poll-list.

(Objected to as irrelevant, nothing in the ground of contest. )

A. The list I was keeping was snatched from me several times by Mr. R. D. Lee,
counsel for contestee and Democratic county chairman.

(Objected to on above grouuds.)

Q. Do yoa know what official position, if any, Mr. Lee held at the polls on that
day ? A. I think be held a position as constable.

Q. Did you keep or succeed in keeping any part of the poll-list ? A. None ; I tried
twice ; it was snatched and destroyed.

Q. Was any violence offered to you by any of the managers, if you should keep a
poll-list T

(Objected to as above.)

A. I was threatened to be put out if I kept another poll-list.

M. Johnson, Republican United States supervisor at Eastover (p.
319), says :

Q. State if you can where the boxes were placed while the voting was being done,
and if they were changed as to position during the day by any one. A. The boxes
were placed on board partition between the managers and the person voting, and were
shuffled by the inanagcjrs during the day.

Q. State if there was any object or closed partition between where the managers
of election stood and where you stood while the voting was being conducted. A. I
was placed at such a position by the chairman of the board of managers from which
I could seethe voting, but the boxes were being changed so that I could not see them
when they were handled or changed by the managers.

Q. Do you mean by above answer to say that either of the boxes was taken oft' of
where they were placed originally, out of your sight, by any one? A. I do, as the
managers took thein off from where they were originally placed ; I could not see them.

Q. When they took them, or either, from where they were originally placed where
would they place them ? I mean, would they place them between you and any object
or not? If so, state what the object was. A. They would place them behind this
board partition on a box or something of the kind, and would then change them.

Q. While the boxes or box was taken out of its original place and placed behind
the board partition were you in a position to see what was done to or with the boxes
or box by any one? A. I was not from the fact that the partition prevented my
seeing, and anything could have been done with the boxes while they were changing
them.

Q. Why did you not go behind the partition whenever any one took a box or boxes
out of your sight? A. I was assigned to my position in the room by chairman of
board, where I had to remain all day.

J. C. Eason, Democratic United States supervisor at Eastover (p.
332), says:

Q. Did the managers or any one of them in any way interfere or intermeddle with
any of the voters, except to put to them certain questions required by law, while
casting their votes ? A. No ; they never interfered with any one.

Q. What disposition or arrangement would the managers make with reference to
the boxes during the day while the election was going on ? A. The only thing I saw
them do with the boxes was to change the position of the two boxes. That is, place
one where the other had been. This was done openly, so Johnson and I could see it
done. One box was distinctly labeled for Presidential electors and the other was
distinctly labeled for member of Congress.

Q. Why was this interchange of boxes made ? A. I think the cause was that John-
Hon began sending out notes stating which sides the respective boxes for electors
and Congressman were on.

Q. Can you say how many.these shiftings of the boxes were made during the day ?
A. I can not.

Q. How long were the managers in making the shifting of the boxes ? A. It was
momentarily. They would pick up, move the other in its place, and put it down.

Q. In making these changes was any one of them ever taken out of Johnson's
sight ? A. I could always see them myself.

And on cross-examination :

Q. The ballot-boxes, you say, were transposed several times through the day ? A.
Yes.

Q. And ballots were deposited by colored voters after these changes as well as bj
white voters ? A. Yes.

MILLER VS. ELLIOTT. 519

Q. When a voter went to the boxes to deposit his ballot did anybody accompany
him? A. No.

Q. Or did anybody explain to the voter the character of the respective boxes ? A.
No.

Q. And i herefore if a voter who conld not read shonld deposit his ballots in the
boxes according to the information he bad previously received as to their location,
there would be no certainty of his ballots going into the boxes he had intended ? A.
No ; I think not.

Q. And is that the way it happened that there were 8 or 10 ballots in one of the
boxes which the managers destroyed because they were in the wrong box ? A. I sup-
pose that was the way of it.

Eobert Wilson, Democratic manager at Corbett's Store (p. 347), says:

Cross-examined by Mr. WHITTAKER :

Question. By whom was the position of the boxes changed ? Answer. In some
cases by myself, and in some by Mr. W. A. Cooper, one of the managers.

Question' Why was the position ot the boxes changed? Answer. They were
chaiiytd to carry out the spirit of the laiv and test the intelligence of the voter. The voters
were being directed by a man who had climbed up a tree so that he could see the po-
sit ion of the boxes over the barricade ; the voters were coming in with their tickets
and hands held upright, one in one band and one in another, and whenever the boxes
were changed the man up the tree would hollow out, " Mind dare!" " Change dem
tickets!"

Question. Why were the boxes labeled? Answer. They were delivered to UB
labeled.

Quesiion. State that law which in our State directs the managers to test the intel-
ligence of the voter by any means. Answer. I know of no law which directs us and
none to prohibit. We understood the spirit of the law to be that each man must read for
himself the labels upon the boxes.

Q uestion. Does the spirit of the law prevent any person outside of the polling place
directing a voter how and where to deposit his ballot ? Answer. We think BO, as it
required us to put up secure barricades.

Question. Was the position of the boxes changed while the voters were in the poll-
ing place ? Answer. In some cases it was. * * The position of the boxes
were changed several times that day ; I know of no law to prevent it; Fortune ob-
jected and we told him if he would show us any law to prohibit, we would not move
them again ; he examined his copy of the law carefully and told us that he saw none.

As to this witness' statement of the law for putting up "secure barri-
cades," it may be said that the law provides that an mclosure "shall
Toe railed off, or otherwise provided" (sec. 29), thus showing that the
law does not contemplate a tight barricade which shall shut off the
view.

U. O. Marshall, Democratic manager at Eastover (p. 336), says:

Q. Were any of these two boxes in which the election was held carried or taken by
any person out of the sight ol the managers? A. They were not.

Q. During the time ot the electiou were these two boxes shifted or transposed on
this shelf upon which they rested? A. They were.

Q. For what purpose were these boxes transposed and in what manner ? A. When
we made the first change Met-nocli Johnson, the Republican supervisor, spoke to a
voter and told him to tell them outside about the position of the boxes. 1 called his
attention to the State law forbidding any one to speak to voters. He then got to
sending notes out by voters, trying to give them to voter surreptitiously. The boxes
were changed several times in consequence of this U. S. supervisor trying to defeat the
election laws, thus trying to give his party an undue advantage.

This resulted in a net loss to contestant of over a thousand votes.
This account excludes from consideration all votes in those precincts
where the voters deposited the same kind of a ballot in each box, so as
to make sure that one of them would be counted, and only takes into
consideration those ballots which are shown by the number voting, the
number of ballots in the box, or by corresponding electoral ballots in
the wrong box, to have been placed ill the wrong box by mistake, and
against the intention of the voter.

In every instance but one, the shifting of the boxes is shown. The
purpose was unlawful, the result was the failure to have counted, and

>.:<) MILLER VS. ELLIOTT.

the destruction of over 1,000 ballots cast for contestant by duly qualified
voters.

The managers of election took no account of these ballots, imme-
diately destroyed them under a claim that the law so directed (a claim
not sustained by the statute), and as witnesses almost universally show
a remarkable forgetfulness as to their number. The United States
supervisors, present at all the polls when this destruction occurred,
kept an account of the number, and by that means we are able to as-
certain with reasonable certainty the whole number lost.

Following are the precincts where losses of this character occurred,
with the net number after deducting any losses sustained by Elliott.

Orangeburg County :

Washington Seminary

Fort Motte

Colleton County :

Adams Run

Berkeley County :

Strawberry Ferry

Biggin Church

Black Oak

Ten-Mile Hill

Calamus Pond

Muster House

Brick Church

Camp Ground 150

Haul Gap til

Total 1,049

Making large allowance for any mistake in numbers, we add 1,000
to the returned vote for Miller, making his vote 8,003, after this addi-
tion, and leaving Elliott's majority 355.

It will hardly be claimed by any one that this unlawful attempt by the
partisan friends of coutestee, acting as managers of election, to dis-
franchise a thousand voters, ought to be permitted to succeed, in a
contest. Both law and justice forbid.

If the intention of the elector can be ascertained, it is not to be defeated merely
because the inspector, through mistake or fraud, deposits his ballot in the wrong
box; nor because the elector himself, by mistake without fraud, places it iu the
wrong box. (People vs. Bates, 11 Mich., 368.)

Here the elector placed his ballot in the wrong box by mistake, the
result of the unlawful and fraudulent acts of the managers of the elec-
tion. It is no answer to say that the counting of such ballots is pro-
hibited by statute (even admitting that the statute is a reasonable regu-
lation, which, under the peculiar circumstances in South Carolina, we
do not), when the mistaken deposit has resulted from the active decep-
tion of the managers. It is a crime at common law to enter into a con-
spiracy to commit any offense against the purity and fairness of a pub-
lic election. (Paine on Elections, section 496, and authorities cited).

BALLOT-BOX STUFFING.

Williamshnrg County:
Gourdin's

Black Mingo

10
23

Greelevville

128

Salters

Cade's

Kings tree

Indian town

SumterCountv:

Corbett's Store

Statesliurg'.i

Lynchburgh

Eaftin Creek.

Mayesville

COLLETON COUNTY.

Gloverville precinct. Here the whole number of votes polled for mem-
ber of Congress was 134 ; 113 were returned for Elliott, and 20 for Miller.
When the box was opened at the close of the polls it was found to con-
tain an excess of 85 ballots, more than half as many again as were actually
voted. This proves that the box was dishonestly stuffed by somebody.
The managers were all Democrats and friends of contestee. It is scarcely
possible that it could have been done by the voters. But the evidence
leaves no doubt upon the question as to who committed the crime.

MILLER VS. ELLIOTT. 521

The United States supervisor went to the polling place very early in
the morning, and staid in front of the usual polling place waiting for the
managers to come and prepare to open the polls. Before the time for
opening the polls James H. Dodd, one of the managers, came to the fire
where the United States supervisor was standing, and on being asked,
answered that the poll was to be held in the store.

While the supervisor and Dodd were talking the clerk of the store
opened the door, where the voters afterwards entered to vote. The
supervisor entered the store and asked to have the ballot-box opened
before the election commenced. He was then informed that the election
had already commenced, and five ballots been deposited. The time for
voting had not yet arrived, the polling place had not been opened, no
proclamation had been made; with the exception of Nero Williams,
who was seen coming from the back door of the store, all of these first
five voters slept in the store in which the poll was opened the night
previous to the election. Three of the five were not registered voters
and two of them were managers of the election.

Here is clear evidence of a conspiracy : The getting together the night
before and sleeping in the polling place, the pretended opening of the
polls before the polling place was opened and the United States super-
visor admitted, and the deposit of illegal ballots so as to make an ex-
cuse for not exposing the interior of the box to the inspection of the
United States supervisor, the peculiar twisted character of the tickets
in the box, which could not have been placed there by the voters on
account of the narrow opening, and which were not taken when the ex-
cess of ballots was drawn out under a pretense of complying with the
law all reach to the inevitable conclusion that the box was stuffed
with Elliott tickets before the voting commenced. We insert here the
testimony of E. M. Chisolm, United Stktes supervisor (record, pp. 285,
280,287):

E. M. Chisolm, being duly sworn, says:

Q. State your age, occupation, residence, aud where yon were on the 6th day of
November, 1888. A. I am 31 years; am a farmer; live in Gloverville Precinct; was
at Gloverville actiug as supervisor on November 6 last.

Q. State for whom yon voted as member of Congress from the seventh district on
the 6th of November, ledS. A. For T. E. Miller.

(Objection.)

Q. State from whom did you get your ballot, if you can read, and how many bal-
lots or tickets did yon vote for Congressman at the last election. A. From Abrahm
Small, who was distributing; can read; voted one ticket for Congressman.

(Objection.)

.Q. State at what precinct did you vote, and if any one read your ticket for you.
A. Gloverville; read my own ticket.

Q. How many boxes were at the poll that day? A. Two.

Q. State the name of the person who read your ticket to you, aud to what political
parly he belongs. A. Abrahm Small; he is a Republican.

Q. You have stated that you were supervisor at Gloverville poll; state what time
in the morning you arrived at the polls, what you saw, and what was done by you
and the managers or any other persons connected with the poll. A. I think it was
about half past fonr when I reached the poll the morning of election ; I met there
Abrahm Small, Sam Hawkins, and Rob't Smalls; I inquired of them as to where the
voting would take place ; that was then right opposite the store where elections are
generally held ; as we saw none of the managers, after being there about half an
hour, things being quite still : then we heard a little thumping in the store as if some
one was getting up putting on their shoes, after which we saw the two so-called
Democrats, Ceasar Chisolm and Nero Williams, come from the back part of the store
and walk to our fire; we waited some time when Joe Dodd, another of the managers,
come from behind the store with his brother, Julius Dodd ; we judge they came from
out. of the store.

After being there a little while I said to Mr. Dodd, "Where will the poll be held
to-day t" He said he was manager of the Congressional poll. I said, "That's the

522 MILLER VS. ELLIOTT.

poll I am asking you about." In that time the front door of the store was opened by
W. F. Hill, a clerk in the store. Mr. Dodd invited me in alter I told him 1 was su-
pervisorJoe Dodd, I mean. He showed me how the voters would come in to a win-
dow. I said to him, "Mr. Dodd, the law requires me to look into the box before the
voting commences." Instead of giving me a direct answer he touched another of the
managers, Ceasar Chrisolm, and walked off'; then they had a conversation, after
which he, Dodd, said, "It is too late now, you can not look in the box." Then I
said, " I will note your objections." He said, " All right." He again repeated that
" we refuse on the ground that it was too late." I asked him the hour. He said the
poll was opened at six o'clock ; I said it is not now six o'clock, because we have the
time right here and it lacks now five minutes to six. Then he pulled out his watch
saying, "Gracious, it is near 7 o'clock!" He said at this juncture that they had
commenced voting; I said, "Well, I was here about two hours ago, and I saw no one
vote; if anybody has voted give me the names that I may copy them." He presented
his name (Joe Dodd) first; the next, I think, was Ceasar Chisolm, W. F. Hill, Nero
Williams, and Julius B. Dodd, which I copied.

(W. B. Gruber, counsel for contestee, objects to any conversation had between the
supervisors and the managers or any person or other persons than the managers,
upon the ground that it is irrelevant and hearsay, and therefore not admissible.)

Q. State whether the election was quiet during the day. A. Yes, everything went
on perfectly quiet.

Q. State what was done by you or the managers at the close of the poll, relating
all the circumstances that happened during the canvassing and counting of the votes.

(Objection on ground that if the witness as Federal supervisor performed his duty
as the law required him to do and reduced to writing in the form of a report the mat-
ters he is now called upon to testify, as to that the report would be the highest and
best evidence as to what happened, and secondary evidence inadmissible.)

A. Aiter copying the few names that was given me by Mr. Dodd, and he showed
me the window at which the people were to vote, I saw the difficulty that seemed to
be intended for fraud. I saw it was necessary the way they had it arranged to have
some one right at the window to give these men their tickets. I then choose cue I
knew was competent to issue out and stand at the window. They were instructed
that as each man came up to vote Abrahm Smalls was to hand him his tickets. The
Democrats did the same, having a man on the other side of the window to hand their
tickets. This rule was observed the whole day, vote after vote, until the closing of
the poll. Then Joe Dodd, one of the managers, said that " every one of yon leave the
house, and all of th white men come in." Chisolui, he said, "you can stay ; I did
not mean you, and Abrahm Smalls can stay with yon." Before they commenced
counting they seemed somewhat confused as to how they should count. That is, Joe
Dodd, who seemed to be the chief, and Ceasar Chisolm, they stepped off a space, hold-
ing a secret talk. They came back and suggested how they should count, which was
that they would throw all the ballots out of the small box into a larger one, which
they did. Then Ceasar Chisolm commenced to couut right off; then Joe Doild, point-
ing his finger, said, "Hold on, you must stir the votes up first; stir them up ; keep
your eyes out." Then they went on ; they then counted without giving candidates
any credit at all, after which they hud a considerable lot of votes over the names on
the poll-lint '229 in all in the box Then they found that the total number of names
on poll-list was 134; then thev proceeded to give candidates their credit. The ques-
tion came up as to the excessive votes what was to be done with them. One of the
managers theu turned his back, but not his eyes. I then observed that the general
Republican votes was folded and a portion of the Democratic votes was folded and
the rest was twisted. Then they would draw one of the folded votes the twisted votes
were never drawn until they got down to the number on the poll-list, destroying as
they drew. The managers then suggested that we now go into a general drunk, which
was done. I refused to join, against their urgent and frequent requests. They com-
menced to call off the tickets. Joe Dodd would take them from the box and Ceasar
Chisolm would call the names from the tickets, giving each candidate, Miller and
Elliott, credits. He called to a certain number and stopped at the suggestion of Joe
Dodd to take another drink, seeming to be more polite to me that night than ever be-
fore; theu they finished up the canvassing, giving Elliott, I think, 114 and Miller 21.

(Counsel for coutestee objects on ground that result of the vote should be proved
by the written return of the managers and supervisors.)

Q. Did you obseive or notice what name or names was on the ballots as they were
counted f A. I did not, because they had the table crowded and they seemed to stand
from me while counting.

Q. What was ihe uanieof the person who called the names from the tickets, and can
he read and write? A. Ctiasar Chisolm ; I suppose he can sign his name, you may
call that writing, and I suppose he could distinguish the names between Elliott and
Miller.

Q. State whether you noticed the hole or aperture in the Congressional box and

MILLEE VS. ELLIOTT.

whether those twisted tickets could have been voted through that hole and found in
the condition which they were. A. I did notice the hole ; that's what aroused my at-
tention to notice these twisted tickets and they could not have been voted through
that hole.

Q. State the name of the person who had the key and opened the box or boxes at
the close of the poll.- 1 - A. Joe Dodd.

Q. Were you in a position to know the number of Eepublican votes that were dis-
tributed by Smalls at the window and voted by the voters? A. I wasj I saw every
person as he came and offered to vote. One man, Sam Perry, wanted to assist Smalls
and I refused to allow him, as he was not competent.to distinguish the different votes.
Cbisolm, one of the Democratic managers, was there at different times trying to poke
Democratic tickets in Republican hands. I know every man in Gloverville Township
and know of only two colored men who voted the Democratic ticket.

Q. Do you know the number of white voters who are entitled to vote at that poll ;
if so, state that number?

(Objected to on ground that the record as kept by the managers is the only evidence
competent to prove who actually voted on that day.)

A. The Democrats as I remember now were Joe Dodd, Julius Dodd, John E. Bryan,
B. G. Willis, T. S. Ackerman, W. H. Nix, P. Gatch, J. B. Glover, F. T. Glover, H. L.
Acke man, A. E. Griffith, W. F. Hill, H. H. Durant, and B. M. Williams; I think
Paul McCants. I am satisfied that the whites do not cast over 21 this time including
the two colored men. The total No. of white votes in Gloverville is about (25)
twenty-five.

We refer also to the poll-list, page 628, and to the testimony of the
registering officer of the county, page 293.

The evidence shows that a large majority of the votes at this pre-
cinct were Republican, and that not to exceed 21 voted the Democratic
ticket. Inasmuch as it is impossible from the evidence to ascertain
what was the true state of the vote, we reject the returns entirely.
Tciking 113 from Elliott, and 20 from Miller, we have: Elliott, 8,245;
Miller, 7,983. Elliott's majority, 262.

Green Pond. At this precinct the returned vote was :

Elliott 216

Miller 52

Here we have another example of ballot-box stuffing.
John F. Brown, United States supervisor (pages 294, 295, 296), gives
a clear statement of the conduct here, and we quote :

Q. State your age, occupation, residence, and where you were on the 6th day of
November, 1888. A. Am about 33; lawyer; live in Green Pond precinct; was at
Green Pond poll acting as supervisor on < lection day last.

Q. State for whom you voted as member of Congress from the 7th district on the
(ith of November, 1888? A. For T. E. Miller.

(Objection.)

Q. State from whom did you get your ballot, if you can read, and how many bal-
lots or tickets did you vote for Congressman at the last election. A. From J. H.
Chapman ; I can read ; voted one on that day for Congress.

(Objected.)

Q. State at what precinct did you vote, and if any one read your ticket for yon.
A. Green Pond ; read my own ticket.

Q. How many boxes were at the poll? A. Two.

Q. State the name of the person who read your ticket to you, and to what politi-
cal party he belongs. A. J. H. Chapman ; is a Republican.

Q. State what house or place the Federal election was conducted in, or any cir-
cumstances that are material to the election that day. A. It was held in a middle
room of the house, a room I took to be the dining-room, owned by J. S. Hickman.
I d-i not know whether it was occupied or not. I arrived at the poll about day-
light that morning. About an hour and a half after I was there I saw Mr. Strobel.
the depot ageut, go down to Mr. Sanders's store ; 1 went down behiud him ; he called
Mr. Sanders, who opened the store and opened a back room in the store, the same we
voted in the election before, and a table was placed in a position as if the election
would have been held the e. I was informed that the election would be held there.
About half past six I see no boxes, neither the managers ; I felt somewhat uneasy in
regard to it being held there. I saw that Mr. Strobel and Sanders were also uneasy ;
J think either Messrs. Strobel or Sanders told me the election would be held at San
ders's store. I noticed Mr. Strobel walking out of the back door into the back yard,

524 MILLER VS. ELLIOTT.

and being in funned that the managers were all at Mr. Hicktnan'e house I walked out
of the frontdoor. The crowd followed me, Mr. Strobel goes through into his(S.)
yard, then into Mr. Hicktuau's yard and into the backdoor of Mr. Hickman's house,
ihe crowd and I following along the R. R. track. When I was about 100 or 150 feet
from Mr. Hickinan's gate Mr. Strobel came out of the front door of Hickman's
house and announced that the poll was opened. I then entered the building and
found the managers and M. A. Draudy, the supervisor, at the box ; it was then fifteen
minutes to seven by my time. I then asked the managers to exhibit the box before
voting commenced ; they announced tho poll had been opened and they could not do
it. A dispute arose between the managers and myself in regards to tho time, after
which I asked him that if they would not exhibit the boxes to give me the names of
the persons who had voted. Manager Rice gave me the names of N. V. Robertson
and E. G. Strobel as persons who had voted; I took a seat at a table they had pre-
pared for me, about 4 or 5 feet from the table on which the boxes stood. Everything
went on quietly after that until about 8 o'clock in the morning, then Manager Rice
commenced shifting or changing the boxes around. I called his attention to the fact
that he ought not to do it ; he replied that all I could do " Report ;" after then I
said no more about the changing of the boxes. About 10 o'clock he called our atten-
tion to the fact, that the people had found a way to vote by a split on top of the
Federal box near the hole, and that he would remedy it ; he goes over to Mr. Strobel,
borrowed mucilage, came back and took a Democratic ticket from the table and
placed it on the split.

Q. Did you keep a poll-list, and have you got it t A. I kept a poll-list, and here
it is.

Q. From the poll-list you kept state how many white voters' names are on it. A.
There are fifteen names on here that I am positive are white, and the name N. V.
Robertson, the first name given me and whom I did not see vote ; I don't know whether
he is white or colored.

Q. The persons whose names appear on your poll-list other than N. V. Robertson
and Strobel deposited their ballots in your presence? A. They did.

Q. How many names have you on that poll-list ? A. Two hundred and sixty-eight

Q. Place the said poll-list in evidence.

(Paper placed in evidence purporting to be the poll-list kept by supervisor at
Green Pond, and attached to this testimony.)

Q. Is this paper with the 263 names, beginning with the name of N. V. Robertson
and ending with the name of James Campbell, and marked on first page "Poll-list,"
the list of the voters who appeared and cast their ballots at Green Pond precinct, in
Colleton County, on the 6tb of November last, at the Federal poll where you acted
as U. S. supervisor? A. It is.

Q. Did you make this list of voters in the presence of the managers of election for
Green Pond precinct on the 6th of Nov. last, and is it the original and official poll-
list? A. This is the original list I made in the presence of the managers, and the
managers and myself were very careful during the day to see that the two lists tallied,
and I have made a copy of this poll-list and sent it to Charleston with my report to
the chief supervisor.

Q. State what was the condition of the ballot-boxes when they were opened after
the polls were closed, and how the tickets or ballots coutained therein compared
with the poll-lists kept by you and the managers? A. When the boxes were opened
they were full of votes ; they opened the Congressional box first, and counted all the
votes out of that box except seventy-three that they torn up as being deposited in
the wrong box, and placed them in a large box, that is, the untorn ballots; those
placed in the large box were (586) five hundred and eighty-six votes or ballots.
When they commenced counting them out of the box I stood near enough to look
into the box, and tho ballots in the bottom of the box appeared to have been newly
folded and laid in ; the rest of the ballots appeared as after they were folded they had
been held in the hands some time before they were voted ; I saw the names on some
of these newly folded ballots in the box as they were taken out, and the name I saw
was that of Wm. Elliott. They then commenced to draw out the excess ballots;
Mr. Blanchard commenced drawing, I noticed him; he drew from the top of this
large box. After he was drawing for some time, about 100 or 125. Mr. Rice winked
at him and told him if he was tired drawing let him (R.) draw. Mr. Blanchard then
moved away from the box; then Rice commenced drawing; I noticed him in draw-
ing ; lie drew the votes that were in the bottom of the box, and continued to draw
until he drawn out all the excess votes. Then they counted the votes and gave candi-
dates credit, for the first time. They gave Wm. Elliott 216 ; T. E. Miller, 52.

Q. Did you know or did you have any way of knowing during the day how many
persons at Green Pond voted for Wm. Elliott for Congress? A. 1 know this, that
when I went into the room in the morning I found the tickets or some tickets for
Wm. Elliott on the table by the Congressional box, and the Democratic electoral

MILLER VS. ELLIOTT. 525

tickets by the box for Presidential electors, and every white man that voted the Dem-
ocratic ticket that day in my presence took the ticket from that table, folded ami de-
posited them in the box, voting for Win. Elliott and the Presidential electors, Demo-
crat ic.

Q. Will you take the poll-list placed in evidence and state therefrom the names of
the white men who took the Wm. Elliott tickets from the tablo and voted that day
as you described? A. They are S. B. Sanders, Jas. Gabagan, D. J. Chaplin, J. B.
Ilickmau, B. P. Hooker, R. P. Sanders, Wm. Fuller, Win. Sallibauk, H. D. Bodiford,
J. P. Slattery, R. B. Grant, C. A. Savage, C. C. Jones. I have stated that there were
10 white men who voted at Green Pond, but on going over the list again I found that
1 was mistaken ; there are only fifteen white men's names on the list, and I do swear,
to uiy knowledge, that fourteen of them are white. I do not know the fifteenth man,
N. V. Robinson, as I did not see him vote.

Q. As to the colored voters who voted there that day, state if any of them voted
tin- Elliott ticket and their names. A. After I found the Elliott tickets on the table
1 sat there the entire day to see whether any colored voter would have taken any of
the Elliott's tickets from the table and voted it. One man, John Lessington, came into
the room without a ticket ; the managers asked him if he wanted to vote ; he said yes,
but had no ticket. We asked him then whether he wanted to vote a Democrat or
Republican ticket ; he said he wanted to vote a Republican ticket ; this was alter he
was already sworn ; the managers thereupon allowed him to go out and get the Repub-
lican ticket, and he came back and voted it. Later on John Mustipher, a colored man,
took a Democratic ticket from the table and voted it, and he is the only colored man
that I saw who voted the Democratic ticket that day, that is, taking it from 1 the
table.

The testimony shows that the election was held at a private house, a
different place from that at which it had been held at previous elections;
that the poll was opened before the legal hour; that the managers
of election refused to exhibit the inside of the box to the United
States supervisor; that unregistered Democrats were permitted to vote;
that the total number of names on the poll-list of those voting was 286,
and that there were, at the close of the polls, 659 ballots in the Con-
gressional box, 73 being Presidential tickets, and 586 Congressional
tickets. Of these, the 73 Presidential tickets were destroyed, and 300
ballots were drawn out.

That these ballots were placed in the box before the election com-
menced admits of no reasonable question. They were so folded as to
be easily known. The managers were all friends and partisans of con-
testee. They resorted to stratagem to have the polls declared open
before the United States supervisor could get into their presence, and
so have an excuse for not exhibiting the box to him. Only 2 votes are
claimed to have been cast previous to the demand of the supervisor to
havii the box opened. One of them, that of Strobel, the decoy, and
the other, that ot Kobertson, an unregistered voter.

The United States superv.sor is on hand an hour and a half before
the time for opening the polls. When the time approaches he is told
that the election will be held at Sannders's store, the usual place; Stro-
bel goes to the store, opens the door, places a table in position for the
boxes, and arranges things preparatory for the election; he then steps
out through the back door, into a back yard, and then into the back
door of Hickman's house, where the election was actually held. The su-
pervisor, on the watch for tricks, follows as fast as possible, followed
ny the voters; before he reaches tlickmau's, Strobel comes out of the
front door and announces that the polls are open, and the election man-
agers announce that Strobel and Kobertsou have voted. All of the
election managers, the clerks, and the marshals, all Democrats, went to
the polling place the night before, and remained in Hickman's house
over night.

The managers of the election were called as witnesses, and while
claiming that the box was exhibited to the voters present they confirm.

O'JU MILLER VS. ELLIOTT.

fully the testimony of Brown. The " voters present" were these Dem-
ocratic election officers, who no doubt did exhibit the box to each other.
The action here is almost identical with that at Gloverville. In ad-
dition to the testimony of Brown, the supei visor, contestant introduced
Singleton (p. 92), Scott (p. 94), Myers (p. 284), and two hundred and
thirty-three others, whose testimony may be found on pages 91 to 93
and 162 to 285, from which it clearly appears that Miller received 252
votes at this precinct and Elliott but 16. Kestating the vote accord-
ing to the facts we have up to this point :

Elliott 8,245200=8,045

Miller 7, 983+200=8, 183

Miller's majority 138

Jacksonboro Precinct. The returns from this precinct gave

Elliott 68

Miller 45

Total 113

Aii excess of 70 ballots at this poll was destroyed by the managers.
Here the ballot-box was not stuifed, but what was the equivalent of
ballot-box stuffing was done. The managers emptied the box on the
heads of some barrels standing behind the counter, where the super-
visor had not been permitted to go during the day. The extra ballots
were undoubtedly on the heads of these barrels. When the count was
made it was found that there was an excess of 70 ballots in a poll of
113. Under pretense of complying with the law these 70 extra ballots
were eliminated by the usual method. Such method of disposing of
extra ballots is provided for mistakes, and not for frauds. We quote
the testimony of the supervisor, L. D. Smalls (page 116), who, after the
usual preliminary questions, says :

Q. What official position did yon hold in connection with the election, if any? A.
United Slates supervisor.

Q. Where were you during the day of election ; that is, on the 6th day of last No-
vember ? A. I was in B. Sander's building, where the election was held for Congress-
man from the ?th district and Presidential electors.

Q. State how many boxes were in said building and where they were placed during
said day. A. There were two boxes situated on a counter; the box for Presidential
electors was on theleltof any one coming in the door with his face to the boxes, and
the box for Congressman was on the righr.

Q. Who was the o>her U. 8. supervisor for Jacksonboro'? A. C. W. Butler.

Q. Did" you keep a poll-list of those who voted on said day at said election? A. I
did, and 1 now have it with me.

Q. Please produce it and place it in evidence.

(Objected to on the ground that the law does not require the U. S. supervisor of
electiou to keep a poll list.)

A. Poll-list, marked with Maj. Ho well's initials, placed in evidence [marked Ex-
hibit A].

Q. How many names are there on said poll-list ? A. 113.

Q. Were you present when the votes were canvassed at the close of the election ?
A. Yes, sir.

Q. Were there as many votes or more votes in the Congressional box than there
were names on the poll-list at said count? A. Yes; there were seventy (70) more
ballots in the box than there were names on the poll-list.

Q. Do you know how the seventy (70) extra votes got in said box? A. I do not.

Q. Was there any difference between the paper on which the name of T. E. Miller
was printed and the paper on which the name of William Elliott was printed? A.
No, sir ; but in the printing the words on the Miller ticket were far apart and on the
Elliott ticket they were close together.

Q. Where were the boxes and votes placed during the count? A. After they com-
menced to count tLere were two barrels behind the counter, and they emptied all the
votes on the barrel heads and commenced to count from there.

MILLER VS. ELLIOTT. 527

Q. How far were the barrels from the counter where the boxes were during the
day? A. About three (3) feet from the counter.

Q. How wide was the counter ? A. About two feet and a half wide.

Q. Were you behind the counter during the day f A. No ; I was on the opposite
side from the barrel all day.

Q. Did you ask permission to go behind the counter during the count? A. Yes, I
did; but the managers objected to my doing so.

Cross-X :

Q. Could you see all that was going on during the count ? A. I could see the count-
ing, but could not see the names on the tickets.

Q. How far were you from the managers while the count was going on? A. I was
about rive feet from the managers during the count.

Q. Were you present when the result of the election was declared ? A. Yes, sir.

Q. Did you Mgn the Federal supervisor's return ? A. I signed it under protest.

Q, Were you torced to sign it ; did any say that you had to sign it ? A. Yes, sir;
L. li. Ackernian, one of the managers at said election, said I must sign the return,
that the law required it, and I told him I had not seen the names on the tickets as
they were being counted, and Mr. Bntler said I could sign and say that 1 signed under
protest. (Mr. Butler was the Democratic supervisor.) A man by the name of Sim-
mons, a State constable, when I said to Mr. Ackerman that I could not see the names
on the tickets, said, "Go on with the count, and if this da am supervisor says much
I will put him in jail." For that reason I said no more.

Q. Did you say that you could read and write? A. Yes, I can.

Q. Were you not furnished with the law informing you of the duties of the super-
visor? A. Yes, sir.

Q. Did you read them ? A. Yes, I read them, and called the managers' attention
to them, too.

Q. What wore your duties? A. My duty was to keep a strict notice and see that
no violation of law while in counting the votes.

Q. D,d you make any report to the chief supervisor of any wrong that took place
under your observation during the day of the election ? A. I did make a report to
the supervisor, but not informing him of the wrong.

Q. Then your report to the supervisor was the same as the managers of election ?
A. Yes.

Q. Did you have a full turn-out of the Republican voters of this poll on the day of
the election ? A. Not as general.

The validity of the count and return having been destroyed each
party is left to prove his own vote, so far as he is able. Contestant
proves by calling the voters (pp. 97-124) that 67 of them, whose names
all appear on the poll-list, voted for him. Under a strict rule of law
the whole return would be rejected, and 67 votes allowed to contestant
on the proof. In his original brief filed with the committee, contestant
conceded to contestee 46 votes, the remainder of the 113 not proven
to have voted for contestant ; and for that reason, and because it is
now only a question of the amount of contestant's majority, we state
the vote as in this brief:

Elliott-'s vote by last statement 8,045

Deduct difference between vote as returned, and as stated in brief 22

And we have for Elliott 8,023

Add j to Miller (8183 + 22) 8,205

Miller s majority 182

Counting the vote according to the strict rule of law, under the evi-
dence, would make Miller's majority 228.

BEAUFORT COUNTY.

Port Royal. The returns from Port Eoyal are :

Elliott 199

Miller 14

Total ,. 213

MILLEK VS. ELLIOTT.

Fifty-one witnesses (pp. 128-160) testify that they voted for Miller,
and their names are all on the poll list as having voted. This evidence
stands uucontradicted. Duly qualified voters were refused permission
to vote, and names of Democrats are on the poll-list as having voted
who had moved away, and were not present at the election, thus fur-
ther discrediting the returns.

Giving Miller the 37 votes proved and not credited, and deducting
a like number from the 199 returned for Elliott, as the vote is stated in
contestant's original argument, and we have:

Elliott 8023 37 = 7986

Miller 8205 + 37 = 8242

Miller's majority 256

Counting, according to the strict rule of law, only such votes as are
proves by the evidence, Miller's majority would be 464!

BERKELEY COUNTY.

St. Stephen's. The poll-list of St. Stephen's shows that 310 persons
voted. Only 285 are returned as voting for Representative in Congress,
and a like number for Presidential electors (pp. 600, 6C2, 603).

It is evident that 25 votes have been lost here by being deposited in
the wrong box. Eighty-one qualified voters, whose names appear on
the poll-list, testify that they voted for Miller (pp. 52-68 and 74-86).
Xo attempt is made to sustain this return, and, under the evidence,
Miller is entitled to be credited with 81 votes, or 75 more than were
given him in the returns. Deducting 75 from Elliott's vote, according
to the statement in contestant's brief, we have :

Elliott 7986-75 = 7911

Miller 8245+75 = 8317

Miller's majority 406

Following the strict rule of law, and allowing only the vote proven
after rejecting the returns, makes Miller's majority 818.

ORANGEBURGH COUNTY.

Evans's Mill precinct. At Evans's Mill the managers return 415 votes
cast, cred ting Elliott with 390 and Miller with 25.

According to the testimony for contestant there were over 100 more
ballots in the box than names on the poll-list.

The testimony of T. T. Green (p. 316) shows that the box had been
stuffed by the managers or some other person. The managers were all
partisan friends of contestee. According to Green's testimony the man-
agers knew without counting that there was an excess of tickets, for
they immediately destioyed 1 25, and then, upon counting the remainder,
found that they had destroyed 7 too many. To restore the 7 which were
necessary to make up the full vote, 7 each of Democratic and Republican
tickets were put into a box, and 7 of these 14 were drawn out and put
with the other tickets.

The managers of the election are called, and acknowledge the destruc-
tion of some tickets, and the unlawful method of making up the defi-
ciency after too mny were destroyed, but deny that there were so
many as stated by Green ; upon this question there is a conflict, but
upon another there is not. One hundred and forty-two of the voters,
whose names all appear on the poll-list, were called as witnesses (pp.

MILLER VS. ELLIOTT. 529

414-476) and 136 of them testify to having voted for Miller, conclusively
proving the falsity of the return and the fraud perpetrated by the
managers. This would give Miller 111 more than are credited to him,
and conceding to Elliott the remainder of the votes cast in accordance
with contestant's brief we have :

Elliott 7911111=7800

Miller 8317+111=8428

Miller's majority 628

Or, rejecting the fraudulent return, and counting only the votes
proven, and we have Miller's majority 1,319.

HIGHLAND COUNTY.

Eastover precinct. No returns were made from this precinct, and it
was not included in the certified result. M. Johnson, the Eepnblicau
supervisor, testifies (p. 319), that the Miller tickets were printed on
coarser and darker paper than the Elliott tickets, and that when folded
by the ticket distributors, Miller's name could be seen ; that the name
was printed in larger letters than Elliott's name; that he watched the
voting and kept a tally of the voters, and that Miller's vote was not less
than 248, nor more than 257 (some tickets not certain), and that Elliott's
vote was from 83 to 92. The managers shifted the boxes two or three
times, and in doing so removed them from the sight of the supervisor,
to which he objected ; and he believes other boxes were substituted at
one of thes* 1 shiftiugs.

H. W. Woodard (321) testifies to folding the Miller tickets so that
the name was in sight and to the description of the tickets, the same as
Johnson.

One hundred and ninety-seven colored voters testify to having voted
for Miller (pp. 478-570). Forty-two affidavits of other voters were filed
with the committee to the same effect. These voters' names are all on
the poll-list kept by the supervisor, showing 385 votes cast, 298 by col-
ored men, 11 of which were Democratic. Aside from the testimony of
the supervisor, which shows pains-taking care, there is positive testi-
mony taken in due process of law, of 197 voters who cast their ballots
for Miller. As we have said, no return for this precinct ever reached
the county board.

J. C. Eason (332), the Democratic supervisor, confirms Johnson as to
the managers shifting the boxes, as to the whole number of votes
cast, and as to Johnson's keeping a poll-list, and as to his being present,
all the time, and in a position to see each vote when deposited. He also
says that the colored voters in this district largely preponderate, at least
two to one, and that when the colored men vote they mostly vote the Re-
publican ticket. He did not keep a tally when the vote was counted, did
not keep a poll-list, did not watch the tally nor notice the names on the
tickets when they were being counted ; in other words, did nothing that
was required of him as a supervisor, but, after the managers had made
up their return, he took the tally and made his return from that, without
any knowledge whether it was right or wrong. According to his report
the vote was :

Elliott... 262

Miller 87

Simmons 36

Total 385

H. Mb. 137 34

530 MILLER VS. ELLIOTT.

The commissioner of elections says that no return was made, but that
an unsigned statement was found in the box returned, which was not
counted. This statement was sent to the secretary of state, with all
the papers except ballots, which he did not consider it his duty to
count.

C. TL Marshall (335) testifies to the' same vote as that given by the
Democratic supervisor.

Says he made out the return on the back of an envelope, put it in his
pocket, and has kept it there ever since. He testifies to destroying
some votes, and then having as many left as there were names on the
poll-list. We give some extracts from his testimony, illustrating his
idea of an honest election :

Q. For what purpose were these boxes transposed and in what manner ? A. When
we made the first change Meshoch Johnson, the Republican supervisor, spoke to a
voter and told him to tell them outside about the position of the boxes. I called his
attention to the State law forbidding any one to speak to voters. He then got to
sending notes out by voters, trying to give them to voters surreptitiously. The boxes
were changed several times in consequence of this U. S. supervisor trying to defeat
the election laws, thus trying to give his party an undue advantage.

Q. In making these sniftings or transpositions of the boxes how much time was
required to do sot A. It was instantaneously. Often we would say aloud, "Let's
change position of these boxes."

****** *

Q. Did you reside in the ?th Congressional district at the time of the election
spoken of ? A. No, sir ; on the edge of it.

Q. Did you ever live there ? A. No ; a road divides me.

Q. How far is your residence from Eastover ? A. It was 20 miles.

Q. Who were the other managers of election with you ? A. W. S. Taylor and J. E.
Touch berry.

Q. You were all Democrats? A. I think so.

Q. What concern was it of yours as a manager of election if one of the super-
visors did write notes to persons outside of the room ? A. If as an officer he had the
right as a partisan in the interest of his own party, I think I had aright to upset his
plans and transposed the boxes.

Q. Was it your place as a sworn officer of the election to make yomself a partisan
for the purpose of counteracting the partisan action of any one else ? A. No ; trans-
posing boxes affected both parties ; there were many negroes who couldn't read that
voted the Democratic ticket. The law requires the managers to read to the elector
when he goes to vote the name on the box if he demands it. On one or more occa-
sions during that day I was called upon to read them, and did so for the voter, and
nobody else was allowed to give any information.

Q. If the changing of boxes would make no difference in the relative vote of the
parties, why did you transpose them for the purpose of antagonizing the Republican
supervisor ? A. It was a matter a byplay between, and we made it a matter of joke.

Dealing with this vote in the manner most liberal to contestee, the
least we can give Miller is 239, and the most we can give Elliott is 110.

Elliott 7800+110=7910

Miller jt 8428+239=8667

Miller's majority 757

Or by the count made by the strict construction of the law, Miller's
majority is 1,448.

BERKELEY COUNTY.

Ben Potter precinct. In this precinct there is a difference between
the return of the United States supervisors and that of the precinct
managers; the supervisors returning 41 as voting, and the managers
141. The evidence here is conflicting, and we do not find it necessary
to decide which is the true return. The same is true of Privateer pre-
cinct, Sumter County, where Elliott is returned by the managers as re-
ceiving 130 votes, and by the supervisors as receiving 88.

MILLER VS. ELLIOTT. 531

Cooper's Store precinct. Here the managers counted 94 for Miller
and 96 for Elliott. The evidence satisfies us that the count was a gross
fraud boldly perpetrated, by which a large number of Miller tickets
were counted and tallied for Elliott by the managers of the election, but
it is impossible to ascertain the amount of the fraud from the evidence
and we can only reject the whole return, which only change's the result
two votes.

Other allegations are made, and proof taken in regard to them, such
as failing to hold election at large .Republican precincts, etc., but we do
not deem it nesessary to make further comment on the record. The
frauds, false returns, and ballot-box stuffing which we have detailed
are so conclusively proven, and the true vote so well established in the
various precincts noticed, that there is left no room to doubt that
Thomas E. Miller was legally elected, and was, through the crimes of
election managers in the Seventh district of South Carolina, deprived
of a certificate of election. We therefore recommend the adoption of
the following resolutions:

Jtesolved, That William Elliott was not elected a Eepresentative in
the Fifty-first Congress from the Seventh Congressional district of
South Carolina, and is not entitled to retain a seat therein.

Resolved, That Thomas E. Miller was duly elected a Eepresentative in
the Fifty-first Congress from the Seventh Congressional district of
South Carolina, and is entitled to his seat as such Eepresentative.

VIEWS OF THE MINORITY.

(1) Begistration and election law.

The registration and election laws of South Carolina are reasonable
and constitutional, and there is nothing in the evidence to sustain the
conclusion of the committee that they are executed in an unfair or par-
tisan manner.

(2) Shifting of ballot boxes justifiable.

The section of the election law which provides for a number of ballot
boxes plainly labeled for the different offices, and requires that the voter
shall be separated from others, and not spoken to by anyone except
the judges while at the polling place depositing his vote, is well calcu-
lated to carry out the provision of the constitution that the voter shall
be protected from "An undue influence from power, bribery, tumult, or
improper conduct" and to protect him in his right to a secret ballot.
If the voters were found to be receiving information from outsiders
which they were required to receive from the judges, "If the wise pro-
visions of this law were being interfered with, and rendered nugatory
by any outsider at any poll, or if it came under the observation of those
selected to supervise the execution of this law that its letter or inten-
tion or spirit was being violated, we submit it was the duty of the man-
agers to shift the boxes, or perform any other legal act, to subserve its
proper execution."

(3) The evidence relied on by the committee to establish the true vote
in the boxes alleged to have been stuffed is untrustworthy and insuf-
ficient, and in some cases incompetent.

533

VIEWS OF THE MINORITY.

JULY 1, 1890. Mr. WILSON, of Missouri, from the Committee on Elec-
tions, submitted the following as the views of the minority :

The undersigned, minority of the Committee on Elections, being un-
able to aeree with the majority of the committee in their conclusions
in this case, dissent therefrom, and present the following views.

At the general election in South Carolina for President and members
of Congress on the 6th day of November, 1888, William Elliott was
the Democratic, and Thomas E. Miller was the Republican candidate
for Eepresentative in Congress from the seventh district in that State,
and the former was declared elected, having received 1,353 more votes
than Miller, and having been granted the certificate of election now
represents that district in the House of Representatives. The counties
comprising that district, and the number of votes cast for each of the
candidates, appears in the following table :

Election returns, seventh Congressional district.

Counties.

William
Elliott.

Thomas E.
Miller.

Robert
Simmons.

808

2 056

1,753

1 547

143

652

210

821

957

987

310

367

222

1,782

933

1,053

624

8,358

7,003

The first of the many errors contained in the report of the majority
of the committee are found in the following statement on page 2 :

An examination of the description of the district in the Congressional Directory
will show that its contiguity is secured by putting into it the sea beach of Charleston
County, a strip of sand a few feet wide and many miles long, covered half of every
day by the waters of the Atlantic Ocean and incapable of human habitation. All the
habitable main-land of this county is in another district.

As to the point of contiguity an examination of the map will show
that -all the land on the south side of Charleston harbor, consisting
chiefly of James Island, is in the seventh district, while directly op-
posite, on the northern side of the harbor, lies Berkeley County, all of
which, excepting the village of Mount Pleasant, is in that district. With

535

536

MILLER VS. ELLIOTT.

equal force might the majority claim that each of the many navigable
rivers flowing through the district destroys its contiguity.

More striking is the error of the majority as to none of the " habita-
ble' 7 part of Charleston County being in the seventh district. Imme-
diately before this assertion appears a statement of the vote in the last
election, and we find the following :

County.

William
Elrlott.

Thomas E.
Miller.

Charleston..

143

ELECTION BY CENSUS.

In proceeding to elect the contestant by the census the majority gives
the population and voting strength of the district in 1880, and making
out a colored majority of 25,000 votes, say :

It is therefore safe to say, unless the mass of colored voters have ceased to take an
interest in political matters, that with laws bearing equally on white and black, and
with anything like a fair election, the Republicans of the seventh district would poll
four times as many votes as the Democrats, and would have anywhere from 15,000 to
20,000 majority.

The history of the district as it has come before former Congresses, and as it is pre-
sented in this record, precludes the belief that its colored men have to any consider-
able extent ceased to be interested in elections, especially Presidential and Con-
gressional elections.

Apart trom the otherwise well-established fact that "the mass of
colored voters have ceased to take an interest in political matters," the
census, in connection with the vote in this case, gives irresistible force
to that conclusion. Take Georgetown County, for example. The census
gives:

Population and number of males of voting age classified by race according to census of

1880.

County.

Total.

White.

Colored.

Males 21 years of
age and over.

White.

Colored.

19, 613

3,466

16, 147

852

3.449

The vote was as follows:

County.

Elliott.

Miller.

Total.

821

957

1,778

2,523

4,301

Now, in contestant's notice of contest Georgetown is not mentioned.
There is no complaint that the supervisor of registration neglected or
refused to register any applicant, nor that the managers of election, one
of whom was a Republican at each precinct, refused any one the right
to vote, and yet we find that out of 4,301 persons of voting a*ge, in a
county where there are five times as many colored as white people, no
less than 2,523 failed to vote. No explanation can be given of this ex-

MILLER VS. ELLIOTT. 537

traordiuary result except that the mass of colored voters have ceased
to take an' interest in political matters.

In addition to this there is abundant proof throughout the testimony
that colored men voted for contestee.

As to the table of population and men of voting age given by the
majority, a careful examination of the books of the last census fails to
disclose any such table.

-THE ELECTION LAW.

In speaking of the election and registration of South Carolina, the
majority say

That this law was enacted for the deliberate purpose of indirectly disfranchising,
so far as possible, the colored voters of the State, admits of no serious question.

We deny the allegation, and on our part allege that there is nothing
in the law itself, nor in the evidence in the case from beginning to end,
to justify it. Let it be remembered in this connection that the consti-
tution of that State was framed by a Republican convention in 1868;
that it required the legislature to enact a registration law, which the
Republicans of that State for more than five years prior to their being
driven from power in 1876 by the honest people of that Commonwealth,
irrespective of party, utterly refused to pass, because, we presume, it
would be an obstacle in the way to retention of power and the further
wrecking of the State.

THE LAW CONSTITUTIONAL.

It is also held by the majority of the committee that " there is no valid
registration law in South Carolina;" that the said laws are unconstitu-
tional for various reasons stated in their report, and in support of this
theory substantially alleges: (1) That as the letter of the law prescribes
but one time for a qualified voter to register, he is disfranchised if he
fails to obey the law; and the like is the case as to minors coming of
age, and others afterwards becoming qualified voters, and who decline
to obey the law as to the time required to register.

Now, a sufficient answer to all this, so far as the determination of this
case is concerned, is that section 105 of the Revised Statutes requires
the contestant to give notice of contest and "shall specify particularly
the grounds upon which he relies in the contest." It has been deter-
mined over and over again that no point not made in the notice can be
considered by the House. No such ground was specified, and it can
not now be relied on, and its introduction here does but encumber the
record and is wholly irrelevant.

It may further be answered that in the evidence taken herein there
is no proof that this law was acted upon in the strict interpretation
given, and therefore there is no proof that this requirement lost to either
party a single vote.

The majority of the committee can hardly be serious in its declara-
tion that the law is unconstitutional because it affixes " a like penalty
for parting with or destroying a registration certificate ; " the law car-
ries upon its face a sufficient refutation of the charge, if seriously made.
The majority say:

But they give such, latitude to the supervisor of registration as will enable him to
take good care that none of his political friends shall suffer the penalty.

The implication contained in this paragraph is altogether gratuitous,
and as such we dismiss it.

MILLER VS. ELLIOTT.

OBSTRUCTION TO REGISTRATION.

Under this head the majority says :

In many counties a diligent search on the part of Republicans fails to discover the
supervisor's office, or, when it is found, so many hindrances and obstructions are in-
terposed that voters fail to get transfers or registry, although they apply at every
opportunity, during every month of registration in the year of a general election. In
some large precincts no one has been able to secure a transfer since the general registry
in 1882.

We challenge contradiction of the assertion that in no county but
Colleton is any charge made by the testimony that the supervisor's
office could not be found. As to that county, the majority cite the tes-
timony of K F. Myers (p. 95), I. H. Chapman (p. 92), and W. B. Scott
(p. 94).

Myers says:

I inquired at the offices located in the court-house, but none could or would say
where he was located, excepting Auditor Smith, who said he (meaning the supervisor)
came into his (Smith's) office, but he could not tell me if he had a permanent office.

It will be noted that Myers did find the office, but was not satisfied
unless it was a "permanent" one. He does not claim to have gone on
any day fixed by law for the supervisor to be at his office, and hence
did not find him.

W. B. Scott says:

I went there the first Monday in last March, and as I went I took my registration
certificate with me to see whether I could get it changed from Jacksouboro to Green
Pond, and as I went up I ask Jackson Grant what time the supervisor will be in and
whereabout he held his office; he told me to go to the court-house and I would find
out, and I went over and saw the auditor; Mr. Smith told me where the office of the
supervisor was; he said sometimes he comes in here, and moreover I have not time to
bother with you. Then I came on back home and after I came back I wrote a letter
to Major Myers.

So it seems Jackson Grant knew where the office was, and Mr. Smith
told Scott where it was, just as he had previously told Myers.
Now, when I. H. Chapman testifies, he says:

1 inquired for the office of the supervisor of registration; I inquired of Mr. Myers
and Jackson Grant, but I could not find the office.

He inquired of both Myers and Jackson Grant, who knew that the
office was the same as Auditor Smith's, and they must have told him
where it was, and he did go to the court-house, but does not say a word
about going to the auditor's office, contenting himself with looking for
a " sign" and looking into some of the rooms, without ever asking any
one which the office was.

As to the general charge of obstructing the registration of Kepubli-
cans while facilitating that of Democrats, a careful examination of the
testimony of these witnesses shows that not a name of a Republican de-
nied registration is given except that of W. B. Scott, who says he
wanted his certificate changed from Jacksonborough to Green Pond, and
could not get it done, but it appears by the poll-list of Jacksonborough,
p. 627, that Scott was the ninety-first voter at that precinct, which es-
tablishes, first, that his vote was not lost, and secondly, that he had no
right to a transfer to Green Pond. No other name is given. Myers
says he had the affidavits of one hundred and fifty persons desiring
registration, and Scott says he had forty, but the law requires that
the applicant must " appear," and no one can seriously contend that

MILLER VS. ELLIOTT. 539

any registration law should allow registration upon affidavit. As to
favoring Democrats, Myers says on cross-examination :

Q. Do you kuow of your own knowledge any Democrats who registered at any time
other than the time provided for by law? A. Of my own knowledge I can not say.

Q. Who were the parties that told you that they had urged to register just prior to
the day of election? A. I decline to give their names for the reason that under the
iutolerent system practiced they would be doomed to social as well as political ostra-
cism.

Q. Do you know of any one in Colleton County who has been doomed socially or
politically on account of their politics? A. If I can not a particular one, through
the teachings of leading Democratic orators made on the husting, they have taught
members of their party to believe that in the South, at least, it is a social question
and all others are subservient.

Q. Does the Republican, practice the same ostracism ? A. So far as I know they
do not, for in the town in which I live their are colored Democrats with whom I and
other Republicans are on the most pleasant terms.

G. A. Beach, the supervisor, says (p. 293) :

Q. Have you during the last four years opened your books for registration at any
of the precincts named in your examination and notified the citizens of either of those
precincts of your appointment to appear before you as supervisor of registration for
the purpose of renewing, transferring, or for original registration ?

(Objected to on ground that there is no provision of law by which any such ap-
pointments could have' been made.)

A. I have not, but did open my office at the C. H., as required bylaw, for registra-
tion and renewal of certificates.

****

X ex. :

Q. You have stated that no renewals have been made by you of registration efts,
of voters at the precincts named. Will you state whether any applications have been

made for such renewals? A. There haven't been any made.

* * * # #

Q. Did you have an office at the court-house? A. I did.

Q. What office did you use? A. The auditor's office.

Q. Were you in your office every day that you were required to be there by law for
the purpose of attending to the duties of registration? A. I was, except one day I
was sick.

At page 374 he further testifies :

Q. State your age, occupation, residence, and where you were on the 6th day of
Nov. last. A. Age, 30 years; lawyer, and resides about 6 miles from Walterboro.

Q. Do you hold any official position in the county of Colleton? A. I do; lam
supervisor of registration.

Q. Have you an office at the court-house? If so, state where it is located. A. I
have one, and hold it at the auditor's office in the court-house.

Q. Why did you occupy the county auditor's office ? A. Because it had been occu-
pied by the other supervisor, and there was no other office that I could get at the
court-house, and the auditor oftered me his office.

Q. Did yon open said office for the business pertaining to your duties on each and
every day required of you by law? A. I did, except one day that I was sick.

Q. Do you remember what day that you were sick? A. I do not; it was the first
Monday in March or the first Monday in April.

Q. How long have you held the office of supervisor of registration ? A. Between
three and four years.

Q. Have you always, and since your appointment to said office, occupied county
auditor's office? A. I have.

Q. Have you always kept your records and books in said office? A. I have.

Q. Have you, since your appointment to said office, offered every facility for the
registration and renewal of lost certificates to voters ? A. I have so far as the law
required.

******

Q. When you were at Walterboro, on the days required of you by law, and when
yon were not in the office, were you around on the court hill where you could be seen
by any person who may have had business with you ? A. I was; during the time I
was absent from my office I was around the court'hill where I could be seen.

Q. Then no one was turned oft' by you from the seventh Cougr ssional district who
desired to register or have their certificates renewed ? A. No one at all.

So much for Colleton County.

540 MILLER VS. ELLIOTT.

As to Orangeburgh County the majority rely on the testimony of E.
A. Webster, a part of which they give. A careful examination of his
whole testimony shows that, happening to meet the supervisor on the
street after the first Monday in August, when he admits that by law
the books were then closed, he applied for transfer and renewal cer-
tificates for other persons, which he also knew was illegal. Much of
his testimony is admittedly hearsay, and his cross-examination closes
as follows :

Q. Give me the name of any Republicans who applied for registration from the
first Monday in Jan'y, 1887, to the first Monday in July, 1888, who were rejected, and
when, in the 7th Cong. dist. A. I will give one as a special case; Gadsden McFad-
den, a voter in first dist. I can not give the names now, nor date, but I have them
on record at my home in Orangeburg.

Q. Then yon can not swear, on personal knowledge, to one who was rejected before
June, 1888, who applied in person, according to law f A. As above stated, I can not
give the names now. I can not give the name.

E. A. WEBSTER.

The only person named was a voter in the first not the seventh
district. The foregoing four witnesses are all whom the majority refer
to, and yet they do not hesitate to say:

By means detailed by these witnesses, thousands of Republicans of the seventh dis-
trict were deprived of such certificates of registration as the managers would recog-
nize.

BALLOTS IN WRONG BOX.

We come now to the consideration of that clause of the statute of
South Carolina providing for the labeling of the ballot-boxes, and the
numbers thereof, and in this connection to the allegation " that it makes
an educational test, and therefore is in direct violation of the constitu-
tion of the State." It is proper here to observe that the law in refer-
ence to the number of boxes prevailed in that State prior to 1861. and
therefore it will hardly answer the purpose of the majority of the com-
mittee in this case. The proof shows that the law was strictly complied
with in labeling the boxes for President and member of Congress in plain
and distinct Roman letters.

There was no dishonesty proved; no failure to discharge their duty
on the part of any of the election officers, the only complaint being that
the tickets for member of Congress found in the Presidential box were
destroyed, no matter who they were cast for, contestant or contestee,
as appears in the evidence of one of contestant's witnesses, one Law-
rence Brown, page 14 of the record. He was interrogated on cross-
examination by Mr. Gilland:

Question. How many of Mr. Elliott's votes were found in the Presidential boxT
Answer. Twenty-one.

Q. Those were thrown out and not counted f A. Yes, sir.

It seems there was no deviation from this rule, and the law was en-
forced to the letter in this regard with the utmost impartiality.

The Impression is sought to be made that there were six or seven
boxes all together at the same place, and the managers kept moving
them about, and mixing and shuffling them up like a deck cf cards, and
the managers, when called on to know the boxes by the ignorant voter,
so as to know where and in what box to deposit his ballot, as he was
bound to do under the law, utterly refused to read to him the names
on the boxes. The evidence fails to support this. As a matter of fact,
there were but two boxes at the places designated for the reception of
votes for President and members of Congress.

MILLER VS. ELLIOTT. 541

The constitution of South Carolina, section 33, article 1, heretofore
cited, requires that the right of suffrage shall be protected by laws
regulating elections, and prohibiting, under adequate penalties, all un-
due influences from " bribery, power, tumult, or improper conduct." It
also provides that right of suffrage shall be exercised by ballot. The
object in the laws in all the States which provide for the ballot is to
have the exercise of the right to vote a secret, unknown to any but the
voter himself, and for the best of reasons. The fact that the intention
of this law is often thwarted in the heat of a political campaign is un-
fortunately true, but not more so in South Carolina than in Massachu-
setts or Illinois; in fact, we feel justified in affirming that the election
laws of the former State are better calculated to protect the voter in
the free exercise of the right to vote a secret ballot and thus express
his own preference to the exclusion of that of others, than in most of
the States of the Union.

It would be difficult to design an election law better calculated to pro-
tect the voter from " an undue influence from power, bribery, tumult,
or improper conduct" than the law of the State now under considera-
tion. It was mandatory on the legislature of that State to do so, and
in so doing it devised a code of rules most admirably adapted for the
purpose.

The law requires the voter to go alone to the polls, unattended by the
worker, and protected from the bulldozer and the heeler, paid possibly
to force him to express by his ballot another's will, and not his own.
On reaching the polls he does so a free man, relieved from all coercing
influences ; no one is permitted even to touch his white ballot but him-
self; the boxes are before him, properly labeled, and if he wants in-
formation on the subject there are sworn officers of the law there to give
it to him under the mandates of the law ; and then, with his own hand,
he deposits his vote in a securely locked box, and thus, free and un-
trammeled, gives, expression to his own will. If the wise provisions of
this law were being interfered with, and rendered nugatory by any out-
sider at any poll, or if it came under the observation of those selected
ro supervise the execution of this law that its letter or intention or
spirit was being violated, we submit it was the duty of the managers to
shift the boxes, or perform any other legal act, to subserve its proper
execution.

The subject of a "free ballot and a fair count" has long engaged the
anxious attention of those who view in the increasing prostitution of
the ballot, year by year, a grave menace to republican institutions upon
this continent. Scarcely a session of the legislature in the various
States transpires, that this subject is "not the object of serious consid-
eration. The miserable spectacle presented at every Presidential elec-
tion throughout the country, at thousands of its polling places, of long
lines of men forced by dire circumstances to surrender their right of
suffrage and their manhood to others, and permit themselves to be
marched to the polls from workshop, forge, mine, and factory, and the
unlimited employment of money and other modes and methods of the
"greatest managing politicians of the land," is fast bringing about a
revolution in the election laws of the country.

The election laws of South Carolina have blazed the way to genuine
reform. It is the skirmish line behind which comes to do battle purer
methods and greater protection from " all undue influence from power,
bribery, tumult, or improper conduct." Many of its features have been
adopted in the States where what is known as the Australian system of
voting now by recent enactment obtains.

542

MILLER VS. ELLIOTT.

For the benefit of the majority and any others who may be horrified
and indignant because the law of South Carolina refuses to permit the
political bummer and hired swashbuckler to attend voters to the polls
to help them vote, and makes him rely on himself, and protects him in
so doing, *re here quote some of the provisions of a law recently enacted
in the State of Missouri and other States, and known as the Australian
system of voting, and which justified in their practical operations the
high encomiums passed upon them by those sincerely desirous for a
"free ballot and a fair count."

SEC. 24. On any day of election of public officers in any election district, each
quail lied elector shall be entitled to receive from the judges of the election one
ballot. It shall be the duty of such judges of election to deliver such ballot to the
elector. * * *

SKC. '25. On receipt of his ballot the elector shall forthwith and without leaving
the polling place retire alone to one of the places, booths, or compartments provided
to prepare his ballot. He shall prepare his ballot by crossing out therefrom the
names of all candidates except those for whom he wishes to vote, or in case of a
ballot containing a constitutional amendment or a question to be submitted to the
vote of the people, by crossing out therefrom parts of the ballot in such manner that
the remaining parts shall express his vote upon the questions submitted. After pre- v
paring his ballot the elector shall fold the same so that the face of the ballot will be
concealed, and the signatures or initials of the judges maybe seen. He shall then
vote forthwith and before leaving the polling place.

SEC. 26. Not more than one person shall be permitted to occupy any one booth at
one time, and no person shall remain in or occupy a booth longer than may be neces-
sary to prepare his ballot, and in no event longer than five minutes.

SEC. 28. Any elector who declares to the judges under oath that he can not read or
write, or that by reason of physical disability he is unable to mark his ballot, may
declare his choice of candidates to either one of the judges having charge of the bal-
lots, who, in the presence of the elector, shall prepare the ballots for voting in the
manner hereinbefore provided ; or such elector, after making such oath, may require
one of such judges to read to him the contents of the ballot, so that the elector can
ascertain the relative position of the names of the candidates on each ballot, where-
upon the elector shall retire to one of the places, booths, or compartments provided
to prepare his ballot in the manner hereinbefore provided.

We direct special attention to the following sections:

SEC. 23. All officers upon whom is imposed by law the duty of designating polling
places, shall provide in each place designated by them a sufficient number of places,
booths or compartments, which shall be furnished with such supplies and conven-
iences as shall enable the voter conveniently to prepare his ballot for voting, in which
compartment the electors shall mark their ballots, screened from observation, and a
guard so constructed that only persons within the rail can approach within five feet
of the ballot-boxes, or the places or compartments herein provided for. The number
of places or compartments shall not be less than one for every hundred electors who
voted at the last preceding general election in the district. No persons other than
electors engaged in receiving, preparing, or depositing their ballots shall be permit-
ted to be within said rail, except by authority of election, and except as now by law
otherwise provided. The expenses of providing such places, or compartments, or
guard-rails, shall be a public charge, and shall be provided for in each town and
city, in the same manner as the other election expenses.

Now this law embodying the same ideas and principles as the law of
South Carolina, has never been declared unconstitutional, nor has it so
far as we know ever been questioned. The object of both laws is to
separate the voter when he goes to deposit his ballot from all outside
influence and dictation.

Both laws were made to place the voter on his own intelligence, or on
such information as he obtained from the judges of election or mana-
gers, who are sworn officers of the law.

No better illustration of the wisdom of this law can be found than is
furnished by the evidence in relation to Graham ville and Ladies' Island
precincts in Beaufort County, where a large number of voters, under
the instruction of contestant and others of those voting them, deposited
a Miller ballot in both boxes.

MILLER VS. ELLIOTT. . 543

This was a willful and corrupt violation of the law, knowingly com-
mitted, and the House of Representatives is gravely asked to sanction
and condone it. Grahamville was the home of Miller. He was present
at that precinct a large part of the day, with tickets in his hands and
very active, and voted. The count of the boxes and returns showed
that there were 237 votes polled. Miller received in the Congressional
box 205 votes and in the Presidential 189 votes, and not one solitary
vote was cast for the Eepublican Presidential ticket. Miller himself
forgot to vote for Harrison and Morton, but manifestly cast two votes
for himself.

I. 0. Rue, who had charge of contestant's tickets, gives this explana-
tion of the above p. 452 :

Q. Do you know if the Congressional ticket was voted in the Congressional and
electors' boxes at Grahamville ; if so. by whose dictation T A. In the morning when
I went to the polls and began distributing tickets, I only gave one ticket to each
voter. Some ol the voters called my attention to the fact that there was also a Pres-
idential box, whereupon I gave them another Congressional ticket and told them they
just as well vote that one also, for luck, and continued to do so the rest of the day,
as they did not seem satisfied in voting the one ticket.

The majority of the committee, in speaking of "ballots in wrong boxes,"
uses the following language :

As has been noted, managers of elections are prohibited from counting any ballots
found in the wrong box. At the Federal polls, at this election, there were two boxes,
one for Presidential electors and one for Congressmen. Under the peculiar wording of
the statute unlettered voters are obliged to rely upon those of their associates who
can read to learn how to deposit their tickets so as not to get them in the wrong
box, and so lose their votes. If the two boxes are put into position before the voting
commences, and are permitted to remain during the day, there is little danger of
mistake, all the voters being instructed as to their position by those in whom
they have confidence. But if the boxes are shifted about at intervals during the day
it follows, as a matter of course, that every unlettered voter who goes to the poll after
the change, and before its discovery deposits his ballot in the wrong box, loses
his vote, so far as the count of the managers is concerned. There is no prohibition in
the statute against shifting the boxes, and so it is assumed by the managers of elec-
tions that they have the right to shift the boxes as often as they please, for the express
purpose, as they acknowledge, of confusing the voters and causing them to deposit
their ballots in the wrong box.

We submit that the majority of the committee entirely misconceives
the spirit and meaning of the law. The law on this subject reads as
follows:

At each precinct a space, or inclosure, such as the managers of election shall deem
fit and sufficient, shall be railed off, or otherwise provided, with an opening at one
end or side for the entrance of the voter, and an opening at the other for his exit, as
a polling-place in which to hold the election for the State, circuit, and county officers.
A similar, but distinct, space or inclosure shajl be railed off, or otherwise provided,
as a polling-place for the election of Congressman and Presidental electors, at such
distance from the polling-place for State officers as the commissioners of election for
each county shall determine and appoint for each election precinct. But one voter
shall be allowed to enter any polling-place at a time, AND NO ONE EXCEPT THE MANAGERS
SHALL BE ALLOWED TO SPEAK to the voter while in the polling-place casting his vote.

The italics are our own. Now, what is the object of this law ? Mani-
festly the very same that the Australian system has in view, and which
has been heretofore cited, and which is attracting such favorable at-
tention in the various States, to throw the protecting arm of the law
around the voter, especially the weak and timid; enable him to give ex-
pression to his own will at the polls, and not that of others; in other
words, to shield him, and, in the language of the constitution of South
Carolina, "prohibit all undue influence from power, bribery, tumult, or
improper conduct." Incredible as it may seem, yet our friends of the
majority, because the managers refused to permit the voters to be SPOKEN

544 MILLER VS. ELLIOTT.

to, and directed how to vote by " those in whom they had confidence,"
propose to repeal the law here, ignore the constitution of a State under
the provisions of which this law was passed, and count against their
political enemy, and in favor of tbeir political friend, one thousand votes
cast at the various polls in the district.

One of the witnesses testified that at one of the precincts a man
climbed a tree, and from his perch among the branches directed men
how to vote. Another witness, cited by the majority at page 13, testi-
fies that at a different precinct, Eastover, one of the United States su-
pervisors spoke to and wrote notes to the voters telling them how to
vote ; and all that in the very teeth of the law providing for a barricade
to protect the voters from just such interference, providing but one
man should be in there at the same time, and further providing that
no one should speak to the voter while in the polling-place casting his
vote, except the managers. The indictment thus preferred against the
election and registration laws of South Carolina, and also against the
managers, presumes guilt instead of innocence. And the statement
that " the managers acknowledged that they shifted the boxes for the
express purpose of confusing the voters and causing them to deposit
their ballots in the wrong box," is not borne out by the testimony ; nor
is the further statement that in every instance where the boxes were
shifted " the purpose was unlawful," borne out either by the law or the
facts.

As the majority virtually decides this case against contestee by giving
to contestant 1000 votes alleged to be found in the wrong box, we think
it necessary to examine carefully the testimony. Speaking generally,
we claim, first, that the testimony relied on by the majority is very un-
satisfactory in character, and was given under very suspicious circum-
stances. It was taken about four months after the election, and in one
case only did the witness pretend to rely on anything but his memory;
and yet, as a rule, the witness as to each precinct undertakes to give
from memory the precise vote cast, with exact numbers in the wrong
box. When it is remembered that contestant's attorneys had in every
case certified copies of the manager's returns and poll-lists, it can very
easily be seen how the testimony relied on by the majority could be ob-
tained. Here is a sample. B. I. Fortune, as to Corbett's store (p. 21) :

Q. How many ballot-boxes were at that poll ? A. Two.
Q. How many persons voted at that precinct that day ?
(Objected to on the ground that it does not call for the best evidence.)
A. 199.

Q. How many votes were returned by the managers of election for T. E. Miller?
(Objected to on the same ground.)
A. 79.

Q. How many for Wm. Elliott I A. 91.
Q. How many for both ? A. 170.

Q. What became of the other 29 ballots T A. They were destroyed by the mana-
gers.

Q. Why were they destroyed? A. Because they were placed into the wrong box.
Q. What box f A. Into the Presidential box.
Q. Whose names did these ballots bear? A. T. E. Miller.

How easy for the witness to give a perfectly satisfactory answer when
the attorney put the question, "what became of the other 29 ballots ! "
On the other hand, it was almost impossible to contradict the witnesses
as to details by men having strict regard for the obligation of an oath
and for the very reasons above alleged. It was four months after the
election, and they could not undertake to swear to exact figures. Com-
ing to the several precincts at which the majority gives contestant
votes under this head, we note the following points : At Gourdiu's they

MILLER VS. ELLIOTT. 545

give contestant 22 votes. The only witness, Daniel Bavanell (p. 8),
says: The votes in the wrong box "were about 21 or 22." On this
testimony contestant, in his brief (p. 18), did not venture to claim more
than 21, but the majority unhesitatingly gives him 22. Not very mate-
rial, to be sure, in point of numbers, but it indicates the tendency of the
report throughout. We give the following from the testimony of the
managers. W. M. O'Bryan (p. 412) :

Q. How did the ignorant voters distinguish the boxes? A. They asked the mana-
gers.

Q. Did the managers tell them? A. They did.

Q. I understand yon to say that the managers would tell the voters which was the
electoral box and which was the Congressional box. A. Exactly.

Q. Were there votes for both Miller and Elliott in the wrong boxes? A. There
were.

Q. Can you say how many for each? A. I can not.

Q. Do you know Daniel Ravanell ? A. I do.

Q. What was he doing there that day ? A. He was supervisor.

Q. Did Ravauell keep any account of any votes that day? A. He did not, to the
best of my belief; I was standing where I could see him when the votes were counted
and he took no account then.

A. M. Gorden (p. 413) says :

Q. How did the ignorant voters distinguish the boxes T A. They asked the man-
agers.

Q. When asked did the managers tell them? A. Yes.

Q. Were there any votes in the wrong boxes that day ? A. Yes.

Q. For whom were those votes? A. There were some for Elliott and eome for
Miller.

Q. How many for each ? A. I have no idea ; I kept no record of them.

Q. Where was Ravanell's position while the votes were being counted? A. Stand-
ing right by me.

Q. Could he see the votes as they were read ? A. He could.

Q. Did he keep any kind of tally? A. He kept no record at all ; he had neither
paper nor pencil in his hand during the entire counting of the votes.

Cross-examined by S. J. LKE, Esq. :

Q. Did Ravanell make a return a supervisor ? A. He did.

Q. May he not have kept account of the number of Miller's ballots in the wrong
box in his head ? A. I don't think it was possible for him to have done it.

Q. There were not more than twenty-five or thirty ballots found in the wrong box,
were there ? A. I don't know how many.

Q. Your return shows one hundred and fifty-one votes as being cast in the proper
box that day for Congressman, while the poll-list shows one hundred and seventy-
three persons voted, a difference of twenty-two. Ravanell says these twenty-two
were Miller's ballots found in the electoral box. Can you say that this is untrue ? A.
I can.

Q. Please explain ? A. I called the votes myself, and saw that there were Elliott
votes in the wrong box.

Q. How many ? A. I kept no account of how many.

Q. How many Congressional ballots were found in the electoral box ? A. Don't
know ; there were some ; kept no count.

A. M. GORDON.

SALTERS.

This is the poll already mentioned at which the Eepublican super-
visor, Lawrence Brown, proves that Miller lost 23 and Elliott 21 in the
wrong box.

KINGSTREE (66).

These votes are given, on the testimony of M. M. Morzon, Republican
supervisor (p. 13), who says that the vote was as follows:

Miller 66

Elliott 133

Miller in wrong boxes -. 66

Total 320

H. Mis. 137 35

546 MILLER VS. ELLIOTT.

and that u the others" were cast for Dargan. By his return made to
the chief supervisor on the night of the election, he gave the vote as
follows (p. 604) :

Miller 159

Elliott 133

Dargan 5tj

Whole number for Congress 348

The total is 28 more than he swore to, and Miller's vote is 27 greater
than he swore he got in all boxes, 66 + 66 = 132. In his return he
said not a word about votes in wrong boxes but gave Miller 27 more
than he swears he got in all boxes. Did he know most about the vote on
the night of the election, November 6, 1888, or on February 11, 1889, the
day he testified ? His testimony certainly shows that he knew nothing
about it on the night of the election ; how did he afterwards acquire
more correct information f The mystery is explained when we find th it
the poll list introduced by contestant (p. G39), shows only 320 votes cast.
Before his examination he had the privilege of seeing it, and shaped
his testimony accordingly. This conclusion is irresistible, and clearly
establishes the unreliable character of this whole line of testimony.
And yet it is upon such proof that the majority gives contestant 1,000
votes and a seat in Congress.

INDIANTOWN.

Upon the testimony of Jesse S. Fulmore, Republican supervisor (p.
14), the majority gives contestant 81 votes at this poll. All that Ful-
more can say is that that was the number "as well as I can remember."
There is no other testimony to sustain it. On the night of the election
he made his return as follows (p. 664):

Miller 82

Elliott 30

Whole number for member of Congress 112

His duty was to report anything wrong, and yet not a word is said
about votes for contestant not being counted.

LYNCHBURG (29).

The witness is I. K. Smith (p. 27), and he swears to the following
vote:

Total 181

Miller 18

Elliott 134

Miller in Presidential box 29

181
We give his testimony in full on this point.

Testimony of I. R. SMITH, sworn:

Q. State your name, age, residence, and occupation. A. I. R. Smith; 36 years old:
Lynchburg Township, and a farmer.

Q. Where were you on the 6th day of November, 1888? A. I was at Lynchburg
polls.

Q. What official position did you hold? A. I was a U. S. supervisor.

Q. Were you at the polls during the entire day? A. I was.

Q. Did you see the votes counted ? A. I did.

Q. How many ballot-boxes were there? A, Two; the Congressional and Presi-
dential boxes.

Q. How many persons voted at that box on that dayT

MILLER VS. ELLIOTT. 547

(Objected to as not calling for the best evidence.)

A. 181.

Q. How many votes were returned for T. E. Miller T

(Objected to as above.)

A. 18.

Q. How many for Mr. Elliott t

(Objected to as above.)

A. 134.

Q. How many for the two I A. 152.

Q. What became of the other 29 ? A. They were counted out.

Q. Where were the other 29 ballots? A. In the Presidential box.

Q. Whose names did these ballots bear f

(Objected to as being secondary evidence.)

A. Thos. E. Miller.

(Objected to as above.)

This reads very nicely, and is perfect in arithmetic. It was very
easy for tbe witness, in answer to the suggestive question u What be-
came of the other 29" to say "They were counted out," and bad the
name of "Thos. E. Miller" on them. But unfortunately for the wit-
ness, he, too, made a return on the night of the election, and here it is
(p. 062):

Miller 18

Elliott .., 134

Robert Simmons 15

Scattering 14

Whole number for member of Congress 181

On the night of the election he gave Kobert Simmons 15 votes and
reported 14 as scattering, but when he came to testify on February 9,
1889, he utterly ignored this return, probably had forgotten all about
the figures, and boldly gave the whole 29 to contestant as being cast
in the wrong box. We think further comment is unnecessary.

BETHEL CROSS-ROADS (5).

G. W. Michau (p. 34) is the witness relied on to give contestant these
5 votes. On his cross-examination he says :

Q. In what box were they found, Congressional or President ? A. 2 in the Presi-
dential and 3 in the Congressional box.

G. W. MICHAU.

The result is, therefore, that the majority give contestant 3 votes
found in the Congressional box, on the ground that they were not in
that box, but in some other box.

MAYESVILLE (40).

A. 0. McCall (p. 36) is the witness. He swears to the following vote
Total . 220

Miller 58

Elliott 122

Miller, in wrong box 40

Making 220

He, too, made a return on the night of election (p. 662), as follows :

Miller % 58

Elliott 122

Simmons 3

Whole number for member of Congress..... 183

548 MILLER VS. ELLIOTT.

Not a word is said about aiiy votes for contestant in the wrong box,
but, in his testimony, he gives him 40 votes, including those cast for
Simmons, whom he does not mention.

FORT MOTTE (16).
E. M. Claft'y (p. 381) is the witness. He says :

Q. Were any ticket with the name of Miller on them for Congress fonnd in the
President! ul box? A. I think there were.

Q. Were they counted for Miller f A. No.

Q. Were they destroyed by managers? A. Yes.

Q. Can yon etate about how many ? A. There were about fifteen or sixteen in both
hoxes altogether; there were some for Presidential electors and some for Miller.

On this testimony contestant's counsel (p. 14) had the modesty to
claim only fifteen votes, but the majority increase it to sixteen.

BIGGIN CHURCH (18).

Carolina Holmes (p. 18) gives the vote as follows :

Miller 83

Elliott 26

Miller, in wrong box 18

Simmons 17

Total 144

His return as supervisor on night of the election is (p. (>G7) :

Elliott 26

Miller 83

Robert Simmons 17

Whole number for member of Congress 126

BLACK OAK (44).
The witness Sampson Flowers (p. 43) gives the following vote :

Miller 66

Elliott 21

Miller, in wrong box f 44

Total 131

His return as supervisor, signed also by the Democratic supervisor,
is (p. G6) :

Miller 66

Elliott 21

Whole number for member of Congress 87

CALAMUS POND (32).

M. P. Eichardson, Eepublican supervisor (p. 48), swears to the follow-
ing vote :

Total.. 259

Miller 166

Elliott 61

Miller in wrong box - 32

259

MILLER VS. ELLIOTT. 549

Both supervisors made the following return (p. 665) :

Whole number for member of Congress 227

Elliott 61

Miller 166

227
STRAWBERRY FERRY (21).

Contestant claims nothing at this poll, and very properly, because
there is no proof that any of his tickets were found in a wrong box.
The supervisor, Edward A. Jenkins, page 41, says, "21 Presidential
electors Republican tickets were found in the Congressional box." On
this the majority give contestant 21 votes that he never claimed.

We now call attention to some errors in statements made by the ma-
jority. At foot of page 13 they say :

In every instance bat one the shifting of boxes is shown.

In the following instances there is either direct proof by Republican
supervisors that the boxes were not shifted, or there is an entire ab-
sence of proof on the subject, to wit:

Bloomingdale, Cades, Black Mingo, Bethel Cross Roads, Fort Motte,
Ten Mile Hill, Adams Run, Calamus Pond, and Haut Gap. This does
not include cases where the shifting was denied by the managers.

Another statement of the majority (p. 14):

The United States supervisors, present at all the polls when this destruction oc-
curred, kept an account of the number, and by that means we are able to ascertain with
reasonable certainty the whole number lost.

The majority say the supervisors "kept an account of the number."
Out of the twenty-seven precincts there are just two, Camp Ground and
Haut Gap, at which the testimony shows a tally was made at the time,
with no proof that it was preserved, and one only, the majority's pre-
cinct, Strawberry Ferry, at which an account was kept and used at the
examination, and at that precinct there was no proof of Congressional
votes being in the wrong box. Upon a review of the whole testimony
we can not believe that the House will sustain the majority in giving
contestant these 1,000 votes, or any part of them.

GLOVERVILLE.

The majority next rejects the whole vote at Gloverville precinct, in
Colleton County, because " the box was dishonestly stuffed by some-
body," and though there is no competent evidence on this point as to
who did it, yet, taking it for granted that the sworn officers of the law
were the culprits, puts on the stand E. M. Chisholm, one of the United
States supervisors at that precinct, and who Mr. J. H. Dodd, a mer-
chant of Centerville in that precinct and county, says, " is looked upon
by the leading men of the neighborhood as the most notorious liar in it,"
and by his unsupported evidence alone deprives Elliott of 113 votes
ar.d Miller 20 votes, notwithstanding the following evidence from repu-
table sources :

J. IT. DODD, a witness in behalf of the contestee, being duly sworn, says:
Question. State your age, occupation, residence, and where you were on the 6th

day of Nov. last. Answer. I am 86 years old ; merchant, and reside at Centerville ;

I was at Gloversville voting precinct.

Q. Did you vote at the election held at the Gloversville precinct on the 6th day of

Nov. last for a Representative in Congress! A. I did.

,550 MILLER VS. ELLIOTT.

Q. Did yon act in any official capacity that day ? If so. state in what capacity.
A. I was one of the managers of the Congressional box.

Q. At what time was the polls opened? A. At 7 o'clock in the morning.

Q. Was the voting during the day peaceable and unmolested ? A. Yes.

Q. Who was the other two managers? A. C. P. Chisholin and J. E. J. Bryant.

Q. Did you open and expose the box before the voting commenced, as required by
law ? A. We did.

Q. Were you present and did you assist in the canvass of the votes at the close of
the polls? A. I was present and assisted in the canvass of the votes.

Q. Please state how the votes were canvassed, and with what result. A. The first
thing we done was to open the boxes and count the votes, putting them in a pile on
the table. Finding there was more votes than there was names on the poll-list, we
put all the votes back into the box. One manager turned his back and drew out the
overplus and destroyed them. Then the remainder was taken from the box and
counted, showing a hundred and thirteen for William Elliott and, I think, twenty-
one for Miller.

Q. In the examination of the votes that you found in the box, did you find any
folded together? If so, state what you found and the kind of tickets you so found.
A. I found the Congressional ticket with Miller's name on it folded with the Presi-
deatial ticket.

Q. From the appearance of those tickets would you say that they had been voted
by the same man ? A. I should say that they were voted by the same person.

Q. Who acted as supervisor of the Republican party at Gloversville precinct? A.
E. M. Chisolm.

Q. Was he present when the polls were opened? A. He was not.

Q. Do you know where he was? A. Yes; he was across the road, standing around
the fire, about, 50 yards away.

Q . Did you know before the polls were opened who the Republican supervisor was ?
A. I did not.

Q. When were you first informed that E. M. Chisolm represented the Republican
party in the capacity of supervisor ? A. Some little time after the voting had started
I walked out to the fire and asked E. M. Chisolm if he knew who was the super- isor.
He said that he was supervisor. I then asked him why he did not go to his post. He
said he would be in after a little.

Q. Did he come in after a little? A. He did.

Q. What did he say when he came in ? A. He asked me if I refused to let him see
in the box. I told him I could not let him see in the box, as the voting had started.
He said that was all right, and that he would make a note of it. I then invited him to
take a seat at the table, which he did, and staid there the greater part of the day ;
at times he put another man in his place and went out, as he said he wanted to take
a little exercise.

Q. Then the poll-list kept by the supervisor was the work of others as well? A. It
was, as several had a hand in keeping Chisolm's poll-list.

Q. Did Chisolm occupy a place in the room while the votes were being counted ?
A. Yes ; and also Abram Smalls.

Q. Do you know A. B. Smalls? A. Yes.

Q. Was he at the polls that day; if so, what did he do? A. He stood outside at
the window, and folded votes and gave them to voters as they came up.

Q. Did he remain at the window during the entire day? A. No; he was only
there a portion of the time.

Q. Did you see Elliott tickets in circulation among the voters that day ? A. I did.

Q. Did you see any colored men distributing Elliott tickets? A. Yes; there was
three or four colored men that were working in that direction that day.

Q. Were these colored men that you saw distributing Elliott tickets men of some
influence with the colored people ? A. They were the leading colored men in that
section of country.

Q. During the day did A. B. Smalls apply to any one of the managers for the correct
time of day? A. He asked me three times during the day to let him set his watch
by mine. One time I took his watch in my hand and it was four hours out of the way.

Q. Do you or do you not know whether the number of white voters residing in
Glover Township largely exceeds twenty-five ? A. I think the white voters in Glover
Township number about 38 or 40.

Q. Are you not intimately acquainted with the white men who voted at Glovers-
villo precinct that day? A. I am personally acquainted with every one.

Q. Did any white man vote for State and county officers on the 6th of Nov. last
and refuse to vote for William Elliott for Congress ?

(Counsel for contestant objects to the question because witness was not at the State
polls in any official capacity, and can not state except on information given by the
voters.)

A. That there was no white man who refused to vote for William Elliott that day.
I can not say as to the State and county polls, as I was not a manager there.

MILLER VS. ELLIOTT. 551

Q. Do you or do yon not know that every white man that you saw at the precinct
that day who was legally entitled to vote voted for Elliott! A. I know they did.

Q. Do you know a white man residing in Gloversville Township by the name of H.
B. Ackeman ? A. I do.

Q. Did he not vote at Gloversville precinct for William Elliott on the 6th of Nov.
last?

(Counsel for contestant objects to the question upon the ground that the testimony
of the voter mentioned is the best evidence.)

A. He did.

Q. Did any white man offer to vote for William Elliott that day and was rejected
by the mana'gers? A. Yes; William Holts.

Q. When the tickets were given to the colored voters on the outside of the building
by A. B. Small, was it possible for E. M. Chisolm to have watched the people to whom
they were given and see that the same tickets were deposited in the box by the people
to whom they were given? A. It was impossible ; it was on account of the position
he occupied in the room, and further that the tickets were given out at the window,
and the voters very often took the ticket and went off in the crowd and knocked
about awhile and then came back and voted.

Q. After the polls had been closed and the Congressional box had been opened were
auy tickets found folded with a twist which could not have been voted through the
opening in the lid of the box?

(Counsel for the contestant objects upon the ground that the question is leading.)

A. No, none.

Q. Did yon find any tickets twisted at all ? A. None; the tickets were all folded.

Q. When the polls were formally closed was anybody, white or colored, ordered to
leave the room? A. No one was ordered to leave the room, but just requested that
the crowd should fall back so as to give them room to work. I invited A. B. Small
to come up to the table and witness the count.

Q. Is it true that you or any one of the managers told the white men present to
crowd around the table ? A. We did not ; there was no such language used that night.

Q. Is it true that the managers indulged in a general drunk while the count was
being conducted and endeavored to get the Republican supervisor drunk ? A. There
was no one under the influence of liquor that day except A. B. Smalls. I gave him
nothing but one glass of ginger ale. Neither of the managers invited E. M. Chisolm
to drink.

Q. After the polls were closed is it true that yourself and C. P. Chisolm went off
and had a private consultation as to how the votes were to be counted? A. We did
not.

Q. While Chisolm was calling the names from the tickets did he at any time throw
one of the tickets over his ear and then pretend that it was a mistake ? A. He did
not.

Q. Did you at any time during the day see A. B. Smalls at the State and county
polls? A. I did; he voted a man at the Congressional poll and then told him that
he must go to the Democratic boxes and vote there. I followed Smalls and the voter
to the State and county polls, and saw Smalls folding the Democratic tickets and the
voter putting them in.

Q. Is it true that when C. P. Chisolm drew the tickets from the hox that he turned
his back but not his eyes? A. His face was turned away from the box.

Q. What opportunities were offered the Republican supervisor for witnessing the
voting during the day and the count after the polls had closed ? A. He was invited
to take a seat at the table on which the ballot boxes were placed, and when we went
to count the votes he occupied the same position at the table as he had at times dur-
ing the day. As I called oui the votes I asked him to notice each vote and to see
if it was right. He told me that he could see, and Abram Smalls was in a foot of my
elbow and saw every vote as I called them out to the tally-keeper.

Cross-examined by W. F. MYEK, counsel for contestant :

Q. How long have you been living in Gloversville Township? A. I have been liv-
ing on the township line all my life.

Q. Are you a voter at Gloversville precinct ? A. I am.

Q. Are you or not an officer in the Democratic Club in Gloversville ? A. I am an
executive officer, if you call that an officer.

Q, Keeping stores at two most popular points in the precinct you know pretty well
the white and colored voters of the precinct, do you not ? A. I do.

Q. Who were present when you asked Chisolm who was Republican supervisor?
A. C. P. Chisolm, A. B. Small and his brother.

Q. As the poll was open, there being but three managers, a majority of them then
was interviewing Chisolm, the Republican supervisor, away from the poll? A. The
place that the boxes were arranged were in full view of the fire. All persons having
voted that were present, white and colored, C. P. Chisolm and myself walked out to
the tire.

552 MILLER VS. ELLIOTT.

Q. The boxes being in full view of those who were standing at the fire, do you
mean to say that the men at the fire did not know the polls were open and voting
going on until aid voting was over and you went out to them? A. I take it as a
matter of course that they knew that voting was going on as several persons had
come in and voted.

Q. State how many up to this time had voted ? A. About four, or maybe five.

Q. Please name them. A. I think Nero Williams was one, my brother and myself.
I was not acting as secretary, therefore did not charge iny memory with it.

Q. Whose store was it, and who occupied it at the time? A. It was my store, in
partnership with Hill.

Q. Did you or not stay at the store on the night preceding the election ? A. I did.

Q. Who stayed with you? A. The clerk, W. F. Hill, J. B. Dodd, and C. P. Chisolm.

Q. Was not Nero Williams in there? A. Not until the polls had been opened next
morning.

Q. Do the men above named always sleep there, or was it the custom at the time
mentioned for them to do so? A. No. Myself and brother had been on business down
to Cottageville, and until a late hour in the night. As it was nearer to my Gloversville
store than to my home, and knowing that we would have to go down there early next
morning, we called in and spent the night with the clerk at the store.

Q. Then you can name those only who were in the store that voted before E. M.
Chisolm was notified? A. I told you that Nero Williams came as soon as the poll
was opened. He did not steiy there that night.

Q. What direction did he come from, and what direction did he go after voting?
A. I did not see where he came from or where he went to.

Q. How did the voters approach the poll to vote, through the store or at the win-
dow ? A. Most of them voted at the window. Some came inside and voted.

Q. You say you know all of the white Democratic voters of Gloversville. Will
you please give the names of all or some of them who voted that day? A. H. B.
Ackeman, T. S. Ackeman. I can't remember all the names except referring to the
list, but they were nearly all present.

Q. As you can not tell all who voted, can you tell all who were not present?
A. I don't remember who was not present of the white Democrats.

Q. You stated that you know pretty well white and colored voters of this pre-
cinct. Will you state the names of the colored Democrats ? A. 1 don't wish to do
so, as it would only bring down the wrath of the Republican leaders upon their
heads.

Q. Are these colored Democrats members of your club, or are they organized into
a separate club ? A. Some of them are; others are not. I meau our club; other
colored Democrats are not members.

Q. Are not C. P. Chisolm and Nero Williams Democrats and known to your com-
munity ? A. They are.

Q. They being known as Democrats by white and colored, never have been mo-
lested or wrath brought down upon them, why can not you give the names of other
colored Democrats? A. Because I have been informed lhat they Chisholm and
Williams have been threatened with lynching by the Republican leaders in the
neighborhood.

Q. Did you ever hear a Republican leader make this threat, or are only giving what
you hoard others say ? A. I am telling what I know to be true.

Q. How do you know it to be true? A. By information received from responsible
parties.

Q. Will you name them ? A. I will not name them unless I am forced to do it.

Q. Have these men ever been lynched ? A. No ; but they have been cussed and
abused and threatened with lynching.

Q. Do they not live in the most thickly-populated settlement of the colored people
in Grover Township ? A. No ; they live in the upper part of the township, and most
of their neighbors are near relatives.

Q. Then I suppose these two men have to be accompanied with a guard to protect
them from lynchers? A. No; they do not. I have known them to go around to-
gether for protection to each other, and have been forced to carry arms for their pro-
tection.

Q. Is Chieolm not an active worker for the Democratic party ? A. Yes ; he ex-
presses his opinion generally.

Q. Name the colored men whom you saw going amongst the colored voters with
Elliott tickets on election day last trying to induce them to vote the Democratic
ticket ? A. I can not give their names in justice to those colored men.

Q. You said in your direct that those men were openly working amongst the col-
ored voters for the Elliott ticket ; they were not molested then ; why do you refuse
now to give their names ? A. Because at that time all the white strength was out as
a reason why they were not molested ; things are quiet now, and I don't wish to
bring them to any trouble this late day

MILLER VS. ELLIOTT. 553

Q. Did not the Republicans down there know these men ? A. I don't know
whether they did or not, but I did.

Q. Please state if Smalls or Chisolm did not compare time with your watch when
you went to the fire. A. Nothing said about time at the fire ; but when E. M. Chis-
olni came he said it lacked 15 minutes to six by A. B. Small's watch ; and then it was
some time after seven by mine.

Q. Was that the time Small's watch was four hours behind? A. No.

Q. What manager drew the votes from the box while counting them ? A. C. P.
Chisolm.

Q. Did he lay them on the table, or put them in another box? A. He drew them
out, called the name, passed them on to me and A. B. Smalls, and the two of us
looked over them.

Q. When you requested the crowd to fall back or withdraw, what was the lan-
guage used by you? A. I do not remember the exact language, but wanted Smalls
and Chisolm to take seats at the table and assist in counting the votes.

Q. Were they, or either of them, a manager? A. They were not, but I wanted to
show the Republicans present a free ballot and a fair count.

Q. As you wanted to show them a free ballot and a fair count, how is it that, of
the number of Republicans around the poll, and the very few Democrats, only one
Republican was admitted and all the Democrats who were present? A. The Repub-
licans all congregated in front of the store, and did not seem to want to come in.
There was only one or two white Democrats that staid in the room when we first
started to count; but when the managers of the State and county boxes got through
they came in and took back seats.

Q. Did you and the other managers sit at the same table with E. M. Chisolm ?
A. We did.

Q. Did the managers have a good view of the voters as they approached the win-
dow to vote? A. Those of us who sat at the side of the table had full view of the
voters as they came to the window.

Q. The managers having been able to see the voters sitting at the same table with
E. M. Chisolm, how do you account for his inability to see as well as you? A. Be-
cause I sat at *-he side of the table, while he (E. M. Chisolm) sat at the end of the
table, which put him two feet away from the window.

Q. Are you well acquainted with E. M. Chisolm? A, I have known him all my
life.

Q. He is very active and earnest as a Republican, is he not? A. I can't say. He
is so tricky that I don't know.

Q. Being tricky, as you say, yet with this qualification, standing in full view of a
lone building where every voter's attention was centered, the early morning being
the most interesting time of voting, with men passing in and out, Chisolm, as you
say, did not see or kuow the poll was open. Am I to understand that you outtricked
him on that occasion ? A. No ; you did not understand me to say so. I think he lies
when he says he did not know the poll was open.

Q. Though a manager at the Congressional poll, you actively extended to the State
and county poll the scrutinizing of voters and rallies, the knowledge of colored men
beiug openly Democrat and rallying for the Democratic ticket, but you refuse to tell
the name or names of colored men who voted for Elliott on the Gth of Nov. last, ex-
cepting Nero Williams and C. P. Chisolm, do you? A. The colored men who voted
the Democratic ticket that day made me promise faithfully that I would not give
thorn away, as they did not want the ill will of their neighbors, and at the same time
wanted <o do what they thought was to their best interest. At the time I went out
to the State and county boxes and saw A. B. Smalls voting a colored man, there was
no voting going on at that time at the national box and the boxes were left in charge
of two managers and the Republican supervisor.
Re- direct :

Q. E. M. Chisolm, a witness on the part of the contestant, heretofore testified that
when he entered the poll in the morning the name of W. F. Hill was given to him
by the managers as the one who had already voted, and that later during the day the
said Hill presented himself and said that he had not voted, and was then permitted
to vote by the managers ; is that true? A. That is not true ; Hill did not vote but
once, as will be seen by the poll-list.

Q. How long have you known Mr. Chisolm ? A. I have known him all my life.

Q. Are you intimately acquainted with the general reputation for truth of E. M.
Chisolm in the community in which he lives ? A. I am.

Q. What is that reputation ? A. As I have before stated, his is tricky and not to
be trusted ; he is looked upon by the leading men in the neighborhood as the most
notorious liar in it.

Q. Being a merchant and residing in the immediate vicinity of Gloversville pre-
cinct do you not know the sentiment of the colored voters regarding their political
leaders? A. I do.

554 MILLER VS. EL' IOTT.

Q. Was T. E. Miller popular or unpopular with the colored people of that commu-
nity? A. From what I have learned from leading Republicans in the township, I
suppose he was very unpopular.

Q. Do you know the reasons which they assigned for his unpopularity! A. Those
whom I heard say anything about it seemed to think that he had not dealt fairly with
Rob't Smalls, ex-Congressman, and they did not like a mulatto nohow.

Q. Do you not know that a great many colored people at that precinct remained
away from the polls for the reasons above given ? A. That is what I have been in-
formed, and know there was nothing like a full vote polled.

Cross-examkiation :

Q. Who were the colored men that said they were down on Miller because of his
treatment to Smalls and his condition birth ? A. I don't think that I arn liberty to
make public the parties who held this conversation in my store, as I think what one
hears under his own roof is sacred.

Q. You claim now to be scrupulous of telling conversation because of their sacred-
ness ; why did you tell of the sacred conversation that occurred in your store by two
leading colored men in reference to Miller under your own declaration ; is it less
sacred to give the name as I asked? A. I have only made public what I believe to
be the general sentiment of the colored people, but at the same time, nob having di-
vulged the names of the parties holding the conversation, I have done them no harm.

Q. As the men held the conversation in a public store, asking no injunction as to
secrecy, how came you to regard it more sacred than they ? A. They were the only
persons in the store at that time. I was in the office writing, and I don't suppose
they intended me to hear what they were talking about.

Q. Seeming to be an expert in matters relating to the standing of men and the sen-
timents of the people in your community, you mean to say that the opinion of the
entire Republican vote down there must be governed by the sacred conversation had
in your store by two men? A. As political leaders always understand the sentiment
of their party, I took it for granted the two leading Republicans know the sentiment
of their township.

Q. Are you or are you not postmaster at the Round or Centerville P. O. ? A. I am
postmaster at Round.

Q. Is that now in the district represented by W. Elliott in Congress? A. I think
it is.

Q. You have expressed a thorough knowledge of things in Glover precinct ; I desiro
you to state if the Round P. O. is not in the Seventh Congressional District, now
represented by William Elliott ? A. I told you it was.

J. B. DODD, being duly sworn, says :

Question. State your age and residence. Answer. I am 28 years old and reside at
Gloversville precinct.

Q. Where were you on the 6th day of Nov. last ? A. At Gloversville voting precinct.

Q. Wore you at the precinct at the time that the Congressional poll was opeued ?
A. I was ; I was in the room when the poll was opened.

Q. Were the boxes opened for the scrutiny of those who wished to see before the
voting commenced ? A. Yes.

Q. Did you vote in the Congressional box that day, and if so, whom did you vote
for for Congress? A. I did; and voted for Elliott.

Q. Did you, at any time during the day, see A. B. Smalls at the State and county
poll? A. Yes; J was manager of that poll.

Q. What was A. B. Smalls doing there when you saw him? A. He came to that
poll with a colored, who seemed to be a very ignorant man, and told him he must
vote in all of those boxes, and folded Democratic tickets, giving him one to poll into
each box, which the man did; stated as he left that he was going to bring more
votes to the boxes at which he was manager. He was about, the State and county
polls several times that day, but never brought any more voters.

Q. When you voted for William Elliott at the national poll did you not have your
registration certificate? A. Yes; I had.

Q. Have you that certificate with you now ? A. I have not ; as I never carry it ex-
cept to elections.

Q. Do you remember about how long ago it was issued to yon? A. Not exactly;
about four years, I think.

Q. Do you remember its serial number?

(Counsel for contestant objects, as the original certificate is the proper evidence.)

A. No. 90, I think.

Cross-examination :

Q. Who acted with you as managers at the State and county precinct on election
day last ? A. T. S. Ackermau, and H. B. Ackermau a portion of the time. The reg-

MILLER VS ELLIOTT. 555

nlar manager did not come, and as soon asH. B. Ackerman got there we appointed
him to act with us.

Q. You say a portion of the time H. B. Ackerman acted; that is, when did lie
reac.h the poll to act with you ?

(Counsel for contestee objects to the question upon the ground that it is irrelevant;
this examination has reference to the conduct of the election at the Federal poll, and
not the State and county.)

A. About ten o'clock, as well as I remember.

Q. When you opened the State and county poll, did you open the boxes to allow
the voters to see that they were all right?

(Objection as above.)

A. Yes.

Q. At what time or what o'clock was this done? A. About 7 o'clock.

Q. How far was the State and county poll from that of Congressional? A. From
75 to 100 yards.

Q. Am I to understand that you got up, dressed, and voted at the Federal poll in
the building in which yon slept the night preceding, saw the managers examine
box or boxes, yon and others voted then, and yet you got to the State and county
poll and opened at 7 o'clock a. m. ? A. In the first place I did not say I opened at 7,
but about 7, and further I did not wait to see anybody vote but myself, and the time
that it took me to walk 75 yards could not be considered difference enough to make
tho time illegal.

Contestant's case, as heretofore stated, rests on the testimony of E. M.
Chisolm, who, as J. H. Dodd says, "is looked upon by the leading men
in the neighborhood as the most notorious liar in it." In one place he
says about his report as supervisor:

I simply could make one reference, and that was that the poll-list only called for
134 votes, and that there were 229 ballots in the box.

In another place he says :

I reported several objections; one is that the manager, while pretending to scratch
his head, threw a vote over his back.

Again he says :

I remember giving the total number of votes cast, and at the bottom I made a
statement as to how the true number of votes were not given, making a statement of
the irregularities.

And here is the return that he did make (p. 661):

EXHIBIT A.
Return of the election held at Gloverville precinct, Colleton County, November 6, 1888.

The whole number of votes given for member of Congress was 134

Of which William Elliott received 113

Of which Thomas E. Miller received 21

Of which received .'

Of which received

We, the undersigned supervisors, certify that the above is a correct return of the
votes cast at the election held at Gloverville precinct, of Colleton County, on the 6th
day of November, 1888.

E. M. CHISOLM,

"Supervisor.

I certify that the foregoing is a true copy of the original return now on file in my
office.

SAMUEL T. POINIER,

Chief Supervisor.

According to his own account he did not before election day notify
the managers that he was supervisor, and even on election day did not
notify them until " some time" after he had seen one of them, but con-
tented himself with hanging around a fire, when, according to J. H.
Dodd, he had to be asked who was supervisor, and even after being told
that the polls were opened, and asked why he did not go to his post,

556 MILLER VS. ELLIOTT.

said " he would be in after a little." When the ballots are being counted
he does not examine them because he was "keeping a poll-list." The
testimony indicates very strongly that Chisolm was simply hiving tin*
foundation for the charge that he was not allowed to examine the box,
and thereby defeat the election. If his demand to examine the box after
the voting had commenced had been complied with, then we would
have had a fervid complaint based on that fact. The only testimony
explaining the surplus of ballots in the box shows that Eepublican
tickets were found folded together, Congressional and electoral. Noth-
ing is said about the vote in the electoral box. After the performance
at Grabamville, under contestant's eye, what may not be expected from
Republican leaders in South Carolina? Uncontradicted testimony
shows that leading colored men at the precinct were favoring coutes-
tee's election, on account of contestant's treatment of ex-Congressman
Smalls, and two uucontradicted witnesses prove that A. B. Smalls, pos-
sibly a relative, who was relied on to distribute contestant's tickets,
was openly pushing the Democratic ticket at the State polls. Contes-
tant undertook to swear the voters as to their votes, but gave up the
attempt after examining three witnesses.

GREEN POND.

The returns in this precinct gave Elliott 216, Miller 52.

Notwithstanding these returns by the sworn officers of the law, the
majority, on the strength of the testimony of one Brown, who was one
of the United States supervisors at that poll, and against the testimony
of five reputable citizens, managers and clerks of the election, 200 votes
are taken from Elliott and 200 added to Miller, thus giving Miller 400
votes off hand at that precinct.

In order that the House may have a just conception of the character
of evidence employed in this case to unseat Mr. Elliott, we give here
some sample extracts :

Cross-examination of Emanuel Youton (p. 186) :

Question. When were you born; what year? Answer. I can not tell the year.

Q. How many ballot-boxes were at the poll that day ? A. There were two.

Q. Did each of the boxes have labels on them? A. Yes.

Q. What did those labels contain 1 A. Don't know.

Q. Then yon don't know whether you put your ticket for T. E. Miller in the box
labeled Presidential electors or the box labeled Representative in Congress ? A. I
do not know.

Cross-examination of July Gadsden (p. 187) :

Q. How many tickets did you vote on the 6th of Nov. last ? A. I voted one ticket.

Q. How many ballot-boxes were at the precinct at which you voted ? A. Two.

Q. Then yon did not vote in but one of them ? A. But one.

Q. Did you vote that one ballot in the box labeled Rep. in Congress or the box
labeled Presidential electors? A. In the Congressional box.

Q. Who did you vote for President? A. Harris.

Q. Now, you testified a few minutes ago that you did not vote but one ballot on
Nov. 6th last, and that you voted that one ballot for T. S. Miller for Congress in the
box labeled Rep. in Congress, and now you say that you voted for Harris for Presi-
dent. How do you account for that ? A. Singleton read the ticket that Miller was
on it for Congress, and I voted that.

Cross-examination of Prince Warley (p. 201) :

Q. Did you* notice any difference in the construction in the two boxes of the pre-
cinct? A. I notice that one hole was large and the other small in the two boxes.

Q. On which side was the box located containing the large hole? A. On the right.

Q. How many ballots did you vote on that day? A. Two.

Q. For what otticers were those two ballots voted? A. One was for President and
the other for Miller.

MILLER VS. ELLIOTT. 557

Q. What was Miller running for, governor? A. He did not run for governor; I
have forgotten what he ran for.

Cross-examination of Bristow Mitchell (p. 208) :

Q. Did you see Chapman vote on on that? A. I saw him vote.

Q. Did you read the ticket that Chapman voted for President? A. Yes; I read
his ticket,

Q. Did he vote for Grant or Garfield for President? A. Yes; he did vote for Gar-
field.

Q. Did the boxes at the precinct that day have labels on them? A. Yes; they had
labeis.

Q. What did these labels contain? A. The labels was to show you the difference
for Presidential electors and Congressman.

Q. Will you swear of your own knowledge that you voted for Miller in the box
labeled Presidential electors? A. No; I voted for Miller in the one on the right with
the Lirge hole.

Q. Did you vote for the same man for President that Chapman voted for? A. I
did not vote for the same man.

Q. Did you vote for Grant or Sherman for President? A. No.

Q. Who did you vote for for President? A. I can not remember the names that
were on the ticket, but I voted for the electors on the ticket.

Q. Are you willing to swear of your own knowledge that the word Republican was
printed on your ticket? A. No; that was not there.

Q. Did you vote for Cleveland for President ? A. I did.

Cross-examination of Win. Alston (p. 208):

Q. Who did you vote for for President, Cleveland or Conklin? A. I voted for
President at large.

Q. Then you just went it blind, for nobody in particular? A. No; I voted for no-
body in particular.

Q. You voted for Congressman in the same way, did you not ? A. Yes.

Q. How many ballots did you vote on that day ? A. I voted two.

Q. Did you vote them both for the same officer? A. Yes.

Q. Did you vote them both in the box on the right with the big hole in it ? A. No,
I did not.

Q. Did you vote them both in the box on the left with the little hole in it? A.
No, sir; I put one in each box.

Q. Which box had Miller's name for Congress on it, the one on the right or left?
A. The one on the left with the small hole for Miller.

Q. Then you voted for Miller in the small hole ? A. Yes.

Q. In which box did you vote for Miller, on the right or on the left? A. I voted
in the right for Miller.

Q. For what office was the President running? A. For Senator.

Q. In which box did you vote for Senator ? A. In the right-hand box.

Cross-exaniiiiation of Jeffrey Smith (p. 204) :

Q. You really did not have but one ballot that day ? A. Only one.

Q. You have already sworn that you did not vote but one ballot that day, and that
was for Congressman. Why did you not vote for President also? A. May have been
two tickets in one for what I know; he gave me the ticket, saying it was Republi-
can, and I voted it.

Q. What did you put in the other box the box with the little hole ? A. I put
them in just as they were given to me ; if there were two tickets I put them in the
box with the big hole.

Cross-examination of Paris Smalls (p. 205) :

Q. What office was Harrison running for? A. I understand he was running for
President.

Q. What office was T. E. Miller running for ; was he running for U. S. Senator?
A. I do not know.

Q. If you do not know what office he was running for, how did you testify a few
minutes ago that you voted for him for Congress? A. By Chapman's instructions.

Cross-examination by W. B. Gruber, esq., of Jake Brown (p. 206):

Q. Who did you vote for for President on November 6th last? A. I voted for Mil
ler.

Q. Who did you vote for for Congress on November 6th last? A. I voted for no-
body but Miller.

Q. How many ballots did you vote on November 6th ? A. Two.

558 MILLER VS. ELLIOTT.

Q. Did you vote both of those ballots in the same box for the same candidate ? A.
One on the right and one on the left.

Q. You have already testified that yon saw but *ne box, and that you voted in
that for Miller; now in what kind of a machine did you deposit your other ballot?
A. There were two holes there.

Cross-examination of Denibo Washington (p. 210 ):

Q. How many ballots did you vote that day f A. I voted two.

Q. Did you vote for President? A. 1 voted for Miller at large.

Q. Did you vote for Miller for President ? A. Yes, sir.

Q. How many ballots did you vote for Miller for President ? A. I cast two, but I
had an understanding <>f the difference.

Q. Did you vote for Elliott or Smalls as Representative in Congress? A. I voted
for Smalls.

Q. Who did you vote for for Vice-President, Cleveland or Thurman ? A. I did not
vote for either.

Q. Who did you vote for for Vice-President? A. I do not understand the men's
names, as I c;m not read.

Q. Didn't you vote for Miller for Vice-President ? A. I cast my vote for Miller, but
as I can not read myself I do not know.

Q. If you can not read yourself how did you happen to testify just now that you
voted for MiLer for President? A. So far as I got the ballot to cast I ask the name,
and they gave me Miller's name.

Cross-examination of George Morgan (p. 212) :

Q. Did you notice any difference in the construction of the two boxes ? A. No, sir.

Q. Then how did you know which box in which you should deposit your ticket for
Congressman? A. I know by instruction ; I put it in on the right.

Q. Was that the box in which you were instructed to vote for Presidential elector ?
A. Yes, sir.

Q. Was that also the box in which you were instructed to vote for Congressman I
A. Yes, sir.

Q. Did you vote as you were instructed ? A. Yes, sir.

Q. Did you vote for Miller for President? A. Yes, sir.

Q. Did you vote for Miller for U. S. Senate? A. Yes, sir.

Cross-examination by W. B. Gruber, esq., of P. Catties (p. 219):

Q. Then you did not know whether you were voting correctly or not ? A. I voted,
as I think was proper to my advantage.

Q. Did you vote for T. E. Miller as a presidential elector? A. That's what I did.

Q. Did you notice any difference in the construction of the boxes ? A. I did ; one
box had a small hole and the other hole was larger.

Q. Was the small hole on the right or left ? A. On the left.

Q. Did you vote for T. E. Miller in the small or large hole? A. In the large hole.

Q. Did you vote in the large hole for President Sherman ? A. In the large hole for
President Sherman.

Q. Did you vote in the large hole or the small for V. President Cleveland ? A. In
the small hole.

Cross-examination of Sam Eutledge (p. 220) :

Q. Will you swear that you actually voted for Miller as Presidential elector ? A.
Yes, sir.

Q. Will you swear that you actually voted for Harrison for Congress ? A. No, sir.

Q. Did you vote for Morton for Vice President? A. No, sir.

Q. Did you vote for Harrison for President? A. Yes, sir.

Q. Did you notice any difference in the construction of the boxes? A. Yes; one
box bad a larger hole than the other.

Q. Did you vote for Harrison for Congress in the big or the little hole? A. Vote
for Harrison in small hole, but did not vote for him for Congress.

Q. Was the small hole on the right or the left? A. On the left when I voted.

Q. Will j'ou swear, of your own knowledge, that that was the box in which you
voted for Miller ? A. Yes.

Cross-examination of Charles Nichols (p. 221):

Q. Will you swear that you voted for Miller for President ? A. I did not know what
he was running for. I took the ticket and voted as instructed.

Q. For whom did you vote for President Elliott or Miller? A. Miller.

Q. Did you vote two ballots or tickets in each of the boxes at the precinct? A. One
in each.

MILLER VS. ELLIOTT. 559

Q. Did you notice any difference in the construction of the boxes at the precinct ?
A. One box had a larger hole than the other. The right-hand box I voted for
Miller in.

Q. Having voted for Miller in the right-hand box, will you swear that you voted
for Elliott in the left? A. I voted in the right-hand box.

Q. In which of them did you vote for Elliott the right or the left ? A. The left.

Q. For what office did you vote for Miller President or Senator? A. President.

Q. For what office did you vote for Sherman President or Congress ? A. I doii't
know what office he ran for, but I vote two papers.

Q. What kind of papers did yon vote registration certificates or letter receipts?
A. I voted a paper like print.

Cross-examination of Sam Frazer (p. 222) :

Q. Did the boxes at the precinct have labels on them? A. Yes; some were torn.

Q. Did those labels indicate in which box you were to deposit your ballot for the
ofiicers for whom you were voting? A. No; it did not. I was looking for that pur-
posely.

Q. If ihe labels did not indicate in which box you were to deposit your ballots it
was therefore impossible for you to vote correctly, was it not? A. They told me be-
fore going in that the box with the small hole was for Congress and the big hole for
President.

Q. In which hole did you vote for Miller, the big or the little hole? A. I voted
for Miller in the big hole.

Q. Miller was running for President, was he not? A. Miller was running for Presi-
dent.

Cross-examination of Ben Green (p. 225) :

Q. In which box did you vote for Miller for Presidential elector, the right or the
left, the big or the little hole ? A. In the large hole.

Q. Then if you voted for Miller for Presidential elector in the big hole, in which
hole did you vote for Elliott for Congress ? A. Did not vote in either for Elliott.

Q. For what office was Miller running, President or Senator? A. Miller was run-
ning for President.

Q. Did you vote for him for that office? A. 'Twas iny intention to vote for him
for what he was running for.

Q. For whom did you vote for Congressman, Sherman or Harrison? A. I voted
for Miller.

Q. Are you willing to swear that you voted for Elliott or Sherman for President ?
A. I voted for Miller.

Q. How many ballots did you vote that day ? A. I voted one ticket that day.

Q. Did you vote that one ticket for President? A. Yes.

Q. Did jou vote for Miller for President?

(Objected to on ground that witness has fully answered the question; it is mis-
leading and intended to materially injure contestant.)

A. I voted for Miller for President.

Cross-examination of Sharper Gillings (p. 228):

Q. Were you born in 1784 or 1785 ? A. In 1775 ; but you must speak plain, I am an
Englishman.

Q. Did you come over to this country in the Mayflower or originally with Chris-
topher Columbus? A. I was born right here. ,

Q. How is it then that you call yourself an Englishman? A. Because that's the
way my mother and father learn me the English language and in politics.

Q. Did you vote for Miller for President in the big or little hole? A. I voted for
Miller for President in the big hole.

Q. In which hole did you vote for Elliott, in the big or little one? A. I voted for
all who was along with Mr. Miller; they just told me and I voted.

Q. In which hole did you vote for Mr. Sherman for President, the big or the little
hole ? A. All what was with Mr. Miller went in the big hole.

Q. Then you did not vote in the little hole at all, did you? A. I voted iu the big
hole on the right and the little one on the left.

Q. Did you vote for Miller in the little hole on the left? A. I voted for Miller on
the right.

Q. Who did you vote for on the left and what office was he running fort A. I
don't know.

Cross-examination of Jackson Piukney (p. 233) :

Q. To what religious denomination does the Kepublican party belong African,

560 MILLER VS. ELLIOTT.

Methodist, or Baptist ? A. I believe the Republican party belong to every denom-
ination.

Q. Are you willing to testify that the words " Republican party" were printed on
the ticket that you voted that day ? A. Yes, the word was printed on the ticket.

Q. Who did you vote for for President, Beck or Elliott? A. Beck and Harrison.

Q. Did you vote for bofrh Beck and Harrison for President? A. The same ticket I
voted for Beckinan for V. President I voted for Harrison.

Q. What did you vote for Mr. Sherman for, Congressman or governor! A. I vote
for Mr. Miller for Congressman.

Q. Who did you vote for governor ? Did yon not vote for Sherman ? A. I did not
vote for any governor.

Q. You know who you voted for, do you not? A. I do.

Q. For what office, then, did you vote for Sherman ? A. I did not vote for Sherman
for any office.

. Q. In which box did you deposit your ballot for Miller? A. The one to the right,
with the big hole, for Miller.

Q. Was that the box labelled "Representative in Congress?" A. Yes, that is the
box.

Q. Are you willing to testify that the name of Beck and Harrison were printed on
the ticket which you voted? A. I am willing.

Cross-examination of Sam Simmons (p. 230):

Q. In which hole did you vote for Miller for President the big or the little one?
A. The large one on my right.

Q. In which hole did you vote for Elliott for Congress the big or the little one I
A. I voted in the little hole.

Cross-examination of April Ford (p. 233):

Q. How many ballots did you vote that day ? A. Two.

Q. Did you vote them for Miller for Congress ? A. 1 vote them for Miller for Con-
gress.

Q. Did you notice any difference in the construction of the boxes at the precinct ?
A. No.

Q. For what office was Wm. Elliott running? A. I do not know.

Q. Did you not vote for him for President? A. No ; I did not.

Q. Are you willing to testify that you actually voted for Miller as Presidential
elector ? A. Yes.

Q. Who did you vote for as Representative from this district in the 51st Congress
Harrison or Cleveland ? A. 1 did not vote for Harrison or Cleveland for Congress.

Q. Are you willing to swear that you did not vote for Harrison or Cleveland on
that day? A. Yes; I am willing to swear I did not.

Q. Did you vote in both of the boxes at the precinct that day? A. Yes.

Q. Did you vote two ballots in each of the boxes? A. No; one.

Q. And each of these ballots contained the name of your friend, T. E. Miller? A.
Yes.

Cross-examination of Baalam Burnet (p. 234) :

Q. If I were to call the name of the man for whom you voted for Congressman
from this district, would you know it ? A. Yes.

Q. \Vas it Harrison ? A. Yes, sir.

Q. If I were to call the name of the man for whom you voted in the box for Presi-
dent, would you know it ? A. Yes.

Q. Was it Sherman ? A. No.

Q Was itGarfleld? A. No, sir.

Q. Was it Miller? A. Yes, sir.

Cross-examination of Philip Robinson (p. 236) :

Q. Did you read Harrison's name on your ticket? A. No, sir.

Q. Then you did not vote for Harrison on that day ? A. Yes, I voted for Harrison.

Q. Then you were mistaken were you not when you said just now that you did not
read his name on your ticket ? A. I am not mistaken, because I did not read his
name.

Q. When Chapman read your ticket to you did he read the name of Harrison ? A.
Yes, sir.

Q. Are you willing to testify, of your own knowledge, that you voted for Miller in
the box labeled Presidential electors ? A. Yes, sir.

Cross-examination of Baalam Ford (p. 238) :

Q. Who did you vote for for President, Sherman or Rob't Smalls ?-
vote for either one-

MILLER VS. ELLIOTT.

Q. Are you willing to swear that you voted for Miller in the box labeled for Presi-
dential electors? A. Yes, sir.

Cross-examination of Simon Fraser (p. 242) :

Q. If you voted for Miller for Congress, for what office did you vote for W. F.

yers, governor or President? A. I can not read and can not tell.

Q. Will you swear that the words Republican party were printed on the ticket
which you voted for Miller for Presidential elector? A. Yes, sir.

Q. Will you swear that you voted for Miller in the box labeled Presidential elec-
tors ? A. Yes, sir.

Cross-examination of Bencher Morgan :

Q. Who did you give the tickets to that Smith gave to you ? A. I put them in the
box.

Q. Are you willing to testify that the words, " Republican Party Rally 'round the
Poll" was printed on the ticket you voted? A. I can not tell.

Q. Are you willing to swear that nobody read your ticket to you ? A. No one read
them.

Q. Then you don't know who you voted for for Presidential electors and Representa-
tive in Congress ? A. I do not.

Cross-examination of Ben Harlbeck (p. 244):

Q. If you voted for Miller for Congress, for what office did you vote for W. F. Myers,
governor or President ? A. President.

Q. Are you willing to swear that you voted for Miller for Presidential elector in
the box with the large hole ? A. No.

Q. Are you willing to swear that you voted for him for Presidental elector in the
box with the small hole ? A. Yes.

Cross-examination of Tony Eobinson (p. 248):

Q. Are you Billing to swear that you didn't vote but one ticket on the day of elec-
tion ? A. I voted two tickets.

Q. Are you willing to swear that you voted for Miller for Presidential elector?
A. For President.

Q. If you voted for Miller for President, for what office did you vote for Cleveland;
gov. or senator ? A. None.

Cross-examination by W B. Gruber of Bob Kobinson (p. 249) :

Q. Are you willing to swear that you actually voted your registration certificate
for Tom Miller? A. Yes. sir.

Q. Are you willing to swear that you voted for Miller in the box for Presidential
electors? A. Yes, I did.

Cross-examination of John Lessington (p. 250) :

Q. Will you swear, on your honor as a man, that you did not vote but one ballot
on the 6th of Nov. last ? A. One.

Q. In which box, the right or the left, did you vote for M.ller for Presidential
elector, the big or the little hole? A. There were two boxes, one on the right and
the other on the left, and just as Chapman gave me the tickets I voted them, as he
instructed ; I don't know whether I voted for him in big or little hole.

Q. Will you swear that you actually voted for him that day for Presidential
elector? A. Yes, sir.

Q. If you voted for Miller in one of the boxes, who did you vote for in the other?
A. I did not hear the name of the man.

Q. Did you vote in both of the boxes? A. Yes, sir.

Q. You have already sworn that you did not vote but one ballot that day, now you
swear that you voted in both boxes; will you explain how you voted one ballot in
two boxes? A. I don't know how.

Cross-examination of Jackey Wragg (p. 253) :

Q. Will you swear positively that you did not vote but one ballot that day?

(Objected to on the ground that the question is irrelevant to the issue and intended
to prolong the examination for the benefit of the coutestee.)

A. I voted two tickets.

(Counsel for contestee objects to counsel for contestant stating that witness can
answer as he answered before.)

Q. For whom did you vote for President, Col. Win. Elliott or T. E. Miller ? A. I
voted for Harrison and Miller.

H. Mis. 137 30

562 MILLER VS. ELLIOTT.

Q. Will you swear of your own knowledge that you voted for both Harrison and
Miller for President ?

(By contestant. Objected on the ground that the witness has already answered
the question ; the question is irrelevant to the issue, as the witness has testified al-
ready that he voted for Miller for Congress and Harrison for President.)

(By contestee. Objection is made to above objection on ground that it is unfair
to recall to recollection of witness what he has formerly testified to for the purpose
of enabling witness to answer correctly, and for the further reason that the witness
has not answered that he voted for Harrison for President separately, but both Mil-
ler and Harrison together for the office of President.)

A. I voted for Harrison for Congressman.

Cross-examination of Win. Boggs (p. 254) :

Q. Will you swear that you voted for Sherman for President in the left-hand box
with the small hole?

(Objected to on ground that the question will benefit neither contestant nor con-
testee, and is irrelevant to the issue.)

A. Miller for President.

Cross-examination of Anthony Bartlett (p. 265) :

Q. Will you swear that you voted for Miller in the box labeled Presidential elect-
ors on the right-hand. side with the big hole ? A. Yes, sir.

Q. Will you swear that the words Republican party were printed on your ticket
A. Yes, sir.

Q. Will you swear that you voted for Grant, the Republican nominee for Presi-
dent? A. I don't know anything about him.

Q. If I were to call the name of the person for whom you voted for President would
you know it? A. I don't know, because I can't read.

Q. Did yon ever hear his name ? A. No, sir.

Cross-examination of Moses Field (p. 2G6) :

Q. Will von swear that you voted but one ticket that day? A. Voted one ticket.'
Q. Will you swear that that one ticket contained the name of Beuj. Harrison for
President ? A. Yes, sir.

Cross-examination of Scipio Campbell (p. 268) :

Q. Will you swear that the name of T. E. Miller was not printed on the ticket for
Presidential elector? A. I don't know whether it was on there for President, Sena-
tor, or not.

Q. Will you swear that you voted for Miller for Senator ? A. Yes, sir.

Q. Will you swear that you voted for Harrison in the box labelled or marked Rep-
resentative in Congress ? A. Yes, sir.

Cross-examination of Toby Elliott (p. 269) :

Q. Will you swear that you voted for T. E. Miller in the right box for V. Presd't ?
A. Yes, sir.

Q. Will you swear that you voted for T. E. Miller in the box labelled Presidential
elector ? A. Yes, sir.

Cross-examination of Aaron Judge (p. 270) :

Q. For whom did you say you voted for President that day ? A. Miller.
Q. Are you willing to swear that that is true ? A. Yes, sir.

Q. Are you willing to swear that yoji put the ticket containing Miller's name in
the box labelled Presidential electors? A. Yes, sir.

Cross-examination of Chas. Mitchell (p. 270):

Q. Are you willing to swear that the name of T. E. Miller was actually printed on
the ticket you voted for Vice-President ? A. Yes.

Q. Are you willing to swear that you voted for Mr. Miller in the box labelled for
that officer? A. I voted for Miller in the left box.

Q. Are you willing to swear that that was the box labelled or printed Presidential
electors? A. Yes, sir.

Cross-examination of Titus Wright (p. 271):

Q. Are you willing to swea? that you voted for T. E. Miller for Presidential
elector, in the right-hand box with a big hole? A. Yes, sir.

MILLER VS. ELLIOTT. 563

Cross-examination of Ambrose Morgan (p. 271) :

Q. Are you willing to swear that Dan'l Fields read the words "Republican party"
on your ticket ? A. Yes, sir.

Q. Are you willing to swear that he read those words on the ticket which you
voted for Miller, and that you put that ticket in the box labelled or marked " Presi-
dential electors?" A. Yes, sir.

Cross-examination of Win. Huguinin (p. 272) :

Q. Are you willing to swear that the words Republican party were on the ticket
which you voted for Miller? A. Yes, sir.

Q. Are you willing to swear that you voted for Miller for Presidential elector in the
right-hand box with the big hole ? A. Yes, sir.

Cross-examination of Smith Bowan (p. 273) :

Q. Will you actually swear that you threw two tickets in the box? A. I threw one.
Q. Will you swear that that ticket was voted in the box for Presidential electors ?
A. Yes, sir.

Cross-examination of Mooner Washington (p. 273) :

Q. Did you have your specks on day of election, but haven't got them to-day f A.
Yes, and I can not "read without them.

Q. Will you swear that you voted the ticket with Miller's name on it in the box
labelled Presidential electors ? A. Yes.

The contestee examined O. P. Williams (p. 369), manager; M. A.
Draiuly, clerk (p. 371); Sain'l Driggs, constable (373); B. H. Padgett
(375); J. T. Blanchard, manager (376). In order to show that this
poll was honestly conducted, and everything on the part of managers
was legal and fair, their testimony will be given:

O. P. WILLIAMS, a witness in behalf of the contestee, being duly sworn, says :

Question. State your age, occupation, residence, and where you were on the 6th day
of Nov., 1888. Answer. Age, 33 years; merchant; residence at White Hall, and
was at Green Pond.

Q. In what capacity, if any, were you at Green Pond on that day? A. I was one
of t he managers of election at the Federal box.

Q. At what hour were the boxes opened? A. At seven o'clock a. m.

Q. At what place at Green Pond were the polls held? A. At Hickman's Hotel.

Q. Did the managers expose the boxes to those present when they opened the
polls ? A. Yes.

Q. Did the voters have free access to the polls during the entire day, and did every-
thing pass off peaceably and without hindrance? A. Yes.

Q. Were you present when the polls closed* A. Yes.

Q. Was the canvass of the votes made in accordance with law? A. Yes.

Q. Did you find in the canvass more votes in the box than there were names upon
the poll- list? A. Yes.

Q. How did you dispose of the excess of votes ? A. Mr. Blanchard and Mr. Rice
counted the votes and disposed of the excess.

Q. Did they blindfold or did some one turn their back and draw the excess ? A.
Yes; Mr. Draudy drew them with his back turned to the box.

Q. At the close of the polls, who were permitted to remain in the building during
the count and canvass of the votes? A. The managers were present and the super-
visor, J. F. Brown, and some others; I do not now remember their names. The room
was very small and would not admit of many persons being in there.

Q. It has been tes'ified to that Mr. Rice, one of the managers, during the count
took quantities of the tickets or ballots and tore them up. Is that true ? A. No, it
is not.

Q. Do yon know that a quantity of tickets with the name of William Elliott were
distributed and given out on the day of election ? A. Yes.

Q. Are you well acquainted with the colored people who live in that vicinity and
vote at the Green Pond precinct? A. I am.

Q. Did you, prior to the last election, know that there was a strong sentiment ex-
isting amongst the colored people against Thomas E. Miller? If so, state their rea-
sons as gathered by you from your intercourse and dealings with them ?

(Objected to as leading.)

A. Well, the sentiment was this, that they preferred Smalls; if not Smalls, they
wanted a white man, as Miller was neither one nor the other, and they frequently
cited Mackey.

564 MILLER VS. ELLIOTT.

Q. Then yon know that the colored people did not desire Miller to represent them
in Congress? A. That is my impression, gathered from my dealings with them.

Q. Did you find on opening the Congressional box any tickets folded together ?
A. Mr. Blanchard and Mr. Eice took them out; I did not.

Q. How long after the polls had opened was it before J. F. Brown, the supervisor,
made his appearance! A. I don't remember the exact time, but it was after the
polls had opened ; I sent for him ; I thought he was in the house.

Q. Did he, Brown, make a demand on the managers to open the boxes and let him
see in them ? A. He did not ; 1 suggested to him that if he desirei it I would let him
see in the boxes; that the hour had arrived for opening the polls and I could not wait.
Brown replied and said it made no difference and declined to insist on the boxes bo-
ing opened.

Cross-examined :

Q. Did you or not stay-in the house in which the voting was held the night preced-
ing said voting f A. We got there very late that night and laid down and took a
rest.

Q. Who else besides you were in the house that night? Please name them. A. Mr.
Rice, Mr. Blanchard, Draudy, and Dreggers. If there was any one else in the house
I don't know.

Q. What relation had these gentlemen or any of them to the election that was con-
ducted the next day ? A. Mr. Blanchard and Rice were managers and Mr. Draudy
was acting as clerk ; the others I don't think had anything to do with it.

Q. Who was the Democratic supervisors ? A. We had none.

Q. Did you and the other inanngers stay in the house until time to open the poll at
seven o'clock? A. I did, but Mr. Rice and Blanchard were out a few moments and
returned immediately.

Q. Locking yourselves up in the polling place the night preceding the election and
opening the doors that morning without publicly notifying the voters who had
gathered around, and taking care not to notify J. F. Brown, the supervisor, until after
the voting had commenced, will you here under oath say that you were carrying out
the laws governing you as manager.

Q. As you did not admit citizens to the room during the count because it was small,
why did you and other managers order the windows and doors closed, thus shutting
out the view of a number of citizens who were quietly looking on ? A. I did not or-
der the windows shut, nor do I think any of the managers ordered them slmt. As to
the doors, they had to be closed to prevent the crowd from coming and disturbing us
during the count.

Q. Will yon deny that the window was closed and the back door opening into the
room in which you were conducting the count? A. I don't know that the windows
were closed ; I won't say they were not closed.

Q. Do you not know that the front door was open and a constable placed thereat
during the count f A. I do not know. I don't think there was any one at the door
during the count.

Q. This front door led through a passage to the room in which you conducted the
count? A. Yes.

Q. Do you know the number of Democratic votes at the Green Pond poll ? A. I do
not.

Q. Are you not largely acquainted down there ? A. I am very well known down
there.

Q. Can't you give an approximation of the vote? A. I can not.

M. A. DRAUDY, being duly sworn, says:

Q. State your age, occupation, residence, and where yon were on the 6th day of
Nov. last ? A. Age, 36 ; farmer; reside at Cook's Hill, Verdur Township, and was at
Green Pond polling precinct on the 6th day of Nov. last.

Q. In what capacity, if any, did you act in the election held on that day ? A. I was
clerk of the board of managers at Green Pond.

Q. At what time were the polls opened on that day ? A. Well, sir, when we opened
the polls on that day it was 10 minutes past 7 in the morning.

Q. Were the boxes opened and exposed before the voting commenced? A. Yes,
they were.

Q. Do yon know J. F. Brown ? I do.

Q. How long after the polls had opened was it before he came in T A. I suppose
about 5 or 10 minutes. I don't know exactly how long.

Q. Did the voters have free access to the building and box for the purpose of vot-
ing during the entire day? A. They did.

Q. Were you present when the polls wore closed? A. I was.

Q. Did you assist in canvassing the vote and declaring the election? A. I did.

Q. After opening the box did you find more than one ticket folded together? If
80, state hu\v many and whose name appeared on said tickets ? A. Well, 1 found, on

MILLEE VS. ELLIOTT. 565

drawing the tickets from tbe box from one to five folded together. Thomas E.
Miller's name was on all of them that were folded together.

Q. After you had counted the votes did you find more tickets in the box than there
were names on the poll-list ? A. We did. .

Q. Who destroyed the excess of ballots, and how were they destroyed ? A. Mr.
Blanchard and Mr. Rice destroyed them. I don't know whether they tore them up
or tl.rew them on the ground.

A. They blindfolded me and asked me to turn my back and draw, which I did.

Q. Did you prevent any person or persons from entering the building during the
count? A. We did. We were in a small room and the weather was pretty warm.
We also had the train lying over waiting for us, and we could not have been bothered
with everybody and have been ready for the train.

Q. It haf been testified to here that Rice, one of the managers, during the count
would take tickets out of the box and tear them up. Is that true ? A. I deny any
such charges. It is not true.

Cross-examination :

Q. Where did you stay the night preceding the election ? A. I staid in Mr. Hick-
man's house, the place where the voting was held.

Q. I suppose you did that for the purpose of being early to open the polls, did you
not ? A. I did not.

Q. Why did you stay there that night? A. Well, because I went down on the train
that night and found no other place to stay. Mr. Hickman is a particular friend of
mine, and I always stop with him when I go to Green Pond.

(Counsel for contestant objects to the latter clause of answer, as it is stated under
direction of counsel for contestee, and not the original words of the witness.)

Q. Who else staid with you there that night, and what relation had they to the
couduct of the election at Green Pond? A. Charley Rice, Oliver Williams, T. J.
Blanchard, Samuel Driggers, Rhitt Hickman, Noel Robinson. Myself was clerk for
the Democratic party; Mr. Rice, Mr. Blanchard, Oliver Williams was managers.
Mr. Driggers, Mr. Hickman, they were marshals on the election grounds.

Q. Did thes" parties above named, or either of them, vote at Green Pond on that
day ? A. I can not say.

Q. You say you were clerk ; having kept a poll-list, and knowing these parties
intimately, you can not tell whether or not they voted? A. I never kept a personal
poll-list, but put all of my returns in the box.

Q. Did you keep a poll-list at all? A. Of course I kept a poll-list ; I did not write
it all.

Q. Did you write any of it, and how much ? A. I don't remember how much.

Q. Who else kept the poll-list with you? A. Charley Rice; he acted in my place
a good deal of the time.

Q. Who acted as clerk that night after the poll was closed and the canvass was
being made ? A. Charley Savage done that.

Q. Then you did very little work yourself, but relied on others ? A. I did a heap
of writing during the day, but was only excused for about 5 minutes.

Q. Can you read and write sufficient to keep a poll-list ? A. I can.

Q. How long after the boxes were put on table before front door was opened ? A.
From 2 to 5 minutes.

Q. What was then done after the door was open; did you swear and vote men ?
A. We did.

Q. That was the very next thing in order then? A. It is reasonable that that was
the next thing in order.

Q. Where do Mess. Rice, Blanchard, O. P. Williams, Samuel Driggers, Rhett Hick-
man, Noel Robinson, and yourself reside ? Do you or any of you live in the precinct
of Green Pond ? A. Rice and Blanchard reside in Walter boro' ; myself, I reside about
6 miles below Walterboro', on the Cook's Hill place ; Mr. Diggers reside about 4 miles
below Walterboro' ; as to O. P. Williams I don't know where he was living at that
time; Noel Robinson at that time was living at Green Pond. It is a hard matter to
tell where Rbett Hickman was living; I think somewhere near Walterboro.

Q. Where did you vote on election day last ? A. I did not vote.

Q Why did you not vote at Green Pond, having been there? A. The reason why
I did not vote at Green Pond was because my certificate was not for Green Pond pre-
cinct. I am a citizen of the precinct of Walterboro'.

Q. You being a citi/an of the precinct of Walterboro', Mess. Rice and Blanchard,
two of the managers, living in that precinct, Mess. Driggers and Hickman, two mar-
shals living in Walterboro' precinct all of you acting at Green Pond ou election
day, seems that there were no Democrats, or not enough to even fill the few election
positions; how do you explain such a transfer? A. Well, I don't know.

Q. You said, amongst other reasons for not admitting citizens or some of them to
witness the count, as tbe law requires, that the train was waiting and you all did not

566 MILLEE VS. ELLIOTT.

want to be bothered, or words to that effect. I suppose you attached more importance
to getting on train than in having the votes publicly counted? A. No, we did not.

Q. Then why did you so state in your direct testimony ? A. Well, because in a
close room a man don't want to be smothered down by the heat of other men.

Q. You want to avoid being smothered by the heat of these men ; that being the
case, under what sauitary laws did you find authority for closing the back door and
windows that night of election ? A. I don't know, on that occasion, that any doors
or windows were closed.

Q. Will you under oath say positively that these places were not closed during the
counting that night? A. I don't think they were.

Q. Do you know that they were not closed ? A. If I were called on to say posi-
tively whether they were or not I should say they were not.

Q. Will you swear positively that they were not? A. I can say that they were not
closed as long as I paid any attention.

Q. Will you swear positively that those windows were not closed that night during
the count ? A. I refuse to swear any further.

Q. Do you refuse to answer the question above propounded ? A. I do.

Redirect :

Q. Do you refuse on the grounds as explained by yon to the several questions re-
lating thereto ?

(Objection by counsel as being leading and not in reply to anything newly brought
out.)

A. Yes, I do.

Q. You stated awhile ago that you did not know exactly where O. P. Williams
resided on the 6th of Nov. last. Do you not know as a fact that he lived in the im-
mediate neighborhood of Green Pond station and was merchandizing near there for a
number of years ? A. Well, I did know some time back, but right at that time I did
not know.

Q. You don't know that Blanchard, one of the managers, was conductor on the G.
P. and W. Railroad and spent a large part of his time at Green Pond prior to and
after Nov. the 6th last, do you ? A. I do.

(Counsel for contestant objects to question and answer as not being pertinent, no
question having been raised as to Manager Blauchard's occupation, but to his place
of residence, which this witness has already answered, that he lived at Walterboro'
precinct.)

SAMUEL DRIGGERS, being duly sworn, says:

Question. State your age, occupation, residence, and where you were on the 6th
day of Nov. last. Answer. Age37 years; I reside 3 miles and a half below Walterboro';
farmer ; I was at Green Pond on the 6th day of Nov. last.

Q. In what capacity, if any, did you act at the election held at Green Pond precinct
on that day ? A. I was constable.

Q. Were you present when the polls were closed ? A. I was at the front door, just
a few steps from the box.

Q. Did you prevent the crowd from passing or going in the room when the count
was going on? If so, state what yon done and what was done. A. Yes, I did; and
kept them out. I did not do anything, but kept them out from going in on the
managers.

Q. Did you prevent whites as well as blacks from crowding around the managers ?
A. I did.

Q. Do you know that a number of Elliott tickets were in circulation at the precinct
on the day of election ? A. Yes, sir ; I saw some come in with the voters, and that
they voted them as they said they were going to do.

Q. Were they white or colored people ? A. They were colored, and there was a
few whites voted that day.

Q. Did you have any conversation with the colored voters that day in reference to
Elliott and Miller ; if so state what was said ? A. I saw some of them with whom I
talked. I asked them who they were going to vote for, and some of them said they
were going to vote for Elliott and some for Miller, I believe.

Q Do you believe this or do you know it ? A. I know it.

Cross-examination :

Q. In what voting precinct do you reside, and where did you live on the 6th of
November last ? A. I lived in the Walterboro' precinct, and lived there on election
day.

Q. Do you know the citizens of Green Pond, generally ? A. No.

Q. Name the men who said they were going to vote for Elliott. A. I don't know
their names.

MILLER VS. ELLIOTT. 567

Q. Are yon not frequently in and around Green Pond? A. No; but I go there
sometimes, once or twice a year.

Q. You said some colored men said to you they were going to vote for Elliott.
What office did they say ? A. They did not say what office.

Q. Was Elliott really a candidate that day, and what office was he running for?
A. He was a candidate, and he was running for office of Congress, I think.

Q. From what district was he running? A. Seventh, I think.

Q. Do you know the relative strength voting strength, I mean of the Democrat
and Republican parties at Green Pond poll ? A. No, I doiit.

Q. You said you saw some of the men with Elliott tickets. How do you know
they were Elliott tickets? A. They had them open in their hands and I saw them.

Q. Do you mean to say that you read them yourself? A. I did read them all my-
self; I saw Elliott's name on some of them.

Q. Can you read ? A. I can read a little.

Q. How long were you acting marshal at the door or in the building; were you
there continually during the day? A. I was there acting from seven o'clock uutil
six in the evening. I went one time to the depot and right back. Another time I
went in the kitchen to eat my dinner. Those are the only times I left my post.

Q. State what time of day you went to the depot, and what time of day you took
dinner. A. I suppose it was about 10 o'clock when I went to the depot; about two
o'clock I took dinner.

Q. When you went to the depot, did you pass by many people to get there I A. No.

Q. How near did you pass to any persons in going to the depot? A. I passed some
in two or threee feet of me, the others were further.

B. H. PADGETT, a witness in behalf of contestee, being duly sworn, says:

Question. State your age and occupation, and where you reside. Answer. Age, 33 ;
I am a physician, a merchant, and treasurer and business manager of the Green Pond,
Walterboro' and Branchville Railroad ; I reside at Walterboro'.

Q. Were you at any time on the 6th of November last at Green Pond? A. I was
there at nine in the morning and staid until about eleven ; and from about five in the
afternoon until the polls were closed and the votes had been counted.

Q. Did you at any time after the polls had been closed, and before the count of the
ballots had been finished, enter the room in which the poll was held ? A. 1 did ; and
a few others.

Q. Were you permitted by the managers to remain in that room ? A. I was not;
the managers were counting the votes when I reached the door, and others crowded
in, and we were ordered out, the managers stating that the train was waiting for
them, and they wanted the crowd to disperse so that they could get through counting
the votes.

Q. At what time was the train scheduled to have left Green Pond? A. The train
was scheduled to have left Green Pond at 5.30 p. m., Charleston time, and the man-
agers did not finish canvassing the votes until about 9 o'clock.

Q. Was there any distinction made between white and colored on the part of the
managers in ordering the crowd to leave the room ? A. If there was I did not notice
it. I noticed colored people in the room when I was in there.

Cross-examined :

Q. In what precinct do you reside, and to what party do you belong ? A. I reside
at Walterboro precinct, and belong to the Democratic party.

Q. Were you and others not in the room when W. F. Myers asked for admission and
was refused ? A. I was, but had been ordered out, and was on my way out when I
heard them talking to him.

Q. You stated that colored men were in the room when you were there. How many
of them did you see, and who were they ? A. There were two or three : I did not
know them but one Brown.

Q. Do you know the relative strength of the Democratic and Republican parties at
Green Pond poll ? A. I do not.

T. J. BLANCHARD, a witness in behalf of the contestee, being duly sworn, says:

Question. What is your age ? Answer. Thirty-three years of age.

Q. Where do you reside ? A. Walterboro.

Q. What is your occupation ? A. I am conductor of the Walterboro Railroad, run-
ning between Walterboro and Green Pond.

Q. Where were you on the 6th day of November last ? A. I was at Green Pond.

Q. In what capacity, if any, did you act at the election held for Congressman on
that day? A. One of the managers.

Q. At what time were the polls opened ? A. Seven o'clock, some time.

Q. Do you know J. T. Brown t A. I know Brown who acted as supervisor.

568 MILLER VS. ELLIOTT.

Q. Was he there when the polls were opened ? A. I did not see him.

Q. Was he there during the day ? A. Yes ; I suppose it was five minutes after vot-
ing had commenced, as hrveral had come in and voted.

Q. Was he present when the polls closed, and did he remain in the room when the
canvass of votes was made ? A. Yes.

Q Did the managers exclude colored people and white people alike from the room
while the count was going on ? A. Well, we did not at first, hut after we had started
to count found it impossible to get along without having them removed from where
we were counting, as the entry where we were counting was very small, and the talk-
ing and noise was so great that you could not, hear anything, and we were anxious to
get through and get hack on the train : the train had been already waiting at least
two hours.

Q. Do you know what became of the poll-list kept at the poll that day ? A. It was
put in the box after we got through counting and locked up and brought to the com-
missioner.

Q. Did the voters have free access, to the building in which the election was held
during the day for the purpose of voting? A. Yes.

Q. At the close of the polls was the canvass made, the excess of tickets, if any, de-
stroyed, according to law ? A. They were.

Q. Do you know O. P W T illiams, who acted as one of the managers? A. Yes, sir.

Q. Do you know where he resided at that time ? A. White Hall Station, about
four-and-a-half miles from Green Pond.

Q Do you know that White Hail is in the Seventh Congressional district? A.
Yes.

Q. Is it in the Green Pond voting precinct ? A. Yes.

Q. Do you know that tickets bearing the name of William Elliott for Congress
was circulated at the precinct on the day of election among the voters? A. Yes.

Cross-examination :

Q. At what time did you reach the poll, or reach the place where the voting was
conducted, and who accompanied you ? A. Between twelve and three in the morn-
ing; there was myself, Mr. Rice, O. P. Williams; there was four colored men who
pulled the crank car from Walterboro to Green Pond.

Q. Did you all stay at the house in which the voting was to he conducted next
day ? A We staid in the house where it was conducted.

Q. What relation or connection the others had to conduct of election ? A. There
were at least a dozen who staid in the house who were not connected with the conduct
of election ; Mr. Rice and Mr. Oliver Williams ; I am not sure all the managers slept
in the same room.

Q. Where did the voters come from who voted before the supervisor appeared ;
were they those in the house or some of them f A. They came from the outside ;
they did not sleep in the house, what I saw of them.

Q. Who were they ? A. I don't remember their names or who they were.

Q. Will you testify that none who slept in house the night preceding voted before
the supervisor appeared ? A After the poll were opened and the voting had com-
menced I went to wash my face.

Q. And yet you can not tell who or how many had voted ? A. I was so worn out
from the loss of rest I did not pay any attention to who had voted.

Q. All the managers having slept in the house in a room of which the voting was
conducted did they announce publicly to the large number of voters on the outside,
including J. F. Brown, supervisor, that they were ready to receive votes? A. The
voting was not conducted in the room in which we slept, but in the entry. Yes, they
were all notified ; don't know who was among them, don't know whether Brown was
there or not. I found him there when I came from washing.

Q. This house heing used as private quarters for the managers, do you mean to say
that Brown, as supervisor, and other voters could have gone in until they were in-
vited, or notified that the voting was to be conducted there. A. They were invited
as soon as the polls were open. The house was unoccupied at the time, but I think
Mr. Hickmau's clerk slept there.

Q. Was it not occupied, the night preceding the election, as a lodging place for
the three managers f A. It was the only place we could get.

Q. Do you know the relative strength of the Democratic and Republican parties
at Green Pond precinct? A. No.

Q. Your being a citizen of Walterboro' precinct and another of the managers liv-
ing there, also the entire board being Democratic, was it for the want of material
down there that they had to deprive a majority of the board the right to vote at
home? A. No.

Q. You said you saw Eiliott tickets in circulation that day; was it not in the entry
and on the table or box where the voting was being conducted? A. All around the
precinct.

MILLER VS. ELLIOTT. 569

Q. You saw them circulated ; are you prepared to swear that they were voted ?
A. Some of them were.

Q. You say the room was so crowded that they, the outsiders, were ordered to
leave. About how many was in there, and who were they? A. They were not or-
dered to leave, but simply to move back Mr. May and several others, white and
black.

Q. Who was clerk that day ? A. Mr. Rice, Mr. Williams, and Drawdy, who re-
lieved them.

Redirect:

Q. Do you not know that Mr. Drawdy was regarded as the clerk?

(Objected to as leading.)

A. Yes.

Q. What was the location of the building in which the election was held? A. It
was right in the center of the town, in the most public place in the town, and the
only place that could have been gotten that I know of. The building was about five
steps from the railroad track. -*

Q. Is not that railroad track used as a thoroughfare or walkway for almost if not
every colored man who goes to Green Pond ? A. Yes; and white, too.

Q. What was the situation of the passage-way in relation to the railroad track?
A. The house and passage-way fronted the railroad track.

In reply :

Q. State what part of the entry- way the boxes were located. Was it not in the ex-
treme rear, leading to the kitchen ? A. About the center.

Q. About how many feet from the back door was the table ? A. About ten or
twelve feet.

Now where is the truth H With the five unimpeached witnesses or
with the man Brown ? The bare suggestion, it seems to us, will suggest
the answer without allusion to the law of evidence touching the pre-
ponderance of the testimony. The evidence discloses that there were
from 1 to 5 ballots with Miller's name on them, folded together and
stuffed in the box. Who did it? There is no doubt that Miller's ad-
herents were the ballot-box stuffers there.

JACKSONBORO PRECINCT.

At this poll it is charged that there were 183 ballots, and about 70
were in excess of the poll list. On the evidence of one witness, the
United States supervisor, L. D. Smalls, who testified that he signed the
returns and reported the same as the managers, and who says he ob-
jected to signing at the start because he could not see the names on the
tickets when thoy were counted, and for that reason only, but finally
signed them all, declares the validity of the return to have been de-
stroyed, and with great reluctance conceding to Elliott 46 votes (because
Miller in his brief gives them to him), places all the balance to the credit
of Miller.

Somewhat taken aback, however, it seems, by their own liberality in
allowing to Elliott what Miller himself admits jhe majority deem it
necessary to apologize for the same, which it naively does in the fol-
lowing language :

In his original brief filed with the committee, contestant conceded to contestee 46
votes, the remainder of the 113 not proven to have voted for contestant ; and for that
reason, and because it is now only a question of the amount of contestant's majority, we
state the vote as in this brief, etc.

The italics are ours. It is a noticeable fact in the record that very
few, only 14, of the witnesses for contestant, who say they voted for him,
can read or write, and most of them in the density of their ignorance,
such as we have heretofore illustrated herein, evidently knew as little
about what they were doing as the common run of ten-year-old children.

W. F. Myers, contestant's chief witness, swears (p. 95) that the Demo-
cratic voting strength at Jacksouboro' is " about 70." Contestee got 68.

570 MILLER VS. ELLIOTT.

PORT ROYAL, BEAUFORT COUNTY.

The return shows

Elliott 199

Miller 14

Total 213

All the proof as to this poll is summed up as follows by the majority
(p. 22) :

Fifty-one witnesses (pp. 128-160) testify that they voted for Miller, ami their names
are all on the poll-list as having voted. This evidence stands nncontradicted. Duly
qualified voters were refused permission to vote, and names of Democrats are on the
poll-list as having voted who had moved away and were not present at the election,
thus further discrediting the returns.

And the majority adds 37 to contestant's vote and deducts that num-
ber from coutestee. Taking first the statement that " duly qualified
voters were refused permission to vote," what is the testimony? Two
men only were rejected John Hicks and Benjamin Wroten. John
Hicks says (p. 156) :

Q. Did you offer to vote at the last election; and, if yes, were you ohjected to, and at

what precinct f

(Objected to on the ground that the poll-list is the hest evidence.)

A. Yes, sir ; but I was objected to because they said my register certificate was not

dated right at Port Royal precinct.

On cross-examination he says :

Q. Where is yonr registration certificate? A. At home.

Q. Who said it was dated wrong ? A. Mr. Rodgers was there at the hox, also Mr.
tStickuey and Mr. Bull. I don't rememher who said it was wrong. I think it was
Mr. Stickney.

Q. How was it dated ? A. I can't tell ; I don't remember.

Q. Was it somebody else's certificate t A. No, sir ; I went there and got it myself
and put it away until the day of election ; nobody had anything to do with it.

He had the certificate at home and yet could not produce it. What
proof is there that he was registered at all ? Is it possible to consider
this as " discrediting " the returns f The other rejected voter is Benja-
min Wroten, who says he was rejected because the name on his certifi-
cate did not correspond with the registration book used by the mana-
gers.

On cross examination he says (p. ):

Q. Where is your registration certificate ? A. I have it at home.

Q. How do you spell your name ?

(Ohjected to on the ground that voters are not required by law to spell their names
neither at the time of registering, nor at the poll, to enable them to register or vote.
The supervisor of registration is supposed to spell each person's name correctly on
the registration certificate, and to so copy it on the registration list.)

A. Benjamin Wroten, but I find most people here spell it Roten.

Again the certificate was not produced, and for no earthly good reason.
By referring to the two notices of deposition at page 162 it will be found
that in one his name is spelt "Khoten" and in the other "Koden," while
he was sworn as " Koten." It is upon the foregoing testimony that the
majority finds that " duly qualified voters were refused permission to
vote."

Now as to the next statement, that Democrats who had moved away
were on the poll-list as voters. John McOlellan, p. 142, swears there
were two, J. W. Barnes and T. E. Barnes. On cross-examination he
says :

Q. Do you mean to swear that neither J. W. or T. E. Barnes were in Port Royal ou
election day, or do you mean to swear that you did not see them ? A. T. E. Barnes

MILLER VS. ELLIOTT. 571

was not in this town on that day, and if J. W. Barnes was here I did not see him, nor
for weeks before.

Q. Will you swear that I was not here on election day ? A. No, but I can swear I
did uot see you.

Q. Did you vote in the Presidential box ? A. No, sir ; I did not.

JOHN (his x mark) McCLELLAN.

Why was McClellan, who can not sign his name, relied on to prove
this instead of the Republican supervisor, who could certainly have
proved that these men did not vote I We submit that there is nothing
in this testimony to overthrow the presumption of the correctness of
the return, so as to admit proof as to how each voter voted, as the
majority decides. Of the witnesses who swear they voted for Miller,
twenty-four made their mark. They got their tickets chiefly from
John McClellan, who himself had to make his mark. Fourteen of them
were examined without notice Kit Chisoltn, Cicero Lawton, P. Brown,
A. Black, W. Stelling, H. Jourdaii, S. Anderson, W. Flowers, D. John-
sou, J. Toomer, A. Green, Rich Hey ward No. 1, J. Jones, and A. Moye,
p. 162. They were all objected to on this ground; and each is styled
in the depositions " voluntary."

ST. STEPHEN'S, BERKELEY COUNTY. The objection to this precinct
is that eighty-one persons say they voted for Miller. There was no
proof to overthrow the presumption of the correctness of the managers'
return. Of the eighty-one, fifty-six made their marks to their deposi-
tions. Every one swears that he got his ticket from one Tobe Price,
and the great majority that they relied entirely on his representation
as to its kind. We call especial attention to the following testimony
(page 75) :

JINGO DINGLE, sworn :

Q. State your name, age, residence, and occupation. A. Jingo Dingle; age, 37;
residence, Old Field Plantation; occupation, laborer.

Q. Where were you on the 6th of November, 1888, the day of the last general
election ? A. At St. Stephen's.

Q. Did you vote there that day f A. Yes, sir.

Q. For whom did you vote as candidate for Congress ? A. Mr. Miller.

Q. Who gave you your ticket ? A. Mr. Price.

Cross-ex. :

Q. Can you read and write ? A. No sir.

Q. Then you know you voted for Miller because Price told you so ? A. Yes, sir; he
read the ticket to me and told me so.
(Same objection as to last witness.)

Redirect :

Q. Did you vote the ticket Price gave you ? A. Yes, sir ; the same he gave me.

Q. What is that ?

(Counsel hands witness a ticket, T. E. Miller, Representative for 51 Congress.)

A. That was not the kind of a ticket b.6; read to me.

Q. What kind of a ticket did he read to you ?

(Objected to.)

A. He read Mr. Miller's name to me for Congress.

JINGO (his x mark) DINGLE.

when contestant's counsel showed witness the ticket " T. E. Miller, Rep-
resentative for Fifty-first Congress," he answered " that was not the kind
of ticket he read to me."

Now it is very strange, in this connection, that Price, who gave out
all these tickets, was never sworn to tell what tickets he did distribute,
ifo explanation is given of this failure. As to most of the witnesses,
therefore, there is absolutely no proof what ticket they voted. We give
the following testimony,

572 MILLEii VS. ELLIOTT.

JACOB CAMPBELL, sworn (p. 52) :

Q. State your name, age, residence, and occupation. A. Jacob Campbell ; age, 50
years; residence, Jervey's Chapel ; occupation, laborer.

Q. Where were you on the 6th November, 1883, the day of the last general elec-
tion ? A. At St. Stephen's voting precinct.

Q. Did you vote there that day ? A. I did.

(Objected to, as the poll-list is the best evidence.)

Q. For whom did you vote as candidate for Congress? A. I voted for Smalls.

Q. Who gave yon your ticket? A. Tobe Price.

Q. How many tickets he gave you ? A. One.
.Q. Can you read and write? A. No, sir.

Q. Who was the Democratic candidate for Congress ? A. That man that ran against
Smalls; can't think of his name.
' Q. Do you know if Thomas E. Miller was a candidate for Congress T

(Objected to as leading question.)

A. Yes, sir.

Q. Was Thomas E. Miller the Republican or Democratic candidate \hat day ? A.
I could not exactly tell ; he seem to be pressing very hard for Small.

JACOB t(his x mark) CAMPBELL.

SHIRER MIDDLETON, sworn (p. 80) :

Q. State your name, age, residence, and occupation. A. Shirer Middleton ; age, 57;
residence, Gillinsville ; occupation, farmer.

Q. Where were you on the 6th November, 1888, the day of the last general election ?
A. St. Stephen's.

Q. Did you vote there that day ? A. Yes, sir.

Q. For whom did you vote as candidate for Congress? A. Thomas E. Miller.

Q. Who gave you your ticket? A. Tobe Price.

Q. Can yon read ? A. I can read enough to find the name of Thomas E. Miller.

Cross-ex.

Q. You said you can read, read this [hands witness printed paper and asks him to
read a line thereon]. A. I can not read it, sir.

Q. Can vou read that line [shows witness first line of the heading of the answer of
Wm. Elliott, which read : " Thomas E. Miller vs. Wm. Elliott"] ? A. I can't read it.

JERRY MAURICE, sworn (p. 54):

Q. State your name, age, residence, and occupation. A. Jerry Maurice ; age, 45 ;
residence, Speir's Still ; occupation, farmer.

Q. Where were you on the 6th November, 1888, the day of the last general elec-
tion ? A. At St. Stephen's voting precinct.

Q. Did you vote there that day? A. Yes, sir; at the county and State poll, but
not at the Congressional poll.

Q. For whom did you vote as candidate for Congress ? A. Thomas Miller, but I
did not vote for Congressman.

BEN WILSON, sworn (p. 77) :

Q. State your name, age, residence, ad occupation. A. Ben Wilson; age, 32;
residence. Buck Hall ; occupation, farmer.

Q. Where were you on the 6th November, 1888, the day of the last general elec-
tion ? A. At St. Stephen's voting precinct.

Q. Did you vote there that day? A. No, sir; they would not let me vote.

Q. For whom did you vote as a candidate for Congress? A. Did not vote.

Q. Who gave you your ticket ? A. B. T. Price.

Q. Did you go to the polls to vote? A. Yes, sir.

Q. Who were you going to vote for? A. I was going to vote for Miller.

Q. Did you have your registration certificate with you? A. Yes, sir.

Cross-examined :

Q. Why was it they would not let yon vote ? A. They said my certificate was not
right.

Q. What was wrong about it? A. They never said what was wrong about it.
Q. Where were you living on the day of election ? A. At Buck Hall.
Q. Did the managers ask you any questions ? A. No, sir ; j nst asked me where I was
living.

BEN (his x mark) WILSON.

MILLER VS. ELLIOTT. 573

All these witnesses are included in the 81 allowed contestant, although
several say they did not vote for him. The majority refrain from depriv-
ing contestee of his entire vote only because contestant's counsel did not
demand it, they say.

EVANS' MILLS, ORANGEBURGH COUNTY.

At this poll the majority, while admitting that " there is a conflict"
as to the facts, say the box was stuffed. A careful examination ot the
testimony will show that this is not so. The only witness (T. T. Green,
p. 3.16), speaking of ballots being torn up, says :

For the right number, I can not exactly tell. I suppose about 125, or more, taken
from th'e three different piles.

The Republican precinct chairman came in just after, but Green did
not report a word of the destruction to him. Hazard Barden, Demo-
cratic supervisor, says (p. 386) :

When we went to count the Congressional box we proceeded in like manner. After
tearing up all the Presidential tickets found therein there was an excess in the box
of tickets. I don't remember how many, but a few ; and on the tally which three
kept myself, Dr. Lawton. an I T. T. Green there was a differeuce in the tally of
all three of some few votes. We decided to take the tally of T. T. Green, the Re-
publican supervisor, and the ballots were all put back in the box and stirred up
thoroughly. Dr. A. C. Baxter, jr., was blindfolded and requested to draw out the
excess and tear up in the presence of all without knowing what he tore up ; then we
proceeded to count. After the count we found that there had been seven tickets too
many drawn out and torn up, and to make it fair we put in seven Democratic and
seven Republican tickets, and we blindfolded a colored man by the name of Wm.
Milliard to draw out the seven tickets, and Hilliard, to the best of my knowledge,

drew out five for Elliott and two for Miller.

*******

Q. From whence did you obtain the seven Miller tickets, and to whom did you
first apply for them T A. I applied to Wm. Hilliard for them ; he was a ticket dis-
tributer for the Republican party. He gave me seven tickets and I went to hand
them to the managers, and I looked at the tickets and found them to be Elliott
tickets ; I then applied for more Miller tickets, and they were handed to me by some
one, Baklrick, I think, and they were placed in the box.

Dr. Lawton says (p. 387) :

Q. Can you state how many ballots were found in excess ? A. About seventeen,
according to Green's tally ; that number was drawn out the box, and then votes
were counted and found to be seven less than poll-list.

Q. Can you state the number of votes Miller received as member for Congress f
A. I don't remember; neither Mr. Elliott's.

Q. Did Mr. Miller receive no more votes at that poll than those you gave him in
your official return as manager of election at that precinct? A. All Miller tickets
found in Congressional box were counted for Miller.

Q. Were any found hi any other box? A. There were ; some were found in the
Presidential box.

Q. Can you state how many ? A. I can not.

Q. Did Mr. Miller receive the benefit of those tickets found in Presidential box?
A. He did not; neither did Elliott receive the benefit of his tickets found in same
box.

Q. Are you a Republican or Democrat ? A. A Democrat.

Q. Were the other managers Democrats or Republicans? A. They were Demo-
crats.

W. H. LAWTON, M. D.

So stood the matter when contestee closed his case, his testimony
being strictly in reply to contestant's. In rebuttal, however, contestant
called a large number of witnesses to prove how they had voted (pp.
414-476), whereupon contestee's counsel tiled the following :

Mr. Dautzler, attorney for Win. Elliott, makes the following objections :
1st. That the notice to take testimony is illegal, having been served before the
time of Mr. Elliott in reply had expired.

574 MILLER VS. ELLIOTT.

2d. That objection is made to taking testimony before John H. Ostendorff as notary
public, his name being on the record in the case as one of the attorneys of the con-
testant.

3. That the evidence taken is not in rebuttal.

The objection to Mr Ostendorf being notary wbile being contestant's
attorney on record was certainly valid. He was not only attorney and
notary but also a witness (p. 69), not an uncommon occurrence in this
case. The testimony was certainly not in rebuttal, and should be
ruled out. (See Posey vs. Parrott, page 1 of Eeport.) Of the 142 who
testified, 109 made their mark. The great majority of them say they got
their tickets from Bill Green, the remainder from Tom Allen, Edward
Hartwell, Wesley Shuler, Eufus Fekler, Lee Williams, and William
Billiard. Strange to say neither Bill Green, Tom Allen, Wesley
Shuler, nor Lee Williams is sworn, neither as to the tickets they dis-
tributed and not even that they themselves voted. Edward Hartwell
and Eufus Felder say they voted, but say nothing about the tickets
they distributed. Here is Hartwell's cross examination (p. 444):

Q. Will you read this paper? [Hands witness copy of newspaper. J A. I decline
to read the newspaper.

He had sworn he could read. The other distributer was Bill Hilliard,
who, as testified to by Mr. Hazard Bardin, had Elliott tickets and not
Miller's. We note the following testimony (p. 420) :

STEPHEN WASHINGTON, who being sworn, says:

Q. State your ag, occupation, residence, and where you were on the 6th day of
November, 1688. A. Age, 26; farmer; Floods; Evans Mill.

Q. State for whom you voted as member of Congress from the 7th district on the
6th of November, 1888. A. Green.

Q. Who did you vote for f A. Mr. Elliott.

Q. State from whom did you get your ballot, if you can read, and how many bal-
lots or tickets did you vote for Congressman at the last election. A. Mr. Green ;
can't read ; one.

Q. State at what precinct did you vote, and if any one read your ticket for you.
A. Vance's.

Q. State the name of the person who read your ticket to you, and to what political
party he belongs. A. Green ; Republican party.

STEPHEN (his x mark) WASHINGTON.

He got his ticket from Green and voted for Elliott. Numbers of the
voters swear they received and voted only one ticket. We note three
of these in succession on page 418 Wellfare, Gettress, and Oliver.

Perry Dun (p. 415) says :

Cross-ex'd by Mr. DAUTZLER

Q. How many tickets did he give yon T A. One.

Q. Where did you vote it ? A. In the Presidential box.

Time and again witnesses who swore they could read refused the
test on cross-examination. Here are samples :

Cross-ex, (p. 438) :

Q. Did you read your ticket ? A. Yes, sir.

Q. Tell me exactly what was on that ticket? A. 7th Congressional and Miller.
Q. Is that all ? A. That is all I can remember just now.
Q. What Miller was that? A. T. B. Miller.

Q. You say you can read ; read this [hands witness copy of newspaper]. A. I re-
fuse to read for you.
(Same objections.)

ELLISON (his x mark) HUGGINS.

Cross-ex, (p. 439) :
Q. For what Miller did you vote? A. T. A. Miller.

MILLER VS. ELLIOTT. 575

Q. Can yon read [offers paper to read] ? A. Yes, I can read, bntl decline to read.
(Same objections.)

BRANTLY (his x mark) MOORER.

Cross-ex. :

Q. For what Miller was it that yon voted? A. Thomas Miller.
Q. You stated yon can read a little, read this for me? [Hands witness copy of news-
paper.] A. I am a little hungry; don't feel like reading now.
(Same objections.)

DUDLEY (his x mark) EVANS.

EASTOVER, HIGHLAND COUNTY.

The return from this precinct not having been sent up in time the
votes were not canvassed and not included in the result. The majority
say:

M. Johnson, the Republican supervisor, testifies (p. 319) that the Miller tickets
tetre printed on coarser and darker paper than the Elliott tickets, and that when folded by
the ticket distributors, MULr's name could be seen ; that the name was printed in larger
letters than Elliott's name , that he watched the voting and kept a tally of the voters,
and that Miller's vote was not less than 248 nor more than 257 (some tickets not cer-
tain), and that Elliott's vote was from 83 to 92.

It was upon this kind of proof as to the vote cast that the supervisor
made his return, and it is substantially the only proof as to the vote
cast introduced by contestant in chief, no voter being called to prove
his vote. Contestee then had the manager's return and poll list proved
and had the ballots in the box produced and counted, which verified
the return- thus :

Elliott 26-2

Miller , 87

Simmons 36

Total 385

On November 21, 1888, contestant had filed the following with the
State board of canvassers :

EXHIBIT C. J. T. B.

In the matter of the election of a Representative to the 51st United States Congress
in the Seventh Congressional district of the State of South Carolina.

To the honorable the Board of State Canvassers .

The undersigned, a candidate for Representative to the 51st Congress in the Sev-
enth district for the State of South Carolina, begs leave to suggest and give informa-
tion to your honorable board that in respect to the statement and return of the county
hoard of canvassers for Federal elections for Richlaud County, the said board has not
included in their statement the poll cast at the precinct of Eastover, in said county
and in the Seventh Congressional district, upon the ground, as the undersigned is
informed, that the return from said precinct had been defectively made; that the
undersigned was not aware of such fact while said board was iu session, and has just
come into possession of such information long after said board had finally adjourned ;
that it appears by a statement made by the managers on the poll-list of said box, but
not signed by the managers, that the undersigned, William Elliott, received 262 votes,

Thomas E. Miller 87 votes, and Simmons 36 votes, giving the undersigned a

majority over Thomas E. Miller of 175 votes ; that the undersigned is informed and
believes that votes cast and in the box at said precinct exactly correspond with the
statement of the vote made upon the poll-list and now in your possession. All of
which facts and things may be verified by an inspection of the papers sent down to
your body and the votes in said box.

The undersigned therefore respectfully begs that this suggestion niay be filed by
your board in the records of the election in the Seventh Congressional district.

WILLIAM ELLIOTT,
Per B. L. ABNEY,

Att't/for Wm. Elliott,

NOV. 21, 1888.

576

MILLER VS. ELLIO'lT.

After all of contestee's testimony was in, contestant, in violation of
the law, as at Evans Mill, look in rebuttal and against objection the
testimony of 197 witnesses to swear to their vote, the same not being in
rebuttal. He also gave contestee's attorney notice of deposition
before three notaries at the same place, at the same hour, to which
objection was made, as well as to the questions being printed instead
of written, which was common on the part of contestant. The testi-
mony is of the same general character as that heretofore noted. We
call attention to the following ruling of N. F. Myers, notary (p. 52G) :

Q. When you voted that day did you show your registration ticket ? A. Yes, sir.

Q. Have you that ticket, now ? A. Yes, sir.

Q. Let me see it.

(Notary public refuses to let the witness produce registration ticket, as counsel
for contestee is not a judge as to competency of voters.

Counsel for contestee objects to ruling on the following grounds: That the witness
has stated that he voted at the Congressional election and it is desired to show
whether or not he was legally qualified to vote ; 2d, that the notary has no right to
rule 'on questions of law, as he has already ruled himself that his duties were purely
ministerial and not judicial in their character.)

Myers, as will be remembered, was an important witness for contest-
ant as well as notary in Colletou County. To show how he was in-
fluenced as notary by his interest for contestant we refer to his ruling
in Colletou County, already mentioned, where he declined to exclude
from the room witnesses for examination on the ground that his was
"merely a clerical position with not a xhadow of judicial powers."

In this connection we call attention to the fact that in addition to the
above and that John LI. Ostendorf was contestant's attorney, notary,
and witness, there were these other witnesses: J. F. Brown was no-
tary, page 92 ; witness, page 294. Jno. C. Eue was notary, page 97 ;
witness, page 452. T. J. Eeynolds was notary, page 543 ; attorney,
page 128. H. D. Edwards was attorney, page 459 ; witness three times,
pages 302, 310, 324.

BEN POTTER'S PRECINCT.

The majority say :

Ben Potter precinct. In this precinct there is a difference between the return of the
United States supervisors and that of the precinct managers; the supervisors return-
ing 41 as voting, and the managers 141. The evidence here is conflicting, and we do
not find it necessary to decide which is the true return.

In order to show the facts as to this precinct we quote from coutestee's
brief, p. 131, the following which is sustained by the testimony:

The managers' return gives Elliott 141 votes, Miller none. Contestant attacks this
return, alleges that 103 votes were illegally and fraudulently given coutestee, and
contends that the true return should have been

Elliott 38

Miller 3

Total 41

To sustain this he relies on the testimony of J. H. Johnson, supervisor (p. 46), who
swears that but 41 votes were cast; that Elliott got 38 and Miller 3, and that he and
the Democratic supervisor, W. H. Parsons, signed such a return and forwarded it to
the chief supervisor. Instead of making out a case of fraud against the Democratic
officials the testimony discloses a disgraceful series of crimes on the part of contestee's
adherents.

In the first place, Parsons was not the Democratic supervisor, but W. P. Gardner
was. (See certificate of clerk of U. S. Circuit Court, p. b'67.) The copy of Johnson's
return put in evidence was not certified to by the chief supervisor, but by contest-
ant's notary (p. 661). When the original return was examined by contestee's attor-
ney, it was found that there had been a clumsy attempt at changing the figures

MILLER VS. ELLIOTT. 577

changing the total vote from 141 to 41, and changing Elliott's vote from 141 to 38,
and giving Miller 3 votes. Thereupon, con testee had the paper examined by E. H.
Sparkman, cashier, and gave notice of his examination at the office of the clerk of
U. S. Circuit Court, when the original was tiled, on 2d April. The return was seen
and examined on 1st April by both Sparkman and Hon. H. K. Jenkins, contestee's
attorney; but it had disappeared during the night all the custodians being Republi-
cans and on the 2d could not be produced, having been sertt out of the State tor no
reason whatever. Sparkman was examined as to the above changes and testified to
them. Contestant was present and objected to Sparlcman's testifying as to the forgeries
without the paper being produced. He subsequently admitted to Mr. Jenkins that he
had "got information yesterday that you were going to examine an expert as to eras-
ures and forgeries."

We give the following testimony :
E. H. SPARKMAN, sworn (p. 395) :

1. Q. State your name, age, occupation, and residence. A. E. H. Sparkman; 43
years ; cashier in bank ; Charleston.

2. Q. Does your occupation require that you should pay particular attention to
written instruments, with a view to detecting forgeries, alterations, erasures, etc ? A.
It does.

3. Q. Did you examine the return of a supervisor of elections which was on file in
this office, or in this room or building for Ben Potter's precinct on yesterday ?

(T. E. Miller objects to the above question on the ground that there is no proof of
there being any return on file in any room or any building anywhere in the world in
these records.)

A. I examined a paper which was submitted to me, and which, I think, I could
identify if produced again.

4. Q. Where did you examine this paper? A. In this room, clerk's office of the
United States circuit court.

5. Q. Do you remember anything peculiar about the appearance of that paper ; if
so, state what?

(T. E. Miller objects on the ground that the paper is the best evidence of its pecu-
liarity, and witness is not competent to testify about its condition until the said
paper has been produced or it is proven that the said paper is not in existence.)

A. The paper bore evidence ol alteration in some of the figures and erasures in
oth -rs.

K. Q. Can you state what those alterations and erasures were ? If you can please
do so.

(T. E. Miller objects because the paper or supervisor's report is the best evidence
of its condition.)

A. I would say that in my opinion the original returns called for 141 votes, and was
so altered as to read 41. Lower down on the same paper the same figures, 141, were
changed to read 38 ; next lower, comes the figure 3, representing the vote for some-
body, who, I don't remember. On the next two succeeding lines below, on each, there
is the figure 3 with a line drawn horizontally through each.

Cross-examined by T. E. MILLER:

The cross-examination consists chiefly of elaborately prepared ques-
tions as to forgeries, of which we give the following:

12. Q. Are you an expert in handwriting ? A. I have been examined as such.

13. Q. Can you distinguish between the writing that is intended to mislead, or to
make one believe that it is done by one and the same person ? A. I have found dif-
ferences in handwriting by comparison which detected the forgery.

14. Q. I have here a paper with the name of Thomas E. Miller written forty-nine
times, the key to which is in an envelope. Please tell me, if you can, whether all of
the forty-nine names were written by one and the same person, and I state that No. 2 on
this paper is a [H. K. Jenkins objects to this question until he can see what the key
is or how it is intended to be used] genuine signature, and you will so find it stated
in the key. A. In the forty-nine signatures submitted there is an evident attempt to
mislead, which makes it quite possible that they were all written by the same per-
son.

We give a part of the testimony of H. K. Jenkins, contestee's counsel,
who was compelled to testify later as to the abstraction of the record.

HAWKINS K. JENKINS sworn (p. 400) :

My name is Hawkins King Jenkins ; my age, 29 years ; occupation, attorney and
counsellor at law, and I reside in Mt. Pleasant, S. C. I am one of the counsel for
Col. Elliott in this contest. As such counsel, on the 30th day of March last, I served

H. Mis. 137 37

578 MILLER VS. ELLIOTT.

Genl. S. J. Lee, who accepted service as attorney for the contestant, with notice that
I would examine Mr. E. H. Sparkman on the Tuesday succeeding, at the custom-house
in Charleston, at 2 o'clock p. m., on behalf of Col. Elliott. During a short conversa-
sion which I had with Genl. Lee at that time, he said that he would like to know
what I was going to examine Mr. Sparkman about, and asked who Mr. Spavknian
was. I replied, " I will tell you at the examination. I am going to examine him as
to Ben Potter's. On Monday, the 1st of April, Mr. Sparkman was taken into the
office of clerk of the circuit court of the United States for the purpose of having
him examine the return of the United States supervisor for Ben Potter's precinct.
This return, along with the others, had been kept in that office, where I had exam-
ined it carefully on two occasions. I had noticed that the figures on this return had
heen changed and erasures had been made, so as to show a total vote of 41 instead of
141, and a vote of 38 for Col. Elliott instead of 141. I therefore determined to call an
expert, and summoned Mr. Sparkman, who I knew had been used as such on former
occasions in the State court. On Tuesday, at the hour appointed, I went to the cus-
tom-house with Mr. Sparkmau and S. Porcher Smith, notary public. After a few
moments Mr. Miller and W. H. Berney, esq., his notary, came in. I asked Col. Hagood,
the clerk of the circuit court, from whom I had gotten them on former occasions, to
let me have or see the supervisor's return for Ben Potter's. He said tkey were not
there. I asked him where they were. He said, " I have sent them to Washington."
I replied, "Why, they were here yesterday, for Mr. Sparkman examined the returns
for Ben Potter's at that time." Mr. Hagood replied, " I know that, but I sent all of
the supervisors' returns to Washington by this morning's mail." I think he said that
he had sent them to Col. Poinier. We then examined Mr. Sparkman. At the close
of his testimony I remarked to the contestant, "You seem to have expected evidence
as to forgeries." He replied, "Yes, I did." I asked him, " What made you expect
it?" He replied, " Well, the examination is over now, and we are talking as men,
and I don't mind telling you that I got information yesterday evening that you were

foing to examine " I don't remember whether he said Mr. Sparkman or an expert
think he said an expert " as to erasures and forgeries." Mr. Hagood is a Republican,
and so is Col. Poinier, the chief supervisor. In the conversations given above I think
I have given the exact words. I have certainly given the exact meaning or import
thereof.

(All of the above testimony is objected to by counsel for contestant as irrelevant,
hearsay, and inadmissible, who gives notice that at the proper time and place he will
move to strike the same out of the record.)

Cross examined by S. J. LEE.

2. Q. Do you know at whose request those records were sent to Washington? A.
I know that Col. Hagood was informed by Col. Elliott (or at least I do not know of
my own knowledge), upon the authority of a letter from Col. Poinier addressed to
Col. Elliott, which I have in my possession, that it was not necessary to forward the
original returns to Washington or to him, but that Col. Elliott might have copies
made of any which he needed, and that if Col. Hagood would write out the certificate
and forward the copies with the certificates so written, he would cheerfully sign the
same.

3. Q. You have not answered my question. With Col. Poinier's letter in your pos-
session did you call on Col. Hagood and ask him to make the copies referred to, and
forward them to Col. Poinier ? A. I did not intend to evade answering your question,
and will now state that I do not believe that Col. Hagood was requested by any Dem-
ocrat or by Col. Poinier to forward the records or any part of them to Washington;
he was certainly not requested to do so either by Col. Elliott or myself, as we both
knew that we would need this particular return on Tuesday for the purpose of sub-
mitting it to an expert. In reply to your last, question I would say that I did not ; I
bt-lieve that Col. Elliott asked that copies should be made and forwarded with certifi-
cates as directed in Col. Poiuier's letter to him, but "Ben Potter's" was not among
the numher ask. d for. I say this because I was present when Col. Elliott made a
list, in Col. Hagood's oih'ce, of differerent records of which he desired copies. He took
the " Ben Potter's " return out of the package ; we examined it together ; I reminded
him that contestant had put in a certified copy of it, and he replaced it in the pack-
age, and said, "we would not need a copy." At that time I did not have Col.
Poinier's letter in my possession.

4. Q Who were present when you and Col. Elliott examined that return? A. Col.
Hagood's clerk was in the room, and a part of the time, I think, a gentleman named
Seiguious. Col. Elliott and myself examined the papers at Col. Poinier's desk in one
corner of the room ; several people passed through the room while we were there.

5. Q. Who was present with you when yon first examined that return? A. Col.
Elliott was with me.

On 13th of April, after coutestee's time to take testimony had ex-
pired, the return is produced by contestant's witness B. A. Hagood,

MILLER VS. ELLIOTT. 579

deputy clerk United States circuit court (p. 455). Not a word of ex-
planation is given of its disappearance, nor of its restoration. Mr.
Hagood, on cross-examination, testifies that there had been an erasure
of one figure before the figures 41 the whole vote for member of Con-
gress and that under the figures 38 the vote given Elliott he could
see 41, and that there was an erasure before 38, showing undoubtedly
that the vote originally given Elliott was 141. Although contestee
was thus prevented from showing by an expert this forgery, yet it is
as clearly proved as if a hundred experts had testified to it.

So stood the matter at the close of the taking of testimony and after
contestee's brief had been filed. When contestant put in his brief in
reply the following appeared therein, dated six months after the testi-
mony had been closed :

UNITED STATES OF AMERICA,

District of South Carolina :

Personally appeared B. A. Hagood, deputy clerk of the United States circuit court
for the district of South Carolina, who deposes aud says : That the returns of the Fed-
eral supervisors of election for the precinct of Ben Potter's, in the county of Berkeley,
in the Seventh Congressional district of the State of South Carolina, were in the cus-
tody of the clerk of this court, aud were never out of the office of the clerk except
when on the 2d of April, 1889, they were, with other returns, sent by the clerk to the
chief supervisor of elections, who at that time was in the city of Washington, D. C.,
in order that the said chief Supervisor might, under his hand and seal, certify to the
correctuessof certain copies thereof forwarded with said originalsat the same time, said
copies being made for and at the request of William Elliott, coutestee. That they
were sent in pursuance to a letter received from the chief supervisor of elections,
which said letter contained the following :

"WASHINGTON, D. C., March 28, 1889.

"Be kind enough to let Mr. Elliott have free access to all the records of the super-
visor's office. If he finds any that will be of service to him in his contest let him
have copies made of them. If you or your father will icrite the certificates, that they are
true copies and will forward them to me, I will sign them."

Copies of returns having been made they were, in accordance with directions from
chief supervisor, forwarded to him at Washington, D. C., and but for the aforesaid
request the returns would have been in the office of the clerk.

Sworn and subscribed to before me this 15th day of November, 1889.

[SEAL.] B. A. HAGOOD,

Dep'ty Cl'k D. S. Ct. Court Diet. S. C.
JULIUS SEABROOK,

Dep. C. D. C. U. 8. S. C.

The italics are ours.

As already stated, Mr. Hagood had been examined in the case, and
had said not a word about the disappearance of the return, which he
then produced, but six months afterwards he made this affidavit. But
it does not at all help the matter, because the letter of the chief super-
visor says distinctly that the copies, with the certificates written out,
were only to be sent. In fact, it proves beyond a doubt, and by written-
testimony, that the originals were not to be sent from the office. More-
over, Mr. Jenkins testified that contestee did not want a copy of the
return from this precinct and had not asked for it, because contestant
had already put it in evidence. We have not time to comment further
upon the foregoing testimony, the true character of which every one
must understand.

PKIVATEER, SUMTEE COUNTY.

The majority say :

The same is true of Privateer precinct, Sumter County, where Elliott is returned
by the managers as receiving 130 votes, and by the supervisors as receiving 88.

580 MILLER VS. ELLIOTT.

That is, " the evidence is conflicting and we do not find it necessary
to decide which is the true return." In the first place this charge was
never made in the notice of contest. In the second place, there is no
evidence whatever, except the return of the Republican supervisor, not
supervisors, as the majority say, and that of the managers. Contestant
did call a witness who was " distributing tickets and keeping a memo-
randurn of the voting" at this very place, R. (3. Andrews (p. 31), and
yet he was never asked a word about this charge. The managers' re-
turn and poll-list will be found at pages 052, G53. Contestant in his
brief (p. 53) asserts that the return was that of the " Democratic super-
visor." The record shows (p. G68) that he was not the Democratic but
the Republican supervisor. Why was not this alleged fraud made a
ground of contest, or why was not this supervisor called to prove it '

COOPER'S STORE.

We dissent entirely from the conclusion of the majority as to this
precinct, but as their action only makes a difference of two votes we
will not discuss it.

We have considered all the cases in which the majority has made
any change in the vote as returned and have given our views thereon,
together with the testimony. We do not agree with the majority in
their conclusion, but conceding, for the purpose of the argument, that
they are correct in all respects excepting as to the 1,000 votes alleged
to be found in the wrong box and given contestant, still the contestee
would have a majority of 243.

We would therefore offer the following substitute for the resolutions
of the majority :

Resolved, That Thomas E. Miller was not elected a Representative
from the Seventh district of South Carolina to the Fifty-first Congress.
" Resolved, That William Elliott was duly elected, and is entitled to
retain his seat.

R. P. C. WILSON.

C. F. CRISP.

CHARLES T. O'FERRALL.

LEVI MAISH.

L. W. MOORE.

J. H. OUTHWAITE.

FRED S. GOODRICH vs. ROBERT BULLOCK.

SECOND FLORIDA.

The grounds of contest set out in the notice are, in general, refusal
to receive legal votes tendered, false counting, false returns, destruc-
tion of ballot boxes, and the commission of various other frauds by the
election officers.

The committee find that by the illegal action of registering officers in
refusing qualified voters permission to register, or arbitrarily striking
their names from the list, and of election officers in refusing to receive
legal votes tendered, as well as by some instances of the other frauds
charged, the contestant was deprived of a sufficient number of votes
legally cast or tendered for him to have given him a majority had they
been counted.

The minority find some votes illegally rejected, but that most of the
votes in question were properly rejected, the voters having failed fully
to comply with the registration and election laws of Florida. The evi-
dence relied on to sustain the other charges is insufficient, and the
number of voters illegally rejected being much less than the majority
returned, contestee is still entitled to the seat.

This case was never reached by the House.

(1) Registration. When new certificate necessary under Florida law.

A new certificate of registration is not a conditions-precedent to vot-
ing, under the Florida law, when a voter has moved from one house to
another within a voting district. " While the law provides for issuing a
new registration certificate to a voter who has changed his residence,
either within the precinct or to another one, it does not require such a
new certificate as a condition-precedent to voting when the change of
residence is within the precinct or voting district. On the contrary, it
expressly provides that a new certificate shall be necessary if the
change of residence is from one voting district to another, thus imply-
ing that it shall not be necessary if the change is not from one voting
district to another. Inclusio unius, exclmio altering."

(2) No registration. In a county, vote counted.

Where the governor failed to appoint a supervisor of registration for
a county, and there was consequently no registration as provided by
law, but the election was held under the old registration, and no harm

581

582 GOODRICH VS. BULLOCK.

appears to have been done, held, that the vote of the county should be
counted. " The committee are clearly of opinion that voters complying
with all other requirements of the law can not be disfranchised by the
neglect of public officials to furnish them opportunity to register."

(3) Ballots. Distinguishing mark.

Where the statute provides that " The voting shall be by ballot,
which ballot shall be plain white paper, clear and even cut, without
ornaments, designation, mutilation, symbol, or mark of any kind what-
ever, except the name or names of the person or persons voted for and
the office to which such person or persons are intended to be chosen,
which name or names and office or officers shall be written or printed,
or partly written and partly printed, thereon in black ink or with black
pencil, and such ballot shall be so folded as to conceal the name or
names thereon, and so folded shall be deposited in a box to be con-
structed, kept, and disposed of as hereinafter provided, and no ballot
of any other description found in any election box shall be counted,"
held, that an asterisk, so small as to escape attention, printed on the
lower corner of the ticket, did not constitute a distinguishing mark
within the meaning of the statute.

(4) Ballots. Distinguishing mark.

Where certain tickets were "scratched" in red or purple ink, instead
of the black ink required by law, the colored ink being the only ink to
be had in the only store in the place, held, that the votes should be
counted. "The committee do not think that under the circumstances
these voters should be disfranchised, notwithstanding the terms of the
statute, as the marking was not done for any improper or unlawful
purpose and the use of this ink was, in a manner, compulsory. (See
McCrary on Elections, sections 400, 401, 404.)"

(5) Ballots. Distinguishing mark.

Ballots rejected because of scarcely visible specks, and those rejected
because of a printer's dash in a place where no person was named for
a particular office, were improperly rejected.

(6) Ballots. Distinguishing mark.

Ballots rejected because the name of a candidate for justice of the
peace was written in with a red pencil should be counted.

(7) Ballots. Distinguishing mark.

Ballots rejected because of a printer's dash separating each name on
the ticket should be counted.

(8) Ballots. Distinguishing mark.

Ballots rejected because of pencil marks on them made by the judges
of election in pushing them into the box with a pencil should be counted.

(9) Ballot boxes. Stolen.

Where the ballot boxes were stolen and no returns were made the
committee count the votes upon satisfactory proof of how they were cast.

REPORT.

AuauST 4, 1890. Mr. ROWELL, from the Committee on Elections, sub-
mitted the following report:

The Committee on Elections, having had under consideration the con-
tested-election case of Fred S. Goodrich vs. Robert Bullock, from the
second Congressional district of Florida, submit the following report:

The second district of Florida is composed of the following counties:
Madison, Hamilton, Suwannee, Columbia, Baker, Nassau, Duval, Clay,
Bradford, Alachua, Putnam, Marion, Suinpter, Lake, Orange, Osceola,
Dade, Brevard, Volusia, and St. John's.

The contest in this case is confined to the following eleven counties:
Dade, Columbia, Putnam, Volusia, Orange, Marion, Nassau, Alachua,
Hamilton, Duval, and Madison.

The grounds of contest, set out in the notice, are, in general : refusal
to receive legal votes tendered, false counting, false returns, destruction
of ballot-boxes, and the commission of various other frauds by the
election officers.

Under the constitution of Florida residence in the Stater one year, in
the county six months, registration, and the age of twenty-one years are
the qualifications for native-bora electors. Foreigners are placed on
the same footing as natives after having declared their intention to be-
come citizens. There is the usual disqualification for conviction of
crime.

The result of the election in the second district, as declared by the
State canvassing board, was:

Kobert Bullock 20,012

Fred. S. Goodrich 16,13

Majority for Bullock 3,195

The first general question necessary to be examined, in order to arrive
at a correct understanding of this case, is that of registration.

At its session in 1887 the legislature of Florida enacted a new regis-
tration and election law, copied largely from the South Carolina elec-
tion law, but in many respects more just and equal in its provisions,
and, when executed according to its letter and spirit, calculated to se-
cure reasonably fair elections. Some of its provisions would, in a proper
case, be held to be inoperative, as going beyond the constitutional limit,
but these provisions are not involved in this case to any material ex-
tent, and will not be discussed here. The complaint in this case is not
against the laws, but against the manner of executing them.

The registration is, in a manner, permanent ; one registered for any
particular county and precinct is permanently registered for that precinct
until, by removal or conviction of crime, he forfeits his right to remain

583

584

GOODRICH VS. BULLOCK.

on the registry. The new law of 1887 preserves the registration then
existing.

A registered voter may apply for and receive a certificate of registra-
tion, but it is not necessary for him to have such certificate to entitle
him to vote. It is evidence of his right, but it need not be presented
at the polls except when, for any reason, his name does not appearupon
the registry book in the hands of the precinct managers of election.

Each county has a supervisor of registration, having an office at the
county seat which he is required to keep open at least three days in
each week, from 9 to 12 a. in. and from 1 to 5 p. m., from the first Mon-
day in August to the last Saturday preceding the first Monday in Oc-
tober in each year in which there is a general election. The supervisor
is required to appoint a district registering officer for each election dis-
trict, whose duty it is to register the votes of his district and who is
required to keep his books open at some convenient place in his district,
at least two days in each week, between the same hours as provided for
the supervisor, during the month of September in each year of general
election. Voters may register either with the district registering officer
or with the supervisor. On removing from one residence to another
voters are entitled, on application, to receive a transfer of registration
and a certificate of transfer. This right is not confined to the days of
registration or to the mouths in which original registration may be had.

The county commissioners are required at their October meeting to
review the work of the supervisor of registration and to hold special
meetings for that purpose. They are required to publish the names of
all persons stricken from the rolls, and the supervisor is required to
restore to the rolls all names ordered by the commissioners to be so re-
stored.

Much of the evidence in this case is directed to the misconduct of
supervisors of registration and of district registering officers. Other por-
tions of the evidence are directed to the misinterpretation of ihe law by
managers of election. The misconduct of registering officers consisted
in unlawfully striking from the books large numbers of duly registered
voters, in refusing or neglecting to restore the names ordered to be re-
stored by county commissioners, in keeping their offices closed on days
of registration, in unreasonably delaying applicants, in unlawfully re-
quiring colored applicants to prove their places of residence by white
witnesses known to the registering officers, in unlawfully refusing or
neglecting to make transfers on due application, in furnishing unequal
facilities for registration, as between their party friends and their party
opponents, and in fraudulently registering persons not qualified.

Complaint is made, in some instances, against county commissioners
for failing to meet to revise the work of the supervisors, and to order
restored those names that had been unlawfully stricken from the books.

Managers of election unlawfully refused to receive the ballots of col-
ored Republican voters who were duly registered, and whose names
were on the registry books in the hands of the managers, because they
did not present their registration certificates. They also refused to ac-
cept such certificates as proof of the right to vote of voters whose names
had been unlawfully stricken from the rolls.

They also refused to accept the tendered votes of Republicans who
were marked as having moved within the precinct in which they were
registered. In many instances this removal had not, in fact, taken
place, and when it had it did not disqualify the voter, under the law, from
voting. While the law provides for issuing a new registration certifi-
cate to a voter who has changed his residence, either within the precinct

GOODRICH VS. BULLOCK. 585

or to another one, it doe$ not require such a new certificate as a con-
dition precedent to voting when the change of residence is within the
precinct or voting district. On the contrary, it expressly provides that
a new certificate shall be necessary if the change of residence is from
one voting district to another, thus implying that it shall not be neces-
sary if the change is not from one voting district to another. Inclusio
unius, exclmio alterius.

The evidence in the case is voluminous, covering all the irregularities
which are noted, and which will be referred to more in detail as we con-
sider the vote in the various counties and precincts.

BADE COUNTY.

The vote in Dade County was: Bullock, 95; Goodrich, 45. It is
claimed by contestant that this whole vote should be rejected, because
no registration was had in the county under the statute. It appears
that no supervisor of registration was appointed in this county until
after the election. This was not the fault of the voters, and we do not
think they should be disfranchised because of the failure of the gov-
ernor to commission a supervisor of registration, as required by law. The
old registration was in existence, and the election was held under it in
full compliance with the law, with the exception noted. The committee
are clearly of opinion that voters complying with all other requirements
of the law can not be disfranchised by the neglect of public officials to
furnish them opportunity to register.

COLUMBIA COUNTY.

District No. 7. Ten duly registered and legally qualified voters ten-
dered ballots for contestant and were rejected. (Record, pp. 184, 189.)

District JVo. 4. Twenty legally qualified and duly registered voters
tendered their ballots for contestantand the ballots wererejected. They
were then handed to the United States supervisor, were preserved, and
are in evidence. (Record, pp. 184, 185.)

District No. 5. Thirty-three qualified voters tendered ballots for con-
testant, which were rejected by the inspectors, but were received and
preserved by the United States supervisor. (Record, pp. 186, 188.)

District No. 10. Forty ballots tendered for contestant by qualified
voters were rejected. They were then delivered to the Democratic
county judge, ana by bin. preserved. All these voters were duly reg-
istered and their names were on the registry list in the hands of the in-
spectors. (Record, pp. 86, 87.)

District No. 8. Thirteen ballots tendered for contestant by qualified
voters were rejected by the inspectors, and then received and preserved
by the United States supervisor. (Record, pp. 181, 182.)

District No. 2. Three ballots tendered for contestant by duly quali-
fied voters were rejected. (Record, p. 183.)

District No. 6. Five ballots tendered for contestant by duly qualified
voters were rejected. (Record, pp. 183, 184.)

District No. 3. Three ballots tendered for contestant by duly quali-
fied voters were rejected. (Record, p. 189.)

These 127 voters were all residents of the several precincts at which
they offered to vote, had been duly registered, tendered their votes, and
were refused the right to vote under various pretexts, none of which
were valid. No attempt has been made to rebut the evidence proving
the above facts. One hundred and twenty-seven votes should be added
to the vote of contestant in Columbia County.

586 GOODRICH VS. BULLOCK.

PUTNAM COUNTY.

District No. 1. Fifteen witnesses swear to tendering their votes for
contestant and that their ballots were refused. They had also duly ap-
plied for registration and had been refused. They were qualified for
registration and were illegally rejected. Fifteen votes should be added
to the vota of contestant in Putnam County. (Rec., pp. 75-79.)

VOLUSIA COUNTY.

In Volusia County thirty-one qualified voters tendered their ballots
for contestant and were rejected. Some of these voters were duly regis-
tered and then, in violation of the law and without notice, their names
were stricken from the registry. Others had applied for registration
and had been informed by the supervisor of registration that their
names were already on the list. Others, under various pretexts, were
illegally refused registration. The evidence in regard to these votes is
conclusive and uncontradicted, and contestant's vote in Volusia County
should be increased by 31. (Rec., pp. 17-03, 199-207, 219-221.)

ORANGE COUNTY.

In District No. 3, Orange County, 31 ballots cast for contestant were
not counted, on the ground that there was a distinguishing mark upon
them. On the lower right-hand corner of these ballots was a printed
star (*), so small as not to attract attention. Careful voters, on exam-
ining their tickets, would scarcely notice it. The ballots were printed in
a Democratic newspaper office, and the star was undoubtedly placed
there for the purpose of deception and to secure the rejection of these
ballots by the precinct inspectors. This was not such a distinguishing
mark as, under the circumstances, authorized the inspectors to refuse
to count these ballots. (Rec., pp. 251-254.)

In this county, also, nine duly qualified voters tendered their ballots
for contestant and were rejected. (Rec., pp. 25G-266.) The commit-
tee add 40 votes to contestant's vote in Orange County.

MARION COUNTY.

In Fauntville precinct, Marion County, 83 ballots for contestant were
thrown out on the ground that names on the ticket for justice of the
peace and constable were scratched off and other names written on in
red or purple ink. Persons desiring to vote for these officers applied
at the only store in the place for ink and could only get the kiud of
ink used in scratching these tickets, and hence the use of the red or
purple ink. The committee do not think that under the circumstances
these voters should be disfranchised, notwithstanding the terms of
the statute, as the marking was not done for any improper or unlawful
purpose and the use of this ink was, in a manner, compulsory. The
committee count the 83 votes for contestant. (See McCrary on Elec-
tions, sections 400, 401, 404.)

In Marion County large numbers of duly registered voters were un-
lawfully stricken from the registration lists by E. M. Gregg, super-
visor of registration, in reckless disregard of the law, and, as your
committee believe, with the deliberate and criminal purpose of depriv-
ing the Republican voters of the county of their rights.

In Ocala precinct, No. 1, one hundred and tea duly registered voters

GOODRICH VS. BULLOCK. 587

had their names stricken from the registry list after having registered
under the uew law and without any legal authority for such action.
These one hundred and ten voters tendered their ballots for contestant
and were refused the right to vote.

In Fantville precinct, No. 20, twenty-nine voters were in like manner
stricken from the registry.

In Millwood district, No. 2, fifty-one names were stricken from the
registry.

In Keddick precinct ten names were stricken from the registry.

In Flemington precinct, No. 3, forty-two names were stricken from
the registry.

In Cotton Plant district, No. 4, nineteen were stricken from the regis-
try and seven on the registry were rejected at the polls, making twenty-
six.

In Summerville district, No. 8, seven were stricken from the registry.

In Blichville precinct one was stricken from the registry.

In Shady Grove district, No. 7, nineteen were stricken from the reg-
istry and five whose names remained on the registry were rejected at
the polls, making twenty-four.

In Whitesville precinct, No. 8, nine were stricken from the registry.

In Citra precinct, No. 16, twenty-four were stricken from the registry.

In Anthony district, No. 17, nine were stricken from the registry.

In Mclntosh district, No. 2, thirty-three were stricken from the regis-
try and fifteen others were rejected at the polls whose names were on
the registry list.

In Silver Springs precinct eight were stricken from the registry and
three registered voters were rejected.

In Silver Springs Park precinct, No. 24, three were stricken from the
registry and ten registered voters were rejected at the polls.

In Camden district, No. 25, two registered voters were rejected.

In Spar precinct, No. 27, twelve voters were rejected and two were
stricken from the registry.

In Belleview district, precinct No. 26, twenty-one registered voters
were rejected, and eleven were stricken from the registry.

In Lake Weir precinct one was stricken from the registry.

In Stanton precinct three were stricken from the registry.

The above account of persons stricken from the registry includes only
those who were lawful voters, had been registered under the new law,
tendered ballots for contestant at their proper voting places, and were
unlawfully rejected.

These 466 rejected voters in Marion County had all been duly regis-
tered. Some 366 of the number had their names stricken from the reg-
istry rolls just previous to the election. The supervisor of registration
refused to allow the Republican campaign committee to have a copy of
the registration list, or to inspect the list. He also refused to restore
names that he had stricken from the rolls, after having been ordered by
the county commissioners to restore them. He closed his office on the
day before election, and thus prevented a large number of applicants
from obtaining transfer certificates. He refused to submit his registra-
tion books to the county commissioners, as the law required.

These 466 duly qualified voters appeared at their proper polling places
and tendered their votes for contestant, which votes were rejected.
The names of 100 of them were still on the registry lists, and yet the
precinct inspectors rejected the votes, either saying that they could not
find the name on the registry, or setting up some frivolous pretext for
rejection. Voters duly registered were required, in violation of law, to

588 GOODEICH VS. BULLOCK.

present tbeir registration certificates. Others, who presented registra-
tion certificates, were rejected because their names had been stricken
from the registry. The illegal action of Supervisor Gregg can not be
permitted to disfranchise these voters.

Most of the tickets in these various precincts were preserved in Re-
publican side boxes, and the names of the various voters so disfran-
chised, with the pages of the record establishing their right to vote,
and the tender of their ballots, will bo found on pages 15 to 28 of contest-
ant's brief.

These 466 rejected votes, added to the 83 votes not counted in Faunt-
ville, make 549 votes to be added to contestant's vote in Marion County.

NASSAU COUNTY.

District No. 5. The registration and election in this district were
wholly fraudulent. The return shows that there were 141 votes polled
in this precinct, and the evidence conclusively establishes that there
were but 58 qualified voters then residing in the district. The poll-list
of those voting was destroyed, but it sufficiently appears that more than
half of the persons voting were strangers in the precinct, and had no resi-
dence therein. A fraudulent registration was made up for the precinct,
and it is impossible, from the evidence, to ascertain the legal vote cast.
The returns gave 121 to ccntesteeand 13 to contestant. The committee
reject the poll, and deduct 121 from contestee's vote, and 13 from con-
testant's. Eight qualified voters testify that they voted for contestant.
These are the only votes proved, and, under the rule of law that when
the return is impeached only such votes as are proved aliunde can be
counted, we give these 8 votes to contestant, reducing the amount to
be deducted from his vote in this precinct to 5. (Rec.. pp. 577-579, 587.)

District No. 1. In district No. 1 one qualified voter, who tendered
a vote for contestant, had his vote rejected.

District No. 12. In district No. 12 eighteen qualified voters tendered
their votes for contestant, and the votes were rejected.

District No. 3. In district No. 3 an election was held as provided
by law, but no return was made. (Rec., p. 593). Twenty-four duly
qualified voters are proved to have voted for contestant in this dis-
trict, and that number should be credited to him.

District No. 9. The returns from this precinct give contestee 221,
and contestant 38 votes. The election was held three-quarters of a
mile from the established polling place without notice to the voters. It
does not appear in evidence that there was general knowledge of the
change. It does appear, however, that the registering officer of the pre-
cinct was taken sick and that during his illness and in his absence his
deputy refused to register "any Republican voters. On the last day of
registration the registrar returned, but, after a few minutes, closed his
registration office, went away, and staid away all day, thereby pre-
venting a large number from registering.

It further appears that this same registering officer placed Democrats
upon the registration who were not qualified. While the holding of the
election at a different place from that provided by law would not vitiate
the poll, provided due notice was given of the change, so that knowl-
edge of the fact would come to both political parties, yet, in this case,
the change without notice, added to the conclusive evidence of the
fraudulent acts of the registrar and his deputy in closing the registra-
tion office against Republican voters, and in illegally registering un-
qualified Democrats, so vitiate the integrity of the poll as to destroy

GOODRICH VS. BULLOCK. 589

the value of the return and make it impossible to say that the election
at this poll was a fair one. The committee, accordingly, reject the poll
and deduct from contestee and contestant the 221 and 38 votes returned
for them, respectively.

District No. 13. In District No. 13, Briceville, 79 votes are returned,
all for contestee. Nineteen of this number are proved to have been
non-residents and to have been fraudulently registered. (Rec., pp. 586,
587, 596). The least that we can do with this precinct is to deduct from
the vote of contestee the nineteen fraudulent votes proved to have been
cast for him.

Summing up the above-noted changes in Nassau County, the com-
mittee find 43 votes to be added to and 43 votes to be deducted from
contestant's vote, and so make no change in it. Three hundred and
sixty-one votes should be deducted from contestee.

ALACHUA COUNTY.

Aredondo District, No. 12. There were returned from this poll for
contestee 222 votes and for contestant 59. One hundred and sixty-
nine voters testify to having voted for contestant. Twenty-four oth-
ers testified that they tendered votes for contestant and that their votes
were rejected. Thirty-one others are proved to have tendered votes for
contestant and their votes were rejected. All these voters were either
registered or had applied for registration and been fraudulently refused.
N. A. Collison, United States supervisor, was not permitted to act, un-
der the pretense that he lived in a quarantined town, although it ap-
pears from the evidence that there was free intercourse between the
two towns. A person designated by him and not subject to the same
objection was also refused permission to act in the supervisor's place,
though it had been agreed that he might act. (Kec., pp. 319, 320.)

The inspectors did not commence canvassing the votes until over an
hour after closing the polls, and pistol firing was indulged in, evidently
with the intention of keeping witnesses away from the count. Every
conceivable obstruction was interposed in this district to prevent Re-
publicans from registering. The names of a large number of Repub-
lican voters were arbitrarily stricken from the registration books, and
the names of those so stricken were not published, as required by law.
The evidence conclusively shows that the return from the district is
fraudulent and false. The 222 votes returned for contestee should be
deducted from his vote, as there is no proof of contestee's vote aside
from the vitiated returns; and contestant should be credited with 224
votes actually cast or tendered for him, or 165 more than were given
him in the returns. The names of the voters in district No. 12 will be
found on pages 51 to 56 of contestant's brief.

Hayne Station, District No. 17. Sixty-four votes duly tendered for
contestant were rejected and should be counted for him. (Rec., pp.
331-370.)

District No. 7. Seventy-two legally qualified voters tendered their
votes for contestant and were refused. Nearly all of these voters were
registered and the remainder had made due effort to be registered.

District No. 20. Forty nine duly qualified electors tendered their
votes for contestant and were refused.

District No. 10. Thirty-three duly qualified voters tendered their
votes for contestant and were refused.

District No. 6. Fifty duly qualified electors tendered their votes
for contestant and were refused.

590 GOODRICH VS. BULLOCK.

District No. 2. Forty-six legally qualified electors tendered ballots
for contestant and were rejected.

District No. 16. Six legal voters tendered ballots for contestant and
were refused.

District No. 11. Ninety legally qualified voters tendered their ballots
for contestant and were rejected.

District No. 3. Ten legally qualified electors tendered their ballots
for contestant and were refused.

District No. 19. Seventeen qualified voters tendered ballots for con-
testant and were rejected.

District No. 1, Waldo. Twenty-three duly qualified voters tendering
their votes for contestant were rejected.

District No. 15. Fifty qualified electors tendering their votes for con-
testant were rejected.

It appears from the evidence that nearly all these voters had been
registered under the old registry; that they applied for registration
under the new law and were either told that they were already regis-
tered or were denied the opportunity of getting transfers; that those
who failed to get on the registry or to get proper transfers appeared
at the time and place advertised for the meeting of the county commis-
sioners, whose duty it is, under the law, to correct all errors of regis-
tration, and that only one of the county commissioners appeared, and
he, not being a quorum, refused to act. In this county, therefore, there
was an entire failure on the part of the county officers to discharge their
duty with reference to registration.

They had no meeting, as the law required, to perfect the registration
lists and they did not publish the names stricken from the registry.
The supervisor of registration neglected to perform the duties of his
office, so far as Republican voters were concerned. The registration
lists of the county were, therefore, of little value, not because of the
neglect of the Republican voters, who were thoroughly organized and
made every effort to get their names properly on the registration lists,
but because of the negligent and unlawful acts of the officers charged
with the duty of registration. Under these circumstances the com-
mittee hold that the proof of the qualification of the before-mentioned
voters who sought to cast their ballots for contestant is satisfactory,
and the votes should be counted as if cast.

The committee accordingly add to contestant's vote in Alachua
County 677 votes, and deduct from contestee's vote 222 votes.

HAMILTON COUNTY.

District No. 3. Thirteen votes, duly tendered for contestant by legal
voters, were rejected on the ground that the voters were charged with
having changed their residences from one place to another in the same
voting precinct. This, if true, would not interfere with their right to
vote.

District No. 2. One hundred and four votes cast for contestant and
2 for contestee were not counted on the ground that there was a print-
er's dash under the names of some of the candidates on the tickets. We
do not think that this was such a distinguishing mark as authorized the
rejection of these ballots. One hundred and four votes should be added
to contestant's vote and two to contestee's.

In this district there were also 18 votes tendered for contestant re-
fused which should be counted.

GOODRICH VS. BULLOCK. 591

District No. 1. Sixteen votes are claimed in district No. 1, but tbe
evidence in regard to them is not quite conclusive.

District No. 7. Forty-eight votes for contestant were not counted

because of a printer's dash ( ) separating each name on the ticket.

These votes should be counted. (See McCrary on Elections, 2d ed.,
104.)

District No. 5. Eighteen duly qualified voters tendered votes for
contestant and were rejected. They should be counted.

The committee accordingly add 199 votes to contestant's returned
vote in Hamilton County.

DUVAL COUNTY.

District No. 2. Thirty-two persons tendered votes for contestant, and
were rejected. It does not appear from the evidence for what reason
they were rejected, or that they had made efforts to be registered, and
therefore we do not count them.

District No. 8. Twelve of the 14 claimed legal voters were duly
qualified, tendered their votes for contestant and were rejected, and 13
ballots for contestant were illegally rejected on the claim that they had
some specks on them. One Democratic ticket was rejected in the same
way. One witness testified that he could discover nothing on them, an-
other that there appeared to be small ink spots. These tickets ought
not to have been rejected.

District Na. 21. Eight out of the 14 claimed legal voters who ten-
dered their votes for contestant should be counted, and 9 votes for con-
testant not counted under pretense that they were marked should be
counted for him. The rejection of these 9 ballots was on the ground
that there was a printer's dash on the ticket in a place where no person
was named for a particular office.

District No. 23. One qualified elector was illegally denied the right
to vote for contestant.

District No. 17. Twenty-nine qualified voters tendered their votes
for contestant and were rejected. They should be counted.

District No. 18. Three legally qualified voters who tendered their
votes for contestant were rejected.

District No. 20. Of the 57 who tendered their votes for contestant
31) were duly registered and qualified voters and should be 3ounted.

District No. 6. Three qualified voters were illegally denied the right
to vote for contestant, and 45 votes cast for contestant were not counted
because the name of a candidate for justice of the peace was written
on the ticket with a red lead-pencil. We think these votes should be
counted.

District No. 12. Twelve votes cast for contestant were illegally not
counted, on the ground that they were, marked. There were pencil-
marks on the tickets made by the judges pushing them into the box with
a pencil.

District No. 15. Seventeen qualified voters tendered their votes for
contestant and were rejected, and 9 votes cast for contestant were ille-
gally not counted.

District No. 7. Three qualified voters tendered ballots for contestant,
and their ballots were not received.

District 16, or icard No. 2. Seventy-five duly qualified and regis
tered voters tendered their votes for contestant, and were refused; they
should be counted. The others claimed in this district the committee
do not allow.

592 GOODRICH VS. BULLOCK.

District No. 19. Twenty-eight legally qualified electors tendered
their votes for contestant, and were rejected.

District No. 22. Sixty-two qualified voters tendered ballots for con-
testant, and were rejected.

District No. 13. Eighteen qualified voters tendered their votes for
contestant, and were rejected.

In this county the supervisor of registration resorted to dilatory
tactics to prevent Republicans from registering, and thereby prevented
a large number of qualified voters from being registered. (Record, pp.
116-18.)

The committee add 385 votes to the vote returned for contestant in
Duval County.

MADISON COUNTY.

Cherry Lake district, No. 7. At this district the regularly appointed
Democratic election inspectors appeared at the polling place, but hav-
ing in some way received notice of an intended raid on the ballot box,
declined to hold an election. Thereupon the voters present proceeded
to elect a board of inspectors. These inspectors refused to hold the
election at the place, learing danger, and so adjourned the election to a
point three-quarters of a mile distant. The Democrats refused to par-
ticipate in this election although they had due notice of it. One hun-
dred and thirty-one votes were cast for contestant, canvassed, and duly
returned to the supervisor of elections for the county, but the canvass-
ing board of the county refused to consider the return. It was the fault,
first, of the Democratic election inspectors, and second, of the Demo-
cratic voters themselves, that the few Democratic votes there were in
the precinct were not cast. The committee count for contestant the
131 votes cast for him in this precinct.

Madison district, No. 1. At this district an election was duly held,
as provided by law, and 615 votes were cast. After the close of the
polls, the Democratic inspectors delayed for some two hours the counting
of the vote, and then proceeded very slowly, occupying two hours
more in counting some seventy votes. When they had proceeded thus
far, an armed body of white Democrats appeared at the polls, and
forcibly carried off the ballot box. Consequently, no return was made
of this vote.

There was a side election held, by Democrats alone, at the same poll,
to inform the governor whom the Democratic voters desired for county
commissioners. This box was undisturbed, and return was duly made
of the result to the Democratic chairman of the county. Two hundred
and six votes were cast at the side box. Presumably all. or nearly all,
of the Democrats voting in the precinct voted at this side box. There
is evidence that some four did not. Inasmuch as the party friends of
contestee destroyed the evidence of the result of the election at this
precinct, and because or' the disturbed condition in the county at the
time this contest was pending, making it dangerous to attempt to take
testimony in the county, the committee take the result at the side box
and the other evidence in regard to the vote as the best evidence attain-
able as to the result at this precinct. Accordingly, they count 210 votes
for contestee, and 405 votes for contestant.

Hickstown district. Here an election was regularly held, and, after
the polls were closed, the Democratic inspectors refused to canvass the
votes, fearing, or pretending to fear, violence. The ballot-box, and the
tickets, however, were preserved. At this district contestant received
100 votes, and contestee 30 votes, and the committee count the votes
as cast.

GOODEICH VS. BULLOCK. 593

Greenville district, No. 5. The election was regularly held in this
district; 215 votes were cast, of which contestant received 130, and
contestee 85. The box and returns were delivered by the Democratic
inspectors to J. A. Redding, a Democrat, who assisted, as clerk, at the
counting of the vote, to be by him delivered to the county supervisor
of election. He took it to his store and late at night, while he was
engaged in putting up his books, a body of armed white meu came to
his store and by deception gained access to the store room and forcibly
carried away the box so that no return was made. The committee
couHt for contestant the 130 votes cast for him and for contestee the 85
votes cast for him at this precinct. They also count 19 additional votes
for contestant, tendered and illegally rejected at this poll.

Hamburg district, No. 6. At this district an election was held in an
orderly manner, but just before the closing of the polls an armed body
of mounted men, variously estimated at from forty-four to ninety, rode
down upon the polls and seized and carried away the ballot-box. They
were white men and friends of coutestee. The evidence shows that
259 Republicans voted there that day. There is no evidence as to what
the Democratic vote was. The committee accordingly count 259 for
contestant.

Elaville district, No. 2. The returns from this district gave contestant
only 29 votes. J. H. Stripling, United States supervisor, was refused
admission to the polling place by the precinct inspectors, which refusal
discredits the return. Being refused permission to act as United States
supervisor, he took his place outside of the polling place, distributed
Republican tickets, and kept account of the number voted. From his
evidence it appears that 97 instead of 29 Republican votes were cast for
contestant. No attempt is made to refute or discredit this testimony,
and the unlawful action of the inspectors of election leaves it as the only
valid evidence of the vote. Counting the vote, however, as claimed in
contestant's brief, which is the method most liberal to contestee, the
committee add 68 to contestant's vote and deduct a like number from
the vote of contestee.

Macedonia district. In Macedonia district, No. 11, twenty-nine votes
only are returned for contestant. The proof shows that he received at
least 65 votes at this poll. The committee add 36 to contestant's vote
and deduct a like number from that of coutestee, following the liberal
methodx)f counting conceded in contestant's brief.

The committee add 1,147 votes to contestant's vote in Madison
County and 325 to contestee's, and deduct from contestee's vote 104,
making a net change of 926 in contestant's favor.

To sum up the result in all the counties :

Net changes in favor of contestant in

Columbia County 127

Putnam County 15

Volusia County 31

Orange County 40

Marion County 549

Nassau County 361

Alachua County 899

Hamilton County 199

Duval County 385

Madison County 926

Total 3,532

Bullock's returned majority 3,195

Majority for Goodrich : 337

H. Mis, 137 38

594 GOODRICH VS. BULLOCK.

The committee recommend the passage of the following resolutions :
Resolved, That Robert Bullock was not elected a Representative in the

Fifty-first Congress from the second Congressional district of Florida,

and is not entitled to retain a seat therein.
Resolved, That Fred. S. Goodrich was elected a Representative in the

Fifty-first Congress from the second Congressional district of Florida,

and is entitled to the seat.

VIEWS OF THE MINORITY.

(1) Eegistration law. Power of legislature to enact.

** The right of suffrage is regulated by the States, and while the legis-
lature of a State can not add to, abridge, or alter the constitutional
qualifications of voters, it may and should prescribe proper and neces-
sary rules for the orderly exercise of the right resulting from these
qualifications. It can not be denied that the power to enact a registra-
tion law is within the power to regulate the exercise of the elective
franchise and preserve the purity of the ballot."

(2) Return. Evidence necessary to overthrow.

" Before the official return can be properly rejected, there must be
satisfactory proof that the proceedings in the conduct of the election
or in the return of the vote were so tainted with fraud that the truth
can not be correctly ascertained from the returns. In other words, the
returns must be accepted as true until they are clearly shown to be
false."

(3) Registration. When new certificate necessary under Florida law.
Eegistration is not necessary when a voter has changed his residence

from one place to another in the same voting precinct. " While section
8 of the act of June 7, 1887, may possibly admit of a different construc-
tion, we are inclined to the opinion that a mere change of residence from
one house to another in the same voting precinct should not deprive
an elector of his right to vote."

(4) Ballot. Distinguishing marie.

A printer's dash separating the names of candidates on a ticket is
not a distinguishing mark which would justify the rejection of the
ballots under the Florida statute.

(5) No registration.

The opinion of the committee as to the votes of the county where
there was no registration is concurred in.

(6) Votes not registered. Presumed to be properly rejected.

Certain votes "were rejected by the inspectors because the names of
the persons offering them were not found on the registration list. In
the absence of proof to the contrary there is a legitimate presumption
that they were properly rejected. It has been repeatedly decided by

595

596 GOODRICH VS. BULLOCK.

the House of Bepresentatives that the acts of proper officers, acting
within tbe sphere of their duties, must be presumed to be correct, un-
less shown to be otherwise."

(7) Ballot. Distinguishing mark.

The ballots partly written in red ink or red pencil were properly re-
jected, their rejection being directly required by the law of Florida.

(8) Votes rejected. Most of them properly so.

"We submit that a careful examination of the testimony will show
that from want of sufficient intelligence to understand the registration
laws a large majority of the persons whose votes were rejected for fail-
ure to register properly had not complied with the requirements of the
law in obtaining transfers, in having themselves reregistered after a
change of residence, and in giving attention to other matters absolutely
necessary to render them qualified electors in the State of Florida.

VIEWS OF THE MINORITY.

Mr. MAISH presented the following as the views of the minority:

The undersigned, dissenting from the conclusions reached by the
majority of the Committee on Elections in the above-cited case, submit
herewith the reasons for their dissent, as follows :

The Second Congressional district of Florida is composed of the
following counties, to wit: Madison, Hamilton, Suwannee, Columbia,
Baker, Nassau, Duval, Clay, Bradford, Alachua, Putnam, Marion,
Sumter, Lake, Orange, Osceola, Bade, Brevard, Volusia, and St.
John's. At the election for Representative in Congress, which was
held on the 6th of November, 1888, Eobert Bullock was the Democratic
candidate and Frederick S. Goodrich was the Republican candidate.
The result of the election, as certified by the secretary of state, was
as follows :

Counties.

Eobert

Bullock.

Fred. S.
Goodrich.

Counties.

Eobert
Bullock.

Fred.S.
Goodrich.

Votes.
2 067

Yoteg.
1,362

Votes.
1,938

Votes,
1,780

Baker .

378

152

975

901

1,007

361

Orange

1,849

1,552

Brevard

472

232

Osceola

434

224

Clay

565

480

Putnam

1,170

1,340

Columbia ..................

1,039

977

St. John's ........... .

1,049

1,624

Bade

Sumter

784

308

Duval

1,406

2,688

Sn wannee

1,008

784

Hamilton.

741

353

Volusia

982

1,175

1 330

900

M(>4liln... . , . . ....

723

179

20, 015

16, 817

It thus appears that according to the official result of the election as
ascertained and declared, according to law, the contestee received a
majority of 3,195 votes. Before proceeding to consider the testimony
as disclosed by the record, it may not be inappropriate to state that,
according to the census of 1880, the population of the counties compos-
ing this district consisted of 70,947 whites and G5,040 colored, thus
showing a majority of 5,907 white people. In addition we call atten-
tion to the fact that at the Congressional election held in this district
in 1884 the Democratic candidate received 17,248 votes, and the Re-
publican candidate received 15,857 votes, showing a majority of 1,391
for the Democratic candidate. At the Congressional election held in
1886 the Democratic candidate in this district received 18,892 votes,
and the Republican candidate received 15,763 votes, showing a majority
of 3,129 votes in favor of the Democratic candidate. There was no
contest made either in 1884 or 1886, and the result of the election in
each year was accepted as fair by all concerned.

597

598 GOODRICH VS. BULLOCK.

As the principal ground of contest in this case is the alleged refusal
of the inspectors to receive votes tendered, because the persons tender-
ing them had not been duly registered, we deem it proper to call atten-
tion to certain provisions of the election laws of Florida. The right of
suffrage is regulated by the States, and while the legislature of a State
can not add to, abridge, or alter the constitutional qualifications of voters,
it may and should prescribe proper and necessary rules for the orderly
exercise of the right resulting from these qualifications. It can not be
denied that the power to enact a registration law is within the power
to regulate the exercise of the elective franchise and preserve the purity
of the ballot. The law of Florida in force on the 6th day of November,
1888, contained, among others, the following provisions:

First. No persons can vote unless they are duly registered according to law.

Second. The elector is required, under oath, to give such description of himself as
will be sufficient to identify his person with the act of registration.

Third. The governor appoints a supervisor of registration in each county, who ap-
points a registration officer for each election district, whose duty it is to attend, to the
registration of electors in such district.

Fourth. It is the duty of the board of county commissioners to divide the county
into election districts, which said districts may be changed by th < board at anytime
at least three months before any general election, desiguating each district by a num-
ber, and at the most suitable point to establish a voting place or a precinct.

Filth. Immediately upon the expiration of the time for registration at the several
precincts, each district registration officer shall subscribe in his book an oath that he
has faithfully executed his duties as the registration officer at such precinct, and
shall deliver his book and all blanks left in his possession to the supervisor of regis-
tration, and thereupon the supervisor shall proceed to make up the registration lists
for the several precincts.

Sixth. Each elector upon being registered shall be furnished by the registration
officer with a certificate, which shall be numbered by consecutive numbers for each
district, and shall contain a statement of his name, age, color, occupation, place of
residence, and date of registration as entered in the registration book, which certifi-
cate shall be signed by the registration officers. No person shall be allowed to vote
in any other election district than the one for which he is registered nor shall any
person whose name does not appear upon the registration list be allowed to vote,
unless he produces and exhibits such certificate to the managers of election.

Seventh. When the name of any elector shall have been wrongfully erased the
same may be restored by order of the county commissioners if the supervisor on ap-
plication' and proper proofs fails so to do.

Eighth. In case of the removal of an elector from one residence to another in the
same district, or from one district to another district in the same county, such elector
shall notify the supervisor of registration and shall surrender his certificate of regis-
tration to such officer, who shall enter the fact upon the registration book and shall
give such elector a new certificate in accordance with such change of residence.

Ninth. No elector removing from one residence district or ward to another shall be
allowed to register or vote without a transfer of registration, as above provided.

Tenth. It is made the duty of the county commissioners to examine and revise the
list of registered electors, erasing therefrom the names of such as have died or re-
moved from the county, or who are otherwise disqualified to vote, and restoring such
names as have been improperly taken off by the supervisor of registration.

Eleventh. At each election the supervisor of registration shall furnish the inspec-
tors of election at each election district with a copy of the registration book for such
district, the names in which have been arranged alphabetically and certified by him
to be correct, for the care and custody of which the inspectors receiving the same
shall be responsible, and which they shall return to the supervisor of registration
within three days after the close of the election.

We submit that a careful examination of the testimony will show
that from want of sufficient intelligence to understand the registration
laws a large majority of the persons whose votes were rejected for fail-
ure to register properly had not complied with the requirements of the
law in obtaining transfers, in having themselves reregistered after a
change of residence, and in giving attention to other matters absolutely
necessary to render them qualified electors in the State of Florida.

GOODRICH VS. BULLOCK. 599

ALACHUA COUNTY.

It is claimed by the majority of the committee that in Arredonda dis-
trict No. 12 in this county the official returns should be rejected as
fraudulent; that the 222 votes returned for contestee should be deducted
from his poll, and that the contestant should be credited with 224 votes
as actually cast or tendered for him, making 165 more than he received
by the official returns. Before the official return from this election pre-
cinct can be properly rejected, there muet be satisfactory proof that
the proceedings in the conduct of the election or in the return of the
vote were so tainted with fraud that the truth can not be correctly as-
certained from the returns. Inother words, the returns must be accepted
as true until they are clearly shown to be false. As specimens of the
testimony introduced by contestant to impeach the returns from this
precinct, we extract the following:

Joseph Williams testifies, p. 271:

Q. Who was the Republican or Democratic candidate for Congress iu this county?
A. I can not remember, as there was BO many of them.

Q. Is it not a fact that you never inquired or asked on the day you got your ticket
and did not know when you went to vote whether there was a candidate for Congress
that year or not? A. No, sir; I did not exactly know.

y. Do you know what Congress is? Is Congress a man or a woman? A. It is a
man, I suppose.

Q. Is it an old man or a young man ; black or white ? A. I could not tell.

Q. What was the name you remembered on your ticket? A I do not remember
any name on my ticket but Goodrich ; I know them, but do not remember now. I
do not know whether he was running for governor; they told me so.

Q. You remember distinctly that Goodrich's name was on your ticket for governor;
because you had it read to you was the reason why you remember it so distinctly;
because you wanted to vote for him for Congress, so as to have the State have a Re-
publican governor once more ? A. Yes, sir.

Monroe Welsh testifies, p. 272:

Q. Who was running for governor on your ticket? A. F. S. Goodrich.
Q. Was he the man you wanted for Governor ? A. Yes, sir.

Fortune Sturks testifies, p. 287 :

Q. Was Mr. Barnes on your ticket for Congress, and did you meet anybody this
morning and tell them so? A. Yes, sir.

Q. What Mr. Barnes was it; the Mr. Barnes that lives at Gainesville and who used
to be sheriff? A. I dou't know ; I voted the Republican ticket.

Q. The parties who you spoke to on the road this morning, did yon not lell them that
you did not know what ticket you voted, only that you know you voted for Mr. Barnes
for Congress, and that they told you so, and that is all you know about the ticket ?
A. Yes, sir ; that is all I know about it, and my privilege was to vote, and that is all
I know about it.

William Starks testifies, p. 292 :

Q. Who did you vote for for governor? A. Mr. Goodrich.

Q. Why did you want to vote for Mr. Goodrich for governor; was it so yon could
have a Republican governor once more in this State, and have the control of the
courts and the counties ; is that so? A. Yes, sir.

Q. Are you positive he is the man you wanted for governor ? A. According to the
nominees I am going by.

Bernett Kelly testifies, p. 30'.:

Q. Did you vote at the last election at Arredonda? A. Yes, sir.
Q. Who did you vote for Congress, the Republican or Democratic candidate?
A. I don't know, sir.

Perry Luker testifies, p. 302 :

Q. Can you read or write? A. A little.

Q. Did you read the ticket you voted at the last election ? A. Yes. sir.

600 GOODEICH VS. BULLOCK.

Q. Are you a Democrat or a Republican ? A. From the ticket I voted I must be a
tie of both.

Q. Was Bullock a candidate for Presidential elector on the ticket you voted T A.
It was stated that Bnllock was a candidate for Congress on the ticket I voted.

As to the testimony of the fifty-four witnesses for contestant found in
the record from page 307 to page 320, inclusive, we submit that it can
not be considered, for the reason that it was taken after the expiration
of the forty days allowed by law. If, however, said testimony should
be considered at all, it shows that some of the witnesses did not vote
because their names were not found on the registration list; some of
them are not able to state for whom they voted, and others testify that
they voted for the contestee. To show the insufficiency of the testi-
mony found in the record, from page 339 to page 359, inclusive, we pre-
sent the following :

Jessie Owens testifies on cross-examination that if from any cause his
name was erased from the Arredouda precinct registration list, he did
not apply to the supervisor of registration of Alachua County to have
his name restored before ke offered to vote.

Charles Yorick testifies on cross-examination, p. 343, that he could
not read the name of the candidate for Congress on his ballot, and does
not in reality know whose name was on his ballot.

James Bullock testifies on cross-examination, p. 344, that when he
offered his ballot to the inspectors they gave as a reason for not re-
ceiving it that they could not find his name on the list, and that he did
not apply to the supervisor of registration of Alachua County to have
his name restored.

Henry Adams testifies on cross-examination, p. 345, that his name
was not on the registration list at the Arredonda precinct ; that it was
on the list at the Jouesville precinct, and that he did not apply to Mr.
Saddler, the supervisor of registration, to have his name transferred
on account ot the yellow fever.

Isaac Thompson testifies on cross-examination, p. 346, that he did
not notify the supervisor of registration of his change of residence, and
did not ask him to note the same on the registration books and give
him a certificate.

Lewis McCray testifies on cross-examination, p. 347, that he does not
know who the candidates for Congress were at the last general election,
and does not know for whom he voted.

David Simmons testifies on cross-examination, p. 349, that he really
does not know whose name was on his ticket for Congress.

Jordan Perry testifies on cross examination, p. 350, that he does not
know how many Congressional candidates there were, and does not
know whose names were on his ticket for Congress at the last election.

Cubuer Johnson testifies on cross-examination, p. 351, that he does
not know whether he voted the Congressional ticket and does not know
whose name was on his ticket.

Bill Neal testifies on his direct examination, p. 352, that he did not
vote at the last general election, but offered to vote at Arredouda. It
appears from the registration list, p. 323, that his name had been erased.

Joe Bradley testifies on his direct examination, p. 353, that he does
not know what State he lives in.

Shedrick Bell testifies on cross-examination, p. 364, that he does not
know what State officers or what candidate for Congress he voted for.

The testimony of the witnesses to be found in the record from page
381 to page 398, inclusive, is not sufficient to justify the rejection of the
official returns. The contestant cUims that 0. H. DeBose distributed

GOODRICH VS. BULLOCK. (>01

tickets to thirty-one persons at this precinct, who offered to vote for the
contestant, and whose votes were refused, but it appears from an ex-
amination of his testimony (pp. 381, 382, aud 883) that he does not know
how many persons to whom he distributed tickets actually voted or how
they voted.

Moses Duncan testifies on cross-examination, p. 386, that he does
not know whether the name of Robert Bullock was on the ticket for
Congress which he voted or not.

Ned Baskins testifies on cross-examination, p. 387, that he does not
know whether the name of Eobert Bullock for Congress was on his
ticket or not, and that he does not know for whom he voted.

Nelson Johnson testifies on cross-examination, p. 388, that the name
of the man for whom he voted is spelled " G-w-a-r-r-e-t."

Richard Clark, sr., testifies on cross-examination, p. 380, that L. A.
Barnes was his choice for Congress, and that he voted for him.

Simon Phillips, p. 391, testifies on cross-examination, that he was
told L. A. Barnes was on the ticket for Congress, and that he desired
to vote that ticket.

John Burnett testifies on cross-examination that he voted for Ship-
man for Congress.

Ben Clifton testifies on cross-examination that Shipman was running
for Congress and that he voted for him.

Joseph Davis testifies on cross examination, p. 394, that he does not
know who was the Republican or Democratic candidate for Congress,
and does not know for whom he voted.

Solomon Harris testifies on cross-examination, p. 394, that he voted
for Mr. Shipman for Congress.

Murray Bullard testifies on cross-examination, p. 397, that he voted
for L. A. Barnes for Congress, and that he was his choice.

Aleck Brown testifies on cross-examination, p. 398, that he believes
he voted for Mr. Shipman as a Republican candidate for Congress.

The testimony of the witnesses to be found in the record from page
426 to 450, inclusive, is equally unsatisfactory.

George Hall testifies on cross-examination, p. 427, that he voted for
V. J. Shipman as a Republican candidate for Congress.

Eehard Doley testifies on cross-examination, p. 429, that he is unable
to state positively lor whom he voted.

Peter Davis testifies on cross-examination, p. 429, that he voted for
Mr. Goodrich, but does not know for what office.

Lewis Spell testifies on cross-examination, p. 429, that he would not
know the names of the persons on his ticket, or for what offices they
were candidates, if he should hear them called.

Abram Young testifies on cross-examination, p. 430, that he voted for
Mr. Goodrich for governor.

Charles Neal testifies on cross-examination, p, 433, that he voted for
Goodrich for governor.

Wilson Douglass testifies on cross-examination, p. 437, that he does
not know how many candidates there were for Congress in the Second
Florida district in the last election or for whom he voted.

Dick Mavins testifies on cross-examination, p. 438, that he does not
remember a single name on the ticket, and would not remember them
even though they were mentioned to him.

Solomon Joshua, sr., testifies on cross-examination, p. 438, that he
voted for Mr. Goodrich and Mr. Shipman as Presidential electors.

Isam Cunningham testifies on cross-examination, p. 439, that he voted
for Mr. Shipman for Congress.

602 GOODRICH VS. BULLOCK.

Robbin Clifton testifies on cross-examination, p. 439, that Mr. Good-
rich was on the ticket for Presidential elector and that he voted for
him as such.

George Bessant testifies on cross-examination, p. 442, that iu truth
and in fact he does not know whose name was on his ballot for Con-
gressional and national positions.

Vanus White testifies on cross-examination, p. 442, that he does not
know and will not swear for whom he voted.

James Certain testifies on cross-examination, p. 443, to the same ef-
fect.

July Belton testifies on cross-examination, page 444, that as a mat-
ter of fact he can not swear anything about the ticket he voted or what
names were on it, or whether there was anything on it about Congress
or not.

Benjamin Drayton testifies on cross-examination, p. 445, that as a
matter of fact he could not swear who were on his ticket when he
voted it and what offices they were candidates for.

Charley Drayton testifies on cross-examination, p. 446, to the same
effect.

K. M. Witt testifies on his direct examination, p. 440, that he was
not a registered voter of Arredouda district No. 12; that he did not
offer to register before the registration officer during the month of
September, 1888, when the books were opened for registration; that he
went to the supervisor of registration to secure a transfer irom Dis-
trict No. 7 to District No. 12, but he was unable to fix the date; that
the supervisor told him that he would have to go to the commissioners,
who were to meet at Doig's Mill, and that when he went to Doig's
Mill there was only one of the commissioners present, and he did not
succeed in getting a transfer.

William Reuben testifies on cross-examination, p. 448, that he does
not know anything about the ticket he voted so as to be able to swear
what it was.

James Porter testifies on cross-examination, p. 448, that, with the
exception of Martin's name on his ticket, he can not tell what it was or
anything about it.

William Woods testifies on cross-examination, p. 449, to the same
effect.

The testimony of the witnesses found iu the record from page 450 to
454, inclusive, can not be considered for the reason tbat it was taken
after the expiration of the forty days allowed by law and wlien tbe.e
was no one present to cross examine th" witnesses on bebalf of thecon-
testee. As to the construction of contestant tbat obstructions were in-
terposed to prevent Republicans from registering at this precinct, we
submit that ihe testimony relied upon does not support the churge.

Mr. E. P. Axtell says on cross-examit ation, p. 300, that he is not
able to give the name of a single person who went in his individual
capacity before the supervisor and was refused registration after com-
plying with the requirements of the law.

Mr. James M earns testifies on cross-examination, p. 372, that he does
not know anything about the evidence offered by the parties which en-
titled tbem to registration or transfer.

It appears from the testimony of contestant's own witnesses that if
at any time the registration books were not open at the supervisor's
office on the day appointed by law, or of the board of county commis-
sioners failed to meet to hear applications for the corrections of the
books, according to the notice given, such failure was due entirely to

GOODRICH VS. BULLOCK. 603

the prevalence of tbe yellow fever in that community. We submit that
the testimony relied upon is altogether too vague and indefinite to jus-
tify the rejection of the official return from this precinct.

It is claimed by the majority that 04 votes duly tendered for contest-
ant were rejected at Hague Station, No. 17, and that they should be
counted for him. In our opinion the testimony relied upon is not suf-
ficient to sustain this claim.

As to the claim of the majority that 72 legally qualified voters ten-
dered their votes for contestant in district No. 7, and were improperly
rejected, we think the testimony relied upon shows that the persons
referred to had failed to comply with the requirements of tbe law in
regard to registration. In answer to the claim that Republican voters
were excluded from the polls at this precinct by force, we invite atten-
tion to the following testimony:

M. J. MADDOX, being duly sworn as a witness for contestee, deposes as follows :

Question. What is your name, age, and profession ? Answer. M. J. Maddox; age,
32; profession, teacher.

Q. Are yon a white or colored person ? A. Colored man.

Q. What election precinct in Alachua County do you live in ? A. Precinct No. 7.

Q. Did you go to the polls at the last general election in Precinct No. 7 ? A. I did.

Q. While there did you see any armed paities aronnd or about the polls or any
other evidence of intimidation of voters? A. Certainly I saw nothing of the kind;
I saw a gun on the ground; it did not occur to me at the time that it was there for
the purpose of intimidation ; it was in the possession of a colored man in a buggy;
I talked \\ilh him about it.

Q. Are you a Republican or a Democrat in politics? A. I am a Republican.

Q. How long hnve you resided in the Gainesville precinct, Alachua County ? A.
More than lour years.

Q. At the regular Republican county convention called for the nomination of Re-
publican candidates for the different county offices, were there any colored meii nomi-
nated by that convention for any office; and, if yea, what were their names and for
what offices were they nominated? A. There were; M. M. Lewey for county judge
and I. C. Sebastion for county assessor.

Q. W T ere they regarded as good citizens, well qualified to discharge the duties of
the offices for which they were nominated? A. They were both regarded as good
citizens, and one of them, Mr. Lewey, was pre-eminently qualified for the position,
but ihe other, Mr. Sebastion, was by some regarded as not qualified.

Q. Was there any charge or complaint that the nomination of Lewey and Sebastion
had been procured by any unfair or improper methods ? A. None whatever, to my
knowledge.

Q. Were you present and had full opportunity to observe the proceedings of that
convention ? A. I was present, and did have full opportunity to observe the proceed-
ings.

ED. FRAZIER, being sworn, says :

Question. What is your name, age, place of residence, and occupation? A. Edward
Frazier ; age, 28; I reside in Gainesville; am a common laborer.

Q. Are you a win: e or colored man ? A. I am a colored man.

Q. In what election precinct in Alachua County do you live? A. Gainesville pre-
cinct.

Q. Were you present throughout the day of the election held in Precinct No. 7, on
NovemberG, 1888? A. I was.

Q. State whether or not it was quiet and peaceable. A. Yes ; it was.

Q. Did you take an active part on election day among the voters of your color?
A. Yes, sir.

Q. Did you distribute any tickets on election day; if so, about how many? A. I
distributed about 58 to colored voters.

Q. Do you know how many of these tickets were voted by colored men on that
day ? A. Yes; 54 were voted.

Q. Did not a great many more colored people vote the Democratic ticket at the
lasl election than at former political elections? A. Yes, sir.

Q. Do yon know ot any special reasons why so many colored voters voted th<- Dem-
ocratic ticket at the last election? A. Yes, sir; the reason was that there was a
split among the colored people, and they declared before they would vote the split
ticket that they would vote a straight Democratic ticket.

Q. Were these 54 tickets that you say were voted by colored voters and the ticket

604 GOODRICH VS. BULLOCK.

you voted yourself straight Democratic tickets or not ? A. They -were straight Dem-
ocratic tickets.

B. F. DAWKINS, being duly sworn for contestee, deposes and says :

Question. State name, age, occupation, and place of residence. Answer. B. F.
Dawkins ; 39 years old ; policeman ; Gainesville, Fla.

Q. Were you at the election held in Gainesville precinct in November last ; and,
if so, in what capacity did you act ? A. I was ; a quarantine officer at the time, and
ordered at the polls by the chief quarantine officer of the county.

Q. State what your instructions were and what you did on that day. A. My in-
structions were to keep the crowd from crowding the polls or the piazza, which I
did.

Q. What was the reason for keeping the people from crowding together at the polls
or elsewhere? A. There were two reasons; 1st, the inspectors said that they could
not conduct the election with such crowded windows, and asked me to keep them
from off the piazza and allow only two up at the window at one time ; 2d, they did
not want the people living in the town at that time to mix with the people that had
refuged from here on account or the yellow-fever epidemic.

Q. You were at the polls throughout the day; did you see any persons, armed or
not armed, interfere, or attempt to interfere, with the right of any elector to vote for
the candidate of his choice? A. I was at the polls from the time they opened in the
moruing until eleven o'clock at night; I did not see any one armed, nor any one in-
terfered with from voting for any one he chose.

Q. Was it or was it not an exceptionally quiet and peaceable election ? A. The
most peaceable I ever saw with such a crowd.

Q. Was there more or less electioneering going on on the ground? A. There was.

Q. Did you see any colored men electioneering for the success of the Democratic
ticket? A. I did; I saw several around electioneering for the success of the Demo-
cratic ticket.

Q. Did yon hear any colored men express an opinion how the box was going?
A. I did ; I heard a good many say that they thought it would go Democratic.

Q. Did you hear them assign any reason why the colored voters were changing
from the Republican to the Democratic ticket ? A. They said they were not satisfied
with the Republican candidates.

J. C. BAILIS, being duly sworn for the contestee, deposes and says:

Question. State your name, age, occupation, and residence. Answer. J. C. Bailis;
48 years old ; clerk ; Gainesville, Fla.

Q. Were you present at the election held in the Gainesville precinct in November
last, and, if so, in what capacity? A. I was; in the capacity of poll clerk.

Q. Mr. Drake, a witness for the contestant, has stated in his opinion an error was
made by you in the transposition of the two Congressional candidates' names, Bull-
ock and Goodrich; state if any transposition was necessary; if so, was any error
made therein ? A. There was no transposition made; none was necessary. No, there
was no error made; there was no chance for any error in the way of transposition.

Q. The returns show that the Republican Presidential electors received more votes
at the Gainesville box than the Republican Congressional candidates; Mr. Drake at-
tempts to account for this by a supposed error of yours in transposition; you say
there was no error in transposing the name ; how do you account for the difference
in the vote? A. Well, I account for it from the fact that Mr. Bullock would natur-
ally draw some votes from the Republican votes; there are of my own knowledge
Northern men here who told me that they voted for the county Democratic and Con-
gressional candidates, Robert Bullock; in other words, voted the whole Democratic
ticket except the Presidential electors; that they were National Republicans, but
could not vote with the negro.

Q. What State are you a native, and how long have you resided in Florida? A.
Native of New York State, and resided in Florida about seven years.

Q. State, if you know, what action was taken by the sheriff on the day of the
election to keep the poll from being too crowded, and at whose request, and for what
reason ? A. The room was very dark, and that it was a dark day ; the police were
unable to keep the door and window clear; at the general request of the managers
of the election the sheriff was asked to clear the yard, and admit voters only in groups
of two and three, in order to give all an opportunity to vote without crowding, and
to lessen the danger of infection from yellow fever, as it was reported that several
suspected cases were present on the grounds ; no objections were made to this action
on the part of the sheriff, and the voting proceeded in an orderly manner till the
closing of the polls, and more rapidly than previous to this action. It is a fact, too,
that, the yellow fever broke out in the house in two days after the election in which
the polling-place was held.

Q. Was any rioting or intimidation of voters, or was the election a quiet and peace-

GOODRICH VS. BULLOCK. 605

able one ? A. There was no rioting or intimidation, and I never saw a more quiet
and peaceable election.

Q. Electors, then, were allowed to deposit their ballot for the candidates of their
choice without hindrance or interference from any one ? A. I saw nothing that
could be construed as a hindrance or interference.

HART JOHNSON, a witness for the contestee, being sworn, says :

Question. What is your name, age, and place of residence ? Answer. Hart John-
son ; aged 30 years ; reside in Gaiusville, Fla.

Q. Where were you on the 6th day of November, 1883 ? A. I was in Gainsville.

Q. Were you at the polls of district No. 7 that day ? A. I was.

Q. Did you see Mr. Wienges, the sherilf, or any of his deputies around with Win-
chester rifles or other guns on that day ? A. I did not.

Q. Were you at the polls all day ? A. I was.

Q. If there was any intimidation there that day, and if there had been any per-
sons armed with Winchester rifles or other guns, would you have seen them ? A. I
would.

Q. And you say you did not see anything of the kind that day ? A. No, sir ; I did
tot.

Q. Describe the manner in which the election was conducted as to voting. A.
They were placed two to two ; there was a line struck from the gate and orders given
for them to go up two aud two.

Q. Why were the people placed in line this way ? Was it to keep the people from
crowding up to the polls f A. It was.

Q. Did the voting go on more rapidly after this line was made than before ? A.
There was more quietness kept after it was struck ; they voted more regular than be-
tore.

Q. Were all voters, white and black, Democrats and Republicans, required to con-
form to this rule as to going up and voting two by two ? A. They were.

Q. It is not ? fact that the county board of health gave Mr. Wienges, the chief
quarantine officer of this county, orders to keep the people from crowding together
as much as possible on account of the prevalence of yellow fever in Gaiusville at
that time, so as to prevent the yellow fever from spreading ? A. It is a fact.

Q. Is it not a fact that the white and colored voters were joking and jesting with
each other in regard to the result of the election on that day ? A. They were.

Q. How longhaveyou beena member of the Republican party in Alachua County ?
A. About twenty-four years.

Q. Are you a white man or a black man ? A. I am a black man.

Q. Is it not a fact that two colored men, Lewey and Sebastian, were nominated
for the offices of county judge and county tax assessor by the regularly called Repub-
lican county convention in this county previous to the last election ? A. This is a
fact.

JAMES B. CULLEN, being duly sworn for the contestee, deposes and says:

Q.- State your name, age, occupation, and place of residence. A. James B. Cullen;
48 years old ; deputy sheriff, Gainesville, Fla.

Q. State how long you have been a resident of Florida, and where you came from,
and what brought you here. A. I have been [here] over twenty-three years; from
New York State; I was brevet major in the 7th Infantry United States Army, and
was ordered here, and resigned from the Army in 1868, and have remained here ever
since.

Q. State whether or not you were at the polls at the last election held in Novem-
ber in this precinct, number 7, and whether there was any intimidation of voters at
the polls. A. I was at the polls from the time they opened until they closed. There
was no intimidation; the colored men were by themselves; the whites kept from
them on account of hearing of suspects of yellow fever among them, and the election
was as quiet as any I ever saw. I was at the polls in the capacity of deputy sheriff
and assistant quarantine officer. Our orders were from the board of health to keep
the crowd from gathering in large numbers. I saw no guns nowhere on the grounds.

Q. State whether or not the orders of the board, above referred to, in keeping the
crowd from gathering in large numbers, prevented any person in any way, shape, or
form, or in any way hindered or delayed them from voting. A. It did not.

Q. State whether you saw any colored people working in the interest of the Demo-
cratic ticket; and, if they gave any reasons in your presence for so doing, state them.
A. There was a good many working for the success of the Democratic party. The
reason of this action of the voters was that the Republican county executive had dis-
placed two regularly Republican nominees, colored men, and put two white men on
in their place. The colored people were very much incensed about the two colored
men being taken down. This incense was shown on the streets of Gainsville before
the day of election, and they did not intend to vote the Republican ticket.

606 GOODRICH VS. BULLOCK.

Q. State if you are familiar with the elections in Florida for the past eighteen or
twenty years; and, if so, whether you did not observe a greater disposition on the
part of the colored voters to break away from party lines at the last election and vote
for whom they please than ever before. A. I have been here ever since the first elec-
tion was held here after the war, and at most every election as deputy sheriff. I did
observe a greater disposition to break away from party lines than heretofore, and
think one reason was that they was left to some extent without leaders on account
of the yellow fever.

Q. State what the reason was, if the inspectors gave you any, for keeping the crowd
from the window. A. It was so dark is one reason, and nearly suffocating on account
of heat, being only one window by which we could vote or get light. After that they
were put outside of the gate, and the election or voting proceeded very rapidly by
letting two go to the polls to vote without one pushing the other, as was done hereto-
fore.

ARCH GREEN, being duly sworn as a witness for contestee, deposes as follows :

Question. What is your name, age, place of residence, and occupation? Answer.
Arch Green; age, 35; Gainesville, Fla.; occupation, teamster.

Q. Are you a white man or colored man ? A. Colored man.

Q. What election precinct in Alachua County do you live in? A. Gainesville pre-
cinct No. 7.

Q. Were you present throughout the day at the election held in precinct No. 7
on November 6, 1888 ? A. I was.

Q. State whether or not the election was quiet and peaceable? A. It was peace-
able.

Q. Did yon see Mr. Wienges, the chief quarantine officer and sheriff, or any of his
deputies, on that day with Winchester rifles and threatening to interfere with the
right of any person, white or black, to vote? A. No ; I did not.

Q. So, then, if there had been any intimidation of voters by these officers on that
occasion you would certainly have known it ? A. I would.

Q. Were you at the polls that day distributing tickets; and, if so, what was the
character of the tickets ? A. I was there distributing tickets ; I had some Demo-
cratic tickets and some Republican tickets.

Q. About how many straight Democratic tick' ts did you distribute to colored
voters on that day ? A. About fifty or seventy-five, I suppose.

Q. About how many of these Democratic tickets that you distributed to colored
voters on that day you have reason to believe were voted? A. I suppose about fifty
that I was sure were voted.

Q. Why is it that you think that so many colored men voted the straight Demo-
cratic ticket at the last election ; was it because some of the white Republican nom-
inees refused to run on the ticket with the colored Republican nominees ? A. That
is the very reason they did it; because we had some white nominees on the ticket
who said they would not run with the colored nominees.

S. H. WIENGES.

Question. What is your name and place of residence ? Answer. S. H. Wienges
Gainesville, Fla.

Q. Did you hold any official position in Alachua County on the 6th day of Novem-
ber, 1888; it so, what was it? A. I did; I was sheriff of Alachua County and chief
quarantine officer.

Q. Where were you and what doing on the 6th of November, 1888 ? A. I was at
the voting place of precinct 7, Alachua County, and acting under instructions from
the board of health principally.

Q. On that day and at that place were there any armed men around the polls of
precinct 7 ? A. I did not see any myself, but heard there was one party with a gun
before I got there.

Q. Was this person who you heard had a gun a white man or a black man, Repub-
lican or Democrat? A. He was a black man, and I presume a Republican.

Q. Did you have any deputies there who were armed with rifles on that day ? A.
I did not.

Q. You have stated that you were acting principally as chief quarantine officer un-
der the board of health ; state what yonr instructions were from said board ? A. My
instructions were not to allow crowds to congregate for fear of spreading the fever.

Q. Please state the condition relative to the health of Gainesville at that time.
A. We had the yollow fever here.

Q. Had the yellow fever been epidemic in Gainesville at that time by the duly con
etituted officers? A. It was declared epidemic.

Q. In the discharge of your duties as health officer was there any discrimination
made by you or those acting under you in favor of or against either the Democratic
or Republican electors? A. There were nonu only in one case; a colored man who

GOODRICH VS. BULLOCK. 607

claimed to be sick asked if I would not get him to the polls so that he could vote and
get out of the rain, that it was raining; I got the crowd to open a way for him and
passed him inside of the line; with this one exception, whenever there was a white
man tin-re, my instructions was to my deputy, who was at the gate, to pass one white
and ouc colored at a time ; if no white man was present, then two colored men was
to t ass at a time.

Q Stafe the order or manner of voting that day, as to placing the crowd as they
approach the polls. A. The crowd was outside of the yard, about 60 or 70 feet from
the house ; they were allowed to come in two at a time ; two at the piazza, two were
held back at the gate inside of the line, until one who was in the piazza had voted ;
then the two who were in line at the gate were permitted to go to the polls, and two
more were taken inside of the line.

Q. Prior to the adoption of this method had the voters crowded the polling place or
not ? A. They had ; they were crowded into the piazza so that the inspectors called
on me to remove them from the window so as to allow them to get some fresh air.

Q. Please give a description of the room in which they voted, the number of win-
dows, and what effect crowding around the voting place produced? A. The room
was a front room of the house, with two doors leading into it, one from an entry and
another from a back room ; the voting was done from the window on the south side
of the house ; I don't know whether or not there was any other window to the house.

JOSEPH SHANNON, being duly sworn for the contestee, says :

Question. What is your name, age, occupation, and residence? Answer. Joseph
A. Shannon; 47; farmer; Gainesville, Alachua County, Florida.

Q. Were you present at the general election held in November last at precinct
number 7, Alachua County ? A. I was.

Q. State whether or not the election was quiet and peaceable? A. It was.

Q. Were you there throughout the day, and did you see any intimidation of voters
by members of either political party? A. I was there and saw no intimidation.

Q Did you see any parties there armed with Winchester rifles or other guns? A.
I saw a negro there with a double-barrel shotgun.

Q. If there had been armed parties there, interfering with the right of any person
to vote, you would certainly have seen and known, would you ? A. Yes ; I would
known it.

Q. You state positively that there was no such occurrence at the polls on that day.
A. I do.

W. A. WALTERS, being duly sworn for contestee, says:

Question. State your name, age, and profession. Answer. W. A. Walters: 39
years old ; minister of the gospel.

Q. Are you a white man or a colored man? A. Colored man.

Q. Are you a Democrat or Republican in politics ? A. Republican.

Q. What election precinct in Alachua County do you live in? A. Gainesville, pre-
cinct number 7.

Q. Were you present throughout the day at the election held in precinct number
7, in Alachua County, in 1888? A. I was from 10 o'clock until the polls closed.

Q. State whether the election was quiet and peaceable or not. A. It was; appeared
so to me.

Q. Did there seem to be a friendly feeling between the white and colored voters,
and were they not laughing and jesting about the election with one another? A.
They were.

Q. Did you see any armed parties there threatening to interfere with the right of
any persons, either Republicans or Democrats, to vote? A. I did not.

Q. Did you see Mr. Winges, the sheriff and quarantine officer, or any of his depu-
ties there on that day ; and, if so, state what they did as far as under your observa-
tion ? A. I saw Mr. Winges and his deputies there keeping peace an'd everything
quiet.

Q. Did they have Winchester rifles or any other arms ? A. If they did I did not
see it. and I was there all day long.

Q. So, then, if there had been any intimidation of voters by these officers on that
occasion you would have certainly known it ? A. Yes ; I would.

Q. State, if you know, whether it was not the understanding among the electors
that on account of the prevalence of yellow fever in precinct No. 7 they were expected
and required to go to the polls singly, deposit the ballot, and retire without inter-
mingling more than possible? A. They were.

Q. Did you see the sheriff and his deputies make an effort to keep the people from
massing together in crowds at any one point, and did these officers state .why they
did so? A. They did. Mr. Winges and his office's stated why they were at the
gate, and told them it was on account of yellow fever, and they must not assemble
too much together ; that they could not all vote at once.

608 GOODRICH VS. BULLOCK.

It is claimed by the majority in their report that in

District No. 20, forty-nine duly qualified electors tendered their votes
for contestant and were refused.

District No. 10, thirty-three qualified electors tendered their votes for
contestant and were refused.

District ISTo. 6, fifty qualified electors tendered their votes for con-
testant and were refused.

District No. 2, forty-six qualified electors tendered their votes for
contestant and were refused.

District No. 16, six legal voters tendered ballots for contestant and
were refused.

District No. 11, ninety qualified electors tendered their ballots for
contestant and were refused.

District No. 3, ten legally qualified voters tendered their ballots for
contestant and were rejected,

District No. 19, seventeen qualified voters tendered ballots for con-
testant and were refused.

District No. I (Waldo), twenty-three qualified voters tendered their
votes for contestant and were refused.

District No. 15, fifty qualified electors tendered their votes for con-
testant and were refused.

Without undertaking to make here a critical examination of the tes-
timony relating to the several claims hereinbefore mentioned, we deem
it sufficient to say that we can not concur with the majority in holding
that the proof of the qualification of the voters referred to is satisfac-
tory, and that their votes should be counted as if cast. The testimony
shows that as a general rule the witnesses did not know the sections,
township, and range included in said districts so as to enable them to
state positively that the persons claiming to be voters were legally
qualified to vote in said districts; it shows in many instances that the
persons claiming to be voters had not applied to the supervisor of reg-
istration as the law requires to have their names placed upon the reg-
istration lists; it shows that the supervisor of registration was inter-
rupted in the discharge of his duties by the prevalence of the yellow
fever, and that the board of county commissioners were prevented
from meeting at the time and place designated by the same cause; it
shows that in many instances the persons referred to failed to do what
they were required to do in order to register, or to have their names
restored to the registration lists if they bad been improperly stricken
off.

We submit that the burden of proof is upon the contestant, and that
the testimony adduced by him is not sufficient to impeach the official
conduct of sworn officers, charged with the duty of ascertaining and
declaring the result of the election in this county.

When it is remembered that in the county of Alachua at the Con-
gressional election held in 1886 the Democratic candidate received 1,900
votes, and the Eepublican candidate received 1,742 votes, and when we
take into consideration the complete disorganization of the Republican
party in that county in the contest of 1888, it can not be a matter of
surprise that the county gave a Democratic majority for the contestee.
Indeed, no other result could have reasonably been anticipated.

It appears from the record that there was an open rupture in the
ranks of the Republican party, and, as a natural result, many colored
Republicans voted the Democratic ticket and contributed largely to the
increase of the Democratic vote. The testimony shows that two colored
Republicans, who were men of character and extensive influence in the

GOODRICH VS. BULLOCK. 609

county and had been fairly nominated by the regular Republican con-
vention, were unceremoniously stricken from the Republican county
committee because they were colored men, and that J. T. Watts, a
prominent colored man, who formerly represented the district in Con-
gress, was summarily removed by the same committee as county chair-
man. To show the state of feeling existing among Republicans in that
county we present the following testimony :

HENRY C. DENTON, a witness for contestee, being duly sworn, deposes as follows :

Question. State your name and residence. Answer. Henry C. Denton; Gainsville,
Fla.

Q. Was you present at the polls at precinct No. 7 at any time during the day on
the day of the last general election ? A. I was ^ in the afternoon.

Q. Did you see any colored men on that day and at that place distributing Demo-
cratic tickets and otherwise electioneering for the success of the Democratic party ?
A. I can't say that I did, as I was there only a short while. 1 went there to vote
and drove back to Arredouda, and did not have time to see how things were going.

Q. Were you present at the election at Arredouda? And, if so, state whether you
saw any colored men there working in the interest of the Democratic party. A. I
was present there on election day and saw a good many colored men working in the
interest of the Democratic party. I distributed tickets at both Gainesville and Arre-
donda. There were a good many colored men at Gainesville who promised me to vote
the Democratic ticket, and waited until I came up and distributed tickets before
they voted. I saw several colored men vote the Democratic ticket at Arredouda, but
did not at Gainesville, as I came up in a borrowed vehicle and could not remain long.

Q. You say that you distributed Democratic tickets to the colored voters at Gaines-
ville box, ami that these electors waited until you came in the afternoon in order to
obtain their tickets from you. Did they say to you that they intended to vote the
Democratic ticket, and did they ask you for that kind of a ballot ? A. They did.

Q. You say that you distributed Democratic tickets at the Arredonda box. Was
this near the polls, and did you see any colored voters who obtained their tickets from
you go immediately to the polls with their folded ballot f A. I did distribute tickets
at the Arredonda box ; was right at the polls and saw them put them in. Collison
and Martin, Republican distributors of tickets, were some distance off in the woods
distributing tickets, and we changed quite a number of them.

Q. You have heretofore resided at Arredonda and was temporarily living there
during the prevalence of yellow fever in Gainesville. State whether or not there was
great dissatisfaction among the colored Republicans there growing out of the action
of the county Republican executive committees removing two colored county nom-
inees and cubstituting in their place two white Republicans. State fully what result,
this action had upon the colored Republican voters in that precinct. A. I resided in
Arredonda from 1875 to 1881, and was temporarily living there when the election
took place. The action of the county Republican executive committee in removing
two colored nominees and substituting two white Republicans caused great dissatis-
faction among the colored voters at that precinct.

Q. Was or was it not common talk among the colored Republicans at Arredonda
before and on election day that they would pay off the Republican party for ignor-
ing their race at the polls ? A, Yes.

Q. Is it not a fact that the action of the Republican county executive committee
caused many colored voters to vote the Democratic ticket at the last election at that
precinct ? A. That is a fact that can not be denied.

Q. Did not kicking of Gen. J. T. Walls out of the chairmanship of the Republican
county executive committee also add to their dissatisfaction and determination for
revenge upon their white Republican friends? A. It certainly did.

Q. Is it not within your knowledge by experience, as well as observation, that col-
ored men who voted the Democratic ticket at former as well as at the last election,
who are so desirous of concealing the fact by fear of some of their own race that they
would bitterly deny it, and some even to the extent of denying it under oath ? A. I
have known many instances of that kind. I mean to convey the idea that they voted
the Democratic ticket and deny it, but so far as denying it under oath I could not say.

Q. You say you were distributing Democratic tickets at Arredonda. Did you give
any colored men tickets to distribute, and do you know whether Ihey distributed
them or not ? A. I did distribute tickets to colored voters at Arredonda, and know
of several colored men who were distributing them aleo.

JOSIAH T. WALLS, being duly sworn as a witness for contestee, deposes as fol-
lows:

Question. What is your name ; in what election district in Alachua County,
H. Mis. 137 39

610 GOODRICH VS. BULLOCK.

Florida, did you reside and vote at the election held November 6, 18 = 8 ? A. Josiah
T. Walls ; 1 voted at Arredouda Precinct No. la. and reside there.

Q. How long have you l>eeu a resident and voter of No. 12 district ? A. Since 1877.

Q. Were you present at or near the pollson November 6, 1888, at ArredondaNo. 12;
if so, how long T A. I was ; from about 7 a. in. to 10 p. m.

Q. What official position in the Republican party did you hold in this State on that
day t A. I was a member of the State central committee.

Q. Were yon or not a delegate to the county Republican convention that met in
Gaiuesville^Alachua County, Florida, to put a county ticket in the field, and did you
take part in said convention, and did said convention nominate and put a ticket in the
field or not f A 1 was, and they did put a ticket in the field.

Q. Did said convention make au executive committee for the county; and, if so,
who was the chairman of said committee? A. It did, and I was elected chairman of
the committee.

Q. Did you as chairman call the committee together the next day T A. I did not
call the committee together; the convention passed an order for committee to meet,
and I was elected chairman at that time.

Q. Were you present at the meeting of the committee held in pursuance of the reso-
lution passed by the convention ? A. I was.

Q. What was the object lor which said committee was called together ? A. It was
ordered by the convention that the committee meet the next morning at 9 o'clock and
organize by electing a chairman and secretary pthat was all the resolution embodied.

Q. What, if anything else, was done by said committee when it met and organized
the day after the convention adjourned T A. After the committee had organized Mr.
Barnes, J. E. Webster, and Mr. Callison appeared before the committee and stated
that they declined to run as candidates on the county ticket if Mr. Lewey and Mr.
Sebastion, two colored men, remained on the ticket.

Q. Did the committee take any action that you thought they were empowered to
do under any resolution, call, or authority, or precedent at said meeting! A. They
did not.

Q. Were Lewey and Sebastion, the two colored candidates nominated by the con-
vention, displaced from said ticket at said meeting of the committee ? A. They were.

Q. Was there not. protest made by you and others in said committee meeting against
said action, and did you and others point out that the drawing of the color line by
Barnes, Webster, and Callison would lead to a rupture and the disintegration of the
Republican party in this county? A. We did.

Q. Were you not called away a few days afterward to goon the State canvass with
the Republican candidate for governor, V. J. Shipman ? A. I was.

Q. Upon your return from the canvass were you not taken sick with what was at
that time reported yellow fever, and upon your recovery did you or not address a letter
to Webster and Barnes in relation to the removal of Lewey and Sebastion from the
county ticket, and was it an open letter or not? A. I was taken sick, as stated,
and on my recovery did address a letter to Webster and Barnes in reference to the re-
moval of Lewey and Sebastion ; the letter was dated September 22, 18^8.

Q. As a result, then, there were two Republican county tickets in the field on the
day "f the election ? A. There was.

Q Did not the action of Barnes, Webster, and Callison engender a very hitter feel-
ing among the white and colored Republicans, and did not a considerable number of
the colored people, including many of the old leaders in the party in. the different
precincts, regard it as an iusult to their rights and their intelligence to be told by
white men that to be a colored man was a disqualification to be a candidate on the
Republii an ticket for a county office ? A. It did create considerable feeling ; the peo-
ple resented it by their votes, and it certainly changed the result of the election in
this county, and there were not less than 700 colored voters in Alachua County who
voted the Democratic ticket for county officers.

Q. From your knowledge of the politics of this county are you able to say that this
bitter feeling between the white and colored Republicans did affect the entire Re-
publican ticket throughout the county T A. It affected it to some extent.

Q. Was not there more interest displayed and taken by the colored people at the
last election in district No. 12 in the election of the Democratic county ticket and the
defeat of Webster and Barnes than there was about any other part of the ticket f A.
There was.

Q. Were yon in Arredonda the night preceding the election, and did you see Mr.
L. A. Barnes, the chairman of Republican State campaign committee, and also of
the county campaign committee, and candidate for clerk of the court, and did he
have any conversation with you ai. others; if so, state a* near as you can what that
conversation wast A. Yes; I was at Arredonda, at Chesuut & Stringfellow's store ;
J met Mr. Barnes there, and the following conversat on tookplice: He requested me
to support him for clerk of the court ; that he had always been my friend; that he
did not care anything about the real of the ticket ; and whether he was elected or Hot

GOODRICH VS. BULLOCK. 611

he wanted Henry Den ton elected as tax collector, and be seemed to be excited, and
says: "In short, I do not care a damn jnst so Bill Sheats was defeated as superin-
tendent of schools."

Q. Was Henry Deutou the candidate on the Democratic ticket for tax collector at
the last election or not? A. Yes.

Q. From th ; best of your information, knowledge, and belief did not a larger num-
ber of colored people vote the Democratic ticket at the last election than at any elec-
tion prior thereto? Was not that defection caused, in your opinion, by the drawing
of the color line for candidates ? A. Yes ; and it was caused by drawing the color line.

VIRGIL GEORGE, being sworn, says :

Question. What is your name, age, and place of residence ? Answer. Virgil George ;
aged 66 years of age ; reside at Arredonda Precinct No. 12.

Q. Are you a white man or a colored man? A. I am a colored. man.

Q. Where were you and what were you doing on the 6th day of last November, 1 88,
the day of the last general election ? A. I was in Arredonda Precinct, No. 12, Alachua
County, Florida, and one of the managers of the election in precinct No. 12.

Q. Were you a Republican or Democrat manager of the election ? A. I was a Re-
publican manager.

Q. Were you in the room where the ballot-box was kept where the electiou was
carried on during that day and all of the time up to the end of the counting of the
ballots? A. I was.

Q. Did you and the other inspectors keep the ballot-box on the table by the win-
dow in lull view of the public? A. Yes; we did.

Q. Did you keep the ballot-box by the window and keep the window open all dur-
ing the day and up to the time tbe counting was commenced ? A. Yes; we did.

Q. As an inspector will you swear that you, together with other inspectors, counted
the ballots as cast in that ballot-box, and returned them as they were counted ; and
is it not a fast that you can read and write and kept a tally-sheet of the counting ?
A. Yes ; that is a fact.

Q. Is it not a fact that the ballot-box remained on the table with the window open
after the polls had closed till a light was obtained to commence the counting ? A. It
is a fact.

Q. Were there any colored and white people standing outside watching the box all
this time to see that everything was kept straight? A. There was during this time.

Q. Were they Republicans or Democrats or both? A. Both Democrats and Re-
publicans.

Q. Did you or any of the other inspectors allow any person to come inside the room
where the ballot-box was during the day and up to the time you commenced count-
ing the ballots or not? A. We did not.

Q. You say you staid in the room all day and up to the time the ballots were
counted ; were you very careful to keep your eyes on the ballot-box and watch it all
during the clay and up to the time the count was commenced, so as to perform your
full duty as an inspector? A. Yes, sir; I did.

Q. Are you willing to swear, as an inspector, that there was no tampering with the
ballot-box done, and that the votes were counted as cast? A. Yes, I am.

Q. It has been charged, and attempted to be proved, by the contestant, that you
were in a state of intoxication that day and disqualified as an inspector to discharge
your duty. Is this charge true or false? A. It is false; I neither tasted or smelled
or saw a drop of liquor that day, and I discharged my duty as an inspector to the
best of uiy ability, so help me God.

Q. Then the charge that you were intoxicated with liquor on that day, while yon
were acting as inspector, is absolutely false and without foundation, is it? A. It is
false.

Q. How long have you been a member of the Republican party in this county; and
have yon always voted the straight Republican ticket up to the time of the last elec-
tion? A. 24 years; always voted the straight Republican ticket until the last elec-
tion.

AMOS GEORGE, a witness for contestee, being sworn, deposes as follows:

Question. State your rfame, place of residence, and color. Answer. Amos George;
live at Arredouda precinct, Alachua County, District No. 12; black man.

Q. Where were you on the 6th day of November last, and what were you doing on
said day, the same being general election ? A. I was at Arredonda trying to cast my
vote.

Q. Were you engaged in distributing tickets on that day at that precinct; and, if
so, what sort of lickets? A. I distributed a good deal of tickets among my friends,
who said they were going to vote them.

Q. Were the tickets yon distributed among your friends Republican or Democratic
tickets? A. They said they were Democratic tickets. I am a Democrat myself.

Q. Did those peraona to whom you distributed thee Democratic tickets tell you

612 GOODRICH VS. BULLOCK.

that they intended to vote the same ? A. Yes, sir ; all of them said they -were going
to vote same ticket I did.

Q. Were these per-ons to whom you distributed tickets white or black persons?
A. They were all colored, like myself.

Q. Do you know of any other colored man who was distributing Democratic tickets
that day at Arredouda? A. I do not know positively of any colored man distribut-
ing Democratic tickets that day. A heap of them used Democratic tickets that day,
but would not own to it.

Q. Do you mean to say that a good many colored men at Arredonda that day voted
the Democratic ticket, but do not now own to the same? A. Yes, sir; lots of them
there voted the Democratic ticket, but are ashamed to own it now.

Q. Did you hear any of these colored persons at Arredonda that day say that they
had voted the Democratic ticket ? A. Yes, sir ; I heard lots of them say it.

Q. Do they now deny it because they are afraid of the colored Republican lead-
ers? A. Yes; the colored people are afraid of one another, and go and vote the
Democratic ticket, and now they don't own it; I voted the Democratic ticket and
they did it.

Q. Were these tickets you distributed the straight Democratic ticket, containing
the names of all the Democratic nominees? -A. They told me they were straight
Democratic tickets; I told them I wanted nothing but straight Democratic tickets.

So far as Alachua County is concerned, we submit in view of all the
testimony that the official returns have not been successfully assailed,
and that the vote should be counted as returned.

HAMILTON COUNTY.

We concur with the majority in holding that the 13 votes in district
No. 3, duly tendered for contestant and rejected upon the ground that
the voters had changed their residences from one place to another in
the same precinct, should be counted for him. While section 8 of the
act of June 7, 1887, may possibly admit of a different construction, we
are inclined to the opinion that a mere change of residence from one
house to another in the same voting precinct should not deprive an
elector of his right to vote. We also concur with the majority in hold-
ing that the 104 votes cast for contestant and the 2 votes cast for con-
testee in district No. 2, which were thrown out because there was a
printer's dash under the names of some of the candidates on the tickets,
should be counted. We do not believe that this was such a distin-
guishing mark as justified the rejection of these ballots.

The same remark may be made as to the 48 votes claimed for con-
testant in district No. 7. We also agree with the majority in holding
that 18 additional votes should be counted for contestant in district
No. 5; but we do not think that the 18 additional votes claimed in
district No. 3 should be allowed to the contestant. It will be noticed
that the witness relied upon to establish this claim does not pretend to
know that the persons referred to were legally qualified voters under
the laws of Florida.

As to the result of our examination, we have come to the conclusion
that 183 additional votes should be counted for the contestant in this
county, and 2 additional votes for the contestee.

DUVAL COUNTY.

We concur with the majority in the opinion that the 13 ballots for
contestant in district No. 8 and the 1 ballot for contestee, which were
rejected on the claim that they had specks on them, should be counted.
We also think that the 9 ballots for contestant in district No. 21, which
were thrown out on the ground that there was a printer's dash on them,
should be counted ; but we think that the 45 votes for contestant in
district No. r> were properly rejected, because the name of one of the

GOODRICH VS. BULLOCK. 613

candidates on the ticket was written with a red lead pencil. We also
agree that the 12 additional votes claimed for contestant in district No.
12 should be counted. We do not agree to the claim made for contest-
ant of 12 additional votes in district No. 8, 8 additional votes in dis-
trict No. 21, 1 additional vote in district No. 23, 29 additional votes in
district No. 17, 3 additional votes in district No. 18, 39 additional votes
in district No. 20, 3 additional votes in district No; G, 26 additional
votes in district No. 15, 3 additional votes in district No. 7, 75 addi-
tional votes in district No. 16, 28 additional votes in district No. 19, 62
additional votes in district No. 22, and 18 additional votes in district
No. 13.

An examination of the testimony relied upon to establish these sev-
eral claims will show, we think, that it is legally insufficient for the
purpose intended. It is not the best evidence which could have been
produced. The persons themselves should have been called and re-
quired to testify. Such hearsay evidence as is relied upon is not admis-
sible; but if it should be accepted, it proves that the votes of nearly
all the persons referred to were rejected because they failed to produce
the certificate of registration required.

As the result of our investigation, we credit contestant with 34 addi-
tional votes in this county and the contestee with 1.

BADE COUNTY.

There was no charge of fraud in this county, and it appears that the
vote returned was about the usual vote as cast in preceding elections.
We concur with the majority that the vote as returned from this county
should be counted.

COLUMBIA COUNTY.

We concur with the majority that 127 additional votes should be
counted for the contestant in this county.

PUTNAM COUNTY.

We concur with the majority in the opinion that 15 additional votes
should be counted for contestant in this county.

VOLUSIA COUNTY.

As to the 31 votes claimed in this county for contestant, it appears
from the testimony that they were rejected by the inspectors because
the names of the persons offering them were not found on the registra-
tion list, and in the absence of proof to the contrary there is a legiti-
mate presumption that they were properly rejected. It has been re-
peatedly decided by the House of Representatives that the acts of
proper officers, acting within the sphere of their duties, must be pre-
sumed to be correct, unless shown to be otherwise.

ORANGE COUNTY.

We concur with the majority of the committee in the opinion that 31
additional votes should be counted for contestant in this county, but
we do not think that the 9 votes claimed should be allowed, because it
appears that the names of eight of the persons referred to bad been
stricken from the registration list, and that the other one had been con-
victed of larceny.

614 GOODRICH VS. BULLOCK.

MARION COUNTY.

We difler from the majority in holding that the 83 ballots for con-
testant at Fautville precinct, thrown out because certain names were
written in red ink, should be counted. It appears from the testimony
that the inspectors were unanimous in the rejection of those ballots;
that it was not known at the time of their rejection whether they had
on them the names of the Democratic or Eepublican candidates, and
they were rejected solely for the reason that they were written in red
ink. Section 23 of the Florida election laws of 1887 provides as follows-

The voting shall be by ballot, which ballot shall be plain white paper, clear and
even cut, without ornaments, designation, mutilation, symbol, or mark of any kind
whatever, xcept the name or names of the person or persons voted for and the office
to which such person or persons are intended to be chosen, which name or names and
office or officers shall be written or printed, or partly written and partly printed,
thereon in black ink or with black pencil, and such ballot shall be so folded as to
conceal the name or names thereon, and so folded shall be deposited in a box to be
constructed, kept, and disposed of as hereinafter provided, and no ballot of any oilier
description found in any election box shall be counted.

We do not concur with the majority in the opinion that, in addition
to the 83 votes referred to, 466 votes should be counted for the contest-
ant in this county. A careful examination of the testimony relied upon
can not iail to impress the impartial reader with the idea that mauy of
the witnesses did not know what they were testifying about. As an
illustration, we furnish from numerous examples the following:

Elias Jackson testifies, p. 856, as follows :

Q. What is Congress? A. Mr. Williams told me to vote for the Pugrakin nominee.
Q. Is Congress a man or a woman? A. I think it is a woman, a black woman.

Henry White, p. 842, testifies as follows:

Q. Who was the Republican nominee for Congress in the Second Congressional dis-
trict of Florida at the election held November 6, 1888, and who was the Democratic
nominee ? A. Bob Ingersoll, Republican, and John Sherman was the Democratic
nominee.

As to the suggestion of the majority that E. M. Gregg, supervisor of
registration, was actuated by a deliberate and wicked purpose to de-
prive Eepublican voters of their rights, we submit that it is not sus-
tained by the evidence. To sustain this charge the testimony of one
Jesse Reddick has been offered. An examination of his testimony
will show that it bears upon its face internal evidence of falsehood, and
that it can not be accepted as true. As further proof that the statement
of the said Eeddick is utterly unworthy of credit, we call attention to
the affidavits which have been furnished and filed with the committee,
and appended to this report.

As to the " side boxes" referred to in the testimony of Monroe, Tid-
well, and Eobinsou, we submit that they were used without any au-
thority of law, and that the so called returns made from them are
entirely worthless for the purpose of setting aside the official returns
made from the ballot-boxes provided by law and by the sworn officers
of the election. We call attention to the testimony of E. M. Gregg,
supervisor of registration, as a complete refutation of the charges pre-
ferred against him, and as showing that he made no discrimination
whatever between Republicans and Democrats in the discharge of his
official duties

To sustain the testimony of Mr. Gregg upon the issue referred to we
present the following:

July Brown, colored, p. 976, testifies that he acted on the police force in the city
of Ocala five years, and also as deputy sheriff at different times during the past seven

GOODRICH VS. BULLOCK. 6l6

r*ars ; tbat he is personally acqnainted with the colored men whose names are enum-
erated ; that he knows said persons changed their places of residence betw- en Sep-
tember 3, 1887, and November 6, 1888, aad that he notified the registration officer of
said change of residence.

J. D. Williams, deputy sheriff, testifies, p. 977, that he was wrll acqnainted with
the persons whose names are givtn; tuat they changed their residences within the
Ocala precinct between the 3d day of September, 18h7, and 6th day of November,
1888, and that he so notified E. M. Gregg, the registration officer.

E. L. Ferguson testifies, p. 979, that the persons whose names are given changed
their places ot residence from one point to another in the same district, or from one
district to another, between the 3d day of September, 1^87, and the 6th day ot Novem-
ber, Io88, and that he so notified the supervisor of registration.

So far as this county is concerned, we submit that the contestee has
more cause of complaint than the contestant. The testimony shows
tbat at Ocala precinct the friends and supporters of the contestant
adopted the most unwarrantable methods to prevent the free exercise
of their rights and privileges by the voters. (See testimony of B. P.
Lyons, p. 966, and J. T. Lancaster, p. 967, and E. S. Williams, p. 967.)

MADISON COUNTY.

We can not agree with the majority of the committee as to the result
reached in this county. Without undertaking to make a critical exami-
nation in this report of all the testimony relating to the county of Mad-
ison, we adopt as substantially correct the following views of the coii-
testee's attorney as contained in his brief:

We propose to notice briefly his claim in. the several districts. In the Cherry Lake
district, No. 7, he claims one hundred and thirty-one (131) votes upon the ground that
the regularly appointed officers of the election were so intimidated that they refused
to open the pulls, and that under the circumstances the Republicans elected a bojird
of election officers, who held an election at a different place from that appointed by
law, at which place one hundred and thiity-one (131) votes were cast for contestant.

The testimony of M. H. Waring, p. 225, shows that an election was h"ld about a
quarter of a mile from the regular polling place by inspectors chosen by the bystanders,
all of whom were Republicans; that said election was nor recognized by the Demo-
Irats as valid, ami that none but Republicans participated in it.

Charles Hayes testifies, p. 236, that none but Republicans took part in the so called
election in the Cherry Lake precinct, tbat all of the inspectors were colored men, and
that they had no registration list showing who were the legally qualified voters.

J. F. Livingston testifies, p. 238, that some colored man, whose name he does not
know, brought to him as supervisor of registration a ballot-box purporting to come
from Cherry Lake precinct, and that he had opened the ballot box to get a book
from it.

The testimony of H. B. Coffee, G. W. Barnard, J. L. Edwards, W. Townsend, and
Richard Boyd, taken by contesteeand found in the supplemental record showing the
"Tes imouy from Madison County, ' } proves that no election was held at the regular
polling place in Cherry Lake piecinct, that the regularly appointed inspectors were
apprehensive of an attack at night trom the colored people, who had collected and
deposited guns near to the regular polling place, and that the inspectors, fearing
that their lives would be endangered, declined to open the polls. Whatever may be
thought of the reasonableness of the apprehension of personal danger, which they
evidently felt, and their failure to perform the duties required of them by law, we
submit that the vote claimed for the contestant at this precinct can not properly be
counted for him. There was no election held in this precinct. The persons who un-
dertook to conduct an election had no authority whatever to open polls at a place
different from that appointed by law, and the Democratic voters, well knowing that
fact, declined to recognize or to participate at all in the so-called election. The pro-
visions of law which fix the time or place of holding elections are to be construed as
mandatory and not as merely directory. The reason for this is obvious. Every
voter is piesmned to know the law, and to be thereby infoimed as to the time when
and the place where he may deposit his ballot; but if that time or place be changed
without proper authority and due notice, no voter can be held as legally bound to
take notice of the c-hauge. (See McCrary on American Law of Elections, sec. 114.)

As to Madison district No. 1, the te.-timony shows that the ballot-box and ballots
were taken and carried away about ten o'clock at night, while the inspectors were
jn the act of canvassing the votes. No return whatever has been made from thisdis-

616 GOODRICH VS. BULLOCK.

trict, and yet the contestant's attorney claims that of the six hundred and fifteen (615)
votes said to have been cast two hundred and six (206) should be counted for contestee
and four hundred and nine (409) for contestant. The best evidence would of course
be that of the voters themselves, but instead of producing that, an effort is made to
show the Democratic vote by proving the number of votes cast for county commis-
sioners at an informal election held on the same day. We submit that, according to
contestant's own testimony, the vote given for the county commissioners can not be
accepted as a fair test of the Democratic strength in that precinct, while the testi-
mony of contestee shows that very little interest was felt by the Democrats in that
matter, and that a great many of them would not vote, because they regarded it as
a farce. (See Testimony of R. M. Witherspoon, p. 12, "Testimony from Madison
County;" also Testimony of James N. Adams, p. 5.)

There is no legal evidence in the record to show what vote the contestant received
in Madison district No. 1, and he can not expect the committee to guess at it and to
assume that he received four hundred and nine (409) votes because two hundred and
six (206) Democrats by an informal vote recommended to the governor the appoint-
ment of certain county commissioners.

It is claimed by contestant's attorney that in Hickstown district No. 10 one hun-
dred (100) votes should be counted for contestant and thirty (30) for contestee. It
appears from the testimony, pp. 232, 233, 234, that there was no registration list used
at this precinct, and that after the inspectors had canvassed about thirty (30) votes
they refused to proceed further, left the polling place, and abandoned the ballot-box,
which was afterwards carried to Mr. Henderson's store by a little negro boy.

The testimony of Elza McCraine, p. 6, and Rufus E. Dickinson, p. 12, " Testimony
from Madison County," shows that the inspectors at this precinct, after the closing
of. the polls, were frightened off by thirty (30) armed negroes, who made a hostile
demonstration in front and in rear of the house. Whatever may be thought of the
conduct of the inspectors in thus abandoning their post of duty, this committee can
not determine how many votes were given for the rival candidates at Hickstown pre-
cinct No. 10 in the absence of any reliable information whatever upon that subject.
The contestant's attorney claims that twenty-three (23) votes should be added to
contestant's vote and a like number deducted from contestee's vote at Norton's Creek
district No. 3, and he relies upon the testimony of John Wilkins, p. 236. It will be
seen, however, that while this witness testifies that he distributed twenty-six (26)
ballots to Republican voters, he is not willing to swear that they voted the Repub-
lican tickets.

The contestant's attorney claims in his brief that thirty-six (36) votes shonld be
added to contestant's vote and a like number deducted from contestee's vote in Mace-
donia district No. 11. Instead of producing the voters themselves, whose evidence
would be the best the case admits of, it seems that the contestant is content to rely
upon the testimony of one Patrick Warock, who testifies, p. 242, that he distributed
sixty-five (65) ballots to persons claiming to be Republicans, and that he went to the
polls with these persons and saw them vote. Surely no argument is necessary to
prove that official returns made by sworn officers of the election can not be changed
by such testimony as that relied upon here.

It is claimed by contestant's attorney that one hundred and thirty (130) votes were
cast for contestant and not returned from Greenville, district No. 5, and that nineteen
(19) votes were illegally rejected which should be added to contestant's vote. The
testimony, pp. 244, 245, 250, 251, shows that no return of the vote was made from this
district or canvassed by the board of county canvassers. It shows that the ballot-
box was entrusted by the officers of election to one J. H. Redding, who was not act-
ing in any official capacity and had no authority to receive it. According to the
statement of Redding the ballot-box was forcibly seized by armed men and taken
from his custody. He testifies that the aggregate vote cast at this precinct was about
two hundred and fifteen (215), and of this number he thinks the contestant received
one hundred and thirty (130). In the absence of the official returns, we insist that
the voters themselves should have been called to testify how they voted. This would
undoubtedly have been the best evidence, and as it was not produced the contestant
has failed to establish his claim.

In addition to the one hundred and thirty (130) votes above referred to, it is
claimed upon the testimony of Thomas Greenwood, p. 248, that nineteen Republican
votes were illegally rejected at this poll. We submit that the testimony relied upon
is not sufficient to establish the claim. On the contrary, it appears from the state-
ment of the witness himself that the votes of the nineteen persons referred to were
rejected because they had no certificates of registration, and it does not appear that
they had been properly registered. It is claimed by contestant's attorney in his brief
that sixty-eight (6ri) votes should be added to contestant's vote, and a like number
deducted from contestee's vote at Ellaville, district No. 2, upon the ground that
twenty-nine (29) votes were returned aud canvassed for contestant, and that rdnety-
6 even "(97) votes were cast for him at this poll. To establish this claim he relies upon

GOODRICH VS. BULLOCK. 617

the testimony of J. H. Stripling, p. 249, but we submit that it is not sufficient for
that purpose. The witness testifies that he distributed ninety-seven (97) ballots to
Republicans but he admits, upon cross-examination, that he does not know and can
not swear that these persons cast the identical ballots which he distributed to them.

In addition to the official returns from this precinct we rely upon the testimony of
William P. Denham and J. A. M. Brown, p. 11, "Testimony from Madison County,"
who testify that the election at this precinct was fairly and properly conducted. It
is claimed by contestant's attorney in his brief that two hundred and fifty-nine (259)
votes should be added to contestant's vote at Hamburg, district No. 6. The testimony
shows that the ballots were seized and destroyed by a band of armed men, and that
no return of the vote was made from this precinct. It appears that Reuben Haines
and Austin Hays distributed two hundred and fifty-nine (259) ballots to persons claim-
ing to be Republicans, but they do not know and do not pretend tt> know that these
persons voted the identical ballots that were given to them. The committee can not
count votes for the contestant upon such hearsay evidence as is relied upon here. The
contestant has failed to produce the best evidence that was attainable; that is, the
evidence of the voters themselves.

The authority quoted by contestant's attorney (McCrary on Elections, Sec. 293)
shows that " where a voter refuses to disclose or fails to remember for whom he voted,
it is competent to resort to circumstantial evidence to raise a presumption in regard
to that fact."

The contestant's attorney, after figuring out a majority in Madison County of four
hundred and thirty-seven (437) votes for contestant, suggests that the vote as thus
corrected by him approximates very closely the vote as cast in the Congressional elec-
tion of 1882 when (as alleged) Mr. Bisbee, the Republican candidate, received in that
county a majority of four hundred and seventy-six (476) votes. In reply to that sug-
gestion we call attention to the testimony of J. P. Perry, p. 240, showing that in the
Congressional election of 1886, Mr. Dougherty, the Democratic candidate, received
in the county of Madison twelve hundred and eighty-one (1,281) votes, and Mr.
Greeley, the Republican candidate, received four hundred and twelve (412) votes.

J. F. Livingston, a witness for contestant, testifies, p. 241, that in his opinion the
county would have been Democratic if there had been a fair election last fall.

Cornelius T. Coyle, witness for contestant, testifies, p. 245, that in his opinion at the
last election if the votes cast had been counted there would have been a majority of
from forty (40) to sixty (60) in favor of the Democratic nominee, and that the county
has on several occasions given a Democratic majority. He further testifies that,
according to the best of his knowledge, from one hundred and forty (140) to one hun-
dred and sixty (160) negroes in Madison County voted the Democratic ticket at the
election of 1888.

We submit, with confidence, that so far as the county of Madison is concerned, the
contestant has failed to establish, his claim.

i
NASSAU COUNTY.

As to this county we adopt the views of contestee's attorney, as fol-
lows :

The contestant's attorney, in his brief, claims that the return from district No. 5 in
Nassau County, which return gives to contestee one hundred and twenty-one (121)
votes, and to contestant thirteen (13) votes, should be rejected upon the ground that
more than eighty (tfO) persons were allowed to vote who were not residents of the said
district. To establish this claim the testimony of David B. Hudson and others, p.
577, et seq., is referred to, but we submit that the registration lists furnish the best
evidence as to the residence of the voters, and that they must be accepted as true un-
less they are corrected in the mode provided by law.

The testimony of S. D. Swann, supervisor of registration in Nassau County, p. 586,
shows that a list of all the persons entitled to vote in district No. 5, made from the
registration books in his office, was furnished to the inspectors of the election in that
district.

It appears from the testimony of William Green, Republican inspector in district
No. 5, that the names of the persons voting were on the registration list.

As to the claim of contestant's attorney in his brief that nineteen (19) persons,
whose names are enumerated, ottered to vote for contestant in district No. 1 and dis-
trict No. 12, and were illegally rejected, we submit that the testimony relied upon is
altogether too vague and indefinite.

The witnesses state that they offered to vote for contestant and that their votes
were refused, but, with one or two exceptions, they fail to state why their votes were
rejected by the inspectors.

In the absence of any testimony on the subject how can the committee say that said
votes were illegally and improperly rejected T

618 GOODRICH VS. BULLOCK.

The contestant's attorney in his brief claims that the returns from district No. 9,
according to which contestee, received two hundred and twenty-one (221) votes and
contestant received thirty-eight (3fc) votes, should be rejected and no votes therein
stated should be counted, on the ground that no election was held at the place desig-
nated by law. It appears from the testimony that the election in district No. 9 was
held at Booth's Mill, about three-quarters of a mile distant from the town of Calla-
han, the usual place of voting ; bnt it is not shown that the change of place was not
legally made, that it was not duly advertised, or that the Republican voters had no
notice of the change of place. On the contrary, it appears that the Republican voters
did have notice, because they appeared at the polls and participated in the election.
In the absence of any proof in the record, it is fair to presume that the change of
place was legally made by the board of county commissioners, and that it was duly
advertised according to law. We understand the fact to be that the voting place
was changed by the lioard of county commissioners because there was yellow fever
at Callahan, and the quarantine regulations prevented persons from going into the
town, and tha> legal notice of the change was published in the "Florida Mirror," the
only newspaper published in the county. We submit that the committee may take
notice of this fact without formal proof. However that may be, the courts have held
that "the voice of the people is not to be rejected for a defect or even a want of notice
if they have in truih been called upon and have spoken." In this case, whether
there, was notice or not, there was an election, and the people of the district voted,
and it is not alleged that any of them failed to vote for the want of notice.

The contestant's attorney claims in his brief that the return from district No. 13,
or Bryceville, should be rejected and no votes counted for either party, on the ground
that it is tainted with fraud, and a large number of persons were allowed to vote
who had never resided in the district. John A. Ellerman testifies, p. 586, that there
are nineteen (19) names of persons on the poll-list of district; No. 13, known as Bryce-
ville, who were not residents of that district at the time of the election, but he does
not know for whom they voted. The presumption is that their votes would not have
been received unless they were duly registered, and that they would not have been
registered unless they had been legally qualified voters.

Upon a review of the whole case we are of opinion that the result in
this district should be stated as follows :

Net changes in favor of contestant'in

Votes.

Hamilton County 1*3

Duval County 34

Columbia County 127

Putnam County 15

Orange County 31

Total.. 390

Returned majority for Bullock 3, 195

Net change in his favor in Hamilton County 2

In Duval .. 1

3,198
Deducting 390

Bullock's majority is 2,808

We therefore submit the following resolutions in lieu of those offered
by the majority:

JReaolved, That Frederick S. Goodrich was not elected a Representa-
tive in tbe Fifty -first Congress from tbe Second Congressional district
of Florida, and is not entitled to a seat therein.

Rexolved, That Robert Bullock was duly elected a Representative in
tbe Fifty-first Congress from the Second Congressional district of
Florida, and is entitled to retain the seat he now holds.

LEVI MAISH.
CHARLES F. CRISP.
CHARLES T. O'FKRRALL.
JOSEPH IJ. UUTHWAITE.
L. W. MOORE.
ROBERT P. C. WILSON.

APPENDIX.

WASHINGTON, D. C., April 22, 1890.
The Chairman of the House Committee on Privileges and Elections :

SIR: On the 8th of April, 1890, Hon. F. S. Goodrich submitted to the committee of
which you are chairman, certain correspondence between himself and D. M. Rodeffer
and H. L. Anderson ; also the affidavits of Jesse Reddick and of the said Rodeffer
and the said Anderson, for the purpose of showing that the said Jesse Reddick did
give the testimony purporting to have been given by him and found on page 893 of
the printed record.

In reply to the said correspondence and affidavits, I have the honor to submit here-
with the following affidavits, which have been furnished to me for the use of the com-
mittee :

(1) Affidavit of Jesse Reddick, bearing date April 17, 1890, and also the accompany-
ing affidavit of H. W. Chandler, G. A. Uwelly, and E. Van Hood (marked Exhibit I).

(2) Affidavit of F. E. Pritchett, bearing date April 12, 1890 (marked Exhibit II).

(3) Affidavit of E. M. Gregg, bearing date April 12, 1890 (marked Exhibit III).

(4) Affidavit of D. A. Miller, bearing date April 12, 1890 (marked Exhibit IV).

(5) Affidavit of S. F. Sistrunk, bearing date April 12, 1890 (marked Exhibit V).

(6) Affidavit of Louis Fox, a notary public, bearing date April 12, 1890 (marked
Exhibit VI).

(7) Affidavit of Ben Cody, bearing date April 9, 1890, accompanied by the certifi-
cate of J. R. Wilmer and j. M. Gates (marked Exhibjt VII).

(8) Another affidavit of Ben Cody, bearing date April 11, 1890, accompanied by the
certificate of John C. Graham, E. G. Smith, John H. Welsh, D. E. Eichelberger, and
G. U. Sanssy, and also the certificate of R. E. Davidson and S. S. Burlingame (marked
Exhibit VIII).

(9) Affidavit of S. S. Burlingame, a notary public, bearing date April 12, 1890
(marked Exhibit IX).

(10) Affidavit of Henry W. Chandler, bearing date April 8, 1890 (marked Exhibit X).
I respectfully submit that the affidavits herewith presented require no extended

comment from me. They speak for themselves. All that I ask is that the committee
will give them a fair and impartial consideration. If they will do so, they must in-
evitably reach the conclusion, not only that the deposition purporting to have been
given by Jesse Reddick, as found on page 893 of the record, has been fabricated, but
that a conspiracy has been entered into between H. L. Anderson, the contestant's attor-
ney, and D. M. Rodeffer, the notary public, to perpetrate a wrong upon the contes-
tee in this contest., and upon the people whose representative he claims to be.

Jesse Reddick swears p-'Sitively that the affidavit he made before Louis Fox, a
notary public, in November, 1889, was true; that he had at no time any conversa-
tion with E. M. Gregg, the registration officer of Marion County. It furth r appears
from the affidavit of the said Jesse Reddick that on the 4th day of April, 1890, he
was sent tor to goto the office of the said H. L. Anderson, where the said Anderson
had already prepared a certain affidavit which he wished him to make to the effect
that some time during the registration of electors for Marion County, during the
year 1888, he, the said Reddick, had seen a pistol lying on the table of E. M. Gregg.
That the affiant, knowing that fact to be true, agreed to make such affidavit ; where-
upon the said Anderson informed him that such were the contents of the affidavit
which he had prepared and wished him to sign. That relying upon and believing
the statement of the said Anderson in relation to the contents of the said affidavit,
he signed the same without having it read to him by Anderson, by the notary public,
or by any other person.

The affidavit of F. E. Pritchett shows that no snch conversation ever took place
in his presence with E. M. Gregg, as appears in the pretended testimony of the said
Jesse Reddick, as reported on page 893 of the record, and that he never heard any
conversation of any character whatever between the said Reddick and the said
Gregg.

It appears from the affidavit of E. M. Gregg that he utterly denies ever having

619

620 GOODRICH VS. BULLOCK.

had any such conversation with the said Jesse Reddick or any other person. He in-
dignantly repudiates any such statement as is attributed to him in the pretended
conversation referred to.

D. A. Miller swears that sometime in the year 1889, he heard Jesse Reddick say in
the most positive terms that he never gave any testimony whatever in the contested
election case of Goodrich vs. Bullock, and that he never knew that said testimony
was reported until it was shown to him by the contestee. He further states that
Reddick said that he would give the coutestee an affidavit to that effect. That the
conversation between the coutestee and Reddick took pla.ce in his, the said Miller's
office, in Ocala and at the time his deputy clerk, S. T. Sistmnk, was present ; that
said conversation was conducted pleasantly and agreeably and with no manifestation
of feeling on the part of the contestee; tnat the said testimony was simply read to
Reddick and that he made the statements as hereinbefore giveu in a quick, calm, and
deliberate manner.

S. F. Sistrunk, the deputy clerk, testifies that in the latter part of the year 1889 he
was present at a conversation that took place in the clerk's office between the said
Reddick and the said contestee ; that the said Reddick said most positively and emphat-
ically thathenever gave any testimony whatever in the said contested-election case;
that he never knew or heard of any such testimony as given by himself until it was read
to him by the contestee; and that he would make an affidavit to that effect. This
witness further states that the conversation between the two was in an ordinary
tone, the contestee simply asking Reddick if he had testified in said case and Red-
dick answering that he had not and knew nothing about it at all.

Louis Fox, a notary public, swears that he has known Jesse Reddick for a number
of years ; that on or about the day of November, 1889, the said Reddick ap-
peared before him and made the affidavit attached marked " Louis Fox" in red ink;
that he read the said affidavit over to the sSid Reddick and explained the contents
thereof to him ; that the contestee was not present in the room when the said affidavit
was made ; and that the said Jesse Reddick swore before him, the said Louis Fox, as
notary that the contents of the affidavit were true.

The first affidavit of Ben Cody shows that sometime during the taking of the testi
mony in this contest H. L. Anderson, attorney at law, procured him to testify for the
contestant; that at the instance of the said Anderson he went to Anderson's law office,
where Anderson requested him to hold up his hand to be sworn before him, the said
Anderson; that Anderson and none other administered the oath to him ; that Ander-
son then reduced his testimony to writing; that he is unacquainted with D. M. Ro-
deffer, who reported his testimony as it appears in the record at pages 840, 841 ; that
he has never seen the said Rodeffer to his knowledge, and would not know him if he
should see him.

In his second affidavit Ben Cody reiterates the statement contained in his first affi-
davit and declares it to be absolutely true. He further testifies that on the evening
of the next day after his first affidavit was made, the said Anderson came to him and
complained that he had made an affidavit against him and threatened if he did not
change it at once he would have him put in jail, notwithstanding he had already
stated to him that he had simply sworn to the truth. It appears that this second
affidavit of Ben Cody was read over to him by the notary and fully explained to him
before signing it in the presence of John C. Graham, E. G. Smith, John H. Welsh,
D. E. Eichelberger, G. Saussy, who certify that the affidavit was signed in their pres-
ence and that they know Cody and have known him for several years to be an honest,
truthful, upright, and good citizen. S. S. Burlingame, the notary public, certifies
that John C. Graham and E. G. Smith are both colored men, that Johu H. Welsh is a
white man, all of whom are prominent leading Republicans in the county of Marion;
that they and the others who certify to the good character of Cody are known to him
as good, worthy, and highly respected citizens of that county.

Another affidavit of S. S. Burlingame, notary public, is exhibited, in which it, ap-
pears that on Friday, the fourth day of April, 1890, Jesse Reddick produced to him a
paper writing to be sworn to ; that he asked Reddick if the said paper writing had
been read to him ; whereupon said Reddick answered in the affirmative and said that
Mr. H. L. Anderson had read the same to him ; that believing said Reddick was fully
aware of the contents of said paper, he administered the oath to him and attached
his signature and seal of office ; that he did not read the said affidavit to Reddick ;
did not read it himself and was not aware of its contents ; that the said affidavit was
taken by him in the office of H. L. Anderson, whither he had been called and in the
presence of the said H. L. Anderson and D. M. Rodeffer.

The only other affidavit exhibited is that of Henry W. Chandler, the Republican
candidate for secretary of state and a colored man. This testimony, while not strictly
relevant to the present issue, is offered for the purpose of rebutting the statements in
the correspondence and affidavits filed with the committee by the contestant since
the oral argument, with reference to the methods in office of E. M. Gregg, supervisor
of registration. This testimony shows that prior to the election held on the 6th day

GOODRICH VS. BULLOCK. 621

of November, 1888, the said Henry W. Chandler and David S. Williams, who was a
candidate for the office of county judge, were accorded the courtesies of and had seats
in the office of Mr. Gregg while the voters were being registered.

I have thus called attention, as briefly as possible, to the contents of the affidavits
herewith exhibited, and confidently submit that they are absolutely conclusive and
overwhelming as to the issue which has been raised in regard to the testimony of
Jesse Keddick. They not only prove beyond question that no such testimony was
ever given by Jesse Eeddick, as is reported on page 893 of the record, but they
furthermore show that a system of forgery and deliberate manufacture of testimony
Las been resorted to in this case, which not only merits the emphatic condemnation
of this committee, but of honorable and fair-minded men everywhere.

In conclusion, 1 deem it not inappropriate to invite the attention of the committee
to the marked contrast between the methods adopted by myself and my adversaries
in the procurement of the affidavits of Jesse Reddick. I desire also to place upon
record my emphatic denial of the statement made by H. L. Anderson as to the agree-
ment between us for the taking of testimony in our absence. It is not true that I
entered into any such agreement as is claimed by him. The committee will observe
that his statements as to this matter are contradictory and wholly inconsistent.
Especial attention is invited to the postscript to his letter addressed to Mr. Goodrich,
bearing date April 4, 1890, and his affidavit of the same date. In the one he states as
follows :

"About the question of notice, I always had a notice served on Bullock from day
to day. It was not necessary to give him names of all the witnesses."

In his affidavit he states as follows : "Affiant further says that said contestee in
the beginning waived all formal notice of taking from day to day the testimony in
said cause but agreed that after commencement the taking should proceed without
further notice."

Apologizing to the committee for the length of this communication, and hoping
that they will properly appreciate my motives,
I am, very respectfully,

E. BULLOCK.

No. 1. Affidavit of Jesse Reddicktefore Fox denying testimony as appears in record of con-
test testimony made at request of Bullock.

STATE OF FLORIDA, Marion County :

On this the day of November, A. D., 1889, personally appeared Jesse Reddick,

who, being duly sworn, says that he had read to him from the printed testimony taken
before D. M. Rodeff'er, a notary public, in the contest case of F. S. Goodrich vs. Rob-
ert Bullock, for a seat in Congress, wherein he, the said Jesse Reddick, on page 893,
of said printed testimony purports to have sworn before the said Rodeffer to a con-
versation he had with E. M. Gregg, registration officer for Marion County, Florida,
prior to the election on the 6th of November, 18-8, when the said E. M. Gregg ad-
mitted, among other things, that he was hired by the county commissioners to strike
off Republicans from the registration list, etc., etc.

This deponent solemnly swears that he never at any time had any conversation
with the said registration officer, nor did he ever make any such testimony before the
said Rodeffer as aforesaid, and that he, the said Jesse, is the only person in this com-
munity bearing the name of Jesse Reddick, aud that he has been living in this com-
munity a number of years, and knows there is no other Jesse Reddick living in this
community.

JESSE (his x mark) REDDICK.

Sworn to and subscribed, day and year above written.

[SEAL.] Louis Fox,

Notary Public, Marion County, Fla.

No. 2. Affidavit? of Jesse Reddlok made at request of Anderson denying affidavit made at

request of Bullock.

THE STATE OF FLORIDA, Marion County:

Personally appeared before me Jesse Reddick, who, being duly sworn, says: That
he is the same person who made affidavit in the contest election case of Fred S. Good-
rich vs. R. Bullock, for a seat iu the Fifty-first Congress of the United States, repre-
senting the second Congressional district of Florida, which affidavit is printed on the
record of said contested election case at page 893.

622 GOODRICH VS. BULLOCK.

Affiant further states positively that on the 2f'th day of February, A. D. 1889, he
went to the office of the commissioners appointed to take the testimony in said case
for Marion County, to wit, the office of D. M. Roilelfer, at Ocala, Fla., and then
and there made the statements contained in his said affidavit printed on said pageH93,
and swore to the same before D. M. Rodefier, the commissioner appointed to take
testimony for contestant, Goodrich.

Affiant further says that he does not remember whether the attorneys for the re-
spective parties were present or not, but affiant states that he did make the affidavit
verbatim as the same appears in said record, and affiant further states that the facts
related in said affidavit are true as therein stated, and that the conversation related
therein between affiant and said E. M. Gregg, actually occurred, and that said Gregg
made to affiant the statement in said affidavit contained.

Affiant further says that if he ever signed any paper containing a statement in
denial of said affidavit that he signed same in ignorance of its contents and without
knowing what it contained.

Affiant says that he is a man of limited education and unable to read writing, but
that this affidavit has been read over to him and its contents fully explained before
he signed same.

JESSE (his x mark) REDDICK.

Sworn to and subscribed before me this 4th day of April, 1890.

[SEAI~] S. S. BUKLINGAME,

Ifotary Pullic.

No. 3. Affidavit of Jesse Reddick explaining how Anderson fooled him into making affidavit
denying his affidavit to Bullock denying testimony attributed to him in the record of con-
test testimony.

STATE OF FLORIDA, Marion County :

Personally came Jesse Reddick, who, being duly sworn, says: That he is the iden-
tical Jesse Reddick who made the affidavit before Louis Fox, notary public, in No-
vember, 1889, in which affidavit he stated, amongst other things, that he had heard
read from the printed testimony taken in a case wherein F. S. Goodrich was contest-
ant and Robert Bullock was contestee for a seat in the Fifty -first Congress of the
United States, in which affidavit, before the said Fox, this deponent stated that he
had at no time any conversation with E. M. Gregg, registration officer, and wherein
he further said that he did not make any testimony bef re D. M. Ronefter, a notary
public, taking testimony on the part of said contestant, all of which affidavit made
at said time was true, and he now states the same to be true. Affiant further says
that on Friday, April 4, 1890, one H. L. Anderson, of Ocala, Fla., sent a carriage to
the East Florida Ice Manufacturing Company, where this affiant was at work, with
the request that the affiant should come up town. This affiant, being engaged at the
time, couldnot go in response to the request; that afterwards, later in the afternoon,
said H. L. Anderson came to the ice factory in person and requested this affiant to
come up town, that he wanted him to make an affidavit; that affiant, after working
hours, did go up to the office of said H. L. Anderson, where the said Anderson had
already prepared, before this affiant arrived, a certain affidavit; that he, the said
Anderson, wanted him to swear that some time during the registration of electors
for Marion County for the year 1888 this affiant bad seen a pistol lying on the table
of E. M. Gregg, supervisor of registration. This affiant knowing said fact to be true,
stated that he would make such affidavit, whereupon said H. L. Anderson informed
him that such statement was the contents of the affidavit which he had prepared and
wished him to sign. That this affiant is a colored man and can neither read nor
write and that, rely ing upon and believing the statement of said Anderson in relation
to the contents of said affidavit signed the same. This affiant then appeared before
one, S. S. Burlingame, a notary public, for the purpose of swearing to said affidavit
before said Burlingame; that the said Burlingame asked this affiant if he knew the
contents of this affidavit; that this affiant informed said Bnrlingame that he did, be-
lieving said affidavit to contain only the one fact in relation to saidpistol mentioned
by said Anderson ; that the said Burlingame then requested this affiant to hold up
his band, and asked this affiant if he swore that the contents of this affidavit were
true, whereupon this affiant answered in the affirmative. This affiant further states
that in making this affidavit he intended and believed that he was only swearing to
the one fact in relation to the said pistol. Affiant further states that he has heard
read to him the affidavit which he is informed and believes is the affidavit that he
signed, which affidavit is as follows :

GOODRICH VS. BULLOCK. 623

THE STATE OF FLORIDA, Marion County :

Personally appeared before me Jesse Reddick, who, being duly sworn, says: .That
he is the same prison who made affidavit in the contest election case of Fred 8. Good-
rich ve. R. Bullock for a seat in the Fifty-first Congress of the United States, repre-
senting the second Congressional district of Florida, which afhdavit is printed on
the record of said contested election case, at page No. 893.

Affiant further states positively that on the 2l5th day of February, 1889, he went to
the office of the commissioner appointed to take the testimony in said case for Marion
County, to wit, the office of D. M. Rodefter. at Ocala, Florida, and then and there
made the statement contained in his said affidavit printed on said page No. 893 and
swore to the same before D. M. Rodeft'er, the commissioner appointed to take testi-
mony for the contestant, Goodrich. Affiant further states that he does not remem-
ber whether the attorneys for the respective parties were present or not. and affiant
states that he did make the affidavit verbatim as the same appears in said record
and affiant further states that the facts related in said affidavit are true as therein-
siated: and ihat the conversation related therein between affiant and said E. M.
Greirsr actually occurred, and said Gregg made to affiant the statement in said
affidavit contained.

Attiaut further says that if he ever signed any paper containing a statement in de
nial of said affidavit, that be signed same in ignorance of its contents, and without
knowing what it contained.

Affiant says that he is a man of limited education, and unable to read writing, but
that this affidavit has been read over to him and its contents fully explained before
he signed the same. JESSE (Iiie x mark) REDDICK.

Sworn to and subscribed before me this 4th day of April, 1890.

S. S. BURLIVGAME,

Notary Public.

And this affiant now states that no such affidavit was ever read to him by H. L.
Anderson, S. S. Burlingame, or any other person, and that he had not intended to
make any such statements as are contained in said affidavit. Affiant further states
that he has heard read to him from the printed record in said contest case ou page
893, and again repeats that the same is absolutely and unconditionally false and
fraudulent and that he gave no such testimony, or testimony ot auy character what-
ever before said D. M. Rodeffer or any other person.

Affiant further states that, as to the said conversation which said record reports
that he had with E. M. Gregg, supervisor of registration for Marion County, in the
presence of Mr. Pritchett, it is absolutely untrue, and that he had no such conversa-
tion with said E. M. Gregg a-t said time or any other time.

JESSE (his x mark) REDDICK.

Subscribed and sworn to before me this 17th day of April, 1890.

(.SEAL.] R. A.'BURFORD,

Notary public, State of Florida at large.

STATE OF FLORIDA, Marion County :

Personally came H.W. Chandler, G. A. Dwelley, E. Van Hood, who, being severally
sworn, say that they were each one present and heard the foregoing type-printed
affidavit on three sheets of paper read over to and explained to Jesse Reddick, in our
presence, that he, the said Reddick, knew contents thereof and that it was true, and
that he fully understood the same.

H. W. CHANDLER,

G. A. DWKLLEY,

E. VAN HOOD, M. D.

Sworn and subscribed before me on this April 17th, 1890.

[NOTARY SEAL.] R. A. BURFORD,

Notary Public, State of Florida at large.

I certify that the foregoing affidavit printed with type-writter on three pieces of
paper, was read over to Jess. Reddick by me in the presence of H. W. Chandler, a
leading Republican and candidate for secretary of state on Republican ticket in 1888,
G. A. Dwelley, a well-known Republican, and commander of Post No. 17, Grand Army
of the Republic, and E. Van Hood, before he signed the same and it was explained to
him, and he declares that he fully understands the same, and contains what ne intends
to say.

In testimony whereof I set my hand and official seal at Ocala ou this 17th day of
April, A. D. 1890. Each of said parties are personally known to me.

[SEAL.] R. A. BURFORD,

Notary Public, Stale of Florida at large.

624 GOODRICH VS. BULLOCK.

Affidavit of Louis Fox and copy of affidavit of Jesse Eeddick explaining under what cir-
cumstances he took Reddictf s first affidavit at my instance.

THE STATE OF FLORIDA, County of Marion:

Personally appears Louis Fox, who, being duly sworn, says that he is a citizen of
Ocala for thirteen years; that he has personally known one Jesse Reddick for a num-
ber of years ; that on about day of November, 1889, in the city of Ocala, said

Jesse Reddick appeared before him and subscribed to the following affidavit, which
is hereunto attached, marked "Louis Fox," in red ink, with his notarial seal there-
under, and made part of this affidavit. Affiant further swears that he read the
said affidavit to Jesse Reddick and explained the contents thereof to him, at which
time no other person, that this affiant remembers, was present; that the affiant is
positive that General Robert Bullock was not present in the room when this affidavit
was made, and that the said Jesse Reddick swore before him that the contents to his
affidavit were true ; that to the best of the knowledge and recollection of this affiant
the affidavit hereto attached signed by Jesse Reddick, and sworn to before him, is a
true copy of the affidavit that Jesse Reddick signed and swore to before him on the
day therein mentioned.

Louis Fox.

Sworn to and subscribed before me on this 12th day of April, A. D. 1890.

[SEAT,.] S S. BUKLIXGAME,

Notary Public.

STATE OF FLORIDA, Marion County :

On the day of November, A. D. 1889, personally appeared Jesse Reddick, who,

being duly sworn, says that he had read to him from the printed testimony taken be-
fore D. M. Roddeffer, a notary public in the contest case of F. S. Goodrich vs. Robert
Bullock for a seat in Congress, wherein he, the said Jesse Reddick, on page 893 of said
printed testimony, purports to have sworn before the said Roddeifer to a conversa-
tion he had with E. M. Gregg, registrating officer for Marion County, Fla., prior to
the election on the 6th day of November, 1888, when the said E. M. Gregg admit-
ted, among other things, that he was hired by the county commissioners to strike off
Republicans from the registration list, etc. This deponent solemnly swears that he
never at any time had any conversation with the said registration officer, nor did he
ever make any such testimony before the said Roddefier as aforesaid, and that he,
the said Jesse, is the only person in the community bearing the name of Jesse Red-
dick, and that he has been living in this community a number of years and knows
there is no other Jesse Reddick living in this community.

JESSE (his x mark) REDDICK.

Sworn and subscribed to day and year above written.

[SEAL.] Louis Fox,

Notary Public, Marion County, Fla.

Affidavit of S. T. Sistrunk, showing how I approached Seddich about his testimony in

printed testimony contest.

STATE OF FLORIDA, Marion County:

Personally came S. T. Sistrunk, who, being sworn, says that he is and has been
deputy clerk of the circuit court for Marion County, Fla., for about three years
continuously last past. That he is personally acquainted with one Jesse Reddick, a
colored man. That some time during the year 1889, in the latter part of it, that he
was present at a conversation between the said Reddick and General R. Bullock that
took place iu said clerk's office: that said Reddick most positively and emphatically
said that he never gave any testimony whatever in the contested-election case
wherein F. S. Goodrich was contestant and Robert Bullock contestee. The said
Reddick stated at the same time that he never knew nor heard of any testimony
given by himself until it was shown or read to him by General Bullock, and stated that
he would make an affidavit to General Bullock stating that he had never testified before
D. M. Rodiffrr in said contest case. That the said conversation was in ordinary con-
versational tone and manner. General Bullock simply asking Jesse Reddick if he had
testified in said case, and Reddick answering that he had not, and knew nothing
about it at all. General Bullock read the testimony to Reddick, and after hearing it
Reddick denied ever hearing or having testified to any such thing.

S. T. SISTRUNK.

Sworn and subsciibed before me on this the liith day of April, A. D. 1890.

[SEAL.] RICHARD MCCONATHY,

County Judge.

GOODRICH VS. BULLOCK. 625

Affidavit of E, M. Gregg as to testimony of Reddick in the printed contest testimony.
STATE OF FLORIDA, Marion County :

Personally came E. M. Gregg, who, being sworn, says: That during the year 1888
he was the supervisor of registration of electors for Marion County, Fla. ; that
his office was in the southwest corner room of the court-house in Ocala. That said
room is a small room of the dimensions of ten by twelve feet ; that in said room is a
large iron safe, a flat top desk, an ordinary tahle of three by six feet, some small file
cases, etc,; that affiant is also deputy clerk of the board of county commissioners;
that said office is entirely too small to comfortably accommodate the incumbent of the
office ; that there is no private railing in any portion of the office, but the whole an
open room, in which the officer, visitors, and those on business, and loafers are all
promiscuously mixed. Affiant further states that the registration books of Marion
County, Fla., consist of fifty-six small books, and during the registration of elec-
tors of Marion County, Fla., for the year 1888 it was very difficult to prevent
persons in the office from handling and marking the books. Being so many
amall books, it was difficult for this affiant to furnish information to those inquiring
and take care of the other books ; that when affiant would put down one book, some
restless, impatient persons who could not wait their turn would be pulling at the books
to get his information for himself, and a half dozen making different requests at the
same time.

That affiant discharged the duties of said office honestly, faithfully, and justly, seek-
ing and obtaining the best opinion of lawyers, whether Republican or Democrat, as
to my duties under the law, and then pursued them to the very utmost of my capacity
and ability.

Affiant further states that he extended the courtesies of the office as much to one
party as another ; that if. would have been utterly impossible for this affiant, or any
other person, to proclaim an invitation to the public to come into the office and for
him to have transacted any business whatever ; that the privileges of the office were
extended to Mr. Henry W. Chandler, a colored man and a candidate on the Republi-
can ticket for the office of secretary of state, as a representative of the colored peo-
ple and the Republican party of the State, and Mr. D. S. Williams, who is a white
man and was a candidate for the office of judge of the county court for Marion County,
Fla., on the Republican ticket, and to others without regard to party to the full ex-
tent that it was possible for me to do and attend to the duties of the office.

Affiant states that he has read from the printed record of the testimony in the con-
tested-election case of Hon. F. S. Goodrich vs. Hon. R. Bullock, on page 893, what
purports to be the testimony of one Jesse Reddick, before D. M. Rodifl'er, in which
said Reddick testifies to a conversation that he"had with this affiant. This affiant,
in the most positive, emphatic, absolute, and direct manner, denies the same to be
absolutely and wholly untrue ; that no such conversation was ever had between
this affiant and Jesse Reddick, or any other person ; nor any conversation of any
such character whatsoever with any person whomsoever. Affiant further states that
not only does he deny the conversation, or any other such conversation at any time,
but most positively denies the existence of the facts stated in said conversation,
and says that such statement is the conception of a villanous, dishonest, lying mind,
and the production of a corrupt, depraved, unscrupulous, and wicked heart.

E. M. GREGG,

Sworn to and subscribed to before me this 12th day of April, 1890.
[SEAL.] S. S. BURLINGAME,

Notary Public.

Affidavit of Sen Cody as to how Anderson personated the officer, having no authority him-
self, and administered an oath to Cody, a colored man.

THE STATE OF FLORIDA, County of Marion :

Before me personally came Ben Cody, who, being by me duly sworn, says: That he
knows of no other Ben Cody in said county ; that he has resided in said county for
about six years; that some time during the taking of testimony in the contested elec-
tion case wherein F. S. Goodrich was contestant and Robert Bullock was contestee for
a seat in the Fifty-first Congress of the United States, H. L. Anderson, esq., attorney-
at-law, procured this affiant to testify on the part of the contestant ; that this affiant
at the instance of the said Anderson went to the law office of the said Anderson where
said Anderson requested this affiant to hold np his hand to be sworn, before him the
said Anderson, and he the said Anderson, and none other, administered the oath to him
this affiant ; that said Anderson then reduced to writing the evidence of this affiant ;
that there were no other persons present during the whole time this affiant was in the
office of the said Anderson except this affiant, H. L, Anderson, and an old colored
man with whom this affiant is unacquainted ; aud this affiant states that he is unac-
quainted with D. M. Roddeffer, the ngtary public, who reported the testimony of this

626 GOODRICH VS. BULLOCK.

affiant as the same appears in the record of said testimony on pages 840 and 841 ; that
should this affiant fee the said Roddeffer now he would not know him ; that he has
never seen the said Roddeffer that he knows of.

BEN CODY.

Sworn to and subscribed to in my presence by the said Beu Cody, and I certify tlmt
I have heard read the above affidavit over to him and he says hie fully uudeioUu^i
the same, this April 9th, 1890.
[SEAL.] Louis Fox,

Notary Public.

We certify that the above affidavit was read over to Ben Cody in our presence and
he acknowledged to us that he fully understands the same, to which we swear to be
true.

J. R. WILMER.
J. M. GATES.

Sworn to before me this April 9th, 1890.
[SEAL.] Louis Fox,

Notary Public.

Affidavit of Ben Cody as to how Anderson, by threats, tried to make him, Cody, change his
affidavit as to Anderson's personating an officer.

STATE OF FLORIDA, Marion County:

Personally came Ben Cody, who, being sworn, says: That he is a colored man,
and politically a Republican ; that on the 9th day of April, 1890, in the city of
Ocala, and in the county of Marion, he made an affidavit before Louis Fox, as no-
tary public, in which affidavit I stated substantially that when I appeared as a wit-
ness in the Congressional contest in a case wherein F. S. Goodrich was contestant and
Robert Bullock contestee for a seat in the Fifty-first Congress of the United States;
that one Mr. H. L. Anderson, of Ocala, on the occasion of my testifying administered
the oath, and wrote down my testimony, and that no one was present except this
affiant, H. L. Anderson, and one old colored man, whose name I do not know, and
that I was unacquainted with one D. M. Rodeffer, had never seen him, and would
not know him if I was to see him. I again repeat the truthfulness of said statements
contained in said affidavit as being absolutely true. This affiant further states that
on the evening of the next day after said affidavit was made, the same H. L. Ander-
son came to this affiant and inquired of this affiant if he had made such an affidavit,
whereupon affiant informed him that he had. Anderson then said: "Beu, why did
you make this affidavit against mo ?" Affiant then stated to said Anderson, "that
I did not make it against you, but simply swore to the truth." Whereupon said An-
derson told affiant, "Ben, you go and change that affidavit; if you do not I will be
damned if I don't have you put in jail, so go on now at ouce and do it."

BEN CODY.

Sworn and subscribed before me on this the llth day of April, 1890.

[SEAL.] S. S. BURLINGAME,

Notary Public.

Witness to signature of Ben Cody:
JNO. C. GRAHAM.
R. E. DAVIDSON.

I, S. S. Burlingame, notary public, do certify that the foregoing affidavit of Ben
Cody was read over to him in the presence of John E. Graham and R. E. Davidson,
and by me explained to him before signing, and that he signed the same in this pres-
ence and swore to me before said parties that the contents thereof was true.

In testimony whereof I have hereunto set my hand and official seal at Ocala on this
the llth day of April, 1890.

[SKAL.] S. S. BURLIXGAME,

Notary Public.

We, John C. Graham, E. G. Smith, John H. Welsh, D: G. Eichelberger, and G. N.
Saussy, certify that we are, each one of us, personally acquainted with Ben Cody, a
colored man, who signed the foregoing affidavit, and state we have known him for
several years and know him to be an honest, truthful, upright, and good citizen.

JOHN C. GRAHAM.
E. G. SMITH,
JOHN H. WELSH.

D. G. ElCHELBEKGER.

G. N. SAUSSY.

Signed in the presence of us as witnesses.
R. E. DAVIDSON.
S. S. BURLINGAME,

GOODRICH VS. BULLOCK. 627

Personally came R. E. Davidson and S~ S. BuiTmgaine, who being sworn, say thoy
saw John C. Graham, E. G. Smith, John H. Welsh, D. G. Eichelberger, -ami G. N.
Saiussy sign the above certificate of character of Ben Cody, and we witnessed their
signatures.

R. E. DAVIDSON.

S. S. BURLINGAME.

Sworn to and subscribed before me this llth day of April, 1890.

[SEAL.] Louis Fox,

Notary Public.
STATE OF FLORIDA, Marion County :

I, S. S. Burlingame, a notary public for Marion County, do certify that the above-
named John C. Graham and E. G. Smith are both colored men, and John H. Welsh is a
white man, all of whom arc prominent leading Republicans in this county ; that D. G.
Eichelberger and G. N. Saussy are white men and Democrats in this county ; that
all of said persons are personally known to the undersigned, and all of them are
good, worthy, and highly-respected citizens of the county ; that during the reading
of the foregoing affidavits in the front of the store that fronts the public square of
the city of Ocala these gentlemen, E. G. Smith, John C. Graham, and John H. Welsh,
were called to witness the reading and signing thereof.

In testimony whereof I set my hand and official seal at Ocala, on this the llth
day of April, A. D. 1890.

[SEAL.] S. S. BURLINGAME,

Notary Public.

Affidavit of T. E. Pritchett.

STATE OF FLORIDA, County of Marion :

Personally came T. E. Pritchett, who, being duly sworn, says that during a part of
the time for the registration of electors in Marion County, Fla., for the year 1888,
ho was in the office of E. M. Gregg, supervisor of registration for Marion County,
Fla., as his deputy. Affiant further states that he is not acquainted with one
Jesse Reddick. Affiant states that he has read the testimony of said Jesse Reddick
as the same appears on page 893 of the record in the contested-election case of F. S.
Goodrich against R. Bullock. Aftiaut further states that the conversation as reported
in said record as given by Jesse Reddick never took place at any time in the office of
the superv isor of registration or anywhere else, to his knowledge, between E. M. Gregg
and said Reddick within the hearing of this affiant that he never heard said conver-
sation or any other conversation of any character whatsoever between said Reddick
and Gregg. Affiant states that on the 22d day of September, 1888, he left the said
registration office and during the month of October, 1888, and at least a month before
the election of November 6, 1888, he left the city of Ocala in said Marion County
and went on the Ocklawaha River, where he resided continuously ever since and did
not return to the said city of Ocala until the month of February, 1890

T. E. PRITCHETT.

Sworn to and subscribed before me this 12th day of April, A. D. 1890.
[SEAL.] S. S. BURLINGAME,

Notary Public.

Affidavit of D. A. Miller.

STATE OF FLORIDA, Marion County:

Before me, tha undersigned authority, personally came Dan A. Miller, who, being
duly sworn, says upon oath : That he is clerk of the circuit court in and for the
county of Marion ; that he is personally acquainted with one Jesse Reddick ; that

some time during , 1889, he heard Jesse Reddick say in the most positive terms

that he never gave any testimony whatever in the contested-election case of F. S.
Goodrich, contestant, against Robert Bullock, contestee; that he never knew that
said testimony was reported until it was shown to him by General Bullock. And
affiant further states that he heard the said Jesse Reddick say that he would, and in-
tended to give General Bullock an affidavit denying ever having given such .testi-
mony as was reported by D. M. Rodeffer. Affiant further states that said conversa-
tion between General Bullock and Jesse Reddick took place in his office in Ocala, and

628 GOODRICH VS. BULLOCK.

at the time thereof there was present his deputy clerk, S. T* Sistrunk; that said, con-
versation was conducted pleasantly and agreeably, and with no manifestation of feel-
ing on the part of General Bullock ; that said testimony was simply read to Reddick,
and he made the statements, as hereinbefore stated, in a quiet, calm, and deliberate
manner.

D. A. MILLER.

Sworn to and subscribed before me this 12th day of April, 1890.

[SEAL.] RICHARD MCCONATHY,

County Jtidf/e.

Affidavit of Henry W. Chandler, colored man and candidate for slate secretary, corroborat-
ing Gregg, registration officer.

STATE OF FLORIDA, County of Marion :

Before me personally came Henry W. Chandler, who, being by me duly sworn, says
upon his oath that he was the Republican candidate for secretary of state of the
State of Florida, in the election held on the 6th day of November, 1888, at which
election a Representative to the Fifty-first Congress of the United States was voted
for. That prior to said election he and David S. Williams, who was a candidate for
the office of county judge of said county at said election, were accorded the courtesies
of and had seats in the office of the supervisor of registration for said county while
voters were being registered.

HENRY \V. CHANDLER.

Sworn to before me this the 8th day of April, 1890, and in my presence subscribed
to by the above-named Henry W. Chandler.
LSKAL.] Louis Fox,

Notary Public.

Affidavit of Sol Benjamin, snowing the conduct of Anderson and Eodiffer in going together
to get the colored man Eeddick to fool him into making a false affidavit. Contrast this
with my method.

STATE OF FLORIDA, Marion County:

Personally came Sol Benjamin, who, being sworn, says that on Friday even-
ing, April 4, 1890, late in the evening, a carriage came down to the East Florida Ice
Manufacturing Company's building, of which company affiant is the president, and
the driver announced that Mr. H. L. Anderson had sent him for Jesse Reddick, a col-
ored man, in the employ of said company ; that affiant sent Mr. Anderson word that
Reddick was at work and could not leave then. Later, on the same evening, Mr. H.
L. Anderson and D. M. Rodiffer came in person, and after making some little apology
to affiant for not requesting him to allow said Reddick to leave, Mr. Anderson then
had some private interview with Jesse Reddick ; that next morning affiant asked
said Reddick what Mr. Anderson wanted with him ; that said Reddick replied he
wanted him to sign an affidavit about him (Reddick) seeing a pistol lying on the
table of the supervisor of registration for Marion County, and that he signed it, and
that was all of the contents of said affidavit ; that said Reddick has repeatedly made
same statement in the presence of many persons, and continues up to this time to
make the same statement.

Affiant states that at one time, to wit, April 5, 1890, when Reddick made the state-
ment as to contents of the affidavit he made for H. L. Anderson, on April 4, 1890,
before S. S. Burlingame, there was present Mr. R. B. Bullock, secretary of the With-
lacoochie Phosphate Company ; W. A. Smith, engineer at the East Florida Ice Man-
ufacturing Company, and this affiant; and he has made the same statement on a great
many other occasions, in the presence of different persons, both white and colored.

SOL BENJAMIN.
W. A. SMITH.

Sworn to and subscribed before me on this 17th day of April, A. D. 1890.
|;SEAL.] WM. Fox,

Public,

GOODRICH VS. BULLOCK. 629

Personally came R. B. Bullock and W. A. Smith, persons mentioned in above affi-
davit, and all of them to me personally known, who, being each duly sworn, say they
have read said affidavit of Sol Benjamin, and say that so much thereof as states that
they were present and heard Jesse Reddick state the contents of the affidavit made
by him on April 4, 1890, before S. S. Bnrliugame, is true, and they each swear they
were present and heard same statement of said Jesse Reddick, and the same was made
as set forth in said affidavit.

R. B. BULLOCK.

Sworn to and subscribed before me on this April 17th, 1890.

[SEAL.] WM. Fox,

Notary Public State of Florida.

Affidavit of S. S. Burlingame, showing that he only administered the oath taken by Reddick,
loithout reading the same to him, as he said it had been read to him by Anderson and only
related to a pistol.

STATE OF FLORIDA, Marion. County:

Personally came S. S. Burlingame, who, being duly sworn, says that he is a citizen
of Ocala, Marion County, Fla., and the clerk of the city of Ocala, notary public, and
also a clerk in the dry goods and clothing store of Benjamin & Fox; that he is a
northern man by birth; that he has resided in Ocala since May, A. D. 1880; that on
Friday, April 4, 1890, one Jesse Reddick, a negro man, who is well known to affiant,
and who is in the employ of the East Florida Ice Manufacturing Company, did, be-
tween the hours of 6 and 7 o'clock p. m. on said day, produce to him a paper- writing,
to be sworn to oy said Reddick before the affiant; that affiant asked said Jesse Red-
dick if said paper-writing had been read to him ; whereupon said Reddick answered
in the affirmative, and said that Mr. H. L. Anderson had read the same to him; that
this affiant, believing that said Reddick was fully aware of the contents of said paper-
writing, asked said Reddick if he did swear that the contents thereof were true,
whereupon said Reddick said that he did ; and that this affiant then administered the
oath to him on the faith of this statement, and attached his signature and seal of
office thereto ; that this affiant dirt not read said affidavit to Reddick, nor did he
read it himself, nor was he, this affiant, aware of the contents of said paper-writing,
signed by said Reddick on April 4, 1890; that the said affidavit of said Reddick was
taken by me in the office of H. L. Anderson, whither I was called by him for that
purpose, and in the presence of H. L. Anderson and D. M. Roddeffer. And affiant
further states that said paper-writing was not read in his presence by any other per-
son, and that he does not know the contents thereof.

S. S. BURLINGAME.

Sworn to and subscribed before me on this 12th day of April, A. D. 1890.
[SEAL.] Louis Fox,

Notary Public.

JAMES H. McGINNIS vs. JOHN D. ALDERSOK

THIRD WEST VIRGINIA.

The governor of West Virginia declared the result and issued the
certificate to Alderson on the basis of the returns from all the counties
except Kanawha, omitting the latter return on account of legal
proceedings in which it had become involved. McGinnis claimed to
be entitled to the certificate in the first instance, he being elected on
the face of the returns including that from Kanawha County, and
also to be elected if all illegal votes cast on both sides be deducted.
Alderson claimed that the return from Kanawha County was properly
omitted by the governor; that if said return were correctly made out,
including the results of recounts legally had, it would show that he
was elected on the face of all the returns, and that his returned major-
ity would be still further increased by deducting from both sides the
illegal votes cast for them respectively. The committee in general sus-
tain the claims of McGinnis, as above stated, the minority those of
Alderson. The case was never reached by the House.

(1) Certificate of election. Force of.

11 A certificate of election showing upon its face that nearly 8,000 votes
were wholly ignored in the count can have no binding force and effect
in a contest of this character. ***** When his title is
assailed in a direct proceeding by way of a contest, we think that a
certificate showing the above facts gives the contestee no superior
standing over the contestant as to burden of proof. For the purposes
of the contest a certificate which, on its face, shows that a large vote was
wholly ignored, and giving no data from which the true results could
be ascertained, ought not to be considered as binding upon anybody."

(2) Burden of proof. When contestant elected -on face of returns.

When it is shown that the contestant was elected on the face of the
returns, the burden is cast upon the contestee to overcome the prima
facie right which the returns give to the contestant.

(3) Recount.

In order to justify a recount it ought to appear that the statutory
requirements have been complied with, " or clearly shown that the fail-
ure to comply therewith has resulted in no injury. If proper care is
not taken to so preserve the ballots that they may not be changed they

631

632 M'GINNIS vs. ALDERSON.

will always be the subject of a natural suspicion, and when a material
difference appears between the original count and the recount the
weight to be given to the recount must depend wholly upon the meth-
ods used in preserving the ballots free from suspicion or opportunity
to do wrong. In a conflict between the first and second count it is
evident that the one or the other does not show the true result.

If every opportunity to change the ballots has been prevented, and
if the law in relation to a recount has been complied with, the recount
becomes entitled to the greater credit and should prevail. But if, on
the other hand, the ballots have been so kept that they may be readily
changed, our observation upon this committee would hardly justify us
in indulging in the conclusion presumptive that no one had been found
wicked enough to make the change."

JULY 23, 1890. Mr. LACEY, from the Committee on Elections, submit-
ted the folio wiug report:

As in the case of Smith v. Jackson from West Virginia, decided by
this committee and their findings approved in the present Congress, the
first important question to determine is as to whether the contestee or
contestant was entitled to the certificate of election.

THE PRIMA FACIE CASE.

In the present case the returns certified to the governor in due form
of law as to all the counties except Kanawha are as follows :

Third Congressional district.

Counties.

John D.
Alderson.

James H.
McGiunis.

C. W.

Honson.

W.D.
San lord.

Frank
Burt.

J. H.

Biggins.

1,508

416

500

565

McDowell -

409

583

1 371

1 406

Raleigh

888

842

742

C>12

Kanawha

Fayette

1 854

2 685

150

Clay

415

463

Nicholas

1,101

690

Greenbrier

2,072

1,394

Monroe

1,324

1,225

Su miners

1,356

1.277

Webster

666

276

Pocahontaa

898

580

Upuhur ....

810

1,717

Total

15 944

14,631

110

174

The foregoing statement is copied from the executive order of the
governor of West Virginia, and it will be observed that he treats the
county of Kanawha as a blank.

The reason for thus ignoring the county of Kanawha is set out in the
executive order of his excellency, the governor, in the following lan-
guage :

EXECUTIVE DEPARTMENT, February 23, 1889.

The governor having received from the commissioners of the county courts of the
several counties of the Third and Fourth Congressional districts of the State of West
Virginia, excepting the county of Kanawha, certificates of the result of the vote cast
at the election held on the Tuesday next after the first Monday in November, 1888, for
Representative in the Congress of the United States, and it being apparent, for the
reasons hereinafter stated, that the returns from Kanawha County can not now be

633

634 M'GINNIS vs. ALDERSON.

made before the beginning of the Congressional term on March 4, 1889, this day pro-
ceeded to ascertain and declare the result of said election in said Congressional dis-
tricts.

The county commissioners declared the result of the election in Kanawha County
J)ecetnber 15, 1888. The certificate was mailed in this city on the 17th of said month,
and received in this office late in the afternoon.

On the same day a writ of certiorari was awarded by the circuit court of Kanawha
County on the petition of John D. Aldersou, who claimed to be elected to said office,
against the said commissioners, and against James H. I 'icGinnis, who also claimed to
be elected to said office. The order awarding the certiorari provided for a superseded*
to the judgment and decision of said commissioners upon the execution of bond, as
required by statute. The bond was forthwith executed, and said judgment and decis-
ion suspended. A certified copy of the record in the certiorari proceedings shows
that said commissioners, in declaring the result of the election in said county, ex-
cluded from the recount, had, under the statute, on the demand of said Aldersou, a
sufficient number of ballots in his favor to have secured his election to said office.

I have time and again personally urged counsel on both sides of this controversy to
insist upon a prompt decision by the circuit court, in order that a final conclusion
might be reached before the 4th of March next, the beginning of the Congressional
term. I can see no reason why it should not have been done. The circuit court
aforesaid on the 23d inst. entered judgment reversing the entire proceedings and find-
ing of said commissioners, and remanding the cause. Upon inquiry, I find that no
steps have yet been taken for the reassembling of said commissioners to ascertain the
election result, and it is evident that such result can not now be ascertained before
the beginning of the Congressional term.

Therefore, I believe it to be my duty to certify an election on the returns now in this
office.

E. W. WILSON.

By the governor :

HENRY S. WALKER,

Secretary of State.

It thus appears affirmatively from the record before the committee
that because of the legal proceedings referred to above the governor
certified the " election on the returns now in this office " on the 28th of
February, 1889, although the governor had ineffectually urged "both
sides 1 ' to secure a prompt decision from the courts.

The fact that the contestee, Mr. Alderson, had attempted to super-
sede the returns by the legal proceedings gave him no right to have
the certificate, based upon a count of the district, omitting the most
important county therein. The county of Kauawha cast a vote larger
than the average of three of the other counties in the district. That
county cast an undisputed majority of ove"r 1,300 in favor of the con-
testant.

A certificate of election showing upon its face that nearly 8,000 votes
were wholly ignored in the count can have no binding force and effect
in a contest of this character. It is true that it has been sufficient to
entitle the coutestee to sit in the House, to take part in its organization,
and to perform all the duties of a member of Congress whether elected
or not. But when his title is assailed in a direct proceeding by way of
a contest, we think that a certificate showing the above facts gives the
contestee no superior standing over the contestant as to burden of
proof. For the purposes of the contest a certificate which, on its face,
shows that a large vote for the contestee was wholly ignored, and giv-
ing no data from which the true results could be ascertained, ought not
to be considered as binding upon anybody.

As the governor did not decide the result and issue the certificate
upon the returns from the whole district, the first duty devolving upon
the committee was to take the returns and make a statement of the
same.

M'GINNIS vs. ALDEESON. 635

The corrected returns, so far as certified by the governor, showed the
following result :

ForAlderson 15,944

ForMcGinnis 14,631

Plurality for Alderson 1,313

Returns from Kanawha County :

ForMcGinnis 4,658

For Alderson , 3, 3-29

Majority in Kanawha County for McGinn is 1, 329

The original returns gave McGinnis 1,344 majority in this county (2d
Kec., 108), but this excluded Coalburgh which we will show should not be
excluded.

The net majority for McGinnis in the district is 16.

Upon the face of the returns, McGinnis was entitled to the certificate
by a majority of 16.

In the county of Boone there was an error in the footing or else an
accidental transposition of figures.

The figures certified to the governor for contestant were 512 instead of
521, making a difference of 9 votes. Three witnesses show that this error
occurred (Sec., 34, 35). Leftwich, McNeeley, and Smoot all testify as to
the error. Their evidence is confirmed by the tally-sheet, page 36.

No attempt is made to contradict this tally-sheet or the evidence of
these witnesses. We do not think that a clerical error of this charac-
ter ought to stand uncorrected where *t is practically undisputed. It
is claimed that the evidence showing this fact should not be considered
because the notice to take depositions did not give the names of the
witnesses. But J. B. Hayger appeared as attorney for Mr. Alderson at
the taking of this evidence; and besides, no objection was made to the
printing of this evidence at the time that it was opened by the clerk.
(Lowry v. White, 50th Cong., and Featherstone v. Cate, 51st Cong.) By
correcting this clerical error in the returns it appears that contestant
was elected by a plurality of 25 over the contestee on the face of the
returns. If these returns remain unimpeached the tables are turned
and the burden is cast upon the contestee to overcome the prima
facie right which the returns give to the contestant.

To meet this question the contestee asserts that under the laws of
West Virginia he was entitled to a recount of the ballots, and that upon
such recount in Kanawha County this result was changed and that the
contestee gained 12 votes and the contestant lost 20, making a change
of 32 votes, which would give him a majority of 7 upon the basis above
set out.

THE RECOUNT.

The recount in Kanawha County showed a change of 9 votes in Alum
Creek precinct, and 25 votes in Charleston precinct.

In the West Virginia election cases in the present Congress, and in
the famous case in the gubernatorial contest between Fleming and
Goff, we have had striking illustrations of the dangers of a recount of
the ballots, where a change of a few tickets may affect the result. The
law of West Virginia, whilst it provides for such recount, attempts to
throw around the recount such elements of safety as will prevent a
fraudulent change of the ballots. Such recount is always viewed with
suspicion and is full of danger.

636 M'GINNIS vs. ALDERSON.

The law of West Virginia is as follows :

They shall, upon the demand of any candidate voted for at each election, open and
examine any oue or more of the sealed packages of ballots and recount the same, hut
in such case they shall seal up the same again, along with the original envelope, in
another envelope, and the clerk of the county court shall write his name across the
place or places where it is sealed, and indorse on the outside : Ballots of the election
held at , the district of and county of , etc.

The law also provides that the original packages shall be sealed up
at the place of voting, as follows :

When the said certificates are signed, the ballots shall be inclosed by the commis-
sioners in an envelope, which they shall seal up, and write their names across the
place or places where it is sealed, and indorse on the outside of the said envelope as

follows : " Ballots of the election held at , in the district of , and county

of , the day of ," etc.

In order to justify a recount it ought to appear that these require-
ments have been complied with, or clearly shown that the failure to
comply therewith has resulted in no injury. We are constrained to
find that in the present case there was not that care of the ballots con-
templated by this statute, nor such care of the same as would justify
us in overturning the count made at the time by the judges of the
election.

The ballots of Alum Creek precinct were put in a paper package
and the package placed in a bag and carried to the court-house where
the bag was thrown up over a storm-door at the clerk's office.

When the recount was commenced this package was found broken
open, or else it had never been sealed.

J. A. Jones, witness for contestee, says that when the ballots were
laid before the court for recount the Alum Creek package was un-
sealed, and it had the appearance of not having been sealed at any
time, though it showed that an effort had been made to seal it. (Rec.,
159.)

From Thursday after the election until the following Monday this
package was lying unsealed in a bag on top of the storm door. It had
been sealed with mucilage, which did not stick. (Rec., 193.) About
half the returns came in wholly unsealed, with a string tied around them.
(Rec., 192.)

Goshorn and Quarrier show clearly that the law was not complied
with by sealing up the returns.

This is not a mere unimportant requirement. The sealing up and
proper care of the ballots is an essential requisite to an honest and cor-
rect recount of the ballots.

If proper care is not taken to so preserve the ballots that they may
not be changed they will always be the subject of a natural suspicion,
and when a material difference appears between the original count and
the recount the weight to be given to the recount must depend wholly
upon the methods used in preserving the ballots iree from suspicion or
opportunity to do wrong. In a conflict between the first and second
count it is evident that the one or the other does not show the true
result.

If every opportunity to change the ballots has been prevented, and
if the law in relation to a recount has been complied with, the recount
becomes entitled to the greater credit and should prevail. But if, on
the other hand, the ballots have been so kept that they may be readily
changed, our observation upon this committee would hardly justify us
in indulging in the conclusion presumptive that no oue had been found
wicked enough to make the change.

Where party spirit runs high, and a Congressional election depends

M'GINNIS vs. ALDERSON. 637

upon the substitution of a few votes, and opportunity for the change is
afforded, and the recount of two precincts like Alum Creek and Court-
House show an error of 32, we must give the greater credit to the first
count.

At Alum Creek 3 votes more for Alderson were found on the recount
and 6 votes were counted for McGinuis less than the judges of the pre-
cinct counted for him. Such an error in a vote of 194 is very improba-
ble. In Court-House precinct Alderson gained 12 and McGinnis lost
13. McGinnis has taken testimony to show specifically 143 votes for
him instead of the 138 shown by the recount, thus showing the recount
to be wrong. This evidence shows clearly that the recount was erro-
neous. But aside irom all questions of probability or improbability, we
think the only safe rule of law in relation to a recount of the ballots is
to require that the ballots should be preserved in the manner pointed
out b;y law, or clearly shown not to have been tampered with, in order
to render a recount of any validity. The same statute which provides
for a recount also provides a method to make such recount worthy of
credit.

The ballots at Charleston were placed in a cracker-box, and nailed up,
sealed, and indorsed. The box showed chisel marks in the bottom
where it had been opened. (Eec. 76). The change of 25 votes in the
count in tLis box can be accounted for in two ways. The first count was
inaccurate, or the ballots were changed. The county commissioners
were notified that there was something wrong about the recount, and re-
fused to certify it, and legal proceedings were instituted to compel them
to adopt the recount, which they declined to do, and while these pro-
ceedings were pending the executive cut the Gordiau knot by leaving
Kanawha out of the count altogether, and thus giving to the contestee
a majority of over 1,300 votes. One Montague was in charge of the
clerk's office a part of the time. Mr. Montague was an intemperate
man and had been on a spree. He got ten cents of the deputy clerk to
get some whisky with to steady his nerves while he made some copies
of some papers.

One Forsythe testifies to seeing Montague apparently tampering
with the ballots. (Rec. 67.) Forsythe's character and evidence are
bitterly assailed, and it is claimed that he could not have seen Monta-
gue on the date at which he claims to have seen him in the clerk's
office, but it clearly appears, at least, that Montague had ample oppor-
tunity to change the ballots. Montague's character and habits are
shown by one of contestee's witnesses, Mr. Quarrier. (Kec. 208.):

Q. 17. Please state what part of the week on which the election was held was the
said Montague employed in or about said office f

A. He worked on Monday and Tuesday the day of the election, and came back
to the office on Saturday evening at about 3 o'clock and asked for his two days'
pay. I told him that I would not pay him unless he went to work to make a copy
of a deed for Wm. S. Ed wards, who desired the same to be copied by nine o'clock
that night in order th;if he might proceed to New York City to raise money for the
Paint Creek Railroad Company. Montague said that he was in no condition to
make the copy, and asked uie to send for Mr. A. P. Fry to make the same. I told
him that if he did not make the copy I would not pay him for the two days' work ;
he was at the time very tremulous, having been on a spree. It was a very long
deed, the copy of which the fee amounted to four dollars. He began working in
a few minutes in the back room ; after working some half hour he came to the front
room, and said it was impossible for him to proceed with the work on account of
his nervousness, and asked me to get some one else to do the work ; I replied that
if you do not make that copy I will not pay you a cent, and gave him ten cents to
go and get a drink of whisky with ; he then returned and went to work .again. I
staid in the office until about dark, locked the front door, and left Montague there-
in. I fixed the shutters on the front side of the office so that any person could look
in the office wiiere he was working, with instructions to ftim to allow o one to com*

638

M GINNIS VS. ALHEESON.

into the office except the said Wm. S. Edwards, who said to me that he would be
down to the office about dark to get his copy. 1 went to supper and returned in
about 40 minutes, and saw the shutter ajar as I b-iJ left it, and invited John T. Dud-
diug to go in the office with me. Montague showed me the amount of work he did
since I left, and requested that I would girehiiu money to get his supper, and said
that Edwards bad not been to the office. I jjave him ten cents to get a drink with ;
he finished the copy about half past eight o'clock j I then locked up the office and
went home.

Forsythe and other Republicans ware engaged in watching the clerk's
office, fearing that the ballots might be tampered with, and the date at
which the occurrence was seen may have been misstated. At any rate, a
drunken penitentiary convict was uot a proper person to put in control
of such documents under the circumstances. (Rec., 458.)

Mr. Goshorn, the county clerk, testifies that Montague had served a
term in the penitentiary and tha* tie was a Democrat (Rec., 198). Mr.
Goshorn says that Montague was an intemperate man but reliable.
Montague's antecedents and ka.Vuts caused him to be the natural object
of suspicion.

Montague is now dead, and was not a witness in the case.

The cracker-box showed thucnisel marks where it was opened at the
bottom. Whether the suspicions naturally attaching to Montague were
well founded or not, it is very probable that the box was opened. A
board was taken off the bottom and again nailed up. Sealing up the
top lid of the box was no m-otection against removing aboard from the
bottom. The statute reoujres that the ballots should be "sealed up in
nu envelope and the eoveloDe indorsed," etc.

This requirement is pot met by merely nailing up the ballots in a
wooden box and sealing up one side of the box.

We think the recount snould not be considered and that the exami-
nation of the case should therefore proceed upon the assumption that
contestant was entitled to the certificate of election, and that he should
be seated, and that hft should retain his seat unless his plurality of 25
votes shall be overcome by the investigation of the alleged illegal votes
cast for the contestant.

FAILTJRK OF ELECTION OFFICERS TO BE SWORN.

At Coalburg precinct, contestant claims that the officers were not
sworn. Section 8 chapter 3, of the code of West Virginia, provides as
follows :

The said oath *H11 appear properly certified on one of the poll- books of every elec-
tion, and in no case shall the vote taken at any place of voting be counted unless said
oath so appears, or unless it be proved to the satisfaction of the commissioners of the
county court, eccvened at the court-house as hereinafter required, that said oath was
taken before said commissioners, canvassers, and clerks entered upon the discharge of
the duties of their appointment.

Contostee claims that this law, which in terms is mandatory, should
be held unconstitutional.

If the commissioners of the county court had counted this precinct
it would De presumed that the proof of the oath was made to their sat-
isfaction as provided in the statute. (See Smith vs. Jackson, 51 Cong.)
It mav well be doubted whether such a statute could be held to be
other than merely directory in any event. As the general result arrived
at v/onld not be changed by excluding the Coalburg vote we refrain
from directly passing upon the question.

Whilst it might be very proper to punish the officers in some way for
violating a duty imposed by statute it would be manifestly a danger-

M'GINNIS vs. ALDERSON. 639

ous thing to disfranchise a precinct because the officers of the law
through accident, oversight, or design fail to take the prescribed oath of
office.

Such a construction would place it in the power of the officers to have
their return rejected at will if the majority should be contrary to their
political preferences.

There is some evidence to show that a part of the officers were sworn
and we do not feel willing to so construe this law as to disfranchise the
voters of Coalburgh, where Mr. Alderson had a majority of 20. The
supreme court of the State has never passed upon the question.

ILLEGAL VOTES CHALLENGED.

- Having thus reported our views upon the election and as to the right
of the contestant to the sent upon the face of the returns we will next
review the question as to illegal voters challenged on both sides. This
is a laborious and difficult task and we have endeavored to consider the
evidence as to each particular vote.

The following is the constitutional requirements of the State (Art.
IV., sec. 6) :

The male citizens of the State shall be entitled to vote at all elections held within
the counties in which they respectively reside, but no person who is a minor, or of
unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery
in an election, or who has not been a resident of the State for one year and of the
county in which he offers to vote for sixty days next preceding such oiler shall be per-
mitted to vote. Const. W. Va., Art. I, sec. 6.

BOARD CAMP PRECINCT, MERCER COUNTY.

Contestee challenges this precinct because the poll-books do not
show that all the judges were sworn, and that one judge was not sworn.

What we have said as to precincts where the same point is made by
contestant is sufficient answer to this claim.

DISPUTED VOTES.

Assailed by L. D. Solomon (Rec. 233) in Mercer and McDowell counties:

E. I. Edwards, Bowers Darby, Jno. Kirby,

Lee Kirby, Wm. Mays. Jos. Ballard,

Jno. Jackson, Juo. Terry, Sperill Wilcher,

Juo. Locher, M. C. Bodkin, Win. Old,

Thos. Chandler, Ed Waller, Beverly Sanders,

Monno Kent, Pleasant Lee, Monro Wonack,

BillNowlen, And. Bowen, Wm. Lee.
Total 21.

Mr. Solomon was one of the judges of election at the Peery Bottom
precinct, McDowell County, and in his official capacity received the
votes cast by these electors. It does not appear that he objected to any
of them, although he was well acquainted with them, and if they were
illegal voters, should have known it at the time that he received their
votes. His action as an election officer is utterly at variance with his
testimony as a witness, and we do not believe that we would be justi-
fied in excluding these votes upon such testimony.

C. E. Itusmeisel (Rec. 325, 326) unsuccessfully assails the following
names : John Jackson, Pleas. Lee, George Clark, Albert Clark. He
shows that Jackson was working at Shamokin Works in October, 1887.
He does not know personally where any of them came from,

640 M'GINNIS vs. ALDERSON.

Madison Kadford unsuccessfully assails the followin g parties at Mill
Creek, Mercer County : A. J. Kinsey, A. F. Kinsey, E. J. Kinsey, Milton
Otey, Armstead Otey, and David Sales. (Page 277 of the record, aud
pay-roll 303 to 307.)

Armstead Otey had been working there more than a j r ear. The time
of the residence of the Kinseys is stated from their declarations. Milton
Otey had stated that he had been away to Alabama. This evidence
wholly fails to show that these men were not competent voters. As to
Sales, the witness says he did not look old enough to vote. A. J. Kiu-
sey does not appear on Mill Creek poll-list. (Eec. 341.)

L. A. Conner unsuccessfully assails the following parties (Rec. 270)
at Simmons Creek, Mercer County : James Clemens, Peter Hartsook,
F. D. Holland, James Hackney, Caleb Welcher, George Price, and David
E. Bishop.

His statement is based wholly upon vague declarations of the voters
made before the election, and which declarations are inconsistent with
their subsequent action in casting their votes.

James Arnold, Houaker's Mill, Mercer County, unsuccessfully assails
Junius Cook.

Witness sa.ys the voter did not look to be of age. The witness proves
the vote by hearsay from the voter. Knows nothing of the length of
the voter's residence in West Virginia.

W. A. Davidson unsuccessfully assails, at Bluefield, Mercer County,
Charles Lee, G. B. Smith, and John Martin.

Says he does not know of a single illegal vote (Eec. 333). The fact
that a voter had worked in Virginia did not show loss of residence in
West Virginia.

D. S. Ratcliffe assails the following at Oak Vale, Mercer County : Isaac
Porterfield, Thomas Saunders, George Saunders, James Wall, and W.
D. Melvin. (Rec. 248.)

Mr. Ratcliffe was one of the judges of election, and the same reasons
already assigned for ignoring the testimony of Solomon apply with
equal force to him. Two of the judges were Democrats and one Repub-
lican. Melviu's vote was challenged on the ground of minority ; his
father was present and the vote was received. Witness made no ob-
jection to the voting of the other parties.

W. P. Boggess, Oak Vale, Mercer County, unsuccessfully assails I.
Porterfield, Joseph Wall, Charles Robinson, and W. B. Melviu. (Rec.,
346.)

The witness was a candidate for office, and he importuned these men
to vote for him, and they claimed not to be voters. Declarations of this
character are proverbially unreliable.

W. A. Young assails (Rec. 301) at Mill Creek, Simmons Creek, and
Honaker's Mills, Mercer County:

Dan'l Barbour, Randall Cook, Jno. Heil,

Ed. Hampton, Jas. Jarvis, E. J. Kinsey,

Mack Lee, Ambrose Mills, Thos. Mertin,

Anmted Ottey, Wm. Brown, Moses Johnson,

Silas Johnson, Elijah Perkins, Peter Perkins,

Green Sheppard, W. J. Thornhill, Granville Toller.

Phillip Tnruer, J. H. Bramwell,
Total, 20.

His testimony is simply to the effect that many of these men brought
their families to West Virginia within a year, but does not go to the
time when the men themselves became residents, and is insufficient to
overturn a presumption arising out of their votes having been received
by the duly appointed election officers, We may further add that Mr,

M'GIKNIS vs. ALDEESON. 641

Young was one of the clerks of the election; that he was a Democrat,
and registered all those whose votes were cast, and challenged none ot
them but Bramwell (Rec. 307).

The evidence is very wholesale in its character. Hampton was work-
ing there November, 1887 (Eec. 302) ; Barbour was working there No-
vember, 1887 (Eec. 302) ; Armstead Otey was working there November,
1887 (Kec. 302) ; Silas Johnson was working there November, 1887 (Rec.
302) ; Green Sheppard was working there November, 1887 (Rec. 302) ;
William Brown was working there September, 1887 (Rec. 302) ; Elijah
Perkins was working there November, 1887 (Rec. 302) ; W. J. Thornhill
was workiug there November, 1887 (Rec. 302); Thomas Merton was
working there September, 1887 (Rec. 302) ; Granville Toler was work-
ing there November, 1887 (Rec. 302).

A. I. Godfrey assails at Simmons Creek, Mercer County, James Cook
and John L. Smith (Rec. 358).

He bases his evidence upon the fact that taxes for 1887 were col-
lected from voters in West Virginia and afterwards paid back, because
they had been taxed in Virginia. It by no means follows that because
these men had not been in West Virginia long enough to be taxable
for the year 1887, that they were not there in time to be legal voters in
the eleventh month of the year 1888.

C. M. Kyle, (Rec. 279 and 281) testifies as to sundry parties, but his
evidence proves nothing except the time that they worked at that par-
ticular place, and he does not recollect where the voters had previously
worked. He sets out a list of workmen at Caswell Coal Company's
Works.

L. Schereschewsky, Simmons Creek, Mercer County, assails Joseph
Ward unsuccessfully.

Ward has resided a year and a half in the county.

J. H. Hetherman assails James Cook, Ed. Spinner, at Simmons Creek,
Mercer County. (James Cook, No. 87, page 388, and Ed. Spinner, No.
294, page 339.)

Spinner's vote was challenged, as appears by the poll list. This evi-
dence is not sufficient to overcome the ruling of the election officers on
the challenge. As to Cook the witness says he was living in McDowell
County at time of election, and had previously resided in Mercer
County ; that he had resided in McDowell less than sixty days. The
question of their residence was argued before the judges of the election
and determined that it had not been lost. The evidence of error on the
part of these officers ought to be clear to justify a change of ruling.
Perdue, a Democratic election officer, says that the voters were chal-
lenged and sworn (Rec. 238) ; that after examination he and the other
judges thought they ought to vote. In many instances other proof was
furnished as to their residence.

W. A. Thompson assails at Cross Roads, Mercer County

D. M. Jones. Joe. Williams. Jas. Craft.

C. B. Smith. Hy. Lessen. Jno. Griffith.

Jerry Davis. Jas. Glenn. Robt. Craft.

J.C.Simpson. Jno. Marlin. Lewis Troy.

Ben. Peery. Gus. Hale. Han'l Smith.
Total. 15.

He was commissioner of election, the judges being two Democrats and
one Republican. All these votes were received by these parties, and
what we have said of Solomon applies here also.

Pleas. Robinson assails, at Mill Creek, Mercer County, the follow-

H. Mis. 137 41

642 M'GINNIS vs. ALDEESON.

ing (Eec. 287): Ambrose Mills, James Jarvis, Armstead Otey, Bird.
Wright, David Sales, and Jim Mowgrass.

Otey had lived there over a year but did iiot have his family with him.
As to Sales' age, he simply repeats what he says Sales' mother told
him. This is not sufficient. As to Ambrose Mills, James Jarvis, Bird.
Wright, and Jim Mowgrass, witness shows that they came from Vir-
ginia in the spring of 1888, but Mills worked at Mill Creek three years
ago. Jarvis he says he understood worked at Mill Creek before, but wit-
ness did not know him. As to Wright and Mowgrass, witness shows
their residence at Pocahontas, Va., and these two votes should be held
illegal.

Thomas Falconbridge assails the following parties (Rec. 312) at May-
bery, McDowell County:

Alex. Stokes. J. H. Tate. Jos. Napor.

W. T. Smith. Henry James J. W. Marshall.

Clem Green. Geo. Wade. A. L. Calhouu.

Jno. Saunders. Wm. Hardy. Wm. Wooten.

Hardy Green. Eobt. Lemen. Wash Hardy.

Wm. Old. M. Robinson.
Total, 17.

This witness seems to be quite an enthusiastic one. He is impeached
as to many of the parties named, and such doubt is cast upon his testi-
mony that it ought not to be allowed to supersede the action of the elec-
tion officers and the presumption which attaches to the receipt of a
vote. For impeachment of this witness' testimony see as follows :

Rolls, p. 320, shows Hardy was working for Shamokin Coal Company
October 1, 1887, more than a year before the election. He changed to
Elkhorn Coal Company August, 1888. (Rec. 329.)

J. W. Marshall (Rec. 326) was working in October, 1887, for Shamo-
kin Coal Company.

Wm. T. Smith is shown by Mr. Hegg to have worked two years in
the State for Freeman & Jones. (Rec. 448.)

J. H. Tate worked for Houston Coal Company from August, 1888, to
October, 1888. (Rec. 334.) Falconbridge says this man came direct from
Virginia to him in August, 1888. (Rec. 313.) He is charged to have
voted at Peery Bottom (Rec. 29), but his name is not on the Peery Bot-
tom list. (Rec. 350.)

Robert Lemen did not vote (Rec. 350), though he worked for Shamo-
kin Coal Company from October, 1887. (Rec. 326.)

Joseph Napor was working for witness in October, 1888, he says.
Hewitt says Napor lived at Elkhorn. (Rec. 453.)

W. R. Jacobs assails (Rec. 367) unsuccessfully at Peery Bottom and
Mayberry, McDowell County

Geo. Brown. C. S. Galloway. Wm. Nowlin.

Geo. Brown. Jacob Dennis. Hy Gardner.

Geo. Allen. Eich'd Brittoii. Jno. Crenshaw.

Calvin Green. Hy Holly. Jno. Mitchell.

Chas. Folk. Gus Thompson. Allison Toller.

Polk Bnrman. Anthony Wyatt. Wm. Brown.

Thad Brown. Thos. Edwards. Wm. Holland.

Tom Martin. Ambrose Mills. Jno. Patterson.

Bird Wright. Sam'l Wheeler. Jacob Witters.
Total, '27.

These parties are assailed on the ground that within a year's time
they had been working in an adjoining county. This witness's evidence
is insufficient to exclude these votes.

M'GINNIS vs. ALDERSON.

643

Mr. Bloch (Rec., 308), registrar at Pocahoutas, assails :

Mill Creek, Mercer Co.

1 Brown, Wm. (colored).

2 Edwards, Thos. (white).

3 Evans, Lee (colored).

4 Lee, M. (colored).

5 Patterson, Jno. W. (colored).

6 Smoot, Bullet (colored).

7 Williams, Addison (colored).

Simmons CreeJc, Mercer Co.

1 Allen, Geo. (colored).

2 Bailey, Jno. (white).

3 Bagley, David (colored).

4 Chambers, Solouiau (colored).

5 Chttam, John (colored).

6 Droumie, J. W. (white).

7 Duncan, John (white).

8 Davis, Wm. (colored).

9 Green, Calvin (colored).
10 Hackney, Jas. (colored).

11 Harman, Lewis (colored).
1'2 Jones, Fred, (colored).

13 Lucky, Frank (colored).

14 Lee, James (white).

15 Powell, W. A. (white).

16 Polk, Chas. (colored).

17 Robertson, Jno. (colored).

18 Thompson, Gns. (colored).

19 Williams, Geo. (colored).

20 Weatherford, Wm. (colored).

1 Brown, Geo. (colored).

2 Callaway, S. C. (white).

1 Bro;vn, Jim (colored).

2 Brown, Geo. (colored).

3 Debnan, Wm. (colored).

Peery's Bottom, McDowell Co.

3 Davis, Wm. (colored).

4 Harriss, Reubin (colored).

Mayberry, McDowell Co.

4 Price, Wm. (colored).

5 Scott, Green (colored).

6 Smith, George (colored).

These voters are objected to on the ground that they were registered
at Pocahontas. This is not sufficient to overcome the presumption at-
taching to the receipt of the votes by the election officers, for the reason
that under the law of Virginia the registration is permanent, and there
is nothing inconsistent in the prior registry of these parties at Poca-
hontas and actual citizenship in West Virginia at the time the vote a
were cast.

J. M. Myles (Rec., 266), at Mill Creek, Mercer County, assails (sec
Time-book,* 302):

Win. Brown, Sept. 15, '87.
Green Sheppard, Nov., '87.
Ray Fitzgerald, Nov., 1887.
Joe Colliver, Nov., 1887.
Jns. Harvey, Dec., '87.
Lip Starling, not on roll.
Thos. Bibb, not on roll.
D. W. Figgins, not on roll.
W. Rice, not on roll.
Sam. Davis, not on roll.
Jno. Guy, not on roll.
J. H. P.' Prior, Nov., 1887.
Jas. Prior, not on roll.
Squire Young, not on roll.
And. Ross, not on roll.
Wm. Bruce, not on roll.
Rob't Simmons, not on roll.
Fount Black, not on roll.
Thoe. Chambers, not on roll.
Geo. Redd, not on roll.
Peyton Simmons, Sept., '88.
Wm. Gather, not on roll.
Henry Watkins, not on roll.
King Stovall, not on roll.
W. H. Nicewander, not on roll.
Jno. Dickerson, Nov., 1887.
Albert Gainson, Nov., 1887.
Juo. Wutkins, not ou roll,

Anderson Price, not on roll.
Oscar Holmes, not on roll.
Dan Franklin, not on roll.
Jas. Jeffries, not on roll.
O. Lewis, not on roll.
George Ray, not on roll.
Wash. Pennell, Oct. 3, '87.
Geo. Johnson, not on roll.
W. H. Hastin, not on roll.
Rob't Franklin, not on roll.
Ed. Fullen, Nov., '87.
Oliver Dillard, Mch., '88.
Jno. Daniels, not on roll.
Chas. Harvey, not on roll.
Sam. Wheeler, Sept., '88.
And. Jeffries, not on roll.
E. P. Alley, not on roll.
Phil. Turner.
Jud. Coles, Jan., '88.
Geo. Johnson, not on roll.
Jno. Douglass, not on roll.
Ed. Ford, not on roll.
Ed. Dillard, not on roll.
Peter Parker. Nov., '87.
Henry Woodson, not on roll.
Jas. Giles, not on roll.
Ed. Ford, not on roll,

644 M'GIXNIS vs. ALDERSON.

The evidence of this witness is wholly unreliable. The foundation
of it as given by himself is the time book found upon page 302 of the
record. An examination of this time-book will disclose the fact that a
very large number of the parties as to whom he testified were not to
be found upon the roll at all, their names are so noted above. With
respect to others as to whom he testified his testimony is contradicted
by the evidence of other parties, showing the residence of the voters
assailed in West Virginia at times different from those given by the
witness. His testimony as a whole is vague and indefinite and given
in wholesale. It is founded, furthermore, upon declarations, many of
them made subsequent to the election, and which, under the rules of
law adopted by the committee heretofore, have been declared incom-
petent. There are in fact no declarations testified to by this witness
which, in the judgment of your committee, have sufficient weight to
overcome the judgment of the election board that received the votes.

King Stoval is on Cooper's roll, p. 303, November, 1887; Green Shep-
herd worked for Cooper November, 1887. (Rec., 303.)

George Booth assails, at Mill Creek, Mercer County (Rec., 284) :

Jas. R. Booth, Jno. W. Booth, Thos. Booth,

Thos. Myles, Jeff. Willis, Wilson Booker,

Moses Johnson, Jno. Loch, Jas. Jarvis,

Thos. Saunders, Dnke Cobbs, Elijah Perkin.

Chas. Toller, Granville Toller.
Total, 14.

This witness's evidence is not sufficient to overcome the right of any of
these men to vote. It fails to prove the beginning of their residences, and
the presumption arising from the reception of their votes has not been
overcome.

W R. Johnston assails, at Mill Creek, Mercer County, the following
(Rec., 321):

Wilson Booker, Overton Mead, Sam'l Mayberry,

Peter Parker, Sheridan Reed, Hy Woodson,

Kelt on Winston Addison Williams, J. T. Smith,

Jas. Davis, Win. Estes, Sam'l T. Hunter.
Total, 12.

S. C. Bernheim (432) supports the right of the following voters :
"Willis Hayden, Mason Thornton, Jen . Sheltou, Thos. Higlitower.

W. R. Johnson is a somewhat interesting example of the testimony
by which large masses of voters have been sought to be disfranchised
or their votes excluded in this district. He swears that his family re-
side in Salem, Roanoke County, Va. He also swears that these various
voters, or a considerable portion of them, were not residents of \Vest
Virginia, but were in fact residents of Virginia because their families
resided in Virginia, but it appears on page 341 that said Johnson, not-
withstanding the residence of his family at Salem, Roauoke County,
Va., voted for Alderson at Mill Creek, Mercer County, and his vote has
been counted for Alderson. He now seeks to disfranchise twelve other
persons upon grounds which, if tenable, disfranchise himself. He voted
under the same circumstances which he claims disfranchises the others.
He voted after being challenged, and swore his vote in. A man whose
family lived in Virginia and who swore his vote in in West Virginia,
should hardly be accepted as a witness to disqualify a large number
of other voters situated precisely as he was. Johnson was living at
Flat Top Tunnel, W. Va. By a misprint (p. 321) it is stated as Flat
Top Tunnel, Va. (See map, p. 245.) His working residence was in
West Virginia, and he voted there, notwithstanding the residence of
his family at Salem, Va,

M'GINNIS vs. ALDERSOJ?. 645

Witness says he does not know whether the men came directly from
Virginia. (Rec., 322.)

S. M. Williamson assails (Eec., 290) at Simmons' Creek, Mercer
County, Perry Bottom poll-list, p. 350 :

Monroe Wammick, W. H. Smith, Kelton Winston,

Jno. Jankin, C. S. Galloway, G. B. Smith,

Rob't Tanner, Dick Woods, C. M. Spencer,

Green Scott, Spencer Witcher, Dan Diekenson,

Geo. Brown, Edw'd Johnson, A. C. Patterson,

Mack Robinson, Mason Thornton, Thos. Clark,

Abe Helm, Henry James, Jno. L. Waite,

Marshall Clark, J. W. Marshall, W. T. Smith,

J. A. Williams, J. A. Napor, Smith Russell,

Chas. Hardy, Geo. Helm, Jno. Patterson,

Jno. Lewis, Henry Taylor, Jno. Boiling,

Lee Kirby, Chas. H. Howard, Wm. Lee,

Jerry Richardson, Rob't Sauuders, G. W. Wilson,

Marshall Stoball, Wm. Caldwell, Chas. Clark,

J. J. Scott, Henry Woodson, Ben Wade.

David M. Jones, Wm. Brown,

Jas. Weaver, Chas. Johnson,

S. M. Williamson assails these parties upon the ground that they
were not qualified voters by reason of lack of sufficient time of resi-
dence in West Virginia. As to a very large number of the parties so
assailed, there is contradictory testimony out of the mouths of other
witnesses. This is true probably as to seventeen or eighteen of the 49
voters assailed. In other words, Mr. Williamson is by the testimony
of witnesses upon the contestee's side of the case proven to have been
mistaken, to put it mildly, in at least that many cases. With respect
to the other voters, as to whom he is not directly contradicted, his tes-
timony is of such a vague and indefinite character as to render it worth-
less to disfranchise these parties. In not a single instance, if the in-
quiry were being made as to the legality of the particular vote cast,
could its illegality be proven by the testimony of Mr. Williamson.
This is an example of testimony by wholesale, and it is insufficient to
affect individual votes. After testifiying as to the names given, he
qualifies his evidence by confining it to " most of them."

Solomon (235) says Womack came from Virginia in November or
December, 1887 ; Williamson claims that he came in May, 1888.

Robert Lemon, witness says, came in July, 1887, and worked till fall ;
then went home, and did not come back till July, 1888, whereas it ap-
pears from the Shamokin pay-roll (326) that he was working for that
company in October and November, 1887.

Green Scott, witness says, came from Virginia in February, 1888, but
the Caswell Creek Company's rolls show that he was working for that
company almost continually from October, 1887, to August, 1888.

John Lewis, witness says, came from Virginia in April, 1888, but it
appears from Cooper's rolls (p. 303) that he was working from January
to November, inclusive, for Cooper.

Lee Kerby, witness says, came from Virginia November 17, 1887,
while Solomon swears (p. 234) that Lee Kerby came with John Kerby
in July or August, 1887.

Mason Thornton, witness says, came from Virginia in November, 1888,
while S. C. Bernheim (p. 432) swears that he had lived on Simmons'
Creek three years.

J. W. Marshall, witness says, came from Virginia in January, 1888,
but pay-roll (p. 326) of Shainokin Company shows that he was working
for that company in October, November, and December, 1887.

J. A. Napor, witness says, came from Virginia in February, 1888, but

646 M'GINNIS vs. ALDERSON.

John D. Hewitt (p. 453) swears that he had been in West Virginia two
years beiore the election.

Charles H. Howard, witness says, came from Virginia in January,
1883, but Rev. John M. Douglass (p. 441) says he had been in West
Virginia about two years before election ; and John Cooper's pay-roll
(p. 302) shows that he had been working for him from September, '887,
to November, 1888, continuously, except in June, July, and August,
1888.

John Patterson, witness says, came from Virginia in February, 1888;
by Cooper's pay-roll (p. 303) shows that he worked for Cooper from
November, 1887, to November, 1888, without interruption.

William Lee, witness says, came from Virginia in March, 1888, but
Sharnokin Coal Company's roll shows (p. 326) that he was working for
that company in August and October, 1887.

To undertake to disfranchise voters whose votes had been accepted
by an election board with testimony such as that of Williamson
would be to render elections a farce.

Sam'l Beckett assails at Simmons' Creek, Mercer County, the follow-
ing (Rec., 228) :

Tbos. Ingram, Willis Hayden, Wiley Morton,

York Scales, King Lee, Woodey Dews,

F.D.Holland, JeffShelton, Harris Boy d,

Geo. Price, Sam'l Willmrn, Cbas. E. Holloway,

Jas. Hackney, Caleb Wilcher, Mason Thornton.
Total. 14.

It appears that the votes of these parties were challenged at the polls,
which were presided over by two Democratic judges and one Repub-
lican judge, and the challenge was overruled. The testimony of this
witness is against the judgment of the election board, rendered in the
exercise of its proper functions, and is not sufficient, in the judgment
of your committee, to exclude the votes of the parties assailed.

The witness concedes a four years' residence in the State to Thomas
Ingram.

York Scales, the witness says, came from Virginia about six months
before the election. On the contrary, he came from Simmons' Creek in
October (p. 281), and had been working for the Caswell Creek Coal
Company from October, 1887 to April, 1888, and in August and Septem-
ber, 1888.

Caleb Wilcher, witness says, came from Virginia about three months
before the election ; but Jno. D. Hewitt (p. 45-'i) says he had been work-
ing at Simmons and Flipping's for about two years, part of the time at
one place and part at the other.

J. H. Clare assails (Rec., 250) at Peery's Bottom, McDowell County :

Robt. Good. Geo. Smith. L. M. Burwell.

Alex. Stokes. J. Naper. Lewis Law.

Jno. Crider. Tas. Dillard. Wm. Simpson.

MinnisWade. Wm. Price. J. W. Marshall.

Jno. Kerby. Bowles Darby. Robt. Jones.

Wm. Lee. Joshua Green. Pleasant feee.

Monroe Kent. J. L. Kinner. Sam. Eckers.

Jno. Jackson. Fry Wade. W.T. Smith.

Wm. Nowlin. W. C. Botkins.
Total 26.

Mr. Clare was a detective employed in the interest of the contestee
at $2.50 a day to travel around and hunt up illegal votes. His evidence
is mainly based upon conversations had with the parties named, after
the election, and this testimony generally is of such a character as to

M'GINNIS vs. ALDERSON.

647

carry but little weight. We do not think that this testimony overcomes
the presumption arising from the reception of any of these votes.

B. L. Weaver (page 282) also assails at Mayberry, McDowell County,
Robert Law, Lewis Law, James Dillard, J. H. Mosely, Lowne Jones,
Morris Wade, Smith Eussell, and J. W. Marshall.

This witness testifies to declarations of the voters as to their residence.
These declarations are insufficient to overcome the presumption of
legality as to the reception of their votes.

J. 0. Freeman (Rec., 371) assails William Lee and Wesley Wagner.

Wesley Wagner did not vote, and there is no proof that William Lee,
who voted, is the same man referred to by this witness, and we have
already seen that William Lee, who voted at Peery's Bottom, was a
legal voter (p. 326), as Lee commenced work at Shamokin County,
August 29, 1887.

M. C. Franklin assails the following in Mercer and McDowell Counties
(Rec., 333) :

Sam Akers.
Ed Harmon.
Geo. Marsh.
W. T. Smith.
Jno. Terry.

Joe Ballard.
Jas. Hackley.
Jake Prillerman.
Wylie Smith.
Frye Wade.

Jno. Dooley.
Sam'l Lambert.
H. C. Patterson.
W. H. Terry.
J. S. Wade.

p. 335.

This witriBss only knows where these men come from by report.
This is not sufficient.

J. R. Jewell assails the following parties : Richard Holloway, Will-
iam Johnson, George Johnson, and Philip Williams, at Alderson, Mon-
roe County.

The right of these votera to vote is assailed on the ground of non-
residence. The proof of non-residence is very vague, and is mainly
based on declarations made by the voters that in going back to Vir-
ginia they were "going home," an expression which is in common use
by men living in a State different from that of their birth. Besides,
these votes were challenged and passed upon by the judges of election.

We find the following illegal votes cast for the contesting parties.

Illegal votes for McGinnis.

1 Taz Brown (Rec., 152, 159, 173, 174, 179,

180, 197).

2 Joseph Robinson (Rec., 159, 173, 174,

197,209).;

3 Augustus Higginbotham (Rec., 175,

176, 178, 180, 197).

4 Wesley Moyes (Rec., 184, 186, 187).

5 Robert Riley (Rec., 164, 184, 186, 187,

213).

6 Frank Frame (Rec., 163, 213).

7 Dan'l Casdorf (Rec., 164, 213).

8 Geo. Hughes (Rec., 115).

9 J. W. Moore, minor (Rec., 115. 116, 119,

121).

10 F. M. Norman (Rec., 185, 204, 214).

11 H. C. Patterson (Rec., 334, 293, 294.

12 Tim Mowgrass v Rec., 287).

13 Bird Wright (Rec., 287).

Jacob Judy was a legal voter and offered to vote and his vote was ex-
cluded. He had the same right to vote as two Democrats named Quick.
Their votes were received and his was excluded. His vote should be
counted for McGinnis. (Rec., 49, 50, 52.)

Rhodes D. Trent (misprinted Friend, Rec., 89) went to the polls at
4.30 p. m. to vote for McGinnis and his vote was refused, the polls being
closed that early. This vote was tendered and refused during voting
hours and should be counted for McGinnis.

648 M'GINNIS VS. ALDERSON.

Illegal votes for Alderson.

1 M. A. Bell (Rec., 37,38).

2 Luther P. Fleming (Rec., 42,44).

3 J. Traineor (Rec., 53,54,55).

4 Christopher Bunies (Kec., 56,57,146).

5 John R. McCoy (Rec., 89,93).

6 J. R. Presley (Rec., 90).

7 Captain Newsome (Rec., 89,93).

8 Isaac Brown (Rec., 89,90,93).

9 Wm. J.Wyant (Rec., 97,98).

10 Riley Gilpin (Rec., 97).

11 Elmbre Ross (Rec., 99).

12 Wm. Bittinger (Rec., 101,103).

13 John Parke (Rec., 102).

14 Archibald Gauoe (Rec., 103).

15 Kelley Broyles (Rec., 104).

16 JamesH. Crawford, jr. (Rec. ,96, 98)

SUMMAttY.

Majority for McGinnis on returns 25

Deduct illegal votes 13

18
Add votes illegally rejected 2

Majority for McGinnis.. 14

Add illegal votes, lost to Alderson 1C

Net majority for McGinnis 30

We recommend the passage of the following resolutions :
Resolved, That Jiio. D. Alderson was not elected to the office of Rep-
resentative in Congress for the Third Congressional district of West
Virginia.

Resolved, That James H. McGinnis was duly elected as Representa-
tive in the Fifty-first Congress for the said district and is entitled to
his seat as such Representative.

VIEWS OF THE MINORITY.

The return of Kanawha County was properly omitted by the gov-
ernor; indeed, in technical strictness, there is even yet no legal return
from this county. But counting the vote of said county as shown by
recounts lawfully had, contestee has a plurality on the face of the re-
turns. The precautions taken pending the recount were sufficient to
make it trustworthy. Of the illegal votes charged, a very much larger
number is proved to have been cast for McGinnis than for Alderson,
and contestee's plurality is considerably increased thereby.

649

VIEWS OF THE MINORITY.

AUGUST 2, 1890. Mr. OUTHWAITE, from the Committee on Elections,
submitted the following as the views of the minority:

For the purpose of attempting to shift the burden of proof in this
case, the majority set out to show that the contestant was entitled to
the certificate of election. The report presents a tabulated statement
made by the governor of the vote cast in the district, from which he
omits the vote of Kanawha County. It insinuates that some great
wrong was done by omitting this county that "cast an undisputed
majority of over 1,300 in favor of the contestant," and gravely states
that

A certificate of election showing upon its face that nearly 8,000 votes were wholly
ignored in the court can have no binding force and effect in a contest of this character.

The statement of the governor clearly shows that it was by no fault
of his, nor of the contestee's, that the vote of this county was omitted
at the time he issued the certificate. He says :

The county commissioners declared the result of the election in Eanawha County
December 15, 1888. The certificate was mailed in this city on the 17th of said month,
and received in this office late in the afternoon.

On the same day a writ of certiorari was awarded by the circuit court of Kanawha
County ou the petition of John D. Alderson, who claimed to be elected to said office,
against the said commissioners, and against James H. McGinuis, who also claimed to
be elected to said office. The order awarding the certiorari provided for a supersedeas
to the judgment and decision of said commissioners upon the execution of bond, as
required by statute. The bond was forthwith executed, and said judgment and de-
cision suspended. A certified copy of the record in the certiorari proceedings shows
that said commissioners, in declaring the result of the election in said county, ex-
cluded from the recount, had, under the statute, on the demand of said Alderson, a
sufficient number of ballots in his favor to have secured his election to said office.

The circuit court aforesaid on the 23d inst. entered judgment reversing the entire
proceedings and finding of said commissioners, and remanding the cause.

It will thus be seen that no hardship resulted to contestant, no in-
justice to Kanawha County, no evil to the people of the district, and
no wrong to the country by this omission of Kanawha County. The
first certificate of election issued by the Kanawha County commissioners
was annulled by the judgment of the circuit court of Kanawha County,
entered on the 23d day of February, 1889, the judge thereof being a
Republican (see Eec,, p. 221). The second certificate of the result of the
election in said county, issued by said commissioners, if they issued one,
is now inoperative and suspended by an order made by the same circuit
court entered on the 3d day of January, 1890 (see additional testimony
printed in this case, pp.93, 94); and, in truth and in fact, there is
to-day existing no legal return of the election in said county. If a

651

052 M'GIN^IS vs. ALDERSON.

technical rule was to be applied in this case, it might be claimed that
this controversy should be determined without considering the vote of
Kanawha County at all.

Yet, including this county, Mr. Alderson has a clear majority of 16 in
tbo district. Even if the correction of the error claimed to have been
made against contestant in Boone County were conceded, all votes cast
counted gives coutestee a clear majority of 7 in the district. But we
can not concede this claim. It is sufficient reason to call attention to the
unsatisfactory testimony by which the certified vote of that county is
sought to be changed favorably for the contestant. No explanation is
attempted to be given, no error is pointed out, to account for it. The
officers having in charge the poll-books and tally-sheets are not called
to account for their proper keeping, nor to explain the reasons for the
desired change. The witnesses were examined without due legal notice
to contestee as required by law. It is a u recount" of a nature not au-
thorized by law. The men who made the mistake, if any was made, are
kept off the witness stand. Yet the committee insist upon giving con-
testant 9 votes. No suspicion, no danger of fraud (in their view), seems
to attach to such unwarranted change of the legally ascertained vote of
a county. It is for the interest of the contestant.

The contestee claims and proves that a large number of illegal votes
were cast and counted for contestant. Contestant sets up a similar
claim as to a small number of votes given for contestee, but, as he says
in his brief, " has taken but little testimony." Before examining into
these illegal votes upon either side, we shall consider the recount in
Kauawha County, which was taken under the following provisions of
the law of West Virginia as to the duties of the county commissioners
when acting as a canvassing board :

They shall, upon the demand of any candidate voted for at such election, open and
examine any one or more of the sealed packages of ballots and recount the same, but
in such case they shall seal up the same again, along with the original envelope, in
another envelope, and the clerk of the county court shall write his name across the
place or places where it is sealed, and endorse on the outside : Ballots of the election
held at , the district of , and county of , etc.

THE RECOUNT.

Contestee made a demand, in writing, before the commissioners of
the county court of Kanawha County for a recount of the ballots cast
at said election at all the precincts of said county, at the meeting of
said commissioners held to ascertain the result of said election in said
county on the 12th day of November, 1888, that being the time fixed
by law for the ascertaining and certifying of the result of the election in
each county. On this day the said court took charge of all the ballots
cast in said county, and the election of contestee was then conceded.
The said commissioners were all Republicans; and in the progress of
said recount their actions and rulings were so partisan, corrupt, and
biased in favor of contestant that they refused to allow contestee to
appear before them in person or by counsel. They denied him the
process of the court, refused to permit him to introduce any testimony,
or to cross-examine the witnesses who were put upon the stand to tes-
tify in respect to the regularity of the retmns from the various pre-
cincts in said county. And they further refused to settle and sign bills
of exceptions certifying their illegal and partisan action aforesaid until
they were compelled to do so by the peremptory writ of mandamus
issued by the supreme court of appeals of the State. (See record in
case of J. D. Aldersou vs, Commissioners of County Court of Kanawha

M'GINNIS vs. ALDEESON.

653

County, tiled ill this case, marked "Eecord No. 1, ?> and also tbe opinion
of the supreme court of appeals in said case, W. Ya. Eep , vol. 31,
p. 633.)

After the said order of the supreme court made in said case, requir-
ing said commissioners to settle and sign bills of exception to their
rulings in making the recount and requiring them to allow contestee to
appear by himself or attorney to said proceedings, they continued their
partisan and illegal actions and committed very many wrongs, to the
prejudice of the coutestee, in ascertaining the result of said election in
said county upon his demand for the recount aforesaid. In the pre-
cincts where the recount of the ballots showed gains for the contestant, they
adopted the recount, and where gains were made for the contestee they re-
ected the recount and certified from the poll-books rather than the ballots.

They rejected the recount of the ballots at St. Albans precinct of
said county, where coutestee made a gain of one vote and contestant
sustained a loss of three votes, without any evidence or facts appear-
ing to warrant them in doing so. They rejected the recount at Alum
Creek precinct, where contestee made a gain of three votes and con-
testant sustained a loss of six votes, against the evidence received and
considered by them and without authority of law. They likewise re-
jected the recount at Charleston precinct, where contestee made a gain
of twelve votes and contestant sustained a loss of thirteen votes, with-
out any evidence to sustain them in their action. But they were care-
ful to accept the recount in West End precinct, where contestee sus-
tained a loss of two votes and contestant made a gain of two votes; in
Maiden precinct, where contestee sustained a loss of one vote; at
Thaxton's, where contestee sustained a loss of one vote; at Field's
Creek, where contestant made a gain of one vote ; at Clifton, where
contestant made a gain of one vote, and at Cannelton, where contestee
sustained a loss of one vote. All of the facts and rulings of said com-
missioners, herein referred to in respect to said recount, are contained
and set out in Eecord No. 2, filed in this case (p. 41 to 86, additional
testimony).

The following tabulated statement, as appears upon page 36 of said
Eecord No. 2, shows the vote as it was certified upon the poll-books
from each and every precinct in said county, and also the result of the
recount of the ballots cast at said precincts made by said commission-
ers, as hereinbefore stated, as between contestant and contestee:

Precincts.

Original count.

Recount.

d
3

o
-o

"3
a

14
153
264
228
88
50
17
25
16
92
58
124
47
79
82
69

55
229
320
234
163
144
77
40
26
70
40
104
69
88
211
15

14
151
263
229
87
53
17
25
16
92
58
124
47
79
82
69

55
231
320
231
163
138
77
40
26
70
40
104
96
88
211
15

West End

St Albans ....................

Kendall's Mills

Dry Ridge

Browustown

Smith's Creek .

Spring Hill

Lowiston

Big Sandv

Kelley's Creek

G54

M'GINNIS vs. ALDERSON.

Precincts.

Original count.

Rec-.nnt.

Alderson.

McGinuis.

Aldorson.

McGinuis.

121
60
91
101
36
52
23
49
19
113
64
100
64
840
27
74
37
52

53
44
331
179
40
154
22
179
82
134
84
82
61
864
51
162
138
110

121

GO
91
101
36
52
23
49
19
113
64
101
63
852
27
74
37
52

53
44
334
179
40
154
22
180
82
135
84"
81
61
851
50
162
138
110

Tyler Cruek - - -

Fairfield . ..... -

Clifton

City of Charleston . -

AldenCity

Total

3,329

4,658

3,341

4,638

The contestant received in all of the counties of said district, other
than the county of Kanawha, 14,631 votes, and contestee received in
same counties 15,944 votes. If the election is determined in Kanawha
County as certified upon the poll-books, contestant has a plurality in
the district of 16 votes. If, however, it is determined upon the recount
of the ballots cast in said county, then contestee has a plurality of 16
votes.

Can it be this result which leads the committee to the conclusion that
" such recount is full of danger?" There were two precincts in which
the changes were largely against the contestant. The changes in the
other precincts were in his favor as much as they were against him.
The recount in those is not attacked ; but the recount in Alum Creek
and Charleston is objected to by the committee, also by the contestant.
By counting the ballots the county commissioners found that the judges
or clerks of election had mistakenly counted 3 votes less for Alder-
sou than he had received and 6 votes more for McGinnis than he had
actually received at Alum Creek precinct.

In the same way we learn that the election officers in the Charles-
ton precinct had erroneously counted 12 votes less for Aldersou than
there were ballots cast for him, and 13 more for McGinnis than there
were ballots cast for him. An examination of the circumstances under
which the election officers made their count will show that such mis-
takes could easily have occurred. We shall draw no inference from the
fact that two of the judges of election at Alum Creek were Eepublicans
to account for the mistakes there.

But we here call attention to the evidence upon the matter of said
recount.

AT ALUM CREEK PRECINCT.

It appears from the evidence of J. B. Holstein, J. C. Holstein, J. W
Goshorn, W. A. Griffith, and W. McCorkle that the said W. A. Griffith,
who was one of the commissioners of election at Alum Creek precinct,
was drinking and under the influence of liquor on the day of said elec-
tion while ballots were being received by him, and that night, while
same were being counted ; that there was whisky in bottles and in a

M'CflNNIS VS. ALDERSON. 655

jug there, being passed around generally during that time ; that the
ballot-box at that precinct was opened, contrary to law, during the day
while ballots were being received, and the same counted on certain can-
didates voted for; that the said Griffith was asleep from the influence
of liquor during a portion of the night when the ballots were being
counted. (See Kec., pp. 61, 172, 211, 191, and i94.)

It appears from the evidence that on the morning after the election
- the said Griffith took the package of ballots which, he states, were
sealed up, put it in one end of a sack and a rock in the other, threw
the sack across a horse, and rode upon the same 12 miles to the
city of Charleston and delivered said package, so sealed up, to J. W.
Goshorn, clerk of the county court of said county. This certainly af-
forded an opportunity for said package to be defaced or broken open.
And the evidence further shows that said package was carefully and
properly preserved, with all the other packages of ballots, until same
were laid before the commissioners of the county court on the 12th day
of November, 1888; that the said commissioners of the county court
then and there took all the packages of ballots, including the package
from Alum Creek, and placed them in a bag and carefully tied and
sealed up the same, and wrote their names across said seal. This bag,
under the directions of the said commissioners, was placed over the
storm-door to the clerk's office of said county court. It further appears
that said bag was thrown down from the top of the said storm-door, a
distance of 7 feet, upon the stone floor in said clerk's office, several
times while said packages of ballots were still in said bag.

The package which contained the Alum creek ballots was made of
thick manilla paper of the same kind and quality as the one filed with
the proof in this case. Considering the character of the package and
tha manner the same was handled while in said bag, it is not improba-
ble that the seal was broken or torn by reason thereof, especially when
the proofs show that same was not well sealed by the precinct com-
missioners. When the commissioners of said county court proceeded
to recount the ballots, upon the demand for same, which was about ten
days after they were returned to said clerk's office, the said bag was
found in the same condition in which it was left when first sealed
up, with the seal unbroken. It also appears from the evidence that
a number of the packages of the ballots from various precincts in
said county were returned to said clerk's office unsealed, before the
Alum Creek package was so received. These open packages were never
sealed up, except in the bags before stated, until after the ballots were
recounted by the commissioners of the county court.

If it had been desired by any one to tamper with any of the ballots
so returned to said clerk's office, it is unreasonable to assume that a
sealed package would have been broken when it thus appears to have
been unnecessary. We refer to the depositions of J. W. Goshorn, Joel
S. Quarrier, and W. E. G. Gillison ; also to the deposition of J. A. Jones,
pp. 159, 204, and 203, Record :

When the vote was all counted it was near daylight in the morning.

Were these ballots properly kept until they were recounted by the
county commissioners I

The law provides that the original packages shall be sealed up at
the place of voting, as follows :

When the said certificates are signed, the ballot shall be inclosed by the commis-
sioners in an envelope, which they shall seal up, and write their names across the
place or places where it is sealed, and indorse on the outside of the said envelope as

follows: " Ballots of the election held at , in the district of and county

of . the day of , etc.

656 M'GINNIS vs. ALDERSOX.

As soon as the result of the recount was discovered to be adverse to
the contestant, his political friends set about to destroy the legal effect
thereof by questioning the care taken of the ballots since they were
miscounted. The three precinct commissioners in their testimony show
that the ballots were put on a string as they were taken out of the bal-
lot-box; alter the vote was counted the ballots were put in an envelope
or mauilla paper box, they send a clerk to get some mucilage to seal
this box up, and do seal it up with mucilage, and it was cared for aud
disposed of as we have just set forth.

The circumstances surrounding the disposition of thes ballots and
the preservation of them is such as might ordinarily occur in a great
many precincts. Nowhere is there any evidence tending to show, in
any degree, that the ballots were tampered with. The law was sub-
stantially complied with up to the hour the county commissioners took
the ballots into their charge and possession aud they left them in the
custody of the county clerk. This county clerk was a Republican and
so were the county commissioners, and up to the time in which they took
possession of all the precinct returns the election of contestee had not
been questioned ; rather had it generally been accepted. No one has
testified that the envelope was torn open when these county commis-
sioners came to make their recount. Mr. Jones testifies that

This package did not appear to have been torn open. It showed an effort had been
made to seal it.

Mr. Goshorn, the Republican clerk (Rec., 193), testifies that

It had not been torn open, but looked, upon close examination, like it had been
glued, but the glue did not stick.

In fact the package, newly mucilaged and carried to town as described,
had become loosened, or from the subsequent tossing down from above
the storm-door in the bag with thirty-two other packages, had pulled
apart. There is no room for even a " natural suspicion " that the ballots
from Alum Creek had been tampered with, No opportunity is shown
for it to have been done. The fourteenth, fifteenth, and sixteenth ques-
tions to J. W. Goshorn, the Republican clerk, and his answers are here
given.

Q. 14. At the time you epeak of the returns from the various precincts being put
in the sack and sealed up and the sack placed over the storm-door, what question
was there about the election of Fleming for governor aud Alderson for Congress .'
A. There was none whatever, as we had not heard from tho remote or back counties,
and it was confidently believed that Fleming and Alderson were both elected by good
and safe majorities, and not until the returns from these back Democratic counties,
where the Republicans made heavy gains and this changed the result, which was ten
days after the election.

Q. 15. Were you present when the sack you spoke of was presented to the county
court to make the recount! If so, state in what condition it was? A. I was; it was
examined by the court and the attorneys, and they decided that it was in the same
condition that it was on the Monday after the election, as the seal was unbroken and
no holes in the sack or any indication of any having been made in the sack.

Q. 16. Please state in what condition the package from Alum Creek precinct, was
when it was taken out of the sack for the recount? A. The red string or tape was
tied around the paper box ; when we examined the box closely it looked like there
had been mucilage or glue used to stick it together. My impression, or the way I ac-
connt for it, was, that there had been a little glue put on and had not had time to dry,
as the box was so thick that the mucilage or glue would not stick unless it was per-
fectly dry. If it was stuck when Mr. Griffith left home, the ride of twelve miles horse-
back, with the returns in one end of sack and a rock in the other, would be almost
certain to break the box open. If the box was fastened when it came to the clerk's
office, the simple fact of putting it in a sack with 32 others would make a weight of
about 60 pounds; throwing that sack up aud down on aud from the storm-door on to
the rock floor would have surely broken the glue. I do notthiuk that any one of the
33 packages which was sealed up in like manner as the Alum Creek package was

M'GINNIS vs. ALDERSON. G57

claimed to be, but what the glue or mucilage had broken loose. Those that did hold
were sealed up with a piece of paper round the oulsifle of the envelope or box.

Q. 17. When the said Alum Creek package was produced on the recount was the
same torn open or did it appear that mucilage or glue had come apart ? A. It had
not been torn open, but looked, upon close examination, like it had been glued but
the glue did not stick.

CHARLESTON PRECINCT.

An attempt is made to discredit the recount of the vote for Congress^
jman at Charleston precinct because it gives Alderson a gain of 12 and
'McGinnis a loss of 13. Before considering the claim that these ballots
were not preserved in the manner pointed out by law let us see how
they were counted by the precinct commissioners and clerks of election,
two-thirds of whom were Republicans.

It appears that, at Charleston precinct, a very large number of votes
were polled at said election, to wit, 1,758 ; that, in order to make proper
tally of all persons voted for at said precinct at said election, a column
was kept for each one of one hundred and two names upon tally-sheets,
each 3 feet by 4 feet in size, by each of the clerks who kept said tally.
More than 500 votes having been polled at this precinct, it was unnec-
essary, under the law, to wait until the polls were closed to begin the
counting of the vote, and about 8 or 9 o'clock on Tuesday morning of
the said election the canvassers and clerks commenced to count this said
vote, and were engaged continuously, without intermission, both day
and night, until the hour of 11 o'clock on Friday night following in com-
pleting said count. The canvassers who read the ballots were old men,
and most of them required the use of glasses to aid their eye sight. The
count was made in the court-room of the county court-house, which was
very poorly lighted, there being in the night-time what was called a
'^cross-light." That it is probable that mistakes were made by these
canvassers and clerks is shown by the fact that they frequently discov-
ered each other in so doing. They necessarily were inaccurate because
of their long engagements, growing tired, and the loss of sleep, as stated
by them.

After the count was completed the ballots were strung and, to-
gether with the tally-sheets, were placed in a cake or cracker box
selected for the purpose it having been necessary from the bulk made
by said ballots and tally-sheets and the box nailed up, sealed, and in-
dorsed uy said commissioners of election at said precinct, as required
by law. The box was procured by Joel S. Quarrier from S. S. Smith,
a clerk in the store of A. C. Orcutt.

The only ground upon which the rejection of the recount of the said
ballots can be justified is the untenable one that the ballots in said box
so sealed up were tampered with after the same were placed in the-
hands of the clerk of said county court and before the same were laid
before the said commissioners of the county court on the 12th day of
November, 1888. To support this contention an effort is made to prove,
by Thomas Y. Jarrett, T. J. Rocky, and John Slack, jr., that the con-
dition of said box, when the same was laid before said commissioners
on November 12, 1888, was different from what it was when the said
ballots and tally-sheets were placed therein on the Friday night pre-
vious.

Mr. Jarrett testified (p. 65) that he was one of the commissioners at
said election ; that he looked at said box before the ballots were placed
in it; that it appeared to be sound; did not notice any crack or chisel-
mark on the bottom thereof, but declined toistate that the condition of
H. Mis. 137 42

658 M'GINNIS vs. ALDERSON.

tbe box was changed. Mr. Eocky (p. 73) testified that he examined
the box before the ballots were put in it ; that the box was turned up-
side down ; he discovered no defects in box, and considered it in good
condition; that the other canvassers and commissioners examined the
box at the same time and appeared to be satisfied with its condition;
that none of them mentioned the discovery of any defects ; that the
next time he saw the box was when he was summoned before the
commissioners of the county court to testify in regard to the condition
of the box, when they were making the recount. This witness didn't
think the box was in same condition then as when ballots were put in
it; that a, board on bottom of box was split; there were three indent-
ures, as if made by chisel or other instrument in attempt to pry board
off of bottom of box ; direction of split in board corresponded with direc-
tion of pressure as indicated by indentures. Ou cross-examination (p.
75) the following question was propounded to witness, who made the
subjoined answer thereto :

Question 20. Did .you riot state on your examination before the county court, in
answer to a question as to the condition of said box. that you had not made an ex-
amination of the box and could not say whether said marks were on said box at said
time or not, or words to that eft'ect? -Answer. I believe I stated before the county
court that I did not turn the box over myself, but that some one else did ; that I .saw
the box ; that I thought the box in good condition ; that I noticed no split or defect
in the box. I may have stated that the chisel-marks might have existed at that time
and I not have noticed them.

Mr. Slack (p. 70) testifies that he examined box at time of recount;
it had every appearance of bottom being taken off ; marks of chisel that
had pried bottom off were plain to be seen ; nails had every appear-
ance ^' having been taken out and driven back ; a small splinter had
been broken loose, evidently done when bottom was taken off.

The testimony of T. J. Rocky is not to be relied upon in this case.
He has impeached himself by his own statements, independent of the
evidence on that subject to which we will hereafter call attention. It
appears he was summoned before the commissioners of the county
court ot said county when they were engaged in making said recount
on the 6th day of December, 1888, and testified as follows:

Q. Did you examine the box in which the ballots were put ? A. I did not examine
the box.

Q. Did not examine the bottom of it ? A. No, sir; I did not. (See Record No.
2, pp. 67, GU)

The foregoing is all the testimony of the said Eocky given before
said commissioners with reference to his examination of said box.

He testifies emphatically before the commissioners that he did not
examine said box before the ballots were put in it; yet he testifies in
this case that he did make such examination, and in his answer to ques-
tion No. ..0 of his cross-examination he stated what must be construed
to mean that he formerly testified that he did make such examination.

On page 365 of record J. A. Hutchison testifies that he was the sten-
ographer who took the testimony of the said Eocky given before said
commissioners with reference to the condition of said box before the
ballots were placed therein. We quote from said Hutchison's testimony:

Q. 6. Was he asked as such witness (meaning said T. J. Rockey) in respect to box
in which the ballots cast at Charleston precinct, in said county, "were placed by the
deft ion commissioners of said precinct after said ballots had been strung by them ?
A. He \vas.

Q. 7. What did he say in respect to the condition of the box? -A. He said, " I did
not examine the box or the bottom of it before the ballots were placed in it," or after
they were placed in it, and before the box was delivered to the conntv court clerk of
Kanawha County.

M'GINNIS vs. ALDERSON. 659

James A. Mahan testified in this case (p. 209) that he was one of the
canvassers of said election at Charleston precinct ; that Joel S. Quarrier
brought the box into the court-house in which said ballots were placed;
that he was the only one of the election officers who took hold of the
box before the ballots and tally- sheets were placed therein, but that
no examination whatever was made of the box by any one after the box
was brought in and before the ballots were put in it; and that he
examined box at the time the said commissioners of the county court
were taking testimony about it and saw no difference in its condition
then than when it was brought into the court-house by Air. Quarrier.

Here is a witness directly contradicting Rocky.

E. M. Seuter, J. D. Shumate, and I. E. Christian, on pages 426-429,
all testify that they are acquainted with the general reputation of
said Eocky for truth and veracity, and from that reputation would
not believe him on oath. It appears from the evidence of A. P. Fry,
J. D. White, James H. Fry, and J. A. Jones that said Eocky did not
make the examination of the box, as stated by him before the ballots
were put in it.

Mr. Eocky is shown to have been a Eepublican at the time of said
election ; so partisan in his friendship for contestant in this contest
that, although not a public officer, he traveled many miles to serve no-
tices upon contestee to take depositions in this case. Under this state
of facts is it not fair to assume that Mr. Eocky's testimony in this case
is wholly unreliable and should be disregarded; and in view of the
fact that Mr. Slack states in his deposition, exultingiy, that he was a
Eepublican and devoted his time solely for ten days prior to the elec-
tion in the interest of the Eepublicau party, that he, too, may have
been somewhat biased in his statement in reference to said box? But,
even if his statement is true, it by no means proves that the condition
of the box was changed. He had never seen the box until during the
recount-

But the testimony of unimpeached witnesses entirely destroys the
last vestige of this subterfuge to avoid the recount of Charleston pre-
cinct.

J. W. Goshborn deposes and says :

A. When they got thro' counting: on Friday night about 11 o'clock, after the
election, Mr. Quarrier, my deputy clerk, got a cake or cracker box from Mr. Orcntt's
store, across the street from the court-house, and the ballots and tally-sheets were
put into that box ; Mr. Quarrier took charge of the box and put it in the corner of
the back room of the clerk's office and covered it over with some papers, and there
it staid until it was put into the strong wooden box we had made to keep all the
ballots in, which was about three days afterwards.

Q. 25. Please state how the said cake or cracker box in which said ballots and
tally-sheets were kept was secured ? A. There was a piece of paper pasted over it
and sealed, with the commissioners' names written across it, and it was never broken
nntil the county court commenced the recount, when they broke it.

Q. 26. Please state wbe you first heard the charge made that said box had been
tampered with, and from whom did it proceed? A. The morning after the recount
was completed ; I could not find out, as it was talked .about by irresponsible Repub-
licans; when I heard there was an intimation of that kind I inquired of Mr. Qnarrier
where he got the box. He told me that he got it across the street, from Mr. Orcutt's
store; I went across the street and got Mr. Orcutt and Mr. Smith, his clerk, from
whom the box was procured, and we examined the box ; tbey both stated that there
was no indications that the box had been tampered with. Mr. Smith stated that the
wholesale houses were in the habit of opening that kind of box from the bottom to
sample, as the top was put on with hinges and nailed. We went over to Mr. Orcutt's
office and examined a box of the same make and from the same firm, which was split
in identically the same place as the ballot-box. I went to Messrs. Cunningham and
Staunton, two of the county commissioners, and told them that some irresponsible
eoamps were intimating that the ballot-box had been tampered with in my office, and

660 M'GINNIS vs. ALDERSON.

that I wanted them to put Mr. Quarrier, Mr. Orcutt, and Mr. Smith on the stand, as
they would testify that the bos was in the sa r ae condition as it was when they gave
it to Mr. Quarrier. They both told me that it wasn't necessary, as they would pass
a resolution exonerating me and my office from all bla . e.

Q. 27. Were you present in the court-house when the said box was brought over
from Mr. Orcutt's store and the ballots placed in it ? A Yes, sir ; I was.

Q. 28. What examination was made of that box by any person interested before the
ballots were placed in if? A. Mr. Quarrier brought the box. set it down on the
court-house floor, Mr. Mahan picked up the box and turned it over and ^et it down
again; Mr. White and Mr. Jarrett looked iu the box; the tally-sheets and ballots
were put in, I think, by Mr. Jarrett; there was no critical examination of that box by
anyone, as it w\as nearly 12 o'clock, and the commissioners, canvassers, and clerks
had been working for four days and nights and were anxious to get home and get some
rest.

Q. 29. In what way was it charged that said box had been tampered with? A.
There never was any charge that the box had been tampered with, but there were
intimations from irresponsible scamps that part of the bottom had been taken off.

Q. 30. Please state, after such intimations were made, if you noticed any marks
or splits on the bottom of the box; if so, state what they were? A. The bottom of
the box had either two or three (I think three) planks in it, and one of the planks
was split. I am of the impression this was caused by the sun. or a sun crack, as I do
not believe that plank could be taken off without splitting out the nail holes, as the
plank is very thin and the nails are very close to the edge.

Q. 31. Was there any signs of freshness about the splits? A. Xone whatever.

Joel S. Quarrier, another witness of lawful age, being first duly
sworn, deposes and says :

Q. 1. (By M. Jackson, attorney for J. D. Alderson.) fetate your name, age, resi-
dence, and occupation. A. Joel S. Qnarrier; 57 years; Charleston, W. Va. ; deputy
clerk county court.

Q. 2. Please state if you were employed in the county clerk's office at the time of
the election, November 6th, 1888, and how long you have been employed there ? A. I
was so employed at the time of said election, and have been in the office about two
and one-half years as deputy clerk.

Q. 9. Please state if your attention was called to the box in which were placed the
ballots cast at the Court-House precinct. If so, when, and in what condition did you
find it? A. My attention was called to it after the recount was had ; am not sure
that I knew the ballots were in a box before that time. I found it all right, appar-
ently, except that there seemed to be a small abrasure-or something on one .side of it
or the bottom, which, in my opinion, did not amount to anything; one of the planks
in the bottom was cracked or split, which did not seem to be of recent date; the
pieces or plank of the box seemed to be all well nailed, as far as I observed ; the plank
at one end of the box, by reason of its thinness and not being nailed near the end as
it should have been, seemed to have sprung a little and left a small crack, increased,
I have no doubt, by frequent manipulations of prying lingers, as I saw many persons
examining the place with their fingers.

Q. 10. Did you see any signs of freshness about the abrasure you speak of, or split,
or anything suspicious in the appearance of the box? A. I did not.

Q. 19. What have you to say as to the truth of the evidence of one \V. A. Forsy the,
given in this cause, about seeing said Montague engaged after night in said office on
said work, and the statements made by him in connection therewith"? A. I have
read the statements made by said Forsvthe, and'know that the same is an infamous
lie.

Q. 20. Did yon in any manner change, alter, or tamper with the ballots or election
returns of said election, or do you know of any one who did, or have you any reason
to believe the same were changed, altered, or tampered with? A. I did not, and
know of no person who tampered with the ballots of said election. I have no reason
to believe they were tampered with, froin the fact that I was in said ofiice every day
and night during the period from the election to the end of the recount.

Q. 21. Did you get the box in which were placed the ballots cast at the Court-House
voting precinct; if so, from whom did you get it? A. I got it from A. C. Orcntts. at
his store, which is opposite the court-house, and delivered the same to the commis-
sioners of election on Friday evening after the election; I assisted in placing in said
box the ballots and tally-sheets; I sealed it securely with mucilage (it being a box
with a lid), and the same was delivered to me in said clerk's office by T. Y. Jariert,
one of the officers of the election.

Q. 22. What examination, if any, was made of said box before said ballots and
tally-sheets were placed in it? A. Some of the officers examined turned it over to
get some dirt out of it but I made no examination of it.

M'GINNIS vs. ALDERSON. CGI

A. P. Fry testifies that he was present when the box was brought
into the court-house by Mr. Quarrier; that no special examination was
made of it by any one before the ballots were put in it, and that it was
sealed up and delivered to the clerk; that his attention was called
to the box while the county commissioners had it under examination,
and it seemed to be in the same condition it was when he first saw it;
that he saw no evidence that it had been tampered with, or anything
to raise a suspicion of that kind (p. 206).

The evidence of Mr. Fry in this matter is corroborated by the evi-
dence of J. H. Fry, J. D. White, and J. A. Jones (pp. 159, 210, 217).

The true explanation of the condition of said box is that it appears
to have been a cracker or cake box. It was the custom or habit of
dealers in that class of goods to open such boxes on the bottom for the
purpose of sampling the goods therein, and it was evidently done so
with this box before the ballots were first placed in it, as is fully ex-
plained by the depositions of A. 0. Urcutt, S. S. Smith, and S. M. Sny-
der, here copied from record in this case.

A. 0. Orcutt, another witness of lawful age, and for contestee, being
first duly sworn, deposes and says:

Q. 2. (By M. Jackson, counsel for J. D. Alderson.) State your name, age, resi-
dence, and occupation. A. A. C. Orcutt; near Charleston, W. Va.; 44 years; mer-
chant and timber dealer.

Q. 2. Please state where you were doing business at the time of the election held
in Kauawha County on the 6th of November, 1888. A. At 205 Kauawha street,
Charleston, W. Va., opposite the old court house.

Q. 3. State who furnished the box in which were placed the tally-sheets and bal-
lots cast at the Court-House precinct at said election. A. It was furnished from my
store.

Q. 4. Who was your clerk at that time ? A. S. S. Smith aiid W. A. Mahan.

Q. 5. Please state what kind of a box it was and where it came from ? A. It was
a cracker or cake box, and it came from my store.

Q. (!. Please describe said box, and where you kept your empty boxes. A. It was
a box with lid fastened on with hinges ; empty boxes were usually kept in cellar un-
der store.

Q. 7. State if your attention was called to said box after it was said to have been
tampered with. If so, where and in what condition did you find itf A. It was at
the clerk's office of Kanawha County. I >^a\v nothing about the box that would
arouse my suspicions that it had been tampered with.

Q. S. State if your attention was called to any splits or marks on the bottom of
said box. If so, what were they ? A. I saw a split in the bottom of the box ; it was
split clear across the bottom; it was an ordinary split in the wood; I saw what they
said was the marks.

Q. 9. Did you see any signs of freshness about the split or mark spokeu of? A. I
did not; nothing that would arouse my suspicions, for I went immediately across to
my store and examined a box of the same kind, aud found identically the same split
and marks on it.

Q. 10. Please state, if you can, from your own knowledge of the trade, how such
splits and marks happen in tbooe boxes ? A. I thiuk it was from sampling or exam-
ing the contents of the box before shipping, by the wholesaler or dealer.

Q. 11. Please state theobject of sampling from the bottom? A. In order to save the
lid, which is put on with hinges.

Q. 12. Mr. Orcutt, if you have no objection, will you please state your politics?
A. I am a Republican.

S. S. Smith, another witness of lawful age arid for the contestee, be-
ing first duly sworn, deposes and says :

Question 1. (By M. Jackson, attorney for Alder.sou). State your name, age, resi-
dence, and occupation. A. S. S. Smith; age, 37; State of' Ohio; in mercantile biis-
ness.

Q. 2. (By same.) State what occupation ypu were engaged in, aud where, at the
time of the election held in Kauawha County on the u'th day of November, 1868?
A. I Avas here in Orcu It's store.

Q. 3. State, if you know, who furnished the box in which were placed the tally-
sheets aud ballots cast at the Court-Honse precinct at said election ? A. I furnished
the box to Joel S. Quarrier.

662 M'GINNIS vs. ALDERSON.

Q. 4. Please state what kind of a box it was and where you got it ? A. It was a
cake box ; I got it out of the cellar under the store-room.

Q. 5. Please describe the size of the box, the kind of material, and its construction.
A. It was about 2 feet long, ten or twelve inches deep, about twelve or fourteen
inches wide, made of poplar lumber ; the plank was about of inch thick, and the lid
was put on with hinges and when the box was iilled with cakes the lid was nailed
down.

Q. 6. Please state if your attention was called to said box after it was charged it
had been tampered with ; if so, when and where and in what condition did you find
it ? A. Yes; my attention was called to it a short time after the polls were counted ;
a day or two after it was reported the box had been tampered with. I suppose it was
in the clerk's office. My attention was called to some marks on the box that looked
like it had been made with an edged tool, and a split in the bottom of the box which
was nothing more than a wind-shake in the plank in the bottom of the box of which
it had been made. The marks to which my attention was called that looked like they
had beeu made with an edged tool were old marks. I saw nothing suspicious about
the box.

Q. 7. Did you observe any signs of freshness about the split you mention? A. No,
sir.

Q. 8. State if you made any comparison of the said box with any other box? A.
Yes, sir; I went to the cellar and got another box of same size, made of same mate-
rial, made by the same company or manufacturers, and had been filled with cakes by
the same cake company ; it had the same marks between the edge of the bottom
plank and the lower edge of the end plank, aud the same crack in the bottom of the
box as the box to which my attention was called.

S. M. Snyder, a witness in this cause, being first duly sworn, deposes
and says :

Q. 1. (By M. Jackson.) Was your attention ever called to the box in which were
put the ballots and tally-sheets of the election held at the Court-House precinct at
the election held November 6th, 1888, after it was said to have been tampered with?
A. Yes. On the morniug after the ballots were placed in the clerk's office I went over
and examined the box carefully ; the splits were old, and it would have been impos-
sible to have drawn the nails in the ends of the box without splitting the boards.
There was a mark in the end of the box as though made by some sharp instrument,
but the mark looked old; nothiug fresh looking about it.

Q. 2. Did you see anything suspicious looking or uuusual about said box? A. I
did not.

Q. 3. Please state what kind of a box that was? A. Cracker or cake box.

Q. 4. Have you ever been in the grocery business? A. Yes; about two years.

Q. f\ Please state in what manner boxes filled with cakes or crackers are sam-
pled? A. I understand they are sampled from the bottom, in order not to disfigure
the appearance of the goods, and that they may open up uicely.

See also the deposition of James EF. Fry, p. 210.

At the time the commissioners of the county court took chargo of the
ballots returned to the said clerk's office, viz, on Monday, November
12, 1888, the result of the election in the other counties of the Congres-
sional district was not known at Charleston.

Mr. J. W. Goshorn testifies (p. 193) :

We had not heard from the remote or back counties, and it was confidently be-
lieved that Fleming and Alderson were both elected by good and safe majorities.
There was uo question about the election until the returns came in from these back
Democratic counties, where the Republicans made heavy gains, which was ten days
after the election. Mercer aud McDowell Counties had for years been largely Demo-
cratic. No one could anticipate the results in those counties.

It is apparent, then, that prior to November 12, 1888, no one could
have had any possible motive for tampering with the ballots, nor
could any one possibly guess how much of a change would be required
to affect the result in the district.

It will be observed that no officer or officers who had possession of
said box and ballots, after the same were sealed up and delivered to
the county clerk, were political friends of or belonged to the same po-
litical party as the contestee. The clerk and his two deputies, all Ke-
publicaus, testify that there was no opportunity for the ballots to be
tampered with.

M'GINNIS vs. ALDERSON. 663

Charleston precinct was the last to be recounted. The completion of
this recount disclosed thatthe contesteehad received a plurality of all the
votes cast for Representative in Congress lor that district. When the
partisan and corrupt county commissioners found that contestee was
elected they began to look around for some pretext to deny him the
result of said recount. The subterfuge resorted to as to Alum Creek
would not sufficiently help them. At this point the old marks on the
box were discovered, and that was enough. When this contest was
brought in the evidence to sustain contestant is found in this statement :

W. A. Forsythe, being duly sworn, deposed as follows:

Question 1. State your name, residence, and occupation. Answer. W. A. Forsythe ;
Charleston, W. Va. ; lumberman.

Question 2. State where you were on or about Nov. 6fch, 1888, and what precau-
tions, if any, were taken to protect the ballots and poll-books of Charleston precinct
and Kanawha County, by the county court of said county or by any one else, after
the said general election of Nov. 6th, 188d, and to prevent fraud and tampering with
the returns of said election for said county. State in this connection all you may
know about the same. Answer. I was in Charleston during the election and the day
after election. I think I suggested to several Republicans the propriety of se-
lecting a Republican and a Democrat to take charge of the returns from the several
precincts of Kami \v 1m County until the county court met and not permit the said re-
turns to go into the hands of the county clerk, for fear that he might tamper with or
deface them ; that I talked the matter over from the day after election until the next
Friday. On Friday I was solicited to keep a watch on the clerk's office that night.
On that night I went down to the clerk's office not far from seven o'clock iu the/even-
ing, where I saw the clerk, Joel S. Quarrier, and deputy clerk, Phil. Montague, and
a man I did not know, all in the office. About half past seven o'clock the man I did
not know and Mr. Gashorn left the office. Mr. Quarrier and Mr. Montague stayed on
until nine o'clock or after, when Mr. Quarrier left, leaving Mr. Montague alone in
the office. . Mr. Montague closed the blinds of the office, except one blind which he
left open for a space of two and a half or three inches wide. Mr. Moutaguo sat at a
table in the south room of the clerk's office and seemed to be copying from a book of
record which he had before him on the table. He continued at this until perhaps ten
o'clock or after, when he did something with the book, took it out of sight. He got
up and went to the south side of the room. I didn't see him when he again returned
to the table, until after he had returned and sat down. When I again saw him sit-
ting at the table he had several packages of papers which feeemed to be different in
size and shape from other packages which were lying on the table when I first saw
him sitting at the table. He was examining the first packages spoken of and had a
pen or a pencil in his hand. He examined two or three packages. He finally got up
and shut the blind so I could see nothing more except to distinguish a light in the
room. The light continued to show until eleven o'clock or after. I watched the next
evening (Saturday) until three o'clock in the morning. I saw nothing worthy of ob-
servation. This is all I know. I may state more fully on cross-examination.

This witness is totally discredited in every way possible to destroy
the credibility of a man.

First. Several reputable citizens each testify that they are acquainted
with his reputation for truth and veracity in the neighborhood where
he resides ; that it is bad, and that he would not believe him (Forsythe)
under oath because of such bad reputation. (See Rec., pp. 151), 160, 102,
165, 196, 205, 210, 212.)

Second. Upon cross-examination he is asked to tell to whom he made
known the discoveries of the night. He answers Colonel Pattou, who
was acting as attorney for some of the Republican candidates, and
then admits that Colonel Patton testified he did not remember the
witness telling him of all the details of things that he saw there. He
answers also "Mr. Burlew," another Republican lawyer and c< uu>el f< r
Mr. McGiuuis, contestant. That gentleman testifies (Rec., 4C8) as fol-
lows:

Answer. Shortly afterthe election in Nov., W. A. Fbrsyth told me that he bad seen
Montague, one of the clerks employed in the county clerk's office, quite late in the
evening after dark one night engaged in some kind of work j the shutters were closed

664 M'GINNIS vs. ALDERSON.

ami tlie light was dim ; therefore, Forsyth said he could uot see what he was doi-ug.
I recollect of him saying that Montague wasn't engaged in writing at a. table, as if
doing office work, but seemed to be moving considerable; I know that Forsyth said
in that conversation that he believed That Montague was the man that interfered with
the ballots and packages filed there of the election had in Nov., and that, he did it that
night. He seemed to be quite earnest about it and a little excited; Forsythe with
other Republicans were watching the county clerk's office.

Neither of these attorneys corroborates him, but rather contradict.
Neither of them used the story before the county commissioners to
attack the recount Why?

Third. Mr. Goshorn testifies in respect to Forsythe's statement:

It is a lie made from the whole cloth.
Qrarrier testifies:

I have read the statement made by said Forsythe and know that the same is an
infamous lie.

Both ( f them give other evidence showing that Montague was not in
the clerk's office at the time at which Forsythe professed to have seen
him there. The witness' manner of testifying would destroy his credi-
bility with most honest, impartial, sensible men. Had he seen Mon-
tague tampering with those ballots the town would have known it before
morning. Yet he was never called upon to testify as a witness during
the recount when contestant's counsel were putting before the commis-
sioners all the testimony possible to provide an excuse for them to
avoid doing what the facts of the ballots required render a judgment
which would leave no question as to the right of the coutestee to his
seat.

Montague was never in charge of the clerk's office so as to have tam-
pered with the ballots. Forsythe, even, does not testify to seeing Mon-
tague apparently tampering with the ballots. The ballots were never
tampered with. The recount should stand. Coutestee was thus enti-
tled to the certificate by a plurality of 25 upon the proper returns. We
shall now proceed to show that the honest plurality of contestee should
be largely increased because of the illegal votes cast and counted for
contestant. The latter in his brief says " this case will show about as
many illegal votes cast for one party as the other."

This might be true if both parties had been equally diligent and had
taken testimony as to an equal number of suspected illegal votes. But
contestant, as he says on page 2 of same brief, "relying upon that well-
settled principle of law that the election officers t o whom the law con-
fides the duty of determining who are qualified legal voters are
presumed to have done their duty," * * * has taken but little
testimony and has sought out and charged as illegal voters against
himself only about 200 and took testimony as to the qualifications of not
more than 50 voters. The contestee has found nearly 400 illegal voters
who voted for contestant and has taken a great deal of testimony to
sustain his charges, examining one or more witnesses about each voter.
The number of illegal votes cast for one party will not be shown to be
as many as those cast for the other when such a state of facts exists.
Some of the witnesses contestant called sustained the claims of con
testee. A different reason from that given by contestant clearly ap-
pears for taking little testimony as to a large number of his alleged
illegal voters.

The committee have adopted a queer plan to dispose of the testimony
of contestant sustaining the charges of illegal voting made by him.
For example, they have in many instances made statements of votes
assailed by a particular witness, as if he were the only one who had

M'GINNIS vs. ALDERSON. 665

testified to the illegality of their votes, when iu fact several witnesses
have sworn to facts tending to prove that the voters named were not
entitled to vote. Further along in their report some mention may be
made of other witnesses whose testimony assailed the legality of these
same voters. But it is presented in such a way as to hide or weaken
the force of their evidence.

Jf the purpose of the committee was to discourage and prevent mem-
bers from investigating for themselves, it certainly has been success-
fully effected. Many illegal votes for contestant are refused to be re-
jected, because the witness against them was one of the judges of elec-
tion who received the votes cast by those electors, while the facts to
which he swears are nowhere controverted, but are corroborated by
other witnesses. More than once the proposition is advanced that
certain testimony does not overcome the presumption arising from the
reception of any of these votes, when that testimony is but a part of
a chain of evidence establishing beyond all question that many of the
voters were not legal voters in West Virginia at the time of that elec-
tion. The committee concedes that 13 of the 361 voters directly chal-
lenged by contestee for being illegal were so and were cast for con-
testant.

The names of the 13 are given, and the pages of the record on which
the testimony concerning said voters may be found.

The committee claim that 16 of 50 voters investigated by the con-
testant were illegal and cast for coutestee, and therefore should be
deducted from his total. A fair comparison of the testimony upon
which the 13 are conceded or the 16 claimed with the evidence against
each of 300 others who voted for contestant will show that every one
of them ought to be rejected. Take, for instance, from the table in the
report of " Illegal votes tor Alderson," No. 9, William J. Wyatt (Bee.,
97, 98). This is the testimony of John Buckland:

Question 3. Do you know where the said Win. J. Wyatt voted on the 6th day of
November, 1888? Ans. I understand he voted in Talcott district. Summers Co.. W.
Va.

Ans. to Quest. 4. He lives in Greenbrier district, said county of Summers, and has
lived there all his life.

Ans. to Q. 6. He belongs to the Democratic party.

Ans. to X-Q. 1. I understand he voted there (at Talcott), but don't know it of rny
own knowledge.

Re-ex. Yes ; he lives in Greeubrier, in about 30 yards from the line.

John P. Buckland testifies as to William J. Wyatt :

I doivt know whether ho voted at Talcott or not. My understanding is he voted
there. He always made a habit of voting there.

The committee reject this voter and take 1 from Alderson. Is any
comment necessary?

1. M. A. Bell (Rec., 37, 38) on that list. This vote is assailed by one
of the two Republican judges who permitted him to vote. Jibe question
was as to residence and a county line. Why did the committee violate
its own astute ruling as to the evidence of Mr. Solomon and other Dem-
ocratic judges?

4. Christopher Burns (Eec., 56. 57, 146). A question of the county lines
arises.

This man's vote is taken from Mr. Alderson's majority upon the testi-
mony of George H. Surber, about two brothers, James Burns and Chris-
topher Burns, as follows :

They voted at White Sulphur Springs at said election,

666 M'GINNIS vs. ALDERSON.

They voted theDemocratic ticket. The two Burnses lived in Alleghany
Couuty, Va. He is contradicted by William H. Maun (140) :

I have known Christopher and James Burns for a number of years. I was at their
home some years ago ; was informed by Mr. Burns yesterday that they still resided
at the same place in White Sulphur district, Greenbrier County, W. Va. When I
was at the Burns house I was shown a line between the two counties (Greenbrier,
W. Va., and Alleghany, Va.), and from what Mr. Burns showed me, he lived in Green-
brier Co., W. Va. I am informed that the sons reside in the old home house. I was
informed by one of them yesterday that he did not vote.

By what process of ratiocination did the committee evolve that it was
Christopher not James who should be taken ? Why should either be
selected to be rejected ?

Mr. Mann, who says he has lived in that precinct all his lite forty-
three years was one of the commissioners of election, also said he had
seen Mr. James Burns frequently at that precinct on election days.

10. Hiley Gilpin (Rec., 97). This voter is deducted by the committee
from contestee's majority upon the following evidence of John S. Gilpiu:

Q. Did your son Riley Gilpin vote at Hinton, Summers County. W. Va., on the 6th
day of Nov., 1888 ?-A. I think he did.
Ans. to Q. 3. He was 20 years old.
Ans. to Q. 4. He was a Democrat.

1 1 . Elmore Ross (Rec., 99) goes off the poll for coutestee upon the story
of Mr. W. F. Arter, a lumber dealer, who resides in Cleveland, Ohio, as
follows :

Q. 2. Do you know one Elmer Ross ? Ans. I do.

Q. 3. Do you know whether he voted at Talcott? Ans. I am informed that he did.

Q. 4. Was he entitled to vote? Ans. He was not.

Aus. to Q. 5. He claimed to be a Democrat.

Ques. 1st. How do you know said Ross was not a voter in the county of Summers
at the election held Nov. 6th, 1888? Ans. He came from Texas about the '20 of Nov.,
1887, and the following spring and summer was gathering iruit and berries and hav-
ing his sister to can them to take back to Texas, and said he had no right to vote,
but if here on election day he intended to vote.

Do yon know that said Ross did vote ? Ans. No ; I was not at the election. I have
been told so and seen his name on a copy of the poll-books.

And further this deponent saith not.

W. F. ARTER.

15. Kelly Broyles (Rec., 104), in the same list, did not vote at all. Ac-
cording to his own story perhaps he should be counted for McGjnnis.
The committee say Jacob Judy's vote should be counted for McGiuuis.
As there is a question of a line between precincts it may be it should.
He says " they would not let him vote at Live-say's Mills precinct because
he lived in Falling Springs district." He did not try the latter. u He
did not know the correct location of the line between the two districts."
The committee have compared his treatment with that of the Quicks.
He, in his evidence, says he lived in Falling Springs. W. N. Keai (53)
one of their witnesses and the Republican judge at thatpieciuct, says:

Judy resides farther over in the district (Falling Springs) than the Quicks.

According to Judy's own testimony he was not entitled to vote at the
precinct he went to November 6, 1888.

Rhodes D. Trent (Rec., 89) says he went to the polls "about half after
4 o'clock, or it may have been a little later."

I did not vote,; I went up into the yard where the election was held ; I can't say
that I ofl'ered to vote for this reason, I met Joe Perk and John Vance in the yard
and tht-y told me that I was too late, as the polls were closed. I am a Republican
and would have voted for McGinn is.

He don't say the polls were closed. He was too lazy to go see for
himself. Why should he be counted for any one f

M'GINNIS vs. ALDERSON. 667

Before considering the individual cases of the large number of illegal
votes cast and counted for contestant, a careful survey of the situation
of that part of the district in which the wholesale frauds were perpe-
trated and the circumstances under which they were committed is ad-
visable.

A large number of witnesses have testified in this case in such man-
ner as to make their evidence apply generally to the persons who
voted illegally, as charged, at the precincts of Mill Creek and Simmons
Creek, in Hock district, and at Cross Eoads precinct, Beaver Pond
district, in Mercer County, and at Mayberry and Peerey Bottoms pre-
cincts, in Elkhorn district, in McDowell County, both as to their right
to vote and the person for whom they voted. It appears that the
county of Mercer, and especially that part of it which constitutes the
mining district, lies immediately upon the borders of the State. Mc-
Dowell County is also a border county.

The Norfolk and Western Eailroad is the only thoroughfare leading
into this section of the country, These counties lie in the extreme
southern part of the State and many miles distant from any West Vir-
ginia railroad proper. The only connection possible to be made, by way
of the Norfolk and Western Kailroad, leading from this locality, with
any other railroad is to pass through the southwestern portion of the
State of Virginia. The proof shows that it is but a mile and a half
from Mill Creek voting precinct, 3 miles from Simmons Creek voting
precinct, and not to exceed 7 miles from the most remote of the Mc-
Dowell precincts by the route of said railroad to the Virginia line.
The town of Pocahontas, which has a mining population of not less
than 5,(iOO, two-thirds of whom are negroes, is situated just across
the Virginia line and but 2 miles from Mill Creek voting precinct. A
like proportion of the persons who are employed to labor in and about
the mines in Mercer and McDowell Counties were negroes at the time of
said election. These negroes, so employed, were extremely migratory
and, in the language of iflapy of the witnesses, " coming and going all the
time." None of them hMl acquired, either in Mercer or McDowell
County, residences or homes of their own, or lived in any other than
the tenement houses of their employers. These facts are clearly and
conclusively demonstrated by the copies of the pay-rolls, running over
a period o< twelve months next preceding said election, of all the col-
liery companies in both said counties, and printed in the record of this
case.

The first of the collieries in Mercer County started upon development
after 1883. They were the plants of John Cooper & Co. at Mill Creek,
Freeman & Jones, afterwards the Caswell Creek Coal and Coke
Company, and William Booth & Co., afterwards the Booth-Bowen
Coal and Coke Company. The other mines in Mercer County were de-
veloped at" a later date. The branch of the Norfolk and Western road,
extending from Mill Creek into McDowell County, was not completed
until August, 1888, and none of the collieries in that county began
operations until that time, and but three of them during that year.
There were no negroes in Bock district, Mercer County, or in Elkton
district, McDowell County, prior to these mining developments.

It also appears from the evidence that these various colliery companies
build tenement houses upon their properties to be occupied exclusively
by their own employes; and, that whenever a person was engaged by
them in any of the departments of their busine&s, he contributed to the
rent-roll of such company by occupying one of its tenements. Said
companies kept pay-rolls upon which were entered the names of all per-

GO 8 M'GINNIS vs. ALDERSON.

sons employed by tiic-m and which showed the days or mouths they
were engaged at work for them. It is also shown by the evidence that
there were no negroes Jiving withiu either of the said voting precincls
in Mercer or McDowell Counties at the time of said election who were
not then employed by some one of said colliery companies. It appears
from an inspection of said pay-rolls that every negro who voted at any
precinct in either of said counties, whose vote is challenged by con-
testee and concerning whose right to vote specific evidence was taken,
was employed by some one of said collieries for some time during the
year preceding the election, but none of them, with but three exceptions,
were employed in all the cdlleries taken together for the whole of the
twelve months.

All of these negroes who are charged to have voted illegally at one
or the other of these precincts came direct from the State of Virginia
or the State of North Carolina when they entered the service of those
coal companies. Therefore, if it be true, as the evidence discloses,
thatall the male negroes who were in Rockdistrict of Mercer County and
Elkhorn district of McDowell County at the time of said election were in
the employ of said colliery companies and had been so employed dur-
ing their stay there, and it does not appear from all of said pay rolls
taken together that they had been employed for the period of the twelve
months next preceding said election, it follows, necessarily, that they
had not been in the State of West Virginia during all of that time
and had not, therefore, acquired under the laws of said State the right
to vote at said election.

This argument applies with equal force to the persons hereinafter
referred to in connection with McDowell County, charged by contestee
to have voted illegally at one or the other of said precincts in McDowell
County, and who had not been employed by either or all of said com-
panies for sixty days next preceding said election.

It also appears from the evidence that all of the seven colliery com-
panies i:i McDowell County were owned and re-operated by incorporated
companies ; and, as we have heretofore stated, the law of West Vir-
ginia, in defining the/right of franchise in said State, provides:

* * * Nor shall any person in the employ of any incorporated company, or of
this State, bo deemed a resident of any county, or of any district therein, by reason
of being employed in said connty or district.

It is shown by Samuel Beckett that he was at Simmons Creek pre-
cinct during all the day of said election; that he saw Republican
tickets there on that day and being distributed among the negroes by
Republican leaders and workers, among whom were Mr. John D,
Hewett, a member of the State central committee and of the Congres-
sional and county executive committees of the Republican party, super-
intendent and part owner of one of the collieries ; and Mr. J. B. Kreiner,
book-keeper for another colliery and a Republican campaign orator.
Mr. Hewett admits himself in his testimony that all the negroes in
Rock District were Republicans ; that he knew of but one Democrat
among them, to wit, Pleas. Robinson, and states that 150 negroes, all
Republicans, went in a body with a brass band at their head to within
100 yards of the polls at Simmons Creek precinct, there broke ranks,
and voted. (See p. 454.)

In this connection it may not be improper to remark that it appears
from the testimony that the owners of the collieries, in the vicinity of
all these precincts, and the persons who controlled the laborers, with
power to employ or discharge them, were, almost without exception,
Republicans, prominent and active workers for their party 5 that they

M'GINNIS vs. ALDERSON. 669

employed in tlieir mines negro labor almost exclusively, in opposition
to the general rule in respect to employment of mine labor (for party
purposes 110 doubt) ; that we find the gentlemen before named and other
operators at the, polls on election day distributing tickets among their
employe's and influencing them, challenging white voters, but never once
questioning the right of any negro to vote, and where a negro's vote
was questioned advocating his right to vote. These facts are significant.

The West Virginia law requires the assessors of the various counties
to list for taxation as of April 1 of each year "every male inhabitant
who has attained the age of twenty-one years "

James B. Cyphers, deputy assessor of McDowell County, testifies
that he was very active, careful, and diligent about the listing of per-
sons above twenty-one years of age in the mining section in 1888;
that we went to the collieries and where the hands were at work; and
listed all persons that he could find liable to such taxation, swore the
negroes, and used every possible effort, and yet it appears from his tes-
timony that one hundred and thirty-four persons (and the evidence shows
that they were negroes almost without exception) voted at Peery Bot-
toms and May berry precincts, in Elkhorn district, iu McDowell County,
not listed by him for taxation iu said county (pp. 252-254).

Only eighteen of the persons voting at said precincts, whose votes are
questioned by coutestee, were assessed for taxation in 1888 in said
county, and their names are stated by said witness.

Votea.

In 1838 (November 6) Republican nominee for Representative in. Congress re-
ceived, in Rock district, Mercer County 737

In 1886 the Republican nominee received in same district 121

Increase of Republican vote in Rock district in two years ... 616

Or above 600 per cent. (See deposition of H. L5. Barber, pp., 344,345.)

These men were not assessed, either, because they were not there or
claimed non-residence if there.

The assessor of Mercer County listed of such persons in Eock dis-
trict, in 1888, 61 blacks and 564 whites ; total 625. (See testimony of
W. H. H. Witten, assessor, p. 245.)

Vote cast in Eock district, November 6, 1888, 1,145; number of per-
sons voting, not listed for taxation, 520. But 61 negroes, bear in mind,
were listed for taxation in 1888, and the testimony shows that more
than 600 voted at said election in said district. W. H. H. Witten, as-
sessor, testifies that he was very careful and diligent about the dis-
charge of his duty, and listed, for such taxation, all persons he could
find in Eock district, where the mines were located and negroes were;
that many of them claimed not to live in West Virginia. Negroes said,
u We do not live here. We do not claim this as our home and we do
not pay taxes here." and that they lived in Virginia and paid taxes
and voted there. (See p. 246.)

In 1886 total vote cast in Mercer County was 1, 564

In 1688 total vote cast in Mercer County was 2,777

Increase in two years (nearly 80 per cent.) 1,213

In May, 1889, total vote, cast _ 1,008

Decrease in vote from November, 1888, until May, 1889 (nearly 80 per cent.) .. 1, 169

"From these facts and from the testimony showing that not more than
one in twenty of the male negroes employed in the mines of Eock dis-
trict was married, with a family residing iu said State (see p. 30); that
there were no negroes in said section when the mines were developed ;

670 M'GINNIS vs. ALDEKSON.

that sale! district borders on Virginia ; that there was railroad communi-
cation between said district and Virginia ; that such negro employes
were migratory in their habits, aud invariably claimed Virginia as tbeir
homes, and were sending money continually and going to Virginia
themselves, many of them back and forth ; that they were working some-
times at one colliery, and then at another ; sometimes in Mercer County ;
sometimes in McDowell County, W.Va.; sometimes at Pocahontas, Va.;
it must l>e accepted as true that not only a most inviting opportunity
existed for fraud, and that grossest frauds were committed in the cast-
ing of illegal negro votes in u'ock district, Mercer County ; at Simmons
Creek, Mill Creek, and Honaker's Mills precincts ; at Cross Roads,
Beaver Pond district, Mercer County, aud at May berry and Peery Bot-
toms precincts, in Elkhoin district of McDowell County, at or contigu-
ous to which precincts the mines of Mercer and McDowell Counties are
situated and around, and at which the negro population was on Novetn-
ber6, 1888 ; but also tbat a vast number of negroes voted illegally at said
precincts. In this connection it should also be remembered that the
owners and persons controlling these mines and employe's were almost,
without exception, Republicans (one of them, John Cooper, was chair-
man of the Republican county executive committee, and another, John
D. Hewett, member of the Republican State executive committee), and
took active parts on the day of and before the eiectiou in behalf of the
Republican ticket; and that there is no registration of voters in West
Virginia.

The mine-owners, who were Republicans and employed the negro
miners, were in a position to know all about the residence of their em-
ployes. The contestee offered evidence to prove that a large number
of such employe's were not residents of West Virginia at the time of
said election. If contestee's position and evidence was not true, then
it would have been easy for contestant to show its falsity by pr. ducing
the voters challenged or some one who knew of their residence in the
Stateof West Virginia as witnesses to testify. It is asiguiucant fact that
no such witness was produced, except J.M.Douglas. Mr. Hewett himself,
a superintendent of a mine and prominent in the councils of his party
and an active worker for its success, was a witness, but failed to say a
word to contradict the testimony ot contestee. If the negroes whose
votes were attacked by contestee had been residents of West Virginia
for one year before November 6, 1888, it is probable that they would
have been such residents when contestant took his testimony in rebut-
tal. It is also significant that no one of these negroes was examined as
a witness by contestant. Contestee could not be expected, even if any
of said negroes could have been found by him, to have committed him-
self to the evidence of persons who bad systematically, willfully, and
palpably broken the laws of the State.

J. M. Douglas, a negro minister, could not tell when a single one of
those to whom his attention was called first came to the State, and
he did not show that a single one was a bona fide resident of the State
on November 6, 1888. The fact that he had seen them around there
does not establish that they were residents; and five of the persons
whom he states to have lived in Mercer County at the time of the elec-
tion are proven to have voted in McDowell.

It is not important to the contention made by contestee concerning
the negroes who voted in these counties whether or not the Republican
mine-owners were privy to the casting of illegal votes by negroes. Mr.
Hewitt shows that there were a large number of negroes who were not
legal voters in said counties at the time of the election; and the proof

M'GINNIS vs. ALDERSON. 671

discloses that the negroes were determined to vote, whether entitled to
do so or not, as was naturally the case; and illegal votes would have
been cast by negroes in these counties even if the persons on hoth
sides having in charge the campaign had united in a common effort to
preserve the purity of the ballot.

For the purpose of abridging the abstract of this testimony in regard
to each case, let us say:

First. That each witness testifying in regard to any of the alleged
illegal voters of these two counties testifies that he is a negro, and a
miner or laborer by occupation, unless otherwise expressly stated.

Second. That all of the alleged illegal voters are shown to have voted
at the respective precincts at which they are charged to have voted by
the poll-lists (pp. 252, 254, 338, et seq., 350.)

Third. That the charge in regard to each is that he was not a resident
of the State of West Virginia for one year preceding said election, or
of the county in which he voted sixty days prior thereto, and was not a
resident of State, county, or district in which he voted, unless otherwise
expressly stated.

Fourth. That the names of none of these persons hereafter named as
having voted illegally in McDowell County were upon the assessor's
books of said county (see testimony of J. B. Cyphers, p. 253 et seq.)
except James Hackey, and his name does not appear on the assessors
books of Elkhorn district. (J. D. Christian, p. 360). And that said
Cyphers took the precaution and care to list all male residents over
twenty-one years of age, as above stated.

Fifth. That the contestant was the candidate of the Eepublican party,
and his name was on the liepublicau tickets voted.

Sixth. That the time about which witnesses testify refers to time of
election (November 6. 1888).

Seventh. That in connection with the statement made of the testi-
mony of S. M. Williamson in regard to each alleged illegal voter, con-
cerning whom he testifies, in these two counties, the following facts are
to be applied to each case without further statement thereof, viz :

He was book-keeper and paymaster for Henry Fairfax, who was en-
gaged in grading a railroad from Mill Creek, in Mercer County, to Elk-
horn, and in the building on the line of railroad the flat-top tunnel, from
8th of March, 1887, to August, 1888; and also was grading at the town
of Bluen'eld, in Mercer County, from January, 1888, to April, 1888, for
said railroad; that the labor employed was nine-tenths negroes; that
they were engaged in Virginia, where they lived, by the foremen, in
different counties; their transportation was paid for them to place of
working, and that they claimed Virginia as their home and came for the
purpose ot working on the road ; entry of the date of their employment
was made upon the books kept by the witness, which show the date of
their arrival and the length of time they worked. The voters he testifies
in relation to were brought to West Virginia under the circumstances
above stated, and each was brought inside year of election.

We have not cited the witnesses nor quoted the testimony to estab-
lish the foregoing general propositions in every instance. These prop-
ositions are not controverted, and could not be with the overwhelm-
ing proof there is in the record to sustain them. The committee have
seen proper to ignore them, possibly so as not to call attention to the
strength of the coutestee's case with respect to the multitude of illegal
votes cast for contestant with a brass band accompaniment. The con-
testee proves that 345 illegal votes were cast for contestee. We select
a large number of these which will bear the comparison we have before

672 M'GINNIS vs. ALDERSON.

asserted. In addition to the witness cited in each individual case, all
the surroundings of the voter, which we have fully set forth, must be
borne in mind.
MONROE WOMACH (voter) :

Witness, Solomon (R., 235), foreman Powhattan Coal and Coke Co. Womach
claimed his home in Pittsylvauia County, Va.; came here from Pittsylvania County,
Va., latter part of November or December, 1837; married man; family live there j
never been here ; would send money to them ; voted the Republican ticket at election.
Witness, Williamson (R., 291), book-keeper and paymaster Elkhoru extension. Wom-
ach came from Virginia in May, 1888, and commenced work for us on Elkhorn exten-
sion ; name on the poll-books.

SAM AKERS:

J. H. Clare's testimony (p. 250) shows he was a young man and his home was in
Virginia. M. C. Franklin (p. 334-5) shows he came from his home in Franklin
County, Virginia, to McDowell County, and commenced to work for the Houston
Coal and Coke Company April 23, 1888.

JOSEPH BALLAKD:

First came to W. Va. from North Carolina in March, 1888, and stayed two days and
returned to North Carolina, came back again in April, 1888 (L. D. (Solomon, p. 234).
He worked for Houston Coal and Coke Co. (Franklin's testimony p. 334-5.) He
voted the Republican ticket (pp. 350, 235). Returned to N. Car. after election ; not
been back since.

M. C. BOTKIN, white :

It is shown by L. D. Solomon (p. 235) that he is a white man ; lived with his family
in Pocaliontas, Virginia, until January or February, 1888. By J. H. Clare (p. 250)
that he had lived with his family in Pocahontas until nine months before election;
that he was a Republican and voted that ticket.

ANDREW BOLIN:

It is shown by L. D. Solomon (p. 254-5) that he came, in December, 1887, from
Cripple Creek, Virginia, at which place he claimed his home. He voted the Repub-
lican ticket (p. 235).

BOWLES DARBY:

L. D. Solomon testifies that voter lived in Campbell County, Virginia; first came
to West Virginia in August, 1888, and worked at different places until October 2,
!"% when he returned home to Virginia; came again to Elkhorn, October 27th,
1888; that he voted the Republican ticket (p. 234-5). See also J. H. Clare's testi-
mony (p. 250), name on poll-lists (p. 350) is misprinted, " Boleu Darly."

JOHN KIRBY:

Solomon testifies that he is married; his family lived in Virginia, where he had
property, until shortly before election ; he voted Republican ticket (p. 234-5). Com-
menced work for Crozier Coal & Coke Co. January 31, 1888 (p. 363). He told J. H.
Clare he had voted the Republican ticket; that his home was in Virginia, (p. 250.)

WM. LEE:

L. D. Solomon testifies that voter was never in the State of West Virginia until
summer of 1888, when he came from Virginia, where he claimed his home. He
voted the Republican ticket (pp. 234-5). J. H. Clare's testimony as to voting to
same effect, and voter's home was in Virginia, (p. 250.)

Williamson shows that he was brought from his home in Virginia, in March, 1888,
and worked for Mr. Fairfax at Bluetield, Mercer Co.; was one of those who were em-
ployed in Virginia and brought out to work on railroad (p. 2L)1).

WM. MAYS :

L. D. Solomon testified that voter voted the Republican ticket. Came to West Vir-
ginia first in October, 1888, from Virginia, and claimed that his home and residence
was there (p. 234).

JOHN JACKSON :

L. D. Solomon testifies that voter was a married man and lived with his family in
Pocahoutas, Virginia, until about January, 1888, when he moved to Elkhorn. He
voted the Republican ticket (p. 234) ; J. H. Clare testifies that voter's home was iu
Virginia, &c. (p. 250).

M'GINNIS vs. ALDERSON. 673

SPENCER WITCHER:

Williamson (p. 291) came from Virginia December, 1887. The evidence of Mr.
Solomon (p. '2S4), Clare (p. 250), are the same as in regard to Win. Mays, above ; in
addition he was married and lived with his family in Virginia. Solomon is corrob-
orated by Eugene Robertson (p. 358). He never moved his i'amily into West Virginia.

JOHN LOCKETT :

The evidence of Solomon as to this voter is the same as to Win. Mays (above). In
addition, he was married and lived with his family in Virginia (p. 234). Solomon
is corroborated by Eugene Robertson (p. 358).

FRY WADE:

Mr. Clare's testimony (p. 250) is the same as in regard to Robert Jones. In ad-
dition thereto, M. C. Franklin (p. 334-5) testifies that said Wade was a negro, and
came from Franklin County, Virginia, in October, 1888, and entered the employ-
ment of the Houston Coal and Coke Company. In the printed record a typograph-
ical error occurs in saying " West Virginia'' instead of "Virginia," there being no
Franklin County, West Virginia.

ED. WALLER:

In regard to him Mr. Solomon testifies substantially the same as in regard to Wil-
iam Mays (p. 234). J. J. Davidson shows that Waller was employed by the Turkey
Gap C. & C. Co. ; had a family in Virginia, and referred to Virginia as his home at
the time ofthe election (p. 324). Brought his wife to West Virginia in Nov., 1888.

BEVERLY SAUNDERS:

It is shown by Mr. Solomon's testimony (p. 234) that he came from his home in
Virginia and commenced work for the Turkey Gap C. & C. Co. September 5, 1888.

MONROE KENT:

J. H. Clare shows that voter claimed Virginia as his home, and is a Republican
(p. 250). It is shown by Mr. Solomon that tie came from Pittsylvania County, Va.,
the latter part of November or December, 1887, and that he voted and was a Repub-
lican (p. 234).

PLEASANT LEE :

It is shown by Mr. Solomon that Lee came from Virginia the latter part of Novem-
ber or December, 1887 ; claimed that as his home. He commenced work for the Tur-
key Gap Coal and Coke Co. Sep. 10th, 1888 (p. 324). J. H. Clare testifies to the same
facts in regard to him as in regard to John Kirby (p. 250).

WILLIAM NOWLIN:

L. D. Solomon testifies that voter came from Virginia and claimed that his home ;
worked a great deal in Pocahontas, Virginia (p. 235). Mr. Clare testifies in regard
to him the same as in regard to John Kirby (p. 250). W. R. Jacobs shows that he
worked at Pocahontas, Virginia, from February, 1888, to June, following (p. 367).
Mr. Jacobs being clerk of the Southwestern Virginia Improvement Company, doing
business and located at Pocahontas, Virginia.

J. JENKINS:

It is shown by S. M. Williamson's testimony that he came from his home in Vir-
ginia, to work at Bluefield, Mercer County, November 25, 1887, and was imported to
work on railroad grading (p. 290-91).

ED. JOHNSON:

The same facts are shown by same witness as in regard to the last voter (p. 290-91).

ROBERT LEMON:

Mr. Williamson shows (p. 290-1) that he was brought from his home in Virginia
in 1887 to work on the railroad ; that he went home claiming Virginia his home
and again came back to work in May, 1888. Thomas Falconbridge's testimony shows
that he was a Republican, and voted at the precinct; claimed Virginia as his home ;
frequently went home, and was gone two or three months (p. 3i2). Falconbridge
was section foreman, Norf. & West. ; had been foreman, Shamokiu Coal & I oke Co.

DAN. DICKINSON:

Mr. Williamson shows that voter was brought from his home in Virginia to work
on the railroad, and first camo to West Virginia in August, 1888, working at Blue-
fieW, Mercer Couuty (p. 290-91).

H. Mis. 137 43

674 M'GINNIS vs. ALDERSON.

TV. T. SMITH:

J. H. Clarp shows that Smith voted ; claimed Virginia his home (p. 250) ; Mr. Wil-
liamson testifies that he was brought from his home in Virginia to work on railroad
in March, 1888 (p. 290-91); M. C. Franklin shows that Smith is married, had a family
living in Virginia at the time of the election ; that he is a Republican, and com-
menced work for the Houston Coal and Coke Company in April, 1883 (p. 234-5). T.
Falconbridge (p. 213) corroborates above. Smith admitted voting illegally. Ran
away for fear of getting into trouble. Not seen there since.

C. S. CALLAWAY :

It is shown by Mr. Williamson that voter first came from his home in Virginia to
work on railroad in August, 1888, and claimed Virginia as his home (p. 290-91).

DICK WADE :

Is shown by Mr. Williamson to have been brought from Virginia, his home, to work
at Bluefield, Meruer County, in February, 1888 (p. 290-91).

H. 0. PATTERSON:

Is shown by Dr. Jeter to be non-resident, and to have voted the Republican ticket.
He came to Elkhorn in January, 1^88 his family lived in Botetourt County, Virginia.
The doctor knew his lamily in Virginia (p. 294). This is confirmed by Franklin's
testimony (p. 334-5).

JAMES HACKLEY:

By Mr. Franklin it is shown that he came from his home in Botetourt County, Vir-
ginia, in April, 188-*, and commenced work for the Houston Coal and Coke Company,
and was a Republican (p. 334-5). Mr. Franklin was book-keeper in above company,
and a Republican.

JAKE PRILLMAN:

Mr. Franklin shows that voter came from Franklin County, Virginia [misprinted
"West Virginia"] in May, 1888, and was employed by the Houston Coal and Coke
Company (p. 334-5).

GEORGE BROWN:

By W. R. Jacobs it is shown that Brown worked at Pocahontas, Virginia, where
he resided, from November, 1887, to May, 1888 (p. 369). By M. Bloch, that he was
registered as a voter in Virginia in 1888 (p. 369.).

SAM Ross:

It is shown by J.-M. Myles, foreman Cooper Company, that voter was a Republican ;
voted that ticket ; that he came in the early part of the year 1888 fr^m Virginia, where
he claims his home (p. 266-7; returned home to Virginia in December, 1888.

WILEY SMITH:

It is shown by M. C. Frauklin that voter came from Virginia, his home, in August,
1888, and entered the employment of the Houston Coal and Coke Company (p. 334-5).

WM. H. TERRY:

The same facts are shown, as are shown in regard to Smith, above, by same witness
(p. 266-7).

JOHN TERRY:

Substantially the same facts shown to exist as in regard to the last voter by same
witness (p. 266-7). In addition Mr. Solomon testifies that he is a single man, and
came from Virginia in October, 1888 (p. 234).

J. S. WADE:

Williamson shows (p. 291,) that he was brought from his home in Virginia in
March, 1888. In April following it is shown by Mr. Franklin (p. 334-5) that he
claimed Virginia as his home and was employed by the Houston Coal and Coke
Company.

WM. DAVIS:

Mr. Bloch shows that voter was registered as a voter in Virginia in 1888 (p. 369);
it is also shown by R. J. Jennings (p. 369-70) that he resided in Virginia during the
twelve months. It is shown by B. F. Hodge voter resided in Pocahoutas, Virginia,
shortly before July 1st, 1888 (p. 370). Mr. Hodge was mayor of Pocahontas.

M'GINNIS vs. ALDERSON.

675

J. H. TATE:

It is proven by Thos. Falconbridge that Tate voted the Republican ticket, that he
came direct from Pocahontas, Virginia, where he lived, and commenced work August
23, 1838, his home being previously in Virginia (p. 312).

WESLEY WAGNER: '

J. C. Freeman (pp. 371-2), testifies that Wagner voted at this precinct; was a
Republican, and had not been in the State for twelve months; having come first in
February, 18=8.

These voters names are all found on the poll-book of Perry Bottoms
precinct. Taking into consideration the facts proved generally per-
taining to these voters and those relating to them individually and we
have satisfactory proof that these 36 votes should be deducted from
contestant's vote, thus increasing Alderson's plurality by that number.
Starting then with his majority of 7 on the corrected returns, adding
the 13 illegal votes conceded and this illegal 30, and we have 56. If
we deduct from this the 16 claimed by the committee to have been
illegally cast for contestee and he still has 40 plurality before proceed-
ing to consider some 300 other illegal votes cast for contestant. From
this time on we shall give only the names of such illegal voters, the
names of the witnesses, pages of the record on which their testimony
is found.

Maylerry precinct, poll-list of 350.

No.

Voters.

Witnesses.

Page of
record.

Robert Law

R. L. Weaver

283

Lewis Law

...do

283

123

T. H. Moselv (misprint, Mosen)

283

William Price

J. H. Clare
Wm. Block

250
369

Abo Helm

Win. Williamson

290

Marshall Clark

290 299

4
20

Thomas Clark i
M O Clark

(J o

290-299
290 299

G. W. Wilson

.. do

290-299

129

292

....do

292

R. L. Weaver

283

Mason Tbor-frton

S. Bechek
S. C. Bernheim

330
432

S. M. Williamson

290 291

Green Scott

Williamson

290

Block

369

124

Laz Dillard

Clare

250

Weaver

282 283

Alex. Stokes

Clare

250

Falconbridge

312

250

312 313

126

J. W. Marshall*

Clare

250 251

Weaver

282

Williamson

299 291

Falconbridge

312, 313

Wm. Old (misprint, Oes)

Solomon

234

312

100

Win. Hardy

...do

312

Clem Green

...do

312

Wm. Wooton

do .

313

Wash. Hardy

do ...

312

120

Thomas Chanler

234

290

Jacobs

367

Block

369

M. Robinson

290

Fiilconbridsre ...

312

*~So one can examine the testimony in this cage withontbeing convinced beyond a reasonable donbt
that the vote shonld be rejected from contestants ; yet the committee have overlooked it, along with
many others etrually as well impeached. This instance will do for the comparison heretofore sug-
gested.

676

M'GINNIS vs. ALDERSON.

Mayl)erry precinct poll-Hat of 350 Continued.

No.

Voters.

Witnesses.

Page of
record.

41
33
75
53
42
102

Henry James

Hardy Green *

A. L. Calhoan

Geo. Helm

Geo. Clark

Albert Clark

Jeff. Shelton

Williamson

Falconbridge . . .

...do

Williamson

C. E. liusinisell.

C. E. Goodwin

Bechet ...
Bernbeim .

Young

Pay-roll - .
...do

291
312

312,313

312,. -513

290, 291

327

229, 230
432

308, 309
303
329

* This man confessed that he had voted when he had no right to, and ran away to avoid trouble and
has never been back since.

Here are 33 more illegal votes proven to have been cast for contest-
ant. Their rejection increases the plurality of coutestee to 73. Hav-
ing established the election of the sitting member beyond a reasonable
doubt, the only illegal voters hereafter cited out of some 146 others,
which are clearly proven to have been cast for contestant, will be such
as afford striking instances lor the comparison with tli3 findings of the
committee. We shall give the references to the particular testimony
in each case, again calling attention to the general testimony which
must be applied also :

Mercer County Mill Creek Precinct.
Voter. Record.

173. William Brown 108,266,267, 302, 291,366

186. E. J. Kinsey ? i>77 ~ m . ?n7

104. A.F.Kinsey ] 277,303-307

14. Milton Otrey 277,284,303

209. Armistead Otrey 277, 284, 287,307

23. Ambrose Mills ! 287, 303, 307,368

145. David Sales 277, 287,289

97. Charles H. Howard 284, 291,303

34. Charles Johnson 290,362

214. John Saunders 312,313

31. James Jarvis 287, 303-305, 384-385

48. Tom Morton 303-307,368

61. Moses Johnson , 285, 303-307

141. Silas Johnson*

55. Bullet Smoot*

77. Peter Parker*

62. Elijah Perkins* :

26. Greeu Sheppard*

144. Granville Toler*

182. Philip Turner*

112. William Anthony*

117. Jerry Richardson 284,290-291-292,302-305-306

74. George Shazier 284

211. Thos. Saunders 284

16. J. H. Bramwell 234,285,307,335,353

170. DukeCobbs 284,302-307

Wilson Booker 303-306-307,321

Henry Woodson 290-321

Wm. Estis 304,322

Green Shephard 268,306-307

Keaton Winston 284,290-291-292,304-306-321

* The same witnesses testifying as to Moses Johnson testify substantially the same
as to these voters, only differing in regard to dates. In addition, R. W. Jacobs tes-
tifies in regard to the last (Anthony) that he worked in Virginia during the month
of December, 1888. In regard to Bullet fenioot, M. Block testifies he was registered
as a voter in Virginia for 1888 (p. 369).

M'GINNIS vs. ALTJERSON. 677

Simmons Creek Precinct.

Satnuel Willburn 229,230

John L. Smith 359

York Scales 229,230,338

Caleb Wilcher 229,230,338,270,271

J. D. Holland 229,230,271

Geo. Price 229,230,338,270,271

James Hackney 229,230,338,270,271,369

Harris lioyd 229,230,338

Willis Hayden 229,230,338

George Williams 304, 307, : J ,69

Chas. E. Hallowell 229,230

King Lee 230

John Crenshaw* 36H

Ernest Freeman, alien 265

Thomas Hightower 273,275,289

Chas. Polk 275,302,307,368,369

James Cook 2b2,359

Cross Roads Precinct, Beaver Pond District.

David M. Jones 239,290,291

G. B. Smith 239,240,290,291,332

James Glover 239,240,243,331,354

Ben Perry 239,240,354

Hannibal Smith 239,240,258,354,355

James Weaver 239,240,290,291

C. M. Spencer 239,240,290,291

W. H. Smith .239,240,290,291

Chas. Lee 332,354,356,431

Oak Vale Precinct.

Isaac Porterfield 248,337,346,347

George Saunders , , 248,256,237

Thos. Saunders 248,256,237

James Wall 248,249,346,347

These 61 illegal votes cast for contestant should be deducted from his
vote, which increases the certain plurality of the sitting member to 134.
There are still a large number that should be treated in the same way.

Monroe County.

Alexander Haines, felon ., 380

W. L. Ballantine 375,376, 377

James McDaniel 378

Philip Williams 373,374

Nicholas County.

W. E. Camp 116,117,386

George A. Rennick 392,393,394

J. A.Martin (five witnesses) 381,382,385

James Lea (five witnesses) 3i-9, 390

A. L. Godfrey (four witnesses) 390,391

J. H. Props (three witnesses) 386,387

Maleigh County.

James Kidwell (Ridwell) ...395,396,399,400

Wm. Kidwell (Ridwell) 395,396,399,400

George E. Fisher 395,396,398,399

James C. Maynor 398,399,400

Clark E. Stover 397,398,399,400,401

* Also pay-rolls.

678 M'GINNIS vs. ALDERSOK.

Summers County.

Anthony Rollins, J. B. Chapman, W. M. Wright, G. W. Given, H. D. Rich-
ards, Robert Brown, Wash. Jackson, Howard White, Wash. Carter, J. W.
Wood 404, 407, 408,413, 414

L. L. James, S. D. Henderson, Peyton Williams 404, 405, 4U6, 407, 40d, 413, 414

Tom Worley, Robert Berkley, Robert Carter, Wyatt Wingfield, Elijah

Berkley 405, 406, 407, 408, 413, 414

A. L. Moody, John Johnson, Powell Booker, Wash. Taylor, Jos. Smith, D. T.

Nicholas, Lewis Lee, and Lewis Paine.

By L. T. Marshall, that said voters, except Powell Booker and Wash. Taylor were
brought from Frederick's Hall, Virginia, on March 8, 1888, where their homes were
and where they lived. Said Booker and Taylor came from Kentucky inside of the
year preceding said election ; that all of said voters were negroes and laborers on the
construction force of the C. and O. R. R. at time of said election ; they lived in a
box-car wherever they stopped along the line (p. 410). By G. D. Haynes and N. J.
Lute that same facts existed as to these voters as to L. L. Jones (pp. 405,-6-7). By
E. H. Peck and Walter Bonde (see note pp. 404,-7-8 and pp. 413, 414).

In this county the illegal voters are grouped together because the
testimony so groups them. The committee speaks of this evidence as
wholesale. It is appropriate that the testimony should be of the same
character as the frauds perpetrated. Careful scrutiny will show no
defect in the proof that at least 26 illegal votes were cast in this county
for McGinnis.

Upahur County.

Andrew Grubb 415-17-20-22

B. W. Phillips 417-20

E. L. Smith 41G-17-18-21

Webster County.

Wm. R. Hosey (five witnesses) - 424-25

W. A. Gawthrop (four witnesses) 424-25

Kanawlia County.

Obadiah Bayes, Thomas Bayes, Rhodes Bayes 216,223

Lemuel Stricklin 188.215-216

Albert Ross 187-9,203

We have now shown that the sitting member has a clear plurality of
at least 174 votes. To reach this conclusion we have not claimed for
him the benefit of a large number of illegal votes cast for contestant,
and fairly proved. We have insisted upon no technicalities to enable us
to effect this result. We submit the passage of the following resolutions
as substitutes for those recommended by the committee.

Resolved, That James H. McGinnis was not elected as a Representa-
tive in the Fifty-first Congress for the Third Congressional district of
West Virginia, and is not entitled to a seat as such Representative.

Resolved. That John D. .Alderson was duly elected to the office of
Representative in the 'Fifty-first Congress for the Third Congressional
district of West Virginia, and is entitled to retain his seat as such
Representative.

JOS. H. OUTHWAITE.

C. F. CRISP.
CHAS. T. O'FERRALL.
LEVI MAISH.
L. W. MOORE.

JOHN M. CLAYTON vs. 0. E, BBECKINPJDGE.

SECOND ARKANSAS.

Clayton served a notice of contest on Breckinridge, charging that the
result of the election was obtained by ballot- box-stealing, intimidation,
and false counting, and took some testimony, but while still in process
of taking testimony he was assassinated by some one. A subcommittee
of the Committee on Elections was appointed to proceed to Arkansas
and take testimony "in regard to the methods of said election, to the
contest, and all events relating thereto or arising therefrom after said
election, and as to whether the contestant or the contestee, or either of
them, was lawfully elected."

Acting under the terms of the resolution, the subcommittee took testi-
mony in regard to the killing of Mr. Clayton, and a number of other
murders and disturbances alleged to have been connected with the elec-
tion or contest, and a discussion of the facts of these cases will be found
in the report. Upon the question of the contest proper, the committee
find that by counting the votes in the Plummerville box, which was
stolen, as they are proved in the evidence to have been cast, the majority
of Breckinridge is considerably reduced, and that the remainder of his
majority is overcome, and a majority shown for Clayton by rejecting the
returns of other precincts proved to be fraudulent, and counting the
votes proved aliunde.

The minority find that, except as to Plummerville, the evidence is
insufficient to establish the charges, but that, even if the testimony of
the voters who testify as to how they voted is to be believed, all the
votes in the boxes attacked, which are not proved to have been cast for
Clayton, should be counted for Breckinridge. This rule should be ap-
plied because of the unfairness of the investigating committee in not
taking the testimony of the voters who voted for Breckiuridge, as well
as of those who voted for Clayton, and because this is not a contested
election case, and the rules of evidence established in contested election
cases do not apply.

The resolutions presented by the commit ee, declaring that Clayton
was elected and recommending that on account of his death the seat be
declared vacant, were adopted by the House September 5, 181)0, by a
vote of 105 to 62. The debate will be found on pages 9559 to 9751 of
the Kecord.

679

680 CLAYTON VS. BRECKINRIDGE.

(1) Effect of court trials.

The result of a trial in a criminal case where parties were charged
with election frauds is not an adjudication binding on the House in a
case involving the same frauds.

(2) Impeached returns.

When returns are impeached they can not be received for any pur-
pose, but only those votes proved aliunde can be counted.

" If the returns have been falsified by the election officers it is a well-
settled rule 'of law that they cease to have any prima facie effect, and
each party can only be credited with such votes at the box in question
as he may show by other evidence. This rule is one of long standing.
It works no hardship upon contestee which does not fall as heavily on
the contestant. The contestant is required in the first instance to show
the fraud in the return, and then must follow that up by proving his
vote; or, in some instances, the proof of the fraud is connected with
the proof of his vote."

(3) Estoppel by swearing in of contestee.

3So sort of estoppel can arise from the fact that contestee was sworn
in with other members at the beginning of the session.

AUGUST 5, 1890. Mr. LACET, from the Committee on Elections, sub-
mitted the following report:

A subcommittee was appointed to take testimony in this cause, con-
sisting of Messrs. Lacey, Cooper of Ohio, Bergen, Maish, and Wilson
of Missouri. Most of the evidence was taken by them in Arkansas.

After the evidence had been reported, the case was argued before the
full committee. We will endeavor to embrace the action of the full
committee and of the subcommittee in one report.

At the November election, in 1888, Hon. C. K. Breckinridge, of Jeffer-
son County, Ark., and Bon. John M. Clayton, of the same county, were
the nominees of their respective parties for Representative in Congress
from the second Arkansas district. Major Breckinridge, the Dem
ocratic nominee, was a member of the Fiftieth Congress, and was well
known in the district and in the nation at large. Colonel Clayton, the
Republican nominee, had been sheriff of his county and State senator,
and was well and favorably known in this district. Colonel Clayton
was a vigorous and skillful campaigner, and the interest attendant
upon a Presidential election and the uncertainty of the result excited
active efforts, and rendered the return of Major Breckinridge uncertain.
The result in the gubernatorial contest, in September, previous, when
the Farmers' Alliance or "Wheelers" had nominated a ticket which
was indorsed by the Eepublicans, and at which it was confidently
claimed that the fusion ticket had been elected and counted out, had
excited high party feeling. The fact that Norwood, the fusion candi-
date, had run ahead of Eagle, Democrat, for governor, by 3002 votes
in the district led the Eepublicans to hope for and the ^Democrats to
fear the result.

Charges of fraud in the September State election were freely made,
and Federal supervisors were selected to watch the election and returns
at the November election.

The contestee received the governor's certificate by a majority certi-
fied as amounting to 846, and has not only taken part in the organiza-
tion of the House, but has during this contest filled the exalted place
of a member of the Committee on Ways and Means. It is undisputed
that between 400 and 500 of Clayton's majorities were lost to him by
the forcible stealing of a ballot-box, and that the results were certified
by the governor with this box wholly ignored. These facts would reduce
the claimed majority of the contestee to somewhere between 300 and
400. The men who stole the ballot-box were white men, whose faces
were partly masked. That there was a very large majority for contest-
ant in the stolen box is nowhere denied.

681

682 CLAYTON VS. BRECKINRIDGE.

The contestant charged very many frauds and irregularities in the
conduct of the election, and the contestee denied the same, and they
proceeded to take testimony to prove up their allegations.

The Plum mervi lie stolen box could not well be disputed, although at
the September election, where there were no Federal supervisors, and
where the judges were all Democrats, the vote was returned as giving
a Democratic majority of 76.

Couway County was the most excited scene of the contest, and the
methods of the election and the dangerous piactices there used have,
in the light of the subsequent events attracted the attention of the
nation. Before the September election Conway County was well known
to be strongly Republican. The county officers were all Republi-
can. An organized effort was made to carry the county for the Democ-
racy. One Stowers, who had recently come from Mississippi, organized
a militia company, which was not only armed by the governor but fur-
nished with an abundance of ammunition. It was composed exclusively
of Democrats. The report was current that it was organized to advance
the interests of the party to which all of its members belonged. The
Republican majority in the county was largely composed of colored
men, who became timid and fearful that these arms were to be used at
the election, and the belief became prevalent that force and fraud were
to be used to carry the county agaiust the unquestioned majority of
Republican voters,

At Plummerville, which was the Republican stronghold, Democratic
judges and clerks obtained control of the election, and at a previous
election an attempt was made to knock over and steal the box by Dem-
ocrats in the room, one Dr. White actively participating in the at-
tempt. On that occasion the lights were extinguished with the excep-
tion of one, and the attempt to prevent the counting of the vote was
defeated by the one light being sufficient to enable witnesses to identify
the wrong-doers. This wrongful attempt was made wholly by Democrats,
and in view of the previous frauds the Republicans entertained and
expressed great fears of a theft of the ballot box in November. Boxes
had been stolen in other counties at the September election, the thefts
in every case inuring to the benefit of the Democracy, and it wa.s but
natural that a crime of this character should be anticipated and feared.

M. D. Shelby obtained the office of sheriff of the county at the Sep-
tember election, and had entered on his duties before the Congres-
sional election. He professed much anxiety to have "a fair election
and an honest count" at Plummerville, and for that ostensible purpose
appointed from 12 to 20 deputy sheriffs, all Democrats, to attend, and
see that such a desirable result might be accomplished. lie appointed
as deputy at Plummerville one of the men who attempted to steal the
box on ihe OCCUMOU referred to, and one of the others who took part
in this attempt was made one of the judges of election. He appointed
among this list Robert Pate, a saloon-keeper at Plummerville, and Bert
"Wally, his bar-tender, and a number of strong Democratic partisans
from Morrilton, the county seat, which is about 7 miles distant from
Plummerville.

These men appeared upon the scene in time for the opening of the polls,
which, under the Arkansas law, is 8 o'clock a. m. The judges of the elec-
tion consisted of two Republicans and one Democrat. The Democrat,
Thomas C. Ilervey, had been appointed by the county judge in vaca-
tion, and to set at rest all questions as to the validity of his appoint-
ment the county judge had suggested that Mr. Hervey's appointment

CLAYTON VS. BRECHINRIDG3. 683

should bo confirmed by the voters at the time of opening the polls.
Accordingly, one of the Republican judges nominated Hervey as a
judge of the election, and the assembled voters, regardless of party,
voted for him and confirmed his appointment. Mr. Hervey then an-
nounced that this was an attempt to question his authority, and that he
would also submit to the voters who the other judges should be, and
nominated Mr. Hobbs and Mr. Palmer as judges, both Democrats, and
put it to vote, calling for the affirmative, and declining to put the nega-
tive, and at once declared the Republican judges ousted, who had with-
out question been lawfully selected by the county court.

The Republican judges objected to this summary ejectment from
office, and insisted on taking part in the election. The purpose and
character of the deputy sheriffs at once became manifest. They took
the matter in hand, and prevented the two Republican judges from ex-
ercising their rights. The election was, therefore, held by three Demo-
cratic judges and two Democratic clerks. These Democratic deputy
sheriffs, though actively present in the morning and taking part in the
unlawful eviction of the Republican judges, claim to have been absent
when most needed in the evening to search for the ballot-box thieves.
The disappearance of the deputies before the masked men made their
appearance, and the fact that some of them returned in the rain to
Morriltou, about dark, and there changed hats and returned to Plum-
merville, remaining only a few minutes, and disappearing just before
the box was stolen ; the fact that they rode home again in the rain and
dark, one of them losing his hat on the way, very naturally led to the
suspicion that the sheriff's organized posse of deputies were parties or
privies to the stealing of the box.

Mr. Wahl, the Federal supervisor, seems to have been a man of much
nerve and presence of mind; he watched the box constantly, and ac-
companied Mr. Hervey, the same man who had taken part in a pre-
vious trouble about the Plnmmerville ballot-box, and who was one of
the judges, when he took the box to supper. Hervey complained that
Wahl "watched him like a thief," and subsequent events justified Wahl
in his so doing.

The judges separated, and left Wahl and one of the judges in charge
of the box. After dark, some one came to the room where the box was
and, looking into the door, asked if they had commenced counting.
Mr. Wahl answered that they had not. Mr. Hobbs, the judge, whose
back was turned at the time, asked Wahl who that was x and Wahl re-
plied that it was O. T. Bentley.

This same Bentley is still the deputy sheriff of the county, and the
duty of capturing the murderers of Clayton and thieves of the ballot-
box has been largely intrusted to him. He has been in a position to
know all that the governor and other State officials have been doing to
disclose the crimes in Conway County. A few minutes after Bentley,
or the man whom Wahl recognized as Bentley, disappeared, four men
with handkerchiefs over their faces and with revolvers in hand entered
and took the ballot-box and poll-books away by force. Mr. Hobbs says
that they had white faces, and there was no evidence to the contrary.
In the light of these well-known facts it is strange that contestee should
have charged that the ballot-box with nearly 500 Republican majority
was stolen by Republicans. But he does so in his answer in the fol-
lowing language:

I deny that the poll-books and ballot-box were taken by partisans of mine, and
charge that they were taken by partisans of yours.

684 CLAYTON VS. BRECKINRIDGE.

After the contest was commenced, a number of persons were indicted
for violating the election laws at Plummerville, and among them said
O. T. Bentley.

Rewards were offered for the conviction of the thieves, and much ap-
prehension prevailed among them, for, although they manifested but
little fear of the local authorities, they did not relish a contest in the
Federal courts. Mr. Bentley opened up negotiations for a settlement of
the indictments by having the amount of Clayton's majority at Plum-
merville conceded. He assumed to act for the thieves, and was evi-
dently in communication with them. The attempted settlement failed,
and Colonel Clayton proceeded to take his testimony at Plummerville.

However, before proceeding to this part of the transaction, let us re-
turn to some other events.

MURDER OP JUDGE BENJAMIN.

Hon. M. W. Benjamin, a well-known Eepublican of Little Rock, was
sent to Morrilton the day before the election to confer with the Repub-
licans there, and to arrange, if possible, to prevent the anticipated
frauds. His coming was announced, and as he got oif the train a mob
stood ready to receive him. He was knocked down, beaten, and shot
in the head with a leaden ball from what is called in Conway County a
" beau-shooter." These " bean-shooters " are a dangerous device, and,
when used by a skillful hand, may kill birds and squirrels, or even men.
The ball entered Mr. Benjamiu's head over the eye, but did not fracture
the skull. It was cut out by a surgeon.

Mr. Benjamin returned home to Little Rock, complaining of his
bruises and wounds, and, in three weeks after, died of '' heart failure"
produced by the shock, as his physician testifies. Though a large
crowd was present, no one has ever been punished for this crime.

ATTEMPTED MURDER OF SUPERVISOR WAHL.

After the theft of the ballot-box Wahl remained in the neighborhood.
He was an important witness in the Federal prosecutions. One night
he was playing cards in a doctor's office at Plummerville, the same
Dr. White before referred to being one of the players. Wahl changed
places with White at the table after playing until a late hour of the
night. When he had changed his place at the table he was near a
glass door leading outside from the office. Some one shot him through
the door from the outside, inflicting a dangerous wound in his neck
and head. The aim was slightly imperfect, or the ball glanced in pass-
ing through the glass, or he would have been instantly killed. In the
light of these events the temerity of Colonel Clayton in going to Plum-
merville to take testimony is somewhat surprising.

MURDER OF COLONEL CLAYTON.

Colonel Clayton had with him at Plummerville a notary, Mr. Allnutt,
from Morrilton, and also Mr. Middlebrook, a colored deputy sheriff
from Pine Bluff'. His baggage was taken from the depot to the village
hotel, but the landlord, although furnishing room and board to Mr.
Breckinridge's attorney, Armstrong, refused to entertain him, placing
his refusal on the ground of illness in his family. Colonel Clayton then
procured boarding at the residence of a widow, Mrs. McCraven, who
lived in the woods in the outskirts of the town. Middlebrook, the col-

CLAYTON VS. BRECKINRIDGE. 685

ored deputy sheriff, iusisted that there was great danger, aud declined
to stay at Plumuierville, leaving only Clayton and the notary. Colonel
Clayton remained four days, taking testimony and sleeping in a room
which bad no windows.

On the night of January 29, 1889, his room was changed, and he and
Mr. Allnutt were occupying a room on the ground floor that had a win-
dow curtained with calico, a slit of a few inches being open in the mid-
dle of the curtain. After dark Colonel Clayton spent some time in
walking backward and forward in* this room. As the tracks subse-
quently showed, his murderers stood for some time afc the window,
watching his motions. He finally sat down at a table to write, and the
instant that he was seated the fatal shot came crashing through the
window. A load of buckshot penetrated his neck, almost severing the
head from the body.

The State and nation were horrified. Eewards were offered, and the
community at Morrilton, near which the murder occurred, passed ap-
propriate resolutions, but no earnest attempt to aid in bringing the
murderers to justice has been made by the local authorities. The efforts
of the governor have been in vain. Much of the work done has been
upon a mistaken line, and without giving due weight to the suspicion
that should naturally attach to the ballot-box thieves.

The object of the sub-committee was dual, to report upon the issue as
to who wae elected, and to inquire as fully as possible into the murder
itself; aud they took all the testimony available upon both questions.

KILLING OF SMITH. THE NEGRO DETECTIVE.

We may add that two other deaths have occurred that were the proper
subjects of inquiry connected with or growing out of the murder of Col-
onel Clayton. One Joseph Smith, a negro, was acting as a detective
in Couway County, and was killed by a young man named Richmond.
Eichmond was the son ot Kepublican parents, and was abount nine-
teen years old. The grand jury of Con way County refused to indict
him. Ordinarily there would be nothing in the facts aud circumstances
surrounding this homicide to necessarily connect it with the Clayton
case, but the manner of the killing of Smith was involved in much ob-
scurity, and the fact that Smith had been communicating and acting
as a detective with the Pinkerton Agency, and the further fact that
another detective had been driven out of Pluminerville, could not fail
to lead the sub-committee to inquire into and suspect the probability
that the killing of this detective had some bearing on the Clayton mur-
der. The failure to indict young Eichmond had prevented any very
thorough investigation of the facts.

KILLING OF GEORGE BENTLEY.

George Bentley, the town marshal of Morrilton, a brother of O. T.
Bentley, was.suspected of being one of the ballot-box thieves. He was
one of the parties who went from Morriltou to Plummervilleon the night
of the election. He opened communication with the Piukertou Agency,
and during the time he was negotiating to become a Government wit-
ness and expose the guilty parties he too was killed. A strange fa-
tality seemed to attend persons who communicated with the detectives.
He was said to have been accidentally shot by O. T. Beutley. his brother.

There is no direct evidence to show that there was anything criminal
in the killing of Beutley by his brother, as the shooting was done in
the presence of a single witness, Wells, who was also one of the parties

686

CLAYTON VS. BRECKINRIDGE.

indicted for the ballot-box theft; and it was claimed that O. T. Bentley
was handling a breech -loading revolver at the time. It is unfortunate
that George Bentley should have been killed before making the full dis-
closures which were expected, and that the negro Smith should have
been killed while making investigations and reports to the detectives.
In the light of the other murders and attempted murders the coinci-
dence of the killing of these two men can not be viewed without sus-
picion. With all these circumstances disclosed the sheriff' of Couway
County has subjected himself to severe criticism, to say the least of it,
by retaining O. T. Beiitley as his deputy during the whole time that has
elapsed since the murder and during the time when the sheriff was
claiming to be on the hunt of the criminals.

THE HOOPER THEORY OF THE MURDER.

Upon the arrival of. the subcommittee at Little Rock they found
just published dispatches and interviews in which the contestee claimed
that the whole case would be made clear, and it was claimed that a man
named Thomas Hooper, now dead, who recently lived in Los Angeles
County, Cal., had killed Colonel Clayton for revenge. Thomas
Hooper had some difficulty with the State militia during the recon-
struction troubles, and his father was killed in 1868, and Hooper had
not lived in Arkansas for about twenty years. He appears to have en-
tertained personal enmity to Governor Powell Clayton, because of the
transactions of the militia, and had made threats against Governor
Clayton in his conversation with different persons. Hooper died some
time after the murder of Colonel Clayton. His violent talk in regard
to Clayton led one Sater to suspect him of the murder, and he commu-
nicated his suspicions to Governor Eagle in the sumine? of 188!).

Mr. Breckinridge accepted this theory as oue which relieved his par-
tisans in Arkansas from the charge, and on the arrival of the subcom-
mittee at Little Rock they found that coutestee ha 1, in a published in-
terview, announced that the secret of the murder would be made
known. The Hooper theory of the murder had been kept a secret by
the friends of contestee, and was brought to the notice of the commit-
tee after the investigation had commenced. JVIr. Sater was sent for,
and his evidence taken, and telegraphic communication had with Los
Angeles to ascertain whether Hooper had been absent from California
at the time of the murder. Hooper's family returned to Arkansas after
his death and they were examined and testified that Hooper was sick
with dropsy on his farm in Los Angeles County, Cal., in January, 1889.

Reports from Los Angeles to different persons showed that no cre-
dence was attached by the people there to the theory that Hooper had
been away from home in January, 1889. The St. Louis Republic, a
Democratic newspaper of great enterprise, had adopted this theory of
the murder, and had sent a correspondent immediately to Hooper's
neighborhood, and the correspondent telegraphed the result of his in-
quiries. We quote from the record, page 460.

JOHN T. GINOCCHIO.
Direct ex. :

Mr. LACKY. Would it be anything improper to furnish the telegram yon received
from St. Louis in regard to this Hooper matter?

A. No, sir; not if tie gentleman is willing.

Q. Produce it, please. A. I will explain how I came to receive this. I will state
in the evidence of Mrs. Hooper there was some mention, it will be remembered, by

CLAPTON VS. BRECKINKIDGE. 687

her, of names of several gentlemen in Los Angeles, that would corroborate her state-
ment in many particulars ; so I wired the editor of the Bepnblic, Col. Jones, to in-
struct his Los Angeles correspondent to see those parties and see if they would cor-
roborate what Mrs. Hooper stated; he did so, and to-day he sent me the result of that
work. Shall I read it?

Mr. LACEY. Well, if you please.

A. (Readiug):

Los ANGELES, CAL., May 1st.

Careful canvass of the neighborhood of Tom Hooper fails to disclose any individ-
ual who can say positively that Hooper was at home in January, 1889, lint all are
morally certain that he was tkere. For three years previous to his death he suffered
from dropsy and could move ouly with difficulty. Those knowing him think the re-
port of he having murdered Clayton is absurd.

GEORGE W. BARTON.

The governor and Major Breckinridge had been working on this
supposed clue for ten months or more, but had kept it secret, so that
Colonel Clayton's Mends had had no chance to investigate the truth of
it. No one had been sent to California to see whether the story was
true or not and Sater claimed to have had conversations with Hooper
before his death which would arouse suspicion as to Hooper. The
theory was naturally a pleasing one to eontestee, and no cue would blame
him for following such a clue, though the friends of Colonel Clayton
very justly complained that so important information should have been
known for ten months by contestee and concealed from them until the
day of commencement of the Congressional investigation.

Mr. Breckinridge in his argument before the committee says:

He (Governor Eagle) said General Clayton and his brother had had oue of Pinker-
ton's best men there a long time, and were reported to have spent large sums in aid-
ing him; that they, at least General Clayton and the detective, had talked to him
from time to time, and he was satisfied they had done so without reservation.

It would seem that equal frankness ought to have been manifested
in informing Governor Clayton of this important clue.

The adoption of this theory would only, in any event, have partly
solved the mystery, for there were at least two persons present at the
murder, as the tracks of two persons at the window fully showed.

The subcommittee followed up this clue. They summoned Sater,
now in Indiana, and all persons who would likely know if Mr. Hooper
had been in Arkansas at any time during the winter of 1888-'89. But it
clearly appears that Hooper was not only in California, but was ill with
dropsy at the time, and has since died.

No reasonable explanation of the murder of Colonel Clayton appears
except that some of the ballot-box thieves, finding the taking of the
testimony progressing, killed him, and we believe the attempt to kill
Wahl was made by parties to the same conspiracy. No Clayton
militia theory would explain the attempt upon Wahl's life, and the
evidence clearly disproves any such an explanation as to Colonel Clay-
ton's death. .

The necessity for the enactment of some laws which will prevent
ballot-box stealing and murder from conferring a,prima facie title to a
seat in Congress is evident from the result in this contest. Had such
laws been in force as would have prevented the contestee from taking
his seat with such a title, no one would have attempted to confer such
title by stealing the ballot-box.

Evidently ballot-box stealing was looked upon as a joke in that com-
munity until the awful consequences that have resulted have appalled
the good people of the county. It was talked of and laughed about oil
the streets of Plummerville the night of the election.

688 CLAYTON VS. BRECKINRIDGE.

Major Breckinridge, in his conversation with the chairman of the
Democratic committee of the county, and Bob Pate, has given us ail
idea of the jocular view of such proceedings taken by them.

Maj. C. K. Breckinridge:

Mr. McCAiN. I would like to say that I call Maj. Breckinridge without his request.

Q. I would like to have you state to the committee whether you stated anything
during the campaign in 1888, whether you stated just before the election for Congress
in that campaign anything to either encourage or discourage fraud or any kind of
interference in the election. A. The only conversation I had was with Mr. Arm-
strong.

Q. What official position did he hold in the party? A. He was chairman of the
Democratic committee of Conway Co., and I believe when Col. Clayton and I came
to Ft. Hniith I wrote Mr. Armstrong to meet us at Conway, and we all went up to-
wards Morrilltowu together. At Pluinmerville Mr.lP.ate, as I remember, and one or
two others got on the cars. Mr. Pate was the only name I recollect now. Mr. Arm-
strong and I were sitting together and these two gentlemen took seats in the rear of
us. Mr. Pate was telling, as if giving an account of some horse-play, as I understood,
about the ballot-box at Plummerville at the Sept. election which he was referring to
and speaking of it as a joke of some kind. I then remarked to Mr. Armstrong, and
turned around a little so the other two gentlemen could hear what I said, that I had
heard some reports about the ballor-box in the Sept. election, that they were indefi-
nite, and I knew nothing of them, but J had seen some complaints about the ballot-
boxes at perhaps 2 or 3 localities in previous elections, with regard to the county
officers and so on. I called their attention to the fact that in the three Congressional
races I had made before there had never been complaints in any newspaper on the
part of any individual about any precinct in the second Congressional district, or
about any citizen in the second Congressional district, as far as I was acquainted,
with the conversations, and with the public press, and with the talk of the people I asso-
ciated with ; that there might be something or there might be nothing in these re-
ports that I had heard. I had just come back to the State. I had been in the Presi-
dential canvass in the State of New York, and had come back in obedience to a tele-
gram from Mr. Hudson, chairman of the committee, to devote a couplo of weeks to
my district, and I trusted that nothing in jest or otherwise I told him I hoped
that nothing in jest or otherwise would take place that could be susceptible of
any misconstruction in the Federal election about to occur. I told them that of
course they would realize that it would not do to have any performance of that kind.
That if a box was taken, there was, I believe, no instance where a certificate framed
upon such a basis was ever permitted to stand by the Democratic Houst: ; and that
if the House were Republican, of course it would not be permitted to stand in a Re-
publican House in favor of a Democrat. And there was more ; that if my election
should hinge upon any occurrence of that sort, that I could not aiford to take the
certificate. And that, therefore, as there had been some reports the truth of which,
I repeated, I did not pretend to vouch for, and there might be something or there
might be nothing in them for all I knew I said to them and told them I wanted
them to understand I meant that in a different spirit from the laughter they had just
been engaged in that I meant it serious, and under those circumstances did I want
any such thing to occur. That was the substance of my remark and almost the
exact words.

MT. LACEY. Did you think Mr. Armstrong and the party looked upon the ballot-box
steal as a matter of no importance ?

A. By no means.

Q. They were treating the knocking of the ballot-box over and the lights over as a
joke? A. It was Bob Pate who was speaking and telling about it.

Q. I understood Armstrong was laughing about it to Pate? A. Oh, no; Pate was
telling it and they was all perhaps laughing. He was not telling it as serious: he
was telling it as horse-play. I never heard it spoken of afterwards.

INo doubt some of these men would have been deterred from taking
the first step in their crimes if they had realized that murder would be
the end, but they crossed their Rubicon. Breckinridge got the seat in
Congress, and one crime followed in the footsteps of the other. The
least guilty of the criminals dare not expose the more guilty lest the
fate of Clayton should overtake them, and Taylor, one of the parties
who went to Plummerville for the ballot-box, having turned States
evidence, is a fugitive from his State. In fact, the only person who
seems to have been punished by the local authorities is Wahl, the Fed-
eral supervisor.

CLAYTON VS. BRECKINRIDGE. 689

The murderers of Benjamin must be well known, for a large number
of persons were present but they are not indicted, no indictments have
been found under the State election laws for these crimes, the murderer
of Smith is discharged without a trial ; the killing of Bentley is not in-
vestigated, and the only man whose crime has received full attention at
the bauds of the local authorities is Wahl, who was indicted for playing
the game of cards at the time that he was shot. Where public officers re-
ceive their offices as the result of criminal orfraudulent methods of elec-
tions, it is not to be expected that they will render active service in pun-
ishing men who have committed like offenses in other elections. But the
great misfortune is that the worthy and honorable people of all parties in
Gonway County must bear the stigma that such actions, by a few vio-
lent and wicked men, cast over the whole community.

A striking illustration of the cowed and timid feeling of good and
worthy people was shown at Plurnmerville on the day after the assas-
sination of Clayton. We can not believe that the people of that village
all united in sympathizing with the assassins, but yet it appears that
they shunned Clayton's friends who went to Plummerville after the
dead body, and when a few faithful and sympathizing negroes carried
the coffin to the cars there was no one of the town to turnout and mani-
fest his sympathy for the victim, or his abhorrence of the crime.

EFFECT OF THE TRIALS IN THE FEDERAL COURT.

Contestee claims in his application for further time, and also upon
the floor of the House, and more surprising still, his counsel, General Gar-
land, also claims that the acquittal of the judges and others charged
with frauds in this election is a fact binding upon this House and the
committee ; that such result in a criminal case before a jury is prac-
tically an adjudication that there was no such fraud, and that such ad-
judication should be so accepted by Congress. It is a common saying
in criminal proceedings that it is better that ninety-nine guilty men
should escape than that one innocent man should be convicted.

All of the Woodruff County officials who were indicted were convicted.
In fact, all the persons who were indicted were convicted, except the
persons indicted for the crime against Wahl, and those for the stealing
of the Plummerville box. Two persons were indicted and convicted on
one trial, and acquitted on a new trial. - This only shows that the evi-
dence in the cases of conviction satisfied the minds of the jurymen to
the exclusion of every reasonable doubt. Upon the new trial when
there was an acquittal, no one can say whether it was a difference in
the evidence or a difference in the character of the jury. It is suffi-
cient for us to determine this proceeding upon the evidence introduced
before us, without speculating upon the causes 'that might have led an
Arkansas jury to acquit or convict.

The distinction between the rules governing juries in criminal cases
and those prevailing in civil proceedings is well known, and we can not
but express surprise at the persistence with which the coutestee and
his counsel cling to this theory that the verdict of the Arkansas juries
upon the indictments for violating the election law should be treated
as an adjudication that contestee is entitled to his seat. It might as
properly be contended in an action of replevin, brought by the owner
of a stolen horse against a party claiming title through the thief, that
the thief had been able to prove an alibi on a criminal trial, and that
therefore this should be regarded as an adjudication divesting the true
owner of his title, although the owner was not a party to the criminal
H. Mis. 137 44

690 CLAYTON VS. BRECKINKIDGE.

proceeding, and had no right to cross-examine witnesses or produce
testimony in his own behalf, nor to appeal from an adverse decision.

Such a legal proposition could only excite attention by its entire nov-
elty in a court of justice, where rights of property were involved. But
when it is seriously contended that a seat in Congress obtained by fraud
and ballot-box stealing, can not be contested unless the Government
authorities have been able to convict the parties charged upon indict-
ment, we can only express our surprise at the persistence with which
contestee insists upon so evident an error. The rule contended for in
bthalf of contestee does not apply even in small matters, involving
only the rights of property, and to allow the control of the legislative
branch of the Government to be thus decided would be monstrous.
The Constitution, in express terms, declares that Congress shall judge
of the qualifications and election of its members; and the right to ex-
clude from its body men whose title is procured by crime does not de-
pend upon the ability of the Department of Justice to capture and
punish the criminals.

, The receiver of stolen goods, even though innocent of all guilty
knowledge, can not claim title based upon the failure to catch or punish
the thieves. Only the seriousness with which it is urged justifies any
extended notice of so evident an error.

The converse of the contestee's proposition, if he is right, must also
be true. If so, the conviction of Dansby would conclusively invalidate
the Kingsland returns, and the conviction of the various judges who
did not escape would be conclusive against Mr. Breckinridge, although
he was not a party to the proceedings. Let us analyze for a moment
this proposition, upon which Mr. Breckinridge seems to have rested
his case.

Eeed, Lucas, and Blakeley, were indicted for interfering with elec-
tion officers. Their acquittal does not show that the ballot-box was
not stolen.

Hervey was indicted for interfering with the election officers, and con-
victed. This surely does not defeat Major Breckinridge's right to his
seat. White, McCullough, Watson, Dunham, and Palmer were indicted
for conspiracy to murder the Federal witness, Wahl. They were ac-
quitted ; but Wahl was nevertheless shot. How does this acquittal ad-
judicate that the Plummerville box was not stolen ?

Eoddy was convicted of ejecting the Federal supervisors from the
room at Augusta. Is this an adjudication that Clay ton was elected?

Jones, Mann, and Smith were indicted for violating the election law
at Augusta. They were all convicted.

Reed, Ward, Beutley, W. P. Wells, Woods, Heard, and Thad R. Wells
were indicted for stealing the Plummerville ballot-box, and were all ac-
quitted. But it is undisputed that the box was in fact stolen by some-
body. It by no means follows that because the jury acquitted these
men therefore the ballots in the box should not be counted upon proper
proof. In fact, Major Breckinridge in his answer conceded that th&
vote of this precinct should be ascertained and counted.

Ferguson ejected the supervisor at Augusta, and was indicted and
convicted. Is this an adjudication that Breckiuridge was not elected?

Hopkins, Davenport, and Hickerson violated the election laws at
Augusta Township, Woodruff County. They were convicted.

Martin, Higuight, and Anthony were indicted for stuffing the White
River ballot-box and the jury disagreed. Afterwards theywere con-
victed on one count of the indictment, for separating and not making
return and proclaiming the result. They were acquitted of stuffing

CLAYTON VS. BRECKINRIDGE. 691

the box. But some one stuffed the box. These men violated the elec-
tion law, and were convicted. The jury evidently gave them the bene-
fit of the doubt as to who it was that took out Clayton's tickets and put
in Breckinridge's.

We have given the list of cases so confidently relied on as an adjudi-
cation, and it appears that most of these indictments in the United
States courts resulted in convictions.

THE VALUE OF IMPEACHED RETURNS,

Contestee complains that the committee may refuse to accept the
impeached returns as of any validity, and thus work a hardship upon
him.

If the returns have been falsified by the election officers it is a well-
settled rule of law that they cease to have any prima facie effect, and
each party can only be credited with such votes at the box in question
as he may show by other evidence. This rule is one of long standing,
and one of which contestee, as an old member of Congress, must have
had notice. It works no hardship upon contestee which does not fall
as heavily on the contestant. The contestant is required in the first in-
stance to show the fraud in the return, and then must follow that up by
proving his vote; or, in some instances, the proof of the fraud is con-
nected with the proof of his vote.

In the present case the fraud is in a large degree shown by proving
that votes cast for Clayton were substituted by ballots for Breckiriridge,
and in proving the fraud the votes for contestant are proved at the same
time. Contestant is required to go outside of the returns to prove up
his vote, because the judges of the election have falsified the returns.
It is no more a hardship upon the contestee to prove up his vote by out-
side evidence than it is upon the contestant. If contestee's partisans
had perpetrated no fraud, the returns would be accepted as true on both
sides. His friends having falsified the returns and substituted his bal-
lots for those of his opponent, there is no return at all of any legal effect.
He might as well complain of the hardship of being compelled to prove>
up his vote at Plummerville, where his adherents stole the ballot-box:
before the vote was counted. No doubt contestee received some votes
at the boxes where the returns were falsified, which votes he wholly
failed and neglected to prove whilst he had the opportunity in Arkansas.

If the holder of a promissory note alters the note and raises the
amount from $1,000 to $2,000, he is met in court with the rule of law
which prevents him from using the fraudulent instrument in evidence.
It is not even good proof as to the $1,000. The same principle is ap-
plied to fraudulent election returns. Courts can nottake the fraudulent
statements of the election officers and analyze them, and select the true
from the false. The whole stream is sullied by the impurity, and all
that can be done is to reject the returns altogether and seek other
sources of evidence.

ESTOPPEL BY SWEARING IN OF BRECKINRIDGE.

Upon the hearing before the full committee the contestee presented
a brief from ex-Attorney-General Garland. He claims that by reason
of the swearing in of Major Breckinridge at the organization of the
House some sort of an estoppel arises by which no contest can be
afterwards carried on. Such is not the rule as to living contestants.

692 CLAYTON VS. BRECKINRIDGE.

They or their friends are neither required nor permitted to object to the
swearing in of a member who holds the formal certificate.

No estoppel will arise against the dead. Clayton could not object to
Breckinridge taking the disputed seat, No one else had a right to ap-
pear for him. Other members present at the time had no apparent title
higher than that of Major Breckinridge. The House was in the process
of organization, and the members were sworn in by groups. There were
eighteen cases of contest. If it "Was proper to exclude Major Breckin-
ridge because of the contest, the other seventeen contestees would, in
like manner, have been subject to exclusion. Notwithstanding the high
standing of the counsel who makes this singular claim, we can not but
feel that a mere statement of the proposition carries with it its own ref-
utation.

APPLICATION OF CONTESTED- FOR FURTHER TIME.

The subcommittee examined at Little Eock about twelve hundred
witnesses, and there closed the case so far as the evidence in that re-
gion is concerned, but with the understanding that the parties might
take some special testimony at Washington. The day before the com-
mittee left Washington for Arkansas they were notified that Mr. Eowell,
and some other members of Congress, would be examined by Mr. Breck-
inridge, and it was anticipated that they would be called when the sub-
committee returned. The contestee, after returning from Little Eock,
demanded to reopen the case and take the evidence of Governor Clay-
ton and Dr. Taylor, of Arkansas, and also of the voters in several pre-
cincts. To have granted this request fully would have involved the
return of the subcommittee to Little Eock, which they did not think
was proper to do under the circumstances.

After the case in Arkansas had been closed, and the subcommittee
had returned to Washington, contestee then asked to go on and prove
up his votes, in the following language :

He asks, therefore, to prove up his vote at these precincts, provided it is contem-
plated by the committee to refuse the reports of the officials and the findings of the
United States court, which tried and acquitted these officials upon the charge that
they had tampered with the ballots, which court had the ballots and poll-books, and
all other evidence before it. (Rec., p. 379.)

Mr. Breckinridge had expressed a desire to take some testimony at
Washington, and it was announced that the evidence in Arkansas was
closed, but that the subcommittee would hear some further testimony
in Washington. The subcommittee declined to reopen the case as to
witnesses in Arkansas. But Dr. Taylor and Governor Clayton hap-
pened unexpectedly to appear in Washington, and the subcommittee
informed contestee that they would hear these witnesses as their ex-
amination would not involve delay or a return to Little Eock. After
the leave was granted contestee declined to take the testimony of these
witnesses. Dr. Taylor's evidence was assumed to be very important,
but when he happened to appear in the city, contestee no longer de-
sired to take it; and so also with that of Governor Clayton.

He also asked to take further testimony in regard to what has been
referred to as the Hooper theory of the murder. But in the light of the
investigation of this theory at Little Eock, and in the absence of any
new discovery, or claim of anything new on the subject, it did not seem
reasonable to send to California for other witnesses upon that question.
Contestee requested it in his application, but did not show any informa-

CLAYTON VS. BRECKINEIDGE. 693

tion to base any belief that any witnesses in California would testify
that Hooper was not at his home at the time of the murder. There
were at least two of the murderers, as the tracks showed, and the theory
that Thomas Hooper fired the shot at a man whom he did not know,
and against whom he had no complaint in connection with some one
else, whose name and purpose were unknown, seemed very unreason-
able. Governor Eagle, who had attached much importance to the
Hooper clue, after full investigation gave it as his opinion to the sub-
committee that it was unfounded. We quote his language :

As to the other matter of offering a reward for the ballot-box thieves, I want to say,
as I said then, I say now, that I believe, I believed then and I believe now, that the
men who stole the ballot-box were implicated in the murder. I will not state that
it was done with a view of putting Clayton out of -the House of Representatives, or
with a view of keeping him out and putting Breckinridge in; but because they were
conscious, probably, of having committed a crime against the Jaw and that there was
an investigation going on there, and they were feeling that probably they would be
overtaken in the crime and be punished.

If Mr. Breckinridge had any new information which would have jus-
tified the subcommittee in returning to the investigation of this clue
he should have made it known to the subcommittee in his application.

As to Major Breckinridge's claim that he has not had ample time in
Arkansas, we refer to the record of the stenographer as to the ad-
journment. By some oversight this was not inserted in the transcript
and printed, and we here insert it :

At the close of the examination of Governor James P. Eagle, on recall, on the
night of May 8, 1^90, the following proceedings were had, to wit :

Mr. LACEY. Now, gentlemen, are there any other witnesses to be examined?

Mr. McCLURE. I have none.

Mr. McCAiN. We had thought of offering some further evidence, and bringing some
other witnesses, but we have concluded to accommodate the committee as you are
anxions to get away and get back to Washington, and we will say we are through.

Mr. LACEY. We want to take all the evidence you have to offer, and are willing to
stay until you are through, but if you have nothing further to offer we will adjourn
sine die.

The committee adjourned sine die.

It is well to observe,before leaving this branch of the matter, in regard
to the voters in Arkansas and the great desire of contestee, as shown
in his application, to take their evidence, that he waited until he got
1,500 miles away from them before manifesting any such disposition.

DANSBY'S CASE.

In Cleveland County one Dansby appeared at the polls, and, bringing
two shot-guns, announced his purpose of taking an active interest in
the proceedings. He was under the influence of liquor. He threatened
Monk Williams, the Republican colored supervisor, and Williams, under
Dansby's threat, abandoned the polls and did not supervise the count
as provided by law. ,

Dausby is a married man, and his age is given variously by the wit-
nesses, but he appears to be from thirty to thirty-five years old. He is
the nephew of the chairman of the Democratic Congressional district
committee. Mr. Dansby is a strong Democrat, and was a partisan of
contestee. Efrs high connections, instead of being treated as an aggra-
vation of his gross violation of both State and Federal law, is rather
urged as an excuse for shielding him from punishment, and his fine of
$500, inflicted by the United States court, was paid by the chairman of
the Democratic district committee, assisted by Mr. Breckinridge. Mr. -

694 CLAYTON VS. BRECKlNRIDGE.

Breckinridge makes the following statement in regard to the payment
of this fine:

Mr. Dansby's punishment was quite severe, $500 and costs, for an ofl'euse that usually
would not have been punished with 10 per cent, of that amount ; but no particular com-
plaint was made of it. The fact that Hon. J. M. Hudson, chairman of the district
Democratic committee, helped Mr. Dansby pay his fine, is mentioned as very signifi-
cant. It might have been added that I helped Hudson help Dansby. Somebody had
to help Dansby pay his fine or he had to go to jail. Mr. Hudson is his uncle, and
Dansby is a young man and an orphan.

A man of thirty or thirty-five years of age got drunk, took guns to the
polls, and drove away a Federal supervisor from the discharge of his
duty, and made the most outrageous threats against Republican voters.
He was fined $500, and the contestee insists that 10 percent, of that sum
was the "usual "amount, and concedes that the fine was paid by his dis-
trict chairman and by himself. But contestee says that Dausby was an
"orphan." He was a tolerably mature "orphan." Coutestee in ren-
dering pecuniary aid to so old an orphan as Dansby has subjected him-
self to the natural criticism of sympathizing with the act rather than
with the youth and inexperience of the actor. If Dausby's crime had
been against some other law than that protecting elections, we might
well surmise that the party committee and nominee for Congress bene-
fited by the present crime would have hardly felt called upon to pay
his fine for him.

That the nominee of a great political party should accept a certificate
of election to a seat to which he was clearly not elected, wheu the cer-
tificate was obtained by the well-known larceny of a ballot-box, and at
the same time openly aid in the payment of a fine imposed upon an-
other violator of the election laws who had driven an election officer
from his post, and that suqh conduct should not be met with anything
but commendation and approval by his political followers, shows a state
of disregard for the principles of popular government which may well
make us look with apprehension upon the future of our country. That
men may be found lawless enough to commit these crimes is to be de-
plored, but when men of high character and standing complacently
avail themselves of the fruits of such crime and the control of the
National House of Representatives is made to turn upon such methods,
it no longer remains a mere matter of local concern, but arises to the
magnitude of a national calamity.

FREEMAN TOWNSHIP.

In Freeman Township, Woodruff County, no election was held. This
failure was occasioned by the act of the Democratic sheriff in furnish-
ing the poll- books locked up in the ballot-box and with no key. The
Republican supervisor was informed that if he would break open the
box they would hold the election, bub not otherwise, as the act, it was
suggested, involved a penitentiary offense. Though anxious to hold
the election, the supervisor did not deeni it prudent to incur this risk,
and the election was not held. The precinct had been a very close one,
according to the returns at the State election, but the Republicans
claimed that with the aid of proper supervision, so as to insure a fair
count, there would be a good majority for their ticket.

In fact but few Democrats of this precinct appeared at the polls,
whether because they knew there would be no election or not does not
appear, and the proof did not show how many Democrats were pre-
vented from voting at this box by the failure of the election officers to

CLAYTON VS. BRECKINRIDGE. 695

hold the election. Eighty-three persons made proper effort to vote for
the contestant and were prevented by the failure to open the polls. We
attach a list with the other lists in the appendix. This state of facts
raises an interesting question upon the law of elections, to which we
have given some attention, and which, under the peculiar facts of this
case, appears not yet to have been heretofore directly decided. It be-
comes, however, an important fact as bearing upon the issue of a con-
certed plan to prevent a fair election. If this vote claimed be counted
it would only increase the majority of contestant, and its omission from
the count would not change the result, and therefore we do not deem
it necessary to pass upon the question.

Notwithstanding the murder of the contestant, the contestee ap-
peared and took the contested seat. The present case has attracted
national attention, not because it stands alone, as a startling and strik-
ing incident of dangers ahead to our form of government, but because
it appears to be one of the worst of a very bad kind. Other ballot-
boxes have been stolen in other districts, other ballot-boxes have been
stuffed, other returns have been falsified, other voters have been intim-
idated, other political murders have been committed, but now for the
first time a member of Congress elected by a,fair and full majority of
his people has been foully murdered while preparing his case for pre-
sentation to this House, and a new element of settlement of political
contests is Introduced.

In the old days of the code of honor, political antagonists often met
face to face and eye to eye, and sought their adversary's life. This
method of settling political differences has become obsolete, and we fre-
quently congratulate ourselves upon the improved moral tone of our
day and generation. But, never before has a contest for a seat in Con-
gress been terminated by the bullet of an assassin. If such methods
are submitted to in silence, the party benefited by the crime of his par-
tisans quietly and without dispute retaining the benefits of the death of
his competitor, we would find that a new element would be introduced
into our form of government.

Complaint against those who object to fraud and mqrder in elections,
as constituting an assault upon the "people" of Arkansas, is the most
cruel form of attack upon the people of that State. This indirect
recognition of the criminals as the " people " and the constant and re-
peated complaint that reference to such methods is a libel upon the
" people " of any State, coming as it does from persons high in influence
and authority, is calculated to convey the impression that the people
are in general sympathy with such methods, and we protest against it,
and believe that such defense of the people of Arkansas is the gross-
est of libels against them.

696 CLAYTON VS. BRECKINRIDGE.

THE RESULTS.

The following is the vote as returned to the governor :

Counties.

Breckinridge.

Clayton.

Clcbnrne . ...

636

266

Stone

509

Van Buren

661

278

Pone

1,733

890

Conway

1,377

1,337

Faulkner .... . . .. ..... . . .. ... ..............

1,337

1,119

"White ,

1,995

705

"Woodruff.

1,327

1,107

Lonoke .............

1,480

1,106

823

668

Monroe ........ . ..... .............

811

1, 161

Arkansas......

912

1,091

Jefferson

1,953

5,377

Grant

707

208

Lincoln.

766

1,182

Cleveland ~

1,031

403

Total

17 8V7

17, Oil

Majority for Breckinridge .......................................

846

Mr. Breckinridge, by the suppression of the Plummerville vote, was
returned by a majority of 846.

Under the well-settled law, as decided in this House repeatedly, when
a return is found to be tainted with fraud it ceases to have any binding
force whatever, and we must look to other evidence for the vote. A
number of precincts were attacked in the evidence, and in all of them
material changes were shown to have been fraudulently made in the in-
terest of the contestee. Ballots were suppresvsed or substituted, and
if the same percentage of fraud was committed throughout the district,
Mr. Clayton might have had as large a majority as Norwood had over
Eagle in the same counties in September. To have gone through the
other precincts in the same way would have involvedthe examination
of several thousand more witnesses, and a few precincts were singled
out by the parties representing the contestant, and the attack confined
to them.

WHITE RIVER TOWNSHIP, WOODRUFF COUNTY.

The return shows :

Breckinridge 210

Clayton 44

Under the laws of Arkansas, the judges are required to mark a num-
ber on the outside of the ballot, before putting it in the box, and such
number corresponds with the number opposite the voter's name on the
poll-list. In this precinct 62 persons who swear they voted for Clayton,
deny that they cast the tickets numbered as having been cast by them.
The original tickets were presented to them before the committee, and
are shown to be the opposite of what they voted. These 62 tickets
were evidently changed by or with the connivance of the Democratic
judges of the election, and when corrected make a difference of 62 off
of Breckinridge's vote, and 62 to be added to that of Clayton.

These ballots had manifestly been substituted after they were de-
posited, and this could not have been done if the judges had not either
permitted it or committed the act themselves. This change ot 124 in-

CLAYTON VS. BRECKINRIDGE. 697

validates the return. A fraudulent return of this character can have
no effect, and as a matter of law we must deduct from

Breckinridge's reported majority of 846

The votes eo fraudulently returned 210

Leaving a majority of 636

In counting Clayton's vote, 44 votes were credited to him in making
Breckinridge's original majority. The proof shows that he got 62
votes where the tickets were changed, 39 votes where his tickets were
not changed, as shown by the voters themselves, and 5 others where
the proof is that the voters were furnished with and cast Clayton
tickets, and that the voters were Bepublicans. Total vote proved for
Clayton 10G. He has already been credited with 44, so he should now
be credited with the balance, 62. There were also two names of voters
not on the book, who voted for Clayton. We will insert the names of
all these voters in an appendix, which we think will be more conven-
ient for reference than to incorporate them here. Deducting from
Breckinridge's returned majority 64, leaves 572.

COTTON PLANT TOWNSHIP, WOODBUFF COUNTY.

In this precinct there were returned for

Breekinridge 186

Clayton 132

The fact that the ballots were changed after being cast is not only
sworn to by the voters at this precinct, but, in many instances, the bal-
lots introduced in evidence appears to have been folded after they were
numbered. The judges are required to put the number on the ballot
before depositing it, and the numbers in many instances showed that
they must have been written on the ballot before folding, the crease of
folding running through the number on the back of the ticket. This
was utterly at variance with the coutestee's theory that Eepublican col-
ored voters were secretly voting the Democratic ticket. If these men
voted for Breekinridge at all they voted an open ticket.

Deduct the vote returned for Breekinridge, the return being set aside
for fraud, 186; leaving Breckinridge's majority 386.

There were returned for Clayton 132; 48 voters swear they voted for
Clayton, but are returned as voting for Breekinridge; this fraud invali-
dates the return. These 48 votes should be counted for Clayton ; also
104 tickets in the returns proved to have been cast as returned, the
voters being called as witnesses; also 23 voters whose names are en-
tered in the poll-books, and who are shown to have voted for Clayton ;
also 30 voters whose names were not on the poll-books; total, 205. Of
this 205, 132 are already counted for Clayton, leaving to be deducted
73 ; leaving Breckinridge's majority 313.

TOWN OF AUGUSTA, WOODBUFF COUNTY.

The returns show

Breekinridge. 98

Clayton 34

The evidence of the voters shows that 8 ballots were changed from
Clayton to Breekinridge, and 7 persons swear they voted for Clayton,
and are voters, and their names are not on the poll-lists ; 26 persons
swear that they voted for Clayton, and are so returned ; 10 persons are

698 CLAYTON VS. BRECKINR1DGE.

shown by other evidence to have voted for Clay ton, and are so returned ;
also one ticket is shown to have been voted for Clayton, and Clayton's
name afterwards erased, making a total for Clayton of 52. Deduct the
returned vote for Breckinridge, 98; balance Breckinridge's majority,
215. Clayton is already credited with 34. Deduct the difference be-
tween 34 and 52 18. Balance Breckinridge's majority, 197.

RIVERSIDE, WOODRUFF COUNTY.

Returned for Breckinridge 197

Returned for Clayton 59

It appears from testimony of the voters that 29 Clayton tickets were
changed aud Breckiuridge tickets substituted, thus invalidating the
returns.

Deduct vote for Breckinridge, 197 ; majority for Breckinridge, 0.
The 29 persons whose tickets were so changed should be counted for
Clayton ; also 32 others appear and testify that they voted for Clayton,
and their tickets so appear; also 25 persons admitted in the record to
have voted for Clayton, whose tickets are so returned ; also 4 persons
\\ ho voted for Clayton, but whose names do not appear on the poll-list;
also one vote with no ticket preserved in the box; total 90. Already
returned tor Clayton 59; balance to be counted to him 31; total Clay-
ton's majority, 31.

Breckiuridge did not attempt to prove up his vote at these boxes,
but incidentally some of them were proved up, and the lists are at-
tached to the Appendix.

Proved in Augusta for Breckinridge 3

Proved in Cotton Plant for Breckinridge , 1

Proved in White River for Breckinridge 3

Total 7

The balance of Clayton's majority, without taking into account Free-
man Township, Woodruff County, or the Plummerville vote in Conway
County is 24.

HOWARD TOWNSHIP, CONWAY COUNTY.

Total vote for Clayton 560

For Breckiuridge 125

Majority for Clayton 435

Total majority for Clayton in the district 459

There are in addition to this 83 votes which were not cast at Free-
man Township, Woodruff County, by reason of the failure to open the
polls.

The above is the computation upon the settled rules of election law
in this House. We will now state the return upon the most favorable
view that contestee could claim, under the case of Jones vs. Glidewell,
Supreme Court of Arkansas, A. D. 1890. If we were to throw out the
whole vote in the impeached precincts, and inasmuch as Breckiuridge
has not proved his vote there, to ignore the proof of Clayton's vote, it
would show the following results :

Breckinridge's majority , 846

Deduct Howard Township, Conway County, majority shown 435

Majority remaining 411

CLAYTON VS. BRECKINRIDGE.

f,99

Now deduct the vote returned for both parties iu the disputed pre-
cincts :

Precincts.

Breckinridge.

Clayton.

White River

210

Cotton Plant

186

132

Riverside

187

Total

091

269

By thus considering the proof for the purpose of showing fraud alone,
and not for the purpose of counting the votes, Breckinridge would lose
the difference between 691 and 269, or 422, which would leave Clayton
elected by 11 majority without taking into consideration Freeman
Township. But this method, so favorable to contestee, is not the rule
of this House, and we only make the computation in this form to show
that by the most favorable method of calculation the contestee is not
entitled to the seat which beholds, after the proof is adduced as to the
Plummerville box.

We recommend the adoption of the following resolutions:

" Resolve^ That Clifton E. Breckiuridge was not elected to the seat
which he now holds as Eepresentative in Congress from the Second
Congressional District of the State of Arkansas,

"Resolved, That John M.Clayton was elected as representative in
Congress from the Second Congressional District of the State of Ar-
kansas, and because of his death the seat is declared vacant."

The committee do not feel called upon to oft'er any resolution in re-
gard to the " methods of the election " referred to. It is a proper sub-
ject for legislation, but has been anticipated iu the House by the Fed-
eral election law just passed.

APPENDIX.

CLAYTON v. BRECKINRIDGE CONTEST FROM SECOND ARKANSAS

DISTRICT,

LIST OF VOTERS AND THE PAGES OF THE RECORD WHERE THE
EVIDENCE MAY BE FOUND.

WHITE EIVER TOWNSHIP, WOODRUFF COUNTY.

Names of persona appearing on the poll-book of said township who are returned as voting
for Breckinridge who have testified they voted for Clayton.

Page.

1. Anthony, Annstead 17

2. Anthony.J.W; 20

3. Anthony.C.H 21

4. Anderson, Geo 26

5. Antbony.J.T 26

6. Anderson, Lewis 29

7. Anthony, Ruben 32

8. Bledsoe, Wash IstRec. 93

9. Bntler.Frank IstEec. 90

10. Brown,Harry 16

11. Briscoe, William IstRec. 88

12. Boon,Tony 24

13. Briscoe, Ed IstRec. 90

14. Campbell, I&om 1st Rec. 9t

15. Campbell, Albert 1st Rec. 94

16. Carry, Willis IstRec. 90

17. Curry.Bad 27

18. Cnrry.Ike 28

19. Eden.Sam IstRec. 88

20. Eaton.Jessee 18

21. Fulton.David IstRec. 90

22. Felton, William 23

23. Freeman, Rufns 23

24. Greenwood, James IstRec. 87

25. Graham, Armond 25

26. Hodges.Nick IstRec. 90

27. Haigh, Alex IstRec. 95

28. Henderson, J. TJ 22

29. Hughes, Tom IstRec. 90

30. Houston, Henry IstRec. 96

31. Hodge,Nick IstRec. 92

Page.

32. Jones, C.P 16

33. Jones.Jim 21

34. Johnson, Geo 33

35. Montgomery, Geo 14

36. McDonald, Josey 14

37. Minor, Jessee 17

38. McCoy, Allen IstRec. 86

39. McCoy, Ben 86,lstRec. 19

40. McCoy.Levey 20

41. McDonald, Lewis 24

42. McDonald, Mans 24

43. McCoy.Clint 25

44. Magnhs.Frank 28

45. Modre.Henrv 31

46. Miller.Joe 32

47. Murray, Allen 34

48. Nelson.Alex 31

49. Owen, Charles 19

60. Prunty.John 30

51. Roddy.Lewis IstRec. 89

52. Simpson,Ben IstRec. 92

63. Simpson.F IstRec. 95

54. Tbompson.F IstRec. 94

55. Thompson,! IstRec. 86

56. Tucker, Dan 33

57. Vaughn, J. A IstRec. 90

58. Wise, John IstRec. 88

59. Ward.J.H 20

60. Williams, Joe IstRec. 90

61. Warren,lke 21

62. Wright, Alfred IstRec. 95

Names of persons appearing on the poll-hook of said township who are returned as voting
for Clayton who appeared and testified they so voted, or whose votes were shown by other
evidence.

Page.

1. Anthony.Andy 22

2. Anthony, Willis 28

3. Anthony.H.A 32

4. Anthony, Paul 190

5. Anthony.R. B IstRec. 92

6. Bridges, Louis IstRec. 85

7. Butler, H. F IstRec. 94

8. Beverly, G. W 26

9. Beal, S.A 191

10. Corley, Sherwood 1st Reo. 86

11. Corley, Wm 30

12. Conch, Anthony 191

13. Davis,David 27

14. Davis, Wyatt 32

15. Ellis, W. L 191

16. Graham.Sam 40

17. Lowe, Marshal IstRec. 86

18. Martin.J.M IstRec. 89

19. Martin, Sam'l.^ IstRec. 88

20. Martin, Thomaa 22

700

Page.

McCoy, M. W 25

McKenzie, And 29

McDonald, Dan 192

Pitts, Pompey IstRec.

Pussell, R IstRec.

Rozzell.Ed .87, 1st Rec.

Ross, H 1st Rec.

Runyan,S.C IstRec.

Stewart, Sam

Stewart, Joe

Tripp, J let Rec. *

Tripp, I IstRec.

Watson.S IstRec. 95

Williams, Oscar IstRec. 96

Westmoreland, D 26

Briscoe, E IstRec. 90

Briacoe,Wm IstRec. 88

Watson, Gns let Rec. 90

CLAYTON VS. BRECKINRIDGE.

701

Names of persons appearing on the poll-book of said totvnshipwho are returned as voting for
Clayton who were not found, but who are proven to be Republicans and to have been fur-
nished with a Clayton ticket.

4. Young, J.W

5. Ayres,S.E

Page

. 192

Page.

1. Jelks, Rich'd 191

2. Richards, Wm 192

3. Slocura Madorn 192

Names of persona whose names do not appear on the poll-book, but who swear they were at the
election and voted for Clayton.

Page.
15

1. Danshee, "Wash .

Page.
2. Neal, Tobe 96, Istrec. 14

Total number of names on poll-book 257

Return shows Breckinridge 210

Clayton 44

Tickets show Breckinridge 209

Clayton 45

WHITE RIVER TOWNSHIP, WOODRUFF COUNTY.

Names of persons shown to have voted for Breckinridge.

Page. I

1. McNealy, George 656 3. Harris, Kafus

2. Hutchinson, J. A 657 I

Page.
658

COTTON-PLANT TOWNSHIP, WOODRUFF COUNTY.

List No. 1. Names of persons appearing on the poll-book of said township ivho are returned
as voting for Breckinridge, tvho have testified they voted for Clayton.

Page.
68

26 La inter Jacob . ..........

Page.
83

2 Campbell Henry.......

26. Nixon, Dunk

27. Nowlin^, E

28 Phillips James

. 81

5 Copland C E. .......

...., 63

29. Pearson L

6 Chunr D .......

30 Reynolds G

31 Richards G

32 Roland Ruben .

9 Floyd, B

33. Razor Joe

10 Finlei Ben

34. Sloan, Z. L

11. Folsoni, Harry..

35. Sanders, M

12. Greer, "Will

36. Sawyers, G

13. Giles Henry A. .......

37. Smith, Neath

14. Halland, Chas

38. Sampson, Sandy

15. Hibler, Austin .........

39. Turner, Henry

16. Hall, Theo

100

40. Tiggs, Pleasant

17 Hall Sam

18 Hardin Jeff

42. Taylor, L. S

43. Wilson, D. H

20. Johnson K

110

44. Walton, Win

45. "Wilson, Mack

46. "Woods, C

23. Kaiser, John ...........

47. Walker, James

24. Leech. Dan. ..

........ 76

48. Young. Jack...

List No. 2. Names of persons appearing on the poll-books of said township who are re-
turned as voting for Clayton, who appeared and testified they so voted.

Page.
74

18. Chunn Will

Page.
66

2 Ashley H

19. Drnmmoud Pink

3. Brown, R. H

20. Davia J

21 Davis Bill

22. Elmer Bob >.

6. Bostick, Esau ..........

23. Hampton Geo

24 Holliday G

25. Horton B

9. Black John

26. Horton V

'. 67

11 Childers Joe

28. Haskins Pink

12 Chunn R'x

.... .. 96

29 Hall Sain ...

13 Chunn Mark

30 Hancock C

14 Chunn F

31 Hunter A. H

32 Jenkins P

17. Clark, Chas..

34. Jones, Wash . . .

702

CLAYTON VS. BRECKINKIDGE.

List No. 2. Names of persona appearing on Ihe poll books of said township who are
returned as voting for Clayton, etc. Continued.

35. Johnson, J 72

30. Jones,Mat 64

37. Jones, Sandy 77

38. Johnson, Dave 72

39. Jains, Jasper 63

40. King, Geo 81

41 Laird, Jeff 96

42. Lard, Barney 87

43. Lester, Charley 93

44. Leek, J 83

45. Leek, Will 76

46. Locke, Will 65

47. Locke, H 82

48. Lapier, Will 77

49. Locke.Sara 73

50. Locke.Mat 82

51. Lock.Lon 87

52. Lard, Kearney 88

53. Madden, Milton 87

54. McGee.Sam 71

55. Merritt,Nick 82

56. McDaniel, VV 75

57. Mayo.Lee 90

58. Morris, W.A 101

59. McCoy, Sam 80

60. Morris, Alex 67

61. Monroe, Wynn 70

62. McN T eeley, 'Henry 80

63. Nesbitt, Berry 69

64. Nixon.G 80

65. Paul, Aaron 96

66. Philip, Andrew 107

67. Perkins, W 79

68. Pier, W. La 76

69. Perkins, Bob 71

Page.

70. Russell, Joe 75

71. Roberts, Lee 93

72. Roland, R . 101

73. Rogers.Ned 62

74. Slaughter, Bob 66

75. Settle.Ben 66

76. Shelton.Sam 77

77. Summers, W 91

78. Shelton, Jacob. 82

79. Slay. Adolphus 109

80. Sutton, Smith Ben 107

81. Shelton. Henry 94

82. Sledge,Jos 72

83. Sheltou, Frank 105

84. Sheltou, Osborn 93

85. Trent,R 92

86. Thompson, Richard 81

87. Taylor, Nelson 72

88. Taylor.Green 72

89. Wods,Remns 70

90. Williams, Henry 75

91. Walters. Bill 87

92. Woods.Robt 95

93. Williams, Jas 74

94. Williams, Buck 87

95. Woods, Spence 88

96. Wilson, Geo 76

97. Woods, Jeff 108

98. Woods,Dick 81

99. Walker.A 107

100. Woodsmith, Hay wood 89

101. Hollins, W. T 109

102. James.Nill 109

103. Sutton,B.S 107

List No. 3. Names of persons appearing on the poll-book of said township who are re-
turned as voting for Clayton, who were not found, but are proven tobe Republicans and to
have been furnished with Clayton tickets.

1. Ackal, Jack

2. Bates, G. H.

Page.

108

3. Clemings, R. N 108

4. Dossen.J.M 109

5. Featherston, A. G 109

7 Gathing 10!)

9. Hollins, W.P 109

10. Henry, Wm j.. 109

11. Hardin, Henry 109

12. Irwin.P. J 109

13. Irwin.Tobe 309

16. Jenkins.R 109

17. Lard, Barney, No. 2 109

20. Morgan, T.J 109

21. Sikes. W .. 110

22. Slay, Adolphus 110

23. Shaw, Mack 110

List No. 4. Names of persons whose names do not appear on the poll-books, but who swear
they were at the election and voted for Claijton.

Page.

1. Arnold, Peter 83

2. Barnes, Jerry 89

3. Beckham, Rilben 106

4. Clark. Nick 94

5. Chaffln.Geo 103

Page.

Marshal, Henry 90

Otem, Fret-man Ill

Otem, David 112

Reeve, Morrison.

Robin son, A

Runnels. H.R

Simon, J oseph

Slay ton, Lucius

Thompson, Henry

Vincent,.!. M

AVilson, H

Weaver, Claib

Woods, Noah

Woods, Alex

96
99
106
86
98
91
71
78
80
89
96

6. Gregory, Houston 106

7. Harsha'w, J. W 80

8. Hughes, John 88

9. Henderson, Thos 95

10. Jenkins, Paul 92

11. Jarmin, Peter 101

12. Locke, Lew 87

13. Moran, Henry 83

14. Madden, Chris 84

15. Musjjrave, Dock 85

Total number of names on poll-Look 319

Return shows Breckinridge 186

Clayton 132

Tickets show Breckinridge 174

Clayton 134

There are eleven less tickets than there are names on the poll-book.

CLAYTON VS. BRECKINRIDGE.

703

List No. 1 48

List No. 2 105

List No. 8 23

List No. 4 31

Total 207

Below 2

209

Nantes of voters who testify they voted for Clayton and are on poll-list, l>utno ticket in box.

Page. I Page.

1. Buford,Bob 70 | 2. Miller, Calvin 110

COTTON PLANT TOWNSHIP, WOODRUFF COUNTY.
List of voters shown to have voted for Breckinridge.

Hennigdon, James - 678

TOWN OF AUGUSTA, WOODRUFF COUNTY.

Page.

List No. 1. Names of persons appearing on the poll-books of said precinct who are re-
turned as voting for Breokinridge who have testified they voted for Clayton.

Page.

1. Aultevery,^ 52

2. Burfoot, Emmet 45

3. Price, Moses 46

4. Hampton, Sam 47

5. Tames, Napoleon . . .

6. Johnson, Granville .

7. Moore, Thomas

8. Williams, Mose

Page.
49
54
44
47

List No. 2. Names of persons appearing on the poll-book of said precinct who are returned
as voting for Clayton who appeared and testified they so voted.

Page.

1. Bobo.A.E 51

2. Gartner, Warren 46

3. Cook, J. J 55

4. Cook.W.A 55

6. Chambers, W. H 52

6. Derain.C.H 46

7. Davis, William 48

8. Harris, Henderson 47

9. Harris, Tom H 54

10. Hinkston.Geo 51

11. Hnrdy,Albert 48

32. Hamlet, Ike 54

13. Knox,Henry 53

Page.

14. Martin, John 46

15. Malone, William 52

16. Montgomery, C 47

17. Martin, Lewis 56

18. Roddy, Jerry 51

19. Roddy, Alex 52

20. Rider.Ed 57

21. Rodgers.J.H 53

22. Reese, Mark.

23. Williams, Jim..

24. Wilson, H. H...

25. White, Charley.

26. Willis, E.J

48
47
49
52
57

List No. 3. Names of persons appearing on the poll-took of said precinct who are returned
as voting for Clayton who were not found, but are proven to be Republicans and to have
been furnished with Clayton tickets.

Page.

1. Battle, L 57

2. Ford,R.H 45,57

3. Jackson, J 57

4. Kerr.C.M 57

5. Knox,Geo 58

Page.

6. Leacb.D.D 58

7. Lock, Henry 58

8. McGluflm, J. T 58

9. Pettigrew, Dan 58

10. Knox,Geo 58

List No. 4 Names of persons whose names do not appear on 1he poll-books of said precinct
who swear they were at the election and voted for Clayton.

1. Allen, Lewis

2. Cnrry, Dock

3. Chambers, D. W.

4. Smith, Harvey . .

6. Woods,N.W

6. Davis, Win. (no ticket in box).

7. Reese, M. (no ticket in box)

Page.
54
48
48

Total number of names on poll-book 134

Return shows Breckinridge 98

Clayton .... 34

Tickets show Breckinridge 94

Clayton 3.4

704

CLAYTON VS. BRECKINRIDGE.

Names of voters whose tickets were scratched, "but who ewear they voted an unscratched ticket

for Clayton.

Page.
1. J. "W. Nelson 65

List of voters who swear they voted for Breckinridge.

1. d. W. Headea.

AUGUSTA, WOODRUFF COUNTY.
List of voters shown to have voted for Breckinridge.

Page.

1. Henderson, John (convicted of felony) 658

2. Moore, W.M. 660

RIVERSIDE PRECINCT, WOODRUFF COUNTY.

Hat No. 1. Names of persons appearing on the poll-book of said precinct, who are re-
turned as voting for Breckinridge, who have testified they vottdfor Clayton.

Page.

1. Anderson, John 120

2. Be verlv, Henry 131

3. Beverly, A.H 122

4. Barton, Bob 119

6. Campbell, H 62

6. Cole.George 120

7. Corapton, Green 124

8. Eason, John 129

9. Gilchrist, Fred 117

10. Hunt, Jim 122

11. Haywood, Fred 130

12. Henderson, Lewis 119

13. Jones.Ross 117

14. Jackson, Allen 123

15. Johnson, Geo 113

Page.

16. Kendrick, F 116

17. Miller, Joe 115

18. Patteraon.A 124

19. Partee,R.M 118

20. Fanner, Barney 122

21. Russell,E.J 114

22. Russel, Harry 115

23. Rollins, Andrew 114

24. Roddy, Mace 114

25. Haug'bter, Alex 118

26. Simpson, Jim 118, 131

27. Williams, Gus 123

28. Walton, Bew 123

29. Wess, Jessie 132

List No. 2. Names of persons appearing on the poll-book of said precinct, who are re-
turned at voting for Clayton, who appeared and testified they so voted.

Page.

1. Allen, John 120

2. Buggs.Geoige 121

3. Brewster, Tony 122

4. Coy,Hamil 120

5. Cariker, Bill 120

6. Calvin.John 116

7. Cariker, Arthur 124

8. Billard, Allen 131

9. Freeman.Jeff 114

10. Golightly, A. D 113,131

11. Gray.Felix I!i2

12. Jackson, George 119

13. Jones,Mak 117

14. King.Manuel 117

15. Little.Joe 116

16. Morgan, William 131

Page.

17. Massey.E 123

18. Miller; Charles 121

19. McPheters,B.Y 125,133

20. Penn, Christopher 118

21. Page.Monroe 116

22. Palmer, Barney 122

23. Rawlins, Sam 117

24. Redden, Alf 121

25. Redden.Henry 116

26. Roddy, Lewis'. 117

27. Still,Le 130

28. Spiller, Henry 115

29. Tallman, Alf. (no ticket in box) 119

30. Westmoreland, Cland 121

31. White,Jim 131

32. Jones.Ross 117

List No. 3. Names of persons appearing on the poll-book of said precinct, who are re-
turned as voting for Clayton, who were not found but areproven to be Republicans and
to have been furnished with Clayton tickets.

Page.

1. Adams, James 133

2. Austin, Ben 133

3. Bobo.L 133

4. Chassy, W 133

5. Chase, W 133

6. Chase, Asbnry 133

7. Davis, Simon 133

8. Epps, Archie 133

9. Epps, James 133

10. Freeman, James 133

11. Forbes, Lewis 130,133

12. Henry, Clayburn 133

13. Johnson, O.D 133

Page.

14. Morgan, Bunch 133

15. Matheny. Tom 13?

16. Massey, Jack 133

17. Miller; Alfred 133

18. Miller.Louis 133

19. Robinson, Mack 133

20. Roddy, Chas 133

21. Sheppard, Anthony 133

22. Veeder, S 133

23. Wesley. John 133

24. Watson, L. A 133

25. Watson, S. W 133

NOTE. It is admitted of record by Breckinridge that these persona were at the
election and voted for Clayton (p. 133).

CLAYTON VS. BRECKINEIDGE.

705

List No. 4 Names of persona whose names do not appear on the poll-look of said precinct
who sioear they were at the election and voted for Clayton.

Page.

1. Allen, Freeman 121

2. Forbes, Lewis

Page.

3. Roddy.Rance 132

4. Snoddy.J.A 132

Names of voters who voted for Clayton, tut no ticket in box.

Page.

1. Tolman, Alfred 119

Total number of names on poll-book 257

Return shows Breckinridge 197

Clayton 59

Tickets show Breckinridge 192

Clayton 52

There are thirteen less tickets than there are names on the poll-book. *

List No. 1 29

List No. 2 32

List No. 3 28

List No. 4 4

Total . . ,89

PLUMMERVILLE VOTE, CONWAY COUNTY.

Names of persons who have testified they were at the election in Howard Township, Conway
County, Ark., on November 6, 1888, and voted for John M. Clayton; or whose votes

were otherwi^ proved.

Page.

1. Acklin.W.R ........... .-. .............. 197

2. Albright, Henry ....................... 208

3. Alexander, W. M ....................... 482

4. Adams, Willis .................. ....... 216

5. Andrew, Ned ................ 74,lstReo. 457

6. Alexander, Alfred ...................... 266

7. Allen, J ................................ 248

8. Armstead, E ........................... 195

9. Arthur, Charles ........................ 250

10. Anthony, H. A ......................... 240

11. Atkinson, T.J ......................... 489

12. A i-mstead, Levy ................ 1st Reo. 59

13. Alexander, John ....................... 252

14. Alliagton, John

15. Adams, Amos .................. 1st Rec.

16. Addison, J. A .................. 1st Rec.

17. Alexander, Fenton ............. 1st Rec.

18. Acklin, W. R , jr ............... 1st Rec.

J.M.

19. Atkinson, J

20. Alexander, E. D 1st Reo.

21. Ackron, W. R 225

22. Albright, Wm 258

23. Alexander, Henry 245

24. Aaron, Isaac 2c8

25. Brown, W 240

26. Brown.Sam 489

27. Brown, John 209

28. Brown, Cager 1st Rec. 71

29. Biown, Daniel 237

30. Brown, French 457

31. Brown, W. H 459

32. Brown, R.B 197

33. Brown.H. B 216

34. Black, Wash 452

35. Brown, Sam, No. 2 550

36. Black, P. B 1st Rec. 48

37. Black, Wm.. 1st Rec. 294

38. Black, Sylvester 472

39. Black, Robert 247

40. Black.J.B 293

41. Blair, Van 227

42. Berry, Peter 267

43. Bowling, J.M 256

44. Baldwin, Monroe 457

45. Burks, W 244

46 Bailey.Jack 473

47. Bailey,Geo 268,473

48. Bailey, Thomas 1st Rec. 46

49. Blackburn. Wilson 203

60. Belden.Toll 473

Page.

51. Birdie, Morgan 218

52. Bloom, Gus 550

53. Burt, Alex < 199

54. Brot on, James P 1st Rec. 60

55. Bell.Robert 248

56. Booker.Ben 1st Rec. 64

57. Booker, Aaron 271

58. Bradford, John 1st Rec. 61

59. Barnes.Lewis 223

60. Bowsir, F. Pierce 253

61. Bowgan, Isaac 234

62. Blassingame, John 1st Rec. 66

63. Bowsir, James 1st Rec. 81

64. Bradley, Charles 450

65. Bowlin, Jack 236

66. Butler, Harry 1st Rec. 45

67. Byrum, John 221

68. Cox, Albert 203

69. Cox.Garrett 471

70. Cox, Toibert 268

71. Cox, Green 1st Reo. 55

72. Carter, Jonas 1st Rec. 60

73. Carter, Dock 268

74. Carter, Robert 361

75. Carter, Gus 200

76. Carter, Jacob 480

77. Carter, James 220

78. Carter, Dock, N.O. 2 453

79. Cliiton, Henry 253

80. Corupton.D 205

81. Coiupton, John 1st Rec. 68

82. Compton.S.C 1st Rec. 58

83. Cook, Wm 210

84. Clark.Ned 215

85. Clark, David 245

86. Clark, Thomas 447

87. Chanipon, Dan'l 1st Rec. 57

88. Cartwiighr, Geo 204

89. Clements, Jack 477

90. Gulp, R. A 1st Rec. 62

91. Cok-ord. David 476

92. Carrintrton, Satu'l C 256

93. Colcom, R.O 256

94. Chappl.-,E.R 202

95. Coy, Frank 198

96. Chase, Danl 1st Rec. 62

97. Coles. James 341

98. Call, Nelson 243

99. Casu.Mike 241

100. Calvin, John 242

H. Mis. 137-

-45

706

CLAYTON VS. BEECKINRIDGE.

Names of persons who have testified they were at the election in Howard Township, Conway
County, Ark., on November 6, Iddti, etc. Continued.

Page.

101. Cross, William 271

102 Chisom.J. W 1st Rec. 56

103 Chisom, Elijah 52, 1st Rec. 207-550

104 Curl, Fred 1st Rec. 78

105 Childs, Thomas 269

106 Chambers, Jake 240

107. Coleman, H 206

108. Colluin, London _ 2t>5

109 Chism, Berry 550

110. Caraway, G. W 259

111. Duncan, Joseph 1st Rec. 45

112 Durham, Jno 479

113 Durham, Jno. S 253

114' Durham, T.J let Rec. 63

115 Durham, Sain'l A 1st Rec. 70

116 Durham.Wm 253

117' Dean, V.D 211

118 Davis, W.D 259

119 Davis,King 449

120' Davis, J.P 344

121 Davis, John 250

122' Davis, C. W 252

123 Dobbins, Thomas 295

124 Dial,B 551

125 Douglas8,Fred IstReo. 47

126 Douglass, Ned 1st Rec. 76

127. Day, Fountain 249

128 Davie.George 1st Rec. 75

129! Dowdle, George 1st Rec. 76

130 Dowdle. Joseph IstReo. 59

131 Dowdell, Wm 1st Rec. 62

132' Dowdle.John 1st Rec. 60

133^ Dowdell, Mayes ... 270

134. Dill, Thomas 477

135 Dover, M . 226-552

136 Don.luson, R 1st Rec. 48

137. Duckett. Sim IstReo. 50

138. Diggs,W.A 255

139. Devers, Milton 479

140 Dickerson.Dan 207

141. Evans, Elijah 478

142. Evans.Sebe 249

143. Edmonson, Julius 474

144. Edwards, Thomas 212

145. Embry, M 263

146. Embry, J hn 1st Rec. 79

147. Exom, C.L 473

148. Epps.Jerry 208

149. Echols, Robert 552

150. Erwin, Doc 552

151. Fitts, Matt 252

152. Fohter.John 475

153. Foster, Lewis 1st Rec. 51

154. Flake. James 1st Rec. 58

155. Ford, John 1st Rec. 48

156. Fortson, W. K 210

157. Frasier, W. T 1st Rec. 44

158. Greenlaw, Isaac 475

159. Greenl aw, Nelson 478

160. Greenlaw, R. A 446

161. Greenlaw, Henry 205

162. Garrison, James F IstReo. 69

163. Garrison, F 265

164. Galimore, Ed 268

165. Green, Allen 1st Rec. 59

166. Green, "Wm. J 204

167. Green, W. M 1st Rec. 77

168. Green. Robin 233

169. Gill, Monroe '. 252

170. Graves, Henry IstReo. 52

171. Gratton, A. G- 271

172. Good.Isaac 245

173. Gorwin, G. W 1st Reo. 52

174. Garrett, John 224

17~>. Graham, H 225

176. Gray, Rich'd J 649

177. Gray, Ed 265

178. Hervey, Wesley 247

179. Hervey.Press 232

180. Hervey. A. H 520

181. Hervey.John 520

182. Hervey, A. H 343

183. Hervey, Alex 62, 1st Rec. 474

184. Hervey, Wesley, No. 2 254

Page.

185. Hervey, Samuel 254

186. Hervey.Leroy 217

187. Hervev.Mike 254

188. Hervey, William 205

189. Herve'y, Dick 489

190. Hervey, Nelson H 265

191. Howard.F 474

192. Howard, Charles 474

193. Howard, Columbus 267

194. Brigands, James 459

195. Howard.F 207

196. Holland, Geo 211

197. Hendricks, Rob't 222

198. Harben, Jno. T 296

199. Hood.Alf 232

200. Hood, Benjamin i;61

201. Hendiiik.Geo 471

202. Hendrick,Ed 221

203. Henderson, W. H 1st Rec. 61

204. Henderson, Wyatt 481

205. Henderson, Albert 234

206. Biggins, Frank 457

207. Higgins, Obe 243

208. Hawley, Henry 479

209. Hunter.King 211

210. Hunter, Anthony 236

211. Hayes, Noah 1st Rec. 48

212. Hayes, John , 244

213. Hayes,Robert 212

214. Hayes.John 244

215. Hayes, Ben 209

216. Hayes,Gen'l 476

217. Hayes, Alex 224

218. Hayes, RH 46, 1st Rec. 454

219. Hooks, General 253

220. Harris,R.G 249

221. Harris, Sussex 238

222. Harris, Cager 224

223. Harris,A 200

224. Harris,G 267

225. Hardin,G.W 252

226. Hodses, Alvist 1st Rec. 68

227. Harriway, G. W 1st Rec. 47

228. Harriway,M.C 1st Rec. 50

229. Holly, Obediah 240

230. Hill,' William 265,295

231. Huston, Eldi edge 267

232. Houston, Elijah 456

233. Harriway, W. A 269

234. Hall.C 201

235. Hill,T 448

236. Harnson,R.H 454

237. Hall,John 263

238 Haines, Abe 457

239. Hinos, Anderson 199

240. Hin.es,Dixon 198

241. Hines, Hampton 227

242. Hoyle, Virgil 364

243. Honse.J 264

244. Hill, Arch 449

245. Hill, Sam 256

246. Harding.J.T IstRec. 49

247. Hardman, Sam 456

248. Holines.Jim 198

249. Hickraan, Nat 264

250. Holman, Gaston 256

251. Hill.Press 458

252. Ingrahara.W.T 269

253. Joues.Matt 222

254. Jones, Milton 478

255. Jones, Wiley 268

256. Jones, Henry 232

257. Jones, Edmund IstRec. 56

258. Jones, Ephraim IstRec. 80

259. Jones, Gilbert 258

260. Jones, Daniel E 257

261. Jones, Jerry 263

262. Jones,Isom 227

263. Jones, Lem 228

264. Jones,Albert 198

265. Jones.D IstRec. 82

266. Jones,M 454

267. Jones, A. W IstRec. 60

268. Jones, Isham IstRec. 81

CLAYTON VS. BEECKINRIDGE.

707

Names of persons who have testified they were at the election in Howard Township, Conway
County, Ark,, ort November 6, 1888, etc. Continued.

Page.

McMurray, Richd 450

Morgan, Wash 258

Majors, Cupid 1st Rcc. 50

Manning, Robt IstRec. 73

Metchum, Lewis 478

McKinney, S 489

McHinney, S 255

Macklin, David 1st Rec . 65

Matthews, I. C 452

Matthews, Philip 475

Mitchell, Henry 454

Madlock, Bob 473

Mitchell, L.M 242

Mayburn.Wiloy 1st Rec. 56

Ma'ttox, Clark 242

McCully, John 447

McCully.E.D 232

Neely, Jim 480

Owens. Geo 1st Reo. 50

Otetn, John 364

Ostler, Alex 447

Oslee, Richd 360

Ostler, Jam es 459

Pari-ott.M 551

Parrot, Frank 477

Parrot, Bryant 473

Parker, A 1st Rec. 73

Adams, Joshua 549

Parker, Arthur 235

Parker, Win 447

Parker, Wm., No.2 553

Potter, Dick 1st Rcc. 71

Payne, Bedford 521

Payne, Squire 489

Payne.Sara 249

Page, Frank B 231

Page,W.I 237

Phillips. H 358

Perry, W. T 553

Parry, Isom 475

Pope, John 239

Pope, James 262

Pope, Theopolis 215

Pope.Peter 361

Powell, Lewis 236

Patterson, N 341

Peoples, Geo 248

Price.Ben 257

Price, Albert 246

Patterson, Dan 476

Reese, Tobe 1st Rec. 57

Rivers, E 48, 1st Rec. 479

Rivers, Dave 472

Richardson, W.R 265

Richardson, Clem 458

Randolph, W.M 269

Ridley, Roy 456

Richcllo, Richd 197

Rozelle.J.R 450

Rice, Charles let Rec. 52

Rowley.Eph 489

Ragland, Charles 246

Raglen, Lewis 226

Rice, Milton 448

Rye, Scott 365

Kaglen, Stephen 226

Reed, James 1st Rec. 57

Rainwater, J. D 1st Rec. 54

Robinson, A. R 204

Reasoner, Armstead 78, 1st Rec. 477

Roth well, Alex. A 216

Raglan, Lee. 1st Reo. 73

Smith, Thomas 268

Smith, Alex 35D

Smith, Saml 272

Smith, W. B 218

Smith, Ed 246

Smith, Wade 222

Smith, Thomas, jr 270

Sniith.A 201

Smith, John 241

Smith, J.P 1st Rec. 49

Smith, Sam'l 1st Rec. 70

Adams, Jo.-, h u a 649

269 Jones Isom, No. 2 ....

Page.
473

353.

270 Jones S. H

359

354.

234

355.

272 Jones' D S . ...

215

356.

273 Johnson C T . ..

284

357.

274 Johnson Ford ...... .

360

358.

479

359.

245

360.

.........1st Rec

361.

278 Johnson Bailey......

221

362.

279 Johnson, Albert ......

1st Rec

363.

280 Johnson, Isaac

219

364.

281 Johnson Frank .....

244

365.

282 Johnson Henry ......

.. ......1st Reo

366.

283 Johnson, Isaac

219

367.

284 Johnson, Isaac, No. 2 .

221

368.

285 Johnson, Isaac S.... .

451

369.

286. Jenkins, Peter .......

225

370.

287 Jenkins Raymond

1st Rec

371.

288 James, Thomas ......

.........1st Rec

372.

289 Jamison, John R .....

233

373.

290 Jamison, Jacob.......

1st Rec

374.

291 Jamison, J. W .......

250

375.

208

376.

293 Jordan, Jacob ........

453

377.

294 Jordan, William

271

378.

295. Jennings, Nathl. .....

359

379.

296 Kirtland, G. W

255

380.

207 Kennedy Wm .......

242

381.

298 Kennedy, H^nry .....

220

382.

299 Kelsey, Henry. .......

26&

383.

300 King David

256

384.

301 King, William

241

385.

30 9 Kinip, A

.49, igt Rec

478

386.

303 Kieth, A

213

387.

304 Kennedy Jerry......

552

388.

305 Kelly- Mose

552

389.

306 Levels, King..........

246

390.

457

391.

308 Levels, Robt ......

1st Reo.

392.

309 Lambert Ranzo

393.

310 Lewis, Charles M... ..

200

394.

311 Littlefield L .. ..

251

395.

312 Livingston Adam .

1st Reo.

396.

313. Long Alfred

245

397.

314 Lackey, Da >id...... ..

79, 1st Reo.

479

398.

448

399.

1st Reo.

400.

317 Lucas, Frank.........

.........1st Rec.

401.

318. Lucas J

266

402.

453

403.

245

404.

321 Leslie, W.D

199

405.

322 Leveret t C. ..........

269

406.

323 Lindsley, Al

458

407.

210

408

254

409

1st Rec.

410.

........1st Rec.

411.

328. Moore, John H...... ..

343

412.

329. Moore, John H., No. 2.

201

413.

330 Moore Dan . ........

218

414

331 Moore Washington

269

415.

332. Moore Frank.........

271

416.

333. Moore, Geo. H........

343

417.

255

418

335 Moore JohnW.......

341

419

336 Moore Joseph

... ....1st Rec.

420.

337. Miller, Harry, No. 2...

259

421.

338 Miller Wesley

294

422

339 Miller Harry..........

249

423

340. Miller, Anthony......

264

424.

251

425

342 Martin D. N

472

426

343. Mormon, Lewis

480

427.

344. McCollough, Al

75, 1st Reo.

244

42R

345 McCollough Gabe....

480

429

346. Mason, Jerry
347 McDaniel, Bob

225

552

430.
431.

348. Me Daniel, Napoleon ..

226

432.

349. McDaniel.Wm

448

433.

350 Buchanan, Nelson

550

434 i

351. McDauiel, James

217

435 f

352. Mitchell. R. A...

215

436. .

708

CLAYTON VS. BRECKINRIDGE.

Names of persons who have testified they were at the election in Howard Totrwsltip, Cpmcay
County, Ark., on November 6, 1888, etc. Continued.

437.
438.
439.
440.
441.
442.
443.
444.
445.
440.
447.
448.
449.
450.
451.
452.
453.
454.
455.
456.
457.
458.
459.
460.
461.
462.
463.
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
475.
476.
477.
478.
479.
480.
481.
482.
483.
484.
485.
486.
487.
488.
4efl.
490.
491.
492.
493.
494.
495.
496.
497.

Buchanan, N 549

Smith, C.J 458

Sunderland, Jack 482

Strickland, L. R 200

Stricklin, James M 217

Slayton, John 270

Slayton, John, No. 2.. IstRec. 67

Sanders, Henry 456

Sanders, Lewis 270

Sloan, Geo. D 553

Sloan, Marion 553

Sheppard, Sam 553

Street, Felix 270

Shaw, Haywood 232

Stevens, Cager 1st Rec. 56

Stubbs, Jacob 452

Sjiivey, Watt 225

Snipes, John 2i)6

Snipes, T.C 259,296

Snipes, Sam'l 247

Shelton, Robt 449

Steele, Henry 451

Stephenson, Henry 224

Seadan, Ben 473

Scott, Ruben 231

Smiles, William 453

Salters, John A 264

Tallev.Ed, jr 238

Talley.Ed 231

Thornton, E. D 204

Thornton, Hiram 248

Tolliver, H 224

Thomaa, Geo 456

Thomas, Carolina IstRec. 54

Th.mias, F. M 264,265

Turner, Ant liony 240

Thompson, H.S 452

Tesezivan, Wm 476

Taylor, Virgil 478

Thompson. J 219

Tyler, Jacob 225

Trent, Peter IstRec. 78

Taylor, R 343

Taylor, Geo. H 479

Turner, Sam 554

Thompson, Thomas 471

Thompson, Ross 238

Thornton, Andover 216

Thornton, Hiram, No. 2 257

Tucker, Jacob 342

Tharp, Silas 222

Taylor, William 263

Taylor, Arthur 222

Thompson, diaries 472

Taylor, Jerry 213

Thurman, Wm. M 249

Theaman, Win 476

Taylor.Doc 452

Thompson, Alex 364

Tenable, Alex 294

Yemen, Ben 342

Page.

498. Vernen, Prince 203

499. Vernon.Bill 201

500. Vernen.Ed 447

501. Vernen, Barney 201

502. Vick.J.B 224

503. Williams, Henry 204

504. "Williams, E.D IstRec. 72

505. Williamson, James IstRec. 74

506. WiUiani8,E. M IstRec. 57

507. Williamson. A 236

508. Williams, Wm 477

509. Williams, Amos 481

510. Williams, Sam 453

511. Williams, Loomis 249

512. Williams, Thompson 205

513. Williams, J.W 251

514. Williams, Henry 204

515. Williams, Irwin 451

516 Williams, James 247

517. Williams, Henry 210

518. Washington, Alex 199

519. Washington, Geo 248

520. Washington, Sam 416

521. Washington, Willie 458

522. Washington, Manson 343

523. Wilson, Anderson 475

>24. Wilson, Alfred 342

525. Wilson, Peter IstRec. 80

526. Wilson, Jeff 472

527. Wilson, Henry 554

528. Wilson, Thomas 295

529. Wilson, Jesse 431

530. Wilson, W. M 201

531. Worship, Ben 256

532. Wallace, John 1st Rec. 72

533. Woodson, J. W 257

534. Woodsun, A 344

535. Wiley, Wesley 251

536. Walils, Charles 341

537. Wisham, E. W 521

538. White, J:imes C V67

539. Watson, Richard, jr 258

540. Wiun. George 480

541. Wagner, Ned 239

542. Watson.R 258

543. Winston, Richard W 213

544. Watson, Joe 480

545. Woods.George W 232

546. Wrisrht, H. W 202

547. Walker, William 268

548. Winston.F.I ^ 234

549. Wallace. Matt 250

550. Wright, Madison 251

551. Wilson, Belfleld 257

552. Walls, Henry L'2]

553. Walls, Alex 253

554. White, Sam IstRec. 92

555. Walls, Alfred 342

556. Wilson, H. W 218

557. Tancy,Bragg 343

558. Jones, Milton 478

CLAYTON VS. BRECKINRIDGE.

709

Names of persons who have testified they were at the election in Howard Township, Conway
County, Ark., on Noveinber 6, 1888, and voted for C. R. Breckinridge, or whose votes
were otherwise proved.

Page.

1. Allgood, S. E 821

2. Branson, E. B 821

3. Branson, D. B 829

4. Belcher, R. J 759

5. Binkley, J. W 761

6. Brinkley, K. H 762

7. Burns, Aaron 762

8. Bradley, A. R 712

9. Baldwin, R. D 782

10. Burchett, J 793

11. Boyett, Frank 829

12. Bowdre, A. R 830

13. Butram, Ben 711

14. Boren, W. T 708

15. Croley, J. P 762

10. Crawford, W. R 762

17. Crawford, J.C 821

18. Crawford. R. L 825

19. Clmrchwell, J. R 823

20. Cullins, C 718

21. Collins, "W. A 700

22. Ciissi-n berry, G. F 789

23. Cross, H..." 761

24. Cash, John 760

25. Christenberry, M 778

26. Chambers, W. C 777

27. Dean, A. C 821

28. Dean, R. H 822

29. Dixon, T. P 778

30. Deaver, Nathan 698

31. Deaver, Sam 697

32. Edwards, John 829

33. Evans, J. M 717

34. Fields, W. J 709

35. Ford, George "W 64

36. Ford,J.F 711

37. Ford, Gr. "W 694,705

38. Ford.D. C 825

39. Gwynn.Wm 759

40. Garret.J.W 710

41. Garrett, W. F 707

42. Garrett, C.M 708

43. Garrett,John 841

44. Gardner, W.J 717

45. Gordon, J. M 759

46. Gordon, J. W 770

47. Hobbs, R. K. John 789

48. Hobbs, W.T 718

49. Hervey.Tnos. C 802

50. Higsinbottom, B. W 831

51. Jones, J, W 829

52. Jamos, Henry 693

53. Johnson, W.T 789

54. Johnson, D. V 795

55. Kelcliy.S.R 789

56. Kemp, James 697

57. King.J. R 757

58. King,R.M 795

59. Lacefiekl, S S 824

60. Laconel(l."W. P 757

61. Liinibt-.rt, Peter 826

62". Landers, S. W 796

63. Lindsay. Carroll 778

64. Littlejohn, John H 831

65. Long.J.C 828

66. Miller, John W 711

Page.

67. Miller.T.J 842

68. Miller, Lewis 788

69. Miller.J.B 761

70. Miller,G.T 841

71. Miller, G. J 756

72. Miller, J. W 795

73. Miller, W. W 842

74. Miller, J. D 757

75. Mason J. T 824

76. Malone, A. D 691

77. Morgan, Clay 762

78. Martin, Bemar 762

79. Martin, J. F 771

80. Moore, Harry 696

81. Mitchell, J. N 093

82. Matlock, J. W 826

83. Miles, John 767

84. McGehee, Frank 696

85. McCullough. C. H 784

86. May, Win. J 762

87. Neabitt, B. F 705

83. Osborn, J.E 827

89. Osborn, E. A 825

90. Owens, Jack 841

91. Overstreet. J. H 795

92. Oliver, W. T. (voted in wrong township

by mistake) 756

93. Oo'ls, G. J 756

94. Overtoil, J. M. (voted at Morrillton for

Breokinridge, but lived at Plurnmer-
ville; knew he was voting in wrong

place) 757

95. Palmer, W. C 700,708

96. Palmer, D. J 842

97. Palmer, J. J 782

98. Powell, Wesley 759

99. Pullman. Pat 759

100. Parker, Riley 707

101. Pluuimer, Thos 693

102. Parsley, S. S 823

103. Pate, J. A 823

104. Pate, R.L 691

105. Roe, Isaac 692

106. Rice. J. A 698

107. Rambo.J. E 829

108. Sims,J.M 692

109. Stacks, B.R 756

110. Smith.G.W 718

111. Smith, T. S 695

112. Solomon, C.B 710

113. Vance, W.J 693

114. Vann.E.D 717

115. "Watson, Russell 827

116. Watkius. Bob 762

117. "Wells, W.T 777

118. Williams, Mack 760

119. Williams, J. N 758

120. Wilson.C.M 825

121. Wilsou.Goo 698

122. White.B.G- 762,782

123. White.E. W 762

124. White.Robert 747

125. "Wilder, J. A 694

126. Wolley.T.B 825

127. Armstrong, C. D 840

Vote of J. M. Overton should be deducted from above, because he voted at Morrill-
toii ; and also from above return as illegal, reducing same to 125.

710

CLAYTON VS. BRECKINRIDGE.

FREEMAN TOWNSHIP, WOODRUFF COUNTY.

I/ist of names of voters who went to the polls to vote for Clayton and wwe prevented by the

failure to open the polls.

Page.

1. A. Abernathy 134

2. S.B.Bagley 136

3. Tolliver Bagley 137

4. Wm. H. Lovelady 140

5. "Wm. Johnson 141

6. Dan Milburn 141

7. Frank McDowell 142

8. James Giles 142

9. Jim Haroldson 142

10. Mat. Bagby , 143

11. Monroe Trice 143

12. Joe Bradley 144

13. Allen Bagby 144

14. Joseph Morton 144

15. W.T.Pledger 144

16. E.D.Fleming 145

17. Wm. Barnes 145

18. Jesse Trice 145

19. Geo. "Wright 145

20. Robt. Fletcher 146

21. "Warner Harrison 14C

22. Silas Davis 147

23. Jno. Davis 147

24. F. B. Beauregard 148

26. M.C.Trice 148

26. Jordan Montgomery 148

27. E.P.Williams 149

28. Wesley Taylor 149

29. Alford Bradford 149

30. Jno. Smith 150

31. Primus Trice 150

32. Price Benson 150

33. Isorn Ballard 151

34. Gus Sprewin 151

35. Lewis Thomas 151

36. Lewis Thomas, No. 2 151

37. Myers Gaines 152

38. Geo. Trice 152

39. E.Lock 152

40. Jack Trice 153

41. Robert Morgan 153

Page.

42. Thos. Swan 153

43. Martin Harrodson 154

44. Book Trice 151

45. James Nelson 154

46. Frank Wallace 154

47. John Swan 155

48. JeffPitman 155

49. Peter Barker 155

50. Martin Bogard 156

51. Lawson Lock 156

52. Aaron Albody 156

53. Geo. Harrodson 156

54. Burrill Harrodson 157

55. Lewis Cross 157

56. Levi Biadley 157

57. W.H.Yateman 158

58. Lewis Bradley 158

59. R.B. Smith 158

CO. Richard Smith 159

61. D.C.D.ivis 159

62. Henry Holstead 159

63. Squire Bradley 159

64. Wash Bmson 160

65. J. O.Witherspoon 160

6(i. Eoubon Ba-ly 160

67. C. L.Han old'ston 161

68. Thomas Harroldston 161

69. Edward Robinson 161

70. Henry Suggs 162

71. Riley' Williams 162

72. O.V.Vawn 165

73. Jerry Clark 165

74. Mott Basby 160

75. Tony Harroldston 167

76. Will Harrodstou 167

77. Tom McNealy 108

78. Charles Patterson 167

79. J. W.Gilmore 168

80. Robert Snell 168

81. Tom Ellis 161

82. Joel M. York 161

VIEWS OF THE MINORITY.

The testimony taken is insufficient to sustain the charges, except as
to the conceded Plummerville box, the manner in which it was taken
and abruptly closed by the investigating committee was grossly unfair,
and it is misrepresented and misstated in the committee report. But
even if the testimony of the voters who testify as to how they voted is
to be believed, all the votes in the boxes attacked which are not proved
to h ave been cast for Clayton should be counted for Breckinridge. This
rule should be applied because of the unfairness of the investigating
committee, and the exceptional character of the case.

711

VIEWS OF THE MINORITY.

AUGUST 18, 1890. Mr. MAISH, from the Committee on Elections, sub-
mitted the following as the views of the minority:

This case arises out of an election held in the Second Congressional
district of Arkansas for the position of Representative in this Congress.
Hon. Clifton E. Breckinridge was the Democratic candidate, and Col.
John M. Clayton was the Republican candidate, and there was no
other candidate. On the 19th of December, 1888, notice of contest
was served on Mr. Breckinridge by Colonel Clayton, and it was duly
answered. On the 29th of January, 1889, Colonel Clayton, while en-
gaged in taking testimony at Plummerville, in Howard Township, Con-
way County, met with a violent death. This put an end to the contest
in the form it then had, and referred the whole matter in its incomplete
stage to the House of Representatives.

On March 10, 1889, the House adopted the following resolution :

That, owing to the alleged assassination of Colonel Clayton, whereby the contest
has been suspended, it is of the highest importance that the facts in the case should
be thoroughly investigated, and recommend the passage of the following resolution:

Resolved, That a subcommittee of five be appointed by the chairman of the Commit-
tee on Elections to make a full and thorough investigation of the contested-election
case of Clayton vs. Breckinridge ; to take and report all the evidence in regard to the
methods of said election ; to the contest and all events relating thereto or arising
therefrom after said election, and as to whether the contestant or the contestee or
either of them was lawfully elected, and report such evidence to the Committee on
Elections, and said committee will report said evidence and its findings to the House
for further action.

Said subcommittee is empowered to issue subpceuas for witnesses ; to send for per-
sons and papers; to employ a stenographer and deputy sergeant-at-arms, and to sit
during session of the House. Said subcommittee may proceed to Arkansas, if deemed
necessary by them, to take any part of said testimony.

That all expenses of said committee shall be paid out of the contingent fund of the
House. That all vouchers or expenditures shall be certified by the chairman of the
subcommittee of the Committee on Elections. The Clerk of this House is authorized
to advance the necessary funds to the chairman of said subcommittee upon his drafts
therefor in sums not exceeding $1,000 at any one time, to be accounted for under the
terms of this resolution, under the supervision of the Committee on Accounts.

In this resolution the duty and powers of the committee are ac-
curately defined. In it the status of the case is clearly stated ; and to
it we must continually refer in order to learn the proper order of pro-
ceedings.

The printed matter in this case is in four parts, to all of which refer-
ence must be had for a clear understanding of the case.

This case comes from a district which has always gone Democratic
in national elections, and in which the white population is about double
that of the blacks. Once or twice, in State elections, the aggregate

713

714 CLAYTON VS. BEECKINRIDGE.

vote in the sixteen counties comprising this district has shown a ma-
jority for the " wheel" or farmers' ticket, when it secured the Republi-
can vote. But only once in a State election did it ever show a Repub-
lican majority, and then it was a small one, of only about 1,000 votes,
when the certainty of the result, it being determined by the vote of the
whole State, caused great apathy in many Democratic localities. The
presumptions, therefore, as usually calculated, are all in favor of the
Democrats and against the Republicans.

Of the rumors and charges regarding the local contests of this peo-
ple we know nothing reliable beyond their official reports; and over
their local affairs we have no jurisdiction. Although in all their pre-
vious national elections no complaint has ever been brought before
Congress, and not even a rumor of wrong-doing has ever been spoken
or published, so far as we know, yet in this election it was stated and
acknowledged upon every hand that one of their ballot-boxes had been
stolen. This was followed by a deplorable and shocking tragedy, re-
sulting in the death of the contestant.

While the theft of the ballot-box did not, upon any possible hypoth-
esis, change the result of the election or alter the right of the Demo-
cratic candidate to the certificate, for the maximum voting strength of
the precinct was known and not disputed, and the returns showed that
the Democrats had carried the district by a majority of 149 votes even
if the Republicans had obtained every vote in the township, which they
did not claim and did not do, yet this event gave a striking feature upon
which to base a contest, and the two events gave abundant food for
speculation, crimination, and charges.

Whatever might be the hasty or passionate view of these* matters,
we have had time for reflection. Whatever might be the vulgar, sordid,
and unpatriotic view, we know that these questions and this case in-
volve the memory of a gentleman whose death was deplored by good
men throughout the Union, and nowhere so deeply as by the people
with whom he lived ; that they involve the rights of a member of this
House, a gentleman of long service and honorable life, the representa-
tive rights, the honor and the good name of an American constituency,
and the rights, dignity, and honor of the American House of Representa-
tives itself. These considerations, at once tragic, pathetic, personal,
patriotic, and rising to the highest dignity of judicial duty, would
move men, if any power on earth could do so, to measure well their
course. The case is exceptional. The eyes of the whole country have
been directed to it.

No people have ever been called upon to pass through a more trying
ordeal than this people; no men through one more trying than these
men ; no committee and no Congress has ever been put to a severer
test; and to neglect the duty of fair and impartial work, to stoop to
speculate upon a people's honor, to prostitute the power, functions, and
dignity of the House, to work palpable injustice, and to make merchan-
dise of human blood is to degrade the House in the estimation of all
good men. This the House seemed fully to appreciate, judging by
the full and accurate instructions it gave to the committee.

Astonishing as it may seem, respecting a district with the past record
of this one, a district where, with the exception of two or three counties
out of the sixteen that compose it, there is hardly a saloon in it, yet the
notice of contest, with which we will show Colonel Clayton had sub-
stantially nothing to do, was filled with hundreds of statements and
charges of the most serious character, covering every county and per-
haps every township and precinct in it. This was evidence of either

CLAYTON VS. BRECKINRIDGE. 715

the most serious matters for the attention of the committee, as respects
the methods of the election, or of the most abandoned recklessness of
statement as respects the contest. In addition to this most extensive
ground and material of the suspended contest there had been extensive
and unusual proceedings in the Federal court, all throwing light from
the highest source upon the methods of the election ; and the other
events charged as " relating thereto or arising therefrom," in addition
to the foregoing, all made a volume of work unequaled in extent as it
is unsurpassed in importance by any case the House has ever had
to deal with.

In regard to all this the House said " it is of the highest importance
that these matters be thoroughly investigated." * * * The commit-
tee was instructed to " make a full and thorough investigation." * * *
It was instructed " to take and report all the evidence." * * * It
was instructed to "make" this investigation and to take " all the evi-
dence," not only in regard to the " case," but also " in regard to the
methods of said election;" also in regard "to the contest;" and in re-
gard to " all events relating thereto or arising therefrom after said
election," etc.

It will be seen that all the points enumerated are clearly and
forcibly embraced in the positive instructions of the House. It is known
also that Colonel Clayton had only just begun to take his testimony,
and at only two places, when he was killed, and the contest was sus-
pended. Therefore the whole case and all the subsequent events and
proceedings, so complicated and important and all covered by the in-
structions of the House, fell to the consideration of the committee.

It is something of a guide in forming a judgment of the thoroughness
with which the committee has discharged its duties in regard to these
matters of so much more than ordinary extent and complexity, to con-
sider what time is deemed necessary and usually consumed in taking
testimony in ordinary cases. The time fixed by law for taking testi-
mony in an ordinary election case is ninety days (Revised Statutes
U. S., sec. 107). If exceptional circumstances arise this is sometimes
extended. All other proceedings connected with an election case come
out of other time. Ninety days, then, is the least time provided by the
laws of the United States and the custom of the House for taking tes-
timony alone in an ordinary contested-election case.

What has the committee done in this cause, so extensive, so com-
plicated, and demanding so especially fair and careful treatment?
The House might have directed the attorneys for contestant and con-
testee to complete the taking of testimony in the usual way, but it did
not. Then the time for taking this testimony, under the law and under
universal usage would have been ninety days, or, say, at the least,
eighty-seven days, as three days had already been consumed by con-
testant. The House could then have provided otherwise for taking
evidence in regard to the other features now embraced in the case.
But it did not do this. It considered this case so important that it
concluded to order a special proceeding in regard to the whole matter.

Thus instructed and empowered, the committee has taken evidence
all told not quite twelve days. It was fifteen days at Little Rock, it
had, say, eleven working days there, and it took the testimony of one
witness for the Government, herein Washington, consuming perhaps a
couple of hours. The report of the majority appeared in the press before
it was submitted to the House, before it was submitted to the committee,
before it was authorized by the committee to be commenced or it was
ordered to be favorable or adverse, and before all the evidence called

71(5 CLAYTON VS. BRECKINRIDGE.

for by the committee was printed or submitted to the committee in any
form, and this without complaint or ground for complaint of delay in its
submission.

From these extraordinary proceedings the House may judge of how
its instructions have been carried out. It may judge from this, and it
will be called upon to judge from proceedings still more extraordinary,
how this case has been handled. Every facility has been granted to
the committee. Every process has been obeyed, every question has
been promptly and frankly answered, and every request the majority
has made to perfect and facilitate their examinations and inquiry has
been fully granted. They have then no denial or obstruction to com-
plain of anywhere.

It is far otherwise as to them. They say on pagel :

The fact that Norwood, the fusion candidate, bad run ahead of Eagle, Democrat,
for governor, by 3,002 votes in the district led the Republicans to hope for and the
Democrats to fear the result.

Charges of fraud in the September State election were freely made, and Federal su-
pervisors were selected to watch the election and returns at the November election.

Norwood, it is well known, was a one-legged ex Confederate soldier,
and uniformly claimed to be " a better Democrat than Eagle." This,
however, did not prevent his getting the Republican support, as his
general attitude was that of an independent or bolter. This the people
had a right to do, and it furnishes no just ground of complaint or sus-
picion on the part of the House. Nor do we think his majority of 3,002
votes in the counties comprising this district is any evidence of fraud
on the part of his opponents. Nevertheless the fact, with character-
istic logic, is cited by the majority as reason for public distrust of the
way these Democrats conducted that election.

The State election of September, 1888, was not simply a contest be-
tween Norwood and Eagle for the position of governor ; it was for the
election of all the other State officers except judges of the supreme
court. Members of both branches of the legislature were voted for, as
well as all the country officers. This election was, of course, solely
under State control. It was for a very large number of positions, and
it embraced all those matters which are nearest to the people. Under
the State law the question of temperance is also involved at every State
election in every county and separately at every precinct. If license
is not affirmatively voted, then there is prohibition. Nearly every
county and precinct in this district of sixteen counties rigidly enforces
prohibition. So it will readily be seen that at a State election the super-
vision of the election is the least and the inducements to commit fraud
are the greatest. Only the State courts have jurisdiction over offenses
in this election, and if persons encourage fraud or crime for office or ad-
vantage there is always interested local influence and power to protect
the guilty.

As a rule, candidates for all these positions are selected on party
lines, and their names placed on party tickets. Consequently, if there
be fraud it is likely to be by the substitution of party tickets, or by
some other mode that will equally effect the whole list. The majority
report selects the vote for governor as the test. We abide by it. We
have brought out these associated facts to show how much it proves,
and we think we have clearly shown the character of what it proves.
Having done this in a somewhat comprehensive way we pass over minor
details alluded to in the majority report for the present, at least, as
they fall to the ground as gross exaggerations and perversions of inci-
dents. Norwood was strikingly successful in getting his vote in this

CLAYTON VS. BRECKINRIDGE. 717

district, and there is a cry of fraud. We presume if he had come out
behind the majority would have cited that as evidence of fraud as
zealously as they do the fact that he came out ahead. We can not
prevent the complaint. We can only show that it is ridiculous.

But they are not going to run these risks again, and so, out of abun-
dant caution, " Federal supervisors were selected to watch the election
and returns at the November election."

These supervisors were carefully selected by the Republican man-
agers, and the men of their selection were duly appointed by Judge
(Jaldwell, of the Federal bench, an able judge and a zealous Republi-
can. The November election was held. It was under the " watch "
of these chosen officials of the Federal court Very many officers,
close to the people, were to be chosen before. Only national posi-
tions, few in number and remote from the people, were voted for this
time. The same State laws operating in September were operating
now. No powerful local friends or influences were here to shield wrong-
doers as before. The restraining terrors of a distant Federal court, oc-
cupied by an able, bold, aggressive Republican judge, were now joined
to the local courts under which alone the September election had been
conducted, and the Federal court had its chosen "watch" and argus
eyes at every precinct.

The November election was held, and what were the tidings and re-
sult I The large vote polled by the Republicans shows there was none
of the suppression of negro voters of which we have so much talk,
concerning some localities, and so little proof. Fortunately no allega-
tion of that is made as to this district, and we have never heard that it
was ever made by any man. As to rioting, a Mr. Benjamin, of Little
Rock, went to Morriliton with a detective the day before the election to
see about the election. He did not live in this district, and a number of
the people, being advised of his coming in this manner, evidently thought
he was coming there for bad and not good purposes. Giving way to
their indignation, most improperly, of course, they hooted him and
jostled him as he alighted from the cars, and a boy, it is supposed, as
only boys handle such things, struck him over the eye with a shot from
what is known as a "bean-shooter." He was badly frightened and re-
ceived a severe nervous shock, but his family physician denies that he
was bruised in the least, except the slight injury received from the
" bean-shooter."

We may refer to this again further on, but so far as this election is
concerned the majority do not allege nor attempt to prove, nor has it
ever been alleged by any one, unless perhaps in the notice of contest,
that the vote at Morriliton next day was other than full and fair and
honestly returned. The significance of this incident, then, is difficult
to perceive, though dwelt upon by the majority with great stress.
They evidently think it indispensable to show that the election at
Morillton was unfair, though it is universally admitted to have been
perfectly fair, and they do not attempt to show that the Republican
vote fell off or that a single man or vote was in any manner restrained
or interfered with.

From Cleveland County it was reported that a young man named
Dansby had been drunk and disorderly, but that he was taken away
by his personal friends, put to bed and kept away. We will refer to
this again, as the majority lays great stress upon it, though the evi-
dence shows that a negro disarmed him, and he was no more potent
than one drunken man would be in a numerous community anywhere.
That he affected a single vote is ridiculous to assume, as shown by the cir-

718 CLAYTON VS. BKECKINRIDGE.

cumstances and evidence; and the majority, much as they dwell upon
the drunkenness of this young man, do not attempt to carry it to an
effect upon the vote. Yet they dwell upon it and seem unable to turn
it loose. If it did not affect the vote we can not see that it affected the
election.

We will consider the matter of the Plummerville box, the maximum
vote of which is conceded to be accurately known, and hence its maxi-
mum possible effect upon the election, later on. But we affirm that
with the exception of this box (Plummerville) what we have related is
the sum total of rumors, charges, newspaper reports or reports of any
kind of wrong or disorder of any kind on the part of any Democrat,
citizen or official, that ever arose or was heard of that have come to
our notice from or about any county, precinct, or locality in this district
until the 19th day of December, 1888, several weeks after Congress
met and long after the certficate was issued, when Judge John McClure
presented his remarkable notice of contest. We say his notice of contest,
for we will show that Colonel Clayton had nothing to do with it, except
to consent to it with great reluctance and after long delay.

There was no evidence, then, ol any wrong affecting a single vote
except that relating to the Plummerville box. We will show that
Colonel Clayton knew of none; that Judge McCiure knew of none,
and that there was none. One man was drunk in Cleveland County,
the only drunken white man ever alluded to by anybody or heard of on
the day of that election in the district. One man jostled and maltreated
the night before the election at Morrillton, a huudred miles away, and
this was the only man struck a blow in the district The election at
both places proceeded orderly, and resulted fairly, as conceded, and
yet the House and the country are led to believe that it was an election
of great and general excitement and violence.

We deal at present with the vote at Plummerville, Howard Town-
ship, Conway County, and with its effect on the general result of the
election. All the officers of election say that the total vote cast was 697.
No question is raised that this was a very full vote. Mr. Breckiuridge's
majority upon the face of the returns was 846. If Colonel Clayton had
received the entire vote at Plummerville Mr. Breckinridge would still
have had a majority of 149. The Republican supervisor, Wahl (p. 335),
says the total vote was 697. But no one pretended that all the votes
were Republican. Wahl estimated at the time (p. 336) that the Demo-
cratic vote was 120 or 125. According to Wahl's smaller estimate the
Republican majority here would have been 577. Then by the Republi-
can estimate at the time Breckinridge's majority in the district, includ-
ing the Plummerville box, was 369.

In the notice of contest the total vote is stated as 697, and it is there
claimed that the Democratic vote was only 75. Of course Judge Mc-
Clure had no such information, but he did not write the notice on infor-
mation. But according to this the Republican majority would have been
547 at this box, leaving Breckinridge a majority in the district of 299.
Then the committee polled the vote of this township. It found a total
Republican vote, according to the majority report (pp. 29 and 30,) of 558
and a Democratic vote of 125, making a Republican majority at Plum-
merville of 433. According to the majority report, then, Breckinridge
had a majority in the district, including this box of 413.

These are all the proofs and estimates of the result of the election, if
the vote of this box (Plummerville) lias been included in the returns,
that are of record. They include the highest and the lowest of the Re-
publican estimates, as well as the proof obtained by the majority. By

CLAYTON VS. BRECKINRIDGE. 719

every one of tbem Mr. Breckinridge was elected, even if every possible
vote in the towuship had been cast against him.

Mr. Breckinridge uniformly declared that if by any possible construc-
tion the vote in this box could have changed the result of the election
he would not accept the certificate of election. Beyond this there was
no other known crime against the ballot. Colonel Clayton alleged no
other (p. 848 and later in this report), and Mr. Breckiuridge and the
chairman of the Democratic committee at once repudiated the result of
this wrong (p. 848), and offered to prove the vote by any one he (Colonel
Clayton) might select (p. 848). Yet knowing all this, and knowing that
this is the only box stolen or alleged to have been stolen, and that the
election was held on the 6th day of November, 1888, and Colonel Clayton
was killed on the 29th of January, 1889, nevertheless the majority has
the hardihood to say:

The necessity for the enactment of some laws which will prevent ballot-box stealing
and murder from conferring a prima facie title to a seat in Congress is evident from
the result in this contest. Had such laws been in force as would have prevented
the coutestee from taking his seat with such a title, no one would have attempted to
confer such title by stealing the ballot-box. (JKeport, p. 7.)

Agaifi they say:

The certificate was obtained by the well-known larceny of a ballot-box. (Report,
p. 14.)

And although they know all the foregoing, and also that no objection
was raised by Colonel Clayton or by Judge McClure or by any one to
the certificate being issued, nevertheless the majority say, in terms of
affected reprobation and censure :

Notwithstanding the murder of contestant, the contestee appeared and took his
seat. (Majority Report, p. 15.)

The parts emphasized by italics are so marked by us.

These extracts convey in clear and unmistakable terms to the House
and the country the assertion that if the vote of " the box" and if the
vote of " a box " which was stolen had been included in the returns then
those returns would not have shown a majority for Mr. Breckinridge;
but, upon the contrary, that they would have shown a majority for
Colonel Clayton. And also that if Colonel Clayton had not been killed
in January, 1889, then these events would have been different in Novem-
ber and December, 1888. Such bold, illogical, and unwarranted state-
ments are an insult to the intelligence of the j^ouse to which they are
addressed and are a suitable illustration of the manner in which the
majority have argued and treated this case and in which they expect to
get the support of the House.

Now this is not a matter of opinion. It is a plain question of fact.
The majority report deliberately affirms to the Bouse and the country
that but for the theft of this box on the night of November 6, 1888, and
the death of Colonel Clayton on January 29, 1889, the certificate of
election, which was duly issued without protest on the 12th of December,
1888, would have been reversed from Breckinridge to Clayton.

There is no room for ignorance here. Such boldness of misstatement
in the report is simply amazing. Here is the question, apart from all
others that are considered in turn, of who was elected according to the
effect of these three matters, first, the returns; second, the Plummer-
ville vote; third, the death of Colonel Clayton. The country has been
made to ring with the assertion that the theft of this box and the death
of Colonel Clayton so changed the face of the returns as to secure the
certificate of election for Breckinridge instead of Clayton. The major-

720 CLAYTON VS. BEECKINRIDGE.

ity, after proving it to be false and utterly impossible by every line of
testimony on these topics, and after stating the contrary as to the box
on the first page of their report, yet on the subsequent pages quoted
solemnly avow it and give their official sanction to what they had already
shown to be, in the very nature of the case, impossible and untrue ; and
which was originally coined and circulated as a political lie to defame a
State and its officials, to create sectional animosities, to excite the pre-
judices and to inflame the party passions of the majority of this House
so that this seat might be declared vacant and the mind of the North
prepared for the consummation of the greater conspiracy for the per-
petuation of the worst elements of the Republican party in power.

The majority seemingly loses all guide and restraint, and they be-
come as dangerous to their friends as to their foes. On page 1 of the
report they say :

The contestee received the governor's certificate by a majority certified as amount-
ing to 846, and has not only taken part in the organization of the House, but has dur-
ing this contest filled the exalted place of a member of the Committee on Ways and
Means.

And again, on page 15, the majority say :

Notwithstanding the murder of the contestant, the contestee appeared and took
his seat.

These remarks are either meant as personal attacks on Mr. Breckin-
ridge, or they are offered as reasens why he should not have taken his
seat, should not have taken part in the organization of the House, should
not have been appointed on the Ways and Means Committee, and should
not now be declared to have been elected. Perhaps they are meant as
all. At all events these are the only deductions that can be made
from them, except such as may relate to their being used at all in con-
nection with this case.

The effect of a murder in January, 1889, upon an election held in
November, 1888, has already been discussed. The effect upon embit-
tered partisan minds, if Mr. Breckiuridge had resigned, may be dis-
cussed later on. But what information did Mr. Breckiuridge have that
was not also possessed by the House? The House knew that Colonel
Clayton was dead, and that he had, apparently, been intentionally
killed. The House knew that a ballot-box had been stolen, and it accu-
rately knew its total contents. No one disputes either of these facts.
Who knew anything more ? There was no report, official or otherwise,
of anything more that could possibly affect a vote, except what Judge
McClure had alleged for Colonel Clayton in the notice of contest.

The House let Mr. Breckinridge participate in the organization. The
Speaker appointed him ou the Ways and Means committee, and the
House acquiesced in it. The House has let Mr. Breckiuridge sit in his
place and participate .fully as a member for more than eight months.
The House was Republican when it organized and it has been Repub-
lican ever since it organized. The Speaker was elected as a Republican
and he has been a Republican ever since he was elected. These are Re-
publican acts and not the acts of Mr. Breckinridge in any senee except in
a receptive sense, and by and with Republican consent. We do not say
this to the reproach of the Speaker or the House. Both did right,
as we affirm and as they will admit. Then why is this either a reproach
to Mr. Breckinridge, or a reason why he was not elected, or that he
should now be turned out?

Why this illogical vindictiveuess now ? Is it pertinent to the gloc-
tion, or is it meant to unjustly defame a Democrat and to help pass the
force bill? This is the line of reasoning and policy adopted by the

CLAYTON VS. BRECKINRIDGE. 721

majority; and the House can judge of the merits of the cause which
needs it.

But let us inquire further into the sources and extent of this early
information. It is pertinent here and it will also throw lightupon that
which is to come. Nothing could more severely rebuke the policy of
proceeding upon assumption than the facts in this particular. Hon. J.
M. Hudson, although a Democrat, was the warm and intimate personal
friend of Colonel Clayton. His high standing and character puts his
testimony beyond question. The House having gone Eepublican there
was some talk, on account of the capital that could be made out of the
affair of the Plummerville box, of a contest. Mr. Hudson asked Col-
onel Clayton

what he was going to do? And it was a long time before he made any direct
answer. He told me he didn't want to make the contest ; but finally he told rue he
had concluded to make the contest at tun earnest solicitation of the leadens of the
Republican party. I then said to him, "You will have no trouble about Howard
township (Phimnierville) ; you recollect my proposition?" He said, "Yes, but I will
take the testimony in the regular way, the way they generally do in Congress to take
testimony.'.' That is the conversation I had with him on that particular subject.
(Testimony, p. 848.)

The following letter, from Judge W. E. Hemingway, now a member
of the supreme court of Arkansas, but who at the time of Colonel Clay-
ton's death was his law partner, throws conclusive light upon this sub-
ject:

SUPREME COURT OF THE STATE OF ARKANSAS,

Little Rock, March 16, 1890.

DEAR MAJOR: I see that some of our Republican friends are intimating that the
contest for your seat will be embarrassed by the loss of information within the ex-
clusive knowledge of Colonel Clayton. This I know is not well founded. He had no
definite information of facts that would have tended to change the result outside of
the Plummerville box, of which everybody was advised. He so told me the evening
before he left home to begin taking his depositions; as he had taken no depositions
elsewhere, he could have acquired no other information that was definite or satisfac-
tory to him. Although his conversation was confidential, it does not seem to me im-
proper that I write you of it. I do not know that it will be material, but you are at
liberty to consider it and make use of it if you think it material.
Yours, truly,

W. E. HEMINGWAY.
Hon. C. R. BRECKINRIDGE, Washington, D. C.

On the first page of the brief (committee print) of Judge McClure,
counsel for Colonel Clayton, he denies that he had anything to do with
" inducing John M. Clayton to institute a contest," * * *. That is
not the question. That point was not raised and it is of no consequence
in any sense. The sole question in this connection was and is what was
known beside the affair of the Plummerville box, and who knew it, what
was asserted, and by whom asserted , and wh at credence properly attached
thereto ? That the numberless charges were neither affirmed nor believed
by John M. Clayton we think is conclusively shown. That they are
the fictions of his counsel is, in our opinion, being shown with equal clear-
ness. Certain it is that neither Mr. Breckinridge, nor the Republican
House, nor the Republican Speaker had any other basis than his affirma-
tion to go upon, and this has not been deemed trustworthy by any of
them. Yet all of them come under the reckless criticism of the majority
of this committee, who in the same spirit have treated all the other
features of this case.

But there has been another test to all this and to all the majority say
of the result of this election, and that is a most extraordinary series of
trials before the Federal court. While this contest was being brewed
H. Mis. 137 46

722 CLAYTON VS. BRECKINR1DGE.

by the u leaders of the Eepublican party," careful inquiry was made,
not only into the single case of " drunk and disorderly " conduct of
young Dansby, arid into the offense against the ballot-box at Pluininer-
ville ; but this form of inquiry was also made into all the little omissions
or breaches of the many technical and inconsequential rules of proceed-
ings in the conduct of the election by officials. Our present Federal
election laws, not to speak of those proposed, are very comprehensive
and quite intricate.

In an agricultural district like this one, which is composed of sixteen
counties, many of the election officials are necessarily plain men, not
skilled in the law, and it is not infrequent in every State that such men
do not do everything in precisely the way and at precisely the time laid
down in the minute manuel of the laws. But true as tins is this dis-
trict had gone through two previous Congressional elections, this being
the third one since its formation, and no occasion had ever arisen be-
fore to indict any one. Judge Caldwell, a strong Republican, was on
the Federal bench all the time, and the first election was under a Re-
publican administration (Arthur's), and the present Republican United
States district attorney, Mr. Waters, was the United States district
attorney then.

In the Plummerville case in this election there is no allegation that
the election was not conducted honestly. All the judges and clerks
of election at that box were Democrats, and the box was stolen by other
and unknown, parties. But now people were indicted by wholesale.
It is well known that indictments are easy to procure from a pliant or
conscientious grand jury if men can be persuaded to make sworn alle-
gations, whether they be true or false. At all events the grand jury
was secured just as ever3 r grand jury in such cases is. They showed
that they were willing, pliant, or conscientious, it matters not which,
so far as the fact of willingness to indict is concerned. There was no
fear or hinderance as to allegations or witnesses. The only question,
then, was the question of innocence or guilt.

But to further show the zeal of the officials, the jurors, and all peo-
ple, regardless of party, to make these tests full and ample, covering as
they did all things imaginable and all men in the district against whom
rumor, slander, or just suspicion pointed or could be made to point, we
quote the following from the brief of Judge McClure, page 4, committee
print:

Every one of the prosecutions against persons in Conway and Woodruff Counties,
except the persons who were charged with the theft of the Howard Township box,
and those who were charged with a conspiracy to injure Wahl, a United States wit-
ness, was instituted before a United States commissioner, under the direction and
supervision of a Democratic district attorney, at a time when the gentleman's present
counsel was Attorney-General of the United States. In every one of the cases so in-
stituted the defendants had been bound over to answer, by the action of a Democratic
officer, before I was employed to prosecute.

Again he says, on the same page :

Out of all the cases instituted in the Second district, and of which so much com-
plaint is made, two cases, and only two, were instituted under Republican officers.
What amount of money was spent in the prosecution of these cases, I am not prepared
to say. Whatever euin it may be, it is to be hoped it will be as bread cast on the watt rs.

These cases, as we have stated, extended over many weeks, consum-
ing a great part of two terms of the court, the spring and fall term of
1889. Judge Caldwell, now circuit judge of the United States court;
Judge Brewer, now of the United States Supreme Court, and Judge
Shiros, of the United States district court of Iowa, all presided in the
course of the trials of these cases. When the present administration

CLAYTON VS. BRECKINRIDGE. 723

came into power and it was intimated that the Democratic marshal and
the Democratic United States district attorney, whose fidelity and zeal
the boastful allusion to the prosecutions by Judge McOlure is ample
assurance, would not be earnest in further prosecution, they resigned,
and the entire machinery was promptly turned over to the Republicans.
The trials all came on then under these Kepublican authorities.

The former Republican district attorney, Charles 0. Waters, was in
office again. He had an assistant in S. R. Allen, a prominent Repub-
lican attorney, and Judge John McClure was made " special district at-
torney" (page 578, etseq. testimony). Rewards were offered and paid
for testimony (page 179, testimony) ; the inducements of mileage and
Federal fees was of moment to the blacks, and it is alleged negroes filled
the yard and building of the Federal court as if an army were gathered.
It is stated that these vast proceedings must have cost not less than $80,-
000, and Judge McClure in alluding to this feature, in an extract quoted,
refrains from an estimate. He is "not prepared to say," yet no man is
in better position to know than he. His attention had long been called
to it. A cursory glance at the reported expenditures of the Depart-
ment of Justice and an examination of " costs" as assessed in the cases
(page 588, etseq. testimony) now show that far the greater part of these
great outlays did not come out of the Federal Treasury. They could
only have been met, then, out of some other funds not indicated by the
testimony.

We are not complaining of the exhaustiveness or character of these
vast proceedings. We are simply calling attention to the facts. These
evidently were not political trials, with the ordinary purpose to punish
election crimes, with the exception of course of what might have been
reasonably suspected of the parties charged, but acquitted, of the theft
of the box at Plummerville, and the same may be said of the parties
accused and acquitted of shooting Supervisor Wahl some time after the
election. It is true that no election was held at two remote precincts
in the overflowed region of the White and Mississippi River bottom,
one a Democratic precinct and one Republican. The day was cold,
wet, and raining hard. The country low, flat, and muddy. ISTo election
was held at these two remote points. The officers admitted it, and it
had been this way before under such circumstances, and the court,
with a full knowledge of the facts and motives, fined them, on their own
frank confession, $10 each.

But these are not the precincts nor are these the cases where the
votes are to come or go that are to decide this case, even upon the
most extreme theories advanced by the majority.

We make no mistake about the results of trials upon criminal accusa-
tion in their application in a civil case involving the same issue as to
the result produced by the alleged acts. We know that the doctrine of
doubt properly figures more largely in the former than in the latter
case. We know also that the power of the House in a question of the
election of one of its members is, under the Constitution, exclusive.
Hence to the House, in point of fact, all evidence is simply persuasive.
These, however, were not ordinary trials. They were political and party
prosecutions in the broadest and most comprehensive sense, manifestly
originated by a party, and for a party, and unexampled in the efforts to
prove that which would unseat a Democrat and help pass a force bill.
Democratic officials gave due credence to allegations and secured indict-
ments. The grand jury, before Cleveland went out of office, gave due cre-
dence to allegations, and the willingness of the juries to convict, as well
as to indict, is a subject of boasting by Judge McClure (his brief, p. 4,

724 CLAYTON VS. BRECKINRIDGE.

committee print) and of exultation by the majority report, which says,
pages 9 and 11 :

All of the Woodruff County officials who were indicted were convited. In fact, all
the persons who were indicted were convicted, except the persons indicted for the
crime against Wahl and those for the stealing of the Plummerville box.

And

We have given the list of cases so confidently relied on as an adjudication, and it
appears that most of these indictments in the United States courts resulted in convic-
tions.

The trouble with the majority is that it is not uniform in its practice
or in its use of evidence.

Jf convictions in the Federal court are potential and adequate as evi-
dence in this case, why are not acquittals in the same court and by the
same juries equally potential and adequate ? No one ever denied that
there were convictions ; but convictions of what ? conviction of one man
being drunk and disorderly. He was disorderly to a supervisor, but
also to others. He was taken away. Was this a calm, cool, premeditated
plot against the ballot! No. Did it affect a single vote? No. It
is most improbably alleged that one voter was scared, but the fellow
was disarmed by a negro and laughed at, taken away and put to bed.
(Testimony, pp. 178, 184, 631, et seq.)

A supervisor was told by a sheriff that his place was on the outside,
thinking his duty was to keep order. The matter was referred by the
sheriff by telegraph to the United States judge Judge Caldwell, a
strong Republican. Judge Caldwell was absent, and the telegram was
replied to by Mr. Cooper, the chairman of the Republican State com-
mittee (Testimony, p. 663), and Mr. Cooper's telegram was promptly
obeyed. In a sense and in fact the sheriff was guilty. He acted hon-
estly and never denied anything. He was convicted and fined $10.
Was this a plot against the ballot ? Did it, could it possibly affect a
vote ? Election officers of both parties were in the room or by the box.
The supervisor promptly returned and did as he pleased. How could
there be any foul play or intention of it here ? The testimony is singu-
larly straightforward and from men of undoubted honesty.

The point is that every Democrat was, by these same juries of the
Federal court, acquitted of any offense and of every charge that in-
volved, directly or indirectly, the corrupting of the ballot, or affecting the
free casting, fair counting, and honest returning of the vote. While
convicted on some they are acquitted on these counts. Mr. Breckin-
ridge, in his argument before the committee, distinctly asked Judge
McClure to name any instance, when his time came to close the argu-
ment, in which the finding of the court was not that the vote was counted
and returned as cast, and he did not attempt to name one. Among
other comments he used the following language :

There were various charges. Men were charged with technical violations of law
and with consequential violations of law. Judge Caldwell took the position that
these trials were not simply to punish crime affecting the ballot, but as educational
to the general masses upon the technical ministerial features. I referred specifically
to those charges or counts affecting the integrity of the vote, and I challenge the
gentleman to produce to this committee a single instance where a man in all those
proceedings was not vindicated by acquittal of any act affecting or intending to af-
fect a single vote. The juries convicted the accused of such offenses as they were
guilty of, and exposed them to the severest penalties where no real wrong had been
either contemplated or done, showing they were willing to convict them even where
they are not guilty of any real wrong. I say the gentleman can not find a single in-
stance where a charge affecting the integrity of the ballot was not dismissed by the
jnd^e from the bench as being untenable, or instructions given to the jury to acquit,
or withdrawn by himself; not one. Therefore it is not a conviction of a technicality

CLAYTON VS. BEECKINRIDGE. 725

that does not affect the integrity of the vote that I spoke of as a vindication, as he
states ; but it is the action I have cited and his own action upon all those charges
which affect the integrity of the vote.

The gentleman dwelt with great stress yesterday ahout feloniously doing so and so.
He did not reveal the real act or the penalty until asked. Feloniously doing what ?
Why, going to supper before counting the vote. It is denounced in the law, and I
suppose that is the usual phraseology that is used. The law does not permit them
to separate, but he can not say, and he does not, that they separated under circum-
stances or in a way that could possibly contaminate the ballot. You know, gentle-
men, perfectly well, that at these country precincts these mere ministerial or technical
features and modes are frequently overlooked by the people. They make mistakes
some times by thinking the Federal supervisor is the man to preserve order, but these
disputed precincts were all held under the supervision of both parties, and there is
nothing to justify an attack upon the result ; a mere mistake of that sort can not hold
against the integrity of the result. The case where that view was held of a super-
visor by the sheriff at a Woodruff County precinct, what did the sheriff do ? He tele-
graphed instantly for instructions to Judge Caldwell, the Republican United States
judge, or rather for a statement of the law, and he at once obeyed the Republican
reply.

Not only, then, in every case affecting or calling in question a single vote cast, ex-
cepting of course the Plummerville box, have you the sworn statement in every case
of the election officials of both parties that the election was fair, peaceful, aud honest,
and that the vote was counted and returned just as it was cast; but you have in ad-
dition to this the finding of the Federal court, covering every one of these precincts.
The court had the ballots and poll-books, some of them I know, and I know it had
access to all of them. I asked Judge Rose, of counsel for the defense, to see to it that
the court had a full and fair offer of all the records, and you see in the testimony where
they called at least for some of them and had them in possession. The question was,
was the vote cast as counted and returned, and was it counted and returned as cast?
In every instance the court said it was.

No reply was made to this and none to the special request, and the
House is referred to the court records, page 588 et seq., testimony.

Attention is called to an error in the index that might mislead upon
a hasty examination. It is stated in the index, page 876, that Martin,
Hignight, and Antony are convicted of making a false certificate of
election. Eeference to pages 603 and 607 shows that they were acquitted
of all charges except the one involving their going to supper before cast-
ing up the vote. Two judges were Democrats, one a Republican, and
the Eepublican supervisor staid with the judge that had the box and
with the box all the time.

The majority indulges in the following line of reasoning :

Reed, Lucas, and Blakely were indicted for interfering with election officers.
Their acquittal does not show that the ballot-box was not stolen.

Of course not. But, does it not show quite conclusively that the
charge that they intefered with election officers is not true f Again
they say :

Reed, Ward, Bentley, W. P. Wells, Woods, Heard, and Thad. R. Wells were in
dieted for stealing the Plummerville ballot-box, and were all acquitted. But it is
undisputed that the box was in fact stolen by somebody.

Certainly it is. Nobody denies that the Plummerville box was stolen.
But is not this very good evidence that these men did not steal it ?
There must be a stop somewhere. What more evidence do you want ?
What better can you have *? Some of these men at least appeared before
the subcommittee at Little Eock. They could have plead acquittal
and refused to testify on this subject, but they did not. They answered
every question frankly and promptly; they were asked for specimens
of their writing. They wrote out at once every dictation given to them.
It is perfectly plain from this line of reasoning that the majority will
accept as good only that evidence which tends to prove what they want
to prove, aud reject any, however good, which opposes their wishes aud
intentions.

726 CLAYTON VS. BRECKINRIDGE.

Bat take the cases now of the election officers at the various Wood-
ruff County precints, and these embrace every vote except that of the
Plummerville box that the majority passes judgment upon. In every
instance the election officials, including the supervisors, were of both
parties. In no instance do any of them fail to certify officially and with-
out complaint that the votes and returns were fair in every way. A lot
of charges were gotten up ; a lot of indictments are secured ; " the lead-
ers of the Kepublican party " have brought great inducements and press-
ure to bear after the election, and after the returns are all in. They are
going to override Colonel Clayton's convictions by their "earnest so-
licitations."

We make no complaint of this. In one sense this is their right. These
officials are charged with all manner of offenses, great and small. One
or two errors and misunderstandings as to the exact meaning of the
law are found as to some of them. The prosecutions are vigorous and
they are fined $10 each and costs, which are somehow vastly below
the actual outlay. Most of the outlay in the prosecution is concealed.
No one is punished for his unintentional and inconsequential violation
of law more than this, and no other convictions of these men were had.
What does this show? In this case, under the extraordinary circum-
stances we have related, what does it conclusively show?

Colonel Clayton had been killed, for the purpose, as charged, of
"quieting a contest." This is the theory of the murder (good enough
if sustained by evidence) of those who think that such an act would
commend men, already indicted, to the clemency of the Federal court.
This is the theory ot those who think it would close the investigation
and secure tlie good graces of a Kepublican House, already elected.
But under the fierce heat engendered by this sad event all of these men
were still acquitted of any corrupt dealing with the ballots or with the
returns. This certainly does not show that Colonel Clayton was not
killed. Nor does it show that the Plummerville box was not stolen, for
it is not related to either of those events. We know that both of these
events occurred. Neither does it prove who killed Colonel Clayton
nor who stole the Plummerville box, two eventsremote from this county
and in no wise connected with the charges tested by the trials of these
election officers. This does show, however, and under all the circum-
stances of the case it conclusively shows that these officials did not do
those things of which they were acquitted.

These charges were presented in every form and phase that ingenuity
could suggest. It is all given in the records of the court, page 574 et
seq. of the testimony.

Then what follows? It is not asserted or pretended that any other
persons had a chance to stuff these ballot-boxes or to falsify these
returns except the election officials. If they did not do this, then nobody
did it ; and the judgment of the court, the unanimous verdict of juries
composed of Republicans as well as Democrats, a judicial outfit which
was wholly under Kepublican control, was that these votes were cast as
thej 7 were counted, and that they were honestly counted and honestly
returned. This all took place also before Mr. Breckinridge took his
seat in the House.

Whatever may be said of these being criminal cases and of the
greater operation of doubt in favor of the accused in criminal than in
civil cases, is fully and fairly offset by the extraordinary circumstances
attending these trials all being adverse to the accused and the com-
plc'c failure of Judge McClure, his assistants, and "the leaders of the
Kepublican party" to cast a shadow of doubt or discredit upon the
ballot at these boxes.

CLAYTON VS. BEECKINRIDGE. 727

These proceedings, we repeat, embrace every box and every vote
that the committee takes from or counts adversely to Mr. Breckinridge,
except that of the Plummerville (Howard Township) box, which, after
proof, left him a majority, by the figures of the committee itself, of
413 in the district. Therefore, these two heads, the Woodruff County
boxes and the Plummerville box, cover the whole case as presented by
the majority as respects votes.

It is the returns from these boxes that they overthrow. They over-
throw them in the face of these certificates from officials of both politi-
cal parties, and in the face of the findings, under even the exceptional
circumstances stated, of the Federal court. The supreme purpose was
to get convictions of a character that would give them some color
under which to claim votes.

But they signally failed ; and now, after these extraordinary cases and
proceedings, the committee says, when it suits them, that this is all of
no consequence or moment; it is no proof; and at the same time they use
events and convictions that have no earthly relation to the vote as evi-
dence of the highest consequence.

Before commenting on other features of this case we wish to remark
that we are not to be understood as objecting to those cases which
looked to punishment for the crime of stealing the Plummerville box, or
for any other crime. Democrats as well as Eepublicans offered a reward
for the arrest and conviction of those unknown parties (page 869, testi-
mony). The acquittal of those tried by the Federal court for this crime,
and the non-arrest by the officers of the same court of any others, is suffi-
cient refutation of the complaint of the majority of no one being pun-
ished for it by the State. Judge W. H. H. Clayton says on page 432
of the testimony :

The Arkansas Gazette, which was then under a different man agement than it is
now, was standing very nobly upon the right side of the wall. * * *

The Gazette at that time, in its issue of March 3, 1889, used this lan-
guage :

A reward of $1,200 is outstanding for the arrest and conviction of the ballot-box
thieves, and the rewards for the conviction of the assassins aggregate about $10,000.
If these are not sufficient to punish these crimes it is doubtful if any sum of money
can do it. There is danger in over stimulus.

Neither have we any objection to make to indictments or convictions
for errors or omissions that contravene the law, or to proceedings upon
any reasonable grounds of belief of guilt of any kind. We assent to
the rod of the court being used, with tempered severity, even in an
educational way, to rebuke ignorance, to check carelessness, and thus
to prevent growth to a more serious condition. Nor are we passing any
criticism upon the able and honorable court, which, although it pun-
nished a drunken and disorderly Democrat (Dausby), whose conduct did
not affect a vote, with a fine of fifty times the amount imposed upon
the Republican judges of Richland Township, who confessed to know-
ingly permitting illegal voting, yet they imposed punishment upon the
guilty, and they fairly earned for themselves and their juries full faith
in the innocence of those who were acquitted, and in all that logically
and inevitably follows therefrom.

What we do complain of is, the majority of the committee, after all
these efforts by their party and by the Federal court, and the com-
plete failure of every feature as alluded to instituted to get. votes,
still coming here and saying this is all of no force or effect, not entitled
to credence, and at the same time making up the greater part of their

728 CLAYTON VS. BRECKINRIDGE.

report in support of their case in erroneous statements of what occurred
in the State and apart from the election, even if it were as they gave it,
and in erroneous statements in support of their case of the findings of the
very court they elsewhere reject.

The majority report asserts that there were frauds in the State elec-
tion in Con way County, which the committee has not attempted to prove.
It appears in the testimony that the Republicans had two tickets then
in the field in that county, and tke result was the Democrats carried the
county. The Democrats estimate the county at from 300 to 350 Repub-
lican majority if they are united and there is a full vote. In the State
election of 1886, Cunningham, a Union. Labor candidate, got 158 votes
in Conway County, mostly Democrats, and that enabled Gregg, the Re-
publican candidate for governor to carry the county by 401 votes more
than were cast for Eagle, the Democratic candidate. In 1888 it was
Norwood, Union Labor and Fusion, claiming to be a Democrat, and
Eagle, the regular Democratic candidate for governor, with a bad split
in the Republican party for the local offices. This time Eagle, the
Democrat, carried the county by a majority of 475. This obviously
very reasonable result is called a fraud without adducing any proof.
Then, in the Congressional election of 1888

Votes.

Clayton got 1,119

Add his vote inPlammervillebox 558

Total 1,677

Breckinridge got 1,337

Add his Plummerville vote 125

Total 1,462

Take this from Clayton's vote 1,462

And Clayton carries the county by 215

Breckinridge, with a united Democratic party, and when fraud is
charged, gets only 37 more votes than Hughes got with a divided party
in 1886, when no fraud is charged. And he gets 506 less votes than
Eagle got with a divided and rent Republican party in 1888, and yet
fraud is charged now also against the Democrats. Clayton gets in 1888
184 more votes than his party was able to run up for their fusion can-
didate, Norwood.

We now invite attention to some general facts and features about
elections in Woodruff County. There is no charge of fraud, nor has
there ever been in the State election of 1886. In that election the vote
for governor in the county was :

Eagle, Democrat 1,289

Gregg, Republican 1, 109

Democratic majority in 1886 180

But Cunningham, Union Labor, drew off 53 votes, perhaps every one
of them Democratic on a straight party issue. Add this 53 and the
real Democratic majority, with no charge of fraud anywhere, is 233 in
Woodruff County in 1886.

We know of no charge of fraud in this county in the race for gov-
ernor in 1888. Then the vote was :

Eagle, Democrat 1,548

Norwood, Fusion 1,375

Democratic majority over the Fusion ticket in 1888 173

CLAYTON VS. BRECKINRIDGE. 729

Next take the vote in this county in the race for supreme judge in
1888. Taking the highest vote on each side and it is as follows:

Sanders, Democrat 1, 222

Hill, Republican 1,037

Democratic majority 185

This vote has been cited by the other side as an evidence of the re-
sult of a perfectly fair vote between the parties in this district. We
accept it as such. If the Democrats did not turn out in all the counties
they need not have expected to carry the part of the State embraced in
this district. They did not turn out, and the counties of this district
gave a Republican majority of say 1,000.

To show the apathy in the mountain and other remote counties, all
strongly Democratic: In Van Buren County only 240 Democrats voted,
and they carried the county by only 9 votes ; in Cleburne County only 232
Democrats voted, and they carried the county by only 130 votes ; in Stone
County only 146 Democrats voted, and they carried the county by only
76 votes. The normal Democratic majority in these counties alone
would have given the portion of the State embraced in this district to
the Democracy. Although this election was held April 3, 1889, after
the contest of this case was begun and after Colonel Clayton was killed,
no effort w?,s made to bring out the vote and carry these counties or
the counties of this district. That was all looked upon as " stage" work
that men confident of a good cause would not stoop to.

Perhaps it is well now in every way that this was not done, for as this
is cited as a perfectly fair election in the whole district, it follows that
it was perfectly fair in every county and at every precinct of the dis-
trict. The result then is that the Democracy, with conceded fairness,
carried Woodruff County at this election by 180 majority. Now what
did they carry it at when Breckinridge ran against Clayton I Breckin-
ridge's majority was only 220. It was only 40 votes more than it is
conceded the Democracy carried it at fairly in the supreme court elec-
tion. And yet the one is boasted of as fair and the other as horribly
unfair.

Yet these are the people held up to the House and the country as
ballot-box stuffers, thieves, aiders, abettors, and sympathizers with such
practices. It should take very strong evidence to convict these people
of such charges and to overturn the official returns of their election cor-
roborated in the many ways we have cited.

Consider now the character of the testimony in opposition to all this
and the means employed to procure it.

They offer the inducement of $2 a day and mileage to a few negro
voters to deny after the election how they voted. What is the cen-
tral idea of the secret ballot now so warmly urged all over the coun-
try ? It is not all men who need it. Not even all negroes who vote
the Democratic ticket. But surely if men will not vote freely when
exposed to influences in the act of voting, then these same men will
deny that they did or that they intended to so vote when offered money
or confronted with influences by the exposure of their ballot after they
have voted. Are they weaker before than after f If the vote is to be
cast in secret and the act of the voter is to remain a secret, then what
are we to rely upon as good and sufficient evidence of the result f
Obviously upon the returns as certified by the election officials. Were
there ever returns more reliably certified than these from Woodruff
County ? Were they ever more reliably borne out by the results of
past elections, not only admitted to be fair, but especially that for su*

730 CLAYTON VS. BRECKINRIDGE.

preme judges boasted of as fair ? And here, too, tbey have been further
accredited by the result of the remarkable trials in the Federal court.
It is alleged too that the Republican party was not in good accord with
Colonel Clayton in this county.

Mr. Breckiuridge asked to have Mr. Leach summoned, the leading
Republican then living in the county. He was the Republican candi-
date for Congress in 1886. It was desired to show that with the sen-
timent among Republicans in this county towards Colonel Clayton it
was remarkable that Mr. Breckiuridge did not run far ahead of the ac-
knowledged honest majority of the Democrats in this county instead of
only 40 votes ahead of it. Mr. Leach had gone to Oklahoma to live
It was promised that he should come to Washington to testify, and
then it was refused after the subcommittee got to Washington. We
will say more of this and of similar acts of bad faith later on. We wish
however, to impress upon the House that even allowing all thus claimed
Breckiuridge is still elected. Only by allowing such evidence as this to
overbalance that in favor of the honesty of the returns a most impotent
conclusion and by permitting it to overturn and not to correct the re-
turns, and also by refusing to poll the vote for Mr. Breckinridge at these
precincts as it was polled for the other side, can his majority possibly
be overcome.

To show how the majority really estimate their negro testimony,
which here they take above that of the best officials, courts, juries, ami
all evidence by past elections of the fairness of the result, we recall
the instance where two negroes, as respectable looking as any who ap-
peared, testified that they saw Dr. White and Wm. Palmer in the lat-
ter's blacksmith-shop, burning up the Plummerville ballots and ballot-
box. Judge McClure, without even being sworn, contradicted them.
The subcommittee accepted this off-hand and single statement as fully
satisfactory and dismissed the matter at once.

This ignorant and characterless testimony is brushed aside when con-
tradicted in a certain matter by a Republican, although the former aie
under oath and the latter is not. But the same kind of testimony, even
more ignorant and evidently more destitute o! character, is in every
instance accepted at once when it relates to a vote as against the
sworn testimony of election officials of both political parties. One such
negro comes and now says he didn't intend to vote the way he is re-
corded. All the election officials contradict him, and they are brushed
aside and he is accepted. It is solely upon such testimony that the
majority has changed votes, and upon the same testimony they cast out
Democratic votes.

OMISSIONS FROM THE RECORD AND REFUSALS TO TAKE TESTIMONY.

On page 11 of the majority report is the following alleged extract of
proceedings at Little Rock :

At the close of the examination of Governor James P. Eagle, on recall, on the night
of May 8, 1890, the following proceedings were had, to wit :

Mr. LACEY. Now, gentlemen, are there any other witnesses to be examined?

Mr. McCLURE. I have none.

Mr. McCAiN. We had thought of oifering some further evidence, and bringing some
other witnesses, but we have concluded to accommodate the committee as you are
anxious to get away and get back to Washington, and we will say we are through.

Mr. LACE?. We want to take all the evidence you have to oner, and arc willing to
stay until you are through, but if you have nothing further to offer we will adjourn
sine die.

The committee adjourned sine die.

CLAYTON VS. BEECKINRIDGE. 731

* There is no account of any such proceedings in the record. The ma
jority says :

By some oversight this was uot inserted in the transcript and printed, and \ve hero
insert it.

In every other instance the adjournment is duly noted and inserted
in the record. Befereuce to the record will show that in every olher
instance the proceedings are all taken down in the order in which they
occur and the final words are a statement of the fact of adjournment or
recess, as the case may be, and of the hour to which it is taken. For
instance, on page 536, the last words in the proceedings of a sitting are
as follows :

The committee adjourned to 9 o'clock a. m., May 8, 1890.

Again on page 555, the presence of certain witnesses is ascertained
and then the committee takes a short adjournment for supper, and the
facts are recorded in the following closing words :

Witnesses * * * were called * * * the committee adjourned until 7 p. m.,
May 8, 1890.

In no instance is the date of the meeting of the committee brought
down at the hour of adjournment. That is inserted at the beginning
of the sitting, not at the close. But it will be observed that not only is
there nothing in the record of a sine die adjournment but the extract given
by the majority is not in the form in which such actioa or any adjourn-
ment would be recorded. The very firnt lines of what purports to be
an account of what took place, and of a transcript at the time of what
took place, shows that it is composed wholly as if written from meirory.
That it is an incomplete and incorrect statement of what took place, as
we shall conclusively show, is by far the most important fact, especially
in view of the very important character of those proceedings and of
subsequent events in connection therewith. But we wish to fix the
responsibility clearly.

Mr. Maish (a Democratic member of the subcommittee) especially im-
pressed upon the stenographer at the time to take down the full and
exact terms and conditions of the last adjournment at Little Kock. This
was perhaps the only part of the entire proceedings that was so specially
and emphatically directed to be taken down and inserted in the record ;
though it was several times impressed that all proceedings should be
taken down and reported. But here were agreements of the most import-
ant character. It was with great astonishment, therefore, that it was
found that every word of the final agreements and proceedings had been
omitted from the record. When Mr. Maish called attention to this fact,
Mr. Lacey, the chairman of the subcommittee, said :

The omission is that the reporter probably failed to take that.
Then, again, Mr. Lacey said :

I will telegraph him in regard to it.

A reply was received from the stenographer and shown to Mr. Maish,
in which he stated that he had not taken down these proceedings.
Then, we ask, why did he omit to take down a part of the proceedings !
Why so important a part ? Why that part which he was directed above
all other parts by a member of the committee to take down ? By whose
orders was this most important data omitted ? And if not taken down,
where does this extract inserted in the majority report come fro in ?

As the stenographer states he did not take this down, by whose order
was this pretended transcript prepared? It was not auy official order

732 CLAYTON VS. BRECKINRIDGE.

of the Committee on Elections or of the subcommittee on this case. '
When and where was this pretended transcript prepared ? That ste-
nographer remains at his home in Iowa, has not been to Washington,
nor submitted to any examination so far as the minority of the commit-
tee is aware. Xor has the minority been consulted as to the accuracy
or propriety of this alleged transcript or as to the mode of obtaiumeut.
It is a fabrication. Xot only has the record been mutilated by the
omission of most essential matter, which stamps the subsequent, as other
things do the former, proceedings of the majority with prejudice and un-
iairuess, but a fabricated and false account has been reported to the House.
In order to get at the truth of the agreements and proceedings of the
committee in regard to the taking of testimony, we insert the following
official report of the colloquy in the cqurse of Mr. Breckinridge's argu-
ment before the full committee, July 16, 1890. It gives the distinct ad-
mission by Mr. Lacey of every statement we make.

Mr. LACEY. I would like to ask if you challenge the fairness of the sub committee ?

Mr. BRECKINRIDGE. I do most emphatically. This, of course, is Mr. Garland's
argument, but I do charge unfairness.

Mr. LACEY. I would like to ask if on the night we left there it was not asked if any
more testimony was necessary, and your counsel said they would take no more testi-
mony there that night.

Mr. BRECKINRIDGE. On conditions covering two things : first explicit promises,
not one of which has been complied with, as to the taking of testimony in Washing-
ton ; aud next, that the whole question was just as open in Washington as it was in
Little Rock, and inquiry was not to be construed at all as closed.

Mr. LACEY. What specific promises ?

Mr, BRECKINRIDGE. Well, at the request of the subcommittee, we deferred sum-
moning parties from St. Louis, in connection with the Meecham Arms Company. It
was suggested by you, Mr. Chairman, that we have a meeting in St. Louis, but after-
wards preferred to bring them to Washington, that yon declined here afterwards. And
as regards Mr. Wood, it was stated and admitted by yourself, and apparently assented
to by the committee, that it would be more convenient to have Mr. Wood come to
Washington than Little Rock. I think you will remember you said his coming to
Little Rock was inconvenient. I offered to pay his way there and yon promised he
would be in Washington, which was specifically denied afterwards. Then in regard
to Mr. Coblentz, it was stated that it was easier to call him to Washington than
Arkansas.

Mr. LACEY. That is three ; what others ?

Mr. BRECKINRIDGE. I will not pretend to call them all off.

A MEMBER. We would like to have it because it seems to be a matter of contro-
versy.

Mr. MAISH. I would suggest I was sorry to see that that part of the proceedings
which related to the taking of testimony subsequent to the adjournment there is not
in the record. I think Mr. Breckinridge would be sustained entirely if it was there.
I was very particular that that should not be waived at all, and I discovered after-
wards they quit taking testimony. There is not a single thing in the record about it.

Mr. LACEY. The omission is that the reporter probably failed to take that.

Mr. MAISH. I had personally requested the reporter to take down everything.

Mr. LACEY. I think it is important we should have these names.

Mr. CRISP. Who was the reporter ?

A MEMBER. Some one from the West.

Mr. CRISP. He must be required to produce it.

Mr. LACEY. I shall telegraph him in regard to it.

Mr. BRECKINRIDGE. My distinct understanding with the chairman was that any of
these witnesses that 1 desired should be brought to Washington, and therefore I did
not enumerate them all to the chairman.

Mr. LACEY. Did you not on that occasion say there were about twenty-five wit-
nesses whose testimony you desired to take in relation to these votes ?

Mr. BRECKINRIDGE. Not at all. That related to another matter. I stated, Mr.
Chairman, distinctly, that if you were going to adjourn I would like to get the power
to have depositions taken, and that I might want to take the depositions of a large
number of witnesses as to how they voted, etc., but that until I had opportunity to
confer with counsel, I could not tell definitely. The chairman knows how brief the
time was, everything was under whip and spur, and we had no previous notice in tho
way matters 'are usually conducted. That was denied me, and it was stated in that
connection that the whole question was just as open in Washington as in Little Rock.

CLAYTON VS. BRECKINRIDGE. 733

Well, I said, " if it is just as open in Washington as in Little Rock, it does not make
any difference to me whether we sit atWashington or Little Rock." What I wanted
to know was, whether it was entirely open. I said, " You have the power to close it
here, but I v#ant you to understand you do not close it at this time or at this place
with my consent."

Mr. LACEY. There is no controversy about that.

Mr. BERGEN. I want to enter right here a denial of the statement as made' by Mr.
Breckiuridge and I want to state that this question was not to be opened in full
committee or in Washington.

Mr. BRECKINRIDGE. That relates to the business of the subcommittee and the full
committee, and they can attend to it at any time.

Mr. MAISH. I state that it was understood it should not be closed and we might
determine and take testimony just as we saw fit.

Mr. BRECKINRIDGE. It was as open here as there. Those are the exact words of
the chairman.

Mr. BERGEN. I do not think there will be any controversy between Mr. Maish and
inyself bout it. I am sure

Mr. MAISH. Certainly not.

Mr. HAUGEN and several members. Suppose we go on with Mr. Garland's brief, Mr.
Chairman.

Mr. LACEY. Mr. Breckinridge, there is no controversy between you and myself in
regard 10 the witnesses referred to in that way. I thought it was but just to the com-
mit lee that he give us the names so we may have them in the record.

Mr. BRECKINRIDGE. You refused to summon them after an express agreement that
you would do so.

A MEMBER. Suppose, Mr. Chairman, we go on hearing Mr. Garland's brief now.

What stronger evidence could there be of the incomplete and preju-
diced character of this so-called investigation, and of the utter unrelia-
bility of the findings and statements of fact by the majority.

The subcommittee dispersed, after adjourning on the 8th of May,
some going to their homes, and they assembled here slowly afterwards.
Mr. Breckinridge remained a few days in Arkansas. The time when
the subcommittee was ready to proceed to the completion of the inves-
tigation is indicated by the time they had their witness, Warren Taylor,
here to meet them and testify. He was an alleged State's witness in
one of the prosecutions before the Federal court. The subcommittee
was ready to hear him and to resume on the 21st of May, 1890, less than
two weeks after their adjournment at Little Rock.

On the 23d of May, 1890, ex-Attorney-General Garland, counsel here
for Mr. Breckinridge, promptly met the subcommittee (p. 377) in regard
to taking the additional testimony. He also called attention to the fact
that he had addressed a note to the chairman during the previous week
upon this subject. Mr. Lacey said it was thought important to take Tay-
lor's testimony here (the prosecuting witness); "but," said he, u the
other witnesses, I am informed, are not to be called." Who informed
him of this he does not state, nor have we ever been able to ascertain.

Then he alludes to the application Mr. Breckinridge made two or
three days before the subcommittee started for Arkansas, and which
was not only not granted but was not even replied to, asking that cer-
tain members of the House, four of them members of the Committee on
Elections, be called upon to testify before the subcommittee left. These
were Mr. Kowell, chairman of the full committee, Mr. Haugen, Mr. Dal-
zell, and Mr. Greenhalge. All of these gentlemen had argued from this
case to show why other Democrats should be unseated before they had
entered upon the investigation.

It is difficult to conceive upon what grounds of justice or propriety
gentlemen will cite in argument the assumed character or facts of a case
before any evidence therein was taken. Especially is this so when the
case had been referred to them for judicial investigation and considera-
tion ; and still more especially if they knew nothing about it. These
gentlemen of matured judgment and training, and occupying the posi-

734 CLAYTON VS. BRECKINRIDGE.

tions they did, were not to be presumed to be thus bold unless they had
peculiar information not possessed by others, and no positive informa-
tion was known to be possessed by any one as to the mooted points in
controversy.

Hence it was desirable in the interest of justice that the subcommit-
tee get their testimony before going to Arkansas. And even had
these gentlemen spoken in ignorance, and hence in blindness and prej-
udice, it was equally desirable to expose that fact, if rights are to be
equally guarded, in order that they might take warning before being
called upon to pass final judgment, and that the House and the country
might have this suitable test of their fairness. But it was ignored
and not even laid before the subcommittee. Why not? Is it pre-
sumptions to suppose that in this case the sitting member or his constit-
uents have any rights? Ordinarily in a case of the gravity of this one,
we would expect the majority to be exceedingly careful to avoid even
the appearance of unfairness, in order that no man could say that they
were disposed to fasten upon innocent men or upon a people the guilt
of an " alleged assassination," to use the language of the House, or that
they were disposed to make political capital out of blood. Nothing can
be so potent in a case like this as the truth fairly found and fairly told.

It was agreed that Mr. Garland should present an application setting
forth what he deemed necessary to complete the case and properly ex-
haust the parts that had been hurriedly or insufficiently examined into.

The subcommittee had been authorized to " proceed to Arkansas, if
deemed necessary by them, to take any part of said testimony." The
House had only instructed it to " make a full and thorough investiga-
tion." * * * It had not instructed it to go to Arkansas ; it said it
" may proceed to Arkansas to take any part of said testimony." It had
not instructed it to complete anything there, or fixed any limitation upon
it except that it must be "full and thorough;" and we have seen from
Mr. Lacey's own admission that "everything was to be just as open at
Washington as there," and that u any of these witnesses were to be
brought to Washington."

Pages 377 and 388 of the testimony will show how members of the
committee viewed this matter upon its casual introduction before this
ampler statement of the facts was concurred in by Mr. Lacey. Mr. Gar-
land submitted his statement. Nothing in it called for the absence of
the subcommittee again. Mr. Breckinridge had witnesses in attendance
near midnight, when the Little Rock adjournment took place, unexamined,
but which he thought, under the agreement, it would be cheaper and bet-
ter to defer to Washington or to take by deposition than to longer detain
the committee. It will be seen that most of the testimony here called
for could be easily taken by the usual mode of deposition, quickly pre-
pared and quickly taken. The application was as follows :

IN THE MATTER OF THE INQUIRY INTO THE ELECTION OF CLIFTON R. BRECKINRIDGK
FROM THE SECOND CONGRESSIONAL DISTRICT OF ARKANSAS.

To the Committee on Elections in the House of Representatives in the Fifty-first Congress :

The said Breckinridge moves the committee to prolong this investigation and give
him time to take the testimony of the following witnesses to prove what is set forth
and mentioned in connection with the names of each, viz :

It is understood the vote of the Pinmmerville box, as proved up, leaves the defend-
ant's majority in the district something less than 500 votes.

Certain precincts in Woodruff County, viz, Augusta Town, Augusta Township,
Riverside, and White River precincts, have been dealt with by the committee. De-
fendant has rested secure as to these, as the United States court, as well as the elec-
tion officials of both parties, have declared that the votes were counted as cast and

CLAYTON VS. BRECKINRIDGE. 735

were cast as counted. Defendant had not presumed that an attempt would be made
to depiive him of the small contingent of colored votes received there.

As the proceedings of the committee, however, indicate an intention to reverse the
findings of the election officials of the United States district court by the testimony
of the few negroes defendant had voting for him, now exposed to the proscription of
their church and race if they confessed in public how they voted, and to cast out
these precincts except in so far as the votes may be proved up anew, it is desired to
prove up the defendant's vote. It is true the change in the small Democratic negro
vote, appareutly propoesd by the committee, doea not defeat defendant ; but if they
propose to cast out the white vote and only hold on to the Republican vote, that would
defeat him. He asks, therefore, to prove up his vote at these precincts, provided it
is contemplated by the committee to refuse the reports of the officials and the find-
ings of the United States court which tried and acquitted these officials upon the
charge that they had tampered with the ballots, which court had the ballots and poll-
books and all other evidence before it.

The committee also took proceedings as to the Cotton Plant box, in Woodruff
County, and it is asserted they found certain ballots which the majority considered
suspiciously numbered, and also that a few negroes were returned as voting for de-
fendant who denied it when asked in public. If it is contemplated to cast out the
Democratic vote here and count only the Republican vote as thus proved, it is asked
to poll the Democratic vote at this box.

The Freeman Township box in Monroe County appears to be attacked because no
election was held there. If it is proposed to count the Republicans who did not vote,
it is requested to similarly poll the Democrats there who failed to vote. Defendant
claims that this is a Democratic precinct by a small majority, and that the failure to
hold an election was due to the Republicans ; the only lawyer on the ground being a
Republican, and he also a United States election official.

It is asked that Mr. Leach be summoned to prove that the Republican party was
not well organized in Woodruff County in 1888, and that under such circumstances
the Democratic party usually can and does receive about 10 per cent, of the colored
vote, as in 1888.

It is requested that Dr. C.M.Taylor, of South Bend, Ark., be examined to testify
that he could have voted thirty-two colored laborers on his farm if the " church " had
not been brought to bear on them. He lost all their votes, and if they had voted for
Breckiuridge and had been called on afterwards to confess it under prescriptive con-
ditions, they would have denied it.

Wood Pinkerton detective to prove the course of proceedings to detect the mur-
derer of John M. Clayton.

Produce the reward proclamation of Democratic county committee of Conway
County to catch ballot-box thieves at Pluramerville.

To produce the letter from a widow lady, iiarne not remembered, to Governor Eagle
to show persistency of Democrats in aiding him to catch the murderers, npon the
theory that the ballot-box thieves or any citizens of Conway County committed the
murder.

Also the letter of C. R. Breckinridge to Carroll Armstroug, relating to duty of Con-
way County and Armstrong's reply to Breckinridge.

To produce the proceedings of coroner's jury in Conway County in case of Joe
Smith, colored, killed, and politics of jury.

To produce the communication from the colored man Jordan in Conway County,
showing how and why that county went Democratic in September State election in
1888.

The testimony of Judge Cunningham, now in Guthrie, Oklahoma, to show why he
resigned as circuit judge, or accept a copy of his letter to the Gazette on that subject.

The testimony of Carter, prosecuting attorney of judicial circuit Conway County
is in, to show why no indictment was found for the killing of Clayton.

Testimony of Eagle C\ub (colored and Democratic) Cornerstone, Ark., to show diffi-
culty of colored men who wanted to vote the Democratic ticket.

The testimony of Logan H. Roots, as to his article in the North American Review
last spring on the subject of the killing of Clayton and politics in Arkansas.

The testimony of William M. Fishback as to the character of the people making
the wholesale charges of wrong and crime against the people of that district, and
his theory, after investigation, of the killing of Clayton.

The testimony of Powell Clayton as to his letter requesting all such troubles to be
reported to him, to be used for campaign purposes, or a copy of the letter be admitted
in evidence; and also a copy of his letter and other official proceedings approving the
murder of Hooper and others in Conway County ; and also his letter, or a copy, to
Major Hunu, at Pine Bluff, asking for money from Democrats to aid his private de-
tectives in finding out the murderer of his brother.
The testimony of the sheriff of Los Angeles, Gal., to show on what he based hig

736 CLAYTON VS. BRECKINRIDGE

unqualified statement that Hooper was absent from California some time bafore and
after Clayton was killed.

The testimony of Dr. Greene, of Los Angeles, Cal., who was Hooper's family phy-
sician continuously.

The testimony of the citizens referred to by Sater and Mrs. Hooper, who, he said,
told him of Hooper's absence, as stated above.

The testimony of the man Lewis, referred to by the California sheriff, whose evi-
dence was reported to Governor Eagle.

The production of the confession of the colored man Parks as to the real murderer
of Clayton.

The testimony of D. H. Womack, for the further statement of the particulars of the
killing of Clayton, not distinctly brought out in his former examination.

The testimony of E. C. Meacham, of the E. C. Meachaui Arms Company, St. Louis,
Mo., wifrh his sales-books from April 24. 1888, to January '29, 1&89, as to the pistol
alleged to have been sold by his company, and supposed to be the pistol found on the
ground or place of the killing of Clayton.

And the testimony of C. H. Jones, of St. Louis, and Samuel W. Fordyce, of the same
place, as to their inquiries on this same subject of the pistol, or the production of
their correspondence with the defendant touching the same.

And the testimony of Judge W. S. Hemmingway, law partner of John M. Clayton,
to show Clayton had no information upon which to base a belief of his election, or
the production of Judge H.'s letter on this point, written about the close of last
winter.

The testimony of C. R. Breckinridge himself as to the steps taken to detect the per-
son or persons engaged in killing Clayton.

The testimony referred to to be taken in such mariner aa may best suit the conven-
ience of the committee.

He believes and so avers the same is essential to a clear and proper understanding
of the merits of his case, as charged and brought before the committee by the inquir-
ing party.

He does not ask for the taking of this testimony for delay, but because he has not
had the opportunity to present the facts fully, which he expects to prove as aforesaid.
The investigation has not proceeded, as is usual in such cases, but each party has been
allowed to bring in testimony at will, without waiting for the case to be closed on the
one side, and then for the other to rebut, a mode protested against by defendant, and
manifestly unfair to him. Occupying the position of defendant in this inquiry, he
could not -be expected to present his case entire until the contestant, or the inquir-
ing party, had concluded the case agaiust him.

He did not, nor does he now, understand that the case was closed when the sub-
committee ended its sitting at Little Rock, Ark., and certainly nothing he and his
counsel there said or did would warrant such an impression, but quite the contrary.
His belief was, that on the adjournment of the subcommittee at Little Rock, Ark.,
this defendant would be allowed here or elsewhere, as it pleased the committee, to
bring in the testimony above indicated to rebut, as far as may be, the testimony
produced by the other side.

He does not feel that it is fair and just to his constituents and to the very right of
his claifn, as the legal representative of such district, to proceed to a hearing of the
case without this testimony.

While he by no means concedes the testimony already taken in any manner im-
peaches his right to the seat contested, yet, to refute and clear up certain points made
as charges against the people he represents, he deems it right that this testimony be
adduced.

Wherefore, etc.

Very respectfully,

C. R. BRECKINRIDGE.

A. H. GARLAND,
H. J. MAY,

Attorney*.
UNITED STATES OF AMERICA.

District of Columbia:

I, Clifton R. Breckinridge, named in the foregoing motion, do solemnly swear the
facts therein stated are true, to the best of my knowledge and belief. So help me
God.

CLIFTON R. BRECKINRIDGE.

Sworn to and subscribed before me, May 26, 1890.

[SEAL.] WILLIAM W. MOFFBTT,

Rotary Public,

CLAYTON VS. BRECKINRIDGE. 737

To this the majority of the subcommittee, through its chairman, made
the following reply, so strangely at variance from the promises and agree-
ments upon which an adjournment was madeat f Little Kock, so at vari-
ance from what is said on pages 377 and 378, from the duty of the com-
mittee, and from the admission of Mr. Lacey in his colloquy with Mr.
Breckinridge and Mr. Maish before the full committee :

JUNE 3, 1890.

The subcommittee having examined the application of contestee in relation to the
taking of further testimony in the case of Clayton vs. Breckinridge, make the follow-
ing ruling :

The application of the contestee to take further testimony in Arkansas is denied.
Full opportunity was given to take such testimony at Little Rock, and the case was
there closed as to such testimony with the consent of the contestee. The closing of
the case, however, at that point only related to taking testimony at Little Rock,
leaving the subject of further testimony at Washington to be considered on arrival
here. As to three of the witnesses, Dr. C. M. Taylor, C. R. Breckinridge, and Powell
Clayton, while the committee know of no reason why their testimony was not suffi-
ciently taken at Little Rock, yet as all three of said witnesses are in Washington to-
day, the committee will hear their further testimony if contestee desires to have same
taken.

As to all documentary evidence called for, the committee will receive same and
place same in the record, subject to all proper objections as to relevancy, materiality,
or competency, provided the same is furnished before the evidence is fully printed.
The record is now being printed and the committee suggest that evidence of this
character shall be presented at an early day if contestee desires to have same printed
in the record.

As to the Meacham Arms Company evidence, the committee have fully examined
the correspondence of said company. The application to take such testimony does
not, disclose its materiality or relevancy, but the committee deem it proper to say that
from such correspondence they are informed that the company did not keey the num-
bers of the revolvers sold at that time, and had no record by which the sale of this
revolver could be traced. A revolver of the same pattern, however, seems to have
been sold to one Vandermeulen, and by him sold to a party whose name was to him
unknown, and who TV as en route to Montana, and there is no way of ascertaining
whether the revolver was or was not the one in question, it merely being one of the
same pattern. -

As to the testimony of Mr. Fishback and Mr. Roots, they were both present during
a considerable portion of the hearing at Little Rock, and no reason is given why the
testimony was not there taken if desired.

As to the testimony of Judge Cunningham, whilst the subject of his resignation
was discussed before the committee, it was not explained by testimony, and there is
no showing as to ita relevancy or materiality.

The other witnesses living in Arkansas could have been examined there.

As to the recalling of Mr. Wonark, no reason is given as to why his evidence and
that of Mr. Alnutt, already taken, did not fully describe the particulars of the killing
of Mr. Clayton.

As to the testimony of parties in California, there is no showing as to the character
of their testimony, as to its relevancy or materiality, nor is there anything to indicate
that the testimony would in any manner conflict with the testimony already taken as
to the whereabouts of Hooper at the time of the murder. There is no showing that
such testimony would conflict with that of the Hooper family taken at Little Rock.
Owing to the fact that the so-called Hooper theory was brought out about the time
that the investigation commenced at Little Rock there had been no previous oppor-
tunity to investigate the same upon the part of persons representing the contestant.
Telegraphic communication was at once bad with parties at Los Angeles, the results
of which are not set out in this application, although exhibited to the committee.

In the absence of any showing whatever that the proposed testimony will throw
any light upon that theory of the case the committee do not deem it proper to delay
the case to take the proposed testimony of California witnesses.

As to the testimony of Jones and Fordyce in regard to the revolver, there is no
showing that the same would throw any light upon the identity of the revolver.

As to Judge Hemmingway's testimony, we do not believe it to be competent or ma-
terial, and if competent, there is no reason why the same was not taken in Arkansas.

If contestee desires to take the testimony of Dr. Taylor or Mr. Breckinridge or
General Clayton, the witnesses now present in the city, he should so notify the com-
mittee immediately.

H. Mis. 137 47

738 CLAYTON VS. BRECKINRIDGE.

To this proposition to violate agreements and to dismember Mr.
Breckinridge's presentation of his case the following reply was made :

WASHINGTON, D. C., June 4, 1890.
To the Committee on Elections in the House of Representatives in the Fifty-first Congress :

In response to the communication of yesterday from your subcommittee touching
the application of Clifton R. Breckinridge, tiled before you on the 27th ult., for the tak-
ing of additional testimony in the matter of inquiry into his right to the seat in the
present Congress as Representative of the Second Congressional district of Arkansas,
the, said Breckinridge would respectfully say :

His said application was made in good faith, and as the first step towards a method-
ical procedure in this investigation, presenting for the first time in its progress the
names of witnesses, what was expected to be proved by each of them, with dates aud
points all attached. Heretofore, as suggested in such application, the inquiry pro-
ceeded in no fixed or connected manner, aud he knew not exactly what he was called
upon or expected to rebut. In fact, he was without in ormation on this subject until
the witnesses were being examined on the stand. Making the application as he did
to meet certain vague aud uudetiued charges and asseriions as a whole, his request
stands as a whole, and not a fragment. Every part and parcel of it is a link to be
connected with other facts and circumstances that make up his case to meet such
charges and assertions of the party inquiring, whoever ho may be. There is nothing
to be found in the record, directly or indirectly, that precludes respondent from the
exercise of this right. Had the investigation at Little Rock, Ark., been conducted
according to the usages in judicial or quasi-judicial controversies, with ample time
therefor, this application would not have been necessary.

Respondent is compelled to accept the overruling of this application, with the
three exceptions of the testimony of Dr. Taylor, Powell Clayton, and respondent;
and, so far as these are concerned, their testimony, standing unconnected with the
other testimony asked for in the application, w r ould be of no avail. And as to what
is termed documentary evidence in the ruling of the subcommittee the same reason
applies: all that is a portion of an entire defense, suggested and indicated by the
motion or application, aud of itself aud by itself, without the other facts to be estab-
lished, as set forth in such application, are valueless.

The concession of the committee to the respondent that he may take the testimony
of Dr. Taylor and Powell Clayton because they are here present must not be baaed
upon the assumption that they are here at the request or by the procurement of
respondent, for, so far as he is concerned, their presence is entirely accidental. They
were not brought here by any act or suggestion of this respondent. He asks no fur-
ther delay of the committee since this ruling upon his application, but leaves it free
to proceed with the case as it may deem best, requesting that his motion for the tak-
ing of more testimony, with the ruling of your subcommittee on it and this response
to such ruling, be made a part of the record of this case and printed therein ; and
also that the names of the witnesses, voters at the election inquired into in the
State of Arkansas, be printed in the record in alphabetical order, as a matter of con-
venience to all.

Very respectfully,

C. R. BRECKINRIDGE.

A. H. GARLAND,
H. J. MAY,

Counsel.

DEATH OF JOHN M. CLAYTON.

Without discussing the question of the Federal Government inquir-
ing into the criminal affairs of a State, we will simply say that the
direction of the committee to inquire thoroughly into everything relating
to the death of Clayton was perhaps the one part of the instructions
that the public expected and desired to be carried out the most ex-
haustively. In order that there might be no misunderstanding about
the authority and duty to do this, Mr. Breckinridge had the order of
inquiry enlarged by an amendment which clearly embraced it, and the
instructions, as thus amended, were unanimously adopted by the House.

Citizens, authorities, all have responded to every call and assisted
every effort. Every process has been promptly obeyed. Every ques-
tion promptly answered. Every test, such as writing from dictation, or

CLAYTON VS. BRECKINRIDGE. 739

any other the committee saw fit to impose, was promptly responded to
by every party suspected or accused. If, then, there has been failure
to examine important witnesses, to exhaust any and every theory, if
there has been any halting in proceedings and any suppression of testi-
mony, any effort to confuse the case, to shield the guilty, to accuse or
besmirch the innocent, or to place a cloud needlessly and hence unjustly
upon any one, or any effort in any way to handle this case badly for mere
political purposes, the House will know where the responsibility lies.

John M. Clayton was killed at a little place called Plummerville,
in Conway County, Ark., on the night of January 29, 1889. Two men
were in the room with him at the time he was shot. One of them was
Mr. W. D. Allnutt, a lawyer and notary public, and a Kepublican. He
was assisting Colonel Clayton in conducting his contest at this point,
acting, however, simply in his capacity as a notary public, Colonel Clay-
ton himself doing the legal part of the work, advising, however, with
Judge John McClure, his attorney, at Little Bock. The other man was
Mr. E. II. Woimick, misspelled in the testimony and index as Warnuck.
He was a salesman for a pottery concern, was at Plummerville on busi-
ness connected with his concern, was stopping that night at the same
house as Colonel Clayton and was a stranger to both Clayton and All-
nutt. Womack is said to be a Democrat. The testimony of these two
men is most important for any speculation upon the case, and we here
insert it :

W. D. ALLNUTT, called, sworn, examined, and testified.
Direct ex. :

Q. Where do you reside ? A. Clarksville, Johnson County.

Q. Where were yon on the night of January 29th, 1889? A. Plummerville.

Q. Where had you been in business aud how was you engaged prior to that day ?
A. I had been down there taking depositions between Clayton aud Breckinridge.

Mr. COOPER. Were they being taken before you or were you acting as attorney ?

A. I was notary public ; they were being taken before me.

Mr. McCLURE. About what time in the evening did you and Mr. Clayton get your
supper?

A. I suppose somewhere about 7 o'clock.

Q. At whose place did you get supper? A. Mrs. McCraven's.

Q. About how long was you getting your supper ? A. I couldn't tell you about
that ; I didn't pay any particular attention to the time ; I suppose we were at the
table about as long as it usually takes a man to eat a meal.

Q. 15 or 20 minutes? A. Yes, sir.

Q. Did you take supper at Mrs. McCraven's house? A. Yes, sir.

Q. After you got your supper where did you go next? A. We went back to the
front room where we were before and where Mr. Clayton was killed.

Q. How long did you remain there? A. We remained there all night.

Q. All the balance of the evening? A. Yes, sir, excepting a few minutes when I
went out of the room after he was shot and sent somebody down after a doctor.

Q. Do you know a man named Wamuck ? A. Yes, sir.

Q. Was he iu the room the time Clayton was shot? A. Yes, sir.

Q. How long had he been in the room prior to the shot ? A. He been there ever
Bince supper ; he went in about the time we did, I think.

Mr. COOPER. Is that a sort of a sitting-room for the house as well as a bed-room ?

A. Yes, sir.

Q. That is the reason the other folks were in there as well as him ? A. Yes, sir. I
will not say Wamuck came in with us ; it is possible he didn't come until after we
had been to supper, but I am under the impression he was there before that.

Mr. McCLURE. Till how you spent the early part of the evening; what were you
doing after supper*

A. We were iu the room talking.

Q. Were you engaged at work there in the preparation of any papers? A. I was
not.

Q. Was he ? A. I don't remember that he was now.

Q. You were just holding a casual conversation ? A. When we first went into the
room after supper I sat down and commenced reading a paper, and I think T read
there probably 15 or 20 minutes, and I got up from there and went across on the op-

740 CLAYTON VS. BRECKINRIDGE.

posite side of the fire-place, and Mr. Wamuck sat down in the chair and he had a
little memorandum book he was figuring in.

Q. How long would you think Wamuck was there ?

Mr. COOPER. There is a diagram Mr. Wamuck made this morning which is in use;
it shows the house and the surroundings.

Mr. McCLURE. Is this paper now shown you approximately[a correct diagram of
the house of Mrs. McCraven T

A. Yes, sir ; the shape of the house.

Q. And the surrounding grounds ? A. Yes, sir.

Q. Mark the sitting-room, dining-room, and Mrs. Craven's room, etc. ; mark them
1, '2, 3, 4, 5, 6, and so they can be identified.

(Witness does so.)

Q. Now, about what time in the evening was it that Mr. Clayton was shot ? A.
Well, sir, as near as I can get at it it was about 10 minutes before 8 o'clock.

Q. Before 8? A. Yes, sir.

Q. How do you fix the time ? A. I started to tell awhile ago.

Q. Well, go on. A. When we first came out from supper I sat down to the table,
took a newspaper, and read there probably 10 or 15 minutes, or maybe a little longer;
then I got up and went over on the other side of the fire-place and Waniuck sat down
and figured a little while, probably as much longer; then when he got up to walk
across to the fire-place where I was sitting in the chair I got up and invited him to
take a seat, and I went over on the other side, and just as 1 got up to go Mr. Clayton
was shot, and I am satisfied it was in about that time. I gather it from that, and
when the doctor came up there the first thing was to take out Clayton's watch and
look at it.

Q. Was the watch going? A. Yes, sir.

Q. What time of day was it by the watch ? A. 5 minutes after 8, and he had been
dead then, I suppose, 10 or 15 minutes.

Q. Who was in the house when he was shot ; was there any other man ? A. There
was no man in the house except Mr. Wamuck and myself; Mrs. McCraven's grand-
son had gone down town; Wamnck was a stranger ; I didn't feel like going down the re.

Mr. COOPER. You had no watch ?

A. No, sir.

Mr. McCLURE. Wamuck had no watch T

A. I don't know about that. I went into Mrs. McCraven's room and took a lamp
and went back into the room where he was, and about the time we got back in these
young men came in, and so we sent them down town after the doctor, and by the
time they got down there and back they told anybody else they saw that Mr. Clay-
ton had been killed ; they went down there and got Dr. Allgood, and when he got up
there Mr. Clayton had been dead, I suppose, 10 or 15 minutes.

Q. What examination, if any, was made that night, if any ? A. Out of doors, do
you mean ?

Q. Oh, no ; but in the house, of the body. A. They examined the body, and took
what he had on his person, his watch and money and papers and letters. Dr. All-
good took them off and turned them over to me ; we raised him up from where he
was lying in the blood and laid him over a little closer to the wall, and put a pillow
or something under his head and put a sheet over him and let him lie there all
night. Some of them suggested that we take him up and put him on the bed, bnt I
suggested we had better let him stay where he was until the inquest was held. I
told them 1 thought probably it would be better to let him stay there where he was
until the coroners jury viewed the remains or until somebody would come and take
charge of it.

Mr. MAISH. If I understand you correctly you say you removed the remains of Mr.
Clayton ?

A. Yes, sir ; we just picked him up out of the blood and laid him over a little nearer
to the wall.

Q. Did you take him off of the chair where lie was lying ? A. Yes, sir ; we took
his feet down off there and straightened him out, took his shoes off, aud put a sheet
over him.

Q. And that was done on your suggestion ? A. Yes, sir.

Mr. McCLURE. Who were the first persons that came to the house after the firing ;
that is strangers, persons who were not in the house when it occurred ?

A. The first persons came in there was Mrs. McCraven's and son or stepson, or what-
ever it is, and another young man that was boarding there.

Q. How long was it after that shot was fired until they came to the house? A. I
suppose 5 or 6 minutes.

Q. Was it as much as that T A. I guess it was ; I will say 5 minutes anyhow.

Q. Which way did they enter that house ? A. They came in through that side
gate at the back end of the house, and went into the doorway into Mrs. McCraven's
room.

CLAYTON VS. BRECKINRIDGE. 741

Q. Before entering the house in the manner you have described would they have
to pass the window through which Clayton was shot? A. No, sir; they come in at
the other end of the house.

Q. Did they come that way ? A. No, sir.

Q. Of that you are positive? A. I am sure of that; these two fellows didn't.
When the o'.her fellows come afterwards they come iu arouud that way as well as
other ways.

Q. When these two young fellows went down after the doctor and they told the
people what had happeued, who do you recollect of being the first persons that re-
turned up to the house on. account of the news being spread down town ? A. Well,
sir, it was Dr. Allgood, and I don't remember who else, until Mr. Armstrong come
directly a few minutes after that.
Q. Gen. Armstrong ? A. Carroll Armstrong.

Q. How long was it after the shooting before he was there ? A. Carroll Armstrong?
Q. Yes, sir. A. I suppose it was 20 minutes, and maybe a little longer about 20
minutes, I should judge.

Q. Now, what took place after that ? A. Well, I don't know ; Mr. Armstrong came
there and he and I sat up the greater part of the night, and Mr. Wamnck sat up
awhile with us. If my memory serves me I went to bed about 11 o'clock, and I
think Mr. Hobbs came up there and Armstrong, and I was up there until about 3
o'clock in the morning, and Mr. Wamuck and Mr. Hobbs, and Hobbs and this young
hoy was staying there,

Q. Was there any dispatches sent off that night at your instance or suggestion ?
A. Yes, sir ; there was some sent; I don't remember it was at my suggestion, but as
soou as the doctor made the examination of Mr. Clayton's body and straightened him
out Mr. Armstrong said he would go down to the telegraph office and telegraph
some of his friends, and he asked me if I knew where Powell Clayton was, and I
think he said lie would telegraph to Little Rock or to Washington, and he went and
said something about telegraphing to him, and I understood he did so.

Q. How long was this conversation about sending off the dispatches after the death
of Clayton ? A. He had been dead then half an hour.

Q. Mr. Armstrong then, as I understand you, went off to send dispatches ? A. Yes.
Q. How long was he gone ? A. He was gone some considerable time ; he had some
trouble about finding the operator; he had left the office at least that's my impres-
sion now. When he came back he told me he had to go to the operator's house or
had sent somebody there after him.

Q. Something has been said bout a blanket being up at that window ? A. Yes,
sir ; Mr. Armstrong and I had it put up there ; I suggested it, that we were both
sitting there, and I called his attention to the looks of the window and that curtain,
and I said I didn't like it, and he said he didn't like it very well himself, and I sug-
gested that something ought to be up there. And I went out and saw Mrs. McCra-
ven, and she came in with a blanket.
Mr. COOPER. That was to prevent persons from seeing in ?

A. It was a blanket or quilt, I forget which, and I think Mr. Wamuck helped me to
hang it up. Yes, sir ; it was to close the window so people couldn't see in.
Mr. McCLURE. You put it np over the window?
A. Yes, sir.

Q. What time of night was it hung up ? A. I don't know; perhapaan hour and a
half after Clayton was killed.

Q. Something has been said about that window curtain that was there before you.
put up the blanket across it ; state whether that was a perfect curtain ? A. Yes,
sir, it was a calico curtain, a thin curtain, hut there was no holes in it. It was one
of those curtains strung on a string at the top of the window and the curtain slide
back and forth on the string ; there was two curtains, one slides one way and the
other the other, and they separated in the middle, leaving a little crack.
Q. It didn't cross all the way ? A. No, sir.

Q. It was in a condition that persons on the outside could see through the our-
tiiin ? A. Yes, sir; but I didn't notice until after the shooting.

Q. What sort of a hole was made in the curtain by that shot ? A. I suppose it was
a hole tore in one edge of it ; probably I could put my fingers through it that way.
[Bunched together.]

Q. What took place the next morning now, so far as making examinations as to
tracks was concerned ? A. The first thing next morning when I got up, about sun-
rise or a little before, it is my impression Mr. Wamuck went with me, and I wont
out to look for tracks. I first called Mr. Armstrong and woke him, and said we
would go out and see if we could see any of -these tracks, and after he had dressed
he made the remark he would go down to the telegraph office and see if any tele-
grams had come for him, and for me to go out and look for tracks, and I think Mr.
Wamuck went with me, and part way anyhow. He was out to that gate and went
in through the gate. I don't remember now, but think he went back to the house,

742 CLAYTON VS. BRECKINRIDGE.

and I went out there to that hole where they come through, and there I turned
arouud and came back.

Q. What did you see in the way of tracks? A. I saw some tracks of two men
coming in and two men going out.

Q. So they returned by the same path they came in ? A. Yes, sir ; they went right
back the same way, but they didn't strike the same place in the fence. One ot'them
ran right against the fence and knocked off a picket or two from the looks of the
hole ; he had run over something and fell through the hole.

Q. There was a hole in the fence ? Was that hole made prior to that time? A.
Yes, sir ; there was an opening in the fence before that I think.

Q. When they went away from the house they didn't seem to strike the same
place 1 A. No, sir ; one of them struck the opening in the fence, and the other
didn't; he struck the fence.

Q. One of them made his exit through the hole where he came in ? A. Yes, sir.

Q. And the other one went through where he knocked the pickets off? A. Yes, sir.

Q. You didn't go beyond the garden fence? A. No, sir; I didn't go over on the
other side.

Q. Where did you go then ? A." I went back to the house.

Q. It is said there is another window in the room, and some steps or marks were
found about that end of the house also ? A. Well, the two windows are right close
together, one at the end of the house and the other at the side of it. One is here [in-
dicating], and the other is right around the corner. I didn't gee any steps under the
window, but I seen the place out by a little tree.

Q. Some persons seem to have been standing at that little tree? A. Yes, sir.

Q. Were those tracks by the tree independent tracks or were they the same ? A.
No, sir.; them tracks were the tracks that went out through the little gate.

Q Were they all the same tracks? 'A. Yes, sir; they were,

Q. Were you before the coroner's inquest ? A. Yes, sir.

Q. In what capacity did you act there that day, if any ? A. The day after Clayton
was killed ?

Q. Yes, sir. A. Not any.

Q. Who wrote the testimony was taken at the coroner's inquest f A. I couldn't
tell you.

Q. Did you ? A. I got the impression I wrote down some of it, maybe I believe I
did. After we went down to the house where we took the depositions I think I wrote
part of it.

Q. Can you tell how many witnesses were examined* there that day? A. No, sir.

Q. Were you ? A. Yes, sir.

Q. But you don't know who else was? A. No, sir.

Q. About what time were the duties of the coroner completed? A. Somewher*
about 10 or 11 o'clock, or maybe later.

Q. Was the inquest concluded before W. H. H. Clayton got up there with the cof-
iin? A. I think so.

Q. That is your impression ? A. That is my impression.

Mr. COOPER. Do you know how heavy that load was; was it a shotgun and shot ?

A. It was loaded with powder and buck-shot. I don't know what the gun was.

Q. Whereabouts did it hit him? A. Right under the car ; right there [indicating].

Q. Do you know how many buck-shot entered his neck there ? A. No, sir; I don't
know how many there were and I did hear Mr. Cook, the undertaker, say too. I
don't think he found the whole lot. I think some buck-shot was in his body when
he was taken away ; it nearly shot his ear off, it was hanging by the skin.

Q. Did Wamuck state that his first impression was the lamp had exploded? A.
Yes, sir; he said, My God, that lamp has exploded and killed Mr. Clayton. And I
said to him, some fellow had shot him through the window. I used a very ugly
word.

Q. He said you used the word, " as I expected." Did you say that ? A. I don't
remember about that, but it's very probable I did say it.

Q. Did you have any reason to expect or to suspect' he would be shot ? A. No, sir;
but I felt just all the time I was down there that it was a dangerous piece of busi-
ness ; I can't tell why, but I felt that way.

Q. Where did you live at that time ? A. I lived up at Morrillton at that time.

Q. Where did you sleep that night? A. I slept there in the room where Mr. Clay
ton's body was lying.

Where did Mr. Wamuck sleep? A. Now, I can't say whether Wamuck slept in the
room or whether he slept in that little hall room in the bed where Mr. Clayton had
been sleeping; I am under the impression he slept in that hall room.

Q. How many other people slept in that house on that night ? A. There was my*
self, Mr. Armstrong, Mr Wamuck, Mrs. McCravens' grandson, and another young
man, I do not know his name, and I think he stayed there and Mr. Hobbs.

CLAYTON VS. BRECKINRIDGE. 743

Mr. BERGEN. Will you put on this map the window through which he was shot;
put a " W" right in that place on this diagram?

(Witness does so.)

Q. Now be kind enough to put on the map the letter " P " at the place where the
pistol was found, if you cau tell us?

(Witness does so.)

Q. Now is there anything between the pistol and the window? A. Yes, there ia
two fences there.

Q. Something has been said about some paling that were broken off? A. Yes.

Q. How near was that to where the pistol was found ? A. The pistol was found
right on the opposite side of the fence across where the paling was broken. 1 wasn't
there and didn't see where it was picked up, but I know where it was found.

Q. Mr. Coblentz was the man that picked it up ? A. Yes, sir.

Q. There are two crosses there to the right seemingly in the fence ? A. That near-
est one to the house is the gate to the garden. Where the other crossed out iu the
lane is where the follow stumbled against the fence.

Q. And seemingly dropped the pistol just beyond it ? A. Yes, sir.

Q. Yon have made little marks there? A. That represents the pickets. The pick-
ets on the fonco ; it is a picket fence.

Q. But these little dots ? Do those represent the tracks? A. They represent the
tracks; that is the road they came iu and went out.

Q. Up beyond here put an "R" where the rose-bush was? A. It wasn't a rose-
bush, it was a cedar-tree. There was several of them about in this yard.

Q. Why did they seem to have skulked ; is that right? A. Yes, sir.

Q. Weil, put that there ? A. I will just write the word tree there.

Q. Now, who had called on Mr. Clayton that night? A. Up there at the house ?

Q. Yes, sip. A. No, sir; there had been no one to see him.

Q. Where were you going to take testimony ? A. We was continuing it the next
morning; we had been at it for 3 or 4 days.

Q. Whose testimony was you going to take next day? A. I don't know, sir; I was
only the notary. Mr. Armstrong and Mr. Clayton was taking the investigation and
they never said anything about what they would put on the stand.

Q. The records show what you have taken? A. Yes, sir.

Q. Was this room the room in which you were who was going to sleep in that
room?- -A. That night?

Q. Yes. A. I don't know, sir; I was not, and neither was Mr. Clayton. Mr. Clay-
ton slept in the hall room in the little room and Mrs. McCraven came in there just
after supper and said to me I could sleep with Mr. Clayton, and I told her I was rather
a bad bedfellow and that I would probably annoy him, and I would rather nhe
would arrange me a bed somewhere else ; she said she would ; and there was a Ktrle
shed room there was closed in, and she went iu there and prepared me a bed there,
and that is where I was going to sleep, but I didn't sleep there.

Q. Was Mr. Wamuck going to sleep there ? A. Yes, sir.

Q. Then he was going to sleep in one end of the room and yourself in ? A.

Yes, sir.

Mr. MAISH. Was there any dog about the house?

A. No, sir.

Mr. McCLURE. Did you know a man by the name of Cap. Matthews f

A. Yes, sir.

Q. The Cap. Matthews spoken of by Mr. Sater here as being one of the men that
Hooper claims to have killed ? Do you know when Matthews departed this life?
A. Yes, sir; I believe I do. I remember the circumstances of his death.

Q. In what year was it ? A. To the best of my recollection that was in 178 or 1879, 1
said it was, but 1 believe I am mistaken about that. I have got the matter fixed iu my
mind and I know very well where he was killed at.

Q. Where was he killed? A. At Perryville. Thyhad him indicted down thereat
one time for something concerning the murder of old man Hooper; I think he was in-
dicted at the time Charley Reed was prosecuting attorney.

Q. Was Matthews killed in the day-time or night-time? A. In the night-time.

Q. Did you know this Thomas Hooper that went to California ? A. Yes, sir; I went
to Louisville the same time ho went to Gal.

Q. What, yi-ar was that? A. In 1870.

Q. How many years do you know Hooper had been gone when Matthews was
killed ? A. He svent in 1870, and I think Matthews was killed along in In76, 1H77,
1878, or 1879.

Q. Anyway this was some years after Hooper hud left the country ? A. Yes, sir.

Q. Do yon know a man by the name of N. N. Conway who got killed? A. No, sir;
I was only told of a, man got killed by that name.

Q. Did you know a man by the name of Capt. Gibbou or some such name as that ?
A.. Yes, sir.

744 CLAYTON VS. BEECKINRIDGE.

Q. Do you know whether he died before or after Hooper left this country to go to
Cal. ? A. Gibbons died after that.

Q. Long after that ! A. Yes, sir.

Q. Something has been said about Mr. Hooper having been hung; did you know
Mr. Hooper in his life-time t A. The old man I I have seen him.

Q. Did you know him ? A. I can't say that I knew him.

Q. Did you know him by sight ! A. Yes, sir ; Hooper was killed in 1868. I went
down there in that year. I came to this country with C. C. Eeed. Reed seems to
have known Mr. Hooper or had met him ; I don't remember where it was, but it
was at the landing on the river here some place, and went up there over on a steam-
boat. I wrote to his mother after that, and told her he was shot, and I knew it to
be the old man Hooper at that time. I didn't live in this country then. I went up
to Johnson County, the place where I live now, and the place where I was when
Hooper was killed.

Q. Do you know how he met his death T A. Well, I have always been under the
impression or told that the militia killed him.

Q. Then he wasn't hung t A. I don't know how they killed him whether they
shot him or hung him.

Mr. MAISH. You are a lawyer T A. Yes, sir.

Q. How long have you been a lawyer! A. I was admitted to the bar in 1868 as
well as I remember.

Q. You were a personal friend of John M. Clayton in his life-time ! A. Yes, sir; I
suppose you can say that I was. But I had never met him very frequently.

Q. Both members of the same political party and of the same political sympathy !
A. I suppose so, sir.

Q. You was engaged at that time taking depositions for him ! A. Yes, sir.

Q. You was in attendance at the coroner's inquest all the time, was you, whilst
it was going on ? A. Yes, sir.

Q. How many jurors composed the inquest! A. I don't remember now whether we
had 12 or not.

Q. What is your best recollection ! A. My best recollection is there was 12 of
them.

Q. Where were they selected from ! A. From among the citizens there at Plum-
merville.

Q. In the town of Plnmmerville ! A. Yes, sir; there may have been one or two
men on the jury from the country.

Q. Do you remember who they were! A. Why, no; 1 couldn't tell you now; I
know several of them.

Q. Mention those you remember. A. lean not remember their names now; what
I mean to say is I know several of the names who lived there, but I can't remember
now who they were.

Q. Were there a great many people there ! A. Yes, sir.

Q. Whilst the inquest was going on I A. Yes, sir ; there was a large crowd there.

Q. All the time! A. I think so. Yes, sir; there was a great many people around
the house, and a great many came to the hall and about the room where they could
be, and after adjournment we left the house and went to the hall.

Q. There was a great many at the house when Mr. Clayton was killed in the first
place f A. Yes, sir.

Q. How many ! A. I suppose at one time there was over 100 people atone time, I
reckon.

Q. How many people did you see at the inquest down there! A. I don't remem-
ber.

Q. Will you state if there were about 2,000 at the house, do you think! A. Well,
there was a large crowd there all day.

Q. As many as 100! A. Yes, sir; half the colored people of the township were
there.

Q. Were there a great many white people ! A. I don't think there was; that's not
my recollection.

Q. Were there not white people there! A. Yes, sir; some white men there.

Q. Were there some white men at the house 1 A. Yes, sir.

Q. In the crowd there ! A. Yes, sir.

Mr. LACEY. Do you remember who those white men were!

A. No, jsir ; J don't.

Mr. McCAiN. How many people gathered in there that night of the killing!

A. Nearly everybody in Plnmmerville gathered in there that night.

Q. Was the house packed ! A. Yes, sir; the house was full. They came in there
and looked around there until we laid Mr. Clayton out and covered him up, and they
all went off.

Q. Except you watchers! A. Yes, sir.

Q. Four of you watched ! A. Yes, sir.

CLAYTON VS. BRECKINRIDGE. 745

Q. Was there anything that could be done that you all conld have done there that
night that you did not do? A. I don't know anything else that I could have done.

Q. Did everybody else do everything that you thought they might have done ?
A. I think so. We notified the authorities. Mr. Armstrong telegraphed to the
sheriff or clerk or some of them up at Morrilltou ; notified them; notified the gov-
ernor and I think notified Mr. Clayton.

Q. Was there any courtesies or assistance among the citizens there in anything
you needed done ? I don't mean in regard to authorities, but about the house there
that night or the next morning. Did you have any help? A. Oh, yes; there was
nothing to do but lay him out of that blood and lay him back against the wall.
While the people were up there I didn't see any indications from any of them at all
that they would object to helping.

Q. Well, the people seemed to be interested in the occurrence there ? A. Well,-I
don't know ; they wouldn't talk much about it.

Q. They would not talk much about it ? A. No, sir.

Q. They gathered about there quite a large crowd, you say? A. Yes, sir; the
people right there in Plummerville seemed to be very reticent about it and would
not talk.

Q. You were a little reticent yourself, were you not ? A. Yes, sir.

Q. Were they any more reticent than you ? A. I don't know that they were. I
didn't talk.

Q. Well, didn't you get the impression of it, and didn't you have an impression
there that you needed to act with some prudence to be there at that time ? A. Yes,
sir.

Q. But so far as taking care of and looking after Col. Clayton was concerned there
was no backwardness about that on the part of anybody ? A. No, sir; none that I
saw.

Q. This old lady you were stopping with, did she seem to be a poor old lady, or well-
to-do ? A. Well, she was rather a poor woman.

Q. Didn't fix up in much style ? A. No, sir.

Q. Well, were the colored people attentive about there ? A. Yes, sir.

Q. Did Judge Clayton or Gov. Clayton send any of you any telegrams of any
kind ? A. He didn't send any to me. I don't know whether there was any sent to
Mr. Armstrong or not. There was no telegrams sent in my name. He done all the
telegraphing.

Q. What time of day did you have that inquest ? A. We commenced it in the
morning.

Q. What time did you get through ? A. I was asked that awhile ago, and gave it
about 11 o'clock ; but I wish to state I suppose it was about 10 o'clock or 11 when we
commenced.

Q. What time of day did you get through ? A. I suppose it was an hour or two
hours.

Q. You hadn't got through when the train arrived? A. I don't know whether we
had or not, but it seems to me we had ; but I am not sure of that.

Q. What was the reason you didn't go to the train that day ? A. Me ?

Q. Yes, sir. A. I don't remember why it was I didn't go.

Q. You didn't go to meet Judge Clayton? A. No, sir; I didn't go to the train.
And that makes me think now whether they hadn't got through with the inquest
when the train come, but I can't remember abont that. I don't remember what 1 was
doing at the time the train came.

Q. You know you was there and you did not meet him? A. No, sir; I did not.

Q. And you think you was there and taking testimony? A. Yes, sir; I think so
now.

Q. Were you engaged after the coroner's jury had rendered its verdict to put mat-
ters in shape and kept you longer than you would have been ? A. It seems to me that
I wrote some after that. I picked up a pencil and wrote some for the coroner, but I
do not remember what.

S. Who was on that, jury ? A. I couldn't name a man that was on it; I knew sev-
of the men, but I can't tell now.

Q. See if you can't call some of them ; who summoned the jury ? A. I think Mr.
Bently summoned the jury. Yes, sir ; I remember one man was on there is man named
Patterson was on the jury, and a man named Pate, Robert Pate, and probably a man
named Sagg was on it. I am not sure about him, but I rather think he was.

Q. Is that all you remember now ? A. Yes, sir.

Q. Your impression is they were Plummerville people? A. Yes, sir; there might
have been one or two or two or three from the country; that man Sagg I think was
from the country and perhaps two or three.

Q. Were they all white ? A. I think there were some colored men on ii, is ray
recollection now.

746 CLAYTON VS. BRECKINRIDGE.

Q. Who were the colored men ? A. I couldn't say; I don't know that I knew any
of them.

Mr. McCAix. Could you get any information before the coroner's jury at all as to
who he was killed by f

A. No, sir.

Q. Or how it happened? A. No, sir.

Q. You couldn't learn anything yourself on that question? A. No, sir.

Q. Well, did the people did any of them seem to have any opinion about that
the people that lived out there ? A. I didn't talk to but one or two men about it, and
they didn't have any opinion.

Q. You didn't talk with them ? A. No, sir ; they didn't seem to want to talk, and
I didn't talk much either.

Q. Is that the only reason why they were reticent because you didn't want to
talk ? A. I don't know that it was; I couldn't tell you.

Q. Why didn't you want to talk to them? A. I didn't want to talk about that
matter; that is, simply because I was afraid to talk about it was why.

Q. Well, neither you nor anybody else seemed to have any opinion about how that
crime was perpetrated or who perpetrated it, and could get no information about
it ? A. No, sir; I got no information and got no opinion, and I am satisfied if I had
went to any man in Plummerville and asked him if he knew, I don't think he would
have said; and I don't suppose any man in i'lummerville knew.

Q. Well, that wasn't very remarkable; they would be backward in saying who
they thought did it if they didn't know? A. That is my idea; they thought so.

Q. It was just prudence that everybody exercised on such occasions ? A. I thought
it was a fact that they didn't know.

Mr. BKRGEX. You were away from home T

A. Yes, sir.

Q. Where is your home? A I lived at that time in Morrillton, and that was the
first night I had ftaid down there. I had been riding down there on horseback and
going back at night, and Mr. Clayton suggested I should stay all night with him, and
we could get to work that much earlier. I didn't want to stay anyway.

After the introduction of testimony for contestee from Augusta precinct, Woodruff
County, the committee adjourned to 9 o'clock a. m. May 7, 1890.

The following is the testimony of Womack :
E. H. WAMUCK, called, sworn, examined, and testified.
Direct-ex. :

Q. Where do you reside ? A. I live out here in Benton, Saline County.

Q. Were you in Plummerville on the 29th of January, 1889? A. Yes, sir.

Q. What time in the evening did you go there ? A. I think it was about 7 o'clock
at night ; just about dusk.

Q. By what species of conveyance did you go there ? A. I came down on a freight
from Roselle.

Q. Where did you go when you got there ? A. I went to Mr. Simms's hotel.

Q. How long did you remain there ? A. I wanted to get a bed and sleep, and Simms
told me his beds were all taken up and he didn't have any bed for me, and he told me
where I rni^ht go over t'j Mrs. McCraven's. I went straight across to where Mr.

H kept, and went to go across the creek on a log, and I went back down and got

a man to show me the way up there, some time about dark.

Q. What time in the night did you get to Mrs. McCraven's house? A. I think it
was about 7 o'clock, or a little after 7. I know it was pretty late when the train got
up there.

Q. Did you get supper then ? A. No, sir.

Q. Where did you get supper then ? A. I got it from Mrs. McCraven.

Q. How long after you got there until you got supper? A. Just a few minutes.
She told me she would fix me supper. They had all been to sapper.

Q. She did fix you up some supper? A. Yes, sir.

Q. After you got your supper where did you go ? A. I went into the room where
Allnutt and Mr. Clayton was.

Q. Had you been in the room in the early part of the evening ? A. No, sir.

Q. Your first appearance there was after supper? A. Yes, sir.

Q. Were you acquainted with cither of these people ? A. No, sir.

Q. Were you introduded to either of them ? A. Well, not in there ; there they was
busy talking. Mrs. McCraven said she would introduce me to them, but they was
busy talking, and I just sat down ; I didn't have anything to say.

Q. Did you know either of them at that time ? A. No, sir.

Q. They were both strangers? A. Yes, sir: but I had learned their names; Mrs.
McCraven had told me at supper that Mr. Clayton and Mr. Allnutt were there; she
told me she would go in there and introduce them, but they was busy.

CLAYTON VS. BRECKINRIDGE. 747

Q. What were they doing ? A. I believe then I don't think they was doing any-
thing but just sitting talking. They was very busy at their books, maybe, and was
sitting down. I was sitting down near the table and Mr. Allnutt and Mr. Clayton
was close to me, and they were talking.

Q. How long did they remain in that position ? A. I don't remember, but I think
Mr. Clayton got up and Mr. Allnutt picked up a paper and was reading a paper.

Q. Sitting near the window? A. Sitting near the table where the lamp was, right
close the window.

Q. How long did they remain there at the table ? A. Well, I don't know exactly ;
within some 20 or 30 minutes, maybe longer ; I couldn't tell exactly.

Q. What was Clayton doing during that interval? A. Well, now I think I know
he was walking the floor for some time.

Q. Was he talking to anybody? A. Yes, sir; he was taking to Mr. Allnutt as he
walked.

Q. Was any portion of their conversation addressed to you ? A. No, sir.

Q. What did he appear to be taking to Allnutt about ? A. Well, he was talking
about the election, in the conversation, one thing and another in Conway Co. Well,
Allnutt was telling him how they had conducted the election.

Q. In that tp. or some other? A. In that tp. I don't know of any other, but I
think may be somebody spoke about Woodruff; I paid no attention.

Q. Where did you say Allnutt was sitting ? A. By the table near the window.

Q. About how late in the evening was Allnutt sitting reading the paper? A.
Well, I expect it was something like half after 7 maybe. Of course it may not be
just correct, but something a little after or half after 7 when I went in there, and I
sat down there and they sat and talked some, and Clayton got up and Allnutt got
the paper and sat down and was reading. He was sitting down there reading a news-
paper.

Q. Well, wLat then ? A. Well, I, after I sat a while I said I had some writing to
do, had some figuring to do. My business was stoneware business, and I had de-
livered some of my wares at Russell, and was shipping some back from Plufumer-
ville to Russell and had to go back there to collect, and get down next day to Little
Rock. I had some figuring to do, and when he got np I sat down and was figuring
some 20 or 30 minutes, and was writing. It was about 9 o'clock and I was tired and
I concluded to go to bed. During that time I was there, almost all the time, Mr. Clay-
ton was walking to the door, and then to the bed and theu back to the door, so he
walked and turned around back and forth. When I got up out of the chair, he come
and didn't get more than half way sat down in the chair until the gun was fired, and
I said to Mr. Allnutt the lamp had exploded, and he said no it was somebody had
killed Clayton. And I said let's pick him up, maybe he ain't dead, and he said some,
body shot him through the window. He said "That is just as I expected." He said
he was looking for something like that. I said " Is that so ? " to Mr. Allnntt, and he
said " of course, don't you hear the blood running there. The blood is running just
like water out of a jug," and I noticed it after he called my attention to it; afc the
time I didn't know. The concussion had blowed the lamp out and there was just a
little fire in the fire-place. We could just see the body of the man to see he was
lying there. We just walked into the other room where Mrs. McCraven was and she
asked what was the matter, and we said somebody had shot Clayton. And just
about that time there was three persons came in, she said they were her boarders,
and we got a lamp and walked back, and we found he had fallen right back with his
feet hanging over his chair ; I don't think he ever moved at all.

Q. His feet were hanging over a chair ? A. The chair he was sitting down on.
He fell right over and the back of his bead struck the floor.

Q. His body fell over the chair? A. Yes, sir.

Q. His feet were lying up over the chair? A. Yes, sir; there was just enough fire
for us to see his legs where they hung up over the chair.

A. You went back into the room ? A. Yes, sir, and he was lying there just as we
left him.

Q. His life was extinct? A. Yes, sir; we didn't see any signs of life.

Q. What time elapsed from the time the gun was fired until you went back in the
room ? A. Oh, I suppose 5 minutes. I was afraid to go back there right quick. I
didn't know whether they was gone or would shoot again, but I hesitated to go back,
but finally we went back.

Q. Who went back? A. Well, Mr. Allnutt I know he was in front and I know I
was behind, and I think a man they call Muudon had come in. They had a lantern.
It was not over three minutes that they come after he was shot.

Q. They came right past the window through which Clayton was shot ? A. That
is the way I think they come. Of course I was listening for everything made any
noise and I could hear them walking right round, and when they come we didn't
know hardly whether to let them in or not, but Mrs. Cravens knew their voice.

748 CLAYTON VS. BKECKINRIDGE.

Q. Did you hear anybody immediately after the report of the gun did yon hear
anybody going away from the outside ? A. No, sir ; I didn't hear a thing.

Q. At the time that you were sitting there at the window writing at the table, you
didn't hear anything? A. I hadn't noticed any noise.

Q. No noise from the outside there ? How long after you left that seat before
Clayton was killed ? A. I don't think it could have been more than a minute or two
minutes; that is my recollection.

Q. Had you just gotten out of your seat ? A. I just walked off in front of the fire-
place and was a little chilly, and I just started to the fireplace and he went and sat
down in the chair, and before he got himself seated, he was just about in a stooping
position, a sort of half-sitting down position, talking to Allnutt. He was talking
to Allnutt all the while. He was in this position when he was sitting down, stoop-
ing, and had his hands in his pockets, and he had been walking the floor with hia
fingers in his pockets.

Q. Did you remain there the balance of that night ? A. Yes, sir.

Q. Do you recollect what kind of a curtain hung over the window I A. Yes, sir; it
was just a calico curtain ; it lacked about two inches I suppose of covering the win-
dow where it parted.

Q. Do you recollect that curtain, what its condition was there ? A. I think the
curtain had a hole that was left there as it hung, separated but not far. It lacked an
inch and a half I suppose of covering the window at the bottom ; it spread apart a
little.

Q. Did the shot destroy the curtain in any way ? A. It tore a hole in the side near
the middle of the window. I don't think it tore it to the edge. You could put your
fist through the hole.

Q. The curtain separated of its own volition ? A. Yes, sir.

Q. Where did you remain the balance of the night? A. Well, I stayed up with
the corpse until about 1 o'clock, or I reckon it was about 12 or 1 when I went to bed.

Q. Did you hear anybody around there during the balance of the night while you
were staying up ? A. No, sir.

Q. Something has been said about a blanket having been put up at the window ?
A. I think Mr. Allnutt put it up some time after; he said he didn't like the looks of
that window. He put up the blanket over it ; I think he did ; I won't say. It may
be Mr. Armstrong put it up ; I ain't positive. Somebody put up that blanket and he
suggested to somebody to help to put it up.

Q. Something has been said about some tracks being about there around the win-
dow next morning. A. There was.

Q. Did you have any occasion to look at them ? A. Yes, sir; I got up and looked
at them.

Q. Before many people had been about the door ? A. There was a few had been
about the door. Those who stayed about there all night probably had been out.

Q. What tracks at the window did you discover ? A. I looked ; there had been two
persons around there, walking, and there was, it looked, about a No. 8 shoe, and I
didn't notice the length of it.

Q. Now did you make any observation under both windows ? A. No, sir, I didn't ;
only the window where the shot was fired.

Q. That was the window near the chimney? A. Yes, sir.

Q. Did you make any attempt to trace these tracks? A. I did, just to the garden
gate. I was I saw it, walked up right to a little garden gate and went through that
garden gate and I didn't follow that up any further than the first gate in the garden ;
but some parties had passed out where there was some palings off the fence, and I
think they come and went back the same way, from the looks of the tracks.

Q. Was there any path which led from the garden gate ? A. I don't think there
wan any track.

Q. No track ? A. There was tracks, but no regular path where the people went in
and out.

Q. Was that a dark night ? A. I think it was starlight ; there was no moon, it
was tolerably dark, I think, is my recollection.

Q. How wide was that gate? A. I suppose 3 feet to three and a half.

Q. Had it any fastening? A. I don't remember now whether there was any shut
to the gate or not ; it was wide open.

Q. In passing through that gate going out towards the garden what point would
that run to, the road ? A. No, sir.

Q. That is not the point that runs out to the road ? A. No, sir ; there is woods
back of the garden.

Q. I understand your best impression is these tracks came through that gate origi-
nally ? A. From the signs it appeared to me that it looked like the same tracks had
come there.

Q. And the persons who came through were familiar with the opening of tha

CLAYTON VS. BRECKINKIDGE. 749

fence? A. That's the way T think they came from what I could see. I dou't know
whether they was familiar with it or not. I just went to the iirst gate.

Q. How long did yon remain at Plummerville after that ? A. 1 left and came down
when the corpse come. I got through with my business and canie down.

Cross-ex :

Q. There was no one in the room but Allnutt and yourself? A. No, sir.

Q. Did Allnutt stay all night? A. Yes, sir ; he stayed all night.

Q. Who else was there during the night ? A. There was nobody, until after the
shooting several came in. Mr. Armstrong came in there was staying up with the
corpse. Several I didn't know came in when they heard of it.

Q. What did you do with the body ? A. Well, we moved it back out of the blood,
and 1 tliiuk they put a quilt under him and one under his head, they got a double
quilt and pnt it under his head, and laid one over him and moved hiui out of the
blood.

Q. Was he straightened out ? A. Yes, sir.

Q. You think there was a quilt under him and may be something over him ? A. I
think there was. I know there was a quilt doubled up and put under his head.

Q. There was a watch kept up all night ? A. Yes, sir; Mr. Armstrong staid up
awliilo, and some others after I went to bed.

Q. Was there a quilt laid under him, and something over him, or just something
under him ? A. I think there was something over him; I don't remember particu-
larly.

Q. There was several came in there, but only four of yon kept watch? A. Yes, sir.

Q. Who kept watch with you ? A. Mr. Armstrong was up as long as I staid there.

Q. Then you wenfc to bed, and who got up, Mr. Allnut? A. Mr. Allnut, I think,
stayed ; he was staying up after I went to bed ; I think he stayed up all night, but I
don't know.

Q. Where \v ere you next morning? A. After breakfast 1 went down to finish de-
livering my ware.

Q. Did W. T. Hobbs keep watch that night ? A. 1 don't know. I know Mr. Hobbs
very well, but there was so many and I was kind of excited.

Q. Did everybody seem to be very attentive in doing what they could that night ?
A. Yes, sir ; Mr. Armstrong said he would go right off and send off some dispatches
as soon as he could, and we stayed there and he went off to send off some dispatches
and was moving around pretty pert.

Q. Did everybody seem to be attentive? A. Why, they appeared that way to me.

Q. Did you see any difference between the attention given there and what is ordi-
narily given when anybody is dead and the people gather about? A. They seemed
to be all right smart excited about it.

Q. Who took charge of his effects, if you remember ? A. Next morning ?

Q. Well, any time there; who took charge of his pocket-book, or anything of the
kind ; did anybody look after that? A. Well, it seems to me like the marshal did ;
1 forget his name. I think somebody spoke about getting the marshal. Perhaps Mr.
Carroll Armstrong was there present.

Q. Who seemed to superintending it or to be in charge ? A. Mr. Armstrong.

Q. Do you know whether Mr. Allnut took charge of his satchel, or anything, or
what Mr. Allnut did about there ? A. I think probably he did take charge ; yes,
sir, I think he did.

Q. Did he seem to be interesting himself ? A. He seemed like he was interested
right smartly, so far as going out of doors and running around is concerned ; I think
Mr. Armstrong did most of that ; I didn't think Mr. Allnut went out that night.

Q. Was there any pursuit organized that night by any one that you know of? A.
By Mr. Alluut ?

Q. By anybody ? A. No, sir; J don't know that there was.

Q. What did Mr. Alluut do in the way of finding out who did the shooting ? Did
he do anything? A. No, sir; he never went out of the house op to the time I went
to bed.

Q. Did he ask anybody else to go out around ? A. Not that I heard of.

Q. Do you know that he took any steps or have any of the officers to do any-
thing ? A. I don't know but he did.

Q. Yon think he didn't go out of the house? A. I am satisfied he didn't go out as
long as I was up ; I heard him say he wouldn't go out.

Q. You think he was a little alarmed ? A. Yes, sir ; he was a right smartly scared,
and so was L

Q. You don't know of his asking any one else to go? A. No, sir.

Q. You know whether he requested anybody to send' for any officer? A. I don't
remember of hearing him request anybody at all; I don't remember of hearing him
Bay anything about it.

Mr. BERGEN. How long had you been in Plummerville?

750 CLAYTON VS. BRECKINEIDGE.

A. I just came that night about dark, I reckon.

Q. Who had yon seen after yon arrived in Plummerville ? A. I hadn't seen any-
body, except I went to Mr. Sims at the hotel, and he told me he didn't have any bed
for me, and told me I could get a bed over at Mrs. McCravens's.

Q. Who did you see before you left Pluimnerville, in a business way f A. I saw all
the merchants ; I had a bill of crockery there to deliver to most all the merchants.

Q. What was the object of your visit to Plummerville? A. It was to deliver stone-
ware; 1 was in the crockery business.

Q. Did you represent a mercantile business? A. No, sir; I represented stoneware
and crockery ; 1 represented that business down there.

Mr. LACEY. How high above the window-sill did the shot come in ?

A. Well, sir, I think about a foot or a little over.

Q. Did it go in through the second pane of glass? A. I think the second pane.

Q. Very near the center of the window? A. Yes, sir; it came in between where
th>', curtains were apart.

Q. Did some of the shot go through both curtains? A. No, sir; it seemed to me
the shot was slanted and just put a hole through one curtain.

Q. Suppose the window was where I am, it was just about this way from the win-
dow ? A. The window was right here, and he shot him as he came along and sat
down.

Q. How was his face ; was it turned towards the window as yours is towards me T
A. No sir; but about this way; he was looking towards Mr. Allnut.

Q. So that the murderer had apparently fired the shot into his ear ? A. Yes, sir ; he
shot him as he was sitting down.

Q. In the act of sitting down? A. Yes, sir.

Q. You heard no confusion nor anything of the kind? A. No, sir.

Q. Did you notice the tracks next morning ? A. Yes, sir ; I noticed the tracks.

Q. Did yon see where the man had fallen down ? A. No, sir.

Q. Did you hear since any one saw where a man had fallen down ? A. No, sir; I
heard where they had went against the fence and went out at the gate.

Q. Did you notice tracks at the window looked as though a man had been moving
around ? A. Yes, sir ; it appeared so.

Q. Was it a single track ? A. It appeared to me he had been tramping around a
little ; several tracks together.

Q. As though these men had to stand there and watch him for awhile? A. It
looked like they had been moving around there a little.

Mr. COOPER. The tracks of two different men T

A. It looked to me like it was.

Q. Different size tracks or different foot-gear? A. Yes, sir; I think it appeared
they both had on overshoes, if there was two of them. Of course one man could have
made those tracks.

Q. What was yonr opinion at the time ? A. My opinion was there was two.

Mr. MAJSH. Did you notice whether one of them had new rubbers on ?

A. I don't know whether they was new rubbers or not.

Q. You could tell it from the marks ? A. I cou.'d tell they was rubber overshoes,
but I don't know whether they was new or not.

Mr. MCCAIN. Did you inquire to see if you could get any clew as to who had per-
petrated that act the next morning ?

A. No, sir; I did not.

Q. Yon didn't hear of anything you would regard feasible ? A. Not a word. Every-
body seemed to be astonished, and everybody of course was excited, and didn't know
hardly what to do. That was the fact about it. It appeared to me that way that
they didn't know what to do or what steps to take the next morning.

Q. Didn't Maj. Breckinridge write you once to get the particulars ? A. Well, yes.
I didn't get the letter direct from Breckiuridge ; Armstrong wrote me.

Q. Did you write to Breckinridge? A. Yes, sir.

Q. You say you wrote to him ? A. No; I didn't write to Breckinridge; I just an-
swered Carroll Armstrong's letter. It was a request of Breckinridge to know the
particulars.

Q. Do you know that Mr. Armstrong received the letter? A. Yes, sir; I think he
did. I think he told me so. I know it was a request of Mr. Breckinridge ; he sent
the letter to Morrilton.

Q. Did you see the people there next morning? A. Yes, sir.

Q. How did the people talk about it next morning, or did you hear anybody talk
about it ? A. No ; I did hear people talk about it some. They seemed to regret it
very much that it had happened.

Q. Did they seem to feel considerable interest in the occurrence ? A. Yes, sir ; they
talked that way.

Q. Did you get frnn them any idea of how that had occurred or anything? A.
Well, no, sir; I didn't. They seemed to be astonished.

CLAYTON VS. BEECKINKIDGE. 751

It will be seen that all the evidence so far is circumstantial. The peo-
ple were almost stupefied with astonishment, and when Mr. W. H. H.
Clayton arrived next morning they were nearly all at the building
where the coroner's inquest was held or was being held. Even Mr. Al-
nut was there, and he was held there by his deep interest in the tragedy
and proceedings until after the body was taken away.

To still further show the state of public sentiment there at the time, a
very important feature in guiding suspicion, we call attention to the
statements and complaints upon this score of Mr. W. H.. H. Clayton
and to such as have been circulated generally.

It has been said that Col. Clayton was forced to go to Mrs. McCra-
vens's house, on the edge of the little town, being suspiciously denied
lodging at the stopping place near the railroad. Mr. Woinack had to
do the same, for the assigned reason that the other place was full or the
man's wife was sick. Mrs. McCravens was a sister of a brave officer in
the Union army, and could hardly be looked upon with suspicion. No
suspicion is attached by any one, except in this alleged connection, to
the keeper of the other boarding-house. Mr. Clayton says the people
did not come about him. As Alnut did not come, the reasons that kept
him where the coroner's jury was must be accepted as sufficient to keep
the others. Besides, neither he nor they knew of his coming. All were
absorbed in the proceedings at and about the coroner's place of inquiry.

He says the people of the town put Mrs. McCraveus up to charging
him a big bill tor damages. She and her daughter both deny it. He
holds Mr. Armstrong responsible for what he considers the neglect of
his brother's body. Mr. Alnut shows that the body was decently and
tenderly cared lor, and, while covered and arranged, was left on the
floor at his .suggestion, Mr. Armstrong having desired to place it on the
bed. All the arrangements met the approval of Mr. Alnut and the at-
tending physician, and Mr. Aluut took charge of the effects. He com-
plains that no ladies met him. Mrs. McCravens and her daughter, Mrs.
Hall, were in the house, and Mrs. Hall explains that she was so fright-
ened that she didn't know what to do, and she thought the gentlemen
would attend to the body. It is fair to conclude that the other women
of the place were shocked and startled and thought and felt pretty
much as Mrs. Hall did.

Pluuimerville is a little trading place on the Little Rock and Fort
Smith railroad, with but few inhabitants, and the township, including
the town, if it may be called a town, has a population of four or five
negroes to one white person.

The facts utterly discredit the idea that the community was " terror-
ized " or anything of that sort, as is so frequently expressed. As Mr.
Alnut says, the people were "astonished," and they evidently " didn't
know" anything. They evidently acted as such a community would
naturally act in perfect innocence, and yet in the immediate presence
of such a tragedy. It shows that the community was both ignorant and
innocent of the crime, and that hence we must look to individuals alone
for guilt, or, if we still suspect a community, then to some other com-
munity than the one in which the crime was committed. It remains to
be seen whether the deed points to the collective sympathy and guilt
of any other community, or simply to the guilt of individuals. This
character may be clearly determined while the actual perpetrators may
still remain wholly undetected.

We forbear any criticism upon the statements of W. H. H. Clayton.
They evidently were born almost solely of his feelings, and hence are un-
reliable as evidence. John M. Clayton was his twin brother, and the

752 CLAYTON VS. BRECKINRIDGE.

grief and shock of bis death can readily account for his conceptions.
Tie was at one time very bitter in his views about the Hooper theory of
the murder, thinking the governor had been misled, and that he was not
properly justified in giving it the attention he did. This he has already
corrected when the governor said to him (page 555 testimony) :

After reading the Sfiter letters and hearing the testimony, he said in his testimony
that he believed that 1 was misled in some way to go off after a clew which would
probably lead away fr m rather than to the murderers. Now, after reading the let-
ters, and having a full statement of the facts connected with it, I would be glad if he
would state now whether he now thinks that I had justifiable grounds for pursuing
that clew or not.

W. H. H. CLAYTON. You had, sir.

We mention this, not as additional evidence of the unreliability of
his statements and opinions upon this subject, for it shows that he is
beginning to see the unreasonableness of some of his expressions, but
we do it as an exhibition of his sincerity and to prevent our judgment
of his statements from being construed as any reflection upon his
veracity. His condition and the circumstances account for his errors,
which call for sympathy rather than strictures. We doubt not the
errors will soon appear as apparent to him as they must be to others.
Censure here is only appropriate for those who knowing better continue
to use tht se misstatements as facts.

But to fully present the preliminary basis of all right reasoning about
this matter, we insert the testimony of Mrs. McCravens, and her
daughter, Mrs. Hall, at whose house Colonel Clayton was killed.

Mrs. MARY ANN MCCRAVENS, called, sworn, examined, and testified:

Q. Where do you reside now ? A. Plummerville.

Q. Where did you reside on the 29th day of January, 1889 T A. Plummer.

Q. How long have you resided there prior to that time f A. 10 years.

Q. In what business were you engaged ? A. "Keeping boarders.

Q. State if on that 29th day of January John M. Clayton was boarding at your
Louse ? A. Yes, sir.

Q. It was iu your house he was killed ? A. Yes, sir ; me and my daughter live
together.

Q. State what time in the evening the killing took place; if you know ? A. About
9 o'clock ; it lacked 5 minutes of 9 by our time-piece.

Q. Do you know whether your time-piece was approximately correct! A. I don't
know. I can't say.

Q. How was it as compared with the town time? A. I don't know whether they
had a time-piece in town, but I saw it lacked 5 minutes of 9 by our clock there.

Q. At what time do you usually have your meals? A. Well, about 6 o'clock.

Q. About 6 o'clock in the morning? A. About 6 o'clock iu the evening; I am
speaking about supper.
' Q. How about noon time ? A. At 12 o'clock.

Q. Well, now, when your boarders come in there, did they come about when your
clock was 12 and 6? A. Yes, sir; generally.

Q. It seemed to be your clock was then about like it was in town ? A. Yes, sir,
it is.

Q. You say you think it was about 5 minutes of nine ? A. Before 9.

Q. How many beds was there in the room in which Mr. Clayton was killed? A.
Two.

Q. What number of pieces of furniture were in the room ? A. Bureau, table, and
chairs.

Q. How many chairs, do yon recollect? A. I don't remember.

Q. Is there a fireplace in that room ? A. Yes, sir.

Q. At which end of the house is it ? A. The north end of the house.

Q. How wide is that fireplace ? What size stick of wood will it take in ? A. Ahont
that l'>ng, 2 or 3 feet; I reckon about two and a half.

Q. How many windows were in the room ? A. Two.

Q. Where were they? A. One in the north end of the house and one in the east
end.

Q. In the same room ? A. Yes.

Q. What kind of a table was there ? A. Just a common, plain table to set a candle
on.

CLAYTON VS. BRECKINRIDGE. 753

Q. Round or square? A. It was kind of square at the corners.

Q. About how large was it across the top ? A. I reckon about that wide across.
^Indicating.]

Q. You mean in length, or that much square ? A. Square.

Q. Was that a square table ? A. Yes, sir.

Q. How many days was Mr. Clayton in your house down there? A. I declare I
don't remember how many days he did stay there.

Q. You don't recollect 1 A. No, sir.

Q. Now you ought to know. A. I tell you I have been so confused, but I waut to
tell the truth ; but I disremeniber how many days he staid there.

Q. Didn't he go there on Thursday evening before that? A. I ain't going to say
positively, for I don't recollect. I want to tell the truth about everything. The first
was a gentleman with him, and they took dinner and in the evening they came over
to our house.

Q. On Thursday ? A. I believe it was.

Q. Did Mr. Clayton and the gentleman who was with him do you recollect whether
they remained at your house during that time? A. They came and spoke for board-
ing.

Q. Who was the man that first spoke for boarding ? A. He spoke for boarding
himself; he never called Mr. Clayton's name ; he just spoke for himself and another
gentleman, and I took him in, and he said they would be there for some 8 or 10 days.

Q. How many parties were in the room when he came to see you about getting
board in the house ? A. Well^ I will tell you the room they occupied together had
but one bed in it, and they slept together. It was a hall ; there was just one bed in
it they occupied to sleep in.

Q. Is that the room in which Mr. Clayton was killed? A. No, sir; he was killed
in the room where the fire-place was.

Q. Did they sleep in the room where the fire-place was? A. No, sir ; he slept in
the place where the hall was I speak of.

Q. Was there any window in that room ? A. No, sir.

Q. Now as to the furniture in the other room where the fire-place was, how many
beds were there when this first gentleman went over there ? A. Just the two beds.

Q. Who did you say it was spoke for boarding there ; what was his name ? A. Mr.
McCord.

Q. Did you change the position 'of the beds in that room at any time after Mr. Mc-
Cord engaged rooms of you over there ? A. No, sir ; not any.

Q. They remained precisely the same ? A. Yes, sir ; the same.

Q. Did they remain in the same place? A. Yes, sir.

Q. The table was in the same place ? A. Yes, sir.

Q. There had been no movement or moving of the furniture from the time he went
there ? A. No, sir ; not any.

Q. Can you tell me what happened immediately or what you did upon hearing the
shot? A. Well, I can't tell you nothing, only we was all scared to death when we
heard the shot. I can't tell you much about it. Me and my daughter was just there
alone and Mr. Wamuck and Mr. Allnntt was in the room with Mr. Clayton, and Mr.
Alluutt came running in and we said the lamp was exploded, and he said no, some-
body had shot Mr. Clayton, but none of us ever went into the room; I went to see if
the lamp had exploded and set the building on fire; we never went in the room.

Q. How long was it after the shot was fired before anybody went in that room ?
A. Just a short time.

Q. Who went into it first; do you recollect about that ? A. I don't recollect.

Q. Do you recollect who took the light in there? A. I don't know.

Q. Who were the first persons that came to your house immediately after the shoot-
ing? A. Well, I can't tell you; there was three gentlemen, but they didn't go into
the room at all ; they came in the gangway, in the door.

Q. Who were the first persons you saw there ? A. I don't know.

Q. It has been stated that some members of your family were the first persons
there who boarded there, came shortly after? A. They came in a few minutes.
Mr. Mundon and Mr. Elihu Durham and my grandson.

Q. How long was that after the shot was fired ? A. Just a few minutes ; I couldn't
tell exactly. They said they was about half way from our house and town where
Mundon kept store when they heard the shot.

Q. They came on up there? A. Yes, sir; but they said they never thought about
it.

Q. How did they come into your house ? A. They came in another way ; they came
in at the south end. They didn't go in the room where Mr. Clayton was.

Q. What become of these people after they had come in the house; where did (hey
go to? A. They went to town to report the news of what had occurred.

Q. You knew then that Clayton had been killed before anybody entered tlw
room ? A. Oh, yes ; them gentlemen said so, Mr. Wauiuck and Mr. Allnntt.

Q, Had either of them at that time been in there ? A. They left there aa quick as

H. Mis. 137 48

754 CLAYTON VS. BRECKINRIDGE.

they could, but if they went back afterwards before Mr. Mnndon and them gentle-
men come I don't know it ; I was so frightened myself.

Q. You recollect who came up there that night after that, after those people that
belonged to your family ? A. I don't think anybody else belonged to the family.

Q. I mean after those people that stayed in your family ? A. I don't know ; we
never left our room.

Q. So you don't really know who came there ? A. Oh, no, sir; there were a great
many people passing in and out.

Q Was you in and out of the room before that ? A. I had been in and out of the
room about 20 minutes before that.

Q. You had been talking in there? A. Yes; I went into the room to ask Mr. Clay-
ton if Mr. Allnut could sleep with him. Mr. Allnutt had never stayed there with us
until that night. Mr. Clayton said yes he could sleep with him, but Mr. Allnutt
made so much fuss in his sleep Mr. Clayton couldn't sleep, and then I fixed a bed off
in aside room for Mr. Allnntt, and then I went off around into the gallery and told
my daughter we had to fix a bed up for Mr. Allnutt and I went back to tell Mr. All-
nutt he could have the door open from Mr. Mundon's room to go into the room ; I
stayed there a little bit and talked and I had been out of there perhaps 20 minutes
when I heard the gun.

Q. You speak about going into the gallery. A. I went out into the gallery to her
room.

Q. Did you see or hear anybody around there that night ? A. No, sir ; not at all.

Q. Where was the gallery ?

Mr. LACEY. The gallery is the same as the porch.

A. Yes, sir ; it is a porch, and there was a side room on the north end of it.

Q. The gallery is on the south side of the hous< j ? A. No; it is on the west.

Q. While you had been out in the gallery could you have seen through the window
into the room where Mr. Clayton was shot ? A. No, sir.

Q. It there had been anybody out there they could not have seen in ? A. No, sir.

Q. Had you any occasion to go to the door or to pass where yon could have seen
any person if they had been at that window that night? A. No, sir.

Q. Did you see anybody going away or running away from there ? A. No, sir.

Q. Did you hear anybody running away from there that night? A. No, sir.

Q. Something has been said of some palings being broken off the garden fence.
A. Yes, sir ; there were a couple of places.

Q. Were those places broken in the fence that night, or were they old openings in
the fence that existed there before? A. No, sir; it it had been done before it was
by some person unbeknowns to us.

Q. It- hadn't been done in the day time the day before he was killed? A. No; Inever
noticed the side of the house, for our cooking room and dining-room are around on
the west side of the house, and we never went around; sometimes it would be 3 or 4
days we wouldn't go around there.

Q. In tending to the ordinary cares of the house would you be apt to be around
there to see them, or in that direction ? A. No, sir ; we hadn't been for a great while.

Q. You don't know when those palings were taken off? A. No, sir ; I never knew
they was off until the next morning after he was killed.

Q. What time in the morning did you discover them ? A. The gentleman who was
there found them before I did.

Q. Did you go out there ? A. No, I didn't go out.

Q. Do you know whether the palings were lying there or had been broken off that
gat*- way ? A. I couldn't say ; I don't know.

Q. What condition was that ground oat there as to decayed vegetation ? A. There
wasn't any thing there.

Q. Was there no weeds standing ? A. Not to amount to anything.

Q. What had been kept in that garden any cattle of any sort? A. No, sir.

Q. How came it to be eaten off? A. The calves had been in there; they got in at
night; and we had it plowed up, and that killed the vegetation off ; and we sowed
mustard and turnips in there. There was no weeds

Q. Had they come up? A. Yes, sir; it came up the mustard; the weeds and every
thing was killed out nearly ; there was no weeds in there.

Q. Did you ever have any occasion to examine tracks that have been spoken of
here to look at them ? A. I looked at the tracks under the window.

Q. Something has been said about the tracks in the vicinity of the tree? A. That
is right at the window.

Q. How far? A. As far as from here to this gentleman.

Q. 4 or 5 or 6 ftet? A. Yes, sir; but it wasn't the window he was shot at; it was
the north window, right at the chimney.

Q. You know whether those are the same tracks that had been there at the win-
dow, were afterwards discovered at that one ? A. I don't know whether it was the
same tracks or not; people had been around the house so much before I went ont
doors.

CLAYTON VS. BRECK1NK1DGE. 755

Q. This tree or rose bush was at what window ? A. The north window.

Q. There was tracks whore the chimney was ? A. Yes, sir.

Q. You don't know whether they was the same tracks on the other side or not T A.
No, sir ; for I never went to look.

Q. Well, I don't know as I have anything else to ask. A. Well, I don't know, but
I want to tell everything as correct as I can.

Mr. McCAiN. There was no occasion or any hostility on your part or in your
family ?

A. What's that?

Q. You were all friendly to Mr. Clayton ? A. Why, now

Q. You had nothing against him ? A. There was nobody with me but my daugh-
ter there of the family ; we had nothing against him.

Q. Your family were Union people during the war ? A. My husband was a Demo-
crat.

Q. Some of your folks were in the Union Army ? A. Yes, sir ; my brother. We all
lived in the North. I havn't got no relations in this country to amount to anything.

Mrs. ELIZABETH HALL, called, sworn, examined, and testified.

Direct ex. :

Q. Where do you reside ? A. At Plninmerville.

Q. Where did you reside on the 5i9th day of January, 1889 ? A. At Plummerville.

Q. How long did you reside there before that ? A. Nearly 10 years.

Q. In what business were you engaged there in January, 1889 ? A. Keeping
boarders ; a boardiug-house.

Q. State whether or not John M. Clayton was a boarder in your family in the
month of January, 1889? A. Yes, sir; he was.

Q. Do you recollect what time in the month he came there ? A. No, sir ; I don't.

Q. Do you recollect the day of the week? A. As well as I recollect it was on
Thursday.

Q. State who came first, himself or who else to see about it ? A. A gentleman
came with him, McCord, I think was his name.

Q. Well, what length of time did he engage board for ? A. I don't recollect, ex-
actly.

Q. In which room of the house did Mr. Clayton sleep? A. He slept in the middle
room.

Q. In the middle one ? A. Yes, sir.

Q. Was there anybody else in the room ? A. No, sir.

Q. Was there a fire-place in it? A. No, sir.

Q. What opening, if any, was there out of that room into what we call the north
room ? A. A door.

Q. How many pieces of furniture were on that north room where the fire-place is T
A. At that time?

Q. Yes, ma'am. A. There was two bedsteads, a bureau, and a stand table.

Q. Was there a wash-stand iu the room, or did they go outdoors? A. They went
out on the porch to wash.

Q. Who made the beds in that house, principally ? A. My daughter.

Q. Did you ever assist in that ? A. No, sir.

Q. Were yon familiar with the condition of the furniture in these rooms? A. Yes,
sir.

Q. How frequently did you visit them ; once a day ? A. Yes, sir.

Q. You must have been in the room as much as once a day ? A. Yes, sir.

Q. From the time Mr. Clayton came there until he was killed, had there been any
change iu the position of furniture in that room ? A. No, sir.

Q. It was precisely the same th > day he came there as it was the day he was
killed ? A. Yes, sir.

Q. You heard the shot fired ? A. Yes, sir.

Q. Where were yon then ? A. I was in my room.

Q. What did you do then? A. What did I do ; I didn't do anything; I just sat in
my chair.

Q. Where did you think it was ? A. Well, I didn t know where it was.

Q. When did you learn first where it was? A. From the gentleman who came in.

Q. How long after the firing of the shot before they came in or before they come
to you ? A. It wasn't but a few minutes.

Q. What did they say ? A. Mr. Wamuck said he thought the lamp had exploded,
and Mr. Allnutt said some one had killed Mr. Clayton.

Q. Did any of you go into the room to ascertain how that was ? A. No, sir ; we
were afraid to go into the room for a short time.

Q. How long afterwards was it before you went in there? A. I didu't go in at all.
I went to the door after

Q. Was there a light in the room ? A. No, sir; the explosion put the lamp out.

Q. Could you see T A. Yes, sir ; I could see from the fire.

756 CLAYTON VS. BRECKINRIDGE.

Q. There was a fire-light ? A. Yes. sir.

Q. lu what position was Mr. Clayton ? A. I couldn't see his body ; I could see his
feet lying ou the chair.

Q. His feet were lying upon a chair ? A. Yes, sir.

Q. Was the chair sitting up or lying down? A. Lying down.

Q. And his feet were on top of it ? A. Yes, sir.

Q. How long was it before that or after that your son came np? A. Well, it wasn't
but a short time ; I couldn't tell.

Q. Had you gone to the door at the time your son came up ? A. No, sir ; they
come up on the porch ; I didn't know who was there, or whether it was some of the
same ones, and I wanted to know who it was ; Mr. Mundon called me and asked me
what I wanted, and I knew his voice.

Q. Who is Mr. Mundon? A. He is a gentleman from Alabama.

Q. What kind of a man is he ; what nationality ? A. He had the appearance of
being

Q. Is he American born ? A. I think he is.

Q. Who suggested the propriety of your son and young Durham going down into
the village to inform the neighbors ? A. I don't know who.

Q. Did they go? A. Yes, sir; I think my son, Mr. Durham, and Mr. Mundon all
went down, as near as I remember.

Q. Did you have any curiosity at anytime to examine the tracks said to have been
about the window ? A. No, sir ; I did not.

Q. How long was.it from the time your son and Durham went away until they re-
turned to the house ? A. I wouldn't know; but a short time. Just as soon as they
could go down and back.

Q. How long do you think that was? A. I couldn't tell you.

Q. Did the people of the town begin to come there before they returned from the
village ? A. I couldn't tell you, for I never left my room.

Q. You didn't go out ? A. No, sir ; I didn't.

Q. Had you been out around the house that evening at all? A. No, sir.

Q. Was there a fire-place in the room in which yourself and your mother occu-
pied ? A. Yes, sir.

Q. You stayed there most of the time ? A. Yes, sir.

Q. Had you been in the room in which Mr. Clayton was killed at any time during
the evening of the 29th of January ? A. No, sir; I was in there about noon.

Q. You have no recollection of being in there after dinner? A. No, sir.

Q. What kind of a curtain was over that window through which the shot was
fired? A. A dark calico curtain.

Q. Of what thickness was it? A. It was of thin, common calico ; it wasn't very
thick.

Q. Was it a perfect curtain? A. No, sir; it wasn't a regular window curtain.

Q. Had it been torn ? A. No, sir.

Q. Was it wide enough to cover the entire width of the window ? A. Yes, sir.

Q. Did yon look to see whether that window curtain was down or not that night ? -
A. The way it looked next morning it was down; it was down that evening when
she went in there to fix the room, and it looked next rnornng as if it was down.

Q. What was over the window the next morning ? A. That curtain was over it,
and a blanket.

Q. When was the blanket put up? A. It was pufc up during the night.

Q. Who put it up f A. I can't tell you ; I was up in my room.

Q. Why was it put up ? A. I don't know.

Q. Do you know anything about that? A. No, sir.

Q. Did you know it before morning, that it was put up? A. Somebody called for
a blanket to be put over the window.

Q. After Mr. Clayton was killed the blanket was put over the window in addition
to the curtain ? A. Yes, sir.

Q. Did you see the curtain next morning ? A. Yes.

Q. Was the curtain in perfect condition or was it torn? A. It was torn where the
shot went through it.

Q. Was that the only place ? A. Yes, sir.

Q. Where did the lamp sit in the room at the time Mr. Clayton was shot ? A. It
stood by that window.

Q. Was Mr. Clayton sitting at the time or going to sit at the writing table so that
lamp would reflect bis position on that curtain ? A. Well, I don't know.

Q. Is it not true that the table was so close to the wall that it would have been
possible for any person standing out there north of the table to have seen Mr. Clay-
ton's form reflected on the curtain"? A. Well, I couldn't tell you ; I never noticed.

Q. How close was that table to the wall ? A. It was sitting by the wall.

Q. Then Mr. Clayton couldn't have been between the table and the wall? A. No,
sir.

Q. How close was the table to the window ?~A. Wei], the table was right at th

CLAYTON VS. BRECKINRIDGE. 757

fire-place, as close ag it could be put in, and right iu the corner of the room. Jt had
been sitting there all winter.

Q. Now, to get that fixed in your mind, could that lamp have been so placed on that
stand as to reflect the shadow of any person on the curtain of that window f A. I
don't know.

Q. Think it over in your mind. A. I couldn't tell you that.

Q. I understand you to say this table here was up iu the corner of the room? A.
Yes, sir.

Q. Right in the corner of the room ? A. Yes, sir.

Q. In which corner ? A. The north corner.

Q. The north corner of the room ? A. Yes, sir.

Q. How wide is that table and how long ? A. It is about square.

Q. A couple of feet across ? A. As wide as 2 feet or two and a half it is about 2
feet, I think.

Q. That occupied the north and east corner of the room ? A. Yes, sir.

Q. The table, theu, was up in the corner? A. Yes, sir.

(The witness here illustrated by a square piece of paper the location of the furni-
ture in the room. )

Q. How wide is that window ? A. It is just a small window.

Q. Did you ever observe that the curtain was torn before or until after Mr. Clay-
ton was killed ? A. No, sir.

Q. Do you think it had been torn before that time ? A. No, sir.

Q. Do you think if it had been torn yon would have seen it or noticed it? A. I
think I would.

Q. How long had the furniture in that room occupied the position it did when he
was killed ? A. We took the carpet up immediately after it.

Q. Theu the position of t he furniture had been changed ? A. Yes, sir, we changed it.

Q. After the shooting? A. Yes, sir.

Q. Now, do you recollect what day that was? A. It was the next day after he
was taken home.

Q. Where was the bureau ? A. We stood the bureau over then by the window.

Q. Where was the table placed ? A. As well as I remember we stood the table
there where the bureau was.

Q. The bureau was placed where the table was ? A. Yes, sir.

Q. And the table was placed where the bureau was ? A. Yes, sir.

Q. The bed remained without change ? A. Yes, sir.

Q. No change was made in the position of the bed ? A. No, air.

Q. I am not certain, but think you told me you had been out during the evening ?
A. No, sir ; I hadn't been out.

Q. To look out around the house ? A. No, sir.

Q. Where did you get the wood you had been burning in this fire-place ? A. Out
on the south side of the house.

Q. I thought perhaps in the course of the evening you had been out around that
place where you could have seen the window through which Mr. Clayton was shot?
A. No, sir.

Q. You are usually in the opposite side of the house? A. Yes, sir.

Q. In the performance of household duties did you see the north side of the house ?
A. No, sir; not a great deal.

Q. The wood-pile is on the other side of the house ? A. Yes, sir.

Q. In entering the house did you enter on the south or north ? A. The south side.

Q. So that the young men from town came in from the south side ? A. Most always.

Q. Did the neighbors coming from beyond you; did they come by that window or
pass by it ? A. No, sir.

Q. They passed by the south side too ? A. Some come from the front or east side
of the house.

Q. I understood you to say the next morning you saw a hole in the curtain the
curtain was torn? A. Yes, sir; where the shot went through.

Q. What kind of a hole did it make, if you remember? A. I don't remember.

Q. Did it frizzle it out and make a hole through it? A. It frizzled it out, as well
as I remember.

Q. What was the,size of the hole, as near as you remember ? A. I couldn't tell you.
It was u great size of a place.

Q. As big around as your hand ? A. No, sir.

Q. It cut out to the lower part of the curtain ? A. It jutted through over the lower
point of the crease.

(j. I mean did the hole cut out through the lower part of the curtain ? A. No, sir.

Q. It just made a hole, but didn't tear it out all the way down ? A. No, sir.

Q Was that curtain powder-burnt auy ? A. Not as I ever seen.

Q. I understood you to say the furniture hadn't beep changed in the room until
what time ? Until the time after he was s ot ? A. No, sir ; it was not.

Q. It remained in the same precise place ? A. Yes, sir.

758 CLAYTON VS. BRECKINRIDGE.

Q. What number of persons have boarded in the house daring that time that Mr.
Clayton had ben there, McCord, Mundon, Durham, Warnuck, Allnutt ? A. I couldn't
tell you.

Q. Auy strangers? A. No, sir ; only some Mr. Clayton brought there.

Q. Where did you reside before you couie to Plummet? A. I resided in Portland.

Q. In what county and State is that ? A. Conway Co.

Q. What direction ? A. South.

Q. Were you acquainted with Thomas Hooper in his life-time t A. No, sir.

Q. The one who went to Cal. ? A. No, sir.

Q. You never seen him? A. No, sir.
Cross-ex. :

Q. How many people were in the room at the time this occurred T You say there
were three ? A. Boarding there ?

Q. Well, no. How many were in the house when the shot was fired ; how many of
the family ? A. There was Mr. Allnutt, and Mr. Wamuck was there in the room, and
they came into our room after the assassination.

Q. Did anybody give any attention of any kind to the body of Mr. Clayton ? A. I
couldn't tell you ; I never left my room.

Q. You didn't ? A. No, sir.

Q. Why did you not give him some attention ? A. I was so frightened that I
didn't know what to do, and I thought the gentlemen would attend to that.

Q. Well, how much did you charge Judge Clayton for the damage done there ?
A. For the damage done there?

Q. Yes. A. $15.

Q. You wanted him to pay some more than that ? A. Yes, sir.

Q. How much did you want him to pay ? A. As well as I remember, it was $30.

Q. Don't you think it was a little steep ? A. No, sir, I don't ; of course we wasn't
the cause of it, and our house was awfully torn up.

Q. You finally had him pay you $15? A. Yes, sir.

Mr. COOPER. Did you advise with anybody as to how much you should oharge ?
A. No, sir.

Q. Did your mother advise with any body down town as to how much you should
charge ? A. Not that I know of.

Mr. McCAiN. Do you think $15 didn't overpay you a little.

A. No, sir ; I don't.

Mr. McCLKRE. Do you recollect when Gov. Clayton came down there T A. To our
house ?

Q. Yes. A. No, sir.

Q. Dp you recollect, perhaps the day after Clayton's body was taken away, that
the train came by and a gentleman came up ? A. Yes, sir.

Q. Was that curtain in the same condition then as it was the next morning after
the deed had been done ? A. Yes, sir.

Q. It was the same curtain that hung there then ? A. Yes, sir.

Q. Was it the same curtain that was there when the people came up after his body ;
the undertaker and Mr. Clayton's brother ? A. Yes, sir.

Q. It was in that condition that you speak of? A. Yes, sir.

Mr. McCAiN. How far was the shot from the edge of the window sash ?

Q. Well, it didn't seem to be

Q. Was it through the middle pane or one of the side panes ? A. There was but
two panes in the sash in the small window.

Q. What was the size of the pane the shot passed through ? A. I declare I couldn't
tell yon.

Q. Was it about 12 inches long ? A. Yes, sir ; I think it would measure that.

Q. About as wide as this pencil, say 6 inches wide or wider than that ? A. I think
they were wider than that.

Q. Did it go through the middle of one of those panes or through the edge of one
of those panes ? A. I couldn't tell you.

Q. Did it break the entire pane out ? A. Yes, sir ; it shattered it all to pieces.

Q. Did it spread the curtain or go through the edge of the curtain ; or did it go
through the middle of the curtain ? A. Well, there is two pieces of the curtain two
widths, and it went through one width of the curtain.

Q. It went through but one width of the curtain ? A. Yes, sir.

Mr. COOPER. Did it make a hole through the curtain, or just a niche in the
curtain T

A. It just cut a niche in the curtain.

Q. It didn't cut a hole ? A. There was some of both sides, as well as I remember.

Q. Both sides had a hole? A. Yes, sir.

Q. Where the shot went through ? A. Yes, sir.

Mr. McCAJN. You think it -went through the outer part of the curtain there and

st cut a notch ?

A. That curtain is two widths of calico, and it wasn't sewed up all the way.

CLAYTON VS. BRECKINRIDGE. 759

Q. It juat went through one of the widths? A. There was a piece taken out of
the other width, as well as I remember.

Q. Now, did it cut through the edge near the window, or through the edge near
the outside of the window, or the middle of the window ? It went through that
edge ? A. Yes, sir.

Q. Do you remember whether it took a part of that edge, or did it make a hole in
the middle of that curtain, or a piece of that part ? A. It was through the middle
of the curtain.

Q. Supposing you had two curtains, it hung this way, didn't it? [Illustrating.]
A. Yes, sir.

Q. Now it went through that part and not through this part ? A. Yes, sir.

Q. It went through this part in the middle ? A. Yes, sir.

Q. It struck both parts? A. Yes, sir. It took a little piece out of one side.

Q. And something more out of the other? A. Yes, sir.

Q. Just the one place it took out ; or did the shot go through a number of places?
A. It seemed to be all in one place.

Q. How big a place did it tear out, was it as much as 2 inches or 4 inches across
it ? A. It wasn't that.

Q. Was it more than 2 inches? A. I think it was.

Q. Was it as much as 3 inches? A. I think it was. It was quite a large place.

Mr. McCi-URE. I understand you to say, in the explanation you are now making,
that the curtain was not all in one piece?

A. No, sir; it was sewed up part way down.

Mr. COOPER. Was it sewed up part way from the bottom or the top ?

A From the top.

Mr. McCLURE. How near was it sewed up from the top to the hottom?

A. About midway from the top down.

Q. Was that the curtain you had at the time it was in that condition at that
time? A. Yes, sir.

Q. Now when it separated, state whether it was closed to prevent people from
seeing from the outside ? A. Yes, sir; whenever it was let down it was closed.

Q. How much did it pass below the window-sill ? A . When it was let down it
came most to thu floor.

Q. You don't know whether it made an opening there near the bottom ? A. No,
sir ; I don't think it did.

Q. I understand you then to say the curtain had not been sewed up all the way
down ? A. No, sir.

Q. It was in two pieces of cloth ? A. Yes, sir, and when it was let down it all
come together.

Q. How was it sewed together? A. On the machine.

Q- Down to that point ? A. Yes, sir.

Q. How much did that lap in ; you say it come together; how much did it lap, one
piece on the other ? A. We just put the two pieces together.

Q. How big a seam did you take about ? A. I couldn't tell yon ; a common size seam.

Q. Just an ordinary sized seam, perhaps that distance from the edge [illustrat-
ing] ? A. Yes, sir.

Q. One-third of an inch, perhaps? A. Yes, sir.

Q. Now, when that was put up there and hung down would that curtain come to-
gether and cover the edges? A. It always come together.

Q. It always went together when it was let down? A. Yes, sir.

Q. So that a person standing on the outside when the curtain was let down couldn't
see through the window at all ? A. I don't think he could.

Q. Had either one of those pieces been torn ? A. Before the shot went through ?

Q. Yes. A. No, sir.

Q. Did you have that window up at any time during the 29th of January ? A. No,
sir.

Q. Was that a window that could be raised ? A. Yes, sir.

Q. You could raise it to let in the air ? A. Yes, sir.

Q. Was it raised any on the 129th of January ? A. No, sir.

Q. Was it raised on tke '28th ? A. No, sir.

Q. Do you think that window had been up at all? A. No, sir.

Q. The window had a sash to it so you could raise it up and down that way ?
A. Yes, sir.

Q. How many panes of glass were there in the sash? A. There were two in the
sash four in the sash.

Q. So then there was 8 lights in that window ? A. Yes, sir.

Q. And you say neither one of those pieces of that curtain had been torn before
that? A. No, sir.

Q. If they had been you didn't notice it ? A. No, sir.

Q. Nobody had access to that window that day except Mr. Allnut, Mr. Womuck,
and Mr. Clayton ? A. All the boarders were in there.

760 CLAYTON VS. BRECKINRIDGE.

Q. That is a sort of sitting-room for the gentlemen ? A place they wentiu during
the day ? A. Yes, sir.

Q. While they were waiting for their meals ? A. Yes, sir.

Mr. BERGEN. How long had Mr. Clayton been at your house ?

A. Well, I couldn't tell you the day of the month he came there.

Q. He had been there some days? A. How many days ?

Q. Yes. sir. A. He had been several days.

Q. Who had been in your house that day ? A. Well, I couldn't tell you, there was
so many of them there.

Q. I wish you would name them. A. Well, all the boarders went there.

Q. Name them. A. Mr. Mundon, Durham, I suppose went in there, and J and

Mr. W. T. Hobbs, I suppose they had all been in there during the day.

Q. They were boarders ? A. They were at that time.

Q. Were those all the boarders you had at that time ? A. All the regular boarders
we had.

Q. In addition to that yon had Mr. McCord there, Mr. Clayton, and Mr. Allnutt.
Did you have anybody else boarding there at that time ? A. Mr. Wamnck came
there and stayed all night.

Q. When did he come there ? A. He came there for supper.

Q. Is that the first night he came there ? A. Yes, sir.

Q. He hadn't been there the night before ? A. No, sir.

Q. He took supper there on the night of the 29th of January ? A. Yes, sir.

Q. Who else called on you during the day ? A. No one that I remember of.

Q. Nobody else had been there during the whole day ? A. No, sir.

Q. I thought you stated a few minutes ago there had been so many there you
couldn't remember who ? A. Well during the day I

Q. Yes. A. I think Mr. Clayton, as well as I remember, brought two gentlemen
up there for diuner.

Q. Two came with him ? A. Yes, sir.

Q. Who were they ? A. I don't know.

Q. Now, who else ? A. That's all I remember of.

Q. Is that all you can remember, the two ? A. Yes, sir.

Q. Now, you have mentioned all the persons that came to your house during the
29th of January, have you? A. All that 1 remember of.

Q. Was this house a one-story house ? A. One story.

Q. Which way does it face, north, south, east, or west? A. East.

Q. It faces east? A. Yes, sir.

Q. Has it a double front ? A. No, sir; it has a porch in front and a portico.

Q. Has it two rooms ? A. Yes, sir.

Q. And a hall between them ? A. Yes.

Q. And the parlor is on one side of the hall ? A. We don't have no parlor.

Q. Did Mr. Clayton occupy a room on one side of the hall ? A. He occupied the
little hall to sleep in, he occupied the sitting-room during the day.

Q. You had no intercourse with anybody while Mr. Clayton was there at your
house! A. No, sir.

Q. How long had this curtain been up at this window ? A. It had been up a good
while.

Q. How long had it been there at the time Mr. Clayton was killed ? A. 4 or 5
months.

Q. Had you been expecting Mr. Clayton to come to your house for a long time ? A.
No, sir.

Q. When were the rooms engaged for Mr. Clayton ? A. Mr. McCord engaged the
rooms for himself and a partner ; he didn't call Mr. Clayton's name.

Q. With whom did you talk about the bills presented to Judge Clayton after the
death with whom did you talk about that bill you made out of $30 you said, who
told you how much to make it out for? A. Ma said she thought it would be little
enough.

Q. You consulted with your mother? A. Yes, sir.

Q. Who else did you consult, or any one else ? A. No, sir.

Mr. McCxiN. You say you hadn't seen anybody there that evening ?

A. Any stranger ?

Q. Yes. A. Nor neighbors

Q. There was no one you wasn't accustomed to about the house ? A. No, sir.

Q. No unusual visitor had been there during the day ? A. No, sir.

Mr. LACEY. Did you know of a barber stopping at your mother's a short time after
the murder a stranger ?

A. Yes, sir.

Q. How long did he board there ? A. I couldn't tell you ; just a few days.

Q. What was his name ? A. I couldn't tell you that.

Q. How old a man was he ? A. He didn't not look to be very old.

Q. Was he a young man 20 or 25 years or younger ? A. He looked to be of that age.

CLAYTON VS. BRECKINRIDGE. 761

Q. Do you know why lie left? A. No, sir.
Q. Did anybody talk to your mother about him? A. No, sir.
Q. And advise you not to keep Lim ? A. How is that?

Q. Did anybody come to the house and advise you not to keep him? A. No, sir.
Q. You didn't hear anything of the kind ? A. No, sir.
Q. Did you learn afterwards he was a detective ? A. No, sir.
Q. Did you learn that while he was there or did you hear it at auy time? A. No,
sir.

Mrs. MARY ANN McCRAVEN, recalled.

Mr. BERGEN. With whom did you consult about making out your bill? A. With
no person at all.

Q. It has been stated here that you consulted with some person out in town about
making out your bill ? A. No, sir.

Q. Who did you say you consulted with ? A. Nobody.

Q. You didn't ? A. No, sir; I will tell you just what I thought ; I just thought
we was damaged that much. I had all new carpets and paid $31 for them, and it
never looked like they could be cleaned up, and they were spoiled. I didn't go to
see people to consult; I have just got a mind of my own. That's the way. I just
thought I was injured that much.

Q. What did you give for your carpet? A. I gave $31 for that carpet and the one
that was on the hall, and the other was on the room, and they were just as muddy ; I
never did see such a looking house in my life.

Q. How much was your carpet destroyed ? A. It was destroyed and it spoiled the
looks of it.

Q. The blood didn't cover the whole of it? A. No, sir.

Q. Only a few feet of it, I suppose ? A. 1 seen there wasn't.

Q. Who came to your house during that day ? A. Nobody specially at all, but the
boarders.

Q. Nobody came around there to inquire about Clayton ? A. No, sir; I never heard
a person speak about him.

Q. Who stayed there the night before ? A. No person but the boarders, I don't
think.

Q. Are you sure of that ? A. I tell you I couldn't state positively, but I am going
to toll everything just as straight as I can. If any person stayed there but the
boarders I don't know it. Alter Mr. Clayton was killed Mr. Wamuck stayed there
and Mr. Allnutt ; that was the first night Mr. Allnutt came there to stay.* He was
working for Mr. Clayton, so he said.

Q. How long had you had t ose curtains ? A. We had them a year or two.

Q. How long bad you had that curtain put up to that window in that room as it
was put up ? A. 3 or 4 or 5 months ; I couldn't tell you the time exactly, because it
was a dark window curtain and it didn't require much washing, and it had just been
hanging there ever since away along in the summer.

Mr. LACEY. Now, when that barber boarded at your house how long did he stay
there ?

A. Why, he stayed two nights and a day and then eat his dinner and had to leave
there in the evening, and he left.

Q. Did you learn that he was a detective or hear that he was? A. I heard it said,
but didn't know it.

Q. Did you know of his having any trouble there? A. I heard he had.

Q. What was the trouble? A. Well, now, I will tell you, you will have to get
other folks ; I wasn't there.

Q. You only know from hearsay? A. It is all hearsay.

Q. Did auy body make complaint to you about him ? A. No, sir.

Q. Did you have any talk with Mr. Pate about him? A. I heard that, but it ise't
so. I have heard a great many stories ain't so, too.'

Q. You only know how he came to leave there from what somebody else told you ?
A. Well, be came to the house and told me that somebody had disturbed him ; and I
told him I would rather he would leave there ; that I didn't want him to stay there; I
didn't want anything that would cause any hardness ; and he eat his dinner and never
came back any more until they arrested him and brought him back

Q. Who was it first said anything about causing auy hardness? A I just stated
that. You know we was insomuch trouble and I wanted everything quiet at our house.

Q. Wasn't you afraid the person who committed the crime would mnke some
trouble? A. I have been in so much trouble about that He went off withotu pay-
ing bis board bill, but he paid it after he came back. He didn't pay the money, but
he just gave me a pair of pitchers and towel and a razor and I sold them and got the
money.

Mr. McCAiN. Who was that man ?

A. He called himself Wilson, but I don't know his name.

762

CLAYTON VS. BRECKINRIDGE.

Q. What was his occupation ? A. He said he was a barber. I don't know what
he followed, but be didn't stay there at the house only about meal time.

Q. Who was it complained of him? A. Nobody complained of him to me. He only
come and told me and I didn't know ; I can't tell nothing only what I know. If I
hear what ain't so, but what I know I tell, and that's all.

Q. Was that a man somebody had arrested for stealing a razor ? Was there any
such thing as that ? What did he say his trouble was ? What was that about ? A.
I didn't ask him.

Q. You don't know anything about that? A. No, sir ; I didn't ask him.

Q. You don't know anything about any complaint being made? A. No, sir; they
didn't make no complaint to me.

Q. You suggested to him to go away ; why was that? A. Because he aaid he had
got into trouble and I didn't want him to stay.

Q. Was that about selling a razor ? A. No, sir; it was something about a letter ;
I think he said something about his mail ; but now I don't kno w nothiug about that,
only just what he said, and I told him I wonld rather he would leave and that I didn't
want him any

Q. What did he sayT A. He just said he had got into trouble, and I said if that
was the case I wanted him to go soinewheres else.

Q. Tie didn't tell yon what the trouble was about ? A. No, sir.

Q. Well, did he tell you it was about a letter, or did you hear that from some other
source ? -A. He said it was about his mail ; that's what he said ; but I never asked
him in what way, or in any way.

Q. He didn't explain the details to you ? A. No, sir ; I never asked him, only when
he said that, I said I would rather he would go somewhere else.

Q. Who was it that the trouble with the razor was about, if you remember? A. A
colored man, I think.

Q A colored barber ? A. Yes, sir ; I think so. Well, I am satisfied that is what
they arrested him and brought him back for, but I don't recollect the darkey's name.

We herewith give the diagram of Mrs. McCraven's house as published
on page 610 of the testimony.

NORTH,

HOUSE WHERE:
CLAYTON WAS KILLED.

\ and 2 Where men were standing.

3. Spot from which shot was flreU.

4 \Vmdow luou^h which shot was fired.

XX Gar'len jjHt<- wheie the.v entered.

O. H.le in the garden lent-.- where they entered ; they returned the same way.

5. Where the p:stol was found

A. Clayton's position whon hot. 6 feet from window.

B. Where Allnut was standing, about 3 feet in front and to Clayton's left

C. Where D. H. Womack was sitting.

D. Bed.

E. Bed.

CLAYTON VS. BRECKINRIDGE. 763

We have given, then, the full testimony, as printed, of the four persons
in the house at the time Colonel Clayton was killed, as indispensable to a
beginning of any reasonable speculations upon the subject of his death.

So far as we know all the theories of the killing of Colonel Clayton
are as follows :

First. That he was killed by the men who stole the ballot-box.

Second. That he was killed by the men who were under indictment.

Third. That he was killed by men who wanted to stop inquiry into
the right of Mr. Breckinridge to hold his seat.

Fourth. That he was killed out of some grudge arising out of the
murders committed before and during the period of martial law under
his brother Powell Clayton's administration as governor.

Fifth. That he was killed out of rivalries and factional hatreds
existing in the Republican party.

Sixth. That he was killed in an attempt to manufacture a mock out-
rage, and hence not intentionally.

None of these theories have been intelligently, systematically, or ex-
haustively inquired into by the committee, and some of them have not
been inquired into at all. At a glance one can see from the status of
the question as left by the testimony of the four witnesses who were in
the house at the time of the killing that the most careful, intricate, and
extensive inquiry would, in all probability, be necessary. The diffi-
culties the case had presented to the State authorities, to individual
efforts, notably to those of the brothers of Colonel Clayton, and to the
intelligent inquiries of special agents of great metropolitan newspapers,
all pointed to the necessity of great thoroughness if any reliable
conclusions were to be reached. It was known that all these efforts
had been baffled; and now a special committee, backed by all the
power and resources of the Federal Government, was to give the mat-
ter an exhaustive and supreme overhauling.

They seem to have been dominated by the unfortunate sentiment and
policy of General Powell Clayton, who, when governor of the State
and engaged in torturing a previously quiet and peaceful people into
outbreaks, wrote A. M. Merrick, as shown by the official letter-copy
book;

Report to me every violation of law and every outrage, giving all the facts, as we
intend using them as political capital to influence Northern elections.

When men once engage in the "outrage" business as a species of
political merchandise, they seldom take much interest in any discov-
eries which will stop the source or use of the supply.

In this way there appears to be a settled purpose to " work " John
Clayton's death "for all it is worth;" and the State, the people, and
parties whom it is of interest to accuse are assailed without testi-
mony.

The best refutation possible, however, to the allegations of the ma-
jority is a plain statement of the facts as shown by the record. The
first features to note are the expressions of public sentiment and the
forms of public and popular action in the premises. Page 562 of the
record discloses the following information, which the majority had to
guide them :

Iii the first place, immediately upon hearing the report, Governor Eagle wired
Sheriff -Shelby to this effect : " luform me at once as to the truthfulness of the report
of murder of Clayton last night, giving particulars."

To this Jeff Wright, clerk of Con way County, in the absence of Sheriff Shelby, wired:
" Clayton was shot through a window in the early part last night and killed; per-
petrators of crime not known."

764 CLAYTON VS. BRECKINRIDGE.

Governor Eagle tben issued the following proclamation :

PROCLAMATION BY THE GOVERNOR.

Whereas it has been made known to me that on or about the 29th day ot January
1890, in the county of Conway, State of Arkansas, John M. Clayton was foully slain
by an assassin at the village of Pluminerville, in this State, and that the perpetrator
of this fearful crime has not as yet been discovered, but is now at large :

Now, therefore, be it known that I, James P. Eagle, governor of Arkansas, by
virtue of authority vested in me by the constitution and laws of said State, do offer
a reward of $1,000 for the arrest and conviction of the perpetrator, or perpetrators,
of said crime.

In witness whereof I have hereunto set my hand and caused the great seal of the
State to be affixed, at Little Rock, this 30th day of January, A. D. 1890.

JAMES P. EAGLE, Governor.

By the GOVERNOR :
BEN B. CHISM,
Secretary of State.

The governor then wrote Sheriff Shelby as follows, indorsing a copy of the proc-
lamation, viz :

STATE OP ARKANSAS, EXECUTIVE OFFICE,

Little Rock, Jan. 31, 1889.

Mr. M. D. SHELBY,

Sheriff Conway County, Morrillton, Ark. :

DEAR SIR : Inclosed I hand you proclamation for reward for the apprehension and
conviction of the assassin or assassins of Hon. John M. Clayton, and hope it will serve
to cause the utmost effort to be made to ferret out the perpetrator of this crime.

Arkansas can not afford to rest quietly under this fonl stain, and it is not right that
the officers should do so, nor do I believe you will in this case, but I trust you will
spare no effort to ascertain some clew that will enable you to locate the man who has
committed this greatest of crimes.

Report to me from time to time any news you may obtain concerning this matter.
Very truly,

JAMES P. EAGLE, Governor.

MESSAGE TO THE LEGISLATURE.

The governor sent this message to the legislature :

EXECUTIVE OFFICE,
Little Bock, January 31, 1889.
To the General Assembly of the State of Arkansas :

I am officially informed that on the night of the 29th inst. John M. Clayton was
foully slain by an assassin at the village of Plummerville, in this State, and that the
perpetrator of this fearful crime, which has shocked the whole community, has not
as yet been discovered. At the time the deceased was thus murdered in cold blood,
he was engaged in taking testimony in reference to a contest for a seat in Congress,
in which he was the moving party. He was, therefore, in the exercise of an inalien-
able right of citizenship, wnich none could have any disposition to thwart, except
the most abandoned of men. He was a man of most unquestioned integrity and
honor, standing high in the esteem of all classes of men ; a man whose personal con-
duct could not have given well-grounded offense to any one.

Under these circumstances, this revolting crime, if suffered to go unpunished, is of
a kind to bring the administration of justice into disgrace and to stain the good name
of the State.

Going so far as the law would allow me, I have issued a proclamation offering
$1,000 for the arrest and conviction of the perpetrator of this lawless deed ; but I
have felt that the unprovoked and flagrant atrocity of the act calls for unusual
efforts for this conviction, and the enforcement of the utmost penalty of the law.

I therefore recommend that I, as governor of the State of Arkansas, and in her
name, be authorized to offer a reward sufficient to induce the making of every possi-
ble effort to bring said offender to speedy justice.

JAMES P. EAGLE, Governor.

CLAYTON VS. BRECKINRIDGE. 765

The legislature took up the matter immediately and the following bill was passed

THE BILL PASSED. Act X.
AN ACT to increase the governor's contingent fond

Be it enacted by the General Assembly of the State of Arkansas :

SECTION 1. That the sum of $5,000 be, and the same is her*eby, appropriated as a
part of the governor's contingent fund, to be used in his discretion in the procuring
the apprehension of any notorious criminal who has been guilty of recent brutal mur-
der or assassination in the State of Arkansas.

Approved, February 13th, 1889.

When the bill was passed the following was issued :

PROCLAMATION BY THE GOVERNOR.

Whereas it has been made known to me that on or about the 29th day of June, 1889,
in the county of Conway, State of Arkansas, John M. Clayton was foully slain by
an assassin, at the village of Plummerville, in said county and State and that the
perpetr; tor of this fearful crime has, as yet, not been arrested but is now at large ;
and, whereas, on the 30th day of June, ulfr., a proclamation was made by the under-
signed offering a reward of $1,000 for the arrest and conviction of the perpetrator or
perpetrators of said crime: and, whereas, since said proclamation was issued a bill
has ben passed by the general assembly, now in session, authorizing the governor
to offer a reward of $5,000 :

Xow, therefore, be it known that I, James P. Eagle, governor of Arkansas, by vir-
tue of authority vested in me by the constitution and laws of said State, in addition
to the $l.OOC heretofore offered, do hereby offer an additional reward of $4,000, mak-
ing in all f5,000 offered for the arrest and conviction of the perpetrator or perpetra-
tors of said crime.

In witness whereof I have hereunto set my hand, and caused the great seal of the
State to be affixed *t Little Rock, the 14th day of February, A. D. 1889.

JAMES P. EAGLE, Governor.

By the Governor :
BEN B. CHISM,
Secretary of State.

This proclamation was forwarded immediately to Sheriff Shelby, accompanied by
the following letter :

STATE OP ARKANSAS, EXECUTIVE OFFICE,

Little Sock, Feb. 15, 1889.
M. D. SHELBY,

Sheriff Conway County :

SIR: I herewith inclose proclamation of reward of $4,000 for the assassin of John
M. Clayton, which, together with the reward of $1,000 heretofore offered, makes
15,000.

Yours, truly,

JAMES P. EAGLE, Governor.

To this letter Sheriff Shelby replied, assuring the governor that he was doing
everything he could in the matter. A few days later he came to Little Rock, and
had an interview with the governor in which he again assured the executive that
everything would be done that was possible.

The governor urged upon the sheriff the importance of having the grand jury
make a thorough investigation of the matter, to try to arrest the evil-doers, not only
the murderer, but the men who stole the ballot-box. The sheriff said he would leave
nothing uudone in his efforts to ferret out the criminals. A meeting of the governor,
judge, and prosecuting attorney of the district was arranged, and took place at the
governor's office where the whole matter was talked over, and fully and thoroughly
agreed among the three officers that they were to enter into the fullest investigation
possible.

In addition to this, public meetings were held at Morrilton, Plum-
merville, Fort Smith, Little Kock, Pine Bluff, and indeed all over the
State, denouncing the crime and demanding the detection and punish-
ment of the guilty parties. As to the press, Gen. Powell Clayton says :

All the Democratic journals of the State at the time were vigorously denouncing
this thing iu as strong language as I could possibly dictate, if I should dictate all of
it, and urging that the men should be brought to justice. (Testimony, p. 557.)

766 CLAYTON VS. BRECKINRIDGE.

But in addition to all this public sentiment otherwise manifested
itself in the most practical manner. Voluntary rewards were offered ;
$1,000 by the people at Fort Smith; about $2,000 at Little Rock; over
$2,000, all told nearly $2,500, at Pine Bluff; some hundreds in smaller
amounts from other places, aggregating nearly or quite $6,000 in addi-
tion to the official reward offered by the State. This makes a total
reward of say $11,000, $5,000 of which was by the State and $0,000 by
voluntary subscription. While this action was totally non-partisan, yet
it is known that the action of the State government was by a Demo-
cratic executive and a Democratic legislature, and the overwhelmingly
larger part of the voluntary subscriptions was by Democrats. This
should have tempered the subsequent partisan proceedings of Republi-
cans, but it has not had any appreciable effect that way. Never before
in the history of the State had exceeding $1,000 been offered for the
arrest and conviction of a murderer.

Any amount necessary in the opinion of the governor could have
been raised, but we have the evidence of General Clayton turning
back money he could not use, and of the Gazette, whose manage-
ment and policy at that time General Clayton speaks of so highly,
protesting that more money would be injurious rather than beneficial.
This stands out conspicuously then, as the one case in all our history
where, upon the testimony of all, the amount offered exceeded the
wants, with no sign of exhaustion in willingness to give, and in which
more than half of it was by popular subscription, the State exceeding
any former offer fivefold, the people exceeding t sixfold, the total
elevenfold, and as much more in reserve if the governor would only say
he needed it. This is the conduct of the governor, the legislature, and
the people of a State that the majority tells you needs to be bound by
new and coercive laws.

In the face of these proceedings there appeared a remarkable cam-
paign document, signed by General Powell Clayton and Mr. W. H. H.
Clayton. General Clayton says it was issued several days, " four or
five," after the funeral. It appeared simultaneously in the leading
newspapers of the country, evidently having been furnished to the
" Associated Press," and as it was in the Washington Post of Febru-
ary 4, the sixth day after Colonel Clayton's death, it was issued on
the 3rd, just three days after the funeral. The composition of it began,
and, indeed, it was issued, before the term for the court had begun ;
before very exhaustive investigations could have been made, and be-
fore the u vigorous denouncing" by " all the Democratic journals of the
State" and the ample rewards could have had a full opportunity for
their full and fair effect. As this is a comprehensive and initial outline
of a policy, we insert it in full :

Powell and W. H. Clayton tell the tale of John Clayton's murder they stamp it a

political crime, and recount the preceding incidents indirectly connected with it.

Gen. Powell Clayton and Judge W. H. H. Clayton, brothers of the Hon. John M.
Clayton, who was assassinated on the night of January 29th, have furnished the
following statement to the Gazette for the benefit of the public :

That the public may understand the circumstances leading up to and culminating
in the assassination of our brother, John M. Clayton, we desire, over our own signa-
tures, to make the following statement of facts:

All agree that this was a political assassination. It will be therefore necessary for
us to refer to the political condition and circumstances surrounding it. We do this
ill no partisan spirit, but only that justice maybe done to the memory of our brother,
and that a knowledge of the facts which led to his assassination may induce the
people of this State to correct the evils from which this and other great crimes have
sprung, and that, however sad the circumstances may be to us, his martyrdom may
result in good to the people of this and other States. Although since the commence-
ment of the last political canvass for State officers in Arkansas many political crimes

CLAYTON VS. BRECKINEIDGE. 767

have been committed in different parts of the State, in this statement, however, we
will confine ourselves to the limits of Conway County, within which Plnmmerville P
th i scene of this murder, is situated, and only to those circumstances which in our
opinion led to the commission of the crime.

Prior to the September election and during the canvass a political club was organ-
ized at Morrillton, the county seat of Conway County,. with one Stowers, fresh from;
Mississippi, at its head. The club soon after resolved itself into a militia company,,
and about two week-- before the election, at a time of profound peace in the county,,
the Hon. Simon P. Hughes, then governor, not only supplied it with State arms, but
furnished it with a full supply of ammunition. This was the beginning of the trouble
in Conway County.

From this time until the day of election Stowers, with his armed partisans, almost
daily paraded the streets of Morrillton. On election day their guns were deposited,,
loaded and ready for action, in a convenient place in the building in which the elec-
tion was held. On the inoruing of that day the Republican judge of election, on his.
way to assume the duties of his office, on a frivolous and preconcerted pretext, wa
arrested, whereupon Stowers with his men marched to the polls, and upon his nomi-
nation and their votes another person was declared elected to fill the vacancy.

By these unlawful proceedings the election board, composed of citizens representing
both political parties, was made solidly Democratic.

Whether Stowers and his men at this time were acting as a political club or as *
company of State militia we are not advised, but certain it is their loaded guua were
near at hand.

While at Morrillton these things were being done the citizens of the town of Plum-
merville, who were nearly all politically opposed to our brother, while those of the
farmiug parts of the precinct were his political friends (the latter greatly outnumber-
ing the former), collected at the voting place long before the hour fixed by law for
the opening o f the polls, and organized a full set of election officers of their party.
When the two Republican judges returned they found their places usurped and the
election in full blast.

The result of the September election so conducted in Conway County was a com-
plete change of its political status so far as its officers were concerned, but not as to
the sentiments of its people under these changed conditions. About two mouths
thereafter the Congressional election occurred, John M. Clayton being the Repub-
lican candidate and C. R. Breckinridge the Democratic. The day betore this elec-
tion M. W. Benjamin, a 'prominent Republican lawyer of Little Rock, and one of
Arkansas's best citizens, was sent to Conway County by the Republican State central
committee, with instructions to use his beet endavrs to secure an honest election.
On his arrival at the depot at Morrillton he was confronted by an infuriated mob of
several hundred citizens, who threw him from the cars, assaulted and beat him,
pulled from his face handfuls of beard, and met all of his appeals to their humanity
with kicks and cuffs and by shooting him in the forehead with a weapon of sufficient
force to embed and flatten a bullet on his skull. A short time after this Mr. Benja-
min died, telling his wife before his death that his sufferings were due to the treat-
ment received at the hands of the Morrillton mob.

On the following day, being the day of the election at Plummerville, at the hour
for opening the polta, the two Republican judges were on hand ready to perform their
duties, but were ignored by the Democratic judge, who put in nomination two mem-
bers of his own party, and upon a mere affirmative vote, without putting the nega-
tive, declared them elected, and they were installed. The Republican judges, not
being permitted to act, accompanied by the Republican United States supervisor,
undertook to open polls elsewhere, but were notified by Democratic deputy sheriffs,
five of whom were present, that they would not be permitted to do so. Under these
and other threats, they abandoned their purpose, and the Republican supervisor re-
turned to where the election, as first organ ized, was being held, where he remained in
the faithful performance of his duty until the polls were closed ; whereupon the elec-
tion judge, by whose illegal action the board was organized, as before stated, took
the ballot-box and carried it from place to place through the town, followed however,
by the faithful supervisor, Charles Wahl. At last, finding that he could not shake
him off, he and the supervisor returned about 9 o'clock at night to the voting place,
finding one of the other judges there. Remaining a few minutes, he again left, at-
tempting to carry the box with him, which he only desisted from doing by the em-
phatic iusistance of the supervisor that the box should be left at the polling place,
with the other judge who was there.

About one- half hour thereafter four masked and armed men rushed into the room
and at the muzzles of their pistols compelled the remaining judge and supervisor to
turn their backs, whereupon they seized the box and poll-books and earned them
away. We are informed by Wahl and other credible persons that the box so stolen
contained 697 ballots, of which at least 372 were cast for John M. Clayton

Upon hearing of these unlawful acts, together with many others in different parts

768 CLAYTON VS. BRECKINRIDGE.

of his district, he, Clayton, felt it to be his duty to institute a contest for his seat in
Congress, and for the purpose of ascertaining the actual vote cast for him at the
Plumiuerville precinct, that he might ingraft that fact in his notice of contest, he
employed a responsible citizen named Alexander, of the Plummerville precinct, to ob-
tain the names of those who voted for him, who obtained the names of over 450 such
voters, when on the 17th of September his work suddenly terminated by reason of
the events which we now proceed to detail.

On the seventeenth of December Wahl, the aforementioned supervisor, was in-
veigled into a game of cards at night in the back room of a doctor's office in Plum-
merville, where he was seated in close proximity to a glass door, through which he
was shot by a would-be assassin, the ball piercing the top of his left ear and cutting
a gash in his neck about three inches long; Wahl fled to the house of the afore-
mentioned Alexander, where he remained until daylight, after which he reached his
home and soon after repaired to Little Rock, where he now remains for safety. This
attempt on the life of Wahl so alarmed Alexander as to cause him to abandon his
work and fly from the State.

For the crimes above enumerated no man has been arrested by State or county
authorities, nor has any official reward been offered. John M. Clayton went to Plum-
merville unarmed and unescorted, recognizing the futility of such precautions agaiust
the stealthy assassin, and believing that his opponent, Mr. Breckinridge, who was
aware of the condition of affairs in this county, would be willing and able to restrain
his partisans. While passing through Little Rock on his way there he said to Hon.
Henry M. Cooper, m response to a suggestion of danger: "I do not. believe that I
will be harmed, but the men who voted for me believe I was elected and so do I, and
I will go there even at the risk of my life." And so he went. After having engaged
for several days in takiug testimony, about 9 o'clock p. m. of January 29, while in
his room at his boarding-house, in the act of sitting down at a table near a window
to write to his motherless children, he was shot through the window by concealed
assassins a few feet from him, and instantly killed. We were unable to remove his
body until 3.30 o'clock p. m. of the next day, up to which time the sheriff of the
county had not appeared, being, in the language of his deputy, engaged in the more
important business of collecting taxes. Nor had any citizens of the town made the
slightest effort to trace or apprehend his murderers. The foregoing facts we stand
ready to substantiate in every essential particular, every one of which we believe to
be a material link in the chain of circumstances surrounding and leading to the in-
human murder of our brother, John M. Clayton.

POWELL CLAYTON.
W. H. H. CLAYTON.

The first lines assume a comprehensive conspiracy spreading, iufer-
entially, at least, over the county, district, and State, as a fact. Every-
thing stated are "facts." The State authorities and the people are
practically requested to give over any attempts to vindicate the memory
of John M. Clayton. The reasonable suspicion that his death grew out of
political difficulties that had arisen at that precinct is crystallized into
the proposition in the broadest terms, and here given the broadest con-
struction by application, that "all agree that this was a political assas-
sination;" Mr. Breckinridge is accused of a lack of "ability to restrain
his partisans;" a general reflection upon his supporters thus generally
indicted, or of not being " willing" to do so; and on this broad and
settled basis a general reform movement is started to cover " this and
other States."

To such wrongs as existed and governments always find something
to do the State, circuit, and county governments were addressing
themselves with a zeal that gave security to capital and citizens, and
remarkable and undiminished immigration and prosperity attest it.
Even negroes have continued to come into the State as was never
known before, so much so as to seriously disturb the supply of labor in
eastward and older Southern States. No " official rewards" were offered
for certain offenses when it is known that the law did not provide for
rewards in such cases, halfrof which here are grossly exaggerated and
the other half are false. Democratic and Republican rewards were
out for the ballot-box thieves, and the then management of the Gazette

CLAYTON VS. BRECKINRIDQE. 769

protested against its being increased. Any careful reader of this re-
port will see how many of these reckless and partisan statements have
been proven before the Federal court and by overwhelming testimony
before the subcommittee to be unfounded.

The citizens of the town are reflected upon as if all of them were
Democrats and in sympathy with murder, when it was well known that
the township is strongly Republican and that Republican officials and
citizens had acted in the same way as the Democrats, and that all were
bewildered and utterly without a trace except the tracks in the garden
and the pistol that was found near by. Then it closes with these
words :

The foregoing facts we stand ready to substantiate in every essential particular,
every one of which we believe to be a material link in the chain of circumstances
surrounding and leading to the inhuman murder of our brother, John M. Clayton.

And yet, when called upon to prove them, Mr. W. H. H. Clayton re-
sponded in the following language :

We have published the statement made by us of those facts, and it seems to us
that the burden of proof to disprove them is npon the other gentlemen. (Testimony,
p. 437.)

When General Clayton is similarly questioned about such matters it is :

Well, I don't know about that. It seems that even if evidence was procured it
would be almost impossible to hang them in that county.

And,

Oh, I can't make any suggestions. Well, I don't know what the State has done.
The State may have done everything it is required to do I don't know. (Testimony.
p. 559.)

And so it is. They all know it for politics, but none of them know
anything for conviction.

We do not say that Powell Clayton, so potential with the majority,
desired to prevent the detection and punishment of the supposed mur-
derers of his brother, which of course would stop the use of that event
as political capital ; but we do say that this is exactly the kind of an ad-
dress best calculated to insult the public, to cool and drive off popular
support from him, if not from the whole question, and to thus leave
the whole matter more exclusively in his own hands.

It was in the face of these features that the legislature passed the
additional reward act approved February 13, 1889, and, handicapped
by this injudicious quarrel, the efforts at detection began. The act was
delayed by having first passed one house in a form of doubtful consti-
tutionality, and this had to be considered and corrected. The law of
the State does not provide for expenditures for detectives, but upon the
theory of stimulating activity by a reward for " arrest and conviction."
The private subscriptions had been made upon this customary theory.

Hence for the time-being the proceedings consisted of what took
place under this theory of expenditure, and of the personal expendi-
tures of General Clayton and his brother.

Whatever may have been the theories and suppositions previously
held as to the stealing of the ballot-box, whether it was done by
Democrats to prevent the counting of the vote, or by negroes, as they
threatened to do, as the Democrats had all the clerks and judges of
election at this box, and the negroes said they thought they were going
to " stuff" it, or by white Republicans from the same fear or to make
a pretext to start a contest in case the actual vote should run close
H. Mis. 137 49

770 CLAYTON VS. BRECKINRIDGE.

and the new House should be Republican ; or whatever it may have
been, the generally acc< pted idea was that the men who stole the box,
or the men in that county and locality who were under indictments,
to which reference has been made, were the parties guilty of the mur-
der. In a political way sympathies, etc., were charged to extend further,
as shown, but general suspicion located the actual doers of the deed in
this group.

The first thing to determine, before relating subsequent proceedings,
is this list of men. They come under two heads, the indicted men and
the ballot-box thieves. The men under indictments are easy to identify,
for their names appear in the court records. It is difficult to assume
that the election officials stole their own box, for with the fondness for
whisky that the Republican Supervisor Wahl relates of 'himself on page
347 of the testimony, it would have been easy to have disqualified him
for inspection duty. Then, the officials, being all of one party, could, if
they wanted to do wrong, have stuffed the box instead of stealing it.
But if they are suspected they at least are known. The only other
Democrats ever mentioned in this connection with suspicion, either di-
rect or remote, so far as the record shows or we have any knowledge,
are first, Dr. B. G. White and W. C. Palmer, citizens of Plummerville,
and the posse that came to Plummerville that night from Morrillton.
Various witnesses state who these men were. There was no conceal-
ment as to who composed the posse.

Some of the men charged with stealing the ballot-box w ere also under
indictment upon other charges ; but these two lists and these two citi-
zens embrace every Democrat suspected of the killing under the two
theories, if they may be separated, that he was killed by the ballot-box
thieves or by the men laboring under indictments. If none of the Dem-
ocrats enumerated stole the box, then presumably no Democrat stole
it. That we conclude, and as the majority hold that some of these men
did it, then they must hold the same belief. But all of these men are
known. They are not numerous, and their names are all in the testimony.
They are as well known and as clearly identified as if they had been
convicted by the Federal court of the offenses charged, instead of hav-
ing been acquitted, as they were. Of course their acquittal upon these
charges does not prove that none of them committed the murder. But
these charges were for offenses real or alleged along in November, 1888,
and the killing was done on the 29th of January, 1889.

Other facts and circumstances must be established as a new crime was
committed. They might have committed the first crimes and not the last
one. They would have to be tried separately. Therefore their acquittal
by the Federal court is no embarrassment to this inquiry, for all admit
that this list of names includes all of those who could possibly have
been guilty under these theories, for we can not assume that if Repub-
licans stole the box they would on that account have killed Colonel Clay-
ton ; and no Republicans in this county were being either prosecuted or
persecuted by indictment or otherwise. Hence, for the purposes of this
inquiry let us assume that all these Democrats were guilty of the pre-
vious acts, real or alleged, as charged against them, and with these
two lists we are as completely equipped as it is possible to be for this
line of investigation. These facts were, of course, as well known to
the detectives and the State as they are to us, and we must, judge of the
results of their efforts in the light of them.

The rewards of course stimulated generally to suspicion and search ;
but firrnh impressed with the foregoing theory, as General Clayton and
his brother frequently say they were, and as nearly everybody was,

CLAYTON VS. BRECKINEIDGE. 771

their efforts can best be stated in their own language. W. H. H. Clay-
ton details the matter as follows :

After he was buried we, of course, took steps to ascertain who the murderers were.
My brother Powell and myself wrote a statement to give to the State press. We then
sat down to devise some method and some means by which we could apprehend who
the murderers were. At Pine Bluff, before we left there, we wrote to Pinkertons to
send us their best man. Before we left Pine Bluff' I believe we received a letter from
Piukerton stating that they would send a man by the name of Woods here, that they
regarded as one of the best men they had. He came to Little Rock, and when we
came over we found him here. We employed him and gave him unlimited charge.
We paid him at the rate of $8 a day, all his expenses, and we paid every necessary
expense, or every expense he thought necessary, such as employing other men, send-
ing them into the country, sending them into Plummerville in a thousand different
ways, anytning he might suggest; we gave him carte-blanche to go ahead and we
would pay the bill, make it whatever he pleased. He made his reports in the first
place to nie ami afterwards to to my brother. I sent those reports to my brother and
Le sent them to Mr. McClure. Nothing was accomplished, however. In a short time
after that we saw him here. We revised our plans, my brother and I. My brother
aud I called on Governor Eagle for the purpose of urging him to do whatever he
could; we received very kind attention at his hands, and thought at that time that
he would do everything that he could to assist us in the premises. I went and wrote
to Judge Cunningham, judge of the circuit court, and to Mr. Carter, the prosecuting
attorney, asking them to grant me an interview. They stated to me they would. I
went dwn and saw them, and I think I thought got their hearty co-operation as
far as those two officers were concerned; and I think those iwo gentlemen did all in
their power. From that time on we have done everything we could in our power to
find out who these men were. (Testimony, p. 424.)

Again he says, on page 435 :

I have spent thousands of dollars in that direction.

As the result of all this he says :

Wherever we could find a clue we run it far enough to see there was nothing in it.
(Testimony, p. 440.)

Also :

Our theory has always been that the politicians of Con way County did this thing
(p. 440).

Also :

And all the facts we had pointed in that direction (p. 440).

Also :

But I will state now we have no sufficient proof, nor do we know of anybody who
does; we have a great many suspicious circumstances, and everything seem to point
in one direction (pp. 435 and 436).

Also:

A thousand little impressions have been made on my mind in the investigation of
this matter (p. 427).

He also says, on pages 426-7, that he thinks men in Little Hock were
concerned in it.
Again, on page 442, he refers to O. Bently and Eobert Pate as

The two men we believed to be the murderers of my brother.

And on page 436, in speaking of the guilt of his brother's murder,
he says :
Perhaps it extended as far as Pine BlnfF.

This testimony was nearly all in response to questions addressed by
Mr. Breckiuridge, who concluded as follows :

Mr. BRECKINRIDGK. I will ask in a general way if you have the names of any par-
ties that this committee can interrogate that can fix guilt on any body in regard to
this offense; and if so, if you will furnish them to the chairman. A. We will see
what we can produce daring the investigation ; Judge McClure has that in hand,
(P. 443.)

772 CLAYTON VS. BRECKINRIDGE.

General Powell Clayton's responses, if not so scattering, were even
more vague and general. The sum of it is about as follows:

I mean to say, if John M. Clayton had not been a Republican he would never have
been assassinated. I mean to say if he hadn't been a candidate for Congress in that
Second Congressional district, he would never have been assassinated. If he had
not been investigating the stealing of the ballot-box and making a contest in that
election there, he would not have been assassinated. (P. 557.)

This is broad enough to cover anything you want, dexterous enough
to point anywhere you want, and' vague enough to keep you from
catching anybody. He might have added with equal propriety that
if he had not been at Plummerville he would not have been killed.

Judge McClure has taken no special action as indicated by Mr. W.
H. H. Clayton, so far as we know.

The most important witness in connection with this theory, and in-
deed in connection with the whole case, would seem to be the chosen
detective sent by the Pinkerton's, a man skilled above all others, who
have been associated with the case, and who has been so abundantly
supplied with facilities and money as Mr. Clayton describes. General
Clayton speaks of him as "the best detective talent," on page 556.
Then he says he then thought " the men who stole the ballot box were
probably behind the offense covering their own transactions."

Nor had he any difficulty in getting meu to work. Mr. Clayton says,
page 440, that u a hundred men wanted to go into the field as detect-
ives ;" and elsewhere we quote him as to sending meu everywhere for
Wood. We don't know what the testimony of this detective who had
" charge" of the case would be. Mr. Breckiuridge says he doesn't know.
But we presume it would be the truth. A full examination of him is
indispensable to an exhaustion of the case. Mr. Breckinridge offered to
pay his expenses to Little Rock. He was refused his urgent request to
have him there, but was positively promised that he should be here.
He is still refused. He is likewise promised and subsequently refused
as to Mr. Carter, the prosecuting attorney, Judge Cunningham, the
judge of the district, both so approvingly spoken of by the Claytons.
Also as to Coblentz, the Republican who found the pistol, as to the
Meacham Arms Company and their invoice books, from whom we know
the pistol came. All of these, acknowledged at the time as most im-
portant witnesses, are promised to be called at Washington, as well as
others, and they are afterwards refused. There is something very
strange about all this. Wood seems to have found out something or to
have formed some opinion that is not wanted. All the push seems to
have been taken out of the majority. They won't go ahead. They
won't even keep their promises which are already out. Is this " thor-
ough ?" Is it just to Mr. Breckinridge and others whom they fiercely
accuse ?

If other theories have failed does not that make this conduct all the
more significant?

The proceedings of Governor Eagle and Sheriff' Shelby, of Coiiway
County, are so intimately connected that we will consider them to-
gether, and what we say under this head will comprise an account of
all that remains to be said in connection with the killing of Colonel
Clayton in the present incomplete state of the investigation. The gov-
ernor's action upon the instant of hearing of the death of Colonel
Clayton, previously related, was that of a good and capable man,
and it has been most conscientious throughout. He has so far ex-
hausted every possible resource, and he has done all that was possible
for a law-abiding official to do. Those who go beyond the law evi-

CLAYTON VS. BRECKINRIDGE. 773

dently do so for revenge or for political purposes, and, as in the case
of Governor Clay ton's administration, they are compelled to have a spe-
cial act of the legislature passed afterwards to condone their own law-
lessness. If such men as Governor Clayton and Mr. W. H. H. Clayton
have had to acknowledge that they could find no fault with the gover-
nor, as they do, it conies with poor grace for the committee to censure
him.

The sheriff did not sufficiently appreciate the case at first; but we
think he did his full duty after the governor saw him and impressed
the case upon him. He should have broken his appointment at the
remote point where he was engaged and employed at the time. He
should have immediately left off the collection of taxes and hurried
instantly to Plummerville. His deputy, Ollie Bentley, who was ac-
cused, and whom the sheriff at one time suspected of killing Colonel
Clayton, was overwhelmingly shown to be innocent. The sheriff's con-
duct towards him was discreet. It met the approval of the governor ;
and all the stories about his crying in talking to W. H. H. Clayton, and
saying that the sheriff " was engaged in more important business," and
that the accidental killing of his brother while handling a hamrnerless
pistol, was intentional, we believe to be utterly groundless.

Mr. Breckiuridge has shown not only the utmost zeal in supporting
the governor, but also a spirit of comradeship in doing for the memory
of his opponent, who was also his personal friend, all that could possi-
bly be expected from an honorable man. His entire course in this mat-
ter has been both in spirit and in fact the reverse of what in prejudice
and injustice has been attributed to him. After the Clayton statement,
assailing him so pointedly, and the people of his district so bitterly, he
refused to enter into the proffered quarrel, and only after these matters
were taken up officially, nearly a year after wards, did he begin to reply.

Governor Eagle, having no money to employ detectives, could only
act upon such clues as the hope of the rewards or other causes might
bring to his notice. Say in March, 1889, he had a letter implicating
two men Hervey, one of the indicted men, and a man named Alnut, a
guard on a convict farm. Mr. Breekiuridge returned home from Wash-
ington about that time, Congress having adjourned, and calling at once
to see the governor, he supplied him with funds to follow this up. The
governor did so, and found there was nothing in it. Soon afterwards
Mr. Breckiuridge, partly of his own means, and partly with that of
other citizens of Pine Bluff, gave the governor $500 additional to use
at his discretion for detective purposes.

Before going away for the summer, he asked the governor to name
any amount of money he thought he might need and he would see that
he was supplied. This is related by the governor (page 560 of the tes-
timony, and at other places, and the Gazette), then under the manage-
ment that General Clayton approved of so highly, commended all this
action in the highest terms, but from the report of the majority it
would not be supposed that it was even taken.

Without following minor matters we will relate that the first beard
of the Hooper theory was in a letter to Sheriff Shelby from Jared Sater,
of Jefferson ville, Ind., of July 1, 1890 (testimony, page 61H). In this
he simply says he knows a man who said in November, 1888, that he
was going to kill John M. Clayton, and that he believes from other evi-
dence he either did or had it done. This letter left so vague an impres-
sion upon the mind of the governor, Mr. Breckinridge, and others, that
we have to refer to the letters at the time to definitely fix it. It was
one of the batch of letters, etc., that the sheriff, through Mr. Armstrong,

774 CLAYTON VS. BRECKINRIDGE.

sent Mr. Breckinridge to read, at the request of the governor. Mr.
Breckinridge writes the governor his views about them July 9, 1889.
The only reference he makes to the Sater or Hooper theory is this :

Jarecl Sater should be asked the name of his man and witnesses. (Testimony, p.
624.)

No more is heard of this until the last of July, when the governor
wrote Mr. Breckinridge the following letter, relating to a fuller letter
that had been received from Sater.

STATE OF ARKANSAS, EXECUTIVE OFFICE,

Little Rock, July 29, 1889.

MY DEAR SIR : I iuclose herewith copy of a letter received by M. D. Shelby, the
sheriff of Conway Comity, from one Jared Sater, of Jeffersonville, Iiid. I am in-
clined to think that the contents furnish a clue which, if properly lollowed up, will
result in the capture of the murderer of Clayton. The sheriff (Mr. Shelby) requested
that I furnish a part of the money in my hands to be used in sending a man out to
California to investigate the matter. I declined to do this without first submitting
the letter received from Sater by Shelby to you and having your views as to the pro-
priety of doing so.

You will see from the correspondence that Mr. Shelby has agreed with Sater to give
him half of the reward offered for the arrest and conviction of Thomas Hooper, the
supposed assassin. I desire yonr opinion as to whether it would be better to quietly
work up the matter through some one in California or whether it would be better to
furnish money to have some one go out there and investigate.
Awaiting your reply, I am, dear sir, yours, truly,

JAMES P. EAGLE,

Governor,
By C. W. WALKER,

Executive Cleric.
Hon. C. B. BRECKIXRIDGE,

St. Paul, Minn.,

P. S. If you are of opinion that some one had better go, how would it do to have
the sheriff of Con way County go?
Yours,

J. P. E.,
By C. W. W.,

Cleric.
(Mr. Breckinridge's brief, p. 18.)

The governor is "inclined to think" that this " will result in the cap-
ture of the murderer of Clayton."

This was not viewed so hopefully by Mr. Breckinridge in his reply.
The governor stated that he did not furnish that letter because in stating
his grounds of doubt Mr. Breckinridge wrote confidentially his opinion
or doubts as to certain individuals. This is related in the colloquy on
page 18 of Mr. Breckinridge's brief; will be found in Governor Eagle's
testimony, and is familiar to all the committee. Not until October 12,
1.S89, did Mr. Breckinridge feel any confidence in this clue. The gov-
ernor had written him on the 4th of October, as follows:

STATE OF ARKANSAS, EXECUTIVE OFFICE,

Little Rock, October 4, 1889.

MY DKAR SIR: I herewith inclose to you papers, with stamps and indorsements as
yon see them. I telegraphed you on the 30th ultimo that I would send the papers,
and really thought I had done so. I would be obliged to yon for your views at length
in regard to the matter, or, if yon contemplate returning soon, we can have a personal
interview. What do yon think of the propriety of putting the matter in the hands
of a Piukerton detect! vet One-half of the reward according to agreement with Mr.
Shelby goes to informer.
Very truly yours,

JAMES P. EAGLE,

Governor.
By WALKER,

Executive Clerk.
Hon. C. R. BRECKIXRIDGB,

Washington, D. C.

CLAYTON VS. BRECKINRIDGE. 775

To this Mr. Breckiuridge replied on the 12th as follows:

HOUSE OF REPRESENTATIVES U. S.,

Washington, D. C., Oct. 12, 1889.
Governor JAMES P. EAGLE, Little Rock, Ark. :

MY DEAR SIR: Yonr favor of the 4th inst., with inclosnre, was dnly received. lex-
pect Sheriff Shelby had hetter go to Calfornia. He will doubtless need the help of a
shrewd official after he gets there to col'.ect evidence. I take it that his departure
should be secret, for there may be personal sympathizers who would give the party
notice of Shelby's departure. This might lead to such deportment as to prevent the
getting of evidence still needed. I should thiuk an officer or a detective could do much
more in California with Shelby on the ground, with his knowledge of Arkansas de-
tails and associations, than could otherwise be done. The letter from "Jack the
Ripper" should be taken along and compared with his writing.

I have inquired of Sater, through a Mr. Ingram, of the Treasury Department, whose
home is at Jeffersonville. Ingrain is said to be a perfectly responsible man. ami he
says Sater and his family are people of veracity, and that they were in California at
the time they speak of. I did not reveal the nature of the business in hand.

I shall be home in ten days or two weeks, and will you see as soon as I arrive.
This trip will consume largely of the funds you have. I think I can promptly get
mure.

This clew certainly leads to what appeared to me to be an extremely improbable
direction, but it takes on very decided and convincing scope. These matters, involv-
ing the lite tirst of one and then of another, are very sad.
Sincerely, yours,

C. R. BRECKINBRIDGE.

(Record, p. 624.)

He had promised in his letter in August, from St. Paul, to make in-
quiries of Indiaiiians at Washington about Sater's reliability, and this
is the result of the inquiries.

On the 23d of December, 1889, the governor wrote Mr. Breckinridge
as follows :

LITTLE ROCK, December 23, 1889.

DEAR SIR : 1 am directed by Governor Eagle to say, in reply to your favor of 19th
inst., thai he will write to St. Louis parties as you request. The governor further
directs me to say that he has received another letter from the sheriff of Los Angeles
County, Cal., and that he is now fully impressed with the belief that that is the
right clue. The family of that California party has recently returned to (Jouway
County, but report the man (i. e., supposed assassin) as dead. The sheriff of Con way
County is now working up that clue, as is also the sheriff of Los Angeles County, Cal.,
and I will keep you advised as to developments.
Very truly,

Jxo. C. ENGLAND,

Private Secretary.
Hon. C. R. BRECKINRIDGE,

Washington, D. C.
(Mr. Breckinridge's brief, p. 19.)

The governor was then "fully impressed with the belief that that is
the right clue." This implied disbelief in all the other clues which had
been so fully and so exhaustively explored.

Then on January 1, 1890, tbe governor got the following letter from
the sheriff of Los Angeles County, Cal. the law officer and a Republi-
can :

Los ANGELES, Jan. 1, 1890.
Hon. J. P. EAGLK, Governor State of Arkansas:

DEAR SIR : Yours of December 1<>, 1889, duly received ; contents noted. Have been
unable to reply ere this, owing to unusually heavy rains and washouts. We will, h^w-
ever, now give yon a complete report in regard to the matter of Thomas Hooper.
Something like eight or nine months ago one Chas. W. Lewis came into my oflire at
night-time and gave the fnllowiny; information to W. A. Hainmel, one of my deputies.
That some time in latter part of Idrt8 he made the acquaintance of Thomas Hooper

776 CLAYTON VS. BRECKINRIDGE.

nnder the following circumstances: Hooper bad been put out of the honse in which
be had been living for non-payment of rent, and that he (Lewis) took him into his
owu house and cared for him, as Hooper was quite sick at the time. The result was
that Lewis and Hooper became quite intimate, and Lewis, observing that Hooper was
moody and surly at times, finally asked Hooper what was the matter, when Hooper
made the following statement : That in 1866 (supposed to be the same year in which
Hooper's father was killed) Hooper intimated that he had killed two men, whose
names Lewis understood to be Thomas and Mays (first names unknown), and Lewis
was not sure of these names being right, but was sure of the circumstances. The
men were ambushed in a corn-field in Conway County, Ark. ; that these two men
were two of three ringleaders of a mob that had lynched his father, and that the third
man was Senator Clayton, and that he would kill him, too ; that he could not rest in
his grave if he did not kill him ; that, in fact, it was his religion to revenge the death
of his father ; and if Lewis, ever heard of Clayton dying with his boots on, to jnst lay
it to him. Lewis further stated that H. disappeared from Los Angeles the latter part
of December, 1888, or the 1st of January, 1689; and when he heard of the murder of
Senator Clayton, and also learning of H.'s absence from home, through H.'s own son, he
finally thought it his duty to see me. I at once wrote to the authorities proposed
by Lewis, but never received an answer, one letter having been returned ; and until
I received your first letter had taken no active steps in the matter.

I then, iii conjunction with H. A. Hainmel and A. W. Marsh, my deputies, and both
in possession of these facts, we finally located H. at Los Netos Township, some fifteen
miles from here. In the meantime Lewis left here, leaving no address, but we have
now located him in Minneapolis, Minn., where he is now, or was, working in a
lauudry, as shirt ironer. We had taken steps to get Lewis' affidavit of these facts,
but in the meantime Hooper died. Of this fact we could not get information, for the
reason that it has been raining here for nearly a month, and he died just when the
raiu commenced, and as the rauchito where he lived was mostly surrounded by water,
we made no attempt, knowing full well that he would not leave.

After Hooper returned here he purchased a ranch reported to be worth $10,000, al-
though apparently poor a year before. I have been to considerable expense, and
have made a thorough examination of the matter, and would be glad to hear from
you. You can rely on the foregoing as a simple, unvarnished statement of the facts
in this case.

Respectfully,

M. G. AGUIRRE,
Sheriff of Los Angeles County.

Here this Republican official produces a witness, presumably respon-
sible, who confirms all that JSater had said. He proves from Hooper's
son that the father was absent at the time of the killing, and no men-
tion was made, or had ever been made, of ill-health. He closes by say-
ing : "You can rely on the foregoing as a simple, unvarnished statement
of the facts in this case."

Thus everything remained with only confirmatory details until the
committee went to Little Rock. The evidence there was almost as con-
firmatory as contradictory. The dispatch received by the reporter of
the St. Louis Republic, referred to on page 7 of the majority report,
was in reply to one sent at the request of Mr. JBreckinridge, who used
every effort to exhaust every clue. We have seen how the committee
refused to take depositions of parties in California to settle conflicting
testimony at Little Rock; but the evidence procured lately by the
governor, page 28 of Mr. Breckinridge's brief, indicates with reasonable
certainty that this clue also is false.

A perusal of only the parts we introduce, all being of the same tenor,
shows how conclusive the truth of this appeared at one time. If what
the California sheriff said first and last was true, there was, under the
circumstances, a reasonable certainty of its truth; but it is evident
that he is not reliable, and yet that is the last thing to expect from the
official chosen by the people to deal with criminal matters. How far the
governor was from being beguiled into this is very apparent; that
Mr. Breckinridge was the last and the most reluctant person to give
credence to it is equally clear.

The committee complains that "no one was sent to California to see

CLAYTON VS. BRECKINR1DGE. 777

whether the story was true or not," and yet the matter was intrusted
to the sheriff of their own political faith.

Alter the thousands of dollars spent by the Messrs. Clayton on the
ballot-box theory, after the sifting of everything possible through the
Federal court trials, after the undeviating attention of the governor to
only this theory for six mouths, after the open rewards of about
$11,000 for a year or more, the committee still say there has not been
given " due weight to the suspicion that should naturally attach to the
ballot-box thieves," and (p. 5) in the very next breath complain of the
governor for not sending a man to California.

They take credit for sending for Sater (p. 3), when it was only by the
most persistent efforts of Mr. Breckinridge that they consented to let
him come to Little Rock, he or his friends advancing his expenses.
We know from experience that if he had been deferred to be examined
at Washington he would never have been examined at all.

They say (p. 5) "they took all the testimony available," and yet they
violated their agreement to take testimony in many and most import-
ant instances.

They say (p. 6) " Mr. Breckinridge accepted this theory as one which
relieved his partisans in Arkansas from the charge," in the face of the
evidence that he was the last man to accept it.

They say (p. 7) "the theory was a pleasing one to contestee, and no
one would blame him for following such a clue," not only in the face of
the facts we have given, but in the face of the additional fact that the
conduct they impute and indorse would be highly dishonorable in Mr.
Breckinridge.

They say (p. 7) "no reasonable explanation of the murder of Colonel
Clayton appears, except that some of the ballot box thieves, finding the
taking of the testimony progressing, killed him," which clearly makes
it a personal crime and personal to those men; and yet they argue all
through that it. was not of this nature, but to affect the election and not
to prevent their own punishment, and then on page 15 they state a
wholly different theory, as settling a mere personal rivalry and dispute,
such as men have settled in duels. Their language is as follows:

In the old days of the code of honor political antagonists often met face to face and
eye to eye and sought their adversary's life. This method of settling political differ-
ences has become obsolete, and we frequently congratulate ourselves upon the im-
proved moral tone of our day and generation.

They also complain, on page 7, that "this theory would only, in any
event, have partly solved the mystery, for there were at least two
persons present at the murder." The logic of this is that if you don't
know beforehand all there is in a clue you must not pursue it, and if
a clue promises directly only to disclose the principal you must neglect
it because it does not immediately discover the confederate.

Thomas Hooper was a Democrat. He had been a brave soldier all
through the war, in Governor Eagle's regiment. The governor knew
him well, and remembered him with strong personal attachment. The
town of Morrilton, the county of Conway and adjoining counties, con-
tained his brothers, nephews, and numerous other kinspeople. They
are all Democrats, and many of them people of influence, one brother
being, or has been, a member of the legislature. Who could have had
more personal sympathy than this family ? Who more dangerous to
arouse in that community! If there were any "Democratic" secrets,
who would be more likely than they to know something of them ? The
most casual reflection will convince that this strong and numerous con-
nection could not be put to the distress they were without serious peril

778 CLAYTON VS. BRECKINRIDGE.

to any guilty people there who had secrets to keep. It put tho moat
powerful internal influences at work to split the local Democracy into
angry factions, to awaken crimination and recrimination, to bring out
every latent suspicion, to bring out the truth if anybody there knew
it. One of the most conclusive evidences of the innocence of those
people of all knowledge or sympathy with this eveat is the failure of
this fearful ordeal to develop a single fact. This makes the mystery of
the killing of Clayton all the more strange. It is evident in every way
that this clue was not in any sense a pleasing one, or one calculated
to shield any guilty man.

Reference to the acquittal of the men tried before the Federal court
for conspiring to injure Waul, and to their tes imony, Page et seq.,
shows clearly that no conspiracy existed against him, nor did these men
try to harm hitn. He was one of the foremost men in getting up the
game of cards, he was foremost in the drinking, and he testifies himself
that the change of seats was made at his own request. The shot passed
soel^seto others as to indicate that they might have been tired at,
wounding the town marshal in the neck with a piece of glass, and it is
most probable that the disturbance he had that day with drunken team-
sters accounts for the whole matter. One or more of them had threat-
ened to kill him, and they were still camping near by. The testimony
is frank and full, and it is evident Wahl's companions were as much
startled and alarmed as he. As to the statement that he, only, was in-
dicted for playing cards, we did not look it up ; but we would expect
he testimony to show that there is no more in this than in the others
features. The testimony of Captain Stowers, Dr. Say le, and others, show
conclusively that the militia talk is a gross exaggeration.

THE OUTRAGE BEFORE THE SUBCOMMITTEE, IN THE UNITED STATES
COURT- ROOM, AT LITTLE ROCK, ARK.

A very significant event occurred in the United States court-room, at
Little Rock, during the taking of testimony, on the night of the 5th
of May, 1890. Had the acts of Republicans on this occasion been com-
mitted by Democrats the country would have rung with statements
and charges, and we think the event would have occupied a most coii-
spic'ious place in the report of the majority. As it is, the matter is
briefly and obscurely printed in the testimony and no mention is made
of it in the report.

The various charges and insinuations of every conceivable character
that had been made, especially against citizens of Conway County, were
calculated to be very irritating. Mr. Carroll Armstrong, of that county,
had been in attendance for some time. He is a small, frail man, weigh-
ing but little, if any, over 100 pounds, and of nervous temperament.
Evidently laboring under a strong sense of injustice done to his neigh-
bors and to the good name of his county, he for the first time indulged
in language similar to that which had been used towards them and him,
but of far less import than what he had been called upon to endure.
While this does not justify an expression of resentment, especially at
that time and place, still less is an assault to be justified at the same
time and place and under far less provoking circumstances, and still less
if by one most experienced in the proprieties and restraints appropriate
to such a place and occasion. The latter offender was Judge John
McClure, a large and powerful man, and the difference in their physical
Strength would alone suggest forbearance.

The Record is as follows:

Mr. CARROLL ARMSTRONG then addressed the committee as follows :

Mr. Chairman : There have been some foul charges made against the people of

CLAYTON VS. BRECKINRIDGE. 779

Morrilltou and of Con way County by the mouth-piece of Powell Clayton. 1 desire to
enter an appearance for Conway County.

Mr. LACKY (to the stenographer). Note that Mr. Armstrong desires to enter au
appearance for Con way County.

Mr. ARMSTRONG. I understand this committee intends in a short time to adjonrn,
after having received the testimony here that would cast a cloud upon the people ol
Conway County, and retire to the city of Washington for the purpose of making their
report.

Here he was interrupted again by Mr. Lacey, who remarked :

Mr. LACEY. I think that is quite probable.

Mr. Armstrong was evidently stung by the confirmation of his worst
fears of injustice to his county and by the interruptions, manner, and
words of Mr. Lacey. He continued his application as follows:

Mr. ARMSTRONG. I insist that this committee shall subpoena witnesses from the
people of Couway County, from the good people of Conway County, to refute the
charges that have been made by this infamous slanderer.

At this instant Judge McClure rose from his seat and aimed a pow-
erful blow at Mr. Armstrong's face, but he dodged it and received it
only partially on the side of his head. Being thus assaulted Mr. Arm-
strong, as he dodged the blow, caught with his left hand at Judge Mc-
Clure's beard, which is full and long. The earnestness and honesty of
Mr. Armstrong's request and the nature of the interruptions had fast-
ened the attention of every one.

The assault by Judge McClure, in the Federal court-room, in the
presence of a Congressional committee, and in the presence of a num-
ber of ladies, was startling to all. Messrs. McCain and Harrod quietly
and instantly stepped between the parties before McClure could follow
up his blow. Mr. Armstrong stood where McCain and Harrod had
pushed him, and a deputy United States marshal quickly drew his pis-
tol and he held it on a level with about the middle of Mr. Armstrong's
back, behind whom he was standing. Mr. Breckinridge, who had
worked himself around near the group, while, like ourselves (Wilson
and Maisb), calling for order, ran instantly to Mr. Armstrong, and seiz-
ing him, pressed him back and down into a chair. Judge McClure,
Armstrong being removed, and adjured and confronted by McCain,
Harrod, and one or two others, sat down.

In the St. Louis Globe Democrat of May 13, 1890, there appeared
the following, as coming from Mr. Lacey :

If ArniiStroug had drawn his pistol, said Mr. Lacey, he would undoubtedly have
been shot immediately by the United States marshal, who stood in his rear prepared
for emergencies.

This is the Nagle case reversed. The Supreme Court held that when
a powerful man ofl'ered to strike a weak man (Judge Terry having ap-
proached Judge Field evidently for this purpose, in a dining-room), the
United States marshal was justified in killing the strong man in defense
of the weak man. Here it seems the marshal was also stationed upon
the lookout, with instructions. The strong man was not to be killed in
this case if he ofl'ered to strike the weak one, nor even if he struck him,
nor did there seem to be the slightest indication of instructions to arrest
an assailant, and thus to prevent a difficulty.

We did not see the slightest indication, nor is there any reason to
believe that a single Democrat had a weapon of any kind; and Mr.
Armstrong has stated personally that he was totally unarmed. But it
has been stated and not denied, so tar as we know, that Mr. W. H. H.
Clayton threw his hand to his hip to draw his pistol, and he testifies
on page 448 that General Powell Clayton habitually goes armed.

It was necessary for something to be alleged against their opponents

780

CLAYTON VS. BRECKINRIDGE.

that can be distorted ; that can be used to " influence the elections in the
iforth;" that can make up for the lack of evidence to declare this seat
vacant; that can be used to obscure and overcome the fact that the testi-
mony positively proves that Mr. Breckinridge was elected. Political
capital must be had to help pass a force bill. But the obvious plot mis-
carried, and we see the whole matter placed with studied obscurity in the
testimony, not indexed, and described in the following brief and color-
less words :

(At this point in Mr. Armstrong's address a personal difficulty occurred between
Mr. Armstrong and Judge McClure, occasioning considerable excitement for few
minutes.)

This indicates the character of this whole contest, investigation, and
proceeding; and we ask the House to weigh well all the facts we cite
before it indorses the actions, assertions, and recommendations of the
majority of the subcommittee or of the full committee.

THE RESULT OF THE ELECTION.

The minority do not find or believe that the election was affected in
the least, or was intended to be affected, by but one event, and that was
the theft, by unknown parties, of the Plummerville ballot-box. The
count of this vote, however, upon the accepted proof of the majority
of the committee, leaves Mr. Breckinridge a majority in the district of
413 votes, and this is his rightful majority. But to show that Mr.
Breckinridge was elected upon every possible theory of the case, we
give the following table :

Breckin-
ridge.

Clayton.

Total vote returned for Breckinridge 17,857

Total vote returned for Clay ton 17,011

Deduct the leaser from the greater 17,011

Majority for Breckinridge 846

Clayton's vote proved at Plnmraerville 558

Breckinridge's vote proved at Plummerville 125

Deduct the lesser from the greater 125

Clayton's majority at Plnmmerville 433

Breckinridge's majority brought down 846

Deduct the lesser from the greater 433

Breckinridgo's true majority in the district 413

Town of Augusta, Woodruff County, 8 negroes who voted for Breckinridge testi-
fied they did not intend to so vote. Multiply by 2 and deduct 16

Leaving majority for Breckinridge 397

Riverside precinct. Woodruff County, 22 negroes testified as above ; but the ma-
jority say29. Multiply the latter by 2 and deduct 68

Leaving majority for Breckinridge 339

Cotton Plant, Woodruff County, 48 negroes testified as above. Multiply by 2 and

deduct 96

Leaving majority for Breckinridge 243

White River, 21 negroes testify as above, but the majority say 62. Multiply the

latter by 2 and deduct 124

Leaving majority for Breckinridge 119

They claim 29 negroes at Cotton Plant who did not vote (we make it 23) and are

not recorded either way, but now come and say they did vote. Deduct this 29

Majority left for Breckinridge 60

Thirteen other negroes are brought up from the other precincts and made to swear

they voted. Deduct 13

Majority left for Breckinridge 77

According to the figures as computed by McCain &. Harrod, attorneys at Little
Rock, for Mr. Breckinridg*', the above final result, correctly computed from
tho testimony, exclnsive of the negroes not voting at all, makes the majority

foi Breckinridge 226

CLAYTON VS. BRECKINRIDGE. 781

They make the number of those voters 23, instead of 29 and 13=52, as
above. But this is immaterial as the highest and all the estimates of the
committee are included above.

This includes every vote counted or claimed in any and every way by
the majority. The result is that instead of showing that Mr. Breckin-
ridge was not elected, the testimony shows most positively that he was
elected.

The only way in which this can be overcome is by casting out Demo-
cratic votes which are conceded by the notice of contest to be fair.
Or, if the committee is conducting an " investigation," then this is not
to be treated as a contest, but as an inquiry ; not as a statutory case,
but as an investigation under a special resolution. Under this theory
no evidence should be acceptable to the committee or the House except
that which is procured by the same mode upon the one side as upon
the other. To poll the vote upon one side and not to poll it upon the
other is manifestly unfair,

The sub-committee was acting independently, for the House. The
lawyers who appeared were employed and acting solely as the repre-
sentatives and in the interest of other parties than the House. The
policy of the committee seems to have been to follow the theory of the
one side, and to exclude the testimony of the other side. But we are
disposed to believe the refusal to poll the vote for Mr. Breckinridge
at the Woodruff County precincts was caused by the astonishing result
of the Plummerville vote when polled.

It was alleged in the notice of contest that he had only 75 votes there.
The vote was polled and the committee concedes that he had 125 votes
there, or more than 66 per cent, in excess of what the subcommittee ex-
pected. If this extended to the Woodruff County boxes, the result
would be far more disastrous to Eepublican expectations or wishes than
the present demonstrated majority for Breckinridge shows.

Believing from the testimony as developed in this case, that Mr.
Breckinridge was fairly and honestly elected, we recommend the adop-
tion of the following resolution :

"Resolved, That Clifton K. Breckinridge was elected to the seat
which he now holds as Representative in Congress from the Second
Congressional district of the State of Arkansas, and he is entitled to
the same."

LEVI MAISH.
E. P. C. WILSON.
CHAS. F. CRISP.
CHAS. T. O'FERRALL.

J. H. OUTHWAITE.

L. W. MOORE.

HENRY KERNAGHAN vs. CHARLES E. HOOKER.

SEVENTH MISSISSIPPI.

Contestant charged partisan and illegal appointment of election
officers, fraudulent registration, false counting, ballot-box-stuffing, in-
terference with United States supervisors, violence, and intimidation.
The committee find that all these practices were resorted to and that a
considerable portion of contestee's majority is due to them ; but, the evi-
dence failing to show that the frauds affected enough votes to over-
come the entire majority returned for contestee, he is still entitled to
the seat.

There is no minority report.

The case was not reached in the House.

783

FEBRUARY 25, 1891. Mr. ROWELL, from the Committee on Elections,
submitted the following report:

At the election held in the Seventh Congressional district of Missis-
sippi on November 6, 1888, Henry Kernaghan and Charles B. Hooker
were the Republican and Democratic candidates, respectively, for the
office ot Representative in Congress. According to the declared result
ot the election, Hooker received 8,491 majority.

In due time, and in accordance with law, Kernaghan filed his notice
of contest, alleging, in substance, that the commissioners of election
in the several counties of the district were not appointed, as provided
by law, by the governor, lieutenant-governor, and secretary of state,
but were in fact appointed by one D. P. Porter, deputy secretary of
state and chairman of the Democratic executive committee of the
Seventh Congressional district; that in making such appointments the
recommendations of the Republican executive committees were ignored
and boards were appointed either composed entirely of Democrats or
with a Republican minority member who could be controlled by his Dem-
ocratic associates; that in appointing precinct judges the county com-
missioners of election, in violation of law, either appointed boards com-
posed entirely of Democrats or with one illiterate Republican; that in
holding the election fraudulent registrations were made, false counting
resorted to, ballot boxes stuffed, United States supervisors prevented
from discharging their duty, violence and intimidation resorted to to
keep voters from the polls, and that other like frauds were prevalent,
with the result of changing a majority for contestant into a minority.

Answer was duly filed by Hooker denying the charges, and testimony
was taken by both parties upon the issues joined.

While the committee have reached the conclusion that upon consid-
eration of the whole evidence, and restating the result so far as the evi-
dence enables us to do so, contestee has remaining a majority of the
votes cast, yet the facts developed in the evidence are such as to require
more than a formal report. The Seventh Congressional district of Mis-
sissippi is composed of the counties of Claiborne, Copiah, Franklin,
Hinds, Jeflerson, Lincoln, Madison, Rankin, and Simpson. According
to the census of 1880 it appears that the population of the district was
179,484, of which 115,823 were colored and 63,632 were white, and that
the adult males were 36,327 ; the colored majority being from 10,000
to 12,000, or not quite 2 to 1. 785

H. Mis. 137 50

786

KERNAGHAN VS. HOOKER.

At the election of 1872, prior to the historic u revolution," in which
was inaugurated what is known as the "shotgun policy" of carrying
elections, the vote in this district for secretary of state was as follows :

Counties.

Repub-
lican.

Demo-
cratic.

Total.

2,238

486

2,724

1,811

1,900

3,711

Franklin

440

530

970

4,011

354

4, 365

1,098

454

2, 152

824

640

1,464

2,601

2,649

],058

1,123

2 181

307

508

815

14, 988

6,043

21, 031

It is the concurrent testimony in this record and in other Mississippi
records examined by the committee that the great mass of colored vot-
ers are Republicans and vote the Republican ticket when they vote at
all. There are in this district a good many white Republicans, espe-
cially in the city of Jackson, the capital of the State. Upon that ques-
tion the Ledger, a Democratic paper published at Tupelo, in this dis-
trict, in its issue of November 15, editorially says :

Their old and flimsy pretext heretofore for being Republicans that they were fear-
ful that they would be put back into slavery was completely exploded by the present
Democratic administration, which has been more friendly to the negroes' interest
than the Republicans ever were. But with all this, the negroes in this State turned
a deaf ear to th-ir best interests and voted for Harrison for President, for the sole
and express purpose of being in opposition to the white people of the south. * * *
There are a few good and true negro Democrats in Mississippi, but a large majority
of them are insolent, turbulent Republicans.

The whole article is printed in the Record, pp. 529, 530.
Judge Lee says :

My opinion is that the negroes, if free to vote, would vote for a Republican against
any Democrat, although there are a small number of them, comparatively, who vote
the Democratic ticket. (Record, page 370.)

He also says :

That there are a considerable number of white Republicans in the district, and that
the negro voters largely outnumber the white.

In the light of recent events it will hardly be claimed anywhere that
any considerable number of negroes in the Seventh district of Missis-
sippi, or, indeed, anywhere in that State, willingly vote the Democratic
ticket. It does not follow, however, that because they are in a majority
in the Seventh district, therefore the result of any election must neces-
sarily be a victory for the Republicans. If, from lack of organizatiou,
failure to register, or indifference as to results, they fail to vote, while
their opponents do not neglect this political duty, the result will neces-
sarily be defeat. It is claimed by coutestee in this case that these were
among the causes of the Republican defeat.

The record discloses that to some extent the Republicans of the Seventh
district were indifferent, that they lacked organization, and that many
of them neglected to see to it tlrat they were properly registered. It is
claimed that this indifference resulted in part from a belief, based on
past experience, that their votes would not be counted even if they did
vote.

KERNAGHAN VS. HOOKER.

787

Charles W. Carraway, a leading planter and a friend of contestee,
testified as follows (Record, pp. 495-497):

Int. 8. When fair elections are held at Dry Grove, what is the usual Democratic
;aud Republican vote at that poll ?

(Objected to as incompetent and irrelevant, for the reason that the answer is made
to depend upon the witness's opinion of what is a fair election, and because a state-
ment of fact of which better evidence exists.)

A. Can not recall but one fair election since I have been a voter, and can only
judge from the registration books, knowing the politics of most of the people. As
fair elections have so seldom been had there, no one could tell what the vote would
be, the majority knowing it icould be useless to go and vote.

(Objected to as incompetent and irrelevent, because, after saying that he does not
know, the witness proceeds to give his opinion of the politics of and alleged majority
that he says does not vote, and because of reference to the registration books, of
which neither the original nor copies are produced.)

Int. 9. Why do they know it to be useless to vote there ?

A. Because the vote is never counted as cast.

(Objected to as incompetent and irrelevent, stating the mere opinion of the wit-
ness.)

Int. 10. What is the number of Republican voters in that precinct!

(Objected to as incompetent and irrelevant, stating the 'mere opinion of the wit-
ness.)

A. Never counted them and could not guess within a hundred, some having left
the county who have since returned, and a good many names having been erased
from the poll-books for that reason, I suppose, but I believe there are over nine hun-
dred registered voters on the books now, and, if they are correct, ninety per cent, are Re-
publicans.

**<>****

X-int. 11. Why did they not provide a substitute for the box, as allowed by law,
and vote?

A. It would have done no good ; the Democrats would have counted it to suit themselves,
or the mules would have eaten the box the following night.

(Objected to as not responsive to the interrogatory.)

X int. 12. Do you know of any other reason T

A. There are few white Republicans there, and unless white men took hold on both
sides, the negroes know it is of no use. I would have insisted on voting, but I believe
the people would have objected and caused some trouble. I was in no way interested,
only to pacify the negroes and keep them from leaving, not knowing the Republican
candidate, and Col. Hooker being a personal friend, and whom I have always supported
for Congress, regarding him as the only Democrat from the State that ever did us any good
at Washington. I mean in recent years.

Judge Lea, who was called on behalf of contestee, in response to a
question asked by contestee's counsel, said (Kecord, p. 370):

A. Such is the belief of a number of the more intelligent Republicans of the State.
The evils which have resulted from what is commonly called negro rule, which have
existed in the past, is the reason assigned by the Democrats in the State as justifying the
lawless measures which have been resorted to for the purpose of preventing negro domina-
tion; to which, 1 will add, 1 am as much opposed as anybody.

The result of the election as declared, together with the adult white
and colored males in the district, is shown in the following table :

Counties.

Adult
white
males.

Adult
colored
males.

Votes
returned
for Ker-
naghau.

Votes
returned
for
Hooker.

799

2 620

602

2 580

2, 812

458

2 269

900

901

203

779

jflinds

2 593

7 166

945

2 215

8;t7

2,559

363

684

1,504

l, i :s9

211

851

1 214

4 o:>(i

343

2 031

1, 3;j9

1,778

509

1,543

847

571

193

755

Total

12, 713

23,612

3,238

11 729

3,238
8,491

788 KERNAGHAN VS. HOOKER.

The total vote for Congressman is seen to be less than 15,000. If
this announced result is a correct exhibit of the vote as cast, and con-
testee was supported only by the whites, he received within 1,000 of
the total white voting strength of the district, while 20,000 negroes
failed to vote, counting the population as in 1880,

But this return does not show the true result of the election. The
commissioner of election in many of the counties of the district did not
have the confidence of the Republicans. When there was a Republi-
can representative on the board he was not the man of their choice,
was not trusted by the party, and in some instances was not regarded
as a Republican. It should be borne in mind that

The election commissioners bold in their hands the entire election machinery of their
counties; they establish and abolish 'election precincts at will; they revise the regis-
tration and poll books, erasing names therefrom as occasion demands ; they sit as a
court to decide appeals from the circuit clerk when complaint is made that registra-
tion is improperly refused ; they appoint all election officers in their counties, including
peace officers to preserve order at the voting places ; they receive, compute, and return
the whole vote of their counties; and to exercise these great powers and delicate trusts
the concurrence of only two of the three commissioners is required. (Buchanan vs.
Manning, Digest Election Cases, 1882-'83, p. 307.)

In the appointment of precinct inspectors of election these commis-
sioners in the main disregarded the law, and either appointed boards
composed entirely of Democrats, or, in apparent compliance with the
statute, appointed one illiterate Republican who was incompetent to
discharge the duties of the office. It is impossible to resist the con-
clusion that these illegal appointments were not made in the interest of
an honest election. It was said in the case of Buchanan vs. Manning,
above cited :

The appointment of the managers of the election, in fairness and common decency,
should be made from opposite political parties. A refusal to do so, in the face of a
statute directing it to be done, may in some cases be evidence of fraud, and it might
form an important link in a chain of circumstances tending to establish a conspiracy.

As showing the unlawful methods resorted to to diminish the Repub-
lican vote, we quote the following from the record.
W. H. Gibbs (Rec., p. 525) testifies as follows :

The meeting (held at Brandon, the home of the contestant, the day before elec-
tion) was addressed by ex-Chief Justice H. F. Simrall. Mr. Kernaghan was present
and presided. He introduced Judge Simrall. The speaker was interrupted in the
progress of his speech by a young lawyer commonly known as "Coote" Wbite, who
eaid that as Judge Simrall had asked the question, "How long these ballot-box out-
rages and intimidations were to continue in this country f" he wanted to answer his
question by saying that they would last just so long as such men as Judge Simrall
went around organizing the negroes and urging them to vote against the white peo-
ple of the country. That is about the substance of what he said, if not the exact
language. Judge Simrall replied that he was not arraying the negroes against the
whites or seeking to do so. He proceeded then to finish his speech, and had about con-
cluded when he was again interrupted by another gentleman, Mr. Pat Henry, another
lawyer, who asked Judge Simrall some question, which I don't now recollect, to
which Judge Simrall replied very courteously, as I thought, but which Mr. Henry
said was not an answer to the question he had asked, and then said that " we don't
propose that this crowd shall leave this house till they have heard our side of the
question. Upon this a crowd in the northeast corner of the court-house, probably
fifteen or twenty, commenced to get upon the desk and shout, " Close the doors!"
Several pistols were drawn, and "Coote" White presented a pistol at Mr. Kerna-
gban. Some of the crowd attempted to leave the building, but were prevented by
the doors being closed and guards placed there to keep them in. "Coote" White
then went up into the stand and commenced to try to make a speech. The noise and
confusion was so great that he couldn't be heard until the sheriff was sent for, who
came up, and after some time succeeded in restoring order. White then proceeded
with his speech, in which he said that they had carried the elections by force in times
past and they would do it again this time. The balance of his speech didn't amount
to very much. He only spoke a few minutes. The doors were then opened aud the
crowd allowed to depart.

KERNAGHAN vs. HOOKER. 789

This testimony is corroborated by other witnesses; and "Coote"
White, who was one of coutestee's attorneys in taking testimony, was
not put on the stand.

R. H. Truly, a lawyer and independent Democrat, testifies as follows :
(Red. p. 480.)

Int. 1. State your name, age, residence, and occupation. Ans. R. H. Truly ; 55
years; Fayette, Jefferson Co., Mies.; lawyer.

Int. 2. If you were present at Fayette on the Tuesday preceding the Congressional
election of 18-s8, state what you may know of any arrangement for a Republican
meeting there on that day, and of any interference with any Republicans ; state
fully all you know of what happened there that day. Ans. Yes, I was present; Mr.
Kernaghan had given notice through the public prints and through posters that he
would address the citizens of Jefferson County on that day at Fayette ; Mr. Kerua-
ghan came to town in a buggy with a colored man named Jones, from Claiborne
County, I believe ; four or five gentlemen, Democrats, waited on Jones and told him
if he had any business of more importance anywhere else than there, that he had
better get away ; I went to those gentlemen, all being friends of mine, and asked
them what they meant ; they told me at first that Jones was there with the Republi-
can tickets, to distribute it, and that they wanted him to leave; I told them that
that was all foolishness; that there were hundreds of negroes there who could dis-
tribute their tickets as well as Jones, and that their actions were liable to injure
Col. Hooker's cause ; they then said that he was a rascal and a very disreputable
character; I asked them if they knew him, and they said no, but that Mr. Spencer
had told them so.

(The foregoing answer objected to as incompetent and irrelevant, constituting no
evidence pertinent to the issue involved in this contest and in no wise showing that
any fraud or intimidation occurred at the election in question.)

Inter. 2. State what you may know on information as to what the said Jones did
after having been so notified:

(Objected to as irrelevant to the issue involved, and because the question calls for
hearsay. )

Ans. I was told that Jones became very much frightened and immediately went to
the depot to take the train to leave; there being no train, he walked out to Harris-
ton, and that he burned the Republican tickets he had in his possession.

(Answer objected to as mere hearsay.)

Int. 3. If you were present at Fayette on election day, November 6, 1888, state
whether or no there were any colored voters iu attendance there; and if so, how
many, and whether they voted or not; and if not, why not.

(Objected to as incompetent and irrelevant, as in no wise affecting the issue in-
volved in this coutets.)

Ans. I was present on that day : there was a considerable number of colored voters
in attendance; I presume about HOO, possibly more; out of that number there were,
I think, three that voted the Democratic ticket; none of the others voted; there
were no Republican tickets at that box is the reason, I presume, why they all didn't
vote.

(Answer objected to as stating mere conclusion of the witness as to why the per-
sons mentioned did not vote.)

Int. 4. Were the said voters who did not vote on said day solicited to vote the
Democratic ticket; and if so, with what success,

(Objected to as incompetent, because the solicitation of votes is incidental to all
elections, and the result of such solicitation upon those not voting being in no wise
prejudicial to the result attained by those who do vote.)

Ans. Yes ; there was a great deal of electioneering with the colored voters by the
Democrats, and three of them voted the Democratic ticket.

Int. 5. To what political party do you belong? Ans. I have always voted the
Democratic ticket, but have been very independent in my views, and when the Dem-
ocratic party's nominee didn't suit my views I didn't vote for either side; I have always
voted for Col. Hooker, and warmly supported him, both against Maj. Barksdale and
Mr. Kernaghan.

The testimony of'Mr. Truly not only shows that the Republicans in
Jefferson County did not have an opportunity to vote, because tickets
were not distributed there, but it shows the Republicanism of the
colored voters; that out of 300 present at Fayette, only 3 could be per-
suaded to vote the Democratic ticket, and the remainder refused to
vote because there were no Republican tickets.

790 KERNAGHAN VS. HOOKER.

We also quote the testimony of E. W. Joues (Record, page 477).

Interrogatory 1. State your name, age, residence, and occupation. Answer. E. W.
Joues; 40 years; Jackson, Miss.; I have farming interests in Claiborne County.

Inl, 2. How long have you resided at Jackson, Miss., and where was your residence
before you came to Jackson T Ans. I have resided in Jackson about 10 or 12 months ;
I formerly lived at Port Gibson, Miss. ; was born and raised there.

Int. 3. If you were present at the town of Fayette, Miss., a few days previous to
the election of 1888, state with whom you went there, for what purpose you went
there, and all that happened to yon there that day. Ans. I was at Fayette, Miss., a
few days before the election; I went there in company with Mr. H. Kernaghan; we
arrived at Fayette about 12 or 1 o'clock; a short time after our arrival a crowd of
men, eight or ten in number, all white, came to Mike Howard's office ; Mr. Kerua-
glian, myself, and Lewis Robinson, chairman of the Republican committee of Jeffer-
son County, were in the office in consultation as to the best time to have our speak-
ing at that point. We had gone there for the purpose of having a Republican meet-
ing on that day. One of the crowd of men that came to the office spoke in a loud
tone of voice, and said, "Come out here!" I was sitting near the door, and asked
him, "Who?" "You, by God!" was the answer. I went out on the sidewalk and
there found 10 or twelve men. They asked me what I wanted there ; I told them I
had come to accompany Mr. Kernaghau, at his request; they told me that I should
leave that town on the first train, or they would make it red-hot for me; I asked
what I had done, whether I was disturbing anybody or not. Several of the crowd
spoke almost at once, and said, "By God, we don't care to debate it with you at all."
At that time Mr. Keruaghan came to the door and said to the crowd, "Don't disturb
this man ; I brought him her> ; I am the one if you want to disturb anybody, and
not him." The reply was, " We are not going to have any Radical speaking here by
anybody." Some one in the crowd said, "We propose to manage our own affairs,"
or words to that effect. I then went back into Mike Howard's office ; Mr. Kernaghan
went out, and said to me to stay there a few minutes till he came back ; I went to
the door a few seconds afterwards, the crowd of men having returned to the hotel,
some 20 or 30 steps off.

I saw Col. Chas. E. Hooker sitting in a chair on the sidewalk at the hotel ; these
gentlemen were all standing around him ; 1 came out of the office and started to go
tip to where he was ; Lewis Robinson, the chairman of the committee, told me I had
better not go up there, that I would get into trouble; I thought he knew best, and
didn't go ; I then sent a messenger to Mr. R. H. Truly, asking him not to let them
interfere with me if he could help it ; he sent me a message that he would do all in
his power to see that I wasn't disturbed. Mr. Kernaghan returned in a short wnile,
and said we would have to abandon the meeting ; Mr. Lewis Robinson, chairman of
the committee, agreed with us that we could not hold a meeting there. A short time
afterwards a messenger came in and notified me that it had been asserted on the
streets by white men that I had in my possession Republican tickets, and that was
why they were after me. I will state that I had 2,000 Republican tickets for the
Fayette box. I then went to the depot alone and on foot ; I tried to get somebody
to accompany me there, as I felt uneasy. When we first reached Fayette that day
there were two or three hundred colored people in the street; in twenty minutes
after the excitement I couldn't lind a colored man to go to the depot with me ; I met
a friend while en route to the depot who advised me not to be caught with the tick-
ets ; I went to the residence of J. D. Weston, south of the depot; I had the tickets
in my valise ; I took them out and put them in the fire and burnt them up ; the train
came a short time afterwards and I got on it and went to Harristou ; some of the
same crowd who had ordered me from Fayette were at Harriston, and followed me
around the depot and every other place that I went arouud there ; commenced abus-
ing me by cursing me, etc.; I tried to remonstrate with them by telling them I hadn't
disturbed anybody; I met a white friend of mine there and appealed to him to go
aboard of the train with me, and he did so ; I there took the train and went through
to Vicksburg.

(Objected to as incompetent and irrelevant, for the reason that the events related
occurred some time prior to the election, and were not in themselves of the character
to affect its validity.)

Int. 4. Who was this white friend who protected you at Harriston T Ans. M. R.
Jones, of Carlisle, Miss.

Int. 5. Was the crowd who attacked you in Fayette quiet and peaceable in their
behaviour, or boisterous and angry ? Ans. They were apparently angry, using curse-
words for almost every expression.

Int. 6. Were matters at that time on the streets of Fayette quiet or excited f
Ans. Up to the time%the crowd came to the office they were quiet. The moment I
came to the door the negroes seemed to understand it and commenced squatting and
dodging.

KERNAGHAN VS. HOOKER. 791

Int. 7. Yon have said that when you first went there there was a largo number of
colored people in the town, and that after this attack OH you you could not find a
colored man to go to the depot with you ; what become of them ? Ans. They lei- the
streets ; I could not tell where they went.

Int. 8. Was there any noise, or disturbance, or shooting, or fast riding on the
streets of Fayette that day ?

(Objected to as leading and incompetent.)

Ans. I heard no shooting or fast riding, and know of no disturbance except that
already told about.

Int. 9. At the time you came to the door of the office, when the crowd was stand-
ing on the sidewalk cursing, as yon have described, was Col. Hooker then sitting on
the sidewalk, at the place you have stated t

(Objected to as leading and incompetent.)

Ans. I don't think he was at that immediate time, but he was a few minutes after-
wards, but he was sitting there, though, when the crowd went back.

Int. 10. You have stated that, up to a few months since, your home has been in
Ulaiborne County. Were you in Claiborne County at any time previous to election
day in 1888; if so, when and at what places? Ans. I was at Port Gibson on the
29th of October, and attended a Republican meeting there that day.

Int. 11. Are you well acquainted with the colored people of Claiborne Countv?
Ans. I am ; know almost the name of every man in the county.

Int. 12. What is the politics of the colored voters of that county T

(Objected to as incompetent and irrelevant, because it asks about the politics
of the colored people in general, and this contest relates to a particular election,
and because it calls for mere matter of opinion.)

Aus. Republican ; and they vote the Republican ticket almost to a man.

Int. 13. State, if you can, what party has the majority of votes in Claiborne
County when the elections are fairly held, and what its majority is in said county.

(Objected to as calling for mere matter of opinion, and because it is immaterial in
contesting this particular election.)

Ans. The Republican party has a majority of 2,500 or 3,000; and it always went
that way in fair elections.

Int. 14. What is the registered vote of Claiborne County, and what part of it is
white and what colored ?

(Objectk-d to as incompetent and irrelevant, the registration books, or copies thereof,
being the best evidence, and because the number of registered voters, as shown by
the registration books, is no evidence of the number of votes actually cast, nor the
candidate who received them.)

Ans. The registered vote is about 2,000 properly, about 700 of whom are white and
the others colored. Only about half the voters are registered.

(Objected to because the witness assails in general terms the correctness of an offi-
cial record prepared by competent authority under the laws of this State, without
producing the records or a copy thereof, and without showing that any person en-
titled to registration has ever been refused.)

Int. 15. State why such a large part of the voters are not registered in said county,
and how long such has been the condition of the registration there.

( Jbjected to as incompetent and irrelevant, as calling for mere matter of opinion
about facts not affecting the validity of this particular election.)

Ans. It is because of the general methods of the Democrats of Claiborne County in
carrying elections, no matter which way the votes are cast, that a large portion of
the Republicans have refrained from registering on that account.

Int. 16. Have they had a new registration in Claiborne County of late years, and
if so, in what year was it, or is the county using its old, original registration books?

(Objected to as incompetent and irrelevant, because neither of said books or copies
thereof are introduced, and because the witness is in no way connected with said
books, as custodian or otherwise.)

Ans. They have had a new registration in 1886 or 1887.

(Answer objected to because the fact that the county is using new registration
books in no way affects the validity of the election in question.)

Int. 17. Did the Republican voters of Claiborne County generally vote in the last
election, that of November, 1888, and if not, why not?

(Objected to as incompetent and irrelevant, because the mere failure of persons to
vote does not prejudice an election, no matter what their politics is, and because the
question calls for mere matter of opinion.)

Ans. They did not vote, but very few, at this last election. It was because the Re-
publican executive committee had asked to have a county commissioner appointed
and was refused. One Henry Weekly was appointed against their protest. It was
then decided by the committee that we would have no show, that we would have no
commissioner to look a/ter our interests. I was at that time and still am a member
of the committee, and recommended A. M. Addison as commissioner, but they refused
to appoint him.

792 KERNAGHAN VS. HOOKER.

Int. 18. Who was this Henry Weekly, and what was his political status, and by
whom was he nominated as the Republican county commissioner ?

(Objected to as incompetent and irrelevant, the matter of the appointment of the
election commissioners being a matter confided to the discretion of u State board that
is in no way bound by outside nominations, suggestions, or interference.)

Ans. He is a colored man who has been always known to be a man used by the
Democrats of Claiborne County, and who voted the Democratic ticket. I do not know
by whom he was nominated, but not by the Republican executive committee, or any
member of it, as far as I know.

Int. 19. What is his business, and can he read and write well? Aus. He is a car-
penter by trade, and can scarcely write his name ; I don't know that he can read at
all.

Int. 20. Can he read writing or only print ? Ans. My impression is that he can not
read writing, as he has scarcely any qualifications at all.

Cross-examined :

X Int. 1. What is the nature of your farming interests in Claiborne County ? Ans.
My mother lives there and has farming interests, and I assist her, and am interested
with her.

X Int. 2. Have yon no other occupation ? Ans. I have; lam engaged in selling
lauds, and have an intelligence office here.

X Int. 3. What is the nature of the intelligence office? Ans. Furnishing labor to
planters and others.

X Int. 4. What time in the day did Mr. Kernaghan tell you at Fayette that there
would be no speaking ? Ans. It was probably as late as three o'clock in the evening
or afterwards.

X Int. 5. How long was that before or after the party told you to leave ? Ans.
The party had told me to leave at least an hour before that time.

X Int. 6. How long was it after Kernaghan told you there would be no speaking
before you left on the train for Harriston f Ans. About an hour.

X Int. 7. Who was the person who came and told you that you had been disturbed
because you had Republican tickets for distribution ? Ans. His name I do not know ;
he was a colored man.

X Int. 8. Was he a Democrat or a Republican ? Ans. I couldn't say.

X Int. 9. Had you shown the tickets to anyone that day? Aus. I had only shown
them to the chairman of the Republican executive committee, Lewis Robinson ; a
few others, whose names I don't know, were present when I showed them.

X Int. 10. Was any one present when you burnt them ? Ans. There was, Mrs. J.
D. Weston.

X Int. 11. Had Col. Hooker spoken when you left Fayette, and if so, did you hear
him? Ans. I was informed that he was speaking when we reached Fayette; I did
not hear him.

X Int. 12. What time did you reach Fayette ? Ans. Between 12 and 1 o'clock.

X Int. 13. Why did you not distribute the tickets during the several hours that
elapsed before the men disturbed you ? Aus. It was because my intention to give
them to Lewis Robinson, and he absolutely refused to take them, and said he wouldn't
be caught with them for anything.

(So much of the answer as states what Lewis Robinson said objected to.)

X Int. 14. Were there no other persons there you could have left them with ?
Ans. I saw no one else except Mike Howard, whom 1 met en route to the depot, and
he refused to take them.

X Int. 15. Had you asked either Lewis Robinson, Mike Howard, or any one else to
take them before the men waited on you? Ans. I had told Robinson I had them,
but did not offer them to him until I was about to start off. I did not offer them to
any one else, except Howard, while going to the depot.

X. Int. 16. Did you know the men who disturbed you at Fayette ? Ans. I only
knew one man in the crowd.

X Int. 17. Were any of the Harriston people in Fayette that day ? Ans. I couldn't
Bay.

X. Int. 18. Did the people that you saw at Fayette and afterwards at Harriston go
out on the same train with you ? Ana. Two of them did.

X Int. 19. Did not they live at Harristou or in the neighborhood? Ans. My im-
pression is that one of them lived at, Red Lick, but I don't think the other did.

X Int. 20. Did General Hooker come out to Harristou on the same train with
you ? Ans. I don't think he did; I didn't see him.

X Int. 21. When did you first see the men who disturbed you in Fayette * Ans.
They came up in a body in front of Mike Howard's door about half an hour after I
reached Fayette.

X Int. 22. Had you seen them at all before you went to the door of the office to
meet them ? Ans. I had not.

KERNAGHAN VS. HOOKER. 793

X Int. 23. Have you not related here this morning an incident that occurred dur-
ing tbe present winter, in which a white planter, a Democrat, and socially and polit-
ically prominent, who had gone to Jefferson County to procure hands for his planta-
tion in another county, was waited upon by residents of Jefferson County and told
to leave ? Ans. I was informed that such an incident occurred, and told it here this
morning.

X Int. 24. Was not Mr. Kernaghan invited to divide time with Colonel Hooker at
Fayette that day ? Ans. I don't know that he was ; Mr. Kemaghan has told me so
since.

X Int. 25. Was not the meeting that Colonel Hooker addressed a general public
meeting, at which persons of both parties and races were present? Ans. I couldn't
say ; 1 was not present at any time during the speaking.

E. W. JONES.

We also quote the testimony of J. W. Cain:

Int. 1. State your name, age, residence, and occupation. Ans. J. W. Cain; 23 years;
Jackson, Miss.; am on the police force of the city.

Int. 2. If you were present at a Democratic meeting held in the capitol on the night
of the 5th of November, 1883, being the night before the election, state what arrange-
ments or agreements were made there, or after said meeting, by the parties there assem-
bled, in regard to the firing of cannon, and how the same was afterwards carried out.
Aiis. It was proposed that we were to fire the cannon early next morning, and some
of the boys proposed to carry it through "Nigger Town" that night. They fired
it out there perhaps a dozen times or more ; stopped in some places and fifed it in front
of the houses. They stopped once in front of the colored hall, where they were holding
some sort of a meeting, and the reason they didn't fire it there was that it was in front
of a house where a woman was about to die, and some one came out and begged us not
to shoot. We went to West Jackson then, and stopped in front of the lunch stand, and
then came back to the capitol.

Int. 3. Were there many or few people went with the cannon, and how did they act
and what did they do and say ? Ans. There were about 12 or 15 went with it. Some
made the remark that it would he a good thing to carry it out there to bluff the negroes
and keep them away from the polls.

lot. 4. Were they noisy or quiet in their travels with the cannon f

(.Objection by contestee's counsel that the question is leading.)

Ans. They were very noisy.

Int. 5. If they used any threatening language while passing through the colored
neighborhood, state what it was.

(Objection by contestee's counsel that the question is leading, and assumes the ex-
istence of a state of facts about which there has been no proof.)

Ans. Some said: "You damned black sons of bitches, you wouldn't come to the
door to see what this cannon was being fired for if you knew the effect they were
trying to have on you," and, " You had better not come to the polls."

Int. 6. If you know of any act of intimidation or violence committed in Jackson
on that night, state the same fully. Ans. That night, I suppose it was about 11 or
12 o'clock, after the meeting adjourned, I was in company with some gentlemen,
Mr. Walt. Heudricks was one of them, Mr. Horace Perry was another, and walking
on the V. and M. Railroad towards West Jackson. There is a house near the rail-
road belongs to Mrs. Spengler. There were some men there bursting in the door and
cursing the niggers, telling them the damned sons of bitches had better keep away
from the polls, if they didn't that every one of them would be killed, or language to
that effect. They had some straps beating on the side of the house and said they
wanted one of them out of that. Said they wanted Thornton Reynolds out of there.
The men had handkerchiefs over their faces ; they were masked. Some of them
from the inside answered that the " nigger" was not in there. Then they commenced
to burst in the window lights. After that they commenced a shooting. About 20
shots were fired into the house at least that. The crowd dispersed after that. We
started on towards West Jackson, and heard several shots in different portions of the
the town. We then changed our minds not to go to West Jackson and came back
up town.

Int. 7. Of what ward are you a voter? Ans. Of the South ward.

Int. 8. If you were present when the polls were opened in that ward on the 6th day
of November last, state what time of day they were opened. Ans. About half past ten
or eleven o'clock.

Int. 9. Were you about the polls at nine o'clock that morning and from that till the
polls were opened T Ans. Yes, sir.

Int. 10. What was the reason that the polls were not opened sooner? Ans. The rea-
son was that there was a gentleman's name on the ticket spelled wrong. His name
was " Candler " and they had it " Chandler."

794 KERNAGHAN VS. HOOKER.

Int. 10. On which ticket was this, and how did that delay the election ? Ans. Dem-
ocratic ticket ; had to wait till they could print some new tickets.

Int. 11. What number of people assembled at the polls between the hours of nine
and eleven o'clock, before the polls were opened? Ans. There were a good many
came there and went away; don't know the exact nnmber.

Int. 12. Were those people who so came and went away Republicans or Demo-
crats? Ans. Most of them were negroes; I couldn't say; most every negro is aRepub-
lican, especially in Presidential elections.

Int. 13. If you know of any bogus Republican tickets being brought to those polls
that day, state fully what instructions were given in regard to them, and by whom
the instructions were given, and who brought them there. Ans. Mr. R. H. Henry
brought them there. He brought the ones he gave to me. He had a big roll of them ;
he said they were bogus tickets; I think that's all he said. I commenced dishing
them out, swapping tickets with the negroes. I gave some of them to Jim Hardy,
and I gave one or two to Col. Hamilton. Mr. Joe White took some of the tickets from
negroes to whom I had given them and said he was going off to measure them. I
told Mr. Henry and he said, keep quiet say nothing about them.

Int. 14. If you know anything of any conspiracy or proposed plan on foot on the
night before the election to commit any violence on the person of any Republican or
Republicans here, state who it was that proposed it and all about it. Ans. I don't
know of any that night.

Int. 15. Do you know of any such plan or proposition on foot just before said elec-
tion! Ans. Mr. L. F. Chiles said that he and Gen. Win. Henry bad been talking, and
said it would be a good idea to take Charlie Morgan down in the swamp and tie him
to a tree till after the election, as he was a leader among the negroes, and put some-
body to watch him.

Int. 16. Were any propositions made by him or any one else for you and your friends
to carry out this plan ? Aus. Yes, sir.

Int. 17. Who made such proposition ? Ans. Mr. L. F. Chiles.

Int. 18. What offices, if any, did Mr. Chiles hold at that time and now ? Ans. He
was a deputy sheriff and alderman of the city of Jackson, and holds both of those
offices.

Int. 19. To what political party do you belong? Ans. I am a Democrat ; Ihave al-
ways been, and have never voted anything but a Democratic ticket.

And on cross-examination :

X Inter. 90. Give us the name, dimensions, carriage, and history of the cannon used
on that occasion. Ans. She is named "Little Moses;" size a little over two feet
long ; bore about 2^- inches in diameter ; rigged on the wheels of a sulky plow ; don't
know its history; it is generally fired about election day, to let 'em know we are
going to have a fair election and to announce meetings of the Democratic club.
*******
Re-examined:

Int. 1. To whom does this cannon, "Little Moses," belong? Ans. To a party of
four L. F. Chiles, A. G. Lewis, and A. J. Davis. I don't know who the other one
is ; may be Tuck Holland.

Int. 2. If Mr. Chiles holds any offices, state what they are. Ans. Deputy sheriff
of Hinds County, alderman of the city of Jackson, and secretary of the Mississippi
State Fair Association.

Int. 3. If Mr. Lewis holds any office, state what that is. Ans. Treasurer of Hinds
County.

Int. 4. If Mr. Holland holds any office, state what that is. Ans. I don't know
whether he holds any office.

Int. 5. Where is Holland now ? Ans. In Salt Lake City, Utah.

Int. 6. Does he not hold some position under the Government there ? Ans. Not
that I know of.

Int. 7. In your progress with the cannon, "Little Moses," that night, did you go
up into the North ward and fire the same before the doors of any Democrats ? Ans.
We did not.

Int. 8. Why didn't you do so? Ans. We knew the cannon wouldn't have any effect
on white men.

Int. 9. Did you go up there and do any cursing, swearing, and hallooing before
the doors of any white Democrats? Ann. We did not.

Int. 10. Why didn't you? Ans. We didn't think it was necessary.

Int. 11. Did you then think it was necessary to go into the colored parts of the city
and tire the cannon, and curse and swear, and halloo before the doors of the people
there? Ans. I did ; to keep them away from the polls.

Int. 12. You have stated in your cross-examination that you are a policeman of the
city of Jackson, and that while off duty the night before the election, you saw certain

KERNAGHAN VS. HOOKER. 795

disorderly proceedings and did not interfere; was not the principal reason of your non-
interference at that time because of a general understanding among Democratic city
and county officials in this city and county, that at ard just before election times
Democrats are privileged to commit almost any acts they please, no matter how out-
rageous or disorderly, which may tend to intimidate Republican votes from the polls.
Was this not the real reason why you did not interfere? Ans. Yes ; it was.

Int. 13. Is it not a fact that the grand juries in this county never indict anybody
for outrages committed at and just before election times? Ans. I never heard of
them doing it.

Int. 14. Do they ever indict any one for frauds on the ballot-box of this county T
Ans. I never heard of any.

The witness here expressed a desire to make a correction in his answer to interroga-
tory 12, last above given, and proceeding said: " I do not believe that every sort of
outrage would be tolerated, but I believe that so far as intimidating niggers is con-
cerned, that would be winked at by the officers of the law."

To what extent the frauds above recounted affected the result, it
is impossible to ascertain from the evidence. It is evident, however,
from the testimony of Cain, that there could be no such thing as a fair
election in the city of Jackson. It is also evident from the testimony
of Truly and Jones that contestant lost several hundred votes at Fay-
ette because the conditions there were such that his tickets could not
be distributed. The declarations of u Coote " White show a willing-
ness at Brandon to resort to any methods to defeat the will of the
people.

CLAIBORNE COUNTY.

In Claiborne County no Republican tickets were distributed and no
Republican votes were cast anywhere in the county, except at Port
Gibson, where 13 votes are returned for contestant, and exactly 13 col-
ored voters are marked " voted " on the poll book. In the whole county
there were but 722 registered white voters. Contestee was returned 602
votes, of which only 48 are claimed to have been cast by colored men.
The concurrent testimony of a large number of witnesses is that there
was very great indifference among both white and colored in this county
in regard to the election and that many of both races remained away
from the polls. Notwithstanding this indifference, if the returns are
true, contestee got nearly 80 per cent, of the registered white vote, a
suspicious showing when taken in connection with the evidence. But
it is a significant fact that if these returns are correct only 48 colored
men could be persuaded to vote for contestee in a county where no Re-
publican tickets were to be had.

In district No. 2, 15 colored voters are marked "voted." It is in
evidence that just 15 colored men, all Republicans, appeared at the
polls, but none of them voted because there were no Republican tickets.
The now famous process of counting persons "present and not voting"
seems to have been anticipated and somewhat advanced upon in this
precinct.

COPIAH COUNTY.

In Copiah County there were counted for contestee 2,269 votes, and
for contestant 458 votes. In the following-named precincts the returns
have been proved to be fraudulent by calling the individual voters, viz.:
Heath's store, Crystal Springs icest, Crystal Springs east, Hopewell, Brow-
er's store. Mount Hope, Green's store, and Rockport. For example, at
Heath's store 52 witnesses testify that they voted for contestant; only 11
were returned for him.

Other evidence shows that many others in addition to these 52 voted
for contestant. At Rockport 9 witnesses testify that they voted for

796 KERNAGHAN VS. HOOKER.

contestant; none were returned for him. Those who testified were only
a portion of those who cast Republican votes at this precinct. In
nearly every precinct of this county the election boards were composed
entirely of Democrats.

There are 22 precincts in Copiah County; the returns in Bare conclu-
sively proved to have been fraudulent; suspicion attaches to the others,
but, in the absence of evidence sufficient to overturn the prima facie cor-
rectness of the returns, we do not disturb the count in them. Elimi-
nating the fraudulent returns and restating the vote of Copiah County,
so far as the evidence enables us to do so, we find the majority for con-
testee in this county reduced from 1,811 to 808.

HINDS COUNTY.

The official returns from Hinds County give contestee 2,215 votes,
and contestant 945 votes. In this county the colored vote outnumbers
the white vote nearly three to one. The testimony of Cain, already
quoted, shows the means used to prevent a fair election in the city of
Jackson, the capital of the State. Frauds are proved to have been
committed in other precincts in this county, as follows : At Liberty
Grove, 19 more votes were in the box than there were names on the
poll list. The whole vote was counted, and both United States super-
visors joined in a report that the return was fraudulent. This was ft
large Republican precinct, and the fact that the returns showed a
Democratic vote in excess of the Democratic voters of the precinct,
shows that these extra votes counted were Democratic.

At Bolton precinct a comparison of the poll book with the registra-
tion book shows that 74 names in the poll book had been changed, thus
resulting in the disfranehisement of 74 duly registered voters.

In Utica precinct 368 votes were returned for contestee and none for
contestant. Reuben Adams was appointed United States supervisor.
His commission was forwarded to him by mail and arrived at his post-
office on the 31st day of October, as shown by the postmark on the
envelope produced in evidence. He called at the post-office twice dur-
ing the week preceding the election and received letters, but his com-
mission was not delivered to him until the 17th of November. The
check marks on the poll book show that only 266 persons voted, though
contestee is generously returned as having received 3G8 votes.

At Auburn box 223 votes are returned for contestee and none for
contestant. Fifty-three persons only are marked on the poll list as
" voted" at this precinct. Similar fraud is shown at the Cayuga box.

At the Raymond box contestee was credited with 198 votes and con-
testant with 70, yet one of the inspectors of the election testifies that
the number of whites who voted was only slightly greater than the
number of colored. The Republican vote greatly exceeds the Demo-
cratic in this precinct, but either through a feeling that it was unsafe,
owing to past practices, or for some other reason not disclosed, a com-
paratively small number of the COO colored voters in this precinct cast
their ballots.

At Dry Grove no election was held. There were present at the poll-
ing place about 400 Republicans and 50 Democrats. A Republican
United States supervisor was present. Charles W. Carraway, whose
testimony has already been referred to, gives the reason for not holding
an election ; he says : " I did not ask the reason why, but it is well known
the Democratic party desired no election held there, as the box, on a
fair count, is overwhelmingly Republican."

KERNAGHAN VS. HOOKER. 797

Jackson, north ward. In the north ward of the city of Jackson the
man appointed as Republican inspector voted the Democratic ticket.
The ballot box was removed from the polling place before counting,
and then counted in secret.

Jackson, south ward. In the south ward Republican tickets prepared
by the Democrats, not in conformity to the requirements of the law,
were distributed.

MADISON COUNTY.

Canton, west ward. In the west ward, precinct of Canton, 531 votes
were returned for contestee and 17 for contestant. This return has
been proved to be fraudulent by calling the individual voters, and
should be rejected. In addition to the individual voters who testified, and
conclusively proved the falsity of the return, from 300 to 400 Republi-
can voters entered the polling place to vote. The method of voting in
this ward and the arrangements for receiving ballots tend to the con-
viction that fraud was deliberately planned. The poll list of the ward
was refused to contestant.

Canton, east ward. At the east ward in Canton, 368 votes were
returned for contestee and 10 for cont( stant. The election was held up-
stairs, and Republicans were prevented from going up to vote unless
they would take Democratic tickets. On the night previous to the elec-
tion a crowd of roughs broke into the house of a Republican voter and
terrorized him, so that he kept away from the polls. A number of
railroad men, not residents of the district and not registered, voted the
Democratic ticket, the inspectors deciding that they had the right to
vote for President and member of Congress anywhere in the State.

In Camden precinct, where the evidence indicates that twice as many
Republicans as Democrats voted, the ballot box was carried away from
the polls at dinner time, and when the count was made it showed 68
Democratic majority.

At Sulphur Springs precinct the ballot box was carried off, and kept
away about 2 hours against the protest of the United States super-
visor. The evidence tends to show that more Republicans than Dem-
ocrats voted at this precinct, yet the returns give contestee 124 and
contestant 32. In this county the action of the majority of the election
commissioners in the selection of precinct inspectors was a violation of
the letter and spirit of the law, and, to say the least, showed a willing-
ness to prepare the way for fraudulent returns.

BANKIN COUNTY.

At Steen's Creek precinct, Rankin County, 230 votes were returned
for contestee and 63 for contestant. The testimony of T. J. Cooper,
United States supervisor, shows that the ballot box was taken from the
polling place against his protest, both at noon and in the evening after
the close of the election and before the commencement of the count.
When the counting commenced, one of the inspectors took a lot of Re-
publican tickets from the box and put them into his pocket.

Threats were freely made against the supervisor, and he was induced
to leave the polling place and go home before the count was completed.
Sometime during the night a gang of men went to his house and in-
duced him by threats to sign a return corresponding to the return made
by the inspectors. One of them said to him, "-We'll outswear you if
you should live to make your report, but you can't live to make it."

798 KERNAGHAN VS. HOOKER.

This supervisor followed the box when it was taken from the polling
place, and seemed determined to discharge his whole duty, but while it
was being carried from the polling place and back again, after supper,
it was dark, and the box was kept out of his sight. If this witness is
to be believed, of course there is no validity to the return from this pre-
cinct. It further appears that a large number voted at this precinct
who were not registered.

At Brandon precinct the United States supervisor was ejected from
the polls. He appealed to the governor of the State, who was present,
and the governor advised him, against the plain letter of the statute,
that he could only stay outside to aid in keeping the peace. In this
precinct Mr. Pickett, one of the Democratic inspectors, carried oif the
ballot box both at dinner and supper time. The count was not com-
pleted that night, and this same Mr. Pickett took the box away and
said he would sleep with it. The polling place was upstairs, and the
colored people were let in at the front door very slowly, while the white
voters were let in at the back door and had no difficulty in voting.
Pickett is shown to have had both the disposition and the oppoitunity
to subvert a fair election. Inspector McBeth testified that the colored
vote seemed to be more solid that day than usual. The returns for the
precinct gave contestee 244 and contestant 101.

Pisgah. The conduct of Democrats at Pisgah precinct is best shown
by quoting the testimony of some of the witnesses.

Henry Turnage (pp. 261-262) testified :

When I got there Mr. Miller and Mr. Ed. Davis coine and met us and asked us if
we come to vote. I told him yes, and he asked me did I have a ticket, and I told him
yes, sir. He asked me to let him see it, and I give it to him, and he told me that
wasn't the ticket to vote, and I asked him why, and he went on to tell me, and he
said he would give me a ticket to vote, and I told him I didn't want his, and he said
he didn't want mine. He asked me would I vote the ticket he give me. I told him
"no, sir." He said, " If you don't vote this one you won't vote any.' 7 I told him all
right ; there was a heap of men there that wasn't voting, and I reckon I could do
without too. He said, "All right; if you, vote this ticket, you can vote, and if you don't,
God damn you, can't rote narry one." I said "all right," and walked oft' from him. I
went on 'round to the wagon where there was some fellows talking, and left him. I
don't know where he went or what he done after that. My father come to me and
told me to less go home. I told him, "No, sir; I am going to stay here a while longer;
/ think I tvill vote directly." Mr. Davis walked up and said : " No, you won't here to-day
unless you take this ticket and some white man side of you, and walk up with you and put it
in for you." I said: "No, sir; I won'tdothat ;" and he said," You had just as well go
home, then ; before you or any other God damn nigger shall go up there and vote, unless he
vote this ticket he will icalk in blood knee-deep." I told him all right and walked off and
got on my horse and went home.

A. G. McKoy testified (p. 263):

I issued until I saw things were getting brash ; then I thought, from the appearance
I saw, and actions, it would be better for me to stop; I heard several remark that
those tickets icere going to cause hell here.

Wiley Boyd (pp. 269-270) testified:

I went up to the polls to vote and they said I couldn't vote there; said no nigger
couldn't vote except they would bring a white man with him ; said we had to vote their
way ; that this was their country and they were going to rule it. Nat Polk and Will
Buckner ; Nat Polk had a stick and Will Buckner had a biickbat. They stood up to
the dead-line and said no nigger couldn't cross the dead-line unless he carried a white
man in with him. And George Deuson he took me off behind the church and asked
me what ticket I was going vote, and I told him I was going to vote the Republican
ticket; and he asks me to let him scratch it, and I told him no, I didn't vote a
scratched ticket. He said then, " By God, we have been begging you all to vote with us,
and if you don't vote with us to-day we are going to make you vote with us." And
about that time Joe Boyd was standing off in the road talking to Van Thornton, and
he hollowed then, "This is our country, by God, and we are going to rule it." Then
the crowds all broke to him, and about 20 or 30 was standing waiting to vote, and

KERNAGHAN VS. HOOKER. 799

they got in behind them and told them to get out and leave there, and got in "before them
and they were in behind them, and Geo. Denson shot off his pistol and made them leave,
and Will Bnckner pulled oft' his coat, and several more others, and said not another
nigger should vote there that day. And saw Will Buckner take a double-baTel shotgun
out of the hind part of a buggy and turn it around and cover it up, and I heard Mr.
Andrews and Nat Polk say before any other nigger voted there tliey would wade in blood
knee- deep.

At Shiloh, where the return shows 106 for contestee, and 20 for con-
testant, the ballot-box was carried away from the polling place, and
kept away nearly two hours.

Irregularities of a similar character took place in other precincts of
this county. Precinct inspectors asked for by the Republican commis-
sioner of elections to represent the Republicans on the election boards,
were refused, and taking into consideration all the evidence, the com-
mittee are convinced that frauds sufficient to invalidate the returns
were committed in the precincts noted and some others in this county,
but, iuas much as these frauds do no not affect a sufficient number of
votes to overcome the majority returned for contestee, the committee
do not attempt to restate the vote in. full, and determine what reductions
ought to be made from contestee's returned majority.

Taken altogether, the record discloses a deplorable condition of affairs
in the Seventh Mississippi district, such as can neither be excused nor
palliated. For the reason that the frauds developed in the evidence
and described in this report are insufficient in amount to overcome all
the majority returned for contestee, the committee recommend the
adoption of the following resolutions:

Resolved, That Henry Kernaghan was not elected a Representative in
the Fifty-first Congress from the Seventh Congressional district of Mis-
sissippi, and is not entitled to a seat therein.

Resolved, That Charles E. Hooker was elected a Representative in
the Fifty-first Congress from the Seventh Congressional district of
Mississippi, and is entitled to retain his seat therein.

JAMES HILL vs. T. C. CATCHINGS.

THIRD MISSISSIPPI.

The notice of contest alleges fraudulent refusal to receive the ballots
of legal voters ; fraudulent refusal to hold elections in several large Be-
publican precincts; that the whole election machinery of the district
was in the hands of friends of contestee, in violation of the statutes;
that the United States supervisors were prevented from discharging
the duties imposed upon them by law ; and that the returns transmitted
to the secretary of state are fraudulent.

The committee find frauds of various sorts, but that they are not
shown to have affected enough votes to overcome the whole of the ma-
jority returned for contestee. A letter written by contestee is in evi-
dence which the committee find to be a suggestion to hinder unlawfully
the taking of testimony in the case, but it does not appear that the
suggestions were acted on.

Mr. Lacey files a minority report contending that the above-men-
tioned letter constructively connects contestee personally with the
frauds found to have been practiced at the election, and that under
such circumstances the rule ought to be to declare the seat vacant. The
case was never reached by the House.
(1) Election officers. Partisan appointment of.

" A statutory provision for allowing opposing parties to have repre-
sentation on all election boards having charge of the conduct of elec-
tions is usually deemed necessary to secure honest results, and when
fairly executed in letter and spirit may as a rule be relied on, at least
so far as counting and returning the vote is involved. A general and
willful disregard by the appointing power either of the letter or spirit
of the law raises a strong presumption of an intent on the part of the
appointing officers to afford opportunity for fraud. * * * While the
statute does not direct how the appointing bodies shall make selections,
its spirit clearly requires that in selecting representatives of the differ-
ent parties the wishes of those representing the party organization
shall be considered, and that the appointees shall be men having the
confidence of their political associates. The selection of men to repre-
sent a political party on an election board who habitually vote the op-
posite ticket, who are not trusted in their party, or who are notoriously
H. Mis. 137 51 Ml

802 HILL VS. CATCHINGS.

incompetent, is not a compliance either with the letter or the spirit of
the statute." * * *

"While suspicion attaches to all such precincts, such suspicion is not
sufficient to invalidate the return, in the absence of other evidence, but
it does have the effect of requiring less evidence to overturn the prim a
facie correctness of the returns."

(2) United States Supervisor. Interference with.

" In every instance where a United States supervisor is prevented
from discharging his duties, as provided by statute, the committee hold
that such fact destroys the validity of the return and requires its re-
jection, leaving the parties to prove the vote by other competent evi-
dence."

(3) United States Supervisors. Duties of.

Section 2029 of the Revised Statutes is not a repeal of sections 2016.
2017, and 2018, and in no way changes the duty of the supervisors " to
be and remain where the ballot boxes are kept at all times after the
polls are opened until every vote cast at such time and place be counted,
the canvass of all votes polled wholly completed, and the proper ajid
requisite certificates or returns made."

" By section 2029 the power to order arrests is taken from United
States supervisors in all places other than in cities of 20,000 inhabitants
or upwards, and their duties are limited to witnessing the conduct of
the election, the counting and making return of the result. This in-
cludes the power and duty to be present at all times and to scrutinize
the count and return."

(4) Ex parte affidavits.

Ex parte affidavits filed by the contestant were not considered by
the committee, there being nothing in the record to justify the resort to
this kind of proof.

REPORT.

FEBRUARY 25, 1891. Mr. ROWELL, from the Committee on Elections,
submitted the following report :

The Committee on Elections, having had under consideration the
contested-election case of Hill vs. Catchings, from the Third Congres-
sional district of Mississippi, submit the following.report :

At the election held November 6, 1888, for Representative in Con-
gress from the Third Congressional district of Mississippi, James Hill
was the Republican and T. C. Catchiugs the Democratic candidate.
Catchings received the certificate of election, his majority according to
the returns being 7,011.

We insert the returns by counties:

Counties.

T.C.Catr.h-
inga.

James Hill.

Bolirar

1 673

951

945

1 257

Sharkey .. .

662

' 185

130

144

379

2, 745

586

2 603

613

Issaquena ................................................................

779

275

Tnnica

879

600

Le Flore .............. . .. ............. ..................... .

829

11,624

4 613

Catchioga'g reported majority, 7,011.

The notice of contest alleges fraudulent refusal to receive the ballots
of legal voters ; fraudulent refusal to hold elections in several large Re-
publican precincts ; that the whole election machinery of the district
was in the hands of friends of contestee, in violation of the statutes ;
that the United States supervisors were prevented from discharging
the duties imposed upon them by law ; and that the returns transmitted
to the secretary of state are fraudulent.

The population of the district is largely colored, the proportion of
colored to white being about 4 to 1. The evidence discloses the fact
that a large majority of the colored voters are Republicans, and a large
majority of the white voters are Democrats. On a fair election, with
both parties equally well organized and with equally acceptable candi-
dates, there is no question but that the district would go Republican by
a very large majority. 803

804 HILL VS. CATCHINGS.

The committee, however, are of opinion, from the evidence presented
to them, that T. O. Catchings was elected by a majority of all the legal
votes cast, but by a much less majority than was returned for him. He
was popular with his party, was believed to be especially efficient in
representing the interests of his district, and to be able to do more in
the way of securing Government aid in protecting the lands of the dis-
trict from the ravages of the Mississippi River than was his opponent.
He was stronger than his party, and was supported in some parts of
the district by influential colored Republicans. In addition, his party
was well organized and more fully registered than the opposition.

Mr. Hill was popular with the colored Republicans in most of the
district, but failed to secure the active support of the white Republi-
cans. In a portion of the district his adherents were not organized, and
in only a small portion of the whole district did he have that kind of
effective organization which would enable his followers to poll anything
like a full vote.

In reporting that contestee was duly elected, as shown by the evi-
dence, we by no means mean to be understood as saying that the elec-
tion as a whole was free and fair. On the contrary, we are satisfied
that preparation was made to commit fraud if necessary to secure the
election of contestee, and that in some instances the preparation ripened
into action. By the statutes of Mississippi the election machinery of
the State is primarily in the hands of the governor, lieutenant-gover-
nor, and secretary of state. Previous to each general election these
State officers are required to appoint three commissioners of election
for each county, not all of whom shall be of the same political party.
These commissioners appoint the precinct inspectors, with a like limi-
tation as to party affiliation.

Such a statutory provision for allowing opposing parties to have repre-
sentation on all election boards having charge of the conduct of elections
is usually deemed necessary to secure honest results, and when fairly
executed in letter and spirit may as a rule be relied on, at least so far
as counting and returning the vote is involved. A general and willful
disregard by the appointing power either of the letter or spirit of the
law raises a strong presumption of an intent on the part of the appoint-
ing officers to aftbrd opportunity for fraud. In this case it clearly ap-
pears that the State officers in appointing county commissioners inten-
tionally disregarded the spirit of the law, and in some instances violated
its letter. In like manner the county commissioners quite generally
violated the letter and spirit of the law in appointing precinct in-
spectors, Republican committees were ignored, their wishes disre-
garded, and their recommendations rejected.

While the statute does not direct how these appointing bodies shall
make selections, its spirit clearly requires that in selecting repre-
sentatives of the different parties the wishes of those represent-
ing the party organization shall be considered, and that the appointees
shall be men having the confidence of their political associates. The
selection of men to represent a politcal party on an election board who
habitually vote the opposite ticket, who are not trusted in their party,
or who are notoriously incompetent, is not a compliance either with the
letter or the spirit of the statute. We are glad to note some honorable
exceptions to the general rule in this district, in the selection of pre-
cinct inspectors, and to commend the effect in producing confidence in
the returns from such boards.

In a majority of the precincts, about which evidence was taken, we
find that the precinct inspectors appointed to represent the Republi-

HILL VS. CATCHINGS. 805

cans were either Democrats in fact, or were incompetent and untrust-
worthy. While suspicion attaches to all such precincts, such suspicion
is not sufficient to invalidate the return, in the absence of other evidence,
but it does have the effect of requiring less evidence to overturn the
prima facie correctness of the returns. In regard to a few of the pre-
cincts this evidence is not wanting, while in others there is an entire
absence of evidence tending to impeach the validity of the returns. In
some instances there is affirmative proof sustaining the correctness of
the returns.

In several large Republican precincts no elections were held, and it
is manifest that the neglect to hold elections was intentional and for
the purpose of depriving contestant of the votes which he otherwise
would have received. In one instance the poll books were carried off
to prevent the holding of an election. While there is some conflict in
the evidence, we are convinced that the whole matter was arranged at
a Democratic meeting the night before the election.

In district No. 2, Sharkey County, Hill received 129 votes and Catch-
ings 25. When the returns came in the vote was found to be reversed.
All the inspectors of the election testify to the correct returns, and are
at a loss to explain how the change took place. The error is conceded.
The committee have no doubt that the change was intentionally made
by some one connected with the election. In five or six instances
United States supervisors were prevented from discharging their duties
according to law, either by being refused admission to the polling place,
or by being prevented from witnessing the count, or by the removal of
the ballot box from their presence.

In every instance where a United States supervisor is prevented from
discharging his duties, as provided by statute, the committee hold that
such fact destroys the validity of the return and requires its rejection,
leaving the parties to prove the vote by other competent evidence.

After allowing such correction of the vote as the evidence requires,
and after rejecting all the returns which have been proved to be un-
trustworthy, and even conceding to contestant such majority as he
might have received in the districts where no election was held, there
is still left to coutestee a good majority.

Previous to the election one J. S. McNeily, chairman of the Democratic
Congressional Committee, issued a circular of instructions to the in-
spectors of elections, in which occurs the following ("Record, 193, 194) :

Here I had intended closing this paper, when I read a copy of the instructions
issued to the Federal supervisors by R. H. Winter, chief supervisor of elections for
the southern district of Mississippi. To my utter surprise I discovered tbat he had,
through ignorance, I presume, under cover of "instructions," grossly misled these
officials by quoting for their guidance law wholly inapplicable to their office and its
functions. The sections of the U. S. Statutes comprised in those instructions, sec-
tions 2016, 2017, 201H, 2019, and 2029, are. with the exception of the last, expressly
applicable to cities alone of ^0,000 inhabitants and over. This production of the
chief supervisor embodies the outrageous proposition that the Federal dark-corner
appointees shall by authority of a fal.se quotation of law usurp and exercise the law-
ful duties of the State officials. While it is charitable to allow that Mr. Winter has
done this thing in ignorance, there is beyond question a wicked design behind it. Of
this I have evidence that it is a part of Jim Hill's contest programme to use it as a
means of creating an embroilment between the Federal aud the State officials.
Kuowing that he is beaten at the polls, this is his only purpose. Be this as it may,
you will on no account permit your lawful conduct, as defined above, and more par-
ticularly in the code of 1860, to be interfered with. The Federal supervisors, you
will see to it, shall restrict their acts to section 2029 U. S. Statutes. This section is
the law, and the sole law, for their guidance as laid down by U. S. Judge R. A. Hill
in his rebuke of a former similar attempt at usurpation. If they do not, if they at-
tempt to interfere with the executive duties imposed upon you by assuming "to
personally scrutinize, count, aud canvass each ballot" as they are misdirected to do,
you will resolutely and promptly hand them over to the proper peace officer on (.he

80H HILL VS. CATCHINGS.

charge of unlawful interference. If trouble arises, if any of these Federal appointees
have the hardihood to attempt to carry out this illegal direction, the responsibility
will rest with Mr. Winter and those who have inspired his most mischievous circu-
lar.

I have taken the highest legal advice as to my warrant in issuing this paper. I ad-
dress it to the Democratic election inspectors, perfectly confident that they will, at all
hazards, carry out its lawful substance and meaning. I furthermore appeal to the
Democrats, and all good men of the district, to rebuke this effort upon their rights, and
to see in it a true reflection of the vile and reckless nature of this contest against them,
of the character of the movement to which they are called upon to surrender their
largest material interest. Let the full strength of your mauhood come forth on elec-
tion day and inflict upon this nefarious scheme utter and overwhelming defeat.

Mr. Winter has had his attention directed, by telegraph, to the error of his action
and the probable consequence thereof if he does not promptly revoke his circular, and
that in any event the Democratic skirts may be clear Judge Hill will be asked, by
telegraph, to order its revocation. But in any event the course of the State officials
is clear.

I hereto append the opinion upon this question, often quoted and uniformly coin-
cided in by legal authorities, of Ex-Attorney-Geueral Catchings.

J. S. McNEiLY,

Chairman.

This language is based upon an opinion given by contestee when at-
torney-general of the State. It assumes that section 2029 of the Re-
vised Statutes alone defines the rights and duties of supervisors of
election in counties and parishes, and is in eft'ect a repeal of all of sec-
tions 2016, 2017, and 2018 so far as such supervisors are concerned.

This is a mistake ; section 2029 in no way changes the duty of the
supervisors

To be and remain where the ballot boxes are kept at all times after the polls are
opened until every vote cast at such tiuie and place be counted, the canvass of all
votes polled wholly completed, and the proper and requisite certificates or returns
in ade.

By section 2029 the power to order arrests is taken from United States
supervisors in all places other than in cities of 20,000 inhabitants or
upwards, and their duties are limited to witnessing the conduct of the
election, the counting and making return of the result. This includes
the power and duty to be present at all times and to scrutinize the count
and return.

The McNeily instructions spoke of the supervisors as " Federal dark
corner appointees " and directed :

If they attempt to interfere with the executive duties imposed upon you by assum-
ing " to personally scrutinize, count, and canvass each ballot." * * * You will
resolutely and promptly hand them over to the proper peace officers on the charge of
unlawful interference.

This was not only a direction to violate the United States statute,
but was in other respects calculated to cause a breach of the peace and
prevent an orderly election. Had this advice been generally followed
the committee would reject all returns of elections held under such cir-
cumstances.

Exparte affidavits were filed in the case by contestant, which, if con-
sidered by the committee, would materially change the result; but the
committee find nothing in the record to justify the resort to this kind
of proof, and reject all the affidavits as not being legitimately in the
record.

After the election and pending the contest General Catchiugs, the
contestee, wrote a letter to Chairman McNeily, in which occurs the fol-
lowing language :

After his (Hill's) time isont we have so many days in which to take testimony, and
will have to give him similar notice. 1 do not think it iconld hurt at all if one or two of
them should disappear. It might have a very happy effect on Hill, his witnesses, and law-
yers.

HILL VS. CATCHINGS. 807

General Catchings filed the following- written acknowledgment with
the committee, submitting the above quotation from his letter:

The following extract from a letter written to J. S. McNeily, chairman Congres-
sional committee, Third Mississippi district, by Hon. T. C. Catchings, contestee, under
date December 28, 1838, is admitted as having been written and delivered to J. S.Mc-
Neily, chairman Democratic Congressional committee, Third Mississippi district, and
is admitted in evidence in this case by agreement.

T. C. CATCHINGS,
JAMKS HILL,
Per DUDLEY & THOMAS,

Att'ys for Contestant.

The language speaks for itself. It was a suggestion to hinder un-
lawfully the taking of testimony in the case. Had the advice been
acted upon the committee would have had more difficulty in reaching
the conclusion that contestee was elected. But so far as appears in the
evidence the suggestions of the letter were not acted upon in any in-
stance, and it is a reasonable conclusion that they were not approved
by Chairman McNeily. Such suggestions, coming from a reputable
source, but emphasize the truth of the charge that the public senti-
ment of the dominant race in this district is hostile to the exercise by
the colored voter of the rights granted him by the Constitution, and
looks with leniency upon crimes against the purity of the ballot box.

As further showing the state of public opinion on this question we
quote from the testimony.

Mr. Martin Marshall, a lawyer of character, says on page 306 of the
record :

As to whether such rascally tricks would be a preferable, though bad, alternative to
avoid misrule and public thievery and the destruction of the material interests of
the country, I am not casuist enough to decide; whether a people reduced to that
bad alternative are to be condemned for resorting to that sort of defense of their
interests, let those who never were reduced to it be bold enough to answer.

Chairman McjSTeily says, on page 195 :

Would the fact that a man had ever stuffed a ballot box cause him to forfeit either
his social or business standing?

If he had [been] convicted, sentenced, and punished, yes.

In that case would the ostracism be due to the crime or because he had been fool
enough to be caught ?

I don't think I would ostracise him.

In a choice between negro rule and ballot-box stuffing which would you choose ?

I would do like the old darky preacher, I would take to the woods.

Mr. John Finlay, a druggist of Greenville, says, on page 368 :

Do you consider ballot-box stuffing a crime, in view of the peculiar surroundings
in the county and the South generally ?

No, I don't ; I consider it a necessity at times.

In a contest where it was a question of race supremacy rather than one of party
politics, would a man who stuffed the ballot box forfeit either his social or business
standing ?

No, sir ; he would not.

Is not ballot-box stuffing looked upon by the best element in the South as the choice
between necessary evils?

It is so far as I know.

Matthew F. Johnson, a planter and a member of the Democratic ex-
ecutive committee of the district, says, on page 339 :

What is your opinion of ballot box stuffing ?

I believe if necessity required it, to protect the property interest of the white peo-
ple in this county, and if 1 did it, I don't think it would affect my chances for heaven-
one particle, and I would stuff a ballot box if required to do it to put a good Repub-
lican in office as I would a Democrat, as my object is to have good honest govern-
ment.

808 HILL VS. CATCHINGS.

Inasmuch as the committee are of the opinion that after making all
legitimate deductions required by the evidence from the majority re-
turned for contestee, he still has a majority of the votes, it is not deemed
necessary to review in detail the evidence in regard to the several pre-
cincts where frauds were perpetrated sufficient to cause the rejection of
the returns.

The committee recommend the adoption of the following resolutions

Resolved, That James Hill was not elected a Representative in the
Fifty-first Congress from the Third Congressional district of Mississippi
and is not entitled to the seat as such Representative.

Resolved, That T. C. Catchings was elected a Representative in the
Fifty-first Congress from the Third Congressional district of Mississippi,
and is entitled to retain his seat as such Representative.

VIEWS OF MR. LACEY.

(1) Fraud or bribery. Committed by a candidate, should invalidate his
election.

" The law ought to be held as follows :

Where the friends of a successful candidate, without collusion or
combination with such candidate, engage in fraud, bribery, intimidation,
or other violations of law to influence the election, and the number of
votes affected thereby is insufficient to change the result, the election
will not be invalidated thereby ; but if such candidate takes part in
such wrongs, or confederates with those engaged therein, and it does
not appear that the election has been changed in its results thereby,
the election should be held void, and a new election ordered. * * *

In order to give the seat to the contestant, it should be necessary to
prove that the results were changed by the transactions in question,
but to unseat the participant a less amount of proof should be suffi-
cient."

(2) Suppression of testimony.

The attempt of coutestee, as shown in his letter, to suppress the
evidence of the frauds committed, connects him with those frauds and
brings him within the scope of the above rule.

809

VIEWS OF MR. LACEY.

Mr. LACEY submits the following as the views of the minority:

The report of the majority of the committee concedes that the district
has a large Republican majority. The majority report further concedes
that there were gross frauds, and that when these frauds are eliminated
from the count the majority of the contestee would be greatly reduced.
I will not recite these frauds fully, as they are for the purpose of this
report sufficiently set out in the report of the majority.

It appears, however, that in selecting the officers to hold the election
neither the letter nor spirit of the law was complied with, and the Re-
publican party had no fair representation upon the election boards.
In some precincts where there was a Republican majority no election
was held. The returns showing a majority for Hill were fraudulently
reversed, showing a like majority for the Democratic nominee. Fed-
eral supervisors were interfered with in the discharge of their duties.
In short, there were frauds of various kinds, materially affecting the
result, but the evidence does not show enough in detail to change the
result and give a majority for the contestant.

Mr. Hill contended that the occurrence of certain political murders
and outrages in other localities justified him in not incurring the danger
of taking further testimony in his case, and that if the evidence had
been fully taken his election would have been clearly shown. That his
fears were not groundless is shown by well-known bloody occurrences
which have startled the whole country. But I agree with the majority
in their conclusion that the contestant has not introduced enough tes-
timony to show that he did in fact receive a majoriy of the legal votes
cast. This, however, leaves for discussion the question as to whether
enough has been shown to require that the election should be held void.

I think that the law ought to be held as follows :

Where the friends of a successful candidate, without collusion or
combination with such candidate, engage in fraud, bribery, intimidation,
or other violations of law to influence the election, and the number of
votes affected thereby is insufficient to change the result, the election
will not be invalidated thereby ; but if such candidate takes part in
such wrongs, or confederates with those engaged therein, and it does
not appear that the election has been changed in its results thereby, the
election should be held void, and a new election ordered.

The question as to the effect of connivance with or participation in
such wrongful acts by a candidate is one in which the law ought to be
clearly laid down and unhesitatingly enforced.

I concede that the preponderance of the authorities hold to the effect
that such acts upon the part of the contestee will not render the elec-
tion void unless it appears affirmatively that such unlawful acts changed

811

812 HILL VS. CATCIIINGS.

the result. The effect of bribery in parliamentary elections has been
settled by statute in Great Britain, and renders the election void al-
though the votes affected were insufficient to change the result. The
interests of good government and the importance of purity of elections
require that the rule should be laid down and enforced against every
candidate that he should not participate in or incite any violations of
the laws under which the election is held.

Whilst a candidate should not be held accountable for the acts of his
partisans, committed in the heat of a political campaign, yet he should
be held to instigate or participate in such acts at his peril. He should
understand that in case of his instigation of violations of the law or of
his participation in such violation he shall not be permitted to hold his
seat. A contestant should not be compelled to prove just how many
votes were affected by such wrongful acts of the contestee in order to
have the election declared void. The full effect of such wrongs may
often be hard to prove. The sitting member should have his skirts
clear of all participation.

A vigorous contest was made in this district, which was naturally a
Republican stronghold. The contestant and the coutestee took an ac-
tive interest and participated in the campaign pending the election. It
is not probable that any wide-spread and obviously preconcerted viola-
tion of the election law, such as is shown, should have occurred against
the wishes of the contestee.

But after the election, and while the contest was in progress, it ap-
pears that the contestee wrote to the chairman of his party a letter in
which appears the following language:

After his (Hill's) time is out we have so many days in which to take testimony,
and will have to give him similar notice. I do not think it would hurt at all if one
or two of them should disappear. It might have a very happy effect on Hill, his
witnesses, and lawyers.

In the light of the deplorable events which have occurred in some
parts of Mississippi in connection with elections and election contests,
it is unnecessary to discuss the full scope and meaning of this letter.
The language is of contestee's own choosing and speaks for itself. Gen-
eral Catchings had a full opportunity to explain this letter before the
committee, but wholly failed to avail himself of that opportunity. He
argued his own case in person, and when the letter was read to the
committee an opportunity was given him to contradict or explain, but
he did not see fit to do so.

Does the fact of writing such a letter, under the circumstances, suffi-
ciently connect the contestee with the various frauds described in the
majority report ? I think it does. Where the recipient of the benefits
of such a fraud not only accepts its advantages, but attempts to sup-
press the testimony of the crime, such attempted suppression, or at-
tempted suppression when unexplained and uueontradicted, ought to
be regarded as sufficient to show the contestee's original connection
with these various wrongs. The frauds are general and widespread,
the party of the coutestee were acting in concert, and a just suspicion
will always attach to a leader where his followers are so generally
guilty of offenses against fair elections. But when such acts are fol-
lowed by active attempts at suppression of the evidence, such as appears
in the letter to McNeily, the inference is irresistible. Taking the letter

HILL VS. CATCHINGS. 813

of the contestee into consideration, in the light of all the surrounding
circumstances, the conclusion follows that the contestee is responsible
in some degree for the acts of his party and partisans, as set out in the
majority report.

The seat ought, therefore, to be declared vacant and an election
stained with so much fraud and corruption ought to be set aside. I
recommend the adoption of the following substitute for the resolution
reported by the majority:

Resolved, That T. C. Catchings was not elected as Bepresentative in
the Fifty-first Congress from the Third Congressional district of Missis-
sippi, and that the seat is hereby declared vacant.

L. B. EATON vs. JAMES PHELAN.

TENTH TENNESSEE.

Contestant charged repeating, illegal voting, corruption, and fraud in
the city of Memphis, and ballot-box-stuffing and false counting in the
county of Fayette and portions of other counties. A large amount of
testimony was taken, and the case argued before the committee.

The seat became vacant by the death of Mr. Phelan before the expi-
ration of Congress. No report was ever made or decision reached upon
the question of the right of Mr. Eaton to fill the vacancy.

815

DIGEST-INDEX.

Page.
Abbreviation. The word "twe."

Where the statute requires the return to set forth the number of votes
received "in words at length," the word '' twe" can not be construed to
mean twelve or twenty without evidence. It should either be counted
as two, or the ambiguity explained by evidence.

Smith vs. Jackson 17

Ballots. Best evidence.

The ballots, when clearly shown to be the identical ballots cast, are the
best evidence of the vote.

Mudd vs. Compton (minority report) 165

As evidence.

Best evidence, and none other admissible.

McLean vs. Broadhead (minority), Forty-eighth Congress (Mobley,

389).

McDuffie vs. Davidson, Fiftieth Congress (Mobley, 579).
Craig vs. Shelley (minority), Forty -seventh Congress (2 Ells., 48).
Can not be contradicted even by testimony of voters themselves.
Otero vs. Gallejos, Thirty-fourth Congress (1 Bart., 184).
Van Rensselaer vs. Van Allen, Third Congress (C. & H., 76).
(See Evidence and Recount.)
Not best evidence when fraud is alleged.

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 180).
Reed vs. Julian, Forty-first Congress 2 (Bart., 822).
(For cases where other evidence was received see Returns.)
Distinguishing mark.

An asterisk so small as not to be noticeable, printed in the lower corner
of a ticket, does not constitute such a distinguishing mark as to require
the ballot to be rejected under the Florida statutes.

Goodrich vs. Bullock 586

Where the statute provided that ballots should be written or printed in
black ink or black pencil, and that no ballot of any other description should
be counted, and certain ballots were partly written in red ink, it being
impossible to procure any other ink in the only store in the place, held,
that the votes should be counted on a contest, notwithstanding the terms
of the statute.

Goodrich vs. Bullock 586

Ballots rejected because the name of a candidate for justice of the peace
was written in with a red pencil should be counted.

Goodrich vs.. Bullock 591

Ballots rejected because of scarcely visible specks, and those rejected
because of a printer's dash in a place where no person was named for a par-
ticular office, were improperly rejected.

Goodrich vs. Bullock 591

Ballots rejected because of a printer's dash separating each name on the
ticket should be counted.

Goodrich vs. Bullock 591

Ballots rejected because of pencil marks on them made by the judges of
election in pushing them into a box with a pencil should be counted.

Goodrich vs. Bullock 591

The ballots partly written in red ink or red pencil were properly rejected,
their rejection being directly required by the law of Florida.

Goodrich vs. Bullock (minority)., 614

817
H. Mis. 137 52

818 INDEX.

Page.
Ballots Continued.

Distinguishing marTc.
Liberal construction.

Wigginton vs. Pacheco, Forty-fifth Congress (1 Ells., 14).

Burns vs. Young, Forty-third Congress (Smith, 181).

Fenn vs. Bennett, Forty-fourth Congress (Smith, 593).

Sessinghaus vs. Frost, Forty-seventh Congress (2 Ells., 392).

Lynch vs. Chalmers, Forty-seventh Congress (2 Ells., 340-353).

Lowe vs. Wheeler, Forty-seventh Congress (2 Ells., 64).

Sullivan vs. Felton, Fiftieth Congress ^ Mobley, 763).

McKenzie vs. Braxton, Forty-second Congress (Smith, 25).

Giddings rs. Clark, Forty-second Congress (Smith, 95).

Bisbee vs. Hull, Forty-sixth Congress (1 Ells., 319).

Douelly vs. Washburn (minority), Forty-sixth Congress (1 Ells., 494,-
503).

English vs. Peelle (minority), Forty-eighth Congress (Mobley, 178).

Wallace vs. McKinley, Forty-eighth Congress (Mobley, 187).

Campbell rs. Morey, Forty-eighth Congress (Mobley. 217).

Page vs. Pirce, Forty-ninth Congress ^ Mobley, 504).

Finley vs. Walls (numbering) Forty-fourth Congress (Smith, 367).
Strict construction.

Yeates vs. Martin, Forty-sixth Congress (1 Ells., 388).

Lowe *. Wheeler (minority), Forty-seventh Congress (2 Ells., 107, 116).

Sullivan vs. Felton (minority), Fiftieth Congress (Mobley, 762).

Donelly vs. Washburn, Forty-sixth Congress (1 Ells., 455).

Lynch vs. Chalmers (minority), Forty-seventh Congress (2 Ells., 373).

Sullivan vs. Felton, Fiftieth Congress (Mobley, 764).

English vs. Peelle, Forty-eighth Congress (Mobley, 168).

Campbell rs. Morey (minority), Forty-eighth Congress (Mobley, 235).

Smalls vs. Elliott, Fiftieth Congress (Mobley, 669).

Lindsay vs. Scott (numbering) Thirty-eighth Congress; (1 Bart., 569).
Excess of.

Where there was an excess of 26 ballots in a vote of about 200, and the
count was conducted without witnesses and under suspicious circum-
stances, the committee held that this was sufficient to reject the return.

Laugston vs. Venable 441

Where ballot boxes are proved to have been stuffed the returns are re-
jected and no votes counted except those proved or conceded aside from
the returns. This in spite of the fact that the excess of votes had been
"purged" as provided for in the statutes of South Carolina, for "such
method of disposing of extra ballots is provided for mistakes, and not for
frauds."

Miller vs. Elliott 526

"The mere fact that the number of votes returned exceeds the number
of names checked on the voting list does not in the absence of fraud or of
a change in the result affect the validity of the election (Paine, 599)."

Langston vs. Venable (minority report) 501

If excess due to fraud, returns rejected or corrected.

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 183).

Smalls vs. Tillman, Forty-seventh Congress (2 Ells., 458).

Lee vs. Richardson, Forty-seventh Congress (2 Ells., 551).

Mackey vs. O'Connor, Forty-seventh Congress (2 Ells., 572-578).

Smalls vs. Elliott (minority), Forty-eighth Congress (Mobley, 729).
If excess drawn out according to law, returns should stand.

Bisbee vs. Finley (minority), Forty-seventh Congress (2 Ells., 223).

Smalls vs. Tillman (minority), Forty-seventh Congress (2 Ells., 486).

Smalls vs. Elliott, Fiftieth Congress (Mobley, 664).
Deducted pro rata.

Campbell vs. Morey, Forty-eighth Congress (Mobley, 216).
Deficiency of.

Kurd vs. Romeis, Forty-ninth Congress (Mobley, 424).

(See also Lynch vs. Chalmers, Forty-seventh Congress) (2 Ells., 356).
Imperfect.

Whenever the intention of the voter is clear and unmistakable, effect
should be given to it.

Mudd vi. Compton 152

Meaning of.

Guyonva. Sage, Sixteenth Congress (word "Jr.") (C. &H., 348).

INDEX. 819

Page.
Ballots. Meaning of Continued.

Hugunin vs. Ten Eyck, Nineteenth -Congress (word "Jr.") (C. & H.,
501).

Wright vs. Fisher, Twenty-first Congress (word "Jr.") (C. & H., 518).

Frederick vs. Wilson, Forty-eighth Congress (Mobley, 404).

Worthington vs. Post, Fiftieth Congress (Mobley, 647).

Chapman vs. Ferguson, Thirty-fifth Congress (1 Bart., 268).

McKenzie vs. Braxton, Forty-second Congress (Smith, 21).

Gunter vs. Wilshire, Forty-third Congress (Smith, 239).

Lee vs. Rainey, Forty-fourth Congress (Smith, 590).

Wallace vs. McKinley, Forty-eighth Congress (Mobley, 186),

Wigginton vs. Pacheco, Forty-fifth Congress (1 Ells., 18).
. Dean vs. Field, Forty-fifth Congress (1 Ells., 192).

Boynton vs. Loring, Forty -sixth Congress (1 Ells., 352).

Blair vs. Barrett, Thirty-sixth Congress (1 Bart., 318).

Root vs. Adams, Fourteenth Congress (C. & H., 271).

Reed vs. Cosdeu, Seventeenth Congress (C & H., 355).

Washburn vs. Ripley, Twenty-first Congress (C. & H., 681).

Strobach vs. Herbert, Forty-seventh Congress (2 Ells.^ 6).

Wallace vs. McKiuley (minority), Forty-eighth Congress (Mobley, 212).

Campbell vs. Morey, Forty-eighth Congress (Mobley, 218).

Sessinghaus vs. Frost, Forty-seventh Cougress(2 Ells., 393).

Turner vs. Baylies, Eleventh Congress (word "Jr.") (C. & H., 235).

Williams vs. Bowers, Thirteenth Congress (word "Jr.") (C. & H., 2K4).

Willonghbv vs. Smith, Fourteenth Congress (word "Jr.") (C. & H.,

265).
Ballot box. Runoval of.

Where the poll was closed for dinner, and the box removed from the
presence of the United States supervisors, held, that "but for the strong
affirmative proof that no wrong was intended or done in this case, the
committee would unhesitatingly reject the return."

Bo wen vs. Buchanan 197

Adjournment for dinner held not sufficient of itself to reject a poll.

Delano vs. Morgan, Fortieth Congress (2 Bart., 172).

Cox vs. Strait. Forty-fourth Congress (Smith, 434).

Bisbee vs. Fiuley (minority), Forty-seventh Congress (2 Ells., 215).

Smalls vs. Elliott (minority), Fiftieth Congress (Mobley, 717).

Finley vs. Walls, Forty-fourth Congress (Smith, 367).
Shifting of.

The shifting of ballot boxes for the purpose of deceiving voters and en-
forcing on them an educational test not permitted by the constitution of
the State, is an unlawful and fraudulent proceeding. "An act may not
expressly be forbidden by law, but if it is done with an unlawful purpose,
and succeeds in accomplishing that purpose, the act is thereby made un-
lawful." Under such circumstances the votes found in the wrong boxes
should be counted. "It is no answer to say that the counting of such
ballots is prohibited by statute (even admitting that the statute is a
reasonable regulation, which, under the peculiar circumstances in South
Carolina, we do not), when the mistaken deposit has resulted from the
active deception of the managers. It is a crime at common law to enter
into a conspiracy to commit an offense against the purity and fairness of a
public election (Paine on Elections, section 496, and authorities cited)."

Miller vs. Elliot 520

Shifting of, justifiable.

The section of the election law of South Carolina which provides for a
number of ballot-boxes, plainly labeled, for the different offices, and requires
that the voter shall be separated from others and not spoken to by any one
except the judges while at the polling place depositing his vote, is well cal-
culated to carry out the provisions of the Constitution that the voter shall
he protected from "an undue influence from power, bribery, tumult, or
improper conduct," and to protect him in his right to a secret ballot. If
the voters were found to be receiving information from outsiders which
they were required to receive from the judges, " if the wise provisions of
this law were being interfered with and rendered nugatory by any outsider
at any poll, or if it came under the observation of those selected to super-
vise the execution of this law that its letter or intention or spirit was being
violated, we submit it was the duty of the managers to shift the boxes or
perform any other legal act to subserve its proper execution."

Miller vs. Elliott (minority report) 541

820 INDEX.

Page.

Ballot box. Ballots in wrong loxea.
May be counted.

Platt vs. Goode, Forty-fourth Congress (Smith, 652).
Campbell rs. Weaver, Forty-ninth Congress (Mobley, 456).
May not be counted.

Platt vs. Goode (minority), Forty-fourth Congress (Smith, 677).
Newland vs. Graham, Twenty-fourth Congress (1 Bart.. 8).
Ripley vs. Washburn, Twenty-first Congress (C. fc H., 679).
Burden of proof.

When it is shown that the contestant was elected on the face of the re-
turns the burden of proof shifts to the contestee.

Smith vs. Jackson 20

Contestant being shown to have been elected on the face of the returns
the burden shifts, and it devolves upon contestee to establish his right to
the seat he occupies by affirmative evidence.

Atkinson vs. Pendletou 55

When it appears that the contestant was elected on the face of the re-
turns the burden of showing that these returns were not correct is thrown
on the coutestee.

Mudd vs. Compton 152

When it is shown that the contestant is elected on the face of the re-
turns the burden is cast upon the contestee to overcome the prima facie
right which the returns give to the contestant.

MoGinnis vs. Alderson. 635

Shifts to contestee when contestant is elected on face of returns.
Garrison vs. Mayo, Forty-eighth Congress (Mobley, 56).
Wallace vs. McKinley, Forty-eighth Congress (Mobley, 186).
Contrary opinion:

Wallace vs. McKinley (minority), Forty-eighth Congress (Mobley, 192).
Certificate of election, force of

"A certificate of election, showing upon its face that nearly 8,000 votes
were wholly ignored in the count, can have no binding force and effect in
a contest of this character. * * When his title is assailed in a direct
proceeding by way of a contest we think that a certificate showing the
above facts gives the contestee no superior standing over the contestant as
to burden of proof. For the purposes of the contest a certificate which on
its face shows that a large vote was wholly ignored, and giving no data from
which the true results could be ascertained, ought not to be considered as
binding upon anybody."

McGiuuis ra. Alderson 034

On certificate and credentials see:

Chalmers vs. Manning, Forty-eighth Congress (Mobley, 8, 22).
Garrison t'. Mayo, Forty-eighth Congress (Mobley, 53).
B. Edwards, Third Congress (C. & H., 92).
Letchert's. Moore, Twenty-third Congress (C. & H.,715).
Potter vs. Bobbins, Twenty-third Congress (C. & H,,877).
Clements, Thirty-seventh Congress (1 Bart., 367).
Morton vs. Daily, Thirty-seventh Congress (1 Bart., 403). .
Colorado case, Fortieth Congress (2 Bart., 164).
Hoge ra. Eeed, Forty-first Congress (2 Bart., 541).
Wallace vs. Simpson, Forty-first Congress (2 Bart. ,552).
Sheridan vs. Pinchback, Forty-third Congress (Smith, 198).
Bisbee vs. Hull, Forty-sixth Congress (1 Ells., 317).
Smalls t-a. Tillmau, Forty-seventh Congress (2 Ells., 432).
Cannon vs. Campbell, Forty-seventh Congress (2 Ells., 617).
Clarke, Forty-second Congress (Smith, 7).
Gunter vs. Wilshire, Forty-third Congress (Smith, 135).
Koontz rs'. Coflroth, Thirty-ninth Congress (2 Bart., 25).
Foster vs. Covode, Forty-first Congress (2 Bart., 519).
Hunt vs. Sheldon, Forty-first Congress (2 Bart., 530).
Conspiracy. Partisan appointment of election boards, evidence of.

" Where the course is systematically pursued of appointing on the elec-
tion boards to represent the minority or opposition party, persons not in-
dorsed by that party, and as to whose loyalty to the party whose interests
they are expected to guard there is a question, or of appointing persons
who are unable to read and write, when there would be no difficulty in
finding men well qualified in those respects, this ought of itself to be con-
sidered evidence of conspiracy to defraud on the part of the election officers."

Threetra. Clarke.... 182

INDEX. 821

Conspiracy. Partisan appointment of election boards, evidence of Continued.

" When tho law provides that each of the two political parties shall have
representation on the election board of inspectors, it is a provision to pre-
vent dishonest partisans from making false returns ; and in such case the
appointment of men incompetent to determine whether the return is honest
or not to represent the party opposed to the appointing power, tends to
prove an intent to prevent that watchfulness intended to be secured by
the statute, and raises a strong suspicion (if it does nob fully prove) of
conspiracy to falsify the returns."

McDuffie vs. Turpin ............................................. 265

"A statutory provision for allowing opposing parties to have represen-
tation on all election boards having charge of the conduct of elections is
usually deemed necessary to secure honest results, and when fairly executed
in letter and spirit may as a rnle be relied on, at least so far as counting
and returning the vote is involved. A general and willful disregard by
the appointing power either of the letter or spirit of the law raises a strong
presumption of an intent on the part of the appointing officers to afford
opportunity for fraud. * * * While the statute does not direct how the
appointing bodies shall make selections, its spirit clearly requires that in
selecting representatives of the different parties the wishes of those repre-
senting the party organization shall be considered, and that the appointees
shall be men having the confidence of their political associates. The selec-
tion of men to represent a political party on an election board who habit-
ually vote the opposite ticket, who are not trusted in their party, or who
are notoriously incompetent, is not a compliance either with the letter or
the spirit of the statute. * * * While suspicion attaches to all such
precincts, such suspicion is not sufficient to invalidate the return, in the
absence of other evidence, but it does have the effect of requiring less evi-
dence to overturn the prima facie correctness of the returns."

Hill vs. Catchings ................................................... 804

Same principle.

Buchanan vs. Manning, Forty-seventh Congress (2 Ells., 297, 337).

Donnelly vs. Washbnrn, Forty-sixth Congress (1 Ells., 458).

English vs. Peelle, Forty-eighth Congress (Mobley, 170).
And see

Thobe vs. Carlisle, Fiftieth Congress (Mobley, 527).

Barnes vs. Adams, Forty-first Congress (2 Bart., 760).
County Court Power, in West Virginia, to make a record.

The county court in West Virginia has the power to make a record of its
proceedings in regard to elections. "There is inherent in every such tri-
bunal, and necessarily incident to its very purpose and existence, the power
to make such a record as will perpetuate and make available its legitimate
action." And aside from general principles, it appears from an examina-
tion of the legislation of West Virginia on the subject, that the county
court is more than a mere returning board.

Smith vs. Jackson ..................... ; .................... ......... 18

Counties to be treated as wholes. (See Evidence and Intimidation.)

Where it is shown that there was a corrupt conspiracy on the part of the
county officers of election to have a fraudulent election held throughout
the county, and where it is shown that the conspiracy was carried out in a
number of precincts of the county, and there is no evidence in regard to
the other precincts, the presumption of legality fails as to all the boxes,
and the whole county should be thrown out.

Chalmerses. Morgan. (Views of "Mr. Ilouk) ......................... 352

Effect of court trials.

The result of a trial in a criminal case where parties were charged with
election frauds is not an adjudication binding on the House in a case
involving the same frauds.

Clayton vs. Breckinridge .................................... ........ 689

Bes inter alios acta.

Boles vs. Edwards, Forty-second Congress (Smith, 59).

Sheridan vs. Piuchback, Forty-third Congress (Smith, 200).

Spencer vs. Morey, Forty-fourth Congress (Smith, 444).

Jackson vs. Wayiie, Second Congress (C. & H., 64).

Hunt vs. Sheldon, Forty-first Congress (2 Bart., 530, 539).
Election law of South Carolina unconstitutional. (See Registration law.)

The provision of the election la w of South Carolina which provides for sev-
eral ballot-boxes, distinguished from each other only by the labels, and that
no ticket found in the wrong box shall be counted, is practically an educa-
tional test, and is hence in direct violation of the constitution of the State.

Miller vs. Elliott .......................................... ... 515

822 INDEX.

Pge.
Election not held.

Where no electiou is held votes can not be counted.
Featherston vs. Gate Ill

Votes not. counted.

Bradley vs. Slemons, Forty-sixth Congress (1 Ells. ,312).

Smith vs. Shelley, Forty-seventh Congress (2 Ells. ,32).

Smalls vs. Elliott, Fiftieth Congress (Mobley, 672).
Held by voters ivhen officers fail to appear.

Strobach vs. Herbert, Forty-seventh Congress (2 Ells., 6).

McDuffie vs. Davidson, Fiftieth Congress (Mobley, 596).
Estoppel by mearing in of contestee.

No sort of estoppel can arise from the fact that contestee was sworn in
with other members at the beginning of the session.

Clayton vs. Breckinridge 692

Evidence. What, competent to show how a vote was cast.

In the absence of direct proof as to how a voter voted, evidence showing
to what political party he belonged, whose election he advocated, whose
friends sustained his right to vote, and kindred testimony, may be admitted.

Smith vs. Jackson 27

Of how votes cast.

Porterfield vs. McCoy, Fourteenth Congress (C. &H., 270).

O'Ferrall vs. Paul, Forty-eighth Congress (Mobley, 114).

Bisbee vs. Finley, Forty -seventh Congress (2 Ells. 176,219).

Cook vs. Cutts, Forty-seventh Congress (2 Ells. 250).

Delano vs. Morgan, Fortieth Congress (2 Bart., 169).
Of declarations df voters.

What the voter said at the time of voting is admissible as part of the res
gestce ; but what he said after the day of the election, either as to his qual-
ifications or how he voted, or whether he voted, is inadmissible.

Smith vs. Jackson 27

Declarations of raters (admissible).

Vallandingham vs. Campbell, Thirty-fifth Congress (1 Bart., 230).

New Jersey case, Twenty-sixth Congress (1 Bart., 26).

Farlee vs. Runk, Twenty-ninth Congress (1 Bart., 91).

Monroe vs. Jackson, Thirtieth Congress (1 Bart., 99).

Bell vs. Snyder, Forty-third Congress (Smith, 257).

Wallace vs. McKinley (minority), Forty-eighth Congress (Mobley, 205).

Delano vs. Morgan, Fortieth Congress (2 Bart., 169).
Declarations of voters (inadmissible).

Cessna vs. Myers, Forty-second Congress (Smith, 67).

Cook vs. Cutts, Forty-seventh Congress (2 Ells., 257).

Wallace vs. McKinley, Forty-eighth Congress (Mobley, 189).

Dodge vs. Brooks, Thirty-ninth Congress (2 Bart., 92).

Newland vs. Graham. Twenty fourth Congress (1 Bart., 7).

Letcher vs. Moore, Twenty-third Congress (C. & H., 750).
In chief taken in time for rebuttal.

The rights of the House under the Constitution are not abridged by the
act regulating the manner of taking testimony in contested-election cases,
but each Congress in enforcing these rights will not depart from the terms
of the act except for cause. Where no reasons are presented for taking
testimony in chief during the time for rebuttal the committee will not
consider such testimony.

Posey vs. Parrett 189

Testimony in chief taken during the time for rebuttal should not be con-
sidered.

Mudd vs. Compton (minority report) 168

Should not be considered.

McDufne vs. Turpin 305

Bromberg vs. Haralson, Forty-fourth Congress (Smith, 365).

Page vs. Pirce (minority), Forty-ninth Congress (Mobley, 507).

Le Moyne vs. Farwell (minority), Forty-fourth Congress (Smith, 423).

Bisbee rs. Finley (minority), Forty-seventh Congress (2 Ells., 229).

Lynch vs. Vandever, Fiftieth Congress (Mobley, 659).

(But see Page vs. Pirce, Forty-ninth Congress), (Mobley, 475).
Of vote cast.

The evidence of persons who issued tickets and claim to know that they
were voted is admissible to prove that the vote of a precinct differed from
the return, and if sufficiently clear and convincing, may be conclusive of
the falsity of the return.

McDufne vs. Turpin ~*99

INDEX. 823

Page.
Evidence. Best required.

Each party should he required to produce the highest and hest evidence
obtainable.

McDuffie vs. Tnrpin (minority report) 303

Application of.
Evidence as to certain boxes can not affect others which are not assailed.

Chalmers vs. Morgan 347

(See Counties.)

Buchanan vs. Manning, Forty-seventh Congress (2 Ells., 295).

(See Intimidation.)

Testimony actually taken only to be considered, not what might have been taken.
" The House of Representatives may in a proper case grant additional time
to take testimony, but it will never, until all principles governing judicial
procedure and the hearing and determination of causes are set aside and
utterly disregarded, strengthen and bolster up a weak and feeble attempt
to annul the solemn act of election officials upon the mere assertion of a
party that he could, if he had been favored with more time, have proved
his case."

Langston vs. Venable (minority report) 497

(See Suppression of testimony.)
Ex parte affidavits.

Exparte affidavits filed by the contestant not considered by the committee,
there being nothing in the record to justify the resort to this kind of proof.

Hill vs. Catchings 806

Ex parte, inadmissible.

Spaulding vs. Mead, Ninth Congress (C. & H., 158).

Wigginton vs. Pacheco, Forty-fifth Congress (1 Ells., 8).

Blair vs. Barrett, Thirty-sixth Congress (1 Bart. 314).

Knox vs. Blair, Thirty-eighth Congress (I Bart., 526).

Todd vs. Jayne, Thirty-eighth Congress (1 Bart., 557).
Hearsay, inadmissible.

Whyte vs. Harris, Thirty-fifth Congress (1 Bart., 264).

Ingersoll vs. Naylor, Twenty-sixth Congress (1 Bart., 34).

Blair vs. Barrett, Thirty-sixth Congress (1 Bart., 316).

New Jersey case, Twenty-sixth Congress (1 Bart., 24).

Reed vs. Julian, Forty -first Congress (2 Bart., 822).

Duffy vs. Mason, Forty-sixth Congress (1 Ells., 364).

Donelly vs. Washburu (minority), Forty-sixth Congress (1 Ells., 482).

Hurd vs. Romeis, Forty-ninth Congress (Mobley, 425).
Fraud. To be eliminated from the result. (See Return.)

Returns which are tainted with fraud can not be made the foundation of
the title to a seat in the House. The result should be purged of the fraud if
practicable, and the poll only thrown out when no other alternative re-
mains but to give effect to the fraud or to reject the poll.

Atkinson vs. Pendleton < 46

At prior elections.

Frauds at prior elections and the obstruction to the taking of testimony
in prior election contests may, and often do, throw light upon the political
situation in a community, but can not be taken as an excuse for not at-
tempting earnestly in subsequent contests to comply with the rules of evi-
dence. Every election must rest upon its own merits.

Threet vs. Clarke 180

Fraud or bribery, committed by a successful candidate, should invalidate his election.
"The law ought to be held as follows: Where the friends of a successful
candidate, without collusion or combination with such candidate, engage
in fraud, bribery, intimidation, or other violations of law to influence the
election, and the number of votes affected thereby is insufficient to change
the result, the election will not be invalidated thereby; but if such candi-
date takes part in such wrongs, or confederates with those engaged therein,
and it does not appear that the election has been changed in its results
thereby, the election should be held void, and a new election ordered.
* * * In order to give the seat to the contestant, it should be necessary
to prove that the results were changed by the transactions in question,
but to unseat the participant a less amount of proof should be sufficient."

Hill vs. Catchings (views of Mr. Lacey) 811

Bribery, effect of, on validiti/ of election.

Abbott vs. Frost, Forty-fourth Congress (Smith, 605, 628).

Sullivan vs. Felton, Fiftieth Congress (Mobley, 755).

Donelly vs. Washburn Forty-sixth Congress (1 Ells., 453, 490).

824 INDEX.

Pane.

Fraud or bribery. Bribery, effect of, on validity of election Continued.

Page vs. Pirce, Forty-ninth Congress (Mobley, 491).

Lowry vs. White, Fiftieth Congress (Mobley, 024).

Duffy vs. Mason, Forty-sixth Congress (1 Ells., 361).
Intimidation. Amount of violence necessary.

" The committee holds that a citizen has a right to a free and unmolested
approach to the ballot box, and is not bound to fight his way to a polling
window, especially when to do so he must come into conflict with persons
who claim to be officers of the law, the truthfulness of which claim he has
no means of negativing, and that a candidate whose supporters have done
all in their power to make voters believe that they would suffer injury if
they attempted to vote, can not be heard to say that the intimidated voters
should not have believed the threats made to them."

Mudd vs. Compton 158

A poll can not be rejected for intimidation unless there was such a dis-
play of force as ought to have intimidated men of ordinary firmness.

Mudd us. Compton (minority report) 169

When return to be excluded.

Where a small and known number of voters were intimidated to vote
for contestee in a precinct where in any event he would have had a con-
siderable majority, the return should not be rejected. Were their number
uncertain the return should be excluded, and if a sufficient number were
so intimidated as to overcome the majority of contestee, he would not be
entitled to retain his seat.

Bowen vs. Buchanan 198

How proved.

Norris vs. Handley, Forty-second Congress (Smith, 76).

Donnelly vs. Washburn (minority), Forty-sixth Congress. (1 Ells., 502).

Smalls vs. Tillman (minority), Forty-seventh Congress (2 Ells., 490).
Must be successful.

Kurd vs. Romeis, Forty-ninth Congress (Mobley, 425).
(See Minority Report.) (76.444.)

Nprris vs. Handley, Forty-second Congress (Smith, 76).

Niblack vs. Walls, Forty-second Congress (Smith, 105).

Harrison vs. Davis, Thirty-sixth Congress (1 Bart., 341).
Effects only precincts where it exists.

Sypher vs. St. Martin, Forty-first Congress (2 Bart., 699).

Hunt vs. Sheldon, Forty-first Congress (2 Bart., 703).

Morey t*. McCranie, Forty-first Congress (2 Bart., 719).

Newsham vs. Ryan, Forty-first Congress (2 Bart., 724).

Wallace vs. Simpson, Forty-first Congress (2 Bart., 731).

Darrell vs. Bailey, Forty-first Congress (2 Bart., 754).
What is.

Page vs. Pirce (minority), Forty-ninth Congress (Mobley, 511).

Richardson vs. Rainey, Forty-fifth Congress. (1 Ells., 233).

Whyte us. Harris, Thirty-fifth Congress (1 Bart., 257).

Switzler vs. Anderson, Fortieth Congress (2 Bart., 374).

Biddle and Richard vs. Wing, Nineteenth Congress (C. & H., 506).

Bisbee vs. Finley (minority), Forty-seventh Congress (2 Ells., 219;
ib. 190).

Smalls vs. Tillman, Forty-seventh Congress (2 Ells., 435).

Smalls vs. Elliot, Fiftieth Congress (Mobley, 680).

Lee vs. Richardson, Forty-seventh Congress (2 Ells., 520).

Sheafe vs. Tillman, Forty-first Congress (1 Bart., 907).
Irregular election. When permissible.

"In extraordinary cases, and where it appears that in no other way can
the actual will of the voter be ascertained, a resort to methods not technic-
ally in accordance with statutory direction may be justifiable, and upon
proof that a full, fair, and honest election has been held by those only who
are qualified voters, under these circumstances the returns from such an
election, when duly proved, may be considered and counted. None of
those guards provided by statute to secure honest results should be neg-
lected, but when statutory provisions designed to protect qualified voters
in the exercise of their legal rights are made use of with deliberate purpose
to suppress the will of the majority, such action will be regarded as fraud-
ulent."

McDaffie vs. Turpin 290

See Gause vs. Hodges, Forty-third Congress (Smith, 305, 319).

INDEX. 825

Page.
Irregularities. Their effect on the prima facie of the returns.

" Mere irregularities in the conduct of the election, where it does not
appear that the legally expressed will of the voter has been suppressed or
changed, are insufficient to impeach officially declared votes. But a suc-
cession of unexplained irregularities and disregard of law on the part of
intelligent officials removes from the ballot-box and the official returns
that sacred character with which the law clothes them, and makes less
conclusive evidence sufficient to change the burden upou the party who
maintains the legality of the official count."

Laugston vs. Venable 437

(See Return, irregularities in.)
Irregularity in one portion of a return does not affect the rest.

Where a precinct return was irregular as to votes cast for Presidential
electors, and had been rejected entire by the county commissioners, the
committee counted the vote for Representative in Congress, which was
regularly returned.

Langston vs. Venable 440

In a county retyrn does not cause ; 's rejection.

Clark vs. Hall, Thirty-four; Congress (1 Bart., 215).
Mistake. Power of board to correct.

There is inherent in every body charged with the ascertainment of the
popular will, whether its functions be judicial or ministerial, the power to
correct an error when discovered, and to make its conclusions conform to
the facts.

Smith vs. Jackson 16

Where a county returning board in making out their abstract accidentally
omitted one precinct, but before forwarding their return discovered and
corrected their mistake, held, that this was just what ought to have been
done, and if this precinct return had been omitted it would have been
the duty of the committee to include it in the total vote. The vote of a
county cannot be thrown out for such an informality.

Bowen vs. Buchanan 196

Allowed to be corrected.

Root vs. Adams, Fourteenth Congress (C. & H.,271).

Guyon vs. Sage, Sixteenth Congress (C. & H., 349).

Colden vs. Sharpe, Seventeenth Congress (C. & H., 369).

Adams vs. Wilson, Eighteenth Congress (C. & H., 375).

Sleeper vs. Rice, Thirty-eighth Congress (1 Bart, , 473).

Archer vs. Allen, Thirty-fourth Congress (1 Bart., 169).
Notice of contest.

The recitals in the notice can have none of the sanctity and binding
force of an agreement or stipulation, and can not be construed into a con-
cession.

Featherston vs. Gate t 122

Parties should be bound by.

If any question had been raised in the notice of contest in regard to the
precinct from which the returns were not signed, and no evidence taken
to show their correctness, the committee would be right in rejecting them,
but there being no mention of this precinct in the notice, contestee should
not be required to produce any evidence in regard to it.

Langston vs. Venable (minority report) 483

Same principle.

Leib., Ninth Congress (C. & H., 165).

Stoval vs. Cabell, Forty-seventh Congress (2 Ells., 667).

McKenzie vs. Braxton, Forty-second Congress (Smith, 19).

Finley vs. Walls, Forty-fourth Congress-{Smith, 367).
Officers of election. Not sworn.

When all the officers are not shown to have been sworn, bnt no harm
has resulted, it will not vitiate the election, they being de facto officers.
And in West Virginia, where it is provided that the fact of taking the
oath must either appear on the poll-books or be proved to the satisfaction
of the commissioners of the county court before they can count the vote of
a precinct, and the county commissioners did count the vote of a precinct
when the oath was not sufficiently certified on the poll-book, it will be
presumed that they had satisfied themselves of the fact by other evidence
before counting the vote.

Smith vs. Jackson 21

Vitiates return.

Blair vs. Barrett, Thirty-sixth Congress (1 Bart., 315).

McFarland vs. Purviance, Eighth Congress (C. & H., 131).

826 INDEX.

Pag.
Officers of election. Not sworn Continued.

McFarland vs. Culpepper, Teuth Congress (C. & H., 221).
Draper vs. Johnston, Twenty-second Congress (C. & H.,710).
Sheafe vs. Tillinan, Forty-first Congress (2 Bart., 913.)
Botts vs. Jones, Twenty-eighth Congress (1 Bart., 78.)
Chapman vs., Ferguson, Thirty-fifth Congress (1 Bart., 269.)
May not be fatal.

Porterfield vs. McCoy, Fourteenth Congress (C. & H., 267).
Easton vs. Scott, Fourteenth Congress (C. & H., 281).
Draper vs. Johnston, Twenty-second Congress (C. & H.,710).
Darrall vs., Bailey, Forty-first Congress (2 Bart., 764.)
Change of.

Unwarranted changes in judges of election, made without reason or ex-
cuse, only a few days before the election, are suspicious circumstances,
but standing alone and not supported by evidence of fraud at the polls, af-
fecting the result, are disregarded, and the certified returns permitted to
stand as made.

Langstou vs. Venable , 439

Pauper. Definition of.

A pauper is one who is continuously supported in whole or in part out of
funds provided by the public authorities for that purpose.

Smith vs. Jackson 28

Person of unsound mind.

A person having sufficient intelligence to make a valid will, or to bind
himself by ordinary contracts, or to be criminally responsible for his acts
is a person of sound mind for the purposes of voting.

Smith vs. Jackson 28

Polling Place. Change of.

When the election is held at a different place from that required by law
it does not vititate theelection if injury has not resulted, and the place of
voting was generally understood.

Smith vs. Jackson 24

Change of, fatal.

Patterson vs. Belford, Forty-fifth Congress (1 Ells., 59).
Howard vs. Cooper, Thirty-sixth Congress (1 Bart., 282).
Acklen vs. Darrall, Forty- fifth Congress (1 Ells., 131).
Population. Not to be decided by election board in absence of legal determination.

Where it was provided that in all towns of over 2,000 inhabitants a trans-
ferred voter must have his transfer recorded at least ten days prior to
the election, but in all other cases might vote without such registry, held
that the election judges had no right to decide that a town was within the
exception in the absence of any legal determination of its population.

Bowen vs. Buchanan 197

Recount.

The returns of election officers are prima facie correct, and a recount
showing a different result can not be regarded unless it affirmatively ap-
pears that the ballots recounted are the same as those originally counted
and in the same condition.

Atkinson vs. Pendleton 47

In order to justify a recount it ought to appear that tke statutory re-
quirements have been complied with, or clearly shown that the failure to
comply therewith has resulted in no injury. If the ballots have been so
kept that they could not have been tampered with, the recount is entitled
to the greater credit, otherwise the original count.

McGinnis vs. Alderson (>3G

When to be demanded.

Where the statute provides for a recount at the demand of either party
the demand need not be made on the day of the announcement of the result
of the first count.

Smith vs. Jackson 15

Must appear that ballots can not have been tampered with.

Butler vs. Lehman (minority report adopted by House). Thirty-seventh

Congress (1 Bart., 353).

Gooding vs. Wilson, Forty-second Congress (Smith 80).
Acklen vs. Darrall, Forty-fifth Congress (1 Ells., 132).
Dean vs. Field, Forty-fifth Congress (1 Ells., 212).
Cook vs. Cutts, Forty-seventh Congress (2 Ells., 252).
English vs. Peelle, Forty-eighth Congress (Mobley, 170).
Wallace vs. McKiuley (minority), Forty-eighth Congress (Mobley, 210).
(See also cases of

INDEX. 827

Page.
Recount Continued.

Kliue vs. Verree, Thirty-seventh Congress (1 Bart., 386).
Archer vs. Allen, Thirty-fourth Congress (1 Bart., 169).
Sullivan vs. Feltou, Fiftieth Congress (Mobley, 757).
Kline vs. Myers, Thirty-eighth Congress. (1 Bart., 575).
Abbott vs. Frost, Forty-fourth Congress (Smith, 602).
Unofficial may be accepted.

English vs. Peelle, Forty-eighth Congress (Mobley, 171).
Frederick vs. Wilson, Forty-eighth Congress (Mobley, 403).
Unofficial not accepted.

Gooding vs. Wilson, Forty-second Congress (Smith, 79).

English vs. Peelle (minority,) Forty-eighth Congress (Mobley, 179).

Frederick vs. Wilson (minority), Forty-eighth Congress (Mobley,

406,419).
Registration law of South Carolina unconstitutional. (See Election law.)

The registration law of South Carolina is unconstitutional because it is
not a reasonable regulation of the right to vote (see syllabus).

Miller vs. Elliott 509-515

Power of legislature to enact.

" The right of suffrage is regulated by the States, and while the legisla-
ture of a State can not add to, abridge, or alter the constitutional qualifi-
cations of voters, it may and should prescribe proper and necessary rules
for the orderly exercise of the right resulting from these qualifications.
It can not be denied that the power to enact a registration law is within
the power to regulate the exercise of the elective franchise and preserve
the purity of the ballot."

Goodrich vs. Bnllock (minority report) 598

Registration and election laws.

The registration and election laws of South Carolina are reasonable and
constitutional.

Miller vs. Elliott (minority report) 537

Registration. When new certificate necessary in Florida.

A new certificate of registration is not a condition precedent to voting,
under the Florida law, when a voter has moved from one house to another
within a voting district.

Goodrich vs. Bullock 585

(Indorsed by minority.) 612

No registration in a county.

Where the governor failed to appoint a supervisor of registration for a
county, and there was consequently no registration as provided by law,
but the election was held under the old registration, and no harm appears
to have been done, held, that the vote of the county should be counted.

"The committee are clearly of the opinion that voters complying with
all other requirements of the law can not be disfranchised by the neglect
of public officials to furuish them opportunity to register."

Goodrich vs. Bullock 585

County excluded.

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 188).
On registration in general see

Gause vs. Hodges, Forty-third Congress (Smith, 304).
Hogan vs. Pyle, Fortieth Congress (2 Bart., 281).
Wigginton vs. Pacheco, Forty-fifth Congress (1 Ells., 13).
Finley vs. Bisbee, Forty-fifth Congress (1 Ells., 92).
Curtin vs. Yocum, Forty-sixth Congress (1 Ells., 418-421, 428-433).
Lowe vs. Wheeler, Forty -seventh Congress (2 Ells., 76, 137-145).
Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 188).
Frost *. Metcalfe, Forty-fifth Congress (1 Ells., 290).
Buchanan vs. Manning, Forty-seventh Congress (2 Ells., 296).
Sessinghaus vs. Frost, Forty-seventh Congress (2 Ells., 387).
McLean vs. Broadhead, Forty-eighth Congress (Jlobley, 386, 394).
Campbell vs. Weaver, Forty-ninth Congress (Mobley, 462,472).
Frank vs. Glover, Fiftieth Congress (Mobley, 655).
Smalls vs. Elliott, Fiftieth Congress (Mobley, 720).
Bell vs. Snyder, Forty-third Congress (Smith, 251).
Rejection. Constructive, by undue delay.

If by fraudulent challenges, unduly prolonged by the connivance and col-
lusion of the judges ol^he election, the voter is deprived of the opportunity
to vote, the vote should be counted. If the fraudulent exclusion of votes
would, if successful, give to the party of the wrongdoer a temporary seat

828 INDEX.

Page.
Rejection. Constructive, by undue delay Continued.

in Congress and the only penalty possible were merely a new election,
giving another chance for similar tactics, a real election might be indefi-
nitely prevented. But if, where such acts are done, the votes are counted
upon clear proof aliunde, the wrong is at once corrected and no encourage-
ment given to such dangerous and disgraceful methods.

Waddill vs. Wise 224

Residence. What constitutes.

It takes both act and intention to constitute a residence. An intention
to retain a residence which has been left must be an intention actually to
return to it and reside in it.

Smith vs. Jackson 28

Letcher vs. Moore, Twenty-third Congress (C. & H., 752).

Miller vs. Thompson, Thirty-first Congress (1 Bart., 120).

Covode vs. Foster, Forty-first Congress (2 Bart., 600).

Taylor vs. Reading, Forty-first Congress (2 Bart., G61).

Cessna vs Meyers, Forty-second Congress (Smith, 60-65).
Of corporation employes.

Where the statute provides that no person shall be deemed a resident in
any county or district by reason of being employed therein by any corpo-
ration, such employment is not to be construed as preventing anyone from
acquiring a residence at the place of his employment.

Smith vs. Jackson 32

Cessna vs. Meyers, Forty-second Congress (Smith, 64).

Campbell vs. Morey, Forty-eighth Congress, (Mobley, 226).

Barnes vs. Adams, Forty-first Congress (2 Bart, 771).
Presumption in favor of actual.

The presumption should be in favor of actual residence as against a
claimed intent to return to an abandoned residence where the intent only
appears by the act of voting.

Atkinson vs. Pendleton 56

Of students in college.

"Residence is a mixed question of fact and intention ; the fact without
also the intention is not sufficient of itself to establish a legal residence.
And it is a well-settled principle of the cases that one who leaves his home
to go to college for the purpose of an education does not from continuance
there the required time gain a residence. On the contrary, the very object
of his stay raises a presumption against such result." The question in the
case of students is ' whether they have ever given up their last residence
and undertaken to acquire another at the college. To do so they must
either directly have renounced their former home and assumed the obliga-
tions of citizens in their place of adoption, or done acts, open and acknowl-
edged, inconsistent with the one and assertive of the other. Every one
has a well-recognized right to change his place of residence, and may do
so if he proceed in consonance with known principles." Where students
testified that they had made the college town their residence, and there
was no evidence that this intention was not formed and acted on in good
faith, the committee held that they would not be justified under the state
of the evidence in rejecting their votes.

Posey vs. Parrett 190,191

Of students.

Farlee vs. Runk, Twenty-ninth Congress (1 Bart., 91).

Cessna vs. Meyers, Forty-second Congress (Smith, 64).

Duffy vs. Mason, Forty-sixth Congress (1 Ells., 377).

Campbell vs. Morey, Forty-eighth Congress (Mobley, 218-224, 237-245).

Worthington vs. Post, Fiftieth Congress (Mobley, 652).

Letcher vs. Moore, Twenty-third Congress (C. & H., 753, 844).
Of paupers (in the poorhouse).

Le Moyne vs. Farwell, Forty-fourth Congress (Smith, 418).

Wallace vs. McKinley (minority), Forty-eighth Congress (Mobley, 198).

Campbell vs. Morey, Forty-eighth Congress (Mobley, 228).
Of paupers (not acquired at poorhouse).

Monroe vs. Jackson. Thirtieth Congress (1 Bart., 101).

Covode vs. Foster, Forty-first Congress (2 Bart., 600).

Cessna vs. Myers (doubtful), Forty-second Congress (Smith, 65).

Le Moyne vs. Farwell (minority), Forty-fourth Congress (Smith, 425).

Campbell vs. Morey (minority), For^y-eighth Congress (Mobley, 235).

Sullivan vs. Felton, Fiftieth Congress (Mobley, 755).
On residence, see also

Barney vs. McCreery, Tenth Congress (C. & H., 168).

INDEX. 829

Page.
Residence Continued .

Le Moyne vs. Farwell, Forty-fourth Congress (Smith, 419).
Levy, Twenty-seventh Congress (1 Bart., 47).
Return. To 6e thrmvn out if false, tut the votes cast not necessarily lost.

Where the evidence shows a return to be false and not a true statement
of the votes cast, such return is impeached and destroyed as evidence.
But the rejection of a return does not necessarily leave the votes actually
cast at a precinct uncounted. The return being shown to be false, the
parties are thrown back on such evidence as it may be in their power to
produce to show how many votes were cast and for whom. All the votes
may thus be proved and counted, but if only a part is proved, those proved
are to be counted and the rest disregarded.

Featherston vs. Gate 103

Which primary evidence.

The county returns sent to the governor are evidence of the vote of the
county unless shown to be wrong by the primary evidence, either the
ballots themselves or the count made by the judges of election in each
precinct at the close of the election.

Mudd vs. Compton (minority report) 165

" According to the law of Maryland, the duties of the presiding judges
when assembled at the county seat are purely ministerial. They are to
add up the votes of the precinct returns on the books of the polls and to
certify the results of this addition to the governor. They can neither throw
out votes certified by the precinct judges, nor return votes not certified
by the precinct judges. It is presumed, of course, that the presiding
judges will do their work accurately, and that their returns to the gov-
ernor will contain a correct summary of the votes in their county. This
presumption is, however, merely a prirna facie one, and can be rebutted
at any time by showing that these returns were, in fact, not a correct sum-
mary of the precinct returns ; and when this is done, the returns to the
governor must be disregarded and resort had to the primary evidence of
the result of the election ; that is, to the precinct returns themselves."

Mudd vs. Compton 150

Which primary evidence.

Bisbee vs. Hull, Forty-sixth Congress (1 Ells., 316).

Bard, Fourth Congress (C. & H., 117).

Frederick vs. Wilson, Forty-eighth Congress (Mobley, 402).

Sheridan vs. Pinchback, Forty-third Congress (Smith, 206).
Their weight as prima facie evidence.

" In considering the evidence with reference to particular precinct re-
turns, it is first necessary to inquire by whom the election was held, in order
to determine what weight should be given to the returns. Returns are, as
a rule, prima facie evidence of the result ; but if the integrity of the inspec-
tors is in any way impeached, either by showing that their character is
such as to cast suspicion on their acts, or that their belief is that frauds
upon elections are justifiable, or that the manner of their selection was
such as to indicate a purpose to procure a false statement of results, then
the returns lose much of the weight that would otherwise attach to them."

McDuffievs. Turpin 264

Presumption of correctness of.

There can be no "legal presumption in favor of the unassailed boxes" in
counties where the election, taken as a whole, was not honest.

Chalmers vs. Morgan (views of Mr. Houk) 352

Only prima facie evidence.

Spaulding vs. Mead, Ninth Congress (C. & H., 159).

Bassett vs. Bayley, Thirteenth Congress (C. & H., 255).

English vs. Peelle, Forty-eighth Congress (Mobley, 235).

McDuffie vs. Davidson (minority), Fiftieth Congress (Mobley, 599).
Neglect to make.

Voters are not to be disfranchised by any neglect of the officers after
the election, if the correct vote can be ascertained.

McDuffie vs. Turpin 294

Mallary vs. Merrill, Sixteenth Congress (C. & H., 331).
Not canvassed.

Switzler vs. Anderson, Fortieth Congress (2 Bart., 374).

Shields vs. Van Home, Forty- first Congress (2 Bart., 922).

Switzler vs. Dyer, Forty-first Congres* (2 Bart., 777).

Sheafe vs. Tillman, Forty-first Congress (2 Bart., 907).

Bisbee t>. Hull, Forty-sixth Congress (1 Ells., 316).

830 INDEX.

Page.
Eeturn. Not canvassed Continued.

Lynch vs. Chalmers, Forty-seventh Congress (2 Ells., 356).

Spencer vs. Morey (minority), Forty-fourth Congress (Smith, 488).
Overthrown by testimony of voters.

Where contestant was returned as having received 139 votes in a precinct,
and 283 voters testified to having voted for him, and the testimony of the
ticket distributers indicated a still larger number, held that this is sufficient
to reject the return, and count only such votes as are proved aliunde.

Langstou vs. Venable 452

When rejected only votes proved counted.

Where the returns were rejected for fraud, and the only votes proved
aside from the returns were for contestant, held that no others could be
counted, for " it is evident that giving to contestee the vote not accounted
for would be a direct encouragement to election frauds, as it would give
him the benefit of every fraudulent vote which his friends had made it
impossible for the opposition to expose, even after the proof clearly estab-
lished fraud to such an extent as to destroy absolutely the integrity of the
official returns. In no case has such a rule been adopted."

Langston vs. Venable 465,466

When rejected what votes to "be counted,

If a return is to be rejected, and votes counted for contestant, the con-
testee should at least be given his well defined party vote, which was cast
for him.

Langston vs. Venable (minority report) 489

Impeached.

When returns are impeached they can not be received for any purpose,
but only those votes proved aliunde can be counted. " If the returns have
been falsified by the election officers it is a well settled rule of law that
they cease to have any prima facie effect, and each party can only be cred-
ited with such votes at the box in question as he may show by other evi-
dence."

Clayton vs. Breckinridge ...... 691

Fraud vitiates, and only votes proved counted.

Finley vs. Walls, Forty-fourth Congress (Smith, 388).

Washburn vs. Voorhees, Thirty-ninth Congress (2 Bart., 54).

Dodge vs. Brooks, Thirty-ninth Congress (2 Bart., 78).

Delano vs. Morgan, Fortieth Congress (2 Bart., 168).

Myers vs. Moffett, Forty-first Congress (2 Bart., 564).

Covode vs. Foster, Forty-first Congress (2 Bart., 600).

Switzler vs. Dyer, Forty-first Congress (2 Bart., 777).

Chaves vs. Clever, Fortieth Congress (2 Bart., 467).

Foster vs. Covode, Forty- first Congress (2 Bart., 519).

Ked vs. Julian, Forty-first Congress (2 Bart., 822).

Lowe vs. Wheeler, Forty-seventh Congress (2 Ells., 67).

McDuffie vs. Davidson, Fiftieth Congress (Mobley, 598).

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 180,233).

Le Moyne vs. Farwell (minority), Forty-fourth Congress (Smith, 423).

For an anomalous ruling, see Sloan vs. Rawls, Forty-third Congress

(Smith, 150).
Whole vote thrown out.

Bowen vs. De Large, Forty-second Congress (Smith, 100).

Manzanares vs. Luna, Forty-eighth Congress (Mobley, 62).

Hurd vs. Bomeis (minority), Forty-eighth Congress (Mobley, 435).
Unsigned.

An unsigned statement counted as a return by the county commissioners
was rejected by the committee.

Langston vs. Venable 444

(For minority view see Notice of contest.)
Unsigned or uncertified.

McKensde vs. Braxton, Forty-second Congress (Smith, 25).

Giddings vs. Clark, Forty-second Congress (Smith, 94).

Spencer vs. Morey, Forty-fourth Congress (Smith, 448).

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 190, 230).

Lynch vs. Chalmers, Forty-seventh Congress (2 Ells., 356, 365).

Platt vs. Goode, Forty-fourth Congress (Smith, 651).
Irregularities in.

The returns rejected by the county commissioners because they were not
made in accordance with the directory provisions of the Virginia statute
should be counted by the committee, there being no suspicion of fraud or
evidence tending to impeach their correctness.

INDEX. 831

Page.
Return. Irregularities in Continued.

Langston vs. Venable (minority report) . 483

Baird, Fourth Congress (C. & H., 116).
Richards, Fourth Congress (C. & H., 95).

Brockenbrough vs. Cabell, Twenty-ninth Congress (1 Bart., 84).
Niblack vs. Walls, Forty-second Congress (Smith, 103.)
Smith vs. Shelley, Forty-seventh Congress (2 Ells.. 20).
Mallary vs. Merrill, Sixteenth Congress (C. & H., 330).
Kooutz vs. Coft'rotb, Thirty-ninth Congress (2 Bart., 31, 144).
Boyden vs. Shober, Forty-first Congress (2 Bart., 905).
Niblack vs. Walls, Forty-second Congress (Smith, 103).
Easton vs. Scott, Fourteenth Congress (C. & H., 281).
Fenn vs. Bennett. Forty-fourth Congress (Smith, 593).
Platt vs. Goode, Forty-fourth Congress (Smith, 655, 678).
Spencer vs. Morey (minority), Forty-fourth Congress (Smith, 467).
Yeates vs. Martin, Forty-sixth Congress (1 Ells., 3*5).
Smith vs. Shelley, Forty-seventh Congress (2 Ells., 24).
Donelly vs. Washburn, Forty-sixth Congress (1 Ells., 467, 516).
Burns vs. Young, Forty-third Congress (Smith, 181).
Sloan vs. Rawls, Forty-third Congress (Smith, 153).
Abbott vs. Frost, Forty-fourth Congress (Smith, 602).
Lyon vs. Smith, Fourth Congress (C. & H., 101).
Randolph v. Jennings, Eleventh Congress (C. & H., 240).
Evidence necessary to overthrow.

"Before the official return can be properly rejected, there must be satis-
factory proof that the proceed ings in the conduct of the election or in the
return of the vote were so tainted with fraud that the truth can not be cor-
rectly ascertained from the returns. In other words, the returns must be
accepted as true until tLey are clearly shown to be false."

Goodrich vs. Bullock (minority report) 599

Statutes. Directory and mandatory.

Statutes directing the mode of proceeding of public officers are directory
merely unless there is something in the statute itself which plainly shows
a diiferent intent.

Smith vs. Jackson 23

Supervisors of election.

(See United States Supervisors).
Suppression of testimony.

Where one party suppresses testimony, strict and technical proof will
not be required of the other.

Featherston vs. Gate... 106

By dilatory cross-examination.

Where in one precinct contestant began taking testimony twenty-three
days before the expiration of his time, in pursuance to a notice contain-
ing the names of 292 persons who, it is claimed, would have testified that
they voted for him in said precinct, and the first two witnesses, the ticket
distributers, were cross-examined by the contestee throughout the entire
twenty-three days, held that the contestee is estopped from claiming that
the evidence of these ticket distributers is insufficient unless corroborated
by that of the voters themselves, he having by his own act prevented the
latter testimony from being taken.

Langston vs. Venable 450

For minority views, see Evidence.

Smalls V8. Elliott (minority), Fiftieth Congress (Mobley, 728).
The attempt of a successful candidate to suppress the evidence of frauds
committed to secure his election connects him with the frauds, and brings
him within the scope of the rule that fraud committed by a successful can-
didate invalidates the election.

Hill vs. ditchings (views of Mr. Lacey) 812

Tender. What is.

The ability to reach the window and actually tender the ticket to the
judges is not essential in all cases to constitute a good otter to vote. From
the time the voter reaches the polling place and takes his position in line
to secure his orderly turn in voting, he has commenced the act of voting.

Waddill vs. Wise 224

What necessary.

" To hold that anything short of an actual tender of the ballot to the elec-
tion officers and a rejection by them was an offer to vote would be a most
dangerous and uncertain rule, and one to which we can not give onr sanc-
tion. Where the evidence plainly establishes the fact that a legal voter

832 INDEX.

Tender. What necessary Continued.

offers his ballot to the election officers and they unlawfully reject the same,
under the precedents heretofore established such vote may be counted for
the candidate for whom the voter offered to vote."

Waddill vs. Wise (minority report) 252

Testimony taken without notice.

Question of notice may le waived.

Where depositions are found in the printed record, and no objection is
made to the Clerk of the House, or to the opposite party, the party failing
to object at the earliest opportunity, or at least within reasonable" time, so
as to put the opposite party on notice, will be deemed to have waived all
question of notice, especially when there is no offer of proof to show a
different state of facts from that shown by the depositions objected to.

Featherston vs. Cate 126,1'27

Depositions taken without legal notice should not be considered.

Featherston vs. Cate (minority report) 145

Not objected to when record printed will not be suppressed.

Lowry vs. White, Fiftieth Congress (Mobley, 6:24).
Law for talcing, strictly construed.

Cannon vs. Campbell (Mr. Thompson), Forty-seventh Congress (2 Ells.,
615).

Stolbrand vs. Aiken, Forty-seventh Congress (2 Ells., 603).

Mackey t*. O'Connor (minority), Fortv-seveuth Congress (2 Ells.,
581-592).

Bisbee vs. Finley (minority), Forty-seventh Congress (2 Ells., 229-242).

Stovell vs. Cabell, Forty-seventh Congress (2 Ells., 674).

Page rs. Pirce (minority), Forty-ninth Congress (Mobley, 477).
Law for taking, liberally construed.

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 194).

Mackey vs. O'Connor, Forty-seventh Congress (2 Ells., 566).

Page vs. Pirce, Forty-ninth Congress (Mobley, 475).

Cannon vs. Campbell, Forty-seventh Congress (2 Ells., 607).

Williamson rs. Sickles, Thirty-sixth Congress (1 Bart., 290).

Brooks vs. Davis, Thirty-fifth Congress (1 Bart., 247 j.
House of Kepresentatives has a wide discretion in determining election
cases and need not be bound by rules.

Koontzt'8. Coffroth, Thirty-ninth Congress (11 Bart., 142).

McKenzie vs. Braxton, Forty-second Congress (Smith, 21).

Dean vs. Field, Forty-fifth Congress (1 Ells., 200).

Bisbee vs. Fiuley (minority), Forty-seventh Congress (2 Ells., 203).

McDufBo vs. Davidson (minority), Fiftieth Congress (Mobley, 599).

Lowry vs. White (minority), Fiftieth Congress (Mobley, 644).
United States supervisor. Interference with.

" In every instance where a United States supervisor is prevented from
discharging his duties, as provided by statute, the committee hold that
such fact destroys the validity of the return and requires its rejection,
leaving the parties to prove the vote by other competent evidence."

Hill vs. Catchings 805

Buchanan vs. Manning, Forty-seventh Congress (2 Ells., 289).
Duties of.

Section 2029 of the Revised Statutes is not a repeal of sections 2016, 2017,
and 2018, and in no way changes the duty of the supervisors "to be and
remain where the ballot boxes are kept at all times after the polls are
opened until every vote cast at such time and place be counted, the canvass
of all votes polled wholly completed, and the proper and requisite certifi-
cates or returns made." By section 2029 the power to order arrests is taken
from United States supervisors in all places other than in cities of 20,000
inhabitants or upwards, and their duties are limited to witnessing the con-
duct of the election, the counting and making return of the result. This
includes the power and duty to be present at all times and to scrutinize
the count and return.

Hill vs. Catchings 806

Powers of.

Dean vs. Field, Forty-fifth Congress (1 Ells., 194, 223).

Lynch vs. Chalmers (minority), Forty-seventh Congress (2 Ells., 368).

Mackey vs. O'Connor, Forty-seventh Congress (2 Ells., 593).
Votes. Unlawfully rejected.

"The votes of legal voters who duly ottered to vote and had their votes
refused, the judges truthfully or falsely alleging that some one else had

INDEX. 833

Votes. Unlawfully rejected Continued.

previously voted on the iiame, should be counted for the candidate for
whom it is proved they offered to vote."

Mudd vs. Compton .................................................. 152

JVames not on poll book.

Where votes.bad been rejected because the voters who had duly applied
for registration and been registered found their names omitted from or in-
accurately copied on the poll books, and it was claimed that these votes
could not be counted because the law of Maryland makes the poll books
conclusive evidence of the right of a man to vote ; held, that the law sim-
ply lays down a rule of evidence for the guidance of the judges of election,
so as to reduce to a minimum their judicial functions. The votes should
be counted on a contest.

Mudd vs. Cornpton .................................................. 153

- Improperly rejected.

Where votes were rejected by the j udges because of real or assumed doubts
as to the identity of the voters presenting themselves; held, that when
their identity is clearly established these votes must be counted for the
candidate for whom they were tendered.

Mudd vs. Coiupton .................................................. 155

"Whenever a voter did tender his vote and his name was upon the list
of voters furnished to the judges of election, although the middle name or
initial might be wrougly entered, still his vote should be counted as it
should have been received by the judges, the object of registration being
for the purpose of identification of a voter, or if the name given by the
voter was "idem sonans with the name registered. * * The vote of no
person whose name did not appear, either properly 'or at least by ' idem,
sonans,' could have been received by the judges, nor can they be counted
by us."

Mudd vs. Compton (minority report) ................................. 166

A lawful vote properly tendered and unlawfully excluded may be counted
on a contest.

Waddill rs. Wise .................................................... 223

Not cast through lack of time. (See Rejection).

When votes are not cast through lack of time for all the voters to vote,
if the lack of time is due to the fraudulent action of the election officers or
partisans of the successful candidate, and the votes lost would be sufficient
to change the result, the election should be declared void. If the lack of
time is not due to fraud, the established rule is that the election must stand;
but in this case the minority recommend the application of a different
rule, and that the election should be declared void, though there was no
fraud.
Waddill vs. Wise (minority report) .................................... 252

Where there were two lines of voters, one white and one colored, and
the judges required them to vote alternately, and the colored line being
much the longer there was still a large number of voters in it who had
not voted at the close of the polls, and the testimony showed that most of
them were intending to vote for contestant, but they themselves were not
called as witnesses ; held, that their votes could not be counted for contest-
ant, but if their number had equaled or exceeded the plurality returned
for the contestee, so that the legality of the election depended on them, it
would invalidate his election with no further proof and make a new elec-
tion necessary. (For ruling under a different state of facts see Waddill vs.
Wise.)

Langston vs. Venable . .............................................. 464

Illegally rejected.

Bisbee vs. Finley, Forty-seventh Congress (2 Ells., 174, 227).

Frost vs. Metcalfe, Forty-fifth Congress (1 Ells., 291).

Niblack vs. Walls, Forty-second Congress (Smith, 104).

Wallace vs. McKinley, Forty-eighth Congress (Mobley, 193).

Bell vs. Snyder, Forty-third Congress (Smith, 251).

Smalls vs.'Elliott (minority), Fiftieth Congress (Mobley, 709).
Presumption of legality.

Smith vs. Jackson ................................................... 27

Draper t-. Johuston, Twenty-second Congress (C. & H.,706).

H. Mis. 137 - 53

834 INDEX.

Page.
Votes, Presumption of legality Continued.

Cook vs. Cutts (Mr. Rauney), Forty-seventh Congress (2 Ells., 266).

New Jersey case, Twenty-sixth Congress (1 Bart., 24).

Cessna vs. Meyers, Forty-second Congress (Smith, 61).

Le Moyne vs. Farwell, Forty-fourth Congress (Smith, 411).

Finley vs. Bisbee, Forty-fifth Congress (1 Ells., 91).

Anderson vs. Reed, Forty-seventh Congress (2 Ells., '286).
Evidence, how much to prove illegal.

Gooding vs. Wilson, Forty-second Congress (Smith, b2).

New Jersey case, Twenty-sixth Congress (1 Bart., 25).

Wallace vs. McKinley, Forty-eighth Congress (Mobley, 188).

Lowe vs. Wheeler, Forty-seventh Congress (2 Ells., 76).

Kurd vs. Romeis, Forty-ninth Congress (Mobley, 424).

O'Ferrall vs. Paul, Forty-eighth Congress (Mobley, 114, 156).

Botts vs. Jones, Twenty-eighth Congress (1 Bart., 74).
Rejected.

Persons otherwise qualified as voters who attempted to get certificates of
registration and were prevented by the action of the registering officers,
were legal voters, and if they tendered their votes to the judges of election
and were refused, their votes could be counted on a contest.

Miller vs. Elliott 515

Votes not registered. Presumed to be properly rejected.

Where votes were rejected because their names were not on the registra-
tion list, in the absence of proof to the contrary there is a legitimate pre-
sumption that they were properly rejected.

"It has been repeatedly decided by the House of Representatives that
the acts of proper officers, acting within the sphere of their duties, must
be presumed to be correct, unless shown to be otherwise."

Goodrich vs. Bullock (minority report) 613

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