UNIVERSITY OF CALIFORNIA
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TO THE

MISCELLANEOUS DOCUMENTS

OF THE

HOUSE OF REPRESENTATIVES

FOR THE

SECOND SESSION OF THE FORTY-SEVENTH CONGRESS.

1882-'83.

WASHINGTON:
GOVERNMENT FEINTING OFFICE.

1883.
79A

INDEX TO HOUSE MISCELLANEOUS DOCUMENTS.

CONTENTS OF THE VOLUMES.

VOL. 1 . . Xos. 1 to 18 inclusive, except Xos. 6 and 9.

VOL. 2..No. 6, parti.

VOL. 3.. No. 6, part ~2.

VOL. 4 . . Xos. 19 to 38 inclusive, except Nos. 26, 27,

28, 30, 31, 32, 33, 34, 35. and 37.

VOL. 5,-Xo. 26.

VOL. 6.. No. 27.

VOL. 7-.Xo.28.

VOL. 8. .Nos. 30, 31, 32, 33, and 34.

VOL. 9..Xo. 35.

VOL. 10.- Xo. 37.

VOL. 11 .. Xos. 39 and 40.

VOL. 12.. No. 41.

VOL. 13 .. Xo. 42. Boports of the Tenth Censnjs.

VOL. 14.. Xo. 43.

VOL. 15.. Xo. 44.

VOL. 16. .Xo. 45, part 1.

VOL. 17. .Xo. 45, part 2.

VOL. 18. .Xo. 45, part 3.

VOL. 19.. No. 45, part 4.

INDEX TO THE DOCUMENTS.

Subject.

Vol. , No. ! Part.

Alabama, testimony in the contested-election case of John
W. Jones vs. Charles M. Shelley, from the fourth district
of the State of ,

Ames, J. G., communication from, et al., relative to publica-
tion and distribution of public documents

Appropriations, new offices., &c., list of, made during the sec-
ond session of the Forty-seventh Congress

Appropriations, letter from the Commissioners of the District
of Columbia, transmitting estimates of. (See H. Ex. Doc.,
Vol. 17.)

Baird, Spencer F., Secretary of the Smithsonian Institution,
communication from, et al., relative to publication and dis-
tribution of public documents ...j 1

Bullion certificates, remarks of Hon. H. C. Burchard, Director

of the United States Mint, in relation to 4

Burchard, Hon. H. C., Director of the United States Mint, re-
marks of, in relation to bullion certificates 4

Census, reports of the Tenth 13

Centennial, letter from the Secretary of the Smithsonian In-
stitution relative to the exhibit of the United States execu-
tive departments at^the 4

Claims, Court of:

Statement of judgments rendered by the, for year ending

December 3,1881 ." 1

Statement of judgments rendered by the, for year ending
December 3,1882 *. ' 4

21
12

36
9

12
22
22

42*
20

5
25

2-4807-8

INDEX TO MISCELLANEOUS DOCUMENTS.

Subject.

Vol.

No.

Part.

Clerk of the House of Representatives, report of expenditures

by the, from December 5, 1881, to June 30, 1882 1 11

Commercial Relations, reports from the Consuls of the United
States on the commerce, manufacture, &,c., of their con-
sular districts It 39

Commissioners of the General Land-Office, letter from the,
relating to railroads not completed within the time fixed

bylaw 1 17

Commissioners of the District of Columbia, letter from the, 9

transmitting estimates of appropriations. (See Ex. Doc.,
Vol. 17.).

Committees, list of standing and select 1 2

Congress, list of reports made to 1 4

Consular reports 4 19

Consuls of the United States, reports from the, on the com-
merce, manufactures, &c., of their consular districts 11 39

Contested elections :

Digest of cases of, with index 9 35

Testimony in the case of John W. Jones vs. Charles M.
Shelley, from the fourth district of the State of Ala-
bama 4 20

Court of Claims :

Statement of judgments rendered by the, for year end-
ing December 3, 1881 1 5

Statement of judgments rendered by the, for year end-
ing December 3, 1882 4 25

Decisions, rendered by the First Comptroller of the Treasury. 10 37
District of Columbia, letter from the Commissioners of the,
transmitting estimates of appropriations for the. (See Ex.

Doc., Vol. 17.) 9

Documents :

Letter from the Doorkeeper of the House of Represent-
tatives, transmitting a list of, in the folding-room of

theHouse 1 7

Letter from J. G. Ames, Spencer F. Baird, and A. R. Spof-

ford, relative to the publication and distribution of ..... 1 12
Doorkeeper of the House of Representatives: .

Letter from the, transmitting a list of documents in

the folding-room of the House 1 7

Inventory of public property in charge of the 1 7

E.
Elections :

Testimony in contested case of John W. Jones vs. Charles

M. Shelley, from the fourth district of Alabama 4 21

Digest of cases of contested, with index of same 9 25

Entomological Commission, third report of the 15 44

Eulogies :

Upon the life and services of Hon. William M. Lowe, de-
ceased 8 30

Upon the life and services of Hon. J. T. Updegraff, de-
ceased 8 31

Upon the life and services of Hon. Godlove S. Orth, de-
ceased 8* 32

Upon the life and services of Hon. R. M. A. Hawk, de-
ceased 8 33

Upon the life and services of Hon. John W. Shackelford,

deceased 8 34

Expenditures, letter from the Clerk of the House of Repre-
sentatives, transmitting a report of the, of the House from
December 5, 1881, to June 30, 1882 1 11

INDEX TO MISCELLANEOUS DOCUMENTS.

Subject.

Vol.

No.

Part.

First Comptroller of the Treasury :

Letter from the, transmitting a report of the expenses of
the illness and death of James A. Garfield, late Pres-
ident of the United States 1 14

Decisions rendered by the, with appendix (Vol. Ill, 1882).. 10 37
Fish Commission, bulletin of the United States (Vol. II, 1882) . . 11 40
Folding-room of the House of Representatives, list of docu-
ments in the ,. 1 7

Garfield, James A., letter from the First Comptroller of the
Treasury, transmiting a report of the expenses of the ill-
ness and death of, late President of the United States 1 14

General Land Office, letter from the Commissioner of the, re-
lating to railroads not completed within the time fixed by

law 1 17

Geological Survey :

Bulletin of the, of the United States 1 16

Monographs of the, of the United States, Vol. VI 14 43

Hawk, Hon. R. M. A., eulogies upon the life and services of,
late a member of the House of Representatives from the

fifth district of the State of Illinois 8 33

House of Representatives :

Letter from the Clerk of the, transmitting a report of the
expenditures of the, from December 5,; 1881, to June

30,1882 1 11

List of members of the, arranged by States 1 1

List of members of the, arranged alphabetically, show-
ing the committees of which they are members 1 3

List of standing and select committees of the. 1 2

Illinois, eulogies upon the life and services of Hon. R. M. A.
Hawk, late a member of the House of Representatives from

the fifth district of the State of ' 8 33

Indiana, eulogies upon the life and services of Hon. Godlove
S. Orth, late a member of the House of Representatives

from the ninth district of the State of 8 32

Indians, memorial of the Creek Nation of, relating to the

allotment of lands in severalty 1 18

Interior Department :

Bulletin of the United States geological survey, from the. 1 16
Letter from J. G. Ames, superintendent of documsnts of
the, 'et al., relative to the publication and distribution

of public documents 1 12

Reports of the Tenth Census : 13 42

< J.

Judgments :

List of, rendered by the Court of Claims for the year end-
ing December 3,*1881 1 6

List of, rendered by the Court of Claims for the year end-
ing December 3, 1882 *. 4 25

Lands, public, existing laws of the United States, of a general
and permanent character, and relating to the survey and
disposition of the. (H. R. Ex. Doc. 47, Forty-sixth" Con-
gress, third session) 16 45

INDEX TO MISCELLANEOUS DOCUMENTS.

Subject.

Vol. No.

Laws, the existing, of the United States, of a general and per-
manent character, and relating to the survey and disposi-
tion of the public domain. (H. K. Ex. Doc. 47, part 1, ]
Forty-sixth Congress, third session ) I 16 45

Librarian of Cengress, letter from A. R. Spoiford, the, et aL,
relative to the publication and distribution of docu-
ments 1 12

List of appropriations for new offices, &c 4 36

List of members of the House of Representatives, arranged i
by States ; 1 1

List of members of the House of Representatives, arranged
alphabetically, showing the committees of which they are
members 1 3

List of reports made to Congress 1 4

List of standing and select committees of the House of Repre-
sentatives 1 2

Lowe, Hon. William M., eulogies upon the life and services
of, late a member of the House of Representatives from the i

. eighth district of Alabama 8 30

Memorial of the Creek Nation of Indians, relating to the al-
lotment of lands in severalty 1 18

Memorial of the Tice Manufacturing Company 1

Military Academy, report of the Board of Visitors to the, for

yearl882 4 -,'4

Military district, the Virginia, in Ohio, papers designed to
illustrate the necessity for the passage of bill H. R. 7015, re-
lating to the 1 10

Mint, remarks of Hon. N. C. Burchard, Director of the United

States, relative to bullion certiti cat es 4 22

Monographs, of the United States Geographical Survey (Vol.

VI) * 14 43

National Soldiers' Home, letter from the Board of Managers
of the, transmitting the annual report of the operations of
the, for the fiscal year ending June 30, 1882 1 13

Ne\v offices, appropriations, &c., list of, made during the sec-
ond session of the Forty-seventh Congress 4 36

North Carolina, eulogies upon the life and services of Hon.
John W. Shackelford, late a member of the House of Repre-
sentatives from the third district of the State of : 8 34

Offices, new, appropriations, &c., list of, made during the sec-
ond session of the Forty-seventh Congress 4 36

Ohio, Virginia military district in :

Papers designed to show the necessity for the passage of

bill H.R. 7015, relating to the.. 1 10

Eulogies upon the life and services of Hon. J. T. Upde-
graft', late a member of the House of Representatives

from the sixteenth district of the State of 8 31

Order, questions of, raised and decided in Committee of the

\VholeHouseougeueralappropriatiouaudrevenuebills.. 4 33
Orth, Hon. Godlove S., eulogies upon the life and services of,
late a member of the House of Representatives from the
ninth district of th State of Indiana 8 32

Population, statistics of the, of the United States at the
Tenth Census ... 13! 42

TO MISCELLANEOUS DOCUMENTS.

VII

Subject.

No.

Part.

Public property, letter from the Doorkeeper of tlie House of
Representatives transmitting an inventory of, in the fold-
ing-room of the House ....... .............

Questions of order, raised and decided in Committee of the
Whole House on general appropriation and revenue bills..

Railroads, letter from the Commissioner of the General Land
Office, transmitting a report of, not completed within the
time fixed by law ...... ...............................

4
1

38
17

Rebellion War of the. (Series 1, vol. 8.)

Rebellion War of the. (Series 1, vol. 9.)

Reports :
Of the Tenth Census

Consular . .... ........................

First Comptroller of the Treasury, of expenses of the ill-
ness and death of James A. Garh'eld, late President of
the United States .

List of, made to Congress.

Of Tariff Commission

2; 3

1,2,3,4,5

Of the Clerk of the House of Representatives, of expend-
itures by him from December 5, 1881, to June 30, 1882 ..
Of the Smithsonian Institution . .

1
5

11
26

Of Board of Visitors to the United States Military Acad-
emv for year 1882 ......... . . .

Rivers and Harbors, letter from the Secretary of War rela-
tive to certain works on ...............

Shackelford, Hon. John W., eulogies upon the life and serv-
ices of, late a member of the House of Representatives from
the third district of the State of North Carolina

Smithsonian Institution:
Letter from Spencer F. Baird, Secretary of the, relative
to the publication and distribution of public documents.
Letter from the Secretary of the, relative to the exhibit
of the United States at the Centennial Exhibition

12
20

Annual Report of the .... .. ............ .......

Soldiers' Home, letter from the board of managers of the Na-
tional, transmitting the annual report of the operations of
the for fiscal year endin< r June 30,1882 . . . ......

Spoftbrd, A. R., Librarian of Congress, letter from, et al. s
relative to the publication and distribution of public docu-
ments . ........................

T.
Tariff relating to manufactured articles subject to duty . .'

Tariff Commission report of the .......

2,3

1 2 3 4,5

Tice Manufacturin"' Company, memorial of the ..

Treasury :
Letter from the First Comptroller of the, transmitting a
report of the expenses of the illness and death of James
A. Garfield late President of the United States

Decisions of the First Comptroller of the, with appendix.
(Vol. Ill, 1882.) . ...

Updegraff, Hon. J. T., eulogies upon the life and services of,
late a member of the House of Representatives from the
sixteenth district of the State of Ohio..

VIII

INDEX TO MISCELLANEOUS DOCUMENTS.

Subject.

Vol.

No.

Part.

Virginia military district in Ohio, papers designed to illus-
trate the necessity for the passage of bill H. R. 7015 relat-

War of the Rebellion. (Series 1, vol. 8.)

War of the Rebellion. (Series 1, vol. 9.)

War, Secretary of, letter from the, relative to certain works
on rivers and harbors

47TH CONGRESS, ) HOUSE OF REPRESENTATIVES. ( Mis. Doc.
2d Session. J ( No. 35.

DIGEST OF ELECTION CASES.

CASES

CONTESTED ELECTIONS

IK THE

HOUSE OF REPRESENTATIVES,

FORTY-SEVENTH CONGRESS,

FROM

1880 TO 1882, INCLUSIVE.

COMPILED BY J. H. ELLSWORTH, CLERK TO THE COMMITTEE ON ELECTIONS,

UNDER ACT APPROVED MARCH 3, 1883.

WASHINGTON:

GOVERNMENT PRINTING OFFICE.
1883.

FORTYSEVENTH COISTORESS

COMMITTEE ON" ELECTIONS.

William H. Calkins, of Indiana.
George C. Hazelton, of Wisconsin.
John T. Wait, of Connecticut.
William G. Thompson, of Iowa_.
Ambrose A. Kanney, of Massachusetts.
James M. Ritchie, of Ohio.
Augustus H. Pettiboue, of Tennessee.
Samuel H. Miller, of Pennsylvania.

Ferris Jacobs, jr., of New York.

John Paul, of Virginia.

Frank E. Beltzhoover, of Pennsylvania.

Gibson Atherton, of Ohio.

Lowndes H. Davis, of Missouri.

George \V. Jones, of Texas.

Samuel W. Moulton, of Illinois.

JAMES H. ELLSWORTH, Cleric.

DIGEST OF ELECTION CASES.

FORTY-SEVENTH CONGRESS, FIRST AND SECOND SESSIONS.

PAUL STROBACH vs. HILARY A. HERBERT.

SECOND CONGRESSIONAL DISTRICT OF ALABAMA..

Contestant claimed among other things that the vote of a county should be thrown out
because the proper officers failed to give notice of the election, and appoint
managers ; and that a number of votes were counted for Herbert, contestee, which
were spelled Hebert.

Held, That where the statutes of a State provide that when for any cause managers
and other officers of election are not appointed, the qualified electors present may
elect them ; and it appears that this was done and an election held at the time and
place fixed by law, such vote of such county must be counted. That as to the
ballots printed Hebert, the evidence shows that they were printed so by mistake
of the printer, that no person of like name was then being voted for or was a can-
didate, and that the ballots were intended to be cast for Herbert, and must be
counted for him.

The House adopted the report.

JUNE 27, 1882. Mr. RANNEY, from the Committee on Elections, sub-
mitted the following

REPORT:

The Committee on Elections, to whom the above cause was submitted,
beg leave to report that they have examined with care the testimony in
the case and the able and elaborate arguments submitted, and they
have come to the conclusion that the contestee is entitled to the seat
he holds.

Your committee do not deem it necessary to enter into any detailed
discussion of the case. A few statements will show sufficient grounds
on which to rest the conclusion they have reached.

The contestee in his brief claims that after making allowance for, and
giving full effect to, all the evidence in the case he is elected by 3,357
votes.

Contestant is represented by Abraham & Mayer and Robert G. In-
gersoll.

Messrs. Abraham & Mayer claim in their brief that Mr. Strobach is
elected by 938 votes. This majority is obtained by making mauy al-
lowances and deductions which they contend are justified by the evi-
dence. Your committee do not wish to be considered as approving or

6 DIGEST OF ELECTION CASES.

disapproving the positions taken by counsel, which are not specially
discussed. It is sufficient for the purposes of this case to notice two of
the items in the count made by Messrs. Abraham & Mayer. They
throw out the vote of Escambia County, by which contestee is made to
lose a majority, as given by the returns, of 634, and they count off from
Herbert 1,190 votes in Pike County, on the alleged ground that Her-
bert's name was spelled Hebert instead of Herbert in this number of
ballots.

As to Escambia County, by the law of Alabama it is the duty of the
sheriff, judge of probate, and clerk of the circuit court to give notice of
an election and appoint managers. This duty the sheriff, judge of pro-
bate, and clerk of the circuit court of Escambia County failed to per-
form. But by the statutes of Alabama it is provided that when for any
cause managers and other officers of election are not appointed, the
qualified electors present may elect them. It appears that this was
done and the election held ; and it further appears that ou the 30th day
of October, 1880, the chairman of the Congressional executive committee
of the Democratic party gave contestant notice that this course would
be pursued, and invited him to name the persons he desired as managers
to represent them at the different boxes. Under these circumstances,
as the law is well settled that when time and places of holding an elec-
tion are fixed by law no notice by the officials is essential, your committee
can see no good ground upon which to exclude the vote of Escambia
County.

This conclusion derives additional weight from the fact that contestant
in his notice of contest made no charge against the legality of the elec-
tion as held in Escambia County.

As to the alleged misnomer in Pike County, your committee find that
the evidence does not establish that more than fifty votes were cast in .
which Mr. Herbert's name was spelled Hebert. They further find that
these ballots were intended to be cast for Herbert; that they were
printed Hebert by mistake of the printer ; that no person of like name
except contestee was being voted for or was a candidate, and they be-
lieve that under the law and the precedents these votes were rightfully
counted for contestee. Indeed, Mr. Ingersoll, one of contestant's coun-
sel, admits they should be so counted.

If we then restore to contestee his majority in Escambia, 634, and the
votes taken from him in Pike, 1,190, he gains from these two items alone,
on the count of Abraham & Mayer, 1,824.

Deducting from this sum the majority claimed by Abraham & Mayer,
938, gives Herbert a majority of 886.

Having reached this substantial majority by making these two cor-
rections in the calculation of Messrs. Abraham & Mayer, we deem it
unnecessary to examine whether the other claims to allowances and de-
ductions made by them are well founded.

In the second brief of Mr. Ingersoll for contestant he admits that Mr.
Strobach's majority is only 463.

In the estimate by which he reaches this conclusion he also deducts
from Herbert his majority in Escambia County, to which the committee
have decided contestee was entitled. Kestoring simply the vote of this
county and making no further corrections in Mr. Ingersoll's estimates,
Herbert is elected by the difference between 463 and 634, say by 171
votes.

But there are other claims put forward in behalf of contestant, in Mr.
Ingersoll's brief, which we think equally untenable.

He deducts 177 from Herbert at Manniughani, Butler County, and
164 at Spring Hill, Butler County.

STROBACH VS. HERBERT. 7

The vote at these boxes is not siesailed in the pleadings or by the
evidence further than by a comparison with the census returns. This
comparison does not show that the vote was unduly large, but simply
that Herbert received more than the \vhite vote and Strobach less than
the colored vote. Your committee cannot consent, for such reason as
this, to disturb the returns of the regularly constituted authorities.

The restoration of the returns of these boxes, in addition to the vote
of Escambia, would leave the majority for the contestee 512, admitting
every other claim made % by counsel for contestant.

We also think it equally clear that the evidence does not establish
that 300, as is claimed for contestant in one count, or 275 votes, as is
claimed in the other, were taken from contestant and added to contes-
tee at box 2, C. H., Montgomery County. Denying this claim would
further increase the majority of contestee by 550 votes in one count and
600 in the other.

But your committee do not in any manner mean to indorse or agree
to the justice of all the other claims set up for contestee. They simply
deem it unnecessary further to examine them, having reached the con-
clusion by the examination of a few of the items of contest that con-
testee is duly elected.

Contestee would seem to have been elected by a much larger majority
than either of those given above, but they have adopted as the readi-
est mode of reaching a conclusion the plan of examining only a few of
the items claimed by contestant's counsel.

This examination, resulting as is shown above, demonstrates that,
conceding, for the sake of argument, everything else claimed by the able
counsel for contestant, the contestee was elected by a decided majority.

Having reached this conclusion, your committee do not deem it essen-
tial that they should inquire further into the matter, as the precise ma-
jority is immaterial.

The only doubt which the committee has had in regard to this case is
whether the irregularities and frauds alleged and appearirfg in evidence-
were not sufficient to render the election of contestee void.

Contestant has arrayed the schemes of fraud conceived and executed'
in the election held in August, 1880, and claims that the same practices
were resorted to in the November election of that year. The committee
have scrutinized closely the proof and evidence in this regard, and are
impressed with the fact that this seems to have been so to a considerable
extent. But applying the rules of law which obtain in election cases,
it is not satisfactorily proved that there was any such general scheme
of fraud which appears to have been successfully practiced in a sufficient
number of cases as to change the general result.

The statute law of the State of Alabama has also been arraigned as
wholly insufficient and inadequate to secure an honest election, and as
a safeguard against fraudulent practices which seems to be so rife in
that State. With this the committee have nothing to do, as a general
principle. But it may be permitted to say that the charge seems to be
true to a lamentable degree. The law seems to be quite severe as against
the elector. But as regards the officers and managers of election, there
appears to be no adequate provision to insure fidelity and honesty of
action, or to punish derelictions of duty.

The committee have felt bound, however, to follow the law as it
stands.

The committee unanimously recommend the adoption of the following
resolution :

Resolved, That contestant be allowed to withdraw his contest without
prejudice.

8 DIGEST OF ELECTION CASES.

ALGERNON A. MABSON vs. WmLIAM C. GATES.

THIRD CONGRESSIONAL DISTRICT OF ALABAMA.

Contestant served notice of contest on couteatee on December 8, 1880, and contestee
filed his answer on January 5, 1881. On February 1, 1881, contestant commenced
taking testimony and" took the depositions of eight witnesses, all apparently on
the same day. No other witnesses appear to have been examined for contestant.
On March 3, 1881, contestee took the depositions of witnesses in reply. This was
all the evidence adduced, except some certificates.

In January, 1882, the clerk of the Committee on Elections served on contestant notice
to file his brief. On the day designated for filing the brief, contestant's attorney
appeared before the committee and applied for one week more in which to file
same, which was granted ; and at the expiration of that time contestant appeared
and applied for further time in which to take further testimony, and filed an affi-
davit in support thereof. This motion was denied for reasons stated. After-
wards contestant filed a supplemental affidavit covering some of the objections
pointed to the former.

Held, That the application came too late ; that parties should be bound by a reasonable
degree of diligence ; that it would be dangerous to establish a precedent allowing
parties to contests after submitting their case to ascertain the grounds upon which
he had been overruled, and to then supplement his application by a new affida-
vit, avoiding the decision, and thus open up the case again.

The House adopted the majority report.

APRIL 7, 1882. Mr. CALKINS, from the Committee 011 Elections, sub-
mitted the following

E E P B T:

The Committee on Elections, to ichom was referred the above-entitled con-
tested-election case, have had the same under consideration, and beg leave
to make the following report :

The case was referred by the full committee to a subcommittee to
read the proofs aiid hear the arguments and make a report thereon.
Mr. Atherton, from the subcommittee, made the following report to the
full committee, viz :

MABSON ve. GATES.

The subcommittee on Elections, to whom was referred the matter of the contest of A. A. Mab-
son vs. W. C. Oates, of third district of Alabama, submit the following report :

W. C. Gates and A. A. Mabson were opposing candidates for a seat in the Forty-
seventh Congress from the third Congressional district of Alabama at the November
election, A. D. 1880.

By the returns of said election, as certified to the secretary of state, Mr. Oates re-
ceived 10.614 votes and Mr. Mabson received 5,636 votes, leaving a majority for the
former of 4,988.

On the fcth day of December, A. D. 1880, Mr. Mabson caused to be served on Mr.
Oates notice of his intention to contest said election.

In said notice said contestant specified as the grounds of contest, substantially, that
in certain precincts particularly named, in the counties of Lee, Barbour, Eussell,

MABSON VS. GATES. 9

Henry, Coffee, Datt \ Geneva, in said district, the inspectors of election willfully
and fraudulently macu Ise statements as to the result of said election, returning for
the contestant a much _ jss, and for the contestee a much greater, number of votes
than they respectively received ; that in one precinct (named) the inspectors refused
to open the polls and hold an election, and, acting in concert with evil-disposed per-
sons, by fraudulent representations, threats of violence, and of criminal prosecutions,
prevented other persons from opening the polls and carrying on an election, whereby
a large number of persons who desired to vote for contestant were prevented from ex-
ercising the right ; that the canvassing officers improperly rejected the returns of cer-
tain precincts by reason of alleged informalities in the returns, and that the votes so
unlawfully returned and manipulated were. tabulated and included in the estimate
bv. the canvassing officers, and formed 'a part of the vote upon which the secretary of
stare found, ascertained, and certified to the election of contestee.

He also alleged that the board of officers, consisting of the judge of probate, sheriff,
and clerk of the circuit court in said counties (except in three precincts), fraudu-
lently, and for the purpose of giving the contestee an undue advantage, appointed in-
spectors of elections from the party to which the contestee belonged only, and refused
to appoint any of the same (except as aforesaid) from the opposite party.

That but for the fraud, intimidation, and misconduct aforesaid, the majority of the
contestant would have been '2,500 over the contestee.

On the 5th day of January, A. D. 1881, the contestee filed an answer to said notice-
denying generally the allegations thereof; and specifically denying that lawful votes
given for the contestant had not been counted for him, or that votes not given for con-
testee had been counted for him : admitting that no election had been held in the
precinct complained of, but denying that the omission had been the result of any
intention to injure the contestant; admitting that the board charged with the duty of
appointing inspectors were members of the same political party with contestee, but
denying that they acted dishonestly, or contrary to law, and averring that they
honestly and property exercised their power of appointment, and did in fact appoint
inspectors from all political parties when practicable so to do.

Contestee avers that his majority was 5,000 over contestant, and that the latter ad-
mitted he was not elected.

These were the substantial issues joined between the parties, and on the 1st day of
February, 1881, or nearly four weeks after the answer was filed, contestant commenced
taking testimony before the probate judge of Lee County, Alabama, and took the tes-
timony of eight witnesses, relating to the election in certain precincts in that county.
All of the witnesses appear to have been examined on the same day ; at least no con-
tinuances are noted by the officer. No other witnesses appear to have been examined
for contestant : and on the 3d day of March, A. D. 1881, the contestee took the evi-
dence of certain witnesses in reply, relating to the election in the same precincts.

The only other evidence adduced in addition to the above consisted of the certifi-
cates of certain persons purporting to 'be supervisors of election for that district, but
the record fails to disclose who offered same, or how the certificates got into the
report.

But how they got in, or whether these certificates of the supervisors of election are
to be received as evidence, is immaterial in the view taken of the case by the com-
mittee.

The case stood in this condition until the day of January, A. D. 1882, when the
clerk of the committee served on contestant notice to file a brief of his argument

herein on the day of , A. D. 1882. On that day his attorney appeared before

the committee on .his behalf, and made an application to continue the case for one
week longer, which was granted, and at the expiration of the time the contestant,
with his attorney, appeared before the committee and made an application orally that
time be granted the contestant to take further testimony, or that the committee would
recommend to the House the appointment of a commission to proceed to the third dis-
trict of Alabama, and investigate the matters alleged in the notice of contest, and
accompanied said oral request with an affidavit of the contestant in support thereof,
stating that he was in Washington, D. C., from the opening of the session until the
holiday recess ; that he was appointed a master in chancery by the circuit court of
the United States, which commenced its session in Mobile, January 10, 1882, and had
to be there at the time ; that shortly thereafter he got sick, went to Union Springs,
did not return to Mobile till January 30, 1882, and did not believe the case would be
taken up by the committee until the testimony" was printed ; that he had used due
diligence to take his testimony in the case in time, but could not for the reason that
no register in bankruptcy, or judge of a United States court, resided in the district,
and that he had to rely on State officials, who all belonged to the same political party
with contestee, and all of them were unfriendly to him and to his contest, because
they all had been elected by the same unlawful methods that had seated the contesteer
and defeated the contestant ; that he had subpoenaed 200 witnesses before H. H. Smith,
a notary public, and that they had been examined, and the deposition were withheld;

10 DIGEST OF ELECTION CASES.

that he owed $15 thereon and had .paid $45, and that Smith had agreed to forward
them without further payment, and that contestant was ignorant of the reason why
they were not forwarded,

That on June 20, 18dl, he subpoenaed 250 witnesses before W. A. Baldwin, mayor of
Union Springs, and that, the point being made, Baldwin refused to take the deposi-
tions, because he was a relative of contestant ; that he did not take further testimony,
because he thought he could procure no officer to take them that would be even as
favorable to him as Baldwin ; that contestant made application to the probate judge
of Bnllock County to take testimony, but that he refused to do so, because he was
elected to office by the same unfair methods that defeated contestant. He further
alleged ttjat after his time for taking testimony had expired, and on February 28,
1881, he applied to the probate judge of Russell County to take his depositions, and
that he refused because the time had expired ; that the" time allowed by the statutes
for taking depositions was totally inadequate ; that it was necessary to examine at
least 1,000 witnesses to show how the electors voted.

That it would appear, by a report of the Senate Committee on Privileges and Elec-
tions of the Forty-third Congress that the elections in said State were tainted with
fraud and unfairness ; that the same state of things continued and existed at the elec-
tion of November 2, 1880, as an investigation of said election would fully show.

The first question presented for consideration is the preliminary one of granting
time to the contestant to take further testimony, or of appointing a commission to
take the same.

Touching the first proposition, has the contestant shown such degree of diligence
as to induce the House, under well-established precedents, to grant an extension of
time ; or has he been guilty of such want of diligence that his application should be
denied? In the report of the contested-election case of Boles vs. Edwards, prepared
by Mr. Hazelton, it is said:

"To say nothing of the terms of the law * * * touching the extending of the
time fixed to allow supplementary evidence, which clearly relates to cases in which the
applicant has taken some evidence, that is to say, has made some use of the time
given him, the policy of the House has been adverse to granting extensions. Procras-
tination in these cases diminishes the object of investigation, and cheapens the value
of the final decision. The law is intended to furnish ample opportunity for taking
testimony. Parties should be held to a rigid rule of diligence under it, and no exten-
sion ought to be allowed where there is reason to believe that had the applicant
brought himself within such rule there would have been no occasion for the applica-
tion." (Smith's Cont. El. Cas., 18.)

In Giddings vs. Clark the Committee on Elections, in a report prepared by Mr. Mc-
Crary (among other things), say:

"That no such extension should ever be granted to a sitting member unless it ap-
pears that by the exercise of great diligence he has been unable to procure his testi-
mony, and that he is able, if an extension be granted, to obtain such material evi-
dence as will establish his right to the seat, or that by reason of the fault or miscon-
duct of the contestant he has been unable to prepare his case." (Smith's Cont. El.
Cas., 92-3.)

In the contested-election case of Vallandigham vs. Campbell it was held :

"That the fact that the sitting member was a member of the previous Congress, and
attended to his duties as such during a part of the time when by law the testimony
should be taken, furnishes no reason why further time should be granted." (1 Bart-
lett, p. 223.)

As to rule that great diligence is required to be proved to entitle the party to an
extension of time, see the case of Howard vs. Cooper. (1 Bartlett, p. 275.)

Is diligence, within the rule, shown by contestant? He allowed almost a month
to elapse after the answer was served before he took any depositions. He applied to
an officer or two to take his deposition, who refused to act, and he neither tried to
procure others, nor to have an officer of his own political party appointed by Federal
authority. He went away from Washington to attend to affairs not so important as
his contest, and left the same for a considerable time, without giving attention
thereto. Were it necessary to put the refusal to grant an extension on that ground,
the committee believe that the contestant has been guilty of such laches as to pre-
clude him from the right to take further testimony.

But in order to entitle himself to an extension of time after taking testimony, the
contestant must state what witnesses he desires to examine, give their names, their
residence, and what they will swear to, or a sufficient reason why the same is not
done. In the language of the able report in Giddings vs. Clark, 1 Bartlett, 91-94:

"The affidavit* relied on are fatally defective in this, that they do not state the
names of the witnesses whose testimony is wanted, nor the particular facts which can
be proved by their testimony."

It is also laid down as a rule, in the same case, that an applicant "should produce
the affidavit of some of the witnesses themselves " * * stating what facts are
within their own knowledge." (Same, p. 93.)

MABSON VS. GATES. 11

But in this case the affiant makes general statements, alleges facts not within his
personal knowledge, does not state the names of witnesses, their residence, or what
particular facts he proposes to prove by any of them. He alleges fraud and unfair-
ness in general terms, and does not pretend it is the same fraud alleged in his notice
of contest, and the committee think that the affidavit is fatally defective, and no ex-
tension should be granted by reason of anything therein stated.

The report of the Senate Committee on Privileges and Elections in the Forty-third
Congress is not evidence. It relates to a period long anterior to 1880.

It is not a judicial determination, and is not to be considered in determining the
application.

In Boles rs. Edwards, Smith El. Cas., 58, the contestee submitted in evidence the
report of a joint select committee, appointed by the senate and house of representa-
tives of Arkansas to investigate election frauds, and it was rejected as simply "views
of certain members of the legislature of Arkansas." So this report, if it related to
the very election in question, would be simply the views of certain members of the
Senate of the United States, and could not bind the House or furnish evidence for its
consideration. It would be to us simply hearsay and inadmissible, as laid down in
the report of Speaker Keifer in the case of Donnelly vs. Washburn, in the Forty-sixth
Congress.

The committee concede the right of the House to investigate the title of Gates to a
seat, even if Mabson has been guilty of such negligence and laches as to preclude him
from contesting lor the seat, as a party and litigant. But does his affidavit make a case
calling on the House to institute an inquiry and investigation for its own vindication^
or to purge itself of a member uuelected, in fact ?

The charges of fraud and illegality are general. At what precincts committed, or in
what counties even, is not alleged. Of what particular acts they consisted is not
stated. No witness is named who will furnish testimony of particular acts. In fact,
no witnesses are named at all.

The committee are not put in possession of a single fact of fraud or illegality, or
furnished with the medium of evidence by which the same may even seem susceptible
of proof. No case is therefore made for invoking the jurisdiction of the House to in-
vestigate in order to protect its own rights and dignity.

The application for extension of time being disposed of, the question recurs as to
the final disposition to be made of the case. In the presence of contestant the com-
mittee proposed to allow sufficient time to enable the testimony already taken to be
placed on tile if it was claimed by him that its presence might change the result ; but
it was admitted by him that the testimony aforesaid, in addition to the evidence on
file, would not overcome or materially change the majority for the sitting member,
and the committee therefore deemed it unnecessary to delay in order to put the same
on file.

And it being conceded by contestant and found by the committee that the evidence
now before it shows a large majority for Gates, the sitting member, we therefore re-
port the following resolution :

Resolved, That W. C. Gates, the sitting member, was duly elected, and is entitled to
the seat occupied by him in this House as the Representative from the third district
of Alabama in the Forty-seventh Congress.

After this report had been made and submitted, the contestant filed
a supplemental affidavit, covering some of the objections pointed out in
the report to his former application, and asking for further time to take
testimony in the district.

The affidavit having been read to the full committee, it was held by a
majority thereof that the application came too late ; that it would be
dangerous to establish a precedent allowing a contestant or contestee,
after finally submitting their cases, to ascertain from the report of the
committee the grounds upon which he had been overruled, and to then
supplement his application by a new affidavit, avoiding the decision,,
and thus open up the case again. Such a practice your committee
think would lead to interminable delays, and would transform the com-
mittee into mere advisers of the parties. The committee are of opinion
that parties should be bound by a reasonable degree of diligence, and
that there should be a time fixed beyond which the doors for the recep-
tion of ex parte affidavits or evidence should be shut. Inasmuch as there-
was no application to file additional affidavits before the subcommittee
until after its report was made, the committee are of opinion the last affi-
davit came too late, and should not be considered.

12 DIGEST OF ELECTION CASES.

Some doubts exist in the minds of the majority of your committee
about the form of a resolution which should be reported in this case for
adoption by the House. It is unnecessary to state the reasons of this
diversity of opinion. In order that* the case may speedily be disposed
of without prejudice to any one, a majority of the committee report the
following resolution for adoption by the House :

Resolved, That contestant, A. A. Mabson, have leave to withdraw his
papers without prejudice.

VIEWS OF THE MINORITY.

In the matter of contest between A. A. Mabson and W. C. Gates, from

the State of Alabama.

HOUSE OF REPRESENTATIVES,

Washington, D. C., March, 1882.

The undersigned, members of the Committee on Elections, ma-Tie the follow-
ing minority report :

It is admitted thatthe contestant herein gave the proper notice of con-
test, and within the time prescribed by law ; and that coutestee, also,
within the time required, filed his reply thereto, putting in issue all
the material allegations contained and charged in said notice of con-
test ; all of which will be found fully set forth in the majority report
herein, and the minority do not herein repeat the record. It also fully
appears from the evidence that contestant proceeded to take testimony
in the matter, and did succeed in taking considerable evidence, and
endeavored to take additional evidence, but, for reasons hereinafter set
forth, failed to procure the same.

Contestant filed an affidavit and motion that he be granted further
time to take evidence ; in which affidavit he set forth the reasons for
such motion and the diligence which he had used to procure the same.
It was found by a part of the committee that the showing was insuffi-
cient, but before the report was agreed upon, and now returned by the
majority of the committee, contestant filed another affidavit, substan-
tially the same as the first, but more in detail. This was not received
by the majority, and farther time refused, notwithstanding the fact
that contestant offered to take the evidence at his own expense.

The minority cannot agree with the majority of the committee in this
action, as we believe that contestant used due diligence in endeavoring
to procure his evidence in time, and it is shown that he was prevented
from so doing without fault or neglect on his part, and that justice to
contestant, as well as to the contestee, and all others in the district for
which the contest is made, and against whom charges of fraud and
wrong are made, demands that a full investigation be had ; and if the
charges were sustained, contestant should have his rights ; and if found
untrue, he should find no recognition here ; but truth should be known
through the investigation demanded, and we make especial reference
to the affidavit of contestant, hereto attached and made a part of this
report, said affidavit being the same submitted to the committee, and by
a majority found insufficient.

And in view of the facts the minority submit this report, and ask
that the following resolution be adopted :

MABSON VS. GATES. 13

Resolred, That A. A. Mabson be allowed further time, not exceeding
forty days, to take, at his own expense, such evidence in support of hi
said notice of contest as he may desire, and that contestee shall have
thirty days thereafter to take such evidence as he may deem proper ID
rebuttal.

WM G. THOMPSON.

A. H. PETTIBONE.

S. H. MILLEE.

JOHN PAUL.,

F. JACOBS, JR.

GEO. C. HAZELTON.

WASHINGTON CITY,

District of Columbia :

Algernon A. Mabson, being duly sworn, deposes and says that he is the contestant
in the contestedelection case of A. A. Mabson against W. C. Gates, from the third
Congressional district of Alabama, now pending in the Forty-seventh Congress.

That in support of his motion for further time in which to take testimony in said
election case, which he is advised that his counsel heretofore made before the Com-
mittee on Elections of the House of Representatives, he says that he was prevented
from sooner making this statement because of enforced and unavoidable absence from
the city of Washington ; that he was in Washington during the present session of Con-
gress until its recess, and then he was compelled to return to Alabama, to the city of
Mobile, in order to be present at a session of the circuit court of the United States,
which commenced in that city on the 10th day of the last month ; that he had been
appointed, or rather was notified by the circuit judge that he would be appointed, in
open court, general master in chancery of the court, and special master in chancery of
the Mobile and Ohio Railroad, and was required to be present at the beginning of the
session in order to receive his appointment, &c. ; that he was soon relieved from the
necessity of attending on the court, when he was attacked by sickness, viz, pneumonia,
and was by his illness precluded from traveling ; that his counsel notified him, by
letter of date the 19th of January, of the necessity of his appearing and acting in this-
case. but he had left Mobile before the arrival of the letter, being called to his home
in Union Springs by the serious illness and expected death of one of his children, and
therefore did not receive this notification until he stopped in Mobile on Monday last,
the 30th of January, when he had returned to Mobile from Union Springs ; that he did
not believe action would be taken by the committee in this case until the testimony in
the case had been printed, and believed he could be in Mobile on the 10th of last
month, and remain there two or three days, and return to Washington in due time,,
and would have done so had he not been prevented by illness from so doing; that he
arrived in Washington at 3 o'clock p. m. this 2d day of February.

Deponent avers that he used due diligence in taking testimony, and having the same
taken, during the time allowed him by law in which to take the same, and that it was.
impossible for him, for the reasons hereinafter stated, by the use of due diligence, to
have taken said testimony during said time.

With the single exception of registers in bankruptcy and judges of the United States,
court, the only officers before whom his testimony could be taken were officers under
the laws of the State of Alabama, and as neither a register of bankruptcy or judge of
a United States court resided in his Congressional district, he was compelled to rely
entirely upon the State officers before whom to have witnesses examined in his behalf;,
that the State officers, for reasons hereinafter related, are all members of the political
party to which contestee belongs, viz, the Democratic, and are all opposed to affiant
and inimical to his contest, and favorable to the contestee.

They are also opposed to the proving by testimony before any tribunal of the fraud-
ulent and illegal practices alleged in affiant's notice of contest, because they favor the
same, and were, as will be hereinafter shown, elected to their respective offices by th&
fraudulent and illegal stuffing of ballot-boxes, and oilier unlawful and fraudulent meth-
ods that are alleged in affiant's notice of contest to have been practiced in the pretended
election of contestee. Affiant therefore met with difficulties and embarrassment on>
every hand in attempting to find persons before whom his testimony could be prop-
erly taken.

Affiant avers that he duly served notice and had subpoenaed to be examined in his
behalf about two hundred witnesses, before H. H. Smith, a notary public at Ridgley,.
in Bullock County, and the same were duly examined, but the said testimony has not
been forwarded to the Clerk of the House of Representatives by the said H. H. Smith,

14 DIGEST OF ELECTION CASES.

and is not now before the committee ; and affiant avers, and so charges, that the said
testimony was withheld by reason of conspiracy and collusion between said Smith
and contestee or persons acting in his behalf; that he spoke to said Smith about for-
warding the testimony after the same had been concluded, and the said Smith made
no objection thereto and made no demand for payment of any sum of money as a pre-
requisite to his forwarding the same. That be paid the said Smith about forty-five
dollars for said service, and still owes him about fifteen dollars, but, as before stated,
the said Smith never required that this latter sum should be paid before forwarding
the testimony, and though affiant has conversed with the said Smith several times
since taking the testimony, he never gave affiant to know that the testimony had not
been forwarded as by law required, or made demand for the balance due, but on the
contrary cdhsented to forward the same without prepayment thereof. Affiant cannot
now give the names of the witnesses examined as aforesaid, because the notice in
which they are contained was delivered to the said Smith to be forwarded with the
testimony.

Affiant avers that before W. O. Baldwin, mayor of Union Springs, in Bullock County,
there were regularly subpoenaed and in attendance to be examined in his behalf, on the
20th day of January, 1881, two hundred and fifty witnesses; that he duly appeared
before said Baldwin with his said witnesses at the time named, and demanded that
the examination should proceed ; that a number of lawyers, appearing for said con-
testee, insisted before said Baldwin that he had no power to take said testimony, be-
cause he was a relative of contestant, he being, in fact, the cousin of contestant's
wife; that contestant insisted that the examination should proceed, and that the
House of Representatives might pass upon its legality ; but the said Baldwin, being
in sympathy with coutestee, and favoring the fraudulent and illegal practice by which
contestee was made to receive his certificate of election, and inimical to the contest-
ant, and with a design to embarrass and obstruct contestant, refused to take the said
testimony because he was the cousin of contestant's wife, upon objection for this rea-
son alone, made as aforesaid by the attorneys for coutestee; and affiant avers that no
officers under the laws of the State of Alabama, in said county, competent to take said testi-
mony could be found by him whom he would hare reasonable ground to belli ve would be as
reasonable and fair in taking testimony in his behalf as the said Baldwin ; and affiant avers
that the time and expense and labor of summoning and preparing to examine and causing the
attendance of witnesses wei-e without avail to him, for the reason aforesaid. Affiant made
application to the judge of probate of Bullock County, I. B. Feagiu, to take his testi-
mony, but the said Feagin, being in sympathy with the frauds committed in behalf
of said votes, refused to take the testimony for affiant, he, the said Feagin, haviug
obtained his office in the same way that contestee obtained his seat in this Congress,
in this, that though the said Feagin was actually defeated in the election in which he was a
candidate for probate judge by more than two thousand votes majority actually received by
his opponent, yet by the same fraudulent practices charged by me to have occurred
in my election he was declared elected, and now holds the office.

Though affiant's forty days had expired he still persisted in trying to take testi-
mony, in order that this houorable committee might be made to know, as far as lay in
his power to enable them to learn by legal proof, the merits of his contest, and to sus-
tain his application for further time in which to take testimony, and for this reason
before Simeon O'Neil, judge of probate of Russell County, affiant having duly served notice
upon contestee, and the said G'Neil having agreed to take his testimony, had in attendance be-
fore him, on, to icit, February 28, 1881, a large number of witnesses, but the said (fXeil,
against the protest and objections of affiant, refused to examine said witnesses, after having
issued and served subpoenas for said witnesses at expense of affiant.

Affiant avers that in taking his testimony he tried to obtain the services of one James
B. Powell, of Union Springs, Alabama, he being a Democrat in politics and there being
no Republican lawyers in his district; that he did retaiu said Powell, who agreed to
appear for him, but that when the examination of his witnesses had commenced be-
fore H. H. Smith, as aforesaid, the said Powell announced that he appeared for cou-
testee; this notwithstanding that contestee had other attorneys, as in fact all the
attorneys present wherever affiant attempted to take testimony rendered services for said
contestee ; and affiant avers that the said Oates induced the said Powell to refuse to ap-
pear for him wholly for the purpose of embarrassing and obstructing the said affiant
in the taking of his testimony. Affiant was therefore compelled to take his testimony
without the assistance of a lawyer.

Affiant submits that the time, forty days, allowed him in which to take his testi-
mony was wholly inadequate, and that the time was not fixed in contemplation lhat
cases of the character of his could or would exist. In this forty days are included
about six Sundays, leaving affiant only thirty-four working days. His charges of
fraudulent miscounting, or failing to count his votes, or counting votes cast for him
for contestee, or the fraudulent refusing to count his votes by the county supervisors
of election, involve the necessity of examining the witnesses in 24 precincts of this dis-
trict, to wit, 4 in Lee County, 4 in Russell, 6 in Bullock, 5 in Henry, aud5 in Barbour ;

MABSON VS. GATES. 15

that the said district is very large, having an area of 5,740 square miles, being 127 miles
in length, and means of communication between its different parts very circuitous, it
being supplied with no direct railway connections. For example, to go from Abbe-
ville, in Henry County, to Opelika, in Lee County, would require about 48 hours by
the most expeditious mode of travel.

In all of these precincts, except in the three as stated in his notice of contest, the
county supervisors of election had appointed only Democratic managers of the elec-
tion, with the fraudulent intent of preventing a fair election, as affiant upon oath
states, so that the party to which affiant belongs had no representative at the several
voting precincts throughout his district to see that the elections in the several pre-
cincts were honestly and lawfully conducted. Affiant avers, of his own knowledge,
that a member of the Republican party, fully competent, could be found in every pre-
cinct of his district to act as a manager of election. Therefore affiant is compelled
to prove his allegations in his notice of contest by examining persons who took down,
as far as practicable, the names of the persons who voted for him at the several pre-
cincts, and prove the frauds by this character of evidence, and in other cases where
no such account was kept to examine each voter separately and prove by his own tes-
timony for whom he cast his ballot ; that under the old law of Alabama, in existence,
he believes, for a great number of years, each ballot WHS required to be numbered
with the number of the voter's name on the poll-list, and thus, by producing in evi-
dence the ballots on the examination of the voter the fraud could be proven, a*nd it
would be only necessary to examine the witnesses where ballots had been changed.
But to prevent the detection of fraud and to facilitate the same the legislature of Ala-
bama recently repealed the law providing for the numbering of the ballots, so that
now it is, as aforesaid, necessary, in order to prove the said frauds, to examine each
witness who voted the Republican ticket.

It would therefore be necessary for affiant, in order to prove the allegations con-
tained in his notice of contest, to examine at least one thousand witnesses, in addi-
tion to those already examined, these witnesses being in localities in all parts of his
district.

Affiant submits that the testimony taken in his behalf in Lee County fully sustains
the allegations in his notice of contest, as to the precincts in that county and gener-
ally as to the character of the frauds in behalf of the contestee at the election and as
alleged by him.

Contestee avers that since the Congressional and State election occurring on a day
in November, 1874, and at which said election numerous acts of intimidation, consist-
ing of threats, violence, and murder, were committed, and which said election resulted
in placing the government of the State in the hands of persons elected by the Demo-
cratic party, nothing resembling a fair election has occurred in his district in any
election where a Republican was a candidate fos office; that this is generally known,
admitted, and boasted of by members of the Democratic party.

That in counties such as Barbour, Lee, Russell, and Bullock, in his district, where
the Republicans have majorities of thousands, it is utterly impossible for them to elect
even a justice of the peace in any precinct.

They cast their ballots, but the ballots are not counted at all, or are counted for the
opponent of the person voted for. Affiant states that if he is permitted time to inves-
tigate the last election, or if this committee will investigate the same, they will find
that the election was a mere farce ; that there was no desire or intention on the part
of the officers designated by the law to conduct or supervise said election that it
should be fairly conducted.

Affiant is corroborated in these allegations by evidence of the highest character, to
which he now refers, to wit, the report of a select committee of the House of Repre-
sentatives on affairs in Alabama, made to the second- session of the Forty-third Con-
gress on February 23, 1875, by Mr. Coburn, chairman of said committee, with the
evidence accompanying the same, and the report of the subcommittee of Privileges
and Elections of the Senate of the United States, by Mr. Cameron, chairman, made to
the second session of the Forty-third Congress on March 3, 1877, with the evidence
accompanying the same. In this report the committee say :

' Being clothed with the power to make, alter, or amend the laws of the State, all
further resort to any form of physical violence on the part of the Democrats, in order
to control the ballot-boxes, became unnecessary. A different plan presented itself
which was more acceptable, because more certain of success, and more secret in its
operations.

"Fraud, under color of the forms of law. was substituted for violence, and the laws
of the State regulating ami controlling the registration of voters and the conduct of
elections were so framed as to offer every encouragement to those to whom was com-
mitted the fraudulent changing of votes after they had been deposited, or the making
of false and fraudulent election returns, or the failure to open the polls and conduct
the elections in large Republican precincts, or the using of the method of obstruction
and embarrassment with which the laws had provided them to exclude from the bal-

16 DIGEST OF ELECTION CASES.

lot -box the ballots of qualified electors. The committee find that throughout the
State, as far as their investigation extended, and without exception in one or the other
forms which the laws permitted, the Republicans were either deprived of the opportu-
nity to cast their ballots, or the ballots, when cast, were changed or destroyed when-
ever and wherever it was deemed necessary to serve the purposes of the Democratic
party. To designate the elections of August and November, 1876, in Alabama, a
elections by the people, in so far as the purpose of an election is to indicate the choice
or will of the people, would be an abuse of the term."

And affiant avers that the condition of affairs in his district, as above described,
has continued to be the same as reported by the said several committees, and was the
same at the election of November 2, IBriO ; and that this an investigation of the said
pretended election of contestee will fully show.

A. A. MABSON.

Sworn to and subscribed before me this third day of February, A. D. 1882.

A. S. TAYLOR,

Notary Public.
To the honorable the House of Representatives of the United States :

As supplemental to the affidavit heretofore by him made and now before your Com-
mittee on Elections, in the case of Mabson vs. Oates, affiant states that he used due
diligence in taking testimony during the time allowed him by law ; that he com-
menced taking testimony only a few days to wit, seven days after his time for tak-
ing testimony began to run, and long before his testimony in Lee County was taken ;
that his earlier testimony is not before you because of the detention thereof by H. H.
Smith, as stated in his former affidavit ; that the counsel for contestee consumed the
time of contestant in taking testimony by asking his witnesses needless and irrelevant
questions, for the purpose of taking up his time, in many instances willfully consum-
ing three or four, hours in cross-examining his witnesses, when a few minutes were all
that was actually necessary for any legitimate purposes of such examination ; that
crowds of white men, supporters of contestee, would be constantly at the places where
his witnesses were being examined, and would by their boisterous conduct purposely
embarrass and intimidate his witnesses, who were all colored men ; that it is the cus-
tom of trade in Bullock County, in his district, for the merchants to give to the farm-
ers credit for supplies furnished, but when the witnesses for contestant were at Union
Springs, in Bullock County, for the purpose of testifying, many of these merchants
refused to give credit to those whom they had formerly credited, because they were
witnesses for contestant, and would refuse the same and tell them to return home and
not be fooling about politics, and to go to contestant for money which they might
need; and that contestant was greatly embarrassed by having to supply the neces-
sities of so large a number of witnesses, as it was intended by the said merchants, by
their refusals as aforesaid, that he should be. Affiant was obstructed in taking testi-
mony in Henry County, in his district, first, by the statement of contestee made to
him at Opelika, in Lee County, that some of the young men in Henry County, his
nephews among them, had banded together for the purpose of driving him out of
Henry County if he should go there to take his testimony, but that contestee discoun-
tenanced such proceedings and tried to dissuade them, but did not know whether he
could control them or not.

Secondly. That J. T. Kitchen was present at the election at Columbia pr*ciuct, in
said county, and could prove by histestimony that he saw the managers of election at
said precinct, who were all Democrats, changing the ballots after they had been cast,
by substituting for ballots actually cast for contestant fraudulent ballots for contestee,
but that said Kitchen, as affiant believes and charges, to prevent his testifying for
affiant, was arrested on a false charge, and confined in jail until after affiant's time for
taking testimony had expired, when he was released and the prosecution abandoned.

Affiant now states upon oath that he never at any time said to one John T. Ware, or
to any one, that he was making this contest for the purpose of making money, nor did
he ever state to any one that he knew he had been defeated in the election. On the
contrary, contestant states that he is not induced by any hope or expectation of re-
ceiving money in making this contest, but that he prosecutes the same wholly from a
desire to fulfill a duty which he owes to those who voted for him, and who were de-
prived of the lawful benefit and results of their ballots cast by fraudulent acts on the
part of officers of the election in failing to count and return the ballots cast for him,
and in substituting therefor ballots east for contestee. Affiant states that he has
always believed since the election, and now believes, and so avers, that he was actu-
ally elected and contestee defeated by the lawful votes cast for him on the day of
election.

Affiant states if he were allowed sufficient further time in which to take testi-
mony, he could prove to the best of his knowledge and belief the following facts:

That in four precincts in Lee County, in his district, three hundred and ten votes
which were cast for him were fraudulently counted for contestee ; that is, in precinct

MABSON VS. GATES. 17

No. 4, 71 votes; precinct No. 5, 100 votes; precinct No. 6, 50 votes; and precinct No.
"9, 75 votes.

That in four precincts of Russell County six hundred and seventy ballots cast for
him were fraudulently counted for contestee, to wit: Precinct No. 3, 100; precinct
No. 5, 100 ; precinct No. 7, 240 ; and precinct No. 10, 230 votes.

That in four precincts of Henry County, two hundred and ninety votes which
were cast for him were fraudulently counted for contestee, to wit : In precinct No. 1,
50 ballots ; precinct No. 4, 150 ballots ; precinct No. 12, 50 ballots ; and precinct No.
13, 40 ballots.

That in five precincts of Barbour County nine hundred and forty-two ballots which
were cast for him were fraudulently counted for contestee, to wit : Precinct No. 1, 167
ballots; precinct No. 2, 200; box No. 1, precinct No. 4, 125; box No. 2, precinct No.
5, 350 ballots ; and box No. 3, precinct No. 5, 100 ballots.

And affiant avers that in the elections in all of said election precinctsi;he managers
and returning officers were wholly and entirely members of the political party to which
contestee belonged, opposed affiant's election, and favored the election of contestee.
Affiant avers that in Bullock County eighteen hundred and eighty-seven votes were
cast for him, and four hundred and thirty -six for contestee, which the county board
of canvassers refused to count, upon the return made by them, in estimating the re-
sult of the said election in said county, on the ground that the poll-lists accompany-
ing the returns from the precincts were not signed the same being not a lawful rea-
son for their refusal to count and estimate these votes in ascertaining the result.

Affiant avers that on election day more than eight hundred lawfully qualfied elect-
ors, desiring and intending to vote for him, were present at the polling place for the
precinct commonly known as Seals Station precinct, in Russell County, but that the
opening of the polls in said precinct was prevented by violence and intimidation on
the part of the friends of contestee, who desired to prevent an election in said precinct,
because of the large majority there for contestant. Affiant avers that 138 votes from
Billiards ville precinct, in Henry County, and 72 from Hicks' Shop, in said county,
were unlawfully counted for contestee, no lawful or sufficient return being made
thereof from which the county board of canvassers could estimate the same.

Affiant submits that he has proved the facts alleged in relation to precincts No. 9,
4, and 6 in Lee County, by his testimony already taken. The vote, as certified by the
secretary of state, at said election was for contestee, 10,614 ; for contestant, 5,636 ;
but the allegations aforesaid show that there should be added to contestant's vote
and taken from contestee's in

Lee County 296

Russell County ., 670

Henry County 290

Barbour County 942

Total 2,198

That there should be added to contestant's vote the votes not counted by the county
board of canvassers in Bullock County, 1,877, and to contestee's, 436.

That contestant is entitled to 800 votes from Seals Station precinct, as aforesaid.

That contestee is not entitled to 215 votes counted for him in Henry County, as
aforesaid.

This would make the actual result of the ballot cast in said election to be as follows :

Official

Mabson.
5, 636

Official

Gates.
10,614

Add

2 198

Less

2 198

Add

7, 834
1,877

Add

8,416
436

Add

9,711
800

Less

8, 852
210

10,511

8, 642

Showing the true result to be a majority of votes for contestant of 1,869 votes which
affiant verily believes to be substantially correct.

A. A. MABSON.
FEBRUARY 14, 1882.

Sworn and subscribed to before me this 14th day of February, 1882.
[SEAL.] THOS. J. MYERS,

Notary Public.
H. Mis. 35-: 2

18 DIGEST OF ELECTION CASES.

JAMES Q. SMITH vs. CHARLES M. SHELL.EY.

FOURTH CONGRESSIONAL DISTRICT OF ALABAMA.

Contestant charged fraud, ballot-box stuffing, and conspiracy on the part of the party
friends of contestee, and the illegal rejection of returns.

Held, That returns rejected because signed by the mark (X) of the inspectors, the same
should have been received and the vote counted.

Ballot rejected and not counted because deposited in a cigar-box, on account of the
failure of the proper officers to provide the usual ballot-box, or blanks for returns,,
should be counted.

Where one who had been appointed an inspector of election refused to act, although
present, and after the closing of the polls he appears in the room and claims and
takes the ballot-box containing the ballots and puts it in a satchel, and such per-
son being remonstrated with hands back another box containing different ballots
which are counted, the returns from that precinct are corrected as the vote.s are
proven to be by the evidence.

Where the inspectors of election failed to appear and open the polls, and there are no
blanks or ballot-box provided, and the citizens then organize, and a list of the
voters present is taken, and an expression of preference from each as to his choice
for Representative in Congress, a return thereof is refused andnot counted, because
no polls were in fact opened and no ballots actually cast.

The House adopted the majority report, and contestant having died
the seat was declared vacant.

JUNE 27, 1882. Mr. W. G. THOMPSON, from the Committee on Elec-
tions, submitted the following

REPORT:

The Committee on Elections, to whom was referred the above-entitled con-
tested election, have had the same under consideration, and submit the
following report :

James Q. Smith and Charles M. Shelley were opposing candidates for
a seat in the Forty-seventh Congress, from the fourth Congressional
district of Alabama, at the November election held on the 2d day of
November, 1880.

By the returns of said election, as certified to the secretary of said
State, it appears that Mr. Shelley received of the votes 9,301, Mr. Smith
received of the votes 6,650, showing Mr. Shelley's majority to be 2,651.

On the 3d day of December, 1880, Mr. Smith caused to be served upon
Mr. Shelley a notice of his intention to contest, as the law provides, as
shown by the certificate in record, page 26.

In this notice of contest it was alleged by contestant that fraud, bal-
lot-box stuffing, and conspiracy between the partisan friends and sup-
porters of contestee had been resorted to, by means of which he was
defrauded out of his election, and that as a matter of fact a large majority
of the votes cast at said election were cast for contestant and that he
was duly elected, and specifically charged that these frauds had been
practiced in the several voting preciuts in the counties of Hale, Perry,

SMITH VS. SHELLEY. 19

Lowudes, Dallas, ami Wilcox, and which precincts will hereafter be
named in order. The coutestee filed his answer denying all the charges
set forth in the said notice, thereby making it incumbent upon the con-
testant to establish by competent evidence the truth of his allegations.

Mr. Shelley, having received the certificate of election, was admitted
to his seat when the Forty-seventh Congress was organized, and has
been during the pendency of the contest the sitting member and still
retains the same.

It appearing upon the face of the records, as before stated, that Mr.
Shelley having received a majority of 2,651 of the votes cast, contestant
must by proper evidence overcome this majority and show fraud through
which he was deprived of the votes necessary to make such change.

It is deemed proper to call attention to the condition of this district,
so far as population, color, and political proclivities are apparent, not
only now but from the time the district was first organized, and this is
shown by the evidence.

When the Democratic party came into power in 1874 the work of re-
organizing the Congressional districts was speedily commenced, the
object being to make all the districts Democratic. After the most la-
borious and careful investigation of this matter, it was found impossi-
ble to do so, and it was then considered best to put into one district all the
large Kepublican counties adjoining each other, to be called the fourth
Congressional district of Alabama. The acknowledged Eepublioan ma-
jority in Dallas County was, at the State election of 1874, 4,957 ; in
Hale County, 2,304; in Lowndes County, 2,953; in Wilcox County,
2,120; in Perry County, 2,606, making a clear Republican majority in
the district of 14,946 votes. At the Presidential election in 1876, Hayes,
Republican, received a majority over Tilden, Democrat, of 9,446 votes,
and in the same year in the State election, Woodruff, Independent,
receiving Republican support, had a majority over Houston, Democrat,
for governor, of 9,115 votes. In the Congressional election of the same
year, Rapier, running as the regular Republican nominee, and Haralson
running as a bolting candidate (both persons of the negro race), the
joint majority over Shelley, Democrat, was 6,256 votes. The census
returns of 1880 show that there are now in the counties composing the
district 135,881 persons of the negro race and 32,855 white persons,
disclosing a very large increase of the negro race, so that on a calcu-
lation it may be assumed that there is, iu fact, now a majority of 18,000
negro Republican voters over white Democratic voters iu the district.
The proof made by the contestant in this contest clearly shows that
from 95 to 97 percent, of the negro electors cast a Republican ballot
for Republican candidates in said district ichen permitted to do so.

And in fact these considerations give emphasis to contestant's dec-
larations in argument

The South was to be made solid, and the fourth district must be, and was, captured
to accomplish this much to be desired end. The negro electors of the fourth district
are now as successfully deprived of the elective franchise as when they wore the chains
of slavery, were sold at the auction block, and their backs quivered at the overseer's
lash.

This is the language of a citizen of the State of Alabama since his
early boyhood a man who has held high positions of honor and trust
the contestant in this case, and made in the light of the facts he has
presented in his evidence in this contest.

The evidence adduced by contestant shows that in Mitchell's voting
precinct, in Dallas County, he had cast for him 360 votes and for con-
testee 1 vote. This vote, although returned and delivered to the proper

20 DIGEST OF ELECTION CASES.

officer, was rejected, and the supervisors refused to open or count the
ballots, for the alleged reason that the statements made by the inspect-
ors were not signed. The same* objections were made to the returns
from many other precincts, when in fact they were signed, but frequently
the parties signing the same did so by making their mark, and this is
legal even under the laws of the State of Alabama. (See title 1, chap.
1, Code of Alabama. Sec. 1. Signification of words : " Signatures or
subscription includes mark when the person cannot write, his name be-
ing written near it and witnessed by a person who writes his own name
as a witness.")

And your committee cannot escape the conviction, from the testimony,
That a thoroughly organized and preconcerted plan and purpose had
been made and understood by and amongst the Democratic partisans
and supporters of Mr. Shelley, that in all the precincts where the Re-
publican majorities were large and Democratic voters very few that the
Democratic inspectors of such precinct should fail and refuse to open
the polls on the day of election, and thereby leave the work of so do-
ing in the hands of colored voters whose education was such as to make
it quite probable that some clerical error would occur, so as to furnish
an excuse for rejecting the box entirely.

Strong corroborative evidence of this is found in the further fact that
the county supervisors refused to appoint any Republican in such pre-
cincts selected by the Republican county committees, but invariably se-
lected one who was unable to read or write, or who, however honest in
intention, would not be competent to make out the required returns in
a proper and legal manner, or technically correct in all particulars, and
the evidence conclusively shows that the Democratic supervisors, com-
posed of the sheriff, probate judge, and clerk of the court of the county,
did not fail to find a pretext for refusing to count such boxes, where, by
sacrificing one vote for the Democrat, they would destroy 360 for the
Republican. This the committee, however much they may admire the
heroic effort for a fair vote and honest count, cannot in this case allow
the sacrifice.

The testimony in support of this is found as follows : B. Hatcher, pp.
56-59; Lot Thomas, pp. 111-113; Berry Moore, pp. 113, 114; Geo. F.
Beach, pp. 100-104, 375-378, and C. Duke, pp. 147, 148.

B. F. Hatcher, supervisor, returns as follows :

U, S. supervisor's return of votes cast for Representatives in Congress from the 4th Congres-
sional district of the State of Alabama, at precinct or poll No. 35, commonly called Mitch-
elFs,in the county of Dallas, on the 2nd day of November, 1880.

f
3

* a

Names of candidates.

-
o

S 3

*"S

7J "

1 -

D a

J. Q. Smith . . .

360

C. M. Shelly ...

Total Congressional vote

361

I, the undersigned, supervisor of election, appointed by the circuit court of the
United States, hereby certify that the foregoing return is true and correct.
Witness my hand at Mitchell's. Ala., this 2nd day of November, 1880.

BEN. F. HATCHER,

Supervisor.

SMITH VS. SHELLEY.

CAHABA PRECINCT, DALLAS COUNTY.

This box was not counted by the county supervisors because the
statement of the result returned was informal, but the evidence shows
that no blanks for that purpose were furnished. And the evidence is
clear as to how the actual vote was (see evidence of S. G. Hatcher, pp.
61-71 j Simon Ulmer, pp. 65, 66 ; Elisha Pittmau, pp. 66-71 ; Wesley
Thomas, pp. 71-75; Osborii Gardner, pp. 75-78; George F. Beach,
100-104; and J. 0. Duke, pp. 147, 148).

SUPERVISOR'S RETURN.

U. S. supervisor's return of votes cast for Representatives in Congress from the 4th Congres-
sional district of the State of Alabama, at precinct or poll No. 1(5, commonly called Cahaba,
in the county of Dallas, on the 2d day of November, 1880.

Names of candidates.

Number of votes,
as returned by
inspectors.

Number of votes,
TJ. S. supervis-
or's return.

376

Total Congressional vote :

387

Box thrown out ; returns irregular.

I, the undersigned, supervisor of election, appointed hy the circuit court of the
United States, hereby certify that the foregoing return is true and correct.
Witness my hand at Cahaba, Ala., this 20th day of November, 1880.

ELISHA PITTMAN,

Supei'visor.
PINE FLAT PRECINCT, DALLAS COUNTY.

The returns rejected because signed by making mark for signature.
Evidence of Frank Johnson, pp. 81-84 ; S. Torner, pp. 84-87. Exhibit,
p. 364. George F. Beach, pp. 100-104, 375-378.

SUPERVISOR'S RETURN.

U. S. supervisor' 1 s return of rotes cast for Representatives in Congress from the 4th Congres-
sional district of the State of Alabama, at precinct or poll No. 11, commonly called Pine
Flat, in the county of Dallas, on the 2d day of November, 1880.

Names of candidates.

Number of votes
as returned by
inspectors.

Number of votes,
TT. S. supervis-
or's return.

James Q. Smith .

280

Charles M. Shellv ..

Total Congressional vote

305

I, the undersigned, supervisor of election appointed by the circuit court of the
United States, hereby certify that the foregoing return is true and correct.
Witness ray hand at Pine Flat, Ala., this 5th day of November, 1880.

SKADE TORNER,

Supervisor.

DIGEST OF ELECTION CASES.

RIVER PRECINCT, DALLAS COUNTY.

Evidence of Joseph Eichardson, pp. 87-91. Exhibit, p. 363. Cliftou
Campbell, pp. 91-94; W. H. Hatcher, pp. 94-97 ; Dave Burns, pp. 97-
100; George F. Beach, pp. 100-104, 375-378; and J. C. Duke, pp. 147,
148.

U. S. supervisor's return of votes cast for Eepresentatives in Congress from the 4th Congres-
sional district of the State of Alabama, at precinct or poll No. 10, commonly called Hirer
beat, in the county of Dallas, on the 2d day of November, 1880.

Names of candidates.

Number of votes
as returned by
inspectors.

Number of votes,
U. S. snpervis-
or' return.

J". Q. Smith

305

G. Turner ,

305

Willard Warner

305

L. K. Smith

305

C. W. Buckley

305

J. J. Marten

305

B. S. Turner

305

D D. Booth .-' . ..

305

W. S. Bird

305

N. S. McAfee . . .

305

J.S.Clark ...

305

Bragg . ... . .

O'Neal . '

Bester ... ......

P-idgett ..

Waddle

Knorli ,

Saddle

Harris

Bowder -.

Jones

C. M. Shellev

Total Congressional vote

306

MARTIN'S PRECINCT, DALLAS COUNTY.

In this precinct there were cast, as the evidence shows, for Smith 384
votes, and for Shelley 16 votes. The ballots were counted, the returns
made out, placed in a box, and returned to the sheriff of the county,
and delivered to him, but when opened by the county supervisors no
returns found and none counted. The evidence is clear and abundant,
both as to the votes cast for each candidate and that the return was
made as the law requires, and was, when delivered to the sheriff by the
returning officer, in the same condition as when it left the inspector's
hands. The sheriff had the key to the box, and while the evidence
does not show that he tampered with the box, it does show the facts
set forth above; and the result was that Mr. Smith again lost 384 votes
honestly cast for him, while Mr. Shelley lost 16. The Democratic loss
is not so great as to cause extreme anguish of spirit in them, being con-
soled as they were by the fact that the Republicans lost 384 at the same
time.

The evidence on this precinct is found as follows : K. Petteway, pp.
114-121; Abe Martin, pp. 121-124; J. C. Duke, pp. 147-148; and Ex-
hibit, p. 361. In this precinct the Democratic inspectors refused to open
the polls, and no blanks for the returns were furnished.

SMITH VS. SHELLEY.

SUPERVISOR'S RETURN.

U. S. supervisor's return of votes cast for Representatives in Co ngress from the 4th Congres-
sional district of the State of Alabama, at precinct or poll No. 7, commonly called Martin
Sta., in the county of Dallas, on the 2d day of November, 1880.

Names of candidates.

3 -2

James Q. Smith

Charles M. Shelley.
William Stebin

None.

384
16

Total Congressional vote .

384

I, the undersigned, supervisor of election appointed by the circuit court of the
United States, hereby certify that the foregoing return is true and correct.
Witness uiv hand, at Martin Sta., Ala., this 2' day of November, 1880.

JOHN WESLEY,

Supervisor.
To J. W. DIMMICK,

Chief Supei'vi$or of Elections, Montgomery, Ala."

The inspectors appointed by the co. refused to open the polls. I went for the bal-
lot-box that was in the freight-house, in charge of S. Stinehardt, fr't ag't at Martin's
Sta., and got it from his clerk ; but Mr. Stinehardt met me and taken it away from
me, and said no one should have it except Mr. Martin, and that if I or any one else
put hands ou it would get a ball in us. I sent for Mr. Martin twice before I could get
it. I succeeded, however, in getting the boxes and opening the polls before nine o'c'k.
There was no blanks of any kind in the boxes, and we had to use writing paper. We
<lone the very best that we could under the circumstances.

JOHN +VESTLY.

mark.

P. 8. Mr. Stinehardt, in whose employ I was, told me that because I taken the part
I did that he had no further use for me.

LEXINGTON PRECINCT, DALLAS COUNTY.

The facts attending the vote in this precinct are similar to the one
above. The evidence of J. Adams, pp. 124-129; Exhibit, p. 362; Horace
Mosley, pp. 129-131; George T. Beach, pp. 100-104, 375-378; J. C.
Duke, pp. 147, 148, shows convincingly to your committee that at this
precinct there were cast for Mr. Smith 320 votes, and the Democratic
supervisors in this case again failed to find any returns, which the evi-
dence shows were in the box when delivered, and Smith again com-
pelled to lose 320 votes, while Shelley lost none, having received none.

SUPERVISOR'S RETURN.

U. S. supervisor's return of votes cast for Representatives in Congress from the 4th Congres-
sional district of the State of Alabama, at precinct or poll No. 9, commonly called Lexing-
ton, in the county of Dallas, on the 2d day of November, 1880.

Xames of candidates.

Is -

ill
III

fc, 00 4>

ja'J

Itil
^

James Q. Smith

' 320

320

Total Congressional vote

320

DIGEST OF ELECTION CASES.

There wasn't auy disturbance the 2d day November at the election Lexington beat.
The whites acted well. No man offered any riot, disputing about the election. Close
at 5 o'clock p. m. The poll opened 4 minutes after 6 o'clock.

I, the undersigned, supervisor of election appointed by the circuit court of the
United States, hereby certify that the foregoing return is true and correct.

Witness my hand at Lexington, Ala., this 4th day of November, 1880.

CHILLATCHIE PRECINCT, DALLAS COUNTY.

Evidence L. Irby, pp. 131-138 ; Exhibits, pp. 138-140, 370 ; Touey
Abies, pp. 141-144; G. F. Beach, pp. 100-104; and J. C. Duke, pp.
147, 148.

In this precinct the Democratic inspectors refused and failed to opeu
the polls. The citizens did so, but as the county supervisors failed to
furnish either ballot-boxes or blanks for the returns, the votes were put
into a cigar-box and counted. Certified returns made out and delivered
to the sheriff, or rather an offer to do so ; when, as the evidence shows,

he was told by the officer to take it away, as the d d thing was not

wanted in his office. This officer had no authority to refuse receiving
the box ; but as it contained 124 votes for Smith, and but one for Shel-
ley, his profanity as well as refusal may be accounted for.

SUPERVISOR'S RETURN.

U. S. supervisor's return of votes cast for Representatives in Congress from the fourth Con
gressional district of the State of Alabama, at precinct or poll No. 26, commonly called
Chillatchie, in the county of Dallas, on the 2dday of November, 1880.

Xames of candidates.

IP'S

For electors for President and Vice-President of the U. S. States :

James Q. Smith

W. J. Stephens

Total Congressional vote.

124
124

124

12*

124

I, [the undersigned, supervisor of election appointed by the circuit court of the
United States, hereby certify that the foregoing return is true and correct.
Witness my hand at Chillatchie, Ala., this 2d day of November, 1880.

LINDSAY IRBY,

Supervisor.
To J. W. DIMMICK,

Chief Supervisor of Elections, Montgomery, Ala. :

The polls at this voting place were opened by the colored citizens. The inspector*
appointed by the co. (if any) never snowed themselves, nor could we find out who
they were, nor could we get any ballot-box. We voted in a segar-box. So far as to
law the election was all right, except we voted in a segar-box.

LINDSAY IRBY.

In all the foregoing precincts the Democratic inspectors failed and re-
fused to open the polls, thus compelling the citizens to appoint others,
whom it was supposed, on account of illiteracy, would fail to make out
the statements, returns, &c., in a legal manner, and thus furnish the
county supervisors, who appointed these inspectors, an excuse for re-
jecting the returns. This failure on the part of the inspectors invariably
occurred in precincts largely Eepublican, and, read in the light of the sub-
sequent action of the county supervisors, furnishes convincing evidence

SMITH VS. SHELLEY. 25

of collusion and fraud, by which the electors of these precincts were to
be cheated out of their votes and Mr. Smith out of his election, and
does not well comport with the resolve for a free, fair vote and an honest
count.

PINTLALA PRECINCT, LOWNDES COUNTY.

See evidence of Samuel M. Duncan, pp. 200-203 ; W. D. Gaskin, pp.
203, 207 ; exhibits, pp. 344, 345; Samuel Lee, pp. 207, 208; J. V. McDuffie y
pp. 211, 216 ; B. W. Mason, pp. 554, 555 (contestee's witnesses).

In this precinct the Democratic inspectors failed to open polls, and
the evidence shows that polls were opened by the voters, and that one
E. P. Holcorube, who had been appointed by the county supervisors as
an inspector, refused to act, although present. The election was quiet
and orderly during; the voting, but about the time the polls closed said
Holcombe appeared in the room and claimed the box, and against the
protest of the officers took the box and put it in a carpet-sack or sachel,
in which he had, in the opinion of your committee, another ballot-box
stuffed for the occasion, and which he, after disputing with the officers
of the election for a time, took out and left instead of the one he had taken
from the table, and it appears fully and conclusively that the box stolen
by Holcombe contained 315 votes for Smith and 35 for Shelley, and the^
one substituted only 9 votes for Smith and the balance for Shelley.

This high-handed, unfigleafed fraud is so grave and impudent your
committee deem it proper to give the evidence, in part at least, in rela-
tion to this transaction :

WILLIAM D. GASKIX, a witness called and examined by the contestant, and in hi
behalf, being first duly sworn, deposes and says upon oath :

Question. Where do you reside ; how long have you resided there ; to what race do-
you belong ; what is your occupation, and are you a Republican or Democrat in poli-
tics? Answer. I reside in Piutlala beat, Lowndes County, Alabama, and have lived
there about eighteen years; I belong to the African race; am a farmer by occupation t
and a Reptiblican in politics.

(Counsel objects to the examination of the witness, upon the ground that he reside*
outside of the district in which the commissioner resides, and in a different county.)

Q. Was there an election held in Pintlala beat, Lo'wndes County, on the 2d day or
November, 1880, and who were the candidates for Congress voted for at that election f
A. There was an election held there 011 that day. The candidates were James Q.
Smith and Charles M. SheJley.

Q. Who were the inspectors appointed by county authority to hold said election ?
Were they present to open the polls, and were they supporters of Charles M. Shelley
for Congress, and were they Democrats in politics ? A. The inspectors appointed by
the county authorities were E. P. Holcombe, D. W. McCarthy, and Robert Dand-
ridge. Robert Daudridge and E. D. Holcombe were present, but McCarthy was not.
Holcombe was a Democrat, and a warm supporter of Mr. Shelley, as was also McCar-
thy. Robert Daudridge was a Republican.

Q. Did E. P. Holcombe oifer to open the polls and hold the election ? A. He pre-
tended at first in the morning that he wanted to open the polls, and said that he had
to wait for McCarthy. McCarthy did not come, and he refused then to act.

Q. Was Daudridge, the other inspector, present when Holcombe refused to act ? A..
Yes, sir.

Q. Was Holcombe a white man, and is Dandridge a man of color? A. Holcombe-
was a white man ; Dandridge is a colored man.

Q. Who opened the polls and held the election f A. Robert Dandridge, Philip
Samuel, and Toney Davis.

Q. Did the inspectors take an oath as such ; and before whom was it taken ? Were
there clerks appointed, and who were they ? A. The inspectors took an oath admin-
istered to them by Mr. Collins, a magistrate. Two clerks were appointed Henry
Green and Sampson M. Rives. They were sworn by the same magistrate.

Q. Was there any announcement that the polls were open, and at what hour .'
A. The polls were announced open at about half past eight o'clock, as near as I re-
member.

Q. Do you know Philip Samuel and Toney Davis, and how long have they resided

26 DIGEST OF ELECTION CASES.

in Piutlala beat, and are they over the age of twenty-one years ? A. I know both of
them ; they are each over twenty-one years of age, and have resided in that place for
the last twelve years.

Q. What office did you hold on the day of the election ; were you commissioned, and
where is your commission now ?

(Counsel for contestee objects to the question, upon the ground that it calls for sec-
ondary evidence.)

A. I was United States supervisor, I was commissioned ; and my commission is at
home.

Q. Were you present all the day of the election, and did you attend to the manner
in which the voters cast their ballots, and did you carefully scrutinize the manner of
conducting said election ? A. I was present during the day of the election and noticed
the manner in which the voters cast their ballots, and I carefully scrutinized the
manner in which the election was conducted.

Q. Who received the ballots from the voters ; what did he do with them ; did you
keep a tally or any account of the number of ballots cast for each candidate for Con-
gress at said election ? A. Robert Dandridge, one of the inspectors, received the bal-
lots from the voters and passed them to another inspector, who deposited them in the
box. I kept an atcount part of the day. There were but two candidates, and I kept
an account between the two.

Q. What part of the day was it that you did not keep an account ? A. After about
lialf past three o'clock I ceased to keep an account.

Q. After half past three o'clock were you in the room, and did you observe the vot-
ing ? State, if you have any means of knowing, how many votes were cast after half
past three o'clock, and for whom. A. I was in the room, and observed the voting
after half past three o'clock. The only means I had of knowing how many were cast
was rny seeing the ballots as they were handed in with the name of James Q. Smith
upon them.

Q. Were the ballots deposited in the box counted? A. They were not.

Q. State as near as you can the number of votes cast for James Q. Smith for Con-
gress up to three and a half o'clock ; state as near as you can the number of votes
cast for him between the hour of three and a half o'clock and until the voting was
over. A. Up to three and a half o'clock he had gotten about two hundred and seventy
or seventy-five votes; from my best judgment, from that time until the polls were
losed, I should say he got between forty-five and fifty votes.

Q. State why it was the ballots were not counted. A. About eight or ten minutes
before the closing of the polls E. P. Holcombe came in the room and took the box from
the table where it had been all day during the voting ; he said he was a bailiff and
had a right to take possession of the box. He put it in his sachel. Five or six
minutes afterwards his son-in-law, Samuel J. Murray, came to the door of the room
and urged him (Holcombe) to give him the sachel, saying he was in a hurry to go
home. Thereupon, Holcombe took from the sachel a box other than the one in which
the ballots had been deposited and then handed to Murray the sachel containing the
box he had taken from the table. We did not discover that the box had been changed
until Murray had driven off with the sachel containing the proper ballots that had
been voted that day.

Q. Describe the boxes, and how you discovered that they had been changed ? A.
They were two cigar-boxes. The right box was bound in bright red paper, and had a
picture on one end of a man with a sword in his hand. The hole in which the ballots
were passed was in the end of the box, and the end was split from one side of the hole
to the edge of the box. The box that was substituted was bound with a kind of pale
bluish paper, and had the bust of a man on the end of the box whose features were il-
luminated with a smile. This box also had a hole in the end of it, but was not split.

Q. Did the inspectors open the box that was left upon the table. And state if it
was examined, and what you discovered it to be.

(Question objected to upon the ground that the box and contents are the best evi-
dence of the matters called for, and when last heard from was iu the hands of the
friends of the contestant. )

A. We opened the box, after we discovered the fraud, to see what it contained.
We did examine it, and found it stuffed with Shelley and Stephens tickets, and only
.about nine for Smith.

Q. Do you now state that the box left by Holcombe, and which you opened, is not
the box in which the ballots cast during the day were deposited ? A. Yes, sir ; I do.

Q. Do you know the number of colored voters in Pintlala beat, and do they chiefly
vote the Republican or Democratic ticket? A. There are, I think, between three
hundred and fifty and three hundred and sixty, and they vote the Republican ticket;
I know of no exception at the last election.

Q. Do you know the number of white men, voters of Pintlala beat, and do they
chiefly vote the Republican or Democratic tickets? A. There are between thirty and
thirty-five white voters, I think, and with the exception of two, they all vote the
Democratic ticket.

SMITH VS. SHELLEY. 27

Q. Do you come to Montgomery voluntarily? A. Yes, sir.

Cross-examined by JOHN F. WHITE, Esq., counsel for contestee :

Q. What are the politics of the inspectors who held that election? A. They were
Republicans.

Q. You stated that so many votes were cast for James Q. Smith at that beat ; is that
an accurate statement ? A. It was accurate up to the time that I kept the account.

Q. How many votes did Charles M. Shelley receive during the time you kept the
account ? A. He received about twenty-one or two votes.

Q. Did he receive any after you ceased to keep account ; and, if so, what is your best
judgment as to the number? A. My best judgment is that he received a few votes.
I cannot state the number.

Q. Did you keep a written memorandum of the votes cast there that day ? A. I
kept a tally of the votes as they were cast.

Q. Where is that tally-list? A. Did not preserve it.

Q. You do not pretend to make an accurate statement of all the votes cast there
that day and for whom they were cast, do you ? A. The account was accurate up to
three and a half o'clock ; as to the remainder, I give my best judgment.

Q. Who was present when Colonel Holcombe came in and took possession of that
box ? A. Robert Dandridge, Touey Davis, Philip Samuel, Henry Green, Sampson M.
Rives, and myself.

Q. What kind of sachel was it Holcombe had? A. It looked like it was made of
brown linen.

Q. Where are the parties you name as having been present when Holcombe came into
the room ? A. They are all at their homes in Lowndes County, except Sampson M.
Rives, who has moved away since the election.

Q. Do you know whether any or all of them were subpoenaed to attend this com-
mission ? A. I do not.

Q. State as fully as you can what conversation occurred after Holcombe took pos-
session of this box in regard to his doing so. A. There was a great deal of confusion
when it was found that a box had been substituted. We protested against Holcombe's
taking the box, and myself and one of the inspectors caught hold of the sachel.

Q. Did any of the parties present go out of the room while Holcombe had possession
of the box? A. I went out, after leaving the sachel in charge of one of the inspect-
ors, who had his hand upon it. Holcombe had his hand on it..

Q. What was the condition of things when you got back? A. I was gone about
two or three minutes. I heard confusion at the room door before I got back. When
I returned to the room the sachel and proper box had both been carried off by Murray.

(). If these boxes were changed it was done in your absence, was it not? A. To
that extent, I suppose that it was.

Q. Did you actually witness the changing of one box for the other ? A. I witnessed
the box being taken by Holcombe from the table, and know that the ouo he returned
to the table was not the one we had in use all day.

Q. Did you see Holcombe take any box at all out of that sachel and place it upon
that table? A. I did not, but he said in my presence that he put it on the table.

Q. To which box did he refer? To the box that was substituted for the right
one.

Q. What has become of that box? A. We forwarded it to the sheriff by the return-
ing officer, Ed. Smith.

i t >. Did you make out any returns in accordance with its contents? A. We wrote a
certificate that it was not the proper box, and forwarded it with the box, so that it
might not be counted.

Q. Did you ever see or hear anything of that box that Murray carried off? A. No,
sir.

Q. Were you ever a member of the legislature of Alabama; and, if so, in what
year! A. In 1874 I was a member.

Q. Were you notdeprived of your seat by impeachment ; and, if so, what were the
charges against you ? A. I was not deprived of it by impeachment.

Q. Were you not unseated by a vote of the legislature for bribery ? A. I decline to
answer any further questions on that subject, because I don't think it is right.

Q. State, as accurately as you can, the hour at which the polls were opened and
cloyed at Pintlala beat that day. A. The polls were announced opened at about half-
past eight o'clock and closed at the hour designated bylaw 5 p. m.

Re-examined by the contestant :

Q. Did you make any return to Chief Supervisor Dimniickof the manner in which
tin- election at your beat was a failure, and why it was you were unable to count the
vote f Does your report, as made, contain a true statement of the votes cast at that
election for James Q. Smith for Congress ?

(Contestee objects to the question, upon the ground that it calls for new matter and
secondary evidence. )

28 DIGEST OF ELECTION CASES.

A. I made a return to Chief Supervisor Diinmick of the manner in which the elec-
tion was a failure, and why we were unable to count the vote. To the best of in y
knowledge and belief, my report contains a true statement of the votes cast for Jaiia-s
Q. Smith for Congress.

W. D. GASKIX.
\ Statement of inspectors.

Beat No. 17. Pintlala, Lowndes Co., Ala., Nov. 3d, '60.

.The inspectors of the above-named beat will swear to the following statement, to-
wit:

That they saw Col. E. P. Holcomb in possession of a satchel containing a cigar-box
prior to the time that the said Holcomb took charge of the ballot-box, against the
protest of the inspectors ; and that Gaskin ordered the aforesaid Holcomb not to put
hands on the box, when he, in reply to Gaskiu, said the the said Gaskin has nothing
to do with the box containing the votes or anything else ; that as U. S. supervisor
could give no orders nor handle any paper belonging to the election ; but that he, G. f
could only stand, look on, and report how the election was held, and all that was done
irregular; and that while the said H. was saying this toG., and asserting his right*
as an officer of the election, notwithstanding all that G. had said to him against tak-
ing the box from the table on which it was, and had been during the election, the
said H. seized the box and took it from the table and put it into a satchel which was
brought into the room where the voting was carried on, and known as his private
property. The box referred to above was the box in which ballots was voted by the
people of the precinct w r as deposited. At least three hundred and fifty-four had
been polled up to about Jen minutes of five o'clock, when everybody desiring to vote
had voted ; and there was no one at the polls who had not voted, and Col. H. put the
box in the satchel above mentioned. The satchel was of a brown linen color, contain-
ing a petition in the middle ; and on one side was the box supposed to be conceal, and
on the other side, which appeared to empty, he put the box taking from the table,
and when he had done this Gaskin first took hold of the satchel himself, and finding
afterwards that he was compelled to go to himself a few minutes called Robert Dau-
dridge, and made him take hold of the box in his absent, until he could return, and
as soon as G. went out to the door, he called the marshal, Wesley Nolls, and place
him at the door of thejelection room, and instructed said Nolls, as U. S. marshal not
to allow anything to be brought of said room until he, G.', could return. And a few
minutes before Gaskiu left the room, Tony Davis, one of the inspectors, ask leaf of
absent or leaf to step aside rather for two or three minutes. As there was no voting
going on, and w r as not yet five o'clock, leaf was granted and Davis went, and wa
back in a short time, and when Davis return this was the time that G. went out, and
in short time after Davis' return to the room, the other inspectors all being in the
room, and Mr. B. W. Mason, also U. S. supervisor, and Col. E. P. Holcomb, the alarm
was made that the box containing the votes that was put in Col. H.' sachel was out
of place and that another fraudulent box was inserted in its place on the table, from
which the proper box had been taken.

ROBERT DANDRIDGE.

PHILIP S. SAMUEL.
bis

TONEY + DAVIS.
mark.

(Indorsed :) AA. Election 1880, Lowndes County. Inspector's report at precinct
No. 17. Pintlala beat. Rec'd & filed the 19 day of Nov., 1880. J. W. Dimmick,
chief sup.

U. S. supervisor's return of votes cast for Representatives in Congress from theWi Congres-
sional district of the State of Alabama, at precinct or poll No. 17, commonly called I'int-
lala, in the county of Lowndes, on the 2d day of November, 1880.

Names of candidates. . 9 g

5 =

Z J

>
c

>--=

- c

James Q. Smith

Charles M. Shelley..
William J. Stephens.

Total Congressional vote

SMITH VS. SHELLEY. 29

Ballot-box stolen.

The ballots which were cast at this precinct were as follows, as nearly as I can
ascertain :

For J. Q. Smith, 315 ; for C. M. Shelley, 35.

For full report, see supervisor's report marked AA.

I. the undersigned, supervisor of election, appointed by the circuit court of the United
States, hereby certify that the foregoing return is true and correct.

Witness my hand at Pintlala, Ala., this 2d day of November, 1880.

W. D. GASKIN, Supervisor,

To J. W. DIMMICK,

Chief Supervisor of Elections, Montgomery, Ala.

lu stating above that the managers at the Piutlala precinct made no return of the
election, I intended to say that they made no such count of the votes or certificate
thereof as is contemplated by law. They did make a certificate, which is in words
and figures as follows, to wit: "We, the undersigned, managers of Pintlala beat, do
hereby certify that there is three hundred and fifty-five tickets in the box, and the
poll-list shows three hundred and fifty-four, and we do not believe that the box con-
taining such tickets is the correct box."

TONEY DAVIS,
PHILLIP SAMUEL,
EGBERT DANDRIDGE,

Managers.

The foregoing is the only certificate made by said managers as far as I know or have
been informed.
Nov. 3d, 1880.

B. W. MASON,
Supervisor of Elections for 17th Precinct (Pintlala 1 ), Lowndes Co., Ala.

This certificate is found with Mr. Dimmick, chief United States su-
pervisor, and indeed there is no evidence which materially contradicts
the facts above stated. Mr. Smith should have counted for him the 315
votes cast.

Your cotarnittee state that it would swell this report to undue propor-
tions to give in detail the evidence showing the fraud, collusion, and
bad faith of those managing the elections for the coutestee, and must
state as briefly as possible the true state of the votes at the other dis-
puted precincts, as shown by the evidence.

Whitehall precinct, Lowndes County, Smith had 276/

Hopewell precinct, Lowndes County, Smith had 116.

Benton precinct, Lowudes County, Smith had 156.

In these precincts the Democratic inspectors failed to appear, except
at Whitehall, and returns rejected because of informality, but should be
counted for contestant. Prairie Bluff precinct, Wilcox County, Smith
had 305 and Shelley 35 ; this vote rejected for the reason that the name
of the precinct did not appear in the return, and yet the following is the
return of the supervisor of that precinct :

U. S. supervisors return of votes cast for Representatives in Congress from the fourth Con-
gressional district of the State of Alabama, at precinct or poll JYb. 4, commonly called
Prairie Bluff, in the county of Wilcox, Ala., on the 2d day of November, 1880.

Names of candidates.

T>>

15 .

o C a -

ill

* f

'i^-JJ

p oj.S

3^ O

James Q. Smith

305

Charles M. Shellev

Total Congressional vote . . .

328 '..

Xot counted. (See evidence.)

30 DIGEST OF ELECTION CASES.

I, the undersigned, supervisor of election, appointed by the circuit court of the
United States, bi-reby certify that the foregoing return is true and correct.
Witness my hand, at Prairie Bluff, Ala., this &1 day of November, 1880.

T. J. SYKES,

Supervising.

Your committee cannot think that the Democratic supervisors re-
jected this through ignorance of the law, but in violation of the same,
and these votes should be given to Mr. Smith, as the electors intended
them.

NEWBURN PRECINCT, HALE COUNTY.

The following is the evidence of the United States supervisors of this
precinct, and which is corroborated by other and competent evidence,
and the evidence of the actual vote will be found as follows: M. House,
pp. 300-305j exhibits, pp. 429-431; B. J. Saunder, pp. 305,308; ex-
hibits, pp. 318-321 ; Lawson Hill, pp. 308, 309 ; exhibits, 321, 322 ;
Granville Thompson, pp. 312, 313 ; exhibits, 323.

MERRITT HOUSE, United States supervisor :

Q. Were you present all day of the election, and did you carefully scrutinize the
manner of depositing the ballots and the counting of the same! A! I was present
all the day of the election, and I carefully scrutinized the manner of depositing the
ballots and also the counting of the same.

Q. State fully and particularly all that was done and said after the polls were
closed in reference to the counting of ballots by the inspectors, giving the name of
each inspector or person who took any part or said anything about the counting <>t"
the ballots, and anything else that transpired in reference thereto on that day. A.
When the polls were closed, the inspectors, Mr. WyleyCroom, Noah Huggins, wanted
to take the ballot-box from the room in which we had held the election into an office
outside of the room and building where we held the election; to this I objected, and

insisted upon counting the ballots there. To this Mr. Groom said he would be d d

if he didn't do it. By this time it had got dark inside the room, and I said, " If you
will go in there I will take the box and carry it aloug.' ? Mr. Huggins says, "You put
that box down, by God ; Mr. Groom is the man to carry that box." I then put the box
down; Mr. Croom'thentooktheboxup, put the papers poll-list on top of the box; then
we started from the front of the store to go out of the store at the back door, and before
getting to the back door Mr. Groom and Mr. Huckleby, one of the clerks, went behind a
hay pile. Robert Lee, the colored inspector, said, " What are you all going around there
for? You know you can't get out there." Mr. Groom said, " Oh, that is so; and they
then turned and came back and got to the right side of this hay, where there \v a s n door,
and we could see, and Mr. Johnny Huckleby had the box. Robert Lee, the colored in-
spector, says, "What are you doing with the box, Mr. Huckleby?" Mr. Huckleliy
said Merritt saw him pick the box up off the counter: witness is Merritt. I said, ''No,
sir; it was not you picked it up; it was Mr. Groom." To this there was no reply.
and they then walked out into the next room. When we got into the next room I
said, "I am not satisfied about this box." Mr. Huckleby tried to draw my attention
on to another subject. Then we commenced counting, and counted a good many
tickets. I then discovered that this was the wrong box. I had marked the box in
the polling room with a straight mark, with my knife, under the lock, and Bob Lee
made a mark across my mark, and the one we had in there had no mark on it. I then
got up and said, "There are illegal tickets here; I thought something would be
wrong, was my reason for not wanting to come in here." I then went outdoors, and
tried to go back in the room where we had been all day. I was told that the key
was lost, and they wanted to know what I wanted to go in there for; I told them I
wanted to go in there to get the right box ; that the one they had counting the tick-
ets out of was an illegal box. Mr. Groom and Lewis Turpin let me go into the store-
room in the front, and then I asked to go back to the hay pile, and they would not
let me go, saying that that was his private room; they then made me come out of the
store. Noah Huggins, one of the inspectors, then threatened to shoot me, and I said,
" Gentlemen, if I cannot count the right box, I will go home ; " and then I left. This
was about nine o'clock p. m.

None of these votes counted for Smith, although honestly cast for
him, and he should have them counted for him, and your committee so
find, as they are convinced that not to do so would be an outrage upon

SMITH VS. SHELLEY. 31

the rights of both the electors and contestant. We find the following
votes cast for Mr. Smith at the several precincts named below, and
fraudulently rejected by the precinct inspectors :

Walthal's precinct, Perry County 186-

Scott's precinct, Perry County 274

Cunningham's precinct, Perry County 180

Hamburg precinct, Perry County 250

Marion precinct, Perry County 238

1, 128

These votes should be given to Mr. Smith, as the evidence, in the opin-
ion of your committee, abundantly shows.

Your committee further find that the United States supervisors' re-
turn of votes cast for Eepresentative in Congress from the fourth dis-
trict of the State of Alabama, election held on the 2d day of November,,
1880, composed of Dallas, Lowndes, Perry, Hale, and Wilcox Counties,,
was as follows, to wit:

RECAPITULATION.

Counties.

Votes cast
for Smith.

Dallas

1,544

3, 178-

1,514

2 354

1,316

2 507

Hale . .

1, 222

1 054

Wilcox . ..

1,185

1 785-

Total

6,781

10 878-

Smith received 4,097 votes majority over Shelley, according to the
returns made by the United States supervisors, as shown above.

Your committee, however, aside from this, find from the- evidence that
the statement of the true vote is as follows :

Contestant is returned as having received at said election 6, 650

To which add from Dallas County, as hereinbefore set out 2, 158

From Lovrndes County, as stated 868

From Wilcox County, as stated 305

From Hale County, as stated 398

From Perry County, as stated 1, 128

Total 11,507

The contestee is returned as having received a total vote of (see Record,

page 170) 9,301

Add ballots cast for contestee and thrown out by the board of county super-
visors, viz :

Prairie Blnff precinct, Wilcox County 24

Cahaba precinct, Dallas County 11

Fine Flat precinct, Dallas County 25

Mitchell's precinct, Dallas County 1

River precinct, Dallas County 1

Martin's precinct, Dallas County 16

Piutlala precinct, Lowudes County 40

White Hall precinct, Lowudes County 14

Hopewell precinct, Lowndes County 17

Newbern precinct, Hale County 103

252

Contestee's assumed vote . 9,553

32 DIGEST OF ELECTION CASES.

Deduct from the above assumed vote of contestee the following votes fraudu-
lently counted for contestee by the precinct inspectors, viz :

Waltlial's precinct, Perry County 181

Cunningham's precinct, Perry County 170

Scott's precinct, Perry County 190

Hamburg precinct, Perry County l(i?

Marion precinct, Perry County -. 141

849

Contestee's vote .' 8, 704

In the above precincts of Perry County the ballot-boxes were stuffed
and the vote changed.

Contestant's vote, as shown 11, 507

Contestee's vote, as shown 8, 704

Contestant's majority 2, 803

Your committee further find that on the morning of the election the
Democratic inspectors of Burnsville precinct, in Dallas County, did not
open the polls and failed to appear. The citizens being mostly colored
men, came before 9 o'clock a. in., to the number of over or about 400
voters, for the purpose of voting, but were discouraged by beiuginformed-
that an election in the absence of inspectors would be illegal. A
delegation of them went several miles to seek legal advice, and after do-
ing so came back and was aboutto open the polls, and was then informed
that they could not do so, because the hour of 9 o'clock a. m. had passed,
and no election could be held or polls opened after that time ; no poll-
boxes were furnished or blanks for returns. They then organized, and
a list of the names of voters in the precinct was taken, and an ex-
pression of preference from each as to his choice for Representative in
Congress, and that 300 registered and expressed their choice as being
Mr. (Smith, while not one expressed a willingness to vote for Mr. Shelley.
But as no polls were in fact opened, and no ballots cast, your committee,
while they believe these electors have been deprived of their votes fraud-
ulently, cannot allow them.

In conclusion, your committee state that they have but little pleasure
in reporting the facts which the evidence in this case discloses, as such
acts must be and remain a blot upon our boasted civilization ; and a more
deliberate, wanton, barefaced, and cruel fraud was never practiced upon
a people guaranteed by the laws of our common country the right to
ast a free ballot and have it honestly counted. And while it is true
that many of them, and, indeed, most of them, were colored men and
uneducated men, yet it strikes your committee as being the acme of
cruelty for those who have practiced these frauds and wrongs upon
them to palliate the fraud or excuse themselves because of such igno-
rance, seemingly forgetting what all civilized people remember, that it
was their own deliberate act that made them so, and by solemn enact-
ment of State laws made it a felony to attempt the task of teaching
them ; but neither law nor common ordinary fairness would permit the
conspirators to reap the rewards or benefits of their own wrong. The
very ignorance they charge should be, and is, to every honest, humane
man a strong and controlling reason why extraordinary efforts should be
made to guard the rights of those dependent upon them; and if a com-
munity will not do so, the laws of a common country will.

And to that end your committee submit the following resolutions and
ask their adoption :

Resolved, That Charles M. Shelley is not entitled to a seat in the For-
ty-seventh Congress, and was not elected thereto from the fourth Con-
gressional district in the State of Alabama.

SMITH VS. SHELLEY. 33

Resolved, That James Q. Smith was duly elected a member from the
fourth Congressional district of the State of Alabama to a seat iii the
Forty-seventh Congress, and is entitled thereto.

VIEWS OF MR. RANNEY.

JAMES Q. SMITH, CONTESTANT, vs. CHARLES M. SHELLEY, CON-
TESTEE. FORTY-SEVENTH CONGRESS.

AS TO MOTION OF CONTESTANT.

The contestant on the hearing of this case before the subcommittee
moved to suppress and strike from the record the testimony taken by
the contestee of J. S. Muchat, William H. Dillard, Simpson Jones, Will-
iam B. Gilmer, Wilson Harris, M. A. Graves, F. M. Sullivan, and B.
W. Mason, taken by Ben. De Lemos, and the testimony of Ben. De
Leinos taken by H. W. Caffey, for the reasons set forth in contestant's
statement (Record, page 217), and to the testimony of said witness taken
by said De Lemos, why styles himself notary public, because he does
not authenticate by a seal his official position (McCrary on Election
Contests, page 336 ; Code of Alabama, sec. 1330, page 424). " For the
authentication of his official acts, each notary public must provide a
seal of office, which must present by its impression his name, office,
State, and county for which he was appointed." And for a further rea-
son the contestant moved as aforesaid, because neither the certificate
nor the oath administered is according to law.

And it appearing that no sufficient or proper notice was served upon
contestant, so he had no opportunity to be present and cross-examine
the witnesses, as is shown by the deposition of contestant, which is not
controverted

It is my opinion that said motion might properly be granted for some
of the reasons stated, and that all of said proof taken by contestee of
said witnesses be stricken from the record 1 in this case. But I do not
deem it necessary to grant the said motion. I prefer rather, without
passing upon all the questions involved, as they are, some of them, tech-
nical, to make all proper allowances for the evidence taken, iu view of
the fact that contestant had no opportunity to cross-examine the wit-
nesses, and they were not cross-examined, in fact, because of the want
of proper notice.

JAMES Q. SMITH, CONTESTANT, vs. CHARLES M. SHELLEY, CON-
TESTEE. FORTY SEVENTH CONGRESS.

Contested election from the fourth Congressional district of Alabama.
Election held on the 2d day of November, A. D. 1880.

The Committee on Elections, to whom was referred the contested-election
case of James Q. Smith against Charles M. Shelley, from the fourth
Congressional district of Alabama, election held on the 2d day of No-
vember, A. D. 1880, having had the same under consideration, beg leave
to submit the following report :

From the record testimony in the case, it appears the counties of
H. Mis. 35 3

34 DIGEST OF ELECTION CASES.

Dallas, Lowndes, Hale, Wilcox, and Perry make up the fourth Con-
gressional district of Alabama; that the electors of each of said coun-
ties are chiefly of the African race, and, as would seem, cast Republican
ballots for their party candidates to the extent of from 95 to 97i per
cent, of their vote when permitted to do so ; that the electors in each of
said counties are largely Republican in politics, and in the district, the
five counties combined, have a joint Republican majority of at least
15,000 votes ; that the white electors in each county of the district chiefly
cast Democratic ballots for their party candidates. (Record, Rapier's
ev., pp. 151-155; McDuffie, 211-216 ; Record, pp. 169, 170.)

The evidence given upon some of the general facts stated above is a
matter of opinion, it is true, but the same comes from men apparently
well able to judge, and is not controverted by other evidence.

It has been stated, and is notorious as matter of history, as claimed
by contestant, that when the Democratic party came into power in 1874
the work of reorganizing the Congressional districts was speedily com-
menced, the object being to make all the districts Democratic. After
the most laborious and careful investigation of this matter, it was fouud
impossible to do so, and it was then considered best to put into one dis-
trict all the large Republican counties adjoining each other, to be called
the fourth Congressional district of Alabama. The acknowledged Re-
publican majority in Dallas County was, at the State election of 1874,
4,957 ; in Hale County, 2,304 ; in Lowudes County, 2,953 ; in Wilcox
County, 2,126; in Perry County, 2,606; making a clear Republican
majority in the district of 14,946 votes. At the Presidental election in
1876 Hayes, Republican, received a majority over Tilden, Democrat, of
9,446 votes ; and in the same year, in the State election, Woodruff, In-
dependent, receiving Republican support, had a majority over Houston,
Democrat, for governor, of 9,115 votes. (Record, p. 170.)

In the Congressional election of the same year Rapier, running as
the regular Republican nominee, and Haralson, running as a bolting
candidate (both persons of the negro race), the joint majority over
Shelley, Democrat, was 6,256 votes. The census returns of 1880 show
that there are now in the counties composing the district 135,881 per-
sons of the negro race, and 32,855 white persons, disclosing a very large
increase of the negro race, so that on a calculation it may be assumed
that there is, in fact, now a majority of 18,000 negro Republican voters
over white Democratic voters in the district. (Record, pp. 169, 170,.
178.)

Under the election law of Alabama it is made the duty of the judge
of the probate court, the clerk of the circuit court, and the sheriff of each
county, thirty days previous to any election, to designate three inspect-
ors to hold an election in each voting precinct, two of which shall be
members of opposing political parlies. The sheriff'is made county return-
ing officer, and it is made his duty to send to each of the precincts in the
county ballot-boxes for the purposes of the election, and he is the peace-
officer who is to be present, in person or by deputy, at each election
precinct. (Ala. Code, 258, art. 2 ; sec. 259.)

It appears that the judge of the probate court< the clerk of the circuit
court, and the sheriff', whose duty it was to appoint precinct inspectors
of election, in all of said counties, were Democrats in politics and sup-
porters of the contestee ; and the same officers are by law made the
county supervising board to canvass the returns made by the precinct
inspectors of election appointed by themselves.

SMITH VS. SHELL LY. 35

DALLAS COUNTY.

It appears that previous to the election the officers whose duty it
was to appoint precinct inspectors in Dallas County, one of whom
should be of the opposing political party, were notified in writing- and
requested to obey the election law of Alabama in this respect, and.
give an opportunity to suggest some suitable men to act for the Re-
publican party, but they refused to do so. One of them (the sheriff)
stated u that if he received forty such notices he would pay no attention
to them." (Depositions of Roundtree and Judge Wood.)

It appears that in seven precincts of Dallas County, to wit, Pine
Flat, River, Mitchell's, Chillatchie. Cahaba, Martin's, and Lexington,
about which testimony has been taken, and for each of them three in-
spectors were appointed, two of whom were white Democrats and one
a negro, who was supposed to be a Republican on account of his color
that of the two white Democratic inspectors for each of the seven precincts
it appears that they were nor, present on the morning of the election to
open the polls, and the white Democratic inspectors, appointed by
county authority, failing to be present, the colored electors present, un-
der the election statute of Alabama, opened the polls and held elections
in said precincts; that the returns made of the result to the board of
county supervisors in Cahaba, Pine Flat, Mitchell's, River, Lexington,,
and Martin's were not in statutory form, and were for informality re-
jected, and the vote not counted by the boartl of county supervisors T ,
and that the sheriff, the returning officer, refused to receive the ballot-
box from Chillatchie precinct because it was a cigar-box, and it was
not before the supervising board. (Record, p. 133.)

It appears that no box was furnished as required by law. (Rec., p.
141.) The sheriff swears that he sent boxes. If he did the Democratic
inspectors had them probably and did not produce them, as they did
not act.

The returns being informal, irregular, and insufficient, and therefore
defective, went for nothing, and the votes cast not being counted for
the contestant or the contestee, and the balloVbox from Chillatchie not
being received, evidence is resorted to to prove the actual vote, under
the well recognized and settled rule stated by McCrary in his work OIL
Contested Election Cases (sec. 302, page 268 and 9; Littlefield vs. Green
(1 Chicago Legal Xews, 230) 5 Brightley's Election Cases, 493; Mc-
Kenzie vs. Braxton, Forty-second Congress; Giddings vs. Clark, Forty-
second Congress. (See sec. 304, p. 270, and sec. 81., p. 104, McCrary on
Contested Election Cases.) In Alabama, where this contested-election
case arose, the supreme court of that State lay down the law of con-
tested elections as follows :

It is the election that entitles the party to office, arid if one is legally elected by re-
ceiving a majority of legal votes, his right is not impaired by any omission or negli-
gence of the managers subsequent to the election. (State ex rel. Spence vs. The Judge
of the Ninth Judicial Circuit, 13 Ala. Rep., 805.)

Xor will a mistake by the managers of the election in counting the votes and declar-
ing the result vitiate the election. Such a mistake may and should be corrected ; the
person receiving the highest number of votes becomes entitled to the office. (State
ex. rel. Thomas vs. Judge of the Circuit Court, 9th Ala. Rep., 338.)

The returns from Pine Flat, River, Mitchell's, Cahaba, Martin's, and
Lexington precincts of Dallas County being declared irregular and in-
formal, as not coming up to statutory requirements, were not counted-
by the board of county supervisors for either candidate for Congress, and
the ballot-box from Chillatchie precinct being refused by the sheriff
was not before the board of county supervisors and was not counted by
them ; therefore, in such a case each candidate was required to prove the
actual number of ballots cast for him. The contestant introduces proof

36 DIGEST OF ELECTION CASES.

-as to the number of ballots cast for him at each of the precincts of Pine
Flat, River, Cahaba, Mitchell's, Chillatchie, Martin's, and Lexington ; the
-contestee introduces no proof whatever to rebut the proof made by the
contestant in this respect, nor does he show by any proof that he had
^any ballots cast for him for Congress, except from the evidence taken
by contestant.

The proof does not show that the sheriff wns present in person or by
deputy at any of the seven precincts referred to, and it is shown that
every white Democratic inspector appointed by the board of county su-
pervisors failed to appear and open the polls and hold an election, and
neither of the Democratic United States supervisors appointed by the
United States circuit court, on the petition of ten Democratic citizens
of the county, appeared at the said election precincts, except the Demo-
cratic United States supervisor at Pine Flat precinct, and his report to
the chief supervisor of elections agreed with the report of the Repub-
lican United States supervisor.

It appears that the county board of supervisors of Dallas County,
the largest Republican county in the district, appointed two intelligent
Democrats, supporters of the contestee, and although requested in
writing refused to appoint one intelligent member of the opposing
political party, but did appoint one ignorant negro supposed to be a
Republican on account of his color, to serve as precinct inspectors, and
that the two white inspectors did not appear at the election place to
open polls and hold an election, leaving -the ignorant negro inspector
to organize a board of inspectors from the negro electors present ; and
from the fact that the polls were opened and elections were held by the
uneducated negro qualified electors of said precincts, and from the
further fact that the statement of the vote cast, and the returns thereof,
were held to be irregular, informal, and insufficient, and therefore not
considered nor counted by the board of supervisors, because they were
not technically in accordance with the election law, we are reluctantly
impelled to the conclusion, particularly as each of said precincts is
largely Republican in politics, that there must have existed a well
planned and previously arranged conspiracy on the part of the Demo-
cratic election managers, by the absence of the Democratic precinct in-
spectors at the election place on the day of election, to have no polls
opened, and if opened under the election -statute by the uneducated
negro electors, then they hoped the statutory statement of the election
returned to the board of supervisors would be defective in form, and in
either event there would be a pretext or sufficient excuse for not con-
sidering the vote; but such a scheme, if formed, cannot be allowed to
be successful, as the committee have no difficulty on the proof in find-
ing that an election was held according to law and what the vote actually
was. (Code of Alabama, section 262.)

I therefore find, as matter of fact, that the ballots legally cast, but
not counted for contestant and coutestee in the said seven precincts of
Dallas County, and which should, as matter of law, be counted for them
in this contest, are :

For contestant. For contestee.

Pine Flat precinct 280 25

River precinct 314 1

Cahaba precinct 376 11

Mitchell's precinct 360 1

Chillatchie precinct 124

Martin's prucinct 384 16

Lexington precinct 320

Total 2,158 54

SMITH VS. SHELLEY. 37

RECAPITULATION.

For contestant 2, 158

For contestee '. - 54

LOWNDES COUNTY.

It appears from the proof in reference to the precincts of Pintlala,
Whitehall, Hopevrell, and Benton, in Lowndes County, that the
Democratic inspectors, appointed by the board of county supervisors,
failed to appear and hold the elections, except at Whitehall precinct.
At Hopewell the ballots cast for each candidate were not counted by
the board of county supervisors. The contestant proves that he had
cast for him 110 ballots, and that contestee had cast for him 17 ballots.
The returns of this precinct were excluded for irregularity and infor-
mality, and come under the ruling heretofore made, that ballots legally
cast should be counted as cast notwithstanding the action of the pre-
cinct inspectors.

(See record. Testimony of Willis Knight, pp. 195-198; Allen Hin-
son, pp. 198, 199; Exhibit, p. 334; J. V. McDuffie, pp. 211-216. Con-
testee's witnesses: S. Jones, pp. 546, 547; M. A. Graves, pp. 549-551;
F. M. Sullivan, p. 551.)

The evidence as to this precinct is conflicting. Only two inspectors
acted, as no others would serve. The Democratic inspectors would
not serve, although present. Their evidetice is to be taken with allow-
ance.

It appears that at the election in Benton, in the same county, the
appointed Democratic inspectors present on the morning of the elec-
tion refused to open the polls and hold an election, stating it was too
late to open the polls. The hour of nine o'clock having arrived, the
Republican colored electors present, seeing that no election was to be
held, organized, under the election law of Alabama, and held the elec-
tion, which resulted in having cast for the contestant 156 ballots. The
appointed Democratic inspectors, who said it was too late, and said
there would be "no election that day for Garfield or Bancock," opened
a second polling place and held an election, where 51 ballots were cast
for contestee. The box from this second polling place was received by
the county returning officer (the sheriff), and the box containing the
156 ballots cast for contestant was rejected by the sheriff and not
counted by the board of county supervisors. The contents of the ballot-
box are exhibited in the record. We hold, as matter of law, that the
sheriff should have received the ballot-box and permitted it to go before
the board of county supervisors; and further, as matter of law, that
after the first election polls were opened the second polls were not
authorized, and should not be recognized, and therefore the 156 ballots
cast at the first polling place should be counted for contestant. The
United States supervisors cannot be present where precincts are multi-
plied ; it would be a dangerous power, and may be used for the pur-
poses of corruption. (McCrary on Election Contests, sec. 108, pp. 120,
121; Sloan vs. Eawles, Fortv -second Congress; see record, testimony of
R. S. Abbott, pp. 1 85-188 ;" Exhibit, pp. 329,330; A. J. Edwards, pp.
188-193; Exhibit, p. 174; George Torrance, pp. 193-195; J. V. McDuf-
fie, pp. 211-216; contestee's witness, M. A. Graves, pp. 549,550; super-
visor's return, 329.)

At the election in Whitehall precinct, in the county of Lowndes, the
uncontradicted testimony shows that there were cast for contestant 276
ballots, and for the contestee 14 ballots, and it also appears that the pre-

248078

38 DIGEST OF ELECTION CASES.

cinct returning officer took the ballot-box used for the purposes of the
election to the sheriff, the county returning officer, who, being informed
of the vote cast for each candidate at Whitehall precinct election, re-
fused to receive or receipt for the box, because it was a pipe-box that
had been used for the purposes of the election. This county returning
officer is a Democrat in politics, and an ardent supporter of the contestee,
and after refusing to receive or receipt for the box he desired the pre
cinct returning officer to put the box on a desk in his office, which was
done. It is in proof that the ballot-box, when deliveied to the pre-
cinct returning officer, had in it, properly secured, the whole number
of ballots cast, 276 of which were cast for contestant and 14 were cast
for contestee, and the list of voters who cast ballots at the election,
which is exhibited in the record. When this ballot-box was before the
board of county supervisors its appearance showed that it had been
opened from the bottom, and by this means .-tuffed with fraudulent
baWots instead of the true ballots cast by the electors. All of contest
ant's ballots found in the box when opened, to the number of 54, had a
hole in the middle of each as if having been strung upon a string, and
were folded, and looked as if they had been cast, and the other ballots
found in the box looked as if they had not been cast, and in the shape
they were could not have been cast at the election by being put through
the hole in the lid of the box; the ballots were not counted by the
.board of county supervisors.

We can reach no other conclusion from the facts and circumstances
than that the ballot-box was fraudulently tampered with whilst in the
sheriff's office, and before it was brought before the board of county
supervisors. We hold that the pipe-box used for the purposes of the
election was not objectionable, and should have been receipted for, and,
as a matter of law, we hold that the contestant should have counted
for him the 276 ballots cast, and that the contestee should have counted
the 14 ballots cast for him. (See record. Testimony of Philip White,
pp. 176-178; Exhibit, p. 346; Robert Payne, pp. 379-181; Major White,
pp. 181-185; Willis Brady, pp. 199, 200; J. Y. McDuffie, pp. 211-216;
coutestee's witness, M. A. Graves, pp. 549, 550.)

At the election held at Pintlala precinct, in the county of Lowndes,
it appears from the proof that after the electors had cast their ballots
the closing hour had arrived, and the counting of the ballots cast should
have commenced. A voter of the precinct appointed to act as one of the
three inspectors previous to the election, an active supporter of the con-
testee, but who refused to act on the morning of the election, entered
the polling room, having with him a sachel with a partition in the
middle, in one side of which he had a cigar-box stuffed with false bal-
lots, and took from the table the ballot-box, into which the voters dur-
ing the election had cast their ballots, and placed it in the empty side of
the sachel. In a few minutes a confederate, in a buggy, called him. He
took from the sachel the fraudulent stuffed box and placed it upon the
table, closed the sachel containing the true ballot-box and ballots, and
jumped into the buggy and left with his confederate. The false ballot-
box reached the board of county supervisors certified to by the election
officers as a false and not the true box. From the proof made it is shown
that at the time of the robbery of the true box there were in it 320 bal-
lots cast for contestant, and 40 ballots cast for contestee.

We hold that all the facts and circumstances show a bold device and
conspiracy to destroy the result of the election at Pintlala precinct,
and, as a matter of law, that the true vote for contestant and contestee
-should be counted for each. (Chapman vs. Ferguson, 1 Bartlett, 267.)

SMITH VS. SHELLEY. 39

Contestant 320

Oontestee 40

(See record. Testimony of Samuel M. Duncan, pp. 200-203; W. D.
Gaskin, pp, 203-207 ; Exhibit, pp. 344, 345 ; Samuel Lee, pp. 207, 208 ;
J. V. McDuffie, pp. 211-216 ; contestee's witness, B. W. Mason, pp.
554, 555.)

Contestant, by the proof, shows the true vote cast for himself and
the coutestee at the election held in Hopewell, Benton, Whitehall,
and Pintlala precints, in the county of Lowndes, which should be
counted for each, as follows :

Hopewell precinct ..............

For contestant.
116

For contestee.
17

Benton .................... ......

156

Whitehall . ...

276

Piutlala ..

320

Total -. 868 71

RECAPITULATION.

For contestant 858

For contestee 71

HALE COUNTY.

There seems to be no controversy about the election in Hale County,
except as to Newbern precinct, and as to that election contestant's
claim is that it is shown by the proof that after the balloting was over
on the day of the election, the box into which the electors cast their
ballots was changed for a fraudulent, false, and stuffed ballot-box. One
of the inspectors, a Democrat and supporter of contestee, was caught
in the very act. The stuffed box was sent to the board of county super-
visors, who refused to count the vote for either candidate for Congress,
and the box was last seen before the United, States grand jury at Mo-
bile. If this claim is sustained, the fraudulent conduct of the Demo-
cratic election inspectors appearing, and not having attempted to make
a statement of the true vote cast, or the intended fraudulent count in
favor of the coutestee, we hold the true issue in an election contest in
Congress or in the courts to be

1st. Was there an election held.

2d. Who received a majority of the legal votes cast.

The proof shows that there was an election held, and that the con-
testant had cast for him 398 ballots, and that the contestee had cast for
him 103 ballots. The fraudulent conduct of election officers cannot
deprive the injured party of the votes legally cast for him by the elect-
ors, for it is the election that entitles the party to office, and that right
is not impaired by the conduct of election officers subsequent to the
election. (13 Alabama Eeps., 805 ; Chapman vs. Ferguson, 1 Bartlett,
267.)

I am of the opinion that the vote cast at Newbern, and not counted
for either candidate, should be counted on the proof, as follows :

For contestant 398

For contestee 103

(For proof see record. Testimony of Merritt House, pp. 300-305;
Exhibits, pp. 429-431; E. J. Lavender, pp. 305-308; Exhibits, pp.
.318-321 ; Lawson Hill, pp. 308, 309 ; Exhibits, pp. 321, 322 ; Granville
Thompson, pp. 312, 313; Exhibit, p. 323; J. Huggins, p. 432. Con-

40 DIGEST OF ELECTION CASES.

testee's witness, Sam. Bennett, pp. 485, 486 ; Bob Hay wood, pp. 486 r
487 ; M. S. Herran, pp. 488, 489 ; F. L. Huggins, p. 489 j Dennis Starky r
p. 489.;

PERRY COUNTY.

The Democratic inspectors, appointed by the board of county super-
visors, opened the polls and held elections in the precincts of Marion
No. 1, Cunningham's, Walthall's, Scott's, and Pope's, in Perry County.
The proof shows that the board of county supervisors refused to obey
the election law of the State, at least in spirit, as to appointing one of
the three inspectors from the opposing political party (Eecord, p. 254) ?
and that at Walthall's and Cunningham's precincts the United States-
supervisors were refused admittance by the inspectors to the polling-
room, and they were unable to be present to witness the casting and the
counting of the ballots, and the manner of conducting the election pro-
vided for by the United States election law, so that each candidate
should have the benefit of every vote for him cast.

The election in Marion precinct No. 1, in the county of Perry, was-
held by the inspectors appointed previous to the election, two of whom
were supporters of the contestee, and the proof, as contestant claims,
shows that at that election precinct contestant had cast for him 827
ballots, and the contestee had cast for him about 222 ballots, yet
the election inspectors return contestant as having cast for him only
89 ballots, and the coutestee as having cast for him 363 ballots, show-
ing a false count against the contestant of 238 ballots, and a false count
in favor of the contestee of 141 ballots. Outside of the false count and
false return made by the inspectors at this precinct, the evidence tends
to show such conduct on the part of the inspectors during the election
that no credit can be given to their return ; it proves nothing, and other
evidence must be resorted to to show the true number of ballots cast
for each candidate. (McCrary on Election Contests, p. 234.) The
uucontradicted false count of ballots cast for each candidate, and the
uncontradicted evidence showing the conduct of the election officers at
Marion precinct No. 1, bring us to the conclusion that the ballots cast
and proven for each candidate must be counted for each, as shown by
the proof, and not by the returns. Contestant is entitled to and should
receive credit for 327 ballots, less the 89 ballots counted for him, and
from the contestee's vote should be deducted 141 ballots.

False count against contestant 23$

False count in favor of contestee 141

(See record. Testimony of J. P. Billingsley, pp. 253, 254; James F.
Bailey, pp. 259-263; Exhibit, p. 288; S. B. Price, pp. 263-269; Exhib-
its, p. 286, pp. 401, 402 ; Ed. Spaulding, pp. 269-274 ; Matt. P. Boyd r
pp. 274-278 ; Exhibit, p. 288.)

At Cunningham's precinct in the county of Perry, after the United
States supervisor was rejected, there was no opportunity offered to-
scrutinize the manner of conducting the election inside the polling-room,,
but it is claimed to be shown by proof, uucontradicted, that there were
cast for contestant 315 ballots, and for the contestee 40 ballots ; yet the
Democratic inspectors in the return made of the result count the contes-
tee as having received 210 ballots, and the contestant as having received
135 ballots ; showing a false count against contestant of 180 votes, and
a false count in favor of the contestee of 170 votes. The proof, uncon-
tradicted, shows, as is claimed, a fraudulent and false count of the bal-

SMITH VS. SHELLEY. 41

lots cast ; the returns are attacked for fraud and each candidate must
prove his vote ; the contestant has proved the actual vote cast for himself
and the contestee, and they should be counted as cast ; the rule of law
in such a case being to set aside the returns without reference to what
appears on their face (Ferguson vs. Chapman, 1 Bartlett, 267 ; McCrary
on Election Contests, pp. 309, 310). We hold further that the United
States supervisor at an election poll is made a part of the State election
machinery and that the State inspectors had no authority to refuse ad-
mittance to the United States supervisor, and their refusal was improper
and not warranted in law.

False count against contestant 180

False count in favor of contestee 170

(See record for evidence of above. Testimony of Henry Wells, pp.
279-281 ; Nix Stevens, pp. 281-285; Beverly Smith, pp. 298-300; Will-
iam Jenkins, p. 387 ; J. P. Billingsley, pp. 253, 254.)

The Democratic inspectors at Walthall's precinct, in the county of
Perry, refused, as at Cunningham's, to permit the United States super-
visor to enter the polling-room, as provided by the election law of the
United States, and therefore he was unable to scrutinize the manner of
conducting the election, or to witness the count of the ballots cast for
each candidate, so that each candidate for Congress should have the
benefit of every ballot for him cast. The rejection of an United States
supervisor, commissioned to be present, was not authorized by law.
The proof shows that contestant had cast for him at Walthall's pre-
cinct 336 ballots, and for the contestee 34 ballots were cast; the inspect-
ors return as the vote for contestant 150 ballots, and for the contestee
they return 215 ballots, showing a fraudulent count against contestant
of 186 ballots, and a fraudulent count in favor of contestee of 181 bal-
lots. The statement of the inspectors as to the ballots cast and counted
for each must be set aside, and then it is the duty of Congress, with-
out reference to the face of returns, to ascertain for whom the ballots
were actuallv cast at Walthall's precinct (McCrary on Election Contests,,
pp. 309, 310"; Washburn vs. Voovhies, 2 Bartlett, 54).

We hold as matter of law, from all the facts, that the vote cast should
be counted for each candidate as cast, notwithstanding the false return
made by the precinct inspectors.

False count against contestant 18&

False count in favor of contestee 181

(See record for evidence of above testimony of William Q. Smith, pp.
168,169; J. P. Billingsley, pp. 253,254; Latch Evans, pp. 309-311;
Exhibit, pp. 323, 324; Lee Andrews, pp. 311, 312 ; E. B. Jones, pp. 384,,
385.)

At Hamburg precinct, in the county of Perry, an offer to bribe the
United' States supervisor appears to have been made by one of the
election officers, and this failing, a fraudulent, false, arid stuffed box
was substituted for the ballot-box into which the electors had cast their
ballots, and a return was made by the inspectors to correspond with
the substituted box.

The proof shows the number of ballots cast for each candidate to be
338 ballots for the contestant and 40 ballots for the coutestee. The
false count from the substituted box, as made by the precinct inspect-
ors' consisted of making it appear that there were cast for the con-
testee 207 ballots, and for the contestant 88 ballots.

The returns being set aside for fraud, the election stands, and each
candidate is left to the proof of the votes cast for him (Washburn vs*

42 DIGEST OF ELECTION CASES.

Voorhies, 2 Bartlett, 54 ; Reed vs. Julian, 2 Bartlett, 882 ; Norris vs.

Hundley, Forty-second Congress; McCrary on Elections, page 312).

To the proof made by contestant no counter-proof is introduced, and

we hold the true vote cast at Hamburg should be counted as proved :

False count against contestant 250

False count in favor of contestee 167

(See record for evidence of above. Testimony of B. F. Watson, pp.
104-111 ; 398, 399 ; Green Johnson, 144-147 ; J. F. Harris, pp. 254-259 ;
Exhibit, p. 288 ; J. P. Billingsley, pp. 253, 254.)

At Scott's precinct, in the county of Perry, the United States super-
visor swears that one of the State inspectors gave him $35 as a con-
sideration for changing ballots cast for contestant, by striking out
contestant's name on the ballots and writing thereon coutestee's name,
which was done. The proof taken as to the election at Scott's precinct
shows that contestant had cast for him 470 ballots, and that the con-
testee had cast for him 37 ballots, hut when the precinct inspectors
made their return contestant is credited with only 196 votes, whilst the
contestee had counted for him 227 votes, showing a false count against
contestant of 274 votes, and a false count in favor of the contestee of
190 votes.

We are of the opinion that the votes should be counted as cast for
each candidate* -

False count against contestant 274

False count in favor of contestee 190

(See record of evidence of above. Testimony of Walter Lowry, pp.
155-164, 165, 166, 388-391; J. P. Billingsley,' pp. 253, 254; Lazarus
A very, pp. 292-296; William Henderson, pp. 296-298; Exhibit, pp.
322, 323; coutestee's witnesses, C. \V. Tin pin, pp. 481, 482 ; J. C. Lee,
pp. 482, 483; L. N. Driver, pp.483, 484; E. Evans, p. 484; C. Schon-
berg, 485 ; E. Perryman, p. 485.)

At the election in Pope's precinct, in the county of Perry, contestant
shows, by the proof (uucontradicted), that there were cast for him 300
ballots, and for the contestee 30 ballots; that after the election was
over and the polls closed, and about the time the counting of the bal-
lots cast should have commenced, one of the three inspectors said he
'was sick, left the polling room and returned no more that day ; the
other inspectors, Democrats in politics and supporters of the coiitestee,
refused to count the ballots for either candidate in the absence of the
sick inspector, and forwarded the box and ballots uncounted to the
board of county supervisors, who were not, under the election law of
Alabama, authorized to count the ballots, and neither candidate had
the benefit of the ballots cast for him. Upon the facts, as matter of
law, we hold that the two inspectors might have properly counted the
ballots and have made a return of the result to the board of county su-
pervisors in the absence of the sick inspector, but as this was not done,
and as each candidate is by law entitled to every ballot for him cast,
notwithstanding the omission of the precinct inspectors to count the
ballots, it becomes the duty of the House of Representatives to ascer-
tain from the evidence the true state of the vote, and the House cannot
be estopped from considering the effect of the proof presented. (Norris
vs. Hundley, Forty-second Congress; McCrary on Election Contests,
312 ; Ex parte Ellyson, 20 Grat. Va,, 10.)

Under the proof contestant is entitled to have counted 300 votes, and
the contestee to have counted 30 votes, being the number of ballots
<jast for each candidate at Pope's. .(See record for proof of above. Tes-

SMITH VS. SHELLEY. 43

tiinony of agreement, p. 285 ; S. T. Smith, pp. 314-316; Exhibit, p. 383;
Henry Eobinson, pp. 316, 317; Lindsey McDaniel, pp. 317, 318; S. S.
Pickering, p. 384; J. P. Billingsley, pp. 253, 254.)

AVILCOX COUNTY.

The proof in reference to the election at Prairie Bluff precinct, in the
county of Wilcox, establishes the fact that there were actually cast for
the contestant 305 ballots and for the contestee 23 ballots ; the vote
as polled was returned to the board of county supervisors, who declined
to count the returns, because of an omission to insert the name of the
precinct. On the cover of the box was written Prairie Bluff; the in-
spectors 'at this precinct, all white men, may have omitted to insert in
the returns the name of the election precinct, but the proof supplies the
omission and establishes the fact that the box was from Prairie Bluff
precinct, and shows the vote cast for each candidate as above stated.
An exhibit of the name and number of each elector, the statement, and
the ballots themselves, are in evidence. Under the facts, we hold that
the evidence establishes the name of the precinct, the number of ballots
cast, and for whom cast, and that they should be counted as cast for
each candidate ; no proof is offered to rebut the testimony produced on
the part of contestant, and, as a matter of law. it is the election that
entitles the party to office, and if a majority of legal votes are cast, any
fraud, omission, or negligence of managers subsequent to the election
cannot impair the party's right. (State ex'rel. Spence, 13 Ala., 805; 1
Bartlett, 267; McCrary on Election Contests, sec. 554.)

Contestant 305

Contests 23

(See record. Testimony of Thomas J. Sykes, pp. 225-228; Exhibit,
pp. 408, 409; Milton Brooks, pp. 2J8-230 ; B. M. Young, pp. 240-250;
Exhibit, pp. 221, 222; E. D. Morrill, pp. 234-240; E. W.Locke, p. 405.)

I have. not deemed it necessary to take into consideration the
votes cast and not counted for contestant in the precincts of Bethel,
Eose Bud, and Canton, in the county o Wilcox, where contestant
claimed large majorities, rejected by the board of county supervisors on
account of irregularity and omissions in the returns, nor have they con-
sidered Brooks's precinct, in the county of Lowudes, nor Camden, Snow
Hill, and Pine Apple precincts, in the county of W r ilcox, where^coutest-
ant claimed large majorities, but' where fraudulent returns were
claimed to have been made by the precinct in specters, nor Selma, Burns-
ville, and Valley Creek precincts, in the county of Dallas, where con-
testant claims that large' numbers'of Republican electors who would
cast their ballots for him were afforded no opportunity to do so, the
polls not having been opened, because, if considered, it would only add
to the contestant's majority.

The tabulated statement herewith submitted, marked Exhibit A,
shows the true vote cast for each candidate, and which should be counted
for each of them in this contest, audit shows the majority of votes
counted for the contestant, from which it appears that contestant was
elected to a seat in the Forty-seventh Congress of the United States
from the fourth Congressional district of Alabama :

EXHIBIT A.
The contestant is returned as haviujj received, a total vote of 6,650

Add ballots cast for contestant and thrown out by the board of county
supervisors for informality in ret urns. &c. :

Cahnba precinct, Dallas County 376

Pipe Flat precinct. Dallas County 280

44 DIGEST OF ELECTION CASES.

Mitchell's precinct, Dallas County 360

River precinct, Dalbs County 314

Lexington precinct, Dallas County 320

Martin's precinct, Dallas County 384

Chillatchie precinct, Dallas County 124

2, 15&

Pintlala precinct, Lowndes County * 320

White Hall precinct, Lowndes County 276

Hopewell precinct, Lowndes County 116

Benton precinct, Lowndes County 156

HIS

Prairie Bluff precinct, Wilcox County 305

Pope's precinct, Perry County 300

Newbern precinct, Hale County 398

Add ballots cast for contestant and fraudulently not counted for him by
the precinct inspectors :

Walthall's precinct, Perry County 186

Cunningham's precinct, Perry County 180

Scott's precinct, Perry County 274

Hamburg precinct, Perry County 250

Mariou precinct Xo. 1, Perry County 238

1,128

Contestant's vote 11, 807

The contestee is returned as having received a total vote of 9, 301

Add ballots cast for contestee and thrown out by the board of county
supervisors for informality in returns, &c. :

Pope's precinct, Perry County 30

Prairie Bluff precinct, Wilcox County 24

Cahaba precinct, Dallas County 11

Pine Flat precinct, Dallas County 25

Mitchell's precinct, Dallas County 1

River precinct, Dallas County 1

Martin's precinct, Dallas County 16

Pintlala precinct, Lowndes County 40

White Hall precinct, Lowndes County 14

Hopewell precinct, Lowndes County 17

Newbern precinct, Hale County 103

282

Contestee's assumed vote 9, 583-

Deduct from the above assumed vote the following votes fraudulently
counted for contestee by the precinct inspectors of election :

Walthall's precinct, Perry County 181

Cunningham's precinct, Perry County 170

Scott's precinct, Perry County 190

Hamburg precinct, Perry County 167

Marion precinct No. 1, Perry County 141

Contestee's vote 8, 734

Contestant's vote 1 1 , 807

Contestee's vote 8, 734

Contestant's IT ajority 3, 073-

It was contended at the hearing that inasmuch as the statute of Ala-
bama provides that the ballot-boxes with the ballots shall be kept by
the inspectors for sixty days for use in case of a contest, contestant was
bound, as his best evidence, to procure and put in evidence the ballots
themselves when proving what the actual vote was. It is claimed, or
appears, however, that in many, if not most, of the instances where

SMITH VS. SHELLEY.

there was occasion to do this, if important, the boxes had not been kept
as required by law, but had gone and been allowed to go into other
hands. Whatever may be the rule otherwise, it certainly could not ap-
ply in such a case.

I find that several of the parties named in this report, and charged
with frauds upon the election law in the election in question, were duly
presented to the grand jury and indicted for the same. Some of the
boxes in question had been taken and used before the grand jury in
their investigations. There is no record of any conviction or acquittal
of the parties indicted. The fact of indictments having been found is
of course no competent evidence to impeach the parties as witnesses, and
the committee have not so considered it.

Mr. Stephens seems to have been only nominally a candidate, and I
am impressed with the belief that he got in fact less votes .than were
.given for him in the official count, which was 1,693.

County.

Charles M.

Shelley.

James Q.
Smith.

W. J.

Stephens.

Dallas .

1,869

1 333

Hale

1,736

1,043

442

1 549

1,621

477

Perry .

2,293

1,389

682

Wilcox . ...

1,854

1,264

Total

9,301

6,650

1,693

Said Smith has died pending the contest.

I recommend the adoption of the following resolutions :

Resolved, That Charles M. Shelley was not elected as a Representa-
tive to the Forty-seventh Congress from the fourth Congressional dis-
trict of Alabama, and is not entitled to retain the seat which he now
occupies in the House.

Resolved, That James Q. Smith was duly elected as a Representative
from the fourth Congressional district of Alabama to the Forty-seventh
Congress, and having deceased, the seat is declared vacant.

Mr. BELTZHOOVER, from the Committee on Elections, sub nitted the

following : -

VIEWS OF THE MINORITY:

The fourth Congressional district of Alabama is composed of the
counties of Dallas, Lowudes, Hale, Wilcox, and Perry.

It is true that the colored persons inhabiting this district are largely
in excess of the whites, there being 135,181 of the negro race and 32,855
of the white race, but as to how the voting population is divided polit-
ically there is nothing in the evidence to show, unless assumptions of
two persons may be considered as evidence.

One of these gives as his opinion that 97 per cent, of the colored peo-
ple were Republicans, and this opinion is based upon his experience in
1876, when he made a political canvass of the district. (Rapier's Ex. R.,
p. 154.) These persons are both active political partisans and members of
contestant's party. It is, therefore, a mere opinion based upon an opin-
ion, which has little or no solid foundation, to assume that there was

46 DIGEST OP ELECTION CASES.

18,000 majority in this district. If there was such a majority of negro
voters, it has been so divided among opposing candidates, so weak-
ened by dissension and division, that its power at the polls has never
been exerted. As evidence of this we find that the board of canvassers
of each of the counties of the district, composed of the judge of probate r
the sheriff, and clerk of the circuit court of each county, who are elected
by the people, are members of the Democratic party. It is also true
that 1 since this Congressional district was formed there have never been
Jess than two candidates for election as Representative in Congress
claiming to be the candidates of the Republican party.

At the Presidential election of 1876 the Republican majority for Hayes
in this district was only 9, 115 (R., p. 170), and in the same year the joint
majority for the two Republican candidates for Congress was only 6,256.
There were two candidates for Congress claiming to be Republicans at
the election of November, 1880. These were the contestant and Wil-
liam J. Stevens. Their names were submitted to a Congressional con-
vention, which was unable to effect even a temporary organization be-
cause of the wranglings and dissensions among its members. Contest-
ant's witness, Mr. J. T. Harris, gives it as his opinion that Mr. Stevens
was the real candidate of the convention, though there was so much
confusion andjso little of order or propriety observed, that it was difficult
to say that any one received the nomination (R., p. 258). There was no
question of principle involved in this wrangling, and it was evidently the
result of political trickery and the selfish wrangles of petty politicians.
It is notorious that the scenes at this convention were but a repetition
of what had uniformly occurred at previous Congressional conventions
in that district ; it will therefore not be surprising if we find, as we shall,
that the ignorant, though honest, colored voter who adhered to the Re-
publican party, being unable to decide who was entitled to his vote as
the Republican candidate, became disgusted and indifferent and refused
to take part in the conduct of elections or to attempt to vote.

The evidence shows that in the county of Dallas no election was con-
ducted at one-half of the precincts in the county, and no attempt made
by the Republicans to open the polls and conduct the election in those
precincts, although there was not the slightest impediment or obstruc-
tion placed in the way of any three Republicans, in any of these pre-
cincts, who had sufficient interest in the election to act as inspectors
and open the polls, and though a Republican United States supervisor
had been appointed for each of the voting places in this county to ad-
vise and assist.

DALLAS COUNTY.

In this county testimony is taken in relation to seven precincts, to
wit: Pine Flat, River, Mitchell's, Chillatchie, Martin, Lexington, and
Cahaba. In relation to these precincts, it is complained, first, that the
county board of supervisors appointed two Democrats and one igno-
rant negro as the board of inspectors for each voting place ; and, sec-
ondly, that the Democratic inspectors who were appointed failed to be
present and act on election day. As to the first complaint, the law re-
quires that at least two of the inspectors at each voting place shall be-
long to different political parties, and it is not denied that to this extent
the board of canvassers complied with the law in appointing the inspect-
ors ; but it is said that the Republican inspector thus appointed was al-
ways an ignorant man. While we fail to find testimony to sustain this
allegation, yet we would ask, How was itpossiblefor more intelligent rep-

SMITH VS. SHELLEY. 47

resentatives of the Republican party to be appointed ? It will not be
denied that iu every precinct in Dallas County about which evidence
has been taken all the officers of the election, to wit, the three inspect-
ors, the two clerks, and the United States supervisor, were Republicans,,
chosen by Republicans, and yet we find that for not one voting precinct
in ihe county did they make a return which was not so defective and
irregular that the board of county canvassers were compelled by law to-
reject it. The ''return" consists simply of a certified copy of the poll-
list, and a statement of the vote received by each person, and for what
office. Certainly it required no great degree of intelligence to malp
th '.) roperly, and yet, presumably from ignorance, not one of the six
Republican officers at each voting-place, nor all of them together, were
able to make out a correct return. This being so, how could the board
of supervisors of the county select an intelligent inspector to represent
the Republicans in each precinct; and how can anyone with justice
say that their failing to do so is evidence of a conspiracy or combina-
tion to defraud the voter \ As to the failure of the Democratic inspect-
ors to act, it should be borne in mind that the laws of Alabama ex-
pressly provide that no person appointed as inspector shall be bound ta
act as such, or liable to any penalty for failure to act, until he shall have
either performed some act as such inspector or taken the oath provided
for inspectors ; and is it a just cause of complaint, or for imputation of an
evil intent on the part of the Democrats, because they failed to take part
in the election and left the Republicans entirely "free and untrammeled
to conduct the polls ? Could they ask more than this f It should be
remembered that the evidence shows there was not the slightest at-
tempt on the part of the Democrats in this county on election day to-
interfere with or impede the Republicans in their conduct of the elec-
tion.

The law of Alabama is that should any of the inspectors appointed
fail to appear and open the polls at the proper time, any one or more of
them who may be present may complete the number from the by-stand-
ers, and if all of them fail to appear any three qualified electors may
act as inspectors and open the polls. Now, if one party consents that
the polls shall be entirely within the control and conduct of the other
party, can it be gravely said that the latter has cause to complain !
But there is a significant reason why Democrats appointed as inspect-
ors should have a hesitancy to act. On pages 219 and 220 of the rec-
ord will be found the names of persons who have acted as Democratic
officers at elections at this and previous elections, and who have been
indicted in United States courts for violation of the election law. As.
evidence of the facility with which these indictments have been found,
and as an example of their character, we will ask attention to the in-
dictments against Charles W. Turpiii and John C. Lee, against whom
an indictment was filed in the United States circuit court at Montgom-
ery, charging them with a violation of the election laws. These men
were Democratic inspectors at Scott's precinct, in Perry County. The
occurrences at the election at that precinct are in evidence. But the
only evidence of wrong-doing by the inspectors was contained in the
testimony of one Walter Lowry, a Republican supervisor, who swears
that Mr. Turpin gave him (Lowry) 835 to permit the ballots which had
been cast to be changed and altered; that he accepted and retained the
bribe and permitted the unlawful acts to be committed, and indeed
made himself a party to their commission. (R., p. 159.) It is on the
testimony of this witness that these men were indicted and will be
compelled to undergo a trial. This Lowry is, upon his own admission,

4S DIGEST OF ELECTION 1 CASKS.

utterly unworthy of belief. Is it therefore surprising' that Democrats
are not eager to conduct elections for the benefit of Republicans when
they may thus lay themselves liable to charges of this character !

As the returns from the precincts mentioned, were rejected, and there-
fore not included in ascertaining the vote of the county, it was clearly
competent for the contestant or contestee to establish the vote by evi-
dence if at any of them a lawful election was held. The contestant
attempts to establish his vote, and it is for us to ascertain whether or
not he has succeeded.

. As the sitting member held the seat by a title prima facie sufficient,
it is incumbent on the contestant to affirmatively prove this title defect-
ive. This rule is well stated in the celebrated New Jersey case (1 Bart-
lett, pp. 24 and 26) :

Before a member is admitted to a seat in the House something like the judgment
of a court of competent jurisdiction has heen pronounced on the right of each voter
\vhosevotehasbeenreceived, and in order to overturn the judgment it must have
heen ascertained affirmatively that the judgment was erroneous. When the

polls are closed and an election is made, the right of the party elected is complete ;
lie is entitled to the returns, and when he is admitted there is no known principle by
which he cau be ejected, except upon the affirmative proof of the defect in his title.
Every effort to oust him must accomplish it by proving a case. The difficulties in
his path can form no possible reason why the committee should meet him half way.
The rule of reason requires that he should fully make out his case even though it re-
quire proof of a negative, and such is also a rule of Parliament in analogous cases.

The burden of proof being upon the contestant, by what character of
evidence should he be required to prove his case ? The ordinary rules
of evidence must of course apply to election contests as well as to other
cases. (McCrary on Elections, sec. 306.) One undeviating rule of evi-
dence is that the best evidence must be produced of which the nature
of the case will admit ; that secondary cannot be substituted for primary
evidence unless it be shown that the latter is not within the power of
the party, and the former should certainly not be substituted for the
latter when it is apparent that the primary evidence is within the reach
of the party and is by the laic placed within his power.

Now, there are certain documentary evidences of the election which
the law of Alabama provides should be preserved for the sole purpose
of furnishing evidence of the vote in case of contest ; these are the
ballots which were cast at the election. The ballots cast at each voting
place, together with one poll-list, are required to be carefully sealed up in
the ballot-box and delivered into the custody of one of the inspectors,
who is required to retain it for sixty days intact, and then to destroy
the contents of the box, unless he 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 for such election until such contest is finally
determined, or until such box is demanded by some other legal custo-
dian during such contest. (Section 288, Code of Alabama.)

It will be seen that the ballots are required to be preserved expressly
for the contestant. These are the evidences of the result of the elec-
tion which the law provides. In addition to this the certified poll-lists,
statements, &c., which are returned by the board of inspectors of each
precinct and the county board of canvassers, are required to be retained
intact in the office of the judge of probate. (Section 293, Code of Ala-
bama.)

Now, if the returns are made by the board of inspectors and are at-
tacked, or if insufficient or defective returns or no returns are made,
will it be denied that these ballots are the best evidence of the result-
of the election, especially where it must be admitted from the nature of

SMITH VS. -SHELLEY. 49

the case that the ballots in the box retained by law for the purpose of
evidence are the genuine ballots which were cast at the election? And
if it be true, as it is, that the ballots from the election at each of these
precincts in Dallas County were placed in the custody of the Republican
inspector by the Republicans, that they were received from the hands
of the voter by Republicans only, counted by Republicans only, placed
in the box aud sealed up by the Republicans only, will it be gravely
contended that the contestant should be permitted to offer secondary
and inferior evidence to prove what the vote was at the several voting
places without having attempted to put these ballots in evidence, or
furnish any reason or excuse whatever -for his failure to do so? In no
instance is any inquiry made for the ballots, nor is any effort made to
produce them, not even where the testimony itself shows to whom the
ballots were committed, and even in those cases where the person who
had the ballots in his custody, as shown by the testimony, appeared
and was examined as a witness by the contestant. Without showing
that the ballots weronot in his power to produce, contestant resorts to
oral evidence. This he clearly could not do. Oral evidence cannot be
substituted for any instrument which the law requires to be in writing,
aud no proof can be substituted therefor so long as the writing exists
and is in the power of the party. (Greenleaf on Ev., sec. 86, vol. 1.)

In the contested-election case of Spencer vs. Morey (Smith's Digest,
p. 449) it was admitted by both parties that no official returns could be
found, because they had been abstracted or destroyed. This being the
case, the minority of the committee say :

The best evidence, viz, the returns, having been lost or destroyed, secondary evi-
dence is then admissible to establish what was the contents of the written instrument,
viz, the returns. We understand the rule governing the adinissibility of secondary
evidence with respect to documents to be that proof of their contents may be estab-
lished by secondary evidence, first, when the original writing is lost or destroyed;
second, when its production is a physical impossibility, or at least highly inconven-
ient (p. 480).

In this case it is not shown that any of these conditions existed to
justify the introduction of oral testimony. We can only conjecture why
contestant failed to have the ballots produced, but we cannot avoid the
suspicion which the law itself creates that the failure to produce the
ballots was because they would not conform to the imperfect returns or
the unreliable testimony of the witnesses for the contestant. If this
plain principle of law be not disregarded, it is unnecessary to further
consider the testimony in relation to these precincts ; but we think that
an examination into the testimony produced will show that contestant
has failed to establish the vote by satisfactory evidence.

In Martin's precinct the testimony shows (R., p. 120) that a large
number of the colored voters were Democrats, and there were three
recognized candidates for Congress at the election, viz, contestant,
coutestee, and W. J. Stevens.

Two witnesses are examined by contestant to establish the vote of
this precinct. These are A. Martin (R., pp. 121 to 124), Ned Pettiway
(R., pp. 114 to 121). Martin was an inspector of -the election, and he is
the only officer of the election who is examined. He states that he helped
to count the ballots, though he could not read, and could not tell a
Republican from a Democratic ballot (R., p. 123). He says, on p. 122 :

Myself and Nathan and another counted them ; we put them on the floor, counted
them in two hats, one by one, and made a tally of them.

Ned Pettiway swears that he gave the inspectors the directions "how
H. Mis. 35 4

50 DIGEST OF ELECTION CASES.

to count and how to tally ;" that they did not know, and he had to
stand outdoors and give them directions. He swears the tickets were
counted by three separate men at the same time, each of them having
a pile of the tickets and counting them in his hat. And he swears posi-
tively that these tickets were never read over but once, and then were
read simply as " Eepublican " or " Democrats."

A. Martin says that the clerks read the names on the tickets, and it
is not pretended that any of the inspectors read them. He only knows
that there were sixteen Democratic votes cast, because, as he states
(E., p. 124), " I made them [the clerks] hand them out to me."

To show how unreliable is the testimony of the witness Martin, and
of these witnesses generally, we ask attention to his statement (B., p.
124) where he swears positively that the statement of the result of the
election was signed by the inspectors; and yet when that statement is
put in evidence it is found to be unsigned. Now, if these ballots were
simply counted as Democratic or Republican, and if all the candidates on
the Eepublican ticket were the Eepublican candidates, and all the can-
didates on the Democratic ticket were only Democratic candidates, how
is it possible to determine from this testimony whether or not Mr. Ste-
vens received any votes H The law of Alabama in regard to the count-
ing of ballots is as follows :

SECTION 1. In counting out, the returning officer OK one of the inspectors must take
the ballots one by one from the box in which they have been deposited, at the same t' me
reading aloud names of 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 belief that the same
was done with a fraudulent intent, they must be rejected ; or if any ballot contains
the nameu of more than the voters 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.

When asked what oath was taken by the inspectors, the witness
Martin, tells us :

I swore the inspectors; I told them to raise their hand and say. you solemnly
swear to go forth aud do the best they could in this election to discharge those
duties.

The law makes the following provision as to the oath :

Before opening the polls the inspectors and clerks may take the oath to perform
their duties at such election in accordance 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 ot the voters en-
rolled, which oath may be administered to the|inspectors by each other, or by a return-
ing officer, or by a justice of the peace. (Code of Alabama, sec. 265.)

Now we do not contend that the votes cast at this election should not
be counted because the ballots were not counted in the careful manner
provided by law, nor because the oath provided by law was not taken
by the inspectors, but what we believe is that as the inspectors were too
ignorant to know what oath should be taken, or either too ignorant or
too careless of their duties to ascertain the result of the election as pro-
vided by law, and as it is shown that their counting of the votes was of
such a character as to make it unreliable, the House cannot say from
the evidence what the vote was.

In the examination of Pettiway he states, on page 116, the ballots
were kept by one of the inspectors, as were one of the poll-lists, and he
repeats this statement (E., p. 120). Why did not the contestant have
a siibposna duces tecuin served upon the inspector who had these ballots
in his custody ! Does not this testimony show clearly the necessity of
adhering to the rule of evidence before laid down ?

SMITH VS. SHELLEY. 51

Iii Lexington precinct contestant claims 320 votes, and gives none to
either Mr. Stevens or Mr. Shelley. Now, the imperfect return from this-
voting place which was sent to the board of canvassers, though un-
signed, shows by its contents (a tally of the vote) 11 votes for Mr.
Shelley and 140 for contestant. Evidently the inspectors had com-
menced to keep a tally of the vote cast, and had given 11 votes to
Mr. Shelley and only 140 to Mr. Smith, yet on the witness stand they
say that contestant received 320 votes and contestee none. Only two
witnesses are examined, and these are July Adams and Harris Mosely.
Adams was present and assisted in the counting of the vote. He says
that the ballots were never read when they were counted (E., pp. 127,
128). They were all considered as Eepublican ballots and as votes
for contestant, and so counted without ever being read. His testimony
as to this is as explicit and positive as testimony can be made. There
is no evidence to contradict or discredit Adams' testimony.

Witness Mosely was a deputy marshal who did not see the votes
counted and does not pretend to know what the vote was. (R., pp.
129-131.)

These ballots have never been counted so as to ascertain the actual
result of the election; but if the contestant had put them and the poll-
list in evidence they could have been counted and the result of the elec-
tion correctly ascertained. Until those ballots are read and counted, or
until the voters themselves are examined and testify, no man caii say
what was the result of the election at that precinct.

In Cbillatchi precinct the inspectors numbered the ballots, in viola-
tion of the law, and in direct violation of their oaths compared the
numbered ballots with the name opposite the corresponding number on
the poll-list. (R., p. 143.) No account of the vote cast was kept by the
inspectors as the ballots were being counted. In the language of the
witness "no one did any writing while the votes were being counted."
(R., p. 143.)

The provisions of law in relation to the counting of the ballots were
entirely disregarded. The tickets were not read when they were counted,
or at any time, as far as it appears by the eviden.ce. They were counted
by William Perry, a- clerk, and not an inspector of the election ; and
Lindsey Irby swears that Perry opened the ballots to keep from count-
ing two, but " that he never did read them all over any time." (R.,
p. 136.)

Tony Abels (R., p. 142) contradicts the testimony of Irby to some ex-
tent by stating, first, that only the name Smith and Garfield were called
out, and then that only the names of the electors were called. But Lind-
sey Irby states that the ballots cast at the election were delivered into
the custody of Harris Mosely, one of the inspectors. Why were not
these ballots produced in evidence ?

In River precinct Dave Barnes, one of the inspectors (R., p. 93), was
made the custodian of the ballots, and though he was examined as a
witness for contestant he was not even asked to produce the ballots.
Contestant's witnesses give him 314 votes at this precinct and contestee
only one; they all swear to this precise number, yet the tally-sheet
returned by them to the board of canvassers, which is in evidence, shows
only 305 votes for contestant.

In Pine Flat precinct the ballots were delivered to the custody of Sam.
Boner (R., p. 81), one of the inspectors. They were not counted by the
inspectors, but by the two clerks and one inspector (R., p. 82). This is
the testimony of Square Grumbers, who swears that he took the ballots
out of the box as they were being counted, while Shadric Tarber, United

52 DIGEST OF ELECTION CASES.

States supervisor, is equally positive that Gabe Hayden performed this
duty.

In Mitchell's precinct we have only secondary evidence as to what the
vote was, but when asked why the inspectors did not sign the return we
have as an excuse that they " forgot it." Their return, however, though
unsigned, gives contestant only 355 votes, while all three of the wit-
nesses, Hatcher, Thomas, and Moore, state that he received 360.

"No attempt is made to put in evidence the ballots which were cast at
4he election. Contestant does not even examine Henry Yasser, who
took down the names of the voters as they voted, and delivered their
tickets to them. His testimony would have been valuable, because he
was not one of the officers of election who forgot one of the important
duties of such office and made a return of 355 tallies thereon, when the
correct number, as they swear, was 360. We merely comment upon the
character of the testimony in relation to these precincts in order to show
that in the absence of the ballots it is unsatisfactory and unreliable in
-the highest degree.

LOWNDES COUNTY, WHITEHALL PEECINCT.

Contestant proves by his own witness, J. V. McDuffie, who as judge
of the probate court was a member of the board of canvassers for this
county, that when the box was opened in the presence of the board it
was found to contain 45 ballots for James Q. Smith for member of Con-
gress, and between 200 and 300 ballots for William J. Stevens for Uep-
resentative in Congress. As there was no statement of the result of the
election by the inspectors found in the box, the board of canvassers
were unable to count the vote. Now, McDuffie says :

It's my opiuion from examination aiid inquiries I have made that there was a fraud
At Whitehall beat, and that it was done by the box being opened from the bottom and
everything in it except 45 tickets with Smith's name upon them taken out, and these
Stevens tickets put in.

McDuffie was the warmest friend of Mr. Smith, and was the officer
before whom all of his testimony was taken. He does not inform us what
was the extent of his examination or the nature of the inquiries he
made. Now, contestant having proved what were the character of the
ballots found in the ballot-box by his own witness, it is then attempted
to set aside the force of this testimony by accepting the mere opinion
of this witness that the box was tampered \\ith. But there is positive
evidence that the box, when opened by the board of canvassers, was,
with its contents, in the same condition as when delivered by the in-
spectors to the returning officer of the precinct, and by him delivered
to the returning officer (the sheriff) of the county.

The returning officer of the precinct was Phillip White, the Repub-
lican United States supervisor, and he swears that he delivered the box
intact to the sheriff of the county (E., p. 176), and Mr. Graves, the
sheriff, swears that the box, with its contents, was delivered by him to
the board of canvassers in the same condition in which it was received.

It is not pretended that the ballots were tampered with before they
were delivered to the returning officer of the precinct; nor could it be,
because, White, Republican supervisor, and Willis Brady (R., p. 199),
the Republican inspector, testified to the contrary ; nor can it be pre-
tended that the official statement of the result of the election was put
in the box and fraudulently extracted, because White, the Republican
supervisor and returniug officer, testifies that nothing was in the box
" but the clerk's list and the tallies." The box and the ballots are not

SMITH VS SHELLEY. 53

put in evidence, so that the House is unable to say, from examination,
whether the bottom of the box had been removed, or whether anything
in the appearance of the ballots indicated that they were not those act-
ually cast. The statements of the witnesses, supporters of contestant,
that the vote was different from what the ballots themselves show, is
setting up the mere oral declarations of these witnesses as to what the
count was, or the count itself against the ballots, it not having been
shown that they were not the actual ballots cast at the election. The
officers of the election, White and Brady, who testify that the vote as
counted does not conform to the ballots as found in the box, were also
the officers who negligently or corruptly neglected or failed to make the
board of canvassers a lawful return of the vote. Under these circum-
stances it appears to us that the only satisfactory evidence as to what
the vote was at this precinct must be the testimony of the voters them-
selves, and they have not been examined.

PINTLALA PRECINCT.

The officers of election at this precinct consisted of three Republican
inspectors, two Republican clerks, one Republican United States super-
visor, William G. Gaskin, and Samuel M. Duncan, United States super-
visor on the part of the Democrats. Xow, upon the testimony of Gas-
kin alone, it is alleged that one E. P. Holcoinbe came into the room where
the election was being held before the polls had closed and substituted
the fraudulent for the genuine box, carrying the genuine box off' with
him. If this were true, some of the other five Republican officers of the
election would certainly have had knowledge of it, and could have been
examined by contestant to support the evidence of Gaskiu, and the ne-
cessity for corroborating his testimony must have appeared, when in re-
ply to a question as to whether or not he had been expelled from the
legislature of Alabama for bribery (R., p. 207), he says :

I decline to answer any farther questions on that subject, because I do not think it
is right.

Holcombe had died before the testimony was taken, and the only po-
litical friend of contestee present, Mr. Mason, is examined by contestee
to rebut the testimony of Gaskin. Mr. Mason says (R., p. 555) that
complaint having been made that the boxes were changed, he " scru-
tinized the said box carefully, but could perceive no difference in it."
He also informs us that the inspectors one at a time went to dinner,
leaving the box in charge of the other two, and Mr. Gaskin admits that
he was not present when the boxes were changed. The inspectors counted
the ballots in the box and did not reach the opinion that the box had
been changed until they found that, although there were 355 names on
the poll-list, there were only 354 ballots in the box. In their return (R.,
p. 550) they state this as their reason for not believing the box contain-
ing the ballots to be the correct box, but they do not say in their return
that they saw the box changed or that they noticed such a difference in
the box as to satisfy them that it was changed. There is a mystery
about the entire matter.

As the polls were not closed when the alleged change was made, how
could a box have been prepared containing within one of the correct
vote, and how could one man walk into a polling place and quietly
carry off the ballot-box without opposition or objection on the part of
the officers present, when six of those officers were opposed to the
change! The ballots in the alleged false box were never counted. Bub
admitting that the box was fraudulently changed as alleged, the ques

54 DIGEST OF ELECTION CASES.

tion arises, what was the actual vote, and contestant fails to show this.
To prove the vote he examines two witnesses, the Gaskin before men-
tioned and Samuel M. Duncan. Mr. Duncan, who was not an officer of
the election, gives his opinion as to the vote, and bases it, to use his
own language ( R., p. 202), "on the number of persons voting the Repub-
lican ticket who were there to vote and the number who were there to
vote the Democratic ticket."

But to show how uncertain his knowledge is, after stating the num-
ber of Republican votes to be about 225, he immediately changes his
opinion and thinks that it might have been 325. G-asktns says that he
kept an account of the vote part of the day (before half past three), but
that the only means that he had of .knowing how many votes were cast
was by seeing the ballots as they were handed in. But the law requires
that the ballots shall be folded when cast, and that they shall nor be
received when not folded, and Mr. Mason swears that the ballots were,
folded when voted (R., p. 555), thus sustaining the presumption of law
to that effect.

We are left in doubt as to whether any vote from this precinct was
included by the board of canvassers when estimating the vote of the
county, as there is no testimony on that subject.

HOPEWELL PRECINCT.

The election at this precinct was conducted by only two inspectors'
and as the law requires that three inspectors should hold the election, it
was void (Howard vs. Cooper, 1 Bartlett, 334). There were two Demo-
cratic inspectors appointed to act, but the testimony shows (R., p. 551)
that one of them could not serve because of sickness in his family, and
that the other was prevented from serving by his duties as a practicing
physician.

Nothing was returned from this precinct but a poll-list and a lot of
loose tickets, the most of which appeared to be for Mr. Stevens, although
they were not counted. Mr. Jones, the returning officer of the precinct,
states that he delivered the box to the returning officer of the county
in the same condition in which he received it (R., p. 546), and that the
box when delivered to him was fastened with tacks, but not sealed. He
also swears that most of the colored people of that precinct were for Mr.
Stevens (R., p. 546), and in this he is corroborated by Mr. Sullivan (R.,
p. 551). The two inspectors say that Mr. Smith received 298 votes and
Mr. Shelley 24, Stevens none ; while Mr. McDuffie admits (R., p. 16) that
the actual Republican vote of that precinct was 200, and the Demo-
cratic 100.

Now, if this election were not void, we have only the testimony of two
inspectors, members of the same party, who performed their duties wirh
the highest degree of carelessness, to use no harsher word, as to what
the vote was ; their statements being in opposition to the evidence of
the ballot themselves and to the wishes of the voters. It is clear that
in a case of this kind, where the ballots are attacked and where there is
no return, the only satisfactory evidence of the vote must be that of the
voters.

BENTON PRECINCT.

The evidence is that there were two elections held in this precinct,
from one of which a return was made, and presumably the vote was
counted by the board of canvassers in estimating the result of the elec-
tion in the county, but we are not informed what this vote was.

SMITH VS. SHELLEY. 55

Now, contestant claims that this election was void, and that the elec-
tion at the other polling place was a lawful one. We believe from the
evidence that the latter election was technically the correct one and
that the former was not. But how is it possible, to correct the vote of
the county by adding thereto the vote cast at the true election (which
has not been included in the vote of the county) and taking therefrom
the vote cast at the void election, there being no evidence as to what
the latter *^as. As there was doubt as to which was the true voting-
place, it might be true that any number of the voters voted at both, as
they would have a lawful right to do, because only one of the elections
could be legal. It must be clear to any one that it is impossible to cor-
rect the vote of the county until it is shown by evidence what was the
vote at the void election in this precinct.

NEWBERN PRECINCT, HALE COUNTY.

Merritt House, the Republican supervisor, alleges that as the ballot-
box was being taken from one room to another after the polls were
closed, and before the votes were counted, it was carried away and a
false one substituted. This removal from one room to another was
made with the consent of all of the officers of the election. Robert
Lee swears that the ballot-box was not changed (R., p. 487). He was a
Republican inspector. In his testimony, Lee is corroborated by the
testimony of M. S. Harron, a clerk of the election, and T. L. Huggins,
an inspector. The testimony of House stands alone, unsupported by
other evidence. But if the boxes were changed, and the ballots, if
counted, not the actual ballots cast, we would be met with a great diffi-
culty in attempting to correct the vote and this is, that it is not shown
by the testimony what was the character or contents of the return by
the inspectors of the election from this precinct, and what, if any, vote
from this precinct was counted by the board of canvassers of the county
in estimating the votes of the county. How, then, could the true vote
be added to the vote of the county without first subtracting the false
vote '

It is nowhere shown what ballots were in the alleged false ballot-box ;
the testimony does not show whether or not they were counted and a
return of them made. If this obstacle could be overcome, the next
inquiry would be as to the actual vote polled. Merritt House attempts
to give an estimate (R., p. 301), but admits (R., p. 305) that he kept a
' tally " of only eight votes, and that he could not swear with any de-
gree of certainty to the number of votes cast for contestant.

E. J. Lavender, who was not an officer of Hie election says that he
stood outside the voting place and took down the names of 398 electors
who voted for contestant; a list of those names was put in evidence,
and although the number 398 appears upon it as a total, only 332 names
are found in the list. Sampson Hill also gives the number of votes for
contestant at 398, and puts in evidence a list of the persons voting,
showing 133 names and 395 tallies, though the witness states upon the
paper that the total was 399.

It is plain that the testimony of these witnesses as to the vote cast for
contestant was not based upon the account kept by them, but upon an
agreement reached by them subsequent to the election. Testimony like
tins cannot be substituted for the testimony of the voters themselves as
to how they voted. It will be seen how impossible it is from this testi-
mony to arrive at a satisfactory conclusion as to what the vote was.

5b DIGEST OF ELECTION CASES.

PERKY -COUNTY.

The allegations that the inspectors of election appointed by the county
board of supervisors in this county were not fairly representative of
both parties, the Republican as well as Democratic, is not supported
by the proof.

Mr. Billiugsly shows (R., p. 254) that, as chairman of the executive
committee of the Republican party of this county, he made the request
to be allowed to name a Republican inspector for each voting place, and
that no attention was paid to his request ; but there is no testimony,
positive in its character, to show that the Republicans were not properly
represented among the board of inspectors at each voting place. The
returns from five precincts of this county are attacked by contestant j
the precincts are Hamburg, Scott's, Walthall, Marion Box 1, and Cun-
ningham. They are attacked upon the ground that the returns made
were not in accordance with the vote as cast, a fraudulently incorrect re-
turn being made, as alleged, from each of these precincts by the inspect-
ors. At the outset we are met by great difficulties applicable to all
these precincts, owing to the defect in contestant's proof, and these are:

First. There is no evidence as to the character or contents of the re-
turns made from any of these precincts by the several boards of inspect-
ors and the board of supervisors of the county, or whether any return
at all was made.

Second. There is no evidence that the vote as returned from any of
these precincts was counted by the board of canvassers in estimating
the vote of the county. How, then, can the v.ote of the county be cor-
rected, by the addition of the alleged true vote until it be known whether
or not the false votes should 'be deducted from them ? As In law re-
quired there was on file in the office of judge of probate of the count} 7
theorigiual returns from each of these precincts, and from all of the other
precincts of the county from which returns were made. There was also-
on file an official statement prepared, as required by law, by the county
board of canvassers, and signed by them, showing the vote for each
candidate from each precinct as found and estimated by them. Neither
these returns nor this statement was put in evidence; nor is it proved
what was the vote of the other precincts of the county about which
there is no contest. It appears to us, therefore, impossible in the present
'condition of the proof to correct the vote. The presumption of law that
an officer performs his duty cannot be applied to eases of this character
to supply the defect in the proof. The law would presume, in the ab-
sence of all proof, that the inspectors at the several precincts made a cor-
rect return in accordance with the vote as actually cast, but the law will
not presume that they made a fraudulent return. But unless the re-
turns, it made, were fraudulent, contestant has nothing to complain of.
All the presumptions of law are in favor of the correctness and good faith
of the inspectors. Fraud is never presumed, it must be proved ; and the
Bouse will not presume, in the absence of positive proof, that the in-
spectors made a fraudulent return. This principle of law is so clear and
so universally lecognized as to require no further argument or reference
to authorities. We shall examine the testimony in relation to the vari-
ous precincts to see if, regardless of the defects in the proof already
pointed out, fraud on the part of the officers of the election, or the true
vote as cast is satisfactorily shown by the pr of.

HAMBURG PRECINCT.

B. F. Watson was the Republican United States supervisor; the in-

SMITH VS. SHELLEY. 57

specters were composed of two Democrats and one Republican (R., p.
105). Watson swears that after the polls were closed the ballot-box
in which the ballots voted had been cast was fraudulently changed for
a false box containing fraudulent ballots. He says that only one of the
inspectors, Juan Harris (R., p. 107), was engaged in changing the box,
and that though he was present and saw the change made he said noth-
ing about it, and called no one's attention to it at the time. He made
no protest or objection whatever (R., p. 110). The two ballot-boxes, the
true and the false one, were in the same room, and yet, according to his
own statement, he permitted the ballots in the false box to be counted
as the genuine ballots, and did not utter a word of objection. Witness,
as United States supervisor, made a report giving contestant 338 votes,
contestee 40, and Mr. Stevens 5, making 383, although he himself states
there were only 378 votes cast (R., p. 110). Now when asked from what
source he obtained the data from which to make his report, he says : ' I
knew the sentiments of the people, and just how they would vote, and
I taken a record of the committee's list, and got my information from,
them." He kept no list or record himself (R., p. 110). The other witnesses
as to the actual vote are Green Johnson, a deputy marshal, and J. T.
Harris. They were not officers of the election, and were not in the room
where the election was being conducted. This room was in the second
story of the building, and to cast his ballot the voter had to enter the
building on the first floor and then ascend a flight of stairs (R., p. 256).
There was a "committee" of Republicans, five in number, to keep an
account of the Republican vote as cast, and they selected one Silas Ben-
jamin to take down the names of the Republican voters (R., p. 144).
But not one of these committeeinen, nor Benjamin, is examined as a
witness, nor is the list of names kept by Benjamin put in evidence.
The witness Johnson states that Benjamin told him that there were 340
names in his book, and he has no other knowledge of its contents (R.,
]>. 140). J. T. Harris kept a tally of 323 voters whose tickets he saw in
their hands, but he states that he does not know whether these tickets
were actually cast, as he did not see one of them voted (R , p. 256). The
voters themselves are not examined.

SCOTT'S PRECINCT.

The officers of election at this precinct were Charles W. Turpin, Johi>
C. Lee, and Lazarus A very, inspectors; E. N. Driver and E. Evans,
clerks; and Walter Lowery, United States supervisor; Lee and Lowery
were Republicans. Lowery swears that Turpin gave him $35 as a bribe
to permit him (Turpin) to exchange Smith tickets for Shelley tickets, and
that he took the money, put it in his pocket, and has retained it ever
since (R., p. 159), and permitted the fraud to be committed. (It., p. 157.)
His testimony is corroborated by no one ; its truth is positively denied
by Lazarus Avery, the Republican inspector and witness for contestant*
who received the tickets from the voters throughout the day. It is also*
positively and unequivocally denied by Turpin, Lee, Driver, and Evans,
the other officers of the election. The character of the fraud, as de-
scribed by Lowery, was that Turpin and Lee exchanged Smith tickets
by putting them in their pockets and substituting others, and erasing
Smith's name from the ticket and substituting Stevens's therefor. This,
of course, could not have been done without the knowledge of Avery,
who was standing by the ballot-box during the day. Turpin also denies,
most positively giving a bribe to Lowery, and the other officers of elec-
tion swear that they are entirely ignorant of such an occurrence. Mr*

58 DIGEST OF ELECTION CASES.

Robert. Ferryman (R., p. 485) states that five or six days after the elec-
tion Lowery said to him that he saw nothing done at the election but
what was fair, and that it was not true that any money had been paid
to him (Lowery).

Ferryman swears that he knows Lowery's character for truth in the
neighborhood where he lives, and would not believe him on oath. Low-
-ery states that he kept an account of the vote as it was cast. He says,
" i. would get one letter of the ticket as it passed in and that would be
<Q or M" (R., p. 160), but shortly after he states in regard to the man-
ner in which the ballots were cast, u some would be folded, some with
two ends doubled together, and some would be wide open." (R., p. 161.)

Yet he pretends in this way to have kept a tally of all the Republican
votes cast (R., p. 161). The law requires the votes to be folded, and
William Henry, a witness for contestant, says that he saw the ballots
ibr contestant issued to the voters, each of whom was given two, and
then says the voters were shown by the persons distributing these tick-
ets how to fold them as they voted (R., p.. 297). Henderson kept an
account of the voters for contestant, as the tickets were distributed to
them, but he did not read these tickets. He says, "I knew they were
.Smith tickets, because the men who had them only had Smith tickets."
But he read none of these tickets (R., p. 297), and the persons who
actually did distribute the tickets to the voters are not examined.
With the exception of Lowery he is the only witness for contestant as
to the vote actually cast.

WALTHALL PRECINCT.

There is nothing in the testimony as to which political party the in-
spectors at this precinct belonged ; there is no evidence as to what the
vote actually was as ascertained by the board of inspectors. The Re-
publican United States supervisor did not act; his name was Enoch
Jones. The witness, William Q. Smith, states: I saw him (Jones) make
application to be admitted as United States supervisor, and he was re-
fused by Mr. Pollard, one of the inspectors (R., p. 169). Mr. Smith did
not live in this precinct, but lived in Autauga County, in another Coii-
.gressional district. He was unable to say where Jones, the supervisor,
resided. Now we submit that if this supervisor Was duly commissioned
and authorized to act as such officer, he need not have called upon Mr.
Pollard, one of the inspectors, for permission to act, and he ought not
to have refrained from acting merely on the refusal of Mr. Pollard to
grant him permission. He does not appear to have called upon the
other inspectors for permission, or for a recognition of this right. He
had as high a right, if not a higher one, to be at the voting place as
Mr. Pollard or any officer of the election. It is not pretended that he
attempted to exercise his right notwithstanding the refusal of Mr. Pol-
lard, or made any attempt to enter the room where the ballot-box \v;is
placed. It is not pretended that any violence to his person was used
-or threatened to be used against him ; the supervisor failed to perform
his duty without sufficient reason. It does not appear to us that the
presumption which exists in the case of all officers acting within the
scope of their authority, that their acts are correct and lawful, is im-
peached or overcome by the failure of this supervisor, under the circum-
stances, to perform his duty.

MARION PRECINCT, BOX NO. 1.

The evidence as to this precinct is entirely inadequate to establish

SMITH VS. SHELLEY. 59

fraud or even misconduct on the part of the officers. S B. Price, United
States supervisor, states that after the vote for Smith and Stevens was
counted, he saw one of the inspectors, with some tickets in his hand, go
toward the water-bucket and remain long enough to take a drink, but
he could not say that anything wrony was attempted or intended (K.,
]>. L'()7). At another time he saw one of the inspectors hold tickets in
his hund and he stopped taking tally to watch him, but he saw- him do
nothing w r i ong with these tickets, nor does he know what kind of tickets
they were. When the polls were closed and the time for counting the
ballots arrived, it was found that the ballot box was unlocked, but it is
not pretended that any one knew this, and upon opening the box to
count the ballots it was found that the cover was tight and was lifted
with some difficulty. (See the testimony of Price, the Republican super-
visor, K., p. 205, and Ed. Spaulding, the Republican inspector, R., p.
271'.) The box was not removed from the table during the day, and
Spauldiug and Price were at hand near to the box throughout the day.
Price, as supervisor, made a report conforming to the return 03- the in-
spectors (R., p. 402), and it was not until the 18th of November that he
made a different report, for the reason, as he says:

The former report was not according with all the voters to whom I talked aliout it,
said about it, and I have talked to a great many.

James F. Bailey kept a tally of 655 colored men who voted ( It., p.
259), and he estimates that these votes were equally divided between
Mr. Smith and Mr. Stevens (R., p. 260).

M. B. Boyd kt-pt an account of the votes polld, but admits (R., p.
278) that he cannot state from his own knowledge, with any degree of
accuracy, the number of votes that any candidate received. Of course
the mere estimates and opinions of persons who were not officers of elec-
tion, when they are confessedly uncertain and incompetent, must go for
naught. Especially so in cases where no fraudulent acts on the part of
the officers of election are proved.

CUNNINGHAM PRECINCT.

The testimony does not show to which political party the inspectors
belonged. Win. Jenkins did not act as United States supervisor in this
precinct although he had been duly appointed and commissioned. The
efforts of Jenkins to act are described by the witness Xix Stevens, as
follows (R., p. 284) :

He walked up presenting his commission, informing the inspectors that he had been
appointed supervisor of that body and was prepared to discharge the duties of that
office. Mr. Cook (returning officer) met him and said: "Old man, yon can't act here.
You are not a resident of this beat."

It does not appear that Jenkins made any further effort to act. Jenkins
did not reside in the beat, but lived in Scott's beat (R., p. 300). This
being the case, he was not a qualified voter of the precinct and there-
fore not qualified to serve as United States supervisor (see Sec. 28, U.
S. Rev. Stat.). Without discussing the abstract legal question as to
whether Jenkins, having been duly commissioned, should have been per-
mitted to act though disqualified by law, we submit that neither the
circumstances of the refusal as above described nor the failure of Jenkins
upon this refusal to act are sufficient to create a presumption of fraud
against the officers of the election or to overturn the presumption that
their acts were in accordance with the law.

Beverly Smith, Nix Stevens, and Henry Wells distributed contest-

60 DIGEST OF ELECTION CASES.

ant's tickets to the voters, according to the testimony of Wells, but
Nix Stevens gives the names of three persons in addition who distrib-
uted these tickets (R., p. 282). Stevens gave out all the tickets he
had in his hand (R., p. 275). Gave to some two and others one ticket,,
but he does not attempt to say how many voters took tickets from him,,
nor can he swear positively that the persons who took tickets from him
voted the tickets that he gave them (R., p. 281). Nix Stevens counted
300 and odd tickets which were distributed to the voters, but when
asked if he could swear of his own knowledge that over 300 votes were
cast for contestant (R., p. 284), replies:

I cannot swear out of my own knowledge, but the sentiment said so and lam bound
to believe so.

Beverly Smith states that he saw 200 persons vote for contestant be-
cause he saw their ballots before they voted, and watched them when
they voted ; but when asked if he could swear of his own knowledge
that these 200 persons cast the ballots that they showed him, replies :
" That is my belief about it " (R., p. 299). In the absence of any proof
of fraud on the part of the officers of election, certainly these calcula-
tions and opinions of persons not appointed to act as officers of election,,
mere lookers-on without official responsibility, cannot be sufficient to
set aside the returns.

POPE'S PRECINCT.

One of the inspectors at this precinct was taken sick and ceased to
act. The others made no return of the vote, but simply put the tickets
in the ballot-box, sealed up the box and delivered, it to the returning:
officer. These ballots are not put in evidence, nor are the voters exam-
ined to prove what the vote was. Contestant attempts to prove the
vote by other evidences. Henry Robinson (R., p. 16) says :

I issued about 40 tickets there that day, and I did not notice what the voters did
with them.

Lindsey McDaniel says (R., p. 317) :

I had all the tickets, and then I gave out about 600 with Smith's name on them,,
and all I saw were going up to the polls with them. * * * I gave each voter two>
tickets, and I gave it to them so that if anything should occur that they would nave
a duplicate 'to show who they voted for, and I saw about 300 voters who had Smith
tickets go to the polls, and whether they put them in or not I cannot say.

This witness could not read, and only knew that he had Smith tickets
because a man told him so (R., p. 318). As the ballots were required by
law, as a part of the return made, to be kept on tile in the office of the
judge of probate, contestant could easily have put them in evidence,,
proving by the inspectors that they were the ballots cast, and thus es-
tablishing the vote; or, failing this, he could have proved it by the
testimony of the voters. But as it is, the evidence as to this precinct
makes it impossible to arrive at the correct vote.

PRAIRIE BLUFF, WILCOX COUNTY.

The return was made from this precinct to the board of canvassers of
the county, and, as shown by the official statement in evidence (R., p.
516), the vote of this precinct was not counted. The ballots are put in
evidence, and there are 335 for contestant and 24 for contestee, if the
ballots referred tp on pages 222 and 223 of the record refer to this pre-
cinct. These were probably the ballots that were cast at the election,
and therefore should be counted, 335 for contestant and 24 for contestee.

SMITH VS. SHELLEY. 61

CONCLUSION.

We have sufficiently indicated our views as to the evidence, as we have
examined the testimony applicable to the various counties and the pre-
cincts therein. As the result we do not see how, without violating the
well established rules of evidence, without accepting mere assumptions,
speculations, and opinions for positive proof, without presuming that
votes were given to contestant and contestee by the county boards in
estimating the vote of the county, upon no evidence whatever that such
votes were given, or in many cases upon no evidence whatever as to the
vote which was given, it is possible to reach the conclusion that the con-
testant has showu that he was elected or that the contestee was not
elected.

We will add that there are some precincts to which we have not re-
ferred, because it will not be pretended that the vote of those precincts
is changed or established by the proof. These are Bethel, Rose Bud,
and Canton, in Wilcox County; Brooks precinct, in Lowndes County;
Catnden, Suowhill, and Pineapple precincts, in Wilcox County ; and
Selma, Burnville, and Valley Creek precincts, in the county of Dallas.

We therefore recommend the adoption of the following resolutions :

1. Resolved, That James Q. Smith was not elected as a Representative
to the Forty-seventh Congress of the United States from the fourth Con-
gressional district of Alabama, and was not entitled to occupy a seat in
this House as such.

2. Resolved, That Charles M. Shelley was duly elected as a Repre-
sentative from the fourth Congressional district of Alabama, and is en-
titled to retain his seat as such.

WILLIAM M. LOWE vs. JOSEPH WHEELER.

EIGHTH CONGRESSIONAL DISTRICT OF ALABAMA.

In this case'a large number of votes cast for contestant were rejected and not counted
because the ballots bore the numerals 1st, 2d, 3d, &c., designating the electoral
districts of the State, and the votes of various precincts were challenged on the
ground of fraud.

Contestee claimed that many persons voted for contestant who had not the legal qual-
ifications : that they were minors or convicts or non-residents, or were not regis-
tered.

Held, That the ballot containing the numerals do not infringe upon either the letter
or spirit of the statute, which provides that "the ballot must be a plain piece of
white paper, without any figures, marks, rulings, or embellishments thereon."

Where returns are successfully impeached and the true vote is proven by the voters
themselves being called to testify, such returns must be corrected as proven.

The charge of voting for contestant by minors, convicts, and non-residents held to be
not proven.

The constitution of Alabama nor the statutes of that State do not make registration
an absolute condition or prerequisite of voting.

The House adopted the majority report.

DIGEST OF ELECTION CASES.

MAY 17, 1882. Mr. HAZELTON, from the Committee on Elections,
submitted the following

REPORT:

The Committee on Elections, to whom were referred the papers relating to
the contested-election case in the eighth Congressional district of Ala-
bama, having had the same under consideration, submit the following re-
port :

This contest comes from the eighth district of Alabama, composed of
eight counties in the northern part of the State. The secretary of
state certifies as follows, as appears on page 470 of the record:

Returns of the Congressional election in the eighth district, November 2, 1880.

Counties.

Joseph
Wheeler.

Wm. L.
Lowe.

1 392

928

2 825

3 501

l' 569

1 704

1 517

1 993

1 709

1 322

1 948

1 680

Franklin .. ..

611

400

Colbert

1 237

Total

12 808

12 765

STATE OF ALABAMA,

Office Secretary of State :

I, W. W. Screws, secretary of state, do hereby certify that the above is a correct
copy of the official returns of an election held in the eighth Congressional district of
Alabama on the second day of November, A. D., 1880, as returned to this office by the
supervisors of election for the various counties composing said district, at which elec-
tion Joseph Wheeler and William M. Lowe received the votes set opposite their respect-
ive names.

Witness my hand, at office, in the city of Montgomerv, this 13th day of January, A.
D. 1881.

W. W. SCREWS,

Secretary of State.

Upon this return the contestee, Mr. Wheeler, was declared elected by
forty-three majority, and received the certificate of election.

It is conceded that a much greater number of votes were received
for Lowe than appears upon said certificate of the secretary of state,
and it is practically admitted that if all the votes cast and received
for Lowe had been counted and returned by the inspectors of the elec-
tion the result would have shown the election of Mr. Lowe by a large
majority.

As the case is presented to the committee, two leading and controlling
questions arise for consideration and determination : 1st, as to the
proper and legal form of the ballot ; and, 2d, as to registration. The
evidence discloses that in order to declare Mr. Wheeler elected by
forty-three majority the inspectors of the election at fourteen out of
nearly two hundred precincts in said district had to reject and did re-
ject in the count 601 ballots cast for the contestant.

The number of ballots so rejected is assumed in the arguments of
contestee's counsel at about 515.

These ballots were rejected by said inspectors because they had on

LOWE VS. WHEELER.

them the numerals 1st, 2d, 3d, &c., designating the electoral districts of
the said State. The rejected ballots were in the following form and
words :

FOR ELECTORS FOR PRESIDENT AND VICE-
PRESIDENT :

STATE AT LARGE.
W. L. BRAGG.
E. A. O'NEAL.

DISTRICT ELECTORS.

1st District D. P. BESTOR.

2d District JOHN A. PAGGETT.

3d District J. F. WADDELL.

4th District JOHN ENOCHS.

5th District THOS. W. SADDLER.

6th District J. G. HARRIS.

7th District F. W. BOWDON.

8th District H. C. JONES.

FOR CONGRESS EIGHTH DISTRICT.
WILLIAM M. LOWE.

FOR ELECTORS FOR PRESIDENT AND VICE-
PRESIDENT :

STATE AT LARGE.
JAMES M. PICKENS.
OLIVER S. BEERS.

DISTRICT ELECTORS.

1st District C. C. McCALL.

2d District J. B. TOWNSEND.

3d District A. B. GRIFFIN.

4th District HILLIARD M. JUDGE.

5th District THEODORE NUNN.

6th District J. B. SHIELDS.

7th District H. R. McCOY.

8th District JAMES H. COWAN.

FOR CONGRESS EIGHTH DISTRICT.
WILLIAM M. LOWE.

And the statutes to be construed in the consideration of this question
are as follows :

AN ACT to amend section 276 of the code of Alabama.

SECTION 1. Be it enacted by tlie general assembly of Alabama, That section 276 of the
code of Alabama be amended to read as follows: 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, without being opened or examined, be deposited in the
proper ballot-box.

Approved February 8, 1879.

AN ACT to amend section 274 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 274 of the
code of Alabama be amend.ed so as to read as follows: The ballot must be a plain
piece of white paper, without any figures, marks, rulings, characters, or embellish-
ments thereon, not less than two nor more than two and one-half inches wide, and
not less than five nor more than seven inches long, on which must be written or printed.

DIGEST OF ELECTION CASES.

or partly written and partly printed, only the names of the persons for whom the
elector intends to vote, and must designate th office for which each person so named
is intended- by him to be chosen; and any ballot otherwise than described is illegal,
and must be rejected.

Approved February 12, 1879.

(Acts Ala., 1878-9, page 72-'3.)

AN ACT to amend section 286 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 285 of the
code of Alabama be amended so as to read as follows, viz:

286 (264). Manner of counting out votes. 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 written or printed thereon,
and the office for which such persons are voted for ; they must separately keep a calcu-
lation 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 belief that the same was done with a fraudulent intent, they must be rejected, or
if any ballot containing the names 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.

(Acts Ala., 1878-'9, p. 73.)

The contestee in this case insists that the expressions "1st district,"
"2d district," which appear on said ballot, do of themselves render
the ballots illegal tinder said section 274, as amended.

This statute provides that the " ballot must be a plain piece of white
paper, without any figures, marks, rulings, or embellishments thereon."
We are unable to conceive how this form of ballot infringes upon either
the letter or spirit of the statute. If we are to adopt the narrow and
strained construction of this statute presented by the coutestee, then
we must assume that the legislature of Alabama intended to impair and
destroy the integrity of the legal voting power of the State instead of
securing it in its proper rights, because it would be impossible to pre-
pare a ballot that would stand the test of such a construction, and that
could not be rejected at the caprice of a party inspector of elections for
a- reason as valid and strong as that presented in this case. Such a con-
struction means simply disfranchisement of the citizen, and makes the
law itself a fraud upon the freeman's boasted right of franchise. We
quote with favor the following extract from the contestant's brief on
this point :

Does the use of the numerals or figures 1st, 2d, &c., make the ballot illegal? The
intention of the statute is to be looked for before construing it. The word " figures"
must be construed in connection with the word "marks, rulings, characters, embel-
lishments." If a construction so literal as that suggested by this objection be given
this statute, no legal ballot can be written or printed, because the literal meaning of
the word " character," for instance, would force one to print or write his ballot with-
out making a letter, for a letter is literally a "character." A rejection of those bal-
lots because they contained the letter "o," the "figure" of a circle, used in spelling
contestant's name, would not have been further from a correct construction of the
statute than the one which holds that the numerals 1st, 2d, &c., are "figures" with-
in its meaning. The meaning is clear. The word " figures " refers to "embellishments,
characters," designs, pictures, or prints that would deprive the ballot of its secrecy.
The ballot must not contain a flag, an eagle, or other device. It must be on plain
white paper.

It has been a long-standing custom throughout the South, as well as
the North, and especially in Alabama, to designate and form electoral
tickets in just this way, and no one ever claimed before that it impaired
the secrecy of the ballot or was subject to the feeble objection now made
against it. (Record, page 1229.)

The act to amend 276 of the code of Alabama declares that

One of the inspectors must receive the ballot, folded, from the elector, and the

LOWE VS. WHEELER. 65

same passed To each of the other inspectors, and the ballot must then, without being
opened or examined, be deposited in the proper ballot-box.

The act to amend 286 of the code of Alabama provides that

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 read-
ing aloud the names 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 belief that the same was done
with a fraudulent intent they must be rejected; or if any ballot containing the names
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.

We conclude, from reading and construing these sections together,
that the rejected ballots were legal, and should have been counted.

Mr. Webster, in the Ehode Island case, stated admirably the two
governing principles of the American system of suffrage:

The first is that the right of suffrage shall be guarded, protected, and secured
against force and against fraud.

The second is that its exercise shall be prescribed by previous law; its qualifica-
tions shall be prescribed by previous law; the time and place of its exercise shall be
prescribed by previous law ; the manner of its exercise, under whose supervision
(always sworn officers of the law), is to be prescribed. And then again the results
are to be certified to the central power by some certain rule, by some known public
officers, in some clear and definite form, to the end that two things may be done:

First, that every man entitled to vote may vote; second, -that his vote may be sent
forward and counted, and so he may exercise his part of sovereignty in common with
his fellow-citizens.

In a spirit as broad as this the bill of rights of the constitution of
Alabama (sec. 34) declares that " the right of suffrage shall be protected
by laics regulating elections," and prohibiting, under adequate penalties,
all undue influences, &c. ; and the constitution (art. 8, sec. 2) declares
that "all elections by the people shall be by ballot."

The right of suffrage thus guaranteed by the constitution of Alabama
cannot be imperiled or destroyed by any legislative enactment whose
construction makes this great constitutional right of the freeman to
hang upon the caprice or whim of the partisan inspector of elections,
which, if exercised, as in this case, must inevitably and for all time
sacrifice all the substantial rights of citizen franchise to doubt, shuf-
fling, and uncertainty.

The style in which they were printed does not violate the secrecy of
the ballot. They were printed on plain white, paper, without anything
whatever upon them to betray their character or contents.

It is contended by the contestant that this peculiar construction of
the law of Alabama had its origin in the following circular, issued
and placed in friendly hands by the chairman of the Democratic com-
mittee, just before and on the day of election. The notice is at least
significant :

DKAR SIR: As soon as the polls are closed, inform the inspectors of the election that
the Lowe tickets with Hancock electors on them are illegal. They contain the figures
1st, 2d, &c., designatiugthe district. Theseare marks or figures which are prohibited
by the election laws (see acts 1878-79, page 72), and all such tickets should be rejected.
when the votes are counted, after the polls are closed.

[Indorsed on back in writing : J
To be shown only to very discreet friends.

But we beg leave for a moment to refer to the bearing of the laws of
the United States upon this question. Congress has the power (article
1, section 4) " to make or alter" State regulations as to " the manner"
H. Mis. 35 5

66 DIGEST OF ELECTION CASES.

of holding Congressional elections. In section 27, Revised Statutes,
Congress has enacted that " all votes for Representatives in Congress
must be by printed or written ballots." This provision as to the ballot
is exclusive and supreme so far as it goes. The States cannot alter it.
See also sections 2012, 2017, 2018 of the Revised Statutes. These sec-
tions relate to the appointment of supervisors and to the definition of
their powers and duties in national elections.

The evidence shows that the following votes for contestant were ille-
gally rejected in the count on the ground before stated:

REJECTED VOTES.

Votes. Record page.

BigCreek 7 346-8-9

Chickasaw 8 404

Courtland 65 496-7

Danville 42 382

Decatur 3 376

Elkmont 56 339-341-3

Falkville 97 370-3-5

Flint 76 33 to 35

Florence 4 908

Green Hill 22 1388

Huntsville 61 37-41-2-6-7-8

Kash's 4 2 309

Madison 33 130-137-9

Meridianville (No. 1) 2 294-5

Owen's Cross-Roads 31 140-3-8

PoplarRidge 41 150-3

Russell ville... , 51 394-6-7

Rejected votes 601

The evidence shows that these votes were cast for Mr. Lowe. The
Flint box, with 76 votes for contestant and 59 votes for contestee, is
put down with the rejected votes for convenience, although the whole
box was rejected on account of some alleged irregularity on the part of
the election officers. It is familiar law that innocent parties must not
be prejudiced by such irregularities, nor deprived of their rights by
matters occurring after the election, and over which they had no control.
Flint box, therefore, must be counted. (See record, page 365, 367, 369.
See Platt vs. Goode, Digest Election Cases 1871-'6, page 650 5 McCrary
on Elections, page 145.)

MERIDIANVILLE, Box No. 2.

The inspector's returns from this box give contestant 47 votes, 18 less
than the number received by the rest of the opposition ticket with con-
testant's name upon it. Every State officer at this box, in direct violation
of the State law, was "a pronounced Democrat and Wheeler man."
The friends of contestant determined, under the circumstances, to keep
a tally-list of contestant's voters, as a check upon the inspectors.

John Wesley, who kept said tally -list, swears as follows :

Question. Was there or not an agreement between you and other colored men to en-
deavor to ascertain and keep the number of the Garfield and Arthur and Lowe vote ?

(Contestee objects to the leading character of this question.)

Answer. There was.

Q. What was your part in carrying out such agreement ? A. I don't understand
you. What did I do is your meaning?

Q. Yes, sir. I mean what did you do in endeavoring to ascertain the number of Gar-
field and Lowe votes? A. I was placed around near the window, in front of the win-

LOWE VS. WHEELER. 67

do\v, and remained there all day and taken the number of tickets as the men marched
to the pulls, and put them in as they marched two by two to the polls and voted. I
stood \vht' re I could see along the line and see that the men carried the ballot, as the
resolution was passed, without putting their hands in their pockets.

Q. Were these men whom yon were to see and did see so carry their ballots the
same men whom Wade Blankenship and others had distributed the ballots to ? A.
They are.

Q. Did you put down in any way the number of men that you saw come to the polls
having received ballots from Wade Blankenship and others and deposited them! A.
I did.

Q. How did you put down the number ; in what way ? A. Marked them on a piece
of paper and made a tally of it ; live in a tally.

Q. Have you now in your possession that paper ? A. I have.

Q. Please produce it. (Witness produces paper.)

Q. File that paper with your deposition, having the stenographer mark it Exhibit
No. 1, to identify it.

EXHIBIT No. 1.
VVVVVVVVWVVII.

A. I have done so.

Q. How many voters does this paper show yon kept account off A. Sixty-six; it is
sixty-seven this paper shows I kept account of.

Q. Howmany of them were colored men ? A. Sixty-six.

Q. W T ho was the other one ? A. A white man ; not personally acquainted with him ;
they say his name was Mr. Wm. Jones. : , 3,

Q. Why did you put his name on the list ? A. As he voted for Mr. Lowe. '

Q. And made it known, did he not, that he was so voting ? A. He did.

Q. Were you present at the meeting of the colored men held after they learned that
only forty-seven votes were conn ted at box number two for Colonel Lowe? A. I was.

Q. Was or not a list of men who claimed that they had voted for Colonel Lowe made
out at that meeting ? A. There was.

Q. Were or not the men whose names appeared on that list the same men of whom
you kept the count by tallies ? A. Yes, sir. (Record, pages 243, 244.)

On cross-examination he said :

Q. It is true, then, is it not, that all yon know about how people voted at Meridian-
ville precinct is this : First, that you, while standing off some twenty or thirty feet,
checked off 6? marks as you saw 67 men go up and put in their ballots, and that after-
wards, at a club meeting, 66 men gave in their names and said as they gave in their
names that they voted for Lowe? A. I saw the tickets distributed, and as they
marched to the polls and handed them in I marked them down. (Record, page 247.)

The reason why these colored men passed the resolution that they
would hold their ballots openly when they walked up to vote is ex-
plained by this witness :

Q. I wish you would give the full reasons that induced the colored men to pass the
resolution and to act upon it by holding their tickets from their bodies, without put-
ting their hands in their pockets, as they approached the polls and deposited them.
A. It had been said throughout our neighborhood that the colored people would tell
each other that they would vote one ticket and sell themselves to the Democrats, put
their bands in their pockets and change tickets before getting to the polls. They said
it was understood among them that they intended for everybody to see that this
shouldn't be, by keeping their hands from their body ; they shouldn't have the privi-
lege of making that report. They would keep their hands from their body and it
could be seen by everybody.

Q. After what election was it that Democrats said that colored people sold out in
that way ? A. It has been said all the time, but more so since the August election.
(Record', pages 247, 248.)

Another colored man, named Blankenship, swears that he distributed
tickets to 6G colored men ; that he saw them openly vote the ticket for
Garfield and Lowe which he gave them. (Record, pages 232, 233.)
These are the same men that John Wesley swears he saw vote for the
contestant. (Record, page 244.)

Felix Forbes, the United States supervisor, testified as follows:

68 DIGEST OF ELECTION CASES.

Q. Did you not at the beginning of the count occupy a position toward the in-
spector who was calling out the ballots so that you could have seen the names upon
the ballots ? A. Yes, sir.

Q. Did he or not change his position so that you couldn't see the names ? A. Yes,
sir; he changed from the position he first taken. He was inclined this way; he
changed it.

Q. Did he or not make such change in his position that from where you were sitting
you couldn't see or read any of the ballots? A. No, sir; I couldn't see them.

Q. The position that he occupied when he first commenced calling the ballots, could
you have not, by endeavoring to do so, by leaning forward, have seen them ? A. Yes,
sir; I could have seen them.

Q. How did it happen at that box that Wm. M. Lowe got 18 votes less for Congress
than the Garfield Presidential electors received ? A. I couldn't say.

Q. Give your best judgment and opinion as to how it occurred. A. Well, my honest
opinion is that he got the votes, and they were not called for him by the inspectors.

Q. Were there not living in that precinct eighteen voters who voted at box number
2 who were known as supporters of Garfield, and yet desired to support Joseph Wheeler
for Congress ?

(Contestee objects.)

A. I don't believe there was.

Q. Who now has possession or who took possession after the close of the election of
the ballots, box, and poll-lists.at that box? A. Truitt. (Record, page .)

In addition to the above, the voters themselves were called to testify,
and 55 did swear that they voted for contestant. The result of this
evidence of outright and open fraud in the count must be to reject this
box. The returns being successfully impeached, contestant very prop-
erly relies upon the direct testimony of the voters themselves, which
clearly entitles him to 55 votes at this box.

LANIER'S PRECINCT.

At this precinct, as at Meridian ville, all the State officers, sheriffs,
and clerks were ardent partisans of the contestee; the contestant bad
no friends among them. The poll-list shows that 188 persons voted at
this box. Yet, the inspectors, in defiance of law and mathematics,
counted for contestee 142 votes and for contestant 57 votes, making
199 votes, or 11 more ballots in the box than names on the poll-list.
The blundering fraud is apparent on the face of the returns.

The inspectors certify that on counting the ballots after the election
there were 11 more ballots in the box than were names on the poll-list,
and that they deducted 2 Republican ballots and 9 Democratic ballots,
because they were found folded together. But the certificate of the
probate judge, also a partisan of the contestee, shows the vote cast and
counted at this box as follows :

"Ballots counted for Wm. M. Lowe, 56; ballots counted for Joseph
Wheeler, 142."

If this be the truth, there must have been not only 199 ballots, an
excess of 11, but there must have been 210 ballots, an excess of 22
ballots. The fact, however, remains that only 188 names are upon the
poll-list, and that, therefore, only that number of .voters could have le-
gally voted and only that number of ballots could have been honestly
counted. The inspectors, nevertheless, after deducting 11 votes in excess
of the poll, return 57 for the contestant and 142 for the contestee. Who
can give this return a fair and honest explanation ?

But the show of fraud on the face of the returns is made apparent,
if not conclusive, by the evidence that the box was stuffed in the inter-
est of the contestee, and the integrity of the election at that poll sub-
stantially destroyed.

JOHN HERTZLER testified :

Question. What is your occupation and where do you live? Auswer. Well, I live

LOWE VS. WHEELER. 69

in this county ten miles south of this place Lauier's precinct, in Madison County,
Alabama.

Q. How long have you lived there? A. Eleven years, sir.

(,. Where did you come from when you moved there ? A. I came from Clarke
County, Ohio Springfield, Ohio.

Q. Is it not true that you have purchased and now own forty to fifty thousand dol-
lars' worth of real estate ? A. I don't know what it might be worth, but I own sixteen
hundred acres of land there.

< t >. Were you one of the inspectors of the election at Lanier's precinct, November 2,
1 -~< i ? A. Well, I was appointed to be there as, I believe, overseer supervisor of elec-
tion.

Q. What time did you get to Lauier's, the polling place? A. I went there before
-ix o'clock in the morning.

',! At what time were the polk opened at that box? A. The polls were opened at
al.HMit half past eleven, or, probably, near twelve the voting commenced. It was
eleven before there was any voting done ; there was some dispute or some trouble as
to the registrar.

(}. Who were the inspectors who held the election at that box? A. The inspectors
were William F. Baldridge, William M. High, and Frank Horton.

<}. William F. Baldridge and William High are white men and Frank Horton is a
colored man ? A. Yes, sir.

Q. What are the politics of William F. Baldridge and William M. High and Frank
Horto^n ; were they oruot Wheeler men andDemocrats ? A. To the best of my knowl-
edge, they are: yes, sir.

Q. Who were the clerks of the election at Lanier's box? A. Burwell C. Lanier, jr.,
and James McDonnell.

i t > . What are the politics of these two clerks ? A. I believe they were Wheeler men.

(}. Who was the returning officer at Lanier's box? A. Burwell C. Lanier, sr., the
old gentleman.

Q. He was a Wheeler man and a Democrat, was he not ? A. Yes, sir ; to the best of
my knowledge.

Q. Did the registrar of that precinct attend the polls on jthe morning of the elec-
tion ? A. Xo. sir.

Q. Who was appointed in his stead? A. Archie McDonnell, sr.

Q. Is it not true that Archie McDonnell, sr., was a Democrat and Wheeler man ?
A. Yes. sir.

Q. Is it not true that Lanier was a new precinct or voting place ? A. Yes, sir.

Q. This is the first election held there, is it not ? A. Yes, sir.

Q. You say that the registrar of that precinct didn't attend that morning ; what is
his name ? A. His name was Blunt Matkins.

Q. Is it not true that he is known as a Democrat and Wheeler man ? A. Yes, sir.

Q. Did he coine during the day? A. He came about two two o'clock in the after-
noon. He was sent for.

(Record, page 174.)

* * # ' *

Q. How did you understand he was engaged during the morning of the election f
A. Well, I understood that as men came there (hands from their plantation) every
one asked, " Did you see anything of Blunt ; is he coming ?" And they answered in-
variably, " He has gone hunting."

(Contestee objects to eliciting hearsay from the witness, and to answering questions
which were at best merely a point of hearsay.)

Q. When the voting began did or not the inspector, William F. Baldridge, chal-
lenge any votes ? A. Yes, sir.

Q. How many did he challenge? A. Well, I judge he challenged about three out
of five.

Q. Was these men whom he challenged known as Lowe men or Wheeler men f
A. Well, that I couldn't just say, whether they were or not, but they were judged to
be Lowe men.

Q. You say you think he challenged about three out of five? A. Yes, sir; I am
satisfied he challenged that many up to the time that Matkins came.

Q. When he would challenge a voter what would be done ? A. He would simply
read them the oath that was there.

Q. Did Mr. Baldridge do the reading himself? A. Yes, sir.

Q. Did he read rapidly or very slowly ? A. He read very slowly, sir; very tedi-
ous.

Q. How long has Mr. William F. Baldridge been living in that precinct? A. He
has lived there eleven years just as long as I have.

(,>. Isn't it true that he is well acquainted with the people living in that precinct?
A. Yes, sir ; I think he is as well acquainted as any man there.

Q. Were these men that he was challenging strangers to him ? A. I think they
were al! well known to him. f

70 DIGEST OF ELECTION CASES.

Q. It is true, is it not, that Mr. Baldridge is a planter in that precinct, and well
acquainted with the people of that precinct ? A. Yes, sir ; those that he did not
challenge were such that, for instance, the Laniers, or Mr. James McDonnell, one of
the clerks, or myself, could recommend.

Q. Were you present at the time the ballots were received ? A. Yes, sir.

Q. Did or not any voter come up to the polls and hand to the inspector six or seven
ballots twisted or folded together ? A. No, sir ; I paid particular attention to that.

Q. If a voter had brought a roll of ballots as I have described and handed them to
the inspector, would you not have noticed it? A. Yes, sir.

Q. After the polls were closed did the inspectors b'egin to count the vote immedi-
ately ? A. No, sir.

Q. Did the inspectors remain at the house where the election was held, with the
ballot-box ? A. No, sir.

Q. What did they do and where did they go ? A. Mr. Baldridge went home, Mr.
High and Frank Horton staid there. I took charge of the box.

Q. Where was the election held ; in what house ? A. It was held in the outhouse
or rear end of the smith-shop.

Q. After the polls were closed was the ballot-box kept in that house ? A. No, sir.
, Q. Where was it carried? A. It was carried to Lanier's store, close by.

Q. Who carried it there ? A. William M. High.

Q. Did you and the other inspectors go to the store at this time ? A. Yes, sir.

Q. Did the inspectors all go into this store? A. No, sir.

Q. Who went into the store ? A. William M. High went into the store. m

Q. And carried the box in ? A. Yes, sir.

Q. Where, then, did Mr. Baldridge go ? A. He went home.

Q. Where did Horton go ? A. He staid there at the store.

Q. Where did you go ? A. I staid there at the store for a while.

Q You and Horton. then, staid there, and Baldridge went home ; where was High
at this time ? A. He came out of the store again and was with us for a while ; he had
gone into the store and deposited the box, and came back again.

Q. Did you or Mr. High go to supper ? A. Yes ; we went to supper after that.

Q. Who was left at the store with the ballot-box ? A. John Lanier.

Q. Is he the storekeeper? A. Yes, sir.

Q. He was not an officer of the election, was he ? A. He was, I believe ; I think
he was a marshal that day, appointed by the Government.

Q. Is it not true that this John F. Lanier was a pronounced Democrat and a Wheeler
man ? A. Well, I could not say as to that ; his politics were rather mixed ; but I
rather think he was then, at this last election, a Democrat.

Q. How long did you and Mr. High remain away from the store and at supper ?
A. I expect it was nearly two hours ; were away a long time.

Q. Did or not you and Mr. High go to the store after supper to get the ballot-box .'
A. Yes, air.

Q. Who went with you? A. Mr. Burwell Lanier, Mr. John Lanier, and Mr. Clint
Lauier.

Q. Who unlocked the store? A. John Lanier.

Q. Did you get the box ? A. Yes, sir.

Q. Where was it then carried? A. It was then carried by Mr. High to Mr. Bur-
well Lanier's house, in his parlor.

Q. And then in his parlor did you proceed to count the vote ? A. Yes, sir.

Q. Was William F. Baldridge then present ? A. Yes, sir.

Q Did he or not rejoin you at the store when you went for the ballot-box ? A.
He did.

Q. What kind of a box was that ballot-box? A. It was a little wooden box, a lit-
tle candy-box formerly, with a lid on top that could open and shut by sliding the top
in grooves.

Q. Did it or not have upon it any lock? A. No, sir; it didn't have any lock.

Q. Was there or not a hole cut in it for the purpose of putting in ballots? A. Yes,
sir.

Q. When the ballot-box was left at the store, was it or not in such a condition that
the top could have been pulled off? A. It could have been very easily pulled open ;
that is, the lid could.

Q. When you proceeded to count the ballots in Mr. Lauier's parlor, who was pres-
ent? A. The inspectors of the election and the clerks were present, aud there was
also present another colored man, Alexander Kelley, and myself.

Q. Was the box then opened in the presence of these men ? A. Yes, sir.

Q. And the inspectors proceed to count the vote ? A. Yes, sir.

Q. Were or not any ballots found in that box rolled or twisted together ? A. Yes,
sir; there were.

Q. What kind of ballots were they W T heeler ballots or Lowe ballots ? A. Wheeler
ballots.

LOWE VS. WHEELER. 71

Q. How many were rolled iu a bunch? A. Well, to my certain knowledge there
were two bunches, they then were that were. In one there were six ; in one there
were seven ; there were several that were two or three ; therer were several other
bunches that had two or three in them.

Q. These tickets so in bunches were all Wheeler tickets, were they not ? A. Yes,
sir ; two bunches were Wheeler tickets.

Q. You mean the two bunches, one* containing six ballots rolled together and the
other containing seven ballots rolled together f A. Were all Wheeler ballots ; yes,
sir.

Q. Who took the ballots out of the box and called them out to the clerks ? A. Mr.
Baldridge took out the greatest part of them, and Mr. High took out some of them.

Q. Were or not this bunch of six tickets and this bunch of seven tickets all counted
for Wheeler? A. They were all counted.

Q. After the ballots had been counted how did the number of ballots compare with
the number of names on the poll-list? A. There were eleven more ballots then there
were names.

Q. Who cut the hole in this ballot-box through which the ballots were put into
the box ? A. I did.

Q. How large was it ? A. Half an inch by an inch.

Q. Were all the ballots. which were in the box counted ? A. Yes, sir.

Q. And then it was ascertained, was it not, that the number of ballots counted ex-
ceeded by eleven the number of names on the poll- list? A. Yes, sir.

Q. Then what was done for the purpose of reducing the ballots so as to make it
correspond with the number of names on the poll-list? A. There were then nine of
tluxe ballots were then counted to the Republican side and two to the other.

Q. You mean that they deducted nine votes from the Democratic side and two
votes from the Republican side ? A. Yes, sir.

Q. And iu that way made the number of ballots correspond with the poll lists ? A.
Ye>. sir: that is how it was done.

Q. This process of making the number of ballots correspond with the poll list took
from General Wheeler and the Democratic ticket nine ballots, and took from the Re-
publican ticket and Colonel Lowe two ballots ? A. Yes, sir.

Q. Were not all of the inspectors present in the counting of the votes Wheeler
rum ? A. Yes, sir.

Q. What reason did they give for taking nine ballots from Wheeler and two from
Lowe for the purpose of equalizing them? A. They gave as a reason that Wheeler's
majority was so much the greater.

<,'. The vote had been counted at this time so as to ascertain that his majority was
greater? A. Yes, sir.

Q. They gave no reason except this? A. No, sir.

Q. Who proposed that the vote should be equalized in this way ? A. Well, I
couldn't positively say who proposed it. They asked me what I thought about it. I
told them that I thought they ought to be pretty lenient to Colonel Lowe, as those
two wraps that were iu there were Wheeler votes.

Q. And they made this concession without complaint ? A. Yes, sir.

C^. Are you or not well acquainted with the voters of Lanier's precinct? A.
Well, I am not very well acquainted with them. As a general thing they were
nearly all colored voters.

Q. It is true that you were well acquainted, is it not, with the white voters of that
precinct, and with many of the colored voters? A. Oh, yes, sir.

Q. From your knowledge of the voters of that precinct, and their politics, judging
from their expressions before the election, and from all means of knowledge that you
have, how many Wheeler men reside in and voted at that precinct ? A. Well, I did
think, and think so yet, that 40 would have been an extremely high estimate of-them.

Q. Did or not the inspectors, in your hearing, express surprise at the result after
the vote was counted? A. Yes, sir; all did.

Q. Did or not the electors who were best acquainted in the precinct express great
surprise at the result? A. Yes, sir.

({. How many white voters are at the precinct ? A. About twenty.

<{. I .shall now read to you the poll-list of Lanier's precinct kept by the clerks of
the election, on November 2, I860, and I'll ask you to keep a tally of the names whom
you may know to be those of whose meu as I call them, and then answer how many
white men are recorded upon his poll-list? A. Sixteen is what I recognize.

Q. Were the ballots as they were received put through this hole the top of the box
which you have described? A. Yes, sir.

Q. Referring to the bunches of tickets, 6 in one bunch and 7 in another, which you
have described as have been found in the box when it was open, could those bunches
-or rolls of bailors been passed through the hole in the box which you have described ?
A. 'No, sir; not in the form which they were found in the box.

72 DIGEST OF ELECTION CASES.

Q. According to your best judgment, how many Wheeler ballots were cast that
way ?

(Contestee objects to questions asking for the judgment of the witness as to how
many ballots were polled. )

A. Well, I judged then, and do still think, that there was that fifty would have-
been the whole amount.

Q. Isn't your best judgment that fifty would have been a liberal estimate of the
entire strength of General Wheeler at that box? A. Yes, sir.

Q. How do you account for the fact that when the ballots were counted out that only
fifty-six ballots for Colonel Lowe, and one hundred and fifty for General Wheeler ?
A. I cannot account for it only by my judgment.

Q. Give me your best judgment as to how it occurred. A. My judgment is'that
the ballot-box had been tampered with while we were in to supper.

Q. Were these clerks, BurwellC. Lauier, jr., aue JamesMcDounell, competent clerks?
A. Yes, sir; I think they were.

Q. Are they not young men of good education ? A. Yes, sir.

Q. And who write well ? A. Yes, sir.

(Record, page 176-77.)

On cross examination by the contestee he said :

Q. You state, I believe, that the ballot-box was carried to the store and you were
along with it? A. Yes, sir.

Q. It Avas then carried in the store, and before you left it was locked up in a room
in the store ? A. It was carried in the store, but where it was put in the store I didn't
know until I saw it taken out. It was carried in the store.

Q. When you saw it taken out, it was takeji out of a room that had a lock on it, was
it not ? A. Yes, sir.

Q. It was taken out by Mr. High, was it not ? A. Yes, sir ; I was by when he took
it out.

Q. Do you understand Mr. High to have the key to that room ? A. I expect that
he had the key from the fact that he went there by the door and unlocked it. Where
he got the key I don't know. I know he unlocked the door and had the key in his
hand, and just reached in his hand in the dark and took the box ; took it on hi* arm,
and we went up to the house. When I say " in the dark " 1 didn't mean that he was
in the dark, but that the room that he got the box out of was dark.

Q. This John F. Lanier that was in the store was a marshal at the election that
day, was he not ? A. Yes, sir.

Q. This man John F. Lanier, who was a United States marshal, was the only man
left in the store, was he not? A. Yes, sir. Well, he had some customers in the store;
the store belongs to him. He came to supper, too, but he didn't go with us; he came
up when we were nearly through supper.

Q. When you returned from supper it is true, is it not, that you went down with
Mr. John F. Lanier, and you saw him open the store door? Was anybody in there
when you opened it ? A. No, sir.

Q. Then you saw Mr. High go to the store-room and unlock that door, and take
out the ballot-box ? A. Yes, sir.

Q. And then you went with Mr. High to Burwell Laniei8 house ? A. Yes, sir.

Q. And there, in the presence of the inspectors, and in the presence of the clerks and
a colored man by the name of Kelly, in addition to the man Frank Horton, the in-
spector, the ballots were counted ? A. Yes, sir.

Q. Nothing could have been done with the ballot-box while going from the store
to the house ? A. No, sir ; there was nothing done there.

Q. It is" true, is it not, that the only place that any tampering could have been done
to the ballot-box was while it was locked up at the store? A. Yes, sir; that is the

only time.

###**

Q. What makes you think that the colored man Frank Horton, whom you thought
was a Republican up to Norember the 2d, is now a Democrat ? A. Up to November
2 I didn't know Frank Horton at all. It was on that day he was inspector, and why
I thought that day he was a Republican was why I knew the others were Democrats,
and I thought they put him there as a Republican inspector.

Q. What has made you think since that he was a Democrat ? A. Simply that I have
heard of him being accused of stuffing votes into that box. When I said it would be
very strange that Frank Horton, a Republican would stuif the box with Democratic
tickets, they said that he was a red-hot Democrat, and from that what I learned that
he was a Democrat.

Q. It is true, is it not, that Frank Horton cannot read or write? A. I do not think
he can. I did not see him take any part; he just sat there did not do anything.

LOWE VS. WHEELER. 73

William H. High, one of the inspectors at Earner's, and witness for
contestee, testified :

Q. When you put the ballot-box in the side room at the store and went to the house-
what persons did you leave about the store f A. I left John F. Lanier and several
negroes. John F. Lanier came on to supper shortly after we got there, and was there-
with us. (Record, page 557.)

Extract from deposition of Lowe Davis :

Q. What time did you get to Lauier's on the day of the election ? A. I believe it
was about eight or half past eight o'clock.

Q. Was the register of that precinct, Mr. Madkins, there? A. No, sir; he was not-
Q. Did you and others make any effort to get the polls opened? If so, state fully
what you did and what occurred in that respect, telling who assisted you, and what
assistance they rendered, and what obstructions, if any, were offered by the inspectors,
and how it was you succeeded in getting the polls opened. A. Upon arriving we
found out that Mr. Madkin, the register appointed, was not present; we waited for
him some time, and finally concluded that he WHS not coming at all; we then went
to where the inspectors intended to hold the election and requested them to appoint
another registrar. Mr. Baldridge, one of the inspectors, declined to do so, stating that
he had 110 authority. Mr. R. H. Lowe then procured a copy from Mr. Clint. Lanier of
the Code of Alabama, and read the law in regard to the appointment of a registrar from
that : he (Baldridge) still objected, though stating that he was a States-rights man, and
would not go by the United States statutes. The construction that he put upon the
code was not the one that he put upon it. He did not think that he had any au-
thority whatever to appoint another registrar or an assistant registrar. Mr. Burwell
C. Lanier. sr., then insisted to quite an extent; and, finally, after Mr. High and Hor-
ton, a colored inspector, had consented, Mr. Baldridge appointed Mr. McDonnell, an.
old gentleman about seventy years of age, as assistant registrar.

***##*

Q. When the polls were finally opened after the registrar was appointed, did the-
inspectors, or any one of them, make any objection to Mr. Archie McDonnell, sr., having.
assistance in writing out the certificates of registration ? A. Mr. Baldridge did.

Q. Did he or not claim that Mr. McDonnell should write them all out himself f A-
He did; we saw that it was impossible for Mr. McDonnell to do that; at least we
thought so, as there were no blanks furnished by the inspectors or in possession of th&
registrar.

(}. And did some of you insist upon helping Mr. McDonnell? A. Yes, sir; we did.

(Record, page 190.)

* * -V # * *

Q. Did you or not have an opportunity to observe the manner of the distribution of
the ballots to the colored voters and who was distributing them ? A. I did.

Q. Who did you see distributing ballots, and who did you see, if any one, preserving,
a tally or score of the voters who received the ballot and went forward to vote? A.
I frequently during the day went down to where the negroes were going in to vote.
I saw at that place Pope MeDaniel, I think his name is, keeping a tally-sheet of the-
meu who voted for Lowe, and also another colored man distributing tickets.

Q. Who was this colored man distributing tickets? A. I have forgotten his nainep
Wallace something.

Q. Have you or not seen this other man who was distributing tickets here to-day,.
being examined as a witness ? A. Yes, sir.

Q. Wasn't his name William Wallace ? A. I think it was, sir.

Q. Isn't he the man who is sometimes called Wallace Toney ? A. Yes, sir.

Q. You recognize the man as the man who was distributing the tickets? A. I do..

Q. Was there or not any action on the part of the inspectors as the voters went up
to deposit their ballots that indicated a disposition to delay their election ? A. There
was.

Q. State fully what occurred in that connection. A. The electors, after they had
received their certificates of registration, would go to the polling place, and every one*
that voted while I was present, and I saw a great many vote, were challenged, to the-
best of my knowledge.

Q. How near were you to the inspectors, looking on, at the tim you saw these men
challenged? A. About thirty yards ; probably not that far.

Q. What could you see? A. I could see the elector walk to the box or where they-
were polling the votes and offer his ticket, holding it in his hand ; some would remain;
there for two or three minutes with the inspectors. I heard them swear a good many
of them.

Q. There seemed to be some delay in the receiving of all the ballots that you saw
received? A. Yes. sir. t

74 DIGEST OF ELECTION CASES.

Q. Did you or not examine this tally-sheet or score that you say Pope McDaniel was
ieeping of the ballots that Wallace Toney was distributing ? A. I did, just before I
left, between three or four o'clock, I think.

Q. What was its condition as to the number of votes at the time you examined
it ? A. 120 or 130 tallies upon the sheet or a piece of pasteboard which he held in his
hand.

Q. What did you understand each one of these marks or tallies to represent ? A.
A vote for Wm. M.. Lowe.

Q. What time did you say you left Lanier's for Huntsville ? A. Between three and
four o'clock.

Q. Alfred MeColley could have come and voted after you left, could he not f A.
Yes, sir.

Q. Were there or not any white voters at Lanier's precinct known to be Lowe
men ? A. Mr. John Allen was an avowed Lowe man. Since the election I have seen
Mr. Bill Allen, who also told me that he voted for Lowe. I have heard that there
were others.

Q. Both the gentlemen you have named voted at that precinct ? A. Yes, sir ; at
Lanier's precinct.

Q. If there had been a majority of the colored men who were at Lanier's precinct
who were for General Wheeler on the day of the election, would you or not have been
able to discover the fact that there was a number of them for him during the day by
your mixing with them and your conversation with them ? A. I think I would, sir.

Q. What did you discover to be the sentiment of that body of colored voters? A.
They all desired to vote for Garfield, Arthur, and Lowe.

Q. Did you or not offer to distribute Lowe tickets yourself? A. I did, sir.

Q. What was said to you by the leading colored men in reference to your offer T A.
That they had procured Lowe tickets and were very desirous of keeping an accurate
-account of the votes polled for Lowe ; that the electors present had confidence in them
and they would prefer to distribute them, as they had procured the Republican ticket
with Lowe's name on it the tickets the electors desired to vote.

Q. Didn't you understand in that conversation that arrangements had been made
ibr William Wallace, sometimes called Wallace Toney, to distribute the ballots, and
for a tally to be kept by Pope McDauiel ? A. I did, sir.

Q. And you saw, did you not, that plan while it was being executed ? A. I did.
<Record, pages 191, 192.)

Richard H. Lowe, attorney-at-law, who accompanied Lowe Davis to
Lanier's, corroborates him fully. He describes specifically the efforts
made by Lowe's friends to get the polls opened, and the stubborn
resistance made by Wheeler's supporters. (Record, page 157.) Lowe's
friends expected a large majority at that box, and Wheeler's friends
thought that twenty votes would be as many as he would get there.

(Record, page 158.)

Pope McDauiel, the secretary of the Garfield Club, aided by William
Wallace, distributed the tickets and saw 155 ballots cast for Lowe.
< Record, pages 206-7.) His deposition is perfectly clear and consistent.
He kept a tally-list of the ballots so cast for Lowe. (Record, page 208.)
He is corroborated by Lowe Davis, as heretofore shown, and by William
Wallace, who says distinctly that 155 men received the Lowe tickets
and walked to the polling place and deposited them ; that each voter
carried the ballot so that witness could see it. (Record, page 216.)
This precaution was taken on account of the frauds at the Triana box
in August. (Record, page 216.)

Lauier's precinct had been since August taken from the Triana pre-
cinct. For an account of the August election at that box- see the
deposition of United States Marshal Joseph H. Sloss. (Record, pages
91-2-3.)

The depositions of Pope McDaniel and William Wallace should be
carefully read in connection with the investigation of Lanier's box.
The former is in record, page 206 to 215; the latter will be found on
pages 215 to 231.

Under these circumstances, the contestant properly and legally called
the voters themselves to testify as to how they had voted, one hundred
and twenty-eight of whom came forward and swore that they voted for

LOWE VS. WHEELER. 75

contestant. We thiuk that contestant should have the benefit of these
votes.

CAVE SPRING.

The witnesses for contestee admit that contestant is entitled to at
least ten more votes at this box than are given him by the inspector's
returns. (See record pages 904, 986, 467.)

Carver C. Hipp, on an examination as contestee's witness, testified :

Q. State whether you were present at the polls and voted at the Cave Spring's box
at the Presidential and Congressional Election on the 2d day of November, 1880? A.
I was present at the polls and voted at said election.

Q. State whether or not there was a large colored vote at the Caye Spring's box on
said day, and how many negroes voted the Democratic ticket ? A. There was a very
large colored vote at Cave Spring's box, and there were only three negroes who voted
the Democratic ticket at said box.

Q. For whom did the colored people vote for member of Congress on that day? A.
They voted solidly for Wm. M. Lowe, with the exception of three. (Record, 964.)

Edwin G. Hendrix, a witness for contestee, on his examination by
coutestee's attorney, with the poll-list of this box in his hands, gave the
names of sixty-four colored men who voted at this box November 2,
1880. (Record, 986.)

Mr. Hipp says that all of these colored men, except three, voted for
Lowe. Deducting three from sixty-four would leave sixty-one colored
men who voted for Lowe.

The inspectors, all of whom were Wheeler's supporters, by their re-
turns give Lowe only fifty-one votes. (Record, pages 467 and 986.)

Conceding that Lowe did not receive the votes of a single white man,
if these witnesses tell the truth, and we do not on this point question
their veracity, Lowe is entitled to ten more votes than the inspectors
return for him.

The deposition of Mr. Hipp is a fair sample of the evidence taken,
ex parte, for the contestee.

We find, therefore, that the following additional votes should be
counted for contestant :

Votes.

Lanier's (Record 126:M340) 128

Mcridianville, No. 5> (Record, 2 - U,241,to <i59) ." 55

Cave Spring (Record, 964 , 986, 46? ) 10

193

In addition to the 601 rejected votes.'

THE CASE OF CONTESTEE.

In reply to the foregoing statement of law and fact, the contestee
puts in a plea in the nature of confession and avoidance. He seeks to
show that many electors who voted for contestant did not have the
legal qualifications ; that they were minors, or convicts, or non-residents,
or were not registered ; and that " many hundreds of colored voters who
desired to * r ote for contestee were prevented from so doing by fear of
ostracism and apprehension of harm to their persons and property, and
even the destruction of their houses and property by fire."

In support of these allegations, the contestee has adduced a <>reat
mass of testimony, and presented briefs of extraordinary length, but
has in our opinion failed to sustain his case. This testimony is almost
altogether irrelevant, and much of it frivolous and generally secondary,
hearsay, and illegal. His proofs fail to sustain his allegations.

76 DIGEST OF ELECTION CASES.

In regard to minors and non-residents, the mere statement of a wit-
ness that an elector is one of this class seems to be the sole reliance of
the contestee. This is not sufficient. The witness must give facts to
justify his opinion.

In regard to convicts, the record of conviction is the best evidence r
and the only evidence to be accepted by the House, unless the loss or
destruction of that record is shown. In no instance has the contestee
produced the record or sought to account for its absence. We think it
is clear, also, that the coutestee has not made such a showing in regard
to the Courtland boxes as would authorize us in rejecting the same
under the authorities. " It must appear that the conduct of the election
officers has been such as to destroy the integrity of their returns," &c.
(McCrary, page 229), and we are not able to so find in this instance
upon the proofs.

REGISTRATION.

In regard to the registration of voters, the facts as shown by the tes-
timony do not sustain the claims made by the contestee. His testimony
does hot establish what he alleges it does. It is largely secondary
and of a hearsay character at the best. The fact is that in many in-
stances where he claims registration 'was not made, it was made, and
in few instances, if any, does he establish the identity of the voter
wherein he claims non-registration.

But whatever may be the facts upon this question of registration, we
are clearly of the opinion that the constitution of Alabama does not
make registration an absolute condition or prerequisite of voting, nor
do the statutes of the State.

The provisions of the Alabama constitution (art. 8, sec. 5) in regard
to registration is subject to two constructions : one making registra-
tion constitutionally essential to voting, and the other making regis-
tration essential only " when it is so provided " by law. The latter con-
struction is the one taken by contestant. It is the plainest and most
satisfactory construction that can be derived after giving full force to
all the words in the section. On the contrary, the construction given
by the contestee would eliminate the words " when it is so provided,"
and make {he section read as follows :

The general assembly may, when necessary, provide by law for the registration of
electors throughout the State or in any incorporated city or town thereof; and no one
shall vote at any election unless he shall have registered as required by law.

This reading of the section, with the words " when it is so provided"
eliminated, is the construction given by the contestee to the entire sec-
tion. But these words cannot be properly eliminated. They stand
out in the section to qualify and limit its meaning. They must be
given due consideration. They declare, in effect, not that registration
shall be a prerequisite for voting, but that ichen the general assembly
shall so provide, no person shall vote unless registered: meaning that
the legislature may make registration a prerequisite for voting, and
that when "It is so provided" no person shall vote without being thus
registered.

But the legislature has not seen fit to make such provision. Regis-
tration is not a prerequisite. It is not compulsory. It is not even put
down as one of the qualifications of an elector.

The registration law of Alabama contains the following provision :

$233. Registration on election day, and certificate. The assistant registrars shall be
present at the voting precinct, or ward, for which they are respectively appointed, on

LOWE VS. WHEELER. 77

the day of election, to register such electors as may have failed to register on any pre-
vious day in their precincts or wards, \vhichregistrationmust be done, in every respect,
.according to the form prescribed; and the assistant registrar shall furnish to each
elector who may register on the day of election a certificate of registration, which shall
lie in the following form :

I, , assistant registrar, do hereby certify that has this

day registered, before me as an elector.

(Signed) ,

Rtgtttrar.

Which certificate, signed by the registrar, shall be sufficient evidence that such elector
is registered ; and in case such assistant registrar, for any cause, is unable to attend, or
t here be a vacancy in the office of assistant registrar for such precinct or ward , the county
rri; istrar shall appoint some competent person as assistant registrar for that day ; and
if no appointment be so made by 10 o'clock of that day, then the inspectors of election
may appoint an assistant registrar, who may qualify and act as such for that day;
but this section shall not apply to incorporated towns or cities having a population
of more than five thousand inhabitants, except as is hereinafter provided by this
chapter.

Every voter that complied with this couditioii complied with the re-
quirements of the registry law of Alabama, and was as much entitled
to vote as though he had been registered days before the election. In the
face and eyes of a such provision, and in the absence of such proof as
would show that the officers who had registration in their charge had
deliberately violated their oaths, how are we to assume that this provis-
ion of law was not complied with in all cases of voters not embraced
in the general registry ? As to the presumption that the officers of the
law charged with a duty performed it, we cite McCrary on Elections, p.
231 ; to the election case of Finley vs. Bisbee, vol. 1, third session, Forty-
fifth Congress, House Reports.

AVe conclude, therefore, and we think rightfully, that the votes which
the contestee claims should be thrown out on account of alleged uon-
?gistration cannot be deducted from contestant's votes ; and, besides,
that they could not be taken pro rata from the whole vote cast, because
there, is no evidence which establishes definitely and indentically for
whom they voted. It was held in Curtin vs. Yocum, 2d vol. House Re-
ports of Forty-sixth Congress, where an elector votes without challenge,
his vote cannot afterwards be rejected because his name may not be
found on the registration list, but that it will be presumed the officers
of the election did their duty till the contrary is proven.

AVe therefore find and report that the contestant was fairly elected,
and that he was wrongfully counted out. We submit the following
table of results :

Lowe has 12,765 votes returned for him, 601 rejected ballots proved
for him, 193 additional ballots proved for him; total, 13,559; 103 votes
which must be deducted on account of Meridian ville and Lanier's polls
being rejected for fraud.

Lowe's actual vote 13, 456

Wheeler's vote as returned 12, 808

Deduct Meridianville 57

Deduct Lauier's 142

199

Wheeler's actual vote 12, 609

FltfAL.

Lowe's legal vote 13,456

Wheeler's legal vote 12, 609

f -

Lowe's majority 847

DIGEST OF ELECTION CASES.

We therefore recommend the adoption of the following resolutions:
Resolved, That Joseph Wheeler is not entitled to a seat in this House

as a Eepresentative in the Forty-seventh Congress from the eighth

Congressional district of Alabama.

Resolved, That Willaim M. Lowe is entitled to a seat in this House

as a Kepresentative in the Forty-seventh Congress from the eighth

Congressional district of Alabama.

VIEWS OF MB. RAN NET.

The records and briefs in this case are very voluminous. Much of the
former is composed of matter which is personal in its nature and wholly
immaterial. It has served to impose unnecessary labors upon the com-
mittee, and to prevent an earlier report to the House. The contest
rea|ly presents but two substantial issues.

The first issue related to about 525 ballots cast for contestant and
rejected by the inspectors, and which he now contends should be counted
for him. The second relates to votes cast by alleged non-registered
electors.

The official vote, as returned to the secretary of state, and upon which
the certificate was issued to contestee, was as follows :

Counties.

Joseph Wheeler.

Win. M. Lowe.

Colbert . . .

1,237

1 237

Franklin .

611

400

1,948

1 680

1 709

1 322

1,517

1,993

1 569

1 704

2,825

3,501

1,392

928

/Total

12 808

12, 765

Wheeler's majority, 43 (Record, page 470).

The official vote at each precinct in each county is shown by the
proper certificates found in the Record, pages 464-69.

It is proved clearly that 521 more ballots were cast for contestant
and rejected by the inspectors in fifteen precincts, and that 8 more
were cast for contestee and rejected in other precincts for the same
reason.

Had these been counted and returned contestant would have had a
majority of 470.

Those for contestant rejected were as follows, viz:

Ballots.
Precincts :

Huntsville 61

Madison 33

Oweus Cross Roads 31

Poplar Ridge ., 41

Falkville 97

Decatnr

Danville - 42

Elkmont 56

Big Creek 7

Russellville 51

Chickasaw.. 8

LOWE VS. WHEELER. 7i>

Conrtland 6&

Green Hill 25

Kash a

Mt-ridianville 2-

521

Those for contestee rejected were as follows, viz :

Ballots-
Precincts :

At Huntsville - 3-

At Madison 1

AtFalkville - 1

At Conrtland - 2-

At Mooresville 1

The rejected ballots read as follows :
FOR ELECTORS FOR PRESIDENT AND VICE- FOR ELECTORS FOR PRESIDENT AND VICE-
PRESIDENT :

STATE AT LARGE.

\V. L. BRAGG.
E. A. O'NEAL.

DISTRICT ELECTORS.

1st District D. P. BESTOR.
2d District JOHN A. PADGETT.
3d District J. F. WADDELL.
4th District JOHN ENOCHS.
5th District THOS. W. SADLER.
6th District J. G. HARRIS.
7th District F. W. BOWDON.
8th District H. C. JONES.

FOR CONGRESS EIGHTH DISTRICT.

WILLIAM M. LOWE.

PRESIDENT :
STATE AT LARGE.

JAMES M. PICKENS.
OLIVER S. BEERS.

DISTRICT ELECTORS.

1th District C. C. McCALL.

2d District J. B. TOWNSEND.

3d District A. B. GRIFFIN.

4th District HILLIARD M. JUDGE.

5th District THEODORE NUNN.

6th District J. B. SHIELDS.

7th District H. R. McCOY.

8th District JAMES H. COWAN.

FOR CONGRESS EIGHTH DISTRICT.

WILLIAM M. LOWE.

There was no objection as to size or form or kind of paper used.

The ballot on the left hand is what is called the Hancock aud Lowe
ballot, and the one on the right is the one called the Weaver and Lowe
ballot.

The ballots were rejected by the inspectors because they had on them
the numerals 1, 2, 3, &c., as would seem from the evidence, which is re-
ferred to for the convenience of those who may desire to read it.

At Huntsville the inspectors rejected sixty-one of these ballots
(deposition of Thomas W. White, Kecord, pages 37, 41 ; W. L. Good-
win, pages 42, 46 ; Nicholas Davis, 47, 48, 52, 54). At Madison they
rejected thirty-three (deposition of T. B. Hopkins, Record, page 130;
Lockhart Bibb, pages 137, 139). At Owen's Cross Roads they rejected
thirty-one (deposition of G. W. Maples, Record, page 140 ; W. L. Chris-
tian, 143; R. J. Wright, 148). At Poplar- Ridge they rejected forty-
one (deposition of E. C. Lamb, Record, page 150 ; Nathan Whittaker>
153). At Falkville they rejected ninety-seven (deposition of W. G.

SO DIGEST OF ELECTION CASES.

'Smith ; Eecord, page 370 ; Alfred Gaudy, 373, 375). They rejected at
Decatur two (deposition- of H. A. Skeggs, Eecord, page 376). They
rejected at Danville forty-two (deposition of J. Y. Fergerson, Eecord,
page 382). At Elkmont they rejected fifty-six (deposition W. A. Pink-
erton, Eecord, page 339, 341 ; A. G. Smith, 343). At Big Creek they
rejected seven (deposition of A. C. Witty, Eecord, page 346, 348 ; Will-
iam McCully, 349, 351). At Eussellville they rejected fiftv-one (deposi-
tion of John E. Seal, Eecord, 394, 396 ; D. N. Fike,397). At Chickasaw
they rejected eight (deposition of T. C. Walker, Eecord, page 404). At
Courtland they rejected sixty-five (deposition of W. J. Gibson, Eecord,
page 496 ; W. W. Simmons, 496).

As to Green Hill, see record, p. 1388; Kash, p. 309; Meridiauville,
pp. 294, 295.

The following-named documents inclosed together in the same envel-
ope were issued and sent to trusted friends by the Democratic execu-
tive committee; and the one not signed called the "yellow circular"
was given to the inspectors just at the close of the polls, and seems to
have been heeded and acted upon by them in most of the precincts named
above.

[Yellow circular.]

DEAR SIR: As soon as the polls are closed inform the inspectors of the election that
the Lowe tickets with Hancock electors on them are illegal. They contain the fig-
ures 1st, 2d, &c., designating the district. These are marks or figures which are pro-
hibited by the election laws ; see acts 1878-'79, page 72 ; and all such tickets should
be rejected when the votes are counted, after the polls are closed.

(Indorsed :) To be shown only to very discreet friends.

The kind of persons to whom it was intrusted for such use is indi-
cated by the paper with which it was inclosed, which is as follows, so
far as now material.

IMPORTANT.

You are specially designated as a person whose influence and ability can accomplish
much in the election.

*******

You are earnestly requested to be at the polls before the voting commences, and if
any inspectors or managers are absent see that a good Democrat takes his place-. This
is very important.

* * * * * *

By order of the Congressional Comt.

A. J. SYKES,

Chairman,

In some cases telegrams were sent by the same committee to the in-
spectors to the same effect of the yellow circular. (Eecord, p. 129.)

In other cases lawyers called in behalf of the contestee, expounded
the law, and induced the inspectors to reject the ballots after they had
been cast and received.

In one instance the ballots had already been counted, and they were
recounted and rejected by reason of the personal influence of a lawyer
who called for that purpose and advised this course.

It appears that in other counties and precincts where such influences
were not brought to bear, the inspectors counted ballots in the same
form, and which were subject to the same objection, to the number of
about 3,000, as alleged and proved by contestee. He contends now
that they were all illegal and ought not to be counted. Contestant

LOWE VS. WHEELER. 81

contends that the influences brought to bear to induce the rejection of
the ballots were illegal and fraudulent, and were exerted in the execu-
tion of a conspiracy; or, if not, that it was an unwarrantable interfer-
ence with the judgment and action of the inspectors. This may be so ;
but if the ballots were illegal and such as should have been rejected,
this fact is, perhaps, immaterial.

The fact that such ballots were received and counted when there was
no such interference is quite significant as indicative of how they were
regarded in other precincts.

WERE THE BALLOTS ILLEGAL?

It is claimed that the rejected ballots were in violation of the follow-
ing statute of Alabama, as cited and had printed by contestee at the
argument :

AN ACT to amend section 274 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 274 of the
code of Alabama be amended so as to read as follows:

The ballot must be a plain piece of white paper, without any figures, marks, rul-
ings, characters, or embellishments thereon, not less than two nor more than two and
one-half inches wide, and not less than five nor more than seven inches long, on which
must be written or printed, or partly written and partly printed, ONLY the NAMES of
the PERSONS for whom the elector intends to vote, AND must DESIGNATE the OFFICE for
which each person so named is intended by him to be chosen ; and any ballot other-
wise than described is illegal, and must be rejected. Approved February 12, 1879.

The legislature of Alabama had prescribed the mode of choosing
Presidential electors as follows :

On the day prescribed by this code there are to be elected by general ticket a number
of electors, for President and Vice-President of the United States, equal to the number
of Senators and Representatives in Congress to which this State is entitled at the time
of such election.

The following statutes of Alabama may be material :

AN ACT to amend section 276 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 276 of the
code of Alabama be amended to read as follows: One of the inspectors must receive
the ballot folded from the elector, and the same passed to eacji of the other inspectors,
and the ballot must then, without being opened or examined, be deposited in the
proper ballot-box.

Approved February 8, 1879.

AN ACT to amend section 286 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 486 of the
code 6f Alabama be amended so as to read as follows, viz:

286 (264). Manner of counting out votes. In counting out, the returning officer, orone
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 written or printed thereon,
and the office for which such persons are voted for; they must separately keep a calcu-
lation 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 in-
duce the belief that the same was done with a fraudulent intent, they must be re-
jected, or if any ballot contain the names 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.

(Acts Ala., 1878-'9, p. 73.)

The ground on which the inspectors rejected the ballots and were
H. Mis. 35 6

82 DIGEST OF ELECTION CASES.

advised to do so at the time was virtually abandoned at the argument,,
and the latter part of the statute was then relied upon as the only valid
ground for the rejection.

It is claimed that the ballots had on them more than the names of
the persons for whom the elector intended to vote and what was an im-
proper designation of the office for which each person named was in-
tended to be chosen, and operated as a distinguishing mark.

The committee are of the opinion that the ballots were wrongfully
rejected, and should be counted for contestant.

The paper used for the ballot was "without any figures, marks, rul-
ings, characters, or embellishments," and then there was attempted, in
the opinion of the committee, to be printed on it orfly the names of the
candidates and what was designed as only a designation of the office*
for which each person was intended to be chosen.

It is objected that the ballot does not correctly designate the office y
under the Alabama statute cited, as the electors were to be elected on
a general ticket; and it is contended that what was written in desig-
nating the candidates as electors, "State at large," "district electors/'
"1st district," "2d district," &c., did not designate any office known to
the law. There is nothing in the law to prevent the selection of the
electors, two at large and one of and from each Congressional district
in the State. Such was done ; in fact, each party did it. It is the
usual and customary way in all the States. The statutes require it in
many State, to be so done. It will hardly be claimed that the office of
electors was so designated as to make it uncertain what office was
meant, and that this vitiated the ballot so it could not be counted for
the electors on that account alone. If it did, it may not affect the can-
didate for Congress, as he was properly named and his office well des-
ignated.

It is sufficient that the 'words and figures were designed only to de-
scribe the candidates and to designate the offices, so as to express the
intention of the voter. It cannot be justly charged that the desig-
nation was intended or improperly calculated to operate as a distin-
guishing device or mark. It is at best, as claimed, only what may be
called an erroneous designation ; but, if so, it cannot be said that an
error of that kind was obnoxious to the statute.

The statute allows of all that may properly be used to express the
intention of the voter as to candidates and the offices ; and it mani-
festly did not undertake to prescribe the form or mode of, or kind of
type to be used in, naming the candidates or in designating the office.

If there had been two persons of the same name, it would hardly be
contended that they could not be distinguished by giving the residence
of the candidate. Or, if there had been a John Doe and a John Doe
2d, and the latter had been a candidate, his name could be so written.
Had the eighth district been printed 8th District on the ballot, there is
nothing in that which would have been a violation of the statute, al-
though the numeral 8 is a "figure."

The two parts of the statute are distinct, and the clause, " withotu
figures, marks, rulings, characters, or embellishments," has reference
manifestly to the outside and to the inside of the paper, independently
of the names of the candidates and the designation of the offices.
Otherwise it would be impossible to write or print a ballot, as it would
necessarily have " figures," " marks," and " characters " in it when writ-
ten or printed.

A literal interpretation must be avoided if necessary to give effect to
the general intent. The letter must give way to the spirit, and a reason-
able construction adopted.

LOWE VS. WHEELER. 83

The word " figure " may mean a statue, an image, or the form of any-
thing as well as a numeral. It had reference, perhaps, to the practice
of numbering each ballot as once was usual. So, a " mark " may be a
punctuation mark merely ; a " character " may mean a letter. It is
manifest from the collocation of words used what evil the statute was
intended to reach and prevent.

It is not necessary to go into any general discussion as to this class
of legislation or as to its validity. The case does not call for it.

To sustain the objection made to the ballot by contestee would shock
both the moral and the legal sense of every fair-minded man.

My conclusion is that the course pursued was a per version of the stat-
ute, and the objection was seized upon as a pretext and induced by out-
side manipulation.

In any event, it would seem that the part which relates to the candi-
date for Congress may be regarded as a separate ticket.

A New York statute once required State and county officers to be voted
for on separate ballots. At an election held under that statute a large
number of ballots were cast for " Cook, for State treasurer," which had
at the bottom of them "for county judge, Ezra Graves." These bal-
lots were alleged to be illegal and the election contested. The supreme
court in passing on the question said :

I have not been able, after the most deliberate consideration of the objection raised,
to perceive that there is anything in it. The ballot for every office on a ticket con-
taining the names of more than one officer must be regarded as a separate ballot.
(People rs. Cook, 14 Barbour, 259, 299.)

The case was carried to the court of appeals and there affirmed. The
court said : " The Speiman ballot, headed ' State,' had at the bottom ' for
county judge, Ezra Graves.' Whatever effect this had on the candidate
for county judge, it had none on the candidates on the State ticket."
(People vs. Cook, 8 K T., 4 Selden, 68, 85.)

We refer incidentally to certain claims relating to certain precincts in

MADISON COUNTY.

The evidence tends strongly to show fraud and ballot-box stuffing in
this precinct. It will warrant the rejection of the count and returns
made by the inspectors. Contestee is returned as having received 142
ballots, and contestant 57. The count and return are impeached for
fraud. Contestant has called 128 voters who swear that they voted for
him. The other evidence tends to prove 155. (Eecord, pp. 208, 216,
206, 231, 174, 196, 197, 557, 190, 191, 192, 158.)

Rejecting the returns for fraud, and counting 128 votes proved to have
been cast for contestant, according to the settled rule, will give him so
many more votes. But as this is not necessary in view of the case in
other respects, I do not go into the evidence more at length as to this
precinct.

As to Meridianville (box No. 2) and Cave Spring, the evidence tends
to show that contestant is entitled to 65 votes more than were counted
and returned for him for these precincts, and that at Flint precinct he
lost 17 ballots net by the vote not being properly counted and returned.
But it is not deemed necessary to state the evidence and proofs, as in
the view taken of the case by the committee this will not aflfect the re-
sult.

I do not sustain the claim of contestee as to Courtland precinct, al-
though there is some apparent irregularity in the action of the inspect-
ors, &c., in their conduct as to the box.

84 DIGEST OF ELECTION CASES.

CONTESTEE'S DEFENSE OR COUNTER-CLAIM.

The contestee attempts to meet the contention of contestant, if proved,
by the claim that illegal votes were cast for contestant by convicts,
minors, non-residents, and non-registered persons.

The claim as to minors and convicts appears by the following tables,
and the evidence is referred to in the same :

Minors who voted for Wm. M. Lowe, as claimed.

Page of record.

Number of
minors.

Names of witnesses who prove theco
voters were minors.

896

892

893

A D Lewis

814

R C Gamble.

894-899

William E Blair and W S. White.

956

S. S. Ives.

Shaler S. Ives.

861 .-.

Convicts who voted for Wm. M. Loive, as claimed.

Page of record.

Number of
convicts.

Names of witnesses who prove these
men were illegal voters.

894

W. E. Blair.

893

A . D. Lewis.

893-899 ...

A. D. Lewis and W. S. White.

900 900 ...

H. C. Hvde and J. M. Angel.

900

H. C. Hyde.

813-859

John N. Martin and Joseph A. Moora.

859

Joseph A. Moore.

859-880

Joseph A. Moore and C. B. Hayes.

859

Joseph A. Moore.

863

D. S. James.

872

S. T. Wert.

The claim as to non-residents hardly needs more particular reference.
It is not sustained by proof.

Not finding either of the claims to be maintained by competent and
credible evidence, I disallow them.

REGISTRATION.

Contestee does not set up a want of legal registration as vitiating the
election in any precinct, but alleges that persons not registered had no
right to vote, and that all votes cast by such were illegal, and must now
be rejected. His claim and references for proofs appear in the following
table, as presented by him in argument :

LOWE VS. WHEELER.

Connty.

Precinct.

Pages of record con-
taining registration
list.

ft
1

1
PM

Number of
votes cast.

Number of votes not
registered.

Number to be deducted
from Lowe's vote.

Number to be deducted
from "Wheeler's vote.

'Difference, or total loss
to Lowe.

Jackson

No 10 Belief onto

704-708
713-716
717-720
720-724
571-584
584-592
610-625
626-642
645-655
671-685
1218-1225
823-826
826-831
835-838
< 926-929 )
I 945-946 5
C 921-924 ?
I 939-944 5
428-436
414-415
416-419
420-427
1142-1154
1142-1154
1168-1171
1173-1177
1179-1182
1184-1186
1194-1196
1194-1196
1196-1198

691

694
695
696
656
658
659
665
668
685
1215
852
803
856

918

911

439
442
438
441
1192
1139
1172
1191
1182
1183
1188
1187
1189

49
24
35
166
50
169
123
175
87
84
123
90
74

100

252

124
44
80
13
134
111
132
62
24
36
31
25
164

130
123
32
132
222
111
3i4
360
223
134
336
213
619
101

289

406

134
63
95
165
192
419
170
82
43
111
61
112
228

56
81
26
86
61
32
116
169
113
48
275
107
215
22

103

280

59
14
52
38
131
191
29
32
21
16
20
42
261

42
58
15
68
35
22
72
126
64
29
206
68
189
13

173

31
8
28
35
77
151
16
18
13
12
13
34
151

14
23
11
18
26
10
44
43
49
19
69
39
26
9

107
28

3
54
40
13
14
8
4
7
6
110

28
35
4
50
9
12
28
83
15
"19
137
29
163
4

3
' 2
4
32
23
111
3
4
5
1
I
28
41

Madison

Limestone
Landerdale .

No 13 Barry's Store

No 15 Hunt's Store

No 17 Nashville

Cluttsville

Whitesburg

Slough Beat

Shoal Ford

Oakland

Colbert

Florence

Lawrence

South Florence

Courtland No. 2

Landersville

Hampton's ...

Red Bank

Hillsboro'

2, 625

5,630

2,698

1,846

852

994

Contestee's evidence does not show for whom many, if any, of the
persons claimed to be non-registered voted. He has not called the
persons themselves, but attempted, with little success, to prove it by
third parties. The instances proved by any competent or sufficient evi-
dence are very few and need not be stated, as they would not change
the result on any hypothesis presented or contemplated.

If found that enough illegal votes were cast to change the result, and
it not appearing for whom they voted, the question would be whether
the election should be declared void, or the vote distributed among the
candidates, under the rule laid down in McCrary, 298.

Contestee, for aught that appears, could have taken the evidence of
the witnesses themselves to establish their identity as the persons whose
names appear on the poll-lists, and to prove for whom they voted. This
he has not done, and no reason why not is shown.

Of course I do not hold as matter of law that such is the only mode
of proof allowable, while generally it is quite satisfactory, as the voter
usually best knows, and his evidence is direct.

The law of Alabama as to registration involved needs first to be stated,
so far as deemed material.

By article 8 of the constitution, which will be found at page 142 of
the Code of Alabama, the qualifications of the voter are prescribed as
being a residence of one year in the State, of three months in the
county, and thirty days in the precinct.

2. By section 5 of the same article it is provided in these words :

86 DIGEST OF EJECTION CASES.

The general assembly may, when necessary, provide by law for the registration of
electors throughout the State, or in any incorporated city or town thereof, and when
it is so provided no person shall vote at any election unless he shall have registered as
required by law.

Statutes passed in May, 1875, provided for registration in the whole
State (code of 1876).

227. Secretary of state superintends. The secretary of state shall superintend the
registration of electors in this State.

228. Registrars and assistant registrars. The secretary of state, on or before the
first Monday of May, 1875, or as soon thereafter as practicable, shall appoint one reg-
istrar in each county in this State, who shall appoint one assistant registrar for each
voting precinct or ward in the county for which such registrars are respectively ap-
pointed ; and such assistants shall, as soon as practicable after their several appoint-
ments, make a full registration list, as hereinafter provided, of all the electors in the
precincts or wards for which such assistants are appointed respectively ; and such
registrars and assistants, before entering on their duties, shall take the oath of office
as prescribed in section one, article fifteen, of tho constitution of the State of Ala-
bama, which oathmay be administered by any officer authorized by law to administer
oaths in this State, which must be filed in the office of the judge of probate of the
county ; and the assistant registrars are authorized to administer the registration
oath, and it shall not be lawful for any other officer or person to administer the same.

229. To return list of registered electors. It shall be the duty of each assistant reg-
istrar to make a due and correct return of the list of registered electors made by him.

230. Place and manner of registration. It shall be the duty of such assistant regis-
trars, within the several precincts or wards for which they are appointed respectively,
to make registration of the electors residing in such precincts or wards upon blank
forms provided for that purpose, and shall not register in any other way or on any
other form than that prescribed.

231. Oath of elector and how subscribed. Before registering electors, the assistant
registrars shall cause each elector who is qualified to vote under the constitution and
laws of the State of Alabama to take and subscribe an oath that he is a qualified
elector under the constitution and laws of the State of Alabama, and the name of
each elector must either be subscribed to such oath by the elector himself, or the same
may be subscribed by the assistant registrar; but when signed by the assistant, it
must be with the consent and direction of the elector so to do, which shall be evi-
denced by the attestation of the assistant registrar's name, written opposite to the
name of the elector, under the appropriate head, on the prescribed form ; and the oath
shall be in the printed and written form at the head of tbe registration list prescribed
l>y this chapter, and the names of the electors shall be subscribed to the same under
the appropriate head prescribed for the same in such list.

232. Number and date of registration, residence, employment, color of elector, and name
of employer. The assistant registrars shall write opposite to the name of each elector,
Tinder the appropriate head in such form, the number and date of registration, his
place of residence, whether white or colored, his employment, and if he is in the em-
ployment of another, the name of such employer; and if the elector resides in any
town or city, the street and number, or other mark or description by which his place
of residence may be identified.

233. Registration on election day, and certificate. The assistant registrars shall be
present at the voting precinct, or ward, for which they are respectively appointed, on
the day of election, to register such electors as may have failed to register on any
previous day in their precincts or wards, which registration must be done, in every
respect, according to the form prescribed ; and the assistant registrar shall furnish to
each elector who may register on the day of election a certificate of registration,
which shall be in the following form :

I, , assistant registrar, do hereby certify that has this

day registered before me as an elector.

(Signed) ,

Registrar.

Which certificate, signed by the registrar, shall be sufficient evidence that such
elector is registered ; and in case such assistant registrar, for any cause, is unable to
attend, or there be a vacancy in the office of assistant registrar for such precinct or
ward, the county registrar shall appoint some competent person as assistant registrar
for that day ; and if no appointment be so made by 10 o'clock of that day, then the
inspectors of election may appoint an assistant registrar, who may qualify and act as
such for that day ; but this section shall not apply to incorporated towns or citier
having a population of more than five thousand inhabitants, except as ishereinaftes
provided by this chapter.

LOWE VS. WHEELER. 87

$ ^34. Copy of registration list delivered to judge of probate, and how bound ; duplicate
-sent Secretary of State, and how bound: original registration books subject to inspection ;
additional registration ; and supplemental returns. Each assistant registrar, after having
registered all the electors in his respective precinct or ward, as near as may be, and not
more than three months after his appointment, shall make a true copy of same in the
registration book furnished for the purpose under the provisions of this chapter, and
shall also make a true copy or duplicate of the original registration list, which, to-
gether with the original, as soon as practicable after same is completed, shall be re-
turned to the office of the judge of probate of the county in which such registration
is made, and delivered to the judge of probate, who shall, assoon as the registration
for all the precincts and wards in such county have been made, cause the original lists,
so returned to him to be securely bound in book form, in good substantial pasteboard
binding, and presefrve the same in his office for public inspection, keeping the several
precincts and wards separate from each other in arranging same for binding, but bind-
ing the whole of the originals for the county in one volume, appropriately labeled;
ami the judges of probate of the several counties shall, as* soon as such returns are
fully made, return the duplicates to the Secretary of State, who shall arrange same by
precincts, wards, and counties, and so cause the same to be bound in oue or more vol-
umes, and in such style as he may deem advisable for convenient reference and preser-
vation ; and the registration books made out by the assistant registrars in the several
precincts and wards shall be kept by them, subject to the inspection of the public, and
in which they shall make entry of all additional registrations made by them, respect-
ively, from time to time, and shall, not less than fifteen days before any general or
special election held in the county, make a supplemental return to the judge of probate
in like manner as the first return.

$235. Duty of assistant registrars to revise lists; how prepared and delivered to judge of
probate. It shall be the duty of such assistant registrars in each year to make a re-
vised list of electors for their precincts or wards, showing the names of all such
electors as shall be known to or be proven to them to have died or to have removed
from the ward or precinct, or to have become disqualified as electors by the convic-
tion of any felony, aud also of all such as have registered at and since the last elec-
tion ; which list shall be prepared in the manner prescribed for the other lists, and
shall be delivered to the judge of probate not less than fifteen days before any gen-
eral or special election ; * and in incorporated towns or cities having a population of
more than five thousand inhabitants not less than ten days before a general or special
election.

v^ 23(5. Xot lawful to register within twenty days before election ; special registrations, how
returned and treated. It shall not be lawful to register any elector within twenty days
before, nor in any incorporated town or city having a population of more than five
thousand inhabitants within fifteen days before, any general or special election day;
and all registrations made on the election day by any registrar appointed for that day
only shall be returned to the assistant registrar for that precinct or ward properly
ertified. which shall be returned to, and be treated by, the judge of probate as if
made by the regular assistant registrars. * But in incorporated cities or towns hav-
ing a population of more than five thousand inhabitants any person who may have
attained the age of twenty-one within fifteen days next preceding any general or spe-
cial election, and who is qualified to vote under the constitution and laws of the State
of Alabama, may be registered by the probate judge of the county on the day of elec-
tion in the same manner as is prescribed for the registration of electors; and such
judge of probate shall cause the name of such elector to be entered upon the registra-
tion list of the ward in which such elector shall reside, and shall issue to such elector
a certificate of registration as prescribed by section 233.

$2:58. Books and blanks furnished probate judges for assistant registrars, t The secre-
tary of state is authorized and directed to obtain and furnish to the probate judges of
the several counties in the State the books and blanks necessary for the use of the sev-
aral assistant registrars; such blanks shall be printed and ruled on good paper, suit-
able for binding in book form, as may be directed by the secretary of state, one-third
of which shall be securely bound in good paper pasteboard and leather binding, in
sufficient numbers to furnish one book to each assistant registrar in the State, together
with at least as many blanks unbound as are contained in such books; and each page
of such books shall be in the following form :

STATE OF ALABAMA,

County of :

We, the undersigned registered electors, each for himself, do solemnly swear (or
affirm) that I will support and maintain the Constitution and laws of the United
States, and the constitution and laws of the State of Alabama ; that I am not excluded

* As amended February 7, 1877, p. 116, sec. 1.

DIGEST OF ELECTION CASES.

from registering or voting by any of the clauses in section three of article eight of the
constitution of the State of Alabama, and that I am a qualified elector under the con-
stitution and laws of this State.

No.

Date.

Name of elec-
tois.

"White or col-
ored.

Registrar's
attestation.

Residence, by
precinct or
ward.

Employer'*
name and re-

marks.

-, registrar for said precinct (or ward), in said county and city of-

do hereby certify that the above and foregoing names of registered voters, from number

one to , inclusive, were duly registered by me according to law, between the dates.

of and , in said precinct (or ward), and that each of said persons so regis-
tered took and subscribed before me the above and foregoing oath, on the days and date*
set opposite to their several names respectively.
Witness my hand this day of , 18.

Registrar.

239. Probate judges make out and file registration lists, furnish copies to inspectors, and
post list.* Each probate judge of the several counties shall, from the registration list
of electors returned to their several offices make a correct, alphabetical list of the
qualified voters of such county, arranged by precincts and wards, correcting and com-
pleting the same from the supplemental and revised returns of assistant registrars,
which list, when so completed, shall be certified by the probate judge officially to be-
a full and correct transcript of the list of registered electors as the same appears from
the returns of the registrars in his office ; one copy of which list the judge shall deliver
to the inspectors of election in each precinct or ward immediately preceding every
election, and one copy of the whole list of registered electors in the county shall be
posted at the court-house of the county ten days, and in incorporated towns and cities-
having a population of more than five thousand inhabitants five days, before the
election.

$ 241. Registration must be in precinct or ward. It shall not be lawful to register any
person except in the voting precinct or ward in which such person is entitled by law
to vote ; and the assistant registrars, when they have no personal knowledge of the
identity or residence of an elector, shall examine him under oath touching the same,
which oath shall be administered by the assistant registrars.

A right of challenge is given at the polls.

Section 278 of the Code of Alabama is in these words:

OATHS ADMINISTERED BY INSPECTORS IN CASE OF CHALLENGE.

When any person offering to vote is challenged by any qualified elector, before such-
person shall be allowed to vote he shall take and subscribe an oath, which one of the
inspectors of such election shall tender and administer to him, and which shall be in
the following form :

STATE OF ALABAMA.

County :

I, , do solemnly swear (or affirm) that

I am a duly qualified elector

under the Constitution and laws of the United States, and the constitution and laws
of the State of Alabama, and that I have resided in the State of Alabama one year
next preceding this election, three months in this county, and have actually resided
thirty days in this precinct or ward (as the case may be) next preceding this
day, and that I am twenty-one years of age, or upwards, and that I have not voted
before on this day at any general or special election, at the place of voting, and that
I have not been convicted of treason, embezzlement of public funds, malfeasance in

*As amended Feb. 7, 1877, p. 116, sec. 1.

LOWE VS. WHEELER. 8>

office, or of any crime punishable by law with imprisonment in the penitentiary, lar-
ceny or bribery. 80 help me God.

And in addition to such oath, if the person so challenged is not personally known to one
of the inspectors to have the qualifications required by Imv, then one of them shall require
such person, before he shall be allowed to vote, to prove his identity and residence in
the State, county, and precinct or ward in which he offers to vote, by the oath of
some elector personally known to some one of such inspectors to be a qualified elector,
which oath shall be administered by one of the inspectors, and be in the following
form :

STATE OF ALABAMA,

County:

I, , do solemnly swear (or affirm, as the case may be) that I have known

(here insert the name of the person offering to vote) for the last twelve months pre-
ceding this election, and that he has been a resident of this State for said time, three
months in this county, and that he has actually resided in this precinct (or ward) for
the last thirty days, and I believe he is twenty-one years of age or upwards, and that
he has not voted before on this day at any general or special election. So help me-
God.

And.upon such oath being duly taken and subscribed, the ballot of the person offer-
ing to vote must be received and deposited as other ballots of qualified electors.
And it shall be the duty of the inspectors to tile all the oaths so taken and subscribed,,
and when the election is closed, such inspectors shall forward them, in a sealed pack-
age, to the judge of probate, who shall lay them before the next grand jury sitting for
said county.

Contestant contends that a non-registered elector is not disqualified
under the laws of Alabama. His argument on this point is inserted :

Constitution provides : "The general assembly may, when necessary, provide by
law for the registration of electors throughout the State, or in any incorporated
city or town thereof, and when it is so provided no person shall vote at any election
unless he shall have registered as required bylaw." What is meant by the clause,
" when it is so provided? " The word "so" qualifies and gives meaning to the clause.
It means manner or extent. It is equivalent to saying that when the law shall pro-
vide in that manner, or to that extent. That is, when the law shall require person*
to register as a necessary prerequisite before voting, then no person shall vote until
he shall have registered, as required by law. Is there any law of the State of Ala-
bama which requires an elector to register before he can vote, or authorizes the rejec-
tion of his vote after it is cast because he has not registered T The statute regulating
the qualification of electors is 224, Code of Alabama [1876], is as follows: "Every
male citizen of the United States, and every male person of foreign birth who ha*
been naturalized, or who may have legally declared his intention of becoming a citizen,
of the United States, before he offers to vote, who is 21 years old or upwards, who-
shall have resided in this State 1 year, 3 mouths in the county, and 30 days in the
precinct or ward, next immediately preceding the election at which he offers to vote, is,,
unless within the disabilities imposed by the provisions of this chapter, a qualified
elector, and may vote in the precinct or ward of his actual residence, and not elsewhere,,
for all officers elected by the people." Who are the persons disqualified by the pro-
visions of this chapter ? "Those who have been convicted of treason, embezzlement
of public funds, malfeasance in office, larceny, bribery, or other crime punishable by
imprisonment in the penitentiary, and idiots or lunatics, shall not be permitted to vote
in this State at any election by the people." These are the only persons prohibited
from voting. They are not prohibited because they have failed toregister, but because
they have been convicted of specified crimes, or are idiots, or lunatics; all otherper-
sons are legal voters who possess the qualifications prescribed in $ 224. What are
these qualifications? The elector must be a citizen of the United States, or have de-
clared his intention to become a citizen of the United States, must be 21 years old,
must have resided one year in the State, three months in the county, and thirty days
in the precinct, or ward. These are the only qualifications citizenship, residence, and
age. Not a word is said about registration. If the elector has all the quab'fications
mentioned in the statute he is a legal voter, and there is no law to reject his ballot
because he is not registered.

Section 278 requires persons who are challenged to take an oath, which is herein
set out. The elector is required to swear to age, residence, and that he has not voted
at any other precinct on that day, and in addition to such oath, if the person chal-
lenged is not personally known to have the qualifications required by law, he must
prove his identity and residence in the State, county, precinct, or ward by the oath
of some elector personally known to one of the inspectors, to be a qualified elector.
He is required to prove every fact but registration. Why is he not required to prove
registration ? Because registration is not a necessary qualification of a legal elector-

90 DIGEST OF ELECTION CASES.

What is the object of registration ? It is to furnish evidence to the inspectors of
who are legal voters. It is not conclusive, nor the only evidence. He may he chal-
lenged, although his name may be on the registration list, and he must then prove his
qualifications by his own oath, and if he is not known to one of the inspectors to be a
nullified elector, then he must prove his qualification by some elector known to the
inspectors. If his name is not on the registration list, and he is challenged, he can
prove his qualification in the same manner. When this proof is tendered, the in-
spectors have no discretion, but are compelled to receive his ballot, and put it in the
box. The conclusion is that registration has not, in Alabama, been made a necessary
qualification to vote.

There seems to be no decision of the State courts on the point raised,
and the question becomes immaterial, unless the necessary basis of
facts is first established. I am inclined, however, to the opinion that,
under the constitution and the statutes passed thereunder (both being
in harmony), that registration was designed as a reasonable regulation,
although not prescribed as a qualification.

The question is not free from doubt, but considering the object and
purposes subserved by a system of registration, I am inclined to so hold.

It is quite doubtful whether the law of Alabama renders void a vote
of a non-registered elector when once cast and received. But for the
purposes of the present case, I may safely assume that registration was
intended as a prerequisite, and so regard it.

Analogous questions were discussed in the case of Finley vs. Bisbee
in the Forty-sixth Congress, and in Curtin vs. Yocum in the Forty-sixth
<3ougress. They furnish, however, no substantial authority beyond the
general doctrine discussed, as the constitution and statutes of those
States differ materially from those of Alabama.

While, for the purposes of this case, I assume that registration is a pre-
requisite in Alabama as a reasonable regulation, I find that the proof
does not sustain the charge made by the contestee.

The number of non-registered votes seems quite large under con-
testee's allegations. And if the law of Alabama is as claimed, it
seems quite strange that, in a hotly contested election such as this was,
and when the polls were managed and attended by vigilant officers and
challengers, with a copy of the registration lists before them, about one-
third of the whole number of electors in the precincts referred to were
not registered.

The following circulars will show how the canvass was conducted.
It appears that the Democratic party had in most of the precincts two
at least of the three inspectors, and in some cases all of them, besides the
other officers. It must be presumed that the managers and challengers
knew and could identify easily most, if not all, the voters in the precincts.
I give the printed document in full, as bearing upon this issue and
affecting probabilities :

EXHIBIT D.

The following recommendations are made to the respective Hancock clubs in the
8th Congressional district of Alabama. Each club can judge which of the recommen-
dations are adapted to their locality, and will, of course, only adopt measures as, in
their judgment, seems to them expedient. A prompt and vigorous compliance with
the plans they adopt is earnestly urged.

THE WHITE VOTE.

1. Make a list of white voters in each precinct not on the roll of its club.

2. Appoint a committee of one member to wait on each of these and respectfully
and cordially invite him to join us. The committee to report at the next meeting ot
the club.

LOWE VS. WHEELER. 91

'.'.. It' any oue fails to respond to this invitation, send a committee of two other mem-
bers most likely to influence him, who will urge him by every consideration that can.
be presented not by lethargy or inaction to desert his kindred and country in this ef-
fort of deliverance, and in some cases to tell him that his decision will, in the opinion
of many of his friends and neighbors, determine whether we regard him as n friend or
foe to our party.

With some persons such extreme expressions would not be advisable, as many gen-
tlemen who do not care to have their names enrolled in clubs are our earnest friends.

THE BLACK VOTE.

1. Make at once a complete list of the qualified negro voters in your precinct, in
which shall be set down :

First. The name and address of each voter.

Second. With whom he works, and whether as a hired hand or tenant.

Third. What merchant or other person advances for him.

2. It is deemed preferable that this census be made by regularly appointed census
takers or committees, and that the negro voter should know that he is thus enrolled by the
club.

Returns to the central organization of the county.

3. As soon as these lists are completed, each club will promptly forward a copy to
the county chairman, to the end that all may be collated and printed.

A copy of the county vote thus registered should be in the hands of our friends at
each voting precinct on the day of the election.

4. Make a separate list of those members of the club who think they have no in-
fluence with the negro voters and detail each one to look after one or more lukewarm
or infirm white men in the precinct, and see that they vote.

5. There are a number of negroes who will not vote with us, but who will promise
to stay away from the polls.

To look after these and see that they adhere to their promise, enroll young white
men of the precinct under the voting age, before the day of the election, and assign
each one to his negro.

A legitimate and peaceful election.

The foregoing suggestions contemplate winning the election by fairly placing in the
boxes the most votes legitimately obtained. Systematic and energetic exertion will
do it. Each member of the Hancock clubs must have his part in the work assigned
him and the club hold him to his full performance.

Rioting before or at the polls, or race collision brought about by the whites, are
deemed almost insane folly. We may carry the election by these means, but we would
not reap the beneficial results.

On the other hand, the colored men who go with na must be protected there and at
all times. And while it is not expected that insolent aggression be submitted to by
the white man, every consideration of patriotism and every hope of success in the
effort we are making to establish the constitutional free government of our fathers
should lead our friends to avoid every occasion of disturbance; and if they unfortu-
nately arise, then be sure they are in the right.

If we attend the meetings of the Radical party hereafter, each club in whose terri-
tory a meeting shall be expected shall promptly inform the county chairman, to the
nd that he may order a proper attendance from the clubs.

It is of the first importance that the county chairman or central organization be kept
thoroughly informed of the progress of the canvass.

If our plans are or are not succeeding we must know it, so as to conform to circum-
stances.

THE ELECTION.

1. The club will use their influence to cause all persons employing Democratic labor
to aid them to be present and vote.

2. Make a list of white men who from infirmity or other causes need bringing to the
polls, and assign a member of the club to each one of these.

3. Appoint two challengers and furnish each with a copy of the list of voters or
census.

4. Appoint a committee of members who will exercise general superintendence and
see that the programme on each election day is carried out.

92 DIGEST OF ELECTION CASES.

5. Use all lawful means to watch arid keep to their promise those negroes wbo have
agreed not to vote.

But above all things he careful in this to avoid intimidation.

PLAN OF CAMPAIGN.

1. The Hancock clubs for the election of all Democratic nominees will meet not
less than twice a month; oftener when expedient, and in executive session with
closed doors.

2. It is desirable that our attention be concentrated upon selected negro voters to-
secure the majority desired, and that the others be let alone.

Those selected for our efforts should be, not party leaders, office-seekers, or other*
who expect to make something out of the Radical party, but-
First. Those who have acquired property and pay taxes.
Second. Those whose relations to and standing with the whites is best.
Third. Those who are poorest and most dependent upon the whites.
Fourth. The weaker classes generally.

3. It is deemed best to operate upon the individual negro voters and to carefully
avoid attempting to influence them in masses. To this end, when your register of
negro voters is complete, submit it to your club, and require each member to select
such negro or negroes as he can influence. Let such member be a committee of one
for the purpose he has undertaken and report results to the executive committee of
the club; these results to be registered, and report when called for by the county
chairman.

It is hardly probable that so many persons would openly violate the
law or be allowed by sworn officers to do so. The penalty prescribed
for the fraudulent voter is severe under the laws of Alabama, although it
is said to be quite light comparatively as regards the officers of election.
They had with them in each precinct, as must be assumed under the
provisions of the law cited, full certified copies of the registration lists
with the names of the electors alphabetically arranged thereon, and the
assistant registrar of the precinct was required to be present at the
polls -with papers ready to register all electors who had not been regis-
tered prior to that day, and it may be assumed that he was present, or
that some other person was appointed by the inspectors to attend to
that duty in his absence.

The vigilance exercised generally is illustrated by what was done in
regard to the so-called marked ballots already considered. Similar
activity is probable in respect to the registration and challenging.

It is not now claimed or shown that any of those who voted were not
in fact qualified voters and entitled to vote otherwise, or that any of
them were challenged. No one of them is called as a witness to prove
his identity or failure to register.

All this renders the claim of contestee very improbable. It would
require proof of an indubitable character.

It is the settled law of elections that where persons vote without challenge, it \\i\l
be presumed that they were entitled to vote, and that the sworn officers of the elec-
tion who received their votes performed their duty properly and honestly, and the
burden of proof to show the contrary devolves on the party denying their right to
vote. (Report in Fiuley vs. Bisbee, Forty-fifth Congress.)

We call attention to the case of Perry vs. Kyan, 68 Illinois, 171':

Where a person votes at an election without having been registered and without
any proof of right, if it does not appear he was challenged or any objection made to
his vote, the presumption must be that he was a legal voter and was known to the
judges of election.

In 83 Illinois, 498, where a registry law very similar to the law now
under consideration was construed by that court, it was held :

The presumption of the legality of a vote in no way depends upon the omission to
challenge or object to it, or any presumed knowledge of the judges of election, but it

LOWE VS. WHALER. 93

arises from the fact of its having been deposited in the ballot-box. When ouce de-
posited it will be presumed to be a legal vote until there is evidence to the contrary.

Now, let us see what the proof adduced is.

Coutestee has procured aud put in evidence certain papers certified
to by the probate judges in five several counties respectively, purport-
ing to be copies of the registration lists for the precincts involved, and
also of papers called the poll-fists from the same precincts. His claim
is that he produces certified copies of all the registration lists of these
precincts, which show all the persons registered aud qualified to vote
iu the same, and poll-lists showing the names of all those who did vote
.as written down by the clerks at the election. By comparing these
papers in each precinct named in his table, cited hereinbefore, he finds,
as he says, and as witnesses who have compared them swear, 2,698
names in the aggregate on the poll-lists which are not on the registra-
tion lists, and he contends that it follows that they were not registered,
and their votes illegal.

The minority of the committee, in their report (p. 27) in Bisbee i\
Finley, an analogous issue, said that " the evidence relied on was wholly
inadequate, being altogether inferential." But we go further:

Now, in order to have this proof satisfactory and sufficient it must at
least be shown by affirmative, competent, and credible evidence that
the records contain copies of all of the original and supplementary lists
of registration made out by the registrars aud assistant registrars since
1875 and before the election of November 2, 1880, together with all that
were made on election day at the polls by the assistant registrars, or
those appointed in their place by the inspectors in the absence of the
registrar. Unless we have copies of all the registration books and
lists, we have not got the proper basis for comparison.

We must next have all of the requisite poll-lists duly proved and
properly authenticated.

Upon examining the copies certified to, we do not find, save in a
few cases, what answers these requirements. I find certified lists ex-
tracted or taken from books, not copies of the original books or lists,
or what purport to be copies of the same. I find nothing to show
what names were ouce on them, aud been dropped or taken oft' by reason
of deaths, removals, or disabilities, or for other reasons. Judge Rich-
ardson certifies, page 1225, that one volume is missing in Madison
County, and Judge Talley that part are lost iu Jackson County (Eec.,
p. 798.) Few of the lists are verified in the original by the certificate of
the registrar, as required by statute, and as it must be presumed they
would be if genuine. In some of the counties the copies annexed do not
cover the whole period of time from 1875, the date of the first registra-
tion, to the day of election, and including the lists made on the day of
election under the law.

The papers copied, or purporting to be extracted from, are not many
of them in the form prescribed, with the appropriate headings, contents,
and certifications, as they would be if the genuine originals. The case
is such as to demand legal and strict proof.

I am not satisfied with that adduced. It is too loose, uncertain, and
irregular, and so liable to error, mistake, and omission as to require
extrinsic evidence, which we have not got, in its support. Mere certifi-
cates of judges beyond that of copies of papers given are not enough
to meet counter-evidence and presumptions.

I do not mean to intimate that any of the judges of probate would
knowingly make or give false certificates, or intentionally withhold any
lists. But when we find, as we do, proofs that registration lists have been

94 DIGEST OF ELECTION CASES.

kept loosely and not bound up in books, as the law requires, some of them
lost and not to be found, some of them made up since the election was
held, many of them not covering the whole period of registration, and
few of them answering in form or substance the requirements of the law.
the papers furnished are not entitled to full credit. Several of the
judges have been examined as witnesses, but they have failed to supply
the needed evidence that the lists produced are all that were ever re-
turned into their offices, and supply other facts needed to give certainty
and exclude certain reasonable hypotheses.

(See evidence of Judge Harroway, pp. 906, 907; Bridges, pp. 321-325;
Briggs, p. 884; Judge Steele, p. 1358.)

In one instance the judge certifies to a copy of a poll-list, and swears
to it as if produced by him from the files at his office, when it was never
there and comes into the evidence from other sources. (Rec., pp. 822,
854, 807-8.)

None of the registration lists furnished the inspectors and used at the
polls are put in evidence. None of the registrars are called as witnesses
to see whether all the registration lists taken at the polls w r ere sent into
the probate offices and when, or how many were registered at the polls
and given certificates. It does not appear how .many and what ones
were challenged and took the oath prescribed, and then voted, as the
oaths do not appear to be in the probate office.

The only evidence we have of the names of the persons who voted is
in the shape of what purport to be certified copies of poll-lists found in
the office of the judges of probate. How they came there or when de-
posited does not appear, save as a presumption of fact. It was the duty
of the inspectors to certify and sign the poll-lists and send them in with
the returns, and they are required to be left and kept at the probate
office. An inspection of the copies produced shows that most of them
do not contain the certificate of the inspectors as required by law, and
they have no verification or identification therefore as genuine poll-lists,
and cannot be regarded as proof. In some cases a presumption of fact
may do; but on a controverted issue like this that presumption is of
jjght weight.

In the three precincts of Limestone County embraced in the claim
there are no poll-lists which appear to have been returned at all. Con-
testee has put in evidence three papers, sworn to by one of the inspect-
ors, in each case as the poll-list, and purporting to be signed by the three
inspectors. But as they never sent them to the probate office, as re-
quired by law, and no reason or explanation for the omission is given,
we do not regard them as proof or as worthy of credit. The conduct of
these inspectors is the subject of grave distrust, and the alleged discrep-
ancies so great that the rejection of this evidence is fully warranted.
There is a strong probability at least that there was fraud and manipu-
lation on the part of the single inspectors respectively who produced
the lists. Neither one of them is supported by the evidence, or even
proof of the signatures of the other inspectors, as they are not examined
as witnesses. They knew the law requiring the inspectors to verify
the poll-lists, and must be presumed to know also that they were re-
quired to send them in with the returns. If they purposely withheld
the poll-lists (and they do not preteud to the contrary) it may safely be
assumed to have been for some fraudulent purpose. If they are guilty
of fraud in that respect they would not be likely to stop short of most any-
thing else. Contestee called witnesses to testify that they had examined
the copies of registration list produced and the poll-lists referred to, and
give lists of names which they find on the poll-lists and not on the regis-

LOWE VS. WHEELER. 95

tration lists. I have compared the same papers to a considerable ex-
tent, and am enabled to say that these witnesses have testified with
great recklessness, to say the least. I have gone over the list of names
(given as not registered) in several instances. Besides some name*
which are on the registration lists in full, we find many which differ
only in some particulars, there being such a correspondence as to indi-
cate that they relate to one and the same person. In many cases the
differences are very slight. The clerks at the polls manifestly wrote in
great haste and carelessly, not getting or hearing the name as pro-
nounced with any accuracy. For instance, ''Henry Stokes" is on the
registration list and "Henry Stocks" is written on the poll-list. The
surname ','Quades" is written "Quarrels," while the initials are the
same. (See illustrations, Bee., p. 1043-1045, 509, 515, 820, 819, 1358-
1359.) And yet these persons are claimed and sworn to as among the
non -registered.

The instances of this nature are so numerous and marked, among^
other evidences of haste and inaccuracy, if not that they have been ma-
nipulated and gotten into the probate court fraudulently in place of the
genuine, as to render the poll-lists unreliable for sinapie comparison.

Besides this it is in proof that negroes go by different names, and
often change their names, and that this is done by them generally and
as a class, and that their residences are not always fixed and permanent,
but they often change them. They may have registered in one precinct
or county, and then moved into another, and remained long enough to
get a right to vote there without getting on to a new register, while the
constitution requires them to be only once registered in order to be al-
lowed to vote. Some instances appear casually in the evidence where
such produced certificates of registry from other precincts and counties
show their right to vote.

It would seem that registration lists were not sent to the probate
court in some instances; that one whole volume was lost in Madison
County, and some lists in Jackson County; that poll-lists were not re-
turned in many cases as required by law; and it is quite probable that
more lists than are proved have been mislaid or lost. It is more prob-
able that this is so than it is that so many persons not registered should
vote and be allowed to vote fraudulently and without challenge. As-
electors could be registered at the polls, if not registered prior, and get
certificates so easily, and if registered elsewhere could vote by taking
the prescribed oath, there is a very wide field of probability to explain
the discrepancies alleged between any particular registration list and
poll-list produced. There are a very few instances where both the reg-
istration lists and the poll-lists of the same precinct are proved and ap-
pear to be regular and complete. And in these the things suggested
would and do explain the alleged want of identity in the names as written.

Unless the explanations suggested avail, it is apparent that large
numbers on the registration lists did not vote at all, which is quite im-
probable in an election exciting so much interest and so hotly contested.

There is no list furnished which indicates or shows revisions made be-
cause of deaths, removals, and disabilities. And we don't know how
many may have been stricken off by mistake or wrongfully, or how
many had once removed after being registered and afterwards returned
without their names being restored by the assistant registrar, whose
duty alone it was to do it. I have already adverted to the fact that be-
ing registered once in the State seems to answer the constitutional pro-
vision. 2To fault of the registrar in striking a name off or in omitting
to restore it can deprive the voter of his right to vote if once registered.

96 DIGEST OF ELECTION CASES.

To go into full details would occupy too much space. I will refer
to only a few in addition to what has been already said.

In Limestone County the registration lists purporting to be furnished
are manifestly not copies of original registration lists, but of some pre-
pared for the occasion or taken loosely from some list or source not ap-
pearing. The poll-lists furnished in copy do not come from the probate
court, but from one inspector by deposition, each one a delinquent,
and a violator of law and duty, without excuse or explanation shown,
and subject to the gravest suspicious as to their motives in withholding
the poll lists from the returns made after elections. These three pre-
cincts alone involve 344 alleged illegal votes.

Registrar Martin, page 814, swears to loss of registration list of 145
names.

In Florence precinct, while it is claimed that there were 280 non-reg-
istered voters, a challenger was present, who challenged vigorously over
100 electors for other reasons, but not one as not registered. (Deposi-
tion of Jones, 881.) In Triana precinct 275 non-registered are claimed
out of a vote of only about 412 voters. 11 Registration book No. 1, certi-
fied to as lost or mislaid, may account for this. Poll-list not signed by
inspectors. As two witnesses were examined by coutestee as to this
poll, and were present challenging, it would have been well to have had
a- copy of the registration which was at the poll on the day of election
to see whether the names were not in fact on that. We have got neither
this nor any revised lists made by the registrars at any time since 1875.

They must now be presumed to have been on, and that there is some
mistake about the copies furnished by the judge or purporting to be.

In Lauderdale County it appears that no registration book as required
by law could be found. (Rec., p. 907.)

In Madison County only one of two poll-lists are duly certified and
verified as genuine.

Names are pasted on in printed slips instead of being written, as the
law requires.

Inasmuch as books of registration were not made and kept according
to law, but it was found on loose sheets, the lists sent to each precinct
on the day of election would have been the best or most satisfactory
evidence of who were registered, and in no instance have we got them.

All of the evidence has been Examined upon this issue of non-regis-
tration with an anxious desire to do the contestee and^his alleged proof
full justice. There seems to have been wanting on his part no amount
of industry and professional skill in the preparation and argument of
his case. But there is a conspicuous absence of evidence needed to
establish his claim, if well founded. Even the judges of probate have
failed to give such oral evidence as was needed to make the proof of
registration and poll-lists satisfactory and complete. Their testimony
is more significant for what was not asked in questions than for what it
contains, especially after the objections thereto made and indicated at
the time. There is also a total failure to call the assistant registrars and
the inspectors and managers of elections, and to produce the books kept
by the former, and the lists used at the polls, and to supply what is
wanting in the papers produced to verify the same as all and accurate.
They had been attacked by contestant, and his objection to the proof
indicated in many respects. Presumptions of regularity and full dis-
charge of duty in the respects now in question are balanced by other
presumptions in favor of contestant, and much shaken, if not entirely
overthrown, by evidence otherwise. With such proof as appears of
looseness and irregularity in regard to the registration and poll lists,

LOWE VS. WHEELER 97

and their use, with no evidence from the electors themselves, or the
registrars or election officers, in the absence of the lists used at the
polls, and upon the. tacts already shown in proof and already indicated,
a comparison between the alleged lists produced fail utterly to prove
the alleged charges of the coutestee, and we feel constrained to find
the issue against him.

We are asked to presume that all registrars did their duty, that judges
of probate had all the papers which the law provided should be sent to
them, that the poll-lists not signed were the genuine and true ones, when
they could be so easily manipulated without complicity on the part of
the judges, in order to overcome all the presumption in favor of the
legality of the votes cast. I cannot do it in the face of so much evidence
as appears to weaken those presumptions invoked by contestee.

There is another consideration which ought to be noted as a very
strong reason at least why coutestee should be held to the strictest
rules of evidence, if not as justifying the claim that the ballots of
voters not on the registration lists apparently should not now be re-
jected after they were offered and deposited without challenge or
objection at the time. Under the law of Alabama, as already stated,
any qualified voter, if not on the copy of registration lists with the
inspectors conducting the poll, and challenged, may register at the time
and on the spot, or take the requisite oath and then rightfully vote.
If he is not challenged, and is allowed to vote without doing this, the
failure of duty on the part of the registrar or inspectors may unjustly
deprive the elector of his vote. . The case would perhaps come within
the spirit, if not the strict letter, of section 2007 of the Eevised Statutes
of the United States.

The remarks of Mr. Calkins in case of Curtiu v. Yocum, although not
in nil respects applicable to this case, are pertinent and forcible, and
we quote them :

I call the attention of the members of the House especially to the conclusion reached
by Judge Brings in construing this law. He says : " By accepting the vote," refer-
ring to the non-registered voter who presents himself at the polls without an affidavit,
&c. " by accepting the vote without demanding the proof they deprive the voter of
the opportunity of furnishing it." To construe the law as contended for by my friend,
from Pennsylvania (Mr. Beltzhoover) makes it a mere trap, for the reason that the
voter presumes, or he has a right to presume, that he is registered. He has lived in
the precinct the time required by law; he has paid his tax ; the assessor has been to
his house ; he knows his name ought to be on the registry list, and he goes up to the
ballot-box with the ballot in his hand. They take his ballot and deposit it in the
ballot-box, and afterward, when he cannot furnish the proof, it is contended his vote
is an illegal one, while if the election officers had called his attention to it at the mo-
ment he could have supplied the evidence required and established his right to vote
to the mode prescribed. But that evidence was not demanded. He voted knowing
that he had a legal right to vote, but the legal evidence of his right was not required
of him by the election officers. And applying the same doctrine as in AVheelock's case,
" you caunot deprive the legal voter of the right to vote by reason of the failure of the
officer to do his duty," and it seems to me that the position is unassailable.

Regulations may be merely directory, and if the officer of election or
the voter does not follow them they do not necessarily vitiate the vote
when deposited and received.

The present case is a very strong one for the application of that rule,
in the absence of any statute making registration a prerequisite, and
where the system of registration is so imperfect and loosely managed.

In the record there appears to have been sundry rulings of the mag-
istrate as to admission of evidence, &c., to which exceptions were taken.
The course pursued in this respect was manifestly irregular. But this
becomes now immaterial and unimportant. The various motions made
H. Mis. 35 7

98 DIGEST OF ELECTION CASES.

by the respective parties as to striking out evidence have been con-
sidered and denied either as immaterial or not well grounded.

The alleged want of proper certification to the depositions taken by
Robert W. Figg has been rectified by his affidavit and further certifi-
cate by way of amendment,

I have paid no attention to attempted personal imputation upon par-
ties and counsel not affecting the evidence.

My opinion, therefore, is that contestant was elected and should have
the seat, and I approve of the resolutions attached to the report of Mr.
Hazelton, while I dissent from some of the views embodied in that
report.

WILLIAM M. LOWE vs. JOSEPH WHEELER.
EIGHTH CONGRESSIONAL DISTRICT OF ALABAMA.

Mr. BELTZHOOVER, from the Committee on Elections, submitted Ibe

following as the

VIEWS OF THE MINORITY:

The undersigned are notable to concur in the report of the majority of
the committee. The evidence shows that the election was conducted
with perfect fairness on the part of Wheeler and his supporters. Indeed,
there is no pretense that there was unfairness anywhere except at
Meridianville and Lanier's precinct, and the most extraordinary efforts
on the part of Mr. Lowe and his attorneys utterly fail to prove any fraud
or unfairness at these boxes.

The voluminous character of the record has precluded nearly all the
members of the committee from giving it that thorough examination
which is necessary to a perfect understanding of the case, and, as a
consequence, the report of the majority contains errors, to a few of
which we will refer :

1ST.

The majority consider evidence introduced by Mr. Lowe which pur-
ports to prove matters which are not set up in the notice of contest^
and refuse to consider evidence of matters proven by primary and un-
controverted evidence which are specifically set up and insisted upon
in the answer of the contestee, these matters being such as the law re-
quired them to consider, and such as the majority of the committee have
considered in other cases during this term of Congress.

2D.

Evidence which the majority in this report say is good and sufficient
to establish the allegations of Mr. Lowe they in the same report say is
insufficient to support the allegations of Mr. Wheeler.

3D.

Certain witnesses give evidence regarding votes castfor both Mr. Lowe
and Mr. Wheeler.
The evidence is precisely of the same character, the votes referred t

LOWE VS. WHEELER. 99

are precisely of the same class, the evidence is given by the same wit-
nesses, and in some cases it is given in the same breath and in answer
to the same questions, and yet the majority of the committee count the
votes for Mr. Lowe and refuse to count the votes which the proof shows
were cast for Mr. Wheeler.

Worse than that, the report of the majority counts votes for Mr. Lowe
upon statements of witnesses who swear they do not know anything of
it personally, and they refuse to count votes for Mr.' Wheeler the rejec-
tion of which is positively proven.

For instance : Mr. Harraway swears he does not know personally that
any Lowe ballots were rejected, but he swears that he does know that
a Wheeler ballot was rejected.

On this evidence the majority count 4 votes for Mr.- Lowe and refuse
to count any votes for Mr. Wheeler.

Mr. Hill, who was illegally examined in chief during the last ten days,
when the law only allowed evidence in rebuttal, testified and admitted
that his knowledge that 22 Lowe ballot's were rejected icas not based
upon his actual knoicledge, but it teas based pretty much upon what a clerk
told him. This illegal evidence was taken at an unlawful time, so that
Mr. Wheeler could not take evidence to refute it, and yet the majority,,
on such evidence, count 22 votes for Mr. Lowe.

We observe six other instances where Mr. Lowe's witnesses testify
that ballots cast for Mr. Wheeler were not counted, and yet the major-
ity of the committee refuse to give Mr. Wheeler the benefit of their evi-
dence, although their evidence is precisely the same as the best evi-
dence which is relied upon by Mr. Lowe, and although in one instance
alone this failure makes a loss of over 50 votes to Mr. W T heeler.

4TH.

The majority of the committee accept and consider in substantiation
of Mr. Lowe's allegations testimony which is secondary in its character,
which is contradicted by Mr. Lowe's own witnesses, and which uncon-
tradicted proof shows has been altered and forged since it went into
the hands of Mr. Lowe's agents or attorneys. Mr. Wheeler made a
proper and seasonable motion to have the forged evidence stricken from
the record, but the majority of the committee failed to strike said forged
matter from the record.

OTH.

The majority of the committee refused or failed to deduct votes of
unregistered voters who illegally voted for Mr. Lowe, giving two rea-
sons therefor :

1. Because they say registration is not required in Alabama.

2. Because there is no evidence which establishes definitely and iden-
tically for whom they voted.

The first position was so untenable that it was not assented to by all
the members of the committee who voted for the majority report ; and
we hereafter will show it to be entirely without foundation.

The second position is positively contradicted by the proofs. In the
limited examination we have been able to give to this point we find the
names of over 500 of these unregistered voters who the witnesses
swear positively voted for William M. Lowe. Some of this evidence is
given by Mr. Lowe's witnesses, and by Eepublicans who swear that
they saw the voters hand their ballots to the inspectors with Mr. Lowe's
name on said ballots.

100 DIGEST OF ELECTION CASES.

This evidence is positive, uniinpeached, and unquestioned.

GTH.

The majority of the committee refused or failed to deduct illegal
votes of unregistered voters who voted for Mr. Lowe at Coiirtlaud and
other precincts, where the proof shows there was no person registered
f as required by law," and consequently there was no legal registration,
and Mr. Kanney, of the committee, gives as a reason for this action,
.and it is the only reason given, that " contestee does not set up a want
-of legal registration as vitiating the election at any precinct."

In making this statement Mr. Kanney was mistaken.

The following allegations are contained in the answer of the con-
testee :

Contestee alleges that at the following precincts of Lawrence County, viz, Court-
land, Red Bank, &c., * * * 450 persons were allowed to vote, and did vote, for
contestant, some of whom had no right to vote at the precincts where they cast their
voles, and others who voted at said precincts were not legal voters, and had no right
to vote at all.

And contestee also alleges that said persons who voted for contestant
.at said precincts u did not have a right to vote, for the reason that
'they had never been registered as required by law."

Jt is here shown that the allegations of Mr. Wheeler emphatically
.state there was no legal registration at Courtland or that he uses the
equivalent words that the persons who voted for contestant had "not
.been registered as required by law,"

The deposition of the probate judge of Lawrence County proves that
these allegations are correct, and that there was no legal registration
at that precinct.

Under a similar registration law the majority of this Committee on
Elections decided in the case of Bisbee vs. Finley that eight precincts
in Brevard County should be rejected, and the proof in that case does
not show that the registration in those precincts was as incomplete and
illegal as it is shown in this case to have been at the precinct of Court-
land.

It is shown by primary evidence that none of the voters at Courtlaud
were registered as required by law, and that with regard to 189 of them
there was no pretense at registration, and yet the majority count these
illegal votes for Mr. Lowe.

TTH.

The majority of the committee refused or failed to deduct the illegal
votes of non-resident persons who voted for Mr. Lowe, although the
proof is positive and uncontradicted that such persons voted for Mr.
Lowe, and that they were not residents of Alabama, but residents of
other States.

The witnesses give evidence regarding this matter similar to the
following :

John Wilson was not a resident of Alabama ; he lives in Tennessee, and he never
pretended to claim this as his home.

Wesley Phillips was a non-resident of the State of Alabama; he lives in TenncsMT.

Squire Holsten was a non-resident of the State of Alabama; he lives in Georgia,
and is an illegal voter.

John O'N< al was a non-resident of the State of Alabama; claims his home in
Georgia.

Berry Blair was a non-resident of the State of Alabama ; lives in Tennessee ; was
.an illegal voter.

LOWE VS. WHEELER. 101

The witnesses also testified that all the non-residents whose names
they gave voted for William M. Lowe, and all these names are found on
the poll-lists.

We could go on with these details, but space forbids.

It is evidence of this character which the majority of the committee
says is " not sufficient."

They also say: "His [Wheeler] proofs do not sustain his allegations. 17

It appears to us that Mr. Wheeler proved conclusively that minors
voted for Mr. Lowe.

Mr. Lewis swears that Jack L. Armestead voted for Mr. Lowe; that
he had known him for ten years, and when he first knew him he was
not more than six or seven years old. He also swears that Berry Conger
voted for Lowe ; that he had known him for twelve years, and when he
first knew him he was not more than six years old.

On page 894 of the record contestee proved that James Chandler was
only eighteen years old. Also, page 899. that Robert Smith was only
twenty years old, and that Ephraim Springer was only twenty years-
old. All of these persons the proof shows voted for Mr. Lowe.

This is the character of the uncontra dieted evidence which Mr. Wheeler
produces to show that minors voted for William M. Lowe.

8TH.

At Courtland precinct (the same place where the proof shows that
there was no legal registration, and that 180 unregistered persons cast
illegal votes for William M. Lowe) the preponderance of evidence de-
cidedly shows that none of the inspectors were supporters of the party
which sustained Mr. Wheeler, and Mr. Lowe's witnesses are compelled
reluctantly to admit that they violated the law which required them to
count the ballots immediately on the closing of the polls, and that they
pretended to be occupied for nine hours in counting about 500 ballots,
and then put the counted and uncounted ballots together in a rough
box, and that one of their number took the box off and kept it until
the next day, when a box was returned which contained some ballots
which they counted in an illegal manner, and made a report that Mr.
Lowe had received 419 votes and that Mr. Wheeler had received 111
votes.

The proof also shows that this report was false, as the witnesses
admit that Mr. Wheeler was polling a large vote quite as large as that
polled by Mr. Lowe and some of the witnesses testified that he (Wheeler)
polled two or three times as many votes as were counted for him.

Mr. Wheeler has proven, by uncontradicted and uncontroverted evi-
dence of Republicans as well as Democrats, that over 200 persons voted
for him at that box.

Mr. Wheeler's allegation with regard to this poll conforms to the
proof, and we conclude that the box should not be counted.

We respectfully submit that we have never seen a case where the
integrity of a ballot-box was more emphatically and essentially im-
peached, and where justice called louder for action.

9TH.

On the other hand, we now look at the action of the majority of the
committee regarding Meridianville box ~So. 2.

Mr. Lowe in his notice does not ask to have this box rejected, and
therefore under the rules laid down by the committee regarding Wheel-

102 DIGEST OF ELECTION CASES.

er's defense they could not reject it;' but above and beyond this the proof
shows that there was no violation of law at this box.

Mr. Forbes, Mr. Lowe's special friend, was present as supervisor, the
votes were counted strictly as provided by law, and the supervisor and
the inspectors made their respective reports, each stating that Wheeler
received 57 and Lowe received 47 votes.

The proof shows that this vote was proportioned substantially the
same as it was at the election three months previous, when the vote for
governor was: Cobb, Democrat, 42; Pickeus, Opposition, 34.

The testimony of Mr. Trewhitt, Mr. Eoper, and Mr. Hawk, who were
officers of the election which we are now considering, and whom the proof
shows to be gentlemen of high standing, shows that the vote was counted
as it was cast, and that no fraud could possibly have been practiced at
these polls.

The majority of the committee cite against the sworn report of of-
ficers, and against the evidence of men of high standing and character,
the testimony of two colored men, of whom one is impeached by the di-
rect testimony that his character is so bad that he is not worthy of belief
under oath, and both are impeached by their own contradictions and by
credible testimony of other witnesses. But in addition to all this the
evidence of the contestant is not of a character to justify the committee
in receiving it to prove that there was any fraud or unfairness at this
box, and taking all the proof together it shows no ground for its re-
jection.

The record also shows that during the ten days allowed by law for
evidence to be taken for contestant in rebuttal Mr. Lowe's attorneys
served a false notice upon Mr. Wheeler, stating they would take evi-
dence of some fifty-five witnesses at or near Pleasant Hill.

This notice designated no definite place, and Mr. Wheeler caused a
demand to be served upon them, asking for more specific information
regarding the locality where the evidence would be taken.

This polite and proper request was not complied with.

Mr. Lowe's attorneys went to a place seven miles from Pleasant Hill
and proceeded to take evidence ex parte.

After some twenty witnesses had been examined in this way, an attor-
ney employed by Mr. Wheeler succeeded in hunting down this secret
place of taking evidence; but even then, after finding the commis-
sioner, he was positively refused the right to cross-examine witnesses.

Worse than that, the record shows that Mr. Lowe's attorney (a nephew
of Mr. Lowe) wrote down the evidence himself, and wrote it falsely.

By such methods there have been produced 55 depositions which pur-
port to show that 55 men voted for Mr. Lowe.

Upon these illegal and fraudulently obtained and criminally con-
ducted proceedings the majority of the committee count 55 votes for
Mr. Lowe.

This box will be discussed more fully hereafter.

10TH.

At Lanier's box the evidence shows that it was impossible for any
fraud to have been practiced by any one in the interest of Mr. Wheeler.

Mr. Lowe's friend swears they could not have counted the ballots in
the shop where the election was held, and he swears that he " took charge
of the box," and carried it to the store of Deputy United States Marshal
Lanier, who was appointed to take charge of the election by Mr. Lowe's
friend Marshal Sloss.

LOWE VS. WHEELER. 103

The box remained locked up iii the side room of Mr. Lanier's store
for about an hour, and Mr. Lanier, who was a Republican, swears that
no one could possibly have had access to it while it was there.

The majority of the committee, however, reject this box, without a
request to that effect in the contestant's notice, and then, still without a
request, and without a particle of legal evidence, count for Mr. Lowe
128 votes, and give Mr. Wheeler none, although 132 votes were cast and
counted for him, and Mr. Lowe's own witness swears that some 30 votes
were cast for Mr. Wheeler.

We call attention to these things to show that the honorable gentle-
men who compose the majority of the committee have been imposed
upon by some one, as we feel they never would have made this report
had the facts been understood by them.

The majority of the committee violate all precedent in counting 16
votes for Mr. Lowe at Kinlock box.

There is no return from this box, and there is no way of learning,
from the proof, that there was any election held at said place.

llTH.

The majority of the committee receive and consider as good evidence
papers which are not depositions.

More than one hundred of these papers, which are called depositions,
do not show that the witnesses were sworn. One hundred and fifty are
without any pretense to a certificate of a commissioner, and several of
them have no legal signature. Yet upon such fugitive papers the ma-
jority of the committee conclude to deprive a fellow-member of his seat
in Congress.

The record shows that the vote, according to the official returns, was :

For Joseph Wheeler 12, 808

For Wm. M. Lowe 12, 765

Majority for Joseph Wheeler 43

Mr. Wheeler's election is contested on the following grounds :

1. The contestant claims that 525 votes were cast for him, which he
claims were illegally excluded from the canvass by the inspectors of
election in fifteen different precincts, as follows :

Big Creek 7

C'hickasaw 8

Courtland 65

Danville 42

Decatur '. 3

Elkmont , 56

Falkville 97

Florence 4

Green Hill 22

Himtsville 61

Rush's 2

Madison 33

Mrridianville (No. 1) 2

Owen's Cross Roads 31

Poplar Ridge 41

Kussellville 51

525

2. Although the contestant does not demand it in his notice of con-
test, the majority of the committee reject, for his benefit, the returns
of Lanier precinct, in Madison County, which gave the contestant 57

104 DIGEST OF ELECTION CASES.

and the contestee 142 votes, and they give him 128 votes alleged to
have been proven by the depositions of witnesses, the result being to
deprive the contestee of 142 votes and to add 71 to the votes of the
contestant.

3. Although the contestant does not demand it in his notice of con-
test, the majority of the committee reject, for his beuetit, the returns
of Meridiauville precinct 2so. 2, which gave the contestant 47 and the
contestee 57 votes, and the majority of the committee give him 55
votes, alleged to have been proven by the testimony of witnesses, the
result being to add 8 to the contestant's votes and to deprive the con-
testee of 57.

4. Although the contestant does not demand it in his notice of con-
test, the majority of the committee gave him an addition of 10 to the
votes officially returned for him from the precinct of Cave Spring.

5. Although the allegation in the notice of contest does not justify it r
and although Mr. Lowe's proof on the point is secondary, and conflict-
ing, and contradictory, and although the proof regarding Mr. Wheeler's
votes at that poll are precisely the same as the proof regarding 31 r.
Lowe's votes, the majority of the committee count 76 votes for Mr. Lowe
at Flint precinct, and they refuse to count any votes for Mr. Wheeler.

The returned vote being changed in accordance with these claims, the
following is presented as a statement of the result:

Wm. M. Lowe 13, 45(>

Joseph Wheeler 12, (509

Majority for Wm. M. Lowe 847

The contestee denies most of contestant's allegations, and on the other
hand insists, in his answer to. the notice of contest, that the following
votes were illegally cast for the contestant, and demands their rejection
by the House of Bepresentatives:

1. Ballots illegal in form, including 1,294 ballots which are printed so as to be

read as plainly on the back as on the face 3, 028

2. Votes of unregistered persons, exclusive of those who voted at Courtland 1,200
3- Votes of non-residents 81

4. Votes of convicts 20

5. Votes of minors 16

Kinlock box 16

Coiutland box No. 2 (contestant's majority) 308

4,060

The contestee, accordingly, gives the following as a correct statement
of the result :

Joseph Wheeler 12, 808

Wm. M. Lowe 8,096

Majority for Joseph Wheeler 4,712

Mr. Wheeler also claims that, the Greenbrier box which gave Mr.
Lowe a majority of 223, and Pleasant Site box which gave Mr. Lowe 13
majority, and Frankfort which gave Mr. Lowe a majority of 17, should
not be counted. Mr. Wheeler alleges that the polls were under the
control of Mr. Lowe's friends, and that they were not kept open as re-
quired by law, causing loss of many votes to contestee; and also, that
at Greenbrier there was illegal voting for Mr. Lowe, and that the in-
spectors destroyed the poll-lists, and by other means violated the law

LOWE VS. WHEELER. 105

so as to deprive Mr. Wheeler of the means of proving the illegal votes
which were cast at that box.

Mr. Wheeler also alleges that the entire vote of Madison County r
which gave Mr. Lowe 676 majority, was illegally returned, and should
be rejected. Mr. Wheeler also alleges that Triana box, which gave Mr.
Lowe 252 majority, was not kept open as required bylaw, whereby con-
testee lost many votes.

The several claims of the respective parties will be considered in their
order.

II.

BALLOTS ILLEGAL IN FORM.

The contestant's claim that 525 ballots offered for him in a form de-
scribed were illegally excluded by the inspectors of election is met by
the contestee as follows :

(1.) The contestee insists that ballots of the form described were il-
legal, and ought to have been excluded by the inspectors.

(2.) He denies that any such ballots were, in fact, rejected, and asserts
that the depositions by which the contestant attempts to prove their
rejection are inadmissible, because they were not certified by the officer
before whom they purport to have been taken, nor reduced to writing
in his presence.

(3.) He sets up a counter-claim, to the effect that 3,028 ballots can-
vassed for the contestant were illegal, because they contained the des-
ignations of eight offices unknown to the laws of Alabama, and that
of these 3,028 ballots, 1,294 were illegal, for the further reason that they
were so printed that their contents were distinctly visible on the outside
to the inspectors and bystanders when the ballots were folded.

(1.) In support of his position that the ballots in controversy were il-
legal and ought to have been rejected the coutestee urges the following;
considerations :

The ballots were in this form :

FOR ELECTORS FOR PRESIDENT AND VICE-PRESIDENT:
STATE AT LARGE.

JAMES M. PICKENS.
OLIVER S. BEERS.

DISTRICT ELECTORS.

let District C. C. McCALL.

2d District J. B. TOWNSEND.

3d District A. B. GRIFFIN.

4th District HILLIARD M. JUDGE.

5th District THEODORE NUNN.

6th District J. B. SHIELDS.

7th District H. R. McCOY.

8th District JAMES H. COWAN.

FOR CONGRESS EIGHTH DISTRICT.
WILLIAM M. LOWE.

106 DIGEST OF ELECTION CASES.

The following ballot is in the form prescribed by the laws of Alabama.
It is similar in form to 12,808 ballots cast for the contestee :

For Electors for President

and Vice- President of

the United States.

GEORGE TURNER.

WILLARD WARNER.

LUTHER R. SMITH.

CHARLES W. BUCKLEY.

JOHN J. MARTIN.
BENJAMIN S. TURNER.
DANIEL P. BOOTH.
WINFIELD S. BIRD.

NICHOLAS s. MCAFEE.

JAMES S. CLARK.

For Representative in
Congress from the Eighth
Congressional District :

JOSEPH WHEELER.

Two of the offices designated on the illegal ballots are offices of Presi-
dential electors for the State at large, and two of the candidates named
are candidates for those offices. Eight of the offices designated are
offices of district electors of President and Vice-President, for eight
different districts in the State j and eight of the candidates named are
candidates for those offices.

The Alabama statute declares that

The ballot must be a plain piece of white paper, without any figures, marks, rulings,
characters, or embellishments thereon, not less than two nor more than two and one-
half inches wide, and not less than five nor more than seven inches long, on which
must be written or printed, or partly written and partly printed, only the names oj the
persona for whom the elector intends to A'ote, and must designate the office for which
each person so named is intended by him to be chosen, and any ballot otherwise than
described i* illegal and must be rejected.

This law prescribes four distinct requirements for the ballot :

(1.) It must be a plain piece of white paper, without any figures,
marks, rulings, characters, or embellishments thereon.

(2.) It must be not less than 2 nor more than 2 inches wide, and not
less than 5 nor more than 7 inches long.

(3.) It must contain only the names of the persons voted for and the
designations of the offices for which they are "intended to be chosen."

(4.) The names of the candidates and the designations of the offices
are to be written or printed, or partly written and partly printed.

If the legislature had merely prescribed the form of the ballot, without
declaring those cast in an y other form to be illegal, or commanding their
rejection, then, of course, it would be a question whether the require-
ment of the statute, that the ballot must contain only the names of
the candidates and the designations of the offices, is directory or man-
datory. And to the decision of that question such authorities as Me-

LOWE VS. WHEELER. 107

Kenzie r. Braxton, Smith, 19, would be applicable. But when the law
makes a ballot not cast in a prescribed form illegal and requires its re-
jection, there is no place for the question whether the statute is manda-
tory or directory. The ballot which is not in the prescribed form is
illegal, and must be rejected, because the law in terms declares it to be
illegal and commands its rejection.

The legislature of Alabama, exercising a power expressly conferred
by the Federal Constitution, had prescribed the mode of choosing Presi-
dential electors as follows :

On the day prescribed by this code there are to be elected, by general ticket, a num-
ber of electors for President and Vice-President of the United States equal to the
number of Senators and Representatives in Congress to which this State is entitled at
the time of such election.

Under this statutory provision there could be no choice of " district
elector " for the " first district," or " second district," or for either of the
other eight districts designated. The ballots in question each contained
the designations of eight different offices unknown to the law ; that is
to say, the offices of district electors for the eight districts of the State.
They were deposited in the ballot-boxes in violation of the requirement
of the statute that the ballot shall contain only the names of the can-
didates and the designations of the offices.

It is submitted, as an incontrovertible proposition, that this statutory
provision, for the choice of Presidential electors, makes the office of each
and every Presidential elector an office for the State at large, and that
the office of district elector is unknown to the law of Alabama. It is
submitted, as a second incontrovertible proposition, that the ballots in
question were ballots for two electors from the State at large, and for
eight district electors, one for each of eight districts. If these two propo-
sitions are correct, so also must be the conclusion that eight of the offices
designated on these ballots are unknown to the laws of the State, and
that the designation of these eight offices was a violation of that re-
quirement whi :h excludes from the face of the ballot everything except
the names of the candidates and the designation of the offices voted for,
and that, therefore, under the law, it was the duty of the inspectors to
reject these ballots.

This would be all different in the State of Massachusetts. For the
law of Massachusetts contains a provision unknown to the law of Ala-
bama. It is that

The names of all the electors to be chosen shall be written on each ballot; and each
ballot shall contain the name of at least one inhabitant of each Congressional district
into which the commonwealth shall be then divided, and shall designate the Cougres-
<iuiial district to which he belongs. (Pub. Stat. Mass., 1882, p. 90.)

The effect of this statutory enactment is that two of the Massachu
vsetts electors are chosen from the State at large, and the others, although
chosen by the people of the whole State, are district electors, chosen not
from the State at large, but from the several districts. In Massachu -
set ts the ballots now under consideration would be in exact conformity
with the requirements of the law; and a Massachusetts statute, com-
manding the rejection of ballots containing designations of offices un-
known to the law, would not affect ballots like those alleged to have
been rejected in this case.

For precisely the same reasons, ballots like these would be legal in
the States of Iowa, Tennessee, Missouri, Virginia, and North Carolina.

If, then, the statutes of Massachusetts, Iowa, Tennessee, Missouri,
Virginia, and North Carolina commanded the rejection of all ballots
not fashioned in conformity with the requirements of law, they would

108 DIGEST OF 'ELECTION CASES.

not affect ballots like those alleged to have been rejected in the late
election in Alabama, because .such ballots would conform to the statu-
tory requirements of those States.

The laws of Illinois, Xew York, South Carolina, Michigan, and Wis-
consin, like tti at of Alabama, provide that the Presidential electors
shall be chosen by ''general ticket." The statutes of Mississippi and
Nebraska provide that they shall be chosen from the "State at large.' r
If the laws of these seven States provided, as do the laws of Alabama,
that all ballots containing anything beyond the names of the candidates
and the designations of the offices should be rejected, then ballots like
those alleged to have been rejected, in the case now under considera-
tion, would necessarily be rejected in those States. But no law, in
either of those seven States, requires the rejection of ballots for the
reason that they contain more than the names of the candidates and
the designations of the offices. It follows, therefore, that in these seven
States, as well as in the States of Massachusetts, Iowa, Tennessee. Mis-
souri, and Virginia, these rejected Alabama ballots would have been
good.

They would also have been good in all the other States of the Union
except Alabama. For in none of the other States is there any statute
requiring the Presidential electors to be chosen by general ticket or
from the State at large. In all the other States the statutes provide that
Presidential electors shall be chosen, but fail to determine whether they
are to be chosen wholly from the State at large, or partly from electoral
districts. They do not make illegal the offices of district electors, as does
the law of Alabama. The case of Alabama therefore stands upon stat-
utes peculiar to that State.

It is said that the objectionable matter on these ballots does not con-
stitute figures, marks, rulings, characters, or embellishments, in^ the
sense of the statute. Even if this be admitted for the sake of the a'rgu-
nieut, it does not meet the objection now under consideration, which
is not that they were fashioned in violation of the clause of the statute
prohibiting figures, marks, rulings, characters, and embellishments, but
that they presented a violation of that clause which provides that the
ballot shall contain only the names of the candidates and the designa-
tions of the offices.

But to ascertain whether these ballots did have distinguishing marks r
let us refer to the evidence of the witnesses whom the contestant intro-
duced, and by whom he claims to have proven the rejection of these
ballots.

Mr. Hopkins, a witness for the contestant, testifies (see bottom of
page 131 and top of page 132) that the ballots which he says were re-
jected could be identified from the outside when folded four times.

His evidence is as follows:

Q. When folded in four thicknesses, could you see at a distance of three feet that
that ticket had something on it besides the names of the persons voted for and the
offices for which they were to be chosen ? A. Yes, sir; I could.

Q. Please examine the ticket and see if it is the ticket that yon made an exhibit to
your deposition. A. Yes, sir; it is.

. Q. Please examine those three tickets folded, and say if they are not the kind of
tickets that were rejected, and say if you cannot identify them from the outside when
folded four times ? A. These tickets are similar to the tickets that were rejected for
being numbered, and I can designate them when the printing is folded inside and the
ticket folded in four thicknesses.

These ballots are in evidence, and it will be observed that they are of

the least objectionable class of Greenback ballots found in the record.

Ira G. Wood, a witness and supporter of Mr. Lowe, and an officer of

LOWE VS. WHEELER. 109

the election, testifies as follows regarding the ballots which he says
were rejected (see Kecord, page 304, near bottom):

Q. Your eyesight is a little defective and iiifirm without your glasses ? A. Yes, sir ;
I can rend large print : I do not do it, however, without my spectacles, but I can.

Q. Can you see the words first district on that ticket (handing witness a ticket) ? A.
Yets, .sir.

Q. Can you see the words first district on it ? A. Yes, sir.

Q. Can yon see the words first district on the back when folded with the printing
inside ? A. Well, I wouldn't know that unless my attention was called to it.

Q. Could you read it if yonr attention was called to it? A. I suppose I could if
my attention was called to it.

Q. Can you, when the ticket is open, read the words first district without your
gla>srs? A. Yes, sir.

Q. Wlien the ticket is closed now, with the printing inside, can you see t>y reading
backwards, when your attention is called to it, the words first district ; wouldn't you
be willing to swear there was a D ? A. Yes sir.

If feeble old men could identify the ballots, when folded, which Mr.
Lowe claims were rejected in the railroad towns, it is evident that it
would have been impossible for such ballots as Mr. Lowe's witnesses put
in evidence, and swear were used in Franklin County, to have escaped
the scrutiny of the party managers.

The contestee, in his answer, denied the allegation of the contestant
regarding the rejection of ballots, and the contestant has failed to prove
by legal evidence that any ballots were rejected by the inspectors. We
think that none of the evidence by which he attempts to prove these
facts is legal. The witnesses merely give their recollection on the sub-
ject. Many of them made out returns one or more days after the elec-
tion was over, and in many cases they admit that even these returns
were made out from hearsay, and many of them show by their evidence
that their entire knowledge on the subject is hearsay. For instance, on
page 62 of the contestant's brief, he claims that 4 Lowe votes were re-
jected at Florence ; but we think there is not a particle of proof to sus-
tain this. He quotes the evidence of Judge Harraway (p. 908), and
Judge Harraway states that he knows nothing personally about it.

On the same page of his brief he claims that 22 Lowe votes were
rejected at Green Hill. There is no legal evidence to sustain this. The
witness on whom Mr. Lowe relies (William H. Hill) testifies, near bot-
tom of page 1389, that he does not know that 22 ballots were rejected.
He admits that immediately after the election he made an affidavit be-
fore Commissioner Bone that 15 ballots were rejected at that box ; he
admits that he knows nothing about it except what a man told him;
there is no other proof regarding that box.

Again, Edward C. Lamb, page 150, testifies as follows :

Q. Did you count these 42 ballots yourself? A. No, sir.

Q. Then your knowledge is it not true that your knowledge of there being 42 is
uimply hearsay ? A. No, sir ; I seen on their tally sheets.

Q. And yet you swear that there were 42 votes rejected with Lowe's name on them,
without ever seeing them, and without ever counting them ? A. I seen them lying
aside there when they were recounted.

Q. Is it true that you saw them all in a bunch ? A. Yes, sir ; when they were
laying them down or counting them out.

Q. Is it true that you examined every ballot, and saw it have on it the name of
William M. Lowe f A. No, sir.

Such evidence as this proves nothing.

The law of Alabama (see Code, par. 288, printed page 1215 of the
record in this case) provides that all rejected ballots shall be rolled up
by the inspectors and labeled as rejected ballots, and that they shall
be sealed up together with the other ballots, and securely fastened up
in the box from which said ballots were taken when thev were counted.

110 DIGEST OF ELECTION CASES.

The answer of the coutestee distinctly alleged that where votes for
William M. Lowe were discarded, it was so stated in the returns made
by the inspectors. In no instance did the contestant put these returns
in evidence, or give any reason for not doing so. Nor did he put the
ballots which he claimed were rejected in evidence, nor does the record
show that he gave any reason for not doing so.

Furthermore, not one of the 49 depositions was in any way certified
by any commissioner.

None of the depositions have any certificate of any kind whatever.

It is provided in the Revised Statutes of the United States as fol-
lows:

SEC. 127. All officers taking testimony to be used in a contested-election case,
whether by deposition or otherwise, shall, when the taking of the same is completed,
and without unnecessary delay, certify and carefully seal and immediately forward
the same, by mail, addressed *to the Clerk of the House of ^Representatives of the
United States, Washington, D. C.

The notary who took the so-called depositions of the witnesses named
above, took, in all, the depositions of 177 witnesses, a part as testimony
in chief and a part as testimony in rebuttal. He certified none of the
177 depositions, except those of J. H. Bone, W. M. Lowe, R. H. Lowe,
and J. H. Sloss. His only certificate is that which (itself irregular and
insufficient) is affixed to the deposition of W. M. Lowe, the contestant^
on page 1263, wherein he certifies (irregularly) the depositions taken
under u the notice to eontestee." Under that notice, which is printed
on page 1264, only the depositions of J. H. Bone, W. M. Lowe, R. H.
Lowe, and J. H. Sloss were taken.

The only certificates in the entire record which refer to the contest-
ant's testimony are as follows : Page 205, a certificate of Commissioner
Thomas C. Barclay, reciting that it is the certificate to the deposition
of James Jones, John Kibble, Alex. Jamar, and George Ragland, taken
at Lanier's. It is dated January 26, 1881.

Page 293, the certificate of Commissioner A. C. Bentley, who certi-
fies to the deposition of 55 witnesses, w r hose names he gives, and none
of which are the names of any of these 49 witnesses. It is dated April
1, 1881.

On page 338 we find certificate of Commissioner Archibald W. Brooks,
which mentions eleven witnesses, none of whom are included in the 49
referred to. It is dated May 12, 1881.

On page 402 is the certificate of Commissioner Amos R. Moody, which
is attached to the deposition of seven (7) witnesses, and it certifies to
the depositions thereto attached, but none of the names are those of
any of the 49 witnesses referred to. It is dated March 15, 1881.

On page 460 is the certificate of Commissioner E. P. Shackelford, at-
tached to the deposition of W. W. Simmons, and on page 462 is the cer-
tificate of same commissioner, attached to deposition of Alex. Hefiiu.
Both are dated March 11, 1881.

On page 1263 we find a certificate of Commissioner Robert W. Figg.
It certifies to the depositions of the witnesses named in the notice to
the coutestee.

The certificate is dated March 16, 1881, and is attached to the deposi-
tion of William M. Lowe, and the notice also attached and referred to in
the certificate contains only the names of James H. Bone, William M.
Lowe, Richard H. Lowe, and Joseph H. Sloss. (See page 1264.)

The next certificate is that of Commissioner William T. Farley, on
page 1361. It is dated March 28, 1881, and purports to be, and is, at-

LOWE VS. WHEELER. Ill

tacbed to the deposition of twelve witnesses, all of whom are mentioned
in the certificate.

The last certificate is that of Commissioner Eobert Andrews, on page
1399. It purports to be a certificate to nine witnesses, all of whom are
named in the certificate.

There is no other certificate in the record except those attached to
the depositions of the contestee. -4

The only proof of the rejection of these votes is to be found in what
are claimed to be the depositions of T. W. White, 37 ; W. L. Goodwin,.
42 ; N. Davis, 47; T. B. Hopkins, 130; L. Bibb, 137; G. W. Maples,140;
W. L. Christian, 143; E. J. Wright, 148 ; E. C. Lamb, 150; N. Whittaker,,
153 ; W. G. Smith, 370 ; A. Gaudy, 373 ; H. A. Skeggs, 376; J. Y.Fergu-
son, 382 ; W. A. Piukerton, 339 ; A. G. Smith, 343 ; A. C. Witty, 346 1
W. McCtilley, 349 ; J. E. Seal, 394 ; D. N. Fike, 397 ; T. C. Walker, 404 j
W. J. Gibson, 490 ; W. W. Simmons, 496.

The contestee objected to these depositions at the commencement of
the present session of Congress on the ground that they were not certi-
fied according to law, and has persisted in that objection until the pres-
ent time.

Again, none of these alleged depositions were reduced to writing in
the presence of the notary.

The provision of the Revised Statutes of the United States is:

SEC. 122. 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 att'ending, and to be duly at-
tested by the witnesses respectively.

The corresponding provision of the judiciary act of 1789 is in the fol-
lowing words:

The provision that the deposition must be reduced to writing in the
presence of the officer is common to the contested-election law and the
judiciary act of 1789. It is obvious, therefore, that decisions of the
Federal courts on the provision of the judiciary act for the writing out
of the deposition will be authorities in cases which may come before
this committee under the corresponding provision of the statute relat-
ing to contested elections.

In Bell t*. Morrison, 1 Peters, 351, Judge Story, delivering the opin-
ion of the court, held that under section oO of the judiciary act a depo-
sition is not admissible if it is not shown that the deposition was re-
duced to writing in presence of the magistrate.

The same doctrine is maintained by the following authorities: Ed-
moudsou v. Barret, 2 Cranch C. C., 228; Pettibone v. Derringer, 4 Wash. r
215; Eayner v. Haynes, Hempst., 689; Cook v. Burnley, 11 Wall., 659;
Baylis v. Cochran, 2 Johns. (S. T.), 416 ; Summers v. McKiin, 12 S.& E.,
404; United States v. Smith, 4 Day, 121; Eailroad Co. v. Drew, 3 Woods
C. Ct., 692; Beale v. Thompson, 8 Cranch, 70; Shaukriker v. Beading,
4 McL., 240; United States v. Price, 2 Wash. C. Ct., 356; Hunt v. Lar-
pin, 21 Iowa, 484 ; Williams i\ Chadbourne, 6 Cal., 559 ; Stone v. Still-
well, 23 Ark., 444.

This objection applies to the 49 depositions which it is claimed were
taken in Huutsville before E. W. Figg, esq., during the forty days
allowed bylaw for contestant >to take testimony -in-chief ; and to 110
depositions which purport to have been taken at Lauier's during the
period allowed by law for contestant to take evidence in rebuttal.

112 DIGEST OF ELECTION CASES,

The record does not show that any of these so-called depositions were
reduced to writing in the presence of the officer before whom they pur-
port to have been taken.

On the contrary, the proof shows this was not done. The evidence,
page 1116, shows that these so-called depositions were taken down in
short-hand, and that they were afterwards written out in long-hand
in the absence of the officer, and page 1125 shows that important ex-
hibits were attached to the depositions which the witnesses did not see.

The motions which are supported by affidavits should be sustained,
and the 49 alleged depositions mentioned in said motions should be
suppressed ; the motion to suppress 110 alleged depositions taken at
Lanier's should be also sustained, and those depositions should be sup-
pressed.

The ' ; Views of Mr. Ranney " contain the following statement :

The course pursued in this respect was manifestly irregular. But this becomes now
immaterial and unimportant. The various motions made by the respective parties,
as to striking out evidence have been considered and denied, either as immaterial
or not well grounded.

If this merely means that the decision of the case on its merits by
the Committee on Elections involves a decision of these questions of
evidence, and that therefore the duties of the committee on the subject
are ended, the statement is accurate enough. But if the meaning is
either that the committee has formally acted on these questions of evi-
dence, or that action by the committee, however had, concludes the
House of Representatives, so that these questions " have become iinine-
teral and unimportant" in the House, the statement is wholly errone-
ous. The House is the judge on this point, as on all others involved in
the case, and the materiality and importance of these questions in the
House is not affected by the action of the committee.

(3.) We now proceed to the consideration of the counter-claim set up
by the contestee, to the effect that 1,294 ballots cast for the contestant
were illegal, not only because they contained the designations of eight
offices unknown to the law but also for the further reason that they
were printed on such transparent paper, and with such ink and type,
that the contents were visible to the inspectors and bystanders on the
outside of the folded ballots.

The statutory provision, as we have seen, is that unless the ballot is
" without any figures, marks, rulings, characters, or embellishments
thereon" it must be rejected. Whatever else may or may not be em-
braced in the meaning of the term "marks," as here used, that term
evidently includes any device or combination of devices which will en-
able either the inspectors, when they receive a ballot and jlass it from
liand to hand for deposit in the ballot-box, or the near by-standers, to
distinguish it from other ballots. In this sense the term " marks" may
include several things or elements. It may apply to a star, cross, line,
or circle, or to any other printed form, or to a series or number of forms,
placed on the exterior of the ballot, so as to enable the inspectors or by-
standers to distinguish it from others. The ballot would in that case
be marked. It would not be, in the sense of the statute, " without
marks." It would fall within the prohibitions of the statute.

But if by the use of such paper and of such type aud ink on the face
of the ballot as to show the face or a part of it through the folded bal-
lot the inspectors and by-standers are enabled to distinguish it from
others, then also the ballot is marked, in the sense of the statute,
whether the words themselves are or are not legible on the outside of
the folded ballot. It is enough if they are clearly visible, so that the
ballot may be distinguished from ballots of a different kind.

LOWE VS. WHEELER. 113

The following are exact representatives of 1,294 ballots which are
proved to have been cast for the contestant and counted for him, and
are to be deducted from his vote. These ballots, when folded, are
readily distinguishable by the inspectors and by-standers, not only from
the ordinary legal ballot, the face of which is not visible through the
paper on the reverse side, but also from each other :

FOR ELECTORS FOR PRESIDENT AND VICE
PRESIDENT :

STATE AT LARGE.

JAMES M.- PICKENS.
OLIVER S. BEERS.

DISTRICT ELECTORS.

1st District C. C ; McCALL.

2d District J. B. TOWNSEND.

3d District A. B. GRIFFIN.

4th District MILLIARD M. JUDGE.

5th District THEODORE NUNN.

6th District J. B. SHIELDS.

7th District H. R. McCOY.

8th DistrictJAMES H. COWAN.

FOR CONGRESS EIGHTH DISTRICT.

WILLIAM M. LOWE.

FOR ELECTORS FOR PRESIDENT AND "VICE
PRESIDENT :

STATE AT LARGE.

W. L. BRAGG.
E. A. O'NEAL.

DISTRICT ELECTORS.

FOR CONGRESS EIGHTH DISTRICT.

William M. Lowe.

H. Mis. 35 8

114 DIGEST OF ELECTION CASES.

FOR ELECTORS EOR PRESIDENT AND VICE-
PRESIDENT :

STATE AT LARGE.

W. L. BRAGG.
E. A. O'NEAL.

DISTRICT ELECTORS.

FOR CONGRESS EIGHTH DISTRICT.

William M. Lowe,

These transparent ballots were used in mountain counties and pre-
cincts, where the law was not well understood, and where there was
the least risk of detection and exposure of this cunning device for de-
stroying the secrecy of the ballot. The following are the citations of
testimony which show that 1,294 ballots of this kind were counted for
the contestant, at thirty-four different precincts in the district :

LOWE VS. WHEELER.

115

Pago of record.

Name of witness.

Name of precinct or box.

a-sa

If .3

s |i
s jS

2s *

Ills
to

399

400
401
401
402
740
742
746
749
751
752
755
757
759
763
767
775
807
809
868
1002
1004
1006
1017
1018
1024
1113
1130
1132
1160

Waco .

20
4
38

C M Taylor .

W M Smith

P Barker

...... do

Pleasant Site....

60
71
20-
157
85
56
35
33
127
44
38
74
38
11
1
80
30
36
11
50

A. J. Barker

Bellefont

J. F. Skeltou

Hunt's Store

Robt. Skelton

Scottsboro' .-

F. M. Chandler

Berry's Store

N H Bridges

Wm C Hitch

Kirby'B Mills

J. H. Young

Larkinsville
Nashville .... ..........

J M Reid

R. M. Seav

Hawk's Spring

J. J. Overdeer...

Kash's

J. T. Gilbreath

Davis' Spring

J H Hundley

W. K. Rainey

Slough's

F M Reeves

Rock Creek * ...... .

W. C McKenney

Wheeler's

W. M. Turner

Cherokee . .. ..

Saint's

W. C. Summers

Fox Delony

Leighton ......

90
19
10

G. G. Wiggins

Hillsboro'

O. H. Reid

Brickville

J. M. Gray

Red Bank

R. A. Neelv

1162
1166
1203
1348
1352

M. S. Xiindsey

Oakville

33
154
22
36

W H. Bridges ...

G. W. Ponder

Moult on

O. H. P. Williams

Cherokee.

W. M. Turner

1,294

It is claimed that these ballots ought to be counted for Representa-
tive in Congress, if for no other candidate. This would be true, if the
statutory provision had been merely that such names of candidates and
designations of offices as should be placed on the ballots in violation of
the law should be rejected in the canvass. 'But such is not the pro-
vision of the statute. The statutory provision is that if the ballots are
not in the form prescribed, the ballots themselves shall be rejected.

It seems to us clear that these 1,294 ballots, which not only contained
the designations of eight offices unknown to the law of Alabama, but
were also marked ballots, and, for that reason, peremptorily excluded by
a mandatory law of that State, were illegally counted for Mr. Lowe, and
are to be deducted from his vote.

The question here presented is a new question. It was not considered
by the Committee on Elections in the Mississippi case of Lynch v. Chal-
mers. The differences between the statutory provisions of Mississippi
and Alabama, and between the ballots in the two cases, are such that a
decision in one of the cases will not, necessarily, furnish a precedent for
the other. The Mississippi statute is in the following words :

All ballots shall be written or printed in black ink, with a space not less than one-
fifth of an inch between each name, on plain, white printing news paper, not more
than two and oue-half nor less than two and one-fourth inches wide, without any de-
vice or mark by which one ticket may be known or designated from another, except the words
at the head of th ticket; but this shall not prohibit the erasure, correction, or insertion
of any name by pencil-mark or ink upon the face of the ballot; and a ticket different
from that herein prescribed shall not be received or counted.

116 DIGEST OF ELECTION CASES.

As we have seen, tfre Alabama provision is that

The ballot must be a plain piece of white paper, without auy figures, marks, rul-
iugs, characters, or embellishments thereon, not less than two nor more than two and
one-half inches wide, and not less than five nor more than seven inches long, on which
must be written or printed, or partly written and partly printed, on ly thenames of the persona
for whom the elector intends to vote, and must designate the office for which each person so
named is intended by him to be chosen ; and any ballot otherwise than described is illegal and
must be rejected.

The provisions of the Mississippi law applicable to the case of Lynch
v. Chalmers, are : (1) That the ballot shall be without any device or
mark by which one ticket may be known or distinguished from another,
except the words at the head of the ticket, and (2) that a ticket different
from that prescribed shall not be received or counted. The provisions
of the Alabama statute applicable to the case now on trial, are: (1) That
the ballot must be without marks, and must contain only the names of
the persons for whom the elector intends to vote, and the designations
of the offices, and (2) that any ballot otherwise than as described is il-
legal and must be rejected. In the Mississippi case the grounds of ob-
jection to the ballots were that certain printer's dashes separated differ-
ent headings of the ticket. In this case the grounds of objection are
that the ballots contained the designations of eight offices unknown to
the law, and that they were so marked, by the use of peculiar paper, ink,
and type, as to be readily distinguished from other ballots, even when
folded. The differences between the two cases are too palpable to re-
quire or justify any comment.

What we have said is sufficient to show that these ballots are illegal ;
but there is other evidence in this case which makes their rejection still
more imperative.

THE EVIDENCE SHOWS THAT MR. LOWE'S SUPPORTERS USED THE
MARKED BALLOTS, TOGETHER WITH VIOLENCE AND TERRORISM, TO
DESTROY SECRET VOTING.

The evidence shows clearly that the using of these ballots in the pre-
cincts where it is claimed they were rejected was for the unlawful pur-
pose of preventing a secret ballot.

It is evident that with these ballots secrecy was impossible, and that
such ballots could be identified in the hands of the voters.

It is certain that when voters are abused, terrorized, and ostracized
for not voting as their leaders dictate, the weaker classes will hesitate
before going to the polls with ballots different from those ordered by
their leaders.

It was distinctly charged in the answer, and proved by over fifty wit-
nesses, that the supporters of Mr. Lowe had unlawfully maintained a
state of terrorism and alarm among the colored persons by threats of
harm to their persons and property. (See Eecord, pages 506, 893, 894,
895, 896, 898, 900, 902, 904, 959, 960, 961, 962, 963, 964, 966, 967, 969, 970,
999, 1000, 1001, 1002, 1020, 1021, 1022, 1023, 1024, 1025, 1066, 1068, J070,
1072, 1075, 1076, 1079, 1081, 1082, 1085, 1089, 1091, 1093, 1095, 1098, 1102,
1109, 1111.)

This uncontradicted testimony of more than fifty witnesses, including
men of all parties and of both colors, shows that by threats of bodily
harm, by ostracism, and by fear and intimidation, Greenback leaders
have absolutely destroyed freedom of election among the weaker class
of colored persons in the eighth district of Alabama.

A colored man, page 1079, swears that if colored men had been left to
their own choice nearly all would have voted the Garfield and Wheeler
ticket. They would have so voted had it not been for the threats of

LOWE VS. WHEELER. 117

the Greenback leaders, and this same character of evidence is found on
pages 1067, 1068, 1071, 1073 J, 1075f, 10S1, 10S3, 1085 J, 1089& 1092^
109G 1098, 1102|, 1110, 1112.

It is also in proof (see bottom of page 1095) that two colored men,
Peter Walker and John Bell, attempted to become candidates for the
legislature upon the Republican ticket, and these Greenback leaders
drove them from the town and threatened to kill them.

Also, on this subject, see pages 1066, 1070, 1073, 1075, 1079, 1085 J,
10S7, 1089, 10913, 1092, 1096, 1098, 1102, 1109f .

We might stop with the above, but in passing we will call the atten-
tion to the evidence of two of Mr. Lowe's witnesses, Wade Blanken-
ship and AVilliam Wallace.

These men were party managers for Mr. Lowe. They testified that
they required every man to carry his ballot at least a foot and a half
from his body. (See bottom of page 224.)

Wallace says, page 234| :

"I told it to every man. Now, I said, you hold your ticket so 1 can see it."

Wallace also testified, page 223, as follows :

Q. You thought it important to examine their wrist and see that there was noth-
ing up their sleeves ? A. Yes, sir ; I did.

Q. And you examined each one in this way? A. Yes, sir. I examined every one
that voted the ticket.

Q. You examined each one of the 156 colored men? A. Yes, sir; I d'id.

Q. You examined their hands and sleeves to see that there could be no foul play?
A. Well, I did not feel of their arms and sleeves, but I examined their wrists close
before I gave them their ticket.

We think the evidence shows beyond question that the policy of the
Greenback party was to prevent a secret ballot. Mr. Lowe's witnesses,
supporters, and managers swear they examined the wrists of voters,
and made them hold the ballot at least a foot and a half from the body
to prevent the possibility of their escaping the surveillance of party
managers.

This was the plan adopted with colored men, but in localities where
possibly objections might be urged to so close inspection of undercloth-
ing Mr. Lowe's managers adopted the plan of having the ballots marked
so that they could without question identify the ballot in the hands of
the voter.

We have examined the ballots, and cannot resist the conclusion that
these ballots were issued to enable party managers to destroy the free-
dom and purity of the election, and to prevent secrecy of the ballot, and to
place the voter under improper restraint or influence in casting his ballot.

More than a year prior to November 2, 1880, this law had been con-
strued by an eminent judge of the State of Alabama. His decision was
as follows :

Transcript.

THE STATE OF ALABAMA,

Cullman County :

Before Hon. Louis Wyeth, judge of the fifth judicial court.

CHARLES PLATO )

vs. > Con test of election.

JULIUS DAMUS. S

In this case Charles Plato contests the election of Julius Damus to the office of
mayor of the town of Culhnan, in the county of Cullman, claiming to have been elected
to that office himself by a majority of the votes cast at the election held on the first
Monday in April, 1879.

118 DIGEST OF ELECTION CASES.

The respondent claims to hold the office under the certificate of election issued by
the proper officers under the provisions of the " act of assembly to establish a new
charter for the town of Cullman." (Pamphlet Laws of 1879, p. 304, section 9.)

On examining and counting the votes it appears that fifty-four of them were cast
for the contestant and twenty-seven for the respondent ; of these fifty-four votes given
for the contestant fifty -two had printed on them, at the top of the ballot, the words
"Corporation Ticket," and of the twenty -seven votes cast for respondent three had in
like manner printed thereon the same words, and the question for me to decide is
whether or not those words rendered the ticket on which they were printed illegal
ballots, and such as must be rejected.

The act approved February 12, 1879, Pamphlet Laws, pp. 72, 73, requires that the
ballot must be a plain piece of white paper without any figures, marks, rulings,
characters, or embellishments thereon, * * * on which must be written or printed
* * * only the names of the persons for whom the elector intends to vote, and must
designate the office for which each person so named is intended by him to be chosen,
and any ballot otherwise than described is illegal, and must be rejected.

The law under which the election now being considered was held, in section 4,
Pamphlet Laws, 1879, p. 305, declares "that the election provided for in this charter
shall be regulated by the general State election law.' 1

The judicial officer of the State has nothing to do with the propriety of a statute.
If not void by reason of a constitutional inhibition, the judicial duty is limited to their
construction and enforcement.

These ballots had more than only the names of the persons for whom the elector
intends to vote, or the designation of the office, and must be rejected because illegal.
Such is the mandate of law, and so I must declare it.

It is considered, adjudged, and ordered that the election of Julius Damus as mayor
of the town of Cullman, in the county of Cullman, be confirmed, and that the contest-
ant pay the costs of this court.

LOUIS WYETH,

Judge, $'C.

JUXE 9, 1879.

THE STATE OF ALABAMA,

Cullman County :

I, Julius Damus, clerk of the circuit court of said county, hereby certify that the
foregoing is a full and complete transcript of the decision of Hon. Louis Wyeth, judge
of the fifth judicial circuit, from the records of said court, in a cause decided by said
judge, wherein Charles Plato was contestant and Julius Damus respondent.

And I further certify that the circuit courts of Alabama are courts of unlimited and
appellate jurisdiction, and are the highest courts of the State of Alabama except the
supreme court.

Given under my hand and seal of office this third day of January, 1882.

[SEAL STAMP.] JULIUS DAMUS,

Cleric Circuit Court of Cullman County, Alabama.

The numerous authorities which the contestee cites in pages 14 to 85
of his brief, conclusively show that Congress and the courts and all law-
' writers have uniformly held that, under such a law as that of Alabama,
ballots like those now under consideration are illegal.

1st. The law of Mississippi provides that all ballots shall be * * *
" without any device or mark by which one ticket may be known or dis-
tinguished from another."

This leaves room for debate as to whether the marks on the ballots
were marks by which one ticket may be known or distinguished from
another.

The Alabama law provides that the ballot shall have " only the names
of the persons for whom the elector intends to vote and the designations of
the office ; n therefore this law does not give latitude for debate on this
question.

The Alabama law and Pennsylvania law (see page 21 of contestee's
brief) stand alone in this, that they alone prohibit anything being on the
ballots but the names of candidates and designations of the offices.

In the report of the case of Lynch v. Chalmers the committee say, on
page 11 :

It need, however, hardly be added that a line of carefully considered cases in the

LOWE VS. WHEELER. 119

States, in which such courts have undouhted jurisdiction, so far as they would apply
in principle, would go a long way towards settling a disputed point of construction
in any State election law. In fact it may be said that it would probably be the duty
of Congress to follow the settled doctrine thus established.

On page 10 :

Where decisions have been made for a sufficient length of time by State tribunals,
construing election laws, so that it may be presumed that the people of the State
knew what such interpretations were, would furnish another good reason why Con-
gress should adopt them iu Congressional election cases.

And on page liJ :

Had the opinion been rendered before the election of 1880, or become one of the
settled laws of Mississippi, we do not say but that it would have such weight with
us that, though we niigh^ disagree with it in logic, we might feel compelled to fol-
low it.

Now, certainly, the facts in this case bring it within the principles
here expressed.

The decision of Judge Wyeth was rendered June 9, 1879, seventeen
months before the election of November 2, 1880.

1st. It was carefully considered.

2d. The court had undoubted jurisdiction.

3d. It had been made for a sufficient length of time ; and above and
beyond this, to use the language of Mr. Justice Curtis, 16 How., 279-
87, quoted page 11 of Lynch report, it was " needful to the ascertainment
of the right or title in question between the parties*

The committee, in Lynch v. Chalmers, say:

What we have here remarked does not, of course, apply to the marks or devices
ordinarily used on tickets, such as spread eagles, portraits, and the like; those would
be considered marks and devices of themselves, and not necessary in the ordinary
mechanical art of printing. The use of the latter would be considered a violation of
the statute in any aspect of the case, while the use of the former seems to us, in any
view of the law, ought to be restricted to an intentional or manifest misuse.

We submit that this reasoning makes the Greenback ballots clearly
obnoxious to the statute of Alabama.

The act amending section 274 is a remedial act. Sedgwick, page 309,
says :

The words of a remedial statute are to be construed largely and beneficially, so as
to suppress the mischief and advance the remedy. It is by no means unusual in con-
struing a remedial statute, it has been said, to extend the enacting words beyond
their natural import and effect, in order to include cases within the same mischiefs.

Remedial statutes are liberally expounded in advancement of the object of the leg-
islature. (Blakeney v. Blakeney, 6 Port., 109.)

A remedial statute must be construed largely and beneficially, so as to suppress the
mischief and advance the remedy. (Sprowl v. Lawrence, 33 Ala., 674.)

Let us now see what was sought to be remedied by the amendment
to section 274 of the code, approved February 12, 1879.

It is shown by the evidence, p. 1237 of the record, that at elections
prior to November 2, 1880, the Democrats used ballots substantially in
form to the exhibits above ; that is, the exhibits on pages 1229, 1230,
1231, 1232, 1233, 1234, 1235, 1236, which have the words :

STATE AT LARGE.

District electors.
1st District
2d District
3d District
4th District
5th District
6th District
7th District
8th District

120 DIGEST OF ELECTION CASES.

And one of which, page 1234, is almost precisely like the ballots
which are rejected.

The evidence shows that at previous elections ballots were used sub-
stantially like the Weaver and Lowe and Hancock and Lowe ballots, and
that the remedy sought was to prevent the use of the very ballots which
the Greenback party insisted upon using.

The report of the majority even admits the correctness of our position
on this subject.

We are to bear in mind these facts :

1st. The election preceding and nearest to November 2, 1880, when
such ballots were used, or could by any possibility have been used, was
the election of November, 1876.

2d. The first legislature of Alabama which was elected after the Xo-
vember Presidential election of 1876 proceeded to and did amend sec-
tion 274 of the code, and did prohibit by the law they enacted the use
of the very ballots which the contestant swears were used in November,
1876, and preceding elections.

This shows what was to be remedied.

We are also to remember

3d. That Judge Wyeth construed the h\w on June 9, 1879, just as we
construe it.

4th. That the contestant swears that the August, 1880, canvass was
made mainly by attacking this law.

5th. That with all this before them, he and his party managers
defied the law they had denounced, and printed ballots and placed in
voters' hands ballots which were prohibited by the law of the State.

6th. That nearly 100 witnesses in this case testify that the Greenback
party compelled men to vote their ticket by threats and terrorism,
and that 40 witnesses (including men of both colors and all parties)
swear that but for this system of terrorism exercised by the Greenback
leaders at least half of the people who voted for contestant would have
voted with the party which supported the contestee.

Considering all these things together, we see how necessary it was for
contestant to have a ballot which could be distinguished by his party
leaders, in order to keep the weaker classes in line and prevent them
from secretly voting as they desired.

III.

LANIER'S PRECINCT, MADISON COUNTY.

The contestant, in his summary of the result of the election, rejects
the official returns of Lanier's precinct, in Madison County, but at the
same time counts for himself 128 votes, which he says he has proven by
the depositions of witnesses. There would be no warrant of law for
counting these 128 votes for the contestant, even if the fact were, as it
is not, that he had successfully assailed the integrity of the returns,
and had also proved by witnesses that those 128 votes were cast for
him. For the law commands that the contestant shall, in his notice of
contest, specify particularly the grounds on which he relies. But the
notice of contest contains no allusion to any claim of these 128 votes.
In truth the notice of contest does not clearly advise the contestee of
any purpose on the part of the contestant to demand even the rejec-
tion of the Lanier returns. It embraces a charge framed in these
words : "That there was fraud and ballot-box stuffing, or a false count,
and the substitution of Wheeler boxes for Lowe ballots," at this pre-

LOWE VS. WHEELER. 121

cinct. It is a charge that one thing or another thing was done. That
is no charge known tb the law. Having made this alternative and
therefore furtile charge, he fails to demand a rejection, or any other dis-
position of the returns. It is obvious, therefore, that under the plead-
ings the contestant cannot ask the House to reject these returns, or be
permitted to appropriate these 128 votes.

The contestee denies that these votes are proved to have been cast for
the contestant. In the first place, not one of the depositions offered to
prove them is certified by the officer before whom they purport to have
been taken, or by any other officer. This fact alone is a fatal objection.
Furthermore, the testimony offered to prove that the 128 votes in ques-
tion were cast for the contestant is testiinony-in chief, and yet it was
taken, in violation of the law and against the protest of the contestee,
during the period fixed by the statute for taking rebutting proofs. And,
finally, the notary, at the instigation of the contestant, unlawfully re-
fused to permit the coutestee to cross-examine any of the 106 witnesses,
whose so called depositions are printed on pages 1270 to 1333 of the
record.

But these 128 depositions, lame and sickly as they are in point of
competency, are as to intrinsic character in a still more disorderly and
repulsive condition. The contestant asserts that they show that 128
votes were cast for him for Representative in Congress. But the fact
is they only show that 17 votes were cast for him, whereas the returns
themselves give him 56. Five of the 128 witnesses testify that they
voted for William M. Lowe for President of the United States ; twenty-
eight testify that they did not know for what office Mr. Lowe was a
candidate ; seventy-seven testify they only knew by hearsay for whom
they voted, and of these latter twenty say that they did not see the
faces of the tickets which they voted ; and, finally, one of the 128 does
not say that he voted at all at this precinct.

Let us first consider for a moment the contestant's Presidential can-
vass in this precinct. We shall have occasion to observe something, of
the quality and flavor of the proof by which he aims to impeach the
precinct returns.

Scip Shelby, 1290 :

Q. State all the persons you voted for, and the offices for which they were running.
A. I didn't vote for any one but Mr. Lowe. Mr. Lowe was running for President.

Q. State all the circumstances connected with the giving of the said ticket to you
by the said Wallace Toney. A. He handed me the ticket and told me to put it in the
box as he had given it to me.

Q. State if it is not true that you do not know what ticket you voted except from
what Wallace Toney told you. A. It is true.

Tom Smith, 1299:

Q. State all the names of the persons you voted for, and what offices they were can-
didates for, and when you voted. A. I voted for Mr. Lowe and Mr. Garfield; Mr.
Lowe was running for President; I do not know what office Mr. Garfield was running
for on the 2d November.

Q. State what Wallace Toney said to you when he gave you the ticket. A. Handed
me ticket and told ine to not let it touch my body anywhere.

Q. Was it open or folded ? A. Folded.

Q. State if it is not true that you don't know what ticket you voted except from
what Walllace Toney told you. A. It is true.

Charles Arnett, 1308:

Q. State what time you voted last, who you voted for, and what offices they were
running for. A. I voted last year; I don't know what month; / voted for Loice for
President.

122 DIGEST OF ELECTION CASES.

Tom Abrams, 1318 :

Q. State the names of the persons you voted for, and the offices for which they were
running. A. I voted for Mr. Lowe; he was running for the Presidency.

Q. State if it is not true that you didn't know who you voted for except from hear-
say; and can you read! A. It is true; I can't read.

Jere Lanier, 1325:

Q. Whom did you vote for, and the offices for which they were running, and the
last time you voted! A. I voted for Mr. William M. Lowe; I can't tell who else were
running; Mr. Lowe was running for President; last November.

Q. State if it is not true that you don't know what ticket yoii voted except from
hearsay. A. It is true.

It is not the right of the contestant to ask that votes cast for him as
a candidate for the position of Chief Magistrate shall be counted as
votes cast for Eepresentative in Congress.

Let us now turn to the depositions of the voters who swear that they
did not know for what office the contestant was a candidate.

Bill Owens, 1275 :

Q. State the names of all the persons you voted for on said day, and the offices for
which they were running. A. I voted for William M. Lowe; I did not vote for any
one else ; / don't know what office he was running for.

Q. Is it not true that you do not know what ticket you voted on said day except
from what Wallace told you f A. Yes, sir.

Euben Lankford, 1276 :

Q. When was the last time you voted ; for whom did you vote? Name all the per-
sons you voted for, and the offices for which they were running. A. I voted iu No-
vember ; I voted for Mr. Lowe ; I do not know any other names, nor what offices Mr.
Lowe was running for.

Q. Do you know, except from what Wallace told you, what ticket you voted and
who you voted for ? A. No, sir.

Q. Was your ticket open or folded when he gave it to you ? A. Folded.

Nat Donegan, 1281 :

Q. Do you know what office Mr. Lowe was a candidate for ? A. I don't know.

Q. Please state if it is not true that, aside from what Wallace Toney told you, yon
do not know what ticket you voted and for whom you voted on Novembers, 1880.
A. It is.

Q. Can you read ; and was that ticket open or folded when said Toney ? A. Folded ;
cannot read.

Anthony Lipscomb, 1284 :

Q. Do you know what office Colonel Lowe was running for f A. No.

Q. Would you recognize the ticket you voted that day? A. I have no knowledge
except what I was told.

Q. It is true, then, is it not, that you do not know of your own knowledge, that is
to say, aside from what you were told by said Wallace Toney, what ticket you voted
on said day, or who you voted for ? A. Yes.

Q. Was said ticket open or folded ? A. Folded.

Wm. Mendum, 1287 :

Q. State the names of all the persons you voted for, and the offices for which they
were candidates, and when you last voted. A. I voted for Garfield and Arthur and
Willie Lowe. / don't know what offices they were running for. November 2, 1881.

Q. State if it is not true that you don't know what ticket you voted except from
what Wallace Toney told you. A. It is true.

C. Anderson, 1287:

Q. State the names of all the persons you voted for, and for what offices they were
candidates, and when you last voted. A. No person but Mr. Lowe. / don't know
what office he was running for. I voted in November, 1880.

Q. State if it is not true that yon don't know what ticket you voted except from
what Wallace Toney told you. A. It is true.

W. Weedeii, 1288 :

Q. Who did you vote for, and when did you vote, and for wha to ffices were the per-

LOWE VS. WHEELER. 123

sons running for ? A. I voted for Colonel Lowe ; do not knoiv what office he was running
for ; don't know anybody else that was running.

Q. Is it not true that you do not know what ticket you voted except what said
Toney told you ? A. It is true.

B. Lightfoot, 1289 :

' Q. State the names and offices for whom you voted. A. Mr. Lowe was the only
one. / don't know what office he teas running for.

Q. Is it true that you do not know what ticket you voted except from what said
Toney told you? A. It is true.

Cal West, 1291 :

Q. State the names of all the persons you voted for, and the offices for which they
were candidates. A. I voted for Mr. Lowe ; I don't know what he was running for.

Q. Is it not true that you don't know what ticket you voted except from what
Wallace Toney told you ? A. It is true.

Chas. West, 1291 :

.Q. State the names of all the persons you voted for on said day, and the offices they
were running for. A. I don't remember but two, Mr. Lowe and Garfield. Garfield
was running for Congress, Loire was running for the same.

Q. Is it not true that you don't know what ticket you voted except what Wallace
Toney told you ? A. It is true. ,

Cagy Kelly, 1292 :

Q. State the names of the persons you voted for and the offices for which they were
running. A. I voted for Mr. Lowe and nobody else. / don't know what office he was
running for.

Q. State if it is not true that you did not know what ticket you voted except what
Wallace Toney told you. A. It is true.

E. Farley, 1293 :

Q. State all the names of the persons you voted for and the offices for which they
were candidates. A. Mr. Lowe and Garfield, Greenbacker.

Q. State if it is not true that you don't know what ticket you voted at the last elec-
tion. A. It is true. I voted the ticket I got from Toney, anddon't know whatit was.

John Brown, 1294:

Q. State the names of all the persons you voted for, and the offices for which they
were running, and when you last voted. A. No one but Mr. Lowe that I know of ;
I don't know what office he was running for ; I voted last in November, 1880.

Q. State if it is not true that you don't know what ticket you voted for except
what Wallace Toney told you. A. It is true.

John Landnaan, 1294 :

Q. State the names of all the persons you voted for, and the offices for which they
were running, and when you last voted. A. Lowe was one and Garfield; I don't
know what offices they were running for.

Q. Is it not true that yon don't know what ticket you votqd except from what Wal-
lace Toney told youf A. It is true.

E. Smith, 1295 :

Q. State all the names of the persons you voted for, and the offices for which they
were candidates, and when you voted last. A. Lowe was one and Garfield another.
I don't know what offices they were running for ; I voted in November.

Q. State if it is not true that you don't know what ticket you voted except from
what Wallace Toney told you. A. It is true.

Tyson Moore, 1297 :

Q. State the names of all the persons you voted for, and the offices for which they
were candidates, and when you last voted. A. William M. Lowe, Garfield and Arthur;
Garfield was running for President ; / don't know ichat Arthur or Lowe was running for ;
I voted in November.

Q. State if it is not true that you don't know what ticket you voted except from
what Wallace Toney told you. A. It is true.

G. Chapman, 1301 :

Q. State the names of all the persons you voted for, and the offices for which they

124 DIGEST OF ELECTION CASES.

were candidates, and the last time you voted. A. I can't state the names of all I voted
for; I voted for Mr. Lowe for one; I don't know what office he was running for.

G.Adams, 1306:

Q. State the names of all the persons you voted for, and the offices for which they
were candidates. What time did you vote ? A. Mr. Lowe is the only one I can recol-
lect. I don't know what office he was running for. I voted in November.

Q. State if it is not true that you don't know what ticket you voted except from
what Wallace Toney told you. A. It is true.

Caleb Toney, 1307 :

In November I aimed to vote for William M. Lowe ; I didn't read the names of all
I voted for ; / don't know the offices for which they were candidates.

Q. Can you read ? A. No, sir.

Q. State if it is not true that you don't know what ticket you voted except from
what Wallace Toney told you. A. It is true.

Wash Lundy, 1308 :

Q. When did you vote ; for whom did you vote T State the names of all the men you
voted for and the offices for which they were candidates. A. I voted last year; I don't
remember the month; I aimed to vote for Lowe ; I don't remember the names of any
except Mr. Lowe ; / don't knoiv what office he was running for*

Q. Is it not true that you don't know what ticket you voted on November 2, 1880 T
A. It is.

Eichard Toney, 1309 :

Q. State when you voted last, who you voted for, and for what offices they were
running. A. November ; I voted the ticket Wallace Toney gave me ; I don't know
what was on it.

Jim Lankford, 1313 :

Q. Is it not true that you don't know who you voted forT A. I know nothing ex-
cept what I was told.

Q. State the names of the persons you voted for, and the offices for which they were
running. A. I voted for Mr. Lowe. I don't know what office he was running for.

Q. Can you read f -A. No, sir.

Mingo Lanier, 1317 :

Q. State the names of all persons you voted for and the offices for which they were
candidates. A. I just voted for Lowe ; don't know ivhat he was running for.

Q. How do you know what kind of ticket it was T A. I don't know, because I could
not read.

Abram Brown, 1322 :

Q. State who you voted for and the offices for which they were running. A. Mr.
Lowe ; / don't know what office he was running for.

Q. How do you know who you were voting for ? A. The man who handed it to me
said it was a United States ticket.

Q. Is it not true that jrou do not know what kind of a ticket you voted T A. It is
true ; only so far as I was told.

Ben Lewis, 1327 :

Q. State who you voted for and the offices for which they were candidates, and
when you voted last. A. I voted for Lowe ; I don't know that I voted for any one
else; I don't know what office he was running for ; I don't know.

B. Eldridge, 1273 :

Q. State where you voted last, who you voted for, and for what offices they were
running. A. November; Lowe; don't know for what offices they were running for.

Q. Is itnottrue you do not know what ticket you voted except what Wallace told
you f A. It is.

Anthony Wilkins, 1277 :

Q. Do you know what office Colonel Lowe was running for, and whether anybody
else was running on the ticket you voted ? A. I do not know.

A. Echols, 1285 :

Q. Do you know what office Colonel Lowe was running for ? A. I didn't know.

LOWE VS. WHEELER. 125

Q. Would you recognize the ticket you voted on that day? A. Yes.

Q. How would you know it? A. By the difference of the tickets.

Q. Please tell me what that difference is. A. I judge by the leading man that gave
me the ticket.

Q. Was the said ticket handed to you folded or unfolded T A. Folded.

Q. You don't know, then, from your own personal knowledge, what ticket it was
he gave you and who you voted for? A. I know nothing but what was told me.

We submit that it is not the right of the contestant to demand that
the votes of these men, who swear they do not know for what office he
was a candidate, shall on their testimony be counted for him as Repre-
sentative in Congress.

Next comes the procession of 77 colored Republicans who only knew
by hearsay whether they voted for the Greenbacker Lowe or the Dem-
ocrat Wheeler. The following is a statement of their names and of the
pages on which their testimony is to be found. Twenty testify that
their tickets were handed to them folded up, and they only knew' their
contents by hearsay, viz :

Feimell, 1204 ; Lanier, 1266 ; Fennell, 1268 ; Davis, 1270 ; Law, 1277 ;
Holding, 1278; Horton, 1278; Johnson, 1279; Holding, 1279; Williams,
1280; Wiggins, 1281; Jones, 1282; Chapman, 1283; Holding, 1286;
Lanier, 1309; Toney, 1309; Feunell, 1320; Rice, 1323; Taylor, 1333;
Love, 1339.

Fifty-seven testify that they only knew by hearsay for whom they
voted :

Holmes, 1269 ; Horton, 1271; Erwin, 1271 ; Ware, 1272 ; Toney, 1273 ;
Mason, 1274; Go wens, 1274; Lanier, 1290; W r est, 1291 ; Walbridge,
1292; Farley, 1293; James, 1295; McVay, 1296; Holding, 1297;
Slaughter, 1298; Jamar, 1299; Lundy, 1300; Thompson, 1300; Patten,
1301; Taylor, 1302; Johnson, 1303 ; Toney, 1304; Miller, 1306; Rag-
land, 1307; Martin, 1310; Hunter, 1311; Madkius, 1311 ; Caver, 1312:
Watkins, 1313; Daudridge, 1314; Rodgers, 1314; Madkins, 1315;
Kelly, 1315; Robinson, 1316; McDonald, 1316; Robertson, 1317; Bea-
lle, 1318 ; Holding, 1319 ; Kelly, 1319 ; Jordan, 1321 ; Turner, 1322 ;
Bond, 1323; Smith, 1323; Smith, 1324; Lanier, 1325; Tate, 1325;
Kibble, 1326; Gladdis, 1327; Harbert, 1329; Clay, 1330; Kibble, 1331;
McCrary, 1331 ; Scruggs, 1332 ; Jordan, 1333 ; Ragland, 1335 ; Wiggins,
1336; Toney, 1338.

The attempt to impeach the returns of Lanier's precinct, and to
gather up for the contestant 128 votes by means of these depositions,
is a failure. If the contestant had in his notice of contest laid a founda-
tion for claiming and proving these votes ; if he had in fact proved
them ; if his depositions had not been inadmissible because not cer-
tified; if they had not been rendered inadmissible by the refusal of the
notary, on the motion of the contestant, to permit the contestee to
cross-examine the witnesses, then the contestant might have some ground
on which to stand. But instead of proving that 128 votes were cast for
him, he has only proved that 17 were cast for him; that is to say,
he has proved 39 less than the number (56) given him by the precinct re-
turns. The result is, that instead of sweeping away the entire returns
and then gathering up for himself 128 votes outside of the returns, so as
to make the vote of Lowe 128 and for Wheeler none, he has reduced
his own vote from 56 to 17, leaving for Lowe 17 and Wheeler 142.

In support of his attack on these polls, the contestant asserts that
the inspectors were all Democrats.

But the requirement of the statute is that the county judge shall ap-
point u three inspectors for each place of voting, two of whom shall be
members of opposing political parties, if practicable." This relates only

126 DIGEST OF ELECTION CASES.

to the original appointments. There is a further provision for a selec-
tion, by the inspectors themselves, to fill a vacancy at the polls. But
there is no requirement, express or implied, that, in filling such a va-
cancy, the inspectors shall look to a representation of opposing political
parties on the board.

Now, the provision for the original appointments of these inspectors
is not mandatory, but is merely directory. There is no provision that
the election shall be void upon failure to comply with the requirement.
The fact that the observance of the requirement is made to depend on
the practicability of making such appointments, of which practicability
the appointing power must of course be the judge, negatives its man-
datory character. But then, aside from that, there is in the nature of
the provision nothing to justify the rejection of a, return for the reason
that the county judge failed to give the opposing political parties rep-
resentation on the board of inspectors.

Mr. McCrary correctly states the general rule, in sections 126 and
200, as follows :

If, as in most cases, the statute simply provides that certain acts or things shall be
done, within a particular time, or in a particular mann'er, and does not declare that
their performance is essential to the validity of the election, then they will be re-
garded as mandatory if they do, and directory if they do not, affect the merits of
the election.

Unless a fair construction of the statute shows that the legislature intended com-
pliance with the provisions in relation to the manner to be essential to the validity
of the proceedings, it is to be regarded as directory merely.

But then, whether the provision for the original appointment was, or
was not, a mandatory requirement that the opposing political parties
should be represented on the board, it is certain that the provision for
filling vacancies at the polls embraces no requirement, direct or in-
direct, express or implied, that the vacancies shall be so filled as to
secure representation to the opposing political parties on the board of
inspectors.

So much for the law. Now for the fact. The fact is that Horton, the
inspector against whom the complaint is aimed, had long been a Repub-
lican, and there is no proof showing, or tending to show, that he would
not have voted for a Republican candidate for the office of Representa-
tive in Congress at this election if there had been such a candidate.
The fact that he did not vote for the contestant affords not the slightest
evidence that he was not a Republican.

It is true that the contestant's witness, Hertzler, says, on pages 178
and 180 :

Q. Did Frank Horton try to get people to vote the Democratic ticket ? A. No, sir.
Frank Horton, I thought, was a Republican, but from his actions I don't know he was
anything; he just simply sat there and didn't say anything. I have only found out
since that he was a Democrat.

Q. How did you find out he was a Democrat since the election ? A. I found out by
my neighbors that Frank Horton was a Democrat.

Q. Was it not generally understood before the election that he was a Republican T
A. Before the election I didn't know him at all.

Q. You are pretty well satisfied that the charge against Frank Horton is untrue ?
A. Yes, sir. The box was not tampered with while the election was going on.

Q. Have you any information that would lead you to believe that Judge Richard-
eon, or the sheriff of this county, or the clerk, had any intimation that Frank Horton
was not a sound Republican ? A. No, sir; I don't.

Q. Have you any reason to believe, except the charges that other negroes bring
against Frank Horton, that he is not a Republican ? A. Well, I don't understand you ;
well, I have no reasons that he is not a Republican. He is a Democrat, is what they
tell me. I know nothing but what they tell rue.

LOWE VS. WHEELER. 127

But J. F. Lauier says, on page 561 :

Q. Is it true that all the inspectors here are avowed Democrats ? A. I believe that
Captain High and Mr. Baldridge are Democrats, but Frank Horton has acted with
^he Democrats in the last two elections, but always claims to be a Republican.

And, on page 563, B. C. Lanier says :

Q. What is your knowledge of Frank Horton's politics? A. That he is a Repub-
lican, but has acted with the Democrats in the last two elections.

It is also suggested, as a ground for the impeachment of these returns,
that there were eleven more ballots than voters.

Kow, the fact is that the ballot-box did contain 11 more tickets than
the poll-list contained names, and the inspectors deducted 9 from
Wheeler's vote and 2 from Lowe's, because 9 Democratic tickets and 2
Kepublican tickets were folded. This is shown on page 197 of the rec-
ord.

The law of Alabama does not authorize inspectors to destroy super-
numerary ballots before counting out the votes cast for the several can-
didates. In this respect it differs from the laws of many other States.
At the close of the polls the votes for the rejected candidates were
therefore counted, and the statement of votes printed on pages 196 and
197 made out first. Afterwards the number of votes was compared
with the number of voters, and the supernumerary ballots were de-
ducted from the vote of Lowe and Wheeler respectively. The proof of
this is to be found on page 177 of the record.

The law requires the inspectors to send up the lists of votes and
voters, duly certified. They obeyed the law in this case. The lists are
printed ou pages 196 and 197 of the record. They show that the voters'
names aggregated 188, and that the votes in the box aggregated 199;
that the excess of votes over voters was 11 ; that the votes in the box
numbered 57 for Lowe and 142 for Wheeler ; that they deducted 2 of
the supernumerary ballots from Lowe's vote, and 9 from Wheeler's, and
that the vote, so counted, stood : for Lowe, 55, and Wheeler, 133. But
the county canvassers overlooked the last paragraph of this statement,
and counted for Lowe 56, and for Wheeler 142. These facts deprive
the contestant of one vote and the coutestee of nine. But they have
no other effect on the case.

The deposition of William Wallace, alias Wallace Toney, is offered
to prove that 128 votes were cast for the contestant, and also to impeach
the returns. His deposition is inadmissible, for the reasons which ex-
clude the others. But he is himself impeached by W. F. Baldridge, on
page 549, and by W. E. Jordan, on page 566. Baldridge's character is
shown to be reliable by the contestant's witness, Hertzler, on page 179.
The contestant afterwards examined 126 witnesses, and made no attempt
to vindicate the character of Wallace.

In support of his attack on these returns the contestant also charges
that there was delay in the opening of the polls and in the appearance
of the registrar. Hertzler's assertions on this point are overwhelmingly
answered by the contestee's witnesses, Baldridge, High, J. F. Lanier,
B. C. Lanier, and Jordan.

J. Hertzler testifies, page 174:

Q. Why were not the polls opened at that box sooner? A. They were not opened
on account of the registrar not being there, and there was a difficulty among the in-
spectors as to the appointiug a registrar. Mr. Baldridge, one of the inspectors, said
that he wouldn't open the polls unless the registrar was there, while the others claimed
that they could appoint a registrar; we had the code there, which read that if the
assistant registrar wasn't there the inspectors could appoint a registrar who may
qualify for that day, and that word Mr. Baldridge, the principal inspector, claimed

128 DIGEST OF ELECTION CASES.

that he didn't know that any one there could qualify; that that word meant he held
that word meant that he would have to go before the justice of the peace or the
registrar, who was in Huntsville.

Q. Is it not true that you endeavored to get the inspectors to open the polls before
they did open them ? A. Yes, sir ; we tried to get the inspectors to appoint a registrar
and qualify him until the registrar came that was appointed ; that Mr. Baldridge ob-
j^ted to; said that it couldn't be done, and finally Mr. Burwell Lanier, sr., the re-
* ruing officer, said that if Mr. Baldridge, or any of the inspectors, appointed a man,
that he would be responsible ; that it was right ; and then Mr. Baldridge did appoint
Mr. McDonnell and put him right to work, but he was not qualified at all.

W. F. Baldridge, 548 :

Q. State where you were on November 2, 1880 ; and if you held an office that day,
please state it. A. I was at Lanier's precinct, Madison County; was one of the
inspectors.

Q. What time did the polls open or what time were they opened? A. The polls
were opened formally a few minutes after eight o'clock.

Q. Were the polls opened by proclamation ? A. They were.

Q. Was there any delay in voting after the polls were opened ? A. There was about
two hours.

Q. What caused the delay ? A. The registrar was not there, and it became neces-
sary to appoint one ; and after examining the code of Alabama, I found that a regis-
trar could be appointed after ten o'clock. After consultation with the other inspect-
ors we appointed one.

Q. Who was appointed, and by whom was he appointed ? A. After applying to and
requesting George Allen, William Allen, and John Jordan a^nd others, including Frank
Hertzler, I finally obtained the services of Archibald McDonald to act as registrar.

Q. Did any one send for Win. B. Matkins? If so, who sent for him and when did
you send? A. William B. Matkius being the regular appointed registrar, and not
being present, I did, about nine o'clock, send one Napoleon Powell to the residence of
said Matkins to ascertain the reason of his non-appearance. He lives about two and
a half miles from Lanier's.

Q. Doyoukuow why W. B. Matkins didnot come to Lauier's when the polls opened T
A. He informed me that he had gone to Pond beat the day before ; that his horse
got loose, and was unable to get home that night, was the reason for his non-attend-
ance at the polls in time.

W. H. High, one of the inspectors, 554, J. F. Lanier, the United
States deputy marshal, 559, B. C. Lanier, 563, and W. E. Jordan, 565,
corroborate the statements of Baldridge.

The contestant, in further support of his attack on the integrity of
the Lanier returns, charges that twisted ballots were voted, and that
the box was removed and tampered with before the votes were counted.

It is true that the law of Alabama requires the inspectors to proceed
with the precinct canvass as soon as the polls close. But the facts were
that it was not practicable to make the precinct canvass in the open
blacksmith shop, where the election was held, for neither lights nor fire
could be maintained in the shop. The inspectors were unable to secure
the use of Lanier's store, which was the building nearest to the black-
smith shop, for the purpose of making the canvass, and they were
unable to obtain the use of Lanier's house until after the family had
taken supper.

Hertzler's, statements on this point are completely met by Baldridge,
High, Lanier, and Kibble.

W. F. Baldridge says, 548, 549, 551 :

Q. What kind of a house was the election held in ? A. A blacksmith shop without
any floor ; the planks were put on upright and were secured so as to leave open cracks
between them ; the cracks have never been covered with strips ; it has a large double
door reaching from roof t ground. We could not have any light at all when the
wind was stirring, and we could not have any fire on account of the smoke, there being
no fireplace except the furnace used by the blacksmith ; we tried iu the morning to
have fire, but had to let it go out.

Q. Would it have been practicable or even possible for you to have counted out the
ballots in that blacksmith's shop that night ? A. It would not have been practicable
or possible, from the fact that we could not have light or fire, and it was cold, too
cold to stay in there without fire.

LOWE VS. WHEELER. 129

Q. Was there any other shelter which you could have obtained for holding the elec-
tion than the place where you did hold it ? A. There was not.

Q. Did you count out the ballots at the most convenient place near the place where
the election was held ? A. Mr. B. C. Lanier's house was the most convenient place
we could get, and he was the returning officer for said election.

Q. Who were present when the ballots were counted outf A. John Hertzler, the
supervisor; B. C. Lanier and James McDonald, clerks; W. E. Jordon, deputy sheriy
William M. High, Frank Horton, and myself, inspectors; and Aleck Kelly, who WOT
the only one present that was not an officer.

Q. Who called out the votes ? A. William M. High and myself.

Q. State how you found the ballots in the box, and state whether or not you found
any ballots rolled or twisted together. A. There were no ballots found in the box
that were rolled or twisted together. There were in two or three instances two and
three ballots together, not rolled or twisted, but in a condition as if they might have
slipped together iu the shaking the box. With one exception there were two ballots
folded together that indicated they were voted together, and never more than three
were found together.

Q. State the position of the three ballots which you say you found together. A.
They were folded separately, and might have slipped together in shaking the box.

Q. Were the three ballots you refer to as being found together in such a condition
that they would fall apart without unfolding them ? A. Those that I took out could
have done so.

Q. Were or not any ballots found together making such a bulk that they could not
easily have been passed through the hole in the box through which the ballots were
passed as the voting took place f A. There were none.

Q. You stated that you found two ballots in the box which were folded together.
Please state what name was on these two tickets for Congress. A. The ballots to
which I have referred were folded together closely three times, and they were Lowe
ballots. There were other ballots that were folded so that they might have been
voted together.

Q. Whose name for Congress was on the other ballots you refer to as being in a con-
dition indicating that they might or might not have been voted together ? A. Wheel-
er's name was on them in two or three instances, and Wheeler's name was on the three
ballots which I have named as being found together.

Q. Do I understand you to say that the only instance when the votes were folded
together so closely as to make it appear that they were certainly voted together was
the instance you mention of the two Lowe ballots? A. It is because it was the only
instance in which they could not have slipped together in the box. I refer to those
that I took out myself. I took out probably more than half.

Q. If such statement has been made, that there were fbuiid in the box six or seven
ballots rolled or twisted together, please state if said statement was true or false.
A. It is false.

W. M. High, 555, 556, 557, 558 :

Q. What kind of a house was the election held in ? A. A^blacksmith shop. It is a
house constructed of planks set up endwise, running from roof to the ground, with
good large cracks between the planks, with large folding doors that extended from
the roof to the ground no floor, no place for fire, only a forge, and was very disagree-
able. .

Q. Would it have been practicable or even possible for you to have counted out the
ballots in that blacksmith shop that night f A. No, sir ; I think not, from the fact
that the wind was blowing, and we could not have kept a lamp or a candle burning
during the time.

Q. Was there any other shelter which you could have obtained for holding the elec-
tion than the place where you did hold it ? A. None that I know of.

Q. When the polls closed, why did you not immediately count out the ballots ? A.
Because we could not count them in the house in which we held the election, and
could get no other place until after supper.

Q. What buildings are there in the vicinity of Lanier's voting place I A. The black-
smith shop in which the election was held ; John F. Lanier's store, about fifty yards
from the shop ; Mr. Lanier's residence, about two hundred and seventy- five yards f^rom
the shop. These were the only buildings, except some cabins an<l out-houses and gin-
house. The nearest other buildings are nearly a mile* off, ex^jept a church, which is
within one-half mile of the place.

Q. What place did you succeed in getting in which to count out the ballots T A.
Mr. Lanier's parlor.

Q. How did you happen to go there I A. By invitation. Mr. Lauier proposed if
we would take supper with him that we could use his parlor afterward in which to
count out the votes. ^ ,

H. Mis. 35 9

130 DIGEST OF ELECTION CASES.

Q. Why did you not come back to the store to count out the ballots ? A. Because
Mr. John F. Lanier said that we had had the use of his storehouse all day, and it was
unreasonable to ask it that night ; the registrar had used it.

Q. Was not Mr. Lanier's house the next nearest place where the votes could have
been counted out ? A. It was.

Q. Where did you leave the ballot-box when you went to supper ? A. In the back
or side lock-room of Mr. John F. Lanier's store.

Q. Who suggested your putting it there ? A. Mr. Hertzler, I think.

Q. Did you lock up the box in that room ? A. I locked the door of the room after
I put the box into it.

Q. Who was with you when you locked the box in that room ? A. Mr. Hertzler.

Q. Did you go into the room to put the box into it ? A. I did not ; I reached iu
and set the box upon a barrel beside the door.

Q. What did you then do ? A. I locked the door, and soon after myself, Mr. Hertz-
ler, B. C. Lanier, sr., J. S. McDonald, and, I think, B. C. Lanier, jr., and perhaps some
others, went up to Mr. Lanier's to supper.

Q. Who kept the key to the side room into which you put the ballot-box ? A. I
did!

Q. What kind of a lock and door did the side room have ; was it a substantially
built door and a good lock, or what were they ? A. It is a strong lock and door.

Q. Was there any other way to get into that room except through that doorf A.
There was another door through which freight was passed into the room, and which
fastened on the inside with a bar, and could not be entered from without, except being
first opened on the inside.

Q. Whom did you leave in the store when you went to the house ? A. Mr. John
F. Lanier and several negroes.

Q. After supper, what did you do? A. Mr. Hertzler, myself, Mr. B. C. Lanier, sr.,
and others came down into the store together. I unlocked the door of the side room
and took out the ballot-box, and we went back to the parlor and counted out the
votes.

Q. Did you find the ballot-box in precisely the same position as you left it ? A. I
did.

Q. Do you think it possible that the ballot-box could have been tampered with
while you was at supper ? A. No, sir ; I do not.

Q. Do you know John F. Lanier ? A. I do, sir.

Q. What is his standing in this community ? A. It is good.

Q. From your knowledge of the character of John F. Lanier and his standing in
this community, would you believe that he would be guilty of any dishonorable thing
about elections ? A. I would not.

Q. State who went to Mr. Lanier's parlor with you. A. Mr. Hertzler, William F.
Baldwin, Frank Horton, B. C. Lanier, jr., J. S. McDonald, Walter Jordan, and Alex.
Kelly. If there were any others, I don't remember them.

Q. State who first opened the box after the polls were closed. A. Myself or Mr.
Baldridge ; I don't remember which.

Q. Where was the box when it was opened? A. On a table in Mr. Lanier's parlor.

Q. Who were present when the vote was counted? A. Win. F. Baldridge, Frank
Horton, John Hertzler, Walter Jordan, B. C. Lanier, jr., J. S. McDonald, Alex. Kelly,
and myself.

Q. State how you found the ballots in the box, and state whether or not you found
any ballots rolled or twisted together. A. The box, as I remember, was nearly full.
I remember through the day that I had to shake the box several times to get the bal-
lots in. They would accumulate under the hole in the center of the box, and I had to
shake them down, and there were no ballots found rolled or twisted together. There
were several bunches of tickets found together, but there was no bunch with more
than three tickets together.

Q. You speak of three tickets being together. Were they together in such a man-
ner as to show that they were voted together, or were they together in such a man-
ner as would indicate that they got together in shaking the box ? A. There were two
bunches that I am satisfied were voted together three in one and two in the other.
There were others that might have been voted or may have gotten together in the
box.

Q. Was there any other bunch of three tickets together as they came out of the
box ? A. My recollection is that there were two other bunches of three tickets that
were together, but not folded together.

Q. Did you at any time find six ballots together in the box, or did six ballots at any
time come out of the box together? A. There were not six ballots found together in
the box at any time. Six ballots did not come out at any time together.

Q. Are you perfectly certain that in no case either six or seven ballots came out of
the box together ? A. I am perfectly certain that in no case either six or seven bal-
lots came out of the box together.

LOWE VS. WHEELER. 131

Q. Do you know whether or iiot there were windows iu that room, or whether the
door was barred on the inside ? A. There are no windows to the room, and / tried
the door from the outside. I pushed against it and I could not open it.

J. F. Lanier, 559, 560, 561:

Q. Where was the ballot-box put while the inspectors were eating supper ? A. In
the side room of the store.

Q. What persons brought the box to your store? A. I don't know who brought it
to the store. Captain High brought it in.

Q. What did he do with it ? A. He put it into the side room and locked the door.

Q. What did he then do? A. He took the key and went out of the store.

Q. How many keys are there to your side-room door ? A. Only one.

Q. Is there any way to get into that side room except through the door that Mr.
High locked? A. There is another door to the room fastened on the inside by a bar.

Q. Was that door which was fastened on the inside fastened that night f A. It was.

Q. Was it possible for any one to have entered your side room while the ballot-box
was in there except by going through the door that Mr. High locked ? A. Only by
breaking the front door.

Q. Did any one break down the front door ? A. They did not.

Q. You having testified that no one broke down the front door, please say now if
by any possibility your side room could have been entered except through the door
Mr. High locked while the ballot-box was in there without your detecting it ? A. No,
they could not.

Q'. How long did you stay in the store after Mr. High and the other gentlemen went
to supper ? A. About half an hour.

Q. Did anybody go into the side room during that half hour ? A. They did not.

Q. Did you leave anybody in your store when you went to the house to supper?
A. I did not.

Q. What did you do with the key to your store when you went to supper? A. I
put it into my pocket.

Q. Did anybody go into your store while yon was at supper? A. They did not.

Q. When you returned to the store who was with you ? A. Captain High, Captain
Hertzler. J. S. McDonald, B. C. Lauier, jr., B. C. Lanier, sr., and others.

Q. Who came in and got the box ? A. Captain High.

Q. Did you see him unlock the door of the side room? A I did.

Q. What is Alex. Kelly's politics? A. He is a Republican.

Q. If any one has stated that while you was at supper on November 2, 1880, he saw
two men go into your store by the door nearest to your father's house, was such state-
ment true or false ? A. I am satisfied that no one went into my store while I was at
supper.

Q. Did you send anybody to guard your store while you were at supper ? A. I did.

Q. State who it was, and what you told him to do. A. It was Henry Kibble, and
I told him to go down and stay about the store until I came ; that I forgot to take my
money out of the drawer that night.

Q. Did Henry Kibble go into the store I A. He did not.

Q. Was Henry Kibble at the store when you came down ? A. He was.

Q, Did you refuse to permit the officers of election to count the ballots in your store ?
If so, why ? A. I did not make a positive refusal. I told them that I suspended
business during the day to assist the register, and that they were making an unrea-
sonable request of me.

Q. If you had suspended business during the day, from what source did the money
which you left in the drawer, and that you sent Henry Kibble down to look after?
A. From sales on days previous to that.

Q. You stated that the door opening out of the side room, which is fastened by a
bar inside, was fastened while the ballot-box was in there. Have you any special
reasons for remembering that that door was fastened at that particular time, or do
yon state it because you habitually keep it fastened ? A. My reason is this : I had
gone in there a short while before the box was put in that day and shut and fastened
the door, and no one had gone in there from that time till the ballot-box was put in,
nor until the next day.

H. Kibble, 569 :

Question. State your name, age, occupation, and where you lived on November 2,
1880. A. Henry Kibble; about fifty years; house and farm hand; I lived with B. C.
Lauier, right here.

Q. Did you see J. F. Lanier about supper time on the night of the election ? A. I
did.

Q. Did he tell you to do anything? A. He told me just about supper time, in the
yard, if I could get the chance to come to the store and set upon the fence until he
could come from his supper, and to hail him when he did come, so that he might know
that I had been here.

132 DIGEST OF ELECTION CASES.

Q. What did you do ? A. I did come down to the fence near the corner of the store
and staid there until John F. Lanier came there.

Q. How long after J. F. Lanier told you to go to the store did you go to the store t
A. I come right off'.

Q. How far from the store was you when he told you to go to the store ? A. About
two hundred yards.

Q. Did anybody go into the store while you was there ? A. No, sir.

Q. Are you certain about that ? A. Yes, sir.

Q. Did you hear any noise in the store or see any light in the store while you was
there ? A. I did not.

One explanation of the large vote cast for the contestee at this pre-
cinct is that many colored Eepublicans having no Republican candidate
for Congress preferred the contestee to the contestant. This is shown
by the proofs.

J. Hertzler, a witness for contestant, 183, 188 :

Q. I believe you stated yesterday that while the election was going on a crowd of
colored men came up and voted, and that it was rumored or stated that the leader of
these colored men had sold out, did you not ? A. I so understood the next day.

Q. You mean, do you not, by selling out, that this colored man had gone back upon
the Republican party ? A. That is what I understood ; that in that way this majority
was brought about.

Q. Then, on the next day after the election, you understood that this majority was
brought about by a colored man inducing an entire club to vote the Democratic
ticket ? A. Yes, sir.

Q. Isn't it true, Mr. Hertzler, that you would think, from your knowledge of
colored men, that they would disposed to secrete the fact of having voted the Demo-
cratic ticket if they had been censured for it ? A. Well, I expect they would, likely.

Q. It is true, too, of your knowledge of the colored men, that very many of- them
have a very imperfect idea of the sanctity of an oath ? A. Yes, sir.

P. McDaniel, a witness for contestant, 212 :

Q. It is true, is it not, that any colored man who wanted to change his ticket could
do so as he passed through the little room before he got to the polls ? A. After he en-
tered the door, why, if he saw cause to change, and was mean enough, he could change
right in the presence of the officers there ; he didn't change in our presence, though,
where we could see.

Q. You say, then, if he was mean enough to do it, he could change after he got in
the room ? A. After he entered the door.

Q. And when they got in that room most of them staid some five minutes, did
they not ? A. Yes, sir.

Q. It is true, is it not, that some colored men voted the Democratic ticket, and one
or two admit it, and the other men who voted the Democratic ticket are apt to deny
it ? A. Well, I don't know, sir, of any one that we gave tickets voted the Democratic
ticket, and if they did it is not known to the general run of colored people. Any one
that voted the Democratic ticket the officers know could not have voted after they
entered the room without changing inside the door.

Q. Is it not true that there is a good deal of feeling expressed by the colored men
down there about men who vote the Democratic ticket and then conceal it ? A. Yes,
sir.

Q. Is it not true that women have actually threatened to leave their husbands be-
cause they were suspected of voting the Democratic ticket ? A. Yes, sir ; I have
heard of the like.

Q. Is it not true that in those clubs there has been a good deal of talk, and among
the members of those clubs a good deal of talk about men of the colored race who
were understood to have voted the Democratic ticket and concealed it ? A. Yes, sir.

Q. Don't you think some of them are sorry for it? A. I don't know. A man that
is mean enough to do anything of that kind I can't tell hardly when he is sorry.

W. Wallace, a witness for contestant, 222, 223 :

Q. Were these men who said they would hold their tickets a foot and a half from
their body who had been suspected of voting the Democratic ticket on the sly ? A.
They were men who voted the Democratic ticket in August.

Q. And they had been censured by the other colored men for deserting their race in
August, had not they? A. What do you mean by censured ? Yes, sir ; they had
been laughed at. I don't know that they had rated them in any way, though they
had been laughed at.

Q. Then, to fully understand the matter, the men who held out the tickets a foot

LOWE VS. WHEELER. 133

and a half from the body were men who voted the Democratic ticket in August, and
they did it that is, they held out their tickets in November to show you that they
voted the Republican ticket in November? A. They done that to prove that they
were true Republicans; that is, all men did.

Q. Did every man take his ticket in his left hand or right hand? A. In his right
hand.

Q. Did you examine his hand and sleeve, to see that there was no other ticket
there ? A'. Well, they would open their hand. I did not examine their sleeve, but
their coat was so short I could see their wrist and see there was nothing else in their
hand.

Q. You thought it important to examine their wrist and see that there was noth-
ing up their sleeves f A. Yes, sir ; I did.

Q. And you examined each one in this way T A. Yes, sir; I examined every one
that voted the ticket.

Q. You examined each .one of the 156 colored men ? A. Yes, sir; I did.

Q. You examined their hands and sleeves to see that there could be no foul play T
A. Well, I did not feel of their arms and sleeves, but I examined their'wrists close
before I gave them their ticket.

Q. You did all this because you had very little confidence in these men f A. I had
confidence in them, but I did it to be satisfied in my own mind that they did vote the
Republican ticket.

Q. If the Democratic ticket they had had been rolled up very close they could have
secreted it so you could nos see it, could not he ? A. Every man held his hand open
and showed me that he had no ticket before he asked for mine.

A. McCalley, 506 :

Question. State your name, occupation, and if you are a colored man. Answer.
Alfred McCalley ; forty- seven years of age ; occupation, minister of the gospel and a
farmer ; colored man.

Q. State if you was a delegate to the Democratic convention held in Decatur last
August which nominated a candidate to represent this district in Congress T A. I
was.

Q. What other colored men, if any, from this county, were delegates to that con-
vention ? A. W. H. Countill and Anderson Critz.

Q. Were there many colored men who were earnestly advocating the Democratic
cause in the November election ? A. There were.

Q. About how many voted the Democratic ticket at Lanier's store in the Novem-
ber election ? A. I can't state the exact number, but think there were a good many.

Q. Do you know of any acts of terrorism to prevent colored men from voting the
Democratic ticket in the last November election or preceding thereto? If so, state
what they are. A. I do. I know that colored men are generally ostracized if they
vote the Democratic ticket. Essex Lewis was turned out of the Cumberland church
because he voted the Democratic ticket, and I have been ostracized on that account.
The elder of the church told me that neither Essex Lewis nor I should ever be received
at his house again since we were going to vote the Democratic ticket. The pastor of
the church invited me to assist him in administering sacrament at Poplar Hill. I went
to do so. Afterl had read a passage of Scripture and prayed and got up to announce
my text, a confusion ensued and many of the congregation departed, saying that they
would not stay to hear a " Democratic nigger" preach. This was since the election.

Q. Please state if you went to Hart sell's to make a speech in September last in' the
interest of the Democratic party ? A. I did.

Q. Please state what occurred ? A. I was asked what party I was advocating. I
said the Democratic party. Then they would not permit me to speak.

Q. Who was it that would not allow you to speak ? A. The colored people.

Q. Did you know who they were ? -A. I did not. I only know that there was a
large portion of them who would not permit me to speak.

Q. Did they use any threats against you if you tried to speak ? A. They did. They
said if I got up to speak that they would mob me.

Q. What did you do ? A. I took the 4 o'clock train and returned to Huntsville.

Q. Why do you think that a great many colored men voted the Democratic ticket
at Lanier's store in the November election ? A. There are a great many colored men
who favor the Democratic party, and will always vote that ticket but for the ostra-
cism and terrorism practiced by the Republicans or Greenbackers.

Another explanation of the result is that Lanier's precinct was carved
out of Triana and Whitesburg precincts after the August election and
before the November election of 1880, and the aggregate Democratic
majority at the two precincts in August was 169, whereas at the Kovein-

ir election the aggregate result was a Democratic minority of 222.

134 DIGEST OE ELECTION CASES.

This shows not a Democratic gain, but a Democratic relative loss of 391
votes at the three precincts in November.
The vote in August stood as follows :

Democratic. Opposition.

Triana 350 227

Whitesburg.. 267 221

617 448

Democratic majority, 169.

But the vote in November was :

Democratic. Opposition.

Triana 84 336

Whitesburg 175 223

JLanier's 133 55

392 614

Democratic minority, 222.

This is shown on pages 533, 534, and 535 of the record.

It appears, therefore, that the aggregate opposition vote was 111
greater at the Triana and Whitesburg precincts in November than in
August, while the aggregate Democratic vote in November, in all three
precincts, was 225 less than at the two original precincts in August.
And almost half of the aggregate Democratic votes cast in November
in the three precincts were cast at the new precinct of Lanier.

A third explanation is, that three colored men, including Rev. Mr.
McCally, were members of the convention which nominated Mr. Wheeler,
and were influential workers for him.

Still another explanation is, that William Wallace, alias Wallace To-
ney, distributed Wheeler tickets. Wallace denies this. But Jordan
swears to it on page 566. Wallace is impeached on pages 549, 556 ; and
not one of the numerous witnesses, afterwards examined by the con-
testant, is called upon to sustain him.

IV.

MERIDIANVIILLE, No. 2.

The following is the conclusion of the committee respecting the elec-
tion at this precinct :

The returns being successfully impeached, contestant very properly relies upon the
direct testimony of the voters themselves, \vhich clearly entitles him to 55 votes at
this box.

But the contestant did not specify, as one of the grounds of his con-
test, that he received 55 votes, or any other number of votes, at this pre-
cinct; nor did he advise the contestee in his notice of contest that he
would attempt to prove such votes by witnesses. Nor did he demand
the rejection of the precinct return. All he said was this :

I am informed and believe, and so charge the fact to be, that there was fraud and
ballot-box stuffing or a false count at the precinct of Meridianville (box No. 2), in Mad-
ison County.

The grounds of this alternative charge, urged in argument, were (1)
that the contestant received 18 votes less than the Gartield electors j (2)
that all the inspectors were Democrats ; (3) that 55 ballots were cast for
the contestant, but only 47 counted for him ; and (4) that one of the in-

LOWE VS. WHEELER. 135

specters so inclined his person that the supervisor could not see the bal-
lots when they were counted out at the close of the polls.

The circumstance that the contestant received 18 votes less than the
Gartield electors would not seem to be a very serious element in the
charge against the integrity of the returns. It is not surprising that he
did not receive all the Republican votes at this precinct. In truth, it is
rather amazing that he received any at all.

He had been a life-long Democrat, and while connected with the Dem-
ocratic p^rty had vilified the Republicans, and particularly the colored
voters, with extraordinary virulence.

To the complaint that all the inspectors were Democrats, the answer
is obvious. In the first place, the law on this subject is not mandatory.
In the next place, a Republican was appointed, but did not appear j
and in his absence the inspectors made an appointment to fill the va-
cancy. There was no law requiring them to select aRepublican in that
case. They did, however, attempt to do so. But book-learning seemed
to be at a discount among the contestant's supporters, and the attempt
was a failure.

The charge that 55 ballots were cast for the contestant and only 47
counted for him, rests upon 55 so-called depositions offered by the con-
testant.

These depositions are inadmissible for the following reasons:

(1) None of the depositions are certified as required by law.

(2) They constitute testimony in chief, and were taken, in the face of
the contestee's objections, during the last ten days of the time limited
by law.

(3) The notary refused to permit the contestee to cross-examine the
witnesses.

To maintain the assertion that 55 votes were cast for the contestant,
instead of 47, he depends largely on the testimony of a colored man
named Wade Blankeuship. The following extract from his deposition,
printed on pages 234, 235, and 241, will show the character of the wit-
ness on whom the contestant relies for the impeachment and overthrow
of the returns of these polls :

Q. Where did you hold that club meeting before the election f A. On Jack Penny's
place.

Q. How many were present f A. I don't remember before the election ; I don't re-
member how many was present, sir.

Q. About how many f A. Well, at that meeting there was probably sixty-five or
seventy men there.

Q. You know that to be true, do you ? A. Well, I,don't know to be positive, but
there was somewhere in the neighborhood of that.

Q. Can you swear positively that there were sixty men present f A. I wouldn't
swear at all about it ; I was not acting as secretary of the meeting ; I was there only
as a speaker that night, and I paid no particular attention as to how many men were
present.

Q. Did you know the men that were present personally ? A. Yes, sir; I knew every
man in the house ; I reckon there is none out there a stranger to me.

Q. Can you swear there were fifty men f A. Yes, sir ; I would do that, but I wouldn't
want to swear that there were any designative number, simply from the fact that I
don't know how many were there.

Q. If you don't know how many were there why did you swear there were sixty-five
or seventy thore ? A. I say I did not swear that'.

Q. Then you don't understand that what you say here is swearing, do you? A. I
understand that, of course, but I didn't speak definitely as to how many were there.

Q. Can you swear that there were forty men there ? A. I could do it, but I don't
want to swear as to any designated number, general, as I first stated to you.

Q. If you are certain there, was forty there, why do you object to swearing there
was forty there? A. Well from the simple fact that I didn't count them; I just
j udged from the crowd sitting around that there was sixty-five or seventy men that
were present.

136 DIGEST OF ELECTION CASES.

Q. What kind of a house was it ? A. It was a box (little), probably sixteen by
eighteen.

Q. And they were all sitting down, were they * A. No, sir ; they couldn't get seats
to sit.

Q. Yon think then it is probable there were sixty-five or seventy men iti the 'room ?
A. Yes, sir.

Q. Who occupies that house? A. Well, it has been occupied as a school-house for
the last year.

Q. Were there any tables in it? A. A small table there they used for the secretary
of the club.

Q. You are a good judge of numbers, are you not, of men ? A. I don't know I have.
I guess pretty well different times at a body of men.

Q. Can you not swear there were thirty men there ? A. I could do it, but I wouldn't
do it from the simple fact that 1 didn't count the men, and I couldn't say positively
well, I know there was that many.

Q. If you know there was forty men there why are you unwilling to swear there
were thirty men there? A. Well, I gave you my reasons a few minutes ago.

Q. Are you willing to swear there was twenty men there? A. Yes, sir; I would be
willing to do it, though in the mean time I don't want to do it.

Q. Would you swear there was tifteen men there? A. Yes, sir; I would; but I
don't want to do it under the circumstances.

Q. Would you swear there was ten men there? A. I would, but then 1 don't want
to do it.

Q. How many men did you see put in Lowe votes at that box? A. I don't know.

Q. Did you see any men put in Lowe votes at that box ? A. Yes, sir.

Q. How many ? A. I don't know, I told you.

Q. Did you see ten (10) men put in Lowe votes at that box? A. I don't know.

Q. Did you see five men put in Lowe votes at that box? A. I don't know, sir, the
number. I know I saw men vote there, though.

Q. Could you read the tickets in their hands as they voted? A. No, sir.

Q. Could you read the ticket in any man's hand that he voted besides yoiir own ?
A. No, sir ; I don't think I saw a man vote an open ticket there.

The contestee has taken the trouble to impeach Blankenship (p. 517)
But this is wholly unnecessary. He possesses an imagination which a
Falstaff might envy. He sees 57 colored Eepublicans marching to the
polls where only 30 are visible to other men. He sees 65 or 70 men
assembled in a room which he says is 16 by 18, which another says is 14
feet square.

The testimony of Walter Blaukenship, on page 290, shows what kind
of evidence the rest of these witnesses would have furnished, if the con-
testee had been permitted to cross-examine them. He says :

Int. 25. For what offices were the persons to be elected who were on the ticket be-
sides the county officers? A. For our President and for our Senator.

Int. 26. Who was to be elected President and who was to be elected Senator? A.
Mr. Hancock and Mr. Garfteld was running for President's seat, and Mr. Wheeler and
Lowe for Senator.

Int. 27. What other officers were voted for besides Senator and President? A. I
was not particularly caring about the others, which one got it.

Int. 28. You are perfectly certain, are you not, that Mr. Garfield's name for Presi-
dent and Mr. Lowe's name for Senator was on your ticket ? A. I am certain it was,
because I got it from a straight man.

Int. 29. Is that the reason you know the above was on the ticket ? A. Of course ;
I go by that ; yea, sir.

KINLOCK BOX.

Page 1156. We find the following paper upon which the board of
Lawrence County counted 16 votes for Win. M. Lowe; Alex. Heflin was
the returning officer of this county. There is not a particle of proof
that any election was held at that place at all, and this paper is the
only thing that indicates an election was held at

LOWE VS. WHEELER. 137

KINLOCK BOX.

We, the undersigned, judges and clerks, do certify that this is a true list of the-
voters polled at Kinlock, Lawrence County, Alabama :
For President, State at Large :

James M. Pickens, v, v, iiii.
For Vice :

Lalwer S. Beers, v, v, iiii.
District electors :

1st District, C. C. McCall, v, y, iii.

2 DC., J. B. Towusend, v, v, iii.

3 DC., A. B. Griffin, v, v, iii.

4 DC., Hilliard M. Judge, v, v, iii.

5 DC., Theodore Nunu, v, v, iii.

6 DC., J. B. Shields, v, v, iii.

7 DC., H. R. McCoy, v, v, iii.
For Congress, eighth dc. :

Wm. M. Lowe, v,v, iii.
For President and Vice :

Geo. Turner, ii.

Willard Wonern, ii.

Luther R. Smith, ii.

Charles W. Rully, ii.

John J. Martin, ii.

Benjamin S. Turner, ii.

Daniel B. Booth, ii.

Wintield S. Bird, ii.

Nicholas S. McOffee, ii.

James S. Clarke, ii.
For Representative in Congress, from the 8 :

William M. Lowe, ii.

The above is the only return received from the Kinlock box.

The deposition of J. H. McDonald, page 11*38J, shows that upon this
return the county officials estimated 16 votes for William M. Lowe, and
none for Joseph Wheeler.

It will require no argument or authority to show that these returns
cannot be received, and that 16 votes should be deducted from the votes-
returned for William M. Lowe from Lawrence County.

THE UNREGISTERED VOTE.

We now proceed to the consideration of that branch of this case which,
has relation to ballots that were illegal because the voters were not regis-
tered. The contestee gave notice to the contestant by his answer that
he would insist upon the rejection of such ballots. By the constitution
of Alabama the qualifications of voters are distinctly prescribed as fol-
lows : A residence of one year in the State, of three months in th&
county, and of thirty days in the precinct. See article 8, page 142 of
the Code of Alabama.

Section 5 of the same article is in the following language :

The legislature of Alabama passed a registration law in which pro-
vision was made for a complete registration of the voters. The sub-
stance of this law is that the secretary of state appoints a registrar in
each county, and the county registrar appoints an assistant for each
voting precinct or ward in the county. This assistant makes a full
registration list of the voters in his precinct or ward, returns it to the
judge of probate of the county, and the judge of probate furnishes ta

138 DIGEST OF ELECTION CASES.

the inspectors of the election certified lists for each precinct, and these
certified lists constitute the registration lists evidencing who are entitled
to vote. In making up this registration list, the elector is required to
make oath that he has the qualifications of a voter as prescribed by the
constitution of Alabama above stated. The assistant registrars are re-
quired to be present on the day of election for the purpose of register-
ing such persons as may not have registered prior to the election. The
list of those registered on the day of the election is returned with the
poll-lists, &c., kept on the day of the election, to the county canvassers,
and this list kept on the day of the election is filed with the judge of
probate and becomes a part of the records of his office, and thus the
registration lists are kept complete, and constantly show who are entitled
to vote in the various precincts and wards of the county.

The contestee, as above stated, claims that a very large number of
persons were permitted to vote in this district who had not been regis-
tered according to the provisions of this law, and the contestant en-
deavors to escape from this claim of the contestee, not by showing that
the parties who voted were registered as the law requires, but by a
construction of the constitution which we will here briefly state. The
contestant claims that the provision of the constitution above quoted
only means that a party shall not be permitted to vote when the act of
the legislature in distinct terms provides that he shall not be permitted
to vote unless he has been registered. Or, in other words, he claims
that notwithstanding the fact that the constitution provides as already
quoted, and notwithstanding the fact that a registration law has been
enacted, still the party is entitled to vote unless the statute of Alabama
expressly provides that he shall not be permitted to vote excepting when
he is registered.

Now we respectfully submit that this is a perversion of the plain lan-
guage of the constitutional provision. It will be observed that the
language of the constitution is that "the general assembly may, when
necessary, provide by law for registration, * * * and when it is
so provided no person shall vote unless he shall have registered as re-
quired by law."

Now, what do these words, " so provided," refer to ? Plainly to regis-
tration. That is to say, the general assembly was authorized to provide
by law for registration; to determine the mode and requisites of regis-
tration generally and particularly. The registration had reference to
persons who were entitled under the constitution to vote. It has noth-
ing whatever to do with the qualifications of the voter, because those
qualifications are fixed by the constitution itself, and could not be inter-
fered with by any act of the legislature. And therefore the concluding
words of this section are unmistakable in their meaning, "no person
shall vote at any election unless he shall have registered as required by
law " ; and that meaning is that the constitution having fixed the quali-
fications of the voter, this registration law was intended to furnish the
evidence of the right of the party to vote, to wit, his being registered
as a voter according to the forms and requirements of this act of the
legislature. This act of the legislature was provided for by the con-
stitution, not to determine the qualifications of the voter, but to furnish
the qualified voters with the evidence that they were qualified and enti-
tled to cast their ballots ; and the constitution simply provides, and no
other rational meaning can be attributed to it, that registration, and that
alone, shall be evidence of the fact that the party is a qualified voter,
and therefore any person who is not registered is clearly an illegal voter
under the constitution and laws of the State of Alabama. Begistration

LOWE VS. WHEELER.

139

is the act of the voter. If he fails to register it is his own fault, and he
cannot complain, nor can any one else, if his right to vote is lost by rea-
son of non- registration.

After a careful examination of the testimony in this case, we believe
that it conclusively shows that not less than 2,400 persons voted in this
district who were not registered, and that not less than 1,000 of them
voted for the contestant.

We cannot here set out all the testimony on this subject, but submit
a table, giving the precincts,the number of non-registered voters, names
of witnesses, and pages of the record, for convenience of reference :

TABLE No. 2. Unregistered and illegal voters who are proven to have voted for William M.
Lowe for Congress, November 2, 1880. These illegal voters comprise apart of the 12,665
votes which were returned for Wm. L. Lowe.

County.

Precinct.

Pages of record contain-
ing registration lists.

Pages on which poll-list
commences.

Number of voters not reg-
istered proven to have
voted for Win. M. Lowe.

Names of witnesses who prove the
illegality of these voters, or that
they voted for Wm. M. Lowe.

Jackson

Berry's Store

713-716

694

Robert F. Riddle and Robert F. Proctor

720-724

696

pp, 790, 792.
Frederick J. Robinson, p. 784.

Carpenter's

700-703
717-720

690
695

Daniel D. Harris, p. 783.
J. F. Skelton, p. 788.

Hawk's Springs ...

708-710
724-728

692
697

4
12

Samuel Rorex, p. 778.
D. V. Enochs, p. 781.

Scottsboro'

728 739

698

Robert S. Skelton & Wm. B. Bridges,

Bellefonte

704-708

691

pp. 773, 774.
William P. Keith, p. 795.

Madison

Davis's Springs
Meridianville No. 2

Meridianville No. 1
Whitesburg

711-713
626-642

626-642
645-655

693
667

665
668

16
18

89
46

Alexander Moody, p. 794.
Each proven by the voter himself, 268 .
279
A. J. Bentley, p. 513, and J. M. Robin-
son, p. 544.
G. D. Miller, pp. 509, 510|.

Madison

610-625

659

Thomas B. Hopkins, pp. 511J, 512|.

Madison X Radds . .
Maysville

584-592
592-610

658
662

12
55

N. P. Taylor, p, 570.
Thomas J. Taylor, p. 514.

Cluttsville

571-584

656

Wm. M. Douglass and G. W. Smith,

Lawrence

Courtland No. 2

1142-1154
1186

1139
1182

189
18

pp. 546, 542.
Quintus Jones and John W. Battle,
pp. 1081. 1127.
Oliver H. Reid, p. 1131.

Red Bank

1184-1186

1183

J. Milton Gray, p. 1132.

Moulton <

1173-1177

1177

( W. J. Seamans & C. A. Crow, p. 1161.

1196
1179-1182

1182

W. D. Burnett, p. 1159; W. T. Mc-

Limestone . . .

Mooresville

826-831

803

180

Nutt and W. D. Johnson, p. 1166.
John N. Martin, p. 815; Charles Hay-

Slough Beat

823-826

852

ward Jones, p. 848.
Robert Donnell, p. 819; Florentine

Athens

831-835

842

Stewart, p. 829 ; Neil S. Marks, p.
817 ; Nathan B. Crenshaw, p. 849.
Nat. B. Crenshaw, p. 849; Peter J.

Shoal Ford

835-838

856

Creushaw, p. 858.
Franklin J. Pepper, p. 855.

Colbert

South Florence
Florence <

420-427
921-924

441
\ 911

36
39

James O. Murphy, John S. Jenkins,
Sam. Hughley, James P. Murdock,
Thomas Clem, W. P. Stradford,
John W. Brabson, from pp. 1049 to
1053.
C Gilbert Jackson, Wm. J. Kernachan,

Oakland $

926-929

I 918

H. C. Hyde, p. 900.

Center Star

945-946
938

916

B. Joiner, p. 962.

954-955

910

Carver C. Hipp and E. G. Hendrix, pp.

1,027

964, 986

140 DIGEST OF ELECTION CASES.

It will be seen by reference to the testimony that in a very large pro-
portion of the cases where persons voted who were not registered the
testimony is direct and positive that these non-registered persons voted
for the contestant; but if it be conceded that there is doubt as to who
they voted for, then the rule of law as to dealing with such cases is as
follows (see McCrary on Elections, page 298, section 223, first edition) :

In purging the polls of illegal votes, the general rule is that, unless it be shown for
which candidate they were cast, they are to be deducted from the whole vote of the
election division, and not from the candidate having the largest number. (Shepherd
v. Gibbons, 2 Brewst., 128; McDaniel's case, 3 Penn., L. F., 310; Cushing's Election
Cases, 583.) Of course, in the application of this rule such illegal votes would be
deducted proportionately from both candidates, according to the entire vote returned
for each. Thus, we will suppose that John Doe and Richard Roe are competing can-
didates for an office, and that the official canvass shows :

Votes.

For John Doe : 625

For Richard Roe 575

Total vote 1,200

Majority for Doe f 50

But there is proof that 120 illegal votes were cast, and no proof as to the person for
whom they were cast. The illegal vote is 10 per cent, of the returned vote, and hence
each candidate loses 10 per cent, of the vote certified to him. By this rule John Doe
will lose 62 votes, and Richard Roe 57| votes, and the result, as thus reached, is as
follows :

Votes.

Doe's certified votes 625

Deduct illegal votes 62^

Total vote 562i

Roe's certified vote .................. . ....................................... 575

Deduct illegal votes ........................................ . ................ 57

Total vote ...........................................................

Majority for Doe ...................................................... 45

Applying this principle, we here submit a table showing the number
of votes cast for contestant and contestee at various precincts, the num-
ber of non-registered voters, and the pro rata of deductions from each
party on account of the non-registered voters, and the pages of the
record where the registration and the poll-lists will be found, &c. :

LOWE VS. WHEELER.

141

TABLE No. 1. Table showing unregistered voters.

!j Is l|l S 1^1

ll 5 - ^-g ^1 !
If || 111 || 5|| -

|| -s-1 Ij^'J U'll

^ ii *iiii 1^1

s5o M r Sf3 < S2 S -S 'S,

T^ao (Q OrflcS^i-Q WQaobfl

|| ||| jlljl jjjl

ja5 ^a ries ^j MM ja ja5+3
H H H H fcH

'9M.O1 O1
880J p?}OJ JO 90U9J9JJI(J

COCO in rHCOOOi-Hi-HCOCOeO in CO" COCMrH COT< OS

'9JOA S f J9{99qj^ OTOJJ

pgpnpgp 9q oi jaqarafj

^COrHCJOCDO^'COOSOSOSOSCOOS CO tr OOCO**CO^*OCO^<OO^'tCOO 73
rH CO rH rH CO rH * * ^r rH CS CO CO CM O CM CM in * rH rH rH in
iH rH 00

'9^OA B,9.M.O1 UIOJJ

CM oo m oo m co co co * os co oo c co t- co rn oo oo m t- rn eo oo co co co * I-H co

^i in rH CO CO CO t- CO CO CO O CO OO rH t~ t- CO CO CO t- in rH rH rH iH rH CO m T|

^on 99^OA jo J9qmnjj

SrH CO CO rH CO CO OS CO 00 in t~ IO CO CO O O> CM 00 rH rH O IM rH CO O CO rH 00
00 CO 00 CO CO rn CO rH -* h- rH CO O OO in rH O CO CO OS CO CO CO rH CO * CO OS

"o **

ocoeococorH^Qco^eocoosi-i os co TjicomiococsococorHi-icoao

rHrH rH CO rH CO CO CO rH CO CO CO rH CO * rH rH rH 5< rH rH rH CO

g *

^^COCOtOOtOCOt-OcScOOSt- O g S^COrHCOrH CO tOCMCOCOCoS

Hod 'pjoogj jo egSBj;

!-i-*inepcoooosinaomineocoo oo I-H oscooorHcooscorHeooocot-os

"Wi

-UOO pJO09J JO 893BJ

Bxi&g^ssls^fiii^iss&gS^SSSSI

V-v~^^/

. S : | :::::: : ; :^^ :::::::

1|||^ If: iji'H ffl ci jl-g'i.f-SJ -n'o

!H 1 i \ ll

dc56d'S''d^^'*5 "" 2--3 3 s^ a S^j 07-r-

(^(^^^OS'Sl^^OHSSaJ O S OPHH-lcBOOr^r^WpH^^W

d
i

i i 1 1 i i

1 1 sill

142 DIGEST OF ELECTION CASES

Xow, making a calculation upon the basis of 2,400 non-registered
voters, instead of 2,698, as shown by this table, and making the deduc-
tions pro rata, there would have to be deducted from the vote of the
contestant 1,642, and from the vote of the contestee 758, and this of
itself is more than sufficient to overcome all that is claimed by contest-
ant. But we maintain the truth to be that in making this deduction on
account of illegal ballots by reason of non-registration there should first
be deducted 1,000 at least, because the proof shows that that number
voted for the contestant, and that in making the application of the pro-
rata rule it should be confined to the remaining 1,400 votes which the
testimony does not show for whom the votes were cast, and, making the
application to this number, there would be deducted from the contestant,
first, 1,000 which were proven to have been cast for him, and, second,
905 under the pro rata rule, making a deduction of 1,905 votes from his
aggregate and 495 from the aggregate of the coutestee, and if we are
correct in this, this alone is conclusive against the contestant in this
case.

Another rule might be adopted which is more favorable to contestant,
and which we have set out elaborately in our conclusion. It is urged
by Mr. Eanney, of the majority, who has submitted his "views," that
the contestee cannot have advantage of this for the reason, as he
claims, that the evidence is not sufficient to show that these parties
weie not registered. To what special lists he applies his objections
his "views" do not inform us. He speaks of them generally and
makes his objections equally generally. One of his objections is that
" we have nothing to show what names were once on them and been
dropped off or taken off by reason of death, disability, removals, or for
other reasons."

We fail to see the pertinency of this objection. If a man had once
been registered and had been taken off the list by reason of his death,
or by reason of his removal, or by reason of having been convicted of
some crime which disqualified him as a voter, he certainly would not be
entitled to be on the registration list. He would not be a voter, and in
making up the list for the use of the inspectors it could hardly be con-
tended that the judge of probate would put upon the list which was to
be the guide of the inspectors the names of persons who had thus
ceased to be registered. Another objection he makes is, that few of
the lists are verified in the original by the certificate of the registrar.
Another is that these papers that have been put in the record are not
in the form prescribed, with appropriate headings, &c., and he objects to
the poll-lists because some of them do not appear to have been certified
by the inspectors, and for that reason claims that they have no verifica-
tion or identification as genuine poll-lists, and cannot be regarded as
proofs; and he says that in three precincts of Limestone County no
poll-list appeared to have been returned at all, and the judges gave no
certified copy of the same ; but he adds that " the contestee has put in
evidence three papers sworn to by one of the inspectors in each case as
the poll-list, and purporting to be signed by the three inspectors. But
as they never sent them to the probate office as required by law, and no
reason or explanation for the omission given, we do not regard them as
proof or as worthy of credit."

Now, the answer to all this seems to us to be plain. First, as to those lists
which he criticises on account of informality, which have been certified by
the probate judge, the law requires, as we have seen, first, that the judge of
probate shall furnish to the precinct inspectors the registration lists which
are to be their guide in conducting the election. Next it requires that

LOWE VS. WHEELER.

tbe precinct registrar shall be present on the day of the election and regis-
ter such persons as have not theretofore been registered ; next it requires
this additional registration list to be sent up with the returns, in the
same box in which the returns are sent ; next, it requires that this addi-
tional registration list shall be filed with the probate judge, and thus we
have in the office of the probate judge the very identical registration list
which was used and made at that election. The probate judge is by law
the custodian of this list, and whether that list was formal or informal
in its construction, and whether the proper certificate was put upon it or
not, can make no possible difference, so far as the point in controversy is
concerned, because it is the list upon which the election was conducted.
There was no other list, and the fact that the list may have been irregu-
larly made up by the officers whose duty it was to make it could not pos-
sibly render legal a vote that was cast by a party who was not registered
even upon this informal registration list. There is no other way to
prove what that list was than by the certificate of the judge of probate,
except as we will hereinafter state. He was the custodian of the list,
and his certified copy of that which appeared in his office as the list is
all that the law requires.

To the objection that he has made, that some of the poll-lists, to wit r
in three precincts in Limestone County, have not been properly proven,
because they were presented in evidence by the inspector instead of
the judge of probate, we think there is a conclusive answer in this :
That the law of Alabama requires one poll list to be certified by the
precinct managers and sent up with the returns, and another copy of
the poll-list to be kept by the inspector. Now, here are two records
kept, one in the^ probate judge's office, and the other by one of the in-
spectors. And to either of these the contestee had the right to go for
the purpose of procuring these poll-lists, and either one of them is per-
fectly competent as testimony. In respect of the three precincts re-
ferred to, the contestee has seen fit to put in evidence the poll-list
which the law requires to be kept by the inspector, and we entirely
fail to see why that poll-list is not entirely competent as evidence, just
as competent as would be the poll -list that was filed in the office of the
judge of probate. But the testimony of these inspectors and the integ-
rity of these poll-lists is attempted to be called in question, because it
is said that from these precincts no poll-list found its way into the of-
fice of the judge of probate. But the fact that these poll-lists did not
find lodgment in the office of the judge of probate, when it is proven by
the testimony of the inspector who produces the poll-list required by
law to be kept by him that that was the poll-list used at that election,
then we submit that the fact that there is no list in the office of the
judge of probate for such precinct is not upon any principle known to
the law sufficient to defeat the direct evidence above referred to. As
to these registration lists therefore the case stands thus : The contestee
has furnished certified registration lists as they appear in the office of
the judge of probate and poll-lists as to the precincts, except three in
Limestone County, and as to these three he has taken the testimony of
the inspectors in whose custody the poll-lists were, and, in connection
with their testimony, has produced the lists used in those precincts.

The objection taken to the poll-lists furnished by the judge of probate
because the certificate of the inspectors of the election does not appear
thereon is untenable, we submit, for another reason. By an examina-
tion of the statute it will be seen that the inspectors are required to
keep a " poll-list." Then they are required to make a certificate on that
" poll-list,'' and the " poll-list," as we have above stated, is to be filed in

144 DIGEST OF ELECTION CASES.

the office of the judge of probate. Now, the certificate of the precinct
managers that is to be indorsed on the " poll-list " is no part of the poll-
list itself. It is an identification or verification of the poll-list, and when
therefore the judge of probate certifies the "poll-list," it is no part of
his duty to certify the verification of the poll-list, and the absence of this
verification is therefore no evidence that the poll-list was not duly veri-
fied by the certificate of the precinct managers.

But to all of these objections that are made to the sufficiency of this
testimony we have another answer to make. The contestant was duly
notified of these illegal votes, and that their rejection would be contended
for in this contest. The contestee, in support of that, put in evidence
these poll-lists and registration-lists, for the purpose of showing that
persons whose names appeared on the poll-lists did not appear on the
registration lists, thus proving the illegality of these ballots. The con-
testant had ample opportunity afforded him to show that these parties
were registered, if such had been the fact. Specific information was
given him by means of these lists and by direct proof specifying names
as to the persons claimed to be illegal voters, and in not a single in-
stance has he proven or attempted to prove that these parties were
registered as the law requires. If inferences are to be indulged in, in a
case like this, as they are indulged in by the majority in reaching their
conclusions, then the inference from these facts which we have just
stated is irresistible, that what the contestee has asserted as to these
voters is true. If it were not so, if these parties or any of them were
registered, the contestant would undoubtedly have availed himself of
the opportunity to make the proof by producing the necessary evidence,
which must have been within his easy grasp, if the fact had been other-
wise than as claimed by the contestee.

As above stated, conceding to the contestant all that he claims in re-
gard to the matter of rejected ballots, the rejection of these non-regis-
tered voters, which we maintain is clearly commanded by the proofs in
this case, must determine the case in favor of the contestee.

Mr. Eanney, in his report of the majority, asserts that the registration
lists which are placed in evidence are not legal registration lists, that
is, they are not such registration lists as are required by law ; and his
report gives as a reason why this cannot be availed of by Mr. Wheeler,
that " contestee does not set up a want of legal registration as vitiating
the election in any precinct."

Upon this point the majority are mistaken. The allegations of con-
testee upon this point are as follows :

Contestee alleges that at the folio wing precincts of Lawrence County,
viz, Courtland, Red-bank, Avoca, Wolf Spring, Mount Hope, Kinlock,
Landersville, Hampton's, Oakville, and Hillsboro', 450 persons were al-
lowed to vote, and did vote, for contestant, some of whom had no right
to vote at the precincts where they cast their votes, and others who
voted at said precincts were not legal voters, and had no right to vote
at all.

And contestee further alleges that these persons " did not have a right
to vote, for the reason that they had never been registered as required by
law."

The proof shows that there was no legal registration at any of these
precincts, and therefore all these should be rejected from the count, be-
cause where there is no legal registration there cannot be legal voting.

This is unquestioned law, and was lately reaffirmed by the committee
in the case of Finley vs. Bisbee.

LOWE VS. WHEELER. 145

Iii the Florida case the proof shows that the registration lists, so far
as they went, were legal.

In this case the proof shows that there was no legal registration at all
in the precincts of Lawrence County which we have mentioned, and it
further shows that no part of the pretended registration of said pre-
cincts is legal registration.

The allegations of contestee that registration lists are not legal are
more direct and positive than the allegation of contestant that ballots
were rejected, and more direct and positive than the allegation of con-
testant regarding Lanier and Meridianville precincts.

COTJRTLAND BOX NO. 2.

In addition to the foregoing, however, we think it plain that under
the law and the repeated decisions of the majority of this committee
Courtlaud box No. 2 must be rejected from the count. This precinct
was returned, for contestant 419, and for contestee 111. The law of
Alabama requires that upon the closing of the polls the inspectors shall
proceed immediately to count the ballots. Now, in the case of this pre-
cinct, upon the closing of the polls the inspectors proceeded with the
count, and continued until about two o'clock the following morning.
Then the suggestion was made by some one that a mistake had been
made, and thereupon the ballots were all replaced in the box, and a Mr.
Harris, one of the inspectors, who is described by one witness as an
Independent voter, and whose politics are of doubtful complexion, at
least, took that box, with the ballots in it, carried it away with him, and
kept it until the next morning. There is absolutely no testimony proving
or tending to prove that the ballots in that box remained the same dur-
ing this interval.

THE CODE OF ALABAMA.

Section 285 says :

It is the duty of all inspectors of elections in the election precincts, immediately on
the closing of the polls, to count out the votes so polled.

The positive proof shows that^at Gourtland box No. 2 all the inspect-
ors were Greenbackers or Independents, and the record shows that Mr.
Lowe, in announcing himself as a candidate, called upon Greenbackers,
Democrats, and Independents, and upon these alone, for support.

There is up positive proof that Mr. Harris was a Democrat, although
Mr. Lowe's lawyers make a great effort to establish that fact, but it is
positively proved that he had been an independent voter, and had on
four occasions arrayed himself against the Democratic party.

It shows that Joseph Wheeler received as many votes as Mr. Lowe,
but that the inspectors violated the law, and that Wheeler ballots were
abstracted therefrom and Lowe ballots substituted therefor.

The uucoiitroverted proof shows that there were but little over 500
ballots cast at that box, and that the inspectors pretended to be occu-
pied counting these ballots from 5 o'clock in the evening until 2 o'clock
the next morning.

That even after these nine hours' work the inspectors had not com-
pleted the count of the votes.

That they then put the ballots in a rough box, and that one of the
inspectors took the ballots away from the voting place, kept them all
H. Mis. 35 10

146 DIGEST OF ELECTION CASES.

night, and the next day the ballots were illegally counted and a return
made, falsely stating that Wheeler had received 111 votes, and that
Lowe had received 419 votes. .

And the evidence further shows that in truth and in fact Wheeler
received at least 200 votes at that box, and the proof tends to show
that he received at least 250 votes.

We give below some of the evidence regarding this box.

Mr. Eeynolds, a witness examined for William M. Lowe, testified a*
follows, page 443 : " Was United States supervisor of Courtland box
No. 2, at election November 2, 1880." And on page 444 gave the
following evidence :

Q. Was the vote counted out according to law at your box ? A. I suppose it was.

Q. Did you see the vote counted out? A. I saw it; I was in there nearly all the-
time, and watched that.

Q. State how it was counted. A. It was counted out like the votes are generally
counted.

Q. Is it not true that when the votes were pretty nearly counted out that the in-
spectors stopped counting the votes, poured all the tickets back, in a rude box, and
then dispersed, and did not return until the next day? A. Well, they did not get
through counting out until the next day.

Q. Cannot you answer the question, Mr. Keynolds ? A. I know they did not get
through counting, and we had to go back next morning to finish counting.

Q. Where were the ballots left during the night ? A. Well, I think Mr. Harris taken,
them down to the hotel with him. He was one of the officers.

Q. In what did he take them ? A. He took them in the box the box that they were
put in.

Q. What kind of a box ? A. A ballot-box.

Q. Was not it a common candle-box ? A. Well, I didn't examine particularly about
that ; it was just a ballot-box, such as we generally had.

Q. Did it have any lock to it ? A. Well, I don't know ; I did not examine it suffi-
ciently to tell about that, whether it had a lock on it or not ; but it ought to have had
if it did not.

Q. When they returned tke next morning did they not pour all the votes out on the
table? A. Well, they selected them out and put them at different places in different
piles by themselves so they could get along and count them faster.

Q. Were not all the ballots lying on the table at the same time ? A. All of them ?

Q. Yes, sir. A. I don't thiuk they were all out at one time.

Q. Were not most of the ballots lying on the table at the same time ? A. I think
the majority of them were.

Q. How many ballots were there ? A. In all ?

Q. Yes, sir. A. I will have to make a calculation here. How many were there
cast?

Q. Yes, sir; at that box. A. Well, here it is, you can make the calculation.

Q. Well, to give it roughly? A. Mr. Lowe got four hundred and forty-one (441) :
twenty-two (22) off left four hundred and nineteen (419). Twenty-two Greenback
votes. Wheeler one hundred and eleven. My recollection is that was the majority
of the votes out on the table.

Q. Is it not true that when the majority of the votes were lying on the table, that
they were sorted out in piles ? A. Well, they sorted them so they could get along in
counting. They sorted them out; that is, the Democratic votes were sorted out, and
the others by themselves.

Q. Is it not true that they had pretty nearly counted out the vote the night before,
before they stopped ? A. No, sir ; they lacked right smart of it.

Q. How many hundred had they counted out, do you think? A. Well, I don't
know ; did not take any notice of that.

Q. Did they commence in the morning where they left off, or did they commence at
the beginning? A. They counted the whole thing over, my recollection is about it.

Q. Were not people who were not election officers permitted to come into the room
in the morning ? A. Well, I was not there at the time, but I was there nearly all
the time. There might one or two have come in.

Q. Were not people permitted to come into the room during the night, after you-
left there ? A. After we left there ?

Q. Yes, sir. A. I don't know. I was not there ; I left when the box left.

Q. Could not the room be easily entered ? A. Well, I suppose it could ; that room ?
Yes, sir. Don't, think it had any lock to it. I suppose any one could get in there that
wanted to. But then that was after we left, you know. I don't know whether any
one went in or not. The votes were taken down to the hotel.

LOWE VS. WHEELER. 147

Q. Was it not generally understood at that box that Joseph Wheeler was getting a
large vote that day during the election ? A., Well, I was not out much amongst the
people ; I was watching over the box, and did not go out but very little.

Q. Did not the election officers report that that was so ? A. The general opinion
was that he was setting over the Democratic vote there.

Q. Finally, on November the third (3d), when the vote was counted out, was it not
shown that Joseph Wheeler had but one hundred and eleven (111) votes?

(Contestant objects to this question, because he has answered it three times.)

A. Yes, sir.

Walter W. Simmons, a supporter of and a witness summoned by
William M. Lowe, testifies on January 4, 1881, p. 452:

Q. Did you have anything to do with holding of the Congressional election on No-
vember last? A. Yes, sir ; I was supervisor at box number 2, Courtland precinct.

Q. You made out that report two days after the election, did you not? A. I made
it out the next morning after the polls were closed and put it in the office.

Q. Did you not state, Mr. Simmons, two or three times during the day, that Joseph
Wheeler was getting a large vote at your box? A. Yes, sir; I thought you were get-
ting a larger vote than you really did get.

Q. You state that the objection made to the ticket was that it had numerals ? A.
Yes, sir.

Q. Were not those numerals something besides the names of the persons to be voted
for and the offices to which they were to be chosen ?

(Contestant objects to this question, because it calls for the opinion of the witness.)

A. I suppose it is something besides the names of the electors.

Q. Is it not true, Mr. Simmons, that the inspectors commenced counting the vote,
and that they then poured all the votes back in the box and dispersed for the night ?
A. Well, they counted until about 2 o'clock in the morning, I believe, and some of
them discovered that they had made a mistake, and they just concluded they would
bundle up, and commence and recount the whole box the next morning ; Mr. Harris
took the box, and went to the hotel that night and locked it up in the room with him,
and met the next morning and finished counting.

Q. Didn't some of the inspectors or clerks get sick ? A. One of the clerks got sick
Mr. Branch.

Q. When they met the next morning, were you present to se them count? A.
Yes, sir.

Q. Is it not true that they poured all the ballots on the table, and sorted them out ?
A. I think they did ; some one suggested that they could get through quicker by
counting them that way ; they poured them on the table, and sorted the tickets, to
get the Republican tickets to themselves, and the Greenback tickets to themselves,
and the Hancock Democratic tickets to themselves.

Q. Is it not true that this room where you held the election was an open room that
people could enter at pleasure ? A. Well, I suppose they could if they had tried; it
was a pretty shabby old concern ; doors were kept closed, I believe, all the time until
they closed up.

Q. You have been actively engaged in politics, have you not, in this last canvass ?
A. Yes, sir ; I have taken a great interest in politics this last year.

Q. You were a strong supporter of Colonel Lowe, were you not? A. Yes, sir.

Q. Mr. Simmons, did or not the friends of General Wheeler make the same kind of
efforts, so far as you know, to secure the colored vote that friends of Colonel Lowe
did ? A. I suppose they did.

Q. No man's vote was refused because he was a colored man ? A. Not that I know of.

Q. You stated, I believe, Mr. Simmons, that the inspectors counted the vote until
2 o'clock at night? A. I think it was about 2.

Q. And then adjourned until the next morning; then they had another count? A.
Yes, sir.

Q. Were the votes that you say that were thrown out the same the night before
that they were the next morning ? A. Yes, sir.

Q. The box you stated was taken away by a Mr. Harris and left in his custody be-
tween the count at night and the count the next morning ? A. Yes, sir.

Q. What were Mr. Harris's politics? A. Well, sir, he is a Democrat, I believe; al-
ways has been.

Q. Was he a friend and supporter of General Wheeler? A. Yes, sir; I believe he
was.

Q. By General WHEELEH. Don't you know he voted for Billy McDonald and for
Houston? A. My opinion is that he voted for McDonald, but I don't know. My
opinion is he voted for Houston for tax collector, too.

Q. Both of those men were opponents to the Democratic party, were they not ? A %
Yes, sir.

148 DIGEST OF ELECTION CASES.

Q. Is not it your opinion that Mr. Harris voted for Mr. Houston three years ago,
also ? A. Yes, sir ; it is.

W. W. SIMMONS.

J. J. BEEMER, page 1128, testifies as follows :

Q. Please state your name, age, where you live, and how long you have resided
there. A. J. J. Beeiner is my name ; I am in my forty-lirst year; I live at Courtland ;
.all my life, except six years in Huntsville, when I was a boy, and the time I was ab-
sent in the war.

Q. Please state who were appointed inspectors of the election held at box No. 2
in Courtland on November 2, 1880, for member of Congress and Presidential electors,
and state their politics. A. James Montgomery, an avowed Greenbacker; J. J.
Ueemer, an independent voter; and John H. Harris, also an independent voter.

Q. Please state if you are well acquainted with the voters of Courtland precinct,
and their political sentiments. A. I think I am well acquainted with the voters of
the Courtland precinct and their political sentiments.

Q. For whom was James Montgomery and M. M. Butcher for Congress? A. I know
that James Montgomery was for Lowe, and my belief is that Butcher Avas also for

iiowe.

* * * # **

Q. Is it true or not that when you first counted out the ballots after the polls were
closed a mistake was made in the count, and that you then arijourned over until next
<lay, and that Mr. Harris took charge of the box until you met next morning! A. It
as true.

In answer to another question, Mr. Beemer testified, page 1129:

General Wheeler got between seventy-five and one hundred white votes at that box,
and the colored men who voted for him were known to be for him.

T. H. Jones, page 1087, testified:

The politics of the inspectors at Courtland box No. 2 was as follows: One a Green-
Ibacker, and the other two had been accustomed to vote split tickets.

The evidence shows that there were no ropes put up, as required by
Saw, and that the persons who were distributing Garfield and Wheeler
tickets were, in most cases, close to the window, and saw the men hand
in their votes, and the proof is positive and uncontradicted that Gar-
field and Wheeler ballots were voted which were not counted.

Green Jones, pages 1065 and 1066, testifies that he was at Court-
land box No. 2 all day November 2, 1880, working in the interest of
Joseph Wheeler for Congress, and that he got twenty-five colored men
to vote for General Wheeler on the Garfield and Arthur ticket. He
testifies that he issued these twenty five tickets, and saw them put the
tickets in the hands of the inspectors; that a great many colored men
voted that kind of ticket at that box that day; that there were a num-
ber of p'ersons, both white and colored, working with the colored people
to get them to vote the Garfield and Wheeler ticket that day.

T. N. Kirk swore that the colored men thought they had as good a
right to vote for Wheeler as for Lowe, as long as both were on the Gar-
field ticket. (See pages 1067 and 1068.)

Kirk also swore that he voted for Wheeler, and got ten other colored
men to vote for him also at Courtlandt box No. 2.

Joe Owens, page 1069, testifies as follows:

I gave out seventeen tickets with the name of Joseph Wheeler on them, who promised
to vote the ticket, and, I think, they all voted those tickets ; but I know seven of them
voted the Wheeler ticket for Congress, at Courtland box No. 2, because I saw them
vote the tickets which I gave them.

He testifies that all these men were colored men.

Robert Beard, page 1072, testified that he got three colored men to
vote for Wheeler at boxes 1 and 2 at Courtland, and that he voted for
Wheeler himself; that a great number of colored men voted the Wheeler
ticket; and that a number of persons, both white and colored, wore

LOWE VS. WHEELER.

working to get them to vote for the Garfield and Wheeler ticket; and
that the impression was that most of the colored men were voting that
ticket.

Henry Clay Jones, page 1074, testifies that he got thirty-six colored!
men to vote the Garfield and Wheeler ticket at Courtland box No. 2,
Nov. 2, 1880, also that a great number of colored men voted that ticket
that day; that this was a general impression, and that he knew it to be-
true because he saw them vote it.

James Brown, page 1077, testifies that he voted a Garfield and
Wheeler ticket, and got another colored man to vote the same kind of
ticket, and that he was a colored man.

Quintas Jones, page 1080, testified that he got seven colored men to
vote the Garfield and Wheeler ticket.

Isaac Jones, page 1088, testified that he got ten colored men, includ-
ing himself, to vote the Garfield and Wheeler ticket at Courtland box
No. 2, on November 2, 1880.

Shadrach Kirk, page 1090, testified that he got four colored men, in-
cluding himself, to vote the Garfield and Wheeler ticket on November
2, 1880, and that most of the colored men were voting that ticket that
day.

Patrick Jones, page 1092, testified that he was certain he got seven
colored men, including himself, to vote the Garfield and Wheeler ticket
at Courtland on November 2, 1880.

Frank Clay, page 1095, testified that he got nine colored men, includ-
ing himself, to vote the Garfield and Wheeler ticket at Courtland box.
No. 2.

Malachi Swope, a colored man, page 1098, testified that he voted the
Garfield and Wheeler ticket.

Ben Jones, page 1108, testified that he got thirteen colored men to>
vote the Garfield and Wheeler ticket at Courtland box No. 2, on No-
vember 2, 1880.

Corodell Swoope, colored, page 1111, testified that he voted the Gar-
field and Wheeler ticket at Courtland on November 2, 1880.

The evidence of T. H. Jones, pages 1086 and 1087 of the record, is as
follows:

Question. Where were you on election day, November 2, 1880? Answer. At the
Courtland box.

Q. In whose interest did you work that day f A. I was working with the colored
men to induce them to vote for Joseph Wheeler.

Q. Please state how many tickets you gave out to colored men who promised to vote
for Joseph Wheeler. A. I did not count them; I suppose fifty or sixty.

Q. Are you satisfied that these fifty or sixty tickets were voted by colored men ?
A. I am satisfied these tickets were voted as well as a man could be satisfied with
anything which happens in ordinary affairs of life. I was near the polls and gave out
the tickets to colored men who promised to vote them, and saw many of them vote
them at the polls ; there were no ropes stretched, so we were enabled to go up close to>
the window where they put in the votes; those that I had doubts about I noticed that
they voted the ticket I gave them ; those that I had perfect confidence would vote the
ticket I gave them 1 did not take pains to observe.

Q. Have you a ticket similar to those you gave the colored men to vote ? If so, please
mark your initials upon it and make it an exhibit to your deposition. A. I have
done so.

150 DIGEST OF ELECTION CASES.

For Electors for Presiden t

and Vice- President of

the United States :

GEORGE TURNER.
WILLARD WARNER.
LUTHER R. MARTIN.

CHARLES W. BUCKLEY.

JOHN J. MARTIN.

BENJAMIN S. TURNER,

DANIEL B. BOOTH.

WINFIELD S. BIRD.

NICHOLAS S. M'AFEE.

JAMES S. CLARKE.

For Representative in
Congress from the Eighth
Congressional District : ,

JOSEPH WHEELER.

Q. What were these tickets understood to be by the colored men ? A. They were
understood to be tickets with Garfield and Arthur electors, with the name of Joseph
Wheeler on it for Congress; they all understood that in voting the ticket they were
voting for Garfield and Arthur for President and Vice-President, and for Wheeler for
Congress.

Q. Was it or not at box No. 2 that these tickets were voted ? A. The great bulk.of
them voted at box No. 2, but some few of them voted at box No. 1. I voted at box
No. 1 late in the evening, when the voting was pretty much all over. I voted a Han-
cock ticket, with Wheeler on it for Congress.

Q. State the names of all the' inspectors at box No. 2. A. James Montgomery, John
H. Harris, and J. J. Beemer.

Q State the politics. A. Montgomery is a Greenbacker, and the others have been
accustomed to vote split tickets.

Q. State the names of the inspectors at box No. 1 and their politics. A. When they
commenced the inspectors were "Samuel Ashtou, a Republican ; A. J. Morris, a Re-
publican; and James Galey, a Greenbacker; but they changed and put in T. A.
Tathaui, a Democrat, in place of A. J. Morris, Republican, who, however, remained
and acted as clerk.

Q. Was there a 'Republican supervisor at box No. 1 ? A. Yes.

Q. Was there a Democratic supervisor at box No. 1 ? A. No.

Q. Please state what the general impression was when it was announced on Novem-
ber 3, the day after the election, that Joseph Wheeler had but one hundred and eleven
votes' counted for him at box No. 2. A. It was a matter of great surprise, as from the
way the votes went in it was thought Wheeler votes would be two or three times as
large as was counted for him.

Q. Please state the politics of the party opposed to the Democratic party for the
last nine years. A. In 1871 and 1872 the candidates for the legislature and county
officers called themselves Independents, and it was the same up to about 1877 ; then
they assumed the name of Greenbackers. There have been no candidates for county
officers for many years on square Republican principles, except Peter Walker and
John Bell, who ran for the legislature in 1878. At each President's election, the Re-
publican electors have been voted for in this county.

Q. Please state what influences you understand have been and are brought to bear
upon the colored people to induce them to vote for the Greenback and Independent
candidates. A. The influence of fear and intimidation, to a very great extent, is
brought, to be >r ; they are taught that if they do not vote for these Greenback and

LOWE VS. WHEELER. 151

Independent candidates, pursuant to the direction of their leaders, that the least pun-
ishment which would be inflicted upon them would be ostracization, and that they
vrould be denounced by their colored associates as traitors to their race; they also have
fear of bodily harm and harm to their property unless they vote the ticket dictated
by their leaders. In 1878 Peter Walker and John Bell tried to run for the legislature
on the Republican ticket, and Peter Walker particularly was so threatened and in-
timidated aud abused that he was afraid to openly distribute his tickets. I was in-
formed that he was so terror-stricken and alarmed that he was in great fear that his
house would be burned and that he would be killed. Samuel Haynes, a very intelli-
gent colored man, has just told me that the prevailing influence brought to bear upon
the colored man to make him vote for the Greenback party, or some party opposed to
the Democratic party, was the conviction and constant threats that they would be
-ostracized by their race unless they did so. He also said that no matter how beloved
and popular a candidate might be, all his prospects would be blasted if he was in sup-
port of the Democratic party.

Q. Do colored men when they vote the Democratic ticket want it kept a secret ?
A. Yes.

THOS. H. JONES.

Witness:

Jos. F. HILL.

This conclusively shows that there was fraud at this box. It shows
that Joseph Wheeler got at least 100 to 150 Garfield and Arthur votes.
f The proof also shows that Wheeler received at least 75 to 100 white
Democratic votes at that box.

There can be no question but that this box must be rejected.

The proof comes from the witnesses and friends of Colonel Lowe.

As some point was made regarding the politics of Mr. Harris, who
constituted himself the custodian of this box, we have taken some trou-
ble to review the subject, and we present the following summary of the
evidence which bears on this subject.

Before proceeding to discuss this evidence we must remark that the
proof shows that this evidence was all written down by a stenographer
(who was employed by Mr. Lowe), aud was afterwards written out in
long-hand when there was no notary public present.

Therefore, in justification to Mr. Reynolds and Mr. Harris, we may
conclude that it was not written down as it was given.

In discussing the evidence we simply discuss what Mr. Lowe's law-
yers and stenographer have placed in the record.

Mr. Lowe's witness Mr. Reynolds, who the record shows to be very
earnest for Lowe, who swore he lived in Courtland, which is 43 miles from
Huutsville, and who went there voluntarily, passing through parts of
four counties, viz, Lawrence, Morgan, Limestone, and Madison, to tes-
tify as a witness for Mr. Lowe, when the law did not require him to
leave his own county to give evidence; who puts in his evidence, page
446, the disgraceful Stevenson circular ; who, when he saw how impor-
tant it was to Lowe to prove the integrity of the box, testified, page 444,
in answer to Wheeler's first question,' that the vote at that box was
counted out according to law, and to the second question that he saw
the count, and to the third question that it was counted as votes are
generally counted.

Mr. Reynolds's own evidence shows that he knew that this statement
was not correct. It shows that he knew that the vote was counted the
next day in violation of law, and that the manner of counting was in
violation of law.

He knew there were what were called straight Republican tickets,
straight Democratic tickets, and Garfield and Wheeler tickets.

He knew that to sort them out, and count as he finally admits they
did, would be an injury to Wheeler.

He evades the fourth and fifth questions, and it was not till the sixth
question came that he admitted the box was carried off by Mr. Harris.

152 DIGEST OF ELECTION CASES.

Then follows a series of answers which appeared to be efforts to pre-
vent the development of the fact tbat the box was without a lock.

At bottom of page 445 he says he thought Mr. Harris was a Democrat,,
but the committee must remember that many witnesses who supported
Colonel Lowe testify that they thought both they and Colonel Lowe were
Democrats.

Richard H. Lowe swears, page 160, that he was a Democrat, and a
supporter and admirer of Colonel Lowe, and anxious to see him elected ;
and further he says of Colonel Lowe, page 166, "I think he is a Jeffer-
sonian Democrat," and on page 164f he says Colonel Lowe claimed to be
a Democrat of the old style a Jeffersonian- Jacksonian Democrat.

R. H. Lowe also swears, page 173 :

I have heard Colonel Lowe declare that any one who said that he was a Republican
was a liar.

Q. You have heard him frequently declare that, have you not ? A. I have heard him
declare that ; how frequently I cannot remember.

And on pages 166 to 172 of his deposition appear the manifestoes of
Colonel Lowe, which certainly show extreme opposition to the principles-
advocated by the Kepublican party.

R. H. Lowe also exhibits Colonel Lowe's manifesto of September 20 r
1880, in which he appeals for support to Greenbackers, Democrats, and
Independents, and does not even ask Kepublicans to vote for him.

William C. Summers, a supporter of Lowe, a witness for Lowe, and an
inspector of election, testifies, page 1353, that he is a Jackson Demo-
crat, and Colonel Lowe claimed to be a Democrat, and that he ha dread
some speeches of Colonel Lowe in which he claimed to be a Democrat,
and heard his supporters talk so; and on page 1349J O. H. P. Williams,.
a witness for Colonel Lowe, testified twice that Lowe in his speech
abused the Republican party.

Mr. Milton also swears, page 320, he was a Democrat, and yet he waa
a worker for and voted for Colonel Lowe. He also swears that Deputy
Marshal Stockton was a Democrat, but he also voted for Lowe, and he
and two other Lowe men were appointed as United States marshals to>
control the election at Hunt's Store.

Even Hertzler tried to pass himself off as a supporter of Wheeler, in
the hope it would help out his false testimony about Lanier's, and help-
to throw out that box.

He swears, page 184, in answer to the inquiry if he did not vote for
Lowe : "No; I always vote the Democratic ticket." He afterwards was
compelled to admit that he voted for Lowe, but said he always consid-
ered Lowe as a Democrat.

This character of evidence, which runs through the record, show*
that Lowe's lawyers tried to make it appear that all the election officers
who called themselves Democrats were supporters of Wheeler, when the
fact was frequently the contrary.

Such evidence as this shows what was meant by their Democracy.

There is not a particle of positive proof that Mr. Harris supported or
voted for Wheeler.

It must be borne in mind that this evidence of Mr. Eeynolds was writ-
ten down in short-hand by Mr. Buell, the friend of Colonel Lowe ; yet
even with this, Mr. Reynolds informs us of his opinion of the character
of the man who became the box custodian.

He says of him, bottom of page 445 : "He might say he voted for one
man, and then not do it."

Mr. Reynolds also says, page 445 :

The general opinion was that he (Wheeler) was getting over the Democratic votfr
there.

LOWE VS. WHEELER.

The question, and what purports to be an answer to the question,
found on bottom of page 447, is easily explained. Every lawyer who>
has examined witnesses knows that frequently when asked a question
they repeat the question in an interrogative manner to be certain they
understood the question correctly.

This is particularly the case with reluctant witnesses who are trying;
to make the best show possible for the party in whose interest they are
being examined. This was eminently the case here. Mr. Reynolds re-
peated the question verbatim, and Mr. Lowe's friend, the stenographer,
writes down Mr. Reynolds's question, omitting the interrogation mark,
and thus makes it appear that it was his answer.

This could not be corrected, because no one but the stenographer
could read the short-hand notes ; and therefore no one but the stenog-
rapher could know with any certainty what was meant by his short-
hand marks.

Mr. Simmons, a Republican and a Lowe man, and supervisor, and
witness for Colonel Lowe, was more willing to admit that the box was
carried off by one of the inspectors, and also says, page 453J, that the
next day they sorted out the tickets into three piles Republican ticket*
to themselves, Greenback tickets to themselves, and Hancock tickets-
to themselves.

This certainly impaired Wheeler's chances to get the Garfield tickets
with his name on them counted for him.

When Wheeler heard this he felt it so keenly that he sent in his sworn
protest against the counting of said box, which is found on bottom of
page 1062.

Had the contestee known of the other irregularity would he not have
included that in his protest?

Simmons mentions, page 455, three different elections where he states-
it as his opinion that Harris voted against the Democratic party.

On page 453 he states that he said two or three times during the
day that Wheeler was getting a larger vote than he did get, and that
he thought so too.

Now, Mr. Beemer swears positively, page 1128, that Harris was an
Independent voter; and Mr. Jones swears, page 1087, that Mr. Harris
was accustomed to vote split tickets. Also T. A. Tatham swears, page
1106, that John H. Harris, who acted as inspector at Courtland box No.
2, claimed to be an Independent voter.

He also says that Harris supported Sam Houston and W. B. McDon-
ald and Alex. Heflin in opposition to the Democratic party; and it will
be observed that this same Heflin swears, page 460, that he too was a
Democrat, but admits that at the last election (namely Nov. 2, 1880) he
voted the Greenback ticket ; he also admits he was elected sheriff on
the Greenback ticket in August, 1880. (See pp. 460, 461.)

Now, this man Heflin, after giving testimony against Wheeler which
shows falsity on its face, tries to bolster it up by trying to create an in-
ference that he was a Democrat. He was just as much a Democrat as
men who supported him three months before, when he ran as a Green-
backer for sheriff. This shows the object of Lowe's witnesses in calling;
the inspector a Democrat. They wished to create an impression that
the Courtland box was not manipulated to the detriment of Wheeler.

Had Mr. Harris been put on the stand we cannot say what his evi-
dence would have been. Mr. Reynolds says, "He might say he voted for
one man and then not do it." Contestee could not have been expected
to make Mr. Harris a witness.

The fact that the box was carried off in violation of law impeached it^.

154 DIGEST OF ELECTION CASES.

and it was Mr. Lowe's duty to have shown that its integrity was main-
tained. Mr. Lowe's lawyers were fully informed in the commencement
of the taking of testimouy-in-chief that the box was carried off and
kept all night unlocked. If it had been possible for Mr. Lowe to have
procured evidence to sustain the integrity of the box it seems to us he
would certainly have done so.

We respectfully submit that the evidence conclusively proves that
Courtland box No. 2 was managed entirely by men who were at least
not the friends and supporters of Wheeler.

Some may have been Hancock men, but certainly the evidence does
not show they were Wheeler men.

When the ballots were partly counted out one of these men claimed
they had made a mistake, and to correct this they put all the ballots in
a, rough box, and Mr. Harris carried the box to his room, kept it all
night, returned with it the next morning, when it appears from the evi-
dence the ballots were easily though illegally counted in a very short
period, when a report was made showing 4i9 votes for Lowe and 111
votes for Wheeler.

Mr. Lowe's friends admit that these inspectors worked from five
o'clock, the time the polls closed, until two o'clock next morning, and
during those nine hours they claim they had counted less than six hun-
dred ballots.

These men wish the committee to believe that they acted with proper
rapidity, and yet failed to count out 60 ballots an hour, when it was
evident that all these ballots could have been easily counted out in two
or at most three hours.

Above and beyond this Mr. Lowe's witness Mr. Simmons, page 453,
swears that after counting nine hours they discovered they had made a
mistake, and Mr. Lowe's other witness, Mr. Reynolds, swears, page 444,
that after the nine hours they yet lacked right smart of completing the
count.

Is it not clear that there was wrong connected with this box?

These ballots could have been easily counted out in two or three
hours, and by seven or eight o'clock a correct report could have been
completed, and yet we find these men at two o'clock in the morning had
done nothing but count a part of the ballots, and the only result of these
nine hours' work was the discovery that they had made a mistake.

The committee cannot see how it was possible these friends of Colonel
Lowe discovered a mistake, when Mr. Reynolds says they lacked right
smart of counting all the ballots

Does it not show that all this dallying of nine hours gave an oppor-
tunity to corruptly tamper with the ballots?

Does it not show that the mistake discovered was that Wheeler had
more ballots than some one wished him to have, and some one therefore
found it necessary to secretly fix up the box to meet the requirements of
Mr. Lowe's managers?

They did not have Wade Blankenship or William Wallace there to
examine the wrists and sleeves of free Americans and compel them to
vote for Mr. Lowe, and the evidence is conclusive that at least a hun-
dred Democrats and at least a hundred Republicans voted for Wheeler.

The Wheeler ballots were in the box, and the difficulty of changing
them with five or six people present was staring them in the face.

We respectfully submit that there has never been stronger evidence
"before Congress assailing the integrity of a box than we have here pre-
sented.

If Mr. Reynolds had been a friend of Wheeler would he have gone

LOWE VS. WHEELER. 155

voluntarily 43 miles to testify for Mr. Lowe f Would he have resisted
each effort to develop these facts, as his evidence shows he did ? (See
page 444.) His anxiety was so great that he swore, page 447, that the
votes were counted fairly. He says :

I watched over it myself.
I saw it was done well.
I was in the house.

And then he afterwards admits this was not true, and he swears, top
of page 448:

I was not absent but a few minutes during the counting in the daytime in the last
count.

And top of page 445 he says :

Well, I was not there all the time, but I was there nearly all the time.

We could go on with this discussion, but the House will certainly
dmit that it requires nothing further to show that this box must be
ejected.

The evidence that the ballots were tampered with at this poll is very
mch stronger than at "Arredonda poll" (case of Bisbee v. Finley), and
ive might add that it is stronger than any other case before this com-
rittee.

The violation of law by the inspectors is proven by Mr* Lowe's wit-
lesses, and most of the evidence is given by Republicans.

It proves positively that there was palpable violation of the law and
lag-rant fraud at this box.

This fraud was distinctly charged in the answer to the notice of con-
jst, and it was proved by the evidence of numerous witnesses, and not
one word of the evidence is in any way controverted.

Harris was not called as a witness. Where he took the box ; how he
tept it ; whether any person had access to it other than himself; whether
himself examined it, or did anything with it or with the ballots in it
luring these hours that it was away from its proper custody and not
subject to proper supervision as to all these things the evidence is

total blank, except as above alluded to and hereafter stated. The
lext morning Mr. Harris brought back what purported to be the box
took away with him, and the contents of that box, whatever they
were, were counted ; but we contend that the proof shows that the bal-
lots did not remain the same, because the testimony proves that at that
poll the contestee received at least 200 votes, whereas there was only
returned for him 111, thus showing that the count as made did not cor-
respond with the ballots as cast. We submit, therefore, that this box
must be rejected, and this will deduct from the contestant 419 and from
the contestee 111. Now, the box being rejected, as it certainly must be,
then, according to all the rulings of the majority of the committee in
other cases, and according to the plain law on this subject, the parties
are remitted to the proof of the ballots actually cast for them respect-
ively, and it being proved that the contestee received 200 votes at that
poll, this number should be added to his aggregate vote.

Before concluding we feel it our duty to allude to the character of
evidence which Mr. Lowe has presented to the Committee on Elections.

Evidence by deposition is in derogation of common law. It is only
)y virtue of statute that such evidence can be used in any judicial tri-
bunals.

The supreme court of Pennsylvania, using the language which we
iud in every elementary work on evidence, said:

156 DIGEST OF ELECTION CASES.

The taking of testimony by deposition is at best but a very imperfect way of arriv-
ing at the truth; every precaution should, therefore, be taken to guard against
abuses.

We approve of this expression, and think that evidence taken with
disregard of the statutory requirement should not be received.

We have alluded to this subject in referring to the depositions taken
at Lanier's, but we think it requires a more special attention.

The following are the provisions of the Revised Statutes of the United
States material to the point now under consideration :

SEC. 122. 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 pres-
ence and in the presence of the parties or their agents, if attending, and to be duly
attested by the witnesses respectively.

SEC. 127. All officers taking testimony to be used in a contested-election case, whether
by deposition or otherwise, shall, when the taking of the same is completed, and with-
out unnecessary delay, certify and carefully seal and immediately forward the same
by mail addressed to the Clerk of the House of Representatives of the United States,
Washington, D. C.

The corresponding provisions of the judiciary act of 1789 are in the
following words :

And every person deposing as aforesaid shall be carefully examined and cautioned
and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by
him or her given after the same shall be reduced to writing, which shall be done only
by the magistrate taking the deposition, or by the deponent in his presence. And the
depositions so taken shall be retained by such magistrate until he deliver the same
with his own hand into the conrt for which they are taken, or shall, together with a
certificate of the reasons as aforesaid of their being taken, and of the notice, if any,
given to the adverse party, be by him, the said magistrate, sealed up and directed to
such court and remain under his seal until opened in -court.

The provision that the deposition must be reduced to writing in the
presence of the officer is common to the contested-election law and the
judiciary act of 1789.

It is obvious, therefore, that decisions of the Federal courts on the
provision of the judiciary act for the writing out of the deposition will
be authorities in cases which may come before this committee under the
corresponding provision of the statute relating to contested elections.

In Bell v. Morrison, 1 Peters, 351, Judge Story, delivering the opinion
of the court

Held that under section 30 of the judiciary act a deposition is not admissible if it
is not shown that the deposition was reduced to writing in presence of the magis-
trate.

In Edmonson v. Barrett, 2 Cranch C. C., 22S, the plaintiffs attorney
offered in evidence on the trial the deposition of John Marshall, of
Charleston, South Carolina, taken before the Hon. John Drayton, dis-
trict judge of the United States. The certificate of the judge was in the
following words :

DISTRICT OF SOUTH CAROLINA, ss :

On this 28th day of May, 1818, personally appeareth the under-named deponent,
John Marshall, of Charleston, merchant, before me, the subscriber, John Draytou, dis-
trict judge of the district aforesaid, and being by me carefully examined, cautioned,
and sworn in due form of law to testify the whole truth and nothing but the truth
relating to a certain civil cause, &c., &c., he rnaketh oath to the deposition above
written, and subscribes the same in my presence, the said deposition being first re-
duced to writing by the deponent.

The attorney for the plaintiff contended that it was to be presumed
to have been so written because the law required it.

LOWE VS. WHEELER. 157

But the court uuauimously sustained the objection and rejected the
deposition.

In the case of Pettibone v. Derringer, 4 Wash., 215, tried in the cir-
cuit court of the United States for the 3d circuit, at Philadelphia, in
1818, before Justice Washington, of the Supreme Court of the United
States, and District Judge Peters, objection was made on the trial to
the introduction of a deposition on the ground that the officer who took
that deposition had not certified that it was reduced to writing by the
witness in his presence. The court sustained the objection and held

That a deposition taken under the thirtieth section of Jthe judiciary act cannot be
used unless the judge certifies that it was reduced to writing either by himself or by
the witness in his presence.

In the case of Rayner v. Haynes, Hempst., 689, decided by the United
States circuit court for the 9th circuit, in 1854, depositions offered by the
attorneys for the defendant were objected to on the ground that the mag-
istrate failed to state that the depositions were reduced to writing in his pres-
ence, and the objection was sustained by the court.

In the case of Cook v. Burnley, 11 Wall., 657, when the defendants'
case was reached in the course of the trial, the defendants offered to
read a deposition taken under section 30 of the judiciary act. There
was no certificate by the magistrate that he reduced the testimony to
writing himself or that it was done by the witness in his presence. The
deposition was excluded by the district court. The Supreme Court or
the United States said :

There is no certificate by the magistrate that he reduced the testimony to writing
himself or that it was not done in his presence, which omission is fatal to the depo-
sition.

In Baylis v. Cochrane, 2 Johnson (N. Y.), 416, Chief Justice Kent, de-
livering the opinion of the court, said :

The manner of executing the commission ought not to be left to inference, but
should be plainly and explicitly stated. It would be an inconvenient precedent and
might lead to great abuse to establish the validity of such a loose and informal sys-
tem. Matters which are essential to the due execution of the commission ught to be
made to appear under the signnture of the commissioners. Among these essential
matters is the examination of the witness on oath by the commissioners and the re-
ducing of his examination to writing by them, or at their instance and under their
care. We are accordingly of the opinion that the judgment of the court below ought
to l)e affirmed.

While the particular facts in this New York case differ from the facts
of the case now on trial, it is quite unnecessary to suggest the forcible
application of the doctrine of that case to this.

The case of Summers v. McKiin (12 S. & R., 404) is a very strong au-
thority on the point now under consideration. There was at the time
no law in Pennsylvania requiring the deposition to be reduced to writ-
ing in the presence of the officer. There was no rule of court to that
effect. The only regulation on the subject was a rule of court requiring
the deposition to, be taken before a justice. But Chief Justice Tilghman,
delivering the opinion of the court, said :

The third bill of exception contains two distinct points. The first point ia on the
admissibility of the deposition of George Leech ; several exceptions were made to
this evidence, but there was one which was decisive ; and as it involves a prin-
ciple of great importance in practice, I am glad that an opportunity is ottered
to the court of settling it. This deposition was taken under a rule of court betore
a justice of the peace of Clearfield County, but it was drawn up in the city of Lan-
caster, from the mouth of the witness, by Mr. Hopkins, counsel for the defendant, and
then sent to Clearfield County and sworn to there. Now, although the character ot
the counsel in the present instance puts him above all suspicion of unfair dealing, yet
it would be a practice of most dangerous tendency if depositions so t*ken were to be

158 DIGEST OF ELECTION CASES.-

admitted as evidence. The counsel of the party producing the witness is the last
person who should be permitted to draw the deposition, because he will naturally be
disposed to favor his client, and it is very easy for an artful man to make use of such
expressions as may give a turn to the testimony very different from what the witness
intended. I know that depositions are sometimes taken in this manner by consent of
parties ; and when the counsel on both sides are present the danger is not so great,
but in the present case there was no consent, nor was the counsel of the plaintiffs
present. ''The rule of court is that the deposition shall be taken before a justice. It
ought, therefore, to be reduced to writing from the mouth of the witness in the pres-
ence of the justice, though it need not be drawn by him ; and in case of difference of
opinion in taking down the words of the witness the justice should decide. In chan-
cery, if the counsel of one of the parties draws the deposition before the witness goes
before the commissioners, it will not be permitted to be read in evidence. (1 How.
Ch., 360.) This certainly is a good rule. The taking of testimony by deposition is at
best but a very imperfect way of arriving at the truth : every precaution should,,
therefore, be taken to guard against abuses. It is very clear to me that the mode in
which the deposition of George Leech was taken is subject to great abuse, and should
be put down at once. I am of opinion, therefore, that was very properly rejected,

See also the following cases : United States v. Smith, 4 Day, 121 ;
Eailroad Co. v. Drew, 3 Woods C. Ct., 692 ; Beale v. Thompson, 8 Cranch r
70; Shankriker v. Beading, 4 McL., 240 ; United States v. Price, 2 Wash.
C. Ct., 356 ; Hunt v. Larpin, 21 Iowa, 484 ; Williams v. Chadbourue.
6 Oal., 559; Stone v. Stillwell, 23 Ark., 444.

The j)roof in this case shows :

]ST.

That 49 depositions found on pages 34 to 266 and 302 to 452 of the
record in this case have no certificates at all, and the proof shows that
they were not written out in the presence of the commissioner before
whom it is claimed they were taken.

2D.

That exhibits were attached to some of these depositions which the
witnesses did not see.

3D.

That exhibits were attached to depositions which were not correct
Copies of records which they purport to represent.

4TH.

That a transcript from the probate judge of Morgan County was
changed, and that matter was written upon said transcript after it
reached the hands of Mr. Lowe or his agents or attorneys, arid the mat-
ter written thereon was made the basis of an argument in contestant's
brief.

STH.

That a false exhibit was filed with the record and printed in the
record following the deposition of Lowe Davis, which false exhibit was
made the basis of an argument in contestant's brief.

CTH.

That the affidavits attached to the motion to suppress show that the
certificate attached to the deposition of Mr. Lowe was not written out

LOWE VS. WHEELER.

and attached to said deposition until several days after the date it pur-
ports to have been so written out and attached.

TTH.

That the so-called deposition of William Wallace, James Joaes, John
Kibble, Alexander Jainar, and 50 other witnesses were never legally
signed.

STH.

That the 110 so-called depositions found on pages 1264 to 1340 of the
record are without any certificate whatever, and there is nothing in the
record to show that any of the witnesses were sworn, or that any of
the evidence was written down in the presence of any commissioner.

9TH.

That the so-called depositions taken before E. P. Shackleford are not
certified under his seal as required by law.

10TH.

That 171 so-called depositions which it is claimed were taken before
K. W. Figg, esq., were not certified and sealed and forwarded by mail
addressed to the Clerk of the House of Representatives.

The record shows that said so-called depositions reached the Clerk of
the House of Representatives through a corporation called an express
company. It shows they were in a box which was not sealed in any
way whatever.

It also shows that many of said depositions remained out of the
hands of the commissioner before whom it is claimed they were taken
from two to three months before being so illegally transmitted to Con-
gress.

llTH.

The record also shows that depositions which were taken before A.
W. Brooks, found on pages 331 to 338, were not taken at a time which
the law allowed said depositions to be taken, and it further shows that,
contrary to law, they were transmitted to the Clerk of the House of
Representatives by a corporation called an express company, and not
by mail, as required by law.

12TH.

The record shows that fifty witnesses examined before A. J. Bentley,
at Meridianville, were examined without giving contestee notice, as
required by law.

That Mr. Lowe's attorneys gave contestee notice they would take said
evidence at or near Pleasant Hill, and upon said notice they proceeded to
and did take said evidence at Meridianville, six miles from Pleasant Hill.

That when the place of taking evidence was finally discovered by Mr.
Wheeler's attorney, the commissioner refused to allow him to cross-
examine some thirty witnesses who were examined after his arrival j
and it further shows that Lowe Davis, the attorney for Mr. Lowe, wrote

160 DIGEST OF ELECTION CASES.

down the evidence, and in some cases wrote it down to convey a different
and contrary meaning from that given by the witnesses, and the record
shows that this illegally-taken evidence was not certified as required by
law, and that it was not transmitted to Congress as required by law.

The record also shows, after Mr. Wheeler had facilitated Mr. Lowe's
attorneys in taking evidence by acknowledging service to their notices
to take testimony, these same attorneys used most extraordinary and
unwarranted means to embarrass and delay Mr. Wheeler in his efforts to
take testimony, and that by such means they in some instances stopped
the contestee in his efforts to take testimony.

Mr. Wheeler made and filed proper and seasonable motion to suppress
these depositions, supporting by affidavits such allegations as were not
apparent on the record. "*

We think the 49 depositions which purport to have been taken at
Huntsville before R. W. Figg, esq., and the 110 which purport to have
been taken before him at Lanier's, and the 30 which purport to have
been taken before A. J. Bentley, at Meridianville, should be suppressed
and not considered in this case.

CONCLUSION.

We now make the following summaries of the legal votes to which
the contestant and contestee are respectively entitled under the law
and the evidence.

With regard to the illegal ballots counted for Mr. Lowe we find that
1,294 are proven by the inspectors or officers of election at the 32 pre-
cincts where they were cast, which are fully cited in a table which is
found on page 54 of this report.

These witnesses were under the laws of Alabama the custodians of
these ballots, and in most cases they corroborate their recollections by
counting the ballots in the presence of the commissioner, and they then
take one or more of the ballots from the box and put them in evidence
by attaching them to their depositions.

There is some proof that in addition to the 1,294 illegal ballots there
were also counted for Mr. Lowe as many as 1,734 illegal Weaver and
Lowe ballots, but as the proof regarding these latter ballots is not as
satisfactory as that regarding the former, we conclude to only consider
the 1,294 proven by primary evidence.

Kinlock box.

The proof on this box is so positive and uncontradicted that we do
not think the House will hesitate to deduct 16 votes from Mr. Lowe.

Unregistered voters.

An examination of the record shows that over 3,000 persons' names
are found upon the poll-lists in 29 different precincts, which names are
not found in the registration lists.

We also present a table, marked No. 2, by which we refer the House
to direct and specific proof showing that 1,027 unregistered voters
voted for Mr. Lowe.

Mr. Lowe was unable to and failed to prove that a single unregistered
voter voted for Mr. Wheeler.

Table No. 2 gives pages in the record where the evidence is found,
and also the name of at least one witness whose testimony is relied upon.

It is also shown by Table No. 1 that at the 29 polling places mentioned
in said table 2,698 illegal unregistered persons voted.

LOWE VS. WHEELER.

But to do the contestant no injustice we deduct 298 from the 2 698
unregistered voters, leaving 2,400 persons who voted at these 29 pre-
cincts, and who were not registered.

At these 29 polls Lowe had returned for him 5,630 and Wheeler had
returned for him 2, 625 votes.

Now, in the absence of proof for whom these illegal votes were cast
the law says that one of three rules must be adopted

1st. Either deduct all from him who had a majority at each poll.

2nd. Or reject the poll.

3rd. Or deduct the illegal votes pro rata.

The first rule would deduct 2.400 from the vote of William M. Lowe.

The second rule would deduct 5,630 from the vote of William M.
Lowe and 2,625 from the vote of Joseph Wheeler, leaving 3,005 as the
balance or total reduction of the vote of William M. Lowe.

By the third or pro rata rule there would be deducted from the vote
of William M. Lowe 1,642, and from the vote of Joseph Wheeler 758,
leaving the balance or net amount to be deducted from the vote of
William M. Lowe at 884, which is the least possible deduction which
can be made from the vote of William M. Lowe under either of these
three rules.

To show that the pro rata rule does Mr. Lowe more than justice we
cite the House to Table No. 2, which shows that 1,027 unregistered per-
sons voted for him ; and 541 of the persons included in Table 2 are the
same as those included in Table No. 1.

For instance, at Courtland box No. 2 it is proved that 189 unregis-
tered persons voted for William M. Lowe, and on the pro rata rule he is
only charged with 111 ; therefore we are entitled to add 78 bad votes to
-the 994 (changed to 884) bad votes in Table No. 1.

By adopting the same plan with regard to other boxes we make out
Table No. 3 :

Table No. 3.

Number of unregistered persons which are included in Table No. 2,
and who are proven to have voted for William M. Lowe, and who are
not included in the 994 (changed to 884) persons referred to in Table
No. 1.

Precinct.

Brickville 18

Courtland, No. 2 r 78

Whitesburg 31

Meridianville, No. 2 18

Carpenter's 3

KedBank 4

Hawk's Springs 4

Bishop's 1 12

Scottsborough 11

Davis' Springs 16

Maysville 55

Moiilton 16

Athens 16

Centre Star 12

Cave Spring 22

Cluttsville 13

Meridianville,' No. 1 89

Hampton's 6

Mooresville 17

Slough Beat 36

Shoal Ford 5

South Florence 4

486
H. Mis. 35 11

162 DIGEST OP ELECTION CASES.

Table No. 2 includes several boxes which are not included in Table
No. 1, and we find that 486 unregistered men who are not included in
Table No. 1 voted for Mr. Lowe.

Now, adding these 486 votes in Table No. 3 to the 884 obtained by the
pro rata rule (see Table No. 1), we find that the total number of unregis-
tered votes which must be-deducted from the vote of William M. Lowe
amounts to 1,370.

We therefore conclude that according to the proof in this case there
should be deducted from the vote of William M. Lowe 1,370 illegal un-
registered votes.

As we have concluded that Courtland box No. 2 should nofbe counted,
and as 189 of these unregistered votes were cast at that box, we must
deduct these 189 illegal votes from the 1,370, leaving 1,181 unregistered
votes exclusive of Courtland box No. 2.

But to be still further certain, and do the contestant full justice, we
make a further arbitrary reduction of 81 votes, and we decide to deduct
1,100 illegal unregistered votes from the vote of William M. Lowe.

Non-residents.

The proof shows that 81 non-residents of the State of Alabama voted
for Mr. Lowe, and we think they should be deducted from the vote of
William M. Lowe.

It is claimed by Mr. Lowe that the 9 votes which the inspectors at
Lanier's deducted from Mr. Wheeler and the 2 votes which they de-
ducted from him were not corrected by the county officers. This would
make a difference of 7 votes against Mr. Wheeler.

The proof with regard to this matter is tainted by the fraudulent ex-
hibit which appears following the deposition of Lowe Davis.

It is also claimed by Mr. Lowe that Flint precinct was not counted in
the returns of Morgan County, and that this precinct gave him 17 ma-
jority, but the proof regarding this matter is contradictory, and is tainted
by a forgery which the affidavit of the probate judge shows was in-
dorsed upon it after it went in the hands of Mr. Lowe or his attorneys.

If both these were allowed it would make a difference of 24 votes in
favor of Mr. Lowe.

Minors.

The proof shows that 16 minors voted for Mr. Lowe, and we think
that number should be deducted from his vote.

SUMMARY No. 1.

Votes returned for Mr. Wheeler 12,808

Votes returned for Mr. Lowe 12,765

From which deduct votes cast for Mr. Lowe by persons who

were not registered 1, 100

Deduct illegal ballots proved to have been cast and counted

for Mr. Lowe 1,C94

Deduct non -residents proven to have voted for Mr. Lowe 70

Deduct minors proven to have voted for Mr. Lowe 10

Deduct Kinlock box, illegally returned for Mr. Lowe 16

Deduct Courtland box No. 2 (Lowe's majority) 308

9, 798

Mr. Lowe's legal vote 9,967 9,967

Mr. Wheeler's majority 2,841

WITHERSPOOX VS. DAVIDSON. 163

SUMMARY No. 2.

Votes returned for Mr. Wheeler 12 808

Votes returned for Mr. Lowe "" I2~7ti5

From which deduct votes of unregistered persons by the Mc-

Crary or pro rata rule 884

Deduct illegal ballots proved to have been cast and counted for

Mr. Lowe \ 294

Deduct non-residents proven to have voted for Mr. Lowe.... ' 70

Deduct minors proven to have voted for Lowe 10

Deduct Kinlock box, illegally returned for Mr. Lowe 16

Deduct Courtland box No. 2 (Lowe's majority) 308

' 2,582

Mr. Lowe's legal Vote 10,183 10,183

Mr. Wheeler's majority 2 625

Now, if we deduct 7 votes from Mr. Wheeler at Lanier's and add 17
votes to Mr. Lowe at Flint, it will make a difference in Mr. Lowe's favor
of but 24 votes, and if we should give him all he asks, counting for
him the 525 votes which he claims were rejected, and the votes he claims
to have proven at Meridianville and Lanier's, Mr. Wheeler's majority
would still be nearly 2,000.

It seems to us there is no question but that under the rule adopted
by the majority of this committee they should count for Mr. Wheeler
the 200 votes which the proof positively shows were cast for him at
Court-laud box No. 2.

This would make Mr. Wheeler's majority 200 greater than shown by
the tables.

We therefore recommend the adoption of the following resolutions :

Resolved, That Joseph Wheeler is entitled to a seat in this House as
a Kepresentative in the Forty-seventh Congress from the eighth Con-
gressional district of Alabama.

Resolved, That William M. Lowe is not entitled to a seat in this House
as a Eepresentative in the Forty-seventh Congress from the eighth Con-
gressional district of Alabama.

GEORGE W. WITHERSPOON vs. ROBERT H. M. DAVIDSON.

FIRST CONGRESSIONAL DISTRICT OF FLORIDA.

DISMISSED FOR WANT OF PROSECUTION.

JUNE 6, 1882. Mr. BANNEY, from the Committee on Elections, sub-
mitted the following

EEPORT:

The Committee on Elections, to idiom was referred the'case of Witherspoon
vs. Davidson, first Congressional district, Florida, respectfully submit
the following report :

In this case there was no notice of contest or answer, and no evidence
taken legally which the committee had before them. Contestant ap-

164 DIGEST OF ELECTION CASES.

peared and produced an affidavit, a copy of which is appended to tin's
report, with the counter-affidavit of coiitestee. (Exhibits 1 and 2.) The
committee caused a notice to be sent and delivered to the counsel named
in contestant's affidavit, asking him to produce the papers in his hands,
but he has omitted and declined to do so, he having taken no notice of
the letter sent him, a copy of which is annexed, save to acknowledge
the receipt of same. (Exhibits D, E, F.)

CJontestee exhibited to the committee the copies of the notice of con-
test served upon him and his answer thereto, together with" a replica-
tion and amended notice, copies of which are annexed (Exhibits A, B,
C), and moved to dismiss the proceedings. It was claimed and it ap-
pears that the notice of contest was insufficient and inadequate. It al-
leges certain frauds very generally, but does not set up or allege that
contestant was elected. The replication enlarges the notice, however,
and obviates some if not all of the objections.

The committee are of the opinion that contestant's failure to prose-,
<cute his contest arose from the causes which he sets forth in his affida-
vit But they see no way of procuring the papers, or of investigating
the case further, unless the House take the matter in hand and do it in
their own way, either by sending a special committee to Florida to take
the evidence or otherwise.

There is nothing which implicates contestee in any of the wrongful
proceedings referred to.

The committee report the facts, and recommend that the contestant
have leave to withdraw his contest without prejudice.

EXHIBIT.

DISTRICT OF COLUMBIA,

City of Washington:

Personally came and appeared before the undersigned, a notary public in and for
the District and city aforesaid, George W. Witherspoou, who, being first duly sworn
according to law, deposes and says that he was the candidate of the Republican
party at the regular election held on the2d day of November, 1880, lor Representative
In Congress from the first Congressional district of the State of Florida. That at
and during the time fixed by law for the registration of the legal voters of said State
and district gross irregularities and frauds were committed upon his supporters and
partisans by the supporters and partisans of his opponent. R. H. M. DaA r idson, in this,
that many supporters of Davidson were illegally and fraudulently registered, and
jiny of the'said deponent's supporters were illegally denied registration. That after
the registration books were closed the supporters and partisans of his opponent, the
said Davidson, erased and struck from the registration books and records unlawfully
the names of many of the supporters of deponent, and by this means deprived them
of the right to vote.

He further deposes and says that gross frauds were committed at said Congres-
sional election by the supporters and partisans of his opponent, the said Davidson, by
stuffing the ballot-boxes with tissue ballots, false and fraudulent countings of votes,
particularly in the counties of Jefferson, Taylor, Leon, Jackson, Escambia, and Levy.

And that after he was defrauded out of his election by the methods herein described
lie served notice of contest as prescribed by law upon his opponent, and received au-
tswer thereto, and made due preparation and diligence to prosecute his contest as is by
the act of Congress in such cases made and provided. That he employed as his at-
torney T. W. Brevard, esq., and paid him $125 as a retaining fee to prosecute his case
against his opponent, the said Davidson, and that the said Brevard utterly failed to
-do so, and betrayed him and sacrificed all his interests in the contest ; and your depo-
aient has reason to believe and does believe that the said Brevard entered into col-
lusion with and conspired with Davidson for the purpose of defeating him, deponent,
an his contest. He took from him, and declined and refused to return to your depo-
nent, his notice of contest, the answer thereto, and other valuable papers and evi-
dences essential to the successful prosecution of the case.

He furtler deposes and says that his witnesses were intimidated and prevented from

WITHERSPOON VS. DAVIDSON. 165

appearing to testify in his behalf by threats of violence, and of being discharged from
labor, and of being ejected from rented lands and houses, and by refusals of stock and
implements to cultivate and gather their crops, and other threats of persecution and
proscription, if they should attempt to testify in behalf of your deponent.

In proof of these facts your deponent cites particularly aViot instigated in Madi-
son County by the supporters and partisans of the Democratic party for the purpose
of intimidating witnesses, at which riot one Patterson was killed, on account of which
many arrests were made and the parties cast into jail, which had the effect of intimi-
dating a large number of deponent's witnesses to an extent which made it impossible
to induce them to testify in his behalf.

He further deposes and says that in some cases (that of Christie particularly) the
officers of the law before whom appointments were made to take testimony, and
where witnesses had been secured at great trouble and expense, the officer failed or
refused to attend and hear testimony taken. By these and other methods only known
to the lawless and mob-ridden communities of the South your deponent was defrauded
out of his election and denied the right of exposing and proving the fraud, under the
act of Congress made and provided in such cases. Therefore he prays that a com-
mittee be appointed with authority to proceed to Congressional district aforesaid,
and make a thorough investigation and report on the conduct and result of said
election, with the view of ascertaining and determining who was lawfully elected as
Representative in the Forty-seventh Congress of the United States from said first
district of the State of Florida.

GEO. \V. WITHERSPOON.

Subscribed and sworn to before me this 13th day of December, A. D. 1881.
[SEAL.] WM. T. S. CURTIS,

Notary Public, District of Columbia.

EXHIBIT 2.

Contested-election case, first Congressional district, State of Florida, House of. Rep-
resentatives, first session.

WITHERSPOOX

1?8.

DAVIDSON.

DISTRICT OF COLUMBIA,

City of Washington, to wit:

On this day, before me, Frank Gait, a notary public of the District and city afore-
said, personally appeared Robert H. M. Davidson and made oath that he has read
the affidavit of George W. Witherspoon, contestant in aforesaid case, from the first
Congressional district of Florida, and dated the 13th day of December, 1881 ; that all
charges contained therein of fraud or intimidation of voters or witnesses, or that three
was any cause of danger to any person who might testify in said Witherspoon's be-
half, affiant believes to be absolutely untrue; that the riot to which said contestant
refers took place in the other Congressional district in said State of Florida, during
which riot the colored people killed one white man, and no colored man was hurt ;
that contestee was ready and willing, at any and all times and places, to attend the
taking of depositions, either by himself or counsel, after due notice being had ; but
That the contestant made no effort, to affiant's knowledge, to take any depositions,
but did take some ex parte affidavits without the knowledge of affiant ; that in so>
far as contestant seeks to implicate contestee as being in collusion with one of the
alleged attorneys of said contestant P. W. Brevard, the charge is absolutely and un-
conditionally false in every shape and form ; and that the contestee never heard of
the loss of any paper, as alleged in the aforesaid affidavit of George W. Witherspoon,
of date December 13, 1881, until said affidavit was read, in his presence and hearing,
before the Committee on Elections of the House of Representatives some time during
the current year, 1882.

Given under my hand this 26th day of April, 1882.

R. H. M. DAVIDSON.

Sworn and subscribed to before me this 26th day of April, A. D. 1882.
[SEAL.! FRANK GALT,

Rotary PulHc*

166 DIGEST OF ELECTION CASES.

EXHIBIT A.
Notice of contest.

GEORGE W. WITHERSPOON

vs.
EGBERT H. M. DAVIDSON

x. )

SIR : You are hereby notified that I shall contest your election as a Representative in
Congress from the first Congressional district in the State of Florida, comprising the
counties of Escambia, Santa Rosa, Walton, Holmes, Washington, Jackson, Calhouu,
Franklin, Liberty, Gadsden, Walknlla, Leon, Jefferson, Taylor, Lafayette, Levy,
Hernando, Hillsborough, Manatee, Polk, Sumter, and Monroe, for the Congressional
term for which you claim to have been elected from said district at the general elec-
tion held in said State and district on the second day of November, 1880, for the fol-
lowing reasons, to wit :

First. That the board of county commissioners in the respective counties aforesaid,
and in the said district, on the first Monday in October, 1880, revised the registration
list in the said district and counties aforesaid, filed by them in the office ot the clerk
of the circuit courts in said district and counties, and erased therefrom the names of
Republican electors who were living, and who had not ceased to reside permanently
in the county, or who was otherwise disqualified to vote, and on the third Monday
in said mouth and year the said county commissioners, in said respective counties,
refused, neglected, and omitted to hear the complaints of those who claimed that
their names had been improperly erased from the said registration lists, and pre-
vented said voters from declaring, under oath, before the said board of county com-
missioners in said counties, at any time between said first day of October, 1880, and
the 22nd day of October, 1880, both inclusive, their qualifications as voters under the
laws of the State of Florida, in such cases made and provided.

Second. That the clerk of the circuit courts in the respective counties aforesaid,
between the said first Monday in October, 1880, and the said 22ud day of October,
1880, both inclusive, refused, neglected, and omitted to replace the names of the said
electors on said list of registered voters in the respective counties as aforesaid, as re-
quired by the statutes of the State of Florida in such cases made and provided.

Third. That the said clerk of the said courts, and the deputy clerks by them ap-
pointed as deputy registration officers, refused, neglected, and omitted to register in
the election districts in the aforesaid district and counties the names of Republican
electors, as required to do by law, contrary to the statutes of the State of Florida in
such cases made and provided.

Fourth. That on the said first Monday of October, 1880, the said board of county
commissioners in the respective counties as aforesaid refused, neglected, and omit-
ted to appoint three intelligent and discreet electors, resident in their respective coun-
ties, who could read and write, and who represented both political parties, as inspect-
ors of election for the polling place or precinct in each election district in the re-
spective counties as aforesaid, for which they were appointed, and said respective
boards of county commissioners refused, neglected, and omitted, to publish, or post in
a conspicuous place in each election district, twenty days before the 2nd day of No-
vember, 1880, the names of the three inspectors appointed for the polling place in
such election district, as required by the statutes of the State of Florida in such cases
made and provided.

Fifth. That the clerks of the circuit courts in the respective counties as aforesaid
refused, neglected, and omitted, within three days after the first Monday in October,
1880, to give notice by publication or otherwise, setting forth therein the boundary
lines of each election district, and that the electors in each election district should
register with the deputy clerks or registration officers therein named for the election
district, and with no other, as required by the laws of Florida in such cases made
and provided.

Sixth. That the said clerks of the circuit courts in the respective counties aforesaid
refused, neglected, and omitted, five days before the said 2nd day of November, 1880,
to prepare and open for inspection in their offices respectively separated lists of the
persons entitled to vote at the several voting places or precincts in the said counties,
as required to do by the laws of Florida in such cases made and provided.

Seventh. That the inspectors of election at the respective polling places or pre-
cincts, in the respective counties as aforesaid, between the hours of eight (8) o'clock
in the forenoon and sunset in the evening on the said second (2nd) day of November,
1880, refused to admit inside the said polling places a representative of the Repub-
lican party, who was named by the adherents of said party, at said respective polling
places in said district and counties, contrary to the statutes of the State of Florida
in such cases made and provided.

WITHERSPOON VS. DAVIDSON. 167

Eighth. That the said inspectors of election at the respective polling places or pre-
cincts in the counties aforesaid received ballots other than plain white paper, upon
which was printed the names of the candidates of the Democratic party, and placed
said ballots in the ballot-boxes, and canvassed and counted said ballots as having
been lawfully voted, contrary to the laws of Florida in such cases made and provided!

Ninth. That the said inspectors of election at the respective polling places or pre-
cincts in the respective counties aforesaid refused, neglected, and omitted to ad-
minister the oath requisite under the laws of Florida after challenge to Republican
electors who claim to be qualified voters, and refused, neglected, and omitted to re-
ceive the vote of such electors who oifered to take the oath in such cases made and
provided by the laws of Florida.

Tenth. That the said inspectors of election in the respective polling places or pre-
cincts in the counties aforesaid refused, neglected, and omitted to administer the
oath provided by law to Republican electors who claimed that they had duly registered
according to law, but whose names did not appear upon the registration books
of the respective polling places or precincts in said counties, and refused to receive
their votes, contrary to the laws of Florida in such cases made and provided.

Eleventh*. That the said inspectors of election in the respective polling places or
precincts in the counties aforesaid refused, neglected, and omitted to have nothing
in the respective ballot-boxes at the opening of the respective polls, but placed Dem-
ocratic ballots therein, and then refused to publicly open and expose the said ballot-
boxes, contrary to the laws of Florida in such cases made and provided.

Twelfth. That at the respective polling places in the counties aforesaid, Republican
electors were, through the action of Democratic inspectors, hindered and prevented
from voting, and Democratic electors were permitted to vote tissue ballots, and bal-
lots known as the little jokers, which were canvassed and counted by said inspect-
ors, and the result thereof returned to the board of county canvassers as the lawful
result of said election, contrary to the laws of the State of Florida in such cases
made and provided.

Thirteenth. That the said inspectors of election in the respective polling places or
precincts in the counties aforesaid refused, neglected, and omitted to deliver to the
representative of the Republican party, after due demand being made therefor, upon
the completion of the count, a statement of the result of the election, contrary to
the laws of the State of Florida in such cases made and provided.

That by means of fraud and violations of the election laws, together with intimi-
dation and menace, the Republican electors of said Congressional district were de-
prived of and prevented from the exercise of their suffrages, and the majority which
you now claim to have received was obtained through fraud, intimidation, and
menace, and through the action of Democratic inspectors of election, in the respect,
ive polling places or precincts in the first Congressional district in the State of Florida,
on the second (2d) day of November, 1880, in stuffing ballot-boxes with Democratic
ballots, in voting, counting, and canvassing tissue ballots and little-joker ballots,
and in permitting Democratic electors known to them to vote many ballots more than
one, and upon other names than their own, and by keeping Republican voters from
the polls through violence, and by preventing those who were at the polls from vot-
ing, as herein set forth.

GEORGE W. WITHERSPUON,

Contestant.

MONTICELLO, FLORIDA,

November 25, 1880.

EXHIBIT B.
Answei:

GEORGE W. WITHERSPOON >

r.
ROBERT H. M. DAVIDSON. S

The undersigned, Robert H. M. Davidson, having received fiom George W. Wither-
*ppon a notice that he contests his election as the Representative in Congress from the
first Congressional district of Florida, on the second day of November, A. D. 1880, to
the Forty-seventh Congress, in answer thereto says:

1. He objects and exceptsto the said notice, and protests against the same as vague,
indefinite, and uncertain, and insufficient under the statute.

2. He further objects to the same because it does not particularly specify the grounds
upon which the said contestant relies in his contest.

168 DIGEST OF ELECTION CASES.

3. He further objects because the said contestant does not allege, nor attempt to
show therein, that he was elected as a Representative in Congressatthe said election,
nor that he had a majority or plurality of the votes cast ; but if anything is charged
it is that no legal election was held in the said district, and if not, the said contestant
has no claim to the seat.

4. He further objects because the contestant does not put him upon notice of any
particular place where the irregularities are said to have occurred, nor does he specify
a single county or election precinct where he lost any votes by the allteged irregulari-
ties.

5. He further objects because the contestant does not specify any counties or elec-
tion precincts where the alleged fraud, intimidation, menace, &c., occurred, nor does-
he state where Republican electors were deprived of or prevented from the exercise
of their suffrage, nor at what election precinct Democratic inspectors are alleged to-
have stuffed ballot-boxes with Democratic ballots, to have voted, counted, and can-
vassed tissue ballots and " little-joker" ballots, to have permitted Democratic electors-
to rote more than once, and upon other names, and to have kept Republican voters-
from the polls through violence, and to have prevented those at the polls from voting.

6. He further objects because the contestant does not charge that he suffered any
detriment or injury by the alleged irregularities.

Subject to the foregoing objections and exceptions and protest, and demanding the
full benefit thereof now and at all times hereafter during these proceedings, the cou-
testee answers the said notice, and says in denial of the several specifications :

1. The revisal of the registration lists on the first Monday in October, 1880, was-
made under the laws of the State of Florida, in the several counties of the district ;
and he denies that on the third Monday in said month the county commissioners in
the said respective counties refused, neglected, or omitted to hear the complaints of
those who claimed that their names had been improperly erased from the said regis-
tration lists, and he further denies that the said county commissioners prevented said
voters from declaring, under oath before their several boards in any of said counties
between the dates mentioned, their qualifications as voters under the laws of Florida,,
as charged.

2. He denies that the clerks of the circuit courts in the said counties, between the*
dates mentioned, refused, neglected, or omitted to replace the names of any legal and
lawful electors on said lists of registered voters, and if any did so refuse it was because
they had failed to comply with the laws of Florida governing such cases.

3. He denies that the said clerks and the other registration officers refused, neg-
lected, or omitted to register in the election district in the said counties the names of
any legal or lawful electors, whether Republican or Democrat, who made due and
lawful application to be registered under the laws of Florida governing such cases.

4. He denies that the said boards of county commissioners on the first day of Oc-
tober, 1880, refused, neglected, or omitted to appoint three intelligent and discreet
electors, resident in their respective counties, who could read and write and who-
represented both political parties, as inspectors of election at the several precincts
referred to, and further denies that said boards refused, neglected, or omitted to pub-
lish the names of such inspectors as required by law. And if there had been any
such failure or neglect it could not have prevented any election or injured the con-
testant under the laws of Florida governing such cases.

5. He denies that there was any failure to publish the boundary lines of the election
districts or the notice to the electors of the place for them to register, as charged.

6. He denies that the said clerks refused or neglected to prepare separate lists of
the electors in each precinct or to open the same for inspection, as charged.

7. He denies that the inspectors refused to admit, at the time specified, a represent-
ative of the Republican party, named by the adherents of said party, inside the said
polling places, as charged.

8. He denies that the inspectors of election at the voting places or precincts in said
counties received unlawful Democratic ballots, as charged, or counted or canvassed
any such unlawful ballots.

9. He denies that there was any refusal, neglect, or omission on the part of such in-
spectors of election to administer any lawful oath to any one challenged, who was
entitled to or who demanded to take the same, under the laws of Florida governing
such cases.

10. He denies that there was any refusal, neglect, or omission on the part of said in-
spectors of election at the said polling places to administer any lawful oath to any
elector, Republican or Democrat, who claimed that he had duly registered, but whose
name did not appear upon the registration books. He further denies that there was-
any unlawful refusal to receive the votes of persons who claimed that they had a right
to vote, but whose names did not appear upon such lists. On the contrary, he
alleges that all duly qualified voters who were registered according to law were al-
lowed to vote by said inspectors of election.

11. He denies that there was any refusal, neglect, or omission " to have nothing in

WITHERSPOON VS. DAVIDSON.

the respective ballot-boxes at the opening of the respective polls," and further denies
that they placed Democratic ballots therein, or that they refused to open and exhibit
such ballot-boxes in public as required by law.

12. He denies that at such polling places the Democratic inspectors hindered or pre-
vented any one from voting who was lawfully entitled to vote, and denies that they
unlawfully permitted Democratic electors to vote tissue ballots and ballots known a*
"little jokers," whatever they may be. He further denies that any such votes were
unlawfully or improperly canvassed or counted by such inspectors or that any unlaw-
ful or improper return of any such votes was made, contrary to the laws of Florida in
such cases provided.

13. He denies that there was any refusal, failure, or omission upon the part of such
inspectors of election to deliver to the representatives of the Republican party at the
several voting places in the district a statement of the result of the election after due-
demand therefor. And if there was any such refusal the contestant did not suffer any
injury or lose any votes thereby.

14. He denies that any Republican electors of said Congressional district were de-
prived of or prevented from the exercise of their suffrages by means of fraud or viola-
tions of the election law or by intimidation or menace. He further denies that his-
majority was obtained through fraud, intimidation, or menace, or through any action
of Democratic inspectors at such election in stuffing ballot-boxes with Democratic
ballots, in unlawfully voting, counting, or canvassing tissue ballots or little-joker bal-
lots. He further denies that such majority was obtained by the action of the said in-
spectors in permitting Democratic electors to vote many ballots or upon other nain-.-
than their own, or by keeping Republican voters from the polls through violence, or
by preventing these who were at the polls from voting, as charged.

15. He further denies generally, as he has already done or attempted to do specific-
ally, all allegations of irregularity, violation of law, fraud, intimidation, or menace
against any Democratic officer or elector at any of election precincts or voting places
in any of the counties in the said Congressional district at the said election, or pre-
vious thereto, as made by the contestant in his notice of contest, and denies all the
statements in the several paragraphs of the said notice made to invalidate his elec-
tion or traduce the number of votes received by him as Representative in Congress
for said district at such election ; and the contestee, having denied the facts alleged in
the contestant's notice, sets forth the following other grounds upon which he rests the
validity of his election.

16. That he received a majority of the legal votes cast at the said election for such
Representative in the Forty-seventh Congress; that the official canvass of the said
election, as made by the State canvassing board, and published according to law,

showed that he received votes and the contestant votes, and this result was-

reached by a public canvass without objection or protest on the part of contestant.

17. That at the several voting precincts in the county of Escambia there was intimi-
dation upon the part of the Republican party through its adherents, used and employed
to force and compel colored citizens who were qualified electors to vote the Repub-
lican ticket, and for the contestant, and the vote of the contestant/ was largely in-
creased in consequence thereof, to the amount of 100 votes or more.

18. That in Gadsden County, at the several precincts thereof, there was a similar
conduct on the part of the Republican party and its adherents, as charged in para-
graph 17, and by such intimidation the contestant's vote was largely increased, to the
amount of two hundred votes or more.

19. That in Wakulla County, at the several precincts thereof, there was similar con-
duct on the part of the Republican party and its adherents, as charged in paragraph
17, and by such intimidation the contestant's vote was increased to the amount of
twenty-five votes or more.

20. That in Leon County, at the several precincts thereof, there was similar con-
duct on the part of the Republican party and its adherents, as charged in paragraph
17, and by such intimidation the contestant's vote was increased to the amount of one
hundred votes. And in such county the contestant's vote was further increased to
the amount of two hundred and fifty votes by the votes of boys under the age of
twenty-one years, persons convicted of felony and larceny, non-residents, and other
disqualified 'persons, and by the votes of persons who were not duly registered, and of
others who voted more than once, all of which said illegal or fraudulent votes were
cast for the contestant.

21. That at precinct No. 2, in Leon County, in said district, known sometimes
Dawkiu's Pond, a mistake was made by the precinct canvassers while making t
canvass, or transcribing the result thereof, by which (127) one hundred and twent
seven votes cast for the contestee were entered upon the return as having beei
for one Livingston W. Bethel, who was not a candidate for such Representative in th
Forty-seventh Congress, and the said mistake entered into the result, and the county can-
vassers, and afterwards the State canvassing board, carried the said mistake into
official canvass, and the votes so returned for the said Bethel should be adde<

170 DIGEST OF ELECTION CASES.

contestee's vote, aud his vote and majority should be increased one hundred and
twenty-seven votes by the correction of said mistake.

22. That in Levy County, at the several precincts thereof, there was similar conduct
on the part of the Republican party and its adherents, as charged in paragraph 17, and
by such intimidation the contestant's vote was increased to the amount of seventy-five
votes.

23. That a system of intimidation was carried on by the supporters of the contest-
ant in Jefferson County, in said district, at said election ; that voters*Vere threatened,
and beaten, and abused because of their opposition to the contestant, and to compel
them to vote for him as such Representative in the Forty-seventh Congress ; that in
violation of law the secrecy of the ballot was destroyed by the use of a transparent
ballot, and an espionage placed over the voters as they were at the polls ; that in some
cases the colored people were compelled by the contestant's supporters to vote an open
ticket in violation of law ; that in Monticello a combination of the contestant's sup-
porters exerted a system of intimidation upon the colored voters to compel them,
whether willingly or not, to vote for the contestant, and this combination had its
headquarters at the contestant's own residence ; that at Waukeenah, Macedonia, and
in fact at every precinct in the county a similar combination existed, and the con-
testant's vote was unlawfully increased thereby three hundred votes or more.

24. That in the said county of Jefferson a large number of persons at the several
precincts, and at each and every of them, amounting to one hundred or more in all,
voted for contestant who had no right under the laws of Florida to vote at the said
election. These illegal voters were made up of non-registered persons, persons con-
victed of larceny and felony, persons illegally registered, minors, and other persons
disqualified to vote under the laws of Florida, and their votes should be excluded
from the result.

25. That at the said election at the several voting places and precincts in the several
Bounties in the said district large numbers of fraudulent and illegal votes were cast
for the contestant which should be excluded from the result. Marked and transparent
ballots were illegally voted, and open ballots were illegally voted under a system of
intimidation and espionage to compel colored people to vote for the contestant against
their wishes, all of which should be excluded from the result. Other means of intimi-
dation and espionage were used ; threats, menaces, and violence were employed to
compel electors to vote for the contestant against their will, and the contestant's vote
was largely increased by these and other unlawful means and influences.

EXHIBIT C.
Replication and amended notice.

<?KORGE W. WITHERSPOON )

vs. >

ROBERT H. M. DAVIDSON. )

Contested election, 1st Florida district.

The contestant having seen and read the contestee's answer, and saving and reserving
unto himself now and at all times hereafter any and all manner of exception or ex-
ceptions to the many untruths, imperfections, uncertainties, and insufficiencies thereof,
and replying unto so much thereof as he is informed and believes that he is called
upon to reply to, by way of amendment to his former notice of contest heretofore filed
in this cause, the service whereof has been acknowledged by the contestee, and, re-
plying, he says :

First. That he was the candidate of the Republican party in the first Congressional
district of Florida for the office of Representative in Congress to the Forty -seventh
Congress of the United States of America, aud duly voted for by the competent elect-
ors of said district on the second day of November, A. D. 1880.

Second. That all and singular the charges or charge of fraud or frauds made against
Democratic election officers, inspectors, and so forth, he, the contestant, as such Re-
publican candidate, was injured thereby, making a result different to that which would
have resulted from a fair election in said district. All of which charges have been
specified to the contestee heretofore, and which the contestant now repeats.

Third. The contestant denies that the contestee's majority was decreased in any
county of said district by reason of Republican intimidation or fraud, as charged in
the coutestee's answer; but avers that if anything at all occurred in this connection,
it was the increase of the contestee's majority by Democratic frauds, violence, and in-
timidation, which frauds, violence, and intimidation resulted to the injury of the con-

WITHERSPOOX VS. DAVIDSON. 171

testa*t to the amount of more than four thousand and five hundred votes in the said
district.

Fourth. The contestant further denies that the contestee was in any manner dam-
aged or injured by the reasons or causes set up in the said contestee's answer.

Fifth. The contestant, further replying, says that as to the county of Escambia the
contestee was not injured or damaged by the action of any Republican, but, upon the
contrary, the contestant by and through the action of Democratic election officers of
election was defrauded and swindled out of more than five hundred votes, to his great
injury and damage.

Sixth. That in the county of Jackson this contestant, as such Republican candidate,
was defrauded and swindled out of more than one thousand votes'by Democratic offi-
cers of election by means of intimidation, refusal to register, and registering Repub-
lican electors in precincts other than those in which they lived, to the great injury and
damage of the contestant.

Eighth. That in the county of Gadsden the contestant, as such Republican candidate,
was robbed, defrauded, and swindled out of more than eight hundred votes by means
of Democratic frauds, violence, intimidations, and disregard for the sanctity of the
law.

Xiuth. That in the county of Leon this contestant, as such Republican candidate,
was defrauded and swindled out of more than seven hundred votes through the action
of Democratic officers of election in refusing registration, using tissue ballots, little
jokers, and so forth, to the great injury and damage of the contestant.

Teuth. That in the county of Jetterson this contestant was defrauded and swindled
out of more than fifteen hundred votes through the action of Democratic officers of
election in refusing Republican electors the right to register, in using tissue ballots,
little-joker ballots, and by other and various corrupt means and devices, to the great
injury and damage of this contestant as such Republican candidate.

Eleventh. That in the county of Levy this contestant, as such Republican candi-
date, was defrauded of more than one hundred votes through the action of Democratic
officers of elections in refusing registration, using tissue ballots, and indiscriminately
challenging Republicans who were entitled to vote, to the great injury and damage
of This contestant.

Twelfth. That in the counties of Taylor and Lafayette this contestant was de-
frauded and swindled out of more than two hundred votes by and through the action
of Democratic officers of election in refusing registration, using tissue ballots, little-
joker ballots, intimidations, and other and various corrupt means and devices, to the
great injury and damage of this contestant.

Thirteenth. That in the county of Monroe this contestant, as such Republican can-
didate, was defrauded out of more than two hundred votes through the actien of
Democratic officers of election in refusing registration, using tissue ballots, little
jokers, and challenging and delaying Republicans without cause, to the great injury
and damage of this contestant.

That true it is the contestee says that no frauds or violence or intimidations were
used, yet this contestant avers the fact to be that such were used in a reckless man-
ner, and with no other view than to defeat the election of this contestant, which would
have been the result had a free expression of the will of the people of the district been
allowed ; and the contestant having answered all and singular the objections of the
contestee. he puts himself upon the country.

T. W. BREVARD,
J. D. THOMPSON,

Att'ysfor Contettant.

The contestant will please take notice that we shall proceed to take testimony on
Saturdav, March 5th, 1881. at 10 o'clock a. m.

T. W. BREVARD.
J. D. THOMPSON.

172 DIGEST OF. ELECTION CASES.

HORATIO BISBEE, JR., vs. JESSE J. FrNXEY.

SECOND CONGRESSIONAL DISTRICT OF FLORIDA.

Contestant charges that many electors duly offered to vote for him and their votes were
illegally rejected; that votes were cast for coutestee by persons of foreign birth
which should be rejected; that fraud and "ballot-box stuffing " were practiced at
and false returns were made from certain polls ; that the election in Brevard
County was held without any registration in conformity to law ; that the result of
the election at a certain poll was affected by the use of intoxicating liquors, force,
violence, and disorderly conduct on the part of the political friends of the con-
testee ; and that what purports to be a return from Fort Christmas poll is not
signed by the officers of election, and should be rejected.

Contestee alleges that some of the persons who voted for contestant were disfranchised
by conviction of crime ; and he objects to a portion of the testimony of contest-
ant as being taken after the expiration of the first forty days allowed by statute, and
that some of the rebuttal testimony was not strictly in rebuttal.

Held, That a vote offered by an elector, and illegally rejected, should be counted as if
cast, it being shown by the affidavit of such elector that he offered to vote and
for whom.

That all votes cast by persons of foreign birth who failed to produce their naturali-
zation papers, or papers declaring their intentions to become citizens, as required
by the constitution of Florida, are illegal and void, and must be deducted from
the count.

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-lists as voting at
such poll; and no votes not otherwise proven should be counted.

Where, as in this State, the constitution provides " that no person not duly regis-
tered according to law shall be allowed to vote," an election is held in any county
without registration, the entire foundation for a legal election was wanting, and
such election must be set aside and the returns be rejected.

Where it clearly appears that the fairness, purity, or freedom of an election at any
poll has been materially interfered with by acts of violence, intimidation, &c.,
the election should be set aside.

An unsigned paper purporting to be a return is void, and no votes stated therein can
be counted.

The provisions of the statute in reference to the taking of testimony in these cases
are directory, constituting only convenient rules of practice; and the House is
at liberty, in its discretion, to determine that the ends of justice require a different
course.

APRIL 17, 1882. Mr. EANNEY, from the Committee on Elections, sub-
mitted the following

REPORT:

The Committee on Elections, to whom was referred the contested-election
case of Horatio Bisbee, jr., vs. Jesse J. Finley, from the second Con-
gressional district of Florida, having had the same under consideration,
beg leave to submit the following report:

The testimony in this case is voluminous, making a record of 1,227

BISBEE, JR., VS. FIXLEY. 173

pages, exclusive of the briefs and arguments of the respective parties
and their attorneys.

Under the laws of Florida the governor of the State appoints five
county comissiouers for each county, and the latter appoint, three
officers of election at each polling place. These officers elect their clerk
and the board of election officers thus constituted hold the election and
certify the result thereof to the county judge and clerk of the circuit
court, who are also appointed by the governor. The county judge and
clerk of the circuit court, with the assistance of a justice of the peace
constitute a board of county canvassers, who canvass the returns of the
election officers from the several polling places in the county and certify
the result to the secretary of state and governor. The secretary of
state, attorney- general of the State, and comptroller of State constitute
a board of State canvassers, who canvass the county returns and certify
the result thereof. It is not disputed that the entire machinery of the
election was in the hands of the political friends of the sitting member.
It is true the statute of the State provides that the county commis-
sioners shall appoint the officers of election, so that, " if "possible,"
they shall represent two political parties, but the evidence discloses
that this provision of the statute was frequently disregarded, and at
some polls contestant had no political friend upon the board of election
officers. It is not deemed necessary to set forth the allegations of con-
testant in his notice of contest, nor those in the answer of contestee,
but the substance of them will be stated on each branch of the case.
The contestant avers and claims that many electors duly offered to vote
for him, and their votes were illegally rejected, and insists that all such
votes so tendered and refused shall be counted as if cast.

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. It was so held in the case of Niblack vs. Walls, Smith's Re-
ports, page 104, reported by McCrary, who was then chairman of the
Committee on Elections ; again, in Bell vs. Suyder, Smith's Reports, 251,
251', and in Martin vs. Yates, Forty-sixth Congress. McCrary, in his
work on contested elections, regards it as a settled principle (section
423), and your committee have so regarded it in this controversy.

In the appendix to this report, Exhibit A, will be found the name of
every voter whose vote was tendered for contestant and rejected which
we have allowed and counted for him, except a few votes in Madison
County. This exhibit gives not only the name of the voter, but the
page of the record where the testimony will be found establishing his
right to vote and that his vote was tendered and rejected.

In the county of Marion, in which a large number of electors were
deprived of the right to vote without any fault or neglect on their part,
the electors in many instances, after being denied the right to vote, went
before a United States commissioner and made an affidavit to the fact
of their qualifications as electors and of their offering to vote, to which
they attached the identical ballot which they tendered to the election
officers. The figures in the column of Exhibit A headed affidavit refer
to the pages of the record containing such affidavits. In the case of
Bell vs. Snyder, Smith's Reports, pages 251, 252, such affidavits were
considered sufficient evidence of the voters' intention to vote for the
officers whose names were on the ballot attached to the affidavit, and
on such evidence their votes were counted.

But contestant has not only put in evidence the affidavit of the voters
with their ballots attached, but has in most instances taken the testi-
mony of the voter whose vote was refused, and where the voter is not

174 DIGEST OF, ELECTION CASES.

called as a witness it is shown by the testimony of other witnesses, offi-
cers of the election and other persons at the polls, that his vote was
tendered and refused.

Your committee find from the evidence that there should be added to
contestant's vote 268 votes on the ground that they were tendered for
him and illegally rejected, and should now be counted. It is urged by
contestee that the votes of some of the persons named (Exhibit A) had
been disfranchised by conviction of crime.

It appears to have been a rule with the election officers, not only in
this but in other counties, to refuse to receive the vote of any person
whose name was on a list called by some of the witnesses a convicts*
list which had been prepared by the political associates of contestee
and placed in the hands of the officer of election. It further appears
that the votes of such persons on the said list were refused, without
evidence of identity, and without the production of any record of con-
viction, at the polls.

We have excluded from our count the votes of all persons where the
evidence is satisfactory that the person alleged to have been convicted
is the same person whose vote was offered and refused, though the
record of conviction is not in evidence, and to designate them have
placed the letter C opposite their names on said exhibit.

We do not mean to be understood, however, as holding that the record
of conviction in such cases should not be produced as the proper evi-
dence of disqualification. The 'question is an immaterial one in this
case.

It is urged on the part of contestant that the officers of the election
at the polls of Mellonville, Orange County, and Live Oak, Suwanee
County, connived at and were parties to a premeditated plan formed to
suppress the full Kepublican vote, and for this reason the returns should
be rejected. While it is true that the evidence may warrant the rejec-
tion of the returns at these polls, yet the committee have preferred to
retain the returns in all cases where it could be done without doing
violence to the settled principles of law, and to correct the returns by
adding votes illegally rejected, and deduct those illegally cast, where
there is evidence by which such correction can be made with reasonable
certainty. We have therefore counted for contestant the votes tendered
and refused, instead of rejecting the returns of these two polls.

Your committee also deduct twenty-one votes from contestee's vote
on the ground that they were cast by persons not possessing the quali-
fications of voters. Their names and page of record containing the tes-
timony relied on are given in Exhibit C of appendix, hereto attached.

FOREIGN-BORN ELECTORS.

Contestant in his notice of contest alleges that certain votes were
cast for contestee by persons of foreign birth, and claims their rejection
on the ground of their failure to produce before the officers of the elec-
tion their naturalization papers or their declaration of intention to be-
come citizens, as the constitution and the laws of Florida require.
The constitution of Florida reads as follows on this point :
Section 3, article 14 of the constitution of Florida reads as follows :

At an election at whi6h a citizen or subject of any foreign country shall offer to vote,
under the provisions of this constitution, he shall present to the persons lawfully author-
ized to conduct and supervise such election a duly sealed and certified copy of his decla-
ration of intention, otherwise he shall not be allowed to vote; and any naturalized citizen
offering to vote shall produce before said persons lawfully authorized to conduct arid
supervise the election the certificate of naturalization, or a duly sealed and certified
copy thereof, otherwise he shall not be allowed to rote.

BISBEE, JR., VS. FINLEY. 175

It will thus be observed that the constitution of Florida commands
each and every voter of this class to perform a certain act, "otherwise He
shall not be alloired to vote," and this act peremptorily enjoined is the
production of the evidence by the individual of his right to vote.

It is a fundamental principle as firmly established as any rule of law
that votes must be cast as the law directs, and if the law requires the
voter to produce certain specified evidence of that right before he can
cast his vote, and he fails to produce that evidence, such vote, if cast
is illegal and void.

Questions identical with this in principle have been frequently decided
by the House of Representatives and by the judicial tribunals of the
country, some of which are here cited.

In Pennsylvania persons not assessed were required to answer certain
questions under oath, as to age, residence, &c., and to prove their resi-
dence by the affidavit of a qualified voter, as the prerequisite evidence
of their right to vote. It has been repeatedly decided by the courts of
that State, as well as by the House of Representatives, that votes cast
without the production of such evidence as the law requires are pre-
sumed to be illegal votes. (Maner vs. Cassidy, 1 Brewster K., p. 2;
Myers vs. Moffett, 2 id., p. 230 ; Weaver vs. Given, 1 id., p. 141 ; Shep-
perd vs. Gibbons, 2 id., p. 117-129 ; Brightley's Law Cases, pp. 558, 572..
492, 493, notes ; Myers vs. Moffett, 2 Bartlett R. } pp. 564-567 : Covode
vs. Foster, id., 600, 637, 608.)

In the case of State vs. Hilmontel, 21 Wis. R. (574 to 578), a question
identical in principle with the one now under discussion was ably and
elaborately considered. The statute of Wisconsin provided that no>
person whose name was not upon the registration list should vote un-
less he produced his own affidavit and that of a householder stating his
residence and qualifications as a voter.

The court unanimously held, after a second argument by able lawyers^
that a vote cast by a person not registered, without furnishing the affi-
davits required by the statutes, was illegal and void, and that in a contest
such votes cannot be made legal by proof that the persons who cast them
could have furnished such affidavits if they had been challenged, or other-
wise required to do so. In that case it was conceded that the persons,,
some 600 in number, who cast the votes in question had all the qualifi-
cations of electors, but that the " burden is on him (the voter) to furnish
the affidavit;" that he was the agent to execute the law, and that with-
out such affidavit his vote cannot be counted, though in every other re-
spect he was a legal voter.

This case, decided by the supreme court of Wisconsin, declares a
principle which disposes of the question raised in this contest. Here
the constitution of the State makes every voter of this class an agent
to execute it, and places the burden upon him to furnish the prerequi-
site evidence of his right to vote. The constitution does not say that
he shalfbe required to produce his naturalization papers only when his
vote is challenged. By that instrument he is informed and challenged
in advance of the election itself, and he must approach the polls armed
with such evidence as the supreme law commands him to produce as a
condition precedent of his right to exercise the franchise of an elector.
Our attention has not been directed to any judicial authority in conflict
with the authorities cited. On the other hand, we find the principle to
have been uniformly applied, and we are therefore of the opinion that
it should be applied to this case.

The principle must likewise be maintained that the production of this
evidence at the trial will not change the legal status of the voter, and

176 DIGEST OF .KLECTION CASES.

thus make these votes in question legal votes. Such a decision would
be at variance with a well-established principle of law which forbids
the making of an act valid at a subsequent period which at the time
of its commission was void because prohibited by law.

Votes illegal when received cannot be made legal by evidence offered
-at the trial which should have been produced before the vote was cast.
^Shepperd vs. Gibbons, 2 Brewster, p. 129; Meyers vs. Moffet, 1 t<7., p.
230.) The principle is again established in the following :

If election officers receive a vote without preliminary proof which the law makes
an essential prerequisite to its reception, such vote is as much an illegal one as if
the voter had none of the qualifications required by law. (Brightley's Law Cases,
453-492, notes; also, 21st Wisconsin, 566; 23d Wisconsin, 630; 16th Michigan, 342.)

The principle is self-evident. Voting is a single act commanded to
be performed within a particular time, on a particular day, and in con-
formity with law ; there cannot, therefore, be a valid performance of
the requirements of the law at a period subsequent to the day on which
alone the law commanded the act to be performed. The question at
issue is not whether such evidence as required bylaw to establish their
right to vote could have been furnished, but whether such evidence was
furnished. If they did not produce it, the supreme law prohibited
their voting, and an act prohibited by law cannot be valid.

The committee being of the opinion that all votes cast by persons of
foreign birth who failed to produce their naturalization papers, or papers
declaring their intention to become citizens, as required by the con-
stitution of Florida, are illegal and void. We proceed to state the num-
ber of such votes which from the testimony should be deducted from
the count.

The evidence introduced and to be relied upon is, first, the testi-
mony of the voter himself that he did so vote without producing such
evidence of his right to vote ; secondly, his own admission, under oath,
that he voted for contestee ; and, thirdly, where the voter refuses to tes-
tify for whom he voted when called and sworn by the contestant, the
testimony of other witnesses that he adhered to and supported the prin-
ciples of the Democratic party and was a Democrat. This is a well-
settled principle: " When a voter refuses to testify for whom he voted,
it is competent to resort to circumstantial evidence, such as that he was
an active member of a particular political party." (McCrary, sec. 293.)

We find from the evidence that 74 votes should be deducted from
contestee's vote on the ground that they were cast by persons of this
class. Their names, and page of the record concaining the testimony
relied on, are given in Exhibit B of the appendix.

ALACHUA COUNTY.

In this county contestant charges fraud and " ballot-box stuffing" at
several polls, and has adduced testimony as to three polls to* sustain
such charges.

Arredonda poll.

The charge touching this poll is in substance that the election officers
corruptly made a false return of the votes cast. Under the laws of
Florida each county is divided into election districts, and no elector
can vote in any district other than that in which he resides.

The total vote returned from this poll was in 1878 322, the highest
Republican vote for any candidate being 256 and the highest Demo-
cratic vote for any candidate being 66.

BISBEE, JR., VS. FINLEY. 177

Iii 1880 the total vote returned from this poll for Presidential elect-
ors was 322 (exactly the total vote returned in 1878), of which 172 were
returned for the Democratic electors and 150 for the Republican elect-
ors; for Representative in Congress the total vote returned in 1880 was
241 (81 less than for Presidential electors), of which 172 were returned
for eontestee and (39 for contestant; and for the legislative ticket the
total vote returned was 328, of which 172 were for the Democratic can-
didates and 150 for the Kepublican candidates ; according to the returns
the Democratic vote had increased from 66 in 1878 to 172 in 1880 and
the Republican vote correspondingly diminished. Your committee are
convinced from the evidence that the return of the votes from this poll
is flagrantly false, and is not a true statement of the votes as they were
cast at the election in question.

The return is impeached and destroyed as evidence by the testimony
of the electors themselves. Contestant has called and sworn as witnesses

259 voters, each of whom testify unreservedly that he voted for con-
testant, and it is established by other evidence that another elector,
deceased before the testimony was taken, Voted for contestant, making

260 votes cast for him at this poll, instead of 69 given him by the re-
turns.

The testimony of these electors will be found in the record, pp. 68 to
218, inclusive. Their names are on the poll-list made and returned by
the election officers (all of whom were the partisan friends of the sitting
member but one, who was under the influence of liquor on election day),
and it cannot therefore be disputed that the 260 shown to have voted
for contestant were legal electors, nor have your committee any doubt
they voted for contestant.

As to the testimony of some of these voters, the criticism is made that
they could not remember the names of all the candidates, State and
national, for whom they voted.

We do not consider it remarkable that five months after the election
an elector could not name .all the candidates he voted for out of a dozen
or more on his ballot, while he would be likely to remember the name
of his candidate for Congress who had been his candidate for Congress
for three elections in succession.

Any considerable number of voters proven for one candidate in excess
of the number returned for him has always been regarded as evidence of
fraud and a legitimate method of impeaching the return. Here it is es-
tablished that 191 more votes were actually cast for contestant than
were returned for him. We think it is sufficient to exclude the return
from the count, without further evidence.

die provision of the statute is that "the ballot-box shall not be con-
cealed from the public," and section 21 (of pamphlet compilation furnished
the committee at the argument of the case) reads as follows: "As soon
as the polls of an election shall be finally closed the inspectors shall pro-
ceed to canvass the votes cast at such election, and the canvass shall be
public and continued without adjournment until completed."

Your committee find from the evidence that these provisions of the
statute were violated, and without any reason being assigned for so
doing.

Both the witnesses for contestant and eontestee testify that after the

polls were closed the officers of the election took the ballot-box away, from

the polling-room to a house in which they took supper, two or three

hundred yards distant from the building in which the election was held,

H. Mis. 35 12

178 DIGEST OF- ELECTION CASES.

and the ballot-box was carried inside of the supper-house. Upon this
point there is no conflict whatever in the testimony.

One of the election officers, Flewellen, a political friend of contestee,
testifies that they had the election laws with them. The language of
this witness upon this subject is as follows: "We tried in every respect
to go by the election laws. We had them*with us, and complied with them
as icell as ice kneic hoic." (Kecord, 384.)

The language of this statute is so plain that any person of ordinary
intelligence could not fail to understand its meaning, and we are con-
strained to say that either this election officer, Flewellen, was too igno-
rant to read a few plain sentences of the law, or has testified with a
reckless disregard for the truth.

But he cannot escape condemnation on the ground of being ignorant,,
for it sufficiently appears that he possessed intelligence and was the
ruling spirit in the board of election officers.

The testimony establishes that the adjournment for supper was not a
careless or ignorant act, but that this officer, who swears he had the
election laws with him, had ordered supper before, the closing of the
polls, for all the election officers and the United States supervisors.
(Testimony of Ed. Sammons, United States supervisor, Kecord, page 104.)

It is also proven that this same officer, Flewellen, had in his posses-
sion the key of the ballot-box (testimony of George, inspector, Rec., 39 ^
testimony of J. T. Walls, Rec., 188), and for a portion of the time, when
they were in the supper-house, he also had possession of the ballot box.
(testimony of Samrnons, Rec., 194).

There is not any testimony adduced contradicting the fact that he
had the key of the box about the middle of the day and at the time he
went to the supper-house, and he admits in his own testimony that he-
had the possession of the ballot-box while in the supper-house. He
says :

After the Democratic inspectors got through eating I went with the Republican
inspector into another room, where his supper was served ; there he gare me the ballot-
box, and I held it immediately in his presence until he got through eating, and then Igarc the
box back to hint.

This officer here tries to shield himself from the charge of tampering
with the box, and to produce the impression that he could not have
tampered with it without being observed by the Eepublican inspector.
But we think it wholly incredible that the officer Flewellen so held the
box under the eyes of the other officer during the entire time he was eat-
ing supper that he could not have tampered with it without being dis-
covered. Besides, one witness. Ransom Baskins, who swore he voted
a Democratic ballot (Record, p. 200), testifies that the officers of the elec-
tion used whisky freely ; that they drank one bottle and one flask of
liquor; and with regard to this officer, Virgil George, he says, "I saw
him drinking, and at times with his eyes shut and his head nodding."
This officer was chosen by the other two inspectors, in a manner not
authorized by law, in the place of his son, Ephraim George, appointed
by the county commissioners, against the protest of a Republican com-
mitteeman, on the ground that he was a Democrat, and under the law
the Republicans Avere entitled to one of the election officers (Record, p.
217).

Contestee's witness proves that Ephraim was a disreputable man
(Record, 380, 381), and had not been in the county for some time prior
to the election, and not being present when the polls opened, Virgil, his
father, was elected in his stead by the other officers, when, according
to law, the election should have been by the voters present at the polls.

B1SBEE, JR , VS. FINLEY. 179

It was proven by one of its election officers that George left the polliug-
room several times during the day of the election. (Record, 390.)

The manner in which he was elected being considered, his making no
opposition to adjournment after the polls closed, which the law prohib-
ited, nor to Flewellen having the ballot-box and the key thereof at the
same time, which the law also prohibited ; that he drank liquor to ex-
cess, from the effects of which he was partially asleep at times, it is
evident that he was blind to much that transpired, and was unfaithful
to his trust and the duties of his office.

The law only authorized an adjournment for dinner between the hours
of 12 m. and 1 o'clock p. in. for thirty minutes, and commanded that
during such adjournment "the ballot-box shall be sealed and kept in
possession of an inspector, who shall not have the key thereof."

It is established by the evidence that the election officers remained
in the polling-room after the polls were declared closed until it icas dark,
with the shutters of tbe polling windows so nearly closed as to obstruct
observation from the outside, during which time they did not commence
tbe canvass of the votes ; that after it was closed Flewellen, having the
ballot-box in his possession, and the key too, which the law prohibited,,
announced that he had had supper prepared for the officers, whereupon
they adjourned to the supper-house, and in 'the supper-house this offi-
cer, Flewelleu, again has possession of box and key. These officers
excluded from the polling-room the Eepublican watchers, who under
the law had the right to be present and witness the canvass, and to
have a copy of the result of the election. The public view of the ballot-
box was also obstructed during the day by the construction of a narrow
passage-way of boards extending back from the polling window some
sixteen feet, through which the voters approached the poll^. (Record,
p. 187.)

There was a small vote comparatively to be polled, and such a con-
trivance was wholly unnecessary from any apprehension that any
elector would lose his vote by the voters crowding around the polls.

The oath of office prescribed for the officers of election in Florida to
be taken previous to receiving any votes is "that they will perform the
duties of clerk or inspector of election according to laic, and icill endeavor
to prevent all fraud, deceit, or abuse, in conducting the same."

There is no room for doubt that these officers of the election violated
their official oath and the penal statute of the State and shamefully dis-
regarded their duties which they had sworn to perform.

Having deliberately done this, we do not think any testimony given
by them in this case uncorroborated by other evidence is entitled to
much weight.

Your committee find no reason assigned in the testimony for the
several violations of mandatory provision of the statute under which
the election was held, and the conclusion is irresistible that the ad-
journment for supper and the removal of the ballot from the polling -
room was a preconcerted act, and for a corrupt purpose.

The total number of votes cast were according to the returns but 323
(Record, 245), though there are 334 names on the poll-list (Record,
244), and to canvass this number of ballots was not a work requiring
much time, and certainly does hot furnish any excuse for an adjourn-
ment before the canvass was made, which the law expressly prohibited.

Without any further statement of the evidence touching the action
of the election officers on this branch of the case, your committee are of
opinion that the disregard of the mandatory provisions of the election
laws was willful and with a dishonest purpose of securing an oppor-

180 DIGEST OF ELECTION CASES.

tunity to commit fraud, which such laws were intended to prevent, and
that the conduct of these officers was such as to render their acts
unworthy of credit and to entirely destroy \\ivprima facie character of
their return as evidence of the result of the election at this poll.

For this reason, as well as for the reason that the return is impeached
and destroyed by the testimony of the electors, your committee have ex-
cluded this return from the count. The testimony with regard to this
poll taken in behalf'of the sitting member will be found in the Record,
pp. 378 to 394, inclusive, and the testimony in behalf of contestant
other than that of the voters from pp. 186 to 196.

The precedents for excluding a return in such a case as this are nu-
merous, and the principles of law which we have followed are well
settled. We refer, however, to McCrary on Elections, sec. 302, 303;
Brightley's Leading Cases, p. 493; 1st Brewster's Reports, pp. 66,107;
Washburn vs. Voorhies (2d Bartlett, 54); Reed vs. Julian (2d Bartlett,
822); Finley vs. Walls (Smith).

The sitting member took the testimony of the clerk of the circuit
court of this county, to whom the -ballot-boxes were delivered after the.
election.

This clerk, nearly six months after the election, produces the box,
opens it, examines the ballots in it, and testified that there were in the
box 85 Republican ballots, counting no name for member of Congress ;
that there were but 68 ballots for contestant, though the return gives
him 69; 148 ballots for Republican Presidential electors, whereas, the
return gives them 150; and that there were but 140 ballots for Repub-
lican candidate for governor, though the return gives him 143. (Record,
p. 399.)

It is claimed that these ballots in the box are better evidence of the
result than the testimony of the voters.

As to the testimony of this clerk, it is sufficient to say that there is no
law in Florida providing for the preservation of the ballots for the pur-
pose of being used as evidence; the ballots are not evidence sufficient
to overcome the testimony of the voters where the question of fraud
and tampering with the ballot-box is raised. (McCrary on Elections,
sec. 276; id. 439; Washburn vs. Voorhies, 2d Bartlett, 54.)

McCrary says in u such a case the ballots might sustain the fraud."
(McCrary, sec. 439; also Reed vs. .Julian, 2 Bait., 822.)

These ballots cannot be entitled to much weight as evidence of the
result of the election, where it has been shown that the acts and con-
duct of the election officers are unworthy of credit and their returns
set aside and regarded as unreliable. Having created for themselves,
in violation of law and their official oaths, opportunities for tampering
with the box, it is legitimate to infer that they would endeavor to put
ballots in the box that would support the return.

But ifc will be seen that, comparing the votes returned with those in
the box at the time the testimony was taken, that the return gives con-
testant one more vote than there was in the box, the Republican Presi-
dential electors two more, and the Republican candidate for governor
three more.

This small discrepancy we think is significant. It is hardly possible
that election officers, proceeding in the orderly discharge of their duties,
could make the mistake of returning more votes for the candidates of
their opponents than there were ballots cast for them, and this discrep-
ancy induces the belief that, in placing ballots in the box for the
purpose of having the number thereof the same as the number of votes

BISBEE, JR., VS. FINLEY.

given in the false return which they made, they committed an error in
their count.

The sitting: member has urged that the contestant's vote was reduced
at this poll by the voting of a ballot not containing the name of any can-
didate for Congress. For convenience we will distinguish this from the
other ballots by designating it as a bogus ballot.

Your committee do not find any evidence to sustain this claim of
contestee.

The proof is that the Republicans in this county were divided into
factious, and run two distinct tickets for the State legislature. These
factions were known as the Walls and Dennis factions, the former being
a candidate for the Senate on one ticket, and Dennis for the assembly
on the other. The specific claim and theory of contestee is, that at
this poll the Dennis faction voted a ticket blank as to the office of Rep-
resentative in Congress. The only evidence of such bogus tickets being
voted is that they were found in the box. But we have already shown
that on an issue of this kind, where the officers are charged with fraud,
the ballots are not sufficient evidence to outweigh the testimony of the
voter.

Contestee has not attempted to prove by direct evidence that a
single elector voted such a ballot. He has not attempted to prove that
any one at the polls on the day of the election attempted to induce any
voter to vote such a ballot. On the other hand, contestant has proven
by Walls, who resides in this election district, that he did not see any
one canvassing against or opposing contestant on election day; and by
Charles Dubose, an ardent supporter of the Dennis faction, that he dis-
tributed the tickets of this faction, and that contestant's name was on
them. Dubose was chairman of a club, having 164 members, a list of
the names of which is put in evidence. (Record, pp. 191, 196,284.)

The testimony of the 259 voters sworn as witnesses for contestant
establishes the fact that 260 electors voted for contestant, and that
Walls and Dubose distributed the greater part of the Republican bal-
lots at the polls: and this, in the absence of any evidence showing that
these bogus tickets were actually voted, is conclusive that these ballots
were fraudulently put in the box.

There is some evidence that Dennis, a candidate for the legislature,
professed at times to be opposed to contestant's election (Record, p.
141), and there is also some evidence that such opposition, if any made,
had been withdrawn before the election. (Record, p. 988.) As before
stated, the testimony of the voters, as against any evidence adduced,
is conclusive on this point, but the returns from the polls unassailed
proves beyond controversy that the contest between the two Repub-
lican factions had no effect upon contestee's vote. There were in this
county seventeen polling places; at three of these polls fraud is alleged
and proven by the testimony of the voters, and at the other fourteen poll&
the returns give the contestant about the same number of votes as both
Republican local tickets received, and in some of the election districts
adjoining, and in close proximity to this election district of Arredouda,
the contestant's vote exceeds the combined vote received by both of the
Republican legislative tickets. We regard this as conclusive evidence
that all the Republicans voted for contestant as solidly as if they had
united on one legislative ticket.

Again, it is not clearly shown whohad these bogus tickets printed ; if
done by contestee's associates, he could easily have shown it. Nor
would the voting such bogus tickets have increased the number of votes
for the sitting member : whereas he and all the Democratic candidates

182 DIGEST OF ELECTION CASES.

have OD the returns 172 votes, as against 66 votes two years previous, a
gain of about one hundred and seventy per cent., without explanation,
and besides shown to be fraudulent by the testimony of the electors them-
selves. This disposes of all questions as to this poll, and your committee
decide that the contestant is entitled to have 260 votes counted for him
at this poll, or 191 in addition to his returned vote; and as coutestee
has not proven any votes for himself, none can be counted for him.

NEWNONSVILLE POLL.

The charge is made that fraud was committed at this poll by stuffing
the ballot-box with Democratic ballots. Two hundred and ninety -six
votes were returned, 150 for Bisbee, and 146 for Finley. (Record, p. 19.)

By the electors called and sworn as witnesses it is proven that 168
votes were cast for contestant; 18 in excess of the number returned.
(Record, pp. 23 to 65, and pp. 296 to 313.)

It is also clearly proven that when the polls closed there were 29 more
ballots in the box than names of electors on the poll-list, which excess
was drawn out and destroyed (Record pp. 31, 182, 185) ; that Demo-
cratic ballots were found in the box folded together, which were counted;
that before the ballots were counted a Democratic officer stirred or mixed
the ballots up with his hand (Record, p. 183) ; and, after drawing out
and destroying 21 ballots, on a second count, 8 more in excess of the poll-
list was discovered, which were drawn out by the Republican inspector.

It is proven that 5 of the 8 so destroyed were Republican ballots, and
that the greater portion of the other 21 were also Republican ballots.
We conclude from the evidence that this excess was caused by the vot-
ing of two or more ballots by one voter, and that this was done by the
supporters of coutestee. Rollins testifies that he was in the polling-
room a,ndkept a tally-sheet, and from the appearance of the ballots and
the known fact that 175 Republicans voted (of whom one did not vote for
member of Congress, Record, p. 43), and that the most of the ballots de-
stroyed were Republican, that 174 votes werecastfor contestant. There
were 150 votes returned for contestant; five of the eight last destroyed
being Republican, on the theory that illegal Democratic ballots took their
place, would make 10 more votes for contestant in the final result ; and
on the same theory if 7 of the other 21 votes destroyed were Republican,
it would make 14 more votes, and in all 174, which Rollins testifies to.
There would still be 121 vo'tes to be accounted for to equal the number
of voters on the poll -list.

On the part of contestant it is insisted that the return should be re-
jected, and only the votes otherwise. proven counted. And our atten-
tion is called to the case of Washburu vs. Voorhies (2d Bartlett's Re-
ports, p. 54), where returns were rejected on proof of an excess of votes
proven for one candidate over his returned votes of about eight per cent.,
and at one poll of four per cent, of the total vote returned.

McCrary says (sec. 371), "it is very clear that if the returns are set
aside no votes not otherwise, proven can be counted." The supreme
court of New York, in 7 Lansing, 274, and other authorities have de-
clared and applied this as a settled principle, which we do not propose
to overrule.

Another well-settled principle is that no poll shall be entirely set
aside if the return can be corrected with reasonable certainty. The
only correction of the return which, from the evidence, could possibly
be made would be to count 174 votes for contestant and 121 votes for
contestee. While we think this would approximate the probable true

BLSBEE, JR, VS. FINLEY. 183

state of the vote at this poll we cauiiot say from the evidence that such
a result is reliably proven.. The only other disposition that can be
made of this poll is the rejection of the returns and count no votes save
the 168 proven for contestant, and from the views we have taken of the
whole case it is not material to the final result which alternative is
adopted.

PARKER'S STORE POLL.

This poll is also assailed by contestant, who avers that the return is
a false statement of the votes cast.

There were but 306 votes returned for Representative in Congress
l.'ii for Bisbee, and 155 for Finley. (Record; p. 262.) There are 336
names on the poll-list. (Record, p. 374.)

It is satisfactorily proven by the electors sworn as witnesses for con-
testant that 179 votes were cast for him instead of 151 returned, an
excess of 28 votes. (Record, pp. 323 to 371). There were ballots in
the box at the close of the election in excess of the poll-list to the num-
ber of six or seven (Record, p. 355), and five votes tendered by Repub-
licans and rejected, which are included in Exhibit A of the appendix.

This excess of 28 votes proven for contestant over the number re-
turned for him is not explained in any manner by the testimony.
AYh ether it is the result of fraud in the officers of election or of gross
carelessness in the count there is no proof to show, but upon the tes-
timony adduced it must have been one or the other. In counting so
.small a number of votes it is wholly improbable that the election offi-
cers innocently made the mistake of suppressing 28 votes for contest-
ant nearly one-sixth of the total vote cast for him. Contestee has not
taken any testimony with respect to this poll, and we are required to
dispose of this question upon the evidence in the record.

There is no evidence by which the return can be corrected. The re-
turn is proven to be unreliable as evidence of the true vote, and the lat-
ter cannot be ascertained by any other evidence.

We think, therefore, that this return should be set aside and that no
votes not otherwise proven should be counted.

It may be claimed that it would be proper to credit contestee with
the difference between the returned total vote and the number proven
for contestee, but this would be an assumption without evidence and
an evasion of the rule that when a return is rejected each candidate
must prove his vote by other evidence.

If legal votes were cast for coutestce he had an opportunity to prove
them, but has neglected to do so.

MADISON COUNTY.

In this county the committee find from the evidence that a systematic
scheme of stuffing the ballot boxes at all of the Republican polls with
Democratic ballots was adopted by the political opponents of the con-
testant, thereby creating an excess of ballots over the poll-lists, and
that at the subsequent canvass the officers of the election drew from the
ballot-box and destroyed Republican ballots to the extent of such ex-
cess, and that by this method the contestant's majority in this county
was reduced several hundreds of votes.

They further find that the contestant attempted, in accordance with a
settled principle of law, to call as witnesses all the known Republican
electors at the several Republican polls where this ballot-box stuffing

184 DIGEST OF ELECTION CASES.

occurred for the purpose of establishing his true aud lawful vote by
proving by their own testimony that they voted for him. For this pur-
pose contestant's attorney, accompanied by a proper officer, proceeded
to this county to take the necessary depositions. On the day succeed-
ing their arrival, as disclosed by the evidence, an altercation occurred
"between a witness whose testimony had been given the day preceding
in behalf of the contestant and one Patterson, who had been accused of
election frauds, which altercation resulted in the death of Patterson in
the presence of the officers engaged in taking the testimony.

This act occasioned the immediate suspension of taking the testimony
in this county. Great excitement ensued, and the State militia were
called out to aid in preserving the peace. So violent were these pro-
ceedings that the contestant's attorney and the officer engaged in tak-
ing the testimony were compelled to seek safety by flight, and this
officer was afterwards arrested and imprisoned for several weeks, and
finally discharged by the order of the supreme court of the State. For
about a month contestant's attorney was prostrated by so serious an
illness, resulting from exposure and fatigue, as well nigh proved fatal r
preventing all attention to business.

At the request of the Department of Justice, the United States judge
in Florida and the marshal of that State proceeded to this county to
take the testimony for the contestant, but were compelled to abandon
the effort, as it was found to be impracticable in the then existing state
of public excitement. Many witnesses who had testified before the
United States court at Jacksonville, in the previous month of Decem-
ber, exposing the frauds in this county, became so alarmed by threats
of violence of political opponents one of their number, indeed, having
been in the mean time shot and severely wounded would not return to-
their homes.

As soon as contestant's attorney, who had the general charge of his-
case, recovered sufficiently to attend to business, he endeavored to se-
cure the services of other attorneys politically friendly to the contestant
to take this testimony, but without success, as they peremptorily de-
clined to go into this county and others into which the excitement had
extended.

At this juncture of affairs, contestant, then sitting as a member of the
Forty-sixth Congress, employed an attorney residing in Washington r
D. C., to represent him in taking the depositions, in Jacksonville, of the
witnesses who were refugees from Madison County, and to proceed
thence to Alachua County to take the testimony there.

The committee are of the opinion that the foregoing evidence satis-
factorily demonstrates the causes which prevented the contestant from
establishing his vote at the polls in the county of Madison, tainted with
fraud by the testimony of the voters themselves. To detail at length
all the occurrences in this county as disclosed by the evidence would
enlarge the report beyond proper limits, and therefore the statement
will be condensed as much as possible.

It is in evidence that the Democratic ballots voted in this county were
not more than half the size of and of finer quality of paper than the
Republican ballots, and could be readily distinguished from the latter
by even the sense of touch. This fact is established by the testimony
of the witnesses of both contestant and contestee, and by specimens of
ballots in evidence, and it is unnecessary to further allude to the evi-
dence on this point. Likewise, upon the question of an excess of ballots,
aud of two or more having been folded so that oue would be partially
inclosed in another, and in such manner as when handled or shaken

BISBEE, JR., VS. FINLEY. 185

they would separate, there is no disagreement between the witnesses-
of the contestant and contestee.

The testimony of Carroway Smith, an election officer at poll No. l r
Madison County, a political friend of coutestee, reads as follows upon
this point :

At the closing of the poll at the time required by law, which time was sundowm
we obtained lights and proceeded to canvass the vote by first ascertaining how many
votes have been cast from the poll-list ; one of the inspectors counted the ballots in
the box which were in excess of the number of votes cast as shown by the poll-list j
They were counted rather hurriedly, as I thought, aud not wishing to have any mis-
take, I then counted them, examining every ticket carefully and found out that there
was an excess. I think about fifty votes; I counted them over a third time, with the
assistance of Mr. Forrester, Mr. Gambier being there, standing by the box, and found
that my second count was correct. What I mean by examining every ticket care-
fully, that after counting a few votes, we found a ticket laying in another, audit was
unanimously decided by the inspectors that it was not a double ticket, Mr. Gambier
giving his opinion first; I found a good many in the same way, which accounts for
the difference in the excess of the first and second counts, the first excess being about
between twenty aud twenty-five. We then proceeded to draw out said excess. Mr^
Forrester, with his back TO the box, did the drawing, aud placed the drawn ballots
in my haT, held by me for that purpose. After drawing out said excess, I took them
to the middle of the room without examination, placed them upon the floor, and some-
one of us, Mr. Blackwell, I thiuk, the United States supervisor, set them on fire; we
then proceeded to ascertain for whom the remaining votes were cast in the manner-
required by law. (Record, p. 1017.)

The committee find that the sitting member did not examine any wit-
nesses with regard to any of the polls in this county except polls Nbs.
1 and 2 in the town of Madison, and that his witnesses support the
testimony adduced by contestant concerning difference in ballots, ex-
cess over poll-lists, and the folding together of the same ; that the-
contestee did not interrogate any of his witnesses as to the charac-
ter of ballots drawn out and destroyed, whether they were Democratic
or Republican ; and as it was a very material thing to be established,
the inference to be drawn is, that the coutestee's attorney was aware of
the fact that in the main they were Republican ballots, aud that the testi-
mony on behalf of contestant, taken before coutestee examined his wit-
nesses, establishes the fact that they were Republican ballots thus drawn
out and destroyed. From this evidence the committee concludes that
the following Republican ballots were drawn from the ballot boxes and
destroyed, to wit : At the Greenville poll, 52; at the Madison poll No. 1,.
52 ; at Madison poll No. 2, 14 votes, and that 20 more in excess on the
second count were counted, which added that number illegally to con-
testee's vote ; at Cherry Lake poll, 14 votes, and at Mosely Hall, No. 4
poll, not less than 10 votes.

The committee are therefore of the opinion that the fraud thus com-
mitted at the five polls last mentioned should be corrected by adding
142 votes to the contestant's vote, and deducting 162 votes from contes-
tee's vote. By thus correcting and purging the polls in question the
contestant's majority at the five polls will be increased 304 votes.

The evidence likewise establishes the fact that not less than eight Re-
publican electors, duly registered, offered to vote at the Greenville poll r .
aud declared their willingness to take the oath of a challenged voter,
but were denied the right to vote. (Testimony of McKay, Record, p.
929. Testimony of Stripling, Record, p. 943.)

It is also proven that at the Cherry Lake poll two Republican electors
were illegally denied the right to vote (Record, pp. 914 and 921), and
that one illegal Democratic ballot was cast at this poll, the person cast-
ing it not taking the oath of a challenged voter, though challenged a*
a minor. (Record, pp. 915-922.)

186 DIGEST OF ELECTION CAStS.

It is further established by the testimony of Watt S. Gheater, United
States deputy marshal, that 13 Eepublicau electors were illegally denied
the right to vote a Republican ballot at the Mosely Hall poll Xo. 4
(Record, pp. 940, 941), and his testimony remains unassailed by any
other testimony. There were ten polling places in this county, from all
of which returns were made by the officers of the election, and certified
copies thereof are in evidence (Record, pp. 869 to 885). From these 10
returns, duly signed by the officers of the election, it appears that 1,380
votes were returned for Finley and 1,488 votes forBisbee, or a majority
for contestant of 108 votes.

The official county return (Record, p. 860) gives Finley 1,055 votes
-and Bisbee 1,014 votes, or a majority for Finley of 41 votes instead of
108 majority for Bisbee on the face of the ten district returns. This dis-
crepancy arises from the fact that the votes returned from the two polls
known as Madison No. 2 and Cherry Lake are not included in the county
returns. From these two polls 325 votes were returned for Fiuley and
474 votes for Bisbee (Record, pp. 871, 881), which added to the votes of
the respective parties in the county return make the exact number of
votes given for Finley and Bisbee in the ten district returns in the county.
*The committee are of the opinion that the omitted returns from Madi-
son No. 2 and Cherry Lake polls, being unassailed, should be counted.

Finley. Bisbee.

"The vote there, as officially returned by the election officers, is 1, 380 1, 486

Deduct 162 from Finley for excess taken out and destroyed 162

And add 142 to Bisbee for same 142

_Also, add 23 tendered and refused for conte'stant, and deduct 1 illegal

vote from contestee ... 1 23

1,217 1,653

Majority for Bisbee of 436, instead of 108 as returned.

If there were any doubt of the correctness of the foregoing conclu-
sion the committee find other evidence of a positive, confirmatory
character, calculated to produce the conviction that the contestant's
majority in this county was even larger than 436.

Without pausing to dwell upon the testimony relating to the returns
from the Republican poll known as Hamburg, which in the recent elec-
tion gave the contestant but 64 majority, while at the election in 1878
it gave him 112 majority the total vote cast in 1880 being greater by
24 votes than in 1878, and the names of 278 known Republican electors
on the poll-list, in a total number of 447 (Record, p. 1176) thereby in-
creasing his majority in this county to 481, we pass to the brief consid-
eration of another point in confirmation of the foregoing conclusions.

The history of the politics of Madison County shows that the Repub-
lican majority for Representative in Congress for the three elections prior
to 1880 was as follpws, to wit:

Votes.

In 1874 Republican majority was 469

In 1876 Republican majority was 489

In 1878 Republican majority was 453

General average majority was 453

The excess of the total vote of the county over that of 1876, when the
Democratic candidates polled the largest vote that party ever received,
is 245, and the testimony establishes the fact that this excess was the
result of natural increase, and the greater portion of it was polled in
Republican districts. (Testimony of Dennis Eagan, Record, p. 1203.)
Should this excess be distributed pro rata, according to the vote of 1876,

BISBEE, JR , VS. FINLEY. 187

when the parties to this controversy were candidates, the contestant's
majority would be about 480 votes.

Again, it is in evidence that in this county, as generally throughout
the State, a separate election was held by the Democratic electors to
nominate ten county officers for appointment by the Democratic candi-
date for governor in case he was elected. This election was held, not
in pursuance of any law of the State, as under the State constitution
county officers are appointed by the governor, but under the following
resolution of the Democratic State Convention :

nexob-ed, That this convention recommend the appointment of such county officers
as may be chosen and elected by the conservative Democratic voters assembled in their
several counties on the day of the general election; such election to be by ballot and
to be conducted in such a manner as to obtain a full and free expression o*f the wishes
of the voters who act with us in supporting the nominees of this convention.

The Democratic State or Congressional committee had the manage-
ment of this separate election and issued the following instructions, to
wit :

All persons who desire to vote for county officers must show their ticket to the precinct
committees before they rote. No person who votes for Couover, Ledwith, or Bisbee can
vote for county officers. (Record, p.

This separate election, we infer, was to remove in some degree the
objections to the exercise by the governor of such large appointing
power, and the rivalry among so many candidates would assuredly bring-
to the polls the full vote of the party.

The evidence shows that the total Democratic vote cast at this infor-
mal election was 1,175, and that the highest Democratic vote ever be-
fore cast in this county, was 1,082, in the year 1870, ichich was 93 less
than cast at these separate polls in 1880, at ichich no Republican rote was
permitted to be cast. Concede that 1,175 votes is the full Democratic
vote or the county, and the following result appears, to wit : The entire
number of names of electors on all the poll-lists in 1880 was 2,848. De-
duct as full vote of contestee, 1,175; vote for contestant would then be
1,673; contestant's majority. 498.

On this branch of the case reference is made to the testimony of'Eagan
(Record, p. 1203). Nevertheless, the committee, with a view of remov-
ing all doubt, concluded to count only for the contestant the foregoing
majority of 430, the number which the evidence conclusively establishes
the contestant entitled to beyond cavil or dispute.

Correcting the vote, according to our conclusion, upon the issue already
decided, the contestant's election is apparent, even conceding that all
the votes at the Xewiiansville poll and Parker's Store poll, Alachua
County, not proven for him aUunde the return, should be counted for
contestee. '

In other words, correcting the frauds by counting the votes as they
were cast, in Alachua and Madison Counties; adding votes for contest-
ant tendered for him and illegally refused, and deducting illegal votes
cast for contestee, the election of contestant is established, as will ap-
pear in the tabular statements at the close of our report.

Other questions have been presented by contestant, which we will
now state and dispose of.

BREVARD COUNTY.

The laws of Florida require a registration of the electors, and the
constitution of that State commands u that no person not duly registered
according to law shall be allowed to vote. r

188 DIGEST OF, -ELECTION CASES.

The law requires one general registration book for each county, and
also another registration book for each election district into which the
county is divided ; and these district books are the original books of
registration, in which each voter must write his name, or have it writ-
ten by the registrating officers, and take the oath of allegiance to the
State and to the United States, which oath is to be printed or written
at the commencement of the book. Opposite the voter's name must
appear, in proper order, the number of the election district in which the
voter resides, and the day. month, and year of his registration.

The law provides for copying by the clerk of the circuit court the
names on the district books into the general registration book. This
clerk is the registrating officer for the election district in which his
office is located, and he appoints a registrating officer for each of the
election districts of the county.

The registration must be closed ten days before the day of election,
and a certified copy of the district book is to be delivered by the sheriff
to the election officers, which copy is the legal evidence to the officers
of the election of the fact of registration, and of the qualification of the
electors whose names are on such copy.

The contestant asks that the entire election be set aside in this
county, and that no votes shall be counted lor either party, on the
ground that the election was held without any registration in conform-
ing to the law.

The evidence relied upon consists of the testimony of one James A.
McCrory, the deputy clerk of court, who had charge of the clerk's office,
and who performed, as it appears, such duties as were performed, in this
county preparatory to the election. (Record, pp. 403-405.)

This deputy clerk was a Democrat, and was examined as a witness on
behalf of contestant. It is proven by his testimony that no registration
books were provided or used in this county, and that the only semblance
or pretense of registration of the electors consists of "loose sheets of
paper" containing the names of citizens, which were brought into the
clerk's office by the registrating officers from eight election districts.

The whole number of such districts was twelve, and from the other
four this deputy clerk testifies that even such lists of names "on loose
sheets of paper" were not made and brought to the clerk's office. Mc-
Crory can only name one district from which such irregular lists of
names were returned that contained oaths required by the law to be
taken and subscribed by the elector and registration officers. (Record,
p. 405.)

It has been called to the attention of your committee, that it was
proven by the clerk of the court, and other witnesses, in the contested
election case of Bis bee vs. Hull, that there were no registration books
provided or used in this county at the election of 1878.

It also appears that by a statute of Florida, passed in 1879, a consider-
able portion of the territory of the adjoining county ofVolusia, was added
to this county, Brevard, consequently it cannot be claimed that any of
the citizens residing within this portion of the county had the right to
vote by reason of any prior registration. And this new part of the
county is included in that containing the eight election districts in which
these lists of names " on loose sheets of paper" ^ere made and delivered.

The registration books, under the laws of Florida, are public records,
and the clerk of the court is the legal custodian of them. This deputy,
who had charge of the office, could not well be ignorant in regard to the
subject-matter of his testimony, and he evidently testified with some

BISBEE, JR , VS. F1NLEY. 189

reluctance, which may be accounted for from the fact that he was a
political associate of coutestee.

According to this testimony it is manifest that the entire foundation
for a legal election in this county icas wanting. As to the four districts in
'which not even the irregular lists of names '-on loose sheets of paper"
were made, there can be no pretense that there was any registration of
ai.y kind whatever. From these four districts 63 votes were returned
for contestee, and 12 for contestant.

As to the other eight election districts, it*can hardly be claimed that
-' loose sheets of paper'' are registration books, such as the law requires.
They could be manufactured, abstracted, and substituted at pleasure,
with slight risk of detection.

To sustain this as a legal registration would do violence to the pro-
vision of the constitution and laws of Florida, would destroy all the
safeguards against the frauds at elections which registration laws are
intended to prevent, and would, we think, furnish greater facilities for
fraud than the absence of any registration at all.

Your committee therefore hold that the election in this county must
be set aside as illegal and void.

The principle is so well settled that an election held without registra-
tion, under laws requiring registration, is illegal, that the citation of
authorities is deemed unnecessary.

The returns from this county give the sitting member 222 votes, and
the contestant 74 votes, wnich are excluded from the count.

HAMILTON COUNTY.

It is charged by contestant that the result of the election at poll No*
3 in this county was affected by the use of intoxicating liquors, force,
violence, and disorderly conduct, resorted to by the political friends of
the contestee; that the authority of the United States supervisors and
a deputy marshal were publicly defied, and that the officers of the elec-
tion approved of such action and conduct, and discriminated illegally
and corruptly against the Republicans in the management of the elec-
tion and reception of votes.

Your committee find from the evidence that these charges are sub-
stantially sustained, and that the election at this poll was not, in any
just sense, a free and fair election.

It is proven by a number of witnesses that the political supporters of
coutestee, in several instances, led colored men to the polls in a state
of intoxication, which they had designedly produced, and forced them
to vote a Democratic ticket; and that from the efforts of Republicans to
prevent such conduct and to secure the right of each elector to vote a
free ballot, violent quarrels ensued in front of the polling- window, and
that the immediate vicinity of the polls was a scene of disorder, law-
lessness, and threats of personal violence, continuing a considerable
portion of the day, and that by such means the result of the election at
this poll was effected.

Reference is made to the testimony of John W. Rackley, an Inde-
pendent in politics, and late clerk of the Florida senate (Record, p. 1183) ;
of E. J. Roulesson, United States deputy marshal (Record, p. 1189) ; B. E.
Roulessou (Record, p. 1204) ; Isham Guillion (Record, p. 1193); and Cato
Williams (Record, p. 1208).

Williams was one of the electors who was made to vote a Democratic
ballot while intoxicated, and he certifies that he voted such ticket, con-
trary to his intentions, and was so drunk that one of his Democratic
neighbors had to carry him home on a mule.

190 DIGEST OF- ELECTION CASES.

Guilliou gives the names of certain voters whose votes were obtained
for the Democratic candidates by the threat of depriving them of laud
they had contracted for if they voted otherwise.

The deputy marshal testifies that at about two hours before suuset
there was not a dozen sober men at the polls.

It is proven that the officer of the election who received the ballots
sat in the window of the polls with a revolver exposed upon his person ;
that the officers allowed one man to vote a Democratic ticket who had
been convicted of an infamous crime, and refused the vote of a Repub-
lican elector who had been charged with such a crime, but had never
even been tried for it, though he offered to take the oath of a challenged
voter ; and that these officers allowed a Democratic elector to vote in
the polling-room unobserved after he had been challenged and refused
to take the oath of a challenged voter and vote publicly. The deputy
marshal was compelled to abandon any effort to preserve order through
fear of his life, and the officers of the election made no effort to preserve
the peace and an orderly conduct of the election, which they had sworn
to do, but acquiesced in all that occurred. Rackly and the two Roules-
sons testify that in their judgment, by the methods described, the con-
testant lost from 20 to 30 votes and the sitting member gained from 20
to 30 votes. It is also proven that printed posters were placed upon the
polling-room and at other places near the polls, bj T the Democratic
United States supervisors and other persons, warning against any inter-
ference by the Federal authorities.

The whole conduct of election officers may, though actual fraud be not apparent,
amount to such gross and culpable negligence, such a disregard of their official duties,
as to render their doings unintelligible or unworthy of credence, and their actions
entirely unreliable for any purpose. (McCrary, sec. 303.)

If it clearly appears that the fairness, purity, or freedom of an election has been
materially interfered with by acts of violence, intimidation, &c., the election should
be set aside. (Id., sec. 416.)

We are of the opinion that the election at this poll falls under the
condemnation of the doctrines stated by McCrary in the section quoted,
and that the election should be set aside. The vote returned from this
poll is, for Finley, 136, and for Bisbee, 68, which must be deducted from
the official canvass.

ORANGE COUNTY.

The paper purporting to be a return from the poll in this county
known as Fort Christmas is not signed by the officers of the election,
as appears from a certified copy thereof in evidence, and it is proven that
these votes stated in this paper were included in the official returns
from the county. (Record, pp. 1129 and 76.)

Such a return is illegal, and. no votes stated therein can be counted.
(McCrary on Elections, sees. 174 and 274.)

This document states that Finley received 30 votes and Bisbee 3 votes,
which we deduct from the count.

NASSAU COUNTY.

It is averred in the notice of contestant that an officer of the election
of Odum's Branch poll in this county committed the fraud of substi-
tuting Democratic for Republican ballots. ?

It is proven by. three witnesses, sworn on behalf of contestant, that
one of the officers of election placed a Democratic ballot in the ballot-

BISBEE, JR., VS. FINLEY.

box, not delivered to him by an elector, in lien of a Republican ballot
that was delivered to him by an elector. The sitting member adduced
no testimony controverting that of these three witnesses.

It is claimed that this return should be excluded, on the principle that
if an officer of election is clearly shown to be guilty of deliberate fraud
in a single instance, all his acts are tainted with dishonesty, and the
prima facie character of the return, as evidence, is destroyed. (McCrary
sees. 441, 442, 303.)

The application of this principle would reject this return, but as the
testimony establishes that this act of changing one ballot was done
soon after the polls opened, and was not afterwards repeated, and the
total vote was .small, we have concluded to retain the return, and cor-
rect it by deducting one vote from Finley's vote and adding one vote
to Bisbee's vote.

MARION COUNTY.

Objection is made to counting the votes stated in the Moss Blufi' re-
turn in this county. The proof relied upon by contestant to exclude
this return consists of the testimony of three witnesses.

The substance of all their testimony is that the supporters of the sit-
ting member voted ballots which they took from a table in the polling-
'roorn ; that during the day it was discovered by two of these witnesses-
that coutestee's name was not on the ballots on this table. One witness,.
Heath (Record, pp. 578, 519), swears positively that he examined 25 to-
30 of such ballots on the table from which the Democratic electors took
their ballots, and that coutestee's name was not on them. Another
witness, Sellers (Record, pp, 516, 518), swears that he was present when
the names of the candidates on the ballots voted were read to be tallied,,
and that contestee's name was not called out; at least if it was the wit-
ness did not hear of it.

All the officers of the election were political friends of the contestee,.
and it is proven that as the names of the candidates for each office upon
a ballot were announced by one of the officers he handed the ballot to-
another officer of the election, who immediately tore it up and destroyed
it, instead of laying the ballots aside until all of them had been can-
vassed.

The contestee has not attempted to explain or disprove the testimony
taken by contestant, and for this reason it is urged that he could not.

It is true that the coutestee could easily have proven that his name
was upon these ballots voted by his supporters, if such* were the fact,
and by not doing so he has left the impression to operate that he could
not, but the voters may have written contestee's name on their ballots,
and there is no evidence that they did not, except the testimony tend-
ing to show that his name was not read when the votes were canvassed.

The elector who voted for the other Democratic candidates doubtless
intended to vote for the contestee, and as the witness for contestant is
not entirely positive that the name of contestee was not read from the
ballots when they were canvassed, we have concluded to count the vote
at this poll as returned.

BRADFORD COUNTY.

It is claimed by contestant that at the four polls in this county,
known as Xos. 2, 3, 5, and 7, 76 persons voted who were not registered
voters.

The evidence relied upon is a certified copy of the registration book

102 DIGEST OF ELECTION CASES.

of the county, dated November 29, 1880, a certified copy of the list of
names stricken from such book, at the annual revision thereof by the
county commissioner, in the year A. D. 1878, and 1880, and also a cer-
tified copy of such book, dated March 15, 1877, purporting to be a copy
of all the names registered on that date, from 1868, when the registra-
tion laws Were first passed. (This last copy is in the record of the case
of Finley vs. Bisbee, Forty-fifth Congress, page 758, offered in evidence
fit the argument of this case.)

The total number of votes returned from these four polls is 590, of
which but 47 are returned for contestant. The poll-lists are in evidence,
showing that the 76 persons voted, and if their names are not on the
said certified copies of the registration books and lists of names stricken
from such books, there being no evidence to the contrary, these votes
are illegal. If deducted pro rala, according to the rule applied, where-
as in this case it is not shown for whom such votes were cast, 70 should

being lost in fractions by this method of deduction.

As the decision of this question will not affect the final result on the
merits of the case, your committee have not performed the work of ex-
amining the copies of the books and lists of names to ascertain whether
or not the 76 persons, or any of them, are registered, and therefore have
not deducted the votes of these persons in the tabular statement of cor-
rections of the official vote.

According to the conclusions to which we have arrived, the official
returns must be corrected as follows :

Finley. Bisbee.

The total official vote returned is 13,430 1-2,427

Add to contestant's vote the votes tendered and rejected (Exhibit A) 269

Deduct from contestee's votes the illegal vote cast for him (Exhib-
its B and C) 96

Deduct from contestee's vote at the Arredoiida poll, 172 ; Newnans-

villepoll, 146; Parker's Store, 155 473

And add to contestant's vote the votes proven at said polls in excess
of his returned vote, Arredouda, 191 ; Newnausville, 18 ; Parker's

Store, 28

Madison County, deduct from contestee 163

Aud add to contestant 165

Nassau County, Odwin's Branch poll, deduct from coutestee 1

And add to contestant ... 1

Total of above corrections 733 672

Which deducted and added to the official vote gives the following

result 12,697 13,099

To be still further corrected by deducting coutestee's returned vote

and contestant's returned vote in Brevard County 222 74

Deduct returned vote at No. 3 poll, Hamilton County 136 68

And at Fort Christmas poll, Orange County . .'. 30

Total 388 145

Which deducted from the last stated result gives for Finley 12,309 ;
Bisbee, 12,954, and a majority for Bisbee of 645.

Now concede to contestee at the two polls of Newnansville and
Parker's Store, Alachua County, the difference between the total re-
turned vote for Kepresentative and the votes proven for contestant, and
255 votes would be deducted from Bisbee's majority, leaving him 390
majority. And even if the polls in Brevard County Xo. 3. Hamilton
County, and Fort Christmas poll, Orange County, were not rejected,
contestant would still have a majority of 147 votes.

In any view of the case founded upon the law and the evidence, the
contestant has a majority of the legal votes cast.

BISBEE, JR., VS. FINLEY. 193

It ought, however, to be stated :

Contestee claimed before the committee that a portion of contestant's
evidence was taken after the expiration of the first forty of the ninety days
allowed by statute (Eev. Stat., p. 1071) for the taking of testimony, and
that some of that which was taken during the ten days allowed for re-
buttal was not strictly in rebuttal, and that all such should be rejected
and not considered by the committee.

It appears that contestant has given notice of the taking of a large
number of witnesses, and proceeded to take them as fast as he could,
but at the expiration of the forty days, to wit, on March 15, he had not
got through with his list, and continued until they were finished, on the
16th, 17th, 18th, 19th, 21st, 2*2d, 23d, 25th, 26th, and 28th of March.
Contestee's counsel left and would not remain after the 14th of March.
It is claimed, and the record sustains it, that contestee had consumed
a great deal of time unnecessarily by his method of dilatory and useless
cross-examination, probably with the object of delaying the taking of
testimony.

It also appears that scenes of violence and public disorder prevented
contestant's attorney from going into some parts of the district where
the witnesses lived, so that he was thereby deprived of much of the first
forty days.

It also appears that contestant did not occupy any portion of the forty
days needed by contested, and that he was not prejudiced at all by
contestant's continuing to finish his witnesses after March 15, for con-
testee did not begin to take testimony in Madison County until the 16th
of April; did not commence in Alachua County until the 13th of April,
two weeks after contestant had got through. He examined altogether
but fifty witnesses, occupying but sixteen days. Ten of these were exam-
ined on the question of the popularity or unpopularity of the candidates.
Contestant offered to agree to give his opponent all the time he wanted
to answer the evidence objected to (record, p. 1066), and urged him to
proceed to do so if he desired, and he obstinately refused, although he
knew that testimony taken after the expiration of ninety days on con-
sent of parties would be received, for such had been the case in his con-
test against J. S. Walls. (House Mis. Doc. No. 58, first session Forty-
fourth Congress.)

He knew of the other facts stated and of the illness of counsel which
lad delayed the taking of the evidence entirely within the first forty
lays. And the committee think that a fair-minded man would have
>een most likely to enter into an agreement allowing further time, and
ic must be presumed to know the previous practice of the Committee
>u Elections to exercise discretion in such matters.

It is also evident that most and probably all of the evidence to which
le now objects did not admit of an answer, as his attempt to answer
)ther evidence of the same kind to which he does not object proved in-
effectual. That taken during the last ten days was such from its nature
that it could not be contradicted or its torce impaired by any counter-
svidence.

It is manifest, therefore, that coute.stee did not suffer and was not prej-
udiced by any delay or the acts complained of.

No complaint is "made or pretense set up that the evidence was not
fairly taken and accurately reported. He had full opportunity to cross-
examine if he desired to do it, and also to answer it after the same was
taken. But he did not choose to do so, and preferred to take the risk of
its being considered. After the case was referred to the committee and
H. Mis. 35 13

194 DIGEST OF -ELECTION CASES.

printed he did not appear or make any motion to strike out the evidence
objected to, so that it might be supplied if the motion was granted, but
took the objection for the first time at the argument.

The committee are clearly of the opinion that the evidence taken
after the expiration of the forty days should be received and considered,,
and they have considered it; that the evidence taken in rebuttal should
also be considered. All of the evidence was taken within the ninety
days allowed by s'tatute, so that in that respect the statute was literally
complied with, and the forty days allowed contestee was more than suf-
ficient for his purposes, as he did not begin until about two weeks after
contestant had finished, and then occupied but sixteen days, while he-
had the offer of all the more time which he desired.

It is manifest that contestee did not believe he could answer the evi-
dence and, in the spirit manifested by his cross-examination, designed
apparently to use up the time, so as to get beyond the forty days, and
by leaving when the forty days were up, and when he knew contestant
was going on to finish his list of witnesses, he was seeking some tech-
nical advantage if he could get it. The testimony in rebuttal, also taken
within the ten days, appears to have been proper and competent, and
should be, and has been, considered. The course of the committee seem*
fully justified by good precedents.

l?o statute can tie the House down to any rules of procedure.

Its provisions are directory, constituting only convenient rules of
practice, and the House is at liberty, in its discretion, to determine that
the ends of justice require a different course. (McCrary, pp. 353, 358,
359.)

In 1st Bartlett, Eep., 223, 224, a Democratic committee held that if
either party desired further time to take testimony after the time had
expired, it was his duty to give notice to his opponent and proceed and
take it and present it to the committee, which would, on good reasons
being shown, receive and consider it.

So, too, in regard to rebutting evidence ; that rests in the discretion
of a court always, even if not strictly in rebuttal. (Heed vs. Kneeas,
Brightley's Election Cases, 416; Eichardson vs. Stewart, 4 Birney, 197.)

Evidence taken seems to have been in rebuttal, and was such as not
to admit of being answered or controverted, and the precise order of
same is immaterial.

Votes proved to have been cast illegally for contestee, by evidence
taken during the last ten days : 15 in Duval, 12 in Putnam, 12 in Saint
John's ; 39 in all.

The whole number of votes tendered and refused, and those for cou-
testee proved to be illegal, involved in all the evidence taken during last
ten days, is precisely 178.

All the rest is in Brevard, showing no registration ; and Xo. 3, Ham-
ilton poll, assailed for fraud and illegality.

If the 178 are cast out of the majority of 442, this would still leave
264. So the objected evidence, if rejected, would not change the result
in favor of contestant.

Your committee therefore recommend the adoption of the following
resolutions :

Resolved, That Jesse J. Finley was not elected as a Representative to
the Forty-seventh Congress from the second Congressional district of
Florida, and is not entitled to the seat.

Resolved, That Horatio Bisbee, jr., was duly elected as a Eepresenta-

BISBEE, JR., VS. FINLEY.

195

tive from the second Congressional district of Florida to the Forty -
seventh Congress, and is entitled to his seat as such.

A. A. KAXSEY. WM. G.' THOMPSON.

W. H. CALKINS. GEO. C. HAZELTON.

J. T. WAIT. AUGUSTUS H. PETTIBONE.

F. JACOBS, JR. S. H. 3IILLEK.

EXHIBIT A.

List of names of electors whose votes were tendered and refused, citing page of record where

testimony will be found.

MARION COUNTY.

No.

Names.

Affidavit in
record.

Toting precinct.

Testimony in
record.

3
4

7
8

9
10
11
12
13
14
15
16

18
19
20

22
23
24
25
26

29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
69
60
61
63

'
Anderson, Charles

Page.
607
607
660
636
619
564
639
548

Flemington

Page.

Barbor Samuel -

490-
496-501
434

Buce or Reese. Harley

Cotton Plant .. .

Bennett, Moses

Millwnnd .......

Burnev, Ned

c Borco Paul, jr

Cotton Plant

501-505
462
548
481
497-501
483
434
419
42T
469
427
483
427-458
426
501
531-576
457
496-501
427-437
425
496-501
494
417
427-473
494-501
427-433
483
443
452
490
473
501
501
427-434
427-478

Shadv Grove

c Bost wick, George

564
601
632
618

Cotton Plant .

Brown Amos

Flemington .

Calvin Alex

Millwnnd ,

c. Carlisle, William

Shadv Grove

Carroll, Alex

Millwood .

Ca&ton, David

549

* Colding, Frank

*Colding Frand .....

Flemington

643
652
580
576
623
585
650

Millwood

Cotton Plant

Shady Grove

Dart.Budd.

Mill wfwwl

Cotton Plant

Davis Jockey

Millwood

Cotton Plant

589
656

No. S

Millwood

590

Cotton Plant

Elkius Manuel

Millwood

600
637

Flemington

Evans, Ranee

""594"
659
582
635
593
599
635

Flemington
Millwood

Cotton Plant

Millwood

v ' A

No. 1

V ' T ' 1

Millwood

429
427

TT ' ' T 1TTT7

-, ,.~ b p ' pa

598
653
651
645
641
617
570
574

Vo S

tttuowaY, .rrmce

Millwood

448
427
427-451
427-472
419
493
501
469
470

....do

..do

P 1 D T '

Shady Grove

p i \r i T ']-

Cotton Plant

C. UU c i

X tn

"Millwood ..

. . i\n .........

trreen, iJavio.

625

427-453
473
427
483
446
443
440
455

riainiiipii. u ..........

615
049
614

Millwood

TT . - > T <

TT ' w' i

Flemington

T i i ri it-

Afillwood . .

Jackson. Calhoun

....! do

Jackson. David .
Jackson. Kicbard...

631 do
do

196

DIGEST OF ELECTION CASES.

EXHIBIT A Continued.
MARION COUNTY.

Names.

Affidavit in;
record.

1
Voting precinct.

Testimony in
record.

Page.
657

...do ..

Page.
477

634

427-473

568

Cotton Plant

497-494

No.2

410-411

600

Flemington

412-415
484

648

Millwood

467

iff*

658

Cotton Plant

501

418

594

473

"79

585

Cotton Plant

499

610

Flemington

Lake Wier

506

No. 2

410-411

7fi

624

Millwood

442

612

Flemington

, 483-484

McCalium Wash

592

Cotton Plant

495-501

McCradle Johnson

640

Millwood

447

.do

435

583

Cotton Plant

500

Miller Wilev

No.2

435

572

Cotton Plant

501

-84

546

No.2

411 412

255

Mitchell Martin

586

Cotton Plant

494

.ftfi

436

602

Flemington

483

621

427-450

^j9

642

do . .

476

No. 2

534

*Plair Robeit

646

621

468

.. . .do

466

633

465

4)5

Rawls Calamus

603

Flemington

481

47 \)\)]z

587

Cotton Plant

494-501

609

47'J

611

do.

481

613

483

101

Robinson Wash

. do

483

102

Riley William

596

No. 1

J.03

Roberts, Alex

688

Cotton Plant

497

IftA

Millwood

427

105

Rutledge Thomas

440

106

Sams. Charles

464

107

Scofield Daniel C

475

108

Scarvel Wary

605

483

Scott Frank

456

iio

Small, Peter

641

do.

442

111

Smith, Louis

575

No. 2 \

533-410

112

Shaw Peter

581

411-412
501

113

Stark Wyatt

47-445

114

Stoggers. Henry

579

501

115

Swain, Thomas

584

501

lift

631

455

117

Terry, Pleasant

do.

497

118

Thomas Gabriel

507

119

Thompson, Bnrrell

647

427 550

120

Tillis, Robert

547

No 2

121

Turner, Robert

471

122

! Tyson, William

622

427 437

123

Yancross, Neptune

do.

461

124

Ward, Perry

472

125

c. Washington, Cuffy.

No.2 .

414

126

Washington, George...

609

486-487

127

Weathers, Sam)

628

128

Williams, George

626

129

Williams, John

501

130

Williams, Solomon

do.

436

131

Williams, Thomas

577

501

132

Williams, Wade

591

495

133

Williams, William

629

494

134

Willianl, Jack

494

135

Wilson, Kphiiam

606

444

136

Wilson, George ^

427

137

Wright, Richard

445

i.38

Young, Ira

644

. . do

461

BISBEE, JR., VS. FINLEY.

EXHIBIT A Continued.
ORANGE COUNTY.

197

No.

1
2

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31

Record.

Registra-
tion.

Remarks.

Amos, George .

Page.
749
754
752
759
763
755
763
748
751
760
753
750
757
756
753
750
764
754
763
759
763
758
754-760
757
758
T56
763
761
749
751
752-753

Registration sworn to.
Do.
Do.
Do.
Arrested at polls.

Registration sworn to.

Registration sworn to.
Do.

Registration sworn to

Registration sworn to.
Do.
Do.
Do.

Registration sworn to.

Registration sworn to.
Do.

Registration sworn to.
Registration sworn to.
Registration sworn to.

A i ii <is . Henry

Berry, Joseph

Bow en, Samuel

1,041
1,041

English Randall

Hartly J. "W

1,044

Harper Daniel

Hill, Nelson

Humphreys, Wyatt

1,044

Johnson, George W

1,044
1,046

Madison, James

McFadden, Prince

McKnight, Solomon

Reeves Thomas

1,047

Reynolds W. E

Robertson Win . W

1,047

Robinson, Marshall

Robinson, Riley .

Sherman, Allen

1,048
1,049

Single, Charles

Shodrick, Adam

Smith, Reuben

1,048

Stevenson, Isaac S

Tillman, Austin

1,049

Walker, Dick

Williams, George

1,050

PUTNAM COUNTY.

Calvin, R. W

825-826
830

Registration sworn to.
Do.

Jefferson, John

VOLUSIA COUNTY.

1
2
3
4
5

Hunter William

835

835
833
834
833

Registration sworn to.
Do.
Do.
Do.
Do.

Roe, Alfred

Telfair Mack

Wellsburg, George

COLUMBIA COUNTY.

2
3
4

Brown James ...

846
846
845
843

Registration sworn to.
Do.
Do.
Do.

Daniels Frank

Johnson, Israel

Weston, Richard

SAINT JOHN'S COUNTY.

850
850

Registration sworn to.
Do.

Heifer William

NASSAU COUNTY.

810, 811

Registration sworn to. Tide affi-
davit, ballot attached. Record,,
page 812.

198

DIGEST OF, ELECTION CASES.
EXHIBIT A Continued.

ALACHUA COUNTY.

No.

Record.

Registra-
tion.

Remarks.

Parker's Store poll.

Page.
347

Registration sworn to.

370

Do.

364

Do.

Roberts David

367

Do.

Wright Richard

346

Registration sworn to, 355.

Archer poll.

314

Registration sworn to.

316

Do.

317

Do.

316

Do.

Taylor Peter

315

Do.

Waldo poll.
Name not given

Vote cast on ballot. Finley's name

HAMILTON COUNTY.

? Names not given

erased, and Bisbee's name writ-
ten. Rejected by officers. (Rec-
ord, page 292, 292.)

C Two legal votes cast not counted.

{ (See Record, page 840.)

List of 83 electors whose votes were tendered and not received at Live Oak poll. (Record, 794. )

(Copy of registration book, record, page 789.)

SUWANEE COUNTY.

No.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35

Names.

No. on reg-
istration
book.

Remarks.

Archibol, Henry

Reg

29
28
37
40
41
127
106
112
128
110
108
130
117
151
157
158

See name, record, 772.
See record, page 794.

See record, page 786.

See record, page 781.

See record, page 785.
Swears to registration, 774.

See record, page 786.

See name, record, page 768.
See record, page 776.

See record, page 781..
See record. nn"c 7" 4.

Bryant Amos

Covin r ton J. T

Bright Daniel

Davis Thomas

156
164
163
189
184
194
166
187
165
193
196
205
293
198
233
240
235
243

Emmons, Alonzo

Evans. William

Farnell, Henry

Fields, Lewis

Fields, John

Fields, Philip

Fields, Thomas -..

Figgs, Benjamin .

Frazer, Lee

Goodman, Nat

Griffin, Solomon

Grimes, Adam

Grimes, Thomas

Henderson. Lewis

Herring, Horace

Holmes, John

Holmes, Phillin. ..

BISBEE, JR., VS. FINLEY.
SUWANEE COUNTY Continued.

199

NO.

36
37

38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59

61
62
63
4
65
66
67
68
69
70
71
7-J
73
74
75
76
77
78
79
80
SI
82
83

Names.

No. on reg-
istration
book.

Remarks.

Homer, Henry

234

248
280
269
285
272
281
283
288
299
297
290
328
334

See record, page 781.

See record, page 794.

See record, page 775.

Swears to registration, 777.
See record, page 785.
Swears to registration, 785.

See record, page 782.
See record, page 773.

See record, page 768.
See record, page 783.

See record, page 783.

See record, page 777.
See record, page 781.

-
See record, page 781.

Hooker, Warren

Jackson, Benjamin

Johnson, M. J

Johnson, Robert

Jones, Andrew

Jones, E.J

Kin" Vernal

Lambert, Jackson

Lee Dempsey

Lewis, Moses

McClellen, Edward

::::::::::

McGee. Henry

McLeilly, Peter

::::::::::.:::

Marshall, George

326

Mattair, Harry

Mitchell, John

323
303
344
324
341
305
325
345
365
377
375
369
378
385
428
425
421
447
443
419
431
503
541
542
558
558
566
545
551
559
565

Mitchell, Tony

Molton, Edward

Moore, James

Morgon, Solomon

Moton, Carter

Murphy , Henry

O'Veal, John

Owens, Tonv

Patterson, Alexander

Phillip, Richard

Reddick Charles .....

Roundtree Alex

Sands, Hays

Smith. Henry

Stephen. Chester

Stewart, William

Stofford, Adam

Swaim, Primus

Taylor, Shode

Washington George

White, James

Wigoins, Lewis

Wifson, Ned

Wilson, Thomas

Williams, Gainer

Williams, Lewis

Williams, Samuel

Williams, Thomas

EXHIBIT B.

List of alien-born persons who voted for contestee without exhibiting naturalization papers
or declaration of intention to become citizens.

Record
page.

Remarks.

ALACHUA COUNTY.
Molly J W

292, 293

Challenged.

DUVAL COUNTY.

Dolan DA .

1213

1214

Fallen Patrick .

1211

1212

1213

1212

1214

1213

1211

1215

Tischler Phillip

1211

1210

Witscken, J. D...

1214

200

DIGEST OF 'ELECTION CASES.
EXHIBIT B Continued.

Record
page.

Remarks.

MARION COUNTY.

409

421, 535

423

410 j

509,511 '

Madden Patrick

429, 479

Mversoa Albert

409 !

Schnierin I

501 i

Shaffer Charles

408

Stewart, James

483, 486, 487

Ward, Timothy

424

NASSAU COUNTY.

801

*>8

Fitzgerald Robert ............

799

Kitzpatrick Thomas

801

Gage Henry

805

Glaibee, Albert

803

Leigour, Joseph

806

Lehman, A. W .-

807

Li >1 11 1 urn . J. F

804

3f>

Hobin, Henry

799

Henderson, R. W

806

Huot, C.H

806

King, H. W

802

Klutz, Julius....

802

Me Walters, James

801

Mode, Joseph

799

41 1

Mooney, I. H

807

Nickola, G

799

Paton, M. J

805

Peterson, Henry

804

Rutishanser, J. C

802

Schnitger William . ............

803

Steele Arthur ..... . .......

803

Stork, Gustav

803

Seydel A . . . . ..

806

PUTNAM COUNTY.

Gresham, John..

827-831

iTers, Jiio. M

818

5?,

Ivers, William

820

Lelienthal, B. L .

819

Mann, A. W

821

Meyers, J.M .... ....

819

Miller, George

823

Peterman, H.

822

Peterman, Peter

821

Richmond, L

820

Sal c i w s k i . J. H......

819

Shalley, Thomas

822

SAINT JOHN'S COUNTY.

853

Britt John

853

All numbered from 62

853

to 73, but 3, were chal-

853

lenged.

853

Testimony of D. M.

853

Sappy, Record,. 853

853

849

853

BISBEE, JR., VS. FINLEY. 201

EXHIBIT C.
Miscellaneous illegal votes cast for contestee.

ALACHUA COUNTY.

Page of record.

1. G. T. Thigpen, non-resident 299-292;

2. S. P. Phillips, non-resident 291

3. C. E. Whiting, non-resident 291,292;

MARION COUNTY.

1. Reuben Storke, convict 513-666-

2. G. W. Pendervis, convict 509-571

3. R. V. Pendervis, convict 509-571

4. John Geiger, convict 489

5. Luther Geiger, convict 489-

6. Samuel Geiger, convict 489

7. R. T. Meany, non-resident 411

8. Allen Thompson, non-resident . 478, 479*

PUTNAM.

1. Frederick Morvick, unregistered 827,828-

HAMILTON COUNTY.

1. James Kite, non-resident 838, 839 1

2. Chester A. Register, non-resident 839"

3. Condasy Oxendine, non-resident 840

COLUMBIA COUNTY.

1. Pery Keene, minor 845

2. John Harvey, non-resident 847,848

SAINT JOHN'S COUNTY.

1. James M. Owens, non-resident 850,851

2. T. W. Murdock, non-resident 850,851

3. Daniel Bootright, non-resident 851

4. H. L. Ballard 51

DUVAL COUNTY.

1. Frank Wright, voted twice 1217

BISBEE vs. FINLEY.
Summary of results on case made ~by contestant, as claimed.

Votes.

1. Votes tendered and rejected which should be counted for contestant, Ex-

hibit A -- --:- 268

2. Illegal votes east for Finley by aliens without exhibiting their naturalization

papers, Exhibit B j""VT"

3. Illegal votes cast for Finley by persons disqualified on various grounds, Ex-

hibit C.... 2 ' 2

ALACHUA COUNTY.

4. Arredondapoll. Reject this poll and count for Bisbee 191 votes proven in

excess of returned vote "L". iV

And deduct Finley's vote, 172 (not having proven any vote for himself,
none can be counted)

202 DIGEST OF ELECTION CASES.

-5. Newnamville poll. Reject this poll aiid count for Bisbee 18 votes proven in

excess of returned vote 18

And deduct Finley's returned vote, 146 (not having proven any votes

for himself, none can be counted) 146

6. Parser's Store poll. Reject this poll and count for Bisbee 28 votes proven

in excess of returned vote 28

And deduct Finley's returned vote, 155 (not having proven any vote for

himself, none can be counted) 155

7. Madison County. Correct frauds by adding to Bisbee's majority in the

county 371

Total of above corrections 1,445

Deduct Fiuley's apparent majority 1, 003

Bisbee's majority 442

For sake ot argument, concede to Finley difference (255) between total re-
turned vote at the two polls of Newnansville and Parker's Store, and the
number proven for Bisbee, which is all that he possibly could have proven
had he tried to prove his vote, and add to Finley's votes 255

Leaves Bisbee a majority of 187

True majority brought forward (442)

OTHER QUESTIONS.

3. Brevard County. Set aside election and deduct Finley's majority, 148 148

9. Hamilton County. Poll No. 3. Set aside elections and deduct Finley's

majority 68

10. Orange County. Fort Christmas poll. Return unsigned by officers ; reject

and deduct Finley's majority 27

11. Nassau County. Odurns Branch poll, Reject returns and deduct Finley's

majority 30

12. Bradford County. Correct results by deducting, pro rate, 76 votes unregis-

istered at polls Nos. 2, 3, 5, and 7, by which Finley loses 70 votes and Bis-
bee 5 (excluding fractions), reducing Finley's majority 65

13. Marion County. Reject return Moss Bluff poll, and deduct Finley's majority. 59

Upon whole case Bisbee's majority is 839

BISBEE vs. FINLEY.

APRIL 21, 1882. Mr. BELTZHOOVER, from the Committee on Elections,
submitted the following as the

FIEWS OF THE MINORITY:

We respectfully submit the following statement of the conclusions at
-which we have arrived, and the reasons therefor, in the contested-elec-
tion case of Bisbee vs. Finley :

This contest comes from the second Congressional district of the State
of Florida, which is composed of seventeen counties. The election was
held on November 2, 1880, and the official returns filed in the office of
the secretary of state show that Mr. Finley received 13,105 votes and
Mr. Bisbee received 11,953. (See Record, 1056.) The official majority
received by Mr. Finley was therefore 1,152. On January 15, 1881, Mr.
Bisbee served a notice on Mr. Finley contesting his election and attack-
ing the polls in all the counties of the district but one (Clay). On Feb-
ruary 3, 1881, Mr. Fiiiley served his answer on Mr. Bisbee, replying to
-and denying fully all his alleged grounds of contest. (See Record, 1-18.)

BISBEE, JR., VS. FINLEY. 2<>3

On the issues raised by the notice and answer over 1,200 pages of testi-
mony were taken.

For convenience, and the ready and intelligent application of the law
to this case as presented by the record, it is deemed necessary to state
the principles involved in its determination.

The constitutional and statutory provisions relating to suffrage may
be divided into two classes : .First,'uiaudatory, which define the right of
suffrage, and, secondly, directory, which direct the manner of its exer-
cise. The former relate to the substance of the right; the latter to
the mode of its exercise. The former confer the right ; the latter are
as so many safeguards to conserve it. The right is derived from the
former and its exercise regulated by the latter. The former determine
the 2)Hmal and ultimate authority in the Government; the latter serve
as means to invoke and give force to it. The means being subordinate
to the end, it follows that directory provisions, whether constitutional
or statutory, must be liberally construed, and so applied as to give
legitimate force and efficacy to the icill of the sovereign power in the
State. A different rule would subordinate the substance to the shadow,
and would in the end substitute technical quibbles for the ballots of
the qualified electors. The primal inquiry is, Whom did the qualified
electors choose, as evidenced by their ballots cast or offered but refused ?
The ascertainment of the will of the qualified electors is the end of
directory statutes, and this attained, "the reason ceasing the law also
ceases."

The House is the exclusive judge of the qualifications, elections, and
returns of its own members. In the exercise of this prerogative it is not
bound by the technical rules of judicial procedure, nor even by its own
precedents. These may be persuasive, and, in so far as they embody the
wisdom of experience, enlighten the mind and contribute to right cou-
clusious. In the exercise of this attribute of sovereignty the House is
charged in the ultimate with the maintenance of the right paramount
and preservative of all other rights the elective franchise. Therefore
the House is absolutely uutrammeled, and answerable only to the sov-
ereignty where this power emanates. The electors can and should accept
no apology for any evasion or abuse; every case should be decided upon
its own merits, and electors should accept no other conclusion than the
vindication in fact of the right of representation. Technical quibbles
should never be permitted to defeat honest ballots, for the plain reason
that so long as the people have the power, and do actualh choose the
law-makers, they have had it in their power to eliminate or amend what-
ever works injury to their rights or prosperity. And whatever affects
seriously that right touches the vitals .of the Kepublic. We cannot,
therefore, be too cautious or circumspect in deciding a contest involving
a seat in this House. And if we are wise and patriotic, we will be aided
by rules whose soundness has been attested by experience.

'The returned member, by the familiar rule, "Officers are presumed
to have done their duty/' is supposed to have been duly elected. This
presumption should be maintained unless repelled by conclusive evi-
dence. If a return, local or general, be attacked for fraud or illegality,
the testimony of officers holding the election is of great weight, because
of opportunities to know, and the motive of duty to observe all things
relating to the election in their charge ; and such is the weight of their
evidence that it cannot be overthrown by circumstantial evidence unless
so strong as to admit of no reasonable hypothesis compatible with the
truthfulness and integrity of the officers.

The first point made by the contestant in his brief is "that the county

204 DIGEST QF ELECTION CASES.

canvassing board of Madison County arbitrarily rejected the returns from
two election districts, from which 325 votes were returned for contestee
and 474 for contestant," thereby giving contestant 149 majority. The
contestee replies that there is no specification of this claim by the con-
testant in his notice of contest, nor anywhere else; that not only was
there no notice of this claim, but no testimony was taken on the subject
to support it. On the contrary, the contestant's notice of contest stated
that he would ask to have all the returns from Madison County " re-
jected as illegal and fraudulent."

This is what contestant says in his notice as to Madison County :

MADISON COUNTY.

In this county the gross fraud was committed by your political friends of stuffing
the ballot-boxes with ballots containing your name for Representative to Congress, and
drawing out from such boxes ballots containing my name for Representative to Con-
gress, at each of the two polls in the town of Madison, and at each of the several polls
in the said county known as Cherry Lake, Hamburg, Greenville, and the two polls at
Mosely Hall, and at each of the other polls in said county, whereby I was cheated and
swindled out of five hundred or more votes. I shall ask that the returns from each of
said polls be rejected as evidence of the true vote cast, and that the votes actually cast
for me be counted as cast. I shall ask that the county canvass be rejected as illegal
and fraudulent.

This certainly was no notice to contestee that contestant proposed to
do the very opposite of his notice, and ask to count instead of reject.
It was reasonable for the contestee to suppose that contestant, in claim-
ing that the whole county should be rejected, would be content to pass
over the two precincts that were already rejected. The contestant him-
self attacked these two precincts in his notice of contest. They were
rejected by the county canvassing board upon what, in the absence of
all proof, must surely be presumed to have been legal ground, and no
testimony was taken to show that they were improperly rejected or
should be counted. It is a strange position for contestant to take at
the conclusion of the contest to ask that returns that were rejected
in the official canvass, returns that he himself asked to have rejected
in his notice of contest, and that no evidence is adduced to show were
not rejected properly, should now be counted. This claim is so uncer-
tain and dubious that in no part of the whole case, from the beginning to
the end of the contest, were the two precincts named, and not until con-
testant filed his reply to contestee's brief, after the argument was over
and the case submitted, did he disclose the names of these two pre-
cincts. We can entertain no doubt that this claim of the contestant
should be disallowed.

We next comje to the first county attacked by contestant.

ALACHUA COUNTY.

In this county three polls are assailed by contestant, to wit, Arre-
donda, Newnansville, and Parker's Store. (Bee., p. 3.) The following
is the reference to this county by contestant in his notice :

That at the Newnansville poll, and the Arredonda poll, and Parker's Store poll, iu
Alachua County, the gross fraud was perpetrated by your political friends of stuffing
the ballot-boxes with ballots containing your name', and ballots containing my name
for Representative to Congress were taken out of the boxes, so that the total vote
cast for me was not returned ; and I shall ask that the returns from these three polls
be excluded as evidence of the vote cast, and that the total vote cast for me be
counted as cast at these polls.

BISBEE, JR., VS. FINLEY. 205

Arredonda poll.

The contestant asks that the return from this poll be rejected, and
that no votes shall be counted for either candidate except such as each
has proven by evidence other than the return.

The grounds upon which contestant asks to have this return set aside
and disregarded, and the vote proven by aliunde testimony, are as fol-
lows :

1. That the ballot-box was purposely concealed from the public view
by a passage-way erected to the polls.

2. That the vacancy in the election board occasioned by the absence
of the Republican inspector was illegally tilled.

3. That a Republican watcher was not allowed in the voting-room.

4. That the officers of election used whisky, and that Virgil George,
the Republican inspector, was drunk.

5. That the ballot-box was thrown under the table, or so handled in
the poll-room as to indicate fraud.

0. That the ballot-box after the election was in the custody of the in-
spector, who had the key.

7. That the election board, in violation of the law, adjourned and
went to supper before counting the vote.

This is a full and fair statement of the grounds alleged, and from
which it is claimed such fraud and irregularity are to be inferred as to
discredit the returns and reject the poll. In support of these allegations
the contestant called five witnesses, viz : J. T. Walls, a colored man,
who was a candidate for State senate ; Jack Trapp, a colored man, who
was a United States deputy marshal, and a brother of the candidate for
the legislature; Edward Sammons, who was United States supervisor;
Charles Dubose, president of the Republican club, and Ransom Baskins,
who was the Republican tally clerk.

Against these charges of fraud the coutestee called W. T. Rice, a mer-
chant, railroad agent, and postmaster of Arredonda; J. R. Flewellen,
a Democratic inspector; Samuel D. Reed, a Democratic inspector;
Virgil George, a colored man, and the Republican inspector; Samuel C.
Tucker, the clerk of the election ; Amos George, a colored voter ; W. R.
Mills, a country merchant, and Julius A. Carlisle, the clerk of the circuit
court. We have, therefore, five witnesses on the one side to show the
fraud, and eight on the other side to disprove it. We will take the points
up in their order, and give the language of the witnesses in support of
and against each.

1. W T as the ballot-box purposely concealed from public view by a
passage-way to the polls ?

For the contestant :
J. T. Walls swears :

What I mean by keeping order is that Mr. Cisero Nichols, deputy sheriff, at or about
the opening of the polls, there being such a cluster of people, made a passage-way to
the polls about sixteen feet loug out of boards, and wide enough for two persons to
stand side by side, and there was a place for them to pass out at the window end after

voting.

Ransom Baskins swears :

Q. Cau you describe the interior of the room where the voting occurred and the
canvass took place ? A. There were two rooms connecting with the polling-room.
Between the store and the polling-room there was a passage-way which was open.
When they came back from supper they did not bring the box to canvass the votes
into the same room where the voting had taken place, but they took it iuto another
room under the same roof. [Witness here draws a diagram of the building in which

206 DIGEST OF 'ELECTION CASES.

the voting takes place, which is introduced and filed in evidence, and marked Ex-
hibit R.]

For the contestee :
W. F. Kice swears :

Q. Do you know or did yon hear any complaints of the election being so con-
ducted at that poll so that* the qualified voters who were present did not have the
opportunity to vote ? A. I heard no complaint of that kind.

J. K. Flewellen swears :

Q. State whether or not the said election at Arredonda was so conducted that all
the qualified voters present were allowed to vote without interference or hinderance.
A. It was.

S. D. Keed swears :

Q. What disposition was made of the ballot-box? A. It was in the custody of the
inspectors, and in full view of the voters.

Q. Can you state whether or not the ballot-box was kept in the presence of the in-
spectors, and not concealed from the public, the whole time from the opening of the
polls until the closing of the canvass ? A. The- ballot-box was at all times, from the
opening of the polls until the closing of the count, in the presence of both the polit-
ical parties and two or more of the inspectors, and not concealed from the public
view.

In addition to this testimony all the witnesses swear that the election
was fairly conducted and peaceable. We do not think, therefore, that 011
the evidence this allegation of fraudulent concealment of the ballot-box
is sustained.

2. Was the vacancy in the election board illegally filled ?

The testimony on this point is as follows :
For contestant :

J. T. Walls swears :

Q. Were all the inspectors there when the polls opened ? If any were absent, state
whom, and if you know the cause of his absence, please state. A. They were not ;
Ephraim George was appointed by the county commissioners ; was absent. He was,
as I understand, out of the county for about a year, and had not returned up to the
time of opening the polls. I understood that the sheriff had a warrant for him for
forging a note.

Q. State, if you can, how the vacancy caused by his non-appearance was filled.
A. By the inspectors.

Q. Can you state whether or not the majority of the electors present at the polls
when George was appointed an inspector by the other inspectors were in favor of said
George to act as such, or did they express themselves as dissatisfied, and want to have
the privilege of electing an inspector themselves to fill the vacancy ? A. I heard
some of them express themselves as objecting to the manner in which George was
made an inspector, but no objection to George, claiming that they had the right to
elect an inspector.

Q. Was Virgil George, the inspector who you mention in your direct testimony, a
Republican or a Democrat, and was he a white man or a colored man ? A. He is a
Republican in politics and a colored man.

For contestee :

Mr. J. E. Flewellen swears :

Q. How came Virgil George to be chosen as inspector, and how came he to act as
such ? A. The name of Virgil George was sent to the clerk, as we understood, and by
mistake the clerk entered the name of Ephraim George. The saidEphraiin George had
not been for some years a resident of this county.

Q. Was Virgil George present on the grounds at the opening of the polls on elec-
tion day ? A. He was.

Q. State whether or not the said Virgil George was regarded generally, both by the
Democratic and Republican voters present, as well as by the inspectors, as the person
intended to be the Republican inspector at the polls on that day. A. He was; he
was considered by everybody as the man appointed to be inspector at said poll.
Q. Was any opportunity offered by the inspectors present to choose an inspector
in his place if he had not been KO regarded? A. There was.

BISBEE, JR., VS. FIXLEY. 207

Q. Did they avail themselves of this opportunity, or did they decline to do so ?

A. They said nothing about it.

Q. Was there any objection interposed to his acting as inspector? A. None that I
heard of.

Q. Were any Republican representatives or officials admitted into the polling
place at said election in Arredouda during the election and canvass of the vote on-
that day ? A. There was.

Q. Was there or not any distinction made by the inspectors in that respect between
Democrats and Republicans ? A. There was none.

Q. Who first asked Virgil George to act as inspector of said election ? A. I don't
know. It was generally conceded by whites and blacks of both parties that he was
the inspector. Virgil told me so; also of the mistake in print, and asked me what to-
do about it. I told him if any objection was made I would have an election at the
polls for an inspector : there being none, he acted as one.

Q. Did you or Mr. Reid, or either of you, give any formal notice that there was a-
vacancy among the inspectors which the voters present were entitled to fill then and
there by election ? A. Immediately before going into the room to be sworn in, the
question was asked by several colored men in the crowd who were the managers or
inspectors. I told them that myself and L. D. Reid were the Democrats, and Virgil
George was intended for the Republican ; that he was the only man who can read
and wiite, and I supposed that he would act, as they had none other that could do it
in that party here. I told him to go in, and if there was any objection made we would
have an election.

Q. Did you make any further notice after you were sworn in, you or Mr. Reid f
A. We did not.

Q. About how many voters were present at the polls at the time you opened them f
A. I don't suppose there were five absent of all the voters who voted that day.

Virgil George swears :

Q. Were you at Arredonda at said election ? A. I was.

Q. Did you or not act in any official capacity at that election; and, if so, what?
A. I did act as inspector: was elected inspector that morning.

Q. Why was it that you acted as such inspector? A. I understood that the clerk
had made a mistake when Ephraim George, my son, was appointed inspector, as he
had been absent from the county for two years previous to the election, and that I
was the party intended to be appointed.

Q. Are you and were you at the time of said election a Republican or Democrat f
A. I am a Republican, and was at the time of said election.

Q. Were you drunk or sober on that day? A. I was sober.

Q. Was there not any objection made by any of the voters present to your acting.
as inspector ? A. None that I know of.

Q. Did you or not, while you were acting as inspector, feel anxious for the success
of the Republican party, and did you not consider it to be your duty to watch and
protect the interests of 'that party at said election ? A. Yes, sir ; I did.

Q. Were you so watchful of that interest ? A. I was.

Q. Can you state whether or not said election was a peaceful and fair election, or
otherwise ? A. It was a peaceful, fair, and square election, as far as I could see.

Sam D. Reed swears :

Q. State whether or not it was understood that Virgil George was intended to be
one of the inspectors at the election at Arredonda precinct ? A. It was. It was by
mistake that the county commissioners appointed Ephraim instead of Virgil George,
as the said Ephraim George was not at the time a citizen of this county.

Q. State whether or not said election at Arredonda was so conducted that all the
legal voters present had an opportunity to vote, whether they were Republican or
Democrat. A. So far as I know every one had an opportunity to vote as he pleased.

Q. You state on your direct examination that Virgil George was intended as in-
spector for Ephram George. Now, state if that was the intention of the county com-
missioners. How do you know it to be so ? A. My impression is derived from the
fact that Virgil stated it, and it was the general impression throughout the county.

The testimony very clearly shows that there was no fraudulent pur-
pose in the appointment of Virgil George as tho. Republican inspector
at this poll, instead of his son Ephraim, who seems to have been named
by the commissioners by mistake. Indeed it is hard to see why the
contestant should complain of having an honest man of mature years,
and to whom Mr. Walls says there was no objection, instead of a young
man who was a criminal and a fugitive from justice. The appointment

208 DIGEST OF ELECTION CASES.

was not strictly or technically correct, but it was honestly made and no
harm resulted.

3. Was a Republican watcher refused admission to the voting-room ?

The testimony on this point is as follows :

For contestant :

J. T. Walls swears :

Q. Can you state, of your own knowledge, whether or not a representative to act
in behalf of the Republican party inside of the polling place was nominated and pre-
ferred by the Republicans present at the polls was made and appointed ? And if
there was such representative nominated and appointed, state, if you can, his name,
and whether or not he acted, or was allowed to act, in such representative capacity
inside of said polling place. A. I can. There was one nominated and preferred;
myself, J. T. Walls, was the person. I did not act ; I was not allowed to act ; in-
side of the polling place. I was refused admission into the room or polling place
by the clerk, Samuel C. Tucker, and the inspectors, J. R. Flewellyn and Samuel D.
Eeid.

Q. State the objection they made to your admission inside. A. Mr. Flewellyu's
objection was that I was an interested party, being a candidate for the senate.

Jack Trapp swears:

Q. Were you there when a Republican representative was chosen to act inside of
the polls ? If so, state his name, and whether or not he was admitted, and tell all
you know about it. A. I was there when there was one chosen ; his name was J. T.
Walls; he was not allowed inside of the polling place. The inspectors refused ad-
mission. The inspectors who refused him were Flewellyn and Reid, because he was
an interested party.

Edward Sainmons swears :

Q. Were you a Republican and a supervisor at Arredonda at the last election ? A.
I was.

Q. What did you regard to be your duty as such supervisor ? A. It was to look out
for all frauds that might happen against the Republicau party that day.

Q. Was that all the duty that you thought devolved upon you as such supervisor ?
A. I had it in my mind that it was niy duty to see that each party was dealt fairly
and squarely by, and if there was any frauds made I was to make a report to the
chief supervisor of the State.

Q. Did you or not make such report; and, if so, to whom did you make such report
as such chief supervisor ? A. I brought Mr. Hughes a blank report; I furnished all
the facts, and got him to fill it out for me.

Q. Have you a copy of that report ? A. No, I have not got it now ; it was burued
up in my house.

Q. What time was this report made after the election ? A. The second day after
the election.

Q. Who was Mr. Baskin, whom you say was called on by the inspectors to tally the
votes ; was he a Republican or Democrat ? A. He has been a Republican, but I can-
not say what he was then.

For contestee :
J. E. Flewellyn swears :

Q. Was or not J. T. Walls an applicant to be admitted into the polling place as a
Republican T A. He was not until dark ; then he made direct application to me,
through Mr. Reid, one of the inspectors. I refused on the grounds that he had a rep-
resentative, and that he was a party at interest, being a candidate for the State
senate. Hia representatives were Edward Sammons, and another whose name I do
not now remember ; those parties were admitted to the polling place.

Virgil George swears :

Q. Were there or not any Republican representatives interested in the success of
the Republican party admitted into the polling-room during said election and during
the canvass of the vote? A. Yes, sir; Edward Sammons, acting as supervisor, and
Ransom Baskins were admitted.

Q. Were they present during the voting and canvassing of the vote ? A. Ed. Sam-
mons was present all the time, and Ransom Baskins spent most of his time outside
while the voting was going on, but was present after the polls were closed.

This testimony discloses that the contestant was fairly represented

BISBEE, JR., VS. FINLEY. 209

by zealous friends duriug the day of the election at the polls and at the
ount of the votes. ' Mr. Sammons swears that as United States super-
visor he regarded it as his special duty to watch the interests of the Re-
publican party, and did so. It is also shown that while Mr. Walls may
have been legally qualified to act as a watcher inside of the polls, it was
highly indelicate and improper that he should have insisted on acting
in any capacity in the conduct of the election at which he was a candi-
date for a high office. It was a technical violation of the law to refuse
him permission to act, but there is no evidence whatever that he suf-
fered any harm by being refused ; but, on the contrary, the evidence
shows that he himself did not claim that there was any fraud commit-
ted by reason of his exclusion. It is also shown that he did not make
application until evening.

4. Were the officers of the election disqualified by using whisky, and
was Virgil George, the Republican inspector, drunk ?

The testimony on this point is as follows :

For contestant :
Ransom Baskins swears :

Q. Was there any liquor in the room while the canvass of the vote was going on;
and, if so, how much did you see, and who had it; and was it or not all drank be-
fore the votes were canvassed ? A. Yes ; there was liquor ; I saw one bottle and a
flask. Everybody who had anything to do with counting the votes was drinking
that whisky or liquor. I think that it was all drank.

J. T. Walls swears :

Q. Can you state, to the best of your knowledge and belief, that Virgil George, the
party who acted as inspector, and who you say was appointed by the other inspectors
to fill the vacancy, was in a fit condition to perform his duties, or, if he was,'was he
competent to ? A. When he was taken to their assistance by them I thought that he
was drinking some ; my opinion is that in a sober condition he would be fully compe-
tent.

Ransom Baskins swears :

Q. Was not Virgil George, one of the inspectors, pretty well filled up with whisky
or some other intoxicating liquor ? A. I saw him drinking, and at times saw him with
his eyes shut and his head nodding.

For coutestee :

Samuel D. Reid swears :

Q. Do you know the inspector Virgil George? And, if so, state whether or not he
is, and was at the time of said election, a Democrat or a Republican. A. I am ac-
^uainted with Virgil George. I have every reason to believe that he is, and was at
the time of the election, a strong Republican.

Q. Was he drunk or sober on election day ? A. He was sober.

Q. Does not Virgil George bear the reputation of being a dissipated man, and have
you seen him frequently intoxicated ? A. I don't think he bears that reputation. I
think I have seen him intoxicated about twice in three years.

Virgil George swears:

Q. Were you drunk or sober on that day? A. I was sober.

Samuel C. Tucker swears :

Q. Please state whether or not Virgil George on the day of said election drank any-
thing intoxicating ? A. I don't know, because I did not see him do it.

The testimony further shows that the officers of the election were men
of high character for integrity and honor, and had no interest in the re-
sult. It is respectfully submitted that there <is nothing to maintain this
point.

5. Was the ballot-box thrown under the table, or so manipulated and
used in the poll-room as to prove that a fraud was committed f

H, Mis. 35 14

210 DIGEST O'F ELECTION CASES.

The evidence on this point is as follows :
For contestant :

J. T. Walls swears : ,

Q. Was the ballot-box concealed at any time before said adjournment from the pub-
lic view ; if so, where was it? A. It was. When the polls were announced to be-
closed, the clerk of the election, Mr. Tucker, reminded the inspectors to be careful
with the ballot-box, and Mr. Flewellyn, one of the inspectors, took the ballot-box off
of the table where it was sitting near the window, and threw it under the table
towards the entrance from the bar. I did not see anything more of the ballot-box
until Mr. Flewellyn, one of the inspectors, picked it up as they adjourned for supper.

Q. At the time you state he threw the box under the table, was there any confusion
or excitement going on ; if so, what was it I A. I did not notice any.

Q. At the time the ballot-box was thrown under the table, was there any debate
going on relative to an adjournment for supper? A. There was none at that time.
After the tally-sheet was prepared there was some discussion as to whether they
would proceed to count or go to supper, and they adjourned for supper.

Q. Who took part in the discussion, as near as you can recollect ? A. Nobody, to. my
recollection, but the inspectors. We did not see the ballot-box. Some of them said
they were hungry, and would not get home before midnight, and so they adjourned.

Q. You state that shortly after the polls closed the ballot-box was thrown under
the table. Was that before or after they proceeded to make the tally-sheet, and how
long before they adjourned for supper ? A. It was thrown under the table about the
time they commenced to make the tally-sheet, and I did not see it again for about half
an hour, when they adjourned for supper.

Q. Please state who were in the room during the election. A. I saw Mr. Flewellyn,
S. D. Reid, Samuel Tucker, Virgil George, Edward Sammons, and John Bevill. There
may have been others in the room. The time I noticed these particularly was when
I was refused admission.

Q. What time of day did the polls close ? A. About sunset.

Q. Do you know how many were in the room when the polls closed, and who they
were ? A. J. E. Flewellyn, S. D. Reid, S. C. Tucker, Virgil George, John Seville, and
Edward Sammons.

Q. Who was Edward Sammons ? Was he a Democrat or a Republican, a white man
or a colored man ? A. He is a colored man. He acted as Republican United States
supervisor, and is a Republican.

Jack Trapp swears :

Q. Were you there at the close of the polls ? A. I was.

Q. What was done ; did they proceed to canvass the votes at the close of the polls T
A. Yes ; they pretended to proceed, but they did not. They said they were going
to supper, but they did not go right away. Flewellyn, one of the inspectors, ordered
the window to be pulled to. They staid there and talked about twenty-five minutes,
and I pulled the window open again, and then Flewellyn took the box, saying he was
afraid that some one would take the box and run off with it, and threw it under the
table. I told him they were not apt to do it ; and then they closed the window and
went to supper. I went with the inspectors. They carried the box with them, I
disremember which one had the box ; and I did not see the box any more after Hiey
carried it in the house.

Q. In what capacity did you act on the day of election at Arredonda f A. I was
United States deputy marshal.

Q. By whom were you appointed? A. The marshal of the United States court.

Q. What did you say was done with the ballot-box when the polls were closed T
A. They put it under the table. I was standing outside *at the window.

Q. When did the polls close ? A. About sundown.

Q. Did you or not see any one tamper with the ballot-box in any way at any time ?
A. No, sir ; I did not.

Q. Are you a Republican or Democrat, and what was your politics at the time of
the election? A. J am a Republican, and was then.

Edward Sammons swears :

Q. What official capacity, if any, did you occupy at the election at Arredonda held
on the 2d day of November last ? A. I was United States supervisor at that election.

Q. Were you present when the polls were opened ? A. I was.

Q. Were you present when the polls were closed ? A. I was.

Q. Where were you when the polls were closed? A. Inside of the polling-room.

Q. Did the inspectors immediately proceed to count the votes when they announced
the polls closed ? A. They did not.

Q. Tell what was done and what took place at the close of the polls inside of the
polling room. A. Mr. Flewellen said, " We announce now that it is 6 o'clock and the

BISBEE, JR., VS. FINLEY. 211

polls are closed." After that there were no more votes taken, and we stopped some
considerable time in the room. I do not know how long.

Q. Where was the box all this time after the polls were announced closed ? A. Mr.

Flewellyu was standing with his hand on it.

Q. Was the box at any time removed from the public view while in the room ? A.
It was.

Q. State when and how long. A. During the time he had his hand on the box the
question arose : He said, " Boys, it may take us all night to count these votes, and as
I have supper prepared for six we had better get it." Then he said, ' ' We need a tal-
lyman ; we had better fix that up before supper." Then arose an argument between him
and me about it ; and I asked him who would that be. He said that was left to me
that he was looking out for himself, and I must look out for myself. At that time
Sam Reid touched me and I started out in the little anteroom, and I heard a rumbling
behind me and I noticed back to see what it was, and it was the box falling under the
table, and I stood in sight and talked to Mr. Reid perhaps about a quarter of an hour
before it was picked up from the floor and put on the table. At tha.t time Mr. Reid
and myself had decided to let Walls come in and keep tally. Flewellyn objected to it
and picked up the box and walked out, and when he got outside of the door he gave it
to Virgil George ; and Virgil, and Flewellen, and SamReid, myself, Sam Tucker, John
Bevill, and Dr. Carew, and Jack Trapp marched out for Mrs. Burk's boarding-house.
I went with them to within about fifty yards of her door ; myself and Sam Reid
stopped and we talked there perhaps ten minutes; the others went on with the box.
After that myself and him went to the boarding-house. Jack Trapp was standing on
the piazza outside of the door and Mr. Reid told him that he did not regard his badge ;
that he did not belong there and had better get away. I had an invitation in with
them to supper, and as I passed in through the door to the supper-room, on the right
of me as I passed in, I saw Virgil George sitting by the side of the door with the box
in his lap, and the other inspectors were in there with him. I went on by the door
about thirty feet further and on the left I went into a room, and had been there about
ten minutes and Virgil George came to the room where I was and left the box behind
him. In about ten or fifteen minutes afterwards Mr. Flewellyn came to the room
where Virgil and I was and brought the box with him. He says, " Hurrah, boys, we
must get back."

Q. You said in your direct examination that after the polls were closed the ballot-
box was for a time concealed from the public view. Will you state when, how long,
and how that was ? A. During the time what I called concealed it was from them
outdoors, but not from those in the house. It was about fifteen minutes, more or
less. I had no watch.

For contestee :
J. E. Flewellen swears :

Q. What was done with the ballot-box when the polls were closed, and afterwards,
until the votes were canvassed ? A. At sundown I closed the polls, after having given
fifteen minutes beforehand. The ballot-box remained on a goods box, which served
as a table, with the open side down, until dark ; then I took it up in my arms, while
we had two lighted can dies in the room, and gave it to the Republican inspector, and
closed the window of the room that we were then in, and the inspectors together went
out of the door and went a distance of about a hundred yards to supper at a board-
ing-house, the said inspector retaining the ballot-box. While the Democratic in-
spectors were at supper the Republican inspector was seated in the same room with
the box. After the Democratic inspectors got through eating I went with Republi-
can inspector to another room, where his supper was served ; then he gave me the
ballot-box, and I held it immediately in his presence until he got through eating ;
then I gave the ballot-box back to him, and Mr. S. D. Reid, the other inspector, joined
us, and we went back to the room where the election was held, and in the adjoining
room, with the door wide open, and four candles burning, I announced that we would
then commence the canvassing of the votes, which we did.

Q. State whether or not the ballot-box, from the time the polls were closed up to
the time the inspectors went to supper and carried it, was exposed to the public view.
A. It was.

Q. Were there others in the room during this time under the inspectors, and were
any of them Republicans ? A. There were two supervisors, one a Republican, the
other a Democrat, and the clerk, in the room during the entire time.

Q. Was the ballot-box at any time, from the closing of the polls to the time it was
taken by the Republican inspector, Virgil George, put or thrown under a table f A.
It was not ; there was not a table in the room.

Q. Was there not a little table occupied by the clerk T A. there was a small candle-
stand ; not much larger than the paper on which this testimony is written.

Q. Was there any attempt made by you, or any of the inspectors, at any timeupto

212 DIGEST OF. 'ELECTION CASES.

the closing of the canvass and the ascertainment of the result of saitl election, to con-
ceal or tamper with said ballot-box ? A. There was not.

Q. State whether or not, so far as you were concerned, an d so far as your observation,
extended to the other officers of the election, there was an earnest and honest effort
to comply with the election laws at said election at Arredonda. A. We tried in every
respect to go by the election laws. We had them with us, and complied with them,
as well as we knew how.

Sam D. Reid swears :

Q. Were you present at the closing of the polls on the day of election at Arre-
donda T A. I was.

Q. What disposition was made of the ballot-box ? A. It was in the custody of the
inspectors, and in full view of the voters.

Q. What was the size of the room where the election was held? A. I suppose it to-
be eight by ten, and may be ten by twelve.

Q. State whether for not you saw the inspector Flewellen throw the ballot-box at
any time under the table. A. I did not. There was not a table large enough for the
box to have gone under in the room. The only table in the room was a small toilet
table, the construction of the legs of which was such as that a box could not have
been put under it.

Q. State whether or not there was any distinction made in the admission of Demo-
cratic and Republican representatives inside the polling place. A. There was no dis-
tinction.

Q. State whether or not the election held at Arredonda as aforesaid was a fair and a
peaceable one, or was it otherwise. A. It was fair, impartial, and peaceable, and iu
conformity with the election laws.

Virgil George swears :

Q. Were you present when the polls were closed? A. I was.

Q. Did you see any of the inspectors, at any time, put the ballot-box under a table
or in any other concealed place ? A. No ; I did not.

Q. Did you not see Inspector Flewellen put the ballot-box under a table ? A. No,
Bir. Upon my word and honor I did not.

Q. Was there any table in the polling-room ? A. There was a very small table iri
-the room.

Q. What became of the ballot-box after the polls were closed ? A. After the polls
were closed we consulted whether we would go to supper, and, after having con-
cluded to go to supper, we then considered what we would do with the box. It was
determined that we all would go together to the supper-house, about seventy-five
yards off, and that one of the inspectors take the ballot-box and another the key.
They gave me the box and Mr. Flewellen the key, and we all went together to sup-
per.

Samuel C. Tucker swears :

Q. Were you present at the closing of the polls at Arredonda at the election held
there on the id day of November last ? A. I was.

Q. Can you state whether or not the ballot-box was put under a table by any of the
inspectors, or in any concealed place, by them or any one else ? A. It was not, that
I saw. We had no table while there in the room when the ballots were received ex-
cept a little toilet table, on which I did my writing. The ballot-box was set on a
large goods box.

Q. What disposition was made of the ballot-box after the polls were closed ? A.
It remained on that box until j tist before we went to supper. Mr. Flewellen took the
ballot-box from off this box, the wind blowing strongly at the time in the window
where the box was sitting, and held it in front of the inspectors. This was done as a
precautionary measure, for fear that the lights might be blown out by the wind and
some one might snatch the ballot-box.

This testimony leaves it in very great doubt whether the ballot-box
was on the floor at all. It clearly shows that it was not purposely
thrown there. It still more clearly shows that it was at all times in the
presence of friends of both parties. Elewellen. Reid, and Tucker, who
were present in the room with the ballot-box, were Democrats ; George,
Seville, and Saminons were Republicans, and there is no scintilla of
proof that there was any tampering with the box or any fraud com-
mitted.

Walls, who was outside of the house and could not see what was go-
ing on in the room, says that

BISBEE, JR., VS. FINLEY. 213

Flewellett took tie ballot-box from tile table where it was sitting near the window
and threw it under the table towards the entrance from the bar.

SaminoHs, on p. 194 of the Record, says :

At that time Sam Reid touched me, and I started out in the little ante-room, and I
heard a rumbling behind me, and I noticed back to see what it was, and it was the
box falling under the table, and I stood in sight and talked to Mr. Reid perhaps about
a quarter of an hour before it was picked up from the floor and put on the table.

This witness Sammons testifies, on page 195 of the Record, a,s fol-
lows:

Q. Were you a Republican and a supervisor at Arredonda at the last election f A,
I was.

Q. What did y"ou regard to be your duty as such supervisor ? A. It was to look out
for all frauds that might happen against the Republican party that day.

Regarding it to be his duty, as he swears, " to look out for all frauds
that might happen against the Republican party," and standing in sight
of the ballot-box from the time it is alleged to have been thrown under
the table, watching it, as he evidently was, can any impartial mind,
seeking after truth, come to a conclusion from this evidence that it was
possible that this ballot-box could have been tampered with while it was
under that table, if it was ever thrown under a table 1 It was entirely
impossible, as is shown by the contestant's own testimony.

From the following testimony of the Republican supervisor, Sam-
mons, it will be seen that the ballot-box was never concealed from those
in the house (see Rec., 195) :

Q. You said in your direct examination that after the polls were closed the ballot-
box was fer a time concealed from the public view. Will you state when, how long,
and how that was ? A. During the time what I called concealed it was from them
outdoors, but not from those in the house. It was about fifteen minutes, more or
less. I had no watch.

Who were in the room from whom, Sammons says, the box was
never concealed ? Contestant's witness, Walls, on p. 189 of the Record,
answers this question as follows :

Q. Please state who were in the room during the election. A. I saw Mr. Flewellyn,
S. D. Reid, Samuel Tucker, Virgfl George, Edward Sammons, and John Bevill. There
may have been others in the room. The time I noticed these particularly was when
I was refused admission.

Q. What time of day did the polls close? A. About sunset.

Q. Do you know how many were in the room when the polls closed, and who they
were ? A. J. R. Flewellyn, S. D. Reid, S. C. Tucker, Virgil George, John Bevill, and
Edward Sammons.

In this little room, of the dimensions of 10 by 12 feet, with all these
persons in sight of the ballot-box, and when Sammons, Mr. Bisbee's
ic arm supporter ', was watching out for frauds against the Republican
party, as he testifies, to conclude that the ballot-box was tampered with,
or could be tampered with, cannot be done, we submit, with any regard
for law or evidence.

6 and 7. Was the ballot-box in the possession of the same person who
had the key during the adjournment, and was there any fraud or ille-
gality committed during the adjournment ?

The testimony on these points is as follows, viz :
For contestant :

J. T. Walls swears : .

Q. You stated you wore there all day. Were you there when the polls closed? If
you wore, state- what took place, if anything. A. I was there when the polls closed.
They did not proceed to count the votes when they announced the polls closed. They
-were about one-half hour preparing a tally-sheet, after which they adjourned to sup-

214 DIGEST OF ELECTION CASES.

per. They were gone about three-quarters of an hour to a house kept as a boarding-
house.

Edward Sammons swears :

Q. You say that Virgil George took the ballot-box at the door and all the inspectors
and yourself and the other supervisors and officers of the election went to Mrs.
Bnrk's to get supper, do you?- A. Yes; and we all went to Mrs. Burk's to get our
supper.

Q. How far is Mrs. Burk's from the polling place ? A. I presume about three hun-
dred yards.

Q. You said in your direct examination that when you came into the house you saw
in a room on your right the inspector, Virgil George, sitting with the box in his lap
and the other inspectors around him. Were there any other persons in the room be-
sides the inspectors, and was the room lighted up or not ? A. There was other persons
in the room, and it was lighted up.

Q. How long was it from the time you all left the polling place to go to supper be-
fore you returned to the polling place ? A. I had no watch ; about a half ou three-
quarters of an hour, I think.

Q. Were you inside of the polling place all day ? A. All day, except when I went
out to urinate.

For contestee :
J. E. Flewellen swears :

Q. Was the ballot-box whilst at the supper-house at any time kept in a secreted
condition? A. It was not.

Q. Was it kept while at the supper-house and while at the polling place in a
lighted or dark room in a lighted or dark! A. The ballot-box at all times was in a
lighted room and open to the public.

Samuel D. Eeid swears :

Q. At the time of taking the ballot-box from the polling place to the supper-
room, was any protest made or objections raised by the Republicans, or any of them,
to such removal? A. No objections were made to me, and if made to others I did
not hear it.

Q. Did the Republicans, or any of them, insist on following the box into the supper-
room to see that it was not tampered with, and were they not prohibited or refused
admission into the room, and was not this refusal the cause of Trapp's using the lan-

fuage you characterize as obscene ? A. There was no one refused admission that I
now of. On the contrary, I told them that they could go to the doors and windows
and look at it all the time. A number of the voters .did follow the box from the poll-
ing place to the supper-room.

Q. Of this number, were they mostly Democrats or Republicans, and were they
or any portion of them admitted into the supper-room? A. They came to the doors
and windows. I did not invite them in. There was no guard to keep them out and
no hinderance that I knew of.

Virgil George swears:

Q. What was done with the ballot-box while you were at supper? A. I held the
box while the two other inspectors were eating, in their presence. After they were
through eating, I gave Mr. Flewellen the box, and he then held it in the presence of
myself, Edward Sammons, and Mr. Reid.

Q. Were there not other Republicans who followed the inspectors from the polling
place to the eating-house where they carried the box with them to supper? A. Yes,
sir; I did not count them, but it looked like there were seventy or eighty.

Q. Was the hotel or boarding-house where you kept the box lighted up or in the
dark? A. The house was kept lighted all the time.

Samuel C. Tucker swears :

We decided to go to supper; that is, the inspectors and the United States supervis-
ors, Edward Sammons and Jno. G. Bird. Mr. Flewellen then handed the ballot-box
to Virgil George, the Republican inspector, and then we proceeded to Mrs. Burk's to
get our supper, all together, the inspectors and supervisors, and we walked over to
Mrs. Burk's in the following order, as well as I can recollect : Virgil George, the bearer
of the box, walked between Flewellen* one of the inspectors, and Edward Sammons, .
the Republican United States supervisor, and I walked behind them to the supper-
table.

Q. Were you present with any of the inspectors at supper? A. I was, until I got
through eating.

BISBEE, JR., VS. FINLEY. 215

Q. Where was the ballot-box? A. While myself and Mr. Flewellen, and I think
Mr. Reid, were eating, the ballot-box was in the custody of Virgil George, in our
presence, while we were eating, and, to the best of my recollection, Edward gammons,
the Republican United States supervisor, was sitting by the side of Virgil George
the bearer of the box. I then left the supper-house, leaving the parties in the same
position as above stated.

Q. What was the character of the election held at Arredouda on that day? A. It
-was of a most quiet and peaceable character.

The law of Florida provides that "as soon as the polls of an election
shall be finally closed the inspector shall proceed to canvass the votes
at such election, and the canvass shall be public and continued without
adjournment until completed." (Pamphlet laws of 1877, sec. 21.)

It was illegal therefore for the election board to adjourn before com-
pleting the canvass of the votes. But unless the adjournment is shown
to have afforded the facilities for fraud, or that during it the box was
concealed and tampered with, there is no reason why the adjournment
should operate to taint or discredit the poll. There is no witness pre-
tends that any fraud was committed during the adjournment. The box
was taken by the officers of the election from the polls to the boarding-
house with a large crowd following as witnesses. It was kept in the
custody of. one of the officers of the election, watched by one or more of
the other officers all the time in a public, open, well-lighted room. The
testimony of Mr. Sanimons and Mr. George is conclusive on the point
that there was no fraud or opportunity for fraud.

But it is contended by contestant that the great falling off in his vote
as returned at this poll is evidence of fraud. In answer to this point
the contestee cites the proof to show that there was a bitter division
in the Republican ranks in the precinct, which satisfactorily accounts
for the smallness of Mr. Bisbee's vote.

J. T. Walls, contestant's witness, swears:

Q. Do you know whether or not there were two divisions of the Republican party,
lieaded by separate tickets, for the legislature in Alachua County during the last cam-
paign? A. There were.

Q. Were you or not a candidate for the State senate on one of those tickets, and
the leader of one of those factions ? A. I was a candidate for the senate on one of
those tickets, and was the leader of one of those factions.

Q. Do you know the Hon. L. G. Dennis ? A. I do.

Q. Was he or not a candidate of one of these Republican factions above spoken of
for the legislature ? A. He was a candidate on what was known as the Rush ticket
for the assembly. Rush was a Republican candidate, and was one of my opponents
for the senate, and the other was Mr. J. B. Dell, Democratic candidate.

Q. Was or not the Hon. L. G. Dennis an opposer or supporter of Mr. Bisbee for Con-
gress ? A. I suppose he was an opposer, from his speeches made during the campaign,
and that was the issue between the two factions, his opposition to Colonel Bisbee.

Q. Do you not know that he denounced Bisbee from the stump during the political
campaign in the county ? A. I heard him on several occasions denounce Colonel Bis-
bee, and have been informed that at other times he spoke in favor of Colonel Bisbee.
As to his denouncing him throughout the country, I am unable to say, because I do
not know.

Q. Did you not hear or understand that there was during the campaign some en-
deavor made towards a reconciliation between Bisbee and the Dennis faction ? A.
The only information I have on that subject is a letter that Dennis read at a public
meeting' from Colonel Bisbee, which letter requested Dennis not to speak at that
meeting ; and, if he did, not to bring up local matters, but he would like to hear from
liiui on State and national questions.

Q. Did or not Dennis continue the fight until the election was over; or did he, yield-
ing to Colonel Bisbee's request, then cease to oppose him after the reading of that
letter? A. The fight was continued until the election was over. The night before
the election in the town of Gainesville, as I am informed, and it was generally known
that he, at a public meeting, openly denounced Bisbee and stated that he had not
supported Bisbee, and advised his friends not to do so.

Q. Do you believe that L. G. Dennis, and do you not know that L. G. Dennis, or
any one else, could not make that an issue in this county at the polls successfully in

216 DIGEST OF 'ELECTION CASES.

the last campaign? A. I believe and know that L. G. Dennis and others opposed
Colonel Bisbee from the beginning of the canvass until the day of election, but to
what extent and influence I do not know.

Q. Did yon or not see any Republican tickets at Arredonda on the day of election
that did not have Bisbee's name on them as candidate for Congress ? A. I did see
some such tickets with Bisbee's name not on them.

W. F. Rice, contestee's witness, swears :

Q. Do you or not know that in the political campaign that preceded the last elec-
tion in said county of Alachua the Republican party of said county was divided into
factions, and that those factions were very much imbittered against each other ? A.
It was divided into factions, and there was considerable bitterness against each other.

Q. Was it or not generally known that the Hon. L. G. Dennis was the leader of one
of those factions, and J. T. Walls the leader of the other? A> It was.

Q. Do you or not know, and was it not a matter of public notoriety in the county,
that Dennis was an opposer of Mr. Bisbee for Congress, and that J. F. Walls was his
supporter ? A. It was.

J. E. Flewellen, contestee's witness, swears :

Q. Were you in Alachua County during the political campaign which preceded said
election ? A. I was only here a week preceding the election.

Q. Do you know whether or not the Republican party in said county of Alachua
was divided into factions ? A. They were.

Q. State whether or not the leaders of these respective factions were acrimonious
and bitter towards each other. A. They were very bitter.

Q. How do you know ? A. I heard them abusing each other, and at Republican
meeting, held in the yard of the United States land office, in Gainesville, on Saturday
before the election, the Walls faction of the Republican party spoke very abusively
indeed of the Dennis faction of the Republican party. Nearly all of the entire
speeches made by the Walls factien were abuses of the Dennis faction. Immediately
on the .close of their speaking Mr. Dennis rose to go on the platform, and the Walls
faction tore it down to keep him from speaking. Also tore down the tables ou which
the crowd had dined. Mr. Dennis got on a large box, which the Walls faction pulled
out from under him. Mr. Dennis had to retire without speaking.

Q. Do you know whether Mr. Bisbee spoke there on that day ? A. I do not know.

Q. Please state whether or not you heard the Republican supervisor, Edward Sum-
mons, and- the Republican inspector, Virgil George, make any statement on the day of
the election in reference to its probable result, and the cause of such result. A.
About two o'clock each of them told me that they were* satisfied that the Democrats
had carried the election here, because the colored men had deceived them, and were
voting the Democratic ticket. Ed. Sammons remarked that he was perfectly dis-
heartened and ready to give it up. They repeatedly repeated this from that time
until the polls closed. ,

Q. Was there any additional cause of the probable defeat of the Republican party
at said polls assigned by them, or either of them, by attributing their defeat to any
individual; and, if so, what? A. They attributed it to L. G. Dennis splitting the
Republican party in this county.

Q. Can you state whether or not the Democratic party were before and at the elec-
tion united and harmonious, or whether they were divided, as you say the Repub-
licans were ? A. They were united and harmonious.

Q. Do you know if Captain Dennis was a supporter or opposer of Colonel Bisbee ?
A. % I heard Mr. Dennis abuse Colonel Bisbee in very strong terras. He had printed,
and caused to be circulated, a fulj set of tickets with no one's name on it for Congress,
which some of said tickets were voted at the Arredonda precinct. . These tickets were
circulated all over the country, to my certain knowledge.

Q. Were these tickets above spoken of, which you say were blank for Congress,
Republican or Democratic tickets ? A. They were Republican tickets.

Q. How do you know that any of these tickets were voted at the Arredonda pre-
cinct ? A. I counted them out of the box when canvassing the vote, and saw them
to be such.

Q. Can you state whether there were a few or a great many of these tickets in cir-
culation at Arredouda, from your observation ? A. There were a great many.

Samuel D. Keed swears :

Q. Do you know L. G. Dennis ? A. I do.

Q. Can you state whether or not the Republican party of Alachua County, during
the last political campaign, when a member to Congress from this Congressional dis-
trict was to be elected, was divided into factious, or was it solid? A. It was divided,
into factions.

BISBEE, JR., VS. FINLEY. 217

Q. Who were the respective leaders of these factions? A. L. G. Dennis, a Repub-
lican, but anti-Bisbee man, was the leader of our faction, and J. T. Walls was the
leader of the Bisbee faction.

Q. Do you know whether or not there were a considerable number of Dennis tickets
in circulation, aud voted at Arredonda at said election ? A. There were a majority of
Republican tickets on which Bisbee's name did not appear; they were blank for Con-
gressmen. These were known as Dennis tickets.

Q. Please state how you know that many of the colored voters voted the Dennis or
blank ticket for Congress. How many, and, if possible, their names? A. I don't
know how many voted it, nor the names of those who voted it. I only know by see-
ing the ballots in the box when they were canvassed, and from the fact that the Den-
nis faction claimed the right to be admitted to the polling-place, and to keep a tally-
sheet.

Q. Do you know J. T. Walls? A. I do.

Q. Was he at Arredonda on the day of election ? A. He was.

Q. Did you see and converse with him on that day ? A. I had a conversation with
him that night after the polls were closed.

Q. Was that conversation in regard to the election at Arredonda on that day? A.
It was.

Q. What did he say abpnt that election ? A. I asked him if there had been any
irregularities in the election on that day. He said there had not that he knew of or
could object to (I forget what his language was), except that it might be considered
irregular for the inspectors to go to supper before they counted the vote.

Virgil George swears :

A. I heard Sammons state on the day of election, about 3 o'clock p. m., that he be-
lieved the Republican party was beat, for the reason, as he expressed it, that a great
many negroes were voting the Democratic ticket ; also that Dennis was stronger than
he thought for.

Q. Was said Supervisor Sammons a Republican or Democrat ? A. He wad a Repub-
lican.

Q. Was the Republican party united in the last campaign, or was it divided into
factious ? A. It was not united ; it was badly divided.

Q. Who were the leaders of those respective divisions or factions? A. Mr. Walls
was a leader of one part, and Mr. L. G. Dennis the other.

Q. Can you state whether or not these factions were very bitter against eac.li other
during the last campaign ? A. It seems that they were.

Q. Did you attend any Republican political meetings during the last campaign?
A. I did.

Q. Were there or not, within your knowledge, any Republican clubs in the county ?
A. Yes, sir ; there were.

Q. What were they called ? A. The Garfield Club.

Q. Did you belong to or attend any of them ? A. I did not.

Q. State whether or not, if you know, Mr. Dennis was a supporter or opposer of
Mr. Bisbee for Congress? How was he regarded ? A. I understood, but did not hear
him say so, that he was opposed to Mr. Bisbee.

Q. Did you or not, during election day at Arredonda, in the afternoon of that day,
hear the Republican supervisor, Edward Sammons, express any apprehension orfeara
that the Republican party would be beat? A. I did, sir.

Q. To what cause did he attribute it ? A. He said that he felt that we were getting
beat, and seemed very much disheartened, and spoke of the party being split up, and
assigned that as a cause.

Q. Were you present at the canvass of the vote at Arredonda? A. I was.

Q. State whether or not, if you recollect or observed, there were any Republican
tickets in the box which did not have Mr. Bisbee's name on them for Congress? A-
There were some there, but cannot say how many did not keep any count.

Samuel C. Tucker swears :

Q. Do you know whether or not the Republican party during the political campaign:
which terminated in the late Presidential and Congressional election, the Republican-
party in Alachua County, Florida, was united or divided ? A. They were materially
divided.

Q. State who were the respective leaders of the factions of the Republican party
of said county. A. They were denominated here as the Dennis and Walls factions.

Q. Do you know, or was it a matter of public notoriety during the late campaign,,
that Dennis was a supporter or opposer of Mr. Bisbee for Congress? A. He was not
a supporter of Bisbee, and it was generally believed that he exercised every effort in
his power to defeat him.

Q. Were there any tickets in that ballot-box at the time of the canvass which were
Republican tickets/that did not contain the name of Mr. Bisbee for Congress? A. I

218 DIGEST OF ELECTION CASES.

had no access to the box, and consequently had no opportunity of knowing, only as
the inspectors called them out, but I saw a good many tickets of that character dur-
ing the day distributed around.

Amos George, a colored voter, swears :

Q. Are you a registered voter of Alachua County, and were you such at the election
held in November last ? A. Yes, sir.

Q. What was the character of that election ; was it a peaceable and quiet election,
or was it otherwise? A. It was as quiet election as I ever saw.

Q. Do you know Edward Sammous ? A. I do.

Q. Did he act in any official capacity at the late election in November last ? A.
Not that I know of.

Q. Can you state whether or not there were a good many supporters of the Dennis
ticket at Arredonda at said election ? A. I do not know.

Q. Did you or not hear Edward Sammons say anything about said election ? State
what you heard him say. A. I heard him say after the election was over he went to
Gainesville, and the women wanted to jump on him and fight him for telling the ne-
groes to vote the Democratic ticket. He told them that he could not help it; that is
what I heard him say.

Q. Did he say anything further? A. Not as I know of.

Q. Are you a colored man or white man ? A. I am a colored man.

Q. Did you or not vote the Democratic or Eepublican ticket at the last election?
A. I aimed to vote the Democratic ticket.

Q. How long have you been a Democrat ? A. I have been a Democrat all my days.

This testimony shows that there were two candidates for the office of
State senator Mr. Walls and Mr. Dennis running in this district ;
that they headed very bitter and earnest and hostile factions of the Ee-
publican party; that the Walls faction favored Mr. Bisbee, but that the
Dennis faction was very much opposed to him; that the fight was
-carried down till the close of the election; that Mr. Dennis, at this
poll, received just the same number of votes which Mr. Bisbee fell
behind his ticket ; that Mr. Dennis's tickets did not have Mr. Bisbee's
name on.

Julius A. Carlisle swears that

Having counted the ballots, there were three hundred and thirty in the box.

Q. Please examine, ascertain, and state if there are any Republican tickets that are
"blank for member to Congress ; and, if so, state how many. A. Witness having ex-
amined states there are (85) eighty-five.

Q. Please examine, ascertain, and state the number of ballots in the box for Jesse
J. Fiuley for Congress. A. The witness having examined the ballots, states: "There
are one hundred and seventy-two votes for Jesse J. Finley for Congress."

Q. Please examine and state how many votes there are in said box for Horatio Bisbee,
jr., for Congress. A. The witness having examined the ballot-box statess : " There are
sixty-eight (68). There are also five Republican tickets with Horatio Bisbee, jr.'s,
.name scratched."

Q. Please examine and state the number of votes for the Republican elector^. A.
The witness having examined the ballots states : "There are one hundred and forty-
eight (148) ballots for the Republican electors and two Republican tickets with the
Hep ublicau electors scratched."

Q. Please examine and state the number of votes or ballots for the Democratic
electors. A. Witness having examined the ballots states: "There are one hundred
and seventy-two (172) ballots for the Democratic electors."

Q. Please examine and state the number of ballots in the box for the Democratic
candidate for governor. A. Witness having examined the ballots states : "There are
one hundred and seventy-two votes for the Democratic candidate for governor."

Q. How many votes do you find for the Republican candidate for governor ! A.
Witness having examined the ballots states : "There are one hundred and forty (140)
votes for the Republican candidate for governor, and 17 scratched, and one with the
name of the candidate for governor torn off.."

Q. Please examine the eighty-five Republican tickets which you say are blank for
Congress, and state whether Leonard G. Dennis' name appears on them, or any of
them ; and, if so, how many ? A. Witness having examined those ballots states :
" They all have the name of Leonard G. Dennis on them."

Q. For what office? A. For a member of the assembly.

BISBEE, JR., VS. FINLEY. 219

The evidence, on pages 398-399, shows 330 ballots in the box. The
votes for governor shows

For Bloxham, Democrat _ 172

For Conover, Republican [ 149

Scratched 17

One with name torn off

/ 330

Making the vote for governor equal to the number of ballots in the box.
Again, on the Congressional ticket, the evidence shows

For Finley 172

For Bisbee fig

Blank (Dennis's vote) 35

Scratched 5

330

In response to this testimony the contestant has called and sworn 260
persons who say they voted for him at this poll. But this is contra-
dicted, first, by the fact that Mr. Dubose, the president of the Repub-
lican club at the place, swears there were only 164 members of that
organization, which is about the number of votes polled by the Repub-
licans ; second, by the fact that only 140 voted for the Republican can-
didate for governor ; third, by the fact that the proof proves too much.
If 260 voted for Mr. Bisbee, which is the full vote for Congress, what
becomes of the large vote concededly cast for Mr. Finley ? But there
is a grave objection to the testimony of voters to show the true state of
a poll in such a case as this, and surrounded by such circumstances.
The voters were mostly illiterate and could not read their tickets, and
the Dennis Republican ticket did not have Mr. Bisbee's name on it.
How could they say any more than that they voted the Republican
ticket ? Besides, not only are political leaders liable to conceal their
cutting a party ticket, but ignorant voters, who would incur the odium
of their neighbors for admitting a deviation from the party paths, are
also likely to deny the fact, and particularly when they have the addi-
tional shield for their consciences that they may not and perhaps can-
not know certainly how they voted. Besides, if it is true that the full
Republican vote was cast for Mr. Bisbee at Arredonda, and that Mr.
Dennis did not cut him to the full extent of his power, why is not Mr.
Dennis, a prominent Republican, called ? If Mr. Bisbee really believed
that Mr. Dennis and his faction did not cut him, the clear, well-defined,
and intelligent course would have been to call and swear him. Then
what we now see through a glass very darkly we could have seen face
to face. But Mr. Bisbee did not call this prominent Republican, Mr.
Dennis the little giant of Alachua and I believe he had a good rea-
son for the omission I believe the preponderance of the evidence shows
that the election at Arredonda was a fair and just expression of the
voters as they actually cast their ballots. It is utterly immaterial to
this contention whether they intended to vote otherwise than they did.
If Mr. Dennis got his work in by voting tickets without Mr. Bisbee's
name on, we cannot allow the persons who cast them to vote over. In
the case of Biddle & Richard vs. Wing, Nineteenth Congress, which
was one of the best-considered cases ever decided by the House of Rep-
resentatives, the committee very appropriately say on this point : " The
committee are of opinion that the duty assigned to them does not im-
pose on them an examination of the causes which may have prevented
any candidate from getting a sufficient number of votes to elect him to

220 DIGEST OF ELECTION CASES.

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 elec-
tion."

But suppose we admit, for the purposes of the further discussion of
this point, that there are some evidences of irregularity and illegal and
improper conduct on the part of the officers of the election at Arredon-
da, we must then inquire what is the amount of irregularity, and what
is the character of the improper conduct on the part of said officers re-
quired by the law to vitiate and set aside the return, and permit alinnde
proof of the votes cast ?

The law on this subject is very fully and clearly laid down by Mr.
McCrary in his work on Elections, sec. 302, wherein he states that mere
irregularity does npt vitiate the return, but only where the provisions
of the election law have been entirely disregarded by the officers, and
their conduct has been such as to render their returns utterly unworthy
of credit, the entire poll must be rejected. In such case the return
proves nothing, but the legal votes cast at such poll may be proven by
secondary evidence; but he states very clearly that the return, until so
impeached, is the primary evidence. In support of the doctrine of this
section (302) he cites 1 Chicago Leg. News, 230 ; Brightley's Election
Cases, 493; McKenzie vs. Braxton, Forty-second Congress, and Gid-
dings vs. Clark, ibid.

In section 303 of the same book it is said : " The power to reject an
entire poll is certainly a dangerous power, and should be exercised only
in an extreme case that is to say, where it is impossible to ascertain
with reasonable certainty the true vote. It must appear that the con-
duct of the election officers has been such as to destroy the integrity of
their returns and to avoid the prima facie character which they ought
to bear as evidence before they can be set aside and other proof de-
manded of the true state of the vote." In support of this doctrine
three cases are cited from 1 Brewster, viz, Mann vs. Cassiday, Thomp-
son vs. Ewing, and Weaver vs. Givin, and the case of Gibbons vs. Stew-
art, from 2 Brewster.

In section 304 of McCrary, the language of the supreme court of
Pennsylvania, in Chadwick vs. Melvin, is quoted, which declares " that
there is nothing which will justify the striking out' of an entire divis-
ion but) an inability to decipher the returns, or a showing that not a
legal vote was polled, or that no election was legally held." The case
of Kiddle and Richard vs. Wing, supra, is also cited as giving the correct
doctrine, which holds: "Indeed nothing short of the impossibility of
ascertaining for whom the majority of votes were given ought to vacate
an election." (See also McCrary, 436, 437, 438.) Under the law, as laid
down in these citations, does the evidence justify the rejection of this
poll I Have all the provisions of the election law been entirely disre-
garded by the election officers; and are the returns utterly unworthy
of credit? Is it impossible to ascertain with reasonable certainty what
the true vote is,' and is it necessary to exercise the dangerous power of
rejecting the poll, which the law says should only be done in extreme
cases! We think not. But in addition to the provisions of the law,
which declare what kind and amount of proof of fraud and illegality
are required to reject a poll, the contestee very properly refers also to
those presumptions which the law always throws around sworn officers,,
and those equally important presumptions of law, which are always in
favor of innocence and right and against fraud and wrong. It is a well-
settled and fundamental principle of law that in all cases and at all
times, all presumptions are against fraud and in favor of fairness.

BISBEE, JR., VS. FINLEY. 221

Fraud is never presumed, even froui suspicious circumstances. When
charged it must be proved. It is unnecessary to cite authorities in sup-
port of this. What is done by sworn officers in the pursuit and dis-
charge of their duties is always presumed to be rightly done, and noth-
ing but clear and convincing and unequivocal proof can destroy the
credit and validity of their official acts. (See McCrary, section 87 &c
see also Skerrett's case, Brightley's Leading Cases on Elections, page
820 and page 333, where the court holds this language: "What has
been done by the sworn agents of the law is always to be presumed
rightly done; and those who seek to impeach the acts of these func-
tionaries must not expect to be entertained if, instead of bringing posi-
tive, tangible, and direct charges, they content themselves with gen-
eral, argumentative, and theoretic imputations.")

THE NEWNANSVILLE POLL.

This poll is assailed on the charge of fraud, and contestant asks that
the return be rejected as evidence, and that no votes shall be counted
for either party except such as have been proven by testimony aliunde
the return.

The return gave Mr. Bisbee 150 votes and Mr. Finley 146 votes. What
is the fraud charged against the return upon which it is asked to re-
ject it ?

First. That 29 more votes were found in the ballot box' than there
were names on the poll-list.

Second. That one witness swears that " we found ttco tickets folded
together ; we cannot tell whether they were so when they were put in
or not."

^* Third. That in drawing- out the excess of tickets in the box in con-
formity to law there may have been more Republican votes extracted
than Democratic.

To show on what a frail foundation the contestant proposes to base
his case in this instance, we will reproduce the whole testimony of his
own witness, Edward Taylor, who was the Eepublican manager at this
poll.

EDWARD TAYLOR, a witness produced and sworn, testified as fol-
lows:

Question. What is your name, place of residence, and color f Answer. My name is
Edward Taylor ; I live in district No. 3 ; I am a colored man.

Q. Are you a registered voter of Alachua County, Florida ? A. Yes.

Q. Did you vote at the election held on the 2d of November last; if so, whatticket
did 'you vote, Democratic or Republican, and where did you vote ? A. I voted at
Newnausville ; I voted the Republican ticket.

Q. Did you vote for member of Congress for the second Congressional district of
Florida at the last election, and for whom did you vote ? A. I did ; I voted for Hora-
tio Bisbee.

Q. Did you hold any official position at that election ; if so, what was it T A. Yes ;
I was one of the managers of the box at Newnansville.

Q. Were you, or not, present all day at that election when the votes were polled?
A. I was present all day, during the voting, and the counting of the votes after the
polls were closed.

Q. Do you, or not, know of any ballots being taken out of the ballot-box T If so,
state fully all you know about it. A. We first proceeded to count the votes one by
one. Mr. Hodge, one of the inspectors, counted the votes first ; then I counted them.
Mr. Hodge counted one hundred and fifty and I counted one hundred and seventy -one.
Then we put them in the ballot-box and stirred them up ; we went and tore up and
destroyed all the ballots more than there were names on the tally-list ; there were
twenty -nine more tickets in the box than there were names on the tally-list.

Q. How did it happen that there were twenty-nine ballots more in the ballot-box
than there were names on the tally -list ? A. We cannot exactly account for it ; we

222 DIGEST OF ELECTION CASES.

found two tickets folded together ; we cannot tell whether they were so when they
were put in or not.

Q. When these twenty-nine ballots were taken out of the box were they folded up,
or were they open ? A. Twenty -one of them were folded ; eight were opened.

Q. Do you know, of your own knowledge, whether these tickets that were destroyed
were Democratic tickets or Republican tickets ? State fully. A. There were some
of each.

Q. How many Democratic tickets were there, and how many Republican tickets
were there taken out and destroyed? A. I can't tell how many of each there were
taken out ; I know there were some each.

Q. Wh~o took these twenty -nine tickets out of the box and destroyed them? A.
Geiger took out twenty-one and I took out eight.

Q. When these twenty-nine tickets were taken out of the box were they folded, or
could it be plainly seen what they were, Democratic or Republican ? A. When we
drawed the twenty-one they were folded ; when we drawed the eight they were un-
folded.

Q. Do you know whether the eight tickets you took out of "the box were Democratic
or Republican ? A. There were some of each.

Q. How many of each ? State if you know. A. The twenty-one tickets were torn
up ; the eight were burned. I took them up to light my pipe with, and I saw the
face of them, and five of the eight were Republican tickets and three of them were
Democratic.

Q. Did you see the two tickets that were folded together, so as to tell what they
were, Democratic or Republican ? A. Yes, I saw them ; they were Democratic tick-
ets.

Q. Did the Republicans of this district hare an organization or club during the
campaign last fall ? A. Yes ; I don't know how mauy belonged to it.

Q. Is it not true that the election held on the2d day of November, at Newnansville,
was conducted fairly and legally, and without any fraud whatever? A. Yes, sir ; aa
far as the managers were concerned.

Q. State whether or not, when the votes were counted, the managers canvassed
them with the utmost fairness without regard to political character, and in the de-
struction of the overplus ballots cast they were drawn from the box by and with the
consent of each inspector without any knowledge as to whether they were Democratic
or Republican ballots, and whether or not the destruction of said ballots was done for
the purpose only of making the tally-sheet of voters correspond to and with the num-
ber of ballots cast ? A. They were.

Q. State whether or not any legal voters were rejected from the polls. On the con-
trary, was not every voter at said precinct who was legally authorized to do so per-
mitted to cast his ballot quietly and peaceably ? A. They were.

Q. State whether or not the election at said precinct on said day was quiet, peace-
able, and orderly. A. It was.

Valentine, a deputy marshal, one of contestant's witnesses, who was
a political friend and supporter of contestant, swears, on p. 26 of the
Kecord :

Well, the votes were counted out, and then there was more votes in the ballot-box
than there was names to balance with ; then the votes was all put back into the
ballot-box, and shaken together, and then they put their hand into the box and took
out, I think, twenty -nine votes to make the number even on the list. I thought they
tried to do it fair.

This witness further testifies that there were several counts of the
votes and several drawings from the ballot-box to make the number of
ballots in the box correspond with the number of names on the poll-list,
as the law requires. He further testifies, on same page, 26 of Kecord :

I do not know whether they (the ballots in excess) were Democratic or Republican ;
they were not looked at. As far as I could see, everything went right, excepting one
man was objected voting, but they let him vote ; that was all I see.

In connection with this testimony we cite the law of Florida applica-
ble to the subject, which provides :

As soon as the polls of an election shall be finally closed, the inspectors shall pro-
ceed to canvass the votes cast at said election, and the canvass shall be public and
continued without adjournment until completed.

The votes shall be first counted ; if the number of ballots shall exceed the number
of persons who shall have voted, as may appear by the clerk's list, the ballots shall be

BISBEE, JR., VS. FINLEY. 223

replaced in the box, and one of the inspectors shall publicly draw out and destroy
unopened, so many of such ballots as shall be equal to such excess.

The testimony of the contestant himself shows that the excess of bal-
lots in the box were drawn out under the supervision and with the con-
sent of both inspectors, and strictly in accordance with the law which
instead of implying fraud from such an excess, attributes it, in conform-
ity to the spirit of common sense and fairness, to the mistakes of the
clerks or electors. It is shown that the election was conducted fairly
and legally, and without any fraud on the part of the officers of election j
that the votes were fairly and honestly canvassed and counted ; that
every legal voter was permitted to vote; that the election was quiet,
peaceable, and orderly. We have no hesitation in saying that the claim
of the contestant to throw out the whole vote of the contestee at this
poll and count the whole vote of the contestant, in view of the testimony
and the law, is the boldest and most unwarranted demand that has ever
been made of a committee of elections in all the diversified annals of
election cases. If a return such as this, made regularly in all respects
by sworn officers, and surrounded, therefore, by all the strong presump-
tions of honesty and integrity which attach to sworn official action, and
corroborated and confirmed further, and almost overwhelmingly, by the
testimony of the intelligent Eepublican manager who helped to conduct
the election, and was the watcher of the interests of that party ; if such
a return is to be overturned and destroyed by the uncorroborated and
partisan testimony of one person, a clerk in the government land-office,
then there may as well be an end of election contests.

THE PARKER'S STORE POLL.

The official return of this poll gave Mr. Bisbee 151 votes and Mr.
Finley 155 votes.

The contestant, without one scintilla of testimony in the remotest way
attacking or assailing the correctness of this return, proposes to throw
it out. He assumes, without any evidence, that it is fraudulent. The
law says until it is impeached by clear and convincing proof it is itself
the primary evidence of the vote, and that until it is so impeached and
vitiated and rendered worthless as evidence, no other evidence of any
kind, either of the voters or otherwise, can be introduced. It is hardly
worth while to debate such a proposition as that of the contestant in
this instance. If he is right the primary and fundamental rule of evi-
dence is abrogated and destroyed. But he not only proposes to over-
ride the laws of evidence, but he proposes to violate the plainest prin-
ciples of common fairness and to throw out all of contestee's votes and
count more than all his own.

BREVARD COUNTY.

The contestant insists that the election in this county is illegal and
void on the following grounds :

1st. There were no registration books provided and used in the county,
and no legal registration of the electors, as required by law.

2d. From some of the polls the certificates of the result of the election
were sent in to the clerk of the court by mail instead of being carriedin
by an officer of the election, as the law provides. '**~i^.

3d. Because there were nearly one hundred more votes returned than
there are names on the informal and illegal registration lists used at
the election.

224 DIGEST OF, ELECTION CASES.

Section 7 of the amended statutes of Florida of 1877 provides, inter
alia, for "a well-bound and suitable book," in which shall be written or
printed the oath required to be taken by electors. This book is the
general registration book for the entire county, and in it the names of
all the voters, with the date of registration, must appear. In addition
to this book the law requires a separate registration book for every
'election district into which the county is divided. (Section 8, Laws of
1877.)

In support of the foregoing objections to the returns from Brevard
County the contestant relies upon the following testimony, taken by
himself, exparte, without notice, and out of time :

J. A. McCRORY (Rec., 404, 405), being duly sworn, testifies as follows:

Question. What is your name, age, official position, and place of residence ? An-
.swer. My name is James A. McCrory ; aged 26 years; county judge and deputy clerk
-of court ; residing at Titusville.

Q. How long have you held each office ? A. I have been deputy clerk since August,
1880, and county judge since March, 1881.

Q. Where is the county site of Brevard County, and what election district is it in ?
A. Titusville ; election district No. 2.

Q. What is the entire number of election districts in Brevard County ? A. There is
twelve election precincts or election districts.

Q. Has any of those election districts been established since November 1, 1880 ?
A. No, none.

Q. Have you read and are you acquainted with that provision of the election laws
of Florida prescribing a certain form of registration book to be used by registration
officers? A. Yes.

Q. Has that book in the form prescribed been provided for or by or used in Brevard
County ? A. No ; not to my knowledge.

Q. To your knowledge were deputy clerks or registration officers appointed by the
clerk of the court in each of the several election districts on the first Monday in
October, 1880, or thereafter during that month T A. They were appointed, but I can-
not swear to the time or date.

Q. Were those registration officers appointed for every precinct T A. To the best
of my knowledge they were.

Q. Were lists of the electors registered by those officers during the month of Octo-
ber, 1880, returned to the clerk's office before the day of election ? A. To the best of .
my knowledge some were and some were not.

Q. Were the lists so returned bound in book form or upon loose sheets of paper ?
A. On loose sheets of paper.

Q. Was there written or printed upon any or all of those lists so returned at the
time of their return an oath to this purpose or effect: " I do solemnly swear to well
-and truly perform the duties of deputy clerk and registration officer according to the
requirements of the constitution and laws of Florida, so help me God" T A. To the
best of my recollection it was on some, and on some it was not.

Q. Were there written or printed upon any or all of these lists so returned at the
time of their return an oath to this purport or effect : " I do solemnly swear that I will
support, protect, and defend the Constitution and the Government of the United
States and the State of Florida against all enemies, foreign or domestic ; that I will
bear true faith, loyalty, and allegiance to the same, any ordinance or resolutions of
any State convention or legislature to the contrary notwithstanding, so help me God" ?
A. To the best of my recollection it was on some, and on some it was not.

Q. Was there written or printed upon any or all of those lists so returned any head-
ing or certificate showing that they were lists of registered voters, and showing the
number or name of the election district or precinct from which the said lists came ?
A. There was on some, and on some there was not.

Q. From what election precincts or districts were lists of registered voters not re-
turned by the registration officers ? A. To the best of my knowledge they were pre-
cincts west of the Saint John's River.

Q. Were poll-lists returned from any precinct with the returns of the election?
A. Yes.

Q. By whom were the returns of the election of the various precincts brought to
the clerk's office? A. To the best of my recollection they were brought by inspectors
of the elections from all the precincts but two.

Q. What two precincts were those, and in what way did the returns come to the
clerk's office from those precincts ? A. The returns from precinct Fort Drum (No.
11), and Fort Prince (No. 5), was sent by registered letter through the mail.

BISBKE, JR , VS. FINLEY. 225

It will be observed that Mr. McCrory only became deputy clerk in
August, 1880, and the election was iu November. He does not swear
that no registration book had been provided and used in Brevard
County, but says there was none to his knowledge. He swears to the best
of his knowledge that the registration officers were appointed, and that
to the best of his knowledge some of the registration lists were returned
to the office and some not. He swears also that those returned were on
loose sheets of paper, but they were the lists. He swears all through
only to the best of his knowledge, which is very natural for a young officer
acting only as deputy and for so short a time. But there is the testi-
mony of the sheriff on this subject introduced by the contestant:

W. F. RICHARDS, being duly sworn, testifies as follows:

Question. What is your name and what official position do you hold? Answer. My
name is \V. F. Richards, and am sheriff of Brevard County, State of Florida.

Q. Did you receive from the clerk of court of Brevard County, a few days before
the last general election, certain ballot-boxes and lists of registered voters to be de-
livered to the inspectors at the different election precincts? A. I did.

Q. Did you deliver, or cause to be delivered, at each and every precinct, its proper
box and list of registered voters before the opening of the polls on the day of election?
A. I did at all, except at the Fort Prince precinct (No. 5), which I was unable to
reach in time.

He swears that he delivered to every precinct but one, Fort Prince
precinct, No. 5, the proper box and list of registered voters before the
opening of the polls on election day. Therefore every precinct but the
one omitted had all the papers necessary to hold a legal election.

Now, the contestant has put in evidence the general returns for Bre-
vard County, and all the precinct returns properly certified, including
Fort Prince precinct, No. 5. These returns will be found in the record
from pages 1085 to 1 102. The returns from Fort Prince precinct will
be found on page 1102, and show that Mr. Bisbee received 8 votes and
Mr. Fiuley received 9 votes. If, therefore, the vote of this precinct is
illegal it can very easily be ascertained and deducted.

The contestant also put iu evidence the general return of the county,
which is found on page 1085 of the record, and to which is appended
the following certificate :

STATE OF FLORIDA,

County of Brevard :

I hereby certify the above is a true and correct copy as shown on the records iu the
clerk's office, at Titusville, Brevard County, Florida.

In witness hereof I set my hand and the seal of my office this the 27th day of De-
cember, A. D. 1880.

A. A. STEWART,
Clerk Circuit court in and for said County and State.

He also put in evidence a certified copy of the general registration
book, which will be found on page 1090 of the record, and to which is
appended the following certificate:

Registration list of Brevard County.
STATE OF FLORIDA,

County of Brevard :

I hereby certify that this is a true and correct copy of the registration book now in this
office.

In witness whereof I hereunto set my hand and affix iny seal of office, this the 27th
dav of December, A. D. 1880.

[SKAL.] A. A. STEWART,

Clerk Circuit Court in and for said County and State.

This certified list contains the names of 350 voters. The general re-
H. Mis. 35 15

226 DIGEST OF ELECTION CASES.

turn shows that Mr. Finley received 222 votes and that Mr. Bisbee re-
ceived 74 votes.

All this testimony was taken by the contestant ex parte and without
notice, but it shows that there was a substantial compliance with the
registry law, and that the voters should not therefore be disfranchised
because of the neglect of the officers who may have failed to furnish m
all cases the proper registration lists. This is the law plainly laid
down in Wheelock's case (1 Norris, 297), which was decided in Pennsyl-
vania under a statute like the one in Florida. In Wheelock's case it
appears that the general registration list had been made, aud was on
file in the commissioner's office, but there was no registration list at all
at the polls. In that case the supreme court say :

To disfranchise all the voters of a township, as we are asked to do in this petition,
the facts on which we are required to act should show a case free from legal doubt.
If we, by our decision, should permit the carelessness or even the fraud of officers
whose duty it is to furnish a list of voters at the elections to defeat the election and
deprive the people of the county of the officer who wa elected by a majority of
their votes, we would thus make the people suffer for an act in which they did not
participate and which they did not sanction. In so doing, instead of punishing an
officer for the violation of the election law we practically punish the voters of the
county by defeating their choice of a county officer as declared at the election. A
decision of this kind would be fraught with danger by inciting unprincipled or un-
scrupulous persons on the eve of an important election to recreate or destroy the list
of voters or other important papers in a township in which the majority may deter-
mine the result in the county. Rules applicable to contested elections, like other
legal rules, must be uniform, and the results and consequences of decisions therefore
determine their correctness.

MARION COUNTY.

The contestant claims that 122 votes not cast ought to be added to the
returned vote for him from this county on the ground that these votes
were illegally rejected.

By reference to this brief, page 35, it will be seen that he attributes
this to the erroneous ruling of the election officers in holding that un-
registered voters could not vote. The coutestee's counsel denies that
these votes should be added to the contestant's majority in this county r
and states the law on the subject to be as follows, viz:

In order that a vote not cast shall be counted as if cast it must appear that a legal
voter offered to vote a particular ballot, and that he was prevented from doing so by
fraud, violence, or an erroneous ruling of the election officers.

The burden of proof of all these facts is upon the party who seeks to
have the votes not cast counted for him. It devolves upon the contest-
ant therefore to prove that each one of these voters was a legal voter, and
that his vote was illegally rejected.

The ground upon which it is claimed and admitted that these 122 votes
not cast were rejected was because they had not registered, or their
names were not found on the registration list.

The election law of Florida requires registration at least ten days
before the election. The law is as follows :

No person shall be entitled to vote at any election unless he shall have been duly
registered at least ten days previous to the day of said election, nor shall any one be
permitted to vote at any other voting place or precinct than that of the election dis-
trict stated opposite his name on the county registration list. (See act of legislature
of Florida, 1877, pam., p. 69, sec. 3.)

Primafacie, all persons whose names are not found on the registration
list are not legal voters ; and in order to entitle them to vote, their names
not being on the list of registration, it is incumbent on them to make
every preliminary proof which the statute requires.

BISBEE, JR., VS. FINLEY. 227

The election law of Florida, section 7, page 71 (pam. act of 1877)
provides as follows :

Should the name of any person who has been duly registered according to the re-
quirements of this act not appear on the registration list of the election district in
which he resides, he shall, on offering to vote at the voting place or precinct in such
election district, be required to state under oath that he is twenty-one years of ao-e ;
that he has resided in the State of Florida one year, and in the "county six months;
that he was duly registered at least ten days before the election, and that he has not
changed his place of residence to any district other than the one in which he was liv-
ing when he registered, or if he has changed his place of residence since such registra-
tion, that he notified the clerk of the circuit court of the fact of such change in ac-
cordance with the requirements of the first section of this act. He shall also be
required to produce two qualified electors of the election district in ichich he offers to tote,
who shall be personally known to at least two of the inspectors, and icho shall each declare
under oath that such person does lire in the election district in ichich he offers to vote, and
has resided, to their knowledge, in Florida one year, and in the county six months, next pre-
ceding ihe election : whereupon the rote of such person shall be received.

The Record, from p. 410 to p. 672, which is offered by contestant to
establish this list of votes (as claimed by his brief from "p. 37 to p. 41),
does not show that they made this^re/mzwary proof as required by the
above section of the law, nor that they offered to make such proof. In
addition to this, contestee's counsel insists that the evidence of contest-
ant referred to is that of unlettered and unreliable witnesses, conject-
ural and hearsay in its character, and not such evidence as should over-
come the legal presumption that the election officers did their duty,
especially when no fraud is charged or proven.

The Record, pp. 531 and 532, gives a list of such of contestant's wit-
nesses, amounting to 97 of the 222 votes not cast, which he claims ought
to be added to his vote in Marion County, the proof of whose illegal
rejection depends entirely on ex parte affidavits, which affidavits will be
found in the Record from p. 562 to p. 672. These affidavits are not com-
petent evidence, and they do not show that these parties offered to make
the oath required by the State of Florida (sec. 7 of the act of 1877), or
that they were legal voters.

But whether these votes were rejected properly or improperly, it is
very plain that, having been rejected, under the law they cannot bfr
counted unless each voter has adduced in the contest the same proof in
every respect which would have entitled him to vote at the polls on the
day of election. What then would have been required of each one of
these voters whose names did not appear on the registry list! The law
says that each one u shall, oil offering to vote at the voting place or pre-
cinct in such election precinct, be required to state under oath: (1) that
he is twenty one years of age; (2) that he has resided in the State of
Florida one year, (3) and in the county six months; (4) that he was duly
registered at least ten days before the election ; (5) and that he has not
changed his place of residence to any district other than the one in
which he was living when registered, (6) or if he has changed his place
of residence since such registration that he has notified the clerk of the
circuit court of the fact of such change. These are six requirements
which are necessary and indispensable to the legal qualification of any
person whose name is not on the registration list. The testimony is not
very clear what the rejected voters in this instance offered to do at the
time they proposed to vote on the day of election. If they were ready
and willing to swear to all these six matters, then they should have
been allowed to vote. There is no doubt about this. But having been
refused by the election board, although wrongfully, can they be counted
now unless they have subsequently made the same proof during the
contest and have it now before the committee? We think not. The

228 DIGEST OF 'ELECTION CASES.

proof which has been offered in all the various cases does not in any
case, so far as we have been able to discover, come up to the require-
ments of the law. These votes, therefore, although it is possible they
may have been and are now legal votes, must be rejected. We can-
not ignore any one of the muniments of the electoral privilege, which
should be guarded as well to keep out illegal votes as to insure the right
to those who are entitled to vote under the law.

MARION COUNTY.

Moss Bluff poll.

Contestant claims that fraud was committed at this poll by counting votes for con-
testee which were not cast.

In Marion Countyjreject return at Moss Bluff poll and deduct Finley's majority, 59.

To prove that contestee's name was not on the ballots reference is
made to the testimony of William A. Meadows, United States super-
visor. (Rec., pp. 513, 516; George Setters, Rec., pp. 516, 518; C. H.
Heath, Eec., pp. 518, 519.)

The evidence of contestant to establish this fraud is not sufficient.

The testimony upon which contestant relies to reject this poll is that
of William A. Meadows, a supervisor, George Sellers, an unlettered
colored man, and Caleb H. Heath, a United States deputy marshal.
(See Rec. from p. 513 to p. 519.)

None of them swear that there was a single Democratic ticket in the
box which did not have contestant's name on it for Congress, when the
act of Congress requires them to do so. (See sees. 2017, 2028, Rec.)

If these tickets, voted by the Democrats, did not have Fiuley's name
on them for Congress, is it not strange that these partisan Republicans,
the supervisor and deputy marshal, should stand there and not exam-
ine the tickets as they were publicly canvassed by the inspectors?

Meadows, the supervisor, swears that he did not examine but one
Democratic ticket, and that he does not know that it was voted. Sel-
lers swears, and so does Meadows, that the votes were counted openly,
honestly, and correctly. (See Rec., pp. 514 and 518.)

The contestant only proves that on a table near by there were a num-
ber of Democratic tickets which did not have Finley's name on them for
Congress, but were blamk for Congress. He does not prove that any of
these tickets were voted. To suppose that all the Democratic tickets
which were voted at the Moss Bluff poll did not have Finley's name
on them for Congress, without proof of that fact, and that they were
counted by the sworn officers of the election as though his name was
on them, would be to suppose or infer a crime on the part of these sworn
officers without proof, and even without probability. This would be in
gross violation of the principle of law which presumes that the officers
performed their duty honestly and legally. The claim of the contestant
to throw out all the returned vote for Fin ley from the "Moss Bluff"
poll in Marion County is too ridiculous to admit of argument.

McCrary says, in section 371, "when a vote has been admitted, some-
thing more is required than to throw doubt upon it." The evidence of
contestant is not sufficient even to raise a doubt.

NASSAU COUNTY.

Section 108, Revised Statutes United States, provides as follows :
The party desiring to take a deposition under the provisions of this chapter shall

BISBEE, JR., VS. FINLEY. 229

give the opposite party notice in writing of the time and place of taking testimony,

Section 125 of the Eevised Statutes United States, provides that

The notice to take depositions, with the proof or acknowledgment of the service
thereof, and a copy of the subpoena, where any has been served, shall be attached to
the depositions when completed.

We have carefully examined the record, and find no notices as required
by the acts of Congress referred to. And their absence is not accounted
for. (See record, from p. 798 to p. 817.)

ISTone of the testimony from this county can therefore be considered,
and the vote must stand as returned.

BRADFORD COUNTY.

The contestant asks that 87 votes be deducted from Finley's vote in
this county, on the ground that the voters were not registered.
His notice of contest in this county is as follows :

BRADFORD COUNTY.

That in this county, at each poll in said county, five Republican voters offered to
vote for me, whose votes were refused ; that five Republican voters at each poll were
prevented from voting for me by fraud, intimidation, violence, and threats of violence ;
that five persons voted for you who were non-residents, and five other persons voted
for yon at each poll who were minors, and five other persons voted for you at each
poll who had been convicted of an infamous crime, and five other foreign-born persons
voted for you at each poll without producing their naturalization papers. That at
Starke poll, in said county, your political friends, by fraud, violence, intimidation,
threats of violence, discharging fire-arms, and other acts of lawlessness and disorder,
on and immediately preceding the day of election, overawed and terrorized Republican
voters and intimidated them from coming to the polls, and thereby affected the result
of the said election at said poll. I shall ask that the returns from this poll be rejected
as evidence of the vote cast, and the election be set aside.

From the above notice of contest it will be seen that the ground of
non-registration is not embraced in his pleading. There is not even an
allusion to this ground. And this is the only ground with which con-
testant undertakes to assail Bradford County.

Aside from the fact that the evidence relied on by contestant is wholly
inadequate (being altogether inferential), we cannot set the dangerous
precedent that a party to a contest can disregard his pleading and
prove that which he does not pretend to allege. Besides, the record
shows that there was no original testimony taken in this county, and
that the contestant took all his testimony in the ten days allowed for
taking testimony in rebuttal when there was nothing to rebut.

The vote of Bradford County must unquestionably stand as returned.

ORANGE COUNTY.

Mellanville poll.

The contestant claims that 33 Eepublican electors duly offered to vote
and that their votes were illegally refused at this poll.

Be examination of the record as to this county, from p. 748 to p. 764,
we find that there is no notice to take testimony attached to the deposi-
tions in accordance with the requirements of section 125 of the Eevised
Statutes of the United States. No evidence in this county can be con-
sidered.

The record also shows that none of the 33 voters, who, it is claimed

230 DIGEST OF ELECTION CASES.

were not allowed to vote because their names did not appear on the
registration -list, tendered the proof required by section 9 of the election
laws of Florida above quoted as to Marion County. And hence, not
being shown to be legal voters by the laws of Florida, they cannot be
added to contestant's vote.

OBANGKE COUNTY.
Fort Christmas poll.

It is claimed that the whole vote of this poll should be rejected on the
ground that the precinct return does not show that it was signed by the
inspectors of this poll. There is no fraud alleged as to this omission.

The contestant makes the proof by theparol evidence of a single witness
that the returns from this poll were included in the county canvass.
This is not the best evidence, yet, if we take it as admissible evidence,
the presumption of law is that the county canvassers properly and legally
admitted the returns from this poll in the absence of proof to the con-
trary. The election laws of Florida require that the poll-list, the oaths
of the inspectors and clerk, and the registration list of the precinct be
returned, as well as the certificate of the vote, by the precinct officers.
From some or all of these papers it might well appear to the board of
county canvassers that the returns from any given precinct were au-
thentic.

It would be against the well-established law to reject this poll on that
ground. Nothing can be more familiar than the rule laid down by Mc-
Orary, sections 87 and 91 :

It is well settled that the acts of public officers within the sphere of their duties
must be presumed to be correct until the contrarj- is t>ho\vu.

It is presumed that the county canvassing board properly canvassed
the vote of this county, there being no evidence to the contrary.

It is further claimed by the contestant that this poll ought to be re-
jected on the ground of intimidation and violence.

On p. 762 of the Kecord will be found the evidence which contestant
offers to sustain this charge.

There is not a scintilla of evidence in this to show that any voter was
intimidated or interfered with or hindered in any way. There is no
evidence of any violence or disturbance at this poll.

It follows that Fort Christmas poll, in Orange County, should be
counted as returned.

In addition to the above reasons for leaving Orange County stand as
returned, we find from the record that all the evidence taken in this
county by contestant was "ex partej 1 and taken in the ten days when
contestant is allowed by act of Congress to rebut. jSTo original testi-
mony had been taken in said county, and consequently there was noth-
ing to rebut. For this reason also the returns from this county should
stand undisturbed.

MADISON COUNTY.

We have already in the commencement of this report disposed of the
two polls in this county which contestant in the first point made in his
brief claims that the county canvassers of said county failed to include
in their county return.

The contestant, in his notice of contest (p. 1 of the Record), charges
as follows :

BISBEE, JR., VS. FINLEY. 231

MADISON COUNTY.

In this county the gross fraud was committed by your political friends of staffing
the ballot-boxes with ballots containing your name for Representative to Congress,
and drawing out from such boxes ballots containing my name for Representative to
Congress, at each of the two polls in the town of Madison, and at each of the several
polls in the said county known as Cherry Lake, Hamburg, Greenville, and the two
polls at Mosely Hall, and at each of the other polls in said county, whereby I was
cheated and swindled out of five hundred or more votes. I shall ask that the returns
from each of said polls be rejected as evidence of the true vote cast, and that the
votes actually cast for me be counted as cast. I shall ask that the county canvass be
rejected.

2d. That at each of the several polls in the county of Madison ten Republican elect-
ors offered to vote for me whose votes were illegally refused ; that at each of said polls
five Republican electors were prevented from voting for me by fraud, violence, and
intimidation; that five persons at each of said polls voted for you who were not qual-
ified voters, because of non-residence : that five other persons voted for you at each
poll who were minors ; and five other persons voted for you at each poll who had
been convicted of an infamous crime.

We give below the argument of contestant, quoting from his brief
from p. 70 to p. 77, in regard to this county, and after a careful exam-
ination of ihe record we submit that his reasoning is absurd and incon-
sistent that it is neither sustained by the law nor the evidence.

The contestant says in his brief (p. 70) :

There were six (G) election districts in this county where Republicans had a majority.
The names of these six polls are Madison polls Nos. 1 and 2, Greenville, Mosely Hall
Xo. 4. Cherry Lake, and Hamburg.

Greenville poll.

At the first count of the ballots at this poll there were 39 ballots in excess of poll-
list. These 39 being drawn out and destroyed, a second count showed 1*2 more ballots
in excess of the poll-list, niakihg 51 in all. There can be no reasonable ground to
doubt that all of the 54 ballots drawn out of the box and destroyed were Republican
ballots thus reducing the Republican majority at this poll 1O2 votes.

The vote at this poll should be corrected by deducting the 51 in excess of the poll-
list from coutestee's vote and adding to contestant 51 votes. Also add as tendered
and refused 8 votes. Vote returned from this poll was Finley, 168 ; Bisbee, '220. (Rec.,
p. -77.)

Madison poll No. 1.

The excess of ballots over poll-list at this poll was 53, and the testimony establishes
that 52 drawn out were Republican ballots. On the first count of ballots there were
about -.>5 in excess and on second Jcouut 53. This difference in the count was occa-
sioned by the ballots falling apart or separating by handling, not only at this but at
the other polls.

Vote at this poll should be corrected by deducting 52 ballots from Finley, and add-
ing 5-2 to Bisbee. Also add one Republican vote, illegally rejected, to Bisbee. Vote
returned was Bisbee, 25> : Fiuley, 256. (Rec., p. 869.)

Madison County poll Xo. 2.

The excess of ballots over poll-list at this poll on first count was 14, which were
drawn out and destroyed, and they were Republican ballots so destroyed. On second
count there were 20 more, which were not drawn out, but were counted.
reduce the Republican majority 48 at this poll. (Testimony of Dennis Eagan, Rec., p.
. Testimony of Davis for^contestee, Rec., p. 101.)

Vote at this poll should be corrected by deducting 14 drawn out from Finley s vote.
Also, by deducting 20 not drawn out from Tinley's vote, and adding 14 drawn 01
Bisbee's vote.

Vote returned was Bisbee, 302; Finley, 239. (Rec., p. 8/1.)

Chen-y Lake poll.

At this poll on the first count there were 14 ballots in excess of the poll-list, and on
the second count 4 more, making 18 in all. Of these drawn out 14 were Republican,

232 DIGEST OF ELECTION CASES.

according to the evidence. (Testimony of Green B. Hill, United States deputy mar-
shal, Kec., pp. 912, 919. Testimony of' Augustus Johusou, Rec., pp. 920, 924.)

The vote at this poll should therefore be corrected by deducting from Finley's vote
the one (1) vote cast by a minor, and the 14 votes in excess of the poll-list, and by
adding 14 votes in excess of the poll-list toBisbee, and the two (2) votes tendered and
refused, makiug a difference of 31 votes.

Vote returned Bisbee, 172; Fin ley, 86. (Rec., p. 881.)

Hosely Hall poll, No. 4.

At this poll the excess was at least 14 ballots, of which 10, at least, drawn out,
were Republican ballots, and not less than 13 Republican ballots tendered and refused.
(Testimony of Watt S. Gheete, Rec., pp. 940-942.)

The vote of this poll should therefore be corrected by deducting 10 votes from Fin-
ley and adding 23 to Bisbee. Vote returned, Bisbee, 136; Finley, 90. (Rec., 876.)

The majority returned for Bisbee in the Mosely Hall territory at the two polls in
1880 was less by 36 than in 1878, and it will be seen that the correction as given above
of No. 4 makes a difference of 33 votes, or within 3 votes of the majority in 1878.
This proves the great accuracy of the correction according to the evidence, compared
with the vote of 1878.

Hamburg poll.

Contestant was unable to prove by witnesses the excess of ballots over the poll-list
at this poll, and the specific numbers of votes lost by him by the same methods by
which his vote was reduced at the other polls. But there is other evidence showing
quite accurately the contestant's loss at this poll.

Finley. Bisbee.

The vote returned from this poll is 192 256

In 1878 the vote returned was 156 268

Bisbee's majority in 1880, 64. (Rec., p. 879.)

Bisbee's majority in 1878, 112.

Bisbee's majority in 1878 over that of 1880, 48, while the total votes was greater
by 24.

It will be subsequently shown that it is proper to estimate the true vote at a given
election by taking that of a prior election at which no fraud was charged.

But there is other evidence. It is proven that on the poll-list of this poll there are
the names of 278 known Republicans marked with an X. The total number on poll-
list is 447, consequently there are on poll-list the names of 169 Democrats : 278 Repub-
licans; 169 Democrats ; 109 Republican majority instead of 64 majority returned, a
difference in majority of 45, and 3 votes less than the majority in 1878.

Correcting the votes by the number of known Republicans on poll-list, and giving
to contestee all on poll-list not known to be Republicans (and it will be subsequently
shown that such testimony is proper in the absence of better), we have its following
result :

Finley. Bisbee.

Vote returned 192 256

Actual vote cast according to poll-list 169 278

Difference 23 22

The vote at this poll will therefore be corrected by deducting from Finley 23 votes
and adding to Bisbee 22 votes.

Substantially the same result is obtained by taking the vote of 1878, or by distribu-
ting the twenty-four votes in excess of 1878 over that of 1880 in proportion to its
vote of 1878.

Summarizing the differences in the vote of the six polls between the returns and as
shown by the evidence, we have the following :

Bisbee. Finley.

Greenville poll add 59 deduct 51

Madison No. 1

Madison No. 2

Cherry Lake

Mosely Hall, No. 4 .
Hamburg

53
14
16
23
22

52
34
15
10
23

Total 187 185

Difference 372

Add returned majority 109

Bisbee's actual majority 482 instead of 109, as returned.

BISBEE, JR., VS. FINLEY. 233

The theory of contestant as to Madison County, when analyzed,
amounts to this, viz : He claims that fraud has been proven against the
above six polling places, and prays in his notice of contest as follows :

In this county the gross fraud was committed by your political friends of stuffing
the ballot-boxes with ballots containing yournamefor Representative to Congress at
each of the two polls in the town of Madison, and at each of the several polls in the
said county known as Cherry Lake, Hamburg, Greenville, and the two polls at Moseley
Hall, and at each of the other polls in said county, whereby I was cheated and swindled
out of five hundred and more votes. I shall ask that the returns from each of said polls
be rejected as evidence of the truevote cast. I shall ask that the county canvass be rejected as
illegal and fraudulent.'' (Rec., p. 1.)

It will be seen from this that contestant prays " that the returns from
each of said })oUs be rejected as evidence of the true vote cast." Yet in his
absurd though gainful calculation he constructs his whole theory in re-
gard to each of the considered polls in Madison County upon the returns
which he prays to have rejected as evidence.

Suppose, for sake of argument, we grant his prayer, and reject the
returns from each of these polls as evidence, on the ground that their
credibility is destroyed by the proof of fraud. How, then, can either
party claim any votes from any of these precincts, except by proof
aliunde of the returns ? And there is no such proof in the record.

The position is unreasonable and grossly and palpably in violation of
the primary principles of law.

It is contended in behalf of contestant in regard to the Xewnansville
poll, in Alachua County, that the following language (quoted from Mc-
Crary) gives the true rule of law, viz :

It is very clear that if the returns are set aside no votes not otherwise proven can
be counted.

This we admit is the true rule of law, and it is a gross inconsistency
that would apply it to Alachua County and would wholly depart from
it in Madison County and attempt to set up an entirely new rule, for
which there is not an authority or precedent in the books.

The only way known to the law of disposing of such a case is either
to accept the returns or to reject them u in toto," and put both parties-
upon the proof of their respective vote " aliunde." But the contestant
seeks to establish an entirely new rule, unknown to the law.

The law cannot bend to suit the purposes of either party to the contest.

There is no principle of law more clearly established, says McCrary.

And the safe rule probably is, that when an election board are proved to have will-
fully and deliberately committed a fraud, even though it aftect a number of votes loo
small to change the result, it is sufficient to destroy all confidence in their official acts,
and to put the party claiming anything under the election conducted by them to the proof
of his rotes by evidence other than the return. (See McCrary on Elec., p. 174.)

McCrary, on p. 372, says :

If the fraud be clearly shown to exist to snch an extent as to satisfy the mind that
the return does not show the truth, and no evidence is furnished by either party to a
contest, and no investigation of the committee to enable them to deduce the truth
therefrom, then no alternative is left but to reject such a return.

To use it under such a state of facts is to use as true what is shown to be false. (See
Washburn vs. Voorhies, 2 Baftlett, 54.)

This statement of the law is peculiarly applicable to all the precincts
attacked in Madison County.

There are but two ways known to the law of disposing of Madison
County either to let the returns stand as officially made, or to discredit
them altogether. For if they are false they cannot be used for any pur-
pose.

If they are false let us apply the above unquestioned rule of law to all

234 DIGEST OF ELECTION CASES.

of the six precincts attacked in Madison County, viz : Greenville, Madi-
son poll No. 1, Madison poll No. 2, Cherry Lake poll, Mosely Hall poll,
Hamburg poll. The returns from these respective polls give the follow-
ing vote :

Greenville, Rec., 873: Bisbee, 220; Fiuley, 168; Bisbee's majority 52

Madison No. 1, Rec., p. 869 : Bisbee, 256 ; Finley, 256 ; Bisbee's majority

.Madison No. 2, Rec., p. 871 : Bisbee, 302 ; Finley, 239 ; Bisbee's majority 63

Cherry Lake, Rec., p. 881: Bisbee, 172; Finley, 86; Bisbee's majority 86

Moseley Hall, Rec., 876: Bisbee, 136; Fiuley, 90; Bisbee's majority 46

Hamburg, Rec., 879: Bisbee, 256; Fiuley, 192; Bisbee's majority 64

Bisbee's total majority for above polls 311

The return from the whole county of Madison (see Rec., p. 1055)
.gives

Pinley, 1,055; Bisbee, 1,014; Finley's majority 41

If the above polls are rejected, add. 311

flaking Fiuley's majority for Madison County, instead of 41, as reported 352

No one can escape this conclusion.

But the so-called " correction" which contestant makes of the returns
of the above several polls is very remarkable, and leads to a monstrous
proposition of injustice to the coutestee, doubling the vote of contestant
"by a strange process of addition and subtraction.

Let us take for example Greenville. Contestant claims that there were
51 ballots in the box in excess of the poll list as kept by the clerk (which
the law says shall be destroyed unopened).

The proof is that these 51 ballots were destroyed and not counted for
either candidate. This is sworn to by contestant's witness Stripling, on
p. 944 of the Rec. Then, if these votes in excess, which the law of Florida
commands to be destroyed and not counted, were destroyed in con-
formity to law, upon what ground can contestant claim that they should
be deducted from Finley's vote, when they were never counted for
Finley? And he makes this strange estimate as to all of the above poll-
ing places in Madison. Even if we should admit that, from the fact
that there were a number of votes in the ballot-box at each of these
polls in excess of the poll-list, there was sufficient evidence to warrant
the conclusion that these votes rightfully belonged to contestant, it
would be clearly wrong to deduct them from Fiuley's vote when they
had never been counted for Finley. Such a proposition could never be
maintained for a moment. This observation is as applicable to all the
above six polls in Madison County which contestant has assailed as it
is to the Greenville poll.

As Madison County can only be legally disposed of (as the case is
made by the contestant) either by entirely throwing out and ignoring
the six polls assailed, or by leaving them as returned, we do not deem
it necessary to enter into a critical examination of the evidence in re-
gard to the fraud charged and denied in this county. Suffice it to say
that the record shows no proof of fraud made as to any of these polls,
except as to Madison poll No. 1, where the vote as returned was a tie.

The testimony to refute the charge of fraud as to this poll is found in
the record from page 1009 to 1036. But it can serve no useful purpose
to discuss this question, as the vote from Madison County must either
stand as returned or be rejected, and in consequence of their rejection
-311 votes should be deducted from Bisbee's aggregate vote in the dis-
trict, or added to Finley's aggregate majority in the district.

BISBEE, JR., VS. FINLEY. 235

HAMILTON COUNTY.

The contestant claims as follows (see his brief, pp. 102 and 106.) :

HAMILTON COUNTY.

Poll No. 3.

We ask that the election at this poll be set aside entirely, 011 the ground of illegal
and fraudulent conduct on the part of the election officer and the friends of coutestee.
It i* proven that the polling place was a scene of disorder, drunkenness, and violence, con-
tinning through the greater part of the day, and that the result of the election was affected
thereby.

In Hamilton County reject return at No. 3 poll, and deduct Fiuley'a majority, no
votes being allowed to either party, 68.

Below we append a copy of the notice of contest, and the copy of the
answer of the returned member in reference to this county. The notice
of contest is as follows :

HAMILTON COUNTY.

That in the county of Hamilton, at each poll of said county, ten Republican elect-
ors offered to vote for me, and were refused; that ten other Republican electors at
each of said polls offered to vote for me and were prevented by personal violence and
intimidation ; and I shall ask that such votes be counted for me as if cast.

That at each of the polls in said county ten persons voted for you who were not
legally registered voters ; that ten persons voted for you at each of said polls who were
non-residents ; that five persons voted for you at each of said polls who were minors ;
that five persons voted for you at each of said polls who were convicted of infamous
crimes ; that five other persons voted for you at each poll, who were of foreign birth,
without exhibiting their naturalization papers.

That at poll No. 3, in the county of Hamilton, your political friends sold, and caused
to be sold, intoxicating liquors to the electors, whereby many of the electors became
intoxicated and riotous and disorderly, and compelled electors, in a state of intoxica-
tion, to vote for you who otherwise would have voted for me. That the authority of
the United States supervisors and deputy marshals were defied and ignored by the
inspectors ; that the inspectors of election acquiesced in and consented to scenes of
lawlessness and disorder, and knowingly allowed persons to vote for you who were
not qualified voters, and refused to receive the votes of those who offered to vote for
me and were qualified electors, whereby the result of the election was effected.

Your political friends at this poll purchased and influenced electors to vote for you
by means of bribery, promise of money, and other articles of value, at the said dis-
trict No. 3, who* otherwise would have voted for me ; and I shall ask that the return
from this district be rejected as evidence of the vote cast, and that the election at
this poll be entirely set aside.

The answer is as follows :

HAMILTON COUNTY.

The coutestee denies that at any of the polling-places within said county of Hamil-
ton, at said election, any qualified electors who offered to vote for contestant were
illegally refused the right to vote according to their choice, or that at any polling place
in said county of Hamilton any qualified electors were prevented from voting for
contestant by fraud, violence, or intimidation, or that at any polling place within
said county of Hamilton any votes were cast and counted for contestee of persons
disqualified by non-registration and who did not comply with the registration and
other laws as the law allows ; or that any votes were cast and counted at any of said
polls in said county of Hamilton for contestee of persons under the age of twenty-one
years, or of persons who were not resident, as the laws require ; or of persons wh<
were convicted of crime ; or of persons who were foreign born, who were not qualified
to vote.

And the contestee, answering as to poll number three (3), in said county of Hamil-
ton, denies the allegations in the notice of contest in respect to said poll, and each ol
them ; and especially denies each charge of improper and illegal conduct on the part
of the inspectors at' said poll, and denies that said inspectors knowingly contrived,

236 DIGEST OF ELECTION CASES.

counseled, or connived at the violation of law. by the use of intoxicating liquors or
otherwise; or willingly acquiesced in sceues of violence and lawlessness to defeat the
fair election at said poll, >r knowingly allowed persons to vote for contestee who were
disqualified by law to vote ; or that the political friends of contestee improperly, cor-
ruptly, and illegally, by bribery or other illegal and corrupt means, induced electors
to vote for contestee, who otherwise would have voted for contestant at said poll;
and denies that the result of said election was changed by reason of any of the matters
alleged by contestant, at said poll No. 3, Hamilton County, at said election.

We quote the entire pleading of both contestant and coutestee, as to
this county, so as to present the issue squarely.

In the record (p. J 183 to p. 1195) will be found the evidence in regard
to this county.

It will be seen that it is all contestant's testimony, taken in rebuttal
when there had been no original testimony taken in this county, and
nothing to rebut ; that contestee has had no chance to controvert it.

What is the issue presented by the pleading as to this poll ? To elim-
inate the material allegations in the notice of contest, they are as fol-
lows, viz :

1st. The contestee's political friends sold, and caused to be sold, intoxicating liq-
uors to the electors, whereby many of the electors became intoxicated and riotous
and disorderly, and compelled electors, in a state of intoxication, to vote for contestee
who otherwise would have voted for contestant.

This allegation is denied by the answer. Is it sustained by the evi-
dence I

The whole of the testimony shows only one voter who was led up to
the poll, and there is no evidence, not a scintilla, that he was compelled
to vote against his will, and not a particle of competent evidence that
he voted for the contestee.

The next averment is :

That the authority of the United States supervisors and deputy marshals was defied
and ignored by the inspectors.

What was the legal authority of United States supervisors and deputy
marshals at a country polling place like this ? Let us see. Section
2029 of the Revised Statutes of the United States provides as fol-
lows:

The supervisors of election appointed for any county or parish in ajiy Congressional
district, at the instance of ten citizens, as provided in section two thousand and eleven,
shall have no authority to make arrests, or to perform other duties than to be in the
immediate presence of the officers holding the election, and to witness their proceed-
ings, including the counting of the votes and the making of a return thereof.

The act of Congress defines and limits the authority to the passive
duty of watching and scrutinizing the conduct of the election, and of
reporting any violation of the election laws.

As to deputy marshals, the law does not authorize or warrant the ap-
pointment of any deputy marshal, at any election, except in a city or
town of 20,000 inhabitants or upward. (See sec. 2021, Rev. Stat. U. S.)

What authority of the United States supervisor and deputy marshal
was defied ? What does the evidence of contestant show? On p. 1184
of the Record the witness for contestant. Ruckley, testified that a row
ensued in consequence of some Democrat leading a drunken negro to
the poll; and that these doughty officers, the supervisor and deputy
marshal, were engaged in the row, and actually commenced it. (See Rec.,
p. 1190.) On p. 1186 of the testimony of same witness is the evidence
upon which contestant bases the charge concerning the inspectors' ig-
noring and defying the authority of the deputy marshal and supervisor.
We give it literally, as follows:

BISBEE, JR., VS. FINLEY. 237

Q. Did or not the inspectors apparently acquiesce in' the violent conduct of the
voters around the polls ? A. I heard nothing for or against jit, more than one of the
supervisors ordered the polls closed during the row.

Q. Did the inspectors pay any regard to the order of the supervisor? A. None
whatever that I could see.

This is the head aud front of the offending on the part of the inspect-
ors of the election, who by the laws of the State are intrusted with the
management of the election themselves. They did not close the poll
and stop the election at the command of a supervisor who had no such
authority vested in him by act of Congress.

The next charge in the notice of contest is as follows :

That the inspectors acquiesced in and consented to scenes of lawlessness and dis-
order, and knowingly allowed persons to vote for you who were not qualified voters,
and refused to receive the votes of those who offered to vote for me and w*re qualified
electors, whereby the result of the election was affected.

Where is the evidence " that the inspectors acquiesced in and con-
sented to scenes of violence?"

Rackley, on p. 1186, testifies as follows :

Q. Did the inspectors make any effort to quell the disturbance and disorder, and
maintain peace and quiet about the polls! A. None that I saw or heard.

Q. Would you not have seen it if they had done so ? A. I should think I could, as
1 was within 10 or 15 feet of the polls.

Q. Did or did not the inspectors apparently acquiesce in the violent conduct around
the polls? A. I heard nothing for or against it, more than one of the supervisors
ordered the polls closed during the row.

Again, the deputy marshal, who, together with the supervisor, com-
menced the row (according to his own testimony, see Eecord, p. 1190),
says, on page 1102 :

Q. Did the inspectors make any efforts to suppress the violence and turbulence
around the polls ? A. Not that I saw or heard, and I was near the polls all day.

^Ye quote from the record the description of this lilliputian row, in
which this Ajax deputy marshal was engaged according to his own
testimony, on page 1190 of the Eecord. Here is the description he gives
of the great row:

Q. How long did the row continue ? And describe it. A. Somewhere about 30 min-
utes. Just in the time of the row, M. O. Waldron was in the act of striking a negro
when I got to him ; I succeeded in stopping him. Just at that time A. S. Smith
jerked up a club and started to B. E. Raulersou to strike him, and some one inter-
fered. Just at that time B. Wesson was trying to get his pistol, when I got to him.
I also told him that if he didn't stop fussing there that I should have to arrest him.
Wylie Lee said that if I wouldn't arrest him that he would take him away ; and that
ended the row there at the polls. The cause of my making no arrest was that I con-
sidered it worth a man's life to do it.

Such is the character of the case made by contestant by exparte tes-
timony at Hamilton County poll Xo. 3.

The^ assault made upon this poll is so frivolous and flimsy that we feel
convinced that to throw it out would be an arbitrary disfrauchisement
of a whole voting district without legal warrant or excuse. This poll
should stand as returned.

DUVAL, PUTNAM, ST. JOHN'S, NASSAU COUNTY.

Foreign-born electors.
Section 3, article 14, of the constitution of Florida, reads as follows :

At
vote,

authorized to conduct and supervise such

declaration of intention, otherwise he shall not be allowed to vote, and any naturalized

238 DIGEST OF ELECTION CASES

citizen offering to vote shall produce before said persons, lawfully authorized to con-
duct and supervise the election, the certificate of naturalization, or a duly sealed and
certified copy thereof; otherwise lie shall not be allowed to rote.

The contestant claims that " about seventy-five alien-born persons
voted for contestee without complying with this provision of our con-
stitution."

He contends that " the words of the negative provision of the section
of the constitution quoted, prohibiting the reception of votes by alien-
born persons, unless they produce their naturalization papers, is sub-
stantially and in effect the same as the negative words of the provisions
requiring registration, which are: 'No person not duly registered accord-
ing to law shall be allowed to vote. 7 "

He also says :

It has long been settled, and will not be controverted, that a vote cast by a person
not registered according to law, is an illegal vote, even under a law containiug no
negative words.

It cannot be denied that the people have the right to fix the qualifications of elect-
ors, and to prescribe the evidence of such qualifications. In Florida they have done
this in the organic law.

For the native-born the evidence of the qualification and right to vote is registration ; for
the alien-born the certificate of naturalization or declaration of intention in addition
to registration.

Each class is prohibited by identical words in the constitution from voting without,
producing this evidence.

To hold that a rote by an unregistered citizen is illegal, and that a rote by an alien-born
person without producing the evidence of naturalization, without which the law says
he shall not be allowed to vote, is legal, would be glaringly inconsistent, and illogical.
Both are illegal upon the same principle. The contestee does not contend that an alieu-
born person who is not naturalized, or has not declared his intention to become a cit-
izen, is a legal voter. But he contends that if the inspectors of election did not re-
quire such a person to produce this evidence of a qualified voter he was not bound to,
and his vote is legal.

This extract from the contestant's argument gives the issue fairly
which is involved in this portion of the contest. He rests his case against
these alleged foreign-born votes on the analogy which they bear to un-
registered votes, and claims that they are illegal for the same reasons
which justify the rejection of unregistered votes. Taking the argument
of the contestant as a true statement of the case, what is the law appli-
cable thereto ?

An authority immediately to the point, and from the State of Florida^
and between the same parties as the present case, is found in the case
of Finley r*. Bisbee in the Forty-filth Congress, wherein the majority of
the Committee on Elections held :

If a person votes at an election his vote is presumed under the law to be legal until
the contrary be proven in a legal way, for the reasons, first, that the acts of an officer
or officers of an election within the scope of their authority are presumed to be cor-
rect and honest until the contrary is made to appear, and therefore that they as such
officers would not receive an illegal vote; second, that the presumption is always
against the commission of a fraudulent or illegal act, and therefore that a man would
nor cast an illegal vote.

This case, which rules the one in hand, was affirmed by a large ma-
jority as the law by which Congress will be bound in such cases in the
contest of Curtin vs. Yocum in the Forty-sixth Congress.

The report of Mr. Calkins, in Curtin vs. Yocum, holds :

It is the duty of the election officers to comply with this law. It is imperative on
them, and if they fail they subject themselves to the penalties provided in sec. 12 of
tbe registry law. But to allow a non-registered voter to vote without requiring him
to comply with the law, if he is otherwise qualified, is quite a different question. If
he refuses to comply on being requested, then it is clearly the duty of the officers to
refuse his vote because he refuses to obey a reasonable regulation" prescribed by the

B1SBEE, JR., VS. FINLEY. 239

legislature, and he hurts no one but himself. But if he is allowed to rote mthout briny
required to file the affidavits and is otherwise qualified his vote, is not an illegal one. The
officers of the election have simply failed to take and preserve the evidence which the
law requires of them, but the failure on their part to take and preserve this evidence
does not reach the qualification of the voter.

The report further holds :

That the clause " no voter shall be deprived of the privilege of voting by reason of
his name not being registered" protects all legal voters in the right of suffrage, and
the inference to our mind is irresistible under this decision that he is not even/>ri/na
facie an illegal voter because of non-registration (See McCrary,sec. 423.)

That case was also largely ruled by the decision of Judge Briggs, in
the case of Gillin vs. Armstrong (Leg. Int., July 19,1878), which holds i

That unregistered voters having voted without making the affidavits, the law pre-
sumes that they are legal, and it cannot be permitted to show that they were not so-
legal.

The case of Curtin vs. Yocum, which is not reported yet, we quote-
fully on this point. It was tried. on the sole issue that an unregistered
vote was an illegal one. The present able chairman of the Election
Committee (Mr. Calkins), who made the report of the minority in that
case, which was adopted by the House, and thereby became the law of
Congress on the subject, said in his closing argument :

All other grounds were abandoned ; the majority report is bottomed upon that sin-
gle proposition of law, that any person voting whose name does not appear on the
registry list is an illegal roter.

This case showed that there were (1) between one and two thousand
persons who voted at the election who were not registered ; (2) that
there were three hundred and eighty persons voted who were not regis-
tered and who were shown by affirmative testimony not to have made-
the proof required of non- registered voters to entitle them to vote; and
(3) that there were ninety persons who voted for the contestee, more
than his majority, who were not registered and made no proof required
of non-registered voters. The issue was therefore plainly and fairly-
made. Mr. Calkins in his argument said :

I call the attention of the members of the House especially to the conclusion reached
by Judge Briggs in construing this law. He says: "By accepting the vote," re-
ferring to the non-registered voter who presents himself at the polls without an affi-
davit, &c. "By accepting the vote without demanding the proof they deprive the-
voter of the opportunity of furnishing it." To construe the law as contended for by my
friend from Pennsylvania (Mr. Beltzhoover) makes it a mere trap for the reason that
the voter presumes, or he has a right to presume, that he is registered. He has lived in
the precinct the time required by law ; he has paid hia tax ; the assessor has been to
his house ; he knows his name ought to be on the registry list, and he goes up to
the ballot-box with the ballot in his hand. They take his ballot and deposit it in the
ballot-box, and afterward, when he cannot furnish the proof, it is contended his vote
is an illegal one, while if the election officers had called his attention to it at the mo-
ment he could have supplied the evidence required and established his right to vote
in the mode prescribed. But that evidence was not demanded. He voted knowing
that he had a legal right to vote, but the legal evidence of his right was not required
of him by the election officers. And applying the same doctrine as in Wheelock's
case, "you cannot deprive the legal voter of the right to vote by reason of the failure of
the officer to do his duty," and it seems to me that the position is unassailable.

The next position I assume is that a vote having been deposited in the ballot-box
unchallenged is presumed to be a legal vote until the contrary is shown ; and I call
attention to the case of Perry r*. Ryan, 68 Illinois, 172. " Where a person votes at an
election without having been registered and without any proof of right, if it does not
appear he was challenged or any objection made to his vote, the presumption must be
that he was a legal voter and was known to the judges of election." In 83 Illinois, 498,
where a registry law very similar to the law now under consideration was construed
by that court, it was held, "The presumption of the legality of a vote in no way de-
pends upon the omission to challenge or to object to it, or any presumed knowledge
of the judges of election, but it arises from the fact of its having been deposited m

240 DIGEST OF ELECTION CASES.

the bollot-box. When once deposited it will be presumed to be a legal vote until
there is evidence to the contrary."

The same doctrine was held in the case of Finley vs. Bisbee m this House in the last
Congress It is said by the chairman of my committee that the provisions of the
law of Florida and the law of Pennsylvania are different, and therefore a different
rule prevails. If they are materially different, Mr. Speaker, I admit it, but they are
not materially different, because in the Bisbee-Fiuley case the committee held one
provision of the constitution, which was mandatory in its language, to be directory
merely. The language was that certain persons offering to vote shall " present to
the officers certain naturalization papers at the time they offered to vote. That
was a part of the constitution of Florida, and yet the Committee on Elections in con-
struing it said the clause was not mandatory, although it was a part of the organic
law of Florida, but was directory merely. Let me quote a sentence from that report,
which I believe was written by Judge Cobb. He says : "It is the settled law of elec-
tion cases that where persons vote without challenge it will be presumed that they
were entitled to vote, and that the sworn officers of the election who received their
votes performed their duty properly and honestly, and the burden of proof to show
the contrary devolves upon the party denying their right." Mark, Mr. Speaker, "the
settled law of all election cases" is the language, and this House solemnly sitting as
a court adjudged that to be the law. And yet in this case the majority of the com-
mittee say that every vote that went into the ballot-boxes unchallenged in Pennsyl-
vania, which were unregistered, are presumed to be illegal. I admit that the courts
of Wisconsin, in two cases, have held their law mandatory in construing a similar
provision. I also take occasion to state that Judge Dixon, one of the ablest judges
that ever sat on the supreme bench of that or any other State, apologizes for having
so held.

Mr. Stevenson, who also sustained the minority report in the Curtiii
vs. Yocum case, and argued it at length, rested the case on " the pivotal
point " of the status of an unregistered voter, who has been permitted
to cast his ballot without making the proof required by law. He says :

The law presumes the officers conducting the election to have discharged their
duty ; presumes they have received the votes of none other than legally qualified
voters. This presumption can only be rebutted by evidence.

He then goes on to cite very fully the decision made by Congress in
the Finley vs. Bisbee case in the Forty-fifth Congress, and gives the
strongest extracts from the report of the committee. He also cites
Wheelock's case, 1 Norris, 297, and the case of Gillon us. Armstrong, and
resting his case on these authorities, concludes :

I think I have shown, Mr. Speaker, by recognized authorities, first, that the elector
cannot be deprived of the right of suffrage by the ignorance or misfeasance of the
election official; second, that under the constitution of Pennsylvania he cannot be de-
barred from voting by reason of non-registration ; third, that the officers conducting
the election are presumed to have done their duty, and received only legal votes ;
fourth, the burden of proof is on the party assailing their legality.

TESTIMONY WHICH SHOULD BE EXCLUDED.

The record shows that all the evidence taken in the counties mentioned
below by contestant was taken as rebutting testimony, after the expira-
tion of the time allowed by law for taking original testimony ; that
neither contestant nor contestee had taken any testimony in any of these
counties during the forty days allowed to each, and that consequently
there was nothing to rebut ; that the contestant disregarded the act of
Congress, which says that " the contestant shall take testimony during
the first forty days, the returned member during the succeeding forty
days, and the contestant may take testimony iurebuttal only during the
remaining ten days of said period" (of ninety days).

The following are the counties where contestant took such original
testimony in the ten days allowed him for rebutting testimony only,
and where contestee had taken no testimony ; and where there could
not therefore possibly have been anything to rebut, viz : Brevard, Brad-

BISBEE, JR., VS. FINLEY. 241

ford, Columbia, Hamilton, Putnam, Orange, St. John's, Suwanee, and
Volusia counties.

The record shows that no evidence-in-chief was taken in or concerning
the election in any of these counties, and none whatever by the coii-
testee during his forty days, and that all of contestant's testimony
therein was taken after contestee's time had elapsed, and after the con-
testant's time for rebuttal had commenced. See Vallandigham vs.
Campbell (1st Bartlett, p. 223); Brooks vs. Davis (1st Bartlett, 244;
McCrary on Elec., sees. 347, 348) ; Bromberg t?s. Haralson (first session
Forty-fourth Congress, vol. 5, Index to Miscellaneous Documents Digest
of Election Cases, p. 364.)

It is claimed that all this testimony should be rejected.

Against all the evidence taken by the contestant in the above-men-
tioned counties the unanimous report of the Committee on Elections in
case of Bromberg vs. Haralson, first session Forty-fourth Congress, is
cited. It appeared in that case that in Wilcox County the contestant,
Bromberg, the Democratic candidate, undertook to violate the election
law, just as the contestant in this case has done, and that his testimony
so taken was rejected. (See Bromberg vs. Haralson, supra.)

All the testimony in the above counties is ex parte in behalf of con-
testant. The notices served by contestant on coutestee for taking this
testimony in all those counties informed.contestee that contestant would
proceed to take testimony in rebuttal. The contestee, knowing that no
original testimony had been taken in any of these counties, and that
there could be nothing to rebut, declined to attend such examinations
of witnesses. The contestant, instead of taking rebutting testimony,
proceeded to take original testimony.

The contestant also contends that his leading attorney was sick, and
that he (contestant) was absent in Washington attending to his duties
as a member of Congress, and that this is a sufficient excuse for not
taking testimony in the time and manner allowed by law.

The record shows that the answer of the returned member was served
on the 3d of February, 1881, and upon that day contestant's forty days
for taking testimony commenced. The contestant contends that on
account of the trouble which occurred in Madison County on the 8th of
February, his leading attorney, H. Jenkins, became sick. The follow-
ing extract from the certificate of the officer before whom his evidence
was taken, p. 885 of the Record, shows that on the 18th of February
his attorney, Jenkins, was attending to his case. (See Eecord, 885, as
follows: )

Contested election, Forty-seventh Congress of the United States.

HORATIO BISBEE, JR., )

vs. >

JESSE J. FINLEY. )

In pursuance of notice of contestant, in the above-entitled cause, to contestee, of
taking testimony, a copy of which notice is hereunto attached, filed by contestant,
I have this day begun the examination of witnesses on behalf of contestant, H. Bis-
bee, jr., at my office in Jacksonville, Duvall County, Florida, this 18th day of Feb-
ruary, 1881 ; H. Jenkins, jr., attorney fefr contestant, and S. J. Finley, attorney for
contestee, being present.

J. C. MARCY, JR.,

Notary Public.

On page 67 of the Record the following certificate of Watson Porter,
the officer who took contestant's testimony in Alachua County, shows
that contestant appeared there by another attorney, and that he did not
commence taking his testimony there until the 7th of March.
H. Mis. 35 16

242 DIGEST OF ELECTION CASES.

ALACHUA COUNTY.

Pursuant to notice of contestant in this case, I, Watson Porter, notary public for
the State of Florida at large, sat in my office in the town of Gainesville, Fla., Alachua
County, on Monday, the 7th day of March, A. D. IBdl, at 9 o'clock a. m., for the pur-
pose of examining witnesses and taking evidence on behalf of the contestant; W. T.
Pierson and F. E. Hughes appearing as counsel for the contestant, and no one appear-
ing for the contestee.

Counsel for contestant offers to be filed a copy of the notice of taking testimony, with
a list of witnesses for district No. 12, which is filed and marked Exhibit A.

Counsel for contestant also offers to be filed a copy of notice of contest in this case,
which is filed and marked Exhibit B.

Contestant's counsel also offers a copy of the answer of contestee, which is filed and
marked Exhibit C.

Counsel for contestant files in evidence a certified copy of the poll-list for Arredonda
district No. 12, Alachua County, filed and marked Exhibit D.

At 9.30 a. m. T. F. King appeared as counsel for contestee.

The Becord shows that contestant's forty days were not diligently oc-
cupied, but frittered away; so that there is no excuse for asking any
further indulgence to contestant. The cont estant says in his brief (p. 2)
that most of the frauds were charged to have been committed at less
than a dozen polls.

Sec. 109, Eev. Stat., provides

That testimony in contested election cases may be taken at two or more places at
the same time.

And in section 110, Rev. Stat., so numerous a class of officers are au-
thorized to take testimony that in every county there is no difficulty in
finding officers qualified to take such testim ony.

Mr. McCrary, sec. 348, says :

The statute as it now stands (see sec. 108, Rev. Stat. U. S.) affords an opportunity
for investigation, so ample and complete that it is believed that it will seldom happen
that the House will find it necessary to depart from its provision in order to do the
most complete and perfect justice, and it will no doubt be adhered to as furnishing the
best possible guide for instituting and carrying forward inquiries of this character.

We have considered almost all the testimony thus irregularly and
illegally taken, but we earnestly protest against the admission of such
evidence unless great injustice would be done by rejecting it. We prefer
to adhere to the law. The above-mentioned counties should stand as
returned, however, both from the fact that all the testimony taken
by contestant to assail them is unwarranted, and because the testimony
itself, as shown by the record, is insufficient to warrant the committee
in rejecting the official returns and thereby disfranchising hundreds of
legal voters.

CONCLUSION.

We believe from the evidence, and under the law applicable to the
case, that Alachua, Madison, and Marion Counties should stand as re-
turned.

The returns from the whole district give

Finley, 13,105 votes ; Bisbee, 11,953 votes ; Finley's majority, 1,152.

If the six polls, where fraud is charged in Madison County, should be
rejected, 311 votes (Bisbee's majority in them) should be added to Fin-
ley's returned majority of the whole district ; thus, 1,152 + 311, which
would give Finley's majority for the whole district 1,463 votes.

But if we give the contestant the benefit of the most extreme liber-
ality, and' allow him all votes to which he could in any way be entitled,
the summary would be as follows, viz :

COOK VS. CUTTS. 243

Finley's official vote 13 ( 430

Bisbee's official vote 12,42?

Add from Alachua <S

Add from Marion

122

Add from Madison

328

Add from Orange

iq flnn

Finley's majority

4^0

From this may be deducted
were disallowed

all other votes which there is any proof to

show

114

Leaving Finley's majority..

316

Thus the most favorable showing which could in any way be obtained
would leave the contestant still over 300 votes short of an election.

We therefore recommend the adoption of the following resolutions :

1st. Resolved, That Horatio Bisbee, jr., was not elected as a Eepresent-
ative to the Forty-seventh Congress of the United States from the sec-
ond Congressional district of Florida, and is not entitled to occupy a
seat in this House as such.

2d. Resolved, That Jesse J. Finley was duly elected as a Representa-
tive from the second Congressional district of Florida to the Forty-
seventh Congress of the United States, and is entitled to retain his seat
as such.

F. E. BELTZHOOVEE.
L. H. DAY1S.

S. W. MOULTOK.

G. ATHEETON.

I concur in the conclusion that Finley's actual majority, as stated in
the summary, is 316.

G. W. JONES.

JOHN C. COOK vs. MARSENA E. CTJTTS.

SIXTH CONGRESSIONAL, DISTRICT OF IOWA.

Contestant charges that persons voted for contestee who had not been in the State
six [months ?] and that five votes were erroneously counted for contestee in foot-
ing up a tally-sheet.

Held, That as the constitution of Iowa required six months' residence in the State be-
fore a person can vote, and a number of persons voted for contestee who had not
resided in the State that length of time, such votes must be deducted from the
certified vote of contestee.

That the error of five votes in footing the tally-sheet is so apparent that the same
must be corrected, and that number of votes also be deducted from contestee.

Witnesses called to testify refused to disclose for whom they voted. Held, That this
may be shown by circumstances : Who they were employed by ; who brought
them to the polls ; who challenged them ; who urged and directed them, and gave
them their tickets.

The House adopted the majority report.

244 DIGEST OF 'ELECTION CASES.

FEBRUARY 19, 1883. Mr. BELTZHOOVER, from the Committee on Elec-
tions, submitted the following

REPORT:

The Committee on Elections, to whom was referred the contested-election
case of J. C. Cook vs. M. E. Cutte,from the sixth Congressional district
of the State of Iowa, submit the following report :

The vote, as found by the State canvassing board certified to them,
was as follows :

For contestee, 18,619, and contestant, 17,918.

But the county canvassers of Monroe County wrongfully excluded
and failed to certify the vote of two townships (Cedar and Franklin),
in which contestant had 213and incumbent 121 (Rec., 130 to 174, inc.).
Adding this, we have the vote as actually cast for contestee, 18,140;
for contestant, 18,131. The majority of the sitting member is therefore
conceded to be only 9.

II.

Contestant charges that at the Albia coal mine, in Monroe County,
colored men had been imported from Missouri and Kansas to work in
the mines, and that of these miners a large number who had not been
in the State six months voted for contestee.

The constitution of Iowa requires full naturalization, residence in tho
State six months, and excludes idiots and lunatics.

While the proof tends strongly to show that about 100 of these colored
men voted for Mr. Cutts, which was considerably in excess of the num-
ber entitled to vote, yet it lacks that definiteness and clearness in iden-
tifying and pointing out the voters and showing the vote illegal neces-
sary to warrant us in excluding more than two votes, those of Lucius
Bell and John Walker, especially the latter.

It is shown that they voted, and voted the ticket on which was con-
testee's name (Rec., 128 and 129), and were not legal voters. Also, the
pay-roll of the company shows that neither were at the mine a-s early as
May, 1880.

The contestee offered evidence to explain or account for the absence
of other names from this roll, but made no attempt to explain as to
these ; and as to Walker, in addition to this, it is shown that he had no
intention of making Iowa his home, but always intended to return to
his family in Leavenworth, Kans.

III.

The contestant rests his case mainly on the charge that in Des Moines
and Harrison Townships, in Mahaska County, twenty- three illegal votes
were polled for contestee by colored men working in Muchikinock coal
mines.

It is abundantly proved, and in fact not denied, that the coal company
imported, in "lots or crowds," colored men as miners from Virginia j and
that these were brought by Maj. Thomas Shumate, who was employed
for that purpose (Bee., 319, 321). The first crowd came to Iowa March
5, 1880. (Rec., 550, interrogatory 10, and 583, interrogatory 2.)

COOK VS. CUTTS. 245

The second party came April 4, 1880. (Ree., 560 and 561, interroga-
tories 2 and 16 ; 583, interrogatory 2 ; 585, interrogatories 2, 3, and 4 ;
and 626, interrogatory 3.)

The fourth caine July 2, 1880. (Rec., 550, interrogatories 5 and 6;
559, interrogatory 122 ; 585, interrogatories 8 and 9 ; 586, interroga-
tories 23, 24, and 25 ; 592, interrogatory 38 ; and 395, top of page.)

The fifth came in September and the sixth in October, 1880.

On this there is no dispute. It is sustained by the testimony of wit-
nesses on both sides.

The time of the arrival of the " third or May party " only is in dis-
pute.

The contestant claims they came May 15, and the contestee claims
they came May 1.

If they came after May 1 they were too late to vote.

Briefly stated, the testimony on this point is as follows : The witness
Shumate, who brought the April and all subsequent crowds from Vir-
ginia, says they came there on the 15th of May. He exhibits letters
written by himself to his wife, who was then in Virginia, and with whom
he corresponded while in Iowa.

These letters were written at Muchikinock, April 13, 17, and 26,
and from these he is positive that he did not leave Iowa for that crowd
until after the 26th. It would take him at least three days to make the
trip each way, and several days in Virginia to gather up the crowd and
prepare for emigration, thus making it impossible to have arrived in
Iowa as early as the 1st.

He also exhibits and puts in evidence a similar letter written and
dated at Muchikinock on May 16, 1880, in which he says he arrived
the day before, and narrates the incidents of the trip to Iowa. An in-
spection of this letter shows many evidences of its genuineness. He is
supported in this by the testimony of five other witnesses (Rec., 96, 97,
366, 391, 392, 393, 397, 507, 508, and 511) ; each of these five witnesses
has some circumstance by which to fix the date.

The contestee introduces eight witnesses, who swear that the crowd
came May 1 ; some of these were of the May party and some were not.
But none of them have any circumstance or fact by which to aid the
memory in fixing the date, and as they testified two years thereafter
they may well have been mistaken as to the date.

But whatever doubt remains on this point is dispelled by the rebut-
ting evidence taken by contestant.

In the cross-examination of the contestee's witnesses, and also by other
evidence, it is shown that this crowd came from Chicago over the C.
and N. W. railway to Marshall town, Iowa, in a car which was dropped
by the train at that place some time in the night, and they remained
in it until morning, when they were put into an old black passenger
coach on the Central Iowa Railway, which was attached to a freight
train and run down to Muchikinock. (Rec., 562, interrogatory 57 ; 592,
interrogatories 41 and 42; 610, top of page; 632, interrogatories 24 to 34;
648, interrogatory 46; 653, interrogatories 17 to 37; and 505, interroga-
tories 10 to 21.)

It is, then, by contestant in rebutting, conclusively shown by the
records in the general offices of these two roads, and several of their
officers and employe's, that this did not occur on May 1 nor thereabouts,
but did occur on May 15.

Further than this, these people were gathered up by Shumate at
Staunton, Va., and their leaving was a matter of such public notoriety
that it was published and commented upon at the time by the Stauntou

246 DIGEST OF ELECTION CASES.

newspapers. The original publications being exhibited before the com-
mittee, show that this crowd left Stauuton for Iowa on May 12, and
there can be no room for doubt that they came to Iowa on the 15th.

It cannot be claimed that two parties came in May, for it is not at-
tempted to be shown in the testimony. The records of the coal com-
pany show only one May party; and contestee, by his own evidence,
showed the July party to have been the fourth party, whereas if two
parties had come in May the July crowd would necessarily have been
the fifth. (Rec., 550, interrogatories 5 and 6; 559, interrogatory 122 ;
585, interrogatories 8, 9, and 10; 586, interrogatories 23, 24, and 25.)

The contestant, in his brief, asserted that it was conceded that only
one crowd came in May; and contestee, in his printed brief, conceded
this, and said that it was doubtful whether they arrived May 1st or 15th.
(See contestee's brief, page 45.)

Major Shumate testifies positively that seven men, to wit, Jesse X.
Carroll, Charles Garrison, George W. Lewis, Henry Lewis, Sam Mop-
pin, James S. Martin, and Linza Robinson, came in the "third of May
crowd." This is not only not disputed, but coutestee's witnesses testi-
fied to substantially the s'ame thing. (Rec., 589,559, G09, interrogatories
9, 14, and 15 ; 631 and 632, interrogatories 3 and*26 ; and page 653.) And
contestee, in his printed brief, admits that the third of May party em-
braced these seven names. (See brief, page 45.)

IV.

The votes of the following of said colored miners are also claimed to
be illegal on the same ground, to wit: James Usher, James Byers, John
Clark, William Harland, William H. Hues, Spencer James, John W.
Jackson, Andrew Lewis, Earnest Linsey, G. W. Randall, Hardin White,
Sam Winbush, Randolph Willis, Joseph James, John Burks, and D. F.
or Frank Woodward, and it is claimed that they came, some in the July,
some in the September, and some in the October crowd. And on this
point there is no conflict in the evidence.

It is shown that the company made out monthly pay-rolls, which was
the basis of its monthly payments to and settlements with its men. In
addition to this it is shown that the company advanced their railroad
fare from Virginia to Iowa, and as a crowd was brought their names
were entered on a roster or book kept for that purpose, and the amount
advanced to each was placed under his name as an item of charge; then
as he was charged upon the pay-roll of that month, on such account,
the same was credited to him on this roster. This book fails to show
the day of the month when any man came, but by observing the order
in which they appear, and the month of the pay-roll referred to there,
one can readily see the mouth when each man came.

Many of the men also, while giving testimony, stated the time of their
arrival, which invariably corresponds with the time thus shown on the
roster. In addition to this, the contestee in his testimony showed who
came in the May crowd, all of whom appear upon the roster as coming
in May. George W. Lewis testifies for the coutestee to this effect (Rec.,
631), and his name is on the roster as the last of the May crowd. The
name immediately following his, as the first of the July crowd, is Adam
Fielding, who also testifies for incumbent that he came in the July
crowd ; and all these names last specified as illegal voters appear upon
the roster after him. It is certainly apparent from this that these men
came in July or later.

This book was kept by the company (a corporation) for the purpose

COOK VS. CUTTS. 247

of keeping track of these men and keeping their accounts, and in the
absence of any effort by the contestee to contradict, where the means to
contradict it, if incorrect, was at hand, must be conclusive. Kone of
these names appear on the pay-rolls until after May ; and while a name
might have been omitted from the pay-roll by accident or a mistake
.made in the name, yet when the name also appears upon the roster for
the first time after the May crowd, and is there put down as coming in
July or later, there is left no room for reasonable doubt that such man
came too late to vote. And, further, the witness Shumate is interro-
gated specifically as to all but two of these (Burks and Woodward), and
says they came later than May, and the fact is noteworthy that, although
testifying without any aid from the roster (which was then in possession
of the contestee), the time he fixed as the month of the arrival of these
men is uniformly the same as that indicated by the roster when it
was finally produced.

It seems that the company did quite an extensive business, paying
on its rolls for labor during the month of May over $5,000, and that
these rolls are the basis of each monthly settlement with its men, and
the roster was kept for the purpose of keeping track of the colored
people brought there, and keeping their accounts. They also appear
to have been kept with a fair degree of accuracy, and therefore they
furnish a very reliable character of evidence, especially as the contestee
had at hand witnesses to dispute their accuracy if not correct in a par-
ticular instance.

As to the two men Burks and Woodward, concerning whom Shumate
was not interrogated, their names occur on the roster among those who
clearly appear to have come in July.

As to Shumate, it may be said he is sustained by the records and
books of the coal company on every material point.

He testifies intelligently, with apparently no motive to falsify, and it
is noteworthy that on ail the points on which he was disputed he is
clearly shown to have been correct by evidence afterwards discovered.

That the character of this roster or book of accounts may be under-
stood we quote from the evidence.

In the testimony originally taken (March, 1881), McNeal, one of the
proprietors of the mine, said, " We have a record containing the name
and time of commencing work of all the men brought from Virginia,"
<&c., but declined to produce it (Kec., 119) ; and afterwards (March,
1882), he was again called, and, after testifying that all the colored men
were brought by Major Shumate, he says :

Question. When these colored men were brought were their names entered upon a
register or roster, and their advances for railroad fare charged to them upon the same
at the time ?

Answer. Their names were entered upon the roster, and the amount of each charged.
This may have been done immediately on arrival, or afterwards. This was done in
my office by William Phillips, who. is now in Austin, Texas.

Question. You, I suppose, frequently saw this register or roster?

Answer. Yes, sir.

Question. State whether or not it contained the names of the men coming in the
various lots as they arrived.

Answer. It was kept for that purpose, and should have contained them, and the
supposition is that it does (Rec., 319, bottom).

Major Shumate, after testifying that he brought all the colored men,
from Virginia, says :

Question. What was done by the company or its clerks and yourself with reference
to makiug a record or account of those men when they came ? Please state fully.

Answer. We kept a register or roster of them. The rule was that all their accounts
were charged up in that, including transportation, except store account.

248 DIGEST OF ELECTION CASES.

Question. How soon was this record made, and what did you call it t

Answer. It was but a few days after our arrival. I took a memorandum of their
names on the trip out and furnished it in sheet form to Mr. McNeal made up the
roster, as we called it. (Rec., 321, bottom ; 322, top ; and again Rec., 325, top.)

Interrogatory. Did you vote at the fall election of 1880 ?

Answer. No, sir ; I don't know who voted ; I took no lot nor part in it. I never
saw any poll-book or anything connected with it. I would like to explain before
cross-examination. Whenever I went for a party of men and returned, I rendered an-
account at the office of my expenses and charges to the men, from a memorandum
book, and handed in sheet form to the clerk, but made no entries myself on books of
the company ; frequently the roster was made in my presence. William Phillips
usually asked me to stay and see the entries on the books, as he could not read my
writing very well and could not make out the names.

Cross-examination :

Interrogatory. Did you see entries made in the roster ?

Answer. I saw them after they were made. Mr. Phillips usually would call 011
me to read the names from my sheets, and he would take them down while writing
at his desk. I had frequent occasion to examine them after they were made. I can't
say that I did. (Rec., 325, top.)

Bringing these men to the mines and the employment of colored
miners was a new thing ; the company advanced their railroad fare, and
it would be necessary for it to keep some account of the matters, and
this book would be what might be expected.

The first men upon it are the March party ; they are each charged
the railroad fare, $12, and are credited for work done in March.

It will be observed that the same amount credited to each man on the
roster is charged to him on the March pay-roll, and the same names
on the roster as the March party are on the March pay-roll. (Rec.,- 412 T
&c.)

Then comes those who came in April ; here again railroad fare is.
charged, and each man credited by work done in April.

Then conies the May party, as follows, beginning on page 67, and end-
ing on page 78 of the roster :

Annie Carter, Sam. Naupin, Grace Maupin, Mary Carter, Julia Bess r
Linzea Robinson, Mary Robinson, James Martin, Henry Lewis, Minnie
Garrison, Charles Garrison, Mary Ella Garrison, Mary A. Carter. Willie
Garrison, Wm. Howard, Andy Turner, Mary Bates, Mary E. Irwine ?
Jesse Carroll, James Gary, Sarah Garrison, Sarah Poindexter, George
Lewis.

Those preceding them were credited " by April rolls," being for work
done in April ; all these are credited " by May rolls," showing that they
did no work before May.

These various parties appear upon the roster, each separate and dis-
tinct from the others, and in the order in which they came, with the
single exception that five men are entered and their accounts begun at
the close of the April or second crowds, but the entries themselves show
that they were of the March party, so that even this shows correctly
the month they came. It is accounted for by the facts that McNeil, pro
prietor, himself came to Virginia for the first lot, and himself paid the
expenses of this party out; and as this was a new project, the plan of
keeping their accounts was probably not adopted nor systematized im-
mediately on their arrival. So that we have the positive proof in the
books and accounts of the coal company that these seventeen men came
in July, September, and October, 1880, and the distinct evidence of the
man who personally gathered them up and took them out, who gives
the time of arrival of each to the same effect. Against this there is not
even an attempt to offer evidence. In short, it stands undisputed by
a word of evidence or the slighest circumstance.

These sixteen added to the seven who came in the May crowd makes

COOK VS. CUTTS. 249

twenty-three who are clearly proven to have come too late to vote.
And we might add that these colored people were taken to the polls
and voted by white men who were laboring to secure for their party as
large a vote as possible, and it would be strange had not illegal votes
been cast by some of them.

These men are all shown to have voted in East Des Moines and Har-
rison Townships.

First is given a certified copy of the poll-list in each township (Rec. y
99 and 103) ; second, the original poll-list is proved by the clerks and
put in evidence (Bee., 344 and 346) ; and, third, the clerks of the election
marked the name of each colored miner on the poll-book as he voted,
and they appeared and testified that these men voted.

In East Des Moines Township

Jesse H. Carroll is No .

Earnest J. Liiisey (see Rec. , 99, for correct name)

James S. Martin (see Rec., 99, for correct name)

George W. Lewis (see Rec., 99, for correct name)

Henry Lewis (see Rec., 99, for correct name) ,

Charles Garrison (see Rec., 99, for correct name)

31
46

184

185

(Rec., 98 and 100, &c.)

In Harrison Township

Nelson Woodford is No . . 214

Sam Winbush " " .. 216

Randolph Willis " " .. 232

Linda Robinson " " ..235

William Garland 24?

John Burks 265

Sam Moppin 25g

John Clark , 320

Jos. James 322

James Byers 323

Wm. H. Hues 825

Spencer James 320

John W. Jackson 3%

James Usher 3%

Andrew Lewis 334

D. F. Woodard 33 5

G. W. Randall 33 6

Jos. James is on the poll list as Josiah James. Two witnesses swear
his name is Josep^ or Joseph H. James, and that there was only this
one James at the mines or among the colored people. And it appears,
that he was at the polls at the time this crowd voted. (Rec., 368 and
395.)

Shumate says James came in September (Rec., 395).

James Byers is on the list as James Byes ; but Foster, a colored mau r
swears he gave James Byers his ticket and he saw him vote, and his
name is just before that of Foster on the poll-list. (Rec. 3 382, bottom.)

VI.

To prove for -whom these votes were cast contestant issued subpoenas
for all these men. The returns on the subpoenas show that only a very
few (three) could be found. (Rec., 306, &c.) All those who appeared
either under summons from contestant or as witnesses for contestee de-
clined to disclose for whom they voted when asked by contestant; and
all those who came in the May crowd refused to say whether they voted

250 DIGEST OF ELECTION CASES.

or not. (Eec., Geo. W. Lewis, 334; Jesse K Carroll, 335; James Martin,
612; Geo. W. Lewis, 633; Hugh Lee, 643.)

It is shown generally that the men who employed these miners were
favorable to Mr. Cutts ; that they were brought to the polls by Eepub-
licans; that their votes were challenged by Democrats and Greenback -
rs (contestant's friends), and their votes urged and directed by Eepub-
licans. Kepublicans and men distributing Republican tickets gave
them their ballots, &c. (Eec., 112, and from 326 to 391, inclusive.)

When the voter cannot, by reasonable diligence, be found, or, being found, refuses
to state for whom he voted, it may be shown by circumstances. And here great lati-
tude must be allowed. (McCrary on Elections, p. 306.)

By the above circumstances the contestant has shown all that can
be shown in any case, that these colored miners all voted the Repub-
lican ticket, on which was contestee's name.

In addition to this it is shown by a colored man who went with the
last crowd that voted at Harrison Township poll that he and another
man supplied the whole lot with tickets that were voted, and that they
were Eepublican tickets; and this is nowhere denied. (Eec., 367.)
This crowd voted just (before the polls closed, as shown by the poll list
(Eec., 349), beginning with No. 320 and ending with No. 388. This in-
cludes James Usher, James Byers, John Clark, Wm. H. Hues, Spencer
James, John W. Jackson, Andrew Lewis, G. W. Randall, Hardiu
White, Joseph James, and D. F. Woodard, eleven in number.

In addition to this it is shown that these illegal voters all were Ee-
publicans, and in the celebrated " New Jersey cases " it was held that
this alone was sufficient to warrant the conclusion that they voted their
party ticket.

It is further shown by evidence and the poll-list that all the colored
men from the coal mines voted together, there being two crowds
brought to each poll at different times ; and to illustrate the testimony
on this point we take the testimony of Thomas S. Barton (Eec., 712) :

Well, they came up in a wagon, with fifteen or twenty in it, a white ruau driving
a Republican whooping and hallooing, " Hurrah for Cutts!" They would get out
of the wagon, march them up to a couple of men who had tickets for them Repub-
lican tickets. After they got their tickets they would go up to the window where
they voted, and they would vote just as fast as they could be sworn in, and then they
would load them up and start back with them after another load, and went through
the same performance next time.

The same is shown by numerous witnesses as to all the colored men
at both polls ; and that when Greenback or Demodifcitic tickets were
offered they were refused.

The testimony is voluminous and uucontradicted, and no one can
read it without being convinced that all the colored miners voted for
contestee.

We have no hesitation in concluding that twenty-three votes should
be deducted from the contestee on account of the colored vote from
Muchikinock.

VII.

Contestant challenges numerous votes cast for the contestee as ille-
gal in the various counties of the district. The contestee concedes
seven of these as sufficiently proved to be deducted, and the proof
shows that in Jasper County that of Thomas Hanson (Eec., 13), Valen-
tine Eader (Eec., 14), C. F. Erricksoa (Eec., 20), Henry S. Hall, and
Thomas Hall should be deducted as cast by unnaturalized foreigners.
(See contestant's brief in reply, page 7.)

COOK VS. CUTTS. 251

In Mahaska County, Patric O'Connor voted the Republican ticket
(Eec., 108) ; was an idiot or imbecile ; had been so adjudged, and was
under guardianship. (Eec., 93, 94, and 108.)

In Appanoose County, that of Mr. Guernsey. (See contestant's brief
in reply, bottom of page 10.)

Adding these votes to the twenty-three at Muchikinock and two at
Albia makes thirty-two to be deducted from incumbent, and reduces
his total vote to 18,108.

VIII.

The- contestee claims that certain persons not qualified voters voted
for the contestant in various parts of the district.

There is a technical objection to this claim which, under former de-
cisions, rests upon a valid foundation.

There is in the record no answer to contestant's notice. There is on
file an answer, but no proof of service except ex parte affidavit, and
this shows no personal service on contestant. It has been expressly held
in Follett vs. Dellano and in Boyd vs. Kelso that this cannot be ac-
cepted as proof of service. (2 Bartlett, 121.)

But even waving this it cannot be claimed that more than seven of
the votes thus challenged can be considered illegal. Those of J. H.
Fisher, L. Alfrey, and Joseph Fisher may well be considered doubtful.

They lived in the suburbs of the city of Centerville, which was in
Center Township. A short time before the election the board of super-
visors divided this township ; these men having always voted at the
court-house, and being legal voters of the county, voted at the court-
house, in ignorance of the change ; but we have included them as illegal
votes; also the vote of Buce S. Pierson cast in John's Township, and
that of William Dines, all of which were cast in Appanoose County ;
that of C. F. Eeuaud, in Jasper County, and that of A. W. Matox, in
Mahaska County; and we think that this is all that should be allowed
under this head. As to the others, they are fully discussed in the brief
of the contestee and the reply of contestant, the latter beginning page
9. As to some of these votes there is no proof whatever that they
voted except hearsay. As to others, there is no proof for whom they
voted, except the voters' admissions, which, according to McCrary and
the recent case of Cessna vs. Myers, is insufficient.

In nearly all of them the proof relied on by the contestee consists of
some statement of the voter made in casual conversation to a witness
under circumstances making them neither competent nor reliable.

But even if the evidence be accepted as competent and sufficient to
prove the facts claimed, in no case would the facts thus established be
sufficient to show the vote illegal. The objections in each instance are
clearly stated in contestant's reply brief, beginning on page 9.

But if the list of illegal votes cast fox contestant should be extended,
then, under the same rules of evidence, the list of those cast for the
contestee of the same class must be enlarged at least as much. In
short, under any rule that may be adopted, applied fairly to both sides,
this class of votes will be equal.

The contestee claims that two votes should be added to his and two
deducted from contestant on account of error in official count in Wash-
ington Township, Appanoose County.

All the evidence upon this point is that one witness, on April 18, 1881,
counted the ballots then in the box, and found this change from the
official count.

252 DIGEST OF ELECTION CASES.

There are two insurmountable objections to this : First, there is not
the slightest proof that the ballots counted April 18, 1881, were those
cast November 2, 1880.

Under the authorities quoted in contestant's reply brief, page 2, being
McCrary on Elections, and Gooding vs. Wilson, decided in 1872, and
we may* add the recent case of People vs. Livingston, 79th New York
Court of Appeals, 289, all directly in point, this must be affirmatively
shown before this second count can be received as evidence.

Not only this, but it appears affirmatively that the box was exposed,
and, so to* speak, in the possession of a party unfriendly to contestant,
and not an officer, with the key in the box, until April 16, and that
before this recount he predicted accu^tely the change that a recount
would disclose. (Eec., 41.)

The ballots were counted by one individual, and not produced and
publicly counted before the officer taking the deposition.

Three of the election officers appear and testify to the correctness of
the official count.

The evidence also shows an error of two against the contestant, as
shown by a recount of the ballots in another township, made before the
county canvassers a few days after the official count, but we have ex-
cluded this upon the same ground.

IX.

There is apparently an error of five in the official canvass in Jasper
County.

The tally -list shows five votes less cast for the contestee than were
counted for him. This tally list is a part of the official returns, and an
inspection of the original shows clearly how the mistake in the final
figures was made. But even laying this aside, the evidence on illegal
voting shows so clearly and conclusively that contestant was duly
elected, that we deem it unnecessary to venture upon any point in the
least degree doubtful.

We recommend to the committee for adoption and report to the House
the following resolutions :

Resolved, That M. E. Cutts was not elected as Eepresentative from
the sixth district of Iowa, and is not entitled to a seat on the floor of
this House.

Resolved, That John C. Cook was duly elected as Eepreseutative from
the sixth district of Iowa, and is entitled to a seat on the floor of this
House.

CONTESTED-ELECTION CASE OF COOK vs. CUTTS.

Mr. THOMPSON, on behalf of a minority of the Committee on Elections,
to whom was referred the contested-election case of John C. Cook rs.
M. E. Cutts, from the sixth Congressional district of Iowa, respectfully
submits the following

REPORT:

In the sixth Congressional district in the State of Iowa, at the elec-
tion held November 2, 1880, M. E. Cutts and John C. Cook were op-
posing candidates for the office of Eepresentative in Congress for that
district. The State canvassers found and returned the vote as follows :

COOK VS. CUTTS. 253

M. E. Cutts 18,017

Cutts 2

18, 019

John C. Cook 17, 911

John Cook 2

Cook 5

17, 918
C. Cooper ^ 1

Thereby finding a majority for Cutts of 101 votes, and the certificate
of election was given to Cutts, who took his seat in the Forty-seventh
Congress and still retains it. Within the time allowed by statute Mr.
Cook served notice of contest on Mr. Cutts.

Mr. Cutts also, and within the proper time, made answer. No ques-
tion arises upon the notice and answer, and they need not be stated.

From the notice of contest it will appear that many charges of fraud,
illegal voting, &c., are made; but after the testimony was taken con-
testant relies almost entirelj" upon the alleged illegal votes cast by
colored voters then employed at the coal mines in Mahaska County, at
a place known as Muchachinock. It will therefore be unnecessary to
take much of time or space in discussing matters unconnected with any
other transaction.

It is proper here to state that the vote rejected by the county board
of supervisors (who, by the laws of Iowa, are authorized to canvass the
vote of the county), to wit, the vote of Cedar and Franklin Townships,
in Monroe County, by which Mr. Cook was deprived of 213 votes which
he should have allowed him, and Mr. Cutts was deprived of 121 votes
which should be allowed, thus leaving a majority of 9 votes for Mr. Cutts
in the final count. The question to be determined now is, has Mr.
Cook, by satisfactory evidence, shown illegal votes cast for Mr. Cutts
to overcome this majority. To do this he, as before stated, has relied
chiefly upon the vote of the colored miners in Mahaska County, and
claims that he has shown that 23 illegal votes were cast at that place
for Mr. Cutts, to wit, James Usher, James Byres, John Clark, Jessee N.
Carroll, William Garland, Charles Garrison, William H. Hughes, Spencer
James, John W. Jackson, Andrew Lewis, Ernest Lindsey, John Burk,
G. W. Lewis, Henry Lewis, Samuel Maupier, James Martin, Lindsey Rob-
inson, G. W. Randall, Hardiu White (or Nelson Woodford), Samuel Win-
bush, Randolph Willis, Joseph James, and D. F. Woodard.

To establish the fact that these men were not legal voters, the evi-
dence of one Thomas Shumate, who was employed by the coal company
to bring colored men from Virginia, is principally relied upon by the
contestant, and who in fact did at various times collect men in Virginia,
and bring them to the mines in Iowa, for the company in whose employ
he was at that time; but at the time his evidence was taken he was not
in the employ of the company. Mr. Shumate was not asked nor did
he testify to anything concerning either John Burk or D. F. or ^Nelson
Woodard, nor has any one attempted to show that they were not legal
voters. We therefore drop these names and consider the 21 yet remain-
ing.

As to Randolph Willis, before named, Page Irwin, on page 560, tes-
tifies that he came to the mines on the 4th day of April, 1880, and that
said Randolph Willis came before he did. (See page 565 of Record.)

As to Joseph James, it does not appear that he voted at that election,
and his name does not appear on the poll-list, and no one pretends that

254 DIGEST OF ELECTION CASES.

he was seen or known to vote, and the only evidence on that point is
one Foster, who, on page 368, says :

Question. Did this James go with yon in one of these two wagons to the polls ?
Answer. I could not say positively whether he did or not; I think he was at the
polls ; can't say positively whether he voted or not.

It is true that the name of Josiah H. James does appear on the poll-
list ; but in the absence of evidence establishing the fact that they were
one and the same, we cannot presume they were.

It is evident from reading the evidence of Shumate that he made
several trips to and from Virginia and brought several lots of persons
to the mines, and it is equally apparent that he was greatly at fault as
to dates, and was compelled to correct them in many instances, and
while it is not controverted by contestee that a number of persons were
brought to the mines on the 15th of May, 1880, he does insist that those
who voted at the election were not of those, and that none of those who
voted came later than May 1, 1880 ; in proof of this contestee has intro-
duced the evidence of several of these men who, Mr. Shumate says, came
on or after the loth of May, to wit, Jessie N. Carroll, George "NY. Lewis,
James Martin, and Andrew Turner, each of whom say that they came
to the mines on the 1st day of May, 1880, and state circumstances by
which they know the date.

We cannot reject their evidence without violating all the rules of evi-
dence regulating human testimony, and by which we arrive at truth.
No other of these twenty-one were found at the time of taking the evi-
dence in this contest. Another fact must be stated : the character of
Mr. Shumate for truth and veracity was impeached by between twenty-
five- and. thirty witnesses, both white and colored men, many of whom
had known him in Virginia and others in Iowa, and many of them hav-
ing had dealings with him. A large number of witnesses, most of
whom had had but a short acquaintance with him, gave him a good
character so far as they knew. It is also admitted by Shumate while
giving his evidence that he had repeatedly stated to persons, previous
to his being sworn as a witness, that so far as he knew there were no
illegal votes, and that not all had voted who had a right to. (See Rec-
ord, 402.)

It is also in evidence that he advised men to vote whom he knew
were not legal voters, and, as a matter of fact, they had been in the
State but a few days (Record, 570, 604, and 582), and he states that he
was a Democrat, and certainly not a friend of Mr. Cutts, and if he knew
of any illegal votes it is clear he made no such revelation until after he
had been discharged by the company, about July 1, 1882, although the
contest had been going on from December, 1880, a period of more than
one year. Another fact certainly proved is, that with these men who
swear they came last of April or first of May, came the following women,
to wit, Mary Irvin, Julia Bess, Annie Carter, Grace Maupin, Mary Bates,
Minnie Garrison, and Mary Robinson, all of whom are shown by the
pay-rolls of the company to have worked twenty-four days in the month
of May, and received of the company pay for that time, and it is estab-
lished by the evidence that these came before the 15th of May, and
shows that Shumate was entirely mistaken. This payment for work is
shown by the pay -rolls of the company, which were introduced in evi-
dence by the contestant. True, that since this evidence was printed
some one has marked on the margin of the pay-rolls opposite the names
of these women, "mistake; only worked 14 days in May." No one even
insinuates that this was on the rolls when first introduced, or when

COOK VS. CUTTS. 255

printed last sessioii, and we may certainly conclude that by whomso-
ever made it was not by any friend of Mr. Cutts.

It is not necessary to conclude that Shumate is shown to be of bad
repute for truth and veracity, for in any event it must be apparent that
he was mistaken in very material matters, and does not even tend to
prove that illegal votes were cast as claimed j but direct and positive
testimony does show that those voting on the day of election were not
the persons who came on the 15th day of May.

Much has been said in evidence about a certain book kept by the
company, known as the roster. That book, by the consent of Mr.
Cutts, has been put in evidence and considered by the committee ; but
it fails to prove any one thing material to this contest. It is not made
up or kept as the witness seemed to think, as it has no dates ; it con-
tains individual accounts in certain months, but furnishes no dates from
which to determine when any one came. Entries relative to work done
by individuals first appear weeks and months after they had arrived
and commenced work.

As a circumstance showing of how little value is the roster as relia-
ble evidence, may be mentioned the fact that contestant in his printed
argument claims that Nelson Woodford, John Brook, and D. F. Wood-
ward were illegal voters, because their names appear on the roster after
the names of those who came in May. And yet Mr. Shumate himself
says that Woodford came in March or April, and sent some money to-
Virginia by him when he returned in May (page 401 of Eecord) ; and
thus it is shown very conclusively that nothing accurate can be obtained
from the roster.

It also appears that the name of Lewis Buckner is the last one on the
roster, but the May pay-rolls show that he worked at the mines during;
the greater part or all of May. To illustrate :

Page 51, a man who came in March first appears.

Page 52, a man who came in March first appears.

Page 52, a man who came in April appears.

Page 53, a man who came in March appears.

Page 53, a man who came in April appears.

Page 54, two men who came in March appear.

Page 55. a man who came in March appears.

Page 55, a man who came in April appears.

Page 56, two men who came in March appear.

Page 57, one woman who came in April appears.

Page 57, one woman who came in March appears.

Page 62, two that came in May, and three others that came in ApriL

Page 62, are names of two persons who came in May, and after that
are names of some who came in April.

And Mr. Shumate had to admit that a study of this roster would not
aid him to fix dates ; nor does it aid in any particular to fix the date of
arrival of any man or woman brought from Virginia or employed by
the company, for it clearly shows that no attempt was made by the
book-keeper to set down the time that any one whose accounts were kept
arrived at the mines, and we refer to the evidence of the men who Shu-
mate thinks came on May 15, 1880. So that the fapts and circumstances
mentioned by which they fix the time of their arrival may be critically
examined. And it will not do to say that, because they were ignorant
black men, their testimony must be disregarded. They had more inter-
est in knowing when they came and when they commenced work than
Mr. Shumate could possibly have. This evidence is found as follows :

256 DIGEST OF ELECTION CASES.

That of Page Irvin, Eecord, p. 500; W. T. Howard, 589; J. N. Carrol,
600; James Martin, 609; George W. Lewis, 631; and Andrew Turner,
652. Accepting the preponderance of the evidence on this point, aside
from any question of character so emphatically involved, and for the
purposes of deciding facts only, we cannot allow these votes to be lost to
Mr. Cutts without disregarding the evidence; but in addition to these
seven men, Eeuben Hill, page 585; Taylor Jefferson, 615; G. C. Cane,
639 and Mr. Southal, 646, each of whom swear that a number of people
came to the mines about May 1, 1880, and Turner says he was one of
the number.

The presumption of the law is that any vote cast is a legal one; but in
the case of these men, whose votes are claimed to be illegal, each of
them was challenged by one of contestant's witnesses, whose evidence
is found on page 328 of the Eecord, by name W. J. McFall. He states
that he challenged the whole of the colored vote at East Des Moines
precinct. Other witnesses show the same thing, and, indeed, it is not
denied by any one, and that they each had administered to them the
oath required by the statute of Iowa, which is as follows (Code of Iowa,
1873, sec. 620) :

When any person is so challenged, * * * and the person insists that he is quali-
fied, and the challenge is not withdrawn, one of the judges shall tender to him the fol-
lowing oath: "You do solemnly swear that you are a citizen of the United States ;
that you are a resident of this precinct ; that you are twenty-one years of age, as you
verily believe; that you have been a resident of this county sixty days, and of thi.s
State six months next preceding this election." And if he takes such oath his vote
shall be received. (Iowa Code of 1873, section 620.)

It is not to be presumed that these men would or did commit willful
perjury, and we would be compelled to so find if these votes are now ex-
cluded. And it would be equally unjust and reprehensible to say, from
the evidence, that these men did not know what they were swearing to ;
for the evidence does show that when importuned by Mr. Shumate to
go and vote, and advised by him that one day's residence was sufficient
to entitle them to vote, they knew better, and in their evidence state
their knowledge of the requirements of the law constituting a legal
voter in the State of Iowa. I, therefore, without setting out any of the ev-
idence, which, if true, reflects greatly upon the character of the contest-
ant, and would create a strong belief that his course of conduct in pro-
curing evidence was not such as a man honestly seeking facts and the
simple truth to establish it would have resorted to, but as this vote is
retained and allowed Mr. Cutts, it obviates the necessity of presenting
in report much of the evidence which otherwise would have to be set
out. It is proper to say that Mr. Cook claims that the vote of one Lu-
cius Bell, of Albia, Monroe County, be rejected, because of the evidence
of A. E. Crosby, found on page 121 of the Eecord. Mr. Crosby states
that Bell told him he had come from Kansas City two or three weeks
before election, and that he had voted. If this vote was illegal, the evi-
dence fails entirely to show for whom he voted, and we cannot take it
from Mr. Cutts any more than we can from Mr. Cook. In answer to
this: Question. "How did he vote, if you know? Answer. I do not
know ; I think he voted the Eepublican ticket." The first part of this
is a full and complete answer to the question ; his guess, as embodied in
latter part, does not prove or even tend to prove any fact ; the witness
does not pretend that he asked him what his politics were, or that he
had any means of knowing.

The evidence of Samuel F. Miller, on page 148, certainly shows beyond
much doubt, that the vote of John Walker, at Albia, in Monroe County,
was illegal and should not be counted for Mr. Cutts. The witness states

COOK VS. CUTTS. 257

that Walker told him that his (Walker's) family resided in Leavenworth.
Kansas; he told me his family was never here and that he was going
back to Leavenworth.' The witness states that Walker voted at the
Xovi'inber election ; that he saw him vote the full Republican ticket
without a scratch. Contestant also claims that the vote of one H. C.
Carson, of Keota, in Keokuk County, should be taken from Mr. Cutts.
One F. M. Gortner. whose evidence is found page 24 of the Record,
shows that Carson voted; he was challenged and took the oath. This
witness is asked for whom Carson voted, and he answered, " I think he
voted the Republican ticket. I seen a radical Republican taking him to
the polls.'' And this is the evidence upon which the vote is asked to
be deducted from Mr. Cutts. Simply because he was in company with
a Republican going to the polls, and on that fact he guesses he voted
tMe Republican ticket. It will not be claimed by auy one that this is
competent evidence, but the evidence of Mr. Warringtou, found on page
22<S. clearly shows that Carson was a legal resident of the township and
was a legal voter.

The same objections were made to one E. H. Rundell. The above
witness, on page 27 of the Record, shows that this vote was challenged
and the oath taken, and that he voted. The evidence of H. T. Willis
(page 221) and the evidence of D. McFarlaue (page 222) clearly estab-
lishes the legal residence of Rundell in Keokuk County, and a legal vo-
ter. The objections made to the vote of George C. Butcher, of Lafay-
ette Township, Keokuk County, is so well and fully answered by him-
self that we attach his answer, when a witness, as found on page 224 of
the Record, as follows:

GEORGE C. DCTCHER, of lawful age, being produced, sworn, and examined on the
part of the incumbent, deposed as follows:

Interrogatory 1. State your name, age, and place of residence. Answer. My name
is (ieore C. Dutcher; am 156 years of age ; and I reside in Keota, in the eastern pre-
cinct of Lafayette Township. Keokuk County, Iowa.

Int. '2. How long have you lived in Keota ? A. Two years, last mouth.

Int. 3. Did you vote at the general election held in Keota on the 2d day of Noveni -
ber. 1880 ? A. I did.

Int. 4. State whether or not you moved with your two daughters to Council Bluffs
in the spring of 1 -'-(> .' A. I did not.

Int. 5. Had you any intention of removing from said county at said date ? A. I
had no such intention. In May, 1880, I accepted the invitation of a married daugh-
ter to escort her and her family of children to Colorado. I went with them, intend-
ing to return to Iowa, and did so return. It was never my intention to forfeit my
citi/enship in Iowa, and I have not done so. 1 left all my personal effects in Keota,
intending to return there, and did so return.

Int. 6. Are you acquainted with Joseph Charlton, who resides in Keota ? A. I am.

Int. 7. Did you tell said Joseph Charlton, in his meat-market in Keota, prior to
the time you started for Council Bluffs, that you were going to Colorado to go into
business witli your son-in-law f A. No; I said nothing of the kind.

Cross-examination waived.

The objections to the vote of John Ranly.of Douglas Township, Appa-
uoose County, is fully and satisfactorily met by the evidence brought
out on cross-examination of the witness G. W. Taylor, found on page 78.
It appears that Ranly rented his farm in that county, reserving a room
in which he stored his goods in part, and went to Kansas in March, 1880,
and returned in September. He was a legal voter, and the evidence
fails entirelj- to show for whom he voted, but as he was a legal voter it
is immaterial.

Daniel Hegans is also challenged, on the grounds that he was not a
resident of Iowa, but his evidence, on pages 79 and 80 of the Record,
shows that he was and had been for years a citizen of Appauoose County,
Iowa, and was entitled to his vote.
H. Mis. 35 17

258 DIGEST OF ELECTION CASES.

George Probasco objected to because under age. The evidence of his
father, Noah Probasco, does not fix his age, nor is it shown for whom he
voted, and this vote cannot be taken from any one.

D. H. Elain objected for the same reason as above. His father, S. P.
Elam was the only witness to prove his age. His evidence is found on
pages 85 and 86. *He does not fix his age, and does not pretend to do-
so ; nor does any one state how D. H. Elam voted, or for whom, and we
cannot presume he voted for Mr. Cutts.

The following are said not to have been unnaturalized persons, all
of whom say they voted for Mr. Cutts. The proof is questionable at

least :

Thomas Hanson, page 13 of the Eecord.

V. Bader, page 14 of the Eecord.

C. F. Errickson, page 20 of the Record.

H. S. Hall, page 18 of the Eecord.

Thomas Hall, page 18 of the Eecord.

One O'Connor and Guernsey are questioned, but the claim is not
sustained as to them.

The following votes are challenged by Mr. Cutts, and he claims they
are illegal, and as they were counted for Mr. Cook should now be de-
ducted. We have carefully examined the evidence relating thereto,,
and find

1. That J. H. Fisher lived and resided in the township of Vermilion,
but the evidence shows he voted in Center Township. (See Eecord, p.
232.) This vote cannot be counted. Conceded by contestant.

2. L. Alfrey of the same county (Appanoose), for the same reason,
must be rejected. (See Eecord, p. 233.) Conceded.

3. The vote of Joseph Fisher lived in Vermilion Township, Appa-
noose County, and voted in Center Township. (See his own evidence,
Eecord, p. 234.) This vote must be rejected. Conceded.

4. The vote of John Roberts, of Appanoose County, is challenged for
the reason that in 1878 he left the State and remained out of the State
nearly two years. He pre-empted a homestead in Kansas, and voted
in Chawker City, Kans., in the spring of 1880. (See Eecord, p. 236.)
A residence of six months in Kansas gives a man a legal residence.
This man was single j left the State j went to Kansas; took a homestead ;
voted at the election in the State ; gained a residence : exercised the
right of a citizen ; then in August, 1880, returned to Appanoose County,
Iowa, and voted at the November election, in about three months after
his return. He was not a citizen of Iowa when he voted, and the vote
is illegal.

5. William Dines, of Appauoose County, when called as a witness,
says : I lived in Kansas before coming to Iowa over two years, and it
lacked six or eight days of being six months before the 2d of November,
1880. I voted for Cook ; J. C., I think, were his initials. (Record, p.
238.) Conceded.

This man had not gained a residence in Iowa, and his vote was un-
authorized and cannot be allowed.

6. It is conceded that Bruce S. Pearson voted in Center Township,.
Appanoose County, Iowa, at the November election, 1880, to wit, on the
2d day of November, 1880, and that he afterwards, on the same date,
voted in John's Township, in said county, and that he voted for J. C.
Cook for member of Congress at each of said places on said day. It is
also conceded that said Bruce S. Pearson was a legal voter, and entitled
to vote in Center Township. Conceded.

This being equivalent to a double vote cannot be counted.

COOK VS. CUTTS. 259

7. James Mahony was not a resident of Iowa, but was of Kansas.
Wm. Crosby, page 241, testified as follows :

Int. 5. State, if you know, for whom he voted for Eepresentative in Congress from
the sixth Congressional district of Iowa at that time and place. A. I stood within^
a few feet of him, a little to the rear and one side, and I saw him open out the ticket
which I afterwards saw him vote, and it was the Democratic ticket, similar to those
used on that day. all of which, so far as I observed them, carried the name of J. C^
Cook as a candidate for Congress from the sixth Iowa district ; and, so far as I could
observe, there were no erasures on the ticket, but was what we would call the straight
ticket throughout.

Int. 6. State at what precinct, if any, you saw him vote that ticket. A. At the
Centerville precinct, in Center Township, Appanoose County, State of Iowa.

Int. 7. State, if you know, where his residence was on the 2d of November, 1880,
and state how you know. A. A short time preceding the election, perhaps two or
three weeks, I met Mr. Mahony one evening in front of the Keystone House, in Cen-
terville, and engaged with him in conversation, in the course of which he told me
that he had been absent all summer in Kansas and the Indian Territory ; that he had
taken a claim in Kansas, and that he had returned here on a visit, and intended going;
back again, and I believe he left here shortly after the election. At all events, I have
not seen him ; at all events, I understand he has been gone since about that time.

Int. 8. State if you know whether or not he had been absent from Appanoose-
County at any time previous to the election in 1880; and, if so, about how long. A.
I had not seen him for a number of months prior to the time I met him, as I before-
stated ; I do not recollect just how long he said he had been gone, but it had covered.
a period of several mouths at least; he had just lately returned when I met him and
had this conversation with him ; at least so he stated.

Int. 9. State whether he was a man of a family or an unmarried man. A. I think
he was unmarried.

Int. 10. State, if you know, what ticket, if any, he was working for at the Novem-
ber election, 1880. A. I think he was distributing Democratic tickets, and working
for that ticket.

Cross-examination :

Int. 1. Mahouy has been around here for the last ten years, hasn't he? A. I am
unable to state just how long he has been about Centerville; but he has been here*
irregularly for four or five years at least, possibly longer, prior to 1880.

Int. 2. What is your politics ?

(Objected to as improper cross examination and immaterial.)

A. I am a Republican.

Int. 3. You have been taking a very active part in politics for the last few years in
Appauoose County, Iowa ? A. Yes, sir ; quite active.

W. O. CROSLEY.

This vote must be rejected.

X. Anderson, as shown by the evidence of A. Carlson, page 253 r
moved into Moulton [Washington] Township on the 14th day of Septem-
ber, 1880, from Elden, Iowa, and not in Appanoose County, where An-
derson voted on November 2, 1880; not being in the county sixty days
prior to election, was ineligible, and the vote cannot be counted.

9. Wm. Ellis was not a resident of the county sixty days before the
day of election, as shown by the evidence of W. T. Myers, page 254,
who says that Ellis moved into Appanoose County on the 20th day of
September, 1880, and that Ellis told him that he had come from Alter-
ton, Wayne County, Iowa; and J. E. Luse, on page 255, swears that
Ellis voted for Mr. Cook ; this vote should be rejected.

10. Sim Smith is challenged as being a non-resident of Appanoose
Comity when he voted. H. W. Edwards, page 249, testified that Smith
and his wife told him that they came from the State of Missouri, where
they had lived for several years; that Smith had only been in Appauoose
County about three months before election and left immediately after
voting and has not been heard of since. Mr. Wm. Marshall, page 252,
testifies that he was at the election, seen this Sim Smith vote at Moul-
ton, Appanoose County, and that he voted the straight Democratic
ticket. Tlfb vote was also illegal.

260 DIGEST OF ELECTION CASES.

11. James Ewart voted in Albin, Monroe County. See the evidence
of Samuel F. Miller, page 209, who says that Ewart voted a Greenback
ticket with Mr. Cook r s name on it, and Henry Miller, page 211, says
that Ewart came from Colorado and was in the county only two or three
months. It cannot be counted. Mr. Loyd testifies to same thing.

1 2. C. F. Renaud came from France and was never naturalized. Voted
for Cook. (See his own evidence, Record, pages 189 and 190.) Cannot
be counted. Conceded.

13. Charles Heyholt was born in Germany. No evidence that his
father was ever naturalized, and he as a witness states that he never
had or took out any papers. (See his own evidence, page 192.) This
vote must be rejected.

14. C. W. Thompson came to Kellogg, Jasper County, on the 14th
day of July, from New Mexico. Voted at November election the straight
Democratic ticket and then left. (See evidence of Chas. Dutro, page
185.) Was not a legal voter.

15. Henry Ohler voted in Buena Vista, Jasper County. On page 187
the following:

B. W. BLACKWOOD, of lawful age, being produced, sworn, and examined on tlie
part of the incumbent, deposed as follows :

Interrogatory 1. State your name, age, place of i esidence, and occupation. A. B.
"W. Black wood ; age, thirty-seven; residence, Bueua Vista Township, Jasper County,
Iowa ; farmer and stock-buyer.

Int. 2. What conversation, if any, did you have with Henry Ohler with reference
to his right to vote in that county at the last general election ? A. I was passing the
residence of his mother ; I halted, and a conversation came up between me and Henry
Ohler. He stated to me that he was only temporary located here, and had no inten-
tion of locating in this State or remaining in the same; that his home was in Ne-
braska, and that he intended returning there soon. He also stated that he was just
here on a visit ; that he had not been here to see his folks for ten years.

Int. 3. When was this conversation ? A. During the latter part of September or
the fore part of October, 1880.

B. W. BLACKWOOD.

This vote rejected.

16. 17. The votes of William Price and W. M. Wilkinson, who voted
at Oskaloosa, Mahaska County, are asked to be rejected for the reasons
shown in the following evidence, pages 59 and 60 :

W. F. HORAHAN, being of lawful age, produced, sworn, and examined, deposed as
follows :

Interrogatary 1. State your name, age, place of residence, and occupation. An-
swer. Name, W. F. Horahau ; age, forty-five years ; residence, Oskaloosa, Iowa ; pro-
prietor of coal mine.

Int. 2. Do you know William Price ? A. Yes, sir ; I do.

Int. 2 ["]. Where was he during last fall ? A. He commenced working for me on
the 4th day of September, 1880. He worked until about the 25th of the same month
for me.

Int. 3. When he came to you for employment where did he say he came from, and
what did he then say he had been doing ? A. He stated that he came from Illinois
directly here to this place.

Int. 4. Had you ever known him before ? A. I did ; he worked for me a short time
the winter before.

Int. 5. How long did he work for you the previous winter ; where did he come from,
and where did he go to when he quit work ? A. I think he worked for me over a
month, but when he quit work he stated that he was going to Illinois. I think he
quit work in March. I did not know where he came from.

Int. 6. Had he been a resident of this country, or had he been a new comer, when
yon first employed him ? A. I could not say ; I knew he was a coal-miner by his ac-
tions, and an old hand at the business, and a stranger to me.

Int. 7. Do you know W. M. Wilkinson; if so, when did you first know him. and
for how long a time did you know him ? A. About the middle of September, 1880, a
man by that name caine to my place asking for work, and I gave him employment.

Int. 8. Where did he say he was from directly ? A. To the best of iny recollection
he told me he came direct from Minnesota.

COOK VS. CUTTS. 261

Int. 9. Where did Wilkinson and Price board when they were working for you ?
A. They told me they were hoarding with Henry Colfleck.

(The contestant objects to each question and answer of the foregoing witness, for
the reason that the names of the persons alleged to have voted illegally are not set
our and contained in the incumbent's answers.)

W. F. HORAHAN.

These votes rejected.

18. Josiah McCoy voted at Black Oak, Mahaska County. The evi-
dence of David L. Bowman, pages 71 and 72, shows as follows :

Int. 12. Do you know Josiah McCoy ; if so, how long have you known him ? A.
Ye-, sir : I have known him for five or six years.

Int. 13. Did he vote at the last November election; if so, where? A. Yes, sir; he
voted at Leightou, Black Oak Township, Mahaska County, Iowa.

Int. 14. What are his politics? A. He told me that he, had voted the Democratic
ticket, and always expected to.

Int. 15. State what you know about his haA'ing resided out of the State at any time
prior to said election. A. I think the first time he left till the last time he came back
he was out over one year. He first went to Kansas in the fall of 1879; then came
back in the summer of 1880, and went to Indiana. I did not see him any more until
clr.-tion day.

Int. 16. Was he a married man ? A. He was.

Int. 17. Did he take his wife, his goods, and effects with him? A. Yes, sir ; all but
what he sold ; he sold most of his goods.

Also, on page 66, the evidence of one John W. Walton, as follows :

Int. 8. Did Josiah McCoy vote at Black Oak Township at that election ? A. I did
not see him vote.

Int. 9. State what you know about his having left the country, where he went to,
and how long he was gone. A. Some time during the summer of 1879 he sold off what
ett'ects he had, except his team and wagon, and went to Kansas. He came back early
in the spring of 1880. Then he went to Indiana, and staid there until a few days be-
fore the election.

Int. 10. When he went to Kansas did he take his team and family with him ? A.
He did.

Int. 11. What did he tell you, if anything, about what he had done in Kansas?
A. He said he had put m a crop of wheat and sold it.

Int. 12. State, if you know, for what purpose he went to Indiana, and with what
intent. A. From conversations with him and his friends, he went there for the pur-
pose of making it his future home.

Int. 13. What was the politics of McCoy ? A. I have always understood from him
that lie was a Democrat.*

This vote was illegal.

19. D. H. Rood uy sen was not a citizen ; he was born in Holland and
never naturalized. See the evidence of W. G. K. Muntendam, page 70
of tbe Record, to whom Rood uy sen admitted on the day of election the
above stated facts. This vote was illegal.

20. A. W. Mattox was a minor. The evidence of James Hayes, on
page 04, is as follows :

Int. 3. Are yiu acquainted with A. W. or Aaron W. Mattox ; if so, how long have
you known him ? What is his age, and where does he live, and where did he live on
the second of November last ? A. Y es, sir ; I am. I have known him from his in-
fancy, from the day he was born. He was (21) twenty-one years old in this last
March (March, 1881). He is now working for a man by the name of Artemns Flan-
ders, in Des Moines Township. On the second day of November last (the day of
election) he was living with his brother, A. J. Mattox, in Jefferson Township. He
went to the polls with his brother, and his father also was in the crowd.

Int. 4. How do you know his age ? A. Well, one thing makes me remember his age
is that this Aaron W. Mattox and one of Henry Emland's girls are of nearly the same
aiM-. They were both of them born the same week. My wife, as it is now, worked for
Mrs. Emlaud when this girl was born, and I was living with Samuel Coney, about
two and one-half miles from there, at that time, and was intimately acquainted with
the family at that time, and was frequently there. I was married in August, I860,
following the birth of this Aaron W. Mattox.

Int. 5. State what month and year he was born. A. He was born in March, 1860.

262 DIGEST OF ELECTION CASES.

Int. 6. Have you had any conversation with his father or brothers since the elec-
tion about his age ; if so, what did they say ? A. I have with two of his brothers,
not with his father. They both said he was not twenty-one years old when he voted.
But they said they thought he had done nothing wrong, from the fact that the board
did not challenge his vote when he voted.

Int. 7. Who fixed his ticket for him when he voted? A. Andrew J. Wharton did.

Int! 8. What kind of tickets were they f A. Democratic tickets.

Int. 9. What was the politics of A. J. Whartou ? A. Democratic.

Int. 10. What was the politics of his father, C. Mattox, and of the brothers ? A.
Democratic.

Int. 11. Do you know John McCormick? A. Yes, sir.

Int. 12. How long have you kno\vu him ? A. Six years.

Int. 13. When did he g'o to Nebraska or Kansas ; how long did he remain, and
about what time did he get back to Mahaska County ? A. He went in the fall of
1879, and came back only a few days before the election in 1880.

Int. 14. Did he take his family with him? A. He did.

Int. 15. What do you kuow about his having bought or rented a farm in Kansas or
Nebraska, and having raised a crop, while he was gone ? A. I have understood that
he bought a farm in Kansas and raised a crop on the same.

Int. 16. Did he vote at the last November election ? A. He told me himself he voted
as I was going to the polls.

Int. 17. What are his politics ? A, His political doctrine and views are Democratic.

Cross-examination :

Int. 19. Where was said Mattox born ? A. In Jefferson Township.

Int. 20. Do you remember the time of his birth, or is your statement as to his
birth based wholly or in part upon the statement of your wife as to the time ? A.
It is based upon my own recollection.

This vote is conceded and is rejected, as the mail was a minor.

21. A. Craven, according to the evidence of Ezekial Ferris (pages 54
and 55), left the State of Iowa, a single man, about July, 1879, and came
back about September, 1880; voted the Democratic ticket ; during this
time he was in Missouri and Nebraska; lost his residence, and was not
a legal voter.

22. A. Bullman : By his own evidence, on page 266, it is shown that
he voted for Mr. Cook ; that in March, 1878, he left Iowa and went to
Coffeyville, Kans. ; remained there until he gained a residence ; com-
menced a suit in the court of Kansas for divorce and obtained a decree;
married in that town in 1880, and came back to Iowa in June, 1880. It
is immaterial what his intentions were ; the fact remains that he gained
a residence in Kansas, and the laws of that State require a residence
of six months before a man can sue for divorce. (See statutes of Kan-
sas, sec. 3872.)

J. W. Shelley refused to take the oath required by statute. The evi-
dence of Josiah Stark, page 293, states that Shelley lived nearly every-
where; also the evidence of his father, B. M. Shelly, page 296. This
voter refused to take the oath prescribed by statute, as he would not
swear that he had been in the county sixt\ days, and that part was
omitted and his vote received. 3To one can doubt the illegality of this
action on part of the judges. This vote rejected.

It will be seen that in the conclusions reached that the balance of il-
legalvotes as found is in favor of the incumbent to the number of twenty,
and this leaves the majority for him as found to be fifteen votes at least.

The following resolution is recommended :

Resolved, That Marceuus E. Cutts was duly elected as Representative
from the sixth Iowa Congressional district to the Forty-seventh Con-
gress, and is entitled to the seat accordingly.

Mr. KANNEY, in the case of Cook m. Cutts, makes the following re-
port :

COOK VS. CUTTS. 263

I concur iu the conclusion reached in the minority report made by
Mr. Thompson that the coutestee should be declared entitled to retain
his seat ; but I prefer to report the case as it presents itself to my
mind.

The case may be properly stripped of much of its detail. It is well,
however, to state briefly what is thus summarily disposed of.

I allow for the contestant the two votes cast for " John Cook," the
five cast for " Cook, r disallow the vote cast for " C. Cooper," count the
ninety-two net majority in the votes of Cedar and Franklin Townships,
which were rejected in the canvass because of alleged defective re-
turns.

I allow for the contestee the two votes cast for " Cutts." Also, one
vote which got into the wrong box in Washington Township, and was
rejected. If not counted, thirty votes cast and counted for contestant
should be disallowed for same reason. (Record, p. 213-14-16-19.)

I take the certificate of return made iu the canvass of the votes in
Madison Township, in Mahaska County, disallowing the vote claimed by
the contestant. It is sworn by one witness that on one ballot the name
of * M. E. Cutts" was erased, and u John C. Cook" written thereon " op-
posite the head of the State ticket." We have not got before us the
original ballot or a copy of the same for construction. The officers of
election did have the original, and construed the same by personal in-
spection. It is impossible to determine from any evidence before us for
what office the name " John C. Cook" was designed.

I allow the official count in Jasper County and Appanoose County
to stand in the two instances where there was a discrepancy between
the certificate of return and the tally book of five votes in one case and
of two iu another. It may possibly be true that there was a mistake in
the count in the case of the five votes ; but on the one side we have only
the canvass and return as made and the tally-list. Taken alone, I think
the return is higher evidence than the tally-list. But the evidence of
the manager is that the vote was as returned, although he does not tes-
tify specifically as to how he knows, or where he gets the figures which
lie swears to. How the discrepancy occurred is not explained by any
evidence aliunde, unless by the fact that by the usual course pursued in
counting the ballots all are first counted and the tally-list thus made.
Tl^e divisions of five in the tally-list may not have been made so as to
conform to the aggregate vote. It is, therefore, left mostly to conject-
ure as to what the explanation is, and I take the return, supported
faintly as it is by the manager. As to the other discrepancy it is ex-
plained, and the oral evidence is such as not to disturb the official count
when used to explain the alleged discrepancy.

This leaves contestee with a majority of ten. to this point.

II.

I now come to the issues seriously in dispute.

There are claims and counter-claims preferred by the respective par-
ties relating to scattered individual votes, independently of the colored
vote from the mines. Contestant concedes eight illegal votes as cast
for himself in this class, and claims to have proved seven as cast for
coutestee (second brief, p. 19).

In case of five of the latter class, Hanson (13), Kader (14), Erickson (20)j

264 DIGEST OF ELECTION CASES.

two Halls (18), we have only their own evidence respectively to prove
the facts. The claim is they were not naturalized. One of them proves
it, if at all, by stating what his father said about his having been natu-
ralized. It is hearsay and not competent. The presumption of law is
that they were naturalized, as they voted. I do not deem it wise or
safe to rely on the evidence of the voter alone in these instances to
prove the contrary. He is presumed to kiiow the law, and is alleging
his own turpitude when, if true, he calls upon us without adequate proof
of an innocent mistake to believe that he violated the law and voted
illegally, and one of them after being challenged. I can place little re-
liance on what he now says to stultify or convict himself of an offense.
I cannot omit to call the attention of the House to the evidence ad-
duced to show that contestant was engaged in manipulating witnesses
in his own behalf by the use and promise of money ; will not express
an opinion on that point, but only refer to the record for others to judge,
as, if true, it serves to destroy or seriously impair confidence in evidence
which he adduces. (Record, pp. 620, 590, 637, 588, 618, 602, 590, 532,
533.) Coutestee makes great reliance on this in his brief.

O'Connor (93, 94, 108) is attempted to be proved of an unsound mind
when he voted. The evidence adduced does not come from experts,
and is for this reason and otherwise incompetent or insufficient. The
letters of guardianship were issued in May, 1875. The presumption of
law must prevail here as against this evidence irrespective of a ques-
tion of law. Besides, R. P. Bolles (p. 58) testifies that he (a lawyer) and
Mr. Havens were the witnesses who got O'Connor naturalized in Octo-
ber, 1880, Judge Blaucbard administering the oath. The witnesses
were Greenbackers in politics. This would hardly be done if O'Connor
was an imbecile or of unsound mind, as pretended now. They probably
got it done so he might vote their ticket, and because he voted the other
way they now deem him incompetent to vote !

I). R. Guernsey, the seventh (Record, 74, 75, 76, 84), is claimed not to
have his home in John's Township, where he voted for Cutts. His was
the only evidence, and he swears to his home being in John's Town-
ship. Claim of contestant disallowed.

If anything more is needed to dispose of the first five it will be seen
that in case of Hanson part of the requisite evidence consists of an
alleged statement of his father, which is not competent. There being
a declaration of intention there was a record in court, and the same
should have been put in evidence by copy as the best evidence. Same
is true of Rader.

The majority report errs when it says coutestee concedes seven
illegal votes as cast for him. He does not concede it only as proved
"by evidence more or less direct and satisfactory." (Brief, p. 26.) To me
it is less than satisfactory. He does not admit that they should be
deducted, but says u if they should be." &c. It is not in the power
of coutestee to give away the rights of the public and allow another
man to take the seat even by consent, to the detriment of the public
and the Treasury. Whereas contestant alone is interested in the result
now, and that only from personal pride and pecuniarily, and I should
give more heed to his concession as affecting his claim made in the
contest if there was occasion for it.

The eight votes cast for himself illegally, as conceded by contestant,
I reject as proved also. The evidence satisfies me that the illegal votes
cast for contestant exceed eight in number, and that ten at least are
satisfactorily proved, leaving a balance of ten in favor of the contestee
on this miscellaneous class. Those named by contestant and conceded

COOK VS CUTTS. 265

are the two Fishers, Alfrey, Pierson, Dines, Renaud, and Mattox. I add
William Ellis (p. 254), Shelly (pp. 293, 258, 265, 261), and Roberts (p.
236). Shelly was challenged and allowed to vote wrong-fully, and is not
now shown to have been an elector.

Mr. Thompson has gone over them and comes to the conclusion that
there is a balance of fourteen votes in favor of the contestee, and hi
report furnishes ample means of getting at the evidence so as to verify
or refute his conclusions. I disallow the claim as to the vote of John
W. Walker, which he allows, and find it should be counted for the cou-
testee, deeming the evidence relied upon by contestant in respect to-
that as incompetent and insufficient. My conclusion upon present
views is that there is a balance of ten votes in these claims and counter-
claims in favor of the contestee. As much doubt is thrown on twenty
as there is on sixteen of the colored vote hereinafter considered.

III.

I now come to the issues presented which constitute the chief field
of contention.

1. As to the Albia mine, I find that the evidence establishes no claim
which should be allowed in favor of the contestant, unless it be the votes-
of Lucius Bell and John Walker. As to those votes the evidence is not
competent, and contestant in his brief, p. 5, so concedes. The same
class of evidence will support several more of the individual claims made
by contestee, alluded to, than I have allowed above, and if competent
they should be allowed him. The majority report adopts a rule of evi-
dence in one case different frqpi what it does in the other. I reject the
two said votes, and follow the same rule of evidence in other cases.

2. As to the voters from the Munchichinock Mine :

The claim is that the following names appear on the poll-list, and that
they belong to and represent persons who voted for contestee, but who
went to Iowa either on May 15, 1880, or later :

Bes Moines Township

Jesse Carroll is No . . 31

.. 46

.. 47

.. 48

. . 184

. 185-

Earnest V. Linsey (see Rec., 99).
James S. Martin (see Rec., 99)..
George W. Lewis (see Rec., 99).
Heury Lewis (see Rec., 99)

Charles Garrison (see Rec., 99) -

(Rec., 98 aud 100, &c.)

In Harrison Township

Nelson Woodford is No . . 214

8aui Winbush " " .. 21&

Randolph Willis " " .. 232

Linda Robinson " " .. 235>

William Garland 247

John Burks 255

Sam Moppin 258

John Clark 320

Josiah James 322"

James Byers 323-

Win. H. Hues 325

Spencer James 328

John W. Jackson .' 329

James Usher 333

Andrew Lewis 334

D. F. Woodard 335-

G. W. Randall.. .. 336

266 DIGEST OF ELECTION CASES.

They amount to twenty-three in number. It is claimed that they were
all illegal, there not being one of the requisite qualifications of a resi-
dence of six months in the State prior to the day of election.

This presents a question of fact purely to be determined under rules of
law and upon the evidence adduced. I find that, on clear and virtually
uncoutested evidence, this number of twenty-three should be reduced
at the outset to eighteen.

The name of " Josiah James" appears on the poll-list. This is said
to be Joseph H. James. A man of that name is examined (Rec., pp.
618, 625), and said to be the one, and he swears most positively that he
did not vote at all. No one proves that he did vote. His name is not
on the poll-lists, unless Josiah James applies to him, and it cannot be
said that he and Josiah James are the same person from correspondence
of names. Even Foster (Rec., 368), who was present, won't swear that
he voted.

Contestant himself admits what is true, that Major Shumate does not
state when Woodford, Burke, and Woodard went to Iowa (Brief, p. 7 ).

I find no other evidence which does prove or tend to prove when they
-went, or that they went after May 2. Indeed, as to Woodford, Major
Shumate swears in effect that he (Nelson Woodford) sent back money
to Virginia when he went back for the third party (Rec., 401).

As to William Garland, Page Irwin says there were two persons by
that name, and this is not contradicted. Hence it cannot be found
which one Major Shumate refers to in his evidence, or which one voted
<Rec., p. 565).

Page Irwin swears (Rec., p. 565) that Randolph Willis came to Iowa
before April 4, 1880; was there before himself, and he came on that
date. m

Major Shumate only testifies as to Willis that he did not come in
either of the first three parties, without stating or showing that he
knows when he did come.

I therefore lay out of the claim five names from the alleged twenty-
three as cases where the evidence requires it.

If Hardin White is intended to be included, instead of Nelson Wood-
ford, it will not change the result.

The remaining eighteen must be divided into two classes : Seven names
are claimed to apply to persons alleged to have come in the lot which ar-
rived May 15, 1880. These seven are Jesse N. Carroll, Charles Garrison,
Oeo. W. Lewis, Henry Lewis, Samuel Moppiu, James S. Martin, and
Linda Robinson. All the rest are claimed to have come after May 15,
1880. Before going further, however, I desire to lay down and premise
the rule which should govern the consideration to be given to the evi-
dence. It is the rule which prevails in all election cases, that all votes
cast are presumed to be legal. That presumption is fortified and rein-
forced in the present case by the uucontested proof, that all of the
colored voters were challenged at the polls, and each one took the oath
and swore, after due warning and openly, that he had resided in Jowa six
mouths before the election. Contestant must overthrow this presump-
tion, thus reinforced and fortified, and this by evidence which is com-
petent, credible, and sufficient in quality and quantity to produce con-
viction. It is not enough to mix the thing up or to create a doubt about
the right of the parties in question to vote. The evidence should be
such as to show a certainty, as in fact it is necessary to prove what
would be sufficient to convict some eighteen different men of very reck-
less swearing tantamount to direct perjury. Evidence which does this
should be above suspicion and free from doubt. Members are not to be

COOK VS. CUTTS. 267

deprived of their seats at this late day of the term and new ones ad-
mitted on the testimony of one man, at least when his evidence is dubi-
ous and much shaken. I will consider the classes separately.

IV.

As to the first class, it must be conceded that upon the preponder-
ance of proof there was a company of negroes which arrived in Iowa on
the loth day of May. 1880, composed of a few men, not over ten in num-
ber, and probably not more than six or eight, and the rest being' women
and children, largely the families of those who had gone before. If the
result depended upon that fact I should not deem it necessary to ex-
press any dissenting views.

The preponderance of the evidence also seems to prove that persons
bearing the names given in the said first class, all save Samuel Moppiu,
came in some company which arrived in May, either the 1st day or the
15th day. The only evidence I find as to him comes from Maj. Thomas
Shumate (Rec., p. 325), who says: " He came with the third party (May
15), is my recollection; either that or the fourth party; am not sure which."

If he is assumed to be the person whose name appears on the poll-
list as " Samuel Mappine" (Rec., p. 106, No. 258), I think the claim, as
to him at least, is not established. I do not credit the statement of the
witness, indefinite and uncertain as it is, for reasons hereafter given
under the other head. Besides this, there is not sufficient evidence to
show the identity of "Samuel Mappiue," as written on the poll-list, and
" Samuel Moppiu," as named to the witness, with nothing else to con-
nect them, especially as the negroes were shown, many of them, to have
several different names. Neither is there any evidence as to how the
man giving that name voted, unless we assume that all the colored men
voted for contestee, which is not allowable. It appears that there were
some of them (twelve or fifteen, more or less) Greeubackers. (Jones, p.
557-8; Irwiu, p. 566.)

As to the other six, the question is whether they came May 1, as con -
testee's evidence tends to prove, or May 15, as contestant contends. It
is not necessary to determine this, as the result in my view does not
depend on it. But as so much stress is laid on it by the majority, as
though it did, I will state how it stands and leave it there.

Four of the number, viz, George W. Lewis, Henry Lewis, Jesse Oar-
roll, and James Martin, swear with great positiveness that they arrived
May 1, 1880 (Rec., 631, 600, 609).

Paige Irwiu, Taylor Jefferson, William T. Howard, Andrew Turner,
"William Southall, G. S. Caul, David J. Campbell, and others swear to
the same, and all fix the dates by other facts, and feel perfectly cer-
tain. These men are not charged with illegal voting, and are disinter-
ested (Rec., pp. 615, 565, 652, 654, 646 639, 626.)

Now, it is said that all these men are mistaken and even perjured.
The date of arrival of the so called third lot was originally fixed by
Major Shumate as near the last of May. He fixed it by the fact, which
he swore to, that he gathered the crowd when the Stauntou court was
in session, which met the third Monday of May, and that the next prior
crowd was the last of April (Record, 322-3) ; that it took three weeks to
gather up and get the crowd together in Virginia, and about four days'
travel by rail between Virginia and Iowa. He subsequently finds, as
he says, a letter which fixed the date of his arrival in Iowa on May 15.
(Record, p. 392.) A railroad conductor swears to taking a company (of
colored women and children mostly) May 15, identifying the number of

268 DIGEST OF ELECTION CASES.

the car by a return of his. If the letter is genuine, and the return of
the conductor is reliable, this is potent evidence to fix the fact that a
company did arrive May 15. It is. to be observed that the genuineness
of the letter depends wholly upon the evidence of Major Shumate.
The railroad return contains nothing but a date and the number or
description of a railroad coach used on May 15. Other agents and the
conductor supply only that there was in it negroes consisting mostly of
women and children (Kec., p. 433-4).

There is a serious conflict of testimony, unless there was another lot
of colored persons between April 4, 1880, and May 15. There is no
positive testimony that there was. But that alone would serve to rec-
oncile much of the conflicting evidence. It may be safer to infer as
probable that there was another than to find that twenty-three men
swore falsely when they took the oath at the polls after full warning,
that they had been residing in Iowa siz months, and that four of them
repeated that falsehood when testifying in this case, and that Page
Irwin, Taylor Jeifersou, William T. Howard, Andrew Turner, William
Southal, G. S. Carl, and David J. Campbell, disinterested persons, having
the means of knowing and good reasons to note the event (as they say
they did), also swear falsely, or are mistaken.

The pay-roll for May, 1880, shows that Mary Irvin, Julia Bess, Annie
Carter, Grace Maupiu. Mary Bates, Minnie Garrison, and Mary Kobiu-
sou, all of whom confessedly came with what is called the May crowd,
worked and were paid and allowed for twenty-four days' work in May, and
this is entirely inconsistent with the alleged coming on May 15. Some
one, not known, has written a memorandum in pencil against their
names, that this is an error. Was not so printed in the record, and the
inference is that some one since then has inadvertently made this pencil
memorandum by way of comment on the margin. The original entries
are too formal and too particular to raise any probability of error origi-
nally, and if the pay-roll is evidence and reliable, it seems to be very
significant as entirely inconsistent with the claim that the crowd in
which these persons came arrived as late as the fifteenth day of May.

The pay-roll for April is not produced and is not before the com-
mittee. If it were it is possible that Hie mystery might be cle-ared up.
It is true that some of the names of the persons in question appear on
the May pay-roll. The days 1 work do not appear save in one instance.
Tbe men are allowed job or piece work only. But the evidence is
(Kec., p. 113-9) that the pay-rolls did not contain all the names or all
the work done. Men worked outside of the mines, and some worked
for other parties than the company. Witnesses swear to remaining
some time without work and to being engaged in other things. Up to
what day the pay-rolls run or were made up don't appear satisfactorily
(Rec., p. 113-9). Strictly speaking the pay-rolls are not competent evi-
dence.

There is another significant fact. It appears that Major Shumate was
in Iowa till the 4th or 5th of May. Dr. Witherill swears to meeting him
on the 4th or 5th, when he said he was going to Virginia for more men.
He himself swears that he left the 3d day of May. Allowing that he
got to Virginia the 6th and started back the 12th^ this would give him
but six days, one of them Sunday, in which to gather and get aboard
the train a company of negroes, women and children, whereas he had
sworn before that it took three weeks to do it. There had been an interval
of about six weeks between what he calls the second lot and the May
crowd, to wit, from April 3 to May 15. During that period there hail
been time for an intervening company. He has put in what purport to

COOK VS CUTTS. 269

be the letters which he wrote to his wife from Iowa, in April, and the
last one, as per the wrapper, was mailed the 17th of April. This would
give him thirteen days to go and get an intervening lot, more than he
says he took for the May crowd, as called by him. He speaks of having
a letter of April 26, but it was not shown or put in evidence, and that
date as printed must be an error, as he don't annex letter or cover.
He for some reason withholds and does not show the letters writ-
ten after April 4, saying they relate to private matters. Had he shown
them, so as to make that fact manifest, it would have been more sat-
isfactory. He had sworn that the interval between the second and
the third lot was the shortest of them all, and to being in Virginia when
the court was in session, as that was a good time to collect negroes. He
may be right about this, after all, and the third Monday of April may
have been the term of the court which he had in mind. Even after he
had found the letter of his wife, he was not willing to admit and say
positively that he was mistaken about what he had said in relation to
being at Stauuton one of the times when the court sat (Rec., p. 402).
There seemed to be lingering in his mind even then an impression that
he was there at court time. April was the only mouth in which it could
have been so if at all. If this was so the fact would reconcile the evi-
dence on this 2 )f) i n t largely-

It is clear that all who went May 15 were mostly women and children
(Rec., pp. 436-40).

It may be that there was a delay in getting so many women and chil-
dren, and that the men and some of the women and children went on
before in an earlier train.

Nothing else as an assumption will relieve Major Shumate from his
pretense that he could start from Iowa May 4, go and return by May 15.

E. D. Young (Rec., 437), who had charge of the conductors, says :

Int. 4. Did a freight train, with a passenger coach attached containing colored peo-
ple, run from Marshalltown south on the 1st day of May, 1880 f

(Objected to. the .same as to interrogatory 2.)

A. I could not say ; I am almost positive there was not.

Int. 5. Do you recollect of a lot of colored people being carried on a freight train,
with passenger coach attached, some time in May, 1880 ?

(Objected to, the same as to interrogatory 2.)

A. I do.

Int. b'. Will you please state what date that was, and whether it was the 1st day
of May, 1880, or later.

(Objected to, the same as to interrogatory 2.)

A. We might have had two lots of colored people in. The one that I remember of
was about the middle of May.

Int. 7. Do you recollect of any going south from Marshalltown on the 1st day of
May. 1880!

(Objected to, the same as to interrogatory 2.)

A Xo ; I do not.

Int. 8. What proportion of the crowd that you remember as going down about the
middle of May was composed of women f

(Objected to, the same as to interrogatory 2.)

A. I have no means of knowing.

The long interval, from Xpril 3 to May 15, between those two lots is
best explained by this supposition. If the May lot was divided that
serves to explain why the draft drawn by Shumate, on May 12, 1880,
was only 64CO, when the fare for sixty persons at $12 each (the price
sworn to) would be $720. Otherwise this fact is unexplained.

All that can be said is that there is too much doubt as to what should
be called the May crowd, whether it was on or just before May 1, or
May !.">, or whether there was one on both days. I have a right to
assume any reasonable hypothesis which will harmonize the evidence,
and it is probable there were two lots in May.

270 DIGEST OF ELECTION CASES,

Much stress is attempted to be laid on the fact that some of the
witnesses speak of the "May crowd." The word is rather assumed
by the questioner, and became a sort of designating term generally.
The witnesses of contestee speak of one crowd and those of contest-
ant another when the "May crowd" is spoken of.

It is true that Mr. Foster and his wife, colored, swear that the May
crowd came May 15, and that she came in the latter. She first swears
in the Record (p. 507) that she left March 11. The examiner goes on
and assumes that she said May 15, and she then adopts that. Mr.
Foster admitted that he was to have $200 from Mr. Cook, and he was-
evidently swearing under a belief that that was so. His wife comes up
to join and help him. Shall they be believed while the evidence of all
the other colored people is scouted as untrue and perjured? It seems-
with some people to make a difference on which side colored witnesses
swear, whether they are considered credible or not.

William Howard says he and George Lewis, Henry Lewis, James Mar-
tin, Jesse Carroll, Charles Garrison, and James Carey were of the May
crowd. (Rec., 589.)

Jones says, " George W. Lewis and Jesse Carroll came in the May
party; don't remember the others." (Rec., 559, middle.)

James Martin himself says, "I came in the May crowd" (Rec., 509 r
int. 9), and that George W. Lewis and Carroll were in the same crowd j
don't remember the names of the others. (Rec., 609.)

George W. Lewis himself says, "1 came in the May crowd, as it is
commonly called," and remembers William Howard, Henry Lewis, and
Linza Robinson. (Rec., 631-^, ints. 3 and 26.)

Andrew Turner also says he came in May crowd. (Rec., 653.)

This may be all so, and yet the "May crowd" referred to be that
which arrived May 1. The contestant is ready to take the facts as
sworn to by coutestee's witnesses when they say "May crowd," because
he likes that much. Yet he rejects all the rest if that don't suit him,
and says it is perjured testimony.

It is not necessary to examine the evidence as to how the persons
named voted. Four of them have declined to answer, as they had a
right to do, and as did others, the legality of whose votes was -not in
question. No inference is to be made against their truthfulness on that
account. All the colored men exercised their legal privilege only in de-
clining to answer. Circumstantial evidence is competent to prove how
they voted. It is quite probable that most of the colored persons voted
the Republican ticket, but we cannot assume that from the single fact of
color. There were some Greenback ers among them. It is not definitely
proved for whom all of them, in fact, voted. The circumstantial evi-
dence is quite strong. The only difficulty is, it don't reach the particu-
lar individuals in question to any great extent.

I proceed to the second class of alleged illegal voters named. What
is the evidence adduced ? Is it credible '? Is it reliable ? Is it definite
and certain? Is it plenary in quantity and quality, so as to work and
produce conviction and establish the claim predicated, as against the
strong presumptions existing, and the oaths of the electors at tl^e polls ?

It all comes from one witness (Shumate).

There are no pay-rolls which relate to them, and in evidence. The
roster furnishes no competent evidence, at least none of the slightest
weight. Major Shumate referred to it in his cross-examination, and is.

COOK VS. CUTTS. 271

compelled to confess that he cannot fix by it the dates when the men*
came, unless it be by association. Be was the only witness produced
whose memory could be aided by the roster, and who knew anything;
about it, and he has not imdertaken to do what is required by associa-
tion even. Mr. Thompson has demonstrated what is otherwise appar-
ent, that the roster shows nothing which can be relied upon to settle-
the question in dispute. If it does I do not regard it as competent evi-
dence. Not being kept by the witness it could not legitimately serve
to refresh his recollection even.

If there is any evidence, therefore, on this second class except that
of Major Shumate, I have been unable to find it. No one has pointed
it out either in argument or the briefs. The majority report refers to
none. Shall Major Shumate be believed, and has his evidence weight
enough to overcome the said presumptions! We must take him as he
appears on the record evidence.

Assertions and counter assertions and denials are easj'. I will go into
details, and give reasons for my conclusions. Before doing that, how-
ever, I will divert and make some general observations, which may as.
well come in here as anywhere. *

It is not the fault of the House or the Election Committee that
the determination of the case has been delayed so long. Contest-
ant's case was not ready to be heard when this Congress met. The
record then showed no case, and he applied and got leave to take
more evidence, and that was not taken till very late last summer, so
that the case could not be taken up and considered until the present
session. The record evidence is voluminous, conflicting, complicated,
and difficult of solution, and no conclusion has been reached until now.
Contestant is claimed, upon the contention of the contestee (with some
plausibility, at least, I must confess), to have obtained leave to take fur-
therevideuce. upon groundsstated in affidavits, which prove to have been
rather questionable. And the committee granted leave in this case iuthe
exercise of a liberality which was not practiced in two other cases where
a similar application was made. But I do not propose to pass upon
these points, preferring to pass over the personal attacks which have
been made with some acrimony by each party upon the other. On the
one side there is a charge of making false affidavits to get further time,
and some evidence offered as to the corrupt use of money in obtaining
testimony ; and on the other, a charge of sharp practice, and even of
virtual stealing, in getting possession of and withholding the roster
already alluded to. Xot considering the parties to be on trial, I have
endeavored to dismiss these charges from my mind, except so far as
they necessarily affect, as they do somewhat, the other evidence in the
case. Had the roster not been ultimately produced, as was promised
by contestee early, it would have been subject to all reasonable infer-
ences adverse to the contestee. But it was produced as promised, and
then contestant declined to take and put it in evidence on the record.
He seemed to want it very much, if he could not get it, and dealt in
severe accusations because he was denied it at once, although it was
incompetent evidence in and of itself if produced. When it was pro-
duced he did not seem to want it, and did not use it. It was said to be
desired to aid Major Shumate in refreshing his recollection in order to
fix and determine dates and the lot of negroes in which the persons in
dispute went to Iowa. Contestee says he distrusted the witness knew
that the roster, not being kept by him, was not competent either to
refresh his recollection or otherwise ; and he did not mean to let him.

272 DIGEST OF ELECTION CASES.

have it in the first place to aid him in constructing a false story, and
promised to produce it after contestant's evidence was in, and did do so.

After witness had testified for contestant the roster was shown him,
and all needed help by it furnished, but he was constrained to admit
that the roster did not do what he supposed it did, and that he could
only use it to fix things by argument or association based upon it. It
was of so little use in this regard, as it proved, that the matter was
dropped by the witness and contestant, although the question of time
was waived by contestee. The contest in regard to the roster was re-
opened in the argument before the committee, but was cut short upon
suggestion made that possibly there was no objection to its being put
in evidence then, and thereupon coutestee said he did not object to it,
but consented that it might be so far as competent evidence, and it was
put in evidence subject to that objection alone. This is all that needs
to be said on that point.

What is Major Shumate's evidence in its fall length and breadth, as
bearing upon the identity and residences of the voters in question in
the second class named ? I give it in the language of the record :

1. lot. Can you tell me from memory whether James Usher came info the State be-
fore or after May, 1880? A. James Usher did not come either with the first, second,
or even third lot ; he came with the fourth party.

2. Int. How about James Byers ? A. He did not come with the first, second, third,
or fourth party ; he came with the fifth party.

3. Int. How about John Clark ? A. John Clark did not come with the first, second,
or third party.

Int. How about Jesse X. Carroll? A. I am not sure whether Je.-sr came with
the second or third party ; my impression is he came with the third party.

4. Int. How about William Garland? A. He did not come in either first, second,
or third party ; he came in the fourth party.

Int. How about Brooks Harris ? A He came in the first party.

Int. How about Charles Garrison? A. I am not sure whether he came in the third
or fourth party ; my impression is he came in the fourth party. \

Int. Are you certain he came in neither the first nor second party .' A. Yes, sir ; I
know that.

5. Int. How about William H. Hues? A. He came there with the fifth or sixth
party ; he is a man that I have known all my life, nearly.

6. Int. How about Spencer James ? A. Spencer James came with the fourth or
fifth party; he is a man that has worked for rue, on and off, for several years in Vir-
ginia.

Int. When did John W. Jackson come to Iowa? A. One Johnny Jackson I don't
know about the W. being in his name he is the only John Jackson I know of: he
was one of the colored men ; he came with Usher in the fourth party in July, 18tiO.

Int. How about Jasper Kinuey ? A. He came in the second party.

Int. How about Christopher Lewis? A. He came in the second party.

Int. How abont Andrew Lewis? A. Andrew Lewis did not come in any of the
three first parties ; he came to the mines in October, 1880.

Int. How about Ernest Z. Linsey? A. Charles Linsey came in second party:
Ernest Linsey came in fourth party.

Int. How about George N. Lewis and Henry Lewis? A. I now remember that
Charles Garrison and the two Lewises, George W. and Henry, came in the third party
in May.

Int. When did Samuel Moppin come ? A. He came with third party, is my recol-
lection; either that or the fourth party ; am not sure which.

Int. When did James S. Martin come? A. He came with third party.

Int. When did Annias Randolph come ? A. He came with first party.

Int. When did Linza Robinson come? A. He came with third party, is my recol-
lection.

Int. When did G. W. Randel come? A. I am not positive when he came, whether
with third or fourth party; he did not come with the third: it must have be-n lan-r.

Int. When did Edward Willis come? A. He came in 1881. Sam. Willis came with
second party.

Int. How about Hardin White? A. He did not come with the first, second, or third
parties; he must have come later.

Int. How about Sam. Wiubush ? A. He did not come with either of the first three
parties.

COOK VS. CUTTS. 273

Int. How about Randolph Willis? A. He did not come with either of the first
three partiesf (Kec., p. 422-3.)

When recalled at a later date, the following further questions are put
and answered (Rec., p. 394-5) :

Int. The other day in testifying yon were not quite sure in regard to Jesse N. Car-
roll, but thought he came with the third party. What do you now remember as to
that ? A. My recollection is that he did come with the third party, from circumstances.

Int. Is there any other person that you now remember as arriving differently from
what you then stated? A. I can't say; I think I then stated that I was not positive
which trip Samuel Moppin came out in ; I recollect now that he came in the third
party.

Int. When did the fourth party arrive ? A. The night of the 1st or the morning of
the 2d of July, 1880.

Int. When did Joseph James arrive? A. I brought a party in September and one
in October, 1880, and mv impression is he came in September ; either that or October^

Int. When did John W. Jackson arrive ? A. He came in the July party, 1880.
Int. How old was he in 1880? A. I can't say.

As I do not feel convinced by this evidence either that the witness
remembered what he testified to, or that it was possible for him to re-
nieinber what he assumes to do, or that this furnishes adequate proof
of the claims set up by contestant, as against the presumptions and the
counter evidence already adverted to, a minute statement of reasons
may be proper, in the shape of statement and argument.
In the first place generally it is to be observed and noted :
1. The interrogator took specific names from the poll-lists of two vot-
ing precincts, and gave the name as there found to the witness in each
question. The mode adopted was suggestive and leading, and detracts
very much from the value of the evidence. The votes cast by colored
men in one township was 43, and in the other about 60, making in round
numbers about 100. The notice of contest embraced all the colored men
by name found on the poll-list in each township, as a blanket charge of
illegality applied to all alike, 3$ow, if the interrogator had handed
the witness a list of those names, and asked him and had him state
whether he could remember colored persons who came from Virginia
and who bore those names, or any of them, and, if so, specify what
ones and when or in what lots they came, and say how he was able to
remember them, giving his particular reasons therefor, if he had any;
or if he had been asked the more general question embracing all the
men contained in the six several lots, and he had answered with any
reliable certainty, and made it apppear reasonable that he could re-
member, and did remember, both the names and the persons to whom
they applied, his evidence would have been of more worth. Instead of
that course of proceeding the contestant picked out the names he
wanted to use, gave each one specifically to the witness in a single
question, without asking generally if he knew him and remembered any-
thing, and, if anything, what, about him. He asked him substantially
only when he came to Iowa. Under the facts aud circumstances ap-
pearing, and hereinafter adverted to, no one can be satisfied, from the
way in which the questions are put and answered, that the witness
knew the persons referred to, or had much, if any, acquaintance with
them, or could apply the names to particular persons clearly called to
mind, or had any reason why he could single out a few persons from
the hundreds who voted, or from the several hundreds say 300
colored men whom he had brought from Virginia in six separate and
distinct lots, with an interval of a month or thereabouts between them,
aud that about two years before the time when he testified by an un.
H. Mis. 35 18

274 DIGEST OF ELECTION CASES.

aided memory. For aught that appears, he was answering after being
" coached," as the lawyers say, and upon information and belief formed
from sources other than from memory and personal knowledge. Not
being able to get the roster for "association" he may have found other-
wise a convenient memory for the contestant, with ill-feeling caused by
the non-production of the roster. Under such circumstances an unscru-
pulous or angered witness might be likely to take his dates and names,
&c., from others, if they were not in his memory.

2. Save in two instances (as to Mr. Hues and Spencer James) it does
not appear that the witness had any particular personal acquaintance
with the men named.

3. It does not appear as to any of them that he had any reason why
he could single them out of the whole number of 300 who came, or
of the 100 who voted, and say in what lot they came. It is or would be
a very suspicious fact if he could not do the same as to all or each lot
and appeared to be able to do it only as to the very persons needed
to answer contestant's claim. That alone would serve of itself to so
depreciate the value of his evidence as to destroy the effect of the same.

4. The fact that he does state why he remembers Mr. Hues and Spen-
cer James leaves it to be reasonably assumed or presumed that he had
no particular or special acquaintance with the others.

5. It is to be observed that in few instances alone does he state the
date or lot directly or absolutely even in form or appearance. And
even in these, no one can tell whether he remembers the fact as a
matter of memory, or has satisfied his own mind from hearsay or in-
formation obtained by inquiry of the contestant or others. In some in-
stances he states by impression, and rather faintly. In other instances
he does it argumentatively, or by using the argument of exclusion,
or a negative process, and forming a deduction and then stating that
as his conclusion or as a fact. Even when he is recalled subsequently,
and has had time to refresh his memory, and has attempted to do so in
other matters at least, he states as to Jesse Carroll with more positive-
ness, but gives no reason for it, and presumably had none, as he does
not, and is not asked to, state it. I can conceive of none, and if allowed
to conjecture, or disposed to assign one which is derogatory to the
witness, I should say that it was because it had occurred or been sug-
gested to him that, as he had left the testimony before as to Jesse Oar-
roll it did not come up to what was needed to answer contestant's pur-
pose, and it was therefore made more direct and positive in answer.

I am myself impressed, and I think any one disposed to scrutinize the
evidence and get a good reason for his conclusion must likewise be
impressed, with the suggestion that the witness undertook to do, and is
claimed to have done, an impossibility, except perhaps in two indi-
vidual instances which form exceptions, because of a more intimate ac-
quaintance and for special reasons given. It is too much for any one
to assume, without evidence to that effect, that there were particular
reasons as to the other persons comprehended in the answers given,
especially when they are almost exclusively the particular men needed
for contestant's purpose. In this view, and in order to show this im-
possibility, one has only to form a background and basis of facts not
disputed in front of or on which the witness stood when he thus testified.
I state or restate some of the prominent ones. He had left the com-
pany long before he testified, that having been given up, and had gone
into other business. A year and a half, more or less, had elapsed
since the dates in question. He had no access to the books and papers
of the company, had no lists, books, memoranda, or other papers, or

COOK VS. CUTTS. 275

given facts, by which to fix the dates or the particular lots in which
the men came. The crowds of negroes were people taken and gathered
up in different sections of Virginia, were taken to Iowa, to the number of
400 or 500, and in crowds, 6 in number, of from 65 to 80 each, distrib-
uted through seven months, at intervals of about a month or more. The
witness, a white person, does not appear to have had, save in cases of
limited exceptions, any more acquaintance with them than such as would
arise from the general facts named. He had little to do with them at the
mines after they arrived except to locate and organize them for work
there, hand in to the officers of the company which employed him the
lists of the persons brought, with an account of his expenditures and
expenses. It is true that while at the mines, in the intervals between
the trips, he may have seen more or less of them ; but as they were at
work in the mines, and he did not attend to keeping pay-rolls or
their accounts, or paying them off, his familiarity was not much or great.
Some of them had several different names by which they went, and they
were largely called by nicknames. Very rarely probably was the full
name sounded in the witness's ears. If the witness ever wrote them,
it don't appear to have been done only when he made out the lists in
Virginia before, and when he took the persons to Iowa with one ticket
or pass. He had no occasion to memorize the names, in any consider-
able number of iristances at least, and would not be as likely to do so if
he wrote them down at first and relied on the lists.

I submit for the consideration of the House whether it is in the power
of human memory to retain and be able to give accurately what the
witness has claimed to be able to state. He could do it perhaps in
special cases and for specific reasons which he could give. I would not
believe any man if he said he could do it until I had put him to the
severest test and found it to be so, and then I would set him down as
an anomaly, a prodigy, and should want to know what his system was
so it could be put into a treatise on mnemonics.

But it is proved beyond doubt that the witness here is no such wonder
or prodigy, but quite the reverse. The cross-examiner appreciated this
difficulty and put the witness to the test sufficiently to accomplish the
purpose. It was proved beyond doubt that the " May crowd" (of May
15) had at best not more than ten men in it, the rest being women and
children, and he would be able to state the names of the men in this
lot, if any one, we should suppose. But he fails utterly, and shows
what I have already urged in another connection, that he required that
the interrogator should give the name first in the question.

Let us see how he bore the test. I quote from the record of his evi-
dence :

1st. Then you can't remember now how many men came with you on that third
lot, or where they came from ? A. I can't remember the number of men, but I now
call to mind now some who did come, and that they came from Staunton, and I now
recollect further that I had quite a number of women and some children, and I recol-
lect further that some of them came from west of 6taunton. I can call some of the
families and some of the men without any memorandum.

Int. There were only about ten men in the May party, were there T A. My recol-
lection is that there was a smaller number of men on that occasion than either of
the previous trips or subsequent one that year. I believe there were less than twenty.

Int. Isn't your memory good enough to enable you to get nearer the exact facts
than that .'A. My answer is that I am giving the facts to the best of my memory,
as I have frequently stated. I haven't any memoranda to aid my memory whatever.

The third lot is the " May crowd," as witness says. This matter is
returned to again (Kec., p. 398), and he finally confesses that he could
not tell the names from memory. I quote :

276 DIGEST OF ELECTION CASES.

Int Did you bring a single Charlottserille man trith you in the May trip? A. / can't
call to mind whether I did or not, but if I had the roster, or any other list of the names of
the parties, I could.

lot Don't you know, outside of the roster, what men you brought in the May croud
If I heard the list of names called I could tell perhaps. The rosier was the on ly book of the
Consolidation Coal Company that I ever remembered to have handled, except the miners look.

Now let us turn to another test of the witness's memory. What I
shall next quote in considerable detail shown not only a very defective
memory, but a very loose and reckless course of swearing at the outset,
.and all through a very weak power of association, as he terms it, not to
say an utter falsity of statement. It is to be observed that when flrst
called he undertook to fix the dates of going and coming for and with
the first four lots in the line of contestant's assumption or desire. He
was then with an unaided memory, and proceeds to state that he started
for the second lot about the first of April ; that it took him about three
weeks to gather up the company (Rec., p. 322) ; that he arrived in Iowa
some time after the middle of April with the second lot j that he went for
the third lot after a shorter interval than any trip before or after, less
than two weeks from the time of his arrival loith the second lot ; that he
got bade to Iowa in the month of May, remembers that ; that he could not
have gathered up the company short of three weeks ; usually made it a point
to strike courts at Staunton and Charlottseville ; that the court sat at Sta un-
ion the th Monday of May, and fixes that as the time when he icas at Staun-
ton getting the third lot. (Rec., p. 322, 323.)

Subsequently it turns out, and he swears on the strength of two let-
ters written by him to his wife, that he arrived with second lot April 4,
and that he arrived with the third lot May 15. He fixes this latter fact
by the date of a draft also, and in other ways hereafter to be discussed.
Now, it appears by this that his memory, not only as to dates but as
to distinct facts, was utterly unreliable. It is proved by Dr. With-
erill, and conceded in contestant's brief, that the witness started from
Iowa May 4 or 5, while witness cannot exactly tell, but says it was
about May 1. If so, and he returned May 15, and it took him three
weeks to gather a crowd of some sixty negroes, women and children,
and four or five days to travel each way, it is difficult to see how he
could get back in ten days from the time when he started from Iowa,
and yet he swears to each of the elements which lead to that result,
.and fixes the day of arrival in Iowa as May 15.

The cross-examiner put him to the test, and showed up his reckless-
ness of statement and his grave errors and mistakes of memory most
effectually. He did not meet a single term of court in Charlottseville or
Staunton when he went for either of the first three lots, unless the third ar-
rived May 1, 1880. I quote :

Int. Have you any recollection that yon certainly hit either court in either April
4>r May. And, if so, state particularly which court and in which month. A. My im-
pression is, and has always been, that I did not miss both courts at either trip ; I have
co distinct recollection of any one.

Int. If you have no distinct recollection of either hitting or missing either of thoae
courts in April or May, why did you voluntarily refer to the courts the other day,
when Mr. Cook was asking you questions, as being something from which you could
fix date and times ? A. For the reason that I have explained a half dozen times, that
I always aimed to hit one or the other, or both courts, with a view of meeting more
people on that day than any other day in the month ; that I usually aimed in plan-
ning my trips to meet either one of those courts or both.

Int. But how would that fact help your memory if you don't know you were at
either court f A. It is a habit and custom in the country that I bring those people
from for the colored men living in the country to come to courts of their counties when
they are hunting employment, and it was always my purpose in starting from here to
Virginia to strike one or the other of those courts, and I have no recollection of hav-
ing missed both courts in any trip ; my impression is that I did not miss both courts

COOK VS. CUTTS. 277

on either trip ; it is possible that I may be mistaken as to it being the third Monday,
court day in Staunton : it may be on the fourth Monday ; if permitted to go and hunt,
up the evidence, I think that I can establish to a certainty that I never did miss both
courts on either trip.

Int. Do you feel quite positive that you did not ? A. That is my impression, sir.

Int. Is your recollection pretty clear on that point ? A. I gave it as my inapres-
eion.

Int. Then tell definitely which court you hit in April. A. I can't tell positively.

Int. What clay in March did you start back for the second lot f A. I can't tell you:,,
sir.

Int. Give the date as nearly ae you can. A. I recollect that I was at Muchachinock
ten days or two weeks before I started back for the second lot ; I go by circumstances
more than anything else ; I have no data to go by.

Int. What day of the week did you start back, and was it not on Monday, the <J2d
day of March, that you started back! A. I can't state positively the date, but think
probably it was, as I usually started early in the week, in order to get home before
Sunday.

Int. At which court were you when you went back for the second lot ? A. I can't
state positively.

Int. Give your best impression. A. I am not positive whether on that trip I struck
either of the courts. I aimed td do it, and usually tried to strike one or the other, and
always preferred to strike the Charlottesville court; I have a letter in my hand post-
marked March 15, 1880, dated at Muchachiuock, written on March the 14th, 1880.

Int. What time did you start back' for the fourth lot ? A. I can't say positively ;
I can tell you the circumstances by which I can fix the date of my return to Mucha-
chiuock ; we got there the day before they celebrated the 4th of July; we got there
on the 2<1.

Int. Give the date when you left for the fourth lot, as nearly as you can. A. It was-
after the first of June, and very early in June; I found the people harvesting in the
Sheuandoah Valley, and I recollect further that it was an unusually early harvest.

Int. When did you start back for the third lot ; before or after the first of May ?
A. I can't be positive as to time ; I remember one thing, of having eaten strawberries
at Cincinnati, Ohio.

Int. Give your best opinion as to when yon started for the third lotr A. It was
the latter part of April or the first of May, 1880. I can't be positive as to exact date
unless I have something to locate by.

Int. Then yon did not aim to reach either the Staunton or Charlottesville court in
April ? A. My recollection is general about that ; I aimed to strike either one of
those courts or both, with a view to meeting more men from their homes.

Int. You did not strike either court in May, did you f A. My recollection is gen-
eral about that ; I always aimed to strike either one or the other or both. If I have
time to examine letters! have at home I can probably tell better.

Int. Are you able to say whether you did or did not start as early as the 17th day
of March? A. I can't call to mind any circumstance to fix the date at all, except I
don't think from what I did down there at Muchachinock that I did start that early.

Int. Then, according to that, you did not hit the March Staunton court f A. I
probably did not.

Int. Then you hit none of the courts in March or April, and not more than one, if
any, in May? A. Well, I think from the dates that have been given me to-night
that is probably the fact.

Int. Then those courts do not enable you to fix any dates at all ? A. Not positively.

Int. Then you are mistaken, are you not, when you said you thought you were at
the Stauuton court in May f A. I am not positive that I am mistaken ; it is probable
that I was.

Int. You were mistaken, were you not, when you said yon hit the Staunton court
in April ? A. My answer is on record ; twice before I answered that I thought I was,,
but after examining dates it could not have been possible to have been here.

Int. You are mistaken in saying that you thought you were at the Charlottesville
court, are you not ? A. Yes, sir ; I could not have been there on the 4th.

Int. You are mistaken in saying that you thought you were at the Stannton court
iii March, are you not ? A. I don't know that I am ; I had no date to go by ; I am
not positive that I was there at all, as I have answered before. I had an impression
that I never missed both courts any trip.

Int. You are mistaken in saying that the shortest interval was between the second
and third parties instead of 'the first and second ? A. Yes, sir ; I made that statement
in beginning my testimony this morning.

Int. You are mistaken in saying that you got here with the second lot after the
middle of April ? A. Y<-s. sir; and I made that statement on my direct examination
this afternoon. I have repeatedly saiil during my examination that I had to fix all
the dates more from circumstances than anything else. With the exception of the

278 DIGEST OF ELECTION CASES.

two letters I have had no memoranda or data to go by. I can tell, if you desire it,
how I fixed the arrival of the first and fourth lots.

Int. Yon are mistaken, are you not, when you said you left Virginia with the third
lot after the Staunton court ? A. Yes, sir ; I corrected that in my direct examination
this morning.

Int. Since it is evident that you have made so many mistakes in your testimony, is
it quite likely that you have made other mistakes that have not been mentioned f
A. It is quite possible, especially as to dates.

Int. What ones of the colored men do you say sent back money by you or requested
you to do errands for them when you went back for the third lot ? A. I can call to
mind two, Nelson Woodford, from Charlottesville ; Hilliary Scott, another. It is
almost invariably the case that I had money and messages to take back to their
friends, aud to attend to little business matters for some of them.

Int. If you got here the 4th of April, then you must have missed the Charlottesvilla
court, which was the first Monday in April'? A. Yes; then if I am mistaken about
the date of holding court, then I must have struck the Stamiton court in March.

Int. Then if you hit tfie Stanntou court in April, you had to be there by either the
19th or 26th of 'that month, did you not? A. My recollection is that I was not there
at either of those dates ; I have a letter here showing that I was at Muchachinock on
the 26th of April. I could not have been there then.

Int. Then it is not true, is it, that you hit either court in the mouth of April ? A.
From the dates before me in this calendar I did miss both courts, because I was here
on the 4th and 26th, inclusive, yet I have no recollection of having missed both.

The witness leaves for several hours at this point, and ou returning
the examination proceeds :

Int. I believe you said you missed both of the April courts in Virginia ? A. Yi >.
sir ; after the dates before me, I know it was impossible for me to be at either of them.
The whole of my testimony-in-chief and cross-examination given the other day and
to-day have been entirely without memoranda or data, except the two letters that I
presented to-day; I didn't know the existence of them until after 1 had testified the
other day.

Int. You were quite sure you hit one court or the other in April ? A. I was until
confronted with the dates in April, in the letters and the almanac.

Int. You at first were quite sure that you had hit the Staunton court in May ? A.
I was quite sure when I testified that I never missed hitting one or the other courts
on either trip to Virginia. I also was quite sure that I hit one or the other court in
May.

Int. Didn't you say that you thought you hit. the Stauuton court in May f A.
That's my recollection of my evidence.

Int. You didn't hit that court, did you ? A. No, sir.

Int. Did you hit the Charlottesville court in May? A. My impression is that I did.

Int. Did you bring- a single Charlottesville man with you in the May trip .'A. I
can't call to mind whether I did or not, but if I had the roster, or any other list of
the names of the parties, I could.

Int. Don't you know, outside of the roster, what men you brought in the May
crowd? A. If I heard the list of names called I could tell perhaps. The rosier was
the only book of the Consolidation Coal Company that I ever remembered to have
handled, except the miners' book.

Again, as to the roster:

Int. Do you say that by examining the roster you could tell more about these men
than otherwise ? A. lean.

Int. Examine the book now shown you and state whether that is the book men-
tioned by you in your testimony. A. Yes, sir ; I believe it is.

Int. Does that book show the date of the arrival of each man ? A. I don't see it
here, sir.

Int. Does it enable you to testify with any greater certainty or more particularity
than you could do without it ? A. Yes, sir; from association.'

Int. What is it yon cannot explain ? A. In the first place, on the index sheet the
names do not appear as they arrived at Muchachinock ; for instance, James Ash's
uame is the first on the list, and Hesekiah Adams', both of which came in the fourth
party, and Charles Allen came in the second, and he is below them.

Int. Explain fully, as fully as you wish and can, when and how that roster enables
you to testify to anything with more particularity or certainly than you can do or
have done without it. A. I am enabled by having the names before me to associate
them one with another ; that would make me identify them as to their arrival, as to
the time they came and party they came in. To illustrate I will use a list of four or
five names. I catch one that I can associate with the crowd, and ihen 1 can catch

COOK VS. CUTTS. 279

the balance- that came with him. Here I see the Rev. Charles Brookens came in the
July party, ami I know that James Oaten and Hezzy Adams was iu that party, and
soon all the way through.

Int. You gave some other illustrations there, Charles Allen and some others. A.
Ireiiu'mlu-r distinctly that Charles Adams came iu the second party; Sophia Banks
came in the second party ; Frances Brings came iu the first party ; she was the only
woman in the party ; Daniel Booker came in the first party and left before the second
party came ; Frank Bnsli came iu the second party, and I brought his wife in the
July party ; Lee Bugher came in the first party, and left pretty soon ; Isaac Brookens
came in the first party, and had a severe spell of sickness and left in a short time.

He said he could fix dates and things by association, and states one
instance in the case of the name of Sophia Banks. But contestant had
seen demonstrated that he had no accurate power of association and
dropped him, and neither he nor the witness proceed icith the aid of the
roster about which there had been so much clamor and hard accusa-
tions made against the coutestee prior thereto. The con testee consented
to waive the question of time. But contestant had the witness swear
that he had had a bad sick-headache all the time during which he had
been testifying, as though thatcould add any weight to his evidence.

It turned out that the one thing about which he was certain, to wit,
that Sophia Banks came in the second party, was otherwise. Page
Irwin and others show conclusively that she came in the July party.
(Rec., p. 560et seq. ; Jones, p. 550.)

Contestant had had access to the papers of the company, and had
taken away and kept the pay-rolls. He said he could not find the pay-
roll for April, and that is not here. He produces only those for May
and March, and up to what date they run does not appear. All subse-
quent to May contestant got, but he don't produce and put them in evi-
dence. If we had June, it may have covered part or all of May.

Is it an answer to say that coutestee failed to refute this evidence ?
It appears that endeavor had been made to get the witnesses, but they
were not obtainable. The men at the mines had dispersed and gone.
And coutestee was engaged in discharging his duty as a member in
term time, was known to be ill, and so great diligence could not be rea-
sonably required of him as under other circumstances perhaps. He
Lad a right to stand on his prima facie title until it was overthrown by
competent and credible evidence. And this had not been done, in my
judgment.

I now call to the attention of the House other elements by which the
credibility of Major Shumate is impaired.

6. It appears that Shumate advised men to rote who he knew were not
legal voters.

Isaac Downey testifies thus, viz :

Int. 5. What was the conversation yon had upon that subject ? A. It was some
time in October, sir, in the year 1880, while Major Shumate was there. I told him I
had a notion to come to Iowa, but did not want to come until his return again, so
that I could get in my vote for President. He then said that it did not make a
damned bit of difference ; that I could vote in two weeks after I arrived in the State.
<Rec., 582.)

Minor Henderson testifies that on the day of the election

H^{ Shumate) asked me if I was going to vote ? I told him no, sir. He asked me
why ? I told him I had not been out here long enough to vote. He then told me I
could go and vote here if I had only been here but one day. (Rec., 579.)

John Hawkins's testimony is this, viz:

He told me to go ahead and vote, that the people did not swear here like they did
in Virginia, aud I came pretty near going to vote. The wagon was so near full that
I did not go at that time.

Int. 7. What did you say to him when he asked you to go and vote ? A. I told him

280 DIGEST OF ELECTION CASES.

I did not like to do it ; that I did not do it at home. He said it made no difference here.
The wagons came back the second time ; I took a second thought and would not go
at all.

Int. 8. How long had you been in the State at the time of the election in Novem-
ber, 1880? A. About a mouth, and cannot tell exactly how many days.

Int. 9. Did Shumate know that you had only been here about that long ? A. Of
course he did, when he came with me. (Rec., 604.)

Attempt is made to palliate the effect of this by showing that he did
not know the law. But this is hardly probable, as he had voted him-
self at prior elections and lived long- in Iowa.

If he did not know, and attempted to induce a man to vote without
first ascertaining, this proves a recklessness and wantonness not credi-
table to him. He was a Democrat, and it may be said that he would
not be likely to urge votes which he might infer would be cast for the
Republican candidates. It don't appear that the men named were lie-
publicans. It is proved that some negroes were otherwise, and cheers
were given among them for Hancock.

If colored men went from the mines to vote, Major Shumate was there,,
and he would be likely to know it. Although he did not himself go to
the polls and see who voted, he saw who went, as the witness Hawkins-
speaks of him as if near the wagon in which the men were being carried
to the polls. In the conversation which I will give soon, he assumes to>
know who voted, and clearly had an opportunity to see and know who
went. The negro vote had been canvassed before the election. If he
knew that persons were going to vote who had not the requisite resi-
dence, his duty was, in his relations to them, to warn them against it.
As a Democrat he would have been likely to do it, in the interest of Ins
party, and as a patriot he ought, to have done it.

7. Shumate is impeached, and his present story contradicted by what
he had previously solemnly declared when the matter was fresh in mind.

After the election was over and a contest threatened or begun when
inquired of about it, or when the subject was being mooted he would
or should have told the truth, if he said anything and was a man of ve-
racity. What did he do and say ? I take his own testimony and let
that speak for him, without resorting to that given by others :

Int. Do you know W. A. Lindly? A. I do, sir; cashier of the bank.

Int. Did you have a conversation with him about the mouth of April, 1881, at the
Oskaloosa National Bank, and soon after you returned from Virginia in that month,,
in which you said to him in response to a question that you were acquainted with all
of the colored men at the mines, and that those who voted were legal voters and had
a right to vote, and that the charge that any of them had voted illegally was entirely
unfounded, or words to that effect? A. I had a conversation with Mr. Lindly with
reference to the charge of illegal voting, to the effect that the charge of illegal vot-
Lig was false, and from my information, not all voted that had a right to vote, anil
from my information that the charge was false, for I never knew how many men did
vote, but with reference to several conversations I had I have invariably made the-
same statement, according to the best of uiy information.

Couple this with the fact that he knew when the wagon loads of
colored men went to the polls, and had information otherwise on the
subject, and the fact that he then knew and had in mind better than
now who had come since May 15, what shall be said of him when he
swears in effect that one-fifth of those who went from the mines to vote
had no right to vote ? What shall be said of his solemn statements to
different parties after the election day, when the matter was fresh in his-
mind, when contrasted with his strained efforts of memory now to gain-
say the truth of that statement ? Why did he keep silent so long, when
this contest had begun, and until contestant got hold of him in ai
emergency of his case and in a desperate attempt to get more evi-
dence?

COOK VS. CUTTS. 281

8. Besides and beyond all this, some 25 or 30 witnesses of more or les
weight, white and colored, impeach his character for truth and veracity
by swearing to his bad reputation in that regard. If this mode of im-
peachment stood alone, and everything else which appeared in evidence-
was above suspicion and reproach, I should not be disposed to say much
about this proof of bad reputation. With what has already appeared
in other matters stated, each element gives countenance and support
to the other, and they must go together. Witness has sworn to what
he evidently could not remember, as though he did recollect it, as an
independent matter of absolute memory. Much of his evidence, while it
cannot be said to be willfully corrupt from anything that appears, was-
given with an apparent recklessness of statement in several instances,,
and it is contradictory and conflicting in itself. He is contradicted on
several points by other witnesses who seem credible, and the general
impeachment lends some aid at least, in connection with that, to seri-
ously impair, if not entirely to discredit, him as a witness. At anyratfr
1 respectfully submit whether this is not so.

He calls most of his witnesses to sustain his character from where he-
was least known, and few from where he had lived two years and was-
best known.

If any one hesitates to find absolutely that Major Shumate is mis-
taken, or is in error, or that he is successfully impeached, or even that
he has falsified, he needs to go no further than to say that contestant's*
claim now being considered is not proved satisfactorily ; that it may be-
true, as testified to by him, and it may not be, but it is not strong and
certain enough in quantity or quality to overcome the contestee's prima
facie right. Those who, on the other hand, give full force and credit to
JNLit jor Shumate will not hesitate, probably, to charge the whole number
of persons who voted and in question with not only voting illegally, but
of corrupt perjury in swearing at the polls that they had resided in,
Iowa the requisite six months, and couple in the charge some eight
more disinterested colored men who sustain them. Some may hesitate-
to discredit one white man who may be only in error by reason of im-
perfect recollection or innocent mistakes, and yet will not hesitate a*
moment to believe fourteen other men guilty of perjury on the strength
of the testimony alone of that one white man, besides leaping the wall
of strong presumption which the law has built for the protection of the^
seat of the contestee. For one I cannot go with them. Accordingly I
reject the claim of contestant in regard to the seventeen votes consti-
tuting the second class, as classified by me.

VI.

As a summary and in partial review of the case I have to say, as my
opinion : It may be treated as proved on a preponderence of evidence-
that there was a company of colored persons who arrived in Iowa May
15, 1880, and if established that there was no company taken by Major
Shumate from Virginia to Iowa between April 4, 1880, and May 15 r
the evidence is satisfactory that the following persons arrived May 15 r
1880, to wit : Jesse Carroll, Andrew Lewis, Henry Lewis, James Usher,
Charles Garrison, James S. Martin, and if they are identified as the-
persons whose names appear on the poll list, their votes were illegal, and
six votes should be deducted from the vote of the contestee; that a cor-
respondent of names only is hardly a sufficient proof of identity. So that
the claim of contestant as to what is termed the " May crowd," and in
regard to which the evidence is very conflicting and troublesome, may

282 DIGEST OF ELECTION CASES.

t>e allowed, entirely disregarding the evidence before alluded to, of
some twelve witnesses, who swore positively to May 1, 1880, as the
date of the arrival in May. I cannot and do not resist the conclusion
that May 15, 1880, was the date of the arrival of one May crowd. As I
have already said, nothing can reconcile the evidence of some twelve
witnesses that there was an arrival of a company of colored persons on
May 1st with the other proof if there was only one lot in May ; but the
assumption that there was another arrival between April 4, 1880, and
May 15, will reconcile it. I will concede, however, for the sake of the
argument, that six votes are proved to have been cast by persons who
arrived May 15. The contestant is still bound to prove four more votes
to get rid of the ten majority found in Div. I ; and ten more, the balance
found in favor of the contestee as a balance in the miscellaneous class.
This must be got out of the uncorroborated evidence of Major Shumate,
and taken from the list of those alleged to have come after May 15. No
man, woman, or child, colored or white, and no documentary evidence, sus-
tains the evidence of Major Shumate as to that class of voters. And the
unsupported evi4ence of one man is used to overcome the presumptions of
law and the oath of each voter at the polls. What impresses me against
.such a conclusion is that what Shumate testifies to as to these men was
.given entirely from memory, without any paper or document, or other fact
to refer to in aid of the memory, and when he states no acquaintance with
any of the persons named with the exception of two of them. It is apparent
that the human mind ordinarily is unequal to the task of fixing such dates,
and to locate these individuals in particular lots out of six different ones
of from 60 to 80 each, especially under the circumstances which the wit-
ness gives. He does not pretend that he can do it with accuracy, and
does not assume to do it. What he says is mainly by impression only,
by process of reasoning, and oftentimes argumentatively or infereu-
tially. He is asked to name the men who came in the " May crowd."
He could not do it, although they were few in number. He said he could
do it by association if he had the roster, and getting the roster he swears
to one person with great positiveness, and this by association, and in this
instance he was manifestly in error, as is shown by other evidence. He
attempted to fix the date when the May crowd came by saying that
he gathered the crowd at the May term of Stauuton court, which sat the
third Monday in May. He had afterwards to confess his error in this re-
gard. A series of mistakes in matters of memory, involving important
facts, appear as confessed by him. If confessed to be mistaken in things
as to which he pretended to be most certain, what reliance can be put
upon his memory in other vital matters where he don't pretend to be cer-
tain, or has nothing by which to aid his memory, and especially where
the facts are such that no man of the usual capacity could be expected to
inow or remember with any accuracy a year and a half afterwards, and
when there is no particular reason shown why he should remember facts
and individuals in question? The memory must be such as to en-
able the witness to recognize and identify the persons, and have them
correctly in mind when the names are simply mentioned to him by an
interrogator, and that too where in many of the cases there were several
persons by the same surname. It is not in the power of man to do it
wnder the circumstances appearing. The witness clearly could not have
proceeded, unaided, to give the names of any considerable number of some
hundreds of colored men, such as he had taken in crowds to Iowa in
1880. He was asked to do it as to one, the smallest of all, and failed, con-
fessing his inability. If any one is singled out and remembered, it must
foe by reason of some particular fact which can be stated. The witness

COOK VS. CUTTS. 283

does not pretend to single out but two persons whom be personally knew
and recollected for some special reason. Even then, and as to these two,
he does not give any reason why he locates them in or outside of any par-
ticular lot which came to Iowa. One was as necessary as the other in
order to make the proof satisfactory. ~Ko one can read the whole evi-
dence of Major Shumate (p. 321 et seq. and 400 et seq.} without being thor-
oughly impressed with the weakness and inaccuracy of his memory
when .standing alone and unaided. He says finally that he cannot tell
what is asked of him by memory, as he has no books, papers, or mem-
oranda to aid his memory. He changes his prior testimony on essential
facts when the documentary evidence is found. As to the colored
persons coming, as is alleged, after May 15, he finds nothing whatever
to aid his memory, and confesses that he cannot fix the dates by the
roster when that is produced and shown him, although he had before
stated that he could do so by that, and he does not do it, and the matter
is then dropped. When he is recalled, after talking quite a while and
using means to refresh his recollection, he finds only letters to refresh
it by. He adds nothing by which he fixes the dates and lots at or in
which persons came, and that matter is left as it stood in his prior
examination, found on pages 322-323 of the record. When we add
to this looseness of memory, and the proof of so many gross errors
of memory and grave mistakes, the other facts which show his polit-
ical bias to be in favor of contestant, if either one, and which tend to
shake him as a credible witness generally, and he is otherwise so strongly
impeached by other evidence, I am unable, in the discharge of my duty,
to find as proved any illegal votes out of the lot alleged as coining after
May 15. It is enough to say that the illegal votes are not proved, and
that the legal presumption in that event must be allowed to stand, and
will prevail.

Xothing remains then but to give the figures showing the result
reached by me :

Start with the ten majority for the contestee, as found at the end of Division I. 10
Add the balance found in favor of coutestee under Division II 10

Wf have a majority of 20

Deduct six votes from the May crowd, which is in doubt and dispute, but con-
ceded for the purpose of the argument 6

Balance 14

If the balance in the miscellaneous class (outside the colored men from the mines)
is increased, as found by Mr. Thompson, to fourteen, as he seems to find, this
balance is made to be 18

Even if great liberality is exercised toward Major Shumate, and he
is found to remember Mr. Hues and Spencer James in the second class
for special reasons given so as to entitle his memory to credit thus far,
and they are proved to have voted for contestee (as they are not), this
does not affect the result materially in either aspect.

I find the contestee's net majority to be 14.

I recommend the passage of the following resolution :

Resolved, That M. E. Cutts is entitled to retain his seat as Bepresent-

ative from the sixth Iowa Congressional district to the Forty-seventh

Congress.
Resolved, That John C. Cook is not entitled to the said seat.

284 DIGEST OF ELECTION CASES.

ALEXANDER SMITH vs. E. W. ROBERTSON.

SIXTH CONGRESSIONAL DISTRICT OF LOUISIANA.

This case was dismissed because of failure on the part of contestant to take testimony
and prosecute his case according to law.

MARCH 4, 1882. Mr. MILLER, from the Committee on Elections, sub-
mitted the following

REPORT:

The committee to whom icas referred the above ease have had the same under
consideration, and beg leave to report :

That after hearing argument, and after a full examination of the
papers, it was unanimously agreed by the subcommittee having the case
in charge that the contestant had not prosecuted his case according to
law j that he failed to take evidence to substantiate his charges of con-
test j and therefore recommend that the contest be dismissed ; which the
fall committee, upon due consideration, concluded to recommend. The
committee therefore report the following:

Resolved, That the contest of Alexander- Smith vs. E. W. Eobertson,
in sixth Louisiana district, be dismissed without prejudice.

SAMUEL J. ANDERSON vs. THOMAS B. REED.

FIRST CONGRESSIONAL DISTRICT OF MAINE.

Contestant charges that voters were bribed to vote for contestee ; that persons were
allowed to vote who had no right to, and some were refused the right to vote
who were entitled to ; and that there was intimidation which prevented the real
expression of the voice of the people.

Held, as to the charge of bribery, that there is no suggestion or intimation made of
any complicity in, or even knowledge of, the same on the part of contestee.

That as to case of illegal voters and rejection of legal votes, there is no proof of fraud
or willful wrong, only that the selectmen erred in judgment, and something more
than conflicting is required to reverse their decision.

The evidence does not substantiate the charge of intimidation.

The House adopted the report.

JULY 18, 1882. Mr. G. C. HAZELTON, from the Committee on Elections,
submitted the following

REPORT:

The Committee on Elections, to whom were referred the papers relating to
the contested-election case in the first Congressional district of Maine,
having had the same under consideration, submit the folio-icing report:

The testimony in this case shows from unquestioned facts that the
contestee received 123 more votes than the contestant.

ANDERSON VS. REED. 285

This plurality the contestant seeks to overthrow by three separate
allegations:

First. That some voters were bribed to vote the Republican ticket.

Second. That certain voters were allowed to vote who had no right
so to do, and certain voters were refused the right to vote who were
really voters.

Third. That there was intimidation which prevented the expression
of the real voice of the people of the district.

Taking these allegations in their order we find the facts to be as fol-
lows :

First. As to the charge of bribery, no suggestion or intimation is
made of any complicity or even knowledge on the part of the sitting
member.

Whoever was bribed voted for the member of Congress simply because
his name was on the general ticket. The number of cases alleged by
the contestant seem to be but seven, of which one is proved by the
statements of the man bribed, which are not contradicted. The rest are
in dispute and rest on rather vague evidence.

Second. As to the charge of admission and rejection of voters. In
order to understand the bearing of the testimony it is necessary to un-
derstand the law of elections of the State of Maine. By section 25,
chapter 4, of the revised statutes of that State, it is made an essential
prerequisite to the right of voting that the voter's name shall be on the
check list, which is the registry of the names of voters. These check
lists are made up in different ways in municipalities of different sizes.

In cities the general law is that the aldermen shall be in session, open
to all, for six days before the election, which takes place on Monday, to
revise the lists which are made out for each ward by assistant assessors,
who go from house to house.

After the assistant assessors have made their lists from the best in-
formation they can get, they post the names in alphabetical order in
front of the ward-rooms and in other public places, so that the voter
prior to the open sessions of the aldermen may scan the list and see if
his name is on it. During the six days those whose names are omitted,
or incorrectly on, appear, and the needful corrections are made.

The lists thus revised and corrected are sent to the different wards,
and as the voter comes to the desk his name is checked, and he votes.
If his name is not on the list he cannot vote. In towns having one
thousand or more registered voters the selectmen sit for three days to
correct the lists.

In towns of between five hundred and one thousand voters the board
sits one or more days.

In towns of less than five hundred voters, the selectmen correct the
list before the polls open and during the entire day. All these different
sessions are open and public.

The contestant claims that a number of voters voted for Reed who
had no right to, and another number who would have voted for Ander-
son were not allowed so to do. These numbers if added together he
claims would overcome the 123 plurality.

It is to be observed in regard to all these cases that there are no alle-
gations of fraud or willful wrong, only that the selectmen erred in judg-
ment. It is an appeal from those who, especially in the towns, were
perfectly conversant with the status of every voter to Congress, on evi-
dence taken in depositions.

The nature of some of this evidence may be inferred from the follow-
ing extracts from contestant's brief:

286 DIGEST OF ELECTION CASES.

At Falmouth, it is both affirmed and denied that Dayen, Stone, and True, who
voted for Reed, were non-residents or paupers, and that the votes refused to Anderson
of Murray, Reynolds, and Black were lawful ones (pp. 131 to 133, and 206-7, 215-17,
and 293-4). The officials to decide were partisans of Reed.

At Standish, McKenzie, a non-resident, voted for Reed. Cotton voted for Reed,
and says he was not hribed (p. 291) ; though his father supposed it to be an admitted
fact that he was (p. 150). Merrill, of Washington, voted for Reed at Brighton, where
his residence is both denied and affirmed (pp. 160-1-2 and 315, 348, 364).

At Westhook, the evidence sharply conflicts as to the right of Hoegg and others to
vote for Reed (pp. 117 and 249-50).

At Otisfield, Pike and McNeil voted for Reed. It is positively affirmed and denied
that they were non-residents (pp. 51 and 330-3-5).

At Gorhain, Ney, Rowe, and Shaw, non-residents, voted for Reed (p. 163). And Ba-
con and Hall's votes refused to Anderson (p. 102). An attempted explanation will be
found on page 297. Ney's name was added on election day ; and a witness says Hall
admitted he was not a voter (p. 222).

These examples will be found on pages 10 and 11 of contestant's brief.

An examination of the testimony will show that every case is a dis-
puted one which has been settled on testimony more or less conflicting
by men who, as selectmen of the town, were thoroughly familiar with
all the facts, and in the open town-meeting, in the presence of men who
also knew all the facts. To overrule such decisions in the absence of
any suggestion whatever of bad faith would need something more than
conflicting evidence. There was another class of cases in Portland
where it does appear that a small number of voters lost their rights
because of a failure to look after their registry. But this is shown on
both sides, and was evidently the result of carelessness on the part of
the voter and such accidents as must occur in a registry of more than
7,000 votes.

It should be added that cases of similar proof were shown on the part
of the coutestee, both as to the class of omitted voters and as to the
cases of bribery, but we have not deemed it necessary to particularize,
because the contestant .on the testimony does not make out his own case.

The contestant points out the fact that in Portland two to one of his
supporters were put on the lists by the aldermen, which indicates that
they were left off by the assistant assessors ; and therefore, he says, the
omission was intentional. But when the fact is borne in mind that in
the wards of floating population, where most of these names are put on,
the Democratic vote is more than two to one, the omission proves the
very contrary, and is just what might have been expected.

Third. As to the chance of intimidation, the evidence falls far short
of substantiating the charge. It consists mostly of hearsay and rumors r
and does not disclose a single instance of violence or even threatened
violence. A common report u that men would lose their job " if they did
not vote as their superiors directed, and the testimony generally referred
to in contestant's brief (pp. 4 and 5), hardly constitute such an over-
throw of men's wills and determinations as can be taken notice of by
the law.

Your committee therefore recommend the adoption of the following
resolutions :

Resolved, That the contestant, Samuel J. Anderson, was not elected,
and is not entitled to his seat in this Congress.

2. That Thomas B. Eeed, the contestee, was elected, and is entitled
to retain his seat in this Congress.

BUCHANAN VS. MANNING. 287

GEORGE 31. BUCHANAN vs. VAX H. MANNING.

SECOND CONGRESSIONAL, DISTRICT OF MISSISSIPPI.

Contestant in his notice sets ont thirteen grounds of contest. Contestee challenged
the sufficiency of the allegations of said notice and insisted the same ought to be
dismissed.

Held, That all the allegations in the notice of contest are insufficient.

[The committee, however, examine the case, preferring not to rest a decision upon the
sufficiency of the pleadings, " for if the testimony taken in the case develops the
tact that the sitting member was not elected, it would be our duty to so report^
although the contestant might not be entitled to his seat, having failed to comply
with the law with respect to the sufficiency of his notice."

Held, That one precinct should be rejected because contestee's party friends fired a
cannon in close proximity to the polls, and kept it up for quite a while ; another
precinct should be rejected because the ballot-box was stuffed ; and others because
of the exclusion of United States supervisors of election from the polls and the
counting of the ballots. J

The House adopted the majority report.

JANUARY 29, 1883. Mr. CALKINS, from the Committee on Elections,,
submitted the following

REPORT:

A majority of your committee, to whom was referred the above-entitled con-
tested-election case of the second Congressional district of Mississippi^
having had the same under consideration, beg leave to report:

There were three candidates voted for at the Xovember election, 18SO r
in this district. The returned vote from the various counties compos-
ing the district was as follows : Manning, 15,255 ; Buchanan, 9,996 ;.
Harris, 3,585.

The district is composed of Union, Tippah, Benton, Marshall, La
Fayette, Yalobusha, Panola, De Soto, Tate, and Tallahatchie Counties.

This contest was begun by the contestant, George M.Buchanan,
against the sitting member, Tan H. Manning, and in his notice of con-
test he alleges the following grounds :

1st. That in a portion of the counties comprising said district such persons were
not appointed, neither was such representation given to the different political parties
in said counties, in the appointment of county commissioners of election, as was de-
signed and required by law.

2d. That in a portion of the counties comprising said district, election districts
were abolished and other election districts established, without complying with and
in violation of law.

3d. That in a portion of the counties comprising said district the registration of
voters was not conducted as required by law, thereby depriving a large number of
persons (of lawful right) of the privilege of registering and voting.

4th. That at a large number of voting places in said district, in the appointment
of inspectors of election, such persons were not appointed, nor was such representa-
tion given (in making said appointments) to the different political parties as was de-
signed and required by law.

5th. That in* several of the counties comprising said district a large numb erof per-
sons lawfully entitled to register were refused registration, and that the registration

288 DIGEST OF ELECTION CASES.

and transferring of voters was discontinued many days prior to the time contemplated
by law, thereby depriving a large number of persons, lawfully entitled to register
<or to transfer), from the right of registering, and transferring and voting ; and that
in a portion of said counties the registration books were for a time removed from the
place designated by law for their keeping, thereby depriving a large number of per-
sons (of lawful right) of the privilege of registering (or transferring) and voting.

6th. That at a large number of voting places in said district many lawful voters
were not permitted to vote, their votes having been tendered and rejected by the in-
spectors of election ; that such unlawful interference and hinderauce was permitted
and practiced (such as is specially forbidden by law) as to obstruct and confuse the
voters in the act of voting, or to deceive and prevent a large number of voters from
delivering their ballots at the proper voting places ; that a large number of persons
were permitted to vote for you who had no legal right to vote.

7th. That at many of the voting places United States supervisors of election were
not permitted to exercise the duties of their office, being prevented therefrom by the
unlawful interference of other officers of election, or from other sources, in violation
of law, and to such an extent as to prevent their ascertaining the result of the election
and from performing other duties required of them by law; that no separate lists of
the names of voters were kept by the clerks of election, as was required by law ; that
the polls were not opened at the time required by law, were not kept open contin-
uously from 9 a. m. till 6 p. m., as required by law, and that upon the closing of the
polls the counting of the vote and making up of returns was not done at the voting
places nor at the time required by law.

8th. That at many of the voting places ballots were received and counted that were
not lawful ballots in form and print ; that inspectors of election rejected and refused
to count ballots that were lawful after the same had been lawfully deposited in the
ballot-boxes ; that inspectors of election (with knowledge of the fact at the time) per-
mitted ballots to be votfd that were not lawful ballots; that during the hours pre-
scribed by law for voting voters were harassed and disturbed in such manner as to
prevent their voting in a free, fair, untrainmeled, and peaceable manner.

9th. That the names of a large number of legally registered voters were not placed
upon the poll-books (by the officers whose duty it was to place said names on said
books) used at many of the voting places, and that in consequence thereof said legally
registered voters were not permitted to vote, their votes being refused by the inspect-
ors of election, said inspectors giving as a reason for such refusal to receive such
votes that the names of the parties applying to vote were not on the poll-books.

10th. That the entire vote polled and counted and returned at a part of said voting
places was unlawfully rejected and thrown out (and not counted) by the county com-
missioners of election on making up their returns of the total vote of the county.

llth. That at a portion of the voting places the ballot-boxes were not opened in
public when the polls closed, nor was the vote counted in public nor at the time re-
quired by law to be counted ; that in making up the returns a large number of ballots
were counted as having been cast for you, when in truth and in fact such ballots were
cast for other persons, or were ballots placed in the boxes in a manner not authorized
by law.

12th. That at many of the voting places a much larger number of votes were returned
as having been polled than were actually polled at said voting places; that at many
-of the voting places the poll-books for said places unlawfully contained the names of
a large number of voters, which voters had no right to a vote at such voting places,
but resided in other election districts, and that the names of said voters also appeared
on the poll-books of the voting places of election districts to which said voters of right
belonged.

13th. That at many voting places the election was conducted in many respects in
utter disregard of law and the rights of voters ; that the registration books and the
poll-books of a portion of the counties and election districts in said district were at
divers and sundry times not in the custody and keeping of the proper lawfully con-
stituted officers, but were on divers and sundry occasions in the care and possession
of persons not lawfully entitled to such care and possession ; that at a portion of the
voting places lawful ballots that were cast for me were not counted for me, but were
{unlawfully) counted as having been cast for you, and were so returned by the officers
of election ; that there were a greater number of legal voters of said district who voted
(or who offered to register and vote), and who were unlawfully prevented therefrom,
who desired me as their Representative in Congress than there were who desired you
as their Representative in Congress from said district.

To this notice of contest the sitting member files exceptions and
answer as follows, to wit :

To said notice I make the following an swer, to wit :

First answer. 1st. Protesting against the truth of the allegations in said notice, I
object and say that said notice is so insufficient and defective that I need not deny or

BUCHANAN VS. MANNING. 289

admit the allegation therefor, for the reasons, to wit, said notice does not specify par-
ticularly the grounds upon which you rely and gives no reasons for failing to do so.

2d. The allegations are only conclusions of law and general averment of wrong-
doing in some undefined portions of the district, by unnamed election officials of pre-
cincts not specified, in unnamed counties, or by persons not named or described, and
in places and by means not specified, and in violation of laws and the rights of others
not designated.

3d. Your allegations are so vague and uncertain that I am not informed as to the
persons or officials whom you accuse of crimes, nor where committed., nor do you aver
that such wrongdoings were not instigated by you, or that they were known to or
acquiesced in by me, or that the result of the election was changed by reason of the
matter set forth.

Second answer. 1st. Without waiving any objection to the manifold and vital de-
fects of said notice, but reserving all benefit and advantage thereof, I deny each and
every ground of contest set forth in said notice, and deny each and every allegation
therein contained, and aver that throughout said Congressional district a free and
fair election was held in all respects, except that in the county of Marshall, and in
other counties, at every precinct, divers colored voters who wished to vote for me for
member of Congress were deterred and prevented from doing so by reason of the
threats of personal violence and other means of intimidation used and employed by
other colored people, the neighbors of snch voters, the names of all of whom are un-
known to me, being instigated thereto by those who advocated your election, where-
by I received less votes by one thousand or more than I otherwise would and all such
voters by means of such intimidation were induced, contrary to their wishes, not to
vote at all or vote for you, and thereby the great majority of votes that I should have
received more than you at said election was reduced to the number of about five
thousand two hundred and fifty.

Third answer. I charge and aver that you have made the wholesale charges of all
kinds of crime and irregularities contained in your said notice without specifications
of persons or places, not because you had reason to believe that any one of them had
been committed to your injury, but with the deliberate purpose to evade the limita-
tion of the statute and to speculate upon any future discoveries of evidence, and so
you have made unlawful, vexatious, and fraudulent use of the notice and process
authorized by statute, and the same should be quashed and dismissed.

It will be noticed that the sufficiency of the contestant's allegations
in his notice of contest were challenged by the contestee in the begin-
ning, and have not been waived ; on the contrary, the coutestee has
insisted that the allegations in the notice of contest were entirely insuf-
ficient, and that the same ought to be dismissed for that reason.

It becomes necessary, in the first place, to pass upon the sufficiency
of the contestant's notice. The first specification relative to the repre-
sentation of the different political parties on the board of county com-
missioners of election calls in question the acts of the governor of the
State in his appointment of the commissioners of election. .

The machinery of elections by the Mississippi code is placed in the
hands of the governor. He appoints the county commissioners of elec-
tion, who in turn appoint the precinct election officers. The precinct
officers make return of the vote cast in the different precincts to the
county board, who in turn make their report to the secretary of state.

By section of the Mississippi election law the different political
parties are to have representation on said board. It ought to be carried
out in good faith, and the different political parties ought to be repre-
sented on the election board. It is a duty incumbent upon the executive
to see that this provision of law is carried out. It has been found in
many of the States of the Union that a provision in the election laws
similar to this is a safeguard against frauds and ballot-box stuffing.

The second ground alleged by the contestant is that certain election
districts were abolished and others established without complying with
and in violation of the law.

This allegation is clearly insufficient, as being too vague and general.
It would have been an easy matter to have named the precincts, and
pointed out how the acts complained of tended to prevent a fair election.
H. Mis. 35 19

290 DIGEST OF ELECTION CASES.

The third allegation is that in a portion of the counties comprising-
the Congressional district the registration of voters was not conducted
as required by law ; that large numbers of them were deprived of the
privilege of registration.

This allegation is likewise uncertain and vague, and wholly insuffi-
cient.

The fourth allegation is a repetition of the first, except that it applies-
to the precincts or voting places, and not to the counties, and need not
be further noticed.

The allegation in the fifth ground of contest is that in several of the
counties comprising the district persons entitled to register were refused
registration ; that the registration was discontinued prior to the time
contemplated by law ; and that in some of the counties the books were
removed from the place designated by law during the registration ; that
in consequence thereof persons were deprived of the right to register.

This allegation is too general. The particular places and the acts-
complained of should have been specifically set out. The same may be
said with reference to the sixth allegation in the notice of contest.

The eighth ground of contest challenges the form and print of the
tickets, but it is not pointed out specifically in what the illegality con-
sisted. And the ninth, tenth, eleventh, twelfth, and thirteenth grounds
of contest are open to the same objections.

The seventh ground of contest alleges that at many of the voting
places United States supervisors of election were not permitted to exer-
cise the duties of their office, and were prevented therefrom by unlawful
interference by the other officers of election (we presume State officers).
This charge is general, and it does not specify any particular voting
place in the district where these acts occurred ; but, perhaps, if any
such unlawful interference is shown to have existed at any of the voting
places, the committee would be justified in considering the allegation
amended so as to make it conform to the proof, unless it were shown
that thereby an injustice because of the insufficiency had accrued to
the contestee.

This disposes of each of the allegations of contest, and with the sin-
gle exception stated, under the uniform rulings of this committee and
the House, the notice of contest would be held clearly insufficient. See
Dutt'y vs. Mason, Forty-sixth Congress, and cases there cited.

We prefer, however, not to rest our decision of this case upon the
sufficiency of the pleadings, for if the testimony taken in the case de-
velops the fact that the sitting member was not elected, it would be our
duty to so report, although the contestant might not be entitled to his
seat, having failed to comply with the law with respect to the sufficiency
of his notice.

If it be shown that there was an unlawful interference with the United
States supervisors of election whereby they were prevented from dis-
charging duties which are committed to their hands by the law of Con-
gress, 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
officers 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 gen-
eral election. Fraud of all kinds can be detected, and ballot-box stuff-
ing can be stamped out.

B17CHANAN VS. MANNING. 291

This Government is founded upon the will of the majority. A ma-
jority is one more than half. When this is ascertained it is just as binding
as if maintained by a larger preponderating popular expression, and for
the purpose of maintaining the right of the majority to rule the super-
visors' law ought to be obeyed and enforced with scrupulous care. We
now proceed to examine the supervisors of election appointed in this.
Congressional district.

DE SOTO COUNTY.

W. J. Butler was examine/! as a witness and testifies that he was a
United States supervisor of elections for Lake Cormorant voting place,
in said county. His testimony is found at pages 11 and 12 of the Rec-
ord. We have examined his testimony and find no charge of fraud, in-
timidation, or ballot-box stuffing.

Charles Scott, one of the inspectors of that precinct, testifies that
everything was peaceful and quiet on the day of election. (Page 13 of
the Record.)

L. C. Clay, United States supervisor of Oak Grove precinct, De Soto
County, testifies to but one fact which is material, and that is that there
were seventeen colored men and one white man refused the right of
voting because they were not registered. (See page 26 of the Record.)

Felix Davis, another supervisor of election, for Home Lake precinct,
De Soto County, testifies to but one material fact, which is that one
James Brooks, a Democratic inspector, took the ballot-box, after the
ballots were closed, away with him and had it three-quarters of an hour
out of the sight of the supervisor, when it turned up at Mr. Holliday's
residence, some distance from the balloting place, and after supper pro-
ceeded to count the ballots ; that the tickets on top of the box when
opened all seemed to be Democratic tickets. During the counting con-
siderable confusion ensued in consequence of suspicious acts on the
part of the Democratic inspectors, and while the box was open a good
many bystanders gathered around it and prevented its being scrutinized
by this officer. They then proceeded to count the tickets, five at a
time ; at the close of the counting it appeared that there were 205 Dem-
ocratic tickets, 130 Republican, and no Greenback. Witness testifies
that during the counting he saw two Greenback tickets, which were
taken from the box by a Democratic inspector and again put back in
the box, but were not counted. He also testifies that there were 35 or
36 persons who offered to vote and were refused because they were not
registered, and that there were about 75 or 100 Republicans left the
polling place without voting because of the tardiness with which the
officers discharged their duty, and the vexatious manner in which the
time was wasted in asking questions and the like. He also testifies
that he was abused by one H. M. Douglass, one of the officers of elec-
tion, for being a Radical, and threats were made against him. That
there were four or five men continually around the box during the
count ; that they were swearing and exhibited their pistols in a threat-
ening manner. (See pages 31 and 32 of the Record.)

Silas Turner, one of the inspectors, in a measure corroborates the
testimony of Mr. Davis. (See page 33 of the Record.)

C. M. Haynie, supervisor for Olive Branch precinct, De Soto County,
testifies that 62 Republican voters were refused the right to vote because
they were not registered, and that three Democrats and three Green-
backers were likewise denied the right to vote for the same reason at
that precinct. (See Record, page 34.)

292 DIGEST OF ELECTION CASES.

J. S. B. Boone, United States supervisor at Depot box, testifies that
there were 30 voters at that precinct deprived of the right of voting be-
cause they were not registered. (See Eecord, page 36.)

E. A. Albritton, United States supervisor at Stewart's voting place,
De Soto County, testifies that there were ten who were refused the right
to vote because they were not registered, two of whom were Democrats,
the others Republicans. (See Eecord, page 39.)

T. J. East, United States supervisor at Love's Station precinct, De
Soto County, testifies that there were 15 persons refused the right to
vote at that precinct because of non-registration ; about three-fourths
were colored, one fourth white; that the ballot-box was taken at dinner
time out of his sight to Mr. Love's house, 250 yards away from the vot-
ing place. (See Eecord, page 40.)

B. F. Bailey, United States supervisor for Louisburg precinct, De
Soto County, testifies that the board adjourned at noon for an hour, and
about an hour after, the polls closed. He objected to the adjournment,
but they overruled him ; that there were 12 persons refused the right
to vote because they were not registered ; that he is a Greenbacker in
politics. (See Eecord, page 42.)

LA FAYETTE COUNTY.

C. E. Porter, United States supervisor at Abbeville precinct, testifies
that 36 persons were refused the right to vote ; they were all Eepublic-
ans. (See Eecord, page 100.)

B. P. Scruggs testifies that he was United States deputy marshal on
the 2d of November, 1880 ; that he lives in Oxford, State of Missis-
sippi ; that he was present at the election held there on that day ; that
within twenty steps from the entrance of the court-house, where the
voting was being carried on, Mr. Keyes, a prominent Democrat of that
place, and a member of the board of aldermen, was in charge of a can-
non which was being fired, and that the witness protested against the
firing of it ; that he was told by Mr. Keyes that he had orders to fire
it; that it was none of his business who gave him such orders ; that
they continued to fire the cannon until late in the afternoon ; that the
cannon was a regular six-pound field-piece. Witness also testifies that
the Bepublicaus were prevented from celebrating the victory gained by
them because they were told by two prominent Democrats, Mr. Craw-
ford and Mr. Skipwith, in the presence of Mr. Baker, chairman of the
Democratic county central committee, that " they might have the right
to do so, but they did not have the might," and to prevent a bloody
collision, they abandoned it. (See Eecord, pages 51, 52, 53, 54, 55.)

MARSHALL COUNTY.

Eobert Cunningham, supervisor of election for Chulahoma precinct,
testifies that the inspectors of election refused to let him act as United
States supervisor at that poll, and excluded him from the box. (See
Eecord, pages 80 to 91, inclusive.)

John S. Benton testifies that he was acting United States supervisor
of election at Holly Springs box ; that he canvassed and kept a com-
plete list of the voters as they voted, and that it did not agree within
50 with the list kept by the clerks of election, his count giving to
Buchanan 119 majority, while the count of the clerk of election gave to
Buchanan but 69 majority. (See Eecord, pages 75-79.)

Mr. E. J. Wilkersou testifies that he was United States supervisor

BUCHANAN VS. MANNING. 293

of election at East Holly Springs box ; that about 6 o'clock he stepped
out of the hall for a moment where the voting was being done, and
when he returned he found that 10 or 15 ballots had been added to his
list that he was keeping by some one ; that there were 60 more ballots
counted out of the box than there were persons on his tally-list; that
the door was locked and no one was permitted to be present during the
count, and he was not permitted to be in the room ; that there were
about 30 persons refused the right to vote because they were not regis-
tered ; that he did not see anything wrong during the voting, and is
not able to account for the discrepancy ; that he watched the election
as close as a hawk ever watched a chicken. (See Eecord, pages 91 to
93.)

Benjamin J. Jameson was United States supervisor of election at
Wall Hill precinct. He testifies that there were 27 voters refused the
right to vote because they were not registered. (See Record, pages
94-95.)

Charles B. Hardy, United States supervisor of election at Byhalia
precinct, testifies that there were 29 persons refused the right to vote,
27 of whom were colored persons; were refused for the reason that
their names were not on the poll-book. He knew personally 23 of
them ; they were Republicans. He testifies further that one Mr. Flow,
who was a Democratic inspector, was guilty of stuffing the ballot-box
by refusing to put a ballot into the box offered by one man, taking one
out of his pocket and substituting it for it, and in various other ways
tampering with the ballots. (See his testimony on pages 94 to 99, in-
clusive.)

Thomas Mull, who was United States supervisor of election at Mount
Pleasant precinct, Marshall County, testifies that there were 17 persons
who offered to vote whose votes were refused 14 blacks and 3 whites.
(See Record, page 109.)

Thomas F. Briggs, United States supervisor of election at Early
Grove precinct, testifies that there were 7 who offered to vote and were
refused because their names could not be found on the poll-book : they
were colored men and Republicans who claimed to have registered. He
is a Greenbacker in politics. (See Record, page 111.)

J. A. Austin, United States supervisor of election at Lane's Hill pre-
cinct, Marshall County, testifies that there were 12 persons refused the
right to vote ; that they were all black but two. Mr. Austin was a
Greeubacker. (See Record, page 126.)

PANOLA COUNTY.

John Fowler, United States Supervisor of election at Benson's Mill,
testifies that the election was fairly held. (See Record, page 139.)

W. W. Perkins, United States supervisor of election at Batesville
precinct, testifies that the voting was fair, free, and undisturbed; that
the counting was fair and correct. (See Record, page 140.)

D. F. Floyd, United States supervisor of election at Pleasant Grove
precinct, testifies that the election was fairly held. (See Record, page
145.)

P. Lanier, United States supervisor of election at Pleasant Mount
precinct, Pauola County, testifies that the election was conducted fairly.
(See Record, page 151.)

J. A. Small, United States supervisor of election at Sardis precinct,
Pauola County, testifies that there were 13 persons who were refused

294 DIGEST OP ELECTION CASES.

the right to vote on account of their not having registered. These were
Republicans. (See Record, page 157.)

W. A. Jones, United States supervisor of elections at Como precinct,
Panola County, testifies that there were 23 refused the right to vote
because their names were not registered. Most of these said they were
Republicans. (See Record, page 158.)

P. H. Lanier, United States supervisor of elections at Pleasant Mount
precinct, Panola County, testifies that there were 51 Republican tickets,
17 Democractic tickets, and two Greenback tickets thrown out on the
ground that they were defaced so that they could be distinguished
from the others. Some of them were torn on the end, some on the side ;
some were blotted ; some had little white specks on them, some little
black specks. They were put into a small box and nailed up, and put
into a ballot box ; the ballot-box was sealed, and both boxes sent to
the court-house. (See Record, page 170.)

G. P. Carrington, United States supervisor of elections at Senetobia
precinct, testifies that the election was fairly conducted. (See Record,
page 176.)

TATE COUNTY.

R. P. Powell, United States supervisor of elections at Cold Water
precinct, testifies that there were about 21 persons who were refused
the right to vote because their names did not appear on the poll-book.
About 16 of them were Republicans, and he thinks 2 were Green-
backers. (See Record, page 177.)

W. C. Briggs, United States supervisor of elections at Looxahoma
precinct, Tate County, testifies that the election was fairly conducted.
(See Record, page 179.)

TALLAHATCHIE COUNTY.

R. J. Littlewort, United States supervisor of elections at Xew Hope
precinct, testifies that the election was fairly conducted. (See Record,
pages 194-195.)

We have given an epitome of the testimony of the United States su-
pervisors of elections. These men were appointed at the request of the
prominent Republicans and Greenbackers of the district. It is fair to
presume that all of the active frauds committed in the district would
come under their notice, and that they would be able in their testimony
to expose all crimes committed. The labor imposed upon the commit
tee may have caused it to overlook a few of the other active frauds
complained of; but it is believed that the foregoing summary embraces
all that is important to be noticed. It is evident from the testimony
that some of the precincts before alluded to must be thrown out.
Those that we decide to throw out will be found at another place in
this report.

CONSPIRACY.

It has been strenuously contended that there is some evidence uncon-
tradicted and which tends to establish a conspiracy among the Demo-
crats of the district, which resulted in the returning of the vote as here-
tofore given for Manning, and the suppression of the true vote given
for the contestant and Mr. Harris, the Greenback candidate. This is
founded upon the fact that the colored vote in the district exceeded

BUCHANAN VS. MANNING. 295

the white vote, and that it was solidly Republican, and that it was
cast, or ought to have been cast, for Mr. Buchanan ; that the white
vote was divided between the sitting: member and the Greenback can-
didate, Mr. Harris. To establish this, census tables have been re-
sorted to, and other evidence has been introduced tending to show
that there was a general turnout of Republicans at the election, while
there was much indifference on the part of Democratic voters.

The case of Spencer vs. Morey, decided in Forty-fourth Congress,
Miscellaneous Cases, Vol. V, p. 433, adverted to by contestant in his
brief, cannot be regarded by us as an authority in this or any other case.
So far as we have been able to study it, it stands alone in the line of
contested-election cases. We do not believe that proof of one corrupted
vote goiug into a ballot-box is like " a drop of poison in a bowl of water,
which contaminates the whole of it, and cannot be separated from that
which remains pure."

The duty of the House is to separate the honest from the dishonest
Tote ; to purge all ballot-boxes of illegal votes ; to administer a rebuke
to the voters of any precinct who permit the voice of the people to be
stifled or suppressed ; and to enable the House to do this a contestant
should produce testimony of specific acts in order to show the wrong
which he complains of. It cannot be done by general, vague, and un-
certain allegations and charges. There is some proof introduced to es-
tablish these various points, but it is very general, and consists largely
of the opinion of witnesses, and is not of such a character that the com-
mittee feel justified in finding that a general conspiracy against the
ballot-box was practiced. It seems to your committee that if any such
practice prevailed the United States supervisors appointed for the pur-
pose of preventing such frauds could and would have given information
whereby they could have been specifically proven.

Your committee have not hesitated to recommend to the House the
throwing out of all the boxes where frauds, intimidation, or ballot-box
stuffing have been proven, but it would be unsafe to assume from the
testimony in this case that other frauds had been committed by the
election officers not specifically shown or proven in any tangible or defi-
nite manner.

ILLITERATE ELECTION OFFICERS.

There is no doubt in our minds, from the evidence in this case, that
many of the Republican precinct inspectors were appointed as such
because they could neither read nor write. This is, in our judgment,
a clear abuse of the law, and without the supervisors' law, which ena-
bles the opposing party to have men of their own selection to guard the
polls as supervisors, we would be strongly inclined to apply a corrective
for this manifest abuse of power.

With tickets exactly similar in all respects, or as nearly so as they
can be printed, and on the same kind of paper, it would not be a hard
task for election officers, if they were so disposed, to cheat an illiterate
man, who could neither read nor write, both in the vote and in the
count. All good people ought to discountenance and cry down evil
practices of this kind. We indulge the hope that it will not be repeated
in the future.

REGISTRATION LAW.

It appears in the evidence that very many electors in the various

296 DIGEST OF ELECTION CASES.

counties of this district were deprived of the right of voting because
they were not registered. The registry law of Mississippi provides the
manner in which registration shall be made. An unlawful refusal on
the part of the registration officers to register a qualified elector is a
good ground for contest; but, in order to, make it available, the proof
should clearly show the name of the elector who offered to register ^
that he was a duly qualified voter, and the reason why the officer re-
fused to register him, and, under the statutes of the United States, if
he offered to perform all that was necessary to be done by him to regis-
ter, and was refused, and afterwards presented himself at the proper
voting place and offered to vote and again offered to perform everything
required of him under the law, and his vote was still refused, it would
be the duty of the House to see to it that he is not deprived of his right
to participate in the choice of his officers.

Unfortunately in this case the proof falls far short of that which i&
required to enable the House to apply the proper remedy. That there
were many instances in which the officers of the registration arbitrarily
refused to do their duty is apparent. That many electors were de-
prived of their right to vote in consequense of this action is also appar-
ent; but in going through the testimony in this case, the number thus
refused registration, and refused the right to vote, if added to contest-
ant's vote, would not elect him. Neither is it shown sufficiently for
whom the non-registered voters would have voted had they been allowed
that right.

CHANGE OF POLLING PLACES.

There is some evidence tending to establish the fact that many of the
voting places were changed just prior to the election, and that much
confusion was thereby caused among the voters. Many of them were
not aware of the change, and in some instances they did not know
where the new polling places were established. Just how far this-
affected the result of the election we are unable to tell from the evi-
dence. We can, however, readily imagine how a resort to changing
the polling places just before an election in a county would cause such
confusion and unfairness as would defeat the popular expression of the
will of the people through the ballot-box. The evidence in this case
fails to establish the existence of such a state of affairs that we feel
justified in interfering with the election for this cause.

REJECTED POLLS.

De Soto County.

Manning. Buchanan.

Horn Lake precinct 205 130

Pleasant Hill precinct 169 75

Oak Grove precinct 131 98

Marshall County.

Chulahoma precinct 241 271

East Holly Springs precinct 292 220

Byhalia precinct 218 289

La Fayette County.

North Oxford preciotj .. >--_--- _-----; ;;; ;";;; Jg Jg

1,994 l,45f

BUCHANAN VS. MANNING 297

The above precincts are rejected because of specific acts of fraud,,
violence, and intimidation having been proven.

At North Oxford precinct the coutestee's party friends, on the day
of election, fired a cannon in close proximity to the polls, and kept it
np at intervals for quite a while. At Byhalia precinct the ballot-box
was stuffed. At the other precinct there were irregularities of various
kinds, chief among which was the exclusion of the United States su-
pervisor from the polls and the counting of the votes.

DONNELLY-WASHBURN CASE.

We are not willing to go as far in this case as the majority of the
committee did in the Forty-sixth Congress in the case of Donnelly vs.
Washburn. It was there held

The very fact that in these seven precincts Mr. Donnelly had been deprived by the*
city council of Minneapolis of all representation among the officers conducting the election
is, in itself, a very strong proof of conspriacy and. fraud.

We may remark that there is abundance of testimony in this case
showing that nearly one-half of the polls in some of the counties were
under the exclusive control of the party friends of the contestee ; and
it is stoutly maintained by the contestant that the refusal to register
qualified Eepublican voters, and that the appointment of incompetent
Republican election precinct officers at other polling places, and vari-
ous other acts and omissions on the part of the partisan friends of the
contestee, taken in connection with the fact that at many of the precinct*
only Democrats were appointed election officers, afford a strong reason,
why the rule laid down in the Washburn-Donnelly case should apply
in this.

The appointment of 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 in-
stances be evidence of fraud, and it might form an important link ift
the chain of circumstances tending to establish a conspiracy.

We are not satisfied that the evidence in this case establishes such &
conspiracy.

A word of explanation. When the Committee on Elections decided
this case in committee there were several members absent, as the record
of the committee will show. When the report was signed a majority of
the committee agreed to the minority report.

We therefore recommend the adoption of the following resolution :

Resolved, That the contestant have leave to withdraw his papera
without prejudice.

We concur in the conclusion reached by this report.

W. H. CALKINS.
GEO. C. HAZELTON.
JNO. T. WAIT.
S. H. MILLER.

F. E. BELTZHOOVER.

G. ATHERTON.
8. W. MOCLTON.
L. H. DAVIS.

298 DIGEST OF ELECTION CASES.

BUCHANAN vs. MANNING.

Mr. W. G. THOMPSON, from the Committee on Elections, submitted the

following

MINORITY REPORT:

The second Congressional district is composed of the counties of De
Soto, Marshall, Tate, Panola, La Fayette. Tallahatehie, Yalobusba,
JBenton, Tippah, and Union.

The election for members of Congress was held on the 2d day of No-
vember, 1880, and the candidates for Congress were Thomas W. Harris
(Greenbacker), George M. Buchanan (Republican), and Van H. Manning
(Democrat).

The motion of contestant, in which he set out his grounds of contest,
And the reply of contestee thereto, are as follows, to wit :

Notice of contest.

HOLLY SPRINGS, Miss., November 23, 1880.
Col. VAN H. MANNING :

You will take notice that it is my intention to contest your election as a member of
Congress for the second, district of Mississippi, as a result of the election held for the
election of a member of Congress on Tuesday, November 2, 1880, in said district, and
on the following grounds :

1st. That in a portion of the counties comprising said district such persons were not
Appointed, neither was such representation given to the different political parties in
aid counties in the appointments of county commissioners of election as was designed
And required by law.

2d. That in a portion of the counties comprising said district election districts are
Abolished and other election districts established without complying with and in vio-
lation of law.

4th. That at a large number of voting places in said district in the appointment
of inspectors of election such persons were not appointed, nor was such representation
.given (in making said appointments) to the different political parties, as was designed
and required by law.

5th. That in several of the counties comprising said district a large number of per-
sons lawfully entitled to register were refused registration, and that the registration
And transferring of votes was discontinued many days prior to the time contemplated
by law, thereby depriving a large number of persons lawfully entitled to register (or
transfer) from the right of registering or transferring and voting ; and that in a por
tion of said counties the registration books were for a time removed from the place
-designated by law for their keeping, thereby depriving a large number of persons (of
lawful right) of the privilege of registering (or transferring) and voting.

6th. That at a large number of voting places in said district many lawful voters were
not permitted to vote, their votes having been tendered and rejected by the inspectors
of election; that such unlawful interference and hinderance was permitted and prac-
ticed (such as is specially forbidden by law) as to obstruct and confuse the voters in
the act of voting, or to deceive and prevent a large number of voters from delivering
their ballots at the proper voting places ; that a large number of persons were per-
mitted to vote for you who had no legal right to vote.

7th. That at many of tne voting places United States supervisors of election were
not permitted to exercise the duties of their office, being prevented therefrom by the
unlawful interference of other officers of election, or from other sources, in violation
of law, and to such an extent as to prevent their ascertaining the result of the elec-
tion and from performing other duties required of them by law ; that no separate lists
of the names of voters were kept by the clerks of election, as was required by law ;
that the poles were not opened at the time required by law, were not kept open con-
tinuously from 9 a. m. till 6 p. in., as required by law, and that upon the closing of
the polls the counting of the vote and making up of returns was not done at the vot-
ing places nor at the time required by law.

8th. That at many of the voting places ballots were received and counted that were
not lawful ballots in form and print; tint inipectors of election rejected and refused

BUCHANAN VS. MANNING. 299

to count ballots that were lawful after the same had been lawfully deposited in the
ballot-boxes ; that inspectors of election (with knowledge of the fact at the time) pre-
tnitted ballots to be voted that were not lawful ballots ; that during the hours pre-
scribed by law for voting voters were harassed and disturbed in such a manner as to
prevent their voting in a free, fair, untrammeled, and peaceable manner.

9th. That the names of a large number of legally registered voters were not placed
upon the poll books (by the officers whose duty it was to place said names on said
books) used at many of the voting places, and that in consequence thereof said legally
registered voters were not permitted to vote, their votes being refused by the inspect-
ors of elections, said inspectors giving as a reason for such refusal to receive such
votes that the names of the parties applying to vote were not on the poll-books.

llth. That at a portion of the voting places the ballot-boxes were not opened in
public when the poles closed, nor was the vote counted in public, nor at the time re-
quired by law to be counted ; that in making up the returns a large number of ballots
were counted as having been cast for you, when in truth and in fact such ballots were
cast for other persons, or were ballots placed in the boxes in a manner not authorized
by law.

12th. That at many of the voting places a much larger number of votes were re-
turned as having been polled than were actually polled at said voting places ; that at
many of the voting places the poll-books for said places unlawfully contained the
names of a large number of voters, which voters had no right to a vote at such voting
places, but resided in other election districts, and that the names of said voters also
appeared on the poll-books of the voting places of election districts to which said
voters of right belonged.

13th. That at many voting places the election was conducted in many respects in
utter disregard of law and the rights of voters ; that the registration books and the
poll books of a portion of the counties and election districts in said district were at
divers and sundry times not in the custody and keeping of the proper lawfully con-
stituted officers, but were on divers and sundry occasions in the care and possession
of persons not lawfully entitled to such care and possession ; that at a portion of the
voting places lawful ballots that were cast for me were not counted forme, but were
<unlawfully) counted as having been cast for you, and were so returned by the officers
of election ; that there were a greater number of legal voters of said district who
voted (or who offered to register and vote), and who were unlawfully prevented there-
from, who desired me as their Representative in Congress than there were who de-
sired you as their Representative in Congress from said district.
Verv respectfully,

GEO. M. BUCHANAN.

Contcstee's answer.

Capt. GEO. M. BUCHANAN:

SIK : I am in receipt of a notice from you, dated November 23, 1880, of your inten-
tion to contest my election as a member of Congress of the 2d district of Mississippi, as
a result of the election held on the 2d November last.

To said notice I make the following answers, to wit:

Firbt answer. Protesting against the truth of the allegations in said notice, I object
.iiui suy that said notice is so insufficient and defective that I need not deny or admit
the allegation thereof, for the reasons, to wit, said notice does not specify particularly
the grounds upon which you rely, and gives no reason for failing so to do.

2d. The allegations are only conclusions of law and general averments of wrong-
doing in some undefined portions of the district, by unnamed election officials of pre-
cincts not specified, in unnamed counties, or by persons not named or described, and
in places and by means not specified, and in violation of laws and the rights of others
not designated.

3d. Your allegations are so vague and uncertain that I am not informed as to the
persons or officials whom you accuse of crime, nor where committed, nor do you aver
that such wrong doings were not instigated by you or that they were known to or
acquiesced in by me, or that the result of the election was changed by reason of the
matters set forth.

Second answer. Without waiving any objection to the manifold vital defects of said
notice, but reserving all benefit and advantage thereof, I deny each and every ground
of contest set forth in said notice, and deny each and every allegation therein con-
tained, and aver that throughout said Congressional district a free and fair election

300 DIGEST OF ELECTION CASES.

was held in all respects, except that in the county of Marshall and other counties, at
every precinct, divers colored voters who wished to vote for me for member of Congress
were deterred and prevented from doing so by reason of the threats of personal vio-
lence and other means of intimidation used and employed by other colored people, the
neighbors of such voters (the names of all of whom are unknown to me), being insti-
gated thereto by those that advocated your election, whereby I received less votes by
one thousand or more than I otherwise would ; and all such voters by means of such
intimidations were induced, contrary to their wishes, not to vote at all, or to vote for
you, and thereby the great majority of votes that I should have received more than
you at said election was reduced to the number of about five thousand two hundred
and fifty.

Third answer. I charge and aver that you have made the wholesale charges of all
kinds of crimes and irregularities contained in your said notice without specification*
of persons or places, not because you had reason to believe that any one of them had
been committed to your injury, but with the deliberate purpose to evade the limita-
tion of the statute and to speculate upon any future discoveries of evidence, and so
you have made unlawful, vexations, and fraudulent use of the notice and process
authorized by statute, and the same should be quashed and dismissed.
Respectfully, yours,

VAN H. MANNING.

WASHINGTON, December 20, 1880.

It will be observed that in the beginning the contestee claimed that
the notice of contest was insufficient, and has insisted for that cause
that the case should be dismissed.

In whatever manner any failure of proper notice might affect the right
of contestant in this case (for insufficiency of pleading), if upon exami-
nation of the facts in the case it appear that the sitting member is not
entitled to a seat it is the duty of the committee to so report.

It appears that the race in this district was strongly contested by
three candidates, representatives of the three political parties of the
country.

ORGANIZATION OP PARTIES.

We will first notice the evidence bearing on the organization of each
of the parties in the district at the time of this election.

We would prefer to eliminate from our report all reference to the
organization of voters by colors, but as this question is fully developed
by evidence we cannot well avoid it.

The contestee in his answer evidently relies upon the support of a
large number of colored voters to bear out his right to a seat, and it is
in his answer to notice of contest that the division of electors by colors
is first referred to in the case.

We have in evidence conflicting statements as to the number of voters
in the district.

On page 393 of Eecord the contestee places in evidence a recent State
census of Mississippi, and on page 199 is found the United States census
for 1880, placed in evidence by the contestant.

Taking the latter, and applying the general rule of one voter to every
five inhabitants, there are 19,743 colored voters and 17,155 white voters
in the district, showing a majority of colored voters of some 2,600 while
the former shows that there are 19,780 white voters and 18,998 colored
voters in the district. We have examined the facts and comparisons
made in contestant's brief (page 50) in relation to the State census, and
are disposed to be governed by the United States census. As to man-
ner and spirit of the canvass, it is the universal testimony that each
party was active and zealous in its efforts to obtain a full vote, and
that the canvass was conducted with an industry on the part of all
three parties seldom developed in election cases. That each party made

BUCHANAN VS. MANNING. 301

most extraordinary efforts to bring every possible voter to the polls is
shown all through the evidence. And for that reason we do not deem
it necessary to refer to it in detail. Nor is the manner in which the
voters were organized and came to the polls less fully shown. Espe-
cially is it developed in the evidence of witnesses introduced by contest-
ant upon this point.

We are disposed to give more than ordinary weight to the evidence of
witnesses who (politically) are not supposed to have any special interest
in the result of this controversy. We therefore submit the evidence as
follows, which is fully corroborated throughout the testimony. See
Record, p. 19, q. 9 ; p. 22, q. 6 and 7 ; p. 26, q. 8; p. 23, q. 3; p. 35, q. 3 ;
p. 40, q. 3 ; p. 464, q. 16 ; p. 445, q. 405 ; p. 474, witness Settle ; p. 476,
witness Matthews; p. 51, q. 3; p. 210, witness Nunnally; p. 189, q. 1;
p. 185, q. 5 ; p. 193, q. 8 ; p. 56, q. 10.

Page 205 :

JOHN S. BURTON, being sworn according to law, testifies as follows :

Question 1. You have been heretofore examined in this case, have you not T An-
swer. I have.

Q. 2. State what your personal relations are to Mr. George M. Buchanan, the con-
testant in this case, and what they were during the canvass of 1880 : also state your
connection with the canvass of that period, and the position that you occupied then
to Mr. Buchanan in the canvass. A. I am a close friend to Mr. Buchanan. At the
commencement of the campaign I agreed to take charge of his Congressional candidacy,
in which I employed speakers in the district, and employed speakers out of the district
to come in this district to make speeches for him. And I attended to the organiza-
tion of clubs and to all campaign matters in which he was interested.

Q. 3. State, as well as you can, the manner in which the campaign was conducted
throughout the district on the part of the Republicans, giving the names or numbers
of speakers and number of speeches made, as near as you can. State time of com-
mencement of canvass ; also state character of Democratic and Greenback canvass.
A. Our campaign was conducted very actively. The canvass commenced about the
15th of July, 1880. Capt. William Spears, one of the electors of the State at large,
accompanied by Captain Buchanan, spoke at the principal connty seats in the west-
ern part of the district. Our meetings were extensively advertised and largely at-
tended. They spoke in Tallahatchie, Pauola, Tate, De Soto, and Ben ton Counties.
About the same time Col. R.W. Floirney, one of the State electors at large, commenced
the canvass in the eastern part of the district, speaking at New Albany. The Repub-
lican convention was held at Oxford, August 15, when Captain Buchanan was nomi-
nated. It was a Tery largely attended convention ; every county was represented with
but one exception, On or about the first of September the canvass was renewed. Col-
onel Mister, elector for fifth district, J. T. Settle, elector for second district, and W.
F. Frazee, alternate elector for first district, all came into this district and kept up
the canvass incessantly until the election. In addition to the prominent speakers
mentioned, Hon. James Hill, chairman State executive committee, Col. Thomas Hunt,
United States marshal, and Maj. W. H. Gibbs, all of the very best order of Republican
speakers, spent some two weeks in canvassing the district ; and, in addition, Captain
Buchanan made speeches night and day for the entire time, commencing about the
15th of September and including a day orso before the election. In addition to these
speakers there were local speakers constantly engaged in the canvass all the time in
prominent precincts in the district, and the canvass was conducted with the same
activity and industry on which campaigns were conducted while the Republican party
were in power in the State. No effort was spared by myself or Captain Buchanan, or
his friends, to see that every vote in the district was brought out. The Democrats
did not open their campaign for some weeks after the Republicans commenced, and so
far as my observation went their campaign was not conducted with as much as usual
activity until toward the close of the canvass. The Greenbackers also made a thor-
ough and active canvass of every part of the district. As near as I can approximate,
there were from two hundred and fifty to three hundred Republican speeches made
in the district. I estimate this by the number of speeches and the time they occu-
pied.

Page 331 :

W. S. FEATHERSTOX, having been duly sworn, testified as follows, to wit :
Interrogatory 1. How long have you lived in the State of Mississippi and the county
of Marshall f What official positions have you held, if any? Answer. Forty years

302 DIGEST OF ELECTION CASES.

in the State of Mississippi and twenty-three in the county of Marshall. I have been
a member of the legislature and a member of Congress in the House of Represent-

Int.2. What is your acquaintance with the people of Marshall County, extensive
or otherwise ? A. My acquaintance with the people of Marshall County has been
pretty extensive, and is now.

Int. 3. What is your profession ; to which political party do you belong, and what
is your official position in your party, and what was it during the political campaign
of 1880? A. I am a lawyer by profession. I am a member of the Democratic party.
I am now, and was during the campaign of 1880, chairman of the Democratic execu-
tive committee of Marshall County.

Int. 4. What was the character of the political contest of 1880 in this Congressional
district ; was it one in which little interest was manifested by both Republican and
Democratic parties, or otherwise ? A. It was an interesting campaign, and one in
which both the Republican and Democratic and also the Greenback party took con-
siderable interest, especially in Democratic and Republican parties.

Int. 5. What was the character of the Democratic campaign of 1S80 in Marshall
County, active or otherwise ; was or not the Democratic party of the county thor-
oughly organized ? Which party made the most active campaign ? A. The Demo-
cratuTcampaigu in Marshall County in 1880 was active and enthusiastic. I thought
the party was well organized. The Democratic party made the most active campaign.
I am certain that it did ; and in every neighborhood in the county we had every local
committee appointed that we thought was necessary to organize the party thoroughly
and to bring out its full vote such a campaign as we have been in the habit of inau-
gurating in this county for several years past.

Page 200 :

Dr. R. J. LYLES, being duly sworn according to law, testified as follows :

Question 1. Where do you reside ? How long have you resided in Marshall County f
State your occupation. Of what party are you a member, and to what extent were
you engaged in the interest of your party in campaign of 1880 ? State to what extent
the Greenback party of this county is composed of white or colored people, from which
party it drew the most votes at last election (Democratic or Republican party), and
to what extent from either.

(Objected to by the contesteo upon the ground that it is not rebutting testimony,
but original.)

Answer. I reside at Watson P. O.> Marshall County, Miss. ; lived in this county
about eleven years ; am a physician by occupation. I belong to the National Green-
back party. I took part in the canvass, actively canvassing, making speeches in this
county. The Greenback party in this county, to my best information, is composed
principally of the white people, at least four-fifths of the Greenback party.

Q. 2. Were you not a close personal friend of Col. T. W. Harris, the Greenback can-
didate for Congress, and did you or not manage the canvass in this county for him, or
did you not do it chiefly ?

(Objected to on same ground as to No. 1.)

A. I am a close personal friend of said Col. T. W. Harris. I took an active part in
his behalf, and managed his interest in the western part of the county, particularly
that section where I reside.

Q. 3. At or about the close of the canvass did anything occur to induce you to ad-
vise Colonel Harris, the Greenback candidate, to withdraw from the canvass, and did
you or not so advise him ? And, if so, state freely and particularly the reasons for so ad-
vising him, and from what source you received your information inducing you to give
such advice. A. Something did occur. A short while before the election, perhaps a
week, I had a conversation with Col. Van H. Manning, the candidate of Democratic
party for Congress, in which he assured me the colored voters of the district were solid
for Buchanan, the Republican candidate for Congress. He requested me to write to
Col. T. W. Harris, the Greenback candidate for Congress, that he (Colonel Harris)
was " gone up," and to come home. I assured Colonel Manning that if his statement
was correct I would prefer that Harris would withdraw from the canvass. Colonel
Manning said that, according to his best knowledge and judgment, his statement was
correct. On that assurance, together with my personal knowledge of the fact that the
colored voters in my neighborhood were solid for Buchanan, I telegraphed Col. T. W.
Harris at Batesville, Miss., that his chances here were compromised ; that the colored
voters were solid for Buchanan. Colonel Manning brought said telegram to Holly
Springs for me. He afterwards assured me that he sent the telegram to Colonel Har-
ris.

Q. 4. Was it or was it not a fact, at the time that Colonel Manning made the fore-
going statement to you, that he had canvassed the entire ten counties comprising this
Congressional district, and that the canvass absolutely closed within a few days after
said conversation referred to f

BUCHANAN VS. MANNING. 303

(Same objection as before.)

A. He stated to me that he had made an entire canvass of the district, and that the
statement made to me was founded on his information that he had gained during the
canvass. This was but a fe\v days before the election.

Q. 5. In your reply to question three, do you mean to refer exclusively to the col-
ered race or otherwise I A. I mean the colored vote exclusively.

Q. 6. State to what extent, if you know, the colored vote that voted was cast for
Buchanan, or other candidates (as applied to precincts in the western part of the
county), at the last election T A. From all information I have, it was a solid Repub-
lican vote for George M. Buchanan for Congress in the precincts referred to. So far
as my personal knowledge goes, it only refers to my own box.

Q. 7. To what extent is the negro vote in the district referred to Republican ? A*
Pretty nnanimous.

Page 214 :

Col. THOS. W. HARRIS, being sworn according to law, testifies as follows :

Question 1. State where you reside ; how long you have there resided ; your occu-
pation ; how long you have pursued said occupation, and to what extent in the sec-
ond Congressional district of Mississippi. Answer. I reside in Holly Springs, Miss.,
and have resided there since about the year 1850 ; I am a lawyer; have been upwards-
of thirty years, and engaged in the duties of my profession in several of the counties
of the second Congressional district since I have lived in Holly Springs ; my practice
has been general and quite extensive.

Q. 2. With what political party have you been identified with prior to the year
1879? State also what official position you held in said party during the year 1*876,
and since that time. A. I was a member of the State executive committee of the
Democratic party in 1877 and 1878 ; and also chairman of the executive committee of
that party for the county of Marshall; and was a member of and acted with the Dem-
ocratic party until 1879; since which time I have been acting with the National
Greenback Labor party.

Q. 3. Were you a candidate for office at the election November 2, 1880 ? If so, state
for what office; if you made a canvass of the second Congressional district, to what
extent ; also state the extent of your acquaintance with the politics of the voters of"
said second Congressional district. A. I was the candidate of the National Greenback
Labor party for Coogress for the second Congressional district at the election in No-
vember, 1880, and as such canvassed the district generally ; my knowledge of the poli-
tics of the voters of said district is such as such a canvass would give, in connection
with my long residence in the same, engaged in my profession, and having taken a
general interest in politics since I attained my majority.

Q. 4. What class of persons constitute the three political parties in this district f
State the different divisions as near as you can as to color. A. A very great majority
of the colored voters of the district belong to the Republican party ; the white voters-
are divided generally between the Democratic and Greenback parties ; colored voters-
who act and vote with the Democratic party are in my opinion very few in number;
in the election of last year my observation and information lead me to believe that
out of the thirty-five hundred and eighty-five votes reported to have been cast for the
Greenback candidate for Congress in the said district there could not have been more
than about one thousand of them colored, most of whom live in Yalobusha County ;
the white voters who act with the Republican party in said district I don't think are
at all numerous.

Q. 5. Have or have yon not, since the election, fully and particularly informed your-
self as to the number of votes you received at said election at each of the various
counties and precincts in said district ? A. I have seen statements purporting to be
authentic as to the number of votes reported to have been cast for me, and have
heard statements from friends upon the same subject.

Q. 6. Did you witness just preceding the election a conversation between Colonel
Manning, candidate for Congress, and Dr. A. M. Lyle on the subject as to how and
for whom the colored voters of this district were going to vote T If so, state what
was said between them on the subject.

(Objected to on the ground that the question is original and should have been asked,,
if at all, during the time allowed to take testimony-in-chief.)

A. In a dicussion between Colonel Manning and myself at Watson, in this county,
I think the night preceding the day of the election, the question arose as to a report
that Dr. Lyle had abandoned me and intended to support Colonel Manning, and that
Lyle had sent me a dispatch suggesting my withdrawal from the canvass because the
colored vote of the district had concentrated upon [Captain Buchanan, the Republican
candidate for Congress. Dr. Lyle was present and stated to the audience, in my pres-
ence and Colonel Manning's, that he (Lyle) had met with Colonel Manning and was
told by him to write or telegraph me that I had better withdraw, as the colored vote
was all going for Buchanan: that he (Lyle) replied such was the condition of things-

304 DIGEST OF ELECTION CASES.

in his neighborhood, and that upon the statement made to him by Colonel Manning
be had accordingly telegraphed me at Batesville, in Panola County, that the negroes
were all going for Buchanan, or words to that effect; that he sent me the dispatch
based alone upon what Manning had told him, except as to the condition of things
in his own neighborhood ; that he did not profess to know what was the condition
of affairs beyond his own neighborhood. I never received the foregoing dispatch at
Batesville, having left before it was received. The foregoing is substantially what
occurred as I remember it.

Q. 7. What proportion of the white vote of this Congressional district are opposed
to the 'Democratic party, and what proportion of said vote would vote against the
candidates of said party at an open, fair election, and upon full assurance that their
votes would be counted as cast ?

(Objected to as irrelevant, incompetent, and illegal.)

A. I can only answer as a matter of opinion. It would depend very much upon the
questions involved and what parties were engaged in the contest. I think, however,
that one-fourth or one-fifth of the white voters of the district are opposed to the pres-
ent policy and management of the Democratic party and would cast their votes
Against it.

Re-examined :

Q. I. State what proportion of the colored vote in this district voted the Demo-
cratic ticket, and what proportion of the white vote voted the Republican ticket, as
near as you can in numbers as to each party, as estimated from your information
gained during the canvass. State fully.

(Objected to on ground that it is original, and not in rebuttal of anything drawn
out on cross-examination, and as incompetent.)

A. I can only give an opinion in answer to this question. From all the information
in my possession, my opinion is that there were fully as many, and I think more, white
votes cast for the Republican candidate for Congress than there were colored votes
for the Democratic candidate. When the extraordinary efforts made by the Repub-
lican party had succeeded in reorganizing the colored vote, my opinion is that the
work done by that party was pretty thoroughly successful. I know of no county in
the district in which the Greenback party succeeded in maintaining its control over
the colored vote, except in Yalobusha. In addition I am satisfied that some white
Greeubackers had become so much incensed in consequence of the warfare waged
against them and their party by the Democratic party that, despairing of the success
of their own candidate, they voted for the Republican candidate; and further than
this deponent saith not.

Q. 2. What is the standing of the contestant, George M. Buchanan, in his party
nd as a citizen f A. I think his position in his party is a prominent and controlling
one, certainly in his section of the State. As a citizen, he is kind, charitable, gener-
ous, and public-spirited, and I know nothing to his detriment except that he belongs
to what is known here as the Radical party, and that he became a candidate for Con-
gress in the last election to my detriment. As a candidate for office I am satisfied
that he is considerably stronger than his party, in this county particularly. As a
neighbor he is equal to any man.

X Q. 4. You have been asked as to the standing and character of George M. Bu-
chanan as a politician and as a gentleman. Please state as to the character and
standing of Van H. Manning in both respects. A. Having been three times nomi-
nated by his party as a candidafe for Congress, and returned as elected, is a sufficient
answer as to the character and standing of Van. H. Manning with his party, lu all
the elements of kindness, generosity, and charity, he is the equal of any infinitely
too much so for his own good.

Witness Makon (page 106, Becord) :

Q. 7. Do you know of a newspaper published in Holly Springs known as the Holly
Springs " South"? If so, state the political party that that paper advocates.

(Question objected to and ruled ont.)

Q. 8. Did you or not read in the Holly Springs " South," a Democratic newspaper
published in Holly Springs, and published on December 8, 1880, the following lan-
guage :

[The South, Holly Springs, Miss., December 8, 1880.]
BUCHANAN TO CONTEST.

It seems to be generally believed by our exchanges that Buchanan will contest for
Manning's seat. If he ever gets it, it will be by an utterly unscrupulous partisan
decision by the House of Representatives. Never was there a fairer election in any
district of the State than that of this, when Manning was elected. T he negroes gener-

BUCHANAN VS. MANNING. 305

voted for Buchanan. The whites divided between Manning and ffarri*. Every man
of the three parties voted as he pleaded, except those who voted for Buchanan, and
they went a* a flock, under instructions, by which they were easily fooled iuto voting
for him. The ballots were printed in accordance with the law of the State and counted.
Buchanan was beaten by not getting votes enough that is all. He will have to be
elected at Washington, if he ever is. It will not be by votes of the people of Mis-
sissippi. And when Congress seats Buchanan the second Congressional district of
Mississippi will have no Representative.

(Question objected to and ruled out as before, and question not permitted to be
answered.)

Q. State whether or not you know the editor of the Holly Springs "South," and his
character for political intelligence; if so, state his character for political intelligence.:
A. I know Mr. Tyler when I meet him, and his character for intelligence is good.

Q. 9. State, if you know, in what party interest that newspaper, the Holly Springs
4< South," acted during the campaign of 1830, and what candidate for Congress it ad-
vocated.

(Objected by counsel for contestee as being irrelevant, and objection sustained and
question not permit ted to be answered.)

For reasons which will hereafter appear apparent, we have briefly
referred to the evidence of the voting strength of each of the political
parties ; the class of voters from which each party was organized ; the
canvass made by each ; and the manner in which each party's vote
turned out and came to the polls.

INTIMIDATION OF COLORED VOTERS BY CONTESTANT'S FRIENDS.

We have very carefully examined the evidence relating to the intimi-
dation of colored voters by contestant's friends (as is alleged by con-
testee, in his reply to notice of contest), and do not find that the evi-
dence discloses a single instance where a colored voter was deprived of
voting for contestee by reason of threats or intimidation from any source.
The evidence discloses the fact to be that contestee received but few of
the votes of colored voters, and that there was by far a larger number
of white voters who voted for contestant than there were colored voters
who voted for contestee. The vote as returned is stated as follows,
upon page 393 of the Eecord.

Harris, Greenbacker 3,585

Buchanan, Republican 9,996

Manning, Democrat 15, 255

The evidence shows there to be about 19,700 colored voters and about
17,100 white voters in the district, with some 2,600 more colored voters
than whites ; that thecolored voters are Republicans, with few exceptions,
and so voted (or made the eifort to vote), as is shown to be the case also
with quite a number of white voters; and that the white voters gener-
ally were divided (in a measure) between the Democratic and Green-
back candidates. Granting that the canvass was equally thorough and
active on the part of all parties, and that the voters generally came to
the polls, we cannot resist the conclusion that on the day of the election
the voting strength of contestee's party was in a minority to the extent
of 5,000 to 0,000 voters.

Yet notwithstanding this evident condition of the two parties on the
day of the election, we are confronted with a return, heretofore referred
to, giving the contestee a majority of some 5,300 voters. Were we to
take the tstate census as evidence in reaching a conclusion on this point,
contestee's party would still be in a large minority.

There are only 17,155 white voters in the district. The proof is clear
that Harris, the Greenback candidate, received 3,585 votes, of which
(not exceeding) 1,000 were colored, leaving him 2,585 white votes.
H. Mis. 35 20

306 DIGEST OF ELECTION CASES.

It is further clearly proven that quite a number of white voters did
not go to the polls. (See evidence, Howze, p. 19 ; Newsom, p. 22.)

It is further proven that contestant received a number of white votes,,
and yet, according to the returns, the coutestee is credited with 15,215
votes, which is manifestly impossible under the circumstances.

On the other hand, the contestant is credited with only 9,996 votes,
while there are 19,800 colored voters in the district, who, according to
the proof of contestee's own friends, were all solid for contestant, and
came to the polls and voted or ottered to vote.

This again is a manifest impossibility. This at once throws suspicion
on the fairness of the count, and when the whole of the election ma-
chinery was in the hands of contestee's friends the burden of showing-
the fairness of the count should be upon him when a reasonable doubt
of fairness has been established by the proof. This brings us to a con-
sideration of the evidence tending to show how this result was brought
about (after first examining the election laws of Mississippi bearing on.
the points in controversy).

ELECTION LAWS, CODE OF 1880.

SEC. 105. The books 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, if 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 t-aid clerk.

The clerk of the circuit court of each county shall register on the registration book
of the election district of the residence of such person any one entitled to be regis-
tered as an elector, on his appearing before him, and taking and subscribing the oath
required by article seven aud section three 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.

Section 121 of the Mississippi Code of 1880 is as follows :

Two months before any general election and any election of Representatives 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 lieu-
tenant-governor is performing the duties of governor, or if there is no lieutenant-
governor, 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 mtn, who shall not all be of tlie same political party, if such men of different
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 com-
missioners shall severally take the oath of office prescribed by the constitution and
file it in the office of chancery clerk of the country, who shall preserve such oaths.
While engaged in their duties the said commissioners shall be conservators 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 ap-
pointed.

Section 124 of the Mississippi Code of 1880 is as follows :

On the last Monday of October preceding a general election, and five days before
any other, the commissioners of electi-n 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 tbe 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
illegally denied. All complaints 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
registration to be corrected, if necesxary, so an to yhow 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 clerk of the circuit court shall attend such commissioners, if so re-
quested, and shall furnish them the books of registration and the poll-booke. and

BUCHANAX VS. MANNING. 307

hall 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 elections shall appoint three persona
for each election precinct to be inspectors of the election, who shall notall be of the same poHt-
icalparty, if suitable persons of different parties are to be had in the election district, and if
any person appointed shall fail to attend and serve, the inspectors present, if any,
may designate one to fill his place, and if such commissioners of election shall fail to
make such appointment, and in case of 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 opened
at 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 inspectors shall publicly open the box and
number the ballots, at the same lime reading aloud the names of the persons voted for, which
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 any office than snch elector had a right to vote for, such ballot shall
not be counted.

In brief, the circuit clerk of each county is the sole registrar of all
the voters. The registration books are records, and are required to be
kept in his office. The registrar is required to register voters any day
in the year that the voter may choose to apply for registration, and every
person desiring to register is required to conie to the county seat for
that purpose, and must make oath and sign the registration books.

The State board, consisting of the governor, lieu tenant-governor, and
secretary of state, appointthree election commissioners for each county,
who are to be selected for their competency and suitableness to dis-
charge the duties required of them. They mast not all be chosen from
the same political party.

These county commissioners are required to meet at the office of the
registrar immediately preceding every election and correct the regis-
tration and poll books, " so as to show the names of all qualified electors
in the county." The registrar is required to assist them in the discharge
of the latter duty. These commissioners appoint three inspectors to each
voting place in the county, who must be selected from electors suitable and
competent to perform the duties of inspectors (count the vote, make out,
certify the returns, &c.), and these inspectors are to be selected from
different political parties.

The election commissioners hold in their hands the entire election
machinery of their counties; they establish and abolish election precincts
at will; they revise the registration and poll books, erasing names there-
from as occasion demands ; they sit as a court to decide appeals from
the circuit clerk when complaint is made that registration is improperly
refused ; they appoint all election officers in their counties, including
peace officers to preserve order at the voting places 5 they receive, com-
pute, 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. Will it be pretended that men who are utterly
illiterate are "competent and suitable" for so important an office, or that
their appointment is a compliance with the law in any respect ?

Before proceeding to review the acts of the election officers, it is well
enough to call attention to a circular issued by General Featherstone
at an early day of the canvass. The importance of this circular is in the

308 DIGEST OF ELECTION CASES.

fact that General Featherstone is contestee's own witness, and is a man
of national character, having been a Bepresentative in Congress before
the war, and now circuit judge in the State of Mississippi. (See his evi-
dence, Record, p. 133.)
Page 334 :

X Int 13 Did you as chairman of the Democratic committee, and by authority of the
committee.'isaue and cause to be published the following call, which I here append
as part of this question, marked G. M. B. ?

MASS CONVENTION.

There will be a mass convention of the Democrats of Marshall County at the court-
house in Holly Springs, at 11 o'clock a. m., on Saturday, the 24th day of July, 1880,
for the purpose of electing delegates to attend a district convention m Water Valley,
Miss., on the llth day of August, 1880, to nominate a candidate for Congress.
Let everybody come.

Let the enemy know in the beginning that in this campaign the Democracy will win at all
hazards.

Bv order of the executive committee.

W. S. FEATHERSTONE,

Chairman.
ARTHUR FANT,

Secretary.

(Indorsed:) G. M. B.

A. The executive committee instructed the secretary to prepare and publish a call
for the meeting indicated in the card, and the call was prepared and published by the
secretary.

The foregoing may very properly be considered the initial step on the
part of contestee's friends towards carrying the election in the manner
indicated by the circular.

As we have said in another Misssissippi case Lynch vs. Chalmers
decided in this Congress

The general doctrine in construing election statutes is, that they are to be construed
liberally as to the elector, and strictly as to the officers who have duties to perform
under them. A statute directing certain things to be done by election officers ought
to be followed by them with a high degree of strictness, but duties to be performed
by the electors, as declared by statute, are directions merely.

We do not propose to discuss the great and vital importance of au
impartial registration of voters where it is made a condition precedent
to the exercise of the elective franchise, as is the case under the consti-
tution and laws of Mississippi.

APPOINTMENT OF ELECTION OFFICERS.

The evidence is very full that both the Republicans and Greenbackers
of the counties challenged made every effort by petition and otherwise
to secure the appointment of such (reasonable) number of both county
commissioners and also precinct inspectors as they were fairly entitled
to under the law, and it is no less clear that their wishes were almost
entiiely disregarded, especially in counties having large Republican
majorities prinw, facia. We submit the following brief of evidence on
this point :

DE SOTO COUNTY.

J. F. Pratt, on page 24, testifies that "the county board of election commissioners
was composed of two well-known Democrats and one colored man, -neither of whom
were identified with the Republican party ; the colored man can neither write nor

BUCHANAN VS. MANNING. 309

read writing, and that the Republican county committee endeavored to secure the
appointment of Newson, a well-known and competent Republican, as commissioner,
and failed."

See also testimony of Nelson, on page 37, showing "that an ignorant colored man
was appointed commissioner over protest of Republicans of the county ;" and testi-
mony of Anthony Mathews, the commissioner appointed, on page 28, showing that he
could not write or read writing, and knew nothing of the correctness of the returns
except what was told him by the other commissioners.

LA FAYETTE COUNTY.

B. P. Sciuggs, an intelligent white Republican, was recommended for commissioner
by his party friends, and a negro, "Thomas Jefferson, AA'ho has very limited educa-
tion, if any, was appointed" (see page 51). Testimony of Jefferson, the colored man
appointed commissioner, page 71, shows that no Republican recommended his appoint-
ment, and that he was appointed on recommendation of the chancery clerk, county
treasurer, and other prominent Democrats : and that he was not consulted by his
co-commissioners in the appointment of election officers ; and his evidence will show
his utter unfituess for the position. The testimony of Beaulaud, page 311, shows that
he and one R. S. McGowan were the two Democratic commissioners ; and the testi-
mony of E. Nunnally, page 211, shows the unscrupulous character of McGowau, that
he said to witness that he would ".-tuff ballot-boxes to beat the Republicans," and
this witness testifies that he would not believe McGowan on oath.

TALLAHATCHIE COUNTY.

The testimony of T. W. Turner, pages 186-7, shows that no regard was paid to the
wishes of Republicans in appointing commissioners; that two Democrats and one
incompetent colored man v\ ere appointed. The Republicans desired the appointment
of Littlewort, whose character for intelligence will be shown by his evidence on pages
194-5. The want of educational qualifications for the position of commissioner is
shown by the evidence of the colored commissioner himself, on pages 195-6, which
discloses the fact that he could not read the manuscript of his evidence then being
given.

TATE COUNTY.

In this county, as will be seen in the evidence of Wright on pages 172 to 174, two of
the commissioners appointed were Democrats, and the other a Greenbacker, and that
when Jones, the Greenback commissioner, failed to secure the appointment of the
election officers he proposed, left the board, saying he would have nothing more to
do with it, and that only four of the election officers for the county recommended by
the Republicans were appointed, and only two of them served. (See testimony of
Shauds, page 402. )

MARSHALL COUNTY.

In this county, as will be shown by the evidence of McCorkle, on pages 123 to 125,
two Democrats and one competent colored Republican were appointed commissioners,
and that the Republican commissioner resigned on account of the disregard of his
rights as a commissioner by his colleagues, in abolishing election precincts, and in
transferring others, without his presence or consent, and in signing his name to no-
tices of the same, thus leaving the election to be managed by the two Democratic
commissioners; and on pages 336 to 339, in the testimony of Mr. Wallace, one of the
Democratic commissioners, and a brother-in-law of the Democratic candidate for Con-
gress, it is shown that some time in October, after serving as commissioner nearly the
entire canvass, and after the work of abolishing and transferring electionprecincts had been
accomplished, Mr. Wallace also resigned his office out of considerations of delicacy,
a'.d his successor was afterwards appointed, but it does not appear that any succes-
sor was appointed to the Republican commissioner.

The manner in which these county commissioners performed their
duty in appointing the inspectors of election, especially in counties that
were manifestly largely Kepublican, is very fairly stated by contestant's
counsel, as follows:

AB will be seen from the evidence of Johnson, page 231, the Greenbackers were not
recognized as a party, and there was no pretense of appointing their men as election

310 DIGEST OF ELECTION CASES.

officers ; and the one inspector pretendedly accorded to the Republicans was not
always appointed, and when appointed was almost universally so utterly incompetent
as to* render the appointment worse than a mockery. Take for illustration the county
of De Soto, where there are several thousand voters, sixteen voting places, and as a
consequence ninety-nine election officers; and of these one inspector appears to have
been a Greenbacker (see page 244), and of the others not more than sixteen belonging
to the parties opposing the party of contestee, and fourteen of them testify that they
cannot read or write. Incredible as this statement may appear, it will be fully verified
by the evidence on pages 10, 12, 13, 15, 28, 32, 43, 45, 4f>, and 47, this being the testi-
mony of the officers themselves. That suitable Republicans and Greenbackers could
be had in the election districts, and that efforts were made in writing and in person
by representatives of both the opposing parties to have these suitable and competent
men appointed, will be fully shown on pages 25, 27, and 231. That the appointment
of intelligent Democrats, even when recommended by Republicans, was refused will
be seen in the evidence of Scruggs at the top of page 52.

Not to dwell tediously upon it, the two counties of La Fayette and Marshall have
about the same number of election officers, belonging to the different parties in about
the same proportion, and elertn of these in tack county testify that they cannot either
read or write. (See pages 57, 60, 65, 66, 67, 68,69, 72, 73, 74, 92, 95, 108, 109, 114, 116,
117, 119, 121, 125.) That suitable persons of the opposition parties could be found in
the election districts of these counties, and that earnest efforts were made to secure
their appontment, see pages 51, 105, and 203. For other appointments of election
officers of the same character in other counties, read pages 170, 18f>, 190, 193, 178, 187,
and 174. In the five counties of Marshall, La Fayette, Tate, De Soto, and Talln-
hatchie, out of the small number of election officers appointed from the opposition
parties over forty of them could not read or write, and the three or four of them who
claimed to be able to read print, upon being tested were found to be deficient in that.
As specimens of these officers thus arbitrarily appointed, read the testimony of Cfezar
Pegues, on page 69, where he testifies that he is " about sixty-five years of age. One
of my eyes is entirely out ; the other I cannot see good out of, and I cannot read or
write;" and of Seaborn Clark, on page 114, where he says, "I can neither read or
write; I cannot hear good out of one ear at all; I got a pin stuck in the drum of my
ear."

REGISTRATION OF VOTERS.

The evidence shows that in the four counties of Marshall, De Soto,
Panola, and Tallahatchie (all confessedly largely Republican counties),
the county commissioners did assemble at the registrar's office some ten
days prior to the election, but manifestly not for the purpose of correct-
ing the books " so as to show the names of all the qualified electors of
the county," as is the plain language of the statute, but they met
there and deliberately stopped the registration of voters in the counties
mentioned; and, not satisfied with this, went deliberately to work (for
what cause it is not stated) and erased from the poll and registration
books the names of nearly 1,000 Republican voters who had previously
registered, many of whom swear that they had been voting for years at
the precincts where they offered to vole at this election, and the fact that
their names had been erased from the books was not developed until
they came to the polls to vote. This is shown to be the case at some
forty precincts in the district. (See pages Record 19, 23, 24, 27, 30, 52,
76, 80, 123, 167, 196, as to closing of registration.)

For evidence of Republicans' names being erased from registration
and poll books, and not being permitted to vote in consequence thereof,
see Record, page 83, Q. 21 ; pp. 112, 91, 97, 94, 108, 119, 109, 111, 117, 60,
100, 28, 19, 31, 34, 12, 13, 35, 44, 25, 40, 41, 168, 157, 178, 438, 439, 440,
447, 448, 450, 452, 453, 454, 455, 456, 462, 463, 464.

DE SOTO COUNTY.

Record, p. 24, Q. 5 : Witness " Pratt" says State board appointed an
ignorant colored man to represent the Republicans, "who is totally ig-
norant," and not identified with the party, as one of the county election
commissioners.

BUCHANAN VS. MANNING. 311

Record, p. 28. Q. 2 and 3 : This commissioner says he cannot write or
read writing, and knew nothing of the compiling of the returns save
what the Democratic members of the board told him.

Record, p. 20, Q. 15 : " Howze," Greenbucker, proves that "Johnson,"
one of the Democratic commissioners, forged a poll-book and caused it to
be substituted for holding the election at Depot Box, instead of the poll-
"book belonging to that precinct (at Hernando).

Record, p. 29, Q. 2: "Dr. W. M. Johnson" says that this election com-
missioner admitted to him that lie did make the booJc.

Record, p. 233, Q. 25 : This commissioner says he has no information
^except hearsay) as to whether or not he and others are under indictment
in the Federal court for the infraction of election laws.

Record, p. 458, Q. 6 and 7 : " Howze" says he was present in court, and
that t'f.is commissioner was present, when his case was continued till July
term, 18SO.

Record, p. 457, Q. 3: Election commissioners abolish Plumb Point pre-
cinct.

Record, p. 21, Q. 19; p.23,Q.8; p.24,Q.7; p.27,Q.6: Ten days prior
to the election the registrar refuses to register any more voters, and the
books are closed against them for the season. "Nelson "says voters
were coming in every day and refused registration.

Record, p. 21, Q. 19 : "Howze" says (estimates) that he saw as many
as 150 Republicans during that time who told him that they had applied
for registration and were refused.

Record, p. 23, Q. 8: "Newsoin" says the closing of the registration at
that tine was a source of general complaint among Republicans from all
over the county, who came for that purpose ; that there are a large num-
ber of voters who generally neglect to register till just prior to election.
Witness heard no Democrat complain.

MARSHALL COUNTY.

Record, Q. 3 and 4, p. 336 : State board appoints " Wallace," Man-
ning's brother-in-law, as one of the county commissioners.

Record, Q. 4 and 5, p. 338: "Wallace" is shown to have been in the
labit of officiating at elections. Claims to have acted but for a short
rime, but on being pressed (p. 338, last question) admits that he was
such all the campaign.

Record, Q. 7 to 10, p. 123 : " McCorkle," Republican commissioner,
shows that Wallace and Hardin, the two Democratic commissioners,
held a meeting without advising him of it and. forged his name to a cir-
cular, under which they abolished two precinct*, and changed the location
of two others, which was done without his knowledge or consent.

Record, Q. 1 and 2, p. 125: McCorkle shows that he was never out of
Holly Springs more than one day at a time at that period. (See circu-
lar referred to, p. 124.)

Record, p. 76, Q. 7; p. 80, Q. 5: The county registrar closes the reg-
istration books ten days before the election and no voters are permitted
to register after that time.

Record, p. 123, Q. 4 and 5: "McCorkle," county commissioner, says
that they were always crowded with applications for registration papers
during the last few days prior to elections; that 500 or 600 voters gen-
erally applied for registration within that period.

Record, p. 80, Q. 7: "Cunningham," on Wednesday before election,
says be took down the names of about one hundred who were refused reg-
istration, many of whom he accompanied to the registrar for that pur-

312 DIGEST OF ELECTION CASES.

pose (that he stayed at the court-house all day for that purpose), at re-
quest of Buchanan.

LA FAYETTE COUNTY.

Record, p. 51, Q. 4: "(Scruggs" says State board appointed ignorant
man as Republican representative on board county commissioners over
protest of Kepublicans.

Record, p. 71, re-examination, Q.I, 2, arid 3: Republican commis-
sioner shows that he was appointed at solicitation of Democrats only,,
and that no Republican recommended him.

Record, p. 211, Q. 9: Shows McGowan to be a man utterly devoid of
character. McGowau was one of the Democratic commissioners of that
county.

Record, p. 60, Q. 1, 2, 3, and 4: McGowan presided as associate no-
tary (deputy chancery clerk) in taking this testimony, where his own acts
was directly the subject of investigation.

Record, p. 210: "Nunnally" says he would not believe " McGowan ' r
on oath.

Record, p. 70, Q. 2 and 3, 4 and 5: "Jefferson," Republican commis-
sioner, says the Democratic commission appointed the inspectors with-
out consulting him and refused to appoint any one recommended by Re-
publicans. Registration of Republicans avoided by taking registration
books to Democratic meetings and other places. Code Miss., sec. 11 and
12, requires registration books to be kept at office of circuit clerk and requires
all electors desiring to register to come to the court-house (clerk's office}.
The books are part of the records of his office, and are made in a, statu-
tory form, one for each district in the county, and all persons registering;
are required to sign this book.

Record, p. 52, Q. 6: "Scruggs" says registration books were taken
to Democratic speaking at Stouer's Mill the day that the Republicans had
speaking at Oxford.

Record, p. 307, Q. 10 : Contestee's witness "Andrews" says books were
taken to Abbeville, College Hill, Alexander's Store, and Free Springs
on more than one occasion.

TALLAHATCHIE COUNTY.

Record, p. 187, Q. 5, 6, and 7 : " Turner" says State board appoints an
ignorant man as the Republican representative as county commissioner
over protest of Republicans.

Record, pp. 196 and 197, re-examination, Q. 1; cross-examination, Q.
1 : " Downy," the Republican commissioner, shows his utter ignorance r
and that he cannot read writing.

Record, pp. 421 and 422, cross-examination : " Sanders " shows that
" McAfee," one of the Democratic commissioners, while acting as such
in 1879, sent the wrong poll-books to several precincts by the Democratic
candidates, and in consequence thereof they held no election at these
precincts.

NOTE. No Republican vote was cast in this county for President or

Congressman in 1876, by reason of wholesale destruction of Republican
tickets.

Record, p. 414 : " London," cross-examination, Q. 1 and 2, on this sub-
ject.

Record, p. 421, Q. 2: "Danders," county registrar, closes the regis-
tration of voters five days before election.

BUCHANAN VS. MANNING. 313

PANOLA COUNTY.

Record, p. 167, Q. 4: "Brown," commissioner, says registrar turned
over the registration books to commissioners, for revision, ten days be-
fore the election, and (Q. 6) says the registrar did no more registering
after that time. See Q. 1, cross-examination : Says the commissioners
did some registering during that time, but they were only revising regis-
tration. X Q. 6 : Election laws, section 124, only authorize commis-
sioners to register persons on appeal (where the registrar has refused
them registration).

Record, p. 142, Q. 11 : " Pipkin" says books were turned over to com-
missioners ten days before the election, and (p. 143, Q. 12) the board
were transferring names during that time; that registrar helped them
register one day.

Record, p. 157, Q. 3, 4, and 5 : " Small" says Brown and Ruffiu, the
election commissioners, acted as inspectors, and held the election at Sar-
dis precinct ; that neither of them were sicorn as inspectors ; that Ruffin
was a voter at another precinct. (This is not denied by any witness.)

TATE COUNTY.

Record, p. 173, Q. 3 : Republicans have no representative on board of
election commissioners, but " Jones," Greenbacker. is appointed.

Registration closed as against Republicans.

Record, p. 398, Q. 1 and 2, cross examination : Contestee's witness
Clifton says he sent registration books to country precincts by one
" Medders," who is editor of the Democratic paper. This was just prior
to the election.

Record, p. 401, Q. 2 and 3 : " Medders" accompanies " Shauds," Dem-
ocratic " elector," to his appointments all over the county the week pre-
ceding the election, thus closing out all persons applying at the regis-
trar's office for registration, where the law required the books to be kept
and registration to be done, and where the law required all persons to>
come who desired to register, from all parts of the county.

It is in evidence that " Johnson," one of the Democratic election com-
missioners for "De Soto" County, was convicted -at the last term of the
Federal court held at Oxford, Miss., and fined $500, for fraudulently eras-
ing the names of voters from the registration and poll books of that
county at this election (see transcript court record filed in case) ; that
all three of the election commissioners for (Panola) county were in-
dicted and plead guilty, at the December term, 1880, of the same Fed-
eral court, to the charge of refusing to register voters at this election
(see transcript court record filed in case) ; that the two Democratic
election commissioners for " Marshall County " were indicted and plead
guilty at the December term of the same court (1880) to the charge of
fraudulently erasing names of voters from the poll books of that county
(see printed record, page 6).

ThatC. S.Boweu, an election inspector, was tried and convicted at the
same term of this court for ejecting a United States supervisor from the
polls in Marshall County ; and

That Seaborn Clark and N. Mims, inspectors of election, plead guilty
to charge of ejecting United States supervisor from the poll in Marshall
County at the same term of court. (See printed record, page 6.)

314 DIGEST OF ELECTION CASES.

That " Maxwell," the registrar for " De Soto County," is now under
indictment in the same court for registering voters by proxy and for de-
nying registration to one class of voters. (See record transcript filed.)

We here give the evidence of G. 0. Chandler, the district attorney for
the northern district of Mississippi, showing what seems to your com-
mittee a prevailing sentiment (in the second Mississippi district and
adjoining districts) as to the right of parties to interfere with poll-
books, election officers, and ballot-boxes. The record filed with the com-
mittee shows that a part of these election officers were permitted to plead
guilty " nolo contendere." We can well immagine why a humane judge
should be so considerate as to permit such a plea to be entered, in view
of a Mississippi statute affixing the penalty of disfranchisement for
offenses of this kind.

The record, pages 382 and 387, shows that the parties from " Marshall "
County were defended by volunteer and able counsel, who testify that
they defended these men without fee or reward, because they saw they
thought they were being persecuted. It is shown that three law firms
of the city of Holly Springs tendered their services in the defense of
these cases.

Page 5: .

G. C. CHANDLER, being sworn according to law, testifies as follows :

Question 1. Where do you reside, and how long have you resided in the State of
Mississippi? Answer. I reside at Corinth, Miss., and I have resided constantly in the
State the last forty-five years.

Q. 2. What official position do you now hold under the laws of the United States f
A. I am United States attorney for the northern district of Mississippi.

Q. 3. In your official capacity as district attorney of the United States for the court
of the northern district of Mississippi, if to your knowledge there were any indict-
inentb found by the grand jury at the December term, 1880, of said court for viola-
tions of the election laws of the United States, state how many, for what particular
offense, in what counties, and disposition (if any) was made of such cases, together
with the names of parties indicted. State fully and particularly. A. For want of
money, and on account of the failure to co-operate with the court on the part of some
persons who should have felt an interest in enforcing the law, there was only a very
partial investigation of the last Congressional election ; but BO far as the investiga-
tion was carried it showed almost every conceivable crime against the purity of the
election. A number of indictments were returned by the grand jury, and I hand you
the following account of those where arrests have been made; the others are for the
present private.

Q. 4. State, if you know, from your information as district attorney, whether ornot
there were other violations of the election laws of the United States and laws of the
State of Mississippi, in said district, committed at the election in November, 1830 ;
and, if yea, state why the grand jury failed to institute further proceedings. State
fully and particularly your knowledge ou the subject. A. The grand jury did not
return all the indictments the evidence before them warranted. They examined wit-
nesses only from eight or nine counties, and they were adjourned when the funds to
pay witnesses and jurors were exhausted. In many counties the election was con-
ducted fairly, and in others all election laws, State and Federal, were violated. Men
of one class were registered illegally, and of another class refused registration. Un-
der the State statute that authorized the revision of the poll-books the names of many
legal voters were crossed from the poll-books, and intimidation and obstructing of
voters, expelling United States supervisors, false counting, and ballot-box stuffing
were all shown by the evidence before the grand jury to have been committed.

IA*t of election oases originated at December term, 1880, of the United Stales district court
for the northern district of Mississippi, where arrests have been made, with disposition of
the same.

Wo. 1765. United States . M. B. Collins, Warner Matthews, Jos. E. Monroe, commis-
sioners of election for Coahoma County.

Oharge. Failing to return vote of the county returning the vote of one precinct as
ibe entire vote of the county.
Plea of guilty by each defendant.

BUCHANAN VS. MANNING. 315

1802. Alonzo Gorman, A. G. Hockreoder, William Pounds, Lee County.

Charge. Obstructing voters at the polls.

Dismissed as to Hockreoder, and jury and verdict of guilty as to Gorman, and not
guilty as to Pounds.

1788. E. L. Sykes, sheriff of Monroe County.

Charge. Threatening witness in election cases.

Jury and not guilty on plea of guilty in case No. 1790, and as the Government had
a single witness to the threats.

1789. Jas. Evans, Jack Gathings, Paul Strong, Monroe County.

Obstructing voters at the polls.

Plea of guilty as to Evans and Gathings, and dismissed as to Strong.

1790. E. L. Sykes, sheriff, Monroe County, Ben. Halliday, Jas. E. Sanders, J. Sandy
Watkius, Woodsou Watson, Jas. .Evans, Ben. Bradford, Jack Gathings, Dr. Strewell,
inspectors and clerks.

For ejecting United States supervisor from polling place.

Plea of guilty as to Sykes, Jas. Evans, and Jack Gathiugs, and dismissed as to the
others. .

1794. G. C. Myers, register, Marshall County, M. G. Hordin, J. C. Boxley, commission-
ers, Marshall County.

Charge. Refusing to register voters.

Jury, and verdict of not guilty ou entering plea of guilty in case 1795, by Hordin
and Boxley, and not guilty as to Myers.

1795. M. G. Hordin, J. C. Boxley, commissioners of election, Marshall County.

Charge. Fraudulently erasing names of voters from poll-books.
Plea of guilty by each defendant.

1771. C. S. Bowen, jr., Seaborn Clark, Nat. Muris, Dr. Dean, Marshall County election

inspectors aud clerk.

Charge. Ejecting from polls United States supervisor.

Jury, and verdict as to Bowen ; plea of guilty as to Clark and Muris, and not guilty
as to Dean.

1786. George Askew, Dorsey Outlaw, Green Davis, commissioners, Oktibbeha County.

Charge. Refusing to keep polls open as required by law.
Pending.

1772. C. S. Bowen, jr., Seaborn Clark, Marshall County, inspectors of election.

For failure to keep polls open as required by law.

Jury, and verdict of not guilty on their entering plea of guilty in No. 1771.

1773. T. R. Maxwell, registrar of De Soto County.

Fraudulently refusing to register voters.
Pending.

1775. W. H. Johnston, T. A. Dodson, Anthony Matthews, De Soto County, commis-
sioners of election for De Soto County.

For fraudulently making false poll-book.
Jury, and verdict not guilty.

316 DIGEST OF ELECTION CASES.

1774. W. H. Johnston, T. A. Dodson, Anthony Matthews, De Soto County, commis-
sioners of election for De Soto County.

For fraudulently erasing the names of voters from the poll-books.
Pending.

1776. Jas. Brooks, N. Dodds, inspectors of election at Horn Lake, De Soto County,

Stuffing ballot-box.
Pending.

1777. Jas. Brooks, N. Dodds, inspectors of election at Horn Lake, De Soto County.

Refusal to keep polls open.
Pending.

1785. Geo. Askew, Dorsey Outlaw, Green Davis, Jno. Gillmore, Isaac Sessions, Oktib-
beha County inspectors and clerks.

Stuffing ballot-box.
Pending.

Having stated tbe general principles that govern our opinion, we now
proceed to give the number of votes cast at the various precincts where
frauds are shown to have been committed, and where the election offi-
cers were either so corruptly or illegally appointed, or where their acts
while holding the election causes such suspicion in our minds as to de-
stroy confidence in the returns. The number of votes there found to
be tainted with fraud is so great as to justify the conclusion that the
election in this case must be set aside. (For returns see Record, pages
391 and 392.)

MARSHALL COUNTY.

Chulahoma 512

Byhalia 514

West Holly Springs 507

East Holly Springs 512

Wall Hill 340

Mount Pleasant 396

Waterford 192

Hudsouville 273

3, 246

DE SOTO COUNTY.

Horn Lake 335

Hernando Court-House 166

Olive Branch 186

Oak Grove 229

Hernando Depot 299

Lauderdale 145

Pleasant Hill .. .. 244

Love Station 233

Nesbitt Station 247

Lewisberg 158

Endorn ' 240

Lake Cormorant 192

Cochran precinct 211

' 2,835

LA FAYETTE COUNTY.

College Hill 410

Oxford _ 1,110

Taylor's Depot '.'.'"'.'. .'.....'.'. *349

Abbeville ....... ~. 351

2, 220

BUCHANAN VS. MANNING. 317

PANOLA COUNTY.

Sardis 624

Couio 748

Longtown 265

Pleasant Grove ._. 323

Springport 133

2,093

TATE COUNTY.

Arkabutla .' 183

Independence 326

Senatobia 462

971

TALLAHATCHIE COUNTY.

Charleston* (county seat), estimated 300

300

Total 11,715

In making the foregoing statement we have not included the vote of
mauy precincts where good grounds exist for their rejection, and where
the election might be declared void upon the evidence, as at Law's Hill,
Oak Grove, Bains ville, Evans School-house, in Marshall County; Spring-
dale, Sanders' Store, Free Springs, and Dallas precincts, in La Fayette
County ; Stewarts, Reynolds, and Ingrain's Mill, in De Soto County j
Boss Mill and Brooklyn, in Tallahatchie County. The evidence of wit-
nesses in relation to these precincts shows such irregularities as, when
considered in connection with the evidence generally, leads to the belief
that there was unfairness intended, if not openly practiced.

Were we to adopt the rule laid down in Donnelly vs. Washburn we
would reject them all.

We have selected the precincts (where the figures are given) because
at every one of them some transparent fraud is directly proven, or the
conduct of the election officers has been such as to so becloud them with
suspicion that they are. iu our judgment (when considered in connection
with the conduct of this whole election), unworthy to be considered as
election returns.

YALOBUSHA COUNTY.

As to the condition of affairs that prevailed in this county, we here
submit the evidence of A. T. Wiinberly, chairman of the Greenback
State executive committee. The returns from this county (page 392)
give contestant only 81 votes, while contestee has 1,120 votes, while the
census (p. 293) shows there to be some 1,540 colored voters in the county.
It does not seem from this evidence that those who deemed it necessary
to carry the election " at all hazard*" were either respecters of persons
or political parties, or were at all choice in their methods of bringing
about the result, and we can easily conceive how timid colored voters
would shrink from contact with such a state of ?ror, and either stay
away from the polls or seek refuge in the protection afforded by the Green-
backers and vote their ticket, if necessary to that end.

*The vote of this county is not returned by precincts.

318 DIGEST OF ELECTION CASES.

A. T. WIMBERLY, being legally sworn, testified:

Question 1. Where do you now reside ; where on the 2d November, 1880 ; how long
have you resided where you now reside, and what are your politics? Answer. Ou 2d
November, 1880, I resided in Coffeeville, Yalobusha County, Miss., and have resided
there since 1868. I am a Greenbacker in politics, and have lived in this district all
mv life.

Q. 2. What official position do you hold in your party in Mississippi, and what in
the political canvass of 1880, and what is the extent of your acquaintance with the
Greenback organization in this second Congressional district? A. I am chairman of
the Greenback State executive committee, and was in 1880. From my correspondence
as such chairman, and my association with the party in convention and otherwise. 1
am very well acquainted with my party organization in the district.

Q. 3. What part did yon take in the interests of T. W. Harris, your Greenback can-
didate for Congress, in 1880? A. I not only canvassed Yalobusha County in his be-
half, but also La Fayette, and personally spent my time in the canvass of those coun-
ties and by correspondence with Greenbackers all over the district during the canvass ;
worked in'his behalf. I spent my time, my money, and run the risk of losing my life
in that canvass for him.

Q. 4. What sort of canvass did the Greenbackers make as to vigor and aggressive-
ness in this the second Congressional district in the Congressional election of 1880 ?
A. From my personal observation and correspondence in the district, I think they
could not have made a more thorough canvass than they did. They directed their
time and energy and what little money they had for the success of their candidates.
T. W. Harris, our candidate for Congress, made a thorough canvass of the entire dis-
trict.

Q. 5. What was the character of your canvass in person for peaceableness and quiet-
ness? If any vkdence was done towards. you or the members of your party, state
fully and particularly all you may know on this point. A. The canvass was any-
thing else but a peaceable one, from the beginning to the end. At every political
meeting held in Yalobusha County, where there was a joint discussion between the
Greenbackers and Democrats, the Democrats never failed to go armed not only on iheir
own persons, but there was a committee of boys appointed to carry arras in saddle-
bags to be used should it be necessary. That forced us to carry ours to defend our-
selves with, and we were not inclined to be bulldozed and run off the track by the
Democratic mob. In Coffeeville, some time in the month of July or August, the Dem-
ocrats advertised to have a ratification meeting. We were invited by one of their
committee to have a joint discussion. We accepted the invitation, and after we had
sent out runners for our crowd to come to the speaking on the following Saturday, the
chairman of the Democratic committee, late Friday evening, about sunset, notified me
as a member of our committee that they would not permit any discussion on the fol-
lowing Saturday, when it was too late for our committee to give notice to our people.
On Saturday morning, after the crowd had gathered in on both sides, I went to the
chairman of the Democratic committee and said to him that as there was a misunder-
standing, or rather a refusal on their part to grant a division of time, we would have
a speaking of onr own, but that as it was their appointment we would let them take
choice between the grove and the court-house as to where they should hold their
meeting. He notified me that they would hold their meeting in the grove. I at once
started a little negro boy up the street ringing a bell to notify the Greeubackers that
we would hold our meeting in the court-housa. Two or three Democrats stopped him
and forbid him ringing the bell. Just after our meeting adjourned I discovered the
Democratic crowd from the grove making way up the street leading to the court-house,
nsing very insulting language against the Greeubackers. We passed them, and when
we dispersed at the depot five or six of the Democrats commenced firing on Mr. Pier-
son, a Greenbacker, and other Greenbackers, swearing that if they could'nt beat u&
voting they would kill us. This shooting resulted in the wounding of Mr. Pierson
and some half dozen others, both Greenbackers and Democrats. On the following
Monday a mob of some HOO Democrats came to Coffeeville and sent a committee to me
a second time to say that unless I renounced my political principles I would be a dead
man before midnight. I did not comply with their demand, nor did they put their
threat into execution.

Q. 6. State the character for intelligence of the Greenback white voters of the dis-
trict. A. They are of the very best material of the merchants and farmers of the dis-
trict ; also lawyers and doctors.

Q. 7. What is the Greenback white vote of Yalobusha County ? State as near as
you can estimate. A. The Greenback white vote of Yalobusha County is between 500
and 700 voters.

Q. 8. From what counties did Colonel Harris, candidate for Congress, chiefly receive
his vote from among the colored voters given at that election ? A. Colonel Harris
received what colored votes he did receive at last election from among the colored
roters in Yalobusha. and Panola Counties.

BUCHANAN VS. MANNING, 319

Cross-examined :

X Q. 1. Did not nearly all of the colored people of Yalobnsha County vote for T.W-
Harris, November 2, 1680, for Congressman f A. Between five and seven hundred
voted for him.

X Q. 2. Did he not receive a considerable colored vote in Panola County t A,- From
the returns and all the information I have, he did.

X Q. 3. Did you not have a fair election and a fair count in Yalobueha County ? A.
So far as I know we did ; we made them give it to us.

X Q. 4. Do you know T. J. Settle, of Panola County, and is he not a prominent and
leading Republican politician, and is he not of the colored race? A. Yes, sir.

X Q. 5. Are you not chancery clerk of Yalobusha County ? A. I am.

A. T. WIMBERLY.

Your committee would hesitate to reject the vote of any one county
upon the evidence of a single witness, but the exceptionally high charac-
ter of the witness, and the most extraordinary state of affairs shown to-
have existed by his proof, and as is shown by his returns on page 329 r
strongly incline us to the opinion that it should be rejected.

FAILURE OF CLERKS OF ELECTION TO KEEP LISTS OF VOTERS.

The willful refusal of the clerks of election to make two lists of the
voters by name, as they voted (and as is required by section 136, Miss.
Laws), after having been shown the law by supervisors (Evidence, pp.
38, 40, 42, 63, 110, 135, 159, 163, 165, 166, 170, and 374), is a very sus-
picious circumstance in connection with this election. It is through
these lists that stuffing ballot-boxes can be easily detected ; or if persons
are permitted to vote who are not entitled to vote, it will appear by
these lists ; and your committee does not forget that in the case of
Lynch vs. Chalmers the evidence shows that at some of the precincts in
the 6th Mississippi district the county canvassing board rejected the re-
turns and refused to count the vote because the clerics had failed to return
the lists of voters with the ballot-boxes.

CHANGE OF POLLING PLACES.

There is evidence tending to establish the fact that some of the
voting places were changed just prior to the election, and that much
confusion was thereby caused among the voters. Many of them were
not aware of the change, and in some instances they did not know
where the new polling places were established. Just how far this
affected the result of the election we are unable to tell from the evi-
dence. We can, however, readily imagine how a resort to changing the
polling places just before an election in a county would cause such con-'
fusion and unfairness as would defeat the popular expression of the
will of the people through the ballot-box. (P. 123, Q. 7 to 10 ; p. 457 r
Q. 3 to 5 j p. 231, X Q. 12.)

The report made by the chairman of this committee in the case under
consideration uses the following language :

ILLITERATE ELECTION OFFICERS.

There is no doubt in our minds, from the evidence in this case, that many of the
Republican precinct inspectors were appointed as such because they could neither
read nor write. This is, in our judgment, a clear abuse of the law, and without the
supervisor's law, which enables the opposing party to have men of their own selection
to guard the polls as supervisors, we would be strongly inclined to apply a corrective
for this manifest abuse of power.

With tickets exactly similar in all respects, or as nearly so as they can be printed,
and en the same kind of paper, it would not be a hard task for election officers, if

320 DIGEST OF ELECTION CASES.

they were so disposed, to cheat an illiterate man, who could neither read uor write,
both in the vote and in the count. All good people ought to discountenance and cry-
down evil practices of this kind. We indulge the hope that it will not be repeated
in the future.

We concur with the chairman in his opinion of the abuse, but we dif-
fer from him in believing that the presence of the United States super-
visors in any way palliated the offense, or took away the necessity for
the application of the proper correction, and while we join in his hope
* that it will not be repeated in future," we think the best method of
securing the fulfillment of that hope is to take from the conspirators the
fruits of their ungodly work, and we cannot agree with him in the state-
ment of the report as follows :

DONNELLY-WASHBURN CASE.

We are not willing to go as far in this case as the majority of the committee did in
the Forty-sixth Congress in the case of Donnelly vs. Washburn. It was there held

''The very fact that in these seven precincts Mr. Donnelly had been deprived by the
city council of Minneapolis of all representation among the officers conducting the election
is, in itself, a very strong proof of conspiracy and. fraud."

We concur in opinion with the majority in this case upon this point,
because in the case before us there is so much additional evidence of
like character, shown at some forty precincts, to justify the opinion that
a conspiracy existed.

In Donnelly vs. Washburn, Forty-sixth Congress, report No. 1791,
page 25, the committee reject the vote of a whole county because the
vote of the county was canvassed by the county auditor, one justice of
the peace, and judge of probate, while the law required the vote to be can-
vassed by the county auditor and two justices of the peace.

Held, that the probate judge being ineligible under the law, the vote
must be rejected.

Authorities cited: Howard vs. Cooper, Thirty-sixth Congress ; Jack-
son vs. Wayne (Clark & Hall's Keport, p. 41); Easton vs. Scott, p. 272 ;
Sloan vs. Rawls, case$ 1871 to 1876, p. 144 ; Delano vs. Morgan, 2 Bart-
lett, p. 171 ; Howard vs. Cooper, cases 1864 to 1865, p. 282 ; Morgan vs.
Delano. In Donnelly vs. Washburn the committee say :

It must be remembered that in the cases cited, as decided by former Congresses, the
votes of townships were cast out, becausethe boards of election, judge, or the clerks thereof,
were not constituted according to laic. This being the law as to mere present officers, how
much more strongly does the principle apply to the case of a canvassing board of a
county where the votes (not of one precinct alone) but of all the precincts of the
connty are involved. * * * How important, then, does it become that the county
board of canvassers shall be constituted in strict conformity ivith law, and that no usurp-
ers shall be permitted to intrude into and control its deliberations.

We only refer to the foregoing cases to show the action of former
Congresses, and not for the purpose of deciding this case on rule laid
down.

We think the evidence in this case so clearly establishes a conspiracy
to defraud the electors of that district of their votes, and through which,
as the proof shows, very many thousands were so defrauded, that we are
entirely safe in basing our conclusion upon this ground alone. In addition
to the figures we have already presented by precincts, there can be no
doubt from the evidence that the registration was designedly stopped
by contestee's friends, and for the purpose of preventing the friends of
contestant from registering just prior to the election, and that thousands
of contestant's friends were thereby deprived from registering; and the
proof also shows that hundreds of (Republican) voters who had previ-
ously registered were not permitted to vote because their names had been

BUCHANAN VS. MANNING. 321

arbitrarily or fraudulently erased from the poll-books of their respective
precincts by the commissioners of elections, which fact was not discov-
ered until these voters came to the polls to vote.

In brief submitted by counsel for contestee it is argued ill justifica-
tion of the numerous adjournments and carrying away of the ballot-
boxes, that such conduct was authorized by the following clause in the
law of Mississippi, revised code, 1880, section 126:

If an adjournment shall take place after the opening of the polls, and before ^11
the votes shall be counted, the box shall be securely closed and locked, so as to
prevent the admission of anything into it during the term of adjournment, and the
box shall be kept by one of the inspectors, and the key by another; and the inspector
Laving the box shall carefully keep it, and neither unlock it nor open it himself, nor
permit it to be done, nor permit any person to have access to it during the time of
such adjournment.

It is very evident to the minds of your committee that the lawmakers
of Mississippi intended that when the election opened at nine o'clock, it
should be kept open until six o'clock in the evening, and that the vote should
be immediately counted and returns made, as is plainly set out in the lan-
guage of the statute, section 136, embraced in this report. We can
easily imagine a necessity for the adjourn tnent of an election in case of
riot, storm, or other abnormal conditions, which would be justified by
section 126, but not otherwise.

VOTE OF THE DISTRICT AT FORMER ELECTIONS.

There is but little evidence on this point. All the records filed with
the committee tend to show that the second district is a Republican dis-
trict ; they show that General Grant carried the counties comprising this
district by a majority of 2,625 votes in the Presidential election of 1872.

That in 1873 the regular Republican candidate for governor carried
the counties comprising this district by a majority of 1,570.

That in 1873 the CONTESTANT in this case carried the county of Mar-
shall by a majority of 1,304, while returns filed in this contest from this
county give a majority for contestee.

It is developed by the proof in this case that a great majority of the
votes cast for Harris, the Greenback candidate for Congress at thw elec-
tion, were cast by tchite voters who, in the years 1872, 1873, and 1874,
belonged to the Democratic party, and we are unable to conceive how (un-
der ordinary circumstances) it was possible for the district to be Demo-
cratic in the last (Presidential) election, and we can only account for it
by the methods so clearly proven and heretofore set out.

We hold it to be true that when public officers are shown to be cor-
rupt men their acts as officers are not entitled to the same presumption
of fairness extended to officers of unimpeachable character, and to show
the character of many of the Democratic county commissioners of elec-
tion and the ignorance of the Republican commissioners we have given
extensive quotations from the evidence.

Having pointed to the proof of, and which we consider the strongest
possible circumstantial evidence of, a conspiracy to stuff the ballot-boxes
in this district, we now call attention to the conduct of the officers hold-
ing the election itself, and we submit herewith a brief summary of the
testimony, with references to the pages of the record where it is to be
found, showing frauds as barefaced as ever disgraced the election of any
State.

From the open and defiant firing of cannon into Republican voters at
Oxford to drive timid voters from the polls, the bullying of gray-haired
H. Mis. 35 21

322 DIGEST OF ELECTION CASES,

men who were United States supervisors, as at Horn Lake, by youth-
ful desperadoes with five-shooters, down to the substitution of ballots
as they were put into the box, as at Byhalia, and the fraudulent tally-
list as at Holly Springs, every possible scheme and device by which
ballots can be stolen or falsely counted is found to have been practiced.
Section 136, code of Mississippi, 1880, is in the following words :

All elections by the people of this State shall be by ballot. The poll shall be opened
at 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 l>e closed, the inspector shall publicly open the
box and number the ballots, at the same time reading aloud the names of the persons voted
for, which shall be taken down by said clerks in the presence of the inspectors, and if there
should be two or more tickets rolled np together, or if any ticket shall contain the
names of more persons for any office than such elector had a right to vote for, such
ballot shall not be counted.

The law clearly required that when the election begins in the morning
the work shall go continuously on until the votes are all counted, and
the returns made out and signed.

BRIEF OF EVIDENCE BY PKECINCTS.

Marshall County, Chulahoma Precinct.

" Cunningham," page 79 : Was appointed United States supervisor,
and was not permitted to act, and compelled to leave the room ; re-
mained outside and kept tally of Republican votes, they voting open
tickets. Three hundred and thirty-six Kepublicans offered to vote, of
whom 35 were rejected because their names were not on the poll book.
Witness knew most all of them personally, and they lived in that voting
precinct. Witness kept number of white voters, there being one hun-
dred and sixty.

Polls adjourned one hour for dinner, leaving the box in the room no
one in charge. Also adjourned when polls closed for supper, leaving no
one with the box. Vote counted in secret. Witness was raised in that
neighborhood. (See diagram, page 82.) Eeturns on page 391 show
Democratic vote 241 5 Kepublican vote 271.

" Wilkins," p. 118 : Corroborates above, as far as he goes.

" Clark," p. 11-t : Corroborates above, as far as he goes.

Contestee's witnesses. " Hancock," p. 369 : Was invited in to witness
the count after fifty tallies had been counted. Did not see anything
wrong after that time.

" Mimes," p. 339, and " McKee," p. 343, saw nothing wrong at the
polling and count of votes, and say election was fair.

Byhalia Precinct.

" Hardy," supervisor, p. 97 : Was supervisor ; when vote was being
polled detected Inspector Flow exchanging ticket.

When vote was being counted detected same officer several times tak-
ing tickets out of the box, and putting in other tickets. Twenty-nine
persons were refused a vote, nearly all Kepublicans, most of whom wit-
ness personally knew as living in that precinct. Witness files list of
these, page 98. Republicans spoken of voted open tickets. Polls ad-
journed for supper.

Contestee's witnesses. "Watson," p. 370 : Supervisor; did not discover
anything wrong.

BUCHANAN VS. MANNING 323

West Holly Springs.

" Benton," p. 75 : Was United States supervisor. Polls were opened
and voting continued till 6 p. m. Witness then desired the vote counted,
but inspectors refused, and adjourned for supper. Democratic inspector
McKinney went out and came back, stating that he had consulted
Colonel Manning (contestee) and General Featherstone (chairman Demo-
cratic executive committee), and upon their advice they adjourned for
supper. After supper the count was proceeded with, the door being
locked, and no one admitted save the election officers. Ballots were all
passed to witness, which he counted carefully, and also kept tally of
same. Witness's tally-list showed that there were 50 more votes cast for
Buchanan than the clerks had put on their tally-list, and called atten-
tion to the fact, but they failed to take any measures to correct it. Re-
publican inspector refused to sign the returns. There were 40 or 50
colored Republicans refused a vote, chiefly because their names were
not on poll-book. No white man was so refused on any account. These
men claim to have been duly registered. Witness knew most of them
as citizens of that election district.

" Guy ton," Republican inspector, p. 121 : Corroborates foregoing wit-
ness as far as he goes, and was importuned and threatened to sign the
returns, but never did sign them. Republican inspector at this precinct
could neither read nor write.

Gontestee's icitnesses. " Walters," p. 357 : Says witness Beuton did
call the attention of election officers to the discrepancy mentioned inr
his testimony.

" McKinney," Democratic inspector referred to in witness Benton's
testimony, is examined, and does not deny that Manning and Feather-
stone advised them that they could adjourn for supper, but saw nothing
wrong.

" McGowan," p. 352 : Thinks the election entirely fair.

"Williamson," p. 356 : Concurs in the opinion of witness McGowan..

East Holly Springs.

" Wilkinson," p. 91 : Was supervisor. Kept tally-list of all persons-
voting that day ; tally-list was tampered with just as polls closed. Two-
of election officers were brothers-in-law to contestee, one of whom had
been one of the county election commissioners till a short time before j;
door was locked and public excluded when vote was counted ; no one
permitted present except election officers. About 30 persons, mostly
colored (most of whom were known to witness as belonging to that elec-
tion district), were refused a vote; all claimed to have been registered,
but names were not on poll-book. There were sixty more ballots counted
out of the box than there were persons voting ; witness watched polling
and counting of votes " as close as hawk ever watched a chicken." See
diagram, p. 94 ; Republican inspector at this precinct could neither read
nor write.

" Harris," p. 222 : As to high character of witness Wilkinson.

Contested s witnesses. J. R. Wallace, p. 355 ; M. F. Wallace, p. 336 ;
McGowan, p. 350 ; McCarroll, p. 344 : Two of the foregoing officers at
this precinct were brothers-in-law to the contestee. None of these wit-
nesses discovered anything wrong, and say the election was fair.

Wall Hill Precinct.

" Jameson," supervisor, p. 94 : " No list of voters was kept ; " ad-
journed three-quarters of an hour for dinner ; 27 colored Republicans

324 DIGEST OF ELECTION' CASES.

applied to and could not vote, names not being on poll-book ; witness
knew some 15 of them ; Republican inspector could not read and write.
Contestee introduces no witnesses this precinct.

Lams Hill Precinct.

"Austin," p. 126 : Twelve persons were refused vote because names
were not on poll-book. All colored but two. Witness knew that some
of them resided in that election district.

" McGhee," p. 108 : About the same as the above. Republican in-
spector could not read and write.

No witnesses for contestee at this box.

Oak Grove Precinct.

" Wells," p. 109 : Five Republicans (voters of this district) refused
vote because their names were not on poll-book. Republican inspector
could not read or write.

Mount Pleasant Precinct.

" Mull," p. 109 : Was supervisor. Was tax-collector that district for
ten years. Clerks refused to keep list of voters, after witness showed
them the law requiring it to be kept. Some 15 whites were permitted
to vote whom witness did not know. Fourteen blacks and three whites
were not permitted to vote ; they were registered voters, but names did
not appear on the poll-book.

"Albright," p. 119 : Witness was inspector, and came to Holly Springs
after box and poll-book; box was delivered to him, but no poll -book
was in it ; poll-book was brought to precinct morning of election by one
Walker, a prominent Democratic politician of that precinct ; 17 persons
were refused a vote ; Republican inspector could not read and write.

Contestee^ witnesses. " Bassett," p. 375 ; " Howse," p. 372 ; "House,"
p. 372 : Thought the election was fair.

Early Grove.

" Briggs," p. Ill : Supervisor ; seven Republicans refused vote j
names not on book.

Contestee no witness at this box.

Waterford Precinct.

" Lacey," p. 112 : Was supervisor ; twenty-nine persons refused a
vote ; names not on poll-book ; witness knew them all as residents of
that election district ; some nine of them went to Holly Springs and
procured certificates of their having been registered i from the county
registrar, and came back and presented them to the officers of election,
but were not then permitted to vote.

" McKenney," p. 125 : Adjourned for dinner and box left in room ;
no one with it ; Republican inspector could not read and write.

Contestee has no witness at this, precinct.

Hudsonville Precinct.
"Boxley," p. 115 : Inspector. When polls closed all persons were

BUCHANAN VS. MANNING. 325

ordered out of room save election officers ; Gray and Selby, intelligent
Republicans, asked permission to remain, but were ordered out, and
the vote counted in secret. It will be observed that this inspector was
the only person opposed to Democrats who was permitted to be there,
and he could neither read nor write.

Contestee's icitnesses: "Gibbons," p. 348; "Mahon," p. 388: Discov-
ered nothing wrong at this precinct, and say election was fair.

Evans's Schoolhouse Precinct.

" Pegnes," p. 116 : Some five Eepublicans were refused a vote who
claimed to be registered; their names not on poll-book; was a general
turn-out ; Republican inspector could neither read nor write.

Contestee no witnesses at this box.

Bainesville Precinct.

"Carrington," p. 117: Fourteen Republicans and two Democrats
were refused a vote; names not on poll -book; all claim to be regis-
tered, many of whom witnesses knew as citizens of that election district;
Republican inspector could neither read nor write.

No witnesses for contestee.

DE SOTO COUNTY.

Horn Lake Precinct.

"Davis,"p.31: Supervisor. Polls opened one- quarter before 10 o'clock.
Adjourned from one-quarter before 1 till 2 o'clock. After closing of polls
box was taken by "Brooks," Democratic inspector. Witness "don't
know where to." Brooks remarking, "By God, this belongs to me to-
night." "It was dark and rainy." Witness went to the residence of
one Holliday, and in about three-quarters of an hour saw Brooks and
Dodge, Democratic inspectors, come in with the box. When box
was opened all the tickets on top appeared to be Democratic tickets except
five. There was much confusion, officers and bystanders preventing
witness from seeing the box. Two Greenback tickets thrown out and
not counted. About 35 Republicans were refused a vote because their
names were not on the poll-book. From time-wasting questions, closing
polls at noon, and other delays, between 75 and 100 Republicans went
home without voting. There were also 32 Republicans waiting to vote
when polls closed, and did not get to vote. Witness was cursed and
abused, and threatened with pistol by one Douglass during count of
vote. There was a large turn-out of voters.

"Turner," p. 33: Inspector. Corroborates much of "Davis's testi-
mony ; says box was not sealed when Brooks took charge of it. Wit-
ness could not read or write.

" McCain," p. 4G4 : Says adjourned about one hour. Corroborates last
witness.

Contestee's witnesses for this precinct are "Bowie," p. 248; "Clin-
ton," p. L'49; "Foster," p. 256; "Shaw," p. 259; " Halbert," p. 276;
" Woolbridge," p. 280. These witnesses contradict contestant's witness
(Davis), and testify that they saw nothing wrong at the election or
count.

326 DIGEST OF ELECTION CASES.

Hernando Court-House.

" Dockery," p. 28 : Republican inspector. Could neither read nor write.
Knows nothing of result of election save what others told him. Polls
adjourned for dinner, and one hour for supper. During adjournment
box was placed in room, and no one with it. Witness wanted to stay
with box, but officers insisted that no one should remain. Box was not
sealed. A number of voters of long standing at the box did not get to
vote, names not being on the poll-book. Large turn-out of Republi-
cans.

" Pratt," p. 25, Q. 9 : A large number of Republicans could not vote
at the box because their names were not on book. They were voters of
long standing at the box. A large turn-out.

"Bell," p. 29, Qs. 5 and 6 : Distributed Republican tickets at the box ;
thinks 35 or 40 Republicans were refused a vote ; names not on the poll-
book. Q. 4 : Was a general turn-out of voters. Republican inspector
could neither read or write.

Contestee's only witness at the box. a Dockery," p. 287, corroborates
much of above statement.

Olive Branch Precinct.

" Hayne," p. 35 :. Was inspector. Between 60 and 70 Republicans were
refused a vote, because their names were not on the poll-book ; also, quite
a number of others left, saying, " It was uouse trying to vote as so many
had been refused." Was a general and full turn-out.

" Haynie," (Greenbacker), p. 34 : Was supervisor ; says there were 56
Republicans who applied and were refused a vote, their names not be-
ing on the book.

" Wood," p. 445, Q. 4-5-6 : Was president of the Republican club.
Republicans more interested than they had been for five or six years.
Saw Republicans refused a vote all day. Witness was refused there.
and voted there ever since he was free, but could not vote; name not on
book this election.

Contestee's witnesses. " Pleasants," p. 267 : " Blecker," p. 264 : Does
not contradict evidence of contestant's witnesses.

Oak Grove.

" Clay," p. 25 : Supervisor ; polls adjourned one hour for dinner.
When polls closed, Nail, Democratic inspector, took the box to his house,
1 miles off, being accompanied by one Kirklaud. When witness found
box it was in possession of one Weiswaer, none of whom were election
inspectors, in a room with the door locked. They refused on first ap-
plication to let witness in room, but finally let him in. The vote was
not counted till about ten o'clock. Seventeen Republicans did not get
to vote; names not on book. General turn-out of voters.

" Harris," p. 45: Inspector; same testimony, and adds, the vote was
counted in private. A number of Republicans did not get to vote.
General turn out. Republican inspector could not read or write.

Contestee's witnesses. "Jones," p. 274; "Kirklaud." p. 246 : Admit
the box was not sealed, but a piece of paper tacked over the whole.
That Clay, supervisor, objected to taking box to Nail's house ; but
neither of them thinks that there was any unfairness in the election.

BUCHANAN VS. MANNING. 327

Hernando Depot Precinct.

" Howze," p. 20, Q. 13 to 16 : Supervisor. Polls opened 20 minutes be-
fore 10 o'clock. Poll-book used teas a forgery, made by Johnson, Demo-
cratic commissioner ; 28 colored Republicans were refused a vote, names
not on books. Vote not counted in public. Officers only permitted to
be present.

" Newson," p. 230, Q. 9 ; " Boone," p. 36, Q. 3 : Same,

u Watson," p. 440: Could not vote ; marked dead on poll-book.

Contestee's witnesses. u Johnson," p. 253 ; " Payne," p. 283 : Think
election fair.

Reynolds^ Store.

" Jones," Greenbacker, p. 35 : Knows every voter in the district ; turn-
out of voters larger than usual ; kept list of 9 Republicans not permitted
to vote ; adjourned one hour for dinner ; has full and particular list of
every man who voted Democratic ticket, and only 38 so voted ; but re-
turns show 57 Democratic voters.

" Durham," inspector, p. 43: Eleven persons refused a vote; witness
did not get to vote, names not being on poll-book ; witness never saw or
signed any returns ; Republican inspector could not read or write.

Contestee's witnesses." Boyce," p. 238 j " Myers," p. 288 : Says, X Q.
11, that Durham, Republican, signed returns by making his mark, and
X Q. 12, " I saw all the officers sign the returns," while Durham, testi-
fies he never did sign them.

Lauderdale Precinct.

" Boggan," Greenbacker, p. 36 : Supervisor. Polls were closed one
hour for dinner. Box not sealed, and left in room with no one present,
and same was done at adjournment for supper. General vote turned
out.

" Williams," p. 46 : Same testimony, and that some voters' names
could not be found on book ; was a full turn-out of Republican voters ;
Republican inspector could not read or write.

Contestee's witnesses. " Laughter," p. 234 : Corroborates above (sub-
stantially). Knows of no colored men voting Democratic ticket at his
box, and that none but officers of election were present at count of
vote.

Pleasant Hill Precinct.

" Todd," Greenbacker. p. 37 : Supervisor. Was appointed supervisor,
but did not serve on account of threats and exhibition of brass knucks.
Democratic friends advised him to leave; was busy all day distributing
tickets.

" Dockery," p. 44: Says there were at least 75 colored voters who
tendered Republican tickets and were not allowed to vote, their names
not being on the poll-book.

" Laughlin," p. 455 : Was president of Republican club. Knew the
Republican voters who were refused a vote ; could not see the box, nor
votes put in box; might have seen them " if I had had a ladder about
six feet high." Witness was there all day ; shows that Dr. Gray per-
mitted only one man to vote by making affidavit, and refused balance.
Republican inspector could not read or write.

328 DIGEST OF ELECTION CASES.

Contests witnesses." Dr. Gray," p. 268 : Admits that many Repub-
lirans did not get to vote; knows of two colored men voting Democratic
tickets, but thinks the election was fair.

Stewart's Precinct.

" Albritton," p. 39: Supervisor. No list of voters was kept; about
ten persons did not get to vote names not on books and ten other
Republicans who did not say (whether or not) they had duly registered
and were not permitted to vote. No white man was refused a vote.

" Scott." p. 12 : Republican inspector ; could not read or write, and
does not know anything about the result.

No witnesses examined by contestee for this box.

Lore's Station Precinct.

" East," p. 40 : Greenback supervisor. Adjourned one hour for dinner.
Box carried to Love's residence, some distance from polling place ; he
did not go with it j no list of voters was kept. Fifteen persons (mostly
colored) refused vote ; names not on book.

"Thomas," p. 13: Does not know whether returns were correct, or
not.

" East," p. 452, X Q. 13 : Thinks keyhole to box was not sealed at
adjournment for dinner.

Contestee's witnesses. "Henderson," p. 263: Corroborates witness
East to some extent, and does not think the box was tampered with.

NesMtfs Station.

"Bullard," p. 40: Thirty-four persons, including one white man, did
not get to vote, names not being on poll-book. There was a general
turnout.

11 Robinson," p. 43 : Adjourned one hour for dinner and two hours for
supper. Box at dinner was placed in care of one Bullard, not an officer
of election. Box at supper was given in charge to Bullard and taken
to dwelling for supper. Twenty-five or thirty Republicans who did not
get to vote, names not being on poll-book. Republican inspector could
not read or write.

Contestee's icitnesses. "Bullard," p. 295 : Was not an officer of elec-
tion. Box left in his charge at dinner for about an hour. Only knew
of three colored men who did not go out to vote. Adjourned two hours
for supper, when he took box, unsealed, to Marion's residence ; left box
in room, no one with it (in room adjoining dining-room), while eating
supper. Witness helped the officers to count the vote.

Louisberg Precinct.

"Bailey," Greenback er, p. 41: Supervisor. Polls opened about 20
minutes after 9 o'clock ; adjourned one hour for dinner and one hour
for supper. Witness objected to these adjournments, but was overruled.
About 12 persons could not vote because their names were not on poll-
book.

" Clifton," Greenbacker, p. 42 : No list of voters was kept. Was a
pretty full turnout of voters. Adjourned for about an hour at noon
and also an hour at supper.

"Clayton," p. 47: Corroborates above witness, and adds: At noon

BUCHANAN VS. MANNING. 329

adjourned. Box was taken to the residence of one Lauderdale, and at
supper by Democratic Supervisor Bailey to Louis's residence. Was
good turn-out of Eepublicans. Only officers of election were admitted
at the count of the vote.

Contestee's witnesses. " S. J. Dickey," p. 236 : Republican inspector j
could not write or read.

Eudora Precinct.

" Buchanan," p. 46 : Polls were adjourned one hour for dinner, and
box was abandoned in room near polling place, none of the officers re-
maining with it ; adjourned for supper, officers taking box with them ?
and counted vote near where the election was held. Eepublican in-
spector could not read or write.

Contested s witness. " Harral," p. 248 : Corroborates above witness
generally, but thinks election was fair.

Ingrain's Mills.

"Morton," Democratic inspector, p. 41: No list of voters kept; ad-
journed one hour at noon, and also at close of polls ; box being left at
adjournment in keeping of one of the clerks and one supervisor. None
of the election officers were Eepublican.

Contestee's witnesses. " Morton," p. 283 ; " Kerby," p. 243.

Lake Cormorant Precinct.

"McDowell," p. 10: Adjourned for supper, and box was taken to
"Wither's residence, about a mile off, and vote there counted.

" Butler," p. 11 : Got to Wither's house before six o'clock ; got our
suppers and then counted the vote. There were some names, Eepubli-
cans, on the poll-book marked moved from the district, but they were
allowed to vote ; Eepublican inspector could not read or write.

Cockrum Precinct.

"Gray," p. 15 : Adjourned for dinner one hour; adjourned for supper
an hour; box during these adjournments was taken to residence of one
Baker, and left there in bed-room with no one in charge of it. No per-
son was allowed to witness the count except election officers. Eepubli-
can inspector could not read or write.

Coutestee introduced no witnesses from this box.

LA PAYETTE COUNTY.

College Hill Precinct.

"Stockard": Supervisor. No list of voters kept. Adjourned for one
hour when polls closed, which was opposed by witness. The ballot-box
during the time was left in the room where the election was held, aud
no one was left with it. The door was locked by one Quarles (not an
election officer), who took the key. There were two doors to the elec-
tion room (of store-house). The candle was left burning when they left
the room. Quarles came back and requested witness to go back into
the election-room with him, which he did, and Quarles blew the light out
as they came out. In about ten minutes witness observed another light

330 DIGEST OF ELECTION CASES.

burning in the election-room, which burned but a short time. There was a
large turn-out of Republican voters is a large Republican box. The
witness could not see in room where box was during adjournment. The
key-hole to box was not sealed during the adjournment. Nine or ten per-
sons were refused a vote ; names not on the poll-book (one white man
among them).

" Buford," p. 265 : Corroborates the above as far as he goes. The
Republican inspector could not read or write.

Contestee's witness. " Matthews," p. 316 ; " Luckie," p. 318 : All say
the election was fairly conducted.

North Oxford Precinct.

The Republican inspector could not read or write.

" Lolt," p. 57: There was a large turn-out of Republicans. The can-
non shooting bursted the plastering over our heads, and it fell on wit-
ness, cutting his face. The election was in consequence temporarily
suspended, and the Republican supervisor was greatly alarmed.

Witnesses Scraggs, p. 51, and Fitzhugh, p. 55, as to the terrible effect
of cannon shooting into voters ; also Nunnally, p. 210, who met crowds
of voters going home.

Contestee's witness. " Butler," p. 303.

South Oxford Precinct.

"Kenneday," p. 59: There was an adjournment for about a half hour
at the close of polls, and the box was placed in chancery clerk's office.

" Hamblet," supervisor, p. 60 : Adjourned at 6 o'clock for an hour,
and the box was put in the vault in chancery clerk's office, and Brown,
chancery clerk, had key to office. About 30 persons were refused a
vote, their names not being on books. They were mostly Republicans.
Witness protested against adjournment. Republican inspector could
not read or write.

Taylor's Depot Precinct.

"Tyson," p. 66, Republican inspector: Adjourned for one hour at din-
ner, and along in the evening adjourned again for an hour; then opened
the polls again for 30 or 40 minutes, when polls were closed, it being
then 6 o'clock. The box remained in possession of witness during the
adjournment; vote was counted with closed doors, and no one was al-
lowed to be present except the election officers.

The Republican inspector could not read or write.

Springdale Precinct.

" Weathersby," p. 67 : Adjourned one hour for dinner, when Shipp,
Democratic inspector, took box to his house. The Republican inspector
could not read or write. Contestee introduced no witness.

Abbeville.

"Porter," supervisor, p. 100: Kept tally of Republican vote; witness
also kept list of 36 Republicans who were not permitted to vote, names
not being on poll-book; also 3 whites. The night was dark and rainy.
Adjourned for supper at 6 o'clock ; the box, being locked and sealed,

BUCHANAN VS. MANNING. 331

was left iu the room where election was held, in charge of no one.
There were two rooms and one window to the house. Witness says
Republicans polled 207 votes ; could distinguish Republican tickets
from Democratic tickets ; box was locked but not sealed ; when they re-
turned to count the votes Crosby, Democratic inspector, admitted he
had been in there; there was a general turn-out of the Republican
vote.

" McDuff," inspector, p. 69 : Says they were counting vote when he
returned, and that box was left as stated by witness.

Porter, Republican inspector, could not read or write.

Contestee's witnesses. " Porter," p. 320; "McGowan," p. 321; " Hous-
ton," p. 322; "Graham," p. 323: Corroborate above, and add there
were 307 Republican votes cast and only 145 Democratic. Returns, p.
391, show 216 Democratic and only 135 Republican votes returned.

" Stoners," p. 324 ; " Burkley," p. 325 : None of contestee's witnesses
discovered anything wrong, McGowan thinks everything was " fair
and square," and he is the witness who told witness personally that he
" would stuff a ballot-box if necessary to seat Republicans."

Sander's Store Precinct.

" Cezar Pegnes," p. 69: Republican inspector. Witness is nearly blind.
Polls adjourned one hour for dinner. Mentions other competent and
suitabte Republicans being there who were intelligent. Republican in-
spector could not re'ad or write.

Free Springs Precinct.

" Caldwell," p. 72 : Polls adjourned one hour for dinner, Democratic
inspector taking box to residence of one " Houston," and witness took
poll-books. Neither party turned out full vote. Republican inspector
could not read or write.

.' %
Dallas Precinct.

" Watt," p. 74 : Polls adjourned one hour for dinner, Democratic in-
spector taking box to residence of one Langford. Box was not sealed.
Vote was counted with closed doors. Republican inspector could not
read or write.

PANOLA COUNTY.

Sardis Precinct.

" Small," p. 157 : Was supervisor. The two county election commis-
sioners held the election and are not sworn (this is nowhere contradicted).
Adjourned one hour or more for supper, over protest of supervisor.
Box is placed in vault of clerk's office, and who has the key is not stated.
There were nineteen more tickets in the box than there were persons
who voted, as shown by list kept by clerks and supervisors. Thirteen
Republicans, registered voters, who could not vote, names not on poll-
book. Neal and Russin, two Democrats living at another precinct, are
allowed to vote.

Contestee's witness. " Balch," p. 147.

332 DIGEST OF ELECTION CASES.

Como Precinct.

" Jackson," inspector, p. 168 : Polls adjourned for supper. Box taken
to Breckenridge's (whisky shop), and no one left with it (see diagram,
p. 168) during supper. Witness was first officer to return from supper,
and is let into the room (where box was left) by one " Spears," who was
not an election officer. Witness cannot read writing. Some thirty-six
persons, chiefly Republicans, could not vote ; name not on poll-book.

" Jones," p. 159 : Confirms foregoing witness as to adjournment and
box ; clerks kept no list of voters ; witness saw twenty-three persons
refused a vote, mostly Republicans ; names not on books ; a number of
Democrats, planters and merchants, are permitted to remain in the room
all day ; Republican inspectors could not read or write.

" Crary," p. 134, contestee's witness : Was officer of election, but was
not present when count was commenced.

Longtown Precinct.

" As. Kerv," p. 163 : Supervisor. Polls adjourned for supper. Box
taken off by Fowler, Democratic inspector. Witness does not know
where box was taken. Witness and Republican inspector protest against
box being removed, but are overruled. No list of voters was kept.
Parties could not vote on account of adjournment. Election was held
at saloon of one Baily. Rough words were used because witness and
Republican inspector insisted that box should not be removed. Vote
was counted in a different house from where the election was held.

" Littlejohn," p. 164 : Witness corroborates foregoing witness as to all
material points.

Gontestee's witness. " Mitchell," p. 150.

Pleasant Grove Precinct.

" Jones," p. 162 : Supervisor. Polls adjourned one hour for dinner,
and box locked up in room and no one left with it. Witness protests
against this adjournment.

Polls adjourned for supper one hour, and box taken by Taylor, Dem-
ocratic inspector, to supper.

Contestee's witnesses. " Floyd," p. 145 ; " Carter," p. 144 : Say election
was fair.

Springport Precinct.

" Loiret," supervisor, p. 166 : When polls closed adjourned for supper.
Box not sealed, but deposited in room adjoining where election was
heid, and no one left with it. No list of voters was kept.

Contestee's witness, " Keaton," p. 135.

TATE COUNTY.
Arkabutla Precinct.

" Dangerfield," p. 180 : Polls were closed one hour at noon, and box
taken to Eason's dwelling and locked up in a room, no one remaining
with it. Also adjourned one hour for supper. Box taken to same place
and left unguarded. Contestee has no witnesses.

BUCHANAN VS. MANNING. 333

Independence Precinct.

" Walker," p. 180 : Polls closed one hour for dinner. Box taken to
dinner by Morrison, Democratic inspector. Also adjourned one and a
half hours for supper, and box taken to supper by Powers, Democratic
inspector. The inspectors at this precinct were all Democrats.

Coutestee has no witnesses at this precinct.

Senatobia Precinct.

" Carrington," p. 176 : Polls adjourned for one hour for dinner, and
box taken by Waits, Democratic inspector, who carries it to his residence
over protest of witness.

Coutestee introduced no witness at this precinct.

Sherrod -Precinct.

" Wright," p. 182 : Was clerk of election, and testifies he was not sworn.
Polls adjourned one hour for dinner, box remaining in hands of super-
visor and one inspector. Twenty Kepublicans refused a vote ; names
not on poll book.

Couteatee has no witnesses at this precinct.

Looxahoma Precinct.

"Briggs," p. 179: Says polls adjourned three quarters of an hour for
dinner, and box remained in room where election was held, witness and
others remaining with it, thinking election was fair. Witness thinks
election was fair.

Taylor's Precinct.

" Haynes," p. 175 : Supervisor. Testifies to the plan laid by the Demo-
cratic inspector to break up the election by refusing to hold an elec-
tion or preventing any one else from holding it, and that it was frus-
trated by the persistent efforts of this intelligent supervisor. This is the
largest ^Republican box in the county. (See returns, p. 392.)

We have not thought it necessary to make reference to evidence by
precincts where the election seems to have been fairly conducted, and
where the election is not challenged by contestant, and where he intro-
duces no witnesses.

TAL.LAHATCHIE COUNTY.

Charleston Precinct.

"Pollard," p. 193: Polls opened at usual hour; adjourned for dinner
for one hour. Box was taken by Democratic inspector to residence of
one Polk ; during this time vote was counted privately and admission
was refused to every one ; 29 " Buchanan's" tickets thrown out as being
too narrow.

Contestee's witness. "Betts,"p. 419; " Leigh," p. 415; u Wynn," p.
409 ; " Borvoy," p. 407 : Say election and count was fair.

Brooklyn Precinct.
u Crawford," p. 192 : Was inspector ; adjourned one hour for dinner

334 DIGEST OF ELECTION CASES.

and box taken by Democratic inspector to his boarding-house ; witness
did not go with it.

Contestee's witness." Lafriue," p. 415 : Says that the count was made
with closed doors.

Jenning^s Store Precinct.

Contestee's witness. "Houston," p. 406: Polls opened between seven
and eight o'clock, and adjourned three quarters of an hour for dinner,
Phelps, Democratic inspector, taking charge of box. Vote was counted
with closed doors.

Leveretfs Store.

Contestee's witness. " Blood worth," p. 410 : Polls opened as " near six
o'clock as we could." Count was made with closed doors. Witness
says that Eepublicans usually carry this box by some 65 or 70 majority ;
that there was a good turn-out, and that there were only 15 or 20 white
voters at box.

Dog Moor Flat Precinct.

Contestee's witness. " Demnan," p. 412 : Polls opened about seven
o'clock and closed about sundown. It was a Republican box.

Eecord, p. 392 : The county canvassers fail to make any return of the
vote of this county by precincts.

" Hibernia " Precinct.

" Greene," p. 191 : Supervisor. Witness remained until 5 o'clock ; 69
votes had been counted up to that time ; all Eepublicans. Mr. Eay,
Democratic inspector, held the election.

" Downey," p. 195 : Shows that box was thrown out and not counted
by county commissioners, and that Eay took out all books and box to
hold election.

Contestee's witness. " McAfee," p. 418 : Testifies that blank forms for
making returns were sent out in all the boxes.

Ross's Mill Precinct.

" King," p. 191 : Inspector. Polls adjourned one hour for dinner, and
box was taken by Democratic officers to Boss's residence. Witness did
not go with it. Contestee introduced not any witnesses at this box.

A part of the committee find that the evidence does not satisfy their
minds that a conspiracy existed for the purpose of defeating contestant j
but to the minds of the majority this proposition is quite certainly estab-
lished, and as proof of this we briefly call attention to a few facts shown
by the evidence. By the census of 1880 (see Eecord, p. 199) it is shown
that the six counties of Marshall, De Soto, Panola, La Fayette, Talla-
hatchie, and Tate contained a population in the aggregate as follows :

Colored 79,204

White 52,744

Taking the rule that one in five are voters, we have

Colored voters 15,840

White voters 10,544

Colored majority 5, 296

BUCHANAN VS. MANNING. 335

And it is shown beyond a doubt that five of these counties had and!
have large Republican majorities, and only one (La Fayette) which has
a small Democratic majority; yet in these counties we find that the
Eepublican majority is, prima facie, 5,296.

The evidence shows very conclusively that there are at least as many
white Republicans in these counties as there are black Democrats.
The returns from these counties and others composing the district
(Record, page 392) show that Harris, the Greenback candidate, received
3,585 votes, and that most of these were cast by white voters, and no
part of these votes were cast in either of these six counties except in
the county of Panola, w r here he received about 400 votes. The white
votes received by him in these six counties are as follows (Record, page
392):

De Soto County 83-

La Fayette County ' 301

Marshall County 313

Tallahatcliie County 17

Tate County 299>

Panola County 487

Total 1,500-

Colored majority as stated in these six counties being 5, 296

Deduct colored vote in Panola County 400

4,896
Add white vote for Harris in these six counties 1,500

6,396

By this it appears that contestee was in the minority in these six
counties, 6,396; yet in the face of this the returns (see Record, page
393) give the contestee a majority of 2,153 votes. This state of affairs
cannot but create suspicion, and engender a belief that the Mississippi
plan succeeded.

And your committee would state that the above is based on the evi-
dence of contestee (Record, page 215) and the witness Wimberly (page
470 of Record, question 1 on cross-examination).

It would extend this report to an unprecedented length to give in de-
tail all the evidence tending strongly to prove a conspiracy to do just
what was done, to wit, to count in the contestee at all hazards. But
we briefly state that the evidence shows that in over fifty places the
ballot-boxes were taken away, and out of the view of the supervisor,
either at noon or after the polls were closed, and carried to private resi-
dences and locked in rooms and left unguarded, and the supervisors not
even allowed to remain with them. All this against the earnest protest
of the supervisors. All of these things were in direct and flagrant vio-
lation of law ; and the evidence shows that in several instances the vote
was counted in secret, and not in public, as the law requires. And we
quote the language of our honorable chairman in his report : " The elec-
tion was conducted without regard to fairness or common decency , v
In this the majority sincerely concur. That all kinds of illegal and
fraudulent practices were resorted to by the friends of the contestee in
these six counties, knowing that a full vote and fair count would, as he
himself stated to the witness Harris, be almost solid against him; and
in fact the votes were so cast, but not so counted or returned.

It is evident contestee and his friends had the power if they had the
votes to carry the election honestly, and if honestly convinced that they
had a majority of the votes they certainly would never have resorted

336 DIGEST OF ELECTION CASES.

to the shameful frauds they did to count contestant out in these coun-
ties known to have large Republican majorities. Why did they, as
the evidence shows they did, close the registration of voters ten days
before the election in these counties of De Soto, Pauola, and Marshall,
each with very large Republican majorities, and five days before the
election in the Republican county of Tallahatchie ; and why, in violation
of law, close the registration of voters, in the counties of La Fayette and
Tate from a week to ten days before the election by sending the books
away from the clerk's office to be carried around through the counties
to Democratic meetings, so that Republicans could not register when
they came to the office for that purpose, and then were refused after-
wards because, as they were informed, the time for so doing had passed!

Why did the governor and State board select men in these counties as
commissioners to act in behalf of the Republicans who could neither read
nor write (and the evidence shows that this class of men were selected
in forty-two precincts in these counties), and refused to select any man
designated by the Republicans, and also refused to appoint a Green-
backer for the false and groundless reason that there was no such polit-
ical organization, when the evidence shows that there was a well organ-
ized Greenback party in each of these counties, and numbered amongst
its adherents as intelligent men as could be found in the State ? But
why at the same time did this same board select as commissioners for
the counties named to act for and oh part of the Democrats, to wit, in
the counties of De Soto, Panola, Marshall, La Fayette, and Tallahatchie,
men who have been indicted and convicted of the crimes committed at
this election, and as stated in the evidence taken in this contest f And
we can but conclude that these things were done in pursuance of a con-
spiracy to unite in a common purpose to cheat and defraud the contestant
out of his election.

To all that the evidence discloses there is but one answer, and that
is that there was a conspiracy to do these things, and that the purpose
was accomplished by a universal disregard of all laws, and a high-handed
and reckless debauching of the ballot-boxes, and a treacherous and in-
human trampling down of the rights of the citizen who dared to vote
his honest convictions, if those convictions led him to vote any other
ticket except the Democratic ticket. And the evidence shows that these
outrages are not the result of prejudice to color, but only because of the
disposition on the part of the Democrats of that district to carry their
election against all opposition, and by any means that will accomplish
that object.

SUMMING UP.

First. The appointment of illiterate officers of election is such a mani-
fest disregard of duty and violation of statute law as to render void the
whole appointment of election officers. One of the essential duties of
county commissioners and precinct inspectors is to sign and certify the
returns, and their duty cannot be performed by a person who cannot
read and write. Where three persons are named in a statute as neces-
sary to perform an official duty, all must be appointed and all must act,
though a majority may control (see Ballard vs. Davis, 2 George's Miss.
Reports ; also authorities heretofore cited). Hence the appointment of
illiterate inspectors and commissioners of election would vitiate the
whole appointment and destroy the election.

Second. But we do not wish to rest our report on so technical a ground,
and hence we hold that the appointment of illiterate inspectors and

BUCHANAN VS. MANNING. 337

commissioners takes away from the return of the election officers that
presumption of truth which otherwise it would have, and a party claim-
ing a seat on the return of such officers must show the utmost good
faith in the election.

Third. In the case before us, 1st, the action of the governor and
State board, their refusal to allow the opposition party to name any of
the election commissioners; 2d, the same action on the part of the
county commissioners in appointing the precinct inspectors ; 3d, the
appointment of corrupt and illiterate officers ; 4th, the systematic ad-
journments of the election without sufficient cause ; 5th, the premature
closing of the registration books, and refusal to register Republican
voters, the erasing of names of Republican voters already registered,
and the forgery of poll-books ; Gth, the failure to openly count the vote
at the closing of the polls ; 7th, the changing of polling places ; 8th, the
abandonment of ballot-boxes during adjournment, and of their carrying
off to private houses during adjournment ; the interference with and
exclusion of United States supervisors ; 9th, the fact that these practices
were in counties haviug large Republican majorities, are conclusive
evidence of a conspiracy to defraud.

This being a conspiracy to defraud, there being proof of fraud at a
number of precincts, and the illiterate inspectors leaving the door open
to unlimited fraud, and there being no proof by Coutestee of good faith
in the election, it must be set aside.

Among all the cases passed upon or now under consideration by your
committee we do not find such a condition of affairs as is presented in
this case.

One of the principal arguments urged in behalf of cont&stees in other
cases from the South is that the Republican party in that section is
largely composed of illiterate colored voters, and that the ascendency
to power of such a class would be not only offensive but oppressive;
and that therefore the frauds committed were either justifiable or ex-
cusable for the protection of the intelligent and property-holding classes
of society; and such argument has been used with great force.

In this district, however, while it appears that the colored voters are
almost universally Republicans, there is no insignificant portion of the
party made up of white voters, men of wealth and intelligence. And
those who constitute the Greenback party of the district (they polling
about 3,600 votes at this election) are chiefly white voters, lawyers,
physicians, and owners of large landed estates, many of whom, as the
proof shows, were formerly leaders and held controlling positions in
the Democratic party of the district. Yet it is shown that the hostility
towards the Greenbackers upon the part of the Democratic party is
just as bitter as against the Republicans of the district, and that they
are pursued with the same vindictiveness ; and their complaints that
they are practically disfranchised are just as loud as are the complaints
of Republicans.

In reaching a decision in this case we have not been compelled to rely
on the evidence of the partisan friends of contestee or contestant alone,
but largely upon the testimony of the Greenbackers^ who are men of in-
telligence and high standing, as appears by their evidence.

In conclusion, while we are morally certain from the general tenor of
the evidence before us that the contestant was grossly defrauded in the
election, and while we have no doubt but that he could have proved a
clear title to a seat in Congress, we are compelled to say that he has
not made out that proof by proper legal evidence. We know the labor,
H. Mis. 35 22

338 DIGEST OF ELECTION CASES.

expense, and experience required to disclose frauds carefully concealed 7
but we do not feel justified in departing from tbe rules of evidence so-
far as to seat the contestant. We are, however, fully satisfied that there
was no legal election in the second district of Mississippi, and that the
contestee should not longer be permitted to retain a seat which is cov-
ered over with fraud. Therefore we recommend the adoption of the
following resolutions:

Eesolved, That George M. Buchanan is not entitled to a seat in the
Forty-seventh Congress.

Resolved, That Van H. Manning is not entitled to a seat in the Forty-
seventh Congress from the second Congressional district of Mississippi.

WM. G. THOMPSON.

JOHN K. LYNCH vs. JAMES E. CHALMERS.

SIXTH CONGRESSIONAL DISTRICT OF MISSISSIPPI.

Contestant charges fraud and violation of law on the part of the commissioners of
election ; that they refused to count votes lawfully cast for contestant because
no list of voters was sent with the returns by the precinct officers, because there
were more ballots in the box than there were names on the poll-list, because the
precinct returns were not certified to by the inspectors or the clerk, and because
a large number of ballots bore on their face "devices or marks."

Held, That the rejection of returns because no list of voters was sent with them wa
improper, and contestant should be given the benefit of such rejected votes.

That the rejection of returns because of excess of ballots over names on the poll-list
was improper, and the vote proven should be counted.

That the omission of the certificate of the precinct inspectors and clerk to a precinct
return is cured by a certificate of the commissioners of election as to the number
of votes rejected for that reason.

That the printer's dashes, such as were used on the tickets in this case, and objected
to as being " devices or marks," are known among printers as punctuation marks ;
that they were not used or placed upon the tickets for the purpose of distinguish-
ing them from any other tickets, nor as a device for that purpose, and not being
of themselves devices they are not inimical to the statute which provides " all
ballots shall be * * * without any device or mark by which one ticket may
be distinguished from another."

The House adopted the majority report.

APRIL 6, 1882. Mr. CALKINS, from the Committee on Elections, sub-
mitted the following

REPORT:

Your committee, to whom was referred the above-entitled contested-election
case, having had the same under consideration, leg leave to report : j;.

That the contest in this case was commenced by contestant, and the
following facts were set out by him in his notice as the grounds on
which he relied to maintain it:

First. He alleges as a fact that he received the highest number of

LYNCH VS. CHALMERS. 339

legal votes cast in the sixth Congressional district in Mississippi for
Representative in the Forty-seventh Congress.

Second. That the true result and return was suppressed and made to
appear the other way by reason of frauds and violation of law, more
particularly set forth as follows:

a. In Adams County, city of Natchez, Jefferson Hotel and Washing-
ton precincts, Republican voters were purposely and fraudulently hin-
dered and delayed in voting until the time arrived for the closing of
the polls, leaving several hundred voters standing around the polls
anxiously waiting to vote, of wliich privilege they were deprived by a
systematic course of delay set on foot and carried out by prominent
Democrats and the election officers.

&. That in Washington, Kingston, Pine Eidge, and Beverly precincts
the ballot-boxes were tampered with and stuffed, and the further viola-
tions of the law in refusing to allow the United States supervisors to be
present and witness the counting of the votes after the election closed ;
and at Palestine and Dead Man's Bend precincts, in said county, the
election officers fraudulently and unlawfully refused to count the votes
polled, whereby 214 votes majority in those precincts were lost to con-
testant.

c. Jefferson County. At Eoduey precinct, where the contestant re-
ceived 145 majority, the officer in charge of the returns, on his way to
the county-seat, with the papers declaring the result of the election,
was intercepted, the returns forcibly taken from him and destroyed,
whereby the result was lost to the contestant.

d. Clailorne County. At the precinct of Grand Gulf the United States
supervisor of elections was refused the right to be present to witness
the count, and the ballot-box was stuffed.

e. Warren Couniy. That the commissioners of election threw out
2,029 lawful votes cast for the contestant, and refused to count them.

/. Issaquena County. That the commissioners of election threw out
785 lawful votes cast for the contestant and refused to count them.

g. Washington County. At the voting precincts of Stoneville Refuge
and Lake AVashington, 170 votes for the contestant were thrown out.
At Greenville, Eobb, and Stone precincts the ballot boxes were taken
away and counted in the absence of the United States supervisor of
election, and without his consent and against his protest. At the
Court-House precinct, as well as at the said precincts of Eobb and Stone,
ballot-boxes were corruptly stuffed.

h. Bolivar County. At the precincts of Australia, Holmes Lake, Boli-
var Lauding, and Glencoe, 678 legal votes for the contestant were ex-
cluded by the officers of election without cause.

i. Coahoma County. That the officers of election excluded and refused
to count any of the votes polled in any of the various precincts of that
county, except Friar's Point, whereby 700 votes were lost to the con-
testant.

To this notice the contestee, answering, denied the allegations of
fraud in Adams County, and denied specially the other allegations of
contestant's notice relative to the various precincts therein, except Pal-
estine and Dead Man's Bend. In those two precincts the coutestee al-
leged that the ballots were rejected strictly in accordance with the laws
of Mississippi.

2d. As to Eodney precinct, the contestee admits that there were 247
votes cast for the contestant and 92 for the contestee, and that they
were destroyed, but that they ought not to be counted unless it is shown

340 DIGEST OF ELECTION CASES.

they were in accordance with section 137 of the Kevised Code of Missis-
sippi of 1880.

3d. As to Claiborue County, it is denied that the boxes were stuffed,
or that the United States supervisor was refused permission to be pres-
ent at the counting of the. ballots.

4th. As to the votes in Warren County, the contestee alleges in an-
swer specially, that 628 of the 2,029 ballots were not counted for the
following reasons: (a) That at Bovenia precinct 174 ballots were too
wide ; (b) that at the Fourth ward precinct, city of Vicksburg, 214 bal-
lots had marks upon them ; (c) that at Prior's Church precinct, 240
ballots had marks upon them ; (d) that at the other preciuts in said
county there were 1,821 'ballots marked in violation of law, and wre
not counted, which makes a total of 2,049, of which 2,029 had on them
the name of contestant, and 20 the name of contestee.

5th. As to Issaquena, County the contestee alleges that the officers of
election rejected the returns made from Skipworth, Ben Lemood, Ingo-
mar, and Hayes' Landing precincts, because the officers of election did
nof comply with the law, and that the ballots and tally-list did not cor-
respond by from 40 to 60 votes, and that at Hayes' Landing precinct,
in addition to the above grounds, the' whole crew of a steamboat landed
there that day and voted without being registered.

6th. As to Washington County, a general denial is put in, and in ad-
dition, contestee alleges that the Stoneville box was rejected because
the officers did not comply with section 139 of the Code of Mississippi,
and that the box had been taken out of the sight and control of the
officers by one Johnson, a p'artisan of contestant. The Lake Washing-
ton box was not counted, because the ballots were not sent up to the
.commissioners of election, but the statement signed by the clerks and
sent up showed a majority of 116 for contestee.

7th. As to Bolivar County, contestee makes a certificate signed by
the commissioners of election of that county a part of his answer, and
affirms, as we understand it, the legality of their action. They report
that they threw out the Australia precinct box 30 Democratic and 192
Eepublican votes

Because the returns were not certified to by the inspectors or the clerks. We have
thrown out the Holmes Lake precinct, because the box was not opened nor the ballots
counted by the inspectors and numbered by the clerks, and no returns or tally-sheet
made.

We have thrown out the Bolivar precinct, 45 Democratic and 311 Republican votes,
because there was no certified return from the inspectors and clerks. The tally-sheets
sent in the box show the names of the electors of the Democratic and Republican
parties of James E. Chalmers, John R. Lynch, G. B. Lancaster, M. Rolous, James

Winters, Fleming, and James White, but does not show for what office they

were voted for. The tally is kept on four different sheets of paper. The total can
only be guessed at, but not ascertained correctly.

We have rejected the Glencoe precinct vote, 27 Democratic and 233 Republican
votes, because the vote was counted out in part by all the inspectors and clerks and
then discontinued until next day, when the count was finished by one inspector and
one clerk, and a very imperfect tally-sheet and return sent in by these two, not cer-
tified to.

JOHN H. JARNAGIN,
, RILEY ROLLINS,

W. A. YERGER,
% Commissioners of Election.

8th. As to Coahoma County, the contestee denies the allegations of
contestant, and affirms that the acts of the election officers were
strictly in accordance with the laws of Mississippi. Appended to con-
testee's answer the following notice is addressed to the contestant :

LYNCH VS. CHALMERS. 341

Notice to Hon. J. R. Lynch.

And now, having answered all of your specifications, you will take notice that I
will insist and endeavor to prove and maintain:

1. That yon did not receive a single legal vote in the sixth Congressional district of
Mississippi for member to the Forty-seventh Congress of the United States; that all
your tickets were marked so that they could be, and were, easily distinguished by
persons who could not read, from the Democratic ticket, and also from the regular
Kepublicau ticket, printed. at Jackson, Miss., under the supervision of the executive
committee of the Republican party, and that your tickets were illegal because not
such as is prescribed by section 137 of the Revised Statutes of Mississippi, 1880.

2. That these marked tickets were examined and approved by you before they were
circulated, and that you paid four dollars per thousand for these marked tickets,
when you could have procured from the Republican Executive Committee legal tickets
for your district for one dollar per thousand.

3. That you made false representation to the secretary of state of Mississippi about
the printing of your tickets, when attempting to prevent him from issuing to ine a
certificate of election.

4. That your friends and partisans, in violation of law, and contrary to the very
essence of voting by ballot, stood at the polls and kept a list of the voters and I>ow
each voted as the ballots were handed in.

5. That at Stoneville and Refuge precinct, in Washington County, your friends
and partisans, some of whom were United Stales supervisors of election, browbeat,
bullied, and intimidated a number of colored voters who desired to vote for me, and
prevented them from so voting.

6. I will insist and maintain that you were unpopular with your own party for many
reasons, and especially because you opposed the nomination of General Grant for
President, and that a large number of leading colored Republicans supported me on
the stump and at the polls: that I was elected and you were not.

JAS. R. CHALMERS.

LEGAL PROCEEDINGS.

It appears from the record that on the 16th day of November, 1880,
the contestant went before the Hon. J, A. P. Campbell, one of the
supreme judges of the court of Mississippi, and acting as chancellor of
the chancery court of Hinds County, Mississippi, and tendered his
sworn bill of complaint, in and by which he sought to enjoin the Hon.
Henry C. Meyers, secretary of state, from declaring the contestee
duly elected a Representative in the Forty-seventh Congress from the
6th Congressional district of Mississippi. Among other things in his
bill of complaint the contestant alleges that the returns filed in the
secretary of state's office from the several counties showed that he re-
ceived the votes following:

Adams County 1, 194

Bolivar County. 1,715

Clairborne County 288

Coahoma County 1, 112

Issaqneua County 1, 118

Jefferson County 386

Quitman County 83

Sharkey County ; 175

Tunica County fi06

Warren County y. 2,086

Washington County 1,298

Wilkinsou County 814

Total number of votes 10, 775

And that the contestee received the following votes :

Adams County 1,419

Bolivar County 403

Clairborne County 1, 061

Coahoma County 553

Issaquena County 173

Jefferson County 1, 042

342 DIGEST OF ELECTION CASES.

Qnitman County 153

Sharkey County 484

Tunica' County 239

Warren County - 1,03

Washington County 1,963

Wilkinson County 1 , 69 1

Total number of votes 10, 210

He also alleges that there was deducted from the votes thus received
for him iii the counties of

Adams 316

Bolivar 7:56

Coahonia 760

Issaquena 75

Jefferson 250

Warren 2,029

Washington 526

Total votes rejected 5, 402

And from the vote of said Chalmers in the counties of

Adams 32

Bolivar 102

Coahoma 328

Issaqueua 114

Jefferson 92

Warren 20

Washington 356

Total votes rejected 1, 044

And he claimed that the deductions made from his vote were un-
authorized and unlawful, and he asked the intervention of the court to
prevent the issuing of a certificate of election to the coutestee.

Judge Campbell made the following indorsement on the bill of com-
plaint :

I decline to grant the injunction prayed for in the annexed bill, because the House
of Representatives of the Congress of the United States is the exclusive judge ." of the
elections, returns, and qualifications of its own members" (made so by the Constitu-
tion of the United States), and a decision of the question as to the election of a mem-
ber of Congress by any other tribunal would not be authoritative or final. Besides this,
the chancery court is not authorized to decide contested elections, and whatever
its right, if any, to enjoin in aid of a contest inaugurated in a court of the State,
which such court could lawfully determine, it appears to be clear that interference by
injunction to prevent an executive officer from pei forming a duty prescribed by law,
in reference to an election as to which no court can decide, so as to conclude anybody
or thing, would be without the semblance of right.

J. A. P. CAMPBELL,
One of the Judges of the Supreme Court of Mississippi.

JACKSON, Miss., November 17, 1880.

By the revised code, 1880, of Mississippi, the following provision is
made relative to the writ of mandamus :

SEC. 2542. On the petition of the State by its attorney-general, or a district at-
torney, in any matter affecting the public interest, or on petition of any private per-
son who is interested, the writ of mandamus shall be issued by a circuit court com-
manding any inferior tribunal, corporation, board, officer, or person to do or not to do
an act the performance or omission of which the law especially enjoins as a duty re-
sulting from an office, trust, or station, and. where there is not a plain, adequate, and
speedy remedy in the ordinary course of law.

Under this section the district attorney of Tunica County filed his
petition in the circuit court of that county against the election commis-
sioners to compel them to reassemble and reject 506 ballots which had
been counted for the contestant, Mr. Lynch, and which were claimed to
be illegal because they contained marks and devices in violation of the
election laws. The petition was denied, and an appeal was taken to

LYNCH VS. CHALMERS. 343

the supreme court of the State. The case is reported iu 58 Mississippi,
502, and is as follows :

IRA D. OGLKSBY, DISTRICT ATTORNEY, )

VS. >

J. I. SlGIMAN ET AL., COMMISSIONERS OF ELECTION. )

Appeal from circuit court, Tunica County, Hon. Samuel Powell, judge.

On the 9th of December, 1880, Ira D. Oglesby, district attorney for the third judi-
cial district, filed a petition in the circuit court of Tunica County for a. mandamus to
compel the commissioners of election iu that county to reassemble and recauvass the
returns made to them by the inspectors of election of the votes cast at the election on
the 2d of November, 1880, for a member ^f Congress from the sixth Congressional dis-
trict, and to make a statement of the result of such recauvass to the secretary of state
within a time to be prescribed by the court. The petition alleged that the commis-
sioners of election had counted 506 ballots which were illegal because bearing certain,
marks and devices prohibited by the statute on elections, and prayed that in the
recanvass they be required to reject such illegal ballots. The petition was tiled under
section 2542 of the Code of 1880, and stated as j urisdictional facts that the public is
deeply interested in getting a construction of the election law of this State as to the
duties of the inspectors and commissioners, concerning which conflicting views are
entertained; that these officers are liable to criminal prosecutions, under the laws of
the State and of the United States, for any omission or violation of their duties; and
that the commissioners of Warren County have already been indicted and arrested for
their acts, under the election laws. A jac simile of the ballots alleged to have been,
illegally counted was attached to the petition, and is as follows :

REPUBLICAN NATIONAL TICKET.

For President,
JAMES A. GARFIELD.

For Vice-President,
CHESTER A. ARTHUR.

For Electors for President and Vice-
President,

HON. WILLIAM R. SPEARS.

HON. R. W. FLOURNOY

DR. J. M. BYNUM,

HON. J. T. STETTLE

CAPT. M. K. MISTER, JR.,

DR. R. H. MONTGOMERY,

JUDGE R. H. CUNY,
HON. CHARLES W. CLARKE

For Member of the House of Represent-
atives from the Gth Congressional
District.

JOHN R. LYNCH

344 DIGEST OF ELECTION CASES.

The writ of mandamus was issued, and the commissioners of election appeared
and demurred to the petition on the following grounds :

1st. That they are merely ministerial officers, and have no power to reject ballots
that have been counted by the inspectors.

2d. That the marks on the ballots for which it is claimed they shonld be rejected
are mere printer's dashes, and are not such distinguishing marks as were contemplated
by the statute.

The court sustained the demurrer and dismissed the petition, and the petitioners ap-
pealed to this court. The provisions of the election law, code 1880, bearing directly
upon the questions involved in this case, are these :

SEC. 137. A.11 ballots shall be written or printed in black ink, with a space not less
than one-fifth of an inch between each name, on plain white printing newspaper, not
more than two and one-half, nor less than two and one-fourth, inches wide, without
any device or mark by which one ticket may be known or distinguished from another,,
except the words at the head of the ticket; but this shall not prohibit the erasure.,
correction, or insertion of any name by pencil mark or ink upon the face of the bal-
lot; and a ticket different from that herein prescribed shall not be received or
counted.

SEC. 138. When the results shall have been ascertained by the inspectors, they, or
one of them, or some fit person designated by them, shall by twelve o'clock noon
of the second day after the election, deliver to the commissioners of election, at the
court-house of the county, a statement of the whole number of votes given for each
person and for what office, and the said commissioners of election shall canvass the
returns so made to them, and shall ascertain and disclose the results, and shall, within
ten days after the day of said election, deliver a certificate of his election to the per-
son having the greatest number of votes for any office, &c.

SEC. 139. The statement of the result of the election at their precincts shall be cer-
tified and signed by the inspectors and clerks, and the poll-book, tally-list, list of
voters, ballot-boxes, and ballots shall be delivered as above required to the commis-
sioners of election.

SEC. 140. The commissioners of election shall, within ten days after the election f
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, for any office at
such election, &c.

The case was submitted by counsel without brief or oral argument.

Campbell, J., delivered the opinion of the court :

This case presents for adjudication three questions, namely :

1. Whether the commissioners of election have the right to reject illegal ballot*
cast and counted by the inspectors of election and returned to them with the state-
ment of the result at the precincts.

2. Whether the ballots which the commissioners of election for Tunica County re-
fused to reject should have been rejected by them as being illegal, for having on
them a device or mark by which one may be known or distinguished from another.

3. Whether the action of the commissioners was final, or whether they may be re-
quired by mandamus to meet and act in the matter again, as the court may order.

We think it clear that the commissioners of election have the right, which they
should exercise, to reject ballots returned to them by the inspectors of the election as-
having been cast at any of the precincts of their county which show themselves on
inspection to be illegal. The law devolves on the commissioners of election the duty
to prepare for the election, by revising the register of electors, and the poll-books of
the several precincts, so that they may show who are qualified electors, and by appoint-
ing inspectors and an officer to keep the peace at each voting place and by distribut-
ing ballot-boxes and poll-books. The inspectors are to judge of the qualification of
electors so as to receive or reject ballots offered by them, and when the polls are closed
the ballots are to be counted, and a statement of the whole number of votes given for
each person and for what office is to be made, and this statement, certified and signed
by inspectors and clerks, and the poll-book, tally list, list of voters, ballot-boxes, and
ballots are to be promptly delivered to the commissioners of election, at the court-house-
of the county, to the end that they may canvass the returns so made to them, and see-
that the result of the election at each precinct, as certified to them by the inspector*
and clerks, is correct, according to the returns. They are to canvass the returns, that
is, they are to scrutinize the acts of those engaged in holding the election at the diii'er-
ent places of voting, as shown by the returns made to them in pursuance of law, and
determine from such returns who received the greatest number of legal votes, and
who is entitled to receive their certificate of election in cases in which they give such
certificate, and what return they shall make to the secretary of state.

It is true that commissioners of election are not judicial officers, in the sense of try-
ing causes, hearing evidence, and pronouncing final judgment between parties seeking
office, but they are charged with the duty of canvassing returns, which includes the
list of voters and list made in counting, a'nd the ballots, and they must examine such

LYNCH VS. CHALMERS. 345

returns and declare the legal result and certify it. If they find an error in computa-
tion they must correct it. If they ascertain from the lists of voters that persons not
registered, and therefore not legal voters, have cast ballots, they cannot correct that,,
because of inability to ascertain which ballots are legal and which not ; but if they
find in the ballot-boxes ballots declared by law to be illegal, and such as shall not be
counted, it is their plain duty to rej*ct them ; and if in canvassing the returns they
ascertain that the inspectors, in disregard of law, have counted ballots it says shall
not be counted, that error should be corrected by the canvassers as certainly as an
error of arithmetic should be. The law makes the inspectors judges of -the qualifica-
tions of electors, from necessity, because they are to receive the ballots, and, when
received and deposited in the box, it is not supposed by the law to be possible to-
identify them, but the ballots show for themselves whether or not they conform to-
la \v, and there is neither difficulty nor uncertainty in rejecting ballots as being illegal,,
because of what is shown by them upon inspection. We think the effect of section
137 of the code of 1880 is to condeum as illegal, and not be received or counted, every
ballot which has on its back or face any device or mark other than names of persons,,
by which one ballot may be distinguished from another.

This statute does not condemn devices or marks on the outside of a ballot merely,,
but clearly embraces the face of the ballot as wejl. That is apparent from the excep-
tion contained in it, and a device or mark on the face of the ballot is as much
within what we suppose to have been the object of this provision as one on the out-
side or back of it. It is apparent from the provision that its object is not only to pre-
serve secrecy as to what ballot an elector casts, which is the leading idea of statutes
in some other States, which prohibit any device or mark on a ballot folded which be-
trays the secret of the voter ; its object is to*secure absolute uniformity as to the ap-
pearance of ballots, in order that intelligence may guide the electors in their selec-
tion, and not a mere device or mark by which ignorance may be captivated. The
legislature was trying to prevent multitudes from "being voted," and being guided,
by a mere device or mark by which they should distinguish the ballots they were
to use in the process without a knowledge of the names of persons for whom their
ballots were being cast. Elections are a contrivance of government which prescribes
who are electors and how they may express their will, and it is a legitimate exercise
of power to prescribe the description of ballots which shall be used. Section 137 of
the code of 1880 does this, and requires all ballets to be written or printed with black
ink, with a minimum space between names, on plain white news printing paper of a
certain width, and without any device or mark by which' one ticket may be known
or distinguished from another, &c. ; and it declares that a ticket different from that
prescribed shall not be received or counted. Considerations of policy dictated the-
description of ballots prescribed, and it was deemed of such importance to secure an
observance of the requirement that it is declared that ballots not conforming to the
description prescribed shall not be received or counted.

It would have been competent to impose a penalty on the circulation or use of such
ballots, but the means by which their use is sought to be prevented is the rejection of
the ballot when offered or from the count. It is not penal for an elector to use a bal-
lot differing from the legal pattern, but it shall not be counted, and thus he fails to*
express his will through such an instrumentality. If the device or mark is external,,
and observed by the inspectors, they should not receive the ballot. If it is received,,
and on being opened is discovered to be of the kind condemned as illegal, it is not to
be counted ; but if the inspectors count such ballots in disregard of law and their duty
the commissioners of election, assembled at the court-house, with time and opportu-
nity afforded to scrutinize and correct, as far as may be done by the data furnished by
the face of the returns, without a resort to evidence aliunde, should reject, as the in-
spectors should have done, ballots which the law says shall not be counted. The only
safe guide as to what ballots are illegal because of devices or marks is the statute. It
excludes any mark or device by which one ticket may be known or distinguishedfrom
another. A distinction between ballots by means of devices or marks instead of by
means of the names on them is what the statute aims to prevent, and we are not at
liberty to confine the broad language of the statute to any particular description of
devices or marks, for ingenuity would evade any such limit. The law should be en-
forced as written.

There is no room for distinction between what is directory and what is mandatory,
what is essential and what is not. The requirement that ballots shall be written or
printed with black ink, with a space not less than one-fifth of an inch between
names, seems to have been designed to guard against confusion and mistake as ta
names of the persons voted for for the different offices, while the requirement of plain
white news printing paper of a designated width within narrow limits, and the ex-
clusion of any device or mark by which one ticket may be known or distinguished
from another, must have been intended to secure uniformity in the appearance of
ballots, so that, ignorance and blind party devotion might not be led to the adoption of
ballots by the guidance of some mark and devices, as to which they were instructed

346 DIGEST OF ELECTION CASES.

l>y their leaders, and which, instead of intelligent comprehension of whom or what
they are casting their ballots for, should determine their selection of ballots to be
cast. It was well known that ballots are prepared beforehand under the direction of
political managers, and are distributed for use among electors; and it was further
known that captivating marks and devices on ballots, appealing to ignorance ami blind
party zeal, were a favorite resort as an electioneering device deemed legitimate and
freely practiced with much effect; and the purpose of section 137 was to stop this per-
nicious practice, and to make the prohibition effective by prohibiting any mark or
device by which one ticket can be distinguished from another, and by rejecting any
ballot in violation of its requirements. It was assumed that ballots would still be
prepared beforehand by party managers or persons interested in having them legal,
and that, as all would be alike, the advantage to one party over another should not
consist in tickets, but that ballots must be selected not by devices and marks, but be-
cause of the names to be voted for.

We do not think that the commissioners of election can be required to meet and re-
canvass the returns of the election. Having made their canvass and declared the
result, and transmitted a statement of it to the secretary of state, their connection
with the returns ended. Any error committed by them is not to be corrected by re-
quiring them to reassemble and correct it. The legality of their action may be the
subject of judicial investigation in cases in which provision is made for contesting the
election by an appeal to the courts of the State, but only in those cases.

The House of Representatives of the Congress of the United States is the judge of
the elections, returns, and qualifications of its own members, and the courts of the
State have nothing to do with this matter.

This case might properly have been disposed of without considering any of the
questions made by the record except, that last mentioned, but the attorney-general
informs us from the bar that doubts exist as to the proper interpretation of the elec-
tion law of 1880, and that criminal prosecutions have been instituted against the com-
missioners of election of some of the counties for supposed violations of the law in
reference to their duties, and we have complied with his request in declaring our
view of the several questions presented by the record.

Judgment affirmed. To be reported.

Chalmers, C. J., took no part in the decision of this case.

I. D. Oglesby, district attorney, vs. J. J. Sigman et al.

I concur entirely in the opinion of the court as drawn up bv Judge Campbell. The
duty to examine and reject illegal ballots rests on every officer or court required or
authorized by law to count them. The statute prohibits the use of any mark or de-
vice on a ballot by which one " ticket may be known or distinguished from another."
That the mark or device adopted is a mere printer's mark, commonly used for orna-
mentation, makes no difference. The statute prohibits any distinguishing mark
whatever, and no court has a right to do away with the effect of the statute by hold-
ing that marks which are mere printer's ornaments may be used. It is wholly unim-
portant whether the marking on the ticket was the result of ignorance or a design to
evade the statute. The inspectors and commissioners have no power to inquire into
motives ; nor has the statute made motives important. It condemns as illegal every
ballot or ticket which is so marked " that it may be known or distinguished from an-
other." The ticket used in this case and made an exhibit to the petition is thua
marked, and should have been rejected. We have nothing to do with the policy or
impolicy of the statute. The language is plain and does not admit of construction ;
.and it is the duty of the courts and other officers to obey and enforce it in the sense
the words clearly indicate.

GEORGE.

We have set out the decision of the supreme court in full, and, before
discussing it, we might as well say here, that so far as the views of the
minority or the decisions of the Committee on Elections in former Con-
gresses on this point is concerned (which have been referred to by the
contestee), we fully concur in the views there expressed, and adhere to
them, with the exception of that part of the report in Yeates vs. Martin,
in the Forty-sixth Congress, referring to marked ballots. We dissent
from the view expressed by the majority of the committee in that case,
as did also the minority of the Committee on Elections at the time it
was rendered.

It is seriously contended by the contestee that the decision of the su-
preme court of Mississippi construing the sections of the election laws
of that State ought to be followed by Congress, and that it is against
the settled doctrine of both Congress and the Federal judiciary to dis-

LYNCH VS. CHALMERS. 347

regard the decisions of State tribunals iu construing their own local
l;i \vs. This is too broadly asserted, and cannot be maintained. It is
true that whei'e a decision or a line of decisions has been made by the
judiciary of the States, and those decisions have become a " rule of prop-
erty," the Federal j udiciary will follow them. Not to do so would con-
tinually place titles to property in jeopardy, and disturb all business
transactions. The rule as to all other questions is well stated in Town-
ship of Pine Grove vs. Talcott (19 Wall., 666-'C7), as follows :'

It is insisted that the invalidity of the statute has been determined by two judg-
ments of the supreme court of Michigan, and that we are bound to follow these adju-
dications. With all respect for the eminent tribunal by which the judgments were
pronounced, we must be permitted to say that they are not satisfactory to our minds.
* * * The question before us belongs to the domain of general jurisprudence. In
this class of cases this court is not bound by the judgment of the courts of States
where the cases arise ; it must hear and determine for itself.

There is still another reason why Congress should not be bound by
the decisions of State tribunals with regard to election laws, unless such
decisions are founded upon sound principles, and comport with reason
and justice, which does not apply to the Federal judiciary, and it is this:
Every State election law is by the Constitution made a Federal law
where Congress has failed to enact laws on that subject, and is adopted
by Congress for the purpose of the election of its own members. To say
that Congress shall be absolutely bound by State adjudications on the
subject of the election of its own members is subversive of the constitu-
tional provision that each House shall be the judge of the election, qual-
ifications, and returns of its own members, and is likewise inimical to the
soundest principles of national unity. We cannot safely say that it is
simply the duty of this House to register the decrees of State officials
relative to the election of its own members.

The foundation of this contention is that if the Congress of the United
States fails to enact election laws, and makes use of State laws for its
purposes, it adopts not only the laws thus enacted, but the judicial con-
struction of them by the State courts as well.

We do not agree that this is the rule except as it may apply to a
"positive statute of the State, and the construction thereof, adopted by
the local tribunals, and to rights and titles to things having a permanent
locality, such as the rights and titles to real estate, and other matters
immovable and intra-territorial in their nature and character." (Swift
rx. Tyson, 16 Peters, 1-18.) As to matters not local in their nature, the
Supreme Court of the United States has uniformly held that the de-
cisions of the State courts were not binding upon it.

Election laws are, or may become, vital to the existence and stability
of the House of Representatives, and to hold it must shut itself up in
the narrow limits of investigating solely the question as to whether an
election has been conducted according to State laws as interpreted by
its own judiciary would be to yield at least a part of that prerogative
conferred by the Constitution exclusively on the House itself.

It may be stated generally that the House of Representatives will, as
a general rule, follow the interpretation given to a State law regulating
a Congressional election by the supreme court of a State, where decis-
ions have been continued and uniform in such a way aud for such time
as to become the fixed and settled law of a State. The processes of de-
termining the election aud all questions relating to the honesty and
bonafidet of ascertaining who received the highest number of legal votes
must of necessity forever reside exclusively in the House.

Where decisions have been made for a sufficient length of time by

348 DIGEST OF ELECTION CASES.

State tribunals construing election laws so that it may be presumed that
the people of the State knew what such interpretations were would fur-
nish another good reason why Congress should adopt them in Con-
gressional election cases. But this reason would be of little weight
when the election had been held in good faith before such judicial con-
struction had been made, and where there was a conflict of opinion
respecting the true interpretation of a statute for the first time on
trial.

There is still another cogent reason why this House may, and per-
haps should, disregard the decisions of State courts when such decisions
are made in cases where there is confessedly no jurisdiction in the court
to pass upon the question which it assumes to pass upon, or where the
court assumes to pass upon questions not properly involved in the case
before it.

We cannot express in better language the effect which obiter dictum
in judicial opinions should have on future decisions than that employed
by Mr. Justice Curtis in Carroll vs. Carroll, 16 How., 279-87. After con-
sidering the maxim at common law of stare decisis, the learned judge
proceeds to discuss the 34th section of the judiciary act in connection
with the maxim, and then says:

And therefore this court, and other courts organized under the common law, has.
never felt itself bound by any part of an opinion in any case which was not needful
to the ascertainment of the right or title in question between the parties.

Citing some cases he continues:

And Mr. Chief Justice Marshall said, " It is a maxim not to be disregarded that gen-
eral expressions in every opinion are to be taken in connection with the case in which
those expressions are used." If they go beyond the case, they may be respected, but
ought not to control the judgment in a subsequent suit when the very point is pre-
sented. The reason of this maxim is obvious. The question actually before the court
is investigated with care and considered in its full extent; other principles which may
serve to illustrate it are considered in their relations to the case decided, but their
possible bearing on all other cases is seldom completely investigated. The cases of
Ex-parte Christy, 3 How., 29<i, and Jenness et al. vs. Peck, 7 How., 612, are in illustra-
tion of the rule that any opinion given here or elsewhere cannot be relied on as bind-
ing authority unless the case called for its expression. Its weight of reason must
depend on what it contains.

There is abundance of authority running through all the reports of
the judicial opinions of the various States, and also through the reports
of the Supreme Court opinions of the United States, that they will not
be bound by the obiter of their own decisions, much less that of other
courts. And where there is a conflict in the decisions of a State supreme
court, other State courts and the Supreme Court of the United States
will adopt, not the later, but that line of decisions which best speaks
the reason and common sense of the proposition elucidated, except in
those cases purely local, as pointed out in Swift vs. Tyson, supra.

Another suggestion in argument needs greater amplification than we
can give it now, which is: that by adopting the machinery of the States
to carry on Congressional elections this House stands in the nature of
an appellate court to interpret these election laws so far as they relate
to Congressional elections; that it ought not in this view to be bound
by the decisions of the State courts at all, unless the reasons given by
them are convincing to the judicial mind of the House while acting in
the capacity of a court.

It need, however, hardly be added that a line of carefully considered
cases in the States, in which such courts have undoubted jurisdiction^
so far as they would apply in principle, would go a long way towards
settling a disputed point of construction in any State election law. In

LYNCH VS. CHALMERS. 349

fact it may be said that it would probably be the duty of Congress to
follow the settled doctrine thus established.

It now becomes necessary to review the opinion of the supreme court
of .Mississippi in Oglesby vs. Sigiinau. As will be seen by an examina-
tion of the case it was a mandamus proceeding, under a section of the
Mississippi Code, to compel the commissioners of election in Tunica
County to reassemble and recount the votes cast in that county on the
2d day of November, 1880, for member of Congress in the sixth Con-
gressional district of Mississippi. The allegations, substantially, are
that the election commissioners counted 506 ballots for the contestant
in this case, Mr. Lynch, which had upon them marks and devices, and
which were illegal under the provisions of sections 137, 138, 139, and
140 of the Mississippi Code, and ought to have been rejected, instead of
being counted as they were. A fac simile of the ballots challenged is
.set out on the record, and on the ticket is fcjuncl certain printers' dashes
which are similar to those challenged in the pending contest, and which
are the distinguishing marks complained of. The Oglesby-Sigiman case
"was submitted by counsel without brief or oral argument," as we are
informed by the contestee's brief. Thejudge who delivered the prin-
cipal opinion in this case closes the opinion of the court with this re-
mark :

The House of Representatives of the Congress of the United States is the judge of
the flections, returns, and qualifications of its own members, and the courts of the
State have nothing to do with this matter.

The case might properly have been disposed of without considering any of the
questions made by the record except that last mentioned, but the attorney-general
informed us from the bar that doubts exist as to the proper interpretation of the elec-
tion law of 1880, and that criminal prosecutions have been instituted against the
commissioners of election of some of the^ounties for supposed violations of the law
in reference to their duties, and we have complied with his request in declaring our
view of the several qiiestions presented by the record.

The point, as remarked by the judge, on which the case might have
been disposed of, was as to whether the official life of the election com-
missioners w&sfunctus officio, and they were therefore incapable of being
brought together to perform official duties; which being determined in
the affirmative, the court had nothing to do but to dismiss the petition,
as it did when it refused to entertain a petition on behalf of Mr. Lynch,
made on the 9th day of December, 1880, to prevent the governor of
the State from issuing to the contestee a certificate of election as mem-
ber of Congress from the sixth Congressional district of Mississippi,
on the ground that it had no jurisdiction of the subject-matter of the
action.

Had the Mississippi supreme court stopped here the question of how
far the decision of State courts in construeing their own election laws
ought to bind this House would be free from embarrassment ; but the
court, after remarking upon its want of jurisdiction on the first two
points, stated in the beginning of its opinion, and having disposed of
the third on the ground that the official duties of the election officers
were at an end and that they could not be reassembled, proceeded to
construe the law relative to distinguishing marks, and decide what were
such by the terms of the Mississippi Code so far as it could do so, the
same being confessedly not before it.

It is sufficient to say that if the argument sustaining the conclusions
reached by the Mississippi court met our views of the true construction
of the law, a further analysis of the opinion would be unnecessary; but,
as we cannot agree with the argument or the conclusion of the court,
it becomes necessary to give some of the reasons why we do not concur,
and whv we do not feel bound l>v it.

350 DIGEST OF ELECTION CASES.

First. The court declared in terms it had no jurisdiction of the sub-
ject-inatter embraced in the first and second grounds stated in the
opinion. The third ground does not involve a construction of the law r
and of course cannot be considered in determining the question raised
in the pending contest.

It is with great hesitation and reluctance that we feel compelled to
disagree with the eminent gentleman who concurred in the opinion, and
we do so in no spirit of unjust criticism, for we would much prefer to
follow rather than dissent from it. Had the opinion been rendered
before the election of 1880, or become one of settled law of Mississippi,
we do not say but that it would have such weight with us that, though
we might disagree with it in logic, we might feel compelled to follow it.
We think that the decision is against the current of authority and con-
trary to the well-settled doctrine heretofore discussed; that it can be
regarded as obiter dictum merely, and as the opinion of eminent gentle-
men learned in the law, but not as a judicial construction of the code.
It may happen, should the supreme court of Mississippi adhere in the
future" to the reasons advanced in this case, in cases where it has juris-
diction, that this House will adopt them ; but until the happening of
this event we cannot say that the reasons given in the Oglesby-Sigiman
case are controlling.

The general doctrine in constructing election statutes is, that they are
to be construed liberally as to the elector and strictly as to the officers
who have duties to perform under them. A statute directing certain
things to be done by election officers ought to be followed by them with
a high degree of strictness, but duties to be performed by the electors,
as declared by statute, are directions merely, which, if not observed, it
is true, may in some instances defeaft his ballot; but when there is an
honest intention to obey the law, and the voter is not put in fault by
any laches or negligence which he, by the use of reasonable diligence,
might or could avoid, or where there is no palpable intention of violat-
ing the law apparent, in order to maintain the inestimable right of vot-
ing, courts have generally adopted the most liberal construction.

In an almost unbroken line of precedents, from the foundation of the
Government, in all the States this rule has been declared. (McCrary
on Elections, sec. 403; Kirkfl*. Khoades, 46 Cal., 398; Prince vs. Skillen r
71 Me., 493; People vs. Kilduff, 15 111., 492; Millholland vs. Bryant, 39
Ind., 653; The State ex. rel. vs. Adams, 65 Ind., 393; Pradut vs. Karu-
sey (5 Morris), 47 Miss., 24, and many other cases not necessary to cite.

In the present case we find, as a matter of fact, that there was no in-
tentional violation of the law, and we further find, as a matter of fact,
that every precaution was taken which a reasonably prudent man would
be likely to take under similar circumstances; that the contestant in
person applied to those whom he might reasonably believe to be well
versed in the art of printing, and, with the law in their hands, discussed
the question of distinguishing marks, and was assured that tickets
would be prepared and printed strictly within the letter of the statute.
After the tickets were printed the contestant was assured that they
were lawful, and might be relied upon as not being obnoxious to the
law. It does not appear that the printer's dashes which appear on the
ticket were observed by the contestant or his friends, at least until the
morning of the election, after they were all distributed, and it was too
late to furnish other tickets ; and when the dashes were discovered it
was stoutly contended that they were not distinguishing marks within
the meaning of the law. It also appears that there was no intention on
the part of any one, either those connected with the printing of them,

LYNCH VS. CHALMERS. 351

or those for whose use they were designed, to print the dashes in the
tickets for the purpose of distinguishing them from any other ballots of
any other party.

It is also proved that tickets precisely similar to those that are ques-
tioned in this contest, in so far as the printer's dashes are concerned,
were printed and furnished to the opposing party in at least one of the
counties in the sixth Congressional district of Mississippi, and were un-
questionably voted without a suspicion that they were obnoxious to the
law. To farther illustrate the entire good faith with which these tick-
ets were printed and used, and how they would be regarded by practi-
cal printers, the testimony of Charles Winkley, one of contestee's wit-
nesses, becomes very important ; it is as follows :

Cross-interrogatory 2. Are yon a practical printer*, and have yon critically exam-
ined the " marks," so called, on the tickets of Lyiwh, rejected from Warren County f
If so, were not these only the usual printer's dashes to be found generally in news-
paper articles aud upon tickets generally?

Answer. I am a practical printer ; I have not critically examined the tickets, but
the dashes used are such as any printer of taste would either put in or leave out, ac-
cording as he wanted to lengthen or shorten tjje ticket to suit the paper, or other-
wise.

Cross-interrogatory 3. If you were called upon generally to print tickets, without
any special instructions, is it likely that you would have printed the tickets similar
to those complained of and rejected from Warren Couuty ?

Answer. I might or might not, just as it might have seemed to strike me at the
time.

Aud further deponent saith not. (Rec., p. 261.)

It further appears that printers' dashes, such as were used on the
tickets in this case, are universally known among printers as punctua-
tion marks ; in fact most of the characters which appear upon these
tickets are set down in Webster's Unabridged- Dictiouary under the
head. " marks of punctuation." It is known to the most casual reader
of print that printers' dashes frequently occur in books, newspapers,
and publications of all kinds, and to the common understanding to
argue that they are of themselves " marks or devices' 7 would not meet
approval.

"NVe have already found that they were not used or placed upon the
tickets for the purpose of distinguishing them from any other ballots,
nor as a device for that purpose, and not being of themselves devices
we cannot say that they are inimical to the statute. It is true that
printers' dashes way be intended and used as a mark or device, and so
may different kinds of type, or punctuation marks of different kinds.
Arrangement of names and heading of tickets may also be made
"marks and devices," and it seems to us that the reasonable interpre-
tation of the law would be, first, in the use of these appliances, which
are ordinarily used in printing, were they so arranged as that they be-
come "marks and devices"! aud were they so used and arranged for
that purpose? and, secondly, was the unusual manner of their being^
used such as might or ought to put a reasonably prudent inaii on his
guard '

This view of the law would be the extreme limit to which we think
we would be justified in going under well-established principles of con-
struction in like cases. No case has been called to our notice which
goes this far.

What we have here remarked does not, of course, apply to the mark&
or devices ordinarily used on tickets, such as spread-eagles, portraits,
and the like ; those would be considered "marks and devices" of them-
selves, and not necessary in the ordinary mechanical art of printing.
The use of the latter would be considered a violation of the statute in

352 DIGEST OF ELECTION CASES.

iiny aspect of the case, while the use of the former seems to us, in any
view of the law, ought to be restricted to an intentional or manifest
misuse.

The evident object and intention of prohibitory legislation against
*' marks and devices" is to secure the freedom and purity of elections,
to preserve the secrecy of the ballot, and place the voter beyond the
reach of improper restraint or influence in casting his ballot, and we
cannot better express ourselves upon this subject than by quoting the
supreme court of California in Kirk vs. Ehoades, supra, which is as fol-
lows:

The object of these provisions is to secure the freedom and purity of elections, and
to place the elector above and beyond the reach of improper influences or restraint in
casting his ballot. When all the ballots cast are similar in appearance, and without
any distinguishing mark or characteristic, the most dependent elector in the county
may vote with perfect freedom, as his employer or other person upon whom he is de-
pendent has no means of ascertaining for whom he voted.

It will be observed that there are two classes of things required by section 1191.
Over one class the elector can have no control ; over the other he has perfect control.

For instance, whether the paper on which his ballot was printed was furuishod
by the secretary of state or not, or upon paper in every respect precisely like such
paper, or whether it is four inches in width and twelve inches in length, or falls
short of this measurement by an eighth, or a sixth, or a fourth of an inch, or
whether it is printed in long primer capitals or not, or whether it is single or
double leaded these are matters over which the great majority of electors have no
control, and about some of which they are entirely ignorant. The ballots are always
furnished on the day of election by committees appointed for the purpose by the
respective political parties, or by independent candidates or their friends. The elector
in but few instances ever sees these tickets until he approaches the polls to cast his
ballot, and it would be absurd in the extreme to require him to have a rule by which
he could measure and ascertain whether his ticket exceeded or fell short of twelve
inches in length by a sixth of an inch, or only by an eighth of an inch, or whether the
color of his ticket was of the exact shade of the paper furnished by the secretary of
state.

Again, not one elector in five hundred knows the difference between long primer
capitals or any other capitals, or whether his ticket is single or double leaded. It is
impossible that he should know or be able to determine these facts. This very case

E resents a striking instance of the absurdity of requiring the elector to judge of these
lets.

The respondent, Rhoades, by his counsel, objected to counting twenty-two ballots
for Kirk, upon the grounds that they were not printed in long primer capitals, and
that the lines "were double-leaded.

Such was this case. Section 1208 expressly required a ballot found in the box not
conforming to the requirements of section 1191 to be rejected. This section did not,
as the Mississippi law does, omit tostate that this rejection should be of the prohibited
ballots when and after found in the box, and yet the court held expressly that as to
all matters regarding character of the type, the paper, the width and length of ticket,
they were matters that ordinarily were not under the control of the voter, and that
the statute should be held directory as to such matters, and that the claim of respondent
that the 22 votes for Kirk should be rejected on account of not being printed in long
primer capitals, and that the lines were double-leaded, was by the court overruled. In
the conclusion of its opinion the court said :

"To defeat the will of the people in any election it would only be necessary to
furnish the electors, or a portion of them, with tickets in which the printed lines
were one-forty-fourth part of an inch further apart than required by the code a dif-
ference which cannot be detected except by an expert. There are, however, other
requirements of the code within the power of the elector to control, and these, if
willfully disregarded, should cause his ballot to be rejected. He can see, for instance,
that his ballot is free from every mark, character, device, or thing that would enable
any one to distinguish it by the back, and if, in willful disregard of law, he places a
name, number, or other mark on it, he cannot complain if his ballot is rejected and he
loses his vote."

The above language quoted from this case is the language of the court below. The
supreme court, after quoting this language in the opinion, closes its opinion in these
words :

"We agree with the county judge in his conclusion that the twenty-two ballots
spoken of were properly counted for Kirk, and that the motion to strike them from
the count was properly denied. Jtidgment affirmed."

LYNCH VS. CHALMERS. 353

We do not feel called upon to give our reasons why we dissent from
much that is said in the opinion in the Mississippi case. It may not
be out of place to remark that some of the reasons on which the opinion
is based appear to be directly opposed to the current of authority upon
which like legislation is maintained. It is remarked that " its object is
to secure absolute uniformity as to the appearance of ballots, in order
that intelligence may guide the voter in his selection, and not a mere
device or mark by which ignorance may be captivated."

Our understanding has been that these laws were designed to pro-
tect the weak and ignorant against undue restraint by the strong and
powerful, to make the ballot secret and free, and place the dependent
on the same plane as the most favored; and that laws of this character
ought not to be so construed as to become a snare to the very persons
for whose protection they were designed. .The learned and powerful
need no such protection. The laws are designed for the protection of
the weak and unlearned. It seems to us that the construction given to
this law inevitably establishes a basis of intelligence ot being able to
read, at least, for if you strip all ballots of every punctuation mark, and
all dissimilarity in print, and make thembf the same paper, of the same
size, and similarly spaced, the man who is unable to read will be en-
tirely at the mercy of his more favored neighbor, and thus you will de-
feat the very thing which the law was intended to prevent.

It is urged that the construction given to this law defeats one of the
provisions of the constitution of Mississippi, which extends the right
of suffrage to all without reference to illiteracy. This point not having
been referred to by the court in Mississippi, we infer that it escaped their
attention, and we do not care to go into the question. It is quite evident
to us that these laws must pass under judicial notice frequently in the
future, and we are quite content not to anticipate the results which may
be hereafter reached.

We have examined the question of "printers' dashes," in the first in-
stance, because if we arrived at the same conclusion respecting their
illegality as the coutestee did, it was manifest to us from the beginning
that we would not have to go farther, as this would control the case.
Having arrived at a conclusion adverse to contestee, it becomes mate-
rial to next examine exceptions filed by him to certain of the testimony
printed in the record. His exceptions are as follows :

JOHN R. LYNCH, CONTESTANT, )

l8 . >

JAMES R. CHALMERS, CONTESTEE. )

The contestee comes in proper person and excepts to so much of Exhibit D filed aa
additional testimony in this case, and appearing from page 225 to page 243, inclusive,
of the record :

1. Because, there is no such officer as chief supervisor of elections for either the
northern or southern district of Mississippi known to the laws of the United States
and authorized to make such reports.

2. Because there is no law authorizing the supervisors of elections to make any re-
ports of the election in any district outside of a city of twenty thousand inhabitants.

3. Because these pretended reports are not signed by both of the pretended super-
visors at each precinct.

4. Because there is no evidence that the parties signing these reports as supervisors
were, in fact, appointed United States supervisors of elections.

5. Because there is no evidence that the parties whose names appear to be signed to
said reports actually signed the same.

6. Because the pretended reports were not presented as an exhibit to contestant's
deposition when taken, and were gathered up by contestant and filed here long after
the time for taking testimony in this case.

IT. Mis. 35 23'

354 DIGEST OF ELECTION CASES.

7. Because the pretended certificate of Orlando Davis appears on its face to have
been signed September 13, 1881, long after the time for taking testimony in this case.

8. Because said papers appear on their face to be tiled with the Clerk of the House
of Representatives on the 21st of December, 1881, long after the time for taking testi-
mony in this case, and do not appear to have been transmitted by any authorized
officer of law.

JAS. R. CHALMERS,

Contvstee.

Before passing upon the question we call attention to the sections of
the Ee vised Statutes bearing on the question of supervisors' returns.
Sections 2011 and 2012 authorize the judge of the circuit court, on the
application in writing of ten good citizens, to appoint in each election
precinct, at which a Eepresentative in Congress is to be voted for, two
citizens of different political parties as supervisors of elections. Sec-
tion 2025 requires the circuit court to designate a circuit court com-
missioner to act as chief supervisor for the district. Section 2017 speci-
fies the duties to be performed by them, among which are to personally
scrutinize the manner in which the voting is done, and in which the
poll-books, tally, or check-books are kept. Section 2018 requires that,
to the end that each candidate for Eepresentative in Congress shall
obtain the benefit of every vote cast for him, the supervisors shall
scrutinize personally the count, and canvass each ballot, and make and
forward to the chief supervisor (Sec. 2025) certificates and returns of
all such ballots as such officer may require.

Section 2026 requires the chief supervisor to "receive, preserve, and file all oaths
of office of supervisors of election, and of all special deputy marshals, appointed
under the provisions of this title, and of all certificates, returns, reports, and records of
every kind and nature contemplated or made requisite by the provisions hereof, save
where otherwise herein specially directed."

The contestant contends that these sections apply to country super-
visors as well as to supervisors appointed in cities of 20,000 or more in-
habitants; while thecontestee claims that section 2011 is made up partly
of the acts of 1871 and 1872 ; that sections 2012 to 2027, inclusive, are
taken from the act of 1871, and have no reference to supervisors ap-
pointed in counties or parishes on the petition of ten citizens, and that
2029 is also taken from acts of 1872. Eeference is made by the contestee
to the Congressional Globe, page 4455, second session Forty second
Congress, to the debate had when this provision was pending in the
House.

It is needless to enter into an extended history of this legislation.
The disputed question between parties is this : The contestant claims
that the statute requires the supervisors of elections in country pre-
cincts to make and keep an official record of the result of the votes
polled, of the manner of conducting the election, the truth or fairness of
the canvass and its conduct, and the honesty of the count, if the chief
supervisor shall so direct, and return the same to the chief supervisor,
who shall keep and preserve them, and in accordance with law file a
certified copy with the Clerk of the House of Eepresentatives ; that
these returns, or duly certified copies of them, are competent evidence
in contested election cases. We copy the following strong statement
made by contestant's counsel in support of this contention :

That where the law either statutory or other makes a document a public record
or file, and requires it to be preserved as such, and puts the custody thereof in the
hands of an officer, there as a matter of common law, and without statutes authoriz-
ing the custodian to certify to copies of such record, the common law will admit the
copy certified by the custodian as evidence of what is provable in any case by the
original, is a matter of elementary law. The opposing brief seems to controvert this,
as, for example, at the bottom of page 29, where it cites section 104 of McCrary's Elee.

LYNCH VS. CHALMERS.

355

tion Laws. That citation wholly fails to meet or negative the last preceding propo-
sition. That section 104 is a statement simply to this effect :

"That statute certifying officers can only make their certificates evidence of the
facts which the statute requires them to certify ; and when they undertake to go be-
yond this and certify other facts they are unofficial, and no more evidence than the
statement of an unofficial person."

We admit there is much force in this argument. But the conclusions
we have reached do not make it necessary for us to decide this question,
and we do not. We present the following analysis of the various pre-
cincts upon the view that it is unnecessary to look to the supervisors'
report for any purpose,

WARBEN COUNTY.

We correct the returns made in this county as follows : The vote as
returned to the secretary of state was: Lynch, 57 5 Chalmers, 1,014;
we add the rejected vote," Lynch, 2,029 ; Chalmers, 20.

The vote returned by the inspectors to the commissioners of election,
and by the commissioners of election to tfie secretary of state, appears
in the subjoined tabulated statement.

Counties .

Inspectors' returns to com-'
missioners.

Commissioners' returns to
secretary of state.

Lynch.

Chalmers.

Lynch.

Chalmers.

1,214
1,713
288
1,221
1,122
383
83
175
506
2,086
1,298
814

1,419
403
1,061
576
174
1,043
153
484
239
1,034
1,963
1,691

898
979
288
352
333
136
83
175
506
57
772
814

1,387
301
1,061
225
59
951
153
484
239
1,014
1,607
1,691

Total

10, 903
10, 240

10, 240

5,393

9,172
5,393

663

3,779

The tabulated statement below shows the number of votes rejected
by the commissioners of election from the counties named :

Votes rejected by com-
missioners.

Lynch.

Chalmers.

316

734

102

869

351

789

115

247

526

356

3,481

1 048

356 DIGEST OF ELECTION CASES.

ADAMS COUNTY.

The returns from Dead Man's Bend precinct were rejected by the
commissioners of election on the ground that there was no list of voters
set up with the returns by the precinct officers. At page 75 of the
Record, William J. Henderson, one of the commissioners of election,
testifies that the vote of that precinct was: For Lynch, 85; for Chal-
mers, 15. (See also Record, page 88.) We think the vote of this pre-
cinct should be counted. It was rejected for unsubstantial reasons ; no
fraud is charged, and it would, to our mind, be the grossest injustice to
deprive the voters of their right to participate in a choice for their Rep-
resentative on this ground.

Palestine Precinct.

As to this precinct, Mr. Lynch proves by William J. Henderson, at
Uecord, page 75, of his testimony, that the box was rejected because
there were 35 more ballots found therein than there were names on the
list of voters kept by the clerks. Mr. Henderson says :

The Palestine returns were rejected because the box contained 35 more ballots than
were accounted for in the list of voters as kept by the clerks. * * * To the best
-of my recollection, the inspectors sent up their returns, stating that there were in the
box 17 votes for Chalmers and 270 votes for Lynch, the latter number including 35
votes which were found to be in excess of the iibt of voters as kept by the clerks.

Lennox Scott, another witness, who was a United States supervisor,
testifies, on Record, page 187, that to his own personal knowledge 231
votes were cast at this precinct for Mr. Lynch. An effort was made to
explain how the excess of 35 votes appeared. The evidence on this
subject is not very satisfactory, but we think, on the whole, that Mr.
Lynch should receive 231 votes and Mr. Chalmers 17 from this precinct.
(See also Record, page 191, testimony of H. C. Bailey.)

BOLIVAR COUNTY.

Under section 138 of the Mississippi code, the inspectors of elections
are required to send up to the commissioners the whole number of votes
cast at the poll, and the commissioners under section 140 of the code
are required to " 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."

This duty being enjoined by statute, their certificate is evidence of
the fact that the number of votes which they certify were given. That
return was put in evidence, from which it appears they returned Lynch
979, Chalmers 301. It further appears by a certificate signed by the
commissioners of election that they threw out Australia precinct, con-
taining 30 Democratic votes and 192 Republican votes, because the re-
turns were " not certified to by the inspectors or the clerks."

Bolivar Precinct.

It appears from the same certificate that in this precinct they rejected
45 Democratic votes and 311 Republican votes for the same reason.
Another informality is noted, which is that the " tally sheets" were kept
on four pieces of paper, and that they do not show what offices the per-
sons whose names appear on the tally sheets were voted for. This can
hardly be considered to be a good ground when the ballots were before
Jthem, and they could have looked and seen.

LYNCH VS. CHALMERS. 357

Holmes 7 Lake Precinct.

As to Holmes' Lake precinct it appears that the ballot-box was never
opened, and the ballots counted by the inspectors and clerks. The com-
missioners refused to open and count the votes, and perhaps were not
authorized to do so by law. The voters of this precinct are deprived of
the right to participate in the choice of their Representative, by the
conduct of their present officers.

Glencoe precinct was rejected because the vote was not entirely counted
on the night after the election, and the returns were signed by only two
of the election officers, not a majority. The commissioners certify that
these imperfect returns show that 27 Democratic votes and 233 Repub-
lican votes were rejected on account of this informality. In right and
justice these votes ought to be counted, but we do not do so on the
statement made by the commissioners.

ISSAQUENA COUNTY.

There are two statements in the record, which, taken together, enable
us with reasonable certainty to arrive at the vote cast in three of the
four rejected precincts of this county. The first is 1 the certificates of
election made by the commissioners of election to the secretary of state,
and found on page 17 of the Record.

Hay's Landing,

They say with regard to this poll that they find 75 votes reported by
the election officers; on four of the ballots all the names are scratched
off, and they reject the poll because there was no separate list of voters
kept. At page 89 of the Record, Richard Griggs, clerk of the chancery
court for Issaquena County, certifies, under the seal of said court, that
the paper appearing on that page of the Record is a true and correct
transcript of the election returns made by the election officers as ap-
pears of record in his office, by which it appears Chalmers received 34
votes and Mr. Chalmers 29 votes for member of Congress. The com-
missioners of election for that county certify to the secretary of state that
they rejected this precinct return, and the clerk of the court certifies that
that return is on file in his office, a copy of which he gives. The two
statements taken together are prima facie evidence of the vote received
at that poll. The highest number of votes appearing on the tally-list as
certified by the clerk agrees with the number the commissioners say
were returned from that poll. The commissioners are authorized by law
to certify as a fact the number of votes cast; and the clerk of the court
is authorized by law, as the keeper of public records, to give certified
transcripts thereof.

For the reasons given in reference to Hay's Lauding precinct, we also
count Ben Lomond and Duncansby precincts ; by reference to which
it will be seen that Lynch's vote was 332 and Chalmers's 20 in the former
(Record, pages 17 and 90), and 371 for Lynch, and for Chalmers 45, in
the latter.

JEFFERSON COUNTY.

The only precinct in dispute in this county is the Rodney precinct poll,
the vote of which is admitted to be 247 for Lynch and 92 for respondent-
This is shown also by the report of the commissioners, at page 19 of the-
Record. Having come to a conclusion adverse to contestee in reference
to marked ballots, we count this poll us returned.

358 DIGEST OF ELECTION CASES.

WASHINGTON COUNTY.

The evidence in the Record, at page 23, shows that the Stoneville pre-
cinct was rejected by the commissioners for want of a statement signed
by the inspectors of election. Page 206, John Jones testifies that at this
poll there were 315 cast for Mr. Lynch and 60 for Mr. Chalmers. He
says: "I saw the votes counted, and know that to be the fact and cor-
rect." This testimony is uncontradicted, and is sufficient to put the re-
turned member to proof to show why the vote should not be counted. It
was the unquestioned duty of the inspectors to make return of this vote
as it was cast. The election appears to have been conducted in a quiet
and peaceable manner, and no sufficient reason having been given by
the commissioners of elections why they did not return the vote, we think
it right and fair to count it as the testimony shows it was cast. As to
Lake Washington and Refuge precincts, there is no testimony in the
Record showing what the vote as cast was. If the supervisors' returns
are rejected, and the contestee's exceptions sustained, it leaves us with-
out means to ascertain the true vote at these precincts.

COAHOMA COUNTY.

In this county the commissioners in making the certificate to the sec-
retary of state omit to state what the vote was in the rejected precincts.
There were elections held in seven precincts in this county, six of which
were rejected by the commissioners, and one, Friar's Point, was counted.
There is in the Record, at page 98, a certificate made by R. N. Harris,
clerk at the circuit court, giving a transcript of the tally-lists signed by
the inspectors of four precincts : Clarksdale, which shows that Lynch
received 307 and Chambers 117 votes; in Sunflower, Lynch received
32 and Chambers received 77 ; Dublin, Lynch 70, Chambers 63 ; Mag-
nolia, Lynch 109, Chalmers 23. At the Delta precinct the inspectors
and clerks did not count the votes, and this box was, therefore, in the
same condition as the one at Holmes Lake. The Jonestown precinct is
omitted because the clerk fails to certify. The clerk's certificate is
probably evidence that these papers are on file in his office, and that
they are the returns sent up by the precinct election officers. As to
whether they are evidence as to the fact whether so many voters voted
for the persons named for the offices named is submitted to the House.

FRAUDULENT RETURNS.

At Kingston precinct, in Adams County, it is conclusively shown by
the testimony of Jerry Taylor, Henry B. Fowles, Abraham Teltus,
Smith Kinney, Harry Smith, jr., and William H. Lynch, that the vote
as cast was 350 and for Chalmers 59. The vote as returned by the pre-
cinct election officers was Lynch 160, Chalmers 249. It is shown that
there was abundant opportunity for tampering with this box at the
noon recess, when it was taken to the residence of one Dr. Farrar, and
the Republicans were excluded from the presence of the box, and the
aperture was not sealed. The Republican inspector who had the key
could not have stuffed the ballot-box in its absence. We think under
the evidence this vote should be corrected so as to show the true vote
as cast, as testified to by these witnesses who are uncontradicted. We
therefore add 190 votes to Mr. Lynch's aggregate and deduct that num-
ber from Mr. Chalmers.

LYNCH VS. CHALMERS. 359
The corrected vote of the parties will stand thus :

Lynch. Chalmers.

Returned vote 5, 393 9, 172

Add rejected votes :

Warren County 2, 029 20

Deadruan's Bend 85 15

Palestine 231 17

Australia 192 30

Bolivar 311 45

Hay's Landing 39 24

Beii Loinonde 332 26

Duncansby 371 45

Rodney 247 92

Stoueville .. 315 60

9, 545 9, 540

From which we deduct 190

And add that number to Lynch's vote to correct the returns in

Kingston precinct, Adams County 190

Which makes total 9,735 9,350

Majority for Lynch ^ 385

We have not added the vote of the rejected precincts in Coahoma
County, as shown by the clerk's certificate, nor have we corrected the
vote in Kobb's precinct, in Washington County, where it is charged the
ballot-box was tampered with, and about which there is a conflict of testi-
mony.

In three precincts in Adams County it is claimed the returns should be
thrown out because of mismanagement, misconduct, and abuse of power
on the part of the managers in contestee's interests, and peace officers
and challengers acting on behalf of and in coutestee's interests. And
at Washington precinct, in Adams County, they excluded the United
States supervisor of elections from the presence Of the box from the time
of adjournment in the evening to the time of commencing the counting
of the vote in the morning. In precincts of Court- House and Jefferson
Hotel it is claimed that the Republican voters were prevented from vot-
ing by a systematic course of vexatious questions and inexcusable de-
lays, whereby 300 or 400 voters were prevented from voting at all. The
evidence on this subject is conflicting, and doubt exists in the minds of
the committee whether it is sufficient to exclude these boxes from the
count, and we therefore decide to let them stand. As to Washington
precinct it may be gravely questioned whether it ought not to go out, but
as it can make no difference in the final result we decide to let it stand,

if the precincts in Coahoma County shall be counted the tabulated
statement would be as follows :

Lynch. Chalraer a

Returned vote 5,393 9,172

Add rejected votes :

Warren County 2,029 20

Deadman's Bend 85 15

Palestine 231 17

Australia : . . 192 30

Bolivar 311 92

Hay's Landing 39 24

Ben Loinonde 332 10

Duncansby 371 45

Rodney 247 92

Stoneville... 315 60

9, 545 9, 540

From which we. deduct 190

And add that number to Lynch's vote to correct the returns in

Kingston precinct, Adams County 190

Which makes t.<f:il .- 9,735 9,350

360 DIGEST OF ELECTION CASES.

Clarkeailale 307 117

Sunflower 32

Dublin 70 63-

Magnolia 109

Total 10,253 9,630

Majority for Lynch 623

If you add the votes as shown by the supervisor's returns the follow-
ing table will exhibit the vote :

Lynch. Chalmers,

Returned vote 5,392 9, 172

Add rejected votes :

Warren County 2,029 20

Deadman's Bend 85 51

Palestine 231 17

Australia 192 30

Bolivar 311 45

Hay's Landing 39 24

BeuLomonde 332 20

Duncansby 371 45

Rodney 247 92

Stoneville . . . 315 60

9, 545 9, 540

From which we deduct 190 1

And add that number to Lynch's vote to correct the returns in
Kingston precinct, Adams County 190

Which makes total 9,735 9,350

Clarkesdale : 307 117

Sunflower 32 77

Dublin 70 63

Magnolia 109 23

10, 253 9, 630

Glencoe 231

Dumbarton, or Duval 47 26

Jonestown 351 71

Refuge 99 67

Lake Washington.., 112 229

Total 11,093 10,050

Majority for Lynch 1,043

These tabulated statements are made for the information of the House.
The first tabulated statement shows the result which the undersigned
members of the committee all concur in, and upon which the report is
based.

Your committee therefore recommend the adoption of the following
resolutions :

Resolved, That James E. Chalmers was not elected, and is not entitled
to his seat in the Forty-seventh Congress from the sixth district of Mis-
sissippi.

Resolved, That John E. Lynch was elected, and is entitled to his seat
in the Forty-seventh Congress from the sixth district of Mississippi.

W. H. CALKINS.

A. H. PETTIBONE.

FEEEIS JACOBS, JR.

G. W. JONES.

A. A. EANNEY.

S. H. MILLEE.

JNO. T. WAIT.

GEO. C. HAZELTON.

WM. G. THOMPSON.

J. M. EITCHIE.

JOHN PAUL.

LYNCH VS. CHALMERS. 361

Mr. ATHERTON, from the Committee on Elections, submitted the follow-
ing as the

VIEWS OF THE MINORITY :

We cannot concur in the views expressed by the majority of the com-
mittee in this case. There are three legal propositions in this case
necessary to sustain the report as presented by the majority, either one
of which, decided in the negative, will defeat the claim of the con-
testant.

1st. Will Congress receive and count votes of which there is no evi-
dence except the certificate of a chancery clerk as to what purports to*
be a transcript of election returns of record in his office, when there is
no law in Mississippi authorizing any record to be made of election re-
turns by any officer, and when neither the chancery nor circuit clerk, nor
any other officer in Mississippi, is by law made the custodian of the
election returns after they have been counted by the commissioners of
election ? *

2d. Can Congress count votes which were rejected by the county
commissioners because they were not certified to by the inspector, as-
required by law, when there is no other proof of their validity except
the fact that the commissioners of election in their statement of the re-
sult give the number of ballots so rejected ?

3d. Will Congress refuse to follow the construction of a State statute
of election given by a State court ?

That the essentiality of these points in this case may be clearly under-
stood we present the result reached by the first tabulated statement
made by the majority, upon which alone they all concur, and upon which
they say their report is based :

Lynch. Chalmers^

Returned vote 5,393 9,172

Add rejected votes :

AVarren County 2,029 20

Deadman's Bend 85 15

Palestine 231 17

Australia 192 30

Bolivar 311 4$

Hay's Landing 39 24

Ben Lomoude 332 20

Dtincansby 371 4S

Rodney 247 92

Stoiieville... 315 60

9, 545 9, 540

From which \ve deduct 19O

And add that number to Lynch's vote to correct the returns in

Kinston precinct, Adams County 190

Which makes total , 9,735 9,330

Majority for Lynch 385

From this statement it will be seen that the vote of Issaquena County
at Hay's Landing, Ben Lomonde, and Duncansby, amounting in the
aggregate to 742 votes for Lynch and 89 for Chalmers, are counted to-
make a majority of 385 claimed for Lynch, and it is clear that if these
are not counted, there is a majority of 315 for Chalmers. Now, these
votes are counted on the certificate of Richard Griggs, chancery clerk
of Issaqtieua County, as confirmatory or auxiliary evidence. The ma-
jority say :

There are two statements in the Kecord which, taken together, enable

362 DIGEST OF ELECTION CASES.

us with reasonable certainty to arrive at the vote cast in three of the
four rejected precincts of this county. The first is the certificates of
election made by commissioners of election to the secretary of state,
and found on page 17 of the Record.

HAY'S LANDING.

They say with regard to this poll, that they find 75 votes reported by the election
officers; on four of the ballots all the names are scratched off, and they reject the poll
because there was no separate list of voters kept. At page 89 of the Record, Richard
Origgs, clerk of the chancery court for Issaquena County, certifies under the seal of
aid court that the paper appearing on that page of the record is a true and correct
transcript of the election returns made by the election officers as appears of record in
his office, by which it appears Lynch received 34 votes, and Mr. Chalmers 29 votes
for member of Congress. The commissioners of election for that county certify to
the secretary of state that they rejected this precinct return, and the clerk of the
<:ourt certifies that that return is on file in his office, a copy of which he give-;. The
two statements taken together are prima facie evidence of the vote received at the
poll. The highest number of votes appearing on the tally-list as certified by the
lerk agrees with the number the commissioners say were returned from that poll.
The commissioners are authorized by law to certify as a fact the number of votes
cast, and the clerk of the court is authorized by law, as the keeper of public records,
to give certified transcripts thereof.

For the reasons given in reference to Hay's Landing precinct, we also count Ben
Lomonde and Duncansby precincts, by reference to which it will be seen that Lynch's
vote was 332 and Chalmer's 20 in the former (Record, pages 17 and 90), and 371 for
Lynch, and for Chalmers 45, in the latter.

Now, it is clear that the certificate of the commissioners to the secre-
tary of state is not of itself sufficient to prove the votes rejected in this
county, and the majority do not so pretend. It is equally clear that
the certificate of the chancery clerk if it was evidence for any purpose
would fully prove the vote by itself without any aid from the certificate
of the commissioners, but the majority do not claim this for that certifi-
cate. But because the number of votes stated by the commissioner to
have been rejected corresponds with the pretended certificate of the
clerk we are asked to receive this as corroborating evidence. But in
order to reach this conclusion the majority say that " the clerk of the
court is authorized by law, as the keeper of public records, to give cer-
tified transcripts thereof." That is true when the clerk is "keeper
of the record," but the election returns form no part of any public rec-
ords in Mississippi, and therefore neither the chancery clerk nor any
other officer is the keeper of election returns after they have been
counted, and can give no certified transcripts thereof.

That there may be no mistake about this we give all the election laws
of the Code of 1880 of Mississippi bearing even remotely on this ques-
tion :

SEC. 105. The books 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
Bounty board of registration in each county, if 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 commissiouers
of election, and after the election shall be returned to said clerk.

SEC. 106. The clerk of the circuit court of each county shall register on the regis-
tration book of the election district of the residence of each person any one entitled
to be registered as an elector, upon his appearing before him and taking and subscrib-
ing the oath required by article 7, sec. 3, of the constitution, &c.

SEC. 107. When an elector duly registered shall change his residence to another
election district in the same cunty he may be registered in the election district to
which he has removed by appearing before the circuit clerk and requesting him to
erase his name from the register of election in the district of his former residence
and to place it on that of his present residence, which said clerk shall do.

Sec. 108 provides no person convicted of felony shall be registered

LYNCH VS. CHALMERS. 363

or if convicted after registration the circuit court shall erase his name
from the registration book.

Sec. 116 fixes the pay of the circuit court clerk for acting as regis-
trar.

SEC. 126. The commissioners of election in each county shall procure, if not already
provided, at the expense of the county, which shall be paid by order of the board of
supervisors, a sufficient number of ballot boxes, which shall be distributed by them
to each election precinct of the comity before the time for opening the polls, which
boxes shall be secured by good and substantial locks ; and if an adjournment shall
take place after opening the polls and before all the votes shall be counted, the box
shall be securely closed and locked, so as to prevent the admission of anything into
it during the time of adjournment, and the box shall be kept by one of the inspect-
ors and the key by another of the inspectors, and the inspector having the box shall
carefully keep it and neither unlock nor open it himself, nor permit it to be done, or
permit any person to have any access to it during the time of such adjournment.

SEC. 137. All ballots shall be written or printed in tylack ink, with a space not less
than one- fifth of an inch between each name, on plain white printing newspaper, not
more than two and one-half nor less than two and one-fourth inches wide, without
any device or mark by which one ticket may be known or distinguished from another,
except the words at the head of the ticket ; but this shall not prohibit the erasure,
correction, or insertion of any name by pencil mai^c or ink upon the face of the bal-
lot ; and a ticket different from that herein prescribed shall not be received or counted.

SEC. 138. When the results shall have been ascertained by the inspectors, they, or
one of them, or some fit person designated by them, shall, by twelve o'clock noon of
the second day after the election, deliver to the commissioners of election, at the
court-house of the county, a statement of the whole number of votes given for each
person and for what office ; and the said commissioners of election shall canvass the
returns so made to them, and shall ascertain and disclose the results, and shall, within
ten days after the day of said election, deliver a certificate of his election to the per-
son having the greatest number of votes for any office, &c.

SEC. 140. The commissioners of election shall, within ten days after the election,
transmit to the secretary of state, to be filed iijhis office, a statement of the whole
number of votes given in their county for each candidate voted for for any office at
such election, &c.

From this it will be seen that neither the circuit clerk nor chancery
clerk is the keeper of any public record which contains election returns,
and that the certificate of Griggs in this case is a nullity. The law on
that subject is as follows :

The law is well settled that statute-certifying officers can only make their certifi-
cates evidence of the facts of which the statute requires them to certify, and when
they undertake to go beyond this and certify other facts they are unofficial and no
more evidence than the statement of an unofficial person. (Sicetzler vs. Anderson, 2
Bartlett, 374.) This rule of course applies to election returns and to all certificates
which are by law required to be made by officers of election, or of registration, or by
returning officers. They can only certify to such facts as the law requires them to certify.
(Am. Law of Elections, sec. 104.)

In the United States district court, in the case of the United States vs.
Souder, it was held : *

In New Jersey a copy of the return of the township election filed with the clerk of
the county and sent to the office of the secretary of state, accompanied by the clerk's
certificate that it is a full aud perfect return of said election as filed in his office, is not
so made and certified and does not come from such a source as to constitute it an
official paper. (2 Abbott C. C.Rep., 456 ;) 1 Greenleaf, sec. 498, "Certificates."

In regard to certificates given by persons in official station, the general
rule is that the law never allows a certificate of a mere matter of fact,
not coupled with any matter of law, to be admitted as evidence. ( Willes,
549, 550, per Willeg, Ld. Ch. Justice.)

If the person was bound to record the fact, then the proper evidence
is a copy of the record duly authenticated.

364 DIGEST OF ELECTION CASES.

But as to matters which lie was not bound to record, his certificate,
being extra official, is merely the statement of a private person, and
will therefore be rejected. (Oaken vs. Hill, 14 Pick.. 442, 448 ; Wolfe vs.
Washburn, 6 Cowen, 26L ; Jacksonvs. Miller, 6 Covven, 751 ; Governor vs.
UcAffee, 2 Dev., 15, 18 ; United States vs. Buford, 3 Peters, 12, 29 ; Cliil-
dersvs. Cutter, 16 Miss., 24.)

Kejecting, therefore, the vote added by the majority report in Issa-
queua County, on the certificate of Griggs, the chancery clerk, and tak-
ing the other returns as made out by the majority, the result is as fol-
lows:

Lynch. Chalmers.

Keturnedvote 5,393 9,172

Add rejected votes :

Warren Conuty 2,029

Deadman's Bend 85 15

Palestine 231 17

Australia - 192 30

Bolivar 311 92

Eodney 247 92

Stoneville 315 60

8, 803 9, 498

Add 190 to Lynch and take eaine from Chalmers at Kingston 190 190

8, 993 9, 308

8, 993

Leaving majority for Chalmers of 315

BOLIVAR COUNTY.

But to accomplish even this reduction of the proper majority of Chal-
mers the votes claimed by contestant in Bolivar County at Australia
and Bolivar precinct' are cotmted. The returns from these precincts
were rejected by the commissioners of election because they were not
certified to. In other words, the commissioners had no legal evidence
that the ballots returned in these boxes were ever cast by voters. They
might have been stuffed in by any one on the road from the precinct to
the court-house.

That returns not certified to can never be counted is stated to be law
by every writer on election cases. The certificate is essential.

The rule of law on that subject has been thus stated in the American
Laws of Elections by Hon. George W. McCrary:

SEC. 174. It is the duty of the party seeking to avail himself of a vote which is not
legally certified and returned to make the necessary proof to supply the place of
the usual formal certificate, and if he fails to do so such vote cannot of course he re-
ceived.

SEC. 363. The general rule is that when the return is set aside hoth parties must
pyove their votes by other evidence.

SEC. 365. It is impossible to state more definitely than we have done the general
rule which should govern in determining whether a return should be set aside, and
the parties on either side required to prove their actual vote by other evidence.

SEC. 391. Ik is very clear that if the returns are set aside no votes not otherwise
proven can he counted.

The majority of the committee do not deny this principle of law, but
they contend that the votes, though rejected for a lawful reason by the
commissioners, must now be counted, because the commissioners in "their
certificate to the secretary of state show how many votes were rejected.
They say :

LYNCH VS. CHALMERS. 365

BOLIVAR COUNTY.

Under section 138 of the Mississippi code the inspectors of elections are required to
send up to the commissioners the whole number of votes cast at the poll, and the com-
missioners, under section 140 of the code, are required to "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."

This duty being enjoined by statute, their certificate is evidence of the fact that the
number of votes which they certify were given.

The majority are mistaken in this statement of the duty of the in-
spectors under the law of Mississippi. Their duty under section 138 is
not " to send up to the commissioners the whole number of rotes cast,"
but "a statement of the whole number of votes," &c. ; and by section 139
it is required that the statement shall be certified as correct by both the
inspectors and their clerks. (See sections 138.and 139, above set out.)

Xow, it is clear that the certificate is essential to identify and make
certain the return, and that without the certificate it is no legal return
and cannot be counted or considered as evidence in any way.

Without the certificate the commissioners^ who know nothing of their
own knowledge as to the election, can certainly make no statement of
the votes that would import verity as to the result. They are required
to report to the secretary of state as follows :

SEC. 140. 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 for any office at
such election, &c.

If these commissioners had undertaken to count and to transmit to
the secretary of state a statement of votes not certified by the inspect-
ors to them, this would have been clearly illegal, and yet when the
commissioners of Bolivar County refused to receive and count returns
not certified to them, and in the appendix to their statement to the sec-
retary of state stated that they had rejected these votes because not
certified, Congress is asked to count them without any other proof that
they are good and valid votes except the appended statement of the
commissioners as to the number of votes rejected and for whom they
purported to be cast.

The commissioners conceived it to be their duty in giving a statement
of the whole number of votes to give what they deemed legal and what
illegal returns, and because they did this the majority of the committee
say

This duty being enjoined by statute, their certificate is evidence of the fact that the
number of votes which they certify were given.

We give the report of the commissioners in full as follows :

Statement of the ichole number of rotts cast at the general election held in Bolivar County,
State of Mississippi, on the 2d day of November, A. D. 1880, as compiled from statements
certified to by inspectors from the different precincts in this county, this bth day of November,
A. D. 1880.

FOR PRESIDENTIAL ELECTORS.

(Names voted for. )
For Hancock and English :

1. F. G. Barry 259

2. C. P. Neilsou 259

3. C. B. Mitchell 259

4. Thos. Spight 259

5. Wm. Price 259

6. William H. Luse 259

7. Robt. N. Miller 259

8. Joseph Hirsh 259

366 DIGEST OF ELECTION CASES.

For Garfield and Arthur:

1. William B. Spears 1,016

2. K. W. Flournoy 1,016

3. J. M. Bynum 1,016

4. J. T. Settle 1,016

5. M. K. Mister 1,016

6. R. H. Montgomery 1,016

7. R. H. Cuny 1,016

8. Chas. W. Clark 1,016

For Weaver and Chambers :

1. R.H. Peelo 24

2. M. M. McLeod - 24

3. J. J. Dennis..- *. 24

4. S. L. Harmon 24

5. T. N. Davis 24

6. H. B.McGee 24

7. John T.Hull 24

8. J. D.Webster 24

For member of Congress from sixth Congressional district :

James R. Chalmers 301

John R. Lynch , 979

We, the undersigned, commissioners of election for the county of Bolivar and State
of Mississippi, do hereby certify that the above is correct.
Rosedale, Bolivar County. Miss., November 4, 1880.

JNO. H. JARNAGIN,
RILEY ROLLINS,
W. A. YERGER,

Commissioners of Election.
To Hon. H, C. MYERS,

Secretary of State, Jackson, Miss.

The following statement accompanied the foregoing returns :

ROSEDALE, BOLIVAR Co., Miss.,

November 4, 1880.
To Hon. HENRY C. MYERS,

Secretary of State, Jackson, Miss. :

DEAR SIR : We have this day duly met and canvassed the returns of this county,
and complied with the law in every respect, as we construed the same after duly con-
sulting the best legal authority in the county, and we now inclose to you our certified
report of the same. We have thrown out the Australia precinct box, 30 Democratic
and 192 Republican votes, because the returns were not certified to by the inspectors
or the clerks. We have thrown out Holmes Lake precinct, because the box was not
opened nor the ballots counted by the inspectors and numbered by the clerks, and no
returns nor tally-sheet made. We have thrown out the Bolivar precinct, 45 Demo-
cratic and 311 Republican votes, because there was no certified return from the in-
spectors and clerks. The tally-sheets sent in the box show the names of the electors
of the Democratic and Republican parties, of James R. Chalmers, John R. Lynch,
G. B. Lancaster, M. Roland, James Wiuters, Fleming, and James White, but does not
show for what office they were voted for. The tally is kept on four different sheets
of paper. The total can only be guessed at, and not ascertained correctly. We have
rejected the Glencoe precinct vote 27 Democratic, 233 Republican votes because the
vote was counted out in part by all the inspectors and clerks, and then discontinued
until next day, when the count was finished by one inspector and one clerk, and a
very imperfect tally-sheet and return sent in by those two not certified to.

JNO. H. JARNAGIN,
RILEY ROLLINS,
W. A. YERGER,
Commissioners of Election.

If the majority are right as to the effect of the commissioners' certifi-
cate, it will be seen that the certificate covers only the votes they counted,
and the appended statement, which was no part of the certificate, gives
the rejected votes and the cause of their rejection.

We claim, therefore, that Australia and Bolivar precincts should be
rejected, and the result, then, allowing votes claimed by the majority,
and not so far expected by us, would stand as follows :

LYNCH VS. CHALMERS 367

Lyncb. Chalmers.

Returned vote 5,393 9,172

Add reject*- d votes :

Warreu County 2, 029 20

Deadmau's Bend 85 15-

Palestine 231 17

Rodney 247 92

Stoneville 315 60

8, 300 9, 37ft

From which we deduct 190

And add that number to Lynch's vote to correct the returns in King-
ston precinct, Adams County _.. 190

8, 490 9, 18&

8,490

Leaving majority for Chalmers 696

COAHOMA COUNTY.

The votes claimed by contestant in Coahoma County are not counted
by the majority, but they are put into a tabulated statement, it is said,
for the information of Congress. For the same information we state
that the vote claimed depends for proof entirely upon United States
supervisor's certificate and the certificate of the circuit clerk that certain
election returns were on file in tlie ballot-boxes in his office. This was a
more farcical certificate than that of Griggs in Issaquena County, and
the majority, who could not agree that supervisors' certificates were evi-
dence, did not count this vote as claimed by contestant.

UNITED STATES SUPERVISORS.

The majority of the committee have not claimed that the certificates
made by United States supervisors of election in districts outside of
cities of 20,000 are evidence, but as they have submitted that question
to the House we hold that these supervisors are mere witnesses, whose
testimony must be obtained, like any other witnesses, by depositions-
properly taken.

The history of the passage of the act of 1872, the declarations of Mr.
Garfield, who reported the bill, and others who took part in the debate,
and the very language of sections 2018 and 2029 show that supervisors
in Congressional districts outside of cities of 20,000 inhabitants are
mere witnesses, and have no power to make certificates.

We quote from the brief of contestant.

Now, in the light of this history, when county supervisors were cre-
ated, what was meant by the words of limitation used, and now found
in section 2029, Eevised Statutes, as follows :

The supervisors of election appointed for any county or parish, or any Congres-
sional district, at the instance of ten citizens, as provided in section 2011, shall have
no authority to make arrests or to perform other duties than to be in the immediate
presence of the officers holding the election, and to witness all their proceedings, in-
cluding the counting of the votes and the making of a return thereof.

Contestant's brief argues that it was only intended to prevent the
county supervisors from making arrests. If this be true, then the words
" or to perform other duties than to be in the immediate presence of the
officers holding the election, and to witness all their proceedings, in-
cluding the counting of the votes and the making of a return thereof,"
have no meaning whatever.

368 DIGEST OF ELECTION CASES.

It is claimed in contestant's brief that section 2018 gives all super-
visors the power to make returns and certificates.
Let us look at the language.
Section 2018 of the Revised Statutes is as follows :

To the end that each candidate for the office of Representative or Delegate in Con-
gress may obtain the benefit of every vote for him cast, the supervisors of e[ection
are and each of them is required to personally scrutinize, count, and canvass each
ballot in their election district or voting precinct cast, whatever may be the indorse-
ment on the ballot, or in whatever box it may have been placed or be found ; to
make and forward to the officer who, in accordance with the. provisions of section
2045, has been designated as the chief supervisor of the judicial district in which the
city or town wherein they may serve acts, such certificates and returns of all such
ballots as such officer may direct and require, and to attach to the registry list, and
any and all copies thereof, and to any certificate, statement, or return, whether the
ame, or any part or portion thereof, be required by any law of the United States, or
of any State, Territorial, or municipal law, any statement touching the truth or accu-
racy of the registry, or the truth or fairness of the election and canvass, which the
supervisors of the election, or either of them, may desire to make or attach, or which
should properly and honestly be made or attached, in order that the facts may become
known.

We have asserted that the words " city or town wherein they may
serve," found in the eleventh line of this section, shows clearly that it
could not apply to county supervisors, even if this chapter, as it ap-
pears in the Revised Statutes, had been passed as a whole, though it
was not. But contestant's brief claims that " the allusion in section
2018 to the words ' city or town,' wherein the supervisor may serve, is
a, clause merely descriptive of the officer to whom returns are to be made,
to wit, the chief supervisor."

A glance at the section will show this is not true. The language is
" the city or town wherein they may serve," not he may serve, and is
descriptive of the supervisors who are to act in the city or town, and
is not descriptive of the chief supervisor. If so, it would have said " in
the city or town where he may serve." Again, contestant claims that
section 2018 of Revised Statutes is directed to supervisors generally, and
embraces all persons " sworn as supervisors."

If section 2018 covers the supervisors in county districts, and author-
izes them to make reports, then every other power or duty conferred
on supervisors by this section must also be conferred on them. Section
2018 requires supervisors "to personally scrutinize, count, and can-
vass," "to make and forward * * * such certificates and returns
of all such ballots," " and to attach to the registry list, and any and all
copies thereof, and to any certificate, statement," &c., by whomsoever
made, "any statements as to the truth or accuracy of the registry, or
the truth or fairness of the election and canvass," &c., which they may
desire to make ; and any one can see at a glance that this is utterly in-
compatible with section 2029.

It would be absurd to provide in section 2029 that they should only
l)e present and witness the count made by others, if by section 2018
they were required to count themselves. Again, if by section 2018 they
are required to make return it is worse than ridiculous to say in section
2029 they should only witness the returns made by others.

If, therefore, we refuse to receive the certificate of the United States
supervisors of election on the certificates of clerks who were not custo-
dians of election returns and could make no certificate about them, the
coutestee is entitled to retain his seat by 315 majority.

And unless we torture the statement of rejected votes into a certifi-
cate of their validity the coutestee must hold his seat by 696 majority.
This would be sufficient to settle this case, but as the majority of the

LYNCH VS. CHALMERS. 869

Committee have made what we regard as a fatal and hurtful mistake in
refusing to follow the supreme court of Mississippi in construing its
own election statute we proceed to discuss that question.

If that be decided as it has heretofore been it would, as the majority
of the committee admit, end this contest at once and leave the sitting
member in undisputed possession of his seat.

OBITER DICTUM.

But before proceeding to the consideration of that question we wish
to dispose of two points of objection made by the majority report to the
ase of Oglesby vs. Sigman, 58 Miss. R. They are, first, that the de-
cision is a mere obiter dictum ; and the second, that it is confessedly
without jurisdiction. An obiter dictum is an expression of opinion by
way of argument or illustration, and rendered without due considera-
tion as to its full bearing and effect. To show the want of authority of
an obiter dictum the majority quote from Carroll vs. Carroll, 16 How.
286-7.

The court say: "If the construction put By the court of a State upon
one of its statutes was not a matter in judgment, if it might have been
decided either way without affecting any right brought into question,
then, according to the common law, an opinion on such a question is not
a decision. To make it so there must have been an application of the
judicial mind to the precise question to be determined to fix the rights
of the parties and decide to whom the property belongs." There can
be no doubt about the judicial mind being directed to the construction
of the Mississippi election laws. The court say they considered them,
and that they were asked to consider them. This decision is, therefore,
not obiter as to the marked ballots, because it is -one of the very points
carefully considered and directly decided.

An obiter dictum is exactly what its term imports a saying of the
judge outside of and beyond the point decided. Therefore it cannot be
said that the decision of one of the very questions submitted, and to
which the judicial mind was especially directed, is obiter. But if we
should admit that the case of Oglesby vs. Sigman was obiter we have
still another decision from the same court on the same subject and of
the same import. This case cannot be called a, partisan decision, be-
cause a Democratic court gave the office to a Republican contestant.
The opinion in Perkins vs. Carraway says :

Certain ballots were rejected from the count because the names of persons voted
for for representatives in the legislature were found to be less than one-fifth of an
inch apart, and, urged by counsel, we pass upon that question also. Section 137 of
the Code prescribes the kind of tickets to be used, and, among other things, directs
that there shall be a space of not less than one-fifth of an inch between the names of
persons voted for; and declares that "a ticket different from that herein prescribed
shall not be received or counted." The language is unmistakable and imperative.
The preceding section indicates plainly the meaning of the word " ticket." It is a
"scroll of paper, on which shall be written or printed the names of the persons for
whom he intends to vote." Ballot is sometimes used by the statute to signify ticket,
but the latter is never used as synonymous with the former. The " ticket " describes
the paper, and names of persons, and the offices for which they are voted for. It in-
cludes all. The statute says: "A ticket different from that herein prescribed shall
not be received or counted." This applies to the entire " scroll of paper," and excludes
it as a whole. The language cannot be satisfied by limiting the exclusion from the
count to the ballot for the office in which the vice exists, and we must give effect to
the language of the law. It excludes the ticket.

Judgment affirmed.

This is but a repetition of the doctrine laid down in Oglesby vs. Sig -
H. Mis. 35 24

370 DIGEST OF ELECTION CASES.

man, that section 137 must be strictly construed. Here, then, is a line of
decisions carefully considered, and while it may be true that they construe
their statute more strictly than some decisions in other States, we must
permit the supreme court of Mississippi to construe its own statutes or
abandon the rule heretofore held to be essential to the preservation of
our complex system of government.

The majority of this committee refused to follow the supreme court of
Mississippi clearly announced in two opinions, and ask Congress to re-
gard section 137 as directory and not mandatory, because the supreme
court of California has construed its similar statute to be partly direct-
ory and partly mandatory. The argument that a strict enforcement of
this law is impossible is contradicted by the facts. In five districts of
the State the law was strictly complied with in 1880. Another election
was held in 1881, and no marked ballots were used in the State.

The argument that marks are essential to enable ignorant men to dis-
tinguish their ballots is an argument against the law and not the decis-
ion. The same argument would compel raised tickets to be furnished
for the use of blind men. The majority report criticises the object of the
law given by the court as follows :

The object is to secure absolute uniformity as to the appearance of ballots, in order
that intelligence may guide the electors in their selection, and not a mere device or
mark by which ignorance may be captivated.

They maintain that this is prescribing an educational qualification for
voting in violation of the Mississippi constitution. This is a clear mis-
apprehension of the meaning of the court. When marks are relied on
to distinguish ballots, ignorant men can be, and usually are, deceived
by shrewd political opponents. The prohibition of marks protects the
ignorant against such deception. Without marks the ignorant voter
will not rely on himself, but trust to the intelligence of his friends to dis-
tinguish his ticket. Suppression of marks was also essential to preserve
the secrecy of the ballot, and yet the contestant admitted that the col-
ored men were ordered or directed to vote an open ticket. This was in
violation of the law of Congress which requires voting by ballot. This,
was equivalent to viva voce voting, and subjected to odium all colored
men who refused to vote an open ticket. This the contestant said was
the mark he adopted, and it was clearly a device by which one ticket
might be distinguished from another.

HAD THE COURT JURISDICTION ?

But the majority say

First. The court declared in terms it had no jurisdiction of the subject-matter em-
braced in the first and second grounds stated in the opinion ; but the court, after
remarking upon its want of jurisdiction on the first two points stated in the begin-
niug of its opinion, and having disposed of the third on the ground that the official
duties of the election officers were at an end and that they could not be reassembled,
proceeded to construe the law relative to distinguishing marks, and decide what wer&
such by the terms of the Mississippi Code so far as it could do so, the same being con-
fessedly not before them.

This is neither legally nor historically true of this decision. The
court did not anywhere admit its want of jurisdiction, nor did it, after
admitting that a decision of one point in the case might have been
sufficient to decide the whole case, proceed to decide the other two
points first stated. Historically, it decided first the two first points,
and then the third. It is a general rule that where a court has decided
one point which is decisive of a case it will not decide others, but this
rule is by no means universal. (See Ram on Legal Judgments, 258-9,

LYNCH VS. CHALMERS. 371

and the cases there cited.) But it is an unheard-of proposition to say
where there are several distinct and vital points in a case, and the court
decides them all, the opinion is not authority except on one point, if
that would have been decisive of the case.

Thousands of cases can be found where all the points presented are
decided, though the decision of one might have been sufficient. The
most notable instance is the case of exparte Siebold (10 Otto). In that
case it was only necessary to decide that sec. 5515 of the Eevised Stat-
utes United States was constitutional, and that would have settled the
whole case ; but the court proceeded to settle all the questions that had
arisen, or perhaps could arise, under the United States elections laws,
including the power of United States marshals to keep the peace at the
polls and the power of United States judges to appoint supervisors of
election.

We presume no one will say that opinion was either obiter or without
jurisdiction on any point decided. How, then, can it be said that the
supreme court of Mississippi was without jurisdiction to pass upon ques-
tions which it assumed to pass upon ? Want of jurisdiction might
result, first, from general lack of power to adjudicate any question, as
where the pretended judges have never been elected or qualified ; sec-
ond, where the court has acquired no jurisdiction of the persons of the
parties; third, where it has no jurisdiction of the subject-matter of the
action. It is not claimed that the supreme court of Mississippi was
not a properly constituted tribunal, nor is any question made touching
its jurisdiction over the parties, but that it had no jurisdiction to decide
what were and what were not legal ballots. To determine this, let
us look at the questions presented and how they were presented. A
new election law had been enacted in Mississippi, and the first election
held under it. It required marked ballots to be rejected, and they had
been by the commissioners of Warren County. These commissioners
had been arrested and tried as criminals in the United States court for
obeying what they conceived to be the plain language of the law in the
discharge of their duty. There was great doubt in the public mind as
to what the law meant by marked ballots, and as to who should reject
them.

Other commissioners were arrested and threatened with prosecution
for their acts in discharge of what they conceived to be their duty under
this new election law. The public was greatly excited over these prose-
cutions, and citizens were saying they would not act as commissioners
of election if they were to be prosecuted in the United States courts for
exercising their discretipn in deciding on their duty.

Under these circumstances the district attorney, Mr. Oglesby, at the
suggestion of the attorney-general, filed a petition for mandamus, pre-
pared under the direction of the attorney-general, to settle these ques-
tions. The statute under which it was filed read as follows :

SECTION 2542 OF THE CODE OF MISSISSIPPI, 1880.

On the petition of a State by its attorney-general, or a district attorney, in any
matter affecting the public interest, or on petition of any private person who is inter-
ested, the writ of mandamus shall be issued by a circuit court commanding any infe-
rior tribunal, corporation, board, officer, or person to do, or not to do, an act, the per-
formance or omission of which the law especially enjoins as a duty resulting from an
office, trust., or station ; and where there is not a plain, adequate, and speedy remedy in the
ordinary course of laic.

The jurisdictional facts were stated in the petition, and were certainly
matters greatly affecting the public interest. It asked that the commis-

372 DIGEST OF ELECTION CASES.

sioners of election be required to reassemble and perform a duty required
of them by law, to wit, the rejection of certain marked ballots which had
been counted by them. It was directed to an inferior tribunal command-
ing them to do an act " which the law'enjoined as a duty."

The case being decided adversely to the petitioner in the court below,
was appealed to the supreme court.

Campbell, J., delivered the opinion of the court.

This case presents for adjudication three questions, namely :

1. Whether the commissioners of election have the right to reject illegal ballots cast
and counted by the inspectors of election and returned to them with the statement of
the result at the precincts.

2. Whether the ballots which the commissioners of election for Tunica County re-
fused to reject should have been rejected by them as being illegal, for having on them
a device or mark by which one may be known or distinguished from another.

3. Whether the action of the commissioners was final, or whether they may be re-
quired by maudamus to meet and act in the matter again, as the court may order.

A negative answer to the first question would have rendered further
consideration of the case unnecessary. An affirmative answer to the
first and a negative answer to the second question would have rendered
the determination of the third unnecessary. Each of these questions
was purely local and each required the construction of a State statute.
Suppose the court had decided that the commissioners could not reject
ballots counted and returned to them by the inspectors 5 this would have
decided the case. Would any one have said such decision was without
jurisdiction 1 ? If the court had decided that the commissioners could
reject illegal ballots returned, but that ballots with printers' dashes on
them were not illegal, this would have decided the case. Would any
lawyer say such decision was without jurisdiction? It was necessary
to decide these questions first before the court was called on to decide
the third proposition. If the court had jurisdiction to decide that bal-
lots marked with printers' dashes were not illegal, and thus decide this
case, had they not jurisdiction to decide the converse of the proposition t
It would be a novel legal idea that a court had full Jurisdiction to de-
cide a question submitted in one way, but if it decided the same ques-
tion the other way it was obiter or without jurisdiction. The right to
determine the case at all carries with it the right to decide either way
and upon all points involved.

The court was called on to compel, by mandamus, the election commis-
sioners to make right a wrong they had committed. The first thing to
be settled was whether he had done any wrong. If the court had de-
cided that the commissioners did right in counting the marked ballots,
that would have ended the case, and it would have been unnecessary
to go further.

The court held, however, that the commissioners did do wrong, but
that it had no power to make them reassemble and right that wrong.

It might be said the court should have stopped short with this decla-
ration, but it did not. It proceeded to show what was the proper rem-
edy for the wrong. It said the remedy was in a contested election.
That in State cases this contest must be made before State tribunals
and in Congressional elections before Congress.

To claim that this election can have no weight in a contested election
before Congress because the court said Congress must settle Congres-
sional contests would lead to the conclusion that it could have no weight
in a contest before a State tribunal, because it said the State tribunal
must settle State contests.

LYNCH VS. CHALMERS. 373

THE MISSISSIPPI DECISION EIGHT ON PRINCIPLE.

The majority of the committee contend that the case of Oglesby vs.
Sicilian is not sustained by other authority.

The first and leading case on the subject of marked ballots was in
Pennsylvania, in The case of The Commonwealth vs. Woelper, 3 S. and R.,
29. The opinion was delivered by Chief Justice Tighlman and concurred
in fully in separate opinions by Justices Yeates and Gibson, and they
all held that the law should be strictly construed as written. The court
said :

The tickets in favor of those persons who succeeded in the election had on them
the engraving of an eagle. The judge who tried the case charged the jury that these
tickets ought not to have been counted. The case is certainly within the words of
the law. The tickets had something more than thenan\es on them. But is it within
the meaning of the law ? I think it is. This engraving might have several ill effects.
In the first place, it might be perceived by the inspector, even when folded. This
knowledge might possibly influence him in receiving or rejecting the vote. But in
the next place, it deprived those persons who did not vote the German ticket of that
secrecy which the election by ballot was intended to secure to them. A man who gave
in a ticket without an eagle was set down as an anti-German and exposed to the ani-
mosity of the party. Another objection is that the symbols of party increase that
heat which it is desirable to assuage. We see that at the election some wore eagles
on their hats. The case thus falling within the words and practices of this kind lead-
ing to inconvenience, I think the court ought not exercise its ingenuity in support of
these tickets. Let us at least prevent future altercations at elections by laying
down such plain rules for the conduct of inspectors as cannot be mistaken. I am for
construing the by-law as it is written, and rejecting all tickets that have anything on
them more than the names. This objection strikes at the root of the election, for the
evidence is that all the tickets in favor of the defendants were stamped with an eagle.
Whatever, therefore, may be the law on other points, it is clear, upon the whole, that
the defendants were not duly elected.

The precise same doctrine was held in Oregon. ' The court says :

Section 30, page 572, of the Code provides that "all ballots used at any election
in this State shall be written or printed on a plain white paper without any mark or
designation being placed thereon whereby the same may be known or designated."
The voter in this instance is conclusively presumed to have had knowledge of this
requirement and to have had it in his power to comply with it by using a proper
ballot. It was a matter entirely under his own control, and if he chose to disregard
the law, he cannot complain if the consequence was that his vote was lost. (The
State vs. McKinnon, 8 Oregon, 500.)

This fully sustains the Mississippi decision, even if we admit the dis-
tinction taken by the majority report that the voter is only bound to ob-
serve so much of the law as he could by the exercise of proper dili-
gence in matter under his control. The California case cited by the
majority, though it (litters from the case of Perkins vs. Carraway re-
cently decided in Mississippi, as to the spaces between the names on
the ticket, sustains Oglesby vs. Sigman as to the marks. The court
say:

There are, however, other requirements of the Code within the power of the elector
to control, and these, if willfully disregarded, should cause his ballot to be rejected.
He can see, for instance, that his ballot is free from every mark, character, device, or
thing that would enable any one to distinguish it by the back, and if, in willful dis-
regard of law, he places a name, number, or other mark on it, he cannot complain if
his ballot is rejected and he loses his vote. (Kirk v. Khoades, 46 Cal., 398.)

The same doctrine was held in Alabama.

374 DIGEST OF ELECTION CASES.

Before Hon. Louis Wyeth, Judge of the Fifth Judicial Court.
THE STATE OF ALABAMA, Cullman County:

CHARLES PLATO )

vs. > Contest of election.

JULIUS DAMCS. )

In this case Charles Plato contests the election of Julius Damns to the office of
mayor of the town of Cullroan, in the county of Cullman, claiming to have been
elected to that office himself by a majority of the votes cast at the election held on
the first Monday in April, 1879.

The respondent claims to hold the office under the certificate of election issued by
the proper officers under the provisions of the "act of assembly to establish a new
charter for the town of Cullman." (Pamphlet Laws of 1879, p. 304, section 9.)

On examining and counting the votes it appears that fifty-four of them were cast
for the contestant and twenty-seven for the respondent ; of these fifty-four votes
given for the contestant, fifty-two had printed on them at the top of the ballot the
words " Corporation ticket," and of the twenty-seven votes cast for respondent
three had in like manner printed thereon the same words, and the question for me to
decide is whether or not those words rendered the ticket on which they were printed
illegal ballots, and such as must be rejected.

The act approved February 12, 1879, Pamphlet Laws, pp. 72-'3, requires that the
ballot must be a plain piece of white paper without any figures, marks, rulings, char-
acters, or embellishments thereon, * * * on which must be written or printed
* * * only the names of the persons for whom the elector intends to vote, and must
designate the office for which each person so named is intended by him to be chosen,
and any ballot otherwise than described is illegal, and must be rejected.

The law under which the election now being considered was held, in section 4,
Pamphlet Laws 1879, p. 305, declares "that the election provided for in this charter
shall be regulated by the general State election law."

These ballots had more than only the names of the persons for whom the elector in-
tends to vote, or the designation of the office, and must be rejected because illegal.
Such is the mandate of law, and so I must declare it.

It is considered, adjudged, and ordered that the election of Julius Damns, as mayor of
the town of Cullman, in the county of Cullmau, be confirmed, and that the contestant
pay the costs of this court.

LOUIS WYETH,

Judge, #c.

JUNE 9, 1879.

Precisely the same doctrine was held by this committee in the case of
Yeates vs. Martin, and the opinion on that point prepared by Mr. Field,
now on the supreme bench of Massachusetts. It said :

One hundred and eight votes for Mr. Martin were thrown out not counted, because
they had on them the words " Republican ticket," at or near the head of the ticket, on
the same side as the name of the candidate and office. They were thrown out on the
ground that the words "Republican ticket" were a device within the meaning of the
laws of North Carolina.

If these words constitute a device within the meaning of the law, the statute is
plain that the ballots are void and are not to be counted.

Either way, we think that words prominently printed on a ticket, and intended to
designate or describe it, and which have a distinct meaning in themselves, 8uch as,
if untrue, might mislead the voter, and whether true or untrue would render the
ticket easily distinguishable, must be held to be a device within the meaning of the
law (McCrary on Elections, $ 401). These votes were rejected by the State authorities,
and we think rightfully.

It is a simple question whether this statute is mandatory or merely
directory.
McCrary, in American Laws of Elections, section 401, says:

It is quite clear where the statute distinctly declares that ballots having distin-
guishing marks upon them shall not be received or shall be rejected, it should be con-
strued as mandatory and not merely directory.

LYNCH VS. CHALMERS. 375

The Indiana courts hold their statute mandatory if the marks appear
on the back of the ticket. The language of the Mississippi statute
shows it was intended to apply to marks on the face as well as the
back. After prohibiting marks or devices, it says :

But this shall not prohibit the erasure, correction, or insertion of any name by
pencil mark or ink upon the face of the ballot.

This exception as to one kind of marks on the face of the ticket
clearly shows that any other marks on the face of the ticket are pro-
hibited. We can see the marks on the contestant's ticket ourselves,
and it would be our duty to reject them without any decision from the
supreme court of Mississippi. We hold, therefore, that the statute was
mandatory, and the decision right in itself. If the court had decided
as the majority of the committee now decide, it would have produced
the utmost confusion in the State.

A strict construction of the law is always safest and best, and espe-
cially of law which refers to political powers, duties, or rights.

When we launch into the broad sea of latitudinous construction we
have neither chart nor compass, and the law becomes a dangerous in-
strument in the hands of those who construe it and who may contract
or expand it to suit the demands of those in power.

A. contrary decision would have launched every board of election
commissioners in the State on a sea of uncertain speculation as to what
were and what were not marks within the meaning of the law. Fraud
and corruption could be covered under their discretion to determine
this question, and the whole election machinery could be converted into
a political engine for partisan use. Certainty in law is essential to the
preservation of civil rights, and the case of Oglesby vs. Sigman gave
certainty to the election laws of Mississippi.

There is no longer any doubt or uncertainty. This alone being a
matter of great " public interest" would have justified the district at-
torney, Oglesby, in suing out his petition for mandamus; and if there
were no other ground for it, this alone would sustain the jurisdiction of
the court. It was not a case of Lynch vs. Chalmers to settle a Congres-
sional election, but of the district attorney vs. the election commission-
ers to settle great questions of public interest.

THE EFFECT OF STATE DECISIONS OF STATE STATUTES.

If any rule of law can ever be regarded as settled, certainly the rule
that Federal authorities would follow the construction of State statutes
by State courts must be regarded as settled by a long line of able and
unbroken decisions. The only exceptions made to this rule by the Su-
preme Court of the United States are where the State courts have made
conflicting decisions, as in the case of the city of Dubuque, 1 Wall.,
175, or in cases arising under the twenty-fifth section of the judiciary
act.

From the time of the case of Shelby vs. Gray (in 11 Wheaton, 361),
through Green vs. ISTeal (6 Peters, 291), Christy vs. Pritchett (4 Wallace,
201), Tioga Railroad vs. Blossburg Kailroad (20 Wallace, 137), down to
Elm wood vs. Macey (2 Otto, 289), an unbroken line of decisions will be
found.

The court say, in the case of Green vs. Neal :

The decision of this question by the highest tribunal of a State should be consid-
ered as final by this court, not because the State tribunal, in such a case, has any
power to bind this court, but because a fixed and received construction by a State in.
ts own court makes it part of the State law.

376 DIGEST OF ELECTION CASES.

In the case of the Tioga Eailroad Company vs. the Blossburg Bail-
road, in 20 Wallace, 143, the court uses the following language :

These decisions upon the construction of the statute are binding upon us, whatever
we may think of their soundness on general principles.

See Jefferson Branch Bank vs. Skelly (1 Black, 443); Gut vs. The State (9 Wallace,.
37) ; Randall vs. Brighani (7 Wallace, 541) ; Secomb rs.Railroad Company (23 Wallace,.
117); Folk's Lessee vs. Wendell (9 Cranch, 98); and Nesmith vs. Sheldon (7 Howard,
818). Numerous other adjudications of that court could be cited to the same effect.

It is now maintained that this doctrine applies only as a rule of prop-
erty. The only excuse for this new idea to be found in the decisions in
the Supreme Court is where the court say they will not follow the last
decision of a State court changing the construction of its laws after the*
first decision has become a rule of property ; otherwise the Supreme
Court of the United States would follow the new construction given by
the State court. To say that the Supreme Court of the United States-
will only follow a State court "on a rule of property" is a total miscon-
ception of the principle announced by the court. But whatever may
be the rule in the Supreme Court of the United States, Congress has in
every case, without exception, followed this rule, and in the Tennessee-
cases in the Forty-second Congress, and the Iowa cases in the Forty-
sixth Congress, extended the rule to following the construction of the
State laws given by the governor of a State. The same rule was fol-
lowed, and on the question of marked ballots, in case of Neff vs. Shanks-
in the Forty-third Congress, and Yeates vs. Martin in the Forty-sixth
Congress. The same rule was followed in Bisbee vs. Hull, and the doc-
trine broadly laid down as correct in Boynton vs. Loring iu the same
Congress. We cite the language of the committee in these cases.

CONGRESS FOLLOWS THE STATE DECISIONS.

This rule was first established in the Forty-second Congress in what
is called the Tennessee cases, when the report was made by the Hon.
G. W. McCrary :

In a report from the Committee on Elections, adopted by this House April 11, 1871 r
in the matter of the Tennessee election (Digest of Election Cases, compiled by J. M.
Smith, p. 1), the committee say:

"It is a well-established and most salutary rule that where the proper authorities-
of the State government have given a construction to their own constitution or stat-
utes, that construction will be followed by the Federal authorities. This rule is abso-
lutely necessary to the harmonious working of our complex government, State and
national, and your committee are not disposed to be the first to depart from it.

This decision was cited with approbation in the Forty-sixth Congress
in the Iowa cases, and in the report on these cases, signed by Messrs.
Field, Keifer, Calkins, Camp, Weaver, and Overton, they say:

We are not disposed to be the first to depart from it, and we certainly think that such
a decision, made in good faith and acquiesced in at the time by the people of the-
State, and followed by a full and fair election, should not be overthrown or ques-
tioned, except for the gravest reasons, founded on an undoubtiug conviction that it
was plainly an error, and that the error had worked some substantial injury.

In the same case Mr. Beltzhoover says :

2. The question whether the constitution of the State of Iowa " must be amended
in order to effect a change in the election of State officers," it is one which it is the
exclusive right of the State to decide. The persons to whom the constitution and
laws of Iowa confide this decision have made it, and their determination is a finality,
and is conclusive on all parties. The committee have not the right to review the
decision.

The case of Curtin vs. Yocum, in the Forty -sixth Congress, turned
upon the construction of the constitution of Pennsylvania, and the mi-

LYNCH VS. CHALMERS. 377

nority report, which was made by Mr. Calkins and signed by Messrs.
Keifer and Weaver, relied upon the construction of the State court, and
used this emphatic language, speaking of an unregistered voter :

We think this question, under the present constitution and laws of Pennsylvania, not an
open one. The highest court of judicature of the State has decided it; at least it has given
a construction to that part of the new constitution under consideration, and ice quote there-
from.

This minority report was adopted by Congress, and a Greenbacker
was permitted to retain his seat in a Democratic House.

In the case of Bisbee vs. Hull, in the Forty-sixth Congress, the decis-
ion of the supreme court of Florida was held to be conclusive by the
committee and the House. When the admission of Mr. Hull, who held
the governor's certificate, was under discussion, Mr. Calkins said :

How can this certificate stand, even as establishing a prima facie right, when the*
basis upon which it rests has been swept away by a decision of the supreme court of the-
State of Florida f

When the case was considered on its merits, the committee unani-
mously followed the decision of the supreme court of Florida, and
a Democratic House unseated a Democrat and seated a Republican
under it.

*The report made by Mr. Keifer uses this emphatic language:

The opinion of the supreme court of Florida, pronounced by the chief justice, on
the question of canvassing the vote of the county of Madison, will be found in the-
Record, p. 221.

* * * "As already stated, duly certified copies of these returns were put in evi-
dence by the contestee ; they are signed by all the officers of the election ; they are
perfect in form, clear and explicit in the statement of the votes cast, and have all teen
adjudged by the unanimous opinion of the supreme court of Florida, in a case before it, to be-
good and valid returns of the election at these polls." (17 Florida Rep., p. 17.)

Again, in the case of Boynton vs. Loring, the report, which was pre-
pared by Mr. Calkins, and signed by every member of the committee
except Mr. Weaver, contains this clear and explicit announcement of
the doctrine we contend for. It says :

But it is not necessary for ns to decide this question, and we do not, much preferring that
the courts of Massachusetts shall first construe thtir men statutes, and when they have under-
gone judicial construction we would follow the decisions of the courts of that State.

The Committee on Elections is as much a continuing body in contem-
plation of law as a court, and should have as much respect for its own
rulings as a court has for its decisions, and " stare decisis" should be our
rule. Under the rule that Federal authorities follow the construction
given by State authorities to their own statutes, two Tennessee Re-
publicans were seated in the Forty-second Congress, Shanks, a Repub-
lican, was seated in the Forty-third Congress, Yocuin, a Greenbacker r
Bisbee from Florida, and three Republicans from Iowa were seated in
the Forty- sixth Congress. To undertake now to change this rule or
limit it to a rule of property, may subject us to the same severe rebuke
for oscillation administered to a State court by the Supreme Court of
the United States. To say in one Congress we will follow the decision
of the supreme court of Massachusetts in construing its statute when
made, and in the next Congress refuse to extend the same rule to the
supreme court of Mississippi, is glaring inconsistency or invidious dis-
tinction between States. If we have respect for ourselves, we should
make no radical change of ruling that may subject us to the charge
that we " immolate truth, justice, and law because party has erected
the altar and decreed the sacrifice."

378 DIGEST OF ELECTION CASES.

LIMITATIONS ON THE RULE.

Bat while the majority of the committee have expressed some views
looking to a change in this rule, said to be essential to the preservation
of our complex system of government, they do not go to that extent.
They say :

It need, however, hardly be added that a line of carefully considered cases in the
States, in which such courts have undoubted jurisdiction, so far as they would apply
in principle, would go a long way towards settling a disputed point of construction
in any State election law. In fact it may be said that it would probably be the duty
of Congress to follow the settled doctrine thus established.

We have here two new limitations on the old rule. First, it must not
be a single decision, but " a line of carefully considered cases." Sec-
ond, the court must, in the opinion of Congress, when collaterally con-
sidering the subject, have had jurisdiction of the case. It is a new arid
somewhat startling proposition that the opinion of a supreme court is
not to be considered authority until it has been repeated. If the citi-
zens of a State acquiesce in a decision of their own supreme court it
may and often does happen that the court is not called on to reaffirm
its opinion, because no one doubts or disputes its first ruling on the
subject, and yet Congress is now asked not to regard as authority any-
thing less than a line of well-considered cases.

DO STATE LAWS BECOME FEDERAL LAWS?

Again the majority report says:

Another suggestion in argument needs greater amplification than we can give it
now, which is: that by adopting the machinery of the States to carry on Congres-
sional elections this House stands in the nature of an appellate court to interpret
these election laws so far as they relate to Congressional elections ; that it ought
not in this view to be bound by the decisions of the State courts at all, unless the
reasons given by them are convincing to the judicial mind of the House while acting
in the capacity of a court.

The suggestion made in argument was that the State election laws be-
came Federal laws when Congressmen were elected under them, and
therefore Congress had the same right to review the decision of a State
court in construction of these laws that the Supreme Court of the United
States had to review the decision of a State court on any question arising
under the twenty-fifth section of the judiciary act. This was an ingen-
ious suggestion, but it is completely refuted by the Supreme Court of the
TJnited States in ex parte Siebold (10 Otto). The court say, "The ob-
jection that the laws and regulations, the violation of which is made pun-
ishable by the act of Congress, are State laws and have not been adopted
by Congress, is no sufficient answer to the power of Congress to impose
punishment. It is true that Congress has not deemed it necessary to
interfere with the duties of the ordinary officers of election, but has been
content to leave them as prescribed by State laics." Again, "the para-
mount character of those made by Congress has the effect to supersede
those made by the State, so far as the two are inconsistent, and no
further." The great question in this case was whether Congress could
make a law to punish a man for the violation of State election laws in
Congressional elections, and the able opinion of the court would have
been wholly unnecessary if the new theory now advanced were true that
the State laws become Federal laws simply because Congressmen are
elected under them. Such an idea is wholly repugnant to the Constitu-
tion, which expressly provides that the States may make laws for the
election of Congressmen while Congress may make, alter, or amend them.

LYNCH VS. CHALMERS.

379

THE SHOESTRING DISTRICT.

There is no satisfactory result flowing from this contest. The public
have been led to believe that there was 17,000 Eepublican majority
in the sixth district of Mississippi, familiarly called the " shoestring
district," being five hundred miles long and only forty miles wide, and
yet the majority of this committee, after a thorough investigation, only
claim a majority for contestant of three hundred and eighty-five votes.
The counties of Claiborne, Quitman, Sharkey, Tunica, and Wilkinson
are shown by the census to have 5,795 majority of colored over white
voters and yet there is no complaint made by the contestant, and no
contest over the votes in these counties, although they gave 1,762 ma-
jority for the sitting member. Again, the public have been led to be-
lieve that great frauds have been practiced in this district, and yet the
only fraud now claimed by the majority report is a change of one hun-
dred and ninety votes at Kingston, in Adams County.

There is no dispute about the vote in the counties of Claiborne, Quit-
man, Sharkey, Tunica, and Wilkinson, and" the vote in these counties,
as shown by the sworn bill in chancery of Mr. Lynch, is as follows :

Counties.

Chalmers.

Lynch.

Claiborne

1,061

288

See Record, p. 10.

Quitman

153

Sharkey...

484

175

it it

Tunica

239

506

ii ii

Wilkinson ..

1,691

814

ii ii

Five counties . .....

3,628

1,866

Majority for Chalmers, 1,762.

In the disputed counties the returns certified to the secretary of state
are as follows :

Counties.

Chalmers.

Lynch.

Adams

1,387

898

See Kecord, p. 13-14.

Bolivar.

301

979

14-15.

225

352

15-16.

Issnquena

333

17-18.

Jeffi'vson

951

136

19-20.

Warren

1 014

20-21.

Washington

1,607

772

22-23.

5,544

3,527

Majority for Chalmers, 2,017.

Total majority, 3,779.

If we follow the supreme court of Mississippi, and reject the marked
ballots, Chalmers is elected by a large majority.

If we count the marked tickets rejected in Warren County, 2,029 for
Lynch, and 20 for Chalmers; the Rodney box in Jefferson, which is ad-
mitted, 247 for Lynch, and 92 for Chalmers; the Stoneville box in Wash-
ington County, 315 for Lynch, and 60 for Chalmers ; Deadman's Bend
and Palestine, in Adams County; if we further change the vote at
Kingston, as it is claimed by the contestant, giving him 190 votes, and
take the same from contestee, the result is:

380 DIGEST OF ELECTION CASES.

Lynch. Chalmers.

Returned vote 5, 393 9, 172

Add rejected votes, Warren 2, 029 20

Rodney box in Jefferson 247 92

Stoneville, in Washington 315 60

Deadman's Bend, Adams County 85 15

Palestine, Adams County 231 17

8, 300 9, 376

Change Kingston box, adding 190 Subtracting 190

8, 490 9, 186

8,490

Leaves majority for Chalmers 696

So that the contestant is clearly defeated, unless the certificates of the
United States supervisors of elections and the certificates of clerks as
to election returns over which they have no control and no power to
certify are received as legal evidence. We therefore recommend the
adoption of the following resolution :

Resolved, That John R. Lynch was not elected and is not entitled to a
seat in the Forty-seventh Congress from the sixth district of Mississippi.
Resolved, That James E. Chalmers was elected and is entitled to his
seat in the Forty-seventh Congress from the sixth district of Mississippi.

GIBSON ATHERTOK
S. W. MOULTON.
L. H. DAVIS.

.
GTJSTAVTJS SESSINGHATJS vs. R. GRAHAM FROST.

THIRD CONGRESSIONAL DISTRICT OF MISSOURI.

Contestant alleges that the votes of a large number of the electors who offered to vote
for him were illegally rejected by the judges of election, because their names were
stricken off the registration list by the board of revision ; because their names
were misspelled or incorrectly numbered on the registration list ; because some
who had never registered or voted in Saint Louis registered only on the day of
election, and because some who had never registered or voted in Saint Louis ap-
peared at the proper polling places and offered to register and to vote for con-
testant, bat the officers whose duty it was failed and refused to register them.

Contestant further alleges that a large number of ballots headed " Chronicle Selected
Ticket," " Greenback Labor Ticket," and " Hancock Independent Ticket," con-
taining his name for Representative in Congress were not counted, as being fraud-
ulent and designed to mislead the voter.

That a large number of ballots were not counted for him because his given name was
not printed thereon.

That a mistake was made in footing up the returns in one precinct by which a num-
ber of votes were lost to him, and a number added to contestee.

That a ballot made up of parts of two tickets, with only one name for each office, and
that of contestant for Representative, was not counted.

Held, That neither the constitution of Missouri or any statute in force in Saint Louis
made registration an absolute prerequisite or qualification to vote. The charter
and ordinances of the city of Saint Louis provide for a system of registration, but
do not in express terms make registration a prerequisite or qualification for voting.

SESSINGHAUS VS. FROST. 381

The ordinance of the city being followed by the board of revision in striking off names,
and by the election officers in refusing to receive ballots, and the constitution of
Missouri having authorized the general assembly alone to enact a registration
law, such ordinance was of no binding effect, and the votes of those who offered
to vote and were refused must be counted as proven.

The tickets with different headings and the one made up of parts were legal and must
be counted, and so must the tickets that had not the given name of contestant,
the evidence showing that no other person by the name of Sessinghaus was a can-
didate at that election in that district for any office.

A mistake in the footing of returns being proven, such mistake is corrected to conform
with the true vote.

The House adopted the majority report.

FEBRUARY 17, 1883. *Mr. MILLER, from, the Committee on Elections,
submitted the following

REPORT:

The Committee on Elections, to whom was referred the contested election
case of the third Congressional district of Missouri, having had the same
under consideration, beg leave to report :

As appears from the returns of the election held in the third Con-
gressional district of Missouri on the 2d day of November, 1880. E.
Graham Frost (contestee) received 9,487 votea; Gustavus Sessinghaus
(contestant) received 9,290 votes, and D. O, Connell (Greenback) re-
ceived 266 votes.

Mr. Frost having a plurality of 197 votes on the face of the returns
was awarded the certificate of election.

Within the statutory period after the issue of the certificate of elec-
tion, Mr. Sessinghaus caused to be served on Mr. Frost a notice that he
would contest the seat held by the latter as Eepresentative in the Forty-
seventh Congress from the third Congressional district, specifying par-
ticularly the grounds upon which such contest would be maintained.

An answer was shortly after filed by Mr. Frost, the contestee herein.

Testimony was then taken on the part of the contestant and contestee
within the ninety days allowed by the act of Congress.

At the time of the above election the city of Saint Louis was partially
divided into three Congressional districts. The third district was com-
posed of one township in Saint Louis County and of the northern part
of the city of Saint Louis.

The constitution of the State adopted in 1875, in prescribing the qual-
ifications of voters, reads as follows :

Every male citizen of the United States, and every male person of foreign birth who
may have declared his intention to become a citizen of the United States, according
to law, not less than one year, nor more than five years before ho offers to vote, who
is over the age of twenty-one years, possessing the following qualifications, shall be
entitled to vote at all elections of the people:

1st. He shall have resided in the State one year immediately preceding the election
at which he offers to vote.

NOTE. Hon. James M. Ritchie, of Ohio, reported this case from the subcommittee,
having same in charge, to the full committee. At his request Mr. Miller was desig-
nated to report case to the House. In doing so the latter has incorporated largely in
this report the exhaustive and able report of Mr. Ritchie.

382 DIGEST OF ELECTION CASES.

2d. He shall have resided in the county, city, or town where he shall offer to vote
at least sixty days immediately preceding the election.

By this same constitution, article 9, section 20 et seq., power was given
the citizens of Saint Louis to frame a charter not inconsistent with any
provision of the said constitution for the government of that city.

Article 8, section 5, and article 9, section 7, of said constitution are
as follows, viz :

ART. 8, SEC. 5. The general assembly shall provide by law for the registration of
all voters in cities and counties having a population of more than 100,000 inhabitants,
and may provide for such registration in cities having a population exceeding '25,000
inhabitants and not exceeding 100,000, but not otherwise.

ART. 9, SEC. 7. The general assembly shall provide by general laws for the organiza-
tion and classification of cities and towns. The number of such classes shall not ex-
ceed four, and the power of each class shall be denned by general laws, so that all such
municipal corporations of the same class shall possess the same powers and be subject-
to the same restrictions. The general assembly shall also make provision by general
law whereby any city, town, or village existing by virtue of any special or local law
may elect to become "subject to and be governed by the general laws relating to such
corporations.

These are all the provisions of the Missouri constitution bearing on
the subject.

In pursuance of section 7, article 9, supra, the general assembly of
Missouri, in 1877, enacted as follows, viz :

SEC. 4380. All cities and towns in this State containing 100,000 inhabitants or more
shall be cities of the first class.

SEC. 4385. Any city or town in this State existing by virtue of the present general
law, or by any local or special law, may elect to become a city of the class to which
its population would entitle it under the provisions of this article, by passing an
ordinance or proposition, and submitting the same to the legal voters of such city or
town at an election to be held for that purpose, not less than twenty nor more than
thirty days after the passage of such ordinance or proposition ; and if a majority of
such voters, voting at such election, shall ratify such ordinance or proposition, the
mayor or chief officer of such city or town shall issue his proclamation declaring the
result of such election, and thereafter such city or town shall, by virtue of such vote,
be incorporated under the provisions of the general law provided for the government
of the class to which such city belongs, which class shall be determined by the last
census taken, whether State or national.

SEC. 4389. Any city of the first class in this State may become a body corporate,
under the provisions of this article, in the manner provided by law, &c.

Then follow the provisions for governing cities of the first class, and
for registration and elections therein.

Saint Louis never elected to accept the provisions of this law, and was
not governed or controlled thereby, nor were its provisions concerning
registration of any force or effect in said city.

There was also another statute, which did apply to Saint Louis, viz :

AN ACT to provide for the exercise of the right of voting by persons who have failed to register.

Be it enacted by the general assembly of the State of Missouri asfolloics :
SECTION 1. In all State, county, and municipal elections hereafter held in any city
of this State having a population of one hundred thousand inhabitants or more, no
person shall be deprived of the right of voting at such election by reason of having
failed to register : Provided, That, in all cities where registration is required by law,
the party offering to vote, but who from any cause has failed to register before he
offers to vote, shall be, on the day of such election, registered by a special registrar
of election, appointed by the judges of election for that purpose at each precinct, as
a qualified voter, in a book to be kept for that purpose ; and the ballot of such voter
shall be received and counted at such election ; and such registrar shall return to the
register of voters of such city the list of such voters so registered within ten days after
such election, provided the said registrars shall be sworn as provided for the recorder
of voters and the books shall contain the written or printed oath as required in the
regular registration books.
Approved March 30, 1877.

SESSINGHAUS VS. FROST. 383

The Constitution of the United States, article 1, section 4, is as fol-
lows, viz :

The times, places, and manner of holding elections for Senators and Representative*
shall be prescribed in each State by the legislature thereof; but the Congress may, at
any time, by law, make or alter such regulations except as to the places of choosing
Senators.

The charter adopted by Saint Louis in 1876, in pursuance of the con-
stitution of Missouri, article 9, sections 20 et seq., provided for registra-
tion. It was, however, never adopted, ratified, or acted upon in any
way by the general assembly of Missouri.

The municipal assembly of Saint Louis in 1878 passed a city ordi-
nance providing for registration in said city, section 11 of which ordi-
nance is as follows, viz :

SEC. 11. The mayor shall appoint a board of revision, consisting of one reputable
citizen from each ward in the city who shall possess the qualifications of a member
of the house of delegates, whose duty it shall be to meet with the recorder of voters,
at his office, twenty days before each general, State, or municipal election, for the pur-
pose of examining the registration, and making aifll noting corrections therein as
may be rendered necessary by their knowledge of errors committed, or by competent
testimony heard before the board ; a majority of said board shall be necessary to do
business, and the mayor shall be ex officio president thereof. They shall strike from
the registration, by a majority vote, names of persons who have removed from the
election district for which they registered, or who have died, and shall note the fact
opposite the name of any person charged with having registered in a wrong name, or
who for any reason is not entitled to registration under the provisions of this ordi
nance, which person shall be challenged by the judges of election when presenting
himself to vote, and rejected unless he satisfy said judges that he was entitled to reg-
ister, and said board shall also place on said books the names of such persons as in
their judgment have been improperly rejected by the recorder of voters. They shall
sit from day to day, not exceeding ten days, until they haye completed their labors,,
and their proceedings shall be printed daily in the paper doing the city printing.
They shall each be allowed the sum of three dollars per day for their services.

This is the only section bearing on the question at issue. It differs
somewhat from both the city charter and the State statute governing
those cities which elected to become cities of the first class.

The foregoing are substantially all the enactments controlling this
case save the United States statutes.

This city ordinance was adopted subsequently to any act of the gen-
eral assembly. It contains forty-odd sections, and prescribed an entire-
scheme of registration and election for Saint Louis, and was the only
law by which registration was had in said city.

These views are supported by Counsellor Bell, of said city, at page-
1814 of Eecord.

On investigation we find that the various so-called sections of the
statutes of Missouri, cited in the report of the minority of this commit-
tee, concerning the application of the election laws of the State, were
placed there by the committee appointed by the general assembly of
Missouri to revise the statutes in 1879, and that the same lack the rat-
ification or approval of that assembly.

The evidence of the following witnesses, who testified for the con-
testant, and which is absolutely uncoutradicted, shows that they, each
and every one of them, were qualified voters under the laws of the
State of Missouri, and entitled to vote at that election ; that each and
every one of them had previous to the election herein complied with all
the provisions of .the registration law, and that they had been by the
proper officer duly registered as legal voters for their respective pre-

384

DIGEST OF ELECTION CASES.

cincts ; that preceding the election they were improperly, wrongfully,
and illegally stricken off the registration list by the board of revision
of the city of Saint Louis ; that on the day of election they each and
every one of them went to their respective and proper polling precincts
in said city and offered to cast their ballots for contestant for Eepresent-
ative, in Congress from said district, but the judges of election, not find-
ing their names on the registration list, would not receive and count
their votes, and their votes never have been counted, viz :

Kecord page.

510. Aerschbeck, Sam.

861. Alvord, Wm. B.
1234. Bailey, Peter

491. Ball, George

615. Bartlett, Geo.

81. Bell, Wm.

750. Bethge, August

462. Betts, Henry

560. Bloss, Jno. F.

863. Boothe, F.

459. Breeder, Casper H.
578. Brown, Ben.

866. Brown, John
918. Bruder, Jno. G.
970. Bush, Eobert
481. Boekeineier, Henry

1008. Cheatam, Ike
932. Clayton, John
608. Coleman, Henry

1595. Coleman, Eobert
452. Corum, Henry C.
626. Cousins, Jno.
359. Cox, Chas.

617. Crawford, Antoine
1029. Cummings, Edw.

437. Cummings, Ed.
833. Davis, Clark
550. Dodd, Willis
1044. Douglass, Thomas
530. Dugles, Geo.

618. Dietring, C. H.
790. Ermantraut, Henry
624. Edwards, John

1043. Emery, Jonathan
629. Fissman, Henry
495. Fogler, Frank
955. Frenniug, Louis
596. Gardner, Woodford
728. Gieseker, F. W.
654. Goodin, Jno.
585. Grassmuck, Peter
652. Green, Cato
450. Green, Chas.

1393. Green, Edw.
447. Green, Silas

460. Hale, Jefferson

Record page.

1669. Hamig, H. F.
974. Harder, Ulrich
453. Hartman, Jno. F.

636. Hawkins, Christian
1125. Hayes, Isaac
1173. Henderson, Tony
1056. Hendricks, Spencer.

941. Henuerla, A. B.

498. Herdler, Carl

493. Hilf, Christ.

895. Horstbrink, Louis

814. Howard, Dinkey

500. Howard, Wesley

680. Howarth, Fred.
r 431. Howell, L. H.
1060. Hull, Morris

743. Johanniugmeyer, Henry

160. Johnson, Alfred
1532. Johnson, Geo.
1165. Johnson, John

633. Johnson, Merritt
1073. Johnson, Pat

987. Johnson, Simeon

631. Jenkins, Chas.

757. Koboldt, Henry

809. Kraemer, C. H.

546. Landwehr, J. H.
1586. Lang, Geo.

599. Larkins, Peter

658. Leeker, J. F.

521. Lewis, Jno.

413. Lincoln, Jas.

842. Lofton, Lewis
1427. McGee, Jno.
1377. Marshall, Henry

609. Martin, Jackson

526. Maschmeier, Geo.
1210. Maze, Daniel

504. Mcllvanie, Geo. E.

745. Meier, Henry
1058. Mestemacher, Chas.

440. Meyer, Henry W.

637. Miller, Wm.
929. Monroe, Jos.
822. Maxey, T.

747. Mueller, Chas. P.

SESSINGHAUS VS. FROST.

385

Record page.

468. McDowell, John

755. Ortrnan, Christ.

556. Osterwich, Christ.

692. Pawley, Wm.

871. Perry,' Bob

919. Pointer, Edmund
1342. Post, Chas.

641. Price, C. A.
1023. Profet, Dan'l
1038. Raining, Win.
1151. Eistelhuber, A.

552. Eoss, Geo.

776. Schalleu, Frank

1149. Schueller, Fred., sr.

1150. Schueller, Fred., jr.
490. Schottgeu, P.

1205. Sawyer, Jas.
482. Seibeltz, Henry
734. Simms, Henry
677. Shelton, Abner

1382. Smith, David
580. Solari, August

1003. Soler, Chas.

1376. Springer, Wm.
817. Stocko, Fred.

1527. Stocktor, Jas. E,
655. Strack, Matt
654. Strader, Beverly
547. Struve, Henry

1166. Talbot, Henry

Record page.

377. Taylor, Edw.

430. Taylor, Jas.

600. Terrel, Wm.

691. Thomas, Chas.

676. Thompson, J. M.

847 and 851. Trebus, Chas.
1839. Turner, Frank

787. Turner, Osborn

444. Tyler, Albert

586. Ulmer, Peter
1154. Vahl, Fred.

605. Volk, Jacob

875. Waschausen, Aug.
1672. Washington, Eobt.

839. Washington, Geo.

852. Washington, Wm.

885. Webster, Dan.
1501. Wesley, Aleck

425. White, Lewis

890. Willard, Dr. Jno.

405. Williams, Anthony

835. Williams, Chas.

733. Williams, Joe
1078. Williams, Thos.
1087. Wilson, Josiah
1184. Winter, Heiurich

943. Winther, Chas. T.

588. Williams, Edw.

992. Zieres, Jno.
Total, 155.

We find further that the board of revision, by whom the above voters
were stricken off the registration list, met on each of nine days imme-
diately preceding the election, the first day only to organize and pass
the following resolution, viz :

Eesolred, That when a member of the board of revision presents a list of persons
found on the list furnished him by the recorder of voters with dead, removed, not
found, vacant house, duplicate, not a citizen, or any other word or phrase to indicate
that the person is not entitled to vote, his name being on the books of the recorder, the
board of revision shall take immediate action on such names and instruct the re-
corder of voters to erase such names from the registered list of voters in his office.

By this resolution that board delegated its exclusive power to each
of its members, and in advance agreed that whatsoever names any
of its members presented to be stricken off, should be stricken off with-
out any knowledge or testimony. And the recorder of voters, who was
ex officio clerk of that board, swears that the business was done as fol-
lows, viz :

The clerk called Ward one ; when the reviser from that ward sent
up a list of names, which was not even read, the clerk merely stating
the number of names on the list, when, by virtue of the above resolution,
and without further action by the board, they were stricken off, no
other member of the board but he from the First ward ever hearing the
names read or knowing what names had been stricken off ; when Ward
two was called, and so on through the whole twenty-eight wards (Record,
H. Mis. 35 25

386 DIGEST OF ELECTION CASES.

page 131). This was also proved by nearly all the members of the
board called by the contestee as witnesses in his behalf. (See Record r
pages 1792, 1824, 1825, and 1844.) It is undisputed. The board sat
from one to two hours each of the eight days, and in that time struck
off over 12,000 names from a registration of about 60,000.

This board was composed of twenty-four Democrats and four Bepub-
licans. The record shows that many of these twenty-eight revisers dele-
gated their duties of purging the registry lists to unauthorized and un-
sworn parties (Kecord, 1786-'7, 1793, 1800, 1836, and 1850) in many in-
stances persons wholly unknown to them, who were sent to them by
the Democratic central committee. (See same pages of the Eecord.) The
fact also appears that the reviser for the Fourth ward of this district,,
that ward in which most of the above disfranchised voters lived, left
his entire work of revision to irresponsible deputies, whose work was
sent in, and the names reported by them were stricken from the list of
voters in the manner above described.

The testimony of one Michael Burke shows that he was one of these
unsworn deputies, and reveals the frauds by which ^Republicans were
intentionally stricken off the lists. He also swears and his evidence is
wholly uncontradicted that there was an understanding and agreement
between all these deputies that they should act together in practicing
these frauds. (See Kecord, page 71 and following.)

It will be borne in mind that the law not only does not recognize these
deputies, but specifically provides that this work of determining the
qualifications of voters should be done by these revisers, sitting as a
court and acting judicially on "actual knowledge" or "competent testi-
mony, and by a majority vote."

The testimony shows that all of the above 155 men were legal and
qualified voters, many of them being old residents, and that they did
all in their power to entitle them to vote.

We hold that their votes should now be counted by the House. The
said voters had done everything the law required of them ; they had
exhausted their remedy ; they had registered and gone to the polls and
offered to vote, bat their names having been stricken off they were not
allowed to vote.

The principle is well established and was adopted by this committee
in the case of Bisbee vs. Fmley (present Congress), that where judges
of election improperly refuse a qualified voter the right to vote, his
vote will be counted here. We submit the reason of that rule will ap-
ply as well to this case, where the voter has done everything in his
power and the primary wrongful act was committed by the registration
officers.

McCrary on Elections, sections 10, 11, and 383, fully sustains this
view in the following language :

A case may occur where a portion of the legal voters have, without their fault and in
spite of due diligence on their part, been denied the privilege of registration. In Biich
a case, if the voter was otherwise qualified and is clearly shown to have performed all
the acts required of him by the law, and to have been denied registration by the
wrongful act of the registering officer, it would seem a very unjust thing to deny him
the right to vote. In elections for State officers, however, under a constitution or
statute which imperatively requires registration as a qualification for voting, it may
be that the voter's only remedy would be found in an action against the registration
officer for damages. (See also sections 11 and 383.)

It will be observed that Judge McCrary, after stating the general
doctrine, says that

In elections for State officers, however, under a constitution or statute which iinper-

SKSSINGHAUS VS. FROST. 387

atively requires registration as a qualification for voting, it may be that the voter's
only remedy would be found in an action against the registration officer.

This refers exclusively to State officers, while the office for which it
is intended to count these votes is not a State office that the United
States Constitution has given this body full control over the question
as to who are its members ; and in the State of Missouri neither the con-
stitution or any statute in force in Saint Louis makes registration an
imperative prerequisite or qualification. (See constitution 1875, here-
tofore cited.)

The old constitution of 1865 made registration a qualification, both in
positive and negative language. (See constitution 1865, article 2, sec-
tion 4 and 18.)

But the constitution of 1875 only requires that to be a voter a man
must be twenty-one years of age, a citizen of the United States, and a
resident of the State for one year.

Neither was there any statute in existence at the time of this election
which applied to Saint Louis, which, either in express terms or by im-
plication, made registration an imperative prerequisite or qualification.

The charter of ordinances of the city of Saint Louis, adopted by its
citizens, as shown above, provided for a system of registration hereto-
fore mentioned, but it nowhere in express terms, in enumerati J& the qual-
ifications of voters, makes registration a prerequisite or qualification for
voting, and had it done so we hold that it would have been a violation
of that part of the constitution which provides for the qualifications of
voters, in this, that it would have made an additional qualification
thereto.

It will be observed that as Saint Louis never, directly or by impli-
cation, elected to be governed by the statute providing for the govern-
ment of cities of the first class, the provisions therein concerning regis-
tration do not apply to, nor do they control, said city.

The ordinance, instead of the charter of the city, being followed in
the matter of the board of revision, it having been appointed twenty
instead of thirty days before the election, we find that neither the
charter nor statute had any binding effect on said board.

The Constitution of the United States having declared that the leg-
islatures of the several States shall provide for choosing members of
Congress, and the constitution of Missouri having authorized the gen-
eral assembly, and that alone, to enact a registration law, we hold that
the above ordinance has no binding force or effect, and is invalid.

We therefore rely upon the language of McCrary, section 11, that

In the absence of any positive law making registration imperative as a qualification
for voting, it is a very plain proposition that the wrongful refusal of a registering
officer to register a legal voter who has complied with the law and applies for regis-
tration ought not to disfranchise such voter. The offer to register in such a case is
equivalent to registration. This would be held to be the law upon the well-settled
principle that the offer to perform an ct which depends for its performance upon the
action of another person, who wrongfully refuses to act, is equivalent to its perform-
ance.

But conceding (which we do not in this case) that the city ordinance
relative to registration was constitutionally and legally enacted, and
its provisions applicable to this election, we contend that these 155
votes should still be counted, and for the following reasons :

The oath prescribed for, and taken by, the judges of election pre-
cluded them from hearing or determining the case of any voter whose
name is not on their list ; therefore, as to that class of voters, they are
not really judges of election. The law in that case has provided another
set of judges, whose duty it is to hear competent testimony concerning

38S DIGEST OF ELECTION CASES.

the case of each and every man whose name is suggested by any one
should be stricken off, and after judicially hearing the case, they shall,
by a majority vote, determine whether that man is a voter or not.

So we say that if the judges of election could not receive the votes of
these men they are not the judges of their qualifications to vote in any
sense, their place for that purpose being filled by the board of revision.
We hence conclude that if the only officers recognized by the city charter
who had a right to judge of the qualifications of these 155 men have
improperly, wrongfully, and fraudulently denied them the right to vote
that this House should remedy that wrong and couut their votes for
him whose name was on their ballots.

Furthermore, these votes should be counted on another ground, fol-
lowing a well-established principle of law.

The proof in this case shows that the board of revision by whom the
above voters were disfranchised acted at the outset and throughout
their entire proceedings in absolute violation of not only the spirit but the
letter of the law which gave them authority. The ordinance explicitly
says that this board shall meet

For the purpose of examining the registration and making and noting corrections
therein as may be rendered necessary by either their knowledge of errors committed
or by competent testimony heard before the board, a majority of said board shall be
necessary to do business.

By a resolution adopted at the beginning (heretofore cited) they de-
clared they would neither hear testimony nor act upon the knowledge of
the board. Thereafter names of voters were stricken off the list with-
out even being read to the board, and merely upon the recommenda-
tion of an individual member, who, in many cases, as the proof shows,
adopted without question, knowledge, or examination the reports of his
unsworn and unauthorized deputies.

When it is borne in mind that no actual notice was given to the voter
thus stricken from the list, and that, even if he had such notice, there
existed no remedy or law by which he could be reinstated, the necessity
of holding this board to a strict execution of its powers will be ap-
parent.

It will be observed that the ordinance conferred upon the board of
revision the power to examine and revise the registration list prepared
by the recorder of voters, and making and noting corrections therein,
to correct his errors or omissions, but the law no where empowered them
to correct or revise their own.

Now, it is a well-settled doctrine of law that as to courts not of record
and other bodies having judicial functions no presumptions arise as to
jurisdiction or the regularity of their proceedings, and that any judg-
ment rendered by such court or body not in strict conformity with the
law is void. (See Freeman on Judgments.)

This board of revision, as shown by the record, acted from the begin-
ning to the end in utter disregard and violation of the law.

This ordinance gives the board power to strike from the registry lists
by a majority vote, and either on the knowledge of the board officially
or by competent testimony heard before the board, the names of those
only " who have removed from the election district for which they reg-
istered, or who have died." The resolution divested the board of all
its functions ; it gave each member individually the right to not only
strike off the dead and removed, but it gave him the right to strike off
those not found; it gave him the right to write " vacant house" against
a man's name, and that man was disfranchised; it gave him the
right to strike off duplicate names ; it gave him the right to strike

SESSINGHAUS VS. FROST. 389

off all who were in his judgment not citizens ; and, lastly, it gave him
the right to strike off any one whom he thought, for any reason, ought
not to vote and to do all this without any testimony, without any
knowledge as to whether it was right, and without any notice to
him whose name he struck off. And then the board beforehand sanc-
tioned all this ; told each reviser to do whatever he would ; it, as a board,
would stamp it as the act of the board.

It will be seen by this ordinance that this board, besides striking off
the names of those who had removed out of the precinct where they
lived when they registered, and the names of those who had died, were
required "to note the fact opposite the name of any person charged
with having registered in a wrong name, or who, for any reason, is not
entitled to registration under the provisions of this ordinance, which^
person shall be challenged by the judges of ^election when presenting*
himself to vote, and rejected unless he satisfy said judges that he was
entitled to register." This board was precluded from striking off the
names of these persons. Its only duty was to make note against them,
and then the judges of election were to judicially examine into the quali-
fications of these voters. So the board not only violated and defied the
law, but, by its acts, it prevented the judges of election from examin-
ing and determining the questions which the ordinance explicitly re-
ferred to them. If this board had been a court of general jurisdiction,
even then its acts would have been absolutely void because of its failure
to proceed in accordance with law.

We therefore hold that the action of this board in striking off the
names of the above voters was illegal and absolutely void and of the
same effect as if done by any unauthorized party.

Again, the proof shows that the action of the board of revision from
its inception operated as a fraud upon all who were improperly stricken
off by them, and that there was actual fraud on the part of some of
those to whom was improperly delegated the duties and functions of
the whole board, which fraud resulted in striking off and disfranchise-
ment of these voters.

This opportunity for fraud is evidenced by the illegal resolution
adopted, the manner in which the board did its work, and by the em-
ployment of unauthorized and unsworn deputies.

The actual fraud is shown in the uncontradicted testimony of Michael
Burke, one of the above deputies in the Fourth ward of this Congres-
sional district, who imblushingly tells how he struck off of the list Re-
publican voters ; of his understanding that he was hired for that purpose,
and agreement with other deputies to do the same work in their wards;
in the fact that of the 12,000 names stricken off the contestee after
keeping in a conspicuous place in the leading Democratic paper of Sf.
Louis an advertisement for all Democrats who had been wrongfully
stricken from the registration list to appear and give their testimony
only obtained three who were qualified voters ; in the fact that in nu-
merous instances, as shown by the testimony, some members of a family
were stricken -off said list and members of the same family left on, and
in each of such instances the Republicans were stricken off and the
Democrats left on ; in the fact that five mouths after the election herein,
as is shown by the testimony, another election was held in Saint Louis,
before which a presumably fair registration was had, and at which every
Republican candidate was elected by a very large majority, whereas at
this election the Democratic candidates for President and governor each
received a majority.

390 DIGEST OF ELECTION CASES.

We therefore hold that, as fraud vitiates all things, the frauds above
enumerated vitiated the action of said board of revisers.

For each and all these reasons, and because it seems just and right
that where a legally qualified voter has done all that the law requires
of him in order to vote, but he has been deprived of the privilege by
the default, neglect, or fraud of any officer of election, his vote should
be counted, and because it seems to us that these voters were, in the
eyes of the law, on the list of voters furnished the judges of election
(having been stricken off by illegality and fraud), we hold that these
155 votes should now be counted for contestant.

II.

The evidence shows that the following were legal voters of the State
of Missouri and city of Saint Louis, and entitled to vote at the election
in the third Congressional district of Missouri on the 2d day of Novem-
ber, 188u ; that they had complied with the registration law of said city,
having previous to the election registered their names before the proper
officer; that on the day of election they offered their ballots at their re-
spective and proper polling precincts in said city, and said ballots being
for contestant for Representative in Congress from the third Congres-
sional district of Missouri; that their names were, each and every one
of them, found on the poll-list at the precincts where they offered to
vote, but for various trivial and insignificant reasons, such as, for in-
stance, the misspelling of names or the incorrectness of numbers, and,
in some instances, for no reasons whatever, the judges refused to re-
ceive their votes, and they were not received or counted, viz :

Record page. Record page.

420. Baker, Lee 1703. Inderman, Henry

506. Bierlin, John 644. Lammers, Herman

834. Buttram, Louis 584. Lott, S. W.

1041. Caeser, Philip 663. Merkel, John

1032. Cheatham, William 661. Moppel, A. F.

761. Clark, Calvin 573. Moore, London

903. Fields, John 739. Page, Moses

518. Garrett, John 763. Price, John

816. Geiger, George H. 924. Reed, William

976. Gray, Samuel 765. Eohue, Herman

648. Hatz, Sebastear 1213. Scott, J. E.

848. Heitert, H. C. 497. Small, John, jr.

1240. Henderson, Isaac 554. Spriugmyer, H.

753. Hensieck, Henry 791. Stoltz, Matthew

591. Hohnnan, Fred. 983. Striker, William

564. Howard, Henry 915. Twellman, H.

771. Humes, Ben. ' 601. Wischmeyer, C. H.
570. Hyde, Jacob Total, 35.

We therefore conclude that these thirty-five votes should be counted
for contestant, as the proof shows indisputably that the judges of elec-
tion improperly refused to receive and count them.

III.

The evidence shows that at the date of election herein the following
were legal and qualified voters of the State of Missouri, city of Saint

SESSINGHAUS VS. FROST. 391

Louis, and third Congressional district ; that they had never registered
and voted in the city of Saint Louis ; that on the day of election they
were registered at the polls of their respective and proper precincts by
the registering officer duly appointed for that purpose ; that they offered
their ballots for contestant for Eepresentative in Congress from the
third Congressional district of Missouri, but the judges refused to re-
ceive and count their votes, and they never have been counted, viz :

Record page. Record page.

485. Eggerman, Chas. 507. Mohr, Wm.
489. Hagensiecker, Henry 497. Springmeyer, G.
864. Braun, T. J. 1133. Stein, John, jr.

1203. Kendall, Alfred Total, 8.

434. Koester, C. H.

And for the reasons assigned above, we hold that these ballots should
now be counted for contestant.

IV.

The evidence shows that the following were at the date of the elec-
tion herein legal and qualified voters of the State of Missouri and city
of Saint Louis, and said third Congressional district ; that they never
bad registered or voted in the city of Saint Louis ; that on the day of
election they offered at their respective and proper polling precincts,
and before the officers appointed to register voters, and receive and
-count the votes, to register and vote for contestant for Eepresentative
in Congress for the third Congressional district of Missouri, but the
officers whose duty it was failed and refused to. register them or to re-
ceive and count their ballots, and their ballots were not received and
counted by thejudges of election, and they never have been counted :

Record page. Record page.
516. Arbuckle, Lazarus 820. Godejohu, F. W.

1027. Atkins, Alex. 487. Johnson, Joseph

1090. Battell, Lemuel 1281. Gates, Thos.

767. Beck, Chas. 465. Greenlow, Chas.

474. Belleville, John 1588. Haines, Wm.
888. Bell, Dempsey 873. Barriss, George

927. Buckner, James 1054. Harriss, Leighton

646. Budehann, Henry 1046. Hawkins, Dan'l

1237. Burks, Wm. 1017. Holmes, Henry

486. Brown, Charles 868. Johnson, Edward
2671. Caldwell, Edward 907. Johnson, James

800. Carter, Harris. 1529. Johnson, Jos. E.

1237 and 2676. Clark, Jerry 1506. Johnson, Jos. H.
1135. Combs, Dave 807. Johnson, Eobert

1037. Cross, Edward 427. Jones, J. J.

636. Cummins, Henry 1386. Jones, Joseph
1390. Davis, Charles 777. Jackson, Edward

1282. Day, Wallace 1212. Jackson, Samuel
1111. Dillard, James 971. Jay, James

523. Duncan, Jackson 696. Johnson, Charles

1257. Edwards, Jeff. 553. Krceger, Henry

1159. Evans, Henry 1049. Lee, Lewis

808. Franklin, Henry 432. Link, Frederick

392 DIGEST OF ELECTION CASES.

Eecord page. Record page.

1138. Lyons, Jerry 1646. Sims, Charles

844. Mast, Constantino 1067. Smith, John

1379. McCoy, Samuel 893. Smith, Joseph

1097. McDavis, Butler 1252. Taylor, Clark

443. Mitchell, James 720. Taylor, Eichard

781. Mitchell, Geo. 910. Taylor, Zachery

1075. Mitchell, Harrison 1079. Terrell, Henry

543. Mueller, Gustave 1085. Thomas, George

909. Peterson, Beverly 1018. Thomas, George

542. Pfeifer, Adolph 980. Thomas, Monroe

1086. Polk, James K. 1136. Thomas, Nelson

828. Powell, Isaac 877. Turner, Joseph

865. Price, Bob 1180. Vogt, Christ.

1081. Eiley, Peter 1013. Wallace, Wm. A.

1062. Eobinson, Wm. 1705. West, William

1163. Eobinsou, Sam. 1279. Wilkeson, Thos.

968. Eandolph, Alfred 1276. Gardener, Chas.

534. Bedding, T. A. 699. Williams, Wni.

497. Scott, Sam. 513. Williams, Wm.

966. Scott, Sam. Total, 86.

1094. Simpson, Billiard

By virtue of the law heretofore referred to, providing for registration
on election day, and upon the same ground as leads us to count the
votes of those wrongfully stricken from the list, these 86 men should
have been registered and permitted to vote ; and because the officers
whose duty it was to pass upon their qualifications wrongfully and ille-
gally denied them their right of suffrage, and because the said voters
had done all that the law required of them, they should now have their
votes counted.

At pages 612, 668, 870, 674, 540, 759, 783, 620, 1157, 1228 of the Eec-
ord will be found the evidence showing that there were 23 ballots cast
for contestant, but not counted, having this caption, viz, " Chronicle
Selected Ticket," a ticket made up of names of persons on both the
Eepublican and Democratic regular tickets. It was not in the language
of the law (see page 1681) a ticket designed to deceive the voter. It
showed plainly what it was, viz, a ticket selected by the Chronicle, an
independent daily newspaper published in Saint Louis (see pp. 945-'6).
This ticket had contestant's name on it for Congress from this district,.
and was, in some of the precincts, thrown out by the judges and not
counted.

The supreme court of Missouri, in the case of Turner vs. Drake (71
Mo., 285), construed this statute as follows:

This is a proceeding instituted in the connty court of Carroll County, contesting
the election of defendant as recorder of deeds of said county. The county court
quashed the notice of contest on the motion of defendant, from which action plaint-
iff appealed to the circuit court, where upon a trial denoro judgment was rendered for
defendant, the notice of contest quashed, and the proceedings dismissed, from which
plaintiff has appealed to this court.

The only ground for contest alleged in the notice is that all the ballots cast for de-
fendant, at the election which was held on the 5th day of November, 1878, were-
fraudulent and void, because the caption of said ballot contained the words, "Re-
publican, Independent, Greenback." The following is the form of the ballot as to-
State and county officers : "Republican, Independent, Greenback; supreme judge,.
Alexander F. Denney," &c.

SESSINGHAUS VS. FROST. 393

The claim that the ballots cast for defendant, of which the foregoing is a type, were
fraudulent and void, is based upon section 1, acts of 1875, p. 15, which is as follows t

" Each ballot may bear a plain written or printed caption thereon, composed of not
more than three words, expressing its political character, but on all such ballots the
said caption or head-lines shall not in any manner be designed to mislead the voter
as to the name or names thereunder. Any ballot not conforming to the provisions of
this act shall be considered fraudulent, and the same shall not be counted."

We cannot, from the mere face of the ballot, declare, as a matter of law, that the
words used in the caption were, in any manner, designed to mislead the voter as to-
the name or names thereunder. The words employed would indicate to the voter that
he would find among those to be voted for Republicans, Greenbackers, and Independ-
ents, or persons who were candidates without party indorsement. We think the evi-
dent purpose of the legislature in the above enactment was to prevent one political
party from using, as a caption to its ballots, the name of any other political party from
that mentioned in the caption. A ballot with a caption using the words "The Repub-
lican Ticket," which contains only the names of persons who represented the Demo-
cratic ticket, would fall within the class of ballots inteedicted by the law.

The design of the statute is to prohibit the use of any words in the caption to a
ballot which do not truly indicate the political character or party affiliation of the
persons to be voted for, and any ballot which represents by the words nsed in the-
caption that it is the ticket of one party, when in truth and in fact the persons whose
names are contained in the body of the ballot repreSfent another and different party r
is under the statute fraudulent and void.

Under this and similar decisions, it seems to us there can be no doubt
that contestant is entitled to have counted for him these 23 votes.

VI.

Evidence on pages 952 and 897 of the Kecord, which is uncontradicted r
will be found, showing that 10 votes cast for contestant were thrown
out and not counted by the judges, merely upon the ground that the
contestant's given name was not on the ballots. The proof shows that
no other man by the name of Sessiughaus was a candidate at that elec-
tion in that district for any office.

Hence we follow the unbroken chain of authorities as cited by Mc-
Crary, and hold that these 10 votes should be counted for contestant.

VII.

At one precinct in the said district it appears from the evidence (page
612, of Kecord), there were cast by legally qualified voters 15 ballots-
having the caption " Greenback Labor Ticket," but with the nominee
of that party for Congress scratched out in pencil and the name of
contestant inserted, none of which ballots were counted by the judges
of election.

The evidence is wholly uucontradicted. We think the above votes
should be counted for contestant, the intention of the voters being plain
and the ballots being legal.

VIII.

In precinct 148 the testimony shows that the board organized under
the law to foot up returns made by the judges of election counted for
contestant 141 and contestee 58, that appearing to be the figures on the
poll-book of that precinct.

The undisputed positive testimony of a majority of the officers of
election at that precinct is that contestant received 149 votes and con-
testee 52, and that those were the figures certified to and returned by
the judges. The contestee called no witnesses to disprove this testi-
mony, and if it had been false it could easily have been shown. We

394 DIGEST OF ELECTION CASES.

therefore conclude either that a mistake was made or the figures were
intentionally changed after leaving the hands of the judges, and that in
-either event it should be corrected. This adds 8 votes to contestant
and takes 6 from contestee. (See Kecord, pages 1748, 674-'o, 823, and
68-'9.)

IX.

There was also voted at that election a ticket headed " Hancock In-
dependent Ticket," upon which the name of contestee was printed but
scratched out, and contestant's name inserted in pencil. This ticket
was thrown out by the judges. (See pages 779 and 791.) It seems
plain that it should be counted for contestant.

At precinct number 74 a ballot was cast (as shown by the evidence,
page 985) which was made up of the tickets of the two parties, cut in
the middle and pasted together, thus making a complete ticket with
only one name thereon for each office. It had on it the name of con-
testant for Congress. This ballot was thrown out and not counted by
the judges. We think it should be counted for him. The voter evi-
dently knew what he was about, and it was his privilege to vote for
whom he pleased.

XI.

As to precinct No. 39 the contestant urged persistently, and intro-
duced much testimony to support his position, that this precinct should
be thrown out ; but we are constrained to differ with him. We find
that the evidence of intimidation hardly comes up to the standard pro-
vided by the precedents cited by McCrary, and hence we conclude that
it must stand. We find, however, that twenty men (all colored) who
were qualified and legal voters, and duly registered, and who had done
all that the law required of them, who were entitled to vote at that
poll, went there and offered to vote, but were refused for various trivial
reasons, many of them being frightened by abuse and driven from the
poll.

The following is a list of the above all of whom offered to vote for
contestant :

Record page. Record page.

368. Adams, Wm. 177. Harris, Walter.

213. Ashby, Sanford 255. Lee, Wilson

259. Bailey, Joseph 262. Leland, Geo.

183. Batten, Alex. 175. Mack, Stuart

209. Bell, Joseph 372. Meredith, Henry

264. Bingham, S. S. 158. Eollins, Cain

284. Brown, John 202. Smith, John

308. Brown, Edward 360. Thomas, Ben.

226. Donan, Wm. 367. Williams, Lewis

356. Foster, Chas. 139. Windom, Tom
Total, 20.

We submit that the above should be counted for contestant.

SESSINGHAUS VS. FROST. 395

XII.

It is admitted by contestee, and the proof is positive and uncontra-
dicted, that a minor, Louis Hain, cast his vote for contestee, and that it
was so counted. We therefore take one vote from contestee.( See Kec-
ord, pages 1232 and 1754.)

XIII.

As to the charge made by the contestee that the testimony had been
mutilated by counsel for contestant, we say that there is not the slight-
est ground for the allegation. (See the testimony of the notary who
took the whole testimony in the case. He was a stenographer as well
as a notary.)

By Mr. MILLER :

Q. How long have von been a shorthand writer ? A. I began the study of short-
hand in the fall of 1868. I wrote short-hand for the Saint Louis Mutual Life Insur-
ance Company from 1872, continuing from that time dh till I got into the business of
reporting.

Q. Before you forwarded the long-hand notes of this testimony to Washington, did
you compare each sheet of it, as forwarded, with your original stenographic notes T
A. Yes, sir; every sheet.

Q. After you transcribed the short-hand notes of the testimony of contestant into
long-hand, was it out of your possession and in the possession of Mr. Metcalfe for re-
vision? A. I will have to explain that, for the simple reason that I did not write
them. My agent, of course, took the notes from me and wrote them out. But after
the transcript came back into my hands, and after I made the examination from my
notes, page after page, signed and sealed each day, they never again left my hands
for one moment until they got into the House.

Q. That is the transcript? A. The transcript of my short-hand notes taken in the
case. ' $

Q. After the transcript had been made by you or your agents, you permitted it to
go into the hands of Mr. Metcalfe, for examination ? A. Yes, sir.

Q. Before it went out of your hand and into Mr. Metcalfe's had yon verified the
transcript with your original notes? A. No, sir ; I had not even opened the package.

Q. Much of the transcript had been made by clerks working under you? A. Yes,
sir.

Q. In what manner and by whom were your short-hand notes transcribed into long-
hand ? A. At the close of every session every day's session I would have my clerks
waiting for me in my office, and would give the first one a half hour's dictation from
my short-hand notes. At the close of his half hour I would make a check of my notes,
giving the name of the clerk next following. Then the next clerk would take his half
hour of that same day's proceedings, and so on until the full number of clerks were
at work. There were, I think, some eveuings six or eight. We worked frequently
till midnight, until completing the testimony of that day nntil it was all dictated.
They took it in short-hand from my dictation from my notes. Then they took it to
their residences, transcribed it at their leisure, and brought it back to my office.
There it passed into the charge of one of my brothers, who was instructed what to do
with these different part*. He would take the first half hour, the second half hour, the
third half hour, and so on till the close of all the witnesses of that day, place them
together, number the pages, and tie the parcels up separately, of that day's proceed-
ings, and mark it on the outside. And so it went on through the entire case.

Q. State whether the original short-hand notes taken by you were ever out of your
possession. A. No, sir. Any short-hand man knows what that means.

Q. (Interrupting.) When they came back .to yon from Mr. Metcalfe, state whether
or not any changes, or suggestions, were marked on any of them. A. There were
pencil memorandums on some of them.

Q. State whether or not you adopted any of the suggestions contained in those pen-
cil memorandums. A. I adopted them in this way : There were blanks in those
crude transcripts as they were brought back by my clerks, brought about by their in-
ability to read their notes. Sometimes there were whole paragraphs left out. Mr.
Metcalfe would mark in his suggestions, this name here, this there ; and, of course,
when I came to the corrections when 1 got these sheets back and made my correc-
tion, in reading my notes where my notes tallied with Mr. Metcalfe's suggestions my
notes prevailed no, I don't mean that they were exactly alike, and I inserted them,
but not otherwise.

396 DIGEST OF ELECTION CASES.

Q. State whether or not the testimony had been attested by you at the time it
passed into the hands of Mr. Metcalfe. A. It was not. It was neither signed nor
sealed. It had never been in my possessiou to look it over for one half minute. It
passed out of the hands of my clerks into the hands of my brother. After all this
was done, and it was received back, I made my corrections. It then went into the
box, signed and sealed went on to the House of Representatives. It was never seen
by anybody.

Q. State' whether or not the testimony, as finally forwarded to the House by you,
corresponded with the original stenographic notes of the testimony as taken from the
witnesses. A. It did.

Q. When did you attest the transcripts? A. I attested them about the last day be-
fore I sent them. I spent one whole day at that testimony. I allowed that to be the
very last thing.

We think this testimony absolutely disposes of this charge.

RECAPITULATION.

Vote returned for contestant 9, 290

Vote returned for coutestee 9, 487

Add to contestant those improperly stricken off : 155

Add to contestant those on poll-book who were refused by judges 35

Add to contestant those registered at polls, but votes refused by judges.

Add to contestant those who offered to register and were refused 86

Add to contestant "Chronicle tickets" thrown out 23

Add to contestant votes cast for " Sessiughaus" thrown out 10

Add to contestant Greenback-Labor tickets thrown out 15

Add to contestant 8 votes by reason of mistake at precinct No. 148 8

Deduct from contestee 6 votes by reason of said mistake (>

Add to contestant Hancock Independent ticket thrown out... 1

Add to contestant pasted ballot thrown out 1

9, 632 9, 481

Add to contestant votes offered and refused at precinct No. 39 20

Deduct from contestee minor's vote. . 1

9,652 9,480
Majority for contestant, 172.

We therefore recommend the adoption of the following resolutions :

I. Resolved, That E. Graham Frost was not elected as a Representa-
tive to the Forty-seventh Congress of the United States from the third
Congressional district of Missouri, and is not entitled to occupy a seat
in this House as such.

II. Resolved, That Gustavus Sessinghaus was duly elected as a Repre-
sentative from the third Congressional district of Missouri to the Forty-
seventh Congress of the United States, and is entitled to his seat as
such.

VIEWS OF MR. A. A. EANNET,
AS EXPRESSED IN COMMITTEE.

At the request of the member of the committee reporting this case r
Mr. Eanney furnished him with a copy of his views submitted to the full
committee, and which governed him in voting in the committee to award
the seat to Mr. Sessinghaus. They state the law applicable to this case
so succinctly that we append them:

I have examined, with as much care as able, both the report of the
subcommittee and the arguments made by the respective counsel upon
the special legal question ordered by the committee to be reargued.

SESSINGHAUS VS. FROST. 397

Knowing that the subcommittee has examined the questions of fact
with great thoroughness and care, E am disposed to adopt their conclu-
sions upon them. I have, however, examined the evidence and heard
the arguments upon the material issues of fact so far as to satisfy myself
of the justice of those conclusions. It appears to me that aside from,
the questions of law urged as to the validity of the city ordinances re-
lating to registration of electors, and on the assumption that they are
authorized and valid under the Constitution of the United States and the
constitution and laws of the State of Missouri, that the conduct of the
official board of the city intrusted with the duty of revising the regis-
tration list were guilty of bad faith and of gross negligence at least,
amounting to fraud, and even of actual fraud, in striking off most if
not all of the names in question, who were thereby deprived of the
privilege of casting votes for contestant, as they were ready and offered
to do. It was such as to vitiate their whole action in that regard. And
I therefore believe that the votes of all electors whose names were thus
stricken off, and who appeared and offered to yote for contestant, should
be counted for him.

Had the board acted fairly and impartially, and only erred in the ex-
ercise of an honest judgment, I should not be willing to go behind the
registration list as prepared and left by them. The authority to strike
off names already registered is limited any way to those who had died
or removed.

In the view taken upon the point stated, it is unnecessary to go into
the legal questions argued and referred to. I should ordinarily hesitate
long, and deliberate with care, lest I might be mistaken, before I could
decide against the validity of the city ordinances in question and under
which the board of registration seem to have acted, and which have
been apparently in force and acted upon in the city and State so long.
But the question is raised and argued on both sides with great ability.
And I am forced to the conclusion that the acts of the board in striking
off the names of the parties in question was unauthorized, illegal, and
void ; that under the Constitution of the United States, article 1, sec-
tion 4, the State legislature alone had power to prescribe the manner
of holding elections, subject to alteration and regulations made by
Congress. That this power includes the whole machinery of elections,
registration laws, &c.. is too well settled to require argument.

I am unable to find any act of the legislature of Missouri which pre-
scribes registration as a qualification or regulation, and which was in
force at the time in question and applicable to the city of Saint Louis.
Apparently the legislature recognized this as the state of the law, and
accordingly, as appears in the argument, passed an act to remedy the
defect and provide for it in the year 1881. The charter of the city
of Saint Louis must be confined in its provisions to matters municipal,
and it would be a great stretch of language and principles of law to
hold that it extended beyond that and embraced authority to regulate
the manner of holding elections in matters, of State and Federal offi-
cers, so the city authorities could establish registration laws and pre-
scribe the qualifications of voters a*id limit the right of exercising the
elective franchise. It is more than doubtful whether the legislature,
which is alone invested with authority of this kind, could thus delegate
it any way. I do not propose to go into a more minute and elaborate
discussion of the point. My conclusion is that contestant was elected.

398 DIGEST OF ELECTION CASES.

Mr. MILLER, from the Committee on Elections, submits the following

SUPPLEMENTARY REPORT
IN THE ELECTION CASE OF SESSINGHAUS vs. FROST :

In reporting the views of Mr. Ranney, as expressed in committee,,
there were certain errors in the statement of them. They, as ap-
pended to the report made, are hereby corrected so as to read as fol-
lows, viz :

YEEWS OF ME. A. A. RANNEY, AS EXPRESSED IN COMMITTEE.

[At the request of the member of the committee reporting this case,
Mr. Eanney furnished him with a copy of his views submitted to the
full committee, and which governed him in voting in the committee to
award the seat to Mr. Sessinghaus. They state the law applicable to
this case so succinctly that we append them :]

Knowing that the subcommittee has examined the questions of fact
with great thoroughness and care, I am disposed to adopt their conclu-
sions upon them. I have, however, examined the evidence and heard
the arguments upon the material issues of fact so far as to satisfy myself
of the justice of those conclusions. It appears to me, aside from the
questions of law involved, that the official board intrusted with the
duty of revising the registration lists were guilty of fraud, or a viola-
tion of duty equivalent to fraud in its operation, in the action takeu y
and that their deputies and agents, for whose conduct they were re-
sponsible, practiced actual fraud, and that this vitiates what was done
in the premises in striking off the names of persons previously regis-
tered and who were still alive and had not removed.

Had the board acted fairly and impartially, and only erred in the ex-
ercise of an honest judgment and under competent authority, I should
not be willing to go behind the registration list as revised and left by
them.

In the view taken upon the point of law stated, it is unnecessary
to go into the legal questions argued and referred to. I should ordina-
rily hesitate long and deliberate with care, lest I might be mistaken,,
before I could decide against the validity of the city ordinances in ques-
tion and under which the board of registration seem to have acted, and
which have been apparently in force and acted upon in the city and
State so long. But the question is raised and has been argued on both
sides with great ability. And I am forced to the conclusion that the
action of the board in striking off the names of the parties in question
was unauthorized, illegal, and void; that under the Constitution of the
United States, article 1, section 4, te State legislature alone had power
to prescribe the manner of holding elections, subject to alteration and
regulations made by Congress. That this power includes the whole
machinery of elections, registration laws, &c., is too well settled to re-
quire argument.

SESSINGHAUS VS. FROST. 399

Apparently, the legislature recognized this as the state of the law, and
accordingly, as appears in the argument, passed an act to remedy the
defect and provide for it in the year 1881. The charter of the city of
Saint Louis must be confined in its provisions to matters municipal,,
and it cannot be held to extend beyond that. It is more than doubtful
whether the legislature, which is alone invested with authority of thia
kind, could thus delegate it any way.

It would seem, in any event, that the authority to strike off name
already registered was limited to those persons who had either died or
removed. But the board went beyond this, and did not proceed accord-
ing to law and by fair and legal means to ascertain and determine what
was intrusted to them.

Mr. MOULTON, from the Committee on Elections, submitted the follow-
ing as the

VIEWS OF THE MINORITY:
I.

The first question presented by the record in this cause is a motion to>
suppress the depositions taken for contestant.

The motion and the affidavits will be found on pages 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the Record, and are printed
and attached to this report as an addenda.

This motion was before the full committee in the month of January,.
1882, and as the testimony was not then in print the motion was passed
upon "without prejudice," leaving the question to be investigated and
decided after the depositions and all papers pertaining to the motion
to suppress should be printed.

The gist of the motion is stated in the fourth ground, which is as fol-
lows (page 13) :

IV. That all of said depositions since the taking thereof have been withdrawn
from the care of the notary by one of the counsel for contestant, and were in hia
office part for many days and part for many weeks, and were by him mutilated,
changed, and altered.

It is quite clear that the law is scrupulously particular in demanding
that the spotless integrity of depositions shall be preserved. It is-
sensitive to the highest degree in considering a complaint such as we
find here. Even in mere matters of form it demands the most exact
compliance with such formalities as the various statutes may require.

We cite a few cases in which motions to suppress depositions were
sustained where mere formal rules were disobeyed :

2. Washington Circuit Court Report, p. 356 : " A commission which had been exe-
cuted and returned was set aside because it had been opened by one of the officers
of the government before it came into tho hands of the clerk." (United States vs*
Price's Administrator.)

Shankwiker r. A. Reading (4 McLean's Reports, p. 240) : "The law requires the
deposition taken under act of Congress to be retained by the officer until he deliver the
same into coui#, or shall, together with a certificate of the reasons for taking it," &c.

Read r. Thompson (8 Cranch, 70 J. Story) : "Independently of all other grounds,
the court are of the opinion that the fact of the depositions not having been opened
in court is a fatal objection."

1 Brown's Admiralty Reports, p. 66: "Though a deposition be taken under a stip-
ulation, waiving all objections as to the form and manner of taking, it must still be
returned to court in all respects as required by law.

400 DIGEST OF ELECTION CASES.

The charge of the motion, however, goes not only to form, but to sub-
stance, and claims that the worst of bad faith was exhibited by the at-
torney of the party in whose interest the depositions were taken. The
court in Beverly vs. Burke (14 Georgia, 70), says :

In deciding as we do we establish no new rule. We hold that the case presented
to us falls within a rule already well settled, and that rule simply is that there must
be no circumstances of unfair advantage obtained by one party over the other in hav-
ing testimony taken by depositions. * * * Many written cases may be found in
which it has' been held that such depositions should always be taken in good faith.
I content myself with referring to but one. In Beau rs. Quiiiby, 5 New Hampshire, 98,
the court says, " The invariable rule by which this court is governed in the admission of
depositions is not to receive any which have not been taken fairly and with the utmost
good faith.

It appears from the affidavits in the Kecord (pages 13 and 15) that
counsel for contestee having heard that one of the attorneys for con-
testant had obtained and manipulated the depositions resolved to ask
him if the information was true that he had obtained the depositions
from the notary.

The answer of the attorney was, " Oh, no ; I did not have the testi-
mony ; I had only my depositions of one day, and that was the day the
city ordinances were introduced ; I wanted to see if they were reported
correctly."

The question that was asked was by one who had the right to ask
it, and it demanded a full and fair answer. The good faith required in
the taking of depositions demanded even more than this.

Papers of such importance should never leave the custody of the of-
ficer without the full knowledge and consent of both parties.

Here not only was there no such consent given by counsel for con-
testee. but he had not even the slightest intimation that the notary had
parted with the depositions. Both the notary and the attorney to whom
he gave the depositions carefully concealed from him all information as
to the truth of the facts, although in response to the direct inquiry of
counsel for coutestee, pages 13 and 14, the attorney made answer, " Oh,
no ; I did not have the testimony ; I had only my depositions of one
-day, &c., yet on pages 15 and 16 we find these letters.

EXHIBIT A.

ST. Louis, Aug. 4, 1881.
FRANK KRAFT, Esq., or HIS BROTHER :

I have just returned from the North, and want more manuscript to work up. I
return by messenger the testimony taken Feb. 1st, 2d, and 3d.

Please* send me by bearer (or, if you are not at home, by messenger, as soon as pos-
sible) the testimony for six or eight days following the 3d of Feb. I don't know what
dates they may be, for a Sunday probably intervenes. I guess you had better send
me 8 days' testimony, for I want to work pretty steady on it now.
Yours, truly,

L. S. METCALFE, JR.

EXHIBIT B.

ST. Louis, Aug. 8, 1881.

Mr. CRAFT:

DEAR SIR: I return you testimony taken Feb. 4th and 5th. I want to retain that
for Feb. 7th for a few days, as I have a copyist at work copying names from it. Will
return it when I return next batch. Please send me testimony for at least six days,
and, if you can, eight days. I finish it up so fast that it will keep me sending all the
time, and oblige
Yours, truly,

L. S. METCALFE, JR.

SESSINGHAUS VS. FROST. 401

EXHIBIT C.

ST. Louis, Aug. 18, 1881.

Mr. CRAFT : I sendyou by messenger the testimony taken Feb. 7, 8, 9, 10, 11, and 12.
That is all I have received, except that for Feb. 14. The latter I am on, aud will re-
tain until I return next batch. Please send by bearer, or as soon thereafter as pos-
sible, testimony for the following eight or nine days ; that is, Feb. 15, 16, 17, 18, 19,
21, 22, and 23 ; and oblige
Yours, truly,

METCALFE.
When does Frank return T

The facts here stated are so thoroughly established that no attempt
even has been made to dispute them.

They appear to us, in considering a question such as is before us, to
be of fatal importance to this controversy.

But the affidavits supporting this motion go farther. It appears that
the attorney not only had possession of all of the depositions, but he
wrote on them.

In his own affidavit, in speaking of the writing proved to have been
made by him, he says he " merely made marginal suggestions " (page
21).

These " mere marginal suggestions " were in the matter of names and
localities, which in this, as in most Congressional contests, constitute a
very important issue.

If the " marginal suggestion " was left unheeded that fact might have
lessened the alarm which sach manipulation of the depositions created,
but the direction given by the attorney in his "marginal suggestions"
was invariably aud blindly followed by the notary, as appears from his
final affidavit (page 25).

Lyne S. Metcalfe, jr., importuned me to let him have the testimony itself, as tran-
scribed, and I did give him possession of it for review and correction of the spelling
of proper names. I trusted to his integrity to write correctly the names of per-
sons and localities as given by the witnesses. I could rely on my notes of testimony
in all respects but this, and hence I took Metcalfe's written suggestions, believing
when I adopted them I was giving names and localities as they were given by the
witnesses on the stand.

The notary swears that he could rely on his notes of testimony in all
respects but those in which the attorney was permitted to direct
changes.

Without submitting these changes to the attorney for coutestee, or
suggesting that any are to be made or any have been suggested, he
changes in every instance the testimony as written to conform to the
ex parte " marginal suggestion."

It appears to us that the notary in the counter-affidavits cannot swear
that the testimony transmitted is the testimony as given, when he also
swears that he could not rely on his notes of testimony in the very vital
matters he made changes at the attorney's ex parte request.

The subcommittee in January appointed a committee, consisting of
Davis, of Missouri, and Ritchie, of Ohio, to examine the depositions to
ascertain if it was a fact that contestant's attorney had written upon
them and made changes, as charged.

Each took a portion of the very voluminous depositions, and found
the fact to be true that he had written upon them.

Mr. Davis, in a hurried examination, found over one hundred in-
stances of Metcalfe's marginal writings, aud in each and every instance
the body of the testimony was altered to conform to the marginal di-
rection.

H. Mis. 35 26

402 DIGEST OF ELECTION CASES.

While it would thus appear that the attorney had not with his own
hand changed and altered the testimony as written, yet inasmuch as
the notary did it at his dictation, confessing he relied on " marginal
suggestions " more than his notes of the testimony, we cannot appreciate
any substantial distinction to be drawn that will excuse the alteration.

The attorney at his pleasure made the changes in the body of the
testimony, using the hand of the notary, who confesses he relied more
upon what the attorney had written than what he himself had written.
He could not rely on his notes.

The law does not permit depositions to be drawn by any attorney
interested in a cause. The reason of the rule is well stated in these
cases following a special statute :

Hnrst & Co. vs. Larpim (21 Iowa, p. 484, Lowe,C. J.), appeal from the order of the
court suppressing certain depositions for the reason that they had heen written by
the counsel for the party in whose favor they were to be read as testimony, instead of
its being done by the commissioner designated in the notice. The objection was well
made and properly sustained, and that, too, without the slightest imputation <>n the
counsel who officiated as scribe. It was simply a legal impropriety which it was
competent for the court to correct and enforce by rule, if need be. The notary is
supposed to stand at all times indifferent to the parties, whilst the lawyer, having
made himself a partisan, is sufficient to feel a bias in favor of his client. Should he act
as scrivener in taking and in after reading it over himself to the witness for correction
or approval, contrary, as we think, to the spirit of the statute, however honestly done,
it would nevertheless subject him to criticism and suspicion. To relieve him of this
left-handed compliment we hold the court did not err in suppressing depositions.

Again, in Allen vs. Band (5 Conn., 522):

The law will not trust an agent to draw up a deposition for his principal, as by the
insertion of a word the meaning of which is not correctly understood, or by the omis-
sion of a fact that ought to be inscribed, the testimony thus garbled and discolored
will be false and deceptive. Nor is there a possible argument in favor of such a pro-
ceeding.

The statute even when strictly construed is sufficiently lax, when ex parte deposi-
tions are taken at least, not uufrequently to admit of the poisoning of justice in the
very foundations, for if the evidence is untrue or partial the result can never be con-
formable to right. * * * As the witness ought to be disinterested, so must the
evidence be impartial, comprising the whole truth, as well as nothing but the truth,
and that never can be rationally expected when a deposition is drawn up by an attor-
ney or agent.

It is much preferable that in particular instances the party should even be deprived
of testimony than a principle leading to widespread mischief should be adopted. It
is true that an agent may draw up a deposition impartially, and there is no reason to
donbt that the young lady in the case acted with the most delicate integrity. But the
statute was made in contravention of wrong and intends not in any case to place
confidence where it may be abused.

Such are reasons given for the rule in cases where, in the language of
the court, " there is no reason to doubt that the young lady in the case
acted with the most delicate integrity.''

But this case is broader, and shows that the same disposition and the
same delicacy which the court attributes to the party in that case, in
which the depositions were suppressed, cannot, under the affidavit of
the notary in this case, be given to the attorney who wrote the " marginal
suggestions."

On page 18 the notary, speaking of alterations in the testimony of
a witness who was testifying to character, says :

When that witness was yet in the room, after giving his testimony, counsel for con-
testant requested of me, as did also the witness, to leave out such profanity, but counsel
for the contestee positively refused to allow this. I then stated to the witness that I
would not write the objectionable words in full, but would simply indicate them, and
in this manner they appeared In my manuscript. 1 was therefore surprised to find,
this language erased.

SESSINGHAl's VS. FROST. 403

As the witness using tlie profanity was at the time testifying to the
good character of another witness for contestant, contestee insisted that
his language as given on the stand should remain. It affected the
weight of his testimony as a witness to character.

Notwithstanding there was a controversy as to eliminating it, and
contestee insisted it should remain and the notary decided it should
remain, the notary fiuds it tampered with, and swears, page 18, " I was
therefore surprised to find this language erased."

The disposition of any interested party cannot be safely trusted in the
matter of writing or dictating changes in a deposition, even where there
is no such proof as there is in this cause, establishing the fact that
changes were made in particular testimony after a positive decision by
the officer that it should remain. The fact that it had been a matter of
controversy fixed the matter on the mind, and to boldly alter or erase
under such circumstances is a positive index to the interest and dispo-
sition of the attorney who was thus surreptitiously intrusted with the
deposition on which he must make his case.

We cannot under the law and the fact escape from the conclusion
that this motion ought to be sustained. Why this question is ignored
in the majority report of the subcommittee, when the full committee
reserved it and ordered all matters pertaining to it to be printed, is
surprise to us.

It is all the more a surprise when, after the full committee had passed
on the motion to suppress, " without prejudice," the subcommittee, in
order to endeavor to restore to the depositions the integrity they had
lost, obtained an order of the House calling the notary to Washington,,
and commanding him to bring with him his notes of testimony for com-
parison with the alleged altered deposition. The qrder further provided
that a stenographer might be employed and a full investigation had.

This investigation was had, but, to add to the surprise, the notary-
stated he could not make the comparison demanded. He had destroyed
the original notes of testimony. It further appeared that he had de-
stroyed these " original notes required " after he knew both from personal
information and from the newspapers of Saint Louis, that the integrity
of his depositions was attacked. This destruction was also in the face
of the fact that stenographers preserve their notes even where they are
not necessary to the settlement of such a grave charge.

Inasmuch as it was the duty of the party who destroyed the integ-
rity of the depositions to restore it. and in view of the relation that
existed between that attorney and the notary, the destruction of sudu
important papers while a charge of this nature was pending is, to say
the least, adding another bad feature to a bad case, that prevents us
from escaping the issue presented by the motion, and hence we must
report that the motion to suppress ought to be sustained.

II.

The first clause of the majority report is that 155 votes should be
given to contestant, for various reasons, involving questions of law and
fact.

We are not able, from a careful reading of the report, to gather with
certainty any particular proposition either of law or fact on which the
majority rely in claiming these votes should be counted.

The proposition, as gathered at the bottom of page 6 of the report, is
that the board of revision of the city of Saint Louis, appointed under
the registration law, " improperly, wrongfully, and fraudulently denied
them the right to vote."

404 DIGEST OF ELECTION CASES.

If the fact were true that the board of revision acted fraudulently or
were in any manner disposed to improperly or wrongfully remove from
the list any voter who they knew was entitled to remain, we would
concede it to be our right and our duty to rebuke such fraud.

But the fact as stated is not true. It is glaringly false. That par-
ticular board of revision, instead of being disposed to do wrong or act
fraudulently in the performance of their duty, were, as this record amply
shows, a board composed of the best citizens of Saint Louis, and scru-
pulously impartial in the discharge of their duties. (Pages 1811, 1862,
1806, 1791, 1799, 1823, 1834, 1838, 1839, 1852, 1876, 1893, 1974, 2414.)
They are spoken of thus :

Leverett Bell, city counselor, testifies, on page 1811 of the Eecord :

Q. Were you acquainted, Mr. Bell, with any of the members of the board of revis-
ion f A. Which board of revision ?

Q. The one that immediately preceded the election of November 2 last? A. Oh,
yes, sir ; I knew nearly all of them, I think.

Q. What, in your judgment, was the standing of those men in the community, a,nd
their reputation for integrity and fair dealing? A. It was a most excellent board in
very respect. I think that within my experience of six or seven years in the city
hall, and of the boards of revision, I never knew any better board, taking it all the
way through, than that ; it was a board that didn't represent any political party ex-
olusively, but if. represented all classes; it was intelligent and honest ; and I thought
it was a model board at the time it was selected.

Charles G. Gonter, on page 2414, testifies:

Q. What was your opinion of the standing as citizens of the board of revision
-which sat at the April and November elections ? A. I thought they were high-toned
gentlemen, and incapable of doing anything wrong.

Q. In their actions was there anything of a partisan character ? A. Nothing what-
ever.

It appears that perfect good faith characterized all of the actions of
the board, and although composed of gentlemen of different political
belief the utmost harmony prevailed. It even appears from the Rec-
ord that the president of the board was a Republican (testimony of
Jlenry S. Parker, page 1862 of the Record) :

Q. What is your name? A. Henry S. Parker.

<Q. You live in this city, do you not, Mr. Parker? A. Yes, sir.

<J. Mr. Parker, how long have you resided in the city of Saint Louis? A. Forty-
three or forty-four years.

Q. What is your business ? A. I used to be in the lumber business, but I am not in
any business at present.

Q. Were you a member of the board of revision that sat just prior to the last No-
vember election ? A. Yes. sir.

Q. Were you an officer of that board? A. I was presiding officer, I believe.

Q. You were its president? A. Yes, sir.

Q. What are your politics? A. I am a Republican.

If it is insisted that these 155 names should be counted for contestant,
basing the claim on any fraud or attempted fraud of the members of
the board, we must find that the record overwhelmingly proves such a
claim false in fact.

III.

The question of fraud on the part of the members being disproved
and disposed of, other grounds must be sought to set aside the action
of the board of revision as to these 155 persons. On page 7 we find the
proposition to be that these votes should be counted, because the pro-
ceedings of the board were in violation of the law which gave them au-
thority.

SESSINGHAUS VS. FROST. 405

The report says, page 7:

By a resolution adopted at the beginning, heretofore cited, they declared they
would hear no testimony, and not act upon the knowledge of the board.

We must deny that any such resolution was passed. The resolution
is on page 4 of report, and speaks for itself, and it will bear no such,
construction.

The resolution is a perfectly proper one, one made to facilitate the
immense labors of the board. All bodies of this character must act
through committees. The resolution simply constituted each member
of the board a committee to gather "knowledge of errors," and report
the same to the board, who then passed on his report, and made the
"knowledge of the member 7 ' the "knowledge of the board."

The city counselor of the city of Saint Louis, being interrogated by
counsel for contestant as to the law governing the board of revision,
thus states it (page 1816) :

Q. Then you construe the words " their knowledge " to mean the knowledge of any
individual member, and the words "competent testimony" to mean any kind of evi-
dence which in the mind of any individual would be a fair presumption that certain
facts did exist ? A. I understand " competent testimony " there applies to cases where
witnesses are produced before the board, and the words "their knowledge" apply to
the outside operations of the members of the board. Isn't that a fact? The words
"competent testimony" apply, as I remember the law, to witnesses produced before
the board, who testify before the board. And "their knowledge," as spoken of, is
knowledge acquired by the member of the board outside the board itself. Now, as
to that, I say that any member of the board gaining information, in a manner that
carries satisfaction to his mind as being honest and impartial, may at any time report
such information to the board; and if satisfied that the report is true, the board may
adopt the report and proceed to strike otf the names, although the members voting for
that report have no knowledge of it themselves. I say this construction necessarily
applies to that law. Any other construction would so impede the operations of the
board of revision that it would be a board of revision only in name.

IV.

We next find the proposition to be that the members of this board in
gathering information and knowledge employed assistants, and because
they obtained their information in many cases through assistants the
action of the board of revision on these 155 names should be set aside.
(Report, page 5.)

A complete answer to this, as well as much satisfactory information
as to the work of revision in the city of Saint Louis, will be found again
in the testimony of Leverett Bell, esq., the city counselor of the city
of Saint Louis (page 1815) :

Q. Is there any law, Mr. Bell, authorizing this board, ortheindividnalmembersof it,
to employ assistants? A. Well, I don't think, Mr. Pollard, that the employment of
assistants is inconsistent with any t hing in that law. The board of revision meets and
is in session for a limited time: 'the list of voters in this city embiaces about 60,000
names; those names, if you divide them into wards, would be divided into twenty-
eight parts, and each member would have one twenty-eighth, or less or more, of 60,000
names to look after during his term of office, to wit, ten days ; the action of the board
is required to be the action of the majority of the board, and that involves, of course,
reports by individual members. I don't think that the law excludes the idea that a
member of the board may employ such assistants as he desires for the purpose of ob-
taining information; if it were otherwise, if that is excluded by the language of the
law, then the powers of the board are extremely limited. There is nothing in the
law that prohibits, in my judgment, the employment of assistants by members of the
board of revision to aid in their investigation of the registration list in this city.
This list, as I have just remarked, contains some 60,000 voters, and it is obviously im-
possible for '28 gentlemen comprising the board of revision to go over that number of
names p.nd acquire a personal knowledge, from their own personal investigation, as to.
whether each one of those names is a properly registered voter. As the law contains

406 DIGEST OF ELECTION CASES.

no conditions denying to them the use of outside parties, I don't regard the employ-
ment of assistants by the members of the board as inconsistent with anything con-
tained in the law. The law says, of course, that there shall be a judgment of the
board upon the question whether a man is or is not a voter; but the law does not un-
dertake to say how that judgment shall be made up or in what manner that infor-
mation shall be acquired.

But the action of the board of revision must be set aside because the
assistants employed acted fraudulently.

This proposition is all based on the testimony of one Michael Burke.
It is magnified by the majority report beyond all limits, and since it
charges actual fraud on the part of an assistant we have diligently
and without success sought for any proof of this fact; of course it is
admitted that none of the 155 names sought to be counted were stricken
off by Burke.

It is painfully apparent that the man was solicited to give damaging
testimony in the hope of being rewarded (page 88 of Record) :

Q. What induced you, -who have in your direct examination testified that you voted
for R. Graham Frost (the coutestee in this case) for Congress, to spend two months,
without promises of pay, in working for Sessinghaus, the contestant, in order to de-
feat Mr. Frost f A. Mr. Hardwig.

Q. What did Mr. Hardwig promise you? A. He promised me nothing.

Q. Why did you do that ? A. He asked me would I go around with him as a
friend.

Q. What means of livelihood had you in the mean time? A. I was borrowing
money of Hardwig all along.

And on page 89 following:

Q. And did not Mr. Hardwig expect that you would come here and testify as you
have done, and that yon would receive some compensation for it ? A. I don't know
what he thought, sir.

Q. Did he say so ? A. He did not say so.

Q. Did he say anything of the kind ? A. No, sir.

Q. Was it tacitly understood that you should ? A. That is something I don't know.

The reviser of that ward was a most reputable citizen of Saint Louis,
and, as is apparent in his testimony (page 1988), interested only in the
faithful and impartial performance of the duty assigned to him.

So scrupulous was he. in this discharge of his duty that he did not
trust this work to Burke alone, but employed a member of the Repub-
lican central committee to accompany Burke. Burke's testimony, page
80 of Record:

Q. Will you please state in what manner you did this work? A. Wells, myself, and
Mr. McClellan did this work.
Q. Who is Mr. McClellan? A. He is the central Republican cominitteenian.

Is it not ridiculous to suppose that such a poor fool as Burke could
do anything out of the way under the watchful eye of a member of the
Republican central committee, who took upon himself the labor of re-
vision for no other reason and with no other end in view than to be
sure that the work was properly done?

If there was any question as to the actual fact that Burke did not do
any damage, assisted as he was in the performance of his duty by a
member of the Republican central committee, it is clearly established
by his own cross examination. He breaks down completely, and con-
fesses he does not know of a single qualified voter against whose name
he noted objection. Here are his own words (page 83) :

Q. Well, I will ask you again, did you cheat anybody out of his vote that was
legitimately entitled to vote ? A. I don't know, sir.'

SESSINGHAUS VS. FROST. 407

Q. You now tell me that you cannot remember the name of one single Republican
entitled to vote that you struck off those lists f A. No, sir; not at the present time
I cannot.

Q. Can't you give the name of any person living at any place when this was
done ? A. I can't think of any one. I don't remember any.

This is the smnand substance of the testimony of this man, so magni-
fied in reports and briefs as to pass beyond all limits of recognition.

VI.

But the action of the board of revision must be set aside because
the voters whose names were stricken off were not actually notified.
(Page 7 majority report.)

The law provided for notice by publication, and is as follows:

They shall sit from day to day, not exceeding ten days, until they have completed
the labors, and their proceedings shall be printed daily in the paper doing the city
printing. (Revised Statutes of Missouri, 1879, vol. 2, sec. 11, page 1578.)

If, as we have seen, the board of revision was composed of citizens of
high repute, disposed to act conscientiously in the discharge of their
duties, and they did perform their duty to the best of their ability, and
published daily, in the official organ of the city, the result of their work,
and these 155 men were publicly notified before the election of the ac-
tion taken on their names, and they took no steps then to correct any
mistake made, shall they be permitted to do it now f

It' they permitted this duty wholly due to themselves as citizens
and voters at the time of election to go by default, should they not
suffer for their indifference or neglect?

Is not the action of that board a finality as far as it went! Has it
not the force of judgment? The law provided how that judgment
might be set aside. It caused the names to be published, so that those
stricken off might be notified; and if mistakes were made, the citizens
thus stricken off could call the attention of the reviser to the fact that
a mistake was made. It is proved that in every instance where the
attention of the revisers were called to mistakes made by them they
were corrected.

VII.

As a matter of fact a large number of the names printed on page 3
of the majority report had otherwise failed to comply with the registra-
tion law, and their votes could not conscientiously be received by judges
of election. They had failed to exercise the diligence required of all
voters and to comply with the following regulation:

Si:c. 13. Any registered voter who shall remove from one place to another in said
city shall, not h-.vs than ten dnys previous to the election following, report the fact of
snch removal to the recorder of votes, giving his name and place or number from
which, as well as that to which, h has removed; and said recorder of votes shall
iiott- the fact opposite the name of the person removing, and re-enter his name in the
list of voters for the district wherein he may be entitled to vote. (Revised Statutes
of Missouri, 1879, vol. 2, page 1578.)

VIII.

The majority of the committee seemed to agree that these views of
the case were correct, and that it could not do for a voter what he neg-
lected to do for himself. That if the voter failed to comply with the
regulations of the law which required him to transfer his name to his

408 DIGEST OF ELECTION CASES.

new residence it was his own fault. It was also apparent that the voter
had had his day in court, and was notified through the official daily
press of the action of the board of revision on his name, and if he
failed to take the interest that all citizens ought to manifest in correct-
ing mistakes and complying with regulations, and of preserving the
privilege granted by the statute, then the judgment of the board of
revision should not be set aside.

The only claim on which the contestant could be seated would be that
the registration law of Saint Louis was not in accord with the con-
stitution and laws of the State of Missouri, or that the city of Saint
Louis had not the right to adopt a charter containing provisions for the
registration of voters.

The Committee on Elections having, as we must presume, satisfied
themselves they could make no recommendation to unseat contestee if
the registration law of Saint Louis was constitutional, requested argu-
ment on that subject.

On January 16, 1883, the committee passed the following resolution :

Resolved, That this case be laid over until January 19, 1883, at which time the par-
ties be allowed one hour on each side for written or oral argument before the whole
committee, to be confined to a discussion of the validity and effect of the registration
law of Saint Louis.

VALIDITY.

The particular sections affecting this cause embraced in the law the
validity of which is r.ow called in question are as follows (Revised Stat-
utes of Missouri, 1879, vol. 11, pages 1576 and J578) :

SEC. 3. Every male citizen of the United States, and every person of foreign birth
who may have declared his intention to become a citizen ot the United States ac-
cording to law, not less than one year nor more than five years before he offers to vote,
who is over the age of twenty-one years ; who has resided in the State one year next
preceding the election at which he offers to vote, and during the last sixty days of
that time shall have resided in the city of St. Louis, and during the last ten days of
that time in the district at which he offers to vote ; who has not been convicted of
bribery, perjury, or other infamous crimes, nor directly interested in any bet or wager
depending upon the result of the election, nor serving in the United States Army.
shall be entitled to vote at such elections for all officers, State or municipal, made
elective by the people, or at any other election held in pursuance of the laws of this
State; tut shall not vote elsewhei-e than in the district where his name is registered, and
whereof he is registered as a resident.

*******

SEC. 5. A recorder of votes shall be appointed by the mayor and confirmed by the
council, who shall possess the qualifications of a member of the council. He shall
hold his office till the first Tuesday of April, 1879, and until his successor is appointed
and qualified, and every subsequent appointment shall be for a term of four years.
Said recorder of voters shall be ineligible to any elective office during the term for
which he is appointed.

SEC. 6. Said recorder of voters shall keep his office at the city hall, and shall at
all times, between the hours of nine in the forenoon and five in the afternoon, attend 1
therein for the purpose of recording in the various registration-books furnished him
by the register the names of the qualified voters of said city. He is empowered to ad-
minister all oaths necessary in the registration of voters ; and any person who shall
falsely take and subscribe the oath prescribed in the fourth section of this ordinance
shall thereby incur the pains and penalties of perjury.

*******

SEC. 11. The mayor shall appoint a board of revision, consisting of one reputable
citizen from each ward in the city, who shall possess the qualifications of a member
of the house of delegates, whose duty it shall be to meet with the recorder of voters,
at his office, thirty days before each general, State, or municipal election, for the pur-
pose of examining the registration, and making and noting corrections therein, as
may be rendered necessary by either their knowledge of errors committed or by com-
petent testimony heard before the board ; a majority of said board shall be necessary

SESSINGHAUS VS. FROST. 409

to do business, and the mayor shall be ex officio president thereof. They shall strike
from the registration, by a majority vote, names of all persons who have removed
from the election district for which they registered, or who have died, and shall note
the fact opposite the name of any person charged with having registered in a wrongf
name, or who for any reason is not entitled to registration under the provisions of this
ordinance, which person shall be challenged by the judges of election when present-
ing himself to vote, and rejected unless he satisfy said judges that he was entitled to
register ; and said board shall also place on said books the names of such persons a
in their judgment have been improperly rejected by the recorder of voters. They
shall sit from day to day, not exceeding ten days, until they have completed the
labors, and their proceedings shall be printed daily in the paper doing the city printing,
They shall each be allowed the sum of three dollars per day for their services.
* * * * # * *

SEC. 13. Any registered voter who shall remove from one place to another in said
city shall, not less than ten days previoiis to the election following, report the fact
of such removal to the recorder of voters, giving his name and place or number from
which, as well as that to which, he has removed; and'-said recorder of voters shall
note the fact opposite the name of the person removing, and re-enter his name in the
list of voters for the district wherein he may be entitled to vote.

The law from which the above sections are taken is what is designated
in the Eevised Statutes of Missouri as the "scheme and charter."

The authority to frame this "scheme and charter" is derived not from
the legislature, but from the constitution of the State of Missouri y
adopted by the people of that State in the year 18T5. (See constitution
of Missouri, Eevised Statutes of Missouri, 1879, section 20, article IX.)

SAINT LOUIS.

SEC. 20. The city of Saint Louis may extend its limits * * * and frame a
charter for the city thus enlarged. * * * Such scheme shall become the organic
law of the county and city, and such charter the organic law of the city.

Thirteen freeholders were to frame this charter, and the only limita-
tion made by the constitution as to what provisions it should contain is-
to be found in the following section:

ARTICLE IX, SEC. '23. Such charters and amendments shall always be in harmony
with and subject to the constitution and laws of Missouri. * * *

If the registration law above quoted and embraced in the charter thus
authorized is in harmony with the constitution and laws of Missouri,,
wherein can such law be unconstitutional ?

If there is any want of harmony it can be readily pointed out. It is-
certainly not in conflict with any registration law passed by the general
assembly of Missouri. Compare the sections of the charter above quoted
with sections 4391, 4393, 4399, 4401 of the general registration law passed
by the general assembly of Missouri for all cities of over 100,000 inhabit-
ants, and the most perfect harmony is apparent. In fact, they are al-
most identical in phraseology.

The city of Saint Louis also adopted an ordinance which contains the-
same provisions embraced in the charter. (See page 1681 and following
of the record.)

The ordinance, the charter, and the law passed by the general assem-
bly are substantially copies of each other. .

If, then, there is no want of harmouy, what other reason can be urged
to declare the law invalid f

We find it on page 6 of the majority report of the subcommittee :

True it is the ordinance of Saint Louis provides that a voter "shall not vote else-
where than in the district where his name is registered and whereof he is registered
as a resident;" but it is to be remembered that this ordinance was never passed, ac-
cepted, or adopted by the legislature of Missouri, and that the constitution of 1875^
which authorized the city of Saint Louis to adopt a charter, also, in another provis-

410 DIGEST OF ELECTION CASES.

ion authorized the general assembly to pass a law for the registration of voters in
cities having over one hundred thousand inhabitants. The power under the consti-
tution to pass such a law was vested exclusively in the general assembly. An at-
tempt on the part of any other party to make such a law, ordinance, or charter is, to
ay the least, of very questionable authority.

The section referred to is as follows :

ART. 8, SEC. 5. The general assembly shall provide by law for the registration of all
voters in cities and counties having a population of more than 100,000 inhabitants,
and may provide for such registration in cities having a population exceeding '25, 000
inhabitants and not exceeding 100,000, but not otherwise.

It is apparent that the constitution, in thus providing for "cities and
-counties," does not include or refer to the city of Saint Louis. Saint
Louis is made an exception from all other cities ; and in article IX,
which refers to u counties, cities, and towns," special sections are
adopted for the " city of Saint Louis."

In the case of the City of Saint Louis vs. Sternberg (69 Missouri Re-
ports, on page 297) Judge Norton says :

It will be observed that in article 9 of the constitution, under the head of "counties,
cities, and towns," Saint Louis is singled out from all other cities and towns in the
State, and sections 20, 21, 22, 23, 24, and 25 of the article contain provisions relating
exclusively to it.

The fact that the general assembly was ordered to frame a registra-
tion law for " cities and counties " of over 100,000 inhabitants was clearly
not intended as a restriction of the full power given to Saint Louis to
also frame a registration law, provided it was not in conflict with State
legislation.

In the same case Judge Norton continues :

The general purpose that the city might have the power to enlarge its limits and
separate itself in a governmental point of view from the county, and have the right
as a municipality to govern itself, provided its government should be in subordina-
tion to and consistent with the constitution and laws of the State of Missouri, is mani-
fested throughout the above sections. * * *

It is clear, we think, from these sections, that it was the intention of the framers
of the constitution that the city of Saint Louis might adopt as its organic law a
charter containing any and all the provisions then in its charter, and such other pro-
visions as would not be inconsistent with the constitution and laws of the State.

In re Chas. Dunn (vol. 9, Missouri Appeal Reports, page 255) the
court says :

An ordinance passed under authority of such a charter must of course be equally in
harmony with the constitution and laws of the State ; otherwise it will, in so far as
it fails of such harmony, be invalid.

By the word harmony in this connection is not to be understood an exact coinci-
-dence in all possible points of comparison.

Its meaning is clearly that no regulation established by the charter, nor any made
by its authority, shall do violence either to the declared laws or to the policy or mani-
fest governmental purposes of the State, as shown in her constitution and statutory
enactments.

As has been observed, instead of there being any want of harmony,
any inconsistency, any violence to statutory enactments, the charter,
ordinance, and statutory enactments are in perfect accord.

'Besides, the registration law embraced in the charter of Saint Louis
is by special enactment of the general assembly adopted and recognized
as the law governing elections in that city. (Revised Statutes of Mis-
souri, 1879, vol. 11, page 1082.)

SEC. 5503. Elections in Saint Louis conducted how. All elections in the city of Saint
Louis shall be conducted in all respects as provided by the laws now in force regu-
lating elections in said city.

SESSINGHAU8 VS. FROST. 411

What does the general assembly mean by u the laws now in force
governing elections in said city," and why does the statute single out
Saint Louis, and as to it make such a special provision!

Saint Louis had a registration law of its own; that was in its charter ;
other cities did not have registration laws of their own, and hence it
was necessary to single out Saint Louis.

If there is any further doubt that the registration laws of Saint Louis
is what is meant by the "laws now in force regulating elections in said
city," it is but necessary to turn to the Revised Statutes of Missouri,
where the charter of the city of Saint Louis is published with the State
laws. (Revised Statutes of Missouri, vol. 11, page 1575.)

This publication was incorporated in the revised statutes of the
State of Missouri not by chance, but by direction of the general assem-
bly. (Revised Statutes, vol. 1, title " Laws," section 3158.)

There can be no question that when they use the language " laws
now in force," in section 5504, and " except as otherwise provided by
law," in section 5563, the registration laws of Saint Louis as contained
in the charter and printed with the revised laws of the State were re-
ferred to as existing laws.

This being the case, instead of there being want of harmony, there
is not onlj- perfect harmony, but a legislative adoption of these very
laws in question.

We must therefore conclude that these registration laws are valid.

EFFECT.
A question asked made this perceptible, viz :

Even if valid, how far is this committee bound by your Eegistration laws f

The most satisfactory answer to this question will be found in the
following quotations from McCrary's American Law of Elections :

The right of suffrage is not a natural right, nor is it an absolute, unqualified per-
sonal right. It is a right derived in this country from constitutions and statutes. It
is regulated by the States, and their power to fix qualifications of voters is limited
only by the provisions of the fifteenth amendment to the Constitution, which forbids
any distinction on account of race, color, or previous condition of servitude. (41 Mo.,
Frank P. Blair ?. Ridgley, page ; Huber vs. Reilly, 53 Penn. State R., 115; Ridley
vs. Sherbrook, 3 Cold., 569 ; Anderson vs. Baker, 23 Md., 531 ; Brightly Election Cases,
27; see also sec. 3, page 9.)

And again :

Subject to the limitation contained in the fifteenth amendment to the Constitution
of the United States, the power to fix the qualifications of voters is vested in the
States. Each State fixes for itself these qualifications, and the United States adopts
the State law upon the subject as the rule in Federal elections. (Sec. 1, chap. 1, page 7.

We think that, as to effect, the provisions of the law being reason-
able, and the law itself never having been questioned in the courts of
Missouri, the House will not see fit to depart from the .principle laid
down in McCrary, that the rule as to Federal elections shall be in accord
with the laws of the State where the election is held. (McCrary, sec. 1,
chap. 1.)

If by the word effect in the resolution is meant the practical working
of the law, we refer to and adopt the views of the city counselor of the
city of Saint Louis, as the same appear on pages 1814, 1815, and 1816
of the record.

He clearly shows that in the manner of performing the duty imposed
by the law the board of revision did not proceed otherwise than in ac-
cordance with the law.

412 DIGEST OE ELECTION CASES.

Although these questions as to validity and effect may be considered
as answered in this report by the references herein made, yet we would
like to call attention to an obvious erroneous principle urged in the
argument in behalf of contestant.

It was urged in his behalf that the law requiring registration was in
violation of the constitution of the State of Missouri, because it was
adding an additional qualification.

In Capen vs. Foster (12 Pick, 485). and Brightley's Election Cases.
51, and McCrary, section 7, page 11, in discussing the power to provide
for the orderly exercise of the right of suffrage, and the power to enact
registry laws, and to prohibit those not registered from voting, it is
decided that such laws do not add to qualifications of voters; they are
simply rules regulating voters. And McCrary says, section 7, page 11 :

It is now generally admitted that those laws do not add to the constitutional quali-
fications of voters, and are therefore not invalid.

It was also urged that the law requiring registration was not " im-
perative " or positive, within the meaning of the rule laid down in
McCrary.

The language of the law could not be more positive. It reads thus :

But shall not vote elsewhere than in the district where his name is registered and
whereof he is registered as a resident. (Eevised Statutes, vol. 11, page 1576.)

And, again, to show that the regulation is imperative, and the quali-
fied voter must see to it that his name is on the registration list, we
cite section 5487, Kevised Statutes, vol. 11, which contains the oath re-
quired to be taken by the judges of election. The section, after giving
a form of the oath, adds :

In cities where registration exists they shall also take the additional oath that
they will not allow any person to vote whose name is not duly registered.

It is difficult to conceive how expressions more positive could be in-
troduced into the law. As stated before, this registration law under
which they have been acting for years has never been questioned in the
courts of Missouri, but previous laws have received similar interpreta-
tion.

All the decisions of Missouri are in harmony with the rules as stated
in this report. (See 41 Missouri, page 63; 43 id., page 290 ; 38 id., page
425; 44 id., page 346; 54 id., page 502; 67 id., page 331.)

As the only argument invited by the resolution of the committee was
as to the validity and effect of the registration laws, we concluded that
no report favorable to contestant could be made if investigation showed
these laws to be good and valid.

Some labor was devoted to this question, and the references here
made leave no possible room for doubt. The laws are reasonable and
valid, and it is not to be commended that a contestant should be seated
by overturning the laws of a State that are satisfactory to the people
of that State, and the legality of which has never been questioned by
themselves.

The question here fully discussed should dispose of the whole case,
for in the other subdivisions and claims of the majority report these same
questions prevail.

In subdivision Uo. 2, where, as the report says, 35 men were refused
for various trivial and insignificant reasons, the trivial and insignificant
reasons were a failure and neglect to comply with the law governing
the election, the validity of which has been established.

As an instance of this we will cite from the record, taking the name

SESSINGHAUS VS. FROST. 4J3

of Samuel Gray, whose vote is sought to be counted by the majority
report.

It will be remembered that the law (section 13, page 1576, Revised
Statutes of Missouri) required that u any registered voter who shall re-
move from one place to anotner in said city shall, not less than ten
days previous to the election following, report the fact of such removal
to the recorder of voters, giving his name and place or number from
which, as well as that to which, he has removed," &c.

Xow, from Samuel Gray's own testimony it will appear that he did
not comply with this very plain and obviously reasonable regulation.
He did not go to the recorder of voters ten days before the election.
He did not go at all. Here is his own testimony :

Q. Well, when you removed from 2718 North Tenth you did not go to the city hall
to transfer to 805 Palin ? A. No, sir. v

Q. Why did you not go there to obtain your transfer? A. For the simple reason
that I thought I could get it there at the polls.

Q. Did you not know it was the universal rule at all elections, this last as well as
all previous elections, that judges at the polls could not transfer you on election
day ? A. 1 did not, sir ; I supposed it would be just the same it was before.

Q. Was there ever a transfer made at the polls in this city by any intelligent j ndge
of election ? A. I could not say, sir.

Q. At this poll that you visited the judges were equally divided, Democratic and
Republican ? A. I could not say, sir.

Q. Well, there were Republican judges there? A. I suppose there was; I don't
know but they were ; I don't know anything at all about it.

Q. The gentlemen in whose company you visited the poll were perfectly informed
with regard to that fact ? A. I suppose they were : I don't know.

Q. Well, they talked to the judges about your case ? A. Yes, sir; Mr. Shoenbeck
did, anyhow.

Q. And it was carefully considered ? A. Yes, sir.

Q. How long were you at the polling window ? A. I was there some twenty min-
utes, I guess. , - * v

Q. Talking about yourvote as to whether you could vote or not ? A. I went there
twice.

Q. How long did you remain the second time? A. About five minutes; they just
told me that I couldn't vote, and I went back to my work.

Q. You could not vote what was the reason ? A. Well, because I was not trans-
ferred, sir.

Q. The judges treated you politely ? A. Yes, sir; they all treated me well enough.

Q. And it was their conclusion that you, having neglected to transfer, it was with-
out their power to transfer you on election day ? A. I suppose that was their idea
about it, sir.

Q. And you went away ? A. Yes, sir.

Q. And that was all that was said and done there ? A. It was all that was said and
done at the polls, that I know of.

Of course the judges of election could not receive such a voter with-
out violating their oath of office.

The reasonableness of the rule of law requiring the voter to notify
the recorder of votes of his removal, and thus obtain a transfer of his
name on the registration list is apparent.

The reviser of the ward, when he visits the place from which the
voter has removed, does not find him living there, and it is made his
duty by the law to strike his name off as a voter from the residence
from which the voter has removed.

The reviser cannot seek out with accuracy the exact streets and num-
bers to which the citizen has removed, hence the law very wisely makes
it the duty of the citizen himself to attend to this matter ten days before
the election.

The ten days' previous notice is required of the citizen because the
registration list for each voting district in the city of Saint Louis has to
be printed before the day of election.

Inasmuch as there are 244 election precincts in the city of Saint

414 DIGEST OF ELECTION CASES.

Louis (Record, page 1701), and each of these must be furnished by re-
corder of voters with the name and street and number of the voters liv-
ing in each, it is apparent that confusion would arise unless it was made
the duty of the voter himself to give the information as to the street
and number to which he had removed.

If this is neglected by him, it is the voter's own fault. The right to
vote is a privilege, and diligence on the part of the voter is demanded,
and if we find neglect instead of diligence, we cannot do for him at
Washington what he should have done for himself at Saint Louis.

Even in the case of the 155 votes sought to be counted by the major-
ity report the same neglect on the part of the voter appears even in
their own testimony. We will cite just a few.

Daniel Dickey, in majority report (Record, page 563), swears in regard
to his own case as follows :

Q. The only registration that you ever made at the city hall was from 3304 Laclede
avenue, which is not, however, your present residence? A. No, sir; it is not my
present residence. It is more than a mile from where I now live. It is near two
miles.

Q. And you never obtained a transfer at the city hall? A. No, sir.

Q. You have spoken here about voting. I will ask you whether you ever obtained
a transfer at the city hall ; whether you ever obtained a transfer from your former
residence to your present residence ? A. No, sir.

Q. Why did you neglect that, Mr. Dickey? A. Simply because I had never thought
of it, only immediately before the Presidential election, and the crowd then was so
very great I had no time or inclination to stay there a whole week to get registered ;
that is to get a transfer.

Edward T. Goodfellow (Record, page 566) :

Q. You never obtained a transfer from your last registering place and didn't regis-
ter at the polls ? A. No, sir.

Q. And the place that you registered from on April last was a mile or two from
where you lived on election day ? A. Yes, sir.

John Johnson (Record, page 1166) :

Q. When you moved did yon notify the officers at the city hall that you had moved T
A. No, sir.

Q. So you got no transfer between these places you got no transfer from one place
to another ? A. No, sir.

Q. How far are they apart where yon registered from before and where you lived
on election day how far are these two places apart? A. Well, it is at least two
miles, I guess.

George Lang (Record, page 1587) :

Q. Why didn't you obtain a transfer when you moved. A. I suppose it was my
neglect.

Q. You knew it was your duty to do it ? A. I suppose so, but then I am pretty busy
all the time.

Charles Meslemacher (Record, page 1059) :

Q. Yon are a commission merchant, you say ? A. Yes, sir.

Q. They told you at the polls that you had moved, and therefore your name was not
on the list? A. They said my name was stricken off and they could not find it on the
new list ; they didn't have my name.

Q. Yon moved from 1304 Warren ? A. Yes, sir.

Q. Where you had previously registered? A. Yes, sir; to 2517 North Thirteenth.

Q. And you didu't notify tha authorities at the city hall of the fact that you had
made that removal ? A. I did not notify them.

Q. And therefore you had obtained no transfer ? A. No, sir ; I had not obtained
any transfer.

Robert E. Nagle (Record, page 720) :

Q. You didn't have time to obtain a transfer ? A. No, sir.

Q. And the registrar at the polls told you that inasmuch as you had not obtained
a transfer he couldn't register yon at the polls, because no transfers could be made at
the polls ? A. That is the understanding I had.

SESSINGHAUS VS. FROST. 415

Q. That was the same all over the city ? A. That is the idea ; yes, sir.

Charles A. Price (Record, page 643) :

Q. You found your name stricken off at the first place that you went to? A. Yes,
sir.

Q. And you told the judges that you had registered before that, but had failed to-
obtain a transfer? A. Yes, sir.

William Raining (Record, page 1040) :

Q. Where were you living when you voted for Hayes? A. Well, I was living oa
Victoria street then.

Q. And after you moved from Victoria street you did not notify the authorities at
the city hall of the fact of your removal in order to obtain a transfer ? A. No, sir.

Q. Why didn't you do that? A. Well, I didn't think about it. I asked Mr. Con-
rades about it, and he says it was not necessary ; it will be time enough to do that at
the polls.

Q. Did you not know that it would be impossible for any judge to make a transfer f
A. I didn't know that, sir.

Q. If you had known that you would have gone to the city hall ? A. Yes, sir.

Q. And got your transfer in proper form ? A. Yes, sir.

Q. You know that there WHS a great many Democrats as well as Republicans that,
were in the same situation that didn't know the fact, and therefore could not vote at
the election ? A. Yes, sir; I suppose so.

Frank Schallon (Record, page 777) :

Q. Why didn't you go to the city hall and have this transfer made ? A. Well, I
thought it was near where I lived. I lived in the same place where I lived before ;
I thought I had a right to vote ; nobody was telling me anything else. I told George^
Davenport to have me registered, and he promised to do so. That is where he lived.
He said that he would see to my name.

Q. Why didn't you go to the city hall and attend to that yourself, inasmuch as-
you were the party ? A. I haven't got the time to run around and have myself reg-
istered.

Aug. Solari (Record, page 581) :

Q. So you didn't take time and wait to obtain a transfer ? A. Ididnot. I thought
I was entitled to register at the polling place.

Q. So when you went to the polls the judges told you that under the law they had
no power to make a transfer on election day ; that it was your duty to do that at thfr
city hall prior to the election after you had removed ? A. That is about it, sir.

John Zieres (Record, page 993) :

Q. And they told yon, that you not having transferred there, that you could not-
vote at those polls? A. I went back to the polls and told one of the judges there,
Mr. Schaeffer Louis Schaeffer; he was a judge and one of my.friends

Q. He was a Republican ? A. I don't know what ticket he votes.

Q. But you suppose him to be a Republican? A. I have heard him to be such.

Q. He was a Republican judge at that poll ? You are an intelligent white man.
A. I think I am.

John G. Redemeirer (Record, page 803) :

Q. You say you always voted on Broadway ? A. Yes, sir.

Q. How far is that from the place that you lived in on election day ? A. Well, I
suppose that is within a half a mile.

Q. Well, that is in a different polling precinct? A. Yes, sir.

Q. But you obtained no transfer? A. No, sir.

Q. Never did get one? A. No, sir.

Q. Why didn't you go to the city hall to obtain a transfer ? A. I wouldn't be
bothered that much.

Q. You didn't take enough interest in it to go up there and get itt A. No, sir.

Q. You didn't care enough about it ? A. I didn't trouble my head about it ; I didn't
care a damn.

Q. You didn't care a damn ? A. No, sir.

Q. You didn't take enough interest in the matter to go to the city hall and trans-
fer ? A. No, sir.

Here are voters and only a few of many whose names are in the ma-
jority report who did not take interest enough in the election to comply

416 DIGEST OF ELECTION CASES.

with the regulation of the law to notify the officials of their removal
froui one residence to another.

These names in last citations are all included in the first claim of 155
votes grounded on their being improperly stricken from the registration
list. Their own testimony shows it was the duty of the revising board
to strike them off from " appearing on the lists as residing at a certain
place " from which place they themselves admit they had moved. They
were not improperly stricken off. The reviser acted properly. The
voter neglected to do his duty.

In all the claims of the majority report this neglect of obedience to
a reasonable regulation underlies the claim as presented.

There are two claims of mistake in the official count of a few votes,
six or eight, but the testimony on which the official return is sought to
be contradicted does not rise to the dignity of being seriously consid-
ered as evidence. There is a claim that 15 Greenback Labor tickets
were rejected on which it is supposed the name of contestant appeared,
but on a reference to the record the one witness who testifies to this does
not give any positive testimony ; it is alt guess-work. The witness him-
self does not appear to be familiar with either the make-up of the ticket
or the number who voted them ; thinks most of the 15 had contestant's
name on. (See his testimony, page 612, as cited in report.)

Regarding as we do that the settlement of the question of the validiy
and effect of the registration laws of Saint Louis decides this case in
favor of the sitting member, we do not deem it necessary to go into
detail of votes. However, there is a claim of 86 votes made under a
special registration law, called the " O'Neil act," which enabled persons
never registered to register at the polls ; and such a gross abuse was
made of this privilege in this cause in the interest of contestant that
some reference should be made to this claim in this report.

This act was enforced that election, but on account of these gross
abuses had to be repealed. These abuses will be referred to hereafter.

We must say now, without quoting fully from the citations of the
majority report, that they show that, as usual, the voters whose names
are given had failed to transfer. They actually had been previously
registered, and hence, having been once registered, could not avail
themselves of the extraordinary privileges of that act. The act is as
follows :

AN ACT to provide for the exercise of the right of voting by persons who have failed to register.

Be it enacted by the general assembly of the State of Missouri as follows :
SECTION 1. In all State, county, and municipal elections hereafter held in any city
of this State having a population of one hundred thousand inhabitants or more no
person shall be deprived of the right of voting at such election by reason of having
failed to register : Provided, That in all cities where registration is required by law
the party ottering to vote, but who from any cause has failed to register before he
offers to vote, shall be, on the day of such election, registered by a special registrar
of election, appointed by the judges of election for that purpose at each precinct, as
a qualified voter, in a book to be kept for that purpose ; and the ballot of such voter
Khali be received and counted at such election; and such registrar shall return to the
registrar of voters of such city the list of such voters so registered within ten days
After such election, provided the said registrars shall be sworn as provided for the
recorder of voters, and the books shall contain the written or printed oath as re-
quired in the regular registration books.
Approved March 30, 1877.

Here is a sample of the men who never had registered. John Bell-
ville (Record, page 476) :

SESS^NGHAL'S VS. FROST. 417

Q. How often did you change your residence in the city of Saint Louis f A. The
last time that I registered I was living on Ninth street,* bet ween Cass avenue and
Mullanphy.

*****

Q. Well, you had been previously registered ; you so informed the judges, and they
wouM.'i't permit you to make a transfer on that day? A. No, sir; they wouldn't
allow me to transfer.

It is not necessary to cite others, as we desire to show some of the
abuses under this law in the interest of this contestant which should
not be left uncousidered.

It appears from the record that the contestant failing in his proof to
make a case, some unscrupulous men in his employ sought to take ad
vantage of the O'^eil act to "manufacture evidence."

A drill class was formed for worthless vagabonds, who, on receipt of
75 cents, would swear that they " never had registered," and that on
election day they had offered <k to register and to vote" and were re-
fused.

So many of this herd were driven on to one poll that contestee sum-
moned all of its officers, Democrats, Eepublicaus, judges, clerks, United
States supervisors, and marshals, and they were all surprised to hear
of any charge of unfairness or partiality or improper refusal of a voter
at the poll in question.

The testimony of all these officers, of all positions and all parties,
will be found in the Eecord on pages 1918, 1919, 1920, 1922, 1923, 1924,
1927, 1938, 1939, 1944, 1945, 1946, 1950, 1951.

These men who swore that these vagabonds must have deliberately
lied were men of reputation and position in the city of Saint Louis.
The United States supervisor had been an officer in the United States
Army, and he testifies : ,.

Q. Was there any man that came there that day, black or white, who produced
satisfactory evidence that he had been in the city long enough, refused the privilege
to register and vote ? A. None.

Q. Did you notice any bias or prejudice on the part of any judge or other officer at
that poll toward any voter, white or black ? A. I did not.

Q. Audit was your business to supervise that election? A. Yes, sir; a general
supervision over all of it.

Yet if we were to believe the vagabonds whose testimony is indi-
cated in these formidable tables, and the majority of whom swear they
were refused the privilege of registering and voting at this particular
poll, you must disregard the oaths of gentlemen Republican and Dem-
ocrat as respectable as ever appeared on a witness stand.

The record indicates that the witnesses referred to were not only
drilled but deliberately, for lucre, perjured themselves.

A confession of this bad work was made by one E. A. Fenton, who
had been employed as 'a canvasser on behalf of contestant in the con-
test.

William J. Anderson (Eecord, page 2267) :

Q. What did Mr. Fulton say to you T A. I had several conversations with htm
* * * He further said that it was a goo 1 scheme if he could get this part of the
work, because he could hide up his own dirty work that him and Lewis done; they
could both hide it ; he seemed very anxious to hide up what they had done before ;
he thought his was a very fine scheme for that.

Eecord, page 2268 :

Q. You gave him a list of ths negro witnesses that had been examined in the cause,
for the purpose of ascertaining whether it was true or not that they lived where they
swore they did. A. Yes, sir. He informed me that it was not necessary for him to
leave his room.

H. Mis. 35 27

418 DIGEST OF ELECTION CASES.

Q. He informed you that he did not need to go out of his rooms for that business,
because he knew whether they lied or had not lied? A. Yes, sir.

Eecord, page 2268 :

Q. Did he state to you that he could locate all the crooked evidence in behalf of
the contestant in this case, Mr. Sessinghaus? A. Yes, sir; because, he said, it was
not necessary for him to leave his room in pursuit of this object ; that he knew just
where each one of them lived ; there might be one or two that he didn't know ;
that he would probably have to work half an hour a day, but in regards to me he
said I would have to go right to work and look up witnesses, and serve subpoenas on
them.

Q. What did he say in regard to playing "hell " with Sessinghaus's case if he was
placed on the stand against nim? A. He told me, I think it was about yes, it wa
about two days and a half or three days before he left he had seen a notification
sent to J. T. Smith by myself and Lewis, that they was going, to be witnesses in the
Frost case, and he said if he got on the stand and swore against Sessinghaus he would
"raise hell." He said that all the dirty work he knew as much about as anybody
would be like to know, and he would "raise hell." It was about a day, I think, or a
day and a half after that, that I met him again ; it was on Monday ; I can't remem-
ber the date of these conversations.

Now it appears from the record, page 2268, that this witness, after it
became known that he was subpoenaed by contestee, was induced by
some agents of the contestant to leave the city, so as to avoid process :

Q. Did he state anything to the effect that if he was paid he would skip the town?
A. Oh, yes; he said if Sessinghaus would put up the most money he would skip.

Eecord, page 2269 :

Q. And he did skip? A. I think he did skip, sir; I couldn't find him anywhere; I
think it was on Monday that I seen him last and had a conversation with him about
a quarter past eleven or twelve o'clock; he said that a man named Wiesehausen had
told him he wanted to have a conversation with him, and he was going down to the
corner of Fifth and Olive; so he walked down town to Fifth and Olive, and went up
to Burgess's office, where we generally went and read the papers ; he said, when he
arrived at Jaccard's (it was just about one o'clock, anyhow it was one o'clock when he
started down stairs) that Wiesehausen told him to come back. I don't know whether
that was the young man or not (indicating a gentleman present in the room).

Q. Is this the Mr. Wiesebahn that he saw at that place this gentleman sitting heje,
who is the agent of Mr. Sessinghaus? A. I don't know the gentleman ; he told me
that the gentleman was connected with the Sessinghaus contest case.

Q. Well, you never saw,him after that conversation? A. No, sir.

Q. Although you was sent to bring him here ? A. Yes, sir ; 'I had a subpoena in my
pocket for him.

Q. Did he also say that he had got the money from Wiesehahn and then skipped t

Eecord, page 2270 :

Q. Well, what did Lewis, one of the employes of Mr. Sessinghaus, tell you in regard
to Fulton skipping the town after he got the money from Wiesehahn, if any ? A.
Lewis told me this : he said I was a fool ; he said that there was money paid on the
Sessinghaus side, and that he (Fulton) had got it and skipped to Little Rock, Ark.

It farther appears that other witnesses familiar with the perjury of
most of the 86 were warned that if they testified to what they knew they
would be harmed.

Record, page 2295 :

Q. Where did he tell you that he was warned by threats of white men to keep his
month shut in regard to the manner in which this Sessiughaus testimony was worked
up ? A. That was in Reuben Armstrong's saloon in his place ; I was standing there
when he came rushing in, and, seeing me there talking with a gentleman, he called
me away and took me outside, pointed out this man, and says, "Do you know those
men there?" I says, "No; I don't know them." He says, "You had better be care-
ful ; they are following us ; one of them was in my room, and said the best thing for
him (Lewis) to do was to keep his mouth shut, because there was going to be some-
body killed in this Sessinghaus- Frost contest." I just told him to go right over there
and ask them what they wanted. I finally went over to the three, and this man
Flaherty says, "Yes, that is the man I saw there "

SESS1NGHAUS VS. FR' ST. 419

Record, page 2293 :

Q. Was the man with the blue spot under his eye about there? A. Yes, sir; he
was there; he is the man that Lewis pointed out as the man that had come to Lia
room and warned him of danger.

Q. If Lewis would come down and give away these secrets? A. If he testified in
the Frost side of the case.

Q. When was it that Mr. Fulton told yon that there was a deal of slick work done
on the part of the Sessiiighaus canvassers, and the reason he ceased to work for them
was because they wanted" him to do work that was too dirty for him to do? A. That
was when I met Full on on the corner of Ninth and Christy avenue, when he told me
that I should go and see Mr. Donovan.

Eecord, page 2296 :

Q. That he had qtiit work for Sessinghaus because they requested him to do a thing
that no man, white or black, should do ? A. He told me there was a great deal of
slick work going on, and he quit because he done dirty work enough, and he didn't
intend to do any more ; that was the reason he gave me for quitting Sessinghaus's
employ.

Q. When did he inform you that J. T. Smith had done this drilling, and that he
had seen him do it ? A. Well, I think that was in the same conversation that we had
there. It lasted about half an hour or so.

Jesse Woods (Record, page 2215):

Q. Who did he eay drilled them? A. Well, T. J. Smith. It was Smith, I know
that ; I know Mr. Smith if I saw him. I am not personally acquainted with him ; I
know him when I see him.

Q. What do you know in regard to negroes coming upon the stand two or three dif-
ferent times, under different names, and testifying in this case, thereby getting seventy-
five cents each appearance? A. There was seven men come to me who stated that it
didn't make any difference at all about the name ; they could just go there and swear
and come away and then go back again. They used to get their money on Carr street,
between Tenth and Eleventh streets, on the east side; as near as my knowledge can
recollect that is what they told me. There was nobody told me nothing else about
this ; I was not spoken to by any man except these fellows ; and they told me where
they got their money.

Q. What do you know in regard to negroes coming two or three times on the stand ?
A. I don't know any more than I have already stated to you. That is what they
told me theirs-elves ; that they come two or three times to get money. They showed
me the money they got six bits to a dollar. I just come again those parties.

Record, page 2216 :

Q. What did they say, Mr. Woods? A. They said they voted under different names,
out of that district or in that district, it didn't make any difference. They said they
had to say that they wanted to vote for Sessinghaus and they wasn't let, and then
they got their six bits for it. I never was up in this office before, gentlemen.

Record, page 2216:

Q. Now, did Lewis say anything in regard to these men saved from harm, provided
that they would do this give this class of testimony ? A. Lewis said he said to these
men, whom he wanted to go up there, to swear that they wanted to register and
vote these colored men ; he said to them that nothing could be done with them.
I said this wouldn't do me. I wouldn't go there and swear to a lie ; if I did I would
criminate myself. I did not believe he could find the poorest colored man in the city
that would do that that is, go on the stand and swear to a lie. But he went on to
say (hat he had taken these men out there, and that he had been given a quarter for
bringing each man up. I said that might be done by some colored people, but you
could never get me to do it.

Q. You don't seem to get my question ; what did he say about keeping them from
an} r harm for doing this thing? A. Lewis furthermore said that he told these parties
that they could not be hurt if they testified, because these that they testified for
would be afraid to hurt them. To me he was going to give the whole plan, if I
wanted anything to do with it. I told him I didn't want to know anything about it;
didn't want to have anything to do with it.

Q. This is Lewis we are talking about this man that was employed by the contest-
ant in this case, Mr. Sessinghaus? A. Yes, sir; he had been with Mr. Smith, and he
and Smith had done this; they were both working for Mr. Sesainghaus's side ; they
were going to defeat Mr. Frost. I believe he said they had twenty days to Frost's
ten.

420 DIGEST OF ELECTION CASES.

Q. Did he state whether Mr. Smith drilled these witnesses ? A. Yes, sir ; he said
they were drilled by Smith somewhere on Carr street, or Biddle street, between Ninth
and Tenth streets.

This testimony is of much significance if taken in connection with
that given by the officials men of prominence in the city of Saint
Louis who swore that no one was improperly refused registration on
that election day.

This particular election was provided with many safeguards. United
States marshals and United States supervisors were appointed to every
poll ; their duty is plainly stated in the United States statutes. They
were all furnished with special instructions by the officers of the United
States, and yet in all their reports to the chief marshal and the chief
supervisor there is not one single act of improper conduct reported at
any poll.

Inasmuch as this district, with one single exception, has always sent
a Democratic Representative to Congress, we sought particularly for
any grounds that could justify the claim that a Republican could have
to representing it. Although there are three thousand pages of tesri-
mouy, yet the committee itself in all that cannot find sufficient facts to
justify the unseating of the contestee without declaring as unconstitu-
tional the laws governing these elections.

We find these laws reasonable and valid and never questioned in any
court of that State. Hence we must find that contestant's cause should
be dismissed, and therefore recommend the adoption of the following
resolution :

I. Resolved, That R. Graham Frost was duly elected as a Representa-
tive to the Forty-seventh Congress of the United States from the third
Congressional district of Missouri, and is entitled to occupy a seat in
this House as such.

ADDENDA.
In matter of contest.

ANT, i

= S

GUSTAYUS SESSINGHAUS, CONTESTANT,

R. GRAHAM FP.OST, CONTESTEE.

In the third Congressional district of Missouri.

Now comes said R. Graham Frost, by his attorneys, Donovan & Conroy, and moves
your honorable body to dismiss the petition of Gustavus Sessinghaus, contestant
herein, for the reasons herein set forth

First. The same was not served on contestee within thirty days after the result of
the election in said third Congressional district of Missouri had been by the proper
authorities determined.

Second. Because the said notice of contest does not specify particularly the grounds
upon which contestant relies.

Third. The same does not state facts in such manner or form as constitutes a notice
of contest under the law for such cases made and provided.

DONOVAN & CONROY,

Att'ys for Contestee.
In matter of contest.

GUSTAVUS SESSINGHAUS, CONTESTANT,

vs.
E. GRAHAM FROST, CONTESTEE.

In the third Congressional district of Missouri.

Now comes said R. Graham Frost, by his attorneys, Donovan & Conroy, and moves
your honorable body to dismiss or strike out the second, third, fourth', fifth, sixth,

SESSINGHAUS VS. FROST. 421

seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth, seventeenth,
and eighteenth specifications in notice of contest in above-entitled cause, because the
same ,lo not set forth the grounds of contest with such particularity as to prevent a
surprise being practiced upon the contestee, or with such particularity as to put him
upon a proper defense.

DONOVAN & CONROY,

Att'ys for Contestee.

Served this answer and motions on answer in the city of Saint Louis, Mo., on the
21st day of January, 1881, by delivering a true copy thereof to Gustavus A. Sessing-
haus. the within person, contestant.

ISAAC M. MASON, Sheriff,
By JOSEPH GREENWALD, Deputy.

(Indorsed:) No. 2. Sessinghaus vs. Frost. Answer. Donovan & Conroy, att'ys
for contestant.

Before the House of Representatives of the United States, Forty-seventh Congress.

GVSTAVCS SESSINGHAUS, CONTESTANT, )

vs. >

R. GRAHAM FROST, CONTESTEE. )

In the matter of contest in the third Congressional district of Missouri.

Now comes R. Graham Frost, contestee, by his attorneys, Donovan & Conroy, and
moves that the dispositions taken for Gustavus Sessinghaus, contestant, before Frank
Kraft, esq., notary public, in the city of Saint Louis, Missouri, be suppressed.

And for grounds of this motion this contestee states that without the knowledge or
consent of contestee or his counsel

I. That since the taking of the same by said Frank Kraft, esq., they have been out
of his care, custody, and possession, and were not safely kept and preserved, as re-
quired by law.

II. That since the taking of the same they have been in the possession of strangers
to the proceedings, who were in nowise under the control of said notary.

III. That they have been left open and exposed on the tables in the office of the
counsel for the contestant, and by him, and by his office-boy, and by strangers to the
case, read, handled, written upon, and altered.

IV. That all of said depositions since the taking thereof have been withdrawn
from the care of the notary by one of the counsel for contestant, and were in his
office, part for many days and part for weeks, and were by him mutilated, changed,
and altered.

V. That the alterations and changes made were material in this, that a large por-
tion of the contestant's case was concerning the accuracy of the registration lists, both
with regard to the names and residences of voters, and the alterations in the spelling
of a name or the number of a house, to make which full opportunity and license was
given by the notary, might serve the purpose of contestant in establishing the validity
of voters for himself or impeaching votes for contestee.

VI. That for the reasons stated in the accompanying affidavits the integrity of said
depositions has been destroyed.

DONOVAN & CONROY,

Att'ys for Contestee.

Affidavits in support of motion.

GUSTAVUS SESSINGHAUS, CONTESTANT,

vs.
R. GRAHAM FROST, CONTESTEE

VNT, )

In the matter of contest in the third Congressional district of Missouri.

FRANK J. DONOVAN, being duly sworn, on his oath states as follows:
I was of counsel for R. Graham Frost in the Congressional contest aforesaid.
Some time prior to the 10th day of November, 1881, I heard that the testimony
takou in said contest had, since the same was given, been out of the custody of the
notary charged with the safe custody of the same; that it had been left with Lyne
8. Motcalte, jr., one of the counsel for Mr. Sessinghaus, and had bee-n handled and used
by him in the absence of the notary.

422 DIGEST OF ELECTION CASES.

On said 10th day of November last, R. Graham Frost called upon me, and I com-
municated to him the strange information I had received. While we were conversing
on the subject Lyne S. Metcalfe, jr., counsel for contestant came into the office. I at
once said to him, "Mr. Metcalfe, jou must have your brief on the contest prepared,
inasmuch as you have spent the summer reading over the testimony taken in the
case." He replied, "Oh, no! I did not have the testimony. I had only the deposi-
tions of one day, and that was the day the city ordinances were introduced. I wanted
to see if the ordinances were reported correctly."

I stated what I had been given to understand, but he denied that he had had any
of the testimony^ with the exception of that taken on one specified day.

Mr. Frost made a note of Mr. Metcalfe's answer.

On the following day Notary Kraft called on me on some business and I inquired
of Mr. Kraft if it was not the fact that Mr. Metcalfe had all of the testimony since
it was written up. He was very reluctant to answer, and noticing this, I resolved
to press the inquiry. He finally told me that before he had gotten out of bed he re-
ceived a letter from Mr. Metcalfe, request! ug him to be sure to see him before he
would call on me.

He subsequently said, " I do not propose to lie for anybody. The fact is that Mr.
Metcalfe had, after it was all written up, all of the testimony, with the exception of
that of one day."

I then stated that Mr. Metcalfe had denied that such was the case. He replied that
he could not help that ; that he had two letters in which he acknowledged the re-
ceipt of much of the testimony, and other letters requesting that more be sent to him,
and that all of the requests of his letters were complied with.

The notary further stated that Mr. Metcalfe ought to have known whether it was
right or wrong for him to permit the depositions to be out of his custody ; that Mr.
Metcalfe insisted on having them, and that he complied with his demand.

The notary further stated that he wrote much of the evidence from his notes during
his summer stay in Kansas ; that while absent from the city Mr. Metcalfe continued
writing for more of the testimony, and it was sent to him.

On being further interrogated, he said he had often seen the testimony lying open
on the desk of Mr. Metcalfe, and had seen his office boy handling it. He did not
know who else may have handled it, but it lay exposed, and any one going in or out
of the office could have access to it.

I asked Mr. Kraft if any alterations had been made, and he said that Mr. Metcalfe
had written on the margins, and had made corrections in names and localities, and
had -erased a portion of Dr. McCarthy's evidence, but that 1 e had reinstated the latter.

This affiant states that it will appear from the testimony that a great portion of the
contestant's evidence consists of misspelt names and places of residence ; that it was
the purpose of contestant to take advantage of typographical errors to disfranchise
voters; that it appears from the affidavit of Notary Kraft that he permitted Mr. Met-
calte to write the names and localities as he saw fit, and his changes were adopted ;
that such changes so permitted to be made address themselves directly to the merits
of the contestant's case, as it puts it within the power of Mr. Sessinghaus's attorney
to so spell the names of persons and write the numbers of their residence as to place
them outside of their proper election precincts, and thus disfranchise voters in suf-
ficient numbers to secure the election of Mr. Sessinghaus.

FRANK J. DONOVAN.
STATE OF MISSOURI,

City of St. Louis, 88 :

Sworn to and subscribed before me by the said Frank J. Donovan this twenty-
eighth day of December, A. D. 1881.

Witness my hand and official seal.

[SEAL.] C. D. GREENE, JR.,

Notary Public.

GUSTAVUS SESSINGHAUS, CONTESTANT, )

V8. >

R. GRAHAM FROST, CONTKSTEE. S

In the matter of contest in the third Congressional district of Missouri.

R. GRAHAM FROST, being duly sworn, on his oath states that :

I was present at the office of Donovan & Conroy, in the city of St. Louis, on the
10th day of November, 1881.

Mr. Donovan informed me that he had heard that all the depositions given on be-
half of Gustavus Sessinghaus in his contest had, since they were taken by Notary
Kraft, been in the poss'ion of his counsel, Lyne S. Metcalfe, jr. ; thai also ail deposi-
tions taken on behalf of myself had, at the request of Lyne S. Metcalfe, jr., been de-
livered to him by Notary Kraft.

SESSINGHAUS VS. FROST. 423

We were conversing about this extraordinary proceeding when Lyne S. Metcalfe, jr.,
entered the office.

Mr. Donovan said to him, " Mr. Metcalfe, you must have your brief on the contest
already prepared, for I understand that you have during the summer read over all
of the testimony."

His reply was, " Oh, no ! I di4 not have the testimony ; I had only my depositions
of one day, and that was the day the city ordinances were introduced. I wanted to
see if the ordinances were reported correctly. "

I made a note of this answer just as it fell from Mr. Metcalfe's lips ; and when Mr.
Donovan talked with him again about having understood that he had had the testi-
mony, he positively denied that such was the truth.

R. GRAHAM FROST.
STATE OF MISSOURI,

City of St. Louis, 88 :

Sworn to and subscribed before me by the within-named R. Graham Frost, this
twenty-eighth day of Deceinber, A. D. 1881.

Witness my hand and official seal.

[SEAL.] C. D. GREENE, JR.,

Notary Public.
EXHIBIT A.

ST. Louis, Aug. 4, 1881.
FRANK KRAFT, Esq., or HIS BROTHER :

I have just returned from the North and want more manuscript to work on. I re-
turn by messenger the testimony taken Feb. 1st, 2d, and 3d.

Please send me by bearer (or, if you are not at home, by messenger) as soon as pos-
sible the testimony for six or eight days following the 3d of Feb. I don't know what
dates they may be, for a Sunday probably intervenes. I guess you had better send
me 8 days' testimony, for I want to work pretty steady on it now.
Yours, truly,

L. S. METCALFE, JR.
EXHIBIT B.

ST. Louis, Aug. 8, 1881.
Mr. CRAFT:

DEAR SIR : I return you testimony taken Feb. 4th and 5th. I want to retain that
for Feb. 7th for a few days, as 1 have a copyist at work copying names from it. Will
return it when I return next batch. Please send me testimony for at least six days,
and, if you can, eight days. I finish it up so fast that it will keep me sending all the
time. And oblige
Yours, truly,

L. S. METCALFE, JR.
EXHIBIT C.

ST. Louis, Aug. 18, 1881.

Mr. CRAFT : I send you by messenger the testimony taken Feb. 7, 8, 9, 10, 11, and 12.
That is all I have received, except that for Feb. 14. The latter I am on, and will re--
tain until I return next batch. Please send by bearer, or as soon thereafter as possi-
ble, testimony for the following eight or nine days ; that is Feb. 15, 16, 17, 18, 19, 21, 22,
and 23. And oblige
Yours, truly,

METCALFE.
When does Frank return ?

GUSTAVUS SESSINGHAUS )

vs.
R. GRAHAM FROST, j

Contest in the third Congressional district of Missouri.

FRANK KRAFT, of St. Louis, Mo., being duly sworn, on his oath, states:
I was the notary public selected by Gustavus Sessinghaus by and before whom the
depositions for him in the above-entitled cause were taken. Said testimony was taken
at the office of Lyne S. Metcalfe, jr., esq.. southeast corner of Fifth and Olive streets,
in the city of St. Louis, and was transcribed by myself and assistants at my office on.
the northwest corner of Fifth and Olive streets, and at my residence, 2635 South Sev-
enth street, m the city of St. Louis aforesaid ; also a portion of the rontestee's testi-

424 DIGEST OF ELECTION CASES.

mony was by me transcribed near Channte, Kansas, to which latter place I took my
notes during the last summer, and continued the transcription of the testimony in
this contest. Before the close of taking this testimony, being some time before April
22d, 1881, I spoke to both counsel, asking them to alloAv me the use of the several
memorandums from which names and addrtanta had been read during the course of th
depositions, as I desired to correct the spelling of names of persons and of localities. On

or aboiit the day of , Ie81, after the close of the actual taking of evidence, I

again renewed my request, this time in writing, to the agent of Mr. Sessinghatis, and
in answer thereto was waited on by Mr. Metcalfe, of counsel for Mr. Sessinghaus,
who informed me that he would save me that labor the labor of going over his memo-
randum that he would like to take the testimony an transcribed, look over it, and correct
the spelling of proper names. What my answer was to this proposal I do not now re-
member; at any rate no testimony was delivered to him, because none had at that
time been fully completed (it having been dictated by me to several amanuenst s).
As 1 was not versed in regard to the rules which govern depositions taken in Congres-
sional contest cases, I made it a point to see Mr. Pollard, the other of Mr. Sessing-
haus's counsel, and from him received substantially these w r ords : "I don't see what
he wants with it; I am sure I don't want to touch it ; let him have it if he wants if.'"
Thus counseled by those whom I thought very well able to take care of their case. I
permitted Mr. Metcalfe from that time on, as rapidly as the manuscript was turned
in to me by my clerks, to have in his possession, for rerieiv and correction of the spell-
ing of proper names, all the manuscript of the contestant's case, with the exception of
one day in rebuttal, which I showed him, but which was not examined by him. I
wish again to state that in peimitting this inspection of my record by the counsel for
the contestant, I was acting under the impression that neither of the counsel for the
contestant would ask me to do that which would in any degree prejudice their C;IM\

From time to time, therefore, in pursuance of his request, I gave to Mr. Metcalfe
the several depositions taken on behalf of the contestant; upon returning these he
would receive others in their stead. While I was out of the city during the. summer
he wrote me frequently to my residence, requesting that depositions following those
already inspected by him be sent him. These requests were also complied with in
so far as the testimony requested by him was ready for review. Some of the letters
referred to above calling for such depositions I found on my return to ibis city, and I
append them hereto, marked Exhibits A, B, C, respectively. Others to the same pur-
port were destroyed or mislaid.

I called frequently at the office of Mr. Metcalfe, and saw the depositions I had given
him lying on his desk and tables, and saw his office-boy handling them. They were
open and exposed, and any person could have access to them. I did not object to
this for two reasons, the first being that I deemed him as much interested as nnself
in preserving their integrity, and the second reason being that I intended to go over
every page of the depositions after they were returned to me by Mr. Metcalfe.

On or about the 10th or 12th of November, 18cl, when I had completed my revision
and was about to forward the testimony to the clerk of the House of Representatives
at Washington, I received a note from Mr. Metcalfe early in the morning, before I
was out ot bed, asking me to please call at his office on that day at a certain hour
named, and to be sure and do so before calling at the office of counsel for Mr. Frost.
I did so call at the time stated, and found Mr. Metcalfe absent. I waited a little
while. I again called during the day, but was still unable to find him in. As I was
very anxious to complete the work and ship the testimony on to Washington, I there-
after called on Mr. Donovan, of counsel for Mr. Frost, with a view to procuring a
settlement of coutestee's bill, and was then asked directly by Mr. Donovan if Mr.
Metcalfe had not had all the depositions taken by the contestant, and I then made
true answer to his question.

The testimony as transcribed by myself and assistants was very voluminous, be-
ing some 16,000 pages if reduced to ordinary long-hand writing, but I exercised espe-
cial care to compare the depositions as returned to me by Mr. Metcalfe with my orig-
inal short-hand notes, and thus was enabled to see what changes had been made in
the manuscript. The only alterations so made by Mr. Metcalfe that I discovered,.
aside from the mere correction of proper names, was found in the testimony of one
Dr. McCarthy, a witness for the contestant, and these alterations consisted in simply
erasing certain profane words frequently made use of by that witness in giving his
testimony. When that witness was yet in the room, after giving his testimony,
counsel for contestant requested of me. as did also the witness, to leave out such pro-
fanity, but counsel for contestee positively refused to allow this. I then stated to the
witness that I would not write the objectionable words in full, but would simply in-
dicate them, and in this manner they appeared in my manuscript. I was therefore
surprised to find this language erased, and of course, immediately reinstated the lan-
guage as given. With this single exception, I do not now recall that any other
changes were made in the testimony aside from the simple correction of jiropr namrs,
and these corrections in many instances were made in the margin and in ink, and were
not erased by me; others, in pencil, will also still be found in the margin.

SESSINGHAUS VS. FROST 425

I will state also that had the request been made of me by counsel for the contestee
for a like privilege to inspect their depositions, acting under the same ideas I should
have suffered them to do likewise; but such Tt -quest was never made, and no single
page of testimony taken in this case was in the possession of or examined by the-
counsel for the contestee, Mr. Frost.

Inasmuch as it would seem from the course pursued by myself in permitting this
testimony to go into the hands of Mr. Metcalfe, that I was very negligent of my du-
ties as a notary, I desire again to add that I hold myself blameless in this matter,
having trusted to the opinion of counsel for contestant, who I felt assured would not
adopt or countenance a course of procedure in reference to their testimony which
would in anv manner prejudice or imperil the case they were seeking to establish.

FRANK KRAFT.
STATE OF MISSOURI,

City of St. Louis, ss :

Sworn to and subscribed before me this twenty-eighth day of December, A. D_
1881.

Witness my hand and official seal.
[SEAL.] C. D. GREENE, JR.,

Notary Public.

Before the House of Representatives of the United States, Forty-seventh Congress-

GUSTAVUS SESSINGHAUS, CONTESTANT, )

vs.
R. GRAHAM FROST, CONTESTEE. )

In the matter of contest in the third Congressional district of Missouri.

Now comes Gustavus Sessinghaus, contestant, and, by his attorney, H. M. Pollard,
files the following affidavit :

In the matter of the motion to suppress depositions of contestant.

SESSINGHAUS )

vs. >

FROST. )

Before the Committee of Elections, Forty-seventh Congress.

I, James Walter Metcalfe being duly sworn, on my oath say that I am 17 years-
old ; that I have always lived in the city of St. Louis ; that for some time past I
have been acting as clerk and office boy for Mr. L. S. Metcalfe, jr., attorney for Gust.
Sessinghaus ; that at various times during the mouths of Sept. and Oct., 1881, Mr.
Frank Kraft, the notary in the case of Sessinghaus v. Frost, came to the office of
said L. S. Metcalfe, jr., bringing with him parts of the testimony taken for contestant
in paid case ; that the said testimony, when received by Mr. Metcalfe, and when not
being examined by him in the office, was placed and carefully kept in the safe in said
ottire; that said safe is a strong one, to which the said Lyne S. Metcalfe, jr., only,,
and no one else, had access ; that Mr. Metcalfe seemed to exercise the greatest care-
and caution in the keeping of said testimony; that he repeatedly cautioned me to be
careful of it, and not allow any one to handle it; that while said testimony was in
said office the said Lyne S. Metcalfe, jr., examined it for the puvpose of briefing it;
that no one in or about the office except Mr. Metcalfe ever handled or had any-
thing to do with the said testimony; that the said testimony never was out of the
safe in the absence of the said Lyne S. Metcalfe, jr., from the office, except at times
when the said Mr. Metcalfe, having completed it, left it with me, to be called for by
the said Frank Kraft, and at such times the said testimony was carefully wrapped up
in brown paper and tied securely ; that the said testimony never was open in the said
office except while Mr. Metcalfe was present. Although I had nothing to do with
said testimony except as aforesaid, I frequently saw Mr. Metcalfe making examination!
of and briefing said testimony ; that I occasionally saw Mr. Metcalfe making pencil
marks on the margin of said testimony, and that I never saw him use a pen in con-
nection with said testimony, and that I never saw him make a change or erasure in
the body of said testimony. I further state that it has been my duty and custom to
remain constantly at the office of said L. S. Metcalfe, jr., from eight o'clock in the-
morning until five o'clock in the evening, and th-tt from my own knowledge the said
testimony was kept with the greatest regard to its safety and integrity.

J. W. METCALFE.

Subscribed and sworn to before me this 3d day of January, A. D. 1882.
[SKAL.] A. A. PAXSON,

Notary Public*

426 DIGEST OF ELECTION CASES.

(Indorsed:) Sessinghaus vs. Fros*. Affidavit in behalf of contestant. Affidavit of
J. W. Metcalfe. Filed by N. S. Paul, cl'k Com. of Elections.

In the matter of contest for seat in 47th Congress from the 3d Congressional district

of Mo.

OUSTAVUS SESSINGHAUS

v.
R. GRAHAM FROST.

Frank Kraft, being sworn, says he was employed by both sides in said cause to take
the testimony ; that after Mr. Metcalfe returned to him the testimony he carefully com-
pared every sheet and page with his original short-hand notes of the evidence, and
wherever the marginal suggestions of Metcalfe concurred with his said notes they were
.adopted by affiant and were by him written in in ink. That said marginal suggestions
were in pencil except, probably in one or two instances. That there were no altera-
tions made in the testimony while it was out of affiant's hands. That the only
thing done to it were marginal memoranda, which were made in pencil, save in one
or two instances, which affiant now thinks were in ink, and a pencil-mark drawn
under or across the profane words of witness Dr. Justin McCarthy. The testimony
was absolutely untouched in any way save as above stated. And affiant carefully
examined each sheet as he did it up to forward to Washington; and when the same
was placed in the box and shipped to Washington it was exactly the testimony
given and nothing else.

FRANK KRAFT.

STATE OF MISSOURI,

City of St. Louis :

Subscribed and sworn to. before me this 3d day of January, 1882.
[SEAL.] CHRISTOPHER P. ELLERBE,

Notary Public, City of St. Louis, Mo.

(Indorsed:) Sessinghaus . Frost. Affidavit in behalf of contestant. Affidavit, of
Prank Kraft. Filed by N. S. Paul, cl'k Com. on Elections.

In the matter of the motion to suppress depositions of contestant.

SESSINGHAUS )

vs. >

FROST. )

Before the Committee of Elections, Forty-seventh Congress.

I, Charles M. Switzer, being duly sworn, on my oath say that I am an attorney at
law in the city of St. Louis ; that I have for the past eight months occupied the same
offices with Lyne S. Metcalfe, jr., attorney for Gust. Sessiughaus ; that I am intimately
acquainted with the said Metcalfe; that though frequently during the months of
August, September, and October, l!*81, I observed Mr. Metcalfe making examination
of papers which I thought from their size were papers in connection with the con-
tested election case of Sessinghaus v. Frost, I never knew that the said papers were the
official testimony in the said case ; that I never handled or examined said papers ;
that I never saw any one handle or examine said papers except the said Metcalfe ; that
I never saw said papers lying around open or loose in said office except when in use
by the said Metcalfe; that the said papers seemed to be kept carefully by the said
Metcalfe, with no apparent chance of changing or tampering with them on the part
of any one. 1 further say that during the periods above indicated it was my custom
to be in said office during a large part of each day. I further say that I am a Demo-
crat.

C. M. SWITZER.

Subscribed and sworn to before me this 3d day of January, A. D. Hd2.

[SEAL.] A. A. PAXSON,

Notary Public.

(Indorsed:) Sessinghaus vs. Frost. Affidavit in behalf of contestant. Affidavit of
C. M. Switzer. Filed by N. S. Paul, elk' Com. on Elections.

SESS1NGHAUS VS. FROST. 427

lu the matter of the motion to suppress depositions of contestant.

SBSSIXGHAUS )

r. >

FROST. >

Before the Committee on Elections, Forty-seventh Congress.

I, Lyne S. Metcalfe, jr., being duly sworn, on my oath say that I am, and have been
since the 3d day of November, A. D. 1880, attorney for Mr. Sessinghaus in the con-
tested-election case of Sessinghaus t;. Frost ; that after the evidence in the case was
taken by the notary public, Frank Kraft, the latter requested of me the use of certain
memoranda made by me in the taking of testimony, for the purpose of correcting the
spelling of proper names which appeared in the testimony for contestant ; that hav-
ing use for the same at my office, and desiring also to brief the testimony, I requested
The said notary to bring to my office the testimony as copied from his short-hand notes
made at the time of taking the same, the understanding being that in the casual ex-
amination of the testimony for the purpose of briefing it, if I discovered any discrep-
ancies in the spelling of names or in the residences of voters between that manuscript
and the notes made by me at the time the testimony was given, I should upon the
margin of the sheets upon which the testimony was written indicate in pencil-mark
tue method of spelling and the residence as shown by my memoranda, it being further
understood that the said notary would go over all the testimony again, compare my
suggestions with his original short-hand notes, and if said suggestions were found to
Vie correct he would change the manuscript in accordance therewith. It was further
understood that I should keep such testimony, while in my possession, carefully and
free from any chance or opportunity for tampering. In accordance with this under
standing, the said notary left at iny office, in the city of St. Louis, on the southeast
corner of Fifth and Olive streets, from time to time, most of the testimony taken for
contestant, the said testimony being brought to my said office andreturned from there,
wrapped up carefully in strong brown paper and tied securely ; that at all times dur-
ing the day and night when such testimony was not being examined and liriefed by
me, and with the exception of once or t%vice when said testimony was wrapped up
awaiting the call of the notary as hereinafter stated, the same was carefully wrapped
up and locked securely in 'my safe in said office ; that said safe is a large iron
oae, with a combination lock ; that no one except myself has a key and access to
said safe ; that the said testimony was never at any time taken out of my office by
any one except the said notary or his agent, when said testimony was returned ; that
in my said office, and nowhere else, I made a hasty examination of said testimony
for the purpose of briefing it ; that in a number of instances where I found that his
manuscript differed from the memoranda made by me at the time the testimony was
taken, I indicated in the margin in pencil what my memoranda showed the testimony
to have been, merely to call the attention of the notary to the same, at the same
time drawing a line in pencil under the words which differed from my memoranda ;
that in no instance did I alter, change, or erase words or sentences or names in the
body of the said testimony, but merely made marginal suggestions, and that the testi-
mony itself was left absolutely intact by me; that I made no pen and ink corrections
whatever, and that in the case of one witness for contestant, as referred to in the affi-
davit of the notary, I drew pencil lines under certain very profane words used by the
witness, which words were in no respect material to the case, but that even in that case
I left the words intact, only drawing a pencil line under them. I further state that
I returned to the said notary the testimony absolutely intact and unchanged, leaving
to the notary to make the changes suggested only so far as they were found to agree
with his original notes. I further state that the notary afterwards assured me that
my suggestions were in most instances in harmony with his original notes, and
proper to be made. I further say that no one in or about my office, except my office
boy, knew the fact that I had such testimony there until after all the said testimony
was returned to the said notary and sent on to Washington ; that my said office boy
knew the valueof said testimony and the necessity of watching and keeping it safely ;
that while I was absent from my said office said testimony was in my said safe as
aforesaid, with this exception, that in one or two instances it was wrapped up and
carefully tied, a waiting the call of the notary; that in no instance did I leave said
testimony open on my desk during my absence.

I further state that in the examination of said testimony I used every precaution
and care to keep it safely and free from any possible tampering with, and that, as an
attorney, I felt the necessity of the utmost good faith and fair dealing, being only
desirous that the said testimony should be correctly reported so far as was possible,
and having leisure time during the summer mouths in which to prepare materials for
a brief.

428 DIGEST OF ELECTION CASES.

I further state that the use of the testimony at my office in the manner indicated
above was, according 1o the habit and custom' of attorneys in this city, a properone;
that it is a common thing for attorneys to take to their offices depositions and writ-
ten evidence for the purpose of making examination and preparing briefs, it being a
practice which no reputable attorney would take advantage of for the purpose of
changing testimony ; and without the strongest evidence of actual alteration, no
high-minded attorney would charge another with having committed so contemptible
an offense.

I furthes state that the said Frank Kraft, as notary, was employed by the contestee
as well as the contestant to take the testimony in this case.

LYNE S. METCALFE, JR.

Subscribed and sworn to before me this 3d day of January, A. D. 1882.
[SEAL.] A. A. PAXSON,

Notary Public.

(Indorsed :) Sessinghans rs. Frost. Affidavit in behalf of contestant. Affidavit
of Lyne S. Metcalfe, jr. Filed January 6, 1882. N. S. Paul, clerk of Committee on
Elections.

In the matter of the motion to suppress deposition of contestant.

SESSINGHAUS )

vs. >

FROST. )

Before the Committee on Elections, Forty-seventh Congress.

I, John R. Farrar, being duly sworn, on my oath say that I am an attorney at
law in the city of Saint Louis; that for the past two years I have had a desk in the
law office of Lyne S. Metcalfe, jr., attorney for Gust. Sessinghaus ; that I have known
the said Metcalfe intimately ; that my desk in said office has always been placed
close to the desk of said Lyne S. Metcalfe, jr , that at various times during the months
of August, September, and October I observed Mr. Metcalfe examining and abstract-
ing some papers, which I thought were papers used in the case of Sessinghaus r.
Frost ; that I never examined or in any way handled said papers ; that I never knew,
except as hereinafter stated, what the said papers were or that they were the official
testimony in the said case ; that Mr. Metcalfe seemed to be remarkably careful of the
manner in which he kept said testimony ; that I never saw said papers out of the safe in
the office except when Mr. Metcalfe was present and making an examination of them ;
that I never saw any one handle said papers except the said Lyne S. Metcalfe, jr. ;
that the said papers never were left open on the desk of said Metcalfe in his ab.-ence,
or in any other part of said office. I further say that I never knew the said papers
was official testimony in the said case, but oaone occasion during the aforesaid period
the said Metcalfe told me that he was getting up the brief in the Sessingl-aus-Frost
case ; that the papers he was using were important and should be safely kept, and
that he would be obliged to me if I would say nothing to any one iu or about the of-
fice as to what he was doing. I further say that it was my custom to n main in the
said office during said period almost constantly. I further say that I am a Democrat
in politics.

JOHN R. FARRAR.

Sworn to and subscribed before me this 4th day of January, 1882. My commission
expires June 29th, 18b5.

[SEAL.] FRANK OBEAR,

Notary Public, City of Saint Louis.

(Indorsed:) Sessinghaus rs. Frost. Affidavits in behalf of contestant. Affidavit
of John R. Farrar. Filed by N. S. Paul, clerk Com. on Elections.

GUSTAVUS SESSINGHAUS, CONTESTANT, )

vs. >

R. GRAHAM FROST, CONTESTEE, S

Before Committee on Elections, Forty-seventh Congress.

Now comes R. Graham Frost, by his attorneys, and represents that on this day
the committee adopted the following resolution :

"Resolved, That the motion of the contestee for the suppression of the testimony iu

SESSINGHAUS VS. FROST. 429

said cause be overruled and the testimony be ordered printed without prejudice to
either party."

This coutestee respectfully protests against said order to print, as the same cannot
be executed without prejudice to this contestee, for the reason that if the question of
tampering with the depositions is still open the very evidence of the changes, alter-
ations, and erasures will, in passing through the printer's hands, be destroyed or so
blotted, marked, and handled that no satisfactory investigation can be had.

This contestee protest that as alterations of only one class were examined, and if
it is proposed to investigate the many others not examined, that it should be done
now before these papers are worked over or handled by others.

Respe'ctfullv submitted.

R. GRAHA.M FROST,
By DONOVAN & CONROY,

His AtCya.

WASHINGTON, Jan. 17th, 1882.

(Indorsed:) Sessinghaus vs. Frost. Protest against the order to print. Filed Jan'y
17, '82. N. S. Paul, cl'k Com. on Elections.

GUSTAVUS SESSINGHAUS

R. GRAHAM FROST.

Contest in the Forty-seventh Congress.

Frauk Kraft, of the city of St. Louis, Mo., on his oath states that he was the notary
employed by contestant and contestee in the above-entitled cause.

That all, or very nearly all, of the transcript of the testimony taken on behalf of
the contestant was made by my several assistants and from short-hand notes dictated
to them by me.

That in many instances breaks and gaps were left in the transcript so turned in by
them, by reason of their imperfect notes or inability to read their notes, the same
being left to be supplied by myself when the work of revision was instituted.

That this imperfe t, partly open, uncompared, and unconnected copy of my assist-
ant's notes was the manuscript submitted to Mr. Metcalfe and none other.

That thereafter, the same being returned to me by Mr. Metcalfe, I began and com-
pleted my revision, comparing and correcting each page of the manuscript from my
original short-hand notes.

That in this work of revision, comparison, and correction I was in no instance
governed by the marginal notes made by Mr. Metcalfe, giving my original short-hand
notes the preference, save and except only in the spelling of proper names.

That I did not begin to revise and correct the depositions in .this case until after
their return to me by Mr. Metcalfe, and having once entered upon this work I used
my original short-hand notes, erasing, altering, and interlining as they showed the
depositions to have been given, and ini mediately thereafter signing and sealing each
day's proceedings; and no one single page of the depositions given in this cause was
ever again out of my possession until it was forwarded by me direct to the Clerk of
the House of Representatives, at Washington, D. C.

That the depositions of the contestee, Mr. Frost, were not at any time in the posses-
sion of Mr. Metcalfe, or any one else interested in this cause, until they were opened
and inspected at Washington.

That in determining the spelling of proper names occurring in the depositions given
on behalf of the contestee, Mr. Frost, I made reference to and had the use of original
memoranda made by counsel for coutestee before and during the progress of taking
said depositions.

FRANK KRAFT.

STATE OF MISSOURI,

City of St. Louis, 88 :

Subscribed and sworn to before me this 19th day of January, A. D. 1882.
[SEAL.] CHRISTOPHER P. ELLERBE,

Notary Public.

(Indorsed:) Affidavit of Frank Kraft. In case of Sessinghaua r. Frost. Referred
to 2d subcom. Filed Jan'y 24, '82. N. S. Paul, cl'k Com. on Elec's.

430 DIGEST OF ELECTION CASES.

NGHAUS )

VS.

IOST. )

SESSINGHAUS

t'8.

FROST.

Before Committee on Elections, 47th Congress.

Frank Kraft, being duly sworn, on his oath states :

It is not my intention in giving affidavits on the motion to suppress to change in
any respect the affidavit first made hy me in this matter. As I stated then, I desired
the use of memoranda from which names and address had heen read during the course
of the depositions, as I desired to correct the spelling of names of persons and of
localities.

When I called on counsel for contestee, Mr. Donovan, he allowed me to take what-
ever I needed or requested, but he did not know what use I made of same, or give me
any directions, or make any requests, and never interfered with me in any way
whatsoever in the faithful performance of my duty as an officer.

Lyne S. Metcalfe, jr., importuned me to let him have the testimony itself as tran-
scribed, and I did give him possession of it for review and correction of the spelling
of proper names. I trusted to his integrity to write correctly the names of persons
and localities as given by the witnesses. I could rely on my notes of testimony in
all respects but this, and hence I took Metcalfe's written suggestions, believing when
I adopted them that I was giving names and localities as they were given by the wit-
nesses on the stand.

FRANK KRAFT.

STATK OF MISSOURI,

City of St. Louis, 88 :

Sworn to and subscribed before me this thirtieth day of January, A. D. 1882.
Witness my hand and official seal.
[SEAL.] C. D. GREENE, JR.,

Notary Public.

(Indorsed:) 47th Congress. Committee on Elections. Gustavus Sessinghaus tv.
R. Graham Frost. Affidavit of Frank Kraft, made Jan. 30, '82. Filed Feb'y 1, '82.
N. S. Paul, cl'k Com. on Elec's.

ROBERT SMAIjIjS vs. GEORGE D.

FIFTH CONGRESSIONAL, DISTRICT OF SOUTH CAROLINA.

Contestant charges that the vote as cast was not truthfully set out in the statement
of the State board of canvassers ; that large numbers of votes cast for him did not
enter into the result as stated therein ; that large numbers of ballots were counted
for contestee that were not lawfully cast for him ; that polls were returned for
him that should have been rejected ; that a large number who desired to vote for
contestant were prevented from so doing by reason of violence and intimidation ;
and that United States supervisors of election were prevented from performing
their duties.

Held, That no legal election was held in Edgefield County, because the will of the
electors was suppressed by violence and intimidation, and the return must be
rejected.

That the vote of the other counties should be corrected as shown by the evidence, on
account of intimidation and violence and stuffing of ballot-boxes.

The House adopted the majority report.

SMALLS VS. TILLMAN.

431

JUNE 29, 1882. Mr. WAIT, from the Committee on Elections, submitted

the following

REPORT:

Your committee, having nad under consideration the contest for a seat in
the House of Representatives from the fifth Congressional district of
South Carolina, submit the following report:

This district is composed of the counties of Colleton, Beaufort, Barn-
well, Edgefield, Aiken, and Hampton.

The coutcstee, George D. Tilknan, holds the seat by virtue of a cer-
tificate issued to him by the governor, predicated upon the statement
of the vote of the district made by the State board of canvassers, which
is as follows :

FIFTH CONGRESSIONAL DISTRICT.

Names of candidates.

Counties.

1
1

tab

Colleton .

3,475

2, 776

Beaufort .

391

5,978

5,422

2,445

Edgefield

6,467

1,046

4,980

1,467

2 590

1 575

23,325

15, 287

STATE OF SOUTH CAROLINA,

Office of Secretary of Slate :

I, B. M. Sims, secretary of state, do hereby certify that the above is a true copy of
the vote for Congress in the h'fth Congressional district in said State, as returned by
the county board of canvassers for the counties composing the fifth Congressional
district, and which returns are now of record in this office.

Witness mj hand and the seal of State, at Columbia, this 16th day of February,.
A. D. Ih81.

[SEAL.] R. M. SIMS,

Secretary of State.

The contestant, Robert Smalls, contends that this does not represent
the vote actually cast for him, but that he is entitled to a large number
of votes that were not counted for him by the precinct managers, or,,
after having been counted by the precinct managers, were unlawfully
rejected by the county board of canvassers, and did not therefore enter
into the result as stated in the above table. And he further contends
that a large number of ballots were counted for the contestee that were
not lawfully cast for him, and that polls were returned for him that
should have been rejected. He also contends that by violence and
intimidation at various places in the district a large number of those
who desired to vote for him were prevented from doing so, by reason of
which polls that were counted for contestee should now be rejected.

It is claimed by the contestee that the State board of canvassers made
up their statement upon which his credentials are based from the state-

432 DIGEST OF ELECTION CASES.

ment of the county board of canvassers, and that this was the only legal
data necessary, and the 24th section of the act of 1868 is relied upon
as sustaining- that position. Under the act of 1868 the precinct man-
agers delivered the boxes containing the ballots and the poll-lists to the
county board of canvassers within three days af^er the election, and this
board counted them upon the following Tuesday and made up their state-
ments, transmitting them by mail, one each to the governor, comptroller,
-and secretary of State.

In view of a contest before the House these provisions became the
subject of severe animadversions, and in 1872 an act was passed pro-
viding that all elections shall be regulated and conducted according to
the rules, principles, and provisions therein and " all conflicting " acts
are repealed.

Now the principal provisions of this law are :

1st. That the ballots shall be counted by the precinct managers as
soon as the polls are closed, and that the boxes containing the ballots
shall be sent to the county board ; and, 2d, that a statement of the county
board of canvassers should be sent by a special messenger, with the re-
turns, poll-lists, and all papers appertaining to the election, addressed
to the governor and secretary of state. Under the law of. 1868 the bal-
lots were liable to be tampered with after the polls closed and during
the interval before they were counted, and the county board of canvass-
ers was wholly without check upon their statement.

The act of 1872 takes from the county board the counting of the votes
and devolves that duty upon the precinct managers, and requires that
it be done publicly at the closing of the polls. It also places a check
upon the aggregated statement of the county board by requiring that
the returns, poll -lists, and all papers appertaining to the election be sent
by a .special messenger, addressed to the governor and secretary of state.
To use the terms of the act itself, the "principle 7 ' contained in this
w provision" is a check upon the opportunity of the county board to
perpetrate fraud, and all acts in any way conflicting with the rules,
principles, and provisions are repealed. It is unquestionable that if
the State board is to make up its statement of the vote of the district
solely upon the statements of the county boards, aggregating the votes
of each of the counties, there is no check whatever upon the statements
of the county boards, and the " rules and principles " are defeated, and
there is no purpose whatever in sending by a special messenger " the
returns, poll-lists, and all papers appertaining to the election " to the
governor and secretary of state. This provision is a part of a remedial
statute, and is to be liberally construed, and all acts " in any way con-
flicting with its rules, principles, and provisions" are repealed. By no
<janou or rule of construction can this provision of the remedial amenda-
tory act be thrown away.

But if the section 24 of the act of 1868 is not thereby repealed, the
two acts must be construed in pari materia, and the State board of can-
vassers should make up their statement of the vote of the district from
the certified copies of the statements made by the board of county
canvassers, and from the precinct " returns, poll-lists, and all papers
appertaining to the election."

These, then, become together the data upon which the State board of
canvassers make up their statement whereon the certificate is based.
If it is based upon anything else, or only upon a portion of the data
prescribed by law, it is without legal validity as regards the election
of a member of Congress ; and this, wholly independently of the ques-
tion as to whether this is done fraudulently, ignorautly, or is a mere
casus omissus.

SMALLS VS. TILLMAN. 433

The party relying upon such a certificate must prove his vote aliunde.
In this case there is a peculiar and most forcible illustration of the
wisdom of this requirement that the precinct return and poll-list shall
accompany the statement of the board of county canvassers, for this
board has no judicial authority. This is admitted by counsel on both
sides. Yet in two counties they have assumed to exercise judical pow-
ers in throwing out entire boxes and in not counting the vote polled for
Congressman at others, and without any pretense of cause. And in
consequence of the failure of the county boards of these counties to
send to the governor and secretary of state the precinct returns and
poll-lists,, as they are specifically required to do by law, the official data
is wanting upon which to add the vote at these several boxes. In the
three counties of Edgefield, Colleton, and Barnwell the legal data by
which the frauds of county boards of canvassers is intended to be de-
tected and corrected, and which 'forms an important part of the basis
on which the member's certificate of election is based, has been deliber-
ately withheld and suppressed. There is no official data by which to
fix the vote at polls which have been fraudulently omitted from the
count, in contravention of the plain letter of the statute, and the con-
struction placed thereon for years past by the court of last resort in that
State. And, on the other hand, there are polls which should be rejected
Ir 3in the count for gross illegalities and fraud in the management thereof,
and others for violence and intimidation ; but, in consequence of the
illegal suppression of the data required by law, it is impossible to as-
certain how these polls were counted in the statement as made up by
the State board from the aggregate furnished by these three county
boards.

The principle is correct and sound, and is well settled, that when the
reliability of the official statement is destroyed, whether for fraud, for
ignorant neglect of legal duty, or because made up from insufficient,
illegal, or fraudulent data, it must be disregarded as evidence. But the
vote of the electors is not lost because the pretended statement of it
is defective, illegal, and unreliable, but it may be proven aliunde.

it is clearly established that the State board had not " the precinct
returns, poll lists, and all other papers appertaining to the election"
before it at the time it made up its statement on which the certificate
of election was given to contestee ; and it is equally well established
that that board made up its statement merely from the aggregated
statement of the county board, without any of the legal data with which
to correct their errors or detect their frauds. It is strenuously claimed
for the contestant that these returns, poll-lists, &c., were essential
factors, and that the want of them destroyed the validity of the state-
ment of the State board absolutely, whilst for the contestee it is urged
that the law of 1868 remains unchanged as to the State board.

The committee has not deemed it necessary to decile this legal ques-
tion, as there are other questions, both of law and fact, which enter into
the case, and, as they think, control it.

The contestant, however, claims that if all three of these counties are
not rejected for the reason above contended for by him, that still the
county of Edgefield must be for another reason, viz, that by reason of
violence, intimidation, and fraud practiced at the various precincts of
this county the legal vote has not been and cannot be ascertained. On
this proposition the committee has examined the record most carefully.
Whilst your committee would be glad to know that this county stood
alone in this respect, it is true that the spirit of violence and lawless-
II. Mis. 35 28

434 DIGEST OF ELECTION CASE.

ness was rife throughout five comities iu this district, everywhere man-
ifesting a fixed purpose to prevent the colored people from voting in
the first place, and then to avoid a fair and honest count of the vote
which had been polled. In the excesses to accomplish these ends the
adherents of the contestee in this county knew no bounds. Beginning-
at the court-house, and extending to every portion of it, a purpose to
disregard the law iu order to defeat the rights of the majority was
boldly carried out. At Edgefield Court-House the poll is proven to
have been counted 763 for contestee and 11 for contestant. If we elim-
inate from the statements of the contestee's witnesses their opinions
and other irrelevant matter, there is no conflict as to the material facts.
The poll was held up-stairs in the court-room, and one of the double
doors was securely closed, whilst the other, 18 inches wide, was kept by
a Democratic guard, so that those Eepublicans who succeeded in run-
ning the gauntlet of the one hundred Democrats who thronged and
crowded the staircase were held here and subjected to further insult
and violence until they could struggle out, with their clothes cut, whilst
the gallery or porch over the outside entrance was filled with Demo-
crats armed with brickbats, and the Masonic Hall opposite was occu-
pied by a military company, the Edgefield Eifles. To call this an elec-
tion is a reflection on American institutions.

At Mount Willing the poll was held inside of a house, the entrance
guarded by Democrats. "Republicans were kept back, Democrats ad-
mitted," until the Democrats had all voted, when a party of mounted
Democrats rode up, and, opening fire, drove the Republicans from the
poll. Two hundred voters were driven off, and the supervisor prevented
from discharging his duty (p. 193).

At Meeting Street (p. 207) and Cheatham's Store (p. 204) the same
course was adopted, and at both of them the supervisor was prevented
from discharging his duty.

At George's Cross-Eoads the Republicans were kept back by mounted
Democrats crowding the polls, whilst at Pleasant Lane coutestee's own
witness admits that there were as many as fifty Republicans at the
polls, but that only one Republican vote was counted. At Red Hill
and Rich ardsonville the supervisors were interfered with and prevented
from discharging their duties, their commissions and papers taken from
them, and they were driven away, whilst the voters were hindered by force
from casting their ballots. At Landrum's Store the supervisor's poll-list
was taken away from him and 76 fraudulent ballots stuffed into the box,
whilst at Johnston's, after keeping the Republicans from the polls by
crowding them until about two o'clock, the Democrats commenced a
general disturbance, ran off the supervisor, and opened tire on the Re-
publicans, in which a colored Republican was shot in the head and his
dead body left on the ground. At this poll 800 voters were driven off. Dur-
ing the day squads of armed Democrats were kept riding from precinct to
precinct, under the pretended apprehension that the Republicans were
going to seize the polls, but their conduct and bearing leave no room
for doubt that their sole purpose was to prevent the supervisors from
acting and to awe and intimidate the voters and drive them away from,
the polls ; and they were successful in their efforts to this end.

At Tolbert's Store the supervisor was not allowed in the room where
the poll was held; armed bodies of Democrats crowded the polls, ob-
structed the electors, and 150 were prevented from voting.

At Red Hill the supervisor's commission and papers were taken from
him and destroyed. With the boxes containing the ballots, and from all
but one of them the poll-lists also, before them the county board refused

SMALLS VS. TILLMAN. 435

to count or include in the statement the vote of five precincts, to wit,
Etheridge's Store, Perry's Cross- Eoads, Coleinan's Cros-Eoads, Caugh-
men's Store, and Liberty Hill. In this they clearly transcended their
powers under the law. The testimony most conclusively shows that in
the county the whites were Democrats and the colored people were
voting or trying to vote the Republican ticket. The testimony shows
that 3,020 Republicans were at the polls in this county anxiously trying
to vote and who were prevented by force from doing so. The contest
was to keep the colored people from voting, for the nature of their vote
was unquestionable. The census taken the year of this election shows
whites over 21 years, 3,553; colored, 5,648. Yet it is claimed the con-'
testee received 6,467 votes and the contestant only 1,046. Had every
white voter in the county, therefore, actually voted for the con testee he
could not have gotten this vote by 2,877, and the utter absurdity of the
proposition that this or any considerable number of colored people
voted for the con testee is fully established by the testimony ; and this
fact also illustrates the collusiveness of the proofs which have in-
duced your committee, after a thorough and careful consideration of
the testimony, to conclude that there was no legal and valid election
held in the county of Edgefield on the 2d of November, 1880. That the
will of the electors was suppressed by violence and intimidation, and
that the pretended count and canvass of the vote is involved in an inex-
tricable confusion of fraud, and that the records which should establish
the truth in regard to it have been illegally suppressed.

REFERENCES TO TESTIMONY IN EDGEFIELD CO.

As to Edgefield Court- House :
Testimony of W. E. Lynch, p. 432.
Testimony of A. J. Lee, pp. 433, 434.
Testimony of Paris Simpkins, pp. 443, 459.
Testimony of Norman Youngblood, pp. 453, 456.
Testimony of L. Cain, p. 457 et seq.
Testimony of Jesse Jones, p. 465.
Testimony of M. O. Sheppard, pp. 498, 500.
Testimony of D. E. Ikirisoe, pp. 528, 529.
Testimony of Lewis Jones, pp. 517, 518, 519, 521.
Testimony of G. W. Wise, p. 536.
Testimony of Charles Holmes, p. 694.
Testimony of Wiley Weaver, p. 690.
Testimony of E. T. Anderson, p. 504.

Mount Willing:
George Valentine, p. 417.
David Graham, p. 438.

Meeting Street:
W. T. Tillman, pp. 207, 430.

Cheatham's Store :
Brister J. Yeldell, p. 428.
Harry Oliphant, p. 451.
John Brunson, p. 538.
D. I. Mitchell, p. 701.

George's Cross-Eoads :
Westley Long, pp. 424, 425.

Eed Hill :
Anderson Carter, p. 442.

Eichardsonville :

436 DIGEST OF ELECTION CASES.

Richmond Morley, p. 435.

Pleasant Lane :
James P. Norris, p. 541.

Talbert's Store :
Lewis W. Collins, p. 441.

Landrum's Store :
Nathan Sullivan, p. 82.

Johnston's :
"William Scott, p. 546.
Willis Vermillion, p. 85.
Butler Burt, p. 86.
John Hammond, p. 87.

EDGEFIELD C. H.

W. E. Lynch testifies (page 432) as follows :

Was one of the commissioners of election for Edgefield County.

Q. To what political party did the managers belong? A. Mostly to Democrats.

Q. Were any Republicans appointed ? A. Not that I know of.

Q. Did or did not the board of commissioners, as far as possible, select Democrats
>fbr managers ? A. They did.

Q. Acting as a board of county canvassers, did the commissioners return all the re-
turns or ballots from each and every precinct in the county ? A. They did not.

Q. How many and what polls were not canvassed? A. They were five Ethridge's
Store, Perry's Cross-Roads, Coleman's Cross-Roads, Cawghmau's Store, Liberty Hill.

Q. Why were those polls not counted ? A. On account of irregularities.

Q. In what did those irregularities consist? A. Managers failed to make a return
or send any poll-list.

Q. Were these ballots counted by the board of county canvassers ? A. Not by the
county board.

G. Do you know how many ballots these ballots or either of them contained ? A.
No, sir.

Q. Did you see the boxes opened? A. I did.

Q. What was the appearance of these boxes when opened ? A. Nothing in them
but ballots ; one was full, other partially filled.

Q. Under what law did the board act in rejecting these polls ? A. I don't know
what law ; but we wire advised that we had nothing to go on.

Q. Who gave you this advice ? A. I don't remember now.

Q. Were they Democrats or Republicans? A. Democrats.

.Andrew J. Lee testifies (page 433) as follows:

Q. Did you hold any official position at the late election, and, if so, what? A. I
was one of the commissioners of election for Edgefield County.

Q. From what political party were the commissioners of election appointed ? A.
The Democratic.

Q. Were any Republicans appointed ? A. None.

Q. At the canvassing of the votes by the commissioners, were any polls not can-
vassed ? A. No, sir; five were not counted; don't remember the polls.

Q. Why were they rejected ? A. Because they were not returned according to law.

Q. Was there any other reason assigned by either of the commissioners, or any
other person in the presence of the board, why you should not count them ? A. None
u all.

Q. When these boxes were opened (five) what was their appearance ? A. Some did
not have their returns in them, and one had nothing but ballots in it ; one was nearly
full, the others about half full.

And on page 434 as follows :

Q. What ticket did you vote at the last election ? A. I did not vote.

Q. What ticket did you vote 1878 ? A. I did not vote.

Q. What in 1876? A. The Republican.

Q. Why did you not vote at the last election? A. Because the generality of ill
Republicans did not vote, and I did not want to after they all left.

Q. Was not your Republicanism strong enough to cause you to vote that day ? A.
Yes, sir, but I did not think it would do any good. I was invited to vote that even-
ing.

SMALLS VS. TILLMAN. 437

Q. Why did the Republicans not vote ? A. The place was crowded that morning
by Democrats.

'Q. Could they get to the polls? A. Could not get there till the Democrats got
away.

Q. Were there many Republicans present ? A. I thought about two thousand men
that morning.

Q. Did many of them go away without voting ? A. The greater number ; nearly all.

Q. How many voted at Edgefield poll? A. I don't remember but very few.

Q. Where was the poll held? A. I don't know.

Q. Did you attempt to go into the poll? A. No, sir.

Q. Were any men present in uniform or red shirts? A. Yes, sir; some red shirts.

Q. Many ? A. About half the number of Democrats that were in the village had
on red shirts.

Q. About how many Democrats ? A. Three or four hundred.

Paris Simpkins testifies (p. 443) as follows :

Question. Were yo^i in the town of Edgefield on the night before the last election ?
Answer. I was.

Q. Did anything unusual occur during that night? A. Something certainly very-
unusual for this community. There were quite a number of armed men in the town
of Edgefield, who paraded up and down the streets, all mounted, firing off their pistols,
yelling in the most hideous manner. I was on the street myself, and desired to get
back to my home, but was afraid to go back on the front street, as I came, for fear
that I might be recognized and shot ; not that I had done anything to be shot for, but
knowing that I was regarded a leader of the Republicans of the county. It was be-
cause of this position that I was apprehensive of danger.

Q. How long did this firing continue ? A. It continued almost incessantly for five
or teii minutes.

Q. What was the object of it? A. It occurred to me the object was to effectually
intimidate the Republicans of this community. At any rate, I would say that I was
very affected by it.

(Objected to.')

Q. Were these men in bodies or singly ? A. They generally moved in solid bodies.

Q. Did any one appear to be in command ? A. Yes, sir; they were evidently com-
manded by some one, because I- could hear the orders given. '

Q. About how large was this body ? A. I would judge that there were between
three and four hundred men.

Q. Was this before or after dark ? A. Just after dark.

Q. Could yon distinguish them by their faces or clothing ? A. I could not by their
faces, but by the flashes of pistols could tell that some had on red shirts.

Q. Do you know rf these men resided in the town of Edgefield ? A. They were all
strangers to me.

Q. Were yon present at or near the poll in Edgefield Court-House on the day of
election ? A. I was.

Q. State what time you arrived at the poll, how long you remained, and all that
occurred there or in the vicinity that you saw or heard during the day. A. I arrived
near the poll about 7 o'clock. I then understood that the box was up in the court-
house. The entrance to where box was was densely packed by Democrats, who kept
their positions, which rendered it utterly impossible for me or any other Republican
to go in and vote without precipitating a riot or row in trying to elbow his way
through the crowd. I heard such words as these: "Boys, hold your positions";
" Stand firm." I also saw some Democrats on the ground pitching rocks or brickbats
up to the other Democrats who were upon the porch of the court-house. Of course
they caught them and held them. There appeared to be imaginary line drawn just
in front of the court-house down to the ground. There were Democrats who walked
up and down this line, and as the Republicans would come toward the court-house
they were told just here not to go any further. I noticed this matter with peculiar
interest. There appeared to be an officer in charge of line. The officer who I allude
to was dressed in a very peculiar suit of clothes. I have no recollection of ever seeing
such a suit before. As the Republicans came into town it seemed to cause quite a
stir among the Democrats in and around the polling place. I saw quite a number of
Democrats rendezvousing in Masonic Hall ; they carried their guns or rifles with them.
They did not go up in a body, but went two and three together. Several times dur-
ing the morning there seemed to be some excitement; then I could see some of these
men who were in the hall rush to the windows in a menacing attitude. I then left
the vicinity of the box, and I urged other Republicans to leave also, as I was sure
they could net have a lair expression at the ballot-box of their choice from what 1
had seen. They did leave without voting.

438 DIGEST OF ELECTION CASES.

On cross-examination as follows (p. 459):

Q. You said you knew, from the couduct of Republicans generally, and from the fact
that you knew some of the leaders of clubs here on election day, that the '2,000 men
were 'Republicans. Tell me the difference iu couduct of Democrats and Republicans.
A. The oul.v line of distinction that I can draw is that the Democrats usually wear
the red shirt ; and further, all the white men are usually mounted, and the most of
them are generally armed and always in charge of the ballot-box, and they generally
congregate together, while the Republicans are colored men, with but very few ex-
ceptions, and they usually stick together.

NORMAN YOUNGBLOOD testifies (p. 453) as follows :

Q. When were the most people about the polls ? A. About nine o'clock.

Q. How many people were there at this timef A. From twenty-five to twenty-
se\ en. hundred, I judge ; around the park and stores were covered with them, and in
the park.

Q. What part of this crowd were Republicans and what part Democrats ? A. About
twenty-five hundred Republicans and about one hundred and fifty Democrats.

Q. How were the Republicans dressed f A. In ordinary clothes.

Q. And the Democrats ? A. About one-third in red shirts, and one in a calico suit,
and the rest were in citizens' clothing.

Q. Did you see any arms about the poll ? If so, who had them, and what were
they? A. Yes, sir; a double-barreled shot-gun on the court-house steps, a sixteen-
shooter under the porch ; I saw four pistols in men's hands, and the best quantity of
Democrats had pistols on them ; and I saw two more shot-guns on the street, and I
saw two or three dozen Remington rifles.

Q. Who had these guns ? A. The people ; the ones I take to be Democrats.

Q. Did the Republicans have arms ? A. Yes ; I saw two pistols.

Q. Did you vote ? A. No, sir.

Q. Why not ? A. There was a line drawn across before the steps in front of the
poll ; crowd of Democrats were on the steps clogging them up, and a man with a cal-
ico suit on was iu front of the steps, and whenever a colored man would try to vote
he would tell them to stand back, you can't vote here ; the white people pushed
through the crowd and got to the polls.

Q. Were any persons assisting this man to keep the colored people away? A. A
good many white men were in front of him on the ground, who also would tell the
colored people to stand back, ypu can't vote here yet.

And, redirect (p. 456) :

Q. On your cross-examination you said, in answer to a question "Could you have
voted in the afternoon?" that you could if you had a mind to go through men that
you thought would not interfere with you. What do you mean by this ? A. I had
been sure men like the citizens here in Edgefield village were up there, and all the
men like them, I would have gone up and voted. As objection had been made to the
Republicans to stand back, and seeing the angry people on the steps that I did not
know, I would not go up there.

L. Cain testifies (p. 457) as follows :

Q. Could Republicans hold public meetings without fear or molestation in this
county ?

(Objected to as matter of opinion except as to himself.)

A. As to myself I was afraid to hold public meetings, and was told by prominent
Republicans that they thought a mass-meeting would be treated by Democrats just as
they were in 1876. It is well known that our meeting on l*2th of August, 1876, was
broken up by the Democrats, and that we held no other mass-meeting during that
campaign save one, which was attended by a United States commissioner and United
States marshals. When the last meeting was held there were six or seven companies
of United States troops in the town.

Q. In what way the Republicans organized during the last campaign ? A. They
were organized into Garfield and Arthur clubs. I had about 48 of these clubs in the
county, ranging in number from 2o to 200 iu each club. These clubs were all over
the county, having been organized by precinct chairmen by my direction.

Q. Have you any means of knowing how many Republicans belonged to and acted
with these clubs ? A. I have, as a list from each club was brought me by the precinct
chairman.

Q. Did you attend any of these clubs? A. Yes, sir; I did; I attended about five
of them.

Q. From the party organization and your sources of information and your knowledge
of the voters of Edgefield County, what result did you have reason to expect on the
day of the election ?

SMALLS VS. TILLMAN. 439

(Objected to.)

A. I had reason to expect a great Republican triumph, as a great many Democrats
had told me previous to the election that every man would be allowed to vote, and that
there would be a fair count; this was my belief before the appointment of managers
by the commissioners of election, but when they met and appointed all Democrats,
thereby giving Republicans no representation on the boards of managers, my opinion
became somewhat changed.

Q. Was there anything in the numerical strength of the two parties which caused
you to expect the Republicans to carry the county ? A. I had no means of knowing
the numerical strength of the Democrat party, except what was furnished by the cen-
sus of 1880 ; that census showed the colored men in Edgefield would be about 2,000 ma-
jority, and that colored men in Edgefield are Republican ; and I am satisfied, if they
had been allowed to vote untrainmeled, would have been a larger Republican vote
polled in Edgefield in 1*80 than was polled in any previous election.

(Objected to as a matter of opinion.)

Q. Were you in the town of Edgefield on the night before the election t A. I was.

Q. Did anything unusual happen that night; if so, what? A. I came in town
about one-half hour by sun ; at that time, and until about 8 o'clock, white men, dressed
in red shirts and mounted, came in from two or three directions ; some had guns, some
pistols; about dark quite a number of these men took possession of the court-house ;
soon after they went in I heard the firing of pistols and guns from the porch of the
court-house ; when this took place I thought it advisable for me to leave for home,
and did so.

Q. Were you in town on the day of election ? A. I was.

Q. Were the voters allowed to cast their ballots freely and without molestation from
any one; and if not, how and by whom were they prevented! A. If a voter was
known to be a Democrat he had no trouble whatever in getting to the polls, but up to
21 minutes after 8 o'clock not a Republican vote had been polled. Why I am so pre-
cise about the time, I met General Butler near the court-house steps and complained
to him about Republicans being kept from voting ; he said it was early yet, I suppose
very man will get to vote. I told him the Democratic party had been voting all the
morning. I then pulled out my watch and showed him what time it was ; he looked
at his watch and he too was 21 minutes past 8.

Q. Did you see any arms anywhere near the polls that day? A. Yes ; I saw quite
a number of pistols in the hands of red-shirters while the voting was going on, and
from the porch and windows of the Masonic Hall, the piazza of the printing office,
from the store door now occupied by the joint-stock company, and on thestreets, were
quite a number of white men with guns and pistols in their hands ; most of these men
had on red shirts.

Q. Do you know of any persons who did not or could not vote that day ; if so, how
were they prevented? A. Quite a number of Republicans, myself among them, went
near The court-house in order to get to vote ; when within about five or six yards of
the court-house steps I was shown a line that had been drawn; the red shirters were
ou the court-house side of the line, and quite a number of colored were on the other
side. I walked to the line to see if they would allow me to cross, and was told by a
red-shirter, who appeared to be a sentinel, to stand back. I went back about tweuty-
fi ve or thirty yards, and remained there for two hours, I guess, watching the progress of
the election. During this period about six or eight colored men went up, three at a
time ; seeing they staid up there so long, I timed three of them ; they staid 20 minutes
by the watch. About 12 o'clock a row took place between a white and colored man,
and believing that I could not vote there with safety, and seeing, too, that one of the
colored men who had been up had Vm coat cut all to pieces with knives, I left there
and returned no more during the day; I did not vote.

Q. How many Republicans were at the polls at any time while you were there ? A.
Wf 11, sir. I approximate them at 2,000.

(Objected to.)

Jesse Jones, United States supervisor for Edgefield Court-House, gives
the following account of the election at that precinct (see p. 465) :

Q. Where was the box placed? A. Upstairs, in the court-room, within the railing,
about fifteen feet from door; there is a passage-way, about four feet long, from the
porch door to the court-room door.

Q. How wide is the porch ? A. About four or five feet wide.

Q. When the poll opened how many people, and to what parties did they belong,
who were inside the polling places, other than the managers, clerk, and supervisors?
A. When the poll opened there were no others inside the rail ; about twenty or
twenty-five inside the room all Democrats.

Q. At what time did you arrive at the poll ? A. About half past four in the
morning.

440 DIGEST OF ELECTION CASES.

Q. Were any persons in the court-house then, on that floor ? A. Yes, sir.

Q. Do you know how many, and who they were ? A. 1 suppose about one hundred ;
all Democrats.

Q. When the poll opened, were there any persons in the room where the box was,
in uniform of any kind, or with arms of any description? A. There was, Democrats
with red shirts ; I suppose about ten or fifteen in number with arms ; about forty or
fifty with red shirts on ; some double-barrel shot-guns, some pistols.

Q. Were any persons within the rail with uniforms on after poll opened ? A.
No, sir.

Q. Were any persons within the rail who had arms? A. There were arms inside
the rail, in the prisoners' dock, about one foot from the ballot-box.

Q. What kind were they, and to whom did they belong ? A. There were three
double-barrel shotguns ; I cauuot say to whom they belonged.

Q. How long did these guns remain there ? A. About two or three hours.

Q. Who removed them ? A. I saw some gentlemen come in a"nd take them out.

Q. Do you know who caused their removal ? A. It was caused by some man on the
streets raising a row by drawing a pistol ; and they were taken out by parties who
were in the room.

Q. Were the parties who took them out election officers? A. Yes, sir.

Q. W T hat officers were they ? A. Democratic supervisors.

Q. Do you know if either of these guns belonged to, or was in custody of, either of
the managers or the clerk ? A. I can't say.

Q. How many doors between the porch and ballot-box? A. Two doors.

Q. Were these doors kept open all day ? A. Outside door was a double door, each
of which was about one and a half feet wide; only side of door was open, the other
was shut ; the inside door was open ; the iuside one was a gate to a railing.

Q. Did you keep a poll-list ? A. No, sir.

Q. Why not? A. I did not think it would be safe for me to do.

Q. Why did you think it unsafe? A. Because, if they had seen me keeping a poll-
list I would not have been allowed to stay there (objected to it as matter of opinion),
as I was told by Democrats if I attempted to make a report I would not be allowed
to act as supervisor.

(Objected to.)

Q. Car* you say how many voters voted that day ? A. About seven hundred and
sixty-three or seven hundred and sixty-nine.

Q. How many colored men voted ? A. About fifteen.

Q. How many Republican votes counted by the managers ? A. Eleven.

On page 466 :

Q. Did all the voters have free access to the polls ? A. Did not, because one side
the front door was barred, and the Democrats stood on the porch with pistols and said
that no damn negroes should vote there.

Q. How long did this continue? A. It continued till 4 o'clock in the afternoon.

Q. Did this in any way prevent any voters from approaching the ballot-box and
voting ? A. It did, Republicans.

Q. How, then, did the eleven Republican votes get into the box? A. They came
up to the door, which was barred across with two bars, and the managers said let in
one colored man and one white. They would let in one colored man and three white,
until that number fifteen was exhausted. No more colored men would or could
come in.

Q. What time did they commence letting the colored men in in this way ? A. About
9 o'clock.

Q. Had any persons voted before this? A. Yes, sir.

Q. About how many ? A. About thirty-five or forty whites.

Q. Why did the voting proceed so slowly ? A. I can't tell why.

Q. Were there many Republicans around the poll attempting to get in to the poll ?
A. Yes, sir ; a great many.

Q. About how many ? A. Suppose about 2,000.

Q. From the action of the men on the steps and porch within the court-room, and
the officers of election, could these men have deposited their ballots had they seen tit
to do so ? A. Could not.

Q. Was it peaceable and quiet all day at the poll, and did you see any evidence of
violence ? A. It was not; I saw pistols drawn by Democrats on Republicans, and I
saw Democrats picking up large brickbats and saying, "If you damn negroes attempt
to come up to vote you will catch these" (referring to the brick they had in their
hands).

Q. Do you know of any ballots being cast on that day by persons who were minors,
non-residents of the county, or by persons who had already voted once? A. I know
of no minors; I do know of non-residents voting, and I know of parties voting more
than once.

SMALLS VS. TILLMAN. 441

Q. How do you know they were non-residents T A. I know them well, and know-
where one lives in Georgia. I know of a great many who voted more than once ; they
came up and voted, and would sit around the room and would then come up and
vote again.

Q. Did any vote more than twice ? A. Yes.

Q. More than three times T A. Yes, sir.

Q. More than four times ? A. Yes, sir.

Q. More than five times? A. Yes, sir.

Q. More than six times f A. Yes, sir.

Q. More than seven times? A. Yes, sir.

Q. More than eight times? A. Not more than eight times.

Q. Did these persons vote under their own names each time ? A. No, sir.

Q. Was anything said by them or the managers when they came up to vote after
the first time ? A. Not by them, but by the managers. They laughed and said they
were tricks.

Q. Did the repeaters say anything themselves? A. No, air; they would simply-
come up and vote in other men's names and step aside.

Q. Did you know any of these men? A. Yes; some of them.

Mr. O. Sheppard, a witness for the contestee, a private citizen who
bad ordered a colored elector arrested, as he himself testifies (498) " I
told him to put him in jail on account of his threatening manner and
bulldozing style " further testifies on page 500 :

In the first place, I had no right to issue an order ; I was only anxious, as a public
citizen, to see that peace should be preserved ; and besides, we wanted nothing but
peace, and Mr. Blackwell, being a State constable, and I drawing the only inference
that was possible under the circumstances, that he and his crowd came here for a row r
I took that method of putting a stop to it, if possible, in order to preserve the peace.
In my judgment, had it not been for that, his conduct would have precipitated a seri-
ous riot, in which numbers of lives would inevitably have been lost. These colored
men who came to me and asked me not to have him arrested did not seem to be actu-
ated by the same malice that he was, but I believe that they saw that we were pre-
pared for them, and had it not been for that they would have been just as keen as he
was. This is my opinion. I did not see those parties do any acts of violence, but they
were in the same crowd with him ; he seemed to be a leader ; he was in front of the
crowd, and had an outrageous, an awful large club, and seemed to be actuated by the
utmost venom.

D. R. Durisoe, Democratic county chairman, who seems to have been
in command of the red-shirt forces of Edgefield, testifies (pp. 528, 529:).

Q. Did not the fact of the Republicans approaching the polls yelling and waving;
their clubs tend to intimidate a good many Democratic voters ? A. We were all more
or less apprehensive of trouble and danger, and forthwith I consulted with a number
of gentlemen as to the propriety of sending for reinforcements, thinking that by in-
creasing our numbers we could the better preserve the peace and keep down any diffi-
culty between the parties. I then, immediately after this conference, sent messengers
to Landruui's Store, Trenton, Johnston, and Cheatham's Store, for detachments from
their Democratic clubs to come to our prompt assistance. Before sending these mes-
sengers I met on the street, near the court-house steps, and after the Republicans
marched np and took their position, Capt. St. Julian Bland, and asked him to call big.
company together, and assemble at his armory forthwith, as I was fearful we were
going to have trouble. He said he would do so, and started with a crowd in that
direction.

Q. You said you requested Captain Bland to take his company up in the Masonic
Hall (the armory); was not this company one of the militia companies of the State,
and did you not make that request after you saw that a riot was imminent, and wae
it not done solely as a cautionary measure, that is, to prevent a riot, if possible, and
if the riot could not be averted, then they were to be used as a means to prevent this
large body of the infuriated negroes from committing any acts of vandalism? A. I
know that St. Julian Bland was captain of the Edgefield Rifles, and that the company
was legally and lawfully commissioned and received into the State militia; and I
further knew that it was his duty, when called upon, to aid in keeping the peace and
assist iu putting down and quelling riots should any occur ; and I therefore thought
that by having him and his company in readiness at the company's armory, to be
called for if wanted, that said company's presence and influence would have material
effect in bringing to a speedy end any riotous proceedings that might be inaugurated,
and which looked so very probable at the time I requested him to assemble his com-
pany.

Q. Did you vote at the last election ? A. I did.

442 DIGEST OF ELECTION CASES.

Q. For whom did you vote? A. G. D. Tillman.

Dr. G. W. Wise, witness for eontestee (p. 536) :

Cross-examination by L. GAIN, counsel for contestant :

Q. About what time in the day was it when you received information that the Dem-
ocrats at the court-house were apprehensive of danger ? A. About 9 o'clock ; I think
we got word twice.

Q. About how many meu came with you in that company ? A. I think about fif-
teen started from Trenton, and some few fell iu with us along the-road, and there was
not exceeding twenty-five when we arrived at the Edgefield precinct. This was not
an organized company. The most of our men had gone to Johnston. We got a dispatch
that there was some trouble down there.

Q. Were not most of these men who came with you armed with guns and pistols,
dressed in red shirts, and when they were coming up Main street were they not yell-
ing, flourishing their pistols, and making a display which was calculated to terrorize
and intimidate Republican voters? A. There was not a gun in the crowd. If there
was any pistols I did not see them ; likely they had pistols on. They certainly ought
to have them, if they had not. / had mine on. I heard that there was a riot here, and
<jame prepared to quell it, if possible. There were very few red shirts. Don't think
a single man who left Trenton with me had on a red shirt ; some few fell iu, I think,
had 011 red shirts. One man wanted to bring a gun, and I advised him not to do so,
and he did not. No flourishing of pistols that I saw. I heard some hallooing or yell-
ing. I don't know how easy Republican voters were intimidated. I don't think a
little crowd like that would have intimidated me much.

Q. How many precincts did these twenty-five men who accompanied you visit that
day besides Edgefield, Trenton, and Landrum's Store? A. None that I know of, and
not all of the same men who came here went to Landrum's Store, but others, who did
not come to Edgefield, went to Landrum's.

Lewis Jones, a witness for the contestee (p. 517), who was a State con-
stable, and when, as the testimony shows, there were between 2,000 and
2,500 Republican voters and less than 700 Democratic, testified as follows :

I approached the crowd, asked them what they wanted. They replied that they
wanted to vote. I told them they would be allowed to vote three at the time ; that
they could not approach the polls in a mass that way ; that if they would vote alter-
nately, three at the time, three colored and three white, they would be allowed to
vote; I would go with them myself and see that they were allowed to vote.

This witness testifies, on same page, " I got the appointment of State
constable to act on that day for the purpose of keeping the peace and good
wder."

And a cross-examination (p. 521) :

Q. You offered to accompany them to the polls and see that they were allowed to
vote; did you go with any of them? A. I did; I went to the doer where there was
a guard whose duty it was to see that 3 be allowed to come in at the time ; I went
there with 3 squads, they became impatient, and said that it was too slow voting that
way.

The testimony of Jones, Wise, and of D. E. Durisoe shows that
bodies of armed Democrats in uniform were riding to and fro between
the polls on the day of election. On pp. 518 and 519 he testifies :

Q. Were you in the village on the evening previous to the election ? A. I think I
was, but am not certain.

Q. Do you remember seeing white men mounted, dressed in red shirts, and riding
Into town in companies that evening ? A. I do remember seeing squads of men riding
into town and out again that evening; some few had on red shirts.

Q. Were not some of these men armed, and was not the demonstration made by
them in the way of yelling calculated to intimidate Republican voters ? A. As to the
arms, I can't say that I saw any; but as to the yelling, there was some holloaing;
can't say that the demonstration was calculated to intimidate any Republican voter ;
I think they have got used to that sort of a thing.

T # * * # #

Q. Is it not a fact that a great many white men rode into town that day in com-
panies armed with guns and pistols? A. There were squads of white men who would
pass through town and stop a little ; I think I saw some pistols on some of them ; saw
o guns.

SMALLS VS. TILLMAN. 443

Q. Do you not remember seeing Democrats at the village precinct that day who
came from the Dark Corner, a distance of 25 miles; from the Saluda section, a distance
of 25 miles; from Ridge Springs, a distance of 17 miles, o rfrom Shaw's Mills, a dis-
tance of IS miles? A. I think there were men here from most of those places, but
tlon't remember who; I don't remember seeing anybody here from Shaw's Mills.

Q. Do you remember seeing on the day of election white men dressed in red shirts on
the street, armed with guns or pistols, or in the Masonic Hall, or in any of the doors or
windows fronting on the public square ? A. There was some few men on the streets
on that day dressed in red shirts, and some of them may have had pistols ; I don't re-
member about that ; don't think any of them had guns. As that large crowd of col-
ored men were approaching the public square, I myself ordered a remnant of the rifle
company to rendezvous in Masonic Hall, and to take position in the windows fronting
the public square ; they had rifles. There were other men armed with guns, but few
in number, who took position in the gallery occupied by Mr. Miners ; this was done
for the purpose of suppressing a riot, for it looked very much like a riot ; it was a pre-
cautionary measure, I regarded it, and I think it had that effect.

Q. Did you order out the men that took possession of Miner's gallery! A. I did
not; I think they went there on their own accord.

Q. Can you state where these men got their guns from that took position in the gal-
lery? A. No, sir; I don't know.

Q. Among those who assembled themselves in Masonic Hall under your orders,
were there not persons other than members of the rifle company ? A. I don't know ;
I don't know how many nor who they were up there.

Charles Holmes (p. 694) testifies :

Q. M. O. Sheppard has testified that the election at the court-house precinct was
conducted fairly, and all could have voted who desired to do so, and that he carried
you to polls himself: is that true or not ? A. It is not true. I was carried there by
Mr. Lewis Jones, sr., and I could not have voted had it not been for him and others,
thought I was going to vote a Democratic ticket. How come them to let me in

(Objected to as not relevant the latter part of answer.)

Q. Did you not see the entrance to the polling precinct obstructed during the entire
part of the day that you remained at the polls, by Democrats uniformed in red shirts,
pistols buckled around them, and, at times, with pistols in their hands; and also, did
you not see them have brickbats, and some with clubs or pieces of boards in their
hands?

(Objected to as cumulative evidence, and as new matter, and not in reply.)

A. I saw pistols in their hands; I saw them with brickbats, sticks of some kind
can't say what they were. The polling place was crowded with Democrats all day
long.

Q. Do you know why the Republicans came to the polls in bodies? A. I do. Be-
cause the recent election before, where there was one or two together they were run
over and knocked their hats off; and I heard them say when there was a big crowd
together may be they would not be attacked so.

(A part of the answer objected to as not relevant.)

Q. Can you explain why it was that a number of them had sticks iu their hands?
A. I heard them say the Democrats was all armed and they were not able to buy
them and had sticks to protect themselves to keep from being run over.

(Objected to as hearsay evidence.)

Q. You were president of a Garfield club, were you not? A. I was.

Wiley Weaver (p. 690) testifies:

A. The object of our crowd was that the Democratic party had promised to be at
the cross-roads to turn us back ; we thought that by coming in bodies that it would
prohibit them from interrupting us; we taken the sticks, for instance, if they should
undertake to run over us we would have something to protect ourselves, and it was
not the object to take forcible possession of the polls.

(The latter part of the answer objected to as a matter of opinion.)

Q. You were the leader of the crowd that came along with you, were you not? A.
I was.

Q. About how many were with you ?

(Objected to as not in reply.)

A. About 150.

Q. Of this number about how many voted? A. Not one.

Q. Then the statement made by some Democrats that every one could have voted
who desired to do so is not true, is it ? A. It is not.

Q. State why you, and the men accompanying you, did not vote. A. They didn't
allow us any chance to vote.

Q. Why did you aad your crowd leave the polling precinct at the time you did?

(Objected to as not being in reply. )

444 DIGEST OF ELECTION CASES.

A. It was about 2 o'clock when we left, and I saw there was no chance of voting,
and I taken my crowd and left.

Q. While at or near the polling precinct did you see any acts of violence on the
part of the Democrats f

(Objected to as new matter.)

A. I saw the Democrats come around cursing, tempting us with board or pieces of
plank while we were here ; I mean drawing planks on us, and telling us what they
would do, and that they would knock ns down with these boards if we came up there.

(Answer objected to as new matter.)

Q. Some Democrats have testified that no violence or threats were used by the
Democrats at the court-house box ; then, from your knowledge, you know this to be
untrue, do you not? A. I do.

Q. Did the colored men who came with you have the slightest idea or intention of
raising a disturbance with the Democrats at the polls on the day of election ? A.
They did not.

(Objected to as matter of opinion.)

B. T. Anderson, another witness for the contestee, testified as follows
on the cross-examination, on page 504 :

Q. Will you explain how it was possible to preserve tjie peace by the assembling of
these armed men up stairs in the Masonic Hall ? A. As was explained to me by some
of those parties that was in the hall, they knew full well the Republicans could not stand
the sight of fire-arms, and that the Republicans had finch an overwhelming mnjority, and
but/ew tchite, they assembled there, thinking that the sight of those guns would deter
them from making an attack, or getting up a riot. If such thing should happen,
iliey could use their arms effectually, and I have heard from several Republicans that the
eight of those men in the hall were the only reason that a row was not gotten up here
that day. I don't know their names. I have heard from at least twenty Republicans,
while in my bar, say, if it had not been for them guns in the hall we would have taken,
that box that day.

PLEASANT LANE EDOEFIELD.

James P. Norris, witness for CONTESTEE, testifies (p. 541) on cross-
examination, as follows :

Q. There was no attempt on the part of the Republicans whom you saw passing
the precinct of which you were a manager to interfere with the managers or the vot-
ing, was there ? A. None at my box. It seemed to me that they intended to congre-
gate at Meeting street.

Q. Do you know anything about what transpired at Meeting street, except what
you have heard from other parties ? A. I know that some of these colored men told
me that they had been to Meeting street.

Q. Can you give the name of any of the parties who gave you this information t
A. I can, but I decline to do so.

Q. You stated in your direct examination that jou heard the rumor that colored
men were buying up all the arms and ammunition they could get some days previous
to the election. Can you give the name of a single individual who made these pur-
chases, or the name of a single individual who sold arms or ammunition to Republican
voters just previous to the election? A. It only came to me as a rumor.

Q. You have stated that so far as your observation extended it had been the custom
of the Republicans, during the Republican administration, to mass their voters at a
few precincts and take and hold possession of the same during the day ; will you
please state the election and precinct where white Democrats could not or did not vote,
if they so desired, during the Republican administration ? A. I will state that in
1872, at Pleasant Lane, it was difficult for a Democrat to vote without wedging his
way through a crowd of colored voters, and rendering himself liable to insult, and
saw a white man get himself into a difficulty with a colored voter on that account.

Q. Will you please state whether the man you refer to or any other white man had
to leave there that day without voting if he so desired ? A. No ; he did not.

Q. Was not one of the managers at the election you refer to a Democrat ? A. I
don't recollect.

Q. About how many Republicans were there that day ? A. Probably fifty during the
day.

Q. Was there only one Republican vote polled there that day ? A. Only one.

Q. Yon stated that two or three colored men voted the Democratic ticket that day ;
can you give the names of these parties? A. I can, but decline to do so.

SMALLS VS. TILLMAN, 445

MOUNT WILLING EDGEFIELD.

George Valentine testifies as follows (p. 417) :

Q. Where was the poll held f A. In a small office on the ground floor.

Q. Where was the box placed? A. On the table, about the middle of the room.

Q. How lartre a room ? A. About twelve feet long, eight or nine feet wide.

Q. Did the managers tell how long the polls had been open, or how many people
had voted ? A. No, sir.

Q. Did you keep a poll- list ? A. No, sir.

Q. Were the voters allowed to come into the poll and pass out freely ? A. No, sir.

Q. How was the entrance to the room arranged f A. One door.

Q. Was that door free ? A. The red shirts were standing around, with clubs and
pistols, keeping the crowd back, and letting them in six at a time.

Q. Was any discrimination made between the voters in admitting them ? A. Re-
publicans were kept back and the Democrats admitted.

Q. Were any Democrats kept back? A. Every now and then, if a crowd of Demo-
crats tried to get in, and if the house was full, they would keep them back (p. 80).

Q. Were there many persons inside the house during the day f A. Yes, sir.

Q. To what political party did these persons belong ? A. To the Democratic party.

Q. Were any Republicans there ? A. None but myself, except when they came in to
vote.

Q. Did any attempt to remain after voting ? A. No, sir.

Q. Were the managers Republicans or Democrats ? A. Democrats.

Q. Did you remain all day f A. No, sir.

Q. Why not T A. A row took place, and I got out.

Q. What time was this f A. About 2 or 3 o'clock.

Q. AVhat caused the row ? A. A crowd of Democrats came up ; commenced beating
the colored people with clubs and sticks, and one pistol was fired ; after that a great
deal of shooting ; then the colored people ran home.

Q. Did all the colored people run away f A. There was about a dozen staid around
there till sundown.

Q. How many went away at the time yon did? A. About one hundred and eighty
or ninety.

Q. Why did you not remain T A. Because I was afraid the,y were going to kill me.

Q. Did you go away before or after the firing I A. I went at the time of the firing.

David Graham (page 438) testifies as follows :

Q. Did you vote ? A. No, sir.

Q. Why not ? A. The poll when I got there I staid there till about 2 o'clock.
About that time came up a crowd of Democrats and told us to leave, and we got away,
and I went home.

Q. Were these Democrats mounted on horses ? A. They were.

Q. {How were they dressed ? A. Some had on citizens' clothes, some red shirts.

Q. W T hat did they sav to you ? A. They said, " You damn niggers get away from
here."

Q. You say that the firing commenced ? A. Yes ; about a minute after this was
said.

Q. Were many shots fired ? A. Good many.

Q. Did any others leave who had not voted f A. Yes ; they all left, Republicans.

Q. Did anybody remain at the poll f A When I left all the colored had gone, ex-
cept two or three, and a good many Democrats.

Q. How many Republicans left before you did ? A. About seventy-five.

Q. Had all of these voted T A. No, sir.

Cross-examined by Mr. WARDLAW :

Q. You say a good many Republicans left ; had not some of them voted ? A. Yes,
sir.

Q. Do you mean to say that 75 left who had not voted, or 75 not voted? A. I
think 25 had voted ; 50 had not.

Q. Did you go back to the polls after you left ? A. No, sir.

Q. Did you attempt to vote ? A. Yes, sir ; I did a time or two, but did not vote ;
they were crowded so I could not get in.

MEETING STREET EDGEFIELD.

W. T. Tillinan testifies (p. 430) as follows :

Q. In what capacity (were you there) ? A. I was a United States SUPERVISOR.
Q. Were you present when the poll opened? A. I was.

446 DIGEST OF ELECTION CASES.

Q. What hour did it open ? A. About six o'clock.

Q. Did you see the box opened? A. No, sir.

Q. Did you act as supervisor ? A. No, sir.

Q. Why not ? A. I was prevented by the Democratic party, who struck me with a
stick and asked me what was my business there. I told them I was a United States
Bup'ervisor. One said, "What does the United States know about you?" He say,
" God damn you ; you will smell hell here before night." While waiting for the poll
to open a Democrat snatched my hat off and hung it up. I put it on ; he snatched it
off again, saying, " I hung it up ; let it stay or the first thing you know your head
will be hanging there." He went out of the room and returned with a club appar-
ently a piece of fence rail, and struck me twice with it, and I retreated under the
stairway, and he then struck me over the head. The clerk of the board asked me to
come outside with him. I did so, and while there the poll opened. A Democrat
snatched my paper away from me, and I saw them no more.

(P. 207 :)

Q. Did you know of any Republicans going to that poll who did not vote? A.
When my papers were taken away I was struck three times over the head, and being
advised afterwards by friendly Democrats to leave, I did so ; I returned twice, but
receiving abuse from this same man I left the poll ; about one mile away met about
one hundred and seventy-five or one hundred and eighty Republicans ; I told them
of my treatment ; we went to the poll and found it surrounded by red-shirts, and the
Republicans, finding that the Republican supervisor was not permitted to act, would
not vote and left the poll.

Q. How many Democrats were around the poll at that time? A. About forty or
forty-five.

Q. About how many Republicans ? A. None.

Q. Any Democrats in red shirts ? A. Yes.

Q. Many of them? A. All except three or four.

Q. Did any of them have arms ? A. Yes ; about twenty-five or thirty had pistole.

GEORGE'S CROSS-ROADS EDGEFIELD.
Westley Long testifies (p. 424) as follows :

Q. Do yon know any man who went there to vote and did not vote ? A. Yes, sir.

Q. How many? A. Some fifteen or twenty.

Q. Why did they not vote ? A. The red-shirts or Democrats crowded the polls so
that they could not vote.

Q. What did they do? A. They got across the door and would not let the Repub-
licans go in.

Q. How did they prevent them ? A. They crowded the door with their horses and
would not let the Republicans go in.

Q. Was there any violence or threats by any one that day ; if so, who by ? A.
Democrats threatened to strike the Republicans, and said they should not stay.

Q. How long did this continue? A. I don't know. I did not stay long after the
threats were made.

Q. Did the Republicans remain at the polls? A. I could not tell ; I left soon after
the threats were made.

Q. How do you know these men did not vote ? A. I went there with them and
went away with them.

Q. Why did they leave the polls ? A. It looked as if the Democrats were going to
knocking down the Republicans, and we got away for fear it might come upon us.

And on cross-examination as follows, p. 425 :

Q. Did yon hear any one tell the Republican supervisor that he should not serve ?
A. Yes, sir.

Q. Who did you hear tell him so ? A. One of the managers told him so.

Q. Do you know who the manager was ? A. I don't know his name.

Q. How do you know he was a manager? A. He was there, and said he was a
manager.

Q. How near to the poll when you heard this remark of the manager ? A. About
twenty yards.

Q. Did he say it in a loud tone ? A. He said it in an ordinary tone.

Q. Where was the manager ? A. About twenty yards from the poll.

Q. What was he doing about twenty yards from the polls ? A. The supervisor
aaked him to step out ; he wanted to talk with him.

SMALLS VS. TILLMAN. 447

Q. You say the Democrats threatened to strike Republicans if they did not getaway
from there ; what threats did they make ? A. They told them if they did not get away
from there they would frail then out.

* * * * # #

Q. You said the Democrats had a good many pistols ; how many did you see? A.
Twenty-five or thirty, I reckon.

Q. Did you see any Republicans with pistols or clubs ? A. I saw some old men witb
walking canes.

Q. You never saw any young men with sticks ? A. No, sir.

Q. Do you know who the men were that you saw with the pistols? A. No, sir, I
know nothing about them.

Q. Did those men live in your section ? A. I do not know ; I never saw them be-
fore.

Q. You said the Republicans could not vote there without fear. How do you know
that ? A. Because the Democrats were presenting pistols at us.

Q. You said the Democrats voted without fear. How do you know that ? A. There
was DO preventing them from voting.

Q. You said the Democrats said they intended to carry the election ; did you hear
that ? A. Yes, sir.

Q. Who did you hear say so? A. I prefer not to give names.

CHEATHAM'S STORE EDGEFIELD.
Brister J. Yeldell testified (p. 428) as follows- :

Q. In what capacity (were you there) ? A. A United States Supervisor.

Q. Were you present when the polls opened ? A. I was.

Q. Did you act as supervisor that day? A. No, sir.

Q. Did you see the box opened by the managers before the voting commenced ? A.
I did not,

Q. Why not ? A. Democrats were lighting a sham battle on the porch and I was
afraid to go to the box.

Q. Did you go into the poll at all ? A. I did not.

Q. Being supervisor, why did you not ? A. One of the managers objected to my
going in.

Q. Did you stay at the poll all day? A. I did not.

Q. Did you see the votes counted ? A. I did not.

Q. How many people were at the polls when it opened? A. About one hundred
Republicans and about twenty-five or thirty Democrats.

Q. Did the polls open at 6 o'clock ? A. Did not.

Q. What time did they open ? A. About quarter after seven.

Q. How long after sunrise ? A. About one and a quarter hours after sunrise.

Q. Was there any one present wearing uniforms ? A. Yes, sir.

Q. To what political party did they belong? A. To the Democratic party.

Q. Did any of these men have any arms ? A. Yes, sir.

Q. About how many ? A. About twenty.

Q. Who were the parties that were having the sham fight on the piazza; those
with red shirts on or without? A. Those with red shirts on and those without.

Q. In this fight were any arms used ; if so, how, and what ? A. They had pistols
and clubs and brandished them at each other, striking on a box and making great
noise.

Q. Why did you leave the polls ? A. A Democrat demanded my commission, and I
handed it to him and he returned it, saying he'd be d>amned if I should supervise there
that day.

Harry Oliphant testifies (p. 451) as follows :

Q. Were yon at Cheathain's Store precinct on the day of the last election ? A. I was*

Q. Did you vote? A. No, sir.

Q. Why not? A. I was runned away by the Democrats ; they fired at me.

Q. How many shots were fired at you ? A. Three.

Q. Did you see the parties who tired at you? A. I did not.

Q. What time of the day was this? A. Between 12 and 1 o'clock.

Q. What ticket did you intend to vote ? A. Republican.

Aud on cross-examination as follows :

Q. Just fired at you without you doing anything at all? A. Yes, sir.
Q. What did he fire at you with ? A. Pistol, as far as I know.
Q. Did you see him when he fired at you ? A. Yes, sir.

Q. Then could you not have seen what he fired at you with? A. I could if I had
my mind on nothing but it.

44 <S DIGEST OF ELECTION .CASES.

Q. Is it not usual when a man is fired at, and he looking at the person who fires, to
have his mind on it ?

(Objected to as irrelevant by contestant ; seeking opinions, not facts.)

A. I having my mind on running to save my life did not see what he fired at me
with.

Q. Did you not say you were looking at him when he fired at you ? A. I did not
say so.

Q. Then, as you did not see the shots fired how do you know they were fired at you t
A. Because there was but that one man after me in an open old field.

John Branson, witness for contestee, testifies (p. 538) as follows:

Q. Did you see any acts of violence committed there that day ? A. None at all.

Q. Harry Oliphaut testifies to having been fired at about four or five hundred
from the polls ; if he was fired at at all, it was not in the vicinity of the polls? A. If
he was fired at all, it was some three or four hundred yards from the polls; perhaps
further. I heard pistol shots, one or two, and heard afterwards that they were fired
at Harry Oliphant.

Q. Was not that difficulty a personal one, and had nothing to do with the election f
A. I don't know.

Q. Was it not a general rumor that the colored people were buying up all the arms
and ammunition they could get just prior to the election ? A. I never heard it.

D. J. Mitchell, p. 701 :

Q. Were you at Cheatham's Store precinct on the day of the last general election f
A. I was.

Q. Mr. John Brunson- has stated that the election was conducted fairly there ; ia
that correct or not? A. I can only say that the Republicans were not allowed to vote
whilst I was there.

Q. Were you violently treated by Democrats there that day? And, if so, state the
manner in which you were used.

(Objected to as new matter and not in reply.)

A. I was; I was beat; they attempted or threatened to kill me. I was about one
hundred yards, more or less, from the place of voting ; I had just left the store and
had gone down the road ; the supervisor and aboutthree or four hundred Republicans
who had just left the store, after being denied the right to vote. The supervisor had
commenced taking the names, and I told him that I was going home, ami he said to
me not to go until he could get the names of all the Republicans who would come
there to vote. He then concluded that he would go back to the voting place again,
and so he did, after taking all the names, all of them that was present. He then asked
me to go with him back again and stay with him all day, in order he could take the
names of them that was objected to voting. I did not go with him there. Wo was
not far from the store, and after all had left that place I started to go where the su-
pervisor was, and before I got to the store, or got in sight of the store, I stopped and
looked to see if I could see the supervisor or any Republicans there. I did not see
him nor a colored person there. I started away, and I heard some one saying. " Halt."
I did not stop at first, and they still repeated the same word. I was riding, and I did
not stop at all, but I walked along slowly, and they overtook me and told me that I
had to go back to the store. I told them I did not have any business down there now,
aud I was going home ; they were white Democrats ; struck me with a club, and caught
hold of the horse's bridle-rein, and told me that I had to go back. He began pulling the
xein, and I got off the horse. At this time there was another Democrat standing behind
me; I turned my face to him, and he had his pistol drawn on me, and told me if I did not
go back to the poll he would shoot my brains out and leave them in the road. I then
concluded, rather than be killed, to go back ; I gets to the store, then I stops at the steps
and refuse to go any further. He told me to go on, and I would not move ; they then
commenced pushing me, and caught hold of me by the arm, and carried me to the
window, and put one hand on my nead and the other on the box, and he said, " Here

it is, God d n you, now vote." I told him I could not vote when I wanted to, and

I did not intend to vote at all. One of the Democrats struck me with a club, and
then I spoke and told them I had done nothing for them to treat me in that manner,
for the piazza was full of Democrats. They jumped on me, and commenced pulling
me and beating me about, so I commenced trying to get loose ; they commenced
trilling me on every side, and I seed that I would be killed ; I tried to get to the door.
In the mean time they still had hold of me, pulling and knocking of nn j , trying to pull
me out of the piazza ; they said to kill me. One of the supervisors came to the door
and opened it, and as soon as I could I got in the store, whilst they all was knocking
and pulling of me. They tried to break in the stote to get to me, but was objected
by the locking of the door by some one that was in the store. They were still yet
cursing and damning, and saying "Make him vote"; and I voted a Democratic
ticket, thinking it would be the means to save my life ; and after I had voted I was

SMALLS VS TILLMAX. 449

let out the store by a white Democrat out of a window at the back end, which way
led through Mr. Cheatham's premises. My going out the back the supervisor, or
rather Democratic manager, said it would save my life, and one of them went a little
piece with me, and told me to get off as quick as I could, or else I would be killed.

(Objected to as being new matter which the contestant knows that the conteatee
will not have an opportunity of replying to, and not in reply.)

TALBERT'S STORE EDGEFIELD.

Lewis W. Collins (p. 441) testifies as follows:

Q. Were you at Talbert's Store precinct at the last election; if so, in what capac-
ity T A. As supervisor.

Q. What time did you arrive at poll T A. Seven o'clock.

Q. Was the voting then going on I A. Yes, sir.

Q. Why did you not get there when the poll opened T A. I went to wrong place.

Q. Did you go inside the poll? A. I did, when I first got there.

Q. Did you remain ? A. No, sir.

Q. Why not ? A. Some one said it was not my place; I then went out.

Q. Who said this ? A. Democrats.

Q. Was this all that was said ? A. Yes ; all that was said to me.

Q. Being a supervisor, why did you not remain anyhow ? A. He said this was his
special property and this was not my place; get out; my place was outside the door.

Q. Did he say why this was his special property? A. No; he did not.

Q. It being a public place, and you a public officer, why did you not still remain?
A. My reason for not staying was because I thought he might hurt me if I did not go.

Q. Did you keep a poll-list ? A. No, sir.

Q. Why not? A. Because around the box was so crowded could not.

Q. Where was the box placed? A. About two feet in front of door.

<J. Were there any persons in the poll other than the managers ? A. Yes, sir.

<J. Who were they? A. Democrat party.

Q. Were there any Republicans there ? A. No, sir.

Q. Did all the voters have an opportunity to cast their votes freely and without
molestation from any one ? A. No, sir.

(Objected as witness's opinion.)

Q. In what way were rhey hindered or obstructed ? A. The door was crowded by
Democrats who would not let the Republicans come in ; this lasted from about 8
o'clock to 3.

Q. What effect did this have on the Republican voters? A. They staid till about
3 o'clock, then left.

Q. Did any Republicans vote at all? A. Yes, sir.

Q. About how many ? A. About twenty-five.

Q. How many went away without voting? A. About one hundred and fifty.

<J. Were there many Republicans at the polls when you arrived? A. Yes, sir.

Q. Did any of those go without voting? A. I don't know.

Q. About how many Democrats voted up to 3 o'clock ? A. Forty or fifty.

Q. Why did the voting go on so slowly? A. Because those who were there kept
the box crowded and there were no more whites present.

RED HILL EDGEFIELD.

Anderson Carter (p. 442) testifies as follows :

Q. Were you at Red Hill polling precinct on the day of last election ? A. I was
there as a United States supervisor.

Q. What time did you get there? A. Quarter before six in the morning.

Q. What time did the polls open ? A. I could not tell what time they opened. I
was not there.

Q. Was the polls opened at six o'clock ? A. No, sir.

Q. How long did you remain there? A. Until half-past six.

Q. What caused you to go away ? A. Mr. Ben. Glanton, one of the managers, told
me I could not serve without my having my oath with me. I then showed Mr. Glan-
ton my commission. A party of white men came up. One of them snatched my paper
from me and tore one up. and said, "God damn, if you don't like it you need not take
it." Others said, " You had better leave, and that mighty quick, and not let me see
you here any more to-day ; if you do I will put a light hole through you." I then
left.

Q. What did you do then ? A. I went home.

Q. Was anything else done to you? A. That is all.

H. Mis. 3o 29

450 DIGEST OF ELECTION CASES.

Q. Was this said in a friendly or threatening manner ? A. Threatening manner
Q. Why did you not still remain ? A. I was afraid of being shot to death.

BICHABDSONVILLE EDGKEFIELD.

Kichmond Mobley (p. 435) testifies as follows :

I was United States supervisor.

Q. Who was your clerk ? A. Willie Hazel.

Q. A Republican or Democrat? A. 1 suppose a Democrat.

Q. How did you come to appoint him a clerk ? A. On arriving at the poll I asked
for somebody to act as clerk for me, and I appointed Willie Hazel before the poll
opened. Some of the managers said that was not the place for supervisor, saying,.
" Richmond, you had better go out," and I went out.

Q. After going outside, did you have a position so that you could see the box and
the managers' poll-list at all times during the day ? A. Until about half-past 1 or 2 r
I did.

Q. At this time what happened to prevent you ? A. A crowd of thirty-five or forty
men in red shirts rode up to the poll singing, and I was compelled by them to leave
my position. They remained from fifteen to twenty minutes, some singing and some
hallooing.

Q. Were there many men present at any time with red shirts ? A. Yes, sir ; I have
seen a good many with red shirts.

Q. Did you see any persons with arms ? A. I saw a great many pistols, but no-
guns.

Q. Who had them ? A. Democrats.

Q. Did you hear any threats of violence or see any violence whatever that day?
A. None.

Q. Did you hear any fire-arms discharged on that day ? A. None.

Q. Did any one molest you that day f A. No, sir ; with the exception of a man
snatching my papers out of my pocket. I caught hold of them, and he said, "God
damn you, let go of them." I then let loose. He kept the papers, and I have not
seen them since.

Q. Did you see the votes counted ? A. I did.

Q. Did the poll-list and ballots tally ?

(Objected to on the ground of being secondary, evidence.)

A. No, sir.

Q. What difference was there ? A. To the best of my judgment, there were seven
more names on the poll-list than ballots in the box.

Q. What was done about this by the managers ? A. I don't know.

LANDBUM'S STOBE.

Nathan Sullivan (p. 82) testifies :

Q. Where were you on the 2d day of November last, the day of the general elec-
tion ? A. At Landrum's store.

Q. In what capacity, if any ? A. A United States supervisor for the Republican
party.

Q. Did you keep a poll-list? A. I did until about 4 p. m.

Q. Why did you not keep it longer ? A. It was taken from me.

Q. By whom ? A. The Democrats.

Q. Did they assign any reason for taking your poll-list ? A. They did not.

Q. Were any colored persons driven away from that poll by violence or intimida-
tion ?

(Question objected to on the ground that it is a leading question.)

A. Not until in the afternoon, after they had voted ; some of the Democrats said that
they had no business there, and that they must go home. They went and did not
return.

Q. State the manner in which the voters were generally sworn. A. They sworn
first one at a time, and then two, and afterward six at once.

Q. Were all the voters sworn this way, without regard to race or color ? A. Yes.

Q. Did you see any strangers vote there? A. Yes; a good many.

Q. Do you know where they came from ? A. No.

Q. Was there a display of 'fire- arms around the polls; if so, by whom? A. Yes;
there were a good many by the Democrats ; a few by the Republicans.

Q. Was there any firing of fire-arms? A. Yes; in the evening; there was a great
deal by the Democrats.

Q. Were any other persons allowed in the poll besides the two supervisors, the
managers, and their clerk ? A. Yes.

SMALLS VS. TILLMAN. 451

Q. To what party did these others belong ? A. To the Democratic party.
Q. Were you present at the counting of the votes? A. I was.

Q. How did the ballots in the box compare with the names on the poll-list? A.
There were more ballots in the box than names on the poll-list about 76 more.
Q. What was done with this excess? A. They were drawn out.

Cross-examination :

Q. You said your duty was to construe the election. What did you mean by the
word construe ? A. To examine closely and to look into it closely.

Q. How many were there in the party who took your poll-list ? A. About thirty-
five.

Q. Did they all take it? A. One of them took it.

Q. Then you mean to say that a Democrat took your poll-list and not Democrats ?
A. Yes; a Democrat of the thirty-five.

Q. Is there any badge by which you could tell a Democrat from a Republican?
A. No ; there was no bad. e. I told by the way they voted and what I heard them
say.

Q. Do you know the man who took your poll-list from you ? A. Yes.

JOHNSTON'S.
William Trott, witness for contestee (p. 546), testifies :

Q. You saw no attempt on the part of Republicans to use the clubs which you have
described, or any demonstration made by them on the 2d day of November last, which
caused you to believe they intended to take forcible possession of the polls at John-
ston, did you ? A. I did ; I looked upon those clubs as a clear demonstration, for they
were not of the length or size of walking-sticks ; I saw no we made of the clubs.

JOHNSTON'S, EDGEFIELD COUNTY.
Willis Gomillion (p. 85) testifies :

Q. Were you at any particular precinct ; and, if so, ft what capacity ? A. At John-
ston's precinct, as a supervisor of the Republican party.

Q. Did yon discharge your duty as supervisor ? A. 'Yes; until about 2.30 p. m.

Q. Why did you not continue to act ? A. I was seized by a red-shirter, who said
to me, "God damn yon, go down from here." There being no protection for me I
went down and did not return, because I was afraid to do so.

Q. Afraid of what ? A. I was afraid that the Democrats woiild hurt me. After I
went down and got about thirty or forty yards I was overtaken by the same gentle-
man and two others who requested me to stop, and told me to come back and go with
them. I asked them where; they said, "On our side." I declined. About that time
I was surrounded by ml-shirters ; I don't know how many. Some of them said tha*
they would assure me that I would not be hurt ; " Come and go back." I then dis-
covered or saw Anthony Miles lying dead a few steps off, and I thought that I had
better get away. *

Q. How came he dead? A. He was shot by some one, just above his eye, with a-
ball.

Q. Before yon left the poll what seemed to be the disposition of the Democrats, or
those wearing red shirts, for peace and quiet? A. Right around the poll where I
could see was peaceable, but outside I could hear the reports of guns and pistols.

Q. What was the consequence of all this disturbance ? A. The colored people all
left.

Q. Did they vote before leaving ? A. Aboat twenty-five or thirty voted ; the others
did not.

Q. Were any other persons in Hie room besides the two supervisors, the managers,,
and their clerk ? A. Yes; red-shirlers.

Q. Do you know the politics of the managers? A. They are said to be Democrats.

Q. Were you in position to see the voting all the time ? A. Yes.

Q. Was more than one sworn at a time ? A. Not that I remember.

Q. To what political party did these men wearing red shirts belong ? A. To the
Democratic party.

Q. Are there many colored Democrats around that precinct? A. I think there Trere
about ten or fifteen.

Q. You spoke of a great many colored men leaving the poll without voting. Were
they Democrats or Republicans ? A. They claimed to be Republicans in my presence.

Q. Had these men remained at the poll and voted, what ticket would they have
voted ?

452 DIGEST OF ELECTION CASES.

(Question objected to, as it is only a matter of opinion, and leading.)

A. I know of 200 or more of them taking the Republican ticket.

<J. Who was the Republican candidate for Congress ? A. Robert Snialls.

Butler Hunt, on p. 86, testifies :

<Q. Did you vote there? A. I did not.

<J. State why. A. Because I was rejected from the box.

Q. On what grounds ? A. Because I saw no way to get to the box. The Democrats
"was standing in front of the box; one said to me, " Stand back, you colored people,
and I will insure you that you shall vote here to-day." Then I gave back, and the
Democrats began to ride up and down the streets on horses, waving clubs, pistols, and
some swords; then I got back on the other side of another house and remained until
about 12 m. Then I went to the depot and sat down, after which I heard discharges
of guns and pistols. All the colored people, with myself, ran into a field opposite the
poll. When the firing ceased I returned, and found Anthony Miles lying on the street
dead. I staid about five minutes, and seeing no chance to vote, and hearing the Dem-

rats say that all these d d niggers shall not vote here to-day, I thought that there

was no use for me to stay any longer.

Q. Did you leave alone ? A. No ; four or five went along with me.

Q. Had they voted? A. They said not.

Q. Who was the candidate on the Republican ticket for Congress ? A. Robert
Smalls.

Q. Would you have voted for Smalls had you the opportunity ? A. I would.

John Hammond, p. 87, testifies:

Question. Were you in Edgefield County on the 2d day of November last? If so,
at what place ? A. At Johnston precinct, for the purpose of voting.

Q. Did you vote ? A. No.

Q. Why not? A. Because I could not get into the room where the box was. The
door was crowded by Democrats all day. and I could not get in.

Q. Was there any disturbance of any kind at Johnston's? A. A shooting riot took
place there about 11 o'clock a. m.

Q. Who started and done this shooting? A. The white men. One man was killed,
(colored man).

Q. Did this killing have any tendency to drive any voters from the polls ?

(This question objected to on the ground of its being leading.)

A. The colored people ran off from the poll.

Q. Did they return ? A. A very few came back to see about the man who was
shot.

Q. Do you know of any colored men leaving the poll without voting, of your own
knowledge? A. Don't know how many left, but I think that there were as many as
700 or 800 who left.

Q. Are you generally acquainted with the colored people in this section? A. Yes:
I was horn and has lived in this section all my life.

Q. What are their politics? A. Republicans. Now and then you will find one
Democrat.

Q. Who was the candidate on the Republican ticket for Congress ? A. Robert
SmalU.

Q. Had you not been prevented would you have voted for Smalls ? A. Certainly
I would.

Cross-examination :

Q. Do you know every one of the seven or eight hundred men who left there with-
out voting that day ? A. No.

Q. About how many did you know ? A. I cannot tell how many, but I knew about
three or four hundred. I went there with a crowd of one hundred and thirty that I
know.

Q. How do you know that the others were Republicans ? A. They went there in
Republican clubs, and said they were Republicans.

Q. Did you speak to all of these men ? A. No.

Q. Then they did not tell you they were Republicans? A. The head of their clubs
told me so.

Q. Did any of those seven or eight hundred come there without beinq in a club ? A. No.

Q. What <lid they have in their hands? A. They had walking sticks; some of
them as large as a chair-round.

Q. Were not most of the sticks freshly cut ? A. I suppose they cut some coming
along the road ; we generally carry sticks.

<J. Did you see the shooting when it commenced? A. Yes.

<Q. Did you see every shot tired? A. No, sir.

SMALLS VS. TILLMAN. 453

Q. How do you know that the Republicans did not fire any T A. If they fired any
I did not see if.

Q. What did yon do when the firing commenced ? A. I ran in between two stores.

Q. About how many shots were fired after you went between the two stores? A,
Very few ; not as much as ten.

Q. How near were they together when firing commenced t A. About two paces.

Q. You say you left about 1 p. m. Do you know who came back after you leftT
A. No.

Q. Then how do yon know that none of these seven or eight hundred men came
back ? A. They say that they did not go back. Some of them never stopped running
till they got home.

Q. Have you seen all of them since then T A. I have seen the greater part of them.

Q. Did you take the trouble to ask each one if he went back t A. If I didnot tak&
the trouble to ask them, they took the trouble to tell me.

REFERENCE TO TESTIMONY FOR AIKEN COUNTY.

Aiken Court-House :
James Major, p. 167.
Samuel Harvey, p. 178.
George Short, pp. 174, 175.
George Knight, p. 180.
Moses Johnson, p. 179.
Jack Robinson, p. 182.
Col. E. M. Brayton, p. 160.
Mr. Crosslaud, p. 228.
James Major, p. 167.
James T. Wiugard, p. 310.

Silverton :

J. H. Holland, p. 144.
J. P. Shells, p. 155.
D. Bing, p. 130.
George Washington, p. 133.

Windsor :

William Trowell, p. 136.
General Piper, p. 140.

Creed's Store :
Alexander Williams, p. 73.
L. B. Coker, p. 182.

Fountain Academy :
X. J. Parker, p. 79.

Kneeee's Mill:
Peter Waggels, p. 184.
A. Holmes, p. 77.

Jourdau's Mill :
W. T. Tally, p. 72.

AIKEN COUNTY.

The uncontradicted testimony as to Aiken Court-House is a disgrace^
not alone to the participants therein, but to the civilization of the age.

Under the law of South Carolina an elector may vote at any precinct
in the county, and many voters from the precincts where violence and
intimidation were greatest went to the town in the hope of receiving pro-
tection in the exercise of their rights of franchise. This was particu-
larly so as to the Ellenton section, which was the scene of the horrible
bloodshed in 1876, and where a Republican meeting was broken up by
violence only a few days before the election. But their hopes of peace

454 DIGEST OP ELECTION CASES.

and order were doomed to disappointment. A barricade was erected in
front of tbe poll, at one end of which the voters were to enter, and at
which end a Democratic guard was placed to keep back Eepublicans,
whilst the Democrats went in at the other end of this barricade and
voted freely.

All the managers at this precinct were Democrats, and, according to
the testimony of one of them, there was " a constant stream of white
voters for over three hours." This was from the time the polls were
opened. About the end of that time (9 o'clock, perhaps) a riot was in-
augurated by cutting Eepublicans in the crowd at the entrance to the
barricade, and by throwing Cayenne pepper into the eyes of colored
voters. At this poll, a piece of artillery was trained upon the end of
the barricade at which the Republican voters were gathered, awaiting
an opportunity to deposit their ballots.

The testimony conflicts as to whether this gun was loaded or not, and
also as to the circumstances under which and the purpose for which it
was there ; nevertheless, it had the natural effect of aiding in the in-
timidation of Eepublican voters, and when the disturbance was raised
by the cutting with knives of Eepublicans, the Palmetto Eifles, a mili-
tary organization of the town, were drawn up in line, armed with
State guns. There is an effort on the part of some of the contestee's
witnesses to show that this was not the military town organization as
such, but rather a number of this company acting as State constables.
This fact is immaterial, however, for the conduct of this company shows
plainly that instead of acting as peace officers they were a part of the
mob engaged in the illegal work of intimidating and terrorizing voters.
Mr. W. C. Jordan, a member of the Aiken bar, and James T. Wingard,
a town marshal, both of them witnesses for the coutestee, distinctly tes-
tify that it was the military organization. By these means the bulk of
the Eepublican voters were kept back, and when the polls were closed
there were a large number of electors still waiting to vote, and al-
though they had been waiting all day for an opportunity of voting, were
finally denied the right. It is estimated by the testimony of several
witnesses that there were 300 Eepublicaus who would have voted for
the contestant, but who were prevented from casting their ballots by
the Democrats violently crowding the polls.

James Major (p. 167) testifies :

Q. Were the people allowed to vote freely up to that time ! A. No, sir.

Q. Why not ? A. They barred them from coming in with a stick.

Q. Who did? A. The Democrats did ; they had both entrance places barred \vith a
stick, and they would not allow them in, except every fifteen or twenty minutes they
would allow them to come in.

Q. Allow how many in ? A. Some six.

Q. Were the white men and colored men allowed to come in indiscriminately * A.
No, sir.

Q. State how they were admitted. A. The colored people all was packed on that
nd where they said they had to come in ; they were strong from the entrance, packed
one upon another up to the poll, and the Democrats had a stick across ; at this end
where I said they had two men with two sticks across the door, and they let them in.
They said no one could come in there. After a while they brought up a white man
and said he was a sick man, let him go through that way. I had a good many sick
men too. I sent off and brought up my sick men, and they said, "They can't go in
iiere." Finally, all the whites crowded the poll to get in this way.

Q. Which end are you speaking of? A. The whites went through the south end.

Q. All the white people ? A. Pretty much all; if the colored men went up those in
(the crowd were cutting them* up with knives; they got the people so excited with
their cutting them up with knives. I went in there when the crowd was thin.

Q. Did the most of the white voters come in from the south side ? A. Yes, sir.

<J. And the colored people were kept at the north end? A. Yes, sir.

<i- Would the managers of election let the white men in while the colored people

SMALLS VS. TILLMAN. 455

were waiting on the north side to vote ? A. Yes, sir ; they staid there until the poll closed,
<it 6 o'clock.

Q. Had there many colored men voted at that time? A. Not a great deal; there
were more white voters than colored, because they commenced to blockade them from
the j ump, and they kept them barred out until the poll closed. At 6 o'clock in the
evening they were standing there.

Q. You don't know what the difficulty was when the cutting took place? A. They
cut them because they weut in there to vote.

Q. How do you know that? A. Because I was afraid I would get cut myself.

Q. Because you were afraid that was the reason Harvey was cut? A. No ; he was
cut in the crowd because he was pressing to get in.

Q. Was anybody cut before you voted? A. I voted first before this cutting took
place.

Q. Do you know yourself of the difficulty between these men when the cutting took
place ? A. Yes, sir ; I know.

Q. State what was the difficulty between them. A. Because they were standing up
there to get in to vote, and they cut them to make them leave that place.

Q. This you know to be the truth? A. I know it to be the truth; that was all the
reason, because they were standing perfectly still doing nothing.

Q. Was there during the day a colored man let in at this exit end of the barricade
who was too sick to vote ? A. Yes, sir.

Q. About how many? A. I could not say exactly how many, but I know two or
three slipped in that end.

Q. But was there not some who were sick that they let in that end ? A. After they
cut Uncle Sam so bad they let him in.

Samuel Harvev, 70 years of age, who was one of the men cut, testi-
fies (p. 178) :

Q. What sort of a man ? A. A white man, that had got around to me in coming
round; I was standing with my face turned from the poll.

Q. And you got cut where ? A. In the right breast.

Q. Did you have that coat on when you were cut? A. Yes, sir [showing cut in his
coat a little over an inch long].

Q. Has the wound healed up ? A. Yes, sir ; the doctor pnt a plaster on it and it
got well.

Q. Can you show us the wound without taking your coat off? A. Here it is [Show-
ing wound on right breast near the collar bone].

Q. Were you creating any disturbance at the time? A. I never said anything after
they cut me.

Q. Was the colored people creating any disturbance? A. No, sir ; they were stand-
ing there quiet.

Q. Had there been any disturbance around ? A. Not with the colored people.

The pretext that voters had come from other counties was shown
merely to be such by the testimony of one of the managers in the
case of three men only who had come from other counties and attempted
to vote at the polls. Aiken County is composed of parts of Edgefield
and Barnwell Counties, and the testimony shows that some voters came
from that portion of the county which had formerly been Edgefield ; but
their legal right to vote at Aiken Court-House is beyond dispute. But
not content with suppressing Republican votes, the Democrats stufted
the box with 36 fraudulent Democratic ballots. In a former contest be-
tween the parties to the present one, when their relations were reversed,
much complaint was made by the Democrats against Government troops
being used at some of the polls in this county as a peace posse. Now,
in this case an organized volunteer company, armed with rifles, was a
part of the mob and encouraged and aided in the unlawful at of intim-
idating and obstructing voters. In view of the facts, your committee
is of opinion that this particular box should be thrown out of the count.

Col. E. M. Brayton, United States internal revenue collector, testifies
(p. 160):

Q. Which end did they go in at? A. The end designed for the voters to go in was
at the northern end.

Q. And the exit was at the south end? A. Yes, sir; at the north end was gathered

456 DIGEST OF ELECTION CASES.

this large mass of colored people waiting to vote, and that crowd remained and
seemed to me to be undiminished while I was at the poll.

Q. Did many vote while you were there? A. I was not near enough to the poll to
see who did and who did not vote ; but judging from those who came out, and from
the size of the crowd continuing, and the complaints of the people that they were
unable to vote, I should judge that very few voted while I was there.

Q. Did all the voters pass in at the north end ? A. No, sir ; I saw several passing in
at theother end, and it seemed to be the general understanding thatwhenever white people wanted
to voie that they would be taken in that end intended for the exit and allowed to vote. While
that was going on of course the colored people would be blocked up in the passage-
way and their voting discontinued. It was understood the large bulk of white people
had voted early in the day.

Q. What questions were asked of you I A. I was asked where I had my washing
done, where my family's washing was done, and where my family was living. There
were not very many questions asked of me, I being so well known here ; but there
was considerable time taken up by consultation among the board of managers, and
the arguments addressed to them by the challengers who were present there.

Q. From the general conduct of the managers and the persons around the poll, did
the Republicans have the same opportunity to deposit their ballots as Democrats
had ? A. No, sir; I can hardly conceive a more unfair and partisan election than I
witnessed upon that occasion. I know, from the manner of the managers and the
challengers, and of those who stood within the room at the time I attempted to vote,
that there was a hostility and objection to everything existing on the part of those
who seemed in charge of election affairs. During the time that I attempted to vote
there, questions were propounded or suggestions by those outside sometimes those
inside the polling place who did not appear to have any official connection with the
election ; and there was an insolent, bitter, violent tone and look upon the part of all
of those that I saw about the ballot box.

Mr. Crossland, Democratic manager, called by contestee, testifies (at
p. 228) :

Q. Did you not see a great many negroes here that day that reside in those remote
sections of the county f A. Yes, sir ; I saw some from various remote parts of the county.

Q. Did you not see some there from Edgefield? A. I heard at least three acknowledge
at the poll that they were from Edgefield County ; strangers to me.

James Major (p. 167) testifies:

Q. Were there not a number of colored people who live in other parts of the county
who voted over here? A. Oh, yes, sir; they could not vote other places in the county,
and they came here because they thought it was more peaceable, and they found it as
rough as anywhere else.

Q. You say there were 300 that did not vote ? A. Over that.

Q. Are you willing to testify that they did not vote during the day? A. I will;
that a great many that were standing at that poll when it closed that did not vote,
and I will swear to it.

Q. Could not a number of these men have voted elsewhere in this county during
the day that were here that night ? A. No, sir; they did not have time, they did
not have no horse to ride about from the time they carne here ; they staid here until
after the poll was closed.

George Knight (p. 180) testifies :

Q. Why did you not vote ? A. I came soon in the morning, and it was so crowded
we could not get in, and the white folks raised a sort of disturbance, and in the even-
ing when I went to vote there were some persons standing at the window and they
threw some Cayenne pepper in my eye.

Cross-examination by W. W. WILLIAMS, Esq., counsel for contestee :

Q. About what time of day was this pepper thrown in your eye ? A. About 2
o'clock.

Q. By whom ? A. I don't know who did it ; I did not see after they threw the pep-
per in my eye ; it just blinded me ; I had to get lard and rub it in my eye for a day
or so before I could get it out.

Q. Where were you standing? A. We were trying to squeeze to get in to vote.

Q. How far from the barricade ? A. By the steps opposite the door going up-stairs.

Q. No other stairs but that at the end of the barricade ? A. No, sir ; some one said
" look out," when the pepper struck me blind.

The following testimony of Jack Eobinson, elicited at the cross-

SMALLS VS. TILLMAN. 457

examination, sums up the results of that which preceded it. very point-
edly (p. 183) :

Cross-examination by W. W. WILLIAMS, Esq., counsel for contestee :

Q. Did you attempt to vote when you got there, at 7 o'clock in the morning t A,
Yes, sir ; I tried.

Q. What was the extent of your efforts ? A. From five minutes to seven, and I
stood there until 1 o'clock and tried to get in, and I could not.

Q. Stood where? A. Walking up following the crowd ; I went off at 1 o'clock, and
had been gone not more than twenty-five minutes and came back.

Q. If you had staid where you were in the morning, and had not gone off, would
you not have got to the poll ? A. At 6 o'clock I would have been further off than I
was when I got there. When I came back the men that I left there were not nigh
there. I was trying to get in ; I was making my steps as near to the poll as 1 could.

Q. Were you in that line continuously from 7 to 1 f A. Yes, sir ; the reason I came
out was I was kitid of sick.

Q. You never left it during the morning T A. No, sir ; I stood right there.

Q. When you entered the line yon stood there until the poll closed ? A. Yes, sir j
until the poll closed. When I stepped out from the poll it was when the pepper was-
thrown ; they threw it before I got that far.

Moses Johnson on cross-examination (p. 179) testifies :

Q. If you had taken your position in the line at 7 o'clock in the morning, would it
not have come your turn before six in the evening ? A. I stood in the line; I was not
in this press, because I could not get to the poll. I tried to get in where the white
people went to vote, and it was crowded with white people, and I asked Mr. Hender-
son if I could get in to vote there. He said, " You cannot get here now, but we will
try to make a chance for you after a while." After a while I came back and spoke to>
him again, and he said, "You cannot get a chance ; you will have to come back after
a while," and I kept going until I could not vote at all, and then they commenced to>
throw pepper in the men's eyes.

George Thorn (pp. 174 and 175) testifies as follows :

Angus Brown, who was clerk of court, ran into the crowd with a double-barrel
gun ; upon that Elias Goodin and Mr. Harlin's sou Span ran in the crowd with a>
navy pistol, and said, " You damn sous of bitches!"

Q. Who were they speaking to ; the colored voters ? A. Yes, sir ; they then fell out
again. / saw Lou Cutner go and move the cannon more in a position upon us. I looked
upon him and saw when he done it. The whites were crowding down on the colored
with guns and pistols in their hands. Mr. Hanlin said, "I want to talk with them,'*
and he went then in the alley- way of Loops & Ludiken, and said, "We want peace
and quiet ; " the remark was made by us that we came here for peace, and we wanted
to vote and go home; but they would not let them vot; instead the poll was crowdett
all day by irhite men in order to keep the colored men out. I stood a while in the morning
at the south end, and looked and made my remarks to them to put those polls back
the same place where they were ; that they had raised the riot before, and it must be
your intention to do something wrong again ; and Mr. Kline said "You better leave here.'^
I said, " I am not troubling you ; I am standing on the street." While I was standing-
there a vote was snatched from one of our voters by Thomas Moss, and the colored
man run in there after him, and Mr. Kline up with his foot and said " Get out here, yon
son of a bitch!" D. A. Henderson led him to the door by the throat, and as he went
out the door he kicked him. I remember seeing gentlemen of this town vote as high a
fire times, and 1 can name them name by name.

Q. Were these men who were armed with guns and fixed bayonets Republicans or-
Democrats T A. Democrats.

Q. Do you know where they got these guns from, where they were before they
brought them in the street f A. When the military company used to drill they car-
ried their guns home, but that morning they came out of Mr. Henderson's office.

Q. About how many of them f A. Twenty-five or thirty.

Cross-examination :

Q. Can you recall any time during the day that there were not a good many Dem-
ocrats around this box? A. If I was to say it was not I might say what was not so.

Q. Was there any time that there was not ? A. I cannot recall no part of the day
that there was not a crowd.

Q. They were around there all day? A. All day.

Q. Was not the Republicans around this box from the time it opened until it
closed? A. They were there as a fact, trying to get in.

Q. At what time of the day did that four hundred men leave that never came.

458 DIGEST OF ELECTION CASES.

toaek ? A. At the same time when the first riot rose; wlieu the guus were turned on
them, ami pistols, to the best of my knowledge, there were two hundred that went
oft' that time and did not vote.

Q. When did the other two hundred leave? A. At the second riot, which took
place between 2 and 3 o'clock in the evening in the afternoon like.

The spirit which actuated the political friends of contestee at this
court-house was manifested throughout Aiken County, and the differ-
ence in violence and lawlessness is only of degree.

At Summer Hill precinct all the managers were Democrats, and 61
fraudulent Democratic ballots were stuffed in the box. In withdrawing
this excess the managers felt for Republican tickets (pp. 157, 158), and
succeeded in drawing out 58 Eepublican and only 3 Democratic tickets.
This was illegal, as it required that the excess shall be withdrawn in-
differently.

Silyerton precinct is in the vicinity of Ellenton, which, as already
stated, was the scene of the riot in 1876. At this place a Republican
meeting was broken up by violence on the part of Democrats on the
Saturday preceding the day of election, aud J. H. Holland, a Repub-
lican leader who had been appointed a supervisor for Miles's Mills pre-
cinct, was one of the speakers. He was most cruelly beaten by a por-
tion of the crowd attacking the Republicans, and was prevented by
these disturbers of the Republican meeting from returning home on the
train, as he had come. Consequently he was forced to walk home, a
distance of 40 miles, through swamps and woods. On the day of elec-
tion the Republicans were driven from Silverton, and not a single one
of them permitted to vote at that place (pp. 154, 155, 156).

J. P. Spells testifies :

Question. Who were these men who assaulted these Republicans and drove them
away; were they Republicans? What were their politics ? Answer. The Democratic
red-shirt rifle clubs from Silverton. I heard one gentleman say it was the Silverton
orowd.

Q. Were there many of them there Democrats ? A. I might guess about two hun-
dred in the crowd.

Q. That came over from Silverton ? A. Yes, sir.

Q. They were a large crowd? A. Yes, sir.

Q. Were there many Democrats there besides these ? A. Yes, sir; about seventy
or seventy-five; they came and met them.

Q. What time in the morning did this shooting commence? A. About 9 o'clock.

Q. Had there been any disturbance before that? A. No, sir; the shooting com-
menced by these men around the house.

Q. What time did that shooting commence? A. That was just before 9 o'clock
when this crowd at the house commenced shooting. Then I saw the crowd coining
up shooting, and that was the crowd that ran the Republican voters from the poll.

Q. Who were these men that made threats against you ? A. They were Democrats.

Q. Were there many Republicans driven from the polls? A. At that time there
was about one hundred that ran off to the swamp.

On cross-examination:

Q. About how many men, white and colored, were there when this crowd came up
from Silverton ? A. I suppose there was about seventy-five white aud about one
hundred colored.

Q. Did you see these people go iuto the swamp? A. Yes, sir. I was standing op-
posite the door, and saw them when they were going from the poll, and this crowd
pursued them there before they returned to the house.

See also the testimony of D. Birg (p. 130) :

Q. Did you vote at all at that election ? A. No, sir.

Q. Why not? A. I went to Low Town, aud before I got a chance to vote there
they wanted some one to carry some tickets down to Silverton, and I thought I would
.have a chance to vote there, but could not.

Q. Why couldn't you vote? A. Because the white people had driven all the col-

SMALLS VS. TILLMAX. 459

orert people off; they said there were uo tickets there; I told them I had tickets;
they said there was no manager there to take charge of them ; I told them to go to
Low Town ; I met some white people coming up the road, and as we were coming to
Low Town they met these black people, and they ran them off. I heard not all of
them got to Low Town at all.

Q. You met a party of colored men that were going to Silverton ? A. Yes, sir ; and
told them to go to Low Town.

Q. Did you go hack to Low Town, Wells ? A. Not to the poll. There was not a
colored man there ; they had rmi them off.

Testimony of George Washington (p. 133) :

Q. Where did these Democrats come from that did this shooting ; did they belong
around there, or come from somewhere else I A. A little way off from there, about
five or six miles.

Q. From which way? A. Towards Ellenton.

And on cross-examination (p. 155) :

Q. How many colored men left when you did f A. About fifteen.

Q. How many did yon leave there ? A. I left about one hundred ; but some of
them beat me home and I started before them.

Q. Don't you know that this crowd that came by your house had voted at Silverton,
and had come to Low Town to vote again ? A. The colored men don't do such as
that ; the white men will do that, but there was not but a single vote cast by a colored
man.

And George Washington was correct ; not one Republican vote is
counted at Silverton.

At Windsor the Republican who had the tickets for his party for
distribution to voters was stricken and his life threatened if he did not
leave. In consequence of this there were no ballots for the Eepublican
voters. See testimony of William Trowell (p. 136) :

Id you get :

Q. Did you vote ? A. Xo, sir.

Q. Why not ? A. Well, there \\ as no tickets there.

Q. Did you see any other men there who wanted to vote and could not vote be-
cause there were no tickets there ? A. I seen nine men there besides myself, and
asked them if they had voted, and they said not, because they could not get any
tickets.

Q. What ticket did you want to vote T A. The Eepublican ticket, if I voted
at all.

Q. Straight ? A. Straight right through.

Q. Did these men tell you what ticket they wanted to vote f A. They said they
wanted to vote the Republican ticket. Some* I knew and some I did not.

See also the testimony of General Piper (p. 140) :

Q. Why did you leave ? A. This man John Goss

Q. Is he a Democrat or Republican ? A. A Democrat. He came up and asked me
why I was there taking the names. I told him I was appointed by the chairman of
the Republican party to see how many men voted the Republican ticket. He said,
"To see how many damn rascals like you there are," and he made a grab at my book.
In that time another man came up and he knocked me in the mouth. He asked me if
I wanted his stick. I told him no, and he struck the man with tickets ; with that he
jammed me \\ ith his pistol.

Q. How many pistols did you see ? A. Five or six.

Q. Did they gather around the ticket distributer, toof A. Yes, sir; me and the
ticket distributer were together, and there was about 100 around us

Q. Democrats, you say ? A. Yes, sir.

Q. Did many of them have pistols or guns? A. I did not see any guns ; I saw
several pistols.

The only contradiction or explanation of this testimony is that of Trial
Justice Keenan, on p. 307, who expressly says that he was at one end of
Windsor and the box at the other ; and he therefore speaks from hear-
say.

At Hankerson & Page's Store (pp. 188, 190, 192) the box had 26
fraudulent Democratic ballots stuffed in it, and during the progress of

460 DIGEST OF ELECTION CASES.

the election the Democrats were shooting off pistols, and carried off a
clerk who was keeping a list of the Republican voters and whipped him
with switches until he bled.

E. S. Green (p. 192) testifies that he was born 6th of May, 1859, and
as follows :

Q. Did you vote? A. No, sir.

Q. Did you intend to vote ? A. Yes, sir.

Q. What ticket did you intend to vote ? A. The Republican ticket.

Q. Whose name on it for Congress ? A. Robert Smalls.

Q. Did you vote ? A. No, sir.

Q. Why not ? A. They told me I was not of age.

Q. Who told you you were not of age? A. Those white fellows down there.

Q. Did they prevent you ? A. They told me it was no use to go in there, I was not
of age; and I did not care to insist to go in there.

Q. What were they doing ? A. Shooting and hallooing.

Q. What did they do with you afterwards ? A. They whipped me.

Q. What did they do with you when they said you could not vote ? A. They turned
my head and said I could not vote.

Q. Why didn't you go up and put your vote in, anyway? A. There was a crowd
there, and I did not care to insist upon it.

Q. Were you afraid to do so? A. Yes, sir.

Q. Were you afraid to do so because of the shooting and threats around there ? A.
Yes, sir.

Q. What were you doing there? A. I was taking names down there. They made
me stop.

Q. How did they make you stop ? A. They said I should not take any more names,
and I put the book up. Then a colored man came over and said I had better go to
his house, as they were cursing and hallooing so around there, until that crowd left.

Q. Did you go to his house ? A. No, sir.

Q. Why not? A. I was not there more than five minutes when they carried me
out in the woods and made four or five more hold pistols over me ; and then they cut
a switch and whipped me.

Q. Whipped you badly ? A. Yes, sir.

Q. Bring any blood ? A. Yes, sir.

Q. What did they whip you for; did they say? A. Because I went there to take
names.

Q. For the Republicans? A. Yes, sir.

At Creed's Store (pp. 73-182) the adherents of the contestee raised a
disturbance by shooting among the Republican voters, and rushed into
the school-house where the poll was held, saying, "Kill the damned
niggers, for they have no business here ; run them out." One of the
managers advised the supervisor to leave, and after that the Democratic
party had the count as it pleased. The Democratic supervisor admits
that the box had a plethora of votes, but could not tell what number
were drawn out.

Alex. "Williams (p. 73), supervisor at Creed's Store, testifies as follows :

Q. Did you discharge the duties of supervisor to the closing of the polls ? A. I did
not.

Q. Why? A. About 5 o'clock p. m. the Democrats begun shooting at and knock-
ing some colored men, and then came running in the house where I was. I asked
one of the managers if it was safe for me to stay there. He said, no ; he thought it

was best for me to get out of the way. The crowd came in saying, " Kill the d d

niggers, for they have no business here; run them out." I then squeezed through
the crowd and got out. Mr. Kreps, the manager who advised me to leave, was,
when I left, walking about in the room where the box was with a double-barrel gun
under his arm.

L. B. Coker (p. 182) testifies :

Q. Which man? A. The supervisor. The Democrats said, "Let's go in and take
that damn son-of-a-bitch out," alluding to the Republican supervisor.

Q. What did he do ? A. I don't know what he did.

Q. Did he stay in the poll ? A. I don't know; I made my escape as soon as I could ,
and left.

SMALLS VS. TILLMAN. 461

Q. What became of the other Rep nblicaus that were there? A. They ran away
before I did.

At Fountain Academy (p. 79) a party of Democrats around drove
sixty Republicans from the poll (p. 79). If. J. Parker testifies as fol-
lows:

Mr. Courtney came out, cocked his gun, cursed us. I left them there and went a
little way for a drink of water. On my return I saw the crowd of colored men, some
fifty or sixty, running from the poll. When I got up to the poll I saw Mr. Courtney
striking the colored men with a gun. Some other white men had pistols in their hands,

and said to the colored men, "You d d niggers, if you don't leave here we will

blow your God d d brains out." They followed the* colored men as they ran, and

threw knots at them and beat them over the head. Mr. Courtney struck one colored
man in the mouth aud caused it to bleed. After the colored mn left, the crowd of
white men went to Henry Peterson's house and asked him if he had anything they
could get to feed their horses. Mr. Peterson told them he had nothing that ho could
spare.

Q. Did you go off with the crowd of colored men? A. Yes. We stopped against
Peterson's" ho use and consulted whether to go back to the poll or not. By this time
Hoyt Jordan, who had on a badge and acted as marshal, asked what was the matter.
From one to another began telling him what had happened. Mr. Bill Jordan came
up and told us to go back to the poll and vote ; that the trouble was all over. Some
of them started back on Capt. Bill Jordan's word. Mr. Hoyt Jordan called me to him
and advised me to take my men, meaning the Republicans, and go home. He had said
before that we had better not go back to the poll if we did there would be trouble,
and that if one man was killed there that day, many would be killed. We did not go
back.

Q. Why did not you and your friends go back ? A. I was afraid to go back myself
and the others so expressed themselves.

At Kneece's Mill (pp. 77-184) a similar party from Edgefield County
intimidated and obstructed the \ 7 oters, took from the supervisor his poll-
listand tore it up, declaring, " This is sktchite man's country and ice intend
to rule it," and allowed him twenty minutes to get out of the way.

KNEECE'S MILL.
Peter Waggles, the United States supervisor, testifies (page 184 :)

Q. Did you keep a poll-list? A. Yes, sir.

Q. Did the Democratic supervisor keep a poll-list? A. He did not.

Q. Were you present when the poll closed ? A. I was not.

Q. Why not ? A. I was prevented.

Q. Prevented how ? A. My poll-list was taken away, and I was driven from the
poll.

Q. What time in the day did this happen ? A. About twenty minutes to four.

Q. Up to that time had everything been quiet and orderly ? A. There was whoop-
ing, and hallooing, and shooting all day.

Q. Much of it I A. Occasionally there would be the firing of a pistol.

And on page 185 :

Q. What was the shooting for? A. These men were riding from one poll to the other.
When they would corne in squads they would yell and halloo and shoot their pistols.
The poll I was at was between two polls.

Q. They would pass from your poll and go to the others? A. Yes, sir.

Q. At what time in the day did you leave the poll! A. About twenty minutes to
four.

Q. Why did you leave, that is, what occurred to drive you away ? A. I was ordered
away, and my poll-list taken away and torn up.

Q. By whom I A. A party of white men.

A. Holmes (p. 77) testifies :

Q. Did these men remain there? A. They remained about 1-J- or 2 hours ; they then
left, saying that they were going to Holson's Cross-Roads.

Q. Did they come back ? A. Yes ; they came when it was time to count the votes,
and brought others with them.

Q. Did any other men come up there on horseback ? A. Yes.

Q. Do you know Peter Waegiels ? A. Yes.

462 DIGEST OF ELECTION CASES.

Q. Did you see him on that day? A. Yes; I went with him to the poll.

Q. In what capacity was he there? A. United States supervisor.

Q- Did he keep a poll-list? A. Yes.

Q. From what time and to what time did he keep this list ? A. From 6 a. m. to
about half past eleven o'clock a. m.

Q. Why did he not keep it longer ? A. I was not there when he stopped keeping
the list, and don't know why he stopped; I went off, and when I came back I saw
them leaving ; they walked off as if they were afraid.

At Jordan's mill (p. 70 and 72) the supervisor was not permitted to
see the box at the opening of the poll, as the law requires it to be pub-
licly opened ; about fifty ballots were stuffed into this box. The man-
ager's clerk thought there were not so many by his poll-list, but he
seems to have left the poll several times, and his denial of having drawn
a knife on the supervisor is contradicted by three witnesses. Several
voters, who are specifically named, are proven to have voted here and
at Hutto. Mr. W. 8. Salley (p. 72) testifies as follows :

Q. State how the voters were sworn. A. While the voters were being sworn some
of them would take their hands down and would not be sworn, but would vote. Mr.
James, the Republican supervisor, called the attention of the managers to this sev-
eral times.

Q. Did you or did you not see a number of men come to that poll wearing red shirts
and vote there ? A. I did. They voted and went from there towards Hutto's poll.

Q. Did you recognize any of them? A. Yes; John Cook, Larking Garvin, and
Doc Abels ; those are all that I knew.

Q. To what political party do they belong ? A. To the Democratic.

The swearing of the elector is a check on repeating and is required
by law, but the law was of secondary importance to the partisan mana-
gers of this poll.

The statements represent this county as casting 6,447 votes, whereas
by the census of the same year there were only 5,985 males over twenty-
one years of age, so that if every elector had voted there are 562 more
votes than voters, and this, too, in the face of the fact that hundreds
of voters were excluded from the polls. The testimony shows that in
this county the vote was essentially upon the color line, and according
to the census of the same year there were only 2,873 white males over
twenty-one years old, so that if every one had voted for contestee it
would require 2,107 colored votes to have given the contestee the 4,980
votes claimed for him.

In 1876 both parties had a full national, State, and county ticket in
nomination, and the campaign is historic, yet the whole vote of this
county that year was only 4,820. The pretended vote of 1880 is an in-
crease of 1,627, indicating an increase of more than 25 per cent, of votes
for a campaign in which only a national ticket was run, and yet as an
illustration it may be noted that at Silverton precinct in 1880 not a sin-
gle Eepublican vote is reported, while in 1876 it counted 232 for the
present contestant, and only 182 for present contestee. In 1876, at
Aiken Court-House, the contestant received a majority 327 over the
present contestee, whilst in 1880 the present contestee is reported to
have received a majority of 336.

Corrected vote of Aiken County is stated :

Tillman 4,980

Deduct Aiken C. H 719

Deduct Silverton 225

Deduct Creed's Store 231

Deduct Windsor 396

1,571

3,409

SMALLS VS. TILLMAN. 463

Small's 1. 467

Deduct Aiken C. H 383

Deduct Silverton

Deduct Creed's Store 16

Deduct Windsor 10

40*

1,05$
Tillnian's majority 2.351

HAMILTON COUNTY BRUNSON POLL.

One of contestee's witnesses testifies that there were over 200 ballots
stuffed into the Brimson box, whilst another of them (page 100) says
there were 232; that the Democratic ballots "were thinner, and I think
smaller." As to distinguishing them by the touch, he says, " Not al ways ^
could sometimes. It was more from the peculiar manner in which the
Eepublicau ballots were folded that I could tell them from the feeling;
when in my hands." The terrorizing and intimidation at this poll seems-
to have been fearful. The night before the election armed bodies of
drunken Democrats rode through the neighborhood discharging arms,
threatening and abusing Republicans. This was continued next day at
the polls, which were held in an old store-house filled with these disor-
derly people, whilst the door was guarded and only one Eepublican ad-
mitted at a time. The testimony of E. A. Brabham gives a shocking:
account of the farce of the election and of the repeating by Democrats,,
which is fully corroborated by other witnesses.

EAELY BRANCH.

At Early Branch there was a crowd of drunken Democrats who rode
between there and People's poll repeating and stuffing the box, raising,
rows, threatening Republican voters, beating them, discharging pistols,,
and behaving in the most riotous manner. (Record, pp. 107, 111, 413,
and 414.)

BEACH BRANCH.

At Beach Branch the managers refused to allow the supervisor to act r
and he had to leave in order to avoid being forcibly ejected. A squad
of Democrats took from the messengers 1,200 Republican tickets, and
threatened to kill them if they went to the polls. Not a single Repub-
lican was permitted to vote there. (Record, pp. 5, 7, 8, and 12.)

LAWTONVILLE.

At Lawtonville the poll was held right at the door at the top of the
staircase running up on the outside of the building. A large number
of drunken Democrats were on hand, uniformed in red shirts, and well
armed. They led the supervisor down stairs, and warned him " to
escape for his life." Later in the day a party of them charged upon the
crowd of Republican voters, one of whom received a severe saber-cut,,
and three were shot, whilst others were beaten with clubs. These facts-
are fully substantiated by the evidence. (Record, pp. Ill, 113, 115. 119,
and 122.)

It was claimed in the argument for the contestee that no notice of
contest was given as to this poll, and possibly some others in this county 5

464 DIGEST OF ELECTION CASES.

but we are of the opinion that it is amply covered by the 4th and 15th
specifications.

It is a curious and very contradictory fact that, whilst it is claimed
and certified that 4,165 votes were polled and counted in this county,
the census shows that there were only 3,828 males over twenty-one
jears. This, too, in the face of the testimony that a large number of
voters were driven from the polls without voting. By the census, the
white males twenty-one years old were only 1,381, whilst the vote cer-
tified for the contestee is 2,590, and this, too, when his friends and
adherents were riding over the county on the night previous and on the
day of election, uniformed and armed, threatening, beating, and shoot-
ing the colored people to prevent them from voting the Eepublican
ticket. There is absolutely no testimony of colored men voting the
Democratic ticket which will in any wise explain the statement. The
only attempt at an organization of colored Democrats is shown in the
testimony of George Bellinger (p. 557), in which he says the largest
number ever answering were 22, and in his statement of the officers is
Daniel Platts, as vice-president, who testifies (p. 412) that he did not
vote that ticket and joined a Eepublican club, in which he remained
during the campaign. The utter failure of the colored Democratic club
is fully shown on page 416. Indeed, it. would be most extraordinary if
any number of colored people should vote the Democratic ticket, in
view of the overwhelming testimony of the lawless violence of " the
red-shirt Democracy," not only in this county but in four others of this
district.

The only way by which such a statement of the vote of this county
-can be explained is by the method illustrated so well at Brunson's, as
to the facts of which the Democratic manager and supervisor, as well
as Republicans, testify. On the first count this box contained " some-
thing over 500"; the excess over the poll-list "was near 200" (see
testimony of Democratic supervisor, p. 101), whilst the manager (Dem-
ocratic) who drew them out says "that excess was about 232" (p.
100). And yet this box is certified to as containing 356 legal votes,
and it is on such official sfatements that the contestee has received the
certificate and now occupies a seat in the House as the Representative
from this Congressional district.

References to testimony for

HAMPTON COUNTY.

Brunson:

Sector Loadholts, p. 13.
Aaron Smith, p. 14.
Benjamin Hal ford, p. 89.
Moses Terry, p. 95.
Isaac Thompson, p. 99.
E. B. Brabham, p. 414.

Early Branch :
Moses Brown, p. 107.
Baalein White,- p. 414.

Beach Branch:
Edmond Riley, p. 12.
Wilson McTeer, p. 8.
Frank Saxon, p. 5.
William Wright, p. 7.

SMALLS VS. TILLMAX. 465

Lawtonville:

Ben. Shepperd, pp. 113 and 114.
Erasmus Black, p. 115.
Lucina Barnes, p. 119.
Albert Hunter, p. 122.

Yarns ville :
S. J. Gantt, p. 125.
John A. Brown, p. 103.

BRUNSON'S HAMPTON COUNTY.
Hector Loaclholts (p. 13) testifies :

Q. Why ? A. I came to Brunson with Small's ticket in my pocket, and intended to
vote it if I could vote at all ; hut when I went into the house where some one told me
the box was a crowd of white men met me with clubs in their hands. They took
hold of me. They pulled and jerked me about, and they showed me a red ticket and
told me that I must vote it. While they were reading the names on the ticket I got
away from them and got out of there as I could and left for home.

Q. Why did you leave for home ? A. Because if I had staid there and not voted
that ticket that they were reading to me they would have given me the very devil
with those sticks they had, just like they did here in 1878.

Aaron Smith (p. 14) testifies :

Q. Why do yon say it was worse than you ever saw ? A. Because, on the night be-
fore the election the Democrats gathered here (from God knows where) until there
must have been hundreds of them here, and they hoop and hollowed and shot off
guns and something that sounded like a cannon all night ; they kept such a noise,
and kept coming to Mr. Brabham's house and calling him and trying to get him out
of his house, and kept threatening to break into his house, that none of uscould sleep
a wink that night.

Benjamin Halford (p. 89) testifies :

Q. Who had the Republican tickets on that day for distribution ? A. I had them.

Q. Did you meet with any trouble in the distribution of your tickets? If so, state
what. A. I was standing in front of the house in which the ballot-box was, about
five steps from the door, with about four hundred ballots in my hand. Mr. James
Mulligan, one of the States marshal*, walked up to me and told me to give him those
tickets I had. I refused to give them to him. He then said he was authorized to
take them, and put his hand in my pocket to take them out. I put iny hand in my
pocket at the same time and caught the tickets au<f held them tightly. I told him
that if he wanted to see them I would give him as many as he wanted; but he in-
sisted that he must have them all, and kept pulling them aud trying to tear them out
of my hands, After he had torn the ends oft' some of them he held on to them and
called to the men standing around to hand him a knife. Mr. J. Chisolm Youmans
stepped up to him and handed him (Mr. Mulligan) a knife. After he (Mulligan) got

the knife, he said : "Now I'll cut your d d throat." I told him to cut it and then

he could get the tickets. He then cut the tickets in two. I had hold of each end of
the tickets, and he cut them in the middle between my hands. Dr. Wyman, a Demo-
crat, who was standing near by and saw it all, said to Mr. Mulligan, ' You have done
that wrong. He offered you as many of the tickets as you wanted, and you should
not have cut them." Mulligan then left me, aud I said a few words about what he
had done, and Mr. Chisolm Youmans ordered me to shut up, putting his hand in his
pocket at the same time to pull out something, but the crowd rushed up to him and
stopped him.

Q. What kind of tickets were those Mr. Mulligan cut up in your hands T A. They
were headed Union Republican ticket, and had Garfield on it for President of the
United States, and Robert Smalls for Congress.

Moses Terry testifies (page 95) :

Q. Who was distributing tickets on that day? A. Ben Attwood.

Q. Were they Republican tickets ? A. They were ; General Garh'eld for President
aud General Smalls for Congress.

Q. Was he the only one distributing tickets that day? A. He was the only one
distributing Republican tickets, and had there been auy other distributing them I
should have seen it.

H. Mis. 35 30

466 DIGEST OF ELECTION CASES.

Q. Was there any attempt made to take these tickets from him f A. There was ;
Mr. Mulligan stepped up to him and asked him to let him see the tickets. Attwooa
told him he would give him as many as he wanted, but Mulligan said to him, "I have
authority to take them all," and run his hand down in Attwood's pocket and drew
out the tickets. As he did so Attwood caught the end of the tickets in his hand. He
then called for a knife, and Chisolin Yoemans gave him a knife, and he cut them in
two; that is, Mulligan cut them in two, and said to Attwood, "If you don't mind I
will cut your throat." So Attwood left him at that.

Isaac Thompson (page 99) testifies :

Q. Whowasit that objected to your voting ? A. Chi sol m Youman and John Light-
sey and Mr. William Causey, who struck me three times and shoved me out the house.

Q. Did you vote that day? A. No, sir; I did not vote that day. I wanted to vote
the Republican ticket, and said that if I could not vote the ticket I wanted to I
would not vote at all. About twenty said to me that if I would vote their ticket I
could vote.

E. B. Brabham (p. 414), testifies :

Q. Where were you on the 2d day of November last ? A. At Brunson election poll;
acted as United States supervisor of election.

Q. Was the election quiet and orderly ? A. It was not. On the evening previous
to the day of election several crowds of mounted red-shirters rode into the town of
Brunson. Directly after dark they gathered around the depot of the Port Royal and
Augusta Railway. They whooped and yelled. Hurrahed for Hancock, and cursed
Garfield. They fired off guns and exploded powder under an anvil, which explosion
sounded like a cannon, and was heard many miles from here. They kept up this
shooting all night, and until near sunrise the next morning. I went to the poll at
about daylight, and found a great many Democrats there, many of whom seemed to
be under the influence of whisky, and seeming to have taken charge of the poll. It
seemed to be the purpose of the Democrats to make as much show of violence as pos-
sible, but not to hurt any one ; but when they got their men drunk for the purpose,
they could not control them. They knew that the Republicans, having been run over
with horses, beaten with sticks, and shot with pistols at this poll on election day in
1878, would be afraid to come to the poll if there was any disturbance about it. They
kept threatening to come to my house, which is about one hundred and fifty or two
hundred yards from the depot, "and break in on me." A prominent Democrat sent a
colored man to my house with a message to me, saying that I had better go away
from home ; that those men at the depot had just agreed to come to my house after
me, and that if they found me there they would injure or kill me. Two other Demo-
crats came to my house, a few minutes after, and advised me to leave. I told them
that I would go, but my family was here. I had nowhere to take them, and would
stay with them if I got killed. Shortly after this a crowd came ; called to my gate,
and said that they wanted to see me. I refused to go out, and they left. A few
minutes later another crowd came. They came in my yard, and kuocked at my bed-
room window, insisting that I should get up, that they wanted to see me. I refused
to get up. They talked to each other awhile, and left. I heard one say, " Let's go
in' ; ; another said " No." After the poll opened the Democrats whom I found there
early in the morning kept up a good deal of noise, appearing to be drunk, and
behaved very disorderly.

The poll was held in the back room of an old store. The voters had to pass through
this old store to get to poll. This old store was full of this disorderly crowd of Demo-
crats nearly all day. No voter was allowed to enter without their consent. When-
ever a Republican would appear to the door for entrance, they would crowd into the
door, yell and jeer at him, and very often they would hold sticks across the door and
would not allow the Republicans to enter. In several instances Capt. John H. Light-
sey had to order the door cleared before the Republicans could get in. These block-
ing the door were mostly by members of Captain Lightsey's red-shirt cavalry com-
pany. Captain Lightsey testifies that he came to the poll directly after midnight,
and Ihink he brouhgt his company with him.

After the Republican voter got into the room theJDemocrats would ask him all sorts
of questions, thereby detaining him, worrying him so that several turned and went
out and did not vote at all. I noticed one Republican who tried to press through
and get to speak to the managers. As he got to the box several Democrats caught
and tried to pull him back ; he held on to something and they commenced beating
him on his head with clubs, and he turned and ran out. They would not allow
more than one Republican to enter at the time, and it required considerable nerve to
go into the poll under the circumstances. Several Republicans turned back at the
door, and some who entered was so worried that they came out before they got a
chance to vote, and never returned.

Q. Was the election fair ? A. It was not ; it was as unfair as it could possibly be.

SMALLS VS. TILLMAN. 467

The commissioners and managers of election were all Democrats. I, as chairman of
he Republican party, applied to the county election commissioner for one Republicans
on each board of three managers, but did not get one appointed. The Democrats
voted two and more tickets folded together, thereby stuffing the box so that a
very large excess had to be drawn out and destroyed, which gave them a chance tc
destroy nearly all the Republican ballots. After throwing out all the ballots that
they were certain had been voted inside other ballots, they had 588 ballots against
350 names on the poll-list.

Q. George Bellinger has testified that he was president of a colored Democratic club
of 107 members ; is that true ? A. No.

Q. What means have you, if any, for knowing it not to be true ? A. There never
was but one colored Democrat club organized in Hampton County ; that club broke
up during the campaign of '78. George Bellinger tried to revive it'in 1880, but failed.
I am an eye-witness to his efforts and failure. He held a meeting to elect officers
and to elect delegates to the Democratic county convention. The officers he elected
would not serve. Some of the delegates he had elected would not attend the con-
vention. They had joined a Republican club.

This precinct your committee are of opinion should be rejected.

EARLY BRANCH.

Moses Brown (p. 107) testifies :

Q. Where were you at the day of election f A. Was at Early Branch poll.

Q. Was you there all day T A. Yes, sir; was there all day.

Q. Did you see a body of men riding up to the polls that day ? A. Yes, sir ; I sup-
pose some twenty-five men would come riding up on their horses that day, firing their
pistols off; when they came up they would ride around awhile firing off their pistols,
and then they got down and voted; after that some of them remained and some got
on their horses firing their pistols, and went off as if they were going to Peeples poll
again.

Q. Did they come from the direction of Peeples polls ? A. Yes ; came from right
that side.

Q. How far is Peeples' to Early Branch ? A. I suppose, from my judgment, it is
about three and a half miles.

Q. Can you give the names of any of those who came in this body ? A. Yes ; can
give the names of some of them ; there was Robert Nixon, Oliver Nixon, Miles Nixon,
Rube Nixon, Ed. Nixon, Willy Taylor, Mark Nettles, Bill Bruler, Tom Gregory, Eu-
gene Gregory, Bill Allen (colored fellow), Guinney Wilcox, Branford Bruler,' and I
believe that is about all I did see.

Q. What ticket did they vote ? A. They voted the Democratic ticket every bit.

Cross-examination :

The Democratic tickets were red and the Republican was white, and they had the
red ticket.

Q. Then you was standing near the poll all day T A. Yes; I was standing right by
the window all day.

Q. How was it then that you saw the difficulty with this colored and these white
men ? A. The difficulty was not more than five steps from the window.

Q. Were all the Republicans driven away before the votes were counted ? A. Of
course ; they had to go away or be beaten with clubs.

Q. Did you remain until the votes were counted t A. No ; I had to leave. A white
man came to me and told me I had better leave.

Q. What time did you leave? A. About 7 o'clock.

Q. Who was it that told you you had better leave ? A. Mark Nettles, a white man
and a Democrat.

Q. Where did you go ? A. I went home.

Baalem White (p. 414) :

Q. Did you vote ? A. I did not.

Q. Why? A. When I got there about half past ten a. m., I saw but few people ;
but shortly I saw a crowd of twenty-five or thirty white men on horses coming. Mr.
Elias McTeer came up and handed me a ticket to vote, and I opened it and found that
there was three tickets folded together. When he handed me the ticket he started
to the box and told me to " Come right on and vote," and when he looked back, I had
the tickets open. He then asked me if I had no better sense than that. I told him
that I had opened the ticket to see if it suited me. It seemed that he did not like it
for me to open the ticket. I had always been voting the Democratic ticket ; but went

4C 8 DIGEST OF ELECTION CASES.

then' that day to vote the straight Republican ticket ; but when I saw that I would
create so much ill-felling by it I would not vote at all.

The vote at this precinct should be rejected.
BEACH BKA^Cfl.

Edmund Eiley (p. 12) testifies :

Q. Did you get any tickets that day ? A. We went to Mr. Brabham, at Bruusou,
for tickets; he gave us some tickets, but when we got about half way from Bruuson
to Beach Branch a crowd of Democrats, who followed us from Bruuson, overtook us
and took the tickets from us.

Q. How did they take the tickets from you ? A. They rode up to us, and ordered
us to halt ; they pointed pistols at us, and told us that we must give up those tickets.

Q. Did they threaten to do anything to you if you did not give them up ? A. They
said they would blow our damned brains out if we did not give them.

Q. Did you give them up ? A. We had to allow them to take the tickets, because
there were nine of them, and every one of them had pistols and sticks, and there were
but four of us, and not one of us had a pistol or stick or any other weapon.

Q. What did you do after the ticktets were taken from you I A. We went on to
Beach Branch, staid there * while, and went away.

Q. Do all the colored men in your neighborhood belong to your club ? A. I think
there is four or five who do not belong to our club.

Q. Did any colored men vote the Democratic ticket at Beach Branch ? A. Yes ;
tout very few ; less than ever have before. The colored men were never more united
than they were in this election, and I never saw anybody so badly cheated and de-
frauded as we have been in this election.

Q. Why were you so united in this election? A. We were determined that Garfield
and Smalls should be elected if it lay in our power to do it.

Wilson McTeer (p. 8) testifies :

Q. What did you do when you got to the poll ? A. We waited till about 7 o'clock,
and when we found that there were no Republican tickets there Frank Saxon, the
president of our club, directed me to take three other men with me and go to Bruuson
in a hurry and tell Mr. Brabham, the Republican county chairman, to send him some
tickets. I took Govau Brook-*, Toney Moss, and Edmund Riley, and we went to Brun-
son and got a package of about 1,200 tickets from Mr. Brabham and started back to
Bea- h Branch. We rode very fast. When we had got about three miles from Brun-
BOU, and at what is known as the Hammock place, John Glover, a Democrat, overtook
ns, and ran his horse by us and turned the horse across the road ahead of us and said
" close up." Then eight other Democrats rode up to us with sticks and pistols in their
hands and said, " Halt, you sons of bitches, and give us those tickets. If you don't
give them up we will blow your d d brains out."

Q. Did you give the tickets up ? A. I did not have the tickets myself, but they
seized hold on me, and was searching my pockets for the tickets. While they were
searching me for the tickets, one of them said, " There is the son-of-a-bitch that has
them." Then they went to Govau Brooks. One of them held a pistol to his breast
and one held a club over his head while others put their hands into his pockets and
took the tickets out.

Q. How were those Democrats dressed ? A. They were all dressed in red shirts ex-
cept one, who wore a red bow.

Q. What did they say after they had taken the tickets ? A. They told us to go and
not let them catch us back that way again, or they would kill us.

Q. Do you know who those Democrats were? A. Yes, some of them.

Q. Give me the names of those you know. A. Perry Lynes, John Glover, Billy
Brouson, and Thad. Bronson.

Frank Saxon testifies (p. 5) as follows :

Q. Was the election peaceful and quiet? A. No.

Q. Was you allowed to discharge your duty as supervisor peacefully and quietly,
without hindrance or obstruction ? A. No.

Q. State in what manner, then, you were prevented from doing so. A. The mana-
gers of the election refused to allow me to act as supervisor without going first to a
trial justice and be sworn.

Q. Had you been sworn; and, if so, before whom ? A. Yes; before E. A. Brabham.

Q. And you say you did not act as supervisor ? A. No.

Q. Did you go into the house where the poll was kept ? A. Yes. But when I told

SMALLS VS. TILLMAX. 469

them that I had been sworn already, and that I would not go to the trial justice to be
sworn again they ordered me out of the house.

Q. Did you make any attempt to remain in the building ? A. Yes ; I did not go
out until I saw that they were going to put me out by force.

Q. Who were the managers of election ? A. Richard Johnson. John Griner, and
Dr. W. T. Brelaud.

Q. How did you know that they would put you out ? A. They said they would do
it if I did not go out. Mr. Johnson said that" if I was allowed to act as supervisor
he would not act as manager, and they stopped the election, and seemed to be in the
act of preparing to put me out. I was afraid that if I did not go out they would
hurt me.

William Wright (p. 7) testifies :

Q. Did they both remain at the box ? A. The Democratic supervisor did, but the
Republican supervisor did not.

Q. Why did not the Republican supervisor remain at the box ? A. Because the
managers of the election would not allow him to remain.

Q. What did the managers say to him ? A. They asked the Republican supervisor
to show his authority. He did so. Then they asked him if he had been sworn. He
told them that he had. They asked him who swore him. He told them that Mr.
Brabham had sworn him. Then they said that he must go to Mr. Fitts, and be sworn
again.

Q. How far does Mr. Fitts live from the poll ? A. Two or three miles.

Q. Did the Republican supervisor go to be sworn again ? A. No.

Q. What did they do then? A. They told him that he must get out of the house.

Q. What else did they say ? A. Dr. Breland said that the Republican supervisor's
commission was all right, but Mr. Griner and Mr. Johnson said that it was not, and
that he should not sit in the house.

Q. Do you think that the managers would have done anything to the supervisor if
he had not gone out ? A. Yes.

Q. Why do you think so ? A. Because they had stopped everything and folded up
their papers and started to put him out.

Q. Were the managers Democrats or were they Republicans ? A. They wore all
white Democrats.

For the violence and intimidation shown at this poll, whereby Eepub-
lican voters were prevented from counting their ballots, and for the
refusal to permit the supervisor to discharge his duties, your committee
are of opinion that this poll should be rejected.

LAWTONVILLE.

Ben Shepperd (page 113) testifies as follows:

Q. Where were you at the last election? A. Was at the Lawtonville precinct.

Q. Was it a quiet election that day ? A. No, sir ; they commenced a row there I
suppose, near as I can come at it, about 8 o'clock a. m. ; they kept quiet down for
awhile for about one and one-half hour, then started row again ; then things went on
until about 4 o'clock p. in., when they started it again. They threatened to fight the
Republican party for voting ; they rebuked us by every blaspheming they could think
of; they were armed, every Democrat; most that I seen had from one to two pistols;
then, in the evening, at 4 o'clock, they rid off a piece and came back and rid right in
among the Republican party with swords and clubs; then we tried to get out of
the way, and in trying to get out of the way shot among us. I myself got six balls
in me at that time, and another man, named Adam Patterson, got shot. He and I
were carried home in a wagon together.

Q. Did you see anyone cut or struck? A. Yes; I saw one man get cut with a
sword, and two got struck with a club.

Q. When they shot at you what did they say ? A. When they shot me I was get-
ing away.

Q. What did they say when they came up? A. As they came up they said, "You
God damned son-of-a-bitch," and struck a man standing behind me ; at that time I
got behind a tree ; we, the Republican party, were all peaceable and quiet at the
time.

Q. Were you all quiet through the day ? A. Yes, we were all quiet through the
day.

Q. Where was the polls kept ? A. In Mr. People's store, in the upper story. We
had to go up staircase from outside.

470 DIGEST OF ELECTION CASES.

Q. Was the box inside of building ? A. The box was right at the door.
He further testifies, on page 114 :

Q. How long have you lived there ? A. Was born and raised there.

Q. Where were you at the last election ? A. Was at the Lawtouville precinct.

Q. Was it a quiet election that day! A. No, sir; they commenced a row there I
suppose, near as I can come at it, about 8 o'clock a. m. ; they kept quiet down for
awhile, for about one and one-half hour, then started row again ; then things went
on until about 4 o'clock p. m., when they started it again. They threatened to fight
the Republican party for voting ; they rebuked us by every blaspheming they could
think of; they were armed, every Democrat ; most that I seen had from one to two
pistols ; then in the evening, at 4 o'clock, they rid off a piece and came back and rid
right in among the Republican party with swords and clubs ; then we tried to get out
of the way, and in trying to get out of the way shot among us. I myself got six
balls in me at that time, and another man, named Adam Patterson, got shot. He and
I were carried home in a wagon together.

Erasuinus Black (p. 115) testifies :

Q. State then what occurred there to prevent it from being peaceful. A. That
morning when we went there the Democrats started a row to keep us from voting, by

threatening and cursing us for d d sons of bitches, and said they come to kill us

out that day, and that they were going to fill up a diich with us. The rows con-
tinued until 4 o'clock that evening ; and then the shooting began. They cut us with
swords and beat us with clubs. One cut me in the head with a sword. 'Then we ran
and they shot us with pistols and guns.

Q. Do you know of any persons being shot on that day ? A. Yes. Ben Sheppard,
Adam Patterson, Archey Taylor.

Q. Do you know the name of that supervisor ? A. Edmund Glover.

Q. Do you know whether or not he remained in the room all day, from 6 o'clock a.
m., till 6 o'clock p. m. ? A. No ; he remained there till the row commenced 4 o'clock
in the evening.

Q. Do you know whether or not he returned after coming out of the room at 4
o'clock ? A. No. I saw two of the Democrats leading him down. The Democrats
were dressed in red shirts. I saw them leading him down the steps.

Q. How do you know that he did not return? A. After they led him down the
steps he went across the field and fcook to the swamps to save his life.

Cross-examined :

Q. What was the names of the two Democrats that were leading Glover down f A.
I don't know them.

Q. Why did you take them to be Democrats ? A. Because they were white men,
and dressed in red shirts.

Q. Did they have hold of Glover T A. One on each arm.

Q. Were they violent towards him while they were leading ? A. Yes ; they seemed
to be forcing him down the steps.

Q. Did you see any of them strike Glover ? A. No.

Q. Why, then, did you say that he ran for his life across the swamp f A. Because
they were cursing him all day, and if he had not run they would have shot him like
they did us.

Lucius Barnes (p. 119) testifies on cross-examination as follows :

Q. Don't you know Glover got scared and left of his own accord ? A. I don't think
Glover left of his own accord, I know he would not.

Q. Were those men who were leading him down using any violence ? A. Did not
see them use violence, heard them tell Mm to escape for his life.

~ Q. State what occurred at the Lawtonville precinct that day. A. Wben we were
going to the poll that morning they commenced cursing us, sons of bitches, saying
what they were going to do with us that day, and after that the Democrats made a
line to be divided ; said we must stav on one side and the Democrats on the other,
and we done so rather than have any fuss, but the Democrats would keep coming
over on our side and keep cussing us, and knocked some of the men, and told us if
we didn't leave there they were going to play hell with us that day ; so we never left
right off, but made up a little fire and stood around there until about 4 o'clock, and
then, rather the horse cavalry, went up the road and came back, and commenced
knocking and shooting and cutting, and stabbed me in the temple with a sword, and
then we had to leff. They told us if we did not leff they would kill us. Adam Pat-
terson was one that got shot, and Archie Taylor and Benjamin Sheppard got shot.

Albert Hunter (p. 122) testifies :

Q. Did you vote ? A. Yes.

SMALLS VS. TILLMAN. 471

Q. Tell us what kind of a row it was that was raised at 4 o'clock in the afternoon?

A. We were sitting around a fire. Two men went in the rear of us to a graveyard.
About fifty men went down the road on horses. Two came opposite us where we were
sitting at the fire. The two that went to the graveyard then commenced shooting.
By the time they started to shoot the horsemen came back. When they got back they
charged In on us, and tried to run over us with their horses, knocking us with clubs,
chopping us with swords, until they got us scattered from around the trees. When
they got us scattered from around the trees and we commenced to run they com-
menced to shoot us.

Q. How many men got shot? A. Three that I know of.

Q. Do you know the names of these three men ? A. Ben Sheppard, Adam Patter-
son, and Archer Taylor.

Q. When you got up to vote did you see any Republicans in the room where the
voting; was going on ? A. None but the supervisor.

Q. Did that supervisor remain in that room until the votes were counted that night f
A. Xo ; he was there until the fuss commenced.

Q. Did you see anything of him during this fuss ? A. I saw two white men lead
him down the road.

Q. Have you seen anything of him since ? A. No.

Q. Did any one attempt to prevent you from voting when you went up to vote T
A. No.

Q. Is not Lawtonville a large Republican settlement ? A. It is a large Republican
settlement.

Q. How many Republican clubs in that settlement that go to Lawtonville to vote ?
A. Two.

Q. Do you know of any threats or any shooting of guns by the Democratic party
on the night previous to the election ? A. They said when they passed my house that

they were going on to Lawtonville, and that d d Republicans could come on t here ;

that they were going to fill up a ditch with them.

Q. Was there any shooting of guns ? A. Yes ; they were shooting guns and pistols
along, the road and holloaing all the time.

From the testimony at the pages referred to it will be seen that by
reason of this violence a large number of Eepublicans were not per-
mitted to vote at this poll ; that the poll was largely Eepublican had
they been permitted to vote ; that the Eepublicaus were organized in
clubs and were there to vote, and because of violence and intimidation,
and because of the fact that the supervisor was driven away and pre-
vented from discharging his duties, your committee are of opinion that
this poll should be rejected.

VAKNSVILLE.

It is claimed that this poll is not included in the notice of contest, but
it seems to be amply covered by specifications 4th, 5th, 15th, and 16th.

This box contained 817 ballots, which was an excess of 229 ballots
over the number of names on the poll-list. There were drawn out 160
Eepublican tickets and 69 Democratic tickets, and the poll is stated as
459 Democratic votes and 129 Eepublican. Over 80 Democratic and
two Eepublican tickets were found to contain an extra ticket.

There is no means of ascertaining the true vote at this poll. It is cer-
tain that the official return is utterly unreliable, and on the following
testimony your committee are clearly of the opinion that the poll should
be excluded.

VARNSVILLE, HAMPTON COUNTY.

S. J. Gantt, supervisor (p. 123), testifies :

Q. Did you remain there during the day ? A. I remained there during the day till
the vote was done counted.

Q. Do you know the number of votes said to have been cast there that day T A.
By my memory, I think the whole number of votes cast was 500 and odd.

Q. Do you remember the number of names on the poll-list kept by the managers ?

472 DIGEST OF ELECTION CASES.

A. I am not sure, but I think the number of names on the poll-list was also 500
and odd.

Q. Was there any more ballots cast than there were names on the poll-list ? A.
Yes, sir.

Q. Do you remember how many more ballots cast than there were names on the
poll-list? A. There were either two hundred and twenty-nine or two hundred and thirty
more ballots than there were names on the poll- list.

Q. Did yon see the ballots that were in excess of the poll-list drawn out ? A. Yes,
sir ; I did.

Q. What was done with these ballots when they were drawn out ? A. They were
thrown in the fire, but I saw them before they were thrown in the fire.

Q. Do you remember the number of ballots that were drawn out from the excess
that were Kepublican ? A. I remember there was (160) one hundred and sixty Itepub-
lican ballots out of the two hundred and twenty-nine or two hundred and thirty.

Q. Do you remember the number of Democratic ballots that were found with one or
more folded with the same ? A. Eighty or eighty-eight.

Q. How many Republican ballots were found with more than one folded within the
same ? A. There were two only.

Q. Was there any difference between the Democratic and the Republican ballots ?-
A. There was a right smart difference.

Q. Please state the difference. A. The color of the Republican ballot was white,
and the Democrat ballot was red. The Democratic ballot was more Jiner and thinner ;
they could be distinguished in the dark in the night by the difference.

Cross-examination :

Q. Were not the excess of ballots from box without seeing them I A. The one
who was counting them, taking them out, never looked at them.

Q. Were not these ballots, on being taken out, thrown immediately in the fire ?
A. They were thrown in the fireplace, and one of the managers told to me to throw them
in the fire. I did not throw them in one by one, some I threw in singly ; others were
in a pile ; a pile here and a pile there.

Q. How, then, do you know the exact number of Republican ballots that were
thrown out f A. Iknoiv, as I counted them as they were drawn out.

Jno. A. Brown (p. 103) testified as follows :

Q. Were any of the Democratic or Republican voters at the polls armed? A. I saw
some of the Democrats armed with pistols, but don't know their names.

Q. How were these men dressed ? A. They had on red shirts.

Q. All of the Democrats have on red shirts or part of them ? A. Only about twenty-
five had them on, I think.

Q. Were any threats of violence made by these men that were armed with pistols
and had on red shirts, made ? A. Yes, sir ; by one.

Q. If you know the man's name state it, and what he did. A. I do not personally
know his name ; only saw him walk up and ask this young man if he intended vot-
ing, and the yoiing man said yes. He then asked him what way he intended voting,
as he was objected to already. The man said he intended voting the Republican
ticket; then this Democrat said, " If you intend voting for Robert Smalls you can't vote
here to-day, but if you vote for T'dlman you can vote." The colored man told him before
he would vote for Tillman he would die and go to hell. Then the row started.
Whilst the row was about to start, the Democratic marshal called on Mr. Gantt, the
Republican supervisor, to stop the row.

Q. Who started this row ? A. The white man. The white man said he belonged
to Captain Lightsey's company ; had been down on Monday before the election to
kill a parcel of you Almeda Republicans, and to-day they intended to have a row out
of us and finish them.

HAMPTON COUNTY CORRECTED VOTE OF CONTESTEE.

The vote is stated 2,590

Deduct Brunson 336

Deduct Early Branch 316

Deduct Beech Branch 120

Deduct Lawtonville 340

Deduct Barnesville 459

1, 571

1,019
Contestant 1,575

SMALLS VS. T1LLMAX. 473

Deduct Brunsou 19

Deduct Early Branch 87

Deduct Beecli Branch

Deduct Lawtonville 174

Deduct Barnesville 129

409

1,166
Small's majority 147

BARNWELL COUNTY.

It is objected on behalf of the coutestee that there is no notice of
contest as to Barnwell precinct, in the county of Barn well, but it seemed
to be amply covered by the 7th, 15th, and 16th specifications of the no-
tice of contest. *

It is immaterial, however, for though the testimony shows that a
party of mounted Democrats were shooting aronnA the polls and be-
having in such a manner as to frighten off some Republicans, the com-
plaint as to this box is not proven.

ALLENDALE.

The following cross-examination of William Green (page 34) is a fair
statement of the evidence as to the violence at Allendale :

Q. When did you make your first attempt to vote ? A. About 12 o'clock.

Q. Why did you wpit till then ? A. J/r. Rivera asked us to wait till then, so ihe
Democrats could votejirst.

Q. Was it agreed then that the Democrats should vote in the morning and the Re-
publicans iu the afternoon T A. Yes.

Q. How many Democrats had voted till 12 o'clock ? A. Don't know ; they voted
all day. They prom ised to give us time to vote, but they did not do it.

Q. Are you well acquainted with the Democrats you saw with pistols? A. I was,
with two of them.

Q. Is it their habit to carry pistols ? A. Yes.

Q. Did they carry clubs or walking-sticks ? A. The clubs were too large for walk-
ing-sticks.

Q. What time did the Republicans leave the poll? A. About 6 p. in.

Q. When the Republicans came up to vote did they come in a body ? A. Yes ; Mr.
Rivers called them up and said that there was room for them to vote, but the Demo-
crate on the piazza would not permit them to enter.

Q. Did the Democrats say that you could vote after 12 o'clock? A. J/r. Rivers told
us to wait on them until then.

Q. At 12 o'c/ocfr did any Republicans push their way in T A. Yes ; but they were
knocked down and beaten by the Democrats.

It is fully corroborated by other witnesses, at pages 31, 32, 33, and
62. The following is from the testimony of the supervisor, Lewis Riv-
ers (page 62 ) :

Q. What time did you get to the poll ? A. At 6 o'clock. I saw the box opened.

Q. Where was the poll held, and how was it situated ? A. It was in an old store
on the counter, near the rear door, the voters going in and out the front ; the box
was about thirty or forty feet from the front door.

Q. Did the voters have free access to the poll ? A. The Democratic party kept a
crowd at the door, obstructing the front door, and compelled colored men to show
their tickets, and when it was found they had Republican tickets they would close the
door and prevent them from entering.

Q. Did you keep a poll-list ? A. I" started to keep one, but saw that it was impossi-
ble to keep one correctly, ami stopped about 1 p. m.

Q. Did the managers give you every facility to discharge your duty ? A. They did.
The reason I was unable to keep a correct poll-list was because the Republicans were
prevented from coming into the poll to vote, and I was compelled to leave the box in
order to try and make a way tor the Republicans to get in. I could not attend to this
and keep a poll-list at the same time. When I went to the door and asked that the

474 DIGEST OF ELECTION CASES.

way be cleared it was done, but as soon as I returned to the box, the passage was
closed again ; it was the same as before. This continued until about 1 o'clock, when
the Republicans went away towards Barker's Mill precinct, as they could not get
into the poll at Allendale. They returned to Allendale about 3 or 4 o'clock and said
that they had been to Barker's Mill and could not vote there.

The same process of obstructing the poll was continued all day.

Q. How many Republicans voted at Allendale that day ? A. Thirty-six Republican
votes were counted and over seven hundred Democratic.

Q. Do these figures represent one vote for each voter at that precinct ? A. I don't
think they did. I noticed, in counting the votes, several ballots were folded together.
I don't think that 700 Democrats voted there.

Q. Were you asked to sign a poll-list and return that night ? A. I was, by the
Democrats, but refused. Quite a number of Democrats came to my house, about 1
o'clock that night, and demanded that I should get up and sign the list. I refused.
They cursed and threatened to break down my door. I still refused. They shot
around the house, alarming my family. The next night they did the same thing. I
concluded it best for my safety to leave and stay away for a while. I remained away
for several weeks.

Q. How many Republicans were prevented from voting there ? A. Between three
and four hundred, who would have voted for Robert Smalls.

Charles Blake testifies (p. 31) as follows:

Q. Did you vote ? A. No. I went with the intention to vote the Republican ticket
with Robert Smalls on it for Congress. When I got to the door the place was crowded
with Democrats : they asked me how I wanted to vote ; I told them the Republican
ticket ; they shoved us off the platform, and said, "You can't vote that ticket here
to-day."

Q. Did you vote at all that day ? A. I did not.

Q. Who shoved you off the platform T A. The crowd of Democrats that were on
the platform.

Q. Were you unable to get to the ballot-box ? A. I was.

Q. Were there any other Republicans prevented from voting ? A. There were two
hundred and forty-six in my club, and about two hundred and fifty more, who were
prevented from voting there that day.

Q. Did the managers open the ballot-box ? A. I do not know.

Q. Where was the poll held ? A. In Fitt's old store ; inside.

Q. Did you at any time see the ballot-box ? A. No ; I could not get close enough to
see it.

Q. Were there many Democrats present ? A. Yes.

Q. Were they armed? A. I saw a few arms.

Cross-examined by Mr. HOLMES :

Q. How many persons went with you to Allendale ? A. Two hundred and forty-six.

Q. How did you go? A. We just walked along together.

Q. Were they 'Republicans or Democrats? A. Republicans.

Q. Were any of them armed with guns, pistols, or clubs ? A. No.

Q. How many persons were there when you reached the pll ? A. A large number.

Q. Were they Democrats or Republicans ? A. Both ; but mostly Republicans.

Q. Were any persons on the piazza of the store where the box was at that time?
A. Yes ; the piazza was filled with Democrats.

Q. Were any of the Republicans in uniform ? A. No ; not one.

Q. How many Republicans were thrown off the platform by Democrats ? A. A good
many. I saw eight.

Q. Were they thrown off because they were Republicans ? A. Yes ; the Democrats,
they did it for that reason.

Q. How many Democrats were thrown off by Republicans ? A. Not one.

Q. How large was this piazza? A. About 15 by 6 or 8 feet wide.

Q. Where were the Democrats stationed who kept the Republicans back ? A. Around
the piazza.

Q. Did any Democrat threaten to injure you ? A. One Democrat drew his pistol on
a crowd of us.

Q. How many colored Democrats are there in Allendale T A. Only one that I know
of.

Jeffrey Frost testifies (p. 33) as follows :

Q. Did you vote? A. No; I could not get to the poll. I went to the poll two or
three times, and the Democrats asked me how I intended to vote. I told them I wanted
to vote the Republican ticket, and they said that I could not vote that ticket there
that day, and shoved me off the piazza.

SMALLS VS. TILLMAN. 475

Q. How many other Republicans were prevented from voting in the same way?
A. About three hundred that I know of.

A. Were there many Democrats on and around the piazza ? A. Yes; a crowd of
them.

Q. If the Republicans had persisted in trying to vote do you think there would have
been trouble ? A. Yes.

Cross-examination by Mr. HOLMES :

Q. Why do you think there would have been trouble ? A. Because those who did
go through the door the Democrats spat upon and kicked them.

Charles Gardener (p. 33) testifies as follows:

Q. Did you vote? A. I tried to vote, and the Democrats asked me what ticket I
wanted to vote, and when I told them I was going to vote for Garfield and Smalls
they said I could not vote that ticket. They tried to get me to give them my ticket.
I would not, and they shoved me off the platform.

Q. About how many were with you wanting to vote same ticket ? A. I tried to vote
twice ; about two hundred and fifty.

William Green (p. 34) testifies as follows :

Q. Did you go to Allendale on the day of the election to vote? A. I did, but did
not vote, because the Democrats stood in the piazza and would not let us in. I dis-
tributed about 300 tickets, and went on the piazza to vote. I was thrown off, and
some who went with me were beaten and thrown off. I tried about half a dozen .times
to vote and was violently ejected each time by Democrats who had pistols and clubs
in their hands.

Q. Did you see any Democrats with pistols and clubs ? A. I saw about half a dozen,
at the door with pistols. I know the names of three of them.

Cross-examined by Mr. HOLMES :

Q. When did you make your first attempt to vote ? A. About 12 o'olock.

Q. Why did you wait till then ? A. Mr. Rivera asked us to wait till then so the Dem-
ocrats could vote first.

Q. Was it agreed then that the Democrats should vote in the morning and the Re-
publicans in the afternoon? A. Yes.

Q. How many Democrats had voted till 12 o'clock ? A. Don't know ; they voted all
day. They promised to give us time to vote, but they did not do it.

Q. Are you well acquainted with the Democrats you saw with pistols ? A. I was
with two of them.

Q. Is it their habit to carry pistols ? A. Yes.

Q. Did they carry clubs or walking sticks ? A. The clubs were too large for walking-
sticks.

Q. What time did the Republicans leave the poll? A. About 6 p. m.

Q. When the Republicans came up to vote did they come in a body ? A. Yes; Mr.
Rivers called them up, and said that there was room for them to vote ; but the Dem-
ocrats on the piazza would not permit them to enter.

Q. Did the Democrats say that you could vote after 12 o'clock? A. Mr. Elvers told
us to irait on them until then.

Q. At 12 o'clock did any Republicans push their way inf A. Yes; but they were
knocked down and beaten by the Democrats.

Upon this testimony this poll must be rejected.

In this county the governor appointed Gilbert Hogg as a Eepublican
upon the board of election commissioners, and he testifies at page 64 that
the first notice of a meeting which he received was to meet on the "day
of election at Barnwell."

Then, of course, the other two members of the board had appointed
all of the managers, and every manager and clerk was of the contestee's
political party, and the testimony as to their conduct indicates that
many of them were not only partisans but very unscrupulous ones. On
page 05 Hogg testifies :

Q. Did the Republicans ask for the appointment of managers to represent them at
any of the polls in this county ? A. Mr. Xix, the Republican county chairman, asked
for the appointment of one manager at each poll, and gave me a list of names who
were recommended. Xone of them were appointed.

Q. You met with the commissioners as a board of canvassers after the election ? A.
Yes.

476 DIGEST OF ELECTION CASES.

Q. Was there any conversation in the board about the number of votes that had
been cast in Barnwell County ? A. There was. It was said by the commissioners that
there were more votes cast than there were voters in the county. The clerk wanted
to know what was to be done about it. I asked what was to be done about it, and it
was decided that we should count the votes as returned, and that it was not our fault
that there was an excess. There were some mistakes in the poll-list, and the com-
missioners said that they could not fix it. I don't remember what was the excess of
the votes of the county, but it was two thousand or more.

The votes claimed for the contestee in this county are 5,422, yet by
the census taken the same year there are only 3,131 white males 21
years old in the county, so that to have gotten this vote the contestee
must have received the vote of every white male over 21 years of age
in the county, and of 2,391 colored voters in addition. Besides the
very great improbability that a very considerable number of colored
people voted for the contestee is the fact that the whole vote as certi-
fied is 7,867, and it is proven that 1,148 .Republicans were prevented
from voting, making 9,015, and the census shows only a total of males
over 21 years of age of 7,906.

The spirit of the election is illustrated by a few extracts of the testi-
mony. At page 21 is the following from A. J. Singleton :

Q. Were these men who were prevented from voting Democrats or Republicans .'
A. All who I saw rejected attempted to vote the Republican ticket, with Smalls on it
for Congress.

Q. Do you know of any violence or intimidation at or before the election against
the Republicans ? A. There was riding up and down in the neighborhood by the
Democrats several nights before the election, beginning on Thursday, continuing
Friday and Saturday night, who were shooting, cursing, and making a great deal of
noise.

William Fogler (p. 22) testifies :

Q. Tell us about the entrance to the poll. A. A railing was erected in front of the
door about 10 feet high. The guards kept the people outside of that rail, the object
being to keep the voters out Republican voters.

Q. Did the managers or clerk have on red shirts? A. They all had on red shirts.

Q. Was there any intimidation or violence before the election ? A. There was.
The Democrats was riding and shooting from about three nights before the election
until the election.

C. H. Hopkins (p. 24) testifies :

A. Yes; it was general. Saturday before the election they came to my house,
and discharged their guns and pistols. This was about 3 a. m. They went through
that section shooting, &c., three nights before the election ; they went to Alex. Gill's
house, who was vice-president of our club, and left a coffin cut from a pastc-liourd
box, and wrote on it : "Alex. Gill : If you don't quit your ways and join the Democ-
racy you shall be in the clay in a few days."

Q. Why did they go to your house ? A. I am the president of the club and pre-
cinct chairman.

Q. If the vote had been counted as cast would that poll have gone Republican ?
A. It would have gone Republican. C. F. Calhouu, one of the Democratic munaunx.
said to me during the day of election that "yon are giving us the devil in voting,
but we will give you the devil in the count."

Silas Caves testifies (p. 20) as follows :

Q. Did you vote ? A. No.

Q. Who' did you intend to vote for for Congress ? A. General Robert Smalls.

Q. Why did you not vote ? A. There were so many Democrats present, uniformed
in red shirts and armed with pistols and sticks, and acting in such a threatening
manner, and crowded the entrance to the polling places that it was impossible for us
to vote. I went away with the crowd of Republicans, numbering about three hun-
dred and fifty, who like myself were unable, through threats and fear, to vote the
Republican ticket.

Q. Did any Democrats threaten the voters at this poll ? A. I heard quite a number
who were on the steps blocking the way to the polls say, "By God, you sha'u't vote
unless you vote the Democratic ticket, as we are voting." Some of the red-shirts
were preventing the Republicans from coming within the yard of the house in which
the poll was, saying that " they'd be d d if niggers should vote there."

SMALLS VS. TILLMAN. 477

Q. Do yon know of any intimidation before the election? A. It was a common
tiling, a short time before the election, for the Democrats to ride up and down at
night, making the night hideous with noises and curses to intimidate the Republicans
of the county. During the week prior to the election they visited my house twice.
The tirst time I was not at home. The second time they came I left ruy house and
took to the woods, fearing they would kill me because of my politics. They fired
pis' ids nightly for the purpose of striking fear in the hearts of the colored people.
All the Republicans were terrorized, they never having heard or seen such things
before.

The vote of Barn well is stated :

Contestee. Contestant.

5, 422 2, 445

Deduct Allendale 700 36

Deduct votes illegally drawn, Ferril's Store 22

4, 700 2, 409

Add vote not counted, F.rril'sStore 22

2,431

These are the only changes in the official statement of the vote in this
county which your committee recommend, but they desire to call es-
pecial attention to the following extracts from the testimony for the
purpose of showing the spirit and mode of conducting the election in
this county :

Frederick Xix, jr., at p. 715, testifies :

Q. Was it not understood and agreed upon just before the last general election, be-
tween yourself, as Republican county chairman, and E. J. Snetter, and other Repub-
lican supervisors of election, that they should leave the ballot-boxes at Elko, Gra-
ham's, Barker's Mill, and Allendale before the voting and the counting of the votes
was completed, for the purpose and with the understood design of contesting the elec-
tion of George D. Tillman to the House of Representatives from the fifth Congressional
district of the State ?

(Contestant, notwithstanding the question being irrelevant at this stage of proced-
ure, consents that the question should be asked and answered.)

A. It never was, and I never heard of it before. I did not expect the supervisors
to remain at those and other precincts, from what was told to me by various Demo-
cratic precinct chairmen, one of whom is sitting down by me, that the Republican can-
didate for Congress would be counted out.

As to Millett's, Thomas Roberts testifies (p. 61) :

Q. In what polling precinct do you live ? A. Millett.

Q. Did you go to Millett at the last general election to vote ? A. No : I wanted to

fo there, but it was rumored that if the Republicans went there to vote they would
e killed, and I started to Red Oak; but about half a mile from the poll a party of men
met us in the road and fired over our heads, and the Republicans scattered. About a
mile from there, on another road, another party of Democrats met us and fired oft 7 their
pistols. We became alarmed and ran away home. I did not vote that day, but I in-
tended to vote the straight Republican ticket. I slept out in the woods for nearly a
week for fear of being killed. The colored people were very much alarmed in that
neighborhood. There were many others in the party when the firing took place, and
u-ere afraid to have home and go to the poll.

John Woodward testifies (p. 15) as follows :

Q. What is the nighest polling place to where yon live? A. Millett.

Q. Did you vote there ? A. I was afraid to go there.

Q. Why ? A. Because of threats to kill any Republican who went there to vote.
I started to Red Oak, and a half mile from the poll were met by a party (16) of
mounted Democrats, who fired their pistols over us, and our party broke and ran away.
I went home, but slept in the icoods for three or four nights. We had not got over the
Elleuton riot, and could not stand to see them tote " them guns." The colored people
were much scared in the neighborhood. I was going to vote the straight Republican
ticket. I know of about eight Republicans who ran off and did not vote. They
would have voted the Republican ticket.
Cross-examined by Mr. HOLMBS:

Q. By whom were these reports that the Republicans would be killed if they voted
the Republican ticket at Millett's ? A. By the Democrats.

478 DIGEST OF ELECTION CASES.

Q. How do you know that it was started by them ? A. / know it because they pu1 out
the report.

Calvin Brown (p. 39) testifies as to Williston :

Q. Who was the supervisor at this poll ? A. A. W. Gantt.

Q. Did he stay there all day ? A. No; he did not.

Q. Was he there when the vote was counted ? A. Ye.

Q. Do you know why he left? A. Mr. John D. Brown, a marshal, ordered him out.
He objected to any supervisor being around the box. It was his house where the poll was
held.

Q. Did you hear him order the supervisors? A. Yes; he told me that he had re-
ceived a dispatch from Judge Bryan that no supervisor had a right to be around the
poll.

Q. Is Brown the sergeant-at-arms of the house of representatives ? A. Yes.

Q. Was Brown claiming to be and acting as an officer of any kind that day ? A.
Yes.

Q. Did he have on a badge ? A. Yes.

Q. When Brown told them to go out, did he request them to go oiit? A. He said,
"I will allow no supervisor in my house ; " that he had received a dispatch from Judge
Bryan not to allow any supervisor inside the poll.

G. W. Gantt, supervisor (p. 57), as follows :

Q. Were you at Williston on the day of the election as supervisor ? A. Yes.

Q. Did you keep a poll-list ? A. ,No ; I started to do so, but was arrested by J. D.
Brown, who claimed to be an officer, with a badge on, and put me out of the house.

Q. Was it possible for you to keep any check on the managers without keeping a
poll-list ? A. No.

E. J. Snetten, United States supervisor at Elko (page 59)]:

Q. Was there any railing or anything to keep people out ? A. There was a pen in
front of the door 4 by 6 feet, giving space enough for one man to enter at a time.

Q. Were the managers Kepublicans ? A. No ; they were all Democrats.

Q. Did you remain at your post all day ? A. I did not ; at the opening of the poll
I requested to enter the house where the poll was, but was refused admission by one
of the managers, who said that the managers were all honest, and said that I must go
into that pen. I went into the pen and started to keep a poll-list. Soon after some
came up to vote and whispered their names. When I asked them for their names the
managers told them not to give their names, as I had no right to take them. This
happened a great many times, and I was unable to get the names of voters ; there
were Democratic voters; there was a great deal of cursing and loud noise by the
Democrats ; one Dimond made many threats and cursed me, saying that some boys
would be up here to-day to see into those big eyes. Many of them were under the
influence of whisky ; there was a man standing beside me w r ho brandished a large re-
volver, and I thought that he was going to shoot me ; I heard some yelling, and a
crowd of about 25 men rode up with red shirts on, and this man said, " Here are the
boys that will see in Snetten's big eyes; " they dismounted and crowded the poll, and
the pen in which I was was torn apart, and, fearing personal injury, I took my things
and left the poll.

Q. Were you afraid to stay there ? A. I really was ; it would not have been safe.

Q. What time was this? A. About 8.45 a. m.

Q. How many Kepublicans had voted at that time? A. Not more than three, I
think.

Q. How many Democrats ? A. About forty or fifty.

Q. Why more Democrats thau Republicans ? A. The Democrats were making so
much noise that the Republicans were afraid to go up to the poll to vote.

Allen P. Patterson (p. 45) :

Q. Did yon stay there all day ? A. No.

Q. Why did you leave ? A. A company of Democrats came from towards Black-
ville : they dismounted and crowded the poll, threaten ing the Republican supervisor j
they tore down a pen in front of the poll ; they were drunk, and created a great alarm
among the Republicans, causing them to leave the poll for fear of being hurt.

Q. Did you hear any of the managers say anything about the voting ? A. Mr.

Nixon, the chairman of the board of managers, said that " d d if the Republicans

would get many votes there that day."

Daniel Patterson (p. 40) :

Q. Were the Republicans afraid because of the conduct of the Democrats to stay
there that day ? A. They said they were. I was.
Q. Did you hear either of the managers say how many Republicans would be polled

SMALLS VS. TILLMAN. 479

there that day ? A. I heard Mr. Nixon say that there would be d d few Republican

votes polled there that day.

C. C. Kobinson, United States supervisor at Ferrill's Store, testifies
(p. 38) :

Q. How was this excess drawn out ? A. The manager looked in the box and drew
out the excess.

Q. The manager ivas not blindfolded? A. He was not.

Q. How many Republican votes were drawn out ? A. Twenty-two.

Q. Were there any ballots found in the box inclosed in other ballots ? A. There
were 18.

Q. What was the character of these ballots ? A. One Republican and 17 Democratic*

Q. Were the managers Republicans or Democrats ? A. All Democrats.

Q. Did you see each Republican cast his vote there that day ? A. Yes.

Q. Can you tell how this excess was created ? A. Yes ; the managers said that the
ballots found folded together were regularly voted, and unfolded and counted them in the
total number of votes cast, and when the excess was found to be 22 the managers,
drew out 22 Republican ballots.

M. G. Young (p. 43) testifies as follows :

Q. Were you present when the polls closed, and did you see the managers count
the votes ? A. Yes.

Q. Do you know how many ballots came out of the box with more than one in them f
A. Seventeen.

Q. What kind of ballots were they ? A. Democratic.

Q. Were there any Republican ballots so folded ? A. Yes, one.

Q. Did the managers compare the number of ballots in the box before they ascer-
tained for whom they were cast ? A. They opened them all and counted them all r
and then compared them with the names on the poll-list ; then they destroyed the ex-
cess of 22 ballots.

Q. How were the 22 ballots drawn out ? A. One of the managers looked in the
box, picked out 22 Republican ballots and destroyed them.

Q. Whose name did the Republican ticket have on it for Congress? A. Robert
Smalls's.

These facts are admitted with a boastful frankness on page 83 of the
coutestee's brief.

These 22 ballots illegally taken from the contestant should be re-
stored, and the same number of fraudulent ballots illegally counted for
the contestee should be deducted.

BARKER MILL.

James McMillen testifies (p. 18) as follows :

Q. Did you go to Barker's Mill on the day of election for the purpose of voting, and
did you vote ? A. I went to the poll at 6 a. m., but the poll did not open until 8.30 a.
m. ; remained until about 4 p. m. ; being unable to vote, as the Democrats in uniform,,
armed with clubs and pistols, barred the way and prevented the Republicans from,
voting, we all went home and did not vote at 'all. Dave Norris and Ben Myric, active
Democrats, told the people that if they would vote the Democratic ticket they would
be permitted to do so, but they would not be allowed to vote the Republican ticket*
The Republicans, being afraid of violence if they persisted in voting as they desired,
finally went home without voting.

C. F. Cave (p. 18) testifies:

Q. Do you know of any intimidation or violence during or preceding the election
by Democrats ? A. I do. On the Thursday night before the election a mounted party
came to my house and attempted to call me out, but I refused to go. They said that
if they heard any more threats they would come back again, but I must look out for
Tuesday anyhow. I heard a great many parties riding around the county threatening
the people.

Felix Hayes testifies (p. 19) as follows :

Q. Did you vote? A. I did not.

'Q. Why? A. I went to the poll about 6 a. m., and found that no poll was opened.
The poll opened about half past eight, but I was prevented from voting by the Dem-
ocrats, who were armed with pistols and clubs, wearing red shirts, and threatening-

480 DIGEST OF ELECTION CASES.

the Republicans. I would have voted for Robert Smalls for Congress if I had been
permitted to vote.

Q. Were many Republicans prevented from voting that day f A. About three hun-
dred aud fifty.

Robert Bradley testified (p. 19) as follows:

Q. Did you go to Barkers Mill on the day of election to vote, aud if you did not
vote, state why? A. I went to the poll about 6 a. m., and staid until 4 p. in. I did
not vote, as a large number of Democrats were present in uniform, armed with pistols
and clubs, and who prevented any one from voting the Republican ticket ; had I been
permitted to vote I would have voted for Robert Smalls for Congress, as would the
other Republicans who were prevented from voting, numbering about three hundred
and fifty.

It will be borne in mind that this is one of the counties of this district
from which no precinct returns and poll-lists were sent to the State
board, and that fact being taken in connection with the gross miscon-
duct as evidenced by the testimony, extracts from which are given above,
it has been a question with your committee whether the vote of the en-
tire county should not be rejected. If proper returns had been made to
the State board they would have furnished the means of ascertaining
ami correcting the vote of this county, but as the conclusions at which
your committee have arrived renders it unnecessary to reject this
entire county, because its rejection would not change the result, your
committee has deemed it best only to reject the vote of Alleudale pre-
cinct, as to which the facts are conclusively shown by the testimony,
and to correct the vote at Ferril's Store, so as to give each party the
vote actually received.

COLLETON CO. WATERBOEOUGH PRECINCT.

The testimony shows conclusively that the mode of managing this
poll was most unfair; that the managers were under control of the
Democratic county chairman, who was also chairman of the commis-
sioners of election, who appointed all of the managers from one party,
and appeared also as the attorney for the contestee. The following ex-
tracts show something of the methods resorted to :

Testimony of William A. Paul (page 336) :

At the opening of the ballot-box the managers found the box to contain one thou-
sand aud thirty-six ballots; at the closing of the polls the amount of the poll-list was
eight hundred and ninety-five ballots; the excess found in the box was one hundred
aud forty-one according to my account. After the box was opened the managers were
quite undecided as to how they would stir the votes up, and they were for some time
devising a plan how they could mix them so as to take out the excess over the poll-
list and to take out a majority of Republican ballots if possible, which they succeeded
in doing ; and I found after they had commenced to draw the ballots from the box
when they would draw out two Democrat ballots and destroy them they would
draw out from five to six Republican ballots and destroy them also ; and one of the
managers was blindfolded who was required to draw the ballots, and turning his back
to the table upon which the box was placed, the box being set into a large stick-
basket, the box not being able to hold the ballots after being thoroughly stirred, they
then stirred the ballots into this basket, from which they drew the excess of the poll-
list. The manager who was required to do the drawing deliberately passed the ballots
through his hands; by so doing one ballot was easily distinguished from another;
they succeeded nicely in carrying out their -premeditated plan.

Also the testimony of Daniel Sanders, on p. 370 :

Then came the confusion about the votes ; both Republicans and Democrats crowded
around the box ; the box was opened in the presence of all ; the law was furnished
the managers how they should proceed before counting votes ; the box was so full that
the ballots could not be mixed according to law. The box was set into a stick-bas-
ket ; one of the managers tried to mix the votes in the box, and he failed to mix them,
and then emptied the votes into the basket. Then the managers got confused how
they would mix them ; they stirred them up ; they brought two-thirds of the tickets,
as well as I could see, to the top were Republican tickets ; then the manager com-

SMALLS VS. TILLMAX. . 481

menced drawing ; they drew for a vrliile from the top, and, as well as I could see, the
manager sometimes would draw from the bottom. All this occurred after counting
the number of ballots in the box. There was, to my recollection, 140 ballots in excess
of the names on the poll-list ; then the ballots were "put back into the box 130 drawn
out, to the best of my recollection. While drawing, or before drawing, they were
stirred up again in the same basket : then one of the managers was blindfolded ; he
dre\v out about twenty Democratic ballots would not be positive to that number
and the balance were Republican ballots.

It is clear that there were from 90 to 110 votes illegally taken from
the contestant at this poll, aud the same number illegally given to the
coutestee.

The entire conduct of the election in Colleton is most discreditable to
tbo.se who had it in charge. Except one Republican on the county
board, appointed by the governor, and who was outvoted by the other
two, every election officer was appointed from the coutestee's partisans
save one manager at Green Pond poll, and their sole purpose, appar-
ently, was to subserve his interests. Three large Republican precincts,
Adams' Run, Ashepoo, and Bennett's Point, having been abolished, this
vote was thrown to Glovers rille and Jacksonborough. The Democratic
managers at Gloversville did not open the poll on the day of election,
and to Jacksonborough the commissioner sent the smaller of two sizes
of boxes. At one o'clock this box was full of ballots.

It contained 618, and the managers refused to use another, though
over 100 Republican voters were standing at the polls waiting to vote,
and others were in sight approaching. Whilst neither the county nor
State board had under the plain wording of the statute, which has been
construed by the State court of last resort, any judicial power as to
the vote for Congressman, yet they threw out this box, depriving the
contestant of not less than 618 votes, and without any assigned, known,
or apparent reason the board failed to canvass the 276 votes polled for
contestant at Horse Pen. (Record, pp. 353, 354, 355, 356, 357, and 378
and following.)

Besides the failure to open the Gloversville poll, whereby contestant
lost 400 votes, the testimony shows that he lost 700 more by the failure
to open the Summerville poll, where a large number were actually
present and listed ; besides, more than a hundred votes were lost by
illegally closing the poll at Jacksonborough.

At Delama, also, the manager failed to open the poll, whilst at Snider's
Cross-Roads, Smoak's Cross-Roads, and Carter's Ford the supervisors
were hindered and obstructed in the discharge of their official duties.
At Maple Cane 26 Democratic ballots were stuffed into the box, and
25 Republican were withdrawn, whereby the contestant lost that num-
ber of legal ballots, and the same number were left to be, and were,
counted for the contestee.

At Bell's Cross-Roads 31 of contestant's votes were withdrawn and a
like number of fraudulent ones counted for the contestee. In this county
alone it is shown that from 1,400 to 1,800 Republican voters were deprived
of an opportunity of voting by failure. to open and illegally closing polls,
whilst 223 fraudulent ballots were stuffed into the boxes.

A. P. Holmes (p. 379) testifies:

Q. What kind of a box did they send to Jacksonborough and other strong Repub-
lican precincts, where large number of votes are usually polled f A. They were all of
a smaller size box, there being two sizes; though the box seat to Jacksonborough
would have been ample large enough to have held the votes of that polling precinct
if the Gloversville polling preciuct had not been closed, the next nearest voting place.

Q. How many polling precincts were not opened during the election day ? A. Three.

Q. Were or were they not usually strong Republican precincts f A. Two usually
give large Republican majorities; the third one a small Democratic majority.

H. Mis. 35 '<!

482 DIGEST OF ELECTION CASES.

Q. Did the commissioners of election canvass at all the votes of the Jacksonbor-
ough precinct ? A. They did not.

Q. Then none of the votes cast for Robert Smalls at the Jacksonborough precinct
\vere counted for him by the commissioners ? A. They were not.

Q. Were there any polls where the managers failed to canvass any votes for Con-
gressman ; and, if so, at what polls? A. The managers of election at Horse Pen poll
made no returns for members of Congress to the board of canvassers ; the whole num-
ber of votes cast at that poll was two hundred and seventy-six. On examination of
the ballot-box, as presented to the board of canvassers, ballots were found in the box
containing the name of Robert Smalls for Congress.

Q. Is not Jacksonborough one of the strongest Republican precincts in the county?
A. It is among one of the strongest in the county.

Q. Was the Republican vote at Jacksonborough largely increased at this election?
If so, state the cause. A. Gloversville polling precinct having been closed on election
day, and the precinct at Adams' Run, Ashepoo, and Bennett's Point having been
abolished, necessarily increased the voters at Jacksonborough.

Q. Were they all Republican precincts ? A. They were all largely Republican pre-
cincts.

Q. Is Jacksonborough the nearest point or the most convenient to the voters of those
precincts you have named ? A. It is to some.

Q. Is it to most of them ? A. It is.

Page 385 :

Q. Did you, as a member of that board, object to the way in which the commis-
sioners, or a majority of them, proceeded, to canvass the votes ? A. I did. I objected
to the canvassing of the Walterboro' precinct, where the statement of the managers
gave a total number of the votes cast and returned of nine hundred and fifteen, whereas
the managers' own poll-list called for eight hundred and ninety-five names of voters
I objected to the excess vote of twenty that has been reported. I objected to the re-
turns of the managers made at Horse Pen of two hundred and seventy-six votes, and
returning no vote for Congressman from that poll, or Presidential electors, because on
examination of the box the box was found to contain votes for the Republican Congress-
man and Presidential electors. Also of Snider's Cross-Roads the managers made no
returns for Presidential electors, and on examination the ballot-box was found to have
contained votes for the same. Ridgeville, in like manner, the managers failed to re-
port a total number of votes cast, according to their instructions, and also failed to
return any votes for Presidential electors, and on examination the box was found to
have contained votes for the same. I objected to the manner in which the Jackson-
borough box was disposed of. I also objected to the George's Station returns, for reasons
that the managers failed to return any votes for Presidential electors, and on exami-
nation the box was found to contain ballots for the same; also because the poll-list
called for eleven hundred and sixty-two, and the statement of the managers was eleven
hundred and sixty-six. These were some of the irregularities that caused me to object
to some of the proceedings of the board.

Q. Did you raise these objections and call for a decision on them from the board, or
did you simply take a note of them? A. I raised the objections, and had the decision
of the board of two or three of the most prominent cases named, and they decided by
the usual majority of two not to go behind the returns of the managers, after which I
just called their attention in each instance, and made note of the irregularities.

The vote of the county is certified for

Contestee 3, 475

For contestant - 2, 77

Adding Jacksonborough 618

Horse Pen 276

Walterborough 90

Contestant - 3, 760

Deducting Walterborough, 90

Contestee 3,385

Contestant's majority 375

RECAPITULATION.

Corrected statement of the vote of the fifth Congressional district of
South Carolina :

Tillman. Smalls.

Aiken 3,409 1,058

Hampton 1,019 1, 166

SMALLS VS. TILLMAN.

Barnwell 4, 700 2, 431

Colleton 3, 385 3, 760

Beaufort 391 5, 978

12, 904 14, 393

Smalls' majority, 1.489.

I therefore recommend the adoption of the following resolutions :
Resolved, That George D. Tillman was not elected as a Representa-
tive to the Forty-seventh Congress from the fifth Congressional dis-
trict of South Carolina, and is not entitled to retain the seat which he
now occupies in this House.

Resolved, That Robert Smalls was duly elected as a Representative
from the fifth Congressional district of South Carolina in the Forty-
seventh Congress, and is entitled to his seat as such.

JM). T. WAIT.
J. M. RITCHIE.
S. H. MILLER.
A. H. PETTIBONE.

F. JACOBS. JR.
WM. G. THOMPSON.

G. C. HAZELTOX.
I agree in the conclusion reached in the above report.

A. A. BAJfNEY.

VIEWS OF THE MINOEITT.

The undersigned, members of the Committee on Elections, charged
with the consideration of the contest for a seat in the House of Repre-
sentatives from the fifth Congressional district of South Carolina, sub-
mit the following minority report :

This district is composed of six counties, viz, Barnwell, Colleton,
Edgefield, Beaufort, Aiken, and Hampton. The official returns of the
vote for Congress show a majority of 8,038 for contestee. Contestant
claims that this majority should be wiped out, and himself declared to
have been elected, upon grounds which may be summarized as follows :

1. Because large numbers of votes were cast for him which were not
counted for him by the precinct managers.

2. Because large numbers of votes counted for him by the precinct
managers were unlawfully rejected by the county canvassers.

3. Because from the three counties of Barnwell, Colleton, and Edge-
field the returns and poll-lists were not forwarded to the governor and
secretary of state, as provided for by law.

4. Because of violence and intimidation in all the counties composing
the fifth Congressional district, except Beaufort, whereby, as he claims,
many of his adherents were prevented from voting for him.

These four charges, it is believed, with the testimony adduced in sup-
port of them, comprise the whole of contestant's case. The first three
of them are so connected with the provisions of the election laws of
South Carolina that in order to pass properly and intelligently upon
them it is first necessary to acquire some knowledge of those laws.

The act of 1868 provides that the governor shall appoint three com-
missioners of election in each county, whose duties prior to the election
are simply to appoint three managers of election at each precinct, and
to provide one ballot-box for each election precinct. Within three days
after the election the precinct managers were required to deliver to the
commissioners of election the poll-lists and the boxes containing the bal-
lots, whereupon the commissioners of election became the county board

48 1- DIGEST OF ELECTION CASES.

of canvassers, whose duty it was to count the ballots in the boxes, to
" make such statements thereof as the nature of the election shall re
quire," and to transmit to the board of State canvassers any protests
and all papers relating to the election.

This law, it will be observed, left the ballots in the hands of the pre-
cinct managers of election for three days uncounted, and liable to be
tampered with to aii} T extent which might be desired. To remedy this
evil the following amendment to the election law, approved March 12,
1872. was passed :

SECTION 1. Be it enacted ty the senate and house of representatives of the State of South
Carolina, noiv met and sitting in general assembly, and by the authority of the same, That
all geueral and special elections held pursuant to the constitution of this State shall
be regulated and conducted according to the rules, principles, and provisions herein
prescribed.

SEC. 2. The commissioners of election shall provide one box for each election pre-
cinct. An opening shall be made in the lid of the box, not larger than shall be suffi-
cient for a single ballot to be inserted therein at one time, through which each ballot
received, proper to be placed in such box, shall be inserted by the person voting, and
by no other. Each box shall be provided with a sufficient lock, and such box shall
be publicly opened and inspected to see that it is empty and secure, and then locked
just before the opening of the poll, and the keys returned to the managers, and shall
not be opened during the election. Each box for such precinct shall be labeled as
follows: "Congress/" 'State," " Circuit," and " County Officers."

SEC. 3. At the close of the election the managers and clerk shall immediately pro-
ceed, publicly, to open theballol-box and count the ballots therein, and continue such count,
without adjournment or interruption, until the same is completed, and make such statement
of the result thereof, and sign the same, as the nature of the election shall require. If, in
counting, two or more like ballots shall be found folded together compactly, only one
shall be counted and the others destroyed ; but if they bear different names, the same
shall be destroyed and not counted. If more ballots shall be found on opening the
box than there are names on the poll-list, all the ballots shall be returned to the box
and thoroughly mixed together, and one of the managers or the clerk shall, without
seeing the ballots, draw therefrom and immediately destroy as many ballots as there
are in excess of the number of names on the poll-list. Within three days thereafter
the chairman of the board of managers, or one of them, to be designated in writing
by the board, shall deliver to the commissioners of election the poll-list, the boxes
containing the ballots, and a written statement of the result of the election in his precinct.

SEC. 4. After the final adjournment of the board of county canvassers, and within
the time prescribed in this act, the chairman of said board shall forward, addressed
to the governor and secretary of state, by a messenger, the returns, poll list, and all
papers appertaining to the election, the said messenger to be paid his actual expenses
upon a certificate to be furnished him by the secretary of state. Said certificate
shall be paid out of the funds provided for the payment of commissioners and man-
agers of election.

SEC. 6. All acts or parts of acts in any way conflicting with this act are hereby
repealed.

The further duties of the county board of canvassers are as follows :

SEC. 18. They shall make separate statements of the whole number of votes given
in such county for Representative in Congress, and separate statements of all other
votes given for other officers. Such statements shall contain the names of the per-
sons for whom such votes were given, and the number of votes given for each, which
shall be written out in words at full length.

SEC. 13. There shall be prepared by the commissioners three separate lists of each
statement, besides the lists to be filed in the office of the county clerk or secretary of
state, and each list shall be certified to as correct by the signature of the commission-
ers subscribed to such certificate.

SEC. 20. After the finahadjourninent of the board of county canvassers, and within
the time prescribed in section 15 of this chapter, the chairman of the board shall de-
posit in the nearest post-office, directed to the governor, secretary of state, and comp-
troller-general (the full postage paid), each one of the certified copies of the statement
and certificate of votes prepared as provided in the last preceding section.

The board of State canvassers is composed of the secretary of state,
comptroller-general, attorney-general, State auditor, State treasurer,
adjutant and inspector general, and the chairman of the committee on

SMALLS VS. TILLMAX. 4*5

privileges and elections of tlie house of representatives, and its duties
are thus prescribed :

SKC. 24. The board, when thus formed, shall, upon the certified copies of Ike statements
made by the board of county canvassers, proceed to make a statement of the whole num-
ber of votes given at such election for the various officers, and for each of them voted
for, distinguishing the several counties in which they were given. They shall certify
such statements to be correct, and subscribe the same with their proper names.

SEC. 25. They shall make and subscribe, on the proper statement, a certificate of
their determination, and shall deliver the same to the secretary of state.

SEC. 26. Upon such statements they shall then proceed to determine and declare what
persons have been, by the greatest number of votes, duly elected to such offices or
either of them. They shall have power, and it is made their duty, to decide all cases
under protest or contest that may arise when the power to do so does not by the con-
stitution, reside in some other body. ,

The power to decide contests conferred by section 26 has been held
by the supreme court of the State not to extend to contests respecting
election to a seat in the House of Representatives of the United States,
on the ground that his power falls within the exception, residing, under
the constitution, in the House itself.

The foregoing comprise all the provisions of law material to be here
considered, and it is in the light of these provisions that contestant's
charges are to be examined.

I. The first of these charges, as summarized above, is, that large
numbers of votes were cast for him which were not counted for him by
the precinct managers.

The election law of South Carolina, as quoted above, provides that if
more votes are found in the ballot-box than there are names on the
poll-list, all the ballots shall be returned to the box and thoroughly
mixed together, and that one of the managers, or the clerk, without
seeing the ballots, shall thereupon draw therefrom and immediately de-
stroy as many ballots as there are in excess of the number of names on
the poll-list. At a number of precincts in the fifth Congressional dis-
trict of South Carolina excessive ballots were found in the boxes and
were drawn put by a blindfolded manager, as required by law. And
the only testimony in the record tending to prove the above charge on
behalf of contestant, is the allegations of some of his witnesses that
discrimination was made in drawing out this excess of ballots at cer-
tain precincts, through which the contestant lost more than his due
proportion of the votes cast for him. On the other hand, as to every
precinct save one against which this charge is made, the officer who
drew out the excess, and one or more of the other officers who wit-
nessed it, were produced, and testified that the drawing was in strict
conformity with the requirements of the law, done publicly, without
seeing the ballots, without discrimination, and with perfect fairness.
And whether tested by their means of knowledge, their intelligence,
their social standing and character, or any other of the tests which are
applied in non-partisan, fair, judicial investigation, where the witnesses
irreconcilably differ, no man who will read the record can hesitate to
believe that the witnesses produced on behalf of the contestee are enti-
tled to superior credit. There is absolutely no unpartisan, non-political
test which can possibly lead to any other conclusion.

It is to be further observed here, that there is no testimony whatever
tending to fix the responsibility for t'ae excess of ballots upon the con-
testee's adherents. Republicans charge it upon the Democrats, and the
Democrats charge it upon the Republicans ; but there is no proof, nor
anything which is offered as proof, by either side upon the subject. Xo
single witness on either side claims to have either seen or heard of a
' tissue ballot," or any other device for the purpose of creating an excels

486

DIGEST OF ELECTION CASES.

of ballots, at any precinct in the entire district. There is some testi-
mony as to voting more tickets than one, on both sides 5 but, if all the
testimony upon this subj ect on both sides be accepted as true, it woulp
not account for as many as fifty excessive ballots in the district.

Finally, upon this subject, if all the testimony offered on behalf of
contestant in support of this charge be taken as true, it would not ma-
terially affect the result of the election. The following is a complete
list of the precincts as to which there is any testimony in the record
tending to prove fraud or unjust discrimination of this character:

Aikeii County, Summerhill

Aiken County, Jordan's Mill

Colleton County, Bell's Cross-Roads

Colleton County, Maple Lane

100

140

Hampton County, Barnsville

160

129

125

398

423

At Snider's Cross-Eoads, Colleton, on the other hand, contestant's
own witnesses show that only one Republican ballot was drawn out,
with a quantity of Democratic ballots, the number of which is not stated,
while at Page & Harberson's Store, in Aiken County, nineteen Demo-
cratic and seven Republican ballots were destroyed.

No testimony on behalf of contestee as to Summerhill precinct, in
Aiken County, appears to have been taken. As to every other precinct,
the charge of discrimination and fraud in the matter of the excess of
ballots is met and answered as fully and completely as it is possible to
meet acharge of that character. Yet, if held to be sustained, it is obvious
from the foregoing statement, in the most favorable view possible for
contestant, viz, that none of the excessive ballots were cast by his adher-
ents, that the sum total of votes thus lost to him, at all the precincts where
discrimination of this character is charged in the testimony, did not
exceed 398.

II. The second charge is, that large numbers of votes counted for
him by the precinct managers were unlawfully rejected by the county
canvassers.

There is not one word of testimony, throughout the entire record,
tending, however remotely, to prove the truth of any such charge as
this.

There were seven precincts in the fifth Congressional district of South
Carolina whose vote for Representative in Congress was not counted,
viz : Jacksouborough and Horse Pen precincts in Colleton County, and
Ethridge's Store, Perry's Cross-Roads, Coleman's Cross-Roads, Caugh-
niaii's store, and Liberty Hill, in Edgefield County. The facts are as
follows :

It has been shown above that in order to remedy the evil in the elec-
tion law of 1868, under which the ballot-boxes were exposed for three
days following the election to the risk of unauthorized and corrupt in-
terference, the amendment of 1872 required the votes to be counted, not
by the county board of canvassers, as required by the act of 1868, but

SMALLS VS. TIILMAN. 487

by the preciuct managers themselves, immediately after the close of the
balloting, aucl in public; and that the precinct managers should further
make and sign, and within three days deliver to the commissioners of
election, a written statement of the result of the election in their pre-
cinct. As the ballot-boxes still remain for three days in the hands of
the precinct managers, it is obvious that this amendment would be
without effect, if the county board of canvassers were themselves still to
count the ballots found in the boxes when they convened one week
after the election, and to make up their statement from the contents of
the boxes at that time. Hence, the county board of canvassers held,
verj naturally and, we think, correctly, that under the law as amended
the counting of the ballots in public by the precinct managers was in-
tended to be final, and that the county canvassers could canvass only
the returns sent up to them by the precinct managers. And they did
canvass the returns of every precinct which were sent up to them ; but
no returns being sent up from the two precincts in Colletou and the five
precincts in Edgefield mentioned, they had nothing which they could can-
vass from those precincts.

At Jacksonborough the ballot-box became so filled with ballots that at
one o'clock p. m. it could hold no more ; whereupon it was agreed, both
by the managers of the election and the Republican supervisor, that,
under the circumstances, they had no authority to open the box and
count the ballot. (See Record, p. 346.) This accounts for the absence
of returns from this precinct.

Some attempt was made to charge the adherents of contestee with
responsibility for the failure to send a box to this precinct large enough
to hold all the ballots which might be offered. The county commis-
sioners of election, however, are the officers charged with the duty of
providing the box for each election precinct. These commissioners con-
sisted of two Democrats and one Republican. The latter admits that
he was present when the boxes were selected for the various precincts
in Colleton County ; that they saw the box selected for Jacksouborough,
and does not pretend that he objected to its size, or suggested the selec-
tion of a larger one. (See Record, pp. 378, 379.) Further, the record
shows that the vote at this precinct at former elections had rarely ex-
ceeded 300, while at this election the box received 618 ballots before it
became full.

Whether the managers might or might not have lawfully provided
another box, and continued to receive the ballots, it is perhaps not nec-
essary here to inquire. The law provided for one box at each election
precinct, and the testimony shows that the polls were closed when the
box became full only after conference and full agreement between the
representatives of both parties as to the propriety of that course. (See
Record, p. 346.)

As to Horse Pen, the other precinct in Colleton County, a return was
sent up by the managers of the election, which, evidently by oversight,
however, omitted the vote for Representative. At three other precincts
in this county, viz, Snider's Cross-Roads, Ridgeville, and George's Sta-
tion, the precinct returns, through similar oversight, omitted the vote
for Presidential electors. But, as conclusively demonstrating the ab-
sence of fraud or corrupt motives, either upon the part of the precinct
managers in making their omissions or upon the part of the county
board of canvassers in adopting the above-mentioned construction of
the election law as amended, limiting their powers to the canvass of the
precinct returns, it needs only to be remarked that every one of these pre-
cincts, as a fact, undisputed, and conceded in the record, gave Democratic

488 DIGEST OF ELECTION CASES.

majorities. (See Record, at pp. 330, 386, as to Horse Pen ; p. 386, as to
Snider's Cross-Roads ; at p. 487, as to Ridgeville ; and at pp. 3H4 and
327, as to George's Station.)

The vote of the five precincts in Edgefield County above referred to
was not canvassed for the same reason, namely, the fact that no returns
were sent up by the precinct managers, and there was, there fore, nothing
which the county board of canvassers coidd canvass. And as to these
precincts not only is it not shown, or claimed even, in the testimony
that any one of them gave a majority for contestant, but it is neither
claimed nor shown that a single vote was cast for him at four of them,
nor that there was any violence, fraud, or intimidation practiced at them,
either. In other words, there is absolutely neither proof nor claim, in
the record, that contestant was not a gainer as to each of these five
precincts, as he unquestionably was as to Horse Pen precinct, in Colleton
County, by the omission of thepreciuct managers to send up returns of
the votes cast at them for Representative in Congress.

It is to be added that in each of these counties, one of the three mem-
bers of the county board of canvassers was a Republican, and that in
each of them the Republican and Democratic members united in sign-
ing and certifying to the correctness of the statement of the result of
the election in such county ; and one of them, the Republican member
of the board of canvassers for Edgefield County, testifies in the Record,
at page 210, that he concurred in the construction of the law that the
board could not canvass the vote of precincts from which no returns
had been sent up. As to the Republican member for Colletou County,
see his testimony at page 388 of the Record.

Our colleagues, the majority of the secoud subcommittee, will find
themselves to have been wholly misled as to the facts in their statement
at page 3 of their report, that these boards " assumed to exercise ju-
dicial powers in throwing out entire boxes, and in not counting the vtoe
polled for Congressman at others, and without any pretense of cause."
They did not throw out a single box, nor did they fail to canvass the
vote for Congressman of any precinct from which the managers sent up
any return to be canvassed.

III. The contestant's third charge is that from the three counties of
Barnwell, Colletou, and Edgefield, the returns and poll-list were not for-
warded to the governor and secretary of state by the chairmen of the
boards of county canvassers of those counties, as directed bylaw ; and
that this omission upon the part of the chairmen, whether originating
in fraud or in ignorant uegbct of legal duty, destroyed the reliability
of the official statements by those fboards of the result of the election
in those counties, from which statements the board of State canvassers
made up their statement of the result of the election in the fifth Con-
gressional district.

Strictly speaking, there is no competent evidence that there was any
such omission as charged. As a matter of fact, however, it appears
that the election officers in some counties of the State, having construed
the requirements to forward the returns and poll-list " to the governor
and secretary of state," as imposing the duty of sending one set of those
papers to the governor and a duplicate set to the secretary of state r
the latter officer, just prior to the election, issued a circular to the effect
that it was not necessary to send poll-lists to the secretary of state
which instruction, it would seem, was understood by the chairmen of
the boards of canvassers in the three counties named as dispensing witli
the necessity of sending up such papers at all.

If it be conceded, however, that these papers were not sent up from

SMALLS VS. TILLMAX. 489

the three counties in question, as directed by law, and pven if it were
held though there is no shadow of testimony to that effect that the
omission was willful, rheie are two propositions which, to the under-
signed, appear to be too clear to admit of an intelligent difference of
opinion as to them, viz: (a) That such omission cannot beheld to have
the effect of invalidating the reliability of the official statements of the
result of the election made by the county boards of canvassers, as con-
tended by the contestant ; and, (b) That such omission could not pos-
sibly have in any manner affected the rights of the contestant, for the
reason that the State board of canvassers could not have considered
those papers had they been sent up as directed.

(a) By reference to section 4 of the amendment to the election law
of South Carolina, of March 17, 1872, quoted above, it will be seen that
the duty of forwarding the papers in question is imposed, not upon the
county board of canvassers, but, after its final adjournment, upon the in-
lUridiKtl irho had been its chairman. Upon what possible principle can
it be said that any omission of duty, whether fraudulent or merely neg-
ligent, upon the part of such individual, after the board of which he
was chairman has finally adjourned and gone out of existence, shall de-
stroy, or in any manner invalidate the reliability or legal effect of the
concurrent, unanimous, official act of the entire board, Republican and
Democratic members alike ?

(b) The papers in question, it will be further observed, are directed
to be forwarded, not to the State board of canvassers, but to the gov-
ernor and secretary of state. The governor is not even a member of
the State board ; and, although the secretary of state is, yet not only
is there no direction that the papers in question shall be submitted to,
or considered by, that board, but, as will be seen by reference to the
law prescribing the duties of the State board, quoted above, they are
expressly and specifically required to make up their statement " upon
the certified copies of the statements made by the board of county canvass-
e r\." and upon those statements it is enacted that they shall "proceed
to determine and declare what persons have been, by the greatest num-
ber of votes, duly elected to such offices," &c.

Upon these grounds, therefore, we hold it to be clear, beyond the
possibility of an intelligent difference of opinion, that the omission of
the three individuals who had served as chairmen of the boards of can-
vassers in the three counties of Edgefield, Colleton, and Barn well to
send the returns and poll lists from those counties, after the adjourn-
ment of their respective boards, to the governor and secretary of state,
is not even an element to be considered in this case. It has absolutely
no possible bearing, either one way or the other, upon the rights of
either of the parties to this contest. The sending of them up could
not have benefited either, nor can the omission to do so justly injure
either.

IV. The fourth and remaining charge is, that throughout all the
counties of the fifth Congressional district of South Carolina, except the
county of Beaufort, violence and intimidation were resorted to by the
friends of the contestee to such an extent as to prevent large numbers
of contestant's adherents from casting their votes for him. And the
seven hundred closely printed pages of the record are mainly filled
with the testimony of witnesses produced to prove and disprove this
charge.

]n the first place, it is to be observed that while, if proved, this charge
ought to unseat the contestee, it can have no tendency to seat the con-
testant. Xo principle in the law of elections can be regarded as better

490 DIGEST OF ELECTION CASES.

settled than that no candidate can be held to have been elected to office
by the votes which, whatever the cause, were not in fact cast for him.

In the second place, without being understood as casting any asper-
sion or reflections upon the report of our colleagues, the majority of the
subcommittee charged with the consideration of this case, it is never-
theless our duty to remark that if issues of fact as to the history and
conduct of an election at each of the precincts in five entire counties
are to be determined by setting forth and considering only such parts
of the testimony of the witnesses of one of the parties as make most
strongly for him, excluding wholly the testimony adduced upon the
other side, and even ignoring such modifications and retractions as have
been made upon cross-examination by the very witnesses themselves
whose testimony is quoted, as upon the most superficial examination
will be found to have been done in the preparation of the majority re-
port, then the so-called adjudication of contested-election cases will
indeed have become a mockery.

For the purpose of illustration, again disclaiming any reflection upon
our colleagues who have made that report, we would cite the case of
Low Town Mills, in Aiken County. The majority report quotes from the
depositions of contestant's witnesses, Spells and Washington, so much of
their testimony as represents two hundred Democrats, in red shirts, as
riding up to the polls, firing into the Eepublican voters, and driving
about one hundred of them into a swamp ; but wholly ignores the fact
that on cross-examination, at page 133 of the Eecord, Washington re-
duces the two hundred Democrats in red shirts to two, and at page 134
admits there was not a swamp within four or five miles of the place. It
also wholly omits to notice that the testimony of both these witnesses
was answered and refuted in every particular by three intelligent and
reputable gentlemen, at pp. 258 to 262 of the Eecord ; that the character
of Washington for truth and veracity was successfully impeached at pp.
258, 260, and 261-'2, and no attempt to defend it made by contestant in
rebuttal ; and that not a single man who was beaten, shot at, run into a
swamp, who did not vote, was threatened, interfered with, intimidated,
or in any other manner maltreated, was produced, or the failure to pro-
duce in any manner accounted for.

Where it is alleged that a large number of persons have been deterred from vot-
ing by violence and intimidation, the testimony of those persons, or some of them,
should be produced. The opinions and impressions of others are not sufficient. (Mc-
Crary, p. 327, sec. 431.)

As another illustration, the neighboring precinct of Silverton may be
taken. So much of the testimony of D. Bing, contestant's only witness
as to this precinct, as, taken alone, would be understood as indicating
that the whites drove the blacks from the polls at their precinct, and
that the witness could not vote there, will be found inserted in the ma-
jority report at page 29 ; but the admissions of this same witness, at pp.
131-'2 of the Eecord, that he merely rode by Silverton without stopping,
and that he saw only one colored man there, and that one a Democrat,
is wholly omitted, as is also the fact that no man who was intimidated,
drawn away from, or prevented from voting at this precinct, or in any
other manner interfered with, is either produced or named. And yet, at
page 33 of the report, it will be found that the entire vote of this pre-
cinct for the contestee is thrown out.

So, at pp. 30 and 31 of the majority report, so much of the testimony
of contestant's witnesses is inserted as would tend to show, if taken alone,
that the Democrats drove the Eepublicaus from the polls at Creed's Store,
in the same county, and forced the Eepublican supervisor to leave ; but

SMALLS VS. TILLMAN. 491

it omits to say that this testimony is circumstantially refuted at pp.
267-270, with no attempt upon the part of the contestant to substantiate
it in rebuttal, as also that the very witnesses on behalf of contestant,
whose testimony is quoted in the report admitted on cross-examination,
at pp. 74 and 183 of the Eecord, that all the colored men were allowed
to vote freely as they desired at this poll except one, who was chal-
lenged, and who, as shown at pp. 267 and 269, was an idiot. And yet,
at p. 33 of the report, the majority for contestee at this precinct is like-
wise thrown out.

So as to Windsor precinct, in the same county, the majority report
quotes so much of the testimony for contestant as would tend to show
that the Republican ticket distributer was driven away from the polls;
but it wholly overlooks the facts that, at pages 307-'8 of the Eecord, it is
proven by the testimony of the trial-justice for that community, un-
attacked in rebuttal, that the ticket distributer got into an altercation
with a stranger who was not even a resident of the State, and left in
a passion, taking the Republican tickets with him, although urged to
leave them, after which the trial-justice offered to write tickets for all
who desired to vote. And yet, upon this uncontradicted state of facts,
coutestee's majority at this precinct also is thrown out, at p. 33 of the
report.

Again, as to Page and Hankerson's Store, in Aiken County, the ma-
jority report quotes the testimony of one Green, tending to prove that
he was not allowed to vote ; that there was shooting at the polls, and
that he was whipped for taking down the names of voters; but it
ignores entirely the fact that the alleged whipping is not claimed to
have taken place until after Green had left the precinct, and that the
Republican supervisor, contestant's only other witness as to this poll,
testifies, at page 190 of the Record, that every man who offered to vote
was allowed to do so freely ; as, also, that the uncontradicted testimony
of contestee's witnesses, at pp. 273-'6 and 278-'9 of the Record, shows
that the only shooting at or near the polls that day was between two
Democrats, who fired at each other in a purely personal altercation ;
that no one was deterred from voting by the occurrence, over one hun-
dred Republican votes being cast just after it; that no violence was
offered Green at the polls, but that his alleged whipping was reported
to have taken place after he had gone away, at some point on the road
to Aiken Court-House, and that the Republican supervisor signed the
Democratic supervisor's report, and declared it had been the fairest
election he ever saw.

It is obviously impossible, within the compass of a report like this,
to review the testimony as to each of the various precincts in this and
the four other counties against which this charge of violence and intimi-
dation is made. The foregoing will be found to be only a fair specimen
of the methods of consideration which have led to the conclusions em-
bodied in the majority report of the subcommittee. In the brief filed
in behalf of the contestee will be found a succinct but full summary of
the testimony on both sides as to each precinct in each of the counties,
with a reference to the pages of the Record at which all the depositions
on either side relating to each precinct are contained; and to this sum-
mary we would urgently refer the members of this committee who may
desire to look at both sides of the question, or to the whole of contest-
ant's own side, as to any particular precinct.

There are two precincts, however, viz, Edgefield and Aiken Court-
Houses, as to which charges of violence and intimidation are made so
strenuously, and the conclusions of the majority of the subcommittee

492 DIGEST OF ELECTION CASES.

are, in the opinion of the undersigned, so far from being sustained by
the facts, that some brief review of them will be here indulged in.

EDGEFIELD COURT-HOUSE.

Under the heading of this precinct, at p. 6 of the majority report,
Andrew S. Lee is made to say that the commissioners of election for
Edgefield County were all Democrats. As a matter of fact, Lee testifies
that he himself was a commissioner of election for that county, and a
Eepublican. What he does say, at p. 433 of the Record, is, that all the
precinct manager's of election, who are appointed by the commissioners,
were Democrats. But he adds, at p. 434, what is omitted from the
majority report, viz, that he spoke to the chairman of the Republican
county executive committee about suggesting the names of some Repub-
licans for appointment as managers, but received no advice from him
upon that point, and that he himself knew of only two or three Repub-
licans in the county competent to act in that capacity, and did not know
that they would serve. (See his testimony at pp. 433-'4 of the Record.)

The majority report further quotes the testimony of this witness TO
show that the county board of canvassers did not canvass the five polls
from which no returns were made, but omits that portion of it which
shows that he, the Republican member of that board, fully concurred
in the construction of the law which denied to the board any power to
do so. And as above pointed out, there is not a particle of evidence
tending to show that there was a majority for contestant at any one of
these five polls, nor, indeed, that a single vote was cast for him at four
of them.

The remaining portions of the majority report relating to Edgefield
Court-House, as also those relating to Aiken Court-House, appear to ha ve
been taken bodily from the contestant's brief; and we could not, per-
haps, more succinctly or fairly put the committee into possession of the
whole facts, as proved by contestant's own witnesses as well as by those
of contestee, than by incorporating into this report, from the correspond-
ing portions of the brief filed on behalf of contestee, the following
summary :

Edgefield Court-House.

At this precinct the contestant's testimony is to the effect that, on the
night before the election, armed bodies of mounted men rode through
the streets of the village, whose red shirts could be seen in the darkness
by the flashes of their pistols ; that an armed guard, during the night,
took possession of the court-house building, which was the polling place,
and kept it; that the Democrats took possession of the court-house
steps, and refused to allow any Republicans access to the ballot-box ;
that sentries were stationed in front of the steps under the command of
an officer in strange and peculiar uniform, who ordered the Republicans
back whenever they attempted to approach the steps ; that men were
stationed in neighboring buildings, with arms in their hands, command-
ing the polling place for the purpose of intimidating and keeping back
Republican voters ; and that by these means from 2,000 to 2,500 voters
were prevented from casting their votes for contestant. It is further
charged that the Republican supervisor was not allowed to keep a poll-
list, and that the polling places were reduced from two to one at this
precinct in order to deprive Republicans of an opportunity to vote; and
this, we believe, summarizes the charges made on behalf of contestant
as to this precinct.

SMALLS VS. TILLMAX. 493

The testimony on behalf of the contestee, if believed, refutes all these
oh.irges, and shows as follows : That the Republican leaders conspired
to mass, as far as they could, their entire forces at this and one or two
other precincts, for the purpose of taking possession of the ballot-box
and intimidating and physically overpowering the Democrats ; that in
pursuance of this scheme they took possession of all the roads leading
to the village the night before the election, beleaguered the town, and
fired upon a committee of citizens sent out to peaceably inquire the object
of their demonstration ; that on the morning of the election they inarched
into the village from every avenue of approach to it in compact bodies,
armed partly with fire-arms, but mostly with large, freshly-cut clubs;
that, having consolidated their forces, they marched, with yells and
uplifted clubs, up to the very steps of the court-house in which the citi-
zens, after their committee had been fired upon the night previous, had
taken the precaution to place about fifty men ; that these men holding
their position upon the steps, and a peace officer having ordered a de-
tachment of a company of the State militia to take position, with their
arms, in a neighboring building, where they could be seen, the massed
forces of the Republicans, after a time, fell back a short distance, and
were then invited and urged to vote by threes, alternately, with the
Democrats, but with few exceptions they refused to vote at all unless
they could do so en masse, and about 11 o'clock a. in. marched away in
bodies, as they had come.

With this preliminary statement of the facts alleged upon the one side
and the other, we proceed to examine the testimony with especial refer-
ence to the consistency and credibility of the icitnesses, since, where their
statements are so hopelessly in conflict, it is simply a question of veracity
between them.

And, first, as to the armed bodies of Democrats alleged to have been
patrolling the streets of the village, and illuminating their uniforms by
the flashes of their pistols, Paris Siinpkins, who, with one Lawrence
Cain, is the principal witness as to this precinct, testifies as to this (at
p. 223) as follows :

Q. Were you present in the town of Edgefield on the night before the last eleceion ?
A. I was.

Q. Did anything unusual occur during the night ? A. Something certainly very unu-
sual for this community ; there was quite a number of armed men in the town of Edge-
neld, who paraded up and down the streets, all mounted, firing oft' their pistols, aud
yelling in the most hideous manner. I was on the street myself, and desired to get
buck to my home, but was afraid to go back on the front street, as I came, for fear
that I might be shot ; not that I had anything to be shot for, but that, knowing I
was regarded as a leader of the Republicans in the county, it was because of this
position that I was apprehensive of danger.

Q. How long did this firing continue f A. It continued almost incesiantly f 01- five or ten
minutes.

*******

Q. About how large was this body ? A. I would judge there were between three and four
hundred men.

Q. Was it before or after dark ? A. Just after dark.

Q. Could you distinguish their faces or clothing ? I could not their faces ; but could
see by the flashing of the pistols that some had on red shirts.

Andrew J. Lee, Republican commissioner of elections, who was in the
village the night before the election, testifies (at p. 212) as follows :

Q. Did you see any mounted men ride through or around the town that night ? A.
I did see a number of mounted men, in a body, riding through the town.

Q. Did you hear any firing that night, much or little ? A. I heard several shots fired.

Xormau Youugblood, another witness for contestant (at p. 232) tes-
tifies :

494 DIGEST OF ELECTION CASES.

Q. Do you know anything of a body of armed and mounted men riding through the
town the night before the election ? A. I saw a crowd of mounted men ride through
the town, but could not see if they were armed or not. About four o'clock of t he same
evening I met another crowd going away from the town ; these men were mounted,
and I saw several pistols under their coats as they were going on, and sonic hanging
on the" saddles; they returned to town about a half hour before sunset.

Q. How were these men dressed? A. They had on red shirts, many of them, as
much as I could see in the night ; those in the day all had on red shirts that I .saw.

Q. How many were in the party leaving town ? A. Sixteen of them I met.

Q. How many in the party after dark ? A. About the same number.

Could Simpkins have honestly mistaken sixteen men and " several
shots " for three or four hundred men, firing incessantly for five or ten
minutes ?

The following is the testimony as to this matter of K. S. Anderson,
one of the managers of election (at p. 503) :

Cross-examination by P. SIMKINS, counsel for contestant :

Q. Were you in the village of Edgefield on the night previous to the election ? A.
I was.

Q. Did there not come into town in the early part of the night previous to the el*>c-
tion a large body of Democrats, mounted and armed, uniformed in red shirts, and
paraded through the village, yelling and firing off their pistols ? A. I did not see any
large body ; I saw a small squad come in on horseback. They rode around the park.
and some of them seemed to be lively, and fired one or two shots; suppose that wa>
done by some man who was drunk. I saw no arms.

Whereupon Simpkins became intimidated.

As to the officer in strange uniform in command of the alleged Demo-
cratic guard in front of the court-house steps, Simpkins (at p. 223)
testifies as follows :

There appeared to be an imaginary line drawn just in front of the court-hotisedown
on the ground; there were Democrats who walked up and down this line, and as the
Kepubhcans would come towards the court-house they were told just here not to o
any further. I noticed this matter with peculiar interest; there appeared to be an
officer in charge of this line; the officer, who I allude to, was dressed in a very pecu-
liar suit of clothes. I have no recollection of ever seeing such a suit before.

Norman Youngblood (at p. 233) thus describes this very peculiar
officer :

A man with a calico suit on was in front of the steps, and whenever a colored man
would try to vote he would tell him to stand back ; he could not vote yet. The white
people pushed through the crowd and got in to the poll.

The real character and subsequent history of this "officer" are given
in the following extract from the deposition of C. L. Woodward (at p.
510), and that of D. E. Durisoe (at p. 530) :

Q. Laurence Cain, Paris Simpkins, and Norman Youngblood, in their testimony,
state that there was a man dressed in a peculiar costume, who seemed to be a man in
authority, walking a line as a sentinel in front of the court-lmnse. Will you please
state how that man was dressed, and if he was not drunk, and acted without author-
ity? A. I have stated that there were several men in the space intervening between
the court-house steps and the front line of the colored people. I recollect that one of
these men was dressed in a fantastic clownish costume, who was no doubt dressed in
that manner under a spirit of fun. He was, so far as I know, \i ithout authority, and
acted independently. There was no organization of the white people who were upon
the court-house steps, but they were in apparent danger, and generally adopted the
suggestions of the men of influence among them, and those of the State constables. * *

Q. L.Cain, P. Simpkins, testifies to a line being drawn in front of the court-house,
and that a man dressed in fantastic costume, who seemed to be in authority, told the
colored people to stand back; on the contrary, was not that man acting without any
authority, and was he not under the influence of liquor ? A. It was impossible for
any line to be drawn and observed for any length of time, for the colored people most
of the time were present, were standing up near and in close proximity to the court-
house steps; so close indeed that there would have been no room for a line to be
drawn ; the party to whom allusion was made as being dressed in a fantastic suit..
walkitig to and fro through the crowd, was without authority in his club and with-

SMALLS VS. TILLMAN. 495

out authority from the party, and at the time was strongly under the influence of
whisky, and before 12 o'clock in the day lying drunk by the park fence.

The charge of Jesse Jones, the Republican supervisor, that he was not
allowed to keep a poll-list is unsupported by any testimony except his
own, and that testimony is as follows :

Q. Did you keep a poll-list? A. No, sir.

Q. Why not ? A. I did not think it was safe for me to do so.

Q. Why did you think it unsafe ? A. Because if they saw me keeping a poll-list, I
don't think they would have allowed me to stay there at all, as I was told by Demo-
crats that if I attempted to make a report I would not be allowed to act as supervisor
(pages 245-6).

****#*

Q. You say you were told if you kept a poll-list you would not be allowed to act as-
supervisor; who told you so ? A. I decline to answer that, but he is a Democrat.

Q. Did either one of the managers tell you so ? A. They did not.

Q. Did any Democrat tell you so who had authority at the box ? A. No, sir (page
249).

Here, the Democrats who obstructed or intimidated the supervisor
is reduced to one Democrat, and that one nameless and unidentified.
Could any member of Congress retain his seat, if, to do so, he was required
to disprove such testimony as this?

This same witness, however, does rebut any presumption which might
be entertained, if his story was believed, that the object had, in prevent-
ing him from keeping a poll-list, was a fraudulent one in the interest of
contestee; as witness the following question and answer at p. 250:

Q. You say you kept no poll-list, but the votes in the box exceeded the names on
the poll-list by 15 ; how do you know that ? A. / knew that the poll-list kept by the
Democratic clerk teas correct. I know it by loohpig at the poll-list after the poll waa
closed, and AVB were about to proceed to count.

With reference to the charge that the polling places were reduced
from two to one after the Democrats gained control of the State in 1876,
for the purpose of depriving the Republicans of an opportunity to vote,
it would no doubt be answer sufficient to say that the legislature of a
State will scarcely be adjudged guilty of such an abuse of its powers,
by either the national House of Representatives or its committee, at
least upon the testimony of such witnesses as those who make the
charge in this instance. The testimony of O. Sheppard, at p. 500,
and that of S. S. Tompkins, at p. 506, show, however, that since at
least as far back as 1841, there never has been but one box at this pre-
cinct, except for a short time while the Republican party had control of
the State, when two were established; that this, besides being unneces-
sary, was found to lead to, and facilitate repeating, and was, for that
reason, abolished. (See, also, pp. 526-7.) The testimony shows that
the Democrats increased the number of precincts in the county. (See
p. 530.)

We come, now, to the main and decisive question as to this precinct,
viz : Were the Republicans prevented from voting by violence and in-
timidation upon the part of the Democrats ; or, were the Democrats
acting purely in self-defense and for the preservation of peace and order,
and was the refusal of the Republicans to vote a preconcerted deter-
mination upon their part in case they failed in a plan to overawe and
intimidate their political opponents and capture the polls ?

On the part of the contestee it is claimed, and we think the testimony
and the circumstances demonstrate the fact, that the Republican leaders
had preconcerted a plan to mass their followers from all parts of the
county at this place, intimidate the Democrats of both races by a show
of force and violence, and capture and hold the polls ; and if they failed

4l>6 DIGEST OF ELECTION CASES.

in tliis, then to refrain, in a body, from voting-, and disperse early enough
in the day to reach the polls at other places.

That the Rapublicans were massed at this precinct is shown by con-
testant's own witnesses. The largest vote ever case there was about
1,200, Democrats and Republicans both included (p. 239).

On the 2d day of November, 1880, the number of colored Republic-
ans at Edgefleld Court-House is stated by their leaders, Cain, Simp-
kins, and others, to have been from 2,000 to 2,500. , And the record
shows that they came from all parts of the county, although there were
nineteen other precincts in it ; brought their provisions in haversacks,
and camped about the village on every road that led to it the night be-
fore. These facts are agreed on both sides.

Did they contemplate force and violence ? The following extracts
from the depositions of contestant's own witnesses will answer. Paris
Simpkins, at p. 226, testifies as follows :

Q. Did you see the Republicans come in Edgefield village ou the morning of the
election ? A. I did.

Q. What did they have in their hands f A. Some of them had sticks and some of
them did not have anything.

Q. Describe the sticks they had in their hands. A. The sticks that I saw were not
all alike ; some were the size of ordinary walking sticks, and some of-tlie)n were un-
usually large, though they walked with them as walking-sticks. *

Q. Did you s^e any sticks in the hands of the Republicans on the day of election
that presented the appearance of clubs rather than walking canes ? A. I can only .say,
in reply to that question, as I have said before, that some of the sticks were ordinary
walking-sticks, while others were unusually large for walking-sticks.

Q. Did you see a half dozen Republicans who came in clubs that didnot have clubs
in their hands ? A. A great many had nothing in their hands at all.

Q. About what proportion? A. ty near as I can approximate it I would say about
one-fourth.

Q. Had no clubs in their hands ? A. Yes, sir.

Three-fourths then, of this array of from 2,000 to 2,500 men were
armed with clubs.

Norman Youugblood, another of contestant's witnesses, at p. 234,
testifies :

Q. Did you see any Republicans armed that day ? A. Yes, sjr ; I seen some of them
there.

Q. What were they armed with ? A. The best quantity had sticks. I seen two
pistols with them, but I don't know how many more.

Wiley Weaver, another of contestant's witnesses (pp. 689-693), testi-
fies as follows :

Q. Several Democrats have testified that large bodies of colored men came to the
Edgefield precinct armed with heavy sticks or clubs, evidently for the purpose of
taking forcible possession of the polls ; will you state what the object of the colored
men was in coming to the polls in bodies, and also what their object was in having
these sticks alluded to ; and was it the object to take forcible possession of the polls?

(Objected to as a matter of opinion.)

They were not " walking-sticks," therefore, evidently. * .
Under cross-examination this threat of the Democrats to turn back
the Republicans is thus explained :

Q. You say the Democrats had promised to be at the cross-roads ; had they prom-
ised you to be there ? A. It was a general rumor through the country that they was
to meet us at the cross-roads and keep us back from the polls.

Q. Have you been all over the county lately ? A. I have not been all over the
. county, but my reasons is for saying they promised to meet us at the cross-roads, I

SMALLS VS. TILLMAN, 497

I carefully and beard the speech of men over here at the academy. They said
they beat ns in this election, anil meet us at every cross-road.

Again, at p. 692 :

Q. Yon say yon brought with you 150 men, and it was not their intention to take
possession of the polls. Did you know the intention of each and every one of that
150 men ? A. I know it in this way, that they had promited to be governed by me, and I
knew it by my own viind.

Q. Yon, then, don't know the intention of each and every one, of your own personal
knowledge? A. I don't know the minds of them, but know the promises.

With these reluctant, half-admitted indications of contemplation of
and preparation for violence and force, coming from contestant's own
witnesses, it .would, perhaps, naturally be expected that the evidence
of it will be rather abundant when the witnesses on the other side are
heard. And the expectation is fully realized.

The following 1 is from the deposition of C. L. Woodward, a lawyer
and citizen of Edgefield. (See pp. 508-13 :)

Q. What time did you arrive at the polling precinct on the morning of the election,
and state what occurred during the day and after that time? A. I was awakened
about one o'clock the night preceding the election by M. C. Butler, who had just re-
turned in a buggy from Newbury Court House,who informed me as he passed Huiet's
Cross-Roads that there was a crowd of negroes assembled there, which he estimated
to be five hundred to one thousand; that I had better come down to the village and
apprise the men here of the fact. I came on down and found a few men in one of
the law offices here, and a few in the court-house. I went around to different stores
and houses in the village and aroused the men who were sleeping in them. For sev-
eral days prior to the election there had been rumors about the arming of the negroes;
that pistols had been shipped to this county ; and the information of the assembling
of the crowd at Huiet's Cross-Roads, at that time of uigbt, caused apprehension
that an attack was contemplated upon the village. After waking up these men, we
all assembled in the court-house ; I suppose from thirty to fifty. We did nothing for
one or two hours; not liking to be without information of the movements of the crowd
of negroes I have referred to, I had the meeting called to order, and suggested that
four men be appointed to go out and ascertain, if possible, the intention of the crowd
assembled at mliet'a Cross-Roads ;. Mr. Corley, Mr. Mitchell, Mr. Denny, and myself
were appointed, and we rode out in the direction of Huiet's Cross Roads. When we
got within two hundred yards of the cross-roads we met seven or eight negroes; we
stopped and questioned them; they pretended to have no knowledge of the meeting,
but their answers were not satisfactory. Our attention was then attracted by a camp-
lire in the woods about two hundred yards to the left ; at the same time we heard noisy
demonstrations ; I proposed to the party to ride up to the meeting peaceably, not
apprehending that we would be attacked without warning. As we approached the
meeting we heard noisy yells and cries, as if they were being inflamed by the speaker
who was haranguing them. We approached the place of meeting by a road leading
oft' from main road in that direction; we had procdeeed about twenty-five yards on

this road when we heard the command, "Halt, God d n you, halt!" We halted ;

and a few paces in front of us we saw a line of men elbow to elbow across the road,
or about that close. The night was dark, but the outlines of the men were percepti-
ble ; in an instant a number of pistols fired, as we supposed, at us. We turned and
dashed back to the main road ; the firing of the pistols still continued. This line of
men was apparently about one hundred yards from the main body in the woods; the
meeting, in a moment, became a perfect bedlam of noises : I heard curses and threat-
ening speeches very loud. We sent one of our number in advance of us back to the
village, and came on back ourselves.

Willis Griffin, Daniel Brunson, and myself then road out to the house of Lawrence
Cain, who was the leader of the negroes of the county, and also the chairman of the
Republican party, to see if we could ascertain from him the meaning or object of the
demonstration out at Huiet's Cross-Roads. Upon arriving at his house we called to
him. and, after making ourselves known, he came out; he pretended ignorance of the
nueting ; we told him that this night attack by armed men barricading public roads
upon men riding quietly along the road had caused, and would cause, great excite-
ment among the white people ; that from what we had experienced that night and the
rumors we had heard during the few days before, we feared that the negroes intended
to precipitate a disturbance on the day of election ; we told him that knowing his in-
fluence amongst the ran; we had come to him in the interest of peace; that he had
better send word to this meeting at cross-roads, and that he had better advise the

H. Mis. 35 32

498 DIGEST OF ELECTION CASES.

negroes generally not to come into the village the next morning in a turbulent and
threatening manner, but that if they cainein in a quiet, peaceable manner, we did not
apprehend any trouble. He pretended to us that he was ignorant not only of the
meeting near Huiet's Cross-Roads, but that any of the colored people except those of
the immediate vicinity and those in the neighborhood of Antioch were coming to the
village to vote. We then went on to the village (I think two of the parties were
State constables, appointed to keep peace on the day of the election); by this time it
was about daybreak ; about or before sunrise a crowd of colored people, about live
hundred strong, I would judge, came marching into the village in a column about
eight abreast, yelling and flourishing immense clubs, -with which it seemed to mo
every one of them was armed; a number of white men were on the court-house steps,
and those who were in the vicinity quickly assembled there; the colored men marched
within ten or fifteen paces of the court-house steps ; in a few minutes another crowd,
not quite so large, came up from the same direction ; they also were all armed with
immense clubs, which they flourished as they advanced, at the same time yelling
threateningly ; in the course of one-half an hour the crowd of colored people in front
of the polling place had increased until it was variously estimated between fifteen
hundred and two thousand ; these men all came in the manner of the first crowd, and
came in by every road leading to the village ; all were armed with clubs ; there were
about one hundred white men assembled on the steps, and during this time about
twenty or twenty-five more had come up.

The colored people by this time were all massed together on the square to the left
of the park facing from the court-house, aud the front line was within a very short
distance of the steps. A negro with a fur cap on, who I was told afterwards was Mose
Morton, placed himself at the head of this line, mounted, and, with him at the head,
the whole mass marched to within five paces of the court-house steps. There were a
iew white men in the intervening space ; if I recollect correctly, with one or two ex-
ceptions they were State constables. About this time a crowd divided from the rear
and marched around in a disorderly column of two or three abreast to the right of the

Eark (as we faced them), aud advanced up within a few feet of the jail yard, and the
ue was faced about towards the steps, and everything indicated that an attack was
to be made upon the whites upon the steps, and it would without doubt have oc-
curred, in my opinion, and a bloody riot would have been precipitated, had it not been
for the careful conduct but determined attitude of the white men upon the steps, the
prompt and careful management of, I think, a half a dozen State constables, and
the conservative influence of a number of men, composed principally of the militia
company of the village, who had position in the Masonic Hall overlooking the public
square. The crowed of colored men finally became convinced that their efforts to in-
timidate the white men had failed, and in a short while a large number of them with-
drew in a body and marched out of the village by the Columbia road, and by this time
the hostile attitude of the parties had become relaxed and the voting proceeded. The
colored men were invited generally and individually to come forward and vote.
Among others, I went out through them and told them that they could not come here
in the attitude which thej T had without causing apprehension upon the part of the
white people (I addressed myself to individuals); bat matters now seemed to be quiet,
and that they would all have time to vote. Most of them sullenly refused, as if act-
ing under orders from a common source, that if they could not advance to the polls in
a solid mass and have undisturbed possession of the polling place thev should not
vote at all. * * *

Q. Describe the clubs you speak of as being in the hands of the colored people that
day. A. Most of them were of immense size, and were very formidable weapons ;
they were apparently freshly cut from the woods for the purpose.

Q. Were not some of these clubs too short for walking-sticks and swung to their
wrists by strings f A. They were, a number of them.

For further testimony as to the violent and threatening entry of the
Republicans into the village of Edgefield, and their hostile demonstra-
tions at the polling place, seethe depositions ofO. Sheppard (pp. 497-
501), E. S. Anderson (pp, 502-5), S. S. Tompkius (pp. 505-7), L. Charl-
ton (pp. 513-7), Lewis Jones, sr,, (pp. 517-20), and D. K. Durisoe (pp.
526-534).

No denial was attempted, on behalf of contestant, as to the firing upon
the committee of citizens near Huiet's Cross-Roads, nor as to the fact
that the Republicans did march into the village, and up to the polls,
armed with clubs, in dense, organized bodies, and subtantially as
stated by contestee's witnesses. Under these circumstances it must be
conceded that it was not only legitimate, but right, that the ballot-box
should be protected from the attack of an armed and riotous mob, and

SMALLS VS. TILLMAX. 499

that proper measures should be taken to preserve the peace and pre-
vent violence. Beyond the fact that the citizens held their position
upon the court-house steps, the only complaint as to the measures
adopted seems to be that a squad of the Edgefield Eifles, a part of the
State militia, assembled at their armory and were seen at the windows
with their arms.

As to this, Lewis Jones, sr., a peace officer of the State, thus deposes
at pp. 519-30 :

As that large crowd of colored men were approaching the public square, I myself
ordered a remnant of the rifle company to rendezvous in Masonic Hall, and to take a
position in the windows fronting the public square; they had rifles. There were
other men armed with guns, but few in number, who took position in the gallery oc-
oup ; ed by Mr. Miners; this was done for the purpose of suppressing a riot, for it
looked very much like a riot ; it was a precautionary measure, I regarded it, and I
think it had that effect.

Not a gun was fired, and not a man was hurt ; but R. S. Anderson
testifies, at page 505, that he has heard at least twenty Republicans say
since that if it had not been for those guns the Republicans would have
taken the ballot-box that day.

As soon as the hostile demonstration was at an end the record shows
that the Democrats invited and urged the Republicans to remain and
vote, and voluntarily made an arrangement for them to alternate with
the Democrats in voting. (See pp. 504, 506-7, 514. 5L7-8, 519, 529, &c.)

Why, then, did the Republicans leave without voting?

It is charged by the witnesses for the coutestee that it was a part of
the preconcerted scheme of the Republican leaders, if they failed in
their purpose of taking forcible possession of the polls, not to have
their followers vote at all, at this precinct ; and it remains to see how
far this charge is supported by the testimony.

A. J. Lee, a witness for contestant, at p. 211, deposes as follows:

Q. Why did you not vote at the last election? A. Because the generality of the Ee-
publicans did not rote, and I did not want to vote after they left.

Q. Was not your Republicanism strong enough to cause you to vote ? A. Oh, yes,
sir; but I did not think it would do any good, lut I iroa invited to rote that evening.

Q. Why did the Eepublicans not vote? A. The place was crowded that morning
with Democrats.

Q. Could they have got to the polls? A. They could not have got there until the
Democrat* got away.

Paris Simpkins, at p. 224, says :

I saw quite a number of Democrats rendezvousing in Masonic Hall; they carried
their guns or rifles with them ; they did not go up in a body, but went two or three
together ; several times during the morning there seemed to be some excitement ; then
I could see some of these men who were in the hall rush to the windows in menacing
attitude. I then left the vicinity of the box, and urged other Republicans to leave also,
as I was sure they could not have a fair expression at the ballot-box of their choice,
from what I had seen ; they did leave without voting.

Masonic Hall was the armory of the militia company above referred
to. Why a portion of that company were rendezvousing there on that
day, as also what the "excitement" referred to was, has already been
shown.

The same witness testifies further :

Q. Did any leading Republican besides yourself advise the Republicans to go home
and leave the poll? A. Yes, sir; Lawrence Cain did for one. David Harris, who was
on the ticket for the legislature, did so also.

Q. What position in the Republican party did Lawrence Cain hold ? A. He was.
chairman of the Republican party of the county.

Norman Youngblood, at p. 235, testifies :

Q Did you vote in the evening ? A. No, sir ; the reason I did not vote, the largest

500 DIGEST OF ELECTION CASES.

number, or most all, to a small number, left. Then the white people would halloo and
.ask them why don't they come on and vote. When they got to a small number they
would take a few colored and carry them up aud vote them. Then the door would he
in the same condition as it was before. [ did not rote because the larger number of col-
ored people had gone aicay before roting.

S. S. Tompkins, a witness for contestee, testifies, at pp. 506-7 :

Q. Could not those voters who left have voted if they had desired to do so? A. I
Relieve they could have done so, for the following reasons: Just as I finished voting
Mr. Durisoe come in to the managers and said, "Hurry up, for there are at L
thousand negroes here to vote, and if you don't hurry you will not get through before
sundown." Mr Durisoe is the Democratic county chairman. One colored man voted
just before I did, and there was others on the portico in the crowd. Mr. Durisoe went
down in the crowd of colored people and begged them to go near the polls, that in a
few minutes those at the polls would be through voting. I also saw Mr. Lewis Jones,
sr., urging parties to go up and vote. Mr. Lewis Jones was State constable that
<lay. and a prominent man in the community. After seeing this effort on the part of
JVIr. Durisoe and Jones I went to my office, expecting nothing else but that every one
would vote here who wished to on that day, and was surprised at seeing a large crowd
leaving, aud among them Paul Holloway, an intelligent and influential negro preacher,
whom I knew well. I accosted him and asked him, "Where in the world are you
going, Paul?" He replied "I am going home." I replied to this, "You can vote
now: there were not twenty Democrats on the portico to vote when I left." He re-
plied to this laughingly, " Oh, I don't care about voting nohow."

L. Cbarlton (at p. 514) testifies:

Q. Was any discrimination shown by the managers in reference to the voters here
the day of last election ? A. None. I voted with two or three colored men ; they were
sowru the same time I was. When I left the box one of the managers told me t<> say
to the colored Republicans that they could all vote ; for them to come up to the box-
four or six a the time. I told the colored voters on the public square they could vote
by going to the polls four or six at a time. They expressed themselves as indifferent
about voting. If thev could not vote in their own wav they did not care to vote at
all

Wiley Weaver, a witness for contestant, who testified be was in coin-
maud of 150 men, deposes (at p. 692) as follows:

Q. Do you know of your own knowledge, that none of the 150 men that were with
^ou voted ? A. I do.

Q. Did you see each and every one at all times during the day of election ? A. I
kept them together, and it teas a rule that if 15 or 20 of us could not go up to rote at once
that they were all to stay in ranks. They could not get that chance, and no other
chance, and we all kept together.

Lewis Jones, sr. (at p. 518) testifies :

Q. Did not the fact of the colored men leaving the polls tend to confirm the rumor
that they intended to take forcible possession of the polls, and if they could not do
so, then pretend that they were intimidated ? A. I can't say positively as to that ; my
impression that they intended to take possession of the box, and when they found
they could not do that then they dispersed and went to other boxes to vote.

Contestant's witness, Norman Youugblood (at p. 235), says :

Q. You don't know that those men did not go and vote somewhere else ? A. No,
sir; I don't know what they did after they left.

And it is a significant fact tbat out of tbis army of 2,000 or 2,500 men
not one of the rank and file is produced, or shown not to have voted else-
tchet e.

From tbis review of tbe testimony relating 1 to Edgefield Court-bouse,
wbicb contestant has made bis principal point of attack, there can, we
think, be no dissent from the following conclusions of fact:

1. That the Republican leaders massed their followers at this precinct
from all over the county, armed with clubs aud bludgeons, and intent
upon a riotous aud violent attempt to take possession of the polls.

2. That the village was, on the night previous to the election, be-
leaguered by these hostile bands, camped upon all the approaches to it,

SMALLS VS. TILLMAX. 501

and firing- upon peaceful citizens, in the public highway, sent out for the
purpose of inquiring their object and intentions.

3. That these bands, aggregating from 2,000 to 2.500 men, marched
up to the polling place from all directions on the morning of the elec-
tion, swinging their clubs, with yells and demonstrations of violence,
and attempted to take possession of the polls.

4. That they were prevented from carrying out their unlawful pur-
pose in a most temperate and peaceful manner, with the least possible
show of force, and, immediately upon desisting, were invited to vote,
and offered every facility fordoing so which their unusual numbers ren-
dered possible.

~). That, under the inspiration of their leaders, and without reasonable
cause, they voluntarily left the precinct in organized bands, as they
came, and went elsewhere.

As to the relative character for truth and veracity of the witnesses
for contestant and contestee, while it is apparent from the record that
the latter are professional and representative men of intelligence and of
the highest social standing in their community, there will be found, at
pages 494-97 and 489-91 of the Record, affidavits by the chairman of the
Republican executive committee of the county and by the individual
who acted as the contestant's attorney in taking testimony for him in
this county, the genuineness of which is admitted by both of them, in
which they, his principal witnesses, swear to repeated instances in which,
as members of the legislature, they accepted bribes for their votes appro-
priating the public funds for the payment of pretended claims against
the State.

AIKEN COURT-HOUSE.

The charges against this poll may be summarized as follows :

That the Republican supervisor was hindered and obstructed in the
discharge of his duties ; that t.;e Democrats crowded the polls, resorted
to unnecessary and dilatory challenges for the purpose of delaying and
defeating Republicans in their attempts to vote, and made discrimina-
tion in favor of Democratic voters in the matter of access to the ballot-
box ; that violence of language and of act was employed, and a display
of fire arms made, to intimidate Republicans and prevent their voting,
and that a cannon was placed in the vicinity of the precinct and used
to intimidate and overawe Republicans.

Upon the part of the contestee each of these allegations is denied,
and it is claimed that the crowding of the polls was the unavoidable re-
sult of the massing of Republicans not only from all parts of Aiken
County, but from the neighboring county of Edgefield ; that the only dis-
play of fire-arms was atone period in the day when a riotous, organized
body of negroes attempted to storm and capture the ballot-box, and in
the attempt violently assaulted and struck the sheriff of the county,
who was endeavoring peaceably to restrain them, when the State con-
stables, wearing their badges of office, appeared on the scene with their
arms until quiet was restored ; whereupon, without a shot being fired*
the guns were removed, and seen no more; and that the only discrimi-
nation shown was to sick, aged, and decrepidmeu of both parties, with-
out distinction, who were allowed access to the ballot-box from the exit
end of the approach to it.

The only testimony as to the alleged hinderance or obstruction of the
supervisor is that of himself, at pp. C7, 68, which is the following :

Q. How did. your poll-list agi.-f with that of the managers ? A. I did not keep a
poll-list.

502 DIGEST OF ELECTION CASES.

Q. Why ? A. The reason I did not I asked for conveniences to keep one, and the
managers answered that they had made arrangements f or the Democratic supervisor,
and the Republicans had a right to make arrangements for me.

*******

Q. Were you hindered or intimidated in any way from doing your duty as a super-
visor on that day ? A. Yes.

Q. State what violence or intimidation was used towards you. A. There was no
direct violence, but there was remarks made which caused me to fear to press lor au
opportunity to carry out my duty as a supervisor. I don't remember the exact words
of the remarks, and they were not made directly to me, but they were made in such a
way that I understood them to be meant for me. Such remarks as " We are going to
look out for Democrat*, and the Republicans must for you."

This is the entire testimony upon this point, and it, perhaps, is
scarcely sufficient to require a reply. The following, however, is the
testimony of James E. Grassland (pp. 278-8), the chairman of the board
of managers:

Q. He, Rouse, has also sworn that he was prevented from exercising his dm,'
supervisor in that room; is this so? A. Rouse came into the room where the poll
was to be held, some time before they were opened, announced himself as Repub-
lican supervisor; had writing materials in his hand; we waited together with our
watches compared with each other until 6 o'clock arrived, when we opened the poll ;
our time agreed; also so did we that it was time to open the poll. He asked for a table;
I told him we had but one, which was a long one, and that there was room enough
for all.

Q. Was he given room at that table, and did he select a place? A. He was offered
Toom there, and assigned to a place, but insisted on having a separate table. I told
liim that was the best I could do, and told him that there was a large bench that he
<;ould use. I told him, on his refusal to come to table or use the bench, that was the
l>est I could do for him. In course of fifteen minutes, still standing near table, every
courtesy having been extended to him that we knew of, he said, "I will withdraw.''
I told him, that I had nothing to do with that, but I did not see the slightest necessity
for it. He asked me to open the door for him. I did so, and he weut out. In about
twenty minutes he knocked at door again. On tinding him at door let him in, and
Bardeen, United States marshal, came in with him. He was received with same
courtesy as at first, and took position near clerk of board, and stayed there all day;
he did not leave the room again that I know of; was not interfered with in any way.

In the next place, as to the charge that the Democrats crowded the
polls, discriminated in favor of their own voters, and delayed and ob-
structed Republican voters by unnecessary challenging:

That the polls were crowded it is admitted on both sides. The re-
sponsibility for it is charged by the Republicans on the Democrats, on
the ground that the latter obstructed and hindered voting; while the
Democrats charge it upon the Republicans, upon the ground that they
not only massed their followers there from their own precincts in other
and remote parts of the county, but brought a large number from an
adjoining county. It only remains to determine which charge is best
supported by the proofs.

The following is the testimony upon this point produced on behalf of
contestant.

D. R. Rouse (at p. 67) says:

Some of the voters were hindered in voting by being pushed aside by other
Democrats, who told them to stand aside, and said that. " When we get ready for yon
to come in you can come in." They were ordered by one of the managers to atop pushing
these voters, who were Republicans, and let them vote. I also said that when one voter got
through he had a right to get out of the way and let others vote. But those who
were shoving and pushing the voters about refused to stop it and continued to do so,
saying that the coons must stand aside until they (the Democrats) said that they
could come in.

To properly understand this and other statements as to the voting
liere, it is to be borne in mind that the ballot-box w;is approached by a
barricade or passage way alvmt twenty feet long and three or four feet

SMALLS VS. TILLMAX. 503

wide (p. 298), leading past a window at which the ballot-box was placed,
the voters being admitted in at one end and passing out at the other.
The supervisor was stationed in the building where the ballot-box was,
near the window, and the crowding and pushing to which he refers
must, therefore, necessarily have been between the voters who had
already been admitted into this passage-way and had reached the win-
dow where he and the managers were. His testimony demonstrates,
therefore, that the voters were admitted into this passage-way indis-
criminately, and, in the crowd, were "shoving and pushing" each other
with a view to vote and get out.

The only other testimony upon this question of crowding is the follow-
ing from the deposition of James Major, at p. 168:

Q. Had there many white men voted at 9 o'clock in the uierning? A. Yes, sir;
ri.ulit smart had voted.

n. Had there many colored men voted at that time? A. Not a great deal; there
were more white voters than colored, because they commenced to blockade them from
the jump, and they kept them barred out until the poll closed. At 6 o'clock in the
veiling they were standing there.

It will hardly be seriously contended that a Congressman should be
unseated because at a crowded poll and the cause of it being crowded
will presently be shown his adherents had the superior diligence to
first reach the polls and gain the vicinity of the ballot-box ; especially
when, mirabile dictu, no u intimidation" or fraud is alleged to have been
resorted to for the purpose. But it may be worth while to show the
real reason why few Republicans had voted at 9 o'clock for the purpose
of illustrating the disposition of the contestant's witnesses to convey
false impressions.

The following is from the deposition of George M. Short, another wit-
ness for contestant, at p. 174 :

Q. Were you at the polls during any part of the day ? A. I was there all day.

Q. State all that occurred. A. About ti o'clock there was a crowd ; the street was
full as it could stand with them, of colored Republicans. Between 7 and 8 Mr. Gloster
Harlin, the chairman, he commenced issuing the tickets and taking names.

Q. Who is Gloster Harlin ? A. He is the Republican chairman of Aikeu County.
He commenced taking the names and issuing the tickets, and as they got the tickets
they would fall in rotation in line to get up to the ballot-box to cast their tickets.

In other words, the Democrats were voting two hours before the Re-
publicans commenced to distribute their tickets. And contestant's wit-
nesses, and the majority report, attribute the consequent delay of the
Republican voters to their being " blockaded" at the polls by the Demo-
crats.

The following is the testimony on behalf of contestant in support of
the charge that unnecessary and dilatory challenging of votes was re-
sorted to by the Democrats to deprive Republicans of the opportunity
to cast their ballots.

E. M. Bray ton, whose vote was challenged, and disallowed on the
ground of non-residence, at p. 163, testifies :

Q. When Republican voters attempted to vote were any unnecessary questions
asked them, for tlie evident purpose of delay? A. As I have said before, I was not
near enough, and could not get near enough, to that poll to overhear the questions
that were asked, and can only state what they were from the general report.

Q. Give the general report. A. It was icdl understood among the Republicans there
n-ho imv n-ditiiifi to n>te that they were being obstructed and prevented from the exer-
cis.- of their rights by law, by till manner of questions being asked them that would
consume time.

Q. What questions were asked of you? A. I was asked where I had my washing
<lone. where my family's washing was done, and where my family was living. There
were not very many questions asked of me, I being so well known here; but there

504 DIGEST OF ELECTION CASES.

was considerable time taken up by consultation among the board of managers, and
the arguments addressed to them by the challengers who were present there,

It will be observed that even when the witness was invited to give
hearsay evidence of improper or dilatory challenging, he is able to re-
spond only by stating that the Republicans, not at or near the box, " well
understood" that they were being obstructed and prevented in the man-
ner charged. Rouse, the Republican supervisor, and Bai deen, a Repub-
lican deputy marshal, both of whom were in the room with the managers,
and both of whom testified on behalf of contestant, make no such charge.

The following is the testimony on behalf of con testee upon this point:

D. S. Henderson, State senator (pp. 280-287), says :

Q. State right here the manner of swearing voters. A. Several men would come up
and then three or fonf of them would be sworn and voted, and I saw no distinction in this
between Democrats and Republicans; two and three and four would be sworn ; no
man voted without being sworn, to my knowledge. I was there most of the time,
and would have seen it had it been done. Being satisfied that a great many were on
ground from Edgefield, we took precaution to get copies of census book of this county
from clerk's office ; these were prepared by revisers ; that we had previously heard of
their coming; and the mode of challenging was when a man came up we did not know
this book was referred to as evidence of where he lived he was asked from what
township he was from, and we would see if his name was on the census book; if his
name was not there, inquiry was then made whether he could prove that he lived in the
county, or whether he could bring anybody to prove that he resided in the county; in
other words, this book was not taken as conclusive evidence. House said he thought
that a fair way, and said lie had no objection ; this was the United States census, taken
last year. If it was shown either by white or colored witnesses that the party chal-
lenged lived in the county, though his name did not appear on the census book, he
was allowed to vote. I remember several instances in which Rouse identified parries
as living in the county, and though his name did not appear on the census book, he
voted. Many men who were challenged, when asked where they lived, answered in
Edgefield County, and of course were rejected.

Janies Aldrich, a lawyer and a member of the State legislature (at pp*
299 and 302), says :

I saw no discrimination atempted by any officer. As each batch came up they
were sworn and voted, if legal voters. Sometimes a person would offer to vote and
have his vote challenged ; when it was challenged the party so challenging was re-
quired to give reason therefor ; the managers would hear challenge. The United
States an thorites having recently taken the census, copiesof the same were procured ;
reference was made to those census returns as a source of evidence only. As I gathered
from hearing discussion and what managers said that those returns were not conclu-
sive with them, when some statement by voters of their residence did not tally with
return, and some member of managers or either of supervisors stated of their own in-
formation they knew such person entitled to vote, he was allowed to do so ; there was
no exception to this rule so far as it came under my observation. I saw others offering
to vote, whose votes, being challenged, made statements as to residence which were
not supported by the census returns, yet such persons were told by managers to get
some one to substantiate their statements and bring such persons before the board to
give (heir knowledge as to the facts. Several challenged voters left the polls and after
a while returned with some person who could substantiate their statements, and they
were then allowed to vote. I have been a manager of election of this county and pre-
cinct at all since 1874, and at each and every of these elections I heard parties offer-
ing to vote challenged. At last election, different from none of the others in thia

respect.

*******

Cross-examined :

Q. What was the nature of the questions generally propounded ? A. They gen-
erally challenged for, 1st, non-residence; 2d, a second attempt to vote; 3d, under age,
and perhaps one or two for persons wbo lived at poor-house.

Q. Did you see this census book ? A. Yes, sir.

Q. In whose possession was it? A. I cannot say in whose possession it was; I saw
it at polls on table, I think, or window-sill ; I was called by some one to recognize-
some party applying to vote, a colored man ; I knew him, and he voted ; just then
some other was challenged, and I was asked to look in township return to see if hi
name appeared ; I did not find his name; the voter said he could be identified, and

SMALLS VS. TILLMAX. 505

he left the poll for that purpose ; I cannot say that he came back ; I left in a few mo-
ments myself; I think he voted, though. I heard him say so about fifteen minutes
afterward.

Q. Is there a registration law in this State J A. Xo. sir.

Q. Were not colored people required to prove residence by a white man when he
was challenged ? A. Xo, sir ; Rouse was supervisor; on his say some were accepted ;
other colored men would speak up of residence, also.

James Major, witness for contestant (at p. 368), says:

Q. Were there many questions asked of the voters when they went to vote ? A
Yes. sir; the colored voters. I did not hear the questions exactly asked, but they
kept them there some time.

Q. Were the white voters detained at the box f A. 3To sir.

Q. Could you hear the questions asked by the managers ? A. I could not hear.

Had the object been to hinder the voting, can any reason be given,
why time was notconsniiied upon the white as well as the colored voters?

But that Democrats as well as Republicans were challenged is shown
by the testimony of M. T. Holly, the sheriff of the county, who (at
pp. 313-14), says :

Q. Was it the purpose of the managers to facilitate or retard the voters ? A. I saw
nothing that led me to believe but that every man had a fair show to vote.

Q. In about what proportion were challenges ? A. I cannot say ; perhaps more
by Democrats, as there were a large number of strangers here who were unknown;
some from Edgefield.

Q. Were not colored voters so challenged required to locate themselves by some
white man f A. No, not that I know.

Q. What was the nature of the questions used to those challenged? A. The usual
question to challenges ; question of age may have been asked, but the colored people-
do not know their ages generally.

And see pp. 285 and 302.

The foregoing is believed to be the entire testimony upon this sub-
ject. Its utter insufficiency to sustain the grave charge of malfeasance
made against the election officers is apparent without comment. Two
observations, however, remain to be made in this connection, viz :

1st. Xot a single witness claiming to have been unnecessarily delayed
at the box. or to have been needlessly challenged, or asked unnecessary
or dilatory questions, has been produced, unless E. M. Brayton can be
regarded as making such a claim. And, as to him, the testimony is as
follows :

D. S. Henderson (at pp. 282 and 284-6) says :

Q. How long have you resided here ? A. Since 1872.

Q. How long have you known Mr. E. M. Brayton? A. He was here when I came ;
once resided here and practiced law.

Q. W en did Mr. Brayton leave here ? A. Shortly after 1870.

Q. Are you certain that he has not lived in Aikeu for past year or so ? A. I am ; he
has not lived heiv for three years ; he lives in Columbia : he has had no residence here
since Id76. Mr. Bruyton's vote was challeuged here in the last election because he had
not resided here for more than a year. He was questioned as to where he lives, and
his business was, and on his answering, he was rejected.

Cross-examined :

Q. Upon what ground did you challenge my vote ?

(Question put by Mr. E. M. Braytou, counsel for Smalls.)

A. I challenged your vote because I honestly believed that you were not entitled to
vote at this box according to law, not having been a resident of this county for sixty
days next preceding said election ; and because at the time you offered yourself as a
voter you and your family were residents of the city of Columbia, in this State; and
this you admitted when questioned at the ballot-box.

Q.' What official position do I hold? A. Internal-revenue collector.

Q. Do you know where the duties require me to reside, or do you know where the
general office is located ? A. Your office is in Columbia.

Q. YVhen I ottered to vote, did I claim that this wa-my legal voting place ? A. You
so claimed, but admitted that you and family lived in Columbia.

Q. Do you claim or hold that a man cannot live in one place and have a legal vote

506 DIGEST OF ELECTION CASES.

In another ? A. I say that in order to be entitled to a vote in a locality, his place of
habitual living must have been there sixty days next previous to the election.

Mr. Aldrich, who was a manager of election at this precinct at every
election, prior to the last one, since 1874, says (at p. 302) :

Q. How long since Mr. Brayfcon left here ? A. About three or four years.
Q. Did you ever know him 'to vote here within that time ? A, No, sir.

Braytoii himself admits that he cauie to Aikeu on the morning of the
election at about nine o'clock, from Columbia, which is about seventy-
five miles distant, on the cars, and returned at about half-past two p.
m., as, also, that few questions were asked him.

2d. The number of ballots actually cast at this precinct must be re-
garded as effectually disproving the charge that voting was fraudu-
lently or intentionally retarded by the election officers. The law of the
State requires that the managers shall administer to each person offering
to vote an oath that he is qualified to vote at this election according to
the constitution of this State, and that he has not voted during this
election (p. 476). The only testimony as to the time required for this is
the following from the deposition of O. C. Jordan, chairman of the
commissioners of election at (p. 316) :

Q. About how long would it take a voter to vote? A. Without any interference, I
should judge, about half a minute to forty-five seconds.

But though the veracious James Major, deputy marshal, swears, at
p. 167, that the voters were admitted at the rate of six to every fifteen
or twenty minutes, the returns, at p. 474, show that over eleven hundred
ballots were cast at this precinct, or nearly one hundred per hour, not-
withstanding the time unavoidably lost in challenges made necessary
by the attempt on the part of the Republicans, w which Deputy Marshal
Major admits participation, to vote residents of Edgefield County.

The charge of discrimination in favor of Democratic voters in the
matter of access to the polls perhaps requires some further description
of the approach to the ballot-box. It is thus given, at p. 299 of the
record, by Mr. Aldrich, who, as stated by contestant at p. 106 of his
brief, is a prominent lawyer and member of the house :

The poll was located in a brick building occupied by Jordan ; box at front window,
about breast high to an ordinary man ; the barricade in front was about twenty feet
long, three or four feet from house. I was manager of election in 1876 under Repub-
lican administration and a barricade was made by them then longer than this ; in
fact I do not remember having witnessed an election since 1874 without this barricade.
I stood near the polls during greater part of day ; much of time stood near the exit
end of barricade out of way of voters, but where I could see. The voters seemed
inclined to crowd too fast at the entrance, and the State constable, I think, two, were
placed at each end of barricade. The voters were allowed to come in, in number two
to four at a time ; white and colored came in together, Democrats and Republicans.
I saw no discrimination attempted by any officer. As each batch came up they were
sworn and voted, if legal voters.

No distinction in favor of Democrats in the matter of admission at
the entrance end of this passage-way is alleged by any witness. The
only discrimination that is claimed to have been made is, that Demo-
crats were allowed to enter at the exit end and vote, and that the like
privilege was denied the Republicans.

Contestant's testimony upon this point is the following. E. M. Bray-
ton at (pp. 162 and 165) says :

Q. Did all the voters pass in at the northern end ? A. No, sir ; I saw several pass-
ing in at the other end, and it seemed to be the~general understanding that whenever
white people wanted to vote that they would be taken in that end intended tor the
exit and allowed to vote ; while that was going on of course the colored people would
be blocked up in the passage way and their voting discontinued. It was understood
the large bulk of white people had voted early in the day.

SMALLS VS. TILLMAN. 507

Cross-examined :

Q. Was this knowledge that the white men soemed to be permitted to vote at
the exit end gathered from what you heard or from what you saw? A. My knowl-
edge on that point, I should say, was hased more upon what I heard than what I saw;
but what I witnessed confirmed the reports that I heard.

What he " witnessed," in this regard, is thus stated by him, at p.
161:

Q. Did you go to the poll to vote ? A. I did, about 2 o'clock ; I had been waiting
there for an opportunity to get access to the poll where I could vote ; I saw no appar-
ent diminution of the crowd at that time ; I had observed through the passage, or what
was intended for the exit of voters, that there was occasionally, or frequently, [which ?]
voters coming in for the purpose of voting ; and the other end, which was intended
for the voters to go in to vote, that there was a large mass of people waiting there
for an opportunity to vote. I had not been able to find a chance of reaching the poll,
so I spoke to the sheriff and told him that I was anxious to leave by the train, and
asked him if it was not possible for him to clear the way so I could cast my vote.
He said, " Oh, certainly, you can come with me, and I will get you a place." He
cleared the way through the crowd, and carried me .to the end intended for the exit
of the voters to the poll.

James Major, the faithful deputy-marshal (at pp. 167 etseq.}, testifies :

Q. Were the white meu and the colored men allowed to come in indiscriminately?
A. No, sir.

Q. State how they were admitted? A. The colored people all was packed on that
end where they said they had to come in ; they were strong from the entrance, packed
one upon another up to the poll, and the Democrats had a stick across; at this end
where I said they had two men with two sticks across the door, and they let them in.
They said no one could come in there. After a while they brought up a white man
and said he was a sick man, and let him go through that way. / had a flood many sick
men, too; I sent off and brought >ip my sick men, and they said, they can't go in here.
Finally, all the whites crowded the poll to get in this way.

Q. Which end are you speaking of? A. The whites went through the south end.

Q. All the white people ? A. Pretty much all; if the colored men went up those
in the crowd were cutting them up with knives ; they got the people so excited with
their cutting them up with knives. I went in there when the crowd was thin.

Q. Did the most of the white voters come in from the south side ? A. Yes, sir.

Q. And the colored people were kept at the north end? A. Yes, sir.

Q. Would the managers of election let the white men in while the colored people
were waiting on the north side to vote? A. Yes, sir; they staid there until the poll
closed, at 6 o'clock.

Q. Did the managers say^the colored voters must come in from the north side? A.
I don't know what the managers said.

Q. Did the men say so ? A. They said they must go around on the north end, and
tlic white people on the south end.

The alleged cutting by Democrats will be considered in its place.

Cross-examined :

Q. Was there during the day a colored man let in at this exit end of the barricade
who was too sick to vote? A. Yes, sir.

Q. A,bout how many ? A. I could not say exactly how many, but I know that two
or three slipped in at that end.

Q. But was there not some who were sick that they let in that end ? A. After they
cut Uncle Sam so bad they let him in.

Q. You know any other ? A. No, sir ; no other. I think John Holsom ; he was
sick, and he went in that way.

Q. You carried some sick people there, and they were refused ? A. I disremember
who they were, but I called for some sick. I will tell you who was one that went in,
one old maii named Greenhiver; he was one of the sick that I tried to get in there.

And this is all the testimony to prove " discrimination."
Mr. Aldrich (at pp. 299, 300), says:

As to discrimination between Democrats and Republicans, in that many Democrats,
as it is charged, were allowed to approach the ballot-box from the exit end to vote,
this is not true. I did see voters approach the box from the exit end, but such were
Democrats and Republicans. Sick voters were allowed to enter there. I saw some
ministers and very old people also go in that end. 1 probably saw some few others

508 DIGEST OF ELECTION CASES.

enter there. I do not remember why. This class was not large though. I had no
special right to know why they were allowed, as 1 had no authority over the election,
and unless I heard reason mage with application therefor I made no effort to discover.
I heard a great many Democrats and Republicans told that they could not enter at
exit end, and all voters were directed to go to the entrance.

Cross-examined (p. 303):

Q. You spoke of white and colored men entering at exit end ; in what proportion ?
A. I cannot say; not many of either.

Q. Did you see more than one colored man ? A. Yes.

Q. More than ten .' A. I saw several; don't know how many.

A. More than five? A. My memory is not clear. I noticed this as I did anything
else occurring that day ; I would say more than five, though.

Q. Were there more than twenty ? A. I cannot say ; I have given you as far as I
could.

Q. Of the number of colored men you saw enter exit end were they Republicans?
A. Yes; they were mostly Republicans.

Q. About how many whites entered at exit end ? A. I cannot say ; there TIKIV have
been ten, fifteen, or thirty; possibly more or possibly less; as compared with num-
ber that entered entrance end it was small. A reason had to be given for one's going
in at exit end, sick, aged, and so forth.

Q. Were there less than 300 ? A. Yes.

Q. Less than 150? A. I don't think I saw more than fifty, if that many, enter at
the exit end that day.

James T. Wingard, the town marshal of Aiken, testifies (at pp. 309,
310:)

I could not vote until late In afternoon on account of crowd of colored men. Some
one got me in to vote or I could not have voted.

Cross-examined :

Q. At what end did you vote? A. At exit end.

Q. Did colored people surround that end ? A. Yes, and voted there ; they let in two
colored men when I voted ; they were Republicans.

O. C. Jordan, a lawyer (at pp. 315, 316,) says:

Voting continued, and the pressure was great, and hard for any one to stay in the
crowd. I saw white and colored men leave the crowd; could not stand the pressure.
I stood there at the entrance over three hours to keep the entrance clear. Later some
one said John Holsteiu is here, a colored man with consumption, and wants to vote.
I went to the carriage door and took him through the exit end, and told the parties
there to keep the crowd out, to let him in, as he was unable to go in at the entrance.
They let us in and he voted directly. Sam Harvey was driven up in a cart, and said
he bad been cut, and has come back to vote. I took him in at the exit end, and he
went in that side also and voted; a colored man. A drunken man was standing near
the exit end and used oaths about colored men being let in and not whites at the exit
end. Chatfield, in a few moments, walked up and said: "I can't stand to press in at
the entrance ; get me in to vote." He is a Republican, and the parties knowing him,
let him in at the exit end. They knew him as a respectable man. As he came out
this drunken man cursed Chatfield. He (Chatfield) slapped me on the shoulder and
said: "That man is crazy." I voted others at that end. I have four colored.men at
work with me. They all voted the Democratic ticket. As to the location of the poll-
ing place, the idea to change it to the place where it was held was not had until the
day before the election. We had heard that all the Republican voters would be
massed here, and the place previously agreed on was on a side street, considered too
narrow .for the crowd expecting to be here, and the change was made to Main street as
more fit for all purposes. I am fully satisfied had the colored people conducted them-
selves in a becoming manner there would have been no trouble at this poll.

And see testimony of D. S. Henderson at p. 286.

The testimony shows but three able-bodied men, besides the town
marshal, who voted at the exit end, viz: Brayton, Chatfield, and Deputy
Marshal Major all Republicans.

James E. Crossland (at p. 228. says:)

Q. James Major has stated that the Republican voters were prevented from coming
in to vote, and that Democrats were allowed in freely ; state if this be so or not. A.
During most of the day I administered oath to voters ; occasionally one of the other

SMALLS VS. TILLMAX. 509

managers would take my place; but while I was on duty there was a continuous
stivam of voters coming; in at entrance end and going out at exit end. As far as I
could see there was no discrimination made.

And neither the Republican supervisor nor Deputy Marshal Baideeu,
both of whom were with the managers, and both of whom were exam-
ined as witnesses for contestant, make any charge, of this character.

The following testimony, showing why the polls were so crowded at
this poll, may as well be introduced here:

Mr. Henderson, State senator, at p. 282, says :

Q. State whether or not there was a large crowd of negroes here that day or not T
A. An unusually large .crowd from Silverton, Miles's Mill, Laugley, Beech Island,
IJuns Chalk Beds, near Bath, who could easily have voted at their homes. There
were precincts at Langley, Schutz, Low Town, near Miles's Mill, at Beech Island, and
Silverton. They were plenty from Edgefield also.

Mr. Grassland, (at pp. 288, 289,) testifies :

Q. How long have you resided in the territory embraced in the present county of
Aikeu ? A. About thirty-five years.

Q. Have you not surveyed in a great many portions of the county? A. Yes, sir.

Q. Have you planted in Aikeu County ; and, if so, how long, and in what locality T
A. I have planted since 1852, on the Upper Three Rivers, near line in lower part of
county ; in Beech Island, in Millbrook, and Aiken townships.

Q. Have you, then, not had occasion to become acquainted with the negroes in that
part of the county ? A. I kuw a great many of them in that part.

Q. Did you not see a great many negroes here thar day that reside in those remote
sections of the county? A. Yes, sir; I saw some from various remote parts of the
county.

Q. Did you not see some there from Edgefield ? A. I heard at least three acknowl-
edge at the poll that they were from Edyefield County ; strangers to me.

Q. Do you not know the locality of the various voting precincts in the county ?
A. Yes. sir; a great many of them.

Q. Were not a good many colored people here who lived much further from this
poll than others in the county ? A. Yes ; a great many.

A. Was not the crowd at the poll, and the consequent exclusion of a few at the close,
duo to this unusual influx from other remote sections of the county ? A. I think so
beyond doubt.

Q. Had these colored people remained and voted at the precincts in their neighbor-
hood, would not every white and colored man here have had an ample opportunity to
vote.' A. Yes; hours before the polls closed they would have finished. This teas the
larytst vote ever polled here.

Q. Do you not know that a considerable number of the Republican voters reside in
the vicinity of Langley and Silverton precincts? A. Yes, sir.

Q. Can you state how many Republican votes were polled at Langley and Silver-
ton ? A. Not a one at either poll. James Powell, a northern man and supervisor at
Langley, voted Democratic ticket, all but Garfield. Said he could not stand Smalls

See also testimony of Mr. Aldrich, at p. 300 ; Thomas H. Hayne, p.
317.

Contestant's own witness, James Major, the "deputy marshal," testi-
fies as follows, (at pp. 172, 173) :

Q. These three hundred men and over, were they from Aiken precinct, or from other
parts of the county ? A. They were from Aikeu and some were from Mile's Mill.

Q. Were not the majority from Miles' Mill, and other precincts outside of the
county ? A. Those that came from Miles' Mill were out of Aiken.

Q. Was not a majority of those 300 from other precincts outside of Aiken precinct T
A. I did not notice among that pile to see who were from Aiken and who were not.

Q. You have sworn they were from Aiken. A. I don't know where they were from.
I know a great many : some that were not from Edgefield, and they were from Edgefield.

Q. Were these three hundred men and over, who did not vote on that day, from
Aiken precinct ? A. Xo, sir ; I told you that some were from Miles' Mill that they
objected to and would not let vote.

Q. Was any of them from Aiken precinct? A. Yes, sir.

Q. About liow many ? A. / can tell you for certain about ichat I know had no right
here ; there were about twenty or thirty that I know had no right here in Aiken precinct ; they
did not rote; fcan be certain of that.

Q. Were these twenty or thirty refused by reason of challenge? A. Some were re-

510 DIGEST OF ELECTION CASES.

fused by challenge, and some were refused. I forget now what was the reason, ami
some could not get in of those I told you ; and after that cutting was going on there,
they said they were afraid of their life. Some that I gave the tickets to returned the
tickets to me and said they were afraid to vote.

Here a United States deputy marshal, appointed in the interests of
" a free ballot and a fair count," admits distributing tickets to persons
whom he knew to have no right to vote.

The next charge against this precinct is that violence of language and
of act was employed, and a display of fire arms made to intimidate Re-
publicans.

The only witness complaining of the usage of violent and abusive lan-
guage toward him is E. M. Braytou. At p. 161 he says :

Q. Give some of the threats, if you please. A. Well, it is not easy to recall the pre-
cise language that was used.

Q. Well, the substance? A. The substance was that I was a scoundrel, and that I
had come here for the purpose of stirring up a strife amongst the people, and I ought
to be run out of town. Oue man would say he wanted a lock of my hair, and another
would suggest to clip off a part of my ear, and such abusive language.

That in a heated contest some uncomplimentary remarks should be
made by somebody, out of an assemblage of more than a thousand voters,
about a man who came on the cars from a remote part of the State and
tried to vote in a county in which neither he nor his family had resided
for nearly four years, is perhaps, whether justifiable or not, rather nat-
ural. He testifies that no violence was done to him ; and if what he says
above be taken as literally true and unexaggerated, it is hardly suffi-
cient to require that the poll be thrown out. That some allowance is
to be made for Mr. Brayton's statements, however, aside from the height
of the barricade before referred to, will appear from the following :

Q. What was the appearance of the poll when you were there ? A. During all the
time there was a boisterous, turbulent crowd, cursing, threatening, and brandishing
weapons.

Q. Both Republicans and Democrats ? A. No, sir; the Republicans were very quiet
and orderly ; these were Dett ocrats ; there was a particular time when they seemed to
be specially excited; that was on my return to the poll, from the time when I first went
off; I came back to the poll on the opposite side of the street from the poll ; as I got
abreast of the cannon facing Lawyer Henderson's office, there were a crowd of white
men, and they commenced cajoling and talking abusively ; as I passed on the noise in-
creased ; the general attention of the crowd seemed to be directed to me. After that
there arose a scream and shout towards me, and as I approached near the corner of
the poll the crowd appeared to be surging towards me, and as I reached the corner it
looked as if I was going to be surrounded by the crowd a crowd of these people.

Q. Democrats? A. Democrats; coming up at the same time there were several
white men who appeared from their badges as if they were acting as peace officers.
I walked nearer the poll, probably going about thirty feet from the corner ; then I
stopped ; a crowd came running to me, and among them a good many colored people
Republicans who I presumed had come in a friendly spirit, for the purpose of giving
me protection if it was needed, for it certainly looked as if it threatened to result in
violence and trouble. I saw a good many of these white men with weapons in their
hands, and they were indulging in threats and jeers.

Q. Against whom ? A. Particularly and generally against me, I think. The sheriff
also up to that time, and begged and pleaded with the crowd to go back, and he kept
close to me for the purpose, apparently, of protecting me if there was danger. That
condition of affairs continued for half an hour or three-quarters of an hour, I should
judge ; it appeared during all that time that trouble was imminent ; these various
threats could be heard from these men as to what ought to be done with me. (Bray-
ton's deposition, pp. 160, 161.)

This turbulent, riotous, and perilous scene, not substantiated by any
other witness, is thus described by Sheriff Holley, at p. 313 :

Q. Was not Mr. Brayton cursed and abused by white Democrats? A. On one occa-
sion only ; he was around the polls all day while in town. A few persons were talking
of him sneeringly ; as soon as I discovered this, I walked up to them and told them to lei
JBrayton alone, and they did so.

SMALLS VS. TILLMAN. 511

But two acts of actual violence are charged : first, that some colored
men were cut with knives, and. secondly, that some one threw pepper
among the voters in the barricade, which flew into their eyes.

One man, Sam Harvey, is shown to have been cut, but by whom or
under what circumstances does not appear. Major, whose testimony
as to the cutting has been partly quoted above, says it was done while
the colored people were trying to get in at the exit end of the barricade
to vote. Short, however, who claims to have seen it, as also Johnson,
were under the impression that it was done' in the crowd at the entrance
end. The man himself swears that he does not know who cut him.
Major, though he swears in one place (p. 169) that it was done by "Dem-
ocrats," swears in another (pp. 170-1) that he saw but one man have a
knife, and that he does not know who did the cutting. On the other
hand, Mr. Aldrich, at p. 303, testifies that he saw colored people armed
with pistols, clubs, knives, and sticks, and having knives in their hauds r
open.

But, whoever did the cutting, the injured man afterwards voted; and
no one else claims to have been prevented from voting by the occurrence-

Xo other man who was cut or otherwise injured by violence through-
out that day. except the sheriff, was either produced or named.

As to the pepper, there is no testimony as to who threw it, and only
one witness produced, George Knight (pp. 180-1), who professes to
have been struck by it. This witness says in one place it was thrown
from a window, and at another that it was thrown from the door, and
again that he does not know who threw it. It was thrown promiscu-
ously into the barricade where the Democrats and Kepublicaus were
congregated together, if, indeed, it was thrown at all, which is perhaps
not a little doubtful. Contestee's witnesses who were at the polls and
in and out among the voters all day swear that they never heard of it
until some time after the election. None of the contestant's witnesses
claim that it was thrown more than once, nor that any votes were lost
to contestant by reason of it.

And, indeed, it is hard to see upon what theory this committee is
asked to find, in the absence of all proof, that the Democrats were
responsible for this act, if such act there was.

As to the display of fire-arms, the following account of it is given by
contestee's witnesses, which, as it is neither denied nor varied in any par-
ticular by any statement of any one of contestant's witnesses, must nec-
essarily be taken as true :

Mr. Aldrich, at pp. 300, 301, testifies :

I inyselt saw a considerable number of colored men, marching in columns of fours,,
approaching the town and the polls by the Edgefield road. They were in command
of a colored man, who seemed to be giving orders. This company of men were yelling-
and screaming, and brandishing sticks as they approached the polls ; and in this man-
ner were marching to the polls. Their leader had on a blue uniform blue shirt. As
these men marched up they were met by peace officers. I heard a great many say :
"Stand back! stand back! don't crowd the polls. You will have a chance to vote.
Take your position and go in in your regular turn." This company pressed right on,
the head of it then quite near the polls. Then I heard peremptory orders from the
peace officers that they must not crowd the polls in that manner. The excitement
continued to grow. I saw men, white and colored, running, some away from the polls
and others up to the place where an altercation between the peace officers and this,
company seemed to be going on. I think then it was that I heard this officer in blue
rallying in his crowd. A riot seemed imminent. Many of the peace officers acted with
a calmness and a courage that I have seldom seen equaled. It seemed that all remon-
strance had no eft'ect on this company. I saw then several of the peace officers with
guns in their hands. Such officers as had guns did not rush on this crowd or company,
but stood at some distance on the opposite side of the street, and appeared to be wait-
ing developments. There were a good many peace officers, State constables county

512 DIGEST OF ELECTION CASES.

officers, high sheriff and his deputies, and town officials. I believe that this appear-
ance of State officers and others stopped the riot. I saw a demonstration somewhat
similar to first which happened later on in the day, in quelling which second disturb-
ance the high sheriff was struck by a colored man and Republican. The excitement
then was at a great height, and some ten of the peace officers gathered again with
their guns, and the turmoil and fuss subsided. I heard no gun fired during the day.
I saw no Democrat assault a Republican; saw very few men arrested. Put up three,
I think.

Mr. Aldrich further states, at p. 304, that each of the constables had
on the regular badge.

The sheriff, at pp. 311, 312, says :

Q. Did you see any disturbance that day? If so, give an account of it. A. Be-
tween 1 and 3 o'clock I was near poll and heard a tremendous yelling on the main
street where the poll was, and soon after I saw a crowd of colored people coming,
waiving sticks in a threatening manner, so much so that I went towards them and met
them some one hundred yards from the polls ; I went in front of this crowd and held
up my hand and motioned to keep quiet that I might talk with them ; I stood there
till they advanced so near that I had to get out of way or be hit with their sticks ; I
got out of their way and stood one side until part of the column had passed, still av-
ing my hands to them, but they did not heed me ; kept on towards the poll ; I then
started off in a fast gait to get again to the head of the column, where quite a crowd
was waiting to vote; I got then near entrance to poll, and I saw that the whites wi're
excited ; so were the blacks ; I told them I would preserve order, and I walked back
into crowd and commenced to talk to them again, appealing to them to keep quiet, or
they by their conduct would*bring on bloodshed ; in getting back some thirty yards I
met up with a colored man, John Mosely, who was extremely unruly, and as I had
known him all my life, addressed him kindly, advising him not to go on as he was
doing, as it was unnecessary, and as the sworn peace officer I must k<vp it, upon
which he raised hisstick and flourished it over his head and said, " I'll be God damned
if I don't die right here." I said, "That is foolish," and I intended to preserve peace ;
wanted him to so understand ; he then drew his stick, a very heavy hickory stick, in
right hand, and with his left struck me in the breast ; his drawing the stick over my
head led me to think he intended to hit me with it ; as he pushed me back with his
left hand I caught hold of him; the crowd then surged upon us; not knowing what
for, I drew my pistol, believing they intended to rescue him or assault me. Imt when
I drew pistol and told crowd to stand back they got out of my way ; about that time
Mr. Wingard and others came to my assistance and we carried him to guard-house.
After putting him up Mr. Wingard said, "We will have to put up Arriugton to save a
difficulty ; " he was in command of this riotous crowd, giving orders, &c. We took
him and locked him up. That ended the disturbance for that day.

See also the testimony of D. S. Henderson (pp. 283 and 287), James
T. Wingard (p. 309), and O. C. Jordan (pp. 314, 315).

It is worthy of note that although this riot and the display of arms
upon the part of the State constables, by which it was quieted, took
place during his stay at the polls, E. M. Brayton, the only witness of
any intelligence and respectability produced on behalf of contestant
as to this poll, makes no reference to either in his entire deposition.
His disposition and anxiety to color the case as strongly as possible for
contestant is apparent in every sentence his deposition contains, in
view of which fact his silence as to this armed "demonstration" is too
significant to require comment.

The remaining charge against this precinct is that a cannon was
placed in the vicinity of the poll, and used to intimidate and overawe
JEJeptiblieans.

In his notice of contest the contestant clainfls that this cannon was
loaded ; but no offer of proof to this effect was made.

But three of contestant's witnesses speak of this gun, and they are
Brayton, Major, and George Washington Short.

Brayton's testimony on this point (p. 160) is as follows :

What seemed to me unusual was the appearance of a mounted cannon facing the
poll.

SMALLS VS. TILLMAN. 513

Q. How far away ? A. About seventy-five feet from the poll ; two-thirds of the way
across the street from the poll was in a line with the cannon. There was a collection
of white people standing by the cannon on the other side, and they icere pretty thickly
massed between that and the poll.

Q. Did any of these people standing around the cannon appear to have charge of
it ? A. Not at that time.

Q. What building or office was this cannon stationed near or in front of? A. In
front of Lawyer Henderson's. It was almost in a direct line between that office and
the poll.

No other " time " is mentioned by this witness at which anybody did
appear to have charge of it. The ever-faithful Major, however, testi-
fies, at pp. 169, 170, and 172, as follows :

Q. Did you see any men in charge of the gun during the day, or handling it ? A.
Yes, sir.

Q. Democrats or Republicans ? A. Democrats; Republicans ain't got anything to
do with that.

Q. Did you see any men with guns in their hands ? A. Yes, sir. * * *

Q. What did they do with their guns ? A. They formed in line.

Q. By the cannon ? A. Yes, sir.

Q. Who was in command of them ? A. I don't know the commander, I just seen
them ; I don't know who commanded them, but I know them every one. * * *

Q. Was there any firing of guns or cannon or pistols during the night before the
election or the day of election? A. The day of election the cannon was fired.

Q. What Time ? A. Along between three and four ; I was in bed when I heard it.

Q. Shoot many times ? A. I never heard it but that one time.

Q. Heard any other firing ? A. No, sir; they did not fire any that day, after I heard
it that morning.

Cross-examined :

Q. Was this cannon in position when you first caine up ? A. Yes, sir.
Q. You know who carried it there ? A. No, sir.
Q. W T as it loaded f A. Well, I don't know that.

Q. Was there a gun or pistol fired in or about the poll that day from the time it was
opened ? A. I did not hear it.

George Washington Short's testimony as to the cannon (p. 174) is
the following :

Q. Do you know of any violent demonstration, such as the firing of cannon, pistols,
or the display of knives t A. I know this : just about good daylight the last cannon
was fired.

Q. How many times did you hear the cannon fire I A. Just beticeen 5 and 6 in the
morning, to my recollection, the cannon icas fired six times.

All the other witnesses, on both sides, agree that this gun was fired
but once on the day of election, and all agree that this was not Utter
than 4 o'clock in the morning. Evidently this witness does not derive
his name from any close moral resemblance to his illustrious namesake.

Again, at pp. 174, 175 he says :

At the time while that was going on I threw my eyes over the street, and there was
a military company with guns.

Q. Bayonets fixed ? A. Yes, sir; and cannon fixed.

Q. Caiiuon bearing on anything f A. Yes, sir; bearing upon the colored voters, so
if it was fired it would have cut them down.

~$o other wituessjon either side saw a bayonet that day. And see the
testimony of Mr. Aldrich, at p. 305, and of the town marshal, at p. 311.
Finally, at p. 175, Short continues :

| ;I saw Lon* Cutner go and move the cannon more in a position upon us. I looked
upon him and saw when he done it. The whites were crowding down on the colored
with guns and pistols in their hands.

Xo other witness saw this incident as to the cannon, and no other
claims that the whites at any time moved toward the colored people
with either guns or pistols in their hands. At the only time when any
H. Mis. 35 33

514 DIGEST OF ELECTION CASES.

guns were seen, namely, at the time of the riot, the testimony is con-
clusive and uncontradicted that the State constables who had them
"did not rush on this crowd or company [i. e., the rioters], but stood at
some distance on the opposite side of the street ; * * * never ap-
proaching any Republicans; remained on the opposite side of the street."
(See pp. 300, 305, 310.)

Before parting with Short, it may be as well to note the fact that every
material allegation in his deposition is refuted by either contestant's
own witnesses or those of contestee, and frequently by both. His order
of intelligence may be fairly estimated from the following extract taken
from his deposition, at p. 176 :

When these men went up to vote there were men there that asked them if they
could vote ; when I went up to vote Mr. Kline said, " Ain't you Jacob Jenkins?" I
said, " No, sir ; my name is George Washington Short. They generally call me Jacob
for short ; I suppose it is a too great honor to give me my ex-name."

His character, and that of two other of contestant's principal wit-
nesses, is thus stated by Mr. Aldrich, at p. 305 :

James Major, George Washington Short, and Jack Eobinson I have seldom seen at
any work never at steady work ; so far as Major is concerned, about elections is very
busy, and election matters. George Washington Short saws a little wood occasionally.
He loafs most of his time. Jack Robinson never saw him strike a lick of work in
his life.

This charge as to the cannon, it will be observed, rests almost wholly
upon the testimony of these two men, Major and Short. Brayton tes-
tifies only as to its location, which is not denied. The testimony upon
the other side effectually disproves any improper intention or effect.
And, indeed, no witness testifies that he was intimidated by it, or that
any objection or complaint was made about it by any one until after the
election.

D. S. Henderson, pp. 282 et seq., testifies :

Q. It has been said a loaded cannon was pointed at the polls, and was put there by
Democrats to intimidate colored voters T A. That cannon was brought to Aiken for
a public celebration, some time short while previous to election ; it was carried to
depot before election to return to Augusta ; and it was from some cause not sent by
railroad company, they not having car suitable just then. On night before election
there was a meeting in town, a procession, &c., and some of the young men of the
town brought it up-town and fired it off, and it was left there. Besides that cannon
there was another not fifty yards from it, which has been often used on public occa-
tions, and just as formidable as the other, which has been there for several flections,,
and is there now in the street, not over seventy-five yards from where the polls were
held. As far as the cannon from Augusta being loaded, I know that no such thing as
grape, ball, or buck-shot was about it ; there was not even any powder with it ; it
was not loaded, for men were using the staff in it all day ; and I will say right here
that it is all foolishness to say that this cannon was pointed on Republican voters at
the polls, for there was all the time more white men in the crowd than negroes, and
in the room there were more Democrats than Republicans.

Brayton, it will be observed, testifies that the whites were pretty
thickly massed between the cannon and the polls. Only Short denies
it.

The witness continues :

Q. As a matter of fact, do you not know that no man was frightened, white or black,
by that cannon ? A. No one was frightened by it ; I was in crowd all day, and saw

no one show any uneasiness about it.

*******

Q. What time was the cannon fired ? A. I cannot say ; I heard it, perhaps, after
midnight.

Q. Do you know whether it was fired by instructions of leading Democrats ? A. I
do not know, nor do I think so.

Q. Did you hear it stated during the day of election that it was loaded ? A. I did
not.

SMALLS VS. TILLMAN. 515

Q. Did you hear any colored meii say that it was loaded ? A. I heard no one say
that it was loaded ; in fact I believe they knew it was not.
Q. Was any eft'ort made to take that cannon away? A. No.

Mr. Aldrich, at p. 301, says :

Q. Something has been said of a cannon ; do you know anything of this ? A. That
cannon was brought over here some time previous to the election, for the purpose of
firing salutes at a Democratic State meeting the clay candidates for State offices spoke
here. It was to have gone back to Augusta, but for some reason the railroad did not
carry it back short of cars, or something of that kind. I saw it at depot just pre-
vious to election. Some procession had it shortly before election ; it was brought from
depot, and a salute was tired with it. It stood in the street some time for several
days, I think before election. I would state that near the place this cannon stood
is another, in the street, belonging to Var M'Fitch, which he bought and gave to
some young men of the town. It is now still in the streets, and has been there for
several years. I passed by the cannon ; nobody seemed to control it ; no ammunition
that I heard of. If I remember correctly, in the morning some half-grown boys were
sitting on it and playing with it, and I think they turned it toward the box ; I told
them to clear out.

Q. Were there not a great many white men in the crowd ? A. Yes ; a great many
white people, and they were between the colored people and cannon. The barricade
run north and south ; the voters approached at north end ; the colored people gathered
at northeast and Democrats at northwest ; cannon was west of box ; had it been fired
to injure colored men before the charge, had it been loaded, it would have had to
pass through this body of the whites. If any colored man or Kepublican was afraid
of that cannon, I never heard of it. No one was in charge of it at any time, and the
only use I saw it put to was to use it as a seat by some persons who got tired.

Cross-examined, p. 304 :

Q. How many days before election did you see it? A. I think several days. I may
be mistaken. When it was used it was generally left where last fired ; its being near
the polls was an accident. It was the intention to open the poll on another street,
but this idea was abandoned day before election.

See also testimony of the town marshal, p. 310, and that of the sher-
iff, pp. 312-314.

It is, of course, impossible to reproduce all the testimony here, and
the bulk of the record precludes the hope that the committee will be
able to give the whole of it any very careful examination and analy-
sis. The foregoing review of it, however, makes it perfectly clear, we
think, that the Eepublican supervisor at this precinct was afforded
every reasonable facility for the performance of his duties; that the
crowded condition of the polls was due wholly to the unnecessary and
unreasonable massing of ^Republicans at this precinct, and that it was
not accompanied by any discrimination in favor of Democratic voters ;
that instead of retarding the casting of ballots, the number of votes re-
ceived prove the managers to have been, under all the circumstances,
remarkably expeditious ; that the amount of violence shown is small
for a heated election and an overcrowded poll, and that no part of what
violence there was is either 'proved to have been committed by Demo-
crats or shown to have damaged the contestant ; that the display of
fire-ams complained of was not only a justifiable but an exceedingly
temperate and commendable proceeding upon the part of the proper of-
ficers to suppress a most disgraceful riot inaugurated and conducted by
the adherents of the contestant, and carried to the extent of resisting
and bodily assaulting the sheriff of the county while in the discharge of
his duty ; and that the cannon referred to in the notice of contest and
in the testimony was left in the vicinity of the polls innocently, after
being used in a procession the night before, and without either the pur-
pose or the effect of intimidating anybody, or preventing the casting of
a single vote for the contestant.

The review to the testimony as to this precinct has been made so

516 DIGEST OF ELECTION CASES.

elaborate solely because of the grave character of the charges made
against it, and not because of its importance upon the result of the elec-
tion. The witness Major claims that about three hundred Republic-
ans were prevented from voting by reason of the crowd ; but the
character and unreliability of Major's testimony has been sufficiently
illustrated. Mr. Aldrich, at p. 301, testifies that at the closing of the
polls there were only about seventy-five or one hundred men left at
the entrance to the polls, and that among them he recognized some who
had already voted; and Mr. Henderson's testimony (p. 282) is to the
same effect. This estimate is corroborated by the following: Both Mr.
Brayton (p. 164) and Sheriff Holley (p. 313) estimate the colored people
around the poll that day at from 400 to 500, some of whom, however,
Mr. Holley says, were Democrats. And of the Republicans the returns
show that 383 voted ; the remaining 75 or 100, if counted for contestant,
would not affect the general result.

The precinct has uniformly been Democratic since 1876.

It only remains to add that not a man who was prevented by intimi-
dation or violence of any kind at this precinct is either produced, named,
or in any manner referred to. Yet at page 33 of the majority report
coutestee's majority here also is thrown out.

The extent to which the foregoing summary of the evidence relating
to the two precincts of Edgetield Court-House and Aiken Court-House
has drawn out this report illustrates the impossibility of anything like
a fair review of the conflicting testimony as to the hundred or more pre-
cincts in the fifth Congressional district. We can only again refer to
the full, and, we would add, very fair summary of and references to it
contained in coritestee's brief; to facilitate resort to which, for the pur-
poses of fuller examination than can be here given, we append to this
report an index of reference to the pages of the brief in question, in
which, unlike the majority report, the testimony, not on one but on
both sides is collated, and the pages of the record noted at which the
full text of the depositions of all the witnesses will be found. In the
opinion of the undersigned, the testimony of contestant's own witnesses
will be found in nearly every instance, when fairly compared with itself,
to furnish its own refutation, and to require slight aid from the testimony
adduced on behalf of contestee to prove the groundlessness of the grave
charges against the people of entire counties which are so recklessly
made.

It remains to consider an assumption made, and mainly relied upon
in the argument on behalf of contest, which, though utterly unsus-
tained by the evidence, appears also to have passed into and to have
formed the basis of the majority report, viz, the assumption that all
the colored voters in the fifth Congressional district of South Carolina
were adherents of the contestant. In his brief, in the argument before
the second subcommittee on his behalf, and in the majority report, the
census returns, showing a majority of colored voters in that district, is
triumphantly appealed to as demonstrating the election of contestant,
a process of reasoning which, if satisfactory, and if only thought of
early enough, might well have saved the committee the labor of its de-
liberations, the country the expense of the contest, with its voluminous
testimony, and, indeed, the people of the district the trouble of holding
the election at all.

Upon this subject the fact is not only established clearly by the testi-
mony taken on behalf of contestee, but conceded by contestant's own
witnesses, that the sitting member was largely supported by colored voters
throughout his district in the election of 1880. There is not a precinct in

SMALLS VS. TILLMAN. 517

any one of the five counties referred to in the testimony at which colored
men are not proved to have voted for coutestee; and that, too, in nearly
every case by contestant's own witnesses. At Aiken Court-House about
one hundred colored men voted the Democratic ticket (p. 314) ; at Page
& Hankerson's Store a majority of the colored people who voted cast
Democratic ballots (p. 273); at Meeting Street precinct 200 colored men
voted with the Democrats (pp. 551-2) ; at Millet's, 65 (p. 641) j at Bal-
doch, 50 (p. 636), and so on throughout the district. In Barnwell County
alone 1,372 colored men enrolled themselves in Democratic and affiliated
clubs (p. 610) ; and at Allendale there were 225 in one club (p. 647).
See also pp. 493, 576, 593, 644, 563-4, 63-4. 114, 116, 159, 216, 289, 295,
298, 301, 305, 508, 321-2, 328, 329, 482, 484, 487, 502, 518, 525, 557-8,
570, 580, 582, 623, 632, 637, 641, 644, &c.

One of these Democratic colored men was fired at on the day of elec-
tion by a Republican at Allendale (p. 637) ; another was ambushed and
killed on his way from the polls, at Lawtonville (571) ; while social and
religious ostracism, threats, intimidation, and violence were resorted to
throughout the district to overawe and coerce them. See pp. 317, 321,
330, 332, 555-6, 562-8, 578-80, 582, 591-2, 623, &c.

II.

Our associates of the subcommittee have figured out a majority of
1,489 for the contestant in the Congressional district, excluding entirely
the vote of Edgefield County.

In their statement, however, there are two manifest errors which they
must have overlooked, and which we think they will not hesitate to
correct.

1. They give to the contestant the entire vote of 618 cast at Jackson-
borough precinct, in Colleton County, before the poll there was closed.
The testimony shows and there is no conflict whatever upon this point
that at least 200 of these votes were cast for the contestee, and not more
than 400 for the contestant. (Rec., 346.) We think it too plain for
argument that this poll should not be counted at all, and that the
managers and commissioners of election did right in not counting it.
But assuming for the present that it ought to be counted, it should be
at least counted correctly, 400 for the contestant and 200 for the con-
testee.

2. The whole vote of 276 at Horse Pen precinct, in the same county
of Colleton, is likewise given to the contestant, when his only testimony
in regard to it shows that it gave a Democratic majority of 20.

These are palpable mistakes, which we suppose our associates of the
subcommittee will not hesitate to rectify, and which, if allowed, will
reduce the contestant's majority to 775, on the theory of our associates.

Now, restoring the precincts of Silverton, Creed's Store, and Wind-
sor, in Aiken County, which our associates have mistakenly excluded
on the ground of violence and fraud, there will be added an aggregate
of 852 votes for the contestee and 26 for the contestant, which will give
the contestee a majority of 51 votes in the Congressional district, exclu-
sive of Edgefield County and the disfranchised precincts in other coun-
ties.

Conceding that there may be differences of opinion in reference to
various other precincts, the vote of Silverton, Creed's Store, and Wind-
sor cannot justly be excluded upon any known principle of the law of
evidence.

518 DIGEST OF ELECTION CASES.

The vote of Silverton is excluded upoii the testimony simply of a man
who was not there during the day, but at Low Town Wells, and who
merely passed by (not through) Silverton, and obviously knew nothing
of the election there (Eec., p. 130). Creed's Store is excluded because of
a personal difficulty that occurred there late in the afternoon of the day
of election, notwithstanding that it is admitted by all the witnesses for
the contestant that not a single vote, except that of one idiot challenged
for cause, was lost to him at the precinct, either on account of the diffi-
culty just mentioned or for any other cause (Eec., pp. 73,182). And
the precinct of Windsor is excluded because it appears that the Ee-
publican ticket-distributor left the place in a passion, on account of a
personal difficulty, and took the Eepublican tickets with him.

It will be a disgrace to our system of government, a disgrace to our
civilization, and a mockery of justice if whole communities are to be
disfranchised upon such absurdly trivial grounds as these. As already
stated, we do not think that our associates meant to do this ; we think
they have been mistaken or imposed upon.

We cannot concur in the exclusion of the entire vote of Edgefield
County, as determined on by our associates. We do not see why it
should have been singled out for punishment, when it is admitted by
our associates themselves that there was no greater manifestation of
violence and fraud here than in four other counties of the district, un-
less it be that Edgefield County gave the contestee his largest majority;
and this being summarily disposed of, it is easier to figure upon the rest
of the Congressional district.

The official vote of the county is 7,513, and the official majority for the
contestee is 5,421. We think the committee should pause and weigh
well the consequences before they nullify a majority like this. If the
contestee is to lose the benefit of it, and of numerous precincts in other
counties, aggregating one- third of the vote of the whole district, it would
be much more just, unless some political exigency demands the contrary,
to declare the whole election void and refer tlie contest back to the
people than to seat a contestant who evidently did not receive a ma-
jority of the votes cast, and whom no member of the committee can be-
lieve to have been elected.

The contestant's witnesses testify to some excessive ballots in this
county: At Landrum's Store, 76 (Eecord, p. 82) ; at Eichardsonville, 7
(Eec., p. 213) ; at Edgefield Court-House, 15 (Eec., p. 247) 98 in all.
There is no testimony tending to show which party was responsible for
this excess, nor is there any pretense that the excessive votes were not
fairly drawn out in accordance with the law. But assuming that all
these excessive ballots were cast by Democrats, and that all the ballots
drawn out were Eepublican, and that the returns should be corrected
accordingly, we would still have 6,369 votes for Tillman and 1,144 for
Smalls, or a majority in the county of 5,225 for the contestee.

Xow, if it should be held that by reason of fraud and violence this
vote cannot be held to show the true sentiment of the county, that the
adherents of the contestant were prevented from voting for him, and
that the contestee's apparent majority, therefore, should not avail him,
yet the fact remains that the contestee had a majority of the votes actu-
ally cast ; and in the face of such a majority to seat the contestant
would be simply an outrage. The utmost that it would be proper to do
under such circumstances would be to refer the election back to the
people for a new determination of it.

Again, if it should be held that, by his failure to send up to the gov-
ernor and secretary of state the poll-lists and precinct returns of the

SMALLS VS. TILLMAN. 519

several precincts, in accordance with the merely directory, and not
mandatory, requirements of the law, the chairman of the board of county
canvassers could destroy the reliability of the official statement of
the election made by the board in its official character, and concurred
in by all the members, including the Eepublican member of the board
a proposition which no amount of special pleading, confused argument,
or violent declamation can successfully establish it is nevertheless
conceded that the contestee is entitled to the benefit of such votes in
the county as are proved aliunde to have been cast for him. Outside of
the certificate the record shows 986 votes in the county for the contestee
and 15 for the contestant, as follows: At Edgefield Court-House, 763
votes for Tillman and 15 for Smalls (Bee., pp. 246-250); at Cheatham's
Store, 3 votes for Tillman (Eec., p. 538 ) ; at Meeting Street, 200 colored
votes for Tillman (Bee., p. 551); and at Bed Hill, 20 colored votes for
Tillman. To this vote, under the theory of our associates themselves, the
contestee is entitled, as proved by the record, outside of the certificate ;
and upon this theory, without the votes of the precincts of Silverton,
Creed's Store, and Windsor, to which reference has been made, taking
into account the evident mistake of our associates as to Jacksonborough
and Horse Pen, the contestee would still have a majority of 196 votes
in the Congressional district, as follows :

Small's majority, as per majority report . .....................

Smalls.
1,

489

Deduct Jacksonborough . . . ... .. .....

618

Deduct Horse Pen . ... . .

276

QQ4.

Add Jacksonborough, Tillman . ... ............. ........

200

595
400

Add Horse Pen, Tillman . ....

Add Edgefield County, Tillman

986

Majority for Tillman, 196.
Restoring Silverton, Creed's Store, and Windsor aggregating ....

1, 206 1,

852

010
96

2, 058 1,

036

Majority for Tillman, 1,022.

III.

In justice to the contestee, and to his counsel who prepared his brief,
we are compelled to call attention to some grossly inaccurate statements
in the report of our associates, which, though comparatively unimpor-
tant in themselves, serve to show with what little care our associates
examined the questions before them.

On p. 49 it is said : " These facts are admitted with a boastful frank-
ness on p. 83 of the contestee's brief." No such admission and no such
boastful frankness appear on p. 83 or any other page of contestee's t
brief.

On p. 43 of the report it is said : " It is objected on behalf of the
contestee that there is no notice of contest as to Barnwell precinct, in
the county of Barnwell." No such objection was ever made in the con-
testee's brief or outside of it, as far as we are aware. On the contrary,
on p. 87 of contestee's brief it is stated that " Barnwell Court-House
is one of the precincts most frequently mentioned in the notice of con-
test."

These and numerous other conspicuous inaccuracies, for which there

520 DIGEST OF ELECTION CASES.

is neither excuse nor justification, together with the grossly partisan
and one-sided citations of testimony in which the report of our asso-
ciates abounds, would strongly dictate the propriety of withdrawing
and revising it. The action of our associates presents a dangerous prec-
edent, which may react upon them. We find nothing in the record to
authorize the unseating of the contestee.
We therefore recommend the adoption of the following resolutions :

1. Resolved, That Robert Smalls was not elected as a Representative
to the Forty-seventh Congress of the United States from the fifth Con-
gressional district of South Carolina, and is not entitled to occupy a
seat as such.

2. Resolved, That George D. Tillman was duly elected as a Representa-
tive from the fifth Congressional district of South Carolina, and is en-
titled to retain his seat as such.

L. H. DAVIS.
S. W. MOTJLTON.
GIBSOST ATHERTON.

SAMUEL LEE JOHN S. KICHABDSON.

FIRST CONGRESSIONAL DISTRICT OF SOUTH CAROLINA.

Contestant charges that fraud, violence, and intimidation were practiced on behalf
of contestee; that false and fraudulent returns were made ; that legal and proper
returns were wrongfully rejected ; that ballot-boxes were stuffed with tissue bal-
lots in the interests of contestee : that no proper returns were made from Darling-
ton and other precincts, but a large vote was counted from that precinct which
should he rejected ; and that United States supervisors of election were hindered
and prevented from discharging their duties,

Held, that fraud, violence, and intimidation were practiced, an dfraudulent returns
were made, which must be corrected as the vote is proven to be.

That full effect must be given to returns which were unlawfully rejected.

The evidence is not sufficient to reject the return from Darlington precinct ; besides
there is no evidence in the record tending to show how the vote would then
stand if the return was rejected.

[NOTE. This case was reported to the House on February 24, 1883,
and was under consideration when Congress expired by limitation
March 3.]

FEBRUARY 24, 1883. Mr. CALKINS, from the Committee on Elections ,
submitted the following

REPORT:

The Committee on Elections, to whom icas referred the contested-election
case of Lee vs. Richardson, from first Congressional district of South
Carolina, having had the same under consideration, beg leave to make
the following report :

Mr. Pettibone, from the committee, has prepared an elaborate report,
with which in the main I agree. There are some facts found to which I

LEE VS. RICHARDSON. 521

do not assent, but they are not important enough to need extended
notice. The main difference of opinion is with reference to Darlington
precinct. At that precinct Richardson received 1,271 votes, and Lee
received 117. I do not think the evidence is sufficient to reject this re-
turn ; it is purely a question of evidence, and I cannot bring myself to
believe that the evidence is sufficient to justify its rejection. There is
no evidence in the record tending to prove how the vote would stand on
the theory of contestant, if the return was rejected. I think the evi-
dence with reference to this precinct fairly establishes two proposi-
tions, viz : First, that the colored voters, on the morning of elec-
tion, in large numbers, took possession of the market-house where
the elections were usually held. For some reason, not apparent,
the poll was opened at the court-house, instead of the market-house,
and the white voters at the opening took possession of it. Attempts
were made by the colored voters, early in the day, to force their
way to the box to vote, which seems to have been prevented by the
white voters crowding the stairs leading to the box. This led to crimi-
nation and recrimination and considerable confusion and excitement, and
a rumor seems to have prevailed among the colored voters that several
stands of arms had been brought to the town the night before the elec-
tion by the white Democrats, and that they were concealed in the court-
house and in Earley's store. Whether this was so or not is immaterial
in the view which I have taken of the testimony. There was no physi-
cal display of the guns on the day of election, and I find as a matter
of fact that probably as early as ten o'clock, and certainly not later
than eleven o'clock on the day of election the colored voters, under the
advice of one Smith, who was a leader and man of influence among
them, dispersed and did not attempt again to vote on that day at that
poll. The danger of bodily harm was not sufficiently imminent to war-
rant this course, and there was an entire lack of diligence on the part
of these voters to maintain their right to vote. As a matter of law
these voters had a right to vote at any precinct in the county ; there
was another voting precinct not many miles from Darlington, and there
is no reason given why they might not have voted at that precinct if
they were driven away from Darlington. For these and other reasons
I am persuaded that Darlington should remain, and therefore submit
the following resolutions, in which a majority of the committee concur:
Resolved, That Samuel Lee have leave to withdraw his papers, and
this case is dismissed without prejudice.

VIEWS OF THE MINORITY.

Held, That Darlington preciuct should be rejected, and Lee be declared elected by
234 votes.

Mr. PETTIBONE, from the Committee on Elections, submitted the fol-
lowing

EEPOET:

The Committee on Elections, to idiom was referred the contested-election
case of the first Congressional district of South Carolina, having had
the same under consideration, beg leave to report :

The district is composed of the counties of Georgetown, Sumter, Will-
iamsburg, Horry, Darlington, Marlboro', Marion, and Chesterfield.

522 DIGEST OF ELECTION CASES.

The returns of the State board of canvassers give to

John S. Richardson 20,142

Samuel Lee 11,674

Majority for Richardson 8,468

The contest was begun by the contestant, Samuel Lee, against the
sitting member, John S. Richardson, and in his notice of contest he
alleges the following grounds :

1st. That a majority of the legal votes polled at the election held on the 2d day of
November, 1880, in the* first Congressional district of South Carolina were cast for me.

2d. That owing to frauds, violence, and intimidation, committed in your interest
by your partisans and supporters in each and every county in the Congressional dis-
trict, the true result of the election was defeated, and a pretended and fraudulent
majority made to appear for you.

3d. That the returns made to the State board of canvassers by the commissioners
of elections of Suinter, Williamsburg, Georgetown, and Horry Counties do not con-
tain true and correct statements of the votes cast for a member of Congress in said
counties.

4th. That according to the returns of the election made by the managers of election
of the several voting precincts in the counties of Sumter, Williamsburg, and George-
town I received a majority of the votes cast in each of the said counties.

5th. That in Sumter County the commissioners of election illegally refused to .count
and canvass and include in their statement of the result of the election the vote cast,
canvassed, and duly returned for a member of Congress at the following voting pre-
cincts, to wit: Sumter No. 1, Carter's Crossing, and Rafting Creek.

6th. That in Williamsburg County the commissioners of election illegally refused to
count and canvass and include in their statement of the result of the election the vote
cast, canvassed, and duly returned for a member of Congress at the following voting
precincts, to wit : Salters, Gourdins, and Midway.

7th. That in Georgetown County the commissioners of election illegally refused to
count and canvass and include in their statement of the result of the election the
vote cast, canvassed, and duly returned for a member of Congress at the following
voting precincts, to wit: Upper Waccamaw, Lower Waccamaw, Sautee, Sampit,
Choppee, and Pee Dee or Birdfield.

8th. That in Horry County the commissioners of election illegally refused to count
and canvass and include in their statement of the result of the election the vote cast,
canvassed, and duly returned for a member of Congress at the voting precinct of
Martin Hill.

9th. That in Sumter, Williamsburg, and Georgetown Counties, at the following
voting precincts, to wit : Lynchburg, Mayesville, Shiloh, and Privateer, in the county
of Suniter, and Kingstree, Gourdins, Black Mingo, Greelyville, Salters, Cedar Swamp,
Prospect Church, Pipkins, Andersons, Scranton, and Grahams, in the county of Will-
iamsburg, and Georgetown, Upper Waccamaw, Sampit, and Carver's Bay, in the
county of Georgetown, the vote actually cast for me was larger and the vote actually
cast for you waa smaller than appears on the face of the returns made by the mana-
gers of election at the voting precinct aforesaid; that the difference between the vote
as actually cast and the vote as returned by the managers aforesaid arises from the
fact that at each of the aforesaid polls numerous ballots bearing your name for Con-
gress were fraudulently placed in the ballot-box for the purpose of creating an excess
of votes over voters, and thereby compelling the managers to draw out and destroy
the excess of ballots thus created, in order to reduce the number of ballots in the box
to the number of names on the poll-list ; that in drawing out of the box at each poll
the excess of ballots fraudulently created as aforesaid numerous ballots bearing my
name for Congress, and which had been legally voted, were drawn out and destroyed
and in their place was counted a corresponding number of ballots with your name
for Congress thereon, which had not been legally voted ; wherefore, to the vote re-
turned for me by the managers of election at each of the polls aforesaid should be
added the ballots bearing my name for Congress which were drawn out and destroyed,
and from the vote returned for you at each of the polls aforesaid should be deducted
a corresponding number.

10th. That in Marion, Marlboro', and Chesterfield Counties, at the folio wing voting
precincts, to wit : Marion Court-House, Berry's Cross-Roads, Campbell's Bridge, Lit-
tle Rock, Friendship, High Hill, Mt. Nebo, Marsbluff, Arieal, and Stones, in the county
of Marion, and Bennettsville, Smithville, Adamsville, Brownsville, Brightsville,
Hebron, Clio, Red Bluff, and Red Hill, in the county of Marlboro', and Chesterfield
Court-House, Mt. Croghan, and Hebron Church in the county of Chesterfield, for the
causes set forth in the preceding paragraph (No. 9) the vote actually cast for me was

OZO

larger and the vote actually cast for you was smaller than appears on the face of the
returns made by the managers of election at the voting precincts aforesaid ; wherefore,
to the vote returned for me by the managers of election at each of the polls aforesaid
should be added the ballots bearing my name which were drawn out and destroyed,
and from the vote returned for you at each of the polls aforesaid should be deducted
a corresponding number.

llth. That the polls required by law to be held at Stateburg, in Sumter County,
and at Griers, in Georgetown County, were not opened, because the managers of elec-
tion, who were your partisans and supporters, and members of the political party
whose nominee you were for Congress, neglected and refused to act, in consequence of
which numerous voters who went to said polls for the purpose of casting their ballots
for me for Congress were deprived of the opportunity to vote for me for Congress, as
they intended and desired.

l'2th. That at Black River or Brown's Ferry voting precinct, in Georgetown County,
276 votes were cast for me and 20 votes were cast for you ; that at the close of the
poll upon opening the ballot-box and counting the votes therein, the managers found
that there were 602 tickets in the box ; that this excess of 306 ballots was caused by
your partisans and supporters fraudulently placing in the ballot-box thai number of
small tissue-ballots bearing your name for Congress ; that when it was ascertained
that the ballot-box had been stuffed as aforesaid, a controversy arose between the U.
S. supervisors and the managers as to the duty of the latter under the circumstances,
and not being able to agree the managers sealed up the box and delivered the same
to one of the supervisors without making a canvass and return of the votes required
by law: wherefore, the vote cast as aforesaid at said precinct should be added to the
vote returned for you and for me, respectively, by the commissioners of election of
Georgetown Coxinty, to wit, 20 for you and 276 for me.

13th. That at Cheraw voting precinct, in Chesterfield County, the poll-list kept by
the managers of election and their clerk was falsified in your interest by the insertion
thereon of 116 fictitious names, and for the names thus fraudulently placed on the
poll-list a number of ballots bearing your name for Congress were surreptitiously
placed in the ballot-box and counted, canvassed, and returned for you ; wherefore
from the vote returned for you at said precinct should be deducted the number of
ballots so illegally counted, canvassed, and returned for you.

14th. That at each and every voting precinct in the counties of Chesterfield, Horry,
Marlboro', Williamsburg, Darlington, and Marion numerous illegal votes were east for
you by persons not qualified to vote and by persons who voted more than once.

l")th. That at each and every precinct in the counties comprising the first Con-
gressional district a large number of colored voters who desired and intended to vote
for me for Congress were denied that right, without good and sufficient cause, by the
managers of election.

16th. That throughout the Congressional district the supervisors appointed by the
circuit court of the United States to represent the Eepublican party, whose nominee
for Congress I was, and the deputy marshals of the United States were obstructed,
hindered, and prevented by your partisans and supporters from fully and freely per-
forming the duties required of them by the laws of the United States.

17th. That at each and every voting precinct in the eight counties comprising the
first Congressional district all the managers of the election were known to be your po-
litical partisans and supporters, and members of the political party whose candidate
for Congress you were ; that in the reception and rejection of votes and in the gen-
eral management and conduct of the election the managers of election aforesaid at
each and every poll acted in your interest and for your benefit; that at each and
every precinct where there was an excess of ballots in the box the managers of elec-
tion as aforesaid in drawing out such excess acted in your interest, manipulating the
ballots in such a way as to draw out mostly tickets with my name for Congress
thereon.

1-th. That in Darlington County there was not a free and fair election, owing, first,
to the repeating, illegal voting, and ballot-box stuffing, which was committed in your
interest and by your partisans and supporters at each and every voting precinct in
the county ; second, at Darlington Court-House poll, Florence, Efflngham, James
Cross-Roads, Gum Branch, and Tiinmonsville, by the poll-list being falsified by the
insertion thereon of fictitious names, repeating, violence, intimidation, illegal voting,
and by the rejection of a, large number of qualified voters who desired and offered to
vote for me for Congress ; wherefore the entire, vote returned as having been cast at
each of the above-named polling precincts should be rejected and entirely excluded.

19th. That in Darlington County, at the following voting precincts, to wit,
EtHugham, James Cross-Roads, Gum Branch, Timmonsville, Lisbon, Lydia, Society
Hill, Leavenworth, and Mechanicsville, for the causes set forth in paragraph No. 9,
tin- vote actually cast for me was larger, and the vote actually cast for you was smaller,
than appears on the face of the returns made by the managers of election at the
voting precincts aforesaid ; wherefore, to the vote returned for me by the managers

524 DIGEST OF ELECTION CASES.

of election at each of the polls aforesaid should be added the ballots bearing my
name which were drawn out and destroyed, and from the vote returned for j on at
each of the polls aforesaid should be deducted a corresponding number.

20th. That at Graham's Cross-Roads, Scrauton, and Cedar Swamp, in Williams-
burg County, the ballot-boxes were stuffed, the poll-lists falsified by the insertion
thereon of fictitious names, violence, intimidation, repeating, and illegal voting com-
mitted in your interest and by your partisans and supporters, to such an extent that
it is impossible to tell how many legal votea were cast at said voting precincts ',
wherefore the entire vote returned as having been cast at said polls should be re-
jected and entirely excluded.

To the notice of contest the sitting member filed exceptions and an-
swers as follows :

SIR: In reply to your notice of intention to contest my seat in the Forty-seventh
Congress of the United States as a member from the first district of the State of South
Carolina, served on me on the 20th day of December, 1880, I have to say

I. That I deny and except to your right to contest my seat, either in your own be-
half or in the interest of the voters of the first Congressional district of the State of
South Carolina, for the reason that you were not at the time of the general election
of the 2d of November, 1880, either a legal voter or a citizen of the said district or State.

I allege that two years previous ,to said election, with the intention of removing
from South Carolina, you sold whatever property you owned in South Carolina and
removedwith your family beyond the borders of said State, and returned to the said
State less than twelve months previous to said election.

II. I object and except to your notice so far as you charge force and intimidation
on the part of my supporters, because you do not specify, as the law and practice re-
quire, or pretend to specify, a single instance of force or intimidation committed by
any of my supporters anywhere in the Congressional district on any of the voters of
said district. Nowhere in your notice do you state who was forced to vote for me, or
who was intimidated by my supporters and prevented from voting for you, or in what
manner, place, or town such intimidation was had, or by whom it was done.

III. Because your specifications of grounds of contest are insufficient in law, and do
not set forth facts sufficient or of such a character as to enable you to contest my right
to said seat. And not waiving my aforesaid exceptions, but expressly reserving and
relying on the same, 1 do hereby expressly deny, on information and belief, all the
charges and allegations in your said notice contained and set forth, and require you
to prove the same, except as hereinafter admitted.

To the first ground of your contest 1 deny the same, and each and every allegation
therein contained. On the contrary, I allege that rny official majority, as found by
the State board of canvassers for the State of South Carolina, was eight thousand
four hundred and sixty-eight.

To the second ground of your contest I deny the same, and each and every allega-
tion therein contained.

To the third and fourth grounds of your contest I object, and except to them as in-
definite and insufficient in law. If true, as alleged by you, they do not show or allege
that I am not entitled to said seat, or that you are ; and they do not state how or
wherein the said returns are not true and correct, or what would be your majority in
said counties if the said returns were corrected as claimed by you. In reference to
your allegation in said third ground of contest, while I do not admit it, because I do
not know it to be true, but, on the contrary, req uire you to prove it, I claim and allege,
if true, as alleged by you, I would still have a large majority of the votes cast at said
election, and be entitled to said seat.

In reference to the fourth ground of your contest, I answer that I believe it is true,
as alleged by you therein, that a majority of the votes cast in said counties of Sumter,
Williamsburg, and Georgetown were cast for you, but I object and except to your
specification as indefinite and insufficient in law. It does not state what returns ;
from what voting precincts ; how or wherein the said returns are not true or correct,
or what would be your majorities in said counties ; and I expressly and emphatically
deny that you would, if your said allegations were true, thereby or by reason of any-
thing alleged in said third and fourth grounds of contest, have a majority of the votes
cast in said district, or be entitled to said seat.

To the fifth ground of your contest, I answer that I do not know or admit that in
Sumter County the commissioners of elections illegally refused to count and include
in their statement the votes cast and returned at Sumter precinct No. 1, Carter's
Crossing, and Rafting Creek. I admit that the votes cast at said voting precincts
were refused and excluded. As to the votes cast at Sumter precinct No. 1, I waive
the question as to whether the same were legally or illegally refused and excluded by
said commissioners, and agree that the same may be counted. And I allege and claim
if they be counted, I would still have a large majority of all the votes cast in said
district. As to the votes cast at Carter's Crossing and Rafting Creek, I deny, on

LEE VS. RICHARDSON. 525

information and belief, that they were illegally refused and excluded from the said
statement, and I allege and claim, if they be counted, I would still have a large ma-
jority of all the votes cast in said election.

To your sixth, seventh, eighth, ninth, and tenth grounds of contest, on information:
and belief, I deny the same and each and every allegation therein contained.

As to so much of the allegation contained in your ninth ground of contest as
alleges that there is such a voting precinct as Mayesville in Sumter County, I deny
the same ; and though I received a majority of the votes polled at said supposed pre-
ciiict, I allege that there is no such voting precinct established by law, and ask that
the vote returned and counted from said supposed voting precinct be excluded.

To your eleventh ground of contest, on information and belief, I deny that the poll
at Stateburg, in Sumter County, and at Grier's, in Georgetown County, were not
opened. I deny that said polls were not held because the managers neglected or
refused to act. I deny that because said polls were not held numerous voters who
desired to vote for you were thereby deprived of the opportunity to vote for you.

On the contrary! on information and belief, I allege that the poll at Grier's, in
Georgetown County, was held, and I charge and allege that your partisans and sup-
porters, with force and arms, took from the possession of the managers of said poll
the box containing the ballots cast for a member to Congress and carried off the same,
refusing to allow the said managers to count the ballots and ascertain the result.
And I further allege that no one was prevented from voting for you who desired to
do so, by anything that was done at either of said voting precincts by my partisans
and supporters, or by the managers at said precincts.

To your twelfth ground of contest, on information and belief, I deny the same, and
each and every allegation therein contained; and I charge and allege, on informa-
tion and belief, that your partisans and supporters, with force and arms, took from
the possession of the managers of said Black JRiver or Brown's Ferry precinct the box
containing the ballots oast at said voting precinct, and refused to allow the same to
be counted by the managers, as by law required to be done.

To your thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nine-
teenth, and twentieth grounds of contest, on information and belief, I deny the same,
and each and every allegation therein contained. As to your seventeenth ground of
contest, and all other grounds where similar allegations are made by you, I charge
and allege that the managers of the election were appointed, and the purging of the
ballot-boxes, where the same was found to be required by law, was done in strict
accordance with the laws of South Carolina governing in such cases, and that said
laws were framed and passed by the political party of which you are a member, and
the appointment of said managers and the purging of the boxes were done in strict
accordance with the practice adopted and acted on by the party of which yon are a
member when said party were in power in South Carolina. I further charge and al-
lege that the party to which I belong have not altered, amended, or repealed the said
lu\vs in one iota.

As to so much of your allegation contained in your eighteenth and nineteenth
grounds of contest as alleges that there is such a voting precinct as James Cross-
Koads in Darlington County, I deny the same, or that there was any vote polled at
or counted from any such voting precinct.

The undersigned alleges and charges that there is no such voting precinct estab-
lished by law as Mount Clio, in Sumter County, and claims that the vote counted
and canvassed as polled at said supposed voting precinct should be excluded.

The undersigned further denies that if the irregularities alleged by you to have
been committed did occur (of which he has no knowledge or information), they were
of a character in any degree to affect or invalidate his true and lawful election. On
the contrary he alleges and claims that, counting the entire vote polled at every vot-
ing precinct in the Congressional district, and accepting the returns made by the
Republican supervisors, wherever they made returns, as to the number of such votes
and the persons for whom they were cast, the contestee received a large majority of
all the votes cast for a member of Congress from the first district of the State of South
Carolina at the election held for such member on the second day of November, 1880.

While the undersigned denies that there was any " force or intimidation " what-
ever used or practiced anywhere in the Congressional district by his partisans and
supporters, he alleges and charges that there was great force, undue influence, vio-
lence, and intimidation practiced by you and your partisans and supporters upon and
over a large number of colored voters who desired to vote for him, and who in conse-
quence of such force, violence, undue influence, and intimidation were prevented from
voting for him, and forced by fear of violence and injury to their persons or property
to vote against their wishes for you. That this was notably the case at each and
every voting precinct in the counties of Sumter, Williamsburg, and Georgetown.
That to render this intimidation more complete and effectual you and your partisans
and supporters caused large numbers of the colored people to be formed into clubs,
and appointed captains over them, who were charged to march their squads in a body

526 DIGEST OF ELECTION CASES.

to the polls, and there see that they voted the Republican ticket. That you ;md
your partisans did so officer them and march them in squads to the polls, and by such
means massed large bodies of colored voters at certain polls, thereby crowding out
Democratic voters, and preventing them from voting thereat, and thereby overawed,
intimidated, and forced many colored voters to vote the Republican ticket who de-
sired to vote the Democratic ticket. That you and your partisans and supporters
procured certain little blank books, which you and your partisans and supporters
caused to be placed in the hands of certain of your partisans and supporters, and
gave out that these books were furnished by the United States authorities, or by the
National Republican party who were in authority for the purpose of entering therein
the names of all colored men who voted the Republican ticket, to be returned to the
said authorities as evidence that they had so voted.

The undersigned further alleges and charges that you intimidated a large number
of colored voters and prevented them from voting for contestee by procuring yourself
to be appointed aUnited States deputy marshal, and acting as such in the interest of
your own election. That you and your partisans and supporters procured the ap-
pointment of a large number of special deputy marshals, whom you and your parti-
sans and supporters caused to be stationed at each and every poll in the Congres-
sional district without warrant of law, there being no city or town in the district of
twenty thousand inhabitants. That these deputy United States marshals had dis-
played on their persons the badges of their authority obtained from the United States
authorities, and were active partisans and supporters of yourself, overawing and for-
cing many colored voters to vote for you who would otherwise have voted for him.

The undersigned further alleges and charges that in order the more effectually to
intimidate and force the colored voters to vote for you, yon caused your name as a
candidate for member of Congress to be printed on a thick, stiff, and striped-back
card, easily discerned at a considerable distance, thereby seeking to prevent, and in
a great many instances did prevent, the colored voters from voting a secret ballot, as
is contemplated by the law. That many of these colored voters desired to vote the
Democratic ticket on which coutestee's name was printed as a candidate, and would
have done so could they have voted it without its being known to your partisans and
supporters for whom they voted. That many colored voters actually came to the
friends and supporters of the undersigned and stated that they intended and desired
to vote the Democratic ticket, but could not do so, for fear of your partisans and sup-
porters, unless the Democratic ticket could be pasted on the inside of your striped-
back ticket, and these when this device was resorted to to shield and protect them
against the violence and intimidation of your partisans voted the Democratic ticket.

The undersigned alleges and charges that your partisans and supporters armed
themselves with guns and pistols, openly displayed on their persons, and went to the
polls so armed and equipped, and there threatened and intimidated many colored
voters who intended and desired to vote the Democratic ticket, and prevented them
from so doing ; that this was so done at each and every voting precinct in the coun-
ties of Georgetown and Williamsburg, and at Sumter Court-House, Carter's Cross-
ing, and Rafting Creek, in Sumter County.

The issues between the parties are so clearly set out in their plead-
ings that little comment thereon is needed.

"We therefore proceed to examine the case according to the testimony
found in the record, and the law applicable thereto.

GEORGETOWN COUNTY.

It is agreed (Eichardson's brief, Eecord, p. 92) by both contestant
and contestee that all the vote of Georgetown County was rejected by
both the county and State board of canvassers save one poll, to wit,
Georgetown poll that is, viz, Santee, Sampit, Upper Waccamaw, Lower
Waccamaw, Carver's Bay, Choppee, Pedee, and Brown's Ferry, eight
precincts thrown out and Grier's not held.

The " official returns" give to Lee 617 votes ; to Bichardson 302 votes
for the ichole county ; total, 919 votes. Thus giving to Mr. Lee a ma-
jority of 315 only.

But Mr. Eichardsou admits (brief, p. 10) that the total vote in 1876
in the same county was 3,836, almost four times as much as in 1880, and
this is explained because of the throwing out of the eight precincts-
"Were these eight precincts, or any of them, improperly thrown out ?

LEE VS. RICHARDSON. 52?

But, first, as to Georgetown poll. It appears from the Record, page
788 (B. H. Williams), and is not contradicted, that at Georgetown poll
923 votes were cast ; 1,092 were found in the box, 1G9 more than there
were voters (H. T. Herriott, Record, p. 817), and these were Democratic
tissue ballots, and all for Richardson. Instead of rejecting these 169
tissue ballots the managers, all Democrats, returned all the tickets to the
box and then withdrew 169 tickets and destroyed them (Record, 798),
but not one tissue ballot is shown to have been withdrawn. Other hon-
est ballots, which were honestly cast, were withdrawn and destroyed.
All the tissue ballots were counted for Richardson ; 112 honest Lee bal-
lots and 57 honest Richardson ballots were withdrawn and destroyed.

Thus Richardson got 169 more votes than he was entitled to and 57
less ; but his vote was increased 112 by the fraud and Lee's decreased
112 by the same fraud, and it was so counted in the make up of Rich-
ardson's assumed majority. Thus, as Richardson got by this fraud 112
more than he was entitled to and Lee 112 less, the difference is 224.
And manifestly if there was no other fraud Richardson's majority is too
great by 224 votes, and Lee's true majority at Georgetown poll was 539
in place of only 315.

Santee Poll.

At Santee an honest election was held ; 501 persons voted as shown
by the poll-list, and 501 ballots were found in the box. (J. B. Lloyd,
Record, 804.) Two votes were only for Presidential electors ; 449 votes
were cast for Representatives in Congress, and of these Lee received
476 and Richardson 23, showing a clear majority for Lee of 453. But
this poll was rejected, not because there was any fraud or any pre-
tended fraud, but as J. W. Tarbox, the Democrat chairman of the
county board of commissioners swears (Record, p. 797), "We threw out
the Sautee box because the box was sent without a written certifi-
cate authorizing the bearer to deliver it." But that the election was
an honest one, and that Lee received 453 majority, i s uncontradicted
and unquestioned.

Sampit.

This precinct was rejected by the same board of commissioners for
the same reason, because " the box was sent without a written certifi-
cate authorizing the bearer to deliver it."

At this precinct 437 ballots, as is shown by the poll-list, of which
432 were for Congress. (H. T. Johnson, Record, p. 815.) The poll-lists
kept by the two supervisors agreed ; 495 ballots were found in the box
when it was opened.

Xow, somebody committed a fraud by placing 58 fraudulent ballots
in that box. Two of the managers were Democrats and one a Repub-
lican. Twenty " little jokers," tissue ballots, were found inclosed in
another ballot. The managers destroyed the 20 tissue ballots and re-
turned to the box the ballot inclosing them.

Four Democratic ballots were found with one or more Democratic
ballots folded within them. These inclosed ballots were destroyed, and
then an excess of 37 ballots was still found. Then the managers drew
from the box, in strict accord with the law of South Carolina, 37 bal-
lots ; 18 were Republican and 19 were Democratic. The withdrawal
was as fair as could possibly be. But the fraud practiced, it is as clear
as sunlight, was a Democratic fraud ; yet this ballot-box was rejected,
not because of the fraud, but on a purely technical ground. Mr. Lee,
as both the Republican and Democratic supervisors, who were present,

528 DIGEST OF ELECTION CASES.

saw and reported the result, swear (Record, p. 816), got 256 votes
and Mr. Richardson 176, a clear majority for Mr. Lee of 80 votes, as
shown by the managers' returns. But Richardson got 18 more votes
than he was entitled to and Lee 18 less, because 18 " tissue ballots "
were counted for Richardson in place of 18 honest votes for Lee with-
drawn from the box, and then 36 votes should be added to Lee's vote,
and his majority is honestly 116 at this precinct.

Upper Waccamaw.

This precinct was rejected by the Democratic county commissioners
for the same reasons purely technical. The managers who held the
election were all Democrats (Record, p. 810). They were Mr. Rich-
ardson's political friends, and ought to have seen that no fraud was
perpetrated, as against him at least. But Bently Weston and R. F.
Johnson, the two supervisors, one a Democrat and one a Republican,
reported (Record, p. 814), and Johnson swears, that there were 432
names on the poll list ; that an excess of 50 ballots were found in the
box. This excess was drawn out and destroyed by a Democratic man-
ager, but by a singular perversity of fate 48 of the ballots were Repub-
lican and only two Democratic ! And, as a specimen, let the following
testimony of R. F. Johnson show :

Question. How many, if any, Democratic ballots were found together in one at the
counting of the ballots at the close of the poll ? Answer. Twelve in one.

After this manipulation the Democratic managers gave to Mr. Lee
341 votes and to Mr. Richardson 90, which gave Mr. Lee 251 majority,
and this was rejected by the Democratic county commissioners and
utterly cast away.

Reversing this process of gross and palpable fraud, even the Demo-
cratic managers, whose business it was to see justice done, admitted and
certified to a majority for Mr. Lee of 251, and remembering that 48 honest
votes given to Mr. Lee were drawn out and 48 votes not honestly given
to Mr. Richardson were left in the box, thus taking from Lee 48 votes
which belonged to him and adding to Mr. Richardson's vote 48 votes
which did not belong to him, Mr. Lee's vote is swelled to 341 plus 48,
which makes 389, and Mr. Richardson's is 90 less 48, which gives him
42 votes ; and this clearly gives Mr. Lee at this poll a majority of 347
votes, instead of 251.

Lower Waccamaw.

The poll at this precinct was rejected for the same flimsy reason.
There is no dispute between the parties as to the vote actually cast.
Two of the managers were Democrats and one Republican (Record, page
824). An honest election was had here ; the vote was 250 for Lee and
45 for Richardson. This fact is utterly unquestioned. This gave Lee
205 majority. Let us in conscience so count it.

Carver's Bay.

The managers here were all Democrats (Record, 820). The poll-list,
kept by these Democratic managers and by the Republican supervisor,
both agree that only 283 votes were cast ; 377 votes were found in the
box when the same was opened. (Record, p. 820, R. B. Anderson.)
The box was in the hands and under the control of the Democratic
managers. A fraud gross and palpable was perpetrated 94 fraudulent
votes were found in the box. In one ballot twenty-three Democratic
ballots were found inclosed, and also "tissue ballots" were found pro-
fessing to be Republican ballots, by having the honored names of Gar-

LEE VS RICHARDSON. 529

field and Arthur at the top ; arid then a lot of names of persons as electors
who were not running-; and then the name of Mr. Richardson as the
Republican (?) candidate for Congress. Within one ballot alone 31 of
these doubly fraudulent ballots were found. These 23 Democratic and
31 " so-called" Republican tissue ballots, but all having the name of
Mr. Richardson as a candidate, and the one which inclosed the 23, were
destroyed : thus 55 fraudulent votes out of 94 fraudulent votes were
destroyed by the managers. But 39 fraudulent votes were returned to
the box ; of this number was drawn out 19 Republican and 20 Demo-
cratic. The drawing out was as fair as fair could be. And the man-
agers returned 183 for Richardson and 97 for Lee. (R. B. Anderson,
Record, pp. 820-'21.) This gave Richardson 86 majority. But the facts
show the fraud was a Democratic fraud. The fraud was in favor of
31 1 . Richardson. Xineteeu Republican votes were drawn out which were
honestly cast. In their place 19 fraudulent votes were left in the box
and counted for Mr. Richardson. He got 19 more votes than he was
entitled to. and Lee 19 less. The difference is 38. Subtract this from
Richardson's certified majority of 86 ; lessen it by 38, and his true ma-
jority was only 48.

And this would give a difference of 38 votes in favor of Lee over that
certified to by the managers.

Choppee.

This poll was thrown out for the same alleged reason above set
forth as in the case of Sampit. (Record, p. 797.) The undisputed vote
cast was 238. That number of ballots were found in the box. The
managers were all Democrats, but they show in this return that the
honest vote cast was 197 for Lee, and for Mr. Richardson 41. This
gives a majority for Lee of 156. (E. J. Greggs, Record, p. 823.) This
result is undisputed ; it should be so counted.

Peedee.

Here the managers were all Democrats. Their returns and the United
States supervisors testify to the same result. The vote stood 469 for
Lee and 33 for Richardson, giving a majority for Lee of 436. This is not
questioned or disputed. It was thrown out by the county commissioners
for the same technical reason as Choppee and the balance. (Record,
p. 797.) We cannot so report; because the messenger was not au-
thorized to carry up the returns in writing we cannot reject the entire
poll!

Brown's Ferry or Black River Precinct.

At this precinct it appears to be admitted that a reasonably fair elec-
tion was held. That is, every voter was permitted to vote as he chose.
The poll-list of the managers showed (Record, p. 800) that 296 votes
were cast, and the names of the voters are given. But when the box
was opened 602 ballots were found in that box. All the managers were
Democrats. (See Record, p. 790-'2.) To show how these ballots were
found in the box, the testimony of Joseph Dunmore, a United States
supervisor, is sufficient. We quote (Record, p. 794) :

Q. Where in the box. in what quantities, ami in what condition were these tickets
found? A. About the middle of the box, inside of a larger Democratic ticket, in
quantities of 10 or I'-i.

Q. How many ot these packages were found together in the box? A. Five or six.

H. Mis. 35 34

530

DIGEST OF ELECTION CASES.

He also swears that "at the corner bottom of the box a large number
of these tickets were found." )'t appears that the voters were very much
excited, as we think American citizens ought to have been

When they found that the managers attempted to throw the ballots found folded
together back into the box and count them. (Record, p. 790.)

The witness Dunmore being asked why he objected to counting these
five or six parcels of fraudulent tickets, answered, " Because they refused
to destroy all but one (as the luw required), but attempted to put them
back in the box and count them." Isaiah James McCottru (Record, p.
810) swears that 201 Eepublican votes were cast and 95 Democratic. In
this he is corroborated by Joseph Duumore, the United States super-
visor. A great excitement naturally prevailed. A monstrous fraud
was about to be perpetrated before their eyes. Joseph Dunmore swears,
page 792, that Mr. Montgomery, one of the managers, suggested "to
throw the whole box in the fire." In this he showed his thorough im-
partiality (I), the Republicans being largely in the majority. The Dem-
ocratic United States supervisor said, "No; throw them in Black River,
as it was a fraud, and he would not stand and see them counted."
All the tickets were placed back in the box, tissue ballots and all, and
the box locked and delivered to Joseph Dunmore (Record, 792), who
next day offered the box and the contents to J. W. Tarbox, the chairman
of the county commissioners of election, who would not receive it. The
said box was by Dunmore transmitted to the Committee on Elections,
and is now in the custody of the clerk of said committee. But as the
names on the poll-list are printed in the Record, page 800, and the num-
ber not disputed, and as the proof is clear that 95 were Democratic votes
and 201 Republican, and as "nothing short of the impossibility of ascer-
taining for whom the majority of the votes were given ought to vacate
an election " (McCrary on Elections, 230), we are constrained to count 95
votes for Richardson and 201 for Lee. since the witness McCottru
swears he observed the Republican ticket voted (page 810) bore the
name of Samuel Lee for Congress, and this would give Mr. Lee 106 ma-
jority at this poll.

The result of this analysis shows that in Georgetown County, by the
record evidence, enormous frauds were perpetrated; that looking to the
uncontradicted evidence as to the votes actually cast by the legal voters,
the vote honestly cast was as follows:

Vote of Georgetown County.

Precincts.

As returned to the State
canvassers.

As corrected by the com
mittee.

Richardson.

Lee.

Richardson.

Lee.

Santee

23
158
42
45
164
41
33

476
-'74
389
250
116
197
469-

Sampit

Tipper Waccamaw

Lower Waccamaw .

Carver's Bay

Choppee

Pee Dee

Grier's, no poll opened

Brown's Ferry, or Black River

95
190

201
729

Court-house precinct

302

617

Lee's majority

791 i 3,101

2,310

LEE VS. RICHARDSON. 531

This gives a gross majority ill Georgetown County to Lee of 2,310, in
place of 315, as allowed by the board of State canvassers, and deduct-
ing the admitted majority from the real majority of Mr. Lee, shows be-
yond cavil that Mr. Lee was defrauded out of 1,995 honest votes in
Georgetown County.

SUMTER COUNTY.

The board of State canvassers certify that Mr. Lee received in this
county 1,789 votes, and Mr. Richardson 2,560 votes (see Eecord, p.
228). We analyze the vote of this county as follows :

Sumter Precinct No. 1. '

Mr. Richardson, the contestee, in his answer to the notice of contest,
on page 4 of the Eecord, uses the following language :

As to votes cast at Sumter precinct No. 1, I waive the question as to whether the
same were legally or illegally refused and excluded by the commissioners, and agree
that the same may be counted.

The proof shows that 1,499 votes were cast for Samuel Lee, and 9
votes for John S. Richardson. (Record, pp. 44 and 245.) Since Mr.
Richardson admits this vote to be correct, we may safely count it that
way. This gives Mr. Lee a clear majority at Sumter precinct No. 1 of
1.490 votes.

The honesty of the contestee with regard to this precinct is certainly
worthy of commendation ; but what shall be said of, or what language
can characterize, the partisan malignity of the commissioners who ut-
terly ignored that poll ?

Sumter Precinct No. 2.

At this poll, which was in the same town as Sumter precinct No. l r
and about 100 yards distant, the total vote cast for Richardson was 398 ;
the vote cast for Lee was 91, making a total of 489 votes.

It appears clearly by the evidence that a great many voters tried ta
vote there who could not and did not. (See Record, pp. 29, 31, 38,.
41, 256, 258, 259, 52, 53, and 54.) It must be apparent to the dullest
capacity that if 1,508 honest votes, as Mr. Richardson admits, could be
cast at Sumter No. 1 on the day of the election, the same number of
votes might have been cast within the same hours at Sumter No. 2.
The record shows that at Statesburg precinct, a neighboring voting
place, no election was held. The managers at Statesburg were all Dem-
ocrats ; necessarily the voters of that precinct had to go to a neighbor-
ing precinct or not vote at all. They went to Sumter, and A. John-
son Andrews swears (see p. 42), " I saw about 400 to 500 Republicans
leave town that day without voting." Other witnesses prove that Re-
publican voters were prevented from going to that ballot-box. Men and
boys stood in solid array in front of that ballot-box. Democrats had
free access to the poll. One witness, B. Spears (see p. 30), swears as
follows: " Every time I started I was pushed right back, but that col-
ored men who had Democratic votes in their hands were given free
passage."

Thomas R. Harney (Record, p. 32) swears that it was impossible for
a colored Republican to vote at Sumter No. 2

Because the stairway leading to the poll \vas crowded with white men and boys,

532 DIGEST OF ELECTION CASES.

and when I attempted to go up I would be squeezed and mashed so that I would be
injured by trying to get up there. I made three attempts to get up there, bur t'.-iiled
ach time.

C. J. Croghan swears (see p. 39) :

Occasionally they let one in after sticking him with pins, abusing hiui, and cursing
Mm, and telling him this was no damned Republican poll.

Alfred Davis (Record, p. 52) swears he attempted to vote. " I was
prevented as I started up the steps ; I was struck with knives every-
where." To the same effect is the testimony of Aucrum Slater, Ransom
Dicks, Monday Bronsou, and others (see pp. 46 to 54). From all this
testimony it must be clear that no fair election was held at Sumter No.
2. The frauds which were committed were in favor of Mr. Richardson.
Allowing them to stand, we pass to

Lynchburg Precinct.

The State board of canvassers report that Mr. Lee received 181 votes
and Mr. Richardson 319 votes, making a total of 500 votes. (See Record,
p. 227.) But 107 more ballots were found in the box than were act-
ually cast by the voters. (See Record, pp. 25 and 27 James Levy and
R. A. Wilson.) All the managers were Democrats. By the law of
South Carolina, 107 ballots were drawn from the box and destroyed,
and then the 500 ballots remaining were counted. This would have
been exactly just if the 107 fraudulent ballots had been withdrawn, but
they were not. The result, as stated by the board of State canvassers,
was, as we have already seen, 181 for Mr. Lee and 319 for Mr. Richard-
son. But since it is evident that a gross fraud was perpetrated here, as
in other precincts, by the ballot-box being stuffed, and since all the
managers whose duty it was to see that the box was empty at the out-
set, and to see that a fair election was held, were the political friends
of Mr. Richardson, it is difficult, not to say impossible, to believe that
the fraud was perpetrated in favor of Mr. Lee.

We turn, therefore, to the positive testimony, and on page 61 of the
Record a list is found of those who exhibited Republican ballots, and
who voted the same.

This list shows that 242 votes were cast for Mr. Lee at Lyuchburg
precinct, and since the report of the board of State canvassers shows
that 500 votes were cast for candidates for Congress, the true vote as
actually cast was for Lee 242 and for Richardson 258, in place of for
Lee 181 and for Richardson 319.

By the official returns Richardson received 138 majority ; but in truth
and in fact he received a majority of 16 votes only. (See testimony of
James Levy, Record, pp. 25 and 61 ; also R. A. Wilson, p. 27.)

Now, it is clear that the 107 extra ballots found in the box were fraud-
ulent. They must have been, for there were no voters behind them.
Were they for Mr. Lee I The record is silent as to who they were for.

R. A. Wilson, United States supervisor, page 28, swears the mana-
gers would not let him see the tickets they destroyed. In this he is
corroborated by J. A. Rhame. (Record, 671.)

May smile Precinct.

At this precinct the State board of canvassers give to Mr. Lee 257
votes and to Mr. Richardson 274 votes. The total vote would thus be
531.

But the poll-list showed that 539 votes were cast, and there was found

LEE VS. RICHARDSON. 533

iu the box 760 ballots. It is thus manifest that there was a fraud per-
petrated by stuffing the ballot-box with 221 fraudulent ballots. They
ic ere Democratic hallots. V. S. Johnson swears (Record, p. 19), that
in not less than ten instances " there were quite a number of Demo-
cratic tickets folded together," and " the general appearance was that
they were laid iu there before the voting commenced, and had not been
put through the hole in the lid " ; and also swears that Mr. Wilson, one
of the managers and the one who counted the tickets, stated that " the
tickets were hatching in the box." Johnson also swears that he saw
the tickets counted, and no Democratic tickets were pasted upon the
checked-backed tickets voted by the Republicans, and all the managers
were Democrats ; and Mr. Cooper, one of the Democratic managers, de-
clared that the bundle of Democratic tickets u could not have been voted
iu the box and have to be torn up." Mr. Johnson further swears that
" there was one bundle which could not go through the hole in the lid."
H. H. Wilson swears (p. 21) that he kept a book, which he produced,
in which the names of the voters who voted the Eepublican ticket at
that poll on that day were written down, and that 402 Republican votes
were cast, upon which appeared the name of Samuel Lee for Congress.
The names of all these voters are found in the Record on page 58 and
following, as sworn to by the witness Wilson. Wilson swears he saw
each of these persons deposit their tickets. (See Record, p. 22.) True
it is that E. M. Cooper, one of the Democratic managers, swears r
on page 698, that in his judgment Wilson could not know this fact, but
it is evident that 221 fraudulent ballots were found in the box. They
could not have been put through the small hole in the lid of the box.
They must have been placed in the box before the poll was opened.
They icere all Democratic tickets. It is impossible to believe for an in-
stant that it was a Republican fraud, since the whole advantage was in
favor of Mr. Richardson and the Democratic party. It is clear as dem-
onstration can be that it was a Democratic fraud. Tinder the law of
South Carolina a number of ballots equal to the fraudulent Democratic
excess was withdrawn from the box. It would have been honest if all
of the fraudulent Democratic votes had been withdrawn, but the record
shows they were not. Instead of this, 147 honest Republican votes
and 74 dishonest Democratic votes were withdrawn. Since 147 honest
Republican votes were withdrawn and destroyed, and 147 dishonest and
fraudulent Democratic votes were left in the box and were dishonestly
counted for Mr. Richardson, the fraud consisted in giving to Mr. Rich-
ardson 147 more votes than were actually cast for him and taking away
147 votes which were honestly cast for Mr. Lee.

We must correct the result as declared by the board of State can-
vassers by deducting from Mr. Richardson's certified vote 147 votes,
and by adding to Mr. Lee's certified vote 147 votes. This will deduct
294 votes from Mr. Richardson's certified majority, and shows that the
true vote at the Maysville precinct was 404 votes for Lee and 127 for
Richardson, in place of 257 for Lee and 274 for Richardson. This shows
that Mr. Lee's true majority at Maysville precinct was 277 in place of a
majority of 17 votes for Richardson, as certified by the board of State
canvassers.

Concord Precinct.

At this precinct it is claimed by Mr. Richardson, and conceded by
Mr. Lee, that evey honest vote cast was cast for Mr. Richardson. One
hundred and fifty- two honest Democratic votes were cast at this poll.

534 DIGEST OF ELECTION CASES.

The Eepublicans refused to vote, because they believed the ballot-box
was already stuffed before the poll was opened. All who voted there
voted the Democratic ticket. This is undeniable. (See Eecord, p. 54.)
But, strange to say, when the box was opened a fraudulent excess
of 41 ballots was found in the box. They were all Democratic tickets.
As no Eepublicans voted, and not a single Eepublican ballot was found
in the box, it would seem to be plain that this fraud was a Democratic
fraud. The excess was properly rejected, but Concord precinct may
fairly be held forth as a specimen of the frauds perpetrated in this dis-
trict. The managers were all Democrats. Democrats alone voted.
One of the managers, J. D. Wilder, testifies (Eecord, p. G92) that :

The Republicans refused to vote, and that an excess of 41 ballots were found in the
box when the same was opened.

He further swears that he

Did not see a single person who was recognized as a Republican voter at that poll.

The only explanation of the singular facts which stand out clear and
apparent at Concord precinct poll is that a scheme had been formed and
organized before the election canie off to deliberately swindle Mr. Lee
and the Eepublican party in the election in that district at that time.
It is the only explanation a reasonable mind can offer or suggest why
such a monstrous and patent fraud was perpetrated. And here we
leave the consideration of the Concord precinct, with the consciousness
of having exposed a fraud as novel as it is monstrous.

Privateer Precinct.

At this precinct a comparatively fair election was held. The man-
agers were all Democrats (Eecord, p. 45). Seventeen Eepublieaus only
voted there, and 127 Democrats. But when the box was opened there
was an excess of 120 ballots. That they were fraudulent no man can
deny, since there were no voters to cast them. Under the law of South
Carolina these 1-0 votes in excess had to be withdrawn from the ballot-
box. They were Democratic votes. In withdrawing 120 votes, 10 of
the honest 17 Eepublican votes that had been cast were withdrawn,
and only 110 of the 120 dishonest, corrupt, and fraudulent Democratic
votes were withdrawn. Believing that honest votes only ought to be
counted, we must diminish the vote of Mr. Eichardsou by 10 votes,
which are counted for him in his certified majority, but which were not
cast for him by voters, and increase Mr. Lee's certified vote of 7 to the
17 votes actually cast for him, and this makes a difference of 20 votes
which must be deducted in truth and all fairness from Mr. Eichardsou's
certified majority. This makes Mr. Eichardson's true vote 127 votes,
in place of 137 votes. This result it would seem to be impossible to
dispute.

Shiloh Precinct.

By the vote as declared by the State board of canvassers at Shiloh
precinct, Mr. Lee received 143 votes, and Mr. Eichardson 180 votes.
This gives to Mr. Eichardson a majority of 37 votes, but there was
found an excess of 168 votes in the box, This was a palpable and glar-
ing fraud. But it appears by the testimony of W. E. Boykin, page 28,
that at least 189 votes were Eepublicau, " and Samuel Lee's name was
on every one of .them"; and that 134 Democratic votes were cast, mak-
ing a total of 323 votes. But this gives to Mr. Lee a majority of 55

LEE VS. RICHARDSON. 535

votes instead of a majority of 37 for Richardson ; and so Mr. Richard-
son's assumed majority mast be decreased by 92 votes. (See also Rec-
ord, p. 26.)

Rafting Creek Precinct.

Here, as usual, all the managers appointed by the county commis-
sioners were Democrats. One of them, however, Mr. McLeod, did not
serve by reason of a broken arm. (See Record, p. 34.) Prince A.
James, a colored man, was chosen fey the other two managers, both
Democrats, to fill his place. (See Record, p. 15.) A fair election ap-
pears to have been held, by all the testimony given in evidence. The
result was that for Lee were cast 313 votes, and for Richardson, 51
votes. This gave to Mr. Lee a majority of 262 votes. (See Record, pp.
33 and 249.)

The returns and ballot-box were placed by the managers in the hands
of Prince A. James to be delivered to the county commissioners. But
on the pretext that James had not been appointed by them as one of
the managers, these sternly righteous commissioners refused to count
the vote at all, and threw out the entire poll ! (See testimony of D.
J. Winn, pp. 7 and 8, and E. P. Ricker, pp. 47 and 48.)

Your committee believe that an immense majority of all honest Ameri-
cans would say at once, since no one questioned the integrity of the elec-
tion at Rafting Greek poll, Mr. Lee's majority ought to be counted for
him. Your committee feel that they are compelled so to count the vote ;
and Mr. Lee's majority of the honest votes, honestly cast, honestly
counted, honestly returned, but rejected by the county commissioners,
was 2G2 votes.

Carter's Crossing Precinct.

At this precinct, as in all the precincts of the county, the managers
appointed by the county commissioners were all Democrats. (See Rec-
ord, pp. 8 and 47.)

At this poll Mr. Lee received 4'7 votes, Mr. Richardson received 29
votes. This would give a clear majority to Mr. Lee of 378 votes. (See
Record, pp. 23, 249.)

Dr. Henry Stucky, one of the Democratic managers, swears (p. 18.)
that the election was fairly held; that the two supervisors, one a Re-
publican and the other a Democrat, were present all the time ; that the
managers adjourned once for breakfast and once for dinner, about
twenty minutes (Record, pages 24, 18), and left the box in the custo y
of these two supervisors, one a Republican and the other a Democrat,

J. Nelson Carter, one of the two United States supervisors, swears
(Record, p. 23) that while the managers were absent no one touched
the ballot-box. The poll-list kept by the Democratic managers and the
two United States supervisors exactly agreed. (See Record, pp. 23
and 249.) But because of the adjournment by the Democratic managers
for breakfast and dinner, E. P. Ricker, one of the county commissioners,
swears, on page 48 of the Record, that " Carter's Crossing precinct was
rejected on the ground that the managers adjourned for breakfast and
dinner"! Since no witness controverts the facts as stated here, your
committee is compelled to correct and count this poll and give to Mr. Lee
407 votes and to Mr. Richardson 29 votes, thus counting for Mr. Lee a
majority of 378 votes at Carter's Crossing poll.

We summarize, so far as Sumter County is concerned: The State

536

DIGEST OF ELECTION CASES.

board of canvassers (Eecord, p. 228) certify arid give to J. S. Richard-
son 2,560 votes and to Samuel Lee 1,789 votes. This would give to Mr.
Richardson a majority of 771 votes, and this majority goes to make up
Mr. Richardson's majority in the district of 8,468 votes.

But since your committee have analyzed the vote of this county of
Sumter, so far as all the disputed precincts are concerned, they find
and summarize as follows :

Vote of Sumter County.

Precincts.

As returned to the
State canvassers.

As corrected and
found by the com-
mittee to be the
actual vote as cast.

Eichardson.

Lee.

Kichardson.

Lee.

Bishop v ille

353
319
127
180
99
190
274
224
79
28
137
152
398

9
181
40
143
233
232
257
181
346
69
7

353
266

127
184

99
190
137
224

79
28
127
l.VJ
398

242
40
189
233
232
404
181
346
69
17

Shiloh

Swimming Pens

Wedgefield

Mav sville

Privateer

Concord

Sumter No. 2

Add three polls not included in the returns made to State
canvassers :
Sumter Xo. 1

2,560

1,789

2,306

9
51
29

2, 054

1, 499
313
407

Ra.ftin ' Creek

Carter's Crossin"

Lee's majority

2, 395 4. 272

1,877

This gives a majority in Sumter County to Lee of 1,877 votes, in place
of 771 majority for Eichardson, as accorded him by the State board of
canvassers, and shows conclusively the extent of the frauds perpetrated.

WILLIAMSBURG COUNTY.

The secretary of state counts, in his report, the county of Williams-
burg as follows :

For Mr. Lee 1,585 votes and for Mr. Richardson 2,084 votes. This
would give to Mr. Richardson a majority of 499 votes. But on page
228 of the Record he certifies that "no managers' returns from any
precinct in Williamsburg County are on file in his office;" that " none
were sent by the county canvassers of said county."

But the positive statute law of South Carolina is that

After the final adjournment of the board of county canvassers, and within the
time prescribed by this act, the chairman of said board shall forward, addressed to
the governor and secretary of state, by a messenger, the returns, poll-lists, and all
papers appertaining to the election. (See Stat. of South Carolina, sec. 4, act of 1^7-2,
vol. 15, p. 171.)

It appears that three of the precincts of this county, to wit, Gonrdin's r
Midway, and Salter's, were thrown out, and not counted by the board
of county commissioners. But it appears by the testimony of Capers

LEE VS. RICHARDSON. 537

King, who was the Democratic clerk of the Democratic board of county
commissioners (.Record, p. 498), that the vote for member of Congress,
as returned by the managers of election for the precincts of Gourdin's,.
Midway, and Baiter's, and who were all Democrats, was as follows :

Lee. Richardson.

Gotirdin's 217 30

Midway 155 72

Salter's 426 49

Total 798 151

Majority for Lee 647

But the same witness swears, on Record, p. 499, that

The board of election commissioners adjudged the votes cast at Gourdin's, Mid-
way, and Salter's to be illegal, and in the exercise of judicial powers as election commis-
sioners did not count the same.

Since the supreme court of South Carolina, politically opposed to
Mr. Lee, have solemnly decided (Ex parte Mackey ct al. vs. Carwile et
al.) that the said county commissioners have no judicial powers in
counting the vote for a Representative in Congress, your committee is
constrained to say that the House of Representatives is not bound by
their attempt to exercise judicial functions.

The objections urged against the validity of these three polls, as the
record shows, were not because of frauds perpetrated, but of informali-
ties on the part of the managers holding the election, all of whom were
politically opposed to Mr. Lee. (See Record, pp. 498 and 499.) Your
committee here remark, with regard to the managers who held the elec-
tion, that the presumption always is that a public officer has legally dis-
charged his duty until the contrary appears. They hold, as did the
court in Biddle and Richard vs. Wing (Cl. and H., 504), that

Nothing short of the impossibility of ascertaining for whom the majority of voles
were given ought to vacate an election, especially if by such decision the people must,
on account of their distant and dispersed situation, necessarily go unrepresented for a
long period of time. (See McCrary, sec. 304.)

Your committee believe and have acted upon the principle that

Questions affecting the purity of elections are in this country of vital importance.
Upon them hangs the experiment of self-government. The problem is to secure first
to the voter a free, untrammeled vote, and secondly a correct record and return of the
vote. But these rules are only means; the end is the freedom and purity of the elec-
tion. To hold these rules all mandatory and essential to a valid election is to sub-
ordinate sulistauce to form the end to the means. (McCrary, sec. 200.)

The chief objection to Gourdin's poll seems to be based on the testi-
mony of X. W. Badget (Record, page 717), who swears that he lived
about 50 yards from where the votes were cast. That he went to vote
at half past 5 o'clock p. m. and found the poll closed, and was thereby
prevented from voting. He gives the names of four others who were
there at the same time, and were likewise prevented from voting. He
also swears th;it two of these persons lived within 75 yards of the polls,,
and the others 200 yards away. But A. M. Gordon, one of the mana-
gers, who swears he was a Democrat, also swears that the polls were
closed at Gourdin's precinct at 6 o'clock p. in. by his watch. Six o'clock
was the legal hour for closing the polls. Since Mr. Lee received 217
votes and Mr. Richardson only 30 votes at this poll, and in view of the
fact that all these five voters lived so near the poll, and the question
at what time the poll was closed seems to be fixed by the watch of the
Democratic manager, your committee cannot agree that Mr. Lee's ma-
jority of 187 votes should be thrown away by the rejection of this poll.

538 DIGEST OF ELECTION CASES.

They therefore count the votes at Gourdiu's as 217 for Mr. Lee and 30
for Mr. Richardson, as reported by the managers who held the election,
and who were politically opposed to Mr. Lee.

Midway.

The vote of this precinct was also rejected by the county commission-
ers. Levy Mouzon, one of the tTuited States supervisors, page 492,
swears that the managers were all Democrats ; that he kept a poll-list,
as did the managers, and both lists agreed. As an exhibit to his depo-
sition he furnishes (Record, p. 508) the report signed by himself and
J. M. Kennedy, the Democratic supervisor, by which it appears that
Mr. Lee received 155 and Mr. Richardson 72 votes. The only objection
to this poll is that the managers, all politically opposed to Mr. Lee,
closed the polls at too early an hour.

J. J. Morris, one of these managers, swears that this was done on the
suggestion of Mr. Mouzon (Record, p. 717), while Mr. Mouzon swears
(Record, p. 493) that it was done "at the suggestion of some of the
managers." Tour committee thinks that even if Mouzou gave bad ad-
vice the managers were not bound to take it, and since the coutestee
does not even pretend that any one was deprived of voting at this poll
by reason of its too early closing, your committee cannot agree on such
a technicality that the poll should be thrown out and Mr. Lee deprived
of his majority of 83 votes. It is true that one witness, R. K. Hurst,
swears (Record, p. 717) that Henry Williams, a colored man, told him
he intended to vote the Democratic ticket, but after Hurst voted
and left he voted the other way. As Williams was not called, and the
testimony is purely hearsay, your committee cannot agree that this poll
should be thrown out.

Salters Precinct.

At Salter's precinct the managers, all Democrats, returned for Sam-
uel Lee 426 votes and for J. S. Richardson 49 votes. This gave Mr.
Lee a majority of 377 votes. (See Record, page 498.)

J. E. Singletary, United States supervisor, swears that he was pres-
ent and saw the polls were opened from 6 o'clock a. m. to 6 o'clock p.
in. ; that there was no disturbance during the voting ; that he kept a
poll-list, and that it agreed with a poll list kept by the managers. (Rec-
ord, p. 476.)

Julius B. Graysou, one of the Democratic managers, swears that he
and one B. O. Bristow were the only managers who held the election ;
that both served till a quarter of an hour before closing the polls, when
Bristow became sick and had to lie down (Record, p. 708). On cross-
examination he swears that the election was tolerably quiet during the
day till about 6 o'clock ; that he closed the poll and refused to count
the votes

Because I was left alone. "I then insisted upon carrying it to my rooms, to re-
main until Bristow was able to attend to his duties, and the negroes objected to my
taking away the box or leaving it till they Avere counted.

It seems those negroes stuck by Mr. Grayson.

Till I got Bristow out of bed; we then took the box into a little house and counted
the votes ; we then made our report, and on the following day I brought the box over
to Kingstree. (Record, p. 708.)

On cross-examination he swears that the box was always in his sight

LEE VS. RICHARDSON. 539

until he went into a room to get Bristow to come out and assist him hi
counting the votes ; during that time he left the box in the custody of
the United States supervisors Siugletary, and one Walter, McCullough.
They would not allow him to take the box into the house, unless they
could go in too. and so he left the box with them, but the box was
locked and sealed " with a strip of paper and sealing wax," and he,
Graysou, had the key, and when he and Bristow came out it was in the
same condition as when he left it. (Record, p. 700.) Since there is
uo pretense that the election was not fair, since the box was not tam-
pered with, and the result of the count was declared by the Democratic
managers, who held the election, your committee is constrained to count
this precinct just as the managers did, that is, 426 for Lee and 49 for
Richardson, giving Lee a majority of 377 votes.

Black Ningo.

At this precinct there were returned for Lee 110 votes and for Rich-
ardson 81 votes making 191 votes ; and giving Lee a majority of 39
votes. (See Eecord, p. 498.) And this is corroborated by the testi-
mony of Isaac I. White, who swears that 191 votes were cast, and 110
counted for Mr. Lee, but that this was after 12 votes in excess of the
poll-list had been drawn out. These 12 votes were fraudulent votes.
He further swears that he was a United States supervisor ; that he kept
a little book to record the names ; that the Republicans voted 6 voters
at a time ; that they came with open votes for him to see, and folded
them up and voted them ; that he when present when the votes were
counted.

Q. Were any tickets found iu the box compactly folded together? A. There were.
Q What kind ? A. All Democratic tickets.

He also swears that there was an excess of 12 votes.

Q. Whose name was on the tickets for member of Congress so drawn out ? A.
Ten for Samuel Lee and two for Richardson.

He further swears that the managers were Democrats ; that 14 Dem-
ocratic ballots were found with one or more Democratic ballots folded
within them : that no Republican ballots were found, and after destroy-
ing these 14 ballots there were still 12 ballots in excess of the poll-list.
On page 500 of Record he gives a list of 120 names who voted for Lee.

Since his testimony is not traversed, the inevitable result is that
Lee's vote should be increased 10, giving him 120, and Richardson de-
creased 10', giving him but 71, as the true result of the honest vote cast
at this poll.

Cedar Swamp Precinct.

By the returns of the managers of this precinct Mr. Lee received 8
votes and Mr. Richardson 107 votes.

The managers were all Democrats. The regular place of holding the
election was Grayson's store. The election was held at a church three-
fourths of a mile distant. J. T. Wilson, a United States supervisor,
was at Grayson's as early as 2 o'clock in the morning. Before the polls
were opened he found out that the place of holding the election had
been removed to the church, but he swears he arrived there 17 minutes
by the watch before 6 o'clock a. in. The polls were already opened. He
remained there till after the close of the polls ; saw the box opened and
the ballots counted.

540 DIGEST OF ELECTION CASES.

Q. When the box 'was opened were there any ballots found with one or more ballots
folded therein? A. Yes, sir.

Q. How many and what kind ? A. Six or seven bunches. Democratic ballots, all
aggregating 40.

He farther swears (Record, p. 486) that these 40 ballots were (16-
stroyecl by the managers, but that 143 votes still remained iu the box
in excess of those who voted aiid whose names were on the poll-list
(Record, p. 480), which showed that only 115 votes were cast at that
poll. Under the law of South Carolina 143 ballots had to be with-
drawn to bring down the number left in the box to correspond with the
number of votes actually cast.

The majority at this poll was honestly Democratic. The managers
were all Democrats !

The fraudulent votes found in the box were Democratic. It was a
Democratic fraud. And in the withdrawal 121 Democratic votes were
withdrawn and 22 Eepublican. Wilson swears that on the 22 Repub-
lican ballots withdrawn was Lee's name as a candidate for Congress.
Those 22 votes should be counted for him, because they were honestly
cast for him.

Having been withdrawn, 22 fraudulent votes were left in the box in
their place and counted for Richardson, and his vote should be dimin-
ished by the same number, since no witness contradicts the testimony
of Wilson. Adding 22 votes to the 8 counted for Lee will give him 30
votes, and subtracting the 22 fraudulent votes which were not cast for
Richardson from the 107 counted for him will give him 85 votes.

Greelymlle Precinct.

At this precinct the managers returned for Mr. Lee 118 votes and
for Mr. Richardson 117, giving Lee a majority of 1.

All the managers were Democrats. (Record, page 495.)

F. J. Felix, United States supervisor, was thereat the opening of the
polls and staid till the ballots were counted. He swears that Samuel
Lee received 141 votes and J. S. Richardson 95. (See Record, pp.
495 and 503.) He also swears that there was an excess of 30 more bal-
lots in the box than there were names on the poll-list. In this he is
corroborated by W. J. Ferrell, Mr. Richardson's witness, who swears to
the same fact, and who also swears that the election was peaceable.
(Record, p. 704.) Both witnesses agree that 30 ballots were withdrawn
from the box by the Democratic managers.

Felix swears, and is not contradicted, that 25 of the ballots with-
drawn were Republican, and had Lee's name on them for member of
Congress, and 5 were Richardson's tickets. He also states (Record,
p. 496) that one Jiin Lescone was detected iu the act of voting two
Democratic tickets.

It is evident that the fraud perpetrated at this poll was a Democratic
fraud ; that 25 honest votes cast for Lee were withdrawn, and 5 votes
cast for Richardson to equal the 30 fraudulent votes stuffed into the
box, which were all Richardson's tickets. Thus Mr. Lee's vote was
decreased 25 and Richardson's vote was increased 25 by this fraudu-
lent stuffing of the ballot-box. Your committee purged this box by de-
ducting 25 votes from Richardson and adding 25 votes to Lee, and this
would give at Greelyville poll a majority of 51 for Lee.

Kingstree Precinct.
The whole number of votes counted at this poll by the managers of

LEE VS. RICHARDSON. 541

election for member of Congress was 897, of which they certify that
Samuel Lee received 592 and John S. Eichardson 305. (Record, p.
604.)

This gave Lee a inajoriiy ui -87. But, as usual, there was an excess
of 110 ballots found in the box. One Republican ballot was found with
one or more Republican ballots within the same, while 7 Democratic
ballots were found with one or more Democratic ballots within the same.

The number of ballots drawn out of the ballot-box and destroyed by
the managers by reason of excess over the poll-list was 110: 74 of these
bore the names of the Republican candidates and 36 bore the names of
the Democratic candidates. It is evident a gross fraud was committed.
It is equally evident that Mr. Lee was cheated, but your committee is
unable to say to what extent, and therefore do not undertake to purge
this poll.

Muddy Greek Precinct.

At this poll, by the returns, Mr. Richardson received 177 votes, and
Mr. Lee none. S. G. Graham, a United States supervisor, swears
(Record, p. 490) that the election had theretofore been held at Ard's
store ; that this was the old voting place. The managers opened the
poll at a'school-house some 200 yards distant. In this he is corrobo-
rated by W. H. Harmon, a witness for Mr. Richardson, and a Democrat.
(Record, p. 720.) Graham swears (Record, p. 488) that he showed his
commission to the managers and asked permission to act as United
States supervisor to the election ; that

Henry Harmon, one of the managers, drew Ms revolver on me and said my authority
\vn.s no account ; he put his hand in his pocket, drew out his revolver, and presented
it to me in a threatening manner.

He also states that Mr. Huggins, the other manager, when Harmon
drew his pistol on him, went off, and Harmon said nothing, but shook
his head.

Huggins and Harmon both swear that Graham's statement is false,
and Huggins swears that the Republicans did not vote at all; they
went off. He also swears there were about 35 or 40 negroes in the
crowd.

Your committee leave these meager facts without further comment.

Prospect precinct.

At this precinct the managers' returns gave Samuel Lee 120 votes
and John Kichardson 111 votes ; Lee's majority, 9 votes.
All the managers were Democrats. (Record, p. 468.)
As usual, there was an excess of ballots in the box over the names
on the poll-list here to the number of 31. (John Roumoud, (Record, p.
46G.) He also swears that the Republican tickets were on much thicker
paper and could be easily told ; (Record, p. 468) ; that on drawing
out the excess 29 Republican and 2 Democratic ballots were with-
drawn and destroyed. (Record, p. 466.) In this he is corroborated by
A. A. Brown, one of the Democratic managers, who swears that he with-
drew the excess from the box. Asked if he could tell a Republican
from a Democratic ticket in so withdrawing them, he answered, " I could
not say positively."

Q. Was there not enough difference so that if you had been disposed you could
have distinguished between them ? A. There was.

542

DIGEST OF ELECTION CASES.

Asked whether the excess was drawn out fairly, or were Republican
ballots fraudulently fished out, he answered, "They were fairly drawn
out according to law." He also swore, " I claim to be a true Democrat."
(See Eecord, p. 721.) Your committee thinks that little comment is
necessary upon this testimony.

It is evident a fraud was perpetrated by the stuffing of the ballot-
box; it is equally evident that it was a fraud by which 29 votes hon-
estly cast for Mr. Lee were withdrawn and destroyed ; that Mr. Lee's
vote should be increased by 29 votes, which were honestly cast for him
but were not counted by the managers; that Mr. Richardson's vote
should be decreased by the same number of votes which the managers
counted for him but which were not cast for him by the legal voters.

Making this correction, and it is evident that Mr. Lee received from
the voters' hands 149 votes, and Mr. Richardson, in like manner, 82
votes. Lee's majority was thus 67 in place of 9 votes, as was reported
by the managers.

In view of the above your committee correct the vote of Williams-
burg County, as follows:

By the returns of the State board of canvassers Richardson received
2,084 votes and Lee 1,585 votes. This would give Richardson a ma-
jority of 499, which it is evident goes to make up Richardson's assumed
majority of 8,468.

Your committee here summarize their correction of the vote of this
county by precincts, as follows :

Vote of Williamslurg County.

Precincts.

As returned to the
State canvassers.

As corrected by the
committee.

Richardson.

Lee.

Richardson.

Lee.

112
81
107
563
117
18
309
117
74
111
83
333
75

59
110
8
78
118
348
592

112
71
85
563
95
18
305
117
74
82
83
333
75

59
120
30
78
141
348
592

Black Mingo - -

Groham Cross-Roads

Greelyville -

109
120
14

109
149
14

Sut ton

138

Add three polls not included in the return made to the
State canvassers :

2,013

72
49
30

1,778

155
426
217

Salter's

Lee's majority

2,164

2, 576
412

The above table shows the vote of this county as shown by the testi-
mony, and in place of a majority for Richardson of 499, as given him by
the State board of canvassers, your committee find a majority of 412
votes for Lee, and we so accord it.

HORKY COUNTY.

The State board of canvassers certify that Mr. Richardson received

LEE VS. RICHARDSON. 543

in this county 2,173 votes and Mr. Lee 599, giving Mr. Richardson a ma-
jority of 1,574. (See Record, p. 228.) But it appears from the Record,
page 23G, that the board of county canvassers did not canvass or count
the vote cast at Martin Hill precinct, in that county ; their reason for
so doing they state as follows :

In view of the facts as set forth in affidavits hereto annexed, to the effect that the
polls were not opened at above precinct at the hour prescribed by law, the board of
canvassers, on motion, decided that the vote of this precinct be not canvassed or in-
cluded in the general statement.

The ex parte affidavits referred to are found in the Record on page 237.

Moses F. Sarvis swears that owing to the fact that Nirnrod Davis,
one of the managers, did not arrive till about that hour, the polls were
not opened until about a quarter past eight o'clock in the morning.

John Martin swore he was there at 7 o'clock and could not deposit
his vote because the polls had not been opened.

Frank Wilson swore that he was there at 7 o'clock and could not
deposit his vote because the polls had not been opened up to that hour,
" and that he and others had to go to Cedar Grove to vote."

Upon this ex parte testimony the poll was rejected. The three man-
agers who held the election certified (Record, p. 236) that Mr. Lee re-
ceived 172 votes and Richardson 13 votes, giving Lee a majority of
159 votes, which he lost in the count by the rejection of this poll.

McCrary declares (sec.

That a few minutes' delay in opening the polls will make no difference, but several
hours' delay may render the election void, and certainly will have that effect if the
party complaining of it can show that he has been injured thereby.

But when we analyze the case it appears that only 185 votes were cast
at that poll; that the polls were open continuously froinS^ a. m. till 6 p.
in., and that some and probably all of the few persons there about 7
o'clock in the morning went to Cedar Grove and voted. It does not ap-
pear for whom they voted or wished to vote. This is one of the few
polls at which there is no pretense of intended fraud. There is not the
slightest proof that either Lee or Richardson lost a single vote by the
failure to open the polls promptly at 6 o'clock in the morning. Your
committee feel that the simplest statement of the facts affords the
strongest commentary. And we count this poll as the managers did,
and accord to Lee 159 majority, and as the result of the foregoing your
committee add to Mr. Richardson's certified vote in this county 13 votes
and to Mr. Lee's 172 votes, making the vote as actually cast by the
voters and counted by the managers for Mr. Richardson 2,180 votes and
Mr. Lee 771 votes, giving Richardson a majority of 1,415 votes, instead
of 1,574, as allowed him by the State board of canvassers.

DARLINGTON COUNTY.

The State board of canvassers certify that Mr. Richardson received
in this county 4,671 votes and Mr. Lee 2,117 votes, giving Richardson
a majority of 2,554 votes. (See Record, p. 228.)

But the secretary of state certifies on page 228 of the Record that " no
managers' returns from any precinct" in Darlington County were on
file in his office, nor were any returns from any voting precinct in said
county sent to his office by the county canvassers. It is impossible,
therefore, to ascertain what was the vote at any precinct in this county
by anything in the record from the State board of canvassers. Only the
gross result is given as above.

But on pages 570, 571 of the Record the coutestee, Richardson, for

544 DIGEST OF ELECTION CRSES.

the purpose of supplying this deficiency, introduced in evidence a
schedule showing the precinct managers' returns for each and every
polling place in Darlington County, by which it appears that according
to the managers' returns Richardson received 4,567 votes in place of
4,671 votes, as certified to by the secretary of state; in other words, the
secretary of state gives Richardson 104 votes more than did the man-
agers who held the election.

But section 4 of the act of 1872 of South Carolina made it the duty of the
-chairman of the board of county canvassers to forward by a messenger to
the governor and secretary of state " the returns, poll-lists, and all the
papers appertaining to the election." We think it cannot be questioned
that the statement of the managers who held the election, verified by
their returns and poll-lists, &c., is better evidence than the certificate of
the secretary of state, who certified that he never saw the returns and
poll-lists, for they were never sent to him as the law requires.

It is manifest that Mr. Richardson's majority grew to the number 104
votes, by his own testimony, after the polls were closed and the result
declared.

Florence Precinct.

Contestant in his notice of contest distinctly charged that the poll-
list at Florence was " falsified by the insertion thereon of fictitious
names." This is as distinctly denied by coutestee. L. W. Gadsden, a
United States supervisor, swears there were 18 more names on the poll-
list kept by the managers than there were ballots in the box. (Record,
p. 371.) In this he is corroborated by W. J. Bradford, who was pre-
sent and kept tally. (Record, p. 176.) He swears there were 1,048
names on the poll-list kept by the managers, aud only 1,030 ballots
in the box. Both these witnesses were sworn and examined on Februa ry
25, 1881.

On the 15th of March of the same year, William McKenzie (Record,
p. 507), a witness for contestee, swore he was one of the managers at
this poll, and that all the managers were Democrats. He was exam-
ined at length, but he does not deny that the poll-list was falsified as
above set forth.

Capt. E. W. Lloyd (Record, p. 518), also a witness for contestee,
was examined on the 16th of March, 1881. He swore he was clerk of
the board of managers ; he was also a Democrat. He ought to know
all about the poll-list. He does not deny or even mention the alleged
falsification of the poll-list by the insertion thereon of 18 fictitious
names. No witness in all the record denies the statements of Gadsdeu
and Bradford in regard to the poll-list at Florence, though sonic 16
were put upon the stand and examined by contestee touching that
poll.

L. W. Gadsdeu, United States supervisor (Record, p. 365), swears
that he arrived at the poll a few minutes after 5 o'clock a. m.

The managers were then there ; the door was guarded where the poll was ; the
place was crowded with a lot of Democrats ; I could iiot get wjthiu ten feet of the
door.

He states that a few minutes before the poll was opened he attempted
to go in to witness the opening and to examine the box ; that he was
obstructed from getting in by a crowd of town authorities or police-
men ; that he showed his commission as United States supervisor, and
told them he was going in ; that one Captain Gaillard told him he
must wait until he, Captain Gaillard, saw Captain Blackwell,to find

LEE VS. RICHARDSON. 545

out if he had any right there or not. Gaillard came back and said it
was all right. He started, and was stopped again. Captain Gaillard
then assisted him, and he then got in.

The box was locked, and the voting had been going on ten or fifteen
minutes. " I asked the managers to let me copy the names off their poll-
list ; they said they had not time to stop, and could not stop the clerk."

He further testifies :

I asked to be allowed to have a clerk, and was refused, and was not allowed to
copy those names on the managers' poll-list that had voted. (See Record, p. 365.)

He also testifies, on Eecord, page 369, on his cross-examination :

Q. Did you stay there all day ? A. Yes, sir; only absent for about three minutes.

Q. How do you account for the fact that you were there all day as a life-long Re-
publican, watching the election, for there being more names on that poll-list than
there were ballots in the box ? A. They must have had a false poll- lint prepared before-
hand that they carried in there, and failed to put enough ballots in the box to tally with the
poll-list. I was not allwoed to examine the list. The box was closed before I waa
allowed to go in.

Q. Did you witness the count ? A. I did.

Q. You stated that you were there all day except about three minutes. Now did you
or not see the names that were written on the poll-list ? A. I did not, for I was not
allowed to examine it.

Q. Did you ask to be allowed to examine that poll-list ? A. I did ask, and asked
further to be allowed to copy from it.

Q. Who did you ask ? A. The managers.

Q. What time of day was it when you asked to be allowed to copy and examine the
poll-list ? A. I first asked in the morning when the voting commenced, and again.
that night when the polls closed.

Q. What did the managers say in reply to your request ? A. They said I could not
be allowed to interrupt the clerk. That was in the morning. But at night when I
asked to be allowed to examine the list, they refused to let me examine it, but had
no objections to the clerk calling the names so I could take them down, but said it was
too late to remain.

Q. Who was the clerk ? A. Captain E. W. Loyd.

On his cross-examination he further states (Record, p. 368) :

Q. What time did you reach the polls on the morning of the election ? A. A few
minutes after five o'clock.

Q. What did you see there ? A. I saw a lot of Democrats around the polls and the
door guarded by policemen and constables.

Q. Did you try to gain admission to the polls ? A. I did.

Q. To whom did you apply for admission f A. I started to the polls and was stopped
by policemen and constables and told that I could not go up.

Q. What policemen and constables denied you admission ? A. T. D. Branson, John
Dockery, E. M. Selfe ; those were the policemen, and Z. T. Kershaw was the constable.

Q. What did they tell you f A. That I could not go up to the polls. I told them I
was United States supervisor, and showed them my commission, and told them I must
go up.

Q. Is that all they said to you ? A. Yes ; that I could not go up, and shoved me out
of the way.

Q. Did they or not tell you that nobody but policemen and constables could go into
that house ? A. They had a line drawn, and told me that nobody else had any right
in there.

Q. Did they or not tell you that nobody but policemen and constables could go into
that house ?

(Counsel for coutestee demands an answer, yes or no.)

A. I have answered it already.

Q. Did you show your commission to anybody ? A. I did.

Q. To whom did you show it f A. I showed it to the very men that stopped me,
and Captain Gaillard.

Q. Did they then admit you? A. Captain Gaillard told me to wait until he saw
Captain Blackwell.

Q. Did he say anything else besides this ? A. Not until after he saw Captain Black-
well.

Q. Did he or not tell you to wait until he saw Captain Blackwell as to whether or
not you had a right to go in ? A. He did ; but Captain Blackwell is a private citizen,
and I did not think he had a right to pass upon my commission.

H. Mis. 35 35

546 DIGEST OF ELECTION CASES.

He also swears (Record, p. 366) that 300 or 400 Republicans were
standing in line, ready to vote, when the polls closed, while the Demo-
crats were allowed to vote freely and unobstructedly during the day
that late in the evening 60 or 75 Democrats came in from Timmonsvillej
that the line of Republicans that had been standing there all day were
made to stand back, by the constables and town marshals, and those
men from Timmonsville allowed to go up and vote. He is corroborated
by 208 voters who were prevented from voting, whose depositions are
found between pages 139 and 342 of Record. They all swear they de-
sired to vote for Samuel Lee, but were forcibly prevented from getting
to the ballot-box. Asked why they did not, the answers were, " because
the Democrats would not let me get to the polls." Witness after wit-
ness swears that he was there from 6 o'clock a. m. to 6 o'clock p. m.
trying to vote. What was done was excused by Mr. Richardson (brief,
p. 148) on the ground that the Republicans intended to take possession
of the polls and vote first, and asks

Can the Democrats be blamed for standing their ground and voting first and before
they gave way to the colored voters, who had laid a trap in which they were caught ?

Surely not, but neither party had the right to prevent the other party
from voting.

John T. Rafra was United States supervisor at Timmonsville, and
swears (Record, p. 85) he saw a crowd of Democrats, he counted 75 on
the top of the flat cars, "and the coach was full of them," going in the
direction of Florence. He swears they all voted before leaving Timmons-
ville. In this he is corroborated by John E. Keeler (Record, p. 374),
who testifies he counted 75, and that every one of them had voted before
they left Timmonsville. S. W. Gadsdeu gives the names (Record, p.
365) of persons he knew who came from Timmonsville and voted at
Florence, viz, Alexander Taylor, Yaiity Byrd, H. M. Oliver, W. J.
Stradford, and George Montgomery. Not one of these persons was
called in rebuttal! The few witnesses examined by Mr. Richardson
touching Florence poll were the officers who held the election, the po-
liceman who kept the colored Republicans from the polls, and a few act-
ive Democratic partisans.

We have seen (Record, p. 571) that the contestee puts in evidence
a schedule of the vote at each precinct in Darlington County, accom-
panied by the certificate of J. N. Garner, the clerk of the court of com-
mon pleas, that

The schedule represents truly and correctly the balloting for member of the Forty-
seventh Congress.

Sworn as a witness, the same Garner testifies as follows (Record,,
p. 738, bottom) :

Q. Have you not had occasion to certify to the correctness of the precinct returns
touching the last election for member of Congress I A. I don't think I did, because
I could not certify to the correctness of the returns, as it seems to me that a commis-
sioner ought to do that.

Q. Did you or not f A. I did not.

It appears further, by his testimony, that the precinct returns, in-
stead of being sent, as the law requires, to the secretary of state, were
with the ballot-boxes placed in the jury-room opening into the court-
room, which was open for all public purposes, and only when not used
was it locked up. Two terms of court were passed before he was ex-
amined.

Your committee feel constrained to say we must reject Florence poll,
because there was an unlawful interference with the United States su-

LEE VS. RICHARDSON. 54?

pervisor of election, whereby he was prevented from discharging the-
duties which were committed to his hands by the law of Congress ; be-
cause it is clear that the poll-list at Florence was falsified by the in-
sertion thereon of fictitious names by the officers of the election ; be-
cause it is evident that a crowd, the exact number of which it is impos-
sible to say, who had already voted at Timmonsville, were permitted
to vote at Florence for Richardson, while more than 200 of Mr. Lee 7 *
supporters, standing in line all day, were forcibly prevented from vot-
ing at all ; and because the evidence as to what the actual vote at Flor-
ence poll was is so unreliable as to be utterly without credit.

The conduct of the election officers was such as to destroy the integ-
rity of their returns, even if we had any means of knowing what those
returns were. There is no proof aliunde how the vote stood. The>
election was so utterly unfair, by reason of fraudulent voting and forci-
ble preventing of honest voting as to give us no course but to reject
the poll, which we accordingly do.

Darlington Precinct.

AVhat the exact vote at this precinct was we have no means of de^
termining other than the certificate of J. N. Garner, the clerk of the*
court of common pleas for that county, which was introduced by Mr-
Richardson, on page 571 of the Record. But we have already seen im
the case of Florence precinct that the same witness, Garner, testifies;
that he never did certify to the correctness of the schedule found oa
page 571 of the Record, in which Richardson is set down as having re-
ceived 1,271 votes and Lee 117 at Darlington precinct. On pages 737
and 738 of the Record, the same witness, Garner, testifies as follows, on
the 15th of April, 1881, when interrogated as to the returns of the pre-
cinct managers :

A. Election papers were filed in my office by the commissioner of election, J. G-
McCall.

Q. Please state what those papers were. A. I cannot; I did not examine them.

Q. Have you not had occasion to examine those papers since they have been filed
in your office ? A. I have not.

Q. Then you have no idea of what papers are filed in your office bearing upon th&
election of member of Congress in Darlington County at the last election ? A. 1
know there were election returns bearing upon the last election. They have been
examined repeatedly by others, but not by myself.

Q. Do you know if those returns in your office are correct or not? A. I do not
know anything about them.

Q. Were those returns filed in your office delivered to you in or out of the ballot-
boxes? A. They were delivered to me in an envelope outside of the ballot-boxes.

Q. Were the ballot-boxes ever filed or deposited in your office ? A. They were, as-
they usually have been in my office.

Q. Have you ever had occasion to examine the papers or seen in those boxes ? A-
I have never examined the papers and have never seen in the boxes until yesterday.

In this testimony he is corroborated by J. G. McCall, who was chair-
man of the county board of commissioners. On page 110 of the Record
he testifies as follows :

Q. Did you make any returns to the secretary of state showing the votes cast at
the separate precincts throughout the county ? A. We did not.

Q. What did your board do with the returns from the various precincts throughout
the county? A. I think those returns were put back in the ballot-boxes and turned
over to the clerk of the court.

Q. Will you be positive that such disposition was made of them ? A. That is my
recollection of it.

On page 109 of the record, when asked if he could state what wa&

548 DIGEST OF ELECTION CASES.

the vote at Darlington precinct for member of Congress, he answered,
page 110, top : " I cannot."

It thus appears by the testimony of McOall, the chairman of the
board of county commissioners, who testifies that he made no return of
what the vote was at Darlington precinct, either to the secretary of
state which is corroborated by the certificate of the secretary of state,
who testifies that no such returns were made to him, page 228 or to
the county clerk, and by the testimony of the clerk himself, on page
738, who also swears he never examined the managers' returns from the
various precincts of Darlington County showing the results of the elec-
tion held in 1880 for member of Congress.

It further appears by the testimony of George W. Brown, Mr. Eichard-
son's own attorney, who was put upon the stand by Mr. Lee, in rebuttal,
that he found the precinct returns in the ballot-boxes in one of the jury-
rooms of the court-house. (Eecord, p. 736.)

On the cross-examination of Garner, the clerk, by the same witness,
Brown, acting as the attorney for Mr. Richardson, testifies as follows
(Eecord, p. 739) :

Q. You say that the ballot-boxes, with what they contained, upon being returned
to you after the last election, were deposited in a jury-room upstairs in the court-
house ? A. They were.

Q. Have you not charge, and do you not keep the keys of that court-house by au-
thority of law ? A. I do.

Q. The court-room proper leading to that jury-room is used for all public purposes,
is it not ? A, It is.

Q. When not so used, is it not kept locked ? A. It is.

Q. Has it not been frequently used for public purposes since the last election and
since those boxes were deposited in the jury-room ? A. Yes, sir.

Q. When the court-room is used by the public, have they not also access to the
jury -room where the boxes were ? A. They have.

Q. Were those boxes kept locked, and is there any law requiring you to keep them
locked ? A. They were not kept locked, and there is no law requiring them to be
kept locked.

Q. Might they not, when returned, contained the papers for which contestant yes-
terday searched, and all other papers which the law requires them to contain, and
have been lost since ? A. They might.

We think the above evidence conclusively establishes that no con-
fidence can be placed in any so-called returns from Darlington pre-
cinct.

Brown testifies that he prepared the statement (Eecord, p. 736)
which purports to have been certified to by the cJerk, Garner, but which
he testifies he did not certify to. The ballot-boxes and their contents
had been open to the access of any who chose to go and examine them,
as the witness Brown did. Whether they had been tampered with or
not no one testifies and no one can. How the vote stood for member
of Congress at Darlington precinct the secretary of state does not
know, for he certifies that no separate return of the vote of that precinct
ever came to his hands.

Garner, the clerk, as we have seen, swears he does not know.

McCall, as we have seen, also swears that he does not know; and C.
S. McCullough, who swears he was chairman of the board of managers,
testifies (Eecord, p. 527) :

Q. What was the number of votes cast for member of Congress at this poll ? A.
I do not remember.

And Philip Lewenthal, who swears that he was clerk of the board
of managers at Darlington poll (pp. 546 and 547) testifies that he does
not know. In the entire record no witness swears how the actual vote
stood at Darlington poll. This is one of the precincts especially attacked
by Mr. Lee.

LEE VS. RICHARDSON. 549

A vast mass of testimony was taken by both parties touching this
poll. From the evidence in the record it is not possible to ascertain
the true result.

The rule as laid down by McCrary (sec. 437) we think should be ap-
plied to this case, and is as follows :

Where the true vote cannot be ascertained, either from the returns or from evidence
aliunde, the vote of the precinct is to be rejected.

But it is very evident from the testimony that intense excitement
prevailed at Darlington on the day of the election. The polls were held
at a different place than the usual one.

The witness McCall, a county commissioner of election (Record, p.
Ill), admits that the place 'was less convenient. It was up in the sec-
ond story of the court-house, 15 feet above the ground, with two stair-
ways leading up to the ballot-box.

It appears from all the testimony that the Democrats, dressed in red
shirts and caps, took possession of the polls from the outset.

J. A. Smith (Record, p. 106), states that from 700 to 800 Republicans
were prevented from casting their votes by reason of intimidation. He
says :

I made three attempts to reach the ballot-box myself and others; I found it im-
possible to do so without a collision with the Democrats and red-shirts, who had the
steps packed from bottom to top.

Aimwell Western, jr, (Eecord, p. 92), states that from 800 to 1,000
Republicans left the polls without voting. He also states that on the
night before the election two wagons loaded wit*h guns came on the
back street and they were carried down the street next to the court-
house. A portion was placed in a store of one Early and " some were
put in the court-house where the ballot-box was."

On Record, page 94, he gives the names of the men who unloaded
those wagons : Moses Bishop, Sam Hinds, Rosser Hart, and Charlie
Bishop. He states that Moses Bishop and Sam Hinds carried a portion
of those guns upstairs where the ballot-box was. It appears from his
testimony that guns were brought on the train about 12 o'clock at night,
which train neither blew a whistle nor rung a bell. The guns were tied
up in blankets in large bales.

i^one of the persons who handled the guns were called as witnesses
to deny the statement. A great many witnesses were called by Mr.
Richardson who did not see any guns and did not see any intimidation.

Aimwell Weston, sr., swears as follows, among other things :

Q. Did you vote there ? A. I could not vote there.

Q. Why could you not vote T A. There was bulldozing, pushing, pulling, and
blockading the steps. Some of them had knives drawn ; looked like they were
drunk.

He also testifies they had red shirts on. (Record, p. 116.)

Edward Williams, on same page, testifies to the same effect.

Simeon Sauuders (Record, p. 117) saw men attempt to go up those
steps and saw them tumble back; they were pushed back by the Dem-
ocratic crowd upon the steps.

Thomas Myers (Record, p. 105) testified :

Q. What poll did you attend ? A. Darlington poll.
Q. Did you vote ? A. I did not.

Q. Why did you not! A. They would not let me.
Q. Who would not let you? A. The Democratic party.

Q. How did they prevent you ? A. I started up the steps, and they told me I should
not go up.

X50 DIGEST OF ELECTION CASES.

<J. What did they do to prevent you from voting ? A. They pulled me back. I
attempted to go up twice, and they pulled me back by my coat.

Noah Burch testifies (Eecord, p. 105) that he tried to vote ; that the
.steps were full from bottom to top with white men; that they shoved
him down and told him he could not vote ; that he tried again, and
was again shoved back by the Democratic crowd on the steps.

Simon Scott (Eecord, p. 136) testifies that a crowd of Democrats
dressed in red shirts prevented him from voting. He says :

I went up to the steps of the court-house, and they said, You cannot vote here unless
you vote a Democratic ticket.

Burrell Mclver (Record, p. 355) testifies that he did not vote

Because the court-house steps were so crowded with Democrats that I could not
areach the ballot-box to cast my ballot. They would not let me go up the steps.

Q. Did you see any men with guns, and to what political party did they belong ?
.A. The Democratic ; I saw no arms but theirs.

Q. Where were these men with their guns? A. In a store in front of the court -
liouse.

Peter White (Eecord, p. 384) testifies as follows :

<J. Did you vote ? A. No, sir,

Q. Why not ? A. Because I was prevented by the Democratic party. The ballot-
liox was in the court-house, and I tried to go up the steps and they would not let me
go up ; saw one man trying to climb up on the outside of the steps, and when he got
oip his handhold was broken loose and he fell to the ground and was hurt.

Cross-examined by C. D. EVANS:

Q. What time did you f each the Darlington poll that day f A. About a quarter of
.an hour after sunrise.

Q. When did you leave? A. About 2 p. m., I guess.

Q. Did you hear Jack Smith's order for all Republicans to go home, and at what
4)ime did you hear it? A. I heard it about 11 a. m.

Q. You say it was impossible for you to vote from the time you reached Darlington
suntil you went away ? A. It was really impossible. I was very determined, and I
no chance without getting hurt or being killed.

Alonzo Lewis sworn (Eecord, p. 378) :

Question. State your name, age, residence, and occupation. Answer. Name, Alonzo
iiCwis ; 23 years old; residence, Darlington County; occupation, butler.

Q. Were you at the Darlington polling precinct on the day of the last election A.
Yes, sir.

Q. Did you vote? A. No, sir.

Q. Why not ? A. Because I couldn't get to the polls ; the red-shirt Democrats pre-
vented me from getting to the polls ; they were standing on the steps leading up to
the box. I attempted to go up, and they said, " No radicals in here; no radicals in
here," and all caught arms together and shoved me back.

Q. Who did you intend voting for for Congress? A. Samuel Lee.

The above are given as specimens, taken almost at random from the
printed testimony.

The depositions of 240 witnesses appear in the Eecord, who swear they
were present at the Darlington poll and desired to vote for Mr. Lee, but
were prevented from so doing by threats or intimidation. Convinced
Ahey could not vote without danger of riot and bloodshed, hundreds
withdrew from the poll. There is counter-testimony in the Eecord, but
it is from the very parties complained of, and from comparatively few
other witnesses.

Your committee are compelled to say, from all the evidence, that the
ase of Darlington poll falls within the principle laid down by McCrary,
^s follows :

SEC. 416. The true rule is this : The violence or intimidation should be shown to
3iave been sufficient either to change the result or that by reason of it the true result
cannot be ascertained with certainty from the returns. To vacate an election on this

LEE VS. RICHARDSON. 551

ground, if the election were not in fact arrested, it must clearly appear that there
was such a display offeree as ought to have intimidated men of ordinary firmness.

Here it is proper to remark that up to 1878 Darliugton precinct al-
ways was largely Republican.

A few years ago the Republicans used to poll 1,200 to 1,300 votes at
that poll. See testimony of John G. Gatlin (Record, p. 79), John Lun-
ney (Record, p. 81), Jordan Lang (Record, p. 95).

At the election in 1880 Mr. Richardson is credited by the schedule,
which purports to be certified to by the clerk, Garner, but which he tes-
tifies he did not certify, as having received 1,271 votes to 117 votes for
Mr. Lee ; and from the impossibility of ascertaining how the actual
vote stood at Darlington poll, by the disregard on the part of the county
commissioners to forward the returns and poll-list to the secretary of
state, in violation of a plain provision of law, and from the fact that in-
timidation and violence prevented hundreds from voting, your commit-
tee reject Darlington poll from the count.

Lydla Precinct.

All the managers at this poll were Democrats.

As we have seen, no possible reliance can be placed on the statement
in the schedule purporting to be certified by the clerk, Garner (Record,
p. 571), since he swears he did not certify it. We therefore rely upon
the report, sworn to and put in evide'nce, of the two United States
supervisors (Record, p. 113), by which it appears that Richardson re-
ceived 572 votes and Lee 193 votes.

An excess of 163 votes was found in the box, showing the box was
stuffed. As the election seems to have been fairly conducted after the
arrival of the supervisor, Robinson, which was just after the polls were
opened, we conclude the box was stuffed in the beginning, and by the
managers. But since the excess was drawn from, the box, and seems to
have been fairly withdrawn in proportion to the vote of each candidate
for Congress, we think that both Lee and Richardson should each be
credited by the number of votes which were counted for them, as shown
by the report of the two supervisors, viz, Richardson 572 votes, Lee 193 ;
majority for Richardson of 379.

Society Hill Precinct.

For the same reasons as above stated, no reliance can be placed on
the clerk's schedule, which the clerk himself rejects, as to what was the
true vote at this precinct. But on page 363 of the Record we have the
report of Z. W. Wines and E. P. Cannon, the two supervisors, which
Wines, as a witness (Record, p. 338), testifies gives a true account of the
poll when the box was opened and the votes counted.

By it it appears that the poll-list kept by the managers and those
kept by each of the supervisors all showed that 535 votes were cast.
Extra ballots were found in the box.

The box had been stuffed. John T. Prince, one of the managers,
swears (Record, p. 565) that 58 ballots in excess were found in the
box. The managers and clerks were all Democrats. The excess of
ballots was drawn out and destroyed, of which 12 had Richardson's
name on them.

If the ballots destroyed had been the exact fraudulent ballots put in
the box this would have been precisely just. But this could scarcely
be.

552 DIGEST OF ELECTION CASES.

It is not right that all the managers, in all the precincts of a county,
should be the partisans of one candidate.

It is not just that ballots should be honestly voted and then with-
drawn and destroyed because other fraudulent ballots had been stuffed
into the box.

Happily, we have the means to determine how many honest votes each
candidate for Congress received at this poll. In the Record, page 118,
is found a list of 383 names kept by H. D. Kershaw and E. E. Postell,
all of whom, they swear, voted for Mr. Lee. They saw them cast their
votes. (Eecord, pp. 118 and 339.) Since 12 of the 58 votes drawn out
were for Eichardson the other 46 must have been for Lee ; and adding
these 46 votes to the 337 counted for Lee we have 383 votes, which ex-
actly corresponds with the list of 383 names of voters, who Kershaw and
Postell testify voted for Lee. We therefore accord to Lee 383 votes and
to Eichardson 152 votes, making a total of 535 votes, the number of votes
cast at this poll.

Lisbon Precinct.

This poll is in like strait as the preceding. We, however, find on page
238 of Eecord the report of the two United States supervisors, H. 0.
Harroll and J. H. Huggins. This report Harroll, as a witness, on page
194, testifies is correct. By it we see that 493 names were on the poll-
list, and the managers counted for Eichardson 317 votes and for Lee 176
votes.

This box had been stuffed with 98 fraudulent ballots. All the man-
agers were Democrats. Ninety-eight ballots were withdrawn and de-
stroyed, of which 39 were for Lee and 59 for Eichardson. (Eecord,
p. 238.)

If this was a Democratic fraud, then Lee was deprived of 39 votes,
and Eichardson gained that many. That it was a Democratic fraud is
manifest when we see that W. E. Dukes (Eecord, p. 201) testifies he
was present and kept a list and saw 215 persons vote for Lee. He
furnishes that list of names. (Eecord, p. 223.) There is no witness
called to deny this. And when we add 39 Lee ballots, withdrawn from
the box, to the 176 which the managers counted for him it amounts to
exactly 215. But subtracting 215 Lee's votes from the whole vote of
493 and it leaves 278 as Eichardson's true vote.

Timmonsville Precinct.

By the report of the supervisor (Eecord, pp. 68 and 69) 608 votes
were counted for Eepresentative in Congress. The managers counted
533 votes for Eichardson and 75 for Lee. It was from Timmonsville
that 75 or more Democrats, having voted there, went to Florence poll
and again voted. The ballot-box was stuffed at Timmonsville, and the
excess drawn out and destroyed. Eafra, the supervisor, swears to his
report. (Eecord, p. 84.) The managers and clerk were all Democrats.
J. E. Keeler testifies (Eecord, p. 373) that he kept a list of the Repub-
licans; that they voted Eepublicau tickets, and for Samuel Lee for Con-
gress. The list is found (Eecord, p. 376) showing 199 names.

The contestee has not shown that a single one of these 199 did not
vote for Mr. Lee. We correct this precinct by giving to Mr. Lee 199
votes and subtracting that number from the whole vote, 608, gives 409
as Mr. Richardson's true vote.

LEE VS. RICHARDSON.
Lea remcorth Precinct.

553

By the report of F. W. Prince, United States supervisor, made an
exhibit to his deposition (Record, p. 98), it appears that the names
on the poll-list kept by the managers of election were 594. That 239
fraudulent ballots in excess were found in the box. As usual the box
had been stuffed ; 239 ballots were withdrawn and destroyed by the
Democratic managers 110 Republican and 129 Democratic. W. H.
Waddell testified (Record, p. 99) that he kept a list of the Republican
votes ; that he saw the names of the candidates on the tickets, and
that they all voted for Samuel Lee.

The list foots up 308 names. As this list is undisputed by any wit-
ness, we accord to Mr. Lee 308 votes at this precinct, and the balance
of the 594 we count for Mr. Richardson, to wit, 286 votes.

Correcting the vote at the precincts above set forth, as we have, and
leaving untouched the other precincts of Darlington County, and
counting them as claimed by Mr. Richardson, and the result is as fol-
lows:

Vote of Darlington County.

Precincts.

As found by the committee.

Richardson.

Lee.

Leaven worth

286
195
572
31
409
143
142
278
152

308
69
193
349
199
29
95
215
383

Cartersville

Lvdia

!&fechanic8ville

Timmonsville

Guiu Branch

Effinsrham ...

L.18 bon

Society Hill

Darlington ......

Hartsville

187

Florence

Richardson's majority

2,395

1,884

511

We find for Mr. Richardson, in Darlington County, a majority of 511
votes, in place of 2,554 votes, as given to him by the returns of the
State board of canvassers.

MARLBOROROUGH COUNTY.

Bennettsmlle Precinct.

The secretary of state certifies (Record, p. 226) that Lee received 464
votes and Richardson 335. An excess of 61 votes was found in the
ballot-box. That number of ballots were withdrawn and destroyed, 60
being Lee's votes and only 1 a Richardson ballot. (D. D. McColl, United
States supervisor, Record, p. 253.) How this strange result happened
McColl in his testimony explains. The tickets were easily distin-
guished by feeling.

When box was opened at close of polls there were sixty-one more votes in box than
names on poll-list of clerk of managers, and in drawing out, the clerk who did the
drawing would carefully feel the ballots, and turn loose a Democratic ballot if he
found on feeling that it was such, and continue to feel until he would bring out a

554: DIGEST OF ELECTION CASES.

Republican ticket. The second ticket drawn from box u-aa only mistake he made, this
one being a Democratic ticket ; the other sixty so drawn out being Republican.

Weatherby, a Democratic manager, testifies as follows (Record, p.
652):

Q. Could he simply by the touch distinguish the tickets? A. Yes, I think so ; un-
less they were pasted together ; one was heavier than the other.

He also swears the clerk seemed to be in no hurry.

Now, adding 60 votes to the 464 counted for Lee and we have a total
of 524 as Lee's true vote, if all the Republicans voted for him; but Mc-
Coll swears that 511 did vote for him, whose names he gives (Record,
p. 274), and Mr. Lee proves by five other witnesses, whose names were
not on McColl's list, that they also voted for him. (See Record, pp.
255, 259, 260, 263, and 273.)

We therefore count for Lee 516 votes, and give the balance, 283, for
Richardson.

Red Hill.

The secretary of state returns for contestant 182 votes, and for con-
testee 353 votes, but it appears by the testimony of J. W. Jenkins
(Record, p. 270) that the ballot-box was stuffed. Jenkins was United
States supervisor. He swears to the report found on page 290 of Rec-
ord, that there was an excess of ballots in the box over poll-list of 25.
All the managers were Democrats. In withdrawing this excess, 24 bal-
lots bore the names of the Republican candidates and 1 of the Demo-
cratic candidates.

William A. Rogers, an Independent, swears (Record, p. 269) that the
colored voters all approached the polls by the back door

And as one approached the door and made it known that he wanted to vote the
ticket prepared by the Republican party, I would fold the ticket and hand it to him.
I did this so they should not be charged with voting double tickets. (Record, p.
269.)

And one of the Democratic managers, W. B. Alford, a witness for
contestee (Record, p. 663), thinks there was an excess of about 24. On
cross-examination, he testifies as follows :

Q. Can you account for how 24 ballots were in excess of the names on the poll-list ?
A. Only in this way, by finding two ballots folded together ; from appearance they
were supposed to be put in together when voted.

Q. When two or more ballots were found folded together, were not all destroyed
save one I A. I don't recollect about that, but I think they were returned to the box
and the excess drawn out.

Q. Then the managers did not observe the law in that particular, did they ? A. I
do not remember the particulars in that regard ; I paid more attention toward the
ballot-box than anything else.

Since all the officers conducting the election were Democrats, since
pains were taken to prevent the Republicans being charged with double
voting, and since the excess of votes must have been a Democratic fraud,
from the evidence, and because it clearly appears that at least 24 honest
votes were withdrawn, and that at least 23 if not 24 were Republican
tickets, we correct this poll by adding 23 votes to contestant's returned
vote of 182, because 23 of his honest ballots were withdrawn from the
box, and we deduct 23 votes from the 353 votes counted for Richardson,
because 23 fraudulent ballots were counted for him. So correcting the
vote and the result is : For Richardson, 330; and for Lee, 205.

LEE VS. RICHARDSON. 555

Brownsville Precinct.

At this precinct, by the secretary's report, Lee received 00 votes and
Eichardsou 290, but it appears by the report of the two United States
supervisors, Moses W. Pearson and W. B. Drake, put in evidence and
found on page 242 of Eecord that this ballot-box was stuffed by 129 bal-
lots over the names on the poll-list; to reduce the number of ballots
to correspond with the names on the poll-list 129 ballots were withdrawn
by the managers, and the strange disparity occurred here as elsewhere
in withdrawing the excess. The managers were all Democrats. They
ought to have guarded the box with zealous care. They withdrew 116
ballots which bore the name of the Republican candidate and only 13
Democratic ballots. It was a repetition of what we have already seen
occurred again and again. We correct this poll by adding 116 to the
90 votes counted for Samuel Lee, making a total of 206 for Lee ; and
deducting 116 from the 290 which the managers counted for Eichardsou,
which leaves him 174 votes. Lee honestly received 206 votes and Eich-
ardsou 174 at this poll.

Hebron Precinct.

At this precinct the secretary returns for Lee 106, for Eichardson
245 ; total 351. There was an excess of ballots in the box of 43 over
and above the names on the poll-list. See testimony of B. F. Hainer,
United States supervisor (Eecord, p. 258), his report (Eecord, p. 282).

All the election officers were Democrats. This box had also been
stuffed; 43 ballots were withdrawn and destroyed. How many Lee
ballots were withdrawn the Eecord failed to show, but Ennis Campbell
(Eecord, 263) and Crawford Tournage swear about 30 Lee ballots were
withdrawn and destroyed. Tournage further swears that he saw 145
Eepublican votes cast. Adam Cook (Eecord, p. 259) testifies that
he made a list of 145 names of those who voted the Eepublicau ticket ;
he furnishes that list in Eecord, p. 283.

In this he is corroborated by Gibson Townsend (Eecord, p. 260), who
testifies he was acquainted with most of those voters. As none of the
witnesses called by contestee deny the above statement, we think it
clear that Lee received 145 votes at this poll. We accord him that num-
ber, and the balance to Eichardsou, which gives for Lee 145 and for
Eichardsou 206 votes.

Smithville precinct.

By the secretary's table Lee received 229 votes and Eichardson 233
votes.

At this poll, as usual, all the managers were Democrats, and the bal-
lot-box was stuffed.

H. S. Grant, United States supervisor, testifies (Eecord, p. 256)
there were 81 more ballots in the box than there were names on the poll-
list. That number was drawn out and burned. Sixty-four of them, bore
the name of Samuel Lee for Congress. (Eecord, pp. 256 and 282.)

H. E. Johnson, a white man, and an Independent Democrat, testifies
(Eecord, p. 267) that Lee's name was on all the Eepublican tickets
drawn out.

William Pagues, a Democratic manager, drew out the ballots. John
son swears (Eecord. p. 267) :

I told him that in the manner in which he was drawing out these ballots I pro-

556

DIGEST OF ELECTION CASES.

nounced him a perjured man, arid told him I intended to indict him in the United
States court.

The reason given was because he evidently hunted for Republican
tickets.

It was so evident that I complained of it, (Eecord, 267.)

On page 266 he testifies to having detected one Williams in the act
of voting two Democratic tickets at once.

The vote at this poll is proved and sustained by a list kept and fur-
nished by witness Benjamin Quick (Eecord, p. 292), whereby it ap-
pears the names of 295 voters are given who voted the Eepublican
ticket. As this testimony is not rebutted, we count, therefore, at this
precinct for Lee 295 votes and for Richardson 167 votes.

We summarize the vote of this county by precincts as follows :

Vote of Marlborough County.

Precincts.

As returned by the
State canvassers.

As corrected by the
committee.

Richardson.

Lee.

Richardson.

Lee.

Bennettsville

335
353
331
290
214
187
245
233
237

464
182
80
90
59
65
106
229
181

283
330
331

174
214
187
206
167
237

516
205
80
206
59
65
145
295
181

Red Hill

Adamsville

Brownsville.

Clio

Red Bluff

Smithville

Brightsville

Richardson's majority

2,425

1,456

2,129
377

1,752

The above table shows Richardson's majority in this county to be
377, in place of 969, as allowed him by the State board of canvassers.

MARION COUNTY.

Marion Court-House Precinct.

At this ballot-box, as at every one in the county, all the managers
were Democrats. B. A. Thompson (Record, p. 425) testifies that he
was one of the county commissioners of election for Marion County ;
that he demanded of the board the appointment of a Republican man-
ager at each precinct, but this was not complied with, and the majority
of the board appointed none but Democrats.

At the Court-House precinct the managers reported 522 votes for Mr.
Lee and 574 votes for Mr. Richardson. As seems to be the rule, this
ballot-box was stuffed. R. B. Mullins, one of the managers (Record,
pp. 632 and 633), testifies: "There was an excess of about 50 ballots
in the box over the names on the poll-list."

J. H. Holloway, a Republican, testifies (Record, p. 411) that 56 Re-
publican votes were thrown out at this precinct. R. J. Blackwell,
another Democratic manager, testifies (Record, p. 637) that there was
an excess over the poll-list of about 50 votes. E. J. Crawford, United
States supervisor, whose report is put in evidence on page 247 of Rec-
ord, states that the excess was 55 votes, and of the 55 ballots withdrawn

LEE VS. RICHARDSON. 557

and destroyed 54 bore the names of the Republican candidates, and
"one doubtful whether Democratic or Republican."

There seems to be no essential controversy, and your committee count
54 votes as having been withdrawn from Mr. Lee's honest vote. They
accordingly add 54 votes to the number counted for Mr. Lee, and de-
duct that number from the 574 votes counted, but not cast, for Mr.
Richardson. This would give as the true result at this poll for Lee 576
votes and for Richardson 520 votes.

Berry's Cross-Roads Precinct.

At this precinct the secretary of state reports that Richardson re-
ceived 372 votes, and Lee received 168.

The managers were all Democrats.

This poll was no exception to the fact of ballot-box stuffing. All the
witnesses interrogated admit this. Gregg C. Crawford (Record, p.
427) testifies that the poll-list called for 541 votes ; that 637 ballots were
found in the box, and he testifies :

Joe Jarnegan put his baud into the box ninety -six times, and took out the excess
votes. All he took out were Republican. They put them into the fire-place and burnt
them.

B. F. Crawford, United States supervisor, whose report is in evidence
(Record, p. 248), states that 96 ballots were withdrawn 93 Repub-
lican and 3 Democratic. The Republican tickets were thick like unto
a card, and the Democratic ticket was a little thin ticket. (Record,
p. 427). Since it is evident, from the testimony, that the ballot-box
was stuffed that 96 fraudulent ballots were found therein, and that 93"
were at least Republican, and only 3 Democratic it is manifest this
fraud was a Democratic one. The disparity in drawing out was enor-
mous.

We correct this poll by adding 93 to the number which the managers
count for Lee, and deduct a like number from the vote counted for
Richardson. This gives 261 to Lee, and 279 to Richardson.

CampbeWs Bridge Precinct.

The secretary of state gives Richardson 284 votes and Lee 111 votes
at this poll. The number of names on the poll-list was 395. (Record,
p. 432). This ballot-box was also stuffed. The managers here were
all Democrats ; 31 extra ballots were found in the box. The total Re-
publican vote found in the box was 141. (Brownhamer, Record, p.
431.) In this he is corroborated by the deposition of D. P. Murphy, the
United States supervisor. (Record, pp. 432 and 461.) How they were
withdrawn is manifest from the testimony of Brownhamer. (Record, p.
431.) He testifies that the manager

Was not blindfolded; just turned himself one sided and put his hand in the box and
felt in there, and would take out a Republican ticket and hand it to John Henry, say-
ing he was working for his country.

Witness adds : .

I could take every Republican ticket put of that box if I was blind as a bat ; one
was soft and thin, the other thick aud stift'.

D. P. Murphy (Record, p. 432) testifies :

He turned his side to the table and drevr them out very carefully, taking his time
as if he was separating the Democratic tickets from the Republican tickets.

He further states that the Republican ticket was very thick, and the

558 DIGEST OF ELECTION CASES.

Democratic tickets were very thin. In his report, to which he swears,
30 of the ballots drawn out bore the names of the Republican candi-
dates, and one of the Democratic candidates. Edwin Bethea, witness
for the contestee (Record, p. 624), states that he drew the tickets out
of the box. He testifies :

I think I can tell a Democratic ticket from a Republican ticket. The Republican
ticket was about one and a half inches shorter than the Democratic, a half inch
wider, and two or three times as thick.

G. J. Bethea states (Record, p. 628) that the excess was 31 votes j
that

Edwin Bethea was not blindfolded in drawing out the ballots; that the Republican
ticket was thicker than the Democratic ticket.

John W. Gourdin (Record, p. 439) testifies that about 30 white men
voted the Republican ticket; he testifies that Ed. Bethea, the man-
ager who withdrew the tickets without being blindfolded, cursed them
for doing so. He said that " if white men would vote the damn nigger
ticket he would throw their votes out."

It is manifest from the testimony that a gross fraud was committed
at this poll. Republican tickets were deliberately withdrawn and de-
stroyed, in place of the fraudulent tickets which had been stuffed into
the box. We therefore correct this poll by adding 30 votes to Lee, and
deducting 30 votes from Richardson, which gives Lee 141 votes, and
Richardson 254 votes.

Friendship Precinct.

The secretary of state gives Mr. Lee, at this precinct, 139 votes, and
Mr. Richardson 104 votes.

J. B. Hayne, United States supervisor, testifies (Record, p. 420)
that there were 157 votes polled for Lee, and 86 for Richardson ; that
he kept a poll-list, and marked the Republicans " R," and the Demo-
crats "D." That list he furnishes (Record, p. 457), which corre-
sponds with his sworn statement, to wit, Republican 157, and Demo-
cratic 86. He states that the Republican ballots found in the box
agreed exactly with his tally, viz, 157 votes, and in this he is corrobo-
rated by John M. Mace, one of the Democratic managers (Record, p.
621). He states that

The tickets were emptied on the table, and we picked out the Democratic tickets
and the Republican tickets, and opened them as we took them up so as to see if they
were folded together. Wall, one of the Democratic managers, took the Democratic
tickets to the hreplace to count them. The other manager, Mace, counted the Re-
publican ballots in the presence of the supervisor and found they agreed with his
tally 157.

He states further :

We got through with the Republican tickets before Wall got through counting the
Democratic tickets. I turned to the fireplace to see what kept him. When we counted
the Democratic tickets, instead of 86 there were 104. My tally of the Democratic
voters was 86. All the tickets, Republican and Democratic, were then placed back
in the box by the managers, and the excess of 18 drawn out by the clerk, all of which
were Republican ballots. .

Wall, the Democratic manager, denies that he perpetrated any fraud,
but the tally-list kept by the United States supervisor and by the man-
agers exactly agreed. It is not denied that 157 Republican ballots were
found in the box. The supervisor furnishes a list of 157 Republicans
who voted at that poll. There was an excess of 18 ballots either in the
box or added after the box was opened. It was a fraudulent excess.

LEE VS. RICHARDSON.

559

The managers deducted 18 ballots from Lee, giving him only 139 votes
and added 18 votes to Eichardson's 86 votes, as found on the list fur-
nished on page 457 of the Record. It is, we think, too clear for argu-
ment that a monstrous fraud was attempted and carried out at this poll.
We correct it by restoring to Lee the 18 votes, which gives him 157 votes,
and deduct the same number of votes from Eichardsou, which gives him
86 votes j this exactly corresponds with the names found on the tally-
list.

Correcting the vote at the precincts above set forth as we have, and
leaving untouched the other precincts of Marion County, and counting
them as returned by the managers, and the result is as follows :

Vote of Marion County.

Precincts.

As returned by the
State canvassers.

As corrected by the
committee.

Richardson.

Lee.

Eichardson.

Lee.

Hymansville

167
214
350
190
238
52
488
573
469
126
104
372
201
284
192

277

167
214
350
190
238
52
488
520
4G9
126
86
279
201
254
192

277

Evergreen

High Hill

74
74
116
5
153
522
230
105
139
168
415
111
56

74
74
116
5
155
576
230
105
157
261
415
141
56

Ken tyre Church

Old Ark

Little Eock

Mount Nebo

Friendship

Mars Bluff

Campbell's Bridge

3,826

2,640

1,186

We find a majority in this county for Eichardson of 1,186, in place

of 1,565, as returned for him by the State board of canvassers.

CHESTERFIELD COUNTY.

By the table of the secretary of state, Eichardson received in this
county 1,917 votes and Lee 1,066 votes (Eecord, p. 228).

The county board of canvassers did not transmit the poll-lists, re-
turns, and other papers appertaining to the election to the secretary of
state, as the law requires should be done (Eecord, p. 228). But the
evidence found in various parts of the Eecord goes to show that this is
a Democratic county.

The only poll attacked by Mr. Lee in his notice of contest is Cheraw
precinct. Mr. Eichardson shows (Eecord, p. 587) that the clerk of
the court certifies that the managers' returns, turned over to him, cor-
responded with the statement of the secretary of state. This certifi-
cate of the clerk is really of no force and effect. He was not by the
statute required or expected to make any such certificate. The law is
well settled that

Statute certifying officers can only make their certificates evidence of the fact which
the statute requires them to certify. And when they undertake to go beyond this and
certify other facts they are unofficial, and uo more evidence than the statement of any
unofficial person. (See McCrary, sec. 104.)

560 DIGEST OF ELECTION LAWS.

But there was an election held at Cheraw, and Thomas E. Smith, who
was one of the commissioners of election for that count}-, and was. pres-
ent at Cheraw, testifies as follows :

There were a great many more names on the poll-list than there were ballots in the
box, but how many I do not recollect.

Q. Was that defect remedied by the managers ; and, if so, how ? A. No, sir ; it was
not remedied. The managers called on Capt. A. A. Pollock, a lawyer, for his advice,
and he said in a case like that he did not know what to do. But if there were more
tickets in the box than there were names on the poll-list, he could easily tell them
what to do about it.

Q. How did the managers proceed to declare the result of the election under the cir-
cumstances? A. They did not take any steps about there being more names upon the
poll-list than ballots, but just counted the ballots in the box.

Q. Did they make any report in regard to their poll-list being in excess of the bal-
lots in the box to your board as county canvassers ? A. They did not, sir.

Q. Did you see any tissue ballots in the Cheraw box while the managers were can-
vassiug the vote ? A. Yes, sir.

Q. Did they count those tissue ballots to ascertain the result of the election T A.
Yes, sir ; they did count all of them.

Q. Were you present while the voting was going on during the day ? A. I was there
from 7.30 a.* m. until they got through at night.

Q. Did you see any tissue ballots voted during the day ? -A. No, sir ; there were
none voted openly.

Q. When was the first time that you saw any of those tissue tickets? A. Not until
the managers opened the box and commenced canvassing that night.

This testimony is not seriously controverted. A ticket printed upon
thin tissue paper, and admitted in the argument to be a fac simile of
some of those found in the Cheraw box, was put in evidence by contest-
ant. It was larger in size than the other "little jokers." And some of
the witnesses for contestee deny that tissue ballots were voted, evi-
dently meaning the "little jokers," about two inches long by one inch
wide. But two kinds of Democratic tickets were found in the ballot-
box at Cheraw, and one was printed on very thin tissue paper. We
have seen that the secretary of state had before him no statement of
what the vote was at Cheraw. The clerk's certificate is not evidence.
How the vote actually stood we do not know, and from the evidence on
file we cannot know. It appears that the returns were deposited with
the clerk, and the poll-lists turned over to the county auditor by the
board of county commissioners. (T. W. Bouchier, Record, p. 590.)

A manifest fraud was perpetrated at Cheraw. It is impossible to
determine what the true vote was.

Your committee have no alternative save to reject this poll. We
therefore deduct the reported vote of Cheraw, as shown by Mr. Rich-
ardson to wit, for Richardson 483 votes, and for Lee 458 votes from
the vote of the county, leaving for Richardson 1,434 votes, Lee COS votes,
giving a majority to Richardson of 826 votes, in place of a majority of
851 votes, as allowed him by the State board of canvassers.

Having gone over the entire district and purged the polls, precinct by
precinct, by the preponderating weight of evidence, and permitting every
precinct to stand where the matter was doubtful, and not clearly made
out, we tabulate the result as follows :

MACKEY VS. O CONNOR.

561

Counties.

Actual vote cast as
found by the com-
mittee.

Majorities.

Richardson.

Lee.

Richardson.

Lee.

Georgetown

791
2,395
2,164
2,186
2,395
2,129
3,826
1,434

3,101
4,272
2,576
771
1,884
1,752
2,640
608

2,310

1,877
412

Suniter

Williamsburg

Horry

1,415
511
377
1,186
826

Marlborough

Marion

Chesterfield

Majority for Mr. Lee in the district

17, 320

17,604

4,315

4,599
4,315

284

From which it appears that Samuel Lee was elected by a majority of
284 votes.
We therefore recommend the adoption of the following resolutions :

I. Resolved, That John S. Eichardson was not elected as a Eepresent-
ative to the Forty-seventh Congress of the United States from the first
Congressional district of South Carolina, and is not entitled to occupy
a seat in this House as such.

II. Resolved, That Samuel Lee was duly elected as a Kepresentative
from the first Congressional district of South Carolina to the Forty-
seventh Congress of the United States, and is entitled to his seat as
such.

A. H. PETTIBONE.
F. JACOBS, JR.
WM. G. THOMPSON.
J. M. EITCHIE.
JNO. T. WAIT.
GEO. C. HAZELTOK
A. A. EAKtfEY.

EDMUND W. M. MACKEY vs. O'CONNOR.

SECOND CONGRESSIONAL DISTRICT OF SOUTH CAROLINA.

E. W. M. Mackey contested the election for Representative in Congress held in the
second district of Sonth Carolina on November 2, 1880, at which M. P. O'Connor
was declared elected by the State board of canvassers, and the certificate of elec-
tion was issued to him.

Notice of contest was served on Mr. O'Connor, and he filed his answer. After the
testimony in chief of Mr. Mackey and that in reply of Mr. O'Connor was taken ?
Mr. O'Connor died, and on May 23, 1881, the governor of South Carolina ordered
a special election for a member of Congress " to serve for the remainder of the
term for which the said Michael P. O'Connor was elected."

At this special election Mr. Samuel Dibble was voted for and returned elected, and
he was sworn in under objection, and occupied a seat in the House as the suc-
cessor of Mr. O'Connor.

Mr. Dibble protested against any action being taken in this case on the ground that
the contest of Mackey vs. O'Connor abated on the death of Mr. O'Connor, and
H. Mis. 35 36

562 DIGEST OF ELECTION CASES.

the House had no longer jurisdiction of that case ; that as he was not a party to
the pleadings or proofs he should not be bound or affected by either ; and that
the title to his seat could only be assailed by proceedings de novo.

Held, that the right of Mr. Dibble to a seat in the House depended on the title of Mr.
O'Connor, and he must be bound by the pleadings, proofs, and decree legitimately
growing out of that contest.

The returns are corrected according to the evidence, and it appearing that Mr-
O'Connor was not elected, there was no vacancy created by his death and no re-
mainder of a term to be filled, and Mr. Dibble is not entitled to his seat.

The House adopted the majority report.

APRIL 10, 1882. Mr. S. H. MILLEE, from the Committee on Elections,
submitted the following

REPORT:

The Committee on Elections, to whom was referred the case of E. W.
M. Mackey, contesting the seat of M. P. O'Connor, now filled by Sam-
uel Dibble, who claims to hold the same by virtue of a special election y
ordered by the governor of South Carolina, to fill an assumed vacancy
occasioned by the death of M. P. O'Connor, occurring subsequent to
the date of the election on the 2d of November, 1880, and prior to the
assembling of the Forty-seventh Congress, submit the following report:

This contest comes from the second Congressional district of South
Carolina, composed of the counties of Charleston, Orangeburg, and
Clarendon. The election was held on the 2d day of November, 1880.
Two candidates were voted for E. W. M. Mackey and M. P. O'Connor.
The State board of canvassers, acting upon the returns made to them
by the county canvassers, declared Mr. O'Connor elected, and the cer-
tificate of election was accordingly issued to him.

Whereupon Mr. Mackey commenced this contest. The notice of con-
test and proofs submitted by Mr. Mackey and the answer and proofs
of Mr. O'Connor are contained in Mis. Doc. No. 15 of the present ses-
sion. The pleadings and proofs are quite voluminous. The notice of
contest contains, inter alia, the following specific allegations : .

2. That at the following voting precincts, to wit, City Hall, Court-house, Market
Hall, Palmetto Engine-house, Hope Engine-house, Eagle' Engine-house, Washington
Engine-house, Marion Engine-house, Niagara Engine-house, and Ashley Engine-house,
in the city of Charleston ; and Camp Ground, Enterprise, Tweuty-two-mile House,
Cross Roads, Hickory Bend, Biggin Church, Piuopolis, St. Stephens, Blackville, Ben
Potter's, Moultrieville, and Henderson's Store, in the county of Charleston ; and Orange-
burg, Branchville, Brown's, Corbettsville, Cedar Grove, Conner's, Fort Motte, Ayers',
Gleaton's, Lewisville, Easterlin's, Rowesville, Jamison's, Bull Swamp, Ziegler's, Wash-
ington Seminary, and Bookhardt's, in the county of Orangebnrg ; and Fulton, Fork,
Witherspoon's, Jordan, Manning, Packsville, Calhoun, and Motts, in the county of
Clarendon, a deliberate system of ballot-box stuffing was practiced by or with the
knowledge and assent of the managers of the election of said precincts, all of whom,
without a single exception, were of the same political faith as Mr. O'Connor, and in
every instance his political partisans and supporters ; that by reason thereof the vote
actually cast for Mr. Mackey was larger, and the vote actually cast for Mr. O'Connor
was smaller, than appears on the face of the returns made by the managers of elec-
tions at the voting precincts aforesaid; that the difference between the vote as act-
ually cast and the vote as returned by the managers aforesaid arises from the fact
that at each of the aforesaid polls numerous ballots bearing Mr. O'Connor's name for
Congress were fraudulently placed in the ballot-box for the purpose of creating an
excess of votes over voters, and thereby compelling the managers to draw out and de-
stroy the excess of ballots thus created in order to reduce the number of ballots in the

MACKEY VS. O'COXNOK. 563

box to the number of names on the poll-list ; that in drawing out of the box at each
poll the excess of ballots, fraudulently created as aforesaid numerous ballots bearing
Mr. Mat-key's name for Congress, and which had been legally voted, were drawn oul
and destroyed, and in their place was counted a corresponding number of ballots with
Mr. O'Connor's name for Congress thereon which had not been legally voted.

'A. That the returns made to the State board of canvassers by the commissioners of
elections of Charleston, Orangeburg, and Clarendon Counties of the result of the elec-
tion in said counties do not contain true and correct statements of the votes cast for a
member of Congress in said counties.

4. That in Orangeburg County the commissioners of elections refused to count and
canvass and include in their statement of the result of the election the votes cast, can-
vassed, and duly returned for a member of Congress at the following voting precincts,
to wit : Louisville, Fort Motte, Fogies, and Bookhart.

5. That in Charleston County the commissioners of elections refused to count and
canvass and include in their statement of the result of the election the votes cast, can-
vassed, and duly returned for a member of Congress at the following voting precincts,
to wit: Calamus Pond, Strawberry Ferry, Biggin Church, Black Oak, Ten-Mile Hill,
Brick Church, and Enterprise.

6. That at Haut Gap voting precinct in the county of Charleston 1,037 were cast
for contestant, and 46 votes were cast for contestee, and at the close of the election
the said votes were duly counted and canvassed, and that the ballots cast at the elec-
tion, together with a statement of the result and the poll-list at the close of the can-
vass by the managers, were put in the box, the box covered with paper and sealed
with wax and delivered to J. H. Wilson, one of the managers, to be delivered by him
to the county canvassers. That the said manager brought the box with the seals un-
broken and delivered it to the county canvassers; that at the time of its said delivery
to the county canvassers it contained the ballots as cast ; that subsequent to its deliv-
ery to the county canvassers the said box was violated, and when publicly opened the
return could not be found ; that the ballots had been changed and other ballots fraudu-
lently placed therein, and when so counted by the county canvassers they announced
1,051* votes for Mr. O'Connor and 19 votes for Mr. Mackey.

There are other allegations of fraud : illegal and fraudulent conduct of
officers of elections ; illegal and fraudulent tampering with ballot-boxes,
and false returns of the actual number of votes cast, but those above
specified the committee regard as the most material.

The answer of Mr. O'Connor denies the second and third allegations,
virtually admits the fourth and sixth, and admits the fifth, and avers that
threats, acts of intimidation and violence were perpetrated by the par-
tisans and supporters of Mr. Mackey, thus overawing the peaceable and
quiet colored men who desired to vote for him (Mr. O'Connor), and pre-
venting them from so doing, many, through fear, staying at home and
not ceming out to vote, and many by duress voting for Mr. Mackey
against their will.

After the testimony in chief of Mr. Mackey, and that in reply of Mr.
O'Connor had been taken, Mr. O'Connor died, on April 26th, 1881, and
on the 23d day of May, 1881, the governor of South Carolina, assuming
that a vacancy was caused in the representation of the State, by Mr.
O'Connor's death, ordered a special election to fill the same. At that
special election Mr. Samuel Dibble, the sitting member, was voted for
and returned elected, receiving but 7,344 votes, in a district that on
November 2, 1880, Mr. O'Connor claimed gave him 17,569 votes.

There was no opposing candidate, the Eepublicans of the district
holding that Mr. Mackey, and not Mr. O'Connor, had been elected on
November 2, 1880, and therefore the death of the latter had created no
vacancy. Upon the certificate of election presented by Mr. Dibble he
was sworn in, under objection, and now occupies a seat in the House
as the successor of Mr. O'Connor.

At the commencement of the hearing, the sitting member protested
against the committee taking any action whatever upon the case, on
the ground that the contest of Mackey vs. O'Connor abated on the death
of Mr. O'Connor, and that the House had no longer jurisdiction of that

564 DIGEST OP ELECTION CASES.

case. He contended that inasmuch as he was not a party to the plead-
ings or proofs, he should not be bound or affected by either; that the
only way the title to his seat could be assailed was by commencing pro-
ceedings de novo, and permitting him to defend Mr. O'Connor's claim.

In the opinion of the committee this position is utterly untenable.
The contestant, Mr. Mackey, bases his claim upon the ground that he,
and not Mr. O'Connor, received the greatest number of legal votes at
the general election held November 2, 1880. To establish his claim,
the provisions of the statute regulating the mode and manner of con-
testing an election were invoked and complied with. Notice of con-
test was duly served upon Mr. O'Connor, who, in turn, put in an answer
thereto, and upon the issue thus made up a large mass of testimony, as
heretofore stated, was taken.

The right of the contestant, as also of the people of that Congres-
sional district, who, after all, are the real parties in interest,to have the
facts of that election inquired into and adjudicated by the Hous^e, can-
not be changed by the fact of the death of the coutestee. If tfie con-
testant really received at that election, as he claims, the largest num-
ber of legal votes, it is his right and the right of the people of that dis-
trict that he be awarded the seat he was chosen to fill. The committee,
however, are of opinion that Mr. Dibble, if elected to any position, was
elected to fill a vacancy created by the death of Mr. O'Connor, and for
his unexpired term.

This conclusion is emphasized by the significant language used in the
proclamation of the governor ordering the special election by virtue of
which Mr. Dibble claims the seat. It is as follows :

STATE OF SOUTH CAROLINA,

EXECUTIVE CHAMBER,
COLUMBIA, S. C., May 23, 1881.

To the commissioners of election and the managers of election for the counties of
Charleston, Orangeburg, and Clarendon, composing the second Congressional dis-
trict of the State of South Carolina :

Whereas a vacancy in the representation of the said second Congressional district
in the House of Kepresentatives of the United States of America has happened, by
the death of Michael P. O'Connor, who, at the general election held November 2, A. D.
1880, was chosen a member of said House of Representatives for said Congressional
district for the term of two years from March 4, A. D. 1881 ; and whereas the Consti-
tution of the said United States in such cases requires the executive authority of the
State to issue a writ of election to fill such vacancy :

Now, therefore, you and each of you are hereby required to hold an election in ac-
cordance with the laws for holding general elections for a member of the said House
of Representatives for the said Congressional district, TO SERVE FOR THE REMAINDER

OF THE TERM FOR WHICH THE SAID MICHAEL P. O'CONNOR WAS ELECTED ; the

polls to be opened at the various places of election in the said counties on Thursday,
the ninth day of June, A. D. 1881, by the various sets of managers for those places
respectively.

Given under my hand and the seal of the State of South Carolina, this 23d day of
May. in the year of our Lord one thousand eight hundred and eighty-one.

JOHNSON HAGOOD

Governor.
R. M. SIMS,

Secretary of State.

The right of Mr. Dibble to a seat in the House depends upon the title
of Mr. O'Connor. By the very language of the proclamation he was a
candidate ''to serve for the remainder of the term for which the said
Michael P. O'Connor was elected ; " and if it appears from the proofs
that Mr. O'Connor was not elected, then there was no vacancy created
by his death, no remainder of a term to be filled, and Mr. Dibble could
have no rights to be prejudiced by any pleadings or agreements made

MACKEY vs. O'CONNOR. 565

by Mr. O'Connor. In consenting to be a candidate to serve for the re-
mainder of the term, for which Mr. O'Connor claimed to have been elected,
Mr. Dibble rested his title to 1 he seat in dispute upon the title of his prede-
cessor, and he must be bound by the pleadings, proofs, and decree grow-
ing legitimately out of that contest. To insist that Mr. Mackey should
abandon the testimony taken in the case prior to the death of Mr. O'Con-
nor and all of it was taken prior thereto except the evidence of con-
testant in rebuttal, and which is not material so far as the true issue is
concerned and commence anew a contest with Mr. Dibble, involving
the same specifications of contest, is, in the opinion of the committee,
not only vain but in conflict with every principal of law and equity.

It was claimed by the counsel of Mr. Dibble in argument that if, after
the testimony had been taken Mr. O'Connor had resigned, an election
ordered by the governor to fill the assumed vacancy, and a successor
elected, the contest between the original parties would abate as fully
as if the contestee had died. These propositions must both stand or
fall together. If such was the law there would be nothing to prevent
a contestee from abating a contest at any time at his own volition. If,
after the testimony had been taken, the contestee should be forced to
conclude that his case was hopeless, it would only be necessary for him
to resign, have the governor order a new election, again be a candidate,
with a hope that under circumstances more favorable to him and his
party he might succeed. Assured that his former certificate was proven
worthless he would have nothing to lose, and if successful in receiving
a majority at the second election he would be enabled thereby, by his
voluntary resignation, to escape the effect of the frauds perpetrated by
him or his partisan supporters at the first election. It is only necessary
to state the proposition to make manifest its fallacy.

After the committee had settled the foregoing question the sitting
member made a second motion to suppress the testimony taken in the
case, alleging that the testimony as printed was not the testimony as
originally taken, but that the same had been subsequently altered and
perverted by the contestant. In support of this motion Mr. Dibble
submitted a number of ex parte affidavits. It was further charged that
the technical requirements of the statute in reference to taking testi-
mony in contested elections had not been complied with, either in the
transcribing of the depositions in their attestation or in the manner of
their being forwarded to the Clerk of the House. To meet the first and
really only serious charge the contestant filed the affidavits of eighty-
three of the ninety -four witnesses examined by him, each of whom de-
posed that he had carefully read his deposition, as contained in the
printed record, and that the same was in every particular the deposition
made by him before the notary public, and that there had been no gar-
bling or alteration in or addition thereto, and they each again made
oath to the truth of the matters and things therein contained. The no :
tary who, by agreement of Mr. Mackey and Mr. O'Connor, took the tes-
timony steuographically, also made oath that in the limited time given
him he had compared with his stenographic notes the depositions of
fourteen witnesses as printed in the record, and that the depositions as
printed correspond in every particular with the original stenographic
notes of such depositions. *The names of the witnesses are: S. W. Mc-
Kinlay, J. G. Smalls, J. J. Lessene, G. H. F. Graham, St. Cyprian De-
lany. F. H. Carrnand, George E. Hart, Benjamin Moultrie, J. J. Moore,
M. Coalfield, Nestor Carrey, E. A. Webster, T. C. Albergotti, and T. A.
Huguenin, and their testimony will be found in the record by reference
to the index thereto.

566 DIGEST OF ELECTION CASES.

After due consideration of these ex parte affidavits of the witnesses
themselves, and of the notary and stenographer, the committee are sat-
isfied that the testimony as printed is the same as when first taken, and
that it has not been in any way altered or perverted to the prejudice of
Mr. Dibble. There was ample time given Mr. Dibble to have obtained
evidence from the stenographer that the deposition of any witness, as
printed, was compared by him with the original stenographic notes in
his possession, and that the same had been altered, perverted, or
changed; yet it is somewhat remarkable that no such evidence has been
offered or suggested to the committee.

The provisions of the statute in regard to the form and manner of tak-
ing and forwarding testimony in contestede-lection cases are merely
directory, and therefore the only question which the committee has
deemed it necessary to consider upon this point has been whether the
essential provisions of the law had been complied with ; that is, had the
testimony of the witnesses been correctly reported by the notary and
stenographer, and had that testimony been forwarded to the House. If
Mr. Dibble had shown by proper evidence that the depositions before
the committee were not the depositions of the witnesses (and he could
have done this by the ex parte affidavit of the stenographer, if such was
the case), he would have disclosed a matter fatal to their consideration.

But, inasmuch as there is but a single affidavit tending to show such a
state of facts, which is contradicted directly, so far as the notary had
examined his original notes, by the evidence of the stenographer, and
also by the affidavits of eighty-three of the witnesses themselves, it
surely cannot be considered that he has maintained the truth of his
charge. The burden of proof was upon him to reasonably satisfy the
committee, by a preponderance of e\ idence, of the truth of the facts al-
leged in his protest ; this the committee finds he has not done. The
affidavits submitted by the contestant in answer to Mr. Dibble's protest
are un contradicted by any affidavit filed by the latter, and they estab-
lish the fact that the testimony, as found in the printed record, is in
every particular the testimony actually given by the witnesses, and
taken stenographically by the notary, and afterwards transcribed by his
direction. It is not controverted that the evidence was, by the agree-
ment of Mr. Mackey and Mr. O'Connor, taken stenographically by the
notary. These stenographic notes are the original evidence of what the
witnesses deposed. They were taken necessarily in the notary's presence,
who was also the stenographer. They were really the depositions in the
cause. By the stipulations it was agreed that these stenographic notes
should be afterwards transcribed. The manner in which they were
transcribed, and by whom transcribed, is a matter of no importance,
providing they were transcribed correctly, since the notary public ac-
cepted the work as performed by the copyists, and certified to the same
as being the depositions taken by him. The fact that the contestant
assisted in making transcripts of this evidence does not detract from its
correctness. It was within the power of Mr. Dibble to have shown by
the stenographer, in whose possession the original notes are yet, that
the evidence of a single witness, as printed, was subsequently compared
by him, and found by him to be incorrect, if such had been the case.
The committee has a right to conclude, in view of the persistency man-
ifested by counsel in this case, that it was impossible to get such evidence
from the stenographer. The committee, therefore, conclude that the
depositions as printed were the depositions of the witnesses actually
taken by the stenographer, and they therefore proceed to a considera-
tion of the testimony to determine the merits of the case.

MACKEY vs. O'CONNOR. 567

Under the election laws of South Carolina the governor of the State,
prior to each general election, appoints for each county in the State
three commissioners of elections. These commissioners of elections ap-
point for each poll in their respective counties three managers of elec-
tions (Rev. Stat., Title II, chap, viii, sec. 2). By the managers so ap-
pointed the election at each poll is conducted, and at its close the votes
counted and a return thereof made to the commissioners of elections
(15 Stat., 171), who, on the Tuesday next following the election, meet
and organize as a board of county canvassers, and from the returns
made to them by the managers, they count or canvass the votes of the
county and make such statements thereof to the State board of can-
vassers as the nature of the election requires making for Representa-
tive in Congress "separate statements of the whole number of votes
given in such county " (Eev. Stat., Title II, chap, viii, sees. 15-18). From
these statements of votes made by the county canvasser, the board of
State canvassers determine and certify the number of votes cast for the
different candidates for the various offices voted for, and declare what
persons have been by the greatest number of votes duly elected to such
offices. (Ibid., sees. 24-26.)

Acting upon the returns made by the county canvassers of Charleston,
Orangeburg, and Clarendon, the counties composing the second Con-
gressional district of South Carolina, the State board of canvassers cer-
tified and declared that at the election held November 2, 1880, the vote
cast for Representative in Congress from the said district was as follows
(Rec., p. 11) :

M. P. O'Con-
nor.

E. W. M.
Mackey.

11 429

8,112

Orangeburg

3,627

2,712

2,513

1,473

Total .....

17, 569

12,297

12, 297

5 272

Although the vote certified by the State board of canvassers is a cor-
rect aggregate of the vote returned to it by the county boards of can-
vassers, it is not a true statement of the result of the election, because
the returns made to the State board of canvassers by the county can-
vassers of Charleston and Oraugeburg, upon which the State board
acted, were not full and correct statements of the vote cast in those
counties. Had the county canvassers in the three counties in the dis-
trict counted the vote as returned to them by the managers of the elec-
tion of the several precincts in the several counties, the result would
have been a majority of 879 for Mr. Mackey. These managers in every
instance and at every poll in the district were of the same political faith,
and were the partisan supporters of Mr. O'Connor. The majority cer-
tified for Mr. O'Connor by the county board of canvassers, all of whom
were Democrats, was obtained by entirely reversing the vote of one,
Haut Gap, and leaving out in the final count seven precincts in Charles-
ton County, to wit: Black Oak, Strawberry, Calamus Pond, Biggin
Church, Brick Church, Ten Mile Hill, and Enterprise; and four in
Orangeburg County, to wit: Fogies, Fort Motte, Lewis ville, and Book-
hardt's. The committee briefly call attention to these twelve precincts.
There is no dispute about the vote in any others.

568 DIGEST OF ELECTION CASES.

HAUT GAP.

In the statement of the vote of Charleston County, made by the
county canvassers of that county, were included 1,052 votes for Mr.
O'Connor and 19 for Mr. Mackey, as having been cast at Haut Gap pre-
cinct, when in truth and in fact the vote actually cast and counted by
the managers at that poll was 46 for Mr. O'Connor and 1,037 for Mr.
Mackey. Such was the return made by the managers, and sealed up
in the box, but after the delivery of the ballot box to the county can-
vassers the seals were broken, the returns of the managers abstracted
from the box, and the ballots originally cast by the voters taken out,
and others substituted therefor, so that when the box was publicly
opened by the county canvassers, instead of there being in it 46 votes
for Mr. O'Connor and 1,037 for Mr. Mackey, and a return to that effect,,
there were 1,052 votes for Mr. O'Connor and only 19 for Mr. Mackey,
and no return whatever. Without making any effort to ascertain what
had become of the return, the county canvassers counted the fraudulent
ballots found in the box and included the result of their count in the
statement of the vote of the county, although before their adjournment
positive proof of the correct vote and of the violation of the box was
furnished them.

BLACK OAK.

The vote as returned by the managers for this precinct was :

For Mr. Mackey 393

For Mr. O'Connor 11

This vote is established by the evidence of S. W. McKinlay, one of
the election supervisors (p. 163), and by the sworn return of the board
of managers of the precinct (p. 167), and disputed by no one.

STRAWBERRY FERRY.

The vote as returned by the managers for this precinct was :

For Mr. Mackey 573

For Mr. O'Connor 90

This vote is established by John G. Smalls, one of the supervisors,
who testified that the number of ballots corresponded with the number
of names on the poll-list ; that the managers counted and canvassed the
votes in his presence, declared the result, and signed the return in his
presence (p. 168). Two of the managers who conducted the election at
the poll were examined by Mr. O'Connor, and they do not deny the cor-
rectness of the vote (pp. 420, 433).

CALAMUS POND.

The vote as returned by the managers of this precinct was :

For Mr. Mackey 511

For Mr. O'Connor 119

This vote is established by J. J. Lessene, one of the supervisors, and
signed by him and the Democratic supervisor (pp. 172, 173). One of
the managers was examined by Mr. O'Connor, and be did not attempt
to deny the correctness of the vote.

MACKEY vs. O'CONNOR. 569

BIGGIN CHURCH.

The vote as returned by the managers of this precinct was :

For Mr. Mackey 380

For Mr. O'Connor 53

This vote is established by the evidence of Gr. H. F. Graham, one of
the supervisors (p. 178). He testifies that there was an excess of 14
votes in the box at the close of the polls, as compared with the poll-
lists; that all the Eepublican voters folded up their tickets in the pres-
ence of the managers to show them that they voted but one ticket ;
that in drawing out the excess of 14 votes the manager drew out 13
Eepublican tickets and but one Democratic ticket; and that at the close
of the election the managers counted the votes as above, and made out
and signed the return and put it in the box. Two of the managers
were examined by Mr. O'Connor, but neither denied the correctness
of the above vote.

BRICK CHURCH.

The vote as returned by the managers of this precinct was :

For Mr. Mackey 732

For Mr. O'Connor '. 16

This vote is established by F. H. Carmand, one of the supervisors.
He testified that there was no excess of ballots, that the managers
counted and canvassed the votes in his presence, made a return thereof
and sealed it up, and that it corresponded with the above (p. 185).
Mr. O'Connor examined one of the managers, but he did not dispute
the above in any particular.

TEN-MILE HILL.

The vote as returned by the managers of this precinct was :

For Mr. Mackey 603

For Mr. O'Connor 5

This vote is established by G-. St. Cyprian Delany, one of the super-
visors. He testified that he saw the managers canvass and count the
votes and make out and seal up the return, and that it corresponded
with the above statement (p. 180). Mr. O'Connor examined one of
the managers (T. B. Curtis), but he does not deny the correctness of
this vote.

ENTERPRISE.

The vote as returned by the managers of this precinct was :

For Mr. Mackey 385

For Mr. O'Connor 161

This return is established by Robert Simmons, one of the supervisors
(p. 190). He testifies that the Republicans voted an open ticket until
about 200 had voted, when Mr. Schaffer, a leading Democrat, objected,
and said if it was not stopped he would protest the election and the
whole box would be thrown out. After that the Republican voters
folded their tickets. At the close of the poll there was an excess of
139 ballots in the box, and one of the Democratic managers drew out
this excess. In doing so he drew out 101 Republican tickets and only

570 DIGEST OF ELECTION CASES.

38 Democratic tickets. After this was concluded the managers can-
vassed and counted the votes. Mr. O'Connor examined the Democratic
supervisor and one of the three managers, both of whom corroborate
the correctness of the vote returned after drawing out the 139 ballots
referred to above.

FOGLE'S.
The vote as returned by the managers of this precinct was :

For Mr. Mackey . 254

For Mr. O'Connor 40

This vote is established by Nester Curry, one of the supervisors, who
testifies that he saw the managers canvass and count the vote, and sign
and seal the return (p 282). This is corroborated by the evidence of T.
C. Albergotti, one of the county canvassers (p. 291), and it is disputed
by no one.

FORT MOTTE.

The vote as returned by the managers of this precinct was:

For Mr. Mackey 279

For Mr. O'Connor 85

This vote is established by the evidence of Benj. Moultrie (p. 279), T.
C. Albergotti (p. 291), and by one of the managers, James A. Peterkiu,
and disputed by no one. It is uncontradicted that the Republicans
voted an open ticket, showing that they voted but one ticket, yet at
the close of the poll there was an excess of ten tickets in the box. In
drawing out this excess the Democratic managers drew out 9 Repub-
lican tickets and 1 Democratic.

LEWISVILLE (OR SAINT MATHEWS).

The vote as returned by the managers of this precinct was :

For Mr. Mackey ^ 700

For Mr. O'Connor 236

This return is established by J. J. Moore, one of the supervisors (p.
286), and by T. C. Albergotti (p. 291). The evidence is uucontradicted
that^ all the Republican voters came to the ballot-box with an open
ticket and folded it up in the presence of the managers (pp. 287, 628),
showing that each voted but one ticket, and yet at the close of the poll
a large excess of tickets was found in the box. There were forty -five
packages of tickets containing more than one ballot (generally from 3
to 5 and sometimes as high as 7), all of them Democratic, the narrow
tickets being folded inside of the larger one (p. 287). On the demand
of the Republican supervisor all the tickets thus found in each pack-
age were destroyed but the inside one, but notwithstanding this there
was still an excess found in the box of 52 ballots. In drawing this ex-
cess out the manager drew out 40 Republican tickets and ouly 1(2 Dem-
ocratic. After this "purification" there still remained the vote as above
returned by the Democratic managers.

BOOKHARDT'S.
The vote as returned by the managers of this precinct was :

For Mr. Mackey 212

For Mr. O'Connor... . 69

MACKEY vs. O'CONNOR. 571

The above vote is established by the evidence of George E. Hart, one
of the supervisors, and corroborated by the evidence of A. Lathrop, who
was cross-examined by Samuel Dibble, the sitting member. The man-
agers of the election, after they had counted the ballots as above, put
the ballot-box into the hands of George E. Hart, one of the supervisors,
for delivery to the county canvassers ; Hart handed it over to Mr. La-
throp, who took it to the board of county canvassers, but the board de-
clined to receive the box, and refused to count the ballots therein. The
managers of the election were not even called by the contestee to con-
tradict the result of the vote in the precinct as testified to by Mr. Hart,
who saw them count it as above on the evening of the election, and
whose return is also in evidence.

This is a brief statement of the number of votes cast and canvassed
at these eleven polls rejected by the county board of canvassers of
Charleston and Oraugeburg Counties. It is true that Mr. O'Connor in
his answer set up that these polls were thrown out because " threats,
acts of intimidation, and violence were perpetrated by the partisans and
supporters of Mr. Mackey," "to the serious interference with the man-
agers of election in the discharge of their duties, and to the prevention
of a free and fair election," but he utterly failed to establish the charges
in his answer. Not a single manager testifies that they were overawed
and forced to make a miscount ; the farthest they go is that they believe
many colored men would have voted for Mr. O'Connor if they had been
left to their own free choice. The committee find that every allegation
set up by Mr. O'Connor for the rejection of these polls is unsupported
even by the testimony of his own witnesses. The reports of the con-
tested-election cases for the last eighteen years do not show a more
systematic effort to override the will of the people as expressed at the
ballot-box than does this case. Ballot-boxes were stuffed in the in-
terest of Mr. O'Connor, and when the excess was discovered on opening
the box, the drawing-out process always resulted in the interest of Mr.
C'Conuor. A whole poll Haut Gap was reversed, making a fraudu-
lent change of over two thousand votes in favor of Mr. O'Connor, and
to cap the climax of fraud and perjury perpetrated by the managers of
the election all of whom were Democrats precinct after precinct that
had given Mr. Mackey majorities was thrown out by the county can-
vassers all of whom were Democrats until a false, fraudulent, and
perjured majority was exhumed from this iniquity of 5,272 in favor of
Mr. O'Connor.

But aside from this, it was the duty of the county canvassers of
Charleston and Orangeburg to have gone forward and canvassed
the vote returned to them from these 11 precincts. In the election
laws of South Carolina, so far as a member of Congress is concerned,
there is absolutely nothing authorizing county canvassers to pass upon
the validity of an election, and to decide whether or not the votes there
cast are to be counted and canvassed. Such is the effect of the decision
of the supreme court of that State, ex parte Mackey et al. vs. Canville
et a/., rendered upon an appeal taken by the contestant upon an appli-
cation to one of the circuit judges for the writ of mandamus to compel
the county canvassers of Charleston to count the votes of two of the
polls rejected by them. Under the decision of the supreme court the
vote of the eleven polls rejected by the county canvassers of Charleston
and Orangeburg ought now to be added to the vote certified by the
State board of canvassers, provided the vote of those polls is established
by the evidence of contestant. In the opinion of the committee, the
vote of each of these polls is fully established by the testimony, and

572

DIGEST OF ELECTION CASES.

there is nothing whatever in the testimony of contestee to invalidate
the election of any one of them.

By making the necessary correction in the vote of Haut Gap, because
of the fraudulent change in the vote of that precinct, and by adding
the vote of the eleven polls rejected by the county canvassers of Charles-
ton and Orangeburg, the contestant would have a majority of 879 votes,
according to the returns made by the managers of the election, as will
be seen by the following table :

M.P.
O'Connor.

E. W. M.

Mackey.

Vote ceitified and declared by the State board of canvassers

17 569

1 9 97

Deduct the vote fraudulently returned by the county canvassers of Charles-

1 052

Add the correct vote of Haut Gap, as it was counted and returned by the

16, 517
46

12, 278
1 037

Add the vote of the following polls, which the county canvassers of Charles-
ton and Orangeburg refused to count and canvass as required by law, to
wit:
Calamus Pond

16, 563
119

13, 315
511

Strawberry

573

Biggin Church

63 "

380

Enterprise

161

385

Brick Church

732

Ten-Mile Hill

603

Black Oak

393

Fogle's ...

254

Fort Motte

'>79

Lewisville

236

700

Bookhardt's .-

212

Total vote as counted and returned by the managers of the election

17, 458

18,337
17, 458

Majority for E. W. M. Mackey

879

BALLOT-BOX STUFFING.

Although this majority of 879, shown to have been returned by the
managers of the elections to the county canvassers, is sufficient to en-
title the contestant to be seated, nevertheless the committee cannot re-
frain from calling attention to the fact that the testimony shows that
the contestant actually received a very much larger majority, and that
it was reduced to 879 by a uniform system of ballot-box stuffing by
causing to be put in the ballot-boxes at a majority of the polls in the
Congressional district an excess of votes over voters on the poll-lists,
and then by drawing out a number of ballots equal to that excess an
operation by which the vote of Mr. Mackey was reduced, and the vote
of Mr. O'Connor greatly increased.

In reference to these frauds the contestant in his notice of contest
(specification 2, Record, p. 1) charged that at certain precincts the vote
actually cast for him was larger and the vote actually cast for the con-
testee was smaller than appeared on the face of the returns made by the
managers of the election at those precincts ; that the difference between
the vote as a-ctually cast and the vote as returned by the managers
arose from the fact that at each of those polls numerous ballots, bear-
ing contestee's name, were fraudulently placed in the ballot-box for the
purpose of creating in them an excess of votes over voters, and thereby
compelling the managers to draw out and destroy the excess of ballots
thus created, in order to reduce the number of ballots in the box to the

MAC KEY VS. CONNOR.

573

number of names 011 the poll-list; that in drawing out of the box at
each of those polls the excess of ballots so created, numerous ballots
with contestant's name thereon, which had been legally voted, were
drawn out and destroyed, and in their place was counted a correspond-
ing number of ballots with coutestee's name thereon which had not
been legally voted.

Neither in the answer of the contestee, nor in the testimony produced
in his behalf, is there any denial of the fact that, at the polls referred
to by the contestant, the ballots in the boxes, upon being counted at the
close of the election, were found to be largely in excess of the number
of persons recorded on the poll-lists as having voted at those polls. The
extent to which the ballots in the boxes exceeded the number of names
on the poll-lists at these polls is indicated in the following table, which
exhibits, according to the testimony, the number of names recorded on
the poll-list kept at each poll by the managers, the number of ballots
found in the box, and the amount of the excess of ballots over voters :

Number of
names on
poll-list.

Number of
ballots in
the box.

Excess of
ballots over
voters.

CHARLESTON COUNTY.

City Hall

1 729

1 934

Court-House

628

763

135

Market-Hall

1 125

1 196

Palmetto E.H

1 501

1 568

Hope E. H

1 218

2 289

1 071

a<*le E.H

1 433

2 002

569

Washington E. H

458

*837

379

1 141

1 798

657

AshleyE H

912

1 150

238

NiAg&ra E. H

547

642

870

889

546

685

139

T went v-two Mile House....

599

604

Cross- ftoads

222

231

Muster Houae

723

754

826

1 016

190

467

481

216

255

532

600

Blackville

241

248

Ben Potter's

163

222

Henderson's Store

184

219

16, 281

20,383

4,102

OBANGEBUBG COUNTY.

1 093

1 165

395

409

156

174

488

582

304

332

199

230

Fort Motte

377

387

388

417

436

936

988

449

556

107

238

264

406

477

384

554

170

290

394

104

465

544

Bookhardt's -

281

298

7,266

8,207

941

CLARENDON COUNTY.

Fulton ..

354

502

148

476

552

648

906

258

Manning . . .

634

1,032

399

574

DIGEST OF ELECTION CASES.

X umber of
names on
poll-list.

Number of
ballots in
the box.

E x c e a 8 of
ballot 8 over
voters.

CLARENDON COUNTY Continued.

377

455

1,043

1 288

245

3,532

4,736

1,204

Recapitulation

16 281

20 383

4 102

7,266

8,207

941

3,532

4,736

1 204

27, 079

33, 326

6,247

This large excess, occurring, as it did, at over two-thirds of the polls
in the district, warrants the conclusion that the excess at those polls
was not the result of mere accident or local manipulation, but of a well-
defined and matured plan.

It is in evidence that the Eepublican voters throughout the district,
in accordance with the advice publicly given them (and at one meeting
in the presence of Mr. Dibble, the sitting member), by the contestant
and his partisan supporters, went to the polls with open tickets, exhib-
iting them to the managers and supervisors so that they could see that
they each had but one ballot, folding' them in the presence of these offi-
cers, that they might be satisfied that they cast but one vote. In addi-
tion to this thee[vidence discloses the fact that at every precinct through-
out the district the three managers and clerk, without exception, were
the political partisans and supporters of Mr. O'Connor. The only offi-
cer present of the same political faith with Mr. Mackey was the super-
visor. If he did not closely watch the voters as they approached the
polls, and supervise the clerk whose duty it was to take down their
names, it was possible for the clerk to add names to the poll-list who
had not voted. While thus employed it was possible for one of the
three managers to manipulate the ballot-box, which actually was done
at 45 precincts, and 6,247 votes stuffed into these 45 ballot-boxes by the
managers thereof, or by their connivance. To assume that this was
done by the "peaceable and quiet colored men" who supported Mr.
Mackey, in the presence of these managers of opposite political faith, is
to attribute a degree of stupidity on the part of these Democratic man-
agers, and of courage on the part of these "peaceable and quiet colored
men" who supported Mr. Mackey which is not warranted by the evi-
dence in this case. The very violence of the presumption is its re-
joinder.

Without the connivance of these managers of the election it is very
evident that the ballot-boxes could not have been stuffed to the extent
that they were ; and it is equally as evident that without their active
co-operation the contestee could not have benefited to the extent that
the testimony proves he did, by the process of drawing out and destroy-
ing surplus ballots.

The evidence shows that two kinds of Democratic ballots were gen-
erally used at every poll, one larger than the other, and the smaller one
as a rule printed on fine tissue paper, so that it was possible to fold a
number of the smaller ballots within the folds of the larger one. In
the boxes at many polls ballots bearing the name of Mr. O'Connor were
frequently found inclosed in ballots also bearing his name and folded
together in packages of 2, 3, 4, and upwards as high as 23.

MACKEY vs O'CONNOR.

575

A further proof that the excess of ballots found in the ballot-boxes
was put there by the partisans and supporters of Mr. O'Connor is af-
forded by the fact that at several polls the number of Democratic tickets,
with the name of the contestee thereon, found in the box was actually
greater than the whole number of persons who voted at those particular
polls. Such was the case at the following polls in Charleston County :

o fl

+>"- (

s'a .

|<2*

w 2

P a j

s g

"0-5

iji

o
"o

I'll

s *^ ??

t^.

1 683

9 218

465

589

458

131

177

163

A REMARKABLE DOCUMENT.

In accounting for this systematic pollution of the ballot-box the com-
mittee is not left to inference. It is in evidence that the chief super-
visor of the State instructed the precinct supervisors to set forth in their
reports the number of ballots, if any, found in excess of the names on
the poll-list, and to designate the character of the ballots drawn out
and destroyed by reason of such excess. The chairman of the Demo-
cratic executive committee of the State, assuming upon which party
the loss was to fall by the process of drawing out and destroying bal-
lots, and to prevent, if possible the evidence from being obtained of
the extent to which the Democratic candidates should profit by that
process, issued the following circular, dated seven days prior to the elec-
tion:

ROOMS OF THE STATE DEMOCRATIC EXECUTIVE COMMITTEE,

Columbia, S. C., October 27, 1880.

To ,

County Chairman:

DEAR SIR : The attention of the State executive committee has been called to the
instructions issued by Chief Supervisor Poinier to the supervisors of election in this
State. These supervisors are directed to report " the number of ballots drawn out of
the ballot-box and destroyed by the managers of election, because of the excess of
votes over names on the poll-list"; also the number of such ballots that "bore the
names of Republican candidates" and the number which bore the names of the Dem-
ocratic candidates and Greenback candidates.

The instruction to report the character of the ballots drawn out and destroyed is
unauthorized and illegal. The State election law, by which alone you are governed,
requires (see compilation of Election Laws, section 12) that " if more ballots shall be
found on opening the box than there are names on the poll-lists, * * F one of the
managers or the clerk, without seeing the ballots, shall draw therefrom and immediately
destroy as many ballots as there are in excess of the number of names on the poll-list."
You will, therefore, instruct the managers of election throughout your county at
once that they must not alloio the supervisors to see or inspect any ballots drawn from the
box in excess of the number of names on the poll-list, in order to ascertain for whom
such ballots were cast. The ballots must be drawn without being seen, and must be
immediately destroyed, as the law directs.

By order of the committee.

JOHN BRATTON,

Chairman.

The positive language in which the chairman of the Democratic party
of each county is commanded by the chairman of the State committee
to instruct the managers of election in their respective counties shows
how completely the managers of election were under the control of the
Democratic executive committee of the State. If the partisans of Mr.

576

DIGEST OF ELECTION CASES.

O'Conuor desired a fair election, why this anxiety on the part of the
managers of his party to obliterate the evidences of their fraud and seek
to make it impossible to discover the effect of the same ?

Wherever the ballots in the boxes, upon being counted at the close of
the election, were found to exceed the names on the poll-lists, all the
ballots were returned to the boxes and the managers drew therefrom
and destroyed a number of tickets equivalent to the excess, in order to
make the number of votes correspond with the number of voters on the
poll-li?ts as kept by the clerk. Owing to the great difference in the text-
ure of the Democratic and Republican ballots, the person drawing out
the excess could easily distinguish the difference between the two. The
table which here follows, and which is abundantly supported by the
evidence, is the best proof of this fact :

Republican bal-
lots drawn out.

Democratic bal-
lots drawn out.

Page of record.

CHARLESTON COUNTY.

135

Market Hall

Eao-le E. H

550

Marion E . 1 1 .... . .............. ...

500

157

Niagara E. H

101

191

Twenty -two-Mile House

131

109

Biggin Church......

175

Saiut Stephen's

102

Blackville

105

Camp Ground ....

207

Cross-Roads

208

OKANGEBUBG COUNTT.

Orangeburg Court-House

213

236

Cedar Grove ....

260

238

Fort Motte

280

220

Lewisville

287

100

217

244

225

276

CLARENDON COUNTY.

pulton . . ... . ......... ....

106

297

325

247

329

Packsyille '

337

Total

2,454

383

At seven of the above-named polls it will be perceived that not a sin-
gle Democratic ticket was drawn out, and at six others only one Demo-
cratic ticket at each. It is true that at three polls in Charleston County
not included in the above list, to wit, the City Hall, Washington Engine-
house, and Ben Potter's, more Democratic than Republican tickets were
drawn out, and that at several other polls the number of Republican
tickets drawn out did not greatly exceed the number of Democratic
tickets drawn out, but this arose from the fact that at such polls more
Democratic ballots had been stuffed into the boxes than were necessary

MACEEY VS. O CONNOR.

577

to accomplish the purpose intended, and consequently the excess was
almost equal to, and in two instances even greater than, the number of
Republican tickets in those boxes, as at the Washington Engine-house,
where there were only 245 Republican tickets in the box, while the ex-
cess was 379, and at Ben Potter's, where there were only 45 Republican
tickets in the box, while the excess was 59.

Every Republican vote drawn out was a loss of one to Mr. Mackey
and a gain of one to Mr. O'Connor. On the other hand, by the drawing
out of a Democratic ticket Mr. O'Connor suffered no loss, because the
excess being created by placing Democratic tickets in the box, whenever
a Democratic ticket lawfully voted was drawn out one of the Democratic
tickets illegally voted was counted in its place, so that the contestee's
vote was not reduced thereby.

THE TRUE STATE OF THE POLL.

In order, therefore, to ascertain the true state of a poll it is only nec-
essary to add to the vote returned for the contestant at that poll the
number of Republican ballots drawn out and destroyed, and to deduct
from the vote returned for the contestee a like number, making, of
course, such additional corrections as the testimony warrants.

Acting upon this rule, the committee find that the correct vote at
those polls where the ballot-boxes were stuffed, and Republican tickets
drawn out and Democratic tickets counted in their place, is as follows :

Vote returned.

Vote corrected.

O'Connor.

Mackey.

O'Connor.

Mackey.

CHARLESTON COfXTY.

Citv Hall wardl

1,354
279
1,018
670
1,200
1,063
391
835
720
348
161
145
71
63
150
232
139
129
99

375
347
476
465
5
364
66
299
198
196
385
443
630
380
64
286
97
34
85

1,277
154
985
556
608
513
212
335
601
269
60
129
41
50
133
169
133
118
91

452
472
509
526
597
914
245
799
317
275
486
459
660
393
81
349
103
45
93

Market Hall ward 3 .. . .

Palmetto E. H., ward 3
Hope E. H., ward 4
Eacle E. H., ward 5

Washington E H ward 6 .. .....

Marion E. H. ward 6

Ashley E. H., ward 7
Niagara E. H., ward 8

Bio'Tin Church

Blackville

ORAXGEBUBG COUNTY.

9,067

5, 195 6, 434

7,775

419
245
96
296
199
116
/ 85
241
236
337
111
154
283
199
285
69

651
150
60
190
105
3
279
147
700
112
127
252
98
91
178
Jl'J

356
216
78
232
177
85
76
194
196
237
87
93
193
147
238
53

714
163
78
240
127
124
288
170
740
222
151
313
188
143
225
228

Cedar Grove

Connor's

Fort Motte

3. 371 3, 435

2,658

4,114

H. Mis. 35-

-37

578

DIGEST OF ELECTION CASES.

Vote returned.

Vote corrected.

O'Connor.

Mackey.

O'Connor.

Mackey.

CLARENDON COUNTY.

Fulton ....

161
295
433
459
240
409

193
180
215
174
137
404

55
248
186
220
135
171

227
462
413

222
532

Recapitulation.
Charleston County........

1,997

1,303

1,015

2,155

9,067
3,371
1,997

5,195
3,435
1,303

6,434
2,658
1,015

7,735
4,114
2,155

14,435

9,933

10, 107

14, 004

MACKEY'S REAL, MAJORITY.

Correcting, in accordance with the above tabulated statement, the ag-
gregate vote of the district as it appears upon the face of the returns
made by the managers of the election :

O'Connor.

Mackey.

Aggregate vote returned by the managers of the election

17.458

18 337

Deduct vote returned from those polls where the ballots in the boxes ex-
ceeded the names on the poll-list.

14, 435

9 933

Add the vote of those polls as corrected

3,023
10 107

8,404
14 004

13, 130

22,408
13, 130

Majority for Mackey

9 9 78

The committee ther fore recommend the adoption of the following
resolutions :

Resolved, That the Hon. Samuel Dibble is not entitled to hold the seat
now occupied by him in this Houseas a Eepresentative from the second
district of South Carolina in the Forty-seventh Congress.

Resolved, That the Hon. E.W.M. Mackey was duly elected as a Eepre-
sentative from the second Congressional district of South Carolina in
the Forty-seventh Congress, and is entitled to a seat in this House.

APRIL 12, 1882. Mr. MouLTON,fromthe Committee on Elections, sub

mitted the following

VIEWSOF THE MINORITY:
Election contest in second district of South Carolina.

The undersigned members of the Committee on Elections dissent
from the views expressed by the majority of the committee, both in re-
gard to the relation of Samuel Dibble, the sitting member, to the case

MACKEY vs. O'CONNOR. 579

of E. \V. M. Mackey vs. M. P. O'Connor, and also in regard to the
authenticity and genuineness of the depositions in the said case.

In view of the fact that the circumstances present several novel feat-
ures, it seems to us that great care should be exercised in its consid-
eration, to the end that every determination made therein should become
a sound precedent for future adjudications.

The following are a few of the leading facts in the case :

In November, 1880, E. W. M. Mackey and M. P. O'Connor were op-
posing candidates for Congress in the second Congressional district of
South Carolina, and as the result of the election then held M. P. O'Con-
nor was declared elected by the State board of canvassers, and received
the usual certificate of such election, which was duly filed with the Clerk
of the House of Representatives. Mr. Mackey contested the election of
Mr. O'Connor in the usual form, and in the taking of testimony in
such contest, by an agreement of which both parties availed themselves,
all limitations as to time were expressly waived, so that the taking of
the testimony was protracted over a much longer period than the term
allowed by the statute, and before the taking of Mr. O'Connor's testi-
mony was completed he died, on April 26, 1881.

On May 23, 1881, the governor of South Carolina, in accordance with
the provisions of the Constitution of the United States, issued his writ
of election to fill the vacancy in the representation in Congress ; and at
the election held thereunder, on June 9, 1881, Samuel Dibble was elected,
receiving his credentials June 22, 1881, and the same being filed with
the Clerk of the House of Representatives on June 25, 1881.

Mr. Mackey, the contestant of the late Mr. O'Connor, did not serve
any notice of contest of Mr. Dibble's election ; but proceeded after the
death of Mr. O'Connor, and before the election of Mr. Dibble, in taking
testimony in the case of Mackey vs. O'Connor; and the record as now
filed and printed embraces testimony on both sides so taken after Mr.
O'Connor's death and before Mr. Dibble's election.

On December 5, 1881, the House met, and Mr. Dibble, on the call of
the roll, presented himself to be sworn. Objection was made by a mem-
ber of the House, who stated to the House the general circumstances of
the case, and after calling the attention of the House to the fact that
Mr. Mackey had served no notice of contest upon Mr. Dibble, offered the
following resolution, viz :

Eesolved, That the certificate of election presented by the Hon. Samuel Dibble, to-
gether with the memorial and protest and all other papers and testimony taken in the
case of the contest of E. W. M. Mackey vs. M. P. O'Connor, now on file with the Clerk
of this House, be, and the same are hereby, referred to the Committee on Elections,
when appointed, with instructions to report at as early a day as practicable \yhether
any vacancy as alleged in the certificate existed, and as to the prima facie right or
the final right of said claimants to the seat as the committee shall deem proper ; and
neither claimant shall be sworn until the committee report.

"Whereupon the House, after discussion, laid the resolution on the
table ; and also laid on the table a motion to reconsider its vote thereon.

Mr. Dibble then presented himself at the bar of the House, and was
sworn, without further objection, and from that time until December 21,
1881, occupied his seat as a member of the House without challenge or
dispute.

Upon grounds which will be hereinafter explained the undersigned
conclude that testimony in the contest between Mackey and O'Connor
is inadmissible as against Mr. Dibble; that Mr. Dibble is not to be con-

580 DIGEST OF ELECTION CASES.

eluded by any allegations, proofs, stipulations, waivers, or laches made
or incurred by Mr. O'Connor, or by anybody else, in the case of Mackey vs.
O'Connor, or in any other case to which Mr. Dibble was not a party.
But if any testimony taken in that case could be lawfully considered in
the adjudication of Mr. Dibble's right to the seat which he occupies, we
think there are insuperable objections to the record of the case of Mackey
vs. O'Connor, as filed with the Clerk of the House of Representatives,
and as printed by order of the committee.

Simply stating the fact, which appears on inspection of the dates of
depositions and other papers, that at the time of the death of Mr.
O'Connor the testimony in his behalf had not been completed, and sub-
mitting that as a matter of law the contestant, E. W. M. Mackey, could
not, by any process known to the statute, during the period after Mr.
O'Connor's death and before Mr. Dibble's election, complete the testi-
mony in a cause in such unfinished condition, by an agreement with
any person or persons whomsoever, we come to the still more serious
objections applicable to the record.

The sitting member, Mr. Dibble, without waiving his protest to the
whole proceeding previously made, submitted to the committee certain
affidavits affecting the integrity of the testimony as a whole, and re-
quested of the committee an investigation of the matter, alleging that
there were other witnesses who were cognizant of the facts alleged,
whose testimony he could not obtain without the order of the House,
as they were persons who were politically friendly to Mr. Mackey, the
contestant, and were unwilling to give evidence of what they knew.
Mr. Dibble also requested leave of the subcommittee to whom the case
of Mackey vs. O'Connor was referred to permit him to occupy twenty
or thirty minutes of their time in exhibiting to them certain erasures
and interlineations of the testimony apparent on the face of the manu-
script, which he claimed would of themselves furnish intrinsic evidence
that material changes had been made in the testimony, and in some
instances in the handwriting of the contestant Mr. Mackey himself.
But the majority of the subcommittee declined to permit Mr. Dibble to
exhibit any of the said alterations of testimony, and refused to inspect
the same.

In connection with this subject let us consider a few facts which are
not matter of dispute, but are admitted by the contestant.

By virtue of an agreement between Mr. Mackey, the contestant, and
3Ir. Chisolm, who was Mr. O'Connor's attorney, a large portion of the
testimony was first taken in short-hand by a stenographer, Mr. Hogarth,
who was, so far as the testimony for Mr. Mackey was concerned, also
employed by him as his notary public. This testimony was transcribed
by Mr. Hogarth in his own handwriting from his stenographic notes, and
delivered to Mr. Mackey, the contestant. Mr. Mackey employed C. Smith
and G. M. Magrath to rewrite the testimony from the sheets furnished
him by the notary, and also rewrote a large part of the testimony with
his own hand. Certain depositions, after being so rewritten, Mr. Mackey
submitted to the witnesses for such corrections as they saw fit to make
in their testimony, and in several instances witnesses did make such
alterations. In one instance, a witness, after reading the deposition so
rewritten, refused to sign it, on the ground that it was not as he had
sworn; but the contestant, Mr. Mackey, and himself disagreed as to the
matter, and the deposition, as rewritten by C. Smith, was forwarded
without the witness's signature, in the shape which the witness had re-
pudiated. Xoiie of the testimony so rewritten was compared at the
time with the stenographic notes of the stenographer, who certified the

MACKEY VS. O CONNOR. 581

rewritten depositions without such comparison, omitting from his cer-
tificates, however, the allegation that the depositions were written out
in his presence ; and the contestant admitting that the depositions so
certified were not written out in the presence of the officer, as the stat-
ute requires, with the exception of three or four depositions.

The foregoing are facts about which there is no dispute whatever.
The contestant not only does not deny but attempts to justify them.

But the affidavits of E. H. Hogarth, the notary public, and of C.
Smith, who was one of the copyists employed by Mr. Mackey, and who,
as the printed record shows, was the first witness examined by Mr.
Mackey in his contest, and was one of the Republican supervisors at
the election of November, 1880, exhibits a still more startling and re-
markable career through which the testimony on file has passed in get-
ting to the Clerk of the House.

We annex their affidavits, together with others corroborative of the
same, entire :

Affidavit of E. H. Hogarth.

STATE OF GEORGIA,

Richmond County :

Personally appeared before me, a notary public in and for the county of Richmond,
E. H. Hogarth, who, being sworu, says that he was a resident of the city of Charles-
ton, State of South Carolina, during the year 1881 up to the 30th of September.
That deponent held the office of notary public during said time, and was a stenogra-
pher by profession. That he was employed by E. W. M. Mackey, esq., as stenogra-
pher and notary public in the contest between E. W. M. Mackey and M. P. O'Connor
for a seat in the Forty-seventh Congress of the United States, and that deponent acted
as stenographer, and sometimes notary public, in Orangeburg County, on behalf of
the Hon. M. P. O'Connor. That deponent took the testimony on the part of E. \V. M.
Mackey, esq., in the counties of Charleston, Orangeburg, and Clarendon, with the ex-
ception of one or two depositions. That all of the testimony so taken by deponent
as stenographer was transcribed from his stenographic notes in deponent's own hand-
writing, and testimony taken on behalf of E. W. M. Mackey, esq., was turned
over to him, in deponent's own handwriting, and such taken oil behalf of the Hon .
M. P. O'Connor Avas turned over, in deponent's own handwriting, to Robert Chisolm,
jr., esq. This ended his (deponent's) connection with said testimony, except that
afterward, at various times, he (deponent) signed certificates which were tendered to
deponent by E. W. M. Mackey, esq., and also jurats at the foot of dispositions ; these
deponent signed without comparison with his said stenographic notes, taking it for
granted that said testimony was the same as furnished by deponent to said E. W. M.
Mackey, esq. That the said certificates were often presented to deponent for signa-
ture by said E. W. M. Mackey, esq., when deponent was otherwise employed, and
that deponent did not have his stenographic notes at hand when he so certified said
testimony.

That deponent also certified the testimony take on behalf of Hon. M. P. O'Connor
in instances where deponent acted as notary public.

That deponent did not forward any of said testimony to the Clerk of the House of
Representatives, but turned same over to the respective parties named above, and de-
ponent knows nothing of his personal knowledge concerning the forwarding of the
same.

E. H. HOGARTH.

Sworn to and subscribed before me this 17th day of February, 1882.

[SEAL.] WM. K. MILLER,

Notary Public, Richmond County, Georgia.

Affidavit of C. Smith.

STATE OF SOUTH CAROLINA,

Charleston County :

Before me personally came C. Smith, in response to a summons to testify as to cer-
tain matters in a contest entitled E. W. M. Mackey rs. M. P. O'Connor, and who, being
duly sworn, says I was employed by E. W. M. Mackey to write out the testimony
taken in his behalf in the contest between himself and Mr. O'Connor for a seat in the
Forty-seventh Congress ; this writing was done at the house of Colonel Mackey, and

582 DIGEST OF ELECTION CASES.

at the United States court-house, and at my room. The body of testimony was in the
handwriting of E. H. Hogarth, stenographer and notary public, and there were in-
terlineations, erasures, and portions of the original sheets were cut out and other
sheets substituted, and sometimes left out entirely ; that sometimes nearly a whole
page was struck out by drawing a line across it ; that the interlineations were in the
handwriting of E. W. M. Mackey; that the copying made by me omitted the erasures
and inserted the interlineations ; that sometimes whole pages of this testimony in
the handwriting of Colonel E. W. M. Mackey would be inserted, and of which there
was no original in the handwriting of Mr. Hogarth, the notary public, that I saw ;
that sometimes when I returned the originals and my copy of the same, Colonel
Mackey destroyed the originals by placing them in a stove, or destroying them by
tearing them up ; that in some instances the copy made by me was returned interlined,
and I made fresh copy with such corrections; the interlineations last mentioned were
also in the handwriting of Colonel E. W. M. Mackey ; that the notary public, Mr.
Hogarth, placed his seal and signature to the testimony as it was handed to him, with-
out making any comparison with the originals, as in many instances as before stated,
the originals had been destroyed, and also without making any comparison with his
short-hand notes ; that is, in every case in which I was present my impression is that
I saw him sign nearly all of the testimony, certainly more than half of it ; that in the
case of W. A. Zimmerman the testimony as copied by this deponent was submitted to
him for his signature that he declined to sign the same unless certain corrections
were made in it; that the testimony as submitted was not correct, and that unless the
corrections were made he would not sign the same ; that this testimony of Zimmer-
man's I returned to Mr. Mackey and I never recopiedit, and it was not signed by Mr.
Zimmerman when I returned it to Mr. Mackey; that in the case of Maj. T. A. Hu-
guenin the testimony as copied by me was handed to him ; he glanced over it and
said, " I suppose it is all right," and signed it ; that I may have submitted other testi-
mony but cannot now recall the cases -where I submitted them for signatures ; that
Mr. Hogarth in certifying these papers would certify a number of them at one time
and without comparison as aforesaid; that I took a number of packages of the testi-
mony to the express office and shipped them, in the name of Mr. Hogarth, to the Clerk
of the House of Representatives ; that the statements herein apply only to the testi-
mony taken in Mr. Mackey's behalf; I know nothing about the testimony taken for
Mr. O'Connor ; that from the early part of January, 1881, and off and on during the
summer months, and nearly up to the time that "the last package of Mr. Mackey's
testimony was sent off, I was copying ; that the packages hereinbefore mentioned as
shipped by me were given to me by E. W. M. Mackey, and I handed to him the re-
ceipts for the same, the said receipts being in the name of E. H. Hogarth.

C. SMITH.

Sworn to before me this 16th day of February, 1882.

[SEAL.] H. L. P. BOLGER,

. ' Notary Public.

Affidavit of W. A. Zimmerman.

THE STATE OF SOUTH CAROLINA,

Charleston County :

Before me personally appeared W. A. Zimmerman, who, being first duly sworn, de-
poses and says that on or about the 1st day of February, A. D. 1881, he was exam-
ined as a witness on behalf of E. W. M. Mackey, esq., contestant in the contested
election case of E. W. M. Mackey against M. P. O'Connor for a seat in the Forty-
seventh Congress of the United States ; that deponent's testimony was taken down
in short-hand by E. H. Hogarth, a stenographer employed by the said E. W. M.
Mackey ; that some time afterwards what purported to be his testimony was brought
to him by one C. Smith, written out in long-hand, to be signed by deponent ; that
deponent read over the paper so brought to him, carefully, and found that it did not
contain the testimony as he had given it, but that the same had been altered in ma-
terial particulars, so much so that deponent refused to sign it, giving as a reason that
it was not a correct rendering of this deponent's testimony ; that this deponent re-
fused to sign unless these alterations were corrected and the testimony restored to
the shape in which it had been given ; that the said C. Smith thereupon took back
the said paper, and that neither it nor any other testimony was ever presented to
deponent for his signature afterwards, nor has he ever been asked again to sign his
testimony in the case, nor has he signed it.

W. A. ZIMMERMAN.

Sworn to before me this 17th day of February, 1882.

[SEAL.] H. L. P. BOLGER,

Notary Public.

MACKEY vs. O'CONNOR. 583

Affidavit of W. E. Earle.

DISTRICT OF COLUMBIA,

City of Washington :

Before me personally came William E. Earle, of this city, who, being duly sworn,
deposes and .says that he has known E. H. Hogarth, a stenographer, formerly of
Charleston, and at present residing in Augusta, Ga., for many years; that he is very
familiar with the handwriting of said Hogarth, who has done much reporting for
deponent and written a great deal in his presence ; that deponent has examined the
contestant's testimony in the case of E. W. M. Mackey against M. P. O'Connor for
a seat in the Forty-seventh Congress, page by page, and that none of the body of
the said testimony is in the handwriting of the said Hogarth ; that deponent is also
familiar with the handwriting of C. Smith, of Charleston, S. C., has seen him write,
and said Smith has done copying for deponent; that a great deal, by far the greater
part, of contestant's testimony in the case above stated is in the handwriting of said
Smith ; that in said testimony there is a deposition, unsigned, of one W. A. Zimmer-
man, which deponent believes to be in the handwriting of said C. Smith ; that this
motion is made at the earliest day possible, and that all possible diligence has been
exercised to present it at the earliest practical moment ; that an examination of the
manuscript testimony when returned from the printer aroused suspicious as to its reg-
ularity, and this was immediately followed up by a careful and scrutinizing exami-
nation of it, and by inquiries which had to be made by mail, and the material in-
formation was not received until Monday night the 13th instant, and the foregoing
affidavits only came to deponent's hand this day.

WM. E. EARLE.

Sworn and subscribed to before me this 20th day of February, A. D. 1882.
[SEAL.] JOHN E. BE ALL,

Rotary Public.

We also submit the affidavits filed by Mr. Dibble as to matters ap-
parent on the face of the manuscript testimony, submitted by him after
the subcommittee had declined to permit him to exhibit to them the
manuscript for their inspection.

Affidavit of Mr. Dibble.
In the Committee on Elections, House of Representatives Mackey vs. O'Connor.

DISTRICT OF COLUMBIA, ss :

Before me personally came Samuel Dibble, who, being duly sworn, made oath that
he has examined a large number of the written pages from which was printed the tes-
timony in the case of Mackey versus O'Connor; and that the folio wing matters appeared
to him on inspection thereof; and that he places these matters in the form of an
affidavit, under the ruling of the subcommittee of the Committee on Elections made
to-day, in order that they may have before them some of the facts which deponent de-
sired to present to their attention and inspection to-day, when deponent was before
them, and the said written pages were accessible and on the table.

First, as to the testimony filed in behalf of the contestant, E. W. M. Mackey: Con-
cerning this the questions propounded to witnesses, and their answers, are not in the
handwriting of E. H. Hogarth. Some of the depositions are in the handwriting of
E. W. M. Mackey himself; the greater number of the others are in the handwriting
which deponent is informed and believes to be the handwriting of one C. Smith.
Deponent is acquainted with the handwriting of the said E. H. Hogarth and of the
said E. W. M. Mackey, but only knows the handwriting of C. Smith from information.

In the said testimony filed in behalf of the contestant, E. W. M. Mackey, there are
erasures, changes, and interlineations, a few of them in the testimony of witnesses,
but those deemed more important by this deponent are in the papers which purport to
be returns of United States supervisors of election. The following instances are called
to notice:

In the deposition of James Just, in his cross-examination, on page 186 of the manu-
script record, it was written as follows :

" Q. Were they colored men ? A. I know one or two were not, because I saw them
vote the Democratic ticket.

"Q. Did you see the other two vote the Republican ticket ? These words, by
erasure and 'interlineation, are changed, in the handwriting said to be C. Smith's, so
as to read as follows :

'Q. Were they colored men? A. Yes, sir.

584 DIGEST OF ELECTION CASES.

" Q. Did you see them vote the Republican ticket T" the effect of the change being
to relieve the witness from a contradictory statement.

On page 391 of the manuscript testimony the figures " 417 " and " 393," respectively,,
have been inserted in place of erasures; and on page 561, the figures "225" stand in
place of " 238," erased.

But of the papers purporting to be United States supervisors' returns, made by
United States supervisors to the chief supervisor, and consisting of printed blanks-
filled out with writing and figures, those for Calhoun and Packsville precincts, in
Clarendon County, and that for Hope Engine House, in Charleston County, and those
for Branchville and Rowesville, in Orangeburg County, are in the handwriting of E.
W. M. Mackey, excepting the signatures; also the names of the Congressional candi-
dates in the return for Fort Motte precinct, in Orangeburg County, the rest of the said
return being in some other handwriting. And that the said precincts are most of
them at great distances apart, that is, those in the county of Clarendon at a great
distance from those in the counties of Orangeburg and Charleston, and to go from one
to the other would require a long and tedious journey.

On pages 30 and 31, and on pages 2001 and 2002 of the manuscript testimony (found
on pages 9 and 10, and on pages 759 and 760 of the printed testimony), appear two-
certificates of the United States chief supervisor for South Carolina, certifying "tabu-
lar statements of the vote at each voting precinct in the second Congressional dis-
trict" to be " correctly transcribed from the returns made to me by the United States
supervisors of election at each poll, of the vote counted and returned at their respect-
ive polls by the managers of election thereat." In each of the tabulated statements
the return of the Calhoun precinct, Clarendon County, is as follows:

E. "W. M. Mackey. M. P. O'Connor.
Calhoun 404 409

Now, an inspection of the manuscript testimony, pages 786 and 787, will show the
following in the handwriting of E. W. M. Mackey :

" Q. Did you make a report to the chief supervisor ? A. Yes, sir.

" Q. Is this your report (handing witness a paper) ? A. Yes, sir.

" The report was here introduced in evidence, and is as follows."

Here follows what purports to be the United States supervisor's retnrn for Calhoun.
precinct, and all the written part of the same, excepting the signature, is in the hand-
writing of E. W. M. Mackey, and contains the Congressional vote, as counted by the
managers, as follows :

" The whole number of votes counted by the managers of elections for member of
Congress was ;

"Of which 404 votes were counted for Edmund W. M. Mackey;

" Of which 639 votes were counted for M. P. O'Connor; "

the figures "639" being entirely different from the figures "409" certified by the chief
supervisor to be the figures of M. P. O'Connor's vote as set forth in the genuine return.

In addition to this, in various places, in papers introduced as United States super-
visors' returns, figures have been altered in places material to the case presented by
E. W. M. Mackey, and have been printed as altered. Instances are as follows :

Manuscript Printed
page. page.

Jordan's 822 330

Branchville 484 219

Brown's 540 235

Corbettsville 578 248

Fort Motte 674 280

Deponent has not time to specify the character of this and other changes, as he has
to file this affidavit to-day.

Secondly, as to the testimony filed in behalf of M. P. O'Connor, deceased :

In this testimony, running in manuscript from pages 880 to 1969, inclusive, the in-
terlineations and erasures are by the hundreds. Some appear to deponent to be gram-
matical corrections, some rhetorical, and some material. Deponent has time to in-
stance but one, found on manuscript pages 905 and 906. The manuscript originally
was as follows :

"Q. Was not the number of Republican tickets seventy-eight? When you first
opened the box and counted the ballots in order to ascertain the whole number, did
you not put the whole number of Republican and the whole number of Democratic
tickets in separate piles ? A. No, sir, because we had such a large white vote."

All this is erased except the first part of the question, and an answer to that part is
inserted in the handwriting of E. W. M. Mackey, so as to read as follows:

"Q. Was not the number of Republican tickets seventy-eight ? A. I think it was."

Deponent would like to name other instances, but want of time forbids, and the

MACKEY VS. O'CONNOR. 585

testimony is in the hands of the committee for any further inspection thev may desire.
Deponent is now expecting other affidavits, of The sending of which he has received
telegraphic advice since the subcommittee adjourned this morning, and there are
other witnesses who, as he is informed and believes from communications received
by him, would corroborate the affidavit of C. Smith, but are unwilling to testify; and
deponent is satisfied that he cannot secure their testimony except under some order
of the House of Representatives in the premises.

SAMUEL DIBBLE.

Subscribed and sworn to before me this first day of March, A. D. 1882.

THOMAS W. SORAN,

Xotary Public.

By the affidavits of Mr. O'Connor's counsel it appears, and the fact
is not controverted, that all these transactions of Mr. Mackey and his
assistants in the transcription and alteration of the testimony were
done without their knowledge.

The subcommittee, by resolution of March 1, 1882, limited the sitting
member to that day for offering affidavits concerning the alteration of
the depositions. On the morning of March 2 an affidavit, of date of
February 28, 1882, was received by the sitting member, and forthwith
served on the contestant and filed with the clerk of the committee. It
was corroborative of the affidavit of C. Smith, and the affiant made
oath " that he had seen Mr. Mackey scratch out the testimony and Mr.
C. Smith write it over; that he has seen Mr. C. Smith hand to Mr.
Mackey written sheets, which deponent believes was the original testi-
mony, and Mr. Mackey tear them up and place the pieces in a stove,"
and also named three persons whom he swore he had seen reading the
original sheets for C. Smith to copy from their reading. The sitting
member tendered this affidavit, with the statement that the three per-
sons named were political friends of the contestant, and that he hoped
that the subcommittee would obtain their testimony, even if tendered
ex parte by the contestant; but the majority of the subcommittee, after
consideration, determined to exclude this affidavit, as being filed too
late.

Mr. Mackey's explanation is as follows:

Personally appeared E. W. M. Mackey, who, being duly sworn, says that for the
purpose of taking testimony in his contest against Mr. M. P. O'Connor for a seat in
the Forty-seventh Congress deponent employed one E. H. Hogarth, a notary public
and a stenographer ; that at the time deponent began the taking of his testimony, and
for several months after, it was generally believed that there would be an extra ses-
sion of Congress soon after the inauguration of President Garfield ; that deponent
was therefore exceedingly solicitous in such event that the testimony in his case
should be ready to be submitted to the House of Representatives immediately upon
its assembling ; that in the taking of testimony in his contest in the previous Con-
gress, deponent had employed the said E. H. Hogarth, whom, in transcribing of his
stenographic notes, deponent discovered to be an exceedingly slow writer, especially
when required to write in a clear and legible hand ; that, therefore, for the purpose
of facilitating the said E. H. Hogarth in the transcribing of his stenographic notes
of the depositions taken in the present contest, it was agreed by and between depo-
nent arid the said E. H. Hogarth that the latter should transcribe his notes in a rough,
and hasty hand, and that the same should be afterwards copied by others to be em-
ployed for that purpose ; that except in some instances, not exceeding nine or ten,
where the said E. H. Hogarth read his notes and the writing was done either by C.
Smith, G. M. Magrath, or deponent, the said E. H. Hogarth, in accordance with the
understanding aforesaid, transcribed his notes in a very rough and hasty handwrit-
ing and the pages so written were then copied by C. Smith and G. M. Magrath in a
neat and legible handwriting.

This explanation is not satisfactory. If the " rough and hasty " copies
made by Hogarth were legible, it would certainly have been more ex-
peditious for Hogarth to have certified and forwarded them, than for
the contestant to have had them all rewritten by himself, C. Smith, and
Magrath. So that the pretext of being in a hurry is not supported by

586 DIGEST OF ELECTION CASES.

taking twice the time and trouble and expense necessary, for the simple
purpose of reproducing testimony exactly as it was already written.

Besides, the contestant, Mr. Mackey, has, by his own act, indicated
that he was not in a hurry in getting in his testimony. At the time he
began taking his testimony he entered into an agreement with the
attorney of Mr. O'Connor, whereby, ' ; for the convenience of both par-
ties," it was agreed to take testimony for a longer period than was al-
lowed by the statute, as appears by one of the stipulations of the agree-
ment, as follows :

Second. That for the convenience of both parties, and the better to enable them to
take such testimony as may by them be deemed necessary, all limitations as to time
are hereby expressly waived, and testimony shall be taken at such times as may be
agreed upon by the parties to said contest.

And the testimony of Mr. Mackey was none of it forwarded to the
Clerk of the House until May, 1881, and a portion of it as late as Sep-
tember, 1881.

It will be noticed that in no instance does the notary public, Hogarth,
certify that the depositions filed with the Clerk of the House were re-
duced to writing in his presence, and in addition he distinctly makes
oath that he did not forward the same.

The objection was duly made that the notary public had not certified
that the testimony was reduced to writing in his presence, and that it
was not forwarded by the officer taking the same.

The following, then, are established facts :

The depositions of the contestant, with one or two exceptions, were
taken before E. H. Hogarth, who was a stenographer as well as a notary
public. All of the testimony taken before this notary, except three or
four depositions, was transcribed from the stenographic notes in his
own handwriting and delivered to the contestant. These depositions so
taken before and written out by the notary were never forwarded to the
House. They are not now and never have been on file either in this
committee or in the House. Some of these depositions were burned and
some of them were torn up by the contestant. The rest were retained
or otherwise disposed of by him. In place of these depositions the con-
testant sent to the House certain papers written by himself and his
agents, which papers are now in the custody of this committee, and
have been printed as the contestant's depositions in this case. The
method adopted by the contestant in the preparation of these papers
was this : He took the depositions in the handwriting of Mr. Hogarth
and remodeled them by interlineations, by erasures, by cutting out por-
tions of the original sheets, and either omitting such portions altogether
or substituting other sheets in their stead, by erasing sometimes nearly
a whole page at once, by inserting entire pages in the handwriting of
the contestant, of which there was no original in the depositions written
by Mr. Hogarth. The interlineations were in the handwriting of the
contestant.

The contestant delivered the most of the depositions so remodeled to
C. Smith, who wrote them over, including all interlineations and inser-
tions, and excluding all erasures. Some of the depositions so replaced
were burned, and others torn up by the contestant. In some cases,
after Mr. Smith had reproduced the paper in the form required by the
contestant's erasures, insertions, and interlineations, the contestant cor-
rected the remodeled paper by fresh interlineations in the contestant's
hand, and it was then rewritten in full by Mr. Smith to meet the final re-
quirements of the contestant. None of the papers were written in the
presence of the notary public.

MACKEY vs. O'CONNOR. 587

After these papers were so prepared they were never examined by the
notary or compared either with his stenographic notes or with his man-
uscript before he signed the certificates. The certificates were presented
to him ready for signature by Mr. Smith. They were in the following
form:

STATE OF SOUTH CAROLINA,

Charleston County:

I, E. H. Hogarth, a notary public in and for the State of South Carolina, do hereby cer-
tify that the foregoing deposition was taken by me on the day of , A. D.

1881, pursuant to notice of contestant and in accordance with the provisions of law,
the contestant being present in person and the contestee being represented by his at-
torney.

Given under niy hand and official seal this day of , A. D. 1881.

[SEAL.] E. H. HOGARTH,

Notary Public, S. C.

These certificates, although signed in some cases several months after
the testimony was concluded, were dated, respectively, as of the days
when the depositions for which the certified papers were substituted were
taken. Mr. Smith, the employe" of the contestant, sent these papers to
the Clerk of the House of Representatives, not by mail, but by express,
taking a receipt therefor from the express company in the name of Mr.
Hogarth, which he delivered to the contestant.

The following are the provisions of the statute:

SEC. 127. All officers taking testimony to be used in a contested-election case, whether
by deposition or otherwise, shall, when the taking of the same is completed and with-
out unnecessary delay, certify and carefully seal and immediately forward the same by
mail addressed to the Clerk of the House of Representatives of the United States, Wash-
ington, D. C.

The corresponding provisions of the judiciary act of 1789 are in the
following words:

And every person deposing as aforesaid shall be carefully examined and cautioned
and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by
him or her given after the same shall be reduced to writing, which shall be done only
by the magistrate taking the deposition, or by the deponent in his presence. And the
depositions so taken shall be retained by such magistrate until he deliver the same
with his own hand into the court for which they are taken, or shall, together with a
certificate of the reasons as aforesaid of their being taken, and of the notice, if any,
given to the adverse party, be by him, the said magistrate, sealed up and directed to
such court and remain under his seal until opened in court.

The following provisions are common to the contested-election law
and the judiciary act of 1789 :

1. The deposition must be reduced to writing in the presence of the
officer.

2. It must be transmitted to the tribunal before which it is to be used
by the officer himself; and until so transmitted it must remain in the
custody of the officer.

It is obvious, therefore, that decisions of the Federal courts on these
two provisions of the judiciary act for the writing out and transmittal
of the deposition will be authorities in cases which may come before
this committee under the two corresponding provisions of the statute
relating to contested elections.

In Bell vs. Morrison (1 Peters, 351), Judge Story, delivering the opin-
ion of the court, held that, under section 30 of the judiciary act, a depo-

588 DIGEST OF ELECTION CASES.

sition is not admissible if it is not shown that it was reduced to
wri ng in presence of the magistrate.

I United States vs. Smith (4 Day, 121), the counsel for defendant
objected on the trial to a deposition offered by the plaintiff on the ground
that it did not appear that it was reduced to writing, either by the mag-
istrate or by the witness in the presence of the magistrate, as required
by section 30 of the judiciary act of 1789. The magistrate's certificate
was in these words :

Personally appeared the above-named Thaddeus R. Austin, of Suffield, in the State
of Connecticut, and, being duly cautioned, made oath to the troth of the above depo-
sition by him subscribed and written in my presence, &c.

Judge Pierrepont Edwards, delivering the decision of the court, said :

The provisions of the act of Congress relative to the taking of depositions are very
important, and ought to be adhered to strictly. This deposition cannot be read. The
question is not a new one. In England the lord chancellor has refused to admit depo-
sitions taken as this was.

In the case of Edmonston vs. Barrett (2 Cranch C. C., 228), the plaint-
iff's attorney offered in evidence on the trial the deposition of John
Marshall, of Charleston, S. C., taken before the Hon. John Dray ton,
district judge of the United States. The certificate of the judge was
in the following words :

DISTRICT OF SOUTH CAROLINA, ss :

On this 28th day of May, 1818, personally appeareth the under-named deponent,
John Marshall, of Charleston, merchant, before me the subscriber, JohuDraytou, dis-
trict judge of the district aforesaid, and being by me carefully examined, cautioned,
and sworn in due form of law to testify the whole truth and nothing but the truth,
relating to a certain civil cause, &c., he maketh oath to the deposition above written,
and subscribes the same in my presence, the said deposition being first reduced to
writing by the deponent.

The attorney for the defendant objected to the deposition on the
ground that the judge had not certified that it was reduced to writing
in his presence, as required by section 30 of the judiciary act of 1789.
The attorney for the plaintiff contended that it was to be presumed to
have been so written because the law required it. But the court unani-
mously sustained the objection and rejected the deposition.

In the case of Pettiboue vs. Derringer (4 Wash. ,215), tried in the circuit
court of the United States for the third circuit at Philadelphia, in 1818,
before Justice Washington, of the Supreme Court of the United States,
and District Judge Peters, objection was made on the trial to the intro-
duction of a deposition on the ground that the officer who took it had
not certified that it was reduced to writing by the witness in his pres-
ence. The court sustained the objection and held,

That a deposition taken under the thirtieth section of the judiciary act cannot be
used unless the judge certifies that it was reduced to writing either by himself or by
the witness in his presence.

In the case of Eaynor vs. Haynes (Hempst., 689), decided by the
United States circuit court for the ninth circuit, in 1854, depositions
offered by the attorneys for the defendant were objected to on the
ground that the magistrate failed to state that the depositions were re-
duced to writing in his presence, and the objection was sustained by
the court.

In the case of Cook vs. Burnley (11 Wall., 659), when the defendants'
case was reached in the course of the trial, the defendants offered to
read a deposition taken under section 30 of the judiciary act. There
was no certificate by the magistrate that he reduced the testimony to

MACKEY VS. OCONNOK. 589

writing liimself, or that it was done by the witness in his presence.
The deposition was excluded by the district court. The Supreme Court
of the United States said :

There is no certificate by the magistrate that he reduced the testimony to writ-
ing liimself, or that it was done in his presence, which omission is fatal to the deposi-
tion.

In Baylis vs. Cochran (2 Johnson (N. Y.), 416), Chief Justice Kent,
delivering the opinion of the court, said :

The manner of executing the commission ought not to be left to inference, but should
be plainly and explicitly stated. It would be an inconvenient precedent and might
lead to great abuse to establish the validity of such a loose and informal system ;
matters which are essential to the due execution of the commission ought to be made
to appear under the signature of the commissioners. Among these essential mat-
ters is the examination of the witness on oath by the commissioners, and the reduc-
ing of his examination to writing by them, or at their instance and under their care.
We are accordingly of opinion that the judgment of the court below ought to be af-
firmed.

While the particular facts in this New York case differ from the facts
of the case now on trial, it is quite unnecessary to suggest the forcible
application of the doctrine of that case to* this.

The case of Summers vs. McKirn (12 S. & R., 404) is a very strong
authority on the point now under consideration. There was at the time
no law in Pennsylvania requiring the deposition to be reduced to writ-
ing in the presence of the officer. There was no rule of court to that
effect* The only regulation on the subject was a rule of court requir-
ing the deposition to be taken before a justice. But Chief- Justice Tilgh-
man, delivering the opinion of the court, said :

The third bill of exception contains two distinct points. The first point is on the
admissibility of the deposition of George Leech; several exceptions were made to
this evidence, but there was one which was decisive; and as it involves a principle of
great importance in practice I am glad that an opportunity is offered to the court of
settling it. This deposition was taken under a rule of court before a justice of the
peace of Clearfield County, but it was drawn up in the city of Lancaster from the
mouth of the witness by Mr. Hopkins, counsel for the defendant, and then sent to
C'leartield County and sworn to there.

Now, although the character of the counsel in the present instance puts him above
all suspicion of unfair dealing, yet it would be a practice of most dangerous tendency if
depositions so taken were to be admitted as evidence. The counsel of the party produc-
ing the witness is the last person who should be permitted to draw the deposition, be-
cause he will naturally be disposed to favor his client, and it very easy for an artful man
to make use of such expressions as may give a turn to the testimony very different
from what the witness intended. I know that depositions are sometimes taken in this
manner by consent of parties ; and when the counsel on both sides are present the dan-
ger is not so great ; but in the present case there was no consent, nor was the counsel of
the plaintiffs present. The rule of court is that the deposition shall be taken before
a justice ; it ought, therefore, to be reduced to writing from the mouth of the witness in
the presence of the justice, though it need not be drawn by him ; and in case of difler-
euce of opinion in taking down the words of the witness the justice should decide. In
chancery, if the counsel of one of the parties draws the deposition before the witness
goes before the commissioners, it will not be permitted to be read in evidence. (1
How. Ch., 360.) This certainly is a good rule ; the taking of testimony by deposition
is at best but a very imperfect way of arriving at the truth ; every precaution should,
therefore, be taken to guard against abuses. It is very clear to me that the mode in
which the deposition of George Leech was taken is subject to great abuse, and should
be put down at once. I am of opinion, therefore, that it was very properly rejected.

The following is a case where depositions went into the hands of the
defendant improperly, and they were excluded by the court. It was not
shown they were changed or altered (Boss vs. Barker, 5 Watts, 394
Pa.). Chief- Justice Gibson said:

Though the depositions had been put into the office, they had been taken away and
brought back again by one of the defendants. What may have happened to them in

590 DIGEST OF ELECTION CASES.

this interval of surreptitious custody probably nothing, but possibly a great deal
cannot certainly be known. It is abundantly clear they were not filed within the
meaning of the rule, or in the keeping and custody provided by the law.

If for the facts of the last two cases we substitute the facts of this
case, in which the depositions, after having been taken in shorthand
by the notary and written out by the notary in the ordinary hand,
were not transmitted to the House as the law required, but were deliv-
ered unsealed into the custody of the contestant himself and kept in his
house, and reproduced, and yet again reproduced by an employe of the
contestant until molded at last into forms entirely satisfactory to him,
whereupon the manuscript of the notary was retained or actually de-
stroyed and the work of the contestant put in its place, and the notary's
certificates thereto attached dated respectively as of the days when the
witnesses actually testified, and, therefore, in some cases many mouths
prior to the time when the contestant's home manufacture so certified
was, in fact, completed, we shall at once see with how much greater force
the doctrine of the supreme court of Pennsylvania applies to this case
than to those.

In Eailroad Company vs. Drew (3 Woods C. Ct., 692), tried in 1879
before the United States circuit court for the fifth circuit, objection was
made to certain depositions on the ground that the answers of the wit-
nesses had been written out by counsel in advance. The objection was
sustained. Mr. Justice Bradley, announcing the decision of the court,
said :

The fact, however, that the answers of the witnesses were prepared in writing by
their counsel in advance is fatal to the depositions. The examinations should be made
by the examiner, and not by counsel before the witnesses are brought before the ex-
aminer to give their testimony. The depositions must be suppressed.

The case of Beale vs. Thompson (8 Cranch, 70) bears indirectly and yet
with great force on the point now under consideration. On the trial in
the circuit court the defendant had offered in evidence a deposition
taken before the judge of the district court of the United States for the
district of Kew Hampshire, under the thirtieth section of the judiciary
act of 1879. The deposition was sealed up by the judge but directed to
the clerk of the court, and he, supposing it to be a letter relating to his
official business, opened it out of court. The court below rejected the
deposition. Judge Story delivered the opinion of the Supreme Court,
as follows :

The single point in this case is whether the circuit court of the District of Columbia
erred in rejecting the deposition of Tunis Craven. Independent of all other grounds
the court are of opinion that the fact of the depositions not having been opened in
court is a fatal objection. The statute of 24th September, 178, ch. 20, sec. 30, is ex-
press on this head. The judgment of the circuit court must be affirmed.

The case of Shankriker vs. Beading (4 McL., 240) also bears strongly
on the question now under consideration. The court said :

On the trial of this case a deposition was offered in evidence, which was taken in
New York December 29, 1847. It was mailed at Waterloo, in that State, June the 4th,
and received from the post-office here the 7th of June. The county judge certified that,
the deposition was reduced to writing by the deponent in his presence, but did not
state that it was retained by him until it was sealed and directed to the clerk of the
circuit court.

It was so directed, but by whom is not stated. The name of the case in which the
deposition was taken was indorsed on the envelope. For the want of this certificate
the deposition was objected to.

The act of Congress provides that the depositions so taken shall be retained by such
magistrate until he deliver the same with his own hand into the court for which they
were taken, or shall, together with a certificate of the reasons as aforesaid of their
being taken, and of the notice, if any, given to the adverse party, be by him, the said

MACKEY VS. O CONNOR. 591

magistrate, sealed up and directed to such court, and remain under his seal uutil
opened in court.

The deposition objected to may have been handed to the party at whose instance
it was taken, who forwarded it by mail to the clerk of the court. The law did not in-
tend that either party should have possession of the deposition until it should be re-
ceived by the clerk and opened by the general or special order of the court. The depo-
sition is rejected.

, while the language of the provision of the Kevised Statutes
relating to contested elections is not identical on the point of the cus-
tody and transmission of the depositions with the language of the cor-
responding provision of the judiciary act of 1789, still in substance the
two statutes are in this particular alike ; for the provision of the law
relating- to contested elections absolutely excludes the possibility of the
possession of the depositions, whether sealed or unsealed, by a party
before their transmittal to Washington. It also absolutely excludes the
possibility of a transmittal of the deposition by a party or his employe's.
The doctrine of the decisions in these two cases just cited from Cranch
and McLean is fatal to these depositions, which were kept unsealed in
the house of the contestant and out of the custody of the notary, and
were finally destroyed and replaced by documents called depositions
prepared in his house, which latter were transmitted not by the notary
but by the contestant, some of them at the expiration of a period of
several months after the time when the genuine depositions were taken.

In the United States vs. Price (2 Wash. C. Ct., 356) a commission to
take testimony, which had issued in a case to which the United States
was a party, was set aside because it had been opened by the Secretary
of War and some other officer of the Government before it came into
the hands of the clerk.

In Hunt vs. Larpiii (21 Iowa, 484) the Supreme Court sustained an ob-
jection to certain depositions based upon the ground that they had been
written out by the counsel of the party in whose favor they were to be
read as testimony. And yet there was no law in force in Iowa at that
time forbidding parties or their attorneys to write out the depositions of
witnesses, or requiring the depositions to be written in the presence of
the officer. The following was the provision of the statute:

SEC. 4079. The person before whom any of the depositions above contemplated are
taken must cause the interrogatories propounded (whether written or oral) to be writ-
ten out and the answers thereto to be immediately inserted underneath the respective
questions. The language must be in the language as nearly as practicable of the wit-
ness, if either party requires it. The whole being read over by or to the witness, must
be by him subscribed and sworn to in the usual manner.

In Williams rs. Chadbourne (6 Cal., 559) the defendant objected to a
deposition offered by the plaintiff on the ground that the certificate did
not show that the deposition had been, as the law required, read to the
witness before he signed it. The court sustained the objection and said :

On the second point of objection we are satisfied that the deposition was properly
excluded ; the certificate was insufficient. It should have set out an actual compli-
ance with the statute.

In Stone vs. Stillwell (23 Ark., 444) objection was made to a deposition
offered in evidence on the ground that the certificate of the justice of
the peace did not state that the deposition was reduced to writing in his
presence, as required by section 13, chapter 55, of the digest. The pro-
vision of section 13 is this :

Every witness examined in pursuance of this act shall be sworn to testify the whole
truth, and his examination shall be reduced to writing in the presence of the person
or officer before whom the same shall be taken.

592 DIGEST OF ELECTION CASES.

The court said :

The justice states in his certificate " that the examination, responses, and statements
of said deponent were reduced to writing in my, anu by the said deponent sworn to
and subscribed in my presence, at the time and place aforesaid," &c. It is manifest
that the want of the word "presence" after the word "my," where it first occurs in
the certificate, was a mere clerical omission of the justice; and taking the whole cer-
tificate together it is evident that he meant to certify that the deposition was reduced
to writing in his presence.

But it is argued that the original stenographic notes were written out
in the presence of the notary public, and that this was a compliance
-with the statute. The authorities already cited are not consistent with
this position. The object is the authentication of the testimony now on
file with the Clerk of the House. And the agreement of the parties only
extended to the substitution of the long-hand transcript of the steno-
graphic notes, and did not waive anything but the signatures of the
witnesses thereto. The parties made no agreement that the depositions
in long-hand should be afterwards recopied by the contestant and his
agents out of the presence of the notary, and that these papers should
be forwarded, and the long-hand depositions made by the notary should
be destroyed. The part of the agreement bearing upon this matter is
as follows :

Fourth. That inasmuch as both parties intend to have the depositions of many of
the witnesses taken in short- hand by a stenographer, which will render it impossible
for such witnesses to subscribe to their depositions until the same shall be written out,
which, in many instances, cannot be done for some time after such depositions shall
have been taken; and inasmuch as the signatures of the witnesses in such cases could
only be procured by requiring a second attendance of such witnesses at considerable
inconvenience and expense to all parties interested ; therefore, in all cases where a
deposition is not subscribed to by the party making the same the signature of such
witness is hereby waived.

The contestant, Mr. Mackey, states that this rewriting of the deposi-
tions was done, not by agreement of the parties, but by agreement be-
tween the notary, Hogarth, and himself. But to our minds this conduct
of a public officer was a violation of his plain duty under the statute, to
retain the testimony in his own custody until forwarded, and this was
aggravated, not excused, by collusion between the officer and one of the
parties without the knowledge or consent of the other party.

We think, therefore, that the depositions substituted by the contest-
ant and his agents for the originals written by Hogarth should be sup-
pressed.

We do not consider that the papers offered as United States super-
visors' returns and the tabulated statement purporting to be made by
the chief supervisor are admissible in evidence for the reasons following :

1. The statute, so far as supervisors outside of the city of Charleston
are concerned, does not authorize or require such returns to be made by
precinct supervisors. The act of Congress (sec. 2029,17. S. Rev. Stat.)
prescribes that they

Shall have no authority to make arrests or to perform other duties than to be in the
immediate presence of the officers holding the election and to witness all their proceed-
ings, including the counting of the votes and the making of a return thereof.

It is only necessary to call attention to the opinions of the eminent
men of both political parties who construed this section at the time of
its passage as a measure of compromise between the Senate and House.
Their views were expressed as follows :

In the Senate the provision was explained by Mr. Edmunds, one of
the managers on the part of the Senate :

Mr. MORTON. I ask the Senator from Vermont if I understand correctly that this

MACKEY vs. O'CONNOR. 593

simply makes the supervisors silent spectators, without even the power to challenge
a vote?

Mr. EDMUNDS. No, sir; they have no power to challenge a vote except that which
belongs to a citizen under the existing laws. The House insisted upon hav-

ing this provision put in as a means of composing their differences in the other body,
to which we were forced to assent with a view to getting to an end. (91 Cong. Globe,
4495. )

The report of the last conference committee in the House, and the ex-
planations of Mr. Garfield and Mr. Xiblack, managers on the part of the
House, and of other Representatives, are printed on pages 4453 to 4455
of volume 91 of the Congressional Globe :

Mr. GARFIELD. The effect of this is that the supervisors authorized by this act stand
by and witness the proceedings of the election, and have the official right to stand by,
M> that, if frauds are being perpetrated, the Government of the United States may
have as witnesses a member of the Democratic party and one of the Republican party
to the facts in the case.'

Mr. SHELLABARGER. * * It seems to me, and I suggest it as an apprehension,

that this strips these supervisors or inspectors of the power both of challenge and also
of indorsing the certificates of election.

Mr. GARFIKLD. That may be true; but even if it be true, the presence of these offi-
cers, appointed by a judge, acts as a moral challenge.

Mr. BROOKS. I understand that they have not the power to give certificates of
election.

Mr. GARFIELD. I should say clearly not.

Mr. BROOKS. Nor have they any power to make any return.

Mr. GARFIELD. Nothing of* the kind.

Mr. NIBLACK. Mr. Speaker, the particular amendment under discussion with regard
to supervisors of election has been one of the most stubborn causes of difference be-
tween the two Houses that it has ever been my fortune personally to observe in con-
nection with a committee of conference. We have spent, first and last, some twelve
or fifteen hours in considering the amendments to this bill. The greater portion of
the discussion of any serious character has been directed to this particular amend-
ment. For mosfc of the time I despaired of the committee being able to make a report
which would meet the views of the majority of both Houses. From the first I an-
nounced the proposition that I could sign no report which recognized in any degree
the principle of Federal interference in State elections. * * * The power'of these
supervisors is reduced to that,of mere official witnesses of elections, with no other
power than to make complaint before the proper officers of the law, if they think the
election laws have been violated. * * * I think by allowing the bill to be voted
on we can save not only an extra session, but the continuance of this one beyond
nine o'clock this evening.

Mr. KERR. Under the language of that amendment I think it is perfectly clear, as a
question of law, that these two supervising witnesses will have neither right nor au-
thority to sign, or to superintend, or in any way to modify or to change the return of
the election. They may merely stand by and see how it is conducted.

1'. Xo certificate of an officer is admissible in evidence unless he is
required by law to make such certificate, for in such case only is it cov-
ered by the sanction of his oath. And matters not of record but of fact,
technically called matters in pais, cannot be certified by an officer, but
in such case the officer must testify as to the matters of fact.

3. The papers purporting to be the original returns of supervisors in
this case were produced, according to the. record of the case as printed,
by the contestant, Mr. Mac-key, and not by the chief supervisor, to
whom they are alleged to have been made. If they are the original re-
turns, it was a breach of official duty, which cannot be presumed against
the chief supervisor, to allow them to pass from his custody into the
hands of one of the parties to an election contest. In all cases where
such returns are authorized by law it is made the duty of the chief
supervisor either to keep them of record, as required by section 2026

He shall receive, preserve, and file all oaths of office of supervisors of election, and
of all special deputy marshals appointed under the pro visions of this title, and all cer-
tificates, returns, reports, and records of every kind and nature contemplated or made
requisite by the provisions hereof, save where otherwise herein specially directed

H. Mis. 35 38

594 DIGEST OF ELECTION CASES.

or in certain cases to forward the same to the Clerk of the House of
Bepresentatives, as required by section 2020 :

And prior to the assembling of the Congress for which any such Re'preseutative or
Delegate was voted for, he shall file with the Clerk of the House of Representatives
all the evidence by him taken, all information by him obtained, and all reports to
him made.

And section 2031 provides among his fees :

For filing and caring for every return, report, record, document, or other paper re-
quired to be filed by him under any of the preceding provisions, &c.

4. The written portions of five of the so-called original returns of super-
visors purporting to be the returns of Calhouu and Packsville precincts,
in Clarendon County ; of Hope Engine-house, in Charleston County ;
and of Branch ville and Kowesville, in Orangeburg County are in the
handwriting of Mr. Mackey, the contestant, and the Congressional re-
port of Fort Motte precinct, in Orangeburg County, also. And as to
one of these that of Calhoun precinct, in Clarendon County the figures
do not correspond with the tabulated statement for the same precinct,
purporting to be the statement of the chief supervisor, made from the
returns filed with him ; so that one or the other is false. In addition,
none of these papers introduced as the original returns so filed by the
precinct supervisors bear upon them any indorsement of their having
been filed with the chief supervisor, with the exception of three of them
(Eecord, pp. 207-210) ; and those three are not certified under seal, nor
do they appear to have been introduced in evidence pursuant to any
notice, or in presence of the notary or any of the opposite party at any
taking of testimony in the cause.

5. The papers purporting to be the statements of the chief supervisor
are not under seal, do not purport to be copies of records of his office,
but simply a compilation of his own of figures taken from sundry pa-
pers, nor is there any proof accompanying them that the person making
them is the chief supervisor.

THE CONTESTEE'S TESTIMONY.

An inspection of the manuscript testimony on file will show numerous
erasures and interlineations, many of them in the handwriting of the
contestant, Mr. Mackey. Mr. Charles E. O'Connor's affidavit shows
that these changes were made after Mr. Dibble's election ; and the con-
testant, Mr. Mackey, does not claim or pretend that Mr. Dibble had any
notice of them.

Mr. Charles E. O'Connor, in his affidavit (p. 7), says :

The work of correcting this testimony was begun in or about the middle of July,
1881, and certainly not earlier than the middle of June of that year, and that it con-
tinued from time to time, with frequent interruptions, during the summer months.
Deponent further says that this work was done solely \ipon the suggestion of the con-
testant, &c.

Mr. Dibble was elected June 9, 1881, and enrolled by the Clerk of the
House of Kepresentatives June 25, 1881.

The following is one of the numerous changes made in this part of the
testimony. The inspection of the manuscript (folios 905, 90C) shows that
this was written out originally as follows :

Q. Was not the number of Republican tickets seventy-eight ? When yon first
opened the box and counted the ballots in order to ascertain the whole number, did
you not put the whole number of Republican and the whole number of Democratic
tickets in separate piles ? A. No, sir j because we had such a large white vote.

MACKEY vs. O'CONNOR. 595

It now appears in the manuscript, by means of erasures and interline-
ations, and is printed as testimony, as follows :

Q. Was not the number of Republican tickets seventy-eight ? A. I think it was.

The substituted answer " I think it was" is interlined in the manu-
script in the handwriting of Mr. Mackey, and the answer originally
written in the manuscript, together with the portion of the question to
which it was responsive, entirely disappears by erasure.

We have, then, in this case the testimony of the coutestee in an unfin-
ished condition at the time of his death, and such testimony as had been
then taken changed after Mr. Dibble's election, by the contestant, Mr.
Mackey, and another not representing Mr. Dibble in any way, and with-
out Mr. Dibble's knowledge or consent ; and yet Mr. Dibble is called
upon to defend his seat upon the basis of such testimony, upon a notice
served upon him six mouths after his election, and after all these irreg-
ularities had been consummated. We cannot concur in such a deter-
mination.

II.

But, as we have already said, we think Mr.Dibble's rights are not to
be affected in any way by this record in the case of Mackey vs. O'Connor.
We have already given an outline of the facts connected with Mr. Dib-
ble's admission to his seat, and have quoted the words of the resolution
referring the credentials of Dibble and the record of the case of Mackey
vs. O'Connor to the Committee Qn Elections, which was laid upon the
table by the House, and have also shown that the House laid on the
table the motion to reconsider the vote on that resolution.

Let ns apply to these facts the principles of statute and parliamentary
law which appear to us to be applicable thereto. And in this connection
let us cite from our own recognized parliamentary compilation as to the
effect of the motion to reconsider and lay on the table. Smith's Digest,
page 292, concerning the motion "to lay on the table," contains this
language :

In the House of Representatives it is usually made for the purpose of giving a prop-
osition or bill its "death-blow"; and when it prevails, the measure is rarely ever
taken up again during the session. If the motion to "reconsider and lie" follow tins-
motion, and be carried, it can only be taken from the table by the unanimous consent
of the House.

And again (Ibid., p. 293) :

If a motion to reconsider be laid on the table, the latter vote cannot be reconsidered.
(Journals 3, 27, p. 334 ; 1, 33, p. 357.)

Mr. Gushing, in his " Law and Practice of Legislative Assemblies,"
after showing the distinction between the English and American laws
on the subject of legislative vacancies, proceeds as follows:

If it [i. e., a vacancy] occurs before the sitting or in a recess, and the new election
takes place without the previous authority of the assembly, the existence of a vacancy
must be determined upon when the member elected presents himself to take his seat.

In the history of vacancies in Congress, there is one case which in
many respects resembles the present. In May, 1867, George D. Blakey
and Elijah Hise were opposing candidates for Congress in the third
Congressional district of Kentucky, and four days after the election Mr.
Hise died. Mr. Blakey appeared before the State canvassing board,
and claimed to have been elected. The board decided that Mr. Hise
had been elected. Congress assembled thereafter on July 3, 1867 ; and
on July 5, 1867, a memorial of Mr. Blakey was presented to the House

596 DIGEST OF ELECTION CASES.

asking admission as a member from the said Congressional district, and
the memorial and accompanying papers were referred to the Committee
on Elections, who were instructed by the House, July 11, 1867, in relation
to taking evidence in regard to the same.

On July 20, 1867, Congress adjourned until November 21, 1867. Dur-
ing this interval, and while the Committee on Elections had under con-
sideration the claim of Mr. Blakey to the seat, a special election was held
in the third Congressional district of Kentucky, under writs of election
issued by the governor of Kentucky, to till the vacancy occasioned by
the death of Mr. Hise ; and at such special election, held August 5, 1867,
Mr. Golladay was elected, and on November 25, 1867, presented his cre-
dentials to the House.

An extended discussion followed. The distinguished chairman of the
Committee on Elections, Mr. Dawes, after conceding the ordinary rule
to be that charges touching " the legality of an election are matters
which pertain to a contest in the ordinary way, and should not prevent
a person holding the regular certificate from holding his seat," said :

I do not see how it is possible to apply the rules laid down there to this case, with-
out foreclosing Dr. Blakey from any further investigation of the question of a vacancy
existing at that time. (Cong. Globe, 1, 40, p. 783.)

Other members of the House took thepositiou that Mr. Golladay should
be seated prima facie, and that Mr. Blakey should be allowed to contest
with him the right to his seat.

The House adopted the view of Mr. Dawes, and, instead of allowing
Mr. Golladay to be sworn, referred his credentials to the Committee on
Elections. Eight days afterwards Mr. Dawes presented the unani-
mous report of the Committee on Elections declaring that Mr. Golladay
was entitled to the seat. (Cong. Globe, 2, 40, pp. 3, 56.) This report
was adopted by the House, and necessarily recognized that the writs of
election issued by the governor of Kentucky for the special election,
were valid, even though the House had under consideration the ques-
tion of the existence of a vacancy at the time. For had the writ of
election of the governor of Kentucky been prematurely issued, the elec-
tion would have been without legal sanction, and therefore invalid.
And this decision of the House was not inadvertently rendered, for Mr.
Blakey not only mentions in his memorial to the House that he had
protested before the State authorities against the holding of the special
election, but, in addition, reiterates it in his remarks before the House.
But the House refused to recommit the report of the committee, or-
dered the previous question, by a vote of 102 to 22, and adopted the
recommendation of the committee without a division. (Cong. Globe, 2,
40, pp. 57, 61.)

Now, to recapitulate. What principles are involved in this decision ?
The main doctrine is, that the right and duty of the executive of a State
to issue writs of election to fill vacancies in the House, derived from
article 1, section 2, of the Constitution of the United States, in advance of
any adjudication by Congress on the question of vacancy occasioned by
death, is to be exercised in contested cases as well as in ordinary cases,
thus applying to such cases the same principles so early settled in the
cases of Edwards (Clark & Hall, 92), Hoge (Clark & Hall, 136), and
Mercer (Clark & Hall, 44). And while as to the matter of practice in
the case of Golladay there was a difference of opinion as to whether
the credentials ought to be referred to the Committee on Elections, in
order to determine finally as to the existence of a vacancy before seat-
ing Mr. Golladay, who held the certificate, or whether Mr. Golladay
-should be sworn, and the right reserved to Mr. Blakey to contest his

MAC-KEY vs. O'CONNOR. 597

seat, there was no dissent from the proposition of Mr. Dawes, that if
Mr. Golladay were sworn in without such reservation, Mr. Blakey
would be foreclosed -'from any further investigation of the question of
a vacancy existing at that time."

Now, hi the present case, not only was there no reservation of the
right to contest Mr. Dibble's seat when he was sworn in, but the House,
by a very decided vote, tabled a motion to refer the credentials of Mr!
Dibble and the papers in Mac-key rs. O'Connor to the Committee on
Elections, and tabled a motion to reconsider its vote thereon.

We do not mean to say, nor have we ever understood Mr. Dibble to
contend, that it is beyond the power of the House to make inquiry into
his right to his seat by such means as it may see fit to adopt in an
investigation de novo. Such an investigation would give to the sitting
member the opportunity, which he has never enjoyed, of defending his
sear by pleadings of his own, and- such proofs as he may be disposed
to oft'er in his cause. It must be borne in miudt hat by the action of
the House itself Mr. Dibble was placed in full possession and enjoy-
ment of the office of member, on December 5, 1881. This possession
was clear from any qualification, reservation, or condition ; it was as
absolute as the possession of any member on the floor. Can it be said
a contest was pending in the case of Mackey rs. O'Connor ? The an-
swer is that the House had decisively given "its death-blow" to the mo-
tion to make Mr. Dibble a party to that contest before he was sworn in.

It is premature to discuss and to pass judgment upon the effect of
The election of November, 1880, upon the special election of June, 1881 r
because it is a mere speculative inquiry, until by some order of the
House, which order has never yet been made, the sitting member is
placed in the position of a party to a contest, either under the statute
or under a special order of the House adopted for the specific case.

If we look at the statute we find the following language :

SEC. 105. Whenever any person intends to contest an election of any member of the
House of Representatives of the United States, he shall, within thirty days after the
result of such election shall have been determined by the officers or board of canvass-
ers authorized by law to determine the same, give notice, in writing, to the member
whose seat lie designs to contest, of his intention to contest the same, and in such no-
tice shall specify particularly the grounds upon which he relies in the contest.

Section 106 provides for an answer by the member thus served with
notice. Section 107 provides for the taking of testimony, and incident-
ally, but without doubt, defines the term member to mean " returned
member."

Now, there is nothing in the statute to limit its application to gen-
eral in contradistinction to special elections. " To contest an election
of any member" is broad and comprehensive ; and in this category
Mr. Dibble, as a " returned member," certainly may be embraced. Mr.
Dibble was certainly elected at an election regularly held according to
law. The cases of Hoge (Clark & Hall, 136), Edwards (Clark &
Hall, 92), and Mercer (Clark & Hall, 44), and the case of Blakey 99.
Golladay settle that. The action of the House in searing Mr. Dibble
recognizes the fact, and puts it beyond dispute. It is unnecessary to
cite authorities to show that questions concerning the legality of an
election are proper matters of contest under the statute ; they have
been so treated in numerous cases.

And when we consider that Mr. O'Connor, the "returned member**
of the November election, had a right to a seat only so long as he
lived, and had no inheritable or transmissible interest to be affected
after his death, it is enough to state that a contest for his seat after his-

598 DIGEST OF ELECTION CASES.

death is a contest for something that had ceased to exist. The only
relation that could exist between himself and auy one that succeeded
him was a relation of time, not a relation of privity. It cannot be
said that because Mr. O'Connor was elected for a term of two years he
had a right in himself and his privies for two years whether he lived
or died. He only had a right for two years, provided he should live ;
the very fact of his death creating a vacancy shows that his right was
absolutely gone at his death. And for any one else to have or claim a
right the original granting power, i. e., the people, had to be invoked,
and they alone had the right to bestow the remainder of the term. lu
law the case of a suit against a life tenant is analogous. Can any one
claim that where one of two litigants of a close the one in possession
dies, and another person enter into possession of the disputed terri-
tory under a fresh grant from the sovereign, that the tenant thus enter-
ing can be ousted upon the proceedings had against his predecessor,
such predecessor being neither his ancestor or grantor, but simply a
life tenant I And shall the right of a member of this House to his seat,
a right held to be a right of property, be decided on principles antago-
nistic to those which govern the decisions of other rights of property :'
We think not.

Eecurring to the statute, we think it a reasonable construction of the
same, when we come to the conclusion that Mr. Dibble, as the returned
member of the House, was entitled to the notice required thereunder,
in like mauer as a member elected and returned at a general election.
One thing is certain, that it was in the power of Mr. Mackey to serve
such notice, and to state as his grounds the same reasons he now ad-
vances for contesting the election of Mr. Dibble, and if the evidence
taken in the previous contest of Mackey rs. O'Connor were competent
in the new case, he had the opportunity of submitting it on notice, as
evidence in a contest against Mr. Dibble thus inaugurated, and we fail
to find any statutory means by which Mr. Dibble, after his election,
could, by any act of his, become a party to the case of Mackey vs.
O'Connor.

This being the case, and the House having seated Mr. Dibble, is there
any precedent in law or in the decisions of this House in contested cast's.
whereby the party in possession of his seat should go out to hunt an
adversary? Is he to be the actor in any way I We fail to find any such
precedent, and can only come to the conclusion that Mr. Mackey, hav-
ing neglected to avail himself of the opportunity afforded him by the
terms of the statute, whereby he could have inaugurated a contest in
the usual form, in the first instance either willfully or mistakenly piv-
vented Mr. Dibble from being a paity to the issues he is now trying to
force upon him.

Failing toafiud in the statute any mode whereby Mr. Dibble could be
made a party to the case of Mackey vs. O'Connor, and finding in it a
mode whereby Mr. Mackey might have made the issues with Mr. Dibble,
on which he now invokes the judgment of the House, but did not so take
issue with Mr. Dibble, we cannot come to the conclusion that the usual
resolution of reference to the Committee on Elections, of contested cases,
adopted December 21, 1881, operated to revive the case of Mackey v*.
O'Connor, which had received "its deathblow" by the action of the
House itself over two weeks previously to that time. Such resolution
certainly did not make Mr. Dibble a party to the case of Mackey vs.
O'Connor; and we fail to find any action of the House which at any
time had that effect. It therefore seems to us, that if the case is within
the statute, then Mr. Mackey has neglected to give the notice prescribed

MACKEY vs. O'CONNOR. 599

by the statute to be given to the member whose "election" is to be con-
tested ; and, on the other hand, if the case be outside of the statute, the
House has never taken any order for proceedings in the matter against
Mr. Dibble, the sitting member, and without such order the committee
are without jurisdiction to act concerning Mr. Dibble in the premises,
having neither the statute nor any precedents of the House on which to
support such claim for jurisdiction.

Under that provision of the Constitution which makes the House of
Representatives the judge of the election, returns, and qualifications
of its members, the House may adjudicate the question of right to a
seat in either of the four following cases : (1) In the case of a contest
between a contestant and a returned member of the House, instituted
in accordance with the provisions of title 2, chapter 8, of the Revised
Statutes ; (2) in the case of a protest by an elector of the district con-
cerned ; (3) in the case of a protest by any other person ; and (4) on
the motion of a member of the House. The proceeding in the first of
these cases is, by the Eevised Statutes, made a proceeding inter partes
a suit or action in which the contestant is plaintiff and the returned
Representative defendant.

A case adjudicated by the House on the protest of an elector, or other
person, or on the motion of a Representative, is not an action inter par-
tes. It is a proceeding under the Constitution, and not under the
statute.

The action inter partes provided for by the Revised Statutes abates
ou the death of either party. While the power of the House to adjudi-
cate any question of title involved in that action survives, the action
itself abates upon the death of either party thereto.

It follows that the contest of Mackey vs. O'Connor abated on the death
of Mr. O'Connor. That contest was an action inter partes. It was the
technical action specially provided for in the Revised Statutes.

If the House shall hereafter adjudicate any of these questions, in a
proceeding against Mr. Dibble, it will have the power, under the Con-
stitution, to provide the rules for such adjudication.

When the House undertakes the adjudication of the right of a mem-
ber to his seat on the protest of an elector or other person, or on the
motion of a Representative, it does not look to the statutes for its rules
of procedure ; it prescribes its own rules, in the exercise of its unques-
tionable constitutional power. If it finds any of the rules prescribed
by law for technical contests available and useful in the case it adopts
them. Such rules then have force, not because found in the statutes,'
but because adopted by the House. But this constitutional power of
the House to prescribe the rules for such adjudications is not an abso-
lute or undefined power to be arbitrarily exercised by the House. Like
every other constitutional power of the House, it is to be exercised in
subordination to those principles of justice which lie at the root of the
Constitution and send their influences through all its provisions. For
an adjudication made on the protest of an elector or other person, or
on motion of a Representative, the House has no constitutional right to
prescribe any rules which shall bind the sitting member by pleadings
or averments which he never made, by the testimony of witnesses whom
he never had an opportunity to examine or cross-examine, by stipula-
tions or admissions, or waivers which he never made, or by laches which
he never incurred. The House has no right to make the title of a Rep-
resentative to his seat subject to the acts or omissions, the diligence or
laches, the wisdom or folly, of another man.

But if it were conceivable that the contest, which is by the Revised

600 DIGEST OF ELECTION CASES.

Statutes so clearly made a proceeding inter paries, could survive one of
the parties, it would, nevertheless, be certain that when the House
seated Mr. Dibble on his credentials that contest was dismissed and
passed from the jurisdiction of the House. From the time when Mr,
Dibble took his seat, in pursuance of the resolution of the House, it was
Ms right to that seat which was to be assailed by any contestant, or claim-
ant, or protestaiit. Since that time Mr. (J 'Connor's right has been a ques-
tion for the adjudication of the House, not because it was once involved
in the contest of Mackey vs. O'Connor, but because it is now involved in
the question of Mr. Dibble's right to the seat which he occupies. When
the House admitted Mr. Dibble to the seat without condition or reserva-
tion it invested him with the right which belongs to other sitting mem-
bers under the Constitution and the law to receive due notice of any
proposed contest, to have the opportunity to answer, to examine his
own witnesses, to cross-examine those -of his opponents, and to be con-
cluded by no acts, omissions, stipulations, laches, or waivers except h:s
own.

It may, perhaps, be suggested that the contest of Mackey vs. O'Con-
nor was revived and referred to the committee by the resolution which
was adopted December 22, 1881, in the following words:

Resolved, That all of the testimony and all other papers relating to the rights of
members to hold seats on this floor in contested cases now on file with the Clerk of this
House or in his possession, and all memorials, petitions, and other papers now in the
possession of this House, or under its control, relating to the same subject not other-
wise referred, be, and the same hereby are, referred to the Committee on Elections,
and ordered to be printed.

But the answer is obvious. The resolution did not refer to the com-
mittee papers which related to abated contests, but only those which
related to pending contests. It did not revive dead suits. It only re-
ferred to the committee papers which related to existing suits. An
order of reference places a paper before the committee for what it is
worth. It imparts no new legal character or quality to the paper. It does
not transform an answer in the case of Mackey vs. O'Connor into an an
swer iu the case of Mackey vs. Dibble. It does not transform illegal evi-
dence into legal evidence. It does not transform a witness for or against
Mr. O'Connor into a witness for or against Mr. Dibble. It does not trans-
form an admission, stipulation, or waiver by Mr. O'Connor into an ad-
mission, stipulation, or waiver by Mr. Dibble. It does not transform a
dead suit, to which the papers relate, into a revived and pending action.

The tirst and only notice of contest of his seat ever served on the sit-
ting member, Mr. Dibble, by Mr. Mackey, was not served until January
4,1882. Thereupon Mr. Dibble filed with the committee a protest against
the committee's proceeding to consider and act upon the case of Mac-key
vs. O'Connor, because it was evident from the notice served by Mr.
Mackey that ic was the intention of the contestant to assail his right to
his seat by means of a case to which he was not a party. But a majority
of the committee decided to proceed with the case, and overruled the
protest of the sitting member. For the reasons already set forth, we
are of the opinion that the protest should have been sustained.

We cannot concur in establishing as a precedent that a member of
this House, duly admitted to his seat, can be rightfully removed there-
from without any opportunity of defending his title thereto, either by
pleading his defense, or by introducing evidence in his behalf. Xor can
we subscribe to the opinion that the Committee on Elections, under its
ordinary powers, can summon a member of this House to defend a cause
in which he is not the contestee, in which he is in no way named as a
party, and iu which the House has not only not required him to appear,

MACKEY vs. O'CONNOR.

601

but'has by its action declined to make him a party. If such a prece-
dent is to be established, it will be giving to the Committee on Elections
jurisdiction to act outside of the statute, and to inquire as to the seat
of any member on the floor at its discretion, and without the order of
the House.

III.

A few words as to ths claim of the contestant concerning the prima
facie case.

On pp. 10, 11 of the printed Eecord, we find that the contestant him-
self introduced the following certificate :

STATE OF SOUTH CAROLINA,

Office of Secretary of State :

I, R. M. Siois, secretary of state, do hereby certify that the following is a correct
statement of the total number of votes cast in the several counties comprising the
second Congressional district of South Carolina, and also of the votes cast for a mem-
ber of Congress from said district at the general election held November 2d, 1880, as
certified to by the State board of canvassers :

Total No.

M. P.
O'Connor.

E. W. M.
Mackey.

Charleston

19 541

11 429

8 112

Orangeburg

6,339

3,627

2,712

Clarendon

3,986

2,513

1,473

29, 866

17, 569

12, 29T

Witness my hand and the seal of State, at Columbia, this 20th day of January, A.
D. 1881, and in the 105th year of American Independence.

[SEAL.] R. M. SIMS,

Sec. State.

In his brief (p. 4) he claims that certain boxes were not counted by
the county canvassers, and also claims the vote thereat to have been as
below copied from said brief. Without conceding the sufficiency of the
evidence of the said votes, for reasons hereinbefore stated, we give hia
figures as claimed in his brief, page 4, as follows :

M. P.

O'Connor.

E. W. M.
Mackey.

Calamus Pond . . .

110

511

573

380

161

385-

Brick Chnrch

732

Ten-mile Hill

603

Blck Oak

393

Fo^le's .

Fort Motte

279

236

700

Bookhardt's

212

895

5,022

Applying these figures to the vote canvassed, we have the following
summary, viz:

602 DIGEST OF ELECTION CASES.

O'Connor.

Mackey.

Vote canvassed

17, 569

12 297

"Votfi rlaitnpil hy TWflpTrpy in )iis hj'ifvf n^ r\nt rf"f"-' > '' , , . T , ....

895

5 022

18, 464

17, 319

This still leaves O'Connor a majority of 1,145 on the prima facie case.

The contestant attempts to overcome this by secondary evidence of
various kinds; but we find in the way of considering this secondary
evidence the objections heretofore alleged, going to the authenticity
and genuineness of the testimony as filed. It would be extremely dan-
gerous to establish as a precedent the admissibility of parol testimony
to overturn the official returns of an election, and, in addition, to accept
a copy of such parol testimony, made by one of the parties and his
agents, in place of the original testimony by such party destroyed.

But the contestant goes further, and claims a majority of 9,278 ; and
in order to arrive at this conclusion, he takes for granted that the bal-
lot-boxes were stuffed by Democrats, but that every Republican voted
but a single vote, in the face of the fact that the very papers on which
he relies as supervisor's returns to establish his case state that Repub-
lican ballots were found in the boxes when opened with other Repub-
lican ballots folded inside at ten different polling precincts, viz: In
Charleston County, at court-house (p. 28), Marion engine-house (p. 75),
Henderson's store (p. 92), Piuopolis (p. 124), and Mount Pleasant (p.
137); in Orangeburg County, at Jamison's (p. 226), Washington Semi-
nary (p. 243), and Cedar Grove (p. 260) ; in Clarendon County at Fork
(p. 314), and Jordan's (p. 330); and also in face of the fact that the Re-
publican supervisor of Orangeburg poll, one of his own witnesses, testi-
fies that two Republicans were caught in the act of voting double tick-
ets at that poll (p. 232).

In addition to this, the testimony of a manager at Griffin's poll (p. 637),
introduced in behalf of contestee, and uucontradicted, is to the effect
that when the box was opened 51 Republican tickets were discovered
folded together in sundry packages.

We cite these merely to show that this claim of the contestant, so in-
trinsically improbable, is defeated by the very papers by which he is
attempting to overthrow the returns of the election, as declared by the
lawful authorities of the State.

This extraordinary creation of a majority for the contestant does not
appear to be equaled in any instance in our knowledge, unless it be in
the case of Buttz vs. Mackey, in the Forty-fourth Congress, in which
the present contestant was contestee, and in which his seat was vacated
on proof (inter alia} that 25 of his supporters deposited for him over 600
votes, by voting for him twice at every precinct but one in the City of
Charleston. (See Smith's Dig. Elec. Cases, p. 685.)

The undersigned, for the foregoing reasons, recommend the adoption
of the following resolution, as a substitute for the resolutions reported
by the majority of the committee :

Resolved, That the contest entitled E. W. M. Mackey vs. M. P. O'Con-
nor, for a seat in the Forty-seventh Congress of the United States for
the second Congressional district of South Carolina, be dismissed.

S. W. MOULTOX.
G. ATHERTO^.

STOLBRAXD VS. AIKEX. 603

CARLOS J. STOLBRAXD vs. D. WYATT AIKEX.

THIRD CONGRESSIONAL DISTRICT OF SOUTH CAROLINA.

In this case the testimony on behalf of contestant was taken before a United States
commissioner, and the contestee at the time objected and exceptea to the com-
petency of the officer.

Held, That the officers authorized to take testimony in cases of contested elections are
specially designated by statute, and United States commissioners not being so
designated cannot act without the written consent of the parties. Contest dis-
missed.

The House adopted the report.

APRIL G, 1882. Mr. G. TV. JONES, from the Committee on Elections,
submitted the following

REPORT:

The Committee on Elections, to whom was referred the case of C. J. Stol-
brand vs. D. Wyatt Aiken,from the third Congressional district of South
Carolina, having had the same under consideration, respectfully submit
the following report:

All the testimony in the case was taken in behalf of the contestant
before E. W. Stoeber, United States commissioner. The coutestee, at
the threshold, excepted to the competency of the officer.

The following are the statutory provisions applicable to the question
raised by the exception.

Revised Statutes, p. 19 :

SKCTIOX 110. When any contestant or returned member is desirous of obtaining
testimony respecting a contested election, he may apply for a subpoena to either of
the following officers who may reside within the Congressional district in which the
election to be contested was held:

First. Any judge of any court of the United States.

s.-coud. Any chancellor, judge, or justice of a court of record in the United States.

Third. Any mayor, recorder, or inttndent of any town or city.

Fourth. Any register in bankruptcy or notary public.

SEC. 111. The officer to whom the application authorized by the preceding section
is made shall thereupon issue his writ of subpoena, directed to all such witnesses as
shall be named to him, requiring their attendance before him at some time and place
named in the subpoena, in order to be examined respecting the contested election.

SEC. 112. In case none of the officers mentioned in section one hundred and ten are
residing in the Congressional district from which the election is proposed to be con-
test* -d, the application thereby authorized may be made to any two justices of the
peace residing within the district ; and they may receive such application and jointly
proceed upon it.

SKC. ll:.{. Ir shall be competent for the parties, their agents or attorneys authorized
to act in the premises, by consent in writing, to take depositions without notice; also, by
such written consent, to take depositions (whether upon or without notice) before any
officer or officers authorized to take depositions in common law, or civil actions, or in
chancery, by either the laws of the United States or of the State in which the same
may be taken, and to waive proof of the official character of such officer or officers.
Any written consent given as aforesaid shall be returned with the depositions.

The officers authorized to take testimony are specially designated.

604 DIGEST OF ELECTION CASES.

It is, however, specially provided that u by written consent" testimony
may be taken before certain other officers mentioned. United States
commissioners are not mentioned in the first class, and, if included in
the latter, cannot act without the written consent of the parties.

It is apparent that the exception is well taken, and must be sus-
tained.

It is insisted that the House of Representatives, in judging of the elec-
tions, qualifications, and returns of its members, is not bound by the
rigid rules of judicial procedure. This is true, but applies only to ex-
ceptional cases, not provided for by the " rules prescribed." It would
be worse than idle to prescribe rules if they may be, willfully and unneces-
sarily disregarded.

This view is decisive of the case, and renders unnecessary further
statement of it.

We recommend the adoption of the following resolution :

Resolved, That C. J. Stolbraud have leave to withdraw his papers.

GEORGE Q. CANNON vs. ALLEN G. CAMPBELL.

TERRITORY OF UTAH.

Contestant alleges that he received 18,563 votes against 1,357 cast for contestee, and
was legally elected Delegate from the Territory of Utah.

Contestee denies that 18,568 votes were legally cast for contestant ; that contestant
was not eligible or qualified to be elected or serve as snch Delegate because he
was annnnaturalized alien ; and because he was a polygamist living and cohabit-
ing with plural wives.

Held, That contestant did receive the highest number of votes cast. Certificates of
returns of elections made by county canvassing boards to the secretary of the
Territory, under the Territorial law, constitute the proper mode to be pursued in
the Territories in respect to the election of Delegates ; and such records duly au-
thenticated by a seal will be received in evidence without having been first in-
troduced in evidence before the magistrate who takes and certifies the deposi-
tions.

Contestant was duly naturalized as appeared by his certificate of naturalization and
by the record of the court, which latter cannot be collaterally questioned.

Delegates are the creatures of statute, and the legislative branch of the Government
may abolish the office altogether.

The House may at any time by a majority vote exclude from the limited membership
which it now extends to Delegates from Territories any person whom it may for
any reason judge to be unfit to hold a seat as a Delegate. And contestant,- hav-
ing admitted that he has plural wives, and that he teaches and advises others to
the commission of that offense, he should be excluded from the House.

Contestee, however, having only received a minority of the votes cast, was not elected,
and the seat is declared vacant.

The House adopted the majority report.

CANNON VS. CAMPBELL. 605

FEBRUARY 28, 1882. Mr. CALKINS, from the Committee on Elections
submitted the followiug

REPORT :

jN THE MATTER OF THE CONTEST OF GEORGE Q. CANNON AGAINST
ALLEN G. CAMPBELL, TERRITORY. OF UTAH.

VIEWS OF ME. CALKINS.

Your committee, to whom was referred the said contest between the
parties for the seat, having had the same under consideration, beg leave
to make the following report :

On the 20th day of January, 1881, from the city of Washington, the
contestant, Geo. Q. Cannon, served on the contestee the following notice
of contest :

WASHINGTON', D. C., January 20, 1882.
ALLEN G. CAMPBELL, Esq. :

SIR : I have the honor to notify you that I shall contest your right to hold a seat in
the House of Representatives of the Forty-seventh Congress of the United States as
Delegate from the Territory of Utah, and also your right either to be sworn or en-
rolled, or to hold a certificate of election as such Delegate, on the following grounds:

1. That the returns of the election of Delegate to the Forty-seventh Congress of the
United States, held on the 2d day of November, 1830, in the several counties of the
Territory of Utah, which were prepared and forwarded to the secretary of the Terri-
tory, under sections "23 and 24 of the compiled laws of the Territory of Utah, copies
of which returns, marked respectively A, B, C, D, &c., are hereto annexed, showed,
as the fact was, that 18,568 votes were legally cast for me at said election ; that only
1,357 votes were cast for you, and that only 8 votes were cast for all other candidates,
and that I was therefore legally elected to said office of Delegate from the Territory of
Utah in the Forty-seventh Congress, and was also entitled to receive the certificate of
election, and to be enrolled and sworn as such Delegate. .

2. That said returns showed, as the fact was, that you received less than one-thir-
teenth of the votes legally cast at said election, and therefore were not entitled to hold
the said office of Delegate from the Territory of Utah in the Forty-seventh Congress,
or to be enrolled or sworn as such Delegate, or to receive the certificate of election to
said office.

3. That the action of the governor of the Territory of Utah in withholding the
certificate of election from me, and giving it to you, was illegal and fraudulent.

Very respectfully,

GEO. Q. CANNON.

The exhibits attached to and forming a part of the notice of contest
were certificates made by the secretary of Utah Territory, under the
seal of the Territory.

On the 26th day of February, 1881, Mr. Campbell, the coutestee, an-
swered the notice so served on him, in the following words :

SALT LAKE CITY. UTAH,

February '26th, 1881.
GEORGE Q. CANNON, Esq. :

SIR : To your notice of January 20th, 1881, served on me on the 4th day of the pres-
ent month,'to the effect that you will contest my right to hold a seat in the House of
Representatives of the Forty-seventh Congress of the United States as Delegate from
the Territory of Utah, &c., I have the honor to answer in respect to the facts alleged
li v you, and to state the grounds on which I rest the validity of my election, as follows:

1. I admit that returns of the election of Delegate to the Forty-seventh Congress of
the United States, held on the 2d day of November, 1881, in the several counties of the
Territory of Utah, were made to the secretary of said Territory, of which copies are
annexed to your notice and referred to therein as marked respectively A, B, C, D, &c.,
but I deny that said returns showed, or that the fact was, that 18,568 votes were
legally cast for you at said election, or that you were legally or otherwise elected to
said office of Delegate from the Territory of Utah in the Forty-seventh Congress, or
entitled to receive the certificate of election, or to be enrolled, sworn, or otherwise in

606 DIGEST OF ELECTION CASES.

any manner recognized as such Delegate. I deny that said returns showed, or that
the fact was, that I received less than one-thirteenth of the votes legally cast at said
election, or that I was not entitled to hold the said office of Delegate from the Terri-
tory of Utah in the Forty-seventh Congress, or to he enrolled and sworn as such Del-
egate, or to receive the certificate of election to said office.

I deny that the action of the governor of the Territory of Utah in withholding the
certificate of election from you, and in giving it to me, was illegal or fraudulent.

And I allege as grounds of the foregoing denial and of my claim that my election
was valid, as follows :

1. No statute, Federal or Territorial, required or authorized said returns of said
election to be placed before the governor of said Territory, or that authorized or re-
quired him to open or inspect said returns as the whole or any part of the evidence on
which he was required to determine the result of said election, and this state of the
law has been judicially declared in said Territory.

2. Said returns do not disclose the names, sex, or qualifications of the voters whose
votes are therein aggregatively stated.

3. A large number of the voters who voted for you were females, and therefore not
qualified to vote for members of the legislative assembly in said Territory, and conse-
quently not qualified to vote for Delegate to Congress at said election. The number
of such illegal votes can only be estimated, but such votes were given in all the coun-
ties in relatively large numbers and are an undistiuguishable part of the votes men-
tioned in each of said returns.

4. Yoii were not at the date of said election eligible or qualified, nor capable of
being made eligible or qualified, to be elected to or serve in said office of Delegate.
because yon were born a subject of Great Britain and have never been naturalized as
a citizen of the United States; yon are not a man of good moral character : you are
not attached to the principles of the Constitution of the United States, nor well dis-
posed to the good order and happiness of the same ; you have been for many years a
polygamist, living and cohabiting with four women as wives, to whom you have
joined yourself by a pretended ceremony of marriage ; you do not loyally yield assent
and obedience to the act of Congress against polygamy in the Territories ; you have
for imauy years last past publicly endeavored to incite others to violate that statute
in the Territory of Utah; therefore all the votes given for you at said election are
void.

5. At the time of said election, on the second day of November, 1880, you Tvere known
throughout the Territory of Utah to be an alien and not eligible to said office of Del-
egate. All the persons voting for you -were aware and had full notice that you were
an alien, unnaturalized, and disqualified to hold any office under the laws of the United
States, or of any of the Territories thereof.

6. I am a native-born citizen of the United States, and qualified by age and resi-
dence in said Territory to be elected at said election to said office of Delegate to the
House of Representatives of the Forty-seventh Congress of the United States, and
besides eight scattering votes cast at said election, I received all the legal votes given
at said election for said office of Delegate in the Forty -seventh Congress from the Ter-
ritory of Utah ; that on the 8th day of January, 1881, the governor of said Territory, in
pursuance of the statute in such case made and provided, and in the due and regular
exercise of the power in him vested, did declare and certify, under his hand and the
great seal of said Territory, that I was the person having the greatest number of
votes, and therefore duly elected as Delegate from said Territory to said Congress.

Respectfully, yours,

A. G. CAMPBELL.

The issne was thus formed on three distinct grounds : There was an
allegation by the contestant that he was elected by reason of his having
received the" largest number of legally-cast votes, as shown by his ex-
hibits attached to his notice. To this Mr. Campbell, the contestee,
answered, denying the notice of contest on the first ground, namely,
that of having received the highest number of votes. His denial was
qualified. Affirmatively he alleged that Mr. Cannon was not a citizen
of the United States, but was an unnaturalized alien ; and, in the next
place, that he was a polygamist, living in open violation of the laws of
the United States, and that for these reasons he was disqualified. Thus
three questions were presented to this committee for decision :

First. Did Mr. Cannon receive the highest number of legally-cast
votes for the office of Delegate in Congress ?

Second. Was he a citizen of the United States at that time, or has he

CANNON VS. CAMPBELL. 607

since become a citizen, and did he possess the other necessary qualifi-
cations to be a Delegate in Congress ?

Third. Was he a polygainist at the time of his election ; and, if so,
is that a disqualification ?

At the threshold of this case we were met with a certificate held by
Mr. Campbell, the coutestee, from the governor of Utah Territory. We
decline to enter into a discussion of the prima facie right of Mr. Camp-
bell to take his seat as a Delegate on this certificate, because we con-
strue the action of the House in passing on it as a decision adverse to
Mr. Campbell, and, being compelled to report on the whole case, we
deem it a piece of supererogation to reopen the case of the prima facie
right, being satisfied with the action of the House thereon. We dis-
miss that part of the case from further consideration.

The next question that meets, us is a question of practice raised by
the contestee ; which is, that there is no competent evidence before the
committee relative to the number of votes cast for Mr. Cannon at the
last election, and it is therefore contended that, on the certificate is-
sued by the governor to Mr. Campbell, he is entitled pro confesso to the
seat on the final hearing.

The facts before us are as follows : A certified transcript made by the
Secretary of the Territory, under the seal thereof, was filed by Mr. Can-
non with the Clerk of the House of Eepresenta.tives on the day of No-
vember, 1880, and was duly referred to this committee under a resolu-
tion of the House adopted on the day of December, 1881. It did

not reach the committee at the same time that the other papers in the
contest came into its possession ; but shortly thereafter it was sent by
the Clerk of the House to this committee. These certificates purport
on their face to be certified transcripts of the returns made by the county
canvassing boards to the secretary of the Territorv, under the laws of
Utah.

We therefore hold that certificates of election made by county
canvassing boards to the secretary of the Territory (under the Ter-
ritorial law relative to the election of other Territorial officers of
the Territory see sections 22, 23, and 38, et seq.) constitute the proper
mode to be pursued in the Territories in respect to the election of
Delegates ; and that that mode gives effect to the law, which makes
it the duty of the governor to canvass the votes, and to give a certificate
to the person receiving the highest number of votes for Delegate in Con-
gress. It has been the practice of this committee to receive all records
duly authenticated by a seal, without having them first introduced be-
fore the magistrate who takes and certifies the depositions. We know
of no other practice that has obtained since the foundation of the gov-
ernment. This class of evidence has never been held to fall within the
meaning of the law passed by Congress relative to contested-election
cases. The testimony there referred to is the testimony of witnesses, or
the introduction of such documents as need identification or further
proof before their competency is admitted ; and we hold that it does
not apply to records and evidence which a seal may make perfect with-
out further identification. If the contestee has been or is surprised at
the introduction of this testimony, his proper course is to make appli-
cation for a continuance, so that he may be allowed to take further tes-
timony. Xot having made such application, we presume that he does
not wish to avail himself of that course in this case. McCrary seems to
hold the better practice to be otherwise (section 362), but section 353 so
modifies the doctrine first laid down that it is not in conflict with the
view the committee take.

608 DIGEST OF ELECTION CASES.

We therefore find that the evidence establishes that Mr. Cannon re-
ceived 18,568 votes ; that Mr. Campbell received 1,357 votes; and that
there were scattering 8 votes. Mr. Cannon, therefore, received a ma-
jority of all the votes cast at the November election of 1880, and is duly
elected a Delegate from the Territory of Utah, unless he is disqualified
from holding a seat for one or more of the reasons alleged in the answer
of the contestee.

CITIZENSHIP.

We next examine the question as to citizenship. The following are
the statutory provisions relative to the naturalization of aliens :

Any alien, being a free white person, may be admitted to become a citizen of the
United States, or any of them, on the following conditions, and not otherwise:

First. That he shall have declared, on oath or affirmation, before the supreme,
superior, district, or circuit court of some one of the States, or of the Territorial dis-
tricts of the United States, or a circuit or district court of the United States, three
years at least before his admission, that it was, bona fide, his intention to become a
citizen of the United States, and to renounce forever all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty whatever, and particularly, by name,
the prince, potentate, state or sovereignty whereof such alien may, at the time, be a
citizen or subject.

Secondly. That he shall, at the time of his application to be admitted, declare on
oath or affirmation, before some one of the courts aforesaid, that he will support the
Constitution of the United States, and that he doth absolutely and entirely renounce
and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sov-
ereignty whatever, and particularly, by name, the prince, potentate, state, or sover-
eignty whereof he was before a citizen or subject ; which proceedings shall be re-
corded by the clerk of the court.

Thirdly. That the court, admitting such alien, shall be satisfied that he has resided
within the United States five years at least, and within the State or Territory, where
such court is at the time held, one year at least ; and it shall further appear to their
satisfaction, that during that time he has behaved as a man of good moral character,
attached to the principles of the Constitution of the United States, and well disposed
to the good order and happiness of the same ; provided that the oath of the applicant
shall, in no case, be allowed to prove his residence. (2 Stat., 153.)

Any alien, being a free white person and a minor, under the age of twenty-one years,
who shall have resided in the United States three years next preceding his arriving
at the age of twenty-one years, and who shall have continued to reside therein to the
time he may make application to be admitted a citizen thereof, may, after he arrive s
at the age of twenty-one years, and after he shall have resided five years within the
United States, including the three years of his minority, be admitted a citizen of the
United States, without having made the declaration required in the first condition of
the first section of the act to which this is in addition, three years previous to his ad-
mission ; provided such alien shall make the declaration required therein at the time
of his or her admission ; and shall further declare, on oath, and prove to the satisfac-
tion of the court, that for three years next preceding, it has been the bwia fide inten-
tion of such alien to become a citizen of the United States; and shall, in all other re-
spects, comply with the laws in regard to naturalization.

Mr. Cannon presented to the committee, and it is also in evidence,
the following certificate of naturalization :

United States first district court for the Territory of Utah.

UNITED STATES OF AMERICA,

Territory of Utah, Greai Salt Lake County, 88 :

Be it remembered, that on the seventh day of December, A. D. 1854, George Q. Can-
non, a subject of Queen Victoria, made application and satisfied the court that he cauie
to reside in the United States before he was eighteen years of age ; and thereupon the
said George Q. Cannon appeared in open court and was sworn in due form of law, and
on his oath did say, that for three years last past it has been his bonafide intention to
become a citizen of the United States; and to renounce and abjure, forever, all alle-
giance and fidelity to every foreign prince, potentate, state, and sovereignty whatever.
And thereupon, the court being satisfied by the oaths of Joseph Cain and Elias Smith,
two citizens of the United States, that the said George Q. Cannon for one year last

CANNON VS. CAMPBELL. 609

past has resided in this Territory, and for four years previous thereto, he resided in the
United States; that daring that time he has behaved as a man of good moral char-
acter: that he is attached to the principles of the Constitution of the United States
and well disposed to the good order of the inhabitants thereof, admitted him to be a
citizen of the same. And thereupon the said George Q. Cannon was in due form of
law sworn to support the Constitution of the United States, and absolutely and en-
tii'-iy to renounce and abjure, forever, all allegiance and fidelity to every foreign
prince, potentate, state, and sovereignty whatever, and particularly to Victoria, Queen
of Great Britain and Ireland, whose subject he heretofore has been.

In testimony whereof I have hereunto subscribed my name and affixed the seal of
said court this seventh day of December, one thousand eight hundred and fifty-four
and of the Independence of the United States the seventy-ninth.

[L- S.] ' W. I. APPLEBY, Clerk.

It will be observed that this certificate is in due form, purports to be
issued out of a court of competent jurisdiction, and is duly signed and
sealed. On its face it is a transcript of a record of a courtof competent
jurisdiction; and, if nothing be shown to overcome its efficacy, it must
betaken like all other records of judicial proceedings as absolute verity.
It is attempted to be overcome by the contestee in two ways : First, by
showing that there was in fact no record of such proceedings in the
court out of which it purports to be issued ; and, second, that Mr. Can-
non had not been a resident of any of the States or Territories of the
United States for five years next preceding the date on which it shows
him to have been naturalized. As to the first point (that there was no
record), several witnesses were examined who now have the custody of
records of the court held at that time, and a summary of the testimony
may be given as follows :

A book was presented before the notary public who took the depo
sitions in this case, and was identified as one of the records of the court
of Utah in 1854. It was then the first-district court of the Territory of
Utah. Subsequently it became the third district court. On the fly-leaf
of this book were written the following words : "Records of declarations
of intention to become a citizen of the United States. Also, of citizen-
ship in the supreme and first judicial courts of the United States in and
for the Territory of Utah, Great Salt Lake City. W. I. Appleby, clerk.
September 20, 1851." On the outside of this book was printed in a large
character the letter A. It has always remained in possession of the
proper officers of that court, and is now in the possession of the supreme
court of said Territory as one of its records. Many hundred natural-
ization papers (including that of the contestant, Mr. Cannon) were made
from this book and are now scattered throughout the Territory. It ap-
pears to have been printed in double columns, so that the outer portion
of its page might be separated from its inner portion, leaving the record
on the inner portion or stub. The outer portion was torn off and given
to the person naturalized. This was sealed with the seal of the court.
There was thus left on the stub an exact record of what was done by
the court, and a certificate or transcript was given to the person natur-
alized.

It is objected that this was not signed by the judge, and was there-
fore not a proper record of the court, and that the naturalization papers
thus issued are void. We cannot agree to that proposition. In some of
the States of the Union the signing of the record by a judge is made
mandatory, in others it is made directory only, and in others still it is
not required at all. At common law no judgment-roll was required to
be signed by the presiding judge. Hence it is purely astatutory provision.
We are inclined to the opinion that the law is not mandatory, as applied
H. Mis. 35 39

610 DIGEST OF ELECTION CASES.

to the Territory of Utah, requiring the judge to sign the record. But
however this may be, we are inclined to hold that this was a sufficient
naturalization under the laws of the United States, especially where it
is affirmatively shown by Mr. Cannon that the proceedings in court
were regular in form ; that witnesses were duly sworn who testified to
necessary facts, and that judgment was orally pronounced by the court
from the bench. It is the judgment of the court which makes its ac-
tion efficacious, and not the accuracy with which the clerk writes it
down. (Stephen PI., 138 ; Whitney vs. Townsend. 67 N. Y., 40 ; Kollins
vs. Henry, 78 N. C.. 342; Van Vleit vs. Philips, 5 Iowa, 558; Childs vs.
McChesny, 20 Iowa, 431 ; Jorgenson vs. Griffin, 14 Minn., 464.

Our attention has been called to the decision of Judge Hunter, of Utah
Territory, in a proceeding involving the question here presented. We
have no disposition to comment on this opinion. We deny, howeA r er,
that it goes to the length claimed for it by the contestee. On this point,
therefore, we hold that the certificate is valid and binding, and that Mr.
Cannon, for the purpose of this contest (so far as that point is involved),
is a naturalized citizen.

The other point made, that Mr. Cannon had not been a resident of
any State or Territory of the United States for five years next preced-
ing the date of naturalization, involves quite a novel question. We
hold, however, on this point, that the record cannot be collaterally ques-
tioned, and that therefore it is incompetent to show by evidence in this
proceeding that the certificate is null. (Pruit vs. Cummin gs, 16 Wend.,
616 j State vs. Penny, 10 Ark., 616 ; McCarthy vs. Marsh, 1 Seld., 263 j
In re Colman, 15 Blatchf., 406 ; Spratt vs. Spratt, 4 Pet., 393.

A statement of the facts, however, may not be out of place :

It appears that Mr. Cannon .came to the United States from Great
Britain and settled at Nauvoo, in the State of Illinois, in the year 1842.
He left that town when the colony known as the Mormon colony was
driven out of Illinois by the State authorities. He started with them
across the " desert," and in 1847 arrived at the place now known as Salt
Lake City, in the Territory of Utah. It was then a Territory owned
by the Government of Mexico, which was by treaty, on July 4, 1848,
ceded to the United States. He staid in that locality a short time, hav-
ing bought a town lot and engaged himself to be married to Miss Hoag-
land. He then left for California, where he staid a year engaged in gold-
mining. He then went to the Hawaiian Islands with several other per-
sons, as a missionary for his church. He remained there until Sep-
tember or October, 1854, when he returned to Salt Lake City and mar-
ried Miss Hoagland, and he has ever since resided in that Territory.
On these facts the contestee stoutly claims that the court had no author-
ity to issue the naturalization paper held by Mr. Cannon. But, as we
have already said, it is unnecessary to go into an analysis of those facts,
as w r e hold that the records of the court cannot be attacked collaterally.
It requires a direct proceeding to set aside the record which Mr. Can-
non now has. We therefore hold that Mr. Cannon is a naturalized cit-
izen of the United States, and that he is not disqualified, on the ground
of alienage, from holding his seat as Delegate.

POLYGAMY.

The next inquiry which presents itself is that of polygamy. On the
oral argument of this case before the committee the following admission
(as it appears in the printed Kecord at page 60) was referred to, and
was, as the committee then understood, and now understands, admitted

CANNON VS. CAMPBELL. 611

to have been made by Mr. Cannon in this contest as an admission of
fact for the purpose of saving the time and expense of taking further
proof on that point. It was at least not denied by Mr. Cannon or his
counsel, and this was affirmed by the coutestee in the oral argument.
The admission is as follows :

In the matter of George Q. Cannon. Contest of Allen G. Campbell's right to a seat
in the House of Representatives of the Forty-seventh Congress of the United States
as Delegate from the Territory of Utah.

I, George Q. Cannon, contestant, protesting that the matter in this paper contained
is not relevant to the issue, do admit that I am a member of the Church of Jesus Christ
of Latter-day Saints, commonly called Mormons ; that, in accordance with the tenets
of said church, I have taken plural wives, who now live with me, and have so lived
with me for a number of years and borne me children. I also admit that in my public
addresses as a teacher of my religion in Utah Territory I have defended said tenet of
said church as being in my belief a revelation from God.

GEORGE Q. CANNON.

We are now brought face to face with the question whether this
House will admit to a seat a Delegate who practices and teaches the
doctrine of a plurality of wives, in open violation of the statute of the
United States and contrary to the judgment of the civilized world.
There are several clauses in our Constitution which may have some bear-
ing on this subject.

Section 2, Article I, of the Constitution is as follows :

The House of Representatives shall be composed of members chosen every second
year by the people of the several States, &c.

SECTION 5.

Each House shall be the judge of the elections, returns, and qualifications of its
own members ; and a majority of each shall constitute a quorum to do business. * * *

CLAUSE 2.

Each House may determine the rules of its proceedings, punish its members for dis-
orderly behavior, and, with a concurrence of two- thirds, expel a member.

AKTICLE I, SECTION 1.

Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof, or abridging the freedom of speech or of the press.

ARTICLE IV, SECTION 3, CLAUSE 2.

The Congress shall have power to dispose of and make all needful rules and regula-
tions respecting the territory or other property belonging to the United States.

These are the provisions of the Constitution which may be held to
have some bearing on the question of the qualifications of Delegates.

In the first place, is a Delegate from a Territory a member of the
House of Eepresentati ves within the meaning of the Constitution ? The
second section of the 1st article says : " The House of Representatives
shall be composed of members chosen every second year by the people
of the several States ; and the electors in each State shall have the q^uali-
fications requisite for electors in the most numerous branch in the State
legislature." There is no provision in the Constitution for the election
of Delegates to the House of Representatives or to the Senate. They are
entirely the creature of statute. They are clearly not within the
clause of the Constitution last above quoted, for the House is "composed
of members chosen every second year by the people of the several States;"
and nothing is said of the Territories. Delegates have never been re-

Ci2 DIGEST OF ELECTION CASES.

garded as members in any constitutional sense, because their powers,
duties, and privileges on the floor of the House, when admitted, are lim-
ited. They may speak for their Territories ; they may advocate such
measures as they think proper ; they may introduce bills and serve on
committees ; but they are deprived of the right to vote. And we doubt
whether Congress could clothe them with the right to vote on measures
affecting the people of the States or of the Territories, because they do
not represent any integral part of the nation, but simply an unorganized
territory belonging to the whole people. Hence Delegates are creatures
of statute, and it would be competent at any time for the legislative
branch of the Government to abolish the office altogether.

The writer of this report goes further than that. He holds that it is
incompetent for Congress and the Executive to impose on any future
House the right of Delegates to seats with defined qualifications. That is
to say, when the several laws were passed giving the Territories the right
to this limited representation, those laws were binding only on the lower
House, which permitted them to be or made it possible for them to be
passed, and were persuasive only to the Houses of future Congresses. For
some purposes each House of Congress is a separate, independent branch
of the Government. It is made so by the Constitution. For example,
each house is the judge of the elections and returns of its own members,
and neither the Executive nor the Senate can interfere with that consti-
tutional prerogative. Each House is independent in its expenditure of
its contingent fund, and in the government of its own officers. It is in-
dependent in the formation of its own committees, in clothing them with
power to take evidence, to send for persons and papers, and to investigate
such matters as are within its jurisdiction. Each House is independent
in its power to arrest and to imprison, during the session of the body,
such contumacious witnesses as refuse to abide its order. In many
other instances that may be cited each House acts independently of
the other. And with reference to the election of Delegates, who (if they
hold any office or franchise at all) can be nothing but agents represent-
ing the property and common territory of all the people, it operates
only on the lower branch of Congress, for their election extends no
right to them to interfere with the business of the Senate or to act as
members thereof. This must not be construed into an opinion that the
writer holds that the House of Representatives may disregard any law
which Congress has the constitutional power to pass. Such laws are
as binding upon this House as upon any citizen or court. Nor does the
writer of this report mean to be understood that it is not competent for
Congress to provide, under the Constitution, for legislative representa-
tion for Territories, but it is denied that Congress can bind the House
by any law respecting the qualification of a Delegate. It cannot affix a
qualification by Jaw for a Delegate and bind any House except the one
assenting thereto. The qualification of members is fixed by the Consti-
tution. Hence they may not be added to or taken from by law. But
as to Delegates, they are not constitutional officers. Their qualification
depends entirely upon such a standard as the body to which they are
attached may make. It is urged this means a legal qualification. This
is admitted ; but that legal qualification is remitted to the body to which
the Delegate is attached, because it is the sole judge of that requisite.
It is unfettered by constitutional restrictions and cannot yield any part
of this prerogative to the other branch of Congress or the Executive.
If it could, the right to amend would follow, and the House might find
itself in the awkward position of having the Senate fixing qualifications
to Delegates, or the Executive vetoing laws fixing them, and by this

CANNON VS. CAMPBELL. 613

means the power which by the Constitution resides alone in the House
would be entirely abrogated.

It is claimed this is an autocratic power. This is admitted. All leg-
islative bodies are autocratic in their powers unless restricted by writ-
ten constitutions. In this instance there is no restriction.

It is contended that the actof Congress extending the Constitution and
laws of the United States over the Territory of Utah, in all cases where
they are applicable, extends the constitutional privilege to Delegates and
clothes them with membership as constitutional officers of the House.
We cannot assent to that view. The very language of the act itself only
extends the Constitution and laws over the Territory iu cases where they
are applicable. They cannot be applicable to the election of a Delegate ;
for if they were, then Congress would have no authority to deprive a
Delegate of the right to vote. To contend that the applicability of the
Constitution in that respect extends to Delegates proves too much. It
is clear, therefore, that that clause of the Constitution relative to the
expulsion of a member by a two-thirds vote cannot apply to Delegates,
because they hold no constitutional office. It is equally clear that the
clause of the Constitution relative to elections, returns, and qualifica-
tions of members has no applicability except by parity of reasoning ; and
we do not dissent from the view that, so far as the qualification of citi-
zenship and other necessary qualifications (except as to age) are con-
cerned, they extend to Delegates as well as to members. (Sec. 1906,
K. S. U. S.) This is made so, probably, by the statute, expressly so
to all the Territories except to Utah Territory, and mferentially to that
Territory. It follows, as a logical sequence, that the House may at any
time, by a majority vote, exclude from the limited membership which it
now extends to Delegates from Territories any person whom it may
judge to be unfit for any reason to hold a seat as a Delegate.

It cannot be said that polygamy can be protected under that clause
of the Constitution protecting every one in the worship of God accord-
ing to the dictates of his own conscience, and prohibiting the passage
of laws preventing the free exercise thereof.

It is true that vagaries may be indulged by persons under this clause
of the Constitution Avheii they do not violate law or outrage the consid-
erate judgment of the civilized world. But when such vagaries trench
upon good morals, and debauch or threaten to debauch public morals,
such practice should be prohibited by law like any other evil not prac-
ticed as a matter of pretended conscience.

The views which we have just expressed render it unnecessary for us
to discuss further the various propositions involved. In the face of this
admission of Mr. Cannon we feel compelled to say that a representative
from that Territory should be free from the taint and obloquy of plural
wives. Having admitted that he practices, teaches and advises others
to the commission ot that offense, we feel it our duty to say to the peo-
ple of that Territory that we will exclude such persons from represent-
ing them in this House. In saying this we desire to cast no imputation
on the contestant personally, because in his deportment and conduct in
all other respects he is certainly the equal of any other person on this
floor.

This leaves one other question for decision, namely : Is Mr. Campbell
entitled to the seat, having received only a minority of the votes cast I
We are aware that in England authorities are found for the position
that votes cast for ineligible persons are simply void, and that those
cast for a person qualified feen though in the minority) are effectual,
and that thereby the candidate against whom the majority of voters

614 DIGEST OF ELECTION CASES.

declared may receive the office. In a few of the States of the Union
this principle applies, but the great weight of American authority is to
the contrary, and we do not hesitate to say that the better doctrine is
that a minority of legal votes does not elect. We therefore say that
Mr. Campbell, not having received the majority of the votes cast, is not
entitled to the seat.

Resolved, That Allen G. Campbell is not entitled to a seat in this Con-
gress as a Delegate from the Territory of Utah.

Resolved, That George Q. Cannon is not entitled to a seat in this Con-
gress as a Delegate from the Territory of Utah.

Resolved, That the seat of Delegate from the Territory of Utah be,
and the same hereby is, declared vacant.

VIEWS OF ME. W. G. THOMPSON.
In the matter of contest in case of Cannon vs. Campbell, Utah Territory.

The undersigned, as a member of the Committee on Privileges and
Elections, to whom was referred the matter of contest in the above-en-
titled cause, not being able to agree fully with the majority of said com-
mittee who report herein, begs leave to briefly state the reasons for such
disagreement, and while I cheerfully concur in the final conclusion of
the majority of the committee, and shall vote with them in sustaining
the resolution that Mr. Cannon is not entitled to a seat as a Delegate. I
do so not merely because it is clearly proven by the evidence, as well
as by his admissions in writing, that he practices, teaches and advises
other deluded men and women that plurality of wives, in the face of the
laws of Congress prohibiting it, is right, because an alleged revelation,
through Brigham Young, so declared it, and that such pretended reve-
lation was to be observed before the laws of the land, thereby affording
a pretext for the commission of a felony, and under the guise of religion
demand immunity from punishment, and with brazen effrontery defy
the laws of the land, which all others are bound to obey, and for a
breach of which the penalties provided are speedily enforced against
them.

The days of inspiration have passed, and murder or other crimes can-
not be justified because a claim that some new revelation has been
communicated to them by virtue of which the laws of the country can
be defied. And while it is a matter of but little moment to the country
at large what the peculiar belief of Mr. Cannon may be, still it does be-
come a matter of grave importance when he presents himself as the
representative of a great crime, not only a moral crime but a legal
crime, denounced as such by the civilized world, and so declared by the
highest tribunals of justice in the land, and boldly demands that he
shall be recognized as such, and we cannot comply with such demand
without making that crime our own ; but I am constrained to deny Mr.
Cannon a seat as a Delegate for the further reason that he has failed to
make a contest for it.

True it is that on the 20th day of January, 1881, he served a notice of
contest on Mr. Campbell in due form, and it is also true that Mr. Camp-
bell, on the 26th day of February, 1881, filed his answer to that notice,
putting in issue every material allegation set forth in the notice of con-
test, and especially the allegation that Mr. Cannon had received or was

CANNON VS. CAMPBELL. 615

elected by a majority of the votes legally cast at the election held on the
2d day of November, 1880, and also charging that Mr. Cannon was not
at the time of the election a citizen of the United States, thus putting
in issue every right upon which Mr. Cannon based his claim to a certifi-
cate of election and these being properly in issue, it becomes incumbent
upon him to establish by proper and legal testing the truth of all his
material allegations. 1 now ask, how did he do this ? I answer, he did
not do so. I further say that he never attempted to do so, and when I
so declare I do not hedge such declaration with any mere technicality
or subterfuge, to avoid meeting the very right of the contestant, but so
maintain it upon the broadest principles of well-established rules of
practice adopted and enforced by all the courts in the land. But I am
answered by the majority that Mr. Cannon has produced as evidence a
tabulated or what purports to be a tabulated statement of the votes cast
at the election of November 2, 1880, by which it appears that Mr. Can-
non had a large majority of all the votes cast, and that such statement is
certified to by the secretary of the Territory under his seal of office, and
therefore it must be received as evidence. It will be conceded, I think,
by all that the committee can consider only legal evidence, such evi-
dence as the laws of Congress prescribe, and that they cannot consider
any other. The question is, is this such evidence as the committee
can consider for any purpose whatever ? I say it is not, and cannot be
made so.

Section 108, Eevised Statutes of the United States, 1873, provides
" that the party desiring to take depositions under the provisions of
this chapter shall give notice to the opposite party in writing of the
time and place, ichen and icliere, the same will be taken, of the name of
the officer before whom it will be taken, and the name of the witness to
be examined, and such notice shall be personally served," &c. These
are the plain, unequivocal requirements of the statute, and the wildest
latitudiuarian will not dare to say that these are merely directory and
may be disregarded at the will and pleasure of a contestant or a com-
mittee. Each and all of these provisions are mandatory, and while we,
as a committee, may have some discretion, some latitude, in the exami-
nation of facts, so that even-handed justice may be done, we have none
in the matter of law ; we are bound by that as we find it, and we have
no right to go outside of its plain requirements, and when we do so we
act in contravention of law, without authority, and our acts, unauthorized,
must be null and void. When did Mr. Cannon give such notice f How
and when did contestee have notice that such evidence would be taken
or used for any purpose ?

Every member of the committee knows that contestant does not even
claim that he attempted to do so ; but, on the contrary, it does clearly
appear from the evidence that Mr. Cannon procured this statement
without the knowledge of the coutestee, and not for the purpose of being
used as evidence before the committee, but only for the purpose of being
used as evidence before the then Clerk of this House, so as to have his
name entered upon the roll of Delegates. And, strange as it may strike
every fair and candid mind, the Clerk assumed, in the absence of Con-
gress, to perform its functions; and did, upon this evidence alone, and
in the absence of the certificate required by law, judicially determine
that Mr. Cannon was duly elected, and placed his name upon the rolls ;
all this in open violation of law, and stands without a precedent. That
evidence, then, had expended its force. It was not even among the
papers referred by the House to the committee, and never found its
way into the hands of the committee until the Gth day of February,

616 DIGEST OF ELECTION CASES.

1882, six weeks after the committee Lad been organized, when it again
appeared as evidence on the part of the contestant, and when it had
been suggested that no evidence had been taken and the contest was
abandoned.

The contestee had a right to the notice required by law; he had a
right to be present and cross examine the witness ; he had a right to
show that this statement was not the best evidence, and demand that
investigation be made into the legality of every ballot cast, as well as
the qualifications of each elector, and especially so when we find in evi-
dence this strange law upon the statute books of Utah, then and now in
force (act of February 12, 1870, section 43, chapter 2) : "That every woman
of the age of twenty-one years who has resided in the Territory six
months next preceding any general election, born or naturalized in the
United States, or icho is a wife or daughter of a native-born or natural-
ized citizen of the United States, shall be entitled to vote at any election
in this Territory."

The same law provides that all voters in the Territory shall be required
to be registered prior to the election, and the registration list is in the
hands of the election officers, and each voter has his or her name marked
" voted" on such list; and that list is based on the affidavit of each
voter, and shows both the qualification and the sex of the voter. This
statement is not evidence of the legality of a single vote. It is not evi-
dence of the qualification of any elector in the Territory, and these facts
can only be ascertained by the examination of the register-lists, the bal-
lots, and the electors. The contestee has been denied these rights, each
and every one of them. He had a right to rest upon his statutory rights
and make no move until he was notified that evidence would be taken.
He held the certificate of election then ; he holds it now. That certifi-
cate contains all the statute requires; it is under the hand of the only
officer authorized to give it, and has attached thereto the broad seal of
the Territory. It stands to-day uncontested ; and no excused is given
why it is uncontested ; and the answer of contestee gives denial to all
this, and declares that no statute, Federal or Territorial, required or
authorized the governor of the Territory to open or inspect these returns
as the whole or any part of the evidence on which he was required to
determine the result of said election ; and this state of the law has been
judicially declared in the Territory ; and while the committee may not be
held to take notice of court decisions, they are bound to know the law
as it exists, and to follow the interpretation given by the courts having
proper jurisdiction of the subject-matter when attention is called to
them.

I am brought to the conclusion that contestant, after he had com-
menced this contest, by the aid of a clerk, acting without law or au-
thority, and in flagrant violation of both, got his name upon the rolls,
considering himself safe, and had, as he supposed, placed the laboring
oars in the hands of Campbell, and made him contestant, abandoned
the contest, and never attempted to take a word of evidence to show
him entitled to a seat, and stands in that attitude now, and ought to
remain there. And it behooves us to scan carefully the allegation of
Mr. Cannon that he received a majority of the legal votes cast, and
more especially so when we are confronted with Territorial statute already
quoted, by which the bold attempt is made to enlarge the naturalization
laws and confer citizenship upon persons by other means and methods
than those prescribed by Congress, whose province alone it is to make
such laws ; and such attempt is a most unwarranted assumption of
power ; and when men or women, by virtue of such a law, exercise the

CANNON VS. CAMPBELL. (j!7

right of suffrage, and foist upon the law-abiding people a representa-
tive hostile to the laws of Congress, and inimical to the well-being of
our Government, and at open war with civilization itself, can we, dare we,
say to the one holding the proper credentials, and who met the contest
in the manner pointed out by law, and invited open, full, and fair inves-
tigation, that he by any trick or device shall be denied the right of show-
ing in evidence these wrongs?

But admit (which I do not) that the tabulated statement has been
properly admitted in evidence, and that the legal presumption is that
the facts stated are correct, such presumption is met and overcome by
the certificate of election held by contestee, still leaving the burden of
proof on the contestant to show by proper evidence that such certifi-
cate was fraudulently obtained, and confers no right upon the holder.
This contestant had not attempted, but, relying upon the fact that his
name appears on the roll as a Delegate, rested his case; and when it is
admitted, as all must admit, that it obtained that place wrongfully and
without even the color of law, the certificate stands unimpeached, and
entitles Mr. Campbell prima facie to a seat ; and I know of no statute,
law, or any revelation, ancient or modern, which gives the contestant
in this case superior rights to any other contestant for a seat, or that
would place him above the law and its plain requirements.

Again, it is alleged that contestant was not at the time of his alleged
election a citizen of the United States, and in proof that he was, and to
meet the evidence on this point introduced by contestee, he presents
what purports to be a certificate of naturalization issued December 7,
1854, by the clerk of the court having competent jurisdiction to grant
such naturalization, but fails to produce any record that such applica-
tion was made in court, and, indeed, it is not claimed that any such
record was ever made or entered in the records of the court, but only
an entry of the clerk in his own book that such certificate was issued,
not that any such proceedings were had in court. I am answered on
this point that the witnesses produced at the time have again been ex-
amined, and swear that the proceedings were in the court and before
the judge. While this is true, it is also true, as will be seen by the ev-
idence, that one of the witnesses swore that the proceedings were before
a judge who in fact was never in the Territory until years after the
date of the certificate. The witness afterwards endeavored to correct
this, when his attention was called to the blunder, and shows only how-
unreliable evidence of a record is when carried for twenty-seven years in
a human head, instead of being in the place the law directs.

I admit the rule of law allowing secondary evidence when the original
is lost or destroyed, but I do deny that any rule of law was so broadened
as to allow an original record to be made twenty-seven years after it
should have been entered, or to be made at all by an unauthorized per-
son. In this case there is no pretense that such a record was ever made
or entered in the court proceedings of that day, although it is proven
that said court was in session at the time and the record of its pro-
ceedings for all that term properly entered, but the naturalization of
contestant forms no part of it.

Again, the law allows the naturalization of a person coming to this
country who was under eighteen years of age at the time of his arrival,
but when he applies for naturalization he must show by proper evi-
dence that he had been a resident of the United States for three years
next preceding his application. I take it that this law does not con-
template a constructive residence, but an actual residence.

The evidence clearly shows, nor is it denied by contestant, that he,

618 DIGEST OF ELECTION CASES.

with other Mormons, when driven from Xauvoo, in Illinois, shook the dust
of American soil from off their feet, and in the year 1847 sought refuge
in a foreign Government and settled under the protection of the Mexi-
can flag and Mexican laws, and for a time became subjects of that
Government ; but the fortunes of war soon afterwards gave that terri-
tory to the United States, and by treaty, ratified in 1848, was ceded to
the United States by Mexico. Contestant in 1849 left this country and
became a resident of the Sandwich Islands, and so remained a resident
until 1854, when he, as the evidence shows, returned to Salt Lake City,
in the Territory of Ulfcah, on the 28th day of November, 1854, and on the
7th day of December, 1854, ten days after his arrival, was naturalized,
as his certificate purports, not by a proceeding in court, but by a pro-
ceeding before a clerk ; and when these acts, so persistently done and
continued from time to time, indicating a determination to cut loose
from all allegiance to this Government, gives emphasis to the evidence
adduced tending to show that his pretended certificate of naturalization
was and is fraudulent and void ; and that not having resided in the
United States three years next preceding his application to become a
citizen, the court was without jurisdiction, and even if he had appeared
in open court, and in all respects complied with the requirements of the
statute, his naturalization under such circumstances would have been
illegal and void.

My conclusions are that G. Q. Cannon is not entitled to a seat in
Congress as a Delegate from the Territory of Utah, but that Allen G.
Campbell is entitled to such seat, and report for adoption the following
resolutions :

Resolved, That G. Q. Cannon is not entitled to a seat in the Forty-
seventh Congress of the United States as a Delegate from the Territory
of Utah.

Resolved, That Allen G. Campbell is entitled to a seat in the Forty-
seventh Congress of the United States as a Delegate from the Territorv
of Utah.

WM. G. THOMPSON.

VIEWS OF MB. PETTIBONE.

This case is emphatically sui generis. It stands alone among con-
tested election cases. Giving to it the best thought of which I have
been capable, I give my conclusions as briefly as possible.

Presuming that for George Q. Cannon and Allen G. Campbell, as in-
dividuals, the committee have no fear, favor, prejudice, or affection, it is
apparent that the case hinges on a few questions which may be tersely
stated :

Tlie prima facie case.

I. As to whether the certificate of Mr. Campbell entitles him prima
facie to a seat. Despite all that has been or may be said, it appears to
me that this certificate standing alone, and just as it reads, is plainly
sufficient ; and that the words u being a citizen of the United States
over the age of twenty-one years," which are regarded as vitiating it,
might and should be regarded as mere surplusage, if we were alone
considering ilieprima facie case, and without regard to the very right
involved in the contest.

II. But the certificate does not stand alone. We cannot shut our

CANNON VS. CAMPBELL. 619

eyes to the fact that long before this certificate was issued, under date
of the 8th day of January, 1881, the contestee, Mr. Campbell, filed a
protest, under date of December 12, 1880, with the governor, Eli H.
Murray, protesting against his counting any votes for the contestant,
George Q. Cannon ; and that the governor, in rendering his decision
upon this protest, unequivocally states that " the returns showed that
at the election George Q. Cannon received 18,568 votes and Allen G.
Campbell received 1,357 votes." This we find on the first page of the
testimony and papers in the case.

And we also know from the governor's words that he gave the certi-
ficate to Mr. Campbell, because, quoting his exact language, " it having
been shown that Mr. Cannon is not a citizen, and that he is incapable
of becoming a citizen, I cannot under the law certify that he is duly
elected, and that Mr. Campbell having received the greatest number of
votes cast for any citizen was therefore duly elected and must receive
the certificate accordingly." (Record, page 18.)

If the English doctrine as it has been applied and enforced in the
British Parliament prevailed in the American Congress, viz, " that
where the majority candidate is ineligible, and suificient notice of his
iueligibility has been given, the person receiving the next highest num-
ber of votes, being eligible, must be declared elected, the governor's po-
sition would be unassailable, provided it is true that Mr. Cannon never
was naturalized and sufficient notice of the fact had been given.

But the English rule does not prevail in America. In the case of
Smith vs. Brown, 2 Bartlett, 395, in the report submitted by Mr. Dawes,
then chairman of the Committee on Elections, it is declared

That the law of the British Parliament in this particular has never been adopted
in this country, and is wholly inapplicable to the system of government under which
we live.

And Judge McCrary, in his work on contested elections, in words as
perspicuous as they are terse, sums up the matter thus :

It is a fundamental idea with us that the majority shall rule, and that a majority or
at least a plurality shall be required to elect a person to office by popular vote.

An election with us is the deliberate choice of a majority or plurality of the electors.
Any doctrine which opens the way for minority rule ta any case is anti-republican and
anti-American. (McCrary, 234*.)

Authorities might be multiplied, but they are unnecesary and super-
fluous.

But it is contended that there is no testimony before the committee
showing that Mr. Cannon received a majority of the votes cast at the
election.

I agree that the governor's statement outside his certificate to Mr.
Campbell would not alone show that Mr. Cannon received a vast majority
of the votes cast. I quite agree with the affirmation that a good judg-
ment is not rendered invalid because the judge may offer unsound rea-
sons for having rendered it.

But this leads to the question whether or not there is testimony given
in evidence by Mr. Cannon in support of his claim to have received the
great majority of the votes cast at the election. I mean legal votes, of
course.

And right here it is well to consider the law by which the returns of
which Governor Murray speaks came to his hands.

By 22 of the compiled laws of Utah it is provided

At the close of the election the judge shall seal up the ballot-bux and the list of the
names of the electors and transmit the same without delay to the county clerk.

620 DIGEST OF ELECTION CASES.

And 22 provides

Immediately upon receiving the electoral returns of any precinct the county clerk
and probate judge, or, in his absence, one of the selectmen, shall unseal the list and
ballot-box, and count and compare the rotes with the names on the list, and make a
brief abstract of the offices and names voted for and the number of votes each person
received ; the ballot-box shall then be returned and the votes aud list preserved for
reference in case the election of any person shall be contested.

Section 24 enacts

When all the returns and abstracts are made, the clerk shall forthwith make a gen-
eral abstract and post it up in his office, and forward to the secretary of the Territory
a certified copy of the names of the persons voted for, and the number of votes each has
received for Territorial offices, and furnish each person having the highest number of
votes for county and precinct offices a certificate of his election.

And by section 25 it is enacted

So soon as all the returns are received the secretary, in the presence of the governor,
shall unseal and examine them, and furnish to each person having the highest number
of votes for any Teri'itorial office a certificate of his election.

Under the provisions of these above-quoted sections the election for
Delegate was held in Utah, yet held on a day distinct and set apart from
any other election than that of a Delegate, that is, on November 2,
1880.

An analysis shows that the votes and list, sealed up, are in each county
conveyed to the office of the county clerk, and by him and the probate
judge, or a selectman, counted and compared, and a brief abstract is
made of the result. When all the returns and abstracts from the various
polls are made, a general abstract of the entire vote of the county is
forthwith made and posted up in the clerk's office, and a certified copy
is sent to the secretary of the Territory. When he has thus received
these returns in abstract from each county they are opened and examined
in the presence of the governor. The various lists of voters and votes
of the different precincts are deposited with the county clerks of the re-
spective counties, but the consolidated abstract of the vote of each
county is, and this alone, forwarded to the secretary.

Now, it was these abstracts of the votes of each county called " re-
turns" which were opened and examined in the governor's presence.
It is not pretended he ever saw any other. These abstracts, made in
strict conformity to statutory law, were the " returns " on which Gov-
ernor Murray gave to Mr. Campbell his certificate, as we find it at the
bottom of page 19 of the record evidence.

It is the certified " summary" of these returns which constitute what
is called Mr. Cannon's credentials on page 20 of the record.

And it conclusively appears from the notice of contest that Mr. Can-
non professed to furnish with his notice copies of every one of these
" returns," marked, respectively, A, B, C, D, &c., down to Exhibit V.
And Mr. Campbell solemnly admits, in his answer to the notice of con-
test, that he received them. His language is :

I admit that returns of the election of Delegate to the Forty-seventh Congress held
on the 2d day of November, 1880, in the several counties of the Territory of Utah, were
made to the secretary of said Territory, of ichich copies are annexed to your notice and
referred to therein as marked respectively A, B, C, D, &c.

Mr. Campbell solemnly admitted that he received a copy of each
county return at the very beginning of the contest. He admits these
copies are just what is printed in the testimony, viz, Exhibits A, B, C,
D, &c., to Mr. Cannon's notice of contest.

That record evidence is admissible he does not deny, but insists that
these admitted copies of the county returns cannot be looked to, because

CANNON VS. CAMPBELL. 621

they were too speedily thrust into his hands. And we are cited to sec-
tion 362 of Judge MoOrary's Law of Elections. McCrary employs this
language :

The question may be raised whether evidence of this character can be offered for the
first time on trial.

And in answer to this question he adds :

It may be said that it should be produced before an officer taking testimony, in the
presence of the opposite party, and put in evidence within the time required for com-
pleting the taking of testimony in the case.

And, he adds, this is undoubtedly the correct practice.

But why is it the correct practice ; what is the reason ? Judge Mc-
Crary answers this : "For if evidence of this character is to be used it
is but fair that the party against whom it was offered should have notice
of it in time to offer evidence in response to it."

And here is the meat of the whole matter. For even if this dictum
of Judge McCrary -were statute law, as it is not, yet since the object of
the rule, if it be a rule of law, is that the opposite party may have notice,
the case seems to furnish the strongest possible example of the rule that
" the reason of the law utterly failing the law itself fails." And Judge
McCrary, on this very topic, in section 353, says : " The House of Kepre-
sentatives has shown a disposition to give a liberal construction to the
acts of Congress in relation to the mode of conducting contested elec-
tions. They are constructed with reference more to the substantial
rights of the parties than to the exact wording of the statute." It is evi-
dent that contestee relies on the exact wording of the statute alone when
he urges that contestant has no evidence before us.

It is not pretended that these copies are false copies. It is not pre-
tended that the contestee did not expect them to be before us, for they
were attached to and made exhibits to the notice of contest which was
duly served upon him and which he knew we would have here. He
cannot deny that he had notice of these exhibits, for he refers to them,
admits their reception, but denies their effect to be as claimed by con-
testant in the answer which he, the contestee, prepared, signed, and
filed.

I conclude, therefore, that there is testimony before the committee that
Mr. Cannon received a majority of the votes cast at the election, and
none that he did not. Whether Mr. Cannon is eligible or not, I must
decide against the claim of Mr. Campbell, both on \UB prima facie case
and on the merits of his claim to a seat as the duly elected Delegate from
Utah.

III. This brings us to the question of Mr. Cannon's eligibility.

And, first, is he a naturalized citizen!

It is needless to sum up here the authorities bearing on this question.
Suffice it to say that going over all the cases cited on either side, and
hunting the books which treat of the. subject of naturalization, I am con-
strained to say that Mr. Cannon's claim to have been naturalized seems
to me res adjudicata.

Whether a Mormon, in view of what it is notorious his church teaches
and claims and practices, can be " attached to the principles of the Con-
stitution of the United States, and well disposed to the good order of its
inhabitants " or not however this may be, cannot affect Mr. Cannon's
citizenship to-day and now, when once it is conceded that he was nat-
uralized, as his certificate shows, in 1854.

And now the question remains, since it is evident that at the election
JVlr. Cannon received a vast majority of the votes cast, and, though claim-

622 DIGEST OF ELECTION CASES.

ing that thousands of illegal votes were thrown for him, the contestee
still does not claim that throwing them out would leave a majority for
the contestee, why is Mr. Cannon not entitled to his seat; or, in other
words, why should he not be welcomed to his seat as the Territorial
Delegate from Utah as he has been heretofore? For it must be con-
ceded that he has the qualifications which Article II of the Constitu-
tion prescribes as the only ones which are necessary in the case of a
Eepresentative in Congress ; that is, age, citizenship, and inhabitancy.
He is over 25 years of age ; he is a naturalized citizen, and he has for a
score of years and more been an inhabitant of Utah. Judge Story, in
his concise but luminous comment on this article of the Constitution,
says :

It would seem but fair reasoning, upon the plainest principles of interpretation, that
when the Constitution established certain qualifications as necessary for office, it
meant to exclude all others as prerequisites. From the very nature of such a provis-
ion the affirmation of these qualifications (i.e., proper age, citizenship, aud inhabitancy)
ivould seem to imply a negative to all others. (Story on the Constitution, section 624.)

And this is but applying to this clause of the Constitution the maxim
of interpretation expressio unius est exclusio alterius. The express men-
tion of one thing implies the exclusion of another.

If, then, a Delegate from a Territory stands on the same footing as a
member of Congress, Mr. Cannon must be admitted to his seat. But
the Delegate does not. He is in no just sense a member of the House.

" The House of Representatives shall be composed of members chosen
every second year by the people of the several States." (United States
Constitution.)

He is, in the language of section 13 of the organic act of Utah Terri-
tory, u a Delegate to the House of Representatives of the United States. 77

We have only to consider the history and unbroken practice of legis-
lation for the Territories since the formation of the Government to see
the Utah case in its true light.

Commenting on the provision of the Constitution, that " Congress
shall have power to dispose of and make all useful rules and regulations
respecting the Territory or other property of the United States," Judge
Marshall, in the American Insurance Company vs. Conter, 1 Peters,
511, declares : " In legislation for the Territories Congress exercises the
combined powers of the general and of a State government."

And Judge Cooley, in his "Principles of Constitutional Law," uses
these words:

The people of the Territory, except as Congress shall provide therefor, are not of right
entitled to participate in political authority until the Territory becomes a State.

Is it, then, insisted that their Delegate who has a seat and a right to
debate only, but is debarred from any exercise of law-making power,
who, in the case of Utah, need be but twenty-one years of age, while a
member must be twenty-Jive can of right demand that he shall stand on
the same constitutional footing as a Member, and that Congress may
not inquire as to his fitness to be a Delegate, except to ascertain if he
has received a majority of the votes cast, is twenty-one years of age, is
naturalized, and an inhabitant of Utah ? This, I understand, is the con-
testant's position and claim.

Why cannot Congress inquire as to a member's qualifications further
than to ascertain if he be past twenty-five years of age, a citizen of the
United States for seven years, and an inhabitant of the State from
whence he comes? Because the Constitution lays these down as the
sole positive qualifications, and the expression of the one thing is the
exclusion of the other. But no such restriction is laid on the power of

CAXNON VS. CAMPBELL. 623

Congress over the Delegate. The Constitution never contemplated the
presence on the floor of the House, as an integral part of the House, of a
Delegate from a Territory. For one, I do not believe that the clause of
the Constitution, "each House shall be the judge of the elections, re-
turns, and qualifications of its own members," has anything to do with
a contested election of a Delegate from a Territory, except so far as
analogies of practice go. But these analogies do not, and cannot, have
the force of law. They cannot confer on the Delegate the privileges or
the immunities which the Eepresentative has conferred on him by the
Constitution. In judging whether Mr. George Q. Cannon is entitled to
a seat we are not judging of the election or qualification of a member,
for he is not a member-elect.

It may seem trivial to discuss this, but it seems to me the vital point
in the case.

The Delegate from a Territory is here ex gratia, by the grace and favor
of Congress to the people of the Territory, that they may have an agent
at the seat of sovereign power to look after and advocate their interests,
but as a mere advocate, not as a member of the court.

The Congress shall have power to dispose of and make all needful rules and regula-
tions respecting the Territory or other property of the United States.

And the Delegate from a Territory is not in any sense a member of Con-
gress, he is not a Representative in Congress, he is a creation of Con-
gress.

Xow, as we all well know, Congress, by the act of July 1, 1862, carried
into the Revised Statutes in 5352, solemnly enacted that

Every person having a husband or wife living who marries another, whether mar-
ried or single, in a Territory or other place over which the United States has exclu-
sive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than
$500 and imprisoned for a term not more than five years. .

While it cannot be truthfully said that this law is in force in Utah it
is in force in every other Territory, and has never been repealed.
Contestant George Q. Cannon says :

I do admit that (in accordance with the tenets of his church) I have taken plural
wives, who -woiclive with me and have so lived with me for a number of years and
borne me children. (Record, page 6U.)

And this undoubted, solemnly self-admitted bigamist, this despiser
and contemner of the laws of Congress, to-day and now demands a seat on
the floor of the House of Representatives, and demands to be paid $5,000
per year for occupying such seat, by the Government whose laws he
tramples under foot and teaches others to do the same, as he frankly
admits. For one, I cannot support the Constitution, and yet supinely
sanction the utter defiance and abrogation of a law of Congress declared
to be constitutional. (Reynolds vs. United States, 8 Otto, 145.)

Every legislative body must, in the nature of things, have the power
to preserve its own order, decorum, and dignity.

This demand on the part of Mr. Cannon, one who makes no dissimu-
lation, but who admits in the face of the world that he lives in open
violation of the laws of Congress, to a seat on the floor of the House is
an insult to the dignity of the House. He is unworthy of a seat. By
my vote he shall never be welcomed to a seat in the House.

This case should be sent back to the people of Utah with a stern ad-
monition that no person shall ever be seated as a Delegate in this House
who violates the law and offends as George Q. Cannon has offended, and
still does offend, by his own solemn confession.

One more observation and I am done.

624 DIGEST OF ELECTION CASES.

It is with us a fundamental idea that the majority shall rule. This
idea everywhere prevails in practice, unless it is in rare instances curbed
by constitutional inhibition.

In section 5 of Article I of the Constitution, in clause 2, it is declared
that "each House may determine the rules of its proceedings (and) pun-
ish its members for disorderly conduct." So far there is no doubt or
question that the majority principle is applicable as applied to this
clause. It ever has been and still is so construed. But the concluding
words are, " and, with the concurrence of two-thirds, expel a member."

Here is a strong restraint laid on the majority principle. It was im-
ported into the text of the Constitution, we know, on the motion of Mr.
Madison. But an excepting clause in any legal instrument is strictly
confined to the excepted matter, and this is but another way of saying
the express affirmation of one thing is an exclusion of another. This is
sound law and sound sense. The exception to the doctrine, everywhere
universal among us, is that a member of Congress, a necessary part of
the organic whole, shall not be expelled without the concurrence of two-
thirds of all the members. But this exception, by the very words of
the Constitution, applies only to members to Eepresentatives from the
States. It is against every principle of sound construction to apply it
to the creature of Congress ; to throw it over him as a protecting segis
to save him from just responsibility for violating the laws of Congress
when it was designed for, and by its very words is confined to, the case
of the member of Congress.

I have said this is a novel case. The nearest approach to it, and it is
vastly weaker, that I have been able to find is that of Jeremiah Learned,
in the Massachusetts house of representatives in 1875. Because he had
been indicted for seditiously and riotously opposing the collection of
public J;axes, by resolution his right to hold a seat was suspended.
Pending his trial upon that indictment the dignity of that house would
not permit his presence, and yet he was a member-elect and not a delegate
to it from an outside constituency.

My voice and vote, then, is for a resolution denying to George Q.
Cannon a seat as a Delegate from Utah, because it is in gross violation
of the dignity of the House, and would be an insult to the sovereignty of
the nation to admit a self-admitted criminal violator of the laws of Con-
gress to a seat in the body whereof we are members.

VIEWS OF MR. MILLER.

I submit the following as governing and controlling my action as a
member of the Committee on Elections, relative to the pending contest
of Cannon vs. Campbell for the right to represent the Territory of Utah
in the Forty-seventh Congress. At the outstart I concede that George
Q. Cannon was, at the date of the election in November, 1880, a natu-
ralized citizen of the United States. The certificate of naturalization
exhibited by him is in due form, purports to be issued by a court of
competent jurisdiction, and is signed and sealed by the court issuing it.
The adjudication of this question has never been opened or reversed by
any judicial tribunal having constitutional and legal authority to open
and reverse it.

I concede, further, that it conclusively appears in evidence that George
Q. Cannon, who was a candidate for election as Delegate to the Forty-
seventh Congress for the Territory of Utah, did, at the November elec-

CANNON VS. CAMPBELL. 625

tion iu 1880, receive a majority of all the votes cast in said Territory,
and that he was duly and legally elected a Delegate and entitled to a
seat in said Congress, unless he is disqualified from holding a seat for
some cause cognizable by Congress.

Section 5, Article I of the Constitution of the United States is as
follows :

Each House shall be the judge of the elections, returns, and Qualifications of it
own members. * * *

The sole question for consideration, to my mind, is presented by the
inquiry :

Is George Q. Cannon for any reason disqualified to sit as a Delegate
in Congress to represent the Territory of Utah, and is that disqualifica-
tion of such a character as to justify Congress in refusing him a seat in
the House under ths provisions of the Constitution ?

The evidence discloses the fact that George Q. Cannon is a polygamist,
and that he not only believes in but practices the doctrines, tenets, and
mandates of Mormonism. On page 60 of the evidence in this case is
the following admission :

I, George Q. Cannon, contestant, protesting that the matter in this paper contained
is not relevant to the issue, do admit that I am a member of the Church of Jesus Christ
of Latter-day Saints, commonly called Mormons ; that, in accordance with the tenets
of said church. I have taken plural wives, who now live with me, and have so lived
with me for a number of years and borne me children. I also admit that in my pub-
lic addresses as a teacher of my religion in Utah Territory I have defended said tenet
of said church as being, in my belief, a revelation from God.

GEORGE Q. CANNON.

This is an adjudication of the charge that he is a polygamist. It
was one of the reasons alleged by Mr. Campbell, the coutestee, which in
his opinion rendered Mr. Cannon ineligible to the office of Delegate in
the House of Representatives. It was a proper subject-matter of proof,
and Mr. Cannon waived the proof by his admission, which was as broad
as the charge.

As long ago as July 1, 1862 (section 5352 of the Revised Statutes),
Congress enacted that :

Under his own hand, and without any objection or reservation, Mr.
Cannon admits that he is living in open violation of this statute, and
that he openly defies this edict of the two Houses of Congress, approved
by the President, and declared constitutional and valid by the Supreme
Court of the United States in the case of Reynolds vs. United States, 8
Otto, 145.

In addition to this statute, and the decision of the court as to its con-
stitutionality, that polygamy is a crime, we have the judgment of some
of the wisest and ablest statesmen and jurists of this country that its
teachings and practices are fatal to republican government and to the
constitutional, civil, and religious liberties that the Government of the
United States was designed to protect. In a recent debate iu the United
States Senate on the authority and power of Congress to enact a law

That no polygamist, bigamist, or any person cohabiting with more than one woman,
and no woman cohabiting with any of the persons described as aforesaid in this sec-
tion, in any Territory or other place over which the United States have exclusive juris-
diction, shall be entitled to vote at any election held in any such Territory or other
place, or be eligible for election or appointment to, or be entitled to hold any office or

H. Mis. 35 40

626 DIGEST OF ELECTION CASES.

place of public trust, honor, or emolument in, under, or for any such Territory or place,
or under the United States

Senator Garland, of Arkansas, said :

Both these Senators (Mr. Call and Mr. Vest) have said that the provisions of sec-
tion 7 and section 8 are severe provisions. They -were intended to he severe. They
have been said to be rough provisions. They were intended to be rough. Desperate
cases need desperate remedies, and I am of the opinion that every provision in this
bill is as well sanctioned by the organic law and precedents under the organic law of
this country as any bill that has ever received the sanction of Congress.

The proposition reported rests on the basis that the Territory of Utah needs some new
law ; the Territory of Utah is not properly governed according to the opinions of
many persons ; and I have in my hand reports on that subject running back for fif-
teen years submitted in the two Houses of Congress, and without a dissenting voiceit
is the general judgment that there is something wrong in that Territory ; that there is
something there that defies the laws of this country ; that there is something there
that sets at naught mandates and edicts (if I may use that expression) of the two
Houses of Congress, approved and sanctioned by the President of the United State*.

On the same subject, Senator Bayard, of Delaware, said :

In this case I do not propose to add anything further to what has been said, and
well said, by my friend from Arkansas [Mr. Garland], because I had in some degree
indicated the same line of opinion. I had stated, and I here reiterate, that there is
nothing of the reality of a republican form of government in the Territory of Utah.
It is a maleficent and malevolent union of church and state; it is a theocratic gov-
ernment higher than the Constitution of the United States in the estimation of its
votaries, and which compels an obedience that is hostile to the spirit of liberty and
spirit of law and the American laws and constitutions themselves.

Now, the question is, in a republican Congress, under a Constitution expressly
guaranteeing to the States a republican foiin of government, and which is intended
in all its departments to be in the form and to breathe the spirit of a republican gov-
ernment, can you say that it is not a needful rule and regulation by Congress to enact
such laws as shall bring to an end a doctrine so fatal to republican government and
to the constitutional, civil, and religious liberties that that government was designed
to protect ?

On the same subject Senator Edmunds, of Vermont, said :

The government of the Territory of Utah in every one of its practical, administra-
tive, and political aspects is a government of polygamists not a government of faith
or opinion, but a government of fact. The men who practice that thing are in pos-
session of that government ; they are in possession of it in defiance of the statutes of
the United States punishing that thing ; they are in possession of it in defiance of all
civilized, Christian, modern understanding of what it is right to do, not what it is
right to think.

*##**

No man, North or South, who believes in the Christian religion, who believes in a
republican government, canmaintain or has maintained in this body that this institu-
tion of poly gamy is one that can exist consistently with our universal idea of the true

theory of a republican government. Nobody has pretended such a thing.

* * * * * * *

The Committee on the Judiciary recognize to the fullest extent all that has been
said touching the right of every man and every woman to believe precisely what he
or she likes. He may be an infidel and believe in nothing ; he may be of any sect ;
he may believe that a hundred wives or no wives are right ; he may believe in horse-
stealing or whatever he likes. So long as he believes merely he has a right to his
opinion ; but when it comes to what he has to do in the government of the country it
is a different thing.

More than that and beyond that, it is not the mere practice of polygamy, bad as
it is, but that happens to be an inherent and controlling force in the most intense and
anti-republican hierarchy, theocracy, as an organized and systematic government
that, so far as my small reading has gone, has ever existed on the face of the earth.
The Church of Latter-day Saints, a corporation organized under the authority of law,
controls in every respect every step in the Territorial operations of that community.
The three presidents by step after step, the three first presidents, as they are called,
but I believe that the last one of those is the absolute ruler in point of fact you may
disguise it and gloss it as you please of the destiny and the fate of that peope, polyg-
amists, Mormons who are not polygamists, and Gentiles. Is that republican ? Can

CANNON VS. CAMPBELL. 627

you tolerate in the heart of this continent of republics the building up of a State of
that character .'

From the views of such able jurists and statesmen we may safely con-
clude that the opinions and practices admittedly held, beliered in, prac-
ticed, and taught by Mr. Cannon are totally at variance with and hostile
to the spirit of liberty, the letter of the laws, and the spirit and letter of
the Constitution of the United States, and that such belief, such teach-
ings, and such practices disqualify him to set as a Delegate in the House
of Representatives.

Is it, then, such a disqualification as comes within the provisions of
section 5, Article I of the Constitution ?

Webster defines "quality" to make fit, suitable, or competent for any-
thing; and "qualification" that which qualifies or fits any person or
thing for any use or purpose, as an office, an employment; capability,
fitness, accomplishment.

Mr. Cannon lives in open defiance to the statutes of the United States;
in defiance of all civilized, Christian, modern understanding of what is-
right to practice ; he preaches, teaches, and practices tenets and upholds
and obeys the edicts of an institution that sets the laws of the Govern-
ment at defiance, that is fatal to republican institutions and so baneful
in its teachings that unless overthrown will sap the very foundations of
the citadel of our liberties. Is such a man a "fit" man to be admitted
to the House of Representatives? Is he a "suitable" man to admit to
a seat in Congress J ? Does he possess those requisites which qualify him
to hold an office in the legislative branch of the Government ?

But it is contended that the only inquiry Congress can make as to
the "qualifications" of any one seeking admission as a Delegate or
Member to Congress is confined to those mentioned in section 2 of arti-
cle I of the Constitution, viz, age, citizenship, and residence in the State
in which he shall be chosen ; and that inasmuch as the Constitution is
silent on all other qualifications the inquiry is necessarily limited to these
alone. In support of this theory its advocates cite the opinion of Judge
Story and other eminent jurists, and a long line of precedents, chiefly
valuable on account of their age and uniformity. These decisions and
precedents, however, are not binding on Congress ; they are only per-
suasive.

The power of Congress to decide for itself in all matters within its
scope and authority is as absolute and unlimited as that of the Supreme
Court of the United States in its proper sphere, and it has the same
constitutional right and prerogative to reverse the decisions of former
Congresses and to decide in the face of precedents and opinions, no
matter how ancient or judicial the source, as has the Supreme Court to
reverse former decisions and ignore the opinions and decisions of other
courts. And whenever a wrong is to be righted ; whenever injustice is
to be uprooted ; whenever barbarism, or anarchy, or treason is to be
halted in its attack on the citadel of our liberties; whenever an insti-
tution or government political or religious within the geographical
limits of this Government, be it State or Territorial, defies the laws of
the land, sets at naught the mandates and edicts of the two Houses of
Congress ; sets up a theocratic government higher than the Constitution
of the United States in the estimation of its votaries, and compels an obe-
dience that is hostile to the spirit of liberty and the spirit and letter of
our laws ; establishes a government founded upon a system which cannot
exist consistently with the universal idea of the true theory of a repub-
lican government ; that under the forms of law and under the shield of
a so-called religion deputizes one man as the absolute ruler in point of

28 DIGEST OF ELECTION CASES.

fact of the destiny and the fate of 120,000 people polygamists, Mormons
who are auti-polygamists, and Gentiles whenever such a hydra-headed
monster of injustice, iniquity, and auti-republicanisiu shall threaten the
peace of this nation, it is quite time that Congress should assert its
prerogatives, should trample down ancient precedents if they stand in
its way, should disregard the opinions of any man, no matter how rep-
utable, if they are quoted ever so persuasive, and call a halt on the
enemy of free government.

The exercise of such power is not the exercise of " brute force," as
some have denominated the majoiity action of this committee; it is
the exercise of that right which is as inherent in governments as in cit-
izens, the right of self-defense, of self-preservation the right and au-
thority and duty of governments to protect their existence from all en-
emies, domestic as well as foreign.

In doing this you may run counter of a precedent or decision or opinion
that once was highly esteemed ; so much the worse for the precedent.
The naked, rugged issue is presented to this House: Shall a man who
lives in open, boastful adultery, a crime proscribed by the laws of God
and man, but canonized by the people he seeks to represent, prac-
ticed and taught as a religious duty by 28 out of 36 members of the
legislature who demand his admission ; who admits that he is a member
of the church of Latter-day Saints, with all that such an admission im-
ports its open hostility to our laws, its anti-republicanism, its malefi-
cent and malevolent union of church and state shall such a man be
admitted to a seat in Congress? Is he eligible to the office of Delegate
in the House of Eepresentatives? We think not; and we therefore
join with the majority and ask that the report of the majority of this
committee be adopted by the House.

ME. JACOBS' VIEWS ON THE PEIMA FACIE CASE.

'This contest may be resolved into the following propositions :

First. Is the governor's certificate such a muniment of title as con-
fers the seat prima facie upon the contestant? McCrary, sec. 208, de-
clares that " It is enough for a prima facie case if the certificate comes
from the proper officer of the State, and clearly shows that the person
claiming under it has been adjudged to be duly elected," &c. It is made
conclusive of the prima facie title of the contestee, because it is a record.
To be a record it must import absolute verity. It derives its authority
from a single fact, and that fact is that the holder of the certificate re-
ceived the highest number of votes. That fact may be omitted and the
certificate still be valid. But when, in addition to that fact, the certi-
fying officer couples with it the statement of another fact not necessary
or germane to his determination, and upon both facts argumeutatively
(therefore) concludes that contestee was " duly elected," the document
fails to import absolute verity, excites doubt, challenges controversy,
and opens the door to investigation.

Second. The coutestee having failed to make & prima facie title to the
seat, and he being the only person bearing the certificate of the only
officer competent for that purpose, it would seem to follow that the only
remaining question is which of these two persons having the qualifica-
tions prescribed by the Constitution received the greatest number of
votes at the election 1

And here, at the threshold, it is objected that the contestant has failed

CANNON VS. CAMPBELL. 629

to make any proof of the allegation, in his notice of contest contained,
that he received the highest number of votes at such election within
the time prescribed by law.

To which it may be replied that the notice of contest proceeded upon
the assumption that the certificate of the governor conferred upon the
contestee a prima facie title to the seat.

But if I arn right in my first conclusion, and the contestee has, by
reason of his certificate, no valid title whatever, then how can the bur-
den of proof in the first instance be said to be upon the person who has
named himself as the contestant ? Both being destitute of a prima fade
title, how do the parties differ so far as determining which has the
affirmative in the contest.

But if the form the contest has taken is to be deemed to determine
that, then we are brought to the question, Is the admission contained on
page 32 of the Record sufficient to put the contestee to proof of the
affirmative allegations of his answer. At all events the contestee seems
to have so regarded it, when, upon notice to the contestant, he pro-
duced and examined witnesses before the notary to establish the alien-
age and polygamy of the contestant.

For this and other reasons stated by counsel upon the argument, and
which it would be idle to recapitulate, I hold that the contestee held
the affirmative in the introduction of proof before the notary ; and not
having asked to be relieved from his default, we are brought to the in-
quiry, Was the contestant at the time of his election an alien ? Upon this
question I adopt the reasoning of the chairman, and hold that the judg-
ment of naturalization cannot be attacked collaterally, and in conclusion^
constrained as I am by my views of the principles of construction to
hold that George Q. Cannon was, at the time of the election, a citizen
of the United States, and received the greatest number of the votes cast r
I am, nevertheless, of the opinion that this committee should recom-
mend and the House ought to refuse to admit the said Cannon to a
seat as a Delegate from the Territory of Utah, for the reason that r
in defiance of the laws of Congress and the sense of mankind, he is liv-
ing in open adultery with plural wives, and advocating the doctrines
and practice of polygamy.

And so, seeking the shelter of no subterfuge or technicality, I stand
on this proposition for the dignity and honor of the House.

VIEWS OF ME. BELTZHOOVER.

In the matter of the election contest of George Q. Cannon against
Allen G. Campbell. Territory of Utah.

HISTORY OF THE CASE.

This important contest is fortunately free from all partisan considera-
tions, and will, therefore, be determined upon its merits and the plain
principles of right. The election out of which it arises was held on
November 2, 1880, for the choice of a Delegate from the Territory of
Utah. The returns, which were duly filed with the secretary of the Ter-
ritory, were opened and canvassed by him in the presence of the gov-
ernor of the Territory, on December 14, 1880. The canvass of the votes r
which was concluded on January 8, 1881, showed that George Q. Cannon
received 18,568 votes, and Allen G. Campbell received 1,357 votes. The

630 DIGEST OF ELECTION CASES.

law provides that the person having the highest number of votes shall
be declared by the governor to be elected. The governor, however, in
the mistaken belief that he had the right to go behind the returns, heard
evidence and arguments to show that Mr. Cannon was an alien and
polygamist, and on these grounds finding, them, as he believed, sustained,
declared Mr. Cannon ineligible and disqualified to serve as a Delegate.
The governor further decided, under an erroneous view of the law, that
Mr. Cannon being ineligible, the votes cast for him were void, and Mr.
Campbell being a citizen and eligible, and having received the next
highest number of votes, was elected. The governor accordingly gave
Mr. Campbell a certificate of election, and filed among the records of
the Territory, in the office of the secretary thereof, an elaborate opinion
containing a full statement of the facts. The secretary of the Territory,
on January 10, 1881, gave Mr. Cannon a certified copy of the opinion
and declaration of the governor, and also, on January 20, 1881, gave
him a certified abstract of all the returns.

Mr. Cannon notified Mr. Campbell, on February 4, 1881, that he would
contest his seat on the ground that he, Cannon, had received a large
majority of the votes cast. On February 24, 1881, Mr. Campbell re-
plied to Mr. Cannon's notice that he was not elected, and, if elected, was
disqualified by reason of his alienage and polygamy. ISTo testimony
was taken by Mr. Cannon in support of his notice during the time al-
lowed to him by law, but on May 9, 1881, and subsequently thereto, tes-
timony was taken by Mr. Campbell to show that Mr. Cannon was a po-
lygamist aud an unuaturalized alien, and by Mr. Cannon, in reply, to
show his citizenship.

The certificates held by Mr. Cannon and Mr. Campbell and all the
papers and testimony in the case were placed in the custody of the
Clerk of the Forty-sixth Congress, and by him were handed over to his
successor at the organization of the Forty-seventh Congress.

When the Forty-seventh Congress was organized and the Delegates
from the Territories were called to be sworn, objection was made to
both Mr. Campbell and Mr. Cannon, and neither was admitted. After a
full discussion of the question as to which of the two gentlemen had the
prima facie right to the seat, it was resolved by the House, on January
13, 1882

That the papers in relation to the right to a seat, as a Delegate from the Territory
of Utah, be referred to the Committee on Elections, with instructions to report, at as
early a day as practicable, as to the prima facie right or the final right of the claim-
ants to the seat, as the committee shall deem proper.

This resolution clearly made the case a special one and took if out
of the regular order under which cases go to the Committee on Elec-
tions under the law and the standing rule of the House. Both the
prima facie and final rights were argued by the parties before the com-
mittee, but it would not be proper to prolong the contest by dividing and
reporting on the prima facie title, when the committee are ready to pass
upon the final right and thereby dispose of the case.

WERE THE CERTIFIED RETURNS EVIDENCE'?

The first question which was presented for the determination of the
committee was: Are the certified copies of the returns of the election
from all the counties in the Territory evidence I

During the thirty days allowed Mr. Cannon under the law for taking
testimony in support of his notice of contest he declined to take any
testimony, but attached to his notice copies of all the returns of election

CANNON VS. CAMPBELL. 631

from all the counties in the Territory filed in the office of the secretary
of the Territory, under the seal of said office. He also, subsequently,
after the time had expired for taking testimony by him in chief, filed
with the Clerk of the House certified copies of the same returns, and
they are now printed in the Record and are before the committee as
part of the papers in the case.

The counsel for Mr. Campbell, the coutestee, objected to these copies
and stopped on the threshold of the argument before the committee,
and asked to have the contest dismissed for the reason that Mr. Can-
non had not offered any competent testimony to sustain his case. I
am of the opinion that these certified copies are evidence, for several
reasons.

First. The returns are made to and filed with the secretary of the
Territory, in conformity to law, and as a part of the records of his office.
They are compiled by the clerks of the several counties from the pre-
cinct returns, and are sent to the secretary of the Territory under the
provisions of a well guarded election law. They are, therefore, records
of the secretary's office, upon which the important rights of the people
to representation depend, and can be certified for the purposes of evi-
dence as any other record.

Second. The election was held, the canvass was made, the result de-
clared, and the certificates issued, under sections 21 and 22 of the Terri-
torial act of 1878, and section 1862 of the Revised Statutes of the United
States. This is very clearly recognized by the governor all through his
opinion and in the certificate which he issued to Mr. Campbell. This
being so, the governor had only the right to declare who was elected,
and the secretary had the right to certify the declaration. The certifi-
cate of the governor was, therefore, without authority of law. The cer-
tificate of tl secretary of the Territory, which gives the whole declara-
tion of the result by the governor when the returns were opened and
canvassed in his presence by said secretary, is the legal certificate.
This certificate clearly gives Mr. Cannon the prima facie right to the
seat, and the copies of the returns, which were filed at the same time
with the certificate, corroborate that right. They are a part of the title,
which for the further consideration of the case is good enough without
them until it is assailed by testimony going to the legality and number
of the votes cast, ^o such testimony was given.

WHO WAS ELECTED ?

This brings us to the consideration of the second inquiry : Who was
elected and returned by the people ?

This question I will not take time to discuss. I am satisfied clearly
and beyond all doubt that Mr. Cannon received a very large majority
of the votes cast in conformity to the laws of the Territory, and was
duly elected and returned. I desire to emphasize this point for the
reason that I will not consent that the questions of election and return
shall ever be determined by anything but the honest majority of votes
cast. I do not believe that anything but votes can elect, and that the
permanence of representative government depends more upon faithfully
observing and respecting this principle than anything else. This dis-
poses of the claim of Mr. Campbell that he was elected and returned,
although he only received a small minority of the votes cast. The doc-
trine that when the majority candidate is ineligible or disqualified, the
minority candidate, being qualified, is elected is utterly repudiated in
almost all the States of this Union and by the uniform decisions of Con.

632 DIGEST OF ELECTION CASES.

gress. Under no circumstances, therefore, has Mr. Campbell any claim
or title to be seated in this contest.

IS MR. CANNON A CITIZEN ?

Having concluded that Mr. Cannon was elected and returned, there
remain the questions : First, is he disqualified because he is an alien ;
second, is he disqualified because he is an open and avowed polyga-
mist I

I have given the subject of Mr. Cannon's citizenship careful exami-
nation, and have concluded that, under the decision of the Supreme
Court of the United States in Campbell rs. Gordon, 6 Cranch, 176. the
certificate of naturalization held by him is valid. It is in strict con-
formity of the spirit and policy of our Government to give a very liberal
construction of the laws and regulations governing naturalizations.
We are a nation whose progress and prosperity are largely built upon
the emigration and absorption of the millions of people who have come
and will continue to come to us from foreign lands. A learned judge
has justly said :

If every naturalized citizen must always be prepared with his proofs to maintain
the grounds upon which he obtained his papers iu all courts and places in which they
maybe brought into question the boon of citizenship, which is so liberally bestowed,
would be barely worth possessing..

WHAT IS POLYGAMY ?

We come then to the great controlling question iu the contest : Is Mr.
Cannon disqualified to sit as a Dele'gate from the Territory of Utah be-
cause be is a polygamist ! *

What is polygamy ! What are its characteristics, doctrines, and
practices, and how does it affect its followers and adherents in their re-
ations and loyalty to the Government ?

We can give the most correct and compendious answers to these in-
quiries by quoting from the majority report of the Committee on Elec-
tions, made in the Fortieth Congress, in the contested election case of
McGrorty vs. Hooper. The committee went into the subject elaborately
and took testimony from every source which was within their reach.
They say :

That by reason of polygamy in Utah great crimes have been committed and hav&
been let go unwhipped of justice. Open violation of the authority of this Government
has frequently occurred. The sanctity of the ermine has been profaned, the course of
justice obstructed. Organized assassination has been frequently perpetrated.

The revelations of the seer have a higher authority than the laws of Congress. The
sermons of the Mormon apostles have an edifying effect in Salt Lake City quite equal
in the opinion of their followers to those of certain preachers in the cities of the East,
and of more weight than a judicial decision. Intolerance, -wrangling, violence, and
polygamy have marred the administration of our laws in Utah, and have weakened
the authority of the United States. Why ?

Because the organic law of the Territory does not remedy the evils local and pecu-
liar to Utah, thereby leaving the dominion and control of the Territory and its re-
sources completely in the hands of the hierarchy of the Mormon society.

Because the monopoly of wealth and power in the Territory is to a great extent in
the hands of the Mormon leaders, excluding competition from the so-called Gentiles,
t. e., citizens of the United States not members of the Mormon society, the preference
being by custom given to a Mormon whenever competition is likely to injure the
Mormon interest.

Polygamy prevails in spite of express laws of the United States, in open outrage of
every sacred family tie, controlling the social organization of the community, and
shaming the sense of propriety so long and well established among all races of Euro-
peans on this continent. No officer of the United States, civil or military, can hope

CANNON VS. CAMPBELL. 633

to exert any salutary influence over this society while polygamy is allowed in defi-
ance of his authority and against the law of the Government he represents.

Polygamy must be abolished in all this Territory, or the power of this Government
will be held in contempt by every class of inhabitants. Through its influence a so-
cial ban is put on all Christian women who remain true to the laws and customs of
their cotintry, and the precepts of their faith.

Isolated from all other influences than their own peculiar customs and prejudices,
the Mormon population are not amenable to the arguments usually applied to en-
lighten or reform mankind. A revelation from the seer or a strong inducement to mi-
grate seem the only easy remedies. Polygamy is synonymons with bigamy. Bigamy
is, under our law, a crime, and polygamy is a monstrous bigamy. Under the Mormon
organization it seems to threaten to become incest. The intermarriage of the lead-
ing families has made the usual definitions of fixing relationship very complex, if not
impossible, under the laws of the United States.

To the Mormons such definitions of polygamy and its developments are perhaps
harsh, but your committee use only the definitions established among and by the peo-
ple of the United States by common law and common decency. The instances of in-
cest among the Mormons are taken from the printed works on the customs of that
society, and your committee refer to them for the reliability of the statement. There
seems to your committee, however, abundant proof of the licentious practices under
the law regulating marriages in Utah to call for vigorous enforcements of the exist-
ing law of Congress'on the subject of polygamy. A conflict between monogamy and
polygamy has been inaugurated in defiance of our laws by the Mormons themselves.

And this licentious custom of marriage or reckless abuse of that sacred rite is one
of the most glaring and practical proofs of the aggressive and dangerous character of
a system which grows at the will or in obedience to the lust of a political ruler styl-
ing himself a prophet.

Toleration of religious views is a holy duty enforced on Congress by the Constitu-
tion, but no la w does or can exist which permits toleration of a practice hostile to the safety
of society. Such a practice may be introduced by the best and highest human author-
ity, but whether under the name of prophet, priest, or king it matters not so long as
the practice introduced be against established law of the land or fatal to the welfare
of the State.

There are other practices under the hierarchy of Utah which militates in the opin-
ion of your committee against the principles of good republican government. But
the origin of all these existing evils, and the certain source of innumerable future
evils in Utah, is in the prophetic power of the head of the society which rules there.
The union of church and State, the combined sanctity of the voice of God and the will
of the people, arm the chosen ruler of that organization with spiritual and temporal
power.

Has that power been hostile to the Government of the United States? Your com-
mittee believe that it is, and has been hostile rather from the inherent spirit of its

creation than from any design on the part of that people.

*'* * * *

The Secretary of "War in his report of December, 1857, says :

"The Territory of Utah is peopled almost exclusively by the religious sect known as
Mormons. They have substituted for the laws of the land a theocracy having for its
head an individual whom they profess to believe a prophet of God. This prophet de-
mands obedience, and receives it implicitly from his people, in virtue of what he assures
them to be authority derived from revelations received by him from Heaven.

" Whenever he finds it convenient to exercise any sp.ecial command, these opportune
revelations of a higher law come to his aid. From his decrees there is no appeal j
against his will there is no resistance.

" From the first hour they fixed themselves in that remote and almost inaccessible
region of our territory from which they are now sending defiance to the sovereign
power their whole plan has been to prepare for a successful secession from the au-
thority of the United States and a permanent establishment of their own."

On the 13th of February, 1863, Senator Wade, in a report submitted to the Senate
of the United States in reference to Utah affairs, used the following language :

" The customs which have prevailed in all our Territories in the government of pub-
lic affairs have had but little toleration in the Territory of Utah ; but in their stead
there appears to be, overriding all other influences, a sort of Jewish theocracy, gradu-
ated to the condition of that Territory. This theocracy having a supreme head who
govern and guides every affair of importance in the church, and practically in the
Territory, is the only real power acknowledged here, and to the extension of whose in-
terests every person in the Territory must directly or indirectly conduce. We have
here the first exhibition, within the limits of the* United States, of a church ruling
the State.'' (Thirty-seventh Congress, third session, Rep. Com., No. 87.)

In January, 1866, certain resolutions were referred to the Committee on the Terri-
tories of the House of Representives, instructing them to " inquire and ascertain what
means, civil or military, might lawfully be resorted to to effectually eradicate the evil

634 DIGEST OF ELECTION CASES.

of polygamy from the laud, what legislation was needed for that purpose, and why
the law against polygamy was not enforced"; also a resolution instructing the same
committee to inquire into the expediency of reporting a bill providing for the repeal
of the law organizing the Territory of Utah, and for dividing said Territory and
attaching a portion thereof to the State of Nevada, and the residues to the Territories
contiguous to Utah.

That committee, through Hon. J. M. Ashley, chairman, reported July 23, 1866, that
they were unable to agree upon any plan which seemed to them to promise a practical
solution of the abuses and evils complained of, and which were admitted to exist.
They postponed the further consideration of the matter and reported the testimony.

The committee state that "the testimony discloses the fact that the laws of the
United States are openly and defiantly violated throughout the Territory, and that
an armed force is necessary to preserve the peace and give security to the lives and
property of citizens of the United States residing therein." (H. Rep. No. 96, Thirty-
ninth Congress, first session.')

* * # # * * *

Express statute passed July, 1862 (12 Stat. at L., 501, 502), provides suitable penal-
ties for the violation of the law against polygamy. Have the people of Utah obeyed

this statute ?

##** * *

Did this community then submit to that law and obey it ? Or have they since per-
sistently lived in its open violation ? Polygamy was alarmingly increased since the
passage of the law. Brigham Young himself was one of the first to violate it, pub-
licly espousing another wife on the 29th of January, 1863.

In the summer of 1863 Judge Drake, upon the hearing of a hn^eas corpus case, ordered
that a girl who had been inveigled into a "plural" marriage with a Mormon bishop
should be returned to the custody of her mother, and the marshal was ordered to exe-
cute the decree. But the people seized the girl as she was passing out of the court-
house, bore her off in triumph, and delivered her to the bishop.

Judge Drake tells us that " since the commencement of 1865 polygamy has increased
-at least one hundred per cent, throughout the Territory. Previous to the year 1863
this doctrine or practice was net generally held to be a religious necessity, but merely
a tolerance to be indulged in by those who desired it. It is now held to be a cardinal
point. That and the shedding of the blood of apostates to save their souls are the
two soul-saving doctrines of the Mormon faith." (Statement of Hon. Thomas J.
Drake, H. Miss. Doc., No. 35, second session Fortieth Congress, pp. 9, 10.)

The question then arises, Shall a community be represented in the Congress of the
United States who are thus living in open violation of a law passed for the protection
of the highest interests of society and of the state ?

We have thus considered the question in reference to polygamy generally, without
referring specially to those obscene and disgusting practices which are, in this case,
concomitants. Incest in its various forms and under various names is practiced and
encouraged.

The marriage of a man with the mother and her daughters indiscriminately and
marriage with a half sister are permitted. William Hepworth Dixou says that
Brigham Young admitted to him in conversation that he saw no objection to the mar-
riage of brother and sister. But he spoke for himself only, as he thought the church
was not yet prepared for so strong a doctrine. (New America, by William Hepworth
Dixon, p. 216.)

By reference to a sermon preached by Young April 8, 1853, and reported in the
Deseret News, vol. iii, No. 12, it will be seen that he thought it (the church) prepared
for another doctrine equally strong the marriage of a mother with her own sou.

Such are the doctrines and practices which are sought to be established and incor-
porated into the framework of society in the heart of this continent. Is it not time
that the representative of this corrupt, licentious, this tyrannical, traitorous, and
bloody priesthood should be sent back to his constituteuts, with instructions to aban-
don their unwarrantable assumptions of temporal power, obey the laws, and remodel
their government so that it shall conform to the spirit of our free institutions?

The following facts, which are pertinent to the inquiry now in hand,
are found from the foregoing extract :

1. Polygamy is the basis of a fanatical hierarchy which is antagonistic
to our institutions and laws, and no one who is subject to it can be well
disposed toward the Government of the United States.

2. It is a disgrace to our civilization and offensive to the moral sense
of mankind.

3. It breeds open defiance of our laws, and renders a republican form
of government impossible where it prevails.

CANNON VS. CAMPBELL. 6< P 5

4. It is hostile to civil society and fatal to the welfare of the State.

IS ME. CANNON A POLYGAMIST ?

We next inquire, is Mr. Cannon a polygamist ? That he is, in the
fullest, broadest, and most complete sense, is proven by his own con-
fession, over his own signature, in the following language :

Iu the matter of George Q. Camion. Contest of Allen G. Campbell's right to a seat in
the House of Representatives of the Forty-seventh Congress of the United. States
as Delegate from the Territory of Utah.

I, George Q. Cannon, contestant, protesting that the matter in this paper contained
is not relevant to the issue, do admit that I am a member of the Church of Jesus
Christ of Latter-day Saints, commonly called Mormons-; that in accordance with the
tenets of said church I have takeu plural wives, who now live with me, and have so
lived with me for a number of years, and borne me children. I also admit that in my
public addresses as a teacher of my religion in Utah Territory I have defended said
tenet of said church as being, in my belief, a revelation from God.

GEO. Q. CANNON.

This paper was given by Mr. Cannon to prevent the contestee from
going into the proof fully and squarely, which he proposed to do by call-
ing witnesses who would have been compelled to disclose the facts. The
paper was intended to be an unqualified surrender and agreement as to
the fact of his being a polygamist in the broadest sense, and must be so
considered. It therefore distinguishes this contest from all those that
have preceded it in which this question of polygamy was raised. In the
last contest which Mr. Cannon had with Mr. Maxwell, in the Forty-third
Congress (1874), he denied most emphatically that he was a living with
four wives or living or cohabiting with any wives in defiant or willful
violation of the law of Congress of 1862." He denied that he was then
il living, or had ever lived, in violation of the laws of God, man, his
country, decency, or civilization, or of any law of the United States."
These broad denials on the very issue which was the chief one involved
in that contest doubtless had a great deal to do with the finding in Mr.
Cannon's favor.

But in this contest we have not only no denial, but an open confession.
We have a man knocking for admission at our doors who is a confessed
preacher and practicer and apostle and defender of polygamy in its most
odious form ; who declares that he is a member of the Mormon Church ;
who, in obedience to the doctrines of that church which he claims teach
that it is right and righteous to marry more than one wife, has taken
plural wives and lived and cohabited with them, and they have borne
him children, and who has taught and teaches this doctrine as a revela-
tion from God. The plain and unambiguous question now is whether
such a man, under the law of the land and the customs and preroga-
tives of this House, is qualified to hold a seat as a Delegate from the
Territory of Utah.

The Parliament of England, one of the greatest legislative bodies on
the earth, has just expelled, by an overwhelming vote, a person who
sought to hold a seat among its members because iu the light of this
Christian century he profanely avowed his disbelief in the existence of
a God. This could not have been done in this Government, under
whose Constitution " no religious test shall ever be required as a quali-
fication for any office under the United States." But polygamy has
been held by the Supreme Court of the nation not to be religion but a
crime, and will it be just for this the highest legislative tribunal of this
great Christian Eepublic to admit to its membership one who openly
and uublushiugly charges God with inspiring and revealing and com-

636 DIGEST OF ELECTION CASES.

mantling to be preached and taught among men a doctrine not only of
filth and lust, but of hostility to our Government and defiance to our
laws f A doctrine which profanes and defies the pure and holy law
which binds the families and forms thereby the great foundation of so-
cial virtue on which a free nation must rest ; a doctrine which insults
the sacred titles of mother and wife, and sister and daughter ; a doc-
trine which ignores the mighty progress of mankind and defies the civ-
ilization and literature and philosophy which Christianity has brought
to light among men.

WHAT QUALIFICATIONS MUST DELEGATES HAVE!

But notwithstanding that polygamy is an institution of the character
we have stated, and that Mr. Cannon is its representative, it is con-
tended that under the Constitution and law we have no right to re-
fuse him a seat as Delegate from Utah. This leads us to inquire into
the powers of Congress over the Territories, and how far this House
has the right to prescribe qualifications for the admission of Delegates
therefrom.

The only portion of the Constitution of the United States which re-
fers to the Territories is Article IV, section 3, clause 2, which provides:

" The Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property belong-
ing to the United States."

This clause of the fundamental law has received the most learned and
elaborate consideration by the Supreme Court in Scott vs. Sanford (19
Howard, 393, &c.), wherein, after going fully into the whole history of
the Territories from the time of the first cession to the Government, it
is held that this clause

Applies only to territory -within the chartered limits of some one of the States when
they were colonies of Great Britain, and which was surrendered by the British Gov-
ernment to the old confederation of the States in the treaty of peace. It does not
apply to territory acquired by the present Federal Government by treaty or conquest
from a foreign nation.

To all other territory it is held that the Constitution does not extend,
and cannot be extended by Congress, except in so far as Congress may
enact the provisions of the Constitution into a part of the organic law of
such territory. This has been done in regard to Utah, first by the act
of Congress which organized that Territory, and which provides that
" the Constitution and laws of the United States are hereby extended
over and declared to be in force in said Territory of Utah, so far as the
same or any provision thereof may be applicable."

The Revised Statutes, sec. 1891, provides in somewhat different lan-
guage, but of the same purport, that " the Constitution and all taws of
the United States which are not locally inapplicable shall," &c.

The Constitution and all the laws of the United States are, therefore,
a part of the statute law of the Territory of Utah, so far as they are
applicable locally to that Territory.

Now, what was the design of the franiersof the Constitution in refer-
ence to the Territory which they provided for in the clause which we
have quoted above ? The history of the subject clearly shows that they
intended to commit the unorganized Territories wholly to the discretion
and unlimited power of Congress. This is so decided by the courts in
all the cases in which the subject is considered; this was so held in
Scott vs. Sandford (supra), and Judge Nelson, in Benner vs. Porter, (9
Howard, 235), says :

CANNON VS. CAMPBELL. 637

They are not organized nnder the Constitution nor subject to its complex distribu-
tion of the powers of government or the organic law, but are the creatures er<ln-
ziiely of the legislative depart mint, and subject to its supervision and control.

It is held by Judge Story that

The power of Congress over the public Territories is clearly exclusive and universal,
and their legislation is subject to no control, but is absolute and unlimited, unless so far
as it is affected by stipulations in the cessions, or by the ordinance of 1787, under
which any part of it has been settled. (Story, Constitution, sec. 1328 ; Eawle, Con-
stitution, p. 237; 1 Kent's Commentaries, p. 243. )

The Supreme Court of the United States, in a very recent case, says :
The power is subject to no limitations. (Gibson vs. Chouteau, 13 Wall., 99.)

See also Stacey rs. Abbott (1 Ain. Law, T. E., 84), where it is held by
the supreme court of one of the Territories that they "are not organized
under the Constitution ; they are exclusively the creatures of Congress."

But there is something more shown by the history of the clause in the
Constitution in reference to Territories and by the decisions of the courts
thereon. It is clear from both these that it was never intended that the
status of the Territories should in any respect approach so near th
haracter and position of sovereign States as to require that whatever
agents these Territories might be entitled to on the floor of Congress
cshould have the status and qualifications of members of Congress. The
Territories in the minds of the frainers of the Constitution had none of
the rights and attributes of the States. No other parts of the Consti-
tution were made to apply to them except the clause we have quoted.
On the contrary, they were spoken of as property, and power was given
to Congress to dispose of them as property, and to make all needful rules
and regulations respecting them as other property of the United States.
They were put in the same category with the other chattels of the Gov-
ernment. There is, therefore, nothing in the Constitution which will
justify us in believing in the light of its history that the qualifications
of agents who might be appointed to look after the interests of the Ter-
ritories on the floor of Congress should be the same or even like those
of members of Congress. This is so, we maintain, with regard even to
that territory over which the Constitution extends directly and imme-
diately, because it was within the control of the Government at the
time the Constitution was framed. If, therefore, the Constitution did
not con template the requirement of such qualifications for Delegates as
ogents of the Territory within its immediate purview, with much less
plausibility can it be contended that it should require them where it is
only extended as a part of the statute law. The Constitution clearly
puts it in the power of Congress to say at any time and in any way it
may see proper what qualifications it will exact of the agents whom as a
matter of grace and discretion it permits to come from the Territories
into its deliberations, and to sit among its members. Neither the Sen-
ate nor the Executive, nor any other power on earth, has any right to
interfere except by permission in fixing the qualifications for admission
to the House; and the concurrence and co-operation of the Seuateand
Executive in the passage of any enactment on the subject can go no
further in giving it force and validity than to make it a persuasive rule
of action which the House is at liberty to follow or disregard. " Each
House shalllye the judge of the election, returns, and qualifications of
its own members." No law that was ever passed on this subject, which
is under the exclusive and unlimited control of Congress, by any former
Congress is binding on any subsequent Congress. Each Congress may
wholly repudiate all such acts with entire propriety. It is customary to
regard them as rules of conduct. This is \vell illustrated by the doc-

638 DIGEST OF ELECTION CASES.

triue laid down by McCrary in his Law of Elections, section 34#, in ref-
erence to the laws made to govern contested elections :

The Houses of Congress, -when exercising their authority and jurisdiction to decide
upon "the election, returns, and qualifications" of members, are not bound by the
technical rules which govern proceedings in courts of justice. Indeed, the statutes
to be found among the acts of Congress regulating the mode of conducting an elec-
tion contest in the House of Representatives are directory only, and are not and can-
not be made mandatory under the Constitution. In practice these statutory regulations
are often varied, and sometimes wholly departed from. They are convenient as rules
of practice, and of course will be adhered to unless the House, in its discretion, shall
in a given case determine that the ends of justice require a different course of action.
They constitute wholesome rules, not to be departed from without cause. // is not
within the constitutional power of Congress, by a legislative enactment or otherwise, to control
either House in the exercise of its exclusive right to be the judge of the election, returns, and
qualifications of its own members.

The laws that have been enacted on this subject being therefore only directory and
not absolutely binding, would have been more appropriately passed as mere rules of
the House of Representatives, since by their passage it may be claimed that the House
conceded the right of the Senate to share with it in this duty and power conferred by
the Constitution. It is presumed, however, that the provisions in question were eii-
acted in the form of a statute rather than a mere rule of the House, in order to give
them more general publicity, &c.

It is also important to observe the wide distinction which Congress
has always made between the powers and status of a member of Con-
gress and a Delegate from a Territory.

A member of Congress is sent by a State by virtue of its irrefragable
right to representation under the Constitution of the United States.
This right Congress cannot abrogate or control or limit or modify in
any way.

A Delegate is an agent of a Territory, sent under the authority or per-
mission of an act of Congress. This right or permission is subject to
the merest whim and caprice of Congress. It can be utterly wiped out
or modified or changed just as Congress may see proper at any time.

A member of Congress must have certain qualifications under the
Constitution.

A Delegate need have none but what Congress sees fit to provide.

A member of Congress is the representative and custodian of the po-
litical power and interests of a sovereign State, which is itself a factor
and part of the Government.

A Delegate has no political power, but is only a business agent of the
Territory, for the purest business purposes. He has no right to vote or
aid in shaping the policy of the Government in war or peace.

A member of Congress is an officer named in the Constitution of the
United States, and contemplated and provided by the framers thereof at
the time of the organization of the Government. He is a constitutional
officer.

A Delegate is not a constitutional officer in the remotest sense. There
were no Delegates mentioned or thought of by the framers of the Con-
stitution.

A member of Congress is chosen under section 2, Article I of the
Constitution, which provides that

The House of Representatives shall be composed of members chosen every second
year by the people of the several States, and the electors in each State shall have the
qualifications requisite for electors of the most numerous branch of the State legisla-
ture. No person shall be a Representative who shall not have attained the age of
twenty-five years and been seven years a citizen of the United States, and who
shall not, when elected, be an inhabitant of the State in which he shall be chosen.

This specifially and definitely and indubitably fixes how and where
and by whom members of Congress shall be chosen and what qualified-

CAXXON VS CAMPBELL. 639

tions they must impcrath-dy have. " Xo person SHALL be a Representa-
tive," &c., without these qualifications.

ADe^egateis chosen under section 1862 of the Revised Statutes, which
provides that

Every Territory shall have the right to send a Delegate to the Honse of Represent-
atives of the United States, to serve during each Congress, who shall he elected by
the voters of the Territory qualified to elect members of the legislative assembly
thereof. The person having the greatest number of votes shall be declared by the
governor duly elected, and a certificate shall be given accordingly. Every such Del-
egate shall have a seat in the House of Representatives, with the right of debating
but not of voting.

This fully and very clearly provides how Delegates shall be chosen
and what power they shall have, but does not exact or provide any qual-
ifications or hint at any. This is the same provision substantially which
has been made for Delegates from 1787 down to this time. The provis-
ion in the act of July 13, 1787, for the government of the Northwest
Territory, is that the joint assembly of that Territory "shall have author-
ity, by joint ballot, to elect a Delegate to Congress, who shall have a
seat iu Congress with the right of debating, but not of voting."

These few marked points of distinction between the two offices not only
show that the constitutional qualifications for members do not apply to
Delegates, but that none of the legislation which has ever been enacted
on the subject seems to have been founded on the belief that they did.

CONGRESS HAS ADDED TO THE CONSTITUTIONAL QUALIFICATIONS OP
MEMBERS ; WHY NOT OF DELEGATES ?

But admitting for the purposes of this discussion, what cannot be main-
tained, that the same qualifications which entitle a member of Congress
to admission shall also entitle a Delegate to the same right, and I still
hold that Congress has the right and power to say that a polygamist
shall not be admitted as a Delegate. Under the high power inherent
in every organization on earth to preserve its integrity and existence
Congress has the indubitable right to keep out of its councils any person
whom it believes to be dangerous and hostile to the Government.

During the war almost the whole Congressional delegation from the
State of Kentucky were halted at the bar of the House, and, on the ob-
jection of a member, were not permitted to be sworn until it was ascer-
tained whether they or either of them were guilty of disloyal practices.
They had each every qualification usually required by the Constitution ;
they were duly and regularly elected and returned ; they were sent by
a sovereign State, holding all her relations in perfect accord with the
Federal Government ; but the House proceeded to inquire into each case,
and not until a reasonable investigation was had were any of them ad-
mitted. The committee which had the matter in charge reported, and
the House adopted and laid down, the following rule on the subject of
all such cases :

Whenever it is shown by proof that the claimant has, by act of speech, given aid or
countenance to the rebellion he should not be permitted to take the oath, and such
acts or speech need not be such as to constitute treason technically, but must have
been so overt and public, and must have been done or said under such circumstances
as fairly to show that they were actually designed to, and in their nature tended to,
forward the cause of the rebellion.

In the case of John Young Brown, who was among the number, the
committee almost unanimously reported against his right to admission
on the ground that he had written an imprudent and disloyal letter ;

640 DIGEST OF ELECTION CASES.

nothing more. He had never committed an act of treason. He was
never arrested or tried or convicted. He denied all treasonable intent
in the letter and made every effort in his power to explain and extenuate
his offense. But seven out of the nine members of the Committee on
Elections of the Fortieth Congress reported that he "was not entitled
to take the oath of office, or to be admitted to the House as a Representa-
tive from the State of Kentucky." This report was adopted by the
House by a vote of 108 to 43. The minority report in that case made
an argument against the action of the majority in almost the same words
and on identically the same grounds that the minority of the Committee
on Elections occupy in the case under consideration. It was argued
that Mr. Brown had all the constitutional qualifications, and that Con-
gress had no right to exact more j that in any event he had never been
tried or convicted of treason, and unless convicted of the crime even
treason was no disqualification. But Congress then laid down the rule
above given, and never abrogated since, that, in addition to the ordi-
nary constitutional requirements, every man must be well disposed and
loyal toward the Government before he can be admitted to Congress
to aid in forming its policy and controlling its destinies.

The act of July 2, 1862, providing what is known as the iron-clad oath,
added a new and marked qualification to those required of members of
Congress prior to that time, and every member who has taken that oath
since has submitted to the exaction of that additional qualification . The
distinguished counsel who argued the case of Mr. Cannon before the
Committee on Elections felt the force of this act, and the long-continued
practice of Congress under it and explained it as a war measure. He
said :

The grounds upon which this law was vindicated, although uot stated with much
care or precision, are nevertheless clearly enough disclosed by the debates. It was en-
acted as a war measure. The iron-clad oath was adopted as the countersign which
should, in time of war, exclude domestic enemies from the civil administration of the
Government, in the same manner and for the same reason that the military counter-
sign was employed to exclude those enemies from the military lines of the army. It
was enacted as a measure of defense against an armed enemy in time of war, and was
as necessary and as justifiable as any other war measure not specifically marked out
in the text of the Constitution.

If Congress could, almost without challenge, provide and add such a
distinct and imperative qualification, not for Delegate but for a mem-
ber of Congress, in 1862, why may we not in 1882 ask a reasonable addi-
tional qualification for a Delegate from a Territory who does not
come within the letter or spirit of the Constitution ? The act of 1862
was a bold and radical assertion of the doctrine of self-preservation on
the part of Congress to maintain its integrity and the purity and loy-
alty of its counsels. The resolution recommended by the majority of
the Committee on Elections only says to the people of Utah, you shall
not abuse the privilege of representation which we allowed you on the
floor of Congress, by sending as your Delegate a person who adheres to
an organization that is hostile to the interests of free government, and
whose doctrines and practices are offensive to the masses of the moral
people of the great nation we represent.

CONCLUSION.

The following is a summary of the reasons for my concurrence in the
resolutions of the majority of the committee :

1. The history of the cession and organization of the Territory, which
belonged to the Federal Government at the time of its formation, the

CANNON VS. CAMPBELL. 641

history of the clause in the Constitution which relates to that Territory,
and the Constitution itself, all show clearly that it was not contem-
plated or intended that Delegates which might be sent from said Terri-
tory, then immediately under the Constitution, should have the same
qualifications as members of Congress.

L>. The Constitution does not extend over Utah, except as a part of
the statute law provided for that Territory by Congress, and there is,
therefore, more reason for holding that the qualifications required for
members of Congress by the Constitution do not extend to Delegates
from that Territory than there is in relation to Delegates from Territory
immediately under the Constitution.

3. The Constitution not only does not provide that Delegates shall
have the same qualifications as members of Congress, but no law, in
almost a century of legislation on the subject, has so provided.

4. There is no reason why the qualifications of Delegates should be
the same as those of members of Congress. Their status and duties
and powers are widely different, and their qualifications should be
made to conform to those powers and duties w^ich in case of Delegates
are purely of a local and business character.

5. The Territories can only be held and governed by Congress with
one single purpose in view, which is to adapt and prepare them for
admission as States of the Union. It will hardly be contended that
Utah will ever be admitted as a State while polygamy dominates it, or
that it is preparing it for admission as a State to hold out to its people
the delusive doctrine that a polygamist is not disqualified as a member
of Congress, and therefore that polygamy is no bar to the admission of
Utah to the Union.

6. No law fixing the qualifications of Delegates passed by any former
Congress would be binding on any subsequent Congress. BACH House
shall be the judge of the qualifications of its own members, and, for a
much stronger reason, IT should be the exclusive judge of the qualifica-
tions of the Delegates, which are its creatures, and which it admits as
matter of its own discretion.

7. Congress has held, from 1862 down to this time, that it has the
right to prevent the admission of persons as members who are hostile
to the Government by excluding them on that ground, although they
possess all the other qualifications required by the Constitution ; with
much more propriety, and much less stretch of power, Congress has the
right to exclude a Delegate who is not well disposed toward the Gov-
ernment, and who openly defies its laws.

OPINION OF ME, RANNEY, IN CANNON vs. CAMPBELL, AS
EXPRESSED TO THE COMMITTEE IN SESSION.

The chairman has drawn and has printed his report, which he pro-
poses to make to the House, and which is before us.

I am asked, among other members of the committee, to express my
views of this case to go on the records of the committee.

The committee are instructed only to report as to the prima facie right
or the final right of the claimants to a seat.

1. As to the facts of the case, I concur in the findings stated in the
report, so far as they are material to the issues of law involved in the
case. The state of the vote as returned by the county canvassers to the
H. Mis. 35 41

642 DIGEST OF ELECTION CASES.

secretary of the Territory, and as alleged in the notice of contest and
admitted in the answer of the contestee, shows the vote to have been
18,568 for Mr. Cannon, 1,357 for Mr. Campbell, and 8 for all others.
There is no substantial ground on which the claim that Mr. Cannon
was an alien and never naturalized according to law can be satisfac-
torily maintained. That question was heard and settled in the House
in another contest long since, and Mr. Cannon has accordingly held a
seat in the House as Delegate from 'Utah for four terms of Congress,
and it is time for that part of the controversy to be forever put at rest,
especially as it is now proved again conclusively by both record and
parol evidence. He has been shown also to be possessed of all the
qualifications prescribed by the Constitution and laws of the United
States, as well as those of the Territory.

It appears that the certificate was denied to him by the governor on
an adjudication made by him that Mr. Cannon was an alien, not legally
naturalized, and because he was charged with and did not deny that he
was "living in polygamy, a violation of the act of Congress of 1862 mak-
ing it a crime," and in v^w of a bill which passed the House of Kepre-
sentatives in June, 1874 (Cong. Bee., p. 5046), but did not pass the Sen-
ate, providing that Delegates in Congress shall bo twenty-five years
old, seven years a citizen, and an inhabitant of such Territory, " and no
such person who is guilty of bigamy or polygamy shall be eligible to a
seat as such Delegate."

Accordingly, the governor cast aside the 18,568 votes given to Mr.
Cannon as void, and gave the certificate to Mr. Campbell on the strength
of his 1,357 votes.

While the governor undoubtedly acted in good faith and according to
the law as held by some respectable authorities, the better doctrine and
the one established by the precedents of Congress is otherwise, and he
was in error, having no authority of law for what he did in the respect
named. He doubtless followed Cushing's Law and Practice of Legisla-
tive Assemblies, pages 52, 66, 67, and the English rule, and some other
respectable authorities found in the decisions of the courts in some of
the States. It was the same doctrine under which recently, on the
advice of eminent lawyers, a person having the highest number of votes
for .overseer of Harvard College was set aside as ineligible, because he
lived out of the State, and the office given to the minority candidate.

The governor knew probably that a new House did not always at
least feel bound by the precedents of former Houses; just as the major-
ity of the committee now seem disposed to disregard the precedent of
Maxwell vs. Cannon, in the Forty -third Congress, and which has been
yielded to in three successive Congresses since.

Besides this, the governor exhibited his fairness and good faith by
giving a certificate, not absolute in form, but one which was perfecrly
consistent with the fact or assumption that some other person, not
deemed to be eligible, had more votes than Mr. Campbell.

We have before us no evidence as to the actual votes castor of their
legality, save what is found in the copies of the county returns made to
the secretary of the Territory set up in the notice of contest and ad-
mitted to have been made in the answer of the contestee.

These returns having been required to be made by the laws of Utah
(Compiled Stat, 1876 ; Stat. of 1878), and being in conformity thereto,
are competent evidence of the facts therein contained, and not being
controverted by other evidence offered by the coutestee, the facts ap-
pearing by the returns must be assumed as true for the purposes of this
contest, under Revised Statutes, section 121.

CANNON VS. CAMPBELL. 643

I do not regard the copy of the record of proceedings before the gov-
ernor as evidence only of what those proceedings were.

Under Revised Statutes, section 1844, the secretary was required to
keep a record of them, and he is the proper certifying officer. The facts
embraced in the records and papers certified are competent evidence
only so far as they throw light upon the action and ground of action of
the governor.

The certified copies of the returns, if required as evidence, made by
the secretary, in my judgment should have been put in proof before the
examiner who took the evidence, so that the contestee might have an
opportunity then and there to meet and control it if he desired. But
they stand on a footing different from that on which the copies of the
executive record rest. It becomes of no consequence now, however, in-
asmuch as the returns are before the committee on what may not inap-
propriately be called the pleadings.

I do not deny that the committee may, in their discretion, and when
it works no prejudice, admit and use such copies now, and concur in the
views of the chairman on that point, because tfce law regulating the pro-
ceedings in contested elections is not absolutely and conclusively bind-
ing on the House, except as a convenient mode of procedure which has
been adopted.

This is all I need to say upon the facts.

2. I agree in the main with the report of the chairman, wherein he
says, in substance, that it is clear that the clause of the Constitution
relative to elections, returns, and qualifications of members applies and
extends to Delegates, and that substantially the same qualifications
(unless it be as to age) are prescribed for both member and Delegate.

I would add to the concession the assertion that the rule of construc-
tion which has been established in regard to the Constitution relating
to members, to wit, that other qualifications cannot be added to those
specified, and none taken away, applies for the same reason to Dele-
gates, when the qualifications for them are prescribed and specified by
statute; also, what is undoubted law, that judging of the qualifications
comprehends only a determination of the question whether the member
or Delegate answers the qualifications prescribed as the conditions of
his eligibility.

The manifest intent of the Constitution was to fix certain things as
unalterable conditions of eligibility, and leave all else for the electors
to judge of and determine for themselves. Congress has shown the
same intention in statutes erecting Territorial governments, and giving
a right of qualified representation. So firmly has the House adhered
to this fundamental principle of a representative government that the
uniform rule of Congress has been not to entertain questions of alleged
bad personal character in judging of what are called " qualifications."
In exercising the right of expulsion even the established rule has been
not to expel for bad character or even crimes committed before the elec-
tion and known to the electors at the time. (McCrary, sees. 521, 2, 3.)
A few cases connected with the rebellion, and arising out of known dis-
loyalty, are exceptions, but they stand on different grounds. A Dele-
gate's power was so limited and circumscribed that some of the organic
acts did not even prescribe citizenship as a condition of eligibility, and
Congress held it to be implied, as in the Michigan case. (White's case,
Hall & Clark, p. 85.)

It follows that all this committee has to do on this point is to see
whether Mr. Cannon was eligible or had the prescribed qualifications.

3. It is sought to avoid the conclusion to which the doctrine of the

644 DIGEST OF ELECTION CASES.

last point leads, on what I consider most untenable and dangerous
grounds. They contravene fundamental principles of law, and a prac-
tice which has existed from the beginning of the Government.

Mr. Strong, in 1850, then on Election Committee of the House, since
an illustrious judge upon the bench of the United States Supreme Court,
has forcibly illustrated and stated that all admissions of Delegates to a
seat are by virtue of established laws, and not by grace or within the
discretion of the House. (See Smith's case, Messervy's case, Babbitt's
case, 1 Bartlett, pp. 109, 117, 16.) Showing that he has been admitted
only by right from the formation of the confederation down to the Con-
stitution, and since to this time.

It is said that a Delegate Is not named in the Constitution and is not
the creature of the same, while a member is, and that his admission to
a seat is ex gratia. The legal purport of the opposite contention, when
expressed in words, is: " It is incompetent for Congress and the Exec-
utive to impose on any future House the right of a Delegate to a seat";
" they (the acts) were persuasive only to the houses of future Con-
gresses " ; and, " in short, it may be said that Delegates sit in the lower
House by its grace and permission, and that it makes no difference
whether that permission is expressed in a statute or in a mere resolution
of the House. The House can disregard it and refuse to be bound by it,
because it affects (somewhat) the organization and membership of the
House alone."

It does not change the legal purport in my judgment, to say Congress
had no power to impose upon the House a Delegate u with defined qual-
ifications." I concede that powers could not be conferred upon a Dele-
gate which would infringe upon the constitutional rights of State rep-
resentation or those of a full member.

The gist of this doctrine is that a statute which the Constitution au-
thorizes Congress to make may be set aside and made null and void at
the pleasure of one branch of the law-making power.

If the Constitution authorizes Congress to enact the statutes relating
to the Territories, and give a Delegate, duly elected and returned, with
the requisite qualifications, a right to a seat and to debate, without a
right to yote, no power under heaven can rightfully deprive him of these
rights and privileges except Congress itself, by some other statute
passed by both Houses.

The doctrine must lead to this: That the statutes organizing the Ter-
ritories, with such powers and rights, are not authorized by the Consti-
tution, and are void, unless the House sees fit to observe them. But this
clause of the Constitution has been sanctioned and sustained as au-
thorizing such things too often to require any discussion of the sub-
ject.

How the sitting of a Delegate can be said to infringe upon any con-
stitutional rights of a member I fail to see. Nobody pretends that the
statute attempts to make him a member in the full sense of that term,
and he is not a creature of the Constitution in the exact sense of that
term, but he is a creature of a statute which that instrument author-
izes, and can subsist and enjoy his rights and privileges without infring-
ing upon the constitutional rights of a member, and that is enough to
sustain the statute as valid ; and, if so, it is not merely " persuasive "
on all future Houses, but absolutely binding on their consciences, and
must be obeyed. It can be disregarded only in the exercise of a power
without the right, as a sort of usurpation of authority.

The right of representation on the part of the Territory and of a
Delf irate to his seat has always been accorded as such, and not a.s a

CANNON VS. CAMPBELL. 645

grace or favor, save as the grace and favor of Congress, ami not of one
House alone. The doctrine contended for strikes at the very root of
the right of representation conferred, and commits the Delegate to the
discretion and caprice of the House, instead of the full law-making
power.

The organic law of a Territory takes the place of a constitution as the fundamental
law of the local government. It is obligatory on and binds the Territorial authori-
ties, but Congress is supreme, and for the purposes of this department of its govern-
mental authority has all the powers of the people of the United States, except such
as have been expressly or by implication reserved in the prohibitions of the Consti-
tution. * * *

It. may do for the Territories what the people under the Constitution of the United
States may do for the States. (Waite, Ch. J., in Bank v. County of Yankton, 101 U.
S , 133.)

It follows that Congress, and Congress alone, can give rights by stat-
ute law, adopting and applying, if they please, the principles of the
Constitution so far as they can be made applicable, and imposing like-
wise reciprocal obligations upon every other branch of the Government
and the people, so the rights conferred may be guaranteed and en-
forced.

The section 1891 of the Eevised Statutes extends over Territories the
laws and Constitution of the United States, except so far as locally in-
applicable, and this was designed to give a representative form of gov-
ernment and republican institutions to Territories, which were incipient
or prospective States, and give the Constitution effect as law, with re-
ciprocal rights and obligations.

A Delegate becomes in one sense a member, and yet not properly so
called. He is enough so to render applicable in spirit the law in re-
gard to contested elections, which in terms applies only to members
the clause of the Constitution which makes the House judges of the
qualifications, returns, &c., of the members, and the other one which
relates to the expulsion of members. (Maxwell v. Cannon, Forty-third
Congress.)

The analogy, if justified at all, must be carried and applied all
through, and such has been the uniform precedent and practice here-
tofore. The law should not be changed to meet the strain of a special
desire in an individual case.

The discussion in Maxwell vs. Cannon covers the whole subject mat-
ter, and I adopt its doctrine in the main.

I feel very clear that the organic act of Utah and the Revised Stat-
utes, including sections 1860, 1862, and 1863, are constitutional and valid
and as such binding upon the House as much as on anybody else.

Section 1862 reads: "Every Territory shall have the right to send a
Delegate to the House ot Representatives of the United States, to serve
during each Congress, who shall be elected by the voters in the Terri-
tory qualified to elect members of the legislative assembly thereof.
The person having the greatest number of votes shall be declared by
the governor duly elected, and a certificate shall be given accordingly.
Every such Delegate shall have a seat in the House of Representatives,
with the right of debating, but not of voting."

It is to be observed that the language is, "shall have a seat," &c., and
we may as well reject everything else as that.

4. It follows, in my judgment, that Mr. Cannon, being eligible and
duly elected and returned, makes out his legal right to a seat under the
statutes, and having found thus much his " final right" is determined, sub-
ject only to the right which the House has to expel him by a two-thirds
vote.

646 DIGEST OF ELECTION CASES.

The resolution of reference is not to determine which claimant has
the strongest case of favor or grace, but which has the u right," i. e.,
the legal right, and we must find this much only. If no legal right
whatever, then we can find that and say so only under this resolution.

5. The only objection urged is polygamy.

My position on that point is : It is not a disqualification affecting the
legal right, but concerns only the dignity of the House, and an investi-
gation into matters which concern that alone must be instituted in the
House, and cannot be started in a contest made by a contestant; for the
contest embraced and committed to the committee under chapters, p. 17
Revised Statutes, affects only the legal right. (Maxwell vs. Cannon,
adopted by McCrary, S. 528.)

The reason for it is apparent and sound, otherwise any outsider, or
pretender, or a real contestant, or contestee, may proceed to take evi-
dence of and spread upon the record any amount of scandal or any
charge affecting the moral character the private character of any
member of the House.

The House must alone proceed to vindicate its own dignity and char-
acter, and does not allow any one outside of it to start and take evi-
dence for them on that subject unless by special order. Such an inves-
tigation is usually referred to a special committee.

The principle involved is of more importance than the seating or un-
seating of any one member.

I agree with all that is in the report against polygamy, and in the
duty of Congress to obviate by law its evils, so far as is possible, but
let it be done by law, and not in violation of law.
If Mr. Cannon is eligible under existing law, and was duly elected
and returned, as we find, we give him Ms legal right to a seat because
the law (sec. 1862) says he shall have it.

We can then exercise our right and expel him under another inde-
pendent provision of the Constitution, upon a proceeding started and
conducted in the usual and the legal way. We have his admission,
put in under protest, and may act on that if sufficient and if he does
not demand a hearing. It is thus :

I, George Q. Cannon, contestant, protesting that the matter in this paper contained
is not relevant to the issue, do admit that I am a member of the Church of Jesus
Chri.st of Latter-day Saints, commonly called Mormons; that, in accordance with
the tenets of said church, I have taken plural wives, who now live with me, and have
so lived with me for a number of years, and borne me children. I also admit that in
my public addresses as a teacher of my religion in Utah Territory I have defended
Baid tenet of said church as being, in my belief, a revelation from God.

GEO Q. CANNON.

6. If it be true, however, that admission rests only on the grace of the
House, and lies in its discretion, I can see my way clear to admit Mr.
Campbell on the facts before us.

It could be urged in that event that the law as to contested election
does not apply in terms, and should not be extended to the present
case by analogy or otherwise. The contest as conducted outside can be
disregarded by the House, and the governor's certificate taken and
given effect to.

If the right of a Delegate rests in the discretion of the House and not
on positive statute and on binding obligations of law, I see the strongest
reason why we should exercise that discretion and extend the grace
allowed to Mr. Campbell and the non-Morraon people whom he evidently
represents. The object is to strike down Mormonism, and particularly
the institution of poly gamy, which is said to be practiced by 2,500 of the

CAXXOX VS. CAMPBELL. 647

about 70,000 Mormons in Utah. Mr. Cannon is said in the report of the
chairman to be personal lyunobjectiouable,independent of this polygamy
objection, for he says: "We desire to cast no imputation on the con-
testant personally, because in his deportment and conduct in all other
respects he is certainly the equal of any other person on this floor."
Mr. Campbell, on the contrary, is the representative sent by the non-Mor-
mon people.

But I cannot do this consistently with my views as hereinbefore
expressed. It has nothing- to do with the merits of this case that
the law ought to be otherwise. We must administer the statutes as they
are. Mr. Cannon has been elected and sent under the statutes as they
stand. He is entitled to the same salary and pay as full members
under other express acts of Congress (Rev. Stats., sees. 35-51), and an
exclusion results in legal effect in depriving him of that right, which is
clearly property, and cannot be taken away except by due process of
law, whatever may be said of the office being or not being property.

It is to be observed, further, that the House has repeatedly recog-
nized and sanctioned the law as I claim it to be. In 1874, it passed a
bill making polygamy a disqualification ; it did not pass the Senate.
Mr. Cannon, a then known polygamist, was admitted when he first was
elected, after objection and investigation. He was investigated, and
the House refused to expel him for this cause. He has served four terms
of Congress without further challenge until now. Dr. Berneishel, a
polygamist. was admitted and served ten years as a Delegate from Utah.
At this session a bill has passed the House, without a dissenting vote,
again making polygamy a disqualification. A bill has passed the Sen-
ate of like purport, among other things, and all that remains is to have
concurrent action on the same bill to enact a bill which shall govern
action in the future.

I do not deny the right of expulsion at the present term of Congress
if an investigation into the alleged grounds for it is,duly ordered and
made, and it is made to appear that Mr. Cannon is still violating and
putting at defiance the acts of Congress, and openly inciting others to
do so, and persisting in such a course of conduct. The House will
doubtless observe the clause of the Constitution insuring to every per-
son full religious freedom, and take cognizance only of illegal acts and
conduct within the rule of the Supreme Court as expounded in Reynolds
vs. The United States (98 U. S. Rep.), while all will probably agree
with what was so aptly said long since by Sir William Blackstone :

Pol-ygamy is a great violation of the public decency of a well-ordered state, and
can never be endured under any rational civil establishment, whatever specious rea-
sons may be given for it.

It ought, however, to be further observed that Congress, in passing
the organic act of Utah, did not provide anything against the institu-
tion and practice of polygamy, although it then existed, and did not do
so subsequently until 1862, when even then it only made it a crime for
a man having one wife living to marry another, and did not include the
continuance of polygamous relation under marriages already contracted
(Rev. Stat., sec. 5352.) As all polygamous marriages before the act of
1862 were in the nature of civil contracts, and not prohibited by any
laws in force in Utah (unless it is the moral law), it has never been de-
cided as yet that they were invalid, or that they could be made so, or a
crime, by any retroactive or ex post facto statute.

Unless Mr. Cannon is shown to have taken one of his four wives
since the act of 1862, he has therefore committed no crime under the
acts of Utah or the laws of the United States, which alone apply

648 DIGEST OF ELECTION CASES.

thereto as statute law. If continuing to live with wives which he had
married before that time is not a crime under existing laws, he is not
shown to have been guilty of any criminal offense, however much he has
offended against the laws of morality and the fundamental rules of the
civilized society of this country. The language of the written admission
of Mr. Cannon is not clear, and, without further proof, I have no right
to assume that he has married any one of his wives since the passage
of the act of 1862. Hence the importance of an investigation to get
proof of this fact, if deemed of legal weight. All else is a question of
morality.

Will the House, independent of the Senate, attempt to virtually outlaw
the whole Mormon population of Utah, and say they shall have no repre-
sentation of their own choice, in violation of the fundamental policy of
a republican form of government and of existing acts of Congress, or
join with the Senate in jiassing all salutary laws which may operate in
the future to regulate their action and correct, as far as possible, the
evils of the system f There are said to be only about 2,500 polygamists
out of a Mormon population of 75,000 or more. It is a serious ques-
tion of policy, as well as of alleged right. For one I prefer to ob-
serve good faith ourselves and execute the statutes as they are, and
then correct them so they may be more stringent and salutary for the
future, regretting only that it has not been done before.

No temporary passion should rule the hour, and, however high it may
rise, we should not allow its wave to sweep us from safe legal moorings,
or betray us, as legislators, into what is little else than a declaration of
war against a sect of so-called religionists, unless through the medium
of laws.

Resolution offered in committee by Mr. Ranney.

Resolved, That George Q. Cannon was duly elected and returned as
a Delegate for the Territory of Utah to a seat in the Forty-seventh
Congress.

Resolved, That the charges against the private and moral character
of George Q. Cannon, so far as proved in the record, do not involve or
embrace any legal disqualifications for the office of Delegate under ex-
isting statutes and laws, are not referred to the committee under the
resolution of the House, and that the offense thus presented be brought
to the attention of the House for their action.

VIEWS OF ME. G. ATHEETON.

On the question whether the practice of polygamy and a belief in the same is
a " disqualification" on the part of a JDelegate to a seat in the House of
Representatives.

I do not care to discuss the questions involved in this case on which
the committee substantially agree. They have been fully considered
and ably argued, and the committee (except a single member) unite in
the opinion that Cannon was legally elected, by a large majority, a Del-
egate from the Territory of Utah to the Forty-seventh Congress ; that
he was and is a naturalized citizen of the United States, and entitled to
his seat as a Delegate unless disqualified by the fact that he practices
and teaches the doctrines of polygamy.

CANNON VS. CAMPBELL. 649

QUESTION STATED BY THE MAJORITY.

As improperly stated by the majority, the question is, whether the
House will admit to a seat as a Delegate " one who practices and teaches
the doctrines of a plurality of wives in open violation of the statutes of
the United States and contrary to the judgment of the civilized world. 7

AN UNWARRANTED ASSUMPTION.

In order to construct an argument it is best to examine the truth of
the premises.

It is an assumption wholly unwarranted by the evidence in this case
that Cannon has committed any crime against the statutes of the United
States. It is said he admits he is a member of the Mormon Church,
and has taken plural wives who now live with him, and have for a num-
ber of years, and borne him children ; that he believes in the Mormon
religion, and defends its tenets as a revelation from God.

Admitting all this to be true, it shows the commission of no statutory
offense.

No act of Congress prior to the act of July 1, 1862, made bigamy a
crime in the Territories. Taking plural wives was not a crime at com-
mon law.

This act punished the contracting of a second marriage, and did not
and does not prohibit or punish cohabitation with plural wives at all.
There is no proof and no admission in this case that Cannon contracted
any marriage after the passage of the act of 1862. The presumption is
always in favor of innocence, and every element of crime is to be
proved. Therefore the arguments start out on a premise wholly desti-
tute of proof.

A CONSTITUTIONAL RIGHT.

As abhorrent as the doctrine may be to others, Cannon as an Ameri-
can citizen has the right to believe and teach the doctrine of a plurality
of wives as a revelation if he chooses to, and he is not to be punished
for it. Whether he is guilty of doctrines and practices " contrary to the
judgment of the civilized world" is not quite the question we are trying.
We are for the time being judges in this case not politicians or parti-
sans. We are charged to investigate and report whether Cannon, by
the law of the land, is entitled to a seat in this House. To properly de-
termine this question we must resort to the testimony in the case, the
law as drawn from reason and precedent, and turn a deaf ear to igno-
rant clamor.

FORMER PRACTICE OF THE HOUSE.

This House has heretofore admitted to a seat in its halls, when it had
both large Republican and large Democratic majorities, this same man.
The same Delegate from the same Territory under a similar state of facts r
and the House has not suffered from the contact.

THE REAL QUESTION AT ISSUE STATED.

Such being the deliberate practice of the House, upon full considera-
tion, the question recurs :

Should a Delegate duly elected, and having the qualifications of Rep-
resentatives of the people, be denied admission to a seat therein be-

650 DIGEST OF ELECTION CASES.

cause his teachings and practices involve what we deem moral turpi-
tude f In other words. Can the seat of a Delegate, who has not com-
mitted any statutory crime, be withheld from him on a charge involving
moral turpitude that in no way affects his qualifications as a member
of this House I

It is admitted. by fourteen members of the Committee on Elections,
and perhaps all, that if Cannon was a Representative elect from a Con-
gressional district in a sovereign State, or " a constitutional member,"
you could not deny him admission if he had been duly elected, duly re-
turned, and had the qualifications as to age, citizenship, and inhabit-
ancy required by the Constitution, upon any charge of moral disqualifi-
cation. And that if he was guilty of practices or even crimes not
involving his constitutional qualifications, the House could only free
itself from his presence by the exercise of the power of expulsion.

OBJECTION STATED.

But it is said a Delegate is not a constitutional member; his election
is not provided for by the fundamental law, and his powers and duties are
limited, and, being simply a creature of the statute, the Delegate sits by
the grace and permission of the lower House, and that the House may at
any time disregard the statute and deny the Delegate admission for
any reason satisfactory to itself, whether that reason involves such
qualifications as are prescribed by the Constitution or others of a dif-
ferent nature.

Does the result follow as claimed ! It is true the election of Delegates
was not provided for in the Constitution. But the First Congress of
the United States enacted a law for the admission of a Delegate, and he
was admitted thereunder, and Delegates have had seats in the House
ever since.

CAN THE HOUSE ANNUL AN ACT OF CONGRESS?

That statute and like statutes were enacted not by the House alone,
but by the Senate and House of Representatives, with the sanction of
the President of the United States by the law-making power of the
Government and have been in full force and effect ever since.

They confer on a Territory the right to have an agent and represent-
ative on the floor of the House to speak for his constituency, to advo-
cate measures for their relief and benefit, and to oppose all measures he
may deem against their interests. They give to the Delegate himself a
right to the emoluments and dignity of the office, and, being the law
of the land, these statutes bind the House as much as they do the hum-
blest citizen. They are subject to repeal, but while in force may not be
disobeyed ; and a Delegate, under the statute, cannot be arbitrarily de-
prived of his seat while the statute is in force and unrepealed, any
more than a Representative can who holds his place under the Consti-
tution.

It is an absolute non sequitur to say a Delegate may be denied admis-
sion because he is the creature of statute, while a Representative may
not who claims under the Constitution. The statutory right of the one
is entitled to the same consideration by the House as the constitutional
right of the other, so long as the statute remains in force.

QUALIFICATIONS OF DELEGATES.

Now, what qualifications do the statutes require of Delegates ?

CANNON VS CAMPBELL 651

When the Constitution was adopted it stipulated what should be the
qualifications of the members of the House. But one kiiid of members
were therein contemplated. These were the Representatives from States,
or of districts within the States. At the first Congress another kind of
member was created by statute one of limited powers, but a member,
nevertheless. He had a seat on the same floor, received the same com-
pensation, could propose and advocate, and, in fact, do anything a Rep-
resentative could do, except to vote and to move to reconsider. Thence-
forth the membership of the House consisted of two classes : Representa-
tives and Delegates. When this new species of membership was
authorized, they came in subject to that clause in the Constitution that
the House should be the judge of the elections, returns, and qualifi-
cations of its members, and also subject to the power of the House by a
two-thirds vote to expel a member ; and their qualifications as to age,
residence, and inhabitancy was that required of members. They were
members of the House with limited powers^ and must have like qualifi-
cations.

If that result does not follow from the statute creating the office of
Delegate and making a further membership in the House, it is to be ob-
served that Congress has extended the Constitution and statutes of the
United States over the Territories, except where locally inapplicable.
The Constitution becomes thereby a part of the organic statutory law
of the Territory, and extends the qualifications of the Representative to
the Delegate to be elected.

HOUSE HAS ONLY POWER OVER MEMBERS.

What power has the House to judge of the election, returns, or quali-
fications of a Delegate, if the latter is not a member of the House ?

What power have we to expel a Delegate for the grossest misconduct
or crime ?

You may look through the Constitution, statutes, rules of the House
and of the committee in vain to find a single provision to examine or
judge of the elections, returns, or qualifications of Delegates unless a
Delegate is a member.

Neither will you find any power of expulsion for any cause unless a
Delegate is a member.

Do you say the House has inherent power to protect itself, which in-
cludes the power of admission and expulsion ? I answer, only as to its
members, and if you deny the membership of Delegates, you abrogate
all power to judge of their elections, returns, or qualifications, or to
expel for misconduct.

The construction that the members of the House are composed of the
Representatives and Delegates elected thereto will not give the Dele-
gate a right to vote, as has been erroneously assumed. The statute
provides directly that they shall not vote, and as to that the Constitu-
tion made the organic statutory laws of the Territories is not applicable.

If a Delegate is not a member in the sense I have contended there is
no act of Congress authorizing a contest to be had touching his seat.

THE SEATS OF MEMBERS MAY BE CONTESTED.

The practice act provides what a contestant must do if he desires " to-
coutest the election of any member." See Revised Statutes, section 105
et seq. Its provisions relate simply to members. A Delegate is not men-
tioned in

Rule llth of the House provides that

652 DIGEST OF ELECTION CASES.

All proposed legislation shall be referred to the committes named in the preceding
rule, as follows :

Subjects relating:

Clause 1. To the election of members: to the Committee on Elections.

Clause 47. The following-named committees shall have leave to report at any time
on the matters herein stated, to wit :

The Committee on Elections, on the right of a member to a seat.

The Committee on Elections have no power to investigate the case of
Cannon vs. Campbell, the House no authority to adjudicate thereon, un-
less they claim to be members-elect of the House.

No rule of the House ever sent this case to a committee unless these
parties claim to be elected members.

A REPRESENTATIVE IS A MEMBER, BUT A MEMBER MAY NOT BE A

REPRESENTATIVE.

The difficulty results from a misconception of terms, in failing to dis-
tinguish between a Representative in the House and a member.

A Representative is a member, but a member may not be a Repre-
sentative in the technical sense of the term ; a Delegate is also a member.

A Representative is a member with full powers. A Delegate is a
member with limited powers. Both occupy seats, confer, consider, ad-
vocate, and propose, and form the membership of the House under the
Constitution and statutes of the land. Their seats are contested by the
same statutes aud under the same rules of procedure. Their elections,
returns, and qualifications are judged by the same standard, and they
are excluded from the House for cause alike by a two-thirds vote of the
voting membership.

This question, as before observed, is not an open one.

MAXWELL VS. CANNON IN FORTY-THIRD CONGRESS.

The exact question was determined in the Forty-third Congress in
the case of Maxwell vs. Cannon (Smith's Cout. El. Cases, p. 182).

Gerry W. Hazleton, on behalf of the Committee on Elections, sub-
mitted the principal report. As a precedent it [that case] is unreversed,
and until now unquestioned, and the reasoning on which it stands is
unassailable.

That report takes up the question of polygamy, and discusses the
proposition whether the fact that George Q. Cannon at and before the
election in question was openly living and cohabiting with four women
as his wives at Salt Lake City, and was still cohabiting with them, dis-
qualified him to represent that Territory as a Delegate.

The question of the jurisdiction of the committee is first raised, and
the committee determine that their jurisdiction is limited to the elec-
tions, returns, and qualifications of its members ; that the qualifica-
tions alluded to are age, citizenship, and residence, and that the uni-
form practice of the House limited the inquiry as to qualifications to
those pointed out in the Constitution itself.

The matter being conceded (so says Mr. Hazleton's report) that Can-
non had these qualifications, the query arose :

" Does the same rule apply in considering the case of a Delegate as
a member of the House ? "

It was shown that the act organizing the Territory of Utah extended
the law's and Constitution of tbe United States over that Territory so
far as the same were applicable ; and it was suggested that whether
the Constitution was technically extended as such over the Territory or

CANNON VS. CAMPuELL. 653

not, that certainly Congress could make the Constitution a part of the
statutory law of the Territory as much as any other portion of the organic
law thereof; that, having done so, the committee must fairly and justly
assume that by making the Constitution a part of the law of the Terri-
tory Congress intended to indicate that the qualifications of the Delegate
to be elected should be similar to those of a member. The House, how-
ever, went further than this report, which simply found that Cannon
had been duly elected and returned, and adopted a resolution, offered
by H. H. Harrison, declaring Cannon to have been duly elected and
returned, and entitled to a seat from the Territory of Utah.

THE EFFECT OF CRIME IN CONTESTED-ELECTION CASES.

The same rule as to the limits of the jurisdiction of the committee
and as to the result of crime imputed to a contestee, is laid down and
insisted on in a report made by Speaker Keifer in the case of Donnelly
vs. Washburn in the Forty-sixth Congress. In that case Washburn
was charged with bribery, and it was insisted that the charge was suc-
cessfully proved against him, and as a result of it that the bribed votes
were not merely to be deducted, but that the crime being fastened on
him worked a disqualification to the office that he had sought through
bribery. But the learned Speaker insisted it only excluded the bribed
votes, and that, even if guilty of bribery, that was not a constitutional
disqualification, and that bribery " does not vitiate when it does not im-
pregnate."

A WELL-CONSIDERED PRECEDENT SHOULD NOT BE LIGHTLY OVER-
TURNED.

If the settled law upon this subject is to be overturned, it ought to be
upon a very clear case and for reasons the most cogent.

The rule has heretofore been that when a person claiming to be a
member elect, whether Representative or Delegate, knocks at the door
of the House for admission, the questions asked are:

1. Was he duly elected ?

2. Was he duly returned ?

3. Has he the qualifications of age, citizenship, and inhabitancy re-
quired alike of the Representative by the Constitution or the Delegate
by Constitution and statute ? If the questions are answered in the
affirmative, he is awarded his seat, subject to the expulsion of the House
for misconduct or crime that would make him unworthy of the fellow-
ship of the House.

RULE AS TO QUALIFICATIONS OF REPRESENTATIVE AND DELEGATE
SHOULD BE THE SAME.

It is said the provisions of the Constitution are inapplicable to the
qualifications of a Delegate. Will some one tell us why I Does it not
furnish a good rule as to age, residence, and citizenship ? Can any per-
son give a good reason why a higher standard of morality should be
required for a Delegate, who can only speak and not vote, than for a
member, who can both speak and vote ?

Besides, a departure from the Constitutional rule lands us in a wide
ocean, without chart or compass, so that a Delegate shall hold his place,
not by a charter of right which each member is bound in conscience to

654 DIGEST OF ELECTION CASES.

obey, but his admission or rejection depends upon the undefined and
ever-changing moral test of the majority.

To day polygamy; to-morrow fornication or other breach of marital
duty may form it ; next vreek the gambler may be interdicted, and a
month later the drunkard ; infidelity may become the test, or some re-
ligion or tenet so different from our own that we feel it a crime against
the civilization of the nineteenth century. Either or all may stand
like flaming swords to protect the portals of the House against the
offending Delegate who seeks admission.

There is no despotism so intolerable as the despotism of an unbridled
majority, unrestrained by law.

RIGHT OF HOUSE TO REJECT AN ELECTED DELEGATE.

Why should the House refuse to receive a member or a Delegate
having the qualifications prescribed by both Houses of Congress f
Utah was admitted as a Territory by th concurrent action of the law-
making power of the nation. She was given qualified representation
on the floor of the House by like action of Congress. Has this House
any legal right to annul the legislation giving to Utah an agent on the
floor of the House any more than it has to annul the legislation admit-
ting the Territory ? And if not, has the House any legal right to keep
out any agent the Territory may elect and return that has the qualifi-
cations of the Constitution made by Congress a part of the organic law
of that Territory f-

CERTAIN CONSTITUTIONAL PROVISIONS CONSIDERED.

And in this connection I am not here denying the right of the House
to protect itself against men who from moral turpitude are unworthy
of a seat in its halls. And that brings me to consider for a moment
the proper construction to be given to the two clauses of the Constitu-
tion one providing that the House shall be the judge of the election
returns and qualifications of members, and the other clause enabling
the House to expel a member by a two-thirds vote.

When a member presents his credentials and claims to be a member
elect, the House exercises the exclusive jurisdiction granted by the first
clause, and inquires is he duly elected? which is determined by ascer-
taining whether he secured a majority or plurality of votes. Is he duly
returned ? This is answered by examining the regularity of his creden-
tials; and has he the constitutional qualifications? which is answered
by inquiring, was he a citizen, was his age as required by the Constitu-
tion, and did he reside in the Territory he proposes to represent? After
making these inquiries and finding all the facts in his favor and accord-
ing to the constitutional requirements, the House cannot lawfully go on
to inquire into his religion, morals, or even his crimes. He first takes his
seat, and then he becomes subject to the expulsion of the House for crime,
even a crime as undefined as one against the civilization of the nine-
teenth century. But another rule here obtains. When you charge a
man with such tenets, principles, practices, and crimes as you assume
makes him unworthy of a place in the membership of the House, you
must convince two thirds of the voting membership of the existence of
an adequate reason for expulsion. This forms a protection against the
unbridled power of a mere majority. If a crime of dark turpitude is
clearly proved against a member, two thirds can easily be found who
will unite to drive him from the seat he has dishonored, but not so of a
doubtful case or accusation.

CANNON VS. CAMPBELL. 655

This construction gives the proper effect to the two clauses of the
Constitution, and are applicable alike to Representatives and Delegates.
I conclude, therefore, that Cannon is entitled to a seat on the floor of
the House; and it is a question for the determination of the House, and
not of this committee, whether he should hereafter be expelled for the
practice of polygamy or other alleged crime or misconduct on his part.
That question is not now for this committee. It need not be determined
till reached.

The House has the power and technical right, at least, to expel Cannon
for the practice of bigamy by a two-thirds vote. It can do so without
the violent and revolutionary assumption of power that is now neces-
sary to deny him the seat, and without furnishing a precedent that will
invite every disappointed contestant to attack the moral character of
his adversary and scatter slander on < very wind through the medium
and machinery of a contest, real or pretended. Look well to the conse-
quences before such a practice is invited.

MINORITY REPORT.

In the matter of George Q. Cannon, contestant, vs. Allen G. Camp-
bell, contestee, from the Territory of Utah, and reierred to the Commit-
tee on Elections of the Forty-seventh Congress, the said committee
have had the same under consideration, and the undersigned, a part of
said committee, make the following report, as expressing their views
upon the matter submitted :

The Revised Statutes of the United States contain the following pro-
vision :

SEC. 18(52. Every Territory shall have a right to send a Delegate to the House of
Representatives of the United States, to serve during each Congress, who shall be
elected by the voters in the Territor y qualified to elect members of the legislative
assembly thereof. The person having the greatest number of votes shall be declared
by the governor duly elected, and a certificate shall be given accordingly. Every
such Delegate shall have a seat in the House of Representatives, with the right of
debating, but not of voting.

Section 1844 of the Revised Statutes expressly requires "a record to
be made" of all proceedings of the executive as follows:

The secretary shall record and preserve all laws and proceedings of the legislative
assembly, and all the acts and proceedings of the governor in the executive depart-
ment.

The Territorial law of Utah provides as follows :

SEC. 21. The clerk of the county court shall also, as soon as possible after the result
of the election has been so determined, make out a general abstract thereof in tripli-
cate, and certify to the correctness thereof, one of which he shall post up in his office,,
and forward to the secretary of the Territory a certified copy of the names of the per-
sons voted for and the number of votes each has received for Territorial offices.

SEC. 22. As soon as all the returns are received by the secretary of the Territory he
shall, in the presence of the governor, unseal and canvass the same, and make an ab-
stract thereof, and the secretary shall within ten days thereafter, make out and trans-
mit a certificate of election to each member of the legislature and Territorial officera
elect.

In pursuance of these laws an election for Delegate of the Territory
of Utah was held on the second Tuesday of November, 1880, and returns
were made to the governor by the proper returning officer.

The votes or returns were canvassed in the presence of the governor
and secretary, and thereupon the governor made the folio wing decision :

656 DIGEST OF ELECTION CASES.

DECISION" OF THE GOVEKNOR.

Oil the 14th day of December, 1880, the secretary of the Territory, in my presence,
opened the returns received by mail of an election for Delegate of the Territory of
Utah in the Forty-seventh Congress, held on the Tuesday after the first Monday of
November, of said year.

The returns show that George Q. Cannon received 18,568 votes, and Allen G. Camp-
bell received 1,357 votes. At that time notice of protest by Allen G. Campbell was
given, which protest was afterwards filed, objecting to a certificate being issued to
Mr. Cannon.

In addition to this statement of the governor, the answer of Campbell
admits, and the other facts in the case show, that Cannon received
18,568 votes, and Campbell received 1,357 votes.

On this statement Cannon would be entitled to his seat unless it is
shown that he is disqualified under the Constitution and the laws.

Mr. Cannon, in his notice of contest, makes this allegation among
others, viz:

1. That the returns of the election of Delegate to the Forty-seventh Congress of the
United States, held on the 2d day of November, 1880, in the several counties of the
Territory of Utah, which were prepared and forwarded to the secretary of the Terri-
tory, under sections 23 and 24 of the compiled laws of the Territory of Utah, copies of
which returns, marked respectively A, B, C, D, &c,, are hereto annexed showing,
as the fact was, that 18,568 votes were legally cast for me at said election, that only
1,357 votes were cast for you, and that only 8 votes were cast for all other candidates,
and that I was therefore legally elected to said office of Delegate from the Territory
of Utah in the Forty-seventh Congress, and was also entitled to receive the certificate
of election, and to be enrolled and sworn as such Delegate.

This specification embraces the averments: (1) that the county returns for the sev-
eral counties of the Territory were prepared and forwarded to the secretary according
to law ; (2) that copies of the returns were annexed to the notice of contest.

Now, what is Mr. Campbell's answer to this branch of the notice of contest (page
32 of the Record)?

"1. I admit that returns of the election of Delegate to the Forty-seventh Congress
of the United States, held on the 2d day of November, 1881, in the several counties of
the Territory of Utah, were made to the secretary of said Territory, of which copies
are annexed to your notice and referred to therein as marked respectively A, B, C, D, $-c.,
but I deny that said returns showed, or that the fact was, that 18,568 votes were
legally cast for you at said election, or that you were legally or otherwise elected to
said office of Delegate from the Territory of Utah in the Forty-seventh Congress, or
entitled to receive the certificate of election, or to be enrolled, sworn, or otherwise in
any manner recognized as such Delegate."

The admissions of Campbell by his answer, among other things, are that the county
returns for the several counties of the Territory were made to the secretary, and that
copies of those returns were annexed to the notice of contest, and particularly speci-
fying them as Exhibits A, B, C, D, &c.

This is conclusive on tbe question of the state of the vote and dispenses with proof
of that fact, and especially so if you apply the rule that a pleading is to be taken
most strongly against the party pleading.

The exhibits referred to are set out in full in the record, and show the
entire vote of the Territory by precincts and counties, and fully verify
the statements of Mr. Cannou.

There is no proof or attempted proof to show that contestant did not
receive the votes claimed by him, or that said votes were illegal. This
fact, then, may be regarded as settled and beyond dispute.

The other grounds for disputing his seat are, first, that he was and is
an unnaturalized alien ; and, secondly, that he is a polygamist.

The question of naturalization, we think, is settled by the record and
proof in the case beyond all doubt.

Upon this question we adopt the conclusions of the contestant, Mr.
Cannon, as a fair statement of the facts, which are fully supported by
the record, and are, in fact, a substantial transcript of it.

CAXXOX VS. CAMPBELL. 657

NATURALIZATION.

The following ar ethe statutory provisions under which Mr. Cannon was natural-
ized:

"Any alien, being a free white person, may be admitted to become a citizen of the
United States, or any of them, on the following conditions, and not otherwise :

"First. That he shall have declared, on oath or affirmation, before the supreme,
superior, district, or circuit court of some one of the States, or of the Territorial dis-
tricts of the United States, or a circuit court or district court of the United States,
three years at least before his admission, that it was, bona fide, his intention to be-
come a citizen of the United States, and to renounce forever all allegiance and fidel-
ity to any foreign prince, potentate, 'state, or sovereignty whatever, and particularly,
by name, the prince, potentate, state, or sovereignty whereof such alien may, at the
time, be a citizen or subject.

1 ' Secondly. That he shall at the time of his application to be admitted, declare, on oath
or affirmation, before some one of the courts aforesaid, that he will support the Consti-
tution of the United States, and that he doth absolutely and entirely renounce and
abjure all allegiance and fidelity to every foreign prince, potentate, state, or sov-
ereignty -whatever, and particularly, by name, the prince, potentate, state, or sov-
eignty whereof he was before a citizen or subject ; which proceedings shall be re-
corded by the clerk of the court.

" Thirdly. That the court, admitting such alien, shall be satisfied that he has resided
within the United States five years at least, and within the State or Territory, where
such court is at the time held, cue year at least ; and it shall further appear to their
satisfaction that during that time he has behaved as a man of good moral character,
attached to the principles of the Constitution of the United States, and well disposed
to the good order and happiness of the same, provided that the oath of the applicant
shall, in no case, be allowed to prove his residence." (2 Stat., 153.)

"Any alien, being a free white person and a minor, under the age of twenty-one
years, who shall have resided in the United States three years next preceding his
arriving at the age of twenty-one years, and who shall have continued to reside therein
to the time he may make application to be admitted a citizen thereof, may, after he
has arrived at the* age of twenty-one years, and after he shall have resided five years
withiu the United States, including the three years of his minority, be admitted a
citizen of the United States, without having made the declaration required in the
first condition of the first section of the act to which this is in addition, three years
previous to his admission ; provided such alien shall make the declaration required
therein at the time of his or her admission ; and shall further declare, on oath, and
prove to the satisfaction of the court, that for three years next preceding it has been
the bona fide intention of siich alien to become a citizen of the United States, and shall,
in all other respects, comply with the laws in regard to naturalization." (4 Stat., 69. )

The last paragraph was enacted May 26, 1824 ; the others, April 14, 1802.

The record of the court is in these words :

United States first district court for the Territory of Utah.

u UNITED STATES OF AMERICA,

" Territory of Utah, Great Salt Lake County, ss :

" Be it remembered that on the seventh day of December, A. D. 1354, George Q.
Cannon, a subject of Queen Victoria, made application, and satisfied the court that he
came to reside in the United States before he was eighteen years of age, and there-
upon the said George Q. Cannon appeared in open court and was sworn in due form of
law, and on his oath did say that for three years last past it has been his bona fide
intention to become a citizen of the United States, and to renounce and abjure, for-
ever, all allegiance and fidelity to every foreign prince, potentate, state, and sov-
ereignty whatever. And thereupon, the court being satisfied by the oaths of Joseph
Cain and Elias Smith, two citizens of the United States, that the said George Q. Can-
non for one year last past has resided in this Territory, and for four years previous
thereto he resided in the United States ; that during that time he has behaved as a
man of good moral character ; that he is attached to the principles of the Constitu-
tion of the United States, and well disposed to the good order of the inhabitants
thereof, admitted him to be a citizen of the same ; and thereupon the said George Q.
Cannon was in due form of law sworn to support the Constitution of the United
States, and absolutely and entirely to renounce and abjure, forever, all allegiance and
fidelity to every foreign prince, potentate, state, and sovereignty whatever, and par-
ticularly to Victoria, Queen of Great Britain and Ireland, whose subject he hereto-
fore has been.

" In testimony whereof I have hereunto subscribed my name and affixed the seal of

H. Mis. 35 42

658 DIGEST OF ELECTION CASES.

said court, this seventh day of December, one thousand eight hundred and fifty-four,,
and of the Independence of the United States the seventy-ninth.

"[L. 8.] W. I. APPLEBY,

Clerk."

The certificate of naturalization granted to Mr. Cannon is ill the same form, with
tfce exception that instead of the words " Queen Victoria," which appear in the second
line of the record, the words " Victoria, Queen of Great Britain and Ireland," are
nsed in the certificate. The certificate bears the seal of the first district court of
Utah. The record does not.

The doctrine that the judgment of naturalization is conclusive on the question of
residence, as upon all similar preliminary questions, is not only clear upon principle,
but is well settled by the authorities, from which, to avoid repetition, full citations
will be made at this point for use on other questions as well as that now under con-
sideration.

In the case of Campbell v. Gordon, 6 Cranch, 176, the Supreme Court of the United
States held as follows :

"In support of the first objection it is contended that, although the oath prescribed
by the second section of the act of Congress entitled 'An act to establish a uniform
rule of naturalization, and to repeal the act heretofore passed on that subject,' passed
the 29th of January, 1795, was administered to the said William Currie, by a court
of competent jurisdiction, still it does not appear by the certificate granted to him by
the court, and appearing in the record, that he was by the judgment of the court,
admitted a citizen, or that the court was satisfied that during the term of two years,
mentioned in the same section, he had behaved as a man of good moral character, at-
tached to the Constitution of the United States, and well disposed to the good order
and happiness of the same.

' ' It is true that this requisite to his admission is not stated in the certificate ; but it
is the opinion of this court, that the court of Suffolk must have been satisfied as to
the character of the applicant, or otherwise a certificate, that the oath prescribed by
law had been taken, would not have been granted.

" It is unnecessary to decide whether, in the order of time, this satisfaction, as to
the character of the applicant, must be first given, or whether it may not be required
after the oath is administered, and, if not then given, whether a certificate of natural-
ization must not be withheld. But if the oath be administered, and nothing appears
to the contrary, it may be presumed, that the court before whom the oath was taken,
was satisfied as to the character of the applicant. The oath, when taken, confers
upon him the rights of a citizen, and amounts to a judgment of the court for his ad-
mission to those rights. It is, therefore, the unanimous opinion of the court that
William Currie was duly naturalized."

The certificate of naturalization, granted to Currie, and the record thereof, remain-
ing in the clerk's office, were both in the following words :

"At a district court held at Suffolk, October the 14th, 1795, William Currie, late of
Scotland, merchant, who hath immigrated into this commonwealth, this day, in open
court, in order to entitle himself to the rights and privileges of a citizen, made oath
that, for two years last past, he hath resided in and under the jurisdiction of the
United States, and for one year, within this commonwealth, and also that he will
support the Constitution of the United States, and absolutely and entirely renounce
and abjure all allegiance and fidelity to any foreign prince, or other state, whatso-
ever, particularly to the King of Great Britain.

"A copy. Teste :

"JOHN C. LITTLEPAGE."

In this case, an authenticated copy of the record of which is filed with the commit"
tee, the Supreme Court of the United States established the following doctrines :

1. The grant of a certificate of naturalization, showing that the oath of citizenship
prescribed by law was taken, is conclusive proof that such oath was taken.

2. The grant of such a certificate is conclusive proof that the court was satisfied
that the applicant had, during the period mentioned in the statute, behaved as a man
of good moral character, attached to the principles of the Constitution of the United
States, and well disposed to the good order and happiness of the same.

3. The oath, when taken, confers upon the applicant the rights of a citizen, and
amounts to a judgment of the court for his admission to those rights.

4. The fact that the record of naturalization remaining in the clerk's office does not
expressly show that the applicant was admitted to citizenship, does not impair the
conclusive effect of the certificate granted.

5. The fact that such record does not expressly show that any proof was made or
adjudication had upon the question of good character, or of attachment to the prin-
ciples of the Constitution, or of devotion to the welfare of the country, does not im-
pair the conclusive effect of the certificate granted.

CANNON VS. CAMPBELL. 659

This doctrine of the collusiveness of the certificate of naturalization is supported
by the most cogent reasons. Applicants for naturalization in the United States are
not generally -well informed respecting our laws or the methods of our courts. If
irregularity or error should creep into the record not one applicant in one hundred
would be able to detect it, even if he had, as he has not, the right enjoyed in onlinHry
proceedings inter paries to be heard on the form of the recorder the mode of its entry.
He takes the certificate which the court gives him, and, in the faith that he is a citi-
zen of the United States thenceforth through life, performs acts which, if his natu-
ralization is invalid, are crimes, makes oaths which are unauthorized or false, bar-
gains which are ruinous to others or to himself; exercises without right the functions
of the juror in cases involving property, liberty, and even life; and holds offices in
which he is a mere usurping interloper. The calamities to which the great body of
our naturalized immigrants would be exposed if the validity of their naturalization
should be made to depend upon the accuracy or regularity of the official work of
clerks of courts would only be equaled by those to which other citizens would be
subjected by the blameless but unlawful acts of men who, though citizens by repu-
tation, were only foreigners in law.

Jn re Coleman, 15 Blatchf., 406, the court said :

" The main question discussed on the hearing of the writ was whether the certifi-
cate of citizenship which Coleman used was unlawfully issued. It was contended
by the attorney for the United States that the certificate was unlawfully issued, be-
cause there was no matter of record in the superior court on which to found it ; and
that what has been found in and produced from the books and files of that court does
not constitute a record of the naturalization of Coleman. * * *

" It is hardly to be supposed that Congress intended to make the applicant for citi-
zenship responsible for a non-compliance with any other conditions than such as he
had the power to comply with. The applicant can declare his intention, and can take
the prescribed oath and make the renunciation. But he cannot see to it that the pro-
ceedings and renunciation are recorded. He can produce a witness as to his residence
and character, and can appear, in person, in the proper court, and be sworn there in
open court, with his witness as to the matters prescribed in the statute. When this
is done, he can do nothing more, except to receive such a certificate from the court as
that which Coleman received from the court a certificate which sets forth that it is
given by the court, under its seal ; that Coleman appeared in the court, on a day
named, and applied to it to become a citizen, and produced to it such evidence and
made such declaration and renunciation, and took such oaths as are required by the
acts of Congress on the subject ; and that, thereupon, the court ordered that he be ad-
mitted, and he was accordingly admitted by the court, to be a citizen of the United
States. When he has done what the certificate says he has done, and when he leaves
with the clerk of the court such papers as he has signed, and when the court tells him,
as it does by the certificate, that, he having done all that, the court had thereupon
ordered that he be admitted to be a citizen, and when the court gives the certificate
into his keeping, he has done all he can to comply with the statute. *

" As said before, there must be an act of admission by the court. But the court has
a right to say what it will regard as its order that the applicant be admitted, and
what it will regard as his admission. Whatever the court says is its act of admission,
and whatever the court says is its order of admission, is such act and such order, when-
ever the question is brought up in a collateral proceeding, provided there is sufficient
to reasonably amount to such act and such order. Here the superior court has said
to Coleman by the certificate that he has complied with all the requirements of the
statute, and that it has made an order thereupon that he be admitted to be a citizen,
and that it has admitted him to be a citizen. * * *

" The fact that there is no record in the court of any order directing the establish-
ment and keeping of the volumes containing entries of naturalizations between 1858
and 1874 is of no consequence. The very keeping of them for so long a period is
equivalent to an order that they be kept, and the absence of any order or practice,
during that period, as to any other form of order of admission or record of admission,
shows that what was kept and done is to be regarded as a record and as the record."

In Spratt r. Spratt (4 Pet., 393), the court held as follows :

"As James Spratt arrived within the United States after the passage of the act of
1802, he is embraced by the second section of that act, and was under the necessity of
reporting himself to the clerk, as that section requires. Must this report be made five
years before he can be admitted as a citizen f

" The law does not in terms require it. The third condition of the first section pro-
vides that the court admitting such alien shall be satisfied that he has resided within
the United States five years at least, but does not prescribe the testimony which shall
be satisfactory. This section was in force when James Spratt was admitted to be-
come a citizen, and was applicable to his case. But the second section requires, in
addition, that he shall report himself in the manner prescribed by that section; and
requires that such report shall be exhibited 'on his application to be naturalized, as

660 DIGEST OF ELECTION CASES.

evidence of the time of his arrival within the United States.' The law does not say
that this report shall be the sole evidence, nor does it require that the alien shall re-
port himself within any limited time after his arrival. Five years may intervene
between his arrival and report, and yet the report will be valid. The report is un-
doubtedly conclusive evidence of the arrival, and must be so received by the court,
but if the law intended to make it the only admissible evidence, and to exclude the
proof which had been held sufficient, that intention ought to have been expressed.
Yet the inference is very strong from the language of the act, that the time of the
arrival must be proved by this report, and that a court about to admit an alien to the
rights of citizenship, ought to require its production.

"But is it anything more than evidence which ought indeed to be required to sat-
isfy the judgment of the court, but the want of which cannot annul that judgment f
The judgment has been rendered in a form which is unexceptionable. Can we look
behind it, and inquire on what testimony it was produced f

"The act does not require that the report shall be mentioned in the judgment of
the court, or shall form a part of the certificate of citizenship. The judgment and cer-
tificate are valid, though they do not allude to it. This furnishes reason for the opin-
ion that the act directed this report as evidence for the court, but did not mean that
the act of admitting the alien to become a citizen should be subject to revision at all
times afterwards, and to be declared a nullity if the report of arrival should not have
been made five years previous to such admission. * * * The various acts upon the
subject submit the decision on the right of aliens to admission as citizens to courts of
record. They are to receive testimony, to compare it with the law, and to judge on
both law and fact. This judgment is entered on record as the judgment of the court.
It seems to us, if it be in legal form, to close all inquiry, and, like every other judg-
ment, to be complete evidence of its own validity."

In Ritchie r. Putnam (13 Wend., 524) the court said :

" It need not appear by the record that all the preliminary requisites to a naturali-
zation were complied with. The judgment of the court admitting the alien to become
a citizen is conclusive evidence upon that point."

In McCarthy v. Marsh (1 Seld., 263) the court held:

" The second question is whether the respondent was lawfully admitted a citizen of
the United States by the court of common pleas of Saratoga County at the August
term thereof, 1834, and this resolves itself into a question of evidence.

"The respondent produced the record of his admission, which was in due form and
according to law. The appellants claimed that this was not sufficient, and that the
respondent was bound to go farther, and prove that he had in due form of law, more
than two years before his admission, declared his intention to become a citizen of the
United States, insisting that such declaration was a condition precedent, with which
the respondent must show he had complied ; and the appellants further claimed that
notwithstanding it was stated in the record that it appeared to the court that the
respondent had more than two years before declared in due form of law his inten-
tion to become a citizen, yet that fact was open to inquiry, and they proceeded to
five proof rendering it somewhat doubtful whether the respondent ever had declared
is intention in due form of law.

" The simple question then is, whether the record is conclusive evidence of the fact
that a prior declaration of intention was made in due form of law. The weight of au-
thority is decidedly in the affirmative. (Authorities cited.)

" These authorities accord with the general principle that a record of the proceed-
ings and judgment of a court of competent jurisdiction is conclusive evidence of the
facts appearing therein. All courts look with favor upon proceedings to admit aliens
to citizenship, and it is just that they should ; for the want of acquaintance with our
laws and judicial proceedings, the unsettledness of their residences in general for some
years, and the consequent liability to lose their documents and papers, should shield
them from technical and sharp objections to their naturalization papers whenever
there appears to have been an honest intention to become a citizen and comply with
the laws of our country."

In Priest v. Cummings (16 Wend., 616) the court said :

"As to the second objection, the act requires that the court shall be satisfied that
the applicant sustains a good moral character, &c. , in addition to his residence ; but
it does not prescribe the kind of testimony to be received, except that his own oath
shall not be taken to prove his residence. Beyond this, the species and amount of
proof rest entirely in the discretion of the court."

In State v. Penny (10 Ark., 616) the attorney-general took this position:

"The judgment of the court admitting him as a citizen is not conclusive, and the
regularity of the proceedings may be inquired into."

In reply the attorney for the defendant said :

" It is well settled that the judgment of the court admitting the alien to become a
citizen is conclusive proof that the prerequisites of the law have been complied with,
and it need not appear by the record of naturalization."

CANNON VS. CAMPBELL. 661

The court held :

" Until reversed, the judgment rendered, as shown by the transcript, is conclusive
of its own validity, and closes the door behind it to all inquiry."

There were some other statements made by Contestee Campbell re-
lating to other matters connected with Mr. Cannon's naturalization, but
they were of so frivolous a character that no further consideration of
them is deemed necessary.

We think the judgment of naturalization and the certificate issued
thereon is conclusive.

POLYGAMY.

The grave and important question as to whether polygamy is a dis-
qualification for the office of Delegate from the Territories we think is
settled by the Constitution, the laws, and the uniform practice of the
Government since its formation, now nearly one hundred years.

As to who shall hold seats in Congress, there are two distinct provis-
ions of the Constitution :

Section 5, Article I of the Constitution is as follows :

Each House shall be the judge of the elections, returns, and qualifications of its
own members; and a majority of each shall constitute a quorum to do business. * * *

This provision in its operation requires only a majority vote.

Such has been the general practice of the House.

The other provision is, " Each House may determine the rules of its
proceedings, punish its members for disorderly behavior, and, with the
concurrence of two-thirds, expel a member." (Second clause, section 5,
Article I.)

The qualifications of Representatives are prescribed by the second
section of the first article of the Constitution : They shall be twenty-
five years of age, seven years a citizen of the United States, and, when
elected, be inhabitants of the State in which they shall be chosen.

This committee is to report upon " the prima facie right or the final
right of the claimants to the seat as the committee shall deem proper."

It must be conceded, as we have seen, that Cannon has an over-
whelming majority of the votes cast for Delegate to Congress.

We think, also, it must be conceded, from the facts evidenced in the
case by the record, that Cannon possesses the Constitutional qualifica-
tions prescribed by second section of Article I of the Constitution.

Mr. Cannon, at the time of his election, was over twenty-five years of
age, had been seven years a citizen of the United States, and was an
inhabitant of the Territory in which he was chosen. These are the only
qualifications to be considered.

There is no power, State or Federal, under the Constitution by which
these qualifications can be changed, enlarged, or modified in any man-
ner.

The authorities upon this question are all one way.

In the report of the Committee on Elections of the House in the Forty-
third Congress, in the case of Maxwell against Cannon, and upon this
point, the committee say :

The practice of the House has been so uniform and seems so entirely in harmony
with the letter of the Constitution that the committee can but regard the jurisdic-
tional question as a bar to the consideration of qualifications other than those above
specified.

This is the rule we think should be applied to the case before the
House.

The following are some of the authorities on this point : Story on the

662 . DIGEST OF ELECTION CASES.

Constitution, sections 625-627 ; the contested-election cases of Fouk vs.
Trumbull and Turuey vs. Marshall from the State of Illinois (1 Bartlett,
168 ; McCrary, Election Laws, sections 227, 228, 252 ; Donnelly vs. Wash-
burn, Forty-sixth Congress ; the case of Wittemore in Forty-first Con-
gress ; the case of Matteson in the Thirty-fifth Congress ; the case of
Benjamin G. Harris, are all in point.

But it is said that it may be conceded that the rule above stated as to
the power of the House relating to members is correct, but that a Dele-
gate from the Territories is not a constitutional officer, and does not as
to qualification stand upon the same ground as a member from a State,
and that the constitutional provision does not apply to a Delegate ; that
he is a nondescript, and has no right and can claim no protection under
the Constitution.

So far as our research has extended since the formation of the Gov-
ernment we can find no case reported that makes any distinction between
the qualifications of a member from a State and a Delegate from the
Territory.

Whenever that question has arisen the rule as to qualifications has
been the constitutional provision, and this has been applied to the Dele-
gates from the Territories. The case of James White, decided in 1794,
is not an exception.

It may be that in express terms the Constitution does not apply to
Territories; but the spirit and reason of the Constitution does apply
and establishes a proper standard.

If the constitutional standard is not adopted as to qualifications, then
there is no rule for the government of the House as to Delegates.

The House at this session may establish one rule, and the next ses-
sion may revoke or establish another and different one, and the right of
a Delegate would be wholly uncertain.

There are laws that have been passed by Congress touching this sub-
ject that give color to the views we present. These laws show that a
Delegate, except as to a vote in the House, is put upon the same footing
as a member from a State.

Besides, there has always been the same practice from the formation
of the Government as to Delegates and members by referring their cases
to the Committee on Elections, both being treated alike in this respect.

The time, manner, and places of elections of members of Congress,
including Delegates from the Territories, are prescribed and made the
same by 14 TJ. S. Stat., sections 25, 26, and 27.

By section 30, Revised Statutes, the oath of office of members of Con-
gress and Delegates from the Territories is prescribed, and is the same
for a Delegate as a member.

It is important to remark that this statute was passed June 1, 1789,
and has ever since been the law.

Section 35, Eevised Statutes, provides that members and Delegates
are to be paid the same salary.

Section 51 provides that vacancies in the case of Delegates are to be
filled in the same way as in case of members.

The organic law for Utah, September, 1850, provides :

That the Constitution and laws of the United States are hereby extended over and
declared to be in force in said Territory of Utah, so far as the same or any provision
thereof may be applicable.

This is a law of Congress passed by virtue of the Constitution, and is
binding on Congress until repealed.

Now, why is the provision of the Constitution relating to qualification
of members not applicable to the Territories I What reason can be given

CANNON VS. CAMPBELL. 663

why it should not apply? What better standard for qualification can
be made ?

The adoption of the rule establishes uniformity and certainty, the
operation is salutary, and its adoption since the formation of the Gov-
ernment demonstrates its advantages and necessity.

The argument is made that a Delegate is not a constitutional officer,
and, therefore, not a member of the House in the sense of the Constitu-
tion, and that the House may seat or unseat a Delegate at will.

We believe this is the first time since the formation of the Govern-
ment that this argument has been advanced.

If a Delegate from a Territory is not a member by virtue of the Con-
stitution and laws, then what rule or law do you apply to him! Is it
the arbitrary will or caprice of the House at each session ?

If, as is said, a Delegate is not a member, certainly you cannot in-
voke any provision of the Constitution as to qualification or expulsion.

The constitutional rule wholly fails upon this theory.

It would follow from this view that the constitutional right of the
House to judge of the election, returns, and qualifications of its mem-
bers does not apply to Delegates, and therefore the House is without
constitutional power in the premises, and that whatever power the
House possesses as to Delegates, it must be derived from some other
source.

The extraordinary and dangerous doctrine is advanced by the majority
of the committee

That the Delegates sit in the lower House by its grace and permission, and it makes
no difference whether that permission is expressed in a statute or mere resolution of
the House.

The House can at any time disregard it and refuse to be bound by it.

It [Congress] cannot affix a qualification by law for a Delegate and bind any House
except the one assenting thereto. Congress cannot bind the House by any law as to
the qualification of a Delegate.

Our opinion is that it is competent for Congress, by a proper statute,
to provide for the election in the Territories of Delegates to Congress,
under Article IV, section 3, clause 2 :

The Congress shall have power to dispose of and make all needful rules and regu-
lations respecting the territory or other property belonging to the United States.

It has been decided under this article of the Constitution a great
many times that it gives Congress the right to legislate for the Terri-
tories, and to make such laws and rules as may be for the advantage of
the Territories and of the country.

Xo w, under this clause of the Constitution, if in the opinion of Congress,
in making needful rules and regulations respecting the Territories, it
should be necessary to provide for the election of a Delegate from said
Territory to this House, and Congress should so provide that said Dele-
gate should have a seat and the right to debate, could the House alone
nullify that law and refuse to seat the Delegate I

Why is not the House bound by constitutional laws ! What right
has the House to nullify and refuse to obey a law it has helped to
make?

We have already referred to various laws of Congress making express
provisions for the election of Delegates from the Territories, giving them
a right to a seat in the House, and generally applying the same rules to
Delegates as members, except Delegates have not the right to vote.

Also, as we have seen, the organic law of Utah adopts the Constitu-
tion and laws of the United States, so far as applicable, as a part of that
organic law.

664 DIGEST OF ELECTION CASES.

Also, sec. 1891, Kevised Statutes, gives the Constitution and laws force
and effect in all the Territories, so far as applicable.

The law-making department of the Government has made these various-
laws in a constitutional way, and until repealed they are binding upon
every individual in the land and every department of the Government,
including Congress. No one is above the laws in this country.

Certainly one House alone cannot repeal a law of Congress nor nullify
it by any direct or indirect proceeding. It is absolutely bound by the
law.

If Congress has the right to make a law and provide for the election of
Delegates to this House, and if the constitutional qualifications do not
apply to them, and there is no statute fixing their qualifications, it would
seem to follow that the House would be bound to admit as a Delegate
under the law such persons as the people of the Territory might elect
to represent them, however obnoxious they might be to the House. The
people of the Territory being satisfied, no one else can complain.

Suppose Congress should pass a law providing that Cabinet officers
should be allowed seats in the House, with the privilege of answering
questions put to them relating to the Executive Department, and the
other Departments of which they were chief, and with the right to
debate.

Then, could the House refuse to permit these officers seats and the
privileges accorded to them under the law ?

Could the House refuse them a seat on the ground that they were
not qualified, and set up some fanciful standard of qualifications not
prescribed by the statute ?

Could the House exclude them under the law upon the ground that
they were heretics, or Mormons, or polygamists Catholics, Democrats,.
Eepublicans, or Greeubackers ?

Would not the House be bound to obey the law that had been made
by Congress and permit the Cabinet to seats, however offensive they
might be personally ?

The logic of the majority of the committee is that one House alone
could nullify the law and exclude ad libitum.

In the Forty-third Congress, in the case of Maxwell vs. Cannon, pre-
cisely the same question was involved in that case as in the one before
the committee.

The question was stated this way :

That George Q. Cannon is not qualified to represent said Territory or to hold bis
seat in the Forty-third Congress, for the reason, as shown by the evidence, that he,
on and before the day of the election in August, 1872, was openly living and cohabit-
ing with four women, as his wives, in Salt Lake City, in Utah Territory, and he is-
still living and cohabiting with them.

On the question of qualifications, and the effect of making the Consti-
tution a part of the law by act of Congress, the committee say :

It being conceded that the contesteehas these qualifications, one other inquiry only
under this head remains, to wit : Does the same rule apply in considering the case of
a Delegate as of a member of this House? This question seems not to have been
raised heretofore. The act organizing the Territory of Utah, approved September 9,
1850, enacts that the Constitution and laws of the United States are hereby extended
over, and declared to be in force in, said Territory of Utah, so far as the same, or any
provision thereof, may be applicable. It was said, on the argument, that the Consti-
tution cannot be extended over the Territories by act of Congress, and the views of
Mr. Webster were quoted in support of this position.

We do not deem it necessary to consider that question, because it will not be denied
that Congress had the power to make the Constitution a part of the statutory law of
the Territory as much as any portion of the organic act thereof. For the purposes of
this inquiry it makes no difference whether the Constitution is to be treated as consti-

CANNON VS. CAMPBELL. 665

tutional or statutory law. It' either, it is entitled to be considered in disposing of
this case.

Upon this point there does not seem to have been any difference of
opinion in the committee.

The committee in the same case, referring to the question of polyga-
my, say :

The question raised in the specification of contestant's counsel, and above tran-
scribed, is a grave one, and unquestionably demands the consideration of the House.
This committee, while having no desire to shrink from its investigation, finds itself
confronted with the question of jurisdiction under the order referring the case.

The Committee on Elections was organized under and pursuant to article 1, section
5, of the Constitution, which declares: " Each House shall be the judge of the elec-
tions, returns, and qualifications of its own members." The first standing committee
appointed by the House of Representatives was the Committee on Elections. It wa
chosen by ballot, on the 13th day of April, 1789 ; and from that time to this, in the
vast multitude of cases considered by it, with a few unimportant exceptions, in which
the point seems to have escaped notice, the range of its inquiry has been limited to the
execution of the power conferred by the above provision of the Constitution.

What are the qualifications here mentioned and referred to the Committee on Elec-
tions? Clearly, the constitutional qualifications, to wit, that the claimant shall
have attained the age of twenty-five years, been seven years a citizen of the United
States, and shall be an inhabitant of the State in which he shall be chosen. The
practice of the House has been so uniform, and seems so entirely in harmony with
the letter of the Constitution, that the committee can but regard the jurisdictional
question as a bar to the consideration of qualifications other than those above speci-
fied, mentioned in the notice of contest, and hereinbefore alluded to.

We conclude that the question submitted to us, under the order of the House,
comes within the same principles of jurisdiction as if the contestee were a member,
instead of a Delegate.

The minority said :

It is admitted in the report, and the fact has not been and is not denied, that Mr.
Cannon possesses the constitutional qualifications, unless the qualifications of a Dele-
gate in Congress from a Territory differ from the qualifications fixed by the Constitu-
tion for a member of the House. There can be no sufficient reason assigned for the
position that the qualifications are, any different. * * The line of demarkation
between these two great powers of the House, the power to judge of the elections, re-
turns, and qualifications of its own members, by a mere majority vote, and the power
to expel its members by a two-thirds vote, is clear and well defined.

The "views" of the minority on the point were further expressed in
these words:

But a graver question than those we have considered is the question whether the
House ought, as a matter of policy, or to establish a precedent, to expel either a Dele-
gate or member on account of alleged crimes or immoral practices, unconnected with
their duties or obligations as members or Delegates, when the member or Delegate
possesses all the qualifications to entitle him to his seat.

If we are to go into the question of the moral fitness of a member to occupy a seat
in the House, where will the inquiry stop ? What standard shall we fix in determin-
ing what is and what is not sufficient cause for expulsion T If a number of members
engage in the practice of gaming for money or other valuable thing, or are accused of
violating the marital vow by intimate association with four women, three of whom
are not lawful wives, or are charged with any other offense, and a majority of the
House, or even two-thirds, expel them, it may be the recognition of a dangerous
power and policy. If exercised and adopted by one political party to accomplish par-
tisan ends, it furnishes a precedent which it will be insisted justifies similar action by
the opposite party, when they have a majority or a two-thirds majority in the House ;
and thus the people are deprived of representation, and their Representatives, possess-
ing the necessary qualifications, are expelled for causes outside of the constitutional
qualifications of members, or those which a Delegate must possess, so far as his qual-
ifications are fixed by reason or analogy, or are drawn from the principles of ourrep-
reseutative system of government

It may be stated that the reports, both of the majority and minority,
were made by Republicans.

That is a precedent that covers the case before this committee in
every particular. It was exhaustively discussed in the committee and

666 DIGEST OF ELECTION CASES.

in the House, and was adopted by the House by an overwhelming ma-
jority, and it stands to-day as the rule and law of the House, unless it
shall be reversed.

The issue in that case was sharply made, and the rule established
that Delegates from Territories are entitled to the benefit of the con-
stitutional limitations as to qualifications, and that polygamy was not
a disqualification.

Now, if the rule that has been established and practiced since the
formation of the Government as to qualification for members and Dele-
gates to the House is to be reversed and a different rule adopted, what
standard shall it be f

This House may exclude a member on a charge of polygamy. The
next House may exclude a person elected because he is a heretic or a
Catholic or a Methodist, or because he had been charged by his oppo-
nent with adultery or some other offense.

Everyone can see that such a rule or license would be dangerous to
the rights and liberties of the citizens and an end to republican govern-
ment.

The party in power would be governed by arbitrary will and caprice
alone.

Mr. Cannon, the contestant here, claims in good faith that polygamy
is a religious conviction and principle with him and his people, and in
this he is entitled to protection under the Constitution.

The people he represents have elected him and are satisfied with him,
and this House should be content.

The sixth article of the Constitution provides that

No religious test shall ever be required as a qualification for any office of public
trust under the United States.

It seems to us that the contestant is entitled to the above provision
of the Constitution as a protection. He has been convicted of no crime
and there is no law on the statute book that disqualifies him as a Dele-
gate.

IS MR. CAMPBELL ENTITLED TO A SEAT!

Mr. Campbell insists that although he may be a minority candidate,
Mr. Cannon's ineligibility entitles him to the seat. If there are any
questions settled beyond the reach of argument this is one of them.

In the case of Maxwell v. Cannon (Smith, 182) the Committee of
Elections say:

The contestant insists upon his right to the seat as the minority candidate, in case
the House shall ultimately determine to unseat or expel the sitting member. The
counsel for the contestant referred the committee to the case of A. S. Wallace v. W.
O. Simpson, in the Forty-first Congress, in support of the claim of contestant. A crit-
ical examination of the case will show that it cannot be considered as authority for
the doctrine. * * * Not only is this not an authority for the doctrine contended
for, but the cases establishing the opposite doctrine are so numerous and uniform as
to absolutely remove the question in this country from the realm of debate.

The committee cite the following cases: Smith v. Brown (2 Bartlett,
395) ; Eamsey v. Smith (Clarke & Hall, 23) ; Albert Gallatin, Senate,
1793; Philip B. Key, House, 1807; John Bailey, House, 1824; James
Shields, Senate, 1849 ; J. Y. Brown, House, 1859 ; Cushing's Treatise ;
Zeigler v. Rice (2 Bartlett, 884) ; Simeon Corley, P. M. B. Young, Kelson
Tift, and E. B. Butler, House, Forty-third Congress ; F. E. Shober,
House, Forty-first Congress, and J. C. Abbott, Senate, Forty-second
Congress.

Our conclusions are that Cannon had a clear majority of the legal
votes for Delegate.

STOVELL VS. CABELL. 667

That he possesses the necessary qualifications under the Constitution,
and laws.

That he is entitled to the seat, and we recommend the following
resolution for the consideration of the House :

Resolved, That George Q. Cannon was duly elected and returned as
Delegate from the Territory of Utah, and is entitled to a seat as Dele-
gate in the Forty-seventh Congress.

S. W. MOULTON.
GIBSON ATHERTON.
L. H. DAVIS.
G. W. JONES.

JOHN T. STOVELL vs. GEORGE C. CABELL.

FIFTH CONGRESSIONAL DISTRICT OF VIRGINIA.

Held, That depositions on. behalf of contestant, relating to irregularities at precincts
not mentioned in the notice of contest, and which were objected to by contestee
for that reason, are inadmissible.

There is no statute of Virginia which forbids the use of two ballot-boxes, one for
white and one for colored voters ; and their use did not interfere with the purity,
freedom, or convenience of the election.

Even if one of the judges of election placed the ballot of a voter in his pocket, and
not into the ballot-box (which was not proven), that fact would not authorize the
rejection of the vote of the precinct.

Depositions taken before a county clerk, and objected to at the time, are not admissi-
ble, because he had no authority to take them.

The House adopts the report.

JULY 18, 1882. Mr. ATHERTON, from the Committee on Elections, sub-
mitted the following

REPORT:

Your committee, having had under consideration the contest for a seat in
the House of Representatives from the fifth Congressional district of Vir-
ginia^ submit the following report :

The parties to the contest are John T. Stpvall, who was the candidate
upon the ticket known as the Readjuster ticket, and George C. Cabell,
who was the Democratic candidate. This district is composed of the
counties of Halifax, Pittsylvania, Henry, Franklin, Patrick, Floyd, Car-
roll, and Grayson, and the town of Danville.

The official returns made under the laws of Virginia to the office of
the secretary of the commonwealth, and duly canvassed by the State
board of canvassers on the fourth Monday of November, 1880, show
(11,778) eleven thousand seven hundred and seventy-eight votes for
George C. Cabell, and (10,919) ten thousand nine hundred and nine-
teen votes for John T. Stovall, or a majority of 859 votes for the con-
testee Cabell.

The detailed statement of the vote is as follows :

668

DIGEST OF ELECTION CASES.

Statement of the wTiole number of votes cast in the counties and corporations forming the
fifth Congressional district of Virginia, in an election for a Representative in the Congress
of the United States held pursuant to law the first Tuesday after the first Monday in No-
vember, 1880.

George C.
Cabell.

John T
Stovall.

Tony Sto-
vall.

T. Stovall.

Beverly A.
Davis.

Halifax

1 839

2 179

3 176

2 773

Henry

725

1,191

Franklin .

1 778

1 464

Patrick

769

750

Floyd .

692

605

1,160

494

761

783

Danville . . .. ....

731

585

X orth Danville

147

11, 778

10, 919

We, the undersigned, a board of State canvassers, do hereby certify that the fore-
going statement is correct.

FEED. W. M. HOLLIDAY,

Governor.
T. T. FAUNTLEROY,

Secretary of the Common'th.
JOHN E. MASSE Y,

Auditor of Public Accounts.
C. M. REYNOLDS,

State Treasurer.
JAS. G. FIELD,

Attorney-General.

The contestant does not claim in his notice of contest that he was
elected a Eepresentative to the Forty-seventh Congress, but that he
would have been elected but for certain wrongs of which he complains.
To all of contestant's allegations the contestee interposed a general as
well as a specific and particular denial and challenged the proof.

The contestant has not attempted to substantiate by proof any of the
grounds of contest specified in his notice except such as relate to the
precincts of Danville, Cascade, Brosville, Hall's Cross-Roads, and Ring-
gold, in the county of Pittsylvania ; Charity and Gates's Store, in Pat-
rick County ; and Hillsville and Dalton's Store, in the county of Car-
roll.

He has offered some testimony, which has been duly considered, re-
lating to the 'precinct of Phillips's Store, tester's, Fancy Gap, and
Smith's Mill, in Carroll County. But these precincts are not mentioned
in the notice of contest, and the depositions relating to them were ob-
jected to for that reason by the contestee, and are inadmissible. Be-
sides, the depositions were, in disregard of the contestant's objections,
taken in Carroll County by a Pittsylvania County notary, who had no
authority, under State or Federal law, to take them.

If all the demands made by the contestant in his notice of contest
respecting the precincts to which his proofs relate be conceded, the re-
sult will be as follows :

G. C. CABELL.

Returned vote 11,778

Add Charity 20

11,798

STOVELL VS. CABELL. 669

Deduct.

Danville . 731

Hall's Cross- Roads 196

Cascade 127

Ringgold 242

Brosville 167

Gates's Store 80

Hillsville 77

Dalton's Store ^ 120

1K9Q
j O/O

10, 225
J. T. STOVALL.

Returned vote 10,919

Add Charity 51

10,970

Deduct.

Danville 585

Hall's Cross-Roads 143

Cascade 79

Ringgold 238

Brosville 42

Gates's Store 37

Hillsville 37

Dalton's Store 7

1, 126

9,844
Majority for G. C. Cabell, 381.

Moreover, if instead of rejecting the entire vote of Danville, where
the contestee received a majority of 156 votes, we add to the contest-
ant's vote the 550 ballots which, in some extraordinary manner, he
claims in his brief, but not in his notice of contest, should have been
excluded on account of double registration, the contestee would still
have a majority ?

We will examine as to some of the testimony in the order presented.

DANVILLE, PITTSYLVANIA COUNTY.

What changes, if any, are to be made in favor of the contestant in
the returned vote of the town of Danville?

The contestant charges that he was deprived of five hundred votes in
that town by the deliberate and arbitrary misconduct of persons acting
in the interest of the contestee, with the purpose of defrauding or de-
priving the contestant of such votes. Under this general charge he
makes four different specifications.

1. He asserts that an organization of the contestee's political friends,
known as the Hancock and English Club of Danville, by systematic
threats and menaces of proscription in business and in social relations
against the contestant's supporters, intimidated a large number of
voters in that town and deterred them from voting for the contestant.

2. He alleges that at a meeting of the Danville Tobacco Association
resolutions were submitted, before the day of the election, to the effect
that members of that association would not bid on tobacco offered for
sale at public auction on the Danville market by any person whose

670 DIGEST OF ELECTION CASES.

avowed purpose it was to vote for the contestant ; and that, although
these resolutions were not adopted by the association, they were acted
on, not only by its members in their refusal to bid on tobacco so offered,
but also by the association itself in the removal of one of its supervisors
of public sales because of his persistence in supporting the contestant.

3. He asserts that the judges of election and challengers, with the aid
of many members of this Hancock and English Club, who, acting in
concert as friends of the contestee, formed a barrier in front of the polls,
deprived three hundred colored supporters of the contestant of the op-
portunity to vote, by the following devices :

(1.) By means of this barrier formed by the contestee's friends in front
of the polls the colored supporters of the contestant were excluded from
the polls for some time in the morning, after the opening of the polls
had been delayed for a considerable period beyond the hour fixed by
law.

(2.) These voters were then kept waiting while the judges and chal-
lengers consumed the time in asking them unnecessary and silly ques-
tions, for the purpose of defeating their efforts to vote for the contest-
ant.

(3.) Meantime the friends of the contestee were permitted to approach
the polls by an entrance at the rear of the building, and to vote rapidly,
without challenge.

(4.) The judges and challengers, with the aid of a police force friendly
to the contestee, compelled the contestant's supporters to approach the
polls singly or in couples.

(5.) The judges and challengers required supporters of the contestant,
whom they knew to be regularly registered and to be entitled to vote,
and who held their tax-receipts in their hands, to procure at other pre-
cincts certificates that they were not registered or had not voted there.

(6.) The judges of election required supporters of the contestant, who
had recently attained the age of twenty-one years, to produce their
fathers or mothers, or to do some other impracticable thing, to prove
their age, instead of accepting their own oaths, as required by law.

(7.) Meantime the judges of election were receiving votes from the
supporters of the contestee as rapidly as possible in some cases from
those not entitled to vote.

4. He alleges that one of the supervisors of election, in the town of
Danville, some days before the election, took possession of the registra-
tion books, and kept them in his possession, so as to hinder, delay, and
prevent transfers of registration to other places, to which voters had
removed.

The contestant has examined several witnesses, whose testimony, if
it were uncontradicted. would slightly tend to establish some of his nu-
merous averments relating to the Court-House precinct and the Grave's
Warehouse precinct, in the town of Danville. And yet two-thirds of
the contestant's witnesses, who testify that access to the polls was diffi-
cult, state that they were crowded off, not by white but by colored
men.

But the testimony of all these witnesses sworn for the contestant on
the points now under consideration is successfully met and wholly con-
tradicted by that of the witnesses produced on behalf of the contestee.
Contestee, beyond all question, is entitled to his majority in Danville.

HALL'S CROSS-ROADS, PITTSYLVANIA COUNTY.
The contestant asserts, (1) that the votes of many legal voters, who-

STOVELL VS. CAB ELL. 671

were supporters of the contestant, were rejected at the precinct of Hall's
Cross-Roads, in Pittsylvania County, although they held their tax re-
ceipts in their hands when they offered to vote ; (2) that the votes of
many others were rejected because their registration had been trans-
ferred to Maliuaison instead of Hall's Cross-Roads, although these two
names were, and were known to the judges to be, different names for
the same precinct ; and (3) that separate boxes were used at this pre-
cinct to receive the ballots of white and colored men ; and he demands
the rejection of the returns of this precinct as fraudulent.

On the first of these points the contestant offers no proof. On the
second he presents the testimony of four witnesses tending to show that
two votes had been rejected for the reason assigned in the notice of con-
test, and two for other reasons. But the contestee presents the testi-
mony of twelve witnesses who show that the four votes were rejected
because the men who offered them had not been registered according;
to law, or had not been properly transferred ; that no discrimination
was made between the voters; that the same questions were propounded
to every man, white and colored, in regard to his qualifications ; that
no voter of either party or color was improperly refused or needlessly
impeded in the exercise of his privilege j that the election was conducted
with perfect impartiality, and that the contestant's principal witness,
on more than one occasion and to several persons, admitted its fairness.

The testimony shows that two boxes had been used since the period
of reconstruction, without objection from any source.

There is no statute which expressly, or by necessary implication, for-
bids the use of two boxes in that way. The only question is whether
their use interfered with the purity, freedom, or convenience of tne
election. That it did not is incontestably proven by the testimony.

CASCADE PRECINCT, COUNTY OF PITTSYLVANIA.

The contestant insists that the returns from the precinct of Cascade,
in the county of Pittsylvania, are to be rejected, because one of the
judges of election was detected in the act of substituting ballots in favor
of the contestee in place of ballots delivered to him in favor of the
contestant.

In support of this claim he offers the deposition of a witness, who says :

Q. 3. Did yon see on that day any one of the judges of election suppress a colored
voter's ballot and substitute in the place of it another ballot which the colored voter
had not given him f If you did, give the name of the judge who did so, and relate
the occurrence fully.

(Objected to as suggestive.)

A. Yes, sir; Mr. James E. Adams was the judge who did it. I saw a colored man
give Mr. Adams his vote and Mr. Adams held it in hand and changed it for a
Democratic ticket, and put the Democratic ticket in the ballot-box.

Q. 4. What was the name of the colored voter f A. I don't know what his name
was.

Q. 5. Did you make any outcry about it at the time f State what yon did and said
about it. A. Yes, sir. Mr. Adams handed the Democratic ticket to Mr. Earles to put
in the box, and I said then to them, "That ticket is not voted." Mr. Earles then
said, "You are too late," and let loose the ticket, and shoved it down into the ballot-
box.

This statement is disproved by the testimony of four witnesses, two
of whom testify as follows :

JAMES E. ADAMS:

Q. Jesse Strange, one of the supervisors of election at Cascade, has stated, in
a deposition given in this cause, that yon, James E. Adams, took a ticket from a col-
ored voter and substituted for it a Democratic ticket, -and that Mr. Earles dropped it

672 DIGEST OP ELECTION CASES.

in the box instead of the ticket handed in by the colored voter. Is that statement
true or not ? A. It is not true ; nothing of the kind occurred.

U. W. EARLKS :

Q. Were you present on the 2d day of November, 1880, at the election held on that
day at Cascade? If yes, what connection, if any, had you with the election ? A. I
was present on said day, and was one of the judges of the election.

Q. Was that [election fairly conducted, and all persons legally entitled allowed to
vote ? A. The said election was fairly conducted, and all persons legally entitled al-
lowed to vote.

Q. Jesse Strange, one of the supervisors of election at Cascade precinct on said day,
has stated in a deposition given in this cause that James E. Adams, one of the judges,
took a colored man's ballot and substituted for it a Democratic ticket and handed it to
you, and that you put it in the ballot-box. Is that true or not ? A. It is not true.

RINGGOLD PRECINCT, PITTSYLVANIA COUNTY.

The contestant demands the rejection of the returns of the precinct
of Kiuggold, in the county of Pittsylvania, on the grounds (1) that sepa-
rate ballot-boxes were used for white and colored voters; (2) that
many votes offered for the contestant were rejected by the judges of
election on the pretext that the voters had not personally paid their
capitation tax, which pretext, he says, was furnished by the peculiar
form in which the county clerk, by the advice of the friends of the con-
testee, drew the tax receipts; and (3) that one of the judges of election
was seen to place the ballot of a voter in his pocket instead of the bal-
lot-box.

This demand for the rejection of the entire return is made twice in
the notice of contest, and no other relief in connection with this precinct
is then suggested. The vote stood for Cabell 242, and for Stovall 238.
The rejection of the return would, therefore, yield to the contestant a
gain of four votes.

The use of two ballot-boxes affords no valid ground for the rejection
of this return.

But the contestant asserted, in argument, that 28 votes were illegally
rejected on the pretext that the taxes of the electors had not been paid
by themselves, and he claimed 28 additional votes on that account. If
this claim, being established, could possibly change the result, while we
might not be able, without difficulty, to reach a unanimous conclusion
that no votes were illegally rejected on the ground alleged, we should
be compelled to report that so many as 28 votes were not so re-
jected. But in view of the fact that the concession of all these votes
to the contestant would still leave the contestee a majority of 831, and
of the obligation which, if this change be made, will constrain us, for
still stronger reasons, to exclude the vote of Shockoe precinct, where
the contestant had a majority of 65, and thereby raise the contestee's
aggregate majority to 896, we have concluded not to disturb the returns
of either of these precincts.

The charge that one of the judges placed the ballot of a voter in his
pocket is completely disproved. And if it were, that fact would not
authorize the exclusion of the entire vote of the precinct.

The contestant, in his brief, presents a demand, connected with the
claim of 28 votes just considered, to which no reference is made in his
notice of contest. It is a demand that 175 additional votes, including
the 28, be allowed him in the entire county because refused on the
ground, that the electors had not paid their own taxes. He says

(1) That he has proven that "28 votes at this precinct were unlawfully rejected
because of the manner in whichjthe receipts for the capitation tax were written " ; (2)
that Sheriff Overby testified that " these receipts were issued to the number of 150 or

STOVELL VS. CABELL. 673

200 colored men" for the entire county; and (3) that inasmuch as one of the Riuggold
judges of election had said that Judge Aiken, of Danville, had said that these receipts
were unlawful, it was to be inferred that 150 or 200 votes offered for the contestant in
Pittsylvauia County were unlawfully rejected because of the form of the capitation-tax
receipts. And thereupon, without proof of the offer and rejection of these 150or 200
votes, and without any averment to that effect in his notice of contest, he seeks to
appropriate the average of 150 and 200 that is to say, 175 votes.

It is obvious that we could find no excuse for complying with a de-
mand resting: on such shadowy grounds. There is no legal evidence of
the alleged facts. Hearsay and inference cannot be substituted for
proof.

BROSVILLE PRECINCT, COUNTY OF PITTSYLVANIA.

The contestant asserts, in the notice of contest, that at the pre-
cinct of Brosville, in the county of Pittsylvania, many illegal votes for
the contestee were received and many legal votes for the contestant
rejected.

He asks for no relief. The testimony completely disproves his aver-
ments. There is not the slightest reason to interfere with this poll.

DOUBLY REGISTERED VOTERS IN PITTSYLVANIA COUNTY.

The contestant, in his brief and argument, claims 550 additional votes
in the county of Pittsylvauia, on the ground that 550 of his supporters,
who were registered, each at two or more precincts, were not permitted
to vote. This demand is not suggested in the notice of contest, and
therefore cannot be considered by us, and if it were necessary would
be rejected for that reason, nor is it sustained by the proofs.

The proof on which this claim is based is found in the following tes-
timony of James Wood :

Q. 26. You are shown a copy of the Daily News, a paper published in Danville, Va.,
and the copy shown you, dated Tuesday, November 2, 1880. It contains what pur-
ports to be a letter from Attorney-General Field, of Virginia, in answer to a letter ad-
dressed to him by Mr. E. A. Catliu, Democratic supervisor of election, held on thatday.
In that issue of that paper, and in the article professing to recite Attorney-General
Field's letter to E. A. Catlin, as above, occursjthe following : " Answer to second ques-
tion : Any person's vote may be objected to on the day of the election, and if it shall
appear that his name is improperly on the registration books his vote should be rejected.
If it appears that a person has registered at two places in the same county, without
a transfer, his vote should be rejected." Did 'not the Democratic supervisor and chal-
lenger at that election, November 2, 1880, act upon that opinion as if it had read that the same
name appeared at tu-o precincts, without reference to the identity of theperson f A. Thatwas
my understanding of their ruling.

Q. 29. If the construction put upon Attorney- General Field's letter, above quoted, by the
Democratic suorvisors and challenqers of Danville had been generally acted upon at every
precinct in Danville and in Pittsylvania County, how many colored votei-s, in your opinion,
would have been disfranchised in Danville and Pittsylvania County at that election t

(Objected to, as calling for the mere opinion of the witness upon a purely hypothet-
ical case, which, is not evidence, and for an opinion which has about as much bearing
upon this case as if, instead of Pitteylvania, it had been asked with reference to
Babylon.)

A* In my opinion it would have disfranchised a large number, probably five or six hundred.

This witness, it appears " understood " that at one of the 30 precincts
of Pitrsylvania County every person who offered to vote in a name
which was registered at two precincts was denied the right, even when
there were two different voters of the same name, and he is of the opin-
ion that if the same thing was done at each of the other 29 precincts
then probably 500 or 600 colored men were disfranchised in the entire
county.

H. Mis. 35 43

674 DIGEST OF ELECTION CASES.

We should not feel warranted in allowing the contestant any addi-
tional votes upon this proof at the particular precinct to which it refers y
even if the pleadings permitted him to claim them. But if it be true that
the judges at the Court-House precinct in Danville placed upon the at-
torney-general's letter the erroneous construction which the witness un-
derstood them to place upon it, we are not at liberty to assume, without
proof, that the judges at the other 29 precincts misinterpreted the letter
in the same way. Nor, assuming it to be true that the same erroneous
construction was placed upon the letter in all the precincts of the county,
can we receive the opinion of this witness as proof of the fact that it
caused a disfranchisement of 500 or 600 colored voters in the county.
It does not appear that expert testimony from this witness is admissi-
ble to establish that fact. But if the fact were established, we could
not, upon this record, assume or conclude that the 500 or 600 disfran-
chised colored men were all supporters of the contestant. There is no
proof to justify contestant's demands.

The census of 1880, showing the population of Danville to have been
7,526, satisfies us that the establishment of this claim by proof was an
impossibility. For if of these 550 disfranchised colored men 328 were,
as the contestant asserts, voters of the town of Danville, then the voters
of that town numbered about 1,983, and constituted more than 26 per
cent, of the entire population. By the ordinary rule, reckoning the pop-
ulation of Danville at even so much as 8,000 on 2d November, 1880,
there could hardly have been over 1,600 voters if all were qualified ac-
cording to law. The proof shows that 1,324 persons voted at Danville
on 2d November. 1880 ; that 311 persons were disqualified by non-pay-
ment of tax and conviction of crime, and therefore did not vote, making
1,635, which accounts in a satisfactory way, it seems to us, for the vot-
ing population of that town. If, however, we were to adopt the views
of contestant, and add to the 1,635 voters found above 328, which he
claims were prevented from voting for him, and some ten or twelve more
who are shown by the testimony to have desired to vote for contestee,
but were prevented by the crowd from doing so, we would find our-
selves confronted with the fact that there were in Danville on said 2d
November, 1880, about 1,983 voters out of a population of less than
8,000, a majority of whom, according to the census returns, were fe-
males. The fact is the vote at Danville on the day named was quite a
full vote, the population and other facts considered.

PETERS'S CREEK, NTJNN'S STORE, GATES'S STORE, PATRICK COUNTY.

The contestant asserts in his notice that at the precincts of Peters's
Creek, Nunn's Store, and Gates's Store, in the county of Patrick, the
judges of election opened the ballot-boxes during the progress of the
election, and examined and counted the votes contrary to law, and he
demands that the returns of these three precincts be rejected by the
House of Eepresentatives.

But he has offered no proof in support of this charge, except as to
the precinct of Gates's Store. He produced two witnesses to impeach
the returns of this precinct. Their testimony completely refutes the
charge instead of proving it.

But if that were not so, their depositions are not admissible in evi-
dence, because, like the rest of the contestant's Patrick County deposi-
tions, they were taken before the county clerk, who had no lawful author-
ity to take them, and the contestee objected before they were taken.

STOVELL VS. CABELL. 675

CHARITY PRECINCT, PATRICK COUNTY.

The contestant, in his notice of contest, asserts that the county cau-
vassers of Patrick County illegally rejected the returns of Charity pre-
cinct, and demands that the returned vote of this precinct be counted.

But his own proof shows that the only return made by the judges of
election of the precinct was a return of the vote for electors of Presi-
dent and Vice-President, which return wholly omits the votes cast for
the Eepublican electoral candidates. It shows that the judges of elec-
tion made no return at all of the vote for Representative in Congress.
The omission of the county canvassers to canvass votes not returned was
not illegal. On the contrary, the canvass of votes not returned would
have been a lawless proceeding.

If it were true, as the contestant asserts in his brief, that 51 votes
were cast for the contestant, and only 20 for the contestee, at this pre-
cinct, the contestant might have availed himself of the net result by
proper averments in his notice, duly supported by legal proof. But he
made no such averments. His only averment was that the county can-
vassers illegally rejected the return; and that averment was not true.
Nor is the testimony taken on the subject before the county clerk ad-
missible.

CARROLL COUNTY.

The contestant, in his notice, demands the rejection of the entire vote
of Carroll County. But there is no proof to justify any modification of
the official returns from this county.

SHOCKOE PRECINCT, PITTSYLVANIA COUNTY.

The contestee, in his answer, demands the rejection of the vote of
Shockoe precinct, in Pittsylvania County, where the contestant received
as reported a majority of 65 votes. We might well exclude this precinct
from the count by reason of the wrongful and illegal conduct practiced
by friends of contestant at that point, but for reasons already suggested
we have concluded not to disturb the return, as we can, after thorough
examination of all the facts and circumstances connected with the elec-
tion in the fifth Congressional district of Virginia, on 2d November, 1880,
sustain the contestee, George C. Cabell, in his position by at least his
returned majority of 859 votes, and report the accompanying resolutions:

1. Resolved, That John T. Stovall was not elected to a seat in the
Forty-seventh Congress from the fifth Congressional district of Vir-
ginia, and is not entitled thereto.

2. Resolved, That George C. Cabell was duly elected to a seat in the
Forty-seventh Congress from the fifth Congressional district of Vir-
ginia, and is entitled to represent the same.

676 DIGEST OF ELECTION CASES.

S. P. BAYLEY vs. JOHN S. BARBOUR.

EIGHTH CONGRESSIONAL DISTRICT OF VIRGINIA.

In this case the only ground of contest insisted on was that contestee at the time of
the election was ineligible and disqualified to be the Representative of said dis-
trict and State, because he was not a bona fide resident or inhabitant of Virginia.

Held, That contestee was in fact at the time and before the election an inhabitant of
Virginia, and was duly elected.

APRIL 12, 1882. Mr. WAIT, from the Committee on Elections, sub-
mitted the following

REPORT:

The Committee on Elections, to whom was referred the above contested- elec-
tion case, having had Hie same under consideration, beg leave to submit
tlie following report :

This case comes before the committee upon the application of S. P.
Bayley, who contests the right of John S. Barbour to a seat in this House
from theeighth Congressional district of Virginia, contending that upon
the grounds set out in the notice of contest the said John S. Barbour
was not, and the said contestant S. P. Bayley was, duly elected said
Representative for said district and State.

The notice of contest contained six separate and distinct grounds and
charges.

The second and third grounds were, that large numbers of persons
who were not qualified according to law were permitted to vote at the
election held for said Representative on November 2, 1880, and that such
illegal votes were received, counted, and returned for the said John S.
Barbour for Representative.

The fourth allegation was that large numbers of lawful voters were
prohibited from voting, which said votes, had they been received, would
have been cast for the contestant.

The fifth and sixth allegations charged that large numbers of lawful
voters, by intimidation and gross frauds and abuses, were prevented
from casting their votes for the said contestant.

In disposing of these grounds of contest it is only necessary to state
that there was no evidence whatever offered in support of them, and
that there was no contention before the committee that they were in
point of fact true. Having been abandoned, it appears from the record
that of the 27,441 legal votes cast at said election the said Bayley, con-
testant, received only 9,177. This leaves for the committee's consider-
ation the sole question raised by the first ground set out in the notice of
contestant, to wit:

That the said John S. Barbour, at the time of said election for such
Representative, was ineligible and disqualified to be the Representative
of said district and State.

The said ineligibilty and disqualification consists in this, that the
said John S. Barbour was not at the time aforesaid either a bonafide res-
ident or inhabitant of said State of Virginia.

BAYLEY VS. B ARBOUR. 677

When the contestant abandoned the grounds of contest above set
forth he at the same tiuie relinquished all right or claim to the seat of
the sitting member, even in the event that the same should be declared
vacant on the ground of the constitutional iueligibility and disqualifica-
tion of its occupant.

In the case as made up and presented to the committee the contest-
ant has only that interest in it that is possessed by every other elector
in the district ; yet there is no petition or memorial from any body of the
electors of the district addressed to Congress setting forth any objec-
tion to the right of Mr. Barbour to a seat in the House to which he has
been elected on the alleged ground that he is not possessed of those
qualifications which, by the Constitution of the United States, are in-
dispensable to the holding of a seat in Congress.

Both upon principle and precedent the committee think that those
questions which relate solely to the qualifications of members of Con-
gress should be more appropriately brought to the attention of Congress
by a memorial of the electors who are alone interested in the result.
This practice could work no wrong, and would be productive of much
good in preventing troublesome and gratuitous contests which might be
inspired by motives other than the interests of the electors.

The subject being one of great importance, however, they have con-
sidered it on the testimony adduced, which is solely upon the question,
of the qualification of Barbour under the Constitution of the United
States.

In support of the voluntary contest thus made by S. P. Bayley against
the eligibility of the sitting member, he proceeded to take the testimony
of three witnesses in the city of Alexandria, namely, George Duffey,
Augustus F. Idensen, and Jno. S. Barbour, the last-named being the
returned member himself, the olvject being to show that the said Bar-
bour was not a bona fide inhabitant of the State of Virginia, as required
by the Constitution of the United States. Mr. Duffey was the commis-
sioner of revenue for the city of Alexandria, and Mr. Idensen was clerk
to the State assessor of that city for the year 1880. The contestee, Bar-
bour, on his own behalf, took no testimony, but submitted the case upon
the evidence of the contestant.

Duffey testifies that it was his duty to assess all real and personal
properties, incomes, licenses, &c., also the annual capitation tax pre-
scribed by law upon all male inhabitants of the State abiding in the
city of Alexandria over twenty-one years of age at the time of the as-
sessment.

That the said Barbouf had no real property in the city of Alexandria,
but that the property of his wife situated there was assessed to her on
the property books as an Alexandrian, the law requiring the residence
of the owner to be given. Idensen testifies that this was changed in
1880, when Mrs. Barbour, after the election, was put down as a resident
of Washington, D. C., when he, as the assessor's clerk, knew that Jno.
S. Barbour was an actual resident in the city, and so stated in his dep-
osition. Mr. Barbour testifies that he was a native of the State of
Virginia; had always been a citizen of said State ; never claimed to have
lived elsewhere in a' permanent sense, or to have exercised citizenship in
any other State or Territory ; that his post-office, business headquarters,
residence required by statute for the service of legal process upon him,
were all in the city of Alexandria, and within the limits of said State,
and that while he had a temporary winter residence in the city of Wash-
ington, he had taken a house in Alexandria, with his family, in Septem-

678 DIGEST OF ELECTION CASES.

ber, 1880, and was so actually residing at the date of the Congressional
election in November, 1880, and subsequently.

The code of Virginia, ch. 166, sec. 7, which provides for the manner of
serving process against corporations, says :

It shall be sufficient to serve any process against or notice to a corporation on its
mayor, rector, president, or other chief officer, or in his absence from the county or
corporation in which he resides, &c., * * * and service on any person under this
section shall be in the county or corporation in which he resides ; and the return shall
show this, and state on whom and when the service was, otherwise the service shall
not be valid.

Under this statute service of process was habitually made upon John
S. Barbour, as president of the Virginia Midland Kail way, as a resident
of Alexandria.

That in July previous to his nomination for Congress he had declined
to be listed by the enumerator of Washington City as an inhabitant of
that city, but then stated that he was an inhabitant of Virginia.

That when traveling absent from the State of Virginia he invariably
registered himself as from Virginia.

That at the time of the election and before he was actually residing
in Alexandria, without any intention of removing therefrom perma-
nently. It was contended on behalf of the contestant that although
John S. Barbour was an actual resident of the city of Alexandria, Va.,
within said district, at and before the time of the election, he was not
an inhabitant within the meaning of the constitutional requirements to
qualify him as a member of Congress.

In support of this view the case of John Bailey (Clark and Hall's
Contested Election Cases, p. 4L1) was relied upon. Bailey was chosen a
member of Congress from the State of Massachusetts on the 8th day of
September, 1823, at which time he was actually residing in the city of
Washington, in the capacity of clerk in the State Department. On the
1st day of October, 1817, Bailey, who was at that time a resident of
Massachusetts, was appointed by the Secretary of State a clerk in the
Department of State, and immediately repaired to Washington, and
entered on the duties of his appointment. He continued to reside in
the city from that time with his family having in the mean time mar-
ried in the capacity of a clerk in the Department of State, until the
21st day of October, 1823, subsequent to the date of his election, at which
time he resigned his appointment. Upon the petition of certain citi-
zens and electors of the Norfolk district, in the State of Massachusetts,
the question of his eligibility and qualification under the Constitution
was brought to the attention of Congress, and it was contended on be-
half of Bailey that, although he had been from the time of his appoint-
ment in 1817 up to and subsequent to his election to Congress a resi-
dent of Washington, he had retained his citizenship in the State of
Massachusetts, and by virtue of this citizenship it was contended that
within the constitutional requirement he was qualified as a member of
Congress from that State. The committee considered at some length
the distinction between citizenship and inhabitancy, and their report,
which was approved by Congress, against the eligibility of Bailey as a
Congressman was based upon these distinctions. It was held that be-
ing a citizen of the State, granting that Bailey was such, but residing
permanently elsewhere did not satisfy the constitutional requirements
necessary to make him eligible as a member of Congress. The commit-
tee say that "the word ' inhabitant' comprehends a simple fact locality
of existence; that 'citizen' comprehends a combination of civil privi-
leges, some of which may be enjoyed in any of the States of the Union."

BAYLEY VS. BARBOUR. 679

Tlie case of Barbour differs materially from that of Bailey in this, that
not only had Barbour continued to be a citizen of the State of Virginia,
but that he had always held his legal residence in said State as herein-
above recited. Added to that was the fact that previous to his election
3>s a member of Congress from the eighth Congressional district of
Virginia he had removed to said State and had become an actual in-
habitant thereof, residing there without any intention of permanently
removing, whereas Bailey was, when elected, an actual inhabitant and
resident of the District of Columbia, not claiming a residence or inhabi-
tancy actually in the State of Massachusetts, except constructively
through and by virtue of his citizenship, which he contended he had
never renounced in said State.

It was contended further by the contestant in this case that the elect-
ive franchise in Virginia was one of the essentials of inhabitancy, and
that under the local laws ot the State of Virginia a residence of twelve
mouths within the State, and a residence of three months next preceding
the election in the county, city, or town where the person offers to vote,
was a requisite qualification of an elector, and that with these requi-
site qualifications a registration was also necessary ; that John S. Bar-
bour had never registered as a voter, and therefore he was not an in-
habitant within the contemplation of the Constitution.

It was contended that the word "inhabitant" embraces citizenship;
that an inhabitant must be entitled to all the privileges and advantages
conferred by the laws of Virginia, and that the elective franchise alone
confers these ; therefore an inhabitant must have a right to vote, and
further, that the burdens of inhabitancy were predicated upon the right
to vote.

In answer to this position, without deeming it necessary upon the
facts of this case to enter into the constitutional signification of inhabit-
ancy, it is only necessary to say that the right to vote is not an essen-
tial of inhabitancy within the meaning of the Constitution, which is
apparent from an inspection of the Constitution itself. In Article I,
section 2, the electors for members <f Congress " shall have the quali-
fications requisite for electors of the most numerous branch of the State
legislature," but in the succeeding section, providing for the qualifica-
tions of members of Congress, it is provided that he shall be an inhabit-
ant of the State in which he shall be chosen. It is reasonable to con-
clude that, if the elective franchise was an essential, the word "elector"
would have been used in both sections, and that it is not used is con-
clusive that it was not so intended.

In the case of Philip Barton Key (Clark and Hall's Contested Election
Oases, p. 224), who was? elected a member of Congress from Maryland
on the Oth day of October, 1806, and who was seated as such, the facts
are these : Mr. Key was an inhabitant of the District of Columbia, and
in November, 1805, he purchased about one thousand acres of land in
Montgomery County, Maryland, about fourteen miles from Georgetown;
that some time in the summer of 1806 he caused a dwelling-house to be
erected on said lands, into which he removed with his family on the
18th September, 1806; that he was residing in said house, which was
only partially completed, from that time up to the 20th of October,
1806, when he removed back with his family to his seat in the District
of Columbia, where he remained till about the 28th of July, 1807, when
they again removed to his estate in Montgomery County, where they
remained till the 20th of October, 1807, when they again returned to
his seat in the District of Columbia. He was only living and inhabit-
ing within his said district in Maryland for the period of little upwards

680 DIGEST OF ELECTION CASES.

of a month, during which time, to wit, on the 6th day of October, 1806,
the election took place, at which he was returned as a Kepresentative
to Congress from said district. Notwithstanding this short residence,
and the fact that Mr. Key, before his removal to Maryland, had been
confessedly a citizen and inhabitant of the District of Columbia, it was
decided by Congress that he was eligible and qualified under the Con-
stitution as a member of Congress.

In further answer to the position that the elective franchise is neces-
sary to qualify one as a member of Congress, it will appear from an in-
spection of the constitution of Maryland of 1776, and in full force in 1806,
when Mr. Key was elected a member of Congress from Maryland, that
the qualifications for electors for the most numerous branch of the leg-
islature

Shall be freemen above twenty-one years of age, with a freehold of fifty acres
of land in the county in which they offer to vote, and residing therein, and all
freemen having property in this State above the value of thirty pounds current
money, and having resided in the county in which they offer to vote one whole year
next preceding the election.

Therefore, Mr. Key, who was deemed qualified as a member of Con-
gress, was not an elector of the State of Maryland, and could not vote
at the election at which he was returned as a member.

Without resting this case, however, upon these grounds, the commit-
tee are satisfied from the facts of the case, as developed in the testimony,
that John S. Barbour was, in point of fact, before and at the time of his
election as a member of Congress from the eighth Congressional dis-
trict of Virginia, an actual inhabitant of the State, enjoying all the
rights and subject to all the burdens as such, and that having been
duly elected as a member of Congress from said district he is entitled
to his seat.

Resolved, That John S. Barbour was duly elected and is entitled to hia
seat as a member of the Forty-seventh Congress from the eighth Con-
gressional district of the State of Virginia.

' JOHN T. WAIT.

JAMES M. EITCHIE.

SAMUEL H. MILLER,

LOWNDES H. DAVIS.

SAMUEL W. MOULTON.

W. H. CALKINS.

A. A. RANNEY.

WM. Gr. THOMPSON.

F. JACOBS, JR.
GEO. C. HAZELTON.

G. W. JONES.

JONES VS. SHELLEY. 681

JONES vs. SHELLEY.

FOURTH CONGRESSIONAL DISTRICT OF ALABAMA.

This case grows out of a special election held November 7, 1882, to fill a vacancy from
the fourth district of Alabama caused by the unseating of Charles M. Shelley
(Smith vs. Shelley, supra, page ). The time for taking of testimony under the
statute would extend beyond March 4, when Congress would expire by limitation,
and contestant asks that some other mode of procedure be prescribed.

Held, That unless the House does what is asked the contest will prove futile ; that the
House has authority to do so, and recommend that a committee from the Com-
mittee on Elections proceed to said district and there take the evidence which
may be adduced by either party, and report the same to the House.

IN MATTER OF MEMORIAL OF JOHN W. JONES IN ELEC-
TION CASE OF JONES vs. SHELLEY.

JANUARY 23, 1883. Mr. RANNEJ, from the Committee on Elections,
submitted the following

REPORT:

The committee have heard the parties more directly interested, exam-
ined the memorial, and inquired into the facts, so far as is deemed nec-
essary for present purposes. The House is asked by the petitioner, in
a pending contest for the seat as Representative from the fourth Con-
gressional district of Alabama, to fill a vacancy, to prescribe another
and more summary mode of procedure than that provided for by the
acts of Congress relating to contested elections. The reason is that the
time allowed the parties under such acts is such that the present term
of Congress will have expired long before the contest can in regular
course be concluded. It is perfectly apparent that unless the House
does what is asked the contest will prove futile. That the House has
authority to do what is requested does not admit of a doubt. The only
question is whether there is time now before the end of the session to
accomplish the desired purpose, or whether any other mode of pro-
cedure which is reasonable and practicable can avail anything. The
memorial sets forth with great clearness and completeness a state of
facts which calls loudly for such action, if it is likely to be of any use
commensurate with the attendant labor and expense thereof.

The sitting member, after having been once unseated at the present
Congress, has been again returned with a new certificate in hand to fill
the vacancy. He was unseated because the certificate before was the
result of frauds at the polls, and the fruits of illegal and evil practices
on the part of his partisan friends. His present certificate is alleged to
have been induced and procured by the same methods in repetition,
with perhaps some variations and aggravations.

If this is so, it would seem that there is, as charged, a settled deter-
mination on the part of the evil-disposed persons therein that no can-
didate of the dominant party in the district in question shall be counted
in and get the certificate in any event.

A brief statement of some of the main facts alleged will suffice :

A contest was regularly instituted under the said acts of Congress,
and the sitting member has served an answer to the same, so that the

682 DIGEST OF ELECTION CASES.

contest is now pending. The ninety days allowed for the taking of the
evidence will extend beyond the 4th day of March next.

The sitting member was declared elected on the strength of a vote
returned of only 6,752, whereas the claim is that he did not in truth and
in fact get over about 5,000 votes. Contestant was declared and re-
turned to the State board of canvassers as having received only 4,811,
whereas he in truth and in fact received over 15,000 votes, which were
legally cast, counted, and returned to the boards of county canvassers,
but 10,000 of which were there counted out either for no assignable rea-
son or because of certain pretended informalities in the returns and
upon frivolous objections which were resorted to only as pretexts in an
earnest search for some real or plausible excuse. There are other
charges of fraud of a more heinous character, which deprived contest-
ant of many votes in the original returns ; but laying those aside and
taking the returns as made from the voting precincts to the county
boards the contestant is said to have been elected by about 6,000 ma-
jority ; the reports of the United States supervisors give him about that
majority, as would appear by certified copies furnished the committee.
It will appear that the vote of the sitting member (6,752) is less than
one- third of the votes cast for both candidates according to the pre-
cinct returns. It is less than one-third of the votes cast in prior elec-
tions in the same district for members of Congress, as appears by the
history of those elections as read from the records of this House. It is
less than one-fourth of the voting population of the district, as appears
by the last census, and las shown in the last prior contest alluded to.

The well-known facts of history, as found and proved in prior con-
tests from this district, to which the sitting member was a party, tend
to give an air of probability to the main and essential facts alleged in
the memorial. Besides this, if the committee needed any further infor-
mation, all advices which they get from reputable and honorable men
of the district, and who appear to be cognizant of the facts, are to the
same effect. It is confidently asserted and believed by many who feel
an interest in having fair elections and honest counts that they can be
secured in the immediate future only through vigorous action on the
part of Congress of a legislative character.

If what is alleged is true it would seem that what has occurred in the
district is subversive of the fundamental principles of a republican form
of government, and that anything like fairness and honesty in the con-
duct of elections, and especially in the subsequent canvassing of the
returns, seems to be out of the question ; that unfairness and dishonesty
is the rule and not the exception on the part of the partisan friends of
the sitting member ; that the same is practiced deliberately, persist-
ently, openly, and in apparent bold defiance of the law of Alabama
and as held in Congress. The record which this House contains of
the facts which have been proved in the prior election cases from the
same district, showing how a party with a clear majority of four to one
have uniformly been deprived of their rights and the certificate wrong-
fully given to a minority candidate, is a sad and sickening one for those
who believe in fair dealing, and credit the facts as alleged. But lay-
ing those considerations aside as only important now so far as they
enforce other considerations which must determine the propriety and
wisdom of the action which the memorialist invokes, it is sufficient to
say that the facts alleged in the memorial, confirmed and rendered highly
probable as they are by other well-known facts and from other sources
outside, entitle the contestant to the means of taking other proofs and
to the remedy which he seeks. If the sitting member has a certificate

JONES VS. SHELLEY. 683

which was wrongfully awarded him by the means and methods set forth
in the memorial, and upon the state of facts alluded to, he should not
be permitted to hold the seat for a day or a minute longer than is ab-
solutely necessary under the usages of this House. It is due to the
honest electors of the district and to the whole country, as well as the
cause of good government, that an opportunity should be afforded to
prove or disprove the facts alleged.

The committee therefore report and recommend the passage of the
following preamble and resolution, being assured that all the needed
evidence upon the main issue of fact will be mainly documentary and
can be taken in course of about ten days :

Whereas John W. Jones claims to have been elected as Representa-
tive from the fourth Congressional district of Alabama, to fill a vacancy,
and has instituted proceedings for a contest under the provisions of the
acts of Congress relating to contested elections ; and whereas there is not
sufficient time to prosecute and conclude said contest under the provis-
ions of said acts and in course before the expiration of the present term
of Congress, and the contest must be abandoned unless some other
more speedy mode of precedure be prescribed : Therefore,

Resolved, That a special committee, composed of three members of
the Committee on Elections, be appointed, with authority, and whose
duty it shall be to proceed, without unnecessary delay, to the fourth
Congressional district of Alabama, and there take the evidence which
may be adduced by either party in the matter of the pending contest,
and report the same to the House as soon as may be. That the com-
mittee appointed is empowered to send for persons and papers and ad-
minister oaths, and also to employ stenographers, messengers, and a
sufficient clerical force, at the usual compensation, the expenses to be
paid out of the contingent funds of the House, upon the approval of
the chairman of said committee.

IN RE CONTESTED-ELECTION CASE OF JOHN W. JONES,
CONTESTANT, AGAINST CHARLES M. SHELLEY, CON-
TESTEE.

Held, That the rule of law being that the ordinary methods of trying contested-elec-
tion cases in accordance with the provisions of the act of Congress will not be
departed from without good cause, no such cause has been shown.

Mr. BELTZHOOVER, of the Committee on Elections, to whom was re-
ferred a certain memorial of the above-stated contestant, submits the
following

VIEWS OF THE MINORITY:

The records of the Committee on Elections, and the answer of the con-
testee made at the summary hearing of the memorial before the com-
mittee, show that at the election held on November 7, 1882, to fill the
vacancy in the fourth Congressional district of Alabama, the contestee
wat duly elected and received the certificate ; that upon the reassem-
bling of Congress in December he was sworn in, and is now the sitting
member from the district. All the presumptions of law are in favor of
the legality and regularity of the election and the validity of the certifi-
cate which is the evidence of the contestee's title. The contestant served

684 DIGEST OF ELECTION CASES.

a notice of contest regularly .on the contestee, who filed an answer,
and both parties are now engaged in the prosecution of the contest
and in taking testimony. The usual and well-established method of
determining the legality of said election is by pressing this contest
under the law to a decision before the committee and the House. It is
true that it has been held that the acts of Congress regulating contests
are only directory and not i mperative, and may therefore be disregarded
by the House if it sees proper to do so ; but all the best interests of fair
trial and just judicial determination are largely subserved by adhering
to the regular prescribed methods. McCrary says : " They [the stat-
utes regulating the mode of contesting elections] constitute wholesome
rules not to be departed from without cause " (sec. 349). This was set-
tled by the House in the case of Williamson vs. Sickels (1 Bartlett, 288).
The contestant, through his memorial, asks Congress to take a short cut
outside of the law for the disposition of the case by the appointment of
a special committee with summary powers and authority to act accord-
ing to its own discretion. There are strong reasons why this extraor-
dinary relief should be refused and the regular practice be adhered to.

First. The contestant complains that the time is insufficient to finish
his contest in the way prescribed by the statute. But there is no evi-
dence that this is so, and even if it were he has been guilty of laches in
conducting his case. He might have begun about thirty days sooner
than he did, and thereby saved a large portion of the brief time which
of necessity remained to him to test his rights, and which he now com-
plains is too short.

Second. After the memorial had been filed the contestee appeared
at the room of the Committee on Elections early in the present session, in
compliance with a notice, for the purpose of answering said memorial, but
the contestant did not appear. The contestant then requested that if
at any time the memorial was to be considered by the committee a no-
tice should be sent to him. He never received any such notice until he
was directed to appear before the committee after the report of the sub-
committee was in print. In addition to this the contestant told the
contestee that he did not intend to proceed on the memorial, but that
he would follow up the contest, and in conformity to this understand-
ing both parties are now prosecuting the contest under the law.

Third. It is utterly impossible for any committee to go to Alabama
and in the time remaining before the end of the present session of Con-
gress take the testimony which of necessity will have to be taken
if it is begun de novo to show all the facts in the case. The district
embraces five counties and is 90 miles long and 80 miles wide. In
one of the counties there is no railroad communication within 16 miles of
the county seat. It would be wholly impracticable to make anything
like a reasonable effort at getting testimony in less than five days for
each county, and this would necessarily be exclusive of the time required
for serving notices, subpoenaing witness, traveling, &c.

Fourth. A special committee will cost several thousand dollars, with-
out any reason whatever to believe that it would result in obtaining
anything but a mere fraction of the evidence, which being taken first
and by the contestant, would probably tend to support the allegations
in his memorial, and be the basis for an unjust partisan judgment in his
favor. The report of the majority of the committee seems to point to
this when it suggests that the returns would be sufficient to justify the
seating of the contestant. This proposition is based on the assumption
that the returns referred to are legal and regular. On the contrary,
they are stated to be irregular and utterly false and fraudulent. Among
other charges made against them by the contestee are these :

JONES VS. SHELLEY. 685

1. Most of these returns, which the contestant wants to drag in as
conclusive evidence of his rights in this unusual way, passed through the
Republican headquarters on their way to the several court-houses of the
district, and were manipulated, changed, altered, and fixed up to suit
the interests of the contestant's party managers. It is submitted that
under these circumstances these returns would not be such evidence as
should be admitted without an ample opportunity to explain and con-
tradict them by parol testimony.

2. George H. Craig, who is the counsel for the present contestant,
was a candidate for election to the Forty-eighth Congress on the same
ticket and at the same election at which the contestant ran. Craig
and Jones were both candidates at the same time, conducted their cam-
paign together, were both beaten, are both contestants, and are now
pooling the issues of their contests. They controlled and secured the
naming of all the Democratic supervisors of election, although the
Democratic committee had submitted a list of persons who were thor-
oughly qualified and were trusted representatives of the party whose
interests they were intended to guard. The Democrats who were named
as supervisors by the friends of the Republican candidates, besides be-
ing in many instances not well fitted in many ways, were not of that
class whose party fealty made them fair representatives of their party.

3. The memorial upon which the committee base their report is the
work of Mr. Craig, who contests the seat of Mr. Shelley in the next
Congress, and the effect of an imperfect and hasty and unfair investiga-
tion now would be to greatly prejudice the case of the latter and help
the case of the former. This Congress has had contested-election cases
enough of its own without embarking in the business of setting up small
side shows to help along contests in the next House.

4. The United States marshal gave Messrs. Craig and Jones an in-
definite quantity of blank commissions for deputy marshals, to be filled
up for whoever they saw fit and wherever they would do the most good
for the Republican candidates in this grand duplex combination.

Fifth. The report of the majority of the Committee on Elections rec-
ommending that a special committee be created with indefinite and
arbitrary powers is as positive and dogmatic in its findings as if they
were sustained by facts. The report rests solely on the mere ex parie
statement, not under oath, of the memorialist, whom the contestee con-
tradicts in every material allegation. What evidence is there in this
memorial which any court would regard of the slightest weight ? No
chancellor would grant any relief on it without some verification of its
allegations. No Committee of Elections or House of Representatives on
such statements alone have ever characterized the citizens and sworn
officers of any Congressional district as " evil-disposed persons," &c.
No committee has ever based a finding on the fact that the returned
candidate had received less than one-third of the votes cast at the pre-
vious elections or less than the voting population of the district. This
kind of evidence, which is always incompetent, is still more unreliable
when it is remembered that in this instance the election was to fill a
vacancy of only a few months, and there was no general interest taken
in the result, and no reason for a full vote being cast. But in order to
support their report the majority resort to " all advices which they get
from reputable and honorable men of the district and who appear to be
cognizant of the facts." What are these " advices "? Who are they
from ! Is Congress to solemnly adjudicate upon the right of a member
to a seat on the hearsay and rumor which members gather in their pri-

686 DIGEST OF ELECTION CASES.

vate communications with persons unknown and unsworn, and of whom
and of which there is no public or verified knowledge ?

The majority of the Committee on Elections further bolster their re-
markable report by saying " that the facts alleged in the memorial,
confirmed and rendered highly probable as they are by other well-known
facts and from other sources outside, entitle the contestant to the relief
which he asks," &c.

This committee in the case of Mackey vs. Dibble refused to investi-
gate by a commission charges of fraudulent interference with and forgery
of the pretended evidence offered to make out the case for the contestant,
yet in that case these charges were made upon and fortified by the
sworn affidavits of several witnesses. We are met also with the stale
argument that all the colored voters must be presumed to be Republicans,
and in addition must be presumed to have voted for every Republican
candidate. To test it let it be supposed that the memorialist was an
escaped convict from the North Carolina penitentiary, where he had
been sentenced for a high crime. Suppose he was a fugitive from jus-
tice who had eluded the prison keepers and was seeking an asylum as a
Republican Eepresentative in Congress. Suppose that his history and
character was such that if he were here at the bar of the House he
could not be sworn in under the information within the personal
knowledge of the members of the present House. If these things were
true, would it not be a violent and unwarranted assumption of fact
that all the colored people of the district in which this contention
arises would vote for him ? How does the House, before making the
inquiry, know what fact may exist affecting the popularity of the can-
didate 1 ? Has he integrity and intelligence? Do the colored people
all vote the Republican ticket, and do they support the candidate of
the party without respect to character, fitness, intelligence, or integrity ?
Do these qualities affect the popularity of a candidate among them ?
If so, reputable colored people of the district have some rights which
even a Republican committee in its direst exigency should respect.
The continuous cry of fraud against elections in the South, on the
assumption that all the colored people vote the Republican ticket, is
itself becoming a fraud. On this theory the election committee, con-
sisting of eleven Republicans and four Democrats a majority of two-
thirds and one to spare vindicated the fundamental principles of re-
publican government at the last session by unseating General Shelley,
who had been elected by over 3,000 majority. They vindicated the
same great and essential principles by ousting Mr. Finley, Mr. Dibble,
Mr. Wheeler, Mr. Tillman, and others, but their appeal to the country
resulted in ousting the ousters, and returned to their places again most
of the victims of this unholy crusade with an overwhelming Democratic
majority at their back.

Sixth. The rule of law being that the ordinary method of trying con-
tested elections in accordance with the provisions of the act of Congress
will not be departed from without good cause, it is respectfully submitted
that under all the circumstances in this case no such cause has been
shown.

F. E. BELTZHOOVER.

GIBSON ATHERTON.

L. H. DAVIS.

S. W. MOULTON.

LIST OF CASES.

FORTY-SEVENTH CONGRESS.

ANDERSON vs. REED, first Congressional district of Maine 284

BAYLEY vs. BARBOWR, eighth Congressional district of Virginia 676

BISBEE vs. FINLKY, second Congressional district of Florida 172

BUCHANAN vs. MANNING, second Congressional district of Mississippi 287

CANNON vs. CAMPBELL, Territory of Utah 604

COOK vs. CUTTS, sixth Congressional district of Iowa 243

JONES vs. SHELLEY, fourth Congressional district of Alabama 681

LEE vs. RICHARDSON, first Congressional district of South Carolina 520

LOWE vs. WHEELER, eighth Congressional district of Alabama 61

LYNCH vs. CHALMERS, sixth Congressional district of Mississippi 338

MABSON vs. GATES, third Congressional district of Alabama 8

MACKEY vs. O'CONNOR, second Congressional district of South Carolina 561

SESSINGHAUS vs. FROST, third Congressional district of Missouri 380

SMALLS vs. TILLMAN, fifth Congressional district of South Carolina 430

SMITH vs. ROBERTSON, sixth Congressional district of Louisiana 284

SMITH vs. SHELLEY, fourth Congressional district of Alabama 18

KTOLBRAND vs. AJKEN, third Congressional district of South Carolina 603

STOVALL vs. CABELL, fifth Congressional district of Virginia 667

STROBACH vs. HERBERT, second Congressional district of Alabama 5

WITHERSPOON vs. DAVIDSON, first Congressional district of Florida 163

(687)

INDEX.

Page.

Aiken, D. Wyatt, contestee, third district of South Carolina 603

Alabama JONES vs. SHELLEY 681

MABSON vs. GATES 8

SMITH vs. SHELLEY 18

STROBACH vs. HERBERT 6

ANDERSON, SAMUEL J., vs. THOMAS B. REED, contested election, first district of

Maine 284

ANDERSON vs. EEED, report of committee 284

resolution adopted 286

Atherton, Hon. Gibson, Ohio, member of Committee on Elections 3

Barbour, John S., contestee, eighth district of Virginia 676

BAYLEY, S. P., vs. JOHN S. BARBOUR, contested election, eighth district of Vir-
ginia 676

BAYLEY vs. BARBOUR, report of committee 676

resolution adopted 680

Beltzhoover, Hon. F. E., Pennsylvania, member of Committee on Elections 3

BISBEE, HORATIO, Jr., vs. JESSE J. FINLEY, contested election, second district

of Florida . 122

BI.SBEE vs. FINLEY, majority report 172

minority report 202

resolutions adopted 194

BUCHANAN, GEORGE M., vs. VAN H. MANNING, contested election, second district

of Mississippi 287

BUCHANAN vs. MANNING, majority report 287

minority report 298

resolutions adopted 297

Cabell, George C., contestee, fifth district of Virginia 667

Calkins, Hon. W. H., chairman of Committee on Elections 3

Campbell, Allen G., contestee, Territory of Utah 604

CANNON, GEORGE Q., vs. ALLEN G. CAMPBELL, contested election, Territory of

Utah 604

CANNON vs. CAMPBELL, majority report 605

minority report 655

views of Mr. Thompson 614

Mr. Pettibone 618-

Mr. Miller 624

Mr. Jacobs 628

Mr. Beltzhoover 629

Mr. Rauney 641

Mr. Atherton 648

Chairman of Committee on Elections, Hon. W. H. Calkins

Chalmers, James R., contestee, sixth district of Mississippi 338

Clerk of Committee on Elections, J. H. Ellsworth

Committee on Elections

COOK, JOHN C., vs. M. E. CUTTS, contested election, sixth district of Iowa 243

COOK vs. CUTTS, majority report ^44

minority report 252

resolutions adopted - "^'^

C'utts, M. E., contestee, sixth district of Iowa 243

H. Mis. 35 44

690 INDEX.

Page.

Davidson, R. M. H. , contestee, first district of Florida 163

Davis, Hoii. L. H. Missouri, member of Committee on Elections 3

Dibble, Samuel, claimant, second district of South Carolina 561

Elections, Committee on 3

Ellsworth, J. H. , Indiana, clerk of Committee on Elections 3

Fiuley, Jesse J., contestee, second district of Florida , 172

Florida BISBEK vs. FINLEY 172

WlTHERSPOON VS. DAVIDSON 163

Hazelton, Hon. George C., Wisconsin, member of Committee on Elections. ... 3

Herbert , Hilary A. , contestee, second district of Alabama 5

Iowa CooKr*. CUTTS 243

Jacobs, Hon. Ferris, jr., New York, member of Committee on Elections 3

Jones, Hon . G. W., Texas, member of Committee on Elections 15

JONES, J. W., vs. C. M. SJHELLEY, contested election, fourth district of Ala-
bama : 681

JONES vs. SHELLEY, majority report 681

minority report 63

LEE, SAMUEL, vs. JOHN S. RICHARDSON, contested election, first district of South

Carolina 520

LEE va. RICHARDSON, majority report , 520

minority report 521

note by compiler 520

Louisiana SMITH vs. ROBERTSON 284

LOWE, W. M., vs. JOSEPH WHEELER, contested election, eighth district of Ala-
bama 61

LOWE vs. WHEELER, majority report 62

minority report 98

resolutions adopted 78

LYNCH, JOHN R.,r. JAMES R. CHALMERS, contested election, sixth district of

Mississippi 338

LYNCH vs. CHALMERS, majority report :*:{

minority report 361

resolutions adopted 360

MABSON, A. A., vs. W. C. GATES, contested election, third district of Alabama. 8

MABSON vs. GATES, report of committee

Maine ANDERSON vs. REED 284

Manning, Van H., contestee, second district of Mississippi 287

MACKEY, E. W. M.,r>. M. P. O'CONNOR, contested election, second district of

South Carolina 561

MACKEY vs. O'CONNOR, majority report 562

minority report 578

resolutions adopted 578

INDEX. 691

Page.

Miller, Hon. S H., Pennsylvania, member of Committee on Elections 3

Mississippi BUCHANAN vs. MANNING 287

LYNCH vs. CHALMERS 338

Missouri SESSINGHAUS vs. FROST " 380

Moulton, Hon. S. W., Illinois, member of Committee on Elections 3

Oates, W. C., contestee, third district of Alabama 3

O'Connor, Michael P., contestee, second district of South Carolina 561

Paul, Hon. John, Virginia, member of Committee on Elections 3

Pt-ttiboiie, Hon. A. H. , Tennessee, member of Committee on Elections 3

Rauney, Hon. A. A., Massachusetts, member of Committee on Elections 3

Reed, Thomas B., contestee, first district of Maine 284

Richardson. John S., contestee, first district of South Carolina 520

Ritchie, Hon. J. M., Ohio, member of Committee on Elections 3

Robertson, E. W., contestee, sixth district of Louisiana 284

SKSSINGHAUS, GUSTAVUS, vs. R. GRAHAM FROST, contested election, third district

of Missouri 380

SESSINGHAUS vs. FROST, majority report 38T~

minority report 399

resolutions adopted ...- 396

Shelley, Charles M., contestee, SMITH vs. SHELLEY, fourth district of Alabama. 18

contestee, JONES vs. SHELLEY, fourth district of Alabama. 681
SMALLS, ROBERT, vs. GEORGE D. TILLMAN, contested election, fifth district of

South Carolina 430

SMALI-S vs. TILLMAN, majority report 431

minority report 483

resolutions adopted 483

SMITH, ALEXANDER, vs. E. W. ROBERTSON, contested election, sixth district of

Louisiana 284

SMITH vs. ROBERTSON, report of committee 284

SMITH, JAMES Q., vs. CHARLES M. SHELLEY, contested election, fourth district

of Alabama 18

SMITH vs. SHELLEY, majority report 18

minority report 45

resolutions adopted

South Carolina LEE vs. RICHARDSON r >20

MACKE Y vs. O'CONNOR 561

SMALLS vs. TILLMAN 430

STOLBRAND vs. AIKEN 603

STOLBRAND, CARLOS, J.,vs. D. WYATT AIKEN, contested election, third district

of South Carolina 603

STOLBRAND vn. AIKEN, report of committee 603

resolutions adopted 604

STOVALL, JOHN T., vs. GEORGE C. CABELL, contested election, fifth district of

Virginia 667

STOVALL vs. CABELL, report of committee

resolutions adopted :" ^*

STROBACH, PAUL, vs. HILARY A. HERBERT, contested election, second district

of Alabama 5

STROBACH vs. HERBERT, report of committee

resolution adopted

Thompson, Hon. W. G., Iowa, member of Committee on Elections

Tillman, George D., contestee, fifth district of South Carolina 430

692 INDEX.

Page.
Utah CANNON m. CAMPBELL 604

Virginia BAYLEY vs. BARBOUR 676

STOVALL r. CABELL 667

Wait, Hon. John T., Connecticut, member of Committee on Elections 3

Wheeler, Joseph, contestee, eight district of Alabama 61

WITHERSPOON, G. W., vs. R. M. H. DAVIDSON, contested election, first district

of Florida 163

WITHERSPOON vs DAVIDSON, report of committee 163

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